Month: March 2021

Oyo State Multi-Door Courthouse (OYSMDC) as it stands today -Under the Leadership of Mrs Anuolu Gade

Published by Chinwe Egbunike-Umegbolu
Mrs Anuolu Gade- Director of OYSMDC

Mrs Anuolu Gade- Director of OYSMDC.

ABSTRACT
I was delighted to welcome Mrs Anuolu Gade, the Director of Oyo State Multi-Door Courthouse (OYSMDC) and a member of the Governing Board of OYSMDC. Mrs Gade obtained a degree in Law from the University of Ibadan in 1998 and was called to the Nigerian Bar in 2001. She worked at the Public Prosecution Department for ten (10) years as a Prosecutor. She also worked as a Mediator at the Oyo State Citizen Mediation Centre, Ministry of Justice, for about six (6) years and later rose to become a Deputy Director in the Mediation Centre. 
Mrs Gade is a Fellow of the Institute of Chartered Mediators and Conciliators, Nigeria, an Associate Member of the Chartered Institute of Arbitrators, UK, CIArb and a steering committee member Covid-19 Alternative Dispute Resolution (ADR) Initiative (CADRI).

In this episode, we discussed the following questions :
1) When and how did the OYSMDC commence?
2) Has it been able to enhance access to justice for the Citizens of Oyo State?
3) How are matters referred to the MDC?
4) Is there any measurable difference or impact on the cost of settling disputes compared to litigation?
5) What is your advice for potential users or users of the OYSMDC?
When and how did the OYSMDC commence?
The OYSMDC came onboard precisely or was established in March 2018. This was necessary because the court dockets were overloaded with cases, thereby depriving users or litigants of their fundamental right, which is to access the court in a timely fashion. Akin, the MDC is an ADR centre that offers ADR processes such as Mediation, Arbitration, Conciliation and other Hybrid processes.
Following the above point, the essence of MDC’s establishment was to promote easy access for the people and resident of OYSMDC.
 
Has the OYSMDC been able to enhance access to justice for the citizenry? 
We affirmed that OYSMDC had enhanced access to Justice for their citizenry because mediation or ADR mechanism is a less formal, cost-effective, timely process, unlike litigation. Litigation is expensive, it’s cumbersome, and it could also be tedious.
Additionally, when we talk about litigation, especially in Nigeria, it can be very frustrating, and it could also make the litigants impoverished because it is expensive. Not many people can afford litigation, but the ADR mechanism that the OYSMDC offers is user-friendly. It is quick, cheaper, and builds and preserves the relationship. For example, business relationship, the family relationship amongst other relationships can be preserved, unlike litigation like Yoruba’s will say, “you do not go to court and come back as friends; you end up as permanent enemies.” These are some of the benefits of the MDC, and apart from that, it enhances businesses in the state just within a short time when people bring their cases to the MDC within one or two sessions, matters are resolved amicably. It helps to promote quick and easier resolution in commercial activities in the states.
Is there any measurable difference or impact on the cost of settling disputes at the OYSMDC compared to litigation?
When parties come to the OYSMDC, they are asked to pay an administrative fee more like a stipend- very cheap as low as 5,000 Naira (equivalent to £9.40) from both parties. It takes care of logistics, services and processes. However, the Litigation fees, which is about 100,000 naira- 500,000 Naira (though varies depending on the law firm and state), cannot be compared with the early mentioned fees.

Therefore, it is submitted that there is a great impact on the cost of settling disputes at the OYSMDC compared to litigation costs.

What is your advice for potential users of OYSMDC?
We pointed out that potential users should try as much as possible to patronise the MDC. After all, they stand to gain so many benefits when they do so because they have a panel of neutrals. These are experienced ADR professionals from all walks of life in various fields like engineers and bankers who would attend to their cases. Thus when they bring their cases to OYSMDC, they do not lose anything at the end of the day. They get quick and timely solutions as they have various civil cases from tenancy, commercial, land cases, banking, investment and employment cases.

