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<xTITLE>The Linctus of Choosing a Mediator</xTITLE>

The Linctus of Choosing a Mediator

by Chinwe Egbunike-Umegbolu
April 2019 Chinwe Egbunike-Umegbolu

Abstract

Mediation is now the toast of the day in America, Canada, Australia, the UK and many parts of the European Union. The developing economies of the world are now exploring this medium of dispute resolution. This development underpins the fact that dispute has through the years become an endemic part of human existence. The thrust is not how to eradicate dispute, but how to manage it.

In the west, it has mainly been done through litigation. But the fact that the number of disputes all over the world especially in the developed economies now far outstrip the facilities available to deal with these disputes; governments, NGOs, civil societies, are now calling for or using ADR to address this pressing problem.

This paper would seek to look at the definition of ADR, a brief history or its history, the acute need to decongest the courts and meet the aspirations of the public, what qualities potential disputant should look for in a mediator, the different types of mediation available and areas where mediation may not be appropriate. 

The conceptualisation of Key Terms and Concepts

The key word in this work that requires an explanation from the onset is the term ADR which is the acronym of Alternative dispute resolution. The central theory of this work is linctus of choosing a mediator. 

Introduction

According to Brooker, ADR is a process where a neutral third party facilitates the resolution of a dispute between two parties.[1] Mediation has a more recent history as one of some processes forming the Modern Alternative Dispute Resolution (ADR) Movement, which has swept, albeit at different tempos, across many countries and different legal systems from the middle 20th century to the present day.[2] Thus in various countries or jurisdiction, litigation has been the traditional means of settling disputes including national and international business transactions. But with time, it became obvious to all parties – including lawyers, judges, clients and experts, that a lot of problems were associated with litigation, particularly on the issues of being too slow, very expensive and not delivering justice.  Lending credence to the above is the case of Dyson v Leeds City Council[3], in which the overriding objective of the Civil Procedure Rules and the court's duty to manage cases was exemplified. A posteriori to the case mentioned above, the need to comply with Rule 1.4(2)(e)[4], which encourages the parties to use alternative dispute resolution procedure is an integral part of the court’s management powers. In  a more recent case of R (Cowl) v Plymouth City Council (2002) [5]it was established that litigation should be avoided in disputes between public authorities and members of authorities in any possible way, Lord Woolf stated “Particularly in the case of such disputes, both sides must by now be acutely  conscious of the contribution ADR could make to resolving disputes in a manner that both meet the needs of the parties, public and save time, expense and stress.”[6] In retrospect, which was some of the factors that have led ADR to be most sought after especially mediation. Black law’s dictionary defined mediation.“ as the act of a third person who interferes between two contending parties with a view to reconcile them or persuade them to adjust or settle their dispute.”[7]  

To elucidate the definition stated above, Brown and Marriot gave a clear definition of mediation “as a voluntary, non-binding and private resolution process in which a neutral person helps the parties to reach a negotiated settlement,”[8] Readey stated that this method of is often confused with arbitration, but then again there are substantial discrepancies.[9]  Arbitration is a form of adjudication by a third party. However, in mediation, the third party helps the parties reach a voluntary settlement. In arbitration, the arbitrator makes a decision; on the other, the mediator does not.[10] However, evaluative mediation or directive mediation is similar to arbitration; this will be extensively looked at in the latter stage of this work. Flowing from the above, it is a private means of settling a dispute where a neutral party from now on known as a mediator who has no interest at all, helps or assists disputing parties to discuss and work together to create mutually satisfactory terms of the agreement that will enable them to resolve their current dispute.  Thus, hiring a mediator is one of the fundamental steps of resolving the dispute expeditiously because making a mistake here could affect the desired outcome to settle. It is to be noted that once disputants have made a wise decision about the choice of their mediator what they must bear in mind as opposed to litigation is that the process is entirely voluntary. This means that parties can choose to disengage from the process at any point before a resolution is reached. It is of note that mediators are skilled professionals who are competent to deal with the ordinary requirement of their job. For instance, mediators are skilled in the rudiment of drafting an agreement if one is reached, the format to be followed, fees and all the other requirements to facilitate an agreement.

