ANI COMFORT CHINYERE (MRS.) LL.B. (HONS.)., LL.M . PH.D.
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Mediators like other professionals, are expected to evolve a code of ethics to which all mediators would subscribe. Mediation ethics concerns moral issues that arise because of the specialist knowledge of the mediator and how the use of this knowledge should be governed when providing mediation services.
Many ADR institutions all over the world have drawn up ethical rules governing mediation in their institutions. These rules follow a generally accepted standard. Examples of ethics codes for mediators and mediation organizations include the 1994 Model Standards of Conduct for Mediators jointly adopted by the Society of Professionals in Dispute Resolution, American Bar Association, and American Arbitration Association; the United Nations Commission on International Trade Law (UNICITRAL) Rules; the Principles for ADR Provider Organizations, the Model Rule for the Lawyer as Third-Party Neutral, the CPR-Georgetown Commission on Ethics and Standards of Practice in ADR; Standard of Practice for California Mediators; and the London Court of International Arbitration Rules (LCIA). These documents and other ethics codes established by a variety of national and state organizations cover a variety of issues, but focus most often on common problems: recurring themes include impartiality, confidentiality, neutrality, Disclosures, neutral’s duty to avoid claiming expertise where the neutral has none, etc. The standards of conduct for mediators are intended to perform three major functions:
Lagos State is the first State to establish a Multi-Door Court House in Nigeria (the LMDC). The Former Chief Judge of Lagos State in 2008, issued a Practice Direction on Mediation Procedure. The practice direction stipulates the roles of the disputants, mediator, lawyer and the court. The Lagos Multi-Door Courthouse following acceptable international codes of practice, has developed a Code of Conduct for Mediators. These two documents serve as guide for mediation at the LMDC, and can also serve as standard codes of practice for Ad hoc mediations.
The Role of the Courts
Although mediation is quite unique and different from litigation, it has been well recognized and developed that it has become part of our justice delivery system, hence the involvement of the courts. The courts have roles to play in mediation whether the matter was referred to mediation by the court or the parties volunteered to mediate. By the provisions of Article 11 of the LMDC Practice Direction, it is the responsibility of Judges of the High Court of Lagos to:
The Role of Counsel in Mediation
In mediation, presence of counsel is not required, but it is recommended. In certain cases, where emotions are exceptionally strong, counsel may represent their clients during a mediation session. Such representation places a considerable ethical and professional obligation on the counsel, who must communicate with their clients, understand their perspective, and ensure that the mediation process is addressing their needs.
However, many lawyers are yet to understand the import of mediation as a viable ADR mechanism. Most lawyers still feel threatened by the increasing recognition and approval of mediation. In reality sometimes when lawyers accompany the disputants to the mediation, they actually act as a clog to the wheel of the mediation process. Some lawyers, out of their narcissistic interests may press it upon their clients not to accept a financial offer, or other proposal, which their client would have accepted if he had attended the mediation without the lawyer. They anticipate that mediation would rob them of plump clients’ fees. The apprehension being expressed by such lawyers are unfounded. They fail to consider that “time is money”, “justice delayed is justice denied” and the ultimate desire of their clients which is to settle the matter as soon as possible and move on with life. Furthermore, nothing stops a lawyer from still charging his client fees for services rendered by accompanying him or her to the mediation and for drafting the agreement.
If a mediator perceives that a lawyer is being obstructive during the mediation, he or she reserves the right to exclude the lawyer and caucus with the disputants alone.
The probability of success of mediation nose-dives if counsel and client are not sufficiently prepared. A lawyer should be familiar with the important facts of the case, both helpful and adverse. He or she should also be well versed in the law that applies both to the claim and to the defense, including any recent cases. Counsel should prepare the client by describing the mediation process and having a discussion of bargaining strategy.
Lawyers require to be well informed about the extreme benefits of mediation and its over riding advantages over litigation. They must not only give mediation and all other ADR processes the desired support but become advocates for the processes. Lawyers are in an excellent position to advise their clients as to their perception of how the mediation is progressing. In addition, counsel can remind their clients, if the mediation has reached an impasse, that an impasse does not mean that the mediation is hopeless, but merely that a compromise solution may need to be considered for that particular issue. It is also within the ambit of the lawyer’s role to review a proposed agreement to determine if it serves the client’s interests.
Article 9 of the LMDC Practice Direction on Mediation Procedure 2008, articulates the role of counsel in a mediation as follows:
Role of the Parties
When parties have voluntarily submitted to mediation or have been referred to mediation, they are obliged to work towards the resolution of the conflict. Uncooperative attitudes by parties in a mediation will lead to the frustration of the process.
Authority to Settle
The parties to mediation must ensure as much as possible that appropriate representatives of each party, having authority to consummate a settlement, attend the mediation conference. Where parties that do not possess absolute authority to settle a dispute, for instance, where a bank delegates its officer to attend a mediation, he will not be in a position to consider and adopt alternatives. He may have been instructed by his superior officers not to go beyond a certain limit in the negotiation. In such instances, parties without absolute authority to settle are often times rigid in their positions and this engenders delays in settlement, as he or she may require to obtain approval on any decision, before entering into any final decision.
