Home Interview Why going to court to resolve some disputes is ill-advised-Agbelusi

Why going to court to resolve some disputes is ill-advised-Agbelusi

by Church Times

Dr. Yemi Agbelusi ASMA, FIMC, FICMC, FCIArb is the current Chairman of the Institute of Chartered Mediators and Conciliators, Lagos Branch. He is a trained negotiator, mediation advocate and an accredited mediator and arbitrator.

He serves as a member of the Exco of the Chartered Institute of Arbitrators UK, Nigeria Branch, and contributes as a member in various capacities on several committees. He works assiduously for the promotion of Alternative Dispute Resolution and currently serves on the panel of various ADR institutions in Nigeria and abroad.

A distinguished Alumnus of both the University of London and the University of Lagos, Agbelusi is also a Fellow of the Society of Advanced Legal Studies, University of London, and several professional bodies. He teaches Mediation, Arbitration, and Online Dispute Resolution. In this interview with Church Times, he spoke on the beauty of Alternative Dispute Resolution

What would you consider the background to Alternative Dispute Resolution in Nigeria?

First, we must understand that we have disputes that arise from contractual relationships, family, business to business or person to person. These are normal day-to-day experiences. To resolve these matters, people seek to negotiate resolutions without going to court as a first instance. If that fails, most parties then go to court for the court to enforce the contract between them, that is if they have valid contracts.

The ADR, however, comes in to speed up the justice delivery process. It is an alternative to the court. First, there is a negotiation between the parties. If that fails a trained neutral third party comes in to mediate in the dispute. The mediator only helps the aggrieved parties to find a point of agreement without suggesting any solutions so that the parties own the process and outcome.

In the absence of that, the parties go for arbitration where the third party comes in and makes a binding decision on them after listening to both sides. The decision reached, in this case, is final and binding. The parties can’t appeal against it. The arbitration process does not follow the rules of civil procedures of the court. It conforms to the arbitration act whereby parties submit their evidence. In arbitration, you may need a lawyer to prove your case and make sure the judgment is in your favour. And it may not be in your favour.

But in mediation, you could enter a matter, let’s say in a landlord-tenant dispute; with the tenant owing the landlord money. You could come out from that case with the tenant offering a plot of land to offset the debt. That cannot happen in arbitration or litigation. That is the benefit of mediation. It offers a soft landing for the parties involved.

Did you have to study law to render these services?

You have to study parts of law especially when it has to do with arbitration. You need to study the law of contract, tort, liability and obligations etc.

Without taking a degree in law?

I am currently taking a further degree in law. However, I am doing it to further enhance my skill. I have been well developed over the years by several world-class institutions and as a Fellow of all the relevant ADR institutes and I have acquired all the competences and skill to be accredited and to handle cases whether by adjudication or mediation. I have so far resolved close to 70 cases worth several large sums of amounts in disputes.

What were your initial experiences doing this?

I have done it actively for about 12 years now. The initial difficulties were basically getting parties in dispute to trust you to adjudicate on their matter because they know in ADR there is no appeal. Once you enter an agreement it’s binding but you do it without any pressure. The mediator only facilitates the process. Some cases can last one day or run into several months.

But the different backgrounds I have had in life as a clergy, accountant and mathematician have helped me greatly to render the service effectively. I am able to listen to parties and calm them down and bring them to take a rational decision on their cases so they could go forward in life. I have also had to study cognitive behavioural therapy, and rational behavioural therapy to help parties to take decisions.

Usually, when you hear a story from one party, you feel like going to bring down the head of the other party. But by the time you listen to the other party, you will find out that the case of the first party is not as strong as it was presented.

I have met people who say they want to go to court because they have a good case. But I have had to ask them if their lawyers signed agreements, they would win the case. You don’t get such agreement. So, it may not be a water-tight case Afterall. That is why ADR is a better and reasonable alternative.

