Episode 13: Exploration into the Concept of Family Mediation

 

 

ABSTRACT

Questions have been asked on ‘Whether Family Mediation falls into the general mediation or forms a different class of Mediation’? To answer the above-mentioned question, I invited Mr Joseph Omorere, a Masters degree holder in Dispute Resolution from Kingston University London. He is passionate about ADR and a qualified solicitor of England and Wales. Mr Omorere has practised for over nineteen (19) years in Immigration, Crime, Civil Litigation and Employment Law.

Keywords: Alternative Dispute Resolution, Family Mediation, Mediation, United Kingdom.

 

 

INTRODUCTION

What is Family Mediation?

The concept of family mediation is different from that of general mediation. General mediation is where a neutral third party facilitate between individuals or between corporate or non-corporate bodies or between corporate bodies and vice versa to settle their disputes.

Conversely, as the name indicates, family mediation is about helping spouses resolve their differences or help to separate or divorcing couples sort out their disputes by a neutral third party known as a family mediator. The question that comes to mind is – who is a family mediator?
In simple terms, Family Mediators are trained to work with people whose relationships have broken down.

Scope of Matters Covered by Family mediation: It covers disputes over Contact arrangements,  Residence and Parental Responsibility, Child maintenance, Property, Finance – savings, debts and pension.

 

Does Family Mediation fall within the Parameters of General Mediation?

Following the above point, it could be argued that the word mediation brings both family mediation and general mediation into the same forum. Still, care must be taken not to confuse both. The difference is the safeguards that are injected into the family mediation, which separates it from general mediation. For instance, in family mediation, the mediator cannot mediate where spouses or other family members are influenced by fear of violence that occurred during the relationship. Those kinds of safeguards are not there in the general mediation; parties could leave or stop the session at any time they wish to.

To reiterate, it is safe to say that family mediation safeguards are for protecting parties who have encountered domestic violence during their relationship or parties with unequal bargaining powers in terms of resources – one party having access to more money and the other party has little or nothing. So the safeguard protects the less privileged party. It is essential to point out that in family mediation and general mediation, each party will be informed about the availability of independent legal advice during the process.

 

The Issue of Domestic Violence:

One of the main reasons domestic violence, in most jurisdiction, cannot proceed or be mediated is where there is a history of domestic violence. In the United Kingdom, the government takes it very seriously; this is because bringing parties who have been damaged or been through domestic violence to face each other again is adding trauma and fear to that particular person’s life. Though Mediation is aimed at securing a more constructive approach to marital breakdown and divorce. Nevertheless, the UK government has made it a policy that where there is a history of domestic violence, mediation can not proceed.

 

What is the Consequence of this Determination for Potential Users, and Why does this Determination Matter?

The consequence of this determination for potential users and why it matters is that Mediation is available to spouses but not at every cost. Thus, the government policy mentioned above protects domestic violence victims; hence they have to be kept away from experiencing or coming into face-to-face contact with their abusers.

In essence, while Mediation is available to all, the reverse is the case for family mediation, particularly for the aforementioned categories who have been affected or damaged even through domestic violence.

 

Advice to Potential parties and Intending Users of Mediation:

We indicated that Mediation is a very practical, cheaper, and an easy way of resolving spouses’ issues rather than going through the rigorous process associated with litigation. For example, filling form E (UK Law) is quite extensive.

 

CONCLUSION

This essay provides an exciting opportunity to advance the potential users’ knowledge on the differences between Family Mediation and General Mediation while indicating the standard precursor to their similarities: the voluntariness of the process, its party-driven nature and neutrality of the process.

To hear the full version of episode 13 of EVA, click here.

 

REFERENCES:

Edgar v Edgar  [1980] EWCA Civ 2

Mary Hayes, Catherine Williams, Family Law Principles, Policy and Practice (2nd ed, Butterworths 1999) p.554

Family Mediation-Gov.Uk, Family mediation Sorting out family disputes without going through court courthttps://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/489124/family-mediation-leaflet.pdf

Nwokolo, Kingsley, To What Extent Is The Mediation Process Useful to a Victim Of Domestic Violence When The Dispute Is Over Finances/Children Upon Separation Or Divorce? p. 24

Episode 12: Enhancing Access to Justice in Enugu through the ESMDC – Under the Leadership of Mrs Caroline Etuk

The Director of ESMDC- Mrs Caroline Nene Etuk.

