THE PROPRIETY OF THE ALTERNATIVE DISPUTE RESOLUTION MECHANISM IN NIGERIA

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ABSTRACT

It is a fact that the recognition of Alternative Dispute Resolution (ADR) as a method of dispute resolution has grown by leap and bound in recent years. This perhaps, is as a result of the mounting pressure on the dispensation of justice to look inwards for more societal friendly means of resolving conflicts which are inevitable in our society. The adjudicative system of resolving disputes between parties has been the most common known both domestically and internationally. Unfortunately, however in recent years our litigation system has become very remote and unapproachable for many of the people in our country because it is very expensive and it takes quite a long time to determine cases. In most instances, it takes years to see a suit from start to finish. The more time it takes the more money it costs. As a result of litigation becoming inaccessible to vast majority of the people in the remote areas, a new industry evolved known as Alternative Dispute Resolution (ADR). However, the focus of this paper is on and its effectiveness in resolving disputes.

CHAPTER ONE

INTRODUCTION

1.1              Background of the Study

The Law Reform Commission defined Alternative Dispute Resolution (ADR) in its consultation paper as “a broad spectrum of structured processes, including mediation, and conciliation, which does nor include litigation though it may be linked to or integrated with litigation, which involves the assistance of a neutral third party, and which empowers parties to resolve their own disputes.[1] Disputes are quite inevitable in any societal context. Humans are bound to disagree on and at almost every point in life. The fact that disputes occur should not be the crux of the matter, rather their management and resolution.

Before the introduction of the formal court system, disputes and settlement of disputes were part of human existence. In fact, it has been noted by commentators that Alternative Dispute Resolution (ADR) processes are not new; they have just been rediscovered as informal justice mechanisms which have long been the dominant method of dispute resolution in many societies, especially in indigenous communities.

The Nigerian judicial system recognizes Alternative Dispute Resolution, and sometimes uses Alternative Dispute Resolution (ADR) as a viable tool for settling disputes in a less confrontational manner, thus saving costs and decongesting the courts. However, Alternative Dispute Resolution is not without their peculiar challenges, strengths and weaknesses, these peculiarities are the major framework for this study. This paper therefore aims to address the applicability of Alternative Dispute Resolution (ADR) and how Alternative Dispute Resolution (ADR) can be used to address the realities of the social causes of reducing the hardships caused by over dependence on formal litigation processes. A decision reached in Alternative Dispute Resolution (ADR) may be binding or non-binding.[2]

There is a growing acceptance and use of the formal methods of dispute resolution both within the formal legal system and in private disputes. Since court based alternatives to Litigation are set up in specialist institutions and in general courts. Methods by which cases are applied have profound effect on the outcomes of disputes processed under them. Infact, measurement of success may vary, depending on the methodology employed to produce or extrapolate data.

            Alternative Dispute Resolution (ADR) has proven to be a valuable pillar in enhancing access to justice, brining less costly consent-based dispute resolution to businesses in many emerging economics.  Alternative Dispute Resolution (ADR) mechanisms are gradually being mainstreamed into the justice system in Nigeria in the effort to improve the pace of justice delivery in a complex society as Nigeria.

            Conflict is inherent dimension of human relationship and an undercurrent of social relations. Disputes are part of our culture. They are frequently the driving force behind the decision making process, and the reason rights are often wronged. The primary mechanism that allows us to solve our disputes has been, by default, court intervention. This structure known as the civil justice system is a procedural device created by government as the final option to solve our disputes.

            One of the major functions of law, therefore, is to provide reliable and objective systems for members of the society to resolve their disputes. The dispute settlement systems differ from one society to another. Integrating Alternative Dispute Resolution (ADR) into the court system as done in jurisdiction such as the United States of America and United Kingdom is one approach that those societies have adopted to improve their system of dispute resolution. In other Alternative Dispute Resolution (ADR) procedures such as mediation, the third parties do not formally adopt a position on the possible means of resolving the disputes but simply help the parties come to an agreement. Alternative Dispute Resolution (ADR) processes was then classified into “facilitative Alternative Dispute Resolution (ADR) processes” and “advisory Alternative Dispute Resolution (ADR) processes”.[3]

Nigeria, beginning in Lagos State, Federal Capital Territory (FCT), Edo State and Akwa Ibom State took a bold step to introduce ADR into their court system. Alternative Dispute Resolution being the use of methods such as mediation or arbitrations to settle or resolve dispute without resort to litigation. Professor Frank E. A. Sander and Professor Mariana Hernandez Crespo of Alternative Dispute Resolution (ADR) research network came up with a programme that was designed to create inclusive problem – solving models that utilize social capital and consensus building technique (i.e dispute resolution processes that include the voice of all stakeholders, especially the disenfranchised members of a community. Although the acronym “ADR” and the word “ARBITRATION” are known to many, it will still not be out of place to briefly define, explain and/or discuss same in view also of my research on the topic.

