By Omowunmi Oladokun
ADR Simply means Alternative Dispute Resolution
From the above, we can presume that its another way to settle our disputes. The court is the institution/the main body (Judiciary) vested by the government to adjudicate disputes.
Many of us have been to the court. (whether you sued someone or someone sued you) and I presume you are aware of the challenges we face in court.
As a scenario story,Margaret started a beauty salon and in her bid to expand her business, she approached a money lender group called kiakia money.
She got a loan of N500,000 and she expanded her shop, printed cards, bought new equipment and employed 2 other staff. Few weeks later, two salon were opened close to her shop and she could not cope.
She lost most of her customers and was not able to refund the money on the agreed date. After the due date, she was arrested by a police officer and was informed that she has to pay the sum of N700,000 comprising the loan and interest she got six months ago.
She disagreed and claimed that she was informed that the interest payable on the loan sum is just N80,000 for six months.
She informed her lawyer and she was bailed. She filed a suit at the Magistrate Court against Kiakia money for taking over her shop, confiscating her equipment, public harassment and keeping her in the police cell for 4 days.
After 10 months of futile visit to court, she realized that
i). Time has been wasted without proper determination of the matter.
ii) She has spent so much on filing the matter and paying the lawyer.
iii).She has no witness and document whatsoever to prove the matter.
iv)She didn’t understand the whole process in court.
ADR method of settling dispute aren’t the best ways but they guarantee you of:
i).Quick determination of your matter
ii).Settling dispute at cheaper rates
iii). More conducive and simpler way of settling disputes
iv) and most important of all is that the relationship may be preserved. (such that Margaret can always get a loan from KiaKia money after settling).
TYPES OF ADR.
NEGOTIATION: Discussion aimed at reaching a conclusive agreement.
MEDIATION: mediators help parties to reach an agreement/ settlement.
ARBITRATION: deliberations, written decisions by arbitrators appointed to end with an arbitral award which may become binding.
CONCILIATION: separate meeting with the parties in an attempt to resolve there differences.
1. NEGOTIATION AS AN ADR METHOD.
It is more private than other method because it is only between the parties involved. It is faster, informal, flexible, sustainable and cheaper. It’s a voluntary process and It preserves relationship more than other means of settling disputes.
Parties may design an agreement reflecting there interests without a third party Interference.
Ways of Negotiating are:
i) Considering the interest of the opposing parties first (Competitive based approach.)
ii) Common interest and values of both parties are considered (Cooperative based approach.)
iii). It may involve bargaining on common grounds.
2. MEDIATION AS AN ADR METHOD
One of the method of resolving dispute.A third party is brought in and he helps the parties to explore ways to settle there differences.He propose solutions to the parties.
Its always private and more confidential ; he may meet with parties separately. Its very economical, effective and ensures that disputes are resolved efficiently. Matters can be resolved within hours and weeks.
Ways of mediating are:
I) Introduction.
ii) Statement of the problem.
iii) Gathering information and materials.
iv) Identification of the problem.
v) Bargaining and generating options and reaching a final agreement.
3. ARBITRATION AS AN ADR METHOD
Parties agree/agreed to resolve by arbitration. An expert arbitrator is appointed (the arbitrator may be a lawyer and this is more formal than other alternative means of resolving disputes
It is becoming popular and prevailing for resolving commercial dispute both locally and internationally. It may become complex like litigation (involving evidence, witnesses)
Arbitral awards are binding and can be enforced by the court.
The ways of arbitrating are:
i). filing and initiation
ii).the appointment of the arbitrator
iii).the arbitrator communicates clear expectation and boundaries
iv)the arbitrator conducts a preliminary hearing.
v)obtaining information and Exchange of such information.
vi)Hearing of the matter.
vii) Submission(may include documentation by the arbitrator).
viii) The arbitrator issues a decision (an award).
3. MEDIATION AS AN ADR METHOD
One of the method of resolving dispute is by a third party is brought in and he helps the parties to explore ways to settle there differences.
He propose solutions to the parties. Its always private and more confidential ; he may meet with parties separately. Its very economical, effective and ensures that disputes are resolved efficiently.
Matters can be resolved within hours and weeks.
Ways of mediating are:
I). Introduction,
ii). Statement of the problem.
iii). Gathering information and materials.
iv)identification of the problem,
v).bargaining and generating options and reaching a final agreement.
4. CONCILIATION AS AN ADR METHOD
A conciliator is appointed and he meets with the parties separately to resolve the dispute.It’s a very simple, effective and efficient means of resolving the dispute.
Its very similar to mediation.Parties to the dispute are allowed to communicate.The conciliator encourages them to explore means of resolving and also interprete details to them.
Ways of conciliation are :
i). Discussion between parties.
ii). Suggestion of possible ways to resolve the dispute.
iii).Questioning of the parties involved.
iv). The Conciliator discusses privately with the parties involved.
v).Parties agree to end with conciliator and a decision is made.
WHY ADR IS IMPORTANT FOR YOUR BUSINESS.
i). Small business/ should not be locked up in dispute with others for so long.
ii).No resources, budget and strategy to properly deal with conflict that may arise.
iii).Its in there best interest to avoid delay, expenses, uncertainty and complexity in resolving disputes.
Small businesses may avoid going to court if they :
– state in there agreement/contract that all dispute may be resolved first by one of the ADR methods.
– state that parties may only resolve to litigation if the other means of resolving dispute wasn’t successful.
In conclusion, Research has shown that Nigerian Courts are congested with unresolved dispute. Delays are inevitable and improper adjudication is the order of the day.
The Judiciary are now involved in ADR and they place utmost importance on ensuring that parties have tried settling through ADR before coming to court.
The ADR methods are necessary for entrepreneurs/start ups. Resources (Money and Time) should be channeled into expanding there business rather than resolving dispute.
