* Paper presented at the 2-day Consultative Meeting
of ECOWAS Court of Justice
INTRODUCTION
The premise of this paper is that previous speakers have dwelt
extensively on the legal architecture, jurisdiction, challenges;
etc. of the Court before now and therefore, this audience should be
spared repetition as much as it is practicable.
This paper hopes to examine the types of processes that
supranational bodies, with particular reference to ECOWAS Court,
currently employ, and should employ in the future, to determine the
compatibility of a particular dispute resolution process with the
right of access to justice, in other words, what are the
appropriate dispute resolution processes (ADR) for such bodies. The
concept of access to justice within the context of this paper is
used advisedly with knowledge of the history of the resistance to
ADR as a viable alternative to public courts.
In 1975, the European Court of Human Rights (ECtHR) held that
‘one can scarcely conceive of the rule of law without there
being a possibility of having access to the courts’. Yet
the presumption that courts are the principal forum for dispute
resolution continues to be eroded through the proliferation of
alternative forms of dispute resolution (ADR), both agreement based
(such as mediation and conciliation) and adjudicative (such as
arbitration).
ADR can be integrated within national court systems and enjoy
support at the international level. Also, the European Union has
also adopted a series of resolutions on mediation, and its
Fundamental Rights Agency is exploring the role of non-judicial
processes under the theme of ‘justice in austerity’
ECOWAS Community Court of
Justice
The Community Court of Justice was created pursuant to the
provisions of Articles 6 and 15 of the Revised Treaty of the
Economic Community of West African States (ECOWAS).
Its organizational framework, functioning mechanism, powers, and
procedure applicable before it are set out in Protocol A/P1/7/91 of
6 July 1991, Supplementary Protocol A/SP.1/01/05 of 19 January
2005, Supplementary Protocol A/SP.2/06/06 of 14 June 2006,
Regulation of 3 June 2002, and Supplementary Regulation
C/REG.2/06/06 of 13 June 2006.
Particularly, Supplementary Protocol A/SP.1/01/05, which amended
the Preamble and Articles 1, 2, 9, and 30 of the 1991 Protocol.
Article 9 now contains the following:
- The Court has competence to adjudicate on any dispute
relating to the following: - The interpretation and application of the Treaty,
Conventions and Protocols of the Community; - The interpretation and application of the regulations,
directives, decisions, and other subsidiary legal instruments
adopted by ECOWAS; - The legality of regulations, directives, decisions, and
other legal instruments adopted by ECOWAS; - The failure by Member States to honor their obligations
under the Treaty, Conventions and Protocols, regulations,
directives or decisions of ECOWAS; - The provisions of the Treaty, Conventions and Protocols,
regulations, directives or decisions of ECOWAS Member
States; - The Community and its officials; and
- The action for damages against a Community institution or
an official of the Community for any action or omission in the
exercise of official functions. - The Court shall have power to determine any non-contractual
liability of the Community and may order the Community to pay
damages or make reparation for official acts or omissions of any
Community institution or Community officials in the performance of
official duties or functions. - Any action by or against a Community Institution or any
Member of the Community shall be statute barred after three (3)
years from the date when the right of action arose. - The Court has jurisdiction to determine case of violation
of human rights that occur in any Member State. - Pending the establishment of the Arbitration
Tribunal provided for under Article 16 of the Treaty, the Court
shall have the power to act as arbitrator for the purpose of
Article 16 of the Treaty. - The Court shall have jurisdiction over any matter provided
for in an agreement where the parties provide that the court shall
settle disputes arising from the agreement. - The court shall have the powers conferred upon it by the
provisions of this Protocol as well as any other powers that may be
conferred by subsequent Protocols and decisions of the
Community. - The Authority of Heads of State and Government shall have
the power to grant the Court the power to adjudicate on any
specific dispute that it may refer to the Court other than those
specified in this Article.
