A CRITICAL APPRAISAL OF ALTERNATIVE DISPUTE RESOLUTION (ADR) MECHANISM IN RELATION TO ENVIRONMENTAL DISPUTES

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A CRITICAL APPRAISAL OF ALTERNATIVE DISPUTE RESOLUTION (ADR)
MECHANISM IN RELATION TO ENVIRONMENTAL DISPUTES
BY
IKPEME ELIZABETH JAMES
144586
A LONG ESSAY SUBMITTED TO THE FACULTY OF LAW UNIVERSITY OF
IBADAN IN PARTIAL FULFILMENT OF THE REQUIREMENTS OF THE AWARD OF
L.L.B DEGREE AUGUST 2013

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CERTIFICATION
I certify that this project was written by Ikpeme Elizabeth James of the faculty of law
University of Ibadan under the supervision of
__________________ _______________________________________
Date Supervisor

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DEDICATION
I dedicate this essay to the almighty GOD for the strength and grace he has granted me from
the beginning of this essay to the very end.

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ACKNOWLEDGEMENT
I will like to acknowledge the kind and supportive efforts of my parents Col & Mrs JJ Ikpeme
(RTD) for their financial support and advice given to me to facilitate in making this project a
reality and also my supervisor Dr P.C Obutte for his patience, understanding and corrections
during the writing of this essay and not forgetting my brother Moses James Ikpeme for his
prayers and wonderful advices which really made a difference for me. To all those who still
contributed in their little way to this essay I say thank you and God bless you all.

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TABLE OF CONTENTS
CHAPTER 1 NATURE AND SCOPE ALTERNATIVE DISPUTE RESOLUTION
1.1 MEDIATION CONCILIATION AND OTHER ADR OPTIONS…………………1
1.1.1 Mediation……………………………………………………………………......4
1.1.2 Common Features of Mediation………………………………………………...5
1.1.3 Classification of Mediation……………………………………………………...6
1.1.4 Conciliation……………………………………………………………………...8
1.1.5 Functions of a Commissioner……………………………………………………9
1.1.6 Advantages of Negotiation……………………………………………………...9
1.1.7 Negotiation……………………………………………………………………..10
1.1.8 Types of Negotiation…………………………………………………………...10
1.1.9 Arbitration……………………………………………………………………...12
1.1.10 Features and Essentials of Arbitration………………………………………….13
1.1.11 Types of Arbitration…………………………………………………………….14
1.1.12 Advantages of arbitration……………………………………………………….16
1.1.13 Mini-trial………………………………………………………………………...17
1.1.14 Pre-trial Conference……………………………………………………………..17
1.1.15 Summary jury trial……………………………………………………………….18
1.2 ROLE OF THE THIRD PARTY……………………………………………………19
CHAPTER 2 ADR AND THE CIVIL JUSTICE SYSTEM……………………………20
2.0 Negative aspect of Adversarial system……………………………………………...20
2.1 ENFORCEABILITY OF DISPUTE RESOLUTION CLAUSES………………….26
2.1.1 Challenges to Enforcing Dispute Resolution Clauses……………………………..29
2.1.2 Elements of an Enforceable Clause……………………………………………..…33
2.2 REFERRAL TO MEDIATION OR CONCILIATION AFTER LITIGATION HAS
BEGUN………………………………………………………………………………….34
2.2.1 Voluntary Mediation……………………………………………………………….35
2.2.2 Statutory Mandatory Limitation……………………………………………………35
2.3 LIMITATION CLAUSE…………………………………………………………….36
2.4 ENFORCEABILITY OF AGREEMENTS………………………………………….39
CHAPTER 3 HISTORICAL FRAMEWORK AND RISE OF ENVIRONMENTAL
CONCERN……………………………………………………………………………….47
3.1 ADR, ENVIRONMENTAL LITIGATION AND DISPUTE RESOLUTIONS…….51

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3.1.1 Environmental Litigation…………………………………………………………...51
3.1.2 Dispute Resolution…………………………………………………………………..52
3.1.3 Demerits of ADR…………………………………………………………………....59
3.2 ADR CLAUSES IN ENVIRONMENTAL AGREEMENTS………………………...62
3.2.1 Types of Resolution Clauses………………………………………………………....62
3.2.2 Model ADR Clauses………………………………………………………………….62
3.3 ENFORECEABILITY OF ENVIRONMENTAL AGREEMENTS………………......73
3.3.1 Structure for Cooperation in Environmental Law Enforcement……………………..73
3.3.2 The Enforcement of other International (Environmental) Agreements………………74
3.3.3 Experience of Enforcement with Regard to Hazardous Waste and Ozone Depleting
Substances…………………………………………………………………………………..77
CHAPTER 4 POTENTIALS AND DIFFICULTIES OF THE ADR SYSTEM IN SOLVING
ENVIRONMENTAL DISPUTES………………………………………………………….84
4.1 ASSESSING THE SUCCESS RATE OF ADR…………………………………….......86
4.1.1 Examples of ADR Successes in the United States…………………………………….87
4.2 INTERNATIONAL FRAMEWORK FOR ADR……………………………………....97
4.3 THE SHORTCOMINGS OF ADR…………………………………………………….105
4.4 THE FUTURE OF ADR IN ENVIRONMENTAL DISPUTE: NATIONAL AND
INTERNATIONAL CONSIDERATIONS………………………………………………..108
4.4.1 International perspective…………………………………………………………...…108
CAPTER 5 CONCLUSION AND RECOMMENDATION
5.1 CONCLUSION…………………………………………………………………….133
5.2 RECOMMENDATION……………………………………………………………134

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Table of Cases
ACCC v LUX [2001] FCA 600 (24 May 2001)
ACCC v Callegen [2002] FCA 1134 (13 September 2002)
Amerisure Mut Ins. Co v carey transp., Inc, 518 F Supps 2d 888, 899
Barrett v Qld Newspapers Pty Ltd & Brennan & Ruddiman [1999] QDC 150 (19 July)
Baulderstone Hornibrook v Dare Sutton Clark & Ors [2000] SASC 159 (7 June 2000)
Claridge House One Condominium Ass‘n. v Beach Plum Properties, 2006 WL 290439
Cumberland & York Distribs., 2002 U.S. Dist. LEXIS 1962, at 11–12
Cott Uk Ltd v Barber Ltd (1997) 3 All ER 540.
DeValk Lincoln Mercury Inc., 811 F.2d at 355
Firebrace v Indigenous Land Corporation [2000] FCA 1257 (5 September 2000)
Golding v Floyd, 539 S.E.2d 735 (Va. 2001)
Halifax Financial Services Ltd v Intuitive System Ltd (1999) 1 All ER (Comm) 303 Harkader
v Farrar Oil Co., 2005 WL 1252379 (Ky. App. 2005)
Hillas & Co. v. Arcos Ltd (1932) 38 Com. Case no. 23
Hopcroft v Olsen [1998] SASC 7009 (21 Dec 1998)
In re Atl. Pipe Corp., 304 F.3d at 144
Kemiron Atl. V. Agualem Int’l, Inc., 290 F.3d 1289 1291 11th
2002
Kilthistle No 6 Pty Ltd et al v Austwide Homes Pty Ltd and Ors [1997] FCA 1383
(10December 1997)
Morrow v Chinadotcom Corp (2001)
Pitt v PHH Asset Management (1993) 4 All ER 961,966-968
Scott v Avery (1865) 10 ER 1121
Shepherd Construction Ltd v Pinsent Masons LLP 2012 EWHC 43
Thakrar v Ciro Citterio Menswear plc (in administration) [2002] EWHC 1975 (Ch)
Wolford v Miles (1992) 1 All ER 453,453-455

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Table of Statutes
County Court Rules of Procedure in Civil Proceedings 1999 Rule 34A.21US
County Court Rules of Procedure in Civil Proceedings 1999 s 34A.22
Conciliation and Arbitration Act Cap 18 LFN 2004
District Court Act 75 1967 (Qld) Ss 97-98
District Court Act 1991 (SA) s 32(1)
Environment, Resources and Development Court Act 1993 (SA) s 28B (1)
Federal Court of Australia Act 1976 s 53A
Federal Magistrates Act 1999 s 34
Law & Business Quarterly, Vol. 6 No. 2
Limitations Act 1980
Magistrates Court Act 1989 s 108 US
Magistrates Court Act 1991 (SA) s 27(1)
NESREA Act Cap A635 2007
Supreme Court Rules 1987 41.12 and 48.13
Supreme Court of Queensland Act 1991 Ss 102-103
Supreme Court Act 1935 (SA) s 65)
Supreme Court Rules Chapter I – General Rules of Procedure in Civil Proceedings 1996
Rule 50.07 US
Victorian Civil and Administrative Tribunal Act 1998 s 88) US
1999 Constitution of the Federal Republic of Nigeria

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ABBREVIATION
AC: Appeal Cases
ACAS: Advisory Conciliatory and Arbitration Service
ADR: Alternative Dispute Resolution
Ch: chancery
UNCITRAL: United Nations Commission on International Trade Law
CBD: Convention on Biodiversity
CCMA: Commission for Conciliation Mediation and Arbitration
CEC: Commission for Environmental Cooperation
CERCLA: Comprehensive Environmental Response Compensation and Liability Act
EEO: Equal Employment Opportunity Commission
EC: European Commission
ET: employment Tribunal
EU: European Union
EPA: Environmental Protection Agency
FMCS: Federal Mediation and Conciliation Service
IMPEL: implementation and Enforcement of Environmental Law
LMDC: Lagos Multi door Court house
OALJ: Office of Administrative Law Judges
OAU: Organisation of African Unity
TFS: Trans Frontier Shipment
TPEAC: Transportation Permit Efficiency and Accountability Committee
UN: United Nations
UNEP: University of National Distance Education
UNEP: United Nations Educational Program
UNCED: United Nations Conference on Environment and Development
VCAT: The Victorian Supreme Court, County Court and the Civil and Administrative
Tribunal

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ABSTRACT
The Alternative Dispute Resolution mechanism has served as a tool for conflict resolution in
different spheres of the economy worldwide through the process of negotiation, mediation,
arbitration, conciliation and mini-trial. It has become an acceptable and certainly an
unavoidable part of the global world.
ADR is increasing in recognition in commercial disputes globally due to its wide range of
options available to an aggrieved party. However, the mechanism is beginning to be
introduced gradually into the oil producing regions of Nigeria, Where oil spillages or oil
pollution creates a lot of environmental disputes among the oil companies and various
communities.
However, aggrieved parties are now free to choose from the various options available and
avoid the rigours of court room litigation. With this the ADR mechanism if fully accepted
will open a lot of opportunities for other sectors of the economy in Nigeria, as professionals
from the banking, medical and maritime sectors will be willing to embrace the technique and
have speedy results than go through the stress of court processes and trial adjournments.
The ADR mechanism allows for the free flow of justice to any injured party through speedy
trials and out of court settlements, thereby making it a system Nigeria as a whole must join
the global world in developing.
This paper tends to look at the function of ADR in the civil justice system as well as its
importance in the enforceability of dispute resolution clauses. Although ADR is coupled with
some advantages and disadvantages, its future is a determinate factor to its continued
existence in Nigeria and the world at large.
This work tends to limit itself to the civil justice system as aforementioned and environmental
dispute using the various ADR option present.

