Episode 9: The LMDC Journey under the leadership of Mrs Adeyinka Aroyewun

 

Mrs Adeyinka Aroyewun-Director of LMDC.

 

ABSTRACT

I was delighted to welcome Mrs Adeyinka Aroyewun, the Director and Member of the Governing Council at the (LMDC); an International Mediator of the Centre for Effective Dispute Resolution (CEDR), United Kingdom (UK), Member of the Charted Institute of Arbitrators (CIArb) UK.  She has mediated over seventy (70) disputes and has gained experience in a comprehensive range of disputes, such as Commercial Disputes, Financial/Banking, Property, Employment and Family Disputes. In this episode of EVA, we critically discussed the following questions – What prompted the birth of the LMDC in the Nigerian Judicial Landscape? What are the advantages of using the LMDC and its impact so far? How does the Court-Connected ADR work? How can parties commence or initiate matters at the LMDC? With the recent challenges faced at the LMDC, what is the resultant effect of these challenges or occurrence?

We concluded by touching on these challenges caused by the COVID-19 Pandemic and END SARS peaceful protest hijacked by hoodlums, which led to the burning down of LMDC. Despite these challenges, the LMDC has continued to render services remotely to their users.

Keywords: Alternative Dispute Resolution, Multi-Door Courthouse, LMDC, ODR, Access to Justice, Court-Connected ADR, COVID-19 pandemic, END SARS.

 

INTRODUCTION

WHAT PROMPTED THE BIRTH OF THE LMDC?

To properly appreciate the circumstances that warranted the indigenous masterstroke intervention that the Lagos Multi-Door Courthouse is today, we painted a vivid picture of the Justice System before having the LMDC there.

Before the emergence of LMDC, the Nigerian Judicial system was not in a desirable state. Hitherto, the acknowledged means of dispute resolution was litigation. It reigned this adversarial culture in the consciousness of the citizenry by default, that once a dispute ensues the average person knows no better option than to resort to litigation.  As a result, the tremendous growth in the population, coupled with the increase with enlightenment, business activities, and the litigation culture’s fixation, and it was only inevitable that caseload will take an upper turn and spiral out of control.

However, not many would have predicted an alarming rate at which judicial caseload was overflowing, and judges could not single-handedly cope with the unenviable challenge despite their best effort. For instance, a Judge in the Lagos State Judiciary reported a thousand cases in her docket, which existed some cases that had spent twenty-nine years in court.

Inordinate delay and an irredeemable backlog of cases were inevitable with this kind of scenario in the grand scheme of things. Confidence was lost in the system, and it also took a toll on the Lordships as parties were driven asunder even before the judicial pronouncement. So, in a bid to help out with the Lagos Judicial system and keep with the global trends, the Alternative Dispute Resolution (ADR), notably the Multi-Door Courthouse (MDC) as an institutional repository of ADR mechanisms was mooted by the Harvard Professor Frank Sander and expounded upon at the 1976 Dean Roscoe Pound Conference.

On the other hand, what the Negotiation and Conflict Management Group (NCMG) founded by Mr Kehinde Aina – did was to spearhead this MDC concept and make it a reality in Africa with the collaboration of the Lagos State Judiciary the dream became a reality on June 11th  2002. The LMDC became the first Court-connected ADR Center in Africa. We then delve deeper into some of the specific elements and advantages that constitute the LMDC while highlighting its impact so far.

WHAT ARE THE ADVANTAGES OF USING THE LMDC AND ITS IMPACT SO FAR?

We elucidated that though the LMDC has not reached its desired height, publicity is not as much as they would want it to be. They also have the challenges of settling all disputes but found out that it is not possible as they cannot settle everything. However, we pointed out that some measures of progress have been made in about seventeen (17) years of existence. It is pertinent to point out that the LMDC are the touch bearers, the trailblazer, the first of its breed and because of that, other States of the Federation of Nigeria have followed suit.

 

Pioneering Role of the LMDC

We revealed for the first time one of the impacts the LMDC has made is that it triggered a phase of replication base by various States. For example, Abuja, Enugu, Akwa-Ibom, Rivers, Cross River, Delta, Ogun, Oyo, Kaduna, Ondo, Bayelsa, Abia, Edo, Borno and Katsina State. They all established their MDC following the Lagos State Model, and even in states where there are no MDC; there existed different kinds of ADR Institutions and Mediation Centres.

For these reasons, it is irrefutable to say that without the pioneering role of the LMDC none of the States would have ventured into doing something about ADR. This alone is a great testimony to the impact that the LMDC has made so far since its establishment.

