BEYOND LITIGATION: WHY NIGERIA MUST EMBRACE ALTERNATIVE DISPUTE RESOLUTION, ADR

BY NENGI J. JAMES, OON

Alternative Dispute Resolution (ADR) remains largely underutilised in Nigeria despite the enormous advantages it offers in resolving conflicts and promoting peaceful coexistence.

Put simply, ADR refers to processes through which disputes are resolved outside the traditional courtroom trial. Rather than leaving every disagreement to the often lengthy and expensive litigation process, parties are given other avenues to negotiate, mediate or otherwise work towards a settlement.

One area where ADR is particularly needed in Nigeria is politics. The country’s political space is frequently heated by disagreements within and between political parties. Many of these disputes end up in court, sometimes after relationships have already been badly damaged. Yet some of them could be addressed through dialogue and other ADR mechanisms before they escalate into prolonged legal battles.

Intra-party disputes arising from congresses, party leadership contests and primary elections, for instance, could benefit significantly from mediation, negotiation or conciliation. Where the parties are willing to engage, ADR can provide an avenue for them to sit down, identify the real issues and seek a mutually acceptable way forward.

That does not mean every political dispute can or should be taken away from the courts. There are matters that require judicial determination. But where a dispute can be resolved through dialogue, there is little reason to allow it to become an unnecessarily bitter and protracted battle.

A greater use of ADR could help reduce tension within the political space while encouraging dialogue, inclusion and peaceful coexistence. Ultimately, that would also strengthen democratic institutions and political relationships.

The oil and gas industry is another area where ADR has considerable room for expansion. Disputes between oil companies and their host communities can be particularly sensitive because they often involve issues of land, environmental impact, employment, development projects and community expectations.

Although ADR is gradually being explored in the sector, stakeholders across the oil and gas value chain can do more. A properly structured mediation or conciliation process, for example, can bring companies, communities and other relevant parties to the same table before disagreements degenerate into protests, shutdowns or litigation.

ADR is not a single process. The appropriate mechanism depends largely on the nature of the dispute and what the parties are seeking to achieve.

Negotiation is perhaps the simplest. The parties speak directly to one another and try to reach an agreement without involving a third party.

Mediation brings in a neutral and trained mediator who helps the parties communicate, understand their respective positions and work towards a voluntary settlement.

The mediator does not impose a decision on them. Arbitration is different. Here, an arbitrator or panel hears the positions of the parties and makes a determination. Depending on the agreement and applicable law, that decision may be binding on the parties.

Then there is conciliation, where a neutral third party assists the disputing sides in reaching an understanding and may also propose possible solutions.

The attractions of ADR are considerable. It can be faster than conventional litigation, particularly where the parties are willing to cooperate. A dispute that might take years to conclude in court may, in appropriate circumstances, be resolved within weeks or months.

There is also the question of cost. Litigation can be financially demanding, especially when a matter moves through several stages of the judicial process. ADR can reduce some of those expenses and, in many cases, provide a more accessible route to settlement.

Privacy is another important advantage. Unlike court proceedings, which are generally conducted in public, ADR processes can offer parties a greater degree of confidentiality.
Perhaps most importantly, ADR gives disputing parties a greater role in finding a solution. Instead of handing the entire outcome to a judge, parties involved in negotiation, mediation or conciliation can participate directly in shaping the settlement.
Nigeria does not necessarily need to take every disagreement to court.

There are disputes that require judgment. There are also disputes that require conversation. The greater challenge, therefore, is not simply creating ADR mechanisms but encouraging individuals, political actors, businesses, communities and institutions to trust and use them when appropriate. If that happens, ADR can become a more important instrument for reducing conflict, strengthening relationships and promoting a more peaceful society.

Again, ADR can also help decongest the courts by providing efficient alternatives to litigation and reducing the growing burden of cases before the judiciary.

One practical step that deserves greater attention is the inclusion of arbitration clauses in contractual agreements entered into by government agencies, ministries, departments and private companies. Such clauses can provide parties with a structured and legally recognised mechanism for resolving contractual disputes without necessarily subjecting every disagreement to lengthy court proceedings.

The recent arbitration proceedings relating to the Mambila Hydroelectric Power Project, reportedly determined under the auspices of the International Chamber of Commerce (ICC) arbitration framework, provide a notable illustration of the role that international commercial arbitration can play in resolving complex contractual disputes.

This article was written by Nengi J.James, OON, (Arbitration practitioner and public affairs analyst in Yenagoa, Bayelsa State)