Chapter One

Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.
CHAPTER ONE
INTRODUCING ALTERNATIVE DISPUTE RESOLUTION (ADR)
“People attend lawyers with problems they want resolved,

not problems they want litigated. A trial is only one way to
resolve a case, yet a trial is the only option offered by the
court-administered system. Lawyers and their clients deserve
better.” 1
1.1 WHAT IS ADR?
“ADR” is an acronym for Alternative Dispute Resolution; which may be defined
as a range of dispute resolution processes or mechanisms designed and available
outside of, but supplementary to litigation.2 It arises out of the realization that not
all disputes have to end up in the courts or traditional system of litigation, as
sometimes disputes can be settled amicably between the disputing parties, and
faster too.
The term ‘Alternative Dispute Resolution’ has also been defined as descriptive of
a wide variety of dispute resolution mechanisms that are short of, or alternative to,
full-scale court processes.3 It can refer to everything from facilitated settlement
1
The Chief Judge of Ontario, Canada.
2
Kehinde Aina, “THE MULTI-DOOR COURTHOUSE CONCEPT: A SILENT REVOLUTION IN
LEGAL PRACTICE”. Kehinde Aina is an Ashoka Fellow, a partner in the Law firm of Aina, Blankson &
Co., the Executive Director of the Negotiation & Conflict Management Group and the founder of the
Lagos Multi-door Courthouse.
3
S. Brown, C. Cervenak and D. Fairman, ALTERNATIVE DISPUTE RESOLUTION PRACTITIONERS’
GUIDE; Center for Democracy and Governance, March, 1998, p. 4
Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.
-1-
negotiations in which disputants are encouraged to negotiate directly with each
other prior to some other legal process, to arbitration systems or mini-trials that
look and feel very much like a courtroom process.4
Although there are countless processes available under ADR and other hybrids,
i.e. combinations of two or more ADR processes to meet the peculiar demands of
each dispute and arrive at a workable resolution, the chief processes or
mechanisms available in ADR are negotiation, conciliation, mediation and
arbitration.
ADR is already entrenched in many legal systems around the world and is being
highly favoured because it provides a ready answer to most of the problems posed
by the traditional system of court litigation. The common denominator of all ADR
mechanisms is that they are faster, less formalistic, cheaper and often less
adversarial than a conventional court trial.5 The few features mentioned already
render ADR highly welcome to most disputing parties.
Chief Justice Warren Burger, Chief Justice of the United States of America (1969
– 1986), is popularly noted to have quipped:
4
Ibid.
5
www.legalcatch.wordpress.com/2006/10/24/alternative-dispute-resolution-adr-law-definition-2/
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“The notion that most people want black-robed judges,

well dressed lawyers and fine-panelled courtrooms as the
setting to resolve disputes is not correct. People with
problems, like people with pains, want relief and they want
it as quickly and inexpensively as possible.”
In normal litigation, once a dispute is brought before the court it marks a
departure from a cordial relationship because the parties assume the status of
adversaries. This breakdown of relationship resulting from court action is not
limited to the less-educated alone and because one party is always the winner and
the other the looser, these broken relationships often never mend.
In their groundbreaking "prospect theory", the late Amos Tversky and Nobel
Laureate Daniel Kahneman explained that people tend to derive some pleasure
from any gain and some displeasure from any loss, regardless of the size of the
gain or loss. Although mounting gains and losses will increase your pleasure and
pain, respectively, simply viewing yourself as a "gainer" or a "loser" will greatly
affect your happiness. That's why most people prefer to experience as many wins
as possible....6 A traditional Yoruba proverb described this adversarial nature of
litigation by saying: “We do not come back from the courts and remain friends”.7
Alternative Dispute Resolution prevents this eventuality by providing a courteous
and conducive environment and approach to settling disputes. More so, ADR
brings a win-win situation to dispute resolution whereby both parties feel they’ve
6
Deepak Malhotra and Max. H. Bazerman, “Pitch Your Offer – and Close the Deal”, NEGOTIATION
NEWSLETTER (of the Harvard Law School), Vol. 10, No.8, August 2007.
7
Kehinde Aina, Op. cit. p. 4
-3-
gained some advantage and recourse in the resolution and the relationship
between them is salvaged. It achieves this by focusing not on rights but on
interests and since both parties have their particular interests, a means at meeting
both interests to greater or lesser extents is devised.
The cost of seeing a traditional court case through from start to finish is very
harrowing and this, apart from the excessive length of time involved in civil cases,
is probably the worst setback of litigation. Peter Grove wrote:
“Corporate executives think the high cost of civil justice is a

drag on U.S. business and the economy. Fully 83% say their
decisions are increasingly affected by the fear of lawsuits and
a 62% majority say the legal system significantly hampers U.S.
competitiveness....An overwhelming 97% favour much more
use of alternative methods to resolve disputes. In British
Columbia, there is currently up to a two year wait for a trial
date, and it may take a full five to eight years to see a case
through to the Court of Appeal.” 8
Court fees and counsels’ fees are an ever-present factor in pursuing litigation and
therefore, most conceive court litigation as not being for everyone. The price of
justice may be too high in many cases, and not every case warrants a “full dress”
court proceeding even if it produces a more “just” result. Costs do matter:
globalization and increasing competition make them matter more than ever
8
Peter Grove, “Fast Track Alternative to Litigation for the Business Community”, The British Columbia
International Commercial Arbitration Centre, www.bcicac.org
-4-
before.9 Often the rich are deemed to be those who can afford to drag cases on
without end, even where other less-privileged people would have given up.
Mark H. McCormack highlighted the problem of society’s dependence on
lawsuits and the courts thus:
“We sue each other so often, and with such unquestioning