 

 

Expanded Access to Justice:

Additionally, the LMDC has successfully established itself as a dependable and effective alternative litigation with the availability of access to justice through its dispute resolution patterns that are timely, cost-effective and user-friendly. Thus, the arrival of the LMDC has expanded access to justice in Lagos State and changed the judiciary’s face forever. The courthouses have now been transformed into a one-stop dispute resolution centre where a dispute has a real choice from different mechanisms, including litigation.

 

The High Court Civil (H.C) Procedure Rules 2019 Review: 

Subsequently, during the (H.C) Civil Procedure 2019 review, the LMDC suggested making the High Court Registry a one-stop dispute resolution centre. That is, if parties come to the High Court Registry, from that point, they can let them know whether it is litigation or mediation or negotiation that is suitable in resolving their respective disputes.

Undoubtedly, the (H.C) of Lagos Civil Procedural Rules established the ADR track in December 2012, the ADR track in the Ikeja Judicial Division, the ADR track in the Lagos Judicial Divisions and all the cases coming directly from the High Court will be screened by the LMDC. Once determined, it is stamped, and the parties will have to come to the MDC to be heard.

 

Timeliness:

Timeliness is one of the impacts of the LMDC on other States. Though there is still room for improvement, several mediations took just one (1) or two (2) mediation sessions or sittings to resolve. For example, in the 2017 Lagos Settlement Week, a banking case in Court for about 26years was settled at two (2) mediation sittings. Then a banking case with a claim of over 1.6 Billion Naira equivalent to 3,067.66 Pounds Sterling was settled in two (2) mediation sittings. Conversely, a case for dissolution of marriage was taken, and both parties withdrew their Petitions and Reliefs. In the same 2017 settlement week, about 4.5 Billion Naira equivalent to 8,637.82 Pounds Sterling monetary claims were recovered, representing about 14% of resolved matters.
However, in 2018 Settlement Week Programme, about 24.3 Billion Naira equivalent to 46,698,354.90 Pounds Sterling in monetary claims were recovered. Also, a case on the Administration of Estate has been in Court for nearly 29 years. However, it was settled in two (2) mediations sittings. Also, a banking case with a claim of over 1.8 Billion Naira equivalent to 3, 457,910.70 Pound Sterling was settled.

Following through, in 2016 and 2017 Settlement Week, 31.3 Billion Naira equivalent to 60,060,577.79 Pounds Sterling was recovered in claims, and also the LMDC impact can be gleaned from saving some legal fees. Management time for corporate litigants, court time, counsel time, the resources of the court, things like contingent reliability risk, reputational risk, other sheer inconveniences associated with serving litigation in financial terms, which we have computed with the colossal amount of savings made for the litigants in counsel and judicial system.

 

User Friendly:

With the help of the informality, the affairs of the Courthouse has played a huge role in ensuring a user-friendly and affordable LMDC, where parties who are unable to afford the services of the LMDC can apply for fee review or even pro-bono. It is essential to point out the LMDC has never turned away indigent disputants, unlike in litigation where parties will have to struggle with the high cost.

 

Preserves Relationship:

We highlighted another significant aspect of the LMDC: it preserves the relationship of the parties from the onset, unlike litigation where the battle line is drawn and the parties, their respective businesses, social and other various relationship are ruptured. However, there is credible, intense competition for business retention and securing of more clients in this age of globalisation rather than lose out in this respect. LMDC has done well in resolving disputes, but also in reconciling parties. They desire great fulfilment from seeing either two or more estranged parties now coming to an agreement, shake hands and continue with their business relationship, and that is what litigation cannot give. Even more so, when the parties resolve their respective disputes via litigation, oftentimes, the relationship might not be as cordial as it was before.

 

HOW DOES THE COURT-CONNECTED ADR WORK? 

There are about three main reasons why the LMDC is referred to as a Court-Connected dispute resolution centre – which is as follows:

1)  It is situated in the High Court (H.C) of Lagos;

2)  The Judges and the magistrates get to refer their cases;

3)  Even with the walk-in cases that are not referred by the Judge when the parties sign the Terms of Settlement (TOS), it is sent to the ADR Judges, and they will enter it and endorse it as a Consent Judgement in Court. The above-stated submission is the reason why the LMDC is referred to as a Court-Connectivity or Court-connected ADR.

 

 

HOW CAN PARTIES COMMENCE OR INITIATE THEIR MATTERS AT THE LMDC?

