Introduction
Mediation and Arbitration are Alternative Dispute Resolution Mechanisms, each with its different method of administration. Right from time immemorial, conflict has always been a part of human existence, conflict to some extent is not the problem but means to conflict resolution, management, and preservation of peace and security, hence the need for an efficient dispute resolution mechanism. Just as conflict has been a part of human existence, the alternative dispute resolution mechanism, although informal in practice, has now become a global and formal phenomenon for dispute resolution. The United Nations Charter in Article 33 posits that conflict management as well as conflict resolution must involve alternative dispute resolution mechanisms. Parties to any dispute must first of all seek a solution by negotiation, enquiry, arbitration, conciliation, judicial settlement or resort to regional agencies or other peaceful means of their choice (UN Charter 1945).
These ADR methods/mechanisms are processes designed to assist parties in dispute resolution as opposed to the traditional court adjudication, they don’t supplant court adjudication but rather, supplement it.
Over time, the process and complexity of court litigation have become more time-consuming, expensive and cumbersome leading to delays in justice delivery. On the other hand, the ever-increasing number of cases in courts is quite alarming. There may be claims involving small sums, which may not be worth the cost of litigation. All these issues and more, have led to the development of alternative methods of resolving disputes otherwise referred to as ADR (Barret 2019)[1]. Although these methods are often thought of as new ways of resolving disputes, ADR processes are not new in Africa, our traditional society settled disputes by referring to the village and traditional chiefs and elders and other respected members of the society it is deep-rooted in human history, and it has long played a crucial role in cultures across the globe. In the case of Okpururu v. Okpokam, Oguntade JCA (as he then was) observed that; ‘… in the pre-colonial times and before the advent of the regular courts, our people (Nigerians) certainly had a simple and inexpensive way of adjudicating over dispute between them. They referred to the elders or to a body set up for that purpose…’[2]
In the pre-colonial Yoruba city, disputes were settled by the mogaji, the bale, the lineage heads, and the elderly heads men of the district. The elders have an arsenal of techniques for dispute resolution, namely using proverbs, persuasions, subtle blackmails, precedents, and even magic. The elders have adjudicatory powers to settle disputes and these powers are cultural and can also threaten disputants with social ex-communication or emotional blackmail.[3]. Lord Woolf in his Interim Report[4], highlights the global status of ADR and how it has been an indispensable tool in dispute resolution. Litigation might not always be the best option hence the need for more awareness of ADR (H. Brooke (2008),)[5].
Alternative Dispute Resolution is fully recognized in the Nigerian Legal System, the 1999 Constitution of the Federal Republic of Nigeria (as amended) in section 19(d) provides for the settlement of disputes by Arbitration, Mediation, Conciliation, Negotiation and Adjudication. The Arbitration and Mediation Act 2023 established a legal framework for arbitration and mediation settlement in Nigeria. The High Court Rules of various states referred cases to ADR, Order 19 of the Federal High Court (Civil procedure) Rules of Nigeria provides for supportive court interventions in arbitral proceedings. Rule 15(3)(d) of the Rules of Professional Conduct for Legal Practitioners mandates Lawyers to attempt an alternative dispute resolution before bringing any matter before the court for a hearing (A.F. Adenekan 2020)[6].
ADR has received global status in almost all parts of the world, although, it is not all types of alternative dispute mechanisms that have received recognition. For instance, in the US, the ADR became formally recognized after independence with the case between the Dutch and British regarding patents and trademarks. Mediation is more popular in America due to its nature and procedural easiness in dispute resolution. In the same vein, we see arbitration as an indispensable mechanism permeating the spaces of Russia where the country adopted arbitration as a form of ADR. In Russia, arbitration is mainly used in dealing with disputes arising mainly from commercial and business matters. Mediation and conciliation are also used alongside arbitration in settling disputes revolving around an individual’s interests and rights.
In Australia, the majority of the population sees litigation as inefficient for want of cost and time-bound. And as a result of that, many issues on commercials are resolved using mediation and negotiation. In Australia, mediation is more used than any form of ADR reason being that it allows parties to agree to a settlement easily and preserve lasting relationships.
The case is entirely different with the People’s Republic of China. It has modified the application of ADR and looks different from what is obtainable in other countries in the West. It merged the ADR in their judicial system allowing the two processes to work together simultaneously. ADR in China is duly conducted by the same court or Tribunal handling a matter during the hearing session such that a judge handling a matter in court can decide to switch from the litigation process to the settlement process. This process is peculiar to only China’s legal system. ADR was introduced in Tanzania by the Tanzania Civil Procedure Act Code (cap 33RE2002) and provides that the main alternative dispute resolution mechanism includes: arbitration which is commonly used in commercial disputes (Arbitration Act Ca 15 RE 2002). Apart from arbitration; mediation and reconciliation are also used prominently in Tanzania, especially in disputes related to individual interests. The country has made it compulsory for all legal practitioners to take a course on ADR to enhance their knowledge.
In Kenya, the constitution of Kenya (2010) has made ADR part of their legal system. It recognizes the use of Arbitration, mediation, conciliation and traditional mechanisms to resolve disputes or conflict. The constitution in Article 159, provides that in exercising judicial authority, an alternative dispute resolution mechanism shall be promoted.
The significance of ADR cannot be overemphasized as it provides an avenue to resolve disputes creatively and effectively by finding the technique that is most appropriate to the circumstances.
This study focuses on the ADR as a dispute settlement mechanism with emphasis on Mediation and Arbitration while highlighting factors involved in choosing the right ADR mechanism for your dispute.
Choosing the Right ADR Mechanism for your Dispute:
There are several methods of dispute resolution, these include mediation, conciliation and negotiation etc. and a good way to choose the right ADR mechanism for your dispute is to consider the individual characteristics that differentiate the processes, the fundamental principles of the processes and this depends on a number of factors, such as the nature of the dispute, the relationship between the parties, the desired outcome, cost and time constraints. For instance, the role confidentiality plays varies from process to process. For instance, in terms of confidentiality, most ADR processes have the confidentiality feature with mediation ranking the highest in terms of confidentiality while arbitration and early neutral evaluation are not generally considered to be confidential processes. Also, there’s a need for a well-learned, skilled and experienced neutral third party as officiating personnel is needed to anchor the resolution.
Below is an outline of the distinct features of each of the Alternative Dispute resolution mechanisms which serve as a guide to choosing the ADR mechanism
Mediation
The nature, principles and practice of mediation have given it a global preference as it has shown an average success rate of 70-80% in the Western world while in Africa it is even higher due to its predominance prior to Western influence. Before the advent of colonialism, the early Africans had always had an established method of conflict management with village elders and family heads resolving disputes and decisions which were binding on the feuding parties.
It is worthy of note that of all the ADR mechanisms, Mediation is the most widely used, especially being that it is most neutral, flexible, independent and effective. The Centre for Effective Dispute Resolution[7] gave an accepted definition of mediation as:
‘’…a flexible process conducted confidentially in which a neutral person assists the 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…’’
Therefore, mediation could be described as a process whereby neutral third-party disputants resolve their dispute wherein the disputing parties make the final decision themselves. It allows for more direct participation of those affected by the decision. It is a process that those involved can control. It is a private and confidential way of resolving disputes as the proceeding is conducted in private and the mediator will not divulge the outcome to anyone outside the mediation without the consent of those involved. Private meetings between the mediator and each party involved separately during mediation are confidential.
Despite its shortcomings, mediation can be a lot cheaper and quicker than a court hearing and in the event of a successful mediation, court time is saved too.
The sui generis nature of mediation makes it different from other forms of dispute resolution mechanisms, such that it emphasizes parties’ freedom in exploring and identifying a resolution that is mutual without involving a third party to proffer a solution. After a resolution has been attained by parties, they usually sign a settlement agreement that can later be enforced. Another quality of mediation is that it enhances permanent dispute resolution (Ogwora, E.T,2023) [8].
Mediation is non-adversarial, collaborative with more focus on cooperation rather than the win-lose dynamic seen in litigation/arbitration. It seeks to preserve relationships. In mediation, the focus is on interests, not rights. It emphasizes understanding the interests behind each party’s position rather than focusing solely on legal rights (Okeya I.O.2020)[9]. Despite its shortcomings, mediation has become a viable option in many systems. Where it is included in the contractual agreement that any dispute must be resolved through mediation, then it must be affected as a matter of policy. In England and Wales, it is a policy that parties in commercial litigation must mediate even if mediation is not included in their contract agreement (Ogwora, E.T,2023)[10]. UN has also adopted legislation on mediation procedures under the International Commercial Mediation (UN,2002)
Features of Mediation
In mediation, neutrality is a quality a mediator must possess to set aside his personal opinion, on the matter before him. It shows the absence of bias, prejudice or preference for either of the parties.
Neutrality simply means not taking sides, the act of not supporting or opposing.
According to Maiese[11], neutrality is being open-minded, not personally connected to the parties yet mutually acceptable to both parties where there is an unbiased relationship between the mediator and the parties. It is the mediator’s duty to facilitate the development of the conversation between the parties to enable them reach a mutually acceptable outcome (Bailey,2014)[12]. The mediator must avoid at all costs the zeal to offer advice or counsel to the parties. Mediators are ‘neutrals’ whose role does not determine the outcome of a dispute but is largely limited to facilitating the process and helping disputants arrive at a settlement. A mediator normally is a moral agent. While discharging his duties, he must ensure he intends that the good should prevail. The emphasis should be, not the perceived good but the real good. Any settlement by the mediator should be that which serves the interests and the rights of the parties.
Before commencing the process, the mediator must ensure to explain these neutrality features and process to the disputants to give them understanding and immerse themselves in the process. The mediator must use their skills and techniques as a mediator to support and empower the parties to reach a mutually acceptable outcome thereby promoting self-determination of disputants. Neutrality as a principle demands that the mediator has knowledge and theory of the code of ethics throughout the process of exploring alternatives for dispute resolution. In mediation, confidentiality is central, while it is not typically expected in arbitration or conciliation. Although the final decision in mediation is tentative, it could be confidential or not confidential.
Nature of Dispute: Cases appropriate for mediation are cases where both parties are open to negotiation and wish to preserve their relationship e.g. Disputes in commercial transactions, personal injury, divorce, workers compensation, business, family or community disputes.
Elements: party autonomy, impartiality, voluntariness and confidentiality are all distinct features of Mediation practice.
Procedure: A neutral mediator helps the parties communicate and reach a mutually agreeable solution but does not impose a decision. There are three main phases; pre-mediation (entails agreeing to mediate), mediation (direct/caucus meeting) and post-mediation (complying with the outcome).
Advantages: voluntary, flexible, self-determination, faster and less expensive. Confidential and allows for creative solutions.
Desired Outcome: appropriate if you want a collaborative process and are looking to resolve the dispute privately.
ARBITRATION
The Court has always been a dumping ground for cases making it too congested and marked by incessant delays. ADR was introduced to reduce the workload of the court and also help parties explore other settlement methods outside the court. In arbitration, there are panel of arbitrators or a sole arbitrator who functions like a judge. The arbitrator’s role is adjudicative which gives them authority to impose an award/solution. The arbitrator makes a final decision after hearing the arguments and evidence from both sides, much like a judge would, evaluating evidence and making a decision that the parties must follow which is binding and enforceable.
Arbitration is the oldest form of dispute resolution and has been on the rise in recent times because of its procedural outcome as well as flexibility of the process, such as the ability to choose arbitrators, seat of arbitration, and procedural rules, among others etc. In Nigeria, the Arbitration is governed by the Arbitration and Mediation Act 2023. Under Nigerian law, for an arbitration to take place, there must be an express agreement or a clause in an agreement giving it force. And for this agreement to be valid, it must be in writing and both parties must have mutually agreed, just like in every contract, to the procedure in respect of an arbitrable dispute.
Nature of Dispute: Appropriate for Commercial, contractual, complex disputes where parties want a binding decision but wish to avoid the formalities of court.
Key Elements: enforceability, Consent, Evidence and hearing, final and binding, efficiency, Arbitration Agreement
Procedure: Arbitration is more formal and structured, resembling a court proceeding with set rules for presenting evidence and witnesses wherein an arbitrator or panel of arbitrators listens to parties and makes a binding decision much more like a judge.
Advantages: Binding decision, more control over the selection of the arbitrator, private process often faster than litigation.
