ADR and Access to Justice
Around the world, civil courts are struggling to cope with a deluge of cases and spiralling costs.
Procedures intended to circumvent the problem have, in many cases, merely replicated it. Arbitration in particular has become at least as unpredictable, costly, slow and formalistic as litigation.
A variety of alternative dispute resolution (ADR) procedures have been devised which do not require the parties to incur the costs, delays and risks associated with litigation or arbitration.
Horses for courses
No single ADR procedure is appropriate for every type of dispute. The form of ADR needs to reflect both the nature of the dispute and the parties’ particular objectives and circumstances.
When this happens, huge savings in time, money and stress are possible – in theory, at least.
However, few ADR methods work as well as their proponents claim, mainly because their development has usually been unduly influenced by expediency and vested interests.
The concepts are mostly sound; it is their application which is often wanting.
Access not an option
For most Africans, recourse to the courts is simply not an option: the overwhelming majority of potential claimants cannot afford even to consult a lawyer, never mind prosecute a claim.
Even so, many African countries’ courts are chronically overburdened, notwithstanding widespread concerns about the independence, competence and integrity of the judicial process.
In many countries, access to justice is no longer an issue ‘just’ for the poor. It is also adversely impacting on business, trade and investment.
Africa’s long tradition of mediated dispute resolution is frequently cited by those touting supposedly modern forms of ADR as ‘the solution’.
However, legal models which may appear to work well in the social contexts for which they were designed do not always travel well. When transplanted without adaptation into alien contexts, foreign ADR procedures frequently give rise to even more problems than they were supposed to solve.
Invariably, governments, foreign investors, local businesses, communities and others all have very different views on what ‘access to justice’ means in practice.
For some, the problem lies in the accessibility of the procedures, particularly as regards cost. For others, it lies in the perceived inadequacies of the procedures themselves. Yet others are more concerned about the nature and enforceability of the available remedies.
Whatever one’s perspective, all the rhetoric about rights, responsibilities, accountability and governance will continue to fall on barren ground until and unless governments, donors and the private sector are prepared to inject more funds into ensuring greater access to justice.
We have an informed and sober appreciation of the various ADR procedures and we understand the reservations that different parties have – or should have! - about their application in African contexts.
We have addressed such concerns by adapting several of the more useful procedures, from dispute review boards to mediation, and by including a range of appropriate checks and balances.
We are keen to help to develop further progressive, practical initiatives in this field and warmly welcome collaborative ideas from similarly minded firms, groups and individuals.
Avoiding the arbitration trap
The boundaries of justiciability