By Emeka Obegolu SAN
(Being a paper delivered at the 2022 Pan African Lawyers Union Conference.)
Alternative Dispute Resolution (“ADR”) refers to any method of resolving disputes without litigation. ADR provides a confidential and alternative method of tackling legal disputes which avoids going to court.
ADR has gained broad acceptance by the public and the legal profession in many countries of the world. This is because, ADR regroups all processes and techniques of conflict resolution that occur outside of any governmental authority. It provides a cheaper and faster means of resolving disputes unlike litigation.
The most famous ADR methods are: arbitration, mediation, conciliation, and negotiation. Arbitration is used when disputing parties agree to have someone else decide the outcome of their disputes. A neutral person called an arbitrator listens to arguments from both sides, considers evidence, and then issues a decision called an arbitral award. The arbitration process is particularly useful in disputes which require an understanding of technical knowledge and where privacy is important (eg. to avoid disclosure of commercially sensitive information) or if there is an international element (i.e. to avoid multiple legal jurisdictions). Often times, the arbitral award is binding on the parties and would only be set aside on grounds of misconduct or breach of fair hearing.
Mediation involves an independent trained mediator who facilitates communication between the two parties having the dispute, with the aim of achieving a settlement or resolution. The mediator will discuss the issues and try to help the parties reach an agreement, but will generally not offer their own opinions or assessment. Mediation is often recommended when there is a relationship that both parties want to preserve, such as between family members or business partners. At the end of the mediation process, terms of settlement is reached which can be enforced using the instrumentality of the courts.
Conciliation is generally used for employment situations rather than commercial disputes. The conciliator will discuss the issues and try to help the parties reach an agreement, often providing their own opinion after assessing the situation and the different arguments. Conciliation is closely related to mediation. However, the fundamental distinction between conciliation and mediation is that, eventually during the conciliation, the conciliator will be asked by the parties to give them a non-binding settlement proposal. A mediator, on the other hand, will as a rule and as an matter of standard, refrain from making such a proposition.
Negotiation is perhaps the simplest and most straightforward type of ADR. Negotiation is a process whereby the parties and their legal advisors seek to resolve the dispute by reaching an agreement either through written correspondence or a meeting between all concerned. No one else acts as a neutral third party to help them reach the agreement.
The nature of ADR has made the process a necessary means for resolving disputes in the 21st century. ADR is confidential, fair in process and outcome, timely, accessible, allows for self-determination, neutral in quality etc. Also, the ADR process can be used in resolving disputes varying from family and divorce disputes, housing disputes, neighborhood and environmental disputes, employment and business disputes (both nationally and internationally), community dispute, consumer issues and personal injury, disputes of international nature etc.
Despites these advantages and potentials that ADR offers, very many lawyer around the globe especially in Africa are still under equipped in knowledge and practice in ADR. This paper therefore discusses the roles of Bar Associations in promoting ADR practice amongst lawyers.
FUNDAMENTAL ROLE OF BAR ASSOCIATIONS
Bar associations, also called Legal Associations, are group of lawyers/attorneys, whether local, national, or international, that is organized primarily to deal with issues affecting the legal profession. In general, bar associations are concerned with furthering the best interests of lawyers. This may mean the advocacy of reforms in the legal system, the sponsoring of research projects, or the actual regulation of professional standards.
More particularly, Bar Associations are involved in promoting and protecting the principles of the Rule of Law and respect for Human Rights; promoting and advancing quality and functional Legal Education, Continuing Legal Education, Advocacy and Progressive Jurisprudence; maintenance of the highest standards of professional conduct, etiquette and discipline among lawyers; maintenance and defence of the integrity and independence of the Bar and the Judiciary; promoting networking opportunities among the members of the Association, International Organisations, as well as associations from other countries; promoting the welfare, security, economic, and professional advancement of Legal Practitioners in their various countries; promoting and supporting law reform initiatives; as well as promoting timely and affordable access to Justice.
