An Introduction to Mediation (Part 1 of a 7-Part Series)

Relationships are the bedrock of human society.  As humans, we cannot do without relationships.  Relationships are of a wide variety and include: buyer-seller, employer-employee, husband-wife, parent-child, professional-client, service provider-service receiver, importer-exporter, borrower-lender, and friend-friend.  These relationships can be simple or complex.  Whatever the case, they are undergirded mainly by the parties’ respective interests and needs, which include their expectations of gain, growth, happiness, or satisfaction otherwise howsoever, from those relationships.  The relationships are driven and sustained by formal and informal transactions, such as contracts, covenants, charters, MoUs.  All of these are designed to secure the achievement of said needs or the fulfilment of parties’ respective interests and expectations.

Problems arise from time to time when there is a conflict of interests or needs, or expectations are disappointed.  Consequently, disputes arise between the parties especially in their view of the most effective ways of resolving same.  There may not even have been a breach of the express terms of applicable contractual documents.  The common interest now becomes a desire or need to resolve this dispute or seek relief from the inconveniences thereby occasioned, and as quickly and as inexpensively as possible. To be fair, in most cases, there has usually been an attempt to discuss and settle amicably.  However, this initiative soon breaks down in the absence of a skilled facilitator or intervener.

When this happens, the parties often think their only and surest option for resolution is litigation; however, alternative options called Alternative Dispute Resolution (ADR) methods are available.  They include – but are not restricted to – negotiation, conciliation, arbitration, and mediation.  Parties’ choice would be driven by their objectives and how these are prioritized.  Do they want to sustain the relationship after settling, or do they just to exercise their right(s), obtain whatever remedy, compensation, or other vindication may be won, and terminate the relationship afterward?  Can their underlying interests be expressed without being judged or condemned? Not all available dispute resolution methods can satisfactorily answer these questions or meet said objectives.

Dispute-resolution

(Source:https://insidesmallbusiness.com.au/planning-management/small-businesses-to-get-fair-hearing-on-ato-disputes )

A research1 once involved asking plaintiffs about their satisfaction from a case involving litigation.  When asked what the plaintiffs desired from litigation, lawyers consentaneously and unanimously stated it was entirely money. But on the other hand, the plaintiffs wanted an admission of fault by the offender, explanation and apology. Their underlying interest was not money. These separate worlds had a significant impact on the case. Also, the adversarial nature of regular litigation (arbitration sometimes) leaves negative impact on the involved organization’s public image and relations.

Alternative Dispute Resolution (ADR) is an umbrella term which integrates semi-formal and informal resolution methods to facilitate an agreement between you and the other party without resorting to litigation. Arbitration and mediation are the most common ADR techniques. Arbitration is somewhat like litigation in that a third-party has the final say on a case, thus leaving the real choice between Mediation and Litigation/Arbitration.  Mediation has more to offer than merely being just an option.

Mediation involves a neutral third party (the Mediator) who assists with navigating negotiations between two or more disputing parties.  In Mediation, the parties in dispute have the final say.  Mediation mainly aims to help them find the most mutually beneficial solution to their disagreement.   At the forefront of mediation are the underlying interests, concerns, and rights of the parties, and this is what truly gives them the power to determine the result of the case. The negotiation process in the mediation is (should be) based on asking ‘What do you want?’ instead of ‘This is what you want or need.’  At the end, parties create a written agreement to document the terms on which they have settled their dispute.  This is called a Mediation Settlement Agreement (“MSA”).

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(Source: http://naylorandgeiselpc.com/mediation/1327251)

Mediation can be used to resolve various kinds of disputes including boundary disputes, probate disputes, tenant-landlord conflicts, complex oil & gas, power, and other energy disputes.  It can also be used to for conflicts in family law, and all types of contract disputes such as (but not restricted to) construction disputes, partnerships, employment disputes, and real estate contracts.  Mediation has several benefits, all of which will be discussed in detail in a future article. However, it is important to conclude, for now, that mediation cuts out much formality and technicality.  It achieves the end of settlement often in a matter of hours or days, unlike years in court or otherwise, and is cost effective. Mediation is not only applicable or useful after a dispute arises as it can also be diagnostically used to guide dialogue or negotiations prior to a dispute.

Reference:

  1. https://mediationchannel.com/2009/06/05/lawyers-are-from-mars-clients-from-venus-differing-perceptions-of-mediation-documented-in-new-book/

 

Thank you for reading. What are your experiences, views and thoughts on this issue?  Please share these with us, or let’s chat about same, in the comment section below.

Mediator Yemi

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