INTRODUCING 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”.
Alternative Dispute 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.
THE 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 ourselves in.
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 around you.
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.
ALTERNATIVE 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 outcome.
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 your practice?
Alternative Dispute 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)