May 21, 2019
Disputes are an inevitable occurrence in many commercial transactions. Different commercial and legal expectations, cultural approaches, political ramifications and geographical situations are all sources for disagreement and dispute between contracting parties. Genuine differences can concern the meaning of contract terms, the legal implications for contract, and the respective rights and obligations of the parties. Sometimes parties agree to perform a contract where performance is just not possible. Extraneous factors and human frailties, whether through mismanagement or over-expectation, will also interfere with contractual performance. In many cases, disputes do arise, due to the inability of the parties to tackle their problems and handle disagreements effectively. A major area of dispute is failure to pay moneys due under a contract: this may be because of an inability to pay or a wish not to pay and therefore one party is seeking an excuse or a justification to refuse to pay all or part of the contract price.
Where these disputes arise and they cannot be resolved by the parties themselves, they will need to be resolved in accordance with a legal process. This process should have the confidence of the parties or at least be in a forum that is acceptable to the parties. In these circumstances, parties to commercial contracts frequently look to either litigation in national, federal or state courts (public forum) or other private, independent and neutral system of resolving the dispute, such as arbitration or other alternative dispute resolution mechanism.
WHAT ARE THE FUNDAMENTAL FEATURES OF ARBITRATION?
- There are four clear fundamental features of arbitration.
- An alternative to the court system of adjudication;
- A private mechanism for dispute resolution;
- Arbitrators are selected and controlled by the parties;
- Final and binding determination of parties’ rights and obligations.
WHAT ARBITRATION IS NOT?
- It is not like a court procedure;
- It is not an expert determination;
- It is not a mediation;
- It is not any of the other alternative dispute resolution systems.
OTHER ALTERNATIVE DISPUTE RESOLUTION (ADR) MECHANISMS:
At present no universally accepted ADR rules exist. New ADR techniques are being developed alongside the more ‘traditional’ ones. It is therefore not possible to give an all-inclusive, lasting and unambiguous definition of ADR. However, for the purpose of this paper I will adopt the definition of Jean-Claude Goldsmith in his Book ADR IN BUSINESS, where he defined ADR as a:
‘Process aimed at resolution of a difference or a dispute through a voluntary settlement agreement reached with the assistance of (a) third person(s)’.
Accordingly, settlement negotiations between the parties in dispute (without the involvement of a third party) and adjudication (by a court or an arbitral tribunal) fall outside the scope of ADR as defined above.
Alternative dispute resolution or ‘ADR’, as a concept originated in the United States. Traditional court proceedings in the United States were felt to be too slow, costly, rigid and unpredictable, and therefore alternative methods to court proceedings emerged in the late 1970s. The aim was to provide a faster and more cost-efficient alternative to court proceedings.
The recent growth of ADR has been prompted primarily by the shortcomings of the adversarial system of litigation. In a 1984 address to the ABA, then -Supreme Court Chief Justice Warren Burger acknowledged that while trials are the only way to resolve some disputes, overall, our adversarial legal system is too costly, painful, destructive, and inefficient. The is the same situation in Nigeria today. Indeed, ADR processes are designed to reduce both cost and trauma to the parties, and to ease the overwhelming dockets most courts have faced in the past several decades.
Aside from the practical concerns and the crowded dockets, many ADR proponents envision a transformative approach to resolving disputes. In their view, traditional litigation focuses too much on winning and not enough on problem solving. Further, courts can impose only certain prescribed solutions, mostly involving money. So, when a court or Judge decides a dispute, the outcome may or may not resolve the underlying issues. In contrast, ADR processes like mediation focus on exploring the parties’ ‘interests’ and allow the parties themselves to craft solutions that advance those interests.
Thus, ADR fosters flexible, individually tailored results that achieve joint gain for the parties, rather than a win-lose outcome.
ADR advocates also argue that by providing a forum in which parties can tell their stories, ADR processes allow the parties to be ‘heard’ during the dispute resolution process. Further, these processes emphasise cooperation and openness rather than conflict and secrecy, allowing the parties more control over both the process and the outcome. As a result, they satisfy important psychological needs and achieve better-quality justice.