assurance that that’s how things are done, that some legal
scholars have dubbed it ‘the litigious society’…. We
assume that going to court is the best if not the only way to
seek redress. Like bickering siblings, we look to the court
as to an all-wise parent, too often losing sight of the fact
that the court is subject to the same peculiarities, lapses in
judgment, and blind spots as we are.”10
ADR presents a cheaper alternative to going to the courts. It helps reorient the
public about lawsuits and brings justice within nearer reach of the less-privileged.
The cheaper cost of resolving disputes via means other than traditional litigation
is stated as one of the strongest points of ADR.11
1.1.1 ADR: ‘Alternative’ or ‘Appropriate’?
9
Canadian Arbitration and Mediation Journal, Vol. 11, No. 1, Winter 2002, p.4
10
Mark H. McCormack, What They Didn’t Teach Me At Yale Law School, USA, Fontana/Collins, p. 180-1
11
S. Brown, C. Cervenak & D. Fairman, Op cit. p.7
-5-
There is an ongoing contemporary debate as to the nature of ADR and the suitable
name given it in light of the acronym ‘ADR’. Most scholars argue that the ‘A’ in
ADR should correctly stand for ‘Appropriate’ because ADR is not just about
alternatives to litigation, like negotiation, mediation, arbitration, etc. but about
finding the most appropriate process or processes that adequately addresses the
dispute at hand. It is then and only then, they argue, that ADR can make any sense
and be of help to anybody. On the other side of the divide, however, are those
scholars that insist that whether appropriate or not, the dispute resolution
processes and mechanisms encapsulated under the acronym ADR are apt
‘Alternatives’ to litigation and that it is then the prerogative of its users to opt for
those processes that are appropriate for their disputes, but, they remain
alternatives.
Michael Fogel, in supporting the use of the term ‘Appropriate’, captured the
issues of the debate thus:
“Presently litigation is seen as the primary course of

action to pursue when a dispute arises. Regardless of how
committed we are to changing the acronym’s meaning, the
majority of dispute resolution users still perceive other
dispute resolution processes to be alternatives to court.
Mediation, settlement conferences, arbitration, and all
other forms of alternative dispute resolution processes are,
… seen as separate and distinct from the litigation stream,
as well as from one another. Changing alternative to
appropriate is a step in the right direction; we need to
follow through by working to create a dispute resolution
(DR) system that encompasses all DR mechanisms and
even creates new ones as the need arises. This… would
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provide the public with more responsive, efficient and

timely processes. … Those parties involved in disputes, as
well as their advocates and representatives, would be able
to choose the appropriate process, or combination of
processes, from the selections offered on the “menu”. The
choice would depend upon the nature of the dispute and
what would prove most beneficial and cost-effective at the
point in time in the dispute.”12
Dele Peters, a Nigerian author lends his voice to the debate by prescribing an even
more divergent appellation to the ADR acronym by suggesting that the ‘A’ in
ADR should stand for ‘African’, that is, African Dispute Resolution. He stakes his
claim on the fact that the alternative methods of dispute resolution being
championed by the Western world today actually have their roots in African
culture and were only sidetracked with the introduction of Common Law system
of court adjudication introduced to Africa by the Colonialists and these
alternatives should be rightly credited now as originating in Africa.13
It remains, however, that whichever perspective one approaches the debate with,
these methods, whether ‘Appropriate’ or ‘African’, still remain as alternatives to
going to court to have disputes settled. It is in this base and foundational sense
that ADR should remain as it has come to be known – Alternative Dispute
Resolution.
12
Michael Fogel, ADR: What is the Real Alternative?, Canadian Arbitration and Mediation Journal,
Vol.11. No.1, Winter 2002, p.10
13
Dele Peters, Alternative Dispute Resolution (ADR) In Nigeria – Principles and Practice, 2004, Lagos,
Dee-Sage Nigeria Ltd, p. 16
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1.2 ADR PROCESSES
Alternative Dispute Resolution in itself does not refer to a process of dispute
resolution, but is employed as a general umbrella term for the many processes of
dispute resolution that are alternatives to court-bound litigation.
Each of these processes is distinct from the others, both in nature, format and
practice. The major forms of ADR recognized and accepted worldwide today are:
negotiation, mediation, conciliation and arbitration along with other forms known
as ‘hybrids’, which are mainly combinations of two or more conventional ADR
processes.
Most ADR processes are based on an integrative approach. They are more
cooperative and less competitive than adversarial court-based methods like
litigation. For this reason, ADR tends to generate less escalation and ill will
between parties. In fact, participating in an ADR process will often ultimately
improve, rather than worsen, the relationship between the disputing parties. This
is a key advantage in situations where the parties must continue to interact after
settlement is reached, such as in child custody or labor management cases.14
1.2.1 NEGOTIATION
14
Stephen B. Goldberg et al, Dispute Resolution, 1997, 2nd ed., Boston, USA, Little, Brown and Co., p. 12
-8-
‘Negotiation’ is a commonplace term used in everyday life, especially as regards
bargaining; often between buyer and seller at the market place, between employer
and employee or generally in establishing a contract. In this context of usage,
negotiation can simply be defined as:
‘the art of achieving what you want from a transaction,

leaving all other parties involved content that the
relationship has gone well’.15
This definition brings to the fore the basic characteristics of negotiation,
irrespective of the context in which it occurs. First it occurs between parties with
varying interests. Second, it is a process whereby the objective is to win as much
as you can without rendering the other party or parties losers. In other words, it
fosters a win-win situation. Finally, negotiation saves relationships. When carried
out well, negotiation leaves each party smiling away because he is convinced he
has won something and because of the nature of negotiation, the atmosphere
under which it is carried out if often friendly and conducive.
Negotiation is the most basic term in conflict resolution, but its forms,
possibilities, and limits are widely misunderstood. Understanding what can be
achieved through negotiation and how the process works is essential to virtually
everyone in all spheres of human endeavour, whether at home with a family, at
15
Linda Bailey, www.mccombs.utexas.edu/faculty/Linda.Bailey/glossary.htm
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work, as a consumer, in voluntary or religious organizations, in local politics, or
in dealing with officials.16
In ADR, negotiation is one of the first approaches to dispute settlement and can be
defined as:
“the process whereby interested parties resolve disputes,

agree upon courses of action, bargain for individual or
collective advantage, and / or attempt to craft outcomes
which serve their mutual interests. It is usually regarded as
a form of alternative dispute resolution.”17
Many argue that negotiation does not have to be included in ADR as an
alternative to going to court because most people negotiate anyway, and it is only
when such negotiations fail that they conclude they have to find recourse in court.
However, negotiation in ADR is not merely negotiation in the common sense of
the word, but is a process that can itself be a viable alternative to going to court at
all. ADR claims negotiation as one of its procedures because increasingly
agreements are structured to require parties to negotiate as a precondition to going
to litigation. Where such agreements exist, it is only after a good-faith attempt to
negotiate a settlement has failed that litigation may proceed. Where negotiation is
used at the outset of a dispute, it is frequently successful, and most frequently
involves less cost than litigation.18

