JUDICIAL SETTLEMENTS OF DISPUTES

 CONTENTS:

1.0       Introduction

2.0       Objectives

• Main Content
• The Adjudicatory Method
• Non Adjudicatory Method

4.0       Conclusion

5.0       Summary

6.0       Tutor Marked Assignment

7.0       References/Further Readings

INTRODUCTION

In social interaction, conflicts are bound to arise and quite often the conventional judicial arrangement is not capacious enough or unable to resolve all disputes. Law, over the years, has striven to evolve an efficient means of resolving disputes in the modern time. However, few individuals and States may not be so disposed to take advantage of the existing legal frameworks. The methods, which the law has evolved, are of two categories namely adjudicatory and non-adjudicatory methods.

OBJECTIVES

In this Unit you will be able to understand the following:

• The meaning of dispute resolution
• The methods of settling disputes in the modern TIME
• That the role of a judge can be likened to that of an umpire in resolving a dispute to a logical conclusion
• That the adjudicator has to follow certain standard procedures or methods in resolving the disputes.

MAIN CONTENT

Adjudicatory Method:

This is a formal method of resolving disputes. It involves the appearance of parties and their witnesses before formal institutions or authorities such as the law court or tribunal established by law. Thus, adjudication in its legal sense connotes judicial settlement of disputes whether between individuals or between states, in a general sense, it refers to the process of settling disputes peacefully by anybody with authority to make a decision or award binding on the parties. The methods are usually set in motion through the lawsuit or litigation. It is important to note that a particular event that gives rise to a legal dispute before the court is usually made up of myriad of facts linked together like a chord. For the judge or adjudicator to resolve the dispute, he must first of all ascertain the facts of the case and then apply the law to the facts. Therefore, adjudication may be defined as the process of deciding matters in dispute by the decision of a court, tribunal, commission, or other body binding on the parties.

Non-Adjudicatory Method:

This method does not involve the appearance of parties before formal institutions or authorities, the calling of witnesses, the finding of facts and the apportionment of blame. Most industrial relations disputes are resolved by bargaining between the parties or possibly by mediation. Indeed, law also has to be malleable and aimed at soothing frayed nerves and reducing animosities and enhancing harmonious relations among hitherto disputing parties. This is largely the basic contribution of these para-judicial mechanisms for settlement of disputes to the Nigerian legal system. However, the non- ad judicatory method may not be done in formal institutions such as the law court, but that notwithstanding, since the law recognizes the method and lays rules for their operations.

Thus, the two main forms of non-adjudicatory methods of dispute resolution are:

• Reconciliation; and
• Conciliation

Reconciliation:

This is a process whereby the parties to a dispute confer with each other and reach an agreement on how to restore or bring back cordiality or harmony in their relationships. The only parties to the reconciliation are the disputants themselves.

Conciliation:

Conciliation denotes the action of bringing into harmony or effecting a settlement between conflicting groups or individuals. The process generally involves aboard, commission, agency, or some other groups which studies the facts, makes proposals to the disputants, and attempts to arrive at a settlement of the conflict. Nevertheless, the proposals are in the form of a recommendation and are not a binding award or judgment. The disputants are therefore free to accept or reject the findings and proposals as presented. Thus, the main distinguishing factor between conciliation and reconciliation is the difference in the number of parties involved. Here, a third party is involved. There are two main forms of conciliation namely:-

• Mediation;
• Arbitration;

Mediation:

In this type of conciliation, the third party called the “Mediator” rarely inquires into the facts of the case and does not attempt to apportion blame. Rather, he seeks to provide  an acceptable formula for compromise and harmonious co-existence between the parties. He merely offers suggestions on possible terms of settlement between the parties, which have no binding force in the sense that the disputants are left to decide whether or not to accept the suggestion. Thus, mediation has been defined by Oppenheim as the “direct conduct of negotiations between parties at issue on the basis of proposals made by the mediator”. Hence, it consists in an attempt by a third party to reconcile the opposing claims of the parties in conflict by making a non-binding proposal to that effect. In essence, mediation emphasizes the positive aspects of law. It enjoins on the parties to a dispute the need and benefits of maintaining law and order through a return to peace and incontestable status quo ante. Voluntary acceptance of the proposed settlement otherwise the process is arbitration.

Arbitration:

Here the third party known as an “arbitrator” probes into the facts of the case in a fair details and renders a decision on merit. He however avoids making an emphatic decision on who is right or wrong. Thus, arbitration according to Fewick, as distinct from other procedures of pacific settlement “is the submission of a controversy between states to judges of their own choice who are to decide on the basis of respect for law and whose award in the case is final.” What distinguishes arbitration from other forms of mediation and conciliation is that while decisions or award of the arbitrator(s) is final and legally binding, it is not binding for conciliators.

SELF-ASSESSMENT EXERCISE

Explain the methods of settling disputes in the modern time.

CONCLUSION

In this Unit, we have examined and fully discussed various methods of dispute resolution, such as the adjudicatory and non-adjudicatory – methods. We also  discussed the forms of non-adjudicatory methods namely, reconciliation and conciliation and mediation and arbitration. Thus, law over the years has striven to evolve efficient means of resolving disputes in the modern time.

SUMMARY

The facts of the case raise issues relating to the primitive method of resolving a dispute and continuous effort of man in the modern time to evolve an efficient means of conflict resolution. Disputes were resolved during the Middle Ages by proofs rather than trials such as trial by ordeal. The method was crude, uncivilized of the old.  Such methods  are no longer acceptable and have even been criminalized. Therefore, whichever method is used today is a more benign way of resolving conflicts.

TUTOR MARKED ASSIGNMENTS

• Define judicial settlement of disputes and distinguish between the adjudicatory and non- adjudicatory methods of dispute resolution.
• What do you consider as the best approach to resolve a dispute?

REFERENCES/FURTHER READING

Chite, R. E. (1942) – Conciliation: A Dictionary of the Social Sciences, London, Tavistock Publications.

Ejiofor, L. U. J., (2000) – Conciliation, Arbitration and Mediation in Nigerian Legal System, Nsukka, University Press.

Oppenheim, L.., (1952) – International Law, London, Longmans.

Sanni, A. O. ed., (1999) – Introduction to Nigerian legal Method, Ile-Ife, Kuntel Publishing Hous