THE ANAYSIS OF ALTERNATIVE DISPUTE RESOLUTION (ADR) MECHANISM IN THE PUBLIC SECTOR:THE CASE OF LAGOS STATE LOCAL SERVICE COMMISSION. LAGOS, SOUTH-WEST NIGERIA.
JUBRIL ABDULRASSAQ FOLORUNSHO
Dept of Industrial Relations and Personnel Management
Lagos State University, Ojo Lagos, Nigeria
ABSTRACT
This paper examines the use of Alternative Dispute Resolution (ADR) mechanism in public sector with reference to Nigeria. The paper aims to discuss ways to resolve the endemic issues (conflict) that affect the terms and conditions of employment and other employment related matters in the public sector in Nigeria. The mechanism of ADR for supports dispute resolution without resorting to litigation, non-confrontation and coercive approaches of dispute settlement. This paper discusses ADR mechanisms using four (4) variables, namely: Conciliation, Fact-finding, Mini-trails and Conference-settlementfor the successful application of the mechanisms in the public sector in order to achieve constructive cooperation and a productive future working relationship among the disputants to reach a mutually acceptable resolution in the public sector of Nigeria. The study reveals that there is a positive correlation between conciliation and settlement conference with ADR mechanism. It is observed that there is a significant relationship between fact-findings, Mini-trails and conflict resolution in the Nigerian public sector. This study recommends the use of ADR mechanisms for peaceful co-existence, equity, reduce animosity and dialogue for understanding of cultural differences in the conflict resolution processes in Nigerian public service/sector.
Keywords: Alternative Dispute Resolution (ADR), Mechanism, Conflict Resolution, Conciliation,Public Sector.
INTRODUCTION
The historical purposes of alternative dispute resolution (ADR)the prefer methods of resolving disputes and being complemented by other methods of dispute resolution acceptance in many countries of the world, ADR as mechanism of dispute resolution with the aids of conciliation, fact-findings, conference-settlement and mini-trial prior to court hearing and dispute handling of the public policies, employment law and labor-management relations in the public sector , resolve international conflicts and criminal justice cases (Bercovitch & Houston, 2000).Alternative dispute resolution.(ADR) antedate and proliferate beyond the original geographic boundaries of Western civilization and early forms of conciliation and amicable dispute resolution at the roots of modern-day ADR reveal its primary motivation to realize equity between two disputant parties(Jerome & Joseph,2004).Alternative dispute resolution (ADR) is a term that was first coined to describe an initiative by litigants, and their representatives, to use innovative ways of resolving labour disputes other than the adversarial process of litigation. ADR originally referred to a range of processes used to resolve disputes as an alternative to the judicial court system, including negotiation, conciliation, mediation and several types of arbitration.
The common denominator of all ADR processes was that they were intended to be faster, cheaper, less adversarial and capable of achieving better outcomes for disputants than they could achieve through the process of litigation.Steadman, (2009)stressed that thealternative dispute resolution (ADR) is an alternative to litigation that resolve disputes without resort to adversarial litigation rather the traditional adversarial litigation process of resolving disputes in the court room or dispute resolution mechanisms that are short of alternative to full-scale court processeswhich facilitated settlement of disputes whendisputants are encouraged to negotiate directly with each other prior to legal or formal judicial systems or court-annexed like a courtroomprocess. ADR mechanisms which have been working effectively in providing an amicable and speedy conflict resolution in developed economiesare being suitably amended andincorporated in the developing countries in order to strengthen the formal judicial system and alternatives to the traditional legal system that is adversarial, costly, unpredictable, rigid, damage relationships andlimited to narrow rights-based remedies as opposed to creative problem solving.
More recently, Alternative Dispute Resolution (ADR)refers to “court-annexed” dispute resolution techniques designed to resolve disputes in controversymore efficiently when the normal negotiation process fails and is an alternative to the Formal Legal System “litigation” with view of the fact that the Courts backlog cases which emanates from dissatisfaction of many people with the ways in which disputes are traditionallyresolves resulting in criticism of the Courts the legal profession and sometimes lead to a senseof emotional isolation and confrontation from the whole legal system- thus, prompts a form of alternative dispute resolution ADR mechanisms such as conciliation, fact-finding, mini-trial and conference settlement can be use effectively to resolve, reduce, prevent or even eliminate workplace disputes in the public sector.
