Do Mediators have capacity to do injustice?

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By Valentine Buoro

I have in recent times, listened to complaints about mediators whose bias purportedly influenced the outcome of mediation settlement agreements in ways the complainants feel unjust. In some other instances mediation traducers appear ready to swear to the fact that the judicial mediation process is nothing but a waste of precious time. In one such allegation fired at a mediation service provider, the author alleged strong hand tactics in billing, delays occasioned by adjournments and concluded that the mediation process was time wasting.

I do not doubt the fact that like every human endeavor there will be down sides to the emergent professional practice. In one of such experiences, an acquaintance told me how she was harassed through a telephone call from a community mediation institution to give up possession of her mini-flat accommodation as the landlord was in need of its use.

She said that though she had received the invitation to attend the mediation session, she was unable to honour the invite on that date because her employers had declined her request for permission. When therefore she received a call from the mediator she saw it as an opportunity to explain her circumstances and to say that she meant no disrespect to the process.

The mediator would however hear of no such explanations; rather she yelled at the top of her voice asking her when exactly she would be giving up possession of her apartment to the landlord. What my acquaintance wanted to know from me was if it was right for mediators to pass judgments without hearing from the other side?

In my respectful opinion, complaints about mediation bias is ordinarily unthinkable. Elementary knowledge of mediation already shows that the mediator is not a Judge and so is not in any position to impose his or her feelings or decisions on any party. All a mediator is empowered to do is to seek to bring about an amicable resolution of a dispute through the efficient use of his skills.

As parties take advantage of these techniques, they must keep in mind that their interests and those of the mediator may not be identical. The mediator’s sole interest is to assist the parties achieve a settlement. Though this is also the interest of parties who come to mediation in good faith, there will always be a point of divergence as each party desires that the terms of settlement are more in their own favour. Where this does not occur, there is the likelihood of bitter parties laying such blames on the mediator. 

I am persuaded by my training and experience that a mediator’s capacity to do evil in his practice is very limited, if at all it exists. This is because no one can give what he or she does not possess. It is a common fact that the decision to resolve or not to resolve a dispute at mediation is that of the parties themselves to make. The mediator has no role or powers in this. Where therefore the terms of a settlement, howsoever they come about, are not favourable to any of the parties, it is the responsibility of the unhappy party to decline acceptance.

On the other hand, it is illogical, immoral and bad faith to gladly accept and sign terms of settlement at mediation and to turn around a few moments later to blame the mediator for bias.

The power to say no is one key element that every user of mediation services must hold as a shield. If you feel shortchanged, if the mediator is unnecessarily interruptive or you feel yourself being goaded to a certain pre-determined direction, call a halt to the mediation, ask for an adjournment of the proceedings or simply say No to the outcome of the entire procedure.

The aforementioned lapses or drawbacks, if provable, can only be the result of the absence of an instructed mediation advocate or party adviser. Those who still erroneously think they should go to mediation without a support in the person of advocate or a lay professional adviser should not complain if they feel overwhelmed by the process.

In concluding this discuss, it would appear that innocuous as this subject matter appears, it also touches on the quality control in mediator training and recruitment. This is particularly of importance in the areas of court-connected mediation services. In my opinion there must be identifiable pre-training standards skill set to be required of prospects before they are trained and certified as mediators. The popular 40hours of training should therefore be nothing but building upon existing professional skills and life experiences

Training and certifying people only on academic credentials would appear inadequate if I understand the dynamics of mediation. Parties must be able to trust and be confident in the ability of the mediator to assist them in the resolution of their dispute. Talk of gravitas; talk of the mediator’s experience which is often advised to be disclosed as part of the opening phase of mediation.

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