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Cheung Wai Man is a solicitor currently practising as a Consultant at Christopher Li & Co., Solicitors & Notaries in Hong Kong SAR. She is also a General Mediator, accredited by Hong Kong International Arbitration Centre (HKIAC) and a member of The Chartered Institute of Arbitrators (MCIArb.) Below, Miss Cheung speaks to Finance Monthly about her legal practice, and in particular, her mediation work.

 

What kind of disputes that involve mediation do you handle?

Thus far in my career, I’ve worked on four mediation for litigation cases and have appeared as a party’s legal representative in Financial Dispute Resolution (FDR) hearings before FDR Judge – all in matrimonial cases. When it comes to this type of cases, parties have attempted private family mediation, and a few have been able to reach a settlement. In a few cases, this has resulted in having their terms of settlement reduced in Consent Summons by both parties’ solicitors for the Court’s granting of matrimonial settlement order. Other cases have been settled after one or two FDR hearings without having full trial on the question of ancillary relief. Yet, a considerable number of the cases I have handled are still settled traditionally by without prejudiceMediation has been becoming a popular Alternative Dispute Resolution method in Hong Kong since 2010 when the Hong Kong Judiciary implemented a practice direction to encourage parties to have mediation for court cases before trial, with a view to save time and reduce litigation costs. As it’s been less than a decade since mediation was officially introduced in Hong Kong, there is still a lot that needs to be done in terms of developing our domestic mediation practices.

 

When is the right time to choose a mediator in a dispute?

Normally, the right time to choose a mediator in a dispute is when documentary evidence relevant to the dispute is disclosed and the parties’ issues and stances in the dispute are known. During this stage, the parties are more likely to have an effective mediation conference to communicate and work on their differences with a view to eventually reach a settlement. Parties can then have a clear idea of what mediation can achieve and choose the mediator based on his/her areas of expertise.

 

How do matrimonial cases differ from other cases that you’ve worked on?

Matrimonial cases tend to be a bit more personal as the Family Court requires to see a party’s report of their finances or a financial statement. Another thing that is specific to the nature of matrimonial cases is that the general atmosphere during proceedings is quite heated and emotional.

Family mediation during the pre-proceedings stage is highly desirable as this is when parties can have a private and confidential negotiation and overcome their differences, which can result in a quick settlement. A friendlier, more civil approach is obviously advisable for families who have children.

 

What skills would you say are essential for a good mediator?

I think that in order to be a mediator, one should be able to effortlessly encourage two individuals to communicate with one another. A good mediator needs to be confident, articulate, analytical and persuasive and have excellent listening and summarising skills.

 

What would be your top advice for managing disputes to the best possible outcome?

My top advice is to make sure to fully understand the parties’ cause(s) and the background of a dispute. Assess the strength of each party’s case. Know each party’s expectation for the outcome of the dispute and the concession(s) that each party is willing to make in order to settle it. Avoid and/or shorten the duration of a litigation proceeding to save time and reduce costs, if there is an ADR method that can be used instead. And lastly, encourage both sides to consider a win-win type of settlement.

 

 

Contact details: 

E-mail:  christine@member.hklawsoc.org.hk

Tel: +852 9238 2475

Emmanuel Ekpenyong is Managing Partner of Fred-young & Evans LP, a full-service commercial law firm and Fred-young Recoveries, an international debt collection firm. He is listed as a foreign associate with James Ling Attorney at Law, China. Mondaq have on many occasions awarded him Contributor with Most Popular Article and Most Reader Response in Nigeria. He is profiled as a National Expert in Getting the Deal Through: Restructuring, Insolvency and Copyright. ACQ5 awarded him, Gamechanger of the year, 2017. Here Emmanuel speaks to Finance Monthly about dispute resolution in Nigeria, the advantage of resolving disputes in the country and his company.

 

Litigation is often seen as the last resort, what are the viable alternatives to litigation in Nigeria?

Litigation is the most common form of dispute resolution in Nigeria. Its origin is entrenched in the English common law. Oftentimes, litigation is cumbersome because of the ingrained culture of litigation which results in overflow of cases and delay in adjudication, which is not ideal for business and business relationships. The need for a more efficient dispute resolution process has contributed to the prominence of Alternative Dispute Resolution (ADR) mechanisms in recent years.

