TIME TO EMBRACE THE ADR MECHANISM   

With all its drawbacks, ADR is timely, less expensive and efficient

The call that Nigerians should be more disposed to alternative dispute resolution instruments was recently re-echoed by stakeholders at a session organised by the Business Recovery and Insolvency Practitioners Association of Nigeria (BRIPAN). “Before applications are made to the courts for endorsement of restructuring tools such as schemes of arrangement, voluntary arrangements or administration, parties guided by insolvency practitioners should explore mediation,” said Justice Onyekachi Otisi of the Court of Appeal who urged Nigerians to embrace the Alternative Dispute Resolution (ADR) mechanism, especially in cases involving insolvency. “This would ease tensions, minimise prolonged litigation, and ensure more efficient outcomes.”

While the Companies and Allied Matters Act (CAMA) 2020 provides a robust legal framework for insolvency, procedural weaknesses continue to slow resolutions, hence the call for ADR. But this is a challenge that goes beyond the issue of CAMA. Indeed, as we have repeatedly argued on this page, it was the fascination by the manner disputes were amicably resolved by African people through mediation and arbitration during the colonial era that made the British authorities to integrate the ADR into their legal system. This is the time for a reconsideration of the idea that served African people well in the past and could be the game

-changer in justice administration in the country. While many former Chief Justices of Nigeria and prominent lawyers, including former Vice President Yemi Osinbajo have advocated the need to embrace ADR, the main challenge is to address whatever impediments there may be in its implementation and get Nigerians to buy into it.

The efficacy of the ADR should not come as a surprise to anyone ‎in the country who has had a bitter experience while trying to get the courts to determine their case. In a milieu where a case could take up to 30 years to conclude, going through the court system is not only time consuming but also expensive. Besides, corruption within the judicial system has almost rendered useless the basic tenets of rule of law as courts of coordinate jurisdiction render different opinions on similar facts. With that, they make a mockery of the pillar upon which the operational British legal system was built. Those who rely on ADR to resolve their disagreements are likely to spend less money compared to those who choose the adversarial court system. ADR is also convenient to use as it allows parties and their witnesses to take their time. It may dispense with oral hearings and rely only on documents. Apart from being convenient, it is also flexible; much unlike litigation, which is very rigid.

Perhaps the most compelling argument for ADR is that it is most suitable for our environment. Being conciliatory in nature, parties are not likely to become enemies after their disagreement has been resolved. When three arbitrators render an opinion on a dispute, their decision is likely to be correct and should ordinarily enjoy more acceptability than the decision of a judge. Again, because ADR takes advantage of modern technology in resolving disputes, it is more precise, efficient, and fast. Today, judges spend long time in determining cases to the detriment of the rule of law in the country.

However, despite the foregoing, many people remain sceptical of the efficacy of ADR, hence the preference for taking matters to court.  Enforcement is perhaps the biggest challenge. Since it is not yet institutionalised, there is always the possibility that those who get unfavourable verdicts in arbitration could resort to the regular court thus making the entire exercise a waste of time. Yet, all factors considered, we subscribe to the growing position that under our current circumstance, mediation and arbitration may help in the amicable resolution of judicial conflicts in the country.