Man is a social animal that is in constant relationship with each other. This relationship is not without misunderstanding and disputes resulting from differences in goals, limited resources, greed, selfishness, etc. These have been identified as some of the frequent factors that put man into disputes and disagreement with others. It is a simple but general fact that as social beings, disputes will always arise among men just like in other animals. This has been the case from creation.
Being intelligent creature, man has always sought for means of amicable settlement that promotes peaceful co-existence. This arrangement is often times, done with the mindset of getting sustainable justice. Thus, dispute resolution is as old as disputes itself from time immemorial. ADR is only a modernization of the existing treats and lifestyle that have characterized human existence before the advent of litigation as modern mechanism of dispute resolution.
The term litigation actually refers to modern way of dispute resolution according to established laws and rules of court. This process of adjudication became preferred over customary adjudication as the system of modernization enhanced. We need to understand first and foremost that as humans, we are special animals that relates with others at different times and reasons. But in all, there are bound to be occasions where disputes are inevitable. Litigation gives rise to what can be referred to as a “win-lose system” or “split the difference”. This is a typical ‘winner-takes-it-all’ syndrome.
Over the years, ADR in Nigeria has shown that the process of Litigation has become more expensive, time consuming and unduly cumbersome because of the considerable rise in the number of cases in our court and the attendant congestion of the regular court. There are cases that are sensitive and require confidentiality. Such cases best requires settlement in private compared to the to the regular public court system. The complexity of court litigation also results to increase in costs which parties naturally do not appreciate. Litigation process was and is still unduly expensive in the long run, especially prolonged as a result of judicial technicalities embedded in litigation in Nigeria.Also, unnecessary and frequent delays in judicial proceedings have great adverse effects on the administration of justice in Nigeria.
Among the several ways of resolving human disputes, ADR is considered an effective means of settling disputes, thus, this jurisprudential viewpoint. ADR simply means Alternative Dispute Resolution, or Appropriate Dispute Resolution. It can be defined as another form of mechanism for dispute resolution or avenue for settlement of difference between parties. It simply means any other process of dispute resolution other than litigation processes.
ADR is also generally used to describe different methods and procedures used in handling dispute either as alternatives to the traditional dispute resolution mechanism of the court system or in some cases, ancillary to such mechanisms. Alternative Dispute Resolution comprises various approaches for resolving disputes in a non-confrontational way, ranging from negotiation between the two parties, a multi-party negotiation, through mediation and the rest. ADR can also refer to all processes employed, from facilitated settlement negotiations in which parties to dispute are encouraged to negotiate directly with each other before some other legal process like arbitration systems or mini-trials that look and feel very much like a courtroom process take place.
It is a trite position that dispute is the result of differences in goals, scarce resources, greed, selfishness, etc. Dispute is inherent in man who is heterogenic in nature.
The target of ADR is dispute prevention, dispute resolution and dispute management. Thus, access to justice is the yardstick for systematic approach to dispute resolution.
The origin of ADR has been considered by many scholars but all points to the fact that it pre-dates the modern man. It is thus, as old as human existence and as such emanated as soon as humans began to express differences that result to disputes or conflicts. The result is that ADR was employed in different forms in the resolution of these disputes. More specifically, modern forms of ADR has been traced to an American litigation lawyer called Eric Green. It was first used by Green in 1978 in a commercial dispute. He had sort for an appropriate means of resolving a commercial dispute and employed ADR. The case in litigation had lasted two and half years still waiting for hearing date. On the agreement of the parties, he was able to settle the dispute within two days and saved the parties millions of dollars. The above challenge of litigation among others has robbed humans true justice uncountable times and imposed great hardship on us all. Generally, different societies have their differences histories of ADR development. In Nigeria, ADR dates back to the agrarian days when our fore fathers settled their disputes through customary arbitration under the customary law. They referred their cases to elders or selected persons appointed for that purpose.
