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Author: Chinwe Egbunike-Umegbolu
ADR and workplace conflicts: a Nigerian Perspective with Professor Paul Idornigie, SAN, C.Arb (UK)
ABSTRACT
I was honoured to interview Professor Paul Idornigie on Expert Views on ADR (EVA) show. He is a Professor of Commercial Law at Veritas University, Abuja, Nigeria; he is also a Chartered Secretary and Chartered Arbitrator (UK), a Notary Public for Nigeria and an Author. Professor Paul is a Senior Advocate of Nigeria (SAN). SAN is a title that may be conferred on legal practitioners in Nigeria of not less than ten (10) years of standing and who have distinguished themselves in the legal profession. It is the equivalent of the rank of Queen’s Counsel in the United Kingdom.
Prof was also a Senior Lecturer at the Nigerian Law School Abuja, was involved in the setting up of the Abuja and Asaba Multidoor Courthouses, a former member of the National Executive Committee of the Nigerian Bar Association and was former Chairman Chartered Institute of Arbitrators, (UK), Abuja Chapter. In this episode, we analysed the following questions:
1) How far has ADR enhanced access to Justice in Nigeria?
2) What is the role of the National Industrial Court (NIC)?
3) Is there any measurable difference or impact on the Cost and Time Frame for settling disputes under ADR Compared to litigation?
4) Are employees or workers aware of ADR options regarding disputes or conflicts that might arise at the workplace?
5) To what extent employees are encouraged to use ADR to settle discrimination, bullying and harassment in the workplace-Nigeria is the given context?
6) Why is ADR more prevalent or popular in the more complex societies (in this context UK) than in the less complex societies (Nigeria)?
7) What is the way forward for mass advocacy or awareness of the benefits of utilising ADR in settling disputes or conflicts in the workplace?
8) Can Conflicts or disputes at the workplace be prevented or avoided?
9) What type of mediation is best suited for workplace conflict?
10) What are the benefits of using Mediation to settle workplace conflicts?
11) What are the disadvantages of using Mediation to settle workplace conflicts?
12) Is there any difference between Mediation and Conciliation?
13) What is your advice for people pursuing a career in ADR?
* Veritas University:
https://www.veritas.edu.ng/
*Prof’s Profile: https://paulidornigie.org/profile-of-prof-paul-idornigie-san-phd-c-arb/
INTRODUCTION
Professor Paul Idornigie pointed out that ADR means several things to several people because of its jurisprudential and conceptionally challenges. First, what does the word ADR stand for?
Second, if the A stands for Alternative, the next question is, alternative to what? Third, does the acronym include arbitration? Lastly, what are the conducts of ADR? Professor Paul Idornigie pointed out that the core of ADR is mediation. It is a non-binding process; for instance, the National Industrial Court of Nigeria (NIC) has the ADR rules, and they defined ADR to include Mediation and Conciliation, but for some purposes, Arbitration is included when ADR is seen as an alternative to litigation.
HOW FAR HAS ADR ENHANCED ACCESS TO JUSTICE IN NIGERIA?
The application of ADR processes and mechanisms has advanced the effectiveness of the administration of Justice in Nigeria. The colliery has been that there is now greater access to justice; this is demonstrable by the establishment of Multi-Door Courthouse Association in several cities of Nigeria, providing several doors they have doors of Arbitration, Mediation, Conciliation, Early Neutral Evaluation and Med-Arb etc.
WHAT IS THE ROLE OF THE NATIONAL INDUSTRY COURT (NIC)?
In Nigeria, they have the High Court Civil Procedural Rules, which provide for ADR. They have rules of professional conduct in the legal profession 2007. These rules recognise ADR to be used by Lawyers before resorting to litigation, and they now have the National Industrial Court of Nigeria(NIC). The primary purpose of the NIC is to take care of trade disputes between employers and employees, workers and workers, Trade unions and workers and Trade unions and Trade unions. There was a third alteration to the constitution in 2010. That constitution vets exclusive jurisdiction on Industrial matters on National Industrial Court, and the constitution also mandated the National Industrial Court to establish ADR Centers.
NIC mandates include labour employment, trade unions, industrial relations, and matters arising from the workplace, including health, safety, welfare, employee, worker and matters incidental hitherto. We also have a new bill, a National Assembly now called Arbitration and Mediation bill. When this bill passed into law, Mediation was formalised in Nigeria. ADR has come to stay in Nigeria, and the scope is being widened every day.
IS THERE ANY MEASURABLE DIFFERENCE OR IMPACT ON THE COST AND TIME FRAME FOR SETTLING DISPUTES UNDER ADR COMPARED TO LITIGATION?
There is a remarkable difference in costs and time frame for settling disputes via ADR compared to litigation. ADR is generally cheaper apart from Arbitration. It is essential to point out that there is controversy as to whether Arbitration is part of ADR because if it is included as part of the process, then ADR is expensive, but the core ADR processes, like mediation, are cheaper than Arbitration.
ARE EMPLOYEES OR WORKERS AWARE OF ADR OPTIONS REGARDING DISPUTES OR CONFLICTS THAT MIGHT ARISE AT THE WORKPLACE IN NIGERIA?
They are because of the third alteration to the Constitution of 2010. The issue of ADR is not only constitutionally but also statutory. To reiterate, we now have an ADR sector at the National Industrial Court(NIC). Secondly, The Trade Disputes Act of 1976 and the NIC act of 2006 expressly provide for ADR in the Industrial and Labour sectors. However, there needs to be statistics to demonstrate the awareness of ADR options regarding disputes or conflicts that might arise. Still, it is essential to say that most organisations, when drafting contracts, prefer clauses on Mediation over Arbitration.
TO WHAT EXTENT ARE EMPLOYEES ENCOURAGED TO USE ADR TO SETTLE DISCRIMINATION, BULLYING AND HARASSMENT IN THE WORKPLACE-NIGERIA IS THE GIVEN CONTEXT.
Disputes bothering on bullying, discrimination and harassment are not amenable to the use of ADR. Bullying and harassment are issues that ought to be resolved in most cases via disciplinary actions; in some cases, they may bother on crime, and if the crime is established, they will be dealt with according. Now in the area of discrimination can arise in many ways, either due to disability, race, sex, age, national or state of origin or religion. Such complaints should be adequately addressed, and discrimination complaints should be handled at the managerial level; it should be addressed for the parties to handle themselves.
