ADR: THE EMERGING FACE OF DISPUTE RESOLUTION WITHIN THE

AMBITS OF THE LAW

BY

Emmanuel Chukwunweike MONYEI

LAW1303910

FACULTY OF LAW
UNIVERSITY OF BENIN
BENIN CITY

JULY 2018

1
 ADR: THE EMERGING FACE OF DISPUTE RESOLUTION WITHIN THE
AMBITS OF THE LAW

BY

Emmanuel Chukwunweike MONYEI

LAW1303910

A LONG ESSAY WRITTEN IN THE FACULTY OF LAW AND SUBMITTED TO

THE FACULTY OF LAW IN PARTIAL FULFILLMENT OF THE
REQUIREMENTS FOR THE AWARD OF THE DEGREE OF BACHELOR OF
LAWS (LL.B) OF THE UNIVERSITY OF BENIN, BENIN CITY, NIGERIA.

JULY 2018

2
 CERTIFICATION

I, Emmanuel Chukwunweike MONYEI with matriculation number: LAW1303910 hereby

certify that this long essay was carried out by me. Apart from references to other authors’

works which have been duly acknowledged, the entire project work has neither in whole or in

part been submitted for another certificate elsewhere.

__________________________________
Emmanuel Chukwunweike MONYEI
LAW1303910

3
 APPROVAL

We the undersigned certify that the project was completed by EMMANUEL

CHUKWUNWEIKE MONYEI, with matriculation number LAW1303910 in partial

fulfilment of the requirements for the award of Bachelor of Laws Degree (LL.B)

_________________________ ____________________
BARR. A. E EDJEBA Date
(Project supervisor)

_________________________ ____________________
BARR D.T ACHI Date
(Project co-ordinator)

_________________________ ____________________
PROF. N. A. INEGBEDION Date
(Dean, Faculty of Law)

4
 DEDICATION

To Ay. For hopes untouched, but not unseen and not unknown. To you, because of my

unending belief in the impossible.

5
 ACKNOWLEDGEMENTS

In writing a tasking and time consuming work such as this, it does a lot of good to take all

necessary precautions to ensure that the ideas and arguments contained are lucidly expressed

and properly canvassed. There is the danger of looseness and over-simplification where this

is not properly done. In addition such a work as this which covers a wide arena of application

demands to a large extent sound and laudable authorities and a proper analysis. This is

because the subject of ADR: Alternative Dispute Resolution is one which though not fairly

recent demands solid and impenetrable support in order to give it a ‘push’ in taking a firm

place when it comes to the issue of dispute settlement in society. This work would not have

been possible without the help of some special and supportive people; I needed all the help I

could get. It is to my effervescent delight that I got all of their support and assistance. First,

to acknowledge God Almighty, the king, the giver of all life, the owner of all knowledge, the

very substance of loving kindness. To Him, in whom all good things subsist, my favourite

person in the world. Thanks for your ideas and your grace in those nights of gathering

research materials and tapping keypads for long hours. Also, to my doting and loving parents-

Barr. and Barr. Mrs Monyei, a thousand deserved thanks for your financial assistance,

prayers unceasing, love unending and continued understanding. Of immense help was my

father, who provided me with analytical projections on legal issues and gave me relevant

opportunities to converse on the formal and the informal justice system. He is the true legal

prophet. Special thanks to my mother for her support with relevant research materials. Of

special note were the Training Manual of the Institute of Chartered Mediators And

Conciliators (ICMC), Special Mediation Skills Accreditation And Certification Training For

Membership of the Institute, (Feb 26th- 1st March, 2018), Amasike, C.J’s. Arbitration &

Alternative Dispute Resolution in Africa, 2012. Also, thanks to the University of Benin,

Faculty of Law Library for the plethora of materials which were readily available and in good

6
measure. Of special note was Lovenheim, Peter’s Mediate don’t Litigate, How to Resolve

Disputes Quickly, Privately, and Inexpensively-Without Going to Court, 2004.

To my amiable brother and mentor, Barr. Emeka Monyei and his fiancé Barr. Siuwa

Edowande, a thousand thanks to you both for your support with relevant research materials.

Of special note was the article by Rhodes-Vivour, Doyin. The Agreement to Arbitrate- A

Primary tool for the Resolution of Maritime Disputes. I would also like to acknowledge the

help of my fatherly project supervisor, Barr Dr. Andrew Edjeba. Much gratitude for

providing the whole gamut of the process with a friendly atmosphere and assisting me with

very salient corrections. Your uncanny ability to spot the smallest mistakes which went to the

deepest part of the whole construction of this project work was beyond excellent. Much

gratitude goes to my eldest brother Engr. Chukwuka Monyei, your interest in the law and

your willingness to discuss on the most complex legal issues with ingenious insight, was

enough inspiration for me to go on with my project despite mounting difficulties. In fact,

irrespective of backing out of my first proposed topic for my project work, Brexit Amongst

others: Emerging trends in the international milieu- Legal Recommendations on the Brexit,

the level of interest you gave to my work spending long hours on regular phone calls was

more than enough encouragement to keep the topic in view for future consideration. I am

grateful to my sisters Chidinma and Pharm. Dr. Chinedu Ayo (and her husband Pharm Dr.

Abel Ayo).

Special thanks also goes to the entire Sui Generis class. To my friends Jessica Uwamusi,

Mine Oyibo, Ochuko Oyeghe, Daniella Debebs, Faith Oseghale, ‘Adoyin’ Maria Caleb

Ibizugbe, Michael Isokpehi, Jesutekevwe Pala, Raphael Irenen. To my group members in

International Humanitarian Law, you all inspire me. I have never worked with a better set of

people. My intellectual discourses with you went a long way in framing my ideas for this

project work. Same goes to the entire house of CU-NIFES (Christian Union- Nigerian

7
Fellowship Of Evangelical Students) and, to the entire community of the Christian Law

Students Fellowship of Nigerian (CLASFON) Thanks for warmth, honour and sincere love.

Of special note are Salvation Omole, Dorcas Soleye, Gina Ehimare, Ineose Adeleye, Loveth

‘Ruadjerat’, Oge Igbokwe, Favour Igbineweka, Obehi Amagbamwan, Israel Akhabue, Tejiri

‘Jigida’, Elvis Ogheneovo, Praise ‘Ikhaedunu’, Jeremiah Ikharona, Joseph Omoloye,

Harrison Ogiemwonyi, John Aisosa Rejoice, Nosa Osazuwa, Tseyi Jemide, Gabriel

‘Akpasubi’ and ‘Chioma VeePee’ (who I met quite recently but already occupies a very large

part of my heart) thank you all for sincere love and at one time or the other showing an

interest in my personal welfare and my progress with this project work. Special thanks to the

Nifes Christian Union Drama Unit (NICUDU). Your shouts of jubilation when I announced

that I was done with this project work are still ringing very loudly in my ears. I needed all

that moral support for serene stability. I got it in large measure.

Also, special thanks go to my senior colleague, Praise Abu my ‘little mother’ in the Faculty

of Law these past years. That we wrote on a similar topic without prior consideration, to me

makes our friendship a very special one. Thanks for your assistance with relevant materials

for guidance, coupled with all the materials you provided me with prior to this to assist me

with my schoolwork. A mere ‘thank you’ is not in any way enough. Gratitude to my closest

friends; Marvellous Giegbefumwen, Joshua Etsu, Omozuanbor Ogbamikhumi, Aileohi Ojo-

Esezobor, Isaac Otaigbe, Joan Nkem Ekeruche all of whom have provided me with all the

support and friendship I could have needed these past years, all of whom I have known for a

minimum of ten years. This could not have been possible without your moral, spiritual and

financial support. Special thanks also go to Jonathan Jr. Aifuwa. Thank you for your

unending words of encouragement and your prayers.

To my mentor in the faculty of Law, Barr. Dr Gabriel Omo-Arishe who has been a father and

a friend, you are a lecturer that cannot be easily forgotten. Thank you for saying “yes” to my

8
mentorship request, an opportunity I did not use so well much to my chagrin. You will not be

forgotten.

To those not specifically named, but were of immense help to the success of this project

work, and to my gradual development up to this present stage God alone can truly reward you

for your help and support. I am eternally grateful.

9
 TABLE OF CASES

Ali v Lane EWCA Civ 1532, [2007] 2 EG 12638 80

Avery v Scott (1855) 5 HL Cas 811 35

Barker v. Johnson [1999] E.W.C.A. (Civil Division) (March 25, 1999) 80

Cable & Wireless Plc. v. IBM United Kingdom Ltd (2002) EWHC 2059 (Comm.) 45

Colvi v. Interdica 31 YBCA (2004) 593 49

Cottonex Anstalt v Patriot Spinning Mills Ltd (2014) EWHC 236 (Comm.). 51

David Kayondo v. Co-operative Bank Supreme (1993) Civil Suit No. 899 UGHC 60

Dunnett v. Railtrack Plc. (2002) 2 All ER 850 45

Keith v. Levi (C.C) 2 Fed. 745 2

Macmillan Williams v. Range (2004) EWCA Civ 294 19

Microsoft Corp. v. Commission of the European Communities (2007) Case T-201/04 15

Mme X v. Private Bank Edmond de Rothschild Europe No 11-26.022 (2012) 52

Northern Pacific Railroad Co. v. Clark 153 U.S. 252 (1894) 2

Pennock v. Hodgson (2010) EWCA Civ 873 27

Pirelli & C. v. Licensing Projects SpA 452 C

52

Pitt Gas Co. v. Borough of Sewickley 198 Pa. 201, 47 Atl. 957 2

R v Turner [1970] 2 All ER 281 137

Raguz v Sullivan (2000) NSWCA 240 36

Re Trepca Mines (No 2) (1963) 51

Santobello v New York 404 US 257 137

Sebastian International Inc. v. Common Market Cosmetics (2010) NV, R.W 49

10
Semayne’s Case (1604) 77 All ER 194. 80

Slaven v. Wheeler 58 Tex.25 2

Smith v. Kvaerner Cementation Foundations Ltd. (2006) 50

The Director of Public Prosecutions v Tribert Ayabatwa and Six Others S.C.Z Judgement
No. 27 of 1987 [1927] ZMSC 27 138

The Laker Airways case (2000) 1 WLR 113 50

Turner v. Builders Federal (1988) 2 MLJ 502 101

United States v. Microsoft Corporation (2001) 253 F.3d 34 14

Vahidi v. Fairstead House School Trust Ltd [2005] EWCA Civ 765 19

11
 TABLE OF STATUTES

Civil Procedure Act 1833, 3 & 4 Wim, 4, c 42.

Common Law Procedure Act 1854, 17 & 18 Vict, c 125.

English Arbitration Act section (c) 1996.

English Civil Procedure Rules, 1999, r.1.4.

Halsbury’s laws of England, 3rd Edition, Vol.2, 2.

High Court Laws of Lagos State, 2003 (as amended by High Court (Amendment Law)
2012.New York Convention.

Law Reform Commission Act 1975

UNCITRAL Model Law on International Commercial Arbitration

UNCITRAL Model Law on International Commercial Conciliation with Guide to Enactment

and Use 2002 (United Nations 2002).

12
 TABLE OF ABBREVIATIONS

ADR- Alternative Dispute Resolution

All ER- All England Reports

ASA- Advice Services Alliance

CCP- Code of Civil Procedure

Ch. - Chancery

Civ- Civil Division

CMC- Civil Mediation Council

CMC- Citizen’ Mediation Centre

DFID_ Department for International Development

Ed. – Edition

EC- European Commission

EU- European Union

EWCA- England and Wales Court of Appeal

Fed. – Federal

FIDIC- International Federation of Consulting Engineers

Ibid- Ibidem (in the same place)

ICC- International Chamber of Commerce

ICSID- International Centre for Settlement of Investment Disputes

LMAA- London Maritime Arbitrators Association

LRC- Law Reports of the Commission

NADRAC- National Alternative Dispute Resolution Advisory Council

13
NSWLR- New South Wales Law Report

OPC- Office of Public Diplomacy

OHADA- Organisation pour l’harmonisation en Afrique du droit des affaires” (Organisation

for the Harmonisation of Corporate Law in Africa)

UN- United Nations

UNCITRAL- United Nations Commission on International Trade Law

UNCTAD- United Nations on Trade and Development

U.S-United States

UNISDR- United Nations International Strategy for Disaster Reduction

Vol- Volume

14
 TABLE OF CONTENTS

Cover page i

Title page ii

Certification iii

Approval iv

Dedication v

Acknowledgements vi

Table of Cases x

Table of Statutes xii

Table of Abbreviations xiii

Table of Contents xv

Abstract xvii

CHAPTER ONE: INTRODUCTION

1.1 Historical background of ADR 3

1.2 Contemporary features of ADR 15

1.3 Areas of ADR use 18

1.4 Emerging socio-legal necessity of ADR 30

CHAPTER TWO: THE TOOL OF ARBITRATION IN ADR

2.1 Arbitration as a conceptual derivative tool of ADR: The tale of the vicar and

the vexed witness 41

2.2 Legal framework of Arbitration 44

2.3 Contemporary features of Arbitration 53

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2.4 Arbitration from an African perspective 55

2.5 International provisions and applications of Arbitration 62

CHAPTER THREE: THE TOOL OF MEDIATION AND CONCILIATION IN ADR

3.1 Mediation and Conciliation as ADR tools: The tale of the neutral village

between twin cities 67

3.2 Legal framework of Mediation and Conciliation 71

3.3 Contemporary features of mediation and conciliation 75

3.4 Application of mediation and conciliation 78

3.5 Mediation and conciliation: A distinction without a basic difference 81

3.6 Mediation and conciliation in Lagos: How effective? 86

3.7 Is there an international angle to mediation? 90

CHAPTER FOUR: SKILLS AND BASIC REQUIREMENTS OF A MEDIATOR AND

ARBITRATOR

4.1 Training and qualifications of a mediator and arbitrator 96

4.2 Personality traits: Modifying of negative personality traits 113

4.3 Initiating the process of mediation and arbitration 117

4.4 Post-arbitration and post-mediation: Payments, binding and non-binding decisions,

appeals, and others 128
Merits and demerits of ADR

CHAPTER FIVE: CONCLUSION AND RECOMMENDATIONS ON THE SUBJECT

OF ADR

5.1 Conclusion 136

5.2 Recommendations 139

Bibliography 146

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 ABSTRACT

In this constantly evolving and excessively fast-paced world, where the pursuit for
acquisition of wealth and the rush for survival is the utmost, the inevitability of conflicts is
certified. This is also heightened by proof that resources are becoming scarcer for survival
and population is on the increase. Statistics from both competitive and economic law show
that society is at a loss as to how to regulate the correlative increase in conflicts as a result of
these problems. This work offers simple solutions and argues that society must henceforth
look to more efficient methods to settle disputes as they arise. The project titled ADR: THE
EMERGING FACE OF DISPUTE RESOLUTION WITHIN THE AMBITS OF THE LAW
is an essential work of socio-legal analysis stemming from conventional necessities in the
complex contemporary developments within the legal system. The term ADR means
Alternative Dispute Resolution. The work is evinced from a critical look at the inefficiency
of litigation as the mainstream of dispute resolution adopted overtime by laymen and the
learned. By laymen because it has become the norm as presented to the general society by the
legal system as a compendium for settling disputes within society, when indeed such
preservation is aimed at protecting the subtle interest of the noble profession: its self-reposed
nobility. By the learned, because of the thrill that comes with the system of advocacy; the
purport of proving strength in oratory in adversarial disputes .The knack for deriving some
semblance of learnedness by use of legal terminologies, that is aimed at producing effusive
awe from the general public. Presenting the legal system and the lawyer as enigmatic ‘aids’
for dispute resolution; a far cry from the realistic aim of the legal system which is basically
simplistic. The aim of the legal system in any society is the efficient settlement of disputes
within the society to preserve law, order and ensure peaceful co-existence.

The analysis and arguments presented are different from other works on Alternative Dispute
Resolution. The historical basis for the existence of ADR is traced from its conception to its
entrenchment in contemporary society, though it has always been an existing social
regulation. The work offers further means for a continued legal entrenchment and
enhancement of ADR providing methods for fine-tuned embellishments, after recognising the
flaws garnered by it on its historical journey to present status claims. The project work offers
a simplicity that is advantageous to teachers in the legal profession, judges interested in ADR,
parties to disputes interested in settlement by ADR methods, the general society and students

17
alike. The work is very important because instead of focusing on a single ADR tool such as
arbitration or mediation it provides a comprehensive view of the three major tools of ADR-
conciliation, mediation and arbitration. It goes further to show how the separation of ADR
into the two tools of conciliation and mediation as neutral negotiation tools is merely a
distinction without a difference. Like the separation of basic colours such as blue and red into
stratified strait laces poses a distinction without an inherent difference. The analysis
presented therefore supports legal provisions that do away with this complexity and
recognises their interchange ability. The work does not also fail to look at these tools from
their international perspective and application. The writer is qualified to engage in this legal
discourse even up to an international extent been a qualified and excellent student of
international disciplines such as International Law, International Trade Law and International
Humanitarian Law.

In view of the above, the work is presented in such a way that it takes on an analysis of ADR
in series of segmented strata such as a local approach(using Lagos as a basis for case study,
with proper focus placed on its Citizens’ Mediation Centre),a comparative analytical
approach to ADR(using countries in Africa as a case study, attending to the argument as to
the invalidity of the position that supports the historical conceptualization of ADR from
Africa alone, and showing the growth of ADR in South Africa and Uganda and how other
African countries especially Nigeria can learn from these countries),and an international
parameter(recognising how the International Chamber of Commerce and other relevant
international bodies recognise the place of ADR, and the solution of ADR as a means of
settling hostilities between nations ). The work which contains a plethora of legal and non-
legal authorities does not go outside the purport of a legal framework, considering the
plethora of legal authorities and arguments considered in it. The aim of the work is to help the
reader understand how the process of litigation has failed to meet the sociological aim of the
legal system, and how the legal system must of necessity make room for and provisions
concerning an already booming alternative entrenched in unconscious social relations but
recognised around learned circles as Alternative Dispute Resolution (ADR).

18
 CHAPTER ONE

INTRODUCTION

‘’In the long history of mankind those who learned to collaborate

and improvise most effectively have prevailed.”
-Charles Darwin

The contemporary demystification of ADR1 is aided by tracing it back through history. In

order to understand the workings of alternative dispute resolution systems, it is trite to take a

look at the development of society and the origin of conflicts therefrom, flowing from the

formation of society. By taking long dips down the annals of societal development and

understanding the issue of conflict in ancient societies, one can understand the role of dispute

resolution in history. It is important first to note that following the development of compact

groups of societies over time by the formulation of social relations, it was inevitable that

conflicts would of necessity arise.

The term conflict in its etymological derivation comes from the Latin verb, confligere. It

literally refers to confrontation between individuals or a group resulting from opposite or

1
ADR here means Alternative Dispute Resolution. To some it means Appropriate Dispute Resolution
and to some others it means African Dispute Resolution. There are some eminent authors who argue
that dispute resolution methods originated from Africa. In its modern conceptualisation it means
alternative methods to formal court hearings, trials and formal legal proceedings. Although it is now
dated from the late 1970’s as a social and legal reform movement in the United States (from the
1976 Pound Conference on the Causes of Public Dissatisfaction with the Administration of Justice),
which called for more efficient methods and forms of dispute resolution for different kinds of
matters, it is really thousands of years old. More of this information is contained at
:http://voelkerrechtsblog.org/the- history- and-development-of-a-dr-alternativeappropriate-dispute-
resolution/. Last accessed 3rd July, 2018.

19
incompatible ends or means.2 According to the Black’s Law Dictionary3, a dispute on the

other hand is “a conflict or controversy; a conflict of claims or rights; an assertion of a right,

claim, or demand on one side, met by contrary claims or allegations on the other”. 4 The terms

dispute and conflict are interchangeable within the context of this work. Conflicts are bound

to arise during social relations. One of the functions of government in every society is to

manage conflict as they arise. In the magnum opuses of Rousseau and Smith, known as The

Social Contract and The Wealth of Nations, respectively they did not exactly develop or

identify a concept of conflict.5 Hobbes posits that, while mankind is by nature generally

selfish and would, if left to his own devices, act as if he had a right to everything he wanted;

the best scenario for everyone would be for everyone to cooperate with one another for the

common good. But according to him doing so would require some form of contract, a social

contract where each person forfeits some of their liberties in exchange for something else.

For example then according to him, I agree to not kill or steal from you if you agree to do the

same for me (the benefit that we receive in return is safety and peace of mind). However,

because everyone’s primary motive is selfishness (as Hobbes thinks); such a contract will

inevitably be broken unless it is somehow enforced. (Contracts or agreements without any

insurance against betrayal would never go well). In light of Hobbes’ hypothesis, when

contracts between individuals are broken which results in conflict, the next issue would be

the best way to resolve that conflict and enforce such contract between the adverse parties. In

ancient times the simplest method, which was thoroughly efficient for resolving conflicts is

what is today known as Alternative Dispute Resolution.

2
Schmid, AP (1998): Theasarus and Glossary of Early Warning and Conflict Prevention Terms,
Erasmus University; Synthesis Foundation 12.

3
Black’s Law Dictionary, 9th Edition.
4
Slaven v. Wheeler, 58 Tex.25; Keith v. Levi (C. C.) 2 Fed. 745; Ft. Pitt Gas Co. v. Borough of
Sewickley, 198 Pa.201, 47 Atl. 957; Northern Pacific Railroad Co. v. Clark, 92 Fed. 968, 35 C. C. A.
120.
5
Leung Man Fung, Conflict, Contract and Society, Quantitative Finance and Risk Management Science,
Lee Woo Sing College (2015), 1.

20
 1.1 HISTORICAL BACKGROUND OF ADR

The Roots of ADR

According to historical evidence, back then in Ancient Greece, civil disputes were required to

be submitted to arbitration before the jurisdiction of courts would be enlivened. 6Also from

the 7th to 1st century B.C., arbitration was been to a large extent used by Greek city-states to

settle border disputes.7 A treaty of peace for a period of fifty years between Sparta and Argos,

dated 418 BC, had the following clause contained in it: “If there should arise a difference

between any of the towns of the Peloponnesus or beyond, either as to frontiers or any other

object, there shall be an arbitration. If among the allied towns they are not able to come to an

agreement the dispute will be brought before a neutral town chosen by common agreement”

Similar clauses have been discovered in the ancient practices of the Hittites, the Persians and

the Aztecs. These all had similar properties of alternative dispute resolution contained in

them. This concept is also recorded in biblical writings such as in the Proverbs of Solomon:

‘’what you have seen with your eyes do not bring hastily to court, for what will you do in the

end if your neighbour puts you to shame.”8

6
Stanley Mosk, “Arbitration Versus Litigation” (Speech delivered at the Conference on Arbitration,
Los Angeles, 14 November 1952). Judge Stanley Mosk in his speech made a very important
observation. He said ‘‘Most of us have considered arbitration to be a new device for the settlement of
disputes, a gimmick…the mad age of hot rods and cold wars. However, some legal historians like
William Seagle, in his The History of Law, suggest that arbitration actually may have been the origin of
courts. The theory is that disputants first voluntarily submitted their quarrels to arbitration, and when
this procedure had become sufficiently regular, were compelled to do so; that at this point the court,
which thus developed out of arbitration, came into existence.’’
7
Robert McDougall, Courts and ADR: A Symbiotic Relationship, Paper delivered at the LEADR &
IAMA Conference on 7 September 2015, Sydney, NSW.
8
Holy Bible (Hachette, United Kingdom, 2011), Proverbs 25:7-8.

21
 Similarly, in the New Testament, the Apostle Matthew exhorts: “come to terms quickly with

your accuser while you are going with him to court, lest your accuser hand you over to the

judge, and the judge to the guard, and you be put in prison.”9

In the middle Ages, the prime example of ADR is to be found in the trade fairs held annually

at fixed seasons in Western Europe. According to sources from historical evidence, what

happened was that at those fairs, travelling merchants who had grievances with one another

would not go to the Royal Courts of Law, or even to the local customary courts, but instead

sought recourse from a panel of four or five merchants chosen from those attending the fair.

This was not in any way seen as the slightest bit strange by the merchants who frequented the

fairs, antithetically, it was precisely what they asked for and what was most comfortable for

their circumstance-“prompt justice dispensed by fellow merchants familiar with the everyday

problems of the market-place.”10

As time went on the concept of ADR took a new shape. Precisely, in the 14 th century,

England along with other nations, witnessed the emergence of a new form of trade

association known as the guild. Guilds were characterised essentially of people practising

particular trades in particular towns, who banded together to share the ‘arts’ or ‘mysteries’ of

their crafts, as well as to seek to improve their position collectively in society. Guilds were

created to advance common goods for society 11 It is recorded that they also had their own

9
Ibid, Matthew 5:25. The Bible and the Christian life is one that is much akin to systems of ADR which
emphasise peace and reconciliation. 1 Corinthians suggests very early knowledge of ADR as an
alternative to war: ‘’in the obscurity of older time a desire would arise to replace armed combat by
arbitration. Matthew 18 speaks of forgiveness and peaceful reconciliation. In numerous other places too
the Bible speaks of peacefully working to avoid using the court or violence to resolve disputes. In
ancient times the parish or priest often served as mediator and arbitrator on an array of issues involving
his parishioners. The popes themselves also often stepped into negotiations.
10
Ninian Stephen, ‘Yf by Theyr Good Dyscretions” (1991) 26 (7) Australian Law News 42.
11
Der-Yuan Yang, The Evolution of Craftsmen Guilds: A Coordination Perspective (Revised January
2008), 1. It was said and it should be noted in this paper that there were many variations in the structure
and functions of guilds across regions (Gelderblom and Grafe, 2007).

22
internal dispute resolution processes. Sir Ninian Stephen in his excellent history of arbitration

cites the example of the Clothworkers Guild in London, which had a dispute resolution

system recorded in the ‘Ordynaunce for Controversies to be Decyded by the Master

Wardenes and Assistauntes’. This was written five centuries ago and the language used is

enough evidence of its validity as to the time period:

Yf any dyscorde stryfe or debate at any tyme hereafter shall fortune to

happen for any cause or matter whatsoever it be betwyxte one householder
and an other…of the sayde Company or Fellowshippe…[t]hat then the
sayde parties befor they move or attempte by course of lawe any suite
betweene them or one agaynste the other in that behalf shall firste shewe
theyr matter and cause of theyr greefe with the circumstuances of the same
to the Master and Wardenes of the saide arte or mystery of Clotheworkers…
to thintente yf bt theyr good dyscretions some quiet order and good ende
may be taken therein to the satisfaction of such parties and by their assent
according to righte and equitie in eschewing of further trouble and suite of
law.
There have been other scholarly attempts to identify the history and origin or application of

ADR in ancient times. Below is a story which best illustrates how man first understood or

applied what is in contemporary times seen as ADR.

The Deciding stone to the European Law Merchant12

Two merchants glare at each other. Long-haired and bearded, their fur garments oily from

use, they hold gnarled clubs loosely at their sides. Emotions have been building since the

rainy season started and the river overflowed. Who will be forced to brave the swollen river

to hunt, and who will hunt near their village? Today it will be decided. With war cries, the

disputants raise their clubs and begin to circle. Suddenly an old man appears, shouting:

“Behold, the Deciding stone!” The two men stop in midstride. The old man says, “Ush, the

smooth side is yours; Ore, the rough side is yours.” The pair hesitates, looking angrily at

each other and at the old man, and finally they nod in agreement. With all his might, the old

12
Jerome Barrett, Joseph Barrett and Josey Bass, US, A History of Alternative Dispute Resolution: The
Story of a Political, Cultural and Social Movement (2004), 1.

23
man throws the stone into the air. Their heads turn to the sky as they watch the stone turn

over and over

ADR in some Traditional Societies

To further aid our quest to trace the roots of ADR, we can turn to anthropological and

sociological studies of traditional societies for a glimpse of some of the ways early humans

may have resolved disputes without the use of fists, clubs, or poison arrows, or violence

generally. Many of these ways of resolving conflicts are starkly alien to our western way of

looking at the world. However, they have much to teach us about the utility of conflict in

airing the disagreements of everyday life and how to use them as opportunities to deepen

relationships and achieve lasting harmony.13

1. The Bushmen of Kalahari

Many have written extensively about the Bushmen of the Kalahari, including the learned

William Ury, who identified them as a traditional people whose sophisticated system for

resolving disputes in many ways puts modern society to shame. The Bushmen are hunter-

gatherers living in a large, arid plain in Namibia and Botswana. Despite the encroachment of

agrarian people, the Bushmen have largely stuck to their traditional ways of life, including a

way of settling disputes that avoids fighting and the courts.

The Bushmen are not in any way a passive people. Rivalries over mates, food, and land are

commonplace. However when disputes arise, they are slow to fight and quick to find others

who will intercede. Thus when two people have a dispute they bring people around to hear

both sides. If things get testy, some members of the tribe are appointed to hide the hunters’

13
Ibid, A History Of Alternative Dispute Resolution, 3. Other forms of ADR, especially arbitration was
present in many societies. Arbitration was a feature of the old Irish Brehon Law system. The Spanish
King Alfonso the Wise directed the use of arbitration.

24
poison arrows-an early form of gun control. It is worthy of note to take into consideration,

that they had an equivalent of what is today known as gun control in our modern society. 14 If

small-scale intervention, fails, the whole group is brought into the process. “When a serious

problem comes up,” (Ury 2000) “everyone sits down-all the men, all the women and they

talk, and they talk, and they talk.15 Each person has a chance to have his or her say. It may

take two or three days. This open and inclusive process continues until the dispute is literally

talked out”. The process involved here includes mediation and consensus building.

2. Hawaiian Islanders

The Hawaiian islanders of Polynesian ancestry also had their own traditional system for

resolving disputes amicably. The practice was known as ho’oponopono, and it involves a

family’s coming together to discuss interpersonal problems under the guidance of a leader.

The common translastion of the term is to ‘set things right’ on both a spiritual and

interpersonal level. The leader of the session is someone both sides look to with respect. The

leader plays the role of a mediator. In order to avoid hard feelings, all discussion is directed

towards the leader rather than directly between the disputing parties. The format of the

meeting begins with the leader opening the session with a prayer, histories from the 19 th

century describe prayer throughout the day, with specific prayers associated with mundane

activities such as sleeping, eating, drinking, and traveling.16 Following the prayers he asks

14
Gun control refers to the set of laws or policies that regulate the manufacture, sale, transfer,
possession, modification, or use of firearms. Definition is from the link:
http:en//.m.wikipedia.org./wiki/Gun_control. Last accessed on 14 th May, 2018. In some instances
gun control could also mean restricting the use of guns by seizing them from citizens or specific
individuals or groups of people. This is in order to prevent a resort to such instruments to mete out
cruelty or engage in violence.
15
Emphasis mine. Talking for this length of time was also a way to reduce tension between the parties
and allow them to cool off.
16
Kamakau, Samuel Manaiakalani ; Mary Kawena Pukui; Dorothhy B. Barrere. Tales and Traditions of
the People of old: Na Mo’Olelo a Ka Po’E Kahiko. Booklines Hawaii Ltd. (1993), 64.

25
questions of the participants, and at times will call for a moment of silence when tempers are

running hot or one side is refusing to listen to the other (Boggs and Chun, 1990). The meeting

comes to a close after hearing out both sides and attempting to get at the heart of the dispute.

The leader then has the responsibility of working both parties towards reconciliation.

3. The Kpelle of Central Liberia

In this system of dispute settlement the Kpelle people of central Liberia evolved a moot court

to resolve family disputes that are too small or intimate for the traditional courts. The

sessions, attended by a group of neighbours and family members, are presided over by

someone with a kinship tie to the participants and most often a political standing in the group.

An example is given, where a man named Wama Nya had one wife but inherited a second

when his brother died. He accused this second wife of cheating on him, staying out late, and

denying him some of the food she brought in from the fields. The assembled group listened to

the complaints of the man and the first and second wives, offering their opinions as the

principals spoke and in side conferences. The benefit of the process was that it was in some

ways therapeutic: being that it allowed everyone to be heard and to feel that their complaints

were legitimate enough for others to take the time to listen to and consider seriously. In the

end, the group decided that the husband was mostly at fault. The verdict was that he was to

bring rum, beer, and food for the entire group and thus reintegrate himself and his family into

the community (Gibbs, 1963).

4. The Abkhazian of the Caucasus Mountains

The ancient practice of settlement of dispute had a semblance of mediation. In the Caucasus

Mountains of Georgia in the former Soviet Union, the Abkhazian people have long practiced

26
mediation by elders to resolve disputes within their group and among the tribes in the

surrounding areas. The mediators are generally respected elders, usually male but sometimes

female. First there is a cycle of revenge and the disputing sides tend to call in mediation after

the cycle of revenge has allowed each side to feel that it has exacted equal retribution but

before any reconciliation has been achieved. 17 For example in a certain instance a drunken

argument between members of different families had led to violence. The mediators

essentially shamed the two sides into a reconciliation, which was followed up by a joint feast.

