This should be a no-brainer! ADR is the present and the future. Litigation is fast becoming regarded as a costly and less civilised last resort to a dispute.
This should be a no-brainer! ADR is the present and the future. Litigation is fast becoming regarded as a costly and less civilised last resort to a dispute.
I was honoured to interview Professor Paul Idornigie on Expert Views on ADR (EVA) show. He is a Professor of Commercial Law at Veritas University, Abuja, Nigeria; he is also a Chartered Secretary and Chartered Arbitrator (UK), a Notary Public for Nigeria and an Author. Professor Paul is a Senior Advocate of Nigeria (SAN). SAN is a title that may be conferred on legal practitioners in Nigeria of not less than ten (10) years of standing and who have distinguished themselves in the legal profession. It is the equivalent of the rank of Queen’s Counsel in the United Kingdom.
Prof was also a Senior Lecturer at the Nigerian Law School Abuja, was involved in the setting up of the Abuja and Asaba Multidoor Courthouses, a former member of the National Executive Committee of the Nigerian Bar Association and was former Chairman Chartered Institute of Arbitrators, (UK), Abuja Chapter. In this episode, we analysed the following questions:
1) How far has ADR enhanced access to Justice in Nigeria?
2) What is the role of the National Industrial Court (NIC)?
3) Is there any measurable difference or impact on the Cost and Time Frame for settling disputes under ADR Compared to litigation?
4) Are employees or workers aware of ADR options regarding disputes or conflicts that might arise at the workplace?
5) To what extent employees are encouraged to use ADR to settle discrimination, bullying and harassment in the workplace-Nigeria is the given context?
6) Why is ADR more prevalent or popular in the more complex societies (in this context UK) than in the less complex societies (Nigeria)?
7) What is the way forward for mass advocacy or awareness of the benefits of utilising ADR in settling disputes or conflicts in the workplace?
8) Can Conflicts or disputes at the workplace be prevented or avoided?
9) What type of mediation is best suited for workplace conflict?
10) What are the benefits of using Mediation to settle workplace conflicts?
11) What are the disadvantages of using Mediation to settle workplace conflicts?
12) Is there any difference between Mediation and Conciliation?
13) What is your advice for people pursuing a career in ADR?
* Veritas University:
*Prof’s Profile: https://paulidornigie.org/profile-of-prof-paul-idornigie-san-phd-c-arb/
Professor Paul Idornigie pointed out that ADR means several things to several people because of its jurisprudential and conceptionally challenges. First, what does the word ADR stand for?
Second, if the A stands for Alternative, the next question is, alternative to what? Third, does the acronym include arbitration? Lastly, what are the conducts of ADR? Professor Paul Idornigie pointed out that the core of ADR is mediation. It is a non-binding process; for instance, the National Industrial Court of Nigeria (NIC) has the ADR rules, and they defined ADR to include Mediation and Conciliation, but for some purposes, Arbitration is included when ADR is seen as an alternative to litigation.
HOW FAR HAS ADR ENHANCED ACCESS TO JUSTICE IN NIGERIA?
The application of ADR processes and mechanisms has advanced the effectiveness of the administration of Justice in Nigeria. The colliery has been that there is now greater access to justice; this is demonstrable by the establishment of Multi-Door Courthouse Association in several cities of Nigeria, providing several doors they have doors of Arbitration, Mediation, Conciliation, Early Neutral Evaluation and Med-Arb etc.
WHAT IS THE ROLE OF THE NATIONAL INDUSTRY COURT (NIC)?
In Nigeria, they have the High Court Civil Procedural Rules, which provide for ADR. They have rules of professional conduct in the legal profession 2007. These rules recognise ADR to be used by Lawyers before resorting to litigation, and they now have the National Industrial Court of Nigeria(NIC). The primary purpose of the NIC is to take care of trade disputes between employers and employees, workers and workers, Trade unions and workers and Trade unions and Trade unions. There was a third alteration to the constitution in 2010. That constitution vets exclusive jurisdiction on Industrial matters on National Industrial Court, and the constitution also mandated the National Industrial Court to establish ADR Centers.
NIC mandates include labour employment, trade unions, industrial relations, and matters arising from the workplace, including health, safety, welfare, employee, worker and matters incidental hitherto. We also have a new bill, a National Assembly now called Arbitration and Mediation bill. When this bill passed into law, Mediation was formalised in Nigeria. ADR has come to stay in Nigeria, and the scope is being widened every day.
IS THERE ANY MEASURABLE DIFFERENCE OR IMPACT ON THE COST AND TIME FRAME FOR SETTLING DISPUTES UNDER ADR COMPARED TO LITIGATION?