WHY IS ADR MORE PREVALENT OR POPULAR IN THE MORE COMPLEX SOCIETIES (IN THIS CONTEXT UK) THAN IN THE LESS COMPLEX SOCIETIES (NIGERIA)?
The UK is well-developed in terms of industrial relations. They have the Advisory Conciliation and Arbitration Services (ACAS), whereas in Nigeria they do not have any similar body. Additionally, in the UK their use of Mediation is highly formalised. However, in Nigeria we are not that formalised, but that is not to say that we do not practice mediation; in Nigeria is just that it is a formal process. However, in the villages, there is the Obas, Emirs and Chiefs mediating. So mediation is not something new to Nigerians. It is imperative to note that there is a reported case where Customary Arbitration was recognised in the West African Court of Appeal as far back as 1932.
As recently as 2022, the Nigeria Court of Appeal also recognised customary arbitration in the case of Attamah. Customary Arbitration or Mediation is not alien to native jurisprudence because it has not been formalised. Prof Paul pointed out that is why ‘we are praying that if the new bill is signed into law, then we will now have a legal framework for Mediation in Nigeria, but as we speak, it is practised in our villages, its been with us it is not western I call it Afrocentric it is not western it has its origin in Africa.’
WHAT IS THE WAY FORWARD FOR MASS ADVOCACY OR AWARENESS OF THE BENEFITS OF UTILISING ADR IN SETTLING DISPUTES OR CONFLICTS IN THE WORKPLACE?
Under the Trade Dispute Act of 1976 there is a provision for Industrial Arbitration Panel (IAP), which is under the National Industrial Court Act are, referred to as the ADR Center, i.e. the Multi-Door Courthouses (MDC) now promote ADR. Unions should be encouraged to resort to ADR. Lawyers should also tell clients all options applicable to them- for instance, that they have a case where they are two doors-one for litigation and doors for all the ADR processes. It should not just be litigation available to them. Professor Paul pointed out that litigation should be the last door when clients come to their (lawyers) office, and Arbitration and other ADR Processes should be the first door.
CAN CONFLICT OR DISPUTES AT THE WORKPLACE BE PREVENTED OR AVOIDED?
There will always be complaints, problems or disagreements that require our attention in the workplace. Conflicts or disputes in the workplace cannot be prevented or avoided; they are inevitable however they can be managed unless one is on the robin hood kind of island- alone. That is when one can avoid conflict. Once two people gather, there must be conflict and the two people must find a way of resolving it.
WHAT TYPE OF MEDIATION IS BEST SUITED FOR WORKPLACE CONFLICTS OR DISPUTES?
Workplace conflict is also referred to as an organisational conflict. It is described as the state of disagreement or misunderstanding by individuals or groups within the organisation resulting from opposing needs, ideas, beliefs, values and goals.
Professor Paul pointed out that he always advocates for two types of workplace mediation. The first one is called self mediation-this is a situation where the mediator wears two hearts, i.e. that of a party in a dispute and the other as a mediator. The second one is Managerial Mediation, where a superior officer plays the role of a third-party neutral that facilitates negotiations between subordinates.
WHAT ARE THE BENEFITS AND DISADVANTAGES OF USING MEDIATION TO SETTLE WORKPLACE CONFLICTS
As a dispute resolution process, it focuses on helping the parties to a dispute to plan for their future relationship. It is essential to point out that it does not focus on who is right or wrong and does not apportion blame though there is a famous saying ‘that one cannot come out from court smiling, but in mediation, one can come out smiling.’
Mediation can be used to build confidence in a workplace- they focus on the need or the interest of parties rather than their legal rights, which changes how disputes are categorised, analysed and processed. Thus, mediation ensures that relationships are maintained, unlike when a party goes into litigation, where relationships are sometimes estranged forever. There are really no apparent disadvantages to using mediation in the resolution of workplace conflicts, but mediation can not be used on issues of indiscipline or misconduct and it can not serve as punishment. It should be reserved for the normal court process or the normal office discipline procedure. Nevertheless, an office should have disciplinary procedure or rules on how to punish employees for misconduct, or bad behaviour; however, mediation cannot be used for bullying or sexual harassment or intimidation.
IS THERE ANY DIFFERENCE BETWEEN MEDIATION AND CONCILIATION?
Prof Paul Idornigie pointed out ‘that he is guided by the UNCITRAL Model Law on Mediation. In hindsight, in 2002, there was UNCITRAL Model Law on Conciliation, and in that model law Conciliation was defined to include Mediation. In 2018, there was an UNCITRAL Model Law on Mediation- in this version, Mediation was defined to include Conciliation. As far as UNCITARL is concerned, there is no difference between Conciliation and Mediation in the sense that the two (2) processes- will get a neutral third party to assist them in resolving their disputes. For example, suppose a party (ies) goes to court. In that case, the Judge will pass its judgement, and if they go to Arbitration, the Tribunal will give an award, but if they go to Mediation or Conciliation, a Mediator or a Conciliator decides nothing and awards nothing; for me, it is a process where a neutral third party assists parties to solve their problems in so far the mediator can not decide anything, award anything. I do not see any differences between them; they can be used interchangeably -I am guided by UNCITRAL though the Institute of Chartered Conciliation and Mediation in Nigeria might disagree with me.’
WHAT IS YOUR ADVICE FOR PEOPLE PURSUING A CAREER IN ADR?
People pursuing a career in ADR should be open-minded or have a broad perspective towards resolving disputes. To reiterate, as a lawyer litigation should be your last choice it should not be your first choice so lawyers should have a tool kit -know when to send matters to either Litigation, Mediation, arbitration, or Early Neutral Evaluation; also a lawyer should be able to establish a nexus between a dispute and a process. For instance, post-election matters are to go to court; if it is a purely commercial dispute -it should go to Arbitration. If it is a matrimonial cause, it should go to the courts; they should know which tool to deploy at any particular time.
ADR is recommendable in the holy books- the Bible and the Quran provide. For example, in the Bible Genesis Chapter 18, verses 23 -33, the city of Sodom and Gomorrah, Abraham was a mediator, and the Beatitudes which is in Matthew Chapter 5:9- Blessed is he who is a peacemaker and Matthew Chapter 18;15-17 deals with ADR -If your brother hurts you go and point out his fault… and the Quran too stated that where two (2) are fighting they should be encouraged to reconcile and settle. ADR has the backing of the holy books.
