BEING A PAPER DELIVERED AT THE PUBLIC PRESENTATION OF THE DISPUTE
RESOLUTION CENTRE, ABUJA CHAMBER OF COMMERCE AND INDUSTRY, ON
MONDAY THE 4TH DAY OF SEPTEMBER, 2017.
BY CHIEF BAYO OJO SAN, CON, CHARTERED ARBITRATOR.
INTRODUCTION
Let me start by expressing my appreciation the organizers of this event for the opportunity to
speak on this seemingly simple but profound topic “The Importance of ADR in Resolving
Disputes”. You will agree with me that one of the main drawbacks of any legal system is the
lack of an effective delivery of legal remedies to the people in need. Chaos and conflicts have
become a part and parcel of our lives, therefore urgent attention needs to be given to how we
manage or handle such conflicts and chaotic situations. The reason for this urgency is obvious
because how we manage conflicts eventually define us.
Today, pending court cases outweigh the decided ones because of the daily increase in the
number of offences coupled with the time taken on the part of the judiciary to determine them.
It would therefore be an understatement that Alternative Dispute Resolution (ADR)
mechanisms play very prominent role to resolve disputes, assists the court save valuable time
and help parties secure an effective solution to their disputes.
The challenges with litigation are far more than it appears. The judicial system is struggling to
cope with the ever-increasing burden of civil litigation and parties in litigation are frustrated
due to the constant delays in the process of justice and the huge expenses involved. As if this is
not unfortunate enough, confidence in the judicial system is gradually waning as citizens now
look down on the process and also try to stay away from anything that is remotely connected to
it.
What is ADR?
The term “Alternative Dispute Resolution” or “ADR” is often used to describe a wide variety of
dispute resolution mechanisms that are short of, or alternative to, full-scale court processes. It
refers to everything from facilitated settlement negotiations in which disputants are encouraged
to negotiate directly with each other prior to some other legal process, to arbitration systems or
mini-trials that look and feel very much like a courtroom process.
ADR refers to a variety of streamlined resolution techniques designed to resolve issues in
controversy more efficiently when the normal negotiation process fail. It is an alternative to the
formal legal system. It is an alternative to Litigation.
It is the general name used for the different ways of solving disputes other than the court room
procedures or civil litigation and the idea behind it is to cut down on the number of cases going
through the civil court system.
ADR procedures consist of negotiation, conciliation, mediation, arbitration and other arrays of
hybrid procedures such as mediation and last offer arbitration (MEDOLA), mini-trial, med-arb
and neutral evaluation. These ADR techniques are extra judicial in character. They can be used
in almost all matters which are capable of being resolved, under law, by an agreement between
the parties.
ADR is not intended to replace litigation being the traditional means of resolving disputes. It
only offers alternative options to litigation. It may therefore not be apt for ADR to be invoked
in every dispute, even if appropriate, unless both parties to the dispute show genuine interest in
settlement.
WHY ADR DEVELOPED IN RECENT YEARS
There are many reasons why ADR developed in recent years.
Allow me borrow the words of Walter K. Olson to buttress my point thus:
“Older law makers and judges tended to recognize litigation as a wasteful
thing, in its direct expense and in the demands it placed on the time and
energy of people with better things to do. It was grossly invasive of privacy
and destructive of reputation. It was acrimonious, furthering resentments
between people who might otherwise find occasion to co-operate. It
tended to paralyze productive enterprise and the getting on of life in
general by keeping rights in a state of suspense. It corrupted its
participants by tempting them to harass each other and to twist, stretch,
and hide facts. It was a play ground for bullies, and an uneven battlefield
where the trusting, scrupulous, and plainspoken were no match for the
brassy, ruthless and glib. For all that, it was sometimes the least bad of
the extremities to which someone might be reduced; but society could at a
minimum discourage it where it was not absolutely necessary.”
The above quotation might be an unkind way of defining litigation but I do believe that it does
carry some truth.
