It is unwise for society to continue to look at the good of mediation without as much as taking steps to address the hurt it inflicts on a critical segment of society.
Valentino Buoro
The emergence of alternative dispute resolution (ADR) processes into the judicial system has been hailed in several quarters as the best thing that has happened to that area of human endeavour in recent times. The development has given rise to practices such as mediation and conciliation in ways we had previously never known. Curiously however the legal profession which ordinarily should be a core beneficiary of the process has in some ways resisted it, to the consternation of the public. Like other promoters of ADR, I had myself wondered why the resistance continues despite assurances that ADR is not an acronym for ‘alarming drop in revenue’ as cynically styled by the opposing segment of legal practitioners.
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My concerns on the foregoing have however been significantly altered by the recent exposure I have had to studies in community engagement. Of particular relevance was listening to an online lecture on ‘’the complexity of doing good’’. The kernel of the lecture was that in community engagement not all good is good for everyone. Your good deeds can hurt beneficiaries’ interests in a way you never imagined.
The story was told of a shoe manufacturing company which operated in a community and sought to give free shoes to indigents who could not afford one. The strategy was that for every pair of the Company’s shoes purchased by a member of the community, another pair was given out to a member of same community that was not in a position to buy one. It was a community template of ‘buy one, get one free’. But sooner than later the company got into trouble waters.
The community was unhappy that the generosity of the Company was negatively impacting the business of its local shoe manufacturers who were experiencing low patronage as a result of the scheme. The lecture also gave other examples of good deeds that in some ways hurt beneficiary communities.
It is perhaps in the foregoing light that the benefits of mediation to clients and counsel should be viewed. Let us take for instance the benefit of speedy resolution of clients’ disputes through mediation. How does this feature turn out for client and counsel? Indisputably the client will benefit from a speedy release from the emotional trauma of the ongoing case. The speed of resolution will perhaps also save him some costs. On the side of counsel the quick resolution will save him the stress of continuing intellectual battle to win the case for his client; it might also save him the pain of losing the case if his client’s case is weaker than the opposition. Straightforward as this may appear, the speed of resolution may however not be in the full interest of the litigation lawyer. Unknown to the public, the good of easing up his stress also denies him long periods of gainful employment when he should be tasking his intellectual capacity on behalf of the client for an ongoing fee. Put differently, lawyers who earn their living principally from litigation, may find themselves jobless for long periods of each year because potential briefs have been speedily resolved elsewhere through mediation.
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Another sore point for the legal community on the intervention of ADR is what appears to be a societal downgrading of fees for the service. If ADR practice will continue to be regarded as an ‘’all-comers’’ vocation which attracts only a token as fees, then the legal community may for a long time remain in the trenches to defend an entrenched profession for which they have toiled and demand to be appropriately remunerated.
The point being made here is that it may remain unwise for society to continue to look at the good of mediation without as much as taking steps to address the hurt it inflicts on a critical segment of society. This, as I now know, is at the heart of community engagement.
That said, it would not amount to much for me to attempt to suggest here, how individual lawyers should work around the concerns that have been highlighted. The legal profession as an identifiable community is ingrained with its nuances and procedures. Anything that would disrupt same should therefore be treated in the whole.
On the other hand it is perhaps time every lawyer should wake up to the realization that the situation has gone past reversal. Mediation in truth has not erased legal jobs; all it has done is to propose a new and faster way of doing the same thing. If millions of other jobs and processes have been erased by technology and modernity, the legal profession should not consider itself immune.
Time also is ripe for thought leaders in ADR to seek answers to aforementioned concerns by way of consultations in order to speed up the full buy-in of the legal community. It is not too late in the day to begin to explore agreeable scale of fees for full alternative dispute resolution representation or the hybrid of lit-med(Litigation and mediation). Indeed at this time of its growth, ADR, in my opinion is caught in the complexity of doing good.