By: Ojo, Olugbenga Samuel ACArb
Arbitration; a concept which is gaining earthshaking relevance and applicability in a world of conflict near chaos and shambles has not secured much attention needed in the management of Peace and conflict resolution. In the arrangement of a society, peace as defined as a state of mind in concourse with serenity, state of harmony, tranquility, concord and a balance of equilibrium of powers2(Kejiani-Clark & Ani, 2009), appeared to be the ultimate goal. Various laws and norms have been established by governments, groups and traditional institutions for the purpose of promoting peace. In Nigeria’s constitution, for example, there are enabling laws for settling of disputes3. Different communities, through customs and social values, engage in settlement of disputes to ensure peace. Besides that, there are associations, clubs and organizations in society that engage in conflict resolution.
However, it has been observed that conflict is part of the human state of affairs and it occurs almost every time. While the number of conflict cases abound, the court of law could hardly cope with the volumes of the cases, and was unable to handle several cases within the time frame expected by the parties involved. It is worrisome therefore that despite the availability of alternative means of conflict resolution under Arbitration mechanism in most countries, including Nigeria, many aggrieved persons seem not to be willing or interested in turning towards Alternative Disputes Resolution (ADR) mechanism.
According to (Edlye, 2009) the social conflict perspective sees society as existing in continuous struggle or friction between different groups. Thus, “the conflict perspective assumes that social behaviour is best understood in terms of conflict or tension between competing groups. He explained that social conflict perse refers to conflict which arises in the process of interaction between individuals and groups. In other words, such conflict occurs within the context of a given socio-cultural milieu. Thus, both the causes and possible solutions to such conflict lie within the normative structure of a given society. 26
Socio-conflict theories are explanations regarding the nature, structure and dynamics of social conflict offered by scholars over time; such explanations seek to explain and interpret social conflict in human society. Social conflict theories are equally explanations or theoretical viewpoints that put forward the notion that conflict is a fundamental part of social life27 (Edlyne, 2009). In addition, the social conflict theories are theoretical viewpoints anchored on the inevitability of change in human society. Even though these theories differ on the nature change envisaged and processes leading to such change, they are all agreed on the assumption that change is the only route to development or progress in human society. Marxism is one of the social conflicts. Karl Marx is the proponent of social conflict that anchored class struggle as the source of conflict in social settings.
CHALLENGES OF ARBITRATION IN THE MANAGEMENT OF PEACE AND CONFLICT
- Arbitration expenditure may be high: Arbitration may not necessarily be a cost saving alternative to resolving disputes than litigation. First, arbitrator’s fees and expenses may be high especially if fees are assessed in reference to the amount in dispute. Fees will also be paid on other facilities needed to facilitate a smooth arbitral process which adds to the cost of arbitration. These myriad of fees can make arbitration really exorbitant.
2. Inability to join Parties: There are millions of different contracts from which disputes may arise and parties resolve to arbitration. Issues arising may range from simple to complex ones. A construction contract for example can be very knotty when disputes arise where several aspects of the contract have different parties executing them. In such a situation special provisions need to be inserted in the arbitration clause to resolve such disputes, otherwise it may be impossible for the arbitral tribunal to consolidate the disputes since it has no statutory power to do so.
3. Independence of Awards: Decisions reached in arbitration proceedings are confidential which makes it difficult to have precedents to follow when there are similar facts and issues in dispute to which arbitrators can refer. Since the system of precedents is not applicable in arbitration, each award stands on its own.
4. Limited Powers of Arbitrators: Arbitrators are limited in the powers they can exercise in the course of resolving disputes between parties. Such powers as vested in the courts to compel attendance of a party or witness cannot be exercised by an arbitral tribunal. Where it is necessary to enforce an award immediately, the arbitration tribunal cannot enforce it except after registration in court.
CONCLUSION
Alternative Dispute Resolution (ADR) is a private method for settlement of disputes. It is less formal, less expensive and also saves time. The agreement of the parties to submit to arbitration is vital to the success of the arbitration proceeding without which, the whole process would be null and void. Alternative dispute resolution can save financial and emotional costs. Not only is litigation expensive and time-consuming, but it can be very stressful. You may feel that an important part of your life is on hold while you are waiting for a trial date, wondering and worrying about the outcome. If you have to deal with each other in the future, using an adversary process like litigation risks polarizing and embittering your relationship. The emotional wounds from fighting may never heal, and these wounds can complicate your future dealings and make it impossible for you to have a satisfactory relationship.
References
Edlyne, E.A. (2009). Theories of Social conflict. In M. Ikejiani (2009), eds.), Peace Studies and Conflict Resolution in Nigeria. A Reader. p.36-51. Ibadan: spectrum Books Limited.
Merriam-Webster, Inc; (2016). The Merriam – Webster Dictionary, USA: Merriam Webster, Incorporated.
Olagunju, O. (2007). The Seven Secrets of Effective Conflict Resolution. ADR PreCertificate Course, Negotiation & Conflict Management Group and Aina, Blankson & Co.
Orojo, J.O. and Ajomo, M.A. (1999). Law and Practice of Arbitration and Conciliation in Nigeria. Lagos: Mbeyi and Associates.
Peters, D. (2006) . Arbitration and conciliation Act Companion. Lagos: Dee-Sage Nigeria Limited.
Magna Carta: an Introduction Article by: Claire Breay, Julian Harrison (2014).
