The news that the Nigerian Senate had passed the bill for the enactment of the Arbitration and Mediation Act in the place of the extant Arbitration and Conciliation Act came to the ADR Community as one piece of cheering news. At last there will be a law which lawyers can now rely upon to promote and practice mediation either full time or as an adjunct of a litigation practice.
For some of those who, unlike Thomas Didymus of the biblical account, had believed without seeing, the assent to the Arbitration and Mediation Act will be a validation of a proactive visioning of the gem which the alternative dispute resolution process holds out for both litigants and counsel alike. I cannot wait to see the reactions of some colleagueswho in 2008 had pooh-poohed the process and had asked me to go do something more serious-minded when I preached the mediation gospel.
At that time, there were concerns raised about the recognition of mediation by Nigerian laws. I was asked to cite reported cases as authority for my conviction as a lawyer. Looking back now, I should well have referred such critics to the Arbitration and Conciliation Act, since Mediation is largely “in parimateria” with Conciliation.
I chuckle whenever I read mediation literature, which ascribe this process to several decades in other advanced climes. Indeed, the Chinese are reputed to have used mediation as a dispute resolution platform for thousands of years. Now that more and more jurisdictions are beginning to appreciate the advantage that mediation holds over aspects of the centuries-old litigation practice, salient concerns are being raised on how best to protect the new find from abuse.
Forrest S. Mostena University don and mediation trainer,writing on the institutionalization of mediation, asserts that as a young and evolving profession, change can occur at a fast rate and through the confluence of many sources. According to him, some institutionalization has started from within existing institutions such as courts and legislatures and have spread into the private sector.
I recall that some years ago, when a proposal to regulate ADR practice in Nigeria was mooted, it was stoutly resisted by some practitioners. The Arbitration and Mediation bill, which hopefully will sooner than later be presented to the President for assent, appears to now make any such further resistance a fait accompli. The law, when enacted, will create a national uniformity for mediation practice in Nigeria. Though practitioners may still be able to infuse some creativity into the details of actual mediation practice, such add¬¬¬-ons will in no way obliterate the fact that some federal regulation has crept into the field.
A keen observer will by now have observed the differences in the mediation procedures of State Multi-Door Courthouses, the Federal High Court ADR Centre and the Alternative Dispute Resolution Centre of the National Industrial Court (NICN). The rather legalistic commencement rules of the NICN ADR Centre calls for immediate review as it appears to defeat the intendment of quick access to justice for workers who cannot afford the services of trial lawyers nor have the luxury of going through the rigours of courtroom procedures.
There has been and will continue to be a divergence of opinion as to how best to institutionalise mediation without hurting its origins of diversity. Some professionals believe that the creativity and tacit knowledge of practitioners will be thrown overboard when there is codification of mediation and practice licence for its practitioners. A contrary school of thought however believes that licensure is all that mediation now needs to secure its deserved respect and validation as an integral component of world justice processes.
The concerns about mediation regulation is not local. As Mosen observed in the piece earlier referred to in this article,‘’permittinga ‘thousand flowers to bloom’ has been mediation ‘s history. The proliferation of different styles and backgrounds has been a blessing and a curse for consumers. The tradeoffs between regulations, creativity, accountability, and quality control have generated a vigorous dialogue that is currently raging through and around the mediation community.’’
In my opinion, one key consequence of allowing mediation to flow unregulated in developing jurisdiction such as ours is the danger its abuse will foist on formal dispute resolution. With everyone capable of hanging out a shingle as mediator, there is the likelihood of hapless persons being robbed of their rights under the guise of having agreed to certain terms in a phoney mediation facilitated by a quack. Such will open a floodgate of mediation challenge which will take parties back to the very courtrooms that the society is attempting to decongest.
Irrespective of whatever side of the debate you stand on mediation regulation or licensure, the point that must be made is that there are good grounds for both sides. Time will tell on which view carries the day. The outcome of the divergent views will be slowly determined from one jurisdiction to the other. In such matters only a preponderance of practices across the globe will determine consensus.