To make the decision whether or not to have a case or dispute proceed to mediation requires;
i. An understanding of the process; what mediation actually entails and its different forms.
ii. An appreciation of possible outcomes to the dispute outside a negotiated agreement.
iii. Sufficient knowledge of the strength of the legal case or of the client’s position.
iv. An understanding of the true value of the case to the client in terms of ;
a. Cost- efficiency
b. Time – efficiency
c. What the client really wants to achieve if he can
d. Whether the remedy available from the court (even if achievable) can
provide what is actually needed.
e. Adequate knowledge.
Without this information, you will not be able to assess whether the decision to permit the client to
mediate is correct.
A Mediation Advocate is tasked with the responsibility of tactical decisions in managing a claim or its defense and to also answer two basic questions;
a. Is the case suitable for mediation?
b. Is the case ripe for mediation?
To ascertain precisely when to call for Alternative Dispute Resolution (ADR), there are a number of questions a Mediation Advocate must consider and they are as follows;
Does he have enough information about the claim, its defense, any cross claim or third party
Do the parties know and understand the issues being raised by each other?
Does each party at least know its own version of the facts?
Does the Mediation Advocate have a proper understanding of the client’s needs?
Is the potential cost saving such that mediation should be attempted as early as possible- even before proceedings have been issued?
As mediation processes become more sophisticated, the Mediation Advocate must consider whether mediation is a better vehicle for settlement of issues than early neutral assessment or expert
determination or the executive mini-trial and the awareness must be there that a reference to ADR by the court does not mean mediation or bust.
Footnotes:* Standing Conference Of Mediation Advocates (SCMA) *The Lagos Multi- Door Courthouse Law (LMDC) 2007*
The LMDC Practice Direction on Mediation Procedure* The Multi Door Courthouse Code of Ethics for Mediators* Guidelines
For Enforcement Procedure *Guidelines for Court referrals to Alternative Dispute Resolution *Principles of Alternative
Dispute Resolution by Stephen J.Ware *Effective Mediation Advocacy by Andrew Goodman.*