Online Mediation as a Tool for Dispute Resolution in Nigeria

INTRODUCTION

Disputes are an ineluctable part of human interaction, likely to arise from economic, social or physical transactions. In order to resolve this conflict in a manner that would adequately propagate peace led to the Alternative Dispute Resolution initiative.

With the rise in technological utilisation and the COVID-19 pandemic, Online Mediation is becoming a preferable mode of dispute resolution in that it offers a fast and effective avenue to resolution of disputes to be executed in lieu of the traditional mode of dispute resolution.

Mediation, as a form of Alternative Dispute Resolution, is a flexible process conducted confidentially in which a neutral third party called the ‘Mediator’ actively assists parties in working towards a negotiated agreement of a dispute, with the parties’ ultimate control of the decision to settle and the terms of resolution.

The Concept of Mediation

Mediation is defined in Section 91 of the Arbitration and Mediation Act 2023 as a process where parties request a third party (known as the Mediator) to assist them in an attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or legal relationship, but the Mediator does not have the authority to impose upon the parties, a solution to the dispute.

It is a form of Alternative Dispute Resolution wherein the parties meet with a mutually selected impartial and neutral person who assists them in the negotiation of their differences.[1] It differs from Arbitration in that it leaves the decision power completely and totally in the hands of the parties. The Mediator does not act as a judge or umpire, but rather assumes the role of a catalyst between opposing parties attempting to bring them together by clearly defining issues and eliminating obstacles to communication, while moderating and guiding the process to avoid confrontation and ill will.

It is pertinent when discussing Online Mediation to expound on the concept of Online Dispute Resolution. Online Dispute Resolution is a form of Dispute Resolution where parties to the dispute communicate virtually to resolve their dispute by taking advantage of technological advancements.

The major difference between Online Dispute Resolution and Online Alternative Dispute Resolution (OADR) is that while the former is a broad term that encompasses many forms of ADR and court processes that incorporate the use of internet, websites, email communications, streaming media and other information technology as part of the dispute resolution process;[2] the latter is restricted to the Alternative Dispute Resolution process other than Litigation done with the use of internet, email communication and so on, where parties communicate virtually, not physically.[3]

Online Mediation: an Appraisal of Its Application in the Nigerian Legal System

What is Online Mediation?

Online Mediation is a process by which parties, with the help of a Mediator, settle their disputes online, using various forms of technology, without the need for in-person appearances.

In Online Mediation, meetings are conducted by video or tele-conference, and any form of document submission is facilitated through an encrypted, cloud-based platform accessible through the internet.  The parties are not compelled to a judgement or binding settlement handed down by the Mediator.

In Online Mediation, parties can choose the date and time most convenient for them. Parties can attend the meeting without the need for there to be a physical meeting or conference.  Parties are not also confined to difference in time zones in the case of international conferences.

Online mediation can be automated through a dispute resolution system with computer-prompted information gathering, decision making based on disputants’ inputs, and with no form of interference from third parties. However, according to Jennifer Parlamis, Noam Ebner and Lorainne Mitchell,  it is more likely to involve the “delivery of personalized, individual, as-close-to-traditional-as-possible mediation at a distance.”[4]

Online Mediation originally relied on text-based communications, such as email. However with the improvement in ICT and the evolution of such platforms as videoconferencing services such as Skype, Zoom, and Google Hangouts, parties can now communicate easily with one another in real time.

Brief History of Online Dispute Resolution and Online Mediation

In recent years, Online Dispute Resolution has become a preferable option in the resolution of disputes, and online mediation has become increasingly utilized. By mediating online, parties can avoid lot of the shortcomings of traditional mediation.

The history of Online Dispute Resolution can be traced to the four phases which began in 1990. The first phase (the amateur phase) ran from 1990 – 1996, and was known for testing the development of electronic solutions. The second phase ran from 1997 – 1998 and experienced the development of ODR and establishment of the first commercial web portal that offered services. The third phase (business phase) ran from 1999 – 2000.