In Pakistan, by way of further example, there have been instances where the significance of
ADR has been recognized. Mr. Justice Tassaduq Hussain Jilani, Judge, Supreme Court of
Pakistan stated thus:
“We (Pakistan) are a vibrant society in transition. There are strains of
societal divide; cultural, economic, political, sectarian and ethnic. This
divide feeds the downside of Adversarial Legalism. There is a need to
promote consolidation, concord and search for alternatives in every arena
of societal divide. This would require a mindset, a culture and institutional
support. ADR is an attempt in the judicial and quasi domains to promote
these values and these institutions. Not underestimating the need for more
resources for the administration of justice, I am of the considered view
that the problems of backlog and delayed justice cannot be tackled unless
there is an attitudinal change in the main actors of the judicial process i.e.
the Bench, the Bar and the litigant public. Case management and
Alternative Dispute Resolution primarily aim at bringing about this
attitudinal change. This process has to commence at the basic level i.e. at
the subordinate judiciary level. The subordinate courts are the back-bone
of the entire judicial hierarchy. It is here that the concept of rule of law
confronts the first trial; it is here that more than 95 % of cases are filed
and pending; it is here that the impressions and perceptions about the
judiciary take shape; it is here that people in litigation suffer for months,
years and decades and spend the best part of their lives waiting for that
elusive Justice which at times is delayed, at times denied, and at times is
bitter with expense it entails.”
With all the above, it is not difficult to understand why ADR has developed exponetially within
the last few decades.
GENERAL CHARACTERISTICS OF ADR PROCESSES.
Negotiated settlement, conciliation, mediation, arbitration, and other ADR methods share a few
common elements of distinction from the formal judicial structure. These elements permit them
to address development objectives in a manner different from judicial systems. They include:
- INFORMALITY
Fundamentally, ADR processes are less formal than judicial processes. In most cases, the rules
of procedure are flexible, without formal pleadings, extensive written documentation, or rules
of evidence. This informality is not only appealing but important for increasing access to
dispute resolution to the party who may be intimidated by or unable to participate in more
formal systems. This informality also helps to reduce the delay and cost of dispute resolution.
Most systems now operate without formal representation. - APPLICATION OF EQUITY
An equally important character of ADR programs are its instruments for the application of
equity rather than the rule of law. Each case is either decided by a third party or negotiated
between the disputants themselves based on principles and terms that seem equitable rather
than on uniformly applied legal standards. ADR systems cannot be expected to establish legal
precedent or implement changes in legal and social norms. Rather, they tend to achieve
efficient settlements at the expense of consistent and uniform justice. - DIRECT PARTICIPATION AND COMMUNICATION BETWEEN
DISPUTANTS
ADR systems encourage direct participation by the disputants in the process and in designing
settlements, advocates a more direct dialogue and opportunity for reconciliation between
disputants and secures a potentially higher level of confidentiality since public records are not
typically kept, adopts a more flexible style in designing creative settlements, involves a less
power to subpoena information and employs a less direct power of enforcement.
THE IMPORTANCE OF ALTERNATIVE DISPUTE RESOLUTION (ADR).
The importance of Alternative Dispute Resolution (ADR) is limitless. However, some of them
are stated hereunder as follows: - ADR SAVES TIME: ADR helps save a lot of time. Resolution of disputes can be done in
weeks or months when compared to litigation which can take years. - ADR SAVES COST: ADR particularly the non-binding processes such as mediation also
saves cost such as fees for lawyers and experts, and work time lost. - PARTIES CONTROL THE PROCESS: In ADR, Parties are in control instead of their
lawyers or the court. Parties are given the opportunity to tell their side of the story. They
also have a say in determining the process till the final decision is arrived at. - ADR OFFERS A MORE STREAMLINED FOCUS: The focus is more on the issues
that are important to the people in dispute in ADR rather than their legal rights and
obligations as obtained in court. - FLEXIBILITY: ADR helps the people involved come up with flexible and creative
options by exploring what each of them wants to achieve and why. ADR processes are
usually more flexible than the court process. Most practitioners will investigate your
complaint through letters and documents, without a formal hearing. In mediation for
example, Mediators usually bring both parties together for a face-to-face discussion and
then try to negotiate a deal through a series of phone calls. - ADR PRESERVES EXISTING RELATIONSHIP: ADR preserves relationships by
