WSG Article: Mediation and Its Other Benefits - Consortium Legal - Nicaragua
Consortium Legal - Nicaragua
April 16, 2004 - Managua, Nicaragua
Mediation and Its Other Benefits
by Gertrudis Hernandez-Palacios
It has not been a secret that confidentiality and the possibility of investing less resources (time and money) in the conflict resolution are the most used strategies in the promotion and integration of the mediation process into the formal system. Certainly, those strategies are invaluable and are an amazing attractive for the practice of this process, not only in our system, where the access to justice is limited in terms of not having the resources to face the process expenses and in terms of the lack of physical facilities (court houses) in rural areas, but in other countries where the problems related to the access of justice have not reached critical and dramatic levels as our case. It is important to consider these benefits are surely not the only ones mediation offers.
Although in mediation's initial phase in Nicaragua , due to the lack of information and clarity about the process, it was pretty understandable just to mention confidentiality and saving of resources as "the" process values. However, still considering them as the only benefits will not only limit all of the goodness offered by the process of mediation but it will also reveal the need of educating the professionals of the field as the institutions in charge of regulating such process.
The purpose of this article is to bring to light other of the forgotten but not less important benefits of the mediation process: Self determination, Education and Higher levels of satisfaction ot the parties and Justice perception.
I will now refer to self-determination as it is one of the strongest fundament of alternative dispute resolution (ADR). Self-determination must be understood not only from the perspective of the users´ will deciding to use or not mediation for the resolution of their conflicts but from a wider or complex perspective demanding users higher levels of responsibilities in the finding and enforcing conflicts solutions. As it is known, with the exception of legal mediation, participants are the only responsible in complying with the decisions taken in the mediation process.
Self-determination could be easily related to the following benefit: Education. Both benefits relate in the sense that if the participants are not well educated about the value and the meaning of their responsibility in terms of participating and in the decision-making process, the mediation process could fail not only in pursuing agreements, that is one of the mediation purposes, but also in the effort of decongesting the formal system. In order to avoid those risks it will be necessary to help participants to have consciousness of their responsibility in the process. This will only be achieved with the establishment of a new culture: the culture of Peace that implies new communication patterns that acknowledge the individuals needs, interest and expectations and the practice of such principles as pacific harmony and solidarity among community members.
The benefit of reaching higher levels of satisfaction and Justice perception in the mediation process is linked to the fact the participants are directly involve in the definition of a solution of their own matters. Undoubtedly they are the most suitable for the establishment of better, real and just options in the resolutions of their differences.
Adding all of the above described benefits it is easy to visualize their interaction in the development of the process. The first visible benefit begins with the participants´ self-determination having the participants the opportunity to resolve their differences through new communication schemas that are promoted in the community with the education of its members . In this sense, the individual rights of accessing justice will be reassured through more economical, flexible, and faster methods in the conflict resolution, reaching higher levels of satisfaction and justice perception.