The Alternative Dispute Resolution Methods in Resolving Family Law Disputes in Nigeria

INTRODUCTION

Family disputes are unusual particularly because of the ties which exist between the parties involved. However, conflict may arise when family members have different views or beliefs that clash. The settlement of such disputes requires a resolution mechanism that not only decides the rights and obligations of the parties but addresses the causes of the dispute and preserves their relationships.

Alternative Dispute Resolution (ADR) is simply a process of initiating alternative methods and procedures of resolving a civil or commercial dispute without resorting to litigation, which can be expensive, cumbersome, and time-consuming. Ideally, ADR is usually resorted to before instituting a court action but subject to the circumstances of each case, it can be resorted to before judgment is given in a matter. If litigation is pending and the parties resort to ADR, the terms of the settlement reached by the parties would be brought to court and entered as a consent judgment.

Alternative Dispute Resolution mechanisms offer a more collaborative and less adversarial approach compared to Litigation. This is why it is of utmost importance whenever there is an issue or conflict in a family-whether nuclear or extended- to first consider ADR mechanisms and the last resort should be Litigation.

Similoluwa Adekanye

This article shall extensively discuss some Alternative dispute resolution mechanisms in resolving dispute in Nigeria, the best ADR mechanism in resolving family dispute in Nigeria, the importance of ADR in Family dispute and the potential challenges faced with the concept of ADR. Also, the following terms: Family, Family Law, family property, and Family disputes shall be explained for better understanding in the subsequent paragraphs.

1.1 CONCEPTUAL DEFINITIONS

In order to do proper justice to the topic, certain terms should be defined. The terms Family, Family Law, Family disputes and ADR shall be explained seriatim in the succeeding paragraphs.

1. Family: This is a concept that refers to a group of people that are connected by blood, marriage or adoption and share a deep bond of love, support and belongings. It is a special connection that brings people together and creates a sense of home and belonging.
2. Family Law: This is an aspect of law that deals with the law regulating the affairs of the family like marriage, divorce, child custody, family finances and family property.
3. Family Property: This includes any real or personal property owned by the entire family. These properties belong to everyone who is a part of the family and not to any single individual alone. It is however the duty of everyone in the family to protect such properties. This is why it is impossible to alienate a family property without the consent of the family head and principal members representing the rest of the family.
4. Family Disputes: This refers to a disagreement or conflict that arises within a family. It involves various issues such as family finances, inheritance, family property, custody of children, matrimonial issues etc. According to Section 114 (1) (a)-(e) of the Matrimonial Causes Act, matrimonial causes mean proceedings for a decree of dissolution of marriage; nullity of marriage; judicial separation; restitution of conjugal rights; jactitation of marriage; proceedings concerning the maintenance of parties to the proceedings; custody or guardianship of children of the marriage or their maintenance, etc.

1.2 ALTERNATIVE DISPUTE RESOLUTION MECHANISMS

The following are some of the Alternative dispute resolution mechanisms available in resolving disputes in Nigeria:

1. NEGOTIATION

Negotiation is a problem-solving process in which the parties to a dispute voluntarily come together either personally or by their representatives, to discuss their differences and attempt to reach a joint decision or resolution of the conflict on their own and without the involvement of a third party. This is usually the first step taken when conflict builds up. Negotiation is different from other types of alternative dispute resolution mechanisms as no third party is involved.

2. CONCILIATION

Conciliation as an alternative dispute method involves a neutral third party who can give an opinion or suggestion. It is a system of ADR where a third party known as the Conciliator uses his best endeavours to bring the disputing parties to a voluntary settlement of their dispute. Conciliation is regulated by the Arbitration and Mediation Act (AMA) of 2023.

3. ARBITRATION

Arbitration is regulated by the Arbitration and Mediation Act (AMA) of 2023 and also regulated by the Lagos State Arbitration Law, 2009. Arbitration is the most initiated method of ADR where parties to a dispute submit to a third party called an Arbitrator or arbitral tribunal for the resolution of their dispute.

The decision of the Arbitrator or arbitral panel must be signed by the Arbitrator(s) or a majority of them called an award, and it is binding on the parties and enforceable by the courts. After the final award is made and issued to the parties, the arbitral proceeding is deemed to be terminated as provided in Section 48(1) of the Arbitration and Mediation Act of 2023.

Also, by virtue of Section 57(1)(2) of the Arbitration and Mediation Act of 2023, an arbitral award is recognized as legally binding on the parties and is enforceable by the court on an application in writing. The application is accompanied by:

• a duly authenticated original award or a duly certified copy of it;
• the original arbitration agreement or a duly certified copy of it.

Where these conditions are satisfied, then by leave of court, the award shall be enforced in the same manner as a judgment or order to the same effect.

