Civil Litigation Notes for the BTC - Distinction!

Civil Litigation Notes for the BTC - Distinction! 2 of 310 OVERVIEW AND INTRODUCTORY MATTERS 1. DISCUSS THE SCOPE OF THE CIVIL LITIGATION COURSE Civil litigation/proceedings is mainly concerned with the enforcement of private rights. When used in contradiction to criminal litigation, it deals with resolution or determination of all disputes other than criminal. Thus, it refers to all processes and procedure relating to civil actions in court. Civil litigation refers to the entire body or rules of procedure and evidence that regulate civil proceedings in a court of law. it is wide enough to accommodate processes employed by parties to resolve the dispute between them before they finally end up in court, including pre-action notices, letters and ADR options employed before during and after proceedings have commenced in court. 2. DISCUSS THE DIFFERENT CIVIL DISPUTES SETTLEMENT MECHANISMS • Litigation and • ADR Mechanisms (A) Litigation: This refers to an action brought by a person against another person based on the legal principles by which the former asserts some rights or legal entitlements from the latter. Features of Litigation BEST WAR PLC • Binding decisions • Enforcement • State Controlled • Time consuming • Win/Lose atmosphere • Adversarial • Rigid and Technical • Publicly conducted—SEE SECTION 36(3) OF THE 1999 CFRN and OVIASU v. OVIASU • Lawyer dominated • Coercive. Cases best suited for litigation MTN RICE • Mandated by law situations 3 of 310 • Time is of essence • Need for precedent • Ridiculous/Frivolous demand situations • Interpretation of documents • Criminal cases (Public Policy) • Emergency situations Shortcomings of Litigation ---DICE2 BIP • Delay • Involuntary for the defendant • Control over the process by the parties is absent • Enforcement problem • Expensive • Breeds enemity—SEE JADESIMI v. OKOTIE-EBOH • Inflexible • Privacy absence (B) ADR Mechanisms: ADR relate to the alternative methods of dispute resolution that is aside litigation. In other words, should a potential litigant not be willing to go to court, which other method can be used to resolve the dispute. ADR can be taken up in 2 Ways: • Parties’ Agreement- to resolve their dispute through ADR. Private agreement e.g. Lagos Court of Arbitration, Mediation centers. • Court Referral- Most courts encourage resolution of disputes by ADR. Under the Rules of Court, the judge has an obligation to encourage parties to refer their disputes to ADR. In this sense ADR is court-connected eg Lagos Multi-Door Court House. SEE Order 25 R. 2(1) HCCPR Lagos state, 2012. Order_Rule_ HCCPR Abuja, 2018. The following are the methods available: ---MANCH EMER • Mediation: Parties settle amongst themselves with the help of a neutral third party known as a mediator who only facilitates the process of settlement. He helps them maintain communication and help them shift to interest-base to ensure an amicable resolution. It is a win-win system. Enforcement of Mediator’s facilitated agreement After the parties agree to the terms, they sign and date the outcome as witnessed by their lawyers. The agreement becomes binding and no party can resile from it. Thus, the right of a party to walk out of mediation ends as soon as the settlement agreement is signed by the parties. Comment [C1]: In the recent past the trend was dispute litigation. However in recent times ADR has occupied a pride of place due to its advantages over litigation and also because most civil procedure rules and even some criminal legislation now encourage ADR. Enabling provisions 1. Lagos rules objective if the rules – to promote efficient and speedy dispensation of justice – see preamble 1(B) Lagos 2. Amicable settlement of disputes by way of ADR (Preamble 1 (C) Lagos civil procedure rules) 3. All originating processes are screened for suitability for ADR and accordingly referred to the Lagos multi-door court house or some other ADR institution – Order 3 rule 11Lagos 2012; Order 5 Rule 8 Lagos 2019; Order 2 Rule 7 Abuja 2018 4. Every claimant in actions begun either by writ if summons or originating summons is required to front load the protocol Form 01 – see the format of the form 5. One of the purposes served by the case management conference is the promotion of amicable settlement of disputes: O 25 R 1 Lagos 2012; O. 27 Lagos 2019 6. The agenda for a judge at the CMC – making referrals to the Lagos multi-door courthouse – O25 R 2 Lagos 2012; O. 27 Lagos 2019; O. 27 Abuja 2018 7. The ADR judge may give directives on matters referred for ADR; failure to comply attract sanctions O 25 R 6 Lagos 2012 4 of 310 2 Thereafter, the parties file it in court and agree that the terms of settlement be made a consent judgment by the court. Mediation is governed by the rules of the mediation center. Features of Mediation ---V CAF • Voluntary (most outstanding feature) • Confidential • Accessible • Facilitative (keeping the interest and options of the parties alive for them to reach an