Chapter Five

Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.
CHAPTER FIVE
CONTEMPORARY TRENDS IN ADR WORLDWIDE
Alternative Dispute Resolution in these contemporary times is not only accepted
but is actually being advanced in many jurisdictions around the world. Daily, new
approaches are being taken and methods developed to bring justice to the people
through creative exploitation of ADR. A brief study of these systems is
guaranteed to increase our understanding of the far reaching implications of
developing a system of justice that does not rest on the traditional court system of
litigation. Also, a broad knowledge of the scope of ADR and its applicability in
different societal settings and its effectiveness in reaching the less-privileged with
justice will help the development of ADR as a no holds barred approach that has
come to say and which could well be the birth of the future of justice and legal
practice and the end of same as we know it today.
5.1 ONLINE DISPUTE RESOLUTION (ODR)
Apart from the conventional ideas and systems put in place by countries for the
practice and development of ADR in their judicial systems, perhaps the most
significant and the most creative is the birth of a concept known as Online
Dispute Resolution (ODR). Today, the world has been reduced to the size of a
‘room’ where all the people in the world could chat, do business together, go to
Ayokunle B. Oyawale (LAW/2001/099), Obafemi Awolowo University, Ile-Ife, Osun State, NIGERIA.
- 81 -
school, conduct research, minister, etc. That ‘room’ is called the ‘World Wide
Web’ or the ‘Internet’ and it has earned the world the status of a global village
where practically anything can be gotten and anyone contacted by the tap of a
finger. The rise of the internet has brought within reach of people all over the
world possibilities that were completely unthinkable only two decades ago.
It is a basic fact of life that two or three people cannot live together for a year
without some kind of dispute or disagreement coming up between them to a larger
or smaller extent. Daily, contracts are being entered into online, intellectual
properties of all kinds are being published and all sorts of human relations are
being established. Hence, the internet is all the more prone to disputes arising
from its usage and the interactions of hundreds of millions of people. Alternative
Dispute Resolution (ADR) has come about as a panacea to that problem and also
as a viable redirection from the ‘take it to the courts’ mentality of the people.
Online Dispute Resolution (ODR) furthermore, has been created as a means of
settling the special brand of disputes and disagreements that arise from the use of
the internet and also as a tool for effecting the speedy resolution of other disputes
that did not occur from the internet.
By definition, Online Dispute Resolution (ODR) is simply ADR that has one
overarching feature – the fact that it takes place online.1 ODR in its broadest sense
1
Fazzi, Cindy "Conflict Resolution in the Age of the Internet". Dispute Resolution Journal. Aug-Oct
2005.http://findarticles.com/p/articles/mi_qa3923/is_200508/ai_n15704694,
- 82 -
is basically ADR facilitated by incorporating the use of the internet. It started as a
means of resolving commercial and other disputes that arose online, but has now
been made to function as the resolution of all kinds of disputes in cyberspace.
5.1.1 Categories of Online Disputes
The type and factual scenarios of disputes that can arise online are probably as
vast as those that can arise in the tangible world. There are three general
categories under which each dispute can be slotted. These are:
1. E-Commerce disputes
2. Domain Name disputes
3. Intellectual Property disputes2
E-Commerce disputes arise when a business transaction between a business and
consumer or two businesses takes place online, entirely in cyberspace. The
internet has become a global market in which practically anything is available for
sale. Most individuals and families do most of their shopping online.
Amazon.com, eBay.com and Bestbuy.com are some examples of the thousands of
online shops available on the internet. Increasingly, whole transactions can be
conducted and concluded online without ever meeting face to face. Sometimes
2
Colin Boyer, J.D., An Introduction to Online Dispute Resolution, http://www.adrlawinfo.com/online.html
- 83 -
these transactions go awry with either defective products or other breaches in the
terms of contract and thus begin the whirlwind process of obtaining redress. ODR
has made this process easier by providing the opportunity to obtain justice online.
This is one of the greatest working strengths of ODR because since the whole
transaction is conducted without ever meeting face to face, the issue then is who
to sue to the conventional courts and exactly where to find the person.
Domain name disputes present yet another fertile ground for disputes in
cyberspace. A domain name is a personal address used to arrive at a specific
destination on the internet. It is an address, much like the street address of an
individual’s house in the real world. The dispute arises when two parties claim
ownership of the same domain name. It is impossible for two entities to share the
same address; therefore the issue becomes who should rightfully get to use the
address? In the earlier years of the internet this was the major problem that had to
be dealt with and till today, such disputes still arise daily.
Intellectual property disputes arise mainly because of the amount of information
available via the Internet. The most notable example of an intellectual property
dispute would be the sharing of copyrighted music via file sharing. The shear
magnitude of the infringement requires an innovative flexible forum to help
clarify the issues and possible solutions. ODR may provide that forum.3
3
Ibid.
- 84 -
5.1.2 Venues for Online Resolution of Each Category of Disputes
The aforementioned categories of disputes have various avenues online for their
resolution. For E-Commerce disputes webmediate.com and squaretrade.com are
the premier venues. WebMediate and Squaretrade specialize in matters where the
disputants seek a monetary settlement as an end to the dispute. Some scholars
believe that since the disputes arise online each party is familiar with the methods
of communicating online and that the use of such a service becomes that much
more convenient. This is an overstatement because there are countless users of the
internet that only know how to check their mail and perhaps browse a few sites
and conduct small-scale research. With that said, sites like webmediate and
squaretrade do provide a forum to resolve disputes arising from e-commerce that
are convenient and efficient.
When an issue arises, the aggrieved party can utilize either site to initiate the
negotiation to resolve the dispute. Essentially what occurs is the aggrieved party
will begin the process by entering a demand to resolve the issue and will await a
