ADR MECHANISMS AND RESOLUTION OF LAND DISPUTES IN NIGERIA
By
Dr C. A. Omaka, LL.B, B.L, LL.M, PhD PGD (Theology), MIIA, MNBA, AMNIM, FNISM, MIBA, MGAJE, Dip (Microsoft) Cert. CLE (Durban
Director, Directorate of Clinical Legal Education Ebonyi State University
Email: amariomaka@gmail.com
Introduction
In traditional African society, particularly Nigeria
The law courts are usually used as last resorts for settling of these disputes in contemporary society unlike the situation in pre-colonial Africa . The so called settlements coming from court verdicts and judgments more often than not lead bitterness, rancour and perpetual enmity, not just between the disputants, but the entire family lineage and line generations. Similarly, the delay in the judicial system, high cost of litigation, technicality of the process etc makes the need to shop for alternative means of dispute resolution imperative- hence the recommendation ADR methods for resolving of land and other disputes with our local governmental system.
What is a dispute?
Dispute means to quarrel, struggle, fight, stand in opposition, stress differences or disagreement.[1]. It also means to engage in argument, controversy, debate, to question the truth or validity of[2] something. It is important to note that conflicts and disputes situations are used interchangeably to mean the same thing.
Conflicts and disputes are as old as mankind.[3] The Disciples of Christ had dispute over the issue of circumcision while St. Paul
Therefore, community leaders, councillors, local government chairmen and coordinators, employers / employees and indeed the government should rather seek for ways of resolving their disputes amicably through ADR processes, other than going to court and avoid unnecessary intra and extra enmity as the suit lasts or even after the court judgment.
What is ADR?
The term ADR is an acronym for ‘Alternative Dispute Resolution’. It is often used to describe a wide variety of dispute resolution mechanisms that are alternative to full-scale court processes. It is the settling or resolution of a dispute through negotiation, mediation, conciliation, arbitration[6], and or other hybrid processes as opposed to litigation.[7] This is an alternative to going to court to settle disagreements. It is seen as the methods of resolving disputes in a less adversarial manner, without going to trial. It is conceived as a body of dispute resolution techniques which avoid the inflexibility of litigation and arbitration, and focus instead on enabling the parties to achieve a better or similar result, with the minimum of direct and indirect cost
ADR process as institution is not new. It has been used many centuries ago before the beginning of the English common law. It is known to be the oldest known method of settlement of disputes between men.[8] It has always been with us. It is an informal, non-adversarial and confidential process whereby parties voluntary determine the process to adopt in resolving their disputes. Traditionally, our local chiefs, church leaders and some stakeholders usually act as either a mediator or an arbitrator to resolve disputes between disputants. In fact, King Solomon’s wisdom came to limelight when he deployed ADR method of mediation to settle the women contesting for a baby.[9] Consequently, ADR can be referred to every method which facilitates settlement.
There are several forms of ADR. As seen above, some of these include negotiation, mediation, conciliation, arbitration and other hybrid processes. The major types shall be discussed in the course of the presentation
Sources of Disputes
Prof. Eghosa E. Osaghae[10] tells us that, “conflicts are propelled by basically the same factors – struggle for scarce resource, social injustice, class antagonisms, unequal power relations, differences in values and interests and state and government partisanship.” Other factors, according to Prof. Osaghae include, “diminishing resources, contradictions of economic and political reforms and the emergence of a generation of frustrated and unemployed youths desperate to make ends meet in a depressed economy…”[11]
In handling conflict, it is important to determine the source[12] of that conflict to enable the mediator proffer a lasting solution. It has been observed that conflict usually steams out as a result of lack of resources; psychological need; and disputes involving values.[13] Disputes over resources are usually easy to identify. This occurs when two or more people want the same thing and it is not enough to go round. For example, “you took my chair”. Usually when the resources are made available the dispute is resolved. Psychological needs are esteem needs where an individual or group wants to gain an approval or receive attention. To feel secure, seek pleasure and avoid pain. Consequently where the variables that give security and comfort are not provided, one tend to revolt. Disputes involving values are most times difficult to understand. They are our belief system and most time, we are often not prepared to negotiate. We often see parties involved in dispute over values defending their positions strongly. This type of dispute is more likely to be resolved when parties understand and respect each other’s values.[14]
Finally, in various corporations and workplace, it is important to understand the source of conflict before resolving it. Sometimes, disputes have several sources. For instance, ‘a girl who wants to sit on a particular chair, closer to her friend’. The dispute is not just resource-based but she also has a psychological need of sitting close to her friend. Unless the real issue is determined, providing her with a chair in another place will not solve her problem, therefore, identifying the real source of any dispute is half solved.
