INTRODUCTION
Mediation has always been in existence in Nigeria’s traditional societies with Village elders and family heads resolving disputes and decisions reached were binding on the disputing parties prior to the introduction of the Court system during the Colonial era.
The Honourable Justice, Oguntade JCA (as he then was) in the case of Okpuruwu v. Okpokam[1] observed that in the pre-colonial times and before the advent of the regular courts, 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. This practice has over the years become strongly embedded in the system that they survive today as custom.
Mediation which is recognised as one of the mechanisms of Alternative Dispute Resolution is the modernised version of our traditional practices. Its growth and awareness in Nigeria has given rise to consider the laws in Nigeria supporting its practices thus this write up seeks to consider the laws in Nigeria supporting Mediation.
- THE CONCEPT OF MEDIATION
The Concept of Mediation can be said to have been formally introduced in Nigeria as an Alternative Dispute Resolution (ADR) mechanism with the establishment of the first Court connected ADR Centre in Africa, the Lagos Multidoor Courthouse in 2002. The Lagos Multidoor Courthouse was however statutorily established in 2007.
Mediation being one of the Alternative Dispute Resolution Mechanisms has been defined as a voluntary, non-binding and private process of dispute resolution in which a trained neutral third party usually called the Mediator helps the parties to reach an amicable settlement usually in form of an agreement which when reduced into writing and signed by the parties to the dispute becomes binding.
The Lagos State Multi-Door Court Law 2007 defines Mediation as the process for resolving disputes with the aid of a neutral who facilitates dialogue between disputing parties and assists them privately and collectively to identify the issues in dispute, reach settlement of the disputes and mutually accept the settlement[2].
Mediation is also defined under the Lagos State Multi-Door Court Practice Direction on Mediation as a process in which a neutral third party called a Mediator facilitates Communications between parties to assist them in reaching a mutually acceptable resolution of their dispute.
The neutral is an impartial and unbiased third party who does not make binding decisions for the parties but merely assists them in reaching a negotiated settlement. The process of Mediation is usually informal however the Laws supporting the practice of Mediation in Nigeria are discussed below.
- LAWS SUPPORTING MEDIATION IN NIGERIA
With the increase in the awareness and use of Mediation as an Alternative to Litigation and as an initial step before the use of Arbitration it becomes pertinent to consider the laws that support the enforcement of Mediation in Nigeria and Mediation Laws that exist in various states at the moment.
The use of Mediation as a form of Alternative Dispute Resolution is becoming well known and is increasingly becoming an option for many individuals and organisations in the resolution of civil, Commercial and family disputes in Nigeria. However, one of the challenges that has been associated with the adoption of Mediation in Nigeria is lack of Mediation Laws. Unlike Arbitration there is no single unifying law for Mediation in Nigeria with very few laws that provide for Mediation.
Nigeria’s most significant Law on Alternative Dispute Resolution that applies to the whole country is the Arbitration and Conciliation Act[3] which makes provisions for Arbitration and Conciliation but makes no express provisions for Mediation.
Although there is no single unifying Law governing Mediation, states in Nigeria such as Lagos State, Akwa Ibom State, Rivers State, Enugu State, Kano State, Delta State, Ogun State, Cross River State, Edo State, Abuja etc have enacted Laws on Mediation. For instance, in Lagos State there exists domestic sources of Mediation Laws such as; The Lagos State Multi-Door Court Law 2007, The Lagos State Multi-Door Court Practice Direction on Mediation, The Citizen Mediation Centre Law 2007 and The Lagos Court of Arbitration’s (LCA) Mediation Guidelines 2011. In Kano State there is the Kano State Multi-Door Courthouse Mediation and Arbitration Rules 2008. There are also specific provisions in the High Court Laws of some states that encourage Mediation.
Mediation Rules are also incorporated in practice Directions of Multi-door Courthouses. The Procedural Rules of some state courts also contain sparse provisions on Mediation, which generally encourage referrals of disputes before these courts to Mediation among other ADR mechanisms.
Having established the above facts, some of the laws supporting Mediation are;
- The Constitution of the Federal Republic of Nigeria:
The Constitution of the Federal Republic of Nigeria 1999 (as amended) is the grundnorm and the fundamental basis of the legal system of Nigeria.
