The alternative means of resolving disputes deserves more attention
Fascinated by the way and manner disputes were amicably resolved by African people through mediation and arbitration during the colonial era, the British authorities took away certain lessons which they fine-tuned and integrated into their legal system as Alternative Dispute Resolution (ADR). Meanwhile, in place of unending adjudicatory system, many other western countries have also embraced our contribution to modern jurisprudence which Mr Femi Falana, SAN, once said should be described as “African Dispute Resolution” mechanism. It is a system we have for long abandoned.
Fortunately, the idea of ADR is now gaining currency with the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, advocating that it could help to hasten the disposition of cases in response to the remark by Acting President Yemi Osinbajo that the “crawling” judicial process poses a nightmare for investors in the country. We believe the call is very timely and should be embraced in view of the challenges that are inherent in the current form of adjudication.
The immediate past CJN, Justice Mahmud Mohammed made the use of ADR one of his major pre-occupations. He promoted the idea of evaluating judges based on the number of cases decided through ADR in addition to the number of cases determined through the formal legal system. So, it is not as if the idea is new. The main challenge is that it has not been institutionalised.
The decision to switch to ADR should not come as a surprise to anyone who has had a bitter experience while trying to get the courts to determine their case. It is not only time consuming but expensive. Corruption within the judicial system has also almost rendered useless the basic tenets of rule of law as courts of coordinate jurisdiction render different opinions on similar facts. With that, they make a mockery of the pillar upon which the British legal system was built.
Today, many Nigerians are turning to ADR because it is capable of resolving disputes much faster when compared to litigation just as it does not have to follow stringent procedure. Those who rely on ADR to resolve their disagreements are likely to spend less money compared to those who choose the adversarial court system. ADR is also convenient to use as it allows parties and their witnesses to take their time. It may dispense with oral hearings and rely only on documents. Apart from being convenient, it is also very flexible; much unlike litigation which is rigid.
Besides, a major advantage of ADR is that it is most suitable for our environment. Being conciliatory in nature, parties are not likely to become enemies after their disagreement has been resolved. When three arbitrators render an opinion on a dispute, their decision is likely to be correct and should ordinarily enjoy more acceptability compared to the decision of a judge. Again, because ADR takes advantage of modern technology in resolving disputes, it is more precise, efficient and fast. Today, judges take note in longhand and spend longer time in determining cases to the detriment of investors who want their cases resolved quickly.
However, despite the foregoing, many people still remain sceptical of the efficacy of ADR hence the preference for taking matters to court. Enforcement is perhaps the biggest challenge. Since it is not yet institutionalised, there is always the possibility that those who get unfavourable verdicts in arbitration could then resort to the regular court thus making the entire exercise a waste of time. Yet all factors considered, we agree with Justice Onnoghen that under our current circumstance, mediation and arbitration may help in the amicable resolution of judicial conflicts in our country.