Desired Outcome: choose, if you need a definitive outcome, prefer confidentiality and want to avoid prolonged court proceedings.
NEGOTIATION
Black’s Law[13] dictionary defines Negotiation as a consensual bargaining process in which the parties attempt to reach an agreement on a disputed or potentially disputed matter. In other words, Negotiation is a means of dispute resolution where disputants explore settlement by discussion of issues. It is an informal process which offers parties a win-win situation. The parties are in total control of the process, without the intervention of third parties.
In no particular order, it is best to explore negotiation first in resolving disputes as it is faster and cheaper.
Nature of Dispute: appropriate for simple disputes where both parties are willing to resolve the matter themselves without third-party involvement.
Procedure: it is an informal process where the parties communicate directly and come to an agreement through mutual discussion.
Advantages: cost-effective, private, confidential, and the parties maintain control over the outcome.
Desired Outcome: consider if you have a good relationship with the other party and believe you can resolve the issue through discussion.
CONCILIATION:
Conciliation is a form of alternative dispute resolution similar to mediation but less formal than mediation, in which disputants submit to a neutral third party, who helps explore possible solutions to their dispute. The Conciliator identify the disputed issues, formulates options, explores alternatives and tries to settle. His role is advisory and the difference between conciliation and mediation is the degree of intervention by the third parties in settling disputes. The conciliator goes a step further by drawing up and proposing the terms of the agreement after hearing from both sides while exploring the opportunity for settlement and helping them reach an agreed settlement.[14].
It is a process whereby a neutral third party enables communication between the disputing parties in an attempt to help them resolve their differences. The process begins with the conciliator seeking the consent of parties to settle the dispute amicably by conciliation; if the response is positive, a joint meeting with the parties is scheduled after which, the conciliator meets each party separately and privately to discuss the matter with confidence and find out each party’s point of view. Moving on, the conciliator carefully considers each party’s evidence and submissions as compared to the other Party’s. As an expert in the field, he gives suggestions and advice on the issue, draws up and proposes the terms of settlement which may facilitate settlement between parties (Ezejiofor. G)[15].
Nature of Dispute: appropriate for employment, commercial, or family disputes where there is need for an expert to guide disputants towards resolution but without making a binding decision.
Procedure: A conciliator, often an expert in the field, assists the parties in reaching a settlement but does not issue a binding decision.
Advantages: informal, voluntary, private, involves exerting guidance and allows parties to maintain control over the final decision.
Desired Outcome: consider if you need expert input to help resolve the dispute but prefer to maintain control over the outcome.
Factors to consider when Choosing an ADR Mechanism:
- Nature of the Dispute: For example, mediation may be better for emotionally charged disputes, while arbitration may suit more technical or complex cases.
- Relationship between Parties: if maintaining the relationship is important, mediation or negotiation may be ideal.
- Cost and Time: some mechanisms, like arbitration, can be costly, while others like negotiation can be more affordable.
- Desired Outcome: if you want a binding decision, arbitration may be suitable, while if you prefer to maintain control, mediation might work better.
- Confidentiality: Most ADR processes are private, unlike court litigation, which is often public.
- Enforceability: Arbitration awards are generally enforceable in court, while negotiated or mediated agreements depend on mutual commitment.
By assessing these factors, you can determine the best ADR mechanism for resolving your specific dispute.
Conclusion
ADR has become an indispensable mechanism in administering the justice system in Nigeria.
Over the years, the practice and operations of ADR have become acceptable and essential in resolving commercial disputes. With the popularity and acceptance of these methods of dispute resolution and their structure in place, there is no doubt that Nigeria is equipping itself to face the escalating commercial dispute resulting from the growth in commercial business activities and increase in international trade and investment as conflicts, if not resolved, makes it difficult for individuals to carry on business activity together.
REFERENCES
- A.F. Adenekan(2020). Alternative Dispute Resolution in Nigeria
- Access to Justice,1995
- Bailey, P. (2014). Neutrality in Mediation: An Ambiguous Ethical Value. Journal of Mediation and Applied Conflict Analysis,2014, vol 1, No.1
- Barret J.T (2019), ‘A History of Alternative Dispute Resolution’ wcpa>servlet> DCARead>
- CEDR (2010). Available at https://www.cedr.com/CEDR_solve/services/mediation.ph.last visited 13/9/2024
- Dispute Resolution in the Digital Age: The Rise of Online Arbitration and Mediation.
- G. Ezejiofor, The Law of Arbitration in Nigeria, (1997, Longman) 7
- H. Brooke, ”Mediation in personal injury and clinical negligence cases”,(2008)4, Journal of Personal Injury Law.
- Maiese,M(2005).’’Neutrality.’’ Beyond Intractability.Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado.
- Ogwora, E.T. (2023). Reengineering the Prevention and Management of Conflict through Alternative Dispute Resolution Mechanism: A Critical Analysis of Mediation, its Nature, Fundamental Principles and Approaches.Journal of African Interdisciplinary Studies, 7(6), 40-65.
- Okeya I.O. (2020). Critical examination of alternative dispute resolution. International Journal of Research and Review;7(11): 95-105.
- The Impact of Technology on Arbitration: Opportunities and Challenges
- The Role of Arbitration in Ensuring Fairness and Impartiality in Arbitral Proceedings
- Ubanyionwu C.J (2023). Analysis of the Evolution of Arbitration and other Alternative Dispute Resolution Modes in Nigeria; African Journal of Law and Human Rights (AJLHR)
[1] J.T. Barret, ‘A History of Alternative Dispute Resolution’ wcpa>servlet> DCARead> accessed5 September 2019
[2] (1998) 4 NWLR Pt. 90, 554 at 586
[3] Ibid. Barret (n2)
[4] Access to Justice,1995
[5] H. Brooke (2008), ‘’Mediation in personal injury and clinical negligence cases’’, Journal of Personal Injury Law.
[6] A.F.Adenekan(2020). Alternative Dispute Resolution in Nigeria
[7] CEDR (2010). Available at https://www.cedr.com/CEDR_solve/services/mediation.ph.last visited 13/9/2024
[8] Ogwora, E.T. (2023). Reengineering the Prevention and Management of Conflict through Alternative Dispute Resolution Mechanism: A Critical Analysis of Mediation, its Nature, Fundamental Principles and Approaches. Journal of African Interdisciplinary Studies, 7(6), 40-65.
[9] Okeya I.O. (2020). Critical examination of alternative dispute resolution. International Journal of Research and Review;7(11): 95-105.
[10] Op.cite
[11] Maiese,M(2005).’’Neutrality.’’ Beyond Intractability.Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado.
[12] Bailey,P.(2014). Neutrality in Mediation: An Ambiguous Ethical Value. Journal of Mediation and Applied Conflict Analysis,2014, vol 1, No.1
[13] B.A. Garner
[14] Ubanyionwu C.J (2023). Analysis of the Evolution of Arbitration and other Alternative Dispute Resolution Modes in Nigeria; African Journal of Law and Human Rights (AJLHR)
[15] G. Ezejiofor (1997), The Law of Arbitration in Nigeria, Longman 7
- Mediation vs Arbitration: Choosing the Right ADR Mechanism for your Dispute
Introduction
Mediation and Arbitration are Alternative Dispute Resolution Mechanisms, each with its different method of administration. Right from inception and time immemorial, conflict has always been a part of human existence, conflict to some extent is not the problem but means to conflict resolution, management, and preservation of peace and security, hence the need for an efficient dispute resolution mechanism. Just as conflict has been a part of human existence, the alternative dispute resolution mechanism, although informal in practice, has now become a global and formal phenomenon for dispute resolution. The United Nations Charter in Article 33 posits that conflict management as well as conflict resolution must involve alternative dispute resolution mechanisms. Parties to any dispute must first of all seek a solution by negotiation, enquiry, arbitration, conciliation, judicial settlement or resort to regional agencies or other peaceful means of their choice (UN Charter 1945).
These ADR methods/mechanisms are processes designed to assist parties in dispute resolution as opposed to the traditional court adjudication, they don’t supplant court adjudication but rather, supplement it.
Over time, the process and complexity of court litigation have become more time-consuming, expensive and cumbersome leading to delays in justice delivery. On the other hand, the ever-increasing number of cases in courts is quite alarming. There may be claims involving small sums, which may not be worth the cost of litigation. All these issues and more, have led to the development of alternative methods of resolving disputes otherwise referred to as ADR (Barret 2019)[1]. Although these methods are often thought of as new ways of resolving disputes, ADR processes are not new in Africa, our traditional society settled disputes by referring to the village and traditional chiefs and elders and other respected members of the society it is deep-rooted in human history, and it has long played a crucial role in cultures across the globe. In the case of Okpururu v. Okpokam, Oguntade JCA (as he then was) observed that; ‘… in the pre-colonial times and before the advent of the regular courts, our people (Nigerians) certainly had a simple and inexpensive way of adjudicating over dispute between them. They referred to the elders or to a body set up for that purpose…’[2]
In the pre-colonial Yoruba city, disputes were settled by the mogaji, the bale, the lineage heads, and the elderly heads men of the district. The elders have an arsenal of techniques for dispute resolution, namely using proverbs, persuasions, subtle blackmails, precedents, and even magic. The elders have adjudicatory powers to settle disputes and these powers are cultural and can also threaten disputants with social ex-communication or emotional blackmail.[3]. Lord Woolf in his Interim Report[4], highlights the global status of ADR and how it has been an indispensable tool in dispute resolution. Litigation might not always be the best option hence the need for more awareness of ADR (H. Brooke (2008),)[5].
Alternative Dispute Resolution is fully recognized in the Nigerian Legal System, the 1999 Constitution of the Federal Republic of Nigeria (as amended) in section 19(d) provides for the settlement of disputes by Arbitration, Mediation, Conciliation, Negotiation and Adjudication. The Arbitration and Mediation Act 2023 established a legal framework for arbitration and mediation settlement in Nigeria. The High Court Rules of various states referred cases to ADR, Order 19 of the Federal High Court (Civil procedure) Rules of Nigeria provides for supportive court interventions in arbitral proceedings. Rule 15(3)(d) of the Rules of Professional Conduct for Legal Practitioners mandates Lawyers to attempt an alternative dispute resolution before bringing any matter before the court for a hearing (A.F. Adenekan 2020)[6].
ADR has received global status in almost all parts of the world, although, it is not all types of alternative dispute mechanisms that have received recognition. For instance, in the US, the ADR became formally recognized after independence with the case between the Dutch and British regarding patents and trademarks. Mediation is more popular in America due to its nature and procedural easiness in dispute resolution. In the same vein, we see arbitration as an indispensable mechanism permeating the spaces of Russia where the country adopted arbitration as a form of ADR. In Russia, arbitration is mainly used in dealing with disputes arising mainly from commercial and business matters. Mediation and conciliation are also used alongside arbitration in settling disputes revolving around an individual’s interests and rights.
In Australia, the majority of the population sees litigation as inefficient for want of cost and time-bound. And as a result of that, many issues on commercials are resolved using mediation and negotiation. In Australia, mediation is more used than any form of ADR reason being that it allows parties to agree to a settlement easily and preserve lasting relationships.
The case is entirely different with the People’s Republic of China. It has modified the application of ADR and looks different from what is obtainable in other countries in the West. It merged the ADR in their judicial system allowing the two processes to work together simultaneously. ADR in China is duly conducted by the same court or Tribunal handling a matter during the hearing session such that a judge handling a matter in court can decide to switch from the litigation process to the settlement process. This process is peculiar to only China’s legal system. ADR was introduced in Tanzania by the Tanzania Civil Procedure Act Code (cap 33RE2002) and provides that the main alternative dispute resolution mechanism includes: arbitration which is commonly used in commercial disputes (Arbitration Act Ca 15 RE 2002). Apart from arbitration; mediation and reconciliation are also used prominently in Tanzania, especially in disputes related to individual interests. The country has made it compulsory for all legal practitioners to take a course on ADR to enhance their knowledge.
In Kenya, the constitution of Kenya (2010) has made ADR part of their legal system. It recognizes the use of Arbitration, mediation, conciliation and traditional mechanisms to resolve disputes or conflict. The constitution in Article 159, provides that in exercising judicial authority, an alternative dispute resolution mechanism shall be promoted.
The significance of ADR cannot be overemphasized as it provides an avenue to resolve disputes creatively and effectively by finding the technique that is most appropriate to the circumstances.
