Mediation should not be seen as being forcefully imposed on parties by the Rules of Court
By Joy Daphine Ndegemo
Mediation as a dispute resolution mechanism is not a new concept in traditional Ugandan and African society. It has been a customary mechanism where our elders mediated disputes using procedures acceptable to the local community and parties were encouraged to present their cases in a very simplistic manner, until the introduction of the modern adversarial justice system.
The introduction of mediation in the courts of judicature in 2013 (and specifically the commercial court division) was expected to help in swiftly settling cases and solving case backlog. Mediation is now available countrywide in the courts and not just the commercial court, where it started on pilot.
The option of using mediation in court is, however, said to be taken less seriously, with less preparation for mediation sessions being done compared with actual litigation. Parties are said to not have fully appreciated the benefits of mediation because the perpetrators for making it a compulsory part of litigation provided not much sensitisation on procedure. So, parties rely on their lawyers’ advice and in most cases, they will likely be advised not to settle and will report back in court, saying mediation failed, without any effort to make it work.
Sometimes, parties “game” the mediation process, too often using it as just another arena for manipulative, postured, or other disingenuous behaviours, and for ulterior purposes such as cheap discovery, to cause delay, to harass or impose expense burdens on an opponent, etc.
We also might acknowledge that sometimes parties fear that they will be diminished by a settlement, that a compromise agreement will feel like (or be perceived by others as) a failure, or an abandonment of principles, or a partial or oblique admission of fault. It is understandable that parties with these fears might want to place the responsibility or blame for agreeing to a proposed settlement on someone else.
Such parties sense (perhaps only pithily consciously) that they are surrendering to someone else a responsibility that only they should assume - and that knowledge reduces their self-regard even more. Competition appears to be a fundamental fact of our existence - a product of a survival instinct that may be as ineradicable as breathing. So, it is likely that the adversary system is a reflection, rather than the ultimate source, of drives that are in some sense intrinsic to the human condition.
Mediation should, however, not be seen as being forcefully imposed on parties by the Rules of Court, where parties attend out of procedural obligation and fear of paying costs for non-attendance. Warring parties should not be led to believe that this option is out of compulsion by court but should freely appreciate the benefits that come with it. As Jon Lang, a practising mediator, rightly argues, it is human nature to reject any form of compulsion. Otherwise, forcing reluctant parties to mediate, may well end up with a process characterised by stage-managed and doomed mediations.
What then is mediation, and what is the role of a mediator in ensuring a successful mediation, especially where parties are either ignorant of the process or just disinterested. I might add, what constitutes a successful mediation?
Mediation, as used in the legal context, has a set of characteristics that transfer very well into the intra-organisational context. The mediation process is private, voluntary, informal, and non-binding as the procedure does not allow the mediator to impose a settlement. Instead, the mediator, who is usually a neutral, works with the disputing parties to help them negotiate a satisfactory settlement. Mind you, settling does not necessarily mean winning; it is the ability to make peace with a situation in an agreeable manner, given the circumstances.
The role of a mediator is to help. That said, however, the real success or failure of a mediation is three-quarters of the time dependent on the attitude of parties. Disputants who focus on reducing negative emotions and willing to receive that help build trust with the mediator and are likely to settle, as opposed to searching for contention. The communication of respect acknowledges the other’s sense of dignity and generates positive sentiments. As a general proposition, the more confidence the parties have in the integrity of the process, the more confident they are likely to feel that the process:(1) has yielded important information about the parties’ circumstances, (2) has produced an analysis that is as reliable as possible, and (3) has accurately identified what terms of settlement might be available. If one comes out of obligation, then they will probably gain nothing because it is for the wrong reasons they are in that room. Also, coming with a rigid mindset and unwillingness to listen is wasting precious time for oneself and for the people that have volunteered to come and listen to you. That said,mediators can make a call to parties to always consult with their lawyers about trying mediation with the help of court before going through hard and expensive litigation in the same courts.
