Lawyers

THE ALLURE OF MEDIATION

  Skeptical, apprehensive, antagonistic or well informed etc - This describes the broad categorization of parties, I have seen walk in to mediation. Most times they are uncertain about how process works, while some people just refuse to choose the option of mediation as a means of dispute resolution since they are often not aware of its benefits. This piece aims to give a bird’s view of the mediation process

Mediation is one of the various Alternative dispute resolution options available. Other dispute resolution options include, Early Neutral evaluation, Negotiation, Conciliation, Arbitration, Facilitation, Med-Arb (This is a blend of both mediation & Arbitration) etc.

MEDIATION DEFINED

This is a confidential and voluntary process where an independent third party (a mediator), facilitates communication and negotiation between parties towards the goal of reaching a mutually acceptable Agreement (Terms of Settlement) between the parties that covers all or some elements of the dispute.

 It is advisable that any Agreement or settlement reached is written and signed by the parties to the dispute and the mediator. If parties are at the mediation with their attorneys, It is considered proper for their attorneys to sign as witness. Once it is signed, an Agreement (Terms of Settlement) becomes binding between the parties and enforceable against any defaulting party.

Mediation can either be ad-hoc (Mediation facilitated by private Mediation practitioners) or Institution supported. For instance, Mediations facilitated by the Citizens Mediation Centre of Lagos State is supported by the Lagos State Multi Door Court House (LMDC). Enforcement of Agreements from institution backed mediation is often seamless because of the in-built structures and processes.

 

PRE -MEDIATION PHASE

INTRODUCTION

It is expected that a mediator will welcome the parties to mediation and do his or her personal introductions and invite parties the parties to equally do same. What an experienced mediator aims to achieve during this very crucial phase is to establish their credibility, rapport and ability to facilitate the mediation process. The Mediator’s Neutrality as regards the outcome of the process should be emphasized here. This stage, sets the tone for the entire mediation process and it needs to be done professionally and in an amiable manner.

 

EXPLANATION OF THE PROCESS

The explanation of the mediation process is crucial. This is an opportunity to enable the parties have a bird’s view of what to expect in terms of the flow of the entire mediation process – from the introduction, documentation, opening statements (story telling), joint sessions, Caucus, negations, Agreement and Post settlement documentation & execution. This is a task for the mediator to communicate to the Parties with clarity. Parties often tend to have more trust in the Mediation process and the Mediator when they know what to expect

 

The mediator tells the parties about the standard ground rules for instance, that cells phones are not permitted (except in emergency situation), no verbal or physical assault etc. Parties can also be invited to contribute towards the ground rules, It is equally proper for the mediator to ask if parties have any personal special requirements that needs to be accommodated for instance medication etc.

 

 VITAL PRE- MEDIATION DOCUMENTATION

Signing of the Agreement to Mediate and the Confidentiality Agreement is most crucial. This Agreement to Mediate is what establishes the crucial element of ‘voluntariness’ and consent to have the mediator mediate between the parties. Without this Agreement to Mediate, the entire mediation process can become void in a formal setting. This is the fulcrum of the entire Mediation process since mediation is essentially a voluntary process. Even in a court or institution ordered mediation setting, it is key to establish this consent as any element of coercion can vitiate the mediation process.

 

 The Confidentiality Agreement is another crucial pre –mediation documentation that must be duly executed between the parties and the Mediator. This is actually one of the unique selling points of mediation. Arbitration generally, shares this confidentiality trait (there exists some exceptions); however, litigation generally does not have this attribute of confidentiality as most of its proceeding are in the public domain except in rare instances such as where a minor is involved in a family court setting.

 

In practice these two Agreements can be fused in to a single document and ideally should be signed after introductions when the phases and process of Mediation must have been explained to the parties. It is equally vital for the Mediator to confirm at this point that the correct parties are at Mediation. When parties are in a representative capacity, that the parties have a duly executed Power of Attorney or Letter of Authority. Look out for our next post "Phases of Mediation".

