TRANSNATIONAL MEDIATION: LEVERAGING OPTIONS AND INTERSECTIONS FOR RESOLVING DISPUTES IN AFRICA

Being Keynote Address delivered by Chief Bayo Ojo, SAN, CON* at the ICMC 2020 Annual Conference on 1^st December 2020

1. Introduction
   1. Distinguished Participants, Ladies and Gentlemen.

Let me start by thanking the President of ICMC, Chair Conference Planning Committee and the organisers of this Conference for inviting me to give this keynote address. Though the theme for the Conference is “Transnational Commercial Mediation: Leveraging Options and Intersections in Africa”, I was given the liberty to choose my topic provided it is analogous to the theme. I have therefore decided to speak on the topic ‘Transnational Mediation: Leveraging Options and Intersections for Resolving disputes in Africa’.

1. I am indeed delighted to be here even though in a quasi-virtual medium. Nine months ago, nobody could have predicted our new normal brought about by the covid-19 pandemic. Over the last century, man successfully conquered his environment. We went to the moon, we had supersonic aircraft, moved from the first, second and third industrial revolutions to the fourth which is the ICT age. But all these break throughs did not prepare us for the covid-19 pandemic where the whole world was suddenly grounded with lock downs and we all had to stay at home. Luckily for us in Africa, God Almighty took pity on us and our hot climate did not make it conducive for the virus to thrive as it has done in Europe, the US and Asia. So much for the pandemic
   1. Now, what is mediation all about? As most of us are aware, “mediation is a flexible, voluntary and confidential form of alternative dispute resolution in which a neutral third-party assists parties to work towards a negotiated settlement of their dispute.”
   1. Some of the characteristics and qualities of a good mediator include the capacity to remain impartial and neutral, even in a veritable maelstrom of controversy. It is impossible to stress sufficiently the importance of neutrality and impartiality in a mediator. Whatever other qualities of mind or sensitivity an individual brings to the role of a mediator, none ranks in importance with the mediator’s neutrality. That is one quality every mediator ought to be able to begin with.
   1. Apart from neutrality and impartiality, some other characteristics parties look for in a mediator are that he should be none judgmental, empathetic, effective listener and patient.
   1. Non-judgemental

The mediator’s role is to help parties reach an agreement whose terms are acceptable to them, even if the mediator disagrees with the wisdom or fairness of the resolution. One difficult task for beginning a mediation is for the mediator to purge from his or her vocabulary and mannerisms those unconscious words and gestures that may be regarded as judgmental. We are all familiar with the intensive active listener’s effort to encourage further talk by nodding vigorously in response to a narrative tale. While the nods signal encouragement to the response of the talker, they also may suggest to another watching disputant that the mediator believes every lie and half-truth the opposite party is spewing out.

1. Empathetic

The mediator must be able to appreciate the fears, history and perceptions of every party that underlay the discussion. Only then will the parties have confidence that the alternative solutions developed by a mediator will not be blind to their needs.

1. Effective Listener

The parties must feel that the mediator has clearly heard their presentations. From the parties’ perspective, a person who is constantly talking or asking questions may have some purpose in mind, but whatever it is, it is probably not consistent with that of the parties.

1. Patient

The parties do not want to be treated by the mediator in a fashion similar to the one accorded them by the faceless bureaucracy. They want someone who will assist them no matter how long it takes.

While all of these interpersonal qualities are essential for ensuring and maintaining effective communication, mediation involves much more. Disputants look to the mediator for intellectual qualities, as well as sensitivity, and expect the mediator to also be intelligent, flexible, imaginative, resourceful and persuasive.

1. Intelligent

Parties consciously or unconsciously expect the mediator to help them resolve their dispute. While they must educate the mediator about their problem, they do not want to be handicapped by a mediator’s slowness of mind; nor do they expect to have to educate the mediator about the world in which they live and operate.

1. Flexibility

The fluidity of the discussion between the parties must be enhanced, not retarded by the mediator’s presence.

1. Imaginative and Resourceful

If the mediator cannot add fresh ideas or perspectives to the problem, then his or her presence contributes little to the discussion.

1. Forceful and persuasive

The mediator must be able to convince or persuade parties to demonstrate flexibility. That does not mean that the mediator must talk a lot; rather, when he or she talks, it must be effective.

Finally, there are some intangible aspects the parties to a dispute expect to find in a prospective mediator. They must be respected persons in the society and none defensive

1. Respected persons in the community

Everybody thinks his or her problem is important. If the mediator is intoxicated when he or she appears for the hearing, then that reflects not only on the mediator’s character but also on the program of mechanism offering the mediation services. The signals, in such a case, are clear; the problem is unimportant. On the other hand, if the mediator is well trained and treats the parties as he or she would his or her own family then the parties feel that they are getting the kind of attention they deserve.

1. Non-defensive

The mediator cannot be putty in the parties’ hands. Rather, the mediator is often someone who bears the brunt of the parties’ healthy ventilation of spleen and frustration. If a party makes a derogatory remark about the courts or the competence of the mediator and the mediator responds defensively, then the goal of promoting effective dialogue is vitiated. Indeed, the mediator quickly may become a party to a new dispute.

1. The next question is, to what end are these personal qualities to be applied? While the basic function of a mediator is to help parties identify the issues in a dispute and develop mutually acceptable solutions, this simple description encompasses a number of discrete and overlapping tasks, including for example, those of a:
2. Chairperson

Mediationis a quasi-formal process for handling conflict, subject to certain ground rules and structure, which it is the function of the mediator to apply evenly and effectively.

• Catalyst

The mediator’s presence introduces new dynamics to the discussion of a dispute by the parties. The skill of mediation is to make those dynamics a positive and productive one.

• Educator

Each party has needs, aspirations, and frustrations. The mediator’s function is to make certain that each side understands the constraints of the other.

