NOTES OF DISCUSSION OF THE PAPER PRESENTED ON THE SUBJECT AT THE NIGERIA BAR ASOOCIATION IKEJA BRANCH, APRIL 29, 2014

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1 DR FABIAN AJOGWU, SAN EXPLORING THE MEDIATION WINDOW AT THE COURT OF APPEAL, HIGH COURT, MAGISTRATES COURT, FAMILY COURT, AND CRIMINAL COURT: PROSPECTS, CHALLENGES, DRAWBACKS, EFFICACY NOTES OF DISCUSSION OF THE PAPER PRESENTED ON THE SUBJECT AT THE NIGERIA BAR ASOOCIATION IKEJA BRANCH, APRIL 29, 2014 THE MEDIATION PROCESS Mediation is a form of Alternative Dispute Resolution facilitated by a neutral third party wherein the parties negotiate on possible terms of settlement. This process had been in existence as a means of settlement of dispute in Nigeria in the pre-colonial era until the introduction of the litigation culture by the Colonial Powers. Mediation is a tool in Nigeria for settling disputes in an amicable manner thereby preserving the existing relationship between the parties. It is usually a win - win approach to resolving disputes and fostering satisfaction of both parties. With the advantages of mediation over litigation, the prospects of its applicability in the Court system is gaining grounds with the entrenchment of Court referrals to Alternative Dispute Resolution bodies and Mediation Centres in the various Regulations and laws governing the Courts. COURT OF APPEAL The Negotiation and Conflict Management Group (NCMG), a membership-based organization, in fulfilling its mission of promotion of Alternative Dispute Resolution (ADR) and conflict management techniques in Africa, introduced ADR into the Appellate Courts by pushing for the establishment of the Court of Appeal Mediation Program (CAMP) within Nigeria s Court of Appeal in The Program is statutorily provided for in the Court of Appeal Rules Order 16 rule 1 of the Rules provides that: At any time before an appeal is set down for hearing, the Court may in appropriate circumstances upon the request of any of the parties refer the appeal to 1

2 the Court of Appeal mediation Program (CAMP); provided that such appeal is of a purely civil nature and relates to liquidated money demand, matrimonial causes, child custody or such other matter as may be mutually agreed by the parties. The parties in a suit on appeal also have the liberty to, at any time during the course of the hearing of an appeal to explore mediation or any other Alternative Dispute Resolution mechanism as considered appropriate in the circumstances towards the resolution of their dispute (Order 16 r 3(a)). The Rules also provide that the parties should co-operate and give due regard to the Court of Appeal Mediation Program (Order 16 r 3(C)). The main purpose of the Mediation Program is to help parties amicably resolve the dispute which is the subject of the appeal before the Court since most civil appeals are eligible for Mediation. This program assists in the expeditious handling of the appeal. Where the parties succeed in resolving their dispute, the agreement reached will be adopted as the Judgment of the Court thus giving it a binding effect on the parties (Order 16 r 4). It is important to note that not all appeals can be referred to the program. Only matters that are for liquidated money demand, matrimonial causes, child custody or such other matter as may be mutually agreed to by the parties can be referred to the program. HIGH COURT On June 11, 2004 the Chief Judge of Lagos State issued practice directions for the functioning of the Lagos Multi-Door Courthouse (LMDC - the first court-connected ADR Centre in Africa) located within the court premises. The practice directions emphasized that the court must further its overriding objective by actively managing cases. Mediation is a popular method adopted at the LMDC because of its advantages. The 2012 High Court of Lagos State (Civil Procedure) Rules provides for all originating processes which are accepted for filing at the Registry to be screened for suitability for ADR and referred to the LMDC or other appropriate ADR institutions(order 3 r 11). Also the Rules provide for Case Management Conference (CMC) and scheduling (Order 25). The aim of CMC is for the Court to distil the relevant issues so the Court is not burdened with trivial issues, as parties can be referred to the LMDC or other relevant ADR bodies (Order 25 r 2(l)) during CMC. The ADR Judge at the LMDC shall in the Case of recalcitrant parties give appropriate directives and sanctions. Also where a party fails to participate in the ADR proceedings, the referral Judge shall, in the case of the Claimant dismiss the claim and in the Case of the Defendant enter Judgment against him while appropriate (Order 25 r 6). This Judgment can however be set aside within 7 days of the 2

3 Judgment upon the application of the recalcitrant party accompanied by an undertaking to participate effectively in the ADR (Order 25 r 7). The above provisions included in the 2012 Rules of the Lagos State High Court connote the desire of the Court to dispense with matters expeditiously through Mediation and other ADR mechanisms than litigation would offer. MAGISTRATES COURT By virtue of Section 35 of the Magistrate Court Law of Lagos State, the Magistrates shall encourage amicable settlement of disputes and may refer proceedings in relation to any action, part of or any matter arising out of it, for mediation to the Citizens' Mediation Centre established under the Citizens' Mediation Centre Law and or Lagos Multi Door Court house. Section 36 of the Law provides that a Magistrate may, with the consent of the parties refer all or part of the proceedings to Mediation and Arbitration, the Court shall determine the Mediator and Arbitrator and also the manner and terms of proceedings as the Court thinks just. Where the dispute is settled at the Mediation Centre, the Court adopts the agreement of the parties as the Judgment of the Court. FAMILY COURT The Lagos State Judiciary in 2012 enacted the Family Court Rules pursuant to Section 150 of the Child s Rights Law of Lagos State 2007 for the procedure applicable in the Family Court. The Family Court within the context of the Rules means a High Court or a Magistrate Court designated as Family Court. The hallmark of Mediation as well as other ADR processes is the privacy of its proceedings. This is one of the features of proceedings at the Family Courts because of the nature of the parties involved. Order 4 of the Rules provides for the exploration of Alternative Dispute Resolution by the Parties. The Court may give directions under this Order on the application of the parties or of its own initiative. Where the Court considers that ADR is appropriate may direct that the proceedings be adjourned for a specified period to: enable the parties obtain information and advice about alternative dispute resolution and where the parties agree, to enable alternative dispute resolution take place. 3

