ALTERNATIVE DISPUTE RESOLUTION (ADR)
I encountered Alternative
Dispute Resolution (ADR) formally for the first time as a Law undergraduate in
Afe Babalola University (ABUAD). It was, and is still, offered as an elective
course in 200 Level. The concept of alternative avenues to peace and justice
resonated with me, and I took particular interest in Mediation. It fascinated
me when I realized disputants can sit with a neutral third party and iron out
their differences in almost every area of life without the hassle of the
paperwork and stress involved in courts. Whenever I thought about the future, I
envisioned myself working in non-adversarial conflict avoidance/resolution, and
not clad in a Barrister’s wig and gown.
This hunger and passion to
learn more about Mediation and ADR drove me to conduct research and write my
Long Essay/Final Project on “Mediation as an Effective Tool for Dispute
Resolution in Nigeria: An Appraisal”.
Resolution, or as some call it “Appropriate Dispute Resolution” is an umbrella
term used to describe various dispute resolution mechanisms which may be used
as alternatives to Litigation (resolution of disputes in Courts of Law), or as
supplementary to Litigation.
There are numerous Alternative
Dispute Resolution (ADR) mechanisms, some of which require third party
intervention or not, and may be binding or non-binding on the disputants. Some
of these ADR mechanisms are Mediation, Arbitration, Negotiation, Conciliation,
Med-Arb, Arb-Med, Early Neutral Evaluation, and so on.
Mediation is a voluntary
(unless ordered by a Court of Law) and confidential dispute resolution
mechanism in which a neutral third party (the Mediator) assists parties in
arriving at a negotiated settlement.
Out of all the ADR Mechanisms,
Arbitration is probably the most similar to Litigation. It is a dispute
resolution mechanism in which a neutral third party or a panel of neutral third
parties listens to disputants’ submissions and acts akin to a Judge by
pronouncing a binding decision called an “Award”, which may be challenged and
set aside on certain grounds.
Negotiation is simply
communication between or among parties with the primary purpose of reaching an
agreement or middle ground which is likely beneficial to all parties involved.
Conciliation is often used
interchangeably with Mediation. However, in Conciliation, the Conciliator may
go a step further as to propose a settlement to the parties. This can only
serve as a suggestion as parties are not bound to accept the settlement.
This mechanism is a combination
of both Mediation and Arbitration. First of all, the parties submit to
Mediation and if they are unable to reach a settlement, they move on to
Arbitration. It is also possible that they reach agreement on some of the
issues and then use Arbitration on contending issues
This mechanism also combines
Arbitration and Mediation. In Arb-Med, the parties submit to Arbitration, but
when the decision is given, the content of the Award is kept secret from the
parties; maybe sealed in an envelope, then parties are encouraged to try
Mediation. If a settlement is reached in Mediation, the Award will be set
aside. But if the parties are unable to reach a settlement in Mediation, the
content of the Award will be administered on the parties.
BEAUTY OF MEDIATION
As a participant in the
Mediation Skills Accreditation and Certification Training of the Institute of
Chartered Mediators and Conciliators (ICMC), Nigeria, I was taught the
corner-stones of Mediation; Confidentiality, Ownership by the parties, Neutrality
and Impartiality, Respect and Empathy.
There is nothing more
important than the fact that Mediation is a confidential process and conducted
entirely without prejudice. This confidentiality is two-fold: the entire
process is private and all discussions, including the settlement, remain
private unless the parties decide otherwise. The “caucus”, which is the private
meeting between the Mediator (s) and each of the parties, requires another
level of confidentiality as no information discussed with the Mediator (s) in
caucus can be shared with the other party without express permission.
The efficacy of Mediation is
its provision of a safe space for disputants to vent emotions and air
grievances. They are allowed to get emotional (within reason) with the view to
unearthing the root cause of the problem. Flaring up in a Court of Law would
most likely result in a firm reprimand or depending on the magnitude, being
held in contempt of court. The Mediator’s role is to respect the parties’ views
and feelings, while steering the discussion in a productive direction by
encouraging parties to hear each other out.
Sometime in 2018, I was
working on a project with one of my bosses to produce a Mediation Training
video. We were trying to set up the conference room to be used for the joint
session, and he suggested placing three (3) chairs equidistant from each other,
i.e. for the Mediator and two (2) disputants. I disagreed and recommended that
the Mediator sit at the head of the table with parties on either side, because
the Mediator is “in charge” and should dictate what happens. I immediately
realized how wrong I was. The mediator
is indeed a ‘process manager’, but the entirety of the Mediation process
belongs to the parties; from participation to settlement. Mediation is
party-driven in the sense that the Mediator must always consider the needs and
interest of the parties and ensure that s/he does not impose any decision on
the parties. The Mediator’s sole purpose is to serve as a facilitator to
encourage dialogue and keep the parties at the table.
