This blog is written by Adeniyi Goodness Adedoyin, a Second-year law student of Obafemi Awolowo University

Due to the multi-faceted challenges associated with Litigation, Alternative Dispute Resolution arose with the sole aim of resolving disputes without the usual process of going to court.

The alternatives to dispute resolution include Arbitration, Mediation, Conciliation, Negotiation, and Expert determination.

However, only Arbitration and Mediation would be closely looked into.

ARBITRATION

Arbitration simply is a system whereby disputing parties agree to present their arguments and evidence to an impartial third party to settle their disputes which enforces a binding decision. This decision, binding on both parties, contains the signature of the arbitrator and is called an Award.[1]

The advantages of Arbitration are:

· It is less costly than litigation.

· It saves a lot of time, energy, and expenses.

· It offers the disputants freedom of choice, location, and representation.

· It is a decision (Award) that is binding.

MEDIATION

Mediation is a consensual process whereby a neutral third party is invited by disputants to make the resolution of their disputes easy. This mediator is only a facilitator without any binding authority Mediation differs from arbitration in the sense that it is not binding and it is more flexible.

The advantages of Mediation include

· Confidentiality

· Autonomy of disputants because of its nonbinding decision.

· Less costs and less time wastage

One thing to know about Mediation is that for it to be relied upon, it must be stated as a clause (Med-Arb clauses) in the contract, containing the signature of the arbitrator.

Now, moving on to the crux of the topic, how do cultural differences affect the effectiveness of Arbitration and Mediation?

It is certainly no doubt that Arbitration and Mediation have proved to be effective and it is still thriving, but one of the challenges facing it is cultural differences.

Some of these differences include:

· ROLE OF RANKING, HIERARCHY, AND RESPECT: Not all cultures have the same structure. While some have structures that are not hierarchically structured, most of them thrive on hierarchy.

In those cultures that are hierarchically structured, supposing that the arbitrators are younger than the disputants, they might be seen as figures of authority whose unbinding decisions are unchallengeable.

· EMPHASIS ON WIN-LOSE SITUATIONS: There are individualistic cultures as well as collectivistic ones. While individualistic cultures might be more comfortable with the adversarial nature of arbitration, it would be deemed dissonant by collectivistic cultures.

· ROLE OF POWER: In cultures where power is hierarchically structured, arbitration can put the weaker disputant at the receiving end, since an appeal is not guaranteed.

· DIRECT vs INDIRECT COMMUNICATION: Indirect communication involves using nonverbal methods to communicate. Cultures that use indirect communication would be reluctant to openly express themselves thereby hindering the success of the mediation outcome.

· POWER STRUGGLE: Disputants from different cultures have different means of power distribution thereby creating an imbalance of power and since the resolution is not binding, the weaker disputant is at a disadvantage and this does not uphold justice.

· LANGUAGE DIFFERENCES: Case studies have proved that language differences between cultures have, in a big way hindered the effectiveness of mediation. This is because not all the parties involved might be speaking the same language. Even the mediator can be from another culture and if an interpreter is involved, it is possible that he might not convey the disputant's words correctly.

· COMMUNICATION STYLES: Another hindrance to the effectiveness of mediation is that high-context cultures can rely on nonverbal cues and implicit communication which contrasts with low-context cultures which prefer explicit communication.

· NON-BINDING RESOLUTION: In cultures where decisions are hierarchically made, the mediator would find it disrespectful and may even consider it an insult if his decisions are not obeyed.

· PERCEPTION OF FAIRNESS: While individualistic cultures value independence and assertiveness, interdependence and harmony are held in high esteem by collectivistic cultures. This can influence how parties approach Arbitration and Mediation to present their cases

· DECISION MAKING: Parties may be reluctant to accept the decision of the arbitrator or mediator because some cultures make their decisions hierarchically while some prefer the consensus method.

Having highlighted the impacts of cultural differences on the effectiveness of Arbitration and Mediation, possible solutions for improvement in the cultural realm include:

First, since an arbitrator can arbitrate anywhere outside his country[2], he should therefore familiarize himself with the customs of the jurisdiction where he intends to arbitrate.

Also, mediators should be sensitive to power imbalances between parties with cultural differences This could involve creating a secure environment for the exploration of settlement options and for their respective voices to be heard.

Furthermore, mediators should brush up their skills by familiarizing themselves with different negotiation techniques of different cultures since they must assist the parties produce a lasting relationship.

In conclusion, In C.W MOORE words, “The mediator’s authority such as it is, resides in his or her credibility and trustworthiness, expertise in enhancing the negotiation process, experience in handling similar issues, ability to bring the parties together based on their interests, past performances or reputation as a resource person, and in some cultures, his or her relationship with the parties”, he emphasizes that although the mediator lacks decision making authority which makes it easy for the disputants to retain ultimate control of the outcome, the mediator still has influence and authority to convince the disputants.

It is then suggested that culturally sensitive neutrals i.e. arbitrators and mediators can bridge these gaps by tailoring their approach to the disputant’s background, being mindful of nonverbal cues by understanding the values at stake.

REFERENCES

1..CAP – Skills & Values: Alternative Dispute Resolution: Negotiation, Mediation, Collaborative Law, and Arbitration, Second Edition (9781531022921).

Authors: John Burwell Garvey, Charles B. Craver. Carolina Academic Press” https://cap-press.com/books/isbn/9781531022921/Skills-and-Values-Alternative-Dispute-Resolution-Second-Edition

2. IBA ARBITRATION COMMITTEE - NIGERIA

https://www.ibanet.org/document?id=Nigeria-country-guide-arbitration

3. Albert Fiadjoe: Alternative Dispute Resolution: A developing world perspective.

4. Mohamed M. Keshavjee: Islam, Sharia, and Alternative Dispute Resolution; Mechanisms for legal redress in the Muslim community.

5.” Effects of Differing Cultural Backgrounds on Dispute Resolution – SGR Law” https://www.sgrlaw.com/ttl-articles/877/

[1] “CAP – Skills & Values: Alternative Dispute Resolution: Negotiation, Mediation, Collaborative Law, and Arbitration, Second Edition (9781531022921). Authors: John Burwell Garvey, Charles B. Craver. Carolina Academic Press” https://cap-press.com/books/isbn/9781531022921/Skills-and-Values-Alternative-Dispute-Resolution-Second-Edition

[2] https://www.ibanet.org/document?id=Nigeria-country-guide-arbitration