reply from the other party. Should the other party wish to take part in the
negotiations a counter offer can be made through the site. After a number of
rounds of negotiating a computer program will evaluate the final demand/offer of
each participant and if the numbers are within a certain range the computer
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program will usually split the difference and resolve the matter. By taking part in
the negotiations each party agrees to be bound by the determination. Squaretrade
is slightly different in that direct negotiations between the parties are preliminary
to utilization of the round robin bidding process. Also, through squaretrade the
parties have the option to employ the assistance of a live mediator prior to moving
on to the computer program solution.4
5.1.3 Resolution of Other Disputes Online
For normal disputes arising between two or more parties which would have
ordinarily have been negotiated, mediated or arbitrated normally, the internet has
also become a venue and veritable tool in the dispute resolution process. This is
why many view ODR as conventional ADR with an included fourth party – the
internet or computer technology.5 This form of ODR, which deals with disputes
which did not originate online, operates based on the principle that countless
forms of business and endeavour in the world today benefit from computer /
information technology and that ADR could also be more efficiently conducted in
cyberspace often eliminating the need to meet physically to negotiate or mediate
disputes. This could be extremely helpful in cases where the parties simply cannot
be in a room at the same time because of their level of animosity towards each
4
Ibid.
5
Fazzi, Cindy, Op. cit.
- 86 -
other. The ability of the participants to conduct mediation sessions online at their
own pace also removes the need to meet at a central location.6
It is suggested that a mediator can use the Internet to communicate with the
parties, post forms, handouts and exhibits electronically to avoid the cost of paper
reproduction, use e-mail or chat services for caucus discussions at the party’s
convenience and send draft agreements electronically. Since cheaper costs are a
huge consideration in opting for mediation and not arbitration or litigation, it
seems sensible that if the mediator can reduce cost to the parties through the use
of ODR, while being true to the process, he should do so.7
ODR removes, to some extent, the time pressures imposed on parties. When
working through an ODR the parties do not lose valuable down time traveling,
rescheduling meetings and waiting while the mediator caucuses with the opposing
party and thus ODR could help the parties become more methodical and
deliberate in approaching the issues. In the aggregate, the time spent by each
side might well be less than if they participated in a traditional mediation. ODR
provides cost savings for disputes that arise online as well. It has been suggested
that cyber mediation may be the only method feasible for the traditional e-
6
Colin Boyer, J.D., Op. cit
7
Ibid.
- 87 -
commerce claim involving a low dollar amount. It is suggested that hiring an
attorney for the purposes of settling an online dispute is unwarranted.8
On the downside, however, this ability to conduct mediation and other ADR
processes through ODR where the parties do not necessarily have to meet face to
face is its own greatest disadvantage. The inability to observe the parties, cajole
the parties in caucus or use charisma to move parties inhibits the Mediator. With
ODR much of that interaction is lost. As such, in the use of ODR for the
settlement of online disputes in which the parties never met face to face to
conduct business, the parties do not have to see face to face in resolving the
disputes. Besides, in most cases, it is impossible. For example, how practical
would it be to insist that an eBay trader residing in California, USA meet for
dispute resolution with a Nigerian in Lagos or New York over a dispute involving
$150? However, this loss of personal interaction could hurt the process of
employing ODR to resolve disputes that did not occur online somewhat, but it is
still generally believed that skilled mediators would be able to adapt to the system
to make it work for them.9
In conclusion, it seems obvious that the Internet is here to stay and for that reason
alone, ODR is likely to stay as well. It is a safe bet that the use of the Internet as
8
Ibid.
9
Ibid.
- 88 -
an electronic medium for ADR processes will continue to grow, and further that it
will form an essential part of ADR education and practice in the future.10
The uncertainty lies in ODR's effectiveness and applicability. In online
arbitration, for example, there is the pertinent question of whether courts will
enforce awards that issue from online arbitration.11 The world of ADR is till
adapting to the inclusion of ODR and the possibilities and challenges that come
with it. When this is fully done, ODR will become a worthy tool in further
simplifying the process of dispute resolution. The need for lawyers, mediators,
negotiators and arbitrators to become technologically sound cannot be overstated.
Those who are bound to reap the benefits of ODR are those who will distinguish
themselves in the creative use of the Internet and other computer and information
technology.
5.2 CORPORATE / COMMERCIAL ADR
Increasingly the business world is learning that the conventional means of dispute
resolution through litigation is not serving their purposes as best as possible. The
problems of delay most especially keep businesses and multi-nationals in courts
for far too long, thus causing the option of ADR to be most welcome.
10
Canadian Arbitration and Mediation Journal, Vol. 12, No.2 (Winter 2003), p. 5
11
Fazzi, Cindy, Op. cit.
- 89 -
In the United States of America, corporate executives were of the opinion that the
high cost of civil justice is a drag on U.S. business and the economy. Fully 83%
say their decisions are increasingly affected by the fear of lawsuits and a 62%
majority say the legal system significantly hampers healthy competition....An
overwhelming 97% favour much more use of alternative methods to resolve
disputes! In most jurisdictions around the world, there is currently up to a two
year wait for a trial date, and it may take a full five to eight years to see a case
through to the Court of Appeal.12
In the 1980s, the demand for ADR in the commercial sector of the United States
of America began to experience speedy growth as the effort to finds more
efficient and effective alternatives to litigation became more and more intense. To
date, the use of private arbitration, mediation, negotiation and other forms of
ADR in the corporate world has increased drastically. This was further aided by
the explosion in the number of private firms offering ADR services thus removing
ADR from even the court-connected dispute resolution houses to the fully
commercial setting.13
12
Peter Grove, Fast Track Alternative to Litigation for the Business Community, The British Columbia