• Translator

Progress in developing mutually satisfactory resolutions to parties’ needs, frequently hinge on the ability to discuss issues and possible settlement in objective and non-judgmental terms that only the mediator can articulate in the passion of a heated dispute.

• Resource expander

The mediator sometimes identifies or provides access to information or support services of which the parties are unaware.

• Reality tester

No agreement will emerge if proposed solutions are inflated. The mediator’s function is to confront the proponents of such proposals with an understanding of their consequences in the real world.

(g)    Scapegoat

That soaks up the parties’ feelings and frustrations and helps them channel their energies into positive approaches to the issues.

(h)    A scribe

This is one who writes or assists in the writing of the agreement, checking that all issues are covered and that all terms of the agreement are clear.

1. Mediation will succeed if the mediator, as a neutral facilitator, is potentially in a better position than any party or representatives to:
2. win the trust of all the parties
3. overcome emotional blockages
4. suggest new avenues to explore
5. focus the parties on the problem
6. win approval for settlement proposals
7. overcome deadlock and help save face
8. explore settlement proposals in more depth
9. assist parties to realistically assess their own case
10. help one party to understand the other party’s case
11. probe each party’s case for needs, interest and positions
12. facilitate the communications and negotiations between parties
    1. Now, let us apply these concepts to events in Africa and see how mediation has been employed as a useful tool to resolve conflicts. Thereafter, I shall examine commercial mediation and then give my conclusion.
    1. In 1978, the then United States of America’s President Jimmy Carter successfully mediated a dispute known as the Arab Israeli conflict, that could have snowballed into a catastrophe between the then Egypt’s Anwar Sadat and Israel’s Menachem Begin. In summary, what happened was that on the 12th day of September, 1978 Anwar Sadat and Menachem Begin decided the negotiation between them was over. They were ready to pack their bags and leave a meeting convened by President Carter in “Camp David”.[1] Both men (Sadat and Begin) were about to leave when Carter asked to walk with them each, and talk once again about what the obstacles were to getting to an agreement.
    1. When Carter asked them how they felt about the Sinai [the subject matter of their dispute], Begin told him, “we must hold the Sinai, it is about our security”. Sadat, on the other hand said “we must have the Sinai returned to us, it is about our national pride and honor”.[2] Sadat and Begin, humanized to each other and finally began to understand and appreciate each other’s positions and eventually reached an agreement.[3] The agreements reached as a result of President Jimmy Carter’s intervention represents a powerful move towards peace in the region and at the end of the day, produced the “Camp David Accord”.[4] That was not all as both Sadat and Begin shared the 1978 Nobel Peace Prize as a result of the accord.[5]
    1. The Nigeria/Cameroun land and maritime dispute is another classical case of successful mediation in Africa. This was a situation where the then United Nations Secretary General Kofi Anan mediated between Nigeria and Cameroun by bringing the Presidents of the two countries together to accept the outcome of the ICJ Judgement even before the judgement was delivered. Furthermore, the Green Tree agreement was signed after the judgement was delivered to enable successful implementation.
    1. In Africa, as is the case with every relationship, governments occasionally have conflicts and their programs are often halted by widespread peace, security and other growth-related concerns.[6] As a matter of fact, many countries in Africa have continued to face a heightened risk of economic loss and/or deprivation and efforts to resolve this state of affairs has only plunged the continent into protracted struggles.[7]
    1. While trying to put this paper together, I came across an article posted online by “Nico Colombant” captioned “African Mediation Efforts Have Mixed Results”.[8] In that article, the writer expressed the view that Africa has a history of producing mixed results on mediation efforts to end conflicts; and, that while there are many examples of failed mediations in Africa, the fair number of others that appeared initially to be successful eventually came apart at the implementation stage. In his view, this characterizes mediation efforts in Africa.[9] In reality, I cannot agree more with his view.
    1. Historically, transnational commercial mediation spans the globe and has been used everywhere.[10] Relating this to Africa, the following points are worth mentioning:
13. Transnational Commercial Mediation has become a part of a more complicated process that involves numerous variables and indeed, has become a variable itself in determining the final outcome of the more extensive process of conflict resolution.[11]
14. Governments have become more disposed to accept mediation due to its perceived capability of providing greater benefits than the adjudicatory modes of dispute resolution;[12] and
15. There is scarcely a major transnational conflict that has not been made a subject of mediation efforts.[13]  
    1. It appears that African states do not view transnational commercial mediation as a specialist endeavor.[14] Rather, it is considered and undertaken as a form of ‘tough diplomacy’ and its main techniques are persuasion, bargaining and the exercise of leverage with little emphasis on the application of mediation skills.[15] This concept is reinforced by the appointment of mediators on the basis of their political stature as against the more important considerations like mediation skills and experience.[16] Examples of appointments on the basis of political stature abound in Africa. For example, the late former Tanzanian President, Julius Nyerere was appointed as mediator in Burundi in the mid-1990s and which appointment was later followed by that of Nelson Mandela. The same applies to the appointment of Kofi Annan in Kenya.[17] and recently President Goodluck Jonathan in Mali.
    1. Susskind and Babbit captured this aptly when they said[18]

“Many times, the leaders of by standing countries are tapped to play mediator roles because of their acceptability to the parties rather than their prior mediation experience. While all experienced diplomats understand at least the rudiments of mediation, most are not skilled in the art or science of the process”.

• Brief Overview

An acceptable definition of Transnational Commercial Mediation will depend on the particular approach and the discipline from which it is viewed.[19] However, a common denominator is that it is an engagement both at the inter and intra state conflicts levels by an external actor such as the AU, ECOWAS etc. or even private individuals.[20] Another denominator is that it is integral to peacemaking and has the potential to be instrumental in preventing, managing and ending conflicts in Africa.[21]

• The need for peace in Africa and even the world at large through ADR mechanisms such as mediation cannot be overemphasized because by nature, parties sometimes lock themselves up in deep-rooted conflict and regard each other with extreme mistrust and animosity.[22]
  • For instance, in conflict situations, parties often hold the initial and sometimes, long-lasting view that:[23]
• their differences are irreconcilable;
• their own position is non-negotiable and therefore view the conflict in zero-sum terms;
• an attempt at mediating will lead to unacceptable compromises;
• the process of mediation entails talking to ‘the enemy’ and the prospect of compromising core values in order to reach a settlement; and,
• they will lose face in the eyes of their supporters and be outmaneuvered by their opponent’s negotiating tactics.