This feast of reconciliation, according to participants, cements family bonds and is considered

more sacred than any court document (Garb, 1996). It is important to also take into

consideration that Abkhazian reconciliation before World War 2 had often involved either

intermarriage between groups or the adoption of a child from one family into the other, thus

creating an extended family link. The bond was dramatized by the new mother’s taking the

adopted child to her breast-either literally or symbolically. At other times, an adult male

seeking to end a dispute would steal into the home of the rival family and attach himself to

the breast of his adversary’s wife or mother. Sometimes this method would have the desired

effect of ending the dispute. Sometimes (perhaps understandably) it would not.

5. The Yoruba of Nigeria

In Nigeria, even up till modern times the Yoruba who undoubtedly live in modern cities still

cling to traditional ways of resolving disputes. In modern times when a matter between

17
That the community allowed the issues to escalate before they intervened is an aspect of the dispute
settlement process that is contrary to modern ADR techniques which insist on prevention of
escalation of disputes by early warnings systems. For further reading on early warning systems one
can rely on the following : Ilan Kelman, Types Of Early warning Systems, UNISDR, Developing Early
Warning Systems: A Checklist.

27
Yoruba ends up in court, it is generally considered a mark of shame on the disputants: they

are viewed by their society as people who are not good and do not favour reconciliation. This

is not to say that the people do not feel conflict has a place in life. An old Yoruba saying

makes this clear: “The tongue and teeth often come in conflict. To quarrel and get reconciled

is a mark of responsibility” (Albert, Awe, Herault, and Omitoogun, 1995, p.9). Disputes at

the family level, such as an argument between co-wives or between parents and a youth who

has run away, are generally brought before the mogaji, the lineage head, and the ,baale, an

elderly head of the district. After the two sides state their case, the elders ask questions and

then try to work toward a compromise in which both sides accept some of the blame. The

elders have an arsenal of techniques for reaching a settlement: proverbs, persuasion, and

subtle blackmail, precedent and even magic. The backing behind the elders’ decisions is

cultural: they can threaten social excommunication or use emotional blackmail. It is for fear

of this that most people might succumb to their verdicts. Some disputes transcend the family.

One unique venue for resolving such disputes is a television program known as So Da Bee,18

which acts as an informal arbitrator. Land disputes are a common topic. In one case,

broadcast in 1995, a blind woman had given a piece of land to a man for farming some

twenty years earlier. After the old woman and the farmer died, their heirs, each assuming they

held ownership, sold the land to different parties. Through a fact-finding process, the

program’s arbitrators determined that the agreement between the old woman and the farmer

had related only to farming, not full possession of the land. The farmer’s heirs were forced to

rescind their sale. The traditional head of the Yoruba, known as the Olubadan, also acts as an

arbitrator in many disputes. In a 1983 case, two men each sought the title of mogaji of the

Sodun family. All internal efforts to resolve the disputes had failed, so the matter was brought

before the Olubadan, who sat in council with his most powerful chiefs. After both sides

18
So Da Bee is a Yoruba phrase which translates in English to mean, ‘Is this a fair way of doing things?’
It started in 1983 by the Broadcasting Corporation of Oyo State (BCOS).

28
presented their case and were questioned by the council, the situation still could not be

resolved, so the Olubadan ruled that the family would have two mogaji.

6. China

In China, the traditional view of dispute resolution had its origin in Confucian ethics, and it

adopted mediation early. Confucius (551-479 B.C) taught that natural harmony should not be

disrupted and adversarial proceedings were the antithesis of harmony. 19 Since the Western

Zhou Dynasty two thousand years ago, the post of mediator has been included in all

governmental administrations. Today in China, it is estimated that there are 950,000

mediation committees with 6 million mediators- in fact; there are more mediators per 100

citizens in China than lawyers per 100 people in the United States (Jia, 2002). Given the

emphasis on harmony, Chinese mediators have long played a far-reaching role: “Chinese

mediation aims not only to respond to a conflict when it breaks out, but also to prevent it

from happening…[it] is a continuous process of being vigilant against any potential threats to

harmony, even after the harmony has been built’’ (Jia, 2002, p. 289). This is a typical

example of early warning systems. Chinese mediators not only aim at the settlement of

disputes but also give the disputants instructions on how to have a better relationship.

7. Greek Roots of ADR

In the Western World, the story of ADR can be traced back to the ancient Greeks. Although

people of all countries, eras and stages of civilization have developed myths that explain the

existence and workings of natural phenomena, recount the deeds of gods or heroes, or seek to

19
The teachings of Confucius focus on peace and social harmony. See also Xiaohui (Anne) Wu and
Cheng (Jason) Qian, Culture of China’s Mediation in Regional and International Affairs.

29
justify social or political institutions, the myths of the Greeks have remained unrivalled in the

Western world as sources of imaginative and appealing ideas.20 One famous story of

arbitration came down through mythology. The goddess Juno, Athena, and Aphrodite, were

squabbling over who was the most beautiful and called on Paris, the royal shepherd, to

decide. Paris was given a bribe by Aphrodite, who thus won the contest. But Juno, wife and

sister of Jupiter, was not one to forgive and forget. She was so furious at Paris that she

unleashed a host of plagues on Aenaes, his fellow Trojan, as the great hero strove to found

the new Troy. Thus, one of the classics of Western literature, Virgil’s The Aeneid, can be read

as a long mediation on the evils wrought by an arbitration gone awry. Arbitration was not

simply a matter of mythology to the ancient Greeks. As Athenian courts became crowded, the

city-state instituted the position of public arbitrator sometime around 400 B.C (Harrell,

1963). According to Aristotle, all men served this function during their sixtieth year, hearing

all manner of civil cases in which the disputants did not feel the need to go before the more

formal, and slow, court system. The decision to take a case before an arbitrator was

voluntary, but the choice of being an arbitrator was not. Unless he happened to be holding

another office or traveling abroad, any eligible man selected to serve as an arbitrator was

required to do so: if he refused, he would lose his civil rights (Harrell, 1936). The procedures

set up by the Greeks were surprisingly formal. The arbitrator of a given case was chosen by

lottery. His first duty was to attempt to resolve the matter amicably. This failing, he would

call witnesses and require the submission of evidence in writing. The parties often engaged in

elaborate schemes to postpone rulings or challenge the arbitrator’s decision. An appeal would

be brought before the College of Arbitrators, which could refer the matter to the traditional

courts. In one such appeal process, Demosthenes had alleged that one Midias had used

disrespectful language toward Demosthenes and his family. Midias took legal steps to put off

the decision by the arbitrator, Straton, including failing to show up on the day the final
20
John Richard Thornhill, Pollard, A. W. H. Adkins, Greek Mythology (2003).

30
decision was to be rendered, but Straton ruled against him. Although the official record is

incomplete, Midias successfully appealed the decision before the college of Arbitrators, and

Straton was expelled from the board. This outcome may seem a setback for arbitration at a

very early stage, but it can also be read as an example of a strong-policing mechanism. A

traditional judge later upheld the board’s censure of the arbitrator. The system, it seemed, had

worked.21

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”. Cicero said a

trial is “exact, clear-cut, and explicit, whereas arbitration is mild and moderate”. 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. Even many of America’s most famous

figures- such as George Washington, 22Benjamin Franklin,23 and Abraham Lincoln24- were

staunch supporters of ADR.

The formalization of ADR was arguably brought about by an American Litigation lawyer

called Eric Green, who first used the term ADR in an article entitled Settling Large Case

21
These are typical example of Greek mythologies from which much of the Western world derived its
notion of what ADR basically entailed. These are the earliest examples of ADR in Greek society.
22
Although emphatic about the role of the judiciary in maintaining the State, Washington also realized
that not everything ought to go before that venerable institution: as such, he included an arbitration
clause in his will.
23
Franklin once lamented, “When will mankind be convinced and agree to settle their difficulties by
arbitration?” Letter from Benjamin Franklin to Joseph Banks (July 27, 1783), reprinted in 1 The Private
Correspondence of Benjamin Franklin 132 (3d ed., 1818).
24
Lincoln once wrote “Discourage litigation. Persuade your neighbours to compromise whenever you
can. Point out to them how the normal winner is often the real loser-in fees, expenses, and waste of
time.” Quoted in Fredrick Trevor Hill, Lincoln The Lawyer (Littleton, Colo.: F.B. Rothman, 1986)
(1906), 102-3.

31
Litigation: An Alternative Approach25Green was instructed on a large scale commercial

dispute involving the alleged infringement of certain patent devices. Legal proceedings had

been commenced, Green estimated that both parties had spent several hundreds of thousands

dollars during the two and half years of preparation for the hearing of the case for which a

date had not been set at the time they were looking out from an alternative method of

resolving the dispute, without recourse to litigation. The parties agreed to run a “mini-trial”

that involved the two parties attending a two-day ‘information exchange’ chaired by a neutral

third party advisor, who was a former judge. The information exchange was to present each

party’s version of the dispute. The third party’s neutral role was to moderate proceedings and

not to effect a compromise of the dispute. Certain rules as to the proceedings were agreed

upon by the parties. After two days settlement was reached that saved parties in excess of

US$1M in further litigation costs and possibly years of anxiety waiting for a hearing and a

judgement. Green’s approach went on to become what we now know as alternative dispute

resolution.26

The ADR timeline presented in the historical analysis within this work also includes the 21 st

century use of mediation in the Microsoft monopoly cases27. The case of United States v.
28
Microsoft Corporation was tried before Thomas Penfield Jackson in the United States

District Court for the District of Columbia. Compared to the European decision against

Microsoft in Microsoft Corp. v. Commission of the European Communities, the DOJ one is

focused less on interoperability and more on predatory strategies and market barriers to

25
(1978) 11 Loyola of Los Angeles L. Rev 493.
26
Mrs Nimisore Akano, Sokefun, Orie, National Open University of Nigeria ,School of Law, Alternative
Dispute Resolution 1, 13 and 14.
27
United States v. Microsoft Corporation (2001), 253 F.3d 34, Microsoft Corp. v. Commission of the
European Communities (2007), T-201/04.
28
253 F.3d 34.

32
entry.29Internationally, the term ADR as a movement has also taken off in both developed and

developing countries.

1.2 Contemporary features of ADR

After taking a comprehensive look at the progression of Alternative Dispute Resolution from

ancient times up until contemporary times, it will be helpful to critically identify

contemporary features of ADR which not only serve to differentiate it from the ADR

methods practised in ancient times but other methods of dispute resolution such as litigation

and all such others which do not fall under the forms of ADR. Although the characteristics of

negotiated settlement, conciliation, mediation, arbitration, and other form of community

justice vary, all share a few common elements of distinction from the formal judicial

structure.

1. Informality

Most fundamentally, ADR processes are less formal than judicial processes. In most cases,

the rules of procedure are flexible, without formal pleadings, extensive written

documentation, or rules of evidence. This informality is important for various reasons. It is

appealing and important for increasing access to dispute resolution for parts of the population

who may be intimidated by or unable to participate in more formal systems. It is also

important for reducing the delay and cost of dispute resolution. Most systems operate without

formal representation. ADR processes are less formal than the traditional court process.30

Simpson suggests that while litigation can be expensive, formal and lengthy, ADR is

relatively cheap, and flexibility may be better suited to a person who is intimidated by the

courtroom experience.31
29
Le Concurrentialiste, The Microsoft case by the numbers: comparison between U.S and E.U..
30
Supra, note at 15, U.S. v. Microsoft Corp.
31
Simpson, Guarded Participation, 6.

33
 2. Application of Equity

ADR programs are advantageous because they are instruments for the application of equity

rather than the rule of law. In taking decisions concerning each case, it is decided by a third

party or negotiated between disputants themselves, based on principles and terms that seem

equitable in the particular case, rather than on uniformly applied legal standards. ADR

systems tend to achieve efficient settlements at the expense of consistent and uniform justice.

In societies where large parts of the population do not receive any real measure of justice

under the formal legal system, the drawbacks of an informal approach to justice may not

cause significant concern. If the informal justice system seems unrealistic, people can

alternatively also take resort to the formal justice system. But they must also have to bear

with the rigours of the formal justice system. The system of ADR stands in this breach

created by the merger of Law and Equity. ADR offers an alternative system for relief from

the hardship created by the substantive and procedural law of formal adjudication. Moreover,

the freedom, elasticity, and luminance of ADR bear a striking resemblance to traditional

Equity, offering relaxed rules of evidence and procedure, tailored remedies, a simpler and

less legalistic structure, improved access to justice, and a casual relationship with the

substantive law.32

3. Direct Participation and Communication between Disputants

Some other characteristics of ADR systems include more direct participation by the

disputants in the process and in designing settlements, more direct dialogue and

opportunity for reconciliation between disputants, potentially higher levels of

confidentiality since public records are not typically kept, more flexibility in designing

creative settlements, less power to subpoena information, and less direct power of

32
Thomas O. Main, ADR: The New Equity, University of Nevada, Las Vegas- William S. Boyd School
of Law, Vol. 74, (2005), 330.

34
 enforcement. The impact of these characteristics is not clear, even in the United States

where ADR systems have been used and studied more extensively than in most

developing countries. Some are of the opinion that still the compliance rate of informally

settled disputes is much higher. This is one of the most salient features of ADR. It relies

less on legal representation and more on the parties meeting face-to-face with each other

in the presence of a professional mediator or conciliator.

4. ADR is Voluntary

Disputants decide voluntarily to use ADR to resolve their differences. Here the principle of

self-determination is being used by the parties to determine the form they desire their dispute

settlement to take. No one is coerced to enter into ADR. It is a voluntary process unlike

litigation where respondents can be subpoenaed to respond to charges or provide evidence in

a public court of law. Mediation as a typical ADR process invites the parties to engage in a

potentially creative and collaborative method of problem solving, without forcing a decision 33

on any of the parties. In a mediation process the final decision rests in the bosom of the

parties and not a third party deciding for them. ADR processes are typically constituted of

parties, being those who decide to resolve their conflicts through appropriate dispute

resolution method. It is enough for one party to say no to an ADR process like mediation and

the process may not start or continue.

5. ADR is Confidential

Often there is much public interest when a case is under litigation and with the media

sometimes giving details of court proceedings. However, ADR is private and confidential. 34

Its practitioners are bound by their code of ethics to preserve the privacy of their clients.35
33
K.K. Kovach, Mediation, in The Handbook of Dispute Resolution, Josey-Bass, (2005), 304.
34
L. E. Susskind, Consensus Building and ADR, Why They Are Not the Same Thing, in The Handbook
of Dispute Resolution, Jossey–Bass, (2005), 359.
35
American Model Standards of Conduct for Mediators, Standard V stresses this confidentiality.

35
ADR proceedings are most often done behind closed doors. In many cases, the parties

involved in the process have to sign an agreement, to keep the proceedings confidential and

private unless permitted by law to do otherwise.36

1.3 Areas of ADR use37

The extent of the applicability of ADR use is wide and large enough to accommodate a wide

degree of fields. In applying ADR to settle disputes within these fields and areas, its

efficiency is easily evinced and highly discernible. Below are a few of the areas where ADR

is used to settle disputes:

Employment Disputes & Industrial Relations: The Role of ADR

Conflict is an inevitable part of everyday working life and it has been noted that:

People get ‘stuck’ in conflict at work for a number of reasons. Conflict

defines us, validates our behaviour and strengthens our bonds with
allies. It is very difficult to move on from conflict without
compromising this identity and losing face. Yet remaining in conflict
makes us lose perspective and the opportunity of self-development. It is
also toxic to the person involved and those surrounding the conflict.38
When disputes arise at a workplace, such underlying factors to the dispute may include the

personalities or cultural backgrounds and differences of the parties and quite often these

factors tend to be the catalyst. Furthermore, in the context of employment disputes, if they

remain unresolved, they can have negative consequences for individual, team and overall

organisational performance, whether in the private sector or public sector 39. It has been
36
Nagle Lechman, Conflict and Resolution, 85.
37
Law Reform Report, Alternative Dispute Resolution: Mediation and Conciliation (2010).
38
Pienaar, Overcoming resistance to workplace mediation (2009). Online article available at:
www.adrgroup.co.uk. Last accessed 6th July 2018.
39
Buckley, Employment Cases on the Rise (August 2009). Online article available at:
http//www.hrri.ie/hrri/index.php?option=com_content&view=article&id=156:employment-cases- are-

36
suggested that “ADR offers a means of bringing workplace justice to more people, at lower

cost and it also helps to clear the backlog of cases at statutory dispute resolution institutions

and is thus assisting government agencies to meet their social responsibilities more

effectively”40. The English courts have also recognised the role of mediation in the resolution

of disputes. In the English Court of Appeal case Vahidi v. Fairstead House School Trust

Ltd.41 The Court stressed the appropriateness of mediation for resolving disputes, stating that

“[o]ne shudders to think of the cost of this appeal and of the trial which apparently took as

long as 9 days. As the courts have settled many of the principals in stress at work places,

litigants really should mediate the cases such as the present.” In another English Court of

Appeal case Macmillan Williams v. Range42 both of the parties had to pay their own costs as a

result of their failure to mediate after the court recommended it. This case involved a firm of

solicitors suing a former employee for repayment of advance salary/commission. The

plaintiff won the case at the County Court but, on appeal by her former employers, the

plaintiff lost. When permission was given to appeal, a recommendation was made by the

Court to mediate, which both parties chose to ignore. The recommendation was made having

regard to the disproportionality of the costs of the appeal to the amount at stake. In the light

of the recommendation to mediate and the parties’ subsequent behaviour, no order was made

as to the costs of the appeal.

There are a whole lot of benefits that come with using ADR as a tool for dispute settlement

within a workplace. These include: greater transparency within the workplace, procedural

flexibility, efficiency and confidentiality which provides privacy for the parties and

on-the-climb&catid=34: legal-resources&Itemid=56. Last accessed 6th July, 2018.

40
Bendeman, ADR in the Workplace- The South African Experience (2007) 7 African Journal on
Conflict 1 at 139. See also Bourgeois, Resolving Employment Cases through Mediation (2007) 70
Texas Bar Journal Issue 7.
41

42
[2004] ECWA Civ 294.

37
protection for the organisation’s reputation. ADR can also offer greater sensitivity to the

needs of the particular workplace and their employees, especially in highly sensitive and

personal disputes such as sexual harassment claims. Furthermore, in facilitative and advisory

ADR processes, an agreement reached in a workplace dispute may contain a wide range of

novel outcomes which would not normally form part of a court agreement and which may

provide solutions that better suit each parties’ needs.

Family Disputes & ADR

Despite the evident increases in family law applications to the Courts, research has indicated

that:

The adversarial nature of proceedings does little to resolve conflict in

families’ lives but rather compounds and increases that conflict in many
cases. Alternatives, such as mediation and collaborative law, should be
better supported and encouraged, and be widely available countrywide” 43
In a District Court family law case, the judge was reported as stating to
parties in a family law dispute that: “You have chosen to go down the
court route, the adversarial route, and that may not always be for the best.
There are alternative means of dealing with these problems. You should
consider the mediation route.
The common ADR forms and processes such as mediation, conciliation, and collaborative

practice provide efficient alternative avenues for the resolution of family disputes. The

Commission in its 1996 Report on Family Courts concluded that mediation services are not

intended to replace the court system, but rather to divert appropriate cases from it. Some

cases will and should be resolved in court and may not be appropriately resolved by ADR

processes. International research has indicated that voluntary participation in [sic]

information sessions on ADR is quite low, and so the trend has been to make them mandatory

for all parents who seek the assistance of the courts for disputes about their children , or at the

very least to provide courts with the authority to order the information session. 44 Several

jurisdictions now mandate that separating couples attend an information session on ADR
43
Matthews, Call for Radical Reform of Family Law Court System [2009] 12(4) IJKL, 99.

38
prior to the commencement of legal proceedings.45The Family Law Reporting Committee

agreed with the view of the Law Report Commission, Ireland in its Consultation Paper that,

the principal advantage for the parties, for their children and for the court system from the use

of mediation in appropriate cases is the possibility that it will encourage the parties to

negotiate and settle their cases at the earliest opportunity instead of leaving any settlement

discussions until the day of the hearing.46

Personal Injuries & ADR

As noted by one commentator in the Law Report Commission:

Good resolutions are not always found through the prism of relevancy and
admissibility. Often, in medical negligence cases, resolutions are found in
the hearts, minds, and interests of the participants…the enhanced
communication provided by mediation allows for conciliation, hearing,
restoration of relationships, settlement and the avoidance of a destructive
process that may adversely affect the emotional and physical well-being of
all the participants47
Mediation programmes such as Chicago’s Rush-Presbyterian St. Luke’s Medical Centre’s

hospital-based mediation programme (“The Chicago Rush Hospital mediation model”)

demonstrates the potential for mediation to resolve medical negligence cases. Established in

1995, the Chicago Rush Hospital mediation model is now one of the most well-regarded and

thoroughly researched medical mediation systems in the United States. 48 Since 1995, it has

successfully expedited resolution and lowered legal costs associated with medical malpractice

44
See Kelly “The United States experience”, keynote address at the Proceedings of the International
Forum on Family Relationships in Transition Legislative, Practical and Policy Responses, December
2005. Available at http://www.aifs.gov.au/. Last accessed 6th July, 2018.
45
See LRC CP 50-2008 at 5.07-5.13.
46
Report of the Family Law Reporting Committee to the Board of the Courts Service at 33.
47
Galton, Mediation of Medical Negligence Claims (2001) 28 Cap U L Rev, 321.
48
Davenport, Forgive and Forget: Recognition of Error and Use of Apology as Preemptive Steps to
ADR or Litigation in Medical Malpractice Cases (2006) 6 Pepp Disp Resol L J 81, 96-97.

39
cases. In the cases that go into mediation each year, 90% are successfully settled, which

produces a 50% reduction in annual defence costs and a 40% to 60% savings in pay outs as

compared to comparable cases that have gone to trial. 49 The Chicago Rush Hospital

mediation is modelled on traditional mediation except that two co-mediators are used instead

of a single mediator. The mediation usually commences after discovery has begun or ended

so that both sides are fully aware of the facts of the case. An important issue to highlight in

relation to mediating medical negligence claims is that the parties participating in the process

must have the authority to settle the dispute at the mediation.

Commercial Disputes & ADR

Poorly managed conflicts costs money, creates uncertainty and degrades decision quality. As

one commentator in the Law Reform Commission, Ireland: “Conflict is fact of life of life

even in the best-run organisation. It goes under many names- disagreement, disharmony,

dispute, difficulty or difference- but the results of mismanaged conflicts are the same: at best

unwelcome distraction from a heavy workload: at worst damage which may threaten the very

future of the organisation.”50

Some details surrounding commercial disputes are sensitive and some parties would prefer

not to have this sensitive information out in public. The confidentiality afforded by mediation

and conciliation is therefore highly attractive in resolving commercial disputes. Furthermore,

when commercial disputes arise, the most favourable outcome for those involved is to have

49
See Yee, “Mandatory Mediation: The Extra Dose Needed to Cure the Medical Malpractice Crisis”
(2007) 7 Cardozo Journal of Conflict Resolution 393; Metzloff et al “Empirical Perspectives on
Mediation and Malpractice” (1997) 60 Law & Contemp Probs 107; and Johnson “The Case for
Medical Malpractice on Mediation Panels” (2000): 46 Journal of Medicine and Law 2.
50
Conflicting priorities – best practice in conflict management, (CEDR, September 2008). Online article
available at: www.cedr.com. Last accessed 6th July, 2018.

40
the dispute resolved quickly and to maintain a working business with the other party. 51

Indeed,

disputes inevitably arise and when they do, commercial clients will want
them resolved and finalised in a manner that is expeditious and as cost-
effective as possible. The speedy resolution of disputes is a huge
incentive for commercial clients, never more acutely than in recent times,
and mediation has been proven useable in the vast majority of
commercial disputes, irrespective of how complex a case may seem or
how many parties are involved.52
In the UK, the Centre for Effective Dispute Resolution (CEDR) reported that 89% of

commercial mediations are settling on the date of mediation or shortly after. 53 In the current

economic climate, the potential role of ADR in the resolution of corporate insolvencies is of

particular relevance given that it has been reported that the number of insolvencies rose by

25% in the first three months of 2010 compared to the same time last year. In the UK, the

Chancery Court Guide 2009 sets out rules by which insolvency cases before it are managed,

provides, and makes it clear that it will refer cases to mediation where appropriate and that

the parties’ lawyers should consider the use of ADR in all cases.54

ADR also plays a role in the area of resolving construction disputes. As noted by one

commentator, there are several reasons why mediation is an increasingly popular process for

resolution of construction disputes:

Mediation is a response to the financial cost and emotional stress to

contractors, owners, developers, design professionals, and others who
resort to arbitration or litigation to resolve their construction disputes. All
too often, arbitration is not a low-cost alternative to litigation…Mediation
allows the business executive to minimize legal costs, control the decision-
making process, avoid most of the emotional stress, maintain business

51
See LRC CP 50-2008 at 7.02.
52
Conway, Recent Developments in Irish Commercial Mediation: Part 2 (2009).
53
The Fourth Mediation Audit (Centre for Effective Dispute Resolution, May 2010). Available at
www.cedr.co.uk. Last accessed 6th July, 2018.
54
See Chancery Guide (HMCS, 2009). Available at: www.hmcourts-service.gov.uk. Last accessed 6th
July, 2018.

41
 relationships, and provides the most rapid process for full and final
resolution of disputes55

Governments in other jurisdictions have promoted the use of mediation for the resolution of

construction disputes. For example, the Taiwanese Government Procurement Act 1998

established the Dispute mediation System (DMS) to mediate construction disputes and it

resembles a Dispute Review Board (DRB) that was established in the mid 1970’s. The DRB

is set up at the start of a construction project, and meets regularly at the job site to resolve any

disputes as they occur. However, the DMS system does not become active in mediating

disputes until a specific request is submitted by the contractor. 56 In 1984, the Hong Kong

Government pioneered its trial Mediation Scheme to settle construction disputes from 16

selected civil engineering contracts which were administered by the Hong Kong Institution of

Engineers. Since 1989, all major public work contracts such as the Hong Kong Government

Airport Core Program (ACP) have included provision for the mediation of disputes.57

As with domestic commercial disputes, international commercial disputes are inevitable. As

noted by one commentator:

“One of the obstacles that hinder trade and investment is a lack of

mechanisms to deal swiftly and affordably with commercial disputes.
Disputes are inherent in trade and business relationships. Companies will
hesitate to engage in commercial relations in a foreign country if they are
not sure that there is an appropriate way of solving them” 58

55
Tarlow, Mediation of Construction Disputes (2008). Online article available at: www.ramco-ins.com.
Last accessed 6th July, 2018.
56
Tserng Tang, Analysing dispute mediation cases of infrastructure projects through project life cycle
(December 2009) 5 Structure and Infrastructure Engineering 6 at 515.
57
Report of the Working Group on Mediation (Hong Kong Department of Justice, February 2010).
Available at: www.doj.gov.hk. Last accessed 6th July, 2018.
58
“Preventing and managing international commercial disputes-Towards a EuroMed Alternative
Dispute Resolution Infrastructure”. Closing speech delivered at the Conference on Alternative Dispute
Resolution, Rome, 289 September 2007. Available at www.adrmeda.org. Last accessed 6th July, 2018.

42
To alleviate this concern, many jurisdictions promote themselves as centres for international

commercial dispute resolution. One of the more relevant principles in the 2008 Directive for

international commercial mediation is the enforceability of agreements reached through

mediation.

Consumer Disputes & ADR

It was recognised by the European Commission in its Green Paper for Collective Consumer

Redress that:

“Encouraging active participation of citizens in the good functioning of

markets helps protect healthy competitive conditions. In particular, access
to redress by consumers when consumer rights are violated by traders
promotes consumer confidence in the markets and improves their
performance.”
As previously noted by the Law Reform Commission, Ireland where efforts to resolve

disputes directly with businesses fail, it is important that out of court ADR mechanisms are

available.59 The importance of providing ADR for consumer disputes lies in the fact that, “The

vast majority of consumer disputes involve relatively low priced goods, services or credit,

where the costs associated with redress substantially exceed the expected benefits associated

with recovery.” ADR processes, such as mediation and ombudsmen schemes, can provide

consumers with time efficient mechanisms of redress. As noted by the European Commission:

In the modern consumer oriented, globalised and digital economy

accountability and confidence plays a crucial role. Traders should be made
accountable for their behaviour if that is detrimental for consumers.
Measures to enhance confidence of consumers will contribute to the
creation of healthy markets and therefore to innovation and
competitiveness. In particular, access to redress by consumers when
traders violate their rights promotes consumer confidence and is a stimulus
for sound traders’ performance.60

59

60
April Forfas, (2005) at 45. See also Consumer protection in the internal market (Special
Eurobarometer 298, European Commission, October 2008) at 50.

43
Property Disputes and ADR

It has been suggested that “persons with an interest in the property sector, including the

landlord and tenant area and the planning process, are increasingly looking at alternative

methods of resolving disputes rather than submitting to an adjudicative process.” 61 Indeed,

increasing provision for ADR processes such as mediation and conciliation has been made in

a number of recent Acts and statutory instruments relating to property disputes.

Mediation of boundary disputes has the potential to preserve a civilised relationship between

neighbours and prevent generations of hostility and unnecessary costly litigation between

families.62There may be underlying issues in the dispute. The process gives the disputants an

opportunity to resolve these issues which might serve as catalysts in escalating the conflict.

Furthermore, mediation can provide the parties with a “win-win” solution in a more cost

effective manner than litigation. As noted by one commentator:

…for a Court to be able to answer the legal and factual questions which
underlie a boundary dispute it will often need to undertake an examination
of the original title deeds, subsequent evidence perhaps going back several
decades ( and which is almost certainly disputed), and, in all likelihood,
the evidence of one or more expert surveyors. These elements of a
boundary dispute could lead to a trial lasting for several days, and the costs
involved can, in many cases be more than the value of the disputed land.63
In the English Court of Appeal decision Pennock v. Hodgson64, which involved a boundary

dispute between neighbours, Mummery LJ also expressed disapproval about escalating costs

in neighbour disputes stating that “The unfortunate consequences of a case like this are that,
61
Morgan & O’Connor Resolving property disputes, Universal service- a value for money solution?
(2003) 10(4) CLP 96.
62
LRC CP 50-2008 at 9.24.
63
Greatholder “Boundary Disputes” (April 2010), online article available at: www.russell-cooke.co.uk.
Last accessed 6thh July, 2018. (Most of the online sources in this work were further confirmed and
accessed on the 6th of July, 2018). See also Callanan Neutralising Property Disputes: The Role of
Mediation (2009) 14(4) CPLJ98; Highmore & Beswetherick Where neighbours should fear to tread
(2008) 841 Estates Gazette 151; and See also Jolly A Surburban Nightmare (2010) 30 Law Society
Gazette (Eng. & Wales) 20.
64
[2010] EWCA Civ 873.

44
in the absence of any compromise, someone wins, someone loses, it always costs a lot of

money and usually generates a lot of ill-feeling that does not end with the litigation. None of

these things are good for neighbours.”65

Arbitration and ADR in the Oil and Gas industry 66

There is a clear trend for disputes in the oil and gas industry (as well as other industries) to be

dealt with more by arbitration and ADR and less by domestic courts.67Indeed, this trend is not

restricted to the oil and gas industry although, because of the high level of international

investment arising in oil and gas, it is particularly marked. Most large oil and gas investments

are undertaken on a joint venture basis. Major oil companies do not want to spend a great

deal of time and money litigating against each other. Litigation causes bitterness, is generally

in the public domain and is expensive. The Association of International Petroleum

Negotiators (AIPN) is the leading professional membership organization of commercial

negotiators and energy lawyers in the international oil and gas industry.68

Before embarking on arbitration or litigation, another step is mediation. This has really taken

off in the UK as a way of resolving disputes, partly because of Court requirements for a

formal mediation process before a trial can commence. It has a high success rate-60% to

70%. The mediator needs to have a flexible mind and come up with lateral thoughts: what

about a new deal between the parties instead of a cash settlement? He must be ready to point

out forcefully (but privately) to each party the weaknesses he perceives in their case.
65
See Mummery slams feuding neighbours –again (July 2010) Solicitors Journal. Online article
available at www.solicitorsjournal.com. Last accessed 6th July, 2018. See also Gatty Drawing the Line
(2007) 151 Solicitors Journal 3.
66
John Ellison (Chairman, KPMG Forensic U.K.; Mediator; International Chamber Of Commerce
[Paris] Arbitrator; and Oil & Gas Industries Specialist) FCA, FAE, MSSBV, MEWI.
67
Dr. C.J. Amasike, FCI.Arb. Arbitration & Alternative Dispute Resolution in Africa (2012), 218.
68
The AIPN serves more than 4, 500 professionals in some 110 countries. AIPN develops petroleum
model contracts that are widely used throughout the industry, provides educational seminars and
conferences around the world, publishes leading research for dialogue on oil and gas transactions
amongst companies, government and their advisors.