Land Disputes and Causes of Disputes
Land is one major cause of disputes in Nigeria
In Ebonyi State Cross River
Sometimes, there is conflict with an identified source, like ownership of cemetery, bamboo groove, markets, village squares, streams etc. For instance, others may wish that the stream be used for bathing while some feels that it should be used for drinking. Here the source is the stream while the cause[15] of the dispute is in the use.
At time, disputes are usually linked to communal or personal ego. Everyone and all people have dignity and deserve respect. For example, Prince Adewale killed his victim in Ola Rotimi’s “The gods are not to Blame” because his tribe was called a remote and uncivilised one. Disputes are the by-product of people having needs, interests and goals that are divergent. This situation is compounded because of the diversity of human kind[16]. Knowing the source and the cause of a conflict will help the mediator in resolving the dispute amicably and effectively[17]. Thomas Maslow in his hierarchy of needs emphasised this.[18].
ADR Conflict Management and Prevention
It is true that conflict situations arise almost daily in workplaces and among neighbours. In preventing and managing conflict, it is proper that one keeps oneself from being easily upset. The easy way, is becoming aware of the emotions as it arises and refusing to identify with it by slowing down one’s speed of reply. If one feels too agitated to do so, then physical movement helps. Get up and move around. Other ways includes:
(1) Providing early warnings: The goal of early warning systems may be conceived as avoiding or minimizing violence, deprivation or crises that threaten the stability of human development.[19]
(2) Do not take verbal attacks on you too personally, as the person concerned probably behaves like that to most people.
(3) Adopt a consistent approach towards conflict-prone people, so that, they know where they stand with you.
(4) Do not be taken by surprise by conflicts.
(5) Community leaders and grass root administrators should be trained and educated on ADR processes.
(6) Set a time limit on the discussion right at the outset, terminate the discussion the moment time is up[20] and try to have a heart to tolerate and accommodate other people’s shortcomings, as we all have one.
(7) Creates an objective and fair blueprint for a step-by-step complaint resolution process before the need arises.
(9) Gives people a road map or guide to follow when inappropriate behaviours occur in the community or workplace or when policies create systemic barriers.
(10) Allows people to make informed decisions about the process in which they will be involved, before coming forward with a complaint.
(11) Sends a message to people on any new government or official policies timely before rumours heighten to conflicts;
(12) Reinforce the view that being respectful of others is a core value.[21]
Mediation can also save valuable time, money and other resources by focusing people on problem solving rather than costly complaint escalation.
Finally, as chief security officers of grassroots, budgeting for conflict prevention and mediation should be part of local governments and development centres strategic planning.
Disputes that can be referred to ADR
Sometimes people become involved in disputes which, although very important and worrying to those concerned, are better resolved outside the comparatively expensive court system. Some disputes do not have a legal solution, while others may be made worse by court action. This is because sincere settlement gotten from ADR is more lasting and satisfying to the parties.
