Essential Features of Mediation

Mediation theory and practice draw from several established disciplines like psychology, sociology, management, political science, and law, and many more, depending on the practitioner’s philosophical worldview and actual orientation. The essential features of mediation reflect practices from some of these disciplines. These features are entrenched in informality and acceptability,[1] both of which make it easy for parties to engage voluntarily and drive the process themselves while enjoying the privilege of its confidentiality.

.

It is voluntary (unless court ordered)

This feature arguably gives mediation its essence as a non-binding dispute resolution process. Autonomy of participants to accept or reject mediation agreement underscores both a right to choose to participate in the process and to a right to freely make enforceable agreements.[2] Disputants retain their right to terminate mediator assisted negotiations and pursue any alternative method to address and settle or resolve their differences.[3] Mediation is arguably the only dispute resolution process to offer a valuable opportunity for self-determination that the common law courts and other social institutions do not. According to Welsh,

Believers in the originally dominant vision of self-determination assumed that the disputing parties would be the principal actors and creators within the mediation process. The parties would: 1) actively and directly participate in the communication and negotiation that occurs during mediation, 2) choose and control the substantive norms to guide their decision-making, 3) create the options for settlement, and 4) control the final decision regarding whether or not to settle.[4]

The dominant vision of self-determination in mediation accepts that parties could not be forced into the mediation process, nor could a settlement be obtained without their voluntary and informed consent.[5] Some judicial systems have incorporated mediation into the adjudicatory process and seem to attempt an elimination of the voluntariness of entrance into what has become court-annexed mediation. Rules of court require litigants to show an attempt at mediation. These courts have not eliminated the requirement that any settlement be voluntary.[6] Voluntariness ensures that the parties knowingly and willingly enter into both the proceeding and any resulting agreement. Participation in the mediation is voluntary at all stages until an agreement is reached. The voluntary agreement reached is lawful and enforceable as a contract between the parties as all are aware of their rights.[7]

Party Driven/Client Centred

Mediation is a party-driven process that focuses on a bottom-up approach to conflict intervention. It presents a movement from the heavy and solitary reliance on the intervener’s conception of how conflict should be managed or must evolve[8] to a more party inclusive decision-making process. Mediation involves the balancing of disputants’ own interests and opportunities. It strives to achieve more creative, targeted, and satisfying resolutions that represent a win to all parties in the conflict situation. When only one party requests mediation and the other party refuses to accept active participation in the process, success is slim.[9] Where a court refers a dispute to mediation, the reluctant party is likely to view the referral as a waste of time and may refuse to participate in good faith. 

A party-driven process views the role of the mediator as supporting and never supplanting party deliberation and decision-making on every matter regarding process or outcome and supports inter-party communication at every point to enhance mutual understanding.[10] Mediators use specific practices that fully respect and support party decision making, on both substance and process. Weaker parties are not trapped in a risky litigation process from which they can’t leave; in which they can’t express themselves fully or effectively, and where they are lulled into a false sense of safety by legal practitioners who protect the practice of litigation. Parties in mediation are supported to exercise their own voice to demand justice and to avoid dangerous provocation. They are free to leave if they feel the process is leading to injustice, as they are the best judges of what justice means to them.[11] Mediation supports social justice as an important goal.[12]

Confidentiality

Confidentiality in mediation refers to confidentiality of the mediation process.[13] Parties in mediation enjoy the privilege of confidentiality of communication disclosed during the process. Proceedings are not held public and only the persons whose presence is by consent of the parties could attend mediation proceedings.[14]

There are two levels of confidentiality in mediation. The first is the confidentiality of communication that occurs at the mediation session. Mediation-related communications are inadmissible in evidence and may not be raised in court nor should they be discussed with parties who are not directly related to the mediation or the lawsuit. This confidentiality protects not only the statements made at mediation but also any settlement offers conveyed during the session.

The second level of confidentiality covers anything told privately to the mediator during individual caucuses. These private communications with the mediator may not be disclosed to the opposing party unless the mediator is specifically authorized by the party making the disclosure.[15] Freedman and Prigoffs[16] note the conflict between the desire for confidentiality in mediation and the emphasis on consideration of all available evidence in the traditional justice system.[17] According to these authors, communications in mediation originate in a confidence that the disputant believes such communication will not be disclosed.  It is also essential to the full and satisfactory maintenance of the relationship between the parties. Without confidentiality, the mediation process becomes susceptible to a variety of potential disruptions. Parties will be reluctant to enter a process where there is fear that it might be used against them in subsequent legal action. Even if they do participate, the threat of disclosure would render the process ineffective and a nullity.[18] In mediation, confidentiality is critical to the successful resolution of a dispute.[19]

