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| Credit – www.ledapnigeria.org |
Introduction:
The official inauguration of the National Industrial Court of Nigeria (NICN)’s
Alternative Dispute Resolution (ADR) Centre Instrument & Rules 2015 on 18th
December 2015 marks a significant milestone towards the discharge of the
mandate of the Court, as the specialized federal superior court of record with
exclusive jurisdiction on industrial, employment and labour related disputes in
Nigeria. The inauguration ceremony which attracted major stakeholders held at
the Shehu Musa Yar’Adua Centre Abuja, under the distinguished chairmanship of
the Chief Justice of Nigeria (CJN), Hon, Justice Mahmud Mohammed, GCON.
In a well articulated speech, the President of the Court, Hon. Justice B.A
Adejumo, OFR encapsulated the essence of the ADR Centre, when he stated:
“It gives me immense pleasure to inform you that the
mandate of the court to ensure labour and industrial peace and harmony by
virtue of its jurisdiction in section 254C of the 1999 Constitution (as
amended) could not be more bolstered than by the establishment of the Court’s
ADR Centre. One pivotal aim of the establishment is to assist parties in
dispute to collaborate towards settling their disputes and arriving at win-win
or mutually acceptable agreement in less costly, speedy and efficient manner.
This is calculated at preserving industrial peace and harmony, which in effect
promote economic development and cohesive interpersonal rapport and conducive
work environment within the dynamics of employer/employee relationships…”
The
nature of industrial relations and labour/employment-related disputes tends to
favour adoption of ADR to deal with some aspects of the disputes that may not
lend to rigorous procedure and somewhat distasteful outcome in litigation.
Maintaining rules of engagement and resolution of disputes in a prompt and
effective manner that would keep the labour-management relationship in check
and amicable is imperative, to avoid adverse consequential effect on the
parties and the overall growth of the economy. Bearing in mind amicable
resolution as the cardinal policy of resolution of industrial and labour
–related dispute, Alternative Dispute Resolution (ADR), particularly
non-adjudicatory model, like Mediation and Conciliation, are most suitable
methods of resolution of some aspects of industrial relations/employment
related disputes. Mediation as an ADR model, particularly projects itself as a
preferred method, as it saves time, preserves relationship even in disputing
time, and maintains confidentiality for privacy and preservation of trade
secrets, lends to flexible technical procedure resulting in win-win outcome and
psychological satisfaction, by adopting consensual and adequate party
participatory process.
It
is therefore the sole aim of this discourse to bring to bear an overview of the
Instrument & Rules of the Court’s ADR Centre which, as the President of the
Court pointed, is set up to enhance the Court’s mission of “an efficient,
timely and just system of justice delivery”, that would “ensure that employment,
labour and industrial relations and workplace related disputes are resolved in
time while maintaining cordial and peaceful working relationship between
parties”.
Evolution and Rise of Court –Connected ADR Centre:
Over time, the debilitating shortfalls of litigation, exemplified in protracted
delays with attendant costs, strained relationship, unpredictable and
unpalatable outcome of judgment without justice, etc, exposed its unsuitability
to the needs of disputants and overall justice administration system. The
consequent vigorous interrogation of the suitability of litigation as an
exclusive formal dispute resolution model, resulted in some alternative
options-the Alternative Dispute Resolution(ADR), among which are: Arbitration,
Conciliation, Negotiation, Mediation, Early Neutral Evaluation and other hybrid
processes.
ADR
which evolved from private initiative in informal dispute resolution setting
has now been integrated into formal dispute resolution system even as a
supplement to litigation, otherwise, known as Court-Connected ADR Centre,
exemplified in the Multi-Door Court House (MDCH) system. The MDCH system is a
Court-Connected ADR process aimed at granting multiple access to justice
through making available various models of dispute resolution to disputants, to
assuage their crave for quality and timely justice. The MDCH system was ably
pioneered and institutionalized by the Lagos State Judiciary pursuant to the
Lagos State Multi-Door Court House (LMDCH) Law 2007- Law No.21 (Vol.40.No.56,
Lagos State Official Gazette of 3rd August 2007).
Interestingly,
less than a decade of infusion of MDCH in the legal system, the model has been
amply replicated at the Federal Capital Territory and many other States in
Nigeria. The sporadic rise of the Court-Connected ADR Resolution mechanism is a
product of bold initiative to integrate a hitherto private process of ADR into
the mainstream of formal judicial setting. The integration of ADR mechanism in
formal legal system of dispute resolution in court setting now provides
disputants with a dossier of supplement to litigation, as classical court room
process available in litigation no longer satisfies the yearnings for desirable
fair and efficient justice delivery and administration system. A typical MDCH
system has the following ADR processes- Arbitration, Mediation, Conciliation,
Early Neutral Evaluation and other Hybrid Processes integrated with litigation
processes under direct supervision of designated Judges, classified as ADR
Judges. Matters are initiated through – Court Referral, Walk-in and Direct
Intervention.
