By: Prof. Olubayo Oluduro, PhD (Ghent), FCArb, and Akin Olawale Oluwadayisi,
Ph.D. (Ilorin)
Introduction:
ADR has grown to be a multi-disciplinary field. The actors in the field of ADR and Arbitration are lawyers and non-lawyers – professionals with expertise in various fields germane of arbitration, such as engineers, surveyors, architects, accountants, actuaries, anthropologists, psychologists, social workers, educationists, and so on. For the lawyers, they are trained as conflict resolvers. The irony is that we would hardly be needed if conflict did not exist. Conflict, whether about a past situation or a potential future situation, is the lawyer’s bread and butter. Clients come to lawyers to prevent and solve conflicts, to deal with problems, and to negotiate. Hence, it can safely be said that the art of conflict resolution is a major career that a legal practitioner and non- lawyers with a proactive and futuristic mind can specialize in and take as an additional career.
ADR and Arbitration as Additional Career for Professionals
ADR and Arbitration as an additional career implies taking it as an activity ancillary to the main or at least earlier or another-career outside of one professional filed. In other words, participation by business executives and other professionals in the field of ADR, and in particular, arbitration, is seen as crucial, due to their specialized knowledge and experience. While persons formally trained in law often make able arbitrators, especially for the position of neutral chairperson of arbitration tribunals, the bottom line is that legal training is not indispensable.
However, an arbitrator does not need to be a lawyer. Service as an arbitrator is generally a second career, which is either concurrent with or subsequent to other professional service, such as serving as a member of the judiciary, a member of the bar, as an attorney or an academic.
- First, there are law students who take an arbitration clinic or other ADR course and become passionate about becoming an arbitrator or any other ADR specialist.
- Second, there are judges who after retiring from the bench decide to become an arbitrator as a natural second career.
- Third, there are litigators, following his retirement from a long career as an advocate, decides to transit to a different, but related second career.
- Fourth, there are business executives who seek to deploy their negotiation and decision-making skills in another way.
- Fifth, there are academics who look for another focus for their research. And finally, there is everyone else such as transactional attorneys, expert witnesses and consultants.
Today, labour unions, corporate bodies, school associations, universities and government agencies all hire professionals on full- or part-time or contract basis with good knowledge, strong communication and dispute resolution skills to assist with a specific dispute. Retired Judges and other professionals who have retired also participate in providing ADR services.
More importantly, in appointing an arbitrator, under the Arbitration and Conciliation Act (ACA), the parties determine the procedure for appointment of their arbitrators and consider such other considerations as are likely to secure the appointment of an independent and impartial arbitrator. The Act does not provide that only lawyers should be appointed. What is most important is the independent and impartiality of the prospective arbitrator.
It is important to state that in complicated or technical cases, arbitrators may need to have experience in the subject that is being disputed, such as engineering, accounting, construction, etc. As a result of this, those thinking of a second career or looking for additional career may be well suited to this role. Technical or complex disputes can be more effectively settled when handled by those that have expertise and high level of experience necessary to make the best decisions than courts. In addition, since the arbitrators have some knowledge and experience in the subject matter of the dispute, the need for some of the expert testimony in the arbitrations may be obviated somewhat by the arbitrator’s own knowledge and expertise.
It is observed that Lawyers and other professionals who have chosen ADR and arbitrator as additional career have various opportunities, which include, but are not limited to, working as neutrals in court-connected ADR Centres; working for an ADR provider organization in a support capacity; working as an associate at a law firm that specializes in ADR and arbitration; working for a union; and working for a company in the human resources or employee relations department, engage in private practice as an ADR specialist and arbitrator, among others. In addition to providing these services for a fee, the arbitrator will also be achieving personal and career satisfactions from the exercise of his conflict resolution skills. Such an individual will be having the best of both worlds and also meeting his financial goals.
With the development and growth of domestic and international ADR and coupled with the setting up of Multi-door courthouses by States in Nigeria, employment opportunities will continue to abound both in conflict resolution jobs and jobs seeking conflict resolution skills to the advantage of conflict resolution specialists, either as full time or additional career.
There will be high demand for ADR services in family and divorce conflicts, and perhaps in court-ordered Mediation/Arbitration generally.