The Court of Justice (CCJ) of ECOWAS (the Court), by virtue of
Article 9(5) of the Supplementary Protocol (2005), is tasked with
the power to act as arbitrator pending the establishment of the
Arbitral Tribunal. It provides:
“Pending the establishment of the Arbitration
Tribunal provided for under Article 16 of the Treaty, the Court
shall have the power to act as arbitrator for the purpose of
Article 16 of the Treaty”[1]
As at early this year, the Court is yet to exercise the arbitral
jurisdiction as the Council of Ministers are yet to approve its
Rules of Arbitration. As a matter of fact, the President of the
Court, Hon. Justice Jerome Traore opened the 2017/2018 Legal; year
of the court on Monday, 9th October 2017 with an appeal
to the ECOWAS Council of Ministers to approve the rules of
Arbitration to enable the Court exercise its Arbitral mandate.
How the Arbitral jurisdiction can support the mandate of
the Court
First, the point should be made that because arbitration is
basically a private contract, for the court to act as an arbitral
tribunal, there has to be an existing arbitration clause in the
contract between the parties designating the Court as the arbitral
panel for the resolution of their disputes. This is without
prejudice to member states subscribing by treaty to the arbitral
jurisdiction of the Court for inter-state dispute resolution.
For instance, Article 28 of the COMESA (Common Market for
Eastern and Southern Africa) Treaty grants the COMESA Court
jurisdiction to hear and determine any matter arising firstly, from
an arbitration clause contained in a contract, which confers such
jurisdiction to which the Common Market or any of its institutions
is a party.
Secondly, on matters arising from a dispute between the Member
States regarding the Treaty if the dispute is submitted to it under
a special agreement between the Member States concerned.
The COMESA Court is one of the key entities of the legally
established regional frameworks that will provide and support the
initiative for Alternative Dispute Resolution.
The point also needs to be made that for the court to exercise
this mandate effectively and expeditiously, capacity building of
the Justices of the court should be prioritized in order to create
a knowledgeable panel of arbitrators to support the process.
ALTERNATIVE DISPUTE RESOLUTION (ADR) AND NON-LITIGATORY
JUSRISDICTION OF ECOWAS COURT OF JUSTICE
Some call it Appropriate Dispute Resolution. Others call it
Amicable Dispute Resolution. Still others, who believe that its
origin is firmly rooted in Africa, call it African Dispute
Resolution. Whatever you may wish to call it, the fact remains that
there is a crying need to supplement litigation through more
peaceful and user-friendly options for resolving disputes. I have
had cause to argue that litigation should be the alternative
dispute resolution mechanism while Arbitration, Mediation, etc.
remain the preferred dispute resolution process.
Many of the techniques brought together under the umbrella term
‘ADR’ have deep and separate roots. For example, in many civil laws
in the Asian judicial system and African traditional dispute
resolution models, the Adjudicator has, by custom or duty
attempting to settle claims by conciliation. Mediation in family,
community, and labour relations disputes all have independent, and
sometimes, long standing historical or cultural roots.
The term Alternative Dispute Resolution (ADR) originated in the
USA in a drive to find alternatives to the traditional legal
system, felt to be adversarial, costly, unpredictable, rigid,
damaging to relationships and limited to narrow rights-based
remedies.
ADR as a term covers the whole range of alternatives to
litigation or arbitration, which involve third-party intervention
to assist resolution of disputes. In some writings, arbitration is
also referred to as part of ADR. It was, of course, the first
well-developed alternative to litigation.
The Role of ADR Practitioners
To enable ADR take its pride of place in justice delivery in
West Africa, ADR practitioners must play an encouraging role in
increasing awareness to litigants and lawyers alike of the
availability and benefits of ADR. They have to be professional at
all times and not rest on their oars in seeking continuing
education on how best to integrate ADR practice into their
profession.
Some notable provisions of the Treaty that supports ADR
processes include:
Article 21: Application for Intervention
Should a Member State consider that it has an interest that may
be affected by the subject matter of a dispute before the Court, it
may submit by way of a written application a request to be
permitted to intervene.
