Chapter Five

Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

CHAPTER FIVE CONTEMPORARY TRENDS IN ADR WORLDWIDE

Alternative Dispute Resolution in these contemporary times is not only accepted but is actually being advanced in many jurisdictions around the world. Daily, new approaches are being taken and methods developed to bring justice to the people through creative exploitation of ADR. A brief study of these systems is guaranteed to increase our understanding of the far reaching implications of developing a system of justice that does not rest on the traditional court system of litigation. Also, a broad knowledge of the scope of ADR and its applicability in different societal settings and its effectiveness in reaching the less-privileged with justice will help the development of ADR as a no holds barred approach that has come to say and which could well be the birth of the future of justice and legal practice and the end of same as we know it today.

5.1

ONLINE DISPUTE RESOLUTION (ODR)

Apart from the conventional ideas and systems put in place by countries for the practice and development of ADR in their judicial systems, perhaps the most significant and the most creative is the birth of a concept known as Online Dispute Resolution (ODR). Today, the world has been reduced to the size of a ‘room’ where all the people in the world could chat, do business together, go to

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

school, conduct research, minister, etc. That ‘room’ is called the ‘World Wide Web’ or the ‘Internet’ and it has earned the world the status of a global village where practically anything can be gotten and anyone contacted by the tap of a finger. The rise of the internet has brought within reach of people all over the world possibilities that were completely unthinkable only two decades ago.

It is a basic fact of life that two or three people cannot live together for a year without some kind of dispute or disagreement coming up between them to a larger or smaller extent. Daily, contracts are being entered into online, intellectual properties of all kinds are being published and all sorts of human relations are being established. Hence, the internet is all the more prone to disputes arising from its usage and the interactions of hundreds of millions of people. Alternative Dispute Resolution (ADR) has come about as a panacea to that problem and also as a viable redirection from the ‘take it to the courts’ mentality of the people. Online Dispute Resolution (ODR) furthermore, has been created as a means of settling the special brand of disputes and disagreements that arise from the use of the internet and also as a tool for effecting the speedy resolution of other disputes that did not occur from the internet.

By definition, Online Dispute Resolution (ODR) is simply ADR that has one overarching feature – the fact that it takes place online.1 ODR in its broadest sense 1

Fazzi, Cindy "Conflict Resolution in the Age of the Internet". Dispute Resolution Journal. Aug-Oct 2005.http://findarticles.com/p/articles/mi_qa3923/is_200508/ai_n15704694,

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

is basically ADR facilitated by incorporating the use of the internet. It started as a means of resolving commercial and other disputes that arose online, but has now been made to function as the resolution of all kinds of disputes in cyberspace.

5.1.1

Categories of Online Disputes

The type and factual scenarios of disputes that can arise online are probably as vast as those that can arise in the tangible world. There are three general categories under which each dispute can be slotted. These are:

1.

E-Commerce disputes

2.

Domain Name disputes

3.

Intellectual Property disputes2

E-Commerce disputes arise when a business transaction between a business and consumer or two businesses takes place online, entirely in cyberspace. The internet has become a global market in which practically anything is available for sale. Most individuals and families do most of their shopping online. Amazon.com, eBay.com and Bestbuy.com are some examples of the thousands of online shops available on the internet. Increasingly, whole transactions can be conducted and concluded online without ever meeting face to face. Sometimes 2

Colin Boyer, J.D., An Introduction to Online Dispute Resolution, http://www.adrlawinfo.com/online.html

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

these transactions go awry with either defective products or other breaches in the terms of contract and thus begin the whirlwind process of obtaining redress. ODR has made this process easier by providing the opportunity to obtain justice online. This is one of the greatest working strengths of ODR because since the whole transaction is conducted without ever meeting face to face, the issue then is who to sue to the conventional courts and exactly where to find the person.

Domain name disputes present yet another fertile ground for disputes in cyberspace. A domain name is a personal address used to arrive at a specific destination on the internet. It is an address, much like the street address of an individual’s house in the real world. The dispute arises when two parties claim ownership of the same domain name. It is impossible for two entities to share the same address; therefore the issue becomes who should rightfully get to use the address? In the earlier years of the internet this was the major problem that had to be dealt with and till today, such disputes still arise daily.