The currents exigencies of the world calls for innovation on the part of Bar Association in their approach to fulfilling their roles. Innovations in technology, the Covid-19 pandemic, the increasing cost of assessing justice, the widespread insecurity, the increasing delay in assess to justice, the increasing number of legal practitioners without employment, the increasing demands of business relationships, etc. all call for innovation in the approach to delivering the fundamental roles of Bar Associations.
ADR is an essential aspect of this innovative approach because it offers a platform for Bar Associations to play their role effectively at the pace of our ever evolving current world. ADR practices allows for relevance of Bar Associations and their members in the current business environment and justice delivery terrain.
The nature of ADR makes it efficient and effective for Bar Associations to meet the fundamental roles of timely and affordable access to justice, facilitating ease of business, promoting the welfare and economic security of legal practitioners, promoting and supporting law reform initiatives, promoting and advancing quality and functional Legal Education, Continuing Legal Education, Advocacy and Progressive Jurisprudence etc.
Consequently, it is important, if not fundamental for Bar Associations to promote ADR amongst members and their community of practice. This they can do by taking the following steps:
1. Legal Practitioners Education in ADR: As part of their roles, Bar Associations are meant to promote and advance quality and functional Legal Education, Continuing Legal Education, Advocacy and Progressive Jurisprudence. Organising seminars, webinars and training courses for members in ADR would facilitate the fulfillment of this role. Making ADR courses part of the compulsory continuous legal education would allow for wide spread participation and engagement.
2. Community ADR Literacy programmes: To ensure cost effective and timely access to justice, Bar Associations must engage in community literacy programmes aimed at encouraging community participation in ADR. Also, organising free mediation, conciliation and negotiation services for communities can go a long way in effective dispensation of justice. In Nigeria, we have the Lagos Settlement Week organised by the Lagos Multi-door Courthouse. It is a week where disputants are offered free mediation services by the practitioners of the multi-door courthouse. The aim is to decongest the courts and to provide disputants with a timely and cost effective dispute resolution mechanism.
3. Institutional Partnership: Bar Associations are to work with other institutions for the dispensation of justice, including institutions of learning to create awareness and engagement in ADR. Partnership with the police and other practitioners in the criminal justice sector would be paramount in this regard. Also, organising seminars and training courses for law faculties in ADR at low cost would be essential to raising a crop of lawyers who are open to the practice of ADR early and as such can reap the benefits of ADR practice timeously.
4. Establishment of Multi-door Courthouses: To really drive the use of ADR in our judicial system, Bar Associations must become actively involved in the establishment and operation of multi-door courthouses. This way a structure is created for disputes that need not go to litigation to be referred to ADR. This would allow for ease and speed in access to justices, decongestion of court and it would also provide a training ground for young ADR practitioners to develop their skills and professionalism.
THE 21ST CENTURY LAWYER TOOL BOX
As with any period of significant change, the 21st century brings a shift to a new way of working in a more tech-focused legal industry which could pose a number of issues for those accustomed to more traditional methods of legal practice. Technology is becoming increasingly important, and being tech-savvy is now a huge advantage for legal practitioners who are looking to switch roles.
Businesses are increasingly looking for innovative new ways of ensuring they remain commercially competitive in a constantly evolving market, and the legal industry must advance with the pace and demands that this brings. Thus, the 21st century legal practitioner is to be multifaceted and is expected to possess the core skills and knowledge required to become a legal professional, with the addition of several further attributes to ensure they are a good fit in an ever evolving business environment.
Consequently, the 21st Century lawyer tool box or skill kit would be:
• A sound knowledge of the Law: It is often said, lawyers are not meant to always know the law, but they are meant to know where to find the law. Therefore, given the ever changing dynamics of law making in response to the changing business terrain, legal practitioners must have excellent research and communication skills that keep them abreast with everything happening in the ever evolving legal sector. This makes them equipped with legal knowledge at their fingertips in their dealings with clients.
• Information and Communication Technology: The break out of the Covid-19 pandemic brought about the emergence of massive digital lawyering. This involves being able to practice law by making optimal use of networked computer technology. A legal practitioner must be able to make use of all the innovative applications that have been developed to make business easy, readily assessable, faster and effective. This is also imperative to reaching effectively a wider client base that is necessary for a thriving law practice.