Non-binding

The outcome of mediation is often non-binding unless disputants indicate, in a written agreement, that it is to be a binding outcome. The written agreement becomes a contract between the parties and such agreement becomes binding and enforceable. The fact that mediation is non-binding makes it inviting in dispute situations where knowledge of its process exists. The substantive agreement reached may be either self-executing or non-self-executing. According to Young:

A self-executing agreement is one which is either (1) carried out in its entirety at the time it is accepted, or (2) formulated in such a way that the extent to which the players adhere to its terms will be self-evident. A non-self-executing agreement, on the other hand, is one which requires continuing performance which may be difficult to measure in the absence of special monitoring arrangements.[20]   

The idea of non-binding mediation is that parties select to mediate their disputes on their own and reach agreements without external pressure, which agreement they can decide to make binding or non-binding. In court-ordered mediation, disputants are bound by the eventual settlement of their dispute unless the court determines otherwise. Court-ordered mediation is an integral part of the litigation process and differs greatly with mediation entered into voluntarily or as a result of a clause in a contract.

---

[1] Zaleniene, Inga And Tvaronaviciene, Agne (2010), The Main Features and Development Trends of Mediation in Lithuania: The Opportunities For Lawyers, Jurisprudence, Mykolas Romeris University, Vol. 1, 119, p. 230.

[2] More, C.W. (2014), The Mediation Process, Practical Strategies for Resolving Conflict, Fourth Edition, Jossey-Bass,pp. 27-28

[3] Ibid, p. 311

[4] Welsh, N.A. (2001), The Thinning Vision of Self-Determination in Court-Connected Mediation: The Inevitable Price of Institutionalization?  6 Harvard Negotiation Law Review, 1

[5] More, C.W. (2014), op. cit., pp. 435-476

[6] Failinger, Marie A. (2014), Parallel Justice: Creating Causes of Action for Mandatory Mediation, University of Michigan Journal of Law Reform, Vol. 47, Np. 2, pp. 389-390

[7] Cole, Lynn (2017), Exploring International Mediation, Past, Present and Beyond, In: Georgakopoulos, Alexia (ed), The Mediation Handbook: Research, Theory, and Practice, Routledge, p. 318

[8] Folger, J.P. and Bush, R.A. (2010), Transformative Practice in Ethno-Political Conflict: An Emerging Initiative, In: Folger, J.P. et al (eds), Transformative Mediation: A Sourcebook, Resources for Conflict Intervention, Practitioners and Programs’, ACT and ISCT, p, 419

[9] Sandu, Ciprian (2013), Mediation: Measuring the Success of Mediation, Conflict Studies Quarterly, Iss. 2, pp. 30-39

[10] Bush, R.A.B. (2013), Mediation Skills And Client-Centered Lawyering: A New View of the Partnership, Clinical Law Review, p. 435

[11] Bush, R.A.B. And Folger, J.P. (2012), Mediation And Social Justice: Risks And Opportunities, Ohio State Journal On Dispute Resolution, Vol. 27, No.1, p. 44

[12] Ibid, p. 38

[13] Heisterkamp, B.L. (2017), Encouraging Effectiveness through Communication Competence in Community Mediation, In: Georgakopoulos, Alexia (ed), The Mediation Handbook: Research, Theory, and Practice, Routledge, p. 231

[14] Ogbuanya, N.C.S. (2012), Confidentiality in Mediation Proceedings, In: Azinge, P. 319

[15] Sandu, Ciprian (2013), Mediation: Measuring the Success of Mediation, Conflict Studies Quarterly, Issue 2, p. 37

[16] Freedman, L.R. and Prigoffs, M. L. (1986), Confidentiality in Mediation: The Need for Protection, Journal on Dispute Resolution, Vol. 2, No.1, p. 39

[17] Ibid, p. 39

[18] Ibid, pp.43-44

[19] Cole, Lynn (2017), Exploring International Mediation, Past, Present and Beyond, In: Georgakopoulos, Alexia (ed), The Mediation Handbook: Research, Theory, and Practice, Routledge, p. 317

[20] Young, O. R. (1972), Intermediaries: Additional Thoughts on Third Parties, Journal of Conflict Resolution, Vol. 16, No. 1, p. 58  

Understanding Mediation

Apparently, all the rules of court relating to procedure in the courts of record encourage the use of mediation as part of a package of Alternative Dispute Resolution processes in dispute settlement.[1] When Orojo and Ajomo made use of the words mediation and conciliation as synonyms,[2] they created the impression that mediation may be conducted according to the provisions of the Arbitration and Conciliation Act[3] and that said mediation may be regulated by the Conciliation Rules. The author’s conclusion is based on their appreciation of Brown and Marriot's[4] observation that “[T]he term ‘mediation’ is often used interchangeably with ‘conciliation’; sometimes, however, mediation is understood to involve a process in which the mediator is more pro-active and evaluative than in conciliation; and sometimes the reverse usage is used; there is no national or international consistency of usage of these terms.”[5] This position has probably continued to influence the orientation of lawyers to mediation practice.   

