The Theory of Mediation

Introduction:

This note will discuss mediation as an alternative dispute resolution process from a theoretical point of view. The note will therefore examine its meaning and general characteristics, main principles, types, how it may commence, and how it may be terminated.

Meaning of Mediation:

In Section 135 of the Alternative Dispute Resolution Act, 2010 (Act 798) , mediation is described as:

A nonbinding process under Part Two in which the parties discuss their dispute with an impartial person who assists them to reach a resolution.

Similarly, in Black’s Law Dictionary, 9 ^th ed., mediation is defined as:

A method of nonbinding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution

According to Fuller (1971), at the core of mediation is the:

Capacity to re-orientate the parties towards each other, not by imposing rules on them, but by helping them achieve a new and shared perception of their relationship.

General Characteristics of Mediation:

From the above definitions, the following characteristics may be deduced.

1. Outcome is generally non-binding:

Generally, the manner in which the dispute is resolved by an impartial third party (mediator) is not binding on the parties in dispute. This is provided in the definition of mediation in Section 135 (supra) . By “non-binding”, we mean the parties are not bound by the outcome of the mediation process.

2. The personwho resolves the dispute is a mediator:

Per Section 135 of Act 798, a mediator “includes an impartial person appointed or qualified to be appointed to assist the parties to satisfactorily resolve their dispute and employees and persons hired by that person.”

3. The mediator is neutralthird party :

A mediator, from the two definitions of mediation, is a neutral or impartial third party with whom the parties discuss their dispute for a resolution.

Main Principles of Mediation:

Here, we will discuss the main principles that underpin mediation. In doing so, we will compare it to the principles that underpin judicial adjudication.

1. Voluntariness:

Here, participation in mediation is voluntary and is neither coercive nor violent. Mediation is said to be voluntary in the following ways:

A. Freedom to decide participation in the mediation process: In Section 63(1) of Act 798, it is provided that “A party to any agreement may, with the consent of the other party, submit any dispute arising out of that agreement to mediation by an institution or a person agreed on by the parties.” In Subsection (4), it is further provided that “Mediation proceedings commence when the other party accepts the invitation for mediation.” Thus, without such acceptance, the mediation process does not commence. Subsection (7) further provides that the failure of the other party to accept the invitation within fourteen days after receipt of same, amounts to a rejection of the invitation, and the mediation cannot commence.

Section 64 of Act 798, however, makes a provision for the court before which an action is pending to refer a matter in dispute to mediation. While this, at first glance, appears to contravene the principle of voluntariness, it is still maintained that the mediation is voluntary because a party cannot be compelled to take a decision at the mediation. Thus, the parties cannot be compelled to have their dispute resolved at the mediation.

This level of voluntariness in mediation does not exist in a civil suit. In such suits, the consent of the other party is not needed before the commencement of the suit where a party with a cause of action can commence a civil action with the issue of a writ. The other party has eight days within which to enter an appearance or risk judgement being given in his absence.

B. Parties choose the mediator:

In mediation, the person that guides the disputing parties to resolve their dispute is not imposed on them, but chosen by them. This is provided for in Section 66(1) of Act 798, which reads:

The parties to a mediation may appoint any person or institution the parties consider acceptable to serve as a mediator.

This is distinguishable from a civil suit where the party only needs to issue the writ and the case is handled by a judge from the pool of judges by the court.

C. Freedom to withdraw from the process at any time before an agreement is reached:

In Section 80(1)(d) and (e) of Act 798, it is provided that:

A mediation ends when:

(d) the parties jointly address a declaration to the mediator to the effect that the mediation is terminated; or

(e) a party makes a declaration to the mediator and the other party to the effect that the mediation is terminated.

The effect of this is that the parties may either agree that the mediation process be terminated, or a party may suo moto terminate the proceedings by making a declaration to the other party and the mediation that the mediation is terminated.

This is distinguishable from civil actions. While a plaintiff may generally terminate a civil proceeding, the defendant has no such capacity. Further, there are civil actions where the leave of the court must be first sought before the termination of the action.

2. Privacy and Confidentiality:

Another key principle of mediation is privacy and confidentiality. Mediation guarantees confidentiality in the following ways:

proceedings outside the mediation proceedings.

A. Attendance at Mediation:

In Section 77 of Act 798, it is provided that

Except where the parties agree and the mediator consents, a person who is not a party to the mediation shall not attend a mediation session.

This provision ensures that third parties do not begun privy to mediation proceedings.

B. A Party Who Makes a Disclosure to the Mediator Can Request That the Information be Confidential:

In Section 78 of Act 798, it is provided that:

Except where a party gives information to the mediator subject to a condition of confidentiality , when the mediator receives factual information concerning the dispute from a party, the mediator may disclose the substance of that information to the other party in order that the other party may have the opportunity to present any explanation which that other party considers appropriate.

Thus, as a general rule, the mediator may disclose information given to him by a party to the other party for the purpose of obtaining an explanation. However, the information-giving party may request that the information be confidential.

