Disputes form an integral part of human existence and thus, are inevitable in the grand scheme of human existence. The existence of disputes arises from a variety of factors that set the terms and conditions upon which humans relate and co-exist and a breach of such terms and conditions.  As easy as it is to agree that humans cannot co-exist peacefully without the occurrence of conflict, it is also agreeable that humans cannot co-exist in unsettled disputes hence, the need for resolution of these disputes when they arise.

It is due to the abovementioned, that antediluvians have devised means of resolving such disputes which include submitting themselves to an unbiased party who becomes a judge, based on facts presented by parties. This system of justice was revered as fair and just as it protects the interests of parties to an extent as well as the relationship between parties.

With time, this practice evolved and rules upon which decisions were made over disputes between parties were codified. With the advent of the court system, parties began to take longer time to gather evidence to prove and also to canvas arguments in support of their case. This system encouraged longer time for the dispensation of justice, and more stringent rules of proof. This system also eradicated the place of sentiments and bias in decision-making.

This article seeks to examine the distinctive features of each of the abovementioned methods of dispute resolution.

BACKGROUND

Mediation has in old times been perceived as a less attractive and remote option for dispute resolution. In recent times, there has been a notable shift as mediation gained popularity, particularly due to its accessibility and the relatively straightforward process. The popularity gained over time and further received a boost with the advent of the Lagos (State) MultiDoor Court (LMDC)House System to enhance and deepen alternate means of resolving disputes between litigants/parties. The LMDC system has paved the way for many other states of the Federation to create such institutions[i] The enactment of the Arbitration and Mediation Act[ii] has further brought forth tremendous opportunities(options) for the enhancement of mediation practice in Nigeria.

CONCEPTUAL ANALYSIS

This discussion seeks to draw a distinction between mediation; an alternative method of dispute resolution and litigation; the traditional method of dispute resolution.

LITIGATION

The Merriam-Webster Dictionary defines Litigation as the act, process, or practice of settling a dispute in a court of law[iii]. Traditionally, litigation has been the primary method of resolving disputes in the country’s legal system. Litigation, in simple terms, involves the process of suing someone or trying them for a crime. The process usually involves preparing processes, exchanging same, gathering evidence, proving entitlement to claims, and canvassing arguments, all in a bid to sway the mind of the judge to grant or refuse the claims as put forward.  It is usually a judicial contest to determine and enforce legal rights. This system of dispute resolution was usually strict and procedural. This was usually done to ensure that whatever claims were sought, can be substantiated. The system was characterized by evidence, a winner and a loser in most circumstances.

However, the drawbacks of litigation, such as its adversarial nature, lengthy process, and high costs, have led to a shift towards alternative dispute resolution (ADR) methods, particularly mediation.

MEDIATION

Mediation is a structured, interactive process where an impartial third party neutrally assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. All participants in mediation are encouraged to actively participate in the process. Mediation is a “party-centered” process in that it is focused primarily on the needs, rights, and interests of the parties[iv]

Simply put, mediation is a form of ADR where a neutral third party, known as a mediator, facilitates communication and negotiation between the parties involved in a dispute. Unlike litigation, mediation encourages cooperation and collaboration rather than confrontation. One distinguishing feature of mediation is that it is usually party-driven or party-oriented. It provides a safe and confidential environment for parties to express their concerns and interests and work towards finding mutually acceptable solutions, while also preserving relationships.

MEDIATION V. LITIGATION: THE WAY TO GO

As has been stated earlier, the globe is gradually tending towards alternative means of dispute resolution as it is less costly, time-consuming, and above all, it preserves the relationship between parties.

Commercial mediation is still a growing practice in Nigeria and is not, at the moment, as common as litigation or arbitration. Nonetheless, it is unarguable that mediation has gained increased recognition in the commercial sphere and parties are increasingly making it a compulsory part of their agreements, arrangements, transactions, or contracts.

