Online Disputes Resolution (ODR): A Fast Rising Alternative Disputes Resolution Mechanism:The Need For Thorough Legal Application And Implementation In Nigeria
By Rachel Udoinyang (LL.B Hons.)
INTRODUCTION
Over the years, the processes and procedures of settling legal disputes through Alternative Disputes Resolution (ADR) mechanisms has proven not to be just a speedy but also effectively viable, time considerate and financially moderate means of settling disputes. This is of course as opposed to the traditional method of disputes settlements by way of litigation through the courts which is void of doubts as to the fact that a good number of years may go bye before judgement is finally given upon a matter. Thus, the ADR mechanisms are not without statutory backings as the Constitution of the Federal Republic of Nigeria 1999 (as amended)[1] as well as a plethora of recognized state laws, legal authors, firms, international organizations and even the parties to disputes themselves mostly opt for these mechanisms in the settlement of their legal disputes. The emergence of technology and globalization on the other hand has in no way relented efforts in the fight for easy and more time saving modes of settling legal disputes. This has thus, brought about several technological concepts and procedures associated with legal practice and one of which is the Online Disputes Resolution (ODR) mechanisms of disputes settlements, clearly seen to be a fast growing trend in the future of the legal practice across the globe, which of course has received wide acceptance in most nations while others are on the move to incorporate them into their legal systems. This paper therefore seeks to briefly explain the meaning and forms of ADR, while diving vividly into the concept of ODR, its forms, the merits, the need for legal backings and implementation following the far reaching effects it will have on the legal sphere as well as the need for the 21st Century legal practitioners to brace up and adapt to the ever changing face of legal practice as a result of technology.
WHAT IS ALTERNATIVE DISPUTES RESOLUTION (ADR)?
Alternative Dispute Resolution (ADR) from a personal point of view simply refers to any means through which legal disputes between parties can be settled outside of the courtroom or without the aid of litigation. Orojo, is of the view that “The term Alternative Dispute Resolution is used generally to describe the method and procedures used in resolving disputes either as alternatives to traditional dispute resolution mechanism of the court or some cases supplementary to such mechanism” [2] Going further, Justice Dyson in the case of HASLEY MILTON KYNES GENERAL NHS TRUST, [3] defined ADR as;
“A collective description of methods of resolving dispute otherwise than the normal trial process” Thus, ADR mechanisms have become a significant and indispensable part of the legal system of Nigeria as a result of the uncontrollable queues and delays occasioned by the rising costs of litigation which has continued to affect litigants.
ADR is however not without legal backings as section 19(d) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), provides for the settlement of disputes by Arbitration, Mediation, Conciliation, Negotiation and Adjudication. Also, by virtue of the provisions of Order 19 of the Federal High Court (Civil procedure) Rules of Nigeria, supportive court interventions in arbitral proceedings are provided for. High Court Civil Procedure Rules of various States also provide for reference of cases to ADR, for example, Order 19 and 28 of the High Court of the Federal Capital Territory and Lagos State Civil Procedure Rules, respectively. The Rules of Professional Conduct for Legal Practitioners by the provisions of Rule 15(3)(d) mandates Lawyers also, to attempt an alternative dispute resolution before bringing any matter before the Court for hearing.
One of the primary reasons parties may prefer ADR proceedings is that, as opposed to adversarial litigation which rarely gives disputing parties the opportunity to interact closely and enter into collaborative agreements with each other, ADR procedures are often collaborative and thus, help disputants understand each other’s positions. Also, certain decisions which the courts may be disallowed to impose may be welcomed by ADR, giving the parties more leverage to come up with viable and more creative solutions to their disputes settlements.
The regular forms of ADR therefore includes arbitration, mediation, conciliation as well as negotiation.
