Episode 20: Civil Dialogue the Bridge to a Better World with Charlie Young

Mr Charlie Young
Abstract
I was pleased to welcome  Mr Charlie Young, an Experienced Mediator and a facilitator in the Oregon Foreclosure Avoidance Programme. He holds a BA from St. John’s Seminary and served as a priest for the Baker City, Oregon Diocese from 1958 to 1977.
Charlie Young is the author of “Constructive Communication with a Path for Challenging Situations.” His book “Constructive Communication”, revised 2020, results from his experiences as a pastor, flight instructor, corporate pilot, Human Resources Director, Safety Officer, Head Trainer of TQM and 23+ years as a mediator.
In this episode, we analysed the following questions:
1) What does Constructive / Inclusive Communication entail?
2) Where can it be used?
3)  Is perception essential for Inclusive Communication?
4) What are the basis and importance of perceptions?
5) How can Confirmation Bias affect Inconclusive communication?
6) What are the main hindrances to Inconclusive communication?
7) In your book- Constructive Communication: A path for Challenging Situations, you used the acronym VECS; Can you explain this acronym?
*charlie.y.bend@gmail.com
https://www.instagram.com/p/CYmitMxtraA/
https://www.youtube.com/watch?v=yBFCvU_E25k
To be continued

Episode 19: Professor David Allen Larson on Designing a State Court Small Claims ODR System in New York

Professor David Allen Larson

 

Abstract

I was super excited to welcome David Allen Larson, a Professor of Law at the Mitchell Hamline School of Law and Senior Fellow at the Dispute Resolution Institute. He is currently the Chair of the American Bar Association Section of Dispute Resolution, Co-Chair of the Section’s ODR Standards Task Force, and was a member of the ABA E-Commerce and ADR Task Force.

He has been involved with Online Dispute Resolution (ODR) since 1999 and is the System Designer helping create an ODR platform for the New York State Unified Court System. David is the John H. Faricy Jr. Chair for Empirical Studies and a Fellow for the National Center for Technology and Dispute Resolution and the American Bar Foundation. He has 60 legal publications and has made more than 170 professional presentations in ten different countries.

Professor Larson worked at the Equal Employment Opportunity Commission Office of General Counsel, Appellate Division in Washington, D.C. and, on behalf of that Office, participated in drafting the Regulations and Interpretive Guidance for the Americans with Disabilities Act. He was founder and Editor-in-Chief of the “Journal of Alternative Dispute Resolution in Employment” (CCH Inc.), an arbitrator for the Omaha Tribe and other disputes, and a Hearing Examiner for the Nebraska Equal Opportunity Commission. He worked with the International Legal Resource Center (a partnership between the ABA Section of International Law and the United Nations Development Programme) and the ABA Central and East European Law Initiative (CEELI). He teaches Arbitration Law, Arbitration Skills, Disability Law, Employment Law, Employment Discrimination Law,  Labor Law, Torts and Online Dispute Resolution (ODR) for the 21st Century. David has been a tenured professor at four different universities and colleges and practised with a litigation law firm.

In this episode, we scrutinised the following questions:

1) What is the story so far with the small claims cases via the ODR  New York platform?

2) In your article, ‘Designing a State Court Small Claims ODR System: Hitting a moving target in New York during a Pandemic’- you mentioned ‘parties auto-populated stipulation of settlement.’ The term is relatively new. What does it mean?

3) What prompted the Credit Debt Collection ODR Platform, and how does it work?

4) What are the obstacles encountered during the formation of this Project?

5)  What is your advice for people who want to pursue a career in ADR?

 

INTRODUCTION

In 2016 David Larson began to help the New York State Unified Court System design a pilot online dispute resolution (“ODR”). Eventually, the New York State Civil Court Small Claims ODR platform went live on January 29, 2021. However, establishing the ODR scheme took more than four years.

According to David, the journey took so long because their’ target kept moving.’ In his own words, “after completing a detailed credit card debt collection ODR platform, they had to change direction before implementation and focus instead on small claims cases. Then like the rest of the world, we suddenly had to deal with the COVID-19 pandemic.”

This essay intends to outline how far the New York ODR scheme has gone since its establishment and get a first-hand view/experience from an established ADR Practitioner /Academia who helped establish the scheme-David Larson. It aims to enlighten people on the existence of the ODR platform in New York and encourage more people to use it, especially during this Covid-19 pandemic era bearing in mind its many benefits like decongesting the dockets of the courts and cost-effectiveness, amongst others.

 

What is the story so far with the small claims cases via the ODR  New York platform?

David pointed out that he started working with the ODR New York platform in October 2016. They were primarily focused on credit card and debit collection because in New York, either the parties are evading service or are not showing up in Court like which means that most people were not participating in the Justice system. Thus this prompted the creation of small claims online to increase debt collection in the Justice System, including creating/enhancing access to justice. It is imperative to point out that the ODR system has a jurisdictional limit of $10,000 or less like the in-person New York City Small Claims Court. Because it is a pilot project, the ODR System initially will accept no more than one hundred cases per month. Although the System presently is capped at 100 cases, the Court is exploring an expansion into the 7th Judicial District in the Rochester area. We only get 100 cases per month- we spent much time thinking about the concerns of the unrepresented people online and Internet, so we have a series of screening questions to help with that.


In your article, ‘Designing a State Court Small Claims ODR System: Hitting a moving target in New York during a Pandemic’- you mentioned ‘parties auto-populated stipulation of settlement.’ The term is relatively new. What does it mean?
The ODR System has an initial detailed intake and registration stage that includes screening questions that automatically disqualify cases based on the parties’ assessment of their ability to proceed online. This initial stage comprises two short mandatory animated educational videos explaining small claims cases and ODR. If a case is determined eligible for ODR, the parties participate in no more than three rounds of blind bidding. Claimants have up to three opportunities to enter the dollar amount they would like to be paid and a lower amount they would be willing to accept. Defendants also have up to three options to submit the amount they would like to pay and the higher amount they would be willing to pay. If a Claimant’s and a Defendant’s bids overlap, the ODR system divides the overlap and reveals the settlement amount. Once the settlement amount is determined, the parties engage in a structured negotiation process to establish payment terms. The defendant can propose the payment method (check, credit card, or payment app), the number of payments, the first payment date, and the frequency of those payments. The defendant can also propose the consequences if the defendant fails to make the scheduled payments. The Claimant will enter an Affidavit Upon Default with the Civil Court for the default option the defendant selects. Those options are judgment in the total amount initially sued for without further notice to the defendant, less any payments made, together with interest and disbursements; decision in the settlement amount without details, less any payments made, together with interest and disbursements; or place the case on the calendar for trial. If the Claimant agrees to the defendant’s proposed terms, the ODR System auto-populates a settlement agreement that the parties can review and sign. If the Claimant does not agree to one or more proposed terms, the Claimant can make a counterproposal. If the Claimant wants to communicate directly with the defendant, the parties can use a Conversation tab to exchange text-based proposals. If the parties still cannot agree on the terms, then either party can request a mediator. If a party believes mediation would not be productive, that party can request a return to the court system to wait for a hearing date. If the parties agree to all the terms, but a party subsequently reconsiders and refuses to sign the auto-populated Stipulation of Settlement, then either party can request mediation. Whenever mediation is asked for, both parties are required to consent expressly. Hyperlinks are offered to resources that provide information regarding legal services’ availability and explain what happens during mediation.
What prompted the Credit Debt Collection ODR Platform, and how does it work?

It is fair to say that Credit card debt collection practices have a troubling history. In most cases, consumers targeted by those practices either have default judgments entered against them or sign settlement agreements that may be very difficult to satisfy. Although legal service providers offer valuable assistance, they do not have the resources or personnel to assist each of the thousands of consumers being sued by credit card debt collectors.