It witnessed economic development in IT companies and services that bordered on dispute resolution. The year 2001 marked the beginning of the fourth phase (institutional phase) during which ODR techniques were introduced into institutions such as the courts and administrative authorities.[5]

One of the first cases of Online Dispute Resolution occurred  in the United States of America where the opposing parties made a decision to settle their disputes out of court. The case was pending before the Online Ombuds Office at the Center for Information Technology and Dispute Resolution at the University of Massachusetts. Ethan Katsh and Janet Rifkin, who founded the entity, began mediation procedures via only e-mail communications and this resulted in a settlement being agreed and signed by both parties.[6]

In 1999, the SquareTrade portal,[7] one of the first commercial ODR providers in the area of consumer disputes in the US market began using Online Mediation, which was initiated by filling in a complaint form on which the methods for dispute resolution were indicated. After voluntary acceptance of the electronic method for resolution, the other party would respond by choosing the relevant option.[8] Another example of an early portal that offered automated online mediation is CyberSettle, which was established in the U.S in 1998.[9]

In recent times, various platforms have been utilised for Online Mediation which has made great improvement in Mediation processes globally.

Some of the Platforms for Online Mediation Include

1. Skype

Skype is a proprietary telecommunication application that specializes in providing video chat and voice calls between computers, tablets, mobile devices and smart watches over the internet.

It was created in August of 2003 and by March of 2020 was used by 100 Million people on a monthly basis. It is a good platform for the conduction of Online Mediation proceedings.

Making use of the app’s features, communication could be facilitated between the Mediator and the parties in the proceedings. The hearing could be done virtually in the chat room, and recorded session could be provided to the parties at their request.

2. Zoom

Zoom is an online audio and web conferencing platform used to make phone calls or to participate in video conference meetings. It was founded in 2011 by Eric Yuan, a former Cisco executive.

Zoom is the leading the world in modern enterprise video communications, with an easy, reliable cloud platform for video and audio conferencing, chat, and webinars across mobile, desktop, and room systems.

Zoom offers a lot of products and services to organizations, one of which is Zoom Rooms,[10] video webinars, zoom meetings and even phone system. It is arguably the most efficient platform for Mediation proceedings.

See also: The Legal Framework for Inclusive Education in Nigeria

3. Electronic Mail

Electronic mail (email or e-mail) is a method of exchanging messages (“mail”) between people using electronic devices. Ray Tomlinson invented email in 1971. Email servers accept, forward, deliver, and store messages. Neither the users nor their computers are required to be online simultaneously; they however, need to connect typically to a mail server or a webmail interface to send or receive messages or download it.

Using the email, documents and information could be exchanged between the parties as a means of communication. In the case of g-mail, the Google Meet room could be used to hold mediation proceedings. However, unlike Zoom and Skype, prerecorded sessions cannot be done, and there is no provision for private discussions between parties and their representatives.

Role of the Mediator in a Mediation Proceeding

Mediation gives the power of decision making to all parties. The Mediator, himself, does not decide what is right. He is merely a neutral third party attempting to bring all parties together to resolve disputes by defining issues and eliminating communication barriers.

It is important to state that some matters cannot be resolved by Alternative Dispute Resolution process.. Criminal matters, tax matters and so on which are not arbitrable cannot also be resolved via Mediation. However, in some international jurisdictions like USA and UK, some mild criminal cases, such as harassment and discrimination, can be resolved through Mediation.[11]

The Mediator uses his expertise to clarify the issues and assess the strengths and weaknesses of each party’s case. He also offers innovative approaches and creative solutions, while maintaining an unbiased and impartial perspective. Some of the duties of a Mediator include:

• To conduct a mediation in a fair and unbiased manner;
• To decline or withdraw from a mediation if the mediator cannot remain impartial;
• To avoid a conflict of interest or an appearance of a conflict of interest during and after a mediation;
• To make reasonable inquiries to determine any potential conflicts;
• To maintain the confidentiality of parties in a mediation.

According to a study, Mediators have observed that the online environment has enabled participation by party decision-makers and have identified various changes in their mediation procedures.[12] Respondents observe that they use more private sessions (41%) or more joint sessions (18%) than they do in person.

Mediators have likewise been using asynchronous proceedings, meetings without all participants present at the same time, more often online than they do in person (30%). Some have seen increases in co-mediation (5%) and participation by experts (8%).[13]

Benefits of Online Mediation

1. Efficiency

Online mediation is more efficient than traditional mediation and litigation. The parties to the disputes do not have to travel, or leave the comfort of their homes to participate in the proceedings.

By holding mediations virtually, parties and Mediators alike are able to save money on travel expenses such as gas, parking, flights, and accommodations. Online platform provides a serene and focused environment for getting best results by establishing tighter deadlines for settlement.

Thus, not only is it efficient, it saves time as well. It is also convenient and cost-effective in that parties do not have to expend money other than for internet connection in getting their desired results.