Mediation is recognised under the Nigerian Constitution by virtue of Section 19(d) of the CFRN 1999 (as amended) which provides for the settlement of international disputes by Arbitration, Mediation, Conciliation, Negotiation and Adjudication. It states thus;
“The Foreign policy objectives shall be respect for international law and treaty obligations as well as the seeking of settlement of international disputes by negotiation, Mediation, Conciliation, Arbitration and Adjudication”
The Constitutional backing is a recognition of the key roles ADR mechanisms play in the resolution of disputes hence a substitution to the judicial powers conferred on Courts by the Constitution[4].
- The Lagos State Multi-Door Court Law:
The Lagos State Multi-Door Court Law was promulgated in 2007 and revised in 2015 to create a legal framework for the operations of the Lagos Multi-Door Courthouse (LMDC) and to create the proper environment for the fulfilment of its overriding objectives[5].
The Lagos Multi-Door Courthouse Law 2007 created the LMDC to be an independent, non-profit body Corporate with perpetual succession and a common seal, a Court connected Alternative Dispute Resolution Centre with its offices located within the High Court of Lagos State and any suitable locations.
The powers and functions of the LMDC under Section 3(1) of the Lagos State Multi-Door Court Law are to apply Mediation, Arbitration, Neutral evaluation and any other ADR mechanisms in the resolution of such disputes as may from time to time be referred to the LMDC, from the High Court of Justice, Lagos State, Courts of other jurisdictions outside Lagos State, Federal Courts, Private Persons, Corporations, public institutions and dispute resolution organizations.
- The Lagos State Multi-Door Court Practice Direction on Mediation:
Following the promulgation of the Lagos State Multidoor Courthouse (LMDC) Law in May 2007 it became necessary for the Lagos Multi-Door Courthouse to have its own Practice Direction for Mediation Procedures.
The Lagos State Multi-Door Court Practice Direction on Mediation was enacted pursuant to Section 30 of the Lagos Multi-Door Courthouse Law to make provisions for Mediation Procedures for the Administration of Mediation matters at the Lagos Multi-Door Courthouse.
By virtue of the provisions of Article 1, whenever by mutual agreement or contract, the parties have provided for or agreed to mediate existing or future Disputes under the auspices of the Lagos Multi-Door Courthouse, they shall be deemed to have made this Practice Direction a part of their agreement.
This Practice Direction shall apply to matters referred to the LMDC for Mediation from High Courts of Justice of Lagos State and other Jurisdictions outside Lagos State, Federal Courts, Private Persons, Corporations, Public Institutions and Dispute Resolution Organisations.
The procedures for Mediation is provided for under Article 14 of the Lagos State Multi-Door Court Practice Direction on Mediation.
- The Citizen Mediation Centre Law:
The Lagos State Citizens Mediation Centre Law 2007 consolidated and institutionalised the development of the Citizen Mediation Centre and provides legal framework for its operations. The law seeks to provide mediation on disputes relating to Landlord and Tenant matters; Employer and Employee disputes; Family matters (including marital disputes, child custody, etc.), Workmen Compensation matters; Property Inheritance and Land matters, Monetary claims, Commercial disputes, and other civil related disputes.
The Citizens Mediation Centre (CMC) is a department in the Lagos State Ministry of Justice, established in 1999 in response to the pressure and demands for an Alternative Dispute Resolution scheme and also as part of the Lagos State Government policy of providing an enlargement of access to justice and its institutions.
CMC is the first agency established by any government in Nigeria to provide comprehensive legal assistance and mediation services for indigent members of the public as an Alternative Dispute resolution body distinct from the court system and Arbitration.
The Centre serves as an Alternative Dispute Resolution Centre that provides a non-adversarial forum for the mediation and settlement of a wide range of disputes between parties who, on invitation, voluntarily present themselves for mediation at the Centre, as well as a non-adversarial dispute resolution Centre through the use of Mediation process dispensing justice fairly, speedily and without discrimination, fear or favour between the disputing residents of Lagos State, irrespective of tribe, race and religion[6].