There is a remarkable difference in costs and time frame for settling disputes via ADR compared to litigation. ADR is generally cheaper apart from Arbitration. It is essential to point out that there is controversy as to whether Arbitration is part of ADR because if it is included as part of the process, then ADR is expensive, but the core ADR processes, like mediation, are cheaper than Arbitration.
ARE EMPLOYEES OR WORKERS AWARE OF ADR OPTIONS REGARDING DISPUTES OR CONFLICTS THAT MIGHT ARISE AT THE WORKPLACE IN NIGERIA?
They are because of the third alteration to the Constitution of 2010. The issue of ADR is not only constitutionally but also statutory. To reiterate, we now have an ADR sector at the National Industrial Court(NIC). Secondly, The Trade Disputes Act of 1976 and the NIC act of 2006 expressly provide for ADR in the Industrial and Labour sectors. However, there needs to be statistics to demonstrate the awareness of ADR options regarding disputes or conflicts that might arise. Still, it is essential to say that most organisations, when drafting contracts, prefer clauses on Mediation over Arbitration.
WHAT IS YOUR ADVICE FOR PEOPLE PURSUING A CAREER IN ADR?
People pursuing a career in ADR should be open-minded or have a broad perspective towards resolving disputes. To reiterate, as a lawyer litigation should be your last choice it should not be your first choice so lawyers should have a tool kit -know when to send matters to either Litigation, Mediation, arbitration, or Early Neutral Evaluation; also a lawyer should be able to establish a nexus between a dispute and a process. For instance, post-election matters are to go to court; if it is a purely commercial dispute -it should go to Arbitration. If it is a matrimonial cause, it should go to the courts; they should know which tool to deploy at any particular time.
ADR is recommendable in the holy books- the Bible and the Quran provide. For example, in the Bible Genesis Chapter 18, verses 23 -33, the city of Sodom and Gomorrah, Abraham was a mediator, and the Beatitudes which is in Matthew Chapter 5:9- Blessed is he who is a peacemaker and Matthew Chapter 18;15-17 deals with ADR -If your brother hurts you go and point out his fault… and the Quran too stated that where two (2) are fighting they should be encouraged to reconcile and settle. ADR has the backing of the holy books.
Click here to listen to the full version of Episode 28 of Expert Views on ADR (EVA) podcast.
The Enugu State Multi-Door Courthouse (ESMDC) was conceived out of the urgent need to reduce the litigation burden of the court and create a more civil and conducive atmosphere where legitimate disputes can be expeditiously and adequately dealt with. The ESMDC in 2018 (by the Enugu State Multi-Door Courthouse Law, which came into effect on the 6th of September 2018, however, the centre was formally inaugurated on the 17th of December 2018) formally opened its doors to the public, replicating the Multi-Door Courthouse (MDC) concept in Lagos State, which Harvard Law School Professor Frank Sander first proposed at the Pound Conference in 1976; a multifaceted dispute-resolution scheme currently utilised worldwide.
This process of replication and adoption of the MDC had the then Chief Judge of Enugu State, Hon Justice N. P. Emehelu, FCIArb, FICMC, F.DRI spearheaded the campaign, which is recognised as the ESMDC; in her efforts to ensure the sustainability of the newly established ESMDC, invited the former director of Lagos Multi-Door Courthouse (LMDC) Mrs Caroline Etuk to start up this scheme in the Eastern part of Nigeria- 042 / Coal City.
Finally, fostering an ethos of negotiation between government agencies is a universal trend that is widespread in developed economies. For instance, in resolving disputes between one government agency and another or between a government agency and private sector institutions, recourse is made via ADR for the amicable settlement of disputes. Hitherto, the ESMDC, on the 4th of January 2021, inaugurated the most erudite governing council of any Multi-Door Court (MDC) in Nigeria into the Governing Council of the ESMDC. They include Hon Justice C.C Nweze, (PhD) JSC, FCIArb, Vice Chairman, Chief (Mrs) A.J. Offiah SAN, a foremost advocate, Arbitrator and Mediator. Hon Justice R.O. Odugu, Chairman of the ADR Judges and Magistrate Forum and certified mediator of the Centre for Effective Dispute Resolution (CEDR) UK. Hon Justice C.C. Ani (PhD), ADR Judge and accredited mediator of the Center for Effective Dispute Resolution (CEDR) UK; Chief Melitus Eze, (Life Bencher), Hon. Attorney General and Commissioner for Justice of Enugu State; Mrs Caroline Etuk, Director of the ESMDC, amongst others.
INITIATING A CASE AT THE ESMDC:
A matter may be commenced at the ESMDC in three (3) ways-
I. Walk-Ins: Any party to a dispute may initiate a Mediation, Arbitration, Early Neutral Evaluation or any other ADR process service by completing and filing the requisite forms at the ESMDC.