The New York pilot project, rather than experimenting with ODR to determine whether it could improve access to justice for unrepresented litigants in relatively straightforward cases, the New York court system decided that its ODR system should focus exclusively on credit card debt collection cases. I learned at my first meeting in October 2016 that credit card debt collection was going to be the case type for the ODR system. I expressed concern that the subject matter was too regulated, complicated, and inappropriate for a pilot ODR project. The New York staff explained that consumer debt was chosen because of the significant numbers of unrepresented litigants in these case types who do not have access to legal representation. The New York court system was not mistaken in recognising that the credit card debt collection process in New York is deeply flawed. When debt holders sue consumers, counsel represents only four per cent of consumer defendants. Consumer defendants frequently do not file answers in debt collection lawsuits for various reasons. Although New York recognises that there is a problem with some process servers who never actually serve defendants (“sewer service”) and does have a two-step process wherein the Court mails out a second notice to the defendant, individuals still may not receive that second notice or may not have the time or resources to leave their employment or home and travel for a court hearing. Debt collectors regularly obtain default judgments, allowing debt holders to attach wages, seize property, and seriously damage consumers’ credit histories.

Essentially, we set up an expert system stage where consumers can work through or try to educate them a little bit – we have videos talking about what small claims does. It is pertinent to point out that the ODR pilot project would determine whether default rates could be reduced and consumers’ access to justice could be increased via an online dispute resolution system. Clearly, this is an admirable goal, but it created substantial regulatory compliance challenges and unanticipated resistance. Because credit card debt collection is so heavily regulated, I suggested that New York focus on small claims cases at that first meeting in October 2016. But the court system wanted to address the real consumer debtor access to justice problem.

What are the obstacles encountered during the formation of this Project?

One obvious obstacle was funding and educating everyone involved, such as people who do not like technology.

What is your advice for people who want to pursue a career in ADR?

In the United States, if you are coming out of school from the academic programme and would like to pursue a career in ADR. It is not easy because people select their neutral. Generally, they will be uncomfortable selecting candidates who have no experience. However, another way you can get a chance to pursue a career in ADR is that most cities in the United States tend to have more than one mediation centre. They are more than happy to have you because they need people, which is an excellent way of gaining experience.

 

CONCLUSION

This essay has discussed the story so far with the small claims via the ODR  New York platform. It has provided a comprehensive definition of parties auto-populated stipulation of settlement. Additionally, it reviewed in detail what prompted the Credit Debt Collection ODR Platform and its function while at the same time examining the obstacles encountered during the formation of this Project. Thus, the blogger hopes potential users and would-be users will take on board the many benefits mentioned herein and opt for ADR, particularly ODR, in the case of any arising dispute or conflicts in future.

Click here to listen to the full version of Episode 20 of EVA.

REFERENCES

David Allen Larson, Designing a State Court Small Claims ODR System: Hitting a Moving Target in New York During a Pandemic. (2021) 22 Cardozo J. Conflict Resol. 569

David Allen Larson, Designing and Implementing a State Court ODR System: From Disappointment to Celebration. 2019 J. Disp. Resol. (2019)

Chinwe Egbunike-Umegbolu,  Episode 19: Professor David Allen Larson on Designing a State Court Small Claims ODR System in New York. Anchor. fm (2021)

 

 

Ongoing Research-Peace Journalism a way of diffusing conflict?

 

Introduction

 

Snapshot of peace journalism through Jake Lynch and Johan Galtung’s lens view:

The similarities between Galtung’s conception of peace and Lynch’s conception of peace journalism are that the latter uses Peace journalism to reveal the structural and cultural causes of violence, which are the typologies developed by Galtung that describes violence and peace as it affects conflicting parties. Its underlying objective is to highlight conflicts comprising two or more parties trying to attain as many goals as possible rather than merely dichotomy. Thus Lynch’s conception of peace journalism is built and or chooses to promote peace through reporting peace journalism.

Lynch pointed out that “on the one hand…in the end, only time will tell’. To have ‘balance’, to ‘hear both sides, is a reliable way to insulate oneself against complaints of one-sidedness, or bias.”

 The above quotation embodies the writers view about taking no sides until both parties in a conflict or dispute have aired their views – thus, it has allowed the writer to distinguish between stated positions or goals and realistic goals. It has augmented or informed views on violent and nonviolent behaviours and the fundamental mechanisms in conflict resolution, which has improved the writers’ skills in settling conflicts.

The ‘Why’ in Journalism:

Additionally, the ‘why’ in journalism is extremely important but often neglected by journalists. Peace journalism pays excellent attention to ‘why’ when reporting. The ‘why’ shows the reality, which is often not reported and shapes our responses to these problems, but our response can either be peace or violence. The writer argues that Peace journalism cannot guarantee peace but, to an extent, can promote peace and, in the same vein, diffuse conflict.

According to Johan Galtung,

‘Wherever there is violence, it is a sign from an unresolved conflict, and one does not like the violence, remove the causes, please. Solve the conflict, reconcile the traumas, and there you have peace journalism in a nutshell.’

Flowing from the above, the writer argues that Peace Journalism understands the context of a conflict, multi-faceted, and attempts to summarise the situation without dichotomies and zero-sum games. The act of reporting is not seen as strictly objective because it does not assume a vantage point from where all facts are visible. Instead, it attempts to strengthen voices relevant to building a complete story, distinguishing it from relativism.

 Conclusion:

The above sentiment embodies the current cultural violence and actions in different countries like Syria, Yemen, Iraq, Iran, Venezuela, Turkey, and the Northern part of Nigeria. The writer believes that war journalism is much more prevalent, at least in international mainstream media about Venezuela and in Nigeria.

 

Research Questions:

a) Do you see a prevalence of war or peace journalism in Venezuela’s and Nigeria’s media sources?

b) How does it impact your understandings of conflict and peace?

 

Findings:

Category A: P.C from Venezuela

Do you see a prevalence of war or peace journalism in Venezuela’s media sources?

The Venezuelan crisis has been intensifying since the beginning of Hugo Chávez’s rise to power in 1998.

From that moment, journalism in Venezuela began to escalate from being “normal journalism” (mainly tabloid-type mixed journalism) to war journalism (very conflictive and lost).

There have been times when the public does not trust any medium, such as when Hugo Chavez was taken to Cuba ill and finally died (date still unknown between 2012 – 2013) or even earlier, during the first severe escalation (when Chavez was imprisoned by the coup d’état in 2002).

During those moments, the information was very confusing. On both occasions, we hoped that with the departure of Hugo Chávez, peace would finally be achieved among the citizens.

However, it turned out to be the exact opposite. It was the beginning of new nightmares, the last being the times of Nicolas Maduro and hyperinflation.

I must add that peace journalism was used in Venezuela through the Cartel Center (CC) (Cartel Center, 2005) and the OAS, but due to rigged elections, they lost credibility.

A new actor following the CC approach appeared in 2019 (I. Crisis Group, 2019), the government of Norway. But there were no longer media outlets capable of focusing on reporting their objectives.

The RRSS have played a role since 2010, but access to smartphones has only been possible for the elites or the people of the commune (workers loyal to Maduro who received phones, weapons and food).

Chávez and Maduro built legions in RRSS spaces, turning them into a cyber-battlefield and a source of disinformation since the beginning of 2010.

Media and RRSS have always been ruled by one of the two sides, but never by independent communities. Personally, I found out that smartphones existed in 2018, when a nephew sent me a used one from abroad because, with my teacher’s salary, I couldn’t afford one.

 

How does it impact your understanding of conflict and peace?

As a Venezuelan who feels confused by the press, I don’t trust media, and I don’t trust war journalism either. Every day I read several sources, and I build my own conclusions. I do believe that the Chavista regime is predictable, and I also believe that while media are going to be aligned by political actors, there is no way to depolarize this crisis.

References:

Diane Moore, Neoliberalism, Peace Journalism, and Syria Case Study 1(Harvard Divinity School 2015)

Lynch, Jake, What is Peace Journalism (Transcend Media Service) <accessed 15th September 2020>

Silvia De Michelis, Peace Journalism in Theory and Practice 2018 <accessed 16th September 2020>

Please leave your opinions on the above-mentioned questions.

