Sooner than later, every law firm worth its salt in Nigeria will have no choice but establish a Mediation Advocacy Desk to handle its alternative dispute resolution briefs.
Whether the new practice area is christened a mediation advocacy unit, an ADR practice Unit or whatever of the sort, what is clear and unambiguous is that lawyers assigned to such units will have to be trained to represent clients at mediation, conciliation, arbitration etc. My unbridled optimism is not without foundation. Just recently the Chief Justice of Nigeria, Hon Justice Walter Onnoghen directed the Nigerian Law School to post students on Chambers attachment to only law firms with Alternative Dispute Resolution facilities.
The CJN who spoke at the inauguration of the Bar and Bench House, a law firm in Abuja, stated that it had become imperative for law firms in the country to make provision for ADR mechanism as a way of promoting peace and harmony in the society. With this nudge coming from the pinnacle of judicial hierarchy in our jurisdiction, the sky now appears to be the limit for alternative dispute resolution integration in our justice delivery system. But just before we veer off the celebration mode, due credit must be given to retired Hon. Justice Mahmud Mohammed, Onnoghen’s predecessor, who ignited the fire of ADR when during his tenure he directed Chief Judges of State judiciaries to establish Multi-Door Courthouses to fast track dispute resolution.
The reality of legal practice is that not notwithstanding the positive push of judicial authorities in this regard, not every lawyer will practice alternative dispute resolution. Some persons are just not cut out for it. This is understandable. In legal practice, there are lawyers who have not donned their wigs and gowns since after the day of their call to bar. It is immaterial whether or not they topped their law school class in advocacy subjects. Soon after call to Bar, they opted for Solicitor practice where they would rather advice clients , draw up their legal documents and allow them to approach barristers for litigation, should issues arise. Others, who are otherwise so gifted, move from one courtroom to another defending or prosecuting matters in all of their practice years. The newest entrants will be those who will only practice in the amicable dispute resolution processes of mediation, conciliation etc.
As we celebrate the directive of the Chief Justice , we should not lose sight of the reasons why the legal community has not been enthusiastic about the alternative dispute resolution processes. The reasons are economic and professional self-preservation. It is a matter of debate whether the dynamics of ADR has not in any way watered down due regard for the rhubarbs of trial lawyers. What is certain is that the dispute resolution industry which hitherto has been the exclusive preserve of lawyers has been opened up to strangers to the profession. These developments combined with the curious misconception in some quarters that ADR is more of a charity business than an appropriately priced professional service should be a matter of concern to all who love justice and fair play.
If rising misgivings are anything to go by, it is imperative that the Bar and Bench must at this juncture step in to arrest the fears of the legal community about the perceived downward slide in their fee incomes through inappropriate pricing of ADR services. In one classic narrative, a colleague told me of his client’s refusal to pay an agreed fee for a mediation session because according to the client, the advocate was of little or no assistance in the course of resolving the case. The client insists that during the mediation session, the mediator’s focus was directed at him and that it was his concurrence to the offers of the opposing party in the matter that resolved the case. This is erroneous because the client has failed to put a value to the intense back office preparations for the session. What should be uppermost in the mind of an informed user, I suppose, is the solution mediation brings to the inherent challenges in a courtroom trial. Consumers pay for the benefit of a product rather than its features.
A truly successful mediation is based on the quality of the pre-mediation instructions and guide offered client by a mediation advocate (Lawyer). In this respect, the client enjoys the benefit of the advocate’s legal knowledge; his tutorial of what mediation is all about and the strategies of devising options during negotiations. Put differently, the advocate has in pre-mediation activities provided the services of a solicitor, the process knowledge of mediation as well as the skills of usually well paid professionals known in corporate and commercial circles as Negotiators. If the fusion of three professional skills for the guidance of a client is not worth paying a premium, one wonders what else is.
By way of proposal, it is time now the learned profession establishes a scale of charges for lawyers engaged in the provision of ADR services. This will serve as guide to lawyers and clients on what is reasonable within given circumstances. While the user public must be protected from exploitation from unscrupulous practitioners, the worth of the legal service and the integrity of the noble profession need not be dragged into ridicule by those who are unable to appreciate the new ethos.