Topic: Mediation Skills and Its Relevance in Human Rights Charles Ohene -Amoh University Of Education, Winneba Faculty of Social Sciences Department Of Social Studies INTRODUCTION As men live together in the social environment, there is bound to be conflict among individuals and groups. There are a number of different causes of conflict; however, these can largely be classified under a limited number of headings, namely land disputes, politics, religious and cultural differences and Rights-based grievances (Barash et al, 2002). A dispute begins when one person or group makes a claim or demand on another who rejects it. These matters are central to human social existence and therefore anytime conflicts occur it must be resolved as quick as possible. One way to resolve disputes is to rely on Alternative Dispute Resolution (ADR) techniques. Among the popular ADR methods are negotiation, mediation, arbitration and conciliation. In this presentation mediation will be considered. It is paramount to note that mediation is more often than not resort to when negotiation fails to produce a satisfying result to the disputing parties, because mediation has a structure and features that ordinary negotiation lacks. Areas to cover under this study are: Definition of Mediation, Salient Features of Mediation, Qualities of a good mediator, Cases that can be resolved through mediation, The Mediation Process and Follow-ups, Merits and demerits of mediation, the relevance of mediation in human rights and a conclusion DEFINITION OF MEDIATION According Baron, et al (1986) mediation is an informal way of settling dispute without relying on a legal judgment issued by a judge or jury. Mediation broadly refers to any instance in which a third party helps others reach agreement. Wikipedia (2013) explains mediation as a process in which two people meet out of court to resolve their argument with the help of a third neutral person, called the mediator. Mediation therefore is one of the alternative dispute resolution options, which provide other ways for disputants to resolve cases with the help of a third party instead of going to court. The parties involved in mediation meet with a neutral third party to reach a mutually agreeable solution that will end a conflict or misunderstanding. SALIENT FEATURES OF MEDIATION Marsh (1997a) identified five elements of a successful mediation process which forms its salient features: Mediation is a non-binding A party to mediation cannot be forced to accept an outcome that he does not like. Unlike an arbitrator or a judge, the mediator is not a decision-maker. The mediator's role is, rather, to assist the parties in reaching a settlement of the dispute. Even when the parties have agreed to submit a dispute to mediation, they are free to abandon the process at any time after the first meeting if they find that its continuation does not meet their interests. Although mediation may be imposed on disputants, mediation is a voluntary process. Additionally, upon commencement of the process, there is no obligation whatsoever on any party to continue the process to the point of resolution and finality. The decision to terminate does not need to be by agreement but can be made unilaterally. Neutral third party facilitator There must be an impartial third party facilitator who helps the parties explore the alternatives and find a satisfactory resolution to the conflict. Mediators are advocates for the process of mediation rather than advocates for either party. The neutrality of the mediator is a hallmark of the mediation process. The mediator to a dispute should not have any vested interest in the subject matter under discussion nor should the mediator have a vested interest in the outcome of the dispute. Overman, (1992) added that the mediator should not have established any prior relationship with any of the parties to the mediation and where relationship has been established, it is essential that there is transparency and prior disclosure to the other parties to ensure that the parties have no objection to the mediator’s continued involvement in the process. Confidential procedure In mediation, the parties cannot be compelled to disclose information that they prefer to keep confidential. If, in order to promote resolution of the dispute, a party chooses to disclose confidential information or make admissions, that information cannot, under the Mediation Rules, be provided to anyone - including in subsequent court litigation or arbitration - outside the context of the mediation. The news media is not allowed into a mediation room. Overman (1992) contributed that, the mediator must protect the integrity of the proceedings by setting ground rules that all parties must follow, which includes the confidentiality of the proceedings. Interest-based procedure In court litigation or arbitration, the outcome of a case is determined by the facts of the dispute and the applicable law. In mediation, the parties can also be guided by their interest like business interests. As such, the parties are free to choose an outcome that is oriented as much to the future of their business relationship. When the parties refer to their interests and engage in dialogue, mediation often results in a settlement that creates more value than would have been created if the underlying dispute had not occurred. Because