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Critical Examination of Alternative Dispute Resolution

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Critical Examination of Alternative Dispute Resolution International Journal of Research and Review Vol.7; Issue: 11; November 2020 Website: www.ijrrjournal.com Review Paper E-ISSN: 2349-9788; P-ISSN: 2454-2237 Critical Examination of Alternative Dispute Resolution Isaac Olaitan Okeya Management Consultant Liverpool UK, Former Dean Faculty of Management Sciences, College of Technology, Esa Oke, Nigeria and Former Controller Owena Bank Plc. Nigeria. ABSTRACT INTRODUCTION It has been observed from survey This research work will centre on, among report that most people desire from our many other things, matters which broadly modern justice system, is to avoid going to affect “Alternative Dispute Resolution.” trial. Most problems associated with Alternative disputes resolution, is popularly litigation include illiteracy of the law and known to be called ADR, has been noted to have embraced different methods of resolving the legal system due to its complicated different disputes, although it is commonly language and quaint procedures, and the ill viewed as a form of assisted negotiations with a faith in the court‟s fairness or its efficiency 2 central objective of dispute resolution: as a means of resolving disputes. Also, this alternative to traditional processes used by the is associated with factors such as high costs, law. Therefore, ADR is more of a consensual the endless delays, the tottering heaps of process, that is, it requires consent from the papers which take over their lives; therefore, parties involved, and its outcome are non- litigants seem to prefer a simpler approach: binding, so as such the dispute might not have a process conducted in plain language, been resolved. based on common sense, and geared to Prior to the development of Alternative dispute getting problems sorted out around a table resolution, disputes are often resolved by courts through litigation process, and in most times, rather in the hot atmosphere of the court room.3 justice is not served. So ADR in its core field, 4 encourages litigants to avoid going to court, and Lord Woolf, in his Interim Report , in some cases, with appropriate advice, avoid described how the use of ADR had grown such legal processes altogether. worldwide and how it should be fostered. The expression “alternative dispute Litigation might not be best in all cases, and resolution” is also described in the glossary to there was a need to increase awareness of the Civil Procedure Rules as a “collective ADR.5 In his final report in 1996, Lord description of methods of resolving disputes Woolf argues that where there was a otherwise than through the normal trial satisfactory alternative to the resolution of procedure”. In this broad sense, of course, disputes in court, the courts should ADR is by no means a novel phenomenon, encompassing everything from the last-minute encourage the use of this alternative. Court “deal” at the door of the court to a formal staff and judges should know about the arbitration.1 forms of ADR that existed and what could be achieved through using ADR. At the case Keywords: Alternative dispute resolution, consensual process, assisted negotiations, non- 2 A. Acland, Resolving Disputes Without Going to binding and alternative to traditional processes. Court, (London: Century Ltd, 1995), p. 1 3 ibid 4 “Access to Justice”, 1995 5 H. Brooke, “Mediation in personal injury and 1 M. Supperstone et al, “ADR and Public Law”, clinical negligence cases”, (2008) 4, Journal of (2006) sum, Public Law, pp. 299-319 Personal Injury Law, pp. 296-307 International Journal of Research and Review (ijrrjournal.com) 95 Vol.7; Issue: 11; November 2020 Isaac Olaitan Okeya. Critical examination of alternative dispute resolution management conference and the pre-trial value. In 1990, the non-profit Centre for review, the parties should state whether Effective Dispute Resolution (CEDR) and ADR has been discussed and if not, why the ADR Group entered the ADR not. In deciding on the future conduct of a marketplace, and they are still among the case, the judge should be able to take into market leaders, although there are about 50 account a litigant's unreasonable refusal to accredited civil mediation providers today.10 try ADR. He added that the Government So far as court-based ADR in the should also treat it as one of their UK is concerned, the beginnings occurred responsibilities to make the public aware of with the first Commercial ADR Company, the possibilities which ADR offers.6 the International Dispute Resolution (IDR) Although, it was suggested that the was introduced in Europe, in the early American style should be considered, by 1990s, when parties were required to making ADR compulsory, but this opinion exchange lists of neutral individuals; to try was refused.7 in good faith to resolve their dispute by However, Lord Woolf's ADR; or to take serious