Section 91 of the Arbitration and Mediation Act, 2023, defines mediation as “a process, whether referred to by the expression mediation, conciliation or an expression of similar import, where parties request a third person (“the mediator”) to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship, but the mediator does not have the authority to impose upon the parties a solution to the dispute.”
What Makes Mediation Unique?
Mediation is a voluntary and confidential process that allows parties to clarify issues, develop mutually acceptable options, and work toward a sustainable resolution. Unlike arbitration or litigation, mediation emphasizes collaboration. Mediators facilitate discussions without suggesting outcomes or imposing decisions, encouraging the parties to take ownership of the solutions they create.
Mediation vs. Other ADR Mechanisms
Mediation stands apart due to its approach and methodology:
- Arbitration functions similarly to formal judicial proceedings, with arbitrators issuing binding awards.
- Conciliation may be integrated into judicial processes.
- Mediation, however, requires a completely different approach. Mediators rely on skills such as active listening, empathy, and neutrality, fostering a cooperative and solution-oriented environment rather than one based on judgment or legal reasoning.
Key Features of Mediation Include:
- Neutrality: Mediators refrain from judging the parties or providing advice, ensuring that the process remains fair and balanced.
- Flexibility: Parties can tailor the process to suit their needs, from selecting mediators to determining the scope of discussions.
- Creativity: Parties collaborate to design innovative solutions that address their unique concerns.
- Sustainability: When parties collaboratively resolve their disputes, the solutions are more likely to endure because they are mutually agreed upon.
- Party autonomy: Parties retain full control, including the ability to terminate the process at any stage.
Why Mediation Stands Out
Mediation is considered one of the most effective alternative dispute resolution (ADR) mechanisms for several reasons:
- It promotes collaboration and preserves relationships.
- It is cost-effective and quicker than litigation or arbitration.
- It empowers parties to maintain control over the outcomes, fostering satisfaction and compliance.
However, the suitability of mediation—or any ADR mechanism—depends on the nature of the dispute and the preferences of the parties. For conflicts requiring binding decisions, arbitration or litigation may be preferable. On the other hand, mediation excels in situations where cooperation, creativity, and confidentiality are paramount.
In essence, mediation represents a shift toward resolving disputes with empathy, neutrality, and sustainability, making it an invaluable tool in the ADR landscape.
Source: BarristerNG