45
Sometimes, mediation may appear to fail but the case nevertheless settles shortly thereafter.

The mediation has prepared the groundwork and both parties have more realistic

expectations. If necessary, matters may go to arbitration as an alternative form of dispute

resolution process. Arbitration hearings can also be much quicker and cheaper than litigation-

although are certainly more expensive than mediation. Arbitration has its own rules and

names. Instead of trials, one has hearings. Instead of skeleton arguments, one has Memorials.

And there are cultural differences. Another driver for international arbitration is the growth of

claims under Bilateral Investment Treaties.

Maritime Disputes & ADR

The arbitral process is regarded as the traditional method of resolving maritime disputes and

its origins can be traced as far back as voyages of ships owned by ancient Phoenician

carrying the cargoes of Greek traders.69 Maritime arbitration is simply the process of using

the mechanism of arbitration to resolve maritime disputes. It has been defined thus:-

An arbitration is usually described as a maritime arbitration if in some way

it involves a ship. Most commonly, disputes will be referred under a
charter party. This may be for the hire of a ship for a period of time (a time
charter), or the contract may simply be one for a voyage (a voyage charter)
under which freight is paid, in which there are provisions as to the amount
of time (lay time) allowed to the charterer for loading and discharging, and
liquidated damages (demurrage) to be paid if those times are exceeded…

69
See the Handbook of the Society of Maritime Arbitrators New York Fourth Edition page 1. See also
Professor Tetley, Marine Cargo Claims (4 th Edition to be published in 2008, Chapter 28 p. 3 note 2)
(Where the Professor suggests that maritime arbitration has been around since pre-historic times) culled
from Chan Leng Sun The Arbitration Chapter in the Unicitral Draft Transport Law ICMA XVI
Congress Papers Singapore 2007. See also Fredrick Sandborn, Origins of Early Maritime Commercial
Law, (1930 Edition):268.

46
Parties to international contracts are normally reluctant to submit to national courts or other

parties. Resolution of the dispute through the private process of arbitration other than before

the state backed national courts offers a way out. 70 Other advantages of arbitration include

party autonomy, choice of dispute resolver, privacy, confidentiality 71flexibility and the

resolution of the dispute by commercial persons skilled and experienced in the particular

trade or commerce. The arbitration agreement embodies the parties’ contract and is the source

of the power and jurisdiction of the arbitral tribunal. 72Arbitral tribunals may be conferred

with power under the arbitration agreement to determine the dispute other than on the basis of

strict legal principles but on commercial considerations thereby positively impacting on the

preservation of the parties’ commercial relationships. The parties may agree that the arbitral

tribunal shall decide ex aequo et bono (on the basis of natural justice and equity) or as

amiable compositeur (friendly compromise). The agreement may confer power to determine

the dispute on the principles of Lex Mercatoria (body of merchant made rules which has

developed from trade customs and usages in international trade).

1.4 Emerging socio-legal necessity of ADR

In considering the Hobbesian hypothesis73 adduced in the first part of this Chapter which

presents society as a social contract between individuals who were in a natural state where

70
See article: Doyin Rhodes-Vivour (Mrs), The Agreement to Arbitrate- A Primary tool for the
Resolution of Maritime Disputes, 3.
71
Some states reject the principle of confidentiality in arbitral proceedings. In such jurisdictions if
confidentiality is desired parties are advised to put in an express provision of confidentiality in the
agreement to arbitrate. See Denys Nicky, Rebecca Axe, Parties, and Jane Fitzgerald, Trainee Solicitors-
Inc. & Co, Privacy in Court proceedings and Confidentiality in Arbitration- A Comparison LMAA Law
Review 2004-2007.
72
The person or persons appointed or chosen to resolve the dispute is or are referred to as the arbitral
tribunal. For the meaning of arbitral tribunal see UNCITRAL Model Law Article 29(a).
73
The correct word for an unverified empirical claim is a hypothesis. Hence I am unapologetic about
attributing this term to Hobbes and other theorists making similar claims although few of them use
that word. The correct word for an unverified empirical claim that is accepted without scrutiny and
gains credibility from centuries of repetition is a myth.

47
life was “nasty, brutish and short”. Rousseau in his work fails to explicitly mention the issue
74
of conflicts. However, he recognises the social contract as being an agreement between a

people who submit their individuality to a sovereign to whom they bequeath their collective

personality. This individual is to some known as the Leviathan. It is his duty to maintain

peace and enforce order among citizens. In maintaining peace and enforcing order, the

resolution of disputes amongst the citizens or the citizens and the state is paramount. In every

given society, the efficient resolution of disputes is highly important. Conflicts are bound to

arise. Conflicts are unavoidable. This is basically because no man is an island of his own. In a

bid to survive man must enter into the first social contract and a series of other contractual

relationships which result in social relations with his fellow man. Due to man’s inherent

nature which is basically selfish, conflicts will in the course of relating with others arise.

Disputes are inevitable facts of life. Different commercial, legal and even social expectations

can be sources for disagreement. Genuine differences can concern the meaning of contract

terms, the legal implication for a contract and the respective rights and obligations of the

parties. Extraneous factors and human frailties, whether through mismanagements or over

expectations, will also interfere with contractual performance. For example, a major area of

dispute is failure to pay or wish not to pay for goods bought and therefore a party is seeking

an excuse or justification to refuse to pay all or part of the contract price. Due to the

complexity and the frequent recurrence of conflicts, it is therefore needful to have the best

and most efficient method available to manage conflicts.

Some disputes are sensitive and confidential in nature and disputants may prefer settlement

in private to one in public glare of court. In addition, the complexity of court litigation tends

often times toward increase in costs which disputants are naturally anxious to reduce. On the

other hand, there may be claims involving small sums, which may not be worth the cost of

74
supra, note at 3.

48
litigation. All these have led to the development of alternative methods of resolving disputes.

What it is the value of a judgement that comes after eighteen years of brilliant and robust

advocacy, when some of the parties may have died or when interest may have changed? What

also is the real and actual value of a judgement if after paying layers tons of money and

dissipating so much emotion; time and energy going to court for about two decades, the

judgement finally came after several years after? An investment dispute in particular and

business dispute in general cannot wait for eighteen years to be efficiently and meaningfully

resolved. The outcome will be a sheer waste of time, money, energy, emotions and other

valuable resources of all the parties directly or indirectly involved including the supposedly

victorious party, except of course the lawyer. In the world of human interactions and

commercial transactions disputes generally arise between parties as a result of disagreements.

When these arise, the need to resolve them as quickly as possible often arises and the

common method employed by disputants is litigation in court. Disputes arise in contracts of

sales, construction, employment, banking, insurance, etc. Litigation simply proves inadequate

in the resolution of disputes. Litigation is a term encompassing the use of court processes to

resolve a dispute, according to the rules in place in that jurisdiction. 75 Differences arising

from on-going personal relationships get complicated when litigation is resorted to because of

the obvious win-lose nature of litigation. Court judgements identify clear winners and

outright losers. The winner becomes a triumphant champion, the loser naturally does

everything to undermine the judgement or wait for another day to take his pound of flesh.

Litigation is a win/lose means of dispute resolution. Such mode of resolving disputes is no

longer fashionable especially at a time when the whole world is opening up. It is because of

the limitations of litigation, some of which are highlighted above, that focus is now being

placed on ADR in most contemporary jurisdictions as a means of resolving disputes.

75
Presented by David Tupper, Litigation vs. Arbitration, Back to school symposium, August 25, 2011,
CLE-ACC Houston.

49
Where disputes are not effectively managed the breakdown of society and social contracts as

a whole is imminent. Whole societies and communities could bear the brunt of such

mismanagements. Take for example the Damascus Spring and the Arab Spring, amongst the

many upheavals that have bedevilled national and international organisations where there

were breaches in social agreements between them.76 The many instances of unresolved

disputes between citizens due to lengthy litigation processes and technicalities contained in

such processes, coupled with the hostilities after disputes were settled where “justice was not

done or manifestly seen to be done” has made many citizens and whole societies turn to

alternative methods for efficient resolution of disputes. This inefficiency in court resolution

systems and processes is one of the reasons for underdevelopment in many third world

countries who in attempting to imitate first world countries, take hook, line and sinker their

legal systems. Nigeria for example adopts most of its legal structures from Britain. Though

most of these legal systems which are unique to Britain have long been amended or modified

to meet their contemporary needs, Nigeria still continues to apply Britain’s out dated rules as

a way of meeting present demands. In applying those borrowed legal systems to their unique

communities the failure of such applications are evident. Cultural uniqueness and sets of

basic differences from one community to another will not allow for efficiency in application.

The resolution of disputes must not only be seen to be just and efficient but must be done in

such a way that post- hostilities are effectively avoided. This is the basic objective of dispute

resolution systems as it has been seen to resonate over the ages.

76
The Arab spring also referred to as Arab Revolutions was a revolutionary wave of both violent and
non-violent demonstrations, protests, riots, coups, foreign interventions, and civil wars in North Africa
and the Middle East that began on 18 December 2010 in Tunisia with the Tunisia Revolution. See more
information at: https://en.m.wikipedia.org/wiki/Arab_Spring. Last accessed on the 20th of May 2018.
The Damascus Spring was a period of intense political and social debate in Syria which started after the
death of President Hafiz al-Asad in June 2000 and continued to some degree until autumn 2001, when
most of the activities associated with it were suppressed by the government. See more information at:
http://en.m.wikipedia.org/wiki/Damascus_Spring. Last accessed on the 20th of May 2018.

50
In our time, as crowded, impersonal modern, urban living pushed people relentlessly into

even closer and more frequent interpersonal contacts, many of which were unwelcome and

fraught with unpleasantness, sociological changes introduced new opportunities for the

application of mediation (and other ADR models). 77 While interpersonal conflicts once might

have been referred to sensitive and caring members of an extended family, a local clergyman,

or even a friendly policeman, these interpersonal and personal resources for handling disputes

now seemingly have lost their relevance and effectiveness. The search for solace within the

judicial structure often is disappointing not because the courts are indifferent to the problems

presented, but because the adversarial system, which is the cornerstone of our criminal and

civil court structure, is ill-equipped to handle interpersonal disputes.

All over the world, courts of law are overbooked and overburdened. Invariably, there is

delay, usually considerable, in the very resolution of the disputes submitted to them. Court

procedure is very formal and very technical. It is therefore inflexible. This greatly reduces the

ability of litigants to participate directly in the resolution of their grievances. The present

legal practice of litigation leaves the parties exhausted, embittered and often impoverished.

Beginning in Philadelphia and expanding largely by dint of efforts at the grass roots or local

level, centers for dealing with interpersonal disputes within the community began to appear

and take hold of in the early and mid-1970s. The growing movement, given great impetus

and national attention by the 1977 Roscoe Pond conference on the Causes of Dissatisfaction

with the Judicial Process, was “discovered” by Attorney General Griffin.

ADR can be described as an effort to arrive at mutually acceptable decisions. It involves the

application of methods, procedures and skills designed to achieve an agreement that is

satisfying and acceptable to all parties. It offers a more conciliatory means, quicker and less

77
Institute of Chartered Mediators And Conciliators (ICMC), Special Mediation Skills Accreditation
And Certification Training For Membership of the Institute, Training Manual, (Feb 26th- 1st March), 3.

51
expensive platform for resolving disputes in contrast to the procedures of seeking justice and

fairness nor even redress, in a law court. More importantly, ADR mechanism is flexible,

promotes and protects the privacy of aggrieved parties, creates calm and friendly atmosphere

for parties to discuss, agree and disagree before reaching amicable and endorsable agreement.

Today the application of ADR to resolve conflicts are becoming more and more preferred

than litigation in various fields and works of life.78

History records a gradual shift in the zeitgeist of both the community at large, and in

particular of judges, towards a more embracing view of ADR. One of the drivers for this was

a series of legislative enactments in the 19th Century. Although various forms of the law

merchant had been recognised by Parliament since 1353, the shift in attitudes really began

with the Civil Procedure Act of 1833,79 which provided that parties who submit to arbitration

could no longer revoke their decision except by leave of a court. This was followed in 1854

by the Common Law Procedure Act,80 which formulated arbitration processes and introduced

several innovations, including stated cases and compulsory references to arbitration

agreements, and to support the arbitral process. From this time onwards, ‘arbitration [could]

no longer be said to be in any sense a covert rival to litigation. Instead it [was] an

acknowledged alternative.’81 A final turning point was the watershed case of Avery v Scott82in

1856. That decision upheld the validity of a clause making an arbitral award a condition

precedent to any right of action under a contract. The decision has been credited with

‘overturn[ing] a long history of judicial opposition to arbitration’ 83although in truth the tide

had likely started to turn well before then. Probably the most striking thing about that
78
supra, National Open University Of Nigeria, Alternative Dispute Resolution 1, 15.
79
Civil Procedure Act 1833, 3 & 4 Wim, 4, c 42.
80
Common Law Procedure Act 1854, 17 & 18 Vict, c 125.
81
Peter McClellan, Dispute Resolution in the 21st Century: Mediate or Litigate? (Speech delivered at the
National Australian Insurance Law Association Conference, Hamilton Island, 17 September 2008).
82
(1856) 5 HL Cas, 811.

52
decision was the candid acknowledgement by Lord Campbell of the economic incentive that

had previously underpinned judicial hostility to ADR. He said:

My Lords, I know that there has been a very great inclination to the courts
for a good many years to throw obstacles in the way of arbitration. Now, I
wish to speak with great respect of my predecessors the judges; but I must
just let your Lordships into the secret of that tendency. My Lords, there is
no disguising the fact that as formerly the emoluments of the judges
depended mainly or almost entirely upon fees, and that they had no fixed
salary, there was great competition to get as much as possible of litigation
into Westminster Hall, and a great scramble in Westminster Hall for the
division of the spoil…Therefore, they said that the courts ought not to be
ousted of their jurisdiction and it was contrary to the policy of the law84

This would have been quite a controversial concession to make, which is likely the reason

that it does not appear in later, revised reports of the decision.85

Now courts and the community at large are more than willing to accept ADR. There are

many reasons why ADR was developed in recent years. The main reason is due to its

different modus operandi as compared to litigation. According to Walter K. Olson:

Older lawmakers and judges tended to recognize litigation as a wasteful

thing, in its direct expense and the demands it placed on the time and energy
of people with better things to do. It was grossly invasive of privacy and
destructive of reputation. It was acrimonious, furthering resentments
between people who might otherwise find occasion to co-operate. It tended
to paralyze productive enterprise and the getting on of life in general by
tempting them to harass each other and to twist, stretch, and hide facts. It
was a playground for bullies, and an uneven battlefield where the trusting,
scrupulous, and plainspoken were no match for the brassy, ruthless, and
glib. For all that, it was sometimes the least bad of the extremities to which
someone might be reduced; but society could at a minimum discourage it
where it was not absolutely necessary.

83
James Spigleman, International Commercial Litigation: An Asian Perspective. (Speech delivered at
the Biennial LAWASIA Conference, Hong Kong, 7 June 2007).
84
Scott v. Avery (1856) 28 LT OS 207. 211.
85
Scott v Avery [1856] 5 HLC 811, 853. See further Raguz v Sullivan (2000) 50 NSWLR 236 at [47]-
[48].

53
 Taking Pakistan as a case study, there have been instances where the significance of ADR

has been recognised. Mr Justice Tassaduq Hussain Jilani, Judge, Supreme Court of

Pakistan from his paper said:

We (Pakistan) are a vibrant society in transition. There are strains of societal

divide, cultural, economic, political, sectarian and ethnic. This divide feeds
the downside of Adversarial Legalism. There is a need to promote
consolidation, concord and search for alternatives in every arena of societal
divide. This would require a mind-set, a culture and institutional support.
ADR is an attempt in the judicial and quasi domains to promote these values
and these institutions. Not underestimating the need for more resources for
the administration of justice. I am of the considered view that the problems
of backlog and delayed justice cannot be tackled unless there is an
attitudinal change in the main actors of the judicial process i.e. the Bench,
the Bar and the litigant public. Case management and Alternative Dispute
Resolution primarily aim at bringing about this attitudinal change. This
process has to commence at the basic level i.e. at the subordinate judiciary
level. The subordinate courts are the back-bone of the entire judicial
hierarchy. It is here that the concept of rule of law confronts the first trial; it
is here that the impressions and perceptions about the judiciary take shape;
it is here that people in litigation suffer for months, years and decades and
spend the best part of their lives waiting for that elusive Justice which at
times is delayed, at times denied, and at times bitter with expense it
entails.86

At national, international and commercial sectors alternative dispute redress techniques

are now being accepted and acknowledged. Its diverse methods can help the parties to

resolve their disputes at their own instance and subject to their unique circumstances.

Alternative dispute redressal techniques can be used in almost all contentious matters,

which are capable of being resolved, under law, by agreement between the parties.

Dispute resolution is an indispensable process for making social life peaceful. Dispute

resolution process tries to resolve and check conflicts, which enable persons and groups

to maintain co-operation. It can thus be alleged that it is the sine qua non of social life and

security of the social order, without which it may be difficult for the individuals to carry

on their life together.87 ADR offers a system with procedural flexibility, a broad range of
86
Dato’ Syed Ahmad Idid, Alternative Dispute Resolution (ADR) An Alternative Access to Justice.
87
Park and Burger, Introduction to the Science of Sociology, p. 735.

54
 remedial options, and a focus on individualized justice. ADR performs convenient and

useful works that cannot be done, or cannot easily be done, through formal adjudication.

There are numerous social, cultural, and practical forces that steer disputing parties away

from state-sponsored adjudicatory processes.88Certain contours of the dispute resolution

landscape changed in the 1970s, as formal adjudication faced special criticism and

pressures.89Courts experienced an “explosion” of new and complex cases, “discovery

abuse” reached intolerable levels90and an unprecedented lack of civility among lawyers

delayed the resolution of cases and jeopardized the reputation of the profession. Critics

complained that ordinary citizens no longer had meaningful access to the courts business

clients too were demanding more efficient dispute resolution alternatives. 91These amongst

other numerous reasons are what are behind the emerging necessity of ADR as a means

for efficient resolution of disputes.

It would be trite at this point to give a concrete definition of ADR and identify the various

forms it takes. ADR is a term often used to describe a wide variety of dispute resolution

mechanisms that are short of or alternative to full scale court processes. ADR also refers

88
See generally Richard E. Miller & Austin Sarat, Grievances, Claims, and Disputes: Assessing the
Adversary Culture, 15Law and Society Review,.525 (1981) (describing the range and reporting the
incidence of grievances, claims, and civil legal disputes).
89
Some scholars might date the transformation to the previous decade. See James Alfini Et al.,
Medition Theory and Practice 1 (2001) (“[M]ediation’s prominence and expanded use emerged in the
United States in the late 1960’s as part of the ‘movement’ known as ‘Alternative Dispute Resolution’
(ADR,)”); but see id. at 12 (“As activities coalesced during the 1970’s, several important efforts to
improve practice and theory emerged.”).
90
Wayne D Burger, The Adversary Character of Civil Discovery: A Critique and Proposals for Change,
31 Vand L. Rev. 1295 (1978); C. Ronald Ellington, A Study of Sanctions for Discovery Abuse (1979).
91
See,e.g., Raymond G. Leffler, Dispute Settlement Within Close Corporations, 31 ARB.J.254 (1976);
Timothy S. Hardy & R. Mason Cargill, Resolving Government Contract Disputes: Why Not Arbitrate?,
34 FED. B.J.I (1975); Howard M. Haltzmann, The Value of Arbitration and Mediation in Resolving
Community and Racial Disputes Affecting Business, 29 Bus Law.1005 (1974); Laurence Silberman,
Will Lawyering Strangle Democratic Capitalism?, Regulation, Mar/Apr. 1978, at 15; Arbitration-
Commercial Disputes, Insurance and Tort Claims (A. Widiss ed., 1979); Robert F. Peckham, A
Judicial Response to the Cost of Litigation: Case Management, Two-Stage Discovery Planning and
Alternative Dispute Resolution, 37 RUTGERS L. REV. 165, 181 (2003) (discussing the early effort of
the business community in “Getting to Yes and Getting Rid of Juries”).

55
 to set of mechanisms a society utilizes to resolve disputes without resort to costly

adversarial litigation. It is an approach designed as a substitute to the rigorous and time

consuming litigation approach to dispute settlement. It is also described as an alternative

to adversarial process such as litigation that results in win/lose outcomes.

K. Aina Esq in giving a meaning to the acronyms stated that; “…the letters stand for

Alternative dispute resolution, a new approach to dispute processing. It refers to a range

of mechanisms designed without the need for formal judicial proceedings. In other words

ADR are those mechanisms which are used in resolving disputes faster and fairer without

destroying on-going relationships…”

Some forms of ADR include;

Early Neutral Evaluation (ENE) which is a technique whereby an impartial senior

lawyer or retired judge or magistrate may evaluate the likely outcome of a case if it were

to proceed to trial.

Mediation involves a neutral third party whose intervention facilitates communication

and negotiation between the disputing parties to foster a mutually agreed settlement

between them.

Conciliation is a process by which one or more independent person(s) is selected by the

disputing parties to facilitate a settlement of their dispute through a particular procedure.

Typically, conciliations are not reduced to writing, although if your dispute is conciliated

and you would like the settlement in writing, most centres will accommodate you.92

Expert Determination(ED) is also known as Valuation. Expert determination is a

voluntary process in which a neutral third party, who is usually an expert in the field in

92
Peter Lovenheim, Mediate don’t Litigate, How to Resolve Disputes Quickly, Privately, and
Inexpensively-Without Going to Court (2004).

56
 which the dispute arises, gives binding determination on the issues in dispute.

Negotiation is a process whereby two or more parties seek to reach a consensual

agreement. There may be no third party involvement.

Mini-Trial is a process whereby information is exchange before a panel compromising of

representatives of the disputants who are authorized to reach an agreement.

Arbitration is the ‘reference of dispute or difference between not less than two parties,

for determination after hearing both parties in a judicial manner by a person or persons

other than a court of competent jurisdiction’.

Mediation – Arbitration is a two-step dispute resolution process involving both

mediation and arbitration. In Med-Arb parties try to resolve their differences through

mediation, and where mediation fails to resolve some or all the area of the dispute, the

remaining issues are automatically submitted to binding arbitration. 93 The various forms

aforementioned are applicable depending on the nature and form of the conflict between

the parties. However in the Chapters following, the three major and most popular forms

of ADR which are arbitration, conciliation, and mediation are comprehensively

considered and discussed.

93
supra, National Open University, Alternative Dispute Resolution 1, 17 and 18.

57
 CHAPTER TWO

THE TOOL OF ARBITRATION IN ADR

2.1 Arbitration as a conceptual derivative tool of ADR: The tale of the vicar and the

vexed witness

“All wars are follies, very expensive and very mischievous ones. In my
opinion, there never was a good war or a bad peace. When will mankind be
convinced and agree to settle their difficulties by arbitration?”
-Benjamin Franklin

Arbitration is one of the numerous models of Alternative Dispute Resolution. Due to its

efficiency and uniqueness in settling disputes (especially of a contractual nature) it has gained

a prominent place in the international scene. This is coupled with the lack of litigation and

court systems on an international scale and on the international platform. However,

Arbitration just like litigation is adversarial in nature and tends to produce winners and

losers.94 In many respects Arbitration is a primary rather than an alternative method on the

international scene. It is important to as best as possible consider what Arbitration entails,

therefore unravelling how it is a model or tool of ADR, and how it is different from other

tools of ADR. In doing this, attempts will be made at identifying how ADR was uniquely

used in ancient times as a means of settling disputes.

Disputes as mentioned in Chapter 1 are inevitable; however they are unproductive in the

society. We are all freer, for example whatever our religion and more especially if we have

none, because Luther pinned his thesis to the door of the Wurzburg Cathedral. 95 The way

disputes were settled in the past was based on how the respective society saw civilization. It

94
A Guide to Arbitration and Dispute Resolution in APEC Member Economics, International
Commercial Disputes.
95
John Parris, Arbitration Principles And Practice, (1983), Granada, 2 and 3

58
is all of these that culminated in our present day civilization as we now know it. The earliest

method, dating back to Cain and Abel, is dignified by legal theorists with the title of self-

help. It is popular even among the pious; take for instance the great Council of the Church of

Adie whose members tried to resolve the filiosque controversy by resorting to grave violence.

The second method employed is not much different or better than the first. This consists [sic]

of submitting the dispute to somebody who has a bigger club than either of the disputants and

who is powerful enough to beat both over the head. The third and most civilised method of

settling disputes for those concerned was to submit their disagreement to a third party and

agree to abide by his decision. ‘Sometime in the Saxon or Old English, it was called a Love-

Day, because of the Quiet and Tranquillity that should follow the ending of the

Controversie’: Arbitrum redivivam (1694). This is what Paul described or advocated when he

called upon believers not to pursue their disputes before the courts of any state but to submit

them to the brethren.96

The original Roman concept of civil litigation in classical times was a submission to an

arbitrator whom both parties had agreed upon. ‘None would our ancestors permit to be a

judex’, wrote Cicero, ‘even in the most trifling money matter, unless the opposing parties

were agreed upon him.’ The English courts only began enforcing contractual obligations not

under seal in the sixteenth century, and then only as an action ‘on the case’ of the quasi-

criminal writ of trespass-what we now term a ‘tort’. Centuries before that, merchants [sic]

were enforcing amongst themselves oral and written contracts by arbitration.97

The word Arbitration is often wrongly used more often than not it is familiarly used with

regards to labour and employment disputes. It is used at times by government officials,

officials of labour union, politicians and the press to describe the reference of a labour dispute

96
Paris, Arbitration Principles and Practice, 4

97
Supra, 4 and 5.

59
by both employers and labour unions to a third party neutral (not being a judicial officer) for

intervention. It is trite to say that such a procedure is not, truly speaking, an arbitration in the

absence of an agreement between the parties. However, Stroud’s judicial dictionary 98 relying

on Romilly M.R. states that: ‘’An Arbitration is a reference to the decision of one or more

persons, either with or without an umpire, of a particular matter in difference between the

parties.’’

Again, Halsbury’s laws of England,99defines Arbitration as follows: ‘’An arbitration is the

reference of a dispute or difference between not less than two parties for determination, after

hearing both sides in a judicial matter, by a person other than in a[sic] court of competent

jurisdiction.’’ A person or persons to whom a reference to arbitration is made is called an

arbitrator or arbitrators, as the case may be. His or their decision is called an award. One or

more arbitrators may be constituted into an Arbitral Tribunal. The decision of such a Tribunal

is called an Award. Frequently used for large-value international disputes, arbitration is not

defined either in international conventions or in the UNCITRAL Model Law, and rarely in

domestic legislations.100

To best illustrate what arbitration entails it is at this point imperative to tell a fictional story.

The tale of the vicar and the vexed witness

98
Daniel Greenberg, Alexandra Milbrook, Fredrick Stroud, Stroud’s Judicial Dictionary of Words and
Phrases.

99
Halsbury’s laws of England, 3rd Edition, Vol.2, 2.
100
See UNCTAD International Commercial Arbitration Module at
http://www.unctad.org/en/docs/edmmisc232add38_en.pdf. Last accessed 6th July 2018. Some authors
attempt to provide definitions using the main characteristics of arbitration, see e.g., Alan Redfern and
Martin Hunter, Law and Practice of International Commercial Arbitration, 2d ed. (London: Sweet and
Maxwell, 1991), 3: ‘’[T]wo or more parties, faced with a dispute which they cannot resolve for
themselves, agreeing That some private individual will resolve it for them and if the arbitration runs its
full course…it will not be settled by a compromise, but by a decision, ‘’; W. Michael Reisman, W
Laurence Craig, William, and Jan Paulsson, International Commercial Arbitration (Boston: Foundation
Press, 1997), xxviii: ‘’a contractual method for the relatively private settlement of disputes.’’

60
There is a sudden shout in the supermarket as the lone witness who is also the seller of

merchantable fruits claims that he saw the village priest tuck a bundle of bananas under his

long black robe. This is followed by a murmur as the priest begins to walk away in swift and

strident steps. However a crowd quickly forms around him and the lone witness. As questions

begin to fly around the priest, with his head bowed and one hand raised to heaven with a

solemn voice which leaves everyone suddenly nervous and quiet, he swears in a sorrowful

voice that he had committed no theft that day or any other day since he took up the role of

priest and anyone who dared to as much as touch him would answer before his God. All

except the lone witness is cowed. A little child from the crowd quips in a shrill voice ‘’ I

wonder what Baba Msa, would say of all this.’’ Suddenly as if by a magical pull the crowd

surges towards Baba Msa’s house for the umpteenth time that month. It would be a semi-

private meeting between the disputants and Baba Msa himself, but the crowd was always

willing to hear his verdict, it came with a lot of parables, stories and joy for all the parties

involved.101

2.2 Legal Framework of Arbitration

By legal framework we mean legislation-law and rules that will guide the use of these

processes.102 A legal framework here is meant to be a set of laws or rules of laws that is used

as an anchorage for the effective operation of Alternative Dispute Mechanism.

Progress in this line of thought has already been made in some foreign and local jurisdictions.

In the [sic] UK, civil litigation has undergone radical changes as a result of the review of the

Civil Procedure Rules under the chairmanship of Lord Woolf. One of the major reforms

101
The story told here is based on the model of Jossey-Bass’ imagined story of prehistoric times in the
book A History of Alternative Dispute Resolution: The Story of a Political, Social and Cultural
Movement (2004).

102
E. O. Ezike, Developing a statutory framework for ADR in Nigeria, The Nigerian Judicial Review,
Faculty of Law, University Of Nigeria, Enugu Campus Vol. 10, (2011-2012):10.

61
introduced by the new Civil Procedure Rules of April 1999 is the development of active case

management which includes encouraging the parties to use ADR procedure if the court

considers it appropriate.103 Sanctions are normally imposed on parties who should have taken

the benefit of ADR mechanisms but failed to do so, and case law has equally followed the

new procedure.104In the United States, Congress in 1998 enacted the Alternative Dispute

Resolution Act, with respect to the use of alternative dispute resolution processes in the

United States District Courts.105In Nigeria, certain jurisdictions have gone a step further in

institutionalizing and enabling a proper framework for ADR. In Lagos State, for instance, the

legislature did this by enjoining the courts to promote reconciliation and amicable settlement

of disputes before them.106

The legal framework of Arbitration in some States is hereafter examined. The States are

selected based on the excellent legal framework and practice of Arbitration in some of them.

On the other hand, some others are selected based on the evident limitations of their legal

framework to show that there are opportunities for their growth and development when these

issues are tackled.

1. Austria

Austria has achieved prominence in arbitration in several ways, which feed together to create

a distinctive character for Austrian arbitration. Austria has various provisions for the
103
English Civil Procedure Rules, 1999, r.1.4.
104
See Dunnett v. Railtrack Plc. (2002) WLR 2434, where the Court of Appeal refused to make a cost
award against Miss Dunnett who had been unsuccessful in her action against Railtrack Plc. both at first
instance and appeal on the ground that Railtrack had refused her earlier offer to mediate the dispute.
See also Cable &. Wireless Plc. V. IBM United Kingdom Ltd (2002) EWHC (Ch.) 2059.
105
See Alternative Dispute Resolution Act 1998 available at http://www.epa.gov/adr/adra_1998.pdf. Last
accessed 6th July, 2018.
106
See section 24 of the High Court Laws of Lagos State, 2003 (as amended by High Court (Amendment
Law) 2012.

62
application of Arbitration. In addition to this Austria has also provided strong institutions and

individuals in the field arbitration. Austria, for example, produced some of contemporary

international arbitration’s leading practitioners, and the University of Vienna is widely

recognised as a leading academic centre for arbitration expertise. 107These things clearly

indicate the existence of a strong arbitration culture within Austria, and this is further

confirmed by the current Austrian legislation, which is based closely on the UNCITRAL

Model law, and thus overwhelmingly reflects contemporary views on how arbitration should

be regulated. The rules of arbitration of the Vienna International Arbitral Centre (VIAC

Rules) were revised in 2013. Since the 2006 version of the rules has proved successful

amongst practitioners, the basic structure of the proceedings remains the same; however, the

new rules introduce some interesting amendments on specific matters, mostly relating to the

duration and functionality of the proceedings. Firstly, the new rules address the issue of the

joinder of third parties (Article 14) and consolidation of proceedings (Article 15): these

reforms aim at making arbitration possible and effective, even when the dispute is complex

because of the number of parties involved or because of multiple claims. Secondly, the VIAC

rules regulate multi-party arbitration (Article 18). When more than two parties are involved,

it is sometimes difficult to constitute an arbitral tribunal, especially in cases where the

arbitration agreement states that each party has the right to appoint an arbitrator. Thirdly,

under Article 19, once an arbitrator is nominated, the Secretary General of VIAC confirms

the nomination if no doubts exist as far as impartiality and independence are concerned.

Fourthly, the new rules set forth an expedited procedure, which applies if the parties have

included in it their arbitration agreement or if the parties subsequently agree on its

application. The Austrian Arbitration Act, originally adopted in 2006, was revised in May

107
Legal Instruments and Practice of Arbitration in the EU, Directorate-General for Internal policies,
Policy Department Citizen’s rights and constitutional affairs C, 54.

