ABSTRACT

This  study presents a detailed and critical review of the alternative dispute resolution as a non judicial mechanism for the settlement of environmental disputes in the Nigeria Delta region of Nigeria ordinarily, disputes whether environmental or otherwise are resolved through court processes, but due to delays costs publicity and technicality associated with litigation, alternative dispute resolution (ADR) mechanisms evolved. There are several bitter complaints from the victims of pollution in the Niger Delta region that the courts conventionally the last hope of the common man, have not lived up to expectations in environmental litigations thereby justifying their recourse to ADR as a better option. A significant number of environmental cases were lost on flimsy reasons. Today, ADR procedures are considered imperative worldwide, and are used by a wide range of courts, tribunals, organizations and victims of pollution in Nigeria as tools for overcoming environmental impasse, improving the efficiency of difficult negotiations, and achieving durable settlements. It takes different forms as arbitration, mediation, conciliation, negotiation, among other, the detailed discussion of these forms, and their advantages vis-a-vis the courts processes will facilitate an informed appreciation of the use of ADR in the environmental disputes settlement.

CHAPTER ONE

INTRODUCTION

1.1       Background of Study

Disputes are generally an inevitable part of human interaction; they may be domestic, international, civil, commercial or economic in nature. Litigation has the traditional method of dispute resolution.[1] Because conflicts are an integral part of human interaction, one must learn to manage them, to deal with them in a way that will prevent escalation and destruction, and come up with innovative and creative ideas to resolve them.

Over the years, litigation in Nigeria has been troubled by the issues and factors affecting it all round the common law world, where we inherited our legal system. The complaint now is that litigation is not confidential, too expensive, time consuming and sometimes complex, making the attainment of justice strenuous and causing delay in resolution of disputes among disputants. Eventually, not all cases of dispute can be resolved by litigation and in the context of resolution, resolution with extreme efficiency.

The concept of ADR can be said to pour oil on troubled waters as relating to wide varieties of disputes brought to its grasp. Settling disputes undoubtedly goes beyond justice but also consideration has to make on the effect of such decision on the relationship between parties which ADR has always strived to uphold. With the spread of ADR programs in the developed and developing world, creative uses for and designs of ADR systems are proliferating. Successful programs are improving the lives of individuals and meeting broad societal goals. There is a critical mass of ADR experience, revealing important lessons as to when, and how to implement ADR projects.

1.2       Statement of the Problem

The concept of alternative dispute resolution however broad its contributions to settling disputes in the Nigerian legal system still seems new and unheard of to many prospective litigants.

            The unpopularity of alternative dispute resolution is facilitated by the popularity of the normal court proceedings. Many prospective litigants are not also aware of the benefits of settling disputes through alternative dispute resolution rather than through litigation. It is the scenario of an unenlightened disputant and the unpopularity of the concept of alternative dispute resolution that necessitated this research work.

1.3       Objectives of the Study

The objectives of this study include the following:

The umbrella term ADR includes various procedures such as negotiation, mediation (one most common form) conciliation and expat determination which involve adjudication and dispute review boards.

(i)  Negotiation: Negotiation as a method of dispute resolution refers to talks between conflicting parties who discuss ideas, information and options in order to reach mutually acceptable agreements.

Interest-based negotiation

Right-based negotiation

Power-based negotiation

(ii)  Mediation: This is usually well known and most frequently used form of ADR. Mediation is a form of neutrally assisted negotiation. In a typical mediation, the mediation will discuss the problem with the parties, both together in open forum, and separately in private sessions.

(iii)  Conciliation: This is very similar to mediation in its procedures and first states and in the lateral thinking and about possible solutions which a conciliator tries to ensender. A conciliation assist parties by helping to establish communication clarifying misperception  dealing with strong emotions and building the trust necessary for co-operative problems solving.

(iv)  Arbitration: Arbitration is a much more formulized method of ADR. In order to make use of arbitration, there will almost always to be an arbitration clause within a contract that both parties would have agree to.

1.4       Purpose of the Study

This research work strives at attaining the under-listed objectives, they are:

a.     To enlighten the public on the less-known benefits of ADR.

b.     To spear-head the study and usage of ADR.

c.     To assess the effectiveness of ADR in handling disputes in Nigeria.

d.     To remedy the issues arising from delay in justice and enable a better and   efficient justice system.