CONCLUSION
The paper analysed the workplace conflict situation in Nigeria; while at the same demystifying the role of the National Industrial Court in Nigeria, its objectives and why disputes bothering on bullying, discrimination and harassment are not amenable to ADR. The paper concluded by advising people pursuing a career in ADR to be open-minded or have a broad perspective towards resolving conflicts. The blogger believes potential users should take on board the pros mentioned herein and opt for ADR, particularly Mediation or Conciliation.
Click here to listen to the full version of Episode 28 of Expert Views on ADR (EVA) podcast.
Enugu State Multi-Door Courthouse (ESMDC): its Journey So Far in O42 / Coal City
Director of the ESMDC, Mrs Caroline Etuk and Dr Chinwe (the blogger).
ABSTRACT
The blogger’s PhD thesis examined how Alternative Dispute Resolution (ADR) mechanisms, including Mediation, Negotiation, Conciliation and Arbitration, are being used to settle disputes in Lagos and Enugu states.
However, this contribution examines the factors that led to the birth of the Enugu State Multi-Door Courthouse (ESMDC), its Journey so far into the 042 / Coal City -Enugu State and how the scheme has become an integral part of the justice administration in Enugu State.
In hindsight, the Lagos Multi-Door Courthouse (LMDC) has proven to be dynamic and reliable. For instance, the Multi-Door Courthouses (MDC) in Nigeria now exist at the High Court level across Twenty (20) States of the Federation. This confirms the many benefits associated with ADR /MDC. Such benefits include cost-effectiveness, accessibility, simple procedures and timely processes in which relationships are restored, confidentiality maintained, and aggrieved parties receive satisfaction while at the same time attaining Justice by Compromise. However, this contribution will focus on the ESMDC; the blogger was the first researcher to critically evaluate the ESMDC. Thus her PhD findings which relied heavily on the mixed methods of data gathering, revealed for the first time that funding, awareness and more space are the biggest challenges facing the MDC in Nigeria, particularly the Enugu State Multi-Door Courthouse (ESMDC). The paper concludes that these challenges to an extent, no longer exist.
Keywords: Multi-Door Courthouse, Alternative Dispute Resolution, Access to Justice, Judiciary, Podcast, 042, Coal City, Enugu State, Nigeria; United States.
INTRODUCTION
The Enugu State Multi-Door Courthouse (ESMDC) was conceived out of the urgent need to reduce the litigation burden of the court and create a more civil and conducive atmosphere where legitimate disputes can be expeditiously and adequately dealt with. The ESMDC in 2018 (by the Enugu State Multi-Door Courthouse Law, which came into effect on the 6th of September 2018, however, the centre was formally inaugurated on the 17th of December 2018) formally opened its doors to the public, replicating the Multi-Door Courthouse (MDC) concept in Lagos State, which Harvard Law School Professor Frank Sander first proposed at the Pound Conference in 1976; a multifaceted dispute-resolution scheme currently utilised worldwide.
This process of replication and adoption of the MDC had the then Chief Judge of Enugu State, Hon Justice N. P. Emehelu, FCIArb, FICMC, F.DRI spearheaded the campaign, which is recognised as the ESMDC; in her efforts to ensure the sustainability of the newly established ESMDC, invited the former director of Lagos Multi-Door Courthouse (LMDC) Mrs Caroline Etuk to start up this scheme in the Eastern part of Nigeria- 042 / Coal City.
Mediators, Conciliators, Arbitrators and Case Managers ESMDC
THE JUDICIARY AND THE ALTERNATIVE DISPUTE RESOLUTION
To reiterate, the Hon. Justice N.P. Emehelu (Chief Judge Emeritus) passionately embraced this scheme or concept, which resulted in the scheme becoming the ADR hub for the Eastern part of Nigeria. It is essential to point out that on retiring, the Chief Judge Emeritus handed over the mantle of leadership to the present Chief Judge of Enugu State- Hon. Justice A.R. Ozoemena.
Against this backdrop, it is argued that Judicial leadership has become crucial in driving ADR in the right direction. For example, the unwavering support by the Lord Hon. Justice R.C Agbo (JCA). Following through, in recent times, there have been ADR platforms at every level of the Court System, accordingly finding a solution to the problems associated with litigation.
Subsequently, Hon. Justice A.R. Ozoemena, on the 15th of December 2022, reaffirmed his commitment to facilitate the ESMDC to its growth and impact as a dispute resolution by following the footsteps of his predecessors and initiator of the ESMDC, Hon. Justice N.P. Emehelu (rtd) and the tenacious benevolence of the Enugu State Governor. He pointed out that in 2021 an ADR Hub was established by opening the Nsukka centre for Nsukka, Obollo-Afor, Enugu Ezike, Ibagwa-Aka, Ette, Ogbede, Uzouwani, Ikem and Orba. This will bring up to speed the services of the ESMDC to the public and make it more accessible.
Additionally, he authorised the Enugu State Restorative Justice programme, which will also be domiciled in the ESMDC new edifice. It is argued that in Nigeria, Enugu State is the third (3rd) State to embrace restorative justice in its criminal justice administration.
The benefits of restorative justice cannot be overemphasised- bringing reprieve to victims of crime and affected communities, rehabilitating offenders, particularly juveniles and decongesting correctional centres of frivolous cases. Structures are being put in place for the rollout of this programme, such as the creation of a legal framework by the amendment of the Administration of Criminal Justice Law of Enugu State.It is essential to note that the Enugu State Justice Reform Team is facilitating this.
Finally, fostering an ethos of negotiation between government agencies is a universal trend that is widespread in developed economies. For instance, in resolving disputes between one government agency and another or between a government agency and private sector institutions, recourse is made via ADR for the amicable settlement of disputes. Hitherto, the ESMDC, on the 4th of January 2021, inaugurated the most erudite governing council of any Multi-Door Court (MDC) in Nigeria into the Governing Council of the ESMDC. They include Hon Justice C.C Nweze, (PhD) JSC, FCIArb, Vice Chairman, Chief (Mrs) A.J. Offiah SAN, a foremost advocate, Arbitrator and Mediator. Hon Justice R.O. Odugu, Chairman of the ADR Judges and Magistrate Forum and certified mediator of the Centre for Effective Dispute Resolution (CEDR) UK. Hon Justice C.C. Ani (PhD), ADR Judge and accredited mediator of the Center for Effective Dispute Resolution (CEDR) UK; Chief Melitus Eze, (Life Bencher), Hon. Attorney General and Commissioner for Justice of Enugu State; Mrs Caroline Etuk, Director of the ESMDC, amongst others.