Uduak Udofia Skeptical, apprehensive, antagonistic or well informed etc - This describes the broad categorization of parties, I have seen walk in to mediation. Most times they are uncertain about how process works, while some people just refuse to choose the option of mediation as a means of dispute resolution since they are often not aware of its benefits. This piece aims to give a bird’s view of the mediation process

Mediation is one of the various Alternative dispute resolution options available. Other dispute resolution options include, Early Neutral evaluation, Negotiation, Conciliation, Arbitration, Facilitation, Med-Arb (This is a blend of both mediation & Arbitration) etc.

MEDIATION DEFINED

This is a confidential and voluntary process where an independent third party (a mediator), facilitates communication and negotiation between parties towards the goal of reaching a mutually acceptable Agreement (Terms of Settlement) between the parties that covers all or some elements of the dispute.

 It is advisable that any Agreement or settlement reached is written and signed by the parties to the dispute and the mediator. If parties are at the mediation with their attorneys, It is considered proper for their attorneys to sign as witness. Once it is signed, an Agreement (Terms of Settlement) becomes binding between the parties and enforceable against any defaulting party.

Mediation can either be ad-hoc (Mediation facilitated by private Mediation practitioners) or Institution supported. For instance, Mediations facilitated by the Citizens Mediation Centre of Lagos State is supported by the Lagos State Multi Door Court House (LMDC). Enforcement of Agreements from institution backed mediation is often seamless because of the in-built structures and processes.

 

PRE -MEDIATION PHASE

INTRODUCTION

It is expected that a mediator will welcome the parties to mediation and do his or her personal introductions and invite parties the parties to equally do same. What an experienced mediator aims to achieve during this very crucial phase is to establish their credibility, rapport and ability to facilitate the mediation process. The Mediator’s Neutrality as regards the outcome of the process should be emphasized here. This stage, sets the tone for the entire mediation process and it needs to be done professionally and in an amiable manner.

 

EXPLANATION OF THE PROCESS

The explanation of the mediation process is crucial. This is an opportunity to enable the parties have a bird’s view of what to expect in terms of the flow of the entire mediation process – from the introduction, documentation, opening statements (story telling), joint sessions, Caucus, negations, Agreement and Post settlement documentation & execution. This is a task for the mediator to communicate to the Parties with clarity. Parties often tend to have more trust in the Mediation process and the Mediator when they know what to expect

 

The mediator tells the parties about the standard ground rules for instance, that cells phones are not permitted (except in emergency situation), no verbal or physical assault etc. Parties can also be invited to contribute towards the ground rules, It is equally proper for the mediator to ask if parties have any personal special requirements that needs to be accommodated for instance medication etc.

 

 VITAL PRE- MEDIATION DOCUMENTATION

Signing of the Agreement to Mediate and the Confidentiality Agreement is most crucial. This Agreement to Mediate is what establishes the crucial element of ‘voluntariness’ and consent to have the mediator mediate between the parties. Without this Agreement to Mediate, the entire mediation process can become void in a formal setting. This is the fulcrum of the entire Mediation process since mediation is essentially a voluntary process. Even in a court or institution ordered mediation setting, it is key to establish this consent as any element of coercion can vitiate the mediation process.

 

 The Confidentiality Agreement is another crucial pre –mediation documentation that must be duly executed between the parties and the Mediator. This is actually one of the unique selling points of mediation. Arbitration generally, shares this confidentiality trait (there exists some exceptions); however, litigation generally does not have this attribute of confidentiality as most of its proceeding are in the public domain except in rare instances such as where a minor is involved in a family court setting.

 

In practice these two Agreements can be fused in to a single document and ideally should be signed after introductions when the phases and process of Mediation must have been explained to the parties. It is equally vital for the Mediator to confirm at this point that the correct parties are at Mediation. When parties are in a representative capacity, that the parties have a duly executed Power of Attorney or Letter of Authority. Look out for our next post "Phases of Mediation".