January 30, 2023

Why lawyers should mediate during disputes – Osibu

By Dapo Akinrefon

A United Kingdom trained Negotiator and lawyer, Ms Racheal Osibu, has urged Nigerian legal practitioners to master the act of mediating during disputes and procedings to triumph against all tangles in the business of arbitration, dispute resolution and settlement and crisis communications.

Contributing to the discourse through an article she published titled ‘The Role of Lawyers in a Mediation Proceeding’, Osibu stated  that it is in the best interest of global peace and justice for lawyers to become Mediation Advocates.

A Member of the Chartered Institute of Arbitrators, UK and the Institute of Chartered Mediators and Conciliators, Osibu, who is the Managing Partner of Osibogun and Partners, argued that with lawyers getting more involved in mediation during proceedings and dispute settlement, it was important that they learned how best to provide support for their clients and put their clients’ case across to achieve maximum results.

She said: “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.

“Mediation Advocacy is the technique of presenting and arguing a client’s position, needs and interests in a non-adversarial way. It recognizes the following: 1) 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; 2) The parties to a dispute should control its process and its outcome; 3) The parties to a dispute should be 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; 4) Parties to a dispute should have regard to helping the opposite party secure its needs while at the same time preserving their own.

“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.

“The decision to mediate: A case is better settled early in the day; you would become indispensable to your client if you were able to achieve this. Also, the longer you wait the more parties become entrenched in their positions. Where the mediation is court mandated this would have been taken out of your hands. The decision to mediate may be at the request of your client or at your suggestion to the client. You must therefore bear in mind the following; A clear understanding of the process, what mediation actually entails, its different forms and its benefits, an understanding and appreciation of the possible outcomes to the dispute and sufficient knowledge of the strength of the case or your client’s position. An understanding of the value of the case to your client in terms of; cost efficiency, time efficiency, what the client really wants to achieve if they can and whether the remedy available from the court (even if achievable) can provide what is actually needed. You must also have adequate knowledge of; the client, the clients’ wider business affairs, any ongoing or intended ongoing relationship between the parties.

“Choosing a mediator: A lot of the time, a party may come to you after a mediator has already been appointed. But where this is not the case, it cannot be over emphasized how important choosing the mediator is. As parties will be relying on their experience and gravitas, the opportunity should not be wasted but must be given the weight that it deserves. You will be looking for a mediator with certain qualities who has the requisite qualification and continuing professional education or current accreditation from a recognized mediation training body. You need someone with a reasonable amount of experience, with some reasonable knowledge of, if not expertise in the area of dispute. The person must have the required bedside manner and patience, which are an integral part of the mediator’s skill. Someone who has innovative ideas, problem solving skills and is a good communicator, who exudes confidence, and authority.

“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.

“Peace is made by negotiating deals: normally advocates will try to pulverize each other into submission with a barrage of legal points and authorities and a fusillade of threats. When parties have exhausted themselves and move from battleground to common ground, then progress can be made. But this can be avoided if parties find common ground from the outset.

“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.

“The process of negotiation is a process of mutual recognition of reality, your own and the other person’s: to trade, clients must know what the outcome is worth to them. They must also know what the other side wants and what it is worth to them. This would be found out by trading, asking questions and listening.

“Deals are made, by listening to proposals not arguing: people argue to establish who is right but negotiate to establish what is the right thing to do. An effective negotiation would be about how to make the proposal work for both parties. Negotiating means expanding the common ground to find the proposal that sufficiently meets the goals of all the parties so that they not only agree to it but do it.

“Preparation for mediation is preparation for peace talks: the advocate must spend less time developing their best argument and finding ways to hide the weakness of their case, and more time on how to structure workable settlements.

“Negotiation leads to decision and then to action, it is not a debate or a discussion: because this is not a court where the judge decides, parties must be willing to come to decision on the issues.

“People make decisions and settlements for their own reasons not yours: people will decide to settle for their own reasons not yours. It is therefore important to spend less time trying to convince anyone that you are right and spend more time drafting or framing a proposal that would be right for both sides.

“The advocate will in be performing their role need to analyse, advise and advocate, but will also need to consider the following issues; How long to mediate; Where to mediate; Squad selection- pick a team that works, be mindful of who should attend and who must attend. Advise is always few lawyers (there shouldn’t be too many people talking); When to allow the client speak; Risk assessment which should include issues of time and cost; Have a plan- you should be ready to improvise or throw this away as the process goes on. To achieve this, you must do a map of the conflict, identify its cause or source, analyse the interests, gauge the character of the conflict, note issues of trust, observe possible impediments, survey the negotiation styles being used by the other side, identify your BATNA and finally, note the diversity; Documents – this should give a summary explanation of your points and not to overwhelm the other side. Be subtle, you are not trying to prove that you are right; you are merely putting your points across to avoid confusion.”

In her submission, the legal luminary said: “Think about all the times when cases do not settle in mediation and even in litigation when one side wins and the other loses and both sides feel like they lost. Mediation is uniquely placed to resolve this, because the issue of cases not settling is brought about by unrealistic expectations, mostly fostered by the lawyer. If the lawyers who are in a unique position to advise the clients, have a good understanding of the mediation process and how best to use it to serve their clients’ needs and interests. More cases would be settled in less time and at less cost, which is what a client wants from their lawyer. This puts the lawyer in a position where they become indispensable to their client while serving their own need to grow professionally and earn money and still help the wheel of justice move quickly and efficiently.”