By: Olawumi Odeyinka- Apantaku, LLM, BL, LLB
Legal Officer (Research & Registry) NICArb
Introduction:
A family is “a group of closely related people, known by a common name and consisting of a man and his wife (wives) and children and probably other near relations”[1]. Under the Nigerian law, the concept of family is closely linked to marriage.
Disputes arise between members of the family due to disagreement over certain matters leading to disharmony, this is mostly called family disputes. Family disputes may be caused by disagreements over the rights, duties and liabilities of each member of the family. Over the years, disputes were majorly resolved through negotiation.
However, since human beings are dynamic, a need for revolution in the dispute resolution mechanisms became paramount as negotiation was no longer effective. This requirement for change led to the application of litigation in settling family disputes. Application of litigation allowed husbands and wives to seek settlement of family disputes in Court; especially by initiating divorce proceedings through a petition in court.
Family disputes which require more privacy, confidentiality and quick dispensation need an effective way in resolving disputes. Litigation has not been able to protect the secrecy that family disputes require. This is because the court room is open to all except in few cases where matters are heard in camera; although case files for such cases are still readily available to the public. It is against this backdrop, this article seeks to explore the need for Mediation to address family disputes.
Mediation and Family Dispute:
Mediation is a voluntary process that involves parties working together on solving their problem and using a neutral person (the mediator) to facilitate the discussions. The focus is on solving the problem rather than trying to convince one another of anything that has occurred in the past. Mediation is an ‘interest based’ process rather than forcing an entrenched position adopted by the parties to the dispute.
The three key elements for Mediation are the following:
- It is a voluntary and confidential process focused on interests rather than positions.
- The parties are assisted by a neutral third party to explore solutions.
- The parties focus on the future rather than past actions, to reach a future focused resolution that is acceptable to both of them[2].
Under family disputes, parties can agree to mediation in resolving their disputes and also mediation can be ordered by a Court when parties have already commenced court proceedings to try and help them resolve the matter in a more efficient and cost-effective way.
An agreement made at mediation can be binding on the parties to the mediation and particularly if there are court proceedings already before the court. Any agreement reached at mediation can then be made into court orders.
At this juncture, it should be noted that the concept of family mediation is different from that of general mediation. Family mediation is about helping spouses resolve their differences by a neutral third party known as a family mediator. The Family Mediators are trained to work with people whose relationships have broken down, and their scope of mediation covers disputes over contact arrangements, residence and parental Responsibility, child maintenance, property, finance[3]. Also, is the reconciliation of spouses, child custody, access to the child, visitation rights, medicals, division of property and assets between the husband and wife, feeding, clothing, upkeep, school fees.
It is to be noted, that there are things that cannot be mediated. These includes mental health, Wills, public policy, where a party has an ulterior motive such as using or wishing to use mediation to gather more information, domestic violence and divorce which are predominantly under the purview of the court.
Family mediation apart from being voluntary, gives parties a lot of privacy and shields their issues from the public unlike litigation that is public. It is also an avenue where parties are relaxed in recaching to an agreement base on the confidential approach in mediation. Family disputes that involve children are particularly challenging because it can mean children are torn between parents or sides of the family or are out of school. Mediation helps families to navigate a peaceful settlement that prioritizes the best interest of a child, which can be a challenge for traditional litigation or long-term court processes.
There are a number of professional bodies for mediators in Nigeria. The Nigerian Institute of Chartered Arbitrators, and other professional bodies are independent international centre for the resolution of disputes, particularly commercial disputes. Although NICArb has its main focus on the resolution of disputes using arbitration, it also has a mediation centre for resolution of disputes through mediation. The Mediators who are members of NICArb, undergo continual training to ensure that the standard practice of mediators consistently meets the expectations of citizens and global standards.
Conclusion:
The main advantage of resolving family dispute through mediation is that it gives the parties a quicker resolution and confidentiality to their family issues rather than proceeding through the court, which is increasingly taking many months if not years to resolve their case. Mediating on family issues will ameliorate some of the harsh effects of the current divorce system.
References:
[1] Nwogugu, E. I, ‘Family Law in Nigeria’ 3rd edn, HEBN Publishers Plc. (2014).
[2] Franca Parolin , ‘Mediation, Collaboration, Arbitration – To resolve family law disputes, what’s the difference?’ <https://www.mondaq.com/australia/family-law/909656/mediation-collaboration-arbitration-to-resolve-family-law-disputes > accessed on 23rd July, 2021.
