Believe me, I have bosses, just as you do. A boss is defined as someone who is in charge of a worker, group or organisation. To me, the boss is someone you look up to for instructions, for validation of your work and of course a reward either by way of a salary, promotion or a letter of commendation. It might as well be a repeat contract!
In the training offered to lawyers and non-lawyers who seek a career in mediation advocacy, the point is well made that a boss may well constitute that stumbling block to your active practice as a mediation advocate or advisor. When you work in a law firm and report to a senior lawyer who is not only advanced in age but in legal practice, you might have a daunting task convincing your boss to try mediation. Truth is that he was not taught ADR in the Law School and has made so huge a success of his legal practice that convincing him to try this new process would be a herculean task.
For me, my bosses are largely laymen and corporate institutions who give me instructions as a legal practitioner. My loyalty and dependence on their evaluation of my services are almost at par with the salaried lawyer whom I earlier referred to. The one clear difference is that I carry out my assignments as an independent who still retains some measure of control in what I consider the most appropriate professional method to undertake given tasks.
What our bosses need to know today is that mediation is not a flat and abstract process. There are several types of mediation from which an instructing boss can make a choice. It is only in the facilitative method of mediation that the mediator may appear passive as he allows the parties to generate and make their own choices of how they want to resolve their dispute. Under the facilitative process, the mediator offers no opinions or suggestions of terms of settlement. All he or she does is to skilfully manage the process in a manner that the parties will themselves see that ‘Aha’ moment and resolve on their own terms. Aside facilitative mediation, a few vibrant models have since come into place that are worth giving a try by the boss.
The first of these is the evaluative model of mediation. Here, the mediator gets actively involved in the legal merits and arguments of the parties with a view to assisting them have a fair determination of their positions. Unlike the facilitative mediator, the evaluative mediator does not focus only on the underlying issues. He examines these together with legal issues which the parties throw up. Evaluative Mediators are usually experienced lawyers who have been converted to the concept of mediation and now actively work as Attorney-Mediators. Here in Nigeria, lawyers who practise as litigators and mediators function under the umbrella of the Incorporated Trustees of Attorney-Mediators Association (ATMA Nigeria). Though membership of the organisation is open to all lawyer-mediators, majority of its accredited members are not only signed up as mediators of the various multi-door courthouses in Nigeria, they still accept individual mediation briefs whenever parties reach out to them for ad hoc mediation. Anecdotal evidence suggests that many senior lawyers who resist mediation warmly accept the opportunity to appear before Attorney-Mediators, since they speak the language of law and can better understand where parties’ lawyers are coming from in their legal arguments.
Another area of mediation to explore are the hybrids of Med-Arb (Mediation /Arbitration) or the Arb-Med (Arbitration/Mediation). Under the Med-Arb process, parties begin the dispute resolution by first engaging in mediation. Where they are unable to resolve some parts or all of the issues involved, the mediator is empowered under their prior agreement to put on the hat of an arbitrator and impose a binding decision based on arbitration procedure. This process has however been criticized by persons who insist that there will be no way the mediator turned arbitrator will not be biased, having facilitated the mediation and made up his mind on who the difficult party was in the negotiation. The alternative procedure of Arb-Med appears to sit well with many who think this process is devoid of an opportunity for the bias of the facilitator of the process. In an Arb-Med scenario, the dispute resolution begins with the facilitator acting in the capacity of an arbitrator wherein he has powers to decide who is wrong or right in the dispute, having listened to parties’ submissions and arguments. However, after taking a decision based on his evaluation of evidence, he seals his award (decision) in an envelope before commencing the mediation process between parties. Where they fail to agree, the arbitrator turned mediator, is empowered to unseal the envelope and pronounce the verdict he had reached before the mediation began. These and many more are the variants of contemporary mediation for the boss to consider.