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CHAPTER 1: SCOPE AND DEFINITION OF THE TERM ADR
Alternative dispute resolution is one of the oldest forms of non-adversarial justice.1
The
modern ADR movement emerged in the United States in the 1960s and 1970s and other parts
of the world. Since then, ADR has been enthusiastically supported, criticised, modified,
regulated and in many places, accepted as the legitimate part of the formal legal system. The
institutionalisation of the ADR processes suggests that ADR exists at a high level of maturity
within the justice system and has the potential to provide a guide for the amalgamation of
recent non-adversarial practices into the legal system.2
In Nigeria, alternative dispute resolution (ADR) with options such as arbitration,
mediation, conciliation, or mini-trial is a procedure disputes by means other than litigation.
Given the time value of money, length of time and cost involved in judicial litigation, the
administration of civil justice has remained on the verge of collapse for so long due to the
delay in conclusion of trials. The length of time to conclude cases at the High court to the
Supreme Court is 11-12 years. Cases go on for as long as a minimum of four years at every
level high courts and appeal courts. The delay can be attributed to the laziness of the counsel
who file frivolous applications and seek unnecessary adjournment on flimsy excuses as a way
of frustrating the opponents. Also the attitudes of some judges to case management and
administration of justice are equally discouraging3
ADR being a collection of processes used for the purpose of resolving disputes4
, offers a
wide range of benefits in terms of cost saving, privacy, freedom of choice of venue, choice of
law, preservation of good business and personal relations, finality of decision, speed,
flexibility of procedure, confidentiality, autonomy of parties in selecting the arbitral tribunal
at the relative speed of the economy.5
Some reasons for the recent increase in the use of ADR globally can be found in the
opposition to the traditional adversarial legal system. A bulk of the debates surrounding ADR
has focused on whether settlement is more desirable than litigation. Most of the reasons for
1
MichaelKing, Ariel Freiberg, Becky Batagol and Ross Hyams, Non- Adversarial Justice, Federation Press (2009)
pg 88
2
ibid
3
Amokaye G. Oludayo, Environmental Law and Practice in Nigeria. Lagos: University of Lagos Press, 2004 pg
679
4
What is ADR available at CDC/ATSDR Policy on Alternative Dispute Resolution retrieved 18th
June 2013
5
Id 3

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preferring ADR over litigation amount to an evaluation of the adversarial nature of the civil
justice system. ADR is seen as an informal, non adversarial substitute for adversarial court
proceedings. Many scholars have argued that the premise of this debate, where litigation and
ADR are presented as polar opposites is a “false dichotomy” because, “in reality, neither
litigation nor mediation prevails in the way ordinary citizens handle disputes. Therefore it is
important to see the full diversity of dispute resolution methods and to think about the place
of lawyers, of litigation and of ADR in that landscape”.6
In response to both the increased use and criticisms of ADR, informal processes have
changed. While there is still much to be done in the field, it is encouraging to see greater
attention being paid to the attainment of higher quality ADR processes and fairer outcomes.
Constant reforms to the ADR system must be supported by high quality, independent
research and evaluation.7
As the ADR industry matures, it has moved to a level of professionalism and standardisation.
In Australia dispute resolution practitioners are progressively being regulated in a manner
similar to that of other professions such as lawyers, psychologists, doctors and social
workers. Standards can be used to enhance the quality of the ADR practice, to outline the role
of the ADR practitioners, to define minimum practitioner competence levels, to facilitate
consumer education about ADR, to improve the credibility of the ADR service as well as to
build consumer confidence thereby outlining and adjusting client and service provider
expectations.8
In the past ADR was the term which described a group of processes through which disputes
and conflicts were resolved outside of formal litigation procedures. At present it is perhaps
more accurate to include in these processes some aspects of litigation, such as case
management. In any case primarily in the USA, ADR has developed as an adjunct to the legal
systems, rather than in direct contrast to litigation. ADR covers a variety of devices which are
not static. Indeed, they continue to expand as society gains a better appreciation of the nature
of disputes, so from the traditional methods of dispute resolution9
. Society is reorganising
more and more of those processes which attempt, first and foremost to reconcile the interest
6
Astor, Hillary and Prof Christine Chinkin , dispute resolution in Australia 2nd
ed., Lexis Nexis Butterworths,
2002
7
National Alternative Dispute Resolution Advisory Council, 2003 Pg 4
8
Ibid
9
Among these are the use force and coercion, avoidance, compromise and splitting the difference.

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of the parties. A rights determination and a power resolution are involved only as a fall back
in case of a failure in reconciling interests.10
ADR has been defined by the National Alternative Dispute Resolution Advisory Council as
“an umbrella term for processes, other than judicial determination, in which an impartial
person assists those in a dispute to resolve the issues between them…. Some also use the term
ADR to include approaches that enable parties to prevent or manage their own disputes
without outside assistance”.11
ADR, processes have been classified into facilitative, advisory, determinative and hybrid
processes12
distinguishable by the varied role played by the dispute resolution practitioner.
Facilitative processes, such as mediation and negotiation, involve the practitioner providing a
process for the parties to resolve their own issue, but the practitioner would not usually give
advice on the content or outcome of the dispute. In advisory processes such as conciliation
and expert appraisal, the practitioner “considers and appraises the dispute and dispute and
provides of the advice as to the facts of the dispute, the law and in some cases, possible or
desirable outcomes”.13
In determinative processes, the practitioner evaluates the dispute after
hearing evidence from the parties and makes a decision on the outcome. Determinative
processes include arbitration and private judging. Hybrid processes involve the dispute
resolution practitioner playing multiple roles, either using one ADR process before moving to
another or combining two roles within a single process, such as facilitation and advice-
giving, which are both part of conciliation.14
The understandings of ADR are not universal. For instance, in Australia it has been pointed
out those Western definitions of ADR processes such as “mediation” do not necessarily
match Australia’s indigenous conceptions.15
1.0 MEDIATION, CONCILATION AND OTHER ADR OPTIONS
10
Albert Fiadjoe’s, Alternative Dispute Resolution: A developing world perspective. 1ed, Cavendish publishers
(2004) pg 19
11
Id 7
12
Ibid
13
Ibid
14
ibid
15
Ibid

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The ADR mechanism is made of a wide range of options for aggrieved member of the society
to choose from, such as: mediation, arbitration, conciliation, negotiation and mini-trial which
will be discussed in this essay.
1.1.1 MEDIATION
The term mediate is derived from the Latin word “mediare” which means “to be in the
middle”. Mediation is an important tool in resolving disputes especially parties do not agree
with themselves. It is a consensual process in which a neutral third party helps others to
negotiate a solution to a problem. The mediator has no authority to make binding decisions
for the disputants. What the mediator does is to use certain procedures, techniques and skills
to help the disputants to arrive at a resolution of their dispute agreement without
adjudication.16
It is important to note that mediation is an extension of negotiation.
Mediation normally occurs when the parties come to the realisation that they cannot resolve
their dispute on their own and that they need the help of a third party intervention. This
neutral third party, called a mediator, is essentially a facilitator only. Apart from that, all the
essentials of the negotiation process are preserved. The mediator has no role or function to
make a decision for the parties. This is the most important difference between a mediator and
an arbitrator. The role of an arbitrator is to consider the issues and then to make a decision
which determines the issues. An arbitrator’s decision is binding on the parties. It is important
to underscore the fact that the mediator’s duty goes beyond what facilitation may, at first
glance, suggest. It is the mediator’s duty to assist the parties to examine their mutual interests
and promote a lasting relationship. Indeed, the fact that the mediator lacks decision making
authority makes it attractive to disputants, who retain ultimate control of the outcome as the
decision makers. But this point should not mask the reality that mediators do have influence
and authority. In the words of CW Moore:
“The mediator’s authority, such as it is, resides in his or her personal credibility and
trustworthiness, expertise in enhancing the negotiation process, experience in handling
similar issues, ability to bring the parties together on the basis of their own interests, past
performance or reputation as a resource person, and in some cultures, his or her relationship
16
Albert Fiadjoe, Alternative Dispute Resolution: A developing world perspective, 1ed, Cavendish Publishers
(2004) Pg 22

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with the parties. Authority, or recognition of the right to influence the outcome of a dispute,
is granted by the parties themselves rather than by an external law, contract, or agency”.17
Mediation is a flexible process, subject only to a few essential rules. It may take a variety of
turns. For example, the mediator in a commercial dispute may adopt approaches which may
be very different from the mediator in a family law setting or from a labour or industrial
relations setting. That notwithstanding, there are certain fundamental principles and core
skills associated with being a mediator. 18
1.1.2 Common Features of Mediation
(a) Neutrality of the mediator. The neutrality and impartiality of the mediator are of
fundamental importance to this process.
(b) Nature of the mediator’s authority. The mediator has no authority to impose a settlement
on the disputants. The mediator is only a facilitator of the process, whose primary role is to
assist the disputants to settle their differences through a negotiated agreement. Mediation
involves some element of facilitation and assistance so that the disputants can negotiate with
one another.
(c) Consensual resolution. Mediation is consensual. So, the only binding outcome of
mediation is one with which all the parties agree.
(d) Maximisation of interests. The objective of a mediated settlement, unlike an adversarial
trial, is to maximise the interests of all parties.
(e) Provision of secure environment. It is the mediator’s responsibility to create conditions,
which are conducive to discussion and the exploration of settlement options and possibilities.
This applies not only to the physical arrangements and the ambience, but also to ground rules
regulating the process.
(f) Offer of confidentiality. Mediation is, by its very nature, a private and confidential
process. The mediator must first offer confidentiality to the parties, who may also agree to
mutual confidentiality.
(g) Inability to offer independent advice. Because in mediation the parties are responsible for
their own decisions, a mediator is not supposed to offer advice to the parties. Where
appropriate, the disputants may take advice from independent sources, but they may not do so
from the mediator.
17
Joyce Hocker & William Wilmot Interpersonal conflict 6th
ed, Mc Graw Hill publishers 2000
18
Albert Fiadjoe, Alternative Dispute Resolution: A developing world perspective 1 ed, Cavendish Publishers
2004, pg 60

