- I dedicate this episode to my mum-Mildred Obiageli Egbunike (Nee Bosah), who passed away on Saturday 6th March 2021. My angel, you looked forward to listening to this session with Prof, but the good Lord took you to be with Him and watch over us. Love you forever mum -till we meet to part no more! Rest in the Lord.
What is Alternative Dispute Resolution (ADR)?
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.
What is your advice to someone that wants to pursue a career in Arbitration?
She pointed out that engaging in an area of practice does not have to be only legal practice. They can be doctors, engineers, or accountants; disputes arise from all various human endeavours. Thus, people seeking to pursue a career in ADR should carry on doing what they are doing but get some professional training in resolving disputes.
What is your advice for potential users of ADR?
Users need to know their disputes, know what they want to get out of them, and not be afraid to try new people. Onyema stated that a lot of work has been done on diversity. However, for those interested in diversifying dispute resolution- the decision-makers are afraid of appointing a new person they have not used before. The critical thing is that somebody has to take that initial risk, so it is a supply and demand thing. Suppose arbitrators are getting themselves prepared and working hard and preparing to get that appointment. Those who make an appointment have to take that risk.
Hence, it is in the parties hands to widen the pool; they have to be willing to risk appointing a new person, a newcomer who has done some work or has some experience in other fields. Akin to giving equal opportunity- some form of equality to everybody, which will ultimately benefit disputants much more because they will have many more people than they can call upon to resolve their disputes.
This essay has provided a contemporary view on why arbitration does not fall into ADR while at the same time highlighting its effectiveness. This essay has also provided a well-detailed analysis of the benefits of arbitration, the need for arbitrators to be visible and uncovered the hoodoo in getting professional training as an arbitrator.
To hear the full version of episode 15 of EVA, click here.
SOAS University of Law, School of Law: Professor Emilia Onyema <https://www.soas.ac.uk/staff/staff31559.php> accessed on 3rd March 2021
African Arbitration Association <https://afaa.ngo/page-18083> accessed on 2nd March 2021
Chinwe Stella Egbunike- Umegbolu, Dispensation of Justice: The Lagos Multi-Door Courthouse (LMDC) as a Case Study (Ongoing-research at the University of Brighton 2018-2021) 89.