A few months ago, a follower of this Column called to appreciate the thrust of alternative dispute resolution. He said at the time, that he had a legal challenge for which he desperately needed a solution. Even though we had never met in person, he probably relied on the credibility of this Column to pour out his heart to me. Having patiently listened to his story, I found that aside his legal troubles, he also had challenges of cash flow. I advised that the issues he narrated were of the kind best suited for mediation. I went at length to have him understand that his first option in a dispute with a benefactor was not litigation. Since a telephone discussion should not substitute a one –on-one legal consultation, I advised that he should approach a legal practitioner within his neigbhourhood particularly with a request to explore a non-litigious resolution.
People familiar with the style of experienced lawyers will easily attest that some legal challenges do get resolved at preliminary stages by mere legal correspondence between complainant’s counsel and party on the other side. This was why when a few days later the same fellow called to intimate me of his decision to file a lawsuit, I was shocked to my bone marrow. A lawsuit against a man upon whose charity so to say the complainant derives a significant portion of his annual income? No doubts the complainant had strong legal grounds. But from my earlier probing, using the techniques of an ADR practitioner, it was clear that what this man really needed was for his benefactor to listen to him and understand that he was being truthful and factual in his demands or claim. It was also clear that he was not particularly bothered whether or not he got the full financial demand in his claim. He would gladly accept anything, if only he can continue to work with the respondent in the fringe jobs he extends to him. So why then a lawsuit as the first option at resolving a misunderstanding between them? I was not impressed by his feeble attempt to lay the blame at the doorstep of the lawyer who had advised otherwise. The point was and would always remain who owns the dispute; client or lawyer?
My choice of the above true life story serves only as one illustration of an ever present challenge of client – attorney relationships. It is not uncommon to see some clients simply walk into law firms and hand over total control of their legal issues to counsel without as much as asking relevant questions about the options available to resolving them. It therefore follows that whenever clients are unable to express their true feelings or contribute meaningfully to issues lawyers raise for their consideration, counsel is left with no choice but to go ahead with the default option of litigation. After all, It is human nature to seek to ‘’deal’’ with an opponent in such manner as will cause him or her pains. If that is the only body language client transmits to counsel, why should the blame for the choice of process be put at the door steps of the lawyer? It is even more pathetic when people you consider as enlightened still come off to say my lawyer asked me to take this course or the other, as if they had no choice in the matter. It is for the foregoing reasons that I think the following observations culled from a publication of Harvard’s Program On Negotiation are worth noting. The passage reads:
‘’Understand your lawyer’s role and perspective. Your lawyer’s job is to educate you and advocate for you. He or she is not—and should not be—the primary decision maker on your behalf. As the disputant, you must understand not only your rights but also your options—especially your non-litigation options. ‘’The best lawyers will help you comprehend all of those alternatives. But the fact remains that lawyers make their living by giving legal advice and pursuing litigation. As a result, your incentives will never be completely aligned with those of your lawyer.
‘’Furthermore, your lawyer’s expertise is probably restricted to the domain of law. It’s incumbent on the disputants to educate themselves about other ways of resolving their differences, such as through mediation or negotiation. One way to do this is by getting second opinions from legal experts who have no financial stake in the case.
The decision to litigate should not be taken lightly, and the power of negotiation should not be underestimated. You should pursue litigation only as a last resort, staying focused on the pursuit of negotiation, underlying interests, and the goal of preserving and strengthening relationships’’.
For disputants in Nigeria, let us say it was perhaps okay ten years ago to claim ignorance of options to litigation. Not anymore. It is your right to demand some enlightenment from your lawyer in order to make an informed choice.
Who should make the decision to mediate?