Mediation may have similarities with conciliation, but the two terms are not synonymous. Conciliation under the UNCITRAL Rules, incorporated into the Arbitration and Conciliation Act,[6] is an alternative to arbitration.[7] Ezejiofor acknowledged this status from the identical provisions in the Act both for domestic disputes[8] and international commercial disputes.[9] The difference between sections 37 and 55 of the Arbitration and Conciliation Act is the addition of the phrase ‘international commercial dispute’ at section 55 and the direction for the conduct of such conciliation under the Conciliation Rules set out in Schedule 3 to the Act.

The provision in relation to domestic conciliation is in Part II of the Arbitration and Conciliation Act and provides that “[N]otwithstanding the other provisions of this Act, the parties to any agreement may seek amicable settlement of any dispute in relation to the agreement by conciliation under the provisions of this Part of this Act.”[10] The Arbitration and Conciliation Act specifies how conciliation is initiated,[11] and sets rules for appointment of conciliators,[12] timelines for the conduct of proceedings,[13] and method of conducting the proceedings.[14] The Arbitration and Conciliation Act gives conciliators power to draw up record of settlement based on the terms of settlement proposed to parties.[15] The procedure in mediation is different.

Mediation is an assisted negotiation process. In mediation as assisted negotiation, the disputing parties are merely assisted to communicate and understand each other to reach an agreement.[16] Mediation introduces an acceptable third party into the negotiation process[17] to facilitate collaboration between disputing parties by enhancing communications, and use of effective problem-solving and negotiation procedures[18] toward reaching agreement(s) that cater to the disputant’s needs.[19]

The different definitions of mediation generally attempt to reflect the things that mediators do or hope to achieve and describe these against related dispute resolution processes.[20] Bercovitch defined mediation as “a process of conflict management, related to but distinct from the parties’ own negotiation, where those in conflict seek the assistance of, or accept an offer of help from, an outsider (whether an individual, an organisation, a group, or a state) to change their perceptions or behaviour, and to do so without resorting to physical force or invoking the authority of law.”[21]

Mediation is not synonymous with conciliation. In its purest form, mediation facilitates settlement by encouraging disputing parties to explore underlying issues in their disputes relevant to their needs, while acknowledging the dispute from the other side’s perspective.[22]

---

[1] Order 16 Rule 1, Court of Appeal Rules 2011; Order 3 Rule 11, High Court of Lagos State (Civil Procedure) Rules 2012

[2] Orojo, J. O. and Ajomo, M.A. (1999), Law and Practice of Arbitration and Conciliation in Nigeria, Mbeyi and Associates (Nigeria) Limited, p. 337

[3] See ss 37-42, Arbitration and Conciliation Act, Cap.18, LFN 2004

[4] Orojo, J.O. and Ajomo, M.A., op. cit, p. 337

[5] Brown, H.J. and Marriot, A.L. (1993), ADR Principles and Practice, Sweet and Maxell, p. 108

[6] Cap.18, LFN 2004

[7] Ezejiofor, Gaius (1997), The Law of Arbitration in Nigeria, Longman, p. 185

[8] See sections 37-42, Arbitration and Conciliation Act

[9] See section 55, and Third Schedule, ibid

[10] Section 37, Arbitration and Conciliation Act Cap

[11] Section 38(1)

[12] Section 40

[13] Section 39

[14] Section 41

[15] Section 42(1) & (2)

[16] Kovach, K.K. (2015), The Mediation Coma: Purposeful or Problematic, Cardozo Journal of Conflict Resolution, Vol. 16, p. 773

[17] Reis, Shauna and Harter, Susan (2012), In Justice inAccord, BookLocker.com, Inc., Bradenton, FL., p.38; see also, United Nations (Guidance for Effective Mediation, 2012), United Nations, New York, p. 4; Bondy, V. and Doyle, M. (2011), Mediation in Judicial Review: A Practical Handbook for Lawyers, The Public Law Project, p. 1

[18] Moore, C.W. (2014), The Mediation Process, Practical Strategies for Resolving Conflict, Fourth Edition, Jossey-Bass, p. 8

[19] d’Estree, T.P (2011), Problem-Solving Approaches, In: Bercovitch, et al., The Sage Handbook of Conflict Resolution, Sage Publications, p. 143

[20] Bercovitch, Jacob (2011) Mediation and Conflict Resolution, In: Bercovitch, Jacob, Kremenyuk, Victor and Zartman I. William, The SAGE Handbook of Conflict Resolution, Sage Publications,  p. 341

[21] Ibid, p. 342; see also Doherty, Nora & Guyler, Marcelas, (2008), The Essential Guide to Workplace Mediation & Conflict Resolution, Kogan Page, London, p.7

