THE SALIENT DRAWBACK DECELERATING THE ADVANCEMENT OF ALTERNATIVE DISPUTE RESOLUTION IN NIGERIA
I sat in court waiting for my case to be called; unfortunately my case was the last on the cause list. However as a new wig, I knew the best I could do in the circumstance was to learn from the masters (older counsel) in the profession. So I did.
About sixteen cases on the cause list but just one was heard by the court. The other fifteen (15) cases were overtaken by what has become a regular event or excuses if you like. Excuses like; the other party did not show up or the other party has another matter at a higher court (with no evidence to that effect), or a party is seeking for leave for extension of time or there is an application for amendment of any of the briefs filed. Either way there was an excuse strong enough to barricade a case from going on. Importantly, I was able to learn from the only case that was heard that day. The judge adjusting her glasses, asked the Counsel for the Claimant why he rather not take the matter to an Arbitration panel for a speedy trial and in a way aid in decongesting the courts. The Counsel adjusted his old gown which signified donkey years of practice and gave a rather jolting answer but one worth considering.
However, before considering same, let us briefly discuss the advantages arbitration and other alternative dispute resolution mechanisms have over litigation.
For clarity, alternative dispute resolution (hereinafter referred to as ADR) relates to the alternative methods of dispute resolution, that is, asides litigation. In other words, should a potential litigant be unwilling to go to court, several other methods can be used to resolve the dispute. They include, but are not limited to: Negotiation, Mediation, Conciliation and Arbitration. The advantages of ADR over litigation are as follows:
- It is cost-effective: In the short term, ADR can be more expensive than litigation but in the long term, it is cheaper than litigation. In ADR, all the expenses are borne by the parties while in litigation; some of the expenses are not borne by the parties.
- Preservation of relationship between the parties: Most ADR mechanisms offer a win-win situation to both sides, although arbitration is now similar to litigation as it is governed by stringent rules where there is a winner and loser. Strictly in litigation, it is a win-lose situation. ADR methods however preserve the pre-dispute relationship between the parties.
- Privacy of the parties: ADR helps preserve the privacy of the parties. In litigation, the process must be held in public except under certain conditions unlike ADR where proceedings are privately held. Again most parties to litigation do not return as friends, even in matrimonial proceedings. In the commercial area of law, ADR is most relevant as there might still be need to continue business relationship.
- It is less formal: The court room where litigation is carried out is usually tense. For the lawyers, it is difficult as there are a lot of rules and procedures which must be followed and also extremely difficult for the layman. In ADR sessions, it is more of business meeting where coffee can even be served. Hence the layman is likely to prefer such environment.
- The parties can determine the umpires. They determine the mediator, arbitrator or conciliator.
- Involvement of people: ADR processes are parties driven. Parties can determine the time, venue, language and pace in the ADR process. In litigation, parties are not involved. It is controlled by the court.
- Saves time.
- Encourages compromise
- Decongest the cases before the courtrooms
- Encourages the use of experts.
More so, many business owners and construction industry entities prefer, as a matter of course, that construction disputes be submitted to binding arbitration. Others maintain that, because arbitration lacks facets of the procedural and legal structure of court litigation, only traditional litigation will ensure an outcome that is truly premised on the facts and law. These opinions often are influenced by favorable, or more likely, unfavorable experiences in either forum.
That being said, let us consider some of the disadvantages:
- ADR hinders the development of case law.
- Lack of binding force: ADR processes usually lack binding force except arbitration as the Arbitration and Conciliators Act provides for its bindingness. However for the others that have no binding force, the parties can and usually make an effort to reduce the decision reached in the ADR process into a binding agreement. In other words, by their own nature, most are not binding but there are means to making them binding.
- Parties can easily re-open the matter EXCEPT in Arbitration.
- Its application is limited in some cases.
- The other methods have no legal framework. Only arbitration and conciliation are governed under the Arbitration and Conciliation Act
- Decisions are usually not appealable.
Amidst the jolting answer the aforementioned Counsel gave lies a major disadvantage that is often neglected, forgotten and seldom mentioned. This is the fact that a thousand cases settled by a counsel in any ADR proceeding cannot outweigh one brief settled in a court of record in the application for the revered rank of SENIOR ADVOCATE OF NIGERIA (hereinafter referred to as SAN).
It is manifestly evident that the advantages of ADR are quite enormous and juicy. It is also evidently manifest that the legal world is universally diverting from the circle of litigation to the rich wells of ADR. In a country like the United States where there is no demarcation between Legal Practitioners, it will be quite easy but in a country like Nigeria, will that be possible? I could agree that Nigeria is slowly understanding the merits of ADR and simultaneously tilting thereto, however the failure of the Legal Practitioners in Nigeria to quickly opt for ADR instead of litigation lies beneath the truth that when it comes to the revered rank of SAN, ADR does not count.
Over time, the rank of SAN, rightly or wrongly, is being used as a yardstick to measure success in the legal profession in Nigeria; no wonder the yearly rise in applications for the revered rank. The year 2019 saw a total of 117 applicants out of which 38 were awarded the rank. (35 advocates and 3 academics). According to the Guidelines for the Conferment of the Rank of Senior Advocate of Nigeria 2017, rule 14(1) enunciated that particulars of contested cases and certified true copy of judgments with 20 final judgments of the High court or Superior courts must be attached to the Application for the post of a SAN. This can only be gotten from appearances in the court room and not from an ADR panel.
One might argue that Arbitration for instance is also categorized, starting from Associate in the chatered institute of arbitrators (ACIArb) and so on. While this might be true, it is a fact that in Nigeria, the revered rank of SAN which can only be awarded through litigation and seldom, the academia, comes first in the Legal Profession in Nigeria and any other title can at best play only as second fiddle.
Finally, there might be light at the end of the tunnel, if only proceedings and settlements in all ADR mechanisms are allowed by the Legal Practitioner’s Priviledges Committee to serve in place of judgments of the High court or Superior courts of records or just like the way academics are considered, reputable Arbitrators or Mediators could be considered as such. Till then, most Legal Practitioners even to the detriments of their clients will pick Litigation over ADR. Especially those eyeing the revered rank and you cannot blame a person for striving to get to the peak of his career.
This is evidently a salient drawback decelerating the advancement of alternative dispute resolution in Nigeria.
- ADR advantages http://www.wipo.int/amc/en/center/advantages.html/9-7-2020
- Alternative Dispute Resolution (ADR)- An introduction http://www.duhaime.org/LegalResources/CivilLitigation/LawArticle-18/Alternative-Dispute-Resolution-ADR-An-Introduction.aspx/3-7-2012
- Guidelines for the Conferment of the Rank of Senior Advocate of Nigeria 2017
S.A. Omotoso is a practicing Lawyer with particular interest in Medical Law. He is a graduate of University of Abuja and the Nigerian law school – Lagos Campus. He is a prolific writer with several published works.