Nigerian courts through their rules, now encourage litigants to resolve their disputes by adopting ADR mechanisms. The court may, with the cooperation and consent of the parties, refer the parties to ADR centers attached to the court system. If successful, the agreed terms of settlement is adopted as the consent judgment of the court. If unsuccessful, the matter is referred to court for adjudication. In adopting ADR processes, the parties may opt for informal tribunals which use informal mediation processes without possessing a formal structure or formal tribunals using formal mediation processes.

The most known and practiced ADR mechanisms in Nigeria are Arbitration, Mediation and Conciliation.

 

How does the appeal process work in Nigeria? Are there any advantages to resolving disputes in Nigeria – over and above other jurisdictions?

 An appeal against final judgments is brought within 90 days after delivery of judgment and 14 days for interlocutory rulings. The Court of Appeal rules allows an Appellant to bring an application before the appellate court for enlargement of time to file an appeal. An appeal does not operate as a stay of execution of judgment at the trial court; the Appellant has to file for a stay of execution of judgment pending the outcome of the appeal. An appeal is filed against questions of law of the trial court. If an Appellant wants to bring an appeal against questions of facts or mixed law and facts, it must seek and obtain leave of the appellate court.

The parties shall settle the record of appeal at the registry of the trial court and transmit it to the registry of the appellate court. The Appellant shall file its Appellant’s Brief within 45 days after transmission of the record of appeal. The Respondent shall file the Respondent’s Brief within 30 days of receipt of the Appellant’s Brief. The Appellant shall file a Reply Brief within 14 days of receipt of the Respondent’s Brief. The parties shall, at a date fixed for hearing by the appellate court, adopt their respective briefs and the appeal will be adjourned for judgment

 

What are the advantages of resolving disputes in Nigeria?

Unlike other jurisdictions in Africa, the rules of Nigerian courts encourage and provide avenues for litigants to explore amicable and less acrimonious settlement of their dispute. Nigerian courts uphold arbitration and other ADR clauses and in most instances stay court proceedings pending the outcome of arbitral proceedings. The court system support ADR proceedings by granting necessary interim orders, discovery and enforce arbitral awards in the same way as its judgments.

 

 How does your law firm assist clients involved in commercial litigation? Is there any general advice you could offer clients to prevent the situation from escalating?

We are interested in our client’s business and its business relationship with its customers. This is why we explore amicable settlement of disputes involving our client without compromising their interests. If amicable settlement fails and the parties do not have an arbitration agreement between them, we usually suggest to the parties to sign a submission agreement to enable them submit themselves to arbitration because of its speed and confidentiality. If litigation is inevitable and our client’s claim is a liquidated sum, we save time by commencing a summary judgment proceeding to prevent the proceedings from escalating. If our client is the defendant, genuine admissions and reasonable offer towards timeous resolution of the matter are veritable options.

 

 Litigation can be very costly – how do you evaluate each case to determine the best approach? When is arbitration more appropriate?

Litigation has the potential of resulting in high costs for parties and their businesses because of its unpredictability. Though arbitration is much more efficient in today’s business climate, there are certain disputes that can only be resolved by litigation. Disputes involving moral questions, questions of public law, criminal, matrimonial, insolvency, matters, ownership of land, dissolution of a company and testamentary matters cannot be referred to arbitration. In practice, only contractual disputes are referred to arbitration.

Website: http://www.fredyoungandevans.com

 

Ijeoma Ononogbu is a London-based Solicitor and an Arbitrator (FCIArb).

She is an international dispute resolution lawyer who has specialised in Alternative Dispute resolution in the areas of investigations and regulations.

Ijeoma is a Director at Dispute Resolver Ltd, an international dispute Resolution service provider available in London for all dispute resolution consultancies, expert views and dispute resolution updates.

 In our world, the global demand and interest in alternative dispute resolution (ADR) have led to phenomenal growth in its use by disputants. The popularity of ADR has triggered discussions across the legal profession including the use of mediation, online dispute resolution and hybrid ADR mechanisms such as Med-Arb, Arb-Med-Arb, etc. Here Ijeoma Ononogbu tells us more about it.

 

What is your role in dispute resolution?

I am a solicitor based in London, primarily a litigator. I work with my arbitration colleagues on matters involving both arbitrations and court processes. Essentially, I am an advocate and an ADR expert, with mostly arbitration expertise in international commercial arbitrations and investment treaty arbitrations. Often, the disputes I work on have some cross-border commercial aspect, usually complex and high-value. Many of my clients are large commercial entities and individuals who expect an exhaustive exploration of (alternative) dispute resolution mechanisms, before the consideration of a court trial. My passion for ADR stems more from a personal intellectual interest and social justice reasons. I subscribe to the use of ADR as a form of dispute resolution because of the ability to assist people, and commercial entities equitably achieve justice.