 

Episode 18- Critical Evaluation of the One-Stop Dispute Resolution Services in Asia with Professor Mark Feldman

Professor Mark Feldman

Abstract
I was super excited to welcome Professor Mark Feldman, one of my mentors and an accomplished leader in the area of Commercial Investment Arbitration. He holds a B.A. from the University of Wisconsin, where he was elected to Phi Beta Kappa, a J.D. from Columbia Law School, a James Kent Scholar, Harlan Fiske Stone scholar, and recipient of the Parker School Certificate in International and Comparative Law. He has served both in Private and Public sectors ranging from the USA, China, Singapore and many Asian nations. For instance, he had served on the faculty of the Executive Training on Investment Arbitration for Government Officials, held annually at Columbia Law School and organized by the Columbia Center on Sustainable Investment. His articles have been cited in over  200 publications, including reports by the OECD, UNCTAD, RIETI, the World Economic Forum, the European Parliament, the International Bar Association, and the U.S.-China Economic and Security Review Commission.
 Professor Feldman has taught more than 1000 law students at Peking University in Shenzhen and more than 500 government officials, legal practitioners and law students in Singapore (NUS) and Macau (PRAIA Academy). His government experience also includes service as a law clerk to Judge Eric L. Clay on the U.S. Court of Appeals for the Sixth Circuit and as a Peace Corps volunteer in Lesotho during South Africa’s transition to democracy. He is currently a Professor of Law at the Peking University School of Transnational Law, among many other accomplishments too numerous to mention.
In this episode, we featured a critical analysis of the following questions:
1)  How do you see the impact of this novel concept (One-stop Commercial Dispute Resolution Services) working within China and how the rest of the world would react to it.
2)  You related to Singapore as a leader, at least in Asia, in the area of commercial investment arbitration using what you described as legal hubs. How is their approach different from that adopted by China? Furthermore, what are the reasons for their success?
3)  How would you address the fears of the Purists who would see these integrated hubs as nothing but interference in an area considered purely an ADR arena -rather than mixing it with litigation or Professor Frank Sanders Multi-Door Courthouse (MDC).
4) Are there any differences between the MDC and the One-Stop Dispute Resolution Services?
5) What is your advice for people who want to pursue a career in ADR or Arbitration?
INTRODUCTION

The China Supreme People’s Court (SPC) birthed the China International Commercial Court (CICC) in 2018. Its purpose is “to build a diversified dispute resolution mechanism that efficiently links mediation, arbitration, and litigation;” hence this has paved the way for the ‘one-stop international commercial dispute resolution mechanism in China.’

The Impact of this novel concept (One-stop Commercial Dispute Resolution Services) working within China 

There are two institutions to focus on in respect to One-Stop Dispute Resolution. The first of the two that has received more attention is the China International Commercial Court (CICC), which now has tribunals in Shenzhen and Xi’an. The second is the International Commercial Dispute Prevention and Settlement Organisation (ICDPSO), and it has received far less attention; it is based in Beijing. Each of these institutions is high binding and respective one-stop dispute resolution, but each institution’s design is very different. Thus they are different ways these different institutions are offering very different options for their users.

You related to Singapore as a leader, at least in Asia, in the area of commercial investment arbitration using what you described as legal hubs. How is their approach different from that adopted by China? Furthermore, what are the reasons for their success?

The interesting difference is that in Mainland China, the CICC- the one-stop platform is embedded within that institution. Similarly, the Beijing organization that is the ICDPSO is also embedded in that institution. Professor Feldman pointed out that the message to the global community is that Singapore as a destination is a global leader in dispute resolution concerning one-stop dispute resolution. However, the Singapore international commercial court is now within that institution- it is simply working alongside arbitration institutions and mediation institutions.

 

How would you address the fears of the Purists who would see these integrated hubs as nothing but interference in an area considered purely an ADR arena -rather than mixing it with litigation or Professor Frank Sanders Multi-Door Courthouse (MDC)?

In respect to mediation, in particular, it is advancing on several fronts, and the highest proof to that development is the Singapore convention on mediation. Many comparisons have been made between the Singapore convention and the New York Convention. The Singapore convention will allow greater enforceability of mediated settlement agreement than the New York convention. What is equally important about the Singapore Convention is not only how it is advancing the enforceability of mediated settlement agreements on a higher level but also in terms of status-on mediation. Then it is essential to point out that mediation is developing on few other fronts as well. One is Belt and Road disputes settlement; it is evident that mediation is a core component of Belt and Road disputes. The International Chamber of Commerce (ICC), for example, recommended mediation- always to be considered for any Belt and Road disputes with investment arbitration; likewise, we see very significant development with mediation in connection with investment arbitration. Thus the International centre for settlement investment dispute in 2018 developed a set of mediation rules. These mediation rules are in addition to the existing conciliation rules; unlike their conciliation rules, the mediation rules do not have any jurisdictional requirement regarding the nexus to ensure membership. Instead, the mediation rules are freely available. 

 

Are there any differences between the MDC and the One-Stop Dispute Resolution Services (OSDRS)?

 In legal terms, whether it is referred to as the Multi-Door Court (MDC) or whether it is referred to as the One-Stop Dispute Resolution Services (OSDRS), it does not imply any particular difference. I think the differences are in terms of the implementation. For instance, Singapore is implementing the model differently in terms of not including everything within one institution; instead, it is a case of different institutions working together.

 

What is your advice for people/persons who want to pursue a career in ADR or Arbitration?

There are so many different ways to begin to develop a profile within arbitration. Firstly, for people starting, if there are opportunities with arbitrational institutions or with mediation institutions, take it. It is a great way to get started. Secondly, law firms provide excellent training if there is an opportunity to work in a law firm that might be an excellent way to start out and then transition to a private firm, perhaps after a few years. Thirdly, publication is another great way to start developing a profile. Especially for more junior lawyers co-authoring with the more senior scholar or lawyer would be a nice way to develop a profile through publications.

Finally, make use of social media. There are so many developments and many publicly available materials. It is a good use of one’s time to pay attention to the discussions on social media. Now, virtually with webinars, there are some interesting webinars available generally to the public. There are incredible resources that are now available virtually without registration fees. It is an excellent way for lawyers to continue educating themselves and demonstrate their interest in the area. It is essential to point out that demonstration of interest is crucial because employers see that he/she is active in the community. For example, they have published a few articles, they have interned in a few institutions. These are all great ways for junior lawyers to demonstrate a genuine interest in these areas.

 

CONCLUSION

This work, to an extent, has critically evaluated the impact of the one-stop dispute resolution services in Asia. In furtherance, highlighted the different approaches adopted by China and Singapore while examining the differences and similarities between the MDC and the One-Stop Dispute Resolution. It concludes with concrete advice for people/persons who want to pursue a career in ADR or Arbitration.

To listen to the full version of Episode 18 of EVA, click here.
Reference:
Feldman, Mark, One-Stop Commercial Dispute Resolution Services: Implications for International Investment Law (October 18, 2019). < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3471695> accessed on 24th May 2021.

Is Arbitration within the remit of ADR?

A question posed by the blogger (Chinwe Stella Egbunike-Umegbolu) on member connect. resolution. institute. See links below: 

  • https://memberconnect.resolution.institute/browse/allrecentposts
  • https://memberconnect.resolution.institute/communities/community-home/digestviewer/viewthread?GroupId=25&MessageKey=6a63b726-7b39-418f-9be4-af2c0ab724f2&CommunityKey=ca3c9f1c-d081-4b93-bd77-b2041de7b451&tab=digestviewer&ReturnUrl=%2fbrowse%2fallrecentposts
Professor Emilia Nneka Onyema pointed out on Expert Views on ADR (EVA)
‘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.’
What is your take on the above-stated statement?  Do you Agree or Disagree?
Excerpt from Episode15: Careers in ADR with Professor Emilia Onyema
https://memberconnect.resolution.institute/blogs/chinwe-umegbolu1/2021/03/19/careers-in-adr
https://anchor.fm/chinwe1/episodes/Episode-15–Careers-in-ADR-with-Professor-Emilia-Onyema-escm0e

 

  • Members responses:
1.  RE: Is Arbitration within the remit of ADR?
Arbitration is the pinnacle of ‘determinative’ ADR.  It is the most formal of the processes which parties submit to when they are unable to resolve matters themselves.
Mediation is the first step where an independent third person attempts to encourage parties to dissect the dispute and see the strengths and weaknesses of their position and the need to compromise.
Conciliation attempts the same but offers an opinion on the solution if the parties are intransigent.  This is akin to a Dispute Board ‘recommendation’ although the latter may be more formal.
The next step in ‘resolution’ is a binding third party determination – this may be ‘interim binding’ as is the case with Adjudication, or Dispute Boards or an Expert Determination with monetary limits.
Failing all of these, there is ‘final and binding arbitration.
Remember, the processes we are discussing are intended to achieve ‘resolution’ outside the Courts.-

2.  RE: Is Arbitration within the remit of ADR?

D.B
Posted 15 days ago

One thing that I don’t think that anyone has mentioned yet, is that the arbitration process in international arbitration is completely confidential. That even extends to the award not being made public unless it needs to be enforced or is subject to appeal. I think this clearly makes it an alternative process to court trials and decisions and is perhaps one of the main reasons why it has been embraced by parties to commercial disputes.

