Africa and Alternative Dispute Resolution processes Sunday, Sep 23 2012 

Africa, as a continent has always resolved its disputes using alternative dispute resolution processes. This has been the norm, even before the formalisation of ADR at the Pound conference in 1976.  ADR has been part of the traditional communities, from negotiation, to mediation and conciliation. The traditional African community had minimal knowledge of resolution of disputes via the law courts, until the influx of western education.

In these communities, such as Nigeria and Ghana, the elders resolved disputes because of the notion, that they were the main people who were capable of resolving disputes.

As a paternalistic society, fathers and male elders determined how the communities were governed. In some cases, traditional rulers, usually a male member usually resolved disputes among its people. Due to the fact, the eldest male members of the communities were held in high esteem as well as revered. There rulings were seen as the final verdict, not subject to appeal. The traditional society in most countries such as Nigeria, Ghana, Kenya, and South Africa maximised the influence of the elder(s) and sometimes traditional rulers in decision-making, and at the end these communities where peaceful places to live in.

In traditional African communities, disputes were usually minor matters, although in exceptional cases, serious matters such as murder did arise and in such situations the elder or traditional ruler had to give a ruling .The beauty of the resolution of disputes by the elder(s), is based on the concept that the elder(s) know it all. In most circumstances, these assertions were proven correct. A Nigerian proverb which illustrates the power of elders in the African dispute resolution process is one that states ”what an elderly person sees seating down; a youngster is unable to see the same thing even upon climbing a tree”. For this reason, words from elders were respected because it was believed, they have seen it all and nothing is new to them.

In some aspects, the assertion that the African elder(s) know it all, in the dispute resolution process can be questionable. In some regards, this can be incorrect solely because it is only possible that the elder(s) or traditional ruler knows all that pertains to their area of experience and expertise, but to allude to the notion they know it all is simply incorrect.

The elders have been effective and efficient on the resolution of disputes in traditional African communities. Majority of disputes in the African communities were based on land and family disputes. Land was seen as the main influence of economic growth and human development. A significant number of men and women earned their living from the land, from tilling the land as farmers, to animal rearing. As the elders were seen as custodians of land, they were better placed to determine such disputes. On the other hand, family disputes were mainly based on number of women a man was married to, and some cases the legitimate and illegitimate children of a man. In these areas mentioned, it will be justifiable to say the elder(s) were the best custodians of justice in the dispute resolution process.

As the laissez-faire societies grew in size and complexity, the concept of impartiality in the dispute resolution process began to undergo a radical transformation in the traditional African communities. Notably, in communities were the powers of the Clan system became a big challenge. Especially, in a situation a disputant came from one Clan different from the other disputant. In such circumstances, the issue of impartial decision by the deciding elder(s) became one that was seen as controversial.

As a result, the law courts became imperative to have in the African communities. Purely because independence of the judge, for which impartiality is more or less guaranteed usually known as the hallmark of the court system, was seen as a mandatory requirement in any society. This concept of impartiality was seen as lacking in the traditional African communities; regardless of the fact a fair and just society was evident everywhere in those communities. Although, the elder(s) always promised to guarantee impartiality in the dispute resolution process, the law courts worked on the premise ” justice must not only be done, but must be seen to be done”. How do you explain to a disputant from a Clan, other than where the elder(s) is from, that the other disputant from the same Clan with the elder(s) will get justice in the dispute resolution process?

ADR is not new to Africa….

Concept of alternative dispute resolution and online dispute resolution Thursday, Sep 20 2012 

The continuous movement of people, goods and services have been hailed as the hallmark of the modern times. One embraced and encouraged by both public and private sectors of the society.

The flexibility ADR and ODR in resolving disputes cannot be underestimated, simply because of its universal acceptance, and cost effectiveness.

ADR deals with resolving disputes, purely to avoid litigation; while ODR is the use of processes and techniques in the resolution of disputes using information technology. ODR in recent years identifies mostly with consumer disputes in the form of e-commerce.

ADR relies on face to face contact for the resolution of disputes, while ODR relies obviously on internet-technology tools.

In view of the similarities  seen in ADR and ODR in the resolution of disputes, it comes as no surprise that these form of dispute resolution are both gaining momentum in both developed and developing countries. ADR is an accepted well established technique in the resolution of disputes. ODR, on the other hand represents the use of ADR processes and information technology. This is in the reliance in technology, usually the internet.

ODR has been instrumental in the resolution of consumer disputes within the private sector, though yet to be endorsed as a form of practice by mainstream governmental bodies. Major private institutions such as eBay, PayPal have both become pace setters of ODR in the resolution of disputes This is with an acclaimed use of the ODR systems in the resolution of consumer disputes in an upscale of over 60 million disputes annually.

Surprisingly, ODR remains a procedure that has failed to keep pace with the rapid growth in e-commerce. Interestingly, within Europe e-commerce’s growth has not impressed technology enthusiasts. Within Europe, where e-commerce growth has lagged behind, compared to some other regions 50% in UK, Denmark, Norway and the Netherlands reportedly bought goods or services over the Internet in 2011. However, in previous year 2010, only 5% of European consumers used any ADR process to resolve a dispute. In 2011, there was an increase in the use of ADR processes for the resolution, which has been seen as the rise in awareness and acceptability.

Similarly, only 9% of businesses reported ever using ADR.  This onward growth of ADR has had an impact on ODR. This has continued despite the fact that ODR represents an easy, affordable and simple way to resolve disputes that arise out of online transactions.  For consumers, ODR can provide redress for problems that come up when litigation is not a viable option. For consumers, it will definitely increase trust, improve reputation and allow for rapid and fair handling of complaints, unpaid invoices and other unwelcome business distractions.

ODR is the new frontier in dispute resolution in an internet age.

Do you think like I do, ODR has its place in the dispute resolution process?