Additionally, one of the many benefits of ADR is that parties have to sign a confidential agreement, including the mediators. Lastly, at the end of each matter where it is resolved, parties enter into a resettlement agreement. After that, such an agreement is taken before an ADR Judge who would not fault such an agreement-rather would endorse it.

Validating the above assertion is section 21 (1) 1, 2 of the OYSMDC 2017, which states ‘that where an ADR Judge endorses such an agreement, it shall be deemed enforceable as a judgement of the High Court (H.C).’

How are matters referred to the MDC?


There are three different ways by which matters are brought into the MDC. The first one is the Walk-In route-anybody can come in by themself with or without a lawyer; they do not necessarily need a lawyer.

The second method by which a matter can be brought to the MDC is through Court-Referrals– the court refers cases that are amenable to ADR to the MDC. The third and the last method of bringing cases to the MDC is by Direct Intervention; the directors have been empowered to invite disputing parties to the OYSMDC to settle their disputes amicably.

CONCLUSION
This work has been able to analyse how the OYSMDC commenced. It has provided a detailed account of the cost implication of settling disputes through the MDC, which is way cheaper than the cost of litigation. This work concludes with the significant points raised by the director of OYSMDC on the current satisfaction with the system while revealing why potential users or disputants should embrace the scheme.
To listen to the full version of Episode 17 of EVA, click here.

Practical Negotiation Skills with Mrs Achere Cole

Published by Chinwe Egbunike-Umegbolu
Mrs Achere Cole

Mrs Achere Cole – Deputy Director / Head of Operations of the LMDC

ABSTRACT
In today’s EVA episode, I was pleased to welcome Mrs Achere Cole, the Deputy Director and Head of Operations of the Lagos Multi-Door Courthouse (LMDC) and Secretary to the Governing Council of LMDC. She holds a master’s degree in Public Policy and Management from the School of Oriental and African Studies (SOAS) at the University of London and a second master’s degree in law from the University of Lagos. She was called to the Nigerian Bar in 2003 and is a CEDR UK Accredited mediator. 
Mrs Achere has national and regional experience in building ADR mechanisms and capacity. She consulted for the Judiciary of Kenya and the International Development Law Organisation on a project to support the Sustaining Judiciary Transformation Blueprint of Kenya’s Judiciary. She was an External Evaluator for a Court Annexed Pilot Project that was commissioned by the Kenya office of the IDLO and International Commission of Jurists, the Kenya Human Rights Commission and the High Court of Kenya for the family and commercial divisions of Milamani Law Courts in Nairobi, Kenya.
She was part of the pioneer staff that midwifed the Lagos Multi-Door Courthouse’s establishment under the Negotiation and Conflict Management Group (NCMG). She was a trainer, assessor and mentor for a Justice for All (British Council) project on “increasing access to mediation and legal services for poor people”. She has also provided training for Mediators and Staff of the Kaduna and Abia Multi-Door Courthouses under a World Bank assisted project to expand ADR institutions in Nigeria. Mrs Achere was part of the team that trained 37 staff of the Kano Multi-Door Courthouse to enable the KMDC to start Operations under the Security, Justice and Growth Programme of the British Council.  She was Head of Human Resources and Administration of Capital Partners Limited and was Workforce Assessment Team Lead as part of a team of consultants responsible for the Bank PHB Retail Strategy Implementation Project and is a trained election observer by the Kofi Annan International Peacekeeping and Training Centre, Ghana.
Mrs Achere teaches Mediation and Communication courses at the LMDC and is also a Restorative Justice Trainer. She is a proficient and interventionist Mediator in fields that cut across commercial contracts, family, criminal and employment disputes.
We critically discussed the following questions:  
A.  Why Negotiation? 
B.  What are the benefits of Negotiation?
C.  What are the skills necessary for anyone to engage in Negotiation?
D.  What is your advice for potential users of Negotiation and people who want to pursue a career in Negotiation or as a Negotiator?
INTRODUCTION

