Over time, the debilitating shortfalls of litigation, exemplified in protracted delays with attendant costs, strained relationships, unpredictable and unpalatable outcome of judgment without justice among others exposed its unsuitability to the needs of disputants and overall justice administration system. The consequent vigorous interrogation of the suitability of litigation as an exclusive formal dispute resolution model resulted in some alternative options: Alternative dispute resolution, among which are: Arbitration, Conciliation, Negotiation, Mediation, Early Neutral Evaluation and other hybrid processes.
ADR which evolved from private initiative in informal dispute resolution setting has now been integrated into formal dispute resolution system even as a supplement to litigation, otherwise known as Court-Connected ADR Centre, exemplified in the Multi-Door Court House system.
The Multi-Door Court House developed by Prof. Frank Sanders is an innovation that routers incoming cases to the most appropriate methods of dispute resolution. Sanders’s concept Comprehensive Justice Centre is rooted in the idea of a courthouse which provides several labeled doors, each, representing a dispute resolution mechanism in addition to the existing window and labeled door called litigation.
ADR mechanisms have proved to be more efficient and speedy in dispensing justice among disputants. Therefore, according to Professor Frank, the idea of a Comprehensive Justice Centre will offer access to justice for the citizenry and disputes would be resolved in different ways even within the established courts. To Professor Frank the same American courts which then applied the same legal system, appeared to handle tax disputes reasonably well, and labour disputes were routinely resolved through arbitration without enormous difficulty or waste of time, whereas, the courts handled family disputes far less effectively. He observed that the nature of a dispute has an impact on the efficiency of the legal system applied in resolving the dispute, thus, the need to have court connected dispute resolution mechanism to bridge the existing gap.
Alternative to Dispute Resolution arose because the litigation process was and still is, unduly expensive, the judicial technicalities involved results in case clogging and court congestion, thereby causing undue delay in the administration of justice, and hardship for the courts and parties involved. The emergence of ADR shares a lot of similarities with the principles of equity, like the narrative of equity and common law, ADR does not seek to eradicate the process of litigation, it only seeks to complement it.
According to Akomolede, the fact cannot be gainsaid that the dispensation of justice in Nigeria today is plagued with delay such that the various courts are inundated with cases which last for several years before they can be determined by the court (sic) of the first instance. Long adjournments, cumbersome and rigorous procedure, difficulty and ambiguous rules of evidence, and other several artificial obstacles are largely responsible for the delay which has so much haunted the dispensation of justice system for so long.
The above statement by Akomolede continues to remain the truth even almost a decade after his observation irrespective of the acknowledged developments in the court systems and rules in Nigeria today. Therefore, while the ever-growing claim on the need for Alternative Dispute Resolution (ADR) continues to be popular, accepted and relevant as part of the national and international legal systems there is emerging need to ensure that the use of ADR is targeted towards court decongestion.
According to Taiwo: A system that saves time and deals with cases expeditiously and fairly is, therefore advocated. It is in this regard that the court-connected mediation and court connected ADR recently brought in by reforms in the Rules of courts to afford the possibilities of pre-trial settlement, among other things are welcomed.
A wonderful illustration is a case which involved the former vice president of Nigeria, late Dr. Alex Ekueme. It was dispute with respect to the sale of a land in his capacity as chairman of an investment corporation. The case lasted in the court for 17 years, but when the matter was referred to the Lagos Multi-Door Courthouse (LMDC) for mediation, it was resolved in one day, between the hours of 10:00am and 8:30pm. A similar case was narrated by the President of the Court of Appeal Justice Zainab Bulkachwa at the inauguration of the Court of Appeal Mediation Centre; it was a dispute involving two Kano-based businessmen over a debt of N12.9 million. When the matter was referred to the Kano Multi-Door Courthouse, it was resolved in one sitting and both parties were able to re-build their commercial relationships.
ADR in Nigerian Legal System
The Nigerian legal system recognizes and encourages the use of alternative dispute resolution and peaceful methods of dispute resolution, especially in commercial disputes, labour and employment relations. Such methods can be achieved or resolved through arbitration, mediation, conciliation and collective bargaining.
The foreign policy objectives shall be-
19(d) “respect for international law and treaty obligations as well as the seeking of settlement of international dispute by negotiation, mediation, conciliation, arbitration.”