The following are some examples of disputes often settled by ADR, although not limited to the following issues:
1. Business disputes such as contracts, partnerships etc.,
2. Property/Land use disputes example, property transfers, boundaries, and easements;
3. Family disputes such as divorce, property, custody, visitation, support and maintenance issues;
4. Consumer/Collection disputes example, repairs, services, warranties, and debts;
5. Employment disputes such as employment contracts, and terminations;
6. Landlord/tenant disputes like, evictions, rent, repairs, and security deposits;
7. Neighbourhood disputes/Relational disputes or other civil or personal conflicts;
8. Personal Injury / Insurance disputes such as accidents, coverage, and liability[22].
Issues referred to ADR processes must be justiciable issues, which can be tried as civil matters. They must be disputes that can be compromised by accord and satisfaction.[23]
ADR Methods and Processes
ADR processes generally may be categorized as negotiation, mediation, conciliation, arbitration and other hybrid systems. It is important to state, that there is no special form of instituting ADR processes. In Arbitration, parties are expected to file their Points of Claim and defence.[24] And in court-connected ADR parties are required to file their written request form[25] while in other forms of ADR parties may state their cases either orally or written. It is desirable that the mediator should state and write down clearly all points and issues raised in the processes to enable the parties understand and appreciate the process. ADR processes include:
Negotiation
Negotiation systems create a structure to encourage and facilitate direct negotiation between parties to a dispute, without the intervention of a third party. It is the most common form of dispute resolution. Negotiation is the process by which the parties voluntarily seek a mutually acceptable agreement to resolve their common dispute. Negotiation generally allows the disputants themselves to control the process and the solution. In negotiation, participation is voluntary and there is no third party who facilitates the resolution process or imposes a resolution. In practice however, a third party like a chaplain or organizational ombudsperson or social worker or a skilled friend may be coaching one or both of the parties behind the scene, a process called "Helping People Help Themselves", which may includes a section or helping someone draft a letter to someone who is perceived to have wronged them.
Mediation
Mediation is a voluntary and informal process in which the disputing parties select a neutral third party (one or more individuals) to assist them in reaching a mutually acceptable settlement. Unlike a judge or arbitrator, the mediator has no power to impose a solution on the disputants; instead, the mediator assists them in shaping solutions to meet their interests.
Mediators can employ a wide-range of techniques, to assist parties to communicate effectively and to develop a cooperative, problem-solving attitude; identify parties' underlying interests; identify and narrow issues; transmit messages between parties; explore possible options for agreement and the consequences of non-settlement.
A mediator may even suggest a resolution, typically known as a "mediator's proposal", but does not impose a resolution on the parties. Anyone can act as a mediator, although it is much better to use someone who has been trained in the process and is aware of what works and what doesn't. A mediator is a facilitator.[26]
Conciliation:
Conciliation is a process in which a third party meets with the disputants separately in an effort to establish mutual understanding of the underlying causes of the dispute and thereby promote settlement in a friendly, unantagonistic manner. Often the first step, and at times sufficient, to resolve disputes.
Conciliation and Mediation systems are very similar in that they interject and act as a third party between the disputants, either to mediate a specific dispute or to reconcile their relationship, although conciliators are often seen as being more interventionist as it is provided for in the Act[27].
Mediators and conciliators may simply facilitate communication, or may help direct and structure a settlement, but they do not have the authority to decide or rule on a settlement. Conciliators may contribute their own views and opinions during the conciliation process and often the options for settlement will be restricted by legislative requirements.
Arbitration
Arbitration authorizes a third party to decide how a dispute should be resolved. It is an adjudicatory dispute resolution process in which one or more arbitrators issues a judgment on the merits (which is usually binding) after an expedited, adversarial hearing, in which each party has the opportunity to present proofs and arguments. Arbitration though procedurally less formal than court adjudication has its rules[28] that govern the procedure.
In arbitration, although participation is typically voluntary, but the arbitrator/third party who, as a private judge imposes a resolution which is usually binding on the parties and regarded as an award[29]. Arbitrations often occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration.
Arbitration is very much like a private court case where, instead of a judge, you have an arbitrator. The procedure is very similar and the rules of evidence apply with arbitrations just as much as with litigation and court connected ADR.[30]
Appointment of Arbitrators:
According to section 6 of ACA, the parties may determine the number of arbitrators to be appointed under the agreement, but where no such determination is made, the number of arbitrators shall be deemed to be three.
