MEDIATION ADVOCACY by Durodoluwa Femi-Ajala

This concept may though sound strange, yet is a growing cause in the world of mediation. Some people may have never heard of either term, while to others it just may be familiar. What then is its importance, in the course of this, I shall seek to make my readers more aware about this concept and many things pertaining therein.

What then is Mediation Advocacy? To know this, is to first understand what each term means. Well according to the norm, Mediation is the interference of a third, neutral party in a conflict arising between two or more parties, for the purpose of settling the dispute, through suitable skills. It can also be a process referred to as ADR – Alternative Dispute Resolution. While Advocacy, is the belief and active support in a cause or ideology. From these two then flows the concept, which we seek to understand.

Mediation Advocacy can then be described as a process, whereby those involved in mediation are knowledgeable about the system, what it seeks to achieve, through proper enlightenment and skills employed. A tactical approach by all parties involved in the process is required, starting from the judges, who refer the cases to mediation, the clients and counsels who are forced there or even do so on their own volition, the mediator, who helps to reconcile the parties, to finally, the system which manages it.

Why Mediation advocacy?

The requirement for this is because usually when cases are referred by the courts, the clients and counsels to them are normally antagonistic to the process, mostly because the counsel feels that his role would be undermined, and his wages reduced, and therefore sees this, as a means to litigation, which is his end-result. Though other times, genuine concerns that his client may not fully be represented can be the issue, but most often than not, it’s more of a self-concern. However, to ensure a fruitful outcome, there should be a preparation stage, which would usually come before the commencement of mediation, to educate them on the rules, principles guiding them and the benefits, importance therein to guarantee their rights. Also, during the mediation process, if counsels begin to be a hindrance to its furtherance, sound caution must be issued to the person, when this does not suffice, a report should be made to the judge that referred them. Finally, the use of adequate skill and care must be utilized by the mediator when dealing with parties to get the best results. Skills like impartiality, knowledge of the case at hand, persuasiveness, a good rapport to all, flexibility, (which includes knowing the peculiarities involved in the case and use appropriate means, which may be non-conventional, in handling it). Also, a good negotiation skill and most especially, approaching mediation from a non-adversarial perspective, which goes for the counsels, in pleading their client’s case.

Who are mediation advocates?

It is finally to be noted and re-emphasized, that mediation advocacy is not only limited to the mediators or judges who refer the cases there, having a confidence to do so or are required by law of their state, for example Order 3, Rule 2(1)(e) of the High Court of Lagos State (Civil Procedure) Rules 2012 requires that a Pre-action Protocol Form 01 must be submitted as part of the documents to institute an action in court, it shows that parties have tried out-of-court settlement, but to no avail. Also, Order 25 Rule 2(1) of the same law, empowers the court during a stage before the trial, known as case management conference, to refer the parties to Lagos Multi-Door Courthouse or any other similar body. Also to the counsels, who having understood this concept can successfully negotiate a deal that may never have been possible through litigation. Let’s not forget that each and every one of us must have conducted in a mediation process before consciously or unconsciously in our day to day affairs. So you too can be mediation advocates.

In conclusion, mediation or rather any ADR mechanisms should not be seen as a means to getting to litigation but as such that gets a client the best deal possible through skilled negotiations and understanding of the process, which in addition saves time and money for the clients, but how can these be known, except through its advocacy.

Duro is currently the Welfare Secretary of the ADR Society, Unilag and a 300 level law student. You will also find her volunteering for causes which seeks to advance the society.