Written by ‘Yemi Akisanya (CEDR Accredited Mediator, MSCMA (UK), and Principal, Adeyemi-Akisanya
More than ever before, modern companies are striving to achieve and sustain optimal economic prosperity, strongly balanced with excellent public relations, social responsibility, and environmental performance. These concerns form the core of a new trend in the practice of corporate governance, which recognizes the expediency of effective dispute resolution and conflict management. And so, these concerns have become major drivers of the policies of these companies. Part of this trend is seeing the emergence of Mediation as a key method of resolving disputes and conflicts.
Before recent times, Litigation was the main method of deciding and settling disputes when “amicable discussions” had failed, as they often do. Through Litigation, aggrieved parties obtain redress for their hurt or loss and the justice system punishes perpetrators of culpable acts; all, thanks to the power of the court to compel and enforce. This satisfies a human need to achieve vindication, often by all means. Unfortunately, it often destroys relationships, and permanently, too. In Litigation, to quote John P. Bowman, “the hands that had been clasped with each other in a warm shake, quickly don boxing gloves”. In addition, the openness of the court forum, especially in an age that cherishes freedom of information means much laundering in public, undesirably, of dirty linen. Moreover, parties themselves have minimal input in the litigation process and its outcome.
This is causing the historical bias for litigation to give way gradually under the weight of frustration at mounting costs, attendant disruption of business, and destruction of relationships, not to talk of being at the mercy of the lawyers and courts. Parties, increasingly, are electing Alternative Dispute Resolution methods like Arbitration, Mediation, and Early Neutral Evaluation, with Mediation rapidly becoming the chief choice among these consensual processes. Mediation’s major sell being the savings in time, costs, as well as the preservation of goodwill, relations, and reputation. As former US Chief Justice Warren Burger (as he then was) said in a 1977 Judges Journal, “People with problems, like people with pains, want relief, and they want it as quickly and inexpensively, as possible”. And if this writer may add, with as much privacy and confidentiality as the circumstances would permit; coupled with the fact that Mediation largely removes fault from the equation, thus enabling Parties to agree on a solution to their dispute that both can live with. After all, at the end of the day, that is what really matters.