Attorneys In Mediation: Prospects And Challenges – TheNigerialawyer

By Valentino-Buoro

Barely a fortnight ago, the Attorney-Mediators Association in
Nigeria organized a masterclass on Cross-Border Mediation.

The masterclass which was also open to mediators who are not
lawyers by profession, was an eye-opener and a peep into the future
of alternative dispute resolution practice in Nigeria.

Perhaps not many readers of this column know of the existence of
the Attorney-Mediators Association. The association was registered
earlier in the year to promote continuing professional development
for lawyers who have fully bought into the ADR process and have
trained as mediators.

Since coming on stream, the association has left no one in doubt
as to its determination to raise the bar in the practice of
mediation through the regular masterclasses it holds to hone the
skills of its members.

An interesting subject matter that was thrown up at the
masterclass on Cross-Border Mediation was the concept and practice
of co-mediation. Co-mediation is the process where two or more
mediators acting together as a team are assigned to resolve a
dispute. This process differs from the solo mediation practice that
we are all so familiar with. Co-mediation is considered in some
advanced mediation jurisdictions when the dispute has to do with
multi-party or complex cases, as well as cases requiring gender
balance or some technical expertise.

There are many persons who engage in mediation without the
knowledge that negotiation presents strategies that can sometimes
be deployed to overreach the other party and perhaps the mediator.
Tactics like the presence of a greater numbers of a party and his
aides in the room, playing the good cop, bad cop and sometime
distracting the attention of susceptible male opponents with
delectable female participants thrown into the mix. Though this may
be uncommon or not all in court-annexed mediation, it is
nonetheless a feature to be conscious about when you are engaged in
negotiations elsewhere.

The foregoing assertions could not have been better captured
than the following observation published in the Dispute Resolution
Reference Guide of Canada’s Department of Justice. Writing under
the subhead Dealing With Difficult or Deceptive Conduct in
negotiation, the department wrote: “At any point during
negotiations, one party may decide to use a variety of tactics in
order to obtain an advantage over another party. This behaviour can
range from pressure tactics (attempting to force a party to accept
specific terms), intimidation (implicit or explicit), deliberate
ambiguity regarding the scope of the negotiating mandate to
blatantly unethical behaviour (providing misleading or false
information, lies, etc.)’’

With the likelihood of the above scenarios playing out in some
mediation, it would appear that co-mediation provides a
countermeasure or panacea to obtaining a fairer outcome than in one
mediator sitting over the matter. Co-mediation thus provides an
extra set of eyes and ears to help resolve the dispute and also
enable the participating mediators to organize the mediation
process better. Co-mediation may also come in handy whenever the
issues at stake are of a technical nature which the lead mediator
is unfamiliar with. In some jurisdictions where only attorney
mediators are assigned court-annexed mediation, the use of
co-mediators become of importance as the attorney-mediator bridges
his technical deficiency with the presence of a co-mediator with
the relevant professional background.

Generally speaking, there are different types of co-mediation
that can be set up. The variants include peer mediation,
lead/assistant mediation and mentor/student mediation. In all of
these variants, there may be need to subtly infuse gender
sensitivity by appointing a mediator of the opposite sex to act as
co-mediator. It is perhaps important to state that whether or not
an issue is of complex nature, the cliché that two good heads are
better than one sits well with co-mediation. The type of
co-mediator that parties or the first engaged mediator may wish to
set up will be dependent on the nature of each case.

In multi-party cases with multiple issues, parties might want to
consider peer mediation or co-equal mediation, where mediators of
equal stature work together as a team. In such cases the mediators
will themselves decide on how to manage the process jointly. This
can be in the form of dividing work between them on the basis of
expertise or compatibility or even in line with cultural
disposition or other such considerations as gender.

Co-mediation also provides a veritable platform for training
mediators or growing the skills of less experienced mediators. In
this wise the lead mediator may take up the key aspects of the
mediation while the assistant observes and or watch his back to
pick up relevant cues which he would later discuss with his
superior.

In mediation, a variety of issues are usually at play. While
some of these may go unnoticed by the solo mediator without much
impact on the outcome of the session, such issues get captured by
an assistant mediator and may provide greater speed or better
outcomes for such processes.

With the seriousness with which the Attorney-Mediations
Association appears to be taking its training and retraining
programs, there are strong indications that the body will be able
to create some incentives for more lawyers to embrace the ADR
process. The upside to lawyer participation in ADR far outweighs
its downsides.