16
Chris Honeyman, President, CONVENOR and Director, Broad Field Project,
http://www.crinfo.org/CK_Essays/ck_adr.jsp
17
From Wikipedia, the free online encyclopedia. www.en.wikipedia.org/wiki/Negotiation
18
ADR INSTITUTE OF CANADA, What Is ADR?, http://www.adrcanada.ca/news/faq.html
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Negotiation allows for a series of adjustments of position dependent upon the
changing assessment of facts, priorities and expectations made by each party as
the negotiation proceeds. The aim of negotiation is to have the priorities,
expectations, demands and perceptions of each party change so an amicable
resolution can be reached. Indeed, much of the skill of a negotiator lies in his
ability to effect change in his opponent, but not only this, he must also recognize
the need for it in his own position.19
The apparent flexibility that characterizes the negotiation process can be create
the wrong impression that there is no structure and procedures. However, the
process merely stands free from externally imposed rules of structure and
procedure.20
Negotiators operate face to face with no external referee or third party. Because of
this, each negotiator has to rely upon his opponent: the process will only work if
both parties want it to. This element of mutual reliance does not impede the airing
of antagonism or conflict at the bargaining table. The negotiating process is not a
soft option. The early stages of negotiation are known to be marked in many cases
19
W. J. Holdsworth, Advocacy and Negotiation in Industrial Relations, 1979, Sydney, The Law Book Co.
Ltd, p. 5
20
Ibid.
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by stormy exchanges as both parties test each other’s mettle and give vent to the
very real differences between each side.21
Negotiation can occur between principals or with the aid of agents or
representatives. It is between principals when the parties of the dispute choose to
negotiate between themselves via dialogue and direct interaction without any
outside third-party. Most of the informal negotiation that goes on is of this sort. It
is by agents when the parties enlist the services of other professionals, especially
lawyers, to negotiate on their behalf. Principals retain the prerogative to make the
final decision as touching whether to agree to a settlement but they surrender
control over the negotiation process to their agents negotiating on their behalf. A
setback of this mode of negotiation is that agents may not have a complete
understanding of their principals' interests or values, and may not always explore
the same universe of settlement options that principals would consider. Hence,
parties employing this mode must ensure that they are consciously being carried
along in the entire process and should restate their interests and realign their
agents when they seem to be on a frolic of their own. But as always, the words of
Shakespeare shine through here, “Let every eye negotiate for itself, and trust no
agent.”22 In other words, you are better off negotiating for yourself!
21
Ibid., p. 6
22
J. N. Weiss, PhD, “You Didn’t Just Say That!”- Quotes, Quips, And Proverbs For Dealing In
The World Of Conflict And Negotiation, PROGRAM On NEGOTIATION AT HARVARD LAW
SCHOOL, USA, 2004, p. 26
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1.2.2 CONCILIATION
Conciliation is yet another non-adversarial process of ADR. Mostly, this occurs
where there are disagreements or unresolved conflicts between the parties, which
negotiation and other attempts at resolving the disputes have failed.
Conciliation has been defined by The Black’s Law Dictionary as:
“The adjustment and settlement of a dispute in friendly,

unantagonistic manner used in courts before, trial with a
view towards avoiding trial and in labour disputes before
arbitration.” 23
It has also been described as:
“An informal process in which the third party tries to bring

the parties to an agreement by lowering tensions,
improving communications, interpreting issues, providing
technical assistance, exploring potential solutions and
bringing about a negotiated settlement, either informally
or, in a subsequent step, through formal mediation.” 24
Conciliation consists of third-party involvement to establish mutual understanding
of the dispute and thereby promotes settlement in a friendly, non-antagonistic
manner.25
23
The British Year Book of International Law, 1929, p. 99
24
Leo Kanowitz; Cases and Materials on Alternative Dispute Resolution, American Casebook Series, West
Publishing Co., St. Paul, Minnesota, 1985, p. 28
25
S. Brown, C. Cervenak and D. Fairman, ALTERNATIVE DISPUTE RESOLUTION
PRACTITIONERS’ GUIDE; Center for Democracy and Governance, March, 1998, Appendix A, p. 2
- 13 -
Conciliation is not new in the world of dispute resolution. Indeed, it has been
practiced in most ancient traditional societies.26 The major thrust of the process is
its aiming to remove hard feelings, hurt, enmity and vendetta and making it
possible for the parties to just sit down together and subsequently attempt to
resolve the problems between them amicably. Quite similar to mediation in that it
employs the services and input of a third-party, conciliation is yet different in that
it focuses primarily on reconciling the parties to the dispute. Once that is done,
negotiations and mediation could then take place as means of reaching mutual
resolutions.
Conciliation in Nigeria is governed by The Arbitration and Conciliation Act 27.
The Act makes necessary regulations for the process and details of administering
conciliation in Nigeria. However, conciliation is not known to be widely practiced
in Nigeria.
1.2.3 MEDIATION
Mediation lies at the heart of ADR.28 Every form of organized ADR is truly one
form of mediation or the other. The mediator moves backwards and forwards
26
Dele Peters, Op cit. p. 141.
27
Cap A18, Laws of the Federation of Nigeria, 2004
28
A. Redfern & M. Hunter, Law and Practice of International Commercial Arbitration, 4th Ed., 2004,
London, Sweet & Maxwell, p. 37
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between the parties until a suitable consensus is reached. Indeed, the old Chinese
word for mediator is ‘a go-between who wears out a thousand sandals’.29
Defining mediation in its simplest sense, it is negotiation carried out with the
assistance of a third-party at the instance of the parties.30 Mediation can take place
at any level and in any context. For example, a Secondary School student sits
between two of his mates to try to stop their fight, and somewhere in the Middle
East the Secretary-General of the United Nations is meeting with ten ambassadors
trying to avoid a war. Both are mediations, no matter how informal or
sophisticated. In a more explicit and thorough definition of the term and its
process, mediation is:
“a process in which the parties agree to appoint a third-