Intellectual property disputes arise mainly because of the amount of information available via the Internet. The most notable example of an intellectual property dispute would be the sharing of copyrighted music via file sharing. The shear magnitude of the infringement requires an innovative flexible forum to help clarify the issues and possible solutions. ODR may provide that forum.3 3

Ibid.

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

5.1.2

Venues for Online Resolution of Each Category of Disputes

The aforementioned categories of disputes have various avenues online for their resolution. For E-Commerce disputes webmediate.com and squaretrade.com are the premier venues. WebMediate and Squaretrade specialize in matters where the disputants seek a monetary settlement as an end to the dispute. Some scholars believe that since the disputes arise online each party is familiar with the methods of communicating online and that the use of such a service becomes that much more convenient. This is an overstatement because there are countless users of the internet that only know how to check their mail and perhaps browse a few sites and conduct small-scale research. With that said, sites like webmediate and squaretrade do provide a forum to resolve disputes arising from e-commerce that are convenient and efficient.

When an issue arises, the aggrieved party can utilize either site to initiate the negotiation to resolve the dispute. Essentially what occurs is the aggrieved party will begin the process by entering a demand to resolve the issue and will await a reply from the other party. Should the other party wish to take part in the negotiations a counter offer can be made through the site. After a number of rounds of negotiating a computer program will evaluate the final demand/offer of each participant and if the numbers are within a certain range the computer

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

program will usually split the difference and resolve the matter. By taking part in the negotiations each party agrees to be bound by the determination. Squaretrade is slightly different in that direct negotiations between the parties are preliminary to utilization of the round robin bidding process. Also, through squaretrade the parties have the option to employ the assistance of a live mediator prior to moving on to the computer program solution.4

5.1.3

Resolution of Other Disputes Online

For normal disputes arising between two or more parties which would have ordinarily have been negotiated, mediated or arbitrated normally, the internet has also become a venue and veritable tool in the dispute resolution process. This is why many view ODR as conventional ADR with an included fourth party – the internet or computer technology.5 This form of ODR, which deals with disputes which did not originate online, operates based on the principle that countless forms of business and endeavour in the world today benefit from computer / information technology and that ADR could also be more efficiently conducted in cyberspace often eliminating the need to meet physically to negotiate or mediate disputes. This could be extremely helpful in cases where the parties simply cannot be in a room at the same time because of their level of animosity towards each

4 5

Ibid. Fazzi, Cindy, Op. cit.

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

other. The ability of the participants to conduct mediation sessions online at their own pace also removes the need to meet at a central location.6

It is suggested that a mediator can use the Internet to communicate with the parties, post forms, handouts and exhibits electronically to avoid the cost of paper reproduction, use e-mail or chat services for caucus discussions at the party’s convenience and send draft agreements electronically. Since cheaper costs are a huge consideration in opting for mediation and not arbitration or litigation, it seems sensible that if the mediator can reduce cost to the parties through the use of ODR, while being true to the process, he should do so.7

ODR removes, to some extent, the time pressures imposed on parties. When working through an ODR the parties do not lose valuable down time traveling, rescheduling meetings and waiting while the mediator caucuses with the opposing party and thus ODR could help the parties become more methodical and deliberate in approaching the issues.

In the aggregate, the time spent by each

side might well be less than if they participated in a traditional mediation. ODR provides cost savings for disputes that arise online as well. It has been suggested that cyber mediation may be the only method feasible for the traditional e-

6 7

Colin Boyer, J.D., Op. cit Ibid.

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

commerce claim involving a low dollar amount. It is suggested that hiring an attorney for the purposes of settling an online dispute is unwarranted.8

On the downside, however, this ability to conduct mediation and other ADR processes through ODR where the parties do not necessarily have to meet face to face is its own greatest disadvantage. The inability to observe the parties, cajole the parties in caucus or use charisma to move parties inhibits the Mediator. With ODR much of that interaction is lost. As such, in the use of ODR for the settlement of online disputes in which the parties never met face to face to conduct business, the parties do not have to see face to face in resolving the disputes. Besides, in most cases, it is impossible. For example, how practical would it be to insist that an eBay trader residing in California, USA meet for dispute resolution with a Nigerian in Lagos or New York over a dispute involving $150? However, this loss of personal interaction could hurt the process of employing ODR to resolve disputes that did not occur online somewhat, but it is still generally believed that skilled mediators would be able to adapt to the system to make it work for them.9

In conclusion, it seems obvious that the Internet is here to stay and for that reason alone, ODR is likely to stay as well. It is a safe bet that the use of the Internet as

8 9

Ibid. Ibid.

