Legislation Review - The New Nigerian Arbitration and Mediation Act, 2023 PART II – MEDIATION
SECTIONS ON MEDIATION
Section 67
Scope of application of this Part
Describes where mediation is applicable and where it is not.
It applies to (a) international commercial mediation; (b) domestic commercial mediation (c) domestic civil mediation (d) domestic and international settlement agreement resulting from mediation and concluded in writing by parties to resolve a commercial dispute (e) where the parties agree in writing that this part should apply to the dispute.
Note: Part II of the AMA applies irrespective of the basis upon which the mediation is carried out, including agreement between the parties whether reached before or after a dispute arisen, an obligation established by law, or a direction or suggestion of a court, tribunal or competent governmental entity.
It does not apply to (a) disputes emerging from rights and obligations settlement, which would be void under Nigeria law; (b) cases where a judge or an arbitrator, in the course of judicial or arbitral proceedings, attempts to facilitate a settlement, unless the parties agree otherwise. (c) cases that have been recorded and are enforceable as an arbitral award unless the parties agree otherwise. (d) cases that have been approved by a court or concluded in the course of proceedings before a court, unless the parties agree otherwise; or cases that are enforceable as a judgment of a court, unless the parties agree otherwise.
Section 68
Uniformity of Interpretation
This states that regard is to be had to the need to promote uniformity in its application and the observance of good faith. Questions concerning matters governed by this Part which are not expressly settled in it are to be settled in conformity with the general principles on which this Part is based.
Section 69
Variation by Agreement
The parties may agree to exclude any of the provisions of Part II (B) except for the provisions of section 73 (3) that requires the mediator in the conduct of the proceedings to maintain fair treatment of the parties and, in so doing, take into account the circumstance of the case and the mediator’s obligation shall be equal with regards to all parties.
Section 70
Commencement of Mediation Proceedings
Provides for the various ways of commencing the mediation process and this includes amongst –
- The need for parties to conclude in writing a mediation agreement where the initiation of a mediation procedure is prescribed by a special statute as a condition for judicial or other proceedings or
- where the parties agreed when concluding the agreement to try to resolve the dispute through mediation before resorting to judicial or other proceedings.
The date of commencement of the mediation shall be the date that the agreement to mediate was signed , where this is drawn up in writing after a dispute has arisen or, in case of reference to mediation by a court the date the court made its decision and in other case, on the date when the mediator took the first step to start the mediation.
Section 71
Suspension of Limitation Period
When the mediation proceedings commence, the running of the limitation period is suspended. Where the mediation proceedings have terminated without a settlement agreement, the limitation period resumes running from the time or day the mediation ended without a settlement agreement.
Section 72
Number and Appointment of Mediators
There shall be one (1) mediator, unless the parties agree to have two or more mediators. A party may seek the assistance of a mediation provider that he keeps a list of qualified mediators in connection with the appointment of mediators.
The mediation provider can advise appointing a mediator of a nationality other than the nationalities of the parties based on impartiality or independence. When a person is approached in connection with possible appointment as mediator, the person shall disclose the circumstances likely to give rise to justifiable doubts as to impartiality or independence.
Section 73
Conduct of Mediation, Fees and Expenses
Parties are free to agree, by reference to a set of rules or otherwise, on the manner in which the mediation is to be conducted, and the parties shall attend and participate in the mediation in good faith. Where there is no agreement, the mediator may conduct the proceedings in an appropriate manner.
Subsection (7) states that a mediator is entitled to a fee and reimbursement of expenses incurred in connection with mediation unless the mediator agreed to mediate without a fee and the parties bear their own costs, and unless the parties agree otherwise, the fee and expenses of the mediator as well as the fees of the mediation provider shall be borne by the parties in equal shares.
Section 74
Communication between Mediator and Parties
A mediator may meet or communicate with the parties together or with each of them separately as the mediator considers necessary.
Section 75
Disclosure of Information
Where the mediator receives information concerning the dispute from a party, the mediator may disclose the substance of that information to any other party to the mediation, but when a party gives any information to the mediator, subject to a specific condition that it be kept confidential, that information may not be disclosed to any other party to the mediation.