agreement) Qualities of a Mediator for promotion of a successful mediation –PERFECT ING • Patience and persistence • Effective communication skills • Rapport building ability • Flexible and creative • Empathetic (sensitive to the parties’ needs) • Conflict handling ability • Tolerant • Trust worthy • Impartial and neutral • Non-judgmental • Good listening skills Stages of the mediation process • Preparation stage (venue of the mediation session is considered here) • Opening stage (introduction of the mediator and all the parties present; non-disclosure agreement; opening statements; privilege) • Agenda setting/Issue identification/Exploration stage (real issues are found out by the mediator) • Bargaining stage • Agreement stage (concluding agreement and enforcement) NB: Before any further step is taken in the preparation stage, the mediator must ensure the settlement of issues relating to: • Agreement of the parties to mediate • Representation of the parties • Experience of mediation previously by the parties • Authority of the person appearing Comment [C2]: 1. A voluntary ADR method which involves a neutral third party who uses his good offices to assist the parties achieve a negotiated settlement of their dispute 2. The mediator may be selected by mutual agreement, and he assists the parties as the facilitator of the amicable settlement of the dispute Why mediation? 1. Mediation is similar to negotiation with the major difference that mediation involves a neutral third party – the mediator 2. Mediation is available where negotiation is impossible or ineffective due to: i) Hostility and bad blood existing between the parties; ii) Lack of food faith/ distrust; iii) Undue rigidity/ uncompromising/ adamant attitude of either or both parties Comment [C3]: (ask yourself “are the real interests of the parties identified now?”) 5 of 310 • Pending litigation • Particular/special mediator requirement • Arrangement for the reception of parties • Nature of the dispute • Sitting room arrangement NB: The opening statement at the opening stage by the mediator usually consists of four (4) components (if asked to draft a standard mediator’s opening statement, use these components as your guide) IRIG • Introduction of the mediator • Role to be played by the mediator • Impartiality and neutrality of the mediator • Ground rules to govern the process Factors responsible for the failure of mediation • Opposites of the qualities of a mediator mentioned above are all factors • Stonewalling/unwillingness to cooperate on the part of the parties Ethical matters in mediation 1. Don’t misrepresent facts knowingly to the mediator 2. Duty to act with integrity. Mediation or any ADR should nit be used purposely to delay eventual litigation; or only to obtain information of the opposite party’s case – RPC • Arbitration: This is a method of setting dispute through an impartial third party or parties called Arbitrator(s). An arbitrator who sits as an umpire to decide the case is appointed. He hands down an award which is like a judgment of the court enforceable at the High Court. The parties may within THREE MONTHS FROM THE DATE OF THE AWARD OR DATE OF THE ADDITIONAL AWARD (where applicable) apply to the court (HC) to set aside the award on the grounds set out in Sections 29 and 30 of ACA, otherwise the award is binding. The grounds are AMI (i) Award contains decisions on matters beyond the scope of submission to arbitration. NB: where the part not submitted can be separated from that submitted, only the part not submitted is subject to be set-aside. (ii) Misconduct of the arbitrator. (iii) Improper procurement of the arbitral proceeding or award. • Negotiation: This is a bargaining relationship between parties in an effort to reach an agreement. It is a voluntary process and parties have total control over the processes. Comment [C4]: Disadvantages 1.Costlier 2. Want of privacy/ confidentiality 3. Possibility of bias/ partiality on the part of the mediator 4. Where the mediator is not trusted parties may be reluctant to discuss/ disclose information 5. Lack of expertise on the part of the mediator may be fatal to the process Comment [C5]: Process whereby parties to a dispute seek a solution to their difference, in a voluntary and direct manner It may take nay o the forms of communication, e.g. oral or written i. Direct communication in a meeting ii. By telephone iii.SMS iv.Email v.Correspondence – letter Features Direct, limited to the parties, without the intervention of any third party. May take place before an action is filed or even after the filing of such action A “term of settlement” is agreed upon and filed in the latter case. Comment [C6]: Contrast negotiator & mediator 1. Mediator – faster – 3rd party intervention 2. Parties are easily committed to dispute resolution 3. Mediator uses his good offices and expertise to assist in achieving resolution 4. Flowing from 2, brick walls are broken down; effect of ego minimised 5. Enforcement is easier; 3rd party is a potential