ALTERNATIVE DISPUTE RESOLUTION IN NIGERIA: THE CONCEPT AND THE NEED
With the rate at which litigation span for a very long period of time before a judgment is made, people tend to avoid taking their matters to court.
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ALTERNATIVE DISPUTE RESOLUTION IN NIGERIA: THE CONCEPT AND THE NEED
INTRODUCTION
With the rate at which litigation span for a very long period of time before a judgment is made, people tend to avoid taking their matters to court. Asides the stretch, there also is the monetary aspect. The cost of paying a lawyer to be well represented in court over a long period of time is extravagant and may at the end of the day not yield the desired result. This is why ADR[1] has been introduced as a means of resolving disputes between parties.
THE CONCEPT OF ALTERNATIVE DISPUTE RESOLUTION.
The concept of ADR has been in existence since time immemorial. It was the mechanism rampantly used in resolving disputes between indigenes in a particular community.
The Alternative Dispute Resolution ("ADR") alludes to a technique for settling disputes without litigation. ADR refocuses all cycles and procedures of conflict resolution that happen beyond any governmental authority. The most well known ADR strategies are: mediation, arbitration, conciliation, negotiation, and transaction. Alternative Dispute Resolution is a method deployed in resolving disputes between parties without undergoing litigation in court. It is a system adopted by parties to resolve their disputes amicably without having to go through the stress accompanied with litigation.
Many people are still not familiar with the concept of ADR due to the fact that it is not very popular and pronounced by legal practitioners in Nigeria. However, the Rules of Professional Conduct for Lawyers provides that every lawyer in representing his client must first inform the client of the options of alternative dispute resolution mechanism before resorting to the litigation. This is to ensure that before litigation commences the party involved has the choice of deciding whether to resort to ADR or litigation having weighed the upsides and downsides of the two.
Alternative Dispute Resolution is regulated by the ARBITRATION AND CONCILIATION ACT (ACA), applicable to the whole federation. The Constitution of the Federal Republic of Nigeria 1999 (as amended) also gives constitutional backing to ADR in Section 19(d), which provides for the settlement of international disputes by Arbitration, Mediation, Conciliation, Negotiation, and Adjudication. The provision goes thus;
“The foreign policy objectives shall be – respect for international law and treaty obligation as well as the seeking of settlement of international disputes by negotiation, mediation, conciliation, arbitration and adjudication.”
MODES OF ALTERNATIVE DISPUTE RESOLUTION
The various modes/ strategies of effectuating ADR in Nigeria are; arbitration, mediation, negotiation and conciliation.
1. ARBITRATION: Arbitration is the most habitual strategy for ADR where parties to a dispute agree to submit to a third party called an arbitrator or an arbitral tribunal for the resolution of their dispute. The decision of the arbitrator or arbitral tribunal is called an award and it is binding on the parties and enforceable by the courts. Arbitration is controlled by the Arbitration and Conciliation Act (ACA) and further stewarded by the Lagos State Arbitration Law, 2009.
2. MEDIATION: Mediation is an alternative dispute process in which an unbiased and unprejudiced third party called the mediator is summoned by the disputing parties to oversee the resolution of the dispute in accordance with their understanding and agreement. The mediator is usually chosen by the two parties and the interaction is deliberate as the parties are not under any compulsion to acknowledge the inkling of the mediator.
3. NEGOTIATION: Negotiation is a procedure in which the parties and their lawyers solicit the resolution of dispute between parties by arriving at an understanding either through written communication or an assemblage between the concerned parties. However, any assertions made by either side trying to resolve the dispute cannot later be submitted to the court to be utilized against the other party in deciding the dispute.
4. CONCILIATION: process by which a third party (the conciliator) is selected by the disputants as a nonpartisan and fair individual to help them effectively engage in a dispute to accomplish a settlement by guiding negotiations towards a bonhomous end.
ADVANTAGES OF ALTERNATIVE DISPUTE RESOLUTION
It is flexible.
That is, it can be done at the convenience of the parties.
It is cost effective.
The process doesn’t cost much as in the case of litigation.
It is also time effective.
The processes, conclusion and granting the award can be done in less than a year. It does not span for too long like litigation.
The parties involved have more control over the process and the result.
It is a private process and confidential. No one else asides the parties involved together with their lawyers, the arbitrator(s) and the stenographer can attend the procession. It is unlike litigation that is very public.
DISADVANTAGES OF ALTERNATIVE DISPUTE RESOLUTION
It is limited in its application. ADR cannot be implemented in certain matters such as criminal matter. The Arbitration and Conciliation Act only applies to disputes that are commercial.
Awards made by arbitrators are final and cannot be appealed against. This goes against the doctrine of fair hearing.
The parties are at liberty to discontinue the proceeding at any point in time. They can call-off the process because they are in control of the process.
CONCLUSION.
The concept of ADR is alluring considering the many advantages attached but it also have its disadvantages too. However, it is very important to keep in mind that it cannot be utilized in all matters in Nigeria.
[1] Alternative Dispute Resolution will be abbreviated as ADR in the course of this article. [2] Olusola John Jegede, Winifred Idiaru, “Overview Of Alternative Dispute Resolution Process In Nigeria.” [3] Rule 15: 3d of the Rules of Professional Conduct for Lawyers.
NB: This article is not a legal advice, and under no circumstance should you take it as such. All information provided are for general purpose only. For information, please contact chamanlawfirm@gmail.com
WRITTEN BY CHAMAN LAW FIRM TEAM
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