It would be stating the obvious and indeed over-flogging the issue to state that Counsel in Nigeria have been nurtured in the adversarial mechanisms of dispute resolution viz, litigation and arbitration. It is therefore usually difficult for lawyers so trained, to readily shed their adversarial toga in favor of the non-contentious dispute resolution mechanisms. The truth, however, is that in recent times, the tide is gradually turning and Alternative Dispute Resolution mechanisms (ADR) have continued to gain giant strides and support across the broad spectrum of the Nigerian justice system, thus engendering a gradual culture change.
The most prominent of the various ADR Mechanisms is no doubt mediation and recently, one has begun to sight commercial contracts which embody the Multi-tier Dispute Resolution Clauses which provide for mediation as one of the steps to be undertaken by the parties in their bid to resolve any dispute or controversy that may arise between them. The essence of mediation in the Multi-tier dispute resolution process is to give disputants the opportunity to evolve a ‘win-win’ solution to their dispute and/or controversy, with the help of a facilitator called the Mediator.
Be that as it may, one of the greatest barriers to the advancement of mediation as one of the foremost ADR tools in Nigeria is the fact that Counsel find it difficult to see a role for themselves in the process because mediation is a party-focused process as it is the parties who are encouraged to fashion out the resolution of their disputes. However, there are a myriad of ways the well prepared and diligent Counsel can significantly impact on the success or otherwise of a mediation, thereby ensuring that his client gets the best out of the process.
The role of Counsel would be examined in the three main steps of the mediation process:
- Mediation day
Pre – Mediation
The most important thing is for Counsel to enhance his knowledge about the different types of ADR processes available and having advised his client to mediate the dispute, it is his responsibility to explain what mediation means to his client as well as the strengths and weaknesses of the process. This is particularly important in Nigeria where ADR is a new phenomenon and most clients would place significant reliance on their Counsel to guide them.
Counsel should also be prepared to assist his client in choosing and appointing the Mediator. This role is important even where it is an institutional mediation since the institution would usually provide a list of mediators from their Panel of Neutrals from which the mediator would be chosen. Counsel must exercise due care and diligence to ensure that a properly trained person is so appointed. Counsel must however bear in mind the fact that a Mediator does not have to have knowledge of the subject matter of the dispute, the most important criteria being the training the Mediator has undertaken and his track record.
A key issue Counsel must bear in mind is that Mediation is a party-focused process and the role of the Mediator is to facilitate a settlement between the parties. Thus, the parties must be well prepared to state their positions and negotiate in a manner that would enable them get the best out of the process. There is no person better able to fulfill this role than Counsel to the parties. Thus, apart from explaining the mediation process to his client, Counsel must meet with and go through all necessary documents with his client with a view to determining which ones would be relevant to the Mediation. This process enables Counsel to also have full grasp of his client’s case. Many-a-time, Counsel have come to mediation without being themselves properly prepared and without any knowledge of the some of the documents in their client’s possession. The diligent mediator would then find himself having to bring the attention of Counsel to these facts and documents that have been supplied to him before the mediation began. The disadvantage of this is that it would then be apparent to the client that his Counsel have not fully prepared for the mediation, a situation that Counsel must strive to avoid at all times.
The mediator may need to hold a Pre-mediation meeting with the parties and Counsel are expected to attend such a meeting. At this meeting, critical matters would be discussed and these include the representatives of the parties at the mediation if the dispute includes limited liability companies. The mediator would enlist the support of Counsel to ensure that the parties are represented at the mediation by persons with full authority to settle the dispute. Other matters to discuss include the type of documents the parties may wish to bring to the Mediation and how this should be presented. Parties would usually be required by the mediator to attach the relevant documents to a Statement of Case which would state their respective positions. The best person to prepare this document is no doubt the Counsel to the parties.
At the end of the Pre-mediation meeting, the parties would be expected to sign an Agreement to Mediate with the Mediator being one of the parties. The presence of Counsel at such a meeting would ensure that the parties clearly understand the contents, significance and implication of the various terms and conditions contained in this Agreement before appending their signature to same.
Apart from conducting a case assessment and analysis with clients, Counsel should, before the day fixed for the mediation, review and more importantly evaluate with the client, his BATNA (Best Alternative to Negotiated Agreement) and WATNA (Worst Alternative to Negotiated Agreement).
Apart from the above, Counsel should:
- Advice clients about their rights and other professionals they may need to bring on the day of the mediation e.g. accountant.
- Assist parties in filling requisite forms where the mediation is administered by a Mediation service provider e.g. the Lagos Multi-Door Courthouse.
- Identify potential or existing ethical quandaries and ensuring that these are resolved before the Mediation Day.
An experienced mediator would encourage parties to attend the mediation with their Counsel as this provides re-assurance and comfort for them during the process.
Experience has shown that clients prefer to have their Counsel present their Opening Statement at the Opening Phase of the Mediation which is held in plenary. This is the information-gathering stage and unfortunately, many Counsel see this as a forum for exhibiting their oratorical skill. This should not be so. Counsel should present their clients’ cases in clear, concise and issue-focused manner bearing in mind that the information given out is for the benefit of the parties who are the final determinants of the contents of the settlement.
Other ways by which Counsel can support the mediation process include the under-listed:
- If limited liability companies are parties to the mediation, ensure that they are represented by appropriate personnel who have been given authority to settle. At the very least, Counsel should ensure that the person who has the final authority to settle is at the other end of a phone;
- The mediator is in charge of the process and Counsel should support whatever process the mediator has designed to facilitate productive engagement between the parties and not do anything to undermine the authority of the mediator;
- Offer advice to clients as it is not the responsibility of the mediator to act as legal adviser to the parties;
- Participate in “ideas showers” and other methods which mediator may devise to break an impasse/ deadlock;
- Assist in conducting an audit of previous attempts made by the parties at settlement;
- Assist his client to evaluate any option/proposal put forward by the other party whilst resisting the temptation to assume the role of the principal decision-maker;
- Encourage a collaborative atmosphere and get clients to see things from the point of view of the other party, develop empathy for same, thereby encouraging movement from positional to collaborative interest-based bargaining. A mediator may in fact be made redundant if lawyers are ready to put on the settlement garb;
- Ensure productive use of caucus/private meeting, particularly carrying out any task the mediator may have set for his client whilst meeting with the other party in caucus;
- Assist mediator to calm parties down when emotion run high or if his client is resorting to bulling tactics, one of the invisible barriers to dispute resolution;
- Assist the mediator to facilitate constructive and robust settlement-focused communication between the parties.
Although the terms of settlement are agreed by the parties, Counsel should play an active role in drafting the Terms of Settlement particularly ensuring that it meets with the requirements of any applicable law and filing same in court or before an Arbitral Tribunal as Consent Judgment or Award as the case may be where there is pending litigation or arbitration. This of course brings to the fore the fact that resort may be had to mediation even where the parties are in court or before an arbitral tribunal.
Compared with other ADR Mechanisms, mediation is hard work but nothing beats the thrill and sense of achievement when parties settle their dispute in a win –win manner. Counsel would also have greater pride from participating in a process from which his client has grained much satisfaction as there is no greater source of recommendation than a satisfied client. However, this sense of achievement can only be merited if Counsel has participated in the process in an efficient and responsive manner.
Funmi Roberts, LL.M, FCIArb is the Principal, Funmi Roberts & Co and Member of Governing Board, Oyo State Multi-Door Courthouse. Member of ICC COMMISSION on Arbitration and ADR. She is also a member of the Steering Committee of CADRI