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.

 

 

 

Episode 10: Adjudication v Arbitration – Two Worlds Apart?

 

 

ABSTRACT

I was thrilled to welcome Mr Kelly Agbonze, a Legal Practitioner who was called to the Nigerian Bar more than twelve (12) years ago. He has handled many cases in Arbitration and Litigation. In this EVA episode, we threw more light on the following questions – a) What is dispute resolution? b) Why, Adjudication? c) What are the differences between Adjudication and Arbitration? This last question stems from the arguments in some reviewed literature where some scholars have highlighted the resemblance and differences between them.

                                                               

INTRODUCTION:

 

Why, Adjudication?

 

The Umbrella that holds Dispute Resolution-Litigation

Before defining what Dispute Resolution means, we first looked at what Adjudication is. We pointed out that Adjudication generally refers to the process of decision making, involving neutral third parties who have been vested with authorities either by the state or by the parties under an agreement in an arbitration to determine a binding or deliver a binding resolution through the form of Judgement or award. In other words, there is the court-based or out of court based Adjudication.

We elucidated that Court-based Adjudication is known as Litigation or Dispute Resolution, an involuntary adversarial process wherein the state vests the court with powers to make binding win or lose outcomes. It encompasses court processes to resolve the dispute according to the court’s rules. On the other hand, Arbitration is a private method of Dispute Resolution or in other words, Alternative Dispute Resolution by which the parties under an agreement appoints either a sole arbitrator or a multi-arbitrators arrangement. Under this arrangement, there are many advantages.

 

 The  Similarities between Adjudication and Arbitration: 

We pointed out that there are similarities and differences between them, but we first outlined what joins them together before examining what separates them. Thus, some of these similarities are as follows:

 

a) Decisions Delivered:

The ultimate aim of the two procedures is to have a decision delivered at the end of the day by the judge or the arbitrator- providing a final decision to parties and resolving the dispute between them. With the sole aim of having a decision given at the end of the day. It could either be called a Judgement or an award. 

b) The Involvement of a Third Neutral Party:

The second similarity is the involvement of a neutral third party- the parties appoint the arbitrator for Arbitration under an enforceable agreement. The arbitrator has full control over the arbitration proceedings’ content. Conversely, the judge is appointed by the state and vested with coercive powers to make far-reaching decisions. It is pertinent to point out that they are other dispute resolution- Alternative Dispute Resolution (ADR), which mainly comprises Mediation, Conciliation and Negotiation. These enlisted processes involve a neutral third party that mediates or seeks to deliver a decision except for Negotiation; parties can choose to have no neutral third party.  

c) Outcome Approach: Win-Lose:

The third one is the outcome approach under this; both procedures are usually a win or lose outcome. We went further to explain what these mean- that parties do not go to Arbitration or litigation, and the arbitrator or judge will hand a win-win to them. Unlike in Conciliation, Mediation and Negotiation, there is win-win for parties involved. The enlisted similarities are what ties these two procedures together. 

It is important to note that there are a couple of other similarities; though few. However, they are tied around the similarities mentioned above; thus, this discourse has focused on the three most significant similarities between them. 

 

The Differences between Adjudication and Arbitration

a) Confidentiality:

In Arbitration, the fact that the processes, content and outcome of an arbitral procedure are confidential and kept private; that is why many business people favour Arbitration against litigation. However, this is never the case in litigation-  the procedure and the court’s judgment are all in the public view.  

b) Involvement of Parties:

In Arbitration, parties have full control of selecting their arbitrators, the venue, and the procedural rules, amongst others, but this is against what we have in the regular court. The court determines the rules and the parties have no say in it.  

 

C) Fewer Formalities: 

 Arbitration is less formal as against the rigid procedures in litigation. For instance, in litigation, the rule says that a party can only plead the material facts, not the evidence. However, under Arbitration –section 256 of the Evidence Act expressly prohibits applying the evidence act for arbitral procedures, which means that the arbitrator has the flexible know how to determine the evidence that should be accepted.

For example, in litigation, the court says that this public document was not certified and because it was not certified, the lawyer cannot tender it. However, in Arbitration, the arbitrator is interested in the document’s relevance, and if it is relevant, the arbitrator will accept it. 

d) The Structure :

We highlighted that the court is permanent-its always there- always open for parties. However, the arbitral tribunal comes and goes. In other words, it is based on the parties appointment under an enforceable agreement, so it goes into oblivion/ sleep after determining a particular matter. On the other hand, a judge, of course, derives its coercive powers from the state and delivers far-reaching decisions. For the arbitrator, he does not have the state’s coercive power. 

CONCLUSION

This essay critically examined the similarities and differences between the two procedures. Furthermore, it revealed what potential users of both procedures should consider if their matter can be arbitrated or litigated. 

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

 

REFERENCES:

Blake, Susan, Browne, Julie, Sime, Stuart, A Practical Approach to Alternative Dispute Resolution (2nd Ed, Oxford University Press 2012)

Evidence Act of Nigeria, 2011

Episode 9: The LMDC Journey under the leadership of Mrs Adeyinka Aroyewun

 

Mrs Adeyinka Aroyewun-Director of LMDC.

 

ABSTRACT

I was delighted to welcome Mrs Adeyinka Aroyewun, the Director and Member of the Governing Council at the (LMDC); an International Mediator of the Centre for Effective Dispute Resolution (CEDR), United Kingdom (UK), Member of the Charted Institute of Arbitrators (CIArb) UK.  She has mediated over seventy (70) disputes and has gained experience in a comprehensive range of disputes, such as Commercial Disputes, Financial/Banking, Property, Employment and Family Disputes. In this episode of EVA, we critically discussed the following questions – What prompted the birth of the LMDC in the Nigerian Judicial Landscape? What are the advantages of using the LMDC and its impact so far? How does the Court-Connected ADR work? How can parties commence or initiate matters at the LMDC? With the recent challenges faced at the LMDC, what is the resultant effect of these challenges or occurrence?

We concluded by touching on these challenges caused by the COVID-19 Pandemic and END SARS peaceful protest hijacked by hoodlums, which led to the burning down of LMDC. Despite these challenges, the LMDC has continued to render services remotely to their users.

Keywords: Alternative Dispute Resolution, Multi-Door Courthouse, LMDC, ODR, Access to Justice, Court-Connected ADR, COVID-19 pandemic, END SARS.

 

INTRODUCTION

WHAT PROMPTED THE BIRTH OF THE LMDC?

To properly appreciate the circumstances that warranted the indigenous masterstroke intervention that the Lagos Multi-Door Courthouse is today, we painted a vivid picture of the Justice System before having the LMDC there.

Before the emergence of LMDC, the Nigerian Judicial system was not in a desirable state. Hitherto, the acknowledged means of dispute resolution was litigation. It reigned this adversarial culture in the consciousness of the citizenry by default, that once a dispute ensues the average person knows no better option than to resort to litigation.  As a result, the tremendous growth in the population, coupled with the increase with enlightenment, business activities, and the litigation culture’s fixation, and it was only inevitable that caseload will take an upper turn and spiral out of control.

However, not many would have predicted an alarming rate at which judicial caseload was overflowing, and judges could not single-handedly cope with the unenviable challenge despite their best effort. For instance, a Judge in the Lagos State Judiciary reported a thousand cases in her docket, which existed some cases that had spent twenty-nine years in court.

Inordinate delay and an irredeemable backlog of cases were inevitable with this kind of scenario in the grand scheme of things. Confidence was lost in the system, and it also took a toll on the Lordships as parties were driven asunder even before the judicial pronouncement. So, in a bid to help out with the Lagos Judicial system and keep with the global trends, the Alternative Dispute Resolution (ADR), notably the Multi-Door Courthouse (MDC) as an institutional repository of ADR mechanisms was mooted by the Harvard Professor Frank Sander and expounded upon at the 1976 Dean Roscoe Pound Conference.

On the other hand, what the Negotiation and Conflict Management Group (NCMG) founded by Mr Kehinde Aina – did was to spearhead this MDC concept and make it a reality in Africa with the collaboration of the Lagos State Judiciary the dream became a reality on June 11th  2002. The LMDC became the first Court-connected ADR Center in Africa. We then delve deeper into some of the specific elements and advantages that constitute the LMDC while highlighting its impact so far.

WHAT ARE THE ADVANTAGES OF USING THE LMDC AND ITS IMPACT SO FAR?

We elucidated that though the LMDC has not reached its desired height, publicity is not as much as they would want it to be. They also have the challenges of settling all disputes but found out that it is not possible as they cannot settle everything. However, we pointed out that some measures of progress have been made in about seventeen (17) years of existence. It is pertinent to point out that the LMDC are the touch bearers, the trailblazer, the first of its breed and because of that, other States of the Federation of Nigeria have followed suit.

 

Pioneering Role of the LMDC

We revealed for the first time one of the impacts the LMDC has made is that it triggered a phase of replication base by various States. For example, Abuja, Enugu, Akwa-Ibom, Rivers, Cross River, Delta, Ogun, Oyo, Kaduna, Ondo, Bayelsa, Abia, Edo, Borno and Katsina State. They all established their MDC following the Lagos State Model, and even in states where there are no MDC; there existed different kinds of ADR Institutions and Mediation Centres.

For these reasons, it is irrefutable to say that without the pioneering role of the LMDC none of the States would have ventured into doing something about ADR. This alone is a great testimony to the impact that the LMDC has made so far since its establishment.

 

 

Expanded Access to Justice:

Additionally, the LMDC has successfully established itself as a dependable and effective alternative litigation with the availability of access to justice through its dispute resolution patterns that are timely, cost-effective and user-friendly. Thus, the arrival of the LMDC has expanded access to justice in Lagos State and changed the judiciary’s face forever. The courthouses have now been transformed into a one-stop dispute resolution centre where a dispute has a real choice from different mechanisms, including litigation.

 

The High Court Civil (H.C) Procedure Rules 2019 Review: 

Subsequently, during the (H.C) Civil Procedure 2019 review, the LMDC suggested making the High Court Registry a one-stop dispute resolution centre. That is, if parties come to the High Court Registry, from that point, they can let them know whether it is litigation or mediation or negotiation that is suitable in resolving their respective disputes.

Undoubtedly, the (H.C) of Lagos Civil Procedural Rules established the ADR track in December 2012, the ADR track in the Ikeja Judicial Division, the ADR track in the Lagos Judicial Divisions and all the cases coming directly from the High Court will be screened by the LMDC. Once determined, it is stamped, and the parties will have to come to the MDC to be heard.

 

Timeliness:

Timeliness is one of the impacts of the LMDC on other States. Though there is still room for improvement, several mediations took just one (1) or two (2) mediation sessions or sittings to resolve. For example, in the 2017 Lagos Settlement Week, a banking case in Court for about 26years was settled at two (2) mediation sittings. Then a banking case with a claim of over 1.6 Billion Naira equivalent to 3,067.66 Pounds Sterling was settled in two (2) mediation sittings. Conversely, a case for dissolution of marriage was taken, and both parties withdrew their Petitions and Reliefs. In the same 2017 settlement week, about 4.5 Billion Naira equivalent to 8,637.82 Pounds Sterling monetary claims were recovered, representing about 14% of resolved matters.
However, in 2018 Settlement Week Programme, about 24.3 Billion Naira equivalent to 46,698,354.90 Pounds Sterling in monetary claims were recovered. Also, a case on the Administration of Estate has been in Court for nearly 29 years. However, it was settled in two (2) mediations sittings. Also, a banking case with a claim of over 1.8 Billion Naira equivalent to 3, 457,910.70 Pound Sterling was settled.

Following through, in 2016 and 2017 Settlement Week, 31.3 Billion Naira equivalent to 60,060,577.79 Pounds Sterling was recovered in claims, and also the LMDC impact can be gleaned from saving some legal fees. Management time for corporate litigants, court time, counsel time, the resources of the court, things like contingent reliability risk, reputational risk, other sheer inconveniences associated with serving litigation in financial terms, which we have computed with the colossal amount of savings made for the litigants in counsel and judicial system.

 

User Friendly:

With the help of the informality, the affairs of the Courthouse has played a huge role in ensuring a user-friendly and affordable LMDC, where parties who are unable to afford the services of the LMDC can apply for fee review or even pro-bono. It is essential to point out the LMDC has never turned away indigent disputants, unlike in litigation where parties will have to struggle with the high cost.