International Commercial Arbitration Centre, www.bcicac.org
13
S. Brown, C. Cervenak and D. Fairman, ALTERNATIVE DISPUTE RESOLUTION PRACTITIONERS’
GUIDE; Center for Democracy and Governance, March, 1998, p. 5
- 90 -
In day-to-day business affairs, disputes are often inevitable.
Contracting parties might disagree as to their individual rights
and obligations no matter how carefully a contract is written.
This can lead to delayed shipments, complaints about the quality
of merchandise, claims of nonperformance, and similar
misunderstandings. The resolution of such disputes, however,
need not be costly and acrimonious. ADR saves the time and
money of corporate organizations and helps preserve those
relationships that are crucial to the future and profits of the
company. Business is built on clientele and where litigation is
fully pursued it often results in estrangement in business
relationships. ADR counters that effectively.14
Corporate executives are discovering daily that their institutional
systems of dispute resolution border primarily on litigation and
that this is no longer efficient in delivering the justice they
require from time to time. As a result of this, countless
companies and multi-nationals are changing the appellation of
their dispute settlement departments from mere ‘Litigation
Departments’ to ‘Dispute Resolution Departments’. This shift
14
American Arbitration Association, A GUIDE TO MEDIATION AND ARBITRATION FOR
BUSINESS PEOPLE, (Amended and Effective September 1, 2007), p. 2
- 91 -
embraces much more the numerous alternative means of
dispute settlement and these are faster and more cost-effective
than depending on the courts. Litigation is increasingly becoming
a matter of last resort for the business world and indeed, it
makes the business world run smoother when contracts can be
entered into with the knowledge that any disputes arising thereof
will be swiftly resolved and it is not uncommon in large
international contracts where there are cultural and language
barriers to have the parties name a ‘deal facilitator’ in the
contract. The deal facilitator is appointed at the time the contract
is negotiated and continues to be available throughout the
execution of the contract to help resolve all disputes arising from
the performance of the agreement.15
Initially it was the Insurance industry that favoured the use of
mediation to settle disputes arising from claims and counter
claims. Thus ADR was introduced into the mainstream of
commercial endeavour.16 This favourable experience in the insurance
industry was widely publicized and it wasn’t long before experiments with “court-
connected” mediation led to the mediation process being accepted as a feature of
15
Canadian Arbitration and Mediation Journal, Vol. 12, No.2 (Winter 2003), p. 5
16
Richard J. Weiler, Commercial Mediation – We Ain’t Seen Nothing Yet, Canadian Arbitration and
Mediation Journal, Vol. 11, No. 1 (Winter 2002), p. 9
- 92 -
modern courts. Other structural changes fueled the growth of commercial
mediation such as Codes of Professional Conduct requiring lawyers to consider
mediation when advising clients, ADR “pledge” programs such as that instituted
by CPR Institute for Dispute Resolution in New York and the Canadian
Foundation for Dispute Resolution and the growth of multi-step dispute resolution
clauses (requiring mediation and then arbitration) in domestic and international
commercial agreements and the United Nations Commission on International
Trade Law (UNCITRAL) adoption of the Model International Conciliation Law
in June 2002.17
Two sectors that employ ADR in resolving disputes arising in the course of their
commercial endeavours are the Energy and Construction industries. The complex
issues and grievances that arise from these industries often require professionals
who are not only trained in negotiation, mediation, conciliation and arbitration,
but are also vast in the mentioned fields of energy and construction. One way this
inclusion of ADR in these industries is by the appointment of a Dispute
Resolution Board (DRB).18 This board is usually engaged when the contract
documents are being drawn to give their expert opinions as touching terms,
clauses and items that are ambiguous or carry potential for causing disputes.
When disputes do arise in the course of the execution of the agreement, it is the
17
Ibid.
18
Edward Gluklick, Why Every Construction Project Needs A DRB, Canadian Arbitration and Mediation
Journal, Vol. 12, No.2 (Winter 2003), p. 11
- 93 -
DRB that functions as the dispute resolution medium. Contracts in the
construction and energy industries are prone to uncertainties like delays in arrival
of equipment, bad weather or limited labour and each of these could spark
contentions as to which parties are at fault and because countless parties are
involved in such contracts, the chain reaction of such contentions could lead to the
total breakdown of the whole contract. The courts have only succeeded in causing
further delays in the executing of such contracts because where court injunctions
are sought, they only bring the work to a halt and then take years to resolve. This
is why ADR has become the favoured choice in the resolution of such contracts.
5.2.1 Ex Ante and Ex Post ADR Agreements
It was mentioned earlier that ADR clauses are increasingly being
introduced into contracts to determine the approach to be taken
in the event of a dispute or breakdown in the contractual
relations between the parties. This is a significant trend in the
practice of ADR worldwide because it is a systematic phasing out
of the original idea that only the courts dispense justice. Ex Ante
ADR agreements are simply ADR arrangements made before the
disputes in question arise.19
19
Steven Shavell, Alternative Dispute Resolution: An Economic Analysis, The Journal of Legal Studies,
Vol. 24, No. 1 (January, 1995), p.1
- 94 -
Ex ante ADR agreements arise where there is contact between
the parties even before the events that could lead to disputes
arise. It most often occurs where parties intend to contract and
are considering the problem of inadequate performance or
breach and considering the mutual advantages of ADR, they
decide to make express provisions in the contract for the
methods of resolving any disputes in the event that they occur.
Such agreements often work to induce a change in behaviour of
the parties in a manner that benefits both parties. With the
knowledge that a certain approach would be taken to resolve any
disputes, the parties could consider the costs involved and
though cheaper than the courts, decide to fulfill their contractual
obligations in a bid not to necessitate any such action.20
Such ex ante ADR agreements are usually enforceable by the
law, especially where it is shown that both parties were
adequately informed of the working of such an agreement and
the implications of pursuing ADR instead of traditional litigation
and also where the ADR agreement is not deemed to adversely
affect any third parties.