 

What made you specialise in ADR

ADR promotes dialogue, which we require in our ever challenging and changing world. The UK dispute resolution market remains predominantly litigation-based, with considerable arbitration work. Many processes are available to disputing parties which are still under-utilised. Consequently, I saw an opportunity for the resolution of disputes other than the use of litigation, arbitration, and mediation. Arbitration is in use by commercial entities, high-net-worth organisations/companies, while mediation, in particular, is heavily supported by the government, judiciary, and experienced advisers, yet it remains under-used. Conciliation and facilitation on the other hand are examples of ADR mechanisms, sparingly mentioned in ADR processes.

 

Why has there been a surge in hybrid ADR mechanisms?

The growth and development of ADR have led to an expansion of the possibilities within the ADR sphere. This is mainly because of the timely, inexpensive nature of ADR processes, as opposed to litigation. The court process has over the years been subjected to its delays and expensive nature, which made legal practitioners and disputants seek for alternative methods of resolving their disputes. ADR growth in the UK has been phenomenal, with the UK spearheading deliberations on ensuring ADR processes are in conformity with the changing times. The mandatory use of mediation by parties in a divorce and child custody before a court trial is a good example of where the UK has maintained its lead in the use of ADR in the dispute resolution process. On the other hand, mediation was predicted to flourish in Asia but has not so far. Developments such as the Arb-Med-Arb procedure in Singapore, which ensures enforceability of mediated settlement agreements, partnered  with UNCITRAL’s plans to develop a law on enforcement of mediated agreements, should help bring mediation to the forefront of parties’ and lawyers’ minds, either as an adjunct procedure or as a process in its own right.

 

How are ADR processes likely to change?

In recent years, there has been a notable growth and development of ADR mechanism.

Technology is changing virtually every aspect of our human existence. Online Dispute Resolution (ODR) is likely to increase in use over the next two decades. It presents parties with what they usually want for the right cases, given its attraction of a timely reasonable settlement and itsability to cut across jurisdictions. It is now time to see mediation and possibly arbitration enter the mainstream of ODR, after living in the shadows of litigation for a long time. The uniqueness of mediation and arbitration is the fact it gives parties back partial control and flexibility regarding outcomes.

Another trend worth mentioning is the 'Domain Name dispute resolution and mediation'. HKIAC, a service provider in the Asia-Pacific region, has reported a significant surge in domain name dispute resolution and has experienced strong growth in its domain name caseload over the past few years.

 

Which ADR process is in use more frequently?

In my experience, international arbitration has been the process used more often, although I have increasingly noted the use of other types of ADR processes. However, as a general rule, the expectations of the users of the arbitration process and the sums of money involved lead to the same general structure being adopted.

All forms of ADR, especially international arbitration, involve the parties agreeing to arbitration as the process by which their disputes will be resolved. Typically, the parties also agree on the arbitral rules which will apply and which will form the‘rule of engagement’ criteria. With some institutions that promote competing for arbitral rules and procedural innovations, there is an assumption that the parties under the counsel of their lawyers have chosen the best option available to them or, at a minimum, the ‘least worst’ option. Therefore, the arbitral process evolves to address the individual needs of the users of the process, namely the parties in the dispute.

 

What would be your top 3 tips on going the extra step?

 Experience shows that it is often the parties themselves who are often the most resistant to ADR mechanisms in their disputes. As a result, I advise from understanding the parties’ psychological state of mind. Consequently, I put all facts and evidence possible, as well as an unforeseeable scenario, before the parties and explain all efforts that will be implored to win the dispute.

Additionally, the use of party conferencing applications through technological platforms is vital. Usually, there is a provision of teleconferencing apps such as WebEx, AnyMeeting, Free Conf, GoToMeeting, Skype, Zoom for parties or witnesses in different jurisdictions. In most instances, the parties are given a choice to make a preferred platform option.

 

What does a typical day in the office look like for you?

My work follows the general structure of most legal practitioners - one or more rounds of factual witness statements and expert reports, followed by an oral hearing with conclusions by a written closing brief. However, as a general rule, the expectations of parties of ADR demands constant research and reading.

 

What inspires you to press further into your work?

 I specialise in commercial disputes, as I have always been drawn to the complexities of many cases and the challenge of finding ways to resolve these disputes, in the most beneficial way for my clients. Negotiation is under-utilised, however, notably highly valuable for an ADR practitioner. I deal with a broad range of disputes encompassing arbitration, mediation and recently - online dispute resolution. In all forms of ADR, negotiation is the recurring decimal that continues to lead guarantee a positive outcome.