2. Impartiality and Transparency

In Online Mediation, parties are free to be more candid and straightforward with their settlement offers. Online mediation does not have the same reputation for posturing, i.e. parties do not have time to sit around and offer unrealistic numbers.

Technology creates the opportunity to use innovative tools such as blind negotiating that would not be possible in a traditional Mediation. By encouraging parties to be honest and not waste their time posturing, online mediation gets desired results. Mediation encourages settlements without harming relations. It looks for win-win measures, where all disputants are pleased by the result.

3. Security And Privacy

Virtual platforms for Mediation are secure. This ensures the parties confidentiality in the process. It permits end-to-end encryption which secures parties’ communication with cryptographic keys that are only known to the parties themselves.[14] The implication of this is that third parties are not privy to the information shared in the meeting.

In Zoom platform, there is a feature which enables parties to meet with their attorneys or representatives in private meeting rooms without the other party knowing of the information or discussion shared between them. This goes to further strengthen the security of the platform and the confidentiality of the proceedings.

4. Access to New Opportunities

According to Barry Ross, a Mediator, “As a result of COVID-19 and the expansion of virtual meeting platforms, previous constraints on travel and physical closeness have been dissolved. The former arbitrary borders and limited paradigms of human interaction no longer exist. These new circumstances have ushered in an era of remote meeting with mediations being conducted from anywhere in the world.

But with new paradigms comes a demand for new skills to be developed. So, while the means of human interface has changed, the quality of communication must remain as effective and as clear as in any in-person mediation.”[15]

Thus, the remoteness of Mediation currently has opens a door of new opportunities and possibilities in the Mediation field, and gives Mediators the potential to expand and broaden their horizons on the area of ADR that is Mediation. Mediators can also expand their practises to a much wider area to reach a much larger audience. Thus also gives parties a larger pool of Mediators to choose from as they are no longer restricted to appointing Mediators within their locality or state.

5. Increased Productivity

According to an interview held by Mediation Centre of Los Angeles, 27% of Mediators stated that they also found themselves being more productive by working on other cases in breaks, and when the parties’ attorneys meet privately with their clients.[16]

Clients and Mediators alike have all found that Online Mediation has provided an opportunity to execute more work in the natural breaks of the mediation process.

With Online Mediation, parties are able to simultaneously work on material unrelated to the mediation case when the mediator meets privately with the opposing party or when the Mediation proceeding is one break.[17]

Parties should be careful, however, not to lose focus, and it is the duty of the Mediator to draw the attention of the parties back to the proceedings where it is within his knowledge that such is necessary.

Legal Framework Governing Mediation in Nigeria

Under the Arbitration and Conciliation Act (ACA)1988, Mediation was not provided for. However, the ACA has been repealed by the Arbitration and Mediation Act (AMA) 2023. The AMA in Part II (Sections 67 – 87) provides for Mediation in Nigeria. Below are some highlighted sections of AMA which provides for Mediation as a means to shed more light on the legal framework governing Mediation in Nigeria:

Section 67 states that this Part shall apply to both domestic and international mediation, whether commercial or civil as the case may be. Section 67(2) goes further to state the disputes that this Part shall not apply to: dispute emerging from rights or obligations settlement which would be good under Nigerian law, cases that are enforceable as judgement of a Court in the country unless where the parties agree otherwise, etc.

Mediation emphasizes on party autonomy, thus, Section 69 gives the parties the power to exclude or vary any section under this Part with the exception of Section 73(3) which has to do with fair hearing, treatment, and equal opportunity to be heard. Section 70 highlights the procedure for commencement of mediation proceedings, and unless otherwise agreed by the parties, there shall be one Mediator.[18]

Also, all information relating to the mediation proceedings shall be kept strictly confidential unless otherwise agreed by the parties, or disclosure is required by law, for the purpose of preventing the commission of a crime or protecting public order, or so as to implement/enforce a settlement agreement.[19] This emphasizes confidentiality as an integral principle of Mediation.

A Mediator cannot act as an arbitrator in respect of a dispute that is or was the subject of the mediation proceedings unless the parties agree otherwise.[20] Mediators like arbitrators, are also not to be held liable for any act or omission done in discharge or purported discharge of their functions and obligations under this Part, except such action or omission is shown to have been done malafide.[21]

Conclusion

There is truity to the saying that the constant thing in life is change.  Thus, technological changes have affected many areas of life, including dispute resolution and mediation. As Online Mediation continues to evolve, the importance of focusing on the benefits of online mediation only grows.

