RESOLVING DISPUTES FROM THE HEART: A NEUTRAL’S PERSPECTIVE
BEING TEXT OF A SPEECH PRESENTED AT THE SCMA NIGERIA MEETING ON WEDNESDAY 13TH MARCH 2013 BY MR AKIN OLAWORE FNIVS, FRICS, MAPM.
Mediation is a way of resolving disputes without dissolving relationships.Dispute is part of human existence and will always arise, but how it is resolved defines human relationships.
Rights and Privileges
A right is defined by Black’s Law Dictionary as “a power, privilege, faculty, or demand, inherent in one person and incident upon another … the powers of free action.” Please note that rights are “inherent” in a person. right is something you can do without asking for permission.
Black’s Law Dictionary also defines Priviledge as “a particular and peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantages of other citizens. An exceptional or extraordinary power or exemption.”
• All rights are derived from property;
• Every right implies a responsibility; and
• The only limitation on your rights is the equal rights of others. Your freedom to swing your arm ends where my nose begins…
Let me demonstrate the principle behind the above with an example. Suppose I walk out of my house onto my land. I can walk back and forth, back and forth, across my land anytime I want without asking anyone’s permission. Walking across my land is a right.
Now suppose I want to walk to the store located on the other side of your land. Can I walk back and forth across your land anytime I want to? Certainly not. Not without your permission. It is a privilege to walk across your land.
Assuming that we’ve been neighbors for a while, it is possible that your response would be, “Sure you can take the shortcut, Akin. What are friends for?” So on Monday, Tuesday, and Wednesday I walk to the store making my way across your land. Let us now assume that something unpleasant happens to you. You misplace a winning lottery ticket, or you missed a significant contract due to carelessness of your staff. You wake up Thursday morning in a terrible mood, looking for an opportunity to vent your frustrations. As I begin to make my way across your land you shout, “Hey, mister! Walk around! That’s what fences are for!”
The important concept here is that privileges are granted, and they can be revoked at any time for any reason. Rights and privileges are opposites.
Any time there is a dispute about rights, the argument can be settled by determining who owns the property in question?
If it is this simple, why then do we have disputes?
Disputes arise from misconception and misinterpretation of Rights and Privileges by parties in dispute but it leads to endless and most times irreversible acrimony when the process of resolving the disputes become tendentious and frustrating. One action leads to another reaction of higher gravity and the cycle continues ad infinitum. This is the unintended outcome of litigation….
Source of dispute
The source of dispute is from the inner core – FEELING which grows to THINKING and manifests as BEHAVIOUR.
Laws have been set to order behaviours; to create benchmarks and norms for acceptable behavior in every endeavour of life.
Hence in the litigation track, behaviour (in whatever form) it manifests is benchmarked in line with the letters of the law in the dispensation of justice. Equity strives to look at the thoughts and intentions of parties through their behavior before and after the act to dispense fairness…both common law and law of equity cannot see beyond the outer layer BEHAVIOUR.
Why do people sleep on their rights?
The path to justice is tortuous and recent socio-psychology findings reveal that people either sleep on their rights or abandon the fight mid stream, for all or some of the following reasons:
1. High cost of litigation
2. Frustration arising from legalese – same fact has different legal connotations and permutations
3. Strict interpretation of law and rules of court
4. Litigant cedes his right of hearing to his Counsel and remains an observer in the determination of his fate – ‘litigation client not litigating’ – Paul Newman, Senior Construction Lawyer, UK
5. Relationships are usually ruptured and innocent feathers ruffled – no two parties return from court as friends
6. Laundry bound dirty linens are most times exposed and washed in the public domain
7. Justice does not compensate, does not assuage feelings and leaves both parties still unsatisfied.
The obligation of our profession is ….to serve as healers of human conflict. To fulfil our traditional obligation means that we should provide mechanisms that can produce an acceptable result in the shortest possible time, with the least possible expense and with the minimum of stress on the participants. This is what justice is all about. —Warren Burger, A former Chief Justice of the United States of America,
“You can’t win if you go to Court. The high legal costs are part of it. Litigation is long and repetitive. The legal system is abysmal and inefficient.” – Ian Dixon, then Chairman of the Construction Industry Council, UK
The Bible says in 1Corinthians 2:11a
“For what man knows the things of a man except the spirit of the man which is in him?” NKJV
Hence Mediation is all about the PARTIES.
