Written By: Adetomi Olanitori
“Dispute” or “Conflict” or “Crisis” or “Fight” as its called in normal parlance or whatever name or nomenclature we call it is inevitable.
It surfaces in different ways and manners in or between Families, Towns, Countries, Religious organizations and Political parties.
Whether it is intra person (inside an individual) or inter persons (external).
Dispute is a sign of Life, Competition and Development.
Once it is established that once there is “life” there is a high probability or possibility of “dispute”, then finding an effective way of resolving these dispute or crisis is fundamental otherwise the dispute might escalates and if not properly managed can lead to war or unimaginable circumstances.
Dispute could be as simple as between parent and child and or even between different fractions of a family unit or complex as communal crisis e.g inter country crisis for instance the most recent Russia and Ukraine Crisis.
This work is to introduce Alternative Dispute Resolution (ADR) as an alternative to the traditional court litigation and to sensitize us on how to effectively resolve conflict using amiable and friendly strategies.
In the Most recent Russia and Ukraine crisis; the British Prime Minister Boris Johnson advised and warned Russian President Vladimir Putin to work towards a “Peaceful resolution” of the crisis over Ukraine
“that aggravation was in no one’s interest,” and further warned “that any Russian invasion would be a “tragic miscalculation ”
this Statement was made February 2022 fast forward to April, 2022 it had turned to a full-fledged war.
The result of which has led to several hardship and loss of properties worth millions of Dollars, Loss of political and socio-economic relationships not just between Russia and Ukraine but with many other Countries and above all, exposing the region to adverse Climatic conditions due to dangerous emissions.
Its important in Dispute Resolution that we don’t fall into the pitfall of miscalculation, which could be tragic, ruining age long personal and business relationships, forfeiting the entire process and the essence of the resolution may not be achieved at the end.
In essence, the outcome of a Dispute Resolution to a very large extent is determined by the dispute Resolution tools or methods involved.
To many the first method of dispute or conflict resolution that comes to mind is Litigation;
This is the use of the Court system, applying laws, established principles and procedures to resolve disputes. This process is basically adversarial in nature and at the end of the long procedure judgment is given and a party is declared winner while the other party the loser.
It’s been said by many “I will take you to court”, “you will hear from my lawyer” but only to get frustrated and more confused after limited time and resources have been exhausted on litigation which in most cases the cases get thrown out of court due to
- procedural technicalities,
- Lack of fund to pay professional fees of lawyers or
- even lack of diligent prosecution.
- Its very disheartening that in some countries; for instance Nigeria, Court List are still decorated with cases that have outlived many generations.
The unfortunate fact is that the magnifying glass has been on litigation from time immemorial as such a lot of people are ignorant of the several array of alternatives or options in existence for their dispute to be resolved in a way that beneficial and economical to their cases.
Therefore ignorance as to Alternative Disputes Resolution has led to a gross miscalculation that has several times led to war and loss of trust between parties.
What is Alternative Dispute Resolution (ADR)?
Alternative Dispute Resolution (ADR) are the other methods or mechanisms that are used in resolving disputes without recourse to court or in some case with minimal reference to court.
The major Alternative Dispute Resolution methods different from civil litigation are
- Negotiation,
- Mediation,
- Conciliation,
- Arbitration
while other methods are
- Early Neutral Evaluation,
- Settlement Conferences,
- Fact finding,
- Med-Arb.,
- Mini trial, etc.
Alternative Dispute Resolution methods are more used and appreciated in developed countries like United state, Italy and United Kingdom
In the Criminal context, it’s pertinent to state that Alternative Dispute Resolution (ADR) are used in some jurisdiction; USA, Czech Republic, New Zealand, Canada, Philippines, to resolve criminal cases through Victim – Offender Mediation, Circle Sentencing, Plea Bargaining, Community Sentencing and lot more.
In United States through the Victim – Offender Mediation process severe violent crimes such as serious assault and Homicide have been successfully mediated.
Components of Alternative Dispute Resolution (ADR)
Negotiation
Negotiation is a flexible tool to resolve disputes irrespective of whether it’s a formal or informal setting. Its the most common form of dispute resolution. It has been used as a tool to settle disputes from time immemorial.
Negotiation is the process by which the parties involved in a dispute voluntarily seek a mutually acceptable agreement to resolve their common disputes . In this process, compromise or agreement is reached while avoiding unwarranted argument.
In cases where third party is involved, the third party takes on the role of a Facilitator to ensure that the parties are talking and bargaining by allowing the disputants themselves control the process and the solutions to their dispute.
The Facilitator then prepares the memorandum of Agreement containing all the points agreed, while the parties can then formalize the memorandum by inserting a condition that will be binding.
Negotiation thrives on the principles of fairness, seeking mutual benefit and maintaining a relationship which are the keys to a successful outcome.
Mediation
In mediation, an impartial person called a “Mediator” helps the parties involved in a dispute to try to reach a mutually acceptable resolution of the dispute.
The mediator does not decide the dispute but helps the parties communicate so they can try to settle the dispute themselves. Mediation, like negotiation also leaves the control of the outcome of the dispute with the parties.
Mediation may be particularly useful when parties have a relationship they want to preserve. So when family members, neighbors, or business partners have a dispute, mediation may be the Alternative Dispute Resolution process to use.
