What does Mediation Entail?
Mediation is an alternative dispute resolution (ADR) process available to parties. Mediation is essentially a negotiation facilitated by a neutral third party. Unlike arbitration, which is a process of ADR somewhat similar to trial, mediation doesn’t involve decision making by the neutral third party.
What is Mediation?
Mediation is a form of ADR which results in negotiated settlement of a dispute, with parties taking active control of their dispute and how it is resolved.
It involves an independent or neutral third party who assists both sides come to an agreement.
Mediators are simply responsible for developing effective communications and building consensus between parties. The focus of a mediation process is to reach a common sense settlement agreeable to both parties in a case.
Mediation can be used in all forms of disputes such as commercial, contractual, family, labour amongst others.
How does Mediation Commence?
The ADR process of mediation is usually a voluntary process, but at times, statutes, rules, or court orders may require that the parties compulsorily participate in the mediation process.
Mediation procedures can also be compelled by legislation, the courts, or contractual terms.
Who can Mediate?
Virtually all professionals versed in their skills can be mediators in as far as the said mediator possesses the right attribute such as being tolerant, affectionate, anticipatory, calculated, clear-thinking, trustworthy amongst others.
The most important thing is that the mediator must learn the parties’ needs before attempting to craft a solution.
The mediator is to assess the whole dispute without bias and thereby reach a consensus acceptable to disputing parties.
After Mediation, What Next?
The decision reached after the Mediation Process is called an ‘Agreement’.
This ‘Agreement’ is considered as an enforceable contract.
In some court-ordered mediation, the Agreement becomes a court judgment. If an agreement is not reached, however, the parties may decide to pursue their claims in other forums.
Dispute resolution is an alternative means of settling disputes by parties without recourse to the traditional means of doing same through the courts or by litigation. According to Black’s Law Dictionary 8th edition, dispute resolution is defined as a procedure for settling a dispute by means other than litigation, such as arbitration or mediation.
On the other hand, economic growth is a positive change in the level of production of goods and services by a country over a period of time. It is conventionally measured as the percentage rate of increase in gross domestic product (GDP) usually in per capita terms. It is an increase in a country’s productive capacity as measured by comparing gross national product (GNP). Economic growth is usually brought about by innovations in technology, increase in capital stock, level of literacy and other external forces.
Types of dispute resolution
There are several mechanisms of dispute resolution which is also known as Alternative Dispute Resolution (ADR). They are arbitration, mediation, conciliation, negotiation, valuation, mini-trial, certification, med-arb, arb-med, rent a judge etc. The common and most attractive features of these alternative dispute mechanisms are that they are faster, cost effective and parties-driven compared to our traditional court system. For the purpose of this work I shall briefly discuss four common and frequently used types of alternative dispute resolution mechanisms.
Arbitration is the reference of a dispute or difference between two or more parties for determination, after hearing both sides in a judicial manner, by a person or persons appointed by the parties other than court of competent jurisdiction. Arbitration therefore is a process by which parties to a dispute have their dispute settled in arbitration by a sole or multiple arbitrators appointed by them whose decision called award are final and binding on the parties. Arbitration in Nigeria is regulated by Arbitration and
Conciliation Act (2004).
Arbitration can be mandatory or consensual. In AFRICAN DEVELOPMENT INSURANCE it was held that:
“Arbitration properly so called arises either out of an agreement between the parties thereto or out of the terms of an Act of parliament or some other instrument of statutory force”.
Arbitration is mandatory when a law or an Act stipulates that a particular issue or matter should firstly be heard by arbitration. An example of mandatory arbitration is the Trade dispute Act 2004, whereby industrial disputes are required to be referred in the first instance to the Industrial Arbitration Panel (IAP) before the National Industrial Court (NIC) may be seized of jurisdiction.
Consensual arbitration arises where the parties voluntarily refer themselves to arbitration or include in their contract document an arbitration clause.
This is an alternative dispute mechanism process whereby the parties to a dispute agree to appoint a neutral third party who facilitates a dialogue in a multi-stage process to help the parties reach a mutually satisfactory agreement.
H. Brown and A. Marriott described mediation as follows:
“Mediation is a facilitative process in which disputing parties engage the assistance of an impartial third party, the mediator who helps them to try to arrive to an agreed resolution of their dispute. The mediator has no authority to make any decision that is binding on them, but uses certain procedures, techniques and skills to help them to negotiate an agreed resolution of their dispute without adjudication”.
Gaius Ezejiofor succinctly described the process and role of a mediator in the following manner;
“A mediator is a person who is trusted and accepted by both parties to a dispute. His role is to assist the parties to reach an agreed settlement of the dispute. The procedure he adopts to achieve this is to meet each party privately so as to understand that party’s own side of the story. Thereafter he tries to bring the parties together so that may themselves work out a compromised solution to the dispute. He does not by himself suggest a solution to the parties and cannot compel them to reach a settlement”.
This is also an alternative dispute mechanism process by which a neutral third party called the conciliator is used by the parties to settle their dispute in mutually agreed terms. The conciliator does not give a decision but induces the parties to reach a settlement. The conciliator meets privately with the parties in a bid to discover the bottom line or the point beyond which the party is not prepared to go. He carefully considers each party’s evidence and submissions against the rebuttal thereof by the other party. Against the background of all these, the conciliator draws up and proposes the terms of settlement which represents in his own perception a fair comprise of the dispute.
Conciliation is also regulated in Nigeria by the Arbitration and Conciliation Act 2004.
This is another form of dispute resolution process by which the parties settle their dispute within themselves with recourse to or help of a third party. It involves the conflicting parties discussing matters between themselves in a bi-polar relationship. Even if facilitators are present communication is essentially between the conflicting parties.
The essential feature of negotiation is bargaining power. It may end up in a win-win solution or win-lose solution depending on how it is structured. In a win-lose situation, the winner is mostly the person that has a stronger bargaining power. This mostly leaves the losing party unsatisfied.
A simple process of negotiation starts with the preparation for negotiation which involves the documentation, arranging for venue and time of the negotiation etc. the second stage is discussion by the parties on the subject matter. The third stage is that each party proposes solution or makes an offer to the other party. The fourth stage is that the parties bargain on the offers or proposals made by themselves. The fifth and final stage is that they agree on not agree.
In negotiation, facilitators may be there to facilitate the negotiation, organize the event in terms of venue, time and even documentation. However, they are not allowed to participate in the discussion, bargaining and decision making.
Economic advantages of ADR
These alternative dispute resolution mechanisms have made lots of inputs toward the Nigerian economic growth. Due to the several disadvantages inherent in settling commercial disputes through the regular courts as compared with alternative dispute resolution (ADR), there is currently a geometric increase in the use of ADR mechanisms in resolving some of these commercial disputes.
The advantages of ADR compared to the use of litigation include;
- It is cost effective
- It is less cumbersome
- It is faster
- It mostly ends up in win-win solution
- Confidentiality is maintained
- It promotes relationship of the parties
- It preserves business relationship
- It allows the parties to choose a neutral and acceptable place or jurisdiction for determination of their dispute in international transactions.
- It creates confidence to a foreign party to a dispute since the seat of arbitration or jurisdiction will not be the jurisdiction of the opponent who may have an upper hand in his own jurisdiction or where the foreign party may not be conversant with the local laws of that country.