Article 22: Exclusivity of Competence and Recognition of
the Decisions of the Court
By paragraph 1, of Article 22, no dispute touching and
concerning the provisions of the Treaty may be referred to any
other form of settlement except that which is provided for by the
Treaty or this Protocol.
By paragraph 2, when a dispute is brought before the Court,
Member States or Institutions of the Community shall refrain from
any action likely to aggravate or militate against its
settlement.
Regulation MSC/REG.1/01/08 adopts the ECOWAS Conflict
Prevention Framework adopted as set forth in the following
paragraphs:
The Economic Community of West African States (ECOWAS) has, over
the years, proven its capacity to undertake successful conflict
prevention, peace-making and conflict resolution under the Protocol
relating to the Mechanism for Conflict Prevention, Management,
Resolution, Peacekeeping and Security of 10th December 1999
(hereafter referred to as the Mechanism). The Institution has
achieved remarkable success in fulfilling its mandate by containing
violent conflicts in the region and carrying out conflict
prevention interventions through preventive diplomacy initiatives –
fact-finding missions, quiet diplomacy, diplomatic pressure and
mediation.
The institution has also established several promising conflict
prevention organs to underpin its mandate, including the Early
Warning System, the Mediation and Security Council, Offices of the
Special Representative, the Council of the Wise and Special
Mediators. However, the implementation of the preventive aspects of
the Mechanism has at times, lacked a strategic approach. It has
been characterized by weak internal coordination, underutilization
and misdirection of existing human capacities as well as the
deployment of limited instruments.
The ECPF is intended as follows:
A comprehensive operational conflict prevention and
peace-building strategy that enables the ECOWAS system and Member
States to draw upon human and financial resources at the regional
(including civil society and the private sector) and international
levels in their efforts to creatively transform conflict.
ISSUES IN PRACTICE
Two questions:
- What are the permissible circumstances in which parties to a
dispute can be required to use ADR? - What are the standards of justice expected of such
processes
To answer these questions, you must understand the role and
possibilities of ADR processes and their relationship to the
courts. Debates on whether or not access to courts can be made
conditional on a prior consideration of ADR and the general
standards required of ADR often gather momentum in moments of
‘crises’ of ‘congestion, delay and expense’ in the national
judicial system.
As most cases are settled, proponents argue that a focus on
making ADR more effective ‘has an enormous potential for reducing
caseloads’.
A purely pessimistic view of ADR, however, conceals deeper
discussions on whether ADR carries public value to the same extent
as courts and whether it can and should offer similar standards of
justice to those presumed to be inherent in courts.
This view is the bane of ADR in most developing countries where
the gate keepers in the temple of justice are mostly “litigation
lovers” and only offer a flat view of dispute resolution that is
abstracted and that assumes that ADR does not use legal principles,
that it is unaffected by precedent and that it is incapable of
offering justice. Some of us focus on the public value of ADR and
are of the strong opinion that law and justice are not synonymous.
The characteristics of ADR such as ‘consent, participation,
empowerment, dignity, respect, empathy and emotional catharsis,
privacy, efficiency, quality solutions, equity, access, and yes,
even justice, underline this point. ADR is championed on
grounds that it advances self-determination and autonomy and
empowers parties to control the outcome and preserve pre-dispute
relationships. On this justification, the major critiques of
arbitration – for example, its privacy and confidentiality – are
seen as advantages to party choice and control of the dispute.
I therefore emphasize that courts are not necessarily the
optimal forum for all disputes and that not every dispute has to
have a public value.
This argument finds justification in the words of Michael
Moffitt ‘litigation fulfills its public function best if it is not
called upon as the method of resolving every kind of dispute.’
Is it an Either/Or Position?
The foregoing could imply the need for stark choices between ADR
and litigation. I would suggest that a better response is to
articulate the values and characteristics of litigation in more
detail and to assess the circumstances in which other forms of
dispute resolution might be appropriate and whether their use is
conditional on the transfer of some or all of the values and
characteristics of litigation.