The parties may specify in the arbitration agreement the procedure to be followed in appointing an arbitrator. Where no procedure is specify ACA provides in section 7 (2) thus:
(a) in the case of an arbitration with three arbitrators, each party shall appoint one arbitrator and the two thus appointed shall appoint the third[31].
Grounds for Challenge
Section 8(3) of ACA provides grounds for challenging an arbitrator. The grounds include:
(1) Impartiality:
(2) Independence
(4) Bias: Bias is a state of the mind which inspires prejudice in favour of, or against a person or an issue and can arise from all sort of reasons.[33]
An Award:
An Award means a final award which disposes of all issues submitted to the arbitral tribunal and any other decision of the arbitral tribunal which finally determines any question of substance or the question of its competence or any other question of procedure but, in the latter case, only if the arbitral tribunal terms its decisions award.[34] It may be gleaned from sections 24 and 28 of ACA that award is the final and binding decision by an arbitrators in the full settlement of a dispute. The arbitral tribunal after taking testimony and hearing arguments from both parties will consider the totality of evidence and set down a decision in the form of an award.[35]
An award should be made in writing and contain the findings, reasons and decision of the arbitral tribunal upon the matters in dispute. It should be clear and unambiguous. The arbitrators must sign the award. If the arbitral tribunal is constituted by three arbitrators, the signatures of the majority of them is enough to give validity to the award provided that the reason for the absence of any signature is stated on the award.[36] The date and place of the award must also be stated on the award and the arbitral tribunal is expected to give a copy of the award to each of the parties.[37] The parties undertake to carry out the award without delay.[38]
Outcome of ADR processes
A successful mediation of workplace or organizational harassment and discrimination complaints can result in the following solutions and outcome:
(1) an oral or written apology;
(2) a change in behaviour which may be moving from offensive to acceptable behaviour;
(3) voluntary participation in the common / communal programme, awareness and other forms of capacity building activities;
(4) voluntary changes to existing reporting and coordinating relationships;
(5) mutually acceptable language to describe certain past events to co-workers, external people or the media;
(6) increased work-related opportunities or different working conditions;
(7) management commitment to create new or revised policies that address systemic issues;
(8) formal settlements of human rights complaints or civil actions that include: the payment of damages for loss of dignity, economic loss, costs; and confidentiality;
(9) an outcome or agreement that can be acted upon without violating personal and employer values, ethics or law.[39]
Hybrid or other forms of ADR processes
Recently, a wide variety of hybrid models have emerged in developed and developing countries. Below are some examples of hybrids processes, Med-Arb, Arb-Med, Ombudsperson:[40].etc
Comparison and basic features of each ADR method
S/NO | NEGOTIATION | MEDIATION | HYBRID | ARBITRATION | LITIGATION |
1 | Voluntary | Usually voluntary | Voluntary | Not voluntary | |
2 | Non-binding | Non-binding | Non-binding | Binding | Binding |
3 | No third party | Third party selected by the parties as a facilitator | Third party selected by the parties as a facilitator | Arbitrator appointed by either the parties or the court | A judge or a magistrate presides |
4 | Informal | Informal | Informal | Less formal | Formal |
5 | No specific rules | No specific rules | No specific rules | Simi-rigid rules | Rigid rules |
6 | Outcome: mutually acceptable by the parties | Outcome: mutually acceptable by the parties | Outcome: mutually acceptable by the parties | Outcome: Award which is enforceable | Outcome: imposed decision, supported by reasoned opinion |
7 | Private | Private | Private | Less private | Public[41] |
* This table shows the distinction between ADR processes and litigation.
