Disputes can be defined as a lack
of compromise between parties. Disputes can also be said to arise when parties
fail to reach satisfactory bargain over an issue. Invariably the parties are
unwilling to concede to each other without the right benefit. Disputes results
when communications between parties are not effective. Facilitating effective
communication is the basic function of an ADR practitioner.
1.
ALEXANDER MCLAREN: If you want to win the world, do not hammer it, melt it.
2.
JOHN C. MAXWELL: Never use a hammer to swat a fly off someone's head. You do
not need a hammer when a broom stick can do it.
3.
ABRAHAM MASLOW: If the only tool you have is a hammer, you tend to see every
problem as a nail.
NOTES
Rather
than hammer people down, we should seek ways of pulling them up. They could
become helpers in our time of need. Don't hammer them, melt them.
We
must cultivate the habit of seeing it from other people’s point of view, this
helps in building relationship which is the big picture.
We
must know that for us to live, others must be able to live otherwise we have
murdered sleep if not now, in the future and the result will appear.
LENS
PRINCIPLE
Says that who you are determines the way you see
things. This also means that all lives experiences and what you are, colour how
you see things and this is your lens.
We are therefore advised to adopt the--
EXCHANGE PRINCIPLE
This talks about putting yourself in other people’s
shoes and picturing how we feel in other people’s situation:
This also helps in building relationships.
In his book the 3rd ALTERNATIVE, STEPHEN
COVEY suggested the first alternative as my way, second alternative as your
way, while the third alternative is the common ground or the meeting point
between the first and the second.
This, Ladies and Gentlemen I believe, is what ADR is
all about, seeking for a common ground.
INTRODUCTION
Disagreements
and disputes are synonymous with man. Every gathering of people is a fertile
ground for disputes. Life itself thrives on dispute and will be so boring
without dispute. Disputes have ways of spicing up life and that`s why I
subscribe to the saying that if two people staying together always agree on
the same thing, then one of them is not necessary or needed.
In
the course of human interaction, it is inevitable that disputes will arise
occasionally among human beings. While disputes are natural with man, the way
they are handled can have a profound impact on peace and its sustainability, it
is true that full blown disputes are always bad news for human relations as
they can lead to severance in relationship and violence.
Therefore
as human beings, we should not focus so much on the number of times we disagree
and the issues of disagreement, rather we should concentrate on how we go about
resolving these differences.
In all human relationships disputes are bound
to arise e.g. Marriage business, politics, community, workplace, association,
nations etc.
For
peaceful co existence these disputes has to be resolved.
Constitutions
of various countries have rested the judicial powers to resolve disputes in the
courts.
This
has over loaded and over burdened the courts with unpleasant consequences
e.g. time wasting, high cost, non
Participation of parties in resolution of disputes etc.
There is urgent need for alternative processes to be used in countering the challenges associated with the court system especially as it relates to the world of commerce that is moving at a pace that demands that our justice system succumb to change for it to be relevant in today's borderless world.
Alternative
dispute resolution (ADR) mechanisms therefore refers to a range of processes other than litigation
and to a reasonable extent arbitration which involves third party
intervention with the sole aim of
assisting the disputing parties in finding
amicable solution to their dispute.
It
can also be said that ADR is the collective term for those dispute resolution
processes and techniques which allow disagreeing parties to come to an
agreement short of litigation and resorting to the courts.
In
situations where reputational risk, confidentiality, flexibility of process,
speed of resolution and cost control play increasingly significant roles in
their approach to business and decision making, Alternative Dispute Resolution
(ADR) has become the preferred option.
ADR can
also be referred to as amicable dispute resolution processes. This captures the
friendly nature and atmosphere of the processes. An atmosphere that is less
adversarial in nature, accommodating, built on trust, good faith, tolerance and
the willingness to make concessions, confessions and sacrifices where and when
necessary.
Yet
again, ADR could also mean appropriate dispute resolution. In today`s parlance,
this serves as an all inclusive understanding of what ADR means and what it
should stand for. This understanding is predicated on the fact that the very
litigation which we are designing alternatives for, is also an appropriate dispute
resolution mechanism. The beauty of Alternative Dispute Resolution mechanism
lies in the fact that it provides parties to a dispute a range of options
through which their disputes can be resolved. This range of options includes
Arbitration and Mediation. It is important to state that hitherto the
conception of ADR was as an alternative to litigation (court process). In this
conception lay the flaw of ADR and its effective application. This mind-set
,set ADR up for resistance from Lawyers and those who perceived it as coming to
supplant the only way they knew how to make a living.