This is particularly the case given the developments in the
forms of ADR beyond the traditional models of conciliation,
mediation and arbitration that include hybrid models and the many
variants within each model, including whether engagement is
voluntary or mandatory; whether the ‘outcome is consensual or
commanded’; how formal the process is and whether it is integrated
into the judicial system (Multi-door courts); whether the decisions
reached are binding; whether the process is public or private.
These factors challenge generalized assumptions about ADR, with
Menkel-Meadow noting that ‘the truth is that the landscape of
disputing has indeed become more and more complex, with predictions
of outcomes, costs and strategies harder and harder to produce with
any degree of accuracy’.
The Multi-Door Courthouse Concept
The concept of a Multi-Door Courthouse was developed in the
United States in 1976 by Professor Frank Sander, a Professor of Law
at Harvard University, who delivered a paper to the National
Conference on the Causes of Popular Dissatisfaction with the
Administration of Justice. To determine which dispute resolution
mechanism is appropriate, he set the following criteria: cost,
speed, accuracy, credibility and workability. Multi-door Courthouse
supplements litigation by providing additional “doors” towards a
faster, cost-effective and user-friendly access to justice.
After a careful study of the multi-door concept and the success
stories in its trail, the Institute of Chartered Mediators and
Conciliators, the leading Institute advocating ADR, is promoting
the concept in the Nigerian Justice System, providing technical
support and consultancy services for the establishment of
Multi-Door Courthouses and Mediation Centers across the
country.
The concept is justified when instead of just one door
(litigation) leading to the courtroom, such a justice center has
five (5) other doors through which disputes are resolved.
These doors are:
- Mediation
- Arbitration
- Conciliation
- Expert Determination
- Early Neutral Evaluation
The connection to the court gives more credibility to the ADR
process itself. A very appropriate example is the Canadian
experience – The Canada ADR Project. The Evaluation Report of the
Project puts it thus:
“Its connection to the Court ensures its credibility in the
eyes of the clients and counsel… ensures the accountability of the
services to the court itself, and through the court to the
public…”
The necessity of attaching the ADR Centre to the court demands
that facilities in the court premises be upgraded and that basic
communication/information technology equipment be provided for the
project.
Also, the Community Court can afford adequate space for the
ECOWAS multi-Door Courthouse.
In conclusion, I desire to offer a methodology for the ECOWAS
court when assessing the voluntary and mandatory use of ADR. This
methodology would engage with some of the harder questions and
challenges raised earlier in order to contribute to the positive
development of ADR and minimize its challenges.
However, the Court is unlikely to develop a clearer approach in
the abstract as it can only respond to the cases it receives.
Presently, the court is set to deliver a judgement/ruling on the
Benue state Indigenes and Herdsmen case and challenges should be
expected as the outcome may not be acceptable to one of the parties
in the future, hence with the increased promotion of ADR by
national and regional stakeholders, such disputes may be better
suited for ADR.
Since one of the main justifications for the use of ADR is the
autonomy and empowerment of the parties to resolve their disputes,
the Court should generally avoid over-prescription whenever the
parties initiate ADR.
The doctrine of equality of arms requires each party to be given
a reasonable opportunity to present his case under conditions that
do not place him at a substantial disadvantage vis-à-vis
his opponent. The doctrine would appear particularly well placed to
respond to some of the critiques of ADR by focusing on the ability
to participate in the process. In applying the doctrine, two key
principles – procedural justice and legal accompaniment and
representation – could provide a framework for assessing the
voluntary nature of such engagement.
This paper has sought to contribute to the growing developments
in the field of ADR by examining the ways in which supranational
courts might examine the standards required of ADR, whether they
are engaged voluntarily or mandatorily and given the permissibility
of formal diversions from the courts to ADR.
Finally, let me on behalf of the Institute of Chartered
Mediators and Conciliators, offer our technical support and
assistance to the ECOWAS Court in your efforts to streamline ADR in
your processes for dispute resolution.
