Is there a professional body for mediators, and is it necessary to be accredited to describe oneself as a ‘mediator’? What are the key requirements to gain accreditation? Is continuing professional development compulsory, and what requirements are laid down?
There are a number of professional bodies for mediators in Nigeria. These include the LCA and the Institute of Chartered Mediators. The LCA is an independent international centre for the resolution of disputes, particularly commercial disputes. Although it has its main focus on the resolution of disputes using arbitration, it also has a mediation centre for resolution of disputes through mediation.
Further, a number of mediation institutions, such as the LMDC, require that before a person (outside the panel of neutrals discussed at question 11) can be appointed as a mediator, such a person must have considerable relevant experience in their particular field of ADR practice and have been trained and duly certified by a reputable and recognised organisation such as the Negotiation and Conflict Management Group, Society of Professionals in Dispute Resolution, and the Centre for Effective Dispute Resolution.
Also, the various mediation institutions have different accreditation criteria. However, a common thread among all the criteria is that an intending mediator must, at the minimum, obtain a university degree and must be fluent in English. In addition, although not mandatory, practising mediators are expected to update their mediation skills by taking refresher courses both locally and internationally, and this will count for the purposes of continuing professional development.Liability
What immunities or potential liabilities does a mediator have? Is professional liability insurance available or required?
Under the rules of the various mediation institutions, the parties are usually required to undertake to indemnify the mediator in respect of any liability from any act or omission in connection with the mediation proceedings. Indemnity clauses are also usually contained in the mediation agreement between the parties and the mediator. Hence, professional liability insurance is rarely required in Nigeria.Mediation agreements
Is it required, or customary, for a written mediation agreement to be entered into by the parties and the mediator? What would be the main terms?
The mediator, the parties and their representatives in a dispute submitted before a mediation institution in Nigeria are usually required to execute written mediation agreements before the commencement of the mediation proceedings. At the LCA, for example, this is usually done at the pre-mediation session using a prescribed form.
The main terms of the mediation agreement would typically include:
- details of the parties and their representatives for the mediation proceedings;
- details of the dates, times and venue of the mediation proceedings;
- an undertaking by the mediator to conduct the mediation diligently in accordance with the rules of the institution or any rules chosen by the parties, which may have been approved by the management of the institution;
- confirmation from the mediator that there is no conflict of interest;
- an undertaking by the parties to indemnify the mediator of any liability that arises from or is connected to the mediation unless it is caused by his or her fraud or dishonesty;
- confidentiality requirements; and
- terms of payment of the costs of mediation.
How are mediators appointed?
Various Nigerian mediation institutions have guidelines that govern the appointment of their panel of neutrals - the list of individuals available to act as mediators over any disputes submitted to the institution. The panel of neutrals is expected to consist of people with sufficient experience in their field as well as training and certification in the art of mediation.
Mediators are usually appointed from the panel of neutrals for specific proceedings. They can be appointed by the parties, or alternatively by a person responsible for such appointment (in the LCA, the president and in the LMDC, the executive secretary).
Although parties typically choose individuals from the panel of neutrals provided by the mediation institution to which they have submitted their dispute, they need not do so. Where parties have agreed in their contract, or subsequently, to appoint a particular mediator or use another procedure for appointment, they may do so.Conflicts of interest
Must mediators disclose possible conflicts of interest? What would be considered a conflict of interest? What are the consequences of failure to disclose a conflict?
Most mediation agreements contain terms mandating the mediator to disclose any conflict of interest. Also, by the rules of various mediation institutions in Nigeria, the mediator must disclose any possible conflicts of interest. The scope of the disclosure will depend on the rules of the mediation institutions or the agreements of the parties. For instance, under the LCA Mediation Rules, a potential mediator is expected not to have ‘any past or present, direct or indirect relationship with any of the parties whether financial or professional or any other relationship or any circumstances which may prejudice [the] duty to assist parties to resolve the dispute in a fair, just, independent and impartial manner’. Under the LMDC Practice Directions, the prospective mediator must disclose any circumstance likely to create a presumption of bias or prevent a prompt meeting with the parties.Fees
Are mediators’ fees regulated, or are they negotiable? What is the usual range of fees?
Mediator’s fees are not typically regulated in Nigeria. Where parties voluntarily appoint mediators and conduct their mediation proceedings outside the ambit of the mediation institution, the mediators’ fees are negotiated between the parties and mediator at their discretion.
The fees payable to mediators would depend on several factors, including the complexity and technicality of the dispute, the time involved in settling the dispute as well as the number of mediators with the level of experience to handle the dispute in relation to that subject matter within the relevant jurisdiction. This can vary quite significantly and can range between US$200 and US$50,000 or more.
For institution-based mediation, the guidelines of such institutions usually give the institution the authority to determine the mediators’ fees and any registration or administration fees payable by the parties.