Essential Features of the NICN ADR Centre:
Given
the tortuous journey the National Industrial Court of Nigeria (NICN) has
undertaken through its committed and visionary leadership, to be repositioned as
a prominent superior Court of record expressly listed in the Constitution by
virtue of S.254C of the 1999 Constitution (3rd Alteration) 2010, the Court was
poised to set up a formidable unique ADR Centre, improving on researched
assessment of the operation of the existing Multi-Door Court House (MDCH)
system. Essentially, the ADR Centre established by the NICN has unique features
which differ markedly from the regular MDCH system operating in the High Courts
of various States in Nigeria and the Federal Capital Territory.
The
NICN ADR Centre Instrument & Rules 2015 are twin documents which provide
the legal framework for the establishment and operation of the ADR Centre. By
S.254C (3) of the Constitution of Federal Republic of Nigeria 1999 (as
amended), the NICN ADR Centre is the first and only Court-Connected ADR Centre
which was established pursuant to the Constitution. It also derive its root
statutorily from the combined provisions of Ss.1 (2) (a) and 20 of the National
Industrial Court Act (NICA) 2006, which empower the President of the Court, to
administer the Court and also encourage the promotion and use of ADR in the
Court.
The
NICN ADR Centre is well structured with separately designated Staff and
Management, but who are also part of the integral Staff and Management of the
Court. The Staff hierarchy headed by the Director of the Centre (equivalent of
Deputy Chief Registrar) is also streamlined with that of the Court’s regular
Staff Cadre. In fact, the qualified Staff of the Centre sits as ADR Officers to
complement qualified external consultants sitting as Neutrals in the
Mediation/Conciliation panel. Its funding is guaranteed as part of the Court’s
budget.
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| Credit – ofcounselnigeria.org |
The
Centre has clear cut mandate set out in Art.4 (1) of the Instrument: To enhance
and facilitate quick, efficient and equitable resolution of certain employment,
labour and industrial relations disputes within the jurisdiction of the Court;
to minimize, reduce, mitigate and eliminate stress, cost and delays in justice
delivery by providing a standard ADR framework for fair, efficient, fast and
amicable settlement of disputes; and to assist disputants in the resolution of
their disputes without acrimony or bitterness.
Unlike the MDCH system, there are laid down objective criteria expressly set
out to guide the screening matters to qualify for the ADR. By virtue of Art 4
(4)(c )(5) of the Instrument, for a matter to qualify, the matter must first
fall within the jurisdiction of the Court. Such matter shall not be on
interpretation or challenge of the jurisdiction of the Court and the substance
can be on monetary claims. Criminal cases are entirely excluded. The guide as
to matters that can qualify on the basis of the jurisdiction of the Court is
spelt out in Art.4(5) of the Instrument, which adopted the some specific
matters the Court exercise exclusive jurisdiction on , as stated in
S.254C(1)(a),(c),(g)(k) of the 1999 Constitution (as amended) and S.7(1)(a) and
(b) of the NIC Act 2006, all relating to employment, labour, industrial
relations and environment and condition of work, health, safety and welfare of
labour, and related matters.
The
Centre does not accept Walk-In matters by persons who do not have their case
formally filed in the Court. This makes the Centre truly Court-Connected ADR
Centre. By the combined effects of Art.4(4)(a)-(c) of the Instrument and Or.3
R.2 of the Rules, matters can only be initiated in the Centre through – the
parties or referral by the discretion of the President of the Court or Judge
handling the matter. Either of the parties in a dispute can upon filing the
action in the Court apply to the President of the Court for the action to be
resolved through the ADR. Both parties can upon joining issues in the action
mutually opt to use the ADR process, in which case the Judge of the Court
seized of the matter shall refer the matter to the Centre. By Art 4(6) (c) of
the Instrument, even a single issue can be referred without the entire matter,
thereby encouraging frankly resolution of dispute in bifurcated proceedings in
the Court and the Centre.
Another
interesting feature of the NICN ADR Centre is that the ADR Process available in
the Centre is limited to Mediation and Conciliation. Thus, Arbitration is not
utilized in the Centre. This may perhaps be, to give clear way for the use of
Arbitration in the Industrial Arbitration Panel (IAP), which Award is now
enforceable or challenged in the NICN, courtesy of the enlarged and streamlined
powers of the Court under the new Constitution.
Since quick resolution of dispute is a great attraction of ADR, conscious
effort was made in the NICN ADR Centre Instrument & Rules to expressly
provide for effective utilization of time in resolution of dispute referred to
the Centre. By Art. 4(26) of the Instrument and Or.3 R.7 of the Rules, the duration
of proceedings in the Centre is 21 days which can be extended by additional 10
days upon a request by the Director of the Centre made within 5 days before the
expiration of the 21 days to the President of the Court, who can approve the
extension.Or.3 R.8 of the Rules limited request for adjournment by a party to 2
times. By Or.3 R.2 of the Rules, the President or a Judge can refer a matter
after all interim or interlocutory applications on such matter have been heard
by the Court. And by Or.3 R.4 of the Rules, no interlocutory application is
entertained in court in respect of the referred matter until the ADR process is
concluded. These are indeed, proactive measures put in place to avoid
distraction and to keep the process in focus towards amicable resolution of
dispute referred to the Centre.