* Paper presented at the 2-day Consultative Meeting
of ECOWAS Court of Justice
INTRODUCTION
The premise of this paper is that previous speakers have dwelt
extensively on the legal architecture, jurisdiction, challenges;
etc. of the Court before now and therefore, this audience should be
spared repetition as much as it is practicable.
This paper hopes to examine the types of processes that
supranational bodies, with particular reference to ECOWAS Court,
currently employ, and should employ in the future, to determine the
compatibility of a particular dispute resolution process with the
right of access to justice, in other words, what are the
appropriate dispute resolution processes (ADR) for such bodies. The
concept of access to justice within the context of this paper is
used advisedly with knowledge of the history of the resistance to
ADR as a viable alternative to public courts.
In 1975, the European Court of Human Rights (ECtHR) held that
‘one can scarcely conceive of the rule of law without there
being a possibility of having access to the courts’. Yet
the presumption that courts are the principal forum for dispute
resolution continues to be eroded through the proliferation of
alternative forms of dispute resolution (ADR), both agreement based
(such as mediation and conciliation) and adjudicative (such as
arbitration).
ADR can be integrated within national court systems and enjoy
support at the international level. Also, the European Union has
also adopted a series of resolutions on mediation, and its
Fundamental Rights Agency is exploring the role of non-judicial
processes under the theme of ‘justice in austerity’
ECOWAS Community Court of
Justice
The Community Court of Justice was created pursuant to the
provisions of Articles 6 and 15 of the Revised Treaty of the
Economic Community of West African States (ECOWAS).
Its organizational framework, functioning mechanism, powers, and
procedure applicable before it are set out in Protocol A/P1/7/91 of
6 July 1991, Supplementary Protocol A/SP.1/01/05 of 19 January
2005, Supplementary Protocol A/SP.2/06/06 of 14 June 2006,
Regulation of 3 June 2002, and Supplementary Regulation
C/REG.2/06/06 of 13 June 2006.
Particularly, Supplementary Protocol A/SP.1/01/05, which amended
the Preamble and Articles 1, 2, 9, and 30 of the 1991 Protocol.
Article 9 now contains the following:
- The Court has competence to adjudicate on any dispute
relating to the following: - The interpretation and application of the Treaty,
Conventions and Protocols of the Community; - The interpretation and application of the regulations,
directives, decisions, and other subsidiary legal instruments
adopted by ECOWAS; - The legality of regulations, directives, decisions, and
other legal instruments adopted by ECOWAS; - The failure by Member States to honor their obligations
under the Treaty, Conventions and Protocols, regulations,
directives or decisions of ECOWAS; - The provisions of the Treaty, Conventions and Protocols,
regulations, directives or decisions of ECOWAS Member
States; - The Community and its officials; and
- The action for damages against a Community institution or
an official of the Community for any action or omission in the
exercise of official functions. - The Court shall have power to determine any non-contractual
liability of the Community and may order the Community to pay
damages or make reparation for official acts or omissions of any
Community institution or Community officials in the performance of
official duties or functions. - Any action by or against a Community Institution or any
Member of the Community shall be statute barred after three (3)
years from the date when the right of action arose. - The Court has jurisdiction to determine case of violation
of human rights that occur in any Member State. - Pending the establishment of the Arbitration
Tribunal provided for under Article 16 of the Treaty, the Court
shall have the power to act as arbitrator for the purpose of
Article 16 of the Treaty. - The Court shall have jurisdiction over any matter provided
for in an agreement where the parties provide that the court shall
settle disputes arising from the agreement. - The court shall have the powers conferred upon it by the
provisions of this Protocol as well as any other powers that may be
conferred by subsequent Protocols and decisions of the
Community. - The Authority of Heads of State and Government shall have
the power to grant the Court the power to adjudicate on any
specific dispute that it may refer to the Court other than those
specified in this Article.