Hon. Justice N.P. Emehelu, Emeritus Chief Judge of Enugu State.
INITIATING A CASE AT THE ESMDC:
A matter may be commenced at the ESMDC in three (3) ways-
I. Walk-Ins: Any party to a dispute may initiate a Mediation, Arbitration, Early Neutral Evaluation or any other ADR process service by completing and filing the requisite forms at the ESMDC.
II. Court Referrals: The Presiding Judge or Magistrate in a matter already in litigation or during a pre-trial conference may refer parties to the Centre in appropriate circumstances.
III. Direct Interventions: The ESMDC, in circumstances where public interest or the interest of the disputing parties so demand, may approach the parties to assist in resolving their dispute.
THE ADR PROCESS:
A. The Initiation Stage is the stage at which disputants complete and file the ESMDC Request form along with supporting documents to initiate the ADR process, or the matter is referred to the ESMDC by the Court for ADR Intervention. The other party’s submission to the process is also essential to this stage.
B. At the Intake Screening Stage, the ESMDC determines the most appropriate ADR Door for the dispute.
C. The Pre-session Stage is a meeting where the parties are acquainted with the ADR procedure to be deployed, choose a Neutral, and commit to the process by signing the relevant confidentiality and other preliminary agreements.
D. The ADR Session Stage is the stage at which the ADR intervention commences, and the disputants fully engage in the process towards resolving the dispute.
E. The Closure Stage is the final stage of the process where there is a Settlement, an Award or a transition to other Hybrid Processes which may be deployed in a continuum.
Finally, a settlement agreement duly signed by the parties when endorsed and adopted by an ADR Judge is deemed enforceable as a Judgement of the Court of Enugu State. Thus far, settlements are enforceable at the ESMDC.
THE STEPS TAKEN SO FAR -FROM THE DAY OF INCEPTION TO DATE:
The Centre’s objective was clearly stated in Section 4 of the ESMDC Law 2018, which includes enhancement of access to justice by providing alternative mechanisms to supplement litigation in the resolution of disputes and to serve as a focal point for the promotion of ADR in the Enugu State.
Against this backdrop, they have engaged with a broad and immeasurable range of clientele as the Centre can obtain referrals from the courts of Enugu State, the Federal High Court, and Courts of other jurisdictions that provide top-notch ADR services to individuals, corporations, organisations (governmental and non-governmental). Its most well-developed product mediation is utilised through well-articulated systems of service delivery within the framework of the ESMDC (ADR Procedure) Rules issued in 2018, its Standard Operating Procedures (SOPs) and Key Performance Indicators (KPIs).
Nevertheless, its arbitration door is yet to gain patronage from potential clientele. However, its early neutral evaluation door has recently been activated with the appointment of four (4) retired judges and four (4) retired magistrates to provide more service options. In every area of ADR service delivery, the Centre strives to benchmark internationally acceptable levels of efficiency for court-connected programmes and to address the factors that affect the level of effectiveness, productivity, and probity.
Furthermore, to boost its service capabilities through capacity building of mediators for its distinguished panel of neutrals, the Centre introduced the Enugu State Mediation Skills Training Certification Programme to train mediators for effectively resolving disputes which have entered the court system. This training is followed by a period of mediation mentorship, one which seeks to produce a high calibre of professional mediators with best-practice competencies and ethics.
The ADR Committee of the Nigerian Bar Association (NBA) Enugu Branch, in collaboration with the ESMDC, has organised Mediation Advocacy skills training for lawyers. Additionally, the Youth Mediation Programme, launched this year, 2020, has trained Fifty (50) Youth lawyers in mediation skills.
Consequently, the Enugu State Settlement Week (ESSW) has become a part of the calendar of the Enugu State Judiciary. Given its statistics, in terms of participating courts, case referrals, submissions, settlement rates and user satisfaction, its prime objective of decongesting the Courts with the attendant effect of the improved effectiveness of the judicial system while providing satisfying, timely and cost-effective justice to litigants is a realisable goal.
For instance, Settlement Week was organised in 2019, 2020 and 2021 when the first District Settlement Week (DSW) was launched in the Nsukka area. This programme kicked off service provision to disputants and litigants in Nsukka and the entire scope of Enugu-Ezike, Obollo-Afor, Ogbede, Ibagwa-Aka, Ette, Uzouwani, Ikem and Orba.
Strengthening their grass root dispute resolution framework is an integral part of their strategy. Additionally, they have engaged the Magistracy of Enugu State at a more interactive level to pay attention to the vast reservoir of disputes from a more significant segment of the society as well as providing the needed solutions to those problems.
Finally, the ESMDC entrance into the commercial sector through its Commercial Intervention Strategy and development of a Banking Track is ongoing. For example, this year, they focused on the banking sector and engaged Micro Finance banks- which birthed incredible results; they now have an increasing number of cases for resolving bank-customer-related disputes.
New Office Reception ESMDC
PhD FINDINGS:
It is pertinent to point out that for the first time, my PhD findings (2019-2022) (Dr Chinwe Egbunike-Umegbolu) revealed that minor criminal matters were settled via Mediation / the Restorative Justice Door in Nigeria precisely in Lagos Multi-Door Courthouse (LMDC) and Enugu State Multi-Door Courthouse (ESMDC) precisely via Mediation.
The blogger’s PhD findings also revealed for the first time that funding, awareness and more space are the biggest challenges facing Nigeria’s Multi-Door Courthouse (MDC).
Consequently, the blogger’s research recommendation particularly emphasised that social media (Podcast) can be a great tool in advancing and creating more awareness on the ADR and MDC agenda.
It gives the blogger great joy that this is no longer the case; on the 13th of December 2022, the blogger and Benjamin Aneke (Esq) planned on creating an ESMDC podcast channel (I will share the link on my blog when it happens) and on the 15th of December 2022 the Governor of Enugu State, Rt. Hon. (Dr) Ifeanyi Lawrence Ugwuanyi, in partnership with the Enugu State Judiciary, the present Chief Justice of Enugu State, Hon Justice A. R. Ozoemena, moved the ESMDC from a smaller structure /edifice to a bigger one.
CONCLUSION:
The ESMDC has achieved this incredible feat within a short period while maintaining a growth trajectory that has identified it as an institution of choice for resolving commercial, civil, and family disputes in the Eastern part of Nigeria. The ESMDC has retained an average settlement rate of 67% of its mediated cases; however, it urgently needs to increase its case intake. This can be done by creating more awareness via their social media platforms. Thus far, the ESMDC is still a work in progress.