On how parties can initiate matters at the LMDC, we pointed out that these can be done in three ways-

Court Referral: Both a High Court Judge or Magistrate refer cases to the LMDC.

Walk-Ins: A Party can walk-in to the LMDC and initiate matters.

Validating the above-stated position is Section 4 of the LMDC Law 2007. Once parties that settled in other institutions reach the TOA, they can bring it to the LMDC through the ADR Judge, who will enter it as a Consent Judgement.

 

Direct Intervention:

In this category, the LMDC can directly intervene in cases or matters of high public interest. For instance, maybe strikes amongst others, the LMDC can intervene and write a letter to the people concerned, as well as to the government and invite the parties to come to negotiate their matters at the MDC.

 

WITH THE RECENT CHALLENGES FACED AT THE LMDC, WHAT IS THE RESULTANT EFFECT OF THESE CHALLENGES OR OCCURRENCE?

Prior to the COVID-19, the LMDC provided virtual interactions but had done that on a small scale but with the pandemic made it glaring and apparent that the Online Dispute Resolution (ODR) needed to go full scale. It resulted in the online dispute getting more intensity, especially as a result of the pandemic. The parties have embraced that idea being in their homes’ comfort and safety and simultaneously engaging in the dispute resolution process. The success story has already been recorded since they commenced the resolution of a dispute. Therefore, it could hold that the ODR has many benefits – save costs and does not require the parties involved to travel.

Suffix to say that the LMDC staff had to stay at home. When parties initiate the online dispute process, it is immediately linked to the LMDC website, as well as the ODR guidelines and requirement for mediators, because it is important that mediators understood ODR and understood how it operates. They also scheduled ODR practice sessions on zoom for their mediators and parties before they mediate to ensure a qualitative and seamless ODR mediation process. Additionally, they organised a general ODR facilitation training mediation certification course in collaboration with the ODR Court and ODR Europe for their mediators. They also held an online demonstration ODR process, emailed demo videos to their mediators, especially those requiring further assistance with technology and reviewed the LMDC Practice Direction on Mediation Procedure and ODR Mediation; this then gave it legal backing. It is fair to say that the LMDC embraced the new normal and maintained constant communication with the mediators with the online qualitative experience requirements. They need to have a laptop or tablet, data and practice peer review. Thus, at the end of the whole rigorous training, the LMDC mediators were certified in online mediation.

It is pertinent to point out that the LMDC has covered 30 to 40 cases since August 2020, though more claims are being handled as they commenced the first online settlement month in Africa on 7th December 2020 which is still ongoing at the time of this writing. However, the target was to meditate 500 cases online, but due to the usual challenges – network and data are yet to be achieved.
Given these challenges, the LMDC were resilient and surmounted these challenges by ensuring that they had a seamless qualitative process during the Settlement Month (SM) in December, though was initially scheduled in November. However, the hoodlums that hijacked the END SARS protest made this impossible. As they broke into the LMDC offices, looted and took away all the computer systems, printers, photocopiers and other equipment while the office was set ablaze.

In furtherance, the main ADR Unit was totally destroyed, ranging from the reception, the registry, the accounts section, the data unit; everything was burnt to the ground. Nevertheless, the LMDC persevered, as it carried on with work remotely, refusing to get deterred by such an act.

Currently, the LMDC no longer have an office at Igbosere because it was burnt down, but the ADR track office at Ikeja is still there. However, one of their mediators was kind enough to allow them to use part of her office- that is where they started with the ongoing Online Settlement Month (OSM). Hence, publicity was not as much as they would want it because the whole building was burnt down.

 

 

CONCLUSION:

In this work, we provided a detailed account of the concept behind the birth of the LMDC, past, the present journey, advantages, and impact on other states.
Consequently, with the level of advantages and impact revealed in this work, the LMDC is a success story notwithstanding the above-stated challenges, as the scheme has continued to render services remotely to their users. Given this, we encourage potential user or users to file their cases via the Online Settlement Month (OSM) within the comfort of their homes.

To hear the full version of this episode, click here and for more information on the OSM, visit the website of the LMDC and Instagram page.

 

REFERENCES:

Chinwe Stella Umegbolu, Episode 9: The LMDC Journey under the leadership of Mrs Adeyinka Aroyewun,
<https://anchor.fm/chinwe1/episodes/Episode-9-The-LMDC-Journey-under-the-leadership-of-Mrs-Adeyinka-Aroyewun-eoac1b> accessed 28th December 2020

Chinwe Stella Egbunike- Umegbolu, Dispensation of Justice: The  Lagos Multi-Door Courthouse (LMDC) as a Case Study (Ongoing-research at the University of Brighton 2018-2021) 89.

