Thursday, 27 September
2018 07.52PM / Oserogho & Associates
Dispute Resolution Mechanisms have continued to evolve from an acrimonious and expensive litigation system, to Arbitration, which latter process unfortunately also attracts some of the vices associated with litigation.
Other Alternative Dispute Resolution Mechanisms (“ADR”) that have arisen informally to address the short-comings of Litigation and Arbitration include Conciliation and Mediation. As the latter ADRs were not formally codified into some Acts of Parliament, but mostly adopted by parties in their written contracts, some States like Lagos and the Federal Capital Territory (“FCT”), using mostly their State High Court Laws and Rules of Procedure, with some legislation like the Lagos Multi-Door Courthouse Law, have introduced a Multi-Door Court House System as a venue for disputing parties to resolve their disputes using either Mediation, Conciliation or Arbitration methods, in a non-adversarial manner, to amicably reach a settlement.
Lagos Multi-Door Court House
The Lagos Multi-Door Court House (“LMDC”) is a public-private sector partnership created to remedy some of the above-mentioned concerns with the more familiar adversarial and acrimonious litigation system, by the establishment of a standard legal framework for the fair and efficient settlement of disputes through ADR methods like Mediation, Conciliation, Neutral Evaluation, Arbitration, etc.
The LMDC is also reportedly “… the first court-connected ADR Centre in West Africa.”
The Lagos Multi-Door Courthouse Law, 2007 created the LMDC to be an independent, non-profit, Alternative Dispute Resolution Centre with offices located at the Lagos State High Court’s premises, and at such other suitable locations within Lagos State.
The resolution of disputes at the LMDC, using ADR methods, can originate from a Judge of the Lagos State High Court, other Judges of other Courts of Record, Private Individuals, Corporations, Public Institutions and other Organisations that promote Alternative Dispute Resolution processes.
Voluntary submission by all the parties to the jurisdiction of LMDC is mandatory for the LMDC to assume jurisdiction over any dispute submitted to it. Also, submission to the LMDC jurisdiction can also be by the express terms of a written signed contract.
The decision of the LMDC, which must be co-signed by the disputing parties, only become an enforceable Court judgment when endorsed by an ADR Judge of the Lagos State High Court; or by any other person duly authorised to do so by the Chief Judge of Lagos State.
LMDC Practice Direction on Mediation
There is a Practice Direction to assist persons who utilise the services provided by LMDC. Resort and submission to LMDC is an automatic adoption of the LMDC Practice Direction.
The common ways to commence an LMDC Dispute Resolution process include the Parties filing a written request to LMDC for Mediation; referrals of disputes filed at the Courts to a LMDC by a Judge, for the parties to try to resolve their disputes through the LMDC procedure; and direct intervention by the LMDC itself, usually where it is in the public interest to do so.
As already mentioned above, to also ensure that the decision arising from an LMDC proceedings is/are binding, the LMDC Practice Direction require the parties, the appointed Mediator and the LMDC to jointly sign the LMDC decision, with all the parties also adhering to the confidentiality rules of the LMDC process.
Refusal to appear before an ADR Judge, where a LMDC matter is referred back to an ADR Judge, can amount to contempt of Court which carries fines and other administrative out-of-pocket expenses.
Role of Mediation and Admissibility
The LMDC Mediation process is administered by an independently appointed, impartial and experienced Mediator on the subject area of the dispute referred to the LMDC.
The LMDC Mediator does not however have the authority to impose a settlement on the parties to the dispute.
Proceedings, records, reports and such other evidence used in LMDC dispute resolution processes are privileged and without prejudice to the parties in any subsequent proceedings. Such records cannot be divulged or admitted in evidence, neither are they discoverable in any current or future Arbitration, Litigation or other Judicial proceedings except for facts, documents or information that are otherwise already admissible outside the LMDC Mediation proceedings.
LMDC and Statute of Limitation
By the provisions of the LMDC Rules and the Mediation Agreement signed by the parties to a dispute, and to the extent permitted by the applicable Law, the provisions of any Statute of Limitation regarding a dispute is suspended during any LMDC proceedings.
Some progress has been made in the sensitisation of judicial officers to the benefits of recommending LMDC to disputes that can be easily resolved using ADR. The same cannot be said of Legal Practitioners who are usually the primary intermediaries between the disputants and the Court systems.
Following from the above observation is the reality that the culture and perception that litigation is more “profitable” to Legal Practitioners when compared to adopting ADR methods, has continued to constrain and hamper the growth of ADR methods.
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