ARBITRATION
Arbitration refers to the hearing and determination of a dispute between parties by an impartial third party(s) agreed by both parties and whose decision or conclusion (award) is binding upon the parties. Arbitration is a special branch of ADR in the sense that in some respects, it possesses some attributes of litigation because it combines both diplomatic and judicial procedures and the arbitrators are required to base their decisions on law.[4] Arbitration is regulated by the Arbitration and Conciliation Act in the entire Federation except Lagos State[5] where it is regulated by the Lagos State Arbitration Law 2009.[6] The forms of arbitration therefore include; customary domestic, institutional, ad-hoc and international arbitrations. It is pertinent to state however that disputes involving crime cannot be settled by arbitration because such offence must be reported to the appropriate authorities for proper investigation and prosecution and this is based on grounds of public policy.[7]
MEDIATION
Mediation is a dynamic structured ADR mechanism where disputing parties are assisted by a neutral third party known as the mediator to resolve their conflicts through the use of specialized communication as well as negotiation processes. Noone defined mediation as “ a process in which an impartial third party called the mediator is invited to facilitate the resolution of a dispute by the self-determined agreement of disputants. The mediator facilitates communication, promotes understanding, focuses the parties on their interests and uses creative problem-solving techniques to enable the parties to reach their own agreement.”[8]
From the above definition, it is clear that the decisions of the mediator are not binding and the parties cannot be compelled to come to an agreement against their wish thus, the major function if the mediator is to facilitate such agreement by creating a structure in which issues in dispute between the parties are aired and the parties can also hear what each other has to say. and also helps the parties to negotiate and achieve a win-win approach to their dispute.[9] The bulk of mediators around the world today consists of retired judges as a result of the trust disputants have in their personality, judgements and problem solving skills.
CONCILIATION
Conciliation is an ADR process whereby the parties to a dispute use a conciliator, who meets with the parties both separately and together in an attempt to resolve their differences. They do this by lowering tensions, improving communications, interpreting issues, encouraging parties to explore potential solutions and assisting parties in finding a mutually acceptable outcome.[0] While conciliation and mediation have similarities, they are distinguishable because whereas mediation has no statutory protection in Nigeria, Conciliation is regulated by the Arbitration and Conciliation Act.[11] Where the parties decide on one conciliator, they are to appoint the conciliator jointly and the parties are also free to accept or reject the terms of settlement, hence, where the terms of settlement is accepted by the parties, it becomes binding on them and can be enforced through the courts.[12]
NEGOTIATION
Halpern defines negotiation as “a problem-solving process in which teo or more people voluntarily discuss their differences and attempt to reach a joint decision on their own on their common concerns.” [13] Hence, negotiation may take the form of face to face communication, telephone or written communication. This means that negotiation involves only the parties to the dispute who may be more than two depending on the circumstance without involving a third party. Negotiations may take place in both civil and criminal matters because the provision of plea bargaining in statutes in Nigeria such as the Administration of Criminal Justice Law of Lagos State has made it possible for accused persons to enter into negotiations with the prosecution.
WHAT IS ONLINE DISPUTES RESOLUTION (ODR)?
In view of the emergence and continuous developments of technology, there has been widespread advancements in the modes of providing legal services, examples of which include online provision of legal advice, data analysis, document automation as well as our current focus; Online Disputes Resolution.
ODR is is a form of disputes resolution mechanism which uses technology to facilitate the resolution of disputes between parties by a combination of all the methods of Alternative Disputes Resolution methods to-wit Arbitration, Negotiation, Conciliation and Mediation. The collective term “On-line Dispute Resolution (ODR)” is used internationally for different forms of on-line dispute settlement by means of ADR-methods.
ODR supplements existing ADR methods based on the assumption that certain disputes (more specifically e-disputes) can also be resolved quickly and adequately via the Internet.[14] Thus, In this respect it is often seen as being the online equivalent of (ADR). ODR is a wide field, which may be applied to a range of disputes; from interpersonal disputes including consumer to consumer disputes or marital separation;[15] to court disputes of which this work concerns itself.
