For the last four years, I dedicated my life to the pursuit of knowledge in the field of dispute resolution, particularly focusing on alternative forms of dispute resolution; mediation, negotiation and arbitration. Disputes arise out of everything as long as human beings are involved. Arguably, one can say that to be human is to be in conflict. For the past decade, conflicts have become prevalent around the world. There is no region at the moment not experiencing conflict, whether violent or nonviolent. For example, we all worry about the global economy because it affects the availability of employment opportunities and our earning capacities which in turn negatively impacts global standards of living. In addition, we all worry about climate change because its effects can be felt from Turkana to Alaska. And in our worries, current and potential conflicts exist. And these conflicts cannot be resolved by hauling each other into courts rooms thus the importance of alternative means of dispute resolution. In this blog I will discuss mediation.
Mediation is a private and voluntary dispute resolution process where the parties agree that a party-chosen neutral intervenor (the mediator) will help them identify issues of concern, develop options responsive to the issues, and find a resolution acceptable to all parties (Stulberg & Love, The Middle Voice, 12). Most of us already have dispute resolution skills, which we put to use in our day to day encounters with others. However, some conflicts need the intervention of a third party who has no stake in the outcome, detached from the conflict and the parties, to help the parties in their process of arriving at an acceptable resolution.
The voluntariness of the process is that both parties must agree to invite a third party in their dispute as well us be involved in the process of arriving at the resolution which is most commonly referred to as parties’ self-determination. This means that parties are at will to reject each other’s proposal as well as the mediator’s proposal. The fundamental principle of mediation that makes it more appealing to disputants is the fact that the parties, not the third party, decides how they are will settle their dispute. Therefore, a mediator, as a neutral third party, is expected to check their ego at the door, and not conduct themselves in a manner that undermines the self determination of the parties (See Model Standards of Conduct for Mediators, August 2005).
The neutrality of the mediator places a duty on a mediator to decline a mediation if he or she believe they cannot conduct the process in an impartial manner (See Model Standards of Conduct for Mediators, August 2005). This means that the mediator must avoid conducting himself/herself in a way that raises the slight appearance of favoring one side over another. A mediator is required to develop an agenda that will guide the process but even that agenda must be acceptable to the disputants.
To be successful, a mediator must always implement these two fundamental principles. I understand it is easy to state that disputants should be allowed their freedom to decide but harder for the mediator to actually let the disputants’ preferences prevail, especially when the mediator believes he knows how to resolve the conflict. However, from my experience mediating disputes, inserting yourself in the conflict makes it even harder to resolve. Telling the disputants to limit or reconsider their preferences, is almost always perceived as an attack. I have also studied a number of mediations from the Anan led mediation in Kenya to the ongoing Moon Jae-in led mediation with North Korea. Neither was successful nor failures, but they have continued to offer a number of lessons on how undertaking the role of mediator should be approached with paying attention to the patterns of the conflicts, the parties involved and the process that will offer the parties more freedom to explore alternative solutions. In choosing the process, a mediator must evaluate each step and consider the difficulties they will encounter and must always anticipate apprehension from the disputants at every step.
Once while I was trying to convince a pair of litigants to choose to mediate their dispute, one asked me, “If mediation is as great as you say, why haven’t I heard about it?” At first, I struggled to answer him but then I realized he didn’t need a perfect answer, all he needed to know was that the process would guarantee an outcome that they both could live with. Alternative forms of dispute resolution have been around longer than litigation. However, it is only in the recent past that they began to be institutionalized thus the unfamiliarity among disputants. Therefore, a mediator/arbitrator/negotiator must first inform them that as a tool of dispute resolution, the process is designed to offer real and practical solutions. A mediator must create a rapport with the parties if he/she wants the mediation to succeed, and assuring the disputants is one of the ways he/she creates this rapport which will dictate how the parties relate to one another and how they will react to the mediator throughout the mediation.
Ultimately, a successful mediation process begins with the mediator in how he/she structures the mediation process and ends with the disputants by how they perceive the process.