Section 76
Confidentiality
All information relating to the mediation must be kept confidential except parties agreed otherwise. Exceptions include -
1. under the law;
2. for the purposes of implementation or enforcement of a settlement agreement;
3. necessary in the interests of preventing or revealing(i) the commission of a crime (including an attempt or conspiracy to commit a crime),(ii) concealment of a crime, or (iii) a threat to a party; or
4. Necessary to protect public order, but only under the conditions and in the scope prescribed by law.
Section 77
Admissibility of evidence in other proceedings
A party to the mediation proceedings, the mediator and any third-party, including those involved in the administration of the mediation proceedings, shall not in arbitral, judicial, or similar proceedings rely on, introduce as evidence or give testimony or evidence regarding -
(a) an invitation by a party to engage in mediation proceedings or the fact that a party was willing to participate in mediation proceedings;
(b)views expressed or suggestions made by a party in the mediation in respect of a possible settlement of the dispute;
(c) statements or admissions made by a party in the course of the mediation proceedings;
(d) proposals made by the mediator;
(e) the fact that a party had indicated its willingness to accept a proposal for settlement made by the mediator; and
(f) a document prepared solely for purposes of the mediation proceedings.
(2) Subsection (1) applies irrespective of the form of the information or evidence referred to therein.
(3) Subject to the provisions of section 76 of this Act, the disclosure of the information referred to in subsection (1) shall not be ordered by an arbitral tribunal, court, or other competent governmental authority and, where the information is offered as evidence in contravention of subsection (1), that evidence shall be treated as inadmissible.
(4) The provisions of subsections (1), (2) and (3)apply whether or not the arbitral, judicial, or similar proceedings relate to the dispute that is or was the subject matter of the mediation proceedings
(5) Subject to the limitations of subsection (1), evidence that is otherwise admissible in arbitral or judicial or similar proceedings does not become inadmissible as a consequence of having been used in mediation.
Section 78
Termination of Mediation proceedings
Mediation proceedings are terminated by-
(a) the conclusion of a settlement agreement by the parties, on the date of the agreement;
(b) a declaration of the mediator, to the effect that further efforts at mediation are no longer justified on the date of the declaration;
(c) a declaration of the parties addressed to the mediator to the effect that the mediation proceedings are terminated on the date of the declaration;
(d) a declaration of the mediation provider administering the mediation, if any, on the date of the declaration; or
(e) a declaration of a party to the other party or parties and the mediator, if appointed, to the effect that the mediation proceedings are terminated, on the date of the declaration.
Section 79
Mediator Acting as Arbitrator
Unless otherwise agreed by the parties, a mediator shall not act as an arbitrator in respect of a dispute that was or is the subject of the mediation proceedings or in respect of another dispute that has arisen from the same contract or legal relationship or any related contract or legal relationship.
Section 80
Resort to Arbitral or Judicial proceedings
Where parties have agreed to mediate and have expressly undertaken not to initiate arbitral or judicial proceedings with respect to an existing or future dispute during a specified time or until a specified event has occurred, such an undertaking shall be given effect by the arbitral tribunal or the Court until the terms of the undertaking have been complied with, except to the extent necessary for a party, to preserve its rights but initiation of such proceedings is not of itself to be regarded as a waiver of the agreement to mediate or as a termination of the mediation proceedings.
Section 81
Immunity for mediators and mediation providers
Mediators and mediation providers enjoy immunity for official acts and are not liable for any act done or omitted in the discharge or purported discharge of their functions under this Part, unless their action or omission is shown to have been in bad faith.
Section 82
Binding and enforceable nature of settlement agreement
1) Where parties conclude an agreement settling a dispute, the mediator shall participate in the preparation and drafting of the settlement agreement, where the parties agree.
(2) Subject to section 87 of this Act, the settlement agreement resulting from the mediation is binding on the parties and enforceable in Court as a contract, consent judgment or consent award.
Section 83
Requirements for Reliance on a Settlement Agreement
Subject to section 87 of this Act party relying on a settlement agreement shall supply to the Court with the following -
(a) the settlement agreement signed by the parties;
(b) evidence that the settlement agreement resulted from mediation, such as -
(i) the mediator's signature on the settlement agreement,
(ii) a document signed by the mediator indicating that the mediation was carried out,
(iii) an attestation by the mediation provider that administered the mediation, or
(iv) In the absence of (i), (ii) or (iii), any other evidence acceptable to the Court.
