An appraisal of Alternative Dispute Resolution and Online Dispute Resolution

Not unlike other areas of life, the legal sector is experiencing a technological influx, due to, but not limited to the fact that lots of transactions can be carried out with the click of a button. With the COVID-19 pandemic came the need for Online Dispute Resolution as physical interaction was reduced to none. This propagated the need for virtual rather than physical interaction, and became indoctrinated in the legal sector as well. Furthermore, it is no longer news that Arbitration has become a popular form of Alternate Dispute Resolution, as parties have oftentimes decided to opt out of the rigorous process of litigation. This article seeks to succinctly discuss the concept, forms and importance of Alternative Dispute Resolution giving particular reference to Arbitration, and also the concept and application of Online Dispute Resolution in commercial transactions of today

Introduction
Disputes are an ineluctable part of human interaction, likely to arise from economic, social or physical transactions. In order to resolve this conflict in a manner that would adequately propagate peace led to the Alternative Dispute Resolution initiative.

Alternative Dispute Resolution (ADR) is generally used to describe the method and procedures used to settle disputes either as alternative to the traditional disputes resolution mechanism of the court, or in some cases supplementary to such mechanism. There are several forms of ADR, which include: arbitration, mediation, and conciliation, to mention but a few.

Arbitration: Arbitration was defined in Nigerian National Petroleum Corporation v. Lutin Investment Ltd. & Anor as the reference of a dispute between not less than two parties for determination after hearing both sides in a judicial manner, by a person or persons other that a Court of competent jurisdiction.

Mediation: Mediation is not Arbitration. It is a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute, with the parties’ ultimate control of the decision to settle and the terms of resolution.

Conciliation: This is where an impartial third party assists disputing parties by driving their negotiations and directing them towards a satisfactory agreement. Oftentimes, the conciliator proposes the terms of settlement, not the parties.
It is pertinent to note that, arbitration, though a form of Alternative Dispute Resolution does not oust the jurisdiction of the court. This is because parties may choose to resolve the dispute by way of litigation or the other party may also waive his right to arbitrate depending on the intention of the parties in dispute.

Why alternative dispute resolution?
The laws governing arbitration, a form of ADR is provided for in the Arbitration and Conciliation Act. Section 15(1) of the Arbitration and Conciliation Act provides: “The arbitral proceedings shall be in accordance with the procedure contained in the Arbitral Rules set out in the First Schedule of this Act.” Furthermore, the Article 1 of the Arbitration Rules provides that:

“These Rules shall govern any arbitration proceedings except they where any of these rules is in conflict with a provision of this Act, the provisions of this Act shall prevail.” This is to the effect that arbitration agreements and proceedings shall be governed by the Act.

ADR enthusiasts agree that litigation is not suitable for all disputes, and not all disputes are suitable for ADR. However, the very essence of ADR: voluntariness and flexibility makes ADR a more acceptable way of resolving disputes in order to foster harmony.

The major reasons advanced for the dissatisfaction of litigation, which led to the propagation of ADR have been that the system was too expensive, sometimes costs of prosecuting a claim could exceed the amount claimed; it was too slow with cases often dragging on for years unresolved; it was too unequal, sometimes in favour of the wealthy litigant who could afford the costs; it was too incomprehensible to many and too adversarial, the rules of court were often ignored by parties and unenforced by courts. The many benefits of ADR includes but is not limited to the following: it’s flexible; it can be tailored to suit the specific needs of the dispute and the parties; it is a private and confidential process, particularly suitable for matters which involve trade secrets; it saves time and cost, essentially because the parties and the neutral third party dedicate time to address the dilute and there is little or no competition with other diaputes; it produces better results because parties are encouraged not to limit themselves to monetary damages but other creative solutions that meet their underlying interests.

Notwithstanding the numerous advantages of ADR, it does have its limitations particularly arising from it’s very nature as a voluntary and flexible process, and the lack of enforcement of ADR settlement agreements, and also in the lacunae in the Arbitration and Conciliation Act, which governs the application of some forms of ADR, like the problem of non-definition of some keywords like what is meant by ‘arbitral award’ in Sections 28 of the ACA, and what ‘place of arbitration’ seen in Section 16(1) of the ACA should be defined to mean. Another limiting factor is the fact that there is no room for Online Disputes Resolution anywhere in the Arbitration and Conciliation Act.

The concept of Online Dispute Resolution
The world is dynamic and technology is changing the environment of the law and Alternative Dispute Resolution in many ways. Litigation has, of recent, gone beyond the physical realm and fully into the audiovisual forms through the advent of technology.

This led to the emergence of Online Dispute Resolution (ODR)
For the purpose of clarity, it is important to distinguish between two similar concepts, which though not the same, complements each other: Online Dispute Resolution (ODR) and Online Alternative Dispute Resolution (OADR). ODR as defined by American Bar Association Task Force on E-Commerce and ADR is a broad term that encompasses many forms of ADR and court processes that incorporate the use of internet, websites, email communications, streaming media and other information technology as part of the dispute resolution process.

It involves various mechanisms like negotiations, mediations, early neutral evaluation, expert determination, adjudication, arbitration, litigation or a combination of any of these methods where parties may never meet ace to face, but would communicate solely online. ODR became popularized during the COVID-19 pandemic, where court sessions had to be held online because of the inability of litigating parties to physically meet.

On the other hand, Online Alternative Dispute Resolution (OADR) is restricted to the alternative dispute resolution process other than litigation done with the use of internet, email communication and so on, where parties communicate virtually.

What are the benefits of ODR?
The flexible nature of ADR, coupled with their remarkable technological features of the internet, makes ADR an appropriate instrument to resolve online conflicts. Some of these benefits are: It is time efficient: Online negotiation processes are more time efficient in the sense that the platforms for conducting such negotiations can be accessed at any time of the day and by parties wherever they may be, provided they have a strong internet connection. While offline dispute resolution may take weeks or months to settle disputes, Online Dispute resolutions could resolve disputes in days or hours.

It is cost effective: Cost is an important aspect of dispute resolution, as parties can negotiate prices that are suitable to them and pocket friendly. Exchange of documents, which can be done via email, costs next to nothing compared to other methods of passing information. This, among other things, reduces the amount spent on dispute resolution.

It is less rancorous: Unlike the traditional face-to-face method of offline resolution, online dispute resolution offers a means where is person can from the comfort of his home, attend these meetings or sessions instead of coming physically. In the case of people who live far away on different continents, it eliminates the need for their physical attendance, which could lead to exorbitant costs as explained earlier. This ensures smooth deliberations without any form of delay.

CONCLUSION
The world is rapidly becoming digitalized. Therefore, provisions have to be made to include transactions carried out online. Such modifications are necessary and should be incorporated into laws to give them legal backing. Online Dispute Resolution can be that viable tool if properly harnessed in appropriate cases.
Ifezie is a 300 level law student of the University of Nigeria, Nsukka.