This study focuses on the ADR as a dispute settlement mechanism with emphasis on Mediation and Arbitration while highlighting factors involved in choosing the right ADR mechanism for your dispute.
Choosing the Right ADR Mechanism for your Dispute:
There are several methods of dispute resolution, these include mediation, conciliation and negotiation etc. and a good way to choose the right ADR mechanism for your dispute is to consider the individual characteristics that differentiate the processes, the fundamental principles of the processes and this depends on a number of factors, such as the nature of the dispute, the relationship between the parties, the desired outcome, cost and time constraints. For instance, the role confidentiality plays varies from process to process. For instance, in terms of confidentiality, most ADR processes have the confidentiality feature with mediation ranking the highest in terms of confidentiality while arbitration and early neutral evaluation are not generally considered to be confidential processes. Also, there’s a need for a well-learned, skilled and experienced neutral third party as officiating personnel is needed to anchor the resolution.
Below is an outline of the distinct features of each of the Alternative Dispute resolution mechanisms which serve as a guide to choosing the ADR mechanism
Mediation
The nature, principles and practice of mediation have given it a global preference as it has shown an average success rate of 70-80% in the Western world while in Africa it is even higher due to its predominance prior to Western influence. Before the advent of colonialism, the early Africans had always had an established method of conflict management with village elders and family heads resolving disputes and decisions which were binding on the feuding parties.
It is worthy of note that of all the ADR mechanisms, Mediation is the most widely used, especially being that it is most neutral, flexible, independent and effective. The Centre for Effective Dispute Resolution[7] gave an accepted definition of mediation as:
‘’…a flexible process conducted confidentially in which a neutral person assists the 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…’’
Therefore, mediation could be described as a process whereby neutral third-party disputants resolve their dispute wherein the disputing parties make the final decision themselves. It allows for more direct participation of those affected by the decision. It is a process that those involved can control. It is a private and confidential way of resolving disputes as the proceeding is conducted in private and the mediator will not divulge the outcome to anyone outside the mediation without the consent of those involved. Private meetings between the mediator and each party involved separately during mediation are confidential.
Despite its shortcomings, mediation can be a lot cheaper and quicker than a court hearing and in the event of a successful mediation, court time is saved too.
The sui generis nature of mediation makes it different from other forms of dispute resolution mechanisms, such that it emphasizes parties’ freedom in exploring and identifying a resolution that is mutual without involving a third party to proffer a solution. After a resolution has been attained by parties, they usually sign a settlement agreement that can later be enforced. Another quality of mediation is that it enhances permanent dispute resolution (Ogwora, E.T,2023) [8].
Mediation is non-adversarial, collaborative with more focus on cooperation rather than the win-lose dynamic seen in litigation/arbitration. It seeks to preserve relationships. In mediation, the focus is on interests, not rights. It emphasizes understanding the interests behind each party’s position rather than focusing solely on legal rights (Okeya I.O.2020)[9]. Despite its shortcomings, mediation has become a viable option in many systems. Where it is included in the contractual agreement that any dispute must be resolved through mediation, then it must be affected as a matter of policy. In England and Wales, it is a policy that parties in commercial litigation must mediate even if mediation is not included in their contract agreement (Ogwora, E.T,2023)[10]. UN has also adopted legislation on mediation procedures under the International Commercial Mediation (UN,2002)
Features of Mediation
In mediation, neutrality is a quality a mediator must possess to set aside his personal opinion, on the matter before him. It shows the absence of bias, prejudice or preference for either of the parties.
Neutrality simply means not taking sides, the act of not supporting or opposing.
According to Maiese[11], neutrality is being open-minded, not personally connected to the parties yet mutually acceptable to both parties where there is an unbiased relationship between the mediator and the parties. It is the mediator’s duty to facilitate the development of the conversation between the parties to enable them reach a mutually acceptable outcome (Bailey,2014)[12]. The mediator must avoid at all costs the zeal to offer advice or counsel to the parties. Mediators are ‘neutrals’ whose role does not determine the outcome of a dispute but is largely limited to facilitating the process and helping disputants arrive at a settlement. A mediator normally is a moral agent. While discharging his duties, he must ensure he intends that the good should prevail. The emphasis should be, not the perceived good but the real good. Any settlement by the mediator should be that which serves the interests and the rights of the parties.
Before commencing the process, the mediator must ensure to explain these neutrality features and process to the disputants to give them understanding and immerse themselves in the process. The mediator must use their skills and techniques as a mediator to support and empower the parties to reach a mutually acceptable outcome thereby promoting self-determination of disputants. Neutrality as a principle demands that the mediator has knowledge and theory of the code of ethics throughout the process of exploring alternatives for dispute resolution. In mediation, confidentiality is central, while it is not typically expected in arbitration or conciliation. Although the final decision in mediation is tentative, it could be confidential or not confidential.
Nature of Dispute: Cases appropriate for mediation are cases where both parties are open to negotiation and wish to preserve their relationship e.g. Disputes in commercial transactions, personal injury, divorce, workers compensation, business, family or community disputes.
Elements: party autonomy, impartiality, voluntariness and confidentiality are all distinct features of Mediation practice.
Procedure: A neutral mediator helps the parties communicate and reach a mutually agreeable solution but does not impose a decision. There are three main phases; pre-mediation (entails agreeing to mediate), mediation (direct/caucus meeting) and post-mediation (complying with the outcome).
Advantages: voluntary, flexible, self-determination, faster and less expensive. Confidential and allows for creative solutions.
Desired Outcome: appropriate if you want a collaborative process and are looking to resolve the dispute privately.
ARBITRATION
The Court has always been a dumping ground for cases making it too congested and marked by incessant delays. ADR was introduced to reduce the workload of the court and also help parties explore other settlement methods outside the court. In arbitration, there are panel of arbitrators or a sole arbitrator who functions like a judge. The arbitrator’s role is adjudicative which gives them authority to impose an award/solution. The arbitrator makes a final decision after hearing the arguments and evidence from both sides, much like a judge would, evaluating evidence and making a decision that the parties must follow which is binding and enforceable.
Arbitration is the oldest form of dispute resolution and has been on the rise in recent times because of its procedural outcome as well as flexibility of the process, such as the ability to choose arbitrators, seat of arbitration, and procedural rules, among others etc. In Nigeria, the Arbitration is governed by the Arbitration and Mediation Act 2023. Under Nigerian law, for an arbitration to take place, there must be an express agreement or a clause in an agreement giving it force. And for this agreement to be valid, it must be in writing and both parties must have mutually agreed, just like in every contract, to the procedure in respect of an arbitrable dispute.
Nature of Dispute: Appropriate for Commercial, contractual, complex disputes where parties want a binding decision but wish to avoid the formalities of court.
Key Elements: enforceability, Consent, Evidence and hearing, final and binding, efficiency, Arbitration Agreement
Procedure: Arbitration is more formal and structured, resembling a court proceeding with set rules for presenting evidence and witnesses wherein an arbitrator or panel of arbitrators listens to parties and makes a binding decision much more like a judge.
Advantages: Binding decision, more control over the selection of the arbitrator, private process often faster than litigation.
Desired Outcome: choose, if you need a definitive outcome, prefer confidentiality and want to avoid prolonged court proceedings.
NEGOTIATION
Black’s Law[13] dictionary defines Negotiation as a consensual bargaining process in which the parties attempt to reach an agreement on a disputed or potentially disputed matter. In other words, Negotiation is a means of dispute resolution where disputants explore settlement by discussion of issues. It is an informal process which offers parties a win-win situation. The parties are in total control of the process, without the intervention of third parties.
In no particular order, it is best to explore negotiation first in resolving disputes as it is faster and cheaper.
Nature of Dispute: appropriate for simple disputes where both parties are willing to resolve the matter themselves without third-party involvement.
Procedure: it is an informal process where the parties communicate directly and come to an agreement through mutual discussion.
Advantages: cost-effective, private, confidential, and the parties maintain control over the outcome.
Desired Outcome: consider if you have a good relationship with the other party and believe you can resolve the issue through discussion.
CONCILIATION:
Conciliation is a form of alternative dispute resolution similar to mediation but less formal than mediation, in which disputants submit to a neutral third party, who helps explore possible solutions to their dispute. The Conciliator identify the disputed issues, formulates options, explores alternatives and tries to settle. His role is advisory and the difference between conciliation and mediation is the degree of intervention by the third parties in settling disputes. The conciliator goes a step further by drawing up and proposing the terms of the agreement after hearing from both sides while exploring the opportunity for settlement and helping them reach an agreed settlement.[14].
It is a process whereby a neutral third party enables communication between the disputing parties in an attempt to help them resolve their differences. The process begins with the conciliator seeking the consent of parties to settle the dispute amicably by conciliation; if the response is positive, a joint meeting with the parties is scheduled after which, the conciliator meets each party separately and privately to discuss the matter with confidence and find out each party’s point of view. Moving on, the conciliator carefully considers each party’s evidence and submissions as compared to the other Party’s. As an expert in the field, he gives suggestions and advice on the issue, draws up and proposes the terms of settlement which may facilitate settlement between parties (Ezejiofor. G)[15].
The Institute of Chartered Mediators and Conciliators (ICMC) is the institutional framework for the practice of mediation and conciliation in Nigeria and also, the professional body of practitioners that regulates Mediation and Conciliation practice in Nigeria. The Institute of Chartered Mediators and Conciliators (ICMC) in their advisory capacity, encourages the adoption of Mediation and Conciliation as a primary tool for addressing disputes. The conciliator plays a proactive role in bringing about a settlement between parties as captured under the UNCITRAL Model Law.
Nature of Dispute: appropriate for employment, commercial, or family disputes where there is need for an expert to guide disputants towards resolution but without making a binding decision.
Procedure: A conciliator, often an expert in the field, assists the parties in reaching a settlement but does not issue a binding decision.
Advantages: informal, voluntary, private, involves exerting guidance and allows parties to maintain control over the final decision.
Desired Outcome: consider if you need expert input to help resolve the dispute but prefer to maintain control over the outcome.
Factors to consider when Choosing an ADR Mechanism:
- Nature of the Dispute: For example, mediation may be better for emotionally charged disputes, while arbitration may suit more technical or complex cases.
- Relationship between Parties: if maintaining the relationship is important, mediation or negotiation may be ideal.
- Cost and Time: some mechanisms, like arbitration, can be costly, while others like negotiation can be more affordable.
- Desired Outcome: if you want a binding decision, arbitration may be suitable, while if you prefer to maintain control, mediation might work better.
- Confidentiality: Most ADR processes are private, unlike court litigation, which is often public.
- Enforceability: Arbitration awards are generally enforceable in court, while negotiated or mediated agreements depend on mutual commitment.
By assessing these factors, you can determine the best ADR mechanism for resolving your specific dispute.
Conclusion
ADR has become an indispensable mechanism in administering the justice system in Nigeria.
Over the years, the practice and operations of ADR have become acceptable and essential in resolving commercial disputes. With the popularity and acceptance of these methods of dispute resolution and their structure in place, there is no doubt that Nigeria is equipping itself to face the escalating commercial dispute resulting from the growth in commercial business activities and increase in international trade and investment as conflicts, if not resolved, makes it difficult for individuals to carry on business activity together.
REFERENCES
- A.F. Adenekan(2020). Alternative Dispute Resolution in Nigeria
- Access to Justice,1995
- Bailey, P. (2014). Neutrality in Mediation: An Ambiguous Ethical Value. Journal of Mediation and Applied Conflict Analysis,2014, vol 1, No.1
- Barret J.T (2019), ‘A History of Alternative Dispute Resolution’ wcpa>servlet> DCARead>
- CEDR (2010). Available at https://www.cedr.com/CEDR_solve/services/mediation.ph.last visited 13/9/2024
- Dispute Resolution in the Digital Age: The Rise of Online Arbitration and Mediation.
- G. Ezejiofor, The Law of Arbitration in Nigeria, (1997, Longman) 7
- H. Brooke, ”Mediation in personal injury and clinical negligence cases”,(2008)4, Journal of Personal Injury Law.
- Maiese,M(2005).’’Neutrality.’’ Beyond Intractability.Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado.
- Ogwora, E.T. (2023). Reengineering the Prevention and Management of Conflict through Alternative Dispute Resolution Mechanism: A Critical Analysis of Mediation, its Nature, Fundamental Principles and Approaches.Journal of African Interdisciplinary Studies, 7(6), 40-65.