Until the year 2004, any suggestion that a Lawyer in Nigeria would be committed to any method of dispute resolution other than litigation, or infrequently arbitration would have been dismissed. Like the courts, the Bar saw its “business” as litigation. Yet, few years later, many Lawyers are not only heavily engaged in mediation, case appraisal and other methods of so-called Church Dispute Resolution, but both the Bench and the Bar Association are now actively facilitating that, by providing appropriate physical premises.
Rule 15(3) of Rules of Professional Conduct for Legal Practitioner, 2007, provides as follows:
“In his representation of client, a lawyer shall not fail nor neglect to inform his client of the option of ADR mechanisms before resorting to or continuing on behalf of his client.”
The arbitration and conciliation act, Cap.A18 Laws Of The Federation of Nigeria 2004 equally provides in part 1, sections 1 to 36, part ii, section 37 to 42, part iii, sections 43 to 55 and part iv, sections 56 to 58 the methods of applying ADR.
The Federal High Court Act, Cap.F12, LFN 2004 in section 17 provides that “In any proceedings in the promote reconciliation among the parties thereto and encourage and facilitate the amicable settlement thereof”
By and large, the Nigerian court encourages litigants to resolve their disputes by adopting ADR options in resolving their disputes. The court may, with the co-operation and consent of the parties, refer the parties to ADR Centres of the court and the parties are expected to report back to the courts for adoption of agreed Terms of Settlement where ADR is successful or, where the ADR proceedings fail for trail.
The Civil Procedure Rules (CPR) provides for mandatory for pre-case alternative dispute resolution mechanisms. It is mandatory to attempt settlement before commencement of action by filling a process a pre-action protocol along with the originating processes. Cases are then screened by the relevant registry official and suitable qualified cases may be designed for amicable resolution and referred to the Lagos, Abuja, Kano, Delta, Akwa Ibom or Cross River Multi-Door Court House or appropriate ADR centres etc.
Factors challenging practice of ADR in Nigeria
The Nigerian Legal System has set the pace for the growth and promotion the various ADR mechanisms. This has been made visible through the establishment of Multi-Door Courthouse’s and ADR centres all over the country.
The Lagos (LMDC) was established in Lagos, Nigeria on the 11th of June, 2002.
The Abuja Multi-Door Courthouse (AMDC) was established in Abuja, Nigeria on the 13th of October, 2003. Since then, other Multi-Door Courthouses have been established in Kano, Akwa-Ibom, Delta, Cross River, Enugu, Ogun, Abia, and Ondo state. These Multi-Door Courthouses are used as alternative dispute resolution centres in compliance with the civil procedure rules that matters of contractual nature can be referred to them for adjuration for the overall interest of the justice delivery system in Nigeria.
In 2004, the Central Bank of Nigeria directed the merger and acquisition of eighty-nine banks to re-capitalize to the tune of N25 billion as against the previous N2 billion. The former Governor of the Central Bank of Nigeria, Prof. Charles Soludo, established the Merger & Acquisition Dispute Resolution Program (MADREP) to serve as an efficient legal framework to facilitate the system. The Merger & Acquisition Dispute Resolution Program (MADREP) was specifically designed to mitigate the delay, the high cost, and the divisive nature of litigation in the Mergers & Acquisition related dispute, hence, banks were required to commit to confidential and non-adversarial forms of dispute resolution through ADR.
On December 18, 2015, the National Industrial Court under the leadership of Hon. Justice B. A. Adejumo inaugurated the National Industrial Court of Nigeria (NICN)’s Alternative to Dispute Centre (ADR), Centre instrument & Rules 2015.
The most recent of all is the inauguration the Court of Appeal Mediation Centre in Abuja by the President of the Court of Appeal, Justice Zainab Bulkachwa, on June 8, 2018.
In spite of the establishment of these structures, there is little or no patronage of the ADR mechanisms in the settlement of dispute in our legal system. For all the benefit of ADR, the uptake is dependent on legal practitioners. Nigerian lawyers are typically obsessed with filing matters and going to court. For many businesses, the first point of call in the case of a dispute is lawyer, and litigation is more profitable than an outright settlement. Hence, there is a risk of reduced business from clients and lawyers inadvertently encourage clients to fight in court, as opposed to encouraging them to consider other forms of dispute resolution.
So far, the uptake is still hard to measure, Nigerian lawyers still generally think of arbitration as the first step in the litigation process that stops at the Supreme Court, rather than what it really should be; a final award to determine the relationship between parties. But as more companies, executives and judges continue to make way for ADR as a means of solving disputes, Nigerians can at least be grateful that in this regard we are making progress.