mediation is non-binding and confidential, it involves minimal risk for the parties and generates significant benefits. Even when a settlement is not achieved, mediation never fails, as it causes the parties to define the facts and issues of the dispute, to prepare the ground for subsequent arbitration or court proceedings. Neutral location Mediation takes place in an appropriate neutral location determined by the disputing parties, so that both sides will feel relaxed and the process will be less intimidating. The very presence of a mediator in a neutral location can signal to the parties that the case will be settled as fairly as possible (Marsh 1997b). QUALITIES OF A MEDIATOR A mediator is very important in any mediation process. It is therefore very vital for such a person to possess some special qualities that will make the work easy. Below are some of the qualities that a good mediator must possess. Neutrality Neutrality is that overt act or those overt acts of a mediator, which give reason to the parties to believe that they can continue to have faith in him. The faith reposed by the parties in the mediator at the time of his appointment needs to be maintained not only till the entire proceeding is over but also thereafter. This faith should not only exist at a particular time but also seen to be existing all the time (Overman, 1992). A good mediator should never give an impression that he is in favour of any of the parties. His conduct should reflect that he is paying equal respect to both parties; he is not extraordinarily respectful to one of the parties; he is not extraordinarily chatty with one of the parties and so on. This neutrality should get reflected not just inside the mediation room but also outside. It is the neutrality, which reinforces trust. Confidentiality One of the reasons why parties opt for mediation is that they do not either want to wash dirty linen in public or if it is a trade dispute they don’t want others to know their trade secrets or they know that adjudication of dispute in the open forums like court may lead to making their financial condition public. The parties to the dispute approach the mediator with the hope that whatever would come to the knowledge of mediator during the proceedings will remain with him only (Meierding, 1993). For instance, if a matrimonial case is filed in court, there could be an outbreak of allegations from both sides against each other. Both parties go out of their way to shame each other. The result is multiplicity of cases between the parties, reaching the point of no return, making the conciliation between the parties next to impossible. The allegations made in mediation proceedings are sometimes very serious and confidential (Slaikeu, 1989). A good mediator keeps these allegations to himself, refrains from conveying them to the other party unless extremely necessary. In case he realizes that it requires to be conveyed outside, he would suitably tone down these allegations. The parties reveal a lot of personal details to the mediator in confidence that they will not be shared with not just the other party but also with no one else. Patient Listener A good mediator must be able to listen to the parties patiently. When parties walk into mediation they carry a lot of emotional baggage. They look for an opportunity to offload that from their chest. They look for an opportunity that some one hears them. Most of the time courts do not have the time to hear the parties. Courts look for solutions in terms of law and not emotions. It is also true that most at times; it is the lawyers who are heard by the court not the parties to the dispute (Overman, 1992). Mediation offers them this opportunity to disputing parties. Once a party goes with a feeling that he has been heard to his satisfaction then a mediator may consider he has won half of the battle. In case a party gets a feeling that he has not been heard, the mediator should consider that he has lost half of the battle even before the start. Look dignified and dress appropriately It is the appearance of the mediator, which conveys the first impression to the parties. They should have a feeling that they are dealing with a person who is here to do business. He is serious about his job. If the conduct of the mediator is not dignified he is not likely to earn the respect of the parties (Meierding, 1993). It is the respect for the mediator, which builds the trust of the parties in him or her. Dressing well is another aspect of looking dignified. The mediator however, needs to be careful that he is not overdressed as overdressing itself creates barriers of its own in the effective flow of information between the mediator and the parties. Knowledgeable There can be situations like in the case of community mediations where adequate knowledge about the issues at hand makes the work of the mediator very easy. It is not sufficient that mediator understand the legitimate concerns of the parties but also the culture of the community. The mediator must have much knowledge about the issue he is going to mediate. He must be abreast with the culture of the parties and use appropriate adages and proverbs when necessary (Marsh, 1997a). Sometimes it is also necessary that he should have some legal background or exposure. Once the negotiations are over a mediator is required to help