Improving timely and effective response to citizens’ complaints through the use of alternate dispute resolution [ADR] mechanisms

Individuals, businesses and organizations always stress the need for fast decisions and dispute resolution procedures, which support rather than undermine business and personal relationships. As a result alternative dispute resolution techniques are becoming increasingly popular because they tend to answer this need as well as offset some of the defects of the traditional dispute resolution system [litigation].

The Senate Committee On Ethics, Code Of Conduct And Public Petitions (‘Senate Committee’) was established by virtue of Order XIII, Rule 97(4) of the Senate Standing Orders 2007, as amended to offer an alternative means of addressing citizens’ complaints and grievances on administrative injustices and breach of human rights. With the same objective, the House of Representatives Committee On Public Petitions (‘House Of Representatives Committee”) was established by virtue of Order XVII, Rule A5 of the House of Representatives Standing Orders 2007.

Rather than recourse to litigation [or sometimes even after litigation], members of the public have resorted to sending petitions seeking redress to any of your two Committees.

FUNCTIONS OF THE SENATE COMMITTEE

Order XIII, Rule 97(4) of the Senate Standing Orders 2007, states the functions of the Senate Committee are as follows:

(a) To consider all petitions referred to it by the Senate;

(b) To report to the Senate, from time to time, the actions it thinks fit to be taken thereon;

(c) To report observations pertaining to the signatures on the petition or any other observations it might have to the Senate;

(d) To make recommendations to the Senate on such administrative actions as it deems fit to be established;

(e) To enforce standards of official conducts for the Senators;

(f) To oversee and monitor the activities of the Code of Conduct Bureau; and

(g) To oversee the activities of the Public Complaints Commission.

The functions of the House of Representatives Committee are similar to that of the Senate minus oversight responsibilities.

Although the Senate Standing Orders 2007, as amended and the House Standing Orders 2007 do not expressly provide the methods to be utilized in resolving issues raised in petitions to the Senate and House Committees, Alternative Dispute Resolution (ADR) mechanisms can be a viable tool in resolving petitions referred to your Committees for resolution.

TYPES OF ADR

ADR typically refers to processes and techniques that are used as a means for parties to settle their disputes without necessarily resorting to the courts for adjudication. By its very name – alternative dispute resolution, it is clear that usually all ADR mechanisms are expected to take place outside of, and unconnected with the courtroom.

These mechanisms include the following:

ARBITRATION

This is the process of resolution of disputes whereby two parties agree to be bound by the decision of an independent third party (the arbitrator). The main feature of arbitration is that it is consensual [by agreement of the parties]. The role of an arbitrator is similar to that of a judge, though the procedures are less formal and an arbitrator is usually an expert in his/her own right. Arbitration is the most formal ADR mechanism as there are rules and laws to be followed by parties and arbitrator(s) which give it a court-like structure. In Nigeria, Arbitration is governed by the Arbitration and Conciliation Act, Cap. A18, LFN 2004 which provides for the composition and jurisdiction of the arbitration tribunal, the conduct of arbitral proceedings, making of awards and termination of proceedings, recourse against award. An arbitration award is enforced in the same manner as a judgment of the court.

Arbitration is by written agreement of the parties and this agreement is irrevocable except by agreement between the two parties or by leave of court1. Where an aggrieved petitioner has entered into an agreement which contains an arbitration clause, your respective Committees should direct the petitioner to commence arbitration proceedings rather than come by way of petition, as the parties have chosen how they wish their disputes to be resolved. The formal nature of the arbitration process [ agreement of the parties and the appointment of an arbitrator] means it is not a desirable ADR process for the use of your Committees in resolving petitions brought before you.

CONCILIATION

This is also regulated by the Arbitration and Conciliation Act, LFN 2004, it is the resolution of conflict by consensus. Under the Act, the word ‘conciliation’ is not defined. The Act merely provides that the parties to any agreement may seek amicable settlement of any dispute in relation to the agreement by conciliation. Conciliation is a technique of dispute resolution wherein a third party or conciliator (who may or may not be totally neutral to the interests of the parties) is used by the parties to help resolve matters arising amicably. A conciliator does not give a decision, but his main function is to assist the parties themselves in coming to a settlement.

MEDIATION

Mediation is a confidential, informal and voluntary way of resolving a dispute with the help of a neutral third person (the mediator). The mediator works with both parties and helps them to reach a mutually agreeable solution. Mediation is the intervention in a negotiation or a conflict of an acceptable, impartial and neutral third party who has limited or no authoritative decision-making power, but who assists the involved parties in voluntarily reaching a mutually acceptable settlement of issues in dispute. In addition to addressing substantive issues, mediation may also strengthen or establish relationships of trust and respect between the parties, or terminate relationships in a manner that minimizes costs and psychological harm. Mediation is useful in highly polarized disputes where the parties have either been unable to initiate a productive dialogue, or where the parties have been talking and have reached a seemingly insurmountable impasse.