As of today we, have in existence, among others, the following arbitration bodies in Nigeria:
1. The Nigerian Branch of the Chartered institute of Arbitrators (UK);
2. The Chartered Institute of Arbitrators (Nigeria);
3. The Institute of Dispute Resolution, Ekpan in Delta State;
4. Negotiation and Management Group (NCMG); and
5. Abuja Arbitration Forum, etc.
Benefits of ADR to lawyers and the citizenry
The practice of litigation in Nigeria has been plagued with a bogged-down justice system, unsatisfactory determination of cases and a ruined relationship between the parties involved etc. these reasons and many more has made litigation an unpleasant experience for both the lawyer and his client. On the other hand, Alternative to Dispute Resolutions provide a means of dispute resolution which eradicates the shortfalls of litigation.
“The courts of this country should not be the places where the resolution of disputes begin, they should be the places where disputes end – after all means of resolving disputes have been considered and tried.” – Justice Sandra Day O’Cononor.
Some benefits of ADR include:
1. Access to justice for all
2. Reduction in case dockets of Judges
3. Speedy resolution of disputes
4. Reduction in party’s expenses and time
5. Harmonious co-existence
6. Accommodation and tolerance
7. Sustenance of business relationship
8. Restoration of pre-dispute relationships
9. Public satisfaction with the justice system
10. Creation of resolutions suited to parties needs
11. Increase in voluntary compliance with resolutions
12. Increase in foreign investment
The most important feature of ADR is that the disputes are often decided by the parties involved. In order for this to happen, there has to be an accord between the parties involved, this ensures a continued relationship between the parties even after the dispute has been resolved. It also saves time and cost for both the lawyer and parties. Acquiring a skill in any of the ADR processes avail a lawyer with not just an additional qualification, but also an alternative source of income.
It has been shown that organization where a preference of ADR has taken hold, fresh approaches to conflict tend to be resolved almost on their own. An example is the Toyota Reversal Arbitration Board which is a non binding mechanism to settle disagreements with its dealer. At Toyota’s U.S subsidiary, a Reversal Arbitration Board, set up to ease contention between the company and its dealers concerning allocation of cars and sales credits, has brought about a steady decline in the number of these court cases, from 178 cases in 1985 to 3 in 1992.
This certainly has saved them time, money and helped to preserve business relationships with their dealers. Chevron has also adopted this procedure of talking alternative dispute resolution as top priority. Companies that give ADR top priority are in fact reaping ADR’s predicted benefit; lower cost, expertise, quicker dispute resolutions, and outcomes that preserve and sometimes even improve business relationship.
In recent times, it has also been suggested that the ADR could be the only life line to resolving the rising tensions in the country, with specific reference the incessant farmers and herdsman clash in the middles belt of Nigeria.
According to Dr. Ben Odoh Uruchi: The government has to bridge the indigenes/settler differences. When the Fulani find themselves in farmer’s territory despite spending decades in the middle belt region, they are still regarded as settlers by the indigenes. These differences should be bridged through ADR, regular meetings, social gatherings, festivals and sporting events.
I do not agree less with above postulation, all that may be required to resolve the farmers and herdsmen clash in the middle belt may be a sitting at round table, in which the disputants will be allowed to adopted a suitable alternative to resolve their misunderstanding, hence, resolving the dispute in due time, maintaining cordial relations and obviating future and unnecessary disputes. A typical example is how the Niger Delta crises have been constantly resolved through the use of ADR processes.
Although there are problems with Alternative dispute resolution in terms of sanction, finality and the lack of precedence. In spite of all the attendant problems associated with the practice, ADR still remains veritable tool for dispute resolution. The practice is vibrant and it has received growing patronage in recent times. Its pros by far outweigh its cons.
If its advantages are properly harnessed, it will decongest the perpetually congested cause lists in our courtrooms, dispense justice more quickly, prevent acrimony and maintain long lasting business relationships that will fast track growth, development, commerce and confidence in Nigerian economy in the new world order.
. Akaa, a trainee at the Institute of Chartered Mediators and Conciliators, is the immediate past Secretary General of the Law Students Association of Nigeria, University of Abuja; Press Committee Chairman; Head of Lords, Faculty of Law, University of Abuja.
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