Adeyinka, Aroyewun, Mediation Profile, International Mediation Institute (IMI) <https://imimediation.org/member/adeyinka-aroyewun/> accessed 27th December 2020

LMDC Law 2007

LMDC Law 2015

Rule 28 of the High Court Rules of 2019

 

Episode 8: Top Tips for finding or choosing the Right Mediator

Abstract
I was thrilled to welcome Mrs Nnezi Miriam Ivenso, a lawyer with 13 (thirteen) years, post -qualification experience in active legal practice including Litigation, ADR and Corporate Commercial Practice. She holds a master’s degree in Law Financial Services from the University of London, a certified Mediator, enlisted as a Neutral with the Enugu State Multi-Door Courthouse (ESMDC) as well as an Associate Member of the Charted Institute of Arbitrators, (CIArb), United Kingdom. In this episode of Expert Views on ADR (EVA), the following questions were posed and dealt with – what is Mediation, what are the criteria for finding or hiring the right Mediator? Finally, the third question posed- ‘whether the mediators are allowed to use only the facilitative or evaluative Mediation, or can they use a combination of the two mediation styles?

We concluded by touching on the essential elements and features of Mediation while at the same time indicating the importance of finding the right Mediator.

 

Key terms:  Centre for Effective Dispute Resolution, United Kingdom,  Lagos Multi-Door Courthouse, Nigeria.

 

 

Introduction:

We understand that some people are not very clear on what Mediation means. They are common misconceptions on what Mediation is. For these reasons, we defined the term mediation with the hope that the outlined definition from two credible mediation institutes would assist potential users and disputants understand Mediation better.

 

Definition of Mediation?

The LMDC law 2007, defined “mediation as a voluntary process for resolving disputes with the assistance of a neutral third party who facilitates that dialogue between disputing parties and it helps them privately and collectively to identify the issues in disputes, reach the settlement of this disputes and mutually accept the settlements.”

On the other hand, CEDR defined “mediation as a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or a difference with the parties in ultimate control of the decision to settle and the terms of the agreement (TOA).”

The sentiments expressed in both quotation embodies the various features and elements of Mediation while capturing the concept of Mediation. We went on to highlight them and give a brief explanation of what each means as it will help potential users and disputants understand what meditation means.

 

1)   The Features and Elements of Mediation

 

Flexible Process: 

This means that contrary to the strict formal procedures or process that parties would ordinarily follow in litigation, in Mediation, this is the opposite, there is no formal procedure to be followed. Thus flexibility is one of the main factors that attract litigants and disputants to the meditation process because people feel confined especially where there is a strict formal procedure, thus many times in litigation- they sacrifice justice at the altar of technicality.

 

Confidentiality:

The mediation session’s entire process is confidential and without prejudice because parties are given the opportunity to sign the confidentiality clause. In most cases, the confidentiality clause serves as an incentive for making the parties open up and disclose the underlying issues inherent in the matter. That ordinarily they would not have disclosed (if it were in litigation) which most times are the root cause that triggered or led to the disagreement in the first place.

 

The Neutrality of the Mediator: 

There is neutrality on the part of the Mediator who is the one assisting the parties. To restate the Mediator is a neutral third party and he stays impartial and unbiased, does not take sides, and just helps the parties reach an agreement. Essentially, what the Mediator does is to assist the parties in working towards a negotiated agreement- this aspect also reflected in the definition of Mediation. However, there is also, a further point to be considered the mediators do not propose an agreement. The parties are the ones who decide what they want as opposed to litigation, where a decision is imposed on the litigants. Thus, in Mediation, the parties are in ultimate control of the process, and they also determine the outcome of whether or not they will be an agreement?

Undoubtedly, because of that, the parties are more likely to uphold the terms or abound by the Terms of Agreement (TOA) reached because they reached the agreement themselves. The discussion in the preceding paragraph has indicated that mediators do not impose any suggestions or decisions; instead, they facilitate communication between the parties. Nevertheless, if one puts that vis litigation, there are so many benefits that meditation has though, this is not to say that litigation is not without its benefits.

 

Cost and Speed: 

However, there are times that litigation is not an effective tool or route to take to settle disputes. For instance, some matters have been in court (20) twenty years or (30) thirty years. In some cases the original parties are deceased, and their children or grandchildren will carry on with the case which must have cost the deceased a fortune and eventually the children.