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(h) Empowerment of the parties: This enables the parties to make their own decisions, with
little dependence on third party advisers.
(I) Maintenance of relationships: The containment of escalation in a controlled atmosphere
promotes communications between the parties and aids the maintenance of relationships.
These basic features also reflect some of the main advantages claimed for mediation over
other forms of dispute resolution, especially litigation. Mediation is faster, cheaper and more
satisfying to the parties than litigation. The process is private and confidential, consensual
and non-adversarial. It employs co-operative, problem solving approaches and enhances
communication between the parties. Most importantly, the parties take responsibility for
crafting creative solutions to their problem.19
1.1.3 CLASSIFICATION OF MEDIATION
Mediation can be classified as being rights-based or interests-based.
I. Rights-based mediation
A rights-based mediation occurs where the parties to a dispute want a neutral third party to
provide them with an independent assessment of the likely outcome of the case, if there is no
settlement at the mediation. The mediator provides an assessment of the legal and equitable
rights of the parties.
It is then left to the parties to choose to accept or reject or modify the assessment provided. It
must be obvious that, in a rights-based mediation, only a person with some real expertise in
the substantive area of the dispute may be chosen to provide the assessment of rights. It is not
uncommon for the mediator to use their personality and expertise to browbeat one party to
change their position and adopt the mediator’s proposal. For this reason, rights-based
mediation is sometimes referred to as ‘muscle mediation’.
A rights-based mediation may be employed where the parties believe that one side has an
unrealistic assessment of the outcome of the case, and where that position could be
influenced by the opinion of the mediator. Also, some lawyers employ rights based mediation
where they believe that their own clients have an unrealistic assessment of their case and are
intransigent.
II. Interests-based mediation
19
ibid

18
This is the more popular form of mediation. Indeed, when people talk of mediation, it is this
type of process to which they refer. This type of mediation focuses on the underlying
interests, goals and needs of the parties, rather than on the perceived outcome of the
litigation. This approach to mediation is, again, attributed to the Harvard Negotiating Team.20
In an interests-based mediation, the mediator attempts to determine the interests behind the
positions adopted by the parties, encourages them to generate options that satisfy those
interests and helps them to choose their own solutions. To the extent that mediation brings
together people, their problem and a process of resolving those problems, the interests-based
mediator controls the process of the mediation and assists the parties and their advisors to
resolve the substantive issues. The mediator need not be an expert in the substantive areas of
the dispute. This is because the interests-based mediator is supposed to be a process expert
who can leave the substantive issues to the parties, who would normally have a greater
familiarity with the facts than the mediator.
Mediation can be commenced in a variety of ways; the most common form is by agreement
of the parties. That agreement may contain the mechanism for the selection of a mediator.
Failing that, it is not unusual to have an independent organisation choose the mediator for the
parties.
A second way to get a mediation started is by providing for the process in a mediation clause
within an existing agreement. Such a clause would stipulate that the parties agree to attempt
mediation prior to engaging in a binding form of dispute resolution. When the dispute arises,
the parties will then be required to follow the procedures set out in the contract.
Yet another way to get to mediation is to be required by the law to attend a mediation session.
In that case, the mediator is usually chosen for the parties by the law. An example may be
found in section 8 of the Family Law Act of Barbados, 21
provides;
Where an application for the dissolution of a marriage discloses that the parties have
been married for less than 2 years preceding the date of the filing of the application,
the court shall not hear the proceedings unless the court is satisfied that:
a) The parties have considered reconciliation with the assistance of a marriage
counsellor, an approved marriage counselling organisation, or some suitable
person or organisation nominated by the Registrar or other appropriate officer; it
thus makes the exhaustion of some form of a mediation process a pre-condition
for pursuing litigation. Where the parties come to mediation voluntarily and by a
20
Roger Fisher and William L. Ury, Getting to Yes, Penguin Group Publishers, 1991
21
1985 (Cap 214)

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consensual process, it is reasonable to provide the terms and conditions in a
mediation agreement.
When it comes to a mediation agreement, there is no standard mediation agreement, as the
parties are free to adjust the terms to suit their interests and the nature of the issues to be
mediated. It is advisable that certain basic ideas be reflected in the mediation agreement.
They represent the basic rules of the game and speak as to the legal protections that may be
afforded to a mediator and his notes.
1.1.4 CONCILIATION
The word “conciliation” connotes a wide range of processes, including complaints handling
and formal, unstructured discussions aimed at dispute resolution.
The 2002 UNCITRAL Model Law on International Commercial Conciliation defines
conciliation as:
“… a process, whether referred to by the expression conciliation, mediation or an expression
of similar import, whereby parties request a third person or persons (the conciliator) to assist
them in their attempt to reach an amicable settlement of their dispute arising out of or relating
to a contractual or other legal relationship. The conciliator does not have the authority to
impose upon the parties a solution to the dispute”.22
West’s Encyclopaedia of American Law23
defines conciliation as the process of adjusting or
settling disputes in a friendly manner through extra judicial means. Conciliation means
bringing two opposing sides together to reach a compromise in an attempt to avoid taking a
case to trial.
Conciliation comes in to play when negotiation fails; it offers parties another opportunity to
reach an out of court settlement. Conciliation can be seen as an alternative to arbitration or
the ground work towards arbitration in the event that conciliation fails. Agreements reached
by conciliation are generally recognised by the parties. Though not directly enforceable
against the will of one of the parties, unlike court judgements and arbitral decisions,
conciliation agreements may be upheld in court or in a summary judgement for execution
against the defaulting party. Conciliation can prove to be the ideal way to settle disputes
when parties would respect the outcome of the conciliation. Because of the non-binding
nature of conciliation, a party does not compromise its position because it agrees to the
22
United Nations Commission on International Trade Law, Model Law on International Commercial Conciliation
with Guide to Enactment and Use, Article 4 ( United Nations 2002) retrieved 19th
June 2013
23
Edition 2, Published October 2004

20
transaction; the party is not judged by anyone. It is more comforting to perform the agreed
result without being forced by the menace of a writ of execution which would be the case
with an arbitral sentence. An essential factor for success in the conciliation proceedings is the
personal appearance of the parties or their representatives by someone having full power to
reach agreement. The parties’ representatives usually are company officials. Counsels of their
choice without any restrictions may also assist the parties.
Conciliation may bring about one of the three following results;
The first result is the settlement of the disputes. Here the conciliator notes in his minutes the
agreements reached when both the conciliator and the parties sign it.
The second result is to establish the basis for an agreement. Here, the conciliator gives
recommendations to the parties, on which they are asked to settle the dispute within a certain
period of time.
The third result is to report the failure of the attempted conciliation. If the dispute is not
settled the parties remain free to submit it to either to arbitration or any competent court if
they are neither bound by a contractual arbitration clause nor have an agreement to arbitrate
after the dispute. However in the event that the conciliation fails, nothing said or written
during conciliation proceeding may in any way jeopardise the rights of the parties in future
arbitral or judicial proceedings. In addition, a person who has served as a conciliator may not
be appointed as arbitrator for the same dispute. The greatest drawback for conciliation is that
the party who suggest conciliation might have ulterior motives, such as delaying an eventual
arbitration.24
In India, a commissioner acts as a conciliator during conciliation proceedings
He is embedded with the following functions:
1.1.5 FUNCTIONS OF A COMMISSIONER
(a) Determining which process the hearing could follow, it may include mediation,
facilitation, or making recommendations in the form of an advisory award.
(b) A commissioner may subpoena persons and documents.
(c) The commissioner‘s role is to try and resolve the dispute within 30 days of it being
referred to the CCMA.25
1.1.6 Advantages of Conciliation
24
Amokaye G. Oludayo, Environmental law and Practise in Nigeria. Lagos: University of Lagos Press 2004
25
The Commission for Conciliation, Mediation and Arbitration

21
The advantage of conciliation is that it extends the negotiation process and allows for
settlement between the parties: for example, where a procedure requires that conciliation be
attempted before industrial action can be undertaken, time is allowed for both parties to “cool
off”, for approach each other in a friendlier manner whilst seriously attempting to settle
before engaging in industrial action which might eventually destroy the relationship.26
1.1.7 NEGOTIATION
Negotiation is a consensual bargaining process, without a third party intervention, whereby
the parties to a dispute attempt to reach agreement on a disputed matter or potentially
disputed matter. It also involves discussion or dealings about a matter, with a view to
reconciling differences and establishing areas of agreement, settlement or compromise that
would be mutually beneficial to the parties or that would satisfy the aspiration of each party
to the negotiation.27
Roger Fisher and William Ury28
define negotiation as a ‘back-and-forth communication
designed to reach an agreement when you and the other side have some interests that are
shared and others that are opposed’. It is an interactive process which covers shared interests,
common concerns and those in conflict. It may be used as a tool to handle a multiple variety
of disputes. A negotiation may be about a single issue or a multiple set of issues, be personal
or impersonal, one off or otherwise, involve a single party or multiple parties, be distributive
or zero sum, representative or for oneself.
1.1.8 TYPES OF NEGOTIATION
Negotiation can be divided into three strategies; competitive, co-operative and principled
approaches.
i. Competitive/hard Negotiating Style
As the name suggests, a competitive style is tough, bullying, un- co-operative, hard and
inflexible. It makes unrealistic demands and very few concessions. It accuses bluffs, misleads
and tries to outmanoeuvre the other side. It is a strategy which works on the psychology of
the other party and tries to wear them down. At the bottom of it, it is designed to achieve
26
ibid
27
Amokaye G. Oludayo, Environmental Law and Practice in Nigeria. Lagos; University of Lagos Press 2004 Pg
682
28
Roger Fisher and William L. Urys, Getting to Yes, Penguin Group Publishers, 1991

