By Mofoluwawo Oluwapelumi Mojolaoluwa

More than ever before, alternative dispute resolution (ADR) is gaining more traction on the Nigerian dispute resolution scene. Stakeholders are daily realizing the usefulness of the various alternative dispute resolution (ADR) techniques available, a number of which produce desired results without the attendant hassles associated with the other and most popular option, litigation. Of these techniques, such as arbitration, conciliation, mediation, and negotiation inter alia, the peculiarity of mediation as an ADR technique shines forth. Chiefly, because it is party centric and is structured in a way that places the decision making in the hands of the parties. Moreover, it is cheaper than other methods, and relatively less time consuming.

Whether we like it or not, the courts cannot accommodate us all. This, not for any prejudicial reason but for inadequate personnel, administrative bottlenecks, overflowing dockets, the reasons abound. This is why ADR techniques will continue to gain more prominence in the coming years, especially if nothing is done to address the aforementioned challenges. To be factual, mediation has always been with us as a people. In the olden days, parties took their disputes to the community head or most senior member of the family for settlement. So this makes it very fit for our society, and very much adaptable to whatever circumstances. Modern day mediation is basically reintroducing a reinvented old wheel to the Nigerian society.

In the last twenty months, I have facilitated mediation in at least one hundred and thirteen (113) disputes ranging from matrimonial causes, tenancy disputes, land/property disputes, breach of simple contracts, breach of commercial contracts, loan recoveries, indebtedness, labour disputes, bank/customer relations, and inheritance disputes. This I did both as a sole mediator and a co-mediator, recording a seventy one percent (71%) success (resolution) rate. One thing is clear, if these disputes went to litigation, at least eighty to ninety percent of them will still be in their early stages being listed for mention, preliminary objections being made, or being set for pre-trial conference at best. Mediation saves time, no doubt. Whilst about forty-eight percent (48%) of these disputes were concluded in one sitting, the average lifespan of most were two to three (2-3) months and about two to six (2-6) adjournments. No civil court case in today’s Nigeria can boast of an equally abridged lifespan. Mediation saves time.

What I have observed is that it saves not only the time of the parties, but that of the mediator as well. Were I a sitting judge in a Nigerian court, I could not boast of having concluded 113 disputes in less than two (2) years. Not even if I sat on a special court with a streamlined jurisdiction just as mediation only applies to civil matters. Mediation saves time. It brings justice nearer and faster to the wronged, without necessarily giving the wrongdoer a feeling of being punished as in litigation. Make no mistakes in this regard, as to the power of mediation to effect redress. What it does, is that it brings both parties to table to reason together, preserving their relationship whilst making the wrongdoer come to terms with their fault, and develop a willingness to voluntarily redress same. Mediation does not have power to compel the doing or the ceasing from of certain actions, as litigation does, yet, it is doing what litigation cannot do. Mediation is reducing wait time to justice in Nigeria, and we are here for it. Of course it is not in all instances that a party leaves with the hoped for solution, but in most instances, they leave with the most practical and acceptable solution. This differs from litigation where parties need not compromise on any of their demands and most likely do get all they want at the end, if the court is so persuaded.

Mediation preserves the fabric of the society, a fabric well thinned out already by bitter strife and adversarial litigation. Sessions are not so much about what has happened and who has the most evidence to back things up. Rather, the most important question is, how can parties move on happily or cordially from this point? Mediation is mostly conducted orally, and documentary evidence is required only where oral evidence is contradicted, or in order to further contradict documentary evidence. Parties are not compelled to show up as the court would compel a litigant, but invitations are drafted in a way that encourages a respondent to voluntarily show up to answer the complaint filed against them. Yet, if they would not show up, there is little that can be done. For the mediation process only begins when two parties come to table. When things get heated, the mediator breaks parties into caucuses. Reasons with one party alone, and then with the other, before bringing them back together. Litigation is conducted at all times in the presence of both parties, however heated things may get, and that, as a matter of compulsion. What a way to foster strife!

Contrary to the inaccurate perception that ADR deprives litigation lawyers of their income, ADR especially mediation, is structured to make lawyers more income. It is cheaper, eschews filing fees, default filing fees, cost awards, and other expenses associated with litigation. Depending on how a lawyer structures his bill of charges, he gets to retain more of the total pay. What is more, appearance fees are applicable as is every other fee payable to a litigation lawyer. Yet, the lawyer gets the work done with less hassles and in a shorter period of time. Win, win. And in most mediation sessions, the lawyer is only there to provide little guidance and protect the client’s interest on issues that may require his technical know-how. If possible, he does not do the speaking for his client, as in litigation. I must however point out the fact that most lawyers who accompany clients to mediation, have a difficult time transitioning from a litigation point of view to a pro mediation stance. Often, we end up excusing the lawyer from the session, who keeps inciting his client against amicable compromise. In my introduction, I tell parties that while I am a lawyer, I am in that session going to act as a mediator. I do this to set the tone for peaceful negotiations, yet most lawyers still miss the memo.

Mediation involves negotiation, which is an ADR technique on its own. It usually progresses by way of trade-offs, finding the middle ground and then urging parties to meet each other halfway. Parties make these decisions on the spot after seeing reason to do so, and this is yet another time saving peculiarity of mediation. There is no need to adjourn in perpetuity. Whilst doing what litigation cannot do, mediation does not usurp the jurisdiction of the courts. Far from it. As a matter of fact, the courts sometimes refer ongoing or yet to be opened cases to mediation, parties only needing to go back to court for report of settlement. Mediation is highly recommended as a prerequisite for filing civil suits in Nigeria. Although this is the practice in some jurisdictions, it must transcend routine requirement alone, as parties and their lawyers must become pro mediation, even without being compelled to do so. This will go a long way in freeing up the court’s dockets and restoring the sanctity of litigation, which will now be the last and unavoidable resort. Frivolous and unnecessary actions will be kept out, more lawyers will be employed in the process. Peaceful relations will be preserved in the society, and justice will be done in good time.

Mofoluwawo Oluwapelumi Mojolaoluwa has worked as a mediator at a government owned mediation centre for 20 months. This piece is a product of her personal work experience. She can be reached at Houseoflivingstones@gmail.com