By Michael Adeniregun
1.0 INTRODUCTION
Dispute or conflict is part and parcel of human life, and must always be present. But they have to be resolved in such a manner as to ensure peace, stability, harmony and progress in all aspects of human society. The basic means of dispute resolution is through mutual negotiation, failing which the intervention of a third party ensues. A third party is either approached by the disputants or he he intervenes suo motu (on his/her own accord) to help resolve the dispute. With the passage of time, this gave rise to court system and Alternative Dispute Resolution (ADR).
Alternative Dispute Resolution mechanism is a range of procedures that serve as alternatives to litigation through the courts for the resolution of disputes generally involving the intercession and assistance of a neutral and impartial third party. This mechanism exists in different forms like arbitration, mediation, conciliation, negotiation, mediation-arbitration (medarb), mini-trial, etc.
Jesus Christ lived more than two thousand years ago spoke in favour of settlement out of court. He said:
"If someone brings a lawsuit against you and takes you to court, settle the dispute with him while there is time, before you get to court. Once you are there, he will hand you over to the judge, who will hand you over to the police, and you will be put in jail. There you will stay, I tell you, until you pay the last penny of your fine."
Also in the Holy Koran, there is a similar teaching by Prophet Muhammed.
2.0 ARBITRATION
Arbitration is the process of referring a dispute to an impartial intermediary chosen by the parties who agree in advance to abide by the arbitrator's award that is issued after a hearing at which all parties have the opportunity to be heard. Arbitration resembles traditional civil litigation in that a neutral intermediary hears the disputant's arguments and imposes a final and binding decision that is enforceable by the courts. Arbitration can even expedite negotiations, since the parties know that once the arbitrator has issued a decision, the decision is typically final and rarely appeal-able.
There are two different forms of arbitration: Private and Judicial arbitration. Private arbitration is the most common form of ADR. Private arbitration is the product of an agreement to arbitrate drafted by the parties who enter a relationship anticipating that disputes will arise, but who mutually desire to keep any such disputes out of he courts. It agreements typically identify the person who will serve as arbitrator. The arbitrator need not be a judge or government official. Instead, the arbitrator can be a private person whom the parties feel will have sufficient knowledge, experience, and equanimity to resolve a dispute in a reasonable manner. In some states, legislation prescribes, the qualifications one must satisfy to be eligible for appointment as an arbitrator. Private arbitration is the primary method of settling labour disputes between unions and employers. For example, unions and employers almost always include an arbitration clause in their formal negotiations, known as collective bargaining agreements. By doing so, they agree to arbitrate future employee grievances over wages, hours, working conditions, and job security. Many real estats and insurance contracts also make arbitration the exclusive method of negotiating and resolving certain disputes that can arise between the parties entering those types of relationships.
3.0 ALTERNATIVE DISPUTE RESOLUTION (ADR)
Alternative Dispute Resolution (ADR) refers to any means of settling disputes outside of the courtroom. It other words, it is the procedure for settling disputes without litigation, such as arbitration, mediation or negotiation. ADR procedures are usually less costly and more expeditious. They are increasingly being utilized in disputes that would otherwise result in litigation, including high-profile labour disputes, divorce actions, and personal injury claims. Primary reasons why parties prefer ADR proceedings is that, unlike adversarial litigation ADR also allows the parties to come up with more creative solutions that a court may not be legally allowed to impose.
4.0 ADR AND ARBITRATION: THE CONTROVERSY
It is necessary to analyze the controversy surrounding arbitration as an ADR mechanism before dwelling on the crux of this work. Alternative Dispute Resolution seems to have abandoned arbitration as an integral part of the mechanism. Opinions differ considerably about whether to classify arbitration as ADR or not. This is because arbitration shares the features common to both ADR properly so-called and litigation. In one camp are those who think that arbitration should not be grouped with other forms of ADR. Prominent among this group are Redfern and Hunter. For them, arbitration would have been included in ADR if the latter is used in a wide sense of methods of resolving disputes other than those adopted by the courts. But for the fact that ADR is not always used in this wide sense, arbitration is not included in ADR. In support of their view, the authors quoted Carroll and Dixon stating that:
'' Arbitration presents an alternative to the judicial process in offering privacy to the parties as well as procedural flexibility. However, it is nonetheless fundamentally the same in that the role of the arbitrator is judgmental. The function of the judge and the arbitrator is not to decide how the problem resulting in the dispute can most readily be resolved so much as to apportion responsibility for that problem".
For this school of thought, therefore, although arbitration is a great alternative to litigation, nevertheless, it is not ADR strict sensu (in a strict sense) because it is judgmental and imposes a decision on one of the parties. There is therefore a winner-loser phenomenon. Arbitration is closer to litigation in its method than it is to ADR. An agreement to arbitrate is enforceable by the courts, whereas an agreement to enter into an ADR process will not be so enforced. However, in Australia, the court has held that agreement to conciliate could be enforced where it has the certainty necessary for legal enforceability. The judge defined what is enforced as “not cooperation and consent but participation in a process from which cooperation and consent might come”. There is yet no such rule of law in English or Nigerian legal systems. Arbitration is governed by the applicable law whereby its process and outcome are pre-determined in accordance with an objective regulatory standard. In ADR, for example, mediation, the process and outcome are determined solely by the will of the parties.
In arbitration, a party’s task is to prove his case and convince the arbitral tribunal that he is right; whereas in other forms of ADR, the task is to convince or compromise with the other party since the outcome must be accepted by both parties. While an arbitrator is empowered to make a binding award, in other forms of ADR like mediation, a mediator has no power to make a binding decision. The procedure adopted in arbitration is different from that obtained in other forms of ADR. Arbitrators must act in accordance with the rules of natural justice, that is to say, they must hear both parties together and at the same time. On the other hand, mediators are free to see the parties independently and privately, and because of the duties of confidentiality, may not even disclose to one party what they have been told by the other.
On the other side of the camp are those who see arbitration as ADR because of the attributes it shares in common with them, which are absent in litigation. These features inter alia, are party autonomy in the choice of arbitral tribunal, convenience of the parties in the choice of time and venue for the proceedings, informality in its conduct, privacy and cordiality of the parties, during and after the resolution of the dispute which makes the relationship to continue unsoiled.
5.0 CONCLUSION
It is the nature of arbitration that puts it in its present curious state and rightly so. It has developed over the years with legislative interventions which formalized it to its present status. However, because arbitration has some features of ADR properly so-called, and some others of litigation, this peculiarity marks it out distinctly as a unique form of dispute resolution machinery with advantages outweighing disadvantages. We therefore classify arbitration as ADR - a special type of ADR, and place it topmost in the list of ADR methods on account of the reasons given in this work. Variety is the spice of life. It is a healthy development that there should be different types of ADR so that people could have the freedom to make their choice from a wide range of available options. This feature of multiple choice is the major reason why we advocate for the use of arbitration and other forms of ADR in the management of various disputes which arise regularly on account of human interactions. It is praiseworthy to note that this has been introduced in Nigeria by the concept of Multi-Door Courthouse in Lagos and Abuja.
Michael Adeniregun is a 200L Student of the Faculty of Law, Lagos State University. He has been a member of the Elias Chambers since he was admitted into the faculty.
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