Fair hearing: A case for the constitutionality of

court ‘ordered ‘mediation in Nigeria

Ademola Oluborode JegedeResearcher, Alternative Dispute Resolution

1 Introduction

The new High Court of Lagos (Civil Procedure) Rules 2012 (2012

Rules), contains provisions of implications for Alternative

Dispute Resolution (ADR). Not least of these is Order 3 Rule

11 which empowers the court registry to screen applications or

actions filed before the court for ADR suitability. Another

provision, Order 25 Rule (2) (1) distinctly makes ADR an

option for case management by the court and a process choice

when parties are referred by the court to the Lagos Multi-Door

Courthouse (LMDC) or any other ADR institution. These

provisions should be appreciated together with Order 25(6),

(7) and (8) dealing respectively with ADR Directives and

Sanctions, undertaking to participate in Case Management

Conference or ADR and cooperation of legal practitioners.

Adding to the uniqueness of the 2012 Rules in terms of

implications for ADR is Order 49(2) of the High Court of Lagos

State (Civil Procedure) Rules 2012 (2012 Rules), which calls

for costs sanctions against the winning party where such party

had rejected settlement offers in the course of case

management or alternative dispute resolution (ADR), arguably

at the Lagos Multi-Door Courthouse (LMDC). These provisions,

when read together, evidence and support in one form or the

other ‘court-ordered mediation’, at least in Lagos State, and

arguably, in other states which already or may adopt similar

provisions in their rules of court in the near future.

The legitimacy of the foregoing provisions authorising court

‘ordered’ mediation and the constitutionality of the very

process of court ‘ordered’ mediation appears debatable

particularly in view of certain provisions of 1999

Constitution in relation to fair hearing and resolution of

disputes. At the heart of this legitimacy is for instance,

section 36 (1) of the 1999 Constitution which provides as

follows:

In the determination of his civil rights and obligations, including

any question or determination by or against any government or

authority, a person shall be entitled to a fair hearing within a

reasonable time by a court or other tribunal established by law and

constituted in such manner as to secure its independence and

impartiality.

The above position of the Constitution in relation to what

constitutes fair hearing is further strengthened by other

provisions generally relating to the jurisdictions of court

including, section 272 of the Constitution which confers

jurisdiction on the High Court ‘to hear and determine any

civil proceedings in which the existence or extent of a legal

right, power, duty, liability, privilege, interest, obligation

or claim is in issue or to hear and determine any criminal

proceedings involving or relating to any penalty, forfeiture,

punishment or other liability in respect of an offence

committed by any person’.

Indeed, the legality of court ‘ordered’ mediation appears

further questioned by section 36(3) of the 1999 Constitution

which articulates the manner in which proceedings are to be

conducted. Section 36(3) provides:

The proceedings of a court or the proceedings of any tribunal

relating to the matters mentioned in subsection (1) of this section

(including the announcement of the decisions of the court or

tribunal) shall be held in public.

Arguably therefore, what is clear from the provisions of

section 36, for the purpose of this discussion, are four

elements or ingredients in the fair hearing provision, namely

the guarantees that (a) a person is entitled to fair hearing

(b) the trial must take place within a reasonable time (c) the

trial must take place before a court or a tribunal established

by law and constituted in such manner as to secure its

independence and impartiality and (d) proceedings in relation

to hearing must take place in the public.

As it seems, however, the foregoing considerations are not

cast in stone as section 36(2) also provides:

Without prejudice to the foregoing provisions of this section,

a law shall not be invalidated by reason only that it confers

on any government or authority power to determine questions

arising in the administration of a law that affects or may

affect the civil rights and obligations of any person if such

law - (a) provides for an opportunity for the persons whose

rights and obligations may be affected to make representations

to the administering authority before that authority makes the

decision affecting that person; and (b) contains no provision

making the determination of the administering authority final

and conclusive.

The issue, therefore, is whether mediation when mandated or

referred or ordered by court meets with the four criteria

earlier identified as constitutional requirements in relation

to fair hearing or whether the process resulting from a court

referred or mandated mediation fit into the exception created

under section 36(2) of the 1999 Constitution. The argument is

made in this piece is that court ‘ordered’ mediation as

ensured under the 2012 Rules satisfies the relevant and

substantial criteria identifiable under section 36 of the 1999

Constitution in relation to fair hearing in the event of

dispute resolution, and for that reason, it is constitutional.

