Chapter Three

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

CHAPTER THREE THE HISTORICAL DEVELOPMENT OF ADR “Conflict is an inherent and ubiquitous element of human society, from the dyad to the largest human group. There is no human group or society in which life moves along in harmony at all times. Individuals do not always do what society expects them to do, and they frequently behave in ways that disrupt the social order. Every society is aware of the repercussions of unresolved conflicts. Consequently, every human group has developed informal and formal mechanisms to bring about conflict resolution.” 1

ADR has come to be widely accepted in the world of resolution of disputes today and with the momentum with which it is spreading across the world, one may be tempted to think that alternative means to resolving conflicts or disputes as opposed to traditional court litigation is a recent development. Indeed, many present the 1976 Pound Conference where Professor Frank E. Sander of the Harvard Law School introduced the Multi-door Court concept as the birth of ADR. A survey of the long history of ADR will aid a better understanding and appreciation of the concept and will help generate better tailored ideas as to its development in its administration and practice today.

3.1 1

A BROAD HISTORY OF ADR

Daniel A. Offiong, Conflict Resolution Among the Ibibio of Nigeria, Journal of Anthropological Research, Vol. 53, No. 4. (Winter, 1997), p. 423

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.

Dispute resolution has been a part of human existence from as far back as Bible times. During the years of the exodus of the Israelites from Egypt, Moses functioned as judge over the nation Israel and mediated in disputes brought before him by any one who had a problem with his neighbour among the people. 2 Also, the famous story of King Solomon mediating in the dispute between the two mothers who laid claim to a baby after the other child had been killed in the night gives a veritable example of resolution of disputes between parties.3 Hence, since conflicts and disputes are a normal part of everyday existence within a society, methods and systems of resolving them have existed as far back as man began to live in a society and not alone.

What has come to be known as ADR was also already existent in pre-colonial Africa as we shall come to see later in this chapter, but where formal western alternative dispute resolution is concerned, its first appearance was in Ancient Greece, where according to Greek Mythology, the royal shepherd, Paris, was called upon to mediate between the goddesses Juno, Athena and Aphrodite in their conflict about who was the most beautiful.4 Apart from myths, the Athenian courts became crowded and slow in the years leading to 400 BC and this led to the creation of the position of public arbitrator, which, according to Aristotle, each man was to fill in 2

Exodus 18: 13 - 26 1 Kings 3: 16 - 28 4 Jerome T. Barrett and Joseph Barrett, A HISTORY OF ALTERNATIVE DISPUTE RESOLUTION: The Story of a Political, Social and Cultural Movement, 2004, San Francisco, John Wiley & Sons, p. 7 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.

his 60th year. Thus the well-defined and surprising formal and procedural system of arbitration developed and thrived in Greece.5

In more recent times, at the tail end of the late 19 th century attempts were made to develop the use of arbitration and mediation in response to the disruptive conflicts between labour and management in the United States. However, it wasn’t until 1898 that Congress followed initiatives by authorizing mediation for collective bargaining disputes.6

In the ensuing years, special mediation agencies, such as the Board of Mediation and Conciliation for railway labour, (1913) which was renamed the National Mediation Board in 1943, and the Federal Mediation and Conciliation Service (1947) were formed with the responsibility of carrying out the mediation of collective bargaining disputes. By this time, there was a reasonable amount of faith in the ADR systems of negotiation, mediation and arbitration and these were deemed helpful in resolving collective bargaining disputes. This was reflected in The 1913 Newlands Act. Mediation was not conceived as an alternative to adjudication. It originally was merely an alternative to strikes and ensuing economic disruption which occurred when unassisted settlement negotiations failed.

5 6

Ibid. History of Alternative Dispute Resolution, http://courts.delaware.gov/Courts/Superior%20Court/ADR/ADR/adr_history.htm

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.

