Distinguishing court-annexed ADR centres

These institutions are established in Nigeria under State or Federal laws. A classic example is the ADR Centre of the National Industrial Court of Nigeria

Valentino Buoro

No one knows what milestones alternative dispute resolution shall achieve, ten to fifteen years down the line. Having been involved in the last ten years, I have myself witnessed some developments which give hope for more to come in what is easily considered a revolution in the judicial sector . Societal acceptance of the concept of mediation is on the upswing; institutional procedures and offerings have improved and all seems set for further developments as the years roll by. You may perhaps have also noticed that in the definition of mediation, authors now make a distinction between mediation as previously known and mediation in the judicial sector.

READ ALSO: Mediation in the small claims court

The coming on stream of multi-door courthouses in several states of the federation is a development which I fear is being taken for granted. My concerns stem from the fact that the number of such institutions appear to presently outstrip available personnel. It will be an exercise in futility to posit that that these fears are unfounded because of what appears to be a suffice of mediators in the Lagos ADR market. While this may be so, there are other State Multi-Door Courthouses that are yet unable to take off because of the lack of requisite manpower.

Mediation is a skill which is enhanced through hands-on practice. Regrettably opportunities to acquire this much sought after experience is difficult to come by, given the flow of available jobs in active ADR institutions. To make matters worse, mediation has no practice journals that capture precedents. Unless a newbie offers his or her services on pro bono basis or has the rare opportunity of co-mediating with a more experienced colleague, chances are that he or she may not witness a live mediation several months after accreditation as mediator.

Mediation and judicial settlement efforts otherwise known as case management conference may be considered as preparatory proceedings in civil court cases. Unlike mediation which takes place in different settings outside of the conventional courtrooms, case management conferences are part of litigation and the rules of procedure apply. The High Court Civil Procedure Rules of respective states usually contain provisions stating a duty to try and settle either by way of judicial settlement efforts or mediation. Order 25 of the High Court of Lagos State (Civil Procedure) Rules 2012 provides for the preliminary process which a court shall follow to ensure a speedy disposal of matters filed for adjudication. Similar provisions are made in Orders 25 and 26 of the Edo State High Court (Civil Procedure) Rules 2018 which came into existence barely a month ago. The foregoing high court rules and similar provisions in other jurisdictions in the Nigerian federation constitute the bedrock of what is known as court-connected mediation.

Mediation in its original forms can be carried out outside of the supervision of the courts of law. What is imperative is that parties submit to the process under a mutually selected mediator who is neutral and does not give parties directions on what terms of resolution to adopt. Indeed ad hoc mediation conducted in the private chambers or offices of attorney-mediators and non-attorney mediators are common practices in advance jurisdictions. In such jurisdictions, practitioners have the pleasure of doing business with a significant clientele base. Court-connected mediation services on the other hand are mediations carried out under the directive and or shadow of the judiciary. These emerged as a result of the growing recognition that mediation provided a veritable channel of dispensing justice in a win-win outcome and thereby decongesting the courts.

In some jurisdictions, there is a preference for the use of attorney-mediators in matters referred from the courtrooms. This is based on the argument that once a matter has been formulated in readiness for full-blown litigation there is the likelihood that a non-initiate may not fully grasp the flow as much as attorney mediators would. Persuasive as this argument may appear, there is nothing to suggest that the lay professional who is well-versed in mediation process management cannot surpass the attorney –mediator in achieving a non-legal outcome which, indeed, is the core of mediation practice.

Notwithstanding the arguments, preference for any type of mediator may not be unconnected with the perception of mediation styles in the given jurisdiction. Regarding the status of mediator, the State of Illinois Circuit Court of Cook County, in its Part 20.01(Rules) regarding court-annexed mediation, states that “ A person approved by the Court to act as Mediator under this Rule shall, pursuant to Supreme Court Rule 99, have judicial immunity in the same manner and to the same extent as a Judge…’

Whichever category of mediator, there is a better sense of closure to mediated settlement undertaken in a court-connected mediation centre or multi-door courthouse. These institutions are generally established in Nigeria under State or Federal laws. A classic example of a Federal Centre is the ADR Centre of the National Industrial Court of Nigeria (NICN). Settlement agreements reached at court-connected mediation centres are easily enforced as consent judgments of the supervising court. Indeed, instances do arise when that consciousness of negotiating under the shadows of the court serves as incentive to settle.

READ ALSO: National Industrial Court resumes after 2 months annual vacation

 

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