3.  RE: Is Arbitration within the remit of ADR?

Posted 15 days ago

I think the point that emerges from this discussion is that the term “arbitration” itself is not homogenous.  It comes in many shapes and forms and some of them may come within the purview of ADR and others may not.  The point that David Baldry has made is a good one, that is, that arbitration, especially international arbitration, is a confidential process and even the award is confidential in some circumstances.  In some jurisdictions, such as applies in NSW under section 38 of the Civil Procedure Act, 2005 (NSW), there is compulsory court-annexed arbitration provision which is anything but confidential or voluntary and pursuant to the Act and the Rules of Court, the Court may refer any matter out to arbitration for hearing by a court-appointed arbitrator.  The award, which becomes a judgment of the court after 28 days, is as public as any other judgment and there is very little to distinguish that arbitration process from a hearing in open court.  Nevertheless, the court system refers to it as “an ADR process” which I think is inaccurate in the circumstances.  In Wes Trac Pty Ltd v East Coast OTR Tyres Pty Ltd [2008] NSWSC 894 at [38] Barret J pondered why such arbitrations are diminishing in popularity and concluded that one reason is that the arbitral award “…can be displaced virtually at the whim of a party and replaced by a judicial process and a judicial determination.”  Whilst His Honour was there dealing with Supreme Court arbitrations, my own anecdotal experience suggests that, in the Local Court at least where magistrates deal with a busy criminal list every day, the court-annexed arbitration system for civil cases is as popular as ever.  I have delivered more than a hundred arbitral awards, only one of which was disturbed on a rehearing.  This process is quite different from arbitrations conducted under the Commercial Arbitration acts and from International Arbitrations and it may be that we need to acknowledge that some arbitrations may come under the ADR banner and some may not.

4.  RE: Is Arbitration within the remit of ADR?

  1. (of one or more things) available as another possibility or choice.

2.  relating to activities that depart from or challenge traditional norms.

Arbitration certainly meets the first part of the definition of ‘alternative’ in that it is another way of having your matter determined by someone authorised to impose a solution. Judicial determination and arbitration are part of the same genre albeit with differing procedures.

Arbitration does not meet the second part of the definition.

Arbitration has been an integral part of the traditional norms of our Western judicial system since the Common-Law Procedure Act (UK) 1854. It has been prominent in Australian jurisdictions since the late 19th century and throughout the 20th century. It, like judicial determination, has become the traditional norm.

It is the introduction of mediation in the latter part of the 20th century that has seen a fundamental departure from this traditional norm. The term ADR arose directly out of this development.

The process of imposing a result on the parties being expressly excluded in the mediation approach has been the fundamental departure.

Therefore, arbitration can call itself ADR if it likes but mediation (using the broad Singapore Convention definition) is the more accurate representation of what has become known as ADR.

5.  RE: Is Arbitration within the remit of ADR?
M. K
The different views all have merit and turn on the defn of adr used-in my world i try to talk about the spectrum of DR options from unassisted direct discussions thru to litigation. So does the answer have any real significance?-Arb.is closest to litigation on the spectrum it is
different as it is private and parties can Decide or have a hand in deciding who will be deciding.More like expert determination——————————

6.  RE: Is Arbitration within the remit of ADR?

Thanks, M and G for your responses to this question.  I enjoyed reading your thoughts.

7.  RE: Is Arbitration within the remit of ADR?

Posted 16 days ago

That is an interesting question that has certainly occupied the minds of dispute resolution theorists over time.  It would appear from the evidence that the official court view is that arbitration is encompassed as a form of ADR.  Paragraph 8 of the Local Court of NSW Practice Note Civ. 1 speaks of referral to compulsory arbitration under the heading of “Alternative Dispute Resolution.”  Other NSW Court practice notes speak of “referral to arbitration or some other form of ADR.”  Outside the court system arbitrations, although comprising a determinative rules-based process, nevertheless involve an element of disputant choice.  For example, in many cases, the parties either agree to arbitrate their dispute or they have agreed pursuant to some earlier contract that they will arbitrate any dispute.  They agree on the selection and appointment of an arbitrator and they usually agree on the time and place of the arbitration.  Few of these options are available in a strictly litigated environment.  Notwithstanding all of this, my own view is that arbitration is not an alternative dispute resolution.  It is litigating in another room.  This is because, ultimately, it is a rules-based determination of a dispute by a third party who considers the dispute on the basis of evidence and makes a binding determination.   The parties themselves play no part in the decision-making process except by way of evidence in which they attempt to persuade the decision-maker of their case.  The decision-maker merely makes a determination on the evidence and provides a reason for the determination.  In my view that is not ADR.  My own arbitration practice comprises receiving cases from the court in respect of which I am expected to make procedural directions, hear the case, provide reasons for the award and return the file to the court.  There is no voluntary component of the process at all (except perhaps to have the matter reheard before the court if they are dissatisfied with my decision).

8.  RE: Is Arbitration within the remit of ADR?

Posted 16 days ago

9.  RE: Is Arbitration within the remit of ADR?

Posted 16 days ago

Depends on what you mean by “Alternative” in ADR.

Traditionally, “alternative” has meant an alternative to the courts. In that sense, arbitration is ADR because it’s not a court resolving the dispute.

However, the author seems to equate “alternative” with “facilitative” and that “determinative” forms of ADR (arbitration, adjudication, expert determination etc) are not “alternative” because a third party imposes a binding (final or interim) decision. This is a view, but it’s not my view.

Or, perhaps because the conduct of many arbitrations is similar to the conduct of a court case, the author sees them as the “same” and therefore not “alternative” meaning “different”. This is a definition that alternative can bear but it’s not how it’s used in the phrase “Alternative Dispute Resolution”.

10.  RE: Is Arbitration within the remit of ADR?

D, you took the words right off my keyboard. I agree 100% with your response. T.

11. RE: Is Arbitration within the remit of ADR?

I feel Arbitration falls within ADR. I view thee, Arbitrator, as one of the disputing parties, albeit having no interest in the decision other than its fairness. The arbitrator is open to being pursued by the parties, often independently of ‘black letter law’ technicalities or constraints. The parties, therefore, are the facilitators and the Arbitrator one who makes a decision they (the mediator) can live with, without that decision’s exceeding the mediator’s authority. A judge on the other hand although having a somewhat similar role has to consider legislation, precedents and the possibility of appeals.

12.  RE: Is Arbitration within the remit of ADR?

Hi P,
I agree with your basic premise, however, from my arbitration training, just like a judge, arbitrators “must consider legislation, precedents and possibility of appeals.”
The difference, IMO, is that arbitrators may consider and agree with any resolution that the parties arrive at and write the (confidential) agreement/award accordingly. This might occur in a mediation session within the arbitration process.
Arbitration is ADR because it has this flexibility (to use the parties’ resolution) that a judge may not have.——————————

13.  RE: Is Arbitration within the remit of ADR?
D.D
Posted 16 days ago

As Dale said, it all depends on the definition of ADR. Traditionally, this was Alternative (to litigation in court) Dispute Resolution. Then, some suggested that it should be ‘Amicable Dispute Resolution’, while others suggested ‘Appropriate Dispute Resolution. Each term implied that everything and anything is better than litigating in the courts where the parties have no control over the process and no say in the outcome. This misconception only adds to an already divided perception of what has become a system of various processes all serving the same scope of managing disputes. Today the range of various facilitative and determinative processes recognised and supported by legislation and the courts are equally part of this system that in most cases allows parties to manage their dispute in a way that best serves that dispute. Courts are an integral part of this system and their processes now incorporate many steps that not too long ago were only available in the ‘Alternative’ processes. It may be time to move on with the terminology to better reflect the changing reality of dispute management overall.