- The Lagos Court of Arbitration’s (LCA) Mediation Guidelines:
The guidelines govern Mediation at the Lagos Court of Arbitration. In recognition of the need to have a set of guidelines to govern Mediation at the Lagos Court of Arbitration, these guidelines were passed on the 15th day of March 2011 to assist in the effective resolution of disputes by Mediation and for the proper and expeditious conduct of Mediation proceedings and other connected purposes[7].
By virtue of Article 1, in order to preserve the flexibility of the Mediation process, the LCA Mediation Guidelines shall not be unduly prescriptive. They should be construed and interpreted in a liberal manner to produce a just, efficient, expeditious and cost effective process of resolving disputes by Mediation between parties.
Article 2 makes provisions for the scope of Application of the guidelines. The guidelines are available for use by any party seeking to resolve their dispute through the use of Mediation.
- The Nigerian Communications Act 2003:
The Act provides that the Nigerian Communications 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[8].
The Act provides that the Commission, in carrying out its functions under subsection (1) of Section 76 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[9].
By Virtue of Section 4(1)(p) of the Act, the Commission shall have the function of examining and resolving complaints and objections filed by and disputes between licensed operators, subscribers or any other person involved in the communications industry, using such dispute-resolution methods as the Commission may determine from time to time including mediation and arbitration.
The Commission has formulated rules for the mediation of industry specific disputes. The Nigeria Communications Commission Dispute Resolution Guidelines was enacted September 2004 pursuant to Section 4(1)(p) and 75(2) of the Nigerian Communications Act 2003. Chapter 3 of the guidelines provides for Nigeria Communications Commission Mediation Procedure Rules which stipulates that:
“Parties may by mutual agreement either with respect to existing or future disputes agree to mediation of their disputes under the auspices of the Nigerian Communications Commission (hereinafter referred to as the “Commission”). All such agreements for mediation shall be deemed to be subject to the application of these rules or any variation of same as may be in effect as at the date of the submission”.
- The Rules of Professional Conduct for Legal Practitioners:
The rule mandates Lawyers in Nigeria to inform clients about the option of Alternative Dispute Resolution before or even during Litigation. Rule 15(3)(d) of the Rules of Professional Conduct for Legal Practitioners 2007 states that:
“a lawyer should not fail or neglect to inform his client of the option of Alternative Dispute Resolution mechanisms before resorting to or continuing litigation on behalf of his client”.
These Alternative Dispute Resolution Mechanisms includes; Negotiation, Mediation, Conciliation and Arbitration.
- High Court of Lagos State (Civil Procedure) Rules:
Mediation is recognised under the High Court of Lagos State (Civil Procedure) Rules 2019. Order 28 makes provisions for Alternative Dispute Resolution Proceedings.
Under Order 2 Rule 1(c)(i) one of the overriding objectives of the Rule is to mandate parties to use an Alternative Dispute Resolution Mechanism where the court considers it appropriate.
Order 2 Rule 1(c)(v) provides for the compliance with the requirements of the Pre-Action protocol to wit attempts has to be made at the amicable resolution of disputes through Mediation, Conciliation, Arbitration or other Dispute Resolution options.
- High Court of the Federal Capital Territory Abuja (Civil Procedure) Rules:
The High Court of the Federal Capital Territory Abuja (Civil Procedure) Rules 2018 supports Mediation under Order 19 Rule 1 which provides thus:
“It shall be the duty of a court or a judge to encourage settlement of matters either by: Arbitration, Conciliation, Mediation or any other method of dispute resolution”.
Order 2 Rule 7 states that; all originating processes shall upon acceptance for filing by the registry be screened for suitability for ADR, and where it is considered appropriate, the chief judge may refer the case to the Abuja Multi-Door Courthouse or other appropriate ADR institutions or practitioners in accordance with the practice directions that shall from time to time be issued by the chief judge of Abuja.
Order 26 encourages settlement out of Court using any of the ADR mechanisms. It stipulates that when a matter comes before the court for the first time, the judge shall in circumstances where it is appropriate, grant to the parties, time, not more than 30 days within which parties may explore possibilities for settlement of the disputes.