Confidentiality
is the hallmark of the mediation process, which is the key driver of the
Centre’s ADR process. Adequate provisions exist also to ensure confidentiality
of the process. No communication of the proceedings is made public. It is only
successful proceedings which have been entered as Judgment of the Court that
can be made available by the Court to the public, perhaps, through law
reporting, for development of the jurisprudence of the process. Adequate provisions
were made to guard against breach of confidentiality and conflict of interest
in Art. 4(33-(37) and Art. 9(4) of the Instrument. A very unique provision
which is at the heart of ensuring confidentiality of the mediation process is
Art. 4(27)(b) of the Instrument dealing with content of Report of unresolved
matter( failed mediation) which expressly excluded the Record of Proceedings of
the ADR session from the memorandum which the Director shall submit to the
President of the Court or the Judge that referred the matter to the Centre.
With this rule, the Court hearing a failed ADR case would be open-minded and
would not be biased at the trial against the party perceived to be responsible
for the failed ADR. The parties would also be less aggressive at the trial in
Court, being sure that the records of disclosures of their underlying interests
in the dispute are privileged. Many of the regular Multi-Door Court House
system did not make adequate precaution against confidentiality challenge
arising from failed mediation process. At the MDCH, if resolution fails, the
Case Manager issues report with details of what happened at the ADR attempt and
sends the file to court with a hearing notice issued to the parties. The report
is often biased as it tends to indicate who was responsible for the failed
resolution based on the assessment of the person writing the report. This
attitude which impinges on confidentiality of the process is one of the
challenges currently affecting the efficacy of resolution of dispute at the
MDCH.
Art.4
(29); 4(10),(31) and(32); Art.6(1)-(9) and Art.5(1)-(2) of the Instrument
carefully spelt out the role of the Court, the ADR Officers /Neutrals, the
Parties as well as Counsel in the ADR process. The Court only play supportive
role in referral and entering the Terms of Settlement as Judgment of the Court.
ADR Officers are barred from imposing any decision/opinion or taking any
judicial action/pronouncement, but are limited to facilitate the resolution of
the dispute using Mediation/Conciliation according to the laid down procedural
steps set out in Or.4 R.(1)-(21) of the Rules. The parties are enjoined to
cooperate and participate actively towards amicable resolution of their
disputes in a win-win outcome. Parties have their liberty to settle or not to
settle their dispute but they must appear at the Centre. Counsel are enjoined
to bear in mind the overriding objective of use of ADR in dispute resolution at
the Centre, and as such should encourage and allow their Client parties to participate
actively in mediation or conciliation process , while serving as advocates of
their Client’s interest in the proceedings. Although Counsel is to execute the
agreement reached, but by Art.6 (8) of the Instrument, a Counsel’s signature
can be dispensed with in a situation where an amicable settlement agreement has
been reached and a term of settlement drawn through mediation or conciliation
process but any of the counsel to the parties refused to execute the agreement,
such party is at liberty to execute the terms of settlement on his /her or its
own.
The
NICN ADR Centre Instrument & Rules provides for another unique feature in
being the first ADR instrument to address the significant issue of Counsel’s
Fess. Overtime, one of the perceived grounds for reluctance of Counsel to
embrace ADR is the fear that ADR represents.
Acute Drop in Revenue, as Counsel are often victims of antics of Client’s
belief that lawyers are not entitled to considerable fees without involving in
protracted litigation. Art.7 recognizes the Counsel’s entitlement to his/her
fees in matters settled at the ADR Centre. It provides: “Notwithstanding
anything to the contrary contained in this Instrument, the referral of a matter
from the Court to the Centre shall be without prejudice to the payment of any
professional fees agreed upon between the parties and their respective
Counsel”. Counsel can always take advantage of this provision to strengthen the
Agreement for Professional Fees by incorporating it as a Clause in the Terms of
Settlement, which is binding on the parties pursuant to Art.5 (30) of the
Instrument and enforced also as a Judgment of the Court.
Conclusion:
A concerted effort has been exerted in bringing to bear the innovative
provisions of the National Industrial Court of Nigeria(NICN)’s Alternative
Dispute Resolution (ADR) Centre Instrument & Rules 2015, which sets out the
legal framework for establishment and operation of the NICN ADR Centre
operating in six Judicial Divisions in States located in six geo-political zones
of Nigeria. The unique features of the provisions of the Instrument& Rules
have been highlighted to showcase the Centre as different from the regular
Multi-Door Court House (MDCH) system, pioneered by the Lagos State Judiciary
and now replicated in the High Court of the Federal Capital Territory (FCT)
Abuja, as well as several States High Courts in Nigeria.
There
is no doubt that with the timely inauguration and overt support of the
leadership of the Court, the NICN ADR Centre is well positioned to discharge the
mandate of the Court in contributing towards ensuring harmonious industrial
relations for the Nation’ socio-economic development and growth.
Ed’s Note: This article was originally published here
