Alternative dispute resolution mechanisms trace back to the very origin of mankind. Today, the spectrum of dispute resolution mechanisms in Africa is shaped by multiple legal orders, which include (a) informal community-based justice systems; (b) traditional dispute resolution mechanisms; (c) commercial arbitration and ADR (either backed by statute or founded on contractual relations); and (d) the conventional judicial system. It is believed that only a small fraction of disputes escalate and find their way into conventional judicial institutions while most are resolved through a diverse range of ADR mechanisms, which play a critical role in peace-building and maintenance of wholesome family and business relations.
The fact that conflicts are an integral part of human relations, their effective management and the resolution of ensuing disputes become critical to the maintenance of social order and the very existence of communal life. It is no wonder that conflict management and dispute resolution strategies have evolved over the centuries in response to the diverse social needs, norms and standards of fairness in their endeavor to balance and resolve competing interests.
Over the years, it was hoped that ADR would offer practical solutions to the impediments that characterize the administration of civil justice in commonwealth Africa. Indeed, ADR was often viewed as a universal remedy for the afflictions with which our modern-day civil justice systems are identified. However, this supposed panacea has itself fallen ill with multiple wounds inflicted by ill-fitting policy, legal and institutional frameworks, not to mention the slow pace at which the legal profession and court users move towards internalizing the value of alternatives to litigation. It is true to say that the journey has been long and the promised land far from view. However, ADR is picking pace, and its benefits are gradually gaining recognition by individuals and business communities alike.
Weathering the Storms
While modern-day ADR strategies reflect age-old practices common in local communities and traditional societies, they are slowly losing their efficacy as they take on the burdens perpetually borne by the conventional judicial system. Lawyers who delight in litigation to demonstrate their dexterity often to the financial, emotional and relational detriment of their contending clients have lately shifted their battlefields to the arena of commercial arbitration. In the end, arbitral tribunals are transformed into private courts completely robed in dilatory conduct, complexity and disproportionate costs, which ADR seeks to purge. Likewise, other ADR mechanisms do not enjoy their fair share of popularity in the prevailing atmosphere of strife. These challenges are compounded by the apparent lack of enthusiasm to embrace and promote tested ADR strategies for conflict management and dispute resolution. The question remains as to what holistic approaches are at our disposal to address these issues and challenges.
Seeking the Ideal
The primary goal of an ideal civil justice system is the effective management of conflicts and just resolution of disputes through a fair but swift process at a reasonable expense. It recognizes the fact that delay and excessive expense invariably negates the value of an otherwise just resolution. Similarly, systemic delay and expense common in litigation render the system inaccessible. Even though there is no absolute measure of a reasonable expense, jurisdictions world over subscribe to the basic principle that the cost of resolving a dispute should be proportional to its magnitude, value, importance and complexity. These are the standards that market mechanisms seek to achieve in order to provide alternatives to civil litigation.
ADR practitioners and proponents of appropriate market mechanisms find reason in the assertion that it is not enough that the resolution of a dispute is fair. In addition to expedition and cost-effectiveness, two other considerations are vital to quality outcomes. In order to achieve quality outcomes, a sound balance must be struck between (a)a rights-based approach; and (b) an interest-based approach. While a rights-based approach (characteristic of adversarial judicial systems) strictly upholds the legal rights and obligations of the parties, as do arbitral proceedings, an interest-based approach characteristic of negotiation and mediation aims at a just resolution of a dispute that meets the interests and needs of all parties.
In contrast, an adversarial system of dispute resolution is not designed with expedition and cost-effectiveness in mind; it is designed to resolve conflict by a competition of adversaries. It is no wonder that delay, case backlogs and disproportionate costs of litigation are frequently cited as some of the main factors that impede effective resolution of disputes. In addition, the complexity of rules and the intricate architecture of the legal framework limits party control and sets the stage for legal counsel, whose adversarial approach to zealously champion the legal rights and downplay the corresponding obligations of their clients erodes the possibility of promoting and protecting the parties’ needs and interests. In the end, extensive advocacy is rewarded regardless of the outcome or value of the case. Accordingly, the judicial system fails on all counts to provide efficient and effective justice. If unchecked, arbitral proceedings are likely to go down the same bumpy lane. Fortunately, the growing number of ardent ADR practitioners are constantly sounding the alarm and drawing attention to the incontestable benefits of ADR.
Our Call for Action
Premier ADR Consultants work hand-in-hand with entrepreneurs and marriage mates with strained business or marital relations on the verge of breakup or separation to resolve their disputes by means of our transformative conflict management and dispute resolution strategies. We help parties salvage, restore and maintain healthy business and family relationships in a safe and peaceful environment with guaranteed privacy and confidentiality.
Our expeditious, cost-effective and party-controlled techniques guarantee consumer satisfaction resulting from the voluntary and jointly generated win-win outcomes. We provide the best alternative to the all-familiar costly, time-consuming, adversarial and often emotive court litigation that only works to weaken and ultimately destroy business, marital and family relations.
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