CHAPTER ONE

BACKGROUND TO STUDY

INTRODUCTION

Lack of prompt and efficient running justice delivery machinery in the Nigerian courts system is often due to frivolous, pointless and frequent postponements and/or adjournments, of cases or disputes, causing delays in judicial/legal proceedings. This has resulted in crippling effects on the prompt and effective administration and delivery of justice in Nigeria. Legal practitioners in Nigeria are not without fault in the contribution to the apparent mess our judicial system has fallen prey to, as a result of varying contributory factors all working against the systems healthy existence.

The Majority legal practitioners have one time or the other in practice, employed different legal manoeuvres or strategies with the aim of frustrating or causing delays one way or the other, especially in situations where they find they are ill prepared for the particular case, they realise that to continue seamlessly would birth a judgement not favourable to their party/cause. The delays occasioned by the behaviour and practices of lawyers in the country, happens to be one of the varying causes of congestions and delays experienced in our courts today. The dearth of competent and efficient hands in our legal system at the different levels, (from the judge, to the janitor) has also contributed to the present state of decay in the system. The Participants cum victims of the criminal justice system (CJS) appear to be the obvious or noticeable casualties largely affected by the congestion experienced in our courts today, with the flaws there indirectly impinging, impacting and determining, with far reaching effects, the lives, loves and destinies of those concerned; directly or indirectly. Suggestions made by a plethora of experts, observers and ‘friends of the courts’ abound on ways to salvage this present and lingering state of affairs.

The considered embrace and implementation of Alternative Dispute Resolution Processes with its characteristic feature of celerity, its operation and acceptance; a success in predominantly commercial aspects and issues in Law now popular in civil/commercial cases/disputes, has thus triggered a contemplation and proposal in this essay, on the application of ADR processes as a possible panacea to the overwhelming situation of bottlenecks and overcrowding in our court rooms.

It is indeed submitted that the introduction and application though novel, of these processes would not be at a total variance with the law and issues of justice (prosecution, guilt or innocence, sentencing etc.), all integral to criminal justice but will pursue the quality of promptness currently deficient in our courts and impeding justice thus giving strength unfortunately, to the maxim though trite; ‘’justice delayed is justice denied.’’

Alternative Dispute Resolution (ADR)

Alternative dispute resolution (ADR) is a non-adversarial way of resolving disputes that is being progressively more employed in the public and private sectors, especially in developed countries. ADR helps parties resolve their differences without resorting to a more confrontational adjudicative process. It looks at needs, interests, and solutions, and can promote healing. It is voluntary, timely, confidential, and based on mutual agreement. Unlike the conventional courts, it is designed to yield solutions that are adapted to the particular circumstances of individual cases, as it is about solving problems rather than imposing solutions through an adjudicative process.[1]Thus, ADR and its role in the socio economic or political life of nations must be acquired by every maturing or seasoned/ veteran lawyer or practitioner in varied fields of proficiency.[2]This solely for the reality that disputes are a fact of life of which cannot be ignored in any sphere. Therefore acquiring this requisite expertise is desirable, resulting in positive and strategic rewards for the legal practitioner.

Alternative Dispute Resolution. (ADR): Some Definitions.

Alternative Dispute Resolution may be defined as a range of dispute resolution processes or mechanisms designed and available outside of, but supplementary to litigation.[3] The Black’s Law Dictionary [4]defines alternative dispute resolution thus: ‘’a procedure for settling a dispute by means other than litigation, such as arbitration or mediation. ’’ Another definition has said of ADR, to be ’’….range of procedures that serve as alternative to litigation through the courts for the resolution of disputes, generally involving the intercession and assistance of a neutral impartial third party. In some definitions and more commonly, it excludes not only litigation, but all forms of adjudication.’’[5]Stephen J. Ware[6] has defined ADR to be everything but litigation, because litigation as a matter of law is the default process of dispute resolution. A final addition to the above definitions would be incomplete without the input of Professors Olakunle Orojo and Ayodele Ajomo, two ‘leading lights’ on Arbitration in Nigeria: ‘’….ADR is generally used to describe the methods and procedures used to resolve disputes either as

alternatives to the traditional disputes resolution mechanism of the court or in some cases as supplementary to such mechanism.’’[7]

THE Alternative Dispute Resolution Processes.