NOTE:
- 042 is a landline dial code given to Enugu state, the coal city back in the ’90s. The popularity of the number “042” can be attributed to pop culture; musicians like ‘Phyno’ amongst others, popularised the number ‘042.’
- Enugu State is often called the ‘Coal city’ reason being that coal was discovered (by the British colonist) in Enugu – “Enu Ugwu” connotes “the top of the hill.”
REFERENCE
- His Excellency Rt. Hon. Dr Ifeanyi L. Ugwuanyi, Executive Governor, Enugu State, Opening and Naming Ceremony for the New Enugu State Multi-Door Courthouse Headquarters,13,14
- Chinwe Egbunike-Umegbolu, Dispensation of Justice: Lagos Multi-Door Courthouse (LMDC) as a Case Study in Nigeria (A Thesis in the Department of Business and Law Submitted in partial fulfilment of the requirement of the University of Brighton for the degree of Doctor of Philosophy) 318
- ESMDC Guide- 2019
- Property Finder: https://propertyfinder.com.ng/why-is-enugu-called-042/ accessed 1st January 2023
Episode 31 of the EVA Podcast: Kenneth Cloke (Prof)
“Ken Cloke is a hero, a role model and one of the true pioneers of the field. Mediation in Los Angeles would not be what it is if he had not led the way. He’s a big giant, and a lot of us are standing on his shoulder. He has an extremely gentle personal style, but at the same time, he speaks the truth, and he deals with the challenge. Ken is both kind and firm at the same time-in a way that helps people move from conflicts.” Attorney- Mediator Jeffrey H. Kichaven.
The EVA Podcast is focused on providing useful, viable, dependable, simple, quality, and affordable ways of application of the ADR mechanisms in settling conflicts or disputes with ease; while exposing the numerous advantages and pleasant opportunities the knowledge, application, and use of the ADR alternatives affords users globally. On this note, I am afforded the privilege to interview the living legend in ADR, Prof. Kenneth Cloke, on Episode 31 of the Expert Views on ADR (EVA) Podcast.
Kenneth Cloke is renowned and reputed worldwide for excellence as a mediator, dialogue facilitator, conflict resolution systems designer, teacher, public speaker, author of numerous books and articles, astute pioneer, and leader in the field of mediation and conflict resolution with a track record for excellence spanning through over thirty seven (37) years of hard-work and continued sacrifices. I am exceptionally pleased to host this very episode.
Reminiscing on how I created the EVA Podcast during my Ph.D. days at the University of Brighton- to sensitize the general public about the advantages of utilizing the ADR mechanisms. With ADR being my core research area, I was driven by the passion for educating the general public on how to apply the ADR mechanisms in settling their respective disputes and conflicts that arise on a daily basis. My paramount concern was how to spread this ADR gospel across – free and at no cost whatsoever; hence, the birth of the EVA Podcast on the online space where I believe many would have unhindered access to listen to it, gain from it, and help to further spread these Alternatives.
Through the EVA Podcast, I had no doubts that the aims of advancing ADR worldwide would be achieved in the nearest future. It is my vision to inspire the general public through this platform and change the psyche and perception of the citizenry from litigation to ADR methods of settling disputes (I call it the peace-making route) in different jurisdictions. I firmly believe that in the next ten (10) years, the realities of the impact of EVA Podcast globally will be overwhelming.
Additionally, I wanted to improve my skills – pronunciation, my accent (to acquire the British accent (lol), I’m so far from it, as you can see, but I will definitely get there), my presentation, and my writing skills. I also wanted the show to be diverse and inclusive.
Of course, I needed permission from my school to kickstart this dynamic and innovative initiative. In this regard, I emailed Steve Reeve, who thought it was an incredible idea and the first of its kind (no Ph.D. student had a podcast centered around their research); thus, the EVA Podcast was officially approved.
I also spoke to my supervisors, Dr Adaeze Okoye and Dr Claire-Michelle, who have been supportive to date (promoting my podcast and blog post).
These aims were realised and my little dreams to put out ADR in the online space uniquely packaged via a Podcast became a reality! I have had over eight hundred (800) people listening to my podcasts from not less than thirty-seven (37) countries!
The EVA Podcast successfully interviewed several Leading Experts and Egg Heads in the Legal Profession and ADR from different jurisdictions.
I have also had massive support from my Ph.D. classmates – Akinyo Ola, David Nzeribe, Bisi Bajela, Sis Hilda Uzokwe, and Ben Brindle (they were so kind and kept encouraging me ). I also had my mentors – Prof Emilia Onyema, Prof Mark Feldman, Prof Hiro Aragaki, Prof David Allen Larson, Barr Ikechukwu Onuoma, and Barr. Nnezi Ivenso, FCIArb who supported me and encouraged me all through.
The journey has been both tough and eventful. At some seasons, periods, moments, and intervals on this great journey, I have felt like giving up, but thanks to you all that believed in me even at my lowest – my family, my colleagues, my friends, my guests on EVA, my well-wishers and all those that encouraged me in one way or the other; your supports have led me thus far.
Most Importantly, I dare not fail to credit God for all I have done so far.
Stay tuned for more Episodes of Expert Views on ADR (EVA) Podcast/ YouTube.
Yours Sincerely,
Chinwe
ADR and workplace Conflict: A US Perspective with David .A. Hoffman
We should make ADR a mandatory subject for teaching lawyers- we should put it on the bar examination, so before you become a lawyer, you will have to study ADR. When you think about the popular media, what impression do people have of lawyers and conflict resolution? They see programmes about courtrooms and trials but do not see shows about mediators. There was a show in the US called ‘fairly legal’ that ran for three seasons and then died; it is a show all about mediators, but it seems that the popular chase finds conflict more entertaining than peace-making– David .A. Hoffman, Excerpts from Expert Views on ADR (EVA) Podcast-Episode 24
Abstract
I was honoured to welcome David Hoffman, a renowned mediator, arbitrator, and attorney. David teaches courses on collaborative law and mediation at Harvard Law School. He also serves on the faculty of the Program on Negotiation’s Harvard Negotiation Institute, where he teaches the Advanced Mediation Workshop “Mediating Complex Disputes.” David is the founder of Boston Law Collaborative LLC (BLC); he has handled more than a thousand commercial, family, employment, construction, personal injury, insurance, and other business cases.