While engaging in one of the
many role play activities of ICMC’s Mediation Skills Accreditation and
Certification Training, I read through the assigned scenario and before I even
got to the end, the lawyer in me had already taken sides and concluded that
party A was in the wrong and owed party B a full refund and well-deserved
apology. I failed to remember that Mediation is interest-based, and not
rights-based like Litigation. This only goes to show that honing your Mediation
skills makes you a better person because, it gives you the unique opportunity
to adequately practice how not to judge people around us and situations we find
Serving ICMC Nigeria as her
Training & Communications Officer affords me the unique privilege of
sitting in on trainings organized by the Institute, which serve as continuing
professional education for me. They have challenged me to study different
personality types with the view to understanding why people behave the way they
do; myself included. This makes you a better parent, sibling, administrator and
colleague as it teaches you how to manage the strengths and weaknesses of those
Say I have a subordinate who has a short attention span and difficulty with understanding complex issues, constantly berating him will only serve to make him worse at his job and develop a strong dislike for me and, perhaps the entire organization. The best way to manage this would be for me to empathize with his weaknesses; not by feeling sorry for him and taking on all his workload, but by being more patient in instructing him and explaining tasks in simple terms. In so doing, I assist him in developing his competence; and in the same vein, ensure the smooth running of my organization.
Educating a new generation of practitioners
DISPUTE RESOLUTION AND LITIGATION
I am a Legal Practitioner and
I will continue to advocate for the use of non-adversarial means of resolving
disputes. Nevertheless, I must say that Litigation is not redundant, and will
never be. There are some matters that cannot be resolved using ADR and must go
to Court; for instance, criminal matters, human rights and
matters requiring constitutional interpretation. There are also some matters
that should go to Court in order to
establish precedent for others to follow.
As Engr. ’Segun Ogunyannwo,
the Registrar of ICMC Nigeria, has pointed out the signs and inscriptions above
the Courts of Law read “Court of Justice” and not “Court of Litigation”, which
implies that there are other avenues to justice that should be utilized. The Chief
Judge of Plateau State, Hon. Justice Yakubu Dakwak, speaking at the ICMC
Special Induction for Deutsche
Gesellschaft fur Internationale Zusammenarbeit (GIZ) in 2018, advocated for the
use of ADR as a road map to reducing case load in courts. He expressed hope
that ICMC inductees will join hands with the Judiciary and the Institute to
ensure Mediation takes paramount importance in the state. While chairing the
occasion, the Attorney General of Plateau State, Hon. Jonathan A. Mawiyau,
reiterated that ADR is the easiest way, and Mediation and Conciliation is the
way forward because more often than not parties leave satisfied with the
In June 2018, The Chief
Justice of Nigeria (CJN) Walter Onnoghen commissioned the Court of Appeal
Mediation Centre, as part of efforts to enhance justice delivery in the
country. In her remarks, the President of the Court of Appeal, Justice Zainab
Bulkachuwa, stated that parties before the court can now choose between
Litigation and Mediation. This signifies an opportunity by parties as well as
their counsel to enjoy the full flavour of Order
16 of the Court of Appeal Rules 2016.
We do it every day. Parents
arbitrate by listening to issues between their children and making a decision.
A mutual friend mediates by encouraging friends to see past their differences;
and even acts as a Conciliator by proposing a beneficial solution. We negotiate
in our offices, the markets, and even at home when children advocate for a
longer bedtime or increased allowance.
So, the question is “Why not
ADR?”. Why not incorporate it into your dispute resolution clauses in your
contracts? Why not advocate for its continued use? Why not undergo trainings
and obtain certification in dispute resolution which will only add quality to
Resolution; particularly Mediation, is a field that thrives on possibilities.
Conflict resolution and ensuring a peaceful world is not the responsibility of
lawyers alone; we all have a duty to advocate harmonious co-existence. It is
for this reason that ICMC trainings and subsequent membership is open to all
professionals from all disciplines and walks of life.
A budding career in Mediation and ADR has enriched my life immensely, and I will continue to create awareness and advocate its use in Nigeria.
By Chimdimma Onyedebelu
Training & Communications Officer, Institute of Chartered Mediators and Conciliators (ICMC)