There is
a now a paradigm shift from seeing litigation as problem that is being fixed by
ADR, to seeing litigation as part of the options available to parties to a
dispute. Thus, litigation is now conceived as part and parcel of the ADR range
of options. The consequence of this thinking is that disputants now have the
option of accessing the mechanism that best addresses their issues and meets
their needs. There are situations where the best option available to a party is
to go to court. Where there is a disagreement as to the interpretation of the
constitution, neither mediation nor arbitration can address it. The courts are
better equipped in that regard. If however, it is a dispute within the purview
of a personal/interdependent relationship or commercial relationship, then
mediation or arbitration may be best suited in that circumstance.
This in
effect means that there are cases which for now, remains the exclusive preserve
of the courts to handle such as criminal cases, interpretation of the law,
human rights, etc. Even in some of these contexts that are exclusively reserved
for the courts, sometimes ADR processes are deployed to aid the resolution of
disputes that could be classified as criminal in nature.
African
dispute resolution is another befitting description for ADR because its origin
can be traced to the pre-colonial days as a well developed means of resolving
all manner of disputes in Africa. The colonialists came with an all
encompassing plan to re-arrange Africa both politically, intellectually,
economically and culturally. There is no doubting the fact that they succeeded
in all, but times are fast changing.
Litigation
as a means of resolving disputes is alien to African culture and tradition. Its
introduction as a mechanism for resolving disputes threw up a new set of
dynamics in our dispute resolution processes and Justice delivery systems that
did not take into account our ways of life and our value systems as Africans.
Litigation as introduced by colonialists had and still has no place for the
restoration of pre dispute relationship of the parties. The rediscovery of ADR
processes as an acceptable means of resolving disputes have re-awakened our
consciousness as a people in line with our cultural and traditional ways of
resolving disputes back in the days.
In Nigeria's pre-colonial society, disputes
were resolved by respected members of the society or by the traditional rulers
ably assisted by his council of chiefs. Customary arbitration as it is later
referred to, has similarities with the modern day Alternative Dispute
Resolution ("ADR")
mechanisms because apart from the fact that it is quicker and less technical,
it is also friendlier in nature and in most cases preserves the relationship of
the parties to the dispute. Justices in the Court system have alluded to the
cultural beginnings of Mediation in Nigerian tradition.
Oguntade JCA (as he then was) once
said “In the pre-colonial times and before the advent of the regular courts,
our people (Nigerians) certainly had a simple and inexpensive way of
adjudicating over disputes between them”.
With the advent of the British,
litigation relegated customary arbitration to the background but sooner than
later, it was discovered that the composition of the litigation process is
acrimonious and did not take into cognisance the value system of the African
society. Though litigation has the advantage of finality and sanction, in most
cases it destroys the relationship between the parties. Either by design or
coincidence, litigation with its inherence complexities became the main means
of resolving commercial disputes in Nigeria. Hence there grew the need for a
dispute mechanism that quickly resolves disputes whilst preserving
relationships.
EDR, meaning Effective Dispute
Resolution talks about matching the process to the needs of the parties in
order to use the most effective process in each situation.
A one
cap fits all situation does not apply.
The way
a carpenter or mechanic applies different tools to resolve different car or
furniture problems, same way ADR experts are expected to apply different
processes to resolve different disputes.
It is
important at this stage to state that: The constitutional status accorded
Arbitration and other ADR processes for the settlement
of disputes is complementary to the judicial
powers conferred on the Courts by
the Constitution.. ADR
processes are not about to and cannot take over the functions of the courts.
This will enable practitioners and public to glean from the benefits of each
process.
SOME OF
THE REASONS WHY THE USE OF ADR IS ON THE RISE IN NIGERIA.
DELAY:
One of the major reasons why ADR is gradually becoming a household approach to
dispute resolution is because of the delay suffered by Litigants in the normal
court system. For you, our elder cousins in the legal profession, you will
agree with me that you only know the day you file a case in court, you do not
know how long it will take you to come out from it. I was told by a friend who
is a legal practitioner that the Supreme Court of Nigeria is currently handling
cases (civil) filed in the year 2005, and we are in 2015. It is not easy to say
precisely how long it takes a civil case to get to the supreme court but let`s
just take five years as bench mark, when you add the five years to the ten
years gap, then we are talking of fifteen years. This does not include the
number of years it will take the Supreme Court to dispose the case. To make
matters worse ladies and gentlemen, sometimes these cases are sent back to
court of first instance. The question I now ask is where do we go from here?