- Okeya I.O. (2020). Critical examination of alternative dispute resolution. International Journal of Research and Review;7(11): 95-105.
- The Impact of Technology on Arbitration: Opportunities and Challenges
- The Role of Arbitration in Ensuring Fairness and Impartiality in Arbitral Proceedings
- Ubanyionwu C.J (2023). Analysis of the Evolution of Arbitration and other Alternative Dispute Resolution Modes in Nigeria; African Journal of Law and Human Rights (AJLHR)
[1] J.T. Barret, ‘A History of Alternative Dispute Resolution’ wcpa>servlet> DCARead> accessed5 September 2019
[2] (1998) 4 NWLR Pt. 90, 554 at 586
[3] Ibid. Barret (n2)
[4] Access to Justice,1995
[5] H. Brooke (2008), ‘’Mediation in personal injury and clinical negligence cases’’, Journal of Personal Injury Law.
[6] A.F.Adenekan(2020). Alternative Dispute Resolution in Nigeria
[7] CEDR (2010). Available at https://www.cedr.com/CEDR_solve/services/mediation.ph.last visited 13/9/2024
[8] Ogwora, E.T. (2023). Reengineering the Prevention and Management of Conflict through Alternative Dispute Resolution Mechanism: A Critical Analysis of Mediation, its Nature, Fundamental Principles and Approaches. Journal of African Interdisciplinary Studies, 7(6), 40-65.
[9] Okeya I.O. (2020). Critical examination of alternative dispute resolution. International Journal of Research and Review;7(11): 95-105.
[10] Op.cite
[11] Maiese,M(2005).’’Neutrality.’’ Beyond Intractability.Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado.
[12] Bailey,P.(2014). Neutrality in Mediation: An Ambiguous Ethical Value. Journal of Mediation and Applied Conflict Analysis,2014, vol 1, No.1
[13] B.A. Garner
[14] Ubanyionwu C.J (2023). Analysis of the Evolution of Arbitration and other Alternative Dispute Resolution Modes in Nigeria; African Journal of Law and Human Rights (AJLHR)
[15] G. Ezejiofor (1997), The Law of Arbitration in Nigeria, Longman 7
- Mediation vs Arbitration: Choosing the Right ADR Mechanism for your Dispute
Introduction
Mediation and Arbitration are Alternative Dispute Resolution Mechanisms, each with its different method of administration. Right from inception and time immemorial, conflict has always been a part of human existence, conflict to some extent is not the problem but means to conflict resolution, management, and preservation of peace and security, hence the need for an efficient dispute resolution mechanism. Just as conflict has been a part of human existence, the alternative dispute resolution mechanism, although informal in practice, has now become a global and formal phenomenon for dispute resolution. The United Nations Charter in Article 33 posits that conflict management as well as conflict resolution must involve alternative dispute resolution mechanisms. Parties to any dispute must first of all seek a solution by negotiation, enquiry, arbitration, conciliation, judicial settlement or resort to regional agencies or other peaceful means of their choice (UN Charter 1945).
These ADR methods/mechanisms are processes designed to assist parties in dispute resolution as opposed to the traditional court adjudication, they don’t supplant court adjudication but rather, supplement it.
Over time, the process and complexity of court litigation have become more time-consuming, expensive and cumbersome leading to delays in justice delivery. On the other hand, the ever-increasing number of cases in courts is quite alarming. There may be claims involving small sums, which may not be worth the cost of litigation. All these issues and more, have led to the development of alternative methods of resolving disputes otherwise referred to as ADR (Barret 2019)[1]. Although these methods are often thought of as new ways of resolving disputes, ADR processes are not new in Africa, our traditional society settled disputes by referring to the village and traditional chiefs and elders and other respected members of the society it is deep-rooted in human history, and it has long played a crucial role in cultures across the globe. In the case of Okpururu v. Okpokam, Oguntade JCA (as he then was) observed that; ‘… in the pre-colonial times and before the advent of the regular courts, our people (Nigerians) certainly had a simple and inexpensive way of adjudicating over dispute between them. They referred to the elders or to a body set up for that purpose…’[2]
In the pre-colonial Yoruba city, disputes were settled by the mogaji, the bale, the lineage heads, and the elderly heads men of the district. The elders have an arsenal of techniques for dispute resolution, namely using proverbs, persuasions, subtle blackmails, precedents, and even magic. The elders have adjudicatory powers to settle disputes and these powers are cultural and can also threaten disputants with social ex-communication or emotional blackmail.[3]. Lord Woolf in his Interim Report[4], highlights the global status of ADR and how it has been an indispensable tool in dispute resolution. Litigation might not always be the best option hence the need for more awareness of ADR (H. Brooke (2008),)[5].
Alternative Dispute Resolution is fully recognized in the Nigerian Legal System, the 1999 Constitution of the Federal Republic of Nigeria (as amended) in section 19(d) provides for the settlement of disputes by Arbitration, Mediation, Conciliation, Negotiation and Adjudication. The Arbitration and Mediation Act 2023 established a legal framework for arbitration and mediation settlement in Nigeria. The High Court Rules of various states referred cases to ADR, Order 19 of the Federal High Court (Civil procedure) Rules of Nigeria provides for supportive court interventions in arbitral proceedings. Rule 15(3)(d) of the Rules of Professional Conduct for Legal Practitioners mandates Lawyers to attempt an alternative dispute resolution before bringing any matter before the court for a hearing (A.F. Adenekan 2020)[6].
ADR has received global status in almost all parts of the world, although, it is not all types of alternative dispute mechanisms that have received recognition. For instance, in the US, the ADR became formally recognized after independence with the case between the Dutch and British regarding patents and trademarks. Mediation is more popular in America due to its nature and procedural easiness in dispute resolution. In the same vein, we see arbitration as an indispensable mechanism permeating the spaces of Russia where the country adopted arbitration as a form of ADR. In Russia, arbitration is mainly used in dealing with disputes arising mainly from commercial and business matters. Mediation and conciliation are also used alongside arbitration in settling disputes revolving around an individual’s interests and rights.
In Australia, the majority of the population sees litigation as inefficient for want of cost and time-bound. And as a result of that, many issues on commercials are resolved using mediation and negotiation. In Australia, mediation is more used than any form of ADR reason being that it allows parties to agree to a settlement easily and preserve lasting relationships.
The case is entirely different with the People’s Republic of China. It has modified the application of ADR and looks different from what is obtainable in other countries in the West. It merged the ADR in their judicial system allowing the two processes to work together simultaneously. ADR in China is duly conducted by the same court or Tribunal handling a matter during the hearing session such that a judge handling a matter in court can decide to switch from the litigation process to the settlement process. This process is peculiar to only China’s legal system. ADR was introduced in Tanzania by the Tanzania Civil Procedure Act Code (cap 33RE2002) and provides that the main alternative dispute resolution mechanism includes: arbitration which is commonly used in commercial disputes (Arbitration Act Ca 15 RE 2002). Apart from arbitration; mediation and reconciliation are also used prominently in Tanzania, especially in disputes related to individual interests. The country has made it compulsory for all legal practitioners to take a course on ADR to enhance their knowledge.
In Kenya, the constitution of Kenya (2010) has made ADR part of their legal system. It recognizes the use of Arbitration, mediation, conciliation and traditional mechanisms to resolve disputes or conflict. The constitution in Article 159, provides that in exercising judicial authority, an alternative dispute resolution mechanism shall be promoted.
The significance of ADR cannot be overemphasized as it provides an avenue to resolve disputes creatively and effectively by finding the technique that is most appropriate to the circumstances.
This study focuses on the ADR as a dispute settlement mechanism with emphasis on Mediation and Arbitration while highlighting factors involved in choosing the right ADR mechanism for your dispute.
Choosing the Right ADR Mechanism for your Dispute:
There are several methods of dispute resolution, these include mediation, conciliation and negotiation etc. and a good way to choose the right ADR mechanism for your dispute is to consider the individual characteristics that differentiate the processes, the fundamental principles of the processes and this depends on a number of factors, such as the nature of the dispute, the relationship between the parties, the desired outcome, cost and time constraints. For instance, the role confidentiality plays varies from process to process. For instance, in terms of confidentiality, most ADR processes have the confidentiality feature with mediation ranking the highest in terms of confidentiality while arbitration and early neutral evaluation are not generally considered to be confidential processes. Also, there’s a need for a well-learned, skilled and experienced neutral third party as officiating personnel is needed to anchor the resolution.
Below is an outline of the distinct features of each of the Alternative Dispute resolution mechanisms which serve as a guide to choosing the ADR mechanism
Mediation
The nature, principles and practice of mediation have given it a global preference as it has shown an average success rate of 70-80% in the Western world while in Africa it is even higher due to its predominance prior to Western influence. Before the advent of colonialism, the early Africans had always had an established method of conflict management with village elders and family heads resolving disputes and decisions which were binding on the feuding parties.
It is worthy of note that of all the ADR mechanisms, Mediation is the most widely used, especially being that it is most neutral, flexible, independent and effective. The Centre for Effective Dispute Resolution[7] gave an accepted definition of mediation as:
‘’…a flexible process conducted confidentially in which a neutral person assists the 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…’’
Therefore, mediation could be described as a process whereby neutral third-party disputants resolve their dispute wherein the disputing parties make the final decision themselves. It allows for more direct participation of those affected by the decision. It is a process that those involved can control. It is a private and confidential way of resolving disputes as the proceeding is conducted in private and the mediator will not divulge the outcome to anyone outside the mediation without the consent of those involved. Private meetings between the mediator and each party involved separately during mediation are confidential.
Despite its shortcomings, mediation can be a lot cheaper and quicker than a court hearing and in the event of a successful mediation, court time is saved too.
The sui generis nature of mediation makes it different from other forms of dispute resolution mechanisms, such that it emphasizes parties’ freedom in exploring and identifying a resolution that is mutual without involving a third party to proffer a solution. After a resolution has been attained by parties, they usually sign a settlement agreement that can later be enforced. Another quality of mediation is that it enhances permanent dispute resolution (Ogwora, E.T,2023) [8].
Mediation is non-adversarial, collaborative with more focus on cooperation rather than the win-lose dynamic seen in litigation/arbitration. It seeks to preserve relationships. In mediation, the focus is on interests, not rights. It emphasizes understanding the interests behind each party’s position rather than focusing solely on legal rights (Okeya I.O.2020)[9]. Despite its shortcomings, mediation has become a viable option in many systems. Where it is included in the contractual agreement that any dispute must be resolved through mediation, then it must be affected as a matter of policy. In England and Wales, it is a policy that parties in commercial litigation must mediate even if mediation is not included in their contract agreement (Ogwora, E.T,2023)[10]. UN has also adopted legislation on mediation procedures under the International Commercial Mediation (UN,2002)
Features of Mediation
In mediation, neutrality is a quality a mediator must possess to set aside his personal opinion, on the matter before him. It shows the absence of bias, prejudice or preference for either of the parties.
Neutrality simply means not taking sides, the act of not supporting or opposing.
According to Maiese[11], neutrality is being open-minded, not personally connected to the parties yet mutually acceptable to both parties where there is an unbiased relationship between the mediator and the parties. It is the mediator’s duty to facilitate the development of the conversation between the parties to enable them reach a mutually acceptable outcome (Bailey,2014)[12]. The mediator must avoid at all costs the zeal to offer advice or counsel to the parties. Mediators are ‘neutrals’ whose role does not determine the outcome of a dispute but is largely limited to facilitating the process and helping disputants arrive at a settlement. A mediator normally is a moral agent. While discharging his duties, he must ensure he intends that the good should prevail. The emphasis should be, not the perceived good but the real good. Any settlement by the mediator should be that which serves the interests and the rights of the parties.
Before commencing the process, the mediator must ensure to explain these neutrality features and process to the disputants to give them understanding and immerse themselves in the process. The mediator must use their skills and techniques as a mediator to support and empower the parties to reach a mutually acceptable outcome thereby promoting self-determination of disputants. Neutrality as a principle demands that the mediator has knowledge and theory of the code of ethics throughout the process of exploring alternatives for dispute resolution. In mediation, confidentiality is central, while it is not typically expected in arbitration or conciliation. Although the final decision in mediation is tentative, it could be confidential or not confidential.
Nature of Dispute: Cases appropriate for mediation are cases where both parties are open to negotiation and wish to preserve their relationship e.g. Disputes in commercial transactions, personal injury, divorce, workers compensation, business, family or community disputes.
