Disputes are inevitable, and as such, it is important that disputes are resolved in an amicable manner with the aim of saving the relationship between the parties. The general perception is that the traditional mode of resolving disputes is through litigation. There, however, exists other Alternative Disputes Resolution (ADR) mechanisms in resolving disputes other than litigation. ADR mechanism can be as simple as a negotiation between two people or; complex arbitration involving taking evidence, calling witnesses, and making awards.
Nowadays, the Court Rules now require lawyers to explore ADR mechanisms in the settlement of disputes before resorting to litigation. Order 2, Rule 2(e) of the Federal Capital Territory High Court Civil Procedure Rules 2019 requires the pre-action Counseling certificate as one of the documents to accompany the writ of summon. The certificate shall be deposed to by the Legal Practitioner of the Claimant stating that he has advised the claimant on the relative strength and weaknesses of his case and informed him of the possibility of resolving the disputes using ADR and undertaking to bear liable for a frivolous suit.[i] This procedure can also be found under the High Court of Lagos State (Civil Procedure) Rules 2019.
There are different ADR mechanisms available for disputants to resolve their differences. In this article, some of these ADR mechanisms and their procedure shall be reviewed.
Negotiation is a problem-solving process in which two or more people voluntarily discuss their differences and attempt to reach a joint decision on their common concerns.[ii] Negotiation does not include a third party. However, the parties involved in the dispute can be more than two. Thus, the parties resolve their disputes without the interference of any other person. A successful negotiation usually resorts in an agreement. Where the parties to the agreement are already in court, and the dispute is a civil dispute, the agreement is called the terms of the settlement. The parties can file their terms of settlement for the court to adopt as a consent judgment. Negotiation can also take place in criminal proceedings in the form of plea bargaining or sentence bargaining.[iii] The roles of lawyers in negotiation include acting as evaluators, negotiators, or advisers.
There is no standard procedure for negotiation. The parties decide the procedure that is best suited for their needs and circumstances. However, the parties may adopt the framework recommended by Brayne and Grimes.[iv] The procedures highlighted in the framework are:
- Ice breaking
- Setting the agenda for the negotiation
- Conclusion of the agreement
Mediation involves a neutral third party who facilitates discussion between the disputing parties. Mediation helps the parties to preserve their relationship. The mediator helps the parties to reach an amicable settlement and does not impose his own view or decision on the parties. The mediator can make suggestions, but the parties are not bound to accept his suggestions. The mediator facilitates discussion between the parties. Mediation can be formal or informal. A formal mediation usually includes a pre-mediation agreement and the discovery of documents.[v] The procedures for settling a dispute via mediation are:
- Preparation Stage: this involves the appointment of a mediator, scheduling the mediation session, signing of the pre-mediation agreement, and request for an adjournment to enable parties to explore settlement via mediation and personal meetings with the parties.
- Opening Stage: at this stage, the mediator gives an opening statement which usually includes introducing himself, stating his role, the rules of engagement, the confidentiality of their information, and establishing his impartiality.
- Agenda/Issue Setting Stage: this is where each party narrates his own fact of the disputes. The mediator decides who should go first. The mediator highlights the points of agreement and distills the issues from the facts as narrated, the body language, and the emotions of the parties. The mediator expresses the issues to the parties in simple terms, the mediator may arrange a private meeting with a party to elicit more facts and discuss available solutions.
- Bargaining stage: this is where the mediator engages the parties on the issues and proposes possible solutions. The parties discuss the issues and proposed solutions. The parties are not bound to accept any of the proposed solutions. The role of the mediator at this stage is to coordinate the discussion and persuade the parties to make concessions.
- Conclusion: at this stage, the parties reach an agreement on the issues. The mediator will encourage the parties to reduce the agreement into writing. If the matter is in court, the written agreement can be filed as terms of settlement for the court to adopt as its judgment. Where the parties do not reach an agreement on all or some of the issues raised, the mediator may remind them of their best alternative to a negotiated agreement (BATNA) and Worst Alternative to a Negotiated Agreement (WATNA) and implore the parties to seek other means of resolving their dispute.
