ALTERNATIVE DISPUTE RESOLUTION

Question 1

Advantages of Litigation

Answer 1

1. Decision reached are final and binding
2. Judgment is enforceable
3. Option of appeal
4. Often the only redress in criminal matters
5. Only option for interpretation of statute

Question 2

Disadvantages of Litigation

Answer 2

1. Time wasting
2. Expensive
3. Too strict and formal
4. No privacy
5. Dominated by lawyers and legal technicalities

Question 3

Advantages of ADR

Answer 3

1. Cheaper
2. Faster
3. Private
4. More open/frank with each other
5. Flexible

Question 4

What are the 4 types of mediation?

Answer 4

1. Arbitration
2. Conciliation
3. Mediation
4. Negotiation

Question 5

What is mediation?

Answer 5

Process where parties appoint a neutral third party, that does not take decisions, to explore how a dispute may be amicably resolved?

Question 6

Is an agreement reach y parties in a mediation enforceable?

Answer 6

Yes, only if:

1. the terms of settlement are reduced into writing and witnessed
2. and they are filed in court and made a consent judgement

Question 7

Advantages of Mediation

Answer 7

1. Mediator helps parties to reach a faster settlement
2. Usually win-win
3. Less formal
4. Privacy
5. Enforcement is easier

Question 8

Disadvantages of Mediation

Answer 8

1. Can end in deadlock
2. Mediators cannot summon witnesses
3. Privacy not absolute because of mediator

Question 9

What are the differences between mediation and conciliation?

Answer 9

1. Mediator doesn’t have expert knowledge
2. Mediation is not statutorily recognised
3. Mediator only facilitates the process of reaching an agreement

Question 10

What does ‘without prejudice’ mean when written on a document?

Answer 10

Such correspondence is not admissible in court as evidence against the party making such communication
NBA v Fawehinmi, S192 Evidence Act

Question 11

What is negotiation?

Answer 11

Process where disputing parties bargain amongst themselves in a bid to reach an amicable settlement.
There are no third parties but parties can be represented by their counsel.

Question 12

What must you consider when entering into a negotiation agreement?

Answer 12

One must consider Worst Alternative To Negotiation Agreement & Best A.T.N.A.

Question 13

Advantages of Negotiation?

Answer 13

1. Offers absolute privacy
2. Faster than litigation
3. Reflects parties wishes
4. Cheaper
5. No 3rd party influence
6. Preserves professional relationship

Question 14

Disadvantages of negotiation?

Answer 14

1. Possible deadlock
2. Agreement can be slow
3. May not be enforceable

Question 15

What are the two methods used by negotiators to achieve their objectives?

Answer 15

1. Positional Strategy (Win-Lose)

2. Problem Solving (Win-win)

Question 16

List 5 negotiation tactics

Answer 16

1. Puffs
2. Nibble
3. Threats
4. Deadline
5. Flattery
6. Peicemeal
7. Take it or leave it

Question 17

What are the stages of negotiation?

Answer 17

Opening stage
Bargaining Stage
Closing Stage
Execution Stage

Question 18

What governs arbitration?

Answer 18

Arbitration and Conciliation Act

Question 19

What is arbitration?

Answer 19

parties submit their dispute to an arbitrator to adjudicate and give a binding decision

Question 20

What is an award?

Answer 20

The decision of an arbitral tribunal/panel

Question 21

What does Section 31(1) of ACA say?

Answer 21

Arbitral award shall be recognised as binding and shall be enforced in court provided that no party to the agreement requests the court to refuse reocgnition

Question 22

What documents must you attach to an application for consent judgment of an arbitral award?

Answer 22

1. duly authenticated/ CTC of original award

2. Original arbitration agreement or CTC

Question 23

Advantages of Arbitration

Answer 23

1. Binding
2. Enforceable
3. Can summon witnesses
4. Arbitrator(s) usually experts

Question 24

What are the disadvantages of Arbitration?

Answer 24

1. Almost as rigid as litigation
2. Costly
3. often win-lose

Question 25

What are the pre-requisites for arbitration?

Answer 25

1. Agreement must be in existence containing an arbitration clause 2. Arbitration clause must be voluntarily agreed

Question 26

How must an arbitration award be given?

Answer 26

It must be in writing

Question 27

What is the sever ability doctrine?

Answer 27

Allows for the arbitration clause to be upheld despite certain clauses in the agreement being void. Arbitration clause is autonomous

Question 28

How do you enforce an award?

Answer 28

File a motion on notice supported by an affidavit praying the Court to enforce the award as a judgement of the Court S31 ACA

Question 29

What is the procedure for challenging an arbitral award?

Answer 29

File a motion on notice supported by affidavit exhibiting CTC of the award and the arbitration agreement to the HC within 3 months from the date of the making of the award. S29 ACA

Question 30

What are the stages of arbitral proceedings?

Answer 30

1. Commencement of proceedings 2. Preliminary Meetings 3. Pre hearing review 4. Hearing 5. Award 6. Enforcement

Question 31

What is conciliation?

Answer 31

Parties submit their dispute to a Conciliator for an amicable settlement. Governed by ACA

Question 32

Procedure for conciliation proceedings?

Answer 32

1. Conciliator requests a brief written statement describing the dispute from each party 2. he assists in an independent and impartial manner to reach settlement 3. after consideration he prepares a draft terms of settlement 4. If parties accept then formal terms are drawn up and if signed the terms become binding

Question 33

How many conciliators can you have?

Answer 33

Where parties appoint only one conciliator, the appointment shall be made jointly, where there are three, they shall each appoint one and appoint the third together Section 40 ACA

Question 34

What happens if parties don't agree with the terms of settlement drawn up during conciliation?

Answer 34

They may submit the dispute to arbitration or take action in court