Why Negotiation?
Negotiation is the first step in dispute resolution. It can be defined as the interaction between two people whereby they have an opportunity to resolve their dispute, preferably in an interest-based fashion. For instance, organisations can work with one another and resolve their dispute themselves and even individuals, which is the essence of negotiation before moving on to other dispute resolution mechanisms that involve a third (3rd) party. Hence, it has the potential to put the parties interests together and settle between themselves privately before they involve any third party neutral.
What are the Benefits of Negotiation?
It is private and a flexible form of dispute resolution so can be done under any circumstances. What that means is that it can be done anywhere; It can be done using a system that has been designed by the parties. It is not rigid and has a greater possibility for a successful outcome except when the parties adopt a positional-based approach instead of an interest-based approach. This possibility of a successful greater outcome leads to a win-win solution in which both sides are happy to get results that are beneficial to their interest.
Additionally,  it provides parties with the opportunity to design an agreement that will serve their interest. For instance, they can design whatever solutions they want and document them, and that becomes the contract between the parties in which, of course, can be enforced in the court of law, and that design comes from either party. It enhances the relationship between the parties, which is really important in today’s society, and much less expensive in comparison to other mechanisms of dispute resolution.
Disadvantages of Negotiation
When two parties come together to resolve a dispute and one party does not understand interest-based position versus positional based negotiation, they tend to negotiate in a positional fashion which may lead to a breakdown of negotiation (interest-based v positional based negotiation). This means that one party is keen on insisting on a particular outcome and not interested in the other party’s interest or discussing it. This is one of the many disadvantages of Negotiation.
The skills necessary for anyone to engage in Negotiation 
Preparation: The most skill required is preparation; that is the need for a negotiator to prepare for the meeting, study the history of the relationship, what kind of negotiation they are involved in and what kind of dispute.
Problem analysis:  Another important skill required by a negotiator is how to analyse the problem or issues raised in the dispute. Thus, the need to stand out of the dispute and look at it as an observer or with a fresh eye and analyse the problem. To see what really caused the dispute and determine the interest of both sides and what are the possible interest and what are the possible solutions is critical.
Active Listening: This is an equally important skill set to gain as a negotiator. Most times, people listen with the intention of responding to what the other person is saying. It is essential to learn to listen as a negotiator, and that is why it is called active listening, taking out any thoughts about what the parties are going to say or meant to say. Instead of doing that, the negotiator needs to listen to understand and summarize or rephrase what they have just said to ensure that you understood what they have said that will make or show the parties know that they were heard. Finally, the essence of active listening is that the party feels that the negotiator has listened, and that is a skill set which a negotiator needs to learn and develop.

 

Advice for Potential users and people who want to pursue a career as a Negotiator or in Negotiation?

We pointed out that the need for adequate training cannot be overemphasized. To reiterate, the importance of getting appropriate skills – like active listening, questioning skills, decision making and problem analyses are essential tools that are all built into the negotiation training.
In furtherance, potential users or users should not go into a meeting with a positional based approach rather go in with an interest-based fashion or approach to their negotiation.
CONCLUSION:
This work was able to provide a holistic view of Negotiation and its intricacies. We hope potential users would take on board the vital points raised herein and put them to good use by opting for ADR, particularly Negotiation as the case may be.
To listen to the full version of Episode 16 of EVA, click here.

