Repeatedly, seeing the ways that various Alternative Dispute Resolution (ADR) methods have worked out better for commercial transactions and faster for clients has made the lawyers of award-winning Nigerian firm Duale, Ovia & Alex-Adedipe (DOA) very pro-ADR.
“At DOA we have a team of about eight dispute resolution lawyers, and we are big advocates of ADR,” says Soibi Ovia, Head: Litigation and Dispute Resolution.
“We analyse disputes when they arise, advise clients beforehand on ADR clauses they should adopt in contracts, and provide a regular legal audit service for clients to flag impending disputes.”
Young lawyers who come into practice at DOA, as well as law students, are mentored and trained on the importance and use of ADR in the resolution of disputes for clients in Nigeria and wider Africa, and cross-border disputes, says associate Ifeanyi Osakwe.
“We educate and guide them on how they can leverage on ADR opportunities to resolve disputes in the most cost-effective manner,” says Osakwe.
Negotiation, mediation, and arbitration are the major ADR forms locally, notes Ovia, who is also the Secretary of the Arbitration and ADR Committee for the Nigerian Bar Association.
While arbitration was the most popular ADR mechanism in Nigeria a decade ago, in recent years there’s been a noticeable rise in mediation, says Ovia, particularly due to the increasing popularity of ‘multi-door courthouses’, where ADR centres are linked to regular courthouses.
Mediation is preferred by many parties to arbitration, as it is more relaxed and can often cover a wider array of matters. Now, with the multi-door courthouses in Nigeria, along with progress towards adoption of the Singapore Convention on Mediation, many concerns around the practical enforceability of mediated agreements have been addressed as well.
“In Nigeria, and particularly in Lagos, the courts are pro-ADR right now,” says Osakwe. “Amendments to civil procedure in 2019 ushered in the compulsory use of ADR before you approach the courts for litigation. You can see the courts are trying to encourage people to explore and utilise ADR instead of clogging the courts with cases. It does help.”
When it comes to choosing a method of ADR – preferably ahead of time in the drafting of a dispute resolution clause in any commercial or other contract between parties – then along with enforceability, there are some other key factors to consider, says Ovia.
“I think the first will be the nature of the contract, and where the contract is to be performed,” says Ovia. “If it’s a multi-jurisdiction type of contract we would definitely advise arbitration. It can also depend on the location and the parties, and the relationship the parties have, and whether or not they’re seeking to maintain that relationship in the event of a dispute.”
If it’s likely to be the type of dispute that may require quick interim relief, then that would need to be embedded in the drafting of the dispute resolution clause, adds Ovia.
It’s important for lawyers not to shut their eyes or close the doors to ADR, says Osakwe.
“We try as much as possible to achieve the best results using the best possible means, and that’s where ADR has come in to provide a very fundamental role in helping us achieve that.”
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