For the above reasons, they are reluctant to engage in peace talks even when they have begun to contemplate a resolution of their conflict.[24]

• Several examples abound that justify each of the five (5) points mentioned above but I will only give the one that relate to the point that in Africa, parties often consider that the process of mediation entails talking to the enemy and the prospect of compromising core values.
  • In 1989, after Liberia had been plunged into war when rebels led by Charles Taylor sought to oust the despotic Samuel Doe, the Economic Community of West African States (ECOWAS) formed a mediation committee and a military force known as ECOMOG. Dominated by Nigeria which had backed Doe, ECOMOG destroyed its own claim to neutrality by targeting Taylor and arming rival factions.[25]
  • Anthony Nyakyi, the then UN Secretary-General’s Special Representative to Liberia had this to say:[26]

“the enmity between Taylor and Nigeria was the main impediment to securing a lasting peace agreement.”

The question to ask and which is discussed next is whether in the first place, there is any good reason for Transnational Commercial Mediation in Africa.  

• Any Justification for Transnational Commercial Mediation in Africa?
  • Those who support Transnational Commercial Mediation in Africa do so on the ground that:
• It is less expensive in terms of costs and time compared with Arbitration and other ADR Mechanisms[27]

The 2010 ICC chart for instance, compared the average cost and time of international commercial arbitration and mediation.[28] The findings as to the time components related to mediation are as follows:

Preparation: 3-5 days

Hearing: 1-2 days

Overall Resolution Time: 2-3 months

The same 2010 ICC chart also noted the average total Costs for an international arbitration with 3 arbitrators to be US$2,836,000.00, while that of international mediation with one mediator to be US $120,000.00.[29] Furthermore the AAA International survey of 2006 of the Fortune 1000 companies noted that in seventy-seven (77%) percent of mediated cases, the overall costs of resolving the dispute were reduced and that in eighty (80%) percent of the cases mediated, mediation also reduced the total time to resolve disputes.[30]

1. It Preserves Future Business Relationships and Reputation of Parties[31]

The view is that mediation, being a conciliatory process, provides parties with the opportunity to reach an agreed settlement of their dispute resulting in a solution acceptable to both sides.[32] This aspect of mediation also allows for and enhances future business relationships between them.[33] Mediation by its nature requires each side to understand and negotiate with the opposite party. With the assistance of the mediator, parties are able to re-establish the trust that was compromised as a result of the dispute.[34] Their firm view is that Mediation, unlike arbitration, is more about how parties can make their business relationship work better in the future.[35]

iii.         It Enables Parties Gain Control over the Process.[36]

Since Mediation is less formal when compared to Arbitration, parties are able to work together to select the mediator; the location and language of the mediation; the rules they wish to apply; the method of mediation they prefer to use i.e. evaluative, facilitative, etc; whether or not to engage in negotiations during the mediation, to what extent and for how long to do so; whether to exchange information, documents and experts’ reports during the mediation, and to what degree; whether to choose to accept or reject proposals or respond to proposals as they please; whether to choose to terminate the mediation process whenever they want to; and whether or not to craft the terms and conditions of a mediation settlement agreement (among several others).[37]

iv.        It Enable Parties Gain Control over the Outcome and Remedies[38]

In contrast to arbitration which can offer only a limited range of remedies to resolve a dispute, proponents of transnational commercial mediation are of the view that there are virtually no limits on what kinds of remedies and conditions the parties can agree to in their Mediated Settlement Agreement (MSA) as long as the terms and conditions are not illegal, or against the public policy of the jurisdiction.[39]

• Unlike in arbitration, remedies in a transnational commercial mediation may include but are not limited to agreeing to settle existing dispute; settling part of their dispute and arbitrating the remaining issues; undertaking a future business relationship; maintaining or expanding old agreement into new endeavors; covenanting not to compete; specific performance as to some aspects of the dispute; structuring settlements with terms, conditions and times for payouts; earn-outs; apologies (which in some cultures are very important); and details on the specifics of how the MSA would be implemented, as well as any pledge of assets related to securing the implementation etc.[40]
  • They hold the view that freedom to decide on the terms and conditions of the outcome of a dispute is an important factor that makes transnational commercial mediation appropriate and attractive for resolving international business disputes in Africa.[41]
• What to Bear in mind in order to effectively Utilize Transnational Commercial Mediation in Africa
  • In order that Transnational Commercial Mediation may thrive in Africa, the following points are worth considering:
• Enforceability of Contractual Mediation Agreements[42]

The enforceability of contractual agreements to mediate will obviously go a long way to contribute not only to the development, but success of transnational commercial mediation in Africa.[43] For example, a mediation agreement which sets out the specific conditions and time for triggering and/or terminating the mediation; the name of the international mediation service provider; the mediation rules to be used (e.g., ICDR, ICCADR Rules, LCIA, CPR, UNCITRAL Conciliation Rules); the substantive law to be applied during mediation; the location where the mediation will take place; and, the language in which the mediation will be conducted (among others), will be of significant consideration in the enforceability of such an agreement by a court and will certainly facilitate a more efficient and streamlined mediation in Africa.[44]

The terms of the agreement to mediate should however set out with specificity the procedure parties have to follow in setting up and commencing the mediation; indicate at what point in the dispute the mediation ought to commence; commit parties to participate in mediation; set out the location, language and which mediation rules to use; the substantive law to be applied during the mediation; and specify at what point and under what circumstances the mediation efforts will be considered fulfilled and terminated.[45]