Elements: party autonomy, impartiality, voluntariness and confidentiality are all distinct features of Mediation practice.
Procedure: A neutral mediator helps the parties communicate and reach a mutually agreeable solution but does not impose a decision. There are three main phases; pre-mediation (entails agreeing to mediate), mediation (direct/caucus meeting) and post-mediation (complying with the outcome).
Advantages: voluntary, flexible, self-determination, faster and less expensive. Confidential and allows for creative solutions.
Desired Outcome: appropriate if you want a collaborative process and are looking to resolve the dispute privately.
ARBITRATION
The Court has always been a dumping ground for cases making it too congested and marked by incessant delays. ADR was introduced to reduce the workload of the court and also help parties explore other settlement methods outside the court. In arbitration, there are panel of arbitrators or a sole arbitrator who functions like a judge. The arbitrator’s role is adjudicative which gives them authority to impose an award/solution. The arbitrator makes a final decision after hearing the arguments and evidence from both sides, much like a judge would, evaluating evidence and making a decision that the parties must follow which is binding and enforceable.
Arbitration is the oldest form of dispute resolution and has been on the rise in recent times because of its procedural outcome as well as flexibility of the process, such as the ability to choose arbitrators, seat of arbitration, and procedural rules, among others etc. In Nigeria, the Arbitration is governed by the Arbitration and Mediation Act 2023. Under Nigerian law, for an arbitration to take place, there must be an express agreement or a clause in an agreement giving it force. And for this agreement to be valid, it must be in writing and both parties must have mutually agreed, just like in every contract, to the procedure in respect of an arbitrable dispute.
Nature of Dispute: Appropriate for Commercial, contractual, complex disputes where parties want a binding decision but wish to avoid the formalities of court.
Key Elements: enforceability, Consent, Evidence and hearing, final and binding, efficiency, Arbitration Agreement
Procedure: Arbitration is more formal and structured, resembling a court proceeding with set rules for presenting evidence and witnesses wherein an arbitrator or panel of arbitrators listens to parties and makes a binding decision much more like a judge.
Advantages: Binding decision, more control over the selection of the arbitrator, private process often faster than litigation.
Desired Outcome: choose, if you need a definitive outcome, prefer confidentiality and want to avoid prolonged court proceedings.
NEGOTIATION
Black’s Law[13] dictionary defines Negotiation as a consensual bargaining process in which the parties attempt to reach an agreement on a disputed or potentially disputed matter. In other words, Negotiation is a means of dispute resolution where disputants explore settlement by discussion of issues. It is an informal process which offers parties a win-win situation. The parties are in total control of the process, without the intervention of third parties.
In no particular order, it is best to explore negotiation first in resolving disputes as it is faster and cheaper.
Nature of Dispute: appropriate for simple disputes where both parties are willing to resolve the matter themselves without third-party involvement.
Procedure: it is an informal process where the parties communicate directly and come to an agreement through mutual discussion.
Advantages: cost-effective, private, confidential, and the parties maintain control over the outcome.
Desired Outcome: consider if you have a good relationship with the other party and believe you can resolve the issue through discussion.
CONCILIATION:
Conciliation is a form of alternative dispute resolution similar to mediation but less formal than mediation, in which disputants submit to a neutral third party, who helps explore possible solutions to their dispute. The Conciliator identify the disputed issues, formulates options, explores alternatives and tries to settle. His role is advisory and the difference between conciliation and mediation is the degree of intervention by the third parties in settling disputes. The conciliator goes a step further by drawing up and proposing the terms of the agreement after hearing from both sides while exploring the opportunity for settlement and helping them reach an agreed settlement.[14].
It is a process whereby a neutral third party enables communication between the disputing parties in an attempt to help them resolve their differences. The process begins with the conciliator seeking the consent of parties to settle the dispute amicably by conciliation; if the response is positive, a joint meeting with the parties is scheduled after which, the conciliator meets each party separately and privately to discuss the matter with confidence and find out each party’s point of view. Moving on, the conciliator carefully considers each party’s evidence and submissions as compared to the other Party’s. As an expert in the field, he gives suggestions and advice on the issue, draws up and proposes the terms of settlement which may facilitate settlement between parties (Ezejiofor. G)[15].
The Institute of Chartered Mediators and Conciliators (ICMC) is the institutional framework for the practice of mediation and conciliation in Nigeria and also, the professional body of practitioners that regulates Mediation and Conciliation practice in Nigeria. The Institute of Chartered Mediators and Conciliators (ICMC) in their advisory capacity, encourages the adoption of Mediation and Conciliation as a primary tool for addressing disputes. The conciliator plays a proactive role in bringing about a settlement between parties as captured under the UNCITRAL Model Law.
Nature of Dispute: appropriate for employment, commercial, or family disputes where there is need for an expert to guide disputants towards resolution but without making a binding decision.
Procedure: A conciliator, often an expert in the field, assists the parties in reaching a settlement but does not issue a binding decision.
Advantages: informal, voluntary, private, involves exerting guidance and allows parties to maintain control over the final decision.
Desired Outcome: consider if you need expert input to help resolve the dispute but prefer to maintain control over the outcome.
Factors to consider when Choosing an ADR Mechanism:
- Nature of the Dispute: For example, mediation may be better for emotionally charged disputes, while arbitration may suit more technical or complex cases.
- Relationship between Parties: if maintaining the relationship is important, mediation or negotiation may be ideal.
- Cost and Time: some mechanisms, like arbitration, can be costly, while others like negotiation can be more affordable.
- Desired Outcome: if you want a binding decision, arbitration may be suitable, while if you prefer to maintain control, mediation might work better.
- Confidentiality: Most ADR processes are private, unlike court litigation, which is often public.
- Enforceability: Arbitration awards are generally enforceable in court, while negotiated or mediated agreements depend on mutual commitment.
By assessing these factors, you can determine the best ADR mechanism for resolving your specific dispute.
Conclusion
ADR has become an indispensable mechanism in administering the justice system in Nigeria.
Over the years, the practice and operations of ADR have become acceptable and essential in resolving commercial disputes. With the popularity and acceptance of these methods of dispute resolution and their structure in place, there is no doubt that Nigeria is equipping itself to face the escalating commercial dispute resulting from the growth in commercial business activities and increase in international trade and investment as conflicts, if not resolved, makes it difficult for individuals to carry on business activity together.
REFERENCES
- A.F. Adenekan(2020). Alternative Dispute Resolution in Nigeria
- Access to Justice,1995
- Bailey, P. (2014). Neutrality in Mediation: An Ambiguous Ethical Value. Journal of Mediation and Applied Conflict Analysis,2014, vol 1, No.1
- Barret J.T (2019), ‘A History of Alternative Dispute Resolution’ wcpa>servlet> DCARead>
- CEDR (2010). Available at https://www.cedr.com/CEDR_solve/services/mediation.ph.last visited 13/9/2024
- Dispute Resolution in the Digital Age: The Rise of Online Arbitration and Mediation.
- G. Ezejiofor, The Law of Arbitration in Nigeria, (1997, Longman) 7
- H. Brooke, ”Mediation in personal injury and clinical negligence cases”,(2008)4, Journal of Personal Injury Law.
- Maiese,M(2005).’’Neutrality.’’ Beyond Intractability.Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado.
- Ogwora, E.T. (2023). Reengineering the Prevention and Management of Conflict through Alternative Dispute Resolution Mechanism: A Critical Analysis of Mediation, its Nature, Fundamental Principles and Approaches.Journal of African Interdisciplinary Studies, 7(6), 40-65.
- Okeya I.O. (2020). Critical examination of alternative dispute resolution. International Journal of Research and Review;7(11): 95-105.
- The Impact of Technology on Arbitration: Opportunities and Challenges
- The Role of Arbitration in Ensuring Fairness and Impartiality in Arbitral Proceedings
- Ubanyionwu C.J (2023). Analysis of the Evolution of Arbitration and other Alternative Dispute Resolution Modes in Nigeria; African Journal of Law and Human Rights (AJLHR)
[1] J.T. Barret, ‘A History of Alternative Dispute Resolution’ wcpa>servlet> DCARead> accessed5 September 2019
[2] (1998) 4 NWLR Pt. 90, 554 at 586
[3] Ibid. Barret (n2)
[4] Access to Justice,1995
[5] H. Brooke (2008), ‘’Mediation in personal injury and clinical negligence cases’’, Journal of Personal Injury Law.
[6] A.F.Adenekan(2020). Alternative Dispute Resolution in Nigeria
[7] CEDR (2010). Available at https://www.cedr.com/CEDR_solve/services/mediation.ph.last visited 13/9/2024
[8] Ogwora, E.T. (2023). Reengineering the Prevention and Management of Conflict through Alternative Dispute Resolution Mechanism: A Critical Analysis of Mediation, its Nature, Fundamental Principles and Approaches. Journal of African Interdisciplinary Studies, 7(6), 40-65.
[9] Okeya I.O. (2020). Critical examination of alternative dispute resolution. International Journal of Research and Review;7(11): 95-105.
[10] Op.cite
[11] Maiese,M(2005).’’Neutrality.’’ Beyond Intractability.Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado.
[12] Bailey,P.(2014). Neutrality in Mediation: An Ambiguous Ethical Value. Journal of Mediation and Applied Conflict Analysis,2014, vol 1, No.1
[13] B.A. Garner
[14] Ubanyionwu C.J (2023). Analysis of the Evolution of Arbitration and other Alternative Dispute Resolution Modes in Nigeria; African Journal of Law and Human Rights (AJLHR)
[15] G. Ezejiofor (1997), The Law of Arbitration in Nigeria, Longman 7
- Mediation vs Arbitration: Choosing the Right ADR Mechanism for your Dispute
Introduction
Mediation and Arbitration are Alternative Dispute Resolution Mechanisms, each with its different method of administration. Right from inception and time immemorial, conflict has always been a part of human existence, conflict to some extent is not the problem but means to conflict resolution, management, and preservation of peace and security, hence the need for an efficient dispute resolution mechanism. Just as conflict has been a part of human existence, the alternative dispute resolution mechanism, although informal in practice, has now become a global and formal phenomenon for dispute resolution. The United Nations Charter in Article 33 posits that conflict management as well as conflict resolution must involve alternative dispute resolution mechanisms. Parties to any dispute must first of all seek a solution by negotiation, enquiry, arbitration, conciliation, judicial settlement or resort to regional agencies or other peaceful means of their choice (UN Charter 1945).
These ADR methods/mechanisms are processes designed to assist parties in dispute resolution as opposed to the traditional court adjudication, they don’t supplant court adjudication but rather, supplement it.
Over time, the process and complexity of court litigation have become more time-consuming, expensive and cumbersome leading to delays in justice delivery. On the other hand, the ever-increasing number of cases in courts is quite alarming. There may be claims involving small sums, which may not be worth the cost of litigation. All these issues and more, have led to the development of alternative methods of resolving disputes otherwise referred to as ADR (Barret 2019)[1]. Although these methods are often thought of as new ways of resolving disputes, ADR processes are not new in Africa, our traditional society settled disputes by referring to the village and traditional chiefs and elders and other respected members of the society it is deep-rooted in human history, and it has long played a crucial role in cultures across the globe. In the case of Okpururu v. Okpokam, Oguntade JCA (as he then was) observed that; ‘… in the pre-colonial times and before the advent of the regular courts, our people (Nigerians) certainly had a simple and inexpensive way of adjudicating over dispute between them. They referred to the elders or to a body set up for that purpose…’[2]
In the pre-colonial Yoruba city, disputes were settled by the mogaji, the bale, the lineage heads, and the elderly heads men of the district. The elders have an arsenal of techniques for dispute resolution, namely using proverbs, persuasions, subtle blackmails, precedents, and even magic. The elders have adjudicatory powers to settle disputes and these powers are cultural and can also threaten disputants with social ex-communication or emotional blackmail.[3]. Lord Woolf in his Interim Report[4], highlights the global status of ADR and how it has been an indispensable tool in dispute resolution. Litigation might not always be the best option hence the need for more awareness of ADR (H. Brooke (2008),)[5].
