It has become a routine to defend the use of mediation as the most appropriate dispute resolution in a number of matters that have been brought to my attention either as an engaged Counsel, a trainer or in popular social discuss. There are far too many people wired to fight or intimidate others that any discussion about amicable resolution is viewed either as a sign of weakness or legal ignorance. They court the company of boastful lawyers who assure that they can use their knowledge of law to alter any given set of facts. Their minds have become so diseased that they will bat no eyelid in the game of lying against an innocent soul and snatching legal victories procured in the many unconscionable ways that the DSS has by its recent descent on fraudulent judges lay bare before the public.
I know some brilliant lawyers who have stayed off litigation practice because of their inability to flow with certain undesirable courtroom practices. It is really a matter of personal emotional preferences which attune to the saying that if you cannot stand the heat get out of the kitchen. In explaining or promoting the mediation option therefore you need to be able to assure your listener that mediation is not a game for ignoramuses; that a successful outcome is as powerful as a judicial pronouncement enforceable by the courts. Though mediation lacks the verbosity sometime associated with heated courtroom advocacy, it is nonetheless deep in intellectual content and tactic which must be deployed to achieve desired outcome. Unlike litigation where the client necessarily loses control of his case to his lawyer due to the hallowed structure of court processes, the client at mediation carries his destiny in his own hands. The outcome of the mediation will largely depend on him, subject only to the professional guidance of the mediation advocate. In mediation we say that the client is the driver of the process; that he sits on the driver’s seat. I can bet, even as I write this that not many people have ever bothered to examine the import of that cliché. In giving what appears to be a well-reasoned view of that cliché within the context of our discuss, credit must go to my late mother who in my growing up years always insisted I do not seat on the front passenger seat beside the driver. Her reasoning was that whenever there was the danger of a crash, the driver who first notices and is in control of the vehicle will protect his own corner of the vehicle by subconsciously offering the front passenger side for the impact of the collision. That is why, she explained, drivers seldom die in crashes. Extrapolated to mediation practice, the client on the driver’s seat should logically do all within his means to protect himself from danger the moment he discerns one. Such is the immense power that mediation offers the disputant – a power that cannot be found in any other processes of dispute resolution.
How this power works is the next appropriate information that should interest us. We perhaps all know that unlike in litigation and arbitration where judgment can be passed on a recalcitrant respondent who fails to show up in court or tribunal after notice has been served on him, no mediation can ever proceed without the presence of any one of the parties or their assign. This is because it takes only the parties to decide on what they consider the most appropriate resolution of the issues on ground. It is the parties themselves who have the power to decide how any proposed solution sits with them irrespective of the logic behind same. This power can however be abused by a party who will benefit more from the delay a litigation process will foist on the quick dispensation of justice in the matter. And irrespective of how obvious this mischief may appear, there is no law to compel such party to abide by what is recognised as most reasonable in the circumstance.
In concluding this piece, let me say that the preference for mediation over and above other processes of dispute resolution is that inherent power of the disputants to say NO! That power adequately shields the process from every imaginable fraud or human foibles that may wrought injustice on a weaker party. It is for this reason that no party can bribe a mediator to skew the process in his or her favour. Where this occurs, all the opposing party needs do when he discovers the fraud is to say no to the settlement proposal. The ease with which people now tell lies in our polity is distressingly fast becoming a ‘’recognizable skill’’. Whenever you get squared up with such character at mediation you need not fret nor allow your emotions take the better part of you. Wait patiently to the end of the process and say no to whatever proposals thus formulated for resolution. In one word, the power to say no is the jewel in the crown of the mediation process.