The Court of Justice (CCJ) of ECOWAS (the Court), by virtue of
Article 9(5) of the Supplementary Protocol (2005), is tasked with
the power to act as arbitrator pending the establishment of the
Arbitral Tribunal. It provides:
“Pending the establishment of the Arbitration
Tribunal provided for under Article 16 of the Treaty, the Court
shall have the power to act as arbitrator for the purpose of
Article 16 of the Treaty”[1]
As at early this year, the Court is yet to exercise the arbitral
jurisdiction as the Council of Ministers are yet to approve its
Rules of Arbitration. As a matter of fact, the President of the
Court, Hon. Justice Jerome Traore opened the 2017/2018 Legal; year
of the court on Monday, 9th October 2017 with an appeal
to the ECOWAS Council of Ministers to approve the rules of
Arbitration to enable the Court exercise its Arbitral mandate.
How the Arbitral jurisdiction can support the mandate of
the Court
First, the point should be made that because arbitration is
basically a private contract, for the court to act as an arbitral
tribunal, there has to be an existing arbitration clause in the
contract between the parties designating the Court as the arbitral
panel for the resolution of their disputes. This is without
prejudice to member states subscribing by treaty to the arbitral
jurisdiction of the Court for inter-state dispute resolution.
For instance, Article 28 of the COMESA (Common Market for
Eastern and Southern Africa) Treaty grants the COMESA Court
jurisdiction to hear and determine any matter arising firstly, from
an arbitration clause contained in a contract, which confers such
jurisdiction to which the Common Market or any of its institutions
is a party.
Secondly, on matters arising from a dispute between the Member
States regarding the Treaty if the dispute is submitted to it under
a special agreement between the Member States concerned.
The COMESA Court is one of the key entities of the legally
established regional frameworks that will provide and support the
initiative for Alternative Dispute Resolution.
The point also needs to be made that for the court to exercise
this mandate effectively and expeditiously, capacity building of
the Justices of the court should be prioritized in order to create
a knowledgeable panel of arbitrators to support the process.
ALTERNATIVE DISPUTE RESOLUTION (ADR) AND NON-LITIGATORY
JUSRISDICTION OF ECOWAS COURT OF JUSTICE
Some call it Appropriate Dispute Resolution. Others call it
Amicable Dispute Resolution. Still others, who believe that its
origin is firmly rooted in Africa, call it African Dispute
Resolution. Whatever you may wish to call it, the fact remains that
there is a crying need to supplement litigation through more
peaceful and user-friendly options for resolving disputes. I have
had cause to argue that litigation should be the alternative
dispute resolution mechanism while Arbitration, Mediation, etc.
remain the preferred dispute resolution process.
Many of the techniques brought together under the umbrella term
‘ADR’ have deep and separate roots. For example, in many civil laws
in the Asian judicial system and African traditional dispute
resolution models, the Adjudicator has, by custom or duty
attempting to settle claims by conciliation. Mediation in family,
community, and labour relations disputes all have independent, and
sometimes, long standing historical or cultural roots.
The term Alternative Dispute Resolution (ADR) originated in the
USA in a drive to find alternatives to the traditional legal
system, felt to be adversarial, costly, unpredictable, rigid,
damaging to relationships and limited to narrow rights-based
remedies.
ADR as a term covers the whole range of alternatives to
litigation or arbitration, which involve third-party intervention
to assist resolution of disputes. In some writings, arbitration is
also referred to as part of ADR. It was, of course, the first
well-developed alternative to litigation.
The Role of ADR Practitioners
To enable ADR take its pride of place in justice delivery in
West Africa, ADR practitioners must play an encouraging role in
increasing awareness to litigants and lawyers alike of the
availability and benefits of ADR. They have to be professional at
all times and not rest on their oars in seeking continuing
education on how best to integrate ADR practice into their
profession.
Some notable provisions of the Treaty that supports ADR
processes include:
Article 21: Application for Intervention
Should a Member State consider that it has an interest that may
be affected by the subject matter of a dispute before the Court, it
may submit by way of a written application a request to be
permitted to intervene.
