THE ROLE OF THE COURT IN THE DEVELOPMENT OF ALTERNATIVE DISPUTE RESOLUTION IN NIGERIA by Uyok Prince

Hello people! This is the first post of the semester and Prince will has given us something to think about.

INTRODUCTION It is true that Alternative Dispute Resolution mechanisms are so called because they are employed by disputants as an option to litigation, which is the practice of proceeding to courts to settle disputes. Arguments have been posited in support of ADR, ranging from flexibility, speedy resolution of disputes, to cost effectiveness (when cost is calculated to include both direct cash payments for example litigators fees as well as indirect cost such as time spent during the process), to privacy and confidential process (suitable for business and trade secrets) and also technical know-how of the subject matter of the disputes. All of these justifications make ADR very appealing most especially to commercial disputes, where time and preservation of business relationships is of the essence. Despite all these, the court still remains the major arbiter for the dispensation if justice in a legal system and so it has a major role to play in encouraging the development of ADR within the legal framework of a State.

A system of civil justice is essential to maintain civilized society, for law provides the basic structure for commerce and industry to operate, safeguards rights of individuals, regulate their dealings with each other and enforce duties of government. Lord Denning in Bremer v. South India Shipping Corp. Ltd, remarked that “every civilized system of government required that the State makes available to all its citizens a means for the just and peaceful settlement of disputes between them”. One of the functions of law over the years has been the continued strive to evolve an efficient means of resolving disputes in our changing world. Also access to courts to remedy wrongs and enforce legal rights is central to most democracies and has remained the main dispute resolution mechanism globally. The shortcomings of this system have been highlighted by several scholars. According to Lord Woolf in his article “Access to Justice, Interim Report on the Civil System Reform”, he observed that most of the problems and complaints about the civil court system in common law countries were more about the process rather than the decisions/outcomes themselves. Some of these problems include delay, inadequate infrastructure, court congestion, inadequate court rooms, corruption, case backlogs, insufficient judicial officers, high qualitative cost of litigation and they are some of the notable problems that scourge the Nigerian judiciary. However, the answers to some of these problems can be found in ADR which has gained acceptance amongst many commercial ventures in Nigeria who have utilized same mainly as a private dispute resolution process. ADR has remained largely a private parallel system of dispute resolution notwithstanding it’s many acclaimed advantages. Some factors militating against the wider use and acceptance of ADR particularly mediation are its essential features of non-bindingness and voluntariness (allowing parties to withdraw at any point of the process) and the fact that its outcomes are not self-enforcing.

It is in this light that the court is encouraged to view mediation, conciliation, arbitration and other ADR mechanisms in a proactive manner as not merely “alternatives” to litigation but as important elements of an integrated approach of resolution of civil disputes. What then will be gained by introducing ADR into the Civil System of Justice? First, litigants are given the option of having their dispute assigned to the most appropriate process. It is no more a case of one size fits all. So whether a litigant is coming to court for the first time or his suit is already pending in the courts, the litigant discusses with a court official about a suitable process for resolving his dispute, he/she has an opportunity to contribute to how the dispute should be resolved. Secondly, the justice system is becoming increasingly inaccessible to the ordinary citizens, due to the escalating costs and inefficiencies. Also, the backlog of cases in many states and federal civil courts is widening the gap between injury and recovery for plaintiffs. Protracted litigation consistently jeopardizes long-standing relationships in trade and business. Evidence abounds regarding how ADR procedures can and have settled civil disputes fairly, efficiently and cost effectively. Other benefits of institutionalization include increased public awareness of alternatives to litigation and growing sophistication regarding appropriate alternative processes among lawyers and judges.

The step taken by the Lagos State Government in the encouragement of the Lagos Multi Door Courthouse is commendable and worthy of emulation. The Lagos State Government have taken steps into integrating ADR into the usual court system to foster a more efficient judicial system. The Lagos State Multidoor Court Practice Directions on Mediation was formulated pursuant to Section 30 of the Lagos Multidoor Courthouse Law. Article 16 of this law which talks about the Settlement Agreement, in (C) provides that “upon a resolution of the dispute, parties will draw up and sign a written Settlement Agreement embodying the terms thereof. Where requested by the parties in drawing up the Settlement Agreement”. And in (D) it states that “the parties on signing the Settlement Agreement are bound by the terms of the Agreement”. Also on the issue of enforcement of the Settlement Agreement, Article 17 is very instructive on that as it states that: “once reduced into writing and signed by the parties, the Settlement Agreement is forwarded to the Referral Judge (court-referred matters) or the ADR Judge (Walk-in & Direct Intervention Matters) for endorsement and Section 19 of the LMDC Law, 2007 and Order 39 Rule 4(3) of the High Court of Lagos State (Civil Procedure) Rules, it shall be deemed to be enforceable as a judgement of the High Court of Lagos State under Section 11 of the Sheriffs and Civil Process Law”.

The implication of Article 17 is that the Settlement Agreement drawn by the parties, and which they appended their signature has the same effect and validity as a judgement of the High Court of Lagos State and so can be enforced as such.

In conclusion, it is recommended that the State should make Alternative Dispute Resolution a part of the Court system and not just a private parallel practice of dispute resolution to foster efficient and effective dispute resolution as well as decongestion of the court of matters that could be settled using ADR. Also, the court judges as well as legal practitioners should suggest and encourage the deployment of Alternative Dispute Resolution mechanisms to settle their disputes.

Princewill, is a 400 level law student with a budding interest in commercial transactions, intellectual property, banking and taxation. He is a firm believer that ADR is the way forward in the resolution of disputes arising from these commercial disputes. He believes his writings and articles are one of his little contributions to a better Nigeria.