Our ancient practice of ADR was lauded in the case of Okpuruwu v Okpokam (1998) 4 NWLR (PT. 90) 554 @ 586 by the Supreme Court that stated that: “In the precolonial times and before the advent of the regular court, our people (Nigeria) certainly had a simple and inexpensive way of adjudicating over dispute between them. They referred them to elders or body set up for that purpose. The practice has over the years survived and become strongly embedded in
the system that they survive today as custom.”
The above position of the court suffices to say that ADR is not alien to Nigeria, but remains part of the Nigerian legal system. As an effective dispute resolution mechanism, ADR has binding decision which the parties cannot resile from at will. This position has received the backing of the Supreme Court in Okparaji v Ohanu (1999)9 NWLR (pt. 618)290 @ 304 to the effect that “where parties have voluntarily submitted to an arbitration they willingly agreed to expressly or by implications, they are to be bound by the outcome and none of the parties can resile from the decision reached.”
The major forms of ADR mechanism includes:
This deals with the discussion or dialogue between parties to a dispute with the aim of arriving at an amicable resolution. This can be done by the parties themselves or by appointment of a neutral third party who guides them through the stages of negotiations such as the pre-negotiation, bargaining and implementation stages. It does not usually require rules of procedures.
This is an ADR mechanism where a neutral third party is appointed compulsorily to assist the parties reach a compromise. This is especially required when negotiations has failed because parties are tied to their benefits and interests and not willing to have a compromise. However, the mediator or panel of mediators does not contribute to the resolution bid. They employ necessary facilities in settlement of the disputes alongside the agreement of the parties. A mediator guides parties through open discussion and dialogue, facilitate communication between parties, creates enabling environment to achieve settlement.
This is an ADR mechanism where parties first of all, agree on amicable settlement through mediation and request the services of third party to assist them in reaching amicable settlement and as well, agree to abide by the decision to be reached. The conciliator appointed here may be a government representative aimed at assisting the parties especially when it involves large members of the society or community. He may offer personal opinion but must operate within the provision of the existing law.
This is an ADR process where disputes are referred to an independent arbitrator or arbitrators who are appointed for that purpose. This is almost similar to litigation processes as the arbitrator delivers arbitration award as judgment with binding effect on the parties.
5. MINI- TRIAL
This is a process whereby information is exchanged before a panel comprising of representatives of the warring parties who are authorized to reach an agreement. Usually there will be an impartial third party who with the rest of the panel will hear both sides of the disputes. The third party also conduct a question and answer sessions with all the participants, after which the panel will seek to negotiate a settlement.
6. MEDIATION – ARBITRATION (Med-Arb)
This is a hybrid dispute resolution process involving both mediation and arbitration. In Med-Arb, parties try to resolve their differences through mediation, and where mediation fails to resolve some or all the areas of the dispute, the remaining issues are automatically submitted to binding arbitration. The process uses a neutral party who is skilled in both procedures. The philosophy behind ADR practice over the years is the reason ADR is gaining interest daily. So many reasons has been advanced for ADR to remain, however it is very obvious that one of the major reason why ADR is gradually becoming a more appropriate approach to dispute resolution is because of the delay suffered by litigants in the normal court system.
ADR creates the avenue and platform for amicable resolution of already existing or intending conflicts or disputes in such a way that is quick, less cost and at the same time, does not infringe on the rights and privacy of the parties. This is hinged on the idea of seeking either Qualitative justice or Quantitative justice. In the attempt to address this, it is pertinent to understand that a glance on litigation reviews a whole lots of qualitative justice as it is aimed at delivering judgement to bind the parties who are being subjected to formal rigid rules devoid of the best interest of parties. While the case is decided according to law, the psychological disputes remains unattended, thus dispute gives rise to dispute.
It is therefore my view on the concept of ADR to submit that the modern days doesn’t have to cope with the rigid litigation method alone but also employ ADR to meet every form of dispute that may arise as it’s best for a healthy and sustainable development of our society.
ABOUT THE AUTHOR
Cypril Ifeanyichukwu Udu, Esq. graduated from Ebonyi State University, Abakiliki. He is An Associate member of the Institution of Chattered Mediators and Conciliators. He is an avid legal scholar and researcher.
For knowledge and Justice