ABSTRACT

I was excited to welcome Mrs Caroline Nene Etuk, the former Director of the Lagos Multi-Door Courthouse (LMDC), the first court-connected Alternative Dispute Resolution Centre in Africa. She obtained a Masters Degree in Law from Kings College, University of London. Mrs Etuk was involved in legal practice until 2006 when she joined the Negotiation and Conflict Management Group (NCMG) as Centre Manager of the LMDC. Additionally, Mrs Etuk was accredited as an international mediator by the Centre for Effective Dispute Resolution (CEDR) in 2008.

She is currently the Director of the Enugu State Multi-Door Courthouse (ESMDC) from inception (July 2018) to date. As the ESMDC Director, she develops all its operational procedures, templates and training.

Mrs Etuk has attended various courses and conferences in the United Kingdom, and the USA. She has also authored and presented papers at both national and international ADR conferences. In this episode, we critically examined the following questions:

  1.  To what extent has the ESMDC enhanced access to justice for Enugu State Citizens?
  2.   In your view, have Lawyers in Enugu State accepted ADR?
  3.   How do Lawyers bill their Mediation clients?
  4.   What is your Advice for Potential Users and People who want to Pursue an ADR career?
  5.  What is the Career Progression for a typical Mediator?

We concluded by touching on how the ESMDC has helped enhance access to justice for the citizens and how lawyers can still make a meaningful living by billing their clients- following a well-outlined structure of billing clients by the ESMDC.

 

Keywords: Access to Justice, ADR, Mediation Advocacy, Careers in ADR, Multi-Door Courthouse, Enugu State Multi-Door Courthouse (ESMDC); Lagos Multi-Door Courthouse (LMDC), Nigeria, United Kingdom.

 

INTRODUCTION

The ESMDC was established in Enugu State, Eastern part of Nigeria, due to litigation’s numerous problems like cost, congestion of the court’s dockets and delay. It is essential to point out that Justice P.N Emehelu spearheaded this establishment in a bid to curb these problems. In her efforts to ensure the sustainability of the newly established ESMDC, she invited experienced hands in the field, the former Director of the LMDC Mrs Caroline Etuk to start up the centre in Enugu State.

 

To what extent has the ESMDC enhanced access to Justice for Enugu State Citizens? 

The ESMDC was established in July 2018, approximately two years and four months old. The scheme replicated the Lagos Multi-Door Courthouse (LMDC) framework. Though the ESMDC is still at the nascent stages of their development in terms of how far they have gone in enhancing access to justice or assisting Enugu State’s citizenry to gain access, not just to the court but to the other dispute resolution methods of resolving their disputes. They have made a considerably good start; their caseloads stand at about 740 cases as of the end of 2020; however, other things are related to the extent of access to justice and how impactful it can become. For instance, the acceptability of ADR are challenges that every jurisdiction in the world has had to deal with or are currently dealing with.

The ESMDC faces the same challenges regarding getting the legal community to accept and embrace ADR. Aside from that, they are also dealing with the citizenry themselves, who have to choose whether to go to court or come to an ADR process at the Multi-Door Courthouse (MDC) bearing in mind that the decisions the citizens make are informed by what their lawyers say. In essence, there is much awareness that needs to be done.

 

In your view, have Lawyers in Enugu State accepted ADR?

Mrs Etuk elucidated that ‘lawyers not accepting ADR is not a problem that she was unfamiliar with’ as she was ‘director of the LMDC for ten (10) years and the same issue has been raised at several conferences and workshops she attended worldwide’ – though the ESMDC is tackling these challenge head-on by working with the Enugu Branch of the Nigerian Bar Association (NBA).

Nevertheless, she revealed that when the lawyers talk about ADR on the face of it, there is always an assent that ADR is good, but when it actually comes to matters being referred in court (the Enugu state High court rules 2020 stipulates under Order 25, Rule 8 that a judge is empowered by the rules to use his/ her discretion to refer matters) by the judge or magistrate many lawyers will make an objection to a referral, and this might be the same person that has said ‘yes I admire ADR’, but when it touches him personally, consideration and decision become different. It is not unnatural because many lawyers feel that their matters going to ADR would affect their income. So it boils down to the issue of what remuneration will he get at the end of each matter. It is a matter of how does ADR personally impact the lawyer’s finances.

 

Mediation Advocacy Training?

It is a matter of how much more funding, time and effort can be thrown into creating awareness and training lawyers on what to do in a mediation fora. Many lawyers are quite ignorant of what happens in a proper formal mediation environment. They do not know what to expect, they have not had exposure to that type of dispute resolution, and do not know how to identify their relevance within that space. Hence raises prevalent questions like where does that place a lawyer? Does he get paid his full fees? Or does he get paid half the fees? How does the lawyer structure his practice around this sort of eventualities?