20
Ibid.
- 95 -
On the other hand, ex post ADR agreements are those made
after the disputes have arisen. The only difference between ex
ante and ex post ADR agreements and their advantages is that
while the former could influence the parties’ behaviour and
probably avert the occurrence of disputes, the latter occurs after
the disputes have arisen and therefore cannot influence the
parties’ behaviour in such a way and is more palliative than
preventive.21
In practice, sometimes parties are not always eager to make ex
ante ADR agreements because they deem it not worth the
trouble since the odds of a dispute arising are low and also
because, in the event of a dispute, they can easily make ex post
ADR agreements.
It must be noted that ex post ADR agreements are not the
settlement agreements reached at the end of ADR processes
themselves, but the mere decision to resort to ADR and the
specification of such process and how they are to be conducted.
21
Ibid. p. 9
- 96 -
5.3 ADR IN LABOUR MANAGEMENT
Another area of practice in which ADR has been of immense
influence is in the field of labour and management. Although not
altogether new in this realm, ADR has recently received and
continues to enjoy increasing acceptance as a veritable tool in
the resolution of workplace disputes. To quote David G.
Carnevale of the University of Oklahoma, USA: ‘Conflict in
organizations is inevitable’.22 Today countless Human Resource
(HR) departments in organizations and businesses employ ADR
methods in dealing with the many grievances that arise daily,
from mere complaints through collective bargaining to strike
actions and lay-offs.
Unions are particularly interested in ADR because, in theory at
least, they cause for a higher rate in the settlement of
grievances without necessarily resorting to arbitration. The costs
involved in this process are cheaper for the companies than
ordinary litigation and such decisions are reached in shorter time
than the companies would have had complaints dealt with. ADR
22
D. G. Carnevale, Root Dynamics of Alternative Dispute Resolution: An Illustrative Case in the U. S.
Postal Service, Public Administration Review, Vol. 53, No. 5 (Sept – Oct 1993), p. 455
- 97 -
in the workplace enhances the collaboration between the
workers and the management. This also strengthens the
relationships between the two.23
Here, the aim of ADR is to design systems that serve as worthy
alternatives in arriving at faster, cheaper and more
representative decisions. The list of possible outcomes of crises
where ADR is not employed is endless. Most often, there is first a
breakdown in communication and the loss of trust, while the
leaders of both management and staff look for ways to ‘win the
battle.’ ADR is not like that and the focus is not on who wins but
mutual understanding birthing an accepted resolution.
5.4 STATE-BASED ADR PROGRAMMES
The phenomenon known as ADR is no longer novel in the world
of law and justice. Countries all over the world have designed
and continue to implement newer ideas and strategies to ensure
that alternative means to the resolution of disputes other than
litigation are discovered and explored. Although ADR is well
known and practiced to larger or lesser extents in these