22
victory at the expense of the other side. These observations notwithstanding, it is a style that
may have merits and demerits such as;
Advantages
(a) Walking away with a better substantive deal;
(b) Taking the initiative in negotiation;
(c) Not yielding to manipulation from the other side; and
(d) Gaining a tough reputation
Disadvantages
(a) Prevention from reaching a mutually beneficial deal.
(b) Failing to take advantage of the full range of possibilities on the table.
(c) Creation of misunderstandings.
(d) Infliction of damage to relationships.
(e) Non-sustainability of solutions arrived at.
(f) Poisoning the atmosphere for future negotiations.
ii. Co-operative/soft Negotiating Style
A co-operative style, on the other hand, is friendly, courteous and concessionary. It focuses
on building trust and promoting relationships. It is tactful and conciliatory, always trying to
reach a deal. It shares information and appeals to the reasonable instincts of the other side. Its
primary objective is to achieve some sort of fair agreement.
1. Advantages
(a) Reaching a conclusion quickly.
(b) Reaching a conclusion which is fair.
(c) Building long-term relationships.
(d) Building up a good reputation and image.
2. Disadvantages
(a) The failure to get a good deal.
(b) The possibility of manipulation by the other side.
(c) The acquisition of a reputation for being soft.
(d) A reluctance to walk away from the table.
iii. Principled/problem solving Negotiation Style
The parties can reach agreement by explaining each other’s underlying interests and creating
options for mutual gain. The point of differentiation is that both use different standards to

23
measure the outcome reached. The problem solving strategy tries to measure the settlement
against the real interests of the parties, while the principled strategy measures the results by
reference to some objective standard which may be external to the parties. There is no need to
be detained by this very fine dividing line.
A great deal of emphasis is placed on the ‘principles’ which underpin ‘principled
negotiation’. Fisher and Ury have claimed that it is an all-purpose strategy that overcomes the
disadvantages in the two other strategies. The justification for it, they say, is that: Principled
negotiation can be used whether there is one issue or several; two parties or many; whether
there is a prescribed ritual, as in collective bargaining, or an impromptu free-for-all, as in
talking with hijackers. The method applies whether the other side is more experienced or less,
a hard bar gainer or a friendly one. Principled negotiation is an all-purpose strategy.29
Negotiation as a whole must be approached with the requisite tact, candour and transparency
in order for the parties to resolve their differences. A negotiation conducted in an atmosphere
of honesty, transparency and fairness would produce an outcome that will be mutually
satisfactory to both parties.30
1.1.9 ARBITRATION
The Arbitration and Conciliation Act31
, provides for arbitration in the Nigerian legal system.
It thus states that; “ A decree to provide a unified legal frame work for the fair and official
settlement of commercial disputes by arbitration and conciliation and to make applicable the
convention for the Recognition and Enforcement of Arbitral Awards (New York convention)
to any award made in Nigeria or in any contracting state arising out of International
Commercial Arbitration”. 32
According to Black’s Law Dictionary33
; Arbitration is a method of dispute resolution
involving one or more neutral third parties who are usually agreed to by the disputing parties
and whose decision is binding.
29
ibid
30
Amokaye G. Oludayo, Environmental Law and Practice in Nigeria. Lagos, University of Lagos Press 2004 Pg
682
31
Cap A18 Laws of the Federation 2004
32
ibid
33
6th
ed, 1991

24
Orojo and Ojomo defined arbitration as a procedure for the settlement of disputes under
which the parties agree to be bound by the decision of an arbitrator(s) whose decision is
general, final and binding on both parties.
Arbitration is a process by which parties voluntarily refer their disputes to an impartial third
person, an arbitrator selected by them for a decision based on the evidence and arguments to
be presented before the arbitration tribunal.34
A good definition of arbitration is that it is “a consensual system of judicature directed to the
resolution of commercial disputes in private”.35
An arbitrator is described as “a disinterested person, to whose judgment and decision
matters in dispute are referred”.36
NADRAC defines arbitration as “a process in which the parties to a dispute present
arguments and evidence to a dispute resolution practitioner (the arbitrator) who makes a
determination”.37
The arbitrator is usually required to observe the rules of natural justice. The process is
considered consensual because parties agree to be bound by the arbitrator’s decision and
because they choose the arbitrator (or, in the very least, the process to select the arbitrator).
However, once they agree to participate, parties must abide by the determination of the
arbitrator (known as the “award”).38
1.1.10 Features and Essentials of Arbitration
(a) The arbitral process is consensual, based on an agreement between the parties.
(b) The parties have procedural freedom. This means that the parties may organise their
proceedings as they like and may choose an adversarial or inquisitorial procedure as
they like, or a mixture of the two.
(c) The arbitrators must be independent and impartial in accordance with codes of ethics
and conduct. A breach of that duty may result in the arbitrator being challenged and
eventually removed by the court, or by the arbitration institution concerned. It may
also lead to the annulment of the award.
(d) The arbitrator is the master of his own procedure.
34
Gabriel Wilner, Martin Domke, Larry Edmonson, Commercial Arbitration, 3rd
ed. Aspen Publishers (2006)
35
Rowland, PMB, Arbitration Law and Practice, 1998, ICAEW, P1
36
Albert Fiadjoe, Alternative Dispute Resolution: A developing world perspective 1ed, cavendish Publishers
2004 Pg 72
37
National Alternative Dispute Resolution Advisory Council, Australia 2003 , Pg 4.
38
Michael King, Arie Freiberg, Becky Batagol, Ross Hyams, Non- adversarial Justice, Federation Press (2009) Pg
88

25
(e) The arbitrator must act in accordance with the rules of natural justice.
(f) An arbitral award is binding upon the parties.
The sources of arbitration lie in a number of international convention international model
laws and model rules, and institutional rules such as those of the International Chamber of
Commerce (ICC) and the London Court of International Arbitration (LCIA). To these may be
added domestic legislation, reports of awards and academic writings.39
1.1.11 TYPES OF ARBITRATION
Arbitration can be divided into domestic and international arbitration
Domestic Arbitration: A domestic arbitration agreement means an arbitration which is not
an international arbitration agreement, while an international arbitration means an agreement
pursuant to which an arbitration is, or if commenced would be, international within the
meaning of Article 1(3) of the UNCITRAL Model Law. Thus, there is reference to the
UNCITRAL Model Law in the case of two important concepts.
The law applies to domestic arbitration agreements and to an arbitration pursuant to such an
agreement, except where a dispute has arisen and the parties have subsequently agreed in
writing that the agreement is, or is to be treated as an international agreement, or as an
international agreement to which the International Arbitration Act (if enacted) shall apply. It
also applies to Convention awards, that is, awards made in pursuance of an arbitration
agreement in a state or territory other than the state which has enacted this particular
legislation, and which is a party to the New York Convention. The law states that Convention
awards shall, subject to Part IV, are enforceable in the same manner as the award of an
arbitrator. ‘Court’ as used in the law means the High Court of the respective jurisdictions.40
i. INTERNATIONAL ARBITRATION: is a leading method for resolving disputes
arising from international commercial agreements and other international
relationships. As with arbitration generally, international arbitration is a creation of
contract, i.e., the parties' decision to submit disputes to binding resolution by one
or more arbitrator selected by or on behalf of the parties and applying adjudicatory
procedures, usually by including a provision for the arbitration of future disputes in
their contract. The practice of international arbitration has developed so as to allow
39
ibid
40
Albert fiadjoe Alternative dispute resolution: A developing world perspective 1st
ed Cavendish Publishers
2004 Pg 77

26
parties from different legal and cultural backgrounds to resolve their disputes,
generally without the formalities of their respective legal systems.41
a) Main Features of International Arbitration
International arbitration has enjoyed growing popularity with business and other users over
the past 50 years. There are a number of reasons that parties elect to have their international
disputes resolved through arbitration. These include the desire to avoid the uncertainties and
local practices associated with litigation in national courts, the desire to obtain a quicker,
more efficient decision, the relative enforceability of arbitration agreements and arbitral
awards (as contrasted with forum selection clauses and national court judgments), the
commercial expertise of arbitrators, the parties' freedom to select and design the arbitral
procedures, confidentiality and other benefits. International arbitration is sometimes
described as a hybrid form of dispute resolution, which permits parties broad flexibility in
designing arbitral procedures. For example, the (IBA)'s42
Rules on the Taking of Evidence in
International Commercial Arbitration.43
These rules adopt neither the common law
jurisdictions' broad disclosure procedures (Discovery), nor follow fully the civil law in
eliminating entirely the ability to engage in some disclosure-related practices. The IBA Rules
blend common and civil systems so that parties may narrowly tailor disclosure to the
agreement's particular subject matter.44
b) The Advantages of International Arbitration
For international commercial transactions, parties may face many different choices when it
comes to including a mechanism for resolving disputes arising under their contract. If they
are silent, they will be subject to the courts of wherever a disaffected party decides to initiate
legal proceedings and believes it can obtain jurisdiction over the other party. This may not sit
well with parties that need to know at the time of entering into their contract that their
contractual rights will be enforced. The alternative to silence is to specify a method of
binding dispute resolution, which can be either litigation before the domestic tribunal of one
41
Wikipedia, retrieved 19th
March 2013
42
International Bar Association
43
Revised in 2010
44
Georges Abi- Saab, the International Judicial Function and Stephen M. Schwebel, the Merits (and Demerits)
of International Adjudication and Arbitration. Lecture series of United Nations Advisory Library of International
Law

27
of the parties or arbitration. If the parties choose to resolve their disputes in the courts,
however, they may encounter difficulties.
The first is that they may be confined to choosing one or the others' courts, as the courts of a
third country may decline the invitation to devote their resources to deciding a dispute that
does not involve any of that country's citizens, companies, or national interests. An exception
to that rule is New York State, which will not entertain a forum non convenient motion when
the dispute concerns a contract that is worth one million dollars or more and in which the
parties included a choice-of-law clause calling for application of New York law. The second
and perhaps more significant difficulty, is that judicial decisions are not very "portable" in
that it is difficult and sometimes impossible to enforce a court decision in a country other
than the one in which it was rendered.
1.1.12 ADVANTAGES OF ARBITRATION
(a) The parties have a free choice to select a tribunal that fits the nature of their disputes.
As regards highly technical disputes, the parties may select an expert in that field as
the arbitrator.
(b) Arbitrations are held in private and they are also protected by the laws of privacy.
This could be crucially important in a dispute between rival companies in competitive
business field who would like to keep their know-how, business strategy from the
public.
(c) Ease of enforcement of arbitral awards is a huge advantage. It is a common notion
that enforcing a domestic decision against a government is immensely problematic.
That is not so with arbitral awards because domestic laws and international
conventions permit the registration and enforcement of these awards.45
This third
advantage is common to commercial disputes as arbitration has worked wonders in
relation to commercial disputes worldwide. In Australia, commercial arbitration
continues to be an important part of ADR practice. When English law was received
into the Australian colonies after 1788, the English Arbitration Act 1697 became part
of the law of colonies. That Act was used to provide a standardised manner in which
commercial disputes could be referred to arbitration and have the award enforced as a
45
ibid