BASIC ADR PROCESSES:
Early discussions of ADR focused on the idea of a the ‘multi-door courthouse’, where disputing parties would choose from a number of options, including litigation, for resolving their differences. Each dispute would be evaluated early on to determine which dispute resolution method was most appropriate. Relevant factors might include the relationship between the parties, the relative power of the parties, whether the dispute impacted the public or only private parties, and the appropriateness of monetary solutions against other solutions.
ADR offers basically three types of ‘doors’ into the courthouse: facilitative, evaluative, and adjudicative. Within these categories, a process may be either binding or non-binding, depending on the parties’ agreement or the particular rule or contract that brought them to the table.
In a facilitative process, a Neutral Third Party facilitates communication between the parties to help them arrive at a solution to their problem. Neutral may not impose their own judgments on the parties or offer any substantive opinions, but instead work to bring the parties to consensus.
The main facilitative process offered in ADR practice is mediation. To some extent, mediation is an extension of the negotiation process that lawyers commonly employ to settle cases but with a designated third-party neutral to facilitate. In facilitative mediation, mediators help the parties identify areas of concern, understand each other’s perspective, and create mutually acceptable solutions.
In an evaluative process, a third-party Neutral evaluates the case and offers a candid assessment of its strengths and weaknesses. This evaluation may occur within the context of evaluative mediation, where it will theoretically help the parties arrive at an agreement. Or, in the context of litigation, a third-party neutral’s evaluation can help narrow the dispute and shape the discovery process, possibly encouraging settlement. In this context, the process is called early neutral evaluation or neutral fact finding.
Adjudicative processes result in evidence-based decisions made by third-party neutrals outside of court. While adjudicative ADR processes resemble in-court litigation, they can be quicker and cheaper than formal litigation. Also, to the extent they encourage settlement, they offer parties more control over the outcome than formal litigation.
In a Mini-trial, counsel for the parties present an abbreviated ‘’best case’’ to a panel consisting of representatives for each party, neutral third-parties, or both, to define the issues and establish a basis for settlement negotiations. The neutral third party may also issue an advisory opinion on the merits of the case.
In a moderated settlement conference, a neutral panel of three lawyers, usually legal experts on the particular issues involved, offers a non-binding opinion about the case. The opinion shapes the issues and, in theory, encourages the parties to reach a settlement.
Sometimes parties will elect a hybrid process that combines two or more of these options. For instance, in mediation-arbitration (med-arb), the parties agree to mediate their dispute initially then to arbitrate any unresolved issues, using the same neutral for both.
Alternative dispute resolution, which encompasses a range of processes, as described above, has become both widely available and extensively used. In fact, in many states in the US, most litigants must make a mandatory ADR stop along the road to the courtroom.
This brings me to the new innovation in High Court of Lagos State (Civil Procedure) Rules 2019 on compulsory ADR stop on the road to the courtroom. The Practice Direction No. 22019 on Pre-Action Protocol Bundle (P. A. P. B) provides as follows:
- ‘’Any person who wishes to make a claim (‘’Claimant’’) against another must comply with the following before commencing proceedings in court:
(a) Prepare a memorandum of claim setting out concise details of the claim(s), including the basis upon which the claims(s) is made, a summary of the facts, reliefs and remedies sought, and if monetary, how the amount is calculated, and shall be accompanied by exhibits in support of the claim(s) as well as a proposal for the settlement of the dispute through the use of Alternative Dispute Resolution (‘’ADR’’) mechanisms including but not limited to Negotiation, Mediation or Arbitration; and
(b) Deliver the memorandum of claim and accompanying documents to the party against whom the claim(s) is made.
- The party against whom a claim is made (’’Respondent’’) shall within seven (7) days of service of the memorandum of claim and its accompanying documents, serve the party making the claim its response to the memorandum of claim as well as its response to the Claimant’s proposal for settlement.
- Where the Respondent fails to file its Response to the Memorandum of Claim within seven (7) days as stipulated above, the Claimant shall send a reminder to the Respondent giving the Respondent an additional seven (7) days to respond, failing which, the Claimant should file an affidavit of the Respondent’s failure to participate in settlement talks.