Careers in ADR with Professor Emilia Onyema

Published by Chinwe Egbunike-Umegbolu

Professor Emilia Onyema

ABSTRACT
I was super excited to welcome Professor Emilia Onyema, a Professor in International Commercial Law at SOAS, University of London. She is a Fellow of the Chartered Institute of Arbitrators, qualified to practice law in Nigeria, and as a Solicitor in England & Wales.
Professor Onyema is a member of the Lagos Chamber of Commerce International Arbitration Centre (LACIAC) and the Lagos Court of Arbitration, the Advisory Committee of the Cairo Regional Centre for International Commercial Arbitration (CRCICA). She presides over the Advisory Committee of the Libya Centre for International Commercial Arbitration. She is also a member of various professional associations, including the Nigerian Bar Association and the International Bar Association. She convenes the “SOAS Arbitration in Africa” conference series and publishes the Arbitration in Africa Survey and the African Promise’s co-author; she has published various books and articles on Alternative Dispute Resolution (ADR), particularly on Arbitration. 
Professor Onyema was awarded the Mentor of the Year 2020 by the African Arbitration Association (AfAA); She has mentored so many people over the years and still mentoring, including my humble self, and one of the main reasons I am researching in ADR- Multi-Door Courthouse (MDC) in Nigeria.
In this episode, we discussed the following questions:
a) What is ADR?
b) How did you start or commence your journey as an ADR Practitioner/ Academia?
c) Throughout your journey as an ADR Practitioner/Academia, have you had any cause to doubt the effectiveness of ADR, to be precise, Arbitration?
d) What is the Career Progression in Arbitration?
e) What is your advice to someone that wants to pursue a career in Arbitration?
f) What is your advice for potential users of ADR?
We concluded by revealing the need for professional training as an arbitrator while touching on what potential users and persons who want to pursue a career in ADR, particularly arbitration, should look out for.
Keywords: Dispute Resolution, Alternative Dispute Resolution, Arbitration, Access to Justice; Careers
  • I dedicate this episode to my mum-Mildred Obiageli Egbunike (Nee Bosah), who passed away on Saturday 6th March 2021. My angel, you looked forward to listening to this session with Prof, but the good Lord took you to be with Him and watch over us. Love you forever mum -till we meet to part no more! Rest in the Lord.

 

 

INTRODUCTION

This essay set out to understand an established ADR Practitioner / Academia’s view and experience in the field of ADR – arbitration to be precise.
It aims to enlighten people on the following -that litigation is not the only option, there are other mechanisms that they can opt for, the need to pursue a career in ADR, and the best ways to go about that. Hence, the invitation of an erudite Professor who has forged a career path in the subject matter to tell her story in a bid to inform or encourage other people to tow the same path.

 

What is Alternative Dispute Resolution (ADR)?

The term  ‘ADR’ clearly begs the question of Alternative to what? If it is looked at as an alternative to litigation, then every other method of resolving disputes outside of litigation in the court system will fall within ADR.  Then again, it is an Alternative to Adjudicative processes of dispute resolution. It means that anything outside of Litigation, Arbitration or Adjudication, or anything where a third party makes a decision for the parties-these falls within ADR. So it is always helpful to clarify what the Alternative is or is related to.
Professor Onyema emphasised ‘that quite a lot of Arbitration lawyers like herself will not consider Arbitration as falling within ADR because it is a process wherein a third party decides or makes a decision for the parties, unlike Mediation or Conciliation where the third (3rd) party supports the parties or the disputants to decide for themselves.’
Thus in Arbitration, the parties can get a private judgement; they can get an award which the court will back up and enforce. On the other hand, in Mediation, what the parties get is still a settlement agreement that the parties have signed onto, which they need to go to the court to accept before they start the enforcement process. In other words, Mediation is not self-enforcing akin not the same value as a Judgement. It does not have a res judicata effect, so some scholars resist Arbitration being looped in the same category as Mediation or Conciliation processes.
How did you start or commence your journey as an ADR Practitioner/ Academia?
Professor Onyema revealed that she started out as a legal practitioner (called to the Nigerian bar in 1989, almost twenty (20) years ago), and one of the things that introduced her to Arbitration was the first time she acted as a Counsel in the Construction disputes in an Arbitration. That was what intensified her interest in arbitration.  It is essential to point out that in those days, Arbitration or ADR was not taught as part of Nigeria legal degree, not even in law school.
 In other words, she did not start sitting as an Arbitrator or was not actively engaged until she came to the United Kingdom to do her PhD. She had participated in the Chartered Institute of Arbitrators in early 2000; they had a mentoring scheme and had a mentor. She sat in one of his Arbitrations; that was basically how her journey in Arbitration commenced.

 

Throughout your journey as an ADR Practitioner/Academia, have you had any cause to doubt the effectiveness of ADR, to be precise, Arbitration?

Mediation is a very useful tool that empowers the parties. For instance, it is like thinking of the information age, which is now, people are bombarded by so much information because they take on so many responsibilities. They need to sieve through all the information they are receiving. They are forced to think, at least critically engage with the information they are receiving to know whether it makes sense for them to believe it and what should they do with it, and that is what mediation does for the parties.