• Selection of the Right Mediator[46]

Selecting an experienced mediator is very crucial in preparing for a transnational commercial mediation in order to increase the chances of a successful mediation process.[47] Knowledge by the mediator of the substantive aspects of the dispute and the mediator’s prior experience, degree of trans-cultural sophistication and familiarity with the cultural, commercial and legal issues involved in the particular dispute is equally important.[48] If parties are unable to agree on the choice of a mediator, they can consider the recommendations and methods of selection that may be offered by existing ADR institutions.[49]

• Role and Powers of the Mediator in addition to the Method of Mediation[50]

Another important consideration for parties and counsel in preparing for transnational commercial mediation is the method of mediation to be used by the mediator; that is, should the mediator be “facilitative” or “evaluative” in his/her approach; and, how proactive should he/she be in so far as presenting settlement proposals.[51] The answer to these questions may well depend to some degree, on which mediation rules are used. For example, Rule 7 of the ICDR Mediation Rules gives the mediator the option to make oral or written recommendations for settlement. Likewise, Article 7 (4) of the UNCITRAL Conciliation Rules allows the conciliator to make a proposal for settlement at any stage of the proceedings.[52]

It is advised that in any transnational mediation, the role and authority of the mediator, mediation rules selected and the method of mediation to be used should be set out and clarified upfront by parties in their dispute resolution agreement or by mutual agreement during the dispute. The power and scope given to mediators pursuant to some of the international mediation rules include the power to recommend settlements, to investigate the facts and law of the dispute, and to issue a written report with the mediator’s recommendations.[53]

• Language of the Mediation[54]

The language of the mediation is significant in any transnational commercial mediation particularly in the selection of the mediator and even in the terms of the agreement to mediate.[55]

The mediator is expected to be proficient in the language selected for the mediation and is also expected to be able to communicate effectively with parties and their counsel. If this important item is not addressed in the parties’ agreement to mediate, it may be decided by the mediation rules selected.[56] As an example, Rule 18 of the ICDR Mediation Rules provides that “… if the parties have not agreed otherwise, the language(s) of the mediation shall be that of the documents containing the mediation agreement.” Under Article 5.5 of the LCIA Mediation Rules, the mediator decides “… the language(s) in which the mediation will be conducted.” Under Article 5.4 of the ICC ADR Rules, the agreement of the parties control the language to be used in the mediation but if there is no agreement, the mediator then decides the language or languages to be used and Rule 3.4(c) of the CPR European Mediation Procedure Rules provides that “…. unless otherwise agreed by the parties, the mediator decides the language in which the mediation is to be conducted and whether any documents should be translated.”[57]

Parties and their counsel should always anticipate and prepare for potential language factors. Furthermore, qualified interpreters should be used if they require assistance with accurate verbal communications.[58]

• Cultural Considerations[59]

It is essential to investigate, anticipate and prepare for cultural factors before attending the mediation. The reason is that a person’s culture and legal training (i.e., common law vs. civil law), and the “legal culture” of his/her practice experience is very likely to have an impact (positive or negative) on his/her approach and attitude towards the process.[60]

The parties and their counsel, as part of their preparation, need to have an understanding of the communication patterns and norms (verbal and nonverbal) of the opposing party and their counsel.[61] Areas of concern include “high context cultures” (information found in context which may not always be verbal), and of “low context cultures” (communicating directly and in straightforward manner as well as relying on verbal communication).[62]

• Timing of the Mediation[63]

In deciding at what point in the dispute the mediation should commence or in proposing mediation during an arbitration process, parties need to consider the timing for the commencement of the mediation, the availability of documents and evidence as well as the cost of making that evidence available.[64]

Knowledge of the law applicable to the dispute could also affect the timing of when the mediation is held. For instance, an early mediation of a dispute that is otherwise subject to arbitration may not allow for the parties to develop an in-depth analysis of the legal principles applicable under the law of the contract to the facts and legal issues of the dispute and this may in turn diminish the likelihood of a successful mediation.[65]

• The Law Applicable to the Mediation Settlement Agreement (MSA)[66]

Knowledge of the law should also include knowledge of the law of the jurisdiction where the mediation is held and/or where an MSA that is converted into an arbitration award by consent would be enforced.[67] This is essential because there might be the need to determine whether an MSA reached by parties in a dispute otherwise subject to arbitration but reached before an arbitrator is appointed, which is then turned into a consent arbitration award by the mediator appointed as arbitrator, would be recognized and enforced under the law of the jurisdiction where the mediation was held and/or under the law of the jurisdiction where the agreed arbitration award would be enforced.[68]

• Mediating the Entire Dispute or Only Components Thereof[69]

Contractual transactions have become much more complex in international business transactions.[70] For instance, there could be: (i) a single contract with bilateral relationships; or (ii) a single contract with multiparty relationships; or (iii) multi contracts with multiparty relationships; or (iv) multi contracts with bilateral relationships. Several contracts or agreements such as (i) contract of sale; (ii) licensing agreement; (iii) contract of carriage; (iv) contract of insurance; (v) agreement of payment; and (vi) agreement for dispute resolution (to mention just a few) may also need to be reached for that singular transaction.[71]

• It is worth pointing out that not every component or issue of a transnational dispute may be suitable for mediation.[72] In international commercial disputes where a great deal is usually at stake monetarily and in other ways and where the legal issues to the dispute are complex (e.g., choice of law, application of mandatory law, cross-border regulatory issues, jurisdictional matters, extraterritorial application of evidentiary privileges, etc.), mediation of the entire dispute may be more difficult.[73] Consideration should therefore be given to mediating selective components or issues of the dispute and arbitrating fundamental issues of law that may be involved or to the more complex and/or adversarial factual components of the dispute.[74]
  • The point being made here is that the mediation decision might become whether to address the entire dispute at mediation or to consider mediating only selected components of the dispute and arbitrating the others. Be that as it may, the best approach would be to mediate and make the best effort to resolve the entire dispute, if possible, and take control over the terms and conditions of the resulting MSA and of the consent arbitral award resulting from the MSA.