23
Ibid.
- 98 -
countries, the drive in contemporary times is to have the
administration of ADR more organized and structured the
achieve more results in the delivery of justice to government, the
corporate world and individual members of their communities.
Some of these endeavours are chronicled below.
5.4.1 ADR in South Africa
South Africa obviously has a past of political disputes and
turbulence and with the deep sigh of relief in the early 1990s
with the abolishing of apartheid, the country has been known as
one of the most proactive in experimentation with ADR.24
The Independent Mediation Services of South Africa (IMSSA) was
established as an NGO in 1984 and was set up to work in four
main project areas:
1. the Industrial Dispute Resolution Service (IDRS) handles
labour issues;
24
Carolyn Logan, Research Consultant to Conflict Management Group’s USAID/ADR Project, 1997,
ALTERNATIVE DISPUTE RESOLUTION PRACTITIONERS’ GUIDE, Case Studies, p. 3
- 99 -
2. the Community Conflict Resolution Service (CCRS) handles ad
hoc negotiations of community disputes like taxi wars,
disputes in schools, inter-tribal disputes, etc;
3. an elections and balloting project, and
4. a training department that trains individuals, organizations
and even the government in conflict resolution techniques.25
Much of the successes of the IMSSA in its early years was largely
due to the disrepute of the country’s legal system as most of the
public viewed the courts as illegitimate and unjust. It must be
noted, however, that the IMSSA was established as an NGO and
was, at the time of apartheid, a parallel to the judiciary. Its
activities and advances in ensuring justice to the corporate
community as well as the unfavoured sections of the citizenry
was highly applauded by all and after the elections of 1994
served as catalyst to government later identifying that ADR was
to be embraced and its incorporation into the government’s
plan.26
25
Ibid.
26
Ibid. p. 5
- 100 -
Following this major landmark, most of the government officials
appointed came from ADR backgrounds. The Minster of Justice,
Dulla Omar, who had worked for an NGO working in ADR played
a huge role in the wider provision of ADR services in the country
such as developing the community court system within the
Department of Justice. The National Land Reform Mediation Panel
was also established for the resolution of land disputes and all
these led the government to create the Commission for
Conciliation, Mediation and Arbitration (CCMA) – a statutory body
designed to provide ADR services for the resolution of labour
disputes based on the model developed by the IMSSA.
Since it started work in 1996, the CCMA has had its caseload
grow incredibly. With 834 cases in its first month of operation to
the total of about 34,000 cases brought before it in its first nine
(9) months, the body saw first hand the need for more organized
dispute resolution processes initiated by the government.27 When
the NGOs were established they were ready alternatives to the
failing system of justice in the country, but with the new
government and its initiatives at peace and good governance,
the people responded positively to the work of the CCMA as a

