MEDIATION ETHICS AND ANALOGOUS ISSUES

ANI COMFORT CHINYERE (MRS.) LL.B. (HONS.)., LL.M . PH.D.

 

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MEDIATION ETHICS

 

Introduction

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:

1. To serve as a guide for the conduct of mediators;
2. To serve as information to mediating parties; and
3. To promote public confidence in mediation as a process for resolving disputes.

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:

1. Control and manage proceedings in Court and issue orders which would encourage the adoption of ADR methods in dispute resolution.
2. Mandatorily refer parties directly to the LMDC to explore settlement of their dispute
3. Ensure the adoption and enforcement of Terms of Settlement reached at the LMDC in the same manner as a judge or Order of Court.

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:

1. The role of counsel is to give regard and ensure client’s accord respect to notices, invitations and directives from the LMDC.
2. Ensure the appearance of his client at every mediation session.
3. Explore with the client various options available so as to ensure speedy conclusion of the mediation process.
4. Respect the confidentiality of the mediation session(s).
5. Embrace a cultural change and accept an advisory role while parties lead role in mediation sessions.
6. Be cooperative and encourage his client to be cooperative during mediation sessions to ensure a speedy resolution of the dispute.

 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.

Good Preparation

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:

• A party withdraws from the mediation; or
• The mediator, at his/her discretion, withdraws from the mediation by a written declaration, stating that further efforts at mediation are no longer worthwhile; or
• A written settlement agreement is concluded. (Article 18 of the LMDC Practice Direction on Mediation Procedure)

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:

1. The role of the parties is to attend all mediation sessions either personally or by a duly authorized representative.
2. Parties are expected to attend the ADR session in good faith without undue requests for adjournment or unwarranted delays
3. Parties must prepare adequately for an ADR session, be actively involved and be willing to explore various options towards settlement.
4. Respect the confidentiality of the mediation sessions.
5. Cooperate fully with the mediator and the other party throughout the mediation process to ensure a speedy resolution of the dispute.

 

The Role of the mediator

Article 8 of the LMDC Practice Directions specified the role of the mediator as follows:

1. The role of Mediator is to assist the parties in an impartial manner in their attempt to reach an amicable settlement of their dispute. He does not have the authority to impose a settlement on the parties.
2. The Mediator should in his conduct of the mediation process take into account the circumstances of the case, the underlying interest of the parties and the need for a speedy settlement of the dispute

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:

1. Principle of self determination.
2. Impartiality.
3. Conflict of interest.
4. Competence.
5. Confidentiality.
6. Quality of the Process.
7. Advertising and Solicitation.
8. Obligation to the Mediation Process
9. Agreement to Mediate
10. Termination or Suspension of Mediation

 

 

 

The Lagos Multi-Door Courthouse (LMDC) Code of Conduct for Mediators

(May 2010)

 

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.

 

Objectives    

• To provide guiding principles for mediator’s conduct;
• To provide a means of protection for the public;
• To inform the mediating parties;
• To promote confidence in mediation as a process for resolving disputes. To further promote such confidence, mediators are encouraged to engage in efforts to educate the public about the value and the use of mediation, provide pro bono mediation services and assist new practitioners in the field

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

1. SELF DETERMINATION: A MEDIATOR SHOULD RECOGNIZE THAT MEDIATION IS BASED ON THE PRINCIPLE OF SELF-DETERMINATION BY THE PARTIES.

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.

 

2. IMPARTIALITY: THE CONCEPT OF MEDIATOR IMPARTIALITY IS CENTRAL TO THE MEDIATION PROCESS. A MEDIATOR SHOULD CONDUCT THE MEDIATION IN AN IMPARTIAL MANNER.

  

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.

 

3. CONFLICT OF INTEREST: A MEDIATOR SHOULD AVOID INVOLVEMENT WHERE IT MAY BE INFERRED THAT THE PRIVATE INTEREST OF THE MEDIATOR COULD CONFLICT WITH THOSE OF A PARTY

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.

 

4. COMPETENCE: A MEDIATOR SHOULD MEDIATE ONLY WHEN THE MEDIATOR HAS THE NECESSARY QUALIFICATIONS.

 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.

 

5. CONFIDENTIALITY: A MEDIATOR SHOULD MAINTAIN CONFIDENTIALITY OF MEDIATION COMMUNICATIONS.

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:

1. Written consent of all the parties and the mediator
2. A mediation communication which reveals an actual or potential threat to human life; the intent to commit a felony, inflict bodily harm or threaten the safety of a child under the age of eighteen years.
3. The communication is required by statute or the court to be made public, and
4. In an action alleging willful or wanton misconduct of the mediator.
5. When the information/documentation is non-identifiable, (unless all the parties otherwise authorize identification) and is used for research, statistical, accreditation, or educational purposes and is limited only to what is required for these purposes.