 

14.  RE: Is Arbitration within the remit of ADR?

“time to move on with the terminology”? I disagree. I wouldn’t want to start behaving like a government department, wasting resources (member time, RI funds) on changing names. I think that’s missing the point. A good definition is always helpful.

15.  RE: Is Arbitration within the remit of ADR?

Posted 16 days ago

Tess, I was not suggesting for RI to invest resources in changing names for the sake of changing names. It may happen organically in practice if updated definitions no longer match the terminology used. All I implied was to allow for the beautiful flexibility that is characteristic of the field to change terms too to best reflect reality. But you are right; a good definition is important and may solve inconsistencies just as well.

16.  RE: Is Arbitration within the remit of ADR?

Posted 16 days ago

ADR and the word ‘alternative’ can mean whatever you want it to mean.

For the legal profession ADR often means an Alarming Drop in Revenue and for the judiciary, an Alarming Drop in Relevance.

ADR /Mediation has certainly shaken up the Centuries-old litigious dispute resolution model. It is now a mere shadow of its former self in terms of participation.

We now have judges in the Federal Circuit Court and in state Supreme Court’s (SA) sitting as mediators in their own courts although referring un-resolved matters back to other members of the bench to make a determination. Are the courts now turning ADR too ??

It’s interesting that arbitrators want to market themselves or be seen to align with the broader ADR community rather than being seen as a legitimate alternative to litigation.

It seems everyone is now ADR.

The Singapore Convention created a line in the sand, in my view. On one side is mediation and on the other side arbitration/judicial determination. Both sides should be comfortable in their own skin.

 

17.  RE: Is Arbitration within the remit of ADR?

Hi G, that’s an interesting comment:
“We now have judges in the Federal Circuit Court and in state Supreme Court’s (SA) sitting as mediators in their own courts although referring un-resolved matters back to other members of the bench to make a determination.”Can you give a deidentified example?——————————

18.  RE: Is Arbitration within the remit of ADR?

Two sitting South Australian Supreme Court Judges/Masters conduct in-house mediation particularly in relation to contested estates matters and other noncriminal matters.

In the Canadian province of Québec, judges have been performing judicial mediation for decades. Research has disclosed that litigants have been delaying settlement until they are able to access a free judicial mediator. It has killed the private mediation profession and has not resulted in lowering the cost of justice as compared to jurisdictions where private mediation has flourished.

Parties have somehow got it into their head that a judge mediator must be better than a non-judge mediator. Maybe just because it’s free!

19.  RE: Is Arbitration within the remit of ADR?

Silver Member
Posted 14 days ago
Thank you all for your contributions. Though they are divergent views, they all raised valid points.
Hence there is a need for more research on the above subject matter… possibly get every one of you on the show to discuss further. :)Many thanks.——————————

20.  RE: Is Arbitration within the remit of ADR?

Posted 13 days ago

I have had some issues logging on and been busy with both facilitative and determinative DR. D has said quite well what I would have. I also agree with B and D.

Whether alternative, amicable or appropriate, it is an alternative to litigation. Although litigation may be appropriate in some cases.

I used the acronym ‘DR’ instead of ‘ADR’ above, but it was tongue-in-cheek.

Many firms now use DR instead of litigation for their dispute resolution services. Some who believe that ADR should be only amicable or facilitative would say ADR and Arbitration to encompass both, as has done the ICC. This is really limited to mediation and arbitration and possibly dispute boards and does not cover the whole gamut means of resolving disputes that are alternatives to litigation. In teaching or advising clients, I too tend to explain the spectrum. This is particularly important at the contract drafting stage when deciding which form or forms to include.

21RE: Is Arbitration within the remit of ADR?

Posted 12 days ago
True a third party makes a decision in ‘Arbitration’ but it is not always if at all a judicial style decision. In fact, the arbitrator tries to find a middle ground or ‘a decision both parties can live with’. we all know that the court may concede some points to one party but it is seldom a ‘drawn game’. I make the point again it is based on highlighting and explaining interests to the parties. It has more in common with evaluative mediation than litigation and arguably expert determination.
Finally, the whole of ADR can tend to be a practice in search of a theory, whereas the aim is to find alternatives to litigation.——————————

22.  RE: Is Arbitration within the remit of ADR?

Posted 12 days ago

Hi. I have always thought of the word “alternative” in Alternative Dispute Resolution as meaning an alternative to litigation before a court, in Australia a Chapter lll court in the Australian Constitution. So I have thought of the Fair Work Commission (and its predecessor institutions) as an ADR institution. All arbitration is not the same. There is mandatory arbitration, private arbitration, Med-Arb, non-binding recommendations etc. Aren’t they all at the upper end of a continuum from non- determinative to determinative processes outside the court system, with facilitative mediation at the lower end of the continuum?

23. Is Arbitration within the remit of ADR?
Jul 17, 2021 9:51 PM
G.R:
I suggest that determinative processes are more to do with resolution whereas non-determinative processes are about evolution. The latter is a genuine alternative to traditional litigation and its little brother arbitration.
In a complex post-industrial world where the connections between things are more important than the things themselves, it is a process where parties face each other without interruptive layers proffered by lawyers (disintermediation)  that opens the door to new possibilities and serendipity.
Cutting a deal based on the opinion of one lawyer just doesn’t cut it.
24.  Is Arbitration within the remit of ADR?
Original Message:
Sent: 17-07-2021 07:50 PM
From: P. A
Subject: Is Arbitration not within the remit of ADR?I agree with B.  There is a continuum.  Indeed the diversity of issues discussed at our International Conference this week illustrated the point well.  Both facilitative and determinative processes were well represented.  And hybrids are no less properly described as ADR.  In my view, the hallmark of a skilled ADR practitioner is to move up and down the continuum, as needed in the process of resolving a dispute.  Even med-arb-med is ADR – the notion that the middle phase doesn’t seem to be distinctly odd, even if it is unusual.
Jul 18, 2021, 3:10 PM
Donna Ross
International ADR Practitioner
Donna Ross Dispute Resolution
Melbourne VIC
Whether ADR is additional, appropriate or alternative – or amicable, hence the reference by Professor Onyema to the fact that ADR does not include arbitration, which is why some call the whole spectrum Arbitration and ADR – it should include ALL methods outside of litigation, including negotiation.

As to agreements for expert determination, I have always seen included the expert is not an arbitrator. whether the issue to be determined is a contractual or legal one does not change the legal status of the neutral. ED, as it is inaptly abbreviated, is not governed by the CAAs. This goes beyond the mere binding nature of the ultimate determination.

25. Is Arbitration within the remit of ADR?
Original Message:
Sent: 18-07-2021 02:52 PM
From: B.T
Subject: Is Arbitration not within the remit of ADR?
J,
In NSW, the state government condition of contract used for most projects is GC21.  It has expert determination as to its primary dispute resolution mechanism but the determination is generally only final and binding if the amount to be paid from one party to another is less than $500,000.   In most of the EDs that I do, that limit is exceeded and there is the option to litigate.  However, having got a (hopefully well-reasoned) determination, few matters do proceed to litigation.
You raise an interesting observation regarding the role of the determiner as an ‘expert’ and not as an ‘arbitrator’.
In most cases that I have done recently, there is more legal expertise required than technical knowledge.  Often in NSW, the appointed ‘expert’ is a barrister or retired judge.  What then does acting as an ‘expert’ mean compared with acting as an “arbitrator’.  It avoids legal challenges to the determination which often follow from an arbitral award.
Jul 19, 2021 1:01 PM
D.M
The determinative end of ADR can be a knock-down, drag-em-out, winner-takes-all fight to the finish. While it can serve as a circuit breaker and allow a relationship to reset, it can also burn bridges and bring a relationship to an acrimonious end.