This address will not be complete if the problems associated with Transnational Commercial Mediation in Africa are not considered and/or discussed.

• Drawbacks to International Commercial Mediation in Africa
  • Those who oppose the idea of Transnational Commercial Mediation in Africa have identified the following points:
• Voluntariness of Parties to Participate in the Process[75]

The extent of the effectiveness of an agreement to mediate is limited in its efficiency by the parties’ willingness to negotiate in good faith.[76]

Mediation, by its very nature, gives the parties control over the negotiation process but this control also allows either of them to terminate the mediation at whatever time they desire.[77] The risk of one party walking away from mediation always exists and this often discourage them from making good faith effort to attempt resolving all or some of the components of their dispute.

1. Confidentiality[78]

Confidentiality is critical in any process of mediation.[79] In a transnational commercial mediation, the scope and extent of confidentiality protection can and does vary from country to country as well as among the various international mediation rule providers.[80] This consideration takes greater importance if the mediation effort does not succeed because the information shared during mediation is then known to the other party even if that information is not admissible in a court or in a tribunal. Besides, the mediator would have become aware of confidential information from each of the parties during private caucuses.[81]

The issue of confidentiality is a risk factor in international commercial mediation that must be considered especially in Med-Arb proceedings where the mediator may also be the arbitrator.[82] This is an area that must be carefully investigated and considered by counsel; i.e.: counsel should find out what law applies to confidentiality of mediation in the jurisdiction where the mediation is held; and, what do the international mediation rules chosen by the parties provide about the confidentiality of mediation communication.[83]

1. Enforceability

In transnational commercial disputes, additional attention needs to be given to how a mediation settlement agreement (MSA) will be enforced outside the jurisdiction where the mediation takes place.[84] This is because pursuing enforcement of a transnational mediation settlement agreement on a breach of contract basis in the local court of a foreign country can take significant time or be expensive and can be a much less reliable enforcement tool.[85]

Mediation is often underutilized at the transnational level because of uncertain enforcement practices of MSAs in various jurisdictions.[86] While some nations have promoted legislation for the summary enforcement of mediation settlement agreements obtained by parties in the context of a transnational commercial mediation or arbitration, these nations differ as to the degree of the “arbitral context” required in their legislation to record a settlement agreement as an arbitration award.[87]

Some of the practices put in place to enable enforcement of an MSA include:

1. Arb-Med-Arb

The Arb-Med-Arb approach begins as arbitration but at some point in the process, parties try to settle the dispute through the use of mediation.[88] A suggestion was recently made that arbitral institutions should consider incorporating into their arbitration rules a short “window” of time to permit the parties seek a resolution of their dispute outside the arbitration process by requiring a temporary suspension of the arbitration so that a settlement may be attempted through mediation.[89]

Under this method, if the parties are not able to reach an agreement (in whole or in part) during the mediation effort, the arbitration process will then be continued so that the arbitrator can hear and determine the matter and enter an award based on adjudication. Any issues that may have been resolved at mediation would be incorporated by consent into the arbitration award.[90] If the parties do reach an agreement of the entire dispute at mediation, their agreement will then be entered by the arbitrator, by consent, as an arbitration award enforceable under the New York Convention.[91]

In other words, for greater likelihood of the enforcement of an arbitral award under the Arb-Med-Arb process, the mediation settlement agreement should be reached as a result of a process which commenced as an arbitration of an existing dispute, and not a process which began as a mediation, and was later turned into an arbitration process after an MSA was reached for the sole purpose of entering an agreed award.[92]

• Med-Arb

Med-Arb is a method wherein the arbitrator can act as an arbitrator and/or a mediator during the same procedure.[93] One advantage of this method is that parties can settle the entire matter at mediation, or in the alternative, come to an agreement at mediation on certain components of the dispute.[94] As to those components, the arbitrator can function as a mediator, resolve those specific issues by agreement and incorporate the mediated settlement agreement into the arbitral award rendered by the “arbitrator” at the conclusion of the process.[95]

In Med-Arb, the arbitrator is able hear both sides of a dispute during an adversarial hearing with presentations of legal evidence and if the arbitrator feels he/she has obtained sufficient information, the arbitrator can then assume the role of a mediator to assist the parties obtain a settlement on part of, or the entire dispute.[96] As to the components of the dispute not settled during the mediation phase, the arbitrator will hear and decide those as part of the arbitration phase of the process and incorporate his decision on those issues into the arbitral award.[97]

6.0      Conclusion

Given the shift in Africa’s relationship with international and regional organizations, the time has come to pursue more advanced mediation strategies and tactics in order to prevent, manage and resolve conflicts in the continent. The time has also come to adopt specialized and systematic approach to mediation; institutionalize mediation; establish measures to learn from experiences; record lessons for future best practice; and, make an in-depth discussion to inform the development of a comprehensive transnational mediation strategy. The United Nations Convention on International Settlement Agreements Resulting from Mediation otherwise known as the Singapore is a very useful instrument in this regard. Similarly, the dispute resolution mechanism that is being developed under the African Continental Free Trade Area Agreement will also compliment this.

I thank you all for listening and wish you all a successful conference.