Where parties before marriage enter into a prenuptial agreement and inserts an arbitration clause to aid them resolve any dispute that may arise in their marriage, it is the position of the law that both parties to such an agreement that contains an arbitration clause must first abide by the arbitration clause before going to court. When a party to an arbitration clause in an agreement proceeds to court contrary to the arbitration clause, the other party can apply for a stay of proceeding, and the court, upon the fulfilment of the relevant conditions will stay the action as provided by Section 5 of the Arbitration and Mediation Act of 2023. However, such party seeking for stay of proceedings must have taken no step in the proceedings[1].

Arbitration, just like litigation, is not well suited for the resolution of marital problems. What is suitable in resolving marital problem is Mediation. Marriage mediation was developed to practically and effectively deal with conflicts between couples. In jurisdictions where it has been embraced, it has proven effective in reconciling differences between couples and saving their marriages from divorce. This usually involves resolving the lack of communication and other issues which are the root causes of the conflicts between the couple. Even in cases where the marriage has broken down irretrievably and couples insist on divorce, the mediator can help the couples amicably resolve issues of child custody and support, and help the couples maintain ties with each other after the divorce.

4. MEDIATION:

This is another means of alternative dispute resolution in settling family disputes. According to Black’s Law dictionary, mediation is a method of non-binding dispute resolution, involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution. Also, by virtue of Section 91(1) of the Arbitration and Mediation Act of 2023, Mediation is regarded as an alternative dispute process in which a neutral and impartial third party called the mediator is invited by the disputing parties to facilitate the resolution of the dispute by the self-determined agreement of the disputants. The mediator facilitates communication, promotes understanding, focuses the parties on their interests, and uses creative problem-solving techniques to enable the parties to reach their own mutual settlement/agreement. The mediator is usually jointly procured by both parties and the process is voluntary as the parties are not under any obligation to accept the suggestions of the mediator.

Settlement of Family Disputes through Mediation.

Marriage mediation is not only well suited for resolution of divorce claims, it is also effective in the resolution of marital problems. These problems include lack of communication, neglect, violence, custody of children, abandonment, nonperformance of duties, denial of conjugal rights, separation and in extreme cases, divorce among others. These problems continue to face many couples and lead to lack of sense of fulfilment and satisfaction.

Mediation has evolved into a significant and effective resolution mechanism. The adoption of mediation for the settlement of all kinds of disputes has been on the increase. This is because of its effectiveness and the many benefits it offers the parties. In the same vein, mediation is suitable and effective for the resolution of family disputes such as child custody, disputes arising over alienation of family property, family business, family finances, inheritance etc. The branch of mediation which is concerned with the resolution of family disputes is called ‘family mediation’.  

Marital mediation however provides couples the chance to discuss these problems and reach mutually agreed solutions. Marital mediation is a practical and beneficial method for couples to communicate with each other about the issues affecting their marriage and receive helpful input from the mediator, which will aid them in understanding the issues and resolving them.

Mediation for Family Business

Family-owned businesses are super common in Nigeria, and conflicts can often arise when it comes to running them.The conflict may be due to inequality in contributions or benefits, succession battle, divorce or conflict of interest. Mediation is a great way to address these conflicts and find resolutions that work for everyone involved. Mediators help identify the interests and goals of family members and facilitate negotiations to reconcile their differences. This helps ensure fairness, preserve relationships, and avoid the high costs and lengthy process of litigation. 

Mediation in family business help ensure equity and fairness in the sharing of the business revenue and property. The mediator will also ensure that the divorce does not adversely affect the continuity and operation of the business. Mediation has proven itself as an effective and satisfactory means of settling disputes pertaining to family-owned businesses. It saves cost and the time of the parties unlike litigation which costs huge amount of money and lasts for a long period of time.[2]

Also, mediation ensures that the interests of parties are accommodated unlike litigation in which one party wins all and the other party loses all. Instructively, the most important benefit which mediation offers in regards to disputes between family members is the preservation of the relationships between them. Actions in respect to family business is usually contentious and the end result is the severance of the relationships between the parties[3]. Mediation therefore helps parties avoid such situation.

2.1 IMPORTANCE OF ALTERNATIVE DISPUTE RESOLUTION IN FAMILY DISPUTES

The importance of Alternative Dispute Resolution (ADR) in resolving family dispute are;

1. It provides a more collaborative and less adversarial approach to resolving conflicts, which can help preserve relationships within the family.
2. It offers privacy and confidentiality which allows the members of the family keep their personal matters out of the public eyes.
3. ADR mechanisms like Mediation can be more cost effective and efficient compared to traditional litigation, saving both time and money.
4. ADR also promote open communication, understanding, and the potential for mutually satisfactory resolutions in family disputes.
5. Preservation of the relationship between the parties- Most ADR has a win-win situation on both sides of parties to the dispute, as it preserves and promotes friendliness among parties – most parties to litigation do not return as friends even in matrimonial proceedings. And in the commercial area of law, ADR is most relevant as there might still be a need to continue the business relationship.
6. The courtroom where litigation is carried out is usually tense. For the lawyers, it is difficult, there are a lot of rules and procedures which must be followed, and also for the layman, it is extremely difficult. An ADR session is more of a business meeting which is voluntary and can be fixed at any time by the parties.
7. The parties to the dispute can determine the Coram. This implies that they determine the mediator or arbitrator or conciliator who will preside over their case, but where they fail to agree, there are provisions of the law for such appointments to be done either by the court or an agency.
8. ADR processes are parties driven. Parties can determine the time, venue, and pace in the ADR process, unlike in litigation where parties are not involved. It is controlled by the court.

