Mediation: Panacea or Mirage?

Mediation is envisaged as an effective way to increase co-operation between opposing parties and reduce the pressure on our court systems; it is not regarded “as a poorer alternative to judicial proceedings”. If we focus on the underlying principle of an ideal mediation law, we see that attempts have been made to formulate something which will help to end disputes.

• With minimum distress to the parties
• With questions dealt with in a manner designed to promote as good continuing relationship between the parties and
• Without cost being unreasonably incurred in connection with the procedures to be followed in bringing the dispute to an end.

Mediation to many is the answer to all these and more. The active engagement in the process gives rise to satisfaction and greater chances that any agreement will be spontaneously complied with. Besides, under the party’s control, the process is presumed to be cheaper, quicker and less adversarial. However, it is noteworthy that mediation is not necessarily a simple pre-determined single process. Indeed, to push it forward, mediators may implement a wide variety of techniques. Notably, the oft-repeated approaches are three and referred to as facilitative, evaluative and transformative respectively.

In facilitative mediation, a mediator helps parties in settling their dispute and facilitates a discussion between them. In evaluative mediation, a mediator expresses his views and gives an opinion on the subject matter. Finally, transformative mediation is based on the “empowerment” of each of the parties to the extent that this is possible, and the “recognition” by each of the parties of the other party’s needs, interests, values and points of view.

As Lord Gill rightly emphasized in his review of the Civil Justice system in Scotland, Mediation could provide parties with more potential outcomes and more importantly, the desired outcome.

While the legal route to dispute resolution is time-consuming, rigid and irreversible, mediation has none of these drawbacks and some additional advantages that attempt to “buttress rather than to undermine the stability of relationships” with unwanted bitterness.

Many scholars feel that mediation’s flexibility, informality and consensual nature open up the full dimension of the problem facing the parties. It decreases the likelihood of a hostile outcome by de-escalating the conflict and helps the judiciary to achieve its core aims: to support the delivery of the best possible outcomes for parties who come into contact with mediation, with a particular focus on reducing delay.

In short, it represents private, co-operative decision – making by responsible equals concerned to promote the welfare of all. Since there is no legal obligation to adhere to rules of evidence and the like, the parties may express their concerns in a more open manner and arrive at results that are much more closely tailored to their specific needs.

The counter – arguments hold that mediation is a “dangerously idealized” process which hinders the organic development of law and leads to coerced settlements taking advantage of the vulnerability of the weaker party. Some believe an agreement to mediate, falls foul of the law at the very outset, since effectively, it is an “agreement to agree”, something considered unenforceable under the laws of contract. The point they miss, however, is that mediation does not oblige parties to continue with the exercise or to unwillingly accept a discriminatory settlement.

Probably, this also explains the rising trend of lawyer – assisted mediation where both parties are accompanied by an attorney during the process of mediation especially in cases where complex questions of finance or law are involved, so that they can receive immediate personalized legal advice and representation without losing out on the informality and flexibility of mediation.

By this amalgamation of mediation and legal advice, the parties feel they can assert their rights to self – determination and make informed decisions about their interests.

In order for mediation proceedings to be successful, it is crucial to ensure that mediation retains its fundamental characteristic of a “peace-seeking, transformative, conflict resolving and human problem solving” process, but at the same time, care should be taken that it is required and/or promoted when it is appropriate to the circumstances of the dispute.

This delicate balance is well established in the EU Mediation Directive which explicitly states that:

“Member states shall encourage, by any means which they consider appropriate, the development of, and adherence to, voluntary codes of conduct by mediators and organizations providing mediation services, as well as other effective quality control mechanisms concerning the provision of mediation services”.

The UK Family Procedure Rules (FPR) 2010, also adopts the same approach and requires the courts to examine whether the ADR process is more appropriate than the use of judicial processes. It requires the courts to consider whether

• Dispute resolution is appropriate in the given context
• There has been fair and proper information given in regard to the ADR process and
• The parties agree

Court procedures and mediation can be equally successful (or unsuccessful) in their outcome, as the result is entirely dependent on how the parties deal with the matter. Mediation can work in harmony with the judicial system, the one complementing and supporting the other.

Jackton Olachi, MCIArb, is a practising Arbitrator and Mediator in Nairobi, Kenya.