63
 108
2013; the new version of the Act amends the procedure for setting aside an arbitral award

(with the exclusion of consumer arbitration) which must be brought before the Austrian

Supreme Court, which has exclusive competence for this kind of action. The Supreme Court

is now the only competent court for challenges against arbitral awards; when performing this

function, the Court exceptionally applies the same rules of procedure as a first court of

instance. The recent reform of the Arbitration Act is commonly perceived as an important

step towards time and cost efficiency and could have a significant impact on the popularity of

Austria as a seat of arbitration.

2. Belgium

Belgium is currently a State in transition with respect to its place within arbitration. In many

ways it is an ideal jurisdiction for arbitration, and particularly for international arbitration, as

the location of the European Union institutions in Brussels means that Belgium has one of the

most developed and culturally/nationally diverse groups of legal practitioners in Europe.

With the adoption in 2013 of the new arbitration law, however, based as it is very closely on

the UNCITRAL Model Law, and with the existence within Belgium of an active and

respected arbitral institution, the Belgian Centre for Mediation and Arbitration (CEPANI),

Belgium arguably now has the legal structure, the institutional support, and the local legal

expertise that it requires to grow significantly as an arbitral institution. Indeed where the new

Belgian law most notably departs from the UNCITRAL Model Law is similarly designed to

support, rather than hinder, arbitration, as it significantly limits the involvement of Belgian

courts in arbitral proceedings. It is important to note that this new law was developed both at

the instigation of the Belgian arbitral community, and with its active participation, and

Belgian respondents to the Survey on average regarded Belgium’s new law as more

108
The act (ErlautRV 2322 BlgNR 23. GP), approved by the Austrian parliament in May 2013, entered
into force on 1 January, 2014.

64
supportive of arbitration than respondents on Survey-wide regarded their own national

laws.109 As one of the most important changes, the new law empowers the President of the

Court of First Instance, when no institution has been appointed to administer an arbitration or

when the appointed institution is inactive, to decide issues relating to the appointment,

replacement and challenge of arbitrators (Article 1680, ss. 1- 4 of the Belgian Judicial Code).

The new law also provides that the Court of First Instance (specifically, the chamber located

at the seat of the Courts of Appeal in whose jurisdiction the place of arbitration is situated or

where enforcement is sought) will decide upon all requests in relation to the enforcement or

setting aside of arbitral awards. Importantly, decisions relating to annulment or enforcement

of arbitral awards will now only be challengeable directly before the Belgian Supreme Court

(Article 1680. s. 5, of the Judicial Code). The new Belgian arbitration law overwhelmingly

[sic] follows the UNCITRAL Model Law, and reproduces from the Model Law the grounds

for setting aside arbitral awards. As a result an arbitral award can be successfully challenged

in case of conflict with public policy, violation of due process or absence or invalid

arbitration clause. In addition to these provisions from the Model Law, however, Belgian law

also includes two additional grounds for setting aside an award: the absence or lack of

reasoning of the award and the fact that the award has been obtained by fraud (Article 1717,

s. 3, of the Judicial Code). Parties to an arbitration agreement can contractually waive their

right to challenge the award, as long as none of the parties is a Belgian national or a Belgian

Company (Article 1718 of the Judicial Code). This provision is similar to Swiss law and

constitutes a significant departure from French law, according to which, on the contrary,

nationals can also renounce to their right to introduce setting aside proceedings. All grounds

for setting aside must be invoked within 3 months of the notification of the award to the

parties (Article 1717, s. 4 of the Judicial Code).One unusual provision of Belgian law is that
109
On 24 June 2013, Belgium adopted a new arbitration law, which amended the 6th part of the Belgian
judicial Code on arbitration. The new law, based on the UNCITRAL Model Law, entered into force as
from 1 September 2013.

65
parties to an exclusive distributorship agreement concerning all or part of Belgian territory

are not allowed to submit their disputes to arbitration, unless Belgian law is chosen as the

applicable substantive law. This provision is set forth in Belgium’s Distribution Law of 27

July 1961, as amended in 1971, the purpose of which, it is widely believed, is to protect

distributors active in Belgium by limiting, to the degree possible under European Union law,

the submission of distributorship agreements to the non-Belgian law. Nonetheless, the

limitation this provision imposes on party freedom in this context has been recently

confirmed by the Belgian Court of Cassation. In Colvi v. Interdica,110 the Court of Cassation

held that distributorship agreements should be arbitrable, as long as the governing law is

Belgian law. In addition, in Sebastian. International Inc. v. Common Market Cosmetics,111 the

Court held that restrictions on the arbitrability of disputes arising out of distributorship

agreements are permissible, as the New York Convention does not impose any specific

obligation on States in this regard.112

3. England, Wales and Northern Ireland

England, Wales and Northern Ireland (hereafter ‘’England’’ and ‘’English’’ for convenience)

is one of the world’s leading arbitral jurisdictions. Although England’s arbitral expertise

remains overwhelmingly located in London, there is good reason to assert that a greater

number of the world’s leading arbitration specialists are located in London than in any other

city in the world. In addition, English law and caselaw regarding arbitration, while clearly not

uniformly assented to, has been very influential worldwide. With the increased participation

of barristers in international arbitration, this presumption has been increasingly questioned by

parties and arbitration practitioners from civil law jurisdictions in which the role of barrister

110
Judgement No JCO4AF2 (15 October 2004).
111
Case No C. 08.0503.N (14 January 2010).
112
Supra, note at 98, 61.

66
does not exist, as well as those from common law countries (including England, Wales and

Northern Ireland). In addition, the ‘Guidelines on Conflicts of Interest in International

Arbitration’ adopted by the International Bar Association (IBA) on May 22, 2004, which are

widely accepted as the most authoritative guide to conflicts of interest in arbitration, included

this situation in their ‘’Orange List’’ of situations that may give rise to a conflict of interest

that would justify precluding an arbitrator from serving in a proceeding. 113Importantly, even

recent English case law appears to reflect a less tolerant position towards conflicts of interests

arising from barristers sitting in the same set of chambers. Until recently, there was a general

rule under the English law providing that the organisation of the barrister’s chamber per se

did not raise justifiable doubts about an arbitrator’s impartiality, save when there existed a

personal connection between the barristers in question.114In 2006, however, in the case Smith

v. Kvaerner, the Court of Appeal held that a Recorder should not be permitted to sit in a case

in which one or more advocates were members of his chamber. 115 Section 69 of the English

Arbitration Act of 1996 (English Arbitration Act) permits an arbitral award to be challenged

in the High Court on the basis of the award’s findings on points of law. Where the Court

finds the challenge to be valid, it may remit the arbitral award to the tribunal for

reconsideration, or set the award aside in whole or in part. The decision to allow appeals on

points of law was a conscious deviation from the UNCITRAL Model Law, under which such

appeals are not allowed, and is a distinctive feature of the English Arbitration act (a similar

provision has been incorporated into the new Scottish Arbitration Act). The restricted nature

of the possibility of appeals was confirmed recently in Cottonex Anstalt v Patriot Spinning

Mills116. In this judgement the court acknowledged that when the right to appeal under
113
The IBA Council in Tokyo recently approved a revised version of the International Bar Association’s
Guidelines on Conflicts of Interest in International Arbitration (the Guidelines).
114
The Laker Airways case [2000] 1 WLR 113
115
Smith v. Kvaerner Cementation Foundations Ltd. [2006] APP. L.R. 03/21
116
[2013] EWHC 236.

67
Section 69 of the English Arbitration Act is invoked by a party, the appeal must concern

issues already resolved in the arbitration. The respondent may not raise additional issues in

the appeal, although he raises additional issues if they are connected with the facts already

established by the arbitral tribunal. Third party funding (TPF) in arbitration involves the

funding of one party’s involvement in arbitral proceedings by a party that has no pre-existing

interest in the resolution of the underlying dispute. In exchange the funder will receive a

portion of any compensation awarded to the funded party, and where no compensation is

awarded will usually receive nothing. English law has traditionally been very restrictive

regarding TPF, the rationale for these restrictions most famously being expressed by Lord

Denning in Re Trepca Mines (No 2)117: ‘’The reason why the common law condemns

champerty is because of the abuses to which it may give rise. The common law fears that the

champertous maintainer might be tempted, for his own personal gain, to inflame the damages,

to suppress evidence, or even to suborn witnesses.’’

4. France

France is one of the most famous and well-established arbitral jurisdictions in the world.

Moreover, rather than merely having a practical prominence within arbitration, French courts

and the French arbitral community are known for a willingness to espouse comparatively

innovative approaches to the regulation of arbitration, which in some cases have strongly

influenced arbitration throughout the world. In principle, an arbitration agreement is binding

upon the signatories who expressly consented to be bound by its provisions. This apparently

strict rule, however must be understood in the context of a 2012 judgement by the Cour de

Cassation, in which it was held that a non-signatory was bound by an arbitration clause

included in a contract because the non-signatory was ‘’directly involved’’ in the performance

of the contract. Importantly, the Court did not also specify whether or not the non-signatory

117
[1963] 1 Ch 199.

68
had knowledge of the inclusion of an arbitration agreement in the contract. 118 The focus of

insolvency law on ensuring the equitable treatment of all creditors of an insolvent entity

traditionally led to the view that insolvency terminated the validity of all arbitration

agreements. The right of an insolvent party to arbitrate was established by the French Cour

de Cassation in the Pirelli case, when the court confirmed that access to justice through

arbitration is governed by the same principles as apply in cases concerning access to court

proceedings, as set out in Article 6 of the European Convention on Human Rights. 119On 26

September 2012, in a decision not involving an arbitration clause (the Rothschild case), the

French Cour de Cassation refused to enforce a unilateral forum selection clause that required

one party to litigate in the Courts of Luxemburg, while the other was permitted to select

either the domicile of the other party or ‘’any other court of competent jurisdiction’’. 120 In its

decision the Court emphasised in particular the ‘’protestative’’ nature of the clause, meaning

that the clause did not truly impose any obligations on the bank (since it could select any

jurisdiction at all in which to litigate). As a result, the Court held that the clause was contrary

to Article 23 of Regulation No. 44/2001 of December 2000 on jurisdiction and the

recognition and enforcement of judgements in civil and commercial matters (the Brussels I

Regulation).121While the Court’s interpretation of the Brussels’s I Regulation has been

questioned, the Rothschild case has important implications for unilateral arbitration

agreements which bind only one party to arbitrate, while leaving the other party free to select

any form of dispute resolution. There are numerous other countries with legislative

frameworks on Arbitration that are worthy of emulation. However, the purport of these

provisions on the legislative framework of Arbitration as practised by States is not to cover a

118
Cass. 1 Civ., November 2012; ibid 16, 68.
119
Cass. Civ. 1, 28 March 2013, Pirelli & C. v. Licensing Projects, no 11-27770.
120
Cass., Civ. 1, September 2012, Mme X v. Private Bank Edmond de Rothschild Europe, no. 11-26022
121
OJ L 12/1, 16.1.2001.

69
lengthy number of States but to give broad exemplary descriptions of how the standard

framework of arbitration by States should appear. Thus, the legal framework applicable to

arbitration includes the laws of one or more States connected to the proceedings or to the

parties, as well as the 1958 New York Convention and several other international and

transnational sources of law. However, national law, particularly that of the ‘’seat’’ of the

arbitration (i.e. the State in which the arbitration is legally located) is the cornerstone of any

arbitration.122

2.3 Contemporary features of Arbitration

Among the numerous characteristics of Arbitration, mention will summarily be made of the

following characteristics:

1. Informal Character: The parties have absolute freedom to determine variants of the

arbitral proceedings. They may determine the venue, the language and the rules of arbitration.

The arbitration proceeding can also be held via web-cam or by means of conference calls;123

2. Jurisdiction of the courts is removed: Jurisdiction of the courts is removed when signing

by the parties the arbitration agreement. Also, the profession of the [sic] arbitrator is not

limited to people with specific training in law or in economics. This represents an advantage

due to the flexibility and lack of coercion, characteristic of this procedure. However, in order

to provide confidence to the parties who will resort to it, it is believed that the arbitrator’s

experience and reputation is of special importance. A reputation on honesty, integrity and

wisdom are important characteristics for an arbitrator and that can benefit the parties. In order

for [sic] the arbitration procedure to work both parties must have confidence in the integrity

and skills of the arbitrator. In general, as the arbitral award is enforceable, the parties must

122
Ibid, at 98, 8.
123
Eugene Bucher, Why Arbitration, 6.

70
ensure that they choose the best person (arbitrator) to manage and render the most favourable

award.

3. Flexibility: In appointing arbitrators, the parties have [sic] the possibility to nominate their

arbitrator or arbitrators. This is unlike litigation where the parties must accept the judge and

the procedure that will be imposed on them by the court or litigation system. There is the

voluntary agreement coupled with flexibility to submit to private, non-governmental dispute

resolution process.124

4. Celerity: The issuance of an arbitration award is made within a period not exceeding 6

months from the date of constitution of the arbitral tribunal, unlike the proceedings before a

court, where until the expiry of six months, you may not set out a first trial term.

5. Transparency: The submission of evidence is made during the hearings, in order that the

parties concerned have direct access [sic]. Everything is made plain and obvious during

proceedings and parties are not inclined to spring surprises.

6. Low cost and equity: Due to the settlement period and the nature of this procedure, the

costs are much lower compared to the proceedings before the courts. Costs are awarded to the

parties through appreciation, depending on whether the complaint is upheld in whole or part.

7. Fast communication: The arbitral award shall be communicated to the parties not later

than one month from the date it is made. The award is final and binding on the parties.

8. Predictability and Privacy: [sic] There is a high degree of anticipation of the rendered

award, considering that the parties agreed on the applicable rules and have largely control of

the arbitration proceedings. The hearing record of the arbitral tribunal are not public, so the

parties can treat or solve a problem without prejudice to their image or to the public

124
Adam Rattray, Key Features of Arbitration, September 18, 2014, Danube Initiative Summer School,
Budapest, Hungary.

71
perception of it. Also arisen from the confidential nature of the arbitration proceedings, the

arbitration awards are not published, so they cannot be case law, in the sense of being used by

other parties in resolving their disputes or by referring to them by the arbitral tribunal.

9. The enforcement of the award: The party against whom the award is rendered shall

voluntarily carry out the award, failing that, the arbitral award will constitute a writ of

execution in the same manner as a court judgement. 125

2.4 Arbitration from an African perspective

Here Africa is used for a case study because of its peculiarities when it comes to the issue of

ADR in general. It should first be taken into consideration that ancient African communities

were known to employ peaceful and efficient methods to resolve conflicts whenever they

arose. However, following colonization and the resultant effects of neo-colonization which

still subsists in many African countries today, a major effect was the imposition of foreign

culture and of course foreign methods of resolving conflicts. When commercial and

transnational integrations are been bedevilled by conflicts and inadequate methods of solving

those conflicts it becomes necessary once again to begin reconsidering new ways of solving

recurrent problems by employing old methods. Coupled with these is the rich opportunities

contained in the continent: the vastness of its culture, the wealth of resources to be tapped, the

outstanding intellectual opportunities, the profoundness of its manpower. All of these

contained therein being hampered by incessant conflicts.

Arbitration/ADR has always been part and parcel of the traditional African Justice Delivery

System. It has been with us from time immemorial. With the advent of the colonialists to the

continent, litigation as another form of dispute settlement was introduced. This no doubt

explains the reason why older African lawyers are litigators and approach disputes from that

125
supra, note at 7.

72
perspective.126 It was not until the early 1950’s that some African nations began to enact laws

on Arbitration as a system of dispute resolution, different from, but sometimes, co-opting the

traditional African Arbitration principles and practices. Traditionally, Africans have always

had customary means of resolving conflicts and disputes through means other than formal

litigation.127In pre-colonial Africa, disputes were based on the indigenous or customary laws

of the various ethnic groups and their sub divisions. These were home grown in Africa and

different from the Western inspired laws that were introduced in the advent of

colonialism.128During this period, communal peace and harmony was of prime importance as

such disputes were rapidly resolved as quickly as they rose.

As regards the argument as to whether ADR originated originally from Africa, although ADR

may not have been legally laid down in traditional African societies resolving disputes by

amicable means was generally the preferred option. In most instances it was the Chief, Elders

and Family Heads [sic] that confer with the relevant parties in seeking peaceful settlements to

disputes.129By dint of their position and experience, they commanded enormous respect and

were trusted to be neutral to mediate between disputing parties for an amicable solution. It is

not surprising then that some adherents of ADR often refer to ADR as African Dispute

Resolution.130

126
Dr. C. J, Amasike Ph.D [Kent], DBM [Jersey], DPG [Harvard], FIPA, FCI.Arb, Cooperation
Between African Arbitration/ ADR Centres and Institutions for Rapid Economic Development of the
Continent, Arbitration and Alternative Dispute Resolution in Africa, (2012) 1.
127
Kingsley Kwabena Kessie Affrifah, A Tool For Conflict Resolution in Africa-Ghana as a Case study,
March 2015, 32.
128
Mwenda, W.S., Paradigms of Alternative Dispute Resolution and Justice Delivery in Zambia,
Doctoral Thesis University of South Africa. November 2006, 4.
129
Brainch, B., ADR in the World: an African perspective on Community Mediation, CDRC Regional
Conferences 2006-2007: at Fordham Law School NY Unified Court System ADR programme: 5
January, 2007.
130
Dieng. A., ADR in Sub-Saharan African Countries in Revenue Africaine du Droit des Affaires no 1
2010.

73
 It seems that soon, each and every country in Africa will shelter at least one arbitration or

mediation institution.i But the question here is as to what extent has African countries fully

embraced arbitration? It has been observed that the ‘’institution of arbitration has traditionally

been seen by the developing world as one of the tools employed by former colonial

governments and Western corporations to secure advantages over their contracting partners.

States and corporations in developing countries have therefore tended to regard arbitration

with a degree of mistrust’’. In the same vein, Sempesa contends that:

African countries rightfully feel threatened by the overwhelming power of

certain multinational corporations whose financial resources surpass their
own and whose tentacles extend into many different countries. Whether
such fears are well grounded or not, they obviously will produce feelings
of insecurity and dependence and a deep suspicion of a hidden agenda
essentially for the benefit of big business. Without sufficient information
on how the arbitral process benefits them immediately, African lawyers
and their governments.’ are understandably unwilling to get too involved
in a process which they perceive as largely benefiting the trading entities
of the west

Though many African countries have legal systems that recognize and promote arbitration, it

has yet to be fully embraced as a better alternative to traditional litigation in many countries.

At the international level, the benefit of arbitration in resolving commercial disputes is

increasingly becoming clearer, and it is generally acknowledged that an amicable ‘’win-win’’

resolution for parties to a commercial dispute tends to foster international cooperation and

promote international investments.’’131 Chronologically, the first ADR institution to be

established on the continent is the Cairo Regional Centre for International commercial

Arbitration, founded in 1979 following a decision of the Asian African Legal Consultative

Committee (AALCO), an organization created in 1956 in Bandung and whose seat is

currently in New Delhi. Under the impulse of AALCO, three other centres were established

(in Kuala Lumpur, Malaysia; Lagos, Nigeria; and Tehran, Iran) but it is fair to say that Cairo
131
See generally the activities of the International Centre for Settlement of Investment Disputes, online:
http://www.worldbank.org/icisd/about/about.htm. Last accessed 6th July, 2018.

74
and Kuala Lumpur Centres are up till now the two flag posts among the four. The Cairo

Centre, initially supported by the Egyptian Government, has succeeded in purchasing its own

extensive premises and is now financially independent. Some 15 years later, arbitration

centres started to emerge in other countries on the planet. In Africa, there are various

statutory enactments on arbitration. For instance, we have the following arbitral enactments

in some selected countries in Africa:

South Africa- Arbitration Act 1965;

Ghana- Arbitration Act, 1961;

Zimbabwe- Arbitration Act 1996;

Kenya- Arbitration Act 1995;

Algeria- Arbitration Law 1993;

Egypt- Law Concerning Arbitration 1994;

Madagascar- Arbitration Law 1999;

Senegal- Arbitration Law 1998;

Uganda- Arbitration and Conciliation Act 2000; and

Nigerian- Arbitration and Conciliation Act, 1990132

If Kenya, Zimbabwe and Nigeria are taken as examples of UNCITRAL Model Law countries

in Africa then what these countries have achieved and could achieve with regard to

institutional support for conflict resolution in Africa should be encouraged and emulated

elsewhere in the African region. In Kenya the Attorney General has just announced the
132
Chief Joe Kyari Gadzama LL.B [UNIMAID], SAN, MFR, MCI. Arb, Integration of Arbitration,
Mediation and Conciliation in Dispute Resolution Management, Arbitration and Alternative Dispute
Resolution in Africa, Johannesburg, South Africa, 2006, 239-240.

75
possible establishment of a Centre in Nairobi. Apart from that, there already exists in Kenya a

local branch of the UK Chartered Institute of Arbitrators. It is very active in the training of

arbitrators and mediators and in fast-tracking membership of the institute at all levels- as

associates, full members, fellows and chartered arbitrators. It is self-funding with a declared

vision: ‘’to be a National and Regional Leader in the promotion and education of

professionals involved with arbitration and other forms of alternative dispute resolution’’.

The Chief Justice is the Institute’s patron. Judicial support for arbitration and ADR in Kenya

is improving, making it more difficult for arbitral rulings and awards to be set aside. The

Institute publishes a Newsletter that contains summaries of recent court decisions on

significant arbitral rulings and awards. In the landmark case of Epco Contractors v. United

States International University, the Chief Justice dismissed an application to set aside an

arbitral ruling in which the arbitral tribunal declined to summon a witness for a party but left

it open to summon its own witness.

Arbitration and ADR in Africa is one of the catalysts for a new wind of change which is

beginning to blow across Africa. This wind of change is driven by the stark realization that

for Africa to progress there is no option but to create an environment that is conducive for

both the Domestic and International private sectors to invest and trade in Africa and, thus,

generate job opportunities for millions of people.133In respect of this, this is what the revered

Justice Learned Hand had to say in ’’the Spirit of Liberty- a collection of extra-judicial

papers (1952)’’- ‘’I often wonder whether we do not rest our hopes too much upon

constitutions, upon laws and upon courts. These are false hopes; believe me; they are false

hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no

law, no court can ever do much to help it.’’

133
supra, note at 80-81.

76
Taking a comparative study of some African States, for example, for South Africa it is

submitted that there are three main factors preventing South Africa from successfully

promoting herself as a suitable venture for arbitration, and international commercial

arbitration in particular. The first relates to major defects in arbitration legislation. The

second is that arbitration, when politicians are prepared to consider it all has ironically

become, in South Africa, a sensitive political issue. Thirdly, as explained above, the

arbitration procedure often or possibly mainly applied in South African domestic arbitrations

relating to commercial disputes involving substantial amounts are out of line with generally

accepted best practice in the context of international arbitrations. In Uganda, the more

worrying trend was the fact that by the early 90’s there was increasing resistance from the

conservative members of the Bar and Bench who classified ADR as ‘’ouster the jurisdiction

of the court.’’134 The judiciary in Uganda can be said to be inefficient. To understand the

inefficiency of the judiciary, we must study the environment within which it operates. First

the judiciary is a default structure which is put in place by the Government. Secondly,

Ugandan government tax basket contribution to the judiciary has never been close to 60% of

the judiciary budget estimate. The direct result of this is that the number of judicial officers

i.e. judges has always been 80% short of the national requirement. 135These problems might be

blessings in disguise giving ADR an opportunity to find prominence.

The point is if we are to develop a social and economic infrastructure built on a continental

scale, then we must start by appreciating that we do not have a unified legal heritage. The

practical solution to the problem is the development of shared continental standards in

dispute resolution and of a common practice and procedure in African dispute resolution

134
David Kayondo v. Co-operative Bank Supreme, CA 1993 Vol. 1 KALR 83.
135
Jimmy M. Muyanja, LL.M [N.U.I.], MCI.Arb, The Growth of ADR in Uganda: Lessons for Africa,
Arbitration and Alternative Dispute Resolution in Africa, (2016), 118.

77
techniques. Therein may lie the common bond so urgently required. 136Therefore firstly, there

must be an express commitment to the task of standardizing Africa arbitral practice. We

should call upon all interested bodies in Africa by which is meant its legal and business

communities, quite apart from Government, to endorse such a commitment.

Second, we must identify the creative source for such an initiative. That source is surely to be

found in the interaction between arbitral institutions that have emerged throughout Africa.

They ought to be made conscious of their responsibility to develop a standardized system

receptive to African needs and compatible with world commercial dispute resolution.

Thirdly, there must be an agreement as to the content of the common framework. About that

there cannot be much debate. Africa must either commit to the dispute resolution regimes

elaborated by UNCITRAL or those procedures followed in the OHADA uniform regime. The

significant number of countries on our continent which have already developed a statutory

framework incorporating the UNCITRAL Model Law probably indicates that the desired

further development will lean in that direction. But, nonetheless, there is considerable work to

be done in adapting the model law and its rules into one system endorsed by all or the

overwhelming majority of the continent’s member states.

Fourth, we must remember that a common framework is not enough. What is desperately

required is the emergence of a core of arbitrators in Africa who have shared a common

training and who have begun to share a common experience as arbitrators and disputes

resolution practitioners. We should make the conscious decision to foster the development of

African arbitrators and demand that they take their rightful place in international disputes in

general and those which touch on Africa.137

136
Michael David Kuper, B.A., LL.B [Rand}, S.C, Harmonization of Arbitration Laws and creation of
continental standards for Africa, Arbitration and Alternative Dispute resolution in Africa,(2015) 9.
137
supra, note at 10-11.

78
2.5 International provisions and application of Arbitration

It would be trite to approach this from a commercial aspect to streamline the application of

dispute settlement as regards international arbitration. The United Nations Commission on

International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration

(‘’UNCITRAL Model Law’’) (UNCITRAL Arbitration Rules) and the New York

Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (‘’the

New York Convention’’) are regarded as the two pillars of international commercial

arbitration.138The Model Law is the result of the comprehensive study by UNCITRAL into

arbitration laws throughout the world with a view to providing a Model Law on arbitration

which would lead to uniformity/harmonization of the laws relating to International

commercial arbitration139. The Law was adopted on the 21st day of June 1985 by the United

Nations General Assembly. The perception in the international business world is that

agreeing to arbitrate in a model law jurisdiction secures a minimum of rights in arbitral

proceedings and reduces surprises. Indeed Model Law conformity is advertisement to attract

international business. The Model Law limits judicial intervention in arbitral proceedings

generally referred to as the principle of non- intervention. Article 5 of the Model Law states

thus:‘’In matters governed by this Law no court shall intervene except where so provided in

this Law’’140The intent of Article 5 was to exclude any general or residual powers given to

the courts within the domestic system and which are not listed in the Model Law. Foreign

parties were therefore protected from surprises. It was also intended that Article 5 would

138
Adedoyin Rhodes-Vivour (Mrs), Arbitration and Alternative Dispute Resolution As Instruments For
Economic Reform, delivered at the Nigerian Bar Association (Section on Business Law) Maiden
Conference held in Abuja on 27th-29th March 2006, 6.
139
The General Assembly United Nations in its resolution 40/72 of 11 th December 1985 recommended
‘’that all States give due consideration to the Model Law on International Commercial Arbitration in
view of the desirability of uniformity of the law of arbitral procedures and the special needs of
International commercial Arbitration practice.’’
140
Generally referred to as the principle of non-intervention which has also been opted into various
National Laws including the English Arbitration Act section (c) 1996.

79
accelerate the arbitral process by disallowing delays caused by intentional tactics associated

with the court system. The adoption of the model law worldwide signified a new era in

international commercial arbitration. In recognition of the growing use of ADR and the

enactment of laws by states to meet the demands of practice UNCITRAL continues its

mission to improve the legal framework of international dispute settlement and its recent

work includes the review of the provision of the Model Law on the form in which interim

measures and preliminary orders should be presented by arbitral tribunals and the recognition

and enforcement of interim orders. The New York Convention made in New York in June

1958 obliges the courts of signatory states to defer to the arbitral jurisdiction when an action

is brought under a contract containing an arbitration clause and to recognize and enforce a

foreign award without any review of the arbitrator’s decision subject to limited

exceptions.141Alan Redfern and Martin Hunter describe the recognition and enforcement

procedures under the New York Convention as simple and effective. 142The New York

Convention has been described as ‘’the single most important pillar on which the edifice of

international arbitration rests’’ and as a Convention which ‘’perhaps could lay claim to be the

most effective instance of international legislation in the entire history of commercial

law’’143The purpose and effect of the New York Convention is to make it easier to enforce an

arbitration award delivered in a different country party to the convention than it is to enforce

in country A a judgement delivered in country B. The New York Convention being a treaty

imposes serious obligation on signatory states. Non application of the New York Convention

by the courts of signatory states constitutes a breach of the treaty obligations. Justice

141
See Article II & V of the New York Convention.
142
Alan Redfern and Martin Hunter, Law and Practice of International Commercial Arbitration, 455,
paragraph 10-22.
143
See Mustill, ‘’Arbitration: History and Background’’ (1989) 6 Journal of International Arbitration 43;
see also Schwebel, ‘’A celebration of the United Nations’ New York Convention’’ (1996) 12
Arbitration International 823. See also Wetter, ‘’The Present Status of the International Court of
Arbitration of the ICC: an Appraisal’’ (1990) 1 American Review of International Arbitration 91.

80
Schwebel a former Judge of the international Court of Justice puts the matter succinctly when

he stated thus:

When a domestic court acts, it acts as an organ of the State for whose
actions that state is internationally responsible. When a domestic court
issues an anti-suit injunction blocking the international arbitration agreed
to in a contract, that court fails ‘to refer the parties to arbitration…’ In
substance, it fails anticipatorily to ‘recognise arbitral awards as binding
and enforce them…’ and it pre-emptively refuses recognition and
enforcement on grounds that do not, or may not, fall within the bounds of
Article V. A party to a treaty is bound under international law- as codified
by the Vienna Convention on the Law of Treaties- to perform it in good
faith. As the Vienna Convention prescribes, a party may not invoke the
provisions of its internal law as justification not to perform a treaty [sic]. A
treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context in light of its
object and purpose. The object and purpose of the New York Convention
is to ensure that agreements to arbitrate and the resultant awards – at any
rate, the resultant foreign awards – are recognised and enforced. It follows
that the issuance by a court of an anti-suit injunction that, far from
recognizing and enforcing an agreement to arbitrate, prevents or
immobilize the arbitration that seeks to implement that agreement, is
inconsistent with the obligations of the state under the New York
Convention. It is blatantly inconsistent with the spirit of the Convention.
It may be said to be inconsistent with the letter of the Convention as well,
at any rate, if the agreement to arbitrate provides for an arbitral award
made in the territory of another State. There is room to conclude that an
anti-suit injunction is inconsistent with the New York convention even
when the arbitration takes place or is to take place within the territory of
the Contracting State provided that one of the parties to the contract
containing the arbitration clause is foreign or its subject matter involves
international commerce.144

There are other international conventions relevant to international commercial arbitration.

They include the European Convention on International Commercial Arbitration of 1961,

the Washington convention of 1965 (ICSID Convention) Moscow Convention of 1972, the

Panama convention of 1975, the Ohada Treaty of 1993, the North American Free Trade

Agreement of 1994 (NAFTA). The ICSID Convention is particularly important as it has

144
Stephen M. Schwebel: Justice in international law, further selected writings of the former judge and
president of the International Court of Justice.

81
been ratified by over 140 states and various international agreements make provision for

ICSID arbitration.145 There are also bilateral treaties dealing with arbitration.

Arbitration proceedings are subject to the mandatory provisions of the law applicable to the

arbitral proceedings. The international infrastructure also includes the laws of the various

states where international arbitrations are conducted. The various international institutions

that administer arbitral proceedings or give support in some form or the other are also part of

the international infrastructure. A number of these institutions have drawn up institutional

rules to guide and assist parties in the conduct of the proceedings. The foremost international

institutions include the various Regional Centres set up under the auspices of the Asian

African Legal Consultative Committee which includes the Lagos Regional Centre For

International Commercial Arbitration, International Court of Arbitration of the International

Chamber of Commerce (“ICC”), the International Centre of Dispute Resolution (“ICDR”),

the American Arbitrators Association (“AAA”), the Chinese International Economic and

Trade Arbitration Commission, (“CIETAC”) the Chartered Institute of Arbitrators (CIArb)

and the Centre for Effective Dispute Resolution(CEDR) are renowned internationally for the

education and training of arbitrators and alternative dispute resolvers.

In accordance with the fundamental principle of party autonomy in arbitration parties’ have

the freedom to adopt the rules of these bodies or even a modified format for the conduct of

their arbitration. In arbitral proceedings parties are generally free to agree on how evidence

is to be led subject to any mandatory provisions of the law applicable to the proceedings. In

most jurisdictions the strict rules of evidence are not applicable to arbitral proceedings. The

International Bar Association (IBA) has drawn up IBA Rules of Taking Evidence in

International Commercial Arbitration. The IBA felt they need to have rules of evidence

145
The ICSID arbitration is meant to deal with disputes arising out of investments made in a contracting
state by nationals of other contracting states either under an agreement with the state itself or the state
agency.