28
court order.46
Uniform Commercial Arbitration Acts were passed in the Australian
States and Territories between 1984 and 1987. These laws varying in each states and
territories essentially encourage the use of arbitration in commercial disputes with
rules that are relatively coherent across Australia. The Acts attempt to make
Australian arbitration consistent with the United Nations Commission on International
Trade Law (UNCITRAL).47
Which encourage member states to ensure that foreign
arbitral awards for international trade disputes are recognised by, and capable of
enforcement in, domestic courts.48
In Nigeria parties to a dispute can refer their case to the arbitral panel for resolution. Under
the High Court of Lagos State Civil Procedure Rule, 2003, a pre-trial judge may by mutual
consent of the parties refer any dispute for arbitration. The incorporation of ADR into the
view High Court Rules also coincides with the establishment of the ADR centre within the
court called the Lagos Multi-Door Courthouse (LMDC).
1.1.13 MINI-TRIAL
It is a form of non-binding ADR evaluative mediation process which assists parties in
gaining a better understanding of the issues in dispute, thereby enabling them to enter into
settlement negotiation on a more informal basis. It involves a presentation of the issues by the
respective lawyers of the parties assisted by a neutral expert to elucidate on any problems
which may arise during presentation.49
In some jurisdictions such as the USA, the judicial system allows disputants to participate
voluntarily in a judicial mini-trial. In the process, disputants’ lawyers present brief arguments
to a judge who will not be the judge if the case goes to trial. The judge hears the summaries
and the disputants and their lawyers and they, together, attempt to resolve the dispute. In
doing so, the judge points out the strengths and weaknesses of each party’s case and helps the
parties to resolve the dispute.50
Another form of mini-trial is the pre-trial conference.
1.1.14 PRE-TRIAL CONFERENCE
46
Astor, Hillary and Prof Christine Chinkin , dispute resolution in Australia 2nd
ed., Lexis Nexis Butterworths,
2002 Pg 299
47
Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1985
4848
Buddle Finley, New Zealand Bar Association 1987, p 105.
49
Amokaye G. Oludayo, Environmental Law and Practice in Nigeria 1st
ed. Lagos University of Lagos Press 2003
50
Albert fiadjoe, Alternative Dispute Resolution: A developing world’s perspective, 1st
ed, Cavendish publishers
2004 Pg 25

29
It is similar to a judicial mini-trial, though less formal. Typically, counsel for the disputants
present an overview of their respective clients’ cases and may refer to the evidence upon
which they would rely at trial. The pre-trial judge frequently provides a non-binding opinion
as to how the case would likely be resolved at trial. The disputants themselves are encouraged
to attend the pre-trial conference. If the disputants cannot settle the case at the pre-trial
conference the judge will attempt to narrow the issues for trial and obtain agreement from the
disputants regarding evidence and the anticipated length of the trial. As a result a pre-trial
conference combines an attempt to resolve a dispute prior to trial and preparation for trial.
1.1.15 SUMMARY JURY TRIAL
Summary jury trial process is an avenue, that of a trial, to satisfy the desires of those
disputants who insist on their day in court. This process saves time and money for the parties.
It involves the presentation of an abbreviated version of the evidence to an advisory jury.
That evidence is the summary of the case for each party. Attorneys may present closing
arguments based on the abbreviated evidence. Upon the completion of the process, the jury
offers a non-binding, advisory verdict. This information can then be used as a basis for
further settlement negotiations. The beauty of this process is that the parties could limit the
reference to the jury to a specific issue of grave importance, such as liability in a negligence
dispute or the quantum of damages.
It is not unusual, following delivery of a ‘verdict’ by the jury, for the parties or their attorneys
to question the jurors about their reasoning, to further the negotiation process. It is said that
this process is infrequently invoked as it is reserved for complex cases.
Its main advantages are that;
a) It provides the parties with valuable insights as to how a jury might find in a
contested case, thus aiding the facilitation of a settlement.
b) It is faster, quicker and cheaper than a protracted trial.
Among its chief disadvantages is the fact that;
a) It may not accurately predict the results of a trial.
b) It may prove to be wasteful of time and money, where a settlement is not reached.
Additionally, as the process is not usually invoked until the eve of a trial, it cannot eliminate
substantial costs of case preparation.51
51
Fine, E and Plapinger ES (eds), ADR and the courts PP 79-99 (CPR Legal Program) (1987).

30
1.2 ROLE OF A THIRD PARTY
Among the various options of ADR, mediation and conciliation both refer to a third party
for the settlement of disputes. However both mediation and conciliation involve a facilitative,
consensual and confidential process, in which parties to the dispute select a neutral and
independent third party to assist them in reaching a mutually acceptable negotiated
agreement. While both processes incorporate the principle of self-determination and are non-
determinative processes, conciliation allows the third party (the conciliator) to advice on
substantive matters through the issuing of formal recommendations and settlement proposals.
In contrast, mediation requires that the third party (the mediator) address process issues only
and facilitate the parties in reaching a mutually acceptable negotiated agreement.52
Apart
from these options all other ADR options except negotiation, which is a consensual
bargaining process without the inclusion of a third party. Others require a third party in
resolving disputes this may be in form of a judge in mini-trials to listen to arguments and
proffer an unbiased opinion as to the weaknesses and strengths of each party. An arbitrator is
a third party in an ADR dispute, which is independent and also impartial, he listens to
argument from both parties to the dispute before proffering solutions which are binding on
the parties involved. A third parties decision in regards to conciliation and mediation is not
binding on the parties involved in the disputes as they are still free to select other ADR
options if not satisfied with the outcome.
52
Law Reform Report on alternative dispute resolution mediation and conciliation first published November
2010.

31
CHAPTER TWO: ADR AND THE CIVIL JUSTICE SYSTEM
The civil law system is found in many Western European countries, much of Latin America
and Africa, and parts of Asia. Nigeria is an example of a country practising a civil justice
system, which is inquisitorial in nature and is characterized by a continuing investigation
conducted initially by police and then more extensively by an impartial examining
magistrate. This system assumes that an accurate verdict is most likely to arise from a careful
and exhaustive investigation.53
Nigeria, being a member of the Commonwealth, received the
adversarial system practiced in the United Kingdom. Adversarial system is a system for the
attainment of justice according to law through the intervention of a supposedly neutral third
party who through the interpretation of the law as a judge pronounces upon the rights,
obligations and liabilities of each litigant before him. This procedure portends that justice
must be dispensed according to the laid down rules of law. The outcome of such a system is
perhaps undoubtedly legal justice i.e. justice according to law.54
The Nigerian legal system as obtains in other common law jurisdictions provides a necessary
structure for the resolution of many disputes. However, some disputes will not reach
agreement through a collaborative process. Some disputes need the coercive power of the
State to enforce a resolution. Perhaps more importantly, many people want a professional
advocate when they become involved in dispute, particularly if the dispute involves perceived
legal rights, legal wrongdoing, or threat of legal action against them. Therefore, the most
common form of judicial disputes resolution is litigation. Litigation is initiated when one
party files suit against another. The proceedings are very formal and are governed by rules
such as rules of evidence and procedure which are established by the legislature. The
outcomes are decided by an impartial judge and are based on the factual question of the case
and the application of law. The verdict (or decision) of the court is binding, not advisory.
However, both parties have the right to appeal against the judgment to a higher court. The
judicial dispute resolution is typically adversarial in nature. In other words, the traditional
notion of a courtroom is that of a place where disputants commence a process, typically
adversarial in nature, for the resolution of their disputes. This notion therefore makes the
courtroom the place where dispute begins. Viewed from this perspective, disputants more
53
Amokaye G. Oludayo, Environmental Law and Practice in Nigeria 1st
ed. Lagos University of Lagos Press 2003
54
Dele Peters: Alternatives to Litigation: The Multi-Door Court House Concept in Issues in Justice
Administration in Nigeria (ed) Fassy Adetokunboh O. Yusuf, Published by VDG. International Ltd 2008.
p.435.

32
often than not and without attempting any other forum for the resolution of their dispute
proceed to court with the hope and aspirations of seeking redress and obtaining justice.
2.0 The Negative Aspect of the Adversarial System
Unfortunately, these hopes and aspirations are often dashed, not just by the adversarial and
rancorous nature of the proceedings, but also by the long delay and high cost in terms of both
time and money expended. All these are in addition to relationships and/or business destroyed
in the process of seeking justice through the adversarial process.55
This adversary system is in contradistinction to the continental view in which once the parties
have invoked the jurisdiction of the court it is the duty of the court to investigate the facts and
the law and give a decision according to its view of the justice of the case with regard to any
public interest that may be involved.56
The system is not perfect and has some problems. Some of these are: legal justice becomes
formalistic and technical. It tends to elevate form over substance: no matter how much the
judges insist in rhetoric “that justice is not a fencing game in which the parties engage in
whirligig of technicalities”. These complexities became more chronic and costly as litigation
went up the judicial pinnacle, thereby making judicial proceedings both mysterious and
daunting for most people. This adversely affects the confidence of the ordinary people.
Secondly, many people consider the entire legal system as having too much root in English
concepts and as, therefore, being basically a colonial relic. Many of these legal concepts have
not been part of the African experience and therefore could not cover our existential realities.
This tends to exclude the traditional community role of law in our indigenous societies which
focused on better management of human relations through conciliation or compromise of
disputes.57
Beyond this however, a litigant’s success in the court again is dependent on series of
variables and factors. For instance, the concept of legal justice may, to a very great extent,
depend on the calibre of attorney whose services a litigant can afford to pay for and hence the
monetization of justice and the aphorism that justice is for the highest bidder.58
Consequently
55
ibid
56
Epiphany Azinge, “The Adversarial System of Adjudication: Problems and Prospects, being paper delivered
at the 22nd Advanced Course in Practice and Procedure held at NIALS, Unilag Campus, Lagos from 8th – 26th
July, 2002.
57
I. A. Ayua, “Nigerian Legal Profession: Problems and Prospects” in Ayua (ed) Law, Justice and the Nigeria
Society, NIALS Commemorative Series 1, Nigerian Institute of Advanced Legal Studies, Lagos, 1995 at p. 6..
58
ibid