Most importantly is the reason
that ADR creates the avenues and platforms for amicable resolution of already
existing or intending conflicts or disputes in such a way that it is quick,
cost less and at the same time does not infringe on the rights and privacy of
the parties. The world has become a global village. International commercial transactions
are time barred. Nobody wants to be held bound by beauricratic bottlenecks in
any business environment. Parties involved in commercial disputes want the
issues at stake resolved in record time to enable them continue with their
business and still keep the relationship alive. Most contracts today contain
ADR clauses or arbitration clauses. The Courts now refer parties to a dispute
to the multi-door Court-houses attached to the Courts in various states of the
Federation to enable them explore settlement of their dispute through one of
the ADR mechanisms available at the multi-door Court-house in order to hasten
the resolution process.
CASE
CONGESTION: The courts have become like oceans of sort which is never
satisfied. In line with the fulfillment of its constitutional role as a dispute
resolution mechanism and a revenue generating organ of government, the courts
are statutorily bound to accept any case filed before it even when the court
administrators knows they lack the capacity to handle such cases. This leads to
case congestion in our courts. These issues of case congestion in courts have
been compounded by recent events that has to do with industrial actions by
Judicial workers in various states of the Federation and the most worrisome
interference by way of closing down the courts by elected Governors as we all
witnessed in Rivers state of Nigeria.
1. PROHIBITIVE
COST: The default focus of many anytime cost is mentioned is on money and this
on its own is not entirely wrong. But there are other factors that cost besides
money. These include but are not limited to: exposure to risks and hazards,
time spent energy and damaged relationship. Aside from the physical financial
involvement as it relates to cost, when these other factors are quantified in
monetary terms (i.e. if that can be done correctly), we will discover that the
cost implication of litigation is huge. Also not to be forgotten is the
incessant appeals on judgments to higher courts, this also adds to the cost of
resolving disputes. This does in any way mean that ADR processes does not have
its own set of financial implications. Indeed, it does.
2. RESTRICTIVE
SINGLE OPTION: This refers to the regimented format in which the courts
operate. Procedures are designed to follow a particular pattern. People have
lost cases on technical grounds possibly because the cases were not filed
properly. Court processes does not accommodate enough flexibility. It thrives
on precedence. It demands that things continue today the way they were done in
the 17th century. The direct opposite of this restrictive single
option is the coming on board of the Multi door Courthouse whereby different
cases are channeled to different doors that best suits them.
3. UNSATISFACTORY
DETERMINATION OF CASES: A situation where cases are decided in favour of a
party on technical grounds cannot be said to be satisfactory. This has led
parties to most of the times file an appeal to judgments of the courts in a bid
to reverse what they perceive as injustice or miscarriage of justice. To bring
it nearer home using a typical land or communal dispute as example, what
happens most times is that one of the parties goes home celebrating while the
other goes home biting his fingers. Disputes under this circumstance cannot be
said to be satisfactorily resolved.
4. RUINED
RELATIONSHIPS: This is one of the most important reasons why ADR is on the rise
in Nigeria. As you are all aware, the courts know the law; the court does not
know the facts. This means that the courts view justice using the lens of the
law, not considering interest of the parties and the relationship that have
existed between them. These scenarios have played out in marital, commercial
and other types of disputes.
5. FLEXIBILITY
OF THE PROCESS: ADR can be flexible and adaptable. Different processes can be
devised to deal with specific disputes under specific circumstances. It is not
as rigid as litigation processes.
6. PARTY
PARTICIPATION: In ADR processes, especially mediation, parties play a
significant role in both the process and the outcome. This gives the parties a
sense of fulfillment and involvement. It also makes compliance with agreements
easy. It is at variance with litigation processes whereby the disputing parties
can only do what they are asked to do.
7. INCREASE
IN FOREIGN INVESTMENT: One area of interest to investors moving into new
environments is to understand the justice delivery system in existence there.
This knowledge helps them in deciding where to invest their money. These
investors are not afraid of the eruption of disputes in the course of their transactions, but are more
interested in knowing how quickly the disputes can be resolved to enable them
continue with their business.
8. HIGHER
RATE OF COMPLIANCE: When the ADR process deployed meets the needs of the
parties, compliance rate is increased. Also, when parties participate
effectively in the process, they will be happy to take ownership of the process
and outcome. A good example is the Niger delta militancy that the nation
experienced in times past, the government of the day deployed strategies
towards finding solutions which included military strategies that did not work.
Rather it took the intervention of some prominent Nigerian who could be trusted
and are of proven integrity to get the Niger delta boys to agree to some form
of ceasefire that has been sustained till date.
