A COMPARATIVE ANALYSIS OF THE PREVALENT ADR MECHANISMS IN NIGERIA.

Authored By :

Babatunde Adesoji Fasogbon

“When you’re at the edge of a cliff, sometimes progress is a step backward.”.
-Anonymous.

In the world of human interactions and commercial transactions, disputes generally arise as a result of disagreements between the parties involved. They are innate in every human being and must surely exist so long as people are entitled to their own opinions. In every modern society, the courts are an essential institution without which the society would end up in chaos. Their importance cannot be overemphasized. However, bringing it home, in Nigeria, court cases are most notable for one thing – the lag in the settlement of disputes. There are cases that have been going on for close to a decade! And some, for even longer. There are cases that have been there for so long their res (subject matter) has changed fundamentally. Litigation in the Nigerian Court system has become a long and very tedious affair, and in light of this, it has been suggested that mechanisms that provide smoother justice should be looked into.

ALTERNATIVE DISPUTE RESOLUTION (ADR) AND HOW IT WORKS

Simply put, ADR refers to a wide range of dispute resolution processes and techniques that parties can use to settle disputes, with the help of a third party. They are used for disagreeing parties who cannot come to an agreement short of litigation, which, in our court system, has become an expensive, time-consuming, and frustrating process that often yields undesired results. Nevertheless, a trial may be necessary to vindicate certain fundamental rights, but, in instances where trials are not absolutely necessary, ADR offers an efficient alternative. How then does ADR work?

Section 19 of the 1999 Constitution of the Federal Republic of Nigeria for the first time in the history of constitution-making in Nigeria provides for settlement of disputes by Arbitration, Conciliation, Mediation, and Negotiation;

ARBITRATION

Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court. In the case of arbitration, the arbitrator(s), after reviewing the dispute between the parties comes to a settlement and that decision taken by an arbitrator then becomes binding on both parties.

Arbitration in Nigeria is primarily governed by the Arbitration and Conciliation Act (ACA) a federal legislation enacted in 1988. It is largely based on the UNCITRAL Model Law on International Commercial Arbitration of 1985 with minor differences. Because arbitration is not on the exclusive legislative list, Lagos State passed its own Arbitration and Conciliation Law in 2009 in line with the updated UNCITRAL Model Law of 2006. Currently, there is a Bill before the National Assembly to amend the Arbitration and Conciliation Act to reflect the updated UNCITRAL Model Law.

It must be noted that while Arbitration is attractive, not every dispute is arbitrable. In consequence, by the purports of Section 57 of the ACA disputes arising out of criminal, tax, constitutional matters, and bankruptcy are not arbitrable in Nigeria, amongst other disputes.

Commercial contracts will commonly include provisions for how disputes relating to that contract are to be resolved, the arbitration agreement will generally be part of the document recording the terms of the commercial transaction. Parties can also enter into an arbitration agreement after a dispute has arisen and in so doing, agree to refer their dispute to a neutral tribunal to decide their rights and obligations.

Although arbitration, mediation, conciliation, and negotiation all are considered to be forms of ADR, arbitration differs from the others because an arbitral tribunal has the power to make decisions that bind the parties. In contrast, a mediator or conciliator, in the other mechanisms, can only recommend outcomes and the parties may choose whether or not to accept those recommendations.

Thus, one of the attractions of arbitration is the ease of enforceability. Courts tend to uphold arbitration agreements; arbitration agreements are enforced by a successful application for a stay of proceedings and a reference of the dispute to arbitration. Courts rarely refuse such an application where the applicant has shown that it is ready, able, and willing to arbitrate the dispute. Where a party to an arbitration applies to the court, the court could compel the attendance of any witness by subpoena.

MEDIATION

Mediation is an alternative dispute process in which a neutral and impartial third party called the mediator is invited by the disputing parties to facilitate the resolution of the dispute by the self-determined agreement of the disputants. The mediator facilitates communication, promotes understanding, focuses the parties on their interests, and uses creative problem-solving techniques to enable the parties to reach their own mutual settlement/agreement. The mediator is usually jointly procured by both parties and the process is voluntary as the parties are not under any obligation to accept the suggestions of the mediator. Unlike arbitration, mediation doesn’t involve decision-making by a neutral third party.

In mediation, the disputing parties work with a neutral third party, the mediator, to resolve their disputes. The mediator facilitates the resolution of the parties’ disputes by supervising the exchange of information and the bargaining process. The mediator helps the parties find common ground and deal with unrealistic expectations. He or she may also offer creative solutions and assist in drafting a final settlement. The role of the mediator is to interpret concerns, relay information between the parties, frame issues, and define the problems.