II. Court Referrals: The Presiding Judge or Magistrate in a matter already in litigation or during a pre-trial conference may refer parties to the Centre in appropriate circumstances.
III. Direct Interventions: The ESMDC, in circumstances where public interest or the interest of the disputing parties so demand, may approach the parties to assist in resolving their dispute.
THE ADR PROCESS:
A. The Initiation Stage is the stage at which disputants complete and file the ESMDC Request form along with supporting documents to initiate the ADR process, or the matter is referred to the ESMDC by the Court for ADR Intervention. The other party’s submission to the process is also essential to this stage.
B. At the Intake Screening Stage, the ESMDC determines the most appropriate ADR Door for the dispute.
C. The Pre-session Stage is a meeting where the parties are acquainted with the ADR procedure to be deployed, choose a Neutral, and commit to the process by signing the relevant confidentiality and other preliminary agreements.
D. The ADR Session Stage is the stage at which the ADR intervention commences, and the disputants fully engage in the process towards resolving the dispute.
E. The Closure Stage is the final stage of the process where there is a Settlement, an Award or a transition to other Hybrid Processes which may be deployed in a continuum.
Finally, a settlement agreement duly signed by the parties when endorsed and adopted by an ADR Judge is deemed enforceable as a Judgement of the Court of Enugu State. Thus far, settlements are enforceable at the ESMDC.
THE STEPS TAKEN SO FAR -FROM THE DAY OF INCEPTION TO DATE:
The Centre’s objective was clearly stated in Section 4 of the ESMDC Law 2018, which includes enhancement of access to justice by providing alternative mechanisms to supplement litigation in the resolution of disputes and to serve as a focal point for the promotion of ADR in the Enugu State.
Against this backdrop, they have engaged with a broad and immeasurable range of clientele as the Centre can obtain referrals from the courts of Enugu State, the Federal High Court, and Courts of other jurisdictions that provide top-notch ADR services to individuals, corporations, organisations (governmental and non-governmental). Its most well-developed product mediation is utilised through well-articulated systems of service delivery within the framework of the ESMDC (ADR Procedure) Rules issued in 2018, its Standard Operating Procedures (SOPs) and Key Performance Indicators (KPIs).
Nevertheless, its arbitration door is yet to gain patronage from potential clientele. However, its early neutral evaluation door has recently been activated with the appointment of four (4) retired judges and four (4) retired magistrates to provide more service options. In every area of ADR service delivery, the Centre strives to benchmark internationally acceptable levels of efficiency for court-connected programmes and to address the factors that affect the level of effectiveness, productivity, and probity.
Furthermore, to boost its service capabilities through capacity building of mediators for its distinguished panel of neutrals, the Centre introduced the Enugu State Mediation Skills Training Certification Programme to train mediators for effectively resolving disputes which have entered the court system. This training is followed by a period of mediation mentorship, one which seeks to produce a high calibre of professional mediators with best-practice competencies and ethics.
The ADR Committee of the Nigerian Bar Association (NBA) Enugu Branch, in collaboration with the ESMDC, has organised Mediation Advocacy skills training for lawyers. Additionally, the Youth Mediation Programme, launched this year, 2020, has trained Fifty (50) Youth lawyers in mediation skills.
Strengthening their grass root dispute resolution framework is an integral part of their strategy. Additionally, they have engaged the Magistracy of Enugu State at a more interactive level to pay attention to the vast reservoir of disputes from a more significant segment of the society as well as providing the needed solutions to those problems.
Finally, the ESMDC entrance into the commercial sector through its Commercial Intervention Strategy and development of a Banking Track is ongoing. For example, this year, they focused on the banking sector and engaged Micro Finance banks- which birthed incredible results; they now have an increasing number of cases for resolving bank-customer-related disputes.
It is pertinent to point out that for the first time, my PhD findings (2019-2022) (Dr Chinwe Egbunike-Umegbolu) revealed that minor criminal matters were settled via Mediation / the Restorative Justice Door in Nigeria precisely in Lagos Multi-Door Courthouse (LMDC) and Enugu State Multi-Door Courthouse (ESMDC) precisely via Mediation.
The blogger’s PhD findings also revealed for the first time that funding, awareness and more space are the biggest challenges facing Nigeria’s Multi-Door Courthouse (MDC).
Consequently, the blogger’s research recommendation particularly emphasised that social media (Podcast) can be a great tool in advancing and creating more awareness on the ADR and MDC agenda.