27
Ibid. p. 13
- 101 -
reflection of their trust and hope in the new government and as a
signpost to just how relevant ADR would grow to be in the
country.
The greatest factors that have led to the huge success of these
initiatives in South Africa and which should continue to be
harnessed for increased growth are the need for quality
panelists, financial sustainability, proper evaluation and
monitoring and adequate community orientation amongst others.
5.4.2 ADR in Ukraine
Although it wasn’t until June 2004 that organized ADR came to
Ukraine in the form of the Courts of Arbitration Ad of
Ukraine28. This Act was established to grant individuals and
companies a greater avenue for the protection of their rights.
They were enabled to transfer their conventional disputes
(whether commercial or civil) to courts of arbitration that are not
28
No. 1701 - IV
- 102 -
run by the state.29 These arbitration courts could be permanent
or ad hoc and have been found to be more favoured by the
people as opposed to the state courts.
The basic advantages discovered in the operation of such courts
of arbitration over the conventional state courts in Ukraine were:
first, the freedom of choice. In the state courts the rules of
procedure generally determine where a claim must be filed
decided, generally parties can choose any available court of
arbitration to hear their dispute. Second, these courts of
arbitration were established not for the settlement of
international commercial disputes alone, but also Ukrainian
disputes that lack an international element. Third, these
arbitration courts are much cheaper than pursuing suits in state
courts because court fees, legal fees and the costs of endless
appeals are not involved in the costs of the arbitration. Also,
these courts ensured that the parties were heard fairly because
they were established by various civic organizations with diverse
vested interests, and lastly, the Ukrainian courts of arbitration
made for prompt trials unlike the state courts that seemed to
take pride in the extension and endless dragging of court cases