2.2 CHALLENGES OF ALTERNATIVE DISPUTE RESOLUTION IN RESOLVING FAMILY DISPUTE.

ADR is now pivotal to the Nigerian Legal System. Section 19(d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), provides for the settlement of disputes by Arbitration, Mediation, Conciliation, Negotiation and Adjudication. Order 19 of the Federal High Court (Civil procedure) Rules of Nigeria provides for supportive court interventions in arbitral proceedings, High Court Civil Procedure Rules of various States also provide for reference of cases to ADR, for example, Order 19 and 28 of the High Court of the Federal Capital Territory and Lagos State Civil Procedure Rules, respectively. Rule 15 (3)(d) of the Rules of Professional Conduct for Legal Practitioners mandates Lawyers to attempt an alternative dispute resolution before bringing any matter before the Court for hearing.[4]

Although our laws recognize the importance of adopting any of the mechanisms of ADR for the resolution of conflict or disputes, the process is not without its challenges. Below are some challenges hindering the growth of ADR in resolving family disputes in Nigeria:

1. Negative Perception and Attitude of Lawyers or Parties’ Representatives

A major challenge are Lawyers who see Litigation as a means of generating surplus income, they discourage settlement out of court simply because it’s not exactly financially beneficial to them. A matter being transferred to the Court will result in the Lawyer obtaining appearance fees, filing fees and other billable services. Hence, we find that clients are wrongly advised by their Lawyers or representatives to resist compromises during ADR proceedings so as to have the matter transferred to the Court for another hearing.[5]

2. Lack of Awareness on the Subject

ADR has not assumed a significant status in our legal culture as seen in U.S.A or England. This is due to the fact that the benefits derivable from ADR and its successes so far has not been made known to all. This issue will always be a clog to the success of ADR in Nigeria.[6]

3. Non-Binding Nature of ADR

The non-binding nature of ADR such as mediation, negotiation and conciliation sometimes render the proceedings pointless as the parties can still resort to the court to reach a binding decision on their behalf[7]. Because of this, most ADR processes are not result-oriented unless parties voluntarily enter into settlement agreement without this, the end result isn’t final.

4.    Failure to recognize ADR in some areas

  In matrimonial cases, ADR cannot be used to resolve matters like the dissolution of marriage, nullity of a void marriage, and restitution of conjugal rights. This area is left for the court to decide just like Criminal matters, issues pertaining to Election petition, interpretation of law, statutes or document etc.

However, regardless of the challenges mentioned above, ADR is still experiencing growth in Nigeria as evidenced by the provisions of the aforementioned statutes and the establishment of the Lagos Multi-Door Court House; a Court House created for the purpose of settling disputes by ADR. Today, most civil and commercial disputes are resolved through ADR hereby decongesting the court of a number of cases.

CONCLUSION

Adversarial means of marriage divorce and family settlement is quite tedious and leaves an unforgettable memory with the parties even after the divorce. It is best to separate through any of the mechanisms provided in this article as it helps to maintain and keep a friendly relationship between the parties which will in turn have a positive impact on the lives of the children if any.[8]

It is therefore of utmost importance that as the society evolves, there is always a need for the Law to catch up with its pace. Alternative Dispute Resolution is a process, viewed as a way of improving access to justice for members of the public through its flexible, less expensive and speedy proceedings as opposed to the lengthy and time-consuming court trial. It is only rational that this means of resolving dispute is fully embraced.

FOOTNOTES:

[1] Enyelike v Ogoloma 14 NWLR (Pt. 1107) 247 (2008)

[2] Usulor Chukwuebuka “An exploratory study of family Mediation in Nigeria” Accessed on the 28th day of January, 2024.

[3] ibid

[4] A.F. Adenekan, Esq “Alternative dispute Resolution in Nigeria”  https://www.michaelmaschambers.com/insight-page.php?i=9&a=alternative-dispute-resolution-in-nigeria. Accessed on the 27th day of January 2024

[5] A.F. Adenekan, Esq “Alternative dispute Resolution in Nigeria” https://www.michaelmaschambers.com/insight-page.php?i=9&a=alternative-dispute-resolution-in-nigeria Accessed on the 27^th day of January 2024.

[6] ibid

[7] ibid

[8] https://elegalonline.com/using-adr-to-reach-family-settlement-in-family-dispute-in-nigeria/ Accessed on the 21st of January 2024.