BLC was the 2009 recipient of the American Bar Association’s annual Lawyer as Problem Solver Award and the 2010 recipient of the International Institute for Conflict Prevention and Resolution’s annual Law Firm Award for Excellence in ADR. In 2004, Hoffman was chosen as one of the “Top 100 Lawyers” in Massachusetts in Boston magazine’s Super Lawyers Directory and has been consistently named a New England Super Lawyer since the listing began. He has also won several awards for his work as a mediator, including the Lifetime Achievement Award from the American College of Civil Trial Mediators and the highest award given by the American Bar Association’s Section of Dispute Resolution, the D’ Alemberte-Raven Award.
His research interests are Mediation, negotiation, and dispute resolution. He also has several publications to his name. It is imperative to mention that since 2008, David has taught the Mediation course previously taught by Prof Frank Sander (Founder of the Multi-Door Court House). Education: A.B., Princeton University M.A., Cornell University J.D. and Harvard Law School.
In this episode, we analysed the following questions:
1) Whether or not employees or workers in the US are aware of ADR options regarding disputes or conflicts that might arise between them and their employers?
2) Why is ADR more prevalent or popular in the more complex societies (US) than in the less complex societies?
3) To what extent are employees in the US encouraged to use ADR to settle discrimination or bullying and harassment in the workplace?
4) What is the way forward for mass advocacy or awareness of the benefits of utilising ADR in settling disputes or conflicts in the workplace?
5) How about the Court-Connected ADR (Multi-Door Courthouse-MDC) in Nigeria?
6) What is your advice for people pursuing a career in ADR?
7) Can you tell me more about the ADR programme you do or carry out at Harvard Law School and Boston Law Collaborative LLC?
*Boston Law Collaborative, LLC < https://blc.law/about-blc/>
Keywords: ADR, Workplace conflict, Access to Justice, Employment relations, Human resource management, US; India.
Introduction
1) Whether or not employees or workers in the US are aware of ADR options regarding disputes or conflicts that might arise between them and their employers?
There is a fairly low level of awareness in the US except in a couple of situations. However, a portion of the US workforce is unionised; and a fairly high percentage of the employees realise that if they have a dispute with their employer, there is a procedure in the collective bargaining agreement- processing grievances and ultimately going to Arbitration if the grievances are not resolved. Nevertheless, this is less than Ten (10) per cent of the US workplace; unfortunately, it could have been much better if there was a high level of unionisation. Laws in the United States have been interpreted in ways that make unionisation efforts hard to succeed.
However, a second segment of the US Workforce is not unionised and is not subject to collective bargaining and is not unionised. But where there are written employment agreements that the employees have to sign, those employment agreements often have provisions that require mediation in the event of a dispute. If mediation does not resolve the dispute, it goes to private arbitration.
He further stated that the workers or employees who signed those contracts have an awareness but need a deeper understanding of the differences between mediation and arbitration and what will be involved if they use those provisions. And for people in the United States who are in workplaces without such agreements, either individuals-he does not think there is a high-level awareness if they have a dispute with their boss, they could suggest mediation.
2) Why is ADR more prevalent or popular in the more complex societies (US) than in the less complex societies?
David offered three theories- First of all, in pre-industrial societies in some parties of the world; China is the leading example. Mediation was widely used at the village level and in many other parts of the world. They are sociologists and anthropologists, and historians who discovered that mediation has a long history. We in the post-industrial modernised world were unaware of it.
Often these mediations involved using the village elder, a religious leader, or a person in authority. The methods were not necessarily adjudication; the process used was to restore harmony by agreement. There is a lot more ADR out there in an informal way than in the less industrialised parts of the world. Additionally, the development of a modern system that is Mediation, Arbitration, Early Neutral Evaluation, Conciliation etc., has been because the judicial system is not working well.
For example, the backlog of India’s public court is enormous, yet the development of dispute resolution has yet to be robust. Thus, why mediation has not become more popular in developing (less) societies has to do with cultural norms. It may be adjudication-which is considered the proper way to do it.
Nevertheless, in the US, UK and EU Countries, there has been a tendency on the side of the business to look at litigation as way too expensive and time-consuming in business terms. Another reason why mediation is popular, there is a strong incentive coming from the progressive parts of their society that believe that negotiation and people with different views sitting down to talk together is a good thing for society. Another motivation is that for businesses, it makes a lot of sense to pay lawyers a substantial amount of money for a small dispute.
For example, David represented a company that owned a building (warehouse), and it had a big roof -a six-acre roof, and the roof began to fail in the Tenth (10th) year. His client building on it wanted to replace the roof because it is still under warranty. The manufacturer of the roofing system said, ‘no’, they are not going to replace the old roof because my client has already got nine (9) years out of it; we will give you 1/10th of the value, which led to conflict. So he litigated that case for nine (9) years, and the whole total legal fee (for both sides) came to $600,000, and the roof itself only cost $300,000. Thus, $600,000 was spent on lawyers to figure out who would pay for $ 300,000.
3) To what extent are employees in the US encouraged to use ADR to settle discrimination, bullying, and harassment in the workplace?
There is a well-established system of Adjudication for discrimination cases in the United States and other parts of the world. In the US, both the national federal agency and the state anti-discriminatory agency have mediation programmes, and the cases are filed if it is found to have enough merits in the allegations to warrant processing the claim.
Generally speaking, the participants are offered the option of mediation, and occasionally they are ordered to at least try mediation. The principle of mediation is voluntariness; people are required to stay in mediation until they have an agreement- it is not a voluntary process. But interestingly, many of our courts and anti-discriminatory agencies have a procedure requiring parties to try mediation at least. It raises an interesting policy question which is -if mediation is confidential, then how did these agencies and courts, for that matter, enforce the obligations to try mediation in good faith because they are not allowed to enquire about what happened in the mediation. Thus, there is an unresolved tension between confidentiality and policies that want to encourage the use of ADR.
4) What is the way forward for mass advocacy or awareness of the benefits of utilising ADR in settling disputes or conflicts in the workplace?
There are several ways that awareness can be created, so one of them begins with elementary school; the school will benefit not only from having training in negotiation and conflict resolution but also pure mediation programmes.
Many schools in the United States, not the majority, but many, have pure mediation programmes in which students are trained in having to mediate conflicts amongst other students. Second, employers could do a better job of educating their employees about dispute resolution options and implementing policies.
