MEDIAÇÃO NA NIGÉRIA

WHAT IS MEDIATION

Mediation is one of the tools in the Alternative To Dispute Resolution Mechanism wherein parties ( known.as  disputants ) resolve their disputes guided by a third party known.as the Mediator to reach a Settlement Agreement . It is conducted confidentially and not binding unless and until an agreement is reached and signed by the parties ( Disputants )
It is generally known as a parties process . The parties have to be willing to mediate ,thus ,if either party is not willing to mediate ,the mediation process cannot take place . The Mediation process is designed to meet the needs and circumstances of the parties . Mediation offers the parties ( disputants) the opportunity to be in control of the dispute resolution process .

HOW CAN MEDIATION TAKE PLACE
Mediation can be intiated either by the parties who are involved in the disputes or by the order of the court .With  respect to being initated by either party ,he or she can decide to reach out to a mediator to facilitate the settlement of a dispute . Once the other party is willing to mediate ,mediation can take place ..
In respect of the court ,the court can decide that parties recourse to mediation pre trial to sort out their dispute.
   WHO IS A MEDIATOR
A  Mediator is a neutral third party who faciltates the mediation process ,builds trust ,confidence and helps partners to develop creative options for settlement . The Mediator is to make sure that the process is done in.a manner that due regard is given to procedural fairness ,presence of appropriate parties ,competence and mutual respect among parties.  The Mediator must have a firm control over the process .
THE PHASES OF MEDIATION
The Preparation Phase
The Opening Phase
The Negotiation Phase
The Concluding  phase of  Mediation .
The Preparation.Phase : This phase deals with the appointment of the Mediator . Also, on this phase, the parties are intimated about  the process of Mediation .
Questions will be asked by the Mediator with regards to whether they have ever participated in a Mediation Session ?. The process for the commencement of Mediation will be put on place ,each party states his or her case ,tentative dates ,venue ,time table and refreshments are also taken into consideration.. At this stage , the Mediator has the opportunity of being acquainted with the parties ; therein it is expected that he gives the parties the confidence that he is capable of resolving their disputes   At the end of this phase, it is expected that.the parties should be able to understand the process . It is intended at this phase, adequate preparation should be made for a smooth process of Mediation..
The Opening Phase
At this stage , the tune of Mediation is set  The Mediator establishes his impartiality , credentials and ground rules of Mediation.  By establishing his credential ,the parties are more encouraged that they are in safe hands ,with respect to their dispute being resolved professionally
Also the establishment ensures that the process ,other things being equal will indeed be fair to both parties at the opening stage .it also makes the parties more comfortable for the session..
At the opening stage ,parties are called upon to give a narrative of the dispute ,usually it starts with the party that made the complaint .. The Mediator should ensure that he listens actively and not interrupt the parties while they state their case.
The Exploration Phase :At this stage ,issues are identified and characterised to know which issues need to be prioritised to reach a Settlement Agreement . In other words, the issue that is most pertinent to either party ; that of not properly sorted out , a Settlement Agreement may never be reached .
This is mostly done in Caucuses / private meetings wherein parties are more likely to speak freely on what bothers them the most than if they were in the presence of other parties. .
It Is important to note that at this stage settlement strategies are identified. The Mediator is encouraged to be patient , listen attentively ,ask open ended questions ; to encourage parties express their opinion and   have the confidence that he or she has been heard..
The Negotiation Phase :  This is the stage at which parties are ready to negotiate settlement terms . This is the movement of parties to agreements . This can be done either in the private or joint meeting ..it is important to note that the Mediator should bear in mind that the settlement will be on the terms reached by the parties and not his decision . At this stage, the Mediator emphasizes the importance of recalling a Settlement Agreement and also the consequences of not reaching a Settlement Agreement …
The Mediator broadens the parties horizon by thinking outside the box albeit to ensure that a Settlement Agreement is reached . The Mediator at this stage is an ” active deal maker “. Compromises are also made at this stage .
The Concluding Stage : At this stage , Settlement Agreement is reached by the parties guided by the Mediator ..Once a Settlement Agreement is reached , it should satisfy all the parties ,deal with all issues that were identified and must be enforceable. . The Concluding phase may reach settlement Agreement or adjournment of the proceedings if no settlement agreement is reached .