In Nigeria context, Arbitration and other forms of Alternative Dispute Resolution (ADR) is given constitutional backing as a methods of disputessettlement specifically, section 19(d) of the Constitution of the Federal Republic of Nigeria (CFRN)1999 connotes the resolution of disputes by Arbitration, Mediation, Conciliation, Negotiation and Adjudication. This is in recognition of the crucial role Arbitration and other forms ofADR now play in the resolution of various types of disputes/conflict and constitutional status accorded Arbitration and other forms of ADR for the settlement of dispute is a complementary role to the judicial powers conferred on the Courts by the Constitution (Laws of the Federation of Nigeria, 1990).Alternative dispute resolution ADR is a widely accepted international concept of dispute resolution which uses as an alternative ways of resolving conflicts without resorting to litigation of dispute settlement and adoptions among public sector, legal institute at the State and local level in the United States, Canada and the European Union among those countries of the word.Shamir (2004) asserts the concept of ADR as an “alternative to litigation” is globally acceptable and has become institutional framework as part of many court systems and systems for justice as a whole throughout the world and several countries uses as the primary source of conflict resolution especially in the public sector. Alternation dispute resolution (ADR) as “an array of non-binding” includes negotiation or conciliation and neutral evaluation These methods are mainly consensual and reconciliatory and bindingincludes arbitration and other adjudicatory ADR as a dispute resolution methods which involve the use of third-party neutrals to facilitate the disputants in dispute via a constructive resolution process(American Bar Association, 1999).
Globally, ADR movement has been gaining popularity and a movement that started as an answer to needs of the judicial system has generated interest in a variety of fields (government, society, international organizations and gender concerns) in some countries also stems from a desire to revive and reformthe traditional methods of resolving dispute resolution is obsolete to alternative dispute resolution technique includes, Conciliation, Fact-finding, Mini-trail and Conference settlement with the adoption of ADR mechanism would enhance the expedient of dispute resolution in the public sector.
However, the global growth of alternative dispute resolution (ADR) dues to costs, adjourn and unpredictable outcomes of the litigation systems which makes litigation unappealing to the world.
This paper therefore intends to explore the effectiveness application of ADR mechanisms to achieve constructive cooperation and productive future working relationship among disputants to attainable mutually acceptable resolution and access to justice and equity in the public sector of Nigeria. Hence this paper examines the connection between conciliation and conference settlement with ADR mechanisms and establishes whether there is a significant relationship between fact-finding, min-trials and conflict resolution in the public sector.
CONCEPTUAL FRAMEWORK
Many scholars and researchers implies on alternative dispute resolution (ADR) mechanism revives the dispute resolution of workplace issues which facilitate and strengthen court-annexed of the concept of ADR method to gain international acceptance was arbitration which shared many of its practices and procedures with the judicial system, ADR has matured and developed, mediation is being received as a preferred alternative and has become widely accepted as a process providing more flexibility and less procedural complexity. Following an act of Congress (1990), federal agencies are obligated to use mediation in certain civil cases before going to court. Many states within the U.S. passed laws requiring mandatory mediation.Alternative Dispute Resolution (ADR) is an “umbrella” term that refers to various methods used to resolve disputes without resorting to litigation. The basic premise of ADR is that litigation can and should be avoided whenever possible. ADR when applied to public sector seeks to resolve disputes equitably and expeditiously by keeping the process in the hands of their legal advisers and away from litigating attorneys, judges and courts (Nolan-Haley, 1992). Zack, (1997) avails alternative dispute resolution (ADR) as a technique which bring about workplace justice to more people at lower cost and with greater speed than conventional government channels and aid to obscure the backlog of cases at statutory dispute resolution institutions (courts) thus, assisting government agencies to meet their societal responsibilities more effectively.
