By Chinelo Audrey Ofoegbunam
The reality is that the pandemic is not over because we are still neck-deep in the pandemic. I mean a lot of countries are shutting down for the second phase and statistics show that it may be worse than the previous. So, yeah, that’s our new normal.
Archeologically, the methods used to resolving disputes1 ranged from interventions of traditional rulers to courtroom litigation, and even to physical combat. The legal needs of countries, multinational companies, and ordinary people have changed over time. Over time, businessmen, organisations, and individuals have learned that it is more advantageous to reach practical and private agreements than to fight for years and spend huge amounts of money in courtroom battles. Due to the vast amounts of time and money involved in the trial process, countries and business communities have increasingly turned to legal alternatives that are more prompt, private, and economical than the courtroom.
Alternative dispute resolution is a process in which a neutral third party helps parties who are involved in a dispute to come to an agreement.2 It refers to the wide spectrum of legal avenues that use means other than trial to settle disputes. These alternatives to civil litigation are adjudication, expert determination, ombudsman, executive tribunal, neutral fact-finder, negotiation, arbitration, conciliation, mediation, early neutral evaluation, med-arb, arb-med, mini-trial, summary jury trial, and the judicial settlement conference.
Most African countries recognize the existence of alternative dispute resolution mechanisms in the judicial system including the traditional mechanisms because the use of the various ADR mechanisms have proved to be more effective in resolving disputes, particularly in tribunals, they are expeditious, private, and relatively less expensive than a trial. While each of these ADR processes may be effective in various circumstances, some countries have a preference, which over the years has proven to offer superior advantages for the resolution of disputes that resist resolution.
∆ Challenges of the pandemic.
The unforeseeable pandemic sure caught the entire nation unprepared, and with no proven and available solution. We have not gone past the pandemic because records show that it has spread wide and the numbers increase by the second. However, there are positive and negative effects of this pandemic in our society, more so from the stay-home directives by medical personnel and the lockdown directives of the Government.
The positive spanned from creating virtual proceedings, bonding with family, checking up on loved ones, and an overall reflection on life in general. However, the snags to the pandemic were delays in the resolution of disputes because it obstructed physical interactions between disputants, poor network provision, loyalty shocks, poor communication with clients, trusts deficits and loss of trust in the judicial system, loss of foreign investors, lack of consistency and standardization of practices across ADR mechanisms, amongst others. Altogether, these discouraged the functionality of the ADR mechanisms and generated a gap between where the ADR Mechanisms were to the current state.
To resolve these issues, Africa needs to improve its sustainable development and stimulate economic growth by building confidence in foreign investors, and institutions. The World Bank’s ease of doing business rankings considers ADR as an indicator of the enforcement of contracts, and there needs to be better coordination between actors. It is even so fundamental and pivotal to the access of justice in human rights. Therefore, there is a need for the creation of a structure for the use of ADR in Africa.
∆Resetting the wheel of Alternative Dispute Resolution in and post COVID-19 pandemic era.
The way forward:
Evolve with the new normal, Technology!
A catalyst for enabled levels of performance that were hitherto inconceivable for the transformation of the production of legal commodity or market in the world over. It offers opportunities for a much wider, multi-lateral, and distributed scale. It constantly shifts as it revolves.
Although this lifestyle change seems a bit slow mostly in the adoption of Information and Communication Technology compliance, smart and exciting technologies such as machine learning, and data analytics, in the delivery of services and one that expands access to justice.
Now, you would agree with me that the impact of digitalisation is obvious.
It inevitably affects the proceedings for poor or no power supply, because technologies such as the computers, televisions, speakers, data bandwidths, and a platform like this, etc., all depend on the quality of voltage, power supply, or energy available.
Therefore, we must create some sort of collaboration and private engagement or partnership between the telecommunication network providers, the Disco’s or alternative Power supply; and the ADR institutions or the arbiter. That way, they have shared interests and would ensure the required and uninterrupted network is adequately provided. Most importantly because, the technological revolution in generating, storing, managing, and disseminating information that all the ADR Mechanisms acquire, is substantially about effectively gathering, deploying information, and aiding in the administration of justice.
Training and Re-training.
We live in the age of disruption. To such an extent, and at such a speed that due to the vast nature of the work involved, the age-old practice legal systems, and individual work styles, expose the elementary lack of process in the judicial system which makes overload often leads to inaction. There is a need for schooled standardized templates and systems to shift from “people dependency” to “process dependency”. This is a must-have for a sustainable future.
We however have to remember that with people and the ever-evolving new and disruptive technologies present risk which is one area the ADR Mechanisms, we cannot compromise on. With an emphasis on the fact that it is where the future lays, for example, smart legal contracts, and not on the misconceived notion of smart contracts somehow replace the infrastructure of contract law.