Path to Dispute Resolution – Alternative Dispute Resolution – Mediation
Andrew Goodman (Professor of Conflict Management and Dispute Resolution Studies) and Alastair Hammerton (Barrister at Law) in their book ‘Mediation Advocacy’ describes Mediation as a voluntary, non-binding and private dispute resolution process in which a neutral person helps the parties try to reach a negotiated settlement.
The Lagos State Government of Nigeria, by Law No 21 of 2007 enacted a Law to establish a body to be known as Lagos Multi-Door Courthouse (LMDC)…..a court connected Alternative Dispute Resolution Centre…..(S.1(2)(b)).
The law provides for the referral of cases from Courts in any part of the Federation, individuals, institutions……to the Courthouse to apply ADR to the resolution of the disputes.
The Law (s.4(1)(b)) provides that the LMDC can cause settlement or other memorandum, duly signed by disputing parties, endorsed by either an ADR judge or any other person as may be directed by the Chief Judge to become binding and enforceable by the Sheriff under ……..
With the revolutionary provisions of the Law and especially the 2013 Civil Procedures Rules of the Lagos State High Court, the State Government sought to demystify and create value for ADR process and settlement….Oftentimes, the non – binding aspect of Mediation Agreement discourages disputants to pursue that path if they do not have enough faith in the other party’s ability to honour agreements, but with the above provision, there should be no such fear.
Benefits of Mediation
– 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 or other tribunals.
– The parties to a dispute should control its process and its outcome
– The parties to a dispute should be assisted by their professionals, representatives or advisers in coming to a settlement that both deals with and address matters in issue and also meets their true needs and wider interests.
– Parties to a dispute should have regard to helping the opposite party secure its needs while at the same time preserving their own.
Litigation Vs Mediation
Should we litigate or mediate? Mediate if…..
· The parties have and want to maintain a commercial relationship
· Both parties have a mutual interest in a quick resolution of the dispute
· Both parties recognize that litigation will provide an unacceptable drain on their managerial time, be expensive, long drawn and unpredictable
· Neither party wishes to have the publicity that litigation may bring them
· The parties have come to understand that Mediation may provide them with the best option to have their day in court, a form of catharsis, yet carried out in the most cost – effective way possible
· There may be problems with witness availability or quality and the full intensity of a possible trial is best avoided
· The matter is for strict interpretation of law and not fact
· A title declaration is required
· An injunctive declaration or other mandatory or prohibitory order is required
· The case concerns criminal activity.
My Experience at the LMDCH
1. Parties are happy to be recognized especially when I sit them next to me with their counsels beside them.
2. The inner feelings of the parties are exposed and especially during the private sessions
3. Motives for the various behaviours are exposed
4. Parties tend to shift ground as soon as they are engaged privately, because at the joint session perception of the issues start to change
5. Usually, the missing cord is found….most of the time by my experience
Where a party is corporate and represented by officers of the company, Realty Testing is lost and settlements are quite difficult but l am hopeful that delay tactics and emasculation strategies applied by such parties may not be possible under the new rules.
Counsels become less officious and confrontational, they sheath the technicality sword when parties reveal their inner selves.
Counsels become willing advocates to reach a settlement, especially at the Reality testing stage, they tend to give their honest opinion to the disputant
Of course, the Mediator, must create a very relaxed and listening atmosphere to win the confidence of the parties and that means patience and availability of time.
ROLE OF ADVOCATES
An advocate is expected to play the following roles:
1. Encourage mediation
2. Prepare the party
3. Hand holding
4. Helping with Reality Testing and checks of alternative
5. Being creative in devising settlement plans.
The advocate is a partner to the Mediator. Remember the Mediator, cannot suggest but only to help negotiate settlement, but the Advocate can help to initiate settlement.
ROLE OF SCMA
1. A body for exchange of ideas
2. A body to help deepen mediation
3. Support Lagos State Government and invariably National judiciary in reducing tension in the land
4. Development and further training of mediators and advocates.
Stand up for your rights and keep your relationship….head or tail both parties will be satisfied.