A prior key step in the development of ODR came through the website “eBay.” Since 1999, the online marketplace giant has provided an internal system for parties to a transaction to settle their disputes online. Today, that system helps parties resolve over 60 million disputes each year, a number that closely resembles the total annual volume of cases filed in all US civil courts. This sort of capacity demonstrates what ODR is capable of, both in terms of the number of cases handled, and the ability to empower parties to expeditiously resolve their own disputes.[16]
A core foundation of which the concept and procedures of ODR was accepted and indoctrinated into the Nigerian legal sector was the Covid-19 pandemic period in 2020 when physical interaction was reduced to none as a result of government ban on social gatherings. Court sessions therefore had to be carried out virtually due to the difficulties in getting the litigants physically present in the courtrooms thus, the massive upheaval caused by the pandemic in litigation processes highlighted the global need for the development of an effective remote justice system with the aid of technology and Nigeria was not left behind in the trend as innovations in courts at all levels started holding remote proceedings as a way to continue their work amid Coronavirus pandemic. As a way of encouraging the justice system, the Chief Justice of Nigeria Ibrahim Tanko Muhammad (as he then was), commissioned a digital courtroom for Federal High Court, urging all courts to cue in for effective justice delivery and this was done as part of efforts to institutionalize a technology-driven justice judiciary in Nigeria.The digital courtroom, according to the CJN, was one of the nine pilot projects initiated by the National Judicial Council (NJC) to move from paper-based to electronic-based, as well as standardized courtroom infrastructure nationwide, by integrating technology into court processes and procedures.[17]
From the foregoing, it is pertinent to reiterate that the ODR mechanism simply supplements the existing ADR methods but rather by the use of technological infrastructures (gadgets) and internet resources and applications by way of “Skype, Zoom, Google Meet etc.” for a more timeous and comfortable means of disputes settlements between disputants irrespective of distance barriers. The most commonly used ODR techniques are; E-Mediation, E-Negotiation, E-Arbitration or a mix of the three, which assists lawyers by streamlining and expediting the dispute settlement processes especially for parties separated geographically.
MERITS OF ONLINE DISPUTES RESOLUTION (ODR)
- It is time saving
- It is less rancorous
- It is cost effective
- It gives room for better understanding and negotiations between disputants
- It encourages adaptation to the ever changing world of globalization by both the legal sector and the individual disputants
THE NEED FOR APPLICATION AND LEGAL IMPLEMENTATION OF ONLINE DISPUTES RESOLUTION (ODR) ON LEGAL PRACTICE
Unarguably, the basic aim of alternative disputes resolution is to facilitate timely enforcement of justice following the numerous queues occasioned by case adjournments and also the various geographical bottlenecks faced by litigants or disputants, hindering them from having swift settlement of their disputes. Thus, the application of ODR technologies in Nigerian legal practice can offer a plethora of benefits because research has shown that every year, there are over twenty-five (25) million legal issues[18] and according to the Hague Institution for Innovation of Law, only roughly forty percent of these issues are successfully resolved.[19] Thus, the provision of legal backing and implementation of ODR can reduce to the barest minimum, these rising delays by one or more of its viable internet methods and resources. An emulative example of an ODR platform is one in the U.S known as Modria, a software which has been able to resolve over 400 million disputes between online buyers and sellers on eBay, which is more than the entire lawsuits filed in the U.S Courts system.[20]
According to Abdulfatai Sambo, an Associate Professor, a lawyer and an expert in comparative constitutional law and legal research methodology in the department of public law, University of Ilorin, virtual court trial has many benefits such as correctional service decongestion, quick dispensation of justice, and lots more.[21] While speaking to THE GUARDIAN about the legality of virtual trials in Nigeria also, Isaac Attah Ogeze, a lawyer was of the view that; “Our apex court has held very commendably that virtual trials are not in violation of the Evidence Act 2011. If through the use of Skype and zooming technology, meetings and interviews are held, thus, blurring national boundaries and time zones, it will be anachronistic, retrogressive and anti-productive not to applaud this innovation. With the unbelievable growth of computer and mobile phone technology, and also given Nigerians’ quixotic acclimatization, virtual trials are workable as this will help to nip in the bud, the usual excuse of a witness based abroad or unable to obtain a visa to appear physically for a trial.”[22] The lawyer, however, said the nod by the apex court was not all as there were challenges that needed to be overcome for proper operationalization of virtual trials.
Legal implementation is therefore required in order to;
- Make workable and enforceable, the decisions and agreements of parties to legal disputes where there exists grave impossibilities of their physical presence.
- Cater for unplanned periods of national or global discomforts such as pandemics or state of emergencies.
- Ease the job of lawyers by helping them adapt to the ever growing and changing world of tech. and globalization, this making their jobs worthwhile
- A thorough application of the ODR techniques is also required to help Nigeria join the list of ever developing countries by adapting to the continuously changing face of globalization all over the world..