Arbitration is an adversarial method of dispute resolution where the parties appoint an arbitrator or arbitrators to adjudicate their disputes. Arbitration is akin to litigation in terms of procedure. Arbitration is regulated by the Arbitration and Conciliation Act (ACA)[vi] and the Lagos State Arbitration Law 2009.
The procedures of arbitration are:
- Initiating the Arbitration: arbitration proceedings are initiated with notice of arbitration. The arbitration is deemed to have commenced the day the other party receives the notice of arbitration.
- Appointment of Arbitrators: the parties are required to appoint the arbitrator(s) in accordance with their arbitration agreement. Where the parties do not make provision for the appointment of an arbitrator, the default provision in the Arbitration and Conciliation Act or the Lagos State Arbitration Law is applicable.[vii] The arbitrator need not be a lawyer.
- Preliminary Meeting: the arbitrator may meet with the parties before the submission of statements of claim and defense to discuss the procedure to adopt for hearing the disputes.
- Submission of statement of claims and statement of defense: the party initiating the arbitration is required to submit a statement of claim containing the facts supporting his case, the issues and remedies sought, and the name and address of the parties. The point of claim shall be accompanied by a copy of the contract, all relevant documents, and the arbitration agreement (if it is not contained in the arbitration agreement).
The other party shall submit a statement of defense containing the same particulars and accompanied by the documents the party deems relevant. Both statements shall be submitted to the arbitrator and any other party to the proceeding.
- Hearing: at this stage, the arbitrators will hear the witnesses of the parties. The arbitrator can adopt the procedure that suits him as far as he treats the parties equally,[viii] the arbitrator may hold an oral presentation of evidence, conduct the proceeding on the basis of documents or take both oral and documentary evidence.[ix]
A party may present his case personally or through a legal practitioner of his choice. The arbitrator may appoint an expert to assist in any issue that requires expert knowledge. The terms of reference of the experts must be to the parties. Parties are free to interrogate the report of the expert and present expert witnesses to corroborate or contradict the opinion of the expert.
- Award: it is the decision of the arbitrator after hearing the parties. An arbitral award is final and binding on the parties. The award shall be in writing and signed by the arbitrator containing the names of the parties, the date it was made, the place it was made, and the reasons for the award.
Conciliation involves a situation where a third party, known as a conciliator, is obliged to use his best endeavor to bring the parties in dispute to a voluntary settlement of their disputes.[x] Conciliation is commonly used in disputes involving government agencies. Conciliation is regulated by ACA.
The procedures for conciliation are as follows.
- Notice of Conciliation: the party initiating the conciliation is required to send notice of conciliation to the other party with a brief fact of the case.
- Appointment of Conciliator: the parties may appoint one or three conciliators.
- Hearing: the conciliator will listen to the parties
- Terms of settlement: after the hearing, the conciliators will present the terms of the settlement. The parties are free to accept or reject the terms of the settlement. Where the parties reject the terms of the settlement, the conciliator can recommend litigation or arbitrator.[xi] Where the parties accepted the terms of the settlement, they are bound by it.
ADR mechanisms are well-suited for resolving all kinds of disputes. This article highlights the most used ADR mechanisms and the procedure for each mechanism. Considering, the overwhelming advantages of ADR mechanisms and the immense benefit to investors, among others, legal practitioners and disputants are encouraged to take advantage of ADR mechanisms in resolving their disputes, in line with the rules of the various courts.
[i] See Lagos State Practice Direction Expeditious Disposal of Civil Cases
[ii] Halpern. A, Negotiating Skills 1992, p.3
[iii] Section 270 Administration of Criminal Justice Act 2015
[iv] Brayne. H, Grimes. R, The Legal Skills Book, 1998 Pp 378-384
[v] O.Okoye; Law in Practice in Nigeria; 2021, p. 464
[vi] Cap A18 Laws of the Fedration,2004
[vii] Section 8 Lagos State Arbitration Law; S.11 ACA
[viii] Article 15 of Arbitration Rules Made Pursuant to ACA
[ix] Section 20 ACA
[x] O.Okoye; Law in Practice in Nigeria; 2021, p. 471
[xi] S.42 ACA
Written by Abdulrasheed Badmus for The Trusted Advisors
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