 

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.

 

6. QUALITY OF THE PROCESS: A MEDIATOR SHOULD CONDUCT THE MEDIATION FAIRLY AND DILIGENTLY.

 

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.

 

7. ADVERTISING AND SOLICITATION: A MEDIATOR SHOULD BE TRUTHFUL IN ADVERTISING AND SOLICITING FOR MEDIATION.

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.

 

8. FEES: THE LMDC SHALL FULLY DISCLOSE AND EXPLAIN THE BASIS OF COMPENSATION, FEES, AND CHARGES TO THE PARTIES.

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.

 

9. OBLIGATIONS TO THE MEDIATION PROCESS: MEDIATORS SHOULD STRIVE TO IMPROVE THE PRACTICE OF MEDIATION.

 

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.

 

10. AGREEMENT TO MEDIATE

 

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:

1. Confidentiality of communication and documents
2. The right of the mediator and parties to terminate or suspend mediation
3. Fees expenses, retainer, method of payment and what, if any, fee there is for cancellation, lateness or delay
4. The fact that the mediator is not compellable as a witness in court proceedings by any parties to the mediation.

 

11. TERMINATION OR SUSPENSION OF MEDIATION

 

Mediators shall withdraw for the following reasons:

1. 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.
2. Mediators who have disclosed a conflict of interest to the parties shall withdraw as mediator, unless the parties consent to retain the mediator.
3. Mediators may suspend or terminate mediation if requested by one or more of the parties.
4. Mediators may suspend or terminate mediation if in their opinion:

 

1. The process is likely to prejudice one or more of the parties
2. One or more of the parties is using the process inappropriately
3. One or more of the parties is delaying the process to the detriment of another party or parties
4. The mediation process is detrimental to one or more of the parties or the mediator
5. It appears that a party is not acting in good faith
6. There are other reasons that are or appear to be counterproductive to the process.

 

5. Mediators shall terminate mediation if the above conditions are not rectified.

 

 

12. OTHER CONDUCT OBLIGATIONS

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.

 

13. CONCLUSION

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

 

• What is 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.

• Who participates in the mediation?

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

 

 

• What Are the Advantages to Mediation?
• Speedy: There can be little more damaging and socially destructive than protracted litigation – it terminates businesses, destroys marriages, and damages health. A mediation can be set up in a matter of weeks, if not days. It thereby avoids the many undesirable consequences of protracted litigation, and prevents the inevitable drain on costs and resources.
• You get to decide: In litigation, parties relinquish control of their dispute: the lawyers and the Courts control the procedure, the level of disclosure, the evidence to be given, and the Judge has exclusive control of the outcome. In mediation, the responsibility and authority for coming to an agreement remain with the people who have the conflict. The dispute is viewed as a problem to be solved. The mediator doesn’t make the decisions, and you don’t need to “take your chances” in the courtroom. Many individuals prefer making their own choices when there are complex tradeoffs, rather than giving that power to a judge. You need to understand your legal rights so that you can make decisions that are in your own best interests.
• The focus is on needs and interests: Mediation examines the underlying causes of the problem and looks at what solutions best suit your unique needs and satisfy your interests.
• For a continuing relationship: Parties who end up in court, with a winner and a loser, will rarely be able to continue any commercial, contractual or other relationship. Mediation on the other hand, allows parties to reach settlements with which they are both content, thereby enabling them to continue with pre-existing business or other relationships. Neighbors, divorcing parents, supervisors and their employees, business partners, and family members have to continue to deal with each other cooperatively. Going to court can divide people and increase hostility. Mediation looks to the future. It helps end the problem, not the relationship.
• Mediation deals with feelings: Each person is encouraged to tell his own story in his own way. Acknowledging emotions promotes movement towards settlement. Discussing both legal and personal issues can help you develop a new understanding of yourself and the other person. This has some therapeutic effect as it allows the parties their day in court more effectively than by going to court itself by allowing each person in dispute to be truly ‘heard’, to have their full and frank say to the mediator as well as to the other side in a ‘safe’ environment. It also facilitates apologies to be given or explanations made – which is often what parties really
• Higher satisfaction: Participants in mediation report higher satisfaction rates than people who go to court. Because of their active involvement, they have a higher commitment to upholding the settlement than people who have a judge decide for them. Mediations end in agreement 70 to 80% of the time and have high rates of compliance.
• Informality: Mediation can be a less intimidating process than going to court. Since there are no strict rules of procedure, this flexibility allows the people involved to find the best path to agreement. Mediation can deal with multiple parties and a variety of issues at one time. In family mediation, for example, two children, Mom, Dad and Grandma might be involved. They may need to talk about chores, school performance, curfew, allowances, discipline, and the use of the kitchen.
• Lower cost: The court process is expensive, and costs can exceed benefits. It may be more important to apply that money to solving the problem, to repairing damages, or to paying someone back. Mediation services are available at low cost for some types of cases. If you can’t agree, other legal options are still possible. Even a partial settlement can lessen later litigation fees.
• Privacy: Mediation is totally confidential with each party retaining complete control over whether to reveal and what matters can be revealed. Confidentiality clauses are also frequently included in settlement agreements. This is unlike most court cases, which are matters of public record and often attracts unwanted publicity, with parties obliged to ‘wash their dirty linen in public’.
• Diminishes imbalances of power :Parties often feel overwhelmed when fighting large corporations – at mediation they are simply individuals around the table, and an effective mediator can protect parties against such power imbalances.
• In What Cases Might Mediation Be Used?