Essentially in mediation, parties do not effectively hand over their dispute to legal representatives; they are engaged in that dispute. Mediation looks at the parties and what would be beneficial to them.  Hence, most times results in a win-win situation because sometimes it is just an apology that is all that a party wants or in commercial mediation might be a case of terminating the contract or one of the disputing parties can supply something else. So there are imaginative solutions with the commercial outcome in view.

On the other hand, in Arbitration, depending on the jurisdiction and depending on how important that particular dispute is to the parties, it might be that they are knowledgeable either in the law or in the subject- matter of the dispute, then they can make decisions in a timely fashion.  Hence for commercial parties, the disputes must be resolved within a very reasonable time. However, in the Nigerian Jurisdiction, going before the judiciary- the delay or the time it takes just to go through and get a decision is horrendous; it is difficult. Unfortunately, the resultant effect is that litigants might not be satisfied with the quality of their judgment.

On the contrary, one of the good things about Arbitration is that arbitrators make reasoned decisions. For example, an Arbitrator will not say, ‘I prefer Chinwe’s submissions to Emilia’s submissions, so Chinwe wins.’  Then again, it begs the question, how did he arrive at that decision? Hence, the arbitrator has to read the judgement or get to a decision so that it actually makes sense. The parties can see why they lost.

However, not in all court judgements, they get that- in some Jurisdiction, reading the court’s judgement, it is copy and paste. And the question that comes to mind will be, ‘I know what the claimant/respondent said. But how did he/she apply the law to arrive at a decision? How did I lose? On the other hand, Arbitration is expensive because the parties pick up all the cost, while mediation is not as expensive as the former. However, they are expensive mediators, but meditation is a lot faster. How then would parties know which of the mechanisms to opt for?

We believe that parties need to understand what they are disputing over and then have a good understanding of what they want out of that dispute the sort of outcome they want. Then all of that is a basket of all sorts of considerations that parties need to engage with to enable them to determine which of the processes/mechanisms or dispute resolution tools will be best for them.

What is your advice to someone that wants to pursue a career in Arbitration?

She pointed out that engaging in an area of practice does not have to be only legal practice. They can be doctors, engineers, or accountants; disputes arise from all various human endeavours. Thus, people seeking to pursue a career in ADR should carry on doing what they are doing but get some professional training in resolving disputes. 

 

What is your advice for potential users of ADR?

Users need to know their disputes, know what they want to get out of them, and not be afraid to try new people. Onyema stated that a lot of work has been done on diversity. However, for those interested in diversifying dispute resolution- the decision-makers are afraid of appointing a new person they have not used before. The critical thing is that somebody has to take that initial risk, so it is a supply and demand thing. Suppose arbitrators are getting themselves prepared and working hard and preparing to get that appointment. Those who make an appointment have to take that risk.

Hence, it is in the parties hands to widen the pool; they have to be willing to risk appointing a new person, a newcomer who has done some work or has some experience in other fields. Akin to giving equal opportunity- some form of equality to everybody, which will ultimately benefit disputants much more because they will have many more people than they can call upon to resolve their disputes.

 

 

CONCLUSION

This essay has provided a contemporary view on why arbitration does not fall into ADR while at the same time highlighting its effectiveness. This essay has also provided a well-detailed analysis of the benefits of arbitration, the need for arbitrators to be visible and uncovered the hoodoo in getting professional training as an arbitrator.

To hear the full version of episode 15 of EVA, click here.

 

References:

SOAS University of Law, School of Law: Professor Emilia Onyema <https://www.soas.ac.uk/staff/staff31559.php> accessed on 3rd March 2021

African Arbitration Association <https://afaa.ngo/page-18083> accessed on 2nd March 2021

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.

