Mediation as a Not so Modern Concept …

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Mediation as a not so modern Concept in Developing Countries Vs. Judges see the inherent value of Mediation in a modern legal system

By Ruby Sandhu,

Returning recently from Asmara, Eritrea in the Horn of Africa, I met with mediators from the impressive grassroots community courts from the six Zoba regions in Eritrea, individuals equal in gender and spanning a generation.

Eritrea, a country that is consistently referred to as a despotic regime, one without the Rule of Law, labels that we conveniently shoot from the hip to undermine sovereign states without understanding their context and importantly the implications of our actions. A tick box approach to international law and at worst an agenda for the instrumentalisation of human rights, that is using the good work of genuine activists who bring to our attention human rights violations, to consciously or unconsciously illicit the agendas of interested entities premised on geopolitics, self interest or exploitation of natural resources. 

A dangerous trajectory for all parties concerned when engagement and through mediation could be far more productive than creating another isolationist state or vacuum for insurgency. No-one in this day and age is naïve to this, however, there is inherent ignorance of international human rights law and where as Professor Asmarom Legesse emphatically states that the West’s approach to developing nations is that there is “… focus only on the civil and political rights at the expense of economic social cultural rights – pertinent for a developing nation such as Eritrea” and importantly the universality of these rights imperative for sustainable and inclusive growth for such developing nations.

In the West we instrumentalise civil and political rights, such as the consistent call for elections without understanding or engagement on all aspects of human rights in such countries.

I have the utmost of respect for genuine activists who put their lives on the line to highlight the worst of human rights violations in sovereign states around the world, sadly, however, the damage activism takes when human rights violations are instrumentalised by powerful subversive actors to serve a policy of self interest are egregious.

Richard Williams, a former commander of the SAS writes of our intervention in Afghanistan and the ensuing consequences, that is, endemic corruption and lack of political leadership in his article published in the Times on the 29th December 2015, he states:

“….As for the veneer of respectability that came from horribly rigged elections, talk of a “rule of law” or from political grandstanding in media-enable forums of international affairs – these just fed the average Afghan’s cynical and lowly view of these institutions”.

Interfering without respecting the appropriate context, especially now as such nations deal with climate change, famine, food security and extremism, the importance and the need to engage constructively and through alternate dispute resolution processes and in diplomacy with a developing country is paramount including in Eritrea where there is resolve by the Government of Eritrea and with foreign businesses to support its development and with the assistance of G8 & G15 nations through investment and sustainable exploitation of its natural resources and thereby assist in the nations transition to modern democracy.

This requires that activists do their work, however a whole nation should not be defined and viewed from just that activist lens; that would be akin to defining England and providing an international narrative premised on the conduct of the worst of our extreme football hooligans. A holistic perspective is required and importantly the skills of effective mediation and engagement.

For lawyers operating litigiously without context can violate the principle of Do No Harm. Activism and litigation are important tools to provide a catalyst for action and remedy in the most intransigent of defendants however mediation should also be considered as an integral and important part of the process and have a key role in the legal toolkit as instead of further polarizing the situation into right and wrong thereby overstepping the intricate dynamics and damaging the potential for a progressive solution to be commandeered. This requires lawyers to step up from just lawyers to trusted advisors.

It is therefore important that in developing countries the indigenous and customary laws be respected and development take place from the countries own lived experience as instead of the transplant of expensive wieldy processes which do not serve the nation, a one size fits all.

Eritrea has a sophisticated set of such laws developed through a history of struggle, self reliance and during colonization, annexation and eventual self determination. The Eritrean community courts are in many ways ahead of our own now developing mediation system, as we have come full circle to recognizing that our court systems do not always provide easy access to justice and remedy and further to the legal aid reforms where mediation is ever more relevant.

This we have seen in the development of recent case law where failure to mediate or unreasonable delay in agreeing to a mediation have been considered detrimental to the refusing party especially where such a party turns out to be the losing party.

It is unlikely that mandatory mediation could be imposed by statute, however, from a common law perspective there is gathering momentum for considering mediation irrespective of a client’s potential for success in court to encourage parties to consider the mediation process whether facilitative or evaluative to provide for solutions which are beyond conventional litigation.

In conclusion, the importance that judges are providing for mediation is clearly a progressive step forward and one that our domestic legal system should heartily embrace and perhaps a return to our inherent indigenous wisdom and rationale accessed through mediation.

Ruby Sandhu is founder of RS Collaboration & Partner at The Brooke Consultancy LLP and she can be reached at