Advantages of ADR
1.ADR programs can:
2. Support and complement court reform;
3. By-pass ineffectiveness in some courts processes;
4. Increase popular satisfaction with dispute resolution;
5. Increase access to justice for disadvantaged groups;
6. Reduce delay in the resolution of disputes;
7. Reduce the cost of resolving disputes
8. Increase civic engagement and create public processes to facilitate economic restructuring and other social change[42];
9. Help reduce the level of tension and conflict in a community;
10. Manage disputes and conflicts that may directly impair development initiatives.
11. Reducing the cost to parties:
12. Reducing the formality of the legal process:
13. Overcoming the barrier of illiteracy:
15. ADR programs can reduce delay in the resolution of disputes:
17. Disputes are fewer and quicker to resolve:
18. ADR programs can help manage conflicts that may directly impair development initiatives.
19. an opportunity for recipients of inappropriate behaviour, harassment and discrimination to be empowered;
20. a safe place for emotions to be expressed, concerns to be aired, and needs to be acknowledged without negative and stereotypical labels such as victim, trouble maker, racist or harasser;
21. a safe place for those who engage in inappropriate conduct to voluntarily agree to modify their behaviour;
22. equal opportunities for participation without casting blame or concentrating on liability and punishment;
23. “win/win” or interest-based solutions that are future-focused, action-oriented and proactive;
24. resolution within hours or days, instead of years.
25. Often quicker than going to trial, a dispute may be resolved in a matter or days or weeks instead of months or years.
27. Permits more participation and empowerment, allowing the parties the opportunity to tell their side of the story and have more control over the outcome.
28. Allows for flexibility in choice of ADR processes and resolution of the dispute.
29. Fosters cooperation by allowing the parties to work together with the neutral to resolve the dispute and mutually agree to a remedy.
30. Often less stressful than litigation. Most people have reported a high degree of satisfaction with ADR.
31. Encourage communication and self-reflection rather than blaming and point accusing fingers on someone else.
32. Allow people to identify and focus on their needs rather than their ‘positions’ or demands.
33. Shift people from expressing their ‘power’ to collaborating on creative solutions to address current and future needs of all stakeholders.
Many studies of developing country ADR systems offer evidence that the systems have been effective in processing cases quickly, at least relative to traditional court systems[46]. A judge in Ukraine
Disadvantages of ADR
(1) ADR may not be suitable for every dispute especially, where intricate questions of law arise, ADR may not be suitable. In such cases it would be cheaper and more expeditious for the parties to take their differences at the outset to the court;
(2) Another major weakness of the process is the limited powers of the mediators. The processes powers fall short of those conferred upon a court of law. For example, the process does not possess the power to compel the attendance of parties and their witnesses under penalty of fine or imprisonment, or to enforce its decisions;[48] that is save for arbitration, other forms of ADR does not have its Rules or Force of Law.
Conclusion
Disputes are natural among all people. The courts do not help matters due to protracted litigation. Moreover, the cost of litigation can be monumental. ADR becomes a better alternative for land and other non-criminal disputes. Why not try it!
[1] Webster’s Advanced word dictionary (2007) Webster’s publications. Oxford
[2] Hornby Oxford advanced Learners Dictionary of Current English, 3rd edition, (2008) p. 252
[3] In Revelation 12:7, (KJV), war broke out even in heaven!
[4] Act 15:1 - 41
[5] Segun Ogunyannwo, The Effective Mediator, 1st ed., Hephzibah Publishers, (2005), p.182
[6] Arbitration is not purely ADR, however, since it is not pure litigation it is also seen as alternative to litigation.
[7] www.abanet.org/legalservices/findlegalhelp/faq_legalterms.cfm
[8] Frank Elkouri, et al, op cit, p. 2
[9] I king 3:16-28, KJV, that is, the issue of the two harlots. One with a life child while the other had a dead child. King Solomon mediated between the two women to resolve and discover the truth.
[10] Cited by Segun Ogunyannwo, op cit, p. 182
[11] ibid
[12] Source in this work means place from which something comes or is got, starting point or the root.
[13] A.A. Olowu, Nature, Sources and Causes of Disputes in Human Relation, (2005) in ADR Course materials, Professional Foundation Course, Part 1. p. 18
[14] ibid, p. 19
[15] Cause means reason, purpose for doing a thing.
