We concluded by revealing the need for professional training as an arbitrator while touching on what potential users and persons who want to pursue a career in ADR, particularly arbitration, should look out for.

This essay set out to understand an established ADR Practitioner / Academia’s view and experience in the field of ADR – arbitration to be precise.

The term  ‘ADR’ clearly begs the question of Alternative to what? If it is looked at as an alternative to litigation, then every other method of resolving disputes outside of litigation in the court system will fall within ADR.  Then again, it is an Alternative to Adjudicative processes of dispute resolution. It means that anything outside of Litigation, Arbitration or Adjudication, or anything where a third party makes a decision for the parties-these falls within ADR. So it is always helpful to clarify what the Alternative is or is related to.

Professor Onyema emphasised ‘that quite a lot of Arbitration lawyers like herself will not consider Arbitration as falling within ADR because it is a process wherein a third party decides or makes a decision for the parties, unlike Mediation or Conciliation where the third (3rd) party supports the parties or the disputants to decide for themselves.’

Thus in Arbitration, the parties can get a private judgement; they can get an award which the court will back up and enforce. On the other hand, in Mediation, what the parties get is still a settlement agreement that the parties have signed onto, which they need to go to the court to accept before they start the enforcement process. In other words, Mediation is not self-enforcing akin not the same value as a Judgement. It does not have a res judicata effect, so some scholars resist Arbitration being looped in the same category as Mediation or Conciliation processes.

Professor Onyema revealed that she started out as a legal practitioner (called to the Nigerian bar in 1989, almost twenty (20) years ago), and one of the things that introduced her to Arbitration was the first time she acted as a Counsel in the Construction disputes in an Arbitration. That was what intensified her interest in arbitration.  It is essential to point out that in those days, Arbitration or ADR was not taught as part of Nigeria legal degree, not even in law school.

 In other words, she did not start sitting as an Arbitrator or was not actively engaged until she came to the United Kingdom to do her PhD. She had participated in the Chartered Institute of Arbitrators in early 2000; they had a mentoring scheme and had a mentor. She sat in one of his Arbitrations; that was basically how her journey in Arbitration commenced.

 

Throughout your journey as an ADR Practitioner/Academia, have you had any cause to doubt the effectiveness of ADR, to be precise, Arbitration?

Mediation is a very useful tool that empowers the parties. For instance, it is like thinking of the information age, which is now, people are bombarded by so much information because they take on so many responsibilities. They need to sieve through all the information they are receiving. They are forced to think, at least critically engage with the information they are receiving to know whether it makes sense for them to believe it and what should they do with it, and that is what mediation does for the parties.

Essentially in mediation, parties do not effectively hand over their dispute to legal representatives; they are engaged in that dispute. Mediation looks at the parties and what would be beneficial to them.  Hence, most times results in a win-win situation because sometimes it is just an apology that is all that a party wants or in commercial mediation might be a case of terminating the contract or one of the disputing parties can supply something else. So there are imaginative solutions with the commercial outcome in view.

On the other hand, in Arbitration, depending on the jurisdiction and depending on how important that particular dispute is to the parties, it might be that they are knowledgeable either in the law or in the subject- matter of the dispute, then they can make decisions in a timely fashion.  Hence for commercial parties, the disputes must be resolved within a very reasonable time. However, in the Nigerian Jurisdiction, going before the judiciary- the delay or the time it takes just to go through and get a decision is horrendous; it is difficult. Unfortunately, the resultant effect is that litigants might not be satisfied with the quality of their judgment.

On the contrary, one of the good things about Arbitration is that arbitrators make reasoned decisions. For example, an Arbitrator will not say, ‘I prefer Chinwe’s submissions to Emilia’s submissions, so Chinwe wins.’  Then again, it begs the question, how did he arrive at that decision? Hence, the arbitrator has to read the judgement or get to a decision so that it actually makes sense. The parties can see why they lost.

However, not in all court judgements, they get that- in some Jurisdiction, reading the court’s judgement, it is copy and paste. And the question that comes to mind will be, ‘I know what the claimant/respondent said. But how did he/she apply the law to arrive at a decision? How did I lose? On the other hand, Arbitration is expensive because the parties pick up all the cost, while mediation is not as expensive as the former. However, they are expensive mediators, but meditation is a lot faster. How then would parties know which of the mechanisms to opt for?

We believe that parties need to understand what they are disputing over and then have a good understanding of what they want out of that dispute the sort of outcome they want. Then all of that is a basket of all sorts of considerations that parties need to engage with to enable them to determine which of the processes/mechanisms or dispute resolution tools will be best for them.