Every new convert to the world of alternative dispute resolution is usually an excited personality. It is like the gospel of salvation which fills you up with a new hope, a new vigour, and expectations of unlimited possibilities. However, so soon as you go out to preach your new learning with the zeal with you received it, some people think you have gone mad.
The multiple benefits of the mediation process are such that a convert cannot but wonder why others do not see what he sees. The speed, the confidentiality provisions and the uncommon opportunity of having a say on how you are judged in a contentious case add up the joy of the new discovery. Perhaps that is where it ends. This is because when you get the impetus to put your new knowledge to work; practical realities challenge your faith.
Initiating the mediation process constitutes a preliminary obstacle which parties find difficult to surmount. A party in dispute would rather not make the first move of proposing mediation to his opponent for fear of humiliation. If you do and your opponent turns down the peace offer, you feel a sense of hurt. You take the rejection personal and feel small before the rejecting party. This will be particularly so when you are the complainant in the case – the victim of an earlier hurt. Rejecting your move for an amicable resolution portrays you as one who had no strong legal case in the first instance. Ordinarily, either party, the claimant or the respondent, can propose that the dispute between them be settled by mediation
Breaking the ice at the point of proposing mediation has perhaps constituted one of the strongest disincentive or challenge to the mediation process. The way around it is to get a third party who is not involved in the dispute to propose the mediation on your behalf. Where this occurs and your opponent turns down the offer, you still have the opportunity to hold your head high and feign ignorance; safe in the assumption that the move was not in any case from you.
In professional terms, initiating mediation is one of the key functions of the mediation advocate. As your counsel, it is the duty of your mediation advocate to propose mediation to your opponent. He absorbs whatever invectives the opposing party may wish to haul at you for not being man enough to encounter him in the courtrooms. Be rest assured however that once you can get past the first hurdle of getting the other party to the negotiating table, other challenges can be managed and or absorbed by the mediator who is trained to literarily wear a ‘’bullet proof’’ at all times he is engaged in the resolution of disputes.
Norman Pickell, a Canadian mediator and lawyer, in a related article attempted to provide answers to concerns that may be raised when parties consider mediation. On concerns that the other side is too miserable and mean, Norman says ‘’Mediation does not make the parties become best friends. Parties who go to mediation are not any nicer than the ones who go to court. The difference is the process. Mediation is a positive environment in which the parties find practical solutions that work for them. When you don’t trust the other side, he says ‘You don’t have to trust the other side for mediation to work. Once an agreement is reached between the parties and is reduced to writing, it is binding and enforceable. But often the mediation process creates an environment whereby the parties do develop a trust for each other’’.
Occasions do arise when parties feel that the issues at stake in the dispute are too numerous or complex to be mediated upon. In this wise they would rather litigate the dispute or consider going for arbitration where adjudication will hopefully bring finality to the issues by Judge or Arbitrator decisions. To this trend of thought Norman notes that ’’Mediation works well in complex cases because you can negotiate each item separately or as part of a whole package. In the event that you are unable to resolve all of the issues by mediation, you may at least be able to simplify the case so that it is less costly to have a trial’
As a mediator, I can testify to the strategy of negotiating items separately in complex issues. I drew my experience from mediating multiple parties’ tenancy disputes. I discovered early in practice that whenever I dealt with several tenants at a go, they acted as a trade union. Once one of them said no to a proposal, all others followed suit. What I now do is to break into private individual sessions immediately after listening to the general issues at joint session. Once I am done with any one party at private session, he or she is denied access to the others until we are all done. In this wise everyone deals with his own matters as best suits him. After all, salvation they say is personal.