As the year rolls to an end, it is the practice for people to look back and take stock of how well they have performed in their respective endeavours. I suppose it will not be out of place for this column to take a cue and examine certain challenges in the basics of mediation.

Like everything in life, mediation has its own challenges. Mediation suffers some criticisms as an all-comers field, because mediators do not have the power to decide the outcome of a dispute resolution process. Such powers inhere in the disputants, whom, as we professionally say , occupy the drivers’ seat. The point of contention as we shall see presently is that occupying the driver’s seat neither serves as guarantee of safe driving nor certification that the occupant of the seat is a trained driver.

The power of disputants as ultimate deciders of the outcome of their cases at mediation sometimes present challenges of a peculiar kind. Some disputants come to mediation without a clear idea of what the process is all about. For reasons of such ignorance or the sheer awe of the socio-economic imbalance between them and opposing parties, these disputants would rather that the mediator proposes the terms of settlement between them. This creates a difficulty for the mediator, whose hands are tied, professionally speaking.

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Interestingly, the dilemma of the mediator being called upon to decide for the parties in mediation is not restricted to disputes between individuals or groups in social relationships. It sometimes occur in corporate and commercial disputes where lead actors may know less than is desired to effectively resolve the challenge. As owners of capital or paid corporate chief executives, these actors had relied on the professional skills of consultants and staff to get them to where they have found themselves in dispute. Asking them to therefore take independent decisions on resolving the dispute could be quite discomfiting for some. The situation is not helped by the fact that it is inadvisable to invite persons whose actions or inactions created the dispute in the first instance to play key roles in resolving them. This is particularly so because as paid agents, their true stake in the project may be doubtful. Anecdotal evidence would also seem to suggest that rather than face the task at hand, they often draw the process back by attempting to validate their initial errors in order to look good before their employers.

Some marketing experts express the opinion that the element of disputants deciding on the terms of dispute resolution by themselves may after all not be an attractive selling point. To them, all that a disputant desires to know is that he or she will be saved the trauma of an unending dispute by professionals who operate a fast track procedure. The disputant wants to be assured that he or she can keep tabs on the cost of the process; unlike in litigation where inherent procedures may make this impracticable.  Commercial men are happy to know that there are professionals concerned with the development and sustenance of their bottom-line. They care less how the professionals achieve these deliverables, knowing that that was why their services were engaged in the first instance.

The maritime industry presents a crystal example of how the deficiency of technical knowledge may impair a disputant’s role in proffering solutions to issues in dispute. Many years ago, the Federal Government of Nigeria discovered that the nation was losing several millions of dollars as a result of unresolved international business disputes involving Nigerian Importers and Exporters. Whenever such disputes arose, the importers were found to quickly abandon them for reasons of lack of financial and technical competence to confront them. This was what gave birth to the Cargo Defence Fund, a Public Private Partnership (PPP) organization established under the auspices of the Nigerian Shippers Council. The Fund which has an independent Board of Trustees was designed to be the voice of Nigerian importers and exporters to match their defaulting foreign partners dollar for dollar and technical skills for technical skills. While I cannot authoritatively say how much of this advantage Nigerians have so far taken of the Fund, it is remarkable that the Fund is still very much alive for the use of discerning stakeholders. The story of the Cargo Defence Fund therefore illustrates the challenge that can be poised by lack of requisite knowledge in the resolution of disputes. While the Cargo Defence Fund stands in the gap in international cargo disputes, who speaks for other civil and commercial disputants who lack the capacity to make informed decisions? Maybe the ADR Community should consider the promotion of Conciliation as an imperative next step whenever mediation stands the risk of being frustrated by knowledge gaps. Conciliation resembles mediation in many respects. Its unique selling point however is that at Conciliation it is the Conciliator who designs all possible solutions to the dispute. The role of the parties is merely to consider the options and to make a choice of whether or not they desire to adopt same. In this regard they benefit from the professional competence of the Conciliator.