Alternative Dispute Resolution in the Administration of Justice in Nigeria
ADR is simply the acronym for Alternative Dispute Resolution, which generally refers to processes of resolving dispute outside court-room litigation. Major ADR processes include Negotiation, Mediation, Conciliation, Arbitration, Early Neutral Evaluation and other Hybrids. While there is no doubt about the general categorization of ADR processes, much controversy still exists as to the proper place of these processes in criminal justice administration.1
The notion is very common especially amongst lawyers in Nigeria that litigation is the principal process for dispute resolution and that ADR is secondary or inferior to litigation. There is no doubt that until recently, the training of lawyers in most jurisdictions focused substantially on the skills for use of litigation for dispute resolution. It is therefore this limited training and skills that creates the wrong perception by lawyers about the nature and value for ADR in justice delivery. Proper review of the nature and dynamics of conflicts will reveal that ADR processes are useful before, during and sometimes even after litigation. Litigation results essentially from breakdown of negotiation and sometimes mediation by the parties. Even where a case is pending in court, the parties can resolve their differences amicably by out of court settlement at any time before judgment. It is pertinent to remember that parties to a suit can use ADR to terminate the court proceedings at any stage of the case before judgment. Furthermore, even after judgment, the parties can reach some form of settlement outside the terms of the judgment, although the negotiating powers of the parties may not be the same as before the judgment.
Logically, if by current practice ADR mechanism can be used to settle a civil case before, during and even after litigation, one wonders the real basis for the notion that ADR is secondary to litigation. Another fundamental misconception about ADR is the notion, especially by lawyers in Nigeria, that ADR is another set of judicial or quasi judicial processes. The tendency by legal minds to try to reason our ADR principles from the litigation and adversarial mindset is a major challenge to unlocking the potentials of ADR in justice sector. Most ADR processes in their true nature are not sets of rigid legalistic options for dispute resolution. ADR processes are essentially multi-disciplinary tools for creative problem-solving than a set of legal processes and principles. Although ADR processes and practices are recognized and conducted within the framework of the law, their full potentials cannot be maximized if stakeholders continue to apply them with the same litigation mindset and skills.
Accordingly, where non-lawyer neutrals resolve disputes by ADR, their proceedings, practices and outcomes should not be accessed according to strict standards of technical legal principles and procedures.2 ADR processes are characterized by flexibility, voluntariness and privacy. Their success essentially rely more on the trust and confidence of the parties in the processes and outcome than the adherence to rigid codes of procedure, by resorting to ADR processes the parties to a dispute look beyond the immediate issues on the table to their future relationship. They are more concerned about the future than passing judgment on past errors.3 the fact that much of what lawyers regard as ADR is largely the formal packaging of processes that the people use informally without placing any formal tag or name on them. Essentially, ADR is the same as what we do in our family(s) and communities in Nigeria where some family member or elder intervenes to help parties in their relationships.4