El interés social

a. One of the reasons for the choice ADR is time. ADR is quicker than the traditional judicial method. People prefer ADR to court process because the latter takes a long period of time before a dispute can be determined for possible resolution, while in most cases, due to the characteristic preferences, the court processes, accord positional ethos, achieving positive peace remains a difficult task – it often presents parties as gladiators or enemies;

b. Cost: ADR is cheaper, in spite of being faster. The cost of adopting the court process is enormous. For instance, A 5 year study conducted by Assistant United State Attorneys (AUSA’s) shows the prominent status of ADR in dispute resolution. During the period, 63% success was recorded in the ADR interventions, while estimated

$10, 700 was saved in litigation costs, and at least eight – nine hours of staff time, and six months of litigation time were also saved. Therefore, ADR remains the most effective (Senger, 26).

c. Participation: ADR affords the parties a great opportunity to take part fully in the whole peace process, through which a mutually acceptable agreement can be reached. The parties ask questions from themselves with shared feelings, exploring the possibilities for restoring hope and confidence between themselves (parties) in the actualization of dispute resolution. Here is a story culled from one of the works of the Association for Conflict Resolution, based in their United State of America:

One stormy autumn morning in September 2001, in a small Midwestern River town, 20-year-old Lee was driving his huge commercial truck, delivering milk. In a hurry to make his stops, he was driving slightly over the speed limit. Suddenly, the truck hit a wet patch on the road, hydroplaned and struck a passenger car head-on, instantly killing Nicole, the other driver, age 24. The lives of family and friends of both Nicole and Lee were changed forever by this unexpected tragedy. Subsequently, Lee was charged by the criminal justice system with a felony-negligent vehicular homicide. What options were there for Lee (his mother and fiancée) and the victims (Nicole) family members?

1. Lee could have pled not guilty and thereby diminished his level of responsibility and engaged in a lengthy, adversarial court process, with a skilled lawyer representing him, he may have pled to a lesser charge, or even gotten off completely.

2. Lee could have pled guilty, gone to court and received a court imposed sentence, which likely would have involved time in prison along with community service or other sanctions…

3. Lee could have pled guilty and been offered the opportunity to voluntary participate in a Victim Offender mediation/ Conference (VOM/C), with Nicole is surviving family members prior to sentencing.

In a rare case of collaboration and compassion, the families chose option three and participated in a Victim Offender Mediation / Conference (VOM/C). The conference ---, lasted several hours, --- Lee

agreed to help maintain Nicole’s gravesite and attend annual celebrations of Nicole’s life. Nicole’s family recommended no jail time and both families agreed to keep in contact – starting with a potluck picnic in a local park. A mutually acceptable agreement was signed and presented to the judge. (Raye and Roberts, 2004: 9).

ADR affords the disputing parties to discuss and debate on their differences and see the need to improve their relationship for mutual good and understanding rather than articulating a win-lose philosophy.

The above incident shows how the victim and offender can come together and discuss on ways to change their conflict situation to that of tranquility and mutual respect for each other’s needs.

3.2.3 Advantages of ADR

b. It is more cost effective. It is of course cheaper than the traditional alternative of court process;

c. It affords the parties opportunity to control the outcome of the peace process;

d. The parties agree without compulsion from the diplomatic framework through which their dispute can be resolved;

e. It tends to improve the relationships between the parties, creating a win-win situation for the attainment of positive peace;

f. It also considers the needs of the parties.

3.3.4 Forms of ADR

Negotiation: According to Pruitt, “negotiation is a form of decision making in which two or more parties talk with one another in an effort to resolve their opposing interest --- a process by which a joint decision is made by two or more parties” (Pruitt, 1981: xi -xii). Negotiation can also be defined as “Talks between conflicting parties who discuss ideas, information and options in order to reach a mutually acceptable agreement. Initially at least, negotiations may not be face – to face” (International Alert, 1996, 111: 53).

One of the underlying properties of negotiation is that process, which involves two or more parties, who are interested in preserving or improving a relationship that conflict has seemed to distort. Thus, negotiation can also be regarded as a verbal, interactive process that is targeted at building or remolding relationships through the mutual aspirations of the parties sharing a mutual destiny, striving to jointly reach an agreement or set of agreements on issues for mutual benefits. Negotiation involves any voluntary bargaining process in which the parties, articulate a shift from enmity to friendship, discern the

need to facilitate an escape exit from the threshold of positional imperatives – for instance, in an organization, the position of the workers may be, call for the sack of the Managing Director of the organization, for not articulating well the workers’ welfare at the board meetings. Here, ‘sack of the M.D.’ is the position of the workers, while these workers may have different ‘needs’ some of them clamoring for sack of the M.D. may be advancing such a position for their in ordinate ambition of becoming the successor of the M.D. For the better understanding of the subject matter, students are advised to see unit 4 of this module.

Have you read and understood the above-recommended unit? If not, see your tutorial facilitator or student counselor for professional assistance or guidance. Now, let’s go back to negotiation (subject in discussion). Negotiation dominates almost all fields of international relations, not only those which can cover the shaping of new law, but also the settlement of disputes (Henkins et al, 1982: 281). Henkins et al further argue that ‘the first stage of settlement is reserved to negotiation’ (ibid), Negotiation does not always involve the intervention of a neutral third party, which makes it different from other forms of ADR (Show, 1997: 751). The International Court of Justice has also throws its weight behind the relevance of negotