MEDIATION AND CONCILIATION

INTRODUCTION

In the global age of human interactions and commercial transactions, disputes generally arise as a result of disagreements between the parties involved. When these disputes arise, the need to resolve them as quickly as possible often arises, and the common methods of doing this are litigation, negotiation, arbitration, conciliation and mediation. Mediation and conciliation are significant dispute resolution (ADR) processes. It is clear that, from one perspective, the word ―alternative refers to looking outside the courtroom setting to resolve some disputes. In this respect, it refers to the long-standing approach of the legal profession and of the courts that, where it is appropriate, parties involved in civil disputes should be encouraged to explore whether their dispute can be resolved by agreement, directly or with the help of a third party mediator or conciliator.

The traditional method of resolving such disputes where negotiation failed was by litigation. Globally, this traditional method of dispute resolution is gradualy giving way to alternative dispute resolution techniques, especially in this electronic age. If it were practicable businesses would desire an electronic resolution of all disputes! Karl Mackie[1] identifies two major under-currents leading to this global growth. The first relates to dissatisfaction with the costs, delays and uncertain outcomes of the litigation systems (and, to a lesser extent, arbitration, their traditional alternative). The second relates to a deeper social transformation involving our search for systems, which can adequately match the speed, responsiveness, customer orientation and globalization of business and technological change.

Another reason, which makes litigation unattractive to a vast number of businesses, is the fact that some disputes are of a sensitive and confidential nature and commercial entities may be unwilling to accept the determination of their rights in the full glare of the public. Businesses are more likely now than ever to need rapid decisions and dispute procedures, which support rather than undermine business and customer relationships, rather than by proceeding to a formal ―winner v loser decision by a court. There is no gainsaying the fact that long delays in the court process involve clear barriers to justice: justice delayed is, indeed, justice denied. Some ADR processes like Mediation and Conciliation indeed have emerged in response to delays. There are strong reasons to support and encourage parties to reach a solution through agreement, especially in disputes where emotional issues combine with legal issues, provided that this alternative process meets fundamental principles of justice.

In this regard alternative dispute resolution techniques are becoming popular because they appear to answer these needs as well as offset some of the defects of the traditional systems.

MEDIATION AND CONCILIATION

Alternative Dispute Resolution (ADR) consists of a variety of approaches to early intervention and dispute resolution. Many of these approaches include the use of a neutral individual such as a mediator or conciliator, who can assist disputing parties in resolving their disagreement

Mediation, an alternative dispute resolution (ADR) mechanism is the traditional way of resolving disputes peacefully in agrarian rural based Nigeria. The mediator’s authority was hinged on his standing and the respect accorded to him in the community. In the Nigerian traditional societies, mediation was used as a tool for preserving cultural norms and values. Mediation prevented disputes from festering, maintained peace and preserved traditional values (e.g. the elder is always right, the younger has no alternative but to accept the words of the elder).

The court system was introduced with the advent of colonialism and urbanization. Urbanization relegated mediation to the background though customary ADR is still recognized in the Nigerian Legal System. In the case of Okpuruwu vs. Okpokam [2]the Honourable Justice Oguntade JCA (as he then was) observed thus: –

“In the pre-colonial times and before the advent of the regular courts, our people (Nigerians) certainly had a simple and inexpensive way of adjudicating over disputes between them. They referred them to elders or a body set up for that purpose. The practice has over the years become strongly embedded in the system that they survive today as custom”.

LEGAL FRAMEWORK AND THE DEVELOPMENTS REGARDING MEDIATION IN NIGERIA.

Mediation in Nigeria has developed into a more structured process and within a legislative framework. The Nigerian Arbitration and Conciliation Act Cap A18 Laws of Federal Republic of Nigeria (LFN) 2004, (the “Act”) an adoption of the UNCITRAL Model Law on International Commercial Arbitration was enacted in 1983. The third schedule of the Act contains the Uncitral Conciliation Rules. The Rules apply to conciliation of disputes arising out of or relating to a contractual or other relationship where the parties seeking an amicable settlement of their dispute have agreed that the conciliation rules apply.[3] The Act like the Model Law does not define conciliation however conciliation in Nigeria is often used synonymously with mediation.[4]

Alternative dispute resolution as an alternative to imposed / rights based decisions (e.g.arbitration and litigation) is encouraged and promoted by our various High Court Laws, the rules of court and the government. Mediation continues to be a tool in Nigeria for the resolution of disputes in an amicable manner at less cost usually on a win-win basis and with the benefit of face saving. Mediation encourages the restoration of the relationship of the parties and avoids it being prejudiced by a “battle” before a court or tribunal with power to impose a decision[5].

The Nigerian Legal System has always recognized the compatibility of ADR with the court system. From the inception of the court system there have been provisions in the Laws of Nigeria enjoining Judges to encourage reconciliation between the parties. There are specific provisions in the High Court Laws in this respect. For example,  Section 24 of the High Court Law of Lagos State chapter H3 Laws of Lagos State 2003 states thus: –

Reconciliation in civil cases: “In any action in the High Court the courts may promote reconciliation among the parties thereto and encourage and facilitate the amicable settlement thereof ”[6]

Section 25 also states thus

Reconciliation in criminal cases: “In criminal cases the High Court may encourage and facilitate the settlement in, an amicable way of proceedings for common assault or for any other offence not amounting to felony and not aggravated in degree, on terms of payment of compensation on other terms approved by the court”[7]

It appears that these provisions were not optimally utilized. A more proactive use of the court’s power to use ADR was encouraged by the need to decongest the court system and ensure a more effective and expeditious dispute resolution system. In Nigeria a change was pioneered by the Lagos State judiciary motivated by the Lord Woolf’s Reforms in Britain to amend the rules of court to place emphasis on active case management by judges. Consequently the High Court of Lagos State promulgated the Civil Procedure Rules 2004. Section 1(2) of the rules provides that the application of the rules shall be directed towards the achievement of a just efficient and speedy dispensation of justice. A major change in the system was the requirement for a pre-trial conference prior commencement of trial and after close of pleadings.[8]The rules required the judge to cause to be issued to the parties and their legal practitioners if any a pre-trial conference notice. Listed among the purpose of the pretrial conference was promoting amicablesettlement of the case or adoption of alternative dispute resolution. Order 25 rule 3[9] gave the judge the power to take action as may be necessary or desirable to facilitate the just and speedy disposal of the action. It’s mandatory that parties attend pre-trial conferences.

Pre-trial conference is conducted in an informal manner, the judge descending from his high seat and joining counsel and litigants in the well of the court. Counsel abandon the traditional horse hair wig and black robe all of which help to create a relaxed atmosphere which is more conducive to amicable resolution. Judges in the judicial service system therefore playing a role in settlement of disputes through the active participation of parties as against the imposed decisions they would usually render. Upon conclusion of the pre-trial conference the judge issues a report and the matter is thereafter transferred to a trial judge in the event that it’s not settled at the pre-trial conference stage. Indeed several cases are now settled at the pretrial conference stage rather than go to trial.

The trend pioneered by the Lagos State Judiciary is being followed in other states with major commercial centres.

MEDIATION AND MULTI-DOOR COURT HOUSE SYSTEM

An innovation aimed at offering an institutional framework for resolution of disputes by ADR whether arising from cases instituted in the court system or outside of it (walk-ins) is provided by the Multi-door Courthouse system.

Multi-Door Courthouse offers disputants various doors to disputes resolution, early neutral evaluation, arbitration and mediation. Mediation is a popular method used at the Lagos Multi-Door Courthouse due to its advantages including that of face saving, the absence of an imposed outcome and / or an assessment of the parties rights and obligations. The users of the system may be referred by the judge from the pre-trial conference stage. Others usually referred to as walk-ins go directly to the Multi-door Court house. The initiative is usually taken by one party and the other is requested to submit.

A settlement agreement entered into once reduced into writing and signed by the parties is forwarded to the referral judge in the case of court referred matters. In respect of walkins the ADR judge would endorse a settlement agreement as an enforceable consent judgment. There are a number of highly trained CEDR (UK) accredited mediators listed on the Panel of Neutrals of the Lagos Multi-door Courthouse.

From statistics available the number of cases settled at the Multi-door Courthouse is comparatively low when compared with the number that remains in the litigation system. A major reason for this appears to be the reluctance of parties to submit to the mediation process.[10]

Other jurisdictions like the High Court of the Federal Capital Territory Abuja Kano High Court have replicated the Multi Door Court House concept.

As earlier stated, the main statute regulating the ADR process in Nigeria is the Arbitration and Conciliation Act.[11] Which is an adoption of the UNCITRAL Model Law on International Commercial Arbitration 1985.[12]

Section 37 of the Act provides as follows: –

“Notwithstanding the other provisions of this Decree, the parties to any agreement may seek amicable settlement of any dispute in relation to the agreement by conciliation under the provisions of (Part II) of this Decree.”

The third schedule of the Act contains the UNCITRAL Conciliation Rules.[13]

Various sector specific statutes specify ADR as the mechanism for resolving disputes[14].

The Nigerian Communications Commission (NCC), the regulatory body for the telecommunications sector is a pioneer in this respect. The Nigerian Communications Act 2003 (The Act) provides that the “Commission may resolve disputes in such manner including but not limited to alternative dispute resolution processes and upon such terms and conditions as it may deem fit”.[15] “The Act provides that the Commission, in carrying out its functions under subsection (1) of this section, shall always be guided by the objective of establishing a sustained dispute resolution process  that is fair, just, economical and effective and not be bound by technicalities, legal form or rules of evidence and at all times act according to the ethics of justice and the merits of each case.”[16] This Commission in particular has formulated rules for the mediation of industry specific disputes.

CONCILIATION

Conciliation is the adjustment and settlement of disputes in a friendly manner.[17] It has been known over the years as a method of settling disputes by consensus rather than by adjudication. It involves reconciling, appeasing, uniting and winning over the other party.[18] In recent times, the systematic use of conciliation in dispute resolution has assumed more importance because of its efficiency. In Nigeria, conciliation is recognized by the Arbitration and Conciliation Act.[19] Under the Act, the word ‘conciliation’ is not defined. The Act merely provides that the parties to any agreement may seek amicable settlement of any dispute in relation to the agreement by conciliation. Conciliation is a technique of dispute resolution wherein a third party or conciliator (who may or may not be totally neutral to the interests of the parties) is used by the parties to help build positive relationships.[20]

Conciliation and mediation are similar in that the dispute is resolved by consensus and is entirely a decision of the parties and not of the third party, i.e. the conciliator or mediator. In both cases, the parties appoint a neutral person. In Nigeria for example, the Trade Dispute Act[21] provides for the appointment of a mediator jointly by the employer and the workers for the settlement of a trade dispute. Section 6 of the same enactment provides for the appointment of a conciliator by the Minister of Labour where the mediator fails.

The learned authors[22] of Law and Practice of Arbitration and Conciliation in Nigeria, observe that conciliation and mediation are often synonymous. The usual distinction between the two is that in conciliation all that the conciliator does is to explore the opportunity for settlement. He is not necessarily a reconciliator and he has no power to bind the parties. He is not an adviser to the parties, who should turn to their lawyers and experts for advice. He merely provides the environment for negotiation. He may assist the parties by helping to establish communication, clarifying mis-perceptions, dealing with strong emotions, and building the trust necessary for cooperative problem solving.[23] Some of the techniques used in conciliation include providing for a neutral meeting place, clarifying initial messages between or among the parties, regarding perceptions or mis-perceptions, and affirming the parties’ abilities to work together.

Mediation in its normal form on the other hand, demands that the mediator be more leading in that he may make recommendations for the consideration of the parties. His role is to persuade the parties to focus on their underlying interests and concerns and move away from fixed positions that often cloud the real issues. His function is to act as a facilitator or broker.[24]

Martin Hunter and Allen Redfern[25] state that a mediator is usually taken to be a person accepted by the parties, whose role is to help them reach an agreed settlement. He sees each party privately and listens to their respective viewpoints. He makes sure that each party understands the other’s point of view. He also brings the parties together in order that they may themselves achieve a compromise solution. A conciliator performs a different function, in that after discussing with the parties, he proceeds to draw up the terms of a settlement designed to represent what is, in his view, a fair compromise of the dispute.

According to Henry Brown and Arthur Marriot,[26] “Mediation is often used interchangeably with conciliation; sometimes, however, mediation is understood to involve a process in which the mediator is more proactive and evaluative than in conciliation, and sometimes, the reverse usage is used; there is no national or international consistency of usage of these terms.”

SCOPE OF CONCILIATION

Conciliation can be resorted to in relation to disputes arising out of, or relating to a contractual or other legal relationships.

Commencement

Where a party wishes to initiate conciliation, he sends to the other party a written request to conciliate. The request contains a brief statement setting out the subject of the dispute.[27] Conciliation commences when the other party accepts this invitation in writing. If it does not accept it, then there will be no conciliation. It must be noted that if the party initiating conciliation does not receive a reply within 30 days from the date on which he sends the invitation, or within such other period of time as specified in the invitation, he may elect to treat this as a rejection of the invitation to conciliate, and he informs the other party accordingly.[28]

Conciliators

Once the parties agree to commence proceedings, they jointly appoint the conciliator. Under the rules:

• There will be only one conciliator, unless the parties agree to two or three.
• Where there are two or three conciliators, then as a rule, they ought to act jointly.
• Where there is only one conciliator, the parties may agree on his name.
• Where there are two conciliators, each party may appoint one conciliator.
• Where there are three conciliators, each party may appoint one, and the parties may agree on the name of the third conciliator, who shall act as presiding conciliator.
• But in each of the above cases, the parties may enlist the assistance of a suitable  institution or person.

Stages in Conciliation

The conciliation process is as follows:

1. The conciliator, when appointed, may request each party to submit a statement, setting out the general nature of the dispute and the points at issue. A copy is to be given to the other patty. If necessary, the parties may be asked to submit further written statements, and other evidence.
2. The conciliator assists the parties in an independent and impartial manner, in their attempt to reach an amicable settlement.[29]
3. The conciliator is guided by the principles of objectivity, fairness and justice. He is to give consideration to the following matters:

(i) rights and obligations of the parties;

`             (ii) trade usages; and circumstances surrounding the dispute, including previous business practices between the parties.[30]

4. He may, at any stage, propose a settlement, orally, and without stating the reasons for the proposal. [31]
5. He may invite the parties (for discussion) or communicate with them jointly or separately.[32]
6. Parties themselves must, in good faith, co-operate with the conciliator and supply the needed written material, provide evidence and attend meetings.[33]
7. If the conciliator finds that there exist “elements of a settlement which may be acceptable to the parties’, then he formulates the terms of a possible settlement and submits the same to the parties for their observation”[34]
8. On receipt of the observations of the parties, the conciliator may re-formulate the terms of a possible settlement in the light of such observation.
9. If ultimately a settlement is reached, the parties may draw and sign a written settlement agreement. At their request, the conciliator can help them in drawing up the same.

Legal Effect of Conciliation Agreement

The settlement agreement signed by the parties is final and binding on the parties and the agreement is to be authenticated by the conciliator.[35]

Role of the Parties

A party may submit to the conciliator on his own suggestions for the settlement of a dispute. Such suggestions may be submitted by him on his own initiative or on the conciliator’s request.

Conciliator’s Procedure

The implication of Articles 7 and 9 of the Conciliation Rules is that the conciliator is not bound by the rules of Civil Procedure of the various courts in Nigeria, or the provisions of the Evidence Act but is guided by the principles of objectivity, fairness and justice. Subject to the foregoing, he may conduct the proceedings in such manner, as he considers  appropriate, taking into account the circumstances of the case, wishes expressed by the parties and the need for speedy settlement.

Disclosure and Confidentiality

(a) Factual information received by the conciliator from one party should be disclosed to the other party, so that the other party can present his explanation, if he so desires. But information given on the conditions of confidentiality cannot be so disclosed.

(b) Notwithstanding anything contained in any other law for the time being in force, the conciliator and a parties are required to keep all matters relating to the conciliation proceedings confidential. This obligation extends also to the settlement agreement, except where disclosure is necessary for its implementation and enforcement.[36]

Conciliator Not to Act as Arbitrator/Counsel

Unless otherwise agreed by the parties, the conciliator cannot act as arbitrator, representative or counsel in any arbitral or judicial proceedings in respect of the conciliated dispute. Nor can he be presented by any party as a witness in such proceedings.

Conciliation and the Limitation Period

Most actions are governed by statutory rules of limitation. In such a situation, proceedings must be instituted before the expiration of the prescribed period. An action which is instituted after the expiration of the prescribed period becomes statute-barred.

Article 16 of the Conciliation Rules provide that during the pendency of conciliation proceedings, a party is debarred from initiating arbitral or judicial proceedings on the same dispute, except such proceedings as are necessary for preserving his rights. A pertinent question that can be asked is-can a party who refrains from instituting a claim within the prescribed period maintain an action after the prescribed period?

In Inco Beverages Ltd v. Class W, Brans & Ors,[37] the Plaintiffs in a suit instituted at the Federal High Court claimed from the Defendants special and general damages for negligence in not taking reasonable care or failing to exercise care in employing an efficient and reliable work-force to ensure safe delivery of bags of granulated sugar accepted for delivery to the Plaintiffs. The Defendants applied for the matter to be struck out on the ground that the claim was time-barred having been commenced more than one year after the goods ought to have been delivered. The Plaintiffs argued that with regards to the time-bar that the parties were negotiating, time did not run against them during the period in which negotiations were on. The Court disagreed with the Plaintiffs and held that there is no principle of law or equity which says that negotiations with a view to settlement serves as estoppel to a plea of time-bar.

However, the Supreme Court in Ebaigbe v. NNPC,[38] held that the rule that negotiations between parties will not stop the time from running is subject to a qualification. Thus where negotiation involves acknowledgment of liability and formal extension of time in writing by the Defendant in favour of the Plaintiff to commence legal proceedings, time will stop running by virtue of such negotiation and the Plaintiff may institute an action after the statutory period.

The importance of this decision is recognized when Article 16 of the Conciliation Rules is considered, which prevents parties from initiating during conciliation proceedings, any arbitral or judicial proceedings in respect of a dispute that is the subject of conciliation ‘except such proceedings as are necessary for preserving his rights’. A party engaged in conciliation who wants to benefit from his right to judicial proceedings should conciliation break down must endeavor to get the other party to agree to an extension of time.

CONCLUSION

The importance of Mediation and Conciliation as a tool for resolving disputes peacefully in Nigeria cannot be over-emphasized. In modern times such as this, it remains a useful mechanism in dispute resolution. It is expeditious, cost effective, face saving, maintains relationships often destroyed in adversarial proceedings and focuses the parties on their real interests.  Nigerian courts have come to a realization of the role of ADR quite aside from imposed decisions in an effective justice delivery system. The Nigerian government has tried to promote mediation. The lawyers have contributed to the promotion of ADR and the multi-tiered dispute resolution clause with mediation as a prior step to arbitration or litigation is becoming increasingly popular in contracts. The Nigerian legislative framework is being revamped to ensure that the system adequately responds to modern challenges in the field of mediation and conciliation. There has also been an appreciation of the need for training in mediation to meet modern challenge. High priority is being accorded to attaining the highest standard of practical training in mediation and developing the requisite skills. Indeed there is an appreciable number of CEDR UK accredited mediators in Nigeria[39]. The quest to keep with up modern training needs and skills acquisition is being driven by lawyers.