Given these points, Mediation is faster and cost-effective, because, in most cases under the mediation process, parties settle within a day or two days.

 

The Interest of the parties is Protected: 

We also pointed out that under Mediation the interest of the parties is well protected unlike in litigation that is more focused on enforcing the letters of the law and the reason is that the court can only give effect to the original intent of the parties, however, the problem with this is that the original intent might with the passage of time changes in circumstances. It may not accurately represent the parties’ needs and interest when the disputes occurred.

 

Preserves Relationship: 

We ascribed the above-mentioned subtheme as the selling point of Mediation as there is no adversarial tune to Mediation as opposed to litigation/ court where there is a loser or victor. However, in Mediation, the decision or agreement reached is usually one that both parties are comfortable with.

 

We illustrate that with Professor Goodman’s analogy- he stated ‘that they are two sisters who lived together and wanted to cook different meals. However, they both wanted to use orange in preparing these different meals. However, there is a problem with that because there is only one orange in the house, and they both needed the whole orange. Ordinarily, if this matter was taken to court, the court will rule that the orange be divided into two so each can get one to use. The problem with that is that half an orange will not make either of the meals they want to prepare. However, in Mediation, which deals with the parties’ interest, there is common ground- they both have an overlapping interest: one of the sisters only needs the orange to make an orange juice while the other needs the orange rind to prepare a marmalade. So the sister that needs the juice can say ‘okay let me squeeze out the juice, and you can have the rind of the orange ‘and vice versa.’

Against this backdrop, in Mediation, parties can make concessions and compromise. In other words, there are no losers or winners in the mediation process. Instead, it is a win-win situation for both parties. The parties go home happy. It is essential to point out that we also revealed that under the International Mediation Institute (IMI). They have this open feedback digest in their Mediator’s profiles where the previous parties can pen down or leave their feedback on their mediators’ performance instead of the recommendation or short biographies captured by the mediators or institutional bodies. We agreed that this is a reasonable practice and a good practice as it has the same effect as a review. However, at the same time, we pointed out that it has a drawback or a disadvantage. Some recalcitrant parties or difficulty parties can leave horrible comments that would affect the mediators, or the institutes practise.

 

2)  The Criteria for choosing or finding the right Mediator:

In furtherance, to the whole process, parties must find a mediator that is the right fit for the particular disputes that they are trying to resolve because for a mediation to be successful, it is vital that the parties can trust the Mediator and that they are comfortable around the Mediator.

For instance, in the Multi-Door Courthouses, when a dispute is referred to them, they choose the Mediator from the panel of neutral that they have or find the most suitable Mediator to handle the matter and the mediators are to sign a disclosure form indicating if there is a conflict of interest and if there is then they will appoint another mediator for the party. Though that does not stop the parties from indicating the Mediator that they would want to mediate their matter, in some cases, the parties with the help of their lawyers would choose the mediators they want. In so doing, they have to consider certain things. Some of the criteria that parties can take into consideration when finding or choosing the right Mediator are as follows:

 

a) Area of Practice: 

 

The party should find out how much experience the Mediator has in that particular area of dispute. For instance, if it is a family dispute or a work-based dispute, they would want to know if the Mediator has handled those kinds of disputes in the past and then follow that up.

b) Experience: 

It makes sense for parties actually to want an experienced mediator. Having an experienced mediator is vital for resolving disputes expeditiously. In other words, if the parties can ascertain how many cases the Mediator has handled and how many were successful, then that would save them cost and time.

 

c) Professional Training:

Another crucial consideration is the professional training for mediators. Parties should look at for or ask for the type of training that a mediator has had in the past. For instance, has the Mediator received a formal professional mediation training and for how long? Did the training the Mediator undertake met the international standard? What type of certification does he or she have? These questions are fundamental, and an upshot from this subtheme is the Mediator’s educational background or professional background.

 

d) Mediator’s Educational / Professional Background: 

We pointed out that some parties are more comfortable with an engineer handling their matter if, for instance, they have a dispute centred on or around construction, they will feel more confidant or comfortable if the Mediator has a first degree in civil engineering.

 

e) Subject Matter Expertise:

This subtheme is related to the aforementioned first consideration and professional background. One of the focal points here is that parties need to determine if the Mediator is an expert in the particular area of the dispute that has arisen or if he has the necessary knowledge of that particular industry. Because in some situations, the specific knowledge of that particular industry can make the mediation process more efficient. Though this is a bit objective, people who believe subject matter expertise are not of primary importance generally but except in specialised areas like environmental disputes, maritime, and very technical disputes. Now, asides that they are some other people who believe that is not important at all- whether the Mediator has the subject matter expertise as long as the Mediator is well trained in Mediation and has an experience as a mediator.