Alternative Dispute Resolution is fully recognized in the Nigerian Legal System, the 1999 Constitution of the Federal Republic of Nigeria (as amended) in section 19(d) provides for the settlement of disputes by Arbitration, Mediation, Conciliation, Negotiation and Adjudication. The Arbitration and Mediation Act 2023 established a legal framework for arbitration and mediation settlement in Nigeria. The High Court Rules of various states referred cases to ADR, Order 19 of the Federal High Court (Civil procedure) Rules of Nigeria provides for supportive court interventions in arbitral proceedings. Rule 15(3)(d) of the Rules of Professional Conduct for Legal Practitioners mandates Lawyers to attempt an alternative dispute resolution before bringing any matter before the court for a hearing (A.F. Adenekan 2020)[6].
ADR has received global status in almost all parts of the world, although, it is not all types of alternative dispute mechanisms that have received recognition. For instance, in the US, the ADR became formally recognized after independence with the case between the Dutch and British regarding patents and trademarks. Mediation is more popular in America due to its nature and procedural easiness in dispute resolution. In the same vein, we see arbitration as an indispensable mechanism permeating the spaces of Russia where the country adopted arbitration as a form of ADR. In Russia, arbitration is mainly used in dealing with disputes arising mainly from commercial and business matters. Mediation and conciliation are also used alongside arbitration in settling disputes revolving around an individual’s interests and rights.
In Australia, the majority of the population sees litigation as inefficient for want of cost and time-bound. And as a result of that, many issues on commercials are resolved using mediation and negotiation. In Australia, mediation is more used than any form of ADR reason being that it allows parties to agree to a settlement easily and preserve lasting relationships.
The case is entirely different with the People’s Republic of China. It has modified the application of ADR and looks different from what is obtainable in other countries in the West. It merged the ADR in their judicial system allowing the two processes to work together simultaneously. ADR in China is duly conducted by the same court or Tribunal handling a matter during the hearing session such that a judge handling a matter in court can decide to switch from the litigation process to the settlement process. This process is peculiar to only China’s legal system. ADR was introduced in Tanzania by the Tanzania Civil Procedure Act Code (cap 33RE2002) and provides that the main alternative dispute resolution mechanism includes: arbitration which is commonly used in commercial disputes (Arbitration Act Ca 15 RE 2002). Apart from arbitration; mediation and reconciliation are also used prominently in Tanzania, especially in disputes related to individual interests. The country has made it compulsory for all legal practitioners to take a course on ADR to enhance their knowledge.
In Kenya, the constitution of Kenya (2010) has made ADR part of their legal system. It recognizes the use of Arbitration, mediation, conciliation and traditional mechanisms to resolve disputes or conflict. The constitution in Article 159, provides that in exercising judicial authority, an alternative dispute resolution mechanism shall be promoted.
The significance of ADR cannot be overemphasized as it provides an avenue to resolve disputes creatively and effectively by finding the technique that is most appropriate to the circumstances.
This study focuses on the ADR as a dispute settlement mechanism with emphasis on Mediation and Arbitration while highlighting factors involved in choosing the right ADR mechanism for your dispute.
Choosing the Right ADR Mechanism for your Dispute:
There are several methods of dispute resolution, these include mediation, conciliation and negotiation etc. and a good way to choose the right ADR mechanism for your dispute is to consider the individual characteristics that differentiate the processes, the fundamental principles of the processes and this depends on a number of factors, such as the nature of the dispute, the relationship between the parties, the desired outcome, cost and time constraints. For instance, the role confidentiality plays varies from process to process. For instance, in terms of confidentiality, most ADR processes have the confidentiality feature with mediation ranking the highest in terms of confidentiality while arbitration and early neutral evaluation are not generally considered to be confidential processes. Also, there’s a need for a well-learned, skilled and experienced neutral third party as officiating personnel is needed to anchor the resolution.
Below is an outline of the distinct features of each of the Alternative Dispute resolution mechanisms which serve as a guide to choosing the ADR mechanism
Mediation
The nature, principles and practice of mediation have given it a global preference as it has shown an average success rate of 70-80% in the Western world while in Africa it is even higher due to its predominance prior to Western influence. Before the advent of colonialism, the early Africans had always had an established method of conflict management with village elders and family heads resolving disputes and decisions which were binding on the feuding parties.
It is worthy of note that of all the ADR mechanisms, Mediation is the most widely used, especially being that it is most neutral, flexible, independent and effective. The Centre for Effective Dispute Resolution[7] gave an accepted definition of mediation as:
‘’…a flexible process conducted confidentially in which a neutral person assists the 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…’’
Therefore, mediation could be described as a process whereby neutral third-party disputants resolve their dispute wherein the disputing parties make the final decision themselves. It allows for more direct participation of those affected by the decision. It is a process that those involved can control. It is a private and confidential way of resolving disputes as the proceeding is conducted in private and the mediator will not divulge the outcome to anyone outside the mediation without the consent of those involved. Private meetings between the mediator and each party involved separately during mediation are confidential.
Despite its shortcomings, mediation can be a lot cheaper and quicker than a court hearing and in the event of a successful mediation, court time is saved too.
The sui generis nature of mediation makes it different from other forms of dispute resolution mechanisms, such that it emphasizes parties’ freedom in exploring and identifying a resolution that is mutual without involving a third party to proffer a solution. After a resolution has been attained by parties, they usually sign a settlement agreement that can later be enforced. Another quality of mediation is that it enhances permanent dispute resolution (Ogwora, E.T,2023) [8].
Mediation is non-adversarial, collaborative with more focus on cooperation rather than the win-lose dynamic seen in litigation/arbitration. It seeks to preserve relationships. In mediation, the focus is on interests, not rights. It emphasizes understanding the interests behind each party’s position rather than focusing solely on legal rights (Okeya I.O.2020)[9]. Despite its shortcomings, mediation has become a viable option in many systems. Where it is included in the contractual agreement that any dispute must be resolved through mediation, then it must be affected as a matter of policy. In England and Wales, it is a policy that parties in commercial litigation must mediate even if mediation is not included in their contract agreement (Ogwora, E.T,2023)[10]. UN has also adopted legislation on mediation procedures under the International Commercial Mediation (UN,2002)
Features of Mediation
In mediation, neutrality is a quality a mediator must possess to set aside his personal opinion, on the matter before him. It shows the absence of bias, prejudice or preference for either of the parties.
Neutrality simply means not taking sides, the act of not supporting or opposing.
According to Maiese[11], neutrality is being open-minded, not personally connected to the parties yet mutually acceptable to both parties where there is an unbiased relationship between the mediator and the parties. It is the mediator’s duty to facilitate the development of the conversation between the parties to enable them reach a mutually acceptable outcome (Bailey,2014)[12]. The mediator must avoid at all costs the zeal to offer advice or counsel to the parties. Mediators are ‘neutrals’ whose role does not determine the outcome of a dispute but is largely limited to facilitating the process and helping disputants arrive at a settlement. A mediator normally is a moral agent. While discharging his duties, he must ensure he intends that the good should prevail. The emphasis should be, not the perceived good but the real good. Any settlement by the mediator should be that which serves the interests and the rights of the parties.
Before commencing the process, the mediator must ensure to explain these neutrality features and process to the disputants to give them understanding and immerse themselves in the process. The mediator must use their skills and techniques as a mediator to support and empower the parties to reach a mutually acceptable outcome thereby promoting self-determination of disputants. Neutrality as a principle demands that the mediator has knowledge and theory of the code of ethics throughout the process of exploring alternatives for dispute resolution. In mediation, confidentiality is central, while it is not typically expected in arbitration or conciliation. Although the final decision in mediation is tentative, it could be confidential or not confidential.
Nature of Dispute: Cases appropriate for mediation are cases where both parties are open to negotiation and wish to preserve their relationship e.g. Disputes in commercial transactions, personal injury, divorce, workers compensation, business, family or community disputes.
Elements: party autonomy, impartiality, voluntariness and confidentiality are all distinct features of Mediation practice.
Procedure: A neutral mediator helps the parties communicate and reach a mutually agreeable solution but does not impose a decision. There are three main phases; pre-mediation (entails agreeing to mediate), mediation (direct/caucus meeting) and post-mediation (complying with the outcome).
Advantages: voluntary, flexible, self-determination, faster and less expensive. Confidential and allows for creative solutions.
Desired Outcome: appropriate if you want a collaborative process and are looking to resolve the dispute privately.
ARBITRATION
The Court has always been a dumping ground for cases making it too congested and marked by incessant delays. ADR was introduced to reduce the workload of the court and also help parties explore other settlement methods outside the court. In arbitration, there are panel of arbitrators or a sole arbitrator who functions like a judge. The arbitrator’s role is adjudicative which gives them authority to impose an award/solution. The arbitrator makes a final decision after hearing the arguments and evidence from both sides, much like a judge would, evaluating evidence and making a decision that the parties must follow which is binding and enforceable.
Arbitration is the oldest form of dispute resolution and has been on the rise in recent times because of its procedural outcome as well as flexibility of the process, such as the ability to choose arbitrators, seat of arbitration, and procedural rules, among others etc. In Nigeria, the Arbitration is governed by the Arbitration and Mediation Act 2023. Under Nigerian law, for an arbitration to take place, there must be an express agreement or a clause in an agreement giving it force. And for this agreement to be valid, it must be in writing and both parties must have mutually agreed, just like in every contract, to the procedure in respect of an arbitrable dispute.
Nature of Dispute: Appropriate for Commercial, contractual, complex disputes where parties want a binding decision but wish to avoid the formalities of court.
Key Elements: enforceability, Consent, Evidence and hearing, final and binding, efficiency, Arbitration Agreement
Procedure: Arbitration is more formal and structured, resembling a court proceeding with set rules for presenting evidence and witnesses wherein an arbitrator or panel of arbitrators listens to parties and makes a binding decision much more like a judge.
Advantages: Binding decision, more control over the selection of the arbitrator, private process often faster than litigation.
Desired Outcome: choose, if you need a definitive outcome, prefer confidentiality and want to avoid prolonged court proceedings.
NEGOTIATION
Black’s Law[13] dictionary defines Negotiation as a consensual bargaining process in which the parties attempt to reach an agreement on a disputed or potentially disputed matter. In other words, Negotiation is a means of dispute resolution where disputants explore settlement by discussion of issues. It is an informal process which offers parties a win-win situation. The parties are in total control of the process, without the intervention of third parties.
In no particular order, it is best to explore negotiation first in resolving disputes as it is faster and cheaper.
Nature of Dispute: appropriate for simple disputes where both parties are willing to resolve the matter themselves without third-party involvement.
Procedure: it is an informal process where the parties communicate directly and come to an agreement through mutual discussion.
Advantages: cost-effective, private, confidential, and the parties maintain control over the outcome.
Desired Outcome: consider if you have a good relationship with the other party and believe you can resolve the issue through discussion.
CONCILIATION:
Conciliation is a form of alternative dispute resolution similar to mediation but less formal than mediation, in which disputants submit to a neutral third party, who helps explore possible solutions to their dispute. The Conciliator identify the disputed issues, formulates options, explores alternatives and tries to settle. His role is advisory and the difference between conciliation and mediation is the degree of intervention by the third parties in settling disputes. The conciliator goes a step further by drawing up and proposing the terms of the agreement after hearing from both sides while exploring the opportunity for settlement and helping them reach an agreed settlement.[14].
It is a process whereby a neutral third party enables communication between the disputing parties in an attempt to help them resolve their differences. The process begins with the conciliator seeking the consent of parties to settle the dispute amicably by conciliation; if the response is positive, a joint meeting with the parties is scheduled after which, the conciliator meets each party separately and privately to discuss the matter with confidence and find out each party’s point of view. Moving on, the conciliator carefully considers each party’s evidence and submissions as compared to the other Party’s. As an expert in the field, he gives suggestions and advice on the issue, draws up and proposes the terms of settlement which may facilitate settlement between parties (Ezejiofor. G)[15].
The Institute of Chartered Mediators and Conciliators (ICMC) is the institutional framework for the practice of mediation and conciliation in Nigeria and also, the professional body of practitioners that regulates Mediation and Conciliation practice in Nigeria. The Institute of Chartered Mediators and Conciliators (ICMC) in their advisory capacity, encourages the adoption of Mediation and Conciliation as a primary tool for addressing disputes. The conciliator plays a proactive role in bringing about a settlement between parties as captured under the UNCITRAL Model Law.
Nature of Dispute: appropriate for employment, commercial, or family disputes where there is need for an expert to guide disputants towards resolution but without making a binding decision.
