Choosing Mediation Over Litigation: Building Bridges for Successful Conflict Resolution

Courtesy of the European Association of Lawyers

Introduction

You most certainly have heard the term mediation mentioned at some point in your life. You most certainly also have a clue of what it entails. So, defining it is not a hard task. However, when most people think of mediation, they think it’s a complex process. The first thing that comes to mind when the term mediation is mentioned is the 2007 post-election violence in Kenya when Kofi Annan sought to bring peace to the country.

If that situation is what most people associate mediation with then it would seem to be that mediation is a complex process. Most people would even assume that the process is costly. This means that most people would shy away from mediation. Taking note of this, this article seeks to explain mediation in the simplest way possible. It also answers the most frequently asked questions on mediation to help the reader fully comprehend what mediation entails.

 

1. Defining Mediation

There isn’t a universally agreed definition of mediation just like there isn’t a unanimously approved definition of what law is. However, there are several definitions of mediation which all seek to define it in the most comprehensible way possible. Mediation can be described as the process through which a third party assists disputants in working together to craft a solution that each side values. It is a continuation of the negotiation process with the aid of a third party.

 Mediation, according to Bercovitch, is a method of conflict management where conflicting parties gather to seek solutions to the conflict, with the assistance of a third party who facilitates discussion and the flow of information, aiding in the processes of reaching an agreement (Bercovitch, 2007).

 A finer definition of meditation can be found in the Civil Procedure Act of Kenya which defines mediation as, “an informal and non-adversarial process where an impartial mediator encourages and facilitates the resolution of a dispute between two or more parties, but does not include attempts made by a judge to settle a dispute within the course of judicial proceedings related thereto”. In conclusion, all these definitions agree that mediation is a negotiation process in which disputants are assisted to reach an amicable settlement by a third party known as a mediator (Kariuki Muigua, 2017).

 

2. Why Mediation is an Effective ADR Process

As mentioned earlier, mediation is a continuation of the negotiation process but with the help of a third party.  Mediation is an advancement of negotiation and as such a more effective ADR process. The mediator’s presence assists the negotiation process in the following ways:

●     Being a neutral party, the mediator helps the parties present each of their cases more effectively to the other side.

●     The mediator applies several mediation skills that enable him/her diffuse strong feelings such as anger or pride that would have otherwise stalled the negotiation process.

●     Proposals offered by the mediator can be deemed to be more attractive than an offer made by the other party. This is because arguments made by one side are automatically psychologically devalued by the other side, a process known as ‘reactive devaluation’ (Blake, Browne & Sime, 2010).

●     The mediator employs different negotiation styles and tactics that help the parties get past the deadlock created by the purely positional or competitive negotiation which eventually leads to a settlement.

●     Mediators create a balance between the different personalities and negotiating styles of the parties and minimize the pressure one party can feel when the other side exerts a confrontational, positional negotiating style (Blake, Browne & Sime, 2010).

●     A mediator encourages a detailed and honest assessment by each party of the strengths and weaknesses of their case.

●     Mediation introduces an element of detachment from the negotiation process and the mediator’s presence prevents confrontation and the immediate response that occurs in face-to-face negotiation between the parties.

●     The mediator’s attributes such as empathy, ability to listen, patience, good communication skills, and impartiality all work together to help the parties review and re-evaluate their case.

●     Mediators tend to be highly skilled at understanding the needs, interests, and positions of the parties and at guiding them toward a settlement they can live with (Blake, Browne & Sime, 2010).

 

 

3. The Informality of Mediation

Mediation has been practiced since ancient times (Kane, 2005). It is hard to trace when mediation came to life. It could be said that mediation has been there since the beginning of time. Thus, it even existed before other alternative dispute-resolution mechanisms. The informality of mediation is traced from it being a day-to-day activity.

It is a problem-solving tool that is used in many informal situations. Most people do not realize that just being impartial parties seeking to solve domestic disputes makes them mediators. The same applies to the parties who are in disagreement. The moment they let a third party help them solve the problem, they become parties to mediation.

With this in mind, it can be concluded that mediation is informal. Even with court-annexed mediation which will be discussed in the next section, the process is still informal. It may bow down to some procedural formalities but it's mostly informal. Parties should be urged to submit disputes to mediation with the mentality that it's just another domestic problem-solving process since it's not so different from the day-to-day mediation witnessed in domestic settings such as families and friendships.

 

Conclusion

Mediation distinguishes itself from other alternative dispute-resolution techniques in that it helps mend relationships. On top of that, it saves time and money. Additionally, it is an informal process that ensures the parties freely air out their issues without the threat of a binding outcome. Mediation also seeks to get to the root of the issue, which may not be the case with other ADR methods. Once the principal cause is determined, the dispute is mostly extinguished since the parties, with the help of a mediator, find a solution to the problem. It goes without saying that mediation is a very effective method of dispute resolution since the advantages outweigh the disadvantages.

 By Tiffany Mutie