 

Preserves Relationship:

We highlighted another significant aspect of the LMDC: it preserves the relationship of the parties from the onset, unlike litigation where the battle line is drawn and the parties, their respective businesses, social and other various relationship are ruptured. However, there is credible, intense competition for business retention and securing of more clients in this age of globalisation rather than lose out in this respect. LMDC has done well in resolving disputes, but also in reconciling parties. They desire great fulfilment from seeing either two or more estranged parties now coming to an agreement, shake hands and continue with their business relationship, and that is what litigation cannot give. Even more so, when the parties resolve their respective disputes via litigation, oftentimes, the relationship might not be as cordial as it was before.

 

HOW DOES THE COURT-CONNECTED ADR WORK? 

There are about three main reasons why the LMDC is referred to as a Court-Connected dispute resolution centre – which is as follows:

1)  It is situated in the High Court (H.C) of Lagos;

2)  The Judges and the magistrates get to refer their cases;

3)  Even with the walk-in cases that are not referred by the Judge when the parties sign the Terms of Settlement (TOS), it is sent to the ADR Judges, and they will enter it and endorse it as a Consent Judgement in Court. The above-stated submission is the reason why the LMDC is referred to as a Court-Connectivity or Court-connected ADR.

 

 

HOW CAN PARTIES COMMENCE OR INITIATE THEIR MATTERS AT THE LMDC?

On how parties can initiate matters at the LMDC, we pointed out that these can be done in three ways-

Court Referral: Both a High Court Judge or Magistrate refer cases to the LMDC.

Walk-Ins: A Party can walk-in to the LMDC and initiate matters.

Validating the above-stated position is Section 4 of the LMDC Law 2007. Once parties that settled in other institutions reach the TOA, they can bring it to the LMDC through the ADR Judge, who will enter it as a Consent Judgement.

 

Direct Intervention:

In this category, the LMDC can directly intervene in cases or matters of high public interest. For instance, maybe strikes amongst others, the LMDC can intervene and write a letter to the people concerned, as well as to the government and invite the parties to come to negotiate their matters at the MDC.

 

WITH THE RECENT CHALLENGES FACED AT THE LMDC, WHAT IS THE RESULTANT EFFECT OF THESE CHALLENGES OR OCCURRENCE?

Prior to the COVID-19, the LMDC provided virtual interactions but had done that on a small scale but with the pandemic made it glaring and apparent that the Online Dispute Resolution (ODR) needed to go full scale. It resulted in the online dispute getting more intensity, especially as a result of the pandemic. The parties have embraced that idea being in their homes’ comfort and safety and simultaneously engaging in the dispute resolution process. The success story has already been recorded since they commenced the resolution of a dispute. Therefore, it could hold that the ODR has many benefits – save costs and does not require the parties involved to travel.

Suffix to say that the LMDC staff had to stay at home. When parties initiate the online dispute process, it is immediately linked to the LMDC website, as well as the ODR guidelines and requirement for mediators, because it is important that mediators understood ODR and understood how it operates. They also scheduled ODR practice sessions on zoom for their mediators and parties before they mediate to ensure a qualitative and seamless ODR mediation process. Additionally, they organised a general ODR facilitation training mediation certification course in collaboration with the ODR Court and ODR Europe for their mediators. They also held an online demonstration ODR process, emailed demo videos to their mediators, especially those requiring further assistance with technology and reviewed the LMDC Practice Direction on Mediation Procedure and ODR Mediation; this then gave it legal backing. It is fair to say that the LMDC embraced the new normal and maintained constant communication with the mediators with the online qualitative experience requirements. They need to have a laptop or tablet, data and practice peer review. Thus, at the end of the whole rigorous training, the LMDC mediators were certified in online mediation.

It is pertinent to point out that the LMDC has covered 30 to 40 cases since August 2020, though more claims are being handled as they commenced the first online settlement month in Africa on 7th December 2020 which is still ongoing at the time of this writing. However, the target was to meditate 500 cases online, but due to the usual challenges – network and data are yet to be achieved.
Given these challenges, the LMDC were resilient and surmounted these challenges by ensuring that they had a seamless qualitative process during the Settlement Month (SM) in December, though was initially scheduled in November. However, the hoodlums that hijacked the END SARS protest made this impossible. As they broke into the LMDC offices, looted and took away all the computer systems, printers, photocopiers and other equipment while the office was set ablaze.

In furtherance, the main ADR Unit was totally destroyed, ranging from the reception, the registry, the accounts section, the data unit; everything was burnt to the ground. Nevertheless, the LMDC persevered, as it carried on with work remotely, refusing to get deterred by such an act.

Currently, the LMDC no longer have an office at Igbosere because it was burnt down, but the ADR track office at Ikeja is still there. However, one of their mediators was kind enough to allow them to use part of her office- that is where they started with the ongoing Online Settlement Month (OSM). Hence, publicity was not as much as they would want it because the whole building was burnt down.

 

 

CONCLUSION:

In this work, we provided a detailed account of the concept behind the birth of the LMDC, past, the present journey, advantages, and impact on other states.
Consequently, with the level of advantages and impact revealed in this work, the LMDC is a success story notwithstanding the above-stated challenges, as the scheme has continued to render services remotely to their users. Given this, we encourage potential user or users to file their cases via the Online Settlement Month (OSM) within the comfort of their homes.

To hear the full version of this episode, click here and for more information on the OSM, visit the website of the LMDC and Instagram page.

 

REFERENCES:

Chinwe Stella Umegbolu, Episode 9: The LMDC Journey under the leadership of Mrs Adeyinka Aroyewun,
<https://anchor.fm/chinwe1/episodes/Episode-9-The-LMDC-Journey-under-the-leadership-of-Mrs-Adeyinka-Aroyewun-eoac1b> accessed 28th December 2020

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.

Adeyinka, Aroyewun, Mediation Profile, International Mediation Institute (IMI) <https://imimediation.org/member/adeyinka-aroyewun/> accessed 27th December 2020

LMDC Law 2007

LMDC Law 2015

Rule 28 of the High Court Rules of 2019

 

Episode 8: Top Tips for finding or choosing the Right Mediator

Abstract
I was thrilled to welcome Mrs Nnezi Miriam Ivenso, a lawyer with 13 (thirteen) years, post -qualification experience in active legal practice including Litigation, ADR and Corporate Commercial Practice. She holds a master’s degree in Law Financial Services from the University of London, a certified Mediator, enlisted as a Neutral with the Enugu State Multi-Door Courthouse (ESMDC) as well as an Associate Member of the Charted Institute of Arbitrators, (CIArb), United Kingdom. In this episode of Expert Views on ADR (EVA), the following questions were posed and dealt with – what is Mediation, what are the criteria for finding or hiring the right Mediator? Finally, the third question posed- ‘whether the mediators are allowed to use only the facilitative or evaluative Mediation, or can they use a combination of the two mediation styles?

