Beyond Litigation: Making the Case for ADR in Nigeria

A long time ago, a man sued to recover a piece of land that was taken from him by an adverse possessor, who, ostensibly, had assumed that the owner would leave him be.

By the time I encountered the file sometime this year, the man had been dead for several years, and his children had inherited the case along with whatever else he left them. Nearly two decades on, and the matter had not been resolved. I have thought about that file more than most cases I have worked on, not necessarily because the facts were unusual, as similar cases on adverse possession are litigated every day, but because of the grossly extended timeline.

Nigerian lawyers trade stories like it casually, the way doctors trade stories about strange symptoms, because virtually everyone in the profession has at least a story about a case that has gone on far longer than necessary.

Now, I am not going to use this piece to relitigate what is wrong with our courts. That conversation is worth having, and while I do have views on it, some of which I have expressed to colleagues personally, it is one to be had another day.

What I do want to make the case for here is what a growing number of Nigerian lawyers and their clients have already concluded on their own: that alternative dispute resolution is not a fallback for people who cannot afford proper litigation.

On the contrary, one finds that they are frequently the more sensible choice from the outset.

There are three primary forms of ADR in Nigeria, namely arbitration, mediation, and conciliation, although the latter is now gradually fading into obscurity for reasons to be discussed subsequently.

Arbitration puts the dispute before one or more arbitrators chosen by the parties, who issue a binding decision much like a court judgment, except the process happens in private and the parties have real influence over who decides and how. Mediation is different in kind rather than degree; a neutral third party helps both sides negotiate their own resolution, and nothing is imposed on anyone who does not agree to it. Conciliation used to sit as its own middle category, a more active form of mediation where the conciliator can propose terms rather than only facilitate discussion, but the Arbitration and Mediation Act 2023 has folded conciliation into its statutory definition of mediation, so in practice Nigerian lawyers increasingly treat the two as a single track with different levels of intervention rather than as separate mechanisms.

The 2023 Act itself deserves more attention than it has gotten outside arbitration circles. It replaced the old Arbitration and Conciliation Act with a framework that fixes several of the older law's real weaknesses. For instance, where parties fail to specify how many arbitrators they want, the default is now a sole arbitrator rather than a three-member tribunal, a change that can materially reduce the cost of arbitration in smaller commercial disputes. Third-party funding of arbitration, long complicated in Nigeria by the common-law doctrines of maintenance and champerty, has also been given a clearer statutory footing.

The Act provides that those doctrines do not apply to third-party funding of arbitration, while requiring disclosure of the existence of the funder in appropriate circumstances. This potentially opens arbitration to claimants who might otherwise struggle to finance a legitimate claim. Most usefully for the mediation side, a settlement agreement resulting from mediation is now binding on the parties and enforceable in court as a contract, consent judgment or consent award, subject to the statutory requirements for relying on it, which removes the old worry that a mediated agreement was only as strong as the goodwill of the party who signed it.

Be that as it may, none of this matters if the mechanism to promote ADR never makes it into the contract in the first place, which is why the arbitration clause deserves more care than it typically receives. A number of Nigerian commercial contracts I encounter sadly either omit dispute resolution provisions entirely, leaving the parties to default to litigation, or include a clause so generic it invites argument over what it even requires. A well-drafted clause should ordinarily address the seat of arbitration, the number of arbitrators, the institution or rules that will govern the process, the language of the proceedings and, where appropriate, the law governing the underlying contract. '

These decisions are best made while the parties are still on good terms and have every incentive to be reasonable about them. Waiting until a dispute has already erupted to negotiate how it will be resolved defeats much of the purpose.

Nigerian courts, to their credit, have not simply left ADR to private contract. Civil procedure rules in a number of jurisdictions now incorporate case-management and ADR mechanisms designed to identify disputes that may be resolved without a full trial.

Under the Lagos State High Court Civil Procedure Rules 2019, for instance, a Case Management Conference follows the close of pleadings, during which the court may promote amicable settlement, encourage the adoption of ADR, and make referrals to the Lagos Multi-Door Courthouse or other relevant ADR bodies. The Case Management Conference stage is generally expected to be completed within three months of its commencement, subject to extension.

These developments signal that the judiciary formally acknowledges that a meaningful share of the cases before it do not need a full trial to reach a fair outcome and that building a structured system for them is pertinent.

The institutional side of the profession has moved in the same direction.

I was recently appointed as the first Vice President of the nascent Chartered Institute of Arbitrators and Mediators, an institution built specifically to raise the standard of ADR practice in Nigeria and to grow the pool of properly trained arbitrators and mediators available to handle the volume of disputes the courts cannot efficiently absorb. Bodies like this exist because the demand for competent ADR practitioners in Nigeria has outpaced the supply, not because arbitration is fashionable.

None of this means arbitration is without its own frustrations. Nigerian courts still intervene in the enforcement of arbitral awards more readily than practitioners would like, and the judiciary needs to strike a better balance between scrutinizing awards and respecting the autonomy the parties chose when they opted for arbitration in the first place. An arbitration clause is only as useful as a court's willingness to enforce what comes out of it, and that remains a live problem rather than a solved one.

If ADR is to become more than an attractive alternative in principle, a number of things need to change. Firstly, judicial training on arbitration and mediation should be built into continuing education for High Court judges specifically, not left to specialist conferences that most sitting judges never attend.

Also, state judiciaries across the country should be better resourced to develop and strengthen their own court-connected ADR infrastructure, rather than leaving the most developed systems concentrated in a relatively small number of jurisdictions.

Finally, lawyers and law firms drafting commercial contracts should treat the dispute resolution clause with the same seriousness they bring to indemnity and termination provisions, rather than pasting in boilerplate language nobody expects to need.

The gentleman referenced at the beginning of this article, whose case ultimately outlived him, did not choose litigation because it was necessarily the process best suited to his dispute. He chose it because, at the time, it was the only serious option on the table. Nigerian legal and commercial practice has more genuine choices available now. The work left is to ensure that lawyers, courts, and the businesses they serve stop treating those choices as an afterthought.