- The Enugu State Multi-Door Courthouse Law:
By virtue of Section 5 of the Enugu State Multi-Door Courthouse Law 2018, the functions and powers of the Enugu State Multi-Door Courthouse (ESMDC) shall be to apply Mediation, Arbitration, Neutral evaluation and any other ADR mechanisms in the resolution of such disputes as may be referred to the Enugu State Multi-Door Courthouse, from the High Court, Magistrate Court and Courts of other jurisdiction outside Enugu State, Federal Courts, private Persons, Corporations, Public Institutions and Dispute Resolution Organizations.
- The National Industrial Court of Nigeria (Civil Procedure) Rules:
The National Industrial Court of Nigeria (Civil Procedure) Rules 2017 makes provisions for Mediation under Order 24 of the Rules. Order 24, Rules 1 provides that;
“The President of the Court or a Judge of the Court may refer for amicable settlement through conciliation or mediation any matter filed in any of the Registries of the Court to the Alternative Dispute Resolution Centre (hereinafter referred to as the Centre) established within the Court premises pursuant to Section 254C (3) of the 1999 Constitution (as amended by the Third Alteration Act, 2010) and Article 4(5)(a)–(e) of the Instrument of the Alternative Dispute Resolution Centre.”
In accordance with the provisions of Order 24, Rule 2, upon receipt of the referral, the Registrar of the Centre shall set the matter down for mediation or conciliation in accordance with the ADR Rules.
- Environmental Impact Assessment Act:
Sections 31 to 36 of the Environmental Impact Assessment (EIA) Act 2004 contains provisions which recognises the role which mediation plays in the settlement of disputes associated with development projects. The Sections examine the issue of mediation in the EIA process. “Mediation” in this context refers to an environmental assessment conducted with the assistance of the mediator appointed under the Environmental Impact Assessment Act.
By the provisions of section 31, where a project is referred to mediation, the Council shall, in consultation with the Agency not only appoint an experienced mediator but also fix the terms of reference of the mediation. Therefore where a project is referred to mediation, the Council shall, in consultation with the Agency appoint as mediator any person who, in the opinion of the Council, possess required knowledge or experience and fix the terms of reference of the mediation.
- CONCLUSION
Mediation in Nigeria remains a useful mechanism in dispute resolution although it is an informal process without a unifying law that applies to the whole country. In an attempt to ensure a unified Mediation Law that applies to the whole country, the Nigerian Legislative framework is being reviewed to ensure that the system adequately responds to modern challenges in the field of Mediation.
With the proposed amendment to the Arbitration and Conciliation Act before the National Assembly, it is expected that Mediation will have a Federal Legislative backing as well as a unifying Law just like Arbitration.
REFERENCES:
- The Constitution of the Federal Republic of Nigeria 1999 (as amended)
- The Lagos State Multi-Door Court Law 2007
- The Citizen Mediation Centre Law 2007
- LCA Mediation Guidelines 2011
- The Rules of Professional Conduct for Legal Practitioners 2007
- The Lagos State Multi-Door Court Practice Direction on Mediation
- The Growth of Mediation in Nigeria by Morenike Obi Farinde, https://www.mediate.com/articles/GrowthofMediationinNigeria.cfm accessed on 15th November 2021
- The Nigerian Communications Act 2003
- The National Industrial Court of Nigeria (Civil Procedure) Rules 2017
- The Enugu State Multi-Door Courthouse Law 2018
- High Court of Lagos State (Civil Procedure) Rules 2019
- High Court of the Federal Capital Territory Abuja (Civil Procedure) Rules 2018
WRITTEN BY V.C.ATULOMAH ESQ
[1] (1998) 4 NWLR pt 90, 554 at 586
[2] See also the Enugu State Multi-Door Courthouse Law 2018
[3] Cap A18 LFN 2004
[4] Section 6 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)
[5] https://lagosmultidoor.org/about-us/ accessed on 17th November 2021
[6] About the Citizens Mediation Centre Uploaded by Adediran Dolapo https://www.scribd.com/document/424423419/About-the-Citizens-Mediation-Centre accessed on 17th November 2021
[7] LCA Mediation Guidelines 2011.
[8] Section 76(1) Nigerian Communications Commission Act 2003
[9] Section 76(2) Nigerian Communications Commission Act 2003