• Methods under this mode include negotiation, mediation, arbitration and traditional
Image: SHISIA WASILWA
Alternative dispute resolution can be defined as the mode of settling disputes that does not entail the formal court process of litigation. There are various methods through which these could be done. These include negotiation, mediation, arbitration and traditional dispute resolution.
Negotiation involves the parties in a dispute coming together to find possible solutions to their dispute. This method requires parties that have a certain level of maturity as oftentimes, parties involved in a dispute do not see eye to eye.
Mediation involves a third party who pacifies the situation and offers possible solutions to the warring parties but does not determine the dispute. The parties themselves make the final determination. That brings the distinction between arbitration and mediation. In arbitration, there exists a third party, but in this case, the third party offers a solution.
The solution offered in arbitration, known as the arbitral award, may or may not be binding, depending on the agreement between the parties. It may also be challenged, whereby the process was unduly influenced.
Traditional dispute resolution (TDR) mechanisms are mostly centric on community elders or administrators, such as chiefs addressing disputes. The Constitution provides that TDR mechanisms must be applied in a manner that doesn’t contravene the Bill of Rights, is not repugnant to justice and morality and does not contravene any written law. This is commonly referred to as the repugnancy clause.
The repugnancy clause has been subject to profound criticism from some scholars, who argue that it is a manifestation of colonialism. This in the sense that African dispute resolution mechanisms are considered just or unjust in comparison with English laws, or laws enacted through the formal system inherited from the British.
However, those who support the repugnancy clause argue that it is properly constituted, particularly because TDR mechanism perpetuated patriarchy and disadvantaged women and girls.
Alternative dispute resolution mechanisms tend to face a major challenge when it comes to their enforceability. Sometimes parties to the dispute may disregard the settlement and either go to court to file a case or leave the parties in a stalemate. To deal with this mischief, parties have an option to move to court to record the settlement of the dispute. That way, the agreed decision will be enforced by the court.
Some of the advantages of alternative dispute resolution are that the methods are generally faster, inexpensive and tend to allow parties freedom to agree on a decision that best suits them.
As a general rule, alternative dispute resolution can only be used to settle civil matters. Criminal matters have to be referred to the criminal justice system to ensure that the offenders are punished to deter crime.
ADR is an area of law that is growing, and to be involved in some of the ADR processes, one must not be a legal expert. They just need to be good at bringing parties together and helping settle the dispute. It also aids courts in clearing case backlog.