Opportunities and “magic’’of mediation

Practitioners of Alternative Dispute Resolution often compare notes and share perspectives because the literature in that area of practice are usually not as fleshy as those of litigation practice.  Law Reports which are critical literature for the guidance of legal practitioners are publications which give you the titles and details of numerous case reports and how presiding Judges reached their conclusions or judgments. They serve as precedents to which lawyers must make reference in arguing their cases or filing lawsuits in matters considered justiciable. On the contrary, however no such literature is available to mediation advocates or mediators as a guide because mediation is confidential.
A recent international perspective which again highlighted the opportunities that the mediation process provides is quite instructive and perhaps capable of dismantling resistance to the process. The point was made over and again that even in cases where mediation does not resolve all the issues in contest, the process has the dynamic of reducing hostility between parties and clarifying the issues in contention.
For instance, the first opportunity the process provides to the disputant and his Counsel is the opportunity to know more about the dispute. Usually when parties get into a dispute they break all communications between them because the dispute has begun taking on a life of its own. At this point none of the parties have further firsthand information on the dispute, but react to perceived body language or hearsays of mutual friends and family. Therefore, whenever the disputant briefs his or her lawyer, the only credible  facts placed before Counsel are facts as to the last date they stopped communicating with each other or having firsthand knowledge of the goings-on between them. It is for this reason that whenever mediation gives the parties themselves the opportunity to tell their full story to the hearing of the opponent (without the evidential restrictions imposed at court trials) parties begin to realize certain mistakes and or misunderstandings that they have had of each other’s actions or intentions. At this unfettered story telling stage, both Counsel and party begin to learn more about the matter, the opposing party, their Counsel, the strength or weakness of each other’s case and the reasons, if any why the matter cannot be settled.
This dynamic affords disputants an opportunity to communicate their own personal views about the matter, having listened to the perspectives of their opponents. For Counsel in the matter, the unfettered stories of the parties provide better information upon which to ground legal claims or defences should the matter not settle. This foregoing scenario is applicable to all manner of disputes, be they commercial or civil.
Take for instance this true life story told me by a colleague of a couple that had been involved in a long drawn divorce suit. Despite the opportunity afforded them by the court to go and negotiate terms of the divorce, parties had return to court with information that the negotiations broke down. On this particular day the Judge who is herself a trained mediator had sought to know from the lawyers why the negotiation broke down. Unknown to them, the Judge had from her exalted judicial seat seen a ‘’common ground’’ upon which the matter could have been better managed or anchored. So she asked parties to stand up in open court. While they remained standing, the Judge asked how come they were wearing the same designer spectacles. The husband responded that he had bought them on one of his several journeys overseas. The Judge then announced that the court would rise and hear parties in her chambers. When after about twenty minutes the parties returned to the courtroom, it was a stunned audience that heard each party announce in response to the Judge’s questions that they were no longer interested in the divorce. To many, it was magic.
Information that later filtered out was that in the chambers the Judge had wondered why they were bent on a divorce and still comfortably wearing similar designer spectacles. In seeking the underlying interests in the divorce, it turned out that it was the lady who could no longer stand the excessive travels of her husband because according to her, she had married him for companionship and not his money. Undoubtedly other issues may have been thrown up along the line leading to the need for a divorce. Simply therefore the magic was the observation by the Judge that a couple who have irretrievably fallen out of love may not continue to wear the same spectacles even in the heat of the dispute. The Judge may also have professionally cut through the ice to discover the one single underlying issue – the ‘’Ajala’’ (obsessional) travels of the man..
Even though only the parties and the mediator now know the concessions agreed upon by them, isn’t it likely that the man may have pledged not to travel unless it became inevitable? Isn’t it possible that the man may alternatively have pledged to carry his wife along on his foreign trips so that her much cherished companionship will be achieved overseas? Isn’t it possible that…….and the options go on? That is the magic of mediation.