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Law and Practice of Conciliation in Nigeria

Published online by Cambridge University Press:  13 February 2012

Abstract

This article gives a general overview of an alternative dispute resolution (ADR) mechanism known as “conciliation” and the legal framework relating to its practice in Nigeria. Using the UNCITRAL Model Law on International Commercial Conciliation as a normative framework, the article critically analyses the proposed reforms to the existing legal framework for conciliation in Nigeria which are contained in the Nigerian Federal Arbitration and Conciliation Draft Bill and exposes some of its deficiencies. It also investigates the effect of the statutes of limitation on conciliation proceedings. The article also suggests that the institutionalization of conciliation will enhance its viability as an ADR mechanism in Nigeria.

Type
Research Article
Copyright
Copyright © School of Oriental and African Studies 2012

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References

1 See Orojo, JO and Ajomo, MALaw and Practice of Arbitration and Conciliation in Nigeria (1991, Mbeyi & Associates) at 4–6 and 9–11Google Scholar.

2 “Med-arb” refers to an ADR mechanism that combines both mediation and arbitration processes.

3 See Resnik, JMany doors? Closing doors?: Dispute resolution and adjudication” (1998) Ohio State Journal of Dispute Resolution 211 at 217–18Google Scholar.

4 See Rt Hon Lord Woolf, MRInterim Report on the Civil Justice System in England and Wales (1995, Lord Chancellor's Department) chap 4 at 20, para 7(3)Google Scholar. See Cremora, AAnalysing ADR mechanisms in Europe and EU activity in the field: The communitarisation of private justice” (2006) The Jean Monnet Seminar Series 6Google Scholar.

5 Instances include where there are questions bordering on the legal interpretation of statutes or rules, and cases involving serious criminal offences.

6 The term “conciliation” is derived from the Latin conciliat, past participle of conciliare [to acquire] and concillium which means “council meeting”; see The Encarta Dictionaries (2007, Microsoft Corporation)Google Scholar. To conciliate means: (1) to bring disputing sides together; to work with opposing parties with the goal of bringing them to an agreement or reconciliation; (2) to get somebody's support or friendship back; to bring a disagreement with somebody to an end, or overcome somebody's anger, suspicion or hostility: ibid. See also The Blacks Law Dictionary (5th ed, 1979, West Publishing) at 262Google Scholar, where “conciliation” is defined as “the adjustment or settlement of disputes in a friendly manner”.

7 See Nwosu's, K (ed) commentary in (2004) 1/1 Negotiation and Dispute Resolution Journal 119Google Scholar.

8 Professor Ezejiofor holds the view that it is wrong to use the terms “mediation” and “conciliation” interchangeable. According to him, the procedure a mediator adopts to settle a dispute is to bring the parties together so that they may themselves work out a compromise solution to the dispute. The mediator does not suggest a solution to the parties and cannot compel them to reach a settlement. In conciliation, the conciliator first inquires from the parties whether they are prepared to settle the dispute amicably; if the response is positive, he then arranges a joint meeting with the parties. After the session, he may meet each party separately and privately with a view to discussing the matter in confidence and finding out each party's “bottom line”. He then carefully considers each party's evidence and submissions against the rebuttal of the other party. Against this background, the conciliator draws up and proposes the terms of a settlement which represents in his perception a fair compromise of the dispute. See Ezejiofor, GThe Law of Arbitration in Nigeria (1997, Longman) at 7Google Scholar. According to Redfern and Hunter “the term ‘mediation’ is often used interchangeably with ‘conciliation’. Sometimes, however, mediation is understood to involve a process in which the mediator is more proactive and evaluative than in conciliation and sometimes the reverse usage is used; there is no national or international consistency of usages of these terms.” See Redfern, A and Hunter, MLaw and Practice of International Commercial Arbitration (2nd ed, 1991, Sweet & Maxwell) at 26Google Scholar.

9 A/RES/57/18, available at: <http://www.uncitral.org/en-index.htm> (last accessed 20 September 2011).

10 See Redfern and Hunter Law and Practice, above at note 8 at 503.

11 For further insight regarding the use of conciliation in preventing international conflicts and promoting international peace, see BCN Osisioma, “OAU mechanism for conflict management: An assessment” in Garuba, A (ed) Capacity Building for Crisis Management in Africa (1998, National War College) 207Google Scholar.

12 For example, sec 13(1) of the Trade Disputes Act (cap 432 LFN 1990, cap T8 LFN 2004) provides that: “An employer must not declare or take part in lock out and a worker is enjoined not to take part in a strike in connection with any trade dispute, where the procedure relating to recourse to amicable settlement of the dispute has not been complied with or a conciliator has been appointed.”

13 Courts are enjoined to give effect to parties' undertakings not to initiate judicial proceedings during conciliation until the terms of the undertaking have been complied with. See Model Law, art 13.

