LAGOS STATE UNIVERSITY

SCHOOL OF POSTGRADUATE
STUDIES

COURSE: INTERNATIONAL COMMERCIAL ARBITRATION 1

COURSE CODE: LAW 843

Being a seminar paper presentation in partial fulfilment of the

requirements for the LL.M Degree Programme

TOPIC:
MEDIATION AND CONCILIATION PROCESS,
DIVERSITY AND POWER IN JUSTICE DISPUTE
RESOLUTION.

PRESENTED BY

OGUNDIRAN IDIAT YETUNDE

LECTURER:

DR. O. S. ALAKA
ABSTRACT
Mediation and Conciliation process are one of the main Alternative Dispute
Resolution (ADR) process, which this research paper will be focusing on.
The key objective of bot h Mediation and Conciliation is that civil disputes
are resolved in a way that meets the needs of the parties and conforms to
the fundamental principles of justice1. Mediation and Conciliation are listed
in Article 33 of the Charter of the United Nations 2 as Alternative means of
international Dispute Settlement. The method enumerated appeared to
start from the most informal procedure, namely Negotiation all the way up
to the most sophisticated and the last resort of conflict resolution, which is
judicial settlement3.
The aim of this paper is to identify the, diversity, and power in justice
Mediation and Conciliation process provides in dispute resolution. The
concept and definition of Mediation and Conciliation and there comparism
will be analyzed with the aid of Arbitration and Conciliation Act 1996and
the UNCITRAL Rules for Conciliation and other relevant rules of courts. The
objective and purpose of any method of dispute resolution is to settle a
matter amicably which is a means to an end to get justice. However, a
pacific settlement of the dispute or peaceful resolution of the conflict is the
end result to be attained, which constitutes the object and purpose of our
study of the two methods of dispute settlement.
KEYWORDS: Mediation, Conciliation, Alternative Dispute Resolution (ADR),
Justice, International disputes, UNCITRAL Rules, conflicts, settlement.

1.0 INTRODUCTION

“In promoting access to justice a modern civil justice system

should offer a variety of approaches and options to dispute
resolution. Citizens should be empowered to find a satisfactory
solution to their problems which include the option of a court
based litigation ‘but’ as part of a wider ‘menu of choices’.4
The frequently asked questions is whether Mediation and Conciliation are
the same and if not, whether there are many differences?

1.Alternative Dispute Resolution Mediation and Conciliation by Law Reform Commission November 2010.
2. Chapter vi, Art 33 of the Charter of the United Nations at June 26 1945 at San Francisco.
3. Mediation and Conciliation as Alternative means of settling International Disputes by Sompong Sucharitkul.
4. LRC CP 50-2008 at 12 (Law Reform Commission Consultation Paper).
Mediation is a form of Alternative Dispute Resolution where dispute is
settled outside the court, where mutual party assist negotiation. It is
negotiation carried out with the assistance of a third party, the Mediator in
contrast to the Arbitrator or Judge who has no power to impose an
outcome on disputing parties.5 However one of the numerous duties of a
Mediator is to promote a productive level of emotional expression; deal
with differences in perceptions and interest between parties. Access
Alternatives to settlement, learn about those interest the parties are
reluctant to disclose to each other and invent solutions that meet the
fundamental interests of all parties. The Mediator most of the time try to
avoid shaping issues, proposing settlement or pushing for the achievement
of settlement. Rather they encourage parties to define problems and find
solutions for themselves and they endorse and support parties’ own efforts
to do so.6
whereas in accordance to the 2002 UNCITRAL Model law on International
Commercial Conciliation defines Conciliation as:
“…. A process whether referred to by the expression
Conciliation, Mediation or an expression of similar import
whereby parties request a third person or persons
(Conciliator) to assist them in their attempt to reach an
amicable settlement of their dispute arising out of or relating to
a contractual or other legal relationship. The conciliator
doesn’t have the authority to impose upon the parties a
solution tom the dispute.”
It has been known over the years as a method of settling disputes by
consensus rather than by adjudication. It involves reconciling uniting and
winning over the other party. The appointed Conciliator (who may or may
not be totally neutral to the interests of the parties) is used by the parties
to help build positive relashionships.7 Conciliation is a voluntary
proceeding, where the parties involved are free to agree and attempt to
resolve their disputes by Conciliation. The process is flexible, allowing
parties to define the time, structure and content of the proceedings. These
proceedings are rarely public, they are interest based, as when the
Conciliator is proposing a settlement, will not only take account the parties
legal positions, but also their commercial, financial or personal interests. 8
5. Concept of Conciliation and Mediation and their differences by Justice M. Jannadina Rao.
6. Prof. Robert Baruch and Prof. Joseph Folgen (ibid pg 136).
7. Conciliation in Nigeria. By Nigerian Law Guru (Babalakin & co.).
8. Dispute Resolution, www.hamburg.com