[16] According to the popular Maslow’s theory
[17] Sources and causes are usually used interchangeably because identifying any of these issue will somewhat give a ‘healing balm’ to the parties. But in this work they are not the same as the source of anything may be the origin, while the cause may be a part or branch of the source.
[18] Cited by A.A. Olowu, op cit, p. 18
[19] Segun Ogunyannwo, op cit, p. 197
[20] A.A. Olowu, Op cit, pp. 14 - 15
[21]Lynch, J. “ADR and Beyond: A Systems Approach to Conflict Management”. Negotiation Journal, Volume 17, Number 3, July 2001, Volume, p. 213
[22] http://www.fresnosuperiorcourt.org/alternative_dispute_resolution/|top|top
[23] Rev. Fr. Edwin Obimma Ezike, Lecture Notes on Law of Arbitration 1 (LAW 512), faculty of Law, university of Nigeria
[24] See s. 19 ACA. Points of claim and defence operate just like the way pleadings are in litigation.
[25] Abuja MDC Rules 2 –3 of Mediation & Arbitration Procedure Rules (2003), provides that the request form shall contain a brief statement of the nature of the dispute, names, addresses and telephone numbers with the appropriate filing fees.
[26] Facilitation refers to a process by which a third-party neutral helps the parties reach consensus on disputed issues. A mediator is a facilitator.
[27] See ss. 37 – 42 of ACA
[28] ACA and UNCITRAL Arbitration Rules.
[29] ss. 26, 28, 29, 31, 32 of ACA made provide for an Award made by arbitral tribunal. While ss. 6 –7 made provisions for number and appointment of an arbitrator.
[30] High lights of Arbitration and the court connected ADR are discussed in this research to enable us understand this work, to the effect that directors and shareholder now have a wide range of mediation processes to adopt before going to court if the need arises.
[31] In conciliation, in the case of one conciliator, jointly by the parties; in the case of three conciliator – one conciliator by each party and the third conciliator jointly by the parties. After the conciliation body has examined the case and heard the parties shall submit its terms of settlement to the parties, if the parties agree with the terms, the conciliators shall draw up and sign a record of settlement. Where the parties do not agree then other form of ADR may be used according to their agreement or take any action in court as they may deem fit. See ss. 37 –42 of ACA.
[32] See Johnson v. Cheaper (1817) 5 Dow. P. 247
[33] Rev. Fr. Edwin Obimma Ezike, (LAW 512) op cit, p. 58
[34] Broches, Recourse Against the Award; Enforcement of the Award, UNCITRAL’S Project for a Model Law on international Commercial Arbitration, ICCA Congress Series No. 2 (1984), p. 208. Cited by Rev. Fr. Edwin Obimma Ezike, (LAW 512), op cit, p. 76
[35] It is just like final judgment given by judges in courts.
[36] See s. 26 (2) of ACA
[37] See s. 26 (3) and (4) of ACA
[38] See Article 32 (2) of Arbitration Rules
[39] Http/www/alternative_dispute_resolution/note. Accessed on 15/1/2010.
[40] This process is common in Japan
[41] Segun Ogunyannwo, The Effective Mediator (2005), 1st ed. Hephzibah publishers, Nigeria
[42] Because the process involve the corporation of the parties.
[43] The lok adalat ("people's court") system in India Sri Lanka China
[44] Many of the NGOs established to promote conflict management in South Africa
[45] Especially, where special experts are needed to interpret a document or assist the court over figures etc.
[46] The Mediation Boards in Sri Lanka Sri Lanka
[47] See Sri Lanka
[48] Although such actions are usually taken indirectly, through the machinery of the courts, rather than directly, as a judge himself can do.
please I need to know what books to use to write on AN ANALYSIS OF THE LEGAL FRAMEWORK OF ADR IN NIGERIA, IT WAS APROJECT GIVEN TO ME...THANKS
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