C. Mediation Records, Reports, and Settlement Agreements Are Confidential and Cannot Be Used as Evidence in Court Proceedings:

In Section 79(1) of Act 798, it is provided that:

A record, a report, the settlement agreement , except where its disclosure is necessary for the purpose of implementation and enforcement, and other documents required in the course of mediation shall be confidential and shall not be used as evidence or be subject to discovery in any court proceedings.

Subsection (3) further provides that a party cannot use the records of the mediation and statement made therein as evidence in court proceedings. In light of the fact that court proceedings are held in public (see Order 1 Rule 2 of C.I. 47), the restrictions placed by Section 79 are to prevent mediation proceedings and records from getting into the public domain.

D. Consent of the Parties Must be Sought before the Mediator Discloses Information to a Third Party:

In Section 79(2) of Act 798, it is provided that:

A mediator shall not disclose information given in the course of the mediation to a person who is not a party to the mediation without the consent of the parties.

E. Limits on the Mediator to Act as an Arbitrator or Counsel of a Party in Respect of a Dispute that is the Subject of the Mediation Proceedings:

In Section 84 of Act 798, it is provided that:

(a) Unless otherwise agreed by the parties or required by law, (a) the mediator shall not act as an arbitrator or as a representative or counsel of a party in any arbitral or judicial proceeding in respect of a dispute that is the subject of the mediation proceedings;

(b) the mediator shall not be presented by the parties as a witness in any arbitral or judicial proceedings arising out of or in connection with the dispute mediated upon.

These limits ensure that the mediator does not use the information he acquired during mediation.

General Lack of Privacy and Confidentiality in Litigation:

In litigation, proceedings are public and can be attended by third parties. In Order 1 Rule 2(1) of the High Court Civil Procedure Rules, 2004 (C.I. 47) , it is provided that:

All proceedings of the Court including the announcement of its decision shall be held in public except as may be otherwise ordered by the Court in the interest of public morality, safety or public order.

Even when proceedings are to be held in private, subrule 3 provides that the proceedings shall be held by the judge “in the presence of only the parties, their lawyers and officers of the Court.”

3. Mediation is Conducted Without Prejudice to Parties Rights and Liabilities:

In the Course Manual on Alternative Dispute Resolution, it is explained that:

In mediation proceedings, views expressed and admissions made will have no effect unless and until the parties finally sign a mediation agreement. Unless that occurs, the parties’ rights and liabilities will remain exactly as they were before the mediation process was started and such views and admissions cannot be used to the detriment of a party. Because mediation discussions are conducted without prejudice, even if the information were to be disclosed it will have no effect at law.

Thus, parties to a mediation often begin with an understanding that they have certain rights and liabilities. Through the mediation process, they seek ways to enjoy those rights and have liabilities discharged. If the mediation process fails to do this, it does not affect their rights and liabilities.

Types or Classification of Mediation:

There are several types of mediation. However, they may be classified into the following two:

a. Facilitative or Interest-Based Mediation:

Here, the goal is to assist the parties to resolve their disputes by focusing on their interests and generating options for satisfaction of their interests. There is an avoidance of arguments and statements on what a party is legally entitled to and a focus on discourse that will promote the interests of the parties.

The goal is to create a win-win solution rather than determining who is right or wrong or determining who has what right or liability.

b. Evaluative or Rights-Based Mediation:

Here, the rights of the parties are taken into account and affect the conduct of the mediation process. Here, the mediator evaluates the rights of the parties to inform himself of what each party would have been entitled to if the matter ended up in court and uses this to provide suggestions for settlement. For instance, if the mediator takes into account the fact that a spouse in a divorce proceeding will likely get an equitable share of the property and the fact that the courts may hold that equality is equity, he may propose a 40-60 percent share of the property.

How Mediation may be Commenced:

A dispute between two parties may be submitted to mediation under any of the following circumstances:

1. Consent of the Disputing Parties to Submit Dispute to Mediation:

Section 63 of Act 798 provides that:

A party to any agreement may with the consent of the other party submit any dispute arising out of that agreement to mediation by an institution or a person agreed on by the parties.

2. Reference to Mediation by Court:

Section 64(1) of Act 798provides that:

A court before which an action is pending may at any stage in the proceedings, if it is of the view that mediation will facilitate the resolution of the matter or a part of the matter in dispute, refer the matter or that part of the matter to mediation.

3. Application to the Court to Submit the Dispute to Resolution, with the Consent of the Other Party:

Per Section 64(2) of Act 798,

A party to an action before a court may, with the agreement of the other party and at any time before final judgment is given, apply to the court on notice to have the whole action or part of the action referred to mediation.

How Mediation is Terminated:

Section 80(1) of Act 798 provides the following five grounds for the termination of mediation:

(a) the parties execute a settlement agreement;

(b) the mediator terminates the mediation proceedings for non-payment of a deposit under Section 88.

(c) the mediator after consultation with the parties makes a declaration to the effect that further mediation is not worthwhile;

(d) the parties jointly address a declaration to the mediator to the effect that the mediation is terminated; or

(e) a party makes a declaration to the mediator and the other party to the effect that the mediation is terminated.