14 See for example art 1(2) of the Conciliation Rules: schedule 3 of the Nigerian Arbitration and Conciliation Act, cap 19 LFN 1990, cap 18 LFN 2004 (Conciliation Rules).

15 See Model Law, art 8 and Conciliation Rules, art 14.

16 See Conciliation Rules, art 6.

17 See for example secs 2, 4, 5, 7, 23, 29(2), 29(3), 30, 31(1), 48 51 and 52 of the Arbitration and Conciliation Act, cap 19 LFN 1990, cap 18 LFN 2004.

18 See chap 1 of Report of the National Committee on the Reform and Harmonization of Arbitration and ADR Laws in Nigeria (2007), available at: <http://www.aluko-oyebode.com/_uploads/publications/amended%20report.pdf> (last accessed 30 November 2011).

19 Attempts by parties to frustrate arbitral awards usually result in litigation which sometimes spans the entire Nigerian judicial system before a decision is reached. This may take 10 to 12 years. See for example Baker Marine Nigerian Ltd v Danos & Curole Marina Inc [2001] 7 NWLR 712. Ibid.

20 See A Limbury “Compulsory ADR reforms before commencing proceedings?” (1998) 1/1 The ADR Bulletin 10 at 11, available at: <http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1003&context=adr> (last accessed 18 November 2011).

21 See Conciliation Rules, art 15(c) and (d).

22 See id, art 17.

23 Above at note 17.

24 Compare with sec 55 of the Act, which restricts the application of the Conciliation Rules to disputes arising from international commercial agreements.

25 Examples include where a dispute between non-contracting parties is caused as result of an accident. Under the Model Law, an agreement to submit a dispute to conciliation can be made after the dispute has arisen; see art 1(8).

26 See sec 38(1) of the Act.

27 Id, sec 38(2).

28 Id, sec 39.

29 Id, sec 40.

30 Id, sec 40(a).

31 Id, sec 40(b).

32 This characteristic limits judicial intervention in conciliation proceedings and reinforces the consensus of the parties. According to Ezejiofor: “A possible explanation for this is that the authors of the Act figured that parties are unlikely to disagree on the appointment of a conciliator as conciliation efforts would not get off the ground if both parties have no equal desire to conciliate.” See Ezejiofor The Law of Arbitration in Nigeria, above at note 8 at 131.

33 Ibid.

Ibid

34 See sec 41(1) of the Act.

35 Id, sec 41(2).

36 Id, sec 42(1).

37 Id, sec 42(2).

38 Id, sec 42(3)(a).

39 Id, sec 42(3)(b).

40 Id, sec 42(4).

41 See Model Law, art 4, note 4.

42 See id, art 13 which provides: “Where the parties have agreed to conciliate and have expressly undertaken not to initiate during a specified period of time or until a specified event has occurred arbitral or judicial proceedings with respect to an existing or future dispute, such an undertaking shall be given effect by the arbitral tribunal or the court until the terms of the undertaking have been complied with, except to the extent necessary for a party, in its opinion, to preserve its rights. Initiation of such proceedings is not of itself to be regarded as a waiver of the agreement to conciliate or as a termination of the conciliation proceedings.”

43 Id, art 11.

44 Id, art 12.

45 See id, art 1(3).

46 See id, art 5(5) which provides: “When a person is approached in connection with his or her possible appointment as conciliator, he or she shall disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. A conciliator, from the time of his or her appointment and throughout the conciliation proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him or her.”

47 Id, art 8 provides that, where the conciliator receives information concerning the dispute from a party, the conciliator may disclose the substance of that information to any other party to the conciliation. However, where a party gives any information to the conciliator, subject to a specific condition that such information should be kept confidential, then that information shall not be disclosed to any other party to the conciliation.

48 Id, art 9 provides: “Unless otherwise agreed by the parties, all information relating to the conciliation proceedings shall be kept confidential, except where disclosure is required under the law or for the purposes of implementation or enforcement of a settlement agreement.”

49 The admission of evidence obtained during conciliation in other proceedings is precluded under art 10(1), (2), (3) and (4) of the Model Law. However, this does not imply that evidence that is ordinarily admissible in judicial proceedings will become inadmissible as a consequence of its usage in a conciliation proceeding; see id, art 10(5).

50 Under art 14 of the Model Law, where parties to conciliation proceedings conclude an agreement settling a dispute, that settlement agreement shall be binding and enforceable.

51 According to art 1(1), note 3 of the Model Law: “The term ‘commercial’ should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business cooperation; carriage of goods or passengers by air, sea, rail or road.”