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

an electronic medium for ADR processes will continue to grow, and further that it will form an essential part of ADR education and practice in the future.10

The uncertainty lies in ODR's effectiveness and applicability. In online arbitration, for example, there is the pertinent question of whether courts will enforce awards that issue from online arbitration.11 The world of ADR is till adapting to the inclusion of ODR and the possibilities and challenges that come with it. When this is fully done, ODR will become a worthy tool in further simplifying the process of dispute resolution. The need for lawyers, mediators, negotiators and arbitrators to become technologically sound cannot be overstated. Those who are bound to reap the benefits of ODR are those who will distinguish themselves in the creative use of the Internet and other computer and information technology.

5.2

CORPORATE / COMMERCIAL ADR

Increasingly the business world is learning that the conventional means of dispute resolution through litigation is not serving their purposes as best as possible. The problems of delay most especially keep businesses and multi-nationals in courts for far too long, thus causing the option of ADR to be most welcome.

10 11

Canadian Arbitration and Mediation Journal, Vol. 12, No.2 (Winter 2003), p. 5 Fazzi, Cindy, Op. cit.

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

In the United States of America, corporate executives were of the opinion that the high cost of civil justice is a drag on U.S. business and the economy. Fully 83% say their decisions are increasingly affected by the fear of lawsuits and a 62% majority say the legal system significantly hampers healthy competition....An overwhelming 97% favour much more use of alternative methods to resolve disputes! In most jurisdictions around the world, there is currently up to a two year wait for a trial date, and it may take a full five to eight years to see a case through to the Court of Appeal.12

In the 1980s, the demand for ADR in the commercial sector of the United States of America began to experience speedy growth as the effort to finds more efficient and effective alternatives to litigation became more and more intense. To date, the use of private arbitration, mediation, negotiation and other forms of ADR in the corporate world has increased drastically. This was further aided by the explosion in the number of private firms offering ADR services thus removing ADR from even the court-connected dispute resolution houses to the fully commercial setting.13

12

Peter Grove, Fast Track Alternative to Litigation for the Business Community, The British Columbia International Commercial Arbitration Centre, www.bcicac.org

13

S. Brown, C. Cervenak and D. Fairman, ALTERNATIVE DISPUTE RESOLUTION PRACTITIONERS’ GUIDE; Center for Democracy and Governance, March, 1998, p. 5

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

In day-to-day business affairs, disputes are often inevitable. Contracting parties might disagree as to their individual rights and obligations no matter how carefully a contract is written. This can lead to delayed shipments, complaints about the quality of

merchandise,

claims

of

nonperformance,

and

similar

misunderstandings. The resolution of such disputes, however, need not be costly and acrimonious. ADR saves the time and money of corporate organizations and helps preserve those relationships that are crucial to the future and profits of the company. Business is built on clientele and where litigation is fully pursued it often results in estrangement in business relationships. ADR counters that effectively.14

Corporate executives are discovering daily that their institutional systems of dispute resolution border primarily on litigation and that this is no longer efficient in delivering the justice they require from time to time. As a result of this, countless companies and multi-nationals are changing the appellation of their dispute settlement departments from mere ‘Litigation Departments’ to ‘Dispute Resolution Departments’. This shift 14

American Arbitration Association, A GUIDE TO MEDIATION AND ARBITRATION FOR BUSINESS PEOPLE, (Amended and Effective September 1, 2007), p. 2

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

embraces much more the numerous alternative means of dispute settlement and these are faster and more cost-effective than depending on the courts. Litigation is increasingly becoming a matter of last resort for the business world and indeed, it makes the business world run smoother when contracts can be entered into with the knowledge that any disputes arising thereof will be swiftly resolved and it is not uncommon in large international contracts where there are cultural and language barriers to have the parties name a ‘deal facilitator’ in the contract. The deal facilitator is appointed at the time the contract is negotiated and continues to be available throughout the execution of the contract to help resolve all disputes arising from the performance of the agreement.15

