In the landscape of dispute resolution practices such as Litigation, Arbitration and the ADR processes there would appear to be no other place at which the informed choices of disputants themselves is more imperative than in mediation.
According to an online medium, an ‘’Informed choice is a voluntary, well-considered decision that an individual makes on the basis of options, information, and understanding. The decision making process should result in a free and informed decision by the individual about whether or not he or she chooses or wishes to accept these options’’.
Flowing from the above, it is imperative that before a disputant appears at a mediation session, the power to take personal decisions on how his dispute is resolved must not be taken lightly. The mediation advocate (Counsel) owes his client the irreducible minimum of sound information and understanding of the process he is participating in. He should also know what options are available to him in order to make what in the circumstances can be referred to as an informed decision.
Put differently, the lawyer in mediation simultaneously wears the garb of counsel, consultant, teacher and or coach. His client’s lack of adequate information in order to make an informed decision on his own behalf spells a disaster of some sort
As the alternative dispute resolution culture deepens in our jurisdiction one of the corollary effects will be the search for greater knowledge to attain international best practices. Within the expected period of maturation however, there must be a look out for pseudo experts who might attempt to take an advantage of the learning curve to make quick gains of opportunities thrown up by these developments.
The likelihood of the aforementioned is because there are not as at yet statutory regulations on standards of training and accreditation in many jurisdictions. The most widely accepted industry barometer in this regard is the advisory and standards of the International Mediation Institute (IMI). As stated on its website, IMI is the only organization in the world that transcends local jurisdictions to develop global, professional standards for mediators and advocates involved in collaborative dispute resolution and negotiation’’.
It is not uncommon in dispute resolution to find parties at crossroads regarding the weight of evidence or the advisability of investing more money and time in the pursuit of judicial remedies. Parties may also desire to be professionally guided on the appropriate platform for the resolution of their dispute. In the search for external help, parties can take advantage of what is referred to as ‘neutral evaluation’ by experts who are called in to assist in the efforts to mediate complex matters.
In the use of neutral evaluation, a party may wish to test particular legal arguments that can impact the success or failure of his entire case in litigation. The outcome of the evaluation usually conducted by a former judge or counsel widely experienced in the area of concern comes in the form of a non-binding advisory.
In carrying out his role, the neutral evaluator is expected to offer an unbiased view of the issues in contention and assist the party or parties engaging the service to focus on the most appropriate approach to resolving the dispute.
An online blogger notes that ‘’ When conducted by experienced neutral professionals with no preconceived view of the issues, neutral analysis is a powerful and effective tool in helping parties better understand, and even settle their dispute. Often called a second set of eyes or a clear-eyed assessment, neutral analysis is much more than a case evaluation with a predicted outcome or settlement suggestion’’.
‘’Where the neutral is a former judge, neutral analysis offers a view from the other side of the bench with deep, detailed insights on the case issues, presentation and likely outcomes. A former judge or justice brings these unique years of experiences to neutral analysis. A non-judicial neutral with extensive trial experience or substantive subject-matter expertise can bring other experience to the analysis as well as a view from counsel’s perspective having represented clients in disputes…’’
In the search for best outcomes in mediation there is also some debate on the professional background of the mediator. While some clients prefer the attorney-mediator for the fact of his ability to bring clarity to the legal issues involved in the cases before them, others prefer the non-lawyer mediator that comes with a clean and uncluttered mindset devoid of prior legal knowledge or experiences of same issues elsewhere.
The dichotomy between these twin fraternities is already an issue in jurisdictions where ADR has taken roots for decades. In such jurisdictions, non-lawyer mediators frown at the practice whereby courts engage the services of only attorney-mediators for court-annexed mediation programs. While the mediation skills of non-lawyer mediators in those jurisdictions are not in question, the bar defends itself by stating that engaging non-lawyers to mediate in court programs would amount to aiding lay persons engage in the unauthorized practice of law (UPL) which is so strictly deterred in such climes by legislation.