Today, there are highlighted divergent views on the role of legal practitioners. Parties are looking for lawyers to collaborate with them, on the other hand, lawyers see their role as advocates for the parties. As such, the expectation for a timely delivery is one party are unable to compromise. The feeling of self-satisfaction after a good, well-executed work is indescribable. In the legal profession, one is evaluated by the last case - success or failure, regardless of the circumstances.

The legal and cultural diversity of parties and counsel in international arbitration continues to create a source of issues to address. As a result, there are new opportunities with each new case to develop procedural solutions to suit the matter. The various global legal system means that one is always self-educated, for the success of a case is largely dependent on additional knowledge. A personal work mantra for me is: “Efforts are commendable; Results are the ultimate.” which continues to be one of my guiding principles.

 

Challenges for the growth of ADR

 

Solution to the growth and development of ADR

The crucial element is the maintenance and growth and development of ADR processes, such as International arbitration for the settlement of international commercial disputes. The requirement of hard work by everyone in the ADR field, to ensure the continued legitimacy of the process in the eyes of the user and their representative. The Global Pound Conference Series (GPC) in London on the 6th July 2017 will facilitate the development of dispute resolution in the 21st century.

 

CONTACT DETAILS

www.disputeresolver.uk.com

ijeoma@disputeresolver.uk.com

 

Ijeoma Ononogbu is a dual qualified lawyer – a barrister & solicitor of Nigeria and a solicitor of

England & Wales - a London-based solicitor in international dispute resolution. Ijeoma works as an arbitrator in international commercial arbitrations and investment arbitrations.

She serves as the Chartered Institute of Arbitrators delegate to the United Nations Commission on International Trade Law (UNCITRAL) Working Group II (Arbitration Conciliation) Dispute Settlement and is the CIArb delegate UNCITRAL Working Group III (Online Dispute Resolution). As a thought leader in the sector, over the next couple of pages Ijeoma offers a valuable insight into alternative dispute resolution practices, trends and future developments.

 

Which type of dispute resolution process would you say are most commonly used to resolve disputes in England? How do these differ, when compared to the dispute resolution trends in Africa?

 Dispute Resolution processes include litigation and arbitration. These two are referred to as adjudicative processes and are contentious. On the other hand, there is ADR, which means Alternative Dispute Resolution, usually considered as Consensual processes, such as collaborative law, mediation, conciliation, negotiation, facilitation and other hybrid methods of consensual process.

Each case has its specific features, and there are many cases where a different mechanism has been adopted in England. Apart from litigation, which involves court trials - a process considered undesirable by many people. Private arbitration is the most common form of dispute resolution process for complex and high-value cases in commercial disputes; while mediation is mainly used for domestic and low-value cases. However, as a general rule, the expectations of users in the dispute resolution process and the enormous finances involved makes arbitration the most commonly used mechanism in England.

 

Due to the variations in the legal systems on the Africa continent, the law used will fall within either civil law, common law, statutory law or religious law. Of the 54 African countries, 19 are Commonwealth countries - subject to the Common Law. As such, the dispute resolution trends in Africa are mostly litigations, negotiations, conciliations, arbitrations, and mediations. Arbitration has gained momentum in Africa, with countries such as Nigeria, Mauritius, South Africa, Kenya, Angola and Ghana taking the lead.

When compared to the dispute resolution trends in Africa, I would say that there are many similarities with England.

However, dispute resolution in England differs to some extent, when compared to the dispute resolution trends in Africa. The English-speaking States’ dispute resolution patterns are in conformity with the Common law, while the French-speaking States are the  Organisation pour l’ Harmonisation en Afrique du Droit des Affaires ( OHADA). The OHADA objectives are the implementation of a modern, harmonized legal framework in the area of business law, aiming to promote investment and develop economic growth. Therefore the dispute resolution trends on the OHADA States are tailored towards the objectives of OHADA. The commonality in both the English and French speaking States in Africa is the existence of customary laws, which inculcates the resolution of disputes by the eldest male or current head in the rural areas. The use of customary law, regardless of State, is a unique process peculiar to Africa in the resolution of disputes. The practice is widespread regardless of whether we look at an English speaking or French speaking State.

 

How do you choose which method of dispute resolution is most appropriate?