the parties draw the terms of settlement. These settlements should be such that they would not contradict the law of the land. This can only be achieved if the mediator has the knowledge of the subject matter of the dispute and the law related to it (Overman, 1992). There can be co-mediation in a case, in this, two mediators with different expertise work together to resolve a case. In divorce mediation, for example, a lawyer with family law expertise may co-mediate with a family counselor to resolve the case. Realistic and Optimism Mediation looks for realistic solutions, therefore a good mediator should be a realist and optimist. In the general sense of the word optimism would mean giving hope for a solution even where the chances of its success are very dim (McKay, 1985). Optimism for a mediator is not something, which comes from any thought process devoid of reality. His optimism is not a result of any religious belief that ultimately faith in God will prevail and everything will turn out to be well. His optimism is a reflection of his attitude that in the given facts of the case he will be able to find creative solutions acceptable to both the parties to the dispute (Van, et al, 1992). CASES THAT CAN BE MEDIATED Mediation could be used to resolve most non-criminal matters and torts. However, some nonviolent criminal cases, like those involving verbal harassment, could also be resolved successfully through mediation. Claims that do not involve a legal issue are also good candidates for mediation. For example, a dispute with a neighbor over encroachment of land or landlord – tenant conflicts are types of claim that merits mediation. In this type of situation, it may be wise initially to try negotiation, if it does not work; one may seek mediation to end the conflict than to go to court (Marsh, 1997a). In Ghana, the Commission on Human Rights and Administrative Justice has used mediation to resolve cases often involve conflict arising in divorce and child custody issues and in disputes between family members, neighbors, business partners, landlords and tenants, and labour unions and management. In some jurisdictions, mediation is mandatory when it involves child custody issues and disagreements with neighbors. TYPES OF MEDIATION According to Meierding, (1993), in the 1960's and 1970's, there was only one type of mediation being taught and practiced, which is now being called Facilitative Mediation, currently there are three types, the other types are evaluative and transformative mediation. Facilitative Mediation In facilitative mediation, the mediator structures a process to assist the parties in reaching a mutually agreeable resolution. The mediator asks questions; validates and normalizes parties' points of view; searches for interests underneath the positions taken by parties; and assists the parties in finding and analyzing options for resolution (Meierding, 1993). The facilitative mediator does not make recommendations to the parties, give his or her own advice or opinion as to the outcome of the case, or predict what a court would do in the case. The mediator is in charge of the process, while the parties are in charge of the outcome. Evaluative Mediation Evaluative mediation is a process modeled on settlement conferences held by judges. An evaluative mediator assists the parties in reaching resolution by pointing out the weaknesses of their cases, and predicting what a judge or magistrate would be likely to do. An evaluative mediator might make formal or informal recommendations to the parties as to the outcome of the issues. Evaluative mediators are concerned with the legal rights of the parties rather than needs and interests, and evaluate based on legal concepts of fairness. Evaluative mediation emerged in court-mandated or court-referred mediation (Meierding, 1993). Lawyers of the disputing parties normally work with the court to choose the mediator, and are active participants in the mediation. In this, the mediator works to find points of agreement between the parties, in an effort to reach an agreement. At some point, the mediator may pose a final agreement for the parties and urge them to accept. Transformative Mediation Transformative mediation is the newest concept of the three, named by Folger & Bush (1994) in their book “the promise of mediation”. Transformative mediation is based on the values of "empowerment" of each of the parties as much as possible, and recognition by each of the parties of the other parties' needs, interests, values and points of view. The potential for transformative mediation is that any or all parties or their relationships may be transformed during the mediation (Meierding, 1993). Transformative mediators meet with parties together, since only they can give each other recognition. They are normally used when dealing with cases that involve family members and relationships that must continue after the mediation process. THE MEDIATION PROCESS A party to a dispute initiates mediation by advising the other party, in oral or in writing, briefly identifying the nature of the dispute. If there is no provision for mediation in the contract, the claimant may invite the other party to agree to mediation. It may also be initiated by a court of law. As already mentioned, mediation should take place on neutral ground, in a room which ensures neutrality