- Upon receipt of the Respondent’s response to its memorandum of claim, the Claimant, being aware of the Respondent’s interests, should attempt to have the dispute settled out of Court.’’
FAILURE OF COMPLIANCE WITH THE PROTOCOL:
- When a party has;
(a) Not complied with the provisions of this protocol; or
(b) Not acted within a time limit set out in a relevant protocol; or
(c) Unreasonably refused to use a form of ADR,or failed to respond at all to an invitation to do so; or
(d) Has failed to comply with the order/directive of a Judge or the Chief Judge,
the following sanctions will apply:
- Originating process with supporting documents shall not be accepted for filing at the Registry.
(Note failure of Respondent to respond will lead to judgment against him and failure to comply with the order of the Judge will amount to contempt of court).
In case you find your way through the Registry of the Court consequences await you in Order 5 and 7 of the Rules as the action is treated as a nullity.
The Federal High Court has also adopted the ADR mechanism in the new Federal High Court (Alternative Dispute Resolution) Rules 2018.
The National Industrial Court of Nigeria has an ADR Centre. See Order 24 of the new National Industrial Court of Nigeria (Civil Procedure) Rules 2017.
Even at the level of an appeal, there is a forum created for parties to explore Alternative Dispute Resolution Mechanism. See Order 16 Court of Appeal Rules 2016.
Essentially what the above means is that there is an increasing and compelling need for lawyers to begin to develop skills in ADR. As a lawyer, you will probably be involved in ADR in a representative capacity at some point in your career. Therefore, if you are interested in becoming a mediator, an arbitrator, or a neutral evaluator, the question you may likely pose is what should you do? This brings me to the skills you may require to cultivate to become an ADR expert.
RELEVANT SKILLS REQUIRED OF AN ADR PRACTITIONER:
It is important to understand that becoming an ADR neutral for any ADR process requires experience and knowledge. Law students do not usually graduate from law school and immediately become ADR practitioners, even if they have taken ADR courses during university or law school.
According to Hamline University School of Law Professor Bobbi McAdoo, an ADR specialist and practicing mediator, ‘’it’s the classic case of needing the experience to get the job, but needing the job to get the experience.’’Further, she says, mediators and arbitrators are successful lawyers who have shown dispute resolution excellence to their peers. She recommends that to prepare for a career as an ADR practitioner, one must look for ways to develop relevant skills in your legal practice, including listening skills, the ability to ask appropriate questions, and creativity in solving problems.
Carolyn Chalmers, an experienced mediator and director of the University of Minnesota Office for Conflict Resolution, agrees that experience is key when she stated: ‘’If you want to mediate or arbitrate cases with the potential for litigation, you need practice experience. Lawyers choose the mediator, and they look in the legal field. She again said ‘’Even for disputes that are not in litigation or not focused on legal issues, it’s not easy to become a mediator unless you have significant life experience that will help you in the mediation process.’’
As a practicing lawyer, it is important you engage your clients and encourage them to take some of their cases to mediation or arbitration, and in the process get the necessary experience resolving them successfully. One of the best ways to prepare to be a mediator is to be a good advocate in the mediation process. I quote McAdoo again as she advises-‘’You have to show other lawyers that you can move a conversation along toward settlement, take all the parties’ interests into account, and generate good settlement’’.
While particular subject matter expertise is not an absolute requirement for ADR practitioners, experience in the relevant area of law always helps. Generally, the mediator or arbitrator needs to understand the legal issues sufficiently to structure the conversation, understand what litigation will look like if parties do not resolve the case, and remain credible with the parties.
Let me tell you that at your current stage of being a Law School Student, you can begin to lay the groundwork for a career in ADR. My daughter who is with you joined the Young Members Group of the London Court of International Arbitration (LCIA) may be in her third year in the university. She will be taking the Institute of Chartered Mediators and Conciliators (ICMC) Training Course in a few weeks. Membership of professional ADR Institutions offer opportunity to a huge academic resource and other tools necessary for becoming an expert in mediation or arbitration.
