Unknown to many, mediation can serve the same purpose as a lawsuit. However, mediation has greater power in having both parties settle happily and sti
Unknown to many, mediation can serve the same purpose as a lawsuit. However, mediation has greater power in having both parties settle happily and still remain friends. Mediation is a structured, interactive process where an impartial third party assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. In this interview with E-life, Yemi Akisanya, a notable mediator in Nigeria, speaks on why more Nigerians should take a look at mediation as a mode of conflict resolution.
What is mediation, and how does it work?
Mediation is primarily a way of resolving parties’ conflicts and disputes that, unlike the adversarial process of litigation or arbitration, does not require one party to face an opposing party before a judge (in litigation) or other adjudicators, such as an arbitrator (in arbitration) who decides what the solution would be.
- It values truth over winning, and relationships over merely determining right or wrong.
- It is able to address interests and needs, which often is prevented from being elicited or addressed because of the technicality of the adversarial process.
- Finally, it places the power of resolution in the hands of the disputants, the Mediator being merely an umpire whose job is to ensure a level playing field and to facilitate an enabling environment for parties to work out a mutually acceptable settlement.
Mediation works best when parties embrace its principles as a way of life, when they allow those principles to influence their behaviours in their transactions, and when they adopt it into their culture.
Submitting to mediation is voluntary – parties are not required to continue with the mediation process after the initial meeting – but any resulting settlement agreement, like any other contract, is fully enforceable. Moreover, when it has been made a consent judgment of a law court pursuant to relevant applicable laws.
Who decides in mediation?
In mediation, a decision is never forced on the parties. Any settlement must be accepted freely by them for it to be finalized. As a result, unlike a judge or an arbitrator, the Mediator does not make decisions. The Mediator’s function is to help the parties themselves reach their resolution.
In doing this, the Mediator employs many skills peculiar to mediation. Chief of these is the ability to guide parties to detach themselves from the surrounding emotions and reactions, and skillfully help them to abandon or downplay their preconceived ideas and perceptions. As one experienced Mediator – Gajalakshmi Bhuvanarajan – recently put it, “people sometimes wrongly assume that the conflict is the result of a difference of opinion or disagreement between the two individuals. On the contrary, it is the people-related issues that cause major troubles in conflict, rather than the problem per se.”
Therefore, a skilled Mediator should be able to help parties analyze the problems objectively and resist the tendency to take the conflict too personally. This makes it easier for the parties to address find the root cause and work out an optimal solution to their conflict. 
What are the primary purposes and benefits of mediation?
The purpose of mediation is to help the parties reach a mutually satisfactory settlement of their dispute in the quickest possible time, without sacrificing efficiency, and with their best endeavours to heal and/or preserve relationships.
The benefits of mediation include:
- Cost-effectiveness and optimization of relevant cost benefits;
- Parties’ control over the outcome of the dispute-resolution process;
- Time-effectiveness of the process;
- Timely arrival at settlement;
- Total confidentiality at all its levels and stages; and above all,
- Preservation and sustenance of underlying business and personal relationships between the parties to the dispute.
Is mediation legally binding?
Absolutely! When directed by a court, mediation is fully enforceable. The mediation settlement agreement, if any, is made a fully executable and enforceable consent judgment of the relevant Court of Law. This also means that disobeying a mediation agreement can result in jail time, hefty legal penalties, and civil arrest.
Where mediation has been done independently of the court, any resultant mediation settlement agreement is as enforceable and executable as any valid contract. Parties are also at liberty to approach the law courts to have their contract made into a consent judgment. Like any other consent judgment, it will be fully executable and enforceable.
Can one go to court after mediation?
Yes! When the mediation process does not resolve the dispute at hand. However, note that the fact that the case had to be referred to the court (i.e., settlement was not achieved), does not necessarily mean that the mediation process in itself was not successful.
What is the difference between mediation and arbitration?
Mediation and arbitration are both types of alternative dispute resolution (ADR), which means they are alternatives to the costly and time-consuming litigation of a long court battle. Mediation and arbitration are similar in that they bring parties in disagreement together to resolve a problem outside of the courts, but each has its own distinct method of doing it.
The major distinction between the two is that in arbitration, the arbitrator makes a decision, called an Award. The arbitrator is also able to make certain orders such as, for example, an order for the production of documents. An arbitrator acts more like a court, albeit a private one, deciding the resolution of a dispute on the basis of evidence and law presented in the arbitration. Arbitration is legally binding, and the conclusion may be enforced in the same way that a court ruling can. The parties must consent to arbitration and execute an arbitration agreement.
Contrarily, in mediation, the Mediator does not indeed cannot, make a decision. The power and right to this lie exclusively with the parties. And, unlike the arbitrator, the Mediator has no powers to make any orders.
What are the qualities of a good Mediator?
