Mediation Processes Require Strong Legal Constructs




Last month I encountered a mediation process that was highly biased in favour of one party.

It was in the town of Arba Minch, and two youngsters in a city bar fought after much drinking. The youngsters were enjoying cold beer with their respective friends at adjacent tables. But the groups knew one another, and soon the group merged to drink together. But as it is all too familiar in Ethiopia when people drink heavily, a fight broke out.

One of them lost five teeth. As the party that lost the most, it was he that went to the local police station, where the case could end up in court. The other party wanted to avoid court procedures and tried to take the case to a traditional mediation system.

After mediators were chosen, the townspeople and the victim’s own family begged him to drop the case with the police and settle the issue out of the courts. He finally recieved some compensation but at a great loss. It was not even enough to pay the dental bills. The court procedure that was avoided would have gotten him better compensation as there were witnesses that saw he was not the one that started the fight.

This case is an indication of how traditional mediation processes can easily be biased towards individuals that have better wealth and higher social standing. It raises criticism on mediation as the right model when it comes to conflict management involving higher stakes.

Every society produces conflict management cultures. There are bound to be a complex set of words, attitudes, behaviours, customs, values, rules and ideas that influence how its members respond to conflict. Social experiences shape these.

The concept of mediation has its roots and served its purpose in ancient Ethiopian society. Traditional mediation has succeeded in finding recognition in the modern Ethiopian legal system designed around Western models. The Ethiopian mediation system serves similar purposes as the Western alternative dispute resolution movement of the 20th century.

The mediation process involves two or more clients working directly with a mediator to resolve a dispute. Mediations can take a single meeting or a series of meetings to reach an agreement. Lawyers may be present at mediation, but that is up to the clients and the mediator.

Mediation takes a facilitated conversation where the mediator uses his or her skills to help people communicate and negotiate more effectively. The mediation conversation usually contains background information to the mediator, personal perspectives on the dispute, the issues to be resolved, information about the issue, the interest of the clients, options of meeting clients’ interests, negotiating and reaching decisions.

Once an agreement is reached, the mediator prepares a mediated agreement between the parties or the paperwork that actually gets filed in court.

The mediation process might also look very different depending on the context. A case that is about to go to trial, for instance, may require a settlement mediation to be scheduled. This may involve the mediator making suggestions about how to settle a specific case. Often the clients will be in different rooms, and the mediator will go back and forth between them, with the support of lawyers involved in mediations.

Alternative dispute programs have been organised in Ethiopia with the goal of reducing strains on courts and to expedite cases and reduce the costs of litigation.

Mediation not only helps reduce cases that need to be settled in court but allows the parties to maintain control over the outcome. The agreements that are achieved in the majority of instances are acceptable to both parties.

There are indeed clear advantages to resolving disputes outside courts through mediation, but that it can have pitfalls cannot be disregarded. It puts power in the hands of the self-motivated parties looking to get their cases settled. This might fall prey to biases in society. Mediators may side with someone who is wealthier, more famous, more educated or more influential.

Legal constructs should thus be developed in cases involving heavy physical and property losses. At least the involvement of lawyers should be mandatory. And an independent body should be organised to estimate any loss in financial terms. It is about time that the legal system should make amendments when it comes to traditional mediation processes.



By Belay Abera
Belay Abera is a public health professional and researcher. He can be reached at belayab2020@gmail.com.

Published on Sep 08,2018 [ Vol 19 ,No 958]


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