52 See id, art 1(4).

53 See note 14 above.

54 See Ezejiofor The Law of Arbitration in Nigeria, above at note 8 at 131.

55 See Conciliation Rules, art 1(3).

56 Id, art 1(1).

57 Id, art 1(2).

58 Id, art 2(1).

59 Id, art 2(2).

60 Id, art 2(4).

61 Id, art 3.

62 Id, art 4(1)(a).

63 Id, art 4(1)(b).

64 Id, art 4(1)(c).

65 Id, art 4(2).

66 Ibid.

Ibid

67 Id, art 5(1).

68 Id, art 5(2).

69 Ibid.

Ibid

70 Id, art 6.

71 Id, art 8.

72 Id, art 9.

73 Id, art 10.

74 Id, art 9(2).

75 Id, art 7(1).

76 Id, art 11.

77 Id, art 7(4).

78 Id, art 12.

79 Id, art 13(1).

80 Id, art 13(2).

81 Id, art 13(3).

82 Id, art 14.

83 Id, art 18(1).

84 Id, art 18(2).

85 Id, art 18(3).

86 Id, art 18(4).

87 Id, art 15(a).

88 Id, art 15(b).

89 Id, art 15(c).

90 Id, art 15(d).

91 Id, art 17(1).

92 Ibid.

Ibid

93 Id, art 16.

94 Id, art 19.

95 Id, art 20.

96 See Report of the National Committee, above at note 18.

97 Available at: <http://www.aluko-oyebode.com/publications/further_amended_draft_faca.asp> (last accessed 20 September 2011).

98 See sec 62 (2) of the Draft Bill which adopts art 1(3) of the Model Law.

99 See id, sec 68 which adopts art 5(5) of the Model Law.

100 See id, sec 69 which adopts art 8 of the Model Law.

101 See id, sec 70 which adopts art 9 of the Model Law.

102 See id, sec 71 which adopts art 10 of the Model Law.

103 See id, sec 73 which adopts art 12 of the Model Law.

104 See id, sec 74 which adopts art 14 of the Model Law.

105 See id, sec 76.

106 Ibid.

Ibid

107 See id, sec 72.

108 Id, sec 72(1).

109 Id, sec 72(2).

110 Id, sec 72(3).

111 Id, sec 72(5).

112 See Model Law, art 13.

113 See id, art 11 (b), (c) and (d).

114 See section above on “Issues not covered by the Act”.

115 Conciliation Rules, art 16. See section above on “Resort to arbitral or judicial proceedings”.

116 See Murmansk State Steamship Line v Kano Oil Miller Ltd [1974] 1 ALL NLR (pt 11) 409 at 409–10; Solomon v African Steamship Co 9 NLR 99 at 643, para A; and Sander v Kukawa Local Government [1991] 2 NWLR (pt 174) 379 at 659, para A.

117 [1994] 5 NWLR (pt 347) 649.

118 Id at 660, paras D–G.

119 [1990] 5 NWLR (pt 150) 322 CA at 337–38.

120 Under the Conciliation Rules, a mere admission of liability by a defendant will not suffice to prevent the statutes of limitation from running; see art 20(b): “The parties undertake not to rely on or introduce as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is the subject of the conciliation proceedings: … admissions made by the other party in the course of a conciliation proceedings.”

121 See Model Law, art 13.

122 See Epie, C “Alternative dispute resolution skills: Understanding the problem solving (win/win) approach in negotiations” in Nwosu, K (ed) Legal Practice Skills & Ethics in Nigeria (2004, DCON Consulting) 439 at 445–46Google Scholar.

123 See <http://www.fmcs.gov/> (last accessed 20 September 2011).

124 Ibid.

Ibid

126 The multi-door court house proposes a comprehensive dispute centre that provides disputants with mechanisms for dispute resolution. In Nigeria, multi-door court house services are provided by the Lagos and Abuja multi-door court houses. See: <http://www.amdcng.com/Contact_Amdc.aspx> (last accessed 6 December 2011).

127 For example, in the United States, there is a Code of Conduct for Labour Mediators. The code sets out the professional duties of conciliators and its principles apply to all professional conciliators employed by city, state or federal government agencies. Its principles also apply to conciliators retained by individual parties. See Code of Professional Conduct for Labor Mediators (Center for the Study of Ethics in the Professions), available at: <http://ethics.iit.edu/indexOfCodes-2.php?key=12_530_493> (last accessed 18 November 2011).

128 The idea of reconciliation is encouraged by most religious teachings. For example in Christianity, The Holy Bible declares: “If you are offering your gift at the altar, and there you remember that your brother has something against you, leave your gift at the altar and go first and be reconciled to your brother, and then come and offer your gift. Make friends quickly with your accuser, while you are going with him to court, lest your accuser hand you over to the Judge and the Judge to the guard and you will never get out till you have paid the last penny”: Matthew, chap 5: 23–26, The Holy Bible (Revised Standard Version, British and Foreign Bible Society) at 785.

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