In Nigeria, litigation and mediation are two common methods of dispute resolution. However, mediation has several advantages over litigation. We shall now proceed to mention a few of the advantages of mediation over litigation.

1. COST-EFFECTIVENESS: It is undisputable that mediation is more cost-effective than litigation. The cost of hiring lawyers and going through the legal process can be quite high and demanding. Mediation, on the other hand, is less formal and less expensive.
2. SPEEDY DISPENSATION: The turnout time for mediation is faster than that of litigation. Litigation can take years to resolve, while mediation can be completed in a matter of weeks or months.
3. FLEXIBILITY: In terms of procedure, mediation is more flexible than litigation. The parties involved in mediation have more control over the outcome of the dispute. They can come up with creative solutions that may not be possible in a court of law.
4. CONFIDENTIALITY:  It is settled that mediation is confidential. Anything discussed during the mediation process cannot be used in litigation and is not in the scope of information to be put before the court or in the public space.
5. FOSTERS HEALTHY RELATIONSHIPS: Mediation is less adversarial than litigation. The parties involved in mediation work together to find a mutually acceptable solution to their dispute. This can help preserve relationships and prevent future conflicts.
6. INFORMAL: Mediation is so informal that if a contractual agreement does not recognize any Alternative Dispute Resolution option, mediation may be scheduled by mutual agreement of both parties to the contract.
7. PARTY-DRIVEN: Mediation also offers parties greater control over the outcome of their dispute. In litigation, a judge or jury makes the final decision based on legal principles and precedents. This can often lead to outcomes that neither party finds satisfactory. In mediation, however, parties have more flexibility in crafting their own solutions that meet their specific needs and interests. This promotes a sense of ownership and satisfaction with the outcome.

While mediation offers numerous benefits, it is important to note that it may not be suitable for all types of disputes. Some cases, such as election petitions as well as those involving complex legal issues or a power imbalance between parties, may require the intervention of a court. In such instances, litigation may be the more appropriate or suitable mechanism to embrace.

It is safe to say that alternative dispute resolution methods, particularly mediation, have gained popularity in Nigeria as a viable alternative to litigation. Mediation offers speed, cost-effectiveness, control over outcomes, improved communication, and relationship preservation. While litigation remains necessary in certain cases, the increasing adoption of mediation reflects the state and the tendency of the globe towards a more mutual and speedy dispensation of justice.

Remarkable among the nascent position is the approach of the Lagos State High Court which now has set a week aside which is known as the Lagos Settlement Week where the court recommends cases for compulsory mediation, with the sole aim of helping the parties to reach an amicable settlement of their disputes.

It is also worthy of note that even the Court of Appeal has now recognized the place of alternative dispute resolution and has even created a Court of Appeal Alternative Dispute Resolution Centre[v]. The National Industrial Court system is also not left behind.[vi]

In conclusion, while litigation and mediation are both viable options for resolving disputes in Nigeria, they differ significantly in terms of cost, time, nature of proceedings, and outcome. The choice between litigation and mediation depends on various factors such as the nature of the dispute, the parties involved, and their willingness to cooperate with each other.

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[i] https://thenigerialawyer.com/access-to-justice-and-multi-door-courthouse-system-in-nigeria-challenges-and-prospects/ accessed on September 16, 2023

[ii] https://www.afronomicslaw.org/category/analysis/new-era-arbitration-nigeria-arbitration-and-mediation-act-2023#:~:text=On%2026th%20May%202023%2C%20the,and%20mediation%20proceedings%20in%20Nigeria. accessed on September 16, 2023

[iii] https://www.merriam-webster.com/dictionary/litigation  accessed on September 16, 2023

[iv] https://en.wikipedia.org/wiki/Mediation accessed on September 17 2023

[v] https://www.courtofappeal.gov.ng/structure accessed on September 25, 2023

[vi] https://nicn.gov.ng/adr-center accessed on September 25, 2023

Written by Oluwafemi Faniyi for The Trusted Advisors

Email us: info@trustedadvisorslaw.com

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