We must, therefore, embolden the Bar and ADR specialists to brace up to the occasion, train, and retrain, with emphasis!!! And adapt the use of technology by the determination of the production of paper, and discouraging longhand or paper use; then encourage capacity development needs and coordinated strategies for institutionalizing ADR across all sectors. This is because accessibility overrules change.
Therefore, there is a need to unlearn the use of paperwork and anticipate sector realities. It is the best practice process that helps lawyers to retain clients and ADR specialist to reach an orgasmic feat, by delivering excellent services. The way forward is to drive all elements of change in culture and mind-set.
Networking is the exchange of information and ideas among people with a common profession or special interest, usually in an informal social setting. It often begins with a single point of common ground; It is used by professionals to expand their circles of acquaintances, to find out about job opportunities in their fields, and to increase their awareness of news and trends in their fields or the greater world.3
For example, while, a mediator would discuss the enforceability of the mediation and conciliation Act;4 an arbitrator will highlight the fact that an arbitration award is legally binding on both sides and enforceable in the courts,5 an arbitral secretary with the ACCI DRC will strategically inform his counter paths of the provisions of Article 17 which deals with efficiency in terms of timelines, even-handedness, and inclusiveness.6
Effective communication and networking are important. I dare say that we must master the act of taking opportunities thrown at us.
More so, there are so many networking platforms, one can choose from the various forms of networking such as maintaining membership with Rotary International, Professional associations, alumni associations, the Toastmasters association, or religious associations. So long as the desired goal is achieved and net worth increased. This is because our Network determines our Net worth.
Having an operative social media Alternative Dispute Resolution awareness scheme is very important. Social media is an excellent tool for awareness, where customers are engaged with brands and showcases that a company intends to project. The platforms are global thus they connect us in many ways than we could imagine. It shares information and updates instantaneously with the networks of connections we’ve built, and are subsequently flooded with updates from those same networks. One post can change the mind; one comment can change a generation.7
As it is inevitable in life, human relationships exist from disagreement to agreement and vice versa. While some need mediating or counselling, others need an arbiter but are discouraged by the delay in the traditional litigation system of resolving disputes or do not know that they need one or a neutral arbiter until problems crop up in relationships.
Social media is our friend, and we must make adequate use of that space.
We also need to make a list of regular media houses to engage and partner with. Invite them regularly for events such as cocktails and luncheons.
We must also frame properly and use the right hash tags when posting tips and events on ADR activities.
The need to aggressively market the advantages of the services of the ADR Mechanisms such as the sustenance of business relationships, resolution of pre-dispute relationships, public satisfaction with the justice system, increase in voluntary compliance with resolutions that perhaps optimize returns on investment, and even increase in foreign investments; to the public cannot be overemphasised.
It is a crucial element to sustaining the dispute institutions in Africa.
As dispute professionals, we must be deliberate, bold, and think outside the box to be different. Oh yes! We must.
We must acquire strong communication skills crucial to succeeding in resolving disputes and our services must be top-notch.
It is time we see ADR as a company or a business that must be treated with care, love, determination with set short and long-term goals that have a heart, and perhaps, can think for itself. This means that in marketing the brand, for example, The LEGALTIPS- you have to be would change the lives of its readers, right?!
So there must be a market survey and all that comes with running a business to stand out, to be obvious, and overcome the challenger by a successful resolution.
For that reason, your clients will always place a premium on you if the disputes are resolved without rancour effectively.
They will also come back and refer others to you.
Note that, it may not always be a win-win situation but the fact that you put in your best to adequately resolve a dispute, you can go home with a path at the back.
Thus, for ADR to thrive and remain in the space or business of resolving disputes, we must be deliberate.
There may be a need for a unified voice for the review of the laws, enacting legislation that would affect positively on the current temporary issues such as equal opportunities for all, renewable energy or carbon and resolve lacunas, like conceptualize the creation of a policy roadmap for the development of the ADR framework in all African Countries, including issues for the commercial justice sectors and the needs of all ADR justice systems as we live with the pandemic or post COVID-19; we must appreciate, tap synergies, risks and opportunities to ensure harmonization in strengthening the ADR Mechanisms.
That way we can rescue the Alternative Dispute Resolution Mechanisms in the whole of Africa.
No one can actually predict the future, but something must give!
Therefore, one day like a phoenix rising from its ashes, with our heels kept high and our standards to the sky, the Alternative Dispute Resolution Mechanisms would be the other of the day.
It sure would be a gradual process but it is achievable.
- Webster’s Universal Dictionary and Thesaures (Geddes & Grosset)
- The Arbitration And Conciliation (Amendment) Act, 2019
- Abuja Chambers of Commerce and Industries, Dispute Resolution Centre Rules, 2017