Alternative Dispute Resolution (ADR) simply refers to any means of dispute resolution outside litigation in a courtroom. It is to form a facilitated settlement, which is confidential and without prejudice. Consequently, the details of the process need not usually be disclosed to the court. The main feature of this system of dispute resolution is the absence of an imposed sanction as the mediator decides nothing and awards nothing. He merely assists the parties to arrive at a settlement. Thus, while the mediator controls the process, the parties control the outcome. Alternative Dispute Resolution “ADR” has also been defined by Black’s Law dictionary.[4]

Procedure for settling disputes by means other than litigation; e.g by Arbitration, mediation, mini-trials. Such procedure which are usually less costly and more expeditious, are increasingly being used, in commercial and labour disputes, divorce actions, in resolving motor vehicle and medical malpractice tort claims, and in other disputes that would likely otherwise involve court litigation.

Regardless of the name assigned to this form of dispute resolution, however, diverse schemes of Alternative Dispute Resolution abound among which are mediation, Early Neutral evaluation, med-Arb, negotiation, facilitation, mini-trial or Executive Tribunal, Fact-finding,   conciliation etc and each has its own characteristic features. Although they all have many things in common as opposed to litigation, from available data, the two most common forms of Alternative Dispute Resolution are Arbitration and Mediation. While in some countries, including Nigeria, Zambia etc, Arbitration is leading form of ADR, Mediation is the arrow head in some other countries.

For the first time in Nigeria, Arbitration and other forms of Alternative Dispute Resolution (ADR) is given constitutional backing as a means of settlement of disputes. Specifically,[5] Section 19 (d) of the Constitution of the Federal Republic of Nigeria (CFRN) 1999, provides for settlement of disputes by Arbitration, Mediation, Conciliation, Negotiation and Adjudication. This is in recognition of the crucial role Arbitration and other forms of Alternative Dispute Resolution (ADR) now play on the resolution of various types of disputes.

The constitutional statutes accorded Arbitration and other forms of Alternative Dispute Resolution (ADR) for the settlement of disputes is a complementary role to the judicial powers conferred on the courts by the constitution. through the use of Alternative Dispute Resolution (ADR) in courts, the following has been achieved; lower case load and expenses, faster resolution of the claim, improved public satisfaction with the justice system, flexible resolutions, increased compliances with the terms of the final disposition of the claim, and accessible forums to resolve disputes.[6]

1.2       Statement of Problem

            One of the functions of law over the years has the continued strive to evolve an efficient means of resolving disputes in our changing world. It is a formal process requiring that disputants, the witnesses appear before courts or tribunals established by law to resolve their dispute. Alternative Disputes Resolution (ADR) is being reasoned as an amiable way of settling disputes but this does not sit well with some litigants, they view the prospect of litigation as an opportunity to emerge the victor of the case.

            Others feel that the requirement that people have to tell the truth and directly address questions that are posed to them by opponents, can be remarkable effective in trusting away a lot of the obfuscation that accompanies debates in other less formal venues. Sometimes, during the course of implementing Alternative Dispute Resolution (ADR), resolution is not guaranteed and they are limits on arbitration awards (they can only resolve disputes that involve money) and if the party is nor satisfied with the decision of the arbitrator, the court may order a non binding arbitration, which will still lead both parties back to litigation.

            Amplifying further on this, until recently, Alternative Dispute Resolution (ADR) processes have always operated exclusively outside the formal court system such that, its effectiveness depended to a large extent on the good faith of the parties both for implementation and enforcement of agreed settlements. For instance, in the Federal Courts of the USA, what the law required is that all federal distinct courts establish an Alternative Dispute Resolution (ADR) programme. From 1984 through 1992, in law journals from layer, Wiscousin, Harvard, 10wa, George Washington, Florida state law and social inquiry, among others, scholars seriously questioned both Alternative Dispute Resolution (ADR’s) purported benefits and prevailing methods for evaluating Alternative Dispute Resolution (ADR)’s risk.[7]

More particularly, certain critics expressed concern about the impacts of informalized and privatized dispute definition and resolution upon societal “outsiders” racial minorities, women and the poor; those traditionally of lesser power in the society.[8] In view of congestion in Nigerian prisons as the result of awaiting trail, there is urgent need therefore, to resort to methods of Alternative Dispute Resolution (ADR). The researcher is set out to examine this problem, provides possible remedies to the fact, there is need to establish Alternative Dispute Resolution (ADR) programme in courts to decongest the court system in Nigeria.  