In the United States for example,
Professor Frank Sander, a Professor of Law at Harvard University,
developed the concept of multi-door Courthouses5 - a range of
alternative processes of resolution of disputes which parties can
avail themselves of. This has been replicated in Nigeria by the
establishment of the Lagos Multi-door Court House
ADR AND THE LAW:
The laws of our land have also
supported the rise of ADR by making provision for the process of ADR. Order 17
of the High Court of the Federal Capital Territory Rules provides for the
reference of matters to ADR. Similar provision can be found in the High Court
rules of other States like Lagos, Delta state, Akwa-Ibom state, Kano state etc.
These laws from the various state`s House of Assembly backing the use of ADR in
resolving disputes have made it even more attractive to our ELDER COUSINS IN
THE LEGAL PROFESSION who before now were not very comfortable adopting and
deploying processes not backed by any law. I therefore urge the remaining
States that are yet to establish their multidoor Court houses backed by law to
urgently initiate the process. Thus, there is legal basis for the practice and
application of ADR mechanisms.
.Most of the States in Nigeria
have included ADR in their Civil Procedure Rules.
Example is FCT RULES (Order 17):
“A Court or Judge, with the
consent of the parties may encourage settlement of any matter (s) before it, by
either-
n Arbitration
n Conciliation
n Mediation
n Any other
lawfully recognized method of dispute resolution process.
As you are all aware, the Federal Court of
Appeal has set up its own ADR Centres in three different judicial divisions
namely, Lagos, Abuja and Port Harcourt.
The federal High Courts have also set up its
own ADR Centres in various judicial divisions in Nigeria.
I am aware, (though cannot specifically
mention the case now) that the Supreme court of Nigeria have at least entered
the outcome of one matter that was amicably resolved as consent judgment.
Also the laws setting up various regulatory
agencies in various sectors of the economy empowers them to set up platforms
for amicable resolution of disputes. Example of some of the agencies include
but are not limited to: DPR, NERC, Bankers Committee, NCC and Nigerian Shippers
Council to mention a few.
Even NACCIMA, the umbrella body of the various
Chambers of Commerce in Nigeria have adopted what we use to know as Abuja Chamber
of Commerce Dispute Resolution Centre as NACCIMA Dispute Resolution Centre.
We consider this new feat a step
in the right direction towards creating avenues for better and more convenient
option in the resolution of commercial disputes and would surely encourage
local and international investors, boosting their confidence in having a
conducive environment to do business, resolve business disputes and most
importantly, preserve business relations as well as support economic
development.
All these examples point to one fact which is
that the future of justice delivery is pointed towards the direction of
amicable dispute resolution processes especially in commercial transactions,
matrimonial and other civil related cases.
As an Institute, our experience over the years
have been quite humbling especially in the area of training. We have had the
honour and privilege of training hundreds of High Court Judges including
various states serving and retired Chief Judges as well as Magistrates.
Similarly, we had a Chief Justice of
Nigeria Justice Mahmud Mohammed (Rtd)who
was and still is both ADR friendly and ADR compliant and he is using all
available plat forms during his tenure to propagate this gospel of ADR in
Nigeria. One of the strategies he adopted was to encourage the Chief Judges
from states where Multi door Courthouse does not exist to put plans in place
for the establishment of a Multi door Court house in their states. He is one of
the greatest apostles of ADR in Nigeria.
Now my argument is this, if the great minds
that are occupying the Bench are coming back to acquire the ADR skills knowing
that it is the future of justice delivery, what then are those of us who stand
before them to present our matters waiting for?
I am a strong believer in the saying that: you
cannot continue to do the things same way over and expect a different result.
Somebody once told me that that is one of the shortest definitions of madness.
The Legal profession have come of age and is
still growing in leaps and bounds however, as a globally recognized and
foremost profession, the time has come for you to stop and look back to confirm
if the disputing public whom you are leading are still following. This has
become necessary because for us to remain in business our clients must be happy
with our services. If our clients are clamouring for change, it will only be
wise for us to adapt to the reality of the time. For some, this may not be easy
but it is achievable.
AVAILABLE ADR TRAINING PLATFORMS:
When it comes to Mediation training in Nigeria
today the organization to deal with is the Institute of Chartered Mediators and
Conciliators (ICMC).
Beyond training, we have assisted various
states Judiciary in setting up their Multi door Courthouses. Some of the states
we have worked with includes: Delta, Ogun, Oyo, Edo, Plateau etc.