We concluded by touching on the essential elements and features of Mediation while at the same time indicating the importance of finding the right Mediator.

 

Key terms:  Centre for Effective Dispute Resolution, United Kingdom,  Lagos Multi-Door Courthouse, Nigeria.

 

 

Introduction:

We understand that some people are not very clear on what Mediation means. They are common misconceptions on what Mediation is. For these reasons, we defined the term mediation with the hope that the outlined definition from two credible mediation institutes would assist potential users and disputants understand Mediation better.

 

Definition of Mediation?

The LMDC law 2007, defined “mediation as a voluntary process for resolving disputes with the assistance of a neutral third party who facilitates that dialogue between disputing parties and it helps them privately and collectively to identify the issues in disputes, reach the settlement of this disputes and mutually accept the settlements.”

On the other hand, CEDR defined “mediation as a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or a difference with the parties in ultimate control of the decision to settle and the terms of the agreement (TOA).”

The sentiments expressed in both quotation embodies the various features and elements of Mediation while capturing the concept of Mediation. We went on to highlight them and give a brief explanation of what each means as it will help potential users and disputants understand what meditation means.

 

1)   The Features and Elements of Mediation

 

Flexible Process: 

This means that contrary to the strict formal procedures or process that parties would ordinarily follow in litigation, in Mediation, this is the opposite, there is no formal procedure to be followed. Thus flexibility is one of the main factors that attract litigants and disputants to the meditation process because people feel confined especially where there is a strict formal procedure, thus many times in litigation- they sacrifice justice at the altar of technicality.

 

Confidentiality:

The mediation session’s entire process is confidential and without prejudice because parties are given the opportunity to sign the confidentiality clause. In most cases, the confidentiality clause serves as an incentive for making the parties open up and disclose the underlying issues inherent in the matter. That ordinarily they would not have disclosed (if it were in litigation) which most times are the root cause that triggered or led to the disagreement in the first place.

 

The Neutrality of the Mediator: 

There is neutrality on the part of the Mediator who is the one assisting the parties. To restate the Mediator is a neutral third party and he stays impartial and unbiased, does not take sides, and just helps the parties reach an agreement. Essentially, what the Mediator does is to assist the parties in working towards a negotiated agreement- this aspect also reflected in the definition of Mediation. However, there is also, a further point to be considered the mediators do not propose an agreement. The parties are the ones who decide what they want as opposed to litigation, where a decision is imposed on the litigants. Thus, in Mediation, the parties are in ultimate control of the process, and they also determine the outcome of whether or not they will be an agreement?

Undoubtedly, because of that, the parties are more likely to uphold the terms or abound by the Terms of Agreement (TOA) reached because they reached the agreement themselves. The discussion in the preceding paragraph has indicated that mediators do not impose any suggestions or decisions; instead, they facilitate communication between the parties. Nevertheless, if one puts that vis litigation, there are so many benefits that meditation has though, this is not to say that litigation is not without its benefits.

 

Cost and Speed: 

However, there are times that litigation is not an effective tool or route to take to settle disputes. For instance, some matters have been in court (20) twenty years or (30) thirty years. In some cases the original parties are deceased, and their children or grandchildren will carry on with the case which must have cost the deceased a fortune and eventually the children.

Given these points, Mediation is faster and cost-effective, because, in most cases under the mediation process, parties settle within a day or two days.

 

The Interest of the parties is Protected: 

We also pointed out that under Mediation the interest of the parties is well protected unlike in litigation that is more focused on enforcing the letters of the law and the reason is that the court can only give effect to the original intent of the parties, however, the problem with this is that the original intent might with the passage of time changes in circumstances. It may not accurately represent the parties’ needs and interest when the disputes occurred.

 

Preserves Relationship: 

We ascribed the above-mentioned subtheme as the selling point of Mediation as there is no adversarial tune to Mediation as opposed to litigation/ court where there is a loser or victor. However, in Mediation, the decision or agreement reached is usually one that both parties are comfortable with.

 

We illustrate that with Professor Goodman’s analogy- he stated ‘that they are two sisters who lived together and wanted to cook different meals. However, they both wanted to use orange in preparing these different meals. However, there is a problem with that because there is only one orange in the house, and they both needed the whole orange. Ordinarily, if this matter was taken to court, the court will rule that the orange be divided into two so each can get one to use. The problem with that is that half an orange will not make either of the meals they want to prepare. However, in Mediation, which deals with the parties’ interest, there is common ground- they both have an overlapping interest: one of the sisters only needs the orange to make an orange juice while the other needs the orange rind to prepare a marmalade. So the sister that needs the juice can say ‘okay let me squeeze out the juice, and you can have the rind of the orange ‘and vice versa.’

Against this backdrop, in Mediation, parties can make concessions and compromise. In other words, there are no losers or winners in the mediation process. Instead, it is a win-win situation for both parties. The parties go home happy. It is essential to point out that we also revealed that under the International Mediation Institute (IMI). They have this open feedback digest in their Mediator’s profiles where the previous parties can pen down or leave their feedback on their mediators’ performance instead of the recommendation or short biographies captured by the mediators or institutional bodies. We agreed that this is a reasonable practice and a good practice as it has the same effect as a review. However, at the same time, we pointed out that it has a drawback or a disadvantage. Some recalcitrant parties or difficulty parties can leave horrible comments that would affect the mediators, or the institutes practise.

 

2)  The Criteria for choosing or finding the right Mediator:

In furtherance, to the whole process, parties must find a mediator that is the right fit for the particular disputes that they are trying to resolve because for a mediation to be successful, it is vital that the parties can trust the Mediator and that they are comfortable around the Mediator.