2 Arguments and counter- arguments

To be sure, court ‘ordered’ mediation satisfies the essential

ingredients of fair hearing provision of the 1999

Constitution, namely the guarantees that (a) a person is

entitled to fair hearing (b) trial must take place within a

reasonable time (c) trial must take place before a court or a

tribunal established by law and constituted in such manner as

to secure its independence and impartiality and (d)

proceedings in relation to hearing must take place in the

public. What is more, the law authorising court ‘ordered’

mediation meets with the exception created under section

36(2) of the 1999 Constitution. The arguments against and in

favour of how a court ‘ordered’ mediation stands in relation

to these ingredients, however, merit a close examination. This

is done in the immediate paragraph and followed by a brief

discussion of case law from different jurisdictions on the

constitutionality of the law and resultant process of court

‘ordered’ mediation of civil disputes.

2.1 Entitlement to fair hearing

Fair hearing provision presupposes equality of arms and

implies that parties are to be treated in a manner that

ensures procedural equality throughout the trial or hearing.

The detractors of ADR may argue that mediation does not allow

for fair hearing for the reason that parties are not always

equal in power relation. Disputes, it can be argued,

particularly those involving husband and wife, employer and

employee, master and servant, the rich and the poor, the well

placed and the common man do not present a balanced power

relation scenario. Hence, the argument may continue, the

resolution of such disputes should require the level playing

ground which litigation and representation by lawyers in court

room provide. The discontents of mediation may thus conclude

that since court ‘ordered’ mediation does not perfectly match

with the detail ingredients of fair hearing, it should be no

more than voluntary. Hence, it is pointless for a law to

provide for a court ‘ordered’ mediation constraining parties

to participate in the arrangement.

This point has been similarly made by Delgado et al about why

litigation in the court-room should be preferred to mediation.1

The authors note that the court system has incorporated

societal norms of fairness and even-handedness into

institutional expectations and rules of procedure. These norms

create a public conscience and a standard for expected

behaviour that check overt signs of prejudice and

impartiality. Unlike litigation in court room, mandatory

mediation may therefore not offer protection for the weaker

party because the mediator may not comply with strict rules of

procedure or law, but merely acts as a facilitator. What is

more, the mediation process may deemphasize the concerns and

rules constructed by courts to protect weaker parties and

assume that the people or entities that interact outside

formal legal institutions are roughly equal in political

power, wealth, and social status. This is worsened, in the

authors’ view, since there is no tribunal to make sure that

the individuals participating in mediation comport themselves

in accordance with society's perceptions of fairness.

1R Delgado, C Dunn, P Brown, H Lee & D Hubbert ‘Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution’ (1985) Wisconsin Law Review 1359, 1366-1394

The above arguments questioning mediation, and arguably by

extension, the law authorising court ordered mediation seems

interesting but can be faulted on certain grounds. First, it

is certain that not even litigation in the court room can

effectively meet Delgado’s vision of societal obligations in

relation to even-handedness and norms of fairness. Even the

most zealous lawyer will agree that court room litigation has

its own challenges which may undermine its even-handedness.

For instance, in litigation, access to legal practitioner may

depend on the financial capability of the party. Even where

court appoints a legal representative for an indigent party,

it is still a choiceless representation imposed on the party.

Similarly, since the presumption is that the judge is neutral

in matters brought before him, the onus, and this is often

difficult to prove, is on the parties to show why a judge

should recuse himself in a matter where he is adjudged to have

interests. Also, in the course of trial, the point on even

handed-ness of parties may become further compromised as

parties may be unable to follow the technicality of

proceedings including lawyer’s submission on a number of

issues.

Second, contrary to Delgado’s view on this issue, court

‘ordered ‘mediation, at least under the 2012 Rules, reflects a

higher possibility of fairness and even-handedness which is

consistent with constitutional provision on fair hearing.