Similarly, there are three major advantage of Conciliation process which

are speedy settlement, economic viability and amicable resolution; It is
considered to be the better alternative even for parties who have not
entered into a formal agreement regarding the mode of dispute resolution.
The evidence led and the proposal made in conciliation proceedings cannot
be disclosed in any other proceedings which exposes the parties to
minimum risk. The Conciliator here just helps in arriving at a mutual
settlement and does not dictate the terms and conditions and it becomes
binding only at the instance of both parties.9

1.1 Regulatory Frameworks for Mediation and Conciliation in Nigeria

Nigeria’s most significant law on Alternative Dispute Resolution, which
applies to the whole country, is the Arbitration and Conciliation Act
Chapter A18, Laws of the Federation of Nigeria (LFN) 2004. The law makes
the adoption of the UNCITRAL Model Law on International Commercial
Arbitration, 1985 possible in Nigeria. This law provides for arbitration and
conciliation and distinguishes between domestic and international disputes
settled by those mechanisms. It makes no provision for mediation.
Mediation in Nigeria is a largely informal process and there are no express
domestic law(s) on mediation that apply to the whole country. Although
Nigeria is a signatory of the UNCITRAL Model Law on International
Commercial Arbitration, it is not a signatory of, and has not adopted, any
treaty on mediation.10 While there are no federal laws governing mediation,
states in Nigeria have enacted laws on mediation. In Lagos State, the
domestic sources of mediation law include the Lagos State Multi Door
Court Law 2007and the Lagos State Multi-Door Court Practice Directions
on mediation, The Citizens Mediation Centre Law 2007 and the Lagos Court
of Arbitration (LCA) Mediation Guidelines 2011.
In Kano State, there is the Mediation and Arbitration Rules 2008. 11Also,
there are specific provisions in the High court Laws of some states that
encourage mediation. Examples are Section 28 of the High Court Laws of
Rivers State, Chapter 63 Laws of Rivers State 1999 and Section 24 of the

1
High Court of Lagos State Chapter H3 Laws of Lagos State 2003.With
respect to institutional framework, the Institute of Chartered Mediators
and Conciliators (ICMC) is the professional body of practitioners in Nigeria

9. VIA Mediation and Arbitration Centre (White Code).

10. Nigeria Arbitration, www.getting the dealthrough.com.
11. E. Ekpenyong and O. Awe, Commercial Litigation and ADR Mechanism in Nigeria.

that regulates and sets standards for the practice of Mediation and
Conciliation. The Institute of Chartered Mediators and Conciliators (ICMC)
also encourages organizations and institutions to adopt Mediation and
Conciliation as the primary mechanisms for addressing disputes. ICMC also
trains and certifies professional Mediators and Conciliators and inducts
them into the Institute as Associate Members (AICMC), Members (MICMC)
and Fellows (FICMC).

1.2 THE ROLE OF DIVERSITY IN MEDIATION AND CONCILIATION

‘’ Diversity is a key driver of innovation and is a critical component in
being successful on a global scale.”12 As Mediators and Conciliators who
must have taught that disputes are more likely to be people problems than
legal problems. Therefore, they must not only listen to participant’s
position, but also search for underlying interests, wants, values and needs
to understand people’s motives so as to reach an agreement between
parties.
It is believed that parties in Mediation have certain values adopted from
culture, background and life circumstances. However, this diverse
backgrounds, culture and life circumstances should be explored in order to
effectively communicate with the parties during Mediation; this skill is
often referred to as diversity competence.13 Diversity Competence is a term
which refers to the capacity of an individual to mediate effectively with
diverse backgrounds culture and life circumstances. Most mediators
believe that this is a central skill for effective Mediation, which allows a
Mediator to:
a. Understand how diversity may affect a dispute.
b. Overcome diversity impasses to find common ground.
 c. The Mediator is tasked with facilitating the dispute resolution
process to respect diversity.
d. By simply acknowledging implication of diverse perspectives in a
dispute and then handling the diversity in a productive manner to
reach an optimal resolution.