One of the cases in Nigeria which by God’s grace I was able to resolve about three years ago was a 29-year-old case. The parties have been to the supreme court and back. About 12 parties were involved in the case out of which about eight were dead as at the time we handled the matter. But the matter was resolved in about three weeks when the case came to us. The case was under the judiciary here in Lagos before we took it over. We have had several cases on real estate, shipping, commercial issues, trade, family disputes and a whole lot.

One of the beauties of mediation is that it comes with some form of dignity and confidentiality. For instance, when mediating in a divorce case, we have what we call divorce with dignity. The husband and wife who want to go their separate ways can sit down and discuss the issues of taking care of the children, visitation, maintenance, welfare and enter an agreement before the court and go their separate ways without dissolving the marriage and all the drama they go through in the regular court. We have done close to 27 divorce cases and some have come back to remarry after they go through the process of mediation. The point I am making is that the parties don’t have to go to court to make contentious statements that will have eternal consequences on them and possibly their children.

On the 29-year-old case? Why was it difficult for the regular court to adjudicate in the matter?

It was a technical matter because a family member had bought a property and the property was willed to some part of the family at the death of the family member. The decision was challenged by another part of the family. The party who was willed the property won at the lower court, the court of appeal, and the supreme court. And when the decision was to be enforced the other contentious party came up with another allegation that the document, they used to win was a forged document. So, the process began again. Cumulatively it took them 29 years.
But God helped us. We were able to settle the dispute when it came to us. The property was sold eventually when they came to us and it was shared as agreed. Eventually, the contentious family came together. It was quite emotional when the matter was resolved and the families reconciled and resolved their differences.

What were the intricacies and the wisdom involved in resolving such dispute?

The training to be an accredited mediator is intensive. It covers active listening. You are like a referee. You can’t tell the parties how weak their cases are. You hear both sides and interpret what they say to each other. When one side says A, you reclarify it and tell B. Effective communication and active listening are very key in mediation. I have done chieftaincy matters, land matters trust matter through that process. We have been able to resolve many of those issues and have had a 90 per cent success rate

Are those elements; like active listening, effective communication missing in the regular court?

When you go to the regular court, you don’t talk. You brief your lawyer and tell your lawyer what the case is in summary. He prepares the process. What you told him in 30 minutes may become a 47-page document when he gets to court and they are all the usual embellishments. When you get to court, they cross-examine you. You don’t really get to tell the judge your case. In the regular court also, the judge does not care about your emotions. That is why a sitting governor can be removed after three years in the office by the court. There is no consideration for the fact that he has just one more year to spend and should be allowed to spend it. There is no empathy in the regular court.

One of the most ill-advised decisions in the world is to go to court for any commercial or contractual matter because when you go to court you are starting a process that you can’t control. It could take years for the matter to be resolved.

The question is, why start a process that could end in 20 or 30 years because you have been wrongfully terminated in your place of work? That is why we advise that people should negotiate first or get a mediator. We call mediation, assisted negotiation. The parties are still negotiating. But the mediator only serves as a referee in the case. And the outcome of the decision is binding on the two parties morally because they took the decision by themselves. Almost 9 out of ten agreements are easily enforced in the case of mediation because the parties involved reached the agreement by themselves.

Last year on September 12, 2020, there was the United Nations Convention on Mediated settlements arising from Mediation. aka. The Singapore convention coming to effect which makes outcomes of mediations acceptable in countries that signed the outcome of the convention. This has now made mediation attractive globally.

Given all the advantages of ADR, is it not a threat to the regular court?

The relationship between the judiciary and the mediation process is that the mediator mediates in the shadow of the law. Most matters go to the judge and they are referred to mediators. Parties are encouraged to go for mediation. If it succeeds fine. If it does not, they can then come to the regular court. I do not really see it as a threat. Rather, ADR plays a complementary role in the judicial process.

So, what are the cases exclusive to the regular court?

Constitutional and Criminal matters are exclusive to the regular court. But then we have native mediation even for murder cases. Mediators can handle victim-offender mediation like in the case of rape or abuse in marriage. The Benue State governor recently mediated in the case of abuse between a journalist and his medical doctor wife.