Procedure: A conciliator, often an expert in the field, assists the parties in reaching a settlement but does not issue a binding decision.
Advantages: informal, voluntary, private, involves exerting guidance and allows parties to maintain control over the final decision.
Desired Outcome: consider if you need expert input to help resolve the dispute but prefer to maintain control over the outcome.
Factors to consider when Choosing an ADR Mechanism:
- Nature of the Dispute: For example, mediation may be better for emotionally charged disputes, while arbitration may suit more technical or complex cases.
- Relationship between Parties: if maintaining the relationship is important, mediation or negotiation may be ideal.
- Cost and Time: some mechanisms, like arbitration, can be costly, while others like negotiation can be more affordable.
- Desired Outcome: if you want a binding decision, arbitration may be suitable, while if you prefer to maintain control, mediation might work better.
- Confidentiality: Most ADR processes are private, unlike court litigation, which is often public.
- Enforceability: Arbitration awards are generally enforceable in court, while negotiated or mediated agreements depend on mutual commitment.
By assessing these factors, you can determine the best ADR mechanism for resolving your specific dispute.
Conclusion
ADR has become an indispensable mechanism in administering the justice system in Nigeria.
Over the years, the practice and operations of ADR have become acceptable and essential in resolving commercial disputes. With the popularity and acceptance of these methods of dispute resolution and their structure in place, there is no doubt that Nigeria is equipping itself to face the escalating commercial dispute resulting from the growth in commercial business activities and increase in international trade and investment as conflicts, if not resolved, makes it difficult for individuals to carry on business activity together.
REFERENCES
- A.F. Adenekan(2020). Alternative Dispute Resolution in Nigeria
- Access to Justice,1995
- Bailey, P. (2014). Neutrality in Mediation: An Ambiguous Ethical Value. Journal of Mediation and Applied Conflict Analysis,2014, vol 1, No.1
- Barret J.T (2019), ‘A History of Alternative Dispute Resolution’ wcpa>servlet> DCARead>
- CEDR (2010). Available at https://www.cedr.com/CEDR_solve/services/mediation.ph.last visited 13/9/2024
- Dispute Resolution in the Digital Age: The Rise of Online Arbitration and Mediation.
- G. Ezejiofor, The Law of Arbitration in Nigeria, (1997, Longman) 7
- H. Brooke, ”Mediation in personal injury and clinical negligence cases”,(2008)4, Journal of Personal Injury Law.
- Maiese,M(2005).’’Neutrality.’’ Beyond Intractability.Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado.
- Ogwora, E.T. (2023). Reengineering the Prevention and Management of Conflict through Alternative Dispute Resolution Mechanism: A Critical Analysis of Mediation, its Nature, Fundamental Principles and Approaches.Journal of African Interdisciplinary Studies, 7(6), 40-65.
- Okeya I.O. (2020). Critical examination of alternative dispute resolution. International Journal of Research and Review;7(11): 95-105.
- The Impact of Technology on Arbitration: Opportunities and Challenges
- The Role of Arbitration in Ensuring Fairness and Impartiality in Arbitral Proceedings
- Ubanyionwu C.J (2023). Analysis of the Evolution of Arbitration and other Alternative Dispute Resolution Modes in Nigeria; African Journal of Law and Human Rights (AJLHR)
[1] J.T. Barret, ‘A History of Alternative Dispute Resolution’ wcpa>servlet> DCARead> accessed5 September 2019
[2] (1998) 4 NWLR Pt. 90, 554 at 586
[3] Ibid. Barret (n2)
[4] Access to Justice,1995
[5] H. Brooke (2008), ‘’Mediation in personal injury and clinical negligence cases’’, Journal of Personal Injury Law.
[6] A.F.Adenekan(2020). Alternative Dispute Resolution in Nigeria
[7] CEDR (2010). Available at https://www.cedr.com/CEDR_solve/services/mediation.ph.last visited 13/9/2024
[8] Ogwora, E.T. (2023). Reengineering the Prevention and Management of Conflict through Alternative Dispute Resolution Mechanism: A Critical Analysis of Mediation, its Nature, Fundamental Principles and Approaches. Journal of African Interdisciplinary Studies, 7(6), 40-65.
[9] Okeya I.O. (2020). Critical examination of alternative dispute resolution. International Journal of Research and Review;7(11): 95-105.
[10] Op.cite
[11] Maiese,M(2005).’’Neutrality.’’ Beyond Intractability.Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado.
[12] Bailey,P.(2014). Neutrality in Mediation: An Ambiguous Ethical Value. Journal of Mediation and Applied Conflict Analysis,2014, vol 1, No.1
[13] B.A. Garner
[14] Ubanyionwu C.J (2023). Analysis of the Evolution of Arbitration and other Alternative Dispute Resolution Modes in Nigeria; African Journal of Law and Human Rights (AJLHR)
[15] G. Ezejiofor (1997), The Law of Arbitration in Nigeria, Longman 7
- Mediation vs Arbitration: Choosing the Right ADR Mechanism for your Dispute
Introduction
Mediation and Arbitration are Alternative Dispute Resolution Mechanisms, each with its different method of administration. Right from inception and time immemorial, conflict has always been a part of human existence, conflict to some extent is not the problem but means to conflict resolution, management, and preservation of peace and security, hence the need for an efficient dispute resolution mechanism. Just as conflict has been a part of human existence, the alternative dispute resolution mechanism, although informal in practice, has now become a global and formal phenomenon for dispute resolution. The United Nations Charter in Article 33 posits that conflict management as well as conflict resolution must involve alternative dispute resolution mechanisms. Parties to any dispute must first of all seek a solution by negotiation, enquiry, arbitration, conciliation, judicial settlement or resort to regional agencies or other peaceful means of their choice (UN Charter 1945).
These ADR methods/mechanisms are processes designed to assist parties in dispute resolution as opposed to the traditional court adjudication, they don’t supplant court adjudication but rather, supplement it.
Over time, the process and complexity of court litigation have become more time-consuming, expensive and cumbersome leading to delays in justice delivery. On the other hand, the ever-increasing number of cases in courts is quite alarming. There may be claims involving small sums, which may not be worth the cost of litigation. All these issues and more, have led to the development of alternative methods of resolving disputes otherwise referred to as ADR (Barret 2019)[1]. Although these methods are often thought of as new ways of resolving disputes, ADR processes are not new in Africa, our traditional society settled disputes by referring to the village and traditional chiefs and elders and other respected members of the society it is deep-rooted in human history, and it has long played a crucial role in cultures across the globe. In the case of Okpururu v. Okpokam, Oguntade JCA (as he then was) observed that; ‘… in the pre-colonial times and before the advent of the regular courts, our people (Nigerians) certainly had a simple and inexpensive way of adjudicating over dispute between them. They referred to the elders or to a body set up for that purpose…’[2]
In the pre-colonial Yoruba city, disputes were settled by the mogaji, the bale, the lineage heads, and the elderly heads men of the district. The elders have an arsenal of techniques for dispute resolution, namely using proverbs, persuasions, subtle blackmails, precedents, and even magic. The elders have adjudicatory powers to settle disputes and these powers are cultural and can also threaten disputants with social ex-communication or emotional blackmail.[3]. Lord Woolf in his Interim Report[4], highlights the global status of ADR and how it has been an indispensable tool in dispute resolution. Litigation might not always be the best option hence the need for more awareness of ADR (H. Brooke (2008),)[5].
Alternative Dispute Resolution is fully recognized in the Nigerian Legal System, the 1999 Constitution of the Federal Republic of Nigeria (as amended) in section 19(d) provides for the settlement of disputes by Arbitration, Mediation, Conciliation, Negotiation and Adjudication. The Arbitration and Mediation Act 2023 established a legal framework for arbitration and mediation settlement in Nigeria. The High Court Rules of various states referred cases to ADR, Order 19 of the Federal High Court (Civil procedure) Rules of Nigeria provides for supportive court interventions in arbitral proceedings. Rule 15(3)(d) of the Rules of Professional Conduct for Legal Practitioners mandates Lawyers to attempt an alternative dispute resolution before bringing any matter before the court for a hearing (A.F. Adenekan 2020)[6].
ADR has received global status in almost all parts of the world, although, it is not all types of alternative dispute mechanisms that have received recognition. For instance, in the US, the ADR became formally recognized after independence with the case between the Dutch and British regarding patents and trademarks. Mediation is more popular in America due to its nature and procedural easiness in dispute resolution. In the same vein, we see arbitration as an indispensable mechanism permeating the spaces of Russia where the country adopted arbitration as a form of ADR. In Russia, arbitration is mainly used in dealing with disputes arising mainly from commercial and business matters. Mediation and conciliation are also used alongside arbitration in settling disputes revolving around an individual’s interests and rights.
In Australia, the majority of the population sees litigation as inefficient for want of cost and time-bound. And as a result of that, many issues on commercials are resolved using mediation and negotiation. In Australia, mediation is more used than any form of ADR reason being that it allows parties to agree to a settlement easily and preserve lasting relationships.
The case is entirely different with the People’s Republic of China. It has modified the application of ADR and looks different from what is obtainable in other countries in the West. It merged the ADR in their judicial system allowing the two processes to work together simultaneously. ADR in China is duly conducted by the same court or Tribunal handling a matter during the hearing session such that a judge handling a matter in court can decide to switch from the litigation process to the settlement process. This process is peculiar to only China’s legal system. ADR was introduced in Tanzania by the Tanzania Civil Procedure Act Code (cap 33RE2002) and provides that the main alternative dispute resolution mechanism includes: arbitration which is commonly used in commercial disputes (Arbitration Act Ca 15 RE 2002). Apart from arbitration; mediation and reconciliation are also used prominently in Tanzania, especially in disputes related to individual interests. The country has made it compulsory for all legal practitioners to take a course on ADR to enhance their knowledge.
In Kenya, the constitution of Kenya (2010) has made ADR part of their legal system. It recognizes the use of Arbitration, mediation, conciliation and traditional mechanisms to resolve disputes or conflict. The constitution in Article 159, provides that in exercising judicial authority, an alternative dispute resolution mechanism shall be promoted.
The significance of ADR cannot be overemphasized as it provides an avenue to resolve disputes creatively and effectively by finding the technique that is most appropriate to the circumstances.
This study focuses on the ADR as a dispute settlement mechanism with emphasis on Mediation and Arbitration while highlighting factors involved in choosing the right ADR mechanism for your dispute.
Choosing the Right ADR Mechanism for your Dispute:
There are several methods of dispute resolution, these include mediation, conciliation and negotiation etc. and a good way to choose the right ADR mechanism for your dispute is to consider the individual characteristics that differentiate the processes, the fundamental principles of the processes and this depends on a number of factors, such as the nature of the dispute, the relationship between the parties, the desired outcome, cost and time constraints. For instance, the role confidentiality plays varies from process to process. For instance, in terms of confidentiality, most ADR processes have the confidentiality feature with mediation ranking the highest in terms of confidentiality while arbitration and early neutral evaluation are not generally considered to be confidential processes. Also, there’s a need for a well-learned, skilled and experienced neutral third party as officiating personnel is needed to anchor the resolution.
Below is an outline of the distinct features of each of the Alternative Dispute resolution mechanisms which serve as a guide to choosing the ADR mechanism
Mediation
The nature, principles and practice of mediation have given it a global preference as it has shown an average success rate of 70-80% in the Western world while in Africa it is even higher due to its predominance prior to Western influence. Before the advent of colonialism, the early Africans had always had an established method of conflict management with village elders and family heads resolving disputes and decisions which were binding on the feuding parties.
It is worthy of note that of all the ADR mechanisms, Mediation is the most widely used, especially being that it is most neutral, flexible, independent and effective. The Centre for Effective Dispute Resolution[7] gave an accepted definition of mediation as:
‘’…a flexible process conducted confidentially in which a neutral person assists the 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…’’
Therefore, mediation could be described as a process whereby neutral third-party disputants resolve their dispute wherein the disputing parties make the final decision themselves. It allows for more direct participation of those affected by the decision. It is a process that those involved can control. It is a private and confidential way of resolving disputes as the proceeding is conducted in private and the mediator will not divulge the outcome to anyone outside the mediation without the consent of those involved. Private meetings between the mediator and each party involved separately during mediation are confidential.
Despite its shortcomings, mediation can be a lot cheaper and quicker than a court hearing and in the event of a successful mediation, court time is saved too.
