This page contains a Flash digital edition of a book.
visit www.finance-monthly.com


across al ternat ive dispute resolut ion


AcRoss AlteRnAtive Dispute Resolution


No-one likes dispute, but it is a fact of life that everyone will experience dispute of some sort during their lifetime – whether that is professionally or personally. Alternative


Dispute Resolution (ADR) is the method by which a dispute can be resolved without resorting to litigation and court proceedings. ADR is often the preferred route to take when dealing with disputes, as the costs tend to be lower and it is less complex than proceeding with litigation. Some courts insist that ADR of some sort is undertaken before a case is referred for further legal proceedings.


Disputes within the world of business are common and it is each party’s best interests, and in the best interest of the business, to resolve these disputes fairly, smoothly, quickly and as cost-effectively as possible. There are several forms of ADR, including mediation, adjudication, conciliation, ombudsman schemes and arbitration. There are also many advantages and disadvantages of ADR, an outline of which is as follows.


Advantages of ADR •Mediation can help to ensure an on-going relationship between disputing parties, whereas court proceedings run the risk of damaging a existing relationship forever.


• ADR processes tend to be more flexible than court actions, and there is a wider variety of potential outcomes.


• The costs can be considerably lower than they would be if a dispute was taken to court.


Disadvantages of ADR • There can be a risk of unfair balance between the two parties – i.e. difference in status or power – which would make ADR action such as mediation an unfair or unpleasant situation for one side.


• There can be time issues involved in this type of dispute resolution. For example, Ombudsman investigations can be very time-costly. ADR is perhaps not the most efficient solution if the issue in dispute is time-sensitive.


•Mediation and Ombudsman cannot legally enforce an outcome or action. Therefore, in some cases, court action is a more practical option.


ADR around the world ADR and its surrounding issues can vary somewhat from country to country. In the UK, there has been speculation over the last few years about the effectiveness of the Woolf reforms, implemented


back in 1999. These changes – The Civil Procedure Rules – were suggested by Lord Woolf in a bid to overhaul the civil justice system in England and Wales. However 12 years on, there is much cynicism about the state the system is in now thanks to these reforms. There are many claims that the CPRs have limited access to justice for ordinary members of the public. According to The Times, the number of civil actions started in the High Courts dropped from over 350,000 in 1990 and 1991, to below 20,000 in 2002. This is obviously having an effect on lawyers’ workloads, which is bad news for the legal profession as a whole. Taking a look at some of the jurisdictions we are featuring in this edition of Finance Monthly, ADR in Nigeria is essentially regulated by the Arbitration and Conciliation Act. The purpose of this is to ‘provide a unified legal frame work for the fair and efficient settlement of commercial disputes by arbitration and conciliation; and to make applicable the Convention on 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’. A review of this Act is expected in the near future which, and although little details are known at the moment, indicates that it is likely that change is on the horizon. The structure of the Indian legal system is facilitated by the traditional civil law - The Civil Code of Procedure (1908), which has been amended to enhance its relevance. Indian courts have to deal with a heavy case load, making ADR even more essential as a way of removing cases from the courts and resolving them in alternative methods when and where possible. fi


fi MONTHLY MARCH 2011


99


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60  |  Page 61  |  Page 62  |  Page 63  |  Page 64  |  Page 65  |  Page 66  |  Page 67  |  Page 68  |  Page 69  |  Page 70  |  Page 71  |  Page 72  |  Page 73  |  Page 74  |  Page 75  |  Page 76  |  Page 77  |  Page 78  |  Page 79  |  Page 80  |  Page 81  |  Page 82  |  Page 83  |  Page 84  |  Page 85  |  Page 86  |  Page 87  |  Page 88  |  Page 89  |  Page 90  |  Page 91  |  Page 92  |  Page 93  |  Page 94  |  Page 95  |  Page 96  |  Page 97  |  Page 98  |  Page 99  |  Page 100  |  Page 101  |  Page 102  |  Page 103  |  Page 104  |  Page 105  |  Page 106  |  Page 107  |  Page 108  |  Page 109  |  Page 110  |  Page 111  |  Page 112  |  Page 113  |  Page 114  |  Page 115  |  Page 116  |  Page 117  |  Page 118  |  Page 119  |  Page 120  |  Page 121  |  Page 122  |  Page 123  |  Page 124  |  Page 125  |  Page 126  |  Page 127  |  Page 128