However, it is actually up to the parties to determine whether or not the subject matter expertise is essential because they know or better understand the disputes than anyone else.

 

d) The Mediation Philosophy or Approach employed by the Mediator:

We agreed that they are different approaches that mediators can employ or use, and in the same vein, some mediators are passive and they guide the parties, while some mediators are not. Thus the mediators can employ different styles, so parties should consider the different approaches and see what works best for their matter and choose accordingly.

 

 

3) Whether the mediators are allowed to use only the facilitative or evaluative Mediation, or can the mediators use a combination of the two meditation styles?

We pointed out that there are different types of mediation styles/ philosophy or approach. Nevertheless, in regards to this discourse, we concentrated on facilitative and evaluative. We also indicated that it boils down to the disputes’ nature in some cases, the Mediator might prefer to employ both of them or employ one of them.

 

Conclusion

We concluded that valid points raised in this discourse are crucial factors that would nudge potential users and disputants to Mediation. We also identified that finding the right Mediator is essential for resolving disputes expeditiously and effectively because making a mistake in choosing the wrong Mediator could affect the desired outcome.

Finally, once disputants have made a wise decision about their Mediator’s choice. It is to be noted that they must bear in mind that the process is entirely voluntary; hence they can choose to disengage from the process as long as they have not signed the Terms of Agreement (TOA).

 

To hear the full version of this episode, click here.

 

Reference:

The LMDC Law 2007

CEDR Mediation Handbook, 7th edition.

Professor Andrew Goodman, Orange Analogy cited at the Enugu State Multi-door Courthouse: Mediation Advocacy & ODR Awareness for Lawyers webinar held on the 30th September 2020.

International Mediation Institute (IMI) <https://imimediation.org/resources/background/choosing-right-mediator/> accessed 22nd December 2020

Chinwe Umegbolu,  Why Mediation? A Critical Review.”  (Research Gate 2019)

 

Episode 7: The Similarities between the Customary Arbitration and the Modern-day Arbitration

 

 

 

Abstract

I was thrilled to welcome Mr Johnson Amaechi, a practising lawyer in Nigeria and a graduate of the renowned Obafemi Awolowo University. We extensively discussed the following questions: ‘What is the concept or philosophy behind the Customary Arbitration’?

This question predicates the 5th Episode of Expert Views on ADR (EVA) where Mr IK Onuoma and I highlighted that they are two forms of Arbitration in Nigeria.  The discussion leads to the second question ‘What is the current development of Arbitration in Nigeria.’

 

Introduction

What is the Philosophy or Concept behind the Customary Arbitration?

We pointed out that the concept behind the customary arbitration in Nigeria dates as far back as even the formal organisation and reorganisation of Nigeria space. That is before the amalgamation of the three protectorates. They had a dispute resolution mechanisms within those colonies and even after amalgamation, for instance, in the Eastern part of Nigeria where every family had the head of families oversees the activities of the entire family, and it cuts across eastern part till date. The head of the family or the traditional head of the community sits as what is now known as an arbitrator or mediator when there are disputes within those communities or villages.

 

What is the Current State of Arbitration in Nigeria

Similarly, we revealed that they had the same situation in the western part of Nigeria (the Yoruba’s), this community were led by the traditional head known as an Oba, Olubadan or the Baale – he sits as the mediator or arbitrator to settle many disputes amongst his people. This customary or traditional system was the only means of settling disputes before the court system was introduced during the colonisation of Nigeria.

It is pertinent to point out that the palace where the Oba lives is the seat of arbitration, so this practice was re-introduced as the modern-day ADR to help settle matters due to the problems associated with the court system. However, in some communities in Nigeria to be precise Enugu State, they still have the customary courts and even have the customary courts of appeal where the appeal from the customary courts goes to, even after the institutionalisation of arbitration in Nigeria. They still practice that traditional or customary method of settling disputes, and we went on to mention that the concept of law and justice under the traditional method of settling a dispute is rooted in the spirit of oneness and in the concept of togetherness-Ubuntu which connotes “I am because you are.”