The varieties or array of these processes include Negotiation, Mediation, Arbitration, Neutral Evaluation, as well as various hybrids such as Med-Arb and Lit-med.[8]Mediation however, has been agreed upon to be the most traditionally or commonly used, being adjudged as easier and cheaper or the most manifest of these mechanisms, than arbitration, which is although, most popular and universally known. Below are brief definitions or descriptions on the concepts aforementioned:

Arbitration

Arbitration may be defined as a simplified version of a trial involving no discovery and simplified rules of evidence. The choice of neutral/arbitrator is that of the parties and the decision (award) of the neutral may be binding or non-binding depending on the prior election of the parties. In arbitration, the parties relinquish their decision-making right to the neutral who makes a decision for them. By pre-agreement, the neutral’s decision is either binding or nonbinding. If binding, the neutral’s decision is final and the winning party may enforce it against the losing party. If nonbinding, the neutral’s decision is advisory in aid of settlement.[9]

Mediation

Mediation, the most commonly utilized of all ADR processes, may be defined as ‘a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference with the parties in ultimate control of the decision to settle and the terms of resolution’ Simply put, mediation is negotiation assisted by a third party. If the disputants are unable to resolve their disputes by negotiation, a third party that is usually referred to as Mediator, Conciliator or Facilitator, may be called upon to help them. The mediator’s sole function is not to decide the issues or determine right or wrong, but to help the disputants resolve their conflict consensually. This is why mediation is often called “turbocharged negotiation” as the primary function of the mediator is to help facilitate negotiations among the parties.

HYBRID PROCESSES [10]

Alternative Dispute Resolution is no longer seen as being valuable except where it can prove to also be Effective Dispute Resolution. The dynamics of a dispute might be such that in order to be effectual, a commingling of ADR processes may be utilised. Examples of hybrid processes include: Lit med and Med-arb.

Lit- Med

Lit-Med is the combination of litigation and mediation as a single process. Parties may agree that in the eventuality that a matter might be part resolved through mediation and issues not resolved would be referred to litigation. Matters of constitutional law and interpretation may also be referred to litigation.

Med-Arb

Med-Arb as the name suggests, is a process in which Mediation is followed by Arbitration where Mediation fails to resolve a dispute or parts of it. This makes possible achieving the best of both worlds. This process gives the parties the opportunity to use mediation to reach a settlement, and then to rely on a decision by the arbitrator on issues on which no agreement has been reached. This process encourages parties to create their own best settlement under the threat of having one imposed by an arbitrator.

THE DISPUTE RESOLUTION SPECTRUM[11]

The Dispute Resolution Spectrum can be viewed graphically as extending from the least formal process on the top of the chart; pure negotiation, to the most formal process on the bottom; litigation. Pure negotiation, a process that ought to be familiar to all advocates, is the only process in the spectrum in which the parties and counsel engage without the assistance of a neutral. Many times, however, it serves as an ancillary dispute resolution mechanism to other processes in the spectrum. In the next process, conciliation, the neutral’s goal is to assist in reducing tensions, clarifying issues, and getting the parties to communicate. In essence, it is the process of “getting the parties to the table” and inducing their active involvement in solving their problem. Moving down the chart, facilitation is the process in which a neutral functions as a process expert to facilitate communication and to help design the process structure for resolving the dispute. Ordinarily, a facilitator deals only with procedures and does not become involved in the substance of the dispute.

OBJECTIVES OF THE STUDY

Lots of controversies and series of opinions and ideas have accompanied the formation, reasons and necessity for a ADR. Many have expressed opinions for the necessity of alternative means of resolving conflicts with its statutory flavour while to some people, it is basically a waste of resources to leave the matters of the court to indivividuals to hande. Therefore, the effort and major objectives of this study will be to examine all the hullabaloos surrounding this means of resolving conflicts. The study will examine therole, limitations and reasons why people engage in alternate dispute resolution. At the end of the exercise, a standing form of model law will be profound by this study based on researcher‟s findings as regards alternate dispute resolution in Nigeria.

SCOPE OF THE STUDY

This study is essentially based on alternate dispute resolution in Nigeria. Emphasis will also be placed on concept of alternate dispute resolution, limitations to alternate dispute resolution and its validity and objective.

METHODOLOGY

The methods of research to be employed are basically analytical and critical, by the use of primary and secondary source of law. The primary sources includes statutory provisions, judicial provisions, textbooks and journals.

Secondary sources like opinions of legal writers, essays, seminar lectures and materials from internet are also employed. The sources are essentially in-exhaustive but the foretasted were the means through which the bulk of information was garnered. The Research findings will be further scrutinized by ascertaining or negating their suitability to the current terrain. More importantly, empirical findings were made through an update of events in the globe.

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