33
there is loss of confidence in the whole adversary system. Thus, according to Justice Arthur
Vanderbilt:
“…It is in the courts and not in the Legislature that our citizens primarily feel the keen,
cutting edge of the law. If they have respect for the work of the courts, their respect for law
will survive the shortcomings of every other branch of government. But if they lose their
respect for the work of courts their respect for law and order will vanish with it to the great
detriment of the society.”59
The adversary procedure that tends to obstruct the course of justice by encouraging lawyers
to tarnish the evidence which is favourable to the opposition while at the same time
oppressing evidence favourable to opponents or preventing the falsity of evidence on his side
to be discovered60
needs a re-examination.
However in Nigeria and unnecessary frequent delays in judicial proceedings have great
adverse effects on the administration of justice in Nigeria. This situation is brought about by
the congestion of cases in the courts arising from among other factors, unnecessary
adjournments leading to unusual long time duration in deciding an otherwise simple case.
Lawyers have also not helped matters as they are in the habit of delaying cases especially
when they discover that the pendulum does not swing in favour of their clients. They result to
legal tactics which in one way or the other frustrate the court from deciding the matter
expeditiously.
The most two common forms of ADR in Nigeria, are mediation and arbitration. Arbitration
is a simplified version of a trial involving no discovery and simplified rules of evidence.
Either both sides agree on one arbitrator, or each side selects one arbitrator and the two
arbitrators elect the third to comprise a panel. Arbitration hearings usually last only a few
hours and the opinions are not public record. Arbitration has long been used in labour, and
security regulation, but is now gaining popularity in other business disputes.
Little wonder the need for ADR is now more spoken of among the legal practitioners.61
Due to the shortcomings and ills of the civil justice system, ADR is beginning to be
recognised as a justice system, where aggrieved parties in civil proceedings can select from a
variety of options present ranging from arbitration, conciliation, mediation, negotiation and
59
A Vanderbilt, The Challenge of Law Reforms, Princeton University Press, 1955 pp. 4 – 5 Quoted in Henry J.
Abraham; The Judicial process. “(London: Oxford University Press, 1975) 3”.
60
Op cit 52
61
Felix Adewumi, Alternative Dispute Resolution (ADR): An Antidote to Court Congestion. Published 2007,
updated 2009. Journal of International and Comparative Law, vol. 19

34
mini-trial; to resolve disputes in a speedy and stress free manner. It is no wonder, then, that
major law reform efforts in the wider Commonwealth have sought to focus on ‘access to
justice’ issues. These reform efforts speak to a paradigm shift in how a modern and just
society may seek to manage conflict.
The ADR has the potential to enable parties to reach settlements that they will be content
with, and on some occasions to reach them with lesser expenditure of money and time than if
they were to proceed to a full hearing through the civil courts. Although mediation like any
other ADR option is not universally good when viewed from the perspective of the litigant or
the state. Moreover, although mediation has a place alongside a system of civil justice, it can
only be as a compliment to that court system and not as substitute or replacement for it. Civil
litigation before the courts is not dead, or dying.62
it was in reinforcement of this notice that
Lord Neubuger observed that;
“Adjudication of rights through the courts, whether in a full trial or in a summary form, does
and should continue to remain at the heart of our system of justice.”63
He however noted several points on how a civil justice system was to operate;
1. A well funded, well functioning court system dealing with both criminal and civil
cases is a critical feature of a society which exist under the rule of law. Indeed, it is a
pre-condition to democracy. Lord Neuburger puts the matter thus: 64
the law majestic
equality is for civil justice of fundamental importance. …equal access to justice for all
underpins our commitment to the rule of law. It ensures that we live not under what
Friendrich Meinecke characterised as a government of will (but under) a government
of law. It ensures that an individual citizen can come before the courts and stand
before the seat of justice as an equal to his or her opponent-whether that opponent is
another such individual, a powerful corporation or the state itself. We should not be
surprised that equality before the law, insomnia- of which equal access to the courts is
one aspect- was for the citizens of Athens two and a half thousand years ago, the basis
the of which democracy arose.
2. However, negotiated settlement, that is settlement of disputes without resort to
violence, is the principal means by which the vast bulk of civil disputes are resolved.
62
Hon Justice Winkelmann, ADR and the civil justice System delivered at the AMINZ conference 2011
63
ibid
64
Lord Neuburger of Abbotsbury, Master of Roll Has Mediation had its Day? (Gordon Slynn Memorial Lecture
2010, 10 November 2010)

35
Only a small proportion of disputes are resolved. Only a small proportion of disputes
are ultimately resolved by a legally binding determination of parties’ rights.
3. That is not a new feature of our system of civil justice. Cases have been settling at
roughly similar rates for decades. That is true of our jurisdiction, and every
jurisdiction we would wish to compare ourselves with.
4. A high rate of settlement is not to be considered a failing of any system of civil
justice. In fact it can be considered a good indicator of a well functioning civil court
system (although there need to be some caveats upon that remark which I will come
to later), and indeed is critical to its on-going sustainability.
People come to courts for two reasons; to have a judge determine their rights and
remedies, and to invoke in effect, the threat of the state power of compulsion to
encourage settlement. The process of the court are routinely invoked as a means of
producing settlement, and indeed our cases management processes encourage parties
to resolve their differences if they can achieve an appropriate settlement.
Civil justice is an expensive public good and it is right that efforts are made to settle
disputes where that can be done fairly and consistently.
5. Cases settled in the shadow of the law- without a functional civil court system would
not settle peacefully.
6. Notwithstanding that, disputants are being referred to mediation in greater and greater
numbers by lawyers. Mediation is actively encouraged in judicial form of mediation,
judicial settlement conferences. Given the evidence we do have as to the effect of
mediation, we need to assess and reflect upon benefits that accrue to parties from
mediation.
7. It is common to promote ADR services by reference to the perceived downsides of the
court proceedings, what is commonly referred to in the literature, as an anti- litigation
narrative. The less desirable adjudication of rights before a court is seen to be, the
more desirable, and even inevitable, resolution through mediation. However the anti-
litigation narrative carries with it the danger of undermining the civil court system, by
eroding confidence in it. Such an outcome is not the interests of the profession, a
profession structured around the courts, and not in the interests of the providers of
alternative dispute resolution services, as they operate and depend upon a well
functioning court system for the services they provide.

36
Furthermore, these efforts reflect the need for an ADR change of culture and a radical re-
appraisal of the traditional approach to dispute settlement. More and more, there is the
increasing recognition that the ills of the litigation process pose a crisis not only for
governments but also for the judiciary, the legal process itself and the populace at large. If, as
Lord Diplock put it in Bremar v South India Shipping Corporation Ltd,65
“every civilized
system of government requires that the state should make available to all its citizens a means
for the just and peaceful settlement of disputes between them as to their respective rights”,
then the present system, which caters to less than 10% of litigants’ claims, fails the test
because it denies access to justice to so many. If the civil justice system wants to win back
the trust of a litigant it must be ready to resolve some of the challenges faced in litigation.
Lord Woolf has set out the general principles which should inform a credible justice
system.66
These are that:
a) It should be fair, and be seen to be so;
b) procedures and cost should be proportionate to the nature of the issues
involved;
c) It should deal with cases with reasonable speed;
d) It should be understandable to those who use it;
e) It should be responsive to the needs of those who use it;
f) It should provide as much certainty as the nature of particular cases allows;
and
g) It should be effective, adequately resourced and organised so as to give effect
to the principles above.
In pursuing these principles, the overall objective should be to:
a) Improve access to justice and reduce the cost of litigation;
b) Reduce the complacency of the rules and modernise terminology; and
c) Remove unnecessary distinctions of practice and procedure.67
However, civil justice system is not being condemned but is gradually been influenced by
the ADR system. Lord Bingham of Cornhill68
welcomed the transformation of the procedure
of the courts with these telling words: “Conventional litigation processes and ADR are not
65
[1981] AC 909, P 917
66
Albert fiadjoe, Alternative Dispute Resolution_ A developing world perspective, 1 Ed Cavendish publishers
2004.
67
ibid
68
Mackie, The ADR Practice Guide, Bloombery publishers 3rd
revised edition 2000. Retrieved from
www.abebooks.com/../bd 23 of July 2013

37
enemies, but partners. Neither can ignore the development in the other.” These principles,
though enunciated with civil justice in mind, are equally applicable to the criminal justice
system.
With regards to Nigeria again, Section 19(d) 69
provides for the settlement of disputes by
arbitration, mediation, negotiation and adjudication. This is in the crucial role arbitration and
other forms of ADR now play in the resolution of various types of disputes. The
constitutional status accorded arbitration and other forms of ADR for the settlement of
disputes is a complementary role to the judicial powers conferred on the courts by the
constitution.70
2.1 ENFORCEABILITY OF DISPUTE RESOLUTION CLAUSES
Dispute resolution clauses are often relegated to the end of contractual negotiations; or are
dismissed as "boilerplate" and given standard wording without any thought as to the context.
But these clauses can have profound implications for how any dispute is resolved and the
contractual rights and obligations enforced.71
"Dispute resolution clause" refers to the contractual provisions by which parties specify how
their disputes are to be resolved: this includes arbitration, mediation and reference to
litigation through the courts (commonly referred to as a "jurisdiction clause").72
These
clauses can be found in agreements drawn up with the belief that in times of conflict or
disagreement between the contracting parties one or more of the ADR options they so choose
would be available to settle the dispute.
In the American legal system, alternative dispute resolution is often advertised as a necessity
to avoid high monetary, time, and people costs of litigating. Given these benefits, one would
think that pre litigation dispute resolution clauses or contractual clauses that require parties to
mediate or negotiate before they resort to litigation, would be routinely enforced. The
enforcement of such clauses, however, is not a foregone conclusion. These clauses are
sometimes present in franchise agreements and usually take the form of requiring either
party-to party negotiation or third-party neutral assisted mediation. Litigants attempting to
69
1999 Constitution of the Federal Republic of Nigeria (CFRN)
70
Eunice R Oddiri (Mrs), Director of the Regional Centre for International Commercial Arbitration, Lagos.
Paper Presentation on Alternative Dispute Resolution. August 2004. Retrieved from
www.nigerianlawguru.com/articles/ar
71
Ashurst LLP, Dispute Resolution Clauses An Overview, Ref 9093916 January 2012. Retrieved from
www.ashurst.com/doc.aspx%3Fid_resouces 29th
of June 2013.
72
A jurisdiction clause is simply specie of dispute resolution clause and should only be included where parties
want a particular court (or courts) to decide a dispute. It should not be included where an alternative forum
for dispute resolution is preferred.

