Day 4: Alternative Dispute Resolution

DAY 4: Alternative Dispute Resolution

DATE: March 7, 2024

MODERATOR(s): Marvel Essien and Iboro Akpan

SPEAKER: Beverly Agbakoba-Onyejianya

Biography of the speaker

Beverley is a Sports, Entertainment & Tech lawyer and creator of a skill and personal development platform called "Develop Your A Game." Beverley also runs the SET Growth Capsule, an in-house accelerator initiative of OAL.

She is an accredited Commercial Mediator/ Neutral with several renowned dispute resolution centres including the Lagos Multi Door Centre, the Lagos Court of Arbitration, FIFA and NDIC to name a few. She regularly mediates commercial matters in banking, media, sports, creative industry and tech to name a few. She also has years of experience in the banking and capital markets sectors in the United Kingdom and Nigeria.

Additionally, she is passionate about sports and youth development and founded the Lagos Tigers Football Club in 2012 and the Little Tigers Football Foundation in 2017 as well as a social network for women called Gratia Fidelis Caritas (GFC).

Types of Alternative Dispute Resolution 

Alternative Dispute Resolution, ADR, like the name implies, is an alternative for court cases. 

• Arbitration
• Conciliation
• Mediation
• Negotiation
• Expert determination

Arbitration

Arbitration is the most initiated method of ADR where parties to a dispute submit to a third party called an arbitral tribunal for the resolution of their dispute.

Arbitration is quite formal and properly structured similarly to the court system. One of the many benefits of arbitration is its large recognition in the legal world. Previously, the law that was applied was the Arbitration and Conciliation Act, 2004 it was an Act to provide a unified legal frame work for the fair and efficient settlement of commercial disputes by arbitration and conciliation. 

Recently, it was been eschewed for the Arbitration and Mediation Act, 2023 which has established a legal framework that enhances the transparency, speed, autonomy, and enforceability of arbitral awards and mediation settlement agreements.

There are certain issues that may not be taken for arbitration and it includes issues of divorce and criminal proceedings.

Conciliation 

Conciliation as an alternative dispute method which involves a neutral third party who can give an opinion or suggestion. It is a system of ADR where a third party known as the conciliator uses his best endeavours to bring the disputing parties to a voluntary settlement of their dispute.

It is a formal form of negotiation. For instance, if two parties sign an agreement, one party would allege that the other party breached the said agreement whereas the other may allege that there was a refusal to perform duties. Conciliation may be used to settle the dispute. Conciliation is often used in commercial disputes and negotiations where a third party actively suggests solutions to the parties.

Mediation

Mediation is an alternative dispute process in which a neutral and impartial third party called the mediator is invited by the disputing parties to facilitate the resolution of the dispute by the self-determined agreement of the disputants.

It's less formal and it's relatively easier than arbitration. The many benefits of mediation include the preservation of the relationships. The parties involved may decide to keep their matter out of court in order not to destroy their relationship by the rigourous process of the court and may choose to settle amicably.

Another benefit is the confidentiality of the proceedings. The occurrences during mediation are kept private and secret. Examples of a relationship that can be mediated include: a footballer and his club. A footballer who hasn't been paid his fees may choose to mediate with his club owner instead of taking him to court. 

For mediation to be relied upon easily, it must be stated as a clause in the contract signed by the two parties. Without this clause, it makes the reliance or the introduction of mediation more difficult. This clause is usually termed as Med-Arb clauses (Mediation-Arbitration clauses). It is a party driven process, meaning that the parties actively decide what happens next if there is a consensus or not.

Negotiation 

Negotiation is a problem-solving process in which the parties to a dispute or an imminent conflict voluntarily come together either personally or by their representatives, to discuss their differences and attempt to reach a joint decision or resolution of the conflict, without the involvement of a third party.

Expert determinations 

Expert determination is a private process involving an independent technical expert. They make a binding decision on technical rather than legal issues and have the power to ask questions of the parties before rendering their decision. For example: where Party A involves loss assessors in a dispute to calculate the total loss gotten from the damage of the pillars constructed by Party B.

Note:

It is important while drafting a matter that involves ADR, mostly arbitration, to state the venue where the matter will be presided over. It is also important to state the law of the mediation centre or institute that is used which may include the Lagos Multi Door court.

At the end of the dispute, usually in arbitration, an arbitrary award is given to the successful party. This award is binding and can be enforced even without authentication by the court. It is binding on the parties. The unsuccessful party may at some point try to institute the matter in court, this practice should be stopped and abolished. The court should not entertain such matters except on special grounds.