For instance, in the Multi-Door Courthouses, when a dispute is referred to them, they choose the Mediator from the panel of neutral that they have or find the most suitable Mediator to handle the matter and the mediators are to sign a disclosure form indicating if there is a conflict of interest and if there is then they will appoint another mediator for the party. Though that does not stop the parties from indicating the Mediator that they would want to mediate their matter, in some cases, the parties with the help of their lawyers would choose the mediators they want. In so doing, they have to consider certain things. Some of the criteria that parties can take into consideration when finding or choosing the right Mediator are as follows:

 

a) Area of Practice: 

 

The party should find out how much experience the Mediator has in that particular area of dispute. For instance, if it is a family dispute or a work-based dispute, they would want to know if the Mediator has handled those kinds of disputes in the past and then follow that up.

b) Experience: 

It makes sense for parties actually to want an experienced mediator. Having an experienced mediator is vital for resolving disputes expeditiously. In other words, if the parties can ascertain how many cases the Mediator has handled and how many were successful, then that would save them cost and time.

 

c) Professional Training:

Another crucial consideration is the professional training for mediators. Parties should look at for or ask for the type of training that a mediator has had in the past. For instance, has the Mediator received a formal professional mediation training and for how long? Did the training the Mediator undertake met the international standard? What type of certification does he or she have? These questions are fundamental, and an upshot from this subtheme is the Mediator’s educational background or professional background.

 

d) Mediator’s Educational / Professional Background: 

We pointed out that some parties are more comfortable with an engineer handling their matter if, for instance, they have a dispute centred on or around construction, they will feel more confidant or comfortable if the Mediator has a first degree in civil engineering.

 

e) Subject Matter Expertise:

This subtheme is related to the aforementioned first consideration and professional background. One of the focal points here is that parties need to determine if the Mediator is an expert in the particular area of the dispute that has arisen or if he has the necessary knowledge of that particular industry. Because in some situations, the specific knowledge of that particular industry can make the mediation process more efficient. Though this is a bit objective, people who believe subject matter expertise are not of primary importance generally but except in specialised areas like environmental disputes, maritime, and very technical disputes. Now, asides that they are some other people who believe that is not important at all- whether the Mediator has the subject matter expertise as long as the Mediator is well trained in Mediation and has an experience as a mediator.

However, it is actually up to the parties to determine whether or not the subject matter expertise is essential because they know or better understand the disputes than anyone else.

 

d) The Mediation Philosophy or Approach employed by the Mediator:

We agreed that they are different approaches that mediators can employ or use, and in the same vein, some mediators are passive and they guide the parties, while some mediators are not. Thus the mediators can employ different styles, so parties should consider the different approaches and see what works best for their matter and choose accordingly.

 

 

3) Whether the mediators are allowed to use only the facilitative or evaluative Mediation, or can the mediators use a combination of the two meditation styles?

We pointed out that there are different types of mediation styles/ philosophy or approach. Nevertheless, in regards to this discourse, we concentrated on facilitative and evaluative. We also indicated that it boils down to the disputes’ nature in some cases, the Mediator might prefer to employ both of them or employ one of them.

 

Conclusion

We concluded that valid points raised in this discourse are crucial factors that would nudge potential users and disputants to Mediation. We also identified that finding the right Mediator is essential for resolving disputes expeditiously and effectively because making a mistake in choosing the wrong Mediator could affect the desired outcome.

Finally, once disputants have made a wise decision about their Mediator’s choice. It is to be noted that they must bear in mind that the process is entirely voluntary; hence they can choose to disengage from the process as long as they have not signed the Terms of Agreement (TOA).

 

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

 

Reference:

The LMDC Law 2007

CEDR Mediation Handbook, 7th edition.

Professor Andrew Goodman, Orange Analogy cited at the Enugu State Multi-door Courthouse: Mediation Advocacy & ODR Awareness for Lawyers webinar held on the 30th September 2020.

International Mediation Institute (IMI) <https://imimediation.org/resources/background/choosing-right-mediator/> accessed 22nd December 2020

Chinwe Umegbolu,  Why Mediation? A Critical Review.”  (Research Gate 2019)

 

Episode 7: The Similarities between the Customary Arbitration and the Modern-day Arbitration

 

 

 

Abstract

I was thrilled to welcome Mr Johnson Amaechi, a practising lawyer in Nigeria and a graduate of the renowned Obafemi Awolowo University. We extensively discussed the following questions: ‘What is the concept or philosophy behind the Customary Arbitration’?

This question predicates the 5th Episode of Expert Views on ADR (EVA) where Mr IK Onuoma and I highlighted that they are two forms of Arbitration in Nigeria.  The discussion leads to the second question ‘What is the current development of Arbitration in Nigeria.’

 

Introduction

What is the Philosophy or Concept behind the Customary Arbitration?

We pointed out that the concept behind the customary arbitration in Nigeria dates as far back as even the formal organisation and reorganisation of Nigeria space. That is before the amalgamation of the three protectorates. They had a dispute resolution mechanisms within those colonies and even after amalgamation, for instance, in the Eastern part of Nigeria where every family had the head of families oversees the activities of the entire family, and it cuts across eastern part till date. The head of the family or the traditional head of the community sits as what is now known as an arbitrator or mediator when there are disputes within those communities or villages.

 

What is the Current State of Arbitration in Nigeria

Similarly, we revealed that they had the same situation in the western part of Nigeria (the Yoruba’s), this community were led by the traditional head known as an Oba, Olubadan or the Baale – he sits as the mediator or arbitrator to settle many disputes amongst his people. This customary or traditional system was the only means of settling disputes before the court system was introduced during the colonisation of Nigeria.

It is pertinent to point out that the palace where the Oba lives is the seat of arbitration, so this practice was re-introduced as the modern-day ADR to help settle matters due to the problems associated with the court system. However, in some communities in Nigeria to be precise Enugu State, they still have the customary courts and even have the customary courts of appeal where the appeal from the customary courts goes to, even after the institutionalisation of arbitration in Nigeria. They still practice that traditional or customary method of settling disputes, and we went on to mention that the concept of law and justice under the traditional method of settling a dispute is rooted in the spirit of oneness and in the concept of togetherness-Ubuntu which connotes “I am because you are.”

 

Conclusion

In this episode, we reaffirmed the notion that there are two forms of arbitration in Nigeria; the first is the customary arbitration; the second one is the modern-day arbitration. The earlier is determined by ‘omenala’ (the customs and tradition of the land) while the modern rules of arbitration govern the latter. We believe that the potential users that would listen to the full podcast would appreciate the attributes of the customary arbitration which overlaps or is the same with the modern-day arbitration and will not hesitate to try out arbitration or insert it in their contract agreement.