Prior to and during the scheduled mediation conference session(s) the parties and their representatives shall, as appropriate to each party’s circumstances, exercise their best efforts to prepare for and engage in a meaningful and productive mediation. They should come prepared with their proposals. This is not to say that they should have rigid straight jacket proposals. They should come with an open mind and as proposals and options are being generated, they have to consider their BATNA (Best alternative to negotiated agreement) and WATNA (worst alternative to negotiated agreement).
Payment of the Fees
Unless otherwise agreed by the parties, it is the duty of the parties to pay the Mediation Center’s administrative fees and expenses, including the fees and expenses of the mediator. This is usually divided equally between or among the parties to the mediation.
Termination of the Mediation
Any of the parties may withdraw from the mediation at any time. The party terminating the mediation is to immediately inform the mediator and the other party in writing. The mediation will terminate when:
Duty to keep to the Terms of the Settlement
After the mediation, the parties have the important duty to carry out or refrain from doing anything agreed in the settlement. Since mediation is meant to offer the parties a win-win situation, the parties should not have difficulty in carrying out the agreement they voluntarily entered into.
Article 10 of the LMDC Practice Direction on Mediation Procedure states the role of the parties thus:
The Role of the mediator
Article 8 of the LMDC Practice Directions specified the role of the mediator as follows:
The role of the mediator is captured in more details in the LMDC Code of Conduct for Mediators 2010. The Code among other things sets down the expected ethics and role of a mediator before, during and after the mediation. The ethics fall under the following heads:
The Lagos Multi-Door Courthouse (LMDC) Code of Conduct for Mediators
Mediators should acknowledge that they have ethical and practice responsibilities and duties, practicing mediators accept that these responsibilities and duties relate to the clients, the mediation process; and their mediator colleagues.
The LMDC Mediation Code of Conduct recognizes that the principles of equality and self determination are inherent to the practice of mediation. In practice, this means that the parties have an equal opportunity to participate in the process and have the right to determine the outcome of the dispute. Mediators, in their practice, are bound to uphold these principles at all times.
The Lagos Multi-Door Courthouse (LMDC) provides mediation services and abides by the code of Conduct by having its own code and asking members of its Panel of Neutrals to respect the code.
CODE OF CONDUCT
Self defence is the fundamental principle of mediation which mediators should respect and encourage. The mediator should rely upon and encourage the ability of the parties to reach a voluntary, uncoerced agreement. The parties decide whether and under what conditions they will reach an agreement or terminate mediation.
Mediators shall provide information about their role in the mediation before mediation commences, including the fact that authority for decision making rests with the parties, not mediators. The mediator should provide information about the process, define issues, and help parties, explore options. A mediator should ensure that the parties have the opportunity to consider all proposed options and to accept or reject them.
Mediators shall not provide legal advice to the parties.
A mediator should mediate only those matters in which the mediator can remain impartial and evenhanded. If the mediator is unable to conduct the process in an impartial manner, the mediator should withdraw.
Mediators shall serve only in those matters in which they can remain impartial.
Mediators have a duty to remain impartial throughout the course of the mediation process. If mediators become aware of their lack of impartiality, they shall immediately disclose to the parties that they can no longer remain impartial and shall withdraw from the mediation.
A mediator should avoid conduct that gives the appearance of partiality toward one of the parties. The quality of mediation process is enhanced when the parties have confidence in the impartiality of the mediator.
A mediator should avoid conflicts and the appearance of conflicts of interest that could reasonably be seen as raising a question about the mediator’s neutrality. A mediator should disclose all actual and potential conflicts of interest reasonably known to the mediator. If all parties agree to mediate after being informed of actual or potential conflicts, the mediator may proceed with the mediation. If, however, the conflict of interest appears to be so seen that it casts serious doubt on the integrity of the process, the mediator should decline too proceed.
The mediator must not act, or, having started to do so, continue to act, before having disclosed any circumstances that may , or may be seen to , affect his or her independence or conflict of interests. The duty to disclose is a continuing obligation throughout the process. Such circumstances shall include: any personal or business relationship with one of the parties; any financial or other interests, direct or indirect, in the outcome of the mediation, or the mediator or a member of his or her firm, having acted in any capacity other than mediator for one of the parties.
In such cases, the mediator may only accept or continue the mediation provided that he/she is certain of being able to carry out the mediation with full independence and neutrality in order to guarantee full impartiality and that the parties explicitly consent.
Mediators or their associates or partners shall not establish a professional relationship with any of the parties in a matter related to the mediation which could give rise to a conflict of interest, without the consent of all the parties.
Mediators’ commitment is to the parties and the process and they shall not allow pressure or influence from third parties (persons, service providers, mediation facilities, organizations or agencies) to compromise the independence of the mediator.
Any person who offers to serve as a mediator gives the parties and the public the expectation that the mediator has the competency to mediate effectively. Training and education in mediation are necessary for effective mediation as well as continuous updating of their education and practice in mediation skills, having regard to any relevant standards or accreditation schemes.
The mediator should also have familiarity with the general principles and law governing any area in which the mediator is willing to serve.
