The Institutionalization of Divorce Mediation in Nigeria

INTRODUCTION

In every human relationship, dispute is inevitable. Matrimonial dispute is like every other dispute that emanates from contracts. Divorce is often a challenging and emotional process for couples particularly when issues such as child custody, financial support, and property division are factors to be considered during the dissolution. In Africa, marriage is considered an everlasting and sacred union. To foster and preserve the sacredness and importance of the union, there is need to look into a more flexible and liberal approach of resolving matrimonial disputes. In Nigeria, the process for a formal divorce is complex and it involves lengthy court procedures and the adversarial nature of litigation.

Section 91 of the Arbitration and Mediation Act defines Mediation as a process where parties request a third person (“the Mediator”) to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship but the mediator does not have the authority to impose upon the parties a solution to the dispute. Mediation is a form of Alternative Dispute Resolution (ADR).  Conflicts brought to mediation sitting are resolved through a third party who is known as a Mediator. The essence of Mediation is to ensure neutral, flexible, cost effective, and fast. Mediation is a party-central process because it focuses majorly on the need, right interest of parties.[1]

Divorce mediation is a voluntary settlement process used frequently and successfully by married couples who want to divorce, and by domestic partners who want to separate. Divorce mediation gives couples the option to plan their futures rationally, and in an atmosphere of cooperation and mutual respect. It is an Alternative Dispute Resolution (ADR) process in which a neutral third party, known as the Mediator, facilitates discussions between divorcing spouses. The aim is to help the couple reach mutually acceptable agreement on issues such as child custody, spousal support, and division of assets, without the need for a court battles. One of the major principles of mediation is that it is voluntary. Both parties must agree to participate in the process and be bound by the result.

MEDIATION AND TRADITIONAL JUDICIAL PROCESSES FOR MATRIMONIAL DISPUTES

Mediation is a form alternative conflict resolution, in which a neutral third person called a mediator assists in the resolution of family issues by encouraging the parties to achieve an amicable resolution. Mediation is now being used in various business and corporate sectors. There is also a need for mediation in Matrimonial issues.

When compared to traditional judicial procedures, mediation offers a more efficient means of resolving disputes. This Alternative Dispute Resolution (ADR) method creates a conducive environment and fosters flexibility, which contrasts with the rigid and formal atmosphere of the courts. Court proceedings are public and can expose personal matters to scrutiny. However, mediation is a private and confidential process. This confidentiality not only protects the parties involved but also encourages open communication, making it a popular choice for couples facing marital challenges.[2]To a large extent, divorce mediation allows the parties to decide as the settlement of the dispute is in their hands, rather than leaving it to a judge who will determine how their property will be share and the custody of their children. [3]

Mediation has become one of the most recognized conflict resolution strategies for addressing marriage problems in contemporary society. Mediation is significant for children, who might be faced with the difficulties and trauma of the traditional judicial divorce. Mediation as a form of ADR aid in promoting cooperation and understanding between parents, mediation can facilitate healthier family life after divorce which will benefit the children’s emotional well-being.

However, mediation has its downsides. Some argue that it can be ineffective, particularly in cases involving abuse or significant power imbalances. Critics contend that mediation allows perpetrators to evade accountability, thereby undermining the role of the state’s criminal justice system. This perspective raises important questions about the adequacy of mediation as a solution, particularly in serious cases where intervention is necessary. [4]

Despite these criticisms, mediation is a vital tool for maintaining social peace and harmony. It provides a structured yet flexible framework for conflict resolution, allowing individuals to resolve their issues in a manner that respects their dignity and personal problems. As the society evolves, so does the need for conflict resolution methods that prioritize collaboration and understanding over adversarial approaches.[5]

In Nigeria, the institutionalization of divorce mediation is yet to be embraced, Nigeria divorce processes still go through the usual adversarial method before dissolution can occur. However, Section 11 of the Matrimonial causes Act provides what looks like divorce mediation which is reconciliation.

• It shall be the duty of the court in which a matrimonial cause has been instituted to give consideration, from time to time, to the possibility of reconciliation of the parties to the marriage (unless the proceedings are of such a nature that it would be appropriate to do so), and if at any time it appears to the judge constituting the court either from the nature of the case, the evidence in the proceedings or the attitude of those parties, or of either of the, or of counsel, that there is a reasonable possibility of such a reconciliation, the judge may do all or any of the following, that is to say, he may

1. adjourn the proceedings to afford those parties an opportunity of becoming reconciled or to enable anything to be done in accordance with either of the next two succeeding paragraphs.
2. with the consent of those parties, interview them in chambers, with or without counsel, as the judge thinks proper, with a view to affecting a reconciliation.  
3. nominate a person with experience or training in marriage conciliation, or in special circumstances, some other suitable person, to endeavour with the consent of the parties, to effect a reconciliation. [6]

This alternative, as provided by the Matrimonial Causes Act, seeks to bring the parties together. The main goal of these provisions is to promote the idea that reconciliation is often preferable to divorce, helping couples find common ground and resolve their issues whenever possible. This reflects the judicial interest in preserving marriages and families, particularly when children are involved.

