Before You Sue – Try Settlement

May 12, 2014

by

FATAI ADEYEMO ESQ.

(LLB, BL, pnm).

State Counsel, Ekiti State Ministry of Justice Ado-Ekiti

 It cannot be over-emphasized to say that litigation as a dispute resolution mechanism has failed the test of time.  It is an axiomatic fact that litigation in the real sense of it does not resolve disputes, what it does is that, it leaves a sour taste in the mouth and ultimately severe any existing relationship between the disputants.

Litigation by its nature is adversarial; it determines the legal rights or wrongs of disputants. Section 6 of 1999 constitution of Federal Republic of Nigeria vests adjudicatory power in the courts.  The Courts adjudicate based on the evidence provided by the litigants.

Going to court has the same similarities with preparation for war.  Each of the warring parties selects their best soldiers after which they bring out their best arms and ammunitions from the armoury.   Once the war begins, it may last for years, decades or even centuries.  Most times shame will not allow the party who is at disadvantage to surrender by withdrawing his soldiers and taking his arms and ammunitions back to the arsenal, so the war continues till he is brutally conquered. The hostilities resulting from this lingers on till the end of the universe.

However, some warring parties endowed with wisdom, after a careful study of the tides of the war quickly withdraw their arms and go back to dialogue.  Because they know the resultant effect of the war is wanton destruction of lives and properties.

At the dialogues, most times they reach an armistice and the war is averted or brought to an end.

In litigation, like war, soldiers are the legal luminaries in the team of each of the disputants.  The arms and ammunitions are the array of evidence to be used in proving their cases.  Cases linger on for several years, decades or even centuries in courts.  Most times the original disputants would have died, (except if it is personal action) still the case goes on.  Cases suffer series of adjournments due to the fact that witnesses are not readily available to give evidence, lawyers files lots of application (motions) to frustrate cases, infact the list is unexhaustive.

Also, similar to war, shame does not allow some litigants to back out and look for ways of resolving amicably.  The reason being that at this stage a lot of time and resources would have been expended.  However, some wise litigants go back to work things out.  Most times they settle and their agreement is later filed at the court as consent judgement of the parties.

The solution to the inherent institutional and structural weaknesses in the judicial system is Alternative Dispute Resolution (ADR). ADR is a new approach to dispute resolution without need for formal judicial proceedings.  In other words ADR are those mechanisms which are used in resolving disputes – faster, fairer and without destroying the existing relationships.

ADR is not a substitute for litigation, it only complements it.  ADR is not just a solution to the problems of congestion in courts; it is a necessary succor to litigants in most cases where litigation has failed as a means of settling disputes.

But while ADR seems to address the problems associated with litigation, it must be noted that litigation still remains effective mechanism for resolution of the following types of disputes:

1)   Questions bothering on legal interpretation of statutes or rules.

2)   Where legal precedent need to be set

3)   Where it is necessary to avoid the action being statute barred

4)   Situations where injunctive or preventive relief is necessary to prevent destruction of a res.

5)   Public Policy (e.g. election petitions) etc.

6)   Criminal cases.

It must however be noted with respect to criminal cases, in civilized climes accused persons are sometimes allowed (particularly in non-violent crimes) to plea bargain i.e. plead guilty to a lesser offence with lesser punishment rather than go through the whole adjudication process to determine his guilt or otherwise. He could also strike a deal with the prosecutor by opting to become a witness for the prosecution against a co-offender or greater offender. This process is yet to be fully incorporated into our criminal justice system. In few financial crimes it was used, it has been an object of criticism. The adversaries of plea bargaining believes it engenders crime.

It is not all disputes that are about legal right or wrong which is the foundation upon which litigation is based.  Most times people approach lawyers with problems they want “resolved” and not necessarily “tried”.  It is the responsibility of lawyer to find answers to the following questions, what are my client’s goals or interest? What is the most appropriate dispute resolution mechanism/process in meeting the client’s interest?  Answers to such questions are fundamental in determining the appropriate mechanism to resolving the dispute.

Rule 12 of the lawyers’ Rules of Professional Conduct (RPC) provides that a counsel must advise his client candidly on the merit and probable result of the pending or contemplating litigation.  Whenever a controversy will admit fair settlement, the client should be advised to avoid or end litigation.

It is the duty of the lawyer to figure out the real interest of his client and advise on the most appropriate process.  A lawyer who in the twenty first century offers one dispute resolution process in the nature of litigation is doing so at his own peril.

Forms of ADR processes are Negotiation, Mediation, Conciliation, Arbitration and other hybrid- processes.  Some of the characteristics of ADR processes include, voluntariness, flexibility, privacy, collaborative, participatory, non-judgemental, largely interest based and future focused.

Unlike litigation the court where ADR is being practiced is known as Muliti-Door Courthouse.  A MDCH is a formal integration of ADR into the court system.  Rather than have a court system with litigation as the only avenue for dispute resolution (mono-door court) the MDCH offers disputants the choice of ADR processes that may be appropriate for the particular case.

Proceedings at MDCH are private unlike the mono-door.  Also, MDCH is not limited or affected by territorial or subject-matter jurisdiction unlike the mono-door court.  Litigation produces a win-lose result while ADR produces a win-win result.

It is important to note that the MDCH does not replace private ADR practice.  Even in jurisdictions (Lagos, Abuja and Kano) where ADR has been institutionalized through MDCH, a substantial number of matters are still being resolved through private ADR arrangements.  The difference between MDCH and private ADR practice is that MDCH is court-connected while private ones are not court-connected.

Efforts should be made to make sure all jurisdictions in Nigeria establish MDCH.  An appeal is hereby made through this medium to the government of Ekiti State to do same to enable the practice of ADR become part of the judicial process. Worthy of commendation is the Arbitration bill recently passed to Law and signed by Mr. Governor. This would go a long way in enhancing the practice of ADR in Ekiti State.

The Citizens’ Mediation Centre at the Directorate for Citizens’ Rights in the Ekiti State Ministry of Justice has been doing enormous and wonderful job since its inception. The MDCH when established would complement the job of this centre. Right now when terms are prepared by the centre they are taken to the conventional court for filing and where a party refuses to honour the terms counsel at the centre would have to apply to the court for enforcement.

However, when a MDCH is established and an ADR Judge is appointed to man the affairs of the court, the terms of settlement when filed in the MDCH would automatically become an enforceable consent judgment of the court against the erring party.

It is also suggested that all counsel currently working in the Directorate and those who may be posted there in the nearest future should as soon as possible be trained as certified ADR practitioners.

FATAI ADEYEMO ESQ.

(LLB, BL, pnm).

2014.