Attorneys in Mediation: Prospects and Challenges by Valentino Buoro

Barely a fortnight ago, the Attorney-Mediators Association in Nigeria organized a masterclass on Cross-Border Mediation. The masterclass which was also open to mediators who are not lawyers by profession, was an eye-opener and a peep into the future of alternative dispute resolution practice in Nigeria.

Perhaps not many readers of this piece know of the existence of the Attorney-Mediators Association. The association was registered earlier in the year to promote continuing professional development for lawyers who have fully bought into the ADR process and have trained as mediators.

Since coming on stream, the association has left no one in doubt as to its determination to raise the bar in the practice of mediation through the regular masterclasses it holds to hone the skills  of its members.

An interesting subject matter that was thrown up at the masterclass on Cross-Border Mediation was the concept and practice of co-mediation. Co-mediation is the process where two or more mediators acting together as a team are assigned to resolve a dispute. This process differs from the solo mediation practice that we are all so familiar with.  Co-mediation is considered in some advanced mediation jurisdictions when the dispute has to do with multi-party or complex cases, as well as cases requiring gender balance or some technical expertise.

There are many persons who engage in mediation without the knowledge that negotiation presents strategies that can sometimes be deployed to overreach the other party and perhaps the mediator. Tactics like the presence of a greater numbers of a party and his aides in the room, playing the good cop, bad cop and sometime distracting the attention of susceptible male opponents with delectable female participants thrown into the mix. Though this may be uncommon or not all in court-annexed mediation, it is nonetheless a feature to be conscious about when you are engaged in negotiations elsewhere.

The foregoing assertions could not have been better captured than the following observation published in the Dispute Resolution Reference Guide of Canada’s Department of Justice. Writing under the subhead Dealing With Difficult or Deceptive Conduct in negotiation, the department wrote: “At any point during negotiations, one party may decide to use a variety of tactics in order to obtain an advantage over another party. This behaviour can range from pressure tactics (attempting to force a party to accept specific terms), intimidation (implicit or explicit), deliberate ambiguity regarding the scope of the negotiating mandate to blatantly unethical behaviour (providing misleading or false information, lies, etc.)’’

With the likelihood of the above scenarios playing out in some mediation, it would appear that co-mediation provides a countermeasure or panacea to obtaining a fairer outcome than in one mediator sitting over the matter.  Co-mediation thus provides an extra set of eyes and ears to help resolve the dispute and also enable the participating mediators to organize the mediation process better.  Co-mediation may  also come in handy whenever the issues at stake are of a technical nature which the lead mediator is unfamiliar with. In some jurisdictions where only attorney mediators are assigned court-annexed mediation, the use of co-mediators become of importance as the attorney-mediator bridges his technical deficiency with the presence of a co-mediator with the relevant professional background.

Generally speaking, there are different types of co-mediation that can be set up. The variants include peer mediation, lead/assistant mediation and mentor/student mediation. In all of these variants, there may be need to subtly infuse gender sensitivity by appointing a mediator of the opposite sex to act as co-mediator. It is perhaps important to state that whether or not an issue is of complex nature, the cliché that two good heads are better than one sits well with co-mediation.  The type of co-mediator that parties or the first engaged mediator may wish to set up will be dependent on the nature of each case.

In multi-party cases with multiple issues, parties might want to consider peer mediation or co-equal mediation, where mediators of equal stature work together as a team. In such cases the mediators will themselves decide on how to manage the process jointly. This can be in the form of dividing work between them on the basis of expertise or compatibility or even in line with cultural disposition or other such considerations as gender.

Co-mediation also provides a veritable platform for training mediators or growing the skills of less experienced mediators. In this wise the lead mediator may take up the key aspects of the mediation while the assistant observes and or watch his back to pick up relevant cues which he would later discuss with his superior.

In mediation, a variety of issues are usually at play. While some of these may go unnoticed by the solo mediator without much impact on the outcome of the session, such issues get captured by an assistant mediator and may provide greater speed or better outcomes for such processes.

With the seriousness with which the Attorney-Mediations Association appears to be taking its training and retraining programs, there are strong indications that the body will be able to create some incentives for more lawyers to embrace the ADR process. The upside to lawyer participation in ADR far outweighs its downsides.