From what we have seen so far, Nigeria is trying to reform its judicial process. The prison is now called correctional centres. During the Endsars protest, the court, police station and prison were vandalised. It goes to tell you that people are protesting against the system. The judiciary knows it is time to reform the justice system. Most courts in Nigeria today have accredited mediators because there are too many cases that are being attended to.

You have handled close to 70 cases. What kind of cases are they?

My core competence is basically commercial and contractual matters. I do banking matters, wills and trust, family matters etc. Really you don’t have to be a specialist to do mediation. All that matters is to have the skill. Contractual matters and family issues are common among the cases I have handled so far.

What are the issues with couples who come for divorce cases?

I think the divorce cases is a consequence of a breakdown in societal values and the tension in the country. Couples are no longer able to manage their crises properly. Today, the justice system is even moving towards conflict avoidance. We now preach that gospel to couples and encourage them on how to live trouble and conflict-free lives. We extend similar training to companies. We train them on how to relate with their staff so as to forestall trouble and conflict.
What I notice is that people are basically agitated and there are all kinds of pressure in town. So, when there is a little conflagration, they end up in court. But in mediation, we help them calm down and also help them reach agreements that become binding on them.

What is the ratio of the poor to the rich couples on the divorces cases you get?

We have handled a number of celebrity cases. But then one of the beauties of mediation is its privacy and confidentiality. The mediation is done in confidence. What you do during mediation can’t be taken to court as evidence. We don’t even keep note. We only talk about agreement and resolution. That is why it is more dignifying to take the mediation route in solving disputes

How does one access ADR?
There are private mediation and public or court-connected mediation. There are the Institute of Chartered Mediators and Conciliators, Chartered Institute of Arbitrators, The Dispute resolution Hub, The Lagos Multi-door Courthouse among other ADR centres. You can approach the mediator privately to come to your organisation or home or wherever to settle the dispute at stake. That is private mediation. We do that for organisations, companies and individuals. You can also have a court-connected mediation.

Lawyers know good mediators and they can refer clients to these places. You tell your lawyer to try that for you first before going to the regular court. The beauty of the process is that all the different settlement procedures can’t be brought to regular court as evidence. If the case is not solved then you can go to the regular court. To access the services of ADR, you can walk into any of the ADR centres in Lagos or across the country.

Finally, how will you react to Christians or church leaders who go to court?

One of the hallmarks of most religions is love and peace. The Bible is clear that we should judge ourselves by a higher standard. I find it sad that people of faith go to court for adjudication of disputes. We should be able to get alternative dispute resolution embedded in the religious systems and manned by professional trained ADR practitioners to help in getting justice rather than going to the court of law. The Bible enjoins us to settle with people before getting to court.

The Bible is ADR centred. Nehemiah was able to solve cases in the Bible through mediation. Jethro, the father-in-law of Moses counselled Moses to get 70 elders to mediate in disputes so that Moses would not be bogged down by cases. The Bible and other religious books espouse mediation. Jesus himself is our mediator. He has made an atonement for us. God could have sentenced us to condemnation death by chose a mediator in the person of Jesus Christ to arrive at an amicable resolution, so we have a perfect example.

We encourage church leaders to take courses in mediation so they could help their members and some other people that may need their service. It is a 40-hour course for one to become an accredited mediator. Pastors should be able to resolve conflict professionally and without bias or prejudice. Churches can have in-house mediation centres where members can come and make their case instead of going to court. We should be able to explore non- adjudicatory alternatives to resolve our issues. Christians should embrace ADR as a first step to seeking justice.

ADR is cheap and affordable. It is more of a service. It is like paying less than one per cent of the amount in dispute. It is done as a service, not for a living. It becomes cheaper when a pastor is involved in mediation. But then not all people have the temperament to do mediation. It takes a lot of empathy, patience, critical thinking skills and self-discipline which are all embedded in the calling of a good minister.

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