• Knowledge of the Innovations in Commerce and other Disciplines: Recent trends show increasing demands in the business sector for a more effective and faster way of resolving disputes that would not interfere with business progression. Thus a legal practitioner must be skilled in ADR which is an effective dispute resolution mechanism that meets international business demands. It offers ease, speed, confidentiality, neutrality, expertise as well as flexibility in resolving disputes which is a criteria for international business relations.
• Creative Problem Solving Skills: The exigencies of the 21st century presents a legal practitioner with a task of being creative in solving the different problems that clients bring to the table. Gone are the days where the only option that a legal practitioner must proffer as a solution is litigation. The time, cost and difficult demands of litigation often discourage many clients. ADR offers the legal practitioner with creative solutions to many problems a client can bring. The law of ADR is continually being developed to accommodate disputes of different natures both nationally and internationally. Hence, an essential requirement for legal practitioners in the 21st century is being skilled in ADR practice. This gives the legal practitioner an edge in today’s fast paced world.
ADR IN ELECTORAL TRANSITION
The political terrain in many African countries can be very volatile during pre-election, election and post-election times as we witness political actors fighting to maintain power, or take over power, or control the process of the transition of power. Hence, we witness election petitions and political related actions filled in court by political players at different levels seeking the courts intervention in their disputes.
These disputes rage from intra political party disputes to post election disputes. All channeled towards the court which can be time consuming and costly because of the timely nature of political disputes. Some have had to let go because the courts are overwhelmed and cannot handle their cases. Hence the need for ADR in election disputes.
In Nigeria for instance, the Lagos Multi-Door Courthouse (LMDC) in 2017 called on politicians to embrace ADR mechanism in settling election disputes. They recommended mediation to political parties in Lagos State as a mechanism for the resolution of pre and post-election disputes amongst party members.
Following this, there were more call from the Nigerian body in charge of conducting elections- Independent National Election Commission (INEC) in 2018 for political parties to take advantage of the ADR unit of the commission to settle pre and post-election disputes. INEC sought to partner at the time with Institute of Chartered Mediators and Conciliators (ICMC) ahead of the 2019 election to mitigate the effect of election disputes on the commission. These calls however did not yielded much fruit because of the voluntary nature of the process.
There have been other efforts towards mediating election disputes. Chiefly is the efforts of bodies like ECOWAS and West Africa Network for Peace Building (WANEP). In furtherance of this course, WANEP developed the Election Monitoring, Analysis, and Mitigation (E-MAM) programme to support regional and state’s efforts to mitigate electoral violence, which has implications for democratic consolidation in West Africa. E-MAM focuses on monitoring, analysing, and reporting electoral violence for early response and mitigation. The programme is currently implemented in all the15 ECOWAS member-states to support peaceful conduct of elections. Despite these efforts with the ADR approach, much is still left to be desired in resolving electoral disputes as we still have violent transitions and many election dispute litigations in many parts of Africa.
However, with the involvement of Bar Associations, the reaction of political actors to the ADR process is expected to change. More particularly, Bar Associations should work with Election Commissions or Bodies to adopt mandatory ADR as is practiced in Multi-door Courthouses to ensure that election disputes that do not require litigation are resolved quickly and amicably.
Regulations that facilitate the implementation of mandatory ADR should be promoted. This would help provide the frame work for screening of cases and for the speedy resolution of same. Bar Associations are to take up educating political parties and political actors on the benefits of using ADR for resolving election disputes. Also, Bar Associations are to promote Court Connected ADR by bridging the gap between Multi-door Courthouses and political actors.
ADR IN COMMERCIAL CASES
The mechanism for doing business is ever evolving and has changed tremendously in the last two years. However, what remains a constant demand in the commercial sector is the need to maintain an increasing level of profit making; establish long lasting business relationships; eliminate any distraction or stressful circumstance that would dent the image of the organisation; minimize unproductive cost expenditures; as well as spend limited time in dispute resolution and more time in productivity. It is this reason that ADR process is increasingly more attractive to players in the commercial space both nationally and internationally for the resolution of disputes.