Recently, the U.S. Bureau of Labour Statistics projected the growth rate in the conflict resolution field for the period 2008-2018-2028, noting that: Employment of Arbitrators,
Mediators, and Conciliators is projected to grow 8 percent from 2018 to 2028, faster than the average for all occupations. This projected growth is driven by the fact that Mediations and Arbitrations are typically faster and less costly than litigation and may be required in certain types of legal cases. This means that many individuals and businesses will try to avoid litigation; while demand will also continue to increase for ADR and arbitration processes.
This will mean additional income for professionals who endeavored to make ADR and Arbitration as an additional career, thereby making a living from it. While there is a dearth of statistics for the growth rate in the conflict resolution field in Nigeria. Encouraging lawyers and professionals in other fields to take ADR and arbitration as additional career has the additional advantage of increasing the numbers of trained ADR practitioners thus helping to overcome the challenge in the availability and experience of ADR practitioners currently experienced in Africa. Making ADR and Arbitration an additional career would help remove the ignorance of the people regarding arbitration and other ADR mechanisms, encourage the use of arbitration by the general public and help build the peoples’ confidence in the mechanism. This would not only increase the country’s conflict mitigation and prevention capacity but will also reduce the number of cases that burden court dockets.
Furthermore, ADR as an additional career for professionals would help to enhance technical arbitration in Nigeria. It is a fact that ADR is rapidly expanding into all sectors of the economy, including educational and medical settings, as well as commercial, engineering and construction disputes; and some of these disputes are complex in nature and need expert facilitators (who may be currently practicing professionals with the necessary experience, or a retired professional in the industry) to settle disputes in these areas. Non-lawyers are best suited to handle technical arbitrations based on their expertise in the subject matter in issue, most of which are often complex and specialized in nature.
Conclusion
Conflict is inevitable in any society; it is human and ubiquitous. This paper succinctly addresses the many ways in which arbitration practice can be seen as a formidable and rewarding profession to hold and to practice. While it is true that arbitration and ADR is a growing field in Nigeria, and there exist a massive amount of ADR and arbitration work going on within organizations and corporations, there are concerns of low patronage of Nigerian arbitrators and ADR providers as large percentages of the disputes are taking outside the country for settlement. This has been attributed to crisis of confidence from the Multinational Corporations (MNCs) operating and carrying on their businesses in Nigeria who are reluctant to engage the services of Nigerian arbitrators, but prefer to take their disputes outside Nigeria to be resolved by foreign arbitrators.
On this note, practicing lawyers and professionals from other fields do not need to wait until after retirement before taking the decision to take ADR and arbitration as an additional career. The steps must be taken now to get the skill necessary to become an accomplished arbitrator or other ADR specialist from respected Institutes such as the Nigerian Institute of Chartered Arbitrator.
References:
1. Carrie J. Menkel-Meadow, et al, Dispute Resolution: Beyond the Adversarial Model (Aspen Publishers, New York, 2005) p.59
2. John Flood and Andrew Caiger, Lawyers and Arbitration: The Juridification of Construction Disputes, 56(1993) The Modern Law Review, 412-440 at 436.
3. E.J. Meason, Alison G. Smith, Non-Lawyers in International Commercial Arbitration: Gathering Splinters on the Bench, 12 (1991) Nw. J. Int'l L. & Bus. 24-47 at 33.
4. Lucy Greenwood & C. Mark Baker, Getting a Better Balance on International Arbitration Tribunals, 28 (2012) Arbitration International, No. 4, 653-667 at 659.
5. Deborah Masucci, ‘So you want to be a Mediator or Arbitrator: A Guide to Starting a New ADR Practice and Giving your Existing Practice a Boost- for New York State Lawyers,’ (The New York State Bar Association Dispute Resolution Section, New York, 2019) p.3
6. Janice Mucalov, ‘Career Alternatives for Lawyers, Canadian Bar Association”, (1 September, 2014) <https://www.cba.org/Publications-Resources/CBA-Practice-Link/Partnership-Toolkit/Is-this-for-me/Career-Alternatives-for-Lawyers> accessed 15 May 2020.
7. Bureau of Labor Statistics, ‘Occupational Outlook Handbook, Arbitrators, Mediators and Conciliators’ <https://www.bls.gov/ooh/legal/arbitrators-mediators-and-conciliators.htm?view_full,> accessed 08 April 2020.