*Chief Bayo Ojo, a Senior Advocate of Nigeria,was called to the Nigerian Bar in 1978 after graduating from the University of Lagos in 1977. He obtained a LL.M from the London School of Economics and Political Science, University of London in 1982 and later got admitted as a Solicitor of the Supreme Court of England and Wales. He is a former Attorney General and Minister of Justice of Nigeria, past President of the Nigerian Bar Association and past Chairman of the Chartered Institute of Arbitrators, Nigeria Branch, past member of the Board of Trustees of the Chartered Institute of Arbitrators, London, former member of the ICSID Panel of Arbitrators, Washington, the Permanent Court of Arbitration, Hague and the United Nations International Law Commission in Geneva, President of the African Users’ Council of the LCIA and alternate Chairperson of the UNESCO Appeals Board in Paris. He is a Chartered Arbitrator who has acted as counsel, sole arbitrator and member of panel in numerous domestic and international commercial arbitrations including at the ICC, ICSID, LCIA and AAA. He is a Fellow of the Institute of Chartered Mediators and Conciliators of Nigeria and President of the African Arbitration Association. He is the Editor-in-Chief of the Nigerian Journal of Arbitration and Mediation, African Journal of Arbitration and Mediation and a Patron of the Nigerian Society of International Law. He is a recipient of the National Honour of Commander of the Order of the Niger (CON).

---

[1] George Lenczowski, “American Presidents and the Middle East”, Duke University Press, 1990, p.164.

[2] Feron, James, “Menachem Begin, Guerrilla Leader Who Became Peacemaker”, The New York Times, 15 February 2009.

[3] Jimmy Carter Library, “Framework for the Conclusion of a Peace Traety between Egypt and Isreal”, Archived 16 February, 2013.

[4] Stein, Kenneth “Heroic Diplomacy: Sadat, Kissinger, Carter, Begin and the Quest for Arab-Israeli Peace”. Taylor & Francis, 1999, pp. 228-229.

[5] http://www.en.m.wikipedia.org

[6] Emma Elfversson, “Providing Security or Protecting Interests? Government interventions in violent conflicts in Africa”, published ON 29/10/ 2015 by SAGE Journals.

[7] Aremu, Johnson Olaosebikan, “Conflicts in Africa: Meaning, Causes, Impact and Solution”, African Research Review Journal, Vol 4(4), pp. 549-560.

[8]  Posted online at Http://www.voanews.com

[9] Michael Cornish, “The Role of Mediation in International and Intra-national Conflict”, Journal of the Institute of Arbitrators and Mediators,  2011, Vol. 30(2), pp. 1-5.

[10] Laue J, “Contributions of the Emerging field of Conflict Resolution”, 1991, pp. 300-332 in “Approaches to Peace: An Intellectual Map, W.S.Thompson and K.M.Jensen, eds. Washington, D.C.: United States Institute of Peace.

[11] Fox William, “The Wisdom of International Commercial Mediation and Conciliation”, Journal of Transnational Dispute Management, 2012, 4(2), pp. 1-14.

[12] George W. Jr, “The Resolution of Transnational Commercial Disputes: A Perspective from Africa”, Journal of Annual Survey of International and Comparative Law, 1999, Vol. 5(1), pp. 13-28.

[13] S. I. Strong, “Applying the Lessons of International Commercial Arbitration to International Commercial Mediation: A Dispute System Design Analysis”, University of South Africa School of Legal Studies Research Paper No. 2018-01.

[14] Ronan Feehily, “Commercial Mediation: Commercial Conflict Panacea or an Affront to Due Process and the Justice Ideal”, The Comparative and International Law Journal of South Africa, 2015, Vol. 48(2), pp. 317-358.

[15] Laurie Nathan, “Mediation and the African Union’s Panel of the Wise”, Crisis States Discussion Paper No. 10, June 2017.

[16] Jacob Bercovitch and Gerald Schneider, “Who Mediates? The Political Economy of International Conflict Management”, Journal of Peace Research, 2000, Vol. 37(2), pp. 145-165.

[17] Charles B Craver, “The Use of Mediation to Resolve Community Disputes”, Journal of Law and Policy, 2015, Vol. 48(1), pp. 231-262.

[18] See their Article titled “Managing a Mediation Process”, First Published in 2008, USA.

[19] Bruno Zeller and Leon Trakman, “Mediation and Arbitration in Africa: The Process of Enforcement”, Uniform Law Review, 2019, Vol. 24(2), pp. 449-466.

[20] Donya Alinejad, “Careful Co-presence: Transnational Mediation of Emotional Intimacy”, SAGE Journals, 2019, Vol6(7), pp. 44-56.

[21] Eunice C, “Enforcement of International Mediated Settlement Agreements in Africa: A Path Towards Convergence”, African International Arbitration Journal, 2018, Vol. 15(1), pp. 1-27.

[22] Eun Grace Park, “International Commercial Mediation Involving Parties from different Cultures – The Different Languages of Negotiation”, Dispute Resolution Journal, 2017, Vol. 71(4), 1-9.

[23] Jannie Malan, “Community Based Reconciliation in Practice and Lessons for Africa”, African Journal of Conflict Resolution, 2016, Vol. 20(1), 21-32.

[24] Mi Khalil, “Conflict Resolution in Africa”, Journal of African Economies”, 2010, Vol.9(3), pp. 295-322.

[25] Susan Osnos, “Waging War to Keep Peace: The ECOMOG Intervention and Human Rights”, Journal of African History, 1993, Vol. 5(6), pp. 144-176.

[26] Lauie Nathan, “When Push Comes to Shove, The Failure of International Mediation in African Civil Wars”, Journal of the University of Notre Dame, 1999, Vol. 18(9), 343-397.

[27] Veronika Vanisova, “Current Issues in International Commercial Mediation”, Charles University in Prague Faculty of Law Research Paper No. 2019/II/5, posted on 2 July, 2019.

[28] Ricardo J, “International Commercial Mediation: A Supplement to International Arbitration”, available online at www.uww-adr.com

[29] Ibid.

[30] David B. Lipsky, Ariel C. Avgar and J. Ryan Lamare, “Organizational Conflict Resolution and Strategic Choice: Evidence from a Survey of Fortune 1000 Companies”, Cornell University Journal, 2017, 13(2), pp. 27-42.

[31] George W. Coombe Jr, Supra, Note 12.

