Do Mediators Have Capacity To Do Injustice? By Valentino Buoro

I have in recent times, listened to complaints about mediators
whose bias purportedly influenced the outcome of mediation
settlement agreements in ways the complainants feel unjust. In some
other instances mediation traducers appear ready to swear to the
fact that the judicial mediation process is nothing but a waste of
precious time.

In one such allegation fired at a mediation service provider,
the author alleged strong hand tactics in billing, delays
occasioned by adjournments and concluded that the mediation process
was time wasting.

I do not doubt the fact that like every human endeavor there
will be down sides to the emergent professional practice. In one of
such experiences, an acquaintance told me how she was harassed
through a telephone call from a community mediation institution to
give up possession of her mini-flat accommodation as the landlord
was in need of its use.

She said that though she had received the invitation to attend
the mediation session, she was unable to honour the invite on that
date because her employers had declined her request for permission.
When therefore she received a call from the mediator she saw it as
an opportunity to explain her circumstances and to say that she
meant no disrespect to the process.

The mediator would however hear of no such explanations; rather
she yelled at the top of her voice asking her when exactly she
would be giving up possession of her apartment to the landlord.
What my acquaintance wanted to know from me was if it was right for
mediators to pass judgments without hearing from the other
side?

In my respectful opinion, complaints about mediation bias is
ordinarily unthinkable. Elementary knowledge of mediation already
shows that the mediator is not a Judge and so is not in any
position to impose his or her feelings or decisions on any party.
All a mediator is empowered to do is to seek to bring about an
amicable resolution of a dispute through the efficient use of his
skills.

As parties take advantage of these techniques, they must keep in
mind that their interests and those of the mediator may not be
identical. The mediator’s sole interest is to assist the parties
achieve a settlement. Though this is also the interest of parties
who come to mediation in good faith, there will always be a point
of divergence as each party desires that the terms of settlement
are more in their own favour. Where this does not occur, there is
the likelihood of bitter parties laying such blames on the
mediator.

I am persuaded by my training and experience that a mediator’s
capacity to do evil in his practice is very limited, if at all it
exists. This is because no one can give what he or she does not
possess. It is a common fact that the decision to resolve or not to
resolve a dispute at mediation is that of the parties themselves to
make. The mediator has no role or powers in this. Where therefore
the terms of a settlement, howsoever they come about, are not
favourable to any of the parties, it is the responsibility of the
unhappy party to decline acceptance.

On the other hand, it is illogical, immoral and bad faith to
gladly accept and sign terms of settlement at mediation and to turn
around a few moments later to blame the mediator for bias.

The power to say no is one key element that every user of
mediation services must hold as a shield. If you feel shortchanged,
if the mediator is unnecessarily interruptive or you feel yourself
being goaded to a certain pre-determined direction, call a halt to
the mediation, ask for an adjournment of the proceedings or simply
say No to the outcome of the entire procedure.

The aforementioned lapses or drawbacks, if provable, can only be
the result of the absence of an instructed mediation advocate or
party adviser. Those who still erroneously think they should go to
mediation without a support in the person of advocate or a lay
professional adviser should not complain if they feel overwhelmed
by the process.

In concluding this discuss, it would appear that innocuous as
this subject matter appears, it also touches on the quality control
in mediator training and recruitment. This is particularly of
importance in the areas of court-connected mediation services. In
my opinion there must be identifiable pre-training standards skill
set to be required of prospects before they are trained and
certified as mediators. The popular 40hours of training should
therefore be nothing but building upon existing professional skills
and life experiences

Training and certifying people only on academic credentials
would appear inadequate if I understand the dynamics of mediation.
Parties must be able to trust and be confident in the ability of
the mediator to assist them in the resolution of their dispute.
Talk of gravitas; talk of the mediator’s experience which is often
advised to be disclosed as part of the opening phase of
mediation.

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