Indeed, all these are learning competencies that lawyers must embrace to feel comfortable and useful and run their mediation representation profitably? So those are all the issues that are addressed during mediation advocacy training.

By and large, Lagos is ahead in the sense that they had started a mediation advocacy training with Professor Andrew Goodman at the ‘Standing Conference of Mediation Advocates (SCMA)’ which has helped a lot because lawyers now attend the programme and they have become conversant with what to do and how to be profitable in an ADR environment. Thus, they had about twenty-five (25) lawyers who did the training and another twenty-five (25) lawyers in a few months would partake in the upcoming training; so that is like a pool of ADR activist and nuance expanding, so that is what the ESMDC intend to do in Enugu too.

Validating the last statement made above, the ESMDC have scheduled a Mediation advocacy training for April 2021.

 

How do Lawyers bill their mediation clients?

In different jurisdictions, legal practitioners bill in different ways. In Lagos State, their billing process is different from that of Enugu State. A significant part of the legal community in Enugu depends on appearance fees; what this means is that whenever a client matter comes up, he/she is supposed to pay the lawyer a certain amount of money to cover his transportation and disbursement. Now with a billing structure like that, it is bound to reason that the more times the lawyer attend court, the more payment he/she gets. However, there is a fee shared, but for most of the lawyers the fee might be paid upfront, but the continuous billing is what adds up to ensure that the lawyer gets something every time his case comes up. Thus, for that type of billing structure, ‘ADR is the enemy’ in the sense that while some of the lawyers are trying to make sure that litigating a matter is lengthened, on the contrary, ADR is cutting it short.

The mediator’s objective in the Multi-Door Courthouse (MDC) is to ensure that matter ends as soon as possible. The focal point here is that many lawyers except for the well-constituted law firms send their juniors to the MDC for mediation, which is not so right, or many of them abandon their clients entirely.

The line of thinking behind this is that most lawyers are aggravated that their clients have chosen to settle at the MDC. In most cases, they will practically instruct their clients to go to the mediation session without them that once they have settled, they/he can come and signup on the Terms of Settlement (TOS).

Following the above reasons, it is fair to imply that the lawyer’s behavioural pattern connotes or implies that they believe that settling through ADR via MDC route, is a waste of their time. Another scenario could be after the case has been mentioned in court and maybe a few preliminary applications are taken, which is legal time and work being put in there, at that stage, the court refers the case to the MDC, and they have the first session. By the second session, the matter is settled because the parties have agreed on something. Now, where does that leave the lawyer? Who has given a total bill of 2 Million Naira (equivalent to £3,748.68), perhaps expecting that the case will go on for a year or two; now three months into the time and the case was settled?

Assuming without conceding that the client has given the lawyer a Million Naira as advanced payment and there is a million naira still outstanding and say this matter has now been settled. The client refused to pay the outstanding balance because it was not concluded in litigation as agreed. Moreover, the client insists that he /she took part, and the lawyer hardly said a word and now wants to collect the remaining million Naira. It begs the question for doing precisely what? So that is an issue, the lawyers definitely would feel short-changed.

Hence structure needs to be built around this – the ‘lawyers’ best thing to do is always expect an eventuality; to take that eventuality into account when negotiating with a client. For instance, in line with the ESMDC billing structure, if the 2 million Naira is for two years, the client pays the lawyer one million Naira. If the matter goes for mediation, and it is settled, what the lawyer will be getting is another 30% of the said sum. So there is an agreement, or there is a structure already in place so if the matter goes to the MDC; perchance it is settled both the party and lawyer knows that this was the agreement reached ‘ab initio’. If the matter settles, the lawyer gets 30% of his balance, like 300,000 Naira (equivalent to £568). However, if the matter does not settle, the matter goes back to court, and the trial continues, the lawyer gets his balance which is a full 1million Naira at the end.

Now the above-stated examples/scenarios have underlying psychological issues playing out. So, if a lawyer knows that he is better off getting the 30% that is the 300,000 naira and ending the case which is probably a terrible case and if it goes on to trial and gets concluded in a trial. He might lose the case, and the downside of losing a case is usually not getting referrals from these particular clients. Thus, it is better for the lawyer to get this 30% or 40% they agreed. But If he throws himself into the process and becomes a vital part of the process to ensure that his clients can get a good deal out of the mediation by bringing in a lot of creativity, he brings a lot of his experience. He becomes an ally of the mediator in helping the parties resolve the matter but if the lawyer feels “I have a lot that I need to do with this 1 million naira that is left he becomes a nuisance in the mediation.”

