ADR relate to the alternative methods of dispute resolution that is aside litigation. In other words, should a potential litigant not be willing to go to court, which other method can be used to resolve the dispute. The following are the methods available.

  • Negotiation: Parties do not need a third party to settle. They do the offer and acceptance of terms amongst themselves. Limit: Stronger bargaining power

  • Mediation: Parties settle amongst themselves with the help of a neutral third party known as a mediator who only facilitates the process of settlement. He helps them maintain communication and help them shift to interest-base to ensure an amicable resolution. It is a win-win system. ENFORCEMENT: After the parties agree to the terms, they sign and date the outcome as witnessed by their lawyers. Thereafter, the parties file it in court and agree that the terms of settlement be made a consent judgement by the court. Mediation is governed by the rules of the mediation center.

  • Conciliation: Here, conciliation is governed by ACA. The conciliator comes up with an opinion which is reduced to terms of settlement for parties to sign which is at the discretion of the parties. The conciliator tries to enforce his opinion on the parties.

  • Arbitration: an arbitrator who sits as an umpire to decide the case is appointed. He hands down an award which is like a judgement of the court enforceable at the High Court. The parties may set aside the judgment in the HC on the grounds of Sections 29 and 30 of ACA, otherwise the award is binding. Bindingness of the award.

  • Hybrid process e,g Neg-Med, Med-Arb often used in cases of breach of contract.

  • Early Neutral Evaluation: Used in International commercial transactions.ample a dispute between Chevron and Shell, a petrochemical Engineer comes as an early neutral evaluator to evaluate the strength and weaknesses of the case. The parties then decide whether to go on with litigation or resolve amicably.

Advantages of ADR over litigation

  1. It is cost-effective: In short term, ADR can be more expensive than litigation but in long term it is cheaper than litigation. In ADR, all the expenses are borne by the parties while in litigation; some of the expenses are not borne by the parties.
  2. Preservation of relationship between the parties: Most ADR has a win-win situation on both sides, although arbitration is now similar to litigation as it is governed by stringent rules where there is a winner and loser. Strictly in litigation, it is a win-lose situation. Preserves the pre-dispute relationship between the parties.
  3. Privacy of the parties: ADR helps preserve the privacy of the parties. In litigation, the process must be held in public except under certain conditions thus in private. Again most parties to litigation do not return as friends even in matrimonial proceedings. And in commercial area of law, ADR is most relevant as there might still be need to continue business relationship.
  4. It is less formal: The court room where litigation is carried out is usually tense. For the lawyers, it is difficult, there are a lot of rules and procedures which must be followed and also for the layman, it is extremely difficult. In ADR session, it is more of business meeting where coffee can even be served. Hence the layman is likely to prefer such environment.
  5. The parties can determine the umpires. They determine the mediator or arbitrator or conciliator.
  6. Involvement of people: ADR processes are parties driven. Parties can determine the time, venue, language and pace in the ADR process. In litigation, parties are not involved. It is controlled by the court.
  7. Saves time.
  8. Encourages compromise
  9. Decongest the cases before the courtrooms
  10. Encourages the use of experts.

Disadvantages of ADR

  1. ADR hinders the development of case law..
  2. Lack of binding force: ADR processes usually lack binding force except arbitration as the ACA provides for its bindingness. However for the others that have no binding force, the parties can and usually make an effort to reduce the decision reached in the ADR process into a binding agreement. In other words, by their own nature, most are not binding but there are means to making them binding.
  3. Parties can easily re-open the matter EXCEPT in Arbitration.
  4. Its application is limited in some cases.
  5. The other methods have no legal framework. Only arbitration and conciliation have binding force under ACA
  6. Decisions are usually not appealable.

Limitation of ADR

  • Where the case is purely a criminal matter..

  • Election petitions, being matters of public policy cannot be resolved through ADR.

  • In matrimonial causes, because parties have to come to court to give evidence in the case of dissolution of marriage and judicial separation.

  • Certain matters that require evidence to be proved. For instance, a declaratory relief being sought must be proved by evidence.

  • Injunction restraining an act.

  • Enforceability of judgement

  • Enforcement of FHR.

  • Interpretation of statutes and the Constitution.