party neutral to assist them in attempting to reach a
voluntary settlement. The neutral does not make a
decision and the parties may terminate the process at any
time. It is confidential and without prejudice. The parties
are encouraged to seek independent legal advice, and
where a voluntary settlement is achieved, it only becomes
binding when the parties have concluded a settlement
agreement.” 31
Mediation is a voluntary process in which parties to a dispute work together with
a neutral facilitator – the mediator – who helps them reach a settlement. The
mediator does not decide the case. Mediation is a dispute resolution process that is
generally considered to be confidential. Mediation is offered as an option to

29
Donadson, “ADR”, 1992, 58 JCI Arb. 102
30
Dele Peters, op. cit. p. 97
31
ADR INSTITUTE OF CANADA, http://www.adrcanada.ca/news/faq.html
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parties who file an arbitration. The results of mediation are binding if and when
parties enter into a settlement contract.32
The mediator assists the parties in paying attention to the crucial aspects of their
dispute that they overlooked at the earlier stage of negotiation or could overlook
in subsequent attempts to resolve their dispute. Although a mediator cannot force
an outcome, the process is very often effective. The key is the ability of the
mediator to create a more productive discussion than the parties could have had
by themselves. To do this, mediators help the parties determine facts; show
empathy and impartiality with the parties; and help the parties generate new ideas.
They also use persuasion and exercise political skill; often, though not always,
they have lots of background knowledge of the issues and type of dispute. Though
many mediators are highly trained and experienced, not all are professionals, and
they come from many different walks of life.33
1.2.3.1 Caucuses
The mediator works with the parties privately when necessary in separate
meetings known as “Caucuses”.34 These are private meetings between the
mediator and each respective party in which he tries to ascertain the true interests
32
AMERICAN ARBITRATION ASSOCIATION, Alternative Dispute Resolution Basic FAQs, AAA
Online Library,
33
Chris Honeyman, op. cit.
34
A. Redfern & M. Hunter, op. cit.
- 16 -
that lie behind the veil of the facts and the general conflict. He also tries to
suggest possible approaches in presenting their interests and demands. Caucuses
prove very useful and effective because the details of these meetings are never
shared with the other party or in the general mediation sessions.
Other purposes that caucus meetings serve include:
a) to provide an opportunity for a party to vent and cool down when emotions
flare;
b) to encourage candor and get to the root of the dispute;
c) to spend time alone with a party in order to establish a relationship based on
trust;
d) to encourage a party to shift ground when proving unyielding;
e) Isolating one party from the threats or intimidating conduct of the other.35
Caucuses encourage the parties in these meetings to do away with facades and
bare their minds and true concerns. With such an in-depth understanding of both
parties, the mediator can better mediate the dispute and this has in most cases
proven to be the fastest and most effective form of dispute resolution.
1.2.3.2 Styles of Mediation
35
Dele Paters, op. cit. p. 118 – 9
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Mediation can be of two basic styles – Facilitative Mediation and Evaluative
Mediation.36 In facilitative mediation, the mediator assists the disputants to
communicate more effectively but will not engage in rigorous analysis or
evaluation of the substance and merits of the dispute. Parties will be encouraged
to develop their own settlement options. Here, the mediator’s role is primarily to
provide an atmosphere for easy and free communication. This occurs mostly
where the conflict has brought about a breakdown in communication between the
parties.
By comparison, evaluative mediators are likely to be more aggressive in seeking
concessions. This “aggression” does not imply neutrality is done away with.
Basically, such mediators act with a deeper sense of urgency and the weight of the
dispute bears on their approach in achieving an amicable settlement. An
evaluative mediator may engage in pro-active "reality testing" of the weaknesses
of party positions in private caucuses and may propose settlement alternatives.
Reality testing gives parties the ability to make a more objective analysis of their
position. The mediator, in caucus meetings may ask the parties to respond to an
opponent's claim or defense. In doing so, the mediator tests the positions of the
parties to assess how close or far apart they are from a realistic view of their
cases. The mediator opens the parties' eyes to important aspects and facts they
36
Bickerman Dispute Resolution PLLC, http://www.bickerman.com/chart.shtml.
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may have overlooked in the case. Thus, reality testing provides a more realistic
view and enhances the possibility of a settlement. Possible discrepancies in
understanding between parties and their own counsel can be uncovered through
reality testing as well. In addition, an evaluative mediator may be called upon by
the parties to render a non-binding opinion of the merits of the dispute.37
1.2.3.3 Initiation and Process of the Mediation 38
Although there are no set rules or stereotypes to the practice and process of
mediation39, the presence of guidelines and procedures for mediation as a process
of dispute resolution proves to be beneficial. For example, Canada launched her
National Arbitration Rules in October 2002 in Toronto. Also launched were new
Mediation Rules of the ADR Institute of Ontario, which were to be implemented
alongside the arbitration rules on an interim basis.40 According to Barry Effler,
President of the ADR Institute of Canada:
“These rules fill a gap in Canadian business and legal

practice…it is long overdue to have Canadian rules and
administrative procedures for arbitration and
mediation…these made-in-Canada rules are designed to
provide effective administration of disputes…” 41
37
Bickerman Dispute Resolution PLLC, op. cit.
38
According to the AMERICAN ARBITRATION ASSOCIATION (AAA) Mediation Practical Guidelines
39
Dele Peters op. cit. p. 107
40
Canadian Arbitration and Mediation Journal, op. cit., p.3
41
Ibid.
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The American Arbitration Association has practical guidelines for the
administration of mediation which govern their services in mediation. According
to those guidelines, the mediation process begins with the selection
of an appropriate mediator. Although either one of the parties
can recommend a mediator, both parties are encouraged to
mutually agree upon a mediator. To assist in the selection
process, the AAA provides the parties with the resumes of
qualified mediators, which include the candidates’ professional
expertise and Mediation experience.42
The parties or the mediator may wish to have a preparatory
conference call to discuss the filing of Mediation briefs,
settlement authority and Mediation conference participants. At
every Mediation session, each party shall have a representative
with settlement authority present.43
The mediator generally begins the session with all parties and
their representatives present. Procedures, ground rules and the
confidentiality of the proceedings are discussed at the outset.
Each party is given time to describe its respective view of the
dispute. The mediator often asks questions to clarify issues for