1.3       Research Questions

The concepts of Alternative Dispute Resolution (ADR) have set fourth some doubts in the minds of some individuals.  To a certain extent, some courts put forth also some questions as to;

1)                     That since there is a growing acceptance and use of Alternative methods of dispute Resolution, if witnesses in multi-door court can be relied upon to say the truth, since they are not liable to give evidence under oath or affirmations.

2)                     Whether there is a clear cut difference between litigation and Alternative Dispute Resolution (ADR) processes.

3)                     Can an order of a non-binding arbitration discourages parties form using the Alternative Dispute Resolution (ADR) medium?

4)                     Whether the options available to disputants for the settlement of their dispute are adequate?

5)                     Whether there are new trends on dispute resolution, yet to be codified and applied in Nigeria?

1.4       Objectives of the Study

            They are a number of reasons identified as objectives that the Alternative Dispute Resolution (ADR) processes intend to achieve in the course of this research, they include;

1.            Use of resources efficiently

2.            Resolving of disputes as early as possible;

3.            Resolving or limiting the issue in dispute

4.            Produce outcome that are lawful, effective and acceptable to the parties.

5.            Enhance the satisfaction of the parties            

However, such objectives can only be reached if tribunals such as “multi-door courts’ are set up. These enables the utilization of a range of Alternative Dispute Resolution (ADR) processes that meets the difference needs of the parties in each application. Moreso, Professor Fiss starts by arguing that often times consent is coerced to participate in Alternative Dispute Resolution (ADR) process (and consent to accept the ultimate settlement),[9] be analogizes settlement to plea bargaining in a criminal trial. Prof. Fiss also argues that the absence of a trial and judgement makes subsequent judicial intervention difficult.[10] He argues “judgement is not the end of a lawsuit but only the beginning”.

1.5       Significance of the Study

            The study will make provision on information as to how disputes can be settled amicably with the need to maintain public confidence in the Alternative Dispute Resolution (ADR) system. Understanding and with careful examination of this concept will give a fair means to measure the effectiveness of Alternative Dispute Resolution (ADR) proceeding over litigation. The work will be of a great value to Legal Aid Councils, Legal Practitioners and the general public.  Some judges also view the methods as a quick way to dispense justices. Moreso, student of law department will also benefit greatly from this work.

1.6       Scope of the Work

            This work is sub-divided into five chapters. The opening chapter offers a general overview and introduction to the subject matter of the study, the problems it seeks to tackle, the research methodology employed, the scope of the study and a detailed literature review.

            The second chapter diverts into Alternative Dispute Resolution (ADR) and the various mechanisms it entails and development.

            Chapter three focuses mostly on the Traditional Nigerian Dispute Resolution system and Adversarial system and also the Litigation Approach to Alternative Dispute Resolution (ADR) and moreover, the advantages of Alternative Dispute Resolution (ADR), the fourth chapter also analysis the concept of Multi-Door Court House and its relevance to the role in tackling delayed justice dispensation.

            Finally, chapter five examines the challenges of the study as well as recommendation and possible solutions.

1.7       Methodology of the Research

            The method of research which will be employed in this study will be an empirical analysis. This would involve references to Library based and thorough deskwork, hard copies of academic materials  obtained from the Library and online sources, books articles, journals, report, newspaper and other relevant sources of data.

1.8       Literature Review

            The concept of property of the Alternative Dispute Resolution (ADR) mechanism in Nigeria is still a shaky toddler, learning to walk and trying to find his balance. There seem to be not a lot of literature and references in Nigeria in regards to Alternative Dispute Resolution (ADR) due to the early acceptance of the concept to Nigeria’s judicial system. However, the literature on this subject matter is not totally non-existent.

            According to Kehinde Aina,[11] a partner in the law firm of Aina, Blankson & Co, established the Negotiation & Conflict Management Group (NCMG) in 1996 as the non-governmental organization to advocate the expansion of Alternative Dispute Resolution (ADR) in Nigeria and unwire the introduction of the multi-door court house concept into the Nigeria Legal System. His speech at the official lunch of the Lagos Multi-door Court (LMDC) on Tuesday June 11, 2002 is most instructive of the purpose underlying its establishment.

            Kehinde Aina defined Alternative Dispute Resolution (ADR) as a “range of dispute resolution processes or mechanisms designed and available outside of, but supplementing to litigation”. He went further to list the processes to include; Negotiation, Mediation, Arbitration, Neutral-Evaluation as well as Hybrid processes like Med-Arb and Lit-Med. In his opinion, however, mediation is the most prominent of this mechanism while arbitration is the best known.