In Nigeria, we have the Chartered Institute of Arbitrators Nigeria Branch as well as the Nigerian Institute of Arbitrators. There is the Lagos Court of Arbitration (LCA). We also have the Institute of Chartered Mediators and Conciliators (ICMC). The Chartered Institute of Arbitrators, has the Young Members’ Group (YMG) which you can join.
Finally, consider volunteering. The Lagos Multi Door Court House offers free service to those willing to use its services and so many lawyers assist in resolving disputes that are brought to the centre. You can volunteer your services to the centre. You can also check the Lagos Citizen’s Mediation Centre. You gain a lot of experience through volunteer service and also network in the process of resolving disputes successfully.
SKILLS REQUIRED IN LITIGATION:
How did you become a seasoned Litigator among other areas of practice?
In law, an advocate is a person who is learned in the law or who has expertise in the law and who uses his knowledge of the law to plead or defend the cause of his client in a court of law. He is a person who, by his expertise in law, is formally admitted by the legal profession to represent a person in legal matters in court, including the rendering of legal advice and any other matter relating to law.
The advocate’s work instantly begins as soon as he receives instruction on a matter from his client. After a formal engagement by the client, the advocate must immediately study the facts and documents as presented by the client and decide on the following:
- What is the cause of action?
- Where is the right forum? That is, which court has jurisdiction over the matter; and
- The capacity to sue.
A wrong decision on any of the above may lead to your losing the case in court.
In my opinion, five major factors influence the outcome of a case in Court. They are:
- The facts;
- The law;
- The witnesses;
- The Judge; and
- The advocate.
SOUND KNOWLEDGE OF THE FACTS OF THE CASE: One important thing that I do on being instructed on a case is to study the facts of the case critically and have a full grasp of what the crucial facts are. A sound knowledge of the facts will help to decide on a strategy for dealing with the case and ultimately confer on the client the desired benefit. This decision is very critical because it determines the time you are going to spend on the case and how quickly you can have the case resolved on behalf of your client. R. D. Cann in his book; The Art of Advocacy, said:
‘’It is still true that the majority of cases are won or lost on their own facts despite the intervention of the finest advocacy.’’
While facts of a case are important throughout the judicial process, they are most important at the court of first instance. That is essentially, though not exclusively, a court of facts and the advocate must master the facts. He must have the facts at his fingers’ tips. He has no choice in the matter, since he has to build up his client’s case on the facts. Detailed knowledge of the facts will help the advocate in the examination of the witnesses, whether it is examination in-chief, cross-examination, or re-examination. Cann, while dealing with the wider issue of industry of the advocate, referred to what Lord Hewart said about the advocate’s approach to the facts of a case. Cann said:
‘’There is one final necessity: industry. The advocate, as Lord Hewart said, must ‘claw the facts.’ If he does not, all his virtues and brilliant improvisations will not help him. They must all be retained in his memory, so long as the case lasts: dates, names, times, exhibit numbers. Then as fast as they were mastered, they must be forgotten so that others in the next case he does can take their place. Memorizing facts of this kind is sheer drudgery. To do it properly the advocate must be prepared to forgo the pleasure of private life at the most inconvenient moments and for indefinite periods.’’
SOUND KNOWLEDGE OF THE LAW: You must know the law dealing with the subject matter or the cause of action. In fact, it is advisable before your pleadings are drafted that you take time to look at the law dealing with the subject matter as well as the case law authorities on the matter. A study of the case law authorities will open your eyes to the mistakes of counsel in the past on such matters and therefore help in avoiding the pitfalls. A mastery of the Rules of Court and the Evidence Act is very important for every lawyer involved in litigation work. They help in dealing with all the procedural issues that you must contend with in the course of litigation.