and confidentiality. The seating arrangement should not separate the parties off directly from one another in order to maintain an atmosphere of cooperation (Slaikeu, 1996). The ground rule After all members of each party have been seated in the meeting room, the mediator will give an opening statement explaining why the parties are there, followed by a brief summary of how the mediation process will proceed by stating the general ground rules and laying emphasis on ‘no interruption rule’. He will then call for opening statements from the parties. The mediator should ensure that each party’s opening statement is fairly brief and touches only on the controversial issues and what they seek to accomplish through the mediation process (McKay, 1985). Usually, it is the petitioner who speaks first. Clarification and questioning Following the opening statements, time will be given to each party for clarification of the other party’s statement by asking the other party questions. No negotiation takes place at this time. Once the parties begin to trust the mediator, they will open up and give a better idea of their true positions and resistance points on each issue. They will also express their feelings and emotions to each other in a productive manner. The mediator at this time will be taking note of their interests, and resistance points of the parties, important facts as the parties see them, what each party will do if the mediation fails to reach agreement and possible creative solutions as he tries to fill in the information gaps and uncover hidden agenda (Slaikeu, 1996). Caucasus and leverage The mediator then tries to bring the two sides close to an agreement as possible. This can be done by meeting them separately if it is important, this is called caucus. A caucus is a meeting of members of a group or subgroup to discuss issues and make decisions. In a mediation process, a caucus is a confidential meeting of members of one side of a dispute, usually with the mediator, to discuss options and attempt to find a resolution (McKay, 1985). According to Baron (1986), since joint meetings can be much more productive and efficient than meeting with each party separately (caucus), it is up to the mediator to decide if and when they are ready to enter back into joint meetings for deliberations and compromise. Finally, if an acceptable agreement is not reached, the mediator can employ the technique called leverage. In mediation, leverage is a term for power to persuade; it is a mediation tool or resource and takes the form of effective persuasion rather than punishments or threats to make a party comply with an issue at hand (Meierding, 1993). Mediation agreement If the parties reach an agreement, the mediator must keep in mind that the ‘primary objective is to help the parties reach a new understanding or plan for the future to which each party is satisfied and then begin to immediately implement the agreement (Slaikeu 1996). The mediator sometimes needs to play devil’s advocate and critically analyze what has been agreed. This is done by asking these questions: Does it truly meet the key interests of both sides? Is it viable when looking into the future? Will the agreement be well received with other key parties and constituents? When finally putting the agreement into writing, the participants should strive for simplicity in the choice of words, ensure the document is positive about the solution, and use only a single copy until the agreement is signed (Slaikeu 1996), keeping in mind that this step may guide the future drafting of legal documents. Follow up after mediation It is generally recommend that regardless of the outcome of the mediation, the mediator should try to follow up. As a matter of practice, mediators can send a letter to the parties or call them on the phone thanking them for attending the mediation. It is not only polite to send a thank you message or letter, but it also keeps the mediator in the forefront of the parties’ minds (McKay, 1985). According to Baron, et al (1986), the issue of follow up becomes especially important if the case was not fully settled. Some cases just can’t settle at the time of the mediation and need time to ripen. A mediator’s follow up will be critical to helping find out when the case will be ripe and finding out what he can do to help settle the case fully. MERITS OF MEDIATION Mediation is very vital as an Alternative dispute resolution technique. It has some advantages that negotiation and litigation does not have. Below are some of these merits: Privacy If a misunderstanding or a problem ends up in court, the hearing is usually open to the public and becomes a matter of public record. Even a guardianship hearing, which is generally not open to the public, persons or families testify in front of strangers about intimate matters. Privacy is an advantage of mediation that may be of particular importance in cases of this type. Probate, trust, and guardianship matters often involve family secrets and disputes that are embarrassing to the parties (Marsh, 1997a). The confidentiality of mediation may encourage families to speak more openly and allow the true reasons for the disputes to emerge more quickly. Privacy is particularly important to those parties who value "not airing the family's dirty laundry" in public. Mediation sessions are closed