Apart from the relevant qualifications, accreditations and certifications, a good Mediator should also possess the following qualities:
- Trustworthiness
A good Mediator must be able to inspire trust. When people attend a mediation session, they want to believe that the Mediator will keep all discussions confidential and use any information they receive to reach a mutually acceptable resolution to the situation. If clients do not get this impression, they will not talk openly. This way, the purpose of mediation is frustrated. - Credibility
The Mediator must provide a clear, accurate, and professional qualification and relevant track record, if necessary. This aids credibility. This also requires following through on any promises made. It also includes being careful to promise what he/she cannot, or may not be able, to deliver. - Patience and Tact
Mediators must be able to create and maintain rapport between themselves and the parties. This requires tact and patience. Without these, parties can quickly lose confidence in the Mediator as well as in the process. - Self-control
He must have exceptional self-control to avoid displays of anger, irritation, or weariness that may cause him to lose the initiative during questioning, while at the same time demonstrating and expressing appropriate empathy. - Objectivity
Although that is ideal, I am not sure a Mediator can ever be truly neutral or objective. However, he or she must be able to convey a sense of being so, by always balancing words and gestures accordingly, e.g., if one party gets to speak for 10 minutes, as much as possible, so should the other. - Proactivity
Achieving and maintaining the initiative are essential to a successful questioning session, just as the offensive is the key to success in combat operations. The Mediator must grasp the initiative and maintain it throughout all phases. This does not mean he has to dominate the party physically; rather, it means that the Mediator knows his requirements and continues to direct the process toward those requirements. - Alertness
The Mediator must be alert on all levels while mediating, constantly evaluating the information received both for value as well as for veracity. Simultaneously, he or she must be able to discern the accompanying body language to assess the party’s mood, truthfulness, degree of cooperation, and any power imbalance that he may need to work to correct.
- Approachability and Empathy
Good Mediators should be friendly, empathetic, and have skills in active listening. He or she should be respectful, expressing genuine concern for parties’ individual well-being. To all these should be added an appropriate sense of humour and a sense of optimism, without manipulating then parties. I like to summarize these in one word – love. - Adaptability/Flexibility/Versatility
A Mediator must adapt to the many varied personalities he will encounter. He must also adapt to all types of locations, operational tempos, and operational environments and circumstances.
What does it cost to have a Mediator?
Fees for Mediators are not regulated in Nigeria. When parties voluntarily choose Mediators and conduct their mediation processes outside the jurisdiction of the mediation institution, the Mediators’ costs are agreed at the discretion of the parties and Mediator. Guiding factors are cost-effectiveness and the stature of the Mediator.
The latter include, among other factors, the Mediator’s professional standing and experience, the value at stake in the dispute, the complexity and sophistication of the issue, the time needed to resolve the dispute, and the number of Mediators with the necessary experience level to manage the dispute within the appropriate jurisdiction.
Who can ask for such services?
Anybody involved in conflicts or disputes arising in business and commercial transactions among business partners, property owners and tenants. This includes parties in disputes over divorce and child custody issues and in conflicts between family members, neighbours, labour unions and management. A high majority of cases, apart from criminal cases, can be resolved with mediation.
USING A DELICIOUS POT OF STEW ANALOGY TO EXPLAIN MEDIATION
ANALOGY OF GLADIATORS AND THE SYMPHONY ORCHESTRA CONDUCTOR
THE RHAPSODY OF SLOGANS AND ACRONYMS IN THE MEDIATION PROCESS.
What should you not do in mediation? What are the booby traps?
There are no booby traps. While the Mediator has the obligation to create an enabling environment for parties to find mutually satisfying options and make appropriate choices for resolving their disputes, preserve their relationship, and move forward with their business, blame gaming is discouraged, and the Mediator skillfully discourages violence, abuse, rudeness, and any form of hate speech.
Does seeking mediation not be seen as a sign of weakness?
No, it definitely is not a sign of weakness. Mediation is not a sign of weakness. It makes good business sense and may result in a faster, cheaper, and more favourable conclusion.
How do you win at mediation?
You have already lost when you begin to think of ‘winning’ at mediation. Unlike the adversarial process of litigation, where lawyers are gladiators – (one must win, and one must lose) – mediation is like a symphony. The various instruments maintain their individual sounds but blended together to produce a single beautiful sound without losing their individuality. Thus blended, they become one vast, unified, combined sound that the listeners find pleasant.
How do you talk during mediation?
Make frequent eye contact; keep your body oriented toward the speaker; and nod your head to show you are listening and to encourage the speaker to say more. Do not sift through papers, cross your arms in judgment, or make faces at your lawyer or the Mediator when you hear something you believe is false or exaggerated.
Can mediation notes be used in court?
Mediation is private and confidential, and details discussed in mediation or agreements reached cannot usually be disclosed or used against you at any subsequent court hearings. Any financial information that is produced is open information and can be used outside the mediation setting.
How can one become a Mediator?
I would recommend, at the minimum, an undergraduate degree. Get some working experience (e.g., many colleges and universities recommend a minimum of 3-7 years of working experience) and then pursue accreditation with a reputable mediation professional institution. Other steps include gaining relevant work experience, improving one’s essential soft skills such as emotional intelligence, meeting facilitation and negotiation skills.
Is it a course of study or a branch of law?
It is neither. It is a dispute resolution process, and a discipline on its own.
As a Christian, is it advisable?
Oh yes! Mediation may not be the ideal solution for every dispute, but it is a good process to help reconcile differences and disagreements in a Christian way. See what the Bible says about mediation: Matthew 18:15 & 16 instructs members to settle their differences privately with each other. It is also written in Matthew 5:9 – that “Blessed are the peacemakers, for they shall be called the Sons of God.”
Moreover, our Lord Jesus Christ is referred to in Isaiah 9:6 as “Wonderful, Counsellor, Mighty God, Everlasting Father, the Prince of Peace”.
The role of a Mediator is little else, if not as a peacemaker. For this reason, I see my practice of mediation as a ministry, indeed a calling.
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