Law  

‘ADR cannot be an alternative to litigation’

Dr. Babatunde Ajibade

The crusade for the use of Alternative Dispute Resolution (ADR) mechanism in settling conflicts is gaining momentum within the legal community. In this interview with JOSEPH ONYEKWERE, the managing partner, ASP Ajibade & Co, Dr. Babatunde Ajibade (SAN), at his firm’s 50th anniversary, said ADR should not be promoted as something that is an alternative to litigation.

What do you think about the current state of lawyering in Nigeria, considering the issue of globalization that opens our borders for foreign lawyers into the country as well as the emergence of ICT?
I think lawyering in Nigeria is in a state of development. We are definitely not there yet, but I think we have made significant progress, relative to when I came into the profession.

Globalization is seen as a threat but I also think that it comes with significant advantages. Those advantages are making it compulsory for us to up our game. If we didn’t have the pressure that comes with globalization, we wouldn’t all be striving out to practice at the same level as to what obtains in the more developed parts of the world.

So because of globalization, we no longer have the luxury of just staying within our own comfort zone and doing things the way they were been done 30-40 years ago. Most of us now realize that in order to compete effectively with others outside the country, we need to improve the standards of practice across board.

So both in terms of utilizing ICT or in terms of specialization, I think specialization is probably the most critical aspect of it. 40 years ago, you hardly find a Nigeria lawyer that said they were handling only criminal matters or admiralty lawyers. Everybody was just a lawyer.

Once you are a lawyer, you do everything. I think more and more now, lawyers have started to realize that it is not possible for a lawyer to successfully do everything. People are starting to develop in specific areas of law and develop expertise in those areas. So I think those are the development that has been driven by globalization and those are the positive side of it.

The profession has to try to protect itself until we are at the same level with our peers in the developed parts of the world. But that protection has to be juxtaposed against the need also to benefit from the influence that they bring.

There is a trend now to shift focus out of the traditional litigation process towards the ADR, arbitration and all the rest. What do you have to say about that?

There is a trend especially in the commercial circle to focus more on ADR than on litigation. It is something I feel very strongly about. ADR should not and cannot be seen as an alternative to litigation. It should be seen as something that works together with litigation. The reason why I said this is simple, ADR is not self-enforcing.

Many at times, when you go through arbitration, you will still need the support of the courts. For example, if you have an arbitral award, you can’t enforce the award without going to court.

Many at times, awards are challenged by a losing party. So if we focus on ADR because we think that the courts are inefficient and we don’t try to fix the courts, we will end up back at square one. You will come back to the same court you ran away from in the first place to enforce the award or even to enforce the attendance of witnesses. So ADR system and the court work together.

Your mediation agreement is binding but if for any reason one of the parties reneged from what is agreed, you can only enforce that through the courts. So I don’t see ADR as an alternative to the courts, but as something that suppose to work together with the courts as part of the larger judicial structure. I advocate at every opportunity I get that it is wrong to sell or promote ADR as though it is an alternative to litigation.
Your firm is 50 years this year. That is a milestone. How has it been over the years?

It has been tough but we thank God. Every aspect of human endeavour is stifled if you don’t have God’s blessings and support in what you are doing. I know for a fact that when the firm was founded, the founder didn’t have the vision about where the firm will be in 50 years or whether it would survive for 50 years.

His vision was to set up his professional business and work as hard as he could. But we have been lucky and we have been blessed, as things have been developed to ensure that the firm will outlive its founder and even its founder successors. We are now an equity partnership but the firm doesn’t belong to one person. We have five partners aside the founder.

The vision is that as we grow, we take up more partners as business connect. One of the challenges is that legal practice in this part of the world is stunted. It hasn’t been for a lack of desire to grow but because we were constrained by the size of our legal market. There have to be resources to sustain large partnerships.

But things are changing. I think that more and more, the old model, where law firms are like private businesses for the owners and also for training lawyers who will come acquire experience and then go out to set up their own and replicate the same process all over again is giving way. I think slowly we have started to realize that it is counterproductive, that if you invest time and resources in training good lawyers, we need to devise a method at least in keeping some of them. There will always be those who will leave so there is need to devise a method in keeping some of them. There is no other way that I am aware of that beat offering them a stake in the business, offering them partnership and that is when the firm grows.

So it will get to a point where like firms in the West, we will have so many partners such that the partners don’t know one another. We are not there, that may not be in my lifetime, but it is something to aspire to.

What does it take to be a partner here?
To be a partner, you have to be first and foremost a good lawyer but on top of that, the language that is used in the professional services sector now is that you have finders, minders and grinders. The finders are the dealmakers, the people who bring in the work. The minders are the people who look after the client because after all it is a service business that we are in, if you don’t keep your clients happy, they will go elsewhere.

The grinders are the people who do the work, spend all the time in the library or in the court or drafting agreement, etc. A good lawyer must be able to do all the three but I think depending on what stage you are in the profession, you need to do more aspect of these than others.

For you to become a partner, you have to develop your skills in finding because a law firm without business, without clients is dead. So if you want to become a partner, you have to establish or demonstrate that you also have the ability to generate wealth. It is not sufficient to be able to do the work. So, the model is you come in as a young man, you start as a grinder.

Actually you need learn the ropes first. But with each year as you grow; you have to acquire other skills like finding, client’s engagement and clients management. The more your employers see you are actually introducing people to the firm, then you are heading in the right direction because they see that this is somebody even if we are not there, he can sustain the business. But the challenge is that most young lawyers don’t have the mind to the necessity of developing these skills. They think that the owners and partners have the obligation to generate all the wealth and that their business is to do whatever they are asked to do. Well that may be fine if you are happy to remain as an associate and just to earn a salary but if you aspire to become a partner, then you have to develop those other skills, that is the only way the business can be sustained.

Yearly, you have conferences, for this year, what was it on?
This year was slightly different. In the previous nine editions, the model we have run is to invite people for the business luncheon and invite the distinguished persons in the field, a distinguished lawyer to speak to our audience about a theme and also invite discussants to discuss the theme. For this year because it’s our 50th anniversary and 10th in the series, we decided that we will not invite any outsider to speak to us that we would do the talking, myself and the partners in the firm.

This year, we are in celebration mood, unfortunately, the economy has not cooperated with us. If the economic were more buoyant, maybe we would have had a much bigger event. But we are all witnesses to the fact that things are a little bit tough in Nigeria at the moment. So, we decided to be sensible and cut our coat according to our pocket.

But nonetheless, we see this as a celebratory year so we are departing from the standard practice we had in the past and what we propose to do with the theme of this year business luncheon, which is commitment to leadership is basically to address what we think we have contributed to leadership especially through this business luncheon that we have been hosting and also to address things that need to be done in the profession if we are going to move the country forward. The legal profession will play a critical role in moving Nigeria out of where it is at present and we want to emphasize on what we think is required to achieve that.

What inspired the book that you launched at the event?
The book was written primarily a way of celebrating our 50th years in existence. We thought that this is a significant way of marking the event. Having a party and people come, enjoy themselves and go, within a week they will forget and move on to the next event. But we think that with this book, which is a significant piece of academic work, contributed exclusively by lawyers in the firm, would stand as a testament to what we aspire to in the firm.

We aspire to be reckoned to as a serious player in the legal services market. The legal service market is based on knowledge. It is a knowledge industry, so, that is our contribution to knowledge and now that we have started, we anticipate that hopefully at regular interval maybe every five or ten years, we would do something like this just to contribute to knowledge.

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