As I write this piece, I am not unaware of the different things it might mean to different people. Some with their noses in the air may see me as making light of a serious professional development. While I appreciate this, I suppose and do know as of fact that I am making a contribution which shall trigger a discuss that would attach to me for good or for ill.
Let me begin with a caveat. I am not a football fan. Indeed I am ‘hopelessly’ so bad in the issues of football that unlike the average Nigerian male and indeed females now, I can count on my fingertips the number of times I have watched any football match from the beginning to end.
The foregoing notwithstanding, I have by inspiration found out that there can be no better way of explaining the roles of a lawyer in mediation than through the football analogy which I desire to entitle “The Mediation-Football Analogy’’
And to further put all of these in perspectives, let me also say that this piece is targeted at my colleagues in the legal profession who worry endlessly as to the functional role of lawyers in a process that gives pre-eminence to parties in the dispute rather than to their legal representatives. This question is thrown at me over and again as a mediation advocacy trainer.
Unlike the lawyer in litigation on whom all attention is focused, the lawyer in mediation is but a member of a strategy team which has the disputant as the key participant. The lawyer has no place in the process to showcase his erudition or learning. He cannot be heard to determine the outcome of the process, based on the legal strength of his client’s case. The Mediator as facilitator of the process focuses his attention and listening ear more to the disputants rather Counsel. A few Mediators handle this so badly as to make the lawyer feel unwanted. Some Counsel who react badly to the body language or direct attitude of such Mediator may become combative or become so disinterested in the whole process that in one or two cases, dozed off.
I have heard Mediators tell stories of how they sent off Counsel from mediation sessions because they have become disruptive. While I concede that the Mediator is the supervisor of the process and may take whatever steps he or she deems best to achieve a seamless process, I hold the view that this scenario may not arise if the Mediator skillfully manages the legal context of mediation and the due regard to Counsel. The outcome or stories of these incidents quite often make clients unable to appreciate the great role of counsel and to pay their fees appropriately.
To underscore the importance of lawyers in a mediation session, it is important to draw the following analogy. Imagine for one moment that a mediation session is a football match between two opposing teams. The Mediator is the Referee; the disputants are the footballers and the lawyers are the football coaches of the respective sides. Just like the Referee focuses his attention on the footballers in the field of play rather than their coaches, so is the attention of the Mediator focused on the disputants in the mediation session rather than their Lawyers.
The Mediator has no interest in the outcome of the mediation just as the Referee has no interest in whichever of the two teams wins the match. But like the Referee, the Mediator must keenly watch and facilitate the disputants’ negotiations, just as the Referee watches the footballers at play with a view to reining them in to keep to the rules.
At the field of play some coaches may be found to be very active on the sidelines yelling instructions to the footballers. What the footballers do with that real time instruction is left to their discretion and personal skills.
In like manner, the lawyer at mediation seats after his client who sits closer to the mediator. Since the client does much of the talking and taking decisions, the lawyer who sits by his side may only whisper guide and perspectives to him while the mediation is in session. It is left to the discretion of the disputant at that point to use the information passed to him or to discard them. This will depend on the intelligence and versatility of the client.
No coach dons the jersey of his club side to score a ball for his employers. So also should no mediation lawyer be expected to make settlement decisions for his client. The true worth of a coach is exhibited in the workouts and pre-match reading of the other side’s style of play and how to demolish these. In like manner the true worth of a mediation lawyer is his ability to groom his clients prior to the mediation session. He should be able forecast what is of importance to the other side and how these would best be negotiated. If the engagement and handsome pay of a coach is a sine qua non to the performance of a good team, the engagement of an adequately remunerated mediation lawyer is imperative for a beneficial outcome at mediation