And, sometimes, that’s what you want.

Not all business interactions are relationship-based – many are purely transactional, you make money on this deal or not at all. Even where business is relational, some relationships are toxic, and, if you are going to get out, you might as well take as much loot as you can grab.

——————————
D. M

——————————

——————————————-
Original Message:
Sent: 19-07-2021 11:51 AM
From: G.R
Subject: Is Arbitration not within the remit of ADR?

Although this appears to be one of those frustrating definitional debates there is a serious underlying principle we are traversing.

I take the view that litigation, arbitration, expert determination, dispute boards, adjudication, referee, mini-trial and other determinative processes are all the same horse but with different jockeys.  The ultimate decision is contracted out to an intermediary.

The alternative is to make the decision in-house so to speak. Whether this be mediation or in the case of major projects, Project Alliancing.
Project Alliances allow all parties an equal say in any decisions and all issues must be resolved without recourse to litigation.  All decisions are made by an Alliance Board made up of one representative from the owner and each non-owner participant. All decisions must be made unanimously with no abstentions. It is a holistic approach that gives it amazing flexibility in times of disagreement.
Everyone is equally responsible for the problems and the solutions. It has a proven record of better than ‘business as usual’ outcomes.  There is no need for dispute boards, dispute resolution clauses or referees as is self-directing.
Both mediation and Project Alliances fit with the whole movement towards disintermediation particularly with the removal of intermediaries in economics, supply chains, management, field ethnography and, dare I say, the law and politics.
In addition, there is a whole rewilding movement in nature, economics and society in general. Mediation and Project Alliances and other non-deterministic approaches to conflict are a way for the law to re-wild itself in a post-ordered industrial legal and commercial world that has disappeared. The world is now a more fluid and interconnected place. A lot wilder.
Litigation has lost its commercial value not because mediation is an attractive product that everyone is rushing to buy nor is it because the judiciary and the legal profession have suddenly become incompetent. It is because the world has changed.  Generals generally tend to fight the last war.  The legal profession needs to be careful that it is not doing the same.
REFERENCE:
Posted on the Discussion thread Memberconnect. resolution.institute. Australia / Sydney- 2021
https://memberconnect.resolution.institute/communities/community-home/digestviewer/viewthread?MessageKey=8e37382c-390f-40ac-b887-fc5a26bbbe40&CommunityKey=ca3c9f1c-d081-4b93-bd77-b2041de7b451&tab=digestviewer#bm8e37382c-390f-40ac-b887-fc5a26bbbe40

 

Episode 17: Oyo State Multi-Door Courthouse (OYSMDC) as it stands today -Under the Leadership of Mrs Anuolu Gade

Mrs Anuolu Gade- Director of OYSMDC

Mrs Anuolu Gade- Director of OYSMDC.

ABSTRACT
I was delighted to welcome Mrs Anuolu Gade, the Director of Oyo State Multi-Door Courthouse (OYSMDC) and a member of the Governing Board of OYSMDC. Mrs Gade obtained a degree in Law from the University of Ibadan in 1998 and was called to the Nigerian Bar in 2001. She worked at the Public Prosecution Department for ten (10) years as a Prosecutor. She also worked as a Mediator at the Oyo State Citizen Mediation Centre, Ministry of Justice, for about six (6) years and later rose to become a Deputy Director in the Mediation Centre. 
Mrs Gade is a Fellow of the Institute of Chartered Mediators and Conciliators, Nigeria, an Associate Member of the Chartered Institute of Arbitrators, UK, CIArb and a steering committee member Covid-19 Alternative Dispute Resolution (ADR) Initiative (CADRI).

In this episode, we discussed the following questions :
1) When and how did the OYSMDC commence?
2) Has it been able to enhance access to justice for the Citizens of Oyo State?
3) How are matters referred to the MDC?
4) Is there any measurable difference or impact on the cost of settling disputes compared to litigation?
5) What is your advice for potential users or users of the OYSMDC?
When and how did the OYSMDC commence?
The OYSMDC came onboard precisely or was established in March 2018. This was necessary because the court dockets were overloaded with cases, thereby depriving users or litigants of their fundamental right, which is to access the court in a timely fashion. Akin, the MDC is an ADR centre that offers ADR processes such as Mediation, Arbitration, Conciliation and other Hybrid processes.
Following the above point, the essence of MDC’s establishment was to promote easy access for the people and resident of OYSMDC.
 
Has the OYSMDC been able to enhance access to justice for the citizenry? 
We affirmed that OYSMDC had enhanced access to Justice for their citizenry because mediation or ADR mechanism is a less formal, cost-effective, timely process, unlike litigation. Litigation is expensive, it’s cumbersome, and it could also be tedious.
Additionally, when we talk about litigation, especially in Nigeria, it can be very frustrating, and it could also make the litigants impoverished because it is expensive. Not many people can afford litigation, but the ADR mechanism that the OYSMDC offers is user-friendly. It is quick, cheaper, and builds and preserves the relationship. For example, business relationship, the family relationship amongst other relationships can be preserved, unlike litigation like Yoruba’s will say, “you do not go to court and come back as friends; you end up as permanent enemies.” These are some of the benefits of the MDC, and apart from that, it enhances businesses in the state just within a short time when people bring their cases to the MDC within one or two sessions, matters are resolved amicably. It helps to promote quick and easier resolution in commercial activities in the states.
Is there any measurable difference or impact on the cost of settling disputes at the OYSMDC compared to litigation?
When parties come to the OYSMDC, they are asked to pay an administrative fee more like a stipend- very cheap as low as 5,000 Naira (equivalent to £9.40) from both parties. It takes care of logistics, services and processes. However, the Litigation fees, which is about 100,000 naira- 500,000 Naira (though varies depending on the law firm and state), cannot be compared with the early mentioned fees.

Therefore, it is submitted that there is a great impact on the cost of settling disputes at the OYSMDC compared to litigation costs.

What is your advice for potential users of OYSMDC?
We pointed out that potential users should try as much as possible to patronise the MDC. After all, they stand to gain so many benefits when they do so because they have a panel of neutrals. These are experienced ADR professionals from all walks of life in various fields like engineers and bankers who would attend to their cases. Thus when they bring their cases to OYSMDC, they do not lose anything at the end of the day. They get quick and timely solutions as they have various civil cases from tenancy, commercial, land cases, banking, investment and employment cases.

Additionally, one of the many benefits of ADR is that parties have to sign a confidential agreement, including the mediators. Lastly, at the end of each matter where it is resolved, parties enter into a resettlement agreement. After that, such an agreement is taken before an ADR Judge who would not fault such an agreement-rather would endorse it.

Validating the above assertion is section 21 (1) 1, 2 of the OYSMDC 2017, which states ‘that where an ADR Judge endorses such an agreement, it shall be deemed enforceable as a judgement of the High Court (H.C).’

How are matters referred to the MDC?


There are three different ways by which matters are brought into the MDC. The first one is the 
Walk-In route-anybody can come in by themself with or without a lawyer; they do not necessarily need a lawyer.

The second method by which a matter can be brought to the MDC is through Court-Referrals– the court refers cases that are amenable to ADR to the MDC. The third and the last method of bringing cases to the MDC is by Direct Intervention; the directors have been empowered to invite disputing parties to the OYSMDC to settle their disputes amicably.

CONCLUSION
This work has been able to analyse how the OYSMDC commenced. It has provided a detailed account of the cost implication of settling disputes through the MDC, which is way cheaper than the cost of litigation. This work concludes with the significant points raised by the director of OYSMDC on the current satisfaction with the system while revealing why potential users or disputants should embrace the scheme.
To listen to the full version of Episode 17 of EVA, click here.