42
AMERICAN ARBITRATION ASSOCIATION (AAA) Mediation Practical Guidelines
43
Ibid.
- 20 -
each of the disputants, while defining the perceptions of the
parties and their interests.44
Mediators could also make use of caucuses with each side.
During these caucuses, the mediator may seek to make
incremental progress by exchanging possible settlement offers.
The mediator then works towards narrowing the differences
between the parties, eventually reconvening the joint session
and confirming agreement where it exists.
When the parties reach a settlement, the terms are confirmed or
agreed to in writing by the parties. Thereafter the agreement
becomes binding on the parties.
Parties wanting to adopt Mediation as a part of their contractual
dispute settlement procedure may insert the following Mediation
clause into their contract in conjunction with a standard
Arbitration provision:
If a dispute arises out of or relates to this

contract, or the breach thereof, and if the
dispute cannot be settled through
negotiation, the parties agree first to try in
44
Ibid.
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good faith to settle the dispute by Mediation

administered by the American Arbitration
Association under its Commercial Mediation
Procedures before resorting to arbitration,
litigation or some other dispute resolution
procedure. 45
The appropriateness and relevance of a mediation strategy or process for a
particular dispute is a function of the parties involved, the nature of the dispute
and the mediation programme.46 Thus it was said:
“There is no ‘best’ way to mediate a dispute.” 47
The flexibility of the mediation process has made it one of the most frequently
used of all the dispute resolution processes.
1.2.4 ARBITRATION
Arbitration is an adjudicatory dispute resolution process in which one or more
arbitrators issue a judgment on the merits of a dispute after an expedited and
adversarial hearing in which each party has the opportunity to present proofs and
arguments. The decisions of arbitrations are usually binding, except where the
parties agree otherwise. Even in instances where the arbitration proceeding is non-
45
Ibid.
46
47
Ibid.
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binding, the experience still often leads to the resolution of the dispute.48 Of all
ADR processes, arbitration is the closest to conventional court litigation. This is
largely due to its formality and adversarial and adjudicatory manner. Procedural
rules and substantive law may be set by the parties.49 In essence, arbitration is the
referral of a dispute to one or more impartial persons for final
and binding determination. It provides as alternative to the
judicial process by offering privacy to the parties and has the
added advantage of procedural flexibility.50
Defining arbitration is a task that meets with diverse road blocks.
This is because most definitions available either define the
decision or agreement of the arbitration and not arbitration itself
or define it in its verb sense, that is, the act of arbitrating.
However, perhaps the most apt definition is that found in
Halsbury’s Laws of England:
“An arbitration is the reference of a dispute

or difference between not less than two
parties for determination, after hearing both
sides in a judicial manner, by a person or
persons other than in court of competent
jurisdiction.” 51
48
Maurice J. Attie, Alternative Dispute Resolution – An Overview, International Alliance of Holistic
Lawyers, http://www.iahl.org
49
S. Brown, C. Cervenak and D. Fairman, op. cit., Appendix A p.3
50
A. Redfern & M. Hunter, op. cit.
51
Third Edition, Vol. 2
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This definition was echoed verbatim in Kano State Urban Development v. Fanz
Construction Company Ltd 52.
Arbitration has been championed as a means of decongesting the courts especially
in cases that require a more formalistic approach similar to that of the courts. To
quote Chief Justice Warren E. Burger:
“Today neither judges nor lawyers need worry about