For example, the Boston Law Collaboratives have employment policies that say, ‘if there is a conflict or a dispute, we agree to go mediation, and Boston Law Collaboratives will pay eighty (80%) of the cost and the employee Twenty (20%). Fortunately, Boston Law Collaboratives never had to use this policy, and the policy also said, ‘if we don’t resolve the conflict in mediation, then one option is Arbitration.’ However, the policy says ‘that we only go to Arbitration at the option of the employee.’ In other words, as the managing member of the Boston Law Collaborative, I cannot require any employee to go to Arbitration; if they want to go to court, they can go to court.
Finally, we should make ADR a mandatory subject for teaching lawyers- we should put it on the bar examination, so before you become a lawyer, you will have to study ADR. When you think about the popular media, what impression do people have of lawyers and conflict resolution? They see programmes about courtrooms and trials but do not see shows about mediators. There was a show in the US called ‘fairly legal’ that ran for three seasons and then died; it is a show all about mediators, but it seems that the popular chase finds conflict more entertaining than peace-making.
5) How about the Court-Connected ADR (Multi-Door Courthouse-MDC) in Nigeria- the court refers parties to mediate.
It is wonderful to hear that in Lagos State, there is MDC, the idea that was created by Professor Sander; he was my advisor in Law School and became a friend, but sadly he has passed on. His idea for MDC was that if someone shows up with a conflict, the courthouse serves as a triage centre and sends them off to mediation, arbitration, conciliation etc. or to a village informal dispute resolution system. The MDC is a great idea, and it is not widely adopted; We pointed out that one of the reasons why it has yet to be adopted in all US states, even in Nigeria and many parts of the world, is because of funding.
It is imperative to point out that in the last thirty (30) years or so, we have seen a major retreat from public investment and public institutions; a part of it has been the inflation in the economy, and another reason, from my point of view, is the conservative tendency to the private institution as opposed to public ones. Hence, the idea of giving the court system more money to hire mediators and evaluators is a terrific idea. David hopes the pendulum will swing in the other direction and people will realise that it is a wise use of public funds to reduce the independence on lawyers and trials- to reiterate nine (9) years of litigation over a simple roof case.
It is imperative to point out that in the last thirty (30) years or so, we have seen a major retreat from public investment and public institutions; a part of it has been the inflation in the economy, and another reason, from my point of view, is the conservative tendency to the private institution as opposed to public ones. Hence, the idea of giving the court system more money to hire mediators and evaluators is a terrific idea. David hopes the pendulum will swing in the other direction and people will realise that it is a wise use of public funds to reduce the independence on lawyers and trials- to reiterate nine (9) years of litigation over a simple roof case.
6) What is your advice for people pursuing a career in ADR?
We do not have an established career path in ADR. For instance, if someone wants to become a doctor, an architect, or even a lawyer, the path is that you get some independent schooling and then apply for an entry job, which is true for academics. Nevertheless, we only have a few entry-level jobs in the world of dispute resolution. There are few mediation offices, and they sometimes hire people. We have non-profits and even some profit organisations that hire administrative people; sometimes, they can transition from an administrative role into a dispute resolution role, but that is very hard. However, most of the private mediation and arbitration work in the United States is done by lawyers or retired judges with a certain amount of experience managing those kinds of conflicts.
However, there are some exceptions; for example, in family law, mostly divorce, there are many therapists and couple counsellors who become mediators in the labour management setting. Sometimes, there are experts in labour relations, but they are not lawyers, and they do jobs as arbitrators and mediators in the environmental law area. Many of the mediators are not lawyers but have very substantial expertise in the technical areas of environmental conflict resolution.
7) Can you tell me more about the ADR programme you do or carry out at Harvard Law School and Boston Law Collaborative LLC?
At Harvard Law School, there is a community mediation programme called the Harvard Mediation Programme. It is quite unique because it trains students on how to be mediators and provides community members training. Hence, the panel of mediators at our mediation programme consists of students and people that are not students- it provides services for low-income individuals in the district courts and the small claims courts. So that model of service for people who cannot afford to hire mediators is extremely important, and there are thousands of community mediation programmes all over the United States. Unfortunately, they are not well funded. Most of them get no public funding; hence they have to do fundraising to support these volunteers’ efforts so they have enough money for administrative staff.
David is very proud that Harvard Law School has robust, successful community mediation programmes that serve the public. At Boston Law Collaborative, we created a separate branch called the Boston Law Collaborative Institute. The Institute’s purpose is to provide training and workshops in various areas related to dispute resolution. One of those areas is diversity, equity and inclusion and how to make the world a less prejudiced biased place. We also host workshops on mediation skills, and ‘I recently offered a workshop called Law as a Spiritual Practice. Most people think of Law as anything but a spiritual practice, but the spirit of service is the value I consider spiritual and very important.’
Conclusion
The paper analysed the current workplace conflict situation in the US; it also delved into the idea behind the creation of the MDC and why it is not widely adopted in both Jurisdiction – UK and Nigeria. The paper went on to address potential users of ADR on the steps to follow in case of any arising disputes or conflicts in the future. The blogger believes potential users should take on board the pros mentioned herein and opt for ADR, particularly Mediation or Conciliation.
Click here to listen to the full version of Episode 24 of Expert Views on ADR (EVA) podcast.
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) What are the main hindrances to Inconclusive communication?
6) 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
Introduction
What do we mean by these types of communication? These are communication of inclusiveness. It’s a language of sharing ideas, concepts, interests and insights through openness and searching to reach common understandings. By inviting others verbally and non-verbally to be part of our thoughts, an environment of mutual discovery is created. To be most effective, all parties involved in the dialogue must be open to the invitation. Why? This is because that constructive communication entails four elements- Concept, Feelings, Interest and Humaneness. On the other hand, civil dialogue can be used in any situation involving explanations and developing relationships. It does not apply to chit chat.
What does Constructive Inclusive Communication entail?
Charlie pointed out that he considers the four terms constructive, inclusive, civil and mindful communication to be synonyms. It is a development of the consciousness of active listening. For instance, when he is talking to someone, he speaks in a way that he is sending a message to them. He wants to understand what they are trying to share with him; though he may disagree with it but he would listen to understand it. Inclusive Communication addresses these problems with specific examples so that people can have mindful communication.
Where can Constructive / Inclusive Communication be used?