4 The above provision is unique to the Family Court Rules in that the parties are not compelled to explore ADR unlike the other Court rules which do not encourage a voluntary submission to ADR. CRIMINAL COURT The introduction of Plea Bargaining into the Administration of Criminal Justice Law 2011 of Lagos State is an innovation to encourage amicable settlement and expedite Court proceedings. The parties can enter into an agreement in respect of the Plea of guilty by the Defendant to the offence charged or a lesser offence of which he may be convicted on the charge and an appropriate sentence to be imposed by the Court if the Defendant is convicted of the offence to which he intends to plead guilty (Section 75 &76). Where the presiding Judge or Magistrate ascertains that the Defendant admitted the allegations in the charge to which he has pleaded guilty and that the agreement was entered into voluntarily, he may, if satisfied that the Defendant is guilty of the offence, convict the Defendant. Plea Bargaining is a negotiation process between the Prosecutor, the Defendant and his Legal practitioner however, it has not crystallized into Mediation properly so called because of the absence of a third party neutral to facilitate the negotiation which constitutes the very nature of Mediation. Worthy of note is the fact that Plea Bargaining is some sort of negotiation process peculiar to criminal proceedings. CHALLENGES AND PROSPECTS OF EXPLORING MEDIATION IN THE ABOVE COURTS The benefit of Court-annexed mediation or ADR is tremendous in terms of the Court s input and the fact that parties control of the settlement process is maintained. However, it has its fair share of drawbacks. Absence of a Mediation Act/Law Unlike Arbitration and Conciliation, there is no harmonized legislation governing the process of Mediation in Nigeria. There is the need to have a Mediation Act/Law which would stipulate a uniform mode of exploring this option. The Act/Law would provide among others, a time frame for Mediation proceedings and the liability as to costs. Also, the Act/Law would provide for the code of conduct of Mediators by laying down an 4

5 ethical standard for the conduct of Mediation. The Act/Law would address issues relating to accreditation of Mediators which would further enhance reliance by the Disputants on their expertise. Furthermore, the Act/Law would place Court-annexed Mediation on a solid foundation in Nigeria and further strengthen Mediation culture through the Court machinery. Awareness of the method Most parties that are referred to Mediation by the Courts may treat the process with levity by not submitting to the process. This is as a result of the general misconception that litigation is the only method through which disputes can be effectively resolved. Thus, even where parties submit to Mediation as directed by the Courts, there is a possibility of them not reaching an agreement. There is the need to create awareness in the minds of the citizenry on the advantages of Mediation and its efficacy in the settlement of disputes. Voluntariness of Mediation The peculiarity of Mediation over litigation is that parties are fully involved in the process of settlement with a third party merely playing an advisory role in the proceedings. The nature of Court annexed mediation at the High Court is such that the parties are referred to Mediation without their consent. Once a matter is filed at the Registry and it is screened and deemed suitable for ADR it is transferred to the LMDC. This poses as a threat to the voluntariness of submission to the process which is a detrimental to its success. Also, every citizen has the right to institute an action in court to obtain redress against any wrong done to him. A party should have the freedom to conduct its case as it sees fit and not be required to explore Mediation compulsorily. Uncertainty of outcome The cases referred to Mediation are tried at an added expense and uncertainty of trial. On some occasions, parties are unable to reach an amicable agreement and the Mediator would have to refer the matter to Court for trial. Also, parties which are unwilling to submit to Mediation stall the proceedings for purposes of having the matters referred back to court for trial. When this happens, considerable time would have been lost. 5

6 CONCLUSION The advantages of Court annexed Mediation outweighs its demerits as it has been found to save time, resources, reduce the stress of trial and avoid the risk of loss. The outcome of Mediation is more often than not a win - win situation which salvages business and personal relationships that would otherwise have been lost. These benefits outweigh the extra cost and time spent even if the Mediation is unsuccessful. Mediation, where unsuccessful, can narrow down the issues which can cut down the cost and time of trial, potentially benefitting both sides. It is the general perception that most clients are satisfied with the mediation process. It affords them the opportunity to be actively involved in the decision making process. It takes the decision out of the hands of strangers i.e Judge. It is apposite to state however that some parties are not satisfied with settlements reached vide Mediation even though it was agreed to voluntarily ab initio. That accounts for why an aggrieved party would go to Court seeking to nullify the outcome of Mediation. However on the whole, the level of satisfaction with Court referred Mediation remains high. Dr Fabian Ajogwu, SAN, FCIArb 6