 I choose the method of dispute resolution most suitable for a case based on value, commercial aspect and the entities involved, and jurisdiction. The disputes I am involved in are usually of high value and cross-border commercial matters, which includes work for claimants and/or respondents. The most appropriate dispute resolution process is usually arbitration. The arbitrations that I assist with cut across jurisdictions around the world – I frequently work in New York, California, Vienna, Lagos and South Africa.

The arbitration process follows one or more rounds of written pleadings, followed by one or more rounds of factual witness statements and expert reports. They are typically consequently followed by an oral hearing, followed by a written closing statement.

 

What motivates you about working with dispute resolution?

 I am motivated by working in dispute resolution because of my social justice stance on fairness and personal intellectual interest.  I like and enjoy dispute resolution because there is always a number of challenges that need to be addressed, both legal and factual issues. Subsequently, I have become a passionate supporter of arbitration and ADR. As such, I am committed to the promotion of arbitration and ADR. I enjoy working as an international arbitrator because the disputes that I work on are widely varied. Most importantly, is the sense of satisfaction and accomplishment I feel when I see the parties getting justice.

 

I am appreciative that ADR and arbitration are seen as effective means of dispute resolution. Gone are the days when litigation was seen as the sole means of resolving complex disputes.

Additionally, I am genuinely impressed with the increase in the number of female practitioners in international ADR and arbitration field. I encourage women to continue to equip themselves with the required qualifications, skills and training for opportunities as they arise. I am glad many law firms and organisations have signed the Equal Representation in the Arbitration Pledge.

 

How did your career path lead you to this area of specialism?

My career path to dispute resolution is quite interesting. Like many young people, I left school undecided on a clear legal career path. Upon qualification as a solicitor in 2008, I went on to get an LLM in 2011 at Queen Mary, University of London. While I was at Queen Mary, after auditing, I realized that international dispute resolution was my area of interest, with the emphasis on commercial litigation and arbitration and I stuck with it. I simply read and soaked in all information on dispute resolution and then I went on to formalize my knowledge of arbitration by obtaining a recognised qualification. Accordingly, I completed the Award writing examination of the CIArb and consequently passed a further examination and in 2014, I became a Fellow of the Chartered Institute of Arbitration (FCIArb).

 

 

Can you please give an example of a tough dispute and the challenges faced?

 Every dispute has its own challenge - do bear in mind that virtually all disputes are tough in some way.

I remember earlier in my arbitration career, an arbitration case in California where as Counsel I was drafted in to attend an application. The opposing Counsel turned up very late. When the Counsel eventually turned up, we realised that there was an obvious distinct understanding of the very different ways as to how the arbitration should be administered. The old timetable resulted in lengthy delays with the tribunal inevitably realising that there had to be an agreement on how to address this. Eventually, the arbitral tribunal decided to disregard the old timetable and quickly agreed on a new timetable, with the tribunal left with a few options, considering the application for the arbitration involved complex legal issues. Interestingly, the opposing counsel was an arbitrator with extensive experience in the US. Fortunately for me, the arbitrator was not taken in by opposing counsel credentials and correctly decided the application in my client’s favour.

 

Are there any groups or lobbying activities you are involved in that help you push the boundaries of ADR?

 An ADR group which I am involved in, is the All-Party Parliamentary Group (APPG) on ADR. This group brings together individuals and organisations from outside Parliament, interested in dispute resolution, civil justice reform and alternatives to court to discuss and explore ADR. The APPG on ADR organises regular sessions in The House of Commons, Westminister.

 

As a thought leader, do you believe there is potential for further development in the ADR practice?

 Yes, there is further room for development in the ADR practice. Technology has permeated all facets of human development such as online financial trading, online shopping, and online banking. The potentials for online dispute resolution (ODR) are enormous. ODR is an evolving area of ADR. I was part of the UNCITRAL group in 2016, which submitted a draft report on the implementation of a globally acceptable ODR Technical Notes to the United Nations General Assembly. On the 13th December 2016, the UN General Assembly endorsed the UNCITRAL Technical Notes on ODR. The endorsement of the ODR Technical Notes by the UN has set a foundation for its incorporation in transactions, both for consumers and businesses; a good step in the right direction. In the UK in 2016, the creation of Her Majesty Online Courts (HMOC) was announced for Low-Value Civil Claims. The creation of HMOC will invariably lead to the growth and development of ODR.

 

Do you have a mantra or motto you live by when it comes to helping your clients?

 Consider the provisions of the arbitration agreement, including any arbitration agreement, including any arbitration rules and/or the lex arbitri and take care to establish what the local practice and standards are.

 

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