82
which could be used in international arbitration irrespective of the legal background of the

parties. The rules are increasingly used in international arbitration. Furthermore various

international organizations have drawn up codes of ethics to guide arbitrators and alternative

dispute resolvers in the conduct of the proceedings.146

146
In 2004 the International Bar Association published Guidelines on Conflicts of Interest in
International Arbitration. See www. Ibanet.org/pdf/internationalarbitrationguidelines. The Pdf (page
85) material is available at this link. Article by Phillip Capper.

83
 CHAPTER THREE

THE TOOL OF MEDIATION AND CONCILIATION IN ADR

3.1 Mediation and Conciliation as ADR Tools: The Tale of the Neutral Village

between Twin Cities

“Discourage litigation. Persuade your neighbours to compromise

whenever you can. Point out to them how the nominal winner is
often a real loser- in fees, expenses, and waste of time.”
-Abraham Lincoln

Mediation and Conciliation are two close-knitted tools of ADR which have been subject to a

lot of debate by eminent authors and legal scholars. While some scholars have argued that

there is no basic difference between them and whatever notion of characteristic difference

evinced in the mind of anyone should be done away with, others are of the opinion that the

distinction must remain since to the extent or degree of their procedural application there are

evident differences. However despite the strength of these arguments, within the purview of

this work the UNCITRAL provision which identifies them as being one and the same is

adopted. By virtue of the UNCITRAL Model Law147 on International Commercial

Conciliation, conciliation is defined as: ‘’…a process whether referred to by the expression

conciliation, mediation or an expression of similar import, whereby parties request a third

person or persons (‘’the conciliator’’) to assist them in their attempt to reach an amicable

settlement of their dispute arising out of relating to a contractual or other legal relationship.

The conciliator does not have the authority to impose upon the parties a solution to the

dispute.’’148

147
The UNCITRAL Model Law on International Commercial Arbitration was prepared by UNCITRAL,
and adopted by the United Nations Commission on International Trade Law on 21 June 1985. In 2006
the model law was amended, and now includes detailed provisions on interim measures.
148
UNCITRAL Model Law on International Commercial Conciliation with Guide to Enactment and Use
2002 (United Nations 2002).Available at www.uncitral.org. See also Dobbins ‘’UNCITRAL Model

84
The broad nature of the definition indicates that there is no intention to distinguish among

procedural styles or approaches to mediation or conciliation. However, it should be noted that

a distinction can be found between the two processes in Section 4 of the Model Law which

states that ‘’ The conciliator may, at any stage of the conciliation proceedings, make

proposals for the settlement of the dispute.’’ 149Similarly, the Centre for Effective Dispute

Resolution in the United Kingdom defines conciliation as ‘’a process where the neutral takes

a relatively activist role, putting forward terms of settlement or an opinion on the

case.’’150Therefore, it can be stated that the conciliator has a more interventionist role in

bringing the two parties together and can make proposals for settlement to the parties which

they are free to choose to accept or reject. Unlike, for example an arbitrator, a conciliator

does not have the power to impose a settlement. As noted by Bunni: ‘’Conciliation is a more

formal process than mediation and it could generally involve the engagement of legal

representatives, thus making it a more expensive process than mediation. There is, however,

the added advantage that should no amicable solution be reached, the conciliator has the duty

to attempt to persuade the differing parties to accept his own solution to the dispute.’’151

The terms mediation and conciliation continue to be used interchangeably and the difference

between conciliation and mediation is not very clear.152 As noted by Dowling Hussey: ‘’... the

conflicting and contradictory definitions which are used in these two distinct areas tend to

create some degree of uncertainty as to what precisely is meant by the phrase. Logic would

Law on International Commercial Conciliation: From a Topic of Possible Discussion to Approval by

the General Assembly’’ (2002) 3 Pepp Disp Resol L J 529.
149
ibid at Article 6.4.
150
See www.cedr.co.uk. Last accessed on 6th July, 2018.
151
Bunni The FIDIC Forms of Contract (Blackwell Publishing 3rd ed., 2008) at 445.
152
The Labour Relations Commission‘s website describes conciliation as a voluntary mediation process.
See www.lrc.ie. Last accessed 6th July 2018.

85
suggest that both users and practitioners are less likely to make use of, or recommend,

something that they do not fully understand because of such confusion.’’153

However the argument presented within this work is that for ease of use and flexibility of

application all such unnecessary interpretations should be done away with. Here to

understand the meeting point between mediation and conciliation based on their

characteristics and how they are understood it is best to tell a fictional story.

The tale of the neutral village between twin cities

There were two cities lying side-by-side known for their constant resort to war and their

unending strife. But this in fact was not their biggest problem. Their biggest problem was

that in the midst of all this no one ever knew what caused the war. The cities were made by

brothers, twin brothers born of the same mother and no one could understand the cause of

their unending disagreements. On a certain sunny day delegates were sent from one city to

another, two delegates bearing the same message to the separate kings ‘’lay down your

weapons, I have been right all along’’ and true to the myth of how similarly twins think the

last resort was the continuation of the unending strife and a clampdown of allowing any

citizens from the separate towns to cross into their respective borders. But who could ever

imagine that a little piece of ground in the middle of both villages, not as big as either town

but almost as big as either one became the neutral ground where citizens of either town

regularly met to express their hopes of the coming peace. With the passage of time, and not

so long at all, the neutral village became an overpopulated ground as the need for peace,

and the neutrality of that ground made the citizens of either town abandon every desire to go

home. So it was that with the passage of time, and not so long at all the citizens of either

153
Hussey-Dowling, Conciliation: Coming out of the shadows? (2009) 16(3) CLP 48.

86
town abandoned their warring towns and elected a leader on the neutral ground to broker

talks of peace. The talks of peace kept them peaceful in that neutral ground for many years

and many more to come. No one has come to understand why the neutral ground has

remained ever so peaceful. But a wise man once noted that it was because breaking the talks

of peace would make the neutral ground less peaceful and the constant talks of the talks of

peace for so many years by the citizens who no longer wanted to war is what had kept the

peace.154

The fictional story above is an attempt to illustrate that most often than not, it is common and

expected of people to seek ways to end conflicts. Most people would prefer a short peace,

talks of peace or even an uncertain peace rather than unending war. This is the basis of the

rationale behind mediation and conciliation which are basically attempts to find a neutral

ground where both parties can broker an agreement that has elements of peace or whose aim

is to find peace.

Mediation is a voluntary, party- centred and structured negotiation process where a neutral

third party assists the parties in amicably resolving their dispute by using specialised

communication and negotiation techniques.155 Mediation is a voluntary (unless ordered by a

court), non-binding, private dispute resolution process in which a neutral person, the

mediator, helps the parties try to reach a negotiated settlement. Mediation is voluntary in the

sense that, in the majority of cases, it takes place as a result of the parties agreeing to enter

the mediation process. It cannot happen if one or more of the parties refuse to participate.

154
The story told here is based on the model of Jossey-Bass’ imagined story of prehistoric times in the
book A History of Alternative Dispute Resolution: The Story of a Political, Social and Cultural
Movement (2004)

155
Mediation and Conciliation Project Committee, Supreme Court of India, New Delhi, Concept and
Process of Mediation.

87
There is of course, some non-voluntary mediation. If parties are required by contract to

mediate before arbitration or litigation, then they may do so non-voluntarily.156

The meaning of mediation and conciliation may be the same, or they may differ depending on

the country or dispute sector involved. Conciliation is a judge-initiated practice of guiding the

litigants (usually in a civil suit) to create an equitable, negotiated ‘settlement’ instead of

proceeding to trial. Conciliation sometimes incorporates suggestions for resolution.157

3.2 Legal Framework of Mediation and Conciliation

Some information is here presented on the mediation legislation in some jurisdictions.

1. Austria158

Mediation has been regulated in Austria since before European activities began and the

Directive was initiated. The Austrian Act on Mediation in Civil Matters (‘Bundesgesetz über

Mediation in Zivilrechtssachen, Zivilrechts-Mediations-Gesetz’), (‘the Mediation Act’) came

into effect in 2004. It established an Advisory Council for Mediation at the Federal Ministry

of Justice and regulated the requirements and procedure for entries in the Mediation Register,

the listing of registered mediators; it established the requirements and the procedures for

training institutes and training courses, and the listing of these institutes and courses; it

established the rights and duties of registered mediators; and it addressed the suspension of

limitation periods by mediation of civil matters. The Mediation Act was amended in 2004 by

the Regulation of the Federal Minister of Justice on the Training Requirements for Admission
156
Special Mediation Skills Accreditation And Chartered Training For Membership of the Institute,
Institute of Chartered Mediators and Conciliators, ADR Spectrum, March 2018, 5.
157
United Nations Office on Drugs and Crime, Training Manual on Alternative Dispute Resolution and
Restorative Justice, 17.
158
Information from this section is taken from Christoph Leon and Irina Rohracher’s contributions to EU
Mediation Law and Practice, edited by Professors Giuseppe De Palo and Mary B. Trevor as well as
from Marianne Roth’s contribution to The Variegated Landscape of Mediation Regulation, edited by
Manon Schonewille and Dr. Fred Schonewille. The following experts provided assistance by reviewing
the information in the country analysis: Christoph Leon and Irina Rohracher.

88
as a Registered Mediator (‘Verordnung des Bundesministers für Justiz über die Ausbildung

zum eingetragenen Mediator, ZivilrechtsMediations-Ausbildungsverordnung’), (‘the

Regulation’). The Regulation established the minimum number of course units that applicants

must complete and verify in order to be registered as a mediator, including completion of

200-300 course units of theory and 100200 course units of practical education. Because

Austria had already developed high standards for registered mediators, the Directive was

implemented in 2011 by a separate Act on Certain Aspects of Cross-border Mediation in

Civil and Commercial Matters in the EU (‘Bundesgesetz über bestimmte Aspekte der

grenzüberschreitenden Mediation in Zivil-und Handelssachen in der Europäischen Union,

EU-Mediations-Gesetz’) (‘the EU Mediation Act’), to guarantee minimum standards for

mediations, including settlements facilitated by unregistered mediator.159

Article 18 of the Mediation Act establishes the registered mediator’s absolute duty of

confidentiality. A registered mediator must keep confidential all facts revealed by the parties,

and may be subject to prosecution if this duty is breached. The duty may not be waived by

the parties. The EU Mediation Act also adopted Article 7 of the Directive to establish that

mediators cannot be compelled to give evidence regarding information arising out of or in

connection with a mediation process in either civil or commercial judicial proceedings or in

arbitrations. The rule is subject to the exceptions explicitly named by the Directive. In sync

with this duty, Article 320(4) of the CCP makes the testimony of a registered mediator

inadmissible. The Austrian Act on Non-Contentious Proceedings (‘Außerstreitgesetz’),

(family and estate law) refers twice to mediation. Article 13(3) states that the court must work

towards a dispute settlement among the parties, and may do so at any point in the

proceedings. Article 29 states that if settlement among the parties is expected, the court may

159
Director-General for internal policies, policy department citizen’s rights and constitutional affairs C,
Rebooting the Mediation Directive: Assessing The Limited Impact Of Its Implementation And
Proposing Measures To Increase The Number Of Mediations In The EU, 17.

89
stop its proceedings for up to six months (unless it would jeopardize one of the parties’

interests). In accordance with Article 6 of the Directive, Article 433a of the CCP, entitled

‘Mediation Settlement’, provides that parties may bring a mediation settlement agreement

before any regional court in Austria and the court will approve it as long as its provisions are

consistent with the law. The settlement is then legally enforceable. This provision applies to

all mediation settlements, regardless of whether the mediator is registered.

2. Bulgaria160

Bulgaria’s first successful effort to enact laws regulating mediation came in December 2004

with the adoption of the Mediation Act. A few years later, the enactment of the 2008 Civil

Procedure Code (‘the Code’) created procedural measures for the use of mediation in pending

court cases and established a legal relationship between mediation and civil proceedings. a

further few years later, Ordinance No. 2 of 15 March 2007 (‘the Ordinance’) set minimum

standards for mediation training, certification and training institutions. These laws together

did increase mediation awareness and use by progressive judges and lawyers. Finally, in

2011, the National Assembly implemented the Directive by amending the Mediation Act. The

amendments focused on ensuring higher protections for mediating parties in the following

four main areas: mediation confidentiality, statutes of limitation, mediators’

impartiality/neutrality and enforcement of mediation settlements. The Mediation Act, Article

7, requires mediating parties to maintain confidentiality about all events, facts and documents

developed in the course of the procedure. In addition, Article 33 of the Ordinance requires the

mediator to keep confidential all the information related to activity as a mediator, both before

and after the procedure. Article 166 of the Code grants mediators the right to refuse to testify

160
Information in this section is taken from Sevdalina Aleksandrova’s contribution to EU Mediation
Law and Practice, edited by Professors Giuseppe De Palo and Mary B. Trevor, as well as from Lyubka
Vasileva-Karapanova’s contribution to The Variegated Landscape of Mediation Regulation, edited by
Manon Schonewille and Dr. Fred Schonewille. Ms. Sevdalina Aleksandrova provided assistance by
reviewing the information in the country analysis.

90
about a dispute they have mediated. Mediation Act Article 7(2) allows mediators to refuse to

be interrogated about information confided by any participant that is relevant to a mediated

resolution, unless the party who confided the information explicitly provides consent.

Paragraph 3 of Article 7 of the Mediation Act provides exceptions to mediation

confidentiality. In furtherance of the Directive’s Article 6, Bulgaria has enacted legislation

regarding the enforceability of mediation agreements. Mediation Act Article 18 provides that

the regional courts may approve an agreement reached through mediation. Such approval

gives the agreement the force of a court settlement agreement. Article 4 of the Mediation Act

prohibits persons who perform functions related to the administration of justice in the

judiciary system (e.g., judges, prosecutors and ministry officials) from carrying out mediation

activities. Government officials, unlike judges and prosecutors, can perform pro bono

mediations, because the prohibition is not an absolute restriction.

3. France161

On 16 November 2011, the French Government enacted a Decree (Ordonnance No. 2011-

1540) (‘the 2011 Decree’), which implemented the provisions of the Directive. The 2011

Decree followed years of consultation and studies carried out by public entities, courts and

legal practitioners. The French Conseil d’Etat, in particular, had produced a lengthy report in

2009 urging the government to improve and harmonize the legal framework for mediation

procedures. A more recent study, from 29 July 2009, also by the Conseil d’Etat entitled

‘Développer la mediation dans le cadre de l’Union européenne’ (‘Develop Mediation within

the Framework of European Union’) had provided a list of criteria that define a coherent

161
Information in this section is taken from Jean Georges Betto and Adrien Canivet’s contributions to
EU Mediation Law and Practice, edited by Professors Giuseppe De Palo and Mary B. Trevor; from Dr.
Paola Cecchi Dimeglio’s contribution to The Variegated Landscape of Mediation Regulation, edited by
Manon Schonewille and Dr. Fred Schonewille; and also from Frédérique Ferrand’s contribution to
Regulating Dispute Resolution: ADR and Access to Justice at the Crossroads, edited by Felix Steffek
and Hannes Unberath. Mr Jean Gorges Betto provided assistance by reviewing the information in the
country analysis.

91
system for mediation. In addition, it listed all the then current systems of mediation as well.

The provisions of the 2011 Decree were partially codified in the Code of Civil Procedure

(CCP) through another Decree dated 20 January 2012 (‘the new Decree’). The 2011 Decree

furthered the French Government’s objectives to facilitate and encourage mediation use for

domestic civil and commercial disputes as well as cross-border ones.

3.3 Contemporary features of mediation and conciliation

The definition given by Goodman gives an insight into what the features of mediation are;

1. Voluntary

2. Non-binding

3. Private

4. Neutral mediator

5. A simple process of settlement negotiated by the parties

6. Interest based procedure

1. Voluntary

The consensus between parties to a dispute is important to initiating the mediation. It is

entirely voluntary and non-coercive as parties are free to decide whether to agree in the

initiation of the process and the termination thereof. Often, mediation may be organized by

parties on judicial recommendation (court ordered mediation) or it may be statutorily

recommended. Non-coercive as the mediator does not decide for the parties but rather

encourages them to agree on a settlement.162 Sometimes court ordered mediation may provide

a party or both parties with no option but to be involved in the mediation and come out with a

negotiated settlement of their dispute. Any of the parties that refuse to mediate stands to bear
162
Public Services and Procurement, Canada. See information at: https://www.tpsgc-pwgsc.gc.ca/biens-
property/sngp-npms/bi-rp/conn-know/reclam-claims/definition-eng.html. Last accessed 6 th July 2018.

92
the consequences, which may be pecuniary. This may be in form of a fine especially for any

party that is absent at the hearing, during which the appropriate channel for the process is

determined. Mediation is voluntary and all parties are required to participate. If a party

decides to abandon the process, then the purpose is defeated.

2. Non-binding

The process of mediation does not bind any of the parties in dispute and does not impose any

obligation on them to settle. Settlement depends on the participation and agreement of parties

involved. The mediator can only persuade the parties in dispute to resolve their differences

amicably through the process. If parties decide not to settle, then the issues will be resolved

through litigation. If settlement is achieved by the parties, the terms of settlement will form

part of an enforceable contract, and an enforceable judgment of the high court, if it is a court

annexed process. No decision can be imposed on the parties involved and that may or may

not agree upon a negotiated settlement.163

3. Private  

The process of mediation is private and confidential as to limits imposed by the law; in

mediation, the parties cannot be compelled to disclose information that they prefer to keep

confidential. If, in order to promote resolution of the dispute, a party chooses to disclose

confidential information or make admissions, that information cannot be provided to anyone

outside the context of the mediation. Mediation's confidentiality allows the parties to

negotiate more freely and productively, without fear of publicity. Parties can in mediation

disclose information, express views, make suggestion, offer concessions, without fear that

such could restrict them charting a different course should matters proceed to trial. If the

163
The process is flexible and the parties can agree to take into account a broad range of aspects,
especially concerning commercial and business interests. Dispute Resolution, Hamburg.com,
http://www.dispute-resolution-hamburg.com/mediation/what-is-mediation. Last accessed 6th July, 2018.

93
mediation process fails, a party is at liberty to formalize an offer made during mediation as an

offer which would carry the usual cost implication.

4. Neutral Mediator

The neutrality of the mediator is the hallmark of the Mediation process. The ability of the

parties to trust and repose confidence in the mediator is paramount to the success of the

whole process of mediation. Such mediator must be non- partisan and neutral in all aspects of

the process, must not be a person interested in issues in dispute, not related or connected to

any of the parties through whatever means to avoid bias. The mediator must not have any

interest in any of the parties otherwise an objective intervention would be compromised. The

Parties must bestow enough authority on the mediator to perform his duties. The mediator

should not let emotions or sentiments intrude into the process which can undermine the

credibility of the process. In other words, he must be disinterested in the dispute and must not

be invested with authority to take any decision; instead the power to make decisions lies with

the disputants. Mediator neutrality would appear, by definition, to be necessary and required

ethical principle for all mediators to practice.164 

164
Paul Bailey, Neutrality in Mediation: An Ambiguous Ethical value, (2014) 1.

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 5. The Parties’ Settlement

Parties involved in the disputes share power in the decision making process. The disputants

are in control of the settlement. Settlement is attainable only when parties agree to resolve

their differences through the mediation process and they are saddled with the responsibility of

fulfilling the terms of the agreement.   The process seeks to create an atmosphere where

parties to dispute are able to reach an agreement that is fair and maximize the interest of all.

The flexibility of the process create avenue for exchange of ideas and opportunity to parties

to properly address issues at stake before reaching a settlement.

6. An Interest –based Procedure

Parties in Mediation can be guided by their business interest. Therefore parties are free to

choose an outcome that is oriented as much to the future of their business relationship as to

their past conduct. When parties refer to their interest and engage in dialogue mediation often

results in a settlement that creates more value than would have been created if the underlying

dispute had not occurred.165

3.4 Application of Mediation and Conciliation

a.) Commercial and Employment Disputes: these kinds of disputes may arise in any field

of commercial endeavour including those arising from corporate disputes, franchise, agency,

Intellectual property, industrial and labour disputes. In employment disputes, an important

distinction can be made between conflicts of interest and conflicts of rights. Conflicts of

interests are normally associated with employment relations disputes between employers and

employees over aspects of pay and working conditions, such as changes to reward systems or

proposed changes to the working environment. Conflicts of rights are more concerned with
165
Mrs Nimisore Akano, Prof. Justus, National Open University Of Nigeria, Alternative Dispute
Resolution 1 (2011), 26-30.

95
alleged violations of legally enforceable employment rights.166Conflict, whether of interests

or of rights is an inevitable part of everyday working life. The important issue therefore is

how to resolve disputes quickly and cost effective. When a dispute arises in the workplace, it

is in the interests of all parties to resolve it as soon as possible to avoid the destructive

outcomes of workplace conflict.

  b.) Family Disputes: Conciliation is confidential in nature and is particularly suitable for

the settlement of disputes between husband and wife in matters relating to separation,

granting custody of children, property and finance. Mediation has become the primary

method of dispute resolution in many jurisdictions. Family disputes are highly emotive and

the mediation process offers the best dispute resolution option for these disputes. The process

addresses itself to the real issues and interests that underlie the dispute and empowers the

parties to take control over their future arrangements, instead of leaving it in the hands of an

arbiter. The costs of mediation may be less than the costs of a full hearing and disputes can be

resolved more quickly than through the court process.167

c.) Community and Neighbourhood Disputes: Communal disputes are often very volatile

and can arise in various ways. Disputes can arise from use of land or water. It can also be

religious, ethnic or racial. Issues involving demands for compensation for environmental

damages resulting from the exploitation of crude oil can be settled amicably through

conciliation. One of the most common and acrimonious types of disputes between neighbours

are disputes over property. Such disputes ‘’can be fought with a passion that seems out of all

proportion to the importance of what is involved in practical terms.’’ 168In the early 17th

166
Teague-New Employment Times and the Changing Dynamics of Conflict Resolution at Work: the
Case of Ireland (2006) 28 Comp. Lab. L. & Pol’y J. 57 at 65.
167
Supra, note at 152, page 197.
168
Carnwath LJ in Ali v Lane EWCA Civ 1532, [2007] 2 EG 12638 Semayne’s Case (1604) 77 All ER
194.

96
century, Sir Edward Coke noted that ‘’the house of every man is to him his castle and his

fortress, as well for his defence against injury and violence, as for his repose.’’ 169In the

English case of Barker v. Johnson, 170where a dispute had occurred between neighbours over

an easement of drainage, Ward L.J. stated that ‘’I would urge these parties to seek the help of

this court’s ADR service in order to explore whether a compromise would not only enable

this litigation to be killed off sooner rather than later, but that some sense of compromise

might bring a greater sense of happiness and peace in the respective homes of neighbours

who continue to live together and should do with civility rather than continuing acrimony.’’

d.) International Disputes: International Disputes arise between parties from different

countries, or disputes arise between sovereign states who will not like to negotiate directly

with the other country for reasons of prestige. The option of the parties to conciliate may

arise at any time in the course of resolving their differences. It may be chosen as the first step

in resolving a conflict or it may be employed at the stage where negotiations have failed

between the parties. Where talks in a negotiation become deadlocked, parties may decide to

conciliate, in which the unbiased view of the conciliator will be given to the parties to arrive

at a settlement.171

3.5 Mediation and Conciliation: A distinction without a Basic Difference

169
Powell- Boundary Dispute Resolution in England & Wales –Surveyors and Lawyers Working
Together to Resolve Problems (February 2005) International Federation of Surveyors. Online article
available at http://www.fig.net/pubmonthly_articles/february_2005/powell_february_2005.pdf.291 .
Last accessed 6th July, 2018.
170
[1999] E.W.C.A. (Civil Division) (March 25, 1999).
171
ibid, page 39.

97
As has already been noted above, the argument presented in this work is to the effect that the

distinctions evinced by some authors, jurisdictions, and legal scholars as to mediation and

conciliation should be done away with. In order to understand which ADR tool is relevant for

application and use in settling of disputes of any nature; whether between individuals,

commercial entities, and disputes of an international form or nature there is the need to be

able to categorically identify what such tool constitutes of. It is by been able to know what a

tool characteristically entails that one can then be able to identify the dispute to which it will

apply. Where this cannot be done easily problems of application and procedural deadlocks

are bound to arise. This is the mainframe of what constitutes the argument that the distinction

between mediation and conciliation should be done away with. As noted by the Australian

National Alternative Dispute Resolution Advisory Council:

‘’The inconsistent use of both ADR terminology and principles potentially affects consumers,

referrers, evaluators, researchers, policy makers, courts and tribunals, all of whom need

consistent and accurate information on ADR. As a result, it is likely that many disputes that

could effectively be resolved through ADR are litigated in the courts and tribunals.’’172

According to the UNCITRAL Model Law the definition of mediation as already stated above

is here restated. In the UNCITRAL Model Law on International Commercial

Conciliation, conciliation is defined as: ‘’…a process whether referred to by the expression

conciliation, mediation or an expression of similar import, whereby parties request a third

person or persons (‘’the conciliator’’) to assist them in their attempt to reach an amicable

settlement of their dispute arising out of relating to a contractual or other legal relationship.

172
The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal Jurisdiction –
A Report to the Attorney General‖ (NADRAC, September 2009). Available at: www.nadrac.gov.au.
Last accessed 6th July, 2018.

98
The conciliator does not have the authority to impose upon the parties a solution to the

dispute.’’173

According to the definition offered by this international masterpiece legislative enactment,

which serves as the bedrock and exemplary guide for a plenitude of domestic legislations in

various jurisdictions, any process which has some basic characteristics could be identified as

constituting mediation or conciliation. In fact, by extension the definition goes further to

encapsulate or embrace this process with the phrase ‘an expression of similar import’. By

implication, this means that any process going by whatever name which has the

characteristics of the definition of conciliation herein provided could fall under this provision.

The basic characteristics which constitute this process are identified in this definition.

Firstly, the parties must request a third person or persons to assist them in their attempt to

reach an amicable settlement of their dispute. By this provision, the person who is called

upon to render his assistance is called the conciliator. By extension it could be implied that

where the dispute settlement scenario is preferred to be deemed a mediation settlement

scenario, the person who is called to assist the parties reach an amicable settlement of dispute

could be called a mediator. Furthermore, by extended implication where the dispute

settlement scenario has the basic characteristics of the definition of conciliation or mediation,

the person who assists the parties to reach a settlement can be called by that relevant name as

gleaned from this provision. What this means from the provision is that the definition given

of this process is not even limited to mediation and conciliation alone. 174 Any process which

falls within the characteristic of having parties rely on the assistance of a person or group of

persons to reach a settlement falls within this definition. The settlement here must be of an

173
Ibid, note at 139.
174
UNCITRAL Model Law on International Commercial Conciliation, 2002 model was adopted for the
definition. The 2006 revised model contains more provisions on effective conciliation.

99
amicable nature. Amicable here meaning that in a sense it must be seen to have some form of

friendliness or goodwill.

In furtherance of this the provision is to the effect that the settlement procedure must be

geared towards a dispute arising out of relating to a contractual or legal relationship between

them. Here the provision is clear that the settlement procedure is for a dispute arising out of a

contract or legal relationship between the disputing parties. The author will here like to argue

that this also applies to what has earlier been called the social contract in this work. Thus the

contract here should not be taken to mean a relationship only of a commercial nature

facilitated by the exchange of goods and services on the basis of agreements between parties

characterised by consideration which imposes obligations on the parties. The contract here

could also be of a social nature between individuals engaged in regular social relations which

imposes and creates rights and obligations which could also be deemed to be of a contractual

nature. The last part of this provision which is also the most important provides that the

conciliator (or mediator or whatever name which falls under the embrace of this provision)

has no authority to impose any solution to the dispute upon the parties. Thus this means that

the duty of the mediator or conciliator is only as an intermediary or a person who renders

assistance in helping the parties reach a final decision regarding their dispute but imposes no

solution to the dispute between the parties. Meaning that he can offer advice, suggestions or

solutions but cannot impose them on the parties as having a binding obligation to follow the

suggestions he offers or the advice he gives.

Turning to the 2008 EC Directive on Mediation, it defines mediation as ―’’…a structured

process, however named or referred to, whereby two or more parties to a dispute attempt by

themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute

with the assistance of a mediator.’’175 This is a broad definition of mediation and could, on

175
Article 3 (a) of the 2008 Directive.

100
first reading, suggest that conciliation falls within the remit of this definition. However,

recital 11 of the 2008 EC Directive states that the Directive should not apply to

―’’...processes administered by persons or bodies issuing a formal recommendation, whether

or not it be legally binding as to the resolution of the dispute.’’ 176 As the conciliator plays an

advisory role in the resolution of disputes and can issue a formal recommendation to the

parties, it is evident that the 2008 Directive also recognises that there is a distinction between

these two processes based on the role of the third party in each process.

However, it is the candid opinion of this author that the distinction still leaves some loopholes

and is unnecessary. This is because what is formal or informal to a dispute settlement process

is dependent on the arrangement and deduction of all the parties involved. The only example

offered as to what might be deemed to make this process formal is that the dispute process is

not as personal as the conciliator in his official capacity may rely on documents. This is not

always the case in mediation, according to the argument because the mediator does not

always rely on documents but the platform for the parties to express their grievances is more

or less loose. An argument against this is that in the conciliation process, the documents will

reveal the cause of the grievances which the parties might again do by mouth as there is no

rule restricting them. This definition would therefore strictly make all mediation dispute

settlement processes informal in nature. This is entirely absurd and should be revisited by the

EC Directive amendment forum. The addition to the provision ‘binding or not binding’

further makes it obvious that the attempt at distinguishing between mediation and conciliation

is not thorough and clear-cut. To give fleshes to this argument take for example the report of

the Law Report Commission on Alternative Dispute resolution: Mediation and

Conciliation, where mediation is referred to as a formal process. It is stated there that ‘’ for

the purposes of this Report, the Commission views mediation as a structured formal

176
Recital 11 of the 2008 Directive.

101
process which is governed by a set of key principles.’’ 177 This reflects the definition of

mediation in the 2008 EU Directive on Mediation which states that it is ‘’―a structured

process.’’178 . The Law Report Commission when finally unable to properly distinguish both

as admittance takes recognisance to the statement of the eminent Lord Judge, Lord Chief

Justice of England and Wales, who stated that: ‘’The mediation [and conciliation] process,

could, unless danger is recognised and addressed, particularly if it is part of the court process,

may eventually, and quite unintentionally, and by unforeseen accretion become increasingly

formalised and procedural.’’179

The Commission firmly considered that for mediation and conciliation to continue evolving

as viable and efficient mechanisms for the resolution of civil and commercial disputes in the

civil justice system, there is a pressing need for clarity around the issues of terminology. As

noted by one commentator ‘’... unless there is clarity regarding ADR definitions, nothing else

will follow.’’

3.6 Mediation and Conciliation in Lagos: How effective?

Lagos, Nigeria is selected for analytical review because in Africa it has what seems to be one

of the most effective mediation processes, taking recognition of its Multi Door Courthouse
177
The Law Report Commission on Alternative Dispute resolution: Mediation and Conciliation, 20.
178
Article 3 of the 2008 Directive.
179
Speech by Lord Judge, Lord Chief Justice of England and Wales, at the Third Civil Mediation
Council National Conference, London, 14 May 2009. Available at: www.civilmediation.org. Last
accessed 6th July 2018.

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options. But from a realistic point of view has mediation and conciliation in Lagos been truly

effective? One must recognise that as the saying goes ‘old habits die hard’. It will be difficult

in all truisms for an average citizen to resort to a process which is alien to him even when it

may present more advantages by way of efficiency.

The Lagos State Ministry of Justice (‘’the Ministry’’) established the Directorate of Citizen’s

Rights (DCR). The idea behind its establishments was to deal with the failures of the

adversarial justice system180 particularly among the poor and vulnerable in the State.ii There

were several administrative units created under the Directorate of Citizen’s Rights (DCR) in

1999. The DCR at inception consisted of five departments which were Citizen’s Mediation

Centre (the Centre), Office of the Public Defender (OPD), Consumer Rights Protection Unit,

Human Rights Protection Unit, and the Justice Now Publication Unit.

The Lagos State Government in June 2002 also created the Lagos State Multi-Door

Courthouse (LMDC), the first Court Connected ADR Centre in Africa. The establishment of

these institutions was stemmed from a desire to expand access to justice and improve justice

delivery through the adoption of ADR. The objectives of the LMDC are as follows:

1. Making the LMDC the focal point for the promotion of ADR in Lagos State.

2. To enhance Access to Justice by the provision of alternative mechanisms to litigation

3. Minimize citizen frustration and delays in justice delivery by providing a standard

legal framework for fair and efficient settlement of disputes through ADR

4. To promote growth and the effective functioning of the Justice System.181

180
Morenike Obi-Farinde, Analytical Review Of Lagos State’s Mediation Centre Law 2007, Essays on
Mediation As An ADR Tool: Lagos State Experience, 1-2.
181
Section 2 of the LMDC Law 2007.