Initially it was the Insurance industry that favoured the use of mediation to settle disputes arising from claims and counter claims. Thus ADR was introduced into the mainstream of commercial endeavour.16 This favourable experience in the insurance industry was widely publicized and it wasn’t long before experiments with “courtconnected” mediation led to the mediation process being accepted as a feature of 15 16

Canadian Arbitration and Mediation Journal, Vol. 12, No.2 (Winter 2003), p. 5 Richard J. Weiler, Commercial Mediation – We Ain’t Seen Nothing Yet, Canadian Arbitration and Mediation Journal, Vol. 11, No. 1 (Winter 2002), p. 9

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

modern courts. Other structural changes fueled the growth of commercial mediation such as Codes of Professional Conduct requiring lawyers to consider mediation when advising clients, ADR “pledge” programs such as that instituted by CPR Institute for Dispute Resolution in New York and the Canadian Foundation for Dispute Resolution and the growth of multi-step dispute resolution clauses (requiring mediation and then arbitration) in domestic and international commercial agreements and the United Nations Commission on International Trade Law (UNCITRAL) adoption of the Model International Conciliation Law in June 2002.17

Two sectors that employ ADR in resolving disputes arising in the course of their commercial endeavours are the Energy and Construction industries. The complex issues and grievances that arise from these industries often require professionals who are not only trained in negotiation, mediation, conciliation and arbitration, but are also vast in the mentioned fields of energy and construction. One way this inclusion of ADR in these industries is by the appointment of a Dispute Resolution Board (DRB).18 This board is usually engaged when the contract documents are being drawn to give their expert opinions as touching terms, clauses and items that are ambiguous or carry potential for causing disputes. When disputes do arise in the course of the execution of the agreement, it is the 17 18

Ibid. Edward Gluklick, Why Every Construction Project Needs A DRB, Canadian Arbitration and Mediation Journal, Vol. 12, No.2 (Winter 2003), p. 11

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

DRB that functions as the dispute resolution medium. Contracts in the construction and energy industries are prone to uncertainties like delays in arrival of equipment, bad weather or limited labour and each of these could spark contentions as to which parties are at fault and because countless parties are involved in such contracts, the chain reaction of such contentions could lead to the total breakdown of the whole contract. The courts have only succeeded in causing further delays in the executing of such contracts because where court injunctions are sought, they only bring the work to a halt and then take years to resolve. This is why ADR has become the favoured choice in the resolution of such contracts.

5.2.1 Ex Ante and Ex Post ADR Agreements

It was mentioned earlier that ADR clauses are increasingly being introduced into contracts to determine the approach to be taken in the event of a dispute or breakdown in the contractual relations between the parties. This is a significant trend in the practice of ADR worldwide because it is a systematic phasing out of the original idea that only the courts dispense justice. Ex Ante ADR agreements are simply ADR arrangements made before the disputes in question arise.19

19

Steven Shavell, Alternative Dispute Resolution: An Economic Analysis, The Journal of Legal Studies, Vol. 24, No. 1 (January, 1995), p.1

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

Ex ante ADR agreements arise where there is contact between the parties even before the events that could lead to disputes arise. It most often occurs where parties intend to contract and are considering the problem of inadequate performance or breach and considering the mutual advantages of ADR, they decide to make express provisions in the contract for the methods of resolving any disputes in the event that they occur. Such agreements often work to induce a change in behaviour of the parties in a manner that benefits both parties. With the knowledge that a certain approach would be taken to resolve any disputes, the parties could consider the costs involved and though cheaper than the courts, decide to fulfill their contractual obligations in a bid not to necessitate any such action.20

Such ex ante ADR agreements are usually enforceable by the law, especially where it is shown that both parties were adequately informed of the working of such an agreement and the implications of pursuing ADR instead of traditional litigation and also where the ADR agreement is not deemed to adversely affect any third parties. 20

Ibid.

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

On the other hand, ex post ADR agreements are those made after the disputes have arisen. The only difference between ex ante and ex post ADR agreements and their advantages is that while the former could influence the parties’ behaviour and probably avert the occurrence of disputes, the latter occurs after the disputes have arisen and therefore cannot influence the parties’ behaviour in such a way and is more palliative than preventive.21

In practice, sometimes parties are not always eager to make ex ante ADR agreements because they deem it not worth the trouble since the odds of a dispute arising are low and also because, in the event of a dispute, they can easily make ex post ADR agreements.

