Mediator accreditation programs are routinely offered by court–annexed mediation centres, notable mediator associations as well as a handful of universities
Valentino Buoro
Last week in Lagos, eighteen professionals consisting of six medical doctors, a retired naval General and others, predominantly lawyers attended a mediator accreditation training at which they were put through global best practices of facilitating mediation. The course consisted of two days of instructions, two days of coaching and two days of participants’ assessment. Although the training was in all respects a mediator skills training, it nonetheless had a special flavor – basics of mediating medical malpractice cases. Irrespective of case type, mediating a dispute runs through five seamless phases. These are the preparation phase, the opening phase, the exploratory or probing phase, the bargaining phase and of course the concluding phase which may result in a resolution or otherwise of the dispute.
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The import of mediator accreditation does not appear to have yet dawn on many. The reason may not be unconnected with global debate on the necessity or otherwise of restricting free entry into the mediation profession through strict requirements of entry qualifications. It is not unusual therefore to find the appellation of mediator used in a loose sense by ignorant persons who would rather not submit to a reasonable management of their dispute by claiming to be mediators themselves.
As the global debate on mediator credentialing rages, there is some consensus that a convenient way to assure quality standards and protect the user public from incompetent mediators, is to focus attention on standards of mediator training programs. Mediator training and accreditation programs are routinely offered by court–annexed mediation centres, notable mediator associations as well as a handful of universities.
I recall that in answer to a question at a recent mediation advocacy training program, the facilitator had told participants that the worth of a mediation or mediation advocacy accreditation certificate was inversely proportional to the worth or recognition of the training organization that awards it.
You should therefore never be taken aback when as party to mediation, your mediator rolls off the process by telling you about his accreditation, years of experience and perhaps any areas of specialization. He will assure you he is a neutral party with no commercial or relational interest in the dispute. He will solicit your active participation in the process because the ultimate decision to resolve and the terms upon which the resolution is to be attained, are all dependent on the parties themselves.
Aside introducing himself and setting the ground rules for the process, every mediator must at the opening phase assure the parties that the process is confidential. Confidentiality of the process is at two levels. The first is that everyone at the mediation will at the commencement commit to the confidentiality rule by signing a confidentiality agreement. This is to say that whatever transpires at the mediation will never be divulged to anyone. The second level of confidentiality will arise when the mediator holds private sessions with the parties to explore issues thrown up at the plenary or to probe for the underlying interests of parties to the dispute.
So strict is the element of confidentiality of the process that at every turn of the caucus the mediator has with either party in the back and forth meetings aimed at assisting parties to find a common ground for resolution, the mediator must reiterate the confidentiality bond between them. A good settlement agreement in mediation is one that is workable, unambiguous and long lasting.
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In one assessment of a trainee mediator, the assessor discreetly left the door of the venue of the session ajar. It was not until at the point of debriefing the candidate that the assessor asked the trainee mediator why the door to the venue of the sitting was not shut. For the uninitiated, if the issue of the door was of any importance at all, it should ordinarily be the business of the last person to walk into the room to shut it behind him. The morale of the assessors query was that if the mediation session is to be confidential, it must strictly be so. No one else, not even the supervising mediator of the Mediation Centre, should be able to eavesdrop or listen-in on the conversation of the parties at session.
A corollary to the confidentiality of mediation is the fact that the process is also undertaken ‘’without prejudice’’. The effect of this provision is that if for whatever reasons the mediation does not resolve the dispute, matters disclosed at the mediation are protected and should never form the basis of evidence at any subsequent court trial.
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In concluding this piece, it is perhaps safe for me to state that a mediator is a man of faith – a strong believer in the power of good faith negotiation to resolve disputes. Like an ordained Priest of God, the mediator is a civil priest, empowered by the trust of the disputants to take their confessions on the omissions and commissions leading to the dispute over which he facilitates. He is by no means a better person than those over whose issues he presides. Though he holds only a civil trust, it is by all means a sacred duty to humanity and to the universe.