The National Alternative Dispute Resolution Regulatory Commission Bill: Whose Interest Does It Serve?

It was Andrew Johnson, the 17th President of the United States who said that ‘Legislation can neither be wise nor just which seeks the welfare of a single interest at the expense and to the injury of many and varied interests’. This truism can be said to be descriptive of the Bill presently before the National Assembly to establish the National Alternative Dispute Resolution Commission, which did not consider inputs from stakeholders from conception until this time having been passed as law by the lower legislative chambers and is in the process of getting the assent of the upper legislative chambers. The Bill which has scaled through the House of Representative and presently before the Senate, seeks to establish a Commission with the responsibility to regulate through the process of accreditation, all Alternative Dispute Resolution bodies and institutions engaged in the practice, training, education or skills acquisition in alternative dispute resolution mechanism and to develop and maintain relations with international Alternative Dispute Resolution bodies and organisations with a view to attaining best international standards and practices in the field of Alternative Dispute Resolution, amongst other things. The Bill if passed into law seeks to create Alternative Dispute Resolution Centres in States of the Federation to promote and co-ordinate the practice and use of Alternative Dispute Resolution in the States of the Federation. See sections 7(i) & (vii). The letters of the proposed law sound nice to the undiscerning reader but the bill in a nutshell seeks to empower the government to regulate the private rights of citizens to resolve their disputes by their own methods.

Alternative Dispute Resolution refers broadly to methods through which parties may resort to resolve their disputes through private means. This may include negotiation, mediation, arbitration, and other hybrid processes. The fundamental features of arbitration and most other alternative dispute resolution mechanisms are that it is an alternative to national courts, it is a private mechanism for dispute resolution, it is selected and controlled by the parties and it is a final and binding determination of parties’ rights and obligations. The bit on finality of determination of the parties rights however would seem to apply to only arbitration. Thus if parties agree to resolve their disputes by arbitration, the parties have accepted that not only will the parties resolve their disputes through that means but also that they will accept and give effect to the determination of the arbiter they have appointed.

Arbitration like the other forms of Alternative Dispute Resolution (ADR) is an alternative to the national courts. National courts are a manifestation of state power and the responsibility of the state to ensure that courts exist, that appropriately qualified judges are appointed and that there are procedural rules to regulate the basis of jurisdiction and the conduct of cases before the court. Arbitration as known and practised globally is not a national court procedure. When parties have agreed to arbitration they remove their relationships and disputes from the jurisdiction of state courts.

In arbitration like other forms of ADR, disputes are resolved in a private system agreed between the parties subject to certain safeguards. Also very fundamental in arbitration is the fact that it is chosen by parties. Party autonomy is the ultimate power that determines the form, structure, system and other details of arbitration. National arbitration laws only seek to give effect to, accentuate, and support the agreement of the parties.

Accreditation of Arbitration and ADR bodies and institutions engaged in practice training, education or skills acquisition in alternative dispute resolution mechanisms as the bill seeks to do will fundamentally amount to the meddling by state in the private rights of citizens to resolve their disputes by their own methods. Whilst formal training may enhance the ability of an arbitrator in resolving disputes that would not be successfully challenged in national courts, the arbitrator does not as of a rule require formal training to be able to act as such. As practised globally, where the issues for determination are those of fact, personal qualities may become more relevant in choosing an arbitrator than professional qualification. Whereas where the issue for determination in a dispute is one that is technical, requiring special expertise, the possession of such special skill would make the arbitrator’s job easier, but it must be noted that arbitrators do not have to be certified to be appointed, so long as it is the choice of the disputants. It would therefore be preposterous for our law makers to envision a situation whereby arbitrators have to be accredited by a commission.

How do you for instance regulate a negotiation which is basically formal discussions between parties who are trying to reach an agreement; or even mediation which is the facilitation of these discussions by a third party with a view to helping the parties reach an agreement? The absurdity in this is laughable and it is no less so in Arbitration for indeed it is historically ingrained in our custom for arbiters to be approached by disputants to help them resolve their disputes. The very idea of government intervention in citizen’s right to resolve their disputes in the manner envisioned by the proponents of this bill is absurd in every way, shape or form.

If this monstrous bill is allowed to be passed into law it would appear to be hindering