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

 

References

Maria Federica Moscati, Michael Palmer,  Marian Roberts (eds), Comparative Dispute Resolution; Edward Elgar Publishing, 2020. p.519

Jerome, Barrett, Joseph Barrett, A History of Alternative Dispute Resolution: The Story of a Political, Cultural, and Social Movement (Published in Affiliation with the Association for Conflict Resolution 2004) p.5

Chinwe Umegbolu, Bargaining in the Shadow of the Law: The Facts of Divorce as They Stand Today (Journal Resolution Institute March 2020).

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

The Psychological Dynamics in Dispute Resolution: the interplay between the id, ego, superego and apology, through the lens view of Sigmund Freud

 

 

 

Abstract

Is there an interplay between ego and apology, which are two sides of a coin when it comes to dispute resolution? I and Estar (Esther)  Olaedo Ebigbo, a First Class graduate of psychology from the University of Nigeria, who works with persons with disabilities; an inspirational singer, provided a comprehensive insight into the above-stated question. We also dealt with ‘whether people can have a subject matter bias’? The reason for this question predicates the 5th Episode of EVA where we discussed that some lawyers are yet to embrace ADR.

 

Introduction 

 

Definition of Ego

To have an insight into the above subject matter, we foregrounded the definition of ego.

The ego is a Greek word for eimi.[1] We elucidated that the ego can be described as a person’s sense of self, their sense of identity, their sense of importance and self-esteem.[2]   We validated the above submission with  Sigmund Freud’s theory-he is one of the founding fathers of Psychology, psychoanalysis to be précised.[3]

According to Freud, the ego is part of the mind that takes a decision, precisely there are three parts of the mind, which are the id, ego and superego.[4]  Thus the ego is the part of the mind that is instinctual, biologically is that part of the individual that drives the desires, their wants irrespective of the consequence.[5] However, to understand the ego, one needs to understand the id and superego, The ego operates on an unconscious level and the superego, on the other hand, is made up of the individual morals, values, upbringing, social norms and expectations.[6]

We went on to analyse the superego, which has two components the conscious and the ideal self. The conscious is that part of an individual that makes him feel guilty when they do something inappropriate- the ideal self is that imaginary perfect self, of whom one who ought to be. These constitute the superego; it takes decision by negotiating between the id and the superego.  For instance, if an individual likes sweet things and he goes past a candy store or an ice cream truck, and he wants to get the ice cream, then the superego reminds him that sugar is not good for him. What does the ego do? The ego thinks about what is actually best for an individual.[7] The person’s ego might say ‘just for today let me have one cone of ice cream that is the ego. It is that part of the mind that thinks and takes decisions. So in psychological terms, that is what the ego is and so when one talks about an apology. An apology appeals to the superego component of the mind where a person’s conscious and ideal person lies.

 

Apology

We delved into how an apology appeals to the superego component of the mind where a person’s conscious and ideal person lies-[8] thus the person does not want to be a jerk; he wants to be a nice person. He wants to show compassion and understanding. For example, where a victim of a crime offers the offender an apology especially when it is genuine, the person’s superego will be able to exact influence on the ego, and most times the person’s ego will say ‘I am going to let it go.’ Another example, if Mrs AC says sorry to Mr AC, Mr AC’s Conscience will feel guilty if he does not accept especially if it is genuine. In order words, it is his ego- that accepts or mellows down at least.

In view of this, we pointed out that in litigation when people are fighting, they do not hear each other. However, mediation offers that opportunity to sit down with each other, and if they have an excellent mediator, they will be able to listen, hear each other out. A lot of bottled up emotions, aggression, anger and frustration, can let out. Now one party can see the other party and vice versa. They will be able to acknowledge each other and understand where they are coming from, which is important for the ego because when the parties are fighting the ego is bruised, and it is threatened. Thus, the ego pumps itself up and is ready to receive blows and give blows. So when a party has an apology coming is like soothing to the ego, it’s like a release, it disarms that threatened and bruised ego.

Furthermore, even if one cannot achieve an immediate result like settlements or reconciliation, but at least they can come to a state where parties are more willing to address the fact. For instance, if Mr XM is arguing blindly, then the person’s ego is telling the person if he agrees with let’s say, Mr XY, then he is a loser, or he is stupid. He will keep arguing until he comes to a stage where that ego can function a bit more in a healthy way.

In other words, he drops the unhealthy way of reasoning and will be able to let his guard down then he can focus on solving the problem at hand. That goes a long way in making the mediation process a successful one and resolves the matter. So even when they do not resolve or reconcile they have aired their views, they know how their actions have impacted the other party, and have talked about it and know what happened and they can do better next time, it must not always end in settlement. We used one word to describe it therapeutic -is therapeutic, and it is healing. Hence, in mediation, the mediator and the opposing parties all have all levels of emotional maturity however we pointed out, that if the mediator is dealing with a psychopath; it is impossible to achieve success. Reinforcing the view that there are cases where mediation works perfectly, and there are cases where litigation is the best fit. Evidently, the above subject matter will be of great help to both the lawyers and mediators in resolving disputes.

 

The second question raised is ‘Whether people can have a subject matter bias’? The reason for this question predicates the 5th Episode of EVA where we discussed that some lawyers are yet to embrace ADR. 

We provided a concise answer to the above question by pointing out that in life in general, there is bias everywhere, especially where someone is not yet familiar with the subject matter they tend to be biased. So the human mind is such that it takes something that it does not know and shoves it into one category in mind, and sometimes, this knowledge is inaccurate. Hence, the one that takes away bias beyond every other thing is a personal experience.[1] Thus the need to give people the opportunities to experience this new subject matter is through awareness.

However, we noted that social media can be used for reasons that are not so favourably in all circumstances, but it can be used as a platform for good. It can be used to create more awareness on the above subject matter that needs to be heard and learnt because it will have an impact on society.

Power of Education:

Another point mentioned was education, not just at the tertiary level but also at the primary level- when the kids are tender. They learn about the justice system and how they can get justice by going to court; the need to also include ADR into the curriculum as a compulsory course is vital. Because it creates a balanced story rather than a one-sided story as it is the case in some schools in most jurisdiction.