1.5       Scope and Limitation of the Study

The scope of this research work is basically directed at the concept of ADR, its contribution and applicability in settling disputes in Nigeria. However, references may be made to other countries and organisations if and when need arises. This is as a result of ADR being a universal and enormous concept.

1.6       Research Methodology

Secondary sources are predominant in the research work. This research work is purely library-based, drawing secondary data from textbooks, law journals, law reports, newspapers, the constitution and the internet.

1.7       Chapterisation

This study is organized into five chapters. Chapter one contains the background of the study which recognizes methodological issues involved in the research and literature review.Chapter two deals with the Nigerian traditional and judicial dispute resolution system, contrasting the Nigerian dispute resolution system and the British adversarial system. Chapter three encompasses the concept of alternative dispute resolution, its meaning, suitability, and legal framework. The justifications and criticisms of alternative dispute resolution. It also looks at the nature and limitations of ADR. It sheds light on various means/methods under ADR: negotiation, mediation, conciliation, arbitration and other hybrid processes. It takes a critical look at consensus building and the multi-door court house as relates to the concept of ADR.In chapter four, ADR and few parts of the society are looked at which includes: lawyers, the common man, and the government.

Chapter five of the study features the summary, conclusion and recommendations accordingly.

1.8       Significant of the Study

Significant of the study is to encourage and assist legal researchers interested in seeking answers to pressing questions in the field of dispute resolution through the use of empirical research methods. Such research is a very different undertaking and experience for legal academics like myself who are accustomed to bringing order to unruly judgments in the privacy of their offices. Survey research for instance is a very public and collaborative exercise calling for patience, more patience, tact and cunning. In this paper I will describe some of the methodology and informal practices which lie behind this type of research in the hope that others may gain confidence to pursue their own empirical inquiries in the field of dispute resolution.

1.9       Research Questions

1.                  What are the limitations of ADR in Nigeria?

2.                  In what ways can litigation be said to inadequate?

3.                  What is the effectiveness of ADR in handling disputes in Nigeria over litigation?

4.                  Why is ADR criticized?

5.                  What is the justification of employing means of ADR?

6.                  Can both ADR and litigation work together to attain justice?

1.10     Definition of Concepts

Alternative Dispute Resolution: Also known as ‘ADR’. This can be said to be methods by which legal conflicts and disputes are resolved.

Litigation: This is the process of taking a case to a court of law so that a judgement can be made.

Litigant: A person involved in a suit, which is either suing another person or is being sued by another person.

Dispute: A disagreement especially an official one.

1.11     Literature Review

In the course of my research it was discovered that this research topic is one that has crossed so much thought and concern to contemporary legal studies and as such thought and concern to contemporary legal studies and as such scholars in an attempt to clarify and study this concept of ADR, write down a lot of thesis, journals and articles.

This research work finds its foundation in works of intellectual legal scholars and their contributions in textbooks, articles in journals and on the internet. In regards to the fast growing popularity of ADR, Hon. Justice Rose Ukeje[2] views ADR as a promise to the bench rather than a threat to it based on ADR options having always been in use in African traditional setting being dated back to the pure African society. There can also be seen complementary roles of ADR and litigation.

Lytton, Timothy and Centeno Rivas, Salvador improvement of access to dispute resolution services in the absence of strong legal infrastructure and due to the social and political deterioration caused by civil war in labour, human rights, land title, property, personal, and political disputes. ADR techniques were least successful in actually realizing conflict resolution goals for the public because of the weakness of legal infrastructure, inadequate laws, and insufficient numbers of trained ADR practitioners.

Marques Juan held that lowering of costs, diminishing of delays and alleviation of congestion in the courts, and to act as a referral centre for certain disputes in civil and criminal cases.

Both Aristotle (384-322 B.C.) and Cicero (106-43 B.C.) commented favourably on arbitration in words that certainly could be used to describe modern arbitration. They made clear that arbitration was an alternative to the courts. Aristotle said arbitration was introduced to “give equity its due weight, making possible a larger assessment of fairness” (Aristotle). Cicero said a trial is “exact, clear-cut, and explicit, whereas arbitration is mild and moderate” (Cicero). He added that a person going to court expects to win or lose; a person going to arbitration expects not to get everything but not to lose everything either.