The types of cases appropriate for mediation include:

• Business: Collective bargaining between labor unions and management is one of the most familiar models of mediation. Workplace disputes between business partners, co-workers, or supervisor and employee can be mediated to correct particular problems and continue productive relationships. Contract disagreements, insurance claims, real estate disputes, construction conflicts, and cases between landlord and tenant, consumer and merchant, and farmer and lender are common.
• Community: Representatives of interest groups, businesses, and several layers of government can come together to negotiate agreements on public policy development. Cases concerning the environment, land use planning, parking, zoning, and nuisance complaints are often mediated.
• Small Claims: Civil cases involving smaller amounts of money or neighborhood disagreements are often sent to mediation.
• Divorce and Child Custody: Mediation offers a couple the chance to define what is most workable for their particular situation and to tailor an agreement that reflects their own circumstances. It can enable future joint decision-making. Visitation, property division, alimony, and unique circumstances such as relations with grandparents or stepfamilies can be included. Child custody disputes are automatically sent to mediation in some jurisdictions. Custody and visitation issues are evaluated in terms of the child’s best interests and the parents’ shared concerns. The privacy of mediation can make it easier for people to discuss emotional matters.
• Interpersonal: Arguments between individuals may not necessarily involve a legal claim. Roommate and family conflicts are often well-served by mediation.
• School or University: Students from elementary school to college have been taught to successfully mediate disputes among their peers. Courts in Florida and California refer some truancy and disciplinary cases to mediation between parents, students and school personnel. Some school districts mediate controversies with parents of handicapped students over their plans for meeting the child’s educational needs.
• Criminal: Mediation of minor non-violent crimes can help unclog the courts and bring about restitution. Direct communication between victim and offender can be beneficial to both, and can make it easier to deal with the defendant in the future. Cases often go to mediation after the person has been found guilty of the crime. Vandalism, passing bad checks, theft, and juvenile cases are the sorts sent to mediation.

 

• If it doesn’t work out, can parties still go to court?

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.

• When is it advisable not to mediate?

• When the use of mediation will involve the risk of personal danger to one or more parties.
• When there is extreme power imbalance, for instance in cases involving violence (such as child abuse or domestic violence) where one person is threatened by another.
• When there are issues affecting society as a whole (such as human rights issues).
• When the parties wish to establish an authoritative legal precedent.

 

 

SOME OBJECTIONS TO MEDIATION AND APPROPRIATE RESPONSES

 

1. “We aren’t interested in compromising.  Suggesting mediation is a sign of

       weakness.”

• Parties negotiate all the time over settlement proposals; mediation employs an expert facilitator of settlement discussions much the same way each party hires an expert on the factual issues—clients often want and need a resolution.
• Mediation is about developing viable options, not giving up something.
• Mediation is a form of facilitated negotiation; mediation is appropriate anytime one might consider a negotiated agreement.
  2. “We’ve already tried to resolve this ourselves…mediation would be a waste of ”
• A mediator can “reframe” interests, concerns and positions which frequently leads to shifts in negotiation strategy that can result in settlement.
• Mediators are “agents of reality” and people often need an independent person to hear their side of the story even if that person does not have the power to decide the case—while mediation is not therapy, it can be therapeutic!

3. “What good is a non-binding process when we need a resolution?”

• Negotiations are always non-binding until there is an offer and acceptance; the vast majority of mediations result in binding agreements.
• A decision to reach agreement through mediation invariably produces greater satisfaction than an imposed decision; compliance with voluntary agreements is higher than with imposed judgments.