being ‘put out of business’. Our collective concern in
‘How can we do it?’. The anomaly is that there are
‘better ways of doing it’ – of resolving private disputes
and we must, in the public interest move toward taking a
large volume of private conflicts out of the courts and
into the channels of arbitration.” 53
Arbitration takes two forms – binding and non-binding arbitration. In binding
arbitration, it must be expressly agreed by the parties that the decision of the
arbitrator will be binding upon them. Even if the ‘award’ reflects an erroneous
interpretation of the law of facts, no appeal is allowed unless serious
misbehaviour on the part of the arbitrator can be proved. Such misbehaviour could
be the arbitrator’s failure to disclose a relationship had with a party of the dispute
52
(1990) 4 NWLR (pt 142) 1 at 32
53
Judge Warren E. Burger (as he then was), Remarks to the American Arbitration Association, Nov. 1968,
Delivery of Justice (Proposals for Changes to Improve the Administration of Justice), 1990, St. Paul,
Minnesota, 1990, p. 29
- 24 -
or partiality.54 In non-binding arbitration, the parties must have agreed that the
award would not be binding between them. The parties have a right to appeal
within a specified time. Where no appeal is brought within a prescribe time, the
award becomes binding.55
The parties involved usually agree to resort to arbitration in lieu of court
proceedings to resolve an existing dispute or any grievance that may arise
between them. Arbitration may sometimes be compelled by law, particularly in
connection with labor disputes involving public employees or employees of
private companies invested with a public interest, such as utilities or railroads.
Most arbitration has involves labor or commercial disputes. In recent years,
however, other uses of arbitration have gained acceptance, such as arbitration of
medical malpractice claims and resolution of disputes among insurers. As
worldwide trade and investment have increased, international commercial
arbitration has become important both in planning international transactions and
in resolving disputes when they arise.
Arbitration is often used to obtain a quicker, less expensive, and
more expert decision than the courts are thought to provide.
Sometimes the decision is advisory (that is, not binding), but
more often, both parties agree in advance to follow the
54
Ifedayo Akomolede Esq., Arbitration As A Form of Alternative Dispute Resolution (ADR): Issues and
Prospects, (2005) Vol. No. 3 UNAD L.S.J, p. 19
55
Ibid.
- 25 -
arbitrator’s decision (called an ‘award’). Generally when there
has been such an agreement, the courts will enforce an
arbitration decision, unless it obviously violates the law.56
This is the most popular of all ADR processes and is governed in
Nigeria by the Arbitration and Conciliation Act57.
1.2.4.1 Types of Arbitration
Arbitration, by nature can be used in many diverse situations and
circumstances. It fits into almost all modes of disputes whether
civil, commercial, family, labour, etc. Also, the rules and
procedures of the arbitration can be designed in any way
deemed necessary by the parties. On these bases, there are
many types of arbitration.
i) Domestic Arbitration – This is arbitration between
parties resident in the same country. Not only are these
parties to be resident in the same country, but the subject
of the dispute must have occurred in the same country.58
56
Chris Honeyman, op. cit
57
Cap A18, Laws of the Federation of Nigeria, 2004
58
- 26 -
ii) International Arbitration – Where the parties to the
dispute reside or do business in different countries or the
subject of the dispute, a contract for example, is to be
carried out in more than one country, the arbitration of it is
said to be international. Arbitrations will also be deemed to
be international arbitrations where the parties expressly
agree that any dispute arising from their transactions will
be treated as an international arbitration.59 International
commercial arbitration is arbitration of disputes arising out
of international trade and commercial contracts.
iii) Institutional Arbitration – Parties to a contract can
expressly agree that any dispute arising thereof shall be
arbitrated according to the rules of any arbitration agency
or institution. The arbitrations can also be carried out by
these agencies and with their own arbitrators.60 Such
agencies and associations include the American Arbitration
Association, British Columbia International Commercial
Arbitration Centre, the London Court of International
Arbitration, etc.
iv) Ad-hoc Arbitration – This arises where no mention of
arbitration is made in the contract, but after the dispute

59
Ibid.
60
Ibid.
- 27 -
arises resort is made to arbitration with the rules and
procedures made up by the disputing parties.61
v) Documents Only Arbitration – Arbitration can be carried
out solely based on documents presented by the parties
and involving to oral presentations or speeches. This form
of arbitration is known as ‘documents only arbitration’. It is
known to save cost and time and is most commonly
employed in construction contracts and consumer
disputes.62
vi) Labor Arbitration – Concerned largely with disputes between employers
and employees over interpretation or application of the terms of collective
bargaining agreements, and occasionally with new contract terms. 63
vii) Commercial Arbitration – Arbitration that deals with
disputes among private parties regarding contracts to
produce, buy, sell, lease, or distribute goods or to perform
a business service.64
viii) Court-annexed Arbitration – Today courts in some
jurisdictions around the world order for certain cases to be
arbitrated first before the trial commences. Many disputes
61
Ibid., p. 55
62
Ibid.
63
Lowenfeld, Andreas F., and Collins, Daniel G. "Arbitration." Microsoft® Student 2007 [DVD].
Redmond, WA: Microsoft Corporation, 2006.
64
Ibid.
- 28 -
and cases filed are resolved this way without eventually
coming before a judge for trial. In such arrangements, one
or more arbitrators, usually lawyers, issue a non-binding
judgment on the merits after an expedited, adversarial
hearing. The arbitrator’s decision only addresses the
disputed legal issues and applies legal standards. 65
1.2.4.2 Arbitration Clauses in Contracts
Seeing that ADR and arbitration has become commonplace in the
corporate world today, it has become customary for parties
seeking to contract to include a clause in the contract that any
dispute arising out of the performance or non-performance of the
contract will first be sought to be resolved via arbitration. It could
also not only state that recourse would be had to arbitration, but
may go ahead to specify the process, the body of rules under
which the arbitration would be carried out and possibly even the
particular arbitrator or arbitrators. This clause, commonly called
‘ADR’ or ‘Arbitration Clause’ is also known as the Scott v. Avery

66
Clause. This case established that once there is an arbitration
clause in an agreement, the parties must submit themselves to

65
S. Brown, C. Cervenak and D. Fairman, op. cit.
66
(1856) 25 L.J. Ex 308: S.H.L.C 811
- 29 -
arbitration first before resorting to litigation.67 This position has
also been upheld in Nigeria.68
An example of such a clause is here presented from the
American Arbitration Association:
Any controversy or claim arising out of or relating to