In sum, all these are underlying issues the lawyer is not voicing out. However, the mediator has to be skilled enough to unearth and realise these underlying psychological issues (pun intended) playing in the background that hinder the process.

 

What is your advice for Potential Users and for people that want to pursue a career in ADR?

For potential users or users who have a dispute, they should try and avail themselves of being at a mediation session. Moreover, once at the mediation session, they should learn the ropes. They can get that as an experience because once at mediation, they now know how it works. The next time at a mediation session, they are more proficient in negotiating and getting the best deals. On the other hand, for people to pursue a career in ADR is know-how, they need to attend practice-based training, not theoretically training. 

Additionally, the person’s seeking to pursue a career in ADR need to have structures in place they need to attract ADR / Mediation business. So they need to expand their network; people need to know they have the expertise or If they are industrialised, their niche will be where they are more proficient in and that they are available. For instance, they can do pro-bono to get referrals and do their best not to take up matters for which they do not have competencies if they are in a massive mediation with high stakes there is a lot to lose. They need to get a co-mediator who is more experienced and versatile to ensure that they give the parties the best deal.

 

What is the career progression for a typical Mediator? 

We pointed out that there is no laid down career progression for a typical mediator because, in the past, some people had wanted to close down their law business and face mediation alone. However, they were advised not to because they cannot sustain only on mediation practice because of the way the Nigeria economy is. Nevertheless, if they are legal practitioners, they can have a unit in their law practice that is an ADR unit to start from there. 

 

CONCLUSION:

 This paper has been able to reveal that ESMDC has helped enhanced access to justice for the citizens at the same time holistically dealing with contemporary issues facing ADR through the MDC vis a vis legal practitioners not embracing ADR due to the rudiments involved in billing their mediation clients. This paper has also established that intending persons/people who want to pursue an ADR career should have a law practice (if they are lawyers) as a buffer and start the mediation programme and let it grow. However, one can also develop a career in ADR with a law degree.

Nonetheless, in terms of expertise, it needs to be built upon, there is nothing that can compromise for that.  However, court-connected programmes are like a market for disputes. If one becomes a member of the panel of neutrals they should try and get as many cases as possible for the purpose of honing their skills in the area; as the industry grows, they will grow with it. Like in the UK; some people are just mediators/master mediators, and they earn quite a lot of money for doing what they do, but in Nigeria, they are not just there yet.

To hear the full version of episode 12, click here.

 

REFERENCES:

International Bar Association,  Caroline Etuk <www.ibanet.org accessed  11th February 2021.

Chinwe Stella Umegbolu, Dispensation of Justice: Lagos Multi-Door Courthouse as a Case Study. (Ongoing research at the University of Brighton 2018-2021) accessed 8th February 2021.

Legislation-

Enugu State High Court Rules 2020

 

 

 

Episode 11: Careers in ADR with Mrs Ronke Koku.

Seasoned Mediator- Mrs Ronke Koku

 

ABSTRACT

In this episode of EVA, I raised the following questions:

a) How did you start your Journey as an ADR Practitioner to be precise Mediator?

b) Can anyone be a mediator?

c) Do mediators require a formal education?

d) Do mediators need to be knowledgeable in Psychology?

e) How do you plan your sessions?

d)  What is the meaning of Pre-Mediation Session and Caucusing?

f)  How do you get difficult parties to open up during Mediation?

g) What models of mediation do you use?

h) Which is simpler- mediation or litigation?

i) What is your advice for people who want to start a career in Mediation or ADR?

I had the opportunity to discuss the questions above with Mrs Efunronke Omolara Koku, a notary public of the Federal Republic of Nigeria, who learnt the ropes of the legal profession from her late father Josiah Akinola, a profound legal icon. She incorporated Ronke Somefun & Company Legal Practitioners and later built a career in Alternative Dispute Resolution. She is a qualified International Accredited Mediator from the Dispute Resolution Centre, Bond University, Australia, an International and Cross-Cultural Negotiator, ESSEC Business School, an Associate Member of the Chartered Institute of Arbitrators, United Kingdom (Nigeria branch), and a member of the Institute of Chartered Mediators and Conciliators. Some of the organisations she had provided mediation training are the staff of Central Bank of Nigeria and Nigeria National Petroleum Corporation (NNPC).

