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.
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