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The three doors or options which the LMDC has for disputing parties to resolve their disputes

are: early neutral evaluation, mediation and arbitration.

Despite all of these developments in the dispute settlement methods and procedures in Lagos,

how effective have they been? So far these have been the challenges of the alternative dispute

resolution systems, especially as it applies to Lagos:

Validity and enforcement

It has been reported that at the moment the validity and enforcement of decisions of non-

formal justice systems is a big challenge. Agencies like OPD and CMC whose laws mandate

them to use ADR processes to resolve disputes are also facing this problem. 182The

Memorandum of Understanding that is usually the outcome of the agreement, which is the

CMC and OPD Memorandum of understanding between disputants, is usually breached by

one of the parties. The aggrieved party where this happens has no clear cut redress as the

MOU may not be taken to the regular court for enforcement. Some Magistrates and Judges

according to reports refuse to recognise the MOU on the ground that it is not a ‘’consent

judgement’’ from a recognized court. The concern of the courts relate to whether or not rules

of natural justice were observed, in the absence of legal backing and on the forum of the

resolution of the dispute. Following this, the reservation of the regular courts to other dispute

resolution platforms remains an issue yet unresolved.

Forum

The forum as has already been noted in Lagos is not usually accepted because to most

citizens it does not carry enough force of law and does not possess some form of regularity

182
Caroline, Essays on Mediation, 183.

104
and formality to it. The forum for dispute resolution in the informal justice system in Lagos is

mostly also informal. For the whole of Lagos the CMC has 18 units with 81 mediators and 86

support staff, an Administrative officer and a Public relations officer with 3 clerks deployed

from the Ministry of Justice bringing the staff strength to 172. This is outrageously low for an

area as wide and busy as the State of Lagos. Adding to the informality of the forum which

they seem to represent the informal adjudicatory system in Lagos has not been so effective.

Jurisdiction

Jurisdiction of informal justice system generally is wide. They include both criminal and civil

matters but the validity and enforceability of the decisions judgements rely on informal

structures and sanctions which remain weak generally and out rightly unenforceable in

criminal matters. This is a major problem in alternative dispute resolution systems in Lagos.

For crimes which are somewhat grave in nature people are usually expectant of grave

judgements. But that is not always the case and even those judgements do not have the force

of jurisdiction by the informal centres. These judgements are generally of an unenforceable

nature.

Rules of Procedure

In Lagos, the informality in the system dictates that formal rules of procedure should not

apply. However these rules may have to be reviewed and amended. Such is the heartthrob of

this work, that more legal structures should be put in place to aid the informal systems of

adjudication. Closely related to this problem in Lagos is the lack of records. There is the

necessity to maintain records of some sort. Most informal systems in Lagos do not keep

sufficient records therefore the challenges of institutional memory remains.183

183
Supra.

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 However the reviews about the informal adjudicatory system have not altogether been a sad

story. The Citizens’ Mediation Centre (CMC) celebrated the 10 th year anniversary of its

establishment in the year 2009 as a centre for alternative dispute resolution (ADR). With the

CMC’s humble beginnings over sixteen years ago the problems which it was fraught with

when it began are beyond comprehensible. Though it is yet to be fully embraced as a

veritable quick dispute resolution process, the Centre has however, within the period of its

establishment shown reasonable measure of acceptability by its impressive growth recorded

over the years.184

From the 2010 annual performance record of the Citizens’ Mediation Centre (CMC) 185, the

settlement rate in mediation at the Centre is now ninety per cent (90%) i.e. ninety per cent of

disputes followed up by parties to reaching terms of settlement are settled. At the tenth year

anniversary of Citizens’ Mediation Centre in 2009, the record released by the Centre’s

Director186 shows that between 1999, the year of establishment of the Centre and 2009,the

year of its tenth year anniversary, one hundred thousand (100,000) complaints under various

heads of claims were received by the Centre.187Within that period (1999 to 2009), the Centre

was through its services provided to the Citizens of Lagos State, 188 able to assist parties

amicably resolve Sixty Five Thousand (65,000) of such matters 189. When we juxtapose the

enviable achievement of 90% settlement rate said to have been achieved in the year 2010
184
From the record of statistics with the CMC it has been gathered that the number of mediation cases
received over the years are the following; 2008(11,751), 2009 (12,892), 2010(14,797), 2011(17,135)
and as at October 2012; 18,856 mediation cases have been received.
185
Record compiled and being kept by the CMC Headquarters Office, Motorways, Ikeja, Lagos State.
186
Atinuke Oluyemi, now a Judge of the High Court of Lagos State.
187
Note that apart from the statutory power given to the Council of CMC to expand the scope of subject
matter which the Centre can deal with, the following are generally the different heads or issues that the
Centre’s mediators can assist parties resolve; Landlord and Tenant matters, Employee and Employer
matters, Family matters and Debt related matters see section 3 of the Law to provide for the
establishment of the CMC.
188
Note Section 15 of the Law establishing CMC.
189
See ‘’The Punch’’, Saturday July 25, 2009, 9.

106
beside the figure of 14,797 mediation matters said to have been handled by the Centre in that

year alone, we will be able to appreciate and to commend this phenomenal achievement of

the Centre.

3.7 Is there an international angle to mediation?

This question is relevant considering how that on an international scale, the most

recognisable method of dispute resolution employed seems to be international arbitration.

However, beyond any shadow of doubt, there is of course an international angle to mediation.

How is it identified and what does it entail? There have been instances in recent and not too

recent times where mediation has been applied to settle disputes on an international scale,

though unrecognisable by a majority of the international community for what it was. In the

last 20 years, mediation has become one of the most commonly used tools of conflict

resolution, employed by states, international organizations and other actors. The increased

frequency of mediation is partly a result of supply – there have been, unfortunately, many

wars to mediate – but it is also a function of structural factors, such as geopolitical shifts,

democratization, and greater willingness of combatants to seek help from third parties. While

mediation is popular, it also remains somewhat mysterious. We still know relatively little

about what makes conflicts susceptible to mediation and what makes some mediators more

successful than others.190

Mediation therefore represents a non-violent third party intervention, and

encompasses a wide range of strategies and tactics that are all aimed at resolving the

conflict at hand (Terris, Maoz, 2005: 563–566; Beber, 2012: 5; Regan, Aydin, 2006:

739–740). The third party can choose the sites for the mediation, chair the meetings,

convey proposals and directly influence the conflict management attempt through

190
J. Michael Greig and Paul F. Diehl Cambridge, UK: Polity Press, 2012, Forum for Development
Studies, 2013 Vol. 40, No. 1, 189–191.

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 persuasive- and pressure tactics to entice the warring parties to reach an agreement.

Wars on a national and an international scale are inevitable and mediation overtime

has been the best method for solving problems of international conflict. According to

reports mediation has been the most commonly used technique of intervention in

interstate disputes. It accounts for more than one-fifth of all third-party actions

between the end of World War II and the turn of the century (Frazier and Dixon,

2006:395).191 The opinion of most researchers is that the technique of choice for

third parties hoping to settle military conflicts especially is what has made

international mediation a success story. (Dixon, 2009; 124). In fact mediation has

also been linked to the decrease in the number of civil wars in the 1990s. Ted Gurr is

of the opinion that the mediation efforts of states and international groups both

governmental and non-governmental have prevented bloodshed,192and according to

William Dixon in his 1996 statistical assessment of conflict management techniques

mediation ‘’emerged as consistently effective in both preventing escalation and

promoting peaceful settlements’’-in fact more effective than any other type of

third-party intervention.193

Mediation is broadly conceived as the non-coercive intervention by a third party in a

dispute between two or more political entities for the stated purpose of effecting a

191
Frazier and Dixon consider about two dozen techniques as varied as boundary demarcation missions,
preventive peacekeeping and election monitoring. The most common methods are mediation (about
22%), ceasefire appeals (19%), and appeals for negotiation (14%). About 8% of interventions involve
the provision of good offices.
192
Gurr describes his People versus State as ‘’an encouraging volume for those who have promoted,
applauded, or otherwise supported efforts to resolve intrastate conflicts through dialogue between the
protagonists and the active engagement of the international community ‘’ (2002: xi). See also Esman
and Telhami (1995: ix) and Crocker et al. (2005:21), who write that ‘’[i]t is now generally accepted
that third parties…have been helpful-if not vital- in resolving some conflicts.’’
193
Dixon’s analysis (1996: 676) covered the years b1945-84 and used the event database Sherfacs
compiled by Sherman (1994).

108
 settlement of the dispute.194 However it should be noted that the intervening third

party does not have to be a State; it can (and frequently does) consist of one or more

private individuals, an international governmental or non-governmental

organization.195 The political entities which are engaged in the conflict do not have to

be states either, and mediation is a common means of intervention in intrastate

violence. International mediation is different from other forms of international ADR

tools for various reasons. Mediation is different from peacekeeping which involves

the deployment of military staff to oversee a ceasefire (Fisher, 1995:41). Mediators

can also employ a variety of tactics but are different from other types of interveners

in that they do not employ force to suppress, create the conditions necessary for or

guarantee the settlement of a conflict (Skjelsbaek and Fermann, 1996: 76). The non-

coercive nature of mediation therefore also means that more broadly the mediator

does not promise rewards, threaten punishment, or deliver payments or goods to the

antagonists. This further distinguishes mediation from conflict management

strategies involving humanitarian aid or economic sanctions. 196It is different from

arbitration. It is open-ended with respect to whether a settlement will be reached. It

is not also a judicial, but ‘’basically a political process; there is no advance

commitment to accept the mediator’s ideas’’ (Touval and Zartman, 1985:7). Conflict

management methods such as international public appeals, resolutions, and advice

differ from mediation in that the latter requires two-directional communication

between the intervener and each antagonist. Disputants are not passive recipients of

194
See for instance Princen (1992: 3), Bercovitch (1996: 3), Bercovitch (2002: 5), and the United Nations
Handbook on the Peaceful Settlement of Disputes between States (1992).
195
Bernd Beber, International Mediation, Selection Effects, and the Question of Bias,(2012) 400.
196
Fisher (1995) draws a distinction between ‘’pure mediation’’ in which the mediator has no leverage to
use ‘’promised rewards or threatened punishments to motivate the parties toward a settlement’’ and
‘’power mediation’’ (or ‘’mediation with muscle’’), which is really an instance of ‘’triadic
bargaining’’.

109
 mediation efforts. They must actively accept and engage with the mediator. 197 In

international mediation the mediator is a very important factor as he steers the

mediation process in a right direction and determines the outcome of the mediation

process. Mediation of this nature is therefore taken as a sequential but integrated

process (Wall, Stark, Standifer, 2001). Here three main factors precede a possible

peace agreement: 1) the selection of mediation as a way to resolve the conflict, 2) the

choice of a particular conflict manager, and, lastly, 3) the decision by the mediating

party to opt for a particular strategy. It is an accepted fact that while the attributes of

the conflict determines the adaptation of mediation individual features of the

mediator affect the last two phases of the conflict management attempt: the choice of

a particular conflict management strategy, and the final outcome. Bercovitch et al.

(1991) developed a trichotomy that categorizes mediation strategies according to

their strength into (1) directive, (2) procedural, and (3) communication facilitation

strategies, with the first two considered to be more decisive. A directive strategy is

the most powerful form of intervention, as the third party can shape the content and

nature of a final outcome either by promising support or by threatening actors with

diplomatic sanctions or other coercive measures. Conversely, a procedural strategy

enables the mediator to control the conflict management environment. Lastly,

communication facilitation encompasses relatively passive tactics that range from

providing information to organizing talks between belligerents. Interventions by the

United Nations, such as in Cambodia, Croatia, Georgia, Indonesia, Morocco,

Mozambique, and Tajikistan, often rely on a procedural strategy rather than

communication facilitation. On the contrary, multilateral mediation teams often take

a more timid stance; communication facilitation strategies were for instance used by

197
This section draws in particular on Fisher (1995). For an overview of mediation strategies, see
Bercovitch (1996: 189-193)

110
 the Organization of the Islamic Conference (OIC) and a group of state mediators

(Somalia, Senegal, Saudi Arabia, and Indonesia) during the conflicts in the

Philippines with MNLF/MILF in the 1970s and 1990s.

In addition there are tools available to a mediator in an international mediation.

Firstly, mediators have the freedom to structure how disputants interact in a

bargaining situation: they also have the freedom to provide what will be a procedural

framework. Thus, a mediator can arrange negotiation sessions for disputants, help

prioritize issues, draft an agenda, suggest and provide meeting places, set deadlines

and also assist in managing media relations. For example, Theodore Roosevelt,

selected the Portsmouth Navy Yard in New Hampshire not simply as a matter of

convenience as the site of the negotiations to end the Russo-Japanese War 1904-05

(Washington weather was deemed too unpleasant in August), but also because the

Navy Yard had an easily guarded entrance that would keep reporters away (Princen,

1992:113). Second, mediators can ascertain facts, they can relay information also to

the disputants, provide ‘’good offices’’, and facilitate communications between

antagonists; they can influence the exchange and acquisition of information between

the parties to the conflict. It is important to provide good offices. 198Mediators can

also manage information by preventing or screening communications between

disputants. In the Iranian hostage crisis, the Algerians insisted that messages

between the U.S and Iran were to be reviewed and transmitted by them, which

turned out to have a positive effect on negotiations (Slim, 1992: 221-223). Third,

mediators can recommend concessions, moderate extreme demands, and propose

possible settlements; they can suggest substantive compromises (Touval and

198
‘’Good offices’’ were important when Algeria helped defuse the Iranian hostage crisis of 1979-81, or
when UN Secretary-General Dag Hammarskjold negotiated the release of U.S Air Force personnel
from China in 1954.

111
Zartman, 1985:7). President Carter’s role in the Camp David negotiations, for

example, went beyond setting up a procedural framework and facilitating

communication. He also drafted possible solutions and reasoned and bargained with

Begin and Sadat.

All of these above represent the dynamics and core characteristics of international

mediation. They go a long way to determine the success or failure of an international

mediation process. In all, the mediator is the most important element of an

international mediation. He can steer the mediation process in the right direction if

he exerts the right influence on the mediation process. International mediation is also

clearly distinguishable from other similar processes such as peacekeeping or

arbitration.

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 CHAPTER FOUR

SKILLS AND BASIC REQUIREMENTS OF A MEDIATOR AND

ARBITRATOR

My joy was boundless. I had learnt the true practice of law. I had learnt to
find out the better side of human nature and to enter men’s hearts. I
realized the true function of a lawyer was to unite parties riven asunder.
The lesson was so indelibly burnt in my heart that a large part of my time
during the twenty years of my practice as a lawyer was occupied in
bringing about private compromises of hundreds of cases. I lost nothing
thereby-not even money, certainly not my soul.
- Mohandas Gandhi

4.1 Training and qualifications of a mediator and arbitrator

Mediation and arbitration of disputes is rich with the potential for promoting harmony

and justice in a wide variety of environments. A mediator or arbitrator who has

undergone some basic training will be able to render more valuable service to his family

and friends, school, business and community. It is imperative that the mediator develop

some qualities to be a successful and effective mediator. 199 Mediators do not “solve”

problems. Instead, mediators act much like oil in an engine to help the work of solving

the problem be done much more efficiently. 200 A good training is one that is limited in

lectures and high on exercises and role-plays. Mediation as a class of ADR is one of the

most personally demanding and stimulating skills one will ever be called on to practice.

The role of mediation requires each mediator to draw heavily on his or her natural

abilities, including the capacity to communicate clearly, to de-escalate emotional tension,

to remain patient and to accept radically different life styles. A mediator thus cannot

afford to be judicial or coercive, yet must guide, move and control the process effectively.
199
Adeyinka Aroyewun, Mediation Process: Principles, Practices and Phases, Essays on Mediation As An
ADR Tool: Lagos State Experience (2012).
200
Link is at: adrr.com/adrl/essayl.htm. Last accessed on the 23rd of May, 2018.

113
 But even beyond the skills that are essential for effective mediation, there is an

indefinable art to the process. Each individual possesses a distinctive personal style

composed of tone of voice, view of the world, physical appearance and norms of conduct.

The techniques of mediation cannot substitute for or supplant that personal type; they can

only augment it. The meld of techniques and styles results in an infinite variety of

approaches to mediation that enriches the process and constitutes one of the compelling

strengths of mediation.201

Becoming a Chartered Arbitrator on the other hand is a rigorous process, involving a

number of stages. In the UK for example, the Chartered Institute of arbitrators is

responsible for the task of training and accrediting practitioners. These practitioners are

required to have knowledge of the laws of contract, tort and evidence. They must also

understand and be able to use the applicable procedural law. In addition to all these, they

must be able to evaluate the arguments and evidence which seemingly supports

conflicting points of view and determine the award. Where disputes revolve around issues

of law for example, lawyers often make the best arbitrators. However, where the dispute

revolves around issues of fact, the parties may prefer to have an arbitrator who I skilled in

the particular sector involved.202

QUALITIES REQUIRED OF A GOOD MEDIATOR

Eminent writers in the field of mediation espouse a code of conduct that mirrors the

underlying principles of the mediation process amongst which they aver that he must

have some necessary qualities and basic training. 203 Some characteristics and qualities

that parties look for in a mediator are related to the key trait of impartiality:
201
Institute Of Chartered Mediators And Conciliators (ICMC), Special Mediation Skills Accreditation
And Certification Training For Membership of The Institute, Training Manual, March 2018 1, 2.
202
BPP Law School, Alternative Dispute Resolution.
203
Boulle, L Mediation: Principles Processes Practices. LexisNexis Butterworths, (2005), 348.

114
 1. Non-judgemental: In a mediation process, the mediator’s role is to help the

parties reach an agreement whose terms are acceptable to them, even if the

mediator disagrees with the resolution. It is a difficult task to remove from his or

her vocabulary and mannerisms those unconscious words and gestures that may

be freighted with judgement. For example it is a norm that the best way to identify

someone who is an effective listener is that he always encourages further talk by

nodding vigorously in response to a narrative tale. However, while the nods to the

talker might signify encouragement, they may also suggest to another watching

disputant that the mediator believes every lie and half-truth the opposite party is

spreading. This therefore reveals the need for a mediator to be conscious not to

give any unintentional sign of being impartial or judgemental.

2. Empathetic: This means that in relating with each individual party, an effective

mediator must be able to appreciate their individual fears, history and perceptions.

It is by been able to do this that the parties have confidence that the alternative

solutions developed by a mediator will not be blind to their needs.

3. Effective Listener: The mediator must be an effective listener. The parties must

have the feeling that the mediator has clearly heard their presentation. A mediator

who constantly talks from the parties’ perspective might have something in mind,

some purpose. But, it might not be consistent with that of the parties.

4. Patient: In a faceless bureaucracy, parties are not treated in a warm and friendly

manner. The parties do not want to be treated by the mediator in a manner similar

to this. They want a person who will assist them no matter how long it takes.204

QUALITIES OF A GOOD ARBITRATOR

204
Ibid at 182, 4, 5.

115
 Given that one’s arbitrator may have authority to make a final and binding decision in

the case, it is important that the person chosen as an arbitrator understands the

technical issues of the dispute. 205Though there is no single arbitrator who is right for

every case, there are some that are always wrong. Yet there are key characteristics

that make for a great arbitrator:

1. Competence: ‘’Be thankful for problems. If they were less difficult, someone

with less ability might have your job’’-Jim Lovell, Apollo 13. A great arbitrator is

one who understands the subject and thereafter takes on the problems. For

example an arbitrator handling a business dispute should understand some things

about business and how business works. In such an instance this would require

industry sector expertise as well as a solid grasp of the law applicable to the field.

On a personal level, competence here would involve or require one been able to

enjoy helping people, being a good listener, having the intellectual capacity to

understand the process, asking appropriate questions. Competence also includes

being able to manage the arbitration, not just conducting hearings but offering a

cost-efficient process and providing the parties and their counsel the benefits they

desire. An arbitrator is under a legal duty to perform his duties with due care.206

2. Character: ‘’Real integrity is doing the right thing, knowing that nobody’s going

to know whether you did it or not’’- Oprah. Arbitrators must act with the utmost

integrity; cases must be decided fairly, neutrally, independently and without any

conflict of interests. It also involves integrity and honouring trust, valuing honesty

and the goodwill of others. Character includes honouring others for their ideals,

giving parties credit for their efforts and of utmost importance is the fact that one

205
Peter Lovenheim, Mediate Don’t Litigate, How to resolve disputes quickly, privately and
inexpensively-without going to court, 127.
206
Dr. Zulkifli Hasan, Law Of Arbitration, 2nd November, 2011, Week VIII.

116
 must also respect counsels. Character therefore includes being candid throughout

the process and, when it comes to the time of decision making, and doing what is

right.

3. Courage: ‘’I learned that courage was not the absence of fear, but the triumph

over it.’’- Nelson Mandela. Arbitrators must be willing to make tough decisions

and lead others in new directions. In taking up cases as a Business Arbitrator such

as may involve entrepreneurs, investors, patent holders, foreign licenses,

distributors or corporate acquirers, a great arbitrator in each case is one guided by

the law. A great arbitrator must not be guided by passions and prejudices, and he

must hold the parties accountable to agreed terms and performance that is

reasonable and in good faith.

4. Commitment: ‘’Be a yardstick of quality. Some people aren’t used to an

environment where excellence is expected.’’-Steve Jobs. A good arbitrator has a

high level of commitment. He has a passion for arbitration; an appreciation for a

process that is private, business-focused, consensual, fair and global in reach. A

great arbitrator therefore works with counsel to develop a process that suits the

parties. They also work hard to thoroughly understand and resolve the dispute.

They must therefore in order to do this listen carefully, interact, focus on the key

issues and provide decisions that are reasoned, just and practical. An element of

commitment to his dealings as an arbitrator is most easily expressed in his

impartiality and independence. In Turner v. Builders Federal207 “…an arbitrator

must always act judicially with a detached mind and with patience. He must not

take an adversarial role and his response must be always measured and

circumspect.”

207
[1988] 2 MLJ 502

117
 5. Compassion: ‘’Courage is what it takes to stand up and speak; courage is also

what it takes to sit down and listen.’’-Winston Churchill. There is a personal side

to every business dispute and each case usually involves the parties’ passions,

ethics and pride. To be a good arbitrator one must be empathic with people, try to

appreciate what motivates them, how they feel, what they want. Arbitrators should

therefore respect differing values and cultures as business arbitrations often

involve parties from different backgrounds or countries. Being a good arbitrator

requires listening to others and taking their views into account.208

BASIC COMMUNICATION SKILLS REQUIRED OF A GOOD

MEDIATOR AND ARBITRATOR

Excellent communication is essential for mediation and arbitration to be effective.

The term covers a multitude of skills and processes and it is necessary to develop

and improve these skills. This will help to create an open, unthreatening and

constructive environment that will lead the parties to greater understanding to find

a satisfactory resolution to their dispute.

An effective mediator for example must enter the process with:

i.) A clear head and an open mind

ii.) No preconceived ideas on the merits, or otherwise of a case

iii.) No prior assessment of the weaknesses or strengths of parties

iv.) No stereotyping of parties on the basis of gender, social or professional

background, age, culture or race

v.) No solution to impose on the parties.209

208
Gary L. Benton, Silicon Valley Arbitration & Mediation Centre, What Makes A Great Arbitrator- The
5 C’s. Link is at: file:///accounts/1000/shared/downloads/What%20Makes%20a%20Great
%20Arbitrator_%20- %20The%205%20C’s%20-%20Silicon%20Valley%20Arbitration
%20&%20Mediation%20Center.html. Last accessed on the 25th of May, 2018.
209
Supra, note at 182, Communication Skills, 1.

118
Communication is a big word, but its effect in relationships is even bigger. According to a

researcher there are as many as 95 different definitions of communication. It means different

things to different people and as Shakespeare said: ‘’Nothing is good or bad, but thinking

makes it so’’. Communication for our purpose is defined as the process by which people

attempt to share meaning via the transmission of symbolic messages.

Effective communication is important in these processes for various reasons which

are obvious. If communication is defective the whole process is bound to collapse. It is how

the mediator or arbitrator reaches out to the disputants. Effective communication builds

rapport with the parties and helps them focus on the issue at stake. Where there is inability of

those communicating to convey exact meanings, some of the factors responsible for this are

the inability of those who are communicating to eliminate ambiguity, analyse the issues

dispassionately and sometimes deficiency in the use of the language of communication.210

Ten Guidelines for Good Communication

Communication has been defined as “the expression of exchange of information by

speech, writing, gestures, or conduct; the process of bringing an idea to another’s

perception.”211 Some guidelines for good communication are:

i. Before communicating your thoughts and ideas across seek to analyse and clarify

them. The more one reflects on and analyses the problem or idea to be

communicated, the clearer it becomes.

210
Ibid, 3.
211
Black’s Law Dictionary, 9th Edition.

119
ii. The purpose for which one is communicating should be examined. One should

determine what one really wants to achieve. Obtain any further information that

may be necessary.

iii. The most important goal must be identified and then language, tone and approach

adapted to meet that specific objective.

iv. The total physical and human setting should be considered whenever one is

communicating. Meaning and intent are conveyed by more than words alone.

v. Where appropriate consultation should be done with others. Such consultation

may lend additional insight and objectivity to one’s message.

vi. When one communicates one should be mindful of overtones and basic content of

one’s message. The tones of voice, expression and apparent receptiveness to the

responses of others have tremendous impact.

vii. When the opportunity arises it is good to convey something of help or value to the

receiver. When consideration is taken of another’s interest and needs this will

point out opportunities to convey something of immediate and long-term benefit,

value or effect.

viii. Communication should be followed up with question which encourages the

receiver to express his/her thoughts and reactions and also by subsequent reviews

of performances. One must make sure that every important communication has a

‘’feedback’’ so that complete understanding and appropriate action results.

ix. Actions must support communication. In the final analysis, the most persuasive

communication is not what one says but what one does.

x. One should be a good listener, seeking not to be understood but also to

understand. Listening demands concentration not only on explicit meanings but

120
 also on implicit meanings, unspoken words, and even undertones that may be far

more significant than the spoken words.212

In line with all this, it is important to note that very few mediation for example

will succeed unless the parties themselves can communicate freely and openly

devoid of any fear of compromising their case before the courts in case litigation

is resorted to.213

BASIC INTERPERSONAL SKILLS REQUIRED OF A GOOD MEDIATOR AND

ARBITRATOR

A mediator must be one who thinks globally and creatively and at the same time courteously

focuses the parties on the issue (s) at hand. 214 At all levels of daily interaction friction and

conflicts occur. To deal more effectively with people, good interpersonal skills must be

practised and developed

The value of a smile

 It costs nothing, but creates much

 It enriches those who receive without impoverishing those who give

 It happens in a flash and the memory of it sometimes lasts a lifetime

 None are so rich that they can get along without it, and none so poor that

they cannot benefit from its richness

 It creates happiness in the home, fosters good will in a business, and is the

countersign of friends

212
Ibid, 5.
213
Chariton and Dewdney (2004, p. 344) highlight mediation confidentiality as one of the key ingredients
to encourage disputing parties to negotiate with each other in order to achieve a settlement of their
dispute.
214
Source: Northern Virginia Mediation Service: http://www.gmu.edu/departments/nvms/faq_train.htm
Last accessed 6th July 2018.

121
  It is rest to the weary, daylight to the discouraged, sunshine to the sad,

and natures best antidote for trouble

 Yet it cannot be bought, begged, borrowed, or stolen for it is something

that is not earthly good to anybody till it is given away215

Among all of these there are some other basic principles that can assist and boost a mediator

or even an arbitrator’s interpersonal skills.

The Power of the Tongue

Interpersonal conflicts most often than not arise from careless use of the power of speech.

One’s tongue can heal and also has potentials for much pain and also much hurt. Most of the

hurt that one experiences from loved ones or superiors come by way of criticisms. Dale

Carnegie explains the dark side of criticism:

 It puts a man on the defensive

 Usually makes him strive to justify himself

 Wounds a man’s precious pride

 Arouses his resentment

If however one must criticise, one must apply the following:

 Begin with praise and honest appreciation

 Call attention to people’s mistake indirectly

 Talk about your own mistake before criticizing others

 Ask questions instead of giving direct orders

 Let the other man save his face

215
‘’The value of a smile at Christmas’’-an advertisement for Oppenhein, Collins & Co. by Frank Irying
Fletcher.

122
  Praise the slightest and every improvement

 Give the other man a fine reputation to live up to

 Use encouragement. Make the fault seem easy to correct

 Make people happy about doing the thing you suggest

A barber lathers a man before he shaves him. Always find what to praise before

criticizing. Lord Chesterfield told his son: ’’Men must be taught as if you taught them

not and things unknown proposed as things forgot’’.216

BASIC NEGOTIATION SKILLS REQUIRED OF A GOOD MEDIATOR AND

ARBITRATOR

Negotiation is an important mechanism for settling disputes.217Negotiation night be

defined as ‘’an attempt to influence another person through an exchange of ideas,

or something of material value.’’ It could also be defined as ‘’a process that we use

to satisfy our needs when somebody else controls what we want.’’ It may seem

strange having emphasised the neutrality of the mediator for example to introduce the

mediator as a negotiator. However, to be a more effective arbitrator or mediator it is

required that one be skilled at negotiation.

A skilled negotiator will:

 Understand the negotiating tactics and strategies being used by parties and devise

suitable strategies for movement

 Try to understand what drives the other party and the reason for their positions

 Focus on where parties want to be, not where they are

 Understand problem-solving techniques

216
Dale Carnegie, ‘’How to Win Friends and Influence People’’
217
Adapted from Alternative Dispute Resolution, A Resources Guide, published by the United States
Office of Personnel Management and the Equal Employment Opportunity Commission, pages 1-1 to 1-
6.

123
  Use relationship and group dynamics to advantage

 Use information when appropriate and of maximum effect

 Recognize value differentials as a potential for settlement, because what is of great

value to one party may be cheap to another

 Interpret bottom lines effectively

 Know how to protect the parties from losing face

 Know that the deal is not done until it is written down and signed by the parties

On a general approach, one of the major roles of the effective mediator is to help the

parties focus on where they want to be, not where they are coming from or where they

have been. A mediator with good negotiation skills is able to assist the parties to focus

on their interests, not wants or positions. When a party’s needs rather than their wants

is identified, it gives them the opportunity to recognize a shared goal. They can also

be assisted in generating options for mutual gain and the mediator can introduce

objective criteria to speed up the process.218

BASIC CONFLICT ANALYSIS SKILLS REQUIRED OF A GOOOD

MEDIATOR AND ARBITRATOR

Conflicts are inevitable and inherent in all interdependent relationships. They reflect

the diversity and complexity of human societies and are not necessarily a

dysfunctional experience. According to Dr. Daniel Dana in his book on Managing

Differences he says ‘’in every relationship, the differences that make us unique

individuals are also sources of potential conflict between us. We differ in our values,

self-interests, priorities and in many other ways. The greater the differences, the

218
Ibid, 182, Negotiation Skills, 7.

124
 heavier the burden or our ability to manage those differences.. The least effectively

we manage differences, the more conflict we experience as a result.’’219

Why Analyse Conflicts?

A lot of solutions or recommendations made during conflicts according to observation

are proffered on the basis of inaccurate analysis, which sometimes compounds the

conflict situation. What analysis helps to do is that it identifies the root causes and

formulates policies based on credible evidence. It also helps to identify all the parties

in conflict and address their needs.

Some reasons for conflict analysis are:

 Diagnosis

 Identify causes

 Assess damage

 Determine best approach

 Identify factors an forces at play- apparent or hidden

 Guard against future occurrence

 Proffer solutions

There is need to thoroughly understand ways to weave around conflicts because

conflict is as old as mankind and as long as humans hold their individual self-will

there is bound to be disagreements between individuals.220

Tools for conflict analysis

219
Ibid, Conflict Analysis, 1.
220
Paper presented at the 2016 International Day of Peace, Stakeholders Conference organized by the
Lagos State Citizen’s Mediation Centre (21st September, 2016).

125
 To effectively resolve conflicts they need to be properly analysed. To do this, certain

tools can be used. These are called Conflict Analysis tool-kits:221

1. The ABC Triangle

Here A stands for Attitude, B stands for Behaviour and C for context. They each

influence one another, and dealing with one of them that may pose least resistance

may serve as the window or entry point for the resolution of the conflict.

A (Attitude) represents positions, emotions and views of the other

B (Behaviour) represents the outward expression of attitude in the form of support,

attack, agitation, demand, plea, violence, etc.

C (Context) represents background or environment within which attitude and

behaviours develop and are played out.

2. The Onion/Doughnut Model: This model is based on relative expressions of

opposing parties’ vulnerability or needs in a conflict situation. The outermost

layer represents position; the middle layer represents interests while the core

represents the needs of the parties.

