Whenever a third-party acts to effect an agreement or reconciliation between other parties, the process would rightly be called mediation. In International Law, when one power uses its good offices to get a peaceful settlement between disputing nations or powers, this also is mediation. Indeed, this generic use of the word would also apply when a person seeks to settle a quarrel between other persons – friends, business partners, couples, even total strangers to the mediator.
However, when it comes to the practice of mediation as a formal profession or vocation, certain qualities must be present, acknowledged, and upheld. These qualities, when present, make for what I venture to describe as “Authentic Mediation.” Perhaps, one might have called it “Formal Mediation.” Only that some of the earlier instances described can also be formal. Hence, the coinage of “Authentic Mediation.”
If the practice of Mediation is to be fully professionalized, then there must be a way of recognizing the authentic art. It will also be more conveniently regulated. The standards will be empirical. It will be distinct from other processes, even when they may share one or two qualities in common. The aim is to ensure that, regardless of such common qualities, authentic mediation always will be clearly distinguished.
This idea is not entirely unique. For example, the Singapore Convention already provides the elements that must be satisfied for a Mediation Settlement Agreement (“MSA”) to be enforceable cross-border. That is to say, certain qualities must be present, and certain conditions must be met, before an MSA will be accepted as suitable for Cross-Border enforcement. So, this thought of establishing an “Authentic Mediation” is not altogether new. It is however essential.
What are these elements or characteristics that must be demonstrably present in Authentic Mediation?
1. It must be voluntary
It must be totally voluntary on the part of the parties, on the part of the Mediator, on the part of parties’ representatives and/or advisors, and on the part of anybody who is involved in it at all. No one should be doing anything by compulsion. Incentives to encourage embracing it must be balanced so as not to be punitive, coercive, or manipulative. Even the written agreement must warrant parties voluntary non-coerced agreement to submit to mediation. Thereafter, of course, the agreement becomes binding and enforceable. This is the only slight remit in the concept of total voluntariness. But then, parties freely entered into and executed the agreement. To that extent, then, it still remains voluntary.
2. Autonomy of the Parties – The power of resolution must reside, exclusively and without compromise, in the Parties in dispute.
They own the conflict. They should also own, and must be responsible for, the solution. What is the role of the mediator? The mediator is to serve as a pointer, a guide, a referee, an umpire. The mediator ensures that all the rules are strictly observed and enforced. It is more like if you’re going on a journey to a place you don’t know, and you hire maybe a local guide who leads you to the place — that is the role of the mediator. She/he is a guide; she/he is a facilitator.
However, it should be noted that the mediator has the authority to run the meeting and enforce rules. He or she may be neutral, viz a viz the parties and their dispute. But, regarding the process, authority resides in the mediator.
If the mediator must provide or propose a settlement, it strictly ceases to be Authentic Mediation. It then may more rightly be a Conciliation. If the mediation is to remain authentic, then at no time must parties abdicate or delegate (or have delegated or abdicated) this power of resolution to any third party, mediator inclusive. In every other kind of resolution, that power to resolve or decide, in reality, either has been abdicated or has been delegated; whether to the counsel representing the parties, or to the arbitrator in the case of arbitration; or to a judge in the case of litigation.
Such delegation or abdication saves the parties from taking responsibility. It allows them to blame the system or the institution or its officers. Convenient! Indeed, subconsciously, it is really what makes litigation or arbitration attractive, among other reasons, to parties. It allows them to hide away under the cover of someone else taking the responsibility that should really be theirs. And so, it may please the court, as counsel customarily concede, but it rarely pleases them or their clients.
Note also that in authentic mediation, resolution of the dispute or conflict does not consider, nor is necessarily to be influenced by what the likely outcome would be in a litigation. Many mediators tend to fall into this trap under the guise of doing reality testing. This would be evaluative mediation, but it will not be authentic mediation.
Resolution of disputes and conflicts under the Traditional African systems, admittedly have elements of mediation – e.g., inter alia, interest driven rather than solely or mainly right/wrong driven. However, so long as the King, the elders, the family, etc. are the ones who take a decision or impose a solution. Thus, this stops short of Authentic Mediation. Indeed, they would be better described as traditional or customary law arbitration or, at best, conciliation.
To be continued…
Meanwhile, please share your views and thoughts on this issue with us, or let us chat about same, in the comment section below. Make sure also that you subscribe so that you do not miss developments as we advance this conversation over the next few weeks.
Quite enlightening and full of information. If the mediator is to refrain from making suggestions, how is the best way to overcome an impasse? Several times parties are not shifting from positions. What should the mediator do?
Keep probing – open-ended questions which encourage/force the party to think further. The questions may also be designed to force them to test the reality of their position and often helps to reveal the futility, weakness or non-desirability of own position. Once the Mediator suggests a resolution, the Parties no longer own the outcome. It is often hard to resist the temptation to suggest as it can be a shortcut; ho9wever, it defeats an ideal of authentic mediation.
Patience! Probe deeper to elicit the basis of the impasse. In I’d dare say 90% of cases, with patience and persistence, this can be achieved. Yes, gritty resilience is a part of the mediator’s toolkit.