Ms. Abiola Abiodun is an international mediator with multiple accreditations from the Lagos Multi-door Court House and the Institute of Chartered Mediators and Conciliators. She is also a certified Mediation Advocate with the Standing Conference of Mediation Advocates (U.K) and a certified Online Dispute Resolution Practitioner with both the International Council for Online Dispute Resolution (ICODR), USA and ADRpoint Europe. In this interview with ADEBISI ONANUGA, she explains why deliberate efforts are being made to encourage litigants to embrace Alternative Dispute Resolution (ADR) mechanisms instead of litigation as a first option and the role of mediation in conflict resolution amongst other sundry issues.
What is mediation?
Simply stated mediation is assisted negotiation/ intervention by a neutral third party with the aim of reaching an amicable resolution. It is popularly referred to as win-win outcome.
What is Mediation advocacy and who is a mediation advocate?
It is the skilled technique of presenting and arguing a client’s position, needs and interests in a non-adversarial manner during a mediation by a certified individual who is called a Mediation Advocate/Advisor. It involves putting the client’s case as persuasively as possible, both to the other side and the mediator. In Nigeria, mediation advocates are trained by the Standing Conference of Mediation Advocates(SCMA).
On the other hand, a mediation advocate /advisor is an SCMA trained professional who presents and argues a client’s position during a mediation. A certified mediation advocate/ advisor assists parties to achieve a negotiated outcome to a dispute which is usually more satisfying, more effective, more workable, more flexible and more durable than an order imposed by a court or other tribunals. To further clarify, a lawyer is referred to as a Mediation Advocate, whilst other professionals who undergo the training are referred to as Mediation Advisors for example an accountant or an architect.
Why is mediation now being promoted more above courts for litigants?
It is because mediation has many benefits. I will list a few to save time. It significantly reduced costs, has significantly shorter time frame, it is non-adversarial and non judgmental. In addition, parties are always in control of the outcome, helps to preserve relationships. Mediation is totally confidential, it is carried out “without prejudice” and always leaves other options open. It also promotes use of creative solutions and aids constructive dialogue among other benefits. So with all these, the question should actually be why not mediation ?
Does mediation help in conflict resolution?
My answer to that is a resounding Yes.!!! According to P.T Coleman, “successful peace processes are less about agreements per se and more about how disagreements are allowed and managed.” I can confidently attest to the fact that over 80 percent of cases brought to the mediation table get settled, terms of agreements are signed by satisfied parties. During a session, the mediator asks questions that assist the parties in gaining clarity throughout the process.
How true is the saying that mediators don’t advise parties?
The ethics of the profession bars neutrals/ mediators from giving advice. Mediators who are lawyers may state the position of the law in situations where the parties seek clarification. Where a mediator does give legal information (cases, statutes, tax laws, procedure, support guideline calculations), they are advised to seek proper legal counsel from their personal lawyers or mediation advocates.
Do you see mediation replacing litigation in the future?
That future is now. Mediation can be likened to taking out an insurance policy thus maintaining an amicable situation between all parties. It explores creative avenues for parties. The use of mediation can be a transformative experience that improves the interaction and lives of the parties as opposed to litigation where there is a winner and a loser. Having said that, no Mediation will not be replacing Litigation, it is an appropriate option instead of litigation in cases that are amenable to Mediation. It is an indispensable process that will greatly assist parties and the courts in timeous resolution of conflict/dispute. I also see it as a tool that when properly assimilated in the adjudication of justice will eliminate the clog in the court dockets.
There are other types of ADR, Why is your focus on mediation ?
The simple truth is, I have experienced firsthand the benefits of mediation, for me it is a way of life, a culture a mindset. Mediation empowers parties and gives them the avenue to own their decisions. It has a non adversarial, future focused aspect which other forms don’t possess. For example, parties who were barely speaking, come in for mediation and settle their dispute amicably, they thereafter forge/continue a relationship which booms and is mutually beneficial(win-win). This is one of many scenarios. This scenario would not have been possible in litigation(win-lose) (a common Nigerian adage goes … we don’t go to court and remain friends). Arbitration is a less formal form of litigation and quite expensive.
Can you please shed some light on your local and international trainings?
