Mediation as a Solution for Disputes

I had the opportunity to attend parts of the Asian Mediation Association Conference that just finished today. Mediation and its close cousin arbitration, while long established in most countries' statutes, are processes of resolving disputes through an independent third party (or parties). In some jurisdictions such as Florida, all lawsuits are required to go through a mediation process before going to trial. Arbitration is binding, whereas mediation may not necessarily be binding, but in order for both parties to agree to a resolution, it must take both sides' interests into account.

This has potentially large benefits for the parties involved - avoiding lengthy, costly civil suits, a commitment to finding a resolution and most importantly, addressing the issues in a non-confrontational manner. Unlike litigation that may be acrimonious and result in irreparable damage in the relations of both parties, mediation "increases access to justice by mitigating the costs and risks involved in litigation and arbitration." The important point is that the parties commit to finding a resolution.

In Singapore, a recent survey showed 81 percent of parties found they had saved costs and 85 percent reported saving time. Most importantly, 93 percent of parties and 98 percent of lawyers said they would recommend the use of mediation for similar situations (data and quote excerpted from the speech by Singapore Minister for Law, Mr K Shanmugam, at the opening of the Conference). Mediation is clearly a growth area even in mature jurisdictions.

In Africa, many courts have notorious backlogs and heavy caseloads - just getting a date in court can take months, and the uncertainty can put heavy burdens on the parties in a zero-sum game. For small businesses, this can be deadly.

My fiancee, a lawyer, related how her clients were amazed at how quickly their cases could be processed under mediation processes. A more tragic incident involved an ethnic dispute in refugee camps that resulted in fatal violence over a marriage between different tribes over a cultural misunderstanding. A lot of these problems could be avoided, and lawyers should not be threatened that mediation will take away from their business - they should work to improving the legal environment that will allow them to demonstrate their value to their clients through a variety of instruments.

It's not just businesses that can make use of mediation. The kind of small-scale conflicts that create instability and leave long memories that may later be used to fuel organised violence may often be well-suited to mediation processes. By choosing acceptable independent third parties who may be better in tune with the cultural nuances of a dispute than the courts, the parties have a chance to own the resolution and work amicably to resolve the disputes before they escalate. Moreover, there is a unique opportunity to strengthen traditional institutions that have been marginalised by formal legal mechanisms.

Strengthening the rule of law isn't just about putting up new legislation, some of which may never be enforced or which becomes notoriously convoluted as it attempts to take into account all possible nuances and cultural difference. Part of strengthening the rule of law also includes providing effective, proven alternatives to accessing justice. When traditional institutions have been marginalised and formal institutions are notoriously inefficient, then parties should look towards processes that are effective and consistent with their cultural backgrounds.

Hopefully, we'll see more of the use of mediation to resolve disputes in Africa.