The Impact of Technology in Dispute Resolution: Virtual Mediation and Online Arbitration in Nigeria

Traditional dispute-resolution mechanisms in Nigeria have been an essential part of the country’s justice system for centuries, dating back to pre-colonial times. These practices are deeply embedded in the customs, beliefs, and social structures of the various ethnic groups across the country. Typically, they involve elders, chiefs, or community leaders who are respected for their wisdom and experience. Disputes are often resolved through dialogue, negotiation, and consensus-building, with a strong emphasis on restoring harmony within the community rather than assigning blame or imposing punitive measures. This process is informal, flexible, and tailored to the specific cultural context of each community, making it accessible and acceptable to those involved.

These traditional mechanisms are particularly effective in handling disputes related to land ownership, family matters, and other communal issues. They prioritize reconciliation and the maintenance of relationships over strict legalistic interpretations of right and wrong. However, despite their strengths, these systems face challenges, particularly regarding consistency and alignment with formal legal frameworks. In some cases, outcomes from traditional dispute resolution may conflict with statutory laws, leading to complexities when cases are escalated to formal courts. Nonetheless, traditional mechanisms continue to play a crucial role in the Nigerian justice system, especially in rural areas where access to formal courts is limited.

The integration of technology into the legal sector has brought about innovative approaches to dispute resolution. Traditional methods, often characterized by lengthy and costly court processes, are gradually being supplemented—and sometimes replaced—by technology-driven solutions. These advancements have not only enhanced access to justice but have also made dispute resolution more efficient, cost-effective, and accessible to a broader audience. The COVID-19 pandemic significantly impacted the Nigerian legal system, prompting the introduction of virtual court hearings and the widespread adoption of online platforms for legal proceedings and dispute resolution.

Key concepts such as virtual mediation and online arbitration are at the forefront of this technological shift. Virtual mediation involves resolving disputes through a mediator, with the entire process conducted online via video conferencing tools. This method offers flexibility, allowing parties to participate from different locations, thus reducing the need for physical presence and associated costs. Online arbitration, on the other hand, is a process where an arbitrator resolves disputes through online platforms. It retains the benefits of traditional arbitration, such as confidentiality and binding decisions, while leveraging technology to expedite the process. These tech-driven approaches are reshaping the landscape of dispute resolution in Nigeria, making it more adaptable to the needs of modern society.

While online dispute resolution, particularly virtual court hearings,^[1] is not new in some jurisdictions,^[2] the COVID-19 pandemic accelerated its introduction to the Nigerian legal system.^[3] The first virtual hearing in Nigeria was held by the High Court of Lagos State on May 4, 2020, in the case of The State v. Olalekan, where Olalekan Hameed was sentenced to death by hanging. Before this, virtual hearings had never been held in Nigeria, as the law had not previously recognized or provided for this type of hearing.

Virtual Mediation

Virtual mediation has emerged as a modern alternative to traditional in-person mediation, driven by technological advancements and the need for flexible dispute resolution methods. This method involves resolving disputes through online platforms, where parties and the mediator communicate via video conferencing, emails, and other digital tools. The COVID-19 pandemic significantly accelerated the shift from physical to virtual mediation, highlighting its adaptability and efficiency.

Initially, online dispute resolution (ODR) was primarily used for smaller, less complex cases. However, with the increasing accessibility of the internet and the widespread adoption of video conferencing technologies, virtual mediation has evolved to handle more intricate disputes. Today, it is widely recognized as a legitimate and effective method of dispute resolution across various jurisdictions. Ongoing improvements in technology and practices continue to enhance its effectiveness, making it a valuable complement to traditional mediation.

Difference between Traditional mediation and Virtual mediation

Traditional Mediation involves parties physically meeting at a neutral location where a mediator facilitates the discussion face-to-face. This setting fosters richer communication through non-verbal cues such as body language, tone, and facial expressions, which are crucial for building rapport and trust. The formal, in-person environment typically enhances focus and seriousness, contributing to a more engaged and disciplined mediation process. The presence of all participants in the same room allows for immediate feedback and more personal interaction, which can be instrumental in resolving conflicts effectively.

In contrast, Virtual Mediation is conducted through online platforms like Zoom, Microsoft Teams, or other dedicated ODR (Online Dispute Resolution) tools, enabling participants to join from various locations. While this method offers significant flexibility and convenience, it may lack some of the non-verbal cues present in face-to-face interactions, potentially affecting the mediator’s ability to gauge participants’ reactions fully. The virtual environment requires mediators and participants to adapt by relying heavily on verbal communication and digital tools for document sharing and interaction. This adaptation process can be effective, but it sometimes misses the immediacy and depth of communication found in traditional settings.

