Many commentators have argued that the continued development of ADR is a response to problems encountered in the litigation process.62 Not only is litigation expensive, time consuming and chequered with unnecessary delays,63 it many times falls short of the required level of fairness. Alexander Bevan submits that “…the lack of fairness from various factors; poor, unspecialised or idiosyncratic judging can make the result a lottery depending on arbitrary points. If one party has a restricted purse, then the contest is immediately weighed against him. The richer party can pay for more skilled lawyers to exploit the intricacies of the system or simply hang on longer…Finally, delay is exacerbated by the poor communication engendered in turn by the combat mentality of litigation…Alternative Dispute Resolution (ADR) is a term
58 For a discussion on hybrid mechanisms, see William H. Ross and Donald E. Colon, ‘Hybrid Forms of
Third Party Dispute Resolution: Theoretical Implications of Combining Mediation and Arbitration’ (2000) 25 The Academy of Management Review 416; Robert Mnookin, ‘Alternative Dispute Resolution: An Economic Analysis’ (1998) Harvard Law School, John M. Olin Centre For Law, Economics and Business Discussion Paper Series, Paper 232, 1, 10.
59 This system is popularly referred to as Med-Arb, a model draft of this clause can be found in the
Mediation rules of the ICC <www.iccwbo.org/products-and-services/arbitration-and- adr/mediation/rules/> accessed 23 October 2014.
60 Paul Newman ( n 49) 68. 61 See Section 1.1.2 of Chapter Six.
62 Henry T. Edwards, ‘Alternative Dispute Resolution: Panacea or Anathema’ (1986) 99(3) Harvard Law
Review 668; ‘Dispute Resolution’ (1979) 88 (5) The Yale Law Journal 905, 907
63 Zeb-Michael Curtis, ‘Rethinking Prima Paint Separability in Todays Changed Arbitration Regime:
The case for Inseparability and Judicial Decision Making in the Context of Mental Incapacity Defences’ (2004-2008) 90 IOWA Law Review 1905, 1910.
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which refers to various procedures developed…in an attempt to overcome some of the weaknesses in the litigation…”64 Ironically like Susan Blake et al rightly noted, within the very strength of the litigation mechanism lies weaknesses. In a bid to be fair, the law and rules of procedure have become complex, thus extending the time and cost of court actions.65
Albert Fiadjoe also submits that “one of the main driving forces towards ADR is public dissatisfaction with litigation. It is not a secret that the search for alternatives to the adjudication model through courtroom litigation has been fuelled by the growing client dissatisfaction with traditional legal methods”.66 We have seen in Chapter Two
that the efficiency of the court system in Nigeria has been hampered by factors like lengthy industrial actions, delay and incompetent staff, with litigants being the ultimate losers in the whole process, thus emphasising the need for alternatives. 67 Jean-Francois Guillemin is however right to add that there is no single explanation for the growing popularity of ADR, “not even the convenient or simplistic argument that ADR is a way of avoiding a lengthy, complex and costly litigation…”68 In other words, the emergence and development of ADR is as a result of factors beyond the failings of litigation. Carita Wallgren-Lindholm also submits that “increased interest in ADR can hardly be interpreted at this point as a passing trend or merely as a response to negative factors attached to litigation, such as length and cost of legal proceedings…One reason for ADR being considered by the business community as an increasing alternative complement to litigation is that there are many situations today where the true object of a commercial dispute is not adequately resolved by a
64 Alexander Bevan, Alternative Dispute Resolution (Sweet & Maxwell 1992) 1. 65 Susan Blake et al (n 37) 6.
66 Albert Fiadjoe (n 26) 8; See also Richard C. Reuben, ‘Front Options, Consent to Arbitration, and the
Demise of Separability: Restoring Access to Justice For Contracts with Arbitration Provisions’ (2003) 56 SMU Law Review 819,822.
67 See also Austen Sarat, ‘Alternative Dispute Resolution: Wrong Solution, Wrong Problem’ (1988) 37(1)
Proceedings of the Academy of Political Science 162, 163.
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court ruling…”69 Under any of the ADR mechanisms however, parties are able to tailor their proceeding to suit the needs of their dispute.70
For example, parties are able to design a dispute resolution mechanism that fits nicely around the contours of specialised transactions like Islamic Finance.71 In addition, in modern times, commercial relations have the tendency to develop into real relationships, which many times extend beyond the contractual relationship between the parties.72 Parties to a large extent therefore want to avoid the irretrievable break down of their relationship, which results from the winner-takes-all approach of the court system.73 In addition, in Nigeria for example, local parties are said to be reluctant to participate in litigation proceedings74 because it is believed that litigants can never be friends after litigation.75 It has therefore proven to be useful in community issues where it is important to preserve the relationship between parties.76
Despite the varying but to a large extent valid arguments made to explain the development of ADR, one thing is clear and that is “…conflict resolution, through the processes of negotiation, mediation and arbitration, has become an acceptable and, indeed, inevitable part of creative lawyering in the 21st century…Today ADR processes are being applied worldwide to a universality of situations hitherto governed by litigation…From business controversies to labour management disputes, ADR is becoming the preferred choice for the resolution of conflict and disagreement…”77 ADR mechanisms have proven to be particularly useful in
69Carita Wallgren-Lindholm, ‘ADR and Business’ in Gerald H. Pointon, Arnold Ingen-Housz et al (eds), ADR in Business and Issues across Countries and Cultures ( Kluwer Law International 2006) 3.
70 Robert Mnookin, ‘Alternative Dispute Resolution: An Economic Analysis’ (1998) Harvard Law
School, John M. Olin Centre For Law, Economics and Business Discussion Paper Series, Paper 232, 1.
71 Aisha Nadar, ‘Islamic Finance and Dispute Resolution: Part 2’ (2009) 23(2) Arab Law Quarterly
181,192.
72 Walter Mattli argues that parties in long term relationships have a strong preference for settling
disputes through ADR; See Walter Mattli, ‘Private Justice in a Global Economy: From Litigation to Arbitration’ (2001) 55(4) International Organisation 919, 934.
73 Anthony Ogin, Michael Jones-Lee et al, ‘Evaluating Alternative Dispute Resolution: Measuring the
Impact of Family Conciliation on Costs’ (1990) 53(1) The Modern Law Review, 57.
74 Andrew Chukwuemerie, ‘Salient Issues in the Law and Practice if Arbitration in Nigeria’ (2006) 14
African Journal of International and Comparative Law 1,16.
75 There is a Yoruba proverb that says ‘Aa Kii ti Kootu de dore’ translated; ‘Friends who go to court never
return as friends’.
76 G.B.A Coker, Family Property among the Yorubas (Sweet and Maxwell 1966) 58. 77 Albert Fiadjoe (n 26) 1.
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situations where, for example, parties have and want to maintain a commercial relationship, since both parties have a mutual interest in the quick resolution of the dispute.78 These mechanisms are also useful in instances where neither party wishes to have the publicity associated with litigation,79 as well as many other situations.80 Needless to say, at the root of every ADR procedure is parties’ intention to resolve their dispute via the said mechanism.81