By Ayotomiwa Oladapo
An ambitious business man who was more than determined to attain nothing below success in business, walked into my room on that cold Saturday morning and looked so sullen. He wasn’t his usual self and I instantly could sense it.
“The Law!” as he fondly calls me, “good morning” he greeted.
“Morning! Mr. Alfred, you don’t look too good sir, is anything the matter?”
“Yes, everything seems to be the matter”, he replied. I offered him a cup of water as he settled down to share his concerns.
I was just a law student staying outside campus while Mr. Alfred was a neighbor who doubles as a friend.
Although he had a lawyer as expected of a thriving business man, however, I was most times his first contact to discuss his legal issues with. It gave me goosebumps discussing law with him, as it made me feel as though I was the one legal practitioner the world awaits, which I strongly believe I am. Lol (Laugh out loud).
He was simply concerned about losing his relationships with some of his clients. Over the years, he had been engaged in several disputes with some of his clients who either failed to pay at all or who kept postponing the payment date egregiously or those who breached mutually reached agreements amidst a few instances. As expected, most ended up in court. He either won or lost, but either way, the relationship between himself and such clients got strained and this bothered him so much.
“Lawyer, can’t they settle our matter and command us to be friends and business partners still?
There are so many people out there who are really having the same concerns. Litigation is very good and this article contains no intention towards discrediting it. However, it is more or less a win-lose approach to dispute settlement, which most times fails to aid the parties sustain their initial relationships before the dispute arose.
The aim of this article is to try as much as possible to simplify the subject of Alternative dispute Resolution (ADR) and the processes involved for easy understanding even by the layman, as accurate comprehension of what ADR is, would aid parties who intend to settle disputes while yet sustaining their relationships know the way forward.
What is ADR?
ADR is the shortened form for Alternative Dispute Resolution. Many times, when people have disputes or conflicts, they throw punches, exchange words and a civil reader like yourself, might simply resort to litigation. Alternative Dispute Resolution involves the other legally recognized processes of resolving conflicts which arises between parties in most countries across the world including Nigeria.
Alternative Dispute Resolution is a procedure for settling a dispute by means other than litigation, such as Arbitration or Mediation. (Garner A, B, Black’s Law dictionary, 8th edition, West publishing co,2004, pg. 86).
There are certain ADR processes through which disputes may be resolved other than litigation. These processes include:
Arbitration is the official process of settling an argument or a disagreement by somebody who is not involved. Arbitration is a unique aspect of Alternative Dispute Resolution process. Unlike the other processes of ADR, it has some features of litigation. Although it’s informality and voluntariness still make it distinctive from litigation.
Disputes which can be settled using arbitration includes tort, matrimonial causes, breach of contract, etc. It is also of worthy of note that there are certain disputes that cannot be settled by arbitration. For instance, arbitration may not be employed in issues involving crime and disputes which involves interpretation of the constitution and statutes.
Arbitration can be instituted through means such as inserting arbitration clauses in contractual agreement, which would ouster the jurisdiction of the court as was held in Scott v. Avery. Also, by mutual agreement of the parties to resort to arbitration, by court order, etc.
Negotiation is a problem-solving process in which two or more people voluntarily discuss their differences and attempt to reach a joint decision on their own on their common concerns.
The distinctive feature which this ADR process has is that it involves only the parties to the dispute. Whenever a negotiation takes place, an agreement is always the result of the negotiation.
Legal practitioners are sometimes involved in the negotiation cases on behalf of their clients to serve as evaluator, negotiator, advise and also to help in the drafting of the agreement.
Negotiation can help to attain a win-win conclusion of disputes and also keep existing relationships.
Mediation involves a minimum of 3 persons, the parties and the mediator. The mediator Is the person jointly engaged by both parties to settle dispute. Such must be impartial and selfless in rendering services. A lawyer is a very good option for a mediator but many times retired judges are mediators as people trust their dispute settling skills which they must have gathered over their years of service.
Mediation Is a process in which an impartial third party called the mediator is invited to facilitate the resolution of a dispute by the self- determined agreement of the disputants. The mediator facilitates communication, promotes understanding, focuses the parties on their interest and uses creative problem-solving techniques to enable the parties to reach their own agreement.
A mediator cannot force the disputing parties to come to an agreement against their wish but an only aid such an agreement.
This is very similar to mediation and are often used interchangeably. Conciliation processes are more interventionist in outlook than mediation and is more common in negotiations involving government agencies.
V. Hybrid Processes
This process permits the disputing parties to begin the dispute settlement with one ADR process but may have recourse to other Alternative Dispute resolution processes in the course of dispute settlement. The major merit of this is that it permits the disputing parties to engage an ADR process to settle their dispute until they discover that a particular problem requires Alternative Dispute Resolution process. Thus, the parties are not limited to one ADR process in resolving their disputes. (Neg-Med., Arb-Neg., Med-Arb., Neg-Arb., etc.)
¹ (1856) LJ 811
² See Halpern, A., Negotiating skills, (London, Black Stone Press Ltd) 1992, p. 3
³ Noone M., Mediation (Essential Legal Skills), (London, Canvendish Publishing Ltd) 1996, p. 31
⁴ See Noone, op cit at p. 19