This is considering that unlike the scenarios under court

litigation proceedings, the court ‘ordered’ mediation allows

parties with or without legal representation, to represent

themselves in a process conducted under a neutral of their

choice. Also, unlike litigation in the court room where

approach is one of strong arguments, and who is right or wrong

or liable, under court ordered mediation, parties are able to

participate in a dispute resolution process which relies on

consultation and persuasion and essentially focuses on the

need to balance harmony with justice. Arguably, nothing meets

with societal understanding of justice any better than this.

Third, in addition to the fact that even fair hearing issues

may arise in court litigation, portraying court-room trials as

the exclusive epitome of fair hearing principle is unreal and

unproductive, especially when the remedies which sometime

emerge from the court system is not voluntarily arrived at by

parties and therefore not always suited for a range of diverse

disputes brought before it. Remedies awarded by court are

generally outcomes of contestation and skewed towards the

perceived or adjudged winner of dispute. Court ‘ordered’

mediation, however, enables parties to create consensus and

work out voluntary settlement which focuses on flexible

remedies to their shared concerns. The dynamics entailed in

such a process, allows for parties to exhaust their

viewpoints, gain power over their cause and own remedies

resulting from the mediation process. This effective dynamics,

arguably, surpasses the threshold of fair hearing in the

constitution.

2.2 Trial within Reasonable Time

While what constitutes trial within reasonable time is not

defined anywhere in the constitution, the Supreme Court was

generous to shed light on this concept in Gozie Okeke v. The State .2

According to Justice Ogundare:

The word "reasonable" in its ordinary meaning means moderate,

tolerable or not excessive. What is reasonable in relation to

the question whether an accused has a fair trial within a

reasonable time depends on the circumstances of each

particular case, including the place or country where the

trial took place, the resources and infrastructures available

to the appropriate organs in the country… 3

If trial within reasonable time is an essential component of

constitutional guarantees of fair hearing, and it certainly

is, then the process of court ‘ordered’ mediation is

consistent with the constitutional requirement for trial

within reasonable time as an essential element of fair

hearing. The reasons for this are not far-fetched. The

conception and birth of ADR movement is in fact traceable to

2 Gozie Okeke v The State (2003 15 NWLR pt. 842 p 25) (Gozie’s case)3 Gozie’s case, paras 84-85

the public dissatisfaction in the judicial system in terms of

its delay. As Honourable Mr. Justice Chukwudifo Oputa, a now

retired Justice of the Supreme Court of Nigeria once put it:

The administration of Justice in our courts suffers from two major

constraints, namely delay and expense. If it takes 7-10 years to

decide a case, a prospective litigant may decide not to go to

court at all.4

There are a number of factors which may be accountable for

delay. These may include: lawyers writing letters of

adjournment of cases, inability of judges and magistrates to

deliver judgments on time, the rule that once a magistrate or

judge is transferred and a new one takes over a case, it has

to start de novo.5 Addressing these challenges, it is

contended, is in fact the very reason why court ‘ordered’

mediation is inevitable. This viewpoint is discernible from

key provisions of the LMDC Law and the 2012 Rules. For

instance, it is note-worthy that an overriding objective of

the LMDC as set out under section 2(b) of its 2007 Law is to

‘minimize citizen frustration and delays in justice delivery

by providing a standard legal framework for the fair and

efficient settlement of disputes through Alternative Dispute

Resolution’. The element of delay prevention also comes out

clearly in the wordings of Order 25(2)(b) of the 2012 Rules,

which provides that upon an application by claimant , the

Judge shall issue to the parties and their legal practitioners

a Case Management Conference Notice and Information Sheet for

4CA Oputa Human Rights in the Political and Legal Culture of Nigeria (1989)5TA Aguda The Crisis of Justice (1986) 31-33, Nigeria : Eresu Hills Publishers

the purposes including ‘giving such directions as to the

future course of the action as appears best adapted to secure

its just, expeditious and economical disposal.’