38
enforce such clauses usually assert that compliance is a condition precedent to initiating
litigation and move either to dismiss or for summary judgment to effectuate these clauses.
Some courts are receptive to enforcing pre litigation dispute resolution clauses based on the
parties’ agreement, but others are more ready to ignore the clauses and send the matters on
their way to litigation.73
Courts that do not enforce the provisions often focus on an ambiguity or failure in the
language of the applicable provision. But concerns about the voluntary nature of dispute
resolution by settlement may also play a part in the reluctance to force parties to attend
mediation or engage in settlement negotiations even if they contractually agreed to a
provision requiring it. Despite these possible obstacles, some parties go to great efforts to
enforce pre litigation dispute resolution clauses74
to take advantage of the hoped-for benefits
of early settlement efforts
A pre litigation dispute resolution provision that is likely to be enforced, should expressly
state that it is a condition precedent to litigation and should be as specific as possible about
the required process. Likewise, if one wants to enforce a pre litigation dispute resolution
provision, the party should bring it to the attention of the court at the earliest possible point,
such as by a motion to dismiss or a pre discovery motion for summary judgment.
The benefits to enforcing pre litigation dispute resolution clauses are much the same as the
benefits of settling litigation, but there are additional reasons why some litigants make the
effort to compel dispute resolution at a preliminary stage.
The most obvious benefit of pre litigation dispute resolution clauses is that, if successful,
they facilitate settlement between the franchisor and franchisee before litigation is filed or
before it is pursued to completion. This saves all parties costs, time, and risk, such as with
discovery disputes, depositions, expert witness costs, and disruptions in the lives of the
parties, all of which are often part of litigation.75
Generally speaking, arbitration awards are easier to enforce than court judgments. The New
York Convention76
provides an extensive enforcement regime for international arbitration
awards. Most industrialised nations are signatories.77
There is no real equivalent for
73
Elizabeth M. Weldon and Patrick W. Kelly, Pre litigation Dispute Resolution Clauses: Getting the benefit of
your bargain, 2011.
74
These are clauses that be enforced before litigation comes in.
75
Richard M. Calkins, Mediation: The Gentler Way, 41 S.D.L. Rev. 277, 279-80 (1996) (discussing the reasons
for the success of mediation).
76
1958, New York Convention on the Recognition and Enforcement on Foreign Arbitral Awards
77
Retrieved from www.unicitral.org/ 29th
of June 2013.

39
enforcement of court judgments78
; however, enforcement of an English cour judgment within
the EU and in other Commonwealth countries should be fairly straightforward.79
However, if
you are likely to need to enforce in a country outside the EU and the Commonwealth,
arbitration is the preferable option.80
Traditionally the main choice for dispute resolution was arbitration or litigation. However,
the last few years have seen contracting parties become more creative in their adaptation of
these forums and, in some areas, are moving away from it altogether. Parties are now
choosing more cost-effective and efficient ways of dealing with their disputes and are
catering for this in their contracts. Dispute resolution clauses are, as a result, becoming longer
and more complex. If drafted clearly and with thought they can ensure that disputes are
resolved in a way that best supports the commercial interests of the parties. If not, parties can
find themselves in delayed and protracted proceedings in the forum they were particularly
keen to avoid.81
Negotiations and mediations, which the provisions generally require, are typically fairly
short affairs, often just requiring a one-day meeting and not requiring the expenses of
discovery or motion practice. Moreover, negotiations and mediation may be highly effective.
The mediation success rate for resolving disputes before litigation has been estimated to be
70 percent.82
These clauses allow disputes to be aired and resolved privately and, particularly if the matter
settles, perhaps confidentially.83
Parties can listen to and address each other’s grievances
without broadcasting them to the franchise system as a whole and without the advocacy and
rhetoric that are usually part of the litigation process.84
This process can increase the odds of
a mended relationship. Because alternative dispute mechanisms often seek or result in
compromises between the disputing parties in which both parties feel as though they have
78
The Hague Convention on Choice of Court Agreements of 2005 is the litigation equivalent of the New York Convention.
However, to date only Mexico has acceded to it. The US and the EU have signed it but not yet ratified it. Two ratifications
or accessions are required before it will enter into force. It will be a while before it has the impact of the New York
Convention.
79 Under the various reciprocal enforcement treaties in place: Council Regulation (EC) No 44/2001 on Jurisdiction and the
Recognition and Enforcement of Judgments in Civil and Commercial Matters (commonly referred to as the Brussels
Regulation); The Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters;
The Administration of Justice Act 1920; and The Foreign Judgments (Reciprocal Enforcement) Act 1933.
80
Op cit 71
81
ibid
82
Micheal A. Burns, Give Pursuit Mediation a Chance, 20 L.A. LAW... 60 (1997). Retrieved from
www.swlaw.com/assets/pdf/news/2011 29th of June 2013.
83
Richard M. Calkins, Mediation: The Gentler Way, published by LexisNexis Rev. 277, 279–80 (1996).
Retrieved from www.swlaw.com/assets/pdfnews/2011/ 29th
of June
84
Ibid

40
won something (or, sometimes, both feel they have lost something equally), there is a greater
possibility of a continued relationship between the parties if termination is not a part of the
agreed-upon outcome. This can be particularly relevant in the franchise arena when concerns
about continuing a system or a relationship or protecting an investment can be relevant to one
or both parties.
From the enforcing party’s perspective, compelling compliance with a pre litigation dispute
resolution clause gives meaning to the contract language and the rule of freedom of contract.
The doctrine of freedom of contract stands for the simple principle that agreements freely and
voluntarily entered into should be enforced.85
Under this principle, parties are generally free
to agree to whatever they like, and, in most circumstances, it is beyond the authority of the
courts to interfere with their agreement.86
From an enforcing party’s view, these clauses are condition precedents—“an act that must
be performed before or an uncertain event that must happen before the promisor’s duty of
performance arises”.87
2.1.1 Challenges to enforcing dispute resolution clauses
While pre litigation dispute resolution clauses have many benefits, enforcement should not
be an assumed result. Though negotiation and mediation may be framed as condition
precedents to litigation, they still are inherently voluntary processes once the parties begin
those activities, i.e., courts cannot force a party to agree to settle.88
Courts may be reluctant to
enforce a voluntary event, especially when it is not clear that the other party wants to attend
or negotiate.89
Unsurprisingly, this rationale does not appear explicitly in most court opinions
that refuse to enforce pre litigation dispute resolution provisions, but this concern may be
apparent in the court’s reference to a party’s refusal to participate in dispute resolution.90
In
addition to the voluntary nature of pre litigation dispute resolution clauses, the very act of
sharing information as part of the mediation or negotiation process, outside of the litigation
framework, can pose a challenge to the acceptance and enforcement of these clauses. Parties
may fear revealing facts relating to their clients’ cases, or theories upon which those cases or
defences are based, to the other side during the negotiation. For example, this issue was
85
Amerisure Mut Ins. Co v carey transp., Inc, 518 F Supps 2d 888, 899
86
Kemiron Atl. V. Agualem Int’l, Inc., 290 F.3d 1289 1291 11th
2002
87
Witkin Legal Institute, Summary of California Law Contracts & 776 10th
ed. 2005, 16 volumes
88
Ohio State Journal of Dispute Resolution, David S. Winston: Participation Standards in Mandatory medication
Statutes. Published by lexisnexis 1996 retrieved on the 30th
of June 2013
89
In Re Atlantic Pipe Corp., 304 F.3d 135, 144 Sept 18th 2002)
90 Cumberland & York Distribs. v. Coors Brewing Co. 343 F.3d 1340, 1344, 68 U.S

41
raised in the related context of dispute resolution by summary jury trial in Strandell v.
Jackson County, Illinois, where the court used this logic to reverse the trial court’s decision
requiring alternative dispute resolution by summary jury trial—a settlement procedure
whereby the parties present their cases in summary form to a jury, and the jury renders a
nonbinding verdict, the point of which is to “motivate litigants toward settlement”91
In
Strandell, the trial court ordered the parties to participate in a summary jury trial after
plaintiffs unsuccessfully objected on the ground that this mechanism would require disclosure
of privileged statements. The U.S. Court of Appeals for the Seventh
Circuit reversed the order of summary jury trial because, among other things, it feared that
such a compelled alternative dispute resolution technique could upset the “carefully crafted
balance between the needs for pre trial disclosure and party confidentiality” in that it could
require disclosure of information that would otherwise only be obtainable in the discovery
process.92
In the context of pre litigation clauses, fear may be worsened as negotiations and mediations
are supposed to occur before litigation is initiated. Thus, a party may be required to reveal its
“cards,” or at least some of them, for the opposing side to view during the settlement
attempts; but if no enforceable settlement agreement materializes, these cards are already “on
the table” in the eventual litigation.
This concern, however, may be managed by the party and may depend in part on the nature
of the dispute. First, a party is in control of what information and theories are shared in the
negotiation or mediation context. If a party would benefit from not sharing a certain item of
information in dispute resolution, that party can keep that information to itself. Second, pre
trial mediation and negotiation should not require any disclosures beyond what would be
required in the ordinary course of discovery in litigation.93
Thus, any information that is
gained through mediation and negotiation would likely be discovered well before trial
through the discovery process. Pre trial dispute resolution may prevent litigants from saving
surprises for the time of trial, but trial by ambush where the discovery process is eliminated
or severely restricted is not part of our judicial system.94
91
ibid
92
ibid
93
In re Atl. Pipe Corp., 304 F.3d at 144
94
ibid