It gives the blogger great joy that this is no longer the case; on the 13th of December 2022, the blogger and Benjamin Aneke (Esq) planned on creating an ESMDC podcast channel (I will share the link on my blog when it happens) and on the 15th of December 2022 the Governor of Enugu State, Rt. Hon. (Dr) Ifeanyi Lawrence Ugwuanyi, in partnership with the Enugu State Judiciary, the present Chief Justice of Enugu State, Hon Justice A. R. Ozoemena, moved the ESMDC from a smaller structure /edifice to a bigger one.
The ESMDC has achieved this incredible feat within a short period while maintaining a growth trajectory that has identified it as an institution of choice for resolving commercial, civil, and family disputes in the Eastern part of Nigeria. The ESMDC has retained an average settlement rate of 67% of its mediated cases; however, it urgently needs to increase its case intake. This can be done by creating more awareness via their social media platforms. Thus far, the ESMDC is still a work in progress.
“Ken Cloke is a hero, a role model and one of the true pioneers of the field. Mediation in Los Angeles would not be what it is if he had not led the way. He’s a big giant, and a lot of us are standing on his shoulder. He has an extremely gentle personal style, but at the same time, he speaks the truth, and he deals with the challenge. Ken is both kind and firm at the same time-in a way that helps people move from conflicts.” Attorney- Mediator Jeffrey H. Kichaven.
The EVA Podcast is focused on providing useful, viable, dependable, simple, quality, and affordable ways of application of the ADR mechanisms in settling conflicts or disputes with ease; while exposing the numerous advantages and pleasant opportunities the knowledge, application, and use of the ADR alternatives affords users globally. On this note, I am afforded the privilege to interview the living legend in ADR, Prof. Kenneth Cloke, on Episode 31 of the Expert Views on ADR (EVA) Podcast.
Kenneth Cloke is renowned and reputed worldwide for excellence as a mediator, dialogue facilitator, conflict resolution systems designer, teacher, public speaker, author of numerous books and articles, astute pioneer, and leader in the field of mediation and conflict resolution with a track record for excellence spanning through over thirty seven (37) years of hard-work and continued sacrifices. I am exceptionally pleased to host this very episode.
Reminiscing on how I created the EVA Podcast during my Ph.D. days at the University of Brighton- to sensitize the general public about the advantages of utilizing the ADR mechanisms. With ADR being my core research area, I was driven by the passion for educating the general public on how to apply the ADR mechanisms in settling their respective disputes and conflicts that arise on a daily basis. My paramount concern was how to spread this ADR gospel across – free and at no cost whatsoever; hence, the birth of the EVA Podcast on the online space where I believe many would have unhindered access to listen to it, gain from it, and help to further spread these Alternatives.
Through the EVA Podcast, I had no doubts that the aims of advancing ADR worldwide would be achieved in the nearest future. It is my vision to inspire the general public through this platform and change the psyche and perception of the citizenry from litigation to ADR methods of settling disputes (I call it the peace-making route) in different jurisdictions. I firmly believe that in the next ten (10) years, the realities of the impact of EVA Podcast globally will be overwhelming.
Additionally, I wanted to improve my skills – pronunciation, my accent (to acquire the British accent (lol), I’m so far from it, as you can see, but I will definitely get there), my presentation, and my writing skills. I also wanted the show to be diverse and inclusive.
Of course, I needed permission from my school to kickstart this dynamic and innovative initiative. In this regard, I emailed Steve Reeve, who thought it was an incredible idea and the first of its kind (no Ph.D. student had a podcast centered around their research); thus, the EVA Podcast was officially approved.
I also spoke to my supervisors, Dr Adaeze Okoye and Dr Claire-Michelle, who have been supportive to date (promoting my podcast and blog post).
These aims were realised and my little dreams to put out ADR in the online space uniquely packaged via a Podcast became a reality! I have had over eight hundred (800) people listening to my podcasts from not less than thirty-seven (37) countries!
The EVA Podcast successfully interviewed several Leading Experts and Egg Heads in the Legal Profession and ADR from different jurisdictions.
I have also had massive support from my Ph.D. classmates – Akinyo Ola, David Nzeribe, Bisi Bajela, Sis Hilda Uzokwe, and Ben Brindle (they were so kind and kept encouraging me ). I also had my mentors – Prof Emilia Onyema, Prof Mark Feldman, Prof Hiro Aragaki, Prof David Allen Larson, Barr Ikechukwu Onuoma, and Barr. Nnezi Ivenso, FCIArb who supported me and encouraged me all through.
The journey has been both tough and eventful. At some seasons, periods, moments, and intervals on this great journey, I have felt like giving up, but thanks to you all that believed in me even at my lowest – my family, my colleagues, my friends, my guests on EVA, my well-wishers and all those that encouraged me in one way or the other; your supports have led me thus far.
Most Importantly, I dare not fail to credit God for all I have done so far.
Stay tuned for more Episodes of Expert Views on ADR (EVA) Podcast/ YouTube.