CONCLUSION
The very essence of the Online Disputes Resolution mechanisms in today’s world can never be overemphasized because the world has become a contemporary world of communication and endless interactions amongst people following the effects of trade leading to the exchange of goods and services as well as other interactions unrelated to trade (such as marriage conflicts etc). These dealings have thus, led to various disputes which have come to stay as part and parcel of our systems, begging for a faster, easier and less rancorous means of settlements which technology and its varying network operations has brought about through one or more of the Online Disputes Resolution (ODR) techniques. Hence, its is advised that considerations be put in place for a proper and more effective legal implementation of ODR into the legal practice of Nigeria as this would ensure a “step forward” move in embracing globalization which many other countries have already been implementing.
RECOMMENDATIONS
Following the day-to-day continuity of globalization, we can all agree that technology has brought so much ease to our daily lives and as such, we ought to get friendly with it in order to stay relevant in the face of the developed world. Therefore, for the concept and procedures of Online Disputes Resolution (ODR) to be of any legal implementation, effect and workability, I recommend that;
- The Courts have to make provisions for proper, workable, up-to-date as well as top notch internet facilities for proper Skype and Zoom operations.
- There should be provisions proper electricity for effective operations because continuous and excessive power outages (which is a basic feature of the country today) will render the process useless and of no expected effect.
- Thirdly, legal practitioners must ensure financial capacity and stability and also be duly prepared to garner the technical know-how in order to be capable of fully adapting to changing technologies of the world because there may come instances where these lawyers will be required to conduct these ODR processes from the comfort of their offices or homes.
- The disputants (litigants) are not left out as they ought to also be educated on the need to acquire the basic know-how of these technological platforms. This is to ensure that they are lost in the process because there may also be cases where they would need to attend these cases from the comforts of their homes or offices.
REFERENCES
[1] Constitution of the Federal Republic of Nigeria 1999 (as amended)
[2] Orojo and Ajomo, Law and Practice of Arbitration and Conciliation in Nigeria (Mbeyi & Associate 1999) 4.
[3] Hasley Milten Kynes General NHS Trust (2004) EWCA Civ 576.
[4] Obi Okoye, Law In Practice In Nigeria: Professional Ethics And Skills. (Snaap Press Nigeria Limited 2011) 442.
[5] Arbitration and Conciliation Act Cap. A18 Laws of the Federation of Nigeria 2004.
[6] Lagos State Arbitration Law 2009, s.2.
[7] Obi Okoye, Law In Practice In Nigeria: Professional Ethics And Skills. (Snaap Press Nigeria Limited 2011) 446.
[8] Noone M., Mediation: Essential Legal Skills, (London, Cavendish Publishing Limited 1996) 31.
[9] Brayne H. and Grimes R.: The Legal Skills Book; 2nd Ed. (London, Butterworth 1998) 395.
[10] https://en.m.wikipedia.org/wiki/Conciliation
[11] Part II of the Act.
[12] Section 42(3) ibid.
[13] Halpern A., Negotiating Skills, (London, Blackstone Press Limited 1992) 3.
[14] https://www.oecd.org/digital/consumer/1878940.pdf.
[15] National Centre for Technology and Disputes Resolution, Standards of Practice. available at <www.odr.info>.
[16] https://www.aboutrsi.org/special-topics/online-dispute-resolution
[17]https://guardian.ng/features/law/examining-the-workability-of-virtual-trial-in-nigeria/
[18]https://omaplex.com.ng/online-dispute-resolution-in-nigeria-trends-and-legal-prospects/#_ftn.
[19] Hague Institute for Innovation in Law, Justice Needs and Satisfaction in Nigeria. 2018.
[20] Feranmi Adeoye, The Practical Application of Online Disputes Resolution (ODR) Technology to Modern Law Practice in Nigeria vis-a-vis the Nigerian Legal System. A Legal Tech Analysis 1. 3.
[21]https://guardian.ng/features/law/examining-the-workability-of-virtual-trial-in-nigeria/
[22]https://guardian.ng/features/law/examining-the-workability-of-virtual-trial-in-nigeria/
About the Author
Rachel Udoinyang is a fresh law graduate of the University of Uyo, Akwa Ibom State. She is a seasoned legal researcher and writer, motivational writer and an Alternative Disputes Resolution (ADR) enthusiast who has written a host of legal and non legal articles. Feel free to contact her via her email address; racheludoinyang34@gmail.com
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