 

Training:

Furthermore, we highlighted that if more lawyers train in becoming mediators, then they will also create more opportunities to let their expertise to be known. Moreover, suppose the traditional leaders, religious leaders who have a substantial influence in the society can be able to give words of endorsement towards its usage. In that case, it can go a long way to sensitise the subject matter. Thus this is the enumerated factor that would take away or solve subject matter bias when it comes to lawyers embracing ADR.

 

Conclusion

To reiterate, there are disputes, which are more suited to ADR and not suited to litigation vice versa. However, there is a caveat for potential users –which is that litigation is designed to focus on issues rather than on interest. Though this is not to say or suggest that litigation is bad. Rather the focal point made here is that litigation should not be seen as the only option or as the best option. They are other available options under the ADR mechanism. Hence the psychological and emotional factors should be borne in mind when making a choice.

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

 

References:

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.

[1] Robin Hard, The Routledge Handbook of Greek Mythology Based on H.J.Rose’s Handbook of Greek Mythology (Published by Routledge Taylor & Francis Group 2004) p.4

[2] Thomas Metzinger, The
Ego Tunnel the science of the mind and the myth of the self (Published by Basic Books
2009) p.5

[3] Jerome Neu, The Cambridge Companion to Freud (Cambridge University Press, 2006) p.2

[4] Ibid (n2)

[5] Ibid (n3)

[6] Ibid

[7] Ibid (n2)

[8] Susan Heitler, Therapeutic Mediation: An Alternative to Costly Litigation (Published by Colorado Lawyer 1998) p.4

Stuart Blake et al., A Practical Approach to Alternative Dispute Resolution  second edition oxford university press  2012

[1] Artika, Tyner, Unconscious Bias, Implicit Bias, and Microaggressions: What Can We Do about Them? (American bar association 2019) <https://www.americanbar.org/groups/gpsolo/publications/gp_solo/2019/july-august/unconscious-bias-implicit-bias-microaggressions-what-can-we-do-about-them/> accessed 7th December 2020

 

Episode 5: What are the factors that could influence the selection of an ADR Option?

Abstract
In episode 5 of Expert Views on ADR (EVA) Podcast, two questions were raised, the first one was ‘what prompted the birth of the ESMDC’ and the second question was, ‘what could influence the selection of an ADR option’? 
I had the opportunity to discuss these questions with Mr Ikechukwu Onuoma Esq (Notary Public), the Managing Partner of Obra Legal; a lawyer with over 14 years of experience in Litigation, Domestic and International Arbitration and Negotiation. He is also a Charted Mediator who has mediated over 15 cases at the Enugu State Multi-Door courthouse (ESMDC) since the inception of ESMDC in 2018 and an Editorial member board the Enugu State Multi-Door Court House Journal.
We concluded that though they are factors that would influence selecting an ADR option, for both the parties and lawyers. However, they are motivational factors, especially for the lawyers that would encourage them to embrace ADR.
Introduction
What prompted the birth of ESMDC?
We provided an overview that was centred on four (4) key points. They are as follows:
1) To enhance access to justice by providing an Alternative Mechanism to supplement litigation in resolving a dispute.
2) To minimise the frustration faced by citizens in the justice delivery process.
3) To provide a legal framework for a fair and efficient way of settling matters through ADR.
4)  To become the hub of ADR in the whole entire eastern region.
What are the factors that that could influence the selection of an ADR Option?
In Nigeria, generally, three factors were highlighted that could influence an ADR option’s choice or selection. These factors are as follows:
1)  The mindset of legal practitioners, collaborative agencies, community and friends.
2)  Efficiency and speed in the justice delivery system.
3)  Finance for lawyers.
Given this discussion, another prominent question emanated on ‘what could motivate lawyers to tow the ADR path to ease the court’s burden?
Motivational factors for lawyers to tow the ADR Path:
Culture, Awareness and Career (CAC) were revealed as the three motivational factors.
Culture: Reveals itself in the sense that customary Arbitration already forms an intrinsic part of our culture in Africa. Validating the above view, Ikechukwu Onuoma elucidated that in the African continent the ADR already forms a part of their culture thus a constant reminder of these would help remind the lawyers and the potential users to opt for ADR.

For example, he revealed that ‘in the African culture they have the Obi’s, Baale’s, and the Emirs who otherwise act as arbitrators over the disputes between the parties.[1] Also, he exemplified the above submission by citing the famous book written by Chinua Achebe. He states, “we will find iconic scenes in his books Things fall Apart, references have been made to families who have been brought to the Igwe and he settled their matters.”He emphasised that ‘as a consequence, it shows firstly that the elements of Traditional African Method of Settling Disputes (TAMSD) –the parties submit voluntarily, which is the same element overlapping with ADR, the second is that the parties would accept the terms which overlap the ADR, – acceptance of the terms.

Finally, the parties be it the kinsmen or the communities will also agree that they will be bind by the terms of that customary arbitration or settlements and sometimes in order to be bind- involves some sort of oath-taking in their customary rudimental arbitration and exactly this binding nature of TAM flows into the same ADR now institutionalised, hence culture is key.’

Awareness: This is where the Enugu State Multi-door Courthouse comes into play. The director, Mrs Caroline Etuk, has taken advantage of the new terrain to create the new Mediterranean through campaigns and training.
Career: If most of the ADR matters done by lawyers will count or form part of the requirement for those who want to be appointed as a Senior Advocate of Nigeria (SAN) or a judge. That would encourage lawyers to refer more cases and advocate or enlighten their clients to opt for ADR.
Some of the Feedbacks/ comments received for this episode:
Insightful session-Little wings
Very insightful session on ADR. I agree that awareness should be thrumped up. Culture is another element that should be progressively embedded in formal ADR processes for greater buy-ins, especially in Nigeria’s eastern part.-Justina Dillion
I just started listening to your podcast, and I can tell you that I have learnt so much about ADR.
Keep up with the good work.- Jude Oke
Conclusion
Hence we hope that all the points raised in this discourse should not discourage potential parties or the lawyers who are yet to embrace this scheme rather it should serve as a motivational factor or an incentive to embrace ADR / opt for ADR.
To hear the full version of this episode, click here.
Reference:
Chinwe Umegbolu, Dispensation of Justice: Lagos Multi-Door Courthouse (LMDC) as a Case study (Ongoing research University of Brighton 2018-2021).