Kelvin N. Nwose[3] holds strong that the ADR concept is not alien to our judicial system; rather the alien concept is litigation which was imported. He also says it is mere repackaging and re-introduction of the concept that has always been part of our custom.

Tinuade Oyekunle[4] is of the opinion that the quest for ADR is undoubtedly to attain justice without having to pass through the cumbersome court procedures and its high costs and delays. Kassebaum, Gene holds that ADR reduces the caseload on courts, reduce costs and increase speed of resolution of cases; increase access to and equality of justice for ordinary people, especially for personal injury cases involving vehicles, protect the weak from unnecessary litigation in personal injury cases (especially pedestrian vehicle), and in some criminal and civil cases.

A French philosopher, Voltaire stated: “I was ruined but twice when I won a lawsuit and once when I lost one”[5]. His rationale being that you may win your lawsuit and only to lose on terms of finance, wasted time ad frustration.

In discredit to litigation, Hakeem Ijaiya[6], opined that litigation hardly pays as attention to the social relationship of disputing parties prior to litigation not resolving the initial dispute. Thus, the dispute remains in its original state. Bitterness, frustration, estrangement were some shortcomings hr found for litigation.

USAID states firmly that to overcome the problems associated with the formal, adjudicated legal system, especially: delay; high cost; the incomprehensibility of the legal system to many people ;and the unsuitability of adjudication for the resolution of minor disputes, especially because they are adversarial and focus on blame and punishment, rather than on preserving or restoring long-term relationships.

The authors note that ADR is especially applicable to so called “minor disputes” (e.g., family and community disputes) also sometimes labour, commercial, and construction industry disputes are also discussed. Moore, Christopher and Santos, Mas Achmad critically states it is most successful in introducing mediation as a culturally relevant alternative/complement to litigation, and in introducing the idea of institutionalizing mediation and dispute resolution systems design. It was least successful in improving relationships, increasing enforcement, overcoming perception of impartiality, and implementation/monitoring of agreements due to failure to include local government parties, cultural factors including rank and social status that frustrated mediation, government officials as mediators with interest in the outcome, failure to effect enforcement measures against non-compliant parties due to judicial system, confusion regarding the end result (appeasement v. decision-making).

Concerning the complementary role of ADR on litigation, Sheriff Stone[7] presents mediation as a necessary complement to litigation in practices and not as replacement to it. Clarke, Stevens H.; Ellen, Elizabeth D.; McCormick, Kelly.1995Most successful inincreasing litigants’ satisfaction with the process, thanks to the perception that the conferences were the best way to handle cases like theirs. It was least successful inreducing the court workload in terms of the numbers of motions processed by judges and orders issued by judges or clerks. It was not successful in increasing the settlement rate beyond a 41-50% and in reducing the time spent at the meetings, due to presumably too little participation of the parties and not enough case management.

In a contrary views, as regards to ADR in Nigeria, Idorngie[8] opines that commercial arbitration has not assumed its rightful position do not appreciate its importance, benefits and relevance. He supported further emphasizing the need for ADR to be made known and awareness created through educating the general public on its significance and benefits.

[1]Traditional Litigation v. Alternative Dispute Resolution, Carla de Romano Bus. Law,  S. 31 October 3 2011, Professor Gray

[2] Rose U, ‘Alternative Dispute Resolution and the Bench: A Threat or a Promise?’ (A paper presented at the ALL JUDGES ROUND TABLE 2006).

[3] E. Eneche, Multi-Door Court House in Nigeria: ‘Role of Traditional Rule and Commonwealth Leaders’ (2002). Cited in Kelvin N. Nwosu. ‘Dispute Resolution in the Palace, Legal Principles and Rules’ (Gold Press Ltd Ibadan, Nigeria, 2010) 26.

[4] R. Williams, ‘Alternative Dispute Resolution (ADR), Solution or Chimera’ (The Arbitrator, 1990)101.

[5]Ibid 104.

[6] H. Ijaiya ‘Alternative to Adjudication in Settlement in Matrimonial Disputes’ (2004) Vol. 1 No. 36.

[7]Marcus Stone, Representing Clients in Arbitration. (London) Better Worth (1998) 5-6,12.

[8]Idorngie, P. ‘Overview of Arbitration; ‘Law and Practice’ (paper delivered at the training workshop on ADR and arbitration for Judges in Nigeria. 2004) 6.