 

Snapshot of Alternative Dispute Resolution (ADR) in Botswana

Published by Chinwe Egbunike-Umegbolu

Mr Edward W.F. Luke II FCIArb, FSIArb, FBIArb, MCIArb,Dip Int Arb (CIArb)

 

ABSTRACT

I was delighted to welcome Mr Edward Luke II, a Barrister-at-law, England and Wales, a Barrister and Solicitor of Sierra Leone, and an Attorney of law, Botswana. He is the Managing Partner of Luke and Associates and one of Botswana’s leading lawyers with a wealth of local and international experience. He has engaged in several high-profile cases in the High Court and Court of Appeal in Botswana, including Botswana’s most sensational murder trial; appeared in the Court of Appeal with Sir Desmond de Silva Q.C. 
Mr Luke is a fellow of the Chartered Institute of Arbitrators in the United Kingdom, Kenya and Zambia. He is also a fellow of the Singapore and Botswana Institute of Arbitrators. He is an author who has spoken at several international conferences on International Arbitration. 
In this episode, we explored ADR as it stands in Botswana today.
Keywords: Access to Justice, Alternative Dispute Resolution, Arbitration, Multi-Door Courthouse, Kgotla, Botswana; United Kingdom.

 

INTRODUCTION

 

What prompted the birth of Arbitration in Botswana?

The Arbitration Act of Botswana was promulgated in 1959 to assist in the speedy resolution of disputes. It is essential to state that since Botswana became a prosperous country in the sense that when they find diamonds for so many years, they had the fastest economy globally. There was a lot of construction going on, which brought about a lot of disputes at all levels. So Arbitration became a widespread mechanism used to resolve these disputes efficiently.

 Prior to introducing ADR in Botswana, they had Kgotla – a place where people who have disputes assembly or meet with the chief or with the elders to help them resolve their disputes. People go before the Kgotla and air their views, and the chiefs or elders review them, and the decisions are always arrived at by consensus. Thus it is a traditional local means of resolving disputes and still part of the local culture that they have in Botswana.

 

How has the Arbitration journey fared in recent times?

In recent years, Arbitration is growing though they still use the old 1959 Act; however, the courts are very pro-arbitration. So the courts have made decisions that have established Botswana as a major alternative dispute resolution mechanism country. The courts recognise Arbitration, and they have been very consistent in accepting Arbitration as a dispute resolution mechanism.

Hence the courts have given decisions that are very ADR friendly. Once the parties agree to the arbitration clause, then Arbitration is held, and if the arbitrators do not misconduct themselves or misconduct the proceedings or there is no fraud. The court upholds the arbitration award.

 

Is there a Court-annexed ADR or Multi-Door Courthouse in Botswana?

 It is not enforced or provided yet in the act, but then the Chief Justice mentioned that they are trying to introduce Court-annexed Mediation to proceedings.

However, the Civil proceedings rule has what is called the Case Management Conference (CMC), and in those case managements, the courts encourage the parties to settle before a matter goes to trial.

 

What skills are necessary for anyone to engage in ADR?

There is an institution that has a ‘Rolls Royce’ training for arbitrators, and it is the Chartered Institute of Arbitrators in the UK. They have membership courses and also the fellowship, which is a challenging and comprehensive course. So mastering and passing these courses will enhance the skills needed to engage in ADR.

 

What is your advice for potential users of ADR and people who want to pursue a career in ADR?

To reiterate, people who want to get involved in Arbitration should get in training with the Chartered Institute of Arbitrators, and also try to hook up with law firms that deal with Arbitration and attend conferences. This period (Covid 19-Pandemic) is a very good time that many people could attend conferences online. There are many webinars that are going on where some of the leading arbitrators in the world speak. So clearly, the opportunities for young people interested in Arbitration are plentiful. We would encourage both potential users and persons who want to pursue a career in ADR to look up this webinar, join them, and listen. There is no way that they cannot learn one or two things that would aid them in starting up a career in ADR vis-a-vis opt for ADR as an option. 

 

CONCLUSION:

This essay has succeeded in summarising what prompted the birth of ADR in Botswana, how far they have fared in recent times and the necessary skills required for anyone to engage in ADR.

Hence, with the evidence provided in this essay, we believe that potential users and people who want to pursue a career in ADR, to be precise, Arbitration, would make a well-informed decision while searching for the best option in developing themselves in the chosen career path. 

To hear the full version of episode 14 of EVA, click here.

 

REFERENCES:

Botswana Arbitration Law, 1959.

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.