I am a firm believer in lifelong learning, I always say when we stop learning….we start dying. I am ever open to learning opportunities; these trainings have greatly taught me global best practices in Mediation and Mediation Advocacy, while honing my skills. The trainings have equipped me with the nuts and bolts of mediation and Mediation Advocacy. Currently most of the cases, I handle as a Mediator are with the Lagos State Citizens Mediation Centre, we have the clients from diverse backgrounds. These span a wide range of disputes; such as paternity claims, employer/employee, landlord and tenant, family and monetary disputes to list a few. Each matter is uniquely different, interesting and enlightening. A lot of issues can be resolved when parties are willing to sit down to address the issues in contention rather than proceeding to litigation as the first option.
Which of the forms of ADR do you find fascinating and more applicable to the Nigerian environment?
A more suitable term is Appropriate Dispute Resolution . Of all the mechanisms that exist in our clime, I find mediation to be the most fascinating and best suited for the Nigerian environment, in view of the overcrowded judicial system, high cost of litigation, protracted court time to list a few. As stated earlier, mediation is future focused and non-adversarial.
Is mediation a binding process?
There is a common misconception surrounding the binding nature of Mediation, to clarify, mediation is a voluntary, non-binding process with a binding outcome. Once parties participate, follow through and amicably agree to certain terms, these terms are distilled and recorded in a document i.e the memorandum of understanding (MOU) or terms of settlement (TOS), which is a binding and enforceable agreement under the law. The exception to this is where the mediation is court referred, here the parties must attend the mediation as it is deemed an order of court.
Section 15(5) of the Lagos Multi-Door Courthouse (LMDC) 2007 provides that, any Settlement Agreement or Memorandum of Understanding duly signed by disputing parties shall upon being filed at the LMDC, be presented to an ADR judge or any other person as directed by the Chief Judge, for enforcement as the consent judgment of the High Court of Justice, Lagos State.
Section 16 of the LAGOS MULTI-DOOR COURTHOUSE (LMDC) 2007 specifies amongst others that it is the responsibility of the Judge of the High Court of Lagos to control and manage effectively proceedings in court and issue orders which would encourage the adoption of ADR methods (in this case Mediation ), including the mandatory referral of parties to explore settlement at the LMDC whenever one of the parties to an action is willing to do so.
Similarly, Section 32 of the TENANCY LAW 2012 provides that in proceedings under the Law, the court shall promote reconciliation, mediation and amicable settlement between parties. By virtue of this provision, the High Court or Magistrate Court may refer tenancy proceedings or any part of it to mediation at the Lagos State Citizens Mediation Centre (CMC) or to the Lagos Multi-Door Courthouse (LMDC).
Further to the above , settlements reached at Mediation are endorsed by the court as consent judgement. This means that the parties are bound by whatever they themselves agree, and such agreement has the full backing of the law.
What effect would you say the pandemic has had on the growth of mediation?
Globally the effects have been far reaching and devastating, it’s been over a year now and we are still attempting to flatten the curve of the Corona Virus. The evolution of Mediation in Nigeria is just beginning as parties are coming to the awareness of its many benefits. Culturally we are a litigious nation, the colonialist mentality and legal education system can be blamed for this. Having said this, there is an ongoing awareness of the benefits of Mediation and other ADR mechanisms. I would say it has had a positive and accelerating effect on mediation and the judicial system as we now have virtual proceedings in line with global best practices. It has also fast tracked the acceptance of online dispute resolution (ODR), which is basically dispute resolution with the aid of technology. I count myself lucky having participated in multiple online trainings as a ODR practitioner. One of these was taught by the god father of Mediation Colin Rule in conjunction with ODRAfrica during the covid lock down of 2020.
There is a need for more awareness, as the journey is just starting. On my social media handles @abbiemediates, I disseminate information on Mediation, ODR , Mediation Advocacy and the global best practices.
You have been a legal practitioner for over 17 years, what advice do you have for young lawyers who are interested in ADR?
They should attain proper certifications, be strategic and make sure to attend ADR /mediation related events, seminars and conferences. Consider affiliations and membership of Mediation institutions and associations. All these will hone their skills, while connecting with other experienced mediators. Mediation is wide, you can choose an area as your niche, by focusing on an area that interest you. Never stop learning, aim to be the most authentic version of yourself and a leader in your field. Understand that as a lawyer, mediator or mediation advocate you are a creative solutions provider. Chart your own path, you are capable of doing great things, maintain good character and don’t forget always add value.
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