to the mass media. Additionally, parties who will continue to live or operate in the same social or business community may benefit from a "discreet conclusion" to their problems. Preservation of Relationships Preservation of the family and other ongoing relationships is another advantage of mediation. Many, if not most, of the cases that arise in the probate and guardianship context involve families whose lives together. This relationship could be irreparably shattered by bitter and prolonged litigation. In some of these cases, regardless of the outcome, it is vital that the relationship be preserved, as one family member may remain dependent on another for care-giving or financial assistance (Slaikeu, 1989). Relationships between a businessman and a customer may also suffer unnecessarily from the adversarial context of litigation. Mediation preserves relationships. Flexibility Litigation suffers from two major restrictions that do not apply to mediation. First, litigation assumes a result in which only one party is successful. Second, litigation limits the results to strict legal alternatives. In litigation, time and venue for meeting is fixed by the judge. Mediation on the other hand, allows the parties the opportunity to design solutions that meet their needs, while not necessarily adhering to technical legal principles. The parties may reach results that would be outside the confines of a typical judicial order. The flexibility of mediation also allows the parties to construct a resolution they perceive as "fair," perhaps proving more satisfying than a formalistic legal resolution. Time and venue for the meeting is fixed by the parties (McKay, 1985). Affordability and Quick decision making Reduced cost is often cited as one of the primary advantage of mediation. Its informal process allows for meetings to occur more quickly and for decisions to be made, if not in the first session itself, soon thereafter. This efficiency may result in decreased legal fees. In mediation court costs such as court reporter’s fee and transcript, etc. are avoided. Mediators may charge for their services, but many mediators provide services for minimal fee or even for free. Deals with emotional aspects of cases According to Overman, (1992) confidentiality and informal nature of mediation give the parties the opportunity to deal with the emotional issues of a case. Disputes in the context of probate, trust, or guardianship law may result in the tangible manifestation of long-standing family problems, for example; sibling rivalry, perceived favoritism, jealousy over or disapproval of a marriage or other relationship. Baron, et al (1986) added that parties in these cases may sometimes seek no more than an emotional consolation and apology or an opportunity to vent anger over a situation they perceive as unfair. In most of these cases, the mediator is just a communicator who brings the disputing parties together. Control and power imbalances Mediation increases the control the disputing parties have over the resolution. In a court case, the parties obtain a resolution, but control resides with the judge. In mediation, the parties retain a great deal of control over the procedure and outcome of the case (Overman, 1992). The parties themselves design their own resolution and this may be more likely to be committed to its success. DISADVANTAGES OF MEDIATION In spite of all the merits of mediation mentioned above, mediation process has the following disadvantages: Overpowering of a weaker party The parties retaining control in mediation is the potential for a more powerful party to overpower a weaker party. This power imbalance may manifest itself in a variety of ways. The powerful party may challenge the mediator to skew proceedings in a way that will favour him in given situation (Tillson, 1997). For example, a mediator may exercise special care towards an elderly family member who is party to a dispute against a young member because the elderly person by custom has some special capacity due to societal norms. Cannot be used for criminal cases Mediation is not an ideal ways to get to the truth of some cases. They cannot be used for criminal cases and some experts in abusive relationships do not believe that mediation is appropriate in cases where there has been domestic violence. They believe that mediation might just provide another way for the abuser to harm the victim (Tillson, 1997). Depending on the nature of the victim's injuries, he/she may not be able to assert her position in mediation’s informal setting. However, in litigation, lawyers and judges have many tools such as mandamus, certiorari, herbus corpus etc to get people to testify and produce evidence that are not available to mediators. Mediation has no formal rules Much of litigation procedures are designed to keep things fair to both parties. Mediation typically has no formal rules. This means that if one party is timid and the other is loud and aggressive, the timid person runs the risk of losing some of what is legally owed to him. Mediators have some skills that may help restore balance, but there is a limit to what they can do as compared with litigation (Marsh, 1997a). The goal may override fairness While efficiency and low cost are often publicized as strength of mediation, Baruch, et al (1994), points out that care should be taken