Paul Idornigie SAN C.Arb

…Legal Resource Center

Principles & Techniques of Alternative Dispute Resolution (ADR)

Introduction

At one time, the thought of someone seeking legal redress especially in civil matters was  that of suing and “going to court”.  However it has become a notorious fact that disputes, unlike wine do not improve by aging:  many things happen to a cause and to parties in a dispute by the simple passage of time. Delay in settlement or disposal of conflicting claims is indeed a primary enemy of justice and peace in a community.

The question that has been with civilization since the dawn of recorded history has been how to find a reliable, expeditious and satisfactory dispute settlement mechanism which is inexpensive, reasonably quick and accessible to the whole community. This is a realization of the fact that in such communities, disputes are bound to arise.

It is debatable whether in an African setting, litigation has been the main forum for resolution of disputes.  However,  the judicial process tends to transform social, political and economic disputes into legal disputes.  Not only are some problems ill suited to a proper or full resolution through the adversarial process, the process may accentuate and exaggerate disputes rather than resolve them.  As the courts grew, delays, formalities, technicalities, publicity, alleged corruption and the like crept in.  The “win/lose” syndrome associated with litigation is so well known.

If we concede that litigation was the main forum for dispute resolution, from resolving disputes in a fixed and identifiable place called a court or courtroom, it is often that some disputes can be taken away from the court to any place – “out of court” for neutrals to resolve.  When disputes are settled ‘out of court’, the focus on interests and needs of the parties and the society  rather than the rights  of the individual changes the way in which disputes are categorized, analyzed and processed.  This requires a total re-orientation and change of attitude and hence the concept of Alternative Dispute Resolution (ADR) processes.  Interestingly, the holy books support the ADR processes[1].

In this presentation, therefore, we will give an overview of the Principles and Techniques ADR processes.

 

Meaning of Alternative Dispute Resolution

ADR is an acronym that has several meanings essentially because there is no agreement on what the acronym stand for.  Does the  word ‘A’ stand for ‘alternative’, ‘appropriate’ or ‘amicable’? If it is ‘alternative’, the next question is ‘alternative to what’?  ‘Alternative’ to litigation or mediation or conciliation.  This is so because much of ADR’s value lies in the notion of a spectrum of dispute resolution mechanisms, with alternatives adding to, rather than replacing the litigation option.  It is safe to assert, therefore, that ADR also describes processes which add to and enhance the range of resources and mechanisms to settle disputes. Essentially the processes change our focus on how disputes are categorized, analysed, and processed.

In the western world, ADR may be defined as a range of procedures or processes  that serve as alternatives to litigation through the courts for the resolution of disputes, generally involving the intercession and assistance of a neutral and impartial third party.  In some definitions, and more commonly, (most jurisdictions), it excludes not only litigation but all forms of adjudication.[2] These other forms include arbitration.  However, even Brown and Marriott now argue that it includes arbitration thy thus[3]:

It is now widely accepted  – including by the authors of this work – that arbitration, contractual adjudication and other forms of dispute  determination by a third party are also forms of ADR.  The view that ADR is (or should be) alternative to all forms of third party determination and should embrace only non-adjudicatory process is no longer seriously propounded.[4]

ADR can also be defined as a system of dispute resolution which is non-binding and by non-binding is meant the absence of imposed sanctions.  In other words, the parties are under no obligation to comply with any decision or determination resulting from the process, if indeed there is one.  Nor are the parties obliged to participate in or continue with the process in the absence of express contractual provision to that effect.[5]     However, for purposes of this article, we will consider arbitration as part of the ADR processes.  Mediation/conciliation is at the core of ADR  processes while negotiation is common to all processes.

It is now generally recognized that other processes and forms include private judging, expert determination/appraisal, med-arb, Ombudsman, early neutral evaluation, mini-trial (executive tribunal), and court annexed arbitration.[6] Broadly, all processes can be divided into two: adjudicatory and consensual and the hybrid combinations in between them.

 

Whatever the viewpoint, ADR is like a confluence with many tributaries.[7]  Lest we are misunderstood, we are merely saying that there are alternatives to litigation.  Of course, we still go to court when the goal is to protect someone’s rights, clarify a point of law or set a standard for public behaviour.  However, it is advisable to establish a nexus between a dispute and a process so as to determine the process that is most appropriate.  Thus we should know when to go to court or go out of court.

Meaning of Arbitration

Generally the essence of arbitration is that a dispute has arisen or potential for a dispute will arise and the parties, instead of going to the conventional courts, decide to refer the dispute to a private tribunal (arbitrator[s]) for settlement in a judicial manner. The implication of that agreement is that the decision of the arbitral tribunal (called an award) will be binding on them. In order to ensure that such a method of settling disputes is effective, assistance is usually given by the ordinary machinery of law to ensure that such awards can be enforced. Similarly, as a safeguard against impartiality and absence of due process, the court can, in certain instances, impeach an award.

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