Part VII: The Mediation Sessions
PART SEVEN: COURT-ANNEXED MEDIATION IN LESOTHO
The Mediation Sessions
The Court-Annexed Mediation (CAM) Programme is one of the new initiatives that has been introduced in the High Court of Lesotho under the Civil Legal Reform Project (CLRP), with the support of the Millennium Challenge Account – Lesotho (MCA-Lesotho) and the International Law Institute – African Centre for Legal Excellence (ILI-ACLE).
The last article in this series, chronicled the many advantages and benefits of Mediation over litigation as a dispute resolution mechanism. From speedy process, to cost savings; from informality of procedure, to confidentiality of the process; and from empowerment of the Parties themselves, to the win-win result of the mediation effort - all these were discussed at length.
The present article concentrates on what to expect at the mediation sessions – by way of procedure, process and practice. Here, again, Mediation presents a long list and a vast variety of special features that are manifested at the sessions. For this brief article, however, we will highlight only some of the most outstanding of these features.
First among these, is the feature of Informality. The process will involve only a modicum of documents to concentrate the mind of the negotiators. The mediation forum, unlike the courtroom, will not be suffused with judicial gowns and robes, let alone wigs; nor the stern-looking marshalls and the whole paraphernalia of full-fledged court litigation. Instead, the Parties will sit with a plain clothes Mediator, in a simple ordinary office – cosy, intimate and litigant-friendly surroundings; holding a free discussion of their matter.
Second, is the feature of Transparency. No official records of the proceedings are kept. Indeed, the proceedings themselves are conducted on the basis of “Without Prejudice” – meaning that whatever is said, conceded or promised by any Party in these sessions, cannot and will not bind the Parties outside the mediation effort – such as in any subsequent court actions. This feature, therefore, encourages the Parties to negotiate and to give offers and counter-offers (including concessions), without fear of tying up their hands; or endangering their position in any future case(s) on the same matter. Transparency is also manifested in other respects. The procedure involves no legalese, no jargon, no Latinisms and no other mystique of language. There are no lengthy learned submissions, and no elegant examinations and overbearing cross-examinations to assert the Parties’ opposing contentions. Rather, the atmosphere seeks to elicit heart-to-heart negotiations – ideally led and driven by the Parties themselves (under the skillful facilitation of the Mediator) – in order to reach a mutual settlement of their dispute.
Third, is Speed. The Mediation sessions under the CAM are required to last a maximum of two days only. Adjournments in the proceedings are not tolerated – envisaged only for compelling reasons. Personal presence of the Parties and their counsel at the sessions are mandatory. Failure to attend without good cause and prior excuse attracts payment of adjournment costs. Moreover, those attending the sessions must be persons knowledgeable about the facts of the dispute, as well as having full authority to settle (i.e., those with authority to negotiate and to bind their Principals). All these requirements redound to the speedy conduct of the mediation proceedings – in preparation of which the Parties are required to draft and exchange brief submissions of their respective cases, at least five days before the mediation session.
Fourth, the actual sessions feature a highly efficacious procedure. The Mediator makes introductory remarks, highlighting the guidelines for conducting the session. The Parties then make their own successive opening statements, profiling their case and their positions, on the issues. Proceedings are then conducted in joint sessions; followed by separate caucuses, where the Mediator meets individually with each Party to concretise that Party’s position, offer or counter-offer – all which the Mediator then relays to the other Party for negotiation. This shuttle diplomacy is handled skillfully, and continues as long as it takes to arrive at a mutual agreement, sealed in a final joint session.
The fifth feature, involves the process of reaching and recording the Parties’ Agreed Settlement. The settlement is the very embodiment of the Parties, empowerment. It is the Parties themselves who, through the series of their negotiations, craft their own terms and conditions of the settlement – assisted as appropriate by their respective counsel. The Parties’ terms of settlement are then transformed by the Court into a formal, binding Judgment of the Court – enforceable and executable like all other Court Judgments. Indeed, since this judgment is, in truth, the Parties’ own judgment, mutually agreed by the Parties themselves, this kind of judgment is rarely appealed to any higher court – and if appealed, is rarely overturned. As such, it is an iron-clad judgment, with extraordinary certainty, finality and dependability.
For more information please contact:
The Office of the Registrar
Palace of Justice
P. O. Box 90