 

Conclusion

In this episode, we reaffirmed the notion that there are two forms of arbitration in Nigeria; the first is the customary arbitration; the second one is the modern-day arbitration. The earlier is determined by ‘omenala’ (the customs and tradition of the land) while the modern rules of arbitration govern the latter. We believe that the potential users that would listen to the full podcast would appreciate the attributes of the customary arbitration which overlaps or is the same with the modern-day arbitration and will not hesitate to try out arbitration or insert it in their contract agreement.

To hear the full version of this episode, click here.

 

References

Maria Federica Moscati, Michael Palmer,  Marian Roberts (eds), Comparative Dispute Resolution; Edward Elgar Publishing, 2020. p.519

Jerome, Barrett, Joseph Barrett, A History of Alternative Dispute Resolution: The Story of a Political, Cultural, and Social Movement (Published in Affiliation with the Association for Conflict Resolution 2004) p.5

Chinwe Umegbolu, Bargaining in the Shadow of the Law: The Facts of Divorce as They Stand Today (Journal Resolution Institute March 2020).

Chinwe Umegbolu, Dispensation of Justice: Lagos Multi-Door Courthouse (LMDC) as a Case Study (Ongoing research at the University of  Brighton 2018-2021).

The Psychological Dynamics in Dispute Resolution: the interplay between the id, ego, superego and apology, through the lens view of Sigmund Freud

 

 

 

Abstract

Is there an interplay between ego and apology, which are two sides of a coin when it comes to dispute resolution? I and Estar (Esther)  Olaedo Ebigbo, a First Class graduate of psychology from the University of Nigeria, who works with persons with disabilities; an inspirational singer, provided a comprehensive insight into the above-stated question. We also dealt with ‘whether people can have a subject matter bias’? The reason for this question predicates the 5th Episode of EVA where we discussed that some lawyers are yet to embrace ADR.

 

Introduction 

 

Definition of Ego

To have an insight into the above subject matter, we foregrounded the definition of ego.

The ego is a Greek word for eimi.[1] We elucidated that the ego can be described as a person’s sense of self, their sense of identity, their sense of importance and self-esteem.[2]   We validated the above submission with  Sigmund Freud’s theory-he is one of the founding fathers of Psychology, psychoanalysis to be précised.[3]

According to Freud, the ego is part of the mind that takes a decision, precisely there are three parts of the mind, which are the id, ego and superego.[4]  Thus the ego is the part of the mind that is instinctual, biologically is that part of the individual that drives the desires, their wants irrespective of the consequence.[5] However, to understand the ego, one needs to understand the id and superego, The ego operates on an unconscious level and the superego, on the other hand, is made up of the individual morals, values, upbringing, social norms and expectations.[6]

We went on to analyse the superego, which has two components the conscious and the ideal self. The conscious is that part of an individual that makes him feel guilty when they do something inappropriate- the ideal self is that imaginary perfect self, of whom one who ought to be. These constitute the superego; it takes decision by negotiating between the id and the superego.  For instance, if an individual likes sweet things and he goes past a candy store or an ice cream truck, and he wants to get the ice cream, then the superego reminds him that sugar is not good for him. What does the ego do? The ego thinks about what is actually best for an individual.[7] The person’s ego might say ‘just for today let me have one cone of ice cream that is the ego. It is that part of the mind that thinks and takes decisions. So in psychological terms, that is what the ego is and so when one talks about an apology. An apology appeals to the superego component of the mind where a person’s conscious and ideal person lies.

 

Apology

We delved into how an apology appeals to the superego component of the mind where a person’s conscious and ideal person lies-[8] thus the person does not want to be a jerk; he wants to be a nice person. He wants to show compassion and understanding. For example, where a victim of a crime offers the offender an apology especially when it is genuine, the person’s superego will be able to exact influence on the ego, and most times the person’s ego will say ‘I am going to let it go.’ Another example, if Mrs AC says sorry to Mr AC, Mr AC’s Conscience will feel guilty if he does not accept especially if it is genuine. In order words, it is his ego- that accepts or mellows down at least.

In view of this, we pointed out that in litigation when people are fighting, they do not hear each other. However, mediation offers that opportunity to sit down with each other, and if they have an excellent mediator, they will be able to listen, hear each other out. A lot of bottled up emotions, aggression, anger and frustration, can let out. Now one party can see the other party and vice versa. They will be able to acknowledge each other and understand where they are coming from, which is important for the ego because when the parties are fighting the ego is bruised, and it is threatened. Thus, the ego pumps itself up and is ready to receive blows and give blows. So when a party has an apology coming is like soothing to the ego, it’s like a release, it disarms that threatened and bruised ego.