It must be noted that ex post ADR agreements are not the settlement agreements reached at the end of ADR processes themselves, but the mere decision to resort to ADR and the specification of such process and how they are to be conducted.

21

Ibid. p. 9

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

5.3

ADR IN LABOUR MANAGEMENT

Another area of practice in which ADR has been of immense influence is in the field of labour and management. Although not altogether new in this realm, ADR has recently received and continues to enjoy increasing acceptance as a veritable tool in the resolution of workplace disputes. To quote David G. Carnevale of the University of Oklahoma, USA: ‘Conflict in organizations is inevitable’.22 Today countless Human Resource (HR) departments in organizations and businesses employ ADR methods in dealing with the many grievances that arise daily, from mere complaints through collective bargaining to strike actions and lay-offs.

Unions are particularly interested in ADR because, in theory at least, they cause for a higher rate in the settlement of grievances without necessarily resorting to arbitration. The costs involved in this process are cheaper for the companies than ordinary litigation and such decisions are reached in shorter time than the companies would have had complaints dealt with. ADR 22

D. G. Carnevale, Root Dynamics of Alternative Dispute Resolution: An Illustrative Case in the U. S. Postal Service, Public Administration Review, Vol. 53, No. 5 (Sept – Oct 1993), p. 455

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

in the workplace enhances the collaboration between the workers and the management. This also strengthens the relationships between the two.23

Here, the aim of ADR is to design systems that serve as worthy alternatives

in

arriving

at

faster,

cheaper

and

more

representative decisions. The list of possible outcomes of crises where ADR is not employed is endless. Most often, there is first a breakdown in communication and the loss of trust, while the leaders of both management and staff look for ways to ‘win the battle.’ ADR is not like that and the focus is not on who wins but mutual understanding birthing an accepted resolution.

5.4

STATE-BASED ADR PROGRAMMES

The phenomenon known as ADR is no longer novel in the world of law and justice. Countries all over the world have designed and continue to implement newer ideas and strategies to ensure that alternative means to the resolution of disputes other than litigation are discovered and explored. Although ADR is well known and practiced to larger or lesser extents in these 23

Ibid.

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

countries, the drive in contemporary times is to have the administration of ADR more organized and structured the achieve more results in the delivery of justice to government, the corporate world and individual members of their communities. Some of these endeavours are chronicled below.

5.4.1 ADR in South Africa

South Africa obviously has a past of political disputes and turbulence and with the deep sigh of relief in the early 1990s with the abolishing of apartheid, the country has been known as one of the most proactive in experimentation with ADR.24

The Independent Mediation Services of South Africa (IMSSA) was established as an NGO in 1984 and was set up to work in four main project areas: 1. the Industrial Dispute Resolution Service (IDRS) handles labour issues;

24

Carolyn Logan, Research Consultant to Conflict Management Group’s USAID/ADR Project, 1997, ALTERNATIVE DISPUTE RESOLUTION PRACTITIONERS’ GUIDE, Case Studies, p. 3

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

2. the Community Conflict Resolution Service (CCRS) handles ad hoc negotiations of community disputes like taxi wars, disputes in schools, inter-tribal disputes, etc; 3. an elections and balloting project, and 4. a training department that trains individuals, organizations and even the government in conflict resolution techniques.25

Much of the successes of the IMSSA in its early years was largely due to the disrepute of the country’s legal system as most of the public viewed the courts as illegitimate and unjust. It must be noted, however, that the IMSSA was established as an NGO and was, at the time of apartheid, a parallel to the judiciary. Its activities and advances in ensuring justice to the corporate community as well as the unfavoured sections of the citizenry was highly applauded by all and after the elections of 1994 served as catalyst to government later identifying that ADR was to be embraced and its incorporation into the government’s plan.26

25 26

Ibid. Ibid. p. 5

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

Following this major landmark, most of the government officials appointed came from ADR backgrounds. The Minster of Justice, Dulla Omar, who had worked for an NGO working in ADR played a huge role in the wider provision of ADR services in the country such as developing the community court system within the Department of Justice. The National Land Reform Mediation Panel was also established for the resolution of land disputes and all these led the government to create the Commission for Conciliation, Mediation and Arbitration (CCMA) – a statutory body designed to provide ADR services for the resolution of labour disputes based on the model developed by the IMSSA.

