By Roseline Obiageli Nwosu (Mrs.) BL, FCIArb (UK) FICMC, CEDR (UK) Accredited Mediator
A paper presented at the monthly meeting of the Institute Of Chartered Mediators And Conciliators (ICMC) Abuja Branch on 18th July 2019.
Mediation process is an informal and flexible Dispute resolution process. It is conducted confidentially and is not binding unless and until an agreement is reached and signed by the parties who are both in control of the decision to settle and the terms of the settlement.
The Mediation Process can be designed or re-designed to meet the needs and circumstances of the parties.
The benefits of Mediation process are that it provides a platform for each party to say what he/she feels, it restores communication and gives the parties control over their own dispute.
The Mediator is a neutral third party who manages the process, builds trust and confidence, facilitates communication and helps parties to develop creative options for settlement.
The Mediator is expected to conduct Mediation in a manner that promotes diligence, timeliness, safety, presence of the appropriate parties, procedural fairness, competence and mutual respect amongst participants.
The Mediator as the process facilitator maintains firm management and control over the proceedings and creates an environment conducive to participation and communication by the parties including giving them a choice.
It is the Mediators duty to provide a structure for discussion of issues which allows the parties to perceive all of the pieces of their disputes and to construct workable resolutions.
Phases Of Mediation
•The Preparation Phase
•The Opening Phase
•The Exploration Phase
•The Negotiation Phase
•The Concluding Phase of Mediation
The Preparation Phase
The Mediator after his appointment initiates the process by communicating with the Attorneys of the parties on the phone and sometimes with the parties.
They discuss the Mediation process in general, what the parties expect, whether they had previous experience in Mediation and sign the Mediation agreement. This agreement contains the terms , costs and payment terms, provisions on confidentiality, provision on authority i.e. who will attend and who will speak on behalf of the parties.
A pre -mediation meeting between Mediator, the parties and their Attorneys or Advisers to exchange written summaries and supporting documents, agree on a tentative date, venue, timetable for the mediation and refreshments will be held. Sometimes, this will be done through communication on the phone.
This stage presents the Mediator a good opportunity to build a rapport with the parties and it is very important for the Mediator to have a confident and re-assuring manner that will make the parties feel that mediation will be a worth while exercise. At the end of this phase, the parties should be able to understand the process.
Adequate preparation makes the process smooth and speeds up the journey to settlement.
The Opening Phase
The Mediator arrives the venue on time and ensures that all arrangements are in place. Mediator meets and greets the parties as they arrive and makes sure that they are comfortably seated in the waiting rooms.
The Mediator starts the process with the First Joint Session and invites the Parties into the Mediation Conference room. He gets them seated comfortably and seats in between them. Mediator introduces self and all the parties.
Next, the Mediator makes an opening statement which must be clear and concise and which has 4 main purposes viz: sets the tone for the Mediation, establishes the Mediators impartiality, credentials and role, outlines the process of Mediation and the ground rules for discussion. At the end, the Mediator will ask if the parties have any questions.
If properly presented, the Mediator’s opening statement helps to dispel distrust, increases the comfort level of parties by giving them the confidence that Mediator possesses the skill to help them effectively thereby promoting an atmosphere of co-operation.
The Mediator then calls on the parties usually starting with the complainant to make their opening statements i.e. give a complete narrative description of the dispute as they see it in turn.
The Mediator then listens actively and does not interrupt them but could ask clarifying questions to understand the issues.
If the parties are too emotional, this part may be cut short, otherwise the Mediator may continue with the joint session to enable parties build rapport until the discussion becomes destructive.
The Exploration Phase
This is the stage of identification and characterization of the issues in a dispute and determination of the parties needs and priorities as opposed to their wants and rights in a structured manner by the Mediator. Issues here mean: any element of the Party’s dispute, expressing Party’s interests and needs and that is capable of being addressed in Mediation.
It is mostly done in caucuses/private meetings where parties will speak freely and more openly and be willing to tell the Mediator what really matters to them. They will also provide information that they may not want the other party to hear.
The Mediator should continue to build trust by re-enforcing the confidentiality principle and by reassuring each disputant through use of appropriate language and conduct that is safe to trust him.
The Mediator characterizes the issues, structures the discussion on issues and identifies settlement strategies. The Mediator is required to be patient and persistent and to explore fully with curiosity and courage the interests and concerns of the disputants through shuttle diplomacy.
The Mediator uses active listening technique, asks open ended questions and allows each disputant opportunity to air his views so that he will have the confidence that he has been heard. The Mediator, as much as possible, spends equal amount of time with each disputant and clarifies, confirms and summarizes the interests and needs of each disputant before moving to the next stage.
The Negotiation Phase
This phase starts when parties are ready to negotiate settlement terms. It is the movement of parties to agreements. It can be done in both private and joint meetings using principled negotiation.
It is very important for the Mediator to remind himself that both the problem and the solution belong to the parties and that he cannot impose any solution on them.
The Mediator identifies differences between parties priorities and concerns and using his negotiating skills and some techniques try to facilitate flexibility and movement from their entrenched positions.
The Mediator shuttles back and forth from one party to the other as a messenger exploring the issues with the parties to possibly find solutions to elements of the dispute in a carefully structured manner.
The Mediator is an active deal maker who significantly influences the negotiation. Through working creatively and use of different strategies, he helps the parties to identify potential trade offs and generate options for settlement. When there is a deadlock, as happens often in Mediation, the Mediator emphasizes cost of not settling, uses some strategies and applies persuasive pressure to break the impasse.
The Mediator does reality testing for disputants. He helps disputants using “what if” expression to look for win -win possibilities and expands the settlement pie to find a settlement that will satisfy all sides and then brings them together in a joint meeting to finalize the settlement.
The Concluding Phase
The goal of Mediation is to achieve a negotiated agreement but not at all cost. A mediation may end in 3 different ways: a settlement is reached, no settlement and an adjournment of the proceedings to reconvene at another time.
Where a settlement is reached, it should meet three requirements viz: It should satisfy all parties, it should deal with all the issues in dispute unless the parties have agreed to isolate some issues, and it must be viable and workable. The best settlement is that of the parties and not that of the Mediator.
The settlement should be put in a written agreement by the Lawyers to the parties, checked by the Mediator and will be signed by both parties after confirmation that it adequately reflects the terms of their settlement.
The settlement agreement, now a contract, can be enforced in Court. It can also be filed and enforced in Court as consent judgement if it is a Court ordered Mediation.
Where however no settlement is achieved, the Mediator will advise parties to try any other ADR Process, go to an agency or to Court as they desire to sort out their dispute. The Mediation process thereafter comes to an end.
In conclusion, every Mediation is unique. The Mediators style, skill and experience will ensure the success of the Mediation process. The important thing is that at the end of the process, the result should be what the parties have willingly agreed to do. Where however no settlement is achieved, the Mediator will advise parties to try any other ADR Process, go to an agency or to Court as they desire to sort out their dispute. The Mediation process thereafter comes to an end.