            Moreso, the Dispute Resolution Spectrum as suggested by Goldberg, Sander and Rogers[12] is arranged in a hierarchy of least formal to most formal being litigation. All other mechanisms fall in between this two on the spectrum.[13] Prof. Schimtthoff[14] stated inter allia “it is a truism to state that Arbitration is better than litigation, conciliation better than arbitration and prevention of legal disputes better than conciliation. Nigeria and African continent as a whole are no stranger to ADR as informal methods of resolving dispute by arbitration.

            In accordance with Prof. Justus A. Sokefun[15] Arbitration is nor a new phenomenon in Nigeria and indeed in Africa as whole. It is usually a means of resolving conflicts with a view of maintaining harmony between parties in a dispute. Ezesifor Gaius defined Arbitration thus; “Arbitration refers to the settlement of a dispute between two or more persons after hearing the parties in a quasi-judicial manner y person other than a competent court. “An exercise is not arbitration if it does not answer this definition”.

            [16]Arbitration in Alternative Dispute Resolution (ADR) has again been described as a simple voluntary procedure chosen by parties who want a dispute determined by an impartial judge of their own mutual selection whose decision based on the merits of the case they agree in advance to accept as final and binding; The case of MISRI (Nig) Ltd. v. Oyedele. Arbitration sometimes is usually not classed as an ADR procedure[17] unlike other Alternative Dispute Resolution outcomes, an arbitral award is final and binding. Arbitration is a term used to describe a process to settle disputes between two or more persons by referring to an impartial third person or persons known as arbitrators specially appointed for that purpose.

            An arbitral award is at per with a judgment of the court as recognized by the Supreme Court in the case of Ras Pal Gazi Construction Co. Ltd v. FCDA[18] in that case the Hon. Jusitce Katsina-Alu pronounced thus; “Arbitration proceedings as I have already shown are not the same thing as negotiations for settlement out of court, an award made, pursuant to arbitration proceedings constitute the final judgment on all matters referred to the arbitrator. It has a binding effect and it shall upon application in writing to the court be enforceable by the court… I must say, nowhere in the Act is the High Court given the power to convert an arbitration award into its own judgment. Other Alternative dispute resolution procedures are non-binding but voluntarily accepted or negotiated solutions to disputes.          

[1] LRC Cp 50 – 2008 at pg 212

[2] Discussion paper for the inquiring into Alternative Dispute Resolution (Victoria Parliament Law Reform Committee, September, 2007).

[3] See Law Reform Report (LRC) CP50 – 2008 at 2.16 – 2.125. Other Alternative Dispute Resolution (ADR) categories included; Preventive Altenative Dispute Resolution Processes, Determinative Alternative Dispute Resolution (ADR) Processes, Collective Alternative Dispute Resolution (ADR) Processes and Court Based on Alternative Dispute Resolution (ADR) Processes.

[4] Black’s Law Dictionary, Sixth Edition @ pg 78

[5] CFRN (as amended) see 19 (d)

[6] Stephen Goldberg, Frank Sander, Nancy Rogers & Sarah Cole, Dispute Resolution: Negotiation, Mediation, Arbitration, and Other Processes, 6 96th ed. 2012.

[7] Pumizing the Risk of Prejudice in Alternative Dispute Resolution, 1985 WISL REV 1359

[8] Mari J. Matsuda, Looking in the Bottom: Critical Legal Studies and Reparations, 22 HARV CR. CLL REV 323 (1937).

[9] He argues that a driving force in the decision to settle in the amount of resources with which a party has available for litigation. The fewer resources a party has to litigate, the more compelled it will be to reach a settlement. The resources of parties in a dispute are rarely equally distribute, pressuring one party towards a settlement.

[10] Generally speaking there is very limited judicial review of some ADR processes, for example Arbitration.

[11] Kehinde Aina, a fellow of Ashoka is the founder of the Negotiation and Conflict Management Group, which in collaboration with the Lagos State Judiciary established the Lagos State Multi-door Court, a court annexed ADR centre.

[12] Kehinde Aina-Med-ARB; A valuable settlement strategy – Essay in honour of Hon. Jusitce D. F. Akinsanya. Pg.4.

[13] Stephen B. berg , Frank E. A. Sander and Nancy H. Rogers, Dispute Resolution: Negotiation, Mediation, and other processes (little brown and company, 1992): Leonard L. Riskin and James E. Westbrook, Dispute Resolution and Lawyers (West Publishers Co: 1987).

[14] Professor Schmittoff, the Export trade 7th Ed. Pg 411

THE PROPRIETY OF THE ALTERNATIVE DISPUTE RESOLUTION MECHANISM IN NIGERIA