METHODS OF ALTERNATIVE DISPUTES RESOLUTION

A. D. R simply means Alternative Dispute Resolution. It is the method by which parties to a dispute reach an amicable resolution of the dispute without the need to resort to Court or litigation. ADR could be Court connected or non-Court connected. It is the former when where the matter was already in Court and the parties agreed on an out of Court settlement while it is the latter where the parties mutually reach an acceptable agreement without recourse to Court.

TYPES OF A. D. R

1.      Negotiation;

2.      Mediation;

3.      Conciliation

4.      Litigation;

5.      Early Neutral Evaluation; and

6.      Arbitration.

Negotiation

This entails the parties discussing and agreeing to terms or reaching mutually acceptable resolution without the aid or intervention of a 3^rd party. This method involves discussions, concessions, compromises, communications, persuasion, and bargaining. In essence, it involves giving something up in order to get something in return

There are two types of negotiation viz. competitive or positional strategy (win/lose option) and co-operative or problem solving strategy (win/win approach). The former is a hostile negotiation in which the parties have set their mindset not to change their stand or compromise while the latter enables the parties to focus on their interest and pick from several options that will resolve the matter amicably.

There are four (4) stages of negotiation namely Opening; Bargaining; Closing; and Execution.

There are three (3) styles of negotiation namely Soft; Hard; and Firm style.

The sources of Power in negotiation are Competition; Legitimacy or authority; Precedent; Information; Investment; and Time.

The negotiation tactics and tricks are Extreme initial position; Deadline; Threats; Promise; Emotions; Nibbles; Psychology play; Lack of authority or limited authority; and Numerical strength. However, it is advised that before you go into negotiation, prepare adequately by determining the Best Alternative To Negotiated Agreement (BATNA) as well as the Worst Alternative To Negotiated Agreement (WATNA).

Mediation

This is a non-binding dispute resolution mechanism involving a neutral and impartial third (3^rd) party who tries to help the disputing parties reach a mutually agreeable solution. The 3^rd party known as the mediator is impartial and does not take decision for the parties rather he helps and assists in identifying the issues and interests that need to be resolved. An agreement reached by the parties during mediation is enforceable if the terms of settlement are reduced into writing by the parties and witnessed by their counsel. The term of settlement will thereafter be filed in court and made the judgment of the court in form of a consent judgment.

In Nigeria, the legal instruments regulating mediation is the Arbitration and Conciliation Act and the various High Court Laws.

Conciliation

This is the process of settling a dispute in an agreeable manner. It is a method by which a neutral third (3^rd) party meets with the parties to a dispute, and explores how the dispute might be resolved. However, he may deliver his opinion as to the merit of the dispute in necessary cases.

This method sometimes serve as an umbrella term that covers all mediation and facilitates dispute resolution processes. The UNCITRAL Model Law on International Conciliation explains that conciliation is where parties request a third (3^rd) party known as the conciliator, to assist them in their attempt to reach an amicable settlement of dispute arising out of or relating to a contractual or other legal relationship. The conciliator is a neutral person who decides and awards nothing and he is not bound to observe the strict rules of natural justice. A conciliator assist parties by establishing communication, dealing with strong emotion, clarifying misperceptions, exploring potential solutions and bringing about a negotiated settlement.

There is a slim difference between mediation and conciliation. In conciliation, the third (3^rd) party has expert knowledge of the dispute he is to conciliate but they are used interchangeably in some jurisdictions.

Litigation

This is the process by which disputes between parties are resolved by the duly established courts. This does not require prior agreement between the parties. Litigation is initiated when one party files a law suit against another. Litigation is the traditional form of dispute resolution, and the main point of litigation is that the courts are concerned primarily with applying public policy and adhering strictly to the law of the land, down to the finest detail.

Early Neutral Evaluation

This is the method where parties submit a summary of their argument on the issue in dispute to a neutral third (3^rd) party who is usually a lawyer or a retired judge who is experienced in the area in dispute. He evaluates the case of both parties and gives a candid opinion on the relative strength and weakness of their respective cases. His opinion is not binding, but it may lead to an amicable resolution of the dispute. All documents, records and statements made in the process are confidential and cannot be admissible as evidence.

Arbitration

This was originally included as part of ADR, but due to its adjudicatory nature it has shifted away from ADR. It is a method involving one or more neutral third parties who are usually agreed upon by the disputing parties and their decision is final. The decision arrived at by the arbitrator(s) is called an award, and same is enforceable like a Court’s judgment. The principal legislation dealing with arbitration in Nigeria is Arbitrators and Conciliation Act, Cap. A18, LFN 2004.

The agreement to arbitrate must be in writing and signed, and the agreement is irrevocable except by agreement of the parties or by leave of court.

Arbitration can be of two types:

a)      Arbitral clause in a contract which refers future disputes to arbitration or a submission agreement that refers existing disputes to arbitration; and

b)      It can also be ad hoc or institutional administered by an arbitral institution like the International Chamber of Commerce (ICC) or London Court of International Arbitration (LCIA)

Where there is an arbitration agreement and one of the parties commences action in court, the other party can apply for stay of proceedings, before delivering any pleadings or taking any other steps in the proceedings under section 4 and 5 of LFN 2004.

ADVANTAGES OF A. D. R

·         It is cheaper;

·         There is privacy;

·         It promotes reconciliation;

·         It saves time and cost; and

·         It encourages friendliness.

ADVANTAGES/DISADVANTAGES OF ONE METHOD OF DISPUTES RESOLUTION OVER THE OTHER

1.    Mediation is much less costly than litigation

2.    In mediation, parties cannot go on appeal while in litigation they can

3.    In mediation, mediators are not paid while in arbitration, arbitrators are paid.

4.    In mediation, the neutral third party can only suggest a dispute while in arbitration the decision of the neutral third party is binding.

5.    Mediator does not have expert knowledge while conciliator has expert knowledge of the dispute in issue.

6.    A mediator only makes procedural suggestion on how parties can reach an agreement while a conciliator establishes communication between parties and brings about negotiation settlement.

7.    Mediation has the advantage of a neutral 3^rd party while negotiation does not.

8.    Mediation is enforceable while negotiation is not.

9.    Mediation makes use of a neutral 3^rd party called a mediator while early neutral evaluation makes use of a judge or lawyer.

10.  Litigation is oral while arbitration is either oral, document or both

HIGH COURT RULES WITH REGARD TO ADVISING AN ADR

Order 25 of the High Court Civil Procedure Rules of Lagos State makes provision for the promotion of amicable settlement of cases or adoption of alternative dispute resolution.

Order 17 Rule 1 of the High Court of the FCT, Abuja Civil Procedure Rules 2004 states that a Court or Judge, with the consent of the parties, may encourage settlement of any matter(s) before it, by either – (a) Arbitration; (b)Conciliation; (c) Mediation; or (d) any lawfully recognized method of dispute resolution.

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