In medical practice, no serious intervention is undertaken in regards to the health of a patient without reference to the results of laboratory tests. The laboratory has been an integral part of medical care for centuries. Research indicates that sixty to seventy percent of critical decisions in diagnosis and treatment are attributed to laboratory findings. According to an online resource, in vitro diagnostics are empowering patients with information about their health and giving doctors the tools that they need to choose optimal treatments for people in their care
If the foregoing is true of medical diagnosis, wouldn’t it be a nice idea that dispute resolution which also impacts life in monumental proportions go through some of legal ‘laboratory’ tests to determine what emotional state of mind explains a person’s anger or outward positioning such as to be baying for opponents’ blood? It was against this background that I was intrigued when at a recent seminar on developments in ADR practice, an attorney-mediator said to his audience that mediation is to litigation what a diagnostic laboratory is to medicine.
Though I have not had the privilege of time to discuss this assertion any further with the source, the message however appears to me, crystal clear. It is common knowledge that when matters go to the courts, the judges are not trained to look at the emotional or social aspects of the dispute. Rather, they are empowered to distil the rights and wrongs of parties to the dispute following rigorous standards of law as encapsulated in the evidence act and other adjectival laws. Yet, a significant proportion of human actions are based on emotions and other social experiences which condition our respective world view.
The point being made here is that a civil lawsuit instituted in court without a prior attempt at an amicable resolution facilitated by a third party neutral may be compared with the medical treatment of an ailment without a laboratory diagnosis. On the contrary, when counsels on both sides have had the privilege of having undergone the ADR process of mediation, what is presented to the judge in court is an already diagnosed version of the contentions. What this would amount to is that parties would have listened directly to each other, resolve what can be resolved between them and approach the court for the judicial determination of what cannot be agreed upon. Mediation is a formalized process of thoroughly investigating what has emotionally or commercially gone wrong with a view to aiding the judicial process and the parties proffer a fast-track resolution devoid of technicality or complexity of any kind.
I was privileged during the week to attend an advanced mediation skills training offered by Professor Andrew Goodman of the UK-based Standing Conference of Mediation Advocates (SCMA). Andrew gave the hint that it was essential that mediators had a pre-mediation contact with parties and their counsel with a view to preparing a more enabling environment for parties. He proposed a number of questions to both counsel and parties with a view to enabling them reassess their positions in the run up to the mediation session.
The disputant should be able to realistically answer the question as to what he desires to achieve in the dispute resolution process. Simple as this proposition may appear, there are a number of parties who do not avert their minds to it. All that they are concerned with is that an opponent has hurt them and must be dealt with. This wrong approach is best corrected when the disputant in his preparation for mediation thinks through what is actually important to him at the onset of dragging the other party to court. If it were a loan repayment scenario would it be that he now desperately requires the repayment to meet his other financial obligations? Could it be that the debtor is not showing any signs of repayment even in installments? Could it be that rather than repay the loan given to him by way of mutual respect and trust, the debtor is now spending far greater sums investing in other projects. Such attitudes particularly in the last scenario can convey the body language that the debtor takes his creditor for a fool who may well forfeit the loan repayment because of other manner of relationships which was not contemplated at the time of transaction.
Mediators would usually get answers to the foregoing and more at the probing phase of mediation. This phase is so critical to the outcome of the process that it can safely be said that once a mediator misses the opportunities afforded by the probing phase, he has probably lost settlement of the dispute.
I am an advocate of mandatory mediation. I also belong to the school of thought which holds that mediation in the strict sense never fails. Where for any reasons parties unsuccessfully fail to reach an agreement, the information they had exchanged in the process provides an opportunity for the parties to be hard on the unresolved portions of the matter and soft on themselves having interacted and now know what impels them.