NEVER APPROACH THE COURT UNPREPARED: While all advocates are experts of the law, some do not take time and pains in preparing their cases before appearing in Court. That is the real problem. Some advocates take so much for granted only to face embarrassment in the Court. Every line, every sentence, and every statement in documents and pleadings are very important, and nothing, and I repeat, nothing must be taken for granted while preparing your case. Deep analysis of the facts, documents and issues have assisted me a great deal in winning my cases. I have discovered over the years that a majority of lawyers in this part of the world do not pay attention to details in the handling of their cases. If you want to achieve a high success rate in the conduct of your cases, you have to pay attention to small details. Further in order to be in regular touch with the law, an advocate must read his law books, particularly the law reports and the relevant statutes. He must prepare adequately for any case he has in court, for that is the only way he can exhibit brilliant advocacy in court, to the benefit and advantage of his client. He will have nothing to show in court if he is deficient in the law that he practices. He must therefore know the law. He has no choice at all. In fact, in my firm, I discourage my lawyers from telling me a case is for mention and therefore no need to prepare. You must prepare at all times for every court appearance. If you do this, you will be on top of your cases at all times.
Further, please take note that part of your preparation for a case is to bring the right witnesses to court. Witnesses bring the facts of the case to light. Your witnesses must be well primed before trial.
One final part of your preparation is you the advocate. Your impact on the case can be quite significant. The facts that a Judge hears are the result of the advocate’s preparation and investigation prior to trial. For example, the advocate controls what documents have been discovered and what witnesses have been interviewed prior to trial to support his case. Moreover, through effective presentation at trial, great trial advocates get more favourable judgments because they have been able to present a clear and compelling case. In addition, the Judge is also influenced by the attitude and demeanour the advocate projects.
KNOW THE JUDGE: The first human being that the advocate should have a good knowledge of is the Judge, and this includes all other members of the Bench in the particular jurisdiction where the lawyer is practicing. The advocate appears before the Judge everyday of his professional life and he should take the trouble and pains to study him. No two human beings behave exactly the same. Not even Siamese twins. There are areas where they behave differently. They have their own idiosyncrasies, instinctive tendencies, and peculiarities that they do not share with any other human being. The advocate must know the peculiar trait.
Other factors: Organisation, Adaptability, Good Interpersonal skills, Confidence and good negotiations skills are also essential factors.
Specific skills Senior Lawyers look out for before employing new wigs:
There are some specific skills that most Senior Lawyers always consider in accepting an application of a young lawyer for employment. Some of these skills include but not limited to:
Good Communication Skill – Lawyers are always known for their writing and verbal skills. Good communication skill does not stop at writing; it also involves the ability to listen attentively to the information being passed to you and the ability to convey instructions to clients.
Critical Thinking – An employer will always expect the young lawyer to be able to apply legal rules to facts before the lawyer.
Interpersonal Skills – most relationships that exist in a lawyer’s course of employment is usually between the lawyer and the client. It therefore becomes necessary for the lawyer to develop good rapport with people as well as the ability to being persuasive.
Other important skills include Ability to pay attention to details, Time management, Research and good analysis of issues etc.
The way your CV is organized is very important. A CV poorly put together with spelling errors disqualifies you immediately. You must be able to defend every information in your CV. Employers look for workers who are honest and who will be loyal and committed to the cause of the organization.
Your appearance is also very important. As a matter of policy, I do not welcome lawyers who are poorly dressed into my office. If you come for an interview poorly dressed without a neat shirt, a tie and a jacket you will not be interviewed. You are automatically disqualified. Honourable Justice Niki Tobi JSC (of Blessed Memory) in his book; The Nigerian Lawyer; captured it succinctly when he said:
‘’Beauty attracts the eye. It also pacifies the mind. Therefore a beautiful appearance of the advocate will certainly attract the Judge and also pacify his mind. He will be happy withthe advocate and that initial impression goes a long way….
I like to conclude by stating, nothing that has been said in my paper should be construed as implying that court litigation or arbitration are dead. ADR simply provides complementary ways in which to settle disputes in accordance with their respective intrinsic characters. This means that commercial disputes should be resolved through the application of procedures and measures that are most suitable to address the nature of each specific matter in issue to be determined when they arise.
At best, ADR is a means of avoiding litigation in situations that are more commercial or human than legal, thereby allowing the courts and arbitral tribunals to focus on the type of matters for which they were constituted, and so alleviating the work load of state court and consequent delays for litigants.
DISPUTE RESOLUTION-PAPER PRESENTED BY SYLVA OGWEMOH SAN AT THE NIGERIAN LAW SCHOOL ON 5TH APRIL 2019.