Episode 16: Practical Negotiation Skills with Mrs Achere Cole

Mrs Achere Cole

Mrs Achere Cole – Deputy Director / Head of Operations of the LMDC

ABSTRACT
In today’s EVA episode, I was pleased to welcome Mrs Achere Cole, the Deputy Director and Head of Operations of the Lagos Multi-Door Courthouse (LMDC) and Secretary to the Governing Council of LMDC. She holds a master’s degree in Public Policy and Management from the School of Oriental and African Studies (SOAS) at the University of London and a second master’s degree in law from the University of Lagos. She was called to the Nigerian Bar in 2003 and is a CEDR UK Accredited mediator. 
Mrs Achere has national and regional experience in building ADR mechanisms and capacity. She consulted for the Judiciary of Kenya and the International Development Law Organisation on a project to support the Sustaining Judiciary Transformation Blueprint of Kenya’s Judiciary. She was an External Evaluator for a Court Annexed Pilot Project that was commissioned by the Kenya office of the IDLO and International Commission of Jurists, the Kenya Human Rights Commission and the High Court of Kenya for the family and commercial divisions of Milamani Law Courts in Nairobi, Kenya.
She was part of the pioneer staff that midwifed the Lagos Multi-Door Courthouse’s establishment under the Negotiation and Conflict Management Group (NCMG). She was a trainer, assessor and mentor for a Justice for All (British Council) project on “increasing access to mediation and legal services for poor people”. She has also provided training for Mediators and Staff of the Kaduna and Abia Multi-Door Courthouses under a World Bank assisted project to expand ADR institutions in Nigeria. Mrs Achere was part of the team that trained 37 staff of the Kano Multi-Door Courthouse to enable the KMDC to start Operations under the Security, Justice and Growth Programme of the British Council.  She was Head of Human Resources and Administration of Capital Partners Limited and was Workforce Assessment Team Lead as part of a team of consultants responsible for the Bank PHB Retail Strategy Implementation Project and is a trained election observer by the Kofi Annan International Peacekeeping and Training Centre, Ghana.
Mrs Achere teaches Mediation and Communication courses at the LMDC and is also a Restorative Justice Trainer. She is a proficient and interventionist Mediator in fields that cut across commercial contracts, family, criminal and employment disputes.
We critically discussed the following questions:  
A.  Why Negotiation? 
B.  What are the benefits of Negotiation?
C.  What are the skills necessary for anyone to engage in Negotiation?
D.  What is your advice for potential users of Negotiation and people who want to pursue a career in Negotiation or as a Negotiator?
INTRODUCTION

Why Negotiation?
Negotiation is the first step in dispute resolution. It can be defined as the interaction between two people whereby they have an opportunity to resolve their dispute, preferably in an interest-based fashion. For instance, organisations can work with one another and resolve their dispute themselves and even individuals, which is the essence of negotiation before moving on to other dispute resolution mechanisms that involve a third (3rd) party. Hence, it has the potential to put the parties interests together and settle between themselves privately before they involve any third party neutral.
What are the Benefits of Negotiation?
It is private and a flexible form of dispute resolution so can be done under any circumstances. What that means is that it can be done anywhere; It can be done using a system that has been designed by the parties. It is not rigid and has a greater possibility for a successful outcome except when the parties adopt a positional-based approach instead of an interest-based approach. This possibility of a successful greater outcome leads to a win-win solution in which both sides are happy to get results that are beneficial to their interest.
Additionally,  it provides parties with the opportunity to design an agreement that will serve their interest. For instance, they can design whatever solutions they want and document them, and that becomes the contract between the parties in which, of course, can be enforced in the court of law, and that design comes from either party. It enhances the relationship between the parties, which is really important in today’s society, and much less expensive in comparison to other mechanisms of dispute resolution.
Disadvantages of Negotiation
When two parties come together to resolve a dispute and one party does not understand interest-based position versus positional based negotiation, they tend to negotiate in a positional fashion which may lead to a breakdown of negotiation (interest-based v positional based negotiation). This means that one party is keen on insisting on a particular outcome and not interested in the other party’s interest or discussing it. This is one of the many disadvantages of Negotiation.
The skills necessary for anyone to engage in Negotiation 
Preparation: The most skill required is preparation; that is the need for a negotiator to prepare for the meeting, study the history of the relationship, what kind of negotiation they are involved in and what kind of dispute.
Problem analysis:  Another important skill required by a negotiator is how to analyse the problem or issues raised in the dispute. Thus, the need to stand out of the dispute and look at it as an observer or with a fresh eye and analyse the problem. To see what really caused the dispute and determine the interest of both sides and what are the possible interest and what are the possible solutions is critical.
Active Listening: This is an equally important skill set to gain as a negotiator. Most times, people listen with the intention of responding to what the other person is saying. It is essential to learn to listen as a negotiator, and that is why it is called active listening, taking out any thoughts about what the parties are going to say or meant to say. Instead of doing that, the negotiator needs to listen to understand and summarize or rephrase what they have just said to ensure that you understood what they have said that will make or show the parties know that they were heard. Finally, the essence of active listening is that the party feels that the negotiator has listened, and that is a skill set which a negotiator needs to learn and develop.

 

Advice for Potential users and people who want to pursue a career as a Negotiator or in Negotiation?

We pointed out that the need for adequate training cannot be overemphasized. To reiterate, the importance of getting appropriate skills – like active listening, questioning skills, decision making and problem analyses are essential tools that are all built into the negotiation training.
In furtherance, potential users or users should not go into a meeting with a positional based approach rather go in with an interest-based fashion or approach to their negotiation.
CONCLUSION:
This work was able to provide a holistic view of Negotiation and its intricacies. We hope potential users would take on board the vital points raised herein and put them to good use by opting for ADR, particularly Negotiation as the case may be.
To listen to the full version of Episode 16 of EVA, click here.

Episode 15: Careers in ADR with Professor Emilia Onyema

Professor Emilia Onyema

ABSTRACT
I was super excited to welcome Professor Emilia Onyema, a Professor in International Commercial Law at SOAS, University of London. She is a Fellow of the Chartered Institute of Arbitrators, qualified to practice law in Nigeria, and as a Solicitor in England & Wales.
Professor Onyema is a member of the Lagos Chamber of Commerce International Arbitration Centre (LACIAC) and the Lagos Court of Arbitration, the Advisory Committee of the Cairo Regional Centre for International Commercial Arbitration (CRCICA). She presides over the Advisory Committee of the Libya Centre for International Commercial Arbitration. She is also a member of various professional associations, including the Nigerian Bar Association and the International Bar Association. She convenes the “SOAS Arbitration in Africa” conference series and publishes the Arbitration in Africa Survey and the African Promise’s co-author; she has published various books and articles on Alternative Dispute Resolution (ADR), particularly on Arbitration. 
Professor Onyema was awarded the Mentor of the Year 2020 by the African Arbitration Association (AfAA); She has mentored so many people over the years and still mentoring, including my humble self, and one of the main reasons I am researching in ADR- Multi-Door Courthouse (MDC) in Nigeria.
In this episode, we discussed the following questions:
a) What is ADR?
b) How did you start or commence your journey as an ADR Practitioner/ Academia?
c) Throughout your journey as an ADR Practitioner/Academia, have you had any cause to doubt the effectiveness of ADR, to be precise, Arbitration?
d) What is the Career Progression in Arbitration?
e) What is your advice to someone that wants to pursue a career in Arbitration?
f) What is your advice for potential users of ADR?
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.
Keywords: Dispute Resolution, Alternative Dispute Resolution, Arbitration, Access to Justice; Careers
  • 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.

 

 

INTRODUCTION

This essay set out to understand an established ADR Practitioner / Academia’s view and experience in the field of ADR – arbitration to be precise.
It aims to enlighten people on the following -that litigation is not the only option, there are other mechanisms that they can opt for, the need to pursue a career in ADR, and the best ways to go about that. Hence, the invitation of an erudite Professor who has forged a career path in the subject matter to tell her story in a bid to inform or encourage other people to tow the same path.

 

What is Alternative Dispute Resolution (ADR)?

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.
How did you start or commence your journey as an ADR Practitioner/ Academia?
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.

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.

 

 

CONCLUSION

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.

 

References:

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.

