AN OVERVIEW OF THE EFFECT OF ADR ON VARIOUS SECTORS IN NIGERIA BY ADEWALE MOYINOLUWA

1.0. INTRODUCTION

Without a doubt, the invariably rising and recurring disputes have attracted a different and more effective approach for resolving conflict. Here comes the need for an Alternative Dispute Resolution process. ADR is a procedure that denotes a range of dispute resolution techniques for settling conflicts between parties, with the help of a third party unaccompanied by litigation. This affords parties the chance to exert greater control over the manner in which their dispute is resolved. The resolution may be binding or non-binding.

In Bremer v South India Shipping Corp, Ltd, Lord Denning stated that “every civilized system of government required that the state makes available to all its citizens a means for the just and peaceful settlement between them”.The extensive branch of Alternative Dispute Resolution includes; Facilitation, Early Neutral Evaluation, Settlement Conferences, Collaborative law, Case Evaluation, Neutral fact-finding, Community Dispute Resolution Program, Mini-Trial, MED-ARB, ARB-MED, Summary Jury Trial, Judicial Settlement. Particularly, Mediation, Arbitration, Negotiation, Conciliation, and Adjudication are constitutionally recognized under Section 19(d) of the 1999 Constitution of the Federal Republic of Nigeria which states that:

“The foreign policy objectives shall be respect for international law and treaty obligations as well as the seeking of settlement of international disputes by negotiation, mediation, conciliation, arbitration, and adjudication”

2.0. ADR MECHANISMS

2.1. Mediation

This is a well-known and practiced mechanism of Alternative Dispute Resolution. According to Black’s Law Dictionary, mediation is a non-binding dispute resolution mechanism involving a neutral third party who aids the disputing parties in reaching a mutually agreeable solution. The Oxford Dictionary of Law defines mediation as a form of alternative dispute resolution in which an independent third party (known as a mediator) assists the parties involved in a dispute or negotiation to achieve a mutually acceptable resolution of the points of conflict.This is a collaborative process where an unprejudiced person called a mediator works with the parties by helping them reach a mutually agreeable solution.The mediator helps the parties to correspond and attain a common ground by themselves, the mediator achieves this by limiting how much they meddle in the dispute, and guiding the disputants into a peaceful resolution. The mediator may be a lawyer or a specifically trained non-lawyer who facilitates the resolution process without decision-making powers, it is usually non-binding. In Okpwuru v. Okpokam,Justice Oguntade recognised the act of mediation done during pre-colonial times.

2.2. Arbitration

The Black’s Law Dictionary defined arbitration as a method of dispute resolution involving one or more neutral third parties whose decision is binding. In the case of John Onyenge & Ors. v Chief Loveday Ebere & Ors, Niki Tobi JSC buttressed the point of arbitration. Furthermore, the Arbitration and Conciliation Act is the principal law regulating Arbitration in Nigeria, section 57 defines Arbitration as “commercial arbitration whether or not administered by a permanent arbitral institution”.

2.3. Negotiation

This mechanism is a non-binding modus operandi and is the most widespread method which leads to mediation. According to the Black’s Law Dictionary, Negotiation is the “consensual bargaining process in which the parties attempt to reach an agreement on a disputed or potentially disputed matter”. This mechanism is often practised in government branches, businesses, legal proceedings, and non-profit organizations among nations and even in personal issues like divorce, parenting, and marriage.

2.4. Conciliation

Here, with the assistance of an unprejudiced third party, the conciliator settles disputes between disputing parties in a friendly manner and by mutual agreement to avoid litigation. The Black’s Law Dictionary states that Conciliation is a settlement of disputes in an agreeable manner or a process in which a neutral person meets with parties to a dispute and explores how the dispute might be resolved.

2.5. Adjudication

It is a form of ADR that involves an independent third party, the Adjudicator who considers both sides of the dispute, carries out a fairly detailed study of the disputes, and makes a decision concerning the matter. This mechanism is used widely in the construction industry.

3.0. BENEFITS OF ADR

ADR, the most effective and efficient way of resolving disputes, has benefits like maintaining privacy by making the declaration of disputes private, feasibility and cost-effectiveness.There is the flexibility of bureaucratic structure, inventive solutions, and sustainable outcomes.

