When a loyal follower of this column called last week to say that he was disturbed by the analogy of mediation being as intense as a wrestling bout, I chuckled. I was satisfied that the message has been delivered, not because mediation is combative nor as intense as wrestling in the true sense of the word but that mediation is not a walk-over process. The moral of that analogy, which by the way is not original to me, is that parties in mediation need to fully engage as well as have the presence of mind to come to consensual agreements.
According to Professor Andrew Goodman of the Standing Conference of Mediation Advocates (SCMA) a key consideration to engaging in mediation is whether you want to be right or you want to be better off in the circumstances. If you merely wish to be right irrespective of the after consequences, your best bet probably should be litigation.
However, the reality is that a sizeable number of people in dispute are unable to decipher what is best for them at that moment. In the heat of dispute, emotions take the better part of them. So engulfing is their claim to being right that they forget that the opponent is also human and has his or her own pains caused by omissions or commissions on both sides. At that point too they fail to think through what consequences may await both parties subject to how best the dispute is managed.
I recall a story told about a seasoned lawyer who refused to pull through a litigation which he was almost certain he would win because of his fear for the life of his client. He told his rather disappointed client that if he won the dispute wherein some conmen had criminally erected a property on her land, the crooks would most certainly kill her. She had the option of allowing counsel to negotiate an amicable resolution or to desire to be legally right and to confront whatever consequences should any arise. The client opted for the judicial case management and got paid a juicy sum for the property.
I should not be misunderstood to be advocating for parties in dispute to give up on their rights whenever same need to be enforced. The point being made is that in the light of contemporary opportunities in the judicial space, parties should always think through how best such rights can be claimed without the avoidable pains of a prolong litigation.
Mediation as a strongly recommended form of dispute resolution will be better appreciated if parties and their counsel understand the multiple opportunities that it presents. Mediation provides an opportunity for counsel and client to evaluate whether or not the issues in dispute can be amicably resolved. It is only at mediation that parties can get to know more about the dispute without any harm or consequences of being short-changed. When parties get into a dispute, they necessarily drift apart irrespective of how close their relationship had been. When that happens, they are unable to access or understand further details of the cause of their dispute and how it has affected each other.
After listening to each other at the preliminary stages of mediation, parties get to hear all of the hitherto unknown facts and begin to understand the strengths and weaknesses of their position and that of the opponent. They are able to understand first hand, how the other party feels about the situation and why, if at all, they will not be able to resolve the dispute through mediation.
Some people worry if with the opportunity for peace that mediation offers, the process can still be regarded as being able to provide justice for those who hurt. This question was raised in one recent online meeting. A participant had wondered if a process which allows for mutual understanding and compromises can be seen to be a platform for the provision of true justice. The question elicited a lively and robust debate. Interestingly, some lawyers of the rank of Senior Advocates of Nigeria who were at the meeting agreed that mediation was a veritable way to obtain justice.
The term justice can be defined in context. Four common contexts in which justice is used are: distributive justice, procedural justice, retributive justice and restorative justice.Out of the four contexts, the most commonly used relates to procedural justice in which parties approach a court of law to determine their rights.
Unfortunately, there are too many people who restrict their notion of justice to procedural justice in which parties get a determination of their rights through a court of law. In my respectful view,while the conventional courts of law remain the bastion of justice as known from ages past, a good example of what should constitute true justice is what a party considers as fair and acceptable to him after an unfettered and exhaustive discussion of the hurt by both victim and wrongdoer in a mediation process.