By Nosa Edo-Osagie, Esq.
Conflict is an integral part of of ociety. The resolution of same, one way or the other engenders peace in the society. The Conflict Resolution Mechanism is traceable to the Social Contract Theory, where Citizens surrendered their rights to Government for protection against any kind of brigandage in the then prior Hobessean State of Nature, were life according to Thomas Hobbes ,”Nasty, Brutish and Short”.
There are varied methods of conflict resolution aside litigation.
Litigation has turned out to be time consuming, leads to breeding of bad blood among litigants, some times from generation to generation.
We are all familiar with the most traditional dispute-resolution process of our civil justice system: litigation and trial with a judge deciding who is right or wrong – where someone wins and someone loses. However, there are many other options available. Negotiation, mediation and arbitration – often called ADR or alternative dispute resolution- are the most well-known.
Whether you are involved in a family or neighborhood dispute or a lawsuit involving millions of naira, these processes should be considered. They are often the more appropriate methods of dispute resolution and can result in a fair, just, reasonable answer for both you and the other party. Settlement and compromise have long been favored in the legal system.
The Process: You may negotiate directly with the other person. You may hire an lawyer to negotiate directly with the other side on your behalf. There are no specific procedures to follow – you can determine your own – but it works best if all parties agree to remain calm and not talk at the same time. Depending on your situation, you can negotiate in the board room of a big company, in an office in your own living room or even through telephone conversation. It is the most convenient and cost effective of all alternative dispute resolution mechanisms.
Negotiation allows you to participate directly in decisions that affect you. In the most successful negotiations, the needs of both parties are considered. A negotiated agreement can become a contract and be enforceable. It is actually a win-win Ssituation.
Most people negotiate every day. In some circumstances you may want the help of a lawyer to help you negotiate a fair deal.
Negotiation is the first method of choice for problem-solving and trying to reach a mutually acceptable agreement. If no agreement is reached, you consider other problem solving avenues. This process can be appropriately used at any stage of the conflict – before a lawsuit is filed, while a lawsuit is in progress, at the conclusion of a trial, even before or after an appeal is filed.
Characteristics of Negotiation
- Private and confidential
- Quick and inexpensive
- Informal and unstructured
- Parties control the process, make their own decisions and reach their own agreements (no third party decision maker)
- Negotiated agreements can be enforceable
- Can result in a win-win solution
Definition: Mediation is a voluntary process in which an impartial arbiter (the mediator) helps with communication and promotes reconciliation between the parties which will allow them to reach a mutually acceptable agreement. Mediation often is the next step if negotiation proves unsuccessful.
The Process: The mediator manages the process and helps facilitate negotiation between the parties. A mediator does not make a decision nor force an agreement. The parties directly participate and are responsible for negotiating their own settlement or agreement.
At the beginning of the mediation session, the mediator will describe the process and the ground rules. The parties or their lawyers have an opportunity to explain their view of the dispute. Mediation helps each side better understand the other’s point of view. Sometimes the mediator will meet separately with each side. Separate “caucusing” can help address emotional and factual issues as well as allow time for receiving legal advice from your attorney. Mediations are generally held in the office of the mediator or other agreed location.
Agreements can be creative. You could reach a solution that might not be available from a court of law. For example, if you owe someone money but don’t have the cash, rather than be sued and get a judgment against you, settlement options could include trading something you have for something the other wants. If an agreement is reached, it will generally be reduced to writing. Most people uphold a mediated agreement because they were a part of making it. It can become a contract and be enforceable. If there is no agreement, you have not lost any of your rights and you can pursue other options such as arbitration or going to trial.
When and How Mediation Is Used: When you and the other persons are unable to negotiate a resolution to your dispute by yourselves, you may seek the assistance of a mediator who will help you and the other party explore ways of resolving your differences. You may choose to go to mediation with or without a lawyer depending upon the type of problem you have. You may always consult with a lawyer prior to finalizing an agreement to be sure that you have made fully informed decisions and that all your rights are protected. Sometimes mediators will suggest that you do this. Mediation can be used in most conflicts ranging from disputes between consumers and merchants, landlords and tenants, employers and employees, family members in such areas as divorce, child custody and visitation rights, eldercare and probate as well as simple or complex business disputes or personal injury matters. Mediation can also be used at any stage of the conflict such as facilitating settlements of a pending lawsuit.
Lawyers and other professionals provide private mediation for a fee. If you have a Lawyer, you can work together to select a mediator of your choice.
The Process: Arbitration is typically an out-of-court method for resolving a dispute. The arbitrator controls the process, will listen to both sides and make a decision. Like a trial, only one side will prevail. Unlike a trial, appeal rights are limited.
In a more formal setting, the arbitrator will conduct a hearing where all of the parties present evidence through documents, exhibits and testimony. The parties may agree to, in some instances, establish their own procedure; or an administrating organization may provide procedures. There can be either one arbitrator or a panel of three arbitrators. An arbitration hearing is usually held in offices or other meeting rooms.
The result can be binding if all parties have previously agreed to be bound by the decision. In that case, the right to appeal the arbitrator’s decision is very limited. An arbitrator’s award can be reduced to judgment in a court and thus be enforceable. In non-binding arbitration, a decision may become final if all parties agree to accept it or it may serve to help you evaluate the case and be a starting point for settlement talks.
How and When Arbitration Is Used: A common use of arbitration is in the area of employment disputes and commercial and contractual transactions.
Many contracts have clauses which require that disputes arising out of that contract be arbitrated. You may have seen such a provision when you applied for a credit card or opened a retirement account or other account with a stock broker. You may want to explore using this process if you and the other side agree that the problem needs to have someone make a decision but you do not want the expense of going through the court process. If you agree to arbitrate or sign a contract with an arbitration clause, you should understand that the arbitrator may make the final decision and that you may be waiving your right to a trial in court.
In Nigeria, there is an official institution incorporated into the court system that takes care of all these Alternative Dispute Resolution Mechanisms. It is called the Multi-Door Court House or Settlement House.
The Atmosphere here is less official, more relaxed and devoid of the legalese of the Court System. It festers a friendly disposition between parties and encourages an amicable settlement of the issues that may accrue.