Shortly thereafter, varied forms of mediation for non-labour matters were introduced in the courts. 7

Conciliation in a different form also appeared in domestic relations courts. An outgrowth of concern about rising divorce rates in the postwar 1940's and the 1950's, the primary goal of these programs was to reduce the number of divorces by requiring efforts at reconciliation rather than to facilitate the achievement of divorces through less adversarial proceedings. These early conciliation statutes were not widely considered successful in significantly increasing the number of reconciliations and have infrequent use. Still, some have remained in force and have provided the structure for child custody mediation, which emerged much later for other reasons.

Following privately funded mediation efforts by the American Arbitration Association and others in the late 1960s, the Community Relations Service (CRS) of the United States Department of Justice initiated in 1972 a mediation program for civil rights disputes. In the ensuing years, the US Congress funded a CRS staff that mediated hundreds of prison, school, police-community, and other civil rights conflicts. Settlements promoting civil rights and remedies for those subjected to discrimination, thus increasing their bargaining power. The legal system's policy for community-wide civil rights disputes became promotion of settlement, not as a

7

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.

means to achieve less expensive dispositions than possible through adjudication, but as a means to reduce discriminatory practices and promote racial harmony.

All this led up to the 1976 Pound Conference in Minnesota, U.S.A, Professor Frank Sander spoke of the “Multi-Door Courthouse” as a place where disputants could go to resolve their conflicts and find many alternatives or ‘doors’ to help them reach amicable solutions. It was a means of decongesting the courts and providing effective alternative methods of resolving disputes in the country’s failing judicial system.8 This was the birth of contemporary ADR as it is known today.

3.2

ADR IN AFRICA

It has been long argued that ADR was not introduced to Africa in recent times through the recent developments in ADR worldwide. Before the colonialists came with their adjudicatory system of dispute resolution, African communities had their long established judicial systems which explored means other than adjudication in the resolution of conflicts. Hence, these dispute resolution methods at the time can not be referred to as ‘alternatives’ as such, because they existed before the adjudicatory court system was introduced which ADR today is an alternative to.

8

Kehinde Aina, The Lagos Multi-Door Courthouse – One Year After, p. 21

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 old African communities thrived on a system where the members of the society saw themselves as family and this reflected in their relationships with one another. 9 A neighbour could see another’s child in some foul state or engaging in unbecoming or dangerous behaviour and discipline such an erring child as though he were her own. Also, parents could enlist the support and assistance of neighbours or other friends in the community in disciplining the child. Hence, the Yoruba proverb: ‘bami na omo mi, ko de inu olomo’, meaning that one who enlisted such help in beating or punishing a child cannot be said to mean it, because when such discipline goes too far, it is the same parent that would save the child by picking a fight with the neighbour or friend doing the beating.

This communal existence was ingrained in the newer generations from childhood until adulthood. The extended family was the unit of society then and not the nuclear family as is commonly known today. The extended family comprised the father, mother and children (the nuclear family) along with other Uncles, Aunts, cousins, step-mothers, etc.10 In Ghana, for example, each extended family belongs to a specific clan in the community with each clan normally headed by the eldest living male within the clan or an elected elder of one family.11 Normally disputes arising from interpersonal relations between family members have been resolved through the extended family system. Under the clan system of Ghana which was in 9

Birgit Brock-Utne, Indigenous Conflict Resolution in Africa, A draft presented to the week-end seminar on indigenous solutions to conflicts held at the University of Oslo, Institute for Educational Research 23 – 24 of February 2001, p. 8 10 Senyo M. Adjabeng, Alternative Dispute Resolution in Ghana, www.mediate.com 11 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.

practice long before the advent of the colonialists, parents refer disputes in the family to the Head of Family who tries to resolve the dispute. When this effort fails, the clan head is called in to help. The last resort is normally the Chief, who gives a final and binding determination.12

This communal fabric was held together by highly esteemed societal norms and values which were entrenched in the customs of the land and which had taboos and other sanctions, both from the community leadership and the ‘gods’ of the land or ‘spirits’ of their ancestors.13 These norms and values were taught through songs, tales and the community folklore in general.

