Mediation As A Football Game By Valentino Buoro – TheNigerialawyer

As I write this piece, I am not unaware of the different things
it might mean to different people. Some with their noses in the air
may see me as making light of a serious professional development.
While I appreciate this, I suppose and do know as of fact that I am
making a contribution which shall trigger a discuss that would
attach to me for good or for ill.

Let me begin with a caveat. I am not a football fan. Indeed I am
‘hopelessly’ so bad in the issues of football that unlike the
average Nigerian male and indeed females now, I can count on my
fingertips the number of times I have watched any football match
from the beginning to end.

The foregoing notwithstanding, I have by inspiration found out
that there can be no better way of explaining the roles of a lawyer
in mediation than through the football analogy which I desire to
entitle “The Mediation-Football Analogy’’

And to further put all of these in perspectives, let me also say
that this piece is targeted at my colleagues in the legal
profession who worry endlessly as to the functional role of lawyers
in a process that gives pre-eminence to parties in the dispute
rather than to their legal representatives. This question is thrown
at me over and again as a mediation advocacy trainer.

Unlike the lawyer in litigation on whom all attention is
focused, the lawyer in mediation is but a member of a strategy team
which has the disputant as the key participant. The lawyer has no
place in the process to showcase his erudition or learning. He
cannot be heard to determine the outcome of the process, based on
the legal strength of his client’s case. The Mediator as
facilitator of the process focuses his attention and listening ear
more to the disputants rather Counsel. A few Mediators handle this
so badly as to make the lawyer feel unwanted. Some Counsel who
react badly to the body language or direct attitude of such
Mediator may become combative or become so disinterested in the
whole process that in one or two cases, dozed off.

I have heard Mediators tell stories of how they sent off Counsel
from mediation sessions because they have become disruptive. While
I concede that the Mediator is the supervisor of the process and
may take whatever steps he or she deems best to achieve a seamless
process, I hold the view that this scenario may not arise if the
Mediator skillfully manages the legal context of mediation and the
due regard to Counsel. The outcome or stories of these incidents
quite often make clients unable to appreciate the great role of
counsel and to pay their fees appropriately.

To underscore the importance of lawyers in a mediation session,
it is important to draw the following analogy. Imagine for one
moment that a mediation session is a football match between two
opposing teams. The Mediator is the Referee; the disputants are the
footballers and the lawyers are the football coaches of the
respective sides. Just like the Referee focuses his attention on
the footballers in the field of play rather than their coaches, so
is the attention of the Mediator focused on the disputants in the
mediation session rather than their Lawyers.

The Mediator has no interest in the outcome of the mediation
just as the Referee has no interest in whichever of the two teams
wins the match. But like the Referee, the Mediator must keenly
watch and facilitate the disputants’ negotiations, just as the
Referee watches the footballers at play with a view to reining them
in to keep to the rules.

At the field of play some coaches may be found to be very active
on the sidelines yelling instructions to the footballers. What the
footballers do with that real time instruction is left to their
discretion and personal skills.

In like manner, the lawyer at mediation seats after his client
who sits closer to the mediator. Since the client does much of the
talking and taking decisions, the lawyer who sits by his side may
only whisper guide and perspectives to him while the mediation is
in session. It is left to the discretion of the disputant at that
point to use the information passed to him or to discard them. This
will depend on the intelligence and versatility of the client.

No coach dons the jersey of his club side to score a ball for
his employers. So also should no mediation lawyer be expected to
make settlement decisions for his client. The true worth of a coach
is exhibited in the workouts and pre-match reading of the other
side’s style of play and how to demolish these. In like manner the
true worth of a mediation lawyer is his ability to groom his
clients prior to the mediation session. He should be able forecast
what is of importance to the other side and how these would best be
negotiated. If the engagement and handsome pay of a coach is a sine
qua non to the performance of a good team, the engagement of an
adequately remunerated mediation lawyer is imperative for a
beneficial outcome at mediation.

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