29
Articles 1 and 5
- 103 -
and more so, as the decisions of the courts of arbitration are final
and binding, appeals cannot be made unlike with the decisions of
the common state courts.30
Overall, the introduction of this Act came to Ukraine with great
potential and has been widely explored. Perhaps the greatest
strength of this initiative was the support it received from the
Ukrainian government in giving both the ad hoc and permanent
arbitration courts the free rein to arbitrate cases and resolve
disputes, some of which were high profile cases that would
originally have been of national interest without interference
from them.31 Commercial mediation also received a boost
because it was companies and other commercial entities that
first made the most use of the courts of arbitration. As
commercial arbitration had already been highly successful in
other countries in the world, Ukraine began to gain increasing
exposure to such dispute resolution processes within the
business community. These mediations were obviously cheaper,
less unpredictable and with more practical or easily implemented
decisions or rulings than the state courts and offered a means of
30
I. Paliashvili and V. Kovalenko, Alternative Dispute Resolution – New Prospects for Alternative Dispute
Resolution In Ukraine, Ukrainian Legal Group, L.L.C, www.rulg.com, p. 3
31
Ibid.
- 104 -
preserving the reputation of the disputants without the heavy
publicity associated with such cases in the conventional courts.
5.5 THE REGULATION OF ADR
It has been identified that in most of the countries where ADR is
being practiced worldwide, only a few have rules and regulations
administering the use or operation of ADR. In most places, ADR
operators and practitioners in a bid to advance their trade, lack
procedure or standard and take on much more cases than they
have the structure and capacity to handle. This situation has led
some jurisdictions to institute regulations governing the practice
of ADR and these have been proven to engender formality, form
and competence in the field and provides for sanctions for
incompetent or erring practitioners of ADR. As mentioned earlier,
where there is proliferation of any concept, abuse is inevitable,
thus these regulations make it possible to raise the standard and
professionalism of the practice of ADR and this should be
encouraged and replicated in all other countries where ADR is
being practiced and championed as a solution to the problems
and shortcomings of their legal systems. After all, why institute
- 105 -
ADR as an alternative to the courts when it will itself soon
enough fall prey to the many problems that plague the courts
more if practitioners are encouraged to charge whatever fees
they like, take on case loads they cant handle that will eventually
lead to delay, etc.
In Scotland, it was discovered after long research that there was
hardly any form of regulation for ADR and that it was highly
necessary to provide some regulations for ADR practice. This
regulation started in the form of control of ADR service-providing
organizations themselves by threats to withdraw financing for
these publicly-funded ADR projects.32
The question of how far ADR should be regulated in the United
Kingdom is a subject of endless debate. Some suggest that there
should be an ‘umbrella’ organization established for the
coordination of ADR education and training, for regulation and
accountability for those entering ADR practice and for monitoring
the quality of service being provided.33
32
B. Clark and R. Mays, Regulating ADR – The Scottish Experience, [1996] 5 Web JCLI, p. 2
33
Ibid.
- 106 -
Canada only recently had their National Arbitration Rules and
new Mediation Rules of the ADR Institute of Ontario launched 34 to
be used in conjunction for the regulation of Canadian business
disputes.35 This came in response to the countless calls for
regulation of arbitration and mediation practice in Canada.
According to Randy Pepper36:
“It is long overdue to have Canadian rules and

administrative procedures for arbitration and
mediation…designed to provide effective administration
of disputes….” 37
These rules actually came to also provide an answer for a
problem that was uniquely Canadian. Canada has regions that
before this time had their own arbitration and mediation laws
that regulated these practices in the respective regions. It
became a problem over time to determine what rules to abide by
when the two disputing parties came from two different regions.
Thus the National Arbitration Rules and the Mediation Rules
made for uniformity in the administration of ADR all over the
country.38
34
In October 2002
35
Canadian Arbitration and Mediation Journal, Vol. 11, No. 1 (Winter 2002), p. 3
36
Partner at Osler, Hoskin & Harcourt LLP, Canada.
37
Canadian Arbitration and Mediation Journal, Op. cit.
38
Ibid.
- 107 -
The form regulation takes in Scotland on the other hand is that
mediators must be accredited by any of three ADR organizations:
The Law Society of Scotland’s mediation service (ACCORD) which
started promoting ADR service in Scotland in 1994, the Centre
for Dispute Resolution (CEDR) which is the flagship commercial
ADR organization in the UK established in 1990 and the
Mediation Bureau, a company established in 1994 by a retired
sheriff. These organizations all accredit ADR practitioners after
appropriate training in ADR related services.39 Although these
organizations do not strictly supervise the practices of those
accredited members or organizations, but however, issue codes
of standard practice to be followed.
It must be noted however, that there are those who argue that
tight regulation of ADR is unnecessary because it could induce
undue professionalizing of mediation practice and thus lay
people may not be able to attain to such heights of
professionalism. Others claim that mediation is based on trust
and that since the process is voluntary and without prejudice,
39
B. Clark and R. Mays, Op. cit, p. 2
- 108 -
regulation of it would have no effect. Lastly, lawyers claimed that
regulation of this sort would only serve to inhibit the growth
expected in the development of alternative dispute resolution
mechanisms.40
One of the greatest difficulties encountered in the regulation of
ADR is that mediation and arbitration by nature cut across
diverse frontiers of profession and practice. As such to seek to
jointly regulate ADR would mean that some of the rules would
not be well-suited to cater for the peculiar demands of these
professions or sectors. For example, international commercial
arbitration, mediation for construction or arbitration among
banks are based on the unique demands and to attempt to make
them uniform would undermine the effectiveness of each.41
Another problem is how to regulate the regulator especially
where independent regulatory bodies are concerned and this has
caused individuals to suggest that regulation should be left to
the industry or emerging profession to create model standards
for their own practice.
40
Ibid. p. 3
41
Ibid. p. 5
- 109 -
It can be concluded, however, that some form of regulation is
required if ADR is to be free from unscrupulous elements who
only seek to enrich themselves through the pain and distress of
others. Those countries that have begun formulating rules,
regulations and guidelines for the administration and regulation
of ADR are on the right track.
In conclusion, it is no longer news that various trends emerge
daily in ADR. These trends serve as catalysts for the
development of ADR because other organizations and indeed,
countries duplicate these ideas and programmes and it is found
that ADR becomes more tailored to meet the needs of disputants
and guarantees the swifter and more customized solutions to
their disputes of varying kinds.
- 110 -