The alternative dispute resolution (ADR) techniques of the most frequently used in the dispute resolution processes: Conciliation, Mini-Trial, Fact-Finding and Conference settlement of Alternative dispute resolution (ADR) refers to a set of practices and techniques aimed at permitting the resolution of legal disputes outside the court (Mnookin, 1998).Eaton & Keefe, (1999) asserts with the view of ADR has spread to avariety of contexts in respect of contract negotiations and non-contractual disputes, BinghamChachere, (1999) argues that in employment context, ADR hasexpanded to non-union settings and to public sector employment (both union andnon-union). Baker, (1999) argues that in the public policy context ADR is beingused in environmental disputes and regulatory negotiations. Bercovitch &Houston, (2000) corroborate the fact in their studies that ADR is also being used to resolveinternational conflicts and criminal justice cases.Alternative dispute resolution is a non-adversarial way of resolving disputes that is being increasingly used in the public and private sectors, especially in developed countries. ADR helps parties resolve their differences without resorting to litigation. Instead, it looks at needs, interests and solutions, and can promote healing. It is voluntary, timely, confidential, and based on mutual agreement. Unlike the conventional courts, it is designed to yield solutions that are adapted to the particular circumstances of individual cases, as it is about solving problems rather than imposing solutions through litigation.Mareschal, (2000) Assert the practice and technique of ADR comprises conciliation, fact-findings, mini-trail and conference settlement as processes by which a neutral person facilitates the resolution of legal disputes without formal adjudication to resolve collective bargaining and other employment related matters as part of the institutional framework of labor-management relations in the late nineteenth century in the U.S. method of handling labor disputes with the passage of the Erdman Act of 1898. ADR has been around for millennia and can be traced back as far as the ancient Egyptians, Greeks and Romans used ADR as did the popes and European kings during the Middle Ages. ADR has been a part of the national experience of the United States since colonial times. Both William Penn and George Washington were proponents of ADR. The modern ADR era is dated from the U.S. Supreme Court Chief Justice Warren Burger’s 1982 commentary on overcrowding in the Federal Court System (Martin-Miller, 2005).
ADR as a process or procedure for resolving a dispute other than adjudication by a judge in a statutory court and enjoys economic advantages over formal court proceedings being typically more expeditious and less costly than court proceedings and facilities can be integrated in the public sector (Lukasz, Alejandro & Campa, 2006). The term “Alternative Dispute Resolution” (ADR), is used generally to describe the methods and procedures used in resolving disputes either as alternatives to the traditional dispute resolution mechanism of the court or in some cases supplementary to such mechanisms.ADR arose largely (as stated earlier) the litigation process was and still is unduly expensive- in the long-run and especially prolonged as a result of judicial technicalities embedded in that method of dispute resolution.Apart from the fact that businessmen and women now prefer private resolution of their disputes to exposure to the machinery available in the glare of the regular courts, there is the advantage that settlement through ADR avoids what can be best described as brinkmanship and acrimony which often times arise in litigation. It reduces hostility and antagonism; but most importantly, ADR saves business relationships and encourages a continued cordiality between the parties. These are made largely possible because the procedure provides greater room for compromise than litigation.Wojkowska, (2006) avails ADR of informal justice systemsuse when referring to alternative disputeresolution mechanisms opted outside of the formal justice system which encourage more accessibility to culturally relevant remedies andprevalent throughout the world, especially in developing countries where ADR and access to justice “court-annexed” for the majority of populations in many countries of the world.
Bendeman (2006) advocate alternative dispute resolution (ADR) that isconciliation, fact-finding,conference-settlement and mini-trails are often regarded as a better option than the more conventional mechanisms for the settlement of labor disputes dues to the lower cost and greater speed of remedies and normally requires the consent and thus the commitment of the disputants involved with the potential of fortified a more successful and sustainable resolution to labour –management relations and other employment related matters in the public sector.ADR systems set up bythe national, state and government agencies with aimed purposes of resolving disputes informally ranging from land tofamily issues; community strives and conflicts by providing alternative disputes resolution without venturing to the use of normal litigationprocess(Mwenda, 2009).According to Akinbuwa,(2010)Alternative Dispute Resolution refers to a range of mechanisms designed to assist disputing parties in resolving their disputes without the need for formal judicial proceedings. They are those mechanisms that are used to resolve disputes faster, fairer, and without destroying on-going relationshipsamong parties.
Temba, (2014) the concept of alternative dispute resolution (ADR) includes all dispute resolution mechanisms other than theformal process of adjudication in a court of law and denotes a phenomenon other than a judicialdetermination, in which an impartial third party assists disputants in resolving issues between them. It covers a broadspectrum of approaches from party-to-party engagement in negotiations as the most direct way to reach a mutually acceptable resolution, to arbitration at the other end where an external party imposes a resolution.