Considering the foregoing, therefore, and particularly the

fact that Nigeria is the most populous nation in Africa where

a great deal of peoples seeks access to justice, the need for

a law or rules enabling court ‘ordered’ mediation as allowed

by the 2012 Rules cannot be overstated. Indeed, it is one

laudable option which affords parties with a less time-

consuming mechanism in several places simultaneously outside

the court room, and for that purpose, extends the stakeholders

in dispute resolution beyond the lawyers and judges who are

able to serve as mediators of disputes in most timely and

reasonable way. As Phillips, aptly put it, in the mediation

process, ‘the parties themselves control the timing and the

length of the mediation proceeding. It can happen next month,

next week or tomorrow, depending on what the parties

themselves think is most likely to accomplish the task of

settling the case. 6This is indeed true of several of mediation

exercises which the LMDC has conducted, with the resolution of

some disputes lasting in matters of hours or days! Hence,

court ‘ordered’ mediation, it is contended, meets the demand

of ‘trial within reasonable time’, an essential ingredient of

the right to fair hearing.

6FP Phillips The Emerging Role of ADR within the Business Sector (2006), a paper delivered during the 1st NCMG African ADR Summit, Nov.1 -2, 2006

2.3 Independent and Impartial Court or a Tribunal

established by Law

While it is conceded that court ‘ordered’ mediation takes

place within a dispute resolution space that does not directly

meet the ingredient of ‘a court’ or a ‘tribunal’, the fact

that the process is ordered pursuant to a law or rules validly

passed should leave no one in doubt as to its consistency with

constitutional requirement of independence and impartiality.

For instance the LMDC, an ADR institution to which referral of

court ‘ordered’ mediation can be made, is established under

the LMDC Law 2007. It is governed by a board which is

constituted in such a manner as to secure its impartiality and

independence.7 Members of the board are distinct from the panel

of neutrals which helps parties with the facilitation of

dispute resolution. Also, although connected with court, the

process at the LMDC is not influenced by the court which

refers matters to it. The Practice Direction (2012) and

Process Flow for ADR Track Matters which guide its day to day

operation only require the LMDC to file a report in respect of

the process that takes place before it, particularly in the

case of a recalcitrant party who may act to defeat the

overriding objective of the LMDC.8 This report merely targets

the recalcitrance of a party and is not meant to compromise

the integrity of mediation process. Another aspect of the

legitimacy of its law and process derive from the fact that

7 LMDC Law, sections 5, 6, 7 & 8 8 LMDC Process Flow for ADR Track Matters, para x

the Practice Direction and the LMDC Law also ascribe different

role to stakeholders, that is, lawyers, judges, and parties

involved in the disputes.9

During the process of mediation, parties can either represent

themselves or come with their lawyers to the mediation

exercise. Parties are given equal time to present their issues

and participate in the process in accordance with the rules

which they have taken time to lay down. The mediators who are

freely selected by parties work in strict compliance with

known code of ethics, which among others, provide for several

principles including the independence and impartiality of the

mediators.10 Even after matters are mediated by neutrals at

the LMDC, the choice of a party who is dissatisfied with the

outcome is not over. Settlements reached at the LMDC, once

endorsed by an ADR judge only becomes consent judgement, and

with leave of court, such judgement can still be challenged on

appeal.11

Hence, based on the provision of section 36(2) of the 1999

Constitution, it can be argued that the law establishing the

LMDC or any ADR institution for that matter as well as the

process of court ‘ordered’ mediation does not compromise fair

hearing principle and cannot be invalidated simply because it

confers on the LMDC or that institution the power to entertain

disputes referred to it. Most certainly, it cannot be9 LMDC Practice Direction 2012 , arts 8, 9,10 and 11; LMDC Law sections 16,17 and 18 10 LMDC Practice Direction 2012 , art 6(e) 11 LMDC Law, section 31

invalidated because in line with the provision of the said

section 36(2) of the Constitution, the process at the LMDC (a)

provides for an opportunity for the persons whose rights and

obligations may be affected to make representations to the

administering authority before that authority makes the

decision affecting that person; and (b) contains no provision

making the determination of the administering authority final

and conclusive.

2.4 Public Hearing

The fourth element of fair hearing identified for the purpose

of this discussion is that hearing of disputes should be

public. The right to a public hearing requires that the court

or tribunal makes information about the time and venue of the

hearing available as well as make adequate facilities for

attendance by interested members of the public. There is no

doubt that even in litigation, there is an exception to a wide

application of these requirements. Most certainly, not all

hearing is made public. People on witness lists may not be

allowed in the courtroom until they have testified. Judges may

also decide to clear the courtrooms in trials relating to

rape, juvenile cases or if there is likelihood of one form of

threat or the other against parties. To be sure, even while

reporting certain cases, name of parties are not made

available to the public. This is arguably because it raises

issues around decency and confidentiality.

