Procedure

Counsel and witnesses

Are the parties typically represented by lawyers in commercial mediation? Are fact- and expert witnesses commonly used?

Parties are typically represented or at least, supported by lawyers in commercial mediation. In mediation proceedings in Nigeria, particularly within the mediation institutions, lawyers are accepted and even expected to be a part, albeit less significantly, of the mediation proceedings. This is particularly so for referral cases in the LMDC where the parties would already have legal representatives in the litigious dispute. The only requirement to be observed with respect to representatives is that where any party does not intend to participate in the proceedings themselves, their representatives must provide a letter of authority or power of attorney to the institution, signed by the party permitting the representative to execute binding settlement agreements on their behalf. Party representatives, particularly legal representatives, are enjoined under Nigerian law to encourage ADR and amicable settlement (including mediation) among clients.

Independent experts and witnesses are also recognised and accepted in mediation proceedings when they are needed. It is important to note that the rules of confidentiality applicable to mediators and the parties to a dispute are also binding on any representatives, experts or witnesses in the proceedings.

Procedural rules

Are there rules governing the mediation procedure? If not, what is the typical procedure before and during the hearing?

There are generally no rules governing the mediation procedure. However, most mediation proceedings in Nigeria involve the following procedures.

Pre-mediation sessions

Prior to the start of the mediation sessions, the mediator usually engages in pre-mediation sessions with the parties and their representatives. These sessions are to enable the mediator to determine and understand the basic issues in the dispute. They also give the mediator an opportunity to determine the structure of the mediation process that would be most suitable for the parties. Additionally, at this meeting, the mediator, the parties and their representatives enter into a mediation agreement, which specifies the terms that will govern the mediation proceedings.

The opening session

This is the first main joint session between the mediator and the parties to the dispute. At this stage, the mediator will explain the mediation process, his or her role as a mediator, etc. Resolution of relationships may also be attempted in this session before the proper mediation on the issues in dispute begins. The issues in dispute will also be identified and characterised and the parties’ priorities will be determined.

Private caucusing

Private caucusing is a recognised step in mediation proceedings in Nigeria. It provides an opportunity for parties to provide important information that they ordinarily would not have provided to the mediator in the presence of the other parties. Private caucusing usually occurs after the first joint session at the opening phase. However, it can occur several times and at any time in the course of the proceedings.

Joint sessions

At these sessions, the parties attempt to come to a resolution or settlement on the issues in dispute with the guidance and encouragement of the mediator.

Closure

Where the parties reach a settlement on some or all of the issues in dispute, they will agree on terms and this will be incorporated in a settlement agreement or memorandum of understanding executed by the parties (or their authorised representatives).

Tolling effect on limitation periods

Does commencement of mediation interrupt the limitation period for a court or arbitration claim?

Although mediation is greatly encouraged within the Nigerian legal landscape, it does not prevent or stop the period of limitation stipulated by statute from running. It is thus the practice that where one stands the risk of running out of time, the proper approach is to institute an action in court and apply for an adjournment to enable mediation take place, where the parties are in agreement.

Enforceability of mediation clauses

Is a dispute resolution clause providing for mediation enforceable? What is the legal basis for enforceability?

A dispute resolution clause providing for mediation is enforceable under Nigerian law. This is based on the settled principle of Nigerian law that parties are bound by the terms of their contract and are not encouraged to act outside these terms.

Confidentiality of proceedings

Are mediation proceedings strictly private and confidential?

Mediation proceedings are private and confidential. These conditions are provided for in the rules of the various mediation institutions and in the mediation agreement. There is a duty of confidentiality on the part of the mediator, the parties and all representatives, witnesses or other participants of the proceedings, and the confidentiality duty is permanent. The proceedings and any other documents or information used in or arising from them are confidential and without prejudice.

The above notwithstanding, there are some exceptions to the duty of confidentiality. Primarily, disclosures may be made with the consent of all the parties to the dispute. Documents provided for or arising from mediation may be disclosed if they would ordinarily have been available for discovery in arbitration or litigation proceedings. Information may also be disclosed to the extent that it is necessary to enforce any settlement agreement reached in court. Under the Citizens Mediation Centre Law, information from mediation proceedings at the Citizens Mediation Centre can also be disclosed where it is necessary to enable any person to perform its legal duties. Any criminal offences disclosed during the proceedings are also not subject to the confidentiality protection.

Success rate

What is the likelihood of a commercial mediation being successful?

Although there is no empirical data on this point, it is generally acknowleged that some civil claims, particularly intellectual property claims or low-value claims, often end in settlement as a result of mediation in Nigeria.