Furthermore, even if one cannot achieve an immediate result like settlements or reconciliation, but at least they can come to a state where parties are more willing to address the fact. For instance, if Mr XM is arguing blindly, then the person’s ego is telling the person if he agrees with let’s say, Mr XY, then he is a loser, or he is stupid. He will keep arguing until he comes to a stage where that ego can function a bit more in a healthy way.

In other words, he drops the unhealthy way of reasoning and will be able to let his guard down then he can focus on solving the problem at hand. That goes a long way in making the mediation process a successful one and resolves the matter. So even when they do not resolve or reconcile they have aired their views, they know how their actions have impacted the other party, and have talked about it and know what happened and they can do better next time, it must not always end in settlement. We used one word to describe it therapeutic -is therapeutic, and it is healing. Hence, in mediation, the mediator and the opposing parties all have all levels of emotional maturity however we pointed out, that if the mediator is dealing with a psychopath; it is impossible to achieve success. Reinforcing the view that there are cases where mediation works perfectly, and there are cases where litigation is the best fit. Evidently, the above subject matter will be of great help to both the lawyers and mediators in resolving disputes.

 

The second question raised is ‘Whether people can have a subject matter bias’? The reason for this question predicates the 5th Episode of EVA where we discussed that some lawyers are yet to embrace ADR. 

We provided a concise answer to the above question by pointing out that in life in general, there is bias everywhere, especially where someone is not yet familiar with the subject matter they tend to be biased. So the human mind is such that it takes something that it does not know and shoves it into one category in mind, and sometimes, this knowledge is inaccurate. Hence, the one that takes away bias beyond every other thing is a personal experience.[1] Thus the need to give people the opportunities to experience this new subject matter is through awareness.

However, we noted that social media can be used for reasons that are not so favourably in all circumstances, but it can be used as a platform for good. It can be used to create more awareness on the above subject matter that needs to be heard and learnt because it will have an impact on society.

Power of Education:

Another point mentioned was education, not just at the tertiary level but also at the primary level- when the kids are tender. They learn about the justice system and how they can get justice by going to court; the need to also include ADR into the curriculum as a compulsory course is vital. Because it creates a balanced story rather than a one-sided story as it is the case in some schools in most jurisdiction.

 

Training:

Furthermore, we highlighted that if more lawyers train in becoming mediators, then they will also create more opportunities to let their expertise to be known. Moreover, suppose the traditional leaders, religious leaders who have a substantial influence in the society can be able to give words of endorsement towards its usage. In that case, it can go a long way to sensitise the subject matter. Thus this is the enumerated factor that would take away or solve subject matter bias when it comes to lawyers embracing ADR.

 

Conclusion

To reiterate, there are disputes, which are more suited to ADR and not suited to litigation vice versa. However, there is a caveat for potential users –which is that litigation is designed to focus on issues rather than on interest. Though this is not to say or suggest that litigation is bad. Rather the focal point made here is that litigation should not be seen as the only option or as the best option. They are other available options under the ADR mechanism. Hence the psychological and emotional factors should be borne in mind when making a choice.

To hear the full version of this episode, click here.

 

References:

Chinwe Stella Egbunike- Umegbolu, Dispensation of Justice: The  Lagos Multi-Door Courthouse (LMDC) as a Case Study (Ongoing-research at the University of Brighton 2018-2021) 89.

[1] Robin Hard, The Routledge Handbook of Greek Mythology Based on H.J.Rose’s Handbook of Greek Mythology (Published by Routledge Taylor & Francis Group 2004) p.4

[2] Thomas Metzinger, The
Ego Tunnel the science of the mind and the myth of the self (Published by Basic Books
2009) p.5

[3] Jerome Neu, The Cambridge Companion to Freud (Cambridge University Press, 2006) p.2

[4] Ibid (n2)

[5] Ibid (n3)

[6] Ibid

[7] Ibid (n2)

[8] Susan Heitler, Therapeutic Mediation: An Alternative to Costly Litigation (Published by Colorado Lawyer 1998) p.4

Stuart Blake et al., A Practical Approach to Alternative Dispute Resolution  second edition oxford university press  2012

[1] Artika, Tyner, Unconscious Bias, Implicit Bias, and Microaggressions: What Can We Do about Them? (American bar association 2019) <https://www.americanbar.org/groups/gpsolo/publications/gp_solo/2019/july-august/unconscious-bias-implicit-bias-microaggressions-what-can-we-do-about-them/> accessed 7th December 2020