12. VIA Mediation and Arbitration Centre (White Code).

13. Egan, M.E (2011 July) Global diversity and inclusion: Fostering innovation through a diverse workforce Forbes
insight.

As global markets are becoming more diverse, it is necessary and wise to

recognize and understand not only the need for more diversity, but the
inherent benefits of diversifying the field.14 the case is stronger in the
context of International Arbitration, due to the increasing geographical and
other forms of diversities of parties and the broadening scope of dispute
referred to Arbitral Tribunals for resolution across the globe.15
The notion of diversity may mean different types of things or people
however when it comes to diversity in the context of Arbitration, Mediation
and Conciliation: Diversity may be evaluated under different groups such
as gender age groups or geographic, cultural and ethnic diversity. Diversity
in International Arbitration and Mediation has been one of the significant
area of development. Since businesses endeavor for diversity to reflect
their customer base, is the same reason why Arbitrators, Mediators, and
Conciliators should reflect the growing diversity of customer of their
services.16
1.3 MEDIATION AND CONCILIATION AS A MECAHNISM TO DELIVER
MORE JUSTICE IN DISPUTE RESOLUTION
The main dispute resolution method is litigation, which is adversarial in nature,
other increasing number of commercial disputes are also resolved by
Arbitration where parties have agreed to arbitrate. However, other well-known
but relatively under used dispute resolution methods for commercial dispute
resolution are Mediation and Conciliation.17
With the passage of time and increase in population, the courts are faced daily
with abundant cases of slightest inconveniences or trouble, which must be
heard and adjudged. The Alternative or External Dispute Resolution became
helpful tool to ensure speedy trials with less procedural work. Its aim is to
avoid judicial trials and settle disputes through compromises, negotiations or
fair settlement.18
Mediation could be said to be the best mechanism in the delivery of justice
under the dispute resolution while comparing it to Arbitration. Arbitration on
one hand is a lot similar to traditional court of adjudication. It is a process
where disputed parties choose an independent Arbitrator who acts as the
judge. On like Mediation which looks more at facilitating, discussion, and
communication to achieve some resolution.19
14. The Role of diversity in Mediation by Jeffrey J. Beaton, Amanda Maxted Jan 2014.
15. Diversity in Mediation by Hon. Ariel E. Belen (RET) FCIARB Jan 2014.
16. Diversity in International Arbitration by Riya Dani.
17. Ibid.
18. Litigation and enforcement in Nigeria: Overview by Fadesike Salu and Safiat Akande (Africa law practice).
19. Arbitration or Mediation: which one delivers Actual Justice? By Devika Jayaraj.

