So much is happening in the ADR Industry in Nigeria today. Discerning professionals who seek to have a go at the opportunities being thrown up by these developments must do so only after a sound reflection to ascertain if the industry is the right fit for them.
What must be considered carefully is that there are presently only a handful of organizations providing mediation services in our jurisdiction. Therefore, the possibility of white collar jobs in the industry is relatively scarce. That is not to say the potentials are not great. There are numerous other openings that trained professionals can take advantage of if industry leaders will be more proactive and establish industry specific ADR Programs to cater for their specific needs.
Aspirants to the mediation profession must be clear in their minds the objective they set out to achieve by training as mediators. In a recent heart to heart talk with a young man who yearns to train as a mediator, I found that his objective is to make a name as an activist dispute resolver. He desires to push certain positions which he believes are best resolution options for certain situations.
Having carefully listened to him, I said to him that he could never achieve any of these in the role of a mediator. As mediator, he was expected to be neutral and impartial. He has no rights to hold any positions in matters that will be referred to him for resolution. The mediator cannot be cast in the mold of a Judge or Arbitrator whose evaluation of the evidence before him will found the judgment he pronounces. This therefore goes to state that while society will pay due recognition to an activist Judge, the place of an activist mediator will be an anomaly.
Those who patronize mediation must in some sense be self-sufficient. They are expected to come to the table fully prepared to understand the flow of negotiations and to actively participate in it. They must know and explore options open to them in the process. I perfectly understand that in practice this is more of an ideal. This is even more so in community mediation where parties sit before you and ask what you as mediator propose that they should do to resolve their challenge. In some other cases, power imbalance between the parties is so palpable that you quietly wish you had the powers of a Judge to steer the wheel to what you perceive as the justice of the case. What to do in such circumstances? The model standards of conduct for mediators adopted by a number of international mediation bodies, states that ‘’a mediator cannot personally ensure that each party has made free and informed choices to reach particular decisions, but, where appropriate, a mediator should make the parties aware of the importance of consulting other professionals to help them make informed choices’’.
The mediator is not a lawyer to the parties. It is immaterial whether or not he is a lawyer by his primary profession. There are as many non-lawyer mediators as there are lawyer-mediators, now properly addressed as Attorney-Mediators. Only recently a group of forward looking lawyer-mediators in Nigeria incorporated a professional group known as Attorney – Mediators Association. A run through their objectives will show that rather than seek engagement as lawyers to parties who appear before them, the Attorney-Mediators Association holds out as its main objective the continuous training and development of its members in the finest traditions of mediation.
Aside not being lawyer to parties, the mediator is also not in a position to offer other professional services such as his expertise in the subject matter of dispute.
To be a mediator, you must understand you lack the coercive powers of a judicial officer and the advisory roles of the mediation advocate. You derive power from your skill and competence to lead the parties through the labyrinths of complex socio-economic conflicts. You stand on a higher moral ground only if you can assist parties think through their challenges in a creative and consensual manner.
It should interest you to note that despite the great satisfaction that disputants derive from the competence of a mediator and the consequential societal standing and respect he derives therefrom, the mediator shall not receive gifts of any kind in appreciation. It is a canon provision of the ethical rules on impartiality that a mediator should neither give nor accept a gift, favor, loan or other item of value that raises a question as to the mediator’s actual or perceived impartiality. However ‘’ a mediator may accept or give de minimis gifts or incidental items or services that are provided to facilitate a mediation or respect cultural norms so long as such practices do not raise questions as to a mediator’s actual or perceived impartiality’’ say the rules. So strict is this rule that even at free mediation service institutions such as the Lagos State Citizens Mediation Centre, the rule is not only enforced on mediators but translated into the Yoruba language and pasted around open spaces to guide non English speaking disputants who benefit from the services of the Centre.