It is, therefore, in the above context that the lack of public

hearing in court ‘ordered’ mediation should be understood. The

main feature which makes mediation private is its

confidentiality. Confidentiality is crucial to a successful

mediation considering that it helps guarantee the frankness of

the parties and the sincerity of the communications exchanged

in the course of the process. Here parties are open and free

to share inconvenient truths which they will ordinarily be

uncomfortable to share in the court-room. The primary reason

for protecting confidentiality in ADR is, therefore, to

enhance trust both in the parties and the process itself.

Confidentiality at court ‘ordered’ mediation operates at two

levels. First, the process is confidential as between the

participants, preventing third party knowledge of the dispute

or any attempt to settle it, and also in terms of all matters

disclosed in the process. Secondly, matters discussed between

one party and the neutral third party in private sessions are

expected to be confidential between them and may not be

disclosed to any other party without express consent.

However, it is important to note that confidentiality is not

absolute in mediation, issues of fraud or misrepresentation,

as the case may be, are certainly exempted from the

confidentiality rule.12 In any event, it is argued that as the

rule of public hearing is not absolute even in its application

to litigation, it is understandable that the situation is not

different in a more personal process of mediation. Therefore,

12K Gibson ‘Confidentiality in Mediation: A Moral Reassessment’ (1992) 1 JDR 62

its departure from public hearing principle does not

necessarily contradict the guarantee under the constitution in

respect of fair hearing.

In all, it can be safely submitted that court ‘ordered’

mediation meets with all the ingredients under the fair

hearing rule and is therefore constitutional. However, since

these arguments may be regarded as merely academic, it is

important to illustrate the constitutionality of court

‘ordered’ mediation at least by examining some case law from

some jurisdictions.

3 Constitutionality of Mandated Mediation through Case Law

There is case law from jurisdictions such as United States,

Italy, England and South Africa which at least may be relevant

in understanding the constitutionality of court ‘ordered’

mediation in Nigeria in relation to compliance with fair

hearing principles.

3.1 United States

In the case of The Hess Collection Winery v. California Agricultural Labour

Relations Board & United Food and Commercial Workers Union and Fresh Fruit and

Vegetable Workers Local ,13 the Third District Court of Appeals had

cause to examine the constitutionality of mandatory mediation.

13 The Hess Collection Winery v California Agricultural Labour Relations Board & United Food and Commercial Workers Union and Fresh Fruit and Vegetable Workers Local (Cite as 06 C.D.O.S.6049, 2003)

In that case, after Hess Collection Winery (Hess) and the

United Food and Commercial Workers Union (Union) had failed to

agree on the terms of an initial collective bargaining

agreement, a private ‘mediator’ determined the terms of a

contract by which the parties would be bound, pursuant to

section 1164 of the Labour Code in California which stipulates

for mandatory mediation in matters relating to agricultural

employment. Hess was not satisfied with the decision of the

private mediator and therefore petitioned the Agricultural

Labour Relations Board (the Board) for the review of

mediator’s decision. The Board denied Hess's petition.

Hess then sought an order setting aside the Board's decision,

contending in the main that the statutory provision under the

Labour Code which makes mediation mandatory violates

principles of due process in that it unreasonably interferes

with the right of contract, denies the right of judicial

review, and is aimed at protectionism. Hess also argued that

the scheme violates equal protection, invalidly delegates

legislative authority, and is vague and overbroad. It was

Hess most apposite argument that the statutory provision

authorising a private person to mediate is an illegal

delegation of power under the Labour Code amounting to a

violation of due process under the constitution. In declaring

that neither the due process nor the right to contract laid

down by the constitution has been violated, the Court in a 2-1

ruling on July 5, 2006 held that since the enabling law

stipulates considerations to be observed by the mediator,

there is no equal protection violation. In relation to the law

delegating power to mediate, the court held:

There is no unlawful delegation of legislative power. That the

mediator is a private person rather than a publicly accountable

official or elected entity does not render the delegation

unconstitutional… The Legislature's delegation of authority to a

private party is not necessarily unconstitutional.14

The significance of the Hess decision for court ‘ordered’

mediation in Nigeria comes out with more clarity when it is

recalled that court ‘ordered’ mediation under the 2012 needs

not take place at the LMDC alone, it can happen before private

institutions. In the light of this decision, neither the Rules

nor the Law authorising court-ordered mediation in Nigeria can

be deemed unconstitutional.

