The existence of conflict resolution among human race according to the Christians can be traced back to the beginning of the world after the creation of man in the garden of Eden. Adam and his beloved wife, Eve, ate the forbidden fruit which they had been commanded not to eat. God, the giver of the instruction, gave both Adam and his wife a fair hearing by requesting of them why they went against his command which then birthed a conflict between God and man. Several instances /examples were recorded both in the Bible and Quran as touching conflicts among human and how same were resolved via one resolution mechanism or the other.
In resolving conflicts or disputes, several approaches usually are deployed in arriving at a just conclusion. In Nigeria, there are two major methods mostly adopted in the resolution of disputes when same arises and these are: litigation and alternative dispute resolution which includes but not limited to arbitration, mediation, negotiation etc. in this article, we shall be making a comparative analysis of the two methods mostly adopted by disputants in the amicable settlement of their grief.
Litigation is a judicial process that is adversarial in nature[i] and the most common and adopted method of dispute resolution in Nigeria.
WHAT IS LITIGATION?
Litigation is a judicial process of carrying out a law suit. It can also be said to mean the lawsuit itself[ii]. Ligation can be divided into two broad fields namely civil and criminal.
Civil litigation is the process of enforcing, redressing or protecting a private right and obtaining appropriate remedies. It can also mean a judicial process set in motion for the sole purpose of getting a remedy for a wrong done or any other judicial process other than criminal litigation. The burden of proof required in a civil litigation is for the claimant/plaintiff to prove beyond preponderance of facts.
While Criminal litigation is the judicial process initiated in court with the aim of punishing an offender or the committer of an offence. The burden of proof required in criminal litigation is for who is alleging the commission of the crime to prove beyond reasonable doubt.
Litigation is generally carried out or performed in the Court room or in chambers as the case may be and it is characterized with the following: Cause of Action, Mode of Instituting Action, Parties, Jurisdiction, Procedures, Burden of Proof and Judgment
In Nigeria, several laws/rules governs litigation in general some of which are:
- the Constitution of the Federal Republic of Nigeria 1999 (as amended)
- statutory law – laws of the Federation of Nigeria and various state civil or criminal laws; bylaws of various local government areas;
- procedural law – civil procedure rules of court; criminal procedure laws; practice directions;
- subsidiary law – regulations; guidelines; executive orders;
- received English laws; common law and principles of equity (which apply where there is a lacuna in the existing laws of Nigeria);
- statutes of general application in force in England as at 1 January 1900;
- case law; judicial precedents; and
- domesticated bilateral and multilateral treaties[iii]
WHAT IS ALTERNATIVE DISUTE RESOLUTION (ADR)
Just as the name implies, ADR is an alternative mode applied towards the settlement of dispute save recourse to the adversarial judicial system which is litigation. Sir Abraham Lincoln in his word once described ADR “Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough”[iv].
There are different types/mechanisms of ADR namely; Arbitration, Mediation, Conciliation and Negotiation. Each of these mechanisms has its own peculiarity and distinctiveness. In a short while we shall juxtapose the difference between these mechanisms.
NEGOTIATION: This is the process of obtaining something through discussion by parties in other to arrive at a mutual conclusion without the involvement of a third party. This type of ADR is common in our day to day activities at no cost. Negotiation is not enforceable in nature
CONCILIATION: This is the process in which a neutral party referred to as a Conciliator (mostly an expert) only facilitate an amicable settlement of a dispute between disputants but does not possess the power to decide for the parties or give an award. In Conciliation, solutions can only be proposed by the conciliator and suggested to parties. Parties are not bound to follow or accept same. There is less cost implication in conciliation.
MEDIATION: The concept of mediation postulates the involvement of a neutral and impartial third party with the spirit of resolving the conflict between disputants by giving free speech having heard from both parties and their interest in the issue at hand. Mediation is more structured and procedural in nature. Unlike a Conciliator, a Mediator does not evaluate but only facilitate the mediation process with specific focus on settling the dispute via mutual agreement between parties.