Additionally, she organises training courses in workplace mediation, family mediation, peer mediation, and youth development programs. Her passion for empowering the youths in any way possible led her to establish ‘The Doors Empowerment and Initiative’, an NGO whose aims/objectives include, but not limited to, preparing the Youths for the future through motivational Talks and skilful careers, amongst other projects. She believes that if the transition of a child to adulthood is not well managed, a great tendency that such child will fall prey to negative peer pressure, the effect of which will be devastating on the society. Some public schools and tertiary institutions in Lagos state have benefited from this initiative.

Her book, “Stand out or Blend in” … an insight into peer pressure helps the thinking and behavioural pattern of youths on how to resist peer pressure. She believes mediation skills are 21st-century weapons to handle present-day behavioural attitudes. Through her encouraging words and book, many persons are better equipped today.

Finally, her love for sports led her to start a Sports career; she is currently a Sports and Society Facilitator and an Accredited Sports Marketer.

 

INTRODUCTION

This essay set out to understand an established ADR practitioner’s view and experience. Hitherto, aims to enlighten people on pursuing a first career in ADR and in what best ways to pursue that. Hence, the invitation of a seasoned ADR practitioner who has forged a career path in the subject matter to tell her story in a bid to inform or encourage other people to start a career in ADR.
How she started her journey as a Mediator:

Mrs Ronke pointed out that she got to know the depth of mediation through a senior learned colleague, an accredited mediator, Mrs Shola Adekpemire, who advised her and one other friend to pick up ADR as a career. Interestingly, that same year they approached Mrs Adeyinka Aroyewun the Director of LMDC, who immediately referred them to ongoing training by the Negotiation & Conflict Management Group International (NCMG International) in conjunction with the Bond University Australia. After the training, Mrs Ronke started mediating cases for the Citizens Mediation Centre (CMC) Lagos State Nigeria, and later started giving speeches at seminars, particularly in peer mediation.

She vividly remembered the venue of her first speech, which was at the Lagos State University (ADR session) on peer mediation. Within a few years, she was appointed by the Lagos Multi-Door Courthouse (LMDC) as a mediator to handle a variety of cases. Later on, she incorporated her own ADR firm with her partner’s help; they started handling ADR cases.

 

Can anyone be a Mediator?
She responded that anyone can be a mediator as long as they go through the training.  Having a formal education and training is essential and compulsory to be a professional mediator.  More so, doing the training makes a difference, particularly in handling parties confidentiality, which is a binding force in mediation.
How do you get difficult parties to open up during Mediation?
She revealed that before the pre-mediation session or during the session, a mediator must have known / ought to know the four temperaments tests. Once they know these temperaments then they can handle difficult parties.
Do mediators have to be knowledgeable in Psychology?
It is imperative to have a certificate or training in psychology to be a good mediator. Nevertheless, that does not mean that mediators who do not have certifications or training in psychology are not good.

How do you plan your Mediation Session?

The parties determine what time they will want their session to hold. However, I introduce the participants, outline the mediation process and lay down ground rules to guide the process.  

 

Which is simpler Mediation or Litigation?

Every case is unique, and it requires its own approach to find an efficient and favourable outcome. Mediation has its advantage and litigation has its advantage. However, without any bias, in modern times, people try to avoid litigation. It is time-consuming, unpredictable, expensive, and until a judge decides a case, parties can never be sure of the outcome.

Personally, I prefer Mediation because it is faster, more straightforward, and reduces the court’s dockets. It is imperative to point out that in Lagos State, almost all lawsuits are required to be mediated before going to the trial. However, not all cases can be mediated.

 

What is your advice for people that want to become a Mediator and for potential users?

Like any other career, one can make good living being a mediator. Every mediator’s joy is to settle the parties amicably – there is no greater feeling than the satisfaction that the mediator gets from helping people resolve their disputes.
In essence, everyone can be a mediator, there is good money in it, but they must be committed, have the passion, and have a listening ear; effective listening is the greatest weapon of a mediator.

CONCLUSION
This essay has discussed the reasons for pursuing a career in ADR, and to be precise, mediation. It also highlighted that the narratives are changing for the present generation; more people in Nigeria and other jurisdictions like the United Kingdom, America and Australia are moving towards mediation and starting up their first career or changing their careers to ADR.
To hear the full version of this episode, click here.

 

 

 

REFERENCE:

Art Hinshaw,  ADR as a First Career (Mediate.com 2014) <https://www.mediate.com/articles/HinshawAbl20140905.cfm> accessed 28th January 2021.