The users however are yet to fully embrace mediation as an alternative to litigation. There is scope for further enlightenment to ensure that a greater percentage of disputants are exposed to the benefits of mediation and the goal of reducing the burden on the litigation system is realized.

[1]  A director in the Centre for Dispute Resolution, London, United Kingdom, in his article: ‘The Use of      Commercial Mediation in Europe

[2] (1998) 4 NWLR Pt 90, 554 at 586

[3] Article 1(1) of the Conciliation Rules in the third schedule to the Act

[4] See J. Olakunle Orojo and M. Ayodele Ajomo Law and Practice of Arbitration and Conciliation in Nigeria       (1999) pg 336 Mbeyi & Associates

[5] A.O Rhodes-Vivour FCIARB.Chartered Arbitrator, CEDR (UK) Accredited Mediator in her article on Mediation (A “Face Saving Device”) – The Nigerian Perspective

[6] See also section 28 of the High Court Law of Rivers State Cap 62 Laws of Rivers State 1999, Laws of Oyo State Cap 46 1978, and Laws of Ogun State Cap 44 1978. The earlier laws contained similar provisions e.g. High Court Law of Northern Nigeria 1963 and that of the Western Region of Nigeria 1959.

[7] See also section 28 of the High Court Law of Rivers State Cap 62 Laws of Rivers State 1999, Laws of Oyo State Cap 46 1978, and Laws of Ogun State Cap 44 1978. The earlier laws contained similar provisions e.g. High Court Law of Northern Nigeria 1963 and that of the Western Region of Nigeria 1959.

[8] Order 25 rule 1. Other states followed suit e.g. Kwara State High Court (Civil Procedure) Rules 2005 Order33(2)(2), Rivers State High Court (Civil Procedure) Rules 2006 Order 25.

[9] Lagos State Civil Procedure Rules 2004

[10] A.O Rhodes-Vivour, op.cit  p.4

[11] Cap.A18 Laws of the Federation of Nigeria.2004

[12] General Assembly Resolution 40/72 (1985)

[13] See United Nations General Assembly Resolution 35 / 52 (1980)

[14] See for example Electric Power Sector Reform Act 2005

[15] Section 73 Nigerian Communications Commission Act 2003

[16] Section 76(2) Nigerian Communications Commission Act 2003

[17] Blacks Law Dictionary 5th ed. p. 262.

[18] Longman’s Dictionary of English Language 2nd ed. p. 331.

[19] Chapter 19 Laws of the Federation of Nigeria (LFN) 1990.

[20] Chuka Agbu, Babalakin & Co on Conciliation in Nigeria p.2

[21] S.3 of the Trade Disputes Act Cap 432 LFN 1990.

[22] Orojo, C.O. and M.A. Ajomo, Law and Practice of Arbitration and Conciliation in Nigeria. Lagos:

Mbeyi and Associates.

[23] Chuka Agbu op.cit  p.3

[24] Allen Redfem and Martin Hunter (1991) Law and Practice of International Commercial Arbitration,

2nd Edition.

[25] Ibid. 26

[26] ADR principles and Practice 1993 at 108. 12. Article 1(1) of the Conciliation Rules.

[27] S.38 Arbitration and Conciliation Act Article 2(1) Conciliation Rules.

[28] Article 2(4) Conciliation Rules.

[29] Article 7 of the Conciliation Rules

[30] Article 7(2) of the Conciliation Rules.

[31] Article 7(4) of the Conciliation Rules.

[32] Article 9 of the Conciliation Rules.

[33] Article 11 of the Conciliation Rules .

[34] Article 13 of the Conciliation Rules.

[35] S.42(2) of the Arbitration and Conciliation Rules.

[36] Article 14 of the Conciliation Rules

[37] 1990-1993) Vol 4 NSC 123

[38] (1994) 5 NWLR (Pt 347) 649 at 654.

[39] A.O Rhodes-Vivour, op.cit  p.8