ARBITRATION: This method of ADR, the most popular and commonly known Alternative Dispute Resolution mechanism, can be aligned to its legally binding nature. Arbitration is the involvement of a neutral Umpire called (an Arbitrator) in the settlement of a dispute between parties who have pre-submitted themselves to it proceedings wherein the Arbitrator, having heard both parties, gives a decision also known as An Arbitral Award which will be binding on parties and enforceable in court of competent jurisdiction. Arbitration is also the fastest wide spread ADR method and it is recognized across the globe. It is statutorily recognized and governed by the Arbitration and Conciliation Act 1988. Even though this method of ADR is expensive vis a vis other mechanism, same is however preferred for its procedural and formalized system. Arbitration has a close similarity with litigation, most especially in the aspect of calling of witnesses and tendering of documents, however it is more of party involvement than advocacy.
COMPARATIVE ANALYSIS OF ALTERNATIVE DISPUTE RESOLUTION (ADR) AND TRADITINAL LITIGATION.
- Cost: There is less cost implication in ADR than Litigation. Parties in conflict who adopts litigation mode of settling their dispute tends to spend more and incur more cost than parties who adopt any of the ADR mechanism in resolving their dispute.
- Time: The time spent on matters or disputes resolved by litigation is more than that of ADR. Matters in Court, most especially in Nigeria tends to suffer much adjournment which could either be at the instance of the Court or parties. However, in ADR proceedings, this is not so, as proceedings are often day to day and this helps parties reach an amicable resolution in due time.
- Parties involvement: ADR encourages and gives more room for participation in dispute resolution process when compared with litigation. In litigation, parties are represented by advocates and only have right of audience when called as witnesses to give evidence whereas in ADR, the bulk of dispute resolution process and proceeding rest on the shoulder of the parties involved, Advocates are only available to guide parties.
- Enforcement: Aside arbitral awards, other ADR mechanism decision or conclusions are not enforceable. Unlike decisions in litigation which are enforceable save for declarative reliefs.
- Decision: Decisions in litigation are either called a Judgment where same is final or Ruling, where it is during the pendency of the dispute in court. Decisions in Arbitration are called Arbitral Award and Resolutions in other ADR mechanisms. Kindly note that rulings in litigation can also indicate final decision where such ruling determines the existence of such dispute.
- Appeal: All decisions in litigation are appealable save the decisions of the Supreme Court which is the apex court while decisions under ADR mechanisms are not appealable.
- Flexibility: Litigation is strictly procedural and where the laid down procedures are not religiously followed, same can lead to the incompetency of the said action/dispute and also affect the end result thereof. However, all ADR mechanisms are flexible and are not strict with their procedure and processes.
CONCLUSION Alternative Dispute Resolution when compared to litigation as a tool for conflict resolution, can be seen to be gaining appreciable recognition world-wide for its cost-effectiveness and satisfactory settlement of conflicts. ADR poses a win-win situation which encourages parties to opt for same instead of litigation which often takes a long time. A consideration of the above comparative analysis shows that a party can be confident to decide on which mode of resolution system is most suitable for settling
[i] Folajomi Fawehinmi and Safiate Akand,. Litigation and Enforcement In Nigeria: Overview – https://uk.practicallaw.thomsonreuters.com/w-017-3556?transitionType=Default&contextData=(sc.Default)&firstPage=true
[ii] Destiny Irueghe Aisekhaghe, A Note On The Nature of Civil Litigation In Nigeria – https://ssrn.com/abstract=3922608
[iii] Ifeanyi Osakwe and Soibi Ovia, Nigeria: Litigation Dispute Resolution Comparative Guide https://www.mondaq.com/nigeria/litigation-mediation-arbitration/1076514/litigation-dispute-resolution-comparative-guide
[iv] Abraham Lincoln’s Notes for a Law Lecture, ABRAHAM LINCOLN ONLINE (Roy P. Basler et al., 2018), http://www.abrahamlincolnonline.org/lincoln/speeches/lawlect.htm (last visited May 21, 2020)
Written by Ajibola Olaosebikan for The Trusted Advisors
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