Since it started work in 1996, the CCMA has had its caseload grow incredibly. With 834 cases in its first month of operation to the total of about 34,000 cases brought before it in its first nine (9) months, the body saw first hand the need for more organized dispute resolution processes initiated by the government.27 When the NGOs were established they were ready alternatives to the failing system of justice in the country, but with the new government and its initiatives at peace and good governance, the people responded positively to the work of the CCMA as a 27

Ibid. p. 13

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

reflection of their trust and hope in the new government and as a signpost to just how relevant ADR would grow to be in the country.

The greatest factors that have led to the huge success of these initiatives in South Africa and which should continue to be harnessed for increased growth are the need for quality panelists,

financial

sustainability,

proper

evaluation

and

monitoring and adequate community orientation amongst others.

5.4.2 ADR in Ukraine

Although it wasn’t until June 2004 that organized ADR came to Ukraine in the form of the Courts of Arbitration Ad of Ukraine28. This Act was established to grant individuals and companies a greater avenue for the protection of their rights. They were enabled to transfer their conventional disputes (whether commercial or civil) to courts of arbitration that are not

28

No. 1701 - IV

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

run by the state.29 These arbitration courts could be permanent or ad hoc and have been found to be more favoured by the people as opposed to the state courts.

The basic advantages discovered in the operation of such courts of arbitration over the conventional state courts in Ukraine were: first, the freedom of choice. In the state courts the rules of procedure generally determine where a claim must be filed decided, generally parties can choose any available court of arbitration to hear their dispute. Second, these courts of arbitration

were

established

not

for

the

settlement

of

international commercial disputes alone, but also Ukrainian disputes

that lack

an international

element. Third,

these

arbitration courts are much cheaper than pursuing suits in state courts because court fees, legal fees and the costs of endless appeals are not involved in the costs of the arbitration. Also, these courts ensured that the parties were heard fairly because they were established by various civic organizations with diverse vested interests, and lastly, the Ukrainian courts of arbitration made for prompt trials unlike the state courts that seemed to take pride in the extension and endless dragging of court cases 29

Articles 1 and 5

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

and more so, as the decisions of the courts of arbitration are final and binding, appeals cannot be made unlike with the decisions of the common state courts.30

Overall, the introduction of this Act came to Ukraine with great potential and has been widely explored. Perhaps the greatest strength of this initiative was the support it received from the Ukrainian government in giving both the ad hoc and permanent arbitration courts the free rein to arbitrate cases and resolve disputes, some of which were high profile cases that would originally have been of national interest without interference from them.31 Commercial mediation also received a boost because it was companies and other commercial entities that first made the most use of the courts of arbitration. As commercial arbitration had already been highly successful in other countries in the world, Ukraine began to gain increasing exposure to such dispute resolution processes within the business community. These mediations were obviously cheaper, less unpredictable and with more practical or easily implemented decisions or rulings than the state courts and offered a means of 30

I. Paliashvili and V. Kovalenko, Alternative Dispute Resolution – New Prospects for Alternative Dispute Resolution In Ukraine, Ukrainian Legal Group, L.L.C, www.rulg.com, p. 3 31 Ibid.

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

preserving the reputation of the disputants without the heavy publicity associated with such cases in the conventional courts.

5.5

THE REGULATION OF ADR

It has been identified that in most of the countries where ADR is being practiced worldwide, only a few have rules and regulations administering the use or operation of ADR. In most places, ADR operators and practitioners in a bid to advance their trade, lack procedure or standard and take on much more cases than they have the structure and capacity to handle. This situation has led some jurisdictions to institute regulations governing the practice of ADR and these have been proven to engender formality, form and competence in the field and provides for sanctions for incompetent or erring practitioners of ADR. As mentioned earlier, where there is proliferation of any concept, abuse is inevitable, thus these regulations make it possible to raise the standard and professionalism of the practice of ADR and this should be encouraged and replicated in all other countries where ADR is being practiced and championed as a solution to the problems and shortcomings of their legal systems. After all, why institute

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

ADR as an alternative to the courts when it will itself soon enough fall prey to the many problems that plague the courts more if practitioners are encouraged to charge whatever fees they like, take on case loads they cant handle that will eventually lead to delay, etc.