3.2 Italy

As with some other European countries, Italy used the 2008 EU

Mediation Directive as an opportunity to broaden the

applicability of mediation on the domestic stage. The

objectives of the Directive are to facilitate access to ADR by

encouraging the use of mediation and by ensuring a balanced

relationship between mediation and judicial proceedings.

Through legislative decree No. 28 enacted on 20 March 2010

(2010 Decree), a mandatory mediation scheme was introduced in

order to reduce backlog of court cases.

14 As above

In period predating the commencement of the Decree, the

Italian Constitutional Court had been invited to determine the

consistency of mandatory mediation attempts with articles 24,

25 and 111 of the Italian Constitution, according to which

everyone has the right to access State justice. In at least

three consistent judgments (82/1992, 376/2000 and 403/2007) by

the Constitutional Court, the Court, reasoning that since

after mandatory mediation attempt, parties are allowed to

refer their dispute to the State judge, affirmed that it is

constitutional.15

However, with the passage of the 2010 Decree, the Bar was

critical of certain provisions, particularly article 4(3)

which imposes a duty for the lawyers to inform their client of

the possibility to refer to (voluntary) mediation. Thesame

article provides that if they fail to do so, the professional

relationship with the client is unilaterally severable by the

client, and lawyers may get no remuneration thereafter.

Another source of concern was article 8 which imposes

sanctions on a party that refuses to attend a mediation

proceeding. This has led to the challenge of the 2010 Decree

in the Constitutional Court which eventually declared same

unconstitutional for ‘excess of legislative delegation.16 A

subsequent Legislative Decree 138/2011 which had originally

reinforced article 8, providing for a fine for a party that

15GF Colombo ‘Alternative Dispute Resolution (ADR) in Italy: European Inspiration and National Problems’ (2012) 29 Ritsumeikan Law Review 7716JAMS, November 2012

refuses to attend a mediation has now been abolished by

Legislative Decree 24/3/2012, n. 27.17

It seems that the concern about the constitutionality of

mandatory mediation in Italy is around the law authorising it,

as earlier shown. As the situation in Italy unfolds in

relation to mandatory mediation, it is important to note that

2010 Decree and its subsequent amendment is distinguishable

from Nigerian approach to court ‘ordered’ mediation. In

Nigeria, court ‘ordered’ mediation is provided by domestic

laws which are validly made by an act of legislative body and

according to Order 49(2) of the 2012 Rules, costs sanctions

are only applicable against the winning party where such party

had rejected settlement offers in the course of case

management or alternative dispute resolution (ADR), arguably

at the Lagos Multi-Door Courthouse (LMDC). Hence, the

experience in Italy in relation to mandatory mediation is not

the same with approach in Nigeria as the constituionality of

court ‘ordered’ mediation here is not pursuant to an

international Directive to which Nigeria is party, but, a

product of home grown advocacy in response to tackling the

challenges of an overburdened judicial system.

3.3 England

It would seem that in England, the court can only recommend

ADR and not mandate it. Where a party refuses the17 Colombo (n 109 above)

recommendation of court, then costs sanctions can be imposed

if the party wins at the trial court.18 In the case of Halsey v.

Milton Keynes General NHS Trust,19 the court had an argument as to

whether it has power to order parties to submit their disputes

to mediation against their will. The court considered this

arguement in the light of article 6 of the European Convention

on Human Rights dealing with right to access to court.

Accordingly, it was the view of court in Deweer v Belgium that:

It is one thing to encourage the parties to agree to mediation,

even to encourage them in the strongest terms. It is another to

order them to do so. It seems to us that to oblige truly unwilling

parties to refer their disputes to mediation would be to impose an

unacceptable obstruction on their right of access to the court.

