It is trite to say that dispute is a necessary inescapable evil of human relations. Man as a social animal is therefore highly likely to be faced by dispute or disputes in his relation with other persons.
When a dispute arise between two or more parties, it is expedient that the dispute be resolved to keep the wheels of life rolling. As a derivation from litigation, Alternative Dispute Resolution (ADR) is a non-litigant and non-adverserial process of resolving disputes.
Various mechanisms has been developed overtime to actualize the resolution of disputes in a non-adverserial means. Mediation is a mechanism of ADR that involves a voluntary process in which a third neutral party assists conflicting parties to a dispute, to resolve their dispute in a manner that births a win-win situation.
In order to achieve this, certain key factors characterizes a mediation process. They serve as building blocks to a ensure a properly structured mediation process. A mediation process usually involve a Mediator whom is the third neutral party, mediator-advocates that legally represents the parties to the dispute and most importantly, the parties to the dispute, the sheer importance of the involvement of the parties to the dispute would be consequently discussed.
A Mediation process has a life cycle of four phases, these four phases runs through the very start of the process to when the process ends, with the full involvement of the parties to the process.
The four phases are; The introduction, The story telling, The problem solving, The memorandum of understanding.
Note that this covers the mediation process in itself to the exclusion of pre-mediation process.
The introduction begins with the Mediator, the mediator is expected to introduce himself, he plays the role of a steering wheel as a guidance to the rest of the parties, by implication, disputing parties are expected to make her introduction in like manner after the mediator.
In order to give the process the flavor of informality as it should be, it is recommended that first names are adopted after introduction. In his introduction, he is expected to state his experience and qualification as a Mediator or certified expertise in the area of the subject matter of the dispute, for instance if it is a financial dispute and he is a financial analyst, it would be helpful to mention his expertise, as this is likely to boost the confidence of the parties in the mediation process.
Confidentiality is a key factor for a mediation process, it is infact not exclusive to just mediation but every alternative dispute resolution mechanism. It is the duty of the mediator at the very start of the mediation process so as to intimate the parties involved that none of the details of the process can be let out to an alien party. Its details, which includes secrets revealed or words of the parties during the process, can not be admitted as evidence against the party.
Its confidentiality is a key point outlined in a model pre-mediation agreement. A Mediator can therefore not be subpoenaed to produce documents of a mediation process, its implication is similar to that of a duty of a lawyer with regards to the Lawyer-Client privilege.
Confidentiality is paramount in retaining trust in the process, even information discreetly shared by one party to the dispute to the mediator or mediator-advocate is to not be disclosed as the confidentiality factor also covers this. It is therefore the role of the mediator-advocate to keep careful record of what can be shared and when it should be shared, such information should be carefully and selectively disclosed.
This factor further boost the disputing parties trust in the process.
After the familiarization of parties with names and the structure of the mediation process, the mediator is expected to encourage the parties to set ground rules for the process, i.e time constraint for the session, how they prefer to be addressed, how much break would be needed in between the process, what refreshment they would prefer, emotional elements, the extent of involvement of their mediator-advocate in the process.
In instances where the parties are likely to be absent, the mediator-advocate represents their interest in the process, it is however advisable that the disputing parties are present for the process because, it is better heard from the horses mouth, also, parties are likely to express their grievances and expectations in person.
The mediator-advocate could set the scene by informing the other parties of the extent of flexibility, himself and his client are willing to stretch to. As a voluntary process, at any time before the memorandum of agreement is signed by the parties, either parties are of liberty to walk away from the process. The parties are allowed this option if they believe that the process is not working for them or attending to their needs. The Mediator could inform the parties of this option at the start of the process.
The knowledge of the fact that they are not in a tight corner would further assist the parties to relax and be more open. Either party to the dispute could be encouraged to make the first opening statement. The opening statement made by the mediator-advocate should be very strong, formative and informative. The counsel is expected to introduce and provide vital information of the client, the role of the counsel in the session is to deal with the technicalities and representing the client when dealing with facts.