helping parties co-operate with each other in order to arrive at an amicable result thus
creating a win/win as against a win/lose situation that litigation provide. - STRESS FREE PROCEDURES: ADR procedures are stress free. It reduces stress from
court appearances, time and cost etc. - PRIVACY: ADR keeps private disputes private. Only people who are invited can attend
an ADR session unlike the court where the proceedings are usually conducted in public
such that everyone including the media can attend. - EXISTENCE OF MORE FLEXIBLE REMEDIES: ADR often lead to making more
flexible remedies when compared with the court. For example, parties can agree that a
tribunal should not enforce or order a change in the policy or practice of a business. - SELF SATISFACTION: ADR processes are usually more satisfying to the parties since
they both agreed to it in the first instance. Parties often report a high degree of
satisfaction with ADR processes. - ACCESS TO JUSTICE: ADR gives more people access to justice because people who
cannot afford court or legal fees can still access a dispute resolution mechanism. - SUBSTANTIALLY NON-ADVERSARIAL: Going to court risks making a bad
situation worse because the legal system is adversarial. It puts one side against the
other and in the end there is a winner and a loser. In mediation for example, parties talk
with each other in order to find a solution both can live with. This helps preserve an
ongoing relationship. Compared with litigation, ADR is more useful in disputes with
one’s neighbor, ex-partner, child’s school, or landlord. ADR does not mean keeping
silent when a party disagrees, or agreeing with his/her adversary when he/she really
don’t, it means hearing the other person’s point of view, and having them hear yours,
and agreeing what happens next. - GETTING THE DESIRED RESULT: There is a much wider range of outcomes with
ADR than with courts. Mediation/Conciliation may well be more appropriate than court
if what you want is an apology, an explanation, or a change in policy or practice by an
organization. - LONG LASTING SOLUTION: When it works, the use of ADR procedures can
produce a solution that satisfies both sides. ADR practitioners encourage people in
dispute to have creative discussions about a range of options. Rather than just aiming
for an acceptable compromise, parties try to end up with an agreement which reflects
the best possible outcome for all involved. Research on family mediation for example
indicates that agreements reached through mediation are more likely to work out in
practice, and to last longer, than those imposed by a court. This is not true of court
orders, which often require the winning party to take action, and pay extra costs, to
enforce them. - FULL INVESTIGATION: Under ADR processes, the third party has the power to
investigate problems in depth, and, like courts, can require information to be provided
on what is complained about. Unlike courts, these third parties are free to the user. In
addition, some ADR options provide a remedy where there are few other practical,
affordable options which could include issues such as neighbor disputes, low-level antisocial behavior etc. - A SINGLE PROCEDURE: Through ADR the parties can agree to resolve in a single
procedure a dispute involving intellectual property that is protected in a number of
different countries, thereby avoiding the expense and complexity of multi-jurisdictional
litigation, and the risk of inconsistent results. - PARTY AUTONOMY: Because of its private nature, ADR affords parties the
opportunity to exercise greater control over the way their dispute is resolved than would
be the case in court litigation. In contrast to court litigation, the parties themselves may
select the most appropriate decision-makers for their dispute. In addition, they may
choose the applicable law, place and language of the proceedings. Increased party
autonomy can also result in a faster process, as parties are free to devise the most
efficient procedures for their dispute. This can result in material cost savings. - NEUTRALITY: ADR can be neutral to the law, language and institutional culture of the
parties thereby avoiding any home court advantage that one of the parties may enjoy in
court-based litigation where familiarity with the applicable law and local processes can
offer significant strategic advantages. - CONFIDENTIALITY OF THE PROCESS: ADR proceedings are private.
Accordingly, the parties can agree to keep the proceedings and any results confidential.
This allows them to focus on the merits of the dispute without concern about its public
impact and may be of special importance where commercial reputations and trade
secr ets are involved. - FINALITY OF AWARDS: Unlike court decisions, which can generally be contested
through one or more rounds of litigation, arbitral awards are not normally subject to
appeal. - ENFORCEABILITY OF AWARDS: The United Nations Convention for the
Recognition and Enforcement of Foreign Arbitral Awards of 1958, known as the New
York Convention, generally provides for the recognition of arbitral awards on par with
domestic court judgments without review on the merits. This greatly facilitates the
enforcement of awards across borders.