A mediator makes primarily procedural suggestions regarding how the parties can reach agreement. Occasionally, a mediator may suggest some substantive options as a means of encouraging the parties to expand the range of possible resolutions under consideration. He often works with parties individually or in caucuses, to explore acceptable resolution options or to develop proposals that might move the parties closer to resolution.

NEGOTIATION

Negotiation as a method of dispute resolution refers to talks between conflicting parties who discuss ideas, information and options in order to reach mutually acceptable agreements. Since communications are essentially between the conflict parties and do not necessarily require the presence of a third party, this ADR technique may not be useful to your Committees in performing your functions.

Conciliation and Mediation may be the ADR techniques most suited to the resolution of public petitions since members of your Committees can act as Conciliators or Mediators in an effort to resolve the dispute which has resulted in the petition. They usually provide a win-win situation as parties are allowed to play a key role in arriving at decisions. They also help in reducing the bitterness that comes at the end of litigation.

I note the decision of the Senate on the 24th of July, 2013, the petition brought by disengaged staff of the National Identity Management Commission alleging unlawful disengagement advising the aggrieved parties to seek redress in Court. That decision was based on the recommendation of the joint Senate Committee on National Identity and National Population, Employment, Labour and Productivity and your Senate Committee. Perhaps efforts to resolve the dispute by the disengaged workers using conciliation and mediation techniques would have achieved a better objective of a speedy resolution of the dispute.

Oftentimes petitions come to your Committees because petitioners feel they will not obtain redress in the courts, ir the process is too slow or too expensive. Some of the advantages ADR Mechanisms offer over litigation are;

CONFIDENTIALITY

a court trial is a public trial. Parties to a dispute might want their dispute to remain secret for reasons ranging from protecting their name from bad publicity or protecting trade secrets that would have been made public in a court trial. The parties also have the liberty to choose any competent person of their choice to aid resolution of the dispute. Therefore, the issues in the dispute remain within a few and not subject to public scrutiny as in litigation.

TIME

Because litigation is subject to a large volume of court rules and laws, the possibility of cases dragging on for years is high. For parties for whom time is of the essence, either because of looming interest rates, or because the fulfillment of other obligations is dependent on the resolution of the dispute, there is a need to find a quicker and faster means of arriving at an amicable conclusion between parties without being at the mercy of the already burdened judicial system. Where ADR is introduced at the onset of a conflict, much time and money could be saved.

In Nigeria, litigation is usually protracted, time consuming and expensive. A look at the case-list of the courts reveals matters that have been pending for several years. This does not augur well for business organizations. By producing early settlement, alternative dispute resolution reduces the time and money disputants might otherwise spend on litigation.

COST

While it cannot be said that all ADR mechanisms are cheaper than litigation, in some instances ADR would seem the cheapest available options to litigation.

Flexibility and Control – ADR gives the parties greater flexibility and control in the dispute resolution process. The flexibility and control is evident in the procedures followed, the interests considered and the remedies adopted. It enables the parties to adopt a process which best suits the particular situation. This is unlike litigation which follows laid-down rules of the court and focuses only on the parties’ legal rights and responsibilities. ADR goes further than this, as it not only addresses the parties’ legal rights and obligations but also takes into account a wide variety of non-legal interests and concerns such as an interest in preserving the relationship between the parties, which is of utmost importance in commercial and trade transactions.

In utilising ADR techniques to resolve disputes, the noted advantages of ADR are that these ADR mechanisms are usually faster and because the mode of resolution is structured the mediator or conciliator is focused on helping both parties to make commercial decisions and arrive at a win-win decision. It is based on more participation by the parties.

ENFORCEABILITY OF ADR DECISIONS

An arbitral award shall be recognized as binding and may be enforced upon an application in writing to the court, except where the court grants an application to refuse recognition or enforcement of the award, made by either of the parties.

The Arbitration and Conciliation Act LFN does not state whether agreements made by conciliation, mediation or negotiation can be enforced, however it can be inferred that if parties reach an agreement they can ask the court to enter their terms of settlement as a consent judgment which immediately becomes binding on the parties.

CONCLUSION

A study of the provisions of the Standing Orders of both the Senate and the House, and the scope of the petitions being sent by aggrieved citizens, appears to suggest that the jurisdiction of the Senate and the House of Representatives do not extend to situations in which parties have already taken the matter to Court for determination or where an action has been taken on the matter by an administrative panel. Indeed, these petitions are usually brought before redress is sought in the Courts or administrative panels. At this stage intervention by your respective Committees by way of ADR intervention would be a welcome development as ADR is a cheaper and a viable option for resolving disputes due to the speed at which decisions are made, confidentiality and the role of parties in arriving at the decisions. If members of your Committees are trained in the various ADR techniques, the ability of your Committees to determine those petitions which can be resolved by way of utilising ADR procedures as against those in which public [or private] hearings are required, will be much enhanced,

By: Mrs ‘Funke Adekoya [SAN]

A PRESENTATION DELIVERED BY MRS ‘FUNKE ADEKOYA [SAN] AT THE STRATEGIC RETREAT SESSION OF THE SENATE AND HOUSE COMMITTEES HANDLING PUBLIC PETITION MATTERS.