The excerpt I am about to send is taken from my book on Property Management ( Understanding The Basic Principles Of Property Management)
Definition Of Mediation
Mediation is a process whereby a third party ( known as a Mediator) helps both parties reach a negotiated settlement . This is called Settlement Agreement. It is voluntary .it can be initated by the order of the court or the parties who have disputes to settle..
With respect to Mediation in Property Management dispute ,for the process to be binding ,the parties usually the Landlord and Tenant must be willing to participate in the process . Suffice it to say that if neither party is interested in the process,it shall be void abinitio..
   LANDLORD AND TENANT MEDIATION OUTCOME
Mediation is key in property Management dispute because most Landlords who are perceptive enough recognise that focusing on interest rather than rights often result to more profitable model in a long run. To expatiate further, the Landlord knows that is more economical for him to avail himself the process of Mediation rather than bother himself on his right as a Landlord. . All that will matter to him is to effectively evict a recalcitrant Tenant and get another who he is sure can pay his or her rent as and when due.  It is noteworthy that even though the Landlord has the right to evict a recalcitrant Tenant ,he is to make sure it is done quickly and cost effectively ..
Mediation offers him this opportunity . His other interest is to get a new Tenant into the property . Thus, in respect of this situation , the services of a Mediator can be employed to persuade the Tenant to move out on a condition that will not be detrimental to ether the Landlord or the Tenant
Most often, both the Landlord and Tenant are comfortable with the options given . Most importantly , the Landlord saves cost and is most likely to get a Tenant that will pay rent as and when due .
, ADVANTAGES  OF MEDIATION
Mediation will ensure that parties do not get involved in protracted. legal tussle ,which may never come to an end.
In the situation where the relationship is between business concerns ,mediation will attempt to ensure that their relationship is preserved. . For instance , where a Landlord and Tenant had enjoyed a peaceable tenancy relationship for a while ,only to be smeared by misunderstanding between them .Herein ,the Mediation process will take into consideration their future business interest and not the temporary set back.
Confidentiality :Mediation ensures that dispute that arise between parties are not in the public domain.. There are institutions or people who will not want their reputation to be put stake in the public; they will.rather want a private settlement .
Mediation provides that alternative and solution
Cost : Other things being equal ,mediation provides a cheaper alternative to parties who desire to settle their dispute rather than recourse to litigation which is more cost intensive .
HOW TO FIND ThE RIGHT  MEDIATOR FOR PROPERTY DISPUTE
In appointing a mediator In a property Management dispute ,the authority that appoints ( often the court ) or the parties must make sure that he or she understands the subject matter in dispute and has garnered enough experience to address the issue . He or she must be able to connect with the disputing parties with respect to gaining confidence . He or she must be able to connect with the disputing parties with respect to gaining their confidence. . He must have good communication and listening skills in addition to the ability to think outside the box . The ability to think outside the box will give him or her the opportunity to put forward superior logic or reasoning to each of the parties ( Landlord and Tenant ) which will  invariably be their thoughts better expressed
ENFORCIBILITY OF MEDIATION PROCESS
Mediation process is enforceable once the parties are willing to participate in the session and there was no proof to the contrary to show that the Settlement Agreement was reached due to duress or manipulation of facts . Once the Mediator has exhibited utmost good faith and the parties agree to reach a Settlement Agreement, mediation is binding and enforceable between the parties.
QUALITIES. OF A MEDIATOR
He must have a good communication and listening skill.
He or she must have the ability to think outside the box . This gives the Mediator the opportunity to put forward superior logic or reasoning to that of the parties on the strength of the superior reasoning the parties may probably concede
The Mediator must be patient
The Mediator must be impartial.

CHIJIOKE NNANNA IBEKU

Advogado, Mediador e Escritor na Nigéria.