BACKGROUND CONDITIONS NEEDED FOR ADR TO THRIVE
ADR programs, like any other development programs, are more likely to achieve their
objectives when they operate within a hospitable context. The particular background conditions
that are especially relevant to ADR programs include: - Adequate political support.
- Supportive institutional and cultural norms.
- Adequate human resources.
- Adequate financial resources, and
- Reducing the parity in the power of disputants.
Allow me emphasize that though these conditions are almost too obvious to state, the particular
way they influence ADR programs is my area of interest. While no one of the conditions is
alone sufficient to create a context in which ADR will succeed, the absence of any one of these
contextual elements could also prove fatal to an ADR program. These conditions are briefly
explained below.
A. ADEQUATE POLITICAL SUPPORT
The level and source of political support for dispute resolution programs is an important factor
in determining the potential success of, and appropriate design for an ADR system.
Different kinds of ADR programs require support from different constituencies. Their support
is almost always critical for success. Such support should be capable of ensuring the passage of
an adequate statutory basis for the system. It must protect the system from attacks by other
programs that may feel threatened and ensure adequate financial resources.
Such support should also be “popular” in the sense that the source of that support should hold
the confidence of the people. If the program is fostered by an agency or government already
discredited by corruption or ineffectiveness, the system will not gain popular acceptance.
Ideally, a high level official such as a commissioner, minister or agency head should lead the
effort with a supporting coalition including representatives of the court system, administrators,
judges and lawyers, representatives/advocates of potential ADR user groups, and foreign
donors.
The source, level, and strength of political support must be sufficient enough to neutralize
opponents of ADR who have the political power to block it. In addition to institutional
opposition stemming from bureaucratic ego and issues of control, the more powerful sources of
opposition are usually economic. Judges, lawyers, and interest groups that benefit from current
institutional biases may all be sources of strong opposition to ADR programs.
At a minimum, political support may be necessary to pass legislation authorizing ADR,
especially binding arbitration systems. In Bolivia, for example, the Chamber of Commerce
arbitration program could not establish itself with users until legislation authorized court
enforcement of arbitral agreements. Mediation and conciliation programs can operate
reasonably well on an independent basis since settlements are voluntary agreements between
individuals, but these ADR systems may be strengthened by legal mechanisms to enforce these
agreements.
B. SUPPORTIVE INSTITUTIONAL AND CULTURAL NORMS
For Institutional and Cultural Norms Supportive of ADR programs to succeed, the cultural
norms of the community should support the concept of informal dispute settlement. Even in
countries where the judicial system is discredited and where reforms are unlikely in the short
term, ADR programs can provide a reasonable degree of justice if a tradition of informal
dispute resolution exists.
The absence of cultural norms which support informal third party dispute resolution should not
automatically eliminate consideration of ADR programs. If the program design is able to
incorporate an effective way of building those norms in the long-run and operating despite their
absence in the short-run, then it may be worth investing in ADR.
C. SUFFICIENT NUMBERS OF PERSONNEL
It is important that the pool of skilled ADR staff be large enough so that the system does not
become overburdened and to avoid personnel frustration and burn-out.
In South Africa, the large pool of mediators and arbitrators trained by IMSSA was a significant
asset since it meant that the system gained a reputation for immediate response. Conversely, the
enormous increase in the mediation caseload of the Commission for Conciliation, Mediation,
and Arbitration (CCMA) following changes in the South African legal system threatened to
overburden the mediators and erode confidence in the system.
In Sri Lanka, the most pressing concern facing the Mediation Board system is the excessive
level of work for the volunteer mediators and trainers. Beyond such basic issues as honesty,
training, literacy, and numbers, the program design will affect significantly the adequacy of
human resources.
D. FINANCIAL RESOURCES:
ADR programs are inexpensive for the state as well as the disputants. Many programs operate
with volunteer mediators and few have burdensome requirements for documentation or
administration.
Nevertheless, in some developing countries, governments have not allocated enough financial
resources to pay for program administration, and/or have not trained enough volunteer ADR
Practitioners to make ADR a reasonably small time commitment for volunteers.