this contract, or the breach thereof, shall be settled
by arbitration administered by the American
Arbitration Association under its Commercial
Arbitration Rules, and judgment on the award
rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof.69
1.2.4.3 Benefits and Shortcomings of Arbitration
Arbitration is known to be perhaps the most patronized of all ADR
processes, especially in international commercial disputes. The
benefits of arbitration include the facts that:
a) Parties can select the arbitrators by agreement. It is not
possible to select a judge, even with joint consent and
whichever judge is appointed to the case, the fact that
he has little knowledge of the subject matter of the
dispute is irrelevant.70
67
Ifedayo Akomolede Esq., op. cit. p. 25
68
Madukolu v. Nkemdlim (1962) 1 All NLR 587
69
AMERICAN ARBITRATION ASSOCIATION, A Guide To Mediation and Arbitration for Business
People (Amended and Effective September 1, 2007), p. 15
70
Judge Warren E. Burger, op. cit. p. 30
- 30 -
b) Arbitration in most cases is much faster than litigation.
Since the procedure of the arbitration is determined by
the parties, they can fit that procedure into a time-span
that is favourable and more conducive for them.71
c) Arbitraton is generally more cost-effective than
litigation. A lot of cost is involved in litigation.72
d) Confidentiality and privacy are guaranteed in
arbitration. The amount of publicity accorded major
cases in litigation is not a problem here because arbitral
sessions are conducted privately and the arbitrators and
the parties are bound by agreement not to mention any
detail or aspect of the arbitration to any third parties.
e) Appeals are discouraged in arbitration, especially where
the parties are agreed that the awards will be binding
upon them.73 Thus, a decision well-reached is more
likely to be final than in litigation where appeals have
become a cliché.
f) Arbitration is conciliatory in nature and is more likely to
preserve healthy relations between the parties than in
conventional litigation.74 This is especially beneficial to
71
72
Ibid.
73
74
Ibid.
- 31 -
business contacts that could save their relationships
and continue to do business together.
g) Arbitration affords parties the opportunity of having
more than one person adjudicating on disputes that
affect them.75 This diversity of background, expertise
and perspective will ensure that a better-thought out
decision is reached.
Arbitration is however not void of setbacks. Its shortcomings
include the facts that:
a) Arbitration when over-formalised develops the same bottle-
necks and problems of litigation.76 Also, when issues or
questions are referred to court for an interpretation, the
arbitration invariably lasts longer.77
b) Arbitration does not have the power inherent in it to compel
hesitant or recalcitrant witnesses to appear before an
arbitrator.78
c) An arbitration award can be set aside by the regular courts at
the instance of any one of the parties, especially in a non-
75
Ibid.
76
77
78
Ibid.
- 32 -
binding arbitration.79 When this is done, the whole process is
reduced to a cataclysmic waste of money, time and energy
and is worse off even than conventional litigation.
d) The powers of arbitrators and conservatism of same has led to
slavish adherence to the procedures of litigation.80
e) Enforcement poses a lot of problems to arbitral awards.81
1.2.5 ADR HYBRID MODELS
Over the years certain other blends of ADR processes have
emerged and are being given their own status as ADR models or
mechanisms. Chief among these ‘hybrids’ are: Early Neutral
Evaluation, Fact finding, Mini-trials, and Med-Arb, etc.
i) Early Neutral Evaluation – this is an ADR process
applied to civil cases in which the parties and their
lawyers come together early in the pre-trial phase to
present summaries of their cases and receive a non-
binding assessment of the case by an experienced
and neutral attorney (sometimes also a retired or
79
Ibid.
80
Dele Peters, op. cit.
81
Ifedayo Akomolede Esq., op. cit.
- 33 -
magistrate judge) who has expertise in the subject
matter of the dispute. This process is evaluative in
nature and thus has a semblance to evaluative
mediation.82 The neutral evaluator will convene a
brief, non-binding meeting to hear the parties outline
the key elements of their cases. The evaluator will
identify the main issues and explore possibilities of
settlement.
ii) Fact Finding – this is a process where an impartial
third-party gives binding or merely advisory opinions
regarding the facts relevant to a dispute. Such a
third-party could be designated by the parties to the
dispute or by the court.83 The fact-finder reports to
the parties on his or her conclusions but does not
otherwise assist the parties in their negotiations.
Armed with an impartial review of the facts, the
parties may be more likely to settle their dispute.
iii) Mini-trial – this specie of ADR combines a more
formal legal advocacy procedure with elements of
information management, negotiation, neutral
82
S. Brown, C. Cervenak and D. Fairman, op. cit. (App. A)p.4
83
Ibid.
- 34 -
facilitation and case evaluation.84 This is a wholly
voluntary process where parties have a summary
hearing, each side presenting the essence of their
case. Each party can therefore learn the strengths
and weaknesses of its own case, as well as that of
the other parties. The neutral president may then
offer her opinion concerning the likely outcome of
the case in court.85 Mini-trial presents to the parties a
real picture of their case and how it is likely to fare in
court and this makes them reconsider negotiations,
mediation and arbitration as alternatives to going all
the way to court. This process is also referred to as
“Executive Tribunal”, “Executive Appraisal” or
“Supervised Settlement Procedure”.86
iv) Med-Arb – This is basically a multi-step from of ADR
where the parties to the dispute resolve from the
onset that where mediation does not produce a
resolution, they will move on to arbitrate the dispute,
using the same individual to act as mediator and
arbitrator.87
84
85
86
Dele Peters, op. cit.
87
- 35 -
1.3 THE PROSPECTS OF ADR
For many reasons ADR advocates worldwide believe in its
relevance and champion advancements in its institutionalization
daily. ADR has come a long way from the decades long ago when
it was first advocated by Professor Frank E. Sanders of the
Harvard Law School in form of the multi-door court concept. ADR
does have many potential advantages, but there are also some
possible drawbacks and criticisms of pursuing alternatives to
court-based adjudication. Apart from the basic and easily
identifiable advantages of ADR, like cost and time effectiveness,
just how relevant and applicable is ADR and what are its
prospects for countries that encourage it and its users? Are there
any setbacks in its practice?
One prime reason why ADR is being favoured by judicial systems
around the world, especially in developing countries, is the fact
that ADR brings justice within the reach of social groups that do
not readily have it within their reach.88 It is argued that people
who cannot afford to go to court are those most likely to use ADR
procedures. As a result, these people are less likely to truly "win"

