A peer discussion on the growth of mediation use in our jurisdiction a few weeks ago raised very fundamental issues that cannot be discountenanced by any practitioner desirous of contributing his quota to the growth process. My colleagues and I came to a troubling conclusion that quite often parties at mediation leave a lot of untapped benefits on the table for lack of a deeper understanding of what was required of them. Since after that encounter, it has become even clearer to me that if mediation is to achieve its set objective of becoming the ‘’new normal’’ in dispute resolution, both government and judiciary must take further steps of massive enlightenment programs for users of the process. It is not enough to enlighten the populace about the power that is now in their hands to resolve matters on their own terms. They must also be acquainted with the circumstances under which they can reach that goal. The truth that must be told is that parties who desire mediation ought to be in good legal standing; such that will not fetter their freedom to mediate and resolve disputes out of court. Where contrary positions exist, opposing parties have a right to raise them. This might make mediation unworkable.
Two critical factors determine the success of any mediation. These are process knowledge of mediation dynamics and subject matter expertise. It would appear to me as will be seen later in this piece that subject matter expertise will usually include a dose of legal knowledge or advice from appropriate quarters. Although this may seem to be of some advantage to lawyer practitioners of ADR, it should not necessarily be so since other professionals engaged in the practice are expected to have knowledge of the laws that regulate their professional practices.
Take the true life story of a landlord who, desirous of selling his property, asked his agent not to collect rents from his tenants for a period of one year. In his innocence, that period of grace without payment of rent was a generous notice for the tenants to peacefully vacate the property. When the landlord sold his property, the tenants sat tight and failed to vacate. He was shocked when at mediation the tenants demanded for statutory quit notices or a negotiated extension of time within which to find alternative accommodation.
The landlord was at crossroads. His obligation to deliver vacant possession of the property to the buyer had been encumbered. He felt sad that the ungrateful tenants had taken his one year offer of rent free accommodation as a ‘’Father Christmas’’ largesse. Their insistence on being served the statutory notice to quit gave him no option. Where for any reason he declined to take advantage of their alternative option of negotiating an extension of time at the mediation, he cannot immediately approach the court for legal relief as his lawsuit will be incompetent. The Court will not countenance a tenancy lawsuit without a valid notice to quit
The import of this narrative is that situations may arise in mediation where issues are raised about your legal position as a necessary precondition for an amicable resolution of the dispute. The lesson to learn here is the legal maxim that he who comes to equity must come with clean hands. Mediation does not absolve you from abiding with pre-action legal steps if they are an essential feature of the area of dispute. In its true essence, mediation is about negotiating parties’ legal rights, not lawlessness.
Two other legal points to always bear in mind are issues that touch on the statutes of limitation and the desirability or otherwise of a protective court injunction. Statute of limitation is a prescription of law. Where a law prescribes a period for instituting an action, it cannot be instituted after that period. According to a judgment of the Supreme court of Nigeria ‘’the statute of limitation removes the right of action, the right of enforcement and the right to judicial relief, leaving the Claimant with a bare and empty cause of action which he cannot enforce…’’. So when on sound legal advice you have a limitation period hovering over your case, best advice is to file a lawsuit to protect the case from extinguishing before attempting mediation. Though mediation as a dispute resolution process is not in itself encumbered by the statute of limitation, efforts to seek legal relief if mediation fails should of course be important to the parties; ditto for protecting the subject matter of dispute by a court injunction. It is true you can mediate and resolve any matter which is already statute barred if the opposing party does not object. But it is a dangerous way to go.
In conclusion let it be known that it is no use hoping that inadequate or misguided preparations for mediation can be rectified by bribing the mediator. The mediation process is one of a handful of processes worldwide which cannot be influenced by the presiding officer, if the opposing party knows his or her onions. Mediation operates under the shadow of law. It is erroneous to think it is a weapon to defy legal obligations.