steps to resolve recommendations have become both their dispute by ADR. The litigation might familiar and generally accepted by be stayed while these efforts were made.11 practitioners. Therefore, the Report In the 1970s, there was an increasing concluded that the English civil justice concern about the costs and delays in the system was: legal system, and the tainted effect it has on everything from insurance premiums to “… too expensive in that the costs often general consumer cost.12 According to Sir exceed the value of the claim; too slow in Lightman, this has given rise to issue of bringing cases to a conclusion… too how to provide the protection of the law unequal… too uncertain … and too 8 where the citizen does not have the means to adversarial…” pay for such protection, or cannot afford the Alternative dispute resolution risk of losing, and in consequence incurring the risk for the opponent‟s costs and of became the focus of much attention during 13 the 1990s. The principal form of ADR consequent bankruptcy. nowadays is mediation. Other variants Amongst the merits associated with include conciliation, early neutral evaluation ADR, it is faster and cheaper than litigation and mini-trials. There is also the traditional but if it is unsuccessful in resolving the technique of inter-party negotiation--a disputed issues, it may only increase the technique which for many years has brought cost and delay in resolving such dispute. about the settlement of the majority of all Therefore, ADR may enable parties to settle civil cases commenced in the High Court.9 disputes which could not be resolved by As court-based ADR as well as ADR conventional inter-party negotiation. Also, initiated outside the court process, began to in the case of disputes which are going to develop across the Atlantic, English settle eventually, ADR may facilitate earlier commercial lawyers started to realise its resolution (thus avoiding door-of-court settlements). Again, ADR may lead to forms of resolution, which go beyond what the 6 Ibid, p. 297 7 Lord Phillips C.J, “Alternative Dispute Resolution: An English Viewpoint”, (2008) 74(4), Arbitration, pp. 406-418 10 Brooke, “Mediation in personal injury and clinical 8 K. Conway, “ADR- Does It Work in Landlord and negligence cases”, p. 297 Disputes?”, (2005) 9(1), Landlord and Tenant 11 Brooke, “Mediation in personal injury and clinical Review, pp. 7-10 negligence cases”, p. 297 9 J. Jackson, “Address by Jackson J. to TECBAR, 12 Acland, Resolving Dispute, p. 14 TeCSA and SCL”, (2005) 21 (4), Construction Law 13 G. Lightman, “Mediation: an Approximation to Journal, pp. 265-274. Justice”, (2007) 73(4), Arbitration, pp. 400-402 International Journal of Research and Review (ijrrjournal.com) 96 Vol.7; Issue: 11; November 2020 Isaac Olaitan Okeya. Critical examination of alternative dispute resolution court could order, and successful, ADR is resolution will be possible. However, in quicker and cheaper than litigation.14 those categories of case which are suitable, There exist, however, some ADR makes an important contribution to disadvantages of ADR, which includes, by achieving early settlement. Successful definition, ADR cannot result in a binding mediation depends heavily on the quality outcome. Also, if ADR is unsuccessful, the and skills of the mediator. Proper specialist process has simply increased the costs and training is required by all who practise as delay of the litigation. And even if ADR is mediators.18 successful, the outcome may not coincide with the legally correct resolution of the MEDIATION dispute. 15 However, it has been noted that, of It is thus, clear from the growing all the alternatives ADR has on offer, by far popularity of ADR that there is a swathe of the most widely used is „Mediation‟, due to cases in which, from the litigants' point of the fact that it is neutral, independent, view, the advantages of ADR substantially flexible and effective of ADR processes.19 outweigh the disadvantages. In March 2001, The Centre for Effective Dispute the Government gave an “ADR pledge”. Resolution, gave an accepted definition of This included a commitment that ADR mediation20as: would be “considered and used in all suitable cases whenever the other party “....a flexible process conducted accepts it”. Subsequent monitoring shows confidentially in which a neutral person that this pledge has been honoured. In the assists the parties in working towards a financial year 2002-03, there was a massive negotiated agreement of a dispute or increase in the use of ADR in disputes difference, with the parties in ultimate involving government bodies. It has been control of the decision to settle and the estimated that this saved the public purse terms of resolution.” over £6 million in costs.16 17 Therefore, mediation can be As Lord Phillips noted that : described as processes by which impartial “....That was my first lesson in the merits third parties assist two or more parties of ADR.
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