A commercial mediation specialist and lawyer, Ms Racheal Osibu, who is a Managing Partner at Osibogun & Partners has advocated that there is a need for lawyers in Nigeria to properly master the act of mediating during disputes and proceedings in order to triumph against all tangles in the business of arbitration, dispute resolution and settlement as well as crisis communications.
Osibu, a United Kingdom trained negotiator, in an article titled “the Role of Lawyers in a Mediation Proceeding,” opined that it is in the best interest of global peace and justice for lawyers to become mediation advocates.
The member of the Chartered Institute of Arbitrators, UK and Institute of Chartered Mediators and Conciliators, argued that with lawyers getting more involved in mediation during proceedings and dispute settlement, it is important that they learn how best to provide support for their clients and put their clients’ case across to achieve maximum results.
“Mediation has been known to be a process where only the mediator and the parties are involved or participate in the proceedings depending on the style of mediation. But more and more, mediation is arising as a result of a court order/direction. What role then, does the lawyer play on behalf of the client at such court appointed mediation. Lawyers as a matter of course have to be gladiators as they fight for the rights, interest or positions of their clients. They are therefore used to acting as combatants in a field of battle and bring this same manner of approaching issues to mediation. Too often Lawyers are driven by what they think the result ought to be.
“This posture inevitably slows down the process and hinders a positive outcome or an outcome, which is beneficial to their client. Mediation is about what the results can be. Therein lies its beauty. It is a cardinal principle of mediation that it is a party driven and party centred process. Experience has however shown that lawyers end up being involved in the process as a lot of the time client’s come to mediation as a result of court directions, having already retained counsel.
“Consequently, at some point or the other, either you or your firm will be involved in mediation; the importance therefore, of lawyers understanding the process, its dynamics, and their role in it is not only necessary but also essential. There are two schools of thought on whether lawyers should participate actively in a mediation process or not. Some argue that lawyers have no business participating actively in a mediation process as they have little or no role to play while others argue that lawyers should be there to ensure that the client is not taken advantage of, which inadvertently means being actively involved. The later position is said to defeat the purpose of mediation as lawyers come to mediation with an adversarial mindset, which may sometimes serve them in litigation but can clog the wheel of progress in a mediation setting. Thus, lawyers are enjoined to be mediation advocates.
“With lawyers getting more involved, it has become expedient that they learn how best to provide support for their clients and put their clients’ case across to achieve maximum results. This way, counsel in such matters act as lubricants rather than obstacles to achieving accord between parties,” she said.
According to her, mediation advocacy is the technique of presenting and arguing a client’s position, needs and interests in a non-adversarial way as it recognises the negotiated outcome to a dispute is usually more satisfying, more effective, more workable, more flexible and more durable than an order imposed by a court, tribunal or third party and the parties to a dispute should control its process and its outcome while being assisted by their professional representatives or advisers in coming to a settlement that both deals with all matters in issue and also meets their true needs and wider interest.
She added that “the lawyer who is going into a mediation process or has accepted mediation as a way to resolve the clients’ dispute must have respect for the process and be willing to learn what is required if they are not familiar with it. Certain issues must be borne in mind; Is mediation appropriate for the dispute at hand: for instance, mediation would not be appropriate in a matter regarding the interpretation of the constitution. You must also bear in mind the merits and demerits of the case, whether the timing is appropriate and whether the cost would be disproportionately high especially if other methods of dispute resolution have been attempted, and the chances of success.
“In addition to the above, there are also certain core principles that cannot be over emphasized. This must be foremost in the mind of such an advocate. They are: Mediation is for peace-making not war: if parties want to fight, the court is available. Mediation is not a pseudo court and therefore requires a different mindset and skill set. Not every negotiation is a mediation but every mediation is a negotiation: in a mediation, different negotiations take place as between the parties through the negotiator, each party with the mediator, the parties with each other and the mediator and between the parties without the mediator,” she explained.
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