So much concerns are now being raised in legal circles on what truly the new developments in the judicial sphere hold for the business of law and its practice. With the massive invasion of alternative dispute resolution processes, it is the obvious fact that every litigating lawyer must now learn new ways of running their practice if they are to remain in business.
Perhaps the hardest blow so far is the 2019 Civil Procedure Rules of the Lagos State High Court which has made it impossible to commence civil litigation without first going through one platform of the ADR process.
If the foregoing challenge is of any worry, perhaps a greater challenge which has not fully dawn on both judiciary and the larger society is the near ignorance of potential users of ADR services on what the process is all about. It is true that several commentators including this writer have variously blamed the stunted growth of ADR on the legal profession. What we all have not given significant thought to is how the ignorance of the clients have and will continue to hamper the growth and gains of the new regime.
Every ADR process, particularly the process of mediation, is heavily dependent on the versatility, knowledge or rationality of the client. Unlike litigation where the lawyer is in full control of the skills and technicality of the process, the lawyer in ADR must necessarily work only as partner of the client in achieving an outcome for mediation. Where the client is neither educated about the process nor feels obliged to make it work, the lawyer will necessarily also be stuck.
It therefore will take the lawyer additional hours of educating, counseling and or creating options for the client’s approval if their day at mediation is not to be messed up. You should know as much as I do, that not every lawyer is gifted with the art of teaching. A significant others too may not have the patience of taking the client from ground zero in the quest to fulfill a brief.
This is why I have said elsewhere in my series of writing that the unforeseen consequences of the new rules will be the breakup of the fusion of the career paths of Barristers and solicitors in our jurisdiction.
The question that must now be asked is whose responsibility is it to educate the citizenry about the sea change in law which is attempting to upstage the centuries old litigation process. Will alternative dispute resolution achieve its objectives if we continue in the trajectory so far established? Does it make any sense for mediation institutions to continue to train and send out mediators into a non-existent market?
A market is said to exist when there are sufficient willing buyers of the products and services available. As someone has since complained on a mediator WhatsApp group here in Lagos, there appears now to be more mediators than cases for resolution. This is a stark reality in the formal mediation institutions. What the Speaker should however be understood to say is the that vast majority of potential clients are unenlightened on the way to go
What all of the foregoing submissions and observations amount to is that the judiciary and the larger society are currently faced with the grim task of building a business from scratch. The potentials of the ADR sphere is so massive that it cannot at this stage be left to the judiciary and respective lawyers alone. The judiciary has done what is expected of her creditably well. It has led the way to initiating laws, providing the rules and giving directives to lawyers on what to do in the societal bid to fast track justice delivery, promote amity and peace as well as decongest our prisons.
On their part, lawyers must see the developments as a personal call to arms. Law practice has just been disrupted just like several other facets of our lives. What is required is to wake up to the new reality and join hands in making the best of the new ways of doing things. It definitely requires training and retraining of ourselves and our clientele if our legal businesses are to remain sustainable.
The growth of mediation in our society should also be of concern to others, particularly the government and the corporates. Businesses of all sizes derive more benefit mediating a range of issues than litigating them or taking the law into their own hands. Having said this, the true responsibility of making alternative dispute resolution work in society must be the business of the government. The massive structure and financials required to create the great impact can only be provided by government.
Just like government provides massive funding for election processes, it must arise and do same in this regard. ADR consciousness must be created in the populace. The National Orientation Agency perhaps has no greater calling at the moment than to expend the several millions available to it for public sensitization in this regard.