In Scotland, it was discovered after long research that there was hardly any form of regulation for ADR and that it was highly necessary to provide some regulations for ADR practice. This regulation started in the form of control of ADR service-providing organizations themselves by threats to withdraw financing for these publicly-funded ADR projects.32

The question of how far ADR should be regulated in the United Kingdom is a subject of endless debate. Some suggest that there should

be

an

‘umbrella’

organization

established

for

the

coordination of ADR education and training, for regulation and accountability for those entering ADR practice and for monitoring the quality of service being provided.33

32 33

B. Clark and R. Mays, Regulating ADR – The Scottish Experience, [1996] 5 Web JCLI, p. 2 Ibid.

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

Canada only recently had their National Arbitration Rules and new Mediation Rules of the ADR Institute of Ontario launched 34 to be used in conjunction for the regulation of Canadian business disputes.35 This came in response to the countless calls for regulation of arbitration and mediation practice in Canada. According to Randy Pepper36:

“It is long overdue to have Canadian rules and administrative procedures for arbitration and mediation…designed to provide effective administration of disputes….” 37 These rules actually came to also provide an answer for a problem that was uniquely Canadian. Canada has regions that before this time had their own arbitration and mediation laws that regulated these practices in the respective regions. It became a problem over time to determine what rules to abide by when the two disputing parties came from two different regions. Thus the National Arbitration Rules and the Mediation Rules made for uniformity in the administration of ADR all over the country.38 34

In October 2002 Canadian Arbitration and Mediation Journal, Vol. 11, No. 1 (Winter 2002), p. 3 36 Partner at Osler, Hoskin & Harcourt LLP, Canada. 37 Canadian Arbitration and Mediation Journal, Op. cit. 38 Ibid. 35

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

The form regulation takes in Scotland on the other hand is that mediators must be accredited by any of three ADR organizations: The Law Society of Scotland’s mediation service (ACCORD) which started promoting ADR service in Scotland in 1994, the Centre for Dispute Resolution (CEDR) which is the flagship commercial ADR organization in the UK established in 1990 and the Mediation Bureau, a company established in 1994 by a retired sheriff. These organizations all accredit ADR practitioners after appropriate training in ADR related services.39 Although these organizations do not strictly supervise the practices of those accredited members or organizations, but however, issue codes of standard practice to be followed.

It must be noted however, that there are those who argue that tight regulation of ADR is unnecessary because it could induce undue professionalizing of mediation practice and thus lay people

may

not

be

able

to

attain

to

such

heights

of

professionalism. Others claim that mediation is based on trust and that since the process is voluntary and without prejudice, 39

B. Clark and R. Mays, Op. cit, p. 2

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

regulation of it would have no effect. Lastly, lawyers claimed that regulation of this sort would only serve to inhibit the growth expected in the development of alternative dispute resolution mechanisms.40

One of the greatest difficulties encountered in the regulation of ADR is that mediation and arbitration by nature cut across diverse frontiers of profession and practice. As such to seek to jointly regulate ADR would mean that some of the rules would not be well-suited to cater for the peculiar demands of these professions or sectors. For example, international commercial arbitration, mediation for construction or arbitration among banks are based on the unique demands and to attempt to make them uniform would undermine the effectiveness of each.41 Another problem is how to regulate the regulator especially where independent regulatory bodies are concerned and this has caused individuals to suggest that regulation should be left to the industry or emerging profession to create model standards for their own practice.

40 41

Ibid. p. 3 Ibid. p. 5

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

It can be concluded, however, that some form of regulation is required if ADR is to be free from unscrupulous elements who only seek to enrich themselves through the pain and distress of others. Those countries that have begun formulating rules, regulations and guidelines for the administration and regulation of ADR are on the right track.

In conclusion, it is no longer news that various trends emerge daily

in

ADR.

These

trends

serve

as

catalysts

for

the

development of ADR because other organizations and indeed, countries duplicate these ideas and programmes and it is found that ADR becomes more tailored to meet the needs of disputants and guarantees the swifter and more customized solutions to their disputes of varying kinds.

Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.

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