Sowemimo: Alternative dispute resolution will not encroach on legal practice
Sotayo Akintoye Sowemimo, an arbiter is a member of the Federal Government’s committee for the development of a National Arbitration Policy. He also leads the sub-committee on Alternative Dispute Resolution and Small Claims.
In this chat with GBENGA SALAU, he spoke on Alternative Dispute Resolution (ADR) and why critical stakeholders should embrace the initiative.
Are there outstanding instances where Alternative Dispute Resolution (ADR) has proven to be the gamechanger? In other words, instances where you have resolved disputes using ADR?
The cases I have resolved through Alternative Dispute Resolution (ADR) could be classified into about three or four broad areas.
The first is landlord and tenant matters. One of the cases I got involved in was the one involving a tenant, who had occupied the property for over 30 years. By the time I got involved, the original tenant had died and his son took over the business that the building was housing.
As a commercial property, the building was due for redevelopment according to the landlord. So, I had to see how the tenant would move out seamlessly without any friction, especially considering the good relationship that the tenant had had with the landlord’s family.
I mediated between both parties and the tenant moved to a smaller building within the premises, freeing the main building that was earmarked for renovation, while searching for an alternative place within the area. As the main house was vacated and the renovation carried out, the tenant in the process got another property that was not too far away from the location.
The mediation sorted out everything, and many other cases were resolved without friction. That is the beauty of mediation. You would find out in similar circumstances that a lot of tenants would want to move out but are facing challenges and an understanding of that would help goes a long way.
The second case was an employee/employer matter. The employee was made redundant after involvement in an accident that led to his disability. He complained to his employers about the injury and was allowed to go for medical treatment.
However, one of the recommendations of the medical report was that he should be moved from the factory floor, which the employer/agent never did. As a result, his health deteriorated, and his performance was affected. This development made him redundant. He came to me and I found that the employer has an insurance policy that covered such an accident. I also observed that the employers were negligent, and failed to act when they ought to. They never put in any claim to the insurance company to enable the victim to get compensation for the disability. Through mediation, we were able to get the employers to put in the insurance claim since he was insured. The gentleman was able to obtain his compensation which ordinary he may not have been able to do on time if we had gone to court on a matter like this.
The other case I was also involved in which ADR was more suitable for, was a banking dispute in which a bank was claiming some money from the customer by way of interest for a loan repayment default. We sat down to work out the sum involved. A matter like this would not have been suitable for litigation, hence we had to go into mediation to agree on the sum that was due, and what the percentage of interest was.
The issue at stake was not whether the bank has a right to charge interest or the customer had a right not to pay interest but had to do with the figure used, the calculation/reconciliation of the figures of the interest, and the total sum due.
Another case I was involved in was that of an estate developer that was marketing houses. He asked for full payment for the apartments within six months. The purchaser paid fully for the house within the specified time, but unfortunately, the house was not completed within the period it should have been delivered, and the buyer had to wait for about a year before the house was completed.
During the period that the owner was waiting, we took physical possession of the property despite the house not being completed. The estate developer, however, came back to the buyer to obtain the keys to enable him to complete the house.
Interestingly, on completion, the buyer was given an extra bill by the developer. To resolve the matter, we met with the estate development company, after a letter was written to them outlining the losses suffered by the buyer as a result of the delay and interest on a loan that had to be paid.
The total amount added up was about N1.4m and we requested in the letter that the extra money being required to be paid by the buyer should be deducted from the sum being claimed by the owner and that resolved the matter as they did not push for extra money used in completing the building. If this case had gone to court, it probably would have still been in court, not settled.
Having been in practice in the country for over 30 years, do you think that Nigerians are still receptive to this form of dispute resolution?
Anything new is usually not embraced on time, because it takes a while to get people convinced, and for a novel idea to be accepted. In most jurisdictions where ADR has been introduced, they’ve been some form of reluctance. The other problem is the professionals – that is lawyers, who are in a better position to convince the public of the benefits of ADR. Unfortunately, they see ADR as encroaching into their area of practice, and there are fears that ADR might just take over their roles because ADR processes are not purely legal. This, indeed, is the reason that lawyers are more or less opposed to ADR despite seeing its benefits.
There is also the belief that ADR will encroach on legal practice. This belief is erroneous because ADR originated to address the challenges of the legal system, litigation precisely. It is to complement and not compete with legal practice, the very reason that professionals that are lawyers need to be educated and trained on ADR. The acquisition of knowledge and skills on ADR will expand the scope of legal practice and improve the standard of service that lawyers render to the public. ADR should be seen as a practice, which will address several problems often encountered in litigation, as well as the challenges of the legal system that enable lawyers to generate more income from their practice.
In specific terms, what edge does ADR have over litigation?
The major challenge that the legal process in the country faces, is the high cost that is involved. The cost of seeking justice and resolution of a dispute through litigation is quite enormous, and the delay encountered in the course of the legal process and the complexity of the legal procedure constitutes another challenge. But ADR is cost-effective in the sense that it does not require full professional assistance. Again, ADR processes are flexible and faster than litigation, just as ADR is more simplified as to what obtains in litigation.
Litigation is seen as rigid and complex to the point that one cannot follow the process without professional assistance, but anyone can walk into any ADR centre or multi-door court to seek resolution of a dispute and obtain the necessary assistance without any professional assistance.
What are the major factors that could impair justice delivery through this procedure?
The challenges of ADR in facilitating access to justice are lack of adequate infrastructure, human resources, and insufficiently qualified personnel, as well as lack of education and enlightenment of the public on its benefits. There is a need for the public to be educated and enlightened on the benefits of ADR and its advantages over litigation. Most of the challenges can be addressed by providing sufficient funding for the promotion of the ADR system and practice.
Are there ways that the government can help in promoting this form of dispute resolution?
The judiciary, the legislature, and the executive arms can promote ADR by contributing their quota to advancing the initiative within the country. First and foremost, there is a need to provide a legal framework for ADR in the country. That is, the provision of a specific law, which gives legal recognition to ADR operations and practice. A bill to that effect could be sponsored by the executive, as the case may be, and the judiciary, no doubt would support the promotion of the initiative through the application of respective laws on ADR.
Presently, reliance is placed on the administration of justice, promotion of settlement of the dispute within the administration of justice, and court practice direction, even though some states have passed laws to establish ADR centres and multi-door courts.
The provision of adequate funding would go a long way in promoting the ADR system and practice in Nigeria. So, sufficient funding in the budgetary allocation should be made to enable the ADR system and practice to develop to facilitate access to justice for the public.