[32] Michael Emerson, “Mediation: Achieving Client Driven Solutions and Preserving Business Relationships”, available online at www.jdssupra.com

[33] S. I. Strong, Supra, Note 13.

[34] Don Peters, “It Takes Two to Tango, and to Mediate: Legal Cultural and Other Factors Influencing THE Reluctance to Mediate Commercial Disputes”, Richmond Journal of Global Law and Business, 2010, Vol. 4(4), 1-4.

[35] Christopher W. Moore, “The Mediation Process: Practical Strategies for Resolving Conflicts”, (2ed, 1996)

[36] John Lande, “Getting the Faith: Why Business Lawyers and Executives believe in  Mediation”, Harvard Negotiation Law Review Journal, 2000, 13(7), 169-175. 

[37] David B. Lipsky and Ronald L. Seeber, “In Serach of Control: The Corporate Embrace of ADR”, International Journal of Dispute Resolution, 2018, Vol. 13(3), pp. 145-161.

[38] Ernest Uwazie, “Alternative Dispute Resolution in Africa: Preventing Conflict and Enhancing Stability”, Journal of Strategic Studies, 2011, Vol. 6(8), 14-26.

[39] Law Reform Commission, “Alternative Dispute Resolution: Mediation and Conciliation”, available online at https://www.lawreform.ie.com

[40] Caroline Rees, “Mediation in Business Related Disputes: Objections, Opportunities and Challenges”, Corporate Social Responsibility Initiative Working Paper No. 56. Cambridge, MA: John F. Kennedy School of Government, Harvard University.

[41] Thomas Gaultier, “Cross-Border Mediation: A New Solution for International Commercial Dispute Settlement”, NYSBA International Journal of Dispute Resolution, 2013, Vol. 26(4), pp. 38-53.

[42] Cathleen Payne, “Enforceability of Mediated Agreements”, Journal of Dispute Resolution, 2014, Vol. 1(2), 385-405.

[43] Eisenberg, “Private Ordering Through Mediation”, Harvard Law Review Journal, 2014, 63(7), 89-104.

[44] Bruno Zeller and Leon Trakman, “Mediation and Arbitration: The Process of Enforcement”, Uniform Law Review Journal, 2019, 24(2), 449-466.

[45] Maryam Salehijam, “Mediation Clauses: Enforceability and Impact”, 2019, Singapore Academy of Law Journal, Vol. 31(8), 598-636.

[46] Treasa Kenny, “Developing the Conversation about Mediation”, Journal of Mediation and Applied Conflict Analysis, 2014, 44(7), 67-84.

[47] Andrea Marighetto, Alessandra Sgubini and Mara Prieditis, “Arbitration, Mediation and Conciliation: Differences and Similarities from an International Business Perspective” available online at https://www.researchgate.com

[48] Martin Brink, “Corporate Mediation: A Proposition”, Corporate Mediation Journal, 2016, Vol. 1(1), 1-10.

[49] Mohammad Aminuddin Haji Abdullah, “An Investigation of the Development of Mediation in UK Construction Industry”, being a Thesis submitted to the University of Manchester for the Degree of Doctor of Philosophy, 2015.

[50] Ali Qtaishat, “Power Imbalances in Mediation”, Asian Social Science Journal, 2018, Vol. 14(2), 75-80.

[51] Boulle L, “Mediation: Principles, Process and Practice”, [Butterworths Publication, UK], 2016.

[52] Ellen E. Deason, “Combinations of Mediation and Arbitration with thesame Neutral: A Framework for Judicial Review”, Arbitration Law Review Journal, 2013, vol. 23(5), pp. 219-249.

[53] Maryam Salehijam, Supra, Note 45.

[54] Kristina G. Juergensmeyer, “Questions in Mediation: How Mediators Change Their Language to Facilitate the Process of Mediation”,  Journal of the University of North Carolina, 2015, Vol. 14(6), 73-90. 

[55] Amuseghan Sunday Adejimola, “Language and Communication in Conflict Resolution”, Journal of Law and Conflict Resolution, 2009, Vol. 1(1), pp. 1-9. 

[56] Alexandra Carter, “The Role of Language Interpretation in Providing a Quality Mediation Process”, Columbia Law School Journal, 2016, Vol. 9(2), 301-316.

[57] Dominguez-Urban, Ileana, “The Messenger as the Medium of Communication: The Use of Interpreters in Mediation”, Journal of Dispute Resolution, 1997, Vol. 1(1), 299-319.

[58] Ibid.

[59] Kai Lucke and Aloys Rigaut, “Cultural Issues in International Mediation”, available online at https://www.nottingham.ac.uk

[60] Molly Inman, Roudabeh Kishi, Jonathan Wilkenfeld, Michele Gelfand and Elizabeth Salmon, “Cultural Influences on Mediation in International Crisis”, Journal of Conflict Resolution, 2014, Vol. 58(4), 685-712.

[61] Beardsley Kyle, “Agreement without Peace: International Mediation and Time Inconsistency Problems”, American Journal of Political Science, 2008, Vol. 52(4), 723-740.

[62] Bercovitch, Jacob, “International Mediation and Dispute Settlement: Evaluating the Conditions for Successful Mediation”, Negotiation Journal, 2013, Vol. 7(1), pp. 17-30.

[63] Theodore Anagnoson and Donnette Wille, “Some Conceptual Issues and Empirical Trends in the Study of Successful Mediation in International Relations”, Journal of Peace Research, 2012, Vol. 28(1), pp. 7-17.

[64] Betts Richard, “The Delusion of Impartial Intervention”, Foreign Affairs Journal, 2014, Vol. 73(6), pp. 20-33.

[65] Carnevale, Peter and Dean Pruitt, “Timing in the Mediation of International Disputes”, International Journal of Psychology, 2009, Vol. 35(2), pp. 105-110.

[66] Jacqueline M. Nolan-Haley, “Judicial Review of Mediated Settlement Agreements: Improving Mediation with Consent”, Arbitration Law Review Journal, 2013, Vol. 5(1), pp. 152-161.

