I had an end of year review with a client last week. In the course of the review, he said that though he found my newspaper column on alternative dispute resolution quite interesting, what bothered him and his friends was the lack of legal compulsion in the process. He was of the view that mediation was too flexible to produce any effective outcomes in a society like ours where the language of interaction was literally one of brute force. He opined that many people preferred litigation not because they found comfort in the expense and technicality of the process, but because that is the only way to compel obedience to the established justice of any case.
Though I share some of his concerns, I however differ in the conclusion that mediation does not have enforceable legal safeguards that can make the process worth a try. For example, no knowledgeable mediator or mediation advocate will advise a mediation session when the statute of limitation is of immediate concern in the dispute between parties. Where the threat of a statute bar is real and just around the corner, the sensible thing to do is not to seek or continue an amicable resolution of the dispute but to file a lawsuit, if for nothing, but to serve as a preservatory step in the matter. Other situations may arise where the respondent has engaged in acts that are detrimental or may cause injury to the claimant in a manner that cannot be compensated in monetary damages. Should the claimant remain patient and take no judicial steps to prevent or abate the injury? It is better to invoke the coercive powers of court through a lawsuit than to allow the subject matter of the dispute to be shot down through a statute bar
My experience is that to derive the best outcome in dispute resolution, no process should really be a stand-alone. As society becomes more and more sophisticated, there is no one who can be a repository of all knowledge. This is why it is advisable to always seek a second opinion, particularly when the stakes are high. The importance of a second opinion in a professional setting is invaluable. In medicine, law and other professional practices, teams of professionals working together often receive better patronage than the settings of a solo practitioner. A senior colleague once rationalised this assertion when he spoke of his preference for a government funded ‘’General Hospital’’ rather than the convenience of savouring the aesthetics and customer experience strategies of private hospitals.
He said that because of the large numbers of doctors and other medical personnel employed by such government facilities and the endless streams of patients, doctors at the general hospitals were likely to have better hands-on experience than their contemporaries in less staffed private hospitals. He further illustrated his points with routine law firm processes where large firms create specialist desks for teams of practitioners. According to him, the strength of a big law firm is drawn from chambers meetings where practitioners come together to share perspectives and opinions on cases. These brainstorming sessions provide the solid legal representation which clients enjoy.
Unknown to many, team strategy and practice is a key area of strength for mediation. Since the disputant who is the ultimate decision maker in mediation is not all knowing, he would need advice from professionals in the fields where the dispute relates. Just like in collaborative law practice, mediators and mediation advocates are beginning to recognize the need for experts in fields outside of law. When professionals with requisite skills relative to the dispute are pooled, the client is better placed to receive a robust guide that will enable him achieve better outcomes in the dispute resolution process.
It makes no sense to think that because mediation is not an adjudicative process, parties can dispense with the services of astute lawyers who have themselves undergone a mediation advocacy skills training. Even in situations where a mediation advocate is not accessible, it still makes greater sense to have a lawyer in the mediation team. It is only an instructed lawyer who will be able to detect and manage the likelihood of a statute bar. It is only a lawyer in the team who will be able to advise on the need to first institute a lawsuit, get an order of injunction to preserve the subject matter of the dispute before engaging in the mediation process. The creative use of some coercive powers of court do not in my respectful view derogate from the place and importance of mediation. All that is being said is that where mediation is weak, parties can draw on the strength of litigation or strict law to keep matters preserved or afloat. Conversely where a litigation process is dragging on for too long, parties can apply to court to stay proceedings to enable them explore mediation. A number of courtroom combat have been resolved this way.
We wish our readers a merry Christmas and a happy new year