The Mediation Boards in Sri Lanka for example, represent one of the most successful ADR
programs among developing countries particularly with regard to the development objectives
of USAID. The system is in jeopardy, however, because of the low level of financial support
and the increasing burdens on the volunteer mediators. Not only are the mediators unpaid, they
must often cover their own expenses. The mediators have no offices or staff and often need to
use their homes for mediations. They document their own work and pay for their own office
supplies. Although the system has been successful at resolving increasing numbers of cases, the
increasing burdens on the mediators are leading to a concern that mediators may quit and that
new mediators may be difficult to find.
Where the government is unwilling or unable to give sufficient resources, it can provide the
framework for the programs to become self-sustaining. In Ukraine, for example, the
sustainability of the UMG would be enhanced greatly if they could charge a fee for service,
both for mediation and for training to wealthier audiences.
E. REDUCING THE PARITY IN THE POWER OF DISPUTANTS:
ADR systems are unlikely to overcome wide disparity in the power of disputants or to redress
discrimination unless they can be specifically designed to do so. In most cases, informal
processes are less able than formal judicial systems to produce fair outcomes in cases of wide
power disparity.
Powerful parties retain the ability to intimidate weaker parties in conciliation or mediation and
coerce them into accepting unfair settlements. In addition, since participation of the disputants
in most ADR programs is voluntary, stronger parties are unlikely to participate if they feel they
can obtain better results by relying on their power and remaining outside the system.
For powerful disputants in these situations, bribing a government official or sending a thug
may be the most certain and effective way to resolve the dispute on favorable terms.
Nonetheless, there are many civil disputes that could be resolved through ADR even in
contexts of gross political inequality.< br>THE LIMITATIONS OF ADR
It is also important to emphasize that though ADR programs play very important role in many
development efforts, they could be ineffective and perhaps counterproductive in serving some
other goals particularly goals related to rule of law initiatives. Some of the known limitations
of ADR are discussed hereunder.
A. ADR programs do not set precedent, refine legal norms, or establish broad
community or national standards, nor do they promote a consistent application of
legal rules.
It is worth mentioning that ADR programs are tools of equity rather than tools of law. They
seek to resolve individual disputes on a case-by-case basis, and may resolve similar cases in
different ways if the surrounding conditions suggest that different results are fair or reasonable
according to local norms.
Furthermore, ADR results are private and rarely published. As long as some other judicial
mechanism exists to define, codify, and protect reasonable standards of justice, ADR programs
can function well to resolve relatively minor, routine, and local disputes for which equity is a
large measure of justice, and for which local and cultural norms may be more appropriate than
national legal standards. These types of disputes may include family disputes, neighbor
disputes, and small claims, among others. In disputes for which no clear legal or normative
standard has been established, ADR may not be able to overcome power imbalances or
fundamental disagreements over norms among disputants. In situations where there is an
established legal process for dispute resolution, ADR may not be the best possible alternative
to violence.
B. ADR programs cannot correct systemic injustice, discrimination, or violations
of human rights.
ADR systems often reflect the accepted norms of society. These norms may include
discrimination against certain groups and populations. When this is true, ADR systems may
hinder efforts to change the discriminatory norms and establish new standards of group or
individual rights.
C. ADR programs do not work well in the context of extreme power imbalance
between parties.
These power imbalances are often the result of discriminatory norms in the society and may be
reflected in ADR program results. Even when the imbalance is not a reflection of
discriminatory social norms, most ADR systems do not include legal or procedural protections
for weaker parties. A more powerful or wealthy party may press the weaker into accepting an
unfair result such that the settlement appears consensual but which in reality, resulted from
coercion. For the same reason, ADR programs may not work well when one party is the
government or an employer of labor.
When the program design has been able to enhance the power or status of the weaker party,
ADR has been effective in conditions of discrimination or power imbalance.
D. ADR settlements do not have any educational, punitive, or deterrent effect on
the population.
Since the results of ADR programs are not public, ADR programs are not appropriate for cases
which ought to result in some form of public sanction or punishment. This is particularly true
for cases involving violence such as in many cases of domestic violence. Societal and
individual interests may be better served by court-sanctioned punishment such as
imprisonment.
E. It is inappropriate to use ADR to resolve multi-party cases in which some of the
parties or stakeholders do not participate.