The mediator-advocate further provides information in details as to the sequence of events that lead to the dispute, the better the presentation of facts leading to the dispute, the easier it is to pinpoint the crucial issues for determination.
In summarizing the problem, the mediator-advocate is expected to point out the strength of the case so as to represent the best interest of their client using influence and persuasion, to make achieving this easier, the mediator-advocate can infact draft out their interests into two categories, which are needs and wants.
In shafting out the issues for determination, legal positions and law should not be overused so as to not confuse the parties and also attend to their emotional needs. Complexities or intricate issues are to be explained to the clients by their counsel.
For the story telling stage, the Mediator can assist in setting the scene by asking opening questions, lead questions, close questions and probing questions, these questions are aimed and designed to encourage meaningful responses from both parties, when details are drawn out, it is easier to identify the crux of the problem which either party might not have been conscious of before the process began.
This information gathering stage pinpoint interest by extracting key information of the facts involved. Emotional intelligence and reality psychology could be employed to assist the parties correctly identify and tag their interests properly.
Active listening is a key factor in identifying the disputing parties driving force, emotional elements in important in ensuring that a good relationship is maintained by the parties even after the dispute has been resolved.
Non verbal communication should not be ignored also, certain factors as to how the parties react to issues during the process could provide a pointer of what is most sensitive to them, i.e attempting to blame the other party, an emotional meltdown, avoidance, acting defensive.
At any time during the Mediation process, either the Mediator or the mediator-advocate representing a party to the dispute could call for a caucus. A caucus is a private conversation between a Mediator and either party of the dispute themselves. The confidentiality clause covers this private conversation also and by such the Mediator is not permitted to disclose the detail of such private conversation with the other disputing party. Matters such as monetary constraint, concerns, intentions for the mediation process can be discussed with the Mediator with the highest degree of openness and honesty.
A cross caucus could also be employed, a conference or joint session could also be employed. Having properly identified and tagged the interests, concerns and needs of the parties to the dispute, the Mediator could suggest pointers towards resolving the dispute, the parties to the dispute however remains the captain and could apply negotiating skills to arrive at a compromise.
The mediator-advocate could provide a negotiation strategy after taking cognizance of the other party’s grievances and needs. It is important that both parties are open-minded, emphatic to advice, guidance, information and collaborative to provide creative options that would cover both the needs of the disputing parties, so as to achieve a win-win situation. It is important that both parties to the dispute bring to the table productive suggestions of how to amicably resolve the dispute.
In a situation where the disputing parties are emotionally blinded or are simply unable to arrive at a compromise because of communication blocks or confusion that could be easily identified when they keep talking about the same problem without making a headway or provide a workable solution to the dispute, the Mediator is to delve into the issue, intervene and break the deadlock. While at this, it is necessary that the Mediator exercise the best of neutrality, be devoid of any possible bias and not give attitudes that are likely to convince a party that the Mediator is swaying only in the favour of the other party as this would cause the other party to lose faith in the process.
Having resolved the dispute, a closing statement is just about as important as an opening statement, this is so because it is important that even after the dispute is resolved, a good relationship is maintained by the parties. An impactful closing statement could be delivered in a courteous and yet confident manner, it would be helpful to acknowledge the grounds that the other party had to shift to arrive at a resolution.
Also, in summarizing the progress made at the mediation process, acknowledge the inputs and contribution made by the other party and also the Mediator. The impact of this would facilitate an informal parting. Having achieved this, a memorandum of understanding can be documented, which can be legally enforced as a contract.
Conclusively, it is germane that disputing parties are aware of the benefits of employing Mediation to resolve disputes because it prioritize the interest of the disputing parties and encourage the likelihood of making it a choice of means of resolving their dispute. This challenge can however be further tackled if there is a well drafted legislation that wholly governs and covers Mediation as a means of resolving disputes. This would further demystify certain myths that are usually associated with Mediation.
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