By Joy DaphineNdegemo
Mediationas a dispute resolution mechanism is not a new concept in traditional Ugandanand African society. It has been a customary mechanism where our elders mediateddisputes using procedures acceptable to the local community and parties wereencouraged to present their cases in a very simplistic manner, until theintroduction of the modern adversarial justice system. The introduction ofmediation in the Courts of Judicature 2013 (and specifically the CommercialCourt Division) was expected to help in swiftly settling cases and solve casebacklog. Mediation is now available countrywide in the courts and not justthe Commercial Court where it started on pilot.
Theoption of using Mediationin courts of law is however, said to be taken less seriously, with lesspreparation for mediation sessions being done compared with actual litigation. Partiesare said to not have fully appreciated the benefits of mediation because theperpetrators for making it a compulsory part of litigation provided not muchsensitization on procedure.So, parties rely on their lawyer’s adviceand in most cases, they will likely be advised not to settle andwill report back in court saying mediation failed, without any effort to makeit work. Sometimes,parties “game” the mediation process, too often using it as justanother arena for manipulative, postured, or other disingenuous behaviors, andfor ulterior purposes such as cheap discovery, to cause delay, to harass orimpose expense burdens on an opponent, etc.
We alsomight acknowledge that sometimes parties fear that they will be diminished by asettlement, that a compromise agreement will feel like (or be perceived byothers as) a failure, or an abandonment of principles, or a partial or obliqueadmission of fault. It is understandable that parties with these fears mightwant to place the responsibility or blame for agreeing to a proposed settlementon someone else. Such parties sense (perhaps only pithily consciously) thatthey are surrendering to someone else a responsibility that only they shouldassume-and that knowledge reduces their self-regard even more. Competitionappears to be a fundamental fact of our existence-a product of a survivalinstinct that may be as ineradicable as breathing. So, it is likely that theadversary system is a reflection, rather than the ultimate source, of drivesthat are in some sense intrinsic to the human condition.
Mediation should however not be seenas being forcefully imposed on parties by the Rules of Court where partiesattend out of procedural obligation and fear of paying costs fornon-attendance. Warring parties should not be led to believe that this optionis out of compulsion by Court but should freely appreciate the benefits thatcome with it. As Jon Lang, a practicing mediator, rightly argues, it is humannature to reject any form of compulsion. Otherwise forcing reluctant parties to mediate, may well end up with a processcharacterized by stage-managed and doomed mediations.
What then is mediation, and what isthe role of a mediator in ensuring a successful mediation, especially whereparties are either ignorant of the process or just disinterested; I might add,what constitutes a successful mediation?
Mediation,as used in the legal context, has a set of characteristics that transfer verywell into the intra-organizational context. The mediation process is private,voluntary, informal, and non-binding as the procedure does not allow themediator to impose a settlement. Instead, the mediator, who is usually aneutral, works with the disputing parties to help them negotiate a satisfactorysettlement. Mind you, settling does not necessarily mean winning; it is theability to make peace with a situation in an agreeable manner, given thecircumstances.
Therole of a mediator is to help. That said, however, the real success or failureof a mediation is three-quarters of the time dependent on the attitude of parties.Disputants who focus on reducing negative emotions and willing to receive thathelp build trust with the mediator and are likely to settle, as opposed tosearching for contention. The communication of respect acknowledges the other’ssense of dignity and generates positive sentiments. As a general proposition,the more confidence the parties have in the integrity of the process, the moreconfident they are likely to feel that the process:(1) has yielded importantinformation about the parties’ circumstances, (2) has produced an analysis thatis as reliable as possible, and (3) has accurately identified what terms ofsettlement might be available. If onecomes out of obligation, then they will probably gain nothing because it is forthe wrong reasons they are in that room; Also, coming with a rigid mindset andunwillingness to listen is wasting precious time for oneself and for the peoplethat have volunteered to come and listen to you. That said, Mediatorscan make a call to parties to always consult with their lawyers about tryingmediation with the help of Court before going through hard and expensivelitigation in the same Courts.
