Mediator’s Perspective: “COVID-19 New Normal: Leveraging Law and Technology to Promote Good Governance; Ensure Food Security In A Sustainable Environment”
A PAPER PRESENTED BY
CHIEF EMEKA J.P OBEGOLU,
PRESIDENT, INSTITUTE OF CHARTERED MEDIATORS AND CONCILIATORS (ICMC)
PRESIDENT, PAN AFRICAN LAWYERS UNION (PALU)
CHAIRMAN, ABUJA CHAMBER OF COMMERCE DISPUTE RESOLUTION CENTRE (ACCI-DRC)
ON WEDNESDAY, 25TH NOVEMBER 2020.
Dealing with the unforeseen challenges caused by the COVID-19 pandemic has taken a significant toll on people all across the world.
As many as 213 Countries and territories have registered COVID-19 cases, and the entire world is buzzing with uncertainty and questions: How long will the pandemic last? What will people’s lives look like once the pandemic is over?
At the moment, many countries have taken measures — some of them stringent — to slow down the spread of SARS-CoV-2, the virus that causes COVID-19. While some of these countries are now considering whether to ease the measures, others have already decided to keep them in place over the following weeks.
Many countries have declared restrictive measures, such as lockdown, shelter in place or stay at home orders, to contain the pandemic at a local level. However, the wildly differing responses and response timelines have left people wondering if authorities failed to take the situation seriously early on; when they could have done more to slow down the spread of the coronavirus.
This paper is going to be focusing on:
- Mediation practices pre COVID 19 era;
- Mediation during COVID 19 pandemic.
- MEDIATION PRACTICES PRE COVID 19 ERA:
Mediation for the purpose of those who do not know, is one of the conflict resolution mechanism in the Alternative Dispute Resolution (ADR) toolbox. ADR serves an important role in promptly resolving matters and assisting courts to manage the disruption to case management caused by the pandemic. Platforms including Zoom and Microsoft Teams have been used to facilitate remote mediation, conciliation and other ADR proceedings.
Prior to COVID 19, mediation usually take the form of private mediation or court-annexed mediation. Private mediation involves the parties seeking the assistance of an independent third party who offers his or her services on a commercial basis, e.g. the Lagos Court of Arbitration and the Abuja Chamber of Commerce Dispute Resolution Centre (ACCI-DRC).
Court-annexed mediation involves matters which have already been filed in Court, but with directives from Court that parties should settle the dispute through mediation and in such instance, directs parties to go to mediation, and whatever mediation settlement agreement is reached by parties is entered as the judgment of the Court. This is in line with Section 24 of the High Court Laws of Lagos State which provides that in any action in the High Court, the courts may promote reconciliation among the parties thereto and encourage and facilitate the amicable settlement thereof.
For Court-annexed mediation, the Multi-Door Courthouses across the country are clear examples of this. There are also the Mediation Centres set up by the government, where disputing parties can request for mediators as well as conduct mediation proceedings. Such Centres also support the training of mediators. In Lagos, for instance, the Citizens’ Mediation Centre (CMC) provides a non-adversarial forum for the mediation and settlement of disputes between parties who voluntarily agree to mediation..
- MEDIATION DURING COVID 19 PANDEMIC
The outbreak of the coronavirus (COVID-19) pandemic continues to affect the legal profession alongside other major industries in unprecedented ways. Lockdowns and social distancing measures have enforced court closure and, with more limited virtual alternatives, this situation will increase delays in dealing with backlogs. In order to deal with this novel situation, the profession’s response is largely going to focus on leveraging tech-based solutions to keep the wheels of justice moving. Already, mediators are using video conferencing technology to conduct hearings. While significant flexibility has been shown by both mediators and parties in participating in video-hearings, more radical shifts are required to manage the impact on both existing and pipeline cases.
Furthermore, COVID-19 has been heralded as a tipping point for mediation, and indeed, many successful stories have emerged. Disputes that are being resolved online through mediation since March 2020 vary from commercial disputes, especially
regarding supply chains that have been broken, to family disputes, e.g. navigating dysfunctional relationships in a confined space. Such a shift is not only evident in countries where mediation is widespread, like the US, UK and Nigeria, but also for example, in Croatia, where the first online mediation in fact took place during lockdown.
During the current pandemic and weakened economy, mediation can be an attractive alternative to entering into proceedings through understaffed and partially closed courts, which once they fully reopen will have a backlog of new cases. Mediators will usually accommodate parties online through video conferencing, email etc so there is no need to visit their offices.
Below are some of the protocols put in place for ease of dispute resolution during COVID-19 19 pandemic.
Protocols for online hearings:
- electronic witnessing and signing
Many mediators have developed protocols, to govern the conduct of online hearings, including handling e-documents, evidence and cross-examination. These include but not limited to The DRC ACCI Online Dispute Resolution (ODR) Guidelines, The International Chamber of Commerce (ICC) ODR Guidelines etc.
- Electronic witnessing and e-signing of documents:
This has been temporarily allowed; however, there are significant inconsistencies among jurisdiction’s approaches.
The cost of practice and procedure of commercial mediation resulting from the pandemic is difficult to determine presently as it has been undergoing changes. Some costs may have been saved due to reduced requirements to travel to physically attend hearings. Conversely, there has been a need to invest in technology and it is interesting to note that Virtual Procedural hearings were 20% to 40% slower, resulting in associated costs.
In conclusion, it is important to stress that judiciary, governments and international standard setting organizations should now more than ever promote the use of mediation. Supporting mediators and establishing e.g. court related online mediation protocols will allow the courts to focus on the cases which are not suitable for mediation, and handle them more efficiently. This will help to clear the backlog of cases and also with resolving certain cases in a more appropriate manner. Therefore, it will enhance access to justice.
Likewise, addressing new, pandemic-related issues, such as related to the signing of documents, i.e. enforceability of mediated settlement agreements signed in electronic form, to allow for a smooth process to be finalized online would also be helpful going forward.
Certainly, the major difference between online and in-person mediation is that the clients’ environment is out of the mediator’s control, which can lead to issues with privacy and confidentiality. Mediators must adapt their protocols and carefully consider the new ethics issues. This is an area which should be of concern for regulatory bodies as well—whether they are states, independent associations or international organisations in Nigeria.