ADR and workplace conflicts: a Nigerian Perspective with Professor Paul Idornigie, SAN, C.Arb (UK)

ABSTRACT

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:

https://www.veritas.edu.ng/

*Prof’s Profile: https://paulidornigie.org/profile-of-prof-paul-idornigie-san-phd-c-arb/

INTRODUCTION

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.

TO WHAT EXTENT ARE EMPLOYEES ENCOURAGED TO USE ADR TO SETTLE DISCRIMINATION, BULLYING AND HARASSMENT IN THE WORKPLACE-NIGERIA IS THE GIVEN CONTEXT.

Disputes bothering on bullying, discrimination and harassment are not amenable to the use of ADR. Bullying and harassment are issues that ought to be resolved in most cases via disciplinary actions; in some cases, they may bother on crime, and if the crime is established, they will be dealt with according. Now in the area of discrimination can arise in many ways, either due to disability, race, sex, age, national or state of origin or religion. Such complaints should be adequately addressed, and discrimination complaints should be handled at the managerial level; it should be addressed for the parties to handle themselves.

WHY IS ADR MORE PREVALENT OR POPULAR IN THE MORE COMPLEX SOCIETIES (IN THIS CONTEXT UK) THAN IN THE LESS COMPLEX SOCIETIES (NIGERIA)?

The UK is well-developed in terms of industrial relations. They have the Advisory Conciliation and Arbitration Services (ACAS), whereas in Nigeria they do not have any similar body. Additionally, in the UK their use of Mediation is highly formalised. However, in Nigeria we are not that formalised, but that is not to say that we do not practice mediation; in Nigeria is just that it is a formal process. However, in the villages, there is the Obas, Emirs and Chiefs mediating. So mediation is not something new to Nigerians. It is imperative to note that there is a reported case where Customary Arbitration was recognised in the West African Court of Appeal as far back as 1932.

As recently as 2022, the Nigeria Court of Appeal also recognised customary arbitration in the case of Attamah. Customary Arbitration or Mediation is not alien to native jurisprudence because it has not been formalised. Prof Paul pointed out that is why ‘we are praying that if the new bill is signed into law, then we will now have a legal framework for Mediation in Nigeria, but as we speak, it is practised in our villages, its been with us it is not western I call it Afrocentric it is not western it has its origin in Africa.’

WHAT IS THE WAY FORWARD FOR MASS ADVOCACY OR AWARENESS OF THE BENEFITS OF UTILISING ADR IN SETTLING DISPUTES OR CONFLICTS IN THE WORKPLACE?

Under the Trade Dispute Act of 1976 there is a provision for Industrial Arbitration Panel (IAP), which is under the National Industrial Court Act are, referred to as the ADR Center, i.e. the Multi-Door Courthouses (MDC) now promote ADR. Unions should be encouraged to resort to ADR. Lawyers should also tell clients all options applicable to them- for instance, that they have a case where they are two doors-one for litigation and doors for all the ADR processes. It should not just be litigation available to them. Professor Paul pointed out that litigation should be the last door when clients come to their (lawyers) office, and Arbitration and other ADR Processes should be the first door.

CAN CONFLICT OR DISPUTES AT THE WORKPLACE BE PREVENTED OR AVOIDED?

There will always be complaints, problems or disagreements that require our attention in the workplace. Conflicts or disputes in the workplace cannot be prevented or avoided; they are inevitable however they can be managed unless one is on the robin hood kind of island- alone. That is when one can avoid conflict. Once two people gather, there must be conflict and the two people must find a way of resolving it.

WHAT TYPE OF MEDIATION IS BEST SUITED FOR WORKPLACE CONFLICTS OR DISPUTES?

Workplace conflict is also referred to as an organisational conflict. It is described as the state of disagreement or misunderstanding by individuals or groups within the organisation resulting from opposing needs, ideas, beliefs, values and goals.

Professor Paul pointed out that he always advocates for two types of workplace mediation. The first one is called self mediation-this is a situation where the mediator wears two hearts, i.e. that of a party in a dispute and the other as a mediator. The second one is Managerial Mediation, where a superior officer plays the role of a third-party neutral that facilitates negotiations between subordinates.

WHAT ARE THE BENEFITS AND DISADVANTAGES OF USING MEDIATION TO SETTLE WORKPLACE CONFLICTS

As a dispute resolution process, it focuses on helping the parties to a dispute to plan for their future relationship. It is essential to point out that it does not focus on who is right or wrong and does not apportion blame though there is a famous saying ‘that one cannot come out from court smiling, but in mediation, one can come out smiling.’

Mediation can be used to build confidence in a workplace- they focus on the need or the interest of parties rather than their legal rights, which changes how disputes are categorised, analysed and processed. Thus, mediation ensures that relationships are maintained, unlike when a party goes into litigation, where relationships are sometimes estranged forever. There are really no apparent disadvantages to using mediation in the resolution of workplace conflicts, but mediation can not be used on issues of indiscipline or misconduct and it can not serve as punishment. It should be reserved for the normal court process or the normal office discipline procedure. Nevertheless, an office should have disciplinary procedure or rules on how to punish employees for misconduct, or bad behaviour; however, mediation cannot be used for bullying or sexual harassment or intimidation.

IS THERE ANY DIFFERENCE BETWEEN MEDIATION AND CONCILIATION?

Prof Paul Idornigie pointed out ‘that he is guided by the UNCITRAL Model Law on Mediation. In hindsight, in 2002, there was UNCITRAL Model Law on Conciliation, and in that model law Conciliation was defined to include Mediation. In 2018, there was an UNCITRAL Model Law on Mediation- in this version, Mediation was defined to include Conciliation. As far as UNCITARL is concerned, there is no difference between Conciliation and Mediation in the sense that the two (2) processes- will get a neutral third party to assist them in resolving their disputes. For example, suppose a party (ies) goes to court. In that case, the Judge will pass its judgement, and if they go to Arbitration, the Tribunal will give an award, but if they go to Mediation or Conciliation, a Mediator or a Conciliator decides nothing and awards nothing; for me, it is a process where a neutral third party assists parties to solve their problems in so far the mediator can not decide anything, award anything. I do not see any differences between them; they can be used interchangeably -I am guided by UNCITRAL though the Institute of Chartered Conciliation and Mediation in Nigeria might disagree with me.’

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.

CONCLUSION

The paper analysed the workplace conflict situation in Nigeria; while at the same demystifying the role of the National Industrial Court in Nigeria, its objectives and why disputes bothering on bullying, discrimination and harassment are not amenable to ADR. The paper concluded by advising people pursuing a career in ADR to be open-minded or have a broad perspective towards resolving conflicts. The blogger believes potential users should take on board the pros mentioned herein and opt for ADR, particularly Mediation or Conciliation.

Click here to listen to the full version of Episode 28 of Expert Views on ADR (EVA) podcast.

For the Love of ADR: Mass Awareness Advocacy via Podcast

The vision is to create awareness of the effectiveness of ADR or the Traditional African Method of Settling Disputes

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