The biggest cause ofconflict is miscommunication. We fight each other from the safe distance of ourseparate islands of ideology and identity and listen intently to echoes ofourselves. We take exaggerated and histrionic offense to whatever is said aboutus. We banish entire lines of thought and attempt to excommunicate all mannerof people without giving them so much as a cursory hearing. Here, and perhaps elsewhere, something morefundamental has to happen for people to let go of their anger and pain.
Escalated conflictis, I contend, a form of confusion. When in a mediation session, differentsides of the same story, or different stories of the same relationship orevents are told. And nearly every time, each side’s emotions are completelyplausible, and yet the two-people telling me their stories are sometimes soangry and hurt by each other that they cannot “see the confused human being”that they in fact both are. When parties are hurt, they see each otherprimarily as the inflictors of that pain.Sometimes ask yourself if your anger makes you any happier, or your life morefulfilling or if it is healthy for you to stay so angry, or so bitter.
Mediation is aboutrestoring relationships and bringing emotional reconciliation. It has the capacity to re orientparties towards each other not by imposing rules on them, but by helping themto achieve a new and shared perception of their relationship, a perception thatwill redirect their attitudes and dispositions to each other. Morebusinesses opt for mediation because of the need to protect their businesscontacts, reputations and interests rather than sever them through exploringlengthy and embarrassing litigation. Mediation is also useful internationally and domestically,court related or not, to build peace, to promote collaboration and dialogue,for reasons that include prevention, transformation, management or resolutionof conflict. I have seen cases in court thrown out on a mere legaltechnicality (sometimes called a preliminary objection). This does not takeaway the resentment the parties have for each other it only accelerates anger,spite, bitterness, and needless to say, lots of drama and sometimes egos atplay. Litigated emotions predict an unreconciled future.
Anotherperk of mediation is that the parties play the central roles because theprincipal energy that runs the process will come from the parties, not us. Onesuch benefit, which can be highly valued by both lawyers and litigants, butwhich is not captured in any of our questions about”accomplishments,” is feeling centered in the decision to proceedwith the litigation. A well-handled mediation teaches the parties a lot abouthow the two sides view the merits of the case and exposes, more reliably thanany other mechanism, what the best terms are that could be achieved in asettlement agreement. A party who reliably knows her or his bottom line or bestalternative before going forward with the litigation, and which line ofreasoning supports her or his opponent’s position, is much more likely to feelwell-grounded in a decision to litigate and much less likely to blame eitherher lawyer or the legal system for her fate. Understanding why she feelsconstrained to proceed with the litigation, she also is less likely to resentand more likely to pay the bills her lawyer sends her.
One person may say, “But why would the parties use mediation,why wouldn’t they just deal with the conflict themselves? That is what I do,and I never needed a mediator.” In mediation, parties develop not only the outcomes,but also the process, and informed decision making requires the parties’ accessto trusted and competent advice, including legal advice. Sometimes, they needtheir own advisors and sometimes, in addition to their own advisors, theydevelop joint fact-finding processes to access independent advice that couldbuild their trust in the advice through a transparent process developed, managedand owned by all parties.
As noted earlier, mediation is usually more about understanding where the disagreement is and working on amicably resolving it so as to maintain relationships, than winning and losing. What else might we do to reduce the demoralization that is likely to follow a mediation that yields no settlement? For starters,we can remind ourselves that, in most mediations, even when no settlement was achieved, the parties feel that the process delivered net value to them. The data our Court collects about the mediations it sponsors, for example, indicate that, while about 60% of the cases settle through our mediations, some 80% of the parties and lawyers believe that overall, the benefits of being involved in the mediation process outweigh the costs.
In a nutshell,mediation could be useful for all sorts or reasons: in complex cases, with multiple parties, or when communication needs improvements, or when consensus is preferable over alternative routes that otherwise may involve authorities,when parties value their relationship and would like to protect it, when it is just less time and cost effective to settle, and so on. Sometimes you need approval that you are right, or even if you are not right, you need someone to justify your wrongness. Would you rather have someone not only say that you are wrong but that you are so wrong that you have to pay the other party for the time wasted litigating this matter. Or would you rather understand why you are wrong and amicably agree that some sort of agreeable redress will be addressed, by the both of you.