Benefits of Virtual Mediation

1. Efficiency and Flexibility: Virtual mediation enhances efficiency by eliminating the need for travel, which significantly reduces both time and costs for all parties involved. Participants can join from their own locations, avoiding the logistical challenges and delays typically associated with arranging in-person meetings. Additionally, the flexibility of online scheduling allows parties to arrange mediation sessions at their convenience, leading to quicker dispute resolution. This adaptability facilitates the prompt scheduling of meetings without the constraints of physical locations, further accelerating the mediation process.
2. Accessibility: Virtual mediation greatly enhances accessibility by allowing individuals to participate regardless of their geographical location, which is especially beneficial for international disputes or cases involving parties from various regions. By removing the barriers of distance and travel, it facilitates broader participation.
3. Lower Cost and Resource Efficiency: In addition to its accessibility, virtual mediation is highly cost-effective as it reduces expenses associated with travel, accommodation, and venue hire. Conducting sessions online allows parties to save money on these logistical costs, making the mediation process more affordable. Furthermore, it utilizes digital document sharing and online communication to minimize the need for physical resources, such as paper and printing materials, further lowering costs. This approach not only supports environmental sustainability by reducing waste but also enhances overall resource efficiency.

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Challenges and Potential Issues in Virtual Mediation

1. Trust and Communication:

The absence of face-to-face interaction in a virtual mediation can hinder the mediator’s ability to perceive subtle non-verbal cues, such as body language and facial expressions, which are often crucial for building rapport and trust among parties. Additionally, the physical distance and reliance on screen-mediated communication can reduce the emotional connection and engagement between participants. This emotional disconnect may affect the depth of the mediation process, making it more challenging to achieve a mutually satisfactory resolution.

2. Technical Challenges:

Participants in virtual mediation need to be comfortable using video conferencing tools and other digital platforms, but for those less familiar with technology, this can pose a significant barrier, hindering their participation and effectiveness in the process. Technical problems such as poor internet connections or software glitches can disrupt the mediation, leading to delays and frustration. These issues can interfere with the smooth flow of the session and potentially impact its overall effectiveness.

3. Security and Confidentiality:

Ensuring data protection and platform security in virtual mediation is crucial, as digital platforms can be vulnerable to breaches. It is essential to implement robust measures to maintain the confidentiality of discussions and documents shared online, protecting sensitive information from unauthorized access. Despite improvements in security features by platforms like Zoom, ongoing concerns about privacy and data security require continuous vigilance and updates to security protocols to safeguard against potential breaches and ensure a secure mediation environment.

 Potential issues with enforcing agreements reached through virtual mediation.

1. Completeness of the Agreement: Virtual mediation can sometimes lead to incomplete or ambiguous agreements due to communication limitations or technical issues. It is essential to ensure that agreements are clear and comprehensive.
2. Voluntariness and Consent: Courts evaluate whether the parties voluntarily agree to the mediated settlement. If there is evidence of coercion, duress, or lack of informed consent, the agreement’s enforceability may be compromised.
3. Public Policy Considerations: Agreements that violate public policy, such as those involving illegal activities, may not be enforced. Courts must balance the parties’ freedom to contract with the broader interests of society.
4. Fairness and Equity: Courts evaluate whether the agreement is fair and equitable. If the terms are unconscionable or there is a significant power imbalance between the parties, the agreement may be deemed unenforceable.
5. Lack of Finality: Mediated agreements do not have inherent enforcement powers, which can create uncertainty. To ensure finality, parties may need to seek additional mechanisms, such as court orders.

What is Online Arbitration?

Arbitration elements vary across legal systems, making a universal definition challenging. However, some consistent elements exist, such as parties agreeing to submit their dispute to a private individual or arbitrator for resolution. This process is based on a private agreement, not state authority, and aims to produce a binding decision rather than a compromise. Born defines arbitration as a consensual process where parties submit their dispute to a non-governmental decision-maker to deliver a binding decision based on neutral adjudication principles.

Online arbitration is a method of dispute resolution where the entire arbitration process, from filing claims to rendering awards, is conducted over the Internet. This digital approach leverages online platforms and communication tools, allowing parties, arbitrators, and witnesses to participate remotely. The process involves the submission of documents, virtual hearings, and digital evidence presentation, facilitated by secure online platforms that ensure confidentiality and compliance with arbitration rules. In Nigeria, key platforms for online arbitration include tools like the Lagos Court of Arbitration Online Dispute Resolution Portal, ADR Notable, and the Chartered Institute of Arbitrators’ online services.

Benefits of Online Arbitration

1. Speed and Efficiency: Online arbitration significantly reduces the time required to resolve disputes by streamlining procedures and eliminating the need for physical appearances. Parties can schedule hearings flexibly, leading to faster resolution of cases.
2. Lower Costs: The cost of online arbitration is generally lower than traditional arbitration, as it reduces expenses related to travel, accommodation, and venue hire. Additionally, the quicker resolution time reduces legal fees and other costs associated with prolonged disputes.
3. Cross-Border Disputes: Online arbitration is particularly effective for handling cross-border disputes. It eliminates geographical barriers, allowing parties from different jurisdictions to participate without the logistical complications of international travel, making it easier to resolve international disputes.