4.“We think the other side is being unreasonable or engaged in a ‘fishing expedition”                   

• If the other were reasonable, the conflict would already have been resolved.
• It is easy to maintain an unreasonable position in correspondence and pleadings; it is more difficult to sustain an unreasonable position during a detailed, face-to-face analysis of the case with the mediator.
• You can leave if you feel they are negotiating with bad faith; and because the process is voluntary, you do not have to produce anything at the mediation that you do not want to disclose.
• Mediators are sensitive to “fishing expeditions” and are skilled in facilitating the exchange of appropriate information to help the parties reach a resolution that satisfies collective interests.

5. “It’s too early to mediate.  We haven’t done enough discovery or research.”

• The parties only need sufficient information to reasonably assess risk and analyze options; if the mediation seems premature, you may raise this issue with the mediator who can often facilitate the exchange of documents during the process.
• Mediation allows the parties to explore their underlying interests, work on settlement options, and not debate positions.

6. “Why should we mediate when we can go to a hearing or trial?”

• You maintain control of the process and outcome, unlike at a trial or arbitration.
• Often the “winners” at a trial or arbitration are not satisfied, or feel that “politics” were an unwelcome part of the process.
• Even if your case doesn’t settle at the mediation, the issues will be streamlined for adjudication and you will better understand the entire case.

7. “Mediation sounds good, but we are concerned about the cost.”

• The cost of mediation is usually shared equally between the parties and often is the same as the cost of nominal factual/legal research or a deposition.
• Sometimes the other side may be willing to pay the full cost; everything is negotiable!

8. “We can’t afford to waste any time, let’s just proceed to hearing.”

• The mediation can be scheduled immediately…when are you available?
• Mediation will often take a single day…how long will the trial and preparation take?

9. “We have a secret that we don’t want the other side to know if we go to trial.”

• The process is confidential so you can keep your “secret”.
• Often a judiciously timed disclosure of a “secret” is the impetus for a proposal with terms that may surprise you.

10. “Mediation doesn’t work in a ‘zero sum game’.”

• Not true; experience shows that if a case is susceptible to a negotiated resolution determined by the parties (and not imposed by the court), then mediation is a viable option.
• Parties often find compelling reasons to settle that are not apparent on the surface; unstated interests govern most behaviors.

11. “We have an airtight case—there’s no way we will lose.”

• Have you given your client a guarantee? Why does the other side disagree?
• Often the “winner” doesn’t feel victorious given the rigors of the adversarial process.
• Mediation allows you to explore possible settlements and still maintain control.

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?”

• A public policy mediated agreement is more likely to be approved if all the interested parties are at the mediation, so bring all of the stakeholders (e.g. developer, neighborhood group, staff, government attorney, etc.) ¾ the approving body will be happy there is consensus and no political decision necessary.
• A skilled mediator will help the adverse parties explore the public policy considerations inherent in the project; a private agreement that does not protect the public’s interest is unlikely to be approved.

13. “Will mediation put me out of business?”

• Attorneys are present at the mediation to protect their client’s interests and participate in the negotiation.
• Clients report high satisfaction with the mediation process.
• You will garner a reputation for creative and prompt resolution of problems, which is why the client came to you in the first place.
• Greater client satisfaction translates into client loyalty.

References:

1. NIPC -Expanding Commercial Alternative Dispute Resolution (ADR) in Nigeria, Design Report, Operational Manual.

1. Ani Comfort Chinyere, “Mediation as a Tool for Resolving Commercial Disputes”. 4^th NCMG Summit, Lagos. November 2009.
2. LMDC Practice Direction on Mediation Procedure 2008.

4. The Lagos Multi-Door Courthouse (LMDC) Code of Conduct for Mediators, 2010.
5. Bryan D. Coleman, http://www.colemanmediation.com/Mechanics.htm. Last visited on 5/4/2010.
6. http://www.mediation.com.sg/mediation_faq.htm Last visited on 3/6/2010.

1. http://www.progressmediation.com/faqs/ Last visited on 3/6/2010.
2. http://canada.justice.gc.ca/eng/pi/dprs-sprd/ref/res/drrg-mrrc/04.html Last visited on 4/6/2010.
3. http://www.cohenandwolf.com/CM/CommercialLitigationPublications/Mediationcommercialdisp.

10. http://www.ladr.co.uk/advant.html Last visited on    4/6/2010.
11. http://www.abanet.org/publiced/courts/mediation_advantages.html. Last visited on

4/6/2010.