ADR Mechanisms andProcedures in the Public Sector:
The common type of disputes/conflicts in the public sector emerge in various circumstance those that the greater impacts on employer-employees relations; employees; promotion and appointment, conditions of service, career advancement, staffwelfare services and rewards (incentives and benefits)and other hand of the employer is prevention of workplace disputes, stability and productivity of the public sector.
Conciliation and Conference Settlement
The conciliation method is often used in conjunction with other methods such as facilitation or mediation and the parties have already achieved some form of reconciliation and the relationship has been mended requiring only the details of the matter be resolve. Alternative dispute resolution (ADR) procedures are non-binding but mutually acceptable or negotiable resolutions to disputes and not equated to judgments but alternatives to judgment(Jean, 2003).TheConciliation(ADR) resolution of disputesas formalprocess involves building a positive relationship between the parties to a dispute. The conciliator (neutral party) bring the disputants together for settlement of dispute in an informal process on agreement on procedure and organizes it to reach mutually acceptable resolution and conciliator conduct a neutral meeting place process ofestablishment of communication, clarifying perception or misperceptions, dealing with strong emotions, building trust and openness of disputant, affirming the parties to work together(relationship), quick and inexpensive resolution of dispute by a non-judicial procedures with uses of the five (5) ADR strategies of common goal establishment, consensus building, joint problem-solving(future relations), outlets of emotions, partnering (commitment and consent) and parties involvement for simplicity and expeditions of the procedure and encourage agreement(acceptable resolution) among the disputants.And Conferences settlement(ADR) resolution of disputes involve a pre-trial conference conducted by a settlement judge and attended by representatives for the opposing parties (disputants) in order to reach a mutually acceptable resolution ofthe dispute the method is used in the judicial system and is a common practice in some jurisdictions and courts use this method of conference settlement in certain circumstances.
The role of a settlement judge toassists the parties procedural process in negotiating an agreeable resolution and judges (neutral parties)with focus on the five (5) ADR strategies of common goal establishment, consensus building, joint problem-solving(future relations), outlets of emotions, partnering (commitment and consent) and parties involvement roles and provide the disputants with specific substantive and legal information of disposition of the case might lead to court or stipulate constructive resolution for consideration in the public sector.
Mini-Trial and Fact-Finding:
Mini-Trial as (ADR) as structured dispute resolution method “court-annexed” and evaluative process in which the parties engage in procedural control to avail the dispute from the context of litigation to the context of a ADR and requires the participation of non-legal party representatives with the settlement authority (decision makers) as a panel with the neutral advisor (former judge) to examine and responsible for explaining and maintaining an orderly process of facts hearing and positions of disputants,evaluation of settlement resolution among disputants, agreement on procedure and resolve in more relaxed rules case presentation and an advisory ruling regarding a settlement(advisory opinion)rather than offering a specific resolution for the parties to refocus onfive (5) ADR strategies of common goal establishment, consensus building, joint problem-solving(future relations), outlets of emotions, partnering (commitment and consent) and parties involvement by presenting legal formalities that the disputants might face in an actual trail and brings the disputants into negotiation, helps to determine negotiation decisions and evaluation of their dispute and reach a settlement instead of taking extreme position.(Edelman &Carr, 1978) and facilitate agreement on procedure and resolve disputes oversees the panel to moderates the mini-trial hearing and then provides an evaluation and facilitates resolution between the parties for dispute settlement and rationale behind a mini-trial is that if the decision makers are fully informed as to the merits of their cases and that of the opposing parties they will be better prepared to successfully engage in settlement discussions and the parties agree on specific limited periods of time for presentations and argument within 90days and advisory opinion uses to narrow their discussions and focus on strengths and weaknesses of the case to the disputantsas the ultimate objective of a mini trial (OrojoOjomo 1990). And Fact-Finding(ADR) as process of non-binding dispute resolution to resolve a disputants technical issue when neutral fact-finder provides analysis after facts hearing presentations by the disputants and their expert (partisan experts) which conduct an independent investigation into the technical facts and issues as form of adjudicative and ADR neutral fact-finder to resolve factual issues and technical expertise is essentialto their determination, the parties may employ a third-party to inquire into the underlyingparticulars of a case. This form of ADR may be employed at the outset of a matter duringlitigation; indeed, some trial judges may order the parties to appear before a neutral fact-finderto resolve factual issues. In some jurisdictions a final decision maker like a trial courtjudge may be bound by the neutral fact-finder agreement is enforceable as a court order.