On Thursday 22 June, ARI hosted the launch of “How alternative dispute resolution made a comeback in Nigeria’s courts”. The authors, Dr Emilia Onyema of SOAS, University of London, and Dr Monalisa Ofure Odibo of Bangor University, reflected on the growth of the Lagos Multi-Door Courthouse (LMDC) since its founding 15 years earlier, and the resurgence of alternative dispute resolution (ADR) in Nigeria. Below are 10 salient points from the discussion:
- Litigation was not always supreme
In pre-colonial Nigeria, local communities practised different dispute resolution processes which encompassed elements of negotiation, mediation and arbitration. By contrast, the colonial administration introduced a judicial system modelled on English laws and practices. Courts designed for European settlers gradually gained favour among Nigerians, primarily because their rulings were enforced by the state authorities. Litigation became the preferred means to resolve disputes. The 1999 constitution reinforces this prejudice, while law schools, attorneys, judges, court officials and police sustain the status quo.
- Justice is slow and stressful
Nigeria’s courts face significant backlogs, cases are subject to severe delays, and the whole judicial process carries a huge emotional expense. Few disputants understand what is said in court. The system is structured to include procedural questions, with lawyers frequently appealing technicalities all the way to the Supreme Court. Nigerians are acutely aware of their constitutional right to appeal; however, the system is open to abuse. With many cases dragging on for 20 years or more, some disputes outlive the plaintiffs and defendants.
- The LMDC offers a different model
In recent years, the Nigerian private sector has embraced arbitration as a means to resolve disputes without having to wait for a judicial ruling. In June 2002, Kehinde Aina introduced an adapted version of the Multi-Door Courthouse (MDC) in Lagos. This was an innovation spearheaded by Harvard law professor, Frank Sander, under which disputants are presented with a series of “doors” leading to different dispute resolution mechanisms (much as one finds doors to individual flats in an apartment block). The model stresses the equivalence of mediation and arbitration with litigation. According to Sander’s model, the MDC would share a single registry with the formal court system, facilitating case management; however, this has yet to come to pass in Lagos.
- Lagos as a test-bed for ADR
Nigeria’s commercial capital has an innovative and forward-looking government. Babatunde Fashola was the first Senior Advocate of Nigeria (SAN) to serve as Governor of Lagos State. He supported the introduction of the LMDC during his term of office, May 2007 to May 2015, and prior to that as Chief of Staff to Governor Bola Tinubu. The Lagos State judiciary embraced the MDC scheme during the tenure of Justice Ayotunde Phillips, who served as Chief Judge from July 2012 to July 2014. Before the Lagos Multi-Door Courthouse Law was enacted in June 2007, the use of the LMDC was entirely voluntary, with disputants mandated to use the scheme if one or more of the parties approached a judge. The 2012 High Court Civil Procedure Rules provide for all cases filed to be screened for suitability for ADR, and if appropriate, referred to the LMDC.
- Mandatory referrals are controversial
By referring cases for mediation, judges raise awareness of the MDC scheme among the public, which might not be aware of alternatives to litigation. Forcing parties to engage with the LMDC eradicates the “signalling effect of weakness” under which disputants – or their lawyers – might hesitate to propose settlement by ADR out of a fear that their opponent would then underestimate the strength of their case or their resolve. As a majority of civil disputes are concluded on the basis of an out-of-court settlement rather than a judicial determination, the very act of convening parties might expedite the resolution of their case – or at the least, help them to better understand the nature of their dispute. Finally, referrals reduce the number of cases handled by the courts, reducing the backlog in the formal system.
By contrast, informal dispute resolution is attractive precisely because of its voluntary nature. If the parties approach the process in good faith, it is more likely to lead to resolution than if they are reluctant to participate. This is particularly the case where disputants do not consider their case to be suitable for ADR. They may come to feel that they are being denied their day in court. Equally, the process is open to abuse – lawyers can use the additional step as a delaying tactic.
- The Citizens’ Mediation Centre
Low value civil disputes are increasingly referred for mediation rather than proceeding to the magistrates’ courts. Since 2010, no cases have been heard by the Lagos State rent tribunal. These disputes have instead been handled by the Citizens’ Mediation Centre (CMC), which exists to provide indigent Lagosians with a free means of dispute resolution. CMCs are administered by Local Government Associations, rather than the Lagos State government. They are more accessible to ordinary citizens than the LMDC, located at the High Court. In Lagos, the CMC handles as many civil disputes each year as are filed with the courts.
- How can the LMDC grow?
It would not be helpful for government to subsidise the LMDC in order to increase the number of cases it handles. The Courthouse offers a valuable service; users should pay a fee to use it. Once the state is the sole source of funding, an institution becomes dependent on the generosity of government, which is liable to change as politicians come and go. The LMDC should assert its independence. A recent pilot with three local banks, whereby the LMDC charged fees to resolve disputes raised by customers, demonstrates the potential. However, to undertake such initiatives, the LMDC must not be bogged down with small-value disputes – it needs to retain capacity to handle serious commercial matters.
- What future for court-connected ADR in Nigeria?
The Supreme Court intends to open a mediation centre, but court-connected ADR is not the answer to every problem. Reducing the number of outstanding cases in the system would ease the burden on the judiciary in a much more effective manner. The government should instead promote ADR at the courts of first instance (magistrates’ courts and the High Court). Lawyers are also part of the problem – they want to keep cases in the system, rather than have them resolved.
- Where do customary dispute resolution mechanisms fit in?
The more avenues available to resolve disputes, the better. That includes customary courts and area courts. The important question is how rulings from customary dispute resolution processes can be enforced by the state. It might be possible to borrow from the LMDC model and have a duty judge sign an agreement drawn up following mediation or arbitration. Enforcement remains key to increasing confidence in ADR. If traditional chiefs or community heads are able to resolve local disputes then they should be able to obtain a court order. In Ghana, customary arbitration is recognised in the ADR Act 2010. Chiefs in certain parts of the country are able to resolve disputes, reduce the agreement in writing, and have it enforced by a judge.
- What more could be to convince trainee lawyers of the advantages of ADR?
Aspiring advocates attending the Nigerian Law School (NLS) can take a course in ADR, but this is delivered by a private provider and additional payment is required to participate. The NLS curriculum should be redesigned to reflect the breadth of potential practice areas. Trainee lawyers already spend four months attached to a local institution. Historically, this has been split to allow for a two-month placement with the courts; and a further two months working at a law firm. The LMDC is considered part of the court architecture so there is no reason why NLS students cannot be placed there. The Courthouse is short-staffed and could benefit from working with trainee lawyers, who also need to gain practical experience of case management. ADR should also be included in the law curricula at Nigerian universities so that aspiring advocates have a sense of its value before they attend the NLS.