In some of these states, we`ve trained
traditional rulers, youth leaders, religious leaders, legal practitioners,
judicial officers, town union executives, market leaders and opinion leaders
etc.
Other bodies include: Chartered Institute of
Arbitrators (CIArb UK), NICArb and Mediation Advocates etc.
International donor Agencies are also
providing platforms for training though their trainings are tailored to
specific programmes that they are engaged in. these agencies include GIZ,
USAID, DFID, UNODC, UNDP, SEARCH FOR COMMON GROUND etc.
SOME ADR
PROCESSES:
ADR can be categorized into two
groups for the purpose of this lecture namely: the non-binding ADR and the binding ADR.
The non-binding ADR includes negotiation, mediation or
conciliation and neutral evaluation. These methods are mainly consensual and
reconciliatory.
Binding ADR includes arbitration and other adjudicatory ADR
methods. The same applies to some hybrid processes like
mediation-arbitration, otherwise known as Med-Arb, arbitration- mediation known
as Arb-Med. Others include meditative conciliation, lit-med
(litigation-mediation). Even in recent times one hears words like post judgment
negotiation or Lit-Med etc.
I shall now discuss a few of
the ADR processes mentioned above.
NEGOTIATION
It is a process where two or more parties to a
dispute engage themselves directly with a view to finding solution to their
dispute.It is also a bargaining relationship between parties who have a
perceived or actual conflict of interest.
It is
defined as communication for the purpose of persuasion.
It involves a process in which parties to a dispute discuss possible
outcome directly with each other, they exchange proposals, make circumvents and
continue discussion until a solution is found or a deadlock ensues. Everything
you are looking for is in the hands of somebody, hence the
need to negotiate to either get what you need or exchange what you have in your
hand with what you need that is in another person's hands.
Both way,
you give or part with something to get something and that is what negotiation
is all about.
However, the
way you go about getting this thing you need is a different matter entirely.
Whether you will succeed or fail in getting what you want depends on the
approach you adopt.
In this
life everybody needs everybody, for no man is or can be an island. Usually,
negotiation consists of a “quid pro quo” of sorts which is the giving up
of something in other to get something else in return.
Nothing could be simpler or broader than
negotiation. Every desire that demands satisfaction and every need to be met is
at least potentially an occasion for people to initiate the negotiation
process. Whenever people exchange ideas, confer for agreement, it is affected
by the need to negotiate.
TYPES OF
NEGOTIATION
Positional
(competitive) bargaining strategy.
Principled
(problem solving) strategy.
The
positional negotiation strategy is competitive and each party wants to get the
biggest advantage out of it to the detriment of the other party. It is
characterised by a winner takes all mentality. It is seen as a battle that must
be won. It is either my way or no way. It leaves one party holding the short
end of the stick. It is not interested in restoring pre dispute relationship.
Principled
bargaining.
This
problem solving strategy was designed as an alternative to the positional
strategy. This method advocates a win-win situation and encourages a problem
solving approach. It is a mind that is willing to accommodate the interest of
all parties. Does not see negotiation as a do or die affair. Is willing to
sacrifice something in order to accommodate the interest of the other party.
Willing to give the other party soft landing even when he /she can have his/her
way. Interested in restoring relationship.
MEDIATION
Mediation
involves one or more non-binding, voluntary, structured meetings between
disputing parties, chaired by a neutral third person whose purpose is to help
the parties negotiate and hopefully resolve a contentious problem.
In
an ideal mediation, the meeting or meetings will be organised and transpire
along the following lines:
The parties will agree to meet together with an impartial
mediator in order to try settle the dispute through negotiation with the
mediator’s help.
The
mediator will establish a positive and
constructive atmosphere, setting ground rules and guidance for
respectful and productive interaction between the parties.
Each
of the parties will explain to
the other party and the mediator its account of the facts, its goals and its
perspectives on the matter.
Each
of the parties will listen to the
other with a view to understanding where it is coming from.
The
mediator will help the parties explore their
underlying interests and choices, sometimes together, and sometimes separately.
The
parties, enlightened by a deepened understanding of their needs and the options
before them, will negotiate with
each other with the assistance of the mediator.
Where
possible (as it often is), the parties will reach and sign an agreement and
thereby settle their dispute.
A
mediator will not take sides or make decisions on behalf of the parties, but
will assist them in sharing information, identifying goals and discussing
options.
Mediation
sessions are confidential. Any information shared in the sessions as well as
the outcome (settlement agreement) will not be disclosed to outside persons.
Consensus
participation by parties.
May be
ordered by court hence involuntary.