[67] Christopher Guthire and James Levin, “Party Satisfaction, Perspective on a Comprehensive Mediation Statute”, Ohio State Journal on Dispute Resolution, 2008, Vol. 8(8), 143-167.

[68] Felix Wilking, “The Enforcement and Setting Aside of Mediation Settlement Agreement”, being a research dissertation presented in partial fulfillment for the award of Masters of Law and Letters (LL.M) at the University of Cape Town, 2016.

[69] Christopher Moore, “The Mediation Process: Practical Strategies for Resolving Conflict”, available online at https://www.beyondintractability.org accessed on 28/09/2020.

[70] Frank Emmert, “The General Framework for International Business Transactions”, In Book: International Business Transactions: Text, Cases and Materials (pp. 1-60), Edition 1, Chapter 1.

[71] Kenneth C. Randall, “A New Paradigm for International Business Transactions”, Washington University Law Review Journal, 2013, Vol. 71(3), pp. 599-636.

[72] Gbenga Oduntan, “The Province of International Business Transactions Defined: Content, Scope and Intersections with International Legal Studies”, Manchester Journal of International Economic Law, 2016, Vol. 5(1), pp. 87-111.

[73] Jeswald W. Salacuse and Henry J. Braker, “Mediation in International Business”, published originally in Jacob Bercovitch, studies in International Mediation, Palgrave Macmillan, pp. 213-227.

[74] Diane Alferez Desierto, “Dispute Resolution Mechanisms in Cross-Border Transactions”, available online at https://www.researchgate.net accessed on 28/09/2020.

[75] Lee J. Berman, “Voluntariness in an International Mediation Process: An Historical Perspective”, published in the Southern California Mediation Association News, February 2003. Available online at www.mediationtools.com

[76] Liudmila Surma, “Principles of Mediation as the Basis of this Process”, ASEJ Scientific Journal of Bielsko-Biala School of Finance and Law, 2018, Vol. 3(1), pp. 1-4.

[77] The Mediation and Negotiations Centre, “Principles of Mediation”, available http://www.mediacia.by/principy-mediacii,  accessed on 28/09/2020.

[78] Klaus Reichert, “Confidentiality in International Mediation”, Handbook on International Arbitration and ADR – Third Edition, Chapter 18.

[79] Dursun Ai, “The Principle of Confidentiality in Mediation and the Role of Confidentiality in Commercial Mediation”, Afro Eurasian Studies Journal, 2017, Vol. 6(1) and (2), pp. 15-32.

[80] Astapov Lawyers International Law Group,  “Problems of Confidentiality in International Commercial Mediation”, available online at http://www.mondaq.com  accessed on 26/09/2020.

[81] Jeremy Pollack, “The Importance of Confidentiality in Mediation”, Journal of Conflict Resolution, 2015, Vol. 17(6), pp. 45-61.

[82] Marlon Meza-Salas, “Confidentiality in International Commercial Arbitration and Mediation: Truth or Fiction?”, available online at https://www.arbitrationblog.kluwerarbitration.com accessed on 26/09/2020.

[83] Sebastian Lukic, “Commercial Mediation – Confidentiality Matters”, Journal of Dispute Resolution, 2018, Vol. 12(4), pp. 23-40.

[84] Laurence Winston and John Laird, “A New Dawn in International Enforcement of Mediation Agreements”, available online at https://www.lexology.com accessed on 27/09/2020 

[85] Anna KC Koo, “Enforcing International Mediated Settlement Agreements”, in the Book ‘Harmonising Trade Law’, Chapter 4, pp. 81-96.

[86] Eunice Chua, “Enforcement of International Mediated Settlement Agreements in Africa – A Path Towards Convergence”, Africa International Arbitration Journal, 2019, Vol. 15(1), pp. 1-28.

[87] Bruno Zeller and Leon Trakman, “Mediation and Arbitration: The Process of Enforcement”, Uniform Law Review Journal, Vol. 24(2), pp. 449-466.

[88] Markus Altenkirch and Anindya Basarkod, “Arb-Med-Arb: What is it and how can it help the Parties to solve their disputes efficiently” available online at www.globalarbitrationnews.com accessed on 13/09/2020.

[89] Arjun Pal, “Understanding the Arb-Med-Arb Model in International Commercial Arbitration”, Jindal Global Law School Journal, 2019, Vol. 13(1), 1-5.

[90] Taylor Wessing, “Arb-Med-Arb: A Mechanism for Dispute Resolution not Used Enough”, available online at https://www.lexology.com accessed on 22/09/2020.

[91] Jennifer Allison, “Alternative Dispute Resolution Research”, available online at  https://www.guids.library.harvard.edu accessed on 23/09/2020.

[92] Sharon Lin and Daniel Cheong, “Arb-Med-Arb: Gonnecting the Dots Between Arbitration and Mediation”, Journal of International Law, 2016, Vol. 21(4), pp. 34-51.

[93] Obosa Akpata, “The Place of Med-Arb in the Resolution of Commercial Disputes”, available online at  https://www.patrelipartners.com accessed on 28/09/2020.

[94] James T. Peter, “Med-Arb in International Arbitration”,  Journal of American Review of International Arbitration”, 2007, Vol. 8(1), 1041.

[95] Brian A. Pappas, “Med-Arb and the Legalization of Alternative Dispute Resolution”, Michigan State University College of Law Journal, 2015, Vol. 19(3), pp. 157-201.

[96] Katie Shonk, “What is Med-Arb: The Pros and Cons of Med-Arb, a little-known Alternative Dispute Resolution Process”, Harvard Law School Journal, Vol 23(5), pp. 1-14.

[97] Mark Batson Baril and Donald Dickey, “Med-Arb: The Best of both Worlds or Just a Limited ADR Option”, available online at https://www.mediate.com accessed on 28/09/2020.