For instance, in the United States, Constructive / Inclusive Communication can be used in the government because every bill or law or regulation that is passed will include the thoughts of everyone. The second place where this can be used is in the home- it helps the relationship. Finally, where Constructive / Inclusive Communication can be used is at the high school level. The kids would know how to communicate better and thus would have a great relationship. Thus, Constructive Inclusive Communication applies to everyone.
Is perception essential for Inclusive Communication?
People’s experiences are entirely different, and out of those experiences, whether from bad parents amongst others- the exposed experiences becomes embedded in their mind. Hence, some perceptions are the results of people’s experiences. However, some of these perceptions are so embedded that people often do not know they are there, which affects how they relate to others. Nevertheless, constructive inclusive communication helps people make themselves aware of the perceptions that exist in their minds so that they can change them.
What are the basis and importance of perceptions?
Generally, people perceive concepts through the lenses of their experiences. Hence, each person perceives ideas or concepts differently due to their experience. Failure to understand and accept this concept hinders reaching common understanding and empathy. Not being tolerant of the differences in persons’ perceptions is a roadblock to a common understanding.
Assumptions are the result of a lack of understanding which in turn results in mistrust. These assumptions are often the result of erroneous perceptions. Thus, without understanding, there are assumptions which often result in cycles of mistrust- Negative assumptions, Observed aggressive behaviour and Self protective behaviour. It is essential to point out, the only way to break these cycles is to accept the concept of perceptions. Without acceptance teamwork and common understandings become inconsequential/meaningless, particularly in mediation.
What are the main hindrances to Inconclusive communication? The main hindrances to inclusive communication are lack of good faith & trust and the inability to communicate.
In your book- Constructive Communication: A path for Challenging Situations, you used the acronym VECS; Can you explain this acronym? VECS is an acronym used by all mediators. It stands for Validating – Empathizing – Clarifying – Summarizing
Validating: Refers to facts. This does not mean that I agree with the other person. An example could be, understanding the beliefs of another person even though you may not believe in the same way. To understand and accept is not the same as agreeing with a concept.
Empathizing: Refers to emotions and feelings. We are sharing that we can identify with the person’s emotions and feelings. An example could be, “I believe I can understand your feelings of losing your job. I went through the same thing a few years ago.” Without empathy, the thinking process may be impeded. Often, it is the key to a breakthrough in negotiations.
Clarifying: Sends a message that we are interested in the person’s ideas. Assists us to adjust the concepts being shared to our way of thinking. i.e., our way of forming perceptions. Clarifying often includes clarifications which initiate some good inclusive communication.
Summarizing: Repeats back in a shortened version what we believe we have heard. Often a clarification of the summary is made by the speaker. This clarification by the speaker starts a sharing. Thus, it’s better to summarize and have some additional clarifications than to assume.
CONCLUSION :
By practicing VECS with persons with whom we are comfortable, or during mediation sessions, we can change our present paradigm of communicating to one of inclusive communication.
Click here to listen to the full version of Episode 20 of EVA.
Reference
Charlie Young, Constructive Communication with a Path for challenging situations (Revised Edition 2017)
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 19 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.
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? With Professor Emilia Onyema
Professor Emilia Nneka Onyema stated that
‘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.’ Excerpts from Episode 15: Careers in ADR with Professor Emilia Onyema
The question below was then posed by the blogger (Chinwe Stella Egbunike-Umegbolu) on member connect. resolution. institute. See the 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
During the interview on Expert Views on ADR (EVA) vid / Podcast Show, Professor Emilia Nneka Onyema made a very interesting point. She highlighted
‘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://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 response:
B.T
Posted 16 days ago
Reply
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.-
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
Reply
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?
J . W
Posted 15 days ago
Reply
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?
G. R
There are two parts to the definition of ‘alternative”.
- (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
Posted 14 days ago
Reply
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——————————
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?
N.H
Posted 13 days ago
Reply
Thanks, M and G for your responses to this question. I enjoyed reading your thoughts.
7. RE: Is Arbitration within the remit of ADR?
J. W
Posted 16 days ago
Reply
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?
G. R
Posted 16 days ago
Reply
The United Nations Convention on International Settlement Agreements Resulting from Mediation – The Singapore Convention – defines ‘mediation’ as any process whatever it’s called (and that includes conciliation, facilitation, restorative justice and all other descriptors) that does not impose a solution. It excludes arbitration. ARTICLE 2, CLAUSE 3.
“Mediation” means a process, irrespective of the expression used or the basis upon which the process is carried out, whereby parties attempt to reach an amicable settlement of their dispute with the assistance of a third person or persons (“the mediator”) lacking the authority to impose a solution upon the parties to the
dispute.”
dispute.”
You can look at traditional judicial determinative processes and non-judicial determinative processes like arbitration as processes where the power is with the determiner and the parties are channelled (or funnelled) through their lawyers. The parties pay the money and watch the one-act play from the back of the room. They simply await the verdict. The alternative is where the power is with the parties. The matter still proceeds in the shadow of the law and can be converted into a legally binding agreement by lawyers. In this alternative process, the law and the legal representatives are servants of what eventually emerges through the interactive mediation process. That’s why it is such an alternative. Whereas, in the judicial/ arbitrative approach the law and the legal profession are the masters of the process and the parties its servants.
9. RE: Is Arbitration within the remit of ADR?
D. M
Posted 16 days ago
Reply
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?
T. D.
Posted 16 days ago
Reply
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?
A. P
Posted 16 days ago
Reply
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?
T.D
Posted 16 days ago
Reply
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.——————————
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
Reply
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?
T. D
Posted 16 days ago
Reply
“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?
D.D
Posted 16 days ago
Reply
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?
G. R
Posted 16 days ago
Reply
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?
T. D
Posted 16 days ago
Reply
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?——————————
“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?
G. R
Posted 16 days ago
Reply
Two federal circuit court judges in the Adelaide registry refer matters in their list to each other for judicial mediation conferences. During Covid, they were called judicial assessment conferences.
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
Reply
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.——————————
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?
Donna Ross
International ADR Practitioner
Donna Ross Dispute Resolution
Melbourne VIC
International ADR Practitioner
Donna Ross Dispute Resolution
Melbourne VIC
Posted 13 days ago
Reply
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.
21. RE: Is Arbitration within the remit of ADR?
A.P
Posted 12 days ago
Reply
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.——————————
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?
A. B
Posted 12 days ago
Reply
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 |
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G.R:
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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.
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.
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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?
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.
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.
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