The court in Strasbourg has said in relation to article 6 of the

Convention for the Protection of Human Rights and Fundamental

Freedoms that the right of access to a court may be waived, for

example by means of an arbitration agreement, but such waiver

should be subjected to "particularly careful review" to ensure

that the claimant is not subject to ‘constraint’.20

Following the position of the European Court of Human Rights

in Deweer, the court in Halsey reasoned that the compulsion of

ADR or mediation for that matter would be regarded as an

unacceptable constraint on the right of access to the court

and, therefore, a violation of article 6 of the European

Convention on Human Rights in England. In addition, the court

noted that it is difficult to conceive the circumstances in

18Dunnett v Railtrack 2002 EWCA Civ 303).19 Halsey v Milton Keynes General NHS Trust (2004 EWCA Civ 576)20Deweer v Belgium 1980 2 EHRR 439, para 49

which it would be appropriate to exercise the power to order

ADR.21 In conclusion, the court decided as follows:

The hallmark of ADR procedures, and perhaps the key to their

effectiveness in individual cases, is that they are processes

voluntarily entered into by the parties in dispute with outcomes,

if the parties so wish, which are non-binding. Consequently the

court cannot direct that such methods be used but may merely

encourage and facilitate.

While the above decision in Halsey seems to support the

position that court in England will consider the referral of

parties to mediation against their will as unconstitutional,

the decision can be distinguished from the situation in

Nigeria. First, there is no such law in England, such as the

LMDC Law which allows, particularly in its section 16 (1)(e)

for court referred ADR services. It is also not in the rules

of courts in England, such provisions as contained in Orders 3

(11), 25(6), 49(2) of the 2012 Rules which deal in one form or

the other on the approach of court to automatic referral to

ADR and sanctions in refusal of it. And the arguments cannot

be validly made that these provisions violate the principles

of fair hearing under the 1999 Constitution in that these

provisions are in the exercise of authority and products of a

law validly made under section 36(2) of the 1999 Constitution.

More importantly, there is no provision either in the 2012

Rules or the LMDC Law which makes any determination under any

of their processes final and conclusive.

21 Deweer, para 9

3.4 South Africa

While it has not been precisely tested whether court-ordered

mediation will contravene constitutional principles or not,

and there is no clear rule of court on this, it is worthy to

note that sections 34 of the South African 1996 Constitution

provides that ‘everyone has the right to have any dispute that

can be resolved by the application of law decided in a fair

public hearing before a court or, where appropriate, another

independent and impartial tribunal or forum. The word ‘forum’,

it is contended may be interpreted as accommodating ADR

institutions for mediation process.

More importantly, it seems the court will have little or no

challenge with the constitutionality of court ‘ordered’

mediation considering that in a number of its decisions, it

has actually suggested the need for ADR, particularly,

mediation. For instance, in Port Municipality v Various Occupiers, the

Constitutional Court per Sachs J noted:

On the basis of this judgement a court involved in

future litigation involving occupiers should be

reluctant to accept that it would be just and equitable

to order their eviction if it is not satisfied that all

reasonable steps had been taken to get an agreed

mediated solution22

22 Port Municipality v Various Occupiers {2005(1) SA 217 (CC)}

4 Conclusion

In all, this piece set out to demonstrate that certain

provisions in the 2012 Rules, in relation to court ‘ordered’

mediation, such as Orders 3 (11), 25 Rule (2)(1), (6), (7),

(8), and 49(2) are consistent with constitutional guarantee,

especially, in relation to fair hearing. In addition to their

constitutionality, these provissions tend to democratise

access to justice by making alternative platform available to

parties for the resolution of their disputes. This piece has

shown the constitutionality of these provisions by arguing

that the Orders satisfy the relevant and substantial criteria

identifiable under section 36 of the 1999 Constitution in

relation to resolution of civil disputess, and are consistent

with decisions of court in some jurisdiction, and for that

reason, these orders are constitutional. Consequently, what

emerges as conclusion is that the law allowing court ‘ordered’

mediation as well as the resultant process of mediation cannot

be invalidated merely because of its variation from court-room

litigation.