Litigation is a process of dispute resolution that can interfere with business operations. It is time consuming, expensive, public, stressful, and it never ends on a good note. It is difficult to preserve business relationship with this nature of the litigation process.
ADR on the other hand is a mechanism of dispute resolution that offers the commercial actor with:
• A cost effective option: ADR allows for lesser cost of dispute resolution. It allows the business to achieve the best outcome in dispute resolution at a lesser cost. The cost of money, loosing time, and loosing clients, is eliminated.
• Reduced stress and flexibility: The nature of the ADR process makes it easy for commercial actors to avoid the stress and pressure that comes with dispute resolution. ADR allows for the disputants to dictate the time, place and pace for the resolution of their disputes. They even have the freedom to determine the umpire that would aid them in the resolution of their disputes.
• Disputants/Business oriented: ADR focuses on the interest of the parties involved. It is aimed at a win-win end result. Parties can come to the ADR process knowing that their interests would be well pursued.
• Preserving business Relationships: Business relationships are so essential for any business that is established to remain increasingly relevant for a long time. ADR helps preserve business relationships by bringing an atmosphere of dispute resolution that lead disputants to settle amicably and remain friends.
• Confidentiality: No commercial actor wants their dirty linens washed in public. They always strive to keep confidential their disputes as they are aimed at preserving a good name which remains a veritable marketing strategy. ADR offers this confidentiality as no other person can be involved in the process of dispute resolution other than persons authorized by the disputants.
• Saves time: Time they say is money. It is an unqualifiable resource ADR saves time as such it saves money and resource.
• Simplicity: ADR processes are less technical in nature. It is therefore easier for disputants to follow the proceedings and the progress in the dispute resolution.
In addition to the above, arbitration offers a unique benefit to commercial disputes. In the case of binding arbitration, there are limited opportunities for appeal. An arbitral award can only be set aside where the arbitrator misconducted himself, or there is breach of fair hearing, or the reliefs ordered are in excess of what was prayed by the disputants. Rarely on substantial grounds would an arbitral award be set aside, it is mostly on procedural grounds. This gives finality to the arbitration that is not often available with a trial decision, which is subject to appeals, new trials and further appeals. Arbitration brings an end to disputes and arbitral awards have the same effect as that of the judgement of courts. This is advantageous to businesses who are focused at quick resolution of disputes.
Mediation as well offers unique benefits to commercial disputes in addition to the ones listed above. Unlike other forms of dispute resolution, such as litigation, the final agreement on how to resolve the dispute is down to the parties involved, with the mediator remaining neutral throughout. Mediation offers a win-win outcome since the disputants determine the result of the process. In the case of court connected mediation, the resolution of the disputants is entered as the consent judgement of the court. Where it is private, there is little risk of non-compliance as disputants reached the conclusion by themselves and are committed to their decision. The settlement agreement is like a contract between them that they are bound by.
ADR IN COMMUNITY CRICIS
A community is a group of people who share things in common, care deeply about each other, and work closely together towards a common purpose about which they care. Given this context, even when disputes arise, the need to preserve existing relationship is paramount. This is why ADR is so essential a process for the resolution of disputes as it allows for disputants to air their views, heal at their own pace while still maintaining community relationship.
In Africa, ADR is not new in dispute resolution. Informal mediation and negotiation have existed with the African people as a mechanism for dispute resolution amongst communities and families. It is part of the culture of the African people to resolve disputes amicably because community relationship is important.
In recent times, different bodies have continued to lay emphasis on mediation as an essential dispute resolution mechanism for the resolution of disputes and peace building in Africa. There is the African Union (AU), The Africa Peace and Security Architecture (APSA), Panel of the Wise (POW), and chiefly the West Africa Network for Peace Building (WANEP). These bodies have assisted communities in Africa to resolve conflicts through mediation. As a result of their efforts, different communities now have peace building societies that help maintain peaceful relationships within the communities.
