Embracing mediation as alternative business dispute resolution instrument
When a dispute ensues in business, marriage or other social relationships and parties to the dispute choose to stand on high ‘moral’ ground, grand-stand and/or allow their ego full manifestation, litigation is almost always the immediate consideration with little or no time spared to think of the cost, the business time to be wasted and the reputational damage or risk involved.
For too long, lawyers have been telling their clients that what the law says is important in which case the courtroom becomes a destination, but experts in dispute resolution say there is an alternative to the courtroom which resolves disputes by addressing what is important to the client, and not necessarily to the law. That alternative is called mediation.
As a dispute resolution instrument, mediation enables contending parties to get on with their lives or business without a third party—judge, arbitrator or adjudicator – imposing a decision which certainly one, and possibly both parties, would be unhappy about, together with potentially devastating financial consequences of such a decision referred to as court ruling or judgment.
Disputes like miserable human conditions linger when nobody speaks to them and Osarieme Ezekiel, the managing partner of Oakwell Partners—a commercial law firm in Lagos—affirms that “dispute in business linger because parties to the dispute refuse to come together and talk”.
Ezekiel believes in mediation and negotiation especially for its benefit as an advocacy tool, explaining that her firm’s recent conference on ‘Mediation: The Modern Alternative Business Dispute Resolution’ was aimed to encourage the use of mediation for dispute resolution.
To underscore the power of mediation in rancour-free resolution of disputes, she cited the mediatory role played by Pope Francis in resolving the cold war of over 50 years between United States of America and Cuba, stressing that nothing could have been more cost-effective than that papal intervention.
Apart from creating more awareness about mediation, the well attended conference, which had Governor Akinwunmi Ambode of Lagos State as Guest of Honour, also highlighted opportunities which mediation offers such as enhancing business performance, reducing litigation liabilities and, indeed, supporting justice administration.
In addition to simplifying dispute resolution, mediation also has the capacity and benefit of freeing disputants from the apron strings of lawyers who, traditionally, benefit from a monopoly interest in representing parties in courts where they have developed a technical, professional jargon which clients do not share, having created an elitist environment in which the disputants are relegated physically to the back of the court and marginalized linguistically.
“Mediation in all its forms is a departure from this adjudicative model”, says Andrew Goodman, a Professor of Conflict Management and Dispute Resolution Studies, Rushmore University, UK.who was the Guest Speaker at the Oakwell Conference.
He maintained that mediation offers parties to a dispute control and non-lawyerly or other professional language, adding, “because it is not confined by a formal structure, the dispute process has a wider relevance and the decision is not based on rule-making since it is mediative (the collaborative working towards an agreed solution) and not arbitral (the choice between one only of two conflicting positions), in the sense that an agreed outcome is fundamental”.
An agreed outcome or the settlement of a dispute, Goodman posited, impacts upon the parties as a therapeutic reintegration of their relationship based on compromise and the readjustment of their interests through shared gains, pointing out that, basically, it is a cohesive process which draws people together as against the nature of a trial or imposed decision which pushes people apart.
“Unlike our court structure, informal mediation offers not only the promise of accessibility of language and form, but direct lay participation, privacy, no binding-outcome, and innovative, pragmatic, subject-specific solutions which can be far more practical than the law permits in court, because they have direct relevance to the wishes of the parties in running their lives, or their relationship, or their businesses, or their affairs in the future”, Goodman pointed out.
As a pace-setting state, the Lagos State government has embraced, to a large extent, this alternative dispute resolution which it practices in various ways. The governor, who was represented at the conference by Funlola Odunlanmi, the Solicitor General and Permanent Secretary, Ministry of Justice, announced that the state currently has 18 Citizens Mediation Centres with plan to have one in each of the 20 Local Government Areas and 37 local council development areas (LCDAs).
The Lagos Multi-door Courthouse (LMDC) is one such platform created by the state government for dispute resolution and, according to its Director, Caroline Etuk, “LMDC has been quite helpful as one court offering parties in dispute many doors for resolving their disputes”.
CHUKA UROKO