The sui generis nature of mediation makes it different from other forms of dispute resolution mechanisms, such that it emphasizes parties’ freedom in exploring and identifying a resolution that is mutual without involving a third party to proffer a solution. After a resolution has been attained by parties, they usually sign a settlement agreement that can later be enforced. Another quality of mediation is that it enhances permanent dispute resolution (Ogwora, E.T,2023) [8].
Mediation is non-adversarial, collaborative with more focus on cooperation rather than the win-lose dynamic seen in litigation/arbitration. It seeks to preserve relationships. In mediation, the focus is on interests, not rights. It emphasizes understanding the interests behind each party’s position rather than focusing solely on legal rights (Okeya I.O.2020)[9]. Despite its shortcomings, mediation has become a viable option in many systems. Where it is included in the contractual agreement that any dispute must be resolved through mediation, then it must be affected as a matter of policy. In England and Wales, it is a policy that parties in commercial litigation must mediate even if mediation is not included in their contract agreement (Ogwora, E.T,2023)[10]. UN has also adopted legislation on mediation procedures under the International Commercial Mediation (UN,2002)
Features of Mediation
In mediation, neutrality is a quality a mediator must possess to set aside his personal opinion, on the matter before him. It shows the absence of bias, prejudice or preference for either of the parties.
Neutrality simply means not taking sides, the act of not supporting or opposing.
According to Maiese[11], neutrality is being open-minded, not personally connected to the parties yet mutually acceptable to both parties where there is an unbiased relationship between the mediator and the parties. It is the mediator’s duty to facilitate the development of the conversation between the parties to enable them reach a mutually acceptable outcome (Bailey,2014)[12]. The mediator must avoid at all costs the zeal to offer advice or counsel to the parties. Mediators are ‘neutrals’ whose role does not determine the outcome of a dispute but is largely limited to facilitating the process and helping disputants arrive at a settlement. A mediator normally is a moral agent. While discharging his duties, he must ensure he intends that the good should prevail. The emphasis should be, not the perceived good but the real good. Any settlement by the mediator should be that which serves the interests and the rights of the parties.
Before commencing the process, the mediator must ensure to explain these neutrality features and process to the disputants to give them understanding and immerse themselves in the process. The mediator must use their skills and techniques as a mediator to support and empower the parties to reach a mutually acceptable outcome thereby promoting self-determination of disputants. Neutrality as a principle demands that the mediator has knowledge and theory of the code of ethics throughout the process of exploring alternatives for dispute resolution. In mediation, confidentiality is central, while it is not typically expected in arbitration or conciliation. Although the final decision in mediation is tentative, it could be confidential or not confidential.
Nature of Dispute: Cases appropriate for mediation are cases where both parties are open to negotiation and wish to preserve their relationship e.g. Disputes in commercial transactions, personal injury, divorce, workers compensation, business, family or community disputes.
Elements: party autonomy, impartiality, voluntariness and confidentiality are all distinct features of Mediation practice.
Procedure: A neutral mediator helps the parties communicate and reach a mutually agreeable solution but does not impose a decision. There are three main phases; pre-mediation (entails agreeing to mediate), mediation (direct/caucus meeting) and post-mediation (complying with the outcome).
Advantages: voluntary, flexible, self-determination, faster and less expensive. Confidential and allows for creative solutions.
Desired Outcome: appropriate if you want a collaborative process and are looking to resolve the dispute privately.
ARBITRATION
The Court has always been a dumping ground for cases making it too congested and marked by incessant delays. ADR was introduced to reduce the workload of the court and also help parties explore other settlement methods outside the court. In arbitration, there are panel of arbitrators or a sole arbitrator who functions like a judge. The arbitrator’s role is adjudicative which gives them authority to impose an award/solution. The arbitrator makes a final decision after hearing the arguments and evidence from both sides, much like a judge would, evaluating evidence and making a decision that the parties must follow which is binding and enforceable.
Arbitration is the oldest form of dispute resolution and has been on the rise in recent times because of its procedural outcome as well as flexibility of the process, such as the ability to choose arbitrators, seat of arbitration, and procedural rules, among others etc. In Nigeria, the Arbitration is governed by the Arbitration and Mediation Act 2023. Under Nigerian law, for an arbitration to take place, there must be an express agreement or a clause in an agreement giving it force. And for this agreement to be valid, it must be in writing and both parties must have mutually agreed, just like in every contract, to the procedure in respect of an arbitrable dispute.
Nature of Dispute: Appropriate for Commercial, contractual, complex disputes where parties want a binding decision but wish to avoid the formalities of court.
Key Elements: enforceability, Consent, Evidence and hearing, final and binding, efficiency, Arbitration Agreement
Procedure: Arbitration is more formal and structured, resembling a court proceeding with set rules for presenting evidence and witnesses wherein an arbitrator or panel of arbitrators listens to parties and makes a binding decision much more like a judge.
Advantages: Binding decision, more control over the selection of the arbitrator, private process often faster than litigation.
Desired Outcome: choose, if you need a definitive outcome, prefer confidentiality and want to avoid prolonged court proceedings.
NEGOTIATION
Black’s Law[13] dictionary defines Negotiation as a consensual bargaining process in which the parties attempt to reach an agreement on a disputed or potentially disputed matter. In other words, Negotiation is a means of dispute resolution where disputants explore settlement by discussion of issues. It is an informal process which offers parties a win-win situation. The parties are in total control of the process, without the intervention of third parties.
In no particular order, it is best to explore negotiation first in resolving disputes as it is faster and cheaper.
Nature of Dispute: appropriate for simple disputes where both parties are willing to resolve the matter themselves without third-party involvement.
Procedure: it is an informal process where the parties communicate directly and come to an agreement through mutual discussion.
Advantages: cost-effective, private, confidential, and the parties maintain control over the outcome.
Desired Outcome: consider if you have a good relationship with the other party and believe you can resolve the issue through discussion.
CONCILIATION:
Conciliation is a form of alternative dispute resolution similar to mediation but less formal than mediation, in which disputants submit to a neutral third party, who helps explore possible solutions to their dispute. The Conciliator identify the disputed issues, formulates options, explores alternatives and tries to settle. His role is advisory and the difference between conciliation and mediation is the degree of intervention by the third parties in settling disputes. The conciliator goes a step further by drawing up and proposing the terms of the agreement after hearing from both sides while exploring the opportunity for settlement and helping them reach an agreed settlement.[14].
It is a process whereby a neutral third party enables communication between the disputing parties in an attempt to help them resolve their differences. The process begins with the conciliator seeking the consent of parties to settle the dispute amicably by conciliation; if the response is positive, a joint meeting with the parties is scheduled after which, the conciliator meets each party separately and privately to discuss the matter with confidence and find out each party’s point of view. Moving on, the conciliator carefully considers each party’s evidence and submissions as compared to the other Party’s. As an expert in the field, he gives suggestions and advice on the issue, draws up and proposes the terms of settlement which may facilitate settlement between parties (Ezejiofor. G)[15].
The Institute of Chartered Mediators and Conciliators (ICMC) is the institutional framework for the practice of mediation and conciliation in Nigeria and also, the professional body of practitioners that regulates Mediation and Conciliation practice in Nigeria. The Institute of Chartered Mediators and Conciliators (ICMC) in their advisory capacity, encourages the adoption of Mediation and Conciliation as a primary tool for addressing disputes. The conciliator plays a proactive role in bringing about a settlement between parties as captured under the UNCITRAL Model Law.
Nature of Dispute: appropriate for employment, commercial, or family disputes where there is need for an expert to guide disputants towards resolution but without making a binding decision.
Procedure: A conciliator, often an expert in the field, assists the parties in reaching a settlement but does not issue a binding decision.
Advantages: informal, voluntary, private, involves exerting guidance and allows parties to maintain control over the final decision.
Desired Outcome: consider if you need expert input to help resolve the dispute but prefer to maintain control over the outcome.
Factors to consider when Choosing an ADR Mechanism:
- Nature of the Dispute: For example, mediation may be better for emotionally charged disputes, while arbitration may suit more technical or complex cases.
- Relationship between Parties: if maintaining the relationship is important, mediation or negotiation may be ideal.
- Cost and Time: some mechanisms, like arbitration, can be costly, while others like negotiation can be more affordable.
- Desired Outcome: if you want a binding decision, arbitration may be suitable, while if you prefer to maintain control, mediation might work better.
- Confidentiality: Most ADR processes are private, unlike court litigation, which is often public.
- Enforceability: Arbitration awards are generally enforceable in court, while negotiated or mediated agreements depend on mutual commitment.
By assessing these factors, you can determine the best ADR mechanism for resolving your specific dispute.
Conclusion
ADR has become an indispensable mechanism in administering the justice system in Nigeria.
Over the years, the practice and operations of ADR have become acceptable and essential in resolving commercial disputes. With the popularity and acceptance of these methods of dispute resolution and their structure in place, there is no doubt that Nigeria is equipping itself to face the escalating commercial dispute resulting from the growth in commercial business activities and increase in international trade and investment as conflicts, if not resolved, makes it difficult for individuals to carry on business activity together.
REFERENCES
- A.F. Adenekan(2020). Alternative Dispute Resolution in Nigeria
- Access to Justice,1995
- Bailey, P. (2014). Neutrality in Mediation: An Ambiguous Ethical Value. Journal of Mediation and Applied Conflict Analysis,2014, vol 1, No.1
- Barret J.T (2019), ‘A History of Alternative Dispute Resolution’ wcpa>servlet> DCARead>
- CEDR (2010). Available at https://www.cedr.com/CEDR_solve/services/mediation.ph.last visited 13/9/2024
- Dispute Resolution in the Digital Age: The Rise of Online Arbitration and Mediation.
- G. Ezejiofor, The Law of Arbitration in Nigeria, (1997, Longman) 7
- H. Brooke, ”Mediation in personal injury and clinical negligence cases”,(2008)4, Journal of Personal Injury Law.
- Maiese,M(2005).’’Neutrality.’’ Beyond Intractability.Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado.
- Ogwora, E.T. (2023). Reengineering the Prevention and Management of Conflict through Alternative Dispute Resolution Mechanism: A Critical Analysis of Mediation, its Nature, Fundamental Principles and Approaches.Journal of African Interdisciplinary Studies, 7(6), 40-65.
- Okeya I.O. (2020). Critical examination of alternative dispute resolution. International Journal of Research and Review;7(11): 95-105.
- The Impact of Technology on Arbitration: Opportunities and Challenges
- The Role of Arbitration in Ensuring Fairness and Impartiality in Arbitral Proceedings
- Ubanyionwu C.J (2023). Analysis of the Evolution of Arbitration and other Alternative Dispute Resolution Modes in Nigeria; African Journal of Law and Human Rights (AJLHR)
[1] J.T. Barret, ‘A History of Alternative Dispute Resolution’ wcpa>servlet> DCARead> accessed5 September 2019
[2] (1998) 4 NWLR Pt. 90, 554 at 586
[3] Ibid. Barret (n2)
[4] Access to Justice,1995
[5] H. Brooke (2008), ‘’Mediation in personal injury and clinical negligence cases’’, Journal of Personal Injury Law.
[6] A.F.Adenekan(2020). Alternative Dispute Resolution in Nigeria
[7] CEDR (2010). Available at https://www.cedr.com/CEDR_solve/services/mediation.ph.last visited 13/9/2024
[8] Ogwora, E.T. (2023). Reengineering the Prevention and Management of Conflict through Alternative Dispute Resolution Mechanism: A Critical Analysis of Mediation, its Nature, Fundamental Principles and Approaches. Journal of African Interdisciplinary Studies, 7(6), 40-65.
[9] Okeya I.O. (2020). Critical examination of alternative dispute resolution. International Journal of Research and Review;7(11): 95-105.
[10] Op.cite
[11] Maiese,M(2005).’’Neutrality.’’ Beyond Intractability.Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado.
[12] Bailey,P.(2014). Neutrality in Mediation: An Ambiguous Ethical Value. Journal of Mediation and Applied Conflict Analysis,2014, vol 1, No.1
[13] B.A. Garner
[14] Ubanyionwu C.J (2023). Analysis of the Evolution of Arbitration and other Alternative Dispute Resolution Modes in Nigeria; African Journal of Law and Human Rights (AJLHR)
[15] G. Ezejiofor (1997), The Law of Arbitration in Nigeria, Longman 7
