Expanding frontiers of ADR: National Industrial Court of Nigeria’s approach (3)
Continued from last week
Outside the administrative issues, Order 4 of the Rules makes provision for the mediation and conciliation procedures, while order 5 provides for the execution of terms of settlement.
The foresight, ingenuity and the bold steps taken by the Hon. President of the Court in setting up the ADR Centre with its accompanying rules is highly commendable. This is another first in his already crowded profile and accomplishments since he became the President of the court. This leadership role and pioneering effort in steering the ship of the Court thus far is worthy of emulation.
The gradual institutional acceptance and recognition of ADR in our dispute resolution effort is a welcome development in view of the benefits to the society at large. Labour, employment and industrial relation crisis and disputes disagreements owing to their sensitive nature need the fastest means of resolution for industrial harmony. It is in the light of the foregoing that we see and appreciate the bold steps taken by the National Industrial Court of Nigeria in establishing the ADR Centre.
Observations and Comments:
Like every endeavour embarked by human being with all its imperfections, the steps taken by the Court in the establishment of the Centre is not without its short comings. In the first place, the provisions of section 254 C(3) of the 1999 Constitution of the Federal Republic of Nigeria, (as amended by the Third Alternation Act , 2010) empowers the Court to set up and establish an Alternative Dispute Resolution Centre. In our opinion, the term Alternative Dispute Resolution (ADR in short) is generally used to describe the methods and procedures used to resolve disputes either as alternative to the traditional dispute resolution mechanism of the Courts or in some cases as supplementary to such mechanism. ADR covers the wide range of alternatives to litigation that involve third party intervention to assist in the resolution of the dispute. The point is that, there are many forms of ADR but unfortunately the Court, in its own wisdom, appears to recognize only three types or methods of ADR, to wit: Mediation, Conciliation, and Neutral.
Arbitration is a form of ADR as it is an alternative to litigation and it is one of the foremost means recognized and practiced in this jurisdiction. The question whether Arbitration is an ADR process is still the subject of scholarly discussions, but in our context we prefer to classify it as ADR, in so far as it operates outside the traditional court system. It may have its short comings just like any other means including its closeness to litigation but why it is totally left out from a means of dispute resolution from the ADR Centre is what we cannot readily understand. It is our submission that labour, employment and industrial relation matters and causes can obviously be best handled by means of Arbitration.
While we commend the pioneering effort of the Court in setting up the ADR Centre, we invite the Hon. President to reconsider his stand and make provisions for Arbitration in his first amendment of the Instrument in Article 9 (7)(a) which states that: “Notwithstanding anything to the contrary contained in this Instrument or the ADR Centre Rules, 2015 (as may be amended) the President of the Court shall have the power to amend this Instrument from time to time as the need arises”.
The fact that only three ADR methods are recognized by the Court appears to limit the options that may be available to parties to explore. The need to utilize this power to incorporate other means of effective disputes resolution cannot be overemphasized.
The key features or cornerstones of mediation can be identified as neutrality, confidentiality, flexibility, voluntariness, party control and facilitation. The Instrument setting up the ADR Centre empowers the President to appoint the Mediator thereby denying the parties the opportunity to appoint a mediator of their choice. The ADR Centre Rules also appear to be strict and thereby denying the parties opportunities to have control over the process. In mediation for example, the role of the third party is limited while the parties themselves are the decision makers and solution finders.
One of the beauties of ADR mechanism lies in its flexible nature. We sincerely hope that we will not become masters of the Rules at the expense of the underlying intention of the techniques themselves.
There appears to be no time frame set for the disposal of causes or resolution of matters referred to the ADR Centre. In as much as the ADR methods encourage flexibility in approach, it is suggested that a time frame ought to be established for the resolution of any dispute at the Centre or by the Court. The abolition of interlocutory applications though appreciated may not solve this problem. The officials and stakeholders need to be properly indoctrinated.
Staff and officials of the Court appear to be playing very active role in the entire processes. This is not limited to administrative duties but actual dispute resolution roles. The fear is the usual bureaucratic nature associated with the public service with all it attendant consequences. We pray that this will not defeat the entire intention of setting up the Centre in the first place instance.
Six ADR Centres have been established or are to be established under Article 1(3)(a) of the Instrument to cover the six geo-political zones of the country. The question is why don’t we have ADR Centres in all the divisions where the Court has thus far been established? We know that this will require logistics, finances, manpower, etc. But what is worth doing at all is worth doing well. It is hoped that more Centres will be established in future to meet the challenges of the time.
Additionally, the ADR Centre for the South-South Zone is to be located at Warri and South –West Zone in Ibadan. Why Port Harcourt and Lagos were not considered as proper locations and Centres in view of their cosmopolitan natures is what we cannot readily provide answers.
Ekpo is of Rocheba Solicitors, Mediation Advocates.