The elders in the community were seen as having authority to act as arbiters and give judgment on the rights or wrongs of a dispute submitted to them and suggest a settlement though they may have had no power of physical coercion by which to enforce them, but ultimately the last word belonged to the chief or king of the community and although many parties may have been involved in the resolution, the most authoritative views were those of the elderly.14 These dispute settlement measures had the sole aims of justice (i.e. what was fair to the parties) and the restoration of relationships and this goal of restoring and salvaging relationships reflected in the methods employed in mediating between the parties. For example, 12

Ibid. Birgit Brock-Utne, Op. cit 14 Elisabetta Grande, Alternative Dispute Resolution, Africa and the Structure of Law and Power: The Horn in Context, Journal of African Law, Vol. 43, No. 1. (1999), p 64 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.

in disputes involving husband and wife, or members of a family, the elders and family or community heads would make sure that blame is equally apportioned among the parties instead of placing the blame solely on one party. Thus, with each party being shown his failing, they went ahead to instruct certain lines of action to be followed based on consensus among the parties and every mediation or conciliation session ended with reconciliation between the parties. Another aim of such communal conflict resolution was to ensure the full integration of parties into their societies again, and to adopt the mood of co-operation.15

In its operation, African dispute resolution was very much like arbitration because it did not follow an adversarial pattern. Any person who was concerned that a dispute between the parties threatened the peace of the community could initiate the process. In the process, parties had the opportunity to state their case and their expectation but the final decision was that of the elders. Whereas the western type arbitration is attractive because of its private nature, customary arbitration is not private but is organized to socialize the whole society, therefore, the community is present. It has been said of customary arbitration in pre-colonial Nigeria that:

"Arbitration as a method of settling disputes is a tradition of long standing in Nigeria. Referral of a dispute to one or more laymen for decision has deep roots in the Customary Law of many Nigerian communities. Indeed, in many of the isolated communities, such a method of dispute resolution was the only reasonable one, for the wise men or the chiefs 15

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.

were the only accessible judicial authorities. This tradition still persists in certain village communities, despite the centralized legal system and the attendant efforts at modernization and reform of the legal system." 16

In conclusion, it amazing that such a complex system of dispute resolution existed among African and particularly Nigerian communities before the Common Law system of adjudication in practice today was introduced by the British colonial masters. Indeed, in the landmark customary law case of Lewis v. Bankole17, the court said:

“One of the most striking features of West African native custom … is its flexibility; it appears to have been always subject to motives of expediency, and it shows unquestionable adaptability to altered circumstances without entirely losing its character.”

3.3

INTEGRATION OF ADR INTO NIGERIA’S JUDICIAL SYSTEM

Western ADR, i.e. ADR as formally practiced around the world today, came into Nigeria

by

the

Arbitration

and

Conciliation

Act18

which

established arbitration as part of the processes of the resolution of commercial disputes in the country. This Act regulates all

16

Ezediaro, "Guarantee and incentive for foreign investment in Nigeria", (1971) 5 International Law, 770 at 775 17 (1908) 1 N.L.R 81 at 100 18 Now Cap A18, Laws of the Federation of Nigeria, 2004

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.

arbitration activities within the country and makes explicit provisions for all aspects of the arbitral process and proceedings.

Other than arbitration, contemporary ADR was received into Nigeria by the establishment of the Lagos Multi-Door Courthouse in 2002 as shall be seen in the next chapter.

Though ADR has been given notice by the courts and other judicial personnel, especially judges and other legal luminaries, the extent to which ADR has been entrenched in our judicial system is yet minimal. The cause of justice obtainable by means other than conventional court litigation has yet to be fully explored in Nigeria. ADR can still find inroads into the procedural rules of our courts and certain classes of disputes can be instructed by the courts to be subjected to ADR before filing at the courts.

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

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