May also
be required by contract and or legislation.
Mediation
process is flexible and informal. The process of mediation is non-binding. Only
the outcome is binding.
Mediation
is not about who is right and who is wrong rather; it is more about what the
parties can live with going forward. It is about the future, not the past.
ARBITRATION:
Definition:
Arbitration
is a dispute resolution procedure under which parties agree to be bound by the
decisions of the Arbitrator/s whose decision in general is final and legally
binding.
ARBITRATION
AGREEMENT
This
is the basis of Arbitration and will determine to a large extent the success or
failure of the process.
It
can predetermine a lot of issues between the parties.
It
is separate from the contract agreement itself: doctrine of sap arability.
Arbitration
clause survives the contract.
FORMS
OF ARBITRATION
Domestic:
This takes places between parties in the same jurisdiction and holding within
the jurisdiction.
International:
This takes place between parties in different jurisdiction.
Adhoc:
Not run by an Institution.
Institutional:
Run by an Institution: Ciarb, ICC, and LCIA.
Statutory:
Made compulsory by statute.
APPOINTMENT
OF ARBITRATOR
Several
sources of appointment: by parties, by the court, by statutory bodies.
Duty
of disclosure: Arbitrators must disclose any information regarding impartiality
and independence.
Impartiality
and independence.
Challenge
to the appointment of an Arbitrator.
(a) An arbitrator may be challenged only if
circumstances exist that, from the perspective of a reasonable third person
having knowledge of the relevant facts, give rise to justifiable doubts as to
his impartiality or independence, or if he does not possess qualifications
agreed to by the parties.
(b)
An arbitrator shall decline to accept an appointment or, if the arbitration has
already been commenced, refuse to continue to act as an arbitrator if he or she
has any doubts as to his or her ability to be impartial or independent.
(c)
Justifiable doubts necessarily exist as to the arbitrator’s impartiality or
independence if there is an identity between a party and the arbitrator, if the
arbitrator is a legal representative of a legal entity that is a party in the
arbitration, or if the arbitrator has a significant financial or personal
interest in the matter at stake.
(d)
A party may challenge an arbitrator appointed by him, or in whose appointment
he has participated, only for reasons of which he becomes aware after the
appointment has been made.
JURISDICTION AND POWERS OF AN ARBITRATOR
Jurisdiction
is the authority of the arbitrator to act.
It
represents the boundaries an arbitrator or tribunal appointed to deal with
specificcase must not go beyond.
Sourced
from party agreement and matters submitted to arbitrator.
Powers
of arbitrator comes from agreement and law. It empowers arbitrator to determine
procedure, rule on his own jurisdiction, extend time, write awards, competence
of the arbitrator, administer oaths etc.
HY-BRID
PROCESSES:
As
I stated earlier on, the ADR Spectrum comprises of several options available to
parties to a dispute. Some of those options are hybrid processes. Practitioners
have always used hybrid processes though maybe not consciously. If I file a
matter in court and in the course of the proceedings, parties either of their
own volition or at the prompting of counsel or encouraged by the court attempt
settlement out of court, what they usually engage in is a hybrid of processes.
Thus, they could start in litigation and end up mediating.
Consequently, hybrid processes like Med-Arb, Arb-Med and a host of others are
not uncommon in ADR practice. They have the advantage of offering parties a cocktail
of options especially in a situation where issues are hydra-headed, complex or
parties are not cooperating effectively.
MED-ARB:
In
the case of Med-Arb parties begin at mediation and then end up at arbitration.
This allows for a certainty of outcome whilst also addressing all the issues
between the parties. Let’s say parties have ten (10) issues in dispute. They
have agreed on seven (7) but are unable to agree on the three remaining issues.
Instead of allowing the deadlock on the three issues to truncate the entire
process, they can enter a settlement agreement in mediation with respect to the
seven (7) issues and then submit the three remaining issue to arbitration for
determination.
ARB-MED:
With
regards to Arb-Med, you start with Arbitration and end in mediation. This
hybrid process is particularly appealing to parties who are skeptical about
submitting to mediation because of its flexibility, informality and non-binding
nature. Thus, mediation can be criticised for some degree of uncertainty of
outcome. Parties begin with arbitration, which has certainty of outcome, and at
the end when the award is ready are encouraged to attempt mediation. If they
reach a settlement in mediation, the settlement agreement is entered as consent
award and substituted for the initial award.
LIT-MED:
It
is also commonplace to see parties start in litigation and end up in mediation.
This has been referred to by some as Lit-Med.
