Professor Emilia Onyema
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:
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.
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.
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.
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.