For the past 18 months I have served as an Associate Area Legal Counsel with a large non-profit organization that conducts significant operations in West Africa. During that time I have overseen all real estate acquisitions and nearly all real estate litigation by this entity in 17 West African Nations.
It’s been a singular experience. I’ve not lived overseas for many years, and I have never before been in Africa. I’ve seen poverty here like I’ve not experienced before. I’ve been impressed with African resourcefulness, with African ingenuity; with what I have seen of resolve, commitment, heroism, good naturedness, courage and grit in the most trying and difficult of circumstances. It’s been a testament to the strength of the human spirit and the ability of people to see the best in themselves and each other when it would seem there is very little to look forward to. Our time here is drawing to a close. In two weeks our assignment here will be completed and then we will return to the United States; in October we will be back in the San Francisco Bay Area.
Africa is an expanding worldwide presence, and it continues to grow. Experts project that by the year 2050 the population of the African major metropolitan areas will triple. The age of the average African is 19; this means the continent is poised to experience explosive population growth in the upcoming years.
Conditions are different here than in the United States. In West Africa there is no social “safety net.” There is no welfare program to speak of; no state-sponsored financial assistance for persons in need. People here must make their own way without help from governmental programs. The African “safety net” consists of one’s extended family, or if one has no family then of one’s neighbors – or even of total strangers. Africans look out for each other; they have each other’s backs; that’s their “safety net” and it’s one of the most striking features of the African social fabric.
Litigation exists in Africa, but it’s expensive. Few people can afford it. Disputes exist, but because people have little or no money for court proceedings they settle their differences in other ways. Traditional rulers, or “chiefs” have substantial influence in their local communities. Disputes are frequently resolved by these “chiefs” in traditional, informal settings with no involvement by lawyers or court systems.
Mediation does exist here, but just barely. ADR in West Africa usually consists of binding arbitration; mediation is almost unknown. In another 30 years it’s possible that mediation may be as common here as it is in California, but it will take some time before lawyers and judges become familiar enough with mediation that they will appreciate how effective it can be.
Even though mediation is essentially unknown here, the dynamics that contribute to successful mediations are nonetheless present in every day life, but the stakes are much smaller. Vendors walk up and down lanes of traffic all day trying to sell drinks or other items for 15 or 20 cents U.S. Every sale is a victory, but the amounts of such sales are so small that people are sweating a lot in order to make sales that might total up to two or three dollars a day.
We know one young man (with a spouse and several children) who cleans houses for a living. He recently realized that the competition for cleaning jobs is increasing and he needed to branch out in order to support his family. He rented part of a shipping container that had been dropped on the side of the road with a doorway cut out of the side. He operates a small retail business where he sells beans, maize, canned tomatoes, cookies, soft drinks and – stationary. He’s smart; he’s savvy. There are many vendors in his locale who sell exactly the same products he does. It’s a bit of a situation where people who have no money are trying to make a living by selling inexpensive items to other people who have no money. And yet he has analyzed his market to identify opportunities. If a competitor sells a pencil for 20 cents, he’ll sell the same pencil for 15 cents. He’s seen that his customers are entirely driven by price (with very little value on customer service). He undersells his competitors where he can, and then on some product lines he buys in bulk so that he can get discounts; he then wholesales these products to his competitors. When he does this he stops selling these same items at retail so that his new wholesale customers (who were formerly his retail competitors) feel comfortable in buying product from him. That way instead of competing with other retail vendors for sales, he partners with these other vendors by supplying them with their goods – and by removing one point of competition (himself) he helps promote sales by his other retail competitors, thereby driving up his own wholesale business sales.
Brilliant. Determine what you need, identify what the other side wants, and see if you can provide the other side with what they want – so that the other side can in turn provide you with what you need. Instead of beating the other side down, restructure things so that the other side’s success enhances your own.
It’s a tried and true strategy that works as well in business as it does in dispute resolution. Savvy mediators consider this dynamic one of the best tools in their toolbox. But our African friend intuited it from the business dynamics he saw at work in his local community, and he capitalized on it to bring himself up by his bootstraps. And why shouldn’t he? Human nature and dynamics are interchangeable to some extent between cultures – and if such an approach works well in the United States, why shouldn’t it work in Africa? The answer is “It does.” This kind of analysis works well in any situation where people with competing interests are involved, regardless of whether those competing interests exist in business or dispute resolution.
Robert B. Jacobs is a mediator and arbitrator with over 30 years of litigation experience. He mediates business, real estate, construction, personal injury, wrongful death, trust and probate cases. He is a designated Super Lawyer and holds an AV rating with Martindale-Hubbell. He was the 2020 chair of the ADR section of the Contra Costa County Bar Association and the co-chair of the ADR section of the Alameda County Bar Association. From 2018 through 2021 he was an update author for the CEB treatise Real Property Remedies and Damages. Reach him at [email protected].