Legal Torchbearers: Lawyers get Training in Mediation Skills
In recent years, the concept of mediation as an Alternative Dispute Resolution (ADR) mechanism has continued to garner tremendous traction in many legal jurisdictions, including Nigeria, as stakeholders weigh the high cost, in terms of time, effort, resources and relationships, of the often adversarial business of litigation and other formal legal processes. But as it is with all novel ideas, mediation in particular, and ADR in general, have also met with a lack of enthusiasm, if not outright hostility, from certain quarters. Overall, however, the majority of stakeholders agree that ADR is the way of the future, and that the sooner legal practitioners – on both the Bar and the Bench – jumped on its bandwagon by learning the skill sets needed to function effectively and profitably (both as defenders of their clients’ interests and as impartial mediators), the better.
It is in light of this understanding that a group known as the Legal Torchbearers, in collaboration with the Lagos Multidoor Courthouse, organized a one-day seminar on mediation. Newswire Law and Events Magazine correspondents were at the iconic premises of the Lagos High Court at Igbosere, Lagos State.
Moderated by the former General-Secretary of the Lagos branch of the Nigerian Bar Association, Stephen Obajaja, the seminar was graced by a large number of young lawyers and a sizable contingent of senior practitioners – including Arthur Obi Okafor, SAN, a pillar of the Eastern Bar Forum (EBF) and a sponsor of the seminar, as well as the venerable Pa Tunji Gomez, the oldest practicing lawyer in the Lagos Bar, if not in all of Nigeria.
In the first session, the facilitator, Mrs. Adeyinka Aroyewun took the assembled lawyers through the workings of the Lagos Multidoor Courthouse, an agency of the Lagos State judiciary tasked with implementing its ADR mechanism, after which there was a lively question-and-answer session.
No less lively was the second session, titled ‘The Evolution of ADR as an Expeditious Medium for Effective Dispute Resolution: A 21st Century Paradigm Shift.’ The facilitator, Mrs. Sola Adegbonmire, an experienced mediator, began by tracing the evolution of ADR to Bible times, notably the role of the Jewish Patriarch and Lawgiver, Moses in resolving disputes among the Israelites in their sojourn through the wilderness, and his subsequent delegation of similar roles to trusted men in the 12 tribes, on the advice of his father-in-law. ADR was also a preferred method of resolving in traditional African societies, Mrs. Adegbonmire said, as litigation – as we know it today – was virtually unknown. The Lagos State Citizens Mediation Centre (CMC) among other outlets, she said, was a direct echo of that ancient Mosaic arrangement.
She went on to list the relative advantages of ADR, one of which had to do with the unpleasant reality of uneven billing prevalent in the profession, whereby one lawyer can bill a client as much as N2m and above, while another is forced to bill only N50,000 for the same quality and quantity of work – a phenomenon unheard of in many other professions. ADR, on the other hand, she said, presents numerous advantages for young lawyers – whether in the role of defenders of their clients’ interests or as mediators themselves – to earn fees proportionate to their work. These advantages, she disclosed, are backed by such enabling legislation as the Arbitration & Conciliation Act of 1998; the Lagos State Citizens’ Mediation Act of 2003; the Lagos State Arbitration Law of 2009; and the Lagos State Multidoor Court Law of 2007. The facilitator also listed other advantages of ADR to include the following:
- Greater acceptance of ADR among the populace will afford our already beleaguered judges more time to focus on the pending cases before them. The rising number of ADR-friendly judges in recent years (especially in the Lagos State jurisdiction, who see no competition between ADR and the formal court process) is a welcome case of enlightened self-interest;
- ADR offers all parties involved a measure of privacy. There is no washing of the proverbial ‘dirty linen’ in public, as is the case with many litigation cases;
- Rather than perpetuate the enmity that sometimes arises from bitter courtroom battles, ADR can actually facilitate reconciliation and emotional healing, even after the dissolution of a marital union or a business relationship;
- ADR gives even greater impetus to the judiciary’s reputation as ‘the last hope for the common man.’
In conclusion, Mrs. Adegbonmire urged young lawyers to explore areas – especially in emerging areas of the economy such as the country’s entertainment industry, markets like the Computer Village (a multibillion dollar industry), as well as online markets like Jumia, Konga, etc., where there is a potential for disputes and their resolution without the necessity of engaging in lengthy courtroom battles. The fees may be small, she conceded, but turnover of cases is likely to be high.
In the third and final session of the day, which was titled, ‘Introduction to Mediation Advocacy,’ the facilitator, Ms. Osarieme Ezekiel, a commercial lawyer and mediation advocate, began by reminding her audience that the 21st century lawyer cannot afford to focus on the law alone. The world of law, she added, was tilting towards ADR – in spite of widespread resistance due to lack of a fuller understanding of its modalities and advantages. Like the previous speaker, she stressed the need to acquire needed mediation skills. She reminded them of the very essence of advocacy (a term taken from the Greek word meaning, ‘a voice.’) In other words, the aim of mediation advocacy was to give voice to the concerns of the respective parties to a dispute. It is a platform where the lawyer uses his lawyering skills in a different way, i.e. to negotiate consensual outcomes.
Ms. Ezekiel also stressed the following points:
- All mediation must be parties-driven. In other words, the parties to a dispute must do the bulk of the talking. Mutual interest must be the watch-word, rather than what the law says.
- A lawyer is of greater value to his clients if he can offer them other resolution options.
- Mutual interests, rather than rights under the law, should be uppermost in a mediator’s mind. The adversarial approach – as taught in law school – is one of the reasons for delays and adjournments we see in litigation cases. Lawyers who hope to succeed in ADR will have to unlearn a lot of paradigms and pick up new ones along the way. Court cases, by their very nature, tend to create – or perpetuate– discord, and it is the immediate interest of some lawyers to stoke the fire.
- The A in ADR can also be taken to mean ‘Assisted;’ ADR is by no means a poor cousin to litigation, but a viable, win-win alternative.
Ms. Ezekiel also had the following tips for would-be lawyers and mediators in ADR cases:
- Sort out the logistics in terms of time and place. Don’t be rushed by your schedule (‘I have to be somewhere else by so-and-so time’). Also, dress formally, as if going to court. The informal nature of ADR does not mean it is unstructured, nor does it give license for a shambolic appearance or preparation.
- Listen patiently, to your client as well as to the other side. Talk through all the issues.
- Find out what your client can afford (in cases where loans and interests default are involved). Appraise your client’s case realistically.
- A mediator is NOT a judge per se. As a mediator, your role is to guide parties towards a settlement, not to impose penalties or sanctions.
- As a lawyer, restrain your client. Know their temperament and anticipate their responses. Always obey the ground rules as set by the mediator.
- Don’t cross-examine. Rather, be courteous and cooperative, especially with the mediator.
- When speaking, address the other side, not the mediator; you’re not trying to get the mediator on your side in order to ‘defeat’ the other side. Whatever the outcome, let it be the decision of both parties, not the mediator’s.
- Don’t breach confidentiality; ADR, by its very nature, is a confidential business.
As in the previous two sessions, there was a lively question-and-answer session as the seminar came to a close. The vote of thanks was given by Ariyo Dole, Esq.
The events of the day were rounded off with an evening cocktail party.
See photos below:
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