Worthy of applause is the role WANEP has continued to play in facilitating dialogue and mediation of community disputes. In this regard, the organisation has led several community-based dialogue and mediation efforts across the West African region. It has also been instrumental in creating structures that further facilitate peaceful
co-existence in post-conflict communities including the Bawku Inter-Ethnic Peace Committee in Ghana and Plateau State Inter-Community Peace Committee in Nigeria.
In Jos, Plateau State, in conjunction with other bodies like Institute of Peace and Conflict Research (IPCR), Abuja, and ECOWAS, WANEP convened a series of dialogues amongst the key ethnic groups culminating in the institutionalisation of an Inter-Ethnic Peace Committee that continues to manage differences and ethnic tensions in the Plateau state, Nigeria.
Also, in the Bawku Community of Ghana, WANEP in collaboration with UNDP-Ghana and Ibis West Africa, facilitated similar consultations towards the peaceful resolution of the disputes between the indigenous tribes of the community. This led to the establishment of the Bawku Inter-Ethnic Peace Committee in Ghana.
While there has been tremendous success in the mediations in these community, there is the challenge of re-occurrence and distrust by community members who seem to find new reasons to develop conflicts. Dialogue and Mediation is therefore a continuous process required for the maintenance of peaceful African communities.
Within West Africa, the Economic Community of West African States (ECOWAS) has been at the forefront of conflict prevention, resolution, and management. Notable instances include ECOWAS mediation efforts in Liberia, Sierra Leone, Cote d’Ivoire, and Guinea. Also, ECOWAS’s continued effort in mediating protracted political stalemate in Togo and Guinea Bissau is another instance of sub-regional contribution to peace and security.
Furthermore, the mediation intervention of ECOWAS in the post-election crisis in The Gambia was critical in averting possible violence. In 2017, led by the outgoing Liberian president, Ellen Johnson Sirleaf, ECOWAS played an active role in averting the political crisis in the Gambia in a post-election dispute involving longtime ruler Yahya Jammeh which had put the country on edge.
With a looming security and humanitarian crisis, Sirleaf along with a number of African leaders moved in twice, meeting with Jammeh in Banjul before ECOWAS met in Abuja to make firm pronouncements on respecting the will of the Gambian people. Also, the main mediator – President Muhammadu Buhari of Nigeria also hosted talks with Senegal’s Macky Sall, Sirleaf and Ghana’s president at the time, John Dramani Mahama, the co-mediator.
These efforts, coupled with ECOWAS posture relative to enforcing the poll’s decision and Jammeh’s concession, had enough grounds to assure Gambians of their unflinching support which quietened the atmosphere.
Another key decision at the time when tensions were rising was the temporal relocation of the then president-elect Adama Barrow to Senegal to ensure his safety. Then there was the decision to swear Barrow in at the Gambian embassy in Senegal at a time Jammeh had refused to exit.
ECOWAS at different times reiterated a firm commitment to apply necessary force to remove Jammeh and secured a United Nations go – ahead to militarily oust him. In the end, Jammeh left on different terms but ECOWAS’ position was lauded and is still being applauded.
Pan African Lawyers Union (PALU) ADR Committee has a mandate to establish and maintain systems of alternative dispute resolution, including provisions for both dispute mediation and dispute arbitration in Africa; facilitate the continuous legal education of members in ADR by initiating programmes and seminars that would serve as a platform for education, networking and exposure; and playing a chief role in promoting, building and maintaining peace within the African business, political, economic, and community environment.
This mandate extends to every member of PALU as the need to promote ADR for peaceful and speedy resolution of disputes cuts across every society in Africa and calls for more individuals to get involved.
Therefore, it is imperative for Bar Association represented here to join hands with the ADR Committee to revolutionize dispute resolution by promoting ADR practice across Africa. We have seen that ADR is not only essential to the 21st Century legal practice, it is part of our history and culture as Africans.
Consequently, to achieve the vibrant economy that comes with the ease of doing business, as well as promote the peace that allows for sustainable growth and development in business and other sectors, we must be active in promoting ADR, not just in PALU but across Africa.