MEDIATIVE
COMCILIATION:
Parties
may also start in mediation and end in conciliation. This could be referred to
as mediative-conciliation. This meditative- conciliation process is a brain
child of a Nigerian Legal luminary by name, Barrister Tim Anago and he owns the
franchise. The developments with regards to the use of hybrid processes are
evolving. There is greater reliance on the use of hybrid processes today. By
resort to the use of hybrid processes the issues between the parties are
resolved one way or the other.
PILLARS
OF ADR
CONFIDENTIALITY:
Where the subject matter of the dispute is sensitive, for an example an
invention or technical know-how details / trade secrets, which parties may not
want exposed to the public, or where the exposure or disclosure of the facts
would be detrimental to a party, ADR maintains the privacy of the process,
parties and the outcome as against the conventional settlement through court.
Every
aspect of the ADR process including the settlement agreement is kept
confidential except where its disclosure is required by law.
VOLUNTARY
PARTICIPATION: ADR processes are generally voluntary as it related to
participation except when it is ordered by a court, included in a contract
agreement binding both parties or ordered by statute.
INFORMAL
NATURE: ADR processes are less formal than the traditional court process. In
most cases the rules of procedures are flexible, without formal pleadings,
extensive written documentations and rules of |evidence. This informality is
what is attractive and appealing to disputants, who may be intimidated by or
unable to participate in more formal system.
PROMOTES
FAIRNESS: ADR mechanisms are instruments for the application of equity rather
than the rule of Law. This is so because each case is decided by a third party
or negotiated between disputants themselves based on principles and terms that
agreeable and fair in the particular case rather than on uniformly applied
legal standards.
INVOLVES
PARTY PARTICIPATION: Another major characteristic of ADR is the direct participation
of disputants in the process and designing of the settlement. This allows for
an opportunity for reconciliation between parties and an atmosphere for result
oriented, quick and cheap dispute resolution
ADVANTAGES OF ADR
FLEXIBILITY:
ADR rules and procedures are flexible and simple and also easily adaptable to
various types of dispute. Parties are empowered to conduct such proceedings in
such a manner as it considers appropriate so as to ensure fair hearing.
Resolutions are also tailored to parties needs.
RISK-FREE:
communications are without prejudice and if no agreement reached, parties can
pursue other options. May assist in clarifying and narrowing issues, and
fostering climate of openness, co-operation, and collaboration, even if a settlement
is not reached.
ACCESS
TO JUSTICE FOR ALL: ADR processes have made it possible for indigent members of
the society who ordinarily could not afford the services of legal practitioners
to access Justice without having to think about cost. Yet again, I must commend
what the Lagos state Ministry of Justice has done by the creation of agencies
that are meeting on a daily basis, the needs of Lagosians as it relates to
Justice delivery.
REDUCTION
IN CASE DOCKETS FOR JUDGES: Please permit me to refer to Lagos State Judicial
system once again. It is on record that the Lagos state Judiciary has invested
a lot to be where they are today. In fact, I can say without fear of
contradiction that Lagos state Judiciary has become a reference point when it
comes to ADR and related issues in Nigeria. Ordinarily, there are cases (civil)
that should have no business being in court except where the parties on their
own could not find areas of agreement. This simply means that the Multi door
Court houses, Citizens Mediation Centre, Office of the Public Defender, etc
have succeeded in taking a whole lot of heat off the work load of the Judges in
Lagos State. It also goes to say that the Honorable Justices in the state will
devote more time and energy to deal with more serious issues. This also applies
to all the states in the Federation where these agencies are in operation.
SAVES
TIME: ADR procedures saves time, as going through traditional court of law to
resolve cases involves procedures that are time consuming.
The
processes of obtaining evidence, presenting the evidence, preparing witnesses
and the defense proceedings takes time. This time involvement has been
attributed to delayed justice in some quarters. Procedures of ADR are notably
quicker in reaching decisions.
PARTY
SUPREMACY: The parties involved in the dispute have the control over the speed
at which a resolution is reached in contrast to cases decided in a court of
law. That is why we say to each other that when disputes are resolved, let the
mediator not take all the glory because it is actually the parties that
resolved the matter themselves. Also, when parties fail to resolve the issues
in dispute, the mediator should not take all the blame because it is the
parties that failed. This is part of the reason why we encourage practitioners
to deal with the issue of fees from the onset, if that is not tied up and the
matter gets resolved, the parties may not see the need to pay for your services
justifying it with the fact that they
are the ones that resolved their own matter by themselves.