Chapter Five

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Chapter Five

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Alternative Dispute Resolution (ADR) As Panacea to the Shortcomings of the Nigerian Legal System.

CONTEMPORARY TRENDS IN ADR WORLDWIDE

Alternative Dispute Resolution in these contemporary times is not only accepted

through creative exploitation of ADR. A brief study of these systems is

guaranteed to increase our understanding of the far reaching implications of

practice and the end of same as we know it today.

5.1 ONLINE DISPUTE RESOLUTION (ODR)

without some kind of dispute or disagreement coming up between them to a larger

Online Dispute Resolution (ODR) furthermore, has been created as a means of

that did not occur from the internet.

is basically ADR facilitated by incorporating the use of the internet. It started as a

been made to function as the resolution of all kinds of disputes in cyberspace.

5.1.1 Categories of Online Disputes

categories under which each dispute can be slotted. These are:

2. Domain Name disputes

3. Intellectual Property disputes2

E-Commerce disputes arise when a business transaction between a business and

consumer or two businesses takes place online, entirely in cyberspace. The

sale. Most individuals and families do most of their shopping online.

Amazon.com, eBay.com and Bestbuy.com are some examples of the thousands of

online shops available on the internet. Increasingly, whole transactions can be

cyberspace. A domain name is a personal address used to arrive at a specific

destination on the internet. It is an address, much like the street address of an

Intellectual property disputes arise mainly because of the amount of information

magnitude of the infringement requires an innovative flexible forum to help

5.1.2 Venues for Online Resolution of Each Category of Disputes

resolution. For E-Commerce disputes webmediate.com and squaretrade.com are

disputants seek a monetary settlement as an end to the dispute. Some scholars

squaretrade do provide a forum to resolve disputes arising from e-commerce that

are convenient and efficient.

rounds of negotiating a computer program will evaluate the final demand/offer of

the negotiations each party agrees to be bound by the determination. Squaretrade

on to the computer program solution.4

5.1.3 Resolution of Other Disputes Online

cyberspace often eliminating the need to meet physically to negotiate or mediate

own pace also removes the need to meet at a central location.6

huge consideration in opting for mediation and not arbitration or litigation, it

of ODR, while being true to the process, he should do so.7

commerce claim involving a low dollar amount. It is suggested that hiring an

attorney for the purposes of settling an online dispute is unwarranted.8

disputes. Besides, in most cases, it is impossible. For example, how practical

to make it work for them.9

The uncertainty lies in ODR's effectiveness and applicability. In online

negotiators and arbitrators to become technologically sound cannot be overstated.

5.2 CORPORATE / COMMERCIAL ADR

problems of delay most especially keep businesses and multi-nationals in courts

majority say the legal system significantly hampers healthy competition....An

overwhelming 97% favour much more use of alternative methods to resolve

disputes! In most jurisdictions around the world, there is currently up to a two

through to the Court of Appeal.12

of America began to experience speedy growth as the effort to finds more

In day-to-day business affairs, disputes are often inevitable.

Contracting parties might disagree as to their individual rights

and obligations no matter how carefully a contract is written.

This can lead to delayed shipments, complaints about the quality

of merchandise, claims of nonperformance, and similar

misunderstandings. The resolution of such disputes, however,

money of corporate organizations and helps preserve those

relationships that are crucial to the future and profits of the

company. Business is built on clientele and where litigation is

fully pursued it often results in estrangement in business

relationships. ADR counters that effectively.14

Corporate executives are discovering daily that their institutional