The results of most ADR programs are not subject to standards of fairness other than the
acceptance of all the participants. When this happens, the absent stakeholders often bear an
unfair burden when the participants shift responsibility and cost to them. ADR is more able
than courts to include all interested stakeholders in disputes involving issues that affect many
groups such as environmental disputes. When all interested parties cannot be brought into the
process, however, ADR may not be appropriate for multi-stakeholder public or private
disputes.
F. ADR may undermine other judicial reform efforts.
There is a concern that support for ADR may siphon money from needed court reforms, draw
management and political attention from court reform efforts, or treat the symptoms rather than
the underlying causes of problems. While these concerns are valid, they will rarely materialize
if ADR programs are not designed to substitute for legal reform. In most cases, ADR programs
will be far less expensive to start and operate than broad-scale judicial reform efforts.
In sum, ADR programs do not necessarily draw attention away from problems that can only be
addressed through formal justice processes, as long as both development officers and
government officials keep in mind the limitations of ADR programs.
OTHER LIMITATIONS:
A. ADR is not applicable to every dispute. For example, if the dispute involves a matter of
public interest, it may be more appropriate to have a court judgment to set a precedent.
B. Where a binding agreement is made (for example through negotiations or use of ADR),
parties sometimes refuse to give up the right and still proceed to court on the same
matter. Similarly, an award made at arbitration though generally accepted as binding
and which cannot be appealed except in limited circumstances, if one of the parties
refuses to accept the arbitrator’s decision, it usually calls for court intervention.
C. Some agreements made at ADR may not be as easy to enforce as a court or tribunal order.
In some cases this can be addressed by having the terms of an agreement made into
orders by consent by a court or tribunal.
D. If ADR is not successful and you have to go to court in the end. Trying ADR first might
therefore add to legal costs.
ESSENCE OF ADR
The vision behind ADR is to counter the following situations:
ARREARS OF PENDING CASES
The load of pending cases is way too heavy for the present justice delivery system to handle.
This makes the justice system sluggish and technically dead. Overpopulation and modern
complications of human life makes the judicial system prone to collapse in future if there are
no alternative and effective means to be adopted. This is why ADR stepped in to efficiently and
harmoniously resolve disputes.
INCESSANT ADJOURNMENTS
The practice of seeking adjournments is prevalent specifically in Nigeria. It is a true fact that
unwarranted adjournment makes the life of litigation long.
SLUGGISH GOVERNMENT MACHINERY
It is to be noted that the ‘State’ is the major litigant because in most of the litigations the State
is an essential party. It has been seen that the Government machinery specifically the Judiciary
is not well equipped. Lack of required infrastructure is further aggravating the course of
litigation. On account of overpopulation and a tremendous increase in commercial activities, it
is quite natural that the numbers of litigations also increase resulting in a massive backlog of
cases.
CONCENTRATION OF LITIGATION
The concentration of cases on a particular advocate badly affects his/her functioning and he/she
finds himself/herself in such a demanding position that he/she is expected to make an effective
presentation of the case. To avoid such problems, it is most desirable to pursue alternative
resolution in the form of ADR.
CONCLUSION
The system of alternative dispute resolution plays a vital role in dealing with disputes among
two parties as well as its effective resolution. The impact of such mechanisms is that people get
a speedy redresser opportunity and also a friendly atmosphere apart from the rigid rules and
regulations of the courts.
The current status gives us an idea that there is a drastic increase even in this field of law as
people have started understanding this pure concept as well as its effectiveness in the
enforceability of law through a different perspective so that th e term ‘democracy’ gains much
more importance in the life of the people as well as in the society.
Alternative Dispute Resolution (ADR) has come a long way. ADR centres all over the country,
Africa, and the world at large have opened up for fast and effective resolution of disputes with
lots of success stories in the last decade. It has also contributed significantly to bringing down
the pendency in courts. A variety of cases have been settled through ADR.
Thus, we can undoubtedly say that ADR as a dispute resolution process has come a long way
and is seeing more and more success stories day by day. It is a boom to the Judicial system. It is
expected that in the near future ADR systems will play a big role in fixing the justice delivery
system and make it more efficient by solving the arrears of pending cases which the judiciary is
overburdened with at present.
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By Mohammed Farouk