Snapshot of Mediation

Mediation falls under the umbrella of ADR, which embraces a different range of dispute resolution processes, which are non-binding and voluntary.[11] The practice of mediation is often viewed as a new process, but it has a long history in many civilisations and cultures. In fifth century B.C., the Confucian view about the settlement of disputes was that optimum resolution of a dispute was achieved by moral persuasion and agreement rather than sovereign coercion.[12] Theoretically, this view encouraged disputants to use mediation to reach agreements through reasonable and productive discussions with a third party instead of resorting to the adversarial process. This is achieved by the parties appointing a mediator who cannot make binding decisions for them but will rather facilitate their decision-making process in finding solutions to their conflict. Mediators are more concerned about fairness than legal rights.[13] The advantages of mediation apart from voluntariness provides a lot of privacy and shields the party’s issues from the public. Also, the informal process (where the parties control their decision) it’s often quicker, less costly and less adversarial than litigation. The advantages of mediation have now become so profound that legislation has in many instances made it obligatory to first explore the use of mediation before resorting to litigation.[14] The overwhelming success of mediation has been hailed in many cases, but it is an undeniable truth that there have been minor setbacks in certain quarters. However, mediation is not always appropriate and does not always produce an agreement. For example, Mr XZ that came for a mediation session with Mrs AY, on realising that he might not keep his words may decide to end the session before it reaches the final stage or both parties might decide to opt out because they feel that the decision reached was unreasonable especially cases on financial arrangements. Also, mediation has its limitations, and may not be suitable for mediators to be able to mediate on cases like domestic violence, custody of children and divorce. Hyman supported the above proposition by stating that it is not their role to decide who was right or who was wrong. That this role is for the juries, judges and arbitrators to decide.[15] By mediating on these limitations, they cannot be seen as neutral and unbiased because they will be imposing their views or ideas on the disputants. However, Mediation offers a means of managing conflict and disputes, which entail two typical styles used by the mediator outlined and discussed in a later article.

Please read part 2 here.



[1] Penny Brooker, Mediation Law: Journey through Institutionalism to Juridification (Routledge Taylor & Francis Group London and New York 2013) Pg1-2

[2] ibid

[3] Dyson v Leeds City Council CCRTF [1998]1490/B2

[4] The Civil Procedure Rules 1998 Rule 1.4 (2)(e)

[5] R (Cowl and Others) v Plymouth City Council [2001] EWCA Civ 1935, [2002]

[6] ibid

[8] Brown and Marriot, ADR Principles and Practice (2nd edition London: Sweet and Maxwell) p127

[9] James A. Readey, Alternative Dispute Resolution- A Trial Lawyer’s Primer, 53 Insurance. Counsel Journal. 308 (1986)

[10] ibid

[11] Penny Brooker, Mediation Law: Journey through Institutionalism to Juridification (Routledge,

 2013) 4.

[13] Zena Zumeta, Styles of Mediation: Facilitative, Evaluative and Transformative Mediation (2000) https://www.mediate.com/articles/zumeta.cfm>  accessed 9th January 2019.

[14] Halsey v Milton Keynes General NHS Trust [2004] 1WLR 3002.

[15] Jonathan Hyman, Swimming in the Deep End: Dealing with Justice in Mediation (2005) Cardozo Journal of Conflict Resolution 19.

Biography


Chinwe is currently a PhD student and part-time instructor who facilitates seminar groups in business law. She is a volunteer mentor at the Kingston University London, supporting undergraduate students. She is an experienced claims handler with a demonstrated history of working in the legal services and business industry. Chinwe is skilled in negotiation, mediation, arbitration, immigration law, business and commercial law. Strong finance professional with a Masters degree focused on Dispute Resolution. Her research work has been approved for presentation by the Athens Institute of Education and Research Law Conference, (Athens, Greece) in May 2019.



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