Challenges facing Online Arbitration in Nigeria

1. Legal and Regulatory Hurdles: A significant challenge for online arbitration in Nigeria is the lack of a uniform legal framework for recognizing and enforcing online arbitral awards. Differences in jurisdictional laws can create uncertainty about the enforceability of these awards, particularly when parties are located in different countries.
2. Concerns About Fairness and Impartiality: There are concerns regarding the fairness and impartiality of online arbitration, especially when arbitrators, parties, and witnesses cannot be physically present. Ensuring that all parties have equal access to technology and are fairly represented in an online setting can be challenging.
3. Technical Challenges: Online arbitration relies heavily on technology, which poses risks related to platform reliability, data security, and internet connectivity. Technical issues, such as system failures or data breaches, can undermine the integrity of the arbitration process and affect the enforceability of the final award.

Legal and Regulatory Framework in Nigeria:

The legal and regulatory framework governing virtual mediation and online arbitration in Nigeria is still developing. Currently, there are no specific laws directly regulating online dispute resolution (ODR), including virtual mediation and online arbitration. However, existing frameworks, such as the Arbitration and Conciliation Act (ACA) 1988 and the Lagos State Arbitration Law 2009, provide a broad legal basis that allows for flexibility in adopting virtual methods. Additionally, Nigeria’s Evidence Act 2011 recognizes electronic documents and digital signatures, supporting the use of electronic evidence in arbitration. Recent developments, like the proposed Arbitration and Mediation Bill, aim to modernize arbitration law by explicitly recognizing virtual hearings and electronic communication.

Areas for Improvement

While progress has been made, there are still gaps in the current legal framework. There is a need for explicit legislation that provides clear rules on the validity, recognition, and enforcement of online arbitral awards and mediated settlements. Furthermore, regulations should address data security, privacy concerns, and platform standards to ensure fairness and impartiality in virtual proceedings. Recommendations for further legal reforms include amending existing laws to explicitly include provisions for ODR, developing a standardized regulatory framework for online platforms, and ensuring that Nigeria’s legal system is aligned with international best practices to enhance the credibility and acceptance of online dispute resolution.

 Case Studies of Online Arbitration in Nigeria

1. Lagos Court of Arbitration Cases during the COVID-19 Pandemic: During the COVID-19 pandemic, the Lagos Court of Arbitration (LCA) handled several cases through online arbitration, leveraging digital platforms to continue proceedings despite lockdown restrictions. For example, in a commercial dispute involving a foreign investor and a Nigerian entity, the LCA utilized virtual hearings via secure online platforms, allowing parties from different jurisdictions to present their cases remotely. The case demonstrated the effectiveness of online arbitration in reducing costs and accommodating international parties, ultimately leading to a timely resolution despite global travel restrictions.
2. Chartered Institute of Arbitrators (Nigeria Branch): The Chartered Institute of Arbitrators (CIArb) Nigeria Branch has also successfully conducted online arbitration in various commercial disputes. In a notable case involving a breach of contract between two Nigerian companies, CIArb Nigeria facilitated the entire arbitration process online, from filing the initial claim to issuing the final award. The case highlighted the efficiency of online arbitration in managing voluminous documentary evidence and maintaining procedural fairness through digital communication tools.
3. Digital Platforms for Cross-Border Disputes: Another example involved an energy sector dispute between a Nigerian oil and gas company and a foreign service provider. The arbitration was conducted entirely online through the Lagos Multi-Door Courthouse (LMDC) using virtual conferencing tools and secure document-sharing platforms. This approach enabled the parties to navigate complex jurisdictional issues and logistical challenges, demonstrating the viability of online arbitration for resolving cross-border disputes effectively.

Conclusion and Recommendation

The integration of technology into dispute resolution in Nigeria, particularly through virtual mediation and online arbitration, has shown significant promise in enhancing efficiency, reducing costs, and making justice more accessible. These technological approaches have proven their value, especially during the COVID-19 pandemic, by allowing disputes to be resolved remotely and swiftly, without the need for physical presence. However, challenges such as gaps in the legal framework, concerns about fairness and impartiality, and technical limitations remain.

To address these issues, it is recommended that policies be developed and regulatory frameworks be formulated to explicitly recognize and support online dispute resolution methods. This includes creating clear rules for the validity and enforcement of online arbitral awards and mediated agreements, as well as establishing standards for data security, privacy, and platform reliability. By aligning its legal system with international best practices, Nigeria can foster greater confidence in online dispute resolution and ensure that it becomes a robust and reliable complement to traditional methods.

References

^[1] Online dispute resolution (ODR) is a broader term than virtual court hearing. ODR is the settlement of disputes through online mode of interaction between the parties. ODR is used as a term to refer to all online dispute resolution. Whereas virtual court is limited to the resolution of dispute which would ordinarily be instituted in a physical court room, virtually or online. See Lukman Ayinla and Taiye Oliyide, ‘Juridical Perspective on the Regulation of Online Dispute Resolution in Nigeria’ [2020] 7 (2) IUMJ 71. This article focuses more on virtual court hearing.

^[2] For instance, the United Kingdom. See ‘Virtual Court First Hearings’ (The Law Society, 5 December 2019) accessed 12th August 2024

^[3] Kolawole Mayomi, ‘A Case for the Virtual Hearings of Urgent Matters During the COVID–19 Pandemic and Going Forward’ accessed 12 August 2024

Contributors

Success Alabi

Associate

Ifeoma Ezenwa

Senior Associate