Mediation is also effective when emotions are getting in the way of resolution. An effective mediator can hear the parties out and help them communicate with each other in an effective and nondestructive manner.
A Mediator works together with the parties as a partner to assist them in finding the best solution to further their interests.
A mediator’s priority is to facilitate the parties’ own discussion and representation of their own interests, and guide them to their own suitable solution- a good common solution that is fair, durable, and workable.
In mediation, the parties play an active role in mediation by
- identifying interests,
- suggesting possible solutions, and
- making decisions concerning proposals made by other parties.
The parties come to a mediator by seeking help in finding their own best solution . Unlike a Judge in the court room, the Mediator does not have the constitutional power to impose solution neither can he force the parties to settle by all means.
A skillful mediator depending on the issues and parties involved in a case can deploy different approach
Mediation styles such as
1. “Facilitative style” by encouraging parties to generate their own settlement options or
2. “Evaluative Style” by proposing settlement options and endeavor to persuade parties to make concessions .
Conciliation
Conciliation is an Alternative Dispute Resolution that seems closely related to Mediation but there are categorical differences between them.
Conciliation is used almost preventively, as soon as a dispute or misunderstanding surfaces. A Conciliator pushes to stop a substantial conflict from developing .
The “Conciliator” is an impartial person that assists the parties by driving their negotiations and directing them towards a satisfactory agreement.
Conciliation is a much less adversarial proceeding; it seeks to identify a right that has been violated and searches to find the optimal solution for it.
Unlike in Mediation, A Conciliator is seen throughout the resolution process, he/she plays a more direct role in the dispute resolution, he may not follow a particularly structured process depending on the case and the parties involved, he may decides to meet with each of the parties separately to identify the cause of the issue after which he promotes settlement in a friendly and amicable manner.
In Conciliation, the conciliator, not the parties, often develops and proposes the terms of settlement. The parties will come to the conciliator seeking guidance and the parties will make decisions about proposals made by conciliators.
In this regard, the role of a Conciliator is distinct from the role of a mediator.
The mediator at all times maintains his or her neutrality and impartiality during dispute resolution.
Arbitration
Arbitration is a form of dispute resolution that is adversarial in nature like the court proceeding however it is substantially different from it in the sense that Arbitration gives disputing parties power to decide the personnel and procedure to determine their dispute.
It’s a non-court alternative method of resolving disputes, where an Arbitrator or panel of arbitrators is appointed by the parties to make a binding decision, from which there are very limited grounds of challenge.
In the Nigeria case of Guthrie (Nig) Ltd v. Kwara State Government & Ors
“Arbitration as a form of Alternative Dispute Resolution ADR denotes a procedure through which disputes are resolved by a person or persons acting in a judicial manner rather than a court of competent jurisdiction”.
Arbitration is an Alternative Dispute Resolution (ADR) process where parties agrees in writing prior to disputes or where disputes arises that any disputes be referred to one or more arbitrators.
The Arbitrators could be appointed by the parties or by an institution. Each party has the right to present their case before the arbitrators by providing evidence and argument in support of his case after which the Arbitrators will consider the evidence, review the arguments and determine the case on its merits.
The decision of the arbitrators are referred to as award, and once the award is given, it’s becomes final and binding on the parties and cannot be set aside except where gross misconduct is established.
Arbitration is one of the finest methods of Alternative Dispute Resolution (ADR) and it has capacity to settle both domestic and international commercial disputes when used effectively.
Arbitration; is emerging in Nigeria and it’s regulated by the Arbitration and Conciliation Act in Nigeria. Arbitration in Nigeria can be
- Institutional,
- Ad hoc
- Customary.
It is Institutional when its process is regulated by the rules and regulation of an institutions for instance Nigeria Institute of Chartered Arbitrators (NICArb), Lagos Court of Arbitration, Lagos Chamber of Commerce International Arbitration Centre.
To buttress the flexibility and party autonomy of Arbitration, Parties in Nigeria can decide to administer International Court of Arbitration (ICC) Rules to their arbitration in Nigeria.
An Ad hoc Arbitration is one that is not administered by an institution but is regulated by the mutual agreement of the parties. It offers an opportunity for flexibility.
While Customary Arbitration is essentially a native arrangement by selected elders of the community who are vast in the customary law of the people and takes decision which are mainly designed or aimed at bringing some amicable settlement, stability and social equilibrium to the people and their immediate society or environment.
One of the cardinal points of arbitration is what is known as “Party Autonomy” which allows the parties freedom to agree on how their disputes are resolved unlike the regular court process, is generally regarded as a private conduct by parties who chose to opt out of the regular adjudicatory mechanism of the regular courts to resolve their disputes privately for reasons of costs, privacy, speed, convenience, etc.
In Conclusion
Alternative Dispute Resolution is an exception to the traditional Court system and it is a powerful weapon when employed effectively to resolve dispute whether in Civil or Criminal cases. Alternative Dispute Resolution (ADR) is flexible, fast, and economical, solidifies and maintains relationship unlike the Civil and Criminal Litigation that considers all cases as war to be won at all cost.
Alternative Dispute Resolution (ADR) is fast becoming the new normal and we all must join the train.
I believe justice has been done to the topic; Resolution or War the choice is determined by how much you know about dispute resolution.
Thank you for reading.
This article is provided by PT WRITERS HUB for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact the writer on adetomiolanitori@gmail.com or contact info@ptwtritershub.com