Position represents what parties are saying

Interest represents what they want

Needs represent what they must have

221
The models on conflict analysis were largely derived from the Training Manual of the Institute of
Chartered Mediators and Conciliators (ICMC), Special Mediation Skills Accreditation and Certificate
Training for Membership of the Institute, Feb 26th-1st March, 2018.

126
 This type of conflict analysis model is especially important for solving problems

between consumers and producers. It is good for the consumer to be given an

opportunity for redress when conflicts between consumers and producers arise.222

3. Mapping: Graphically the representation serves to identify all shareholders and

their relationship in a conflict. The tool uses lines and circles. A straight line

serves to represent relationship. Parallel lines represent alliance. Jagged lines

represent conflict and their power relationships in the conflict. A shaded circle

represents shadow parties, while dotted lines stand for weak relationships.

The Conflict Tree

It is another interesting and instructive means of analysing conflicts. It is the same way that

by seeing the properties of a tree like its leaves, fruits, and seeds or the size and structure that

we immediately identify the tree, so also by examining the structure and scope of a conflict,

we can decipher what type of conflict it is. Be it marital, labour, communal, political,

religious, national, contractual,223 international, etc.

The Roots represent the structural or causal factors. Though they might be invisible, the roots

are the anchor and the source of life for the tree and provide the nourishment. Examples of

root causes are injustice, poverty, economic deprivation, ignorance, ethnic prejudice, and

intolerance, corruption and poor governance. Therefore, the same way that roots left in a soil

do not necessarily produce a tree, the roots of conflict only provide the potentials for conflict.

222
Make Consumers Count- A New Direction for Irish Consumers (Report of the Consumer Strategy
Group.
223
Finkle & Cohen “Consumer Redress Through ADR & Small Claims Court: Theory & Practice” (1993)
13 Windsor Yearbook of Access to Justice 81.

127
Contributing factors like say for instance a gardener will be needed to produce the conflict

tree.224

The Trunk of a tree is the largest and most visible content of a tree. The trunk is the place

where all the roots have converged. Distinguishing the link of a trunk from a particular string

of the roots is difficult. What the trunk does is give onlookers some sort of clue about the

name and nature of the tree. There is hence a common tendency to associate conflicts with

only the visible core problems. This can be deceptive since this is just a converged expression

of many roots with particular problems. The trunk as a convergence of the roots therefore

serves to comprise dimensions of the conflict. More emphasis may be placed on one

dimension of the conflict or another depending on who is analysing the conflict and from

what vantage point.

The Branches, leaves and fruits represent the multitude of smaller conflicts or dimensions

of it emerging out of the trunk. This are sometimes referred to as the effects of the conflict.

Some examples are rise in prostitution, family conflicts because of long years of separation,

chieftaincy disputes caused by two or more chiefs being appointed by different authorities

who occupied the communities during a civil war, land disputes due to lands being sold by

different co-owners, all represent branches from a conflict tree. The conflagration of all these

in a large spread can lead to a societal breakdown as a whole. Through an extended period,

the effects of the fruits that is the seeds of a particular conflict can fall into the fertile soil,

germinate and develop a separate tree from the original tree. Immediately this happens, it

becomes imperative to address problems associated with the new tree outside the earlier one.

Though sometimes the old tree is dead and gone, the new one may still grow in strength. This

is what makes conflicts complex.225

224
Ibid, page 8.
225
Ibid, page 9.

128
Conflicts because of their complex nature require adequate training in order to be adept and

efficient at resolving them. A professional mediator or arbitrator is mandated to undergo

some basic training in order to qualify to be so efficient at resolving conflicts as quickly as

they arise. In ancient times and traditional societies, being close-knit and simplistic in their

approach to life gave ample advantage to mediators and arbitrators. In such times conflicts

presented for resolution were of a re-current nature and were mostly from fellow members of

the community. In these modern times, conflicts are usually wide-spread and more complex

because of how the world has largely become a global village. Civilization has given room to

greater transnational and complex relations arising out of trade and other related factors.

Communication, language and culture are just few of the things which pose a problem to

proper relations between people. In a world of complex relations and cultural differences,

getting adequate training at a good institute and being a certified arbitrator or mediator is a

stepping stone to carving a niche for oneself and acquiring the wherewithal for more

opportunities for oneself in the field of Alternative Dispute Resolution. This is particularly

important for countries in Africa. 226

4.2 Personality traits: Modifying of negative personality traits

Personality types differ and some heightened aspects of a personality type or trait may

make such a negative personality. People differ on a general note. Children from the

same parents may possess personality traits that are in stark contradistinction. An

226
Dr. Jean-Francois Bourque, Ph.D, Being Practical About Establishing & Managing Arbitration and
Mediation Centres In Africa: Myth, Reality and the future, Arbitration and Alternative Dispute
Resolution in Africa, 15.

129
 effective mediator must recognise others and his own personality so as to know how

to deal with them. After doing this the effective mediator must do well to identify

what negative traits he or others possess and learn to adjust them where necessary in

order to accommodate others. These traits are in four basic categories: Choleric,

Sanguine, Phlegmatic, and Melancholic. Or Driving, Expressive, Amiable or

Analytical. According to the great motivational speaker Zig Ziglar, “Motivation is an

energizer that makes you friendlier, happier, and healthier. It clears your thinking,

increases your creativity, stimulates you mentally, and uplifts you emotionally. A

motivational person is more productive than an unmotivated person. Knowing what

your motives are enables you to get motivated.”227A good mediator who is

knowledgeable about the difficulties associated with litigation will therefore do well

to equip with the required tools to make the mediation and arbitration process

easier.228

In order to avoid the common categorizations into choleric and sanguine, the

Ziglar Training system will be adopted. The programme separates people’s

personalities into four categories:

 Directive, dominant person

 Interactive, influencing person

 Supportive, stable person

 Competent, cautious person

227
Zig Ziglar, See you at the top.
228
A. Atsenuwa, ‘’Lesson Learning From Key Interventions in the Justice Component of the Security,
Justice and Growth Performance of DFID’’- Case Study Of Selected ADR Interventions In Lagos,
Ekiti, Enugu And Jigawa States. Unreported 2008. Delay and cost are reasons for the failure of the
formal adversarial justice system. The inability of the indigent and vulnerable in society to access the
Courts for justice is worsened by the high legal costs. The situation is worsened in low value claims
where justice is dented completely because the cause of action cannot justify the necessity to seek
redress in the Courts.

130
The DISC system provides a means to help one understand oneself and other people better.

Different people find different aspects of their work motivating.229

If one is a Directive, dominant person (High D) such a person needs power, control and

authority. Such a person will work better in a fast-paced environment and one that is creative

too. He will need an environment where he has authority to shape the environment to

overcome obstacles, and get results. The directive person however fears or resists being taken

advantage of. In dealing with the defects in this personality type, one needs to provide brief,

direct answers to this person’s questions. People should learn to stick also to the business at

hand, asking ‘’what’’ questions and sticking to the logic of the ideas and approaches.

Agreement on facts and ideas should also be sought. If there are detailed information to

provide, the facts should be put out into the open so that they can be related to end goals and

results.

An interactive, influencing person likes to be accepted and liked by others. Such persons

prefer to be in an environment that is fun, fast-paced with plenty of team and activities. They

want to be recognised, popular want freedom of speech, control and freedom from details.

They are independent and recognise their own abilities. In dealing with these kinds of

persons, they need to be given opportunities to verbalize their intuition, and ideas. They also

need concepts which are backed by testimonials off experts which will help to transfer talk

into action. If there is need for details they should be put in writing.

The High S is the Supportive, Stable person. They need genuine appreciation and security.

Their kind of environment is a steady-paced one. These kinds of persons want the status quo

are security conscious and want to know the risks involved in a given situation. They like to

adjust. They desire identification with a group and a structured work pattern. One must be

229
Casey Tyler, Management Profile, Everything DISC Management.

131
patient in drawing them out of their shells and presenting ideas to them which depart from the

status-quo must be done in a non-threatening manner.

The High C is the Competent, Cautious type. He needs respect, due recognition and

appreciation of his opinions and work. He wants evidence and a controlled environment with

no sudden changes. These people are analytical and love solving problems. They are quality

and detail-oriented. Their skills need to be recognized and ideas should be presented to them

in a structured format.

Summarily, people who have a dominant and influencing behaviour style perceive

themselves more strongly than their environment. They attempt therefore to shape it

according to their standards. Steady people see themselves as weaker than their environment.

On the other hand people with a dominant style of behaviour perceive their environment as

hostile. Influencing and steady styles of people see their environment as friendly initially and

are therefore non-assertive.230

In order to modify excesses or negative traits one must ask oneself these questions:

 What things have helped me to be successful so far?

 What things keep me going without my getting tired?

 What works for me?

 What do others say that I am good at?

 When am I operating at my optimal level

Therefore combining one’s strengths with one’s known personality type will give such a

person direction. When one has direction one would be motivated to perform efficiently.

Deep knowledge and understanding of the human nature is important for the effective

230
Renate Wittmann, Research Report on persolog Personality Factor Model, February, 2008.

132
mediator or arbitrator.231 Though there are certain things beyond our control, the things we

value and believe in can and do happen to shape our character. The most successful people

are the most self-aware people (Rosenfield, 2016). When an open, agreeable and

conscientious environment is created it helps to create values that are conducive and

supportive of growth and success. Thus there is the need to work towards self-development

and change. If change is deemed to be the only constant then the most successful people are

the ones who are able to control their own transformations.232

In furtherance to this objective the effective mediator or arbitrator must also realise that some

people are difficult. The Longman Dictionary of Contemporary English defines a difficult

persona as someone who never seems pleased or satisfied. Someone who is awkward,

causing a lot of problems. Someone who is hard to understand. The list is really not

exhaustive so it can also revolve around “normal people who find themselves in difficult

situations” and those whom we label as “difficult people”.

However, it is clear that there is the need to know a party properly before

terming such a party a “difficult” one. A mediator must acquire knowledge

before Mediation commences and must:

 Know his subject

 Know his parties

 Know the market

 Know the alternatives

He must do some preliminary research before the mediation begins. An

effective mediation cannot be a “blind” one. He must have knowledge

231
Ibid.
232
Link is at http://positivepsychologyprogram.com/character-traits/. Last accessed 6th July 2018.

133
 of who the parties are, what their track records comprise of if any and if

they have been involved in any previous mediation.233

4.3 Initiating the process of mediation and arbitration

Mediation procedure

In initiating the mediation process, there are five distinct phases including:

1. The opening statement, during which the mediator sets the procedural

framework for the proceeding:

2. Identification of issues, is a process during which the mediator identifies,

characterizes the issue and also determines the parties’ priorities relative to

those issues involved;

3. Structural discussion of issues’ is a part of the whole procedure during

which the mediator explores with the parties possible solutions to the dispute

in a manner that is carefully structured;

4. Movement of the parties to agreement, during which the mediator applies

persuasive pressure to overcome impasse; and

5. Closure, during which the mutually satisfactory resolutions to issues are

articulated and accepted, usually in some form of written agreement.

After the parties have agreed to resolve their dispute though an informal process or

committed themselves to appear at a scheduled meeting, then the mediation process has

commenced.234

Setting the physical arrangement of the room

233
Hon. Justice Sedoten Sosi Ogunsanya, Communication Skills: Active Listening and Strategies for
Dealing with Difficult People, Essays on mediation As An ADR Tool: Lagos State Experience, (2012),
137,141.
234
Institute Of Chartered Mediators And Conciliators (ICMC), Special Mediation Skills Accreditation
And Certification Training For Membership Of The Institute, Training Manual, March 2018, 7, 8.

134
The hearing room should be set up in a way that is most conducive to a positive proceeding.

The mediator should be located in the middle of everything so that the parties will be obliged

to talk to each other if necessary through the mediator. These details must be checked on:

 Whether there is adequate number of chairs for the parties’, their friends and

witnesses. They must be given the same kinds of chairs.

 Whether the chairs are arranged in a way that the parties are not sitting far away from

the mediator

 Whether persons are allowed to smoke in a room and if so whether there are ashtrays

 Whether there is paper and pencil for each party so that they can note the thoughts or

comments they would like to share with the mediator, and so that instead of

interrupting each other they can note those comments down for later

Meeting the parties

When the mediator meets the parties, he must take adequate care to put them all at

ease. Introductions also mean that he must decide how to handle the business of

names. He could be a Dr., a Mr or Mrs. Most people begin formally and move on to

less formal applications only after relations have become relaxed. If all the parties

arrive at the same time, it is best for the mediator to seat them in a reception area of

sorts. The goal is to reinforce their perception that the hearing room is a place only for

serious discussion. When the parties do enter the hearing room, the mediator should

be the one to determine where the parties sit.

1. The opening statement

A mediation proceeding has as its first piece an opening statement which is what sets

out for the parties a description of all that follows, including the ground rules for

hearing and role and power of the mediator. James Torr has one of the best sample of

135
 an opening statement.235 The parties must understand clearly the mediator’s role and

the rules of procedure. The opening statement no matter the circumstances must

communicate clearly the mediator’s role in the pending proceeding.

There are four basic components of the opening statement:

i.) Introducing oneself as the mediator

ii.) Establishing ones impartiality and describing ones credentials

iii.)Explaining ones role as a mediator

iv.) Explaining the ground rules that will control the conduct of the hearing236

2. Identifying issues

After accomplishing the above mentioned tasks, and concluding the opening

statement, the parties have to get involved. This begins with a complete narrative

description of the dispute by each party in turn. Most often than not the party who

has initiated the hearing or filed the complaint speaks first. Here, the parties are

given the first opportunity to express their anger, and animosity, and provides the

mediator with his or her first exposure to the nature and history of the parties’

confrontations. It is only after one party is done that the other should be asked to

immediately respond with his or her version of the events. It is only then that one

can understand how the parties perceive their problems differently and have

enough of the feel for the dispute to start identifying the issues and develop a

range of solutions relevant to the unfolding difficulty. In mediation, an issue is:

i) Any element of the dispute

ii) Expressing a party’s interest(s) or need(s)

235
James Torr 2004 (with some minor editing) available at www.staffs.ac.uk/idr/mediationprocess.html.
Last accessed 6th July, 2018.
236
An Introduction to Mediation-A Manual for Beginning Mediators’, Joseph B. Stulberg, J.D., PhD and
J. Michael Keating, Jr., M.A. J.D.

136
 iii) That which is capable of being addressed effectively in the mediation

process.

The most important contribution a mediator can provide is a structure for

the discussion of issues which would allow the parties to perceive all the

pieces of their disputes and also construct workable resolutions for each

component dispute contained in their massive confrontation. Secondly,

issues here re defined by the needs and interests of the parties. In a dispute

for example over excessive stereo volumes, the issues are not whether the

neighbour’s sleep has been disturbed. The issues rather would be the need

of one to enjoy music and the other’s need for undisturbed sleep. Finally,

only those elements of the dispute which can be addressed effectively in

the mediation process are bona fide issues.

3. Structuring the discussion of issues

When all the issues involved in a dispute are characterized and identified they

provide the raw data from which the mediator fashions his guide or agenda for

discussion. It falls on the mediator to decide where to begin the serious

discussion of issues by the parties who for the most part may not even be aware

of discrete issues that comprise their quarrel. The mediator has an option of

inviting the parties in turn to a private session called a caucus. 237 Caucusing

offers a lot of advantages.238 This is important to help the parties to reach an

agreement. Parties for example here are able to find a common ground and

237
The NCMG College, op cit.
238
Diane Levin: Mediation Channel available at- mediationchannel.com; Brad Spangler: “Caucus”; June
2003- < available at www.beyondintractability.org/bi-essay/caucus.> Last accessed 6th July, 2018.

137
 bring about possible solutions for the parties to think about without committing

themselves to offer these solutions as concessions. 239 The principle of

momentum also is an overriding principle that should direct and inform the

mediator’s choice. In order to get quick consensus, one must start with

seemingly insignificant issues or broad principles but early agreements

demonstrate to the parties that movement and consensus are possible.

4. Moving the parties to settlement

In order to bring into sharper focus the remaining areas of the disagreement

providing an ordered structure for the discussion of interest enables the parties

to make discernible progress, compatible with their interest, on issues in the

dispute. To persuade people to change their positions, the following strategies

are things the mediator might rely on:

i) Never underestimate the power of facts and logic

ii) Use certainty about facts to create doubts in parties’ perceptions

iii) Use a party’s inconsistencies to build potential resolutions

iv) Alternate discussion of the issues and proposed solutions according to

the respective vulnerabilities of the parties

v) Get the parties to focus on the future, not the past

vi) Emphasize to the parties the costs of not settling the dispute

vii) Identify mutual needs that might be met by settlement

viii) One of the most effective strategies for movement is the identification

of trade-offs in a dispute

239
Jessica A. Stepp: How Does The Mediation Process Work? In Mediate.com February 2003- available
at www.mediate.com/articles/steppj.cfm-. Last accessed 6th July, 2018.

138
 ix) By getting parties to imagine themselves in each other’s places, the

mediator may be able to introduce a valuable new perspective on the

conflict

x) Create and use a time constraint

xi) Be the agent of reality

xii) Get parties to agree on a procedure for addressing unresolved issues

At this stage one should note that it is preferable wherever possible to have

commenced option generation collaboratively because parties are more amenable to a

resolution they have had a role in formulating.240

5. Closure

There are three ways by which mediation proceedings might end:

i) The parties might agree on settlement terms incorporated in a written agreement

ii) Parties might fail to reach agreements at all obviating the need to schedule

further sessions; or,

iii) Parties might reach an agreement to adjourn the session to meet later with the

mediator after procuring additional information or consulting with their

constituencies

If the parties fail to reach an agreement and the mediator has listened carefully and

was patient while exploring with the parties all available options, the he has done as

much as he can as a mediator. He thereafter needs to remind the parties in careful and

impartial language of available options. In doing this he is expressing regret that he

was unable to render effective assistance to them and putting pressure on the parties.

240
Available at www.cityu.edu.hk/.../Notes_on_the_Facilitative_Model_Of_Mediation. Last accessed 6th
July, 2018.

139
If the parties succeed in reaching an agreement the mediator assists the parties in

writing down the terms of settlement, a task not as routine as it might appear. The

right structure is important since it entails the only tangible evidence of what the

parties have agreed to. A tip here is to list those items which obligate the parties to do

something, and listing the individual obligations incurred by the respective

individuals.

Ending the whole process on a positive note is also important. Since the parties have

achieved something tangible, it is necessary for the mediator to reinforce that sense of

accomplishment but not in a naïve but realistic manner.

Arbitration procedure

This accommodates processes which includes from establishment off arbitral tribunal

from declaration of award by the tribunal.

Formation of Arbitral Tribunals

This is obviously the primary step in arbitration procedure. A typical feature of

arbitration is the establishment of private arbitral tribunal which investigates and

resolves the case unlike government established courts. However, establishing private

tribunal by appointing arbitrator(s) through their agreement is primarily left to the

disputing parties. By consensus, arbitration agreements may provide for the

appointment of a single arbitrator. Such agreements may provide for the settlement of

disputes by arbitration, setting aside the number of arbitrators and method of their

appointment. It may also name the arbitrator and specify that each party shall appoint

140
 one arbitrator and those two shall appoint a third arbitrator. The role of a court in

arbitration in this respect is provided for example in the UNCITRAL Model Law.241

Appointment of Arbitrators

The provision of the UNCITRAL MODEL LAW for example gives power to the

court to appoint arbitrators when the provisions set out do not result in their requisite

appointment. Thus by this policy courts are empowered to appoint an arbitrator in

every case where in which there is no other machinery for making appointment.242

For arbitral proceedings there might be different procedural rules which differ from

country to country. Rules will however not override the contrary agreement of the

parties. Parties are however free to set the kind of procedure they want. This follows

the notion of arbitration as a private contractual agreement between the parties. This

also includes the freedom to agree to follow the rules of professional or those of an

organization under whose auspices the parties agree to hold arbitration. Where the

parties do not so agree or where there are no such binding rules, an arbitrator may

prescribe his own procedure. It is also vital for the parties to define the issues they are

arbitrating.

When issues are not defined there will be no focus. However, a rigid procedural

requirement may inhibit unsophisticated parties from starting arbitration proceedings

and the arbitrator can exert pressure on the parties to define their issues once before

him. The claimants are also required to state facts supporting their respective claim,

point at issues and the relief sought. This must be done within the specified time

periods agreed on by the parties as set by the arbitrator.

241
Art (3) and (4) of UNCITAL MODEL LAW ON INTERNATIONAL ARBITRATION of 1985.
242
Art 13, 14 and 15 of UNCITRAL MODEL Law gives this power to the court.

141
 There is no shortage of organizations that provide arbitration. 243 The practice and

procedure varies minimally from country to country. In India, the practice is in the

following way. Though the arbitrator could not use civil procedure which is

applicable for judicial proceedings in courts, in the absence of stipulated procedure by

disputing parties, the arbitrator is duty bound to follow “ordinary rules” laid down the

administration of justice unless he is expressly absolved from doing so. These

ordinary rules refer to rules which are applicable in Indian civil bench but do not

include all rules applicable in ordinary courts. According to Sujan, though the

arbitrator was not tightly bound to use rules and procedures observed in courts, his

procedure may not be opposed ‘natural justice’. His procedure should be that which a

reasonable man should follow in deciding the disputes impartially. He states in his

book:

An arbitrator constitutes a quasi-judicial tribunal and it is implied terms of an

arbitration agreement that appointed arbitrator will determine the disputes referred to

him according to the law of the land. Even a recital in the agreement that the arbitrator

can decide in whatever he thinks fit, cannot be interpreted to empower to him to

deviate from the law or the principle of natural justice and to base his decision on his

personal knowledge. An arbitrator is required to consider the evidence; oral or

documentary evidence placed before him and to conduct hearing in the presence of

both, parties and base his decision on that evidence. The parties will be unaware of

the contents of his personal knowledge and would have no opportunity to correct any

misconceptions that may have crept in to neutralize the assumption made; this would

result in denial of justice to the parties.

243
The leader in this field is the American Arbitration Association (AAA). This non-profit group, founded
in 1926, operates nationwide through 32 regional offices located in major cities. Private firms offering
arbitration in your community may be listed in your local telephone directory under “arbitration” or
“legal services”.

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 Preparation for Your arbitration Hearing

One must be prepared for the arbitration hearing before many other things mentioned

above can come into place or be operational. Strict rules of evidence just as in

mediation are not usually followed.244 Preparation will mean one taking time to plan a

strategy for how one will present the case. What are the points to be proven? How

best can one prove those points? Will a person call “live witnesses”? Submit

documents and photographs? Will the arbitrator be requested to inspect in person the

matter in dispute, such as a construction site, an encroaching drive way, a broken door

lock, etc.? Arbitration services conduct their hearings in accordance with a set of rules

that spell out in detail such things as duties of the arbitrator, use of confidentiality,

fees and expenses, and appeals.

The Arbitration Award

Though the length of time the arbitrator has to make an award will vary depending on

the arbitration service used, the time is generally between 10 and 30 days. The

arbitrator has a great freedom to fashion an award that will do justice to the parties. 245

The arbitrator’s award can constitute what is called “specific performance”, which

implies ordering a party to do whatever he or she was supposed to do under a

contract. The award usually constitutes a statement of who is to what; it however

does not give any reason why the arbitrator decided it that way.246 It is the practice of

244
As a general guideline, it is worth noting the advice of the American Arbitration Association gives
disputants preparing for commercial arbitration hearings: “Direct [live] testimony of witnesses is
usually more persuasive than hearsay evidence and facts will be better established by documents and
exhibits than by arguments only.
245
The rules for commercial arbitration by the American Arbitration Association (AAA) note: “The
Arbitrator may grant any remedy or relief which the Arbitrator deems just and equitable and within the
scope of the agreement of the parties…”
246
According to the AAA “[Arbitrators] are not required to explain the reasons for their decisions. As a
general rule, the award consists of a brief direction to the parties on a single sheet of paper. One reason
for brevity is that written opinions might open avenues for attack on the award by the losing party.”

143
 some arbitration services to ask their arbitrators to complete a separate longer

document called “Findings of Fact and Opinion.” The arbitrator here explains what

was concluded about the facts of the case, which witnesses or piece of evidence was

most persuasive and why the case was decided the way it was. The findings are kept

in the files of the arbitration service and are normally not made available to the parties

unless one side challenges the award in court. In fact, the main purpose of the finding

is actually to counter any charge or bias or fraud against the arbitrator or the

arbitration service. The findings become a record of the hearing and the decision

process used by the arbitrator.

4.4 Post-arbitration and post-mediation: Payments, binding and non-binding

decisions, appeals, and others.

Post-arbitration

Enforcing an Arbitrator’s Award

The arbitrator’s award is easier to enforce than a mediation agreement. Where the

arbitrator as rendered an award in ones favour and one’s opponent fails to comply one

can turn the award into a court judgement by a simple procedure known as a

“confirmation.”247The arbitrator’s award is very difficult to oppose in court. One party

coming with claims that the award strongly favours one side is not grounds to

247
In most states, one has one year from the date of the arbitrator’s award to go to court to have the award
confirmed. In this procedure, the lawyer shows the judge the arbitrator’s award, and asks him, in effect,
to make it a judgement of the court.

144
 overturn it. An award generally can be overturned or modified only if a party can

convince a judge of any of the following:

 That there was corruption, fraud or misconduct in connection with the

hearing.

 The arbitrator was biased or prejudiced

 The arbitrator exceeded his authority or made a serious mistake in

calculation

 Legal procedures were not followed correctly

Enforcement of an arbitration agreement under the UNCITRAL Model Law and the

New York Convention

The Model Law defined an arbitration agreement thus: “An agreement by the parties to

submit to arbitration all or certain disputes which have arisen or which may arise between

them in respect of a defined legal relationship, whether contractual or not.”248

According to the New York Convention, “Each Contracting State shall recognize an

agreement in writing under which the parties undertake to submit to arbitration all or any

differences which have arisen or which may arise between them in respect of a defined legal

relationship, whether contractual or not, concerning a subject matter capable of settlement

by arbitration”249
248
Article 7.1
249
Article 11.1

145
As it concerns the enforcement of an arbitration agreement, the Model Law establishes that:

(1) A court before which an action is brought in a matter which is the

subject of an arbitration agreement, shall, if a party so requests not later
than when submitting his first statement on the substance of the dispute,
refer the parties to arbitration unless it finds that the agreement is null
and void, inoperative or incapable of being performed.
(2) Where an action referred to in paragraph (1) of this article has been
brought, arbitral proceedings may nevertheless be commenced or
continued, and an award may be made, while the issue is pending before
the court.

If no appeal to the court from a decision of the arbitral tribunal recognizing it own

jurisdiction is permissible during the course of the arbitration, the courts of the place of

arbitration would therefore have the authority to set aside the eventual award. Moreover, the

court asked to enforce the award would be authorized under the New York Convention under

the New York Convention, article V (I) (c) to refuse to refuse enforcement of an award that

“The award deals with a difference not contemplated by or not falling within the terms of the

submission to arbitration, or if it contains decisions on matters beyond the scope of the

submission to arbitration…”

Post-mediation

Unforeseen events and circumstances might render the most thoughtful and well-drafted

mediation agreement moot after the hearing has closed. Therefore, sometimes an agreement

would need to be adjusted because what seemed a good solution during the hearing process

proves to be unworkable in practice, due to a mistaken assumption or wrong information by

one of the parties. Despite all these most times why agreements need to be modified is simply

because one of the parties agreed to pay a sum of money but does not have the cash available.

The mediation centre has to be available to help the disputants modify the agreement. The

mediation centre therefore has a stake in the long-term satisfaction of the agreement reached

through its services. The private dispute resolution service sees a person as a customer, and

146
the business’ ability to attract new customers or clients will depend on its reputation to help

foster agreements that work. The public mediation centre on the other hand actively monitors

closed cases to see if agreements are working well.250

Modifying the agreement

Where circumstances change and a major new issue arises that needs to be remediated in a

face-to-face hearing, the centre contracts the other side in order to obtain their consent to

reopen the hearing. The usual method is for a new hearing to be scheduled on an expedited

basis, and the centre will thereafter try to assign the original mediator so that the disputant

can skip a long review of the original dispute and get to the issue that needs to be reworked.

However, if only minor points or two need to be renegotiated then a new hearing can

probably be avoided. The staff will instead conduct “telephone shuttle diplomacy” between

the disputant and the other side in order to arrive at modified terms and will also circulate an

amendment of the original agreement for both to sign.

If the other side reneges

Though compliance with mediated agreements are higher than compliance with court orders,

there is however little comfort if one’s case is one of the few where the other side reneges.

Where the opponent fails to send a check when due, continues to call one at home late at

night when the agreement was there not to do so, the first step is to call the mediation centre.

In most centres there is a person who handles problems of noncompliance. This person

contacts the opponent, mostly by telephone and reminds them of their obligation under the

contract.
250
At some centres, a staff person will call the disputants a month or so after the hearing to see how
things are going. Other centres will simply send out a postcard involving the disputants to call the
centre if problems occur. The Community Mediation Program in Fair Haven, Connecticut, for example,
conducts follow-ups twice at two weeks, and again at two months, after mediation. At the
Neighbourhood Justice Centre in Honolulu, where more than 600 mediations are held annually, follow-
up is done 60 days after a hearing.

147
Suing on the Contract

This is a last resort when one needs to enforce a mediation agreement. It is due to the cost and

delay of the adversary system that one went to mediation in the first place. If one’s opponent

however reneges on the agreement and ignores all the persuasive efforts of the mediation

centre then the court might be a good place to go. With a well-drafted, binding mediation

agreement in hand the disputant lawyer’s job is made easier in court. If it is a valid contract,

the judge will enforce it. If one takes the case to a regular trial court, the lawyer will handle

the issue on such person’s behalf. If one goes to a small claims court to represent oneself, the

judge will probably ask about the process that led to the signing of the agreement. One can

bring alone by way of preparation a copy of the mediation centre’s rules, or even a

descriptive brochure explaining how mediation is conducted. The judge is looking for some

assurance that the haring was conducted fairly, that the opponent was not coerced into

making an agreement, and that both parties intended the agreement to be binding. Where a

judge finds that the agreement was a contract and was breached by the opponent she can issue

a judgement in ones favour for the full amount due, plus court costs and interests from the

date the money was supposed to have been paid. The judge can also order the other party to

do whatever he was supposed to do under the agreement, such as fixing the plumbing or

maybe resealing the driveway. If one has suffered damage as a result of one’s opponent’s

failure to live up to the agreement, the judge might award some money for that too.

4.5 Merits and demerits of ADR

Merits of ADR

There are advantages that come with using ADR;

1. ADR is cheaper

148
Mediation is commonly claimed to be quicker and cheaper than going to court or taking legal

action. As is expected however when mediation ends in a settlement, people think it is

cheaper and quicker than going to a court for a full court hearing. When it doesn’t end in a

settlement they then assume that it added time and cost to the court process. There are fees

for making a claim in court. In England and Wales, fees for making a small claim range from

£35 (for a claim up to £300) to £120(for a claim up to £5,000).251

2. ADR is Quicker

ADR in some forms is faster or quicker than going to court. When one is involved in a small

claim in court, for example, one’s case can go to court faster or sooner than a hearing can be

arranged. ADR in some other forms such as ombudsmen investigations can take a long time.

Where a matter has to be resolved urgently one might simply get an injunction.

3. ADR is Non-adversarial

Going to court can make a bad situation worse. The legal system is adversarial-it puts one

side against the other, at the end there is a winner and a loser. In mediation when you talk to

each other you talk to each other to find a solution you can both live with and help preserve

an on-going relationship. This is especially helpful if there is for example a dispute with ones

neighbour, ex-partner, child’s school, neighbour, and landlord. This does not mean that one

keeps silent when one disagrees or agreeing with someone when one doesn’t. It simply

involves hearing the other person’s point of view, and having them hear one’s own, and

agreeing what happens next.

4. ADR is Flexible and long-lasting

251
The fees for making a claim using the courts’ Money Claims Online service are slightly cheaper.

149
ADR processes are more flexible than the court process. Most ombudsmen investigate

complaints without a formal hearing but through letters and documents. They bring parties

for a face-to-face discussion.

Mediation for example can also produce a solution that satisfies both sides. Mediators also

encourage parties in dispute to have creative discussions about a range of options. Thus

instead of aiming at or for an acceptable compromise, they will try to end up with an

agreement which reflects the best possible outcome for all who are involved. Research on

family mediation also indicates that agreements reached through mediation most often work

out in practice an last longer than those imposed by a court. Almost all the mediated

agreements made in small claim cases are complied with and hardly need enforcement by

bailiffs. For court orders on the other hand they require the winning party to take action and

pay extra costs to enforce them.252

5. ADR encourages a full investigation

Ombudsmen have the power to investigate problems in depth, and unlike courts the

information they obtain are free to the user. Some ADR options provide a remedy where

there are few other practical, affordable options; this could include issues such as

neighbour disputes about noise or low-level anti—social behaviour, or complaints to the

Financial Ombudsman Service about financial service providers.