42
When deciding whether to try to enforce a pre litigation dispute resolution clause, concerns
about sharing information should be weighed against the benefits of attempting dispute
resolution at an early stage and the realities of whether a settlement might be feasible.
In recent years, courts have become more willing to uphold mediation clauses, but
previously some courts viewed mediation clauses as “nothing more than an unenforceable
agreement to agree.”95
Indeed, some courts still harbour lingering doubts about requiring
negotiation or mediation before litigation. As with any contract clause, enforceability largely
hinges on the clarity of the wording of the particular clause.
Courts have been unwilling to enforce pre litigation dispute resolution clauses and stay or
dismiss litigation when the clauses are indefinite or vague or when they contain discretionary
requirements. Courts that do enforce the pre litigation dispute resolution clauses usually view
them as valid conditions precedent to initiating litigation.
One rationale courts have given for refusing to enforce a pre litigation dispute resolution
clause is that the provision is ambiguous in some manner, especially if the clause is
ambiguous in how it is to be carried out. In the case of
Cumberland & York Distributors v. Coors Brewing Co.96
A court refused to enforce a pre
litigation dispute mediation provision on the ground that an ambiguity (in this case, the
ambiguity was that it lacked a time limit for completing the mediation) allowed the court to
refuse to enforce the provision. There, plaintiff Cumberland & York Distributors
(Cumberland) sued defendant Coors Brewing Company (Coors) over a dispute regarding
their distributorship agreement.97
The distributorship agreement stated that if any dispute
arose between Cumberland and Coors, the dispute would be submitted to informal mediation
by the president of Coors within sixty days from the date that the dispute arose.98
Further, the
distributorship agreement stated that mediation was a condition precedent to Cumberland’s
right to pursue any other remedy available under the agreement or otherwise available under
law and went on to require binding arbitration as the ultimate form of dispute resolution.99
The agreement did not give any time limit for the length of mediation.100
Coors sought to
dismiss the action or, in the alternative, stay the action pending arbitration, arguing that their
95
Robert N. Dobbins, Practice Guide: The Layered Dispute Resolution Clause: From Boilerplate to Business Opportunity, 1
Hastings Bus. L.J. 161, 167 (2005) (discussing the enforcement of mediation clauses). Retrieved from
www.swlaw.com/assseets/pdf/news/2011/ 29th of June 2013
96
2002 U.S. Dist. LEXIS 1962 (D. Me. 2002).
97
ibid
98
ibid
99
ibid
100
ibid

43
distributorship agreement made mediation a condition precedent to arbitration and filing a
lawsuit.101
The district court held, among other things, that Cumberland was not required to
mediate.102
The court reasoned that because there was no time limit on the mediation,
mediation could delay final resolution of the dispute and “surely a party may not be allowed
to prolong resolution of a dispute by insisting on a term of the agreement that, reasonably
construed, can only lead to further delay.”103
The Coors court also reasoned that it was not
required by law to stay the action for mediation but did not cite any law for this particular
observation.104
Ultimately, this court’s holding did not give any weight to the parties’ contract language
requiring settlement efforts before binding arbitration.
Dispute resolution clauses can be enforced by the court, although the above cases
demonstrate that some courts will not necessarily divert cases into alternative dispute
resolution simply because the contract iterated that intent in some form, other courts have
recognized contractually required settlement efforts as condition precedents to the initiation
of litigation. In fact, some courts have taken a hard line in enforcing these provisions and
have actually dismissed cases, albeit without prejudice, for failure to comply with pre
litigation dispute resolution provisions. Example of enforcement can be seen in the recent
case of Tattoo Art, Inc. v. TAT International,105
LLC Tattoo Art, Inc. entered into a contract
with TAT International, Inc. that provided the parties would “submit the dispute to mediation
. . . prior to filing any action to enforce this Agreement.”106
Tattoo Art filed the action
without formally requesting to submit the matter to mediation, though it sought to negotiate
the matter with TAT International before and after filing the action. Also, after plaintiff filed
the action, defendant requested to mediate the matter, but the mediation did not happen
because defendant failed to respond to plaintiff even after making the request to mediate.
Defendant filed a motion to dismiss the action under Federal Rule of Civil Procedure 12(b)
(1) for lack of subject matter jurisdiction for failure to request mediation before filing
litigation.107
Even though plaintiff was willing to mediate the matter after filing and defendant
failed to respond to this effort and plaintiff attempted without success to negotiate with
defendant before and after the filing, the court granted the motion to dismiss because plaintiff
101
ibid
102
ibid
103
ibid
104
ibid
105
711 F. Supp. 2d 645 (E.D. Va. 2010).
106
ibid
107
ibid

44
failed to seek mediation before filing litigation.108
The court found this requirement to be a
condition precedent and rejected the argument that requiring fulfilment of the condition
would be futile. The court viewed the requirement “to submit the dispute to mediation” as
merely requiring the party to request mediation, and emphasized the fact that defendants
advised the court that they would mediate in good faith.109
2.1.2 ELEMENTS OF AN ENFORCEABLE CLAUSE
The above cases show the variety of approaches that courts have used in dealing with pre
litigation dispute resolution clauses and emphasize the fact that the clause’s wording is
critical in any bid to enforce it. For a clause to be enforceable, there are several elements that
should be considered:
a) The pre litigation dispute resolution requirement is a “condition precedent” to the
filing of litigation
There may be no better way to create a condition precedent than simply to say it. For
example, in DeValk, the mediation clause explicitly stated that mediation was a condition
precedent to any other remedy under the agreement or at law.110
The court pointed to this
when rejecting plaintiffs’ substantial compliance argument.111
Conversely, some courts have
rejected pre litigation dispute resolution provisions as condition precedents on the ground that
the procedures set forth were not clearly identified to be pre litigation requirements. The
phase condition precedence
b) Make the clause specific
The clearer the dispute resolution clause, the greater the chance it will be enforced. Among
other things, the clause should specify the type and elements of dispute resolution required
(negotiation, mediation, or other); the scope of the application (what type of claims must be
negotiated or mediated); and the timing of the resolution efforts (the minimum length of time
for dispute resolution or how long the “stay” for dispute resolution efforts is in place before
litigation can be commenced).
For example, in Cumberland, the court refused to uphold the mediation clause because it did
not provide a time limit for mediation.112
Because there was no time limit stated is the
mediation clause, the court found that one party could take advantage of the other by
108
ibid
109
ibid
110
DeValk Lincoln Mercury Inc., 811 F.2d at 355.
111
Ibid
112
Cumberland & York Distribs., 2002 U.S. Dist. LEXIS 1962, at 11–12

45
submitting the dispute to mediation and letting the matter go stale there. The court found that
such a delay would undermine the purpose of the mediation clause, which was to quicken the
resolution, published in the Franchise Law Journal113
of a dispute. It is important to note that
dispute resolution clauses are non-enforceable if the provisions of such agreement are
ambiguous in some manner i.e. how it is interpreted.
2.2 REFERRAL TO MEDIATION OR CONCILATION AFTER LITIGATION HAS
BEGUN
Usually, both mediation and conciliation can be referred by the court after a dispute has
occurred between both parties. In civil proceedings, when disputes are brought before the
court generally a court can recommend either mediation or conciliation amongst the various
ADR options present to resolve the dispute.
Article 5.1 of the 2008 EC Directive on Mediation provides that:
“A court before which an action is brought may, when appropriate and having regard to all
the circumstances of the case, invite the parties to use mediation in order to settle the dispute.
The court may invite the parties to attend an information session on the use of mediation if
such sessions are held and are easily available”.
Mediation and conciliation are basically the same, though both are not binding and what is
said in mediation and conciliation is confidential, that is it cannot be used in court later until
both parties have agreed to it. People tend to keep to an agreement reached through mediation
and conciliation, because they have prepared its terms themselves. However a court can turn
the agreement made in mediation and conciliation into an enforcement order if both parties to
such agreements agree to it.
In Europe, two of the most widespread non-adjudicatory forms of ADR are conciliation and
mediation. A distinction is made between court-connected and other types of conciliation and
mediation. The aspect of being ‘connected’ to the courts is rather broad, and it is merely a
matter of the procedure including some degree of involvement by the courts.
Conciliators and mediators outside the court may be used, and the initiative to commence
proceedings may lie with the courts or with the parties. However, disputes where the parties
take recourse to private conciliation or mediation to begin with because they prefer not to
113
Volume 31, Franchise Law Journal No 1, Summer 2011 by the American Bar Association. Retrieved from www.american
bar association.org> American Bar Association>Publications 29th of June 2013

46
involve the judicial system at all are not included, and neither is threatening to file a suit as a
means of settlement negotiation.
The difference between conciliation and mediation is not very clear, and there are differences
between different jurisdictions in the use of the terms. As recognised by the European Union,
court-connected settlement procedures exist in the member states in general.114
However, the
only term defined by the Commission is ADR: ‘out-of-court dispute resolution processes
conducted by a neutral third party, excluding arbitration proper.’115
A shared legal distinction
between conciliation and mediation is not recognised.116
Mediation and conciliation can be referred to by the court after litigation has begun in certain
cases which are; divorce proceedings, neighbour problems in relation to noise pollution or
harassment also employments disagreements.117
Since mediation and conciliation can be referred to after litigation has begun, there are
various methods for litigation which includes; voluntary and mandatory mediation.118
2.2.1 VOLUNTARY MEDIATION
Mediation of a dispute may occur as a result of voluntary private agreement, community
program or court order (which includes statutory mediation of some matters prior to trial).
However, the term ‘mandatory mediation’ may be misleading, it merely means that the
parties are “forced to the table” to try to resolve their dispute. It simply requires that they
attempt to do it in good faith. The decision to accept the outcome of the mediation and settle
the matter remains voluntary, if the attempt at mediation fails to resolve the dispute, the
parties may continue to litigate the matter.
A voluntary agreement to mediate a dispute may pre-exist the dispute as in a private contract
provision in which the parties agree to mediate any dispute that may arise in the future.
Alternatively, a decision to mediate may come about after a dispute has already occurred and
the parties are merely considering a way to resolve the matter without going to court.
2.2.2 STATUTORY MANDATORY MEDIATION
114
Commission of the European Communities, Green Paper on Alternative Dispute Resolution in Civil and
Commercial Law, COM (2002) 196 final, 14-15. Retrieved from www.mediationworld.net/../82.html 29th 0f
June 2013
115
ibid
116
ibid
117
Find law UK- legal information and news. Retrieved www.findlaw.co.uk.com 29th
of June 2013
118
Gale Encyclopaedia of Everyday Law published by gale 2nd
edition

A CRITICAL APPRAISAL OF ALTERNATIVE DISPUTE RESOLUTION (ADR) MECHANISM IN RELATION TO ENVIRONMENTAL DISPUTES

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