CHEAP:
The cost of seeking the services of a legal practitioner, obtaining evidence
and processing such evidence, etc. may be enormous when compared to the cost of
resolving disputes via the alternative dispute resolution methods.
INCREASED SATISFACTION AND
COMPLIANCE: The parties at the end of the day come to a common ground whereby
each is happy with the outcome. This may not be the case for matters resolved
in a law court, where one wins and the other lose. One of the parties is happy
about the final decision of the judges while the other is left aggrieved. Some
time, the aggrieved party looks for opportunity for further litigation, through
appeals in higher court of law. Issues of appeal do not suffice in alternative
dispute resolution has each party reaches a mutually beneficial agreement that
satisfy their aspirations. The parties' involvement in the process creates
greater commitment to the result so that compliance is more likely
PRESERVES
RELATIONSHIP: Where the parties have good business relations which they wish to
preserve ADR improves and sustains cordial relationship among parties. When
disputes are resolved through means provided by alternative dispute resolution,
the parties are left happy and they can continue to develop existing
relationship. Most time, alternative dispute resolution fosters better
understanding among parties and individuals. This is because, during the
process of dispute resolution, the cause(s) of disagreement are presented and
an understanding is fashioned out through bargaining which is based on the
interests of the parties.
LESS ADVERSARIAL:
ADR provides platform for informal and less confrontational means of dispute
resolution. It avoids placing the label “wicked enemy” on the other party but
rather creates a friendly atmosphere for dispute resolution. The parties own
the decision and therefore would be committed to maintaining it.
SUPPORTS FOREIGN INVESTMENT: It
supports economic development by reducing cost and improving the investment
climate in developing countries.
Gives parties opportunity to tell
their story as they see it. This is because some parties in for long period of
time may never have had the privilege of stating their own side of the story in
their own words without being teleguided by either prosecuting or defence
counsel as the case may be.
Limitations of ADR and my humble
opinion on them.
ADR
is limited in some instances irrespective of its advantages. Some of its
limitations include:
1. Inability
to decide criminal matters.
2. Some say
ADR adds to the cost of resolving disputes because if the parties fail to agree
on the contentious issues, the matter will be referred back to the courts where
they claim the matter should have been referred to in the first place. This is
sometimes the default line of thought of some who had not seen the need to
pause for a second to quantify in monetary terms the relationship that is about
to be destroyed by the escalation of the dispute.
3. Due to the voluntary nature of ADR, a party
may refuse to accept what is termed as the best resolution and therefore,
refuse to comply with the mandate of the award.
This
is where the multi door court houses nationwide comes in handy because when the
settlement agreements are filed there for stamping and endorsement by an ADR
Judge, which makes the settlement agreement a consent judgment of the court,
failure to comply will amount to failure to comply with a court judgment.
MY
SPECIAL APPEAL TO ALL:
Neither
the ADR processes nor the Litigation process is perfect. Both processes can be
likened to what transpires in a marital union that brings two imperfect human
beings together. Each of the parties in this marital union brings along with
his /her strengths and weaknesses. It is therefore left for both parties to on
their own terms work out what is acceptable to both of them. This is not meant
to be easy and requires patience, tolerance, encouragement and all manner of
deliberate effort from both parties to ensure that both processes complement each
other.
I
therefore enjoin all stakeholders to put our minds to it in ensuring that both
the Litigation and ADR processes survive.
Mediation
for example is not about who is wrong or who is right, it is not a battle of
legal issues. Mediation does not judge the past rather, it plans the future.
Mediation is saying this where we are, what`s the way forward?
ADR
especially Negotiation and Mediation believes that when people’s interest,
values, needs, concerns and fears are taken care of, most times the matters die
a natural death. This accounts for the deep satisfaction that parties enjoy
whenever they are satisfied with the process and are carried along every step
of the way.
The
needs, concerns, fears, interests and values are sometimes some of the aspects
of dispute resolution that are not well taken care of in litigation hence the
endless appeals to higher courts.
For us
in the ADR profession, justice is about the parties been satisfied with the
outcome irrespective of the process and where it took place. It must not be a
formal setting. It can be under a mango tree, what matters is the satisfaction
of the parties.
I am
therefore saying that to the members of the noble profession, you are the
gatekeepers of justice delivery and ADR is not about to take that role away
from you. My candid advice to you all is to equip yourselves with the requisite
skills set that will position you for the challenges of the 21st
century and beyond.
I thank
you all for having me and for your kind attention.
Chidy Lasbrey
Martins FICMC, MNICArb, ASCMA.
08099359008.
Email:
[email protected]