The current trend in commercial litigation in Nigeria is that parties are

instructed to use other methods of dispute resolution and resort to litigation
‘only’ where other methods have failed.20In Lagos for instance all originating
processes filed in the Registry, shall be screened to determine suitability for
ADR and may be referred to the Lagos Multi Door Court House or any
appropriate ADR Institution or Practitioner in line with the Practice Direction
issued by the Chief Judge.21
All cases are screened at the Pre-trial or Commencement stage, where cases
that appears to be resolvable through ADR are assigned to an ADR judge who
may refer the parties to the court appointed Mediator or other Dispute
Resolution Facilitators. The major aim of the Pre-Action Protocol is to ensure
that an attempt is made for amicable resolution of the dispute before the
institution of an action. The current position is that non- compliance with the
Pre-Action Protocol renders the action incompetent and liable to be struck
out.22 Especially if any of the parties refuses or frustrate Mediation, the ADR
Judge will request the refusing party to appear before him or else it will be
treated as a contempt of court which attracts penalty of fine of monetary
terms.23
Also in 2018 the Federal High Court introduced the ADR Centre to provide a
broad mechanism for parties to settle their disputes out of court through
Mediation, Conciliation or Arbitration as directed by the Court. In addition, the
Federal High Court Asset Management Corporation of Nigeria (AMCON)
Proceeding Rules 2018 was also introduced. It is a debt Management
Corporation incorporated by Statute to purchase non- performing loans from
Nigerian Banks. AMCON’s enabling law grants special powers to the Federal
High Court when determining actions initiated by it and also expedite deals
with its claims.24
The above provision and more are not optimally utilized, a more proactive use
of the court’s power to use ADR was encouraged by the need to decongest the
court system and to ensure a more effective and expeditious dispute
resolution system. From the statistics available the number of cases settled at
the Multi-Door Court House is comparatively low when compared to the
numbers that remains in the litigation system. A major reason being that

20. Litigation and enforcement in Nigeria: Overview by Fadesite Salu

21. Expeditious Disposal of Civil Cases Practice Direction No 2 of 2019 (Pre-Action Protocol).
22. Federal High Court (ADR) Rule 2018.
23. Mediation in Nigeria (Templars) Sept. 9, 2019.
24. Federal High Court Asset Management Corporation of Nigeria (AMCON) Proceeding Rules 2018.
Parties are reluctant to submit to the Mediation process and even Litigants are
not fully ready to embrace this change that is upon us. As at date only few
states that have replicated the Multi-Door Court House concept i.e Kano, Lagos
and the Federal Capital Territory Abuja.25

CONCLUSION

Mediation as a tool for resolving disputes peacefully has been used in Nigeria
from time immemorial. In ancient times it was often an alternative to wars and
battles. The mechanism provided an opportunity for face saving even among
the egocentric and prevented wars. In modern times mediation remains a
useful mechanism in dispute resolution. It is expeditious, cost effective, face
saving, maintains relationships often destroyed in adversarial proceedings and
focuses the parties on their real interests. The introduction of the court system
commenced a trend for litigation. Urbanization fueled the trend. Nigerian
courts have come to a realization of the role of ADR quite aside from imposed
decisions in an effective justice delivery system. The Nigerian government has
tried to promote mediation.

The lawyers have contributed to the promotion of ADR and the multi-tiered
dispute resolution clause with mediation as a prior step to arbitration or
litigation is becoming increasingly popular in contracts. The Nigerian legislative
framework is being revamped to ensure that the system adequately responds
to modern challenges in the field of mediation. There has also been an
appreciation of the need for training in mediation to meet modern challenges
High priority is being accorded to attaining the highest standard of practical
training in mediation and developing the requisite skills. Indeed, there is an
appreciable number of CEDR UK accredited mediators and Conciliators in
Nigeria. The quest to keep with up modern training needs and skills acquisition
is being driven by lawyers. The users however are yet to fully embrace
mediation as an alternative to litigation. There is scope for further
enlightenment to ensure that a greater percentage of disputants are exposed
to the benefits of mediation and the goal of reducing the burden on the
litigation system is achieved.

25 Various state laws prescribe limitation periods for different classes of action. Negotiations /
discussions for settlement do not stop time from running for purposes of the statute of limitation.
See Nigeria Customs Service and Nigeria Customs Service Board vs. Sunday Osaro Bazuaye (2001) 7
NWLR 357

REFRENCES

 Alternative Dispute Resolution, Mediation and Conciliation by Law

Reforms Commission. Nov. 2010.
 Globalization, International trade and Nigeria’s Economic Development,
issues and perspectives
 Concept of Conciliation and Mediation and their differences By Justice
M. Jannadina Rao.
 The role of Diversity in Mediation by Jeffrey J Beaton, Amanda Maxted
January 2014.
 Litigation and enforcement in Nigeria: Overview by Fadesike Sahi and
Safiat Akande, Africa Law Practice.
 High Court of Lagos State (civil Procedure) Rules 2019
 Olakunle Orojo and M. Ayodele Ajomo Law and Practice of Arbitration
and Conciliation in Nigeria (1991).