Reconciliation is recommended to be an alternative to litigation, the essence of this recommendation is to help marriages that have broken down irretrievably. To offer a solution the Act provided that the judge can pause the legal proceedings to give the parties time to consider reconciliation or take necessary steps toward it. With both parties’ consent, the judge can hold private meetings (in chambers) to discuss issues directly. This allows for a more personal dialogue that might facilitate reconciliation, with or without lawyers present. The judge can designate a trained professional or a suitably experienced individual to collaborate with the parties to reconcile and reach an agreement.[7]

BENEFITS OF INSTITUTIONALIZING DIVORCE MEDIATION

Divorce is often an emotionally charged process, but mediation has emerged as a constructive alternative to traditional litigation. This approach offers numerous benefits that not only ease the divorce experience but also lay the groundwork for healthier relationships in the future.

One of the most significant advantages of divorce mediation is its cost-effectiveness. Mediation typically involves lower fees compared to court proceedings, which can accumulate through paying professional fees of the lawyers, filing fees, and extended litigation but by streamlining the process, couples can significantly reduce their financial burden. Mediation often leads to quicker resolutions. Court cases can drag on for months or even years, due to adjournment and procedural delays. Mediation allows couples to meet at their convenience, expediting discussions and decision-making. This faster process is particularly beneficial for those seeking closure and the ability to move forward with their lives.[8]

Mediation is a party driven process unlike traditional court settings, where a judge makes final decisions, mediation empowers couples to work together and reach an agreement that reflects their unique problems and needs. This sense of being part of the outcome can lead to greater satisfaction with the final agreements and a more positive emotional state after divorce. Mediation fosters a less adversarial atmosphere, which can reduce hostility between the parties. Mediation encourages open communication and mutual respect that can be beneficial to both parties thereby minimizing conflict.[9]

Effective communication is another hallmark of successful mediation. The process encourages couples to articulate their needs and concerns in a constructive manner, helping them to rebuild communication skills that may have deteriorated during the marriage. Confidentiality is a further advantage of mediation. Unlike court proceedings, which are public, mediation discussions remain private. This confidentiality protects the personal details of the divorce from public scrutiny, allowing both parties to navigate this sensitive time with dignity.

Mediation also allows for tailored solutions that reflect the specific needs of the couple. Traditional court rulings often follow statute and guidelines that may not adequately address the unique problem of each family. In contrast, mediation encourages creative problem-solving, enabling couples to develop customized agreements that work best for them. The reduced stress associated with mediation cannot be overstated. The less confrontational nature of the process allows couples to engage in discussions without the pressure and anxiety commonly associated with court battles. This emotional relief can make the divorce experience more manageable, paving the way for healthier transitions after divorce.

CONCLUSION

Divorce mediation presents different of benefits that not only alleviate the burdens of the divorce process but also promote positive outcomes for individuals and families. In Nigeria there is no institution that promote divorce mediation however, the Arbitration and Mediation Act 2023 which regulates commercial disputes in Nigeria should be expanded to cover family related matters and it should provide comprehensive guidelines on mediation for divorce and other family related matters. The Matrimonial Causes Act should also provide sufficient provision on divorce mediation without first approaching court. Mediation stands out as an ultimate alternative to traditional litigation, incorporating Alternative Dispute Resolution (ADR) into the official justice system for family disputes can greatly improve the experience for those involved and this allows parties to easily access mediation and other resolution methods.

FOOTNOTES: 

[1] Toheeb Adeagbo Matrimonial Disputes: The Applicability of Divorce Mediation as an Alternative https://omaplex.com.ng/matrimonial-disputes-the-applicability-of-divorce-mediation-as-an-alternative/ accessed 10^th September 2024.

[2] Mahantesh G, Mamatha R , and Sunil Kumar L. Mediation In Matrimonial Disputes: A Judicial Perspective < https://www.webology.org/data-cms/articles/20220502113953amwebology%2019%20(2)%20-%20648%20pdf.pdf > accessed 20^thSeptember 2024.

[3] Toheeb Adeagbo Matrimonial Disputes: The Applicability of Divorce Mediation as an Alternative https://omaplex.com.ng/matrimonial-disputes-the-applicability-of-divorce-mediation-as-an-alternative/ accessed 10^th September 2024.

[4] Hameenat Bukola Ojibara, Identifying the Viability of Alternative Dispute Resolution Methods in the Resolution of Marital Disputes under Nigerian Family Laws < chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.bahria.edu.pk/buic/law/wp-content/uploads/2024/03/Final-2023-JLSP-3.pdf > accessed 20^th September 2024.

[5] Mahantesh G, Mamatha R , and Sunil Kumar L. Mediation In Matrimonial Disputes: A Judicial Perspective < https://www.webology.org/data-cms/articles/20220502113953amwebology%2019%20(2)%20-%20648%20pdf.pdf > accessed 20^thSeptember 2024.

[6] Section 11 Matrimonial Causes Act

[7] Toheeb Adeagbo Matrimonial Disputes: The Applicability of Divorce Mediation as an Alternative https://omaplex.com.ng/matrimonial-disputes-the-applicability-of-divorce-mediation-as-an-alternative/ accessed 10^th September 2024.

[8] Hameenat Bukola Ojibara, Identifying the Viability of Alternative Dispute Resolution Methods in the Resolution of Marital Disputes under Nigerian Family Laws < chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.bahria.edu.pk/buic/law/wp-content/uploads/2024/03/Final-2023-JLSP-3.pdf > accessed 20^th September 2024.

[9] The Benefits and Drawbacks of Divorce Mediation  https://bentley-law.com/blog/the-benefits-and-drawbacks-of-divorce-mediation/#:~:text=Pros%20of%20Divorcing%20Through%20Mediation&text=It%20presents%20divorcing%20couples%20with,stressful%20than%20going%20to%20court.accessed 22^nd September 2024.