Demerits of ADR

1. Lower compensation amounts

252
Advice Services Alliance (ASA) Guide. Fees information contained as it relates to information in this
guide apply to England and Wales only

150
 Though ombudsmen make compensation awards, those awards are often lower than that

which might be given in a court. Research indicates that in mediation of small claim

cases, settlement amounts tend to be lower than amounts claimed. If one needs a

significant sum of money in compensation one might get a higher award through the

court.

2. Forum and jurisdiction

The forum for dispute resolution is usually informal. For example it usually takes place in

an informal setting. Also the jurisdiction of informal system is wide. It includes both

criminal and civil matters. The validity and enforceability of the decisions judgements

rely on informal structures and sanctions which remain weak generally and out rightly

unenforceable in criminal matters.253

3. Rules of procedure

The implication of this is that formal rules of procedure do not apply. There is need for

review if adjudication by informal system is to be enforced. In close relation to this is the

necessity for record keeping. Most ADR systems do not keep records therefore the

challenge of institutional memory remains.

4. Validity and Enforcement

This at the moment is a major challenge for ADR systems. When enforcement issues

are brought before the court, the concern of the courts relate to whether or not rules of

natural justice will be observed, absence of legal backing and forum of the resolution

of the dispute. Thus, the reservation of the regular courts to other dispute resolution

platforms remains an issue yet unresolved.

253
Prof. Bolaji Owasanoye, Enhancing the informal justice system in Lagos State, Essays on Mediation
As An ADR Tool: Lagos state Experience (2012).

151
152
 CHAPTER FIVE

CONCLUSION AND RECOMMENDATIONS

5.1 Conclusion

The subject of ADR is one that deserves continuous research and proper recognition by the

legal system. The legal system is what guides and interprets how behavioural patterns are to

be regulated in the society. The recognition of ADR as a primary method of dispute

resolution when conflicts arise will give ADR systems a deserved place within social

structures. In ancient times, ADR was the first resort when disputes and conflicts arose. In

modern times, it is not so. This is because it has not been so entrenched in social patterns as

to be easily appreciated despite its relentless efficiency and apparent usefulness. Alternative

Dispute Resolution (ADR) focuses on the cultivation of effective communication and

interpersonal skills. It recognises salient values such as patience, tolerance and

communication. It promotes dialogue, openness, understanding and trust capable of teaching

and encouraging people to reach consensus in personal, public and commercial disputes. It

helps people recognise that the start of dispute resolution should not terminate existing

relationships. It helps people see the ‘heart’ behind dispute resolutions which is to help every

man get his due while preserving existing relations. This is the consensus found in many

ancient cultures.254

ADR techniques work because a third party helps to eliminate or reduce the effect of some of

the main obstacles to successful negotiation. Mediation, for example enables the parties to

resume, or sometimes begin negotiations. Thus ADR systems help and encourage the parties

to turn away from the history of the dispute and look to the future of the relationship. There is

254
ADR Spectrum, Special Mediation Skills Accreditation And Certification Training for Membership of
the Institute, Institute of Chartered Mediators and Conciliators, March 2018.

153
the question of whether ADR can be introduced to issues of white collar crime. There is to

the knowledge of the author at this precise moment no single reported case where the court

and/or parties resorted to mediation or arbitration to assist with the resolution or management

of a criminal matter in most jurisdictions where ADR is regularly resorted to for the

settlement of disputes. However the practice of plea-bargaining where defense lawyers

approach the Director of Public Prosecutions or his representatives has been recognised by

the Legislature in South Africa in 2001 with the adoption of Act 62 of 2001. In the USA the

process has been recognised and approved by the Supreme Court in Santobello v New York255

whereas in England the Court of Appeal laid down certain rules of conduct where the court

accepted a limited form of plea bargaining process in R v Turner256. This process might be

vaguely similar to ADR initiatives but it is a different process from that of mediation and/ or

arbitration.257 There is room indeed for ADR in the world at large. The majority of accused

persons in the world are normally unrepresented and further burdened by language, cultural

and educational shortcomings. There is also shortage of court interpreters which make

matters worse. There is also a clear distinction between mediation in a criminal matter and a

civil dispute. According to the South Africa law Commission these are the major differences:

 The offence has occurred and consequently there is no continuing dispute;

 The parties are not equal in that the offender committed the offence totally on his/her

terms without regard for the victim;

255
404 US 257
256
[1970] 2 All ER 281
257
This issue has been the subject of intense academic discussions in the recent past. References can be
made to the following discussions as a matter of interest if interested in reading them: Reaching across
legal boundaries: how mediation can help the criminal law in adjudicating “crimes of addiction” by
Adam Lamparello and published in the Ohio State Journal on dispute resolution 16 no 2 335-389
published in 2001, Alternatives to the criminal courts: some consideration of civil and administrative
options in the process of legal regulation by Rick Sarre and published in the Caribbean Law Review 11
no 1 25-238 in 2001, A dark state of criminal affairs: ADR can restore justice to the criminal “justice”
system by Adine Levine, published in Hamline Journal of Public Law and Policy no 2,369-405 in
2003; and lastly, Remarks on case management criminal mediation published in the Idaho Law Review
40 no 3 571-622 in 2004.

154
  Mediation in the criminal justice context represents a shift towards “restorative”

justice, which views crime as the violation of one person’s rights by another;

 Mediation in the criminal context contains an aspect of reparation that is not a

component of mediation in the civil context; and

 Mediation in the criminal context especially when it forms part of the sentencing

process involves the final agreement being publicly aired in court. This would never

occur in civil mediation where the outcome is confidential and remains simply a

matter between the parties.

The case of The Director of Public Prosecutions v Tribert Ayabatwa and Six Others, 258 a case

that came before the High Court, Eastern Cape Provincial Division during 2005, best shows

how despite the conflict of introducing criminal processes the input of some of its

characteristic might serve to regulate the inadequacies in the process as a whole. Mediation in

this case just as in so many others could have played a role in determining the dispute in a

speedy, just and cost effective manner. In this instant case all the adverse publicity could

have been avoided. Also the mediation process could have been cost effective and the matter

could have been dispensed in a much shorter period. But can we truly introduce mediation

into the criminal justice system in many jurisdictions of the world at this moment in time?

The answer unfortunately is an emphatic no for the following reasons:

 The public is not ready for the introduction of ADR and it must be educated;

 The government and the various departments of justice in various jurisdictions must

be persuaded to accept the idea;

 Judges, prosecutors and lawyers will have to be educated and trained to understand

the functioning and implementation of the process; and

258
S.C.Z Judgement No. 27 of 1987 [1927] ZMSC 27.

155
  Lastly and perhaps more importantly, the perception must never be created that the

wealthy or elite involved in white collar crime can buy their way out of the criminal

justice system and are judged under a different system than the ordinary citizen.

The time has come therefore for extending the frontier of ADR into the criminal justice

system. ADR will play a positive role in the justice system in a global dimension. However it

is my candid hope and unrelenting belief that Africa is well positioned to lead many nations

into the light. There is an adage that out of Africa something new always originates. It is my

belief that as it relates to ADR such will be the case. 259 To end with the words of John F.

Kennedy “Change is the law of life and those who look only to the past or present are certain

to miss the future”.

5.2 Recommendations

The recommendations contained herein are made from the standpoint of thorough research 260

and the author’s own introspection on the subject. Some recommendations on the subject of

ADR are:

i) Provision of basic legislative frameworks

259
Dr. C. J. Amasike, FCI. Arb, Arbitration & Alternative Dispute Resolution in Africa, Extending the
frontier of Arbitration and ADR: is it not possible to Arbitrate/Mediate on white collar crime, (2012).
260
The research contained here is based majorly from the recommendations of the Law Reform
Commission. The Law Reform Commission is an independent statutory body established by the Law
Reform Commission Act 1975. The Commission’s principal role is to keep the law under review and to
make proposals for reform, in particular by recommending the enactment of legislation to clarify and
modernise the law. The role is carried out primarily under a Programme Law Reform. The
Commission’s Third Programme of Law Reform 2008-2014 was prepared and approved under the
1975 Act following broad consultation and discussion. The Commission also works on specific matters
referred to it by the Attorney General under the 1975 Act. Since 2006, the Commission’s role also
includes two other areas of activity. Statute Law Restatement and the Legislation Directory. Statute
Law Restatement involves incorporating all amendments to an Act into a single text, making
legislation more accessible. The Legislation Directory( previously called the Chronological Tables of
the Statutes) is a searchable guide to legislative changes

156
 This work contains recommendations that ADR be granted proper legislative

recognition by giving it a place in the legislative framework of various jurisdictions

and entrenching it within more international legislations. On a national level, there is

the need for more jurisdictions which have not made provisions for ADR mechanisms

to do so. For example in this work it was thoroughly revealed how that many African

nations as a whole are behind on the practise and enforcement of ADR. In line with

this, jurisdictions which might not be so willing to wholeheartedly embrace ADR as a

concept hook, line and sinker should do well to at least make it an option for dispute

settlement. In making legislations on ADR, problems might arise where the legislative

enactment is not properly drafted so as to define the means by which those disputes

should be settled using ADR methods and is not made in such a way as to embrace a

particular dispute which might not have been evinced in the mind of the drafters.

Another problem which might arise is that which comes with the ‘unholy’ practice of

wholly imitating legislations from another jurisdiction. This is despite the fact that

every jurisdiction has peculiar circumstances which define how the legislative

frameworks within those jurisdictions are made in the first place. Where this is done

what was to be a solution to a problem becomes of itself a problem. In making

legislations therefore, there is the need to understand that room for subsequent

amendments should be made as ADR being a new or emerging concept in various

jurisdictions will definitely require that with time adjustments be made concerning it.

A good legislative framework on ADR is one that must recognise and define the

problem, define the methods, the nature of disputes that method addresses and must

also not fail to recognise incidental matters and grey areas.261

261
Link on drafting good documents is at http://www.archives.gov.federal-refister/write/legal -docs/clear-
writing.html. Last accessed 6th July 2018. Here some salient principles on clear writing of legislative
enactments are elucidated and provided.

157
 ii) Teaching of ADR in schools and tertiary institutions as a core course

In many institutions where students are being tutored for the justice system, ADR is

neither offered as an optional course nor as a core course. Such students still have

their minds in most instances averted towards dedicating their time and course to the

adversarial system in resolving disputes. Many after finding out how unrealistic and

slow the formal justice system is eventually become unofficial consultants for the

informal justice system and second class supporters or practitioners of the adversarial

system, painfully so. There is therefore the need for the academic boards and

university or tertiary commissions in various countries to realise that hope for the

justice system begins with encouraging a learning process for subsequent practice in

the informal justice system.262 Where this is done, the number of people who will be

adequately trained to handle disputes in everyday circumstances and happenings in

society will increase. Official intermediaries for the settlement of disputes will also

increase. Those who are adequately trained and equipped for dispute settlement can

be life practitioners who have their time and energy dedicated to solving disputes as a

profession, but in a more efficient and resourceful manner. The need for good social

relationship skills cannot be over-emphasized, this must be re-echoed during their

training process.

iii) Encouraging further research on the subject of ADR

There is little or no research been done on the subject of ADR. That is the reason why

in many African jurisdictions ADR is not a primary or popular tool for dispute
262
Ben Waters in his article The importance of teaching dispute resolution in a twenty-first century law
school says that civil justice reviews over the past 20 years have encouraged the use of alternative
dispute resolution. (ADR) and particularly mediation. He says that what is lacking is a corresponding
appreciation of the changing attitudes to the teaching of dispute resolution in the majority of UK law
schools (using the schools in the UK for a case study). To him the promotion of adversarial methods
appears to remain the focus as the primary and only method of dispute resolution. More information is
contained at www.tandfonline.com.

158
 resolution. It will do a whole lot of good for African countries to imitate some

developed countries of the world in respect of ADR. A good research on ADR will

reveal more means and methods for the efficient settlement of disputes within the

society. It will help people to see the psychology behind disputes, the need to

maintain relationships despite disputes, ways to enhance relationships after disputes,

and how that disputes and conflicts go hand-in-hand with normal social encounters

and are an automatic product of social contracts, and other unavoidable social

relations. There is the need for government-funded institutions to aid the cause of the

informal justice system. The government must spearhead this movement because of

its financial stamina and in order to encourage those who are already involved in the

formal justice system to begin to apply their findings from research in the informal

justice approach to dispute settlement. It should be noted however that not all research

need to be empirical. The use of policy analysis and research are also important as

well. LaFree and Rack, 1996; 793, Astor indicated the need for policy research such

as developing mechanisms for dealing effectively with mediator misconduct, in light

of requirements of confidentiality and immunity protections.263

iv) Enhancing sensitization within the society to aid patronization

Many people do not go the Alternative dispute resolution forums for dispute

resolution because they are either unaware of the systems or are not sure on how to go

about it. A good recommendation here is one that encourages advertisements through

the mass media and information by the courts not only encouraging parties to resort to
263
The need for good research about the civil justice system as a whole as well as ADR processes has
been noted in the Australian Law Reform Commission, 1997). The major need in this area been that of
a benchmark or industry standard. The central policy research question in court-connected
mediations was also put forth by Della Noce (2002:556): Court connected mediation programs…are at
a crucial...stage of confronting their limits and re-examining their own claims, what is the real value of
maintaining court-connected mediation programs? If there are values beyond case management
[what are the] programs and policies that will achieve these values?”

159
 mediation but in some instances enforcing it. The Lagos Multi Door Courthouse

option is a good example of how sensitization can be encouraged by the courts as it

concerns ADR.264Sensitization will aid patronization. In actual fact, why most people

are not habitually disposed towards approaching the informal justice institutes to help

settle disputes, the few institutes that re available is because they are by virtue of long

standing practice and habits safer with approaching the formal justice system despite

its obvious and ever-growing inefficiency. In line with this therefore is the need to

sensitize people about the grandiose and efficient nature of informal justice systems,

the simplicity it proposes, the ability to cement breaking bonds among people, how it

appeals to the heart rather than merely the mind of all the parties involved, how it is in

many respects a modified, refined and more advantageous approach to dispute

settlements.

v) Provision of more institutions and structures for the training of ADR

staff and other ADR personnel265

The structures which would enable ADR to become entrenched in the society as to be

recognised as the first port of call is not yet adequate enough to make ADR in itself

popular enough. The best solution for this problem is obvious enough. Institutions,

264
Mediation under the auspices of the Lagos Multi-Door Court (LMDC) is governed by the LMDC
Practice Direction on Mediation 2008.
265
This recommendation also includes the requirement that every in making more institutions for
training of ADR personnel and all collaborative practitioners who are engaged in collaborative
practice(especially for the unregistered practitioners) would as a corollary to this obtain initial(where
they have not been so trained)and further training(including continuing professional development) in
collaborative practice. “The term collaborative practice” has developed in Ireland, most notably in the
context of family law disputes. Collaborative practice is closely connected with mediation and
conciliation.

160
 schools, training facilities and programmes must be adequately provided to solve the

problems of inefficiency. There are too few ADR personnels and institution for the

too numerous instances of conflicts in everyday relationships. The institutions and

training personnels who are adequately equipped to handle a whole variety of disputes

are not enough for the incessant reoccurring disputes within the society. The few who

are available are either uncertified, inadequately trained or are inadequately paid for

their work and experience. The solution to this is to apply findings from research and

build facilities and organise various training programmes to equip ADR personnels

with all the wherewithal need to become efficient intermediaries for the settlement of

disputes. There is the need to have Professors and learned teachers within this field

dedicated to the training of young intermediaries. This is a global issue; the issue of

conflicts crosses beyond borders, the need for peace is one of the few things that bind

us together. Learned teacher sin this field must therefore be willing to cross borders to

impart their knowledge to upcoming intermediaries and ensure top-notch training.

vi) Publication of ADR successes on a national and international level

ADR has more successes to boast of than the formal justice system. 266 Beyond the

many instances of success that one can point to, its greatest successes are successes of

the ‘heart’, its ability to maintain existing relationships between the disputants. ADR

has many recorded successes especially when it relates to international mediation as

266
In the last 20 years, mediation has become one of the most commonly used tools of conflict
resolution, employed by states, international organizations and other actors. The increased frequency
of mediation is partly a result of supply – there have been, unfortunately, many wars to mediate – but
it is also a function of structural factors, such as geopolitical shifts, democratization, and greater
willingness of combatants to seek help from third parties. International Mediation, J. Michael Greig
and Paul F. Diehl Cambridge, UK: Polity Press, 2012

161
 concerns war. These should be publicised and advertise by the informal justice

system. It is only when people become aware of the successes of the informal justice

system that they can have confidence in it and encourage others to approach it. The

successes of ADR must therefore be advertised, publicized and spread through simple

means and methods. Though some methods of ADR are bent on confidentiality, they

do not border so much on suspicious secrecy as to prevent the general public from

being aware of the broad process involved in reaching an agreement and the award

reached after the agreement between the parties. Efficient post-relationships are also

proof of the success of ADR and should be publicised. That in most instances most

people do not go to war again after reaching an agreement through ADR methods is

enough reason to publicise its success

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DICTIONARIES

Black’s Law Dictionary, Free Online Legal Dictionary, 2nd Edition.

Greenberg, Alexandra Milbrook, Fredrick Stroud. Stroud’s Judicial Dictionary of Words and
Phrases.
The Longman Dictionary of Contemporary English

ARTICLES/JOURNALS/CONFERENCE PAPERS

A dark state of criminal affairs: ADR can restore justice to the criminal “justice” system by
Adine Levine, Hamline Journal of Public Law and Policy no 2,369-405 in 2003.

Arbitration-Commercial Disputes, Insurance and Tort Claims (A. Widiss ed., 1979).

Atsenuwa, A. Lesson Learning From Key Interventions in the Justice Component of the
Security, Justice and Growth Performance of DFID- Unreported 2008.

Bendeman, ADR in the Workplace- The South African Experience (2007) 7 African Journal
on Conflict 1 at 139.

Beber, Bernd. International Mediation, Selection Effects, and the Question of Bias, 2012.

Bourque, Jean-Francois. Being Practical About Establishing & Managing Arbitration and
Mediation Centres In Africa: Myth, Reality and the future, Arbitration and
Alternative Dispute Resolution in Africa.

Brainch, B. ADR in the World: an African perspective on Community Mediation, CDRC

Regional Conferences 2006-2007: at Fordham Law School NY Unified Court System
ADR programme.

Bourgeois, Resolving Employment Cases through Mediation (2007) 70 Texas Bar Journal

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 Issue 7.

C. Ronald Ellington, A Study of Sanctions for Discovery Abuse (1979).

Callanan Neutralising Property Disputes: The Role of Mediation (2009) 14(4) CPLJ98;

Chan Leng Sun. The Arbitration Chapter in the Unicitral Draft Transport Law ICMA XVI
Congress Papers Singapore 2007.

Conway, Recent Developments in Irish Commercial Mediation: Part 2 (2009).

Consumer protection in the internal market (Special Eurobarometer 298, European

Commission, October 2008) at 50.

Davenport, Forgive and Forget: Recognition of Error and Use of Apology as Preemptive
Steps to ADR or Litigation in Medical Malpractice Cases (2006) 6 Pepp Disp Resol L
J 81.

David Tupper. Litigation vs. Arbitration, Back to school symposium, August 25, 2011, CLE-
ACC Houston.

Denys Nicky, Rebecca Axe, Parties, and Jane Fitzgerald, Trainee Solicitors- Inc. & Co,
Privacy in Court proceedings and Confidentiality in Arbitration- A Comparison
LMAA Law Review 2004-2007.

Dieng. A., ADR in Sub-Saharan African Countries in Revenue. Africaine du Droit des
Affaires no 1 2010.

Dobbins ‘’UNCITRAL Model Law on International Commercial Conciliation: From a Topic

of Possible Discussion to Approval by the General Assembly’’ (2002) 3 Pepp Disp
Resol L J 529.

E. O. Ezike, Developing a statutory framework for ADR in Nigeria, The Nigerian Judicial
Review, Faculty of Law, University Of Nigeria, Enugu Campus Vol. 10, (2011-
2012):10.

Gadzama, Joe Kyari. Integration of Arbitration, Mediation and Conciliation in Dispute

Resolution Management, Arbitration and Alternative Dispute Resolution in Africa,
Johannesburg, South Africa.

Galton. Mediation of Medical Negligence Claims (2001) 28 Cap U L Rev, 321.

Gatty Drawing the Line (2007) 151 Solicitors Journal 3.

Highmore & Beswetherick, Where neighbours should fear to tread (2008) 841 Estates
Gazette 151.

Howard M. Haltzmann. The Value of Arbitration and Mediation in Resolving Community

and Racial Disputes Affecting Business, 29 Bus Law.1005 (1974).

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Hussey-Dowling. Conciliation: Coming out of the shadows? (2009) 16(3) CLP 48.

Idaho Law Review 40 no 3 571-622 in 2004.

Idid. Dato’ Syed Ahmad. Alternative Dispute Resolution (ADR) An Alternative Access to
Justice.

James Spigleman, International Commercial Litigation: An Asian Perspective. (Speech

delivered at the Biennial LAWASIA Conference, Hong Kong, 7 June 2007).

Johnson. The Case for Medical Malpractice on Mediation Panels (2000): 46, Journal of
Medicine and Law 2.

Jolly A Surburban Nightmare (2010) 30 Law Society Gazette (Eng. & Wales) 20.

Kelman, Ilan. Types Of Early warning Systems, UNISDR, Developing Early Warning
Systems: A Checklist.

Laurence Silberman, Will Lawyering Strangle Democratic Capitalism? Regulation,

Mar/Apr.1978, at 15.

Law Reform Report, Alternative Dispute Resolution: Mediation and Conciliation (2010).

Matthews, Call for Radical Reform of Family Law Court System [2009] 12(4) IJKL.

Metzloff et al. Empirical Perspectives on Mediation and Malpractice (1997) 60 Law &
Contemp Probs 107.

Morgan & O’Connor Resolving property disputes, Universal service- a value for money
solution? (2003) 10(4) CLP 96.

Mustill, ‘’Arbitration: History and Background’’ (1989) 6 Journal of International

Arbitration, 43.

Muyanja, Jimmy M. The Growth of ADR in Uganda: Lessons for Africa, Arbitration
Alternative Dispute Resolution in Africa, 2016.

Ohio State Journal on dispute resolution 16 no 2 335-389 published in 2001, Caribbean Law
Review 11 no 1 25-238 in 2001.

Peter McClellan, Dispute Resolution in the 21st Century: Mediate or Litigate? (Speech
delivered at the National Australian Insurance Law Association Conference, Hamilton
Island, 17 September 2008).

Raymond G. Leffler, Dispute Settlement Within Close Corporations, 31 ARB.J.254 (1976).

Report of the Family Law Reporting Committee to the Board of the Courts Service at 33.

Rhodes-Vivour, Doyin. The Agreement to Arbitrate- A Primary tool for the Resolution of
Maritime Disputes.

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Rhodes-Vivour Adedoyin (Mrs), Arbitration and Alternative Dispute Resolution As
Instruments For Economic Reform, delivered at the Nigerian Bar Association
(Section on Business Law) Maiden Conference held in Abuja on 27th-29th March
2006, 6.

Robert F. Peckham. A Judicial Response to the Cost of Litigation: Case Management, Two-
Stage Discovery Planning and Alternative Dispute Resolution, 37 RUTGERS L.
REV. 165, 181 (2003).

Robert McDougall. Courts and ADR: A Symbiotic Relationship, Paper delivered at the
LEADR & IAMA Conference on 7 September 2015, Sydney, NSW.

Richard E. Miller & Austin Sarat, Grievances, Claims, and Disputes: Assessing the
Adversary Culture, 15Law and Society Review, 525 (1981).

Schwebel, ’’A celebration of the United Nations’ New York Convention’’ (1996) 12
Arbitration International 823.

Stanley Mosk, “Arbitration Versus Litigation” (Speech delivered at the Conference on

Arbitration, Los Angeles, 14 November 1952).

Stephen, Ninian, Yf by Theyr Good Dyscretions (1991) 26 (7), Australian Law News 42.

Susskind, L. E. Consensus Building and ADR, Why They Are Not the Same Thing, in The
Handbook of Dispute Resolution, 2005.

Teague-New Employment Times and the Changing Dynamics of Conflict Resolution at

Work: the Case of Ireland (2006) 28 Comp. Lab. L. & Pol’y J. 57 at 65.

Timothy S. Hardy & R. Mason Cargill, Resolving Government Contract Disputes: Why Not
Arbitrate? 34 FED. B.J.I (1975)

Tserng Tang, Analysing dispute mediation cases of infrastructure projects through project
life cycle (December 2009) 5 Structure and Infrastructure Engineering 6 at 515.

Wayne D Burger, The Adversary Character of Civil Discovery: A Critique and Proposals for
Change, 31 Vand L. Rev. 1295 (1978).

Wetter, ‘The Present Status of the International Court of Arbitration of the ICC: an
Appraisal’ (1990) 1 American Review of International Arbitration 91.

Xiaohui (Anne) Wu and Cheng (Jason) Qian. Culture of China’s Mediation in Regional and
International Affairs.

Yee, Mandatory Mediation: The Extra Dose Needed to Cure the Medical Malpractice
Crisis (2007) 7 Cardozo Journal of Conflict Resolution 39.

HANDBOOKS, GUIDES, REPORTS AND CONTRIBUTIONS

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1 The Private Correspondence of Benjamin Franklin 132 (3d ed., 1818).

A Guide to Arbitration and Dispute Resolution in APEC Member Economics, International

Commercial Disputes.

Adam Rattray. Key Features of Arbitration, September 18, 2014, Danube Initiative Summer
School, Budapest, Hungary.

Advice Services Alliance (ASA) Guide.

Alternative Dispute Resolution, A Resources Guide, published by the United States Office of
Personnel Management and the Equal Employment Opportunity Commission.

Casey Tyler, Management Profile, Everything DISC Management.

Christoph Leon and Irina Rohracher’s contributions to EU Mediation Law and Practice,
(edited by Professors Giuseppe De Palo and Mary B. Trevor).

Director-General for internal policies, policy department citizen’s rights and constitutional
affairs C, Rebooting the Mediation Directive: Assessing The Limited Impact Of Its
Implementation And Proposing Measures To Increase The Number Of Mediations In
The EU, 17.

Dr. Paola Cecchi Dimeglio’s contribution to The Variegated Landscape of Mediation

Regulation, (edited by Manon Schonewille and Dr. Fred Schonewille).

Dr. Zulkifli Hasan, Law Of Arbitration, 2nd November, 2011, Week VIII.

Frédérique Ferrand’s contribution to Regulating Dispute Resolution: ADR and Access to

Justice at the Crossroads, (edited by Felix Steffek and Hannes Unberath).

Guidelines on Conflicts of Interest in International Arbitration.

Handbook of the Society of Maritime Arbitrators New York Fourth Edition page 1.

Institute of Chartered Mediators And Conciliators (ICMC), Special Mediation Skills

Accreditation And Certification Training For Membership of the Institute, Training
Manual, (Feb 26th- 1st March).

Jean Georges Betto and Adrien Canivet’s contributions to EU Mediation Law and Practice,
(edited by Professors Giuseppe De Palo and Mary B. Trevor).

Kingsley Kwabena Kessie Affrifah, A Tool For Conflict Resolution in Africa-Ghana as a

Case study, March 2015, 32.

Lyubka Vasileva-Karapanova’s contribution to The Variegated Landscape of Mediation

Regulation, (edited by Manon Schonewille and Dr. Fred Schonewille).

Make Consumers Count- A New Direction for Irish Consumers (Report of the Consumer

168
 Strategy Group.)

Marianne Roth’s contribution to The Variegated Landscape of Mediation Regulation, (edited

by Manon Schonewille and Dr. Fred Schonewille).

Mwenda, W.S. Paradigms of Alternative Dispute Resolution and Justice Delivery in Zambia,
Doctoral Thesis University of South Africa. November 2006.

Legal Instruments and Practice of Arbitration in the EU, Directorate-General for Internal
policies, Policy Department Citizen’s rights and constitutional affairs C, 54.

LMDC Practice Direction on Mediation 2008.

Powell- Boundary Dispute Resolution in England & Wales –Surveyors and Lawyers Working
Together to Resolve Problems (February 2005) International Federation of Surveyors.

Professor Tetley. Marine Cargo Claims (4th Edition to be published in 2008, Chapter 28 p. 3
note 2)

Renate Wittmann, Research Report on persolog Personality Factor Model, February, 2008.

Sevdalina Aleksandrova’s contribution to EU Mediation Law and Practice, (edited by

Professors Giuseppe De Palo and Mary B. Trevor).

The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal
Jurisdiction – A Report to the Attorney General (NADRAC, September 2009).

United Nations Handbook on the Peaceful Settlement of Disputes between States (1992).

NEWSPAPER

‘’The Punch’’, Saturday July 25, 2009, 9.

ONLINE SOURCES

Alternative Dispute Resolution Act 1998 http://www.epa.gov/adr/adra_1998.pdf

Buckley, Employment Cases on the Rise (August 2009). Online article available at
http//www.hrri.ie/hrri/index.php?option=com_content&view=article&id=156:employ
ment-cases- are-on-the-climb&catid=34: legal-resources&Itemid=56.

Bunni. The FIDIC Forms of Contract (Blackwell Publishing 3rd ed., 2008)
See www.lrc.ie.

Chancery Guide (HMCS, 2009). Available at: www.hmcourts-service.gov.uk.

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Conflicting priorities – best practice in conflict management, (CEDR, September 2008).
Online article available at: www.cedr.com.

Diane Levin: Mediation Channel available at- mediationchannel.com; Brad Spangler:

“Caucus”; June 2003- < available at www.beyondintractability.org/bi-essay/caucus.>

Dispute Resolution, Hamburg.com,

http://www.dispute-resolution- hamburg.com/mediation/what-is-mediation.

Gary L. Benton, Silicon Valley Arbitration & Mediation Centre, What Makes A Great
Arbitrator- The 5 C’s. Link is at:
file:///accounts/1000/shared/downloads/What%20Makes%20a%20Great
%20Arbitrator_%20-%20The%205%20C’s%20-%20Silicon%20Valley
%20Arbitration%20&%20Mediation%20Center.html.

Greatholder “Boundary Disputes” (April 2010), online article available at: www.russell-
cooke.co.uk.

International Centre for Settlement of Investment Disputes, online:

http://www.worldbank.org/icisd/about/about.htm.

James Torr 2004 (with some minor editing) available at

www.staffs.ac.uk/idr/mediationprocess.html.

Jessica A. Stepp: How Does The Mediation Process Work? In Mediate.com February 2003-
available at www.mediate.com/articles/steppj.cfm-.

Kelly “The United States experience International Forum on Family Relationships in

Transition Legislative, Practical and Policy Responses, December 2005. Available at
http://www.aifs.gov.au/.

Mummery slams feuding neighbours –again (July 2010) Solicitors Journal

www.solicitorsjournal.com.

Northern Virginia Mediation Service:

http://www.gmu.edu/departments/nvms/faq_train.htm.Pienaar,

Overcoming resistance to workplace mediation (2009). Online article available at:

www.adrgroup.co.uk.

“Preventing and managing international commercial disputes-Towards a EuroMed

Alternative Dispute Resolution Infrastructure”. Closing speech delivered at the
Conference on Alternative Dispute Resolution, Rome, 289 September 2007. Available
at www.adrmeda.org.

Public Services and Procurement, Canada: https://www.tpsgc-pwgsc.gc.ca/biens-

property/sngp-npms/bi-rp/conn-know/reclam-claims/definition-eng.html.

Report of the Working Group on Mediation (Hong Kong Department of Justice, February

170
 2010). Available at: www.doj.gov.hk.

Tarlow, Mediation of Construction Disputes (2008). www.ramco-ins.com.

The Fourth Mediation Audit (Centre for Effective Dispute Resolution, May 2010). Available
at www.cedr.co.uk.

UNCTAD International Commercial Arbitration Module at

http://www.unctad.org/en/docs/edmmisc232add38_en.pdf.

adrr.com/adrl/essayl.htm.

http://thelawdictionary.org/dispute/

http:en//.m.wikipedia.org./wiki/Gun_control.

http://voelkerrechtsblog.org/the- history- and-development-of-a-dr-alternativeappropriate-

dispute.

http://www.archives.gov.federal-refister/write/legal -docs/clear-writing.html.

http://positivepsychologyprogram.com/character-traits/.

https://en.m.wikipedia.org/wiki/Arab_Spring.

http://en.m.wikipedia.org/wiki/Damascus_Spring.

http://www.fig.net/pubmonthly_articles/february_2005/powell_february_2005.pdf.291.

www.Ibanet.org/pdf/internationalarbitrationguidelines. Phillip Capper.

www.uncitral.org.

www.cedr.co.uk.

www.nadrac.gov.au.

www.civilmediation.org.

www.cityu.edu.hk/.../Notes_on_the_Facilitative_Model_Of_Mediation.

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