Article 22: Exclusivity of Competence and Recognition of
the Decisions of the Court
By paragraph 1, of Article 22, no dispute touching and
concerning the provisions of the Treaty may be referred to any
other form of settlement except that which is provided for by the
Treaty or this Protocol.
By paragraph 2, when a dispute is brought before the Court,
Member States or Institutions of the Community shall refrain from
any action likely to aggravate or militate against its
settlement.
Regulation MSC/REG.1/01/08 adopts the ECOWAS Conflict
Prevention Framework adopted as set forth in the following
paragraphs:
The Economic Community of West African States (ECOWAS) has, over
the years, proven its capacity to undertake successful conflict
prevention, peace-making and conflict resolution under the Protocol
relating to the Mechanism for Conflict Prevention, Management,
Resolution, Peacekeeping and Security of 10th December 1999
(hereafter referred to as the Mechanism). The Institution has
achieved remarkable success in fulfilling its mandate by containing
violent conflicts in the region and carrying out conflict
prevention interventions through preventive diplomacy initiatives –
fact-finding missions, quiet diplomacy, diplomatic pressure and
mediation.
The institution has also established several promising conflict
prevention organs to underpin its mandate, including the Early
Warning System, the Mediation and Security Council, Offices of the
Special Representative, the Council of the Wise and Special
Mediators. However, the implementation of the preventive aspects of
the Mechanism has at times, lacked a strategic approach. It has
been characterized by weak internal coordination, underutilization
and misdirection of existing human capacities as well as the
deployment of limited instruments.
The ECPF is intended as follows:
A comprehensive operational conflict prevention and
peace-building strategy that enables the ECOWAS system and Member
States to draw upon human and financial resources at the regional
(including civil society and the private sector) and international
levels in their efforts to creatively transform conflict.
ISSUES IN PRACTICE
Two questions:
- What are the permissible circumstances in which parties to a
dispute can be required to use ADR? - What are the standards of justice expected of such
processes
To answer these questions, you must understand the role and
possibilities of ADR processes and their relationship to the
courts. Debates on whether or not access to courts can be made
conditional on a prior consideration of ADR and the general
standards required of ADR often gather momentum in moments of
‘crises’ of ‘congestion, delay and expense’ in the national
judicial system.
As most cases are settled, proponents argue that a focus on
making ADR more effective ‘has an enormous potential for reducing
caseloads’.
A purely pessimistic view of ADR, however, conceals deeper
discussions on whether ADR carries public value to the same extent
as courts and whether it can and should offer similar standards of
justice to those presumed to be inherent in courts.
This view is the bane of ADR in most developing countries where
the gate keepers in the temple of justice are mostly “litigation
lovers” and only offer a flat view of dispute resolution that is
abstracted and that assumes that ADR does not use legal principles,
that it is unaffected by precedent and that it is incapable of
offering justice. Some of us focus on the public value of ADR and
are of the strong opinion that law and justice are not synonymous.
The characteristics of ADR such as ‘consent, participation,
empowerment, dignity, respect, empathy and emotional catharsis,
privacy, efficiency, quality solutions, equity, access, and yes,
even justice, underline this point. ADR is championed on
grounds that it advances self-determination and autonomy and
empowers parties to control the outcome and preserve pre-dispute
relationships. On this justification, the major critiques of
arbitration – for example, its privacy and confidentiality – are
seen as advantages to party choice and control of the dispute.
I therefore emphasize that courts are not necessarily the
optimal forum for all disputes and that not every dispute has to
have a public value.
This argument finds justification in the words of Michael
Moffitt ‘litigation fulfills its public function best if it is not
called upon as the method of resolving every kind of dispute.’
Is it an Either/Or Position?
The foregoing could imply the need for stark choices between ADR
and litigation. I would suggest that a better response is to
articulate the values and characteristics of litigation in more
detail and to assess the circumstances in which other forms of
dispute resolution might be appropriate and whether their use is
conditional on the transfer of some or all of the values and
characteristics of litigation.
