In this week’s edition of your Shippers’ Guide, Valentino Buoro is an Associate Convenor – SCMA, a maritime lawyer, guides you on the alternative way of dispute resolution other than the conventional litigation method which is believed to be more time and resources consuming. Enjoy the reading as you also learn.
How is mediation different from Alternative Dispute Resolution (ADR)?
In the conventional way of going to court, when you have an issue, you go to a lawyer, tell the lawyer the story and then the lawyer prepares your case and goes to court on your behalf. In the court of law, the lawyer speaks for you; the only opportunity you have to speak is when you have to come and give evidence and you are cross-examined but mediation is a different kettle of fish. When you go to mediation, you are the one who principally speaks, even if you go with a lawyer, he is supposed to be there as an adviser. He can speak for you depending on your choice but largely, mediation practitioners particularly the mediators who are the officers that conduct mediation would want to hear from you directly because as they say ‘he who wears the shoe knows where it pinches.’ Before now, there used to be the idea that anybody could go to mediation without the use of lawyer but over time, the world began to see that it was also dangerous. It is a professional thing whether you like it or not. It is flexible because you take your decision but then it is still a profession and nobody outside the professionals can understand the profession as the professionals do. So, it now became necessary that a new skill be adopted and the skill is mediation advocacy.
Ordinarily, if you have a matter, you go to a lawyer and if your lawyer is enlightened about alternate dispute resolution, he would decide that rather than taking the case to litigation, you should go for mediation. If he takes you to mediation, he is not supposed to act as a lawyer in the real sense of lawyering. In law, we say he will not act as a lawyer properly so called; he is a lawyer but acting in a different sphere.
In mediation, lawyers do not advocate or argue as in the court room for their clients because he is a mediation advocate and not a barrister or a solicitor in this case.
Can we now say that mediation is taking over the job of a conventional court?
It has not and will never take over the work of a conventional court. It has only come to supplement it.
What are the types of cases that can be taken to mediation?
Any case can be handled under mediation. Let us go back to the basics; mediation is just one platform in the ADR platforms. It is just like newspaper publication, broadcast, online publication; they are all in journalism, one cannot take over from the other. So, ADR can never take over from litigation but will supplement it. Mediation is used by people who want amicable resolutions, who do not want to waste time in court, who want to have a say in how they want their matters resolved. All over the world, people talk about self determination, in fact, people go to war over self determination. The problems we have in Nigeria today all relate to self determination. The clamour of the different parts of the country for separation all boils down to wanting to have control over the way they do their things.
So also, when it comes to the judicial world, people now have opportunities to have a say in how their matters are resolved. When you go to the conventional court, you are the reason for the sitting yet you do not speak. The lawyer does all the speaking and arguments for you. Sometimes, it may not reflect exactly what you want but then, there are some standards that you must follow.
In fact, your matter is being decided by abstract laws and decisions. For instance, you build your house with your money and somebody comes to you and says he wants to be your tenant, you allowed him in and by law, and you cannot enter that same apartment without the permission of the tenant again. Meanwhile, it is your own property. You cannot send the tenant packing without following some standard procedures. If you do so, the court will stand against you and that is your property.
So, what ADR is saying is that instead of going to court, if you go to mediation, the mediator will not ask if you have given him six months according to the law; the question will be ‘what is the issue’. The landlord may say he wants the tenant out of his house and the mediator will tell the tenant that the landlord wants him out, does he want to go. If he says no, the mediator will ask why he doesn’t want to go. Perhaps he doesn’t have the money or he quickly wants to complete his own building before moving out, the mediator will make them to have a meeting point. Here, it is the landlord and tenant that have the power of determination.
Are you saying that in mediation, there is no loser or winner?
Everybody is a winner if you come to agreement. There is no loser and there is no winner. What mediation tries to do is to find a middle course where you get some of what you want because in mediation, you cannot get all you want. Everybody gets some of what he wants and goes home happier but if you go to court, the determination of who gets what will be based on some abstract laws. The laws that you did not participate in enacting, laws that you d not understand because you are not a lawyer, laws that preceded your birthday but you must be guided by those laws. But mediation is when you want to control your life. You are the one that has been hurt, you want your hurt to be assuaged, you want justice; you want to outlive the pain. It is not somebody who will help you outlive it.
Who bears the cost of a litigation process?
Mediation is a private sector dispute resolution process while litigation is a public sector dispute resolution process. So, under the public sector dispute resolution process, government is responsible for the money to pay the judges and to maintain the court rooms but if you go to the private sector, it is you because it is for a profit. The people providing services are to be paid; the venue that is to be used will be paid for. So, both parties usually pay for the mediation process equally.
Assuming the complainant does not have money and he wants a case to be mediated upon, what happens?
Under the law setting up the Lagos Multi Door house, they can do a pro bono for you free if you don’t have money and that is truly if you don’t have money but is there any free lunch anywhere even in Free Town? How would you say you have a matter but you don’t have money? You must have to pay and it is very inexpensive. It is not as expensive as litigation. Both parties pay parts but if it the complainant who wants the other party to come and the other party does not have money, he may just decide to pay for everybody.
How long does mediation take compared to litigation?
There is no comparison, in litigation, when the lawyer files a case, he gives a time frame during which the other party will respond and when the other party responds, a time is set for the trial and when they come to trial, everybody comes with different applications and motions and this takes a lot of time which could extend to two or three years or thereabout but the average mediation may not take more than a month or thereabout. The reason why I said a month is to allow the complainant to file his papers at the mediation centre for the mediation centre to invite the other party and then for the other party to respond. When it comes to the proper sitting, when claims and response have been raised, mediation doesn’t take more than few hours or few days. Mediation could be held in one hour, it could be in two hours or a whole day. There are some mediations you start in the morning, you do not close until night and the settlement is reached. Some may take a break and come back another day. Generally, mediation should not take more than two to three days.
How popular is mediation in Nigeria today?
It is growing in popularity but how popular, you cannot compare, that is why I am talking to you, we are promoting. Mediation is an ongoing thing; we are only talking about professional mediation now. When you resolve matters for your friends, when you meet your pastors for resolutions, when you meet the Kabiyesis (Kings) for resolution of matters, they all form part of dispute resolution but when you are talking of formal resolution, where people will come before professionals who will help them to really break down the issues and resolve in a win-win situation, it doesn’t take more than some hours or days. At mediation, when we resolve, the claimant and the respondent resolve, none of them is going to appeal; can you appeal against yourself that the decision you took was wrong? You cannot do that but when it is litigation, after the court of first instance, if you are dissatisfied, you appeal, the matter goes to the appeal court. The appeal court may say the decision of first instance was right and throws away your appeal or it may say it was wrong and sustains your appeal. If you get judgement at the appeal court, the other party may not leave it lying low, it comes again to yet another level and it goes on like that.
How is mediation in the last one year?
A lot of development has taken place. In Lagos state where mediation is in the front line, the Lagos state government has been forward-looking in mediation matters. The establishment of Lagos Multi-Door Court House was one area the High Court of Lagos state rules which came into force last year is another where in Lagos today, if you file a case in the High Court, it will be subjected to screening and the screening is to determine whether the matter is suitable for mediation and if it is suitable for mediation, your opinion will not be sought, the matter will be forwarded to the Lagos Multi Door Court House for mediation but if it is the one that is not amenable or good for mediation, in the first instance, it will be sent to trial.
However, where the matter is suitable for mediation and the parties don’t agree, it then comes back to litigation. Nobody forces you to agree under the ADR process.