Mediation tends to take the form of private mediation or court-annexed mediation. Private mediation involves the parties seeking the assistance of an independent third party who offers his or her services on a commercial basis, e.g. the Lagos Court of Arbitration. Court-annexed mediation involves matters which have already been filed in Court, but with directives from Court that parties should settle the dispute through mediation and in such instance, directs parties to go to mediation, and whatever mediation settlement agreement is reached by parties is entered as the judgment of the Court.

For Court-annexed mediation, the Multi-Door Courthouses across the country are clear examples of this. There are also the Mediation Centres set up by the government, where disputing parties can request for mediators as well as conduct mediation proceedings. Such Centres also support the training of mediators. In Lagos, for instance, the Citizens’ Mediation Centre (CMC) provides a non-adversarial forum for the mediation and settlement of disputes between parties who voluntarily agree to mediation.

CONCILIATION

Conciliation is an autonomous form of conflicts settlement where the intervening third party is called a Conciliator. Within the conciliation procedure, the achievement of the parties` agreement is pursued with regard to a conflict extinguishment, but unlike the mediator, the conciliator does not analyze the conflict, but only tries to clarify to the parties the position of each of them in view of re-establishing trust between the parties, correcting their deficient perceptions and helping them reach a reasonable understanding of the reasons generating the conflict.

In recent times, the systematic use of conciliation in dispute resolution has assumed more importance because of its efficiency. In Nigeria, conciliation is recognized by the Arbitration and conciliation Act (CAP 19- LFN 1990). Under the Act, the word ‘conciliation’ is not defined. The Act merely provides that the parties to any agreement may seek amicable settlement of any dispute in relation to the agreement by conciliation. Part II of the Act i.e. Section 37 to 42 and 55 stipulate detailed provisions for conciliation. Section 37 provides that the parties to any agreement may seek amicable settlement of any dispute in relation to the agreement by conciliation under the provisions of the Act.

Where a party wishes to initiate conciliation, he sends to the other party a written request to conciliate. The request contains a brief statement setting out the subject of the dispute. If the request is not accepted, then there will be no conciliation. It must be noted that if the party initiating conciliation does not receive a reply within 30 days from the date on which he sends the invitation, or within such other period of time as specified in the invitation, he may elect to treat this as a rejection of the invitation to conciliate, and he informs the other party accordingly

The conciliator, when appointed, may request each party to submit a statement, setting out the general nature of the dispute and the points at issue. A copy is to be given to the other party. If necessary, the parties may be asked to submit further written statements, and other evidence. The conciliator then assists the parties in an independent and impartial manner, in their attempt to reach an amicable settlement. The conciliator is guided by the principles of objectivity, fairness, and justice.

A party may submit to the conciliator his own suggestions for the settlement of a dispute. Such suggestions may be submitted by him on his own initiative or on the conciliator’s request. The settlement agreement when authenticated by the Conciliator and signed by both parties then becomes final and binding.

NEGOTIATION

Negotiation is often the first option for those wishing to resolve a dispute. Simply because, in some cases, both parties can solve arguments by taking a ‘cards on the table’ approach and attempting to negotiate a compromise. If required, dispute resolution specialists can take instructions and negotiate on behalf of the parties. This form of ADR is often overlooked because of how obvious it is. There is no impartial third party in negotiation to assist the parties with their negotiation, so the parties must work together to reach an agreement.

Negotiation has been defined as any form of direct or indirect communication whereby parties who have opposing interests discuss the form of any joint action which they might take to manage and ultimately resolve the dispute between them. Negotiations may be used to resolve an already-existing problem or to lay the groundwork for a future relationship between two or more parties.

Negotiation has also been characterized as the “preeminent mode of dispute resolution, which is hardly surprising given its presence in virtually all aspects of everyday life, whether at the individual, institutional, national, or global levels. Each negotiation is unique, differing from one another in terms of subject matter, the number of participants, and the process used.

Given the presence of negotiation in daily life, it is not surprising to find that negotiation can also be applied within the context of other dispute resolution processes, such as mediation and litigation settlement conferences.

Generally, Arbitration is the most popular of the ADR mechanisms in Nigeria. In fact, several Arbitral bodies have been established in Nigeria, for instance, the Lagos Court of Arbitration, the Regional Centre for International Arbitration, etc. Multi-Door Courts for the facilitation of Mediation have also been established all across the country, for example, the Lagos State Multi-Door Courthouse, The Enugu State Multi-Door Courthouse (ESMDC), The Abuja Multi-Door Courthouse (AMDC), etc. Mediation also seems to be getting the rise in media with Legal reality shows about Mediation gaining popularity. For instance, the new Nigerian Legal Reality show named “Judging Matters” similar to the American reality show “Judge Judy” of the same ilk which deals with minor cases of real people getting justice from a small claims court. It is also worthy to note that Arbitration is inherently binding while the others only become binding when the agreements or terms of settlement are taken to a court to be enforced as consent judgments.