This is particularly the case given the developments in the
forms of ADR beyond the traditional models of conciliation,
mediation and arbitration that include hybrid models and the many
variants within each model, including whether engagement is
voluntary or mandatory; whether the ‘outcome is consensual or
commanded’; how formal the process is and whether it is integrated
into the judicial system (Multi-door courts); whether the decisions
reached are binding; whether the process is public or private.
These factors challenge generalized assumptions about ADR, with
Menkel-Meadow noting that ‘the truth is that the landscape of
disputing has indeed become more and more complex, with predictions
of outcomes, costs and strategies harder and harder to produce with
any degree of accuracy’.
The Multi-Door Courthouse Concept
The concept of a Multi-Door Courthouse was developed in the
United States in 1976 by Professor Frank Sander, a Professor of Law
at Harvard University, who delivered a paper to the National
Conference on the Causes of Popular Dissatisfaction with the
Administration of Justice. To determine which dispute resolution
mechanism is appropriate, he set the following criteria: cost,
speed, accuracy, credibility and workability. Multi-door Courthouse
supplements litigation by providing additional “doors” towards a
faster, cost-effective and user-friendly access to justice.
After a careful study of the multi-door concept and the success
stories in its trail, the Institute of Chartered Mediators and
Conciliators, the leading Institute advocating ADR, is promoting
the concept in the Nigerian Justice System, providing technical
support and consultancy services for the establishment of
Multi-Door Courthouses and Mediation Centers across the
country.
The concept is justified when instead of just one door
(litigation) leading to the courtroom, such a justice center has
five (5) other doors through which disputes are resolved.
These doors are:
- Mediation
- Arbitration
- Conciliation
- Expert Determination
- Early Neutral Evaluation
The connection to the court gives more credibility to the ADR
process itself. A very appropriate example is the Canadian
experience – The Canada ADR Project. The Evaluation Report of the
Project puts it thus:
“Its connection to the Court ensures its credibility in the
eyes of the clients and counsel… ensures the accountability of the
services to the court itself, and through the court to the
public…”
The necessity of attaching the ADR Centre to the court demands
that facilities in the court premises be upgraded and that basic
communication/information technology equipment be provided for the
project.
Also, the Community Court can afford adequate space for the
ECOWAS multi-Door Courthouse.
In conclusion, I desire to offer a methodology for the ECOWAS
court when assessing the voluntary and mandatory use of ADR. This
methodology would engage with some of the harder questions and
challenges raised earlier in order to contribute to the positive
development of ADR and minimize its challenges.
However, the Court is unlikely to develop a clearer approach in
the abstract as it can only respond to the cases it receives.
Presently, the court is set to deliver a judgement/ruling on the
Benue state Indigenes and Herdsmen case and challenges should be
expected as the outcome may not be acceptable to one of the parties
in the future, hence with the increased promotion of ADR by
national and regional stakeholders, such disputes may be better
suited for ADR.
Since one of the main justifications for the use of ADR is the
autonomy and empowerment of the parties to resolve their disputes,
the Court should generally avoid over-prescription whenever the
parties initiate ADR.
The doctrine of equality of arms requires each party to be given
a reasonable opportunity to present his case under conditions that
do not place him at a substantial disadvantage vis-à-vis
his opponent. The doctrine would appear particularly well placed to
respond to some of the critiques of ADR by focusing on the ability
to participate in the process. In applying the doctrine, two key
principles – procedural justice and legal accompaniment and
representation – could provide a framework for assessing the
voluntary nature of such engagement.
This paper has sought to contribute to the growing developments
in the field of ADR by examining the ways in which supranational
courts might examine the standards required of ADR, whether they
are engaged voluntarily or mandatorily and given the permissibility
of formal diversions from the courts to ADR.
Finally, let me on behalf of the Institute of Chartered
Mediators and Conciliators, offer our technical support and
assistance to the ECOWAS Court in your efforts to streamline ADR in
your processes for dispute resolution.