I have a friend whose mantra in her law practice is, “Why sue when you can settle?” Admittedly, there are some matters that should be taken to court, but not every dispute must be settled in court and it is the duty of the solicitor of the wronged person to advise them appropriately, not only on whether they have a valid claim on a legal right, but also on the alternatives to litigating the claim. Alternative Dispute Resolution (ADR) is the term used to refer to the modes of settling a dispute outside of court. The most common ADR methods are Negotiation, Arbitration, Mediation and Conciliation. However, the negotiations that can, and most times do, take place between your lawyer and the lawyer representing the other party before they resort to the court process are ADR. As a matter of fact, Rule 15 (3)(d) of the Rules of Professional Conduct for Legal Practitioners 2007, provides that, in representing his client, a lawyer shall not fail or neglect to inform his client of the option of alternative dispute resolution mechanisms before resorting to or continuing litigation on behalf of his client. Jurisdictions like Lagos and Abuja have gone as far as requiring that for a civil action to be commenced, one of the documents to be filed must be a statement signed by the lawyer, saying that he has informed his client of the strength and weaknesses of his case, and that the lawyer shall be personally liable to pay costs of the proceedings if it turns out to be frivolous. In Abuja, this statement is called a Pre-Action Counselling Certificate, while in Lagos, it is called a Pre-Action Protocol. The courts are inundated with cases and time-wasters are not entertained. All it takes is for a frivolous case to come before a grumpy judge and the lawyer responsible will find the hands of the court reaching deep into their pockets, and significantly reducing their bank balance. Quite frankly, some of the cases that have been taken to court leave one confused about whose interest is being served – is it the client who is seeking justice or is it the lawyer seeking a name and some money for himself? Either way, where the circumstances permit, the courts would rather that the parties try to hash things out and come to an agreement using one of the ADR methods. As mentioned above, the most common methods are Negotiation, Arbitration, Mediation and Conciliation. In Negotiation, the parties to the dispute try to resolve the matter on their own or through their legal representatives. There are no third parties involved. This is usually the first step. It may be triggered by a letter from the party that has been wronged, informing the wrongdoer of their action and the wronged party’s intention to take the matter to court or explore all legal avenues to restore their legal right. Arbitration is a process where parties involved in a dispute agree to take their disputes to a skilled third party, knowledgeable in the relevant area of law, who listens to their complaints and evidence, and imposes a final decision for both parties to abide by; just like a judge. The process of Arbitration is less formal than litigation but you will still need your lawyer. In Mediation, the parties in a dispute agree on a neutral, impartial third party (a mediator) who will help them arrive at a mutually agreeable decision. The mediator acts as the umpire or referee, and ensures that the process moves along peacefully until there is a resolution. The mediator looks for an appropriate venue, he also acts as an interface or a go-between by transferring information between parties involved in a dispute, and sets the tone for the discourse and ultimate resolution. Most importantly, the mediator suggests ideas and proposals that help both parties arrive at a mutually acceptable resolution. Conciliation is similar to mediation, but it is used more as a preventive measure before a substantial dispute arises. While ADR offers a solution to the discontent around the cost, timeliness and complexity of litigation, and offers disputing parties a confidential space to resolve their disputes as amicably as possible, ADR is not suitable for every dispute. Some disputes must, by their nature, go to court. Also, ADR can get just as expensive as litigation when you have to pay the ‘impartial third party’ in addition to your lawyer. Remember also that there are no secrets in court. Court proceedings are public, and the records of proceedings are also accessible to the public. If you do not want your business in the streets, as they say, ADR will offer some privacy and confidentiality of processes and procedures. Another important consideration is the preservation of the relationship between the parties. For instance, if the parties have been long-standing commercial partners, ADR can allow that the relationship can continue after the dispute has been resolved. Litigation can cause rancour that is passed on for several generations. See you in court? Maybe not.]]>

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