WHAT ADR IS NOT - ADDRESSING COMMON ADR MISCONCEPTIONS

What ADR Is Not: Addressing Common ADR Misconceptions

Campfires Law Firm | 9th May, 2024


The need for expediency and efficiency in commercial disputes clashes starkly with the sluggishness and uncertainties often associated with courtroom adjudication. Almost like a recurring decimal, with every legal year, while few cases are disposed of within the legal year, there remain a staggering backlog of appeals, criminal appeals and motions. This chronic issue underscores the urgent need for swifter justice delivery, prompting the emergence of Alternative Dispute Resolution (“ADR”) rules.

For starters, ADR encompasses diverse methods aimed at reaching mutually agreeable dispute resolutions without resorting to litigation. It spans from negotiation to non-binding third-party intervention like mediation, and even binding third-party intervention such as arbitration, all conducted outside the formal courtroom setting. Owing to the informal nature and flexible rules of ADR, parties can agree to incorporate anything into the settlement without reference to the type or magnitude of remedy or damages that might have been available in litigation.

Despite its potential benefits, ADR encounters lukewarm reception and limited uptake in Nigeria. This tepid response stems largely from misconceptions surrounding its efficacy and applicability. This article highlights these misconceptions and endeavours to dispel them, with the aim of creating a path toward embracing ADR more wholeheartedly.

The Misconceptions

1.    ADR is alien and a foreign practice.

2. ADR is not mainstream, not legalistic enough, not weighty, nor binding, subservient and perhaps inferior to litigation.

3.    ADR is not the first port of call for resolution of every type of dispute.

4.    Lawyers that encourage the use of ADR are unskilled in their trade.

5.    ADR affects the welfare of lawyers.

Addressing the Misconceptions

i.        ADR is alien and a foreign practice!

Conversely, ADR predates the 20th century and the 21st century Nigeria, originating from indigenous practices rather than Western influence. Local customs often employed techniques centered around settlement and reconciliation, serving to mend, reinforce, and foster relationships within individuals and communities

The indigenous practice of ADR was reaffirmed in Agu v. Ikewibe1 when the now retired Justice Karibi Wyte emphasised: “it is well accepted that one of the many African Customary models of settling dispute is to refer the disputes to the family head or an elder or elders upon the subsequent acceptance by both parties of the suggested award, which becomes binding only after such signification of its acceptance, and from which either party is free to resile at any stage of the proceedings up to that point”.

The inclusion of provisions for ADR in both the Bible and the Holy Quran2 underscores that the contemporary notion of ADR is essentially a refurbishment and reiteration of longstanding principles within our dispute resolution frameworks.

 ii.       ADR is not mainstream and is inferior to litigation!

For a considerable period of time, there has been a prevailing assumption among individuals, investors, and the general public that litigation serves as the primary avenue for resolving disputes. This misconception largely stems from the term “Alternative.” This term can inadvertently suggest that ADR, along with its resolution mechanisms, is intended to be a secondary or alternative recourse.

ADR isn’t intended as an alternative recourse or substitute; rather, it is intended as the norm. Given its track record of mutual benefit, ADR is designed for mainstream. To address misconceptions that ADR is inferior or peripheral dispute resolution, Australia, for instance, has rebranded it as Primary Dispute Resolution (PDR), with litigation labeled as Alternative Dispute Resolution.

iii.      ADR is not the first port of call for resolution of every type of disputes!

Interestingly, ADR is applicable prior to litigation, during litigation, or post-litigation (as demonstrated by the Bakassi Peninsula case (the Green Tree Agreement) between Cameroon and Nigeria). However, it is best to pursue ADR at the outset of a conflict or dispute since resolving a prolonged dispute amicably becomes increasingly challenging over time.

Further, ADR is suitable for diverse disputes. Ranging from high-value commercial transactions to the recovery of a N500,000 debt and child custody, ADR is non-selective.

iv.      Lawyers that encourage the use of ADR are unskilled in their trade!

The entrenched reliance on litigation might suggest a lack of intellectual agility and deficiencies in critical thinking skills in a lawyer who presents ADR to their client. In informal terms, this could be described as “he no sabi work.”

Paradoxically, the Rules of Professional Conduct for Legal Practitioners, 2007, acknowledges and mandates the use of ADR. Rule 15, sub-rule (3), paragraph (d) stipulates that:

In his representation of his client, a lawyer shall not fail or neglect to inform his client of the option of alternative dispute resolution mechanisms before resorting to or continuing litigation on behalf of his client”.

Lawyers are professionally obligated to offer ADR services to their clients, in their capacity as counsel and not necessarily as mediators or arbitrators. It is important for clients to recognise this and allow lawyers fulfill these responsibilities in their practice.

v.  ADR affects the welfare of lawyers!

Some lawyers believe that ADR diminishes their income, arguing that clients may be unwilling to pay full professional fees when a matter is referred to ADR. However, this is not always true.

Whether a lawyer encourages and practices ADR or not, they are still providing dispute resolution services and should be compensated accordingly. The paramount consideration is the resolution of the dispute,3 regardless of the method used. In reality, a quicker and less stressful dispute resolution process should justify a higher fee.

Conclusion

Misconceptions about ADR often stem from the predominant focus on litigation advocacy in the training of Nigerian lawyers. This emphasis has influenced the perception passed on to the public, either explicitly or through observation.

However, over the past decade, there has been a noticeable shift in mindset. ADR has gained traction in Nigeria, leading to increased popularity. Many lawyers are now being trained in mediation, conciliation, and arbitration, with numerous individuals joining reputable institutions such as the Nigerian Institute of Chartered Arbitrators, Chartered Institute of Arbitrators (CIArb – UK), Nigeria Institute of Chartered Arbitrators (NICArb), Chartered Mediators and Conciliators (ICMC), and the Association of Professional Negotiators and Mediators (APNM). Moreover, several law faculties throughout Nigeria, as well as the Nigerian Law School, have recognised the significance of ADR and have incorporated it into their teaching curricula.

Hopefully, these initiatives significantly alter the misconceptions surrounding ADR.

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END NOTES:

1. (1991) 3 NWLR (Pt. 189) 385 @ p.407

2. The Holy Bible: Matthew 5: 25-26, Luke 12: 58-59; The Holy Koran: Surah 49, Al-Hujurat v. 9-10.

3. Section 49 and 50, Arbitration and Conciliation Act, Cap A18, LFN 2004.

 

 

| Contributor: OBASEOPUWHOI ETIOWO

 

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