A fortnight ago when we discussed the available styles of mediation, reference was made to the public perception of the facilitative style of mediation as being a rather passive process. It was stated that many newcomers to mediation struggle to understand the position that in mediation, disputants themselves resolve their matters without a decision being imposed on them by the mediator.
It has been argued in some other fora that it is this avowed self-determination and the confidentiality of the mediation process that makes it quite a difficult sell. By its nature and rules, mediation is strictly confidential. No one, except the direct parties to a conflict, are allowed at the mediation session. As part of the process, parties must first sign an agreement to mediate wherein the confidentiality clause is provided. They contract that neither the details of the process nor the decision(s) reached at the mediation will be divulged to any other person who was not present at the meeting.
In one Practice Direction of a Multi-Door Courthouse, it is explicitly stated under the confidentiality provision that “Every person involved in the mediation, including in particular, the mediator, the parties and their representatives and advisors, any independent experts and any other persons present during the meetings of the parties with the mediator, shall respect the confidentiality of the mediation and will keep confidential and not use (unless otherwise agreed by the parties and the mediator) for any collateral or ulterior purpose..’
The confidentiality terms would naturally mean that no mediator nor party to a mediation is ever availed of the reports of prior mediation in similar issues and reasons why they failed or succeeded. In a world where people need information in order to make informed decisions, the mediation prospect is literally left in the dark as to the possible outcomes of this mode of dispute resolution.
Difficult as it may appear, however, it is safe to argue that it is the very imperative of confidentially that gives mediation its potency. What this means is that in practice, the mediator and the parties in dispute, enter into the process with a ‘clean slate’ mind, not burdened by scenarios of previous settlements in similar cases. Negotiations and decisions reached by the parties will be instantaneous, original and devoid of any external influences or baggage. This is why it is said that no two mediations are ever the same.
It is also admonished that no one is ever in a position to criticize the outcome of any mediation. It is immaterial whether or not the decision reached by parties appear shallow or unreasonable to anyone else. What is important is whether or not the decision reached was the product of the negotiations of the parties and the terms agreeable to them on the day of mediation.
In recent times, a growing number of stakeholders have begun to ask the rhetorical question if current mediation practices align with the traditions of African mediation. As I write this, no one appears to have clearly defined what is meant by African mediation. Professional mediation as we know it today is universal in its foundations and ethics. A mediation cannot be classified as a mediation properly so called, if settlement agreements reached are not the outcome of facilitated negotiations reached by the parties themselves. Other key safeguards will include confidentiality and voluntariness
What appeared an interesting perspective to the rising discourse on African mediation came up recently on a weekly online mediation programme branded as FMA Mediation Hot Seat. In that programme, a participant shed light on what he considered African mediation. In his opinion pre-colonial mediation in Africa were not mediation in the sense we now know it. Although African kings and elders routinely intervened in disputes between their subjects and kinsmen to protect filial bonds and community cohesiveness, parties did not have the freedom to decide how they wanted their matters resolved. What came out of the encounters were agreeable decisions handed down by the elders or king. If anything, such decisions fell in the category of customary arbitration or conciliation. To him, a continent that is built on the foundations of respect for elders and authority figures cannot be truly classed as a society that nurtured self-determination.
If this discussion is to be given a fillip, it would appear that what protagonists of African Mediation are actually pushing for may be cultural relativism in the processes of mediation in the continent. This is not new in global thinking if reference is made about similar debates that have been built around the concept of universal human rights. Some schools of thought have dismissed the concept of rights that are globally known as human rights, arguing that a number of them did not relate to other peoples but the western world and their culture of individualism. It is thus not unlikely that what some persons want to see is the infusion of African cultural nuances in the conduct of present-day mediation.