Where a dispute arises between parties, it is natural to try to resolve it by inter-party negotiations. Where it fails, third parties may intervene, either voluntarily or at the behest of either of (or both) the parties. Where the third party’s task is to investigate the dispute and present the disputants with a set of formal proposals for its solution, he is called a Conciliator. Where his task is to focus the disputants’ attention on their underlying interests and concerns and move them away from their fixed positions that cloud the issue, he is a Mediator.

Though a Mediator may be more active than a Conciliator, the distinction is thin, indeed. In some jurisdictions, a Mediator is a Conciliator and vice versa, as their tasks are based one the consensus of the disputants, brokered by a neutral third party. This state of flux has been aptly described by the learned authors of ADR principles and practice, Messrs Henry Brown ad Arthur Marmout thus: “The term “mediation” is often used interchangeably with “conciliation.”

Sometimes, however, “mediation” is understood to involve a situation in which the mediator is more pre-active; and sometimes the reverse usage is used, there is no national or international consistency of usage of these terms.”

Thus, whereas, part two of the Arbitration and Conciliator Act, Cap 19, Laws of the Federal of Nigeria, 1990 governs the process of conciliation in Nigeria, where the disputants so elect, and makes no mention of mediation, it is agreed in practise, that the word “conciliation” therein, is interchangeable with mediation. That is what I intend to do here.

I must, from the on-set, state that I have not come across any case law of mediation in Nigeria, which is the only country I know that has a law governing the process of conciliation. I shall therefore use some national and international examples we are all too familiar with and the Act to illustrate the process. S. 38 of the Act stipulates that a party who seeks a conciliation shall send a written request to the party setting out the issue in dispute. Where the request is accepted, S. 49 provides that a conciliation panel of between one and three persons may be set up to settle the dispute. The procedure can also be in the reverse order.

The disputants’ acceptance of conciliation implies a readiness to discuss and shift grounds. If either party is not interested in making concession, there is no need for a mediation, as it would produce no result. This situation is best exemplified by the position of Nigeria on the issue of Biafra before the OAU’s mediator, Emperor Haile Selasie, that her position was non-negotiable, as the dispute was a domestic affair concerning her territorial integrity. Thus, nothing came out of the mediation table of the OAU. Peace only came through the war front.

The disputants have a right to submit their dispute to mediators of their own choice. This is called party autonomy. It gives them the right to make their decisions in respect of the mediation and to reject any decision made by the mediator. The Aburi accord and its aftermath easily come to mind to illustrate this point.

An essential contributory to the success of mediation is the mediator(s). The mediator(s) may be a country or countries, multi-lateral organisation or individual(s) with goodwill. S. 41 of the Act imposes an obligation on the conciliator to gather all the relevant details and information required to settle the dispute. While a mediator must be independent and neutral nothing stops a party who is close to one or both disputants from mediating. On the contrary, that should be recommended, as such a mediator would bring the weight of his influence on the parties to extract concessions. A ready example that comes to mind is the Falklands crisis between Argentina and the UK. It took the intervention of the United States, a U.K. ally, and the main arm supplier and business partner of Argentina, to cease hostilities.

In pursuing an acceptable reconciliation, the mediator has a duty to narrow the issues. Once he has established contact with the disputants, he has a duty to help them understand each other’s view to enable them prioritise their interests. Since, unlike an arbitrator, he is not in a position to call witnesses, he must use all his skills to obtain the required information and co-operation. In doing all these, he would bear in mind the duty of parties to maintain the confidence of each other and the confidentiality of the process. Confidentiality may be a term of mediation agreement or simply inferred from the circumstances of the non-resort to litigation, as it helps the disputants to try creative solutions, without pressure from vested interest.

This was what Israel and the Palestinian Liberation Organisation (P.L.O) did for months in Madrid, Spain, in 1992 under the mediation of the USA, the E.U and Russia, which culminated in Israel’s agreement to the creation of Palestinian Authority, preparatory to the creation of the country for the Palestinians and the P.L.O’s recognition of the state of Israel, for the firstt time since 1948. S. 42(1) of the Act provides that, after the conciliators have examined the dispute and heard the parties, they shall submit a term of settlement to the parties. Though the Act is silent on it, article 15 of the United Nations Commission International Trade Law (UNCITRAL) model law, from which it was fashioned, provides that where an agreement is reached or the conciliator and/or the disputants find that it is deadlock, it should be terminated.

Nothing summarises the position of mediation in Nigeria better than S. 42(4) of the Act which stipulates that nothing done in connection with a conciliation proceedings shall affect the legal rights of the disputants, either in Court or in an arbitration. Mediation is thus, not binding and cannot constitute res judicata.

In Nigeria a most recent mediation typifies the beautiful and ugly sides of mediation. It is the case of Lagos State Government v. Federal Government of Nigeria which arose when a Supreme Court judgment became the subject of conflicting interpretations. The mediation was presided over by Prince Bola Ajibola, SAN. Both parties made concessions. Lagos State reverted to the old 20 local government system while the federal government agreed to release its withheld funds. That is the beautiful side. Halfway into its implementation, however, one party allegedly reneged on a part of the agreement and both parties returned to the status quo. The party that breached the agreement did it without fear of any sanction, as the agreement was only binding in honour. It does not have the binding force of law. That is the ugly side of mediation.

Is it any wonder that Adolf Hitler the then German leader, had the foresight(?) just before the commencement of the second world war to reject the offer of the Pope to mediate between him and the U.K. France and Russia? When his Advisers insisted it was a desirable option, Hitler, the commander-in-chief of what was then the largest Armed Forces in the world, summarised his result thus: “How much power does the pope have to enforce an agreement? How many divisions (of any army) does the pope have?”