88
S. Brown, C. Cervenak and D. Fairman, op. cit. p.3
- 36 -
a case in court because of the cooperative nature of ADR.89 Some
critics, however, are concerned about the legitimacy of ADR
outcomes, charging that ADR provides "second-class justice" in
the sense that the outcome of the alternative dispute resolution
method could have turned out either way and also that there is
no guarantee that the resolutions reached are fair and
equitable.90
For ADR to thrive in any country or jurisdiction, certain factors
must be seen to. If ADR is to be feasible in practice, program
designers must access certain background conditions like
political support, institutional and cultural fit, human and
financial resources, and power parity among potential users.
Goals must be set to render it assessable and an adequate legal
foundation must be given to it. 91
An advantage of ADR which also works out to be one of its
disadvantages is that ADR programs apply more of equity and
equitable principles rather than the rule of law (that is, legal
rules). Each case is decided based on principles and terms that
89
Stephen B. Goldberg and others, Dispute Resolution, 1985, Boston, Little, Brown and Company, p. 3.
90
Ibid.
91
- 37 -
seem equitable in the particular case, rather than on uniformly
applied standards. This works to the benefit of the parties
because they can have their disputes resolved more on the basis
of interests than of strict legal rules. On the other side of the
coin, however, ADR systems cannot be expected to establish
judicial precedent or implement changes in legal and societal
norms. This is the core reason why there is no such thing as
records and reports of ADR cases as they are shrouded in cloaks
of privacy and confidentiality. ADR systems tend to achieve
efficient settlements at the expense of consistent and uniform
justice.92
ADR, despite its diverse and far-reaching application, has been
found to be inappropriate and liable to bring about unfair results
in certain kinds of conflicts. For example, since ADR techniques
most often involve parties working cooperatively in an effort to
bring about compromise, heated moral disputes or conflicts
involving serious acts of injustice (such as war crimes or
domestic violence) are likely better handled in the courts, where
just punishment can be more effectively administered. Also,
since most ADR methods settle disputes more privately than the
92
Ibid.
- 38 -
courts, parties that desire the dispute to receive more public
attention or wish to set legal precedent may want to opt out of
ADR. ADR is also less useful in situations of great power
disparity. Although mediators can try to do some power
equalization, in situations where one party is far more powerful,
knowledgable, or skilled at negotiating than another, the result of
mediation may be less than fair.93
ADR is based on more direct participation by the disputants,
rather than being run by lawyers, judges, and the state. In most
ADR processes, the disputants outline the process they will use
and define the substance of the agreements. This type of
involvement is believed to increase people's satisfaction with the
outcomes, as well as their compliance with the agreements
reached. Most ADR processes are based on an integrative
approach. They are more cooperative and less competitive than
adversarial court-based methods like litigation. For this reason,
ADR tends to generate less escalation and ill will between
parties. In fact, participating in an ADR process will often
ultimately improve, rather than worsen, the relationship between
the disputing parties. This is a key advantage in situations where

93
Norman Schultz, Alternative Dispute Resolution (ADR),
http://www.crinfo.org/CK_Essays/ck_adr.jsp
- 39 -
the parties must continue to interact after settlement is reached,
such as in child custody or labor management cases.94 Similarly,
critics believe that ADR encourages compromise. Compromise
can be a good way to settle some disputes, but it is not
appropriate for others. In serious justice conflicts and cases of
intolerable moral difference, compromise is simply not an option
because the issues mean too much to the disputants.95
94
Stephen B. Goldberg and others, Dispute Resolution, 1985, Boston, Little, Brown and Company , p. 12
95
Ibid., p. 9
- 40 -

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

INTRODUCING ALTERNATIVE DISPUTE RESOLUTION (ADR)

“People attend lawyers with problems they want resolved,

1.1 WHAT IS ADR?

“ADR” is an acronym for Alternative Dispute Resolution; which may be defined

as a range of dispute resolution processes or mechanisms designed and available

all disputes have to end up in the courts or traditional system of litigation, as

full-scale court processes.3 It can refer to everything from facilitated settlement

negotiations in which disputants are encouraged to negotiate directly with each

look and feel very much like a courtroom process.4

each dispute and arrive at a workable resolution, the chief processes or

mechanisms available in ADR are negotiation, conciliation, mediation and

render ADR highly welcome to most disputing parties.

– 1986), is popularly noted to have quipped:

“The notion that most people want black-robed judges,

In normal litigation, once a dispute is brought before the court it marks a

adversaries. This breakdown of relationship resulting from court action is not

pain, respectively, simply viewing yourself as a "gainer" or a "loser" will greatly

as possible....6 A traditional Yoruba proverb described this adversarial nature of

Alternative Dispute Resolution prevents this eventuality by providing a courteous

between them is salvaged. It achieves this by focusing not on rights but on

both interests to greater or lesser extents is devised.

is probably the worst setback of litigation. Peter Grove wrote:

“Corporate executives think the high cost of civil justice is a

court proceeding even if it produces a more “just” result. Costs do matter:

Mark H. McCormack highlighted the problem of society’s dependence on

lawsuits and the courts thus:

“We sue each other so often, and with such unquestioning

is stated as one of the strongest points of ADR.11

1.1.1 ADR: ‘Alternative’ or ‘Appropriate’?

alternatives to litigation, like negotiation, mediation, arbitration, etc. but about

issues of the debate thus:

“Presently litigation is seen as the primary course of

provide the public with more responsive, efficient and

of court adjudication introduced to Africa by the Colonialists and these

alternatives should be rightly credited now as originating in Africa.13

these methods, whether ‘Appropriate’ or ‘African’, still remain as alternatives to

that ADR should remain as it has come to be known – Alternative Dispute

1.2 ADR PROCESSES

Alternative Dispute Resolution in itself does not refer to a process of dispute

dispute resolution that are alternatives to court-bound litigation.

as ‘hybrids’, which are mainly combinations of two or more conventional ADR

cooperative and less competitive than adversarial court-based methods like

between parties. In fact, participating in an ADR process will often ultimately

settlement is reached, such as in child custody or labor management cases.14

‘Negotiation’ is a commonplace term used in everyday life, especially as regards

and employee or generally in establishing a contract. In this context of usage,

negotiation can simply be defined as:

‘the art of achieving what you want from a transaction,

This definition brings to the fore the basic characteristics of negotiation,

varying interests. Second, it is a process whereby the objective is to win as much

fosters a win-win situation. Finally, negotiation saves relationships. When carried

under which it is carried out if often friendly and conducive.

possibilities, and limits are widely misunderstood. Understanding what can be

everyone in all spheres of human endeavour, whether at home with a family, at

work, as a consumer, in voluntary or religious organizations, in local politics, or

in dealing with officials.16

“the process whereby interested parties resolve disputes,

Many argue that negotiation does not have to be included in ADR as an

However, negotiation in ADR is not merely negotiation in the common sense of

all. ADR claims negotiation as one of its procedures because increasingly

agreements are structured to require parties to negotiate as a precondition to going

to litigation. Where such agreements exist, it is only after a good-faith attempt to