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]

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[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)