 

Episode 14: Snapshot of Alternative Dispute Resolution (ADR) in Botswana

Mr Edward W.F. Luke II FCIArb, FSIArb, FBIArb, MCIArb,Dip Int Arb (CIArb)

 

ABSTRACT

I was delighted to welcome Mr Edward Luke II, a Barrister-at-law, England and Wales, a Barrister and Solicitor of Sierra Leone, and an Attorney of law, Botswana. He is the Managing Partner of Luke and Associates and one of Botswana’s leading lawyers with a wealth of local and international experience. He has engaged in several high-profile cases in the High Court and Court of Appeal in Botswana, including Botswana’s most sensational murder trial; appeared in the Court of Appeal with Sir Desmond de Silva Q.C. 
Mr Luke is a fellow of the Chartered Institute of Arbitrators in the United Kingdom, Kenya and Zambia. He is also a fellow of the Singapore and Botswana Institute of Arbitrators. He is an author who has spoken at several international conferences on International Arbitration. 
In this episode, we explored ADR as it stands in Botswana today.
Keywords: Access to Justice, Alternative Dispute Resolution, Arbitration, Multi-Door Courthouse, Kgotla, Botswana; United Kingdom.

 

INTRODUCTION

 

What prompted the birth of Arbitration in Botswana?

The Arbitration Act of Botswana was promulgated in 1959 to assist in the speedy resolution of disputes. It is essential to state that since Botswana became a prosperous country in the sense that when they find diamonds for so many years, they had the fastest economy globally. There was a lot of construction going on, which brought about a lot of disputes at all levels. So Arbitration became a widespread mechanism used to resolve these disputes efficiently.

 Prior to introducing ADR in Botswana, they had Kgotla – a place where people who have disputes assembly or meet with the chief or with the elders to help them resolve their disputes. People go before the Kgotla and air their views, and the chiefs or elders review them, and the decisions are always arrived at by consensus. Thus it is a traditional local means of resolving disputes and still part of the local culture that they have in Botswana.

 

How has the Arbitration journey fared in recent times?

In recent years, Arbitration is growing though they still use the old 1959 Act; however, the courts are very pro-arbitration. So the courts have made decisions that have established Botswana as a major alternative dispute resolution mechanism country. The courts recognise Arbitration, and they have been very consistent in accepting Arbitration as a dispute resolution mechanism.

Hence the courts have given decisions that are very ADR friendly. Once the parties agree to the arbitration clause, then Arbitration is held, and if the arbitrators do not misconduct themselves or misconduct the proceedings or there is no fraud. The court upholds the arbitration award.

 

Is there a Court-annexed ADR or Multi-Door Courthouse in Botswana?

 It is not enforced or provided yet in the act, but then the Chief Justice mentioned that they are trying to introduce Court-annexed Mediation to proceedings.

However, the Civil proceedings rule has what is called the Case Management Conference (CMC), and in those case managements, the courts encourage the parties to settle before a matter goes to trial.

 

What skills are necessary for anyone to engage in ADR?

There is an institution that has a ‘Rolls Royce’ training for arbitrators, and it is the Chartered Institute of Arbitrators in the UK. They have membership courses and also the fellowship, which is a challenging and comprehensive course. So mastering and passing these courses will enhance the skills needed to engage in ADR.

 

What is your advice for potential users of ADR and people who want to pursue a career in ADR?

To reiterate, people who want to get involved in Arbitration should get in training with the Chartered Institute of Arbitrators, and also try to hook up with law firms that deal with Arbitration and attend conferences. This period (Covid 19-Pandemic) is a very good time that many people could attend conferences online. There are many webinars that are going on where some of the leading arbitrators in the world speak. So clearly, the opportunities for young people interested in Arbitration are plentiful. We would encourage both potential users and persons who want to pursue a career in ADR to look up this webinar, join them, and listen. There is no way that they cannot learn one or two things that would aid them in starting up a career in ADR vis-a-vis opt for ADR as an option. 

 

CONCLUSION:

This essay has succeeded in summarising what prompted the birth of ADR in Botswana, how far they have fared in recent times and the necessary skills required for anyone to engage in ADR.

Hence, with the evidence provided in this essay, we believe that potential users and people who want to pursue a career in ADR, to be precise, Arbitration, would make a well-informed decision while searching for the best option in developing themselves in the chosen career path. 

To hear the full version of episode 14 of EVA, click here.

 

REFERENCES:

Botswana Arbitration Law, 1959.

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.

 

Episode 13: Exploration into the Concept of Family Mediation

 

 

ABSTRACT

Questions have been asked on ‘Whether Family Mediation falls into the general mediation or forms a different class of Mediation’? To answer the above-mentioned question, I invited Mr Joseph Omorere, a Masters degree holder in Dispute Resolution from Kingston University London. He is passionate about ADR and a qualified solicitor of England and Wales. Mr Omorere has practised for over nineteen (19) years in Immigration, Crime, Civil Litigation and Employment Law.

Keywords: Alternative Dispute Resolution, Family Mediation, Mediation, United Kingdom.

 

 

INTRODUCTION

What is Family Mediation?

The concept of family mediation is different from that of general mediation. General mediation is where a neutral third party facilitate between individuals or between corporate or non-corporate bodies or between corporate bodies and vice versa to settle their disputes.

Conversely, as the name indicates, family mediation is about helping spouses resolve their differences or help to separate or divorcing couples sort out their disputes by a neutral third party known as a family mediator. The question that comes to mind is – who is a family mediator?
In simple terms, Family Mediators are trained to work with people whose relationships have broken down.

Scope of Matters Covered by Family mediation: It covers disputes over Contact arrangements,  Residence and Parental Responsibility, Child maintenance, Property, Finance – savings, debts and pension.

 

Does Family Mediation fall within the Parameters of General Mediation?

Following the above point, it could be argued that the word mediation brings both family mediation and general mediation into the same forum. Still, care must be taken not to confuse both. The difference is the safeguards that are injected into the family mediation, which separates it from general mediation. For instance, in family mediation, the mediator cannot mediate where spouses or other family members are influenced by fear of violence that occurred during the relationship. Those kinds of safeguards are not there in the general mediation; parties could leave or stop the session at any time they wish to.

To reiterate, it is safe to say that family mediation safeguards are for protecting parties who have encountered domestic violence during their relationship or parties with unequal bargaining powers in terms of resources – one party having access to more money and the other party has little or nothing. So the safeguard protects the less privileged party. It is essential to point out that in family mediation and general mediation, each party will be informed about the availability of independent legal advice during the process.

 

The Issue of Domestic Violence:

One of the main reasons domestic violence, in most jurisdiction, cannot proceed or be mediated is where there is a history of domestic violence. In the United Kingdom, the government takes it very seriously; this is because bringing parties who have been damaged or been through domestic violence to face each other again is adding trauma and fear to that particular person’s life. Though Mediation is aimed at securing a more constructive approach to marital breakdown and divorce. Nevertheless, the UK government has made it a policy that where there is a history of domestic violence, mediation can not proceed.

 

What is the Consequence of this Determination for Potential Users, and Why does this Determination Matter?

The consequence of this determination for potential users and why it matters is that Mediation is available to spouses but not at every cost. Thus, the government policy mentioned above protects domestic violence victims; hence they have to be kept away from experiencing or coming into face-to-face contact with their abusers.

In essence, while Mediation is available to all, the reverse is the case for family mediation, particularly for the aforementioned categories who have been affected or damaged even through domestic violence.

 

Advice to Potential parties and Intending Users of Mediation:

We indicated that Mediation is a very practical, cheaper, and an easy way of resolving spouses’ issues rather than going through the rigorous process associated with litigation. For example, filling form E (UK Law) is quite extensive.

 

CONCLUSION

This essay provides an exciting opportunity to advance the potential users’ knowledge on the differences between Family Mediation and General Mediation while indicating the standard precursor to their similarities: the voluntariness of the process, its party-driven nature and neutrality of the process.

To hear the full version of episode 13 of EVA, click here.

 

REFERENCES:

Edgar v Edgar  [1980] EWCA Civ 2

Mary Hayes, Catherine Williams, Family Law Principles, Policy and Practice (2nd ed, Butterworths 1999) p.554

Family Mediation-Gov.Uk, Family mediation Sorting out family disputes without going through court courthttps://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/489124/family-mediation-leaflet.pdf

Nwokolo, Kingsley, To What Extent Is The Mediation Process Useful to a Victim Of Domestic Violence When The Dispute Is Over Finances/Children Upon Separation Or Divorce? p. 24

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