Authentic Mediation (Part 2)

The conclusion on the elements or characteristics that must be demonstrably present in Authentic Mediation:

3. Collaboration 

Authentic Mediation can be referred to as collaborated dispute resolution. That is the resolution of a dispute through cooperative collaborative efforts. Everybody collaborates: the parties; their representatives, advisors, and consultants; their witnesses; it is essentially a joint venture. 

In this joint venture, the business objective is the mutually satisfactory resolution of a conflict. Everybody has a part to play in it because if anyone is excluded, then that party will justifiably be unable or unwilling to take ownership of the decision going forward. That defeats the whole point of mediation. 

4. Confidentiality Uncompromised 

All participants are bound by obligations of confidentiality. Parties, Mediator, Representatives and Advisors, alike. Strictly no exception. I am not aware yet of any circumstances in which public hearing of a mediation can be compelled. 

5. Flexibility and Interest Based/Driven – Technicality Eschewed 

It is, or should be, virtually impossible to influence an outcome by technicalities. Authentic Mediation is interest based and focuses on the way forward. Consistent with their autonomy and power of resolution, parties determine timing, language, place, structure, and content of the pertinent proceedings. Authentic mediation allows the mediator and parties to take as much time as they need to determine the cause of their dispute and the best solution in their mutual interests, without the constraint of rules and technicalities. 

In arbitration, or in litigation, the rules of pleadings and of processes and procedures of the rules of evidence, don’t always make it totally impossible, but they often make it hard, to elicit the fundamental elements of the conflict. Thus, they are less nimble than mediation, i.e., when the latter is practiced in authenticity. In mediation, we are able to go beyond the letter of the agreement, into the spirit of the agreement, into the relevant factors or relationships, and relevant surrounding circumstances. Simply put, in authentic mediation, technical loopholes do not exist.  

6. Mediator: Advocate and Evangelist 

The Mediator must be committed to these principles and be ready at all times to help parties understand the purpose, the elements, and the objectives of authentic mediation. This, in turn, will help them in embracing these and to exploit mediation most optimally. 

Note that mediator constantly guides and educates, but never compels. He/she guides, but does not lead; encourages, but does not manipulate; enables the Parties to widen their vision and to see beyond where they are and helps them to see where they can be. 

7. A Cadre of Highly Qualified and Experienced Mediators 

In addition to all of the above, the Mediator must subscribe to the highest standards of professional ethics, conduct and integrity. Mediators must not just be peacemakers and settlers of quarrels. Those who demonstrate these virtues and, thus, epitomize the best ideals of the art at the highest levels, would be specially recognized, so they can be role models. 

8. Enter The Dispute Solutions Hub (TDSH) – www.thedshub.com

This is one of the aims of TDSH Roundtable. It aspires to be a stable of Mediators who represent the best ideals of the practice of authentic mediation. TDSH -The Dispute Solutions Hub – is committed to producing, to promoting, to championing, establishing, and catalyzing, the evolution of mediation into its proper destiny as the elite method, the best method of resolving disputes. 

TDSH – www.thedshub.com – will aim to build a core of authentic mediators, bringing to our societies and communities the full benefits of mediation, through the proper practice of the art, with creative thinking and transformative solutions. The long-term impact on the peace, and the general well-being, of the society is beyond imagination. Because if you have a society that has come to embrace and accept this authentic mediation, the whole culture of that society or community begins to change for the better. 

You will find that a society will evolve which is used to the fact that if I have a problem, it doesn’t have to cost me years – two, five, or even ten, if not more – to resolve. With less and less relationships breaking up or becoming acrimonious, you lay a good foundation for peace. You find a culture evolving where everybody realizes that the power and, therefore ultimately the responsibility, of resolution of my conflicts and disputes, lies on me. Applied in the workplace, the impact on employee satisfaction and resultant improvement in the work environment and productivity will be significant. I think it’s going to change the outlook of that society altogether in the longer. Dream? Why not? Let us all dream. 

POSTLUDE 

Will mediation ever totally replace litigation? Oh no! Oh no! We are living in a society that is founded on the rule of law. I believe that the proper place of litigation is to ensure that the law is properly observed, applied, interpreted, and enforced.  Its real role is not to resolve disputes as much as to preserve the law and to ensure that law is not violated. And there will be disputes or issues that will always rightly belong in a court of law because they are centered around the understanding, or the definition, or the proper interpretation and application of relevant principles of the law. 

But the truth is that 85% of disputes and conflicts between human beings do not turn on the law but turn on other factors other than – even if in addition to – the law. The law courts are not equipped to deal with that. Where do you deal with those?  In mediation! 

Mediator Yemi 

1 Comment

  1. I quite agree with you Yemi on all you have talked about. In an era where attempts are being made to bring into Mediation the principles of other forms of Alternative Dispute resolution it is very crucial that Mediation retains its authenticity.
    There is consideration now about bringing in the principle of Disclosure as you have in Arbitration into Mediation. For me this is not understanding the process and experience of Mediation as a dispute resolution mechanism.
    Mediation must not be dragged into the adversarial system of dispute resolution.
    Mediation is meant to be a dialogue where information will flow freely because Parties will see the need to volunteer facts that will help each other understand their grieviances and thus be able to resolve amicably with the encouragement of the Mediator.
    Mediation is not about who is right or wrong but about how the impasse can be resolved to move the Parties forward amicably. THIS PART NEEDS TO BE UNDERSTOOD AND APPRECIATED ABOUT THE MEDIATION PROCESS.
    Yemi can you please comment on this issue of Disclosure in Mediation.

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