Online Mediation has come to stay. Thus, countries should adapt to this change by putting in place structures and facilities to make its application and enforceability easier. As the technology and process of Online Mediation develops, it is important that Mediators make the most out of this online process, and Nigeria is urged to do the same.

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[1] Jams Mediation Services. Mediation Defined: What is Mediation? (2022) <https://www.jamsadr.com/mediation-defined/ >Accessed August 23, 2023.

[2] American Bar Association Task Force on E-Commerce and ADR.

[3] Christabel Ifezie. An Appraisal of Online Dispute Resolution and Alternative Dispute Resolution. (2022) < https://guardian.ng/issue/an-appraisal-of-alternative-dispute-resolution-and-online-dispute-resolution/ > Accessed August 23, 2023.

[4] J. Parlamis, N. Ebner & L. Mitchell. Look to Leap Forward: The Potential of E-Mediation at Work. (2017) < https://dspace2.creighton.edu/xmlui/handle/10504/110274?show=full > Accessed August 23, 2023.

[5] Hon. J. D. Peters. Introduction to Online Dispute Resolution (ODR) in Nigeria. (2021) < https://nji.gov.ng/wp-content/uploads/2021/12/INTRODUCTION-TO-ONLINE-DISPUTE-RESOLUTION-IN-NIGERIA-BY-HON.-JUSTICE-DELE-PETERS.docx

[6] ibid

[7] SquareTrade’s ODR service takes place entirely on the website. There are two phases of ODR: Direct Negotiation and Mediation. Direct Negotiation offers the two parties an opportunity to resolve the problem on their own. If that doesn’t work, they can request the service of a professionally trained SquareTrade Mediator. Available at https://www.squaretrade.com/merchant/pop/fees_effective_odr.html > Accessed August 23, 2023.

[8] Karolina Mania. Online dispute resolution: The future of justice. (2015) ICJ vol. 1, iss. 1 p.76-86. < https://www.sciencedirect.com/science/article/pii/S2351667415000074 > Accessed August 23, 2023. Another example of an early portal that offered automated online mediation is CyberSettle, which was established in the U.S in 1998.

[9] Hon. J. D. Peters. Introduction to Online Dispute Resolution (ODR) in Nigeria. (2021) < https://nji.gov.ng/wp-content/uploads/2021/12/INTRODUCTION-TO-ONLINE-DISPUTE-RESOLUTION-IN-NIGERIA-BY-HON.-JUSTICE-DELE-PETERS.docx > Accessed August 23, 2023.

[10] They are conference rooms running, and include dedicated software to make conferencing easier.

[11] Felicia Farber . Mediating Sexual Harassment and Discrimination Disputes (2020). < https://www.njcu.edu/doc/mediating-sexual-harassment-discrimination-disputes#:~:text=Mediation%20is%20an%20ideal%20early,and%20outlet%20for%20their%20emotions. > Accessed August 23, 2023. See also Rapid Ruling. Online Mediation. (2022) < https://rapidruling.com/online-mediation/ > Accessed August 23, 2023.

[12] James Claxton. Mediators like Online Mediation and other Verifiable Facts. (2021) < https://mediationblog.kluwerarbitration.com/2021/05/17/mediators-like-online-mediation-and-other-verifiable-facts/#:~:text=Most%20respondents%20say%20that%20they,report%20that%20fewer%20settle%20online.&text=The%20results%20of%20the%20survey,person%20based%20on%20settlement%20rates > Accessed August 23, 2023.

[13] Ibid.

[14] Umang Yadav. (2021) Advantages of Online Dispute Resolution (ODR) < https://viamediationcentre.org/readnews/NDg4/ADVANTAGES-OF-Online-Dispute-Resolution-ODR > Accessed August 23, 2023.

[15] Jared Lee & Andressa Bortolin. The Benefits of Online Mediation. (2020) < https://www.mediationla.org/the-benefits-of-online-mediation/#:~:text=There%20were%20numerous%20benefits%20of,increased%20productivity%2C%20and%20emotional%20benefits. > Accessed August 23, 2023.

[16] ibid

[17] Ibid.

[18] AMA 2023, s. 71(1).

[19] AMA 2023, s. 76.

[20] AMA 2023, s. 79.

[21] AMA 2023, s. 81.

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