The general rule is that a mediator may not voluntarily disclose and may not be required to disclose any information or documents that are exchanged for or during the mediation process or a communication provided in confidence to the mediator.
Exceptions to this “non-disclosure requirement” include:
Mediators shall inform the parties of the confidential nature of mediation.
If mediators hold private sessions (breakout meetings, caucuses) with a party, they shall discuss the nature of such sessions with all the parties prior to commencing such sessions. In particular, mediators shall inform parties of any limits to confidentiality applicable to information disclosed during private sessions.
Mediators shall maintain confidentiality in the storage and disposal of mediation notes, records and files.
A mediator should work to ensure a quality process in order for mediation to be effective. A quality process requires a commitment by the mediator to diligence and procedural fairness. There should be adequate opportunity for each party in the mediation to participate in the discussions. The parties decide when and under what conditions they will reach an agreement or terminate a mediation.
Mediators shall make reasonable efforts to ensure the parties understand the mediation process before mediation commences.
Mediators have a duty to ensure that they conduct a process which provides parties with the opportunity to participate in the mediation and which encourages respect among the parties.
Mediators shall inform parties to a dispute that mediation is most effective when the parties with full authority to settle are in attendance and when they are willing to consider options for settlement.
Mediators who are lawyers shall not represent any party(ies) to the mediation.
Mediators have an obligation to acquire and maintain professional skills and abilities required to uphold the quality to the mediation process.
Advertising or any other communication with the public concerning services offered or regarding the education, training, and expertise of the mediator should be truthful. Mediators should refrain from promises and guarantees of results.
In advertising or offering services to clients or potential clients:
Mediators shall provide accurate information about their education, background, mediation training and experience in any representation, biographical or promotional material and in any oral explanation of same.
The Lagos Multi-Door Courthouse (LMDC) shall provide parties with the fee structure, likely expenses and any payment retainer requirements, before mediation commences.
In an LMDC instituted mediation, the mediator shall not discuss the issue of compensation, charges or fees with any of the parties or their counsel.
The LMDC shall not base its fees on the outcome of the mediation, whether there is a settlement or what the settlement is.
Mediators have an obligation: to use their knowledge to help educate the public about mediation; to make mediation accessible to those who want to use it; to correct abuses; and to improve their professional skills and abilities.
The LMDC and the mediators shall ensure before the mediation commences that the parties understand the terms of mediation whether or not they are contained in a written agreement/contract to mediate, which terms shall include but not limited to the following:
Mediators shall withdraw for the following reasons:
It should be noted that nothing in the Lagos Multi-Door Courthouse Mediation Code of Conduct replaces, supersedes or alienates ethical standards and codes which may be imposed or additionally imposed upon any mediator by virtue of the mediator’s professional calling.
It is important for the success of mediation as a dispute resolution process for all mediators to adhere strictly to the Code of Conduct.
SOME FREQUENTLY ASKED QUESTIONS ABOUT MEDIATION
Mediation is a non-adversarial problem-solving process that brings in a neutral third party, the Mediator, who helps facilitate communication between disputing Parties to reach a mutually beneficial resolution.
A mediator, who may be a legal practitioner, mental health professional, clergy, or other professional trained in alternative dispute resolution techniques, facilitates this process by helping the parties to identify issues, to negotiate constructively and to explore settlement alternatives.
The parties make their own decisions usually with the help of their lawyers. Therefore, they retain complete control over the outcome and do not run the risk of having an adverse decision imposed upon them by a judge or arbitrator.
Mediation is not about deciding who is right or wrong, who is innocent or at fault; nor is it concerned with declaring a winner and a loser.
Mediation is not backward looking. The focus is not on who said or did what in the past. Instead, the goal is to find a practical solution and settlement that is acceptable to everyone involved, having regard to the different interests, needs and concerns.
Mediation is a less expensive, less stressful and more effective option to settle conflicts, enabling individuals who will need to continue interacting with each other to do so in a different way.
The participants are the parties to the dispute. If counsel has been retained, the lawyers may attend to advise their clients. Mediation is confidential and private (away from the very public forum of a courtroom). Friends and family can attend the mediation as support persons for a Party as long as the other Party agrees. However, they cannot speak during or participate in the actual mediation process.
In matrimonial disputes, children do not generally participate in the private mediation process. However, if the children are old enough, the parties are encouraged to check in with them about what they would like to see happen.
In mediation, the Mediator does not make decisions for the Parties. She/He makes suggestions or brings up alternatives, but there is no decision-making power on the part of the Mediator. The mediation process belongs to the Parties and they make the final decisions about what is best for them
The types of cases appropriate for mediation include:
Yes, you can. However, due to the confidentiality of mediation, discussions and written documents are not allowed to be brought into a subsequent court proceeding. Also, the Mediator cannot be subpoenaed to testify in court about what happened in mediation.
SOME OBJECTIONS TO MEDIATION AND APPROPRIATE RESPONSES
4.“We think the other side is being unreasonable or engaged in a ‘fishing expedition”
12.“We need a sound public policy decision and the policy makers won’t be at the able, so how can we craft a resolution even if we wanted to?”