The Effect of ADR on Justice Systems
By Samuel Dare
Alternative Dispute Resolution as a veritable tool of dispute resolution has had a colossal impact on the world’s justice system all through the annals of history. Since time immemorial, several communities and climes have employed indigenous dispute resolution mechanisms bearing semblance with modern ADR processes in resolving their disputes. These indigenous mechanisms were very much effective in handling disputes, and in ultimately achieving justice. It is therefore unsurprising that most of the world’s legal systems are beginning to gear towards ADR engagements, such as mediation and arbitration as in times past. This is particularly so in African countries like Nigeria, where there existed customary dispute resolution systems. Here, kings, traditional rulers, and even family members presided over disputes to resolve them. However, with the advent of colonialism, these systems rapidly eroded and were replaced with the formal court systems of England. (1)
More recently, statistics have evidenced some level of shift from litigation to ADR in some areas. In an ADR survey conducted by Afrobarometer, 54% of the respondents did not understand court processes, 48% could not obtain legal counsel and 44% had not been heard. (2) It is also interesting to note that the Lagos Multi Door Court House resolved 44% of the cases it mediated, compared to 12.5% of cases pursued through litigation. Also, in a recent survey carried out by WIPO, 94% of respondents in technology related disputes negotiated dispute resolution clause forms, and 32% opted for Litigation, 30% chose arbitration and 12% preferred mediation. (3)
The promotion of ADR is strongly linked with the idea of justice in the 21st century. (4) From the World war down to this very age, ADR’s influence has been undeniably profound. The setting up of powerful structural systems of ADR, such as the International Court of Arbitration and The London Court of International Arbitration, have influenced positive political and economic decisions while fostering, to the extent possible, world’s peace and stability.
It is also very true that ADR has relaxed the workload on the traditional court by providing assistance in exuding justice, which was formerly difficult to be achieved due to the strain on the court system and occasional manipulation of legal technicalities by mischievous lawyers. Thus, ADR has ultimately created a seminally balanced justice structure in the society.
The ADR system has also had an emphatic impact on world trade policies and global commercial developments. Notable ADR structural frameworks have been established which are strategically designed to handle intricate matters relating to world trade, investment and business disputes, such as the International Chamber of Commerce. Governmental institutions opt for arbitration, for certain types of disputes like investment and construction disputes where they are involved, due to its confidential nature, speed of resolution and flexibility in resolving delicate disputes which may have potential implications on the globe.
However, there are lingering doubts as to the potency of ADR in enforcing a vibrant justice system. Some believe that ADR has grown to pose bureaucratic barriers to having their grievances and complaints heard in a court of law and that the well-being of society and the development of public policy is threatened. (5).
Nevertheless, while there are still doubts as to eventual state of an eclectic blend of ADR and traditional court system in the society justice structure, it is an indisputable fact that ADR has proven to be pivotal in the administration of justice, almost the world over.
1- Emilia, Onyema, 'How alternative dispute resolution made a comeback in Nigeria's courts'; Africa Research Institute, 23 June 2017
2 - Logan, Carolyn, "Ambitious SDG goal confronts challenging realities; Access to justice is still elusive for many Africans"
3- Sander F.E.A, "Varieties of dispute processing", The pound Conference 1976; Perspectives on justice in the future Minnesota; West Publishing co, 1979, pp 65-67
4- Carlos, Esplugues and Silvia, Baron, " Global perspectives on ADR", October 2013; page 1
5- Douglas, Ashman, "Impact Of Alternative Dispute Resolution in Employment Law (2011). College of Technology Masters Theses. Page 56