The Webinar moderated by Banke Olagbegi-Oloba focused on the Arbitration and Mediation Act of 2023. The panelists, including Mrs. Funmi Roberts FCArb, Mr. Chidy Martins MCArb, Mr. Victor E. Nweke MCArb, Nanchang Nangwang MCArb, Hon. Justice Itsueli FCArb, Mrs. Adeyinka Aroyewun FCIArb UK, Aisha Addo Abdullahi, were invited to provide insights into the act and the practice of mediation in Nigeria.
The conversation shifted towards the topic of dispute resolution and mediation in Nigeria. A question was raised about the shift from mediation to consolation in the Alternative Dispute Resolution (ADR) practice in Nigeria.
International Trade Law and Mediation Reform
Funmi discussed the reform in international trade law, focusing on the replacement of consolation provisions with mediation. She explained that the decision was influenced by the need for harmonization and the promotion of uniformity in dispute resolution processes. Funmi highlighted that Nigeria had adopted the model laws, with more than 70% of their laws on arbitration and conciliation based on these models.
She also discussed the benefits and implications of the new mediation law, particularly in practice. The team also discussed the principles of party autonomy and the importance of judicial mediation. A discussion took place about the commencement of mediation proceedings and the suspension of the limitation period. Aisha Ado emphasized the importance of regulation in mediation and the need for clarity on the interpretation of the act.
Mediation Process Autonomy and Flexibility
Aisha Ado highlighted the flexibility in the mediation process, including the ability of parties to determine the response timeframe and when the mediation begins. The team agreed that a new act had brought more autonomy and flexibility to the process. They underscored the importance of party agreement, transparency, and disclosure in conflict resolution.
Olagbegi-Oloba, Chidy, and Aisha Ado discussed the implications of the new act, focusing on the importance of party autonomy and good faith participation. They also addressed fees and expenses related to the mediation process, and the potential need for future considerations in situations where one party requires mediation more than the other. The team also discussed changes in mediator-party communication and the development of mediation in Nigeria.
Confidentiality in Mediation: Principle and Exceptions
The participants discussed the importance of confidentiality in mediation, emphasizing that it is a key principle and requirement in the process. They noted that confidentiality of the proceedings is up to the parties involved unless otherwise agreed upon. Adeyinka explained exceptions to confidentiality, such as when disclosure is required by law or when there is a threat to public safety or a party’s safety. The discussion highlighted the importance of understanding and respecting these exceptions while maintaining the overall principle of confidentiality.
A scenario involving a landlord-tenant dispute was presented, raising the question of whether the mediator should disclose information that could impact public safety. Adeyinka emphasized the importance of confidentiality and the obligation of mediators to disclose information that poses a threat to public safety.
Olagbegi-Oloba asked about the consequences of wrongful disclosure, to which Adeyinka responded that while penalties exist, the seriousness of confidentiality in mediation cannot be overstated. They suggested sensitizing relevant stakeholders about the importance of confidentiality in mediation.
Mediation Termination and Arbitration Discussion
Olagbegi-Oloba and Adeyinka discussed the Act’s provisions on the termination of mediation processes, with Adeyinka explaining that individual parties can unilaterally terminate a mediation proceeding. They also addressed Section 79, 80, and 81 of the Act, with Victor noting the ethical issues and cost-saving benefits of arbitration. The group also discussed the role of mediation in preserving party autonomy and preventing premature resort to judicial proceedings. Hon., Olagbegi-Oloba highlighted the lack of confidence in mediation due to its perceived lack of binding force.
Mediation and Enforceability in Nigeria
The discussion revolved around the use of mediation as a dispute resolution tool in Nigeria, particularly in regards to the enforceability of settlement agreements. The Hon. Member clarified that while mediation is gaining traction in the country, there are misconceptions about its binding nature.
He explained that settlement agreements resulting from mediation are binding and enforceable in court, akin to contracts, judgments, or consent awards. He emphasized the importance of advocacy by mediation bodies to increase awareness and confidence in the use of mediation. The Hon. Member also detailed the process of converting settlement agreements into enforceable court judgments and the requirements for acceptance of a settlement agreement by courts. He concluded by stating that courts can refuse to enforce settlement agreements under certain conditions, such as when they are void, unenforceable, or against public policy.
Section 85 Enforcement Discussion on Mediation Proceedings
Olagbegi-Oloba and Nanchang discussed the implications of Section 85 of the act on mediation proceedings in Nigeria. Nanchang, a lawyer and dispute resolution specialist emphasized that a settlement agreement is a legally binding contract that resolves a dispute. He explained that parties can file an application for enforcement of the settlement agreement either before a court, an arbitration tribunal, or a competent authority. He also highlighted that Section 85 allows a party to contest the enforcement of the settlement agreement under certain circumstances, such as incapacity of a party, lack of binding nature, modifications after agreement, unclear terms, performance of obligations, mediator’s impartiality, and issues of public policy. The discussion concluded with an overview of the enforcement process under Section 87, stressing the need for lawyers to understand the rules of procedure applicable in each state.
Singapore Convention on Mediation in Nigeria
The meeting revolved around the discussion of the Singapore Convention on Mediation and its implications in Nigeria. Nanchang elaborated on the conditions for the convention to be applicable in Nigeria, such as the dispute arising from a commercial relationship and the country being a party to the convention.
He also mentioned that Nigeria has ratified the convention, making it bound internationally. Nanchang further emphasized that the convention provides a legal framework for the enforcement of domestic and international settlement agreements resulting from mediation, which will facilitate international trade and promote mediation as an effective method of resolving commercial disputes in Nigeria. Towards the end of the meeting, there was a brief discussion on the resignation of mediators and arbitrators.
Mediation Fees: Concerns and Solutions
The meeting discussed the fees charged by mediators, with concerns raised by Confidence about the calculation method. Chidy explained that fees vary depending on factors such as the mediator’s experience, complexity of the matter, and timeframe. It was suggested that stating upfront that fees are based on the initial brief could help, with the possibility of renegotiation if the matter becomes more complex.
Conclusion
Aisha, Registrar, and Olagbegi-Oloba discussed their institute’s scale of charges, emphasizing that it should only be a reference when deciding on charges. Registrar suggested charging fees as a deposit to be discussed later with the parties involved. The need for sensitization and more volunteer mediation sessions to develop skills was also highlighted, as fees could be discouraging for those unfamiliar with the process. The discussion concluded with the importance and benefits of mediation in legal matters being emphasized.
1048 registered for the Webinar, Insights into Arbitration & Mediation Act 2023 Mediation Practice in Nigeria (Part II) and 437 actively participated.