(2) The requirement that a settlement agreement shall be signed by the parties or, where applicable, the mediator, is met in relation to an electronic communication if -
(a) a method is used to identify the parties or the mediator and to indicate the parties' or mediator's intention in respect of the information contained in the electronic communication; and
(b) the method used is either -
(i) as reliable and as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement, or
(ii) Proven in fact to have fulfilled the functions described in subparagraph (a), by itself or together with further evidence.
(3) Where settlement agreement is not in an official language of this State, the Court may request a translation from it into the official language.
(4) The Court may require any necessary document in order to verify that the requirements of this section have been complied with.
(5) When considering the request for relief, the Court shall act expeditiously.
Section 84
Grounds for Refusing to Grant Relief
Subject to section 87 of this Act the Court may refuse to grant reliefs at the request of the party against whom the relief is sought only if that party furnishes to the Court proof that -
(a) a party to the settlement agreement was under some incapacity; or
(b) the settlement agreement sought to be relied upon -
(i) is void, inoperative or incapable of being performed under the law to which the parties have validly subjected it or, under the law deemed applicable by the Court,
(ii) is not binding, or is not final, according to its terms, or
(iii) has been subsequently modified;
(c) the obligations in the settlement agreement -
(i) have been performed, or
(ii) are not clear or comprehensible;
(d) granting relief would be contrary to the terms of the settlement agreement; Or
(e) There was a failure by the mediator to disclose to the parties' circumstances that raise justifiable doubts as to the mediator's impartiality or independence and the failure to disclose had a material impact or undue influence on a party without which failure that party would not have entered into the settlement agreement.
(2) The Court of this State may also refuse to grant reliefs if it finds that
(a) granting relief would be contrary to the public policy of this State; or
(b) the subject matter of the dispute is not capable of settlement by mediation under the law of this State.
Section 85
Parallel Applications or Claims
Where an application or a claim relating to a settlement agreement has been made to a Court, an arbitral tribunal or any other competent authority which may affect the relief being sought under section 83, the Court of this State where the relief is sought may, if it considers it proper, adjourn the decision and may also, on the request of a party, order the other party to give suitable security.
Section 86
General Principle
Unless otherwise provided in this Part -
(i)A settlement agreement shall be enforced in accordance with the rules of procedure of this State, and under the conditions laid down in this Part.
(2) Where a dispute arises concerning a matter that a party claim was already resolved by a settlement agreement, the party may invoke the settlement agreement in accordance with the rules of procedure of this State, and under the conditions laid down under these provisions, to prove that the matter has already been resolved.
Section 87
Application of the Convention on International Settlement Agreements resulting from Mediation[1]
Without prejudice to sections 81 and 83 of this Act, where the enforcement of an international settlement agreement made in a State other than the Federal Republic of international Nigeria is sought, the Convention on International Settlement Agreements Resulting Settlement Mediation (the Singapore Convention) applies to that international settlement agreement, agreements result provided that the -
(a) State is a party to the Singapore Convention
(b) Difference arises out of a legal relationship, whether contractual or, it is not, considered commercial under the laws of Nigeria.
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Qualifications and Disclaimers: This Publication is prepared strictly for informational purposes. It should not be relied upon or serve as a substitute for a proper legal advice. Counsel will not be held liable for any action or inaction that is premised strictly on the Business Legislation Review.
For Further Information, Please Contact –
1. Mr. Ikemefuna Stephen Nwoye – Founder/Managing Counsel
2. Miss Favour Enam Jideofor – Associate
3. Miss Anita Ewere Usiagwu - Paralegal
[1] See Ikemefuna Stephen Nwoye, A Review of The United Nations Convention on International Settlement Agreements Resulting From Mediation available at https://deliverypdf.ssrn.com/delivery.php?ID=257084068082095078100025073090091014121020061002091051009020031076006109073098086105055055037022107126110116099082003107008125010012068050015109075021116006081102080052059077104028070005007099005022005097123125095024065022001103112026005101092119004008&EXT=pdf&INDEX=TRUE (accessed on 13 June 2023).