Nowhere else does the popular saying that “You can force a horse to the stream but cannot force it to drink’’ hold true more than at mediation. Parties who come to mediation come of their own free will, or so it seems. What happens prior to parties arriving at the Mediation Centre is unknown to the mediator. The Mediator gets involved when the Mediation Centre assigns him the case file for mediation. Soon as the parties take their seats before him and introductions made, the mediator undertakes the burden of explaining to parties what mediation is all about. He tells them it is a voluntary process which is undertaken without prejudice.
He informs them of the confidentiality of the process, which in any case should have been obvious to the parties who are seated alone with him in the mediation room. The mediator should usually want to identify every party in the room with the nature of their stake in the matter. This is because anomalies may occur where the mediator for any reason lowers his guard. In one contentious matter, a party came into the sitting with a man he announced as his lawyer. But for the protestation of the opposing party, mediator would have been misled to believing the claim. In yet another, a party was caught attempting to record the mediation session.
Perhaps the most significant of the preliminary actions taken at the commencement of a fresh mediation exercise is the signing or execution of the Agreement to Mediate Form. This standard form of agreement is what confers authority on the mediator to facilitate the resolution of the dispute. It is in this document that parties attest to having come to the mediation of their own free will. They also affirm their understanding of the process having been adequately briefed by the mediator.
They affirm that by executing the agreement to mediate they undertake to abide by the confidentiality of the mediation exercise. In some sense the Agreement to Mediate would appear to be tantamount to conferring jurisdiction on the Mediation Centre and or the mediator. Ordinarily speaking the jurisdiction of a Mediation Centre or institution is unlimited. It has no geographical restrictions. This is why a dispute which has its foundations in say Kano may be resolved by mediation in Lagos if the parties so agree or submit. In other words the jurisdiction of the mediation Centre whether multi-door courthouse or otherwise is inherent in the parties submission
Issues sometimes arise at the point of signing or executing the agreement to mediate. In one such instance having quietly listened to the mediator talk on what the process was all about and the need for good faith mediation, a respondent declined to sign the agreement to mediate because according to him, he was yet to understand why his creditor brought him to the Centre. Despite all explanations and entreaties to give the process a try, he refused and urged the mediator to go ahead with the other aspects of the mediation. It was obvious that the respondent was acting a written script because refusal to sign the agreement to mediate would vitiate whatever actions and outcomes the mediation arrived at. It would be akin to a Judge of court lacking jurisdiction to entertain a case. And whenever this occurs all that is done in the matter will be a nullity. If a disputant has no intention to mediate why waste the time of the Mediation Centre and opposing parties. It is an entirely different case if at any point of the mediation, the party had lost interest and exited the session. Close on the heels of parties who set out to waste the time of opposing parties and mediator are parties who have no authority to settle. They usually will come in a representative capacity displaying an air of authority to hoodwink others in the room. In one such occasion, an assistant manager who had worked under the complainant in the position of Supervisor was sent by the respondent Company to represent her. It was obvious that aside the lack of requisite authority to settle on behalf of the Company, the presence of the assistant manager was intended to rubbish the ego of the complainant.
It would appear that these short comings which occur from time to time are a product of inadequate preparation for the process. To actively participate in a mediation session parties should have done a lot of research and learning before the day. As John W. Cooley noted in his book on mediation advocacy, a mediation advocate in addition to other things should inform the client that he will be asked to sign a mediation agreement at the beginning of the session that will cover such matters as confidentiality, Immunity of the mediator from a lawsuit or subpoena to testify and the manner and timing of the payment for the mediation services.
In conclusion it is worth mentioning that the Agreement to Mediate entered into with the mediation Centre and or mediator must not be confused with the agreement to mediate disputes which parties enter into between themselves prior to the dispute or after a dispute has crystallised.