4.0. THE ADMINISTRATION OF ADR IN RELEVANT SECTORS IN NIGERIA

With human society comes human interaction and such interactions range from commercial activities to personal relationships, and almost inevitably, a dispute is borne out of these interactions. Nigeria, a sovereign nation, has different sectors to aid the human interaction and satisfaction. This includes the Maritime sector to facilitate the importation of goods, the Oil and Gas sector, which is regarded as the heart and, the center of the Nigerian economy, the protection of intellectual property in Nigeria, and many others. To address the different disputes that may arise between parties during commercial activities, resolution centers were established for the various sectors. Some of them are:

4.1. The Alternative Dispute Resolution Centre for Oil and Gas

The Federal Government inaugurated an Alternative Dispute Resolution Center (ADRC) with a six-member Advisory Council and a 20-member body of Neutrals to mediate and facilitate quick resolution of disputes in this industry in Lagos state. In the oil and gas sector, disputes tend to be prolonged because of the interest and multiplicity of parties involved, and are usually expensive. This is where ADR comes to play. The establishment of ADRC was following the provisions of Petroleum Actand 43 cases have been sent to the center by the Department of Petroleum Resources (DPR) after the inauguration.The oil and gas sector will build capacity and competence in the accreditation of ADR in Nigeria. The ADRC was established in January under the National Oil and Gas Excellence Centre (NOGEC) with the major aim being to provide a platform for the settlement of disputes in the industry.

4.2. Mediation Centres.

It is known that whenever there is a thought of a mediation centre in Nigeria, the first that comes to mind is the Lagos Multi-Door Court House. This is the head for all ADR centers in Lagos and it settles all types of disputes including maritime (using mediation). The Lagos Multi-Door Court House is the main hub of administration of all different types of cases referred from the High Court or Magistrate Court of Lagos State and the first court-connected ADR center in West Africa to provide timely and effective services to the masses.Another mediation center is the Office of Public Defender (Lagos Mediation Center) which deals with disputes relating to civil, criminal and family matters. Some mediation centers deal with certain specific matters like land, human rights, intellectual property, for example, World Intellectual Property Organization Arbitration and Mediation Center in Nigeria collaborated with ADR to raise awareness and proffer solutions for contractual and non-contractual commercial disputes between parties instead of court litigation. Most of these centers are under the Citizens Mediation Center which offers free services to the masses from tenancy matters to employment, family, and even civil matters through the use of mediation.

4.3. Maritime Sector

This is recognized as one of the most economically viable industries.Maritime shipping accounts for 90% of international commodity trade traffic,in addition to deposits of living and non-living resources found in various maritime spaces. The amicable settlement of disputes in the maritime industry is necessary to guarantee the smooth operation of the trade and commerce environment. Arbitration, as an alternative to litigation, has been the oldest form of ADR used frequently in this industry for resolving dispute in a relaxed environment. This method is recognised by various laws of sea tribunals such as the International Tribunal for the Law of the Sea (ITLOS) and many others. There is an establishment for an Arbitration association which is the Maritime Arbitrators Association of Nigeria (MAAN), but no existence of alternative dispute resolution special bodies which administer maritime mediation.

4.4. Family/Marital disputes

ADR is no stranger in this field due to the frequent use of its techniques.,Usually, mediation, collaboration, and arbitration are used in settling disputes of both parties, and available centers like the Lagos Mediation Center can settle disputes on this.

The Federal High Court (Alternative Dispute Resolution Center) Rules, 2019 made provisions for the establishment of Dispute Resolution Centre, ADR committee, functions and powers, Director and Registrar of the center, e.t.c, in Order 1-11.

Alternative Dispute Resolution Center under the National Industrial Court of Nigeria deals with labour issues, employment, aviation, contract matters, and commercial activities. They even employ the use of arbitration in banking sectors for disputes.

5.0 CONCLUSION

In conclusion, the disadvantages of ADR may include non-binding powers on the decision reached in certain instances, absence of legal precedents, no guarantee of settlement of disputes, lack of enough ADR centers for some sectors in Nigeria like Telecommunication, and many others. The way forward is to create awareness on ADR mechanisms to the public and special bodies for dispute resolution should be established for non-dominant sectors like Telecommunication, Technology, Aviation, and so on and also to encourage courts to look favourably upon ADR awards.