Episode 4: Arbitration as it stands today.

 

Abstract

 

In this episode of Expert Views on ADR (EVA), I and Ms Chika Maduakolam, a PhD Candidate in Socio-legal studies at York University, Toronto; a lawyer with over ten (10) years experience in civil litigation and dispute resolution presents a general overview of arbitration and why it is a suitable process for potential users.

Introduction

An overview of Arbitration

We started off with what is ADR? Then delved into what arbitration means at a basic level. In furtherance, comparative analysis between arbitration and the traditional African method of settling disputes (TAMSD) was revisited. We went on to look at the similarities of  Arbitration and litigation, which then led us to address a pertinent question on why arbitration is viewed as the new litigation.

Why then is Arbitration a good alternative to litigation?

Essentially, to tackle the aforementioned question -we critically analysed the neutrality of the arbitration process, its flexibility, cost, time, the cordial relationship of parties and confidentiality of the arbitration process vis-a-vis litigation.

 

Ad hoc v Institutional arbitral bodies

A summary of the advantages and disadvantages of the above-mentioned sub-theme was stated, and some of the institutional bodies from different jurisdiction were highlighted.

 

Scope of matters covered by Arbitration

The general notion that the scope of matters covered by arbitration is only commercial matters or labour disputes were dispelled in this episode. We highlighted several matters that can go to arbitration.

 

Some comments/ feedback for this episode

Well done, Chinwe. The interlink between ADR and our traditional way of settling Dispute in Nigeria makes ADR a more viable option. Kudos!!!-IK Onuoma

Well done- Mehabad S.Ali

ADR is fast getting the recognition it deserves. Keep up the good work- Nneka Egbunike Ali.

Very insightful session on the pros and cons of arbitration both in the formal and informal settings.  Keep it up, Chinwe.- Justina Dillion

Good job, well done.- Steve Adikaibe

Insightful… educative…thanks Little Wings

 

Conclusion

In sum, arbitration is a process where parties choose an independent, impartial decision-maker to settle their matter, the arbitral award that is given is binding on both parties. To an extent, arbitration does save parties some measure of cost, some measure of time, and most importantly, it gives parties flexibility over the process. It is suited to a whole lot of matters, and it does not have to be expensive, it all depends on the expert parties choose, and it depends on how they choose the expert.

Thus from the aforementioned comments/ feedback- to an extent, this episode has demystified arbitration, for potential users to embrace this process.

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

 

 

 

Scope of Matters Settled Under ADR: Episode three (3) of EVA.

 

 

Abstract

In this third episode of Expert Views on ADR (EVA) Podcast, I and Mr John Osegi who is a Mediator at the Lagos Multi-Door Courthouse (LMDC) and a practising lawyer in Nigeria, critically analysed the type of matters that are amenable to ADR; with the hope of enlightening potential users and litigants on the type of matters that can be sent to ADR. Hitherto we discovered that some matters are best handled under Mediation, which is part of Alternative Dispute Resolution (ADR).

 

Introduction

 

Summary of Matters that can be settled under ADR:

They include Family Disputes, Commercial Disputes, Probate and Administrative Estates, Maritime Disputes, Auxillary Matters in particular Custody, Small Claims, Landlord and Tenant Disputes. To reiterate some of the aforementioned disputes are best settled via Mediation.

It is apt to point out that small claim matters involve a small amount of money for instance in Lagos State there is a law that fixes small claims to the amount of 5million naira (equivalent to 9,958 pounds 68 pence) and below. In order words, a million is a small claim matter but anything above 5million would be referred to or would go to the magistrate courts. Small claims can easily be amenable to mediation and ADR.

 

Disputes not covered under ADR:

They consist of the following: Election Petition and Divorce.

Election Disputes:  It is essential to point out that elections disputes are not yet being covered under ADR but theoretically it can. Essentially in Nigeria where we play the zero-sum game of politics-the winner takes all. In certain instances, they could be some form of power-sharing although that perspective may not be too soon in coming because of the way Nigeria politics is arranged.  But then on a higher level particularly when it has to do with countries that are severely under some form of widespread confusion and violence. For instance, what happened in Kenya where Kofi Annan had to lead a mediation team to resolve a dispute at a particular level. Mediation can actually help to create an enabling environment for political disputes to be resolved.

Divorce: On the contrary, ADR cannot pronounce a decree nisi and a decree absolute.

 

Probate and  Administrative EstatesConversely, Mediation can not give the letter of administration that is the job of the court, mediation cannot admit the will etc.

 

Feedback / Comments from this Episode:

Very incisive Chinwe, this episode opens new frontiers in ADR.- Ikechukwu Onuoma

This podcast is really getting more interesting. I must commend the efforts of Chinwe Umegbolu Esq. for taking time out to do these very special sessions that have been extremely expository. The simplicity of her approach makes it easier for the potential users to know, understand, appreciate and have more confidence in the ADR process. I’m particularly convinced that this great hard-work channelled in the right direction. Kudos to you- Stephen Adikaibe

This episode captures the fulcrum of ADR. Permit me to name it the doctrine of severance. When you severe the substance from the riffraff, you enjoy the cascading beauty of ADR. Often times behind the lack of will and passion for ADR lies the inability to severe ADR matter from others. When people can actually draw the tiny line between litigation and ADR matters, they would naturally embrace ADR without much persuasions because the benefits are priceless. Putting it categorically, ADR is always a win-win situation. Nothing compares with that. .. but first, you must be able to know matters that are ADR in nature! Kenneth C. Joshua

A big advocate of ADR you are, you practically devote yourself to regular people like me to know about ADR and knowing how and when to use ADR ( mediation ). We thank you for your dedication in informing us on ADR, May God continue to give you the strength to carry on. Hurbert Laplante

It’s very interesting. This episode has raised some fundamental issues that would enlighten people more on the matters that are best handled at ADR. Thanks, Chinwe. Great job. Atuluku Abdul

 

Conclusion

This episode was able to identify matters that can be settled under ADR and those matters that cannot be settled under ADR. I hope the aforementioned discourse will propel or inspire potential users and litigants to try out ADR or Court-Connected ADR.

In sum, the above feedback/ comments demonstrate that there is a buy-in into the ADR process -which is the aim of the podcast.  To hear the full version of this episode, click here.