[22] Broker, Penny (2013), Mediation Law: The Journey through Institutionalism to Juridifiction, Routledge, p. 6 (internal citations omitted)

By Whatever Mediation Model or Style

Mediation scholars and practitioners are not really agreed that there are differences in what mediation entails. They, however, refer to certain differences in (i) approach, (ii) orientation, (iii) style, (iv) artistry and (v) model of what they term mediation. But why do scholars and practitioners worry themselves about what these few words actually mean? How have scholars and practitioners of mediation reached the point where there is a conflict over a few simple words? Or, is there no conflict, and there indeed exists differences in (i) approach, (ii) orientation, (iii) style, (iv) artistry and (v) model that users of mediation can discern?

I choose to begin this ‘outburst’ with these questions because they indeed fashion the way we look at the practice of mediation. Since the establishment of the Lagos Multidoor Courthouse, several states of the federation have followed suit. It is still unclear what this means for justice delivery. What it does mean for alternative dispute resolution practice is that there is increased visibility of professed professional ADR practitioners, including mediators. Those trained as lawyers and a few whose calling moved them to pick up the practice of mediation have seen an avenue that is not necessarily an automatic reduction in revenue stream. Between these two classes of professed ADR practitioners, there is the assumption that lawyers are the gateway to ADR (and mediation) practice. This is further from the truth. But it is neither here nor there without a proper understanding of the meaning of mediation within the context of an ADR continuum that includes litigation.   

Mediation has been described as the facilitation of an agreement between two or more disputing parties by an agreed-upon third party. No universally accepted definition has indicated that such a process must be delivered by members of a particular discipline. Most definitions of mediation simply mention the fact that mediation is ‘assisted negotiation’ where the third party is neutral and cannot give a binding opinion as a resolution to the problem or dispute between disputing parties. The many vague and capacious potpourri of procedures deemed to constitute the practice of mediation are responsible for the argument that has distinguished mediation practice as to (i) approach, (ii) orientation, (iii) style, (iv) artistry and (v) model in both scholarship and practice. Nonetheless, this descriptive vagueness is a virtue if the definition's purpose is to allow for and encourage a heterogeneous mediation practice. This vagueness becomes a definitional vice, however, when attempting to distinguish between models and to clarify how traditional mediation differs from sibling processes. I will attempt an exploration within our justice ecosystem as a means of distinguishing mediation’s own sibling rivalry to debunk any fixation on one member of the mediation family as superior and overarching and its pre-eminence inviolable.  

My analyses will illuminate the seeming ‘contradictions’ in mediation theory and practice. I should then affirm the potential of mediation in all its perceived contradictions as a liberatory process. When mediation scholarship points out some lack of clarity among mediators about what is actually happening when they conduct mediation sessions, it confirms the promise of mediation as an alternative to all the formulaic and structured adjudication processes.

Trained mediators will claim ‘a toolbox’ from which they draw inspiration to handle their sessions. The confusion about the nature of the toolbox among practitioners means that parties and attorneys are also unclear about what to expect from any mediator. This disempowers participants in regard to their ability to actually exercise self-determination, arguably the most basic element that distinguishes mediation from other dispute resolution processes. I intend to further examine mediation practice domiciled within the Nigerian Court System, highlighting especially foundation practitioners’ scholarly base, as well as the impact and influence such bases have on the growth of mediation in the country.

The major training centres for practitioners in the country are (i) Negotiation and Conflict Management Group, NCMC, (ii) the Society for Professional Dispute Resolution, SPIDR, (iii) the African Mediation Association, AfMA (all of which are listed as trainers for the Lagos Multidoor Courthouse), and (iv) the Institute of Chartered Mediators and Conciliators, ICMC. It is unclear which particular (i) approach, (ii) orientation, (iii) style, (iv) artistry and (v) model either of these training providers align with in packaging training material. What has come up in interactions with mediation practitioners is the feeling of alienation of mediators trained by one and not the other training facilitator. Ironically, most founding mediation practitioners in the country received their training outside the shores of Nigeria.

The Centre for Dispute Resolution, CEDR, a United Kingdom-based Trainer has trained many Nigerian founding mediation practitioners. CEDR training approach has influenced most approaches to mediation and ADR training in the country. It is inevitable that CEDR philosophy will influence and motivate the practice of mediation too.

This blog will attempt to show how to use mediation and conflict resolution theories, techniques and practices to try to make the world a fairer, better place. This blog will not argue for any one (i) approach, (ii) orientation, (iii) style, (iv) artistry or (v) model, but will explain all. My explanation should give practitioners the right to choose which (i) approach, (ii) orientation, (iii) style, (iv) artistry or (v) model of mediation practice to engage in. What you determine to learn will be yours to help you appreciate the Other in your mediation practice, and in life.