ADR (Alternative Dispute Resolution) as the name suggests is an alternative to litigation in court. Alternative dispute resolution (ADR) incorporates processes like mediation, negotiation and arbitration in solving disputes between parties.
The rise of ADR processes in Nigeria has been perceived by many as god-send to litigants who have all been stuck in the motionless train of justice in Nigeria. Many have regarded it as the elixir to jump start Nigerian Justice System where suspects awaiting trial can be detained longer than the maximum penalty for the suspected crime and where civil cases can drag on for years until the original litigants are deceased and their children are substituted for them.
ADR is currently practiced in Lagos State (although about 12 states are seeking to implement it) at the Lagos Multi Door Court House (LMDC) where cases are referred from the Island High Court in Lagos State during a settlement week. According to the organizers, during a settlement week, there are no judges at the court venues, the docks remain empty and the opposing parties are gathered around a table where mediators try to resolve the disputes.
In an interview with Aljazeera, Caroline Etuk, the MHDC- director explained how ADR really worked at the LMDC in the following words:
In court, a judge will decide against one party and in favour of the other, but in mediation, both parties are responsible for the outcome and because of that no party can come out a loser. Both have to be able to live with it and agree to forgo further dispute. It is win-win
Another mediator, Oyelade had this to say “to me it comes naturally. When I see a conflict I feel like settling it balancing all interests. I feel successful when at the end of the day everyone goes home happy and the parties even maintain their relationship”
While the traditional system of justice views litigants as adversaries, in a typical zero-sum game, with a win for one side representing a corresponding loss for the other side, ADR on the other hand seeks a “win-win” for both sides to the dispute. This result could never be achieved within the conventional machinery of justice in Nigeria (certainly not through litigation in courts). This would require that lawyers play the unfamiliar roles of peacemaker between litigants outside court.
They are to possess strong communication skills so that they can communicate their perspective in a respectful, non-contentious, non-adversarial way. They have to learn how to express themselves firmly but not offensively and most importantly be able to listen to the other side. These skills are believed to aid the lawyer in creating an environment of trust so the other party can feel comfortable opening up and working towards a mutually beneficial solution that stops short of full blown litigation.
The bottom line is that the well-worn path to litigation in court will become less threaded. This would immensely benefits clients as it would mean there will be less adjournments, and the protracted timeline of justice in Nigeria will expedite. At the Multi- Court House, cases can be settled within a matter of weeks to a few months whereas in actual litigation, it could take between 3 to 7 years and more for judgment to be delivered.
While these exploits of ADR processes in Nigeria has brought joy to many, lawyers cannot show the same enthusiasm. And guess why? It would make inroads into their core functions as problem solvers. They dread ADR for the following reasons:
(1) It is an unfamiliar concept
While ADR processes have become rife overseas as most foreign law schools have added ADR courses and clinics to their law school curriculum to improve lawyer’s skills in the area and help them gain greater familiarity with ADR concepts. Nigerian law universities can’t boast of having done same. The majority of law universities have yet to introduce ADR courses to law students with the result that students graduate barely acquainted with ADR concepts. People would ordinarily dread what they don’t know.
(2) It means less legal fees
In the traditional adversarial system of justice in Nigeria, court cases are usually very indefinite and could spill into years before justice is delivered. And with the appeal option always beckoning, litigants may decide to pursue cases to the highest court of the land. This could mean a windfall in legal fees for lawyers at every stage of representation. But with the introduction of ADR processes in court cases, there will be speedy trials and less adjournments and this would drastically reduce the earnings of lawyers.
(3) It means less autonomy for lawyers
In normal litigation in court, lawyers enjoy autonomy in the way they conduct the cases of clients but with the emergence of ADR processes in Nigeria, the antonym of lawyers have been usurped by officious mediators who act as the main players in the settlement process. Lawyers are the very most play mere advisory roles to their clients in the course of negotiating settlements.
(4) The outcomes are uncertain
As earlier reiterated the outcome of a favorable “win-win” settlement in mediation, depends a lot on the “willingness” of the parties to reach an amicable agreement. The fall out of this is that parties can pull out of the negotiation table at any time before settlement without any threat of sanction. This may not have been the case in conventional litigation where the courts can make binding orders that effectively put cases to bed.
(5) It is complex
The fact that mediation means speedy trials does not imply the process of reaching a settlement would be plain sailing. Mediation has its own inherent complexities. The fact that there exist no hard and fast rules governing the conduct of mediation like the rules of court means mediators have to take the initiative every time in how the disputes are settled. Thus there may arise cases where they may run out of creative steam arising from the complexities of a case. We can’t always guarantee they will be as inventive as ever.
Patrick Herbert is the Editor-in-Chief and founder of Law Student Hub. He is an LL.B. Law graduate from the University of Benin, Nigeria. He’s a life enthusiast, a budding writer and internet entrepreneur. Patrick is deeply passionate about law and research and has inspired many with his thought-provoking articles. To get in touch, follow him on social media.