lest these benefits become "goals" and override the basic fairness of the process. They argue that the pressure to be efficient and quick may cause a mediator to restrict the parties' participation in the mediation session, making the process unfair to one party. RELEVANCE OF MEDIATION IN HUMAN RIGHTS Mediation has a great role to play in promoting and protection of human rights. Below outlines some of the major relevance of mediation in human rights: Used to resolve human rights abuse cases In Ghana, the Commission on Human Rights and Administrative Justice (CHRAJ) has used mediation to resolve cases often involving conflict arising in divorce and child custody issues and in disputes between family members, neighbors, business partners, landlords and tenants, and labour unions and management. This has promoted the rights of neighbors and family members in the society. For instance in 2008, a total of 7,057 (72.8%) of complaint received by CHRAJ were settled using Mediation and Negotiations (CHRAJ, 2008). Protect and promote the state of human rights Again, one of the most challenging issues in the period after a peace agreement has been reached is how to deal with the human rights abuses committed by the individual or group. While lawyers push for accountability for crimes committed and punishment to deter further abuses, human rights and conflict resolution advocates worry that punishing the perpetrators might further splinter the society, making the healing process more difficult. Mediation has a solution to this problem because it resolves troubles without offering punishment to offenders; this promotes human rights and peace in the community. Protect privacy In Article 18 (2) of the 1992 constitution of Ghana, “No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others”. Mediation protect this very important human rights to a very high level since it prevent disputants "not wash their family’s dirty laundry" in public. Relieve human rights courts Community Mediation has relieved the human rights courts of a lot of cases that would have come to them. This gives human rights tribunals and courts enough time to deal with abuses which are criminal in nature. Mediation also prevents wars and massive human rights violations, and helps rebuild societies in their aftermath of a conflict. Makes people human right conscious Mediation makes people human right conscious and is also an effective alternative when behavioral change is desired in a person. Mediation results are usually achieved far more quickly and economically than litigation or arbitration. Mediators are communicators and facilitators; they use their skills to counsel disputants to make them think about deeply about the effects of abuses they perpetuate on other. People who could have been sent to prison through litigation for their inability to speak eloquently or procure the service of a good lawyer will have their rights protected if mediation is used. CONCLUSION Although mediation is a means of seeking resolution of disputes involving conflicting views or interests, the mediation process is significantly different from legal adversary actions. The end result in successful mediation does not consist of "winners" and "losers," but of parties who have carefully examined and defined set of issues and have come to an accommodation of views and practices. The main focus is not on adjudicating alleged past offenses but on forging consensus as to reasonable and desirable new ways of doing things from this point forward. Mediation as an alternative dispute resolution has successfully reconciled cases throughout the world, involving a wide range of problems experienced by minority and racial or ethnic groups, communities, and tribes and individuals. Almost always the parties have come to understand each other in a manner never before achieved or even contemplated. Most of the problems taken to mediation have been resolved and constructive changes in attitudes and relationships, as well as in life conditions, have been achieved. However, there can be no advance guarantee that the parties will achieve agreement during mediation. Mediation may not be effective if one of the parties is unwilling to cooperate or compromise. Mediation also may not be effective if one of the parties has a significant advantage in power over the other. Therefore, it may not be a good choice if the parties have a history of abuse or victimization or the case is criminal in nature, in such a case other types of Alternative Dispute Resolution such as arbitration may be considered or even litigation if there is the need for it. REFERENCE Barash D. P. & Webel P. (2002). Peace and Conflict Studies. California: Sage Publications. Baron, R.M., & Kenny, D.A. (1986). The moderator-mediator variable distinction in social psychological research: Washinton C.D: American Psychological Association. Baruch K. et al (1994), The Promise of Mediation: Alabama; Jossey-Bass Commission on Human Rights and Administrative Justice (CHRAJ) 2008 Report; Accra Marsh, R. (1997a). What is mediation? Internet Site: (http:// members. aol.com/ethesis /mw1/ adr1 /essayi.htm). Retrieved: 10/03/2013 McKay, R. (1985). The many uses of alternative dispute resolution. The Arbitration Journal Meierding, N. R. (1993). Does mediation work? 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