The biggest cause of conflict is miscommunication. We fight each other from the safe distance of our separate islands of ideology and identity and listen intently to echoes of ourselves. We take exaggerated and histrionic offence to whatever is said about us. We banish entire lines of thought and attempt to excommunicate all manner of people without giving them so much as a cursory hearing. Here, and perhaps elsewhere, something more fundamental has to happen for people to let go of their anger and pain.
Escalated conflict is, I contend, a form of confusion. When in a mediation session, different sides of the same story, or different stories of the same relationship or events are told. And nearly every time, each side’s emotions are completely plausible, and yet the two-people telling me their stories are sometimes so angry and hurt by each other that they cannot “see the confused human being” that they, in fact, both are.
When parties are hurt, they see each other primarily as the inflictors of that pain.Sometimes ask yourself if your anger makes you any happier, or your life more fulfilling or if it is healthy for you to stay so angry, or so bitter.
Mediation is about restoring relationships and bringing emotional reconciliation.It has the capacity to re-orient parties towards each other not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions to each other. More businesses opt for mediation because of the need to protect their business contacts, reputations and interests rather than sever them through exploring lengthy and embarrassing litigation.
Mediation is also useful internationally and domestically, court related or not, to build peace, to promote collaboration and dialogue, for reasons that include prevention, transformation, management or resolution of conflict. I have seen cases in court thrown out on a mere legal technicality (sometimes called a preliminary objection). This does not take away the resentment the parties have for each other it only accelerates anger, spite, bitterness, and needless to say, lots of drama and sometimes egos at play. Litigated emotions predict an unreconciled future.
Another perk of mediation is that the parties play the central roles because the principal energy that runs the process will come from the parties, not us. One such benefit, which can be highly valued by both lawyers and litigants, but which is not captured in any of our questions about “accomplishments”, is the feeling centred in the decision to proceed with the litigation.
A well-handled mediation teaches the parties a lot about how the two sides view the merits of the case and exposes, more reliably than any other mechanism, what the best terms are that could be achieved in a settlement agreement. A party who reliably knows her or his bottom line or best alternative before going forward with the litigation, and which line of reasoning supports her or his opponent’s position, is much more likely to feel well-grounded in a decision to litigate and much less likely to blame either her lawyer or the legal system for her fate.
Understanding why she feels constrained to proceed with the litigation, she also is less likely to resent and more likely to pay the bills her lawyer sends her.
One person may say, “But why would the parties use mediation, why would not they just deal with the conflict themselves? That is what I do, and I never needed a mediator.” In mediation, parties develop not only the outcomes, but also the process, and informed decision making requires the parties’ access to trusted and competent advice, including legal advice. Sometimes, they need their own advisors and sometimes, in addition to their own advisors, they develop joint fact-finding processes to access independent advice that could build their trust in the advice through a transparent process developed, managed and owned by all parties.
As noted earlier, mediation is usually more about understanding where the disagreement is and working on amicably resolving it so as to maintain relationships, than winning and losing. What else might we do to reduce the demoralisation that is likely to follow a mediation that yields no settlement? For starters, we can remind ourselves that, in most mediations, even when no settlement was achieved, the parties feel that the process delivered net value to them. The data our court collects about the mediations it sponsors, for example, indicate that, while about 60% of the cases settle through our mediations, some 80% of the parties and lawyers believe that overall, the benefits of being involved in the mediation process outweigh the costs.
In a nutshell, mediation could be useful for all sorts or reasons: in complex cases, with multiple parties, or when communication needs improvements, or when consensus is preferable over alternative routes that otherwise may involve authorities, when parties value their relationship and would like to protect it, when it is just less time and cost effective to settle, and so on.
Sometimes you need approval that you are right, or even if you are not right, you need someone to justify your wrongness. Would you rather have someone not only say that you are wrong but that you are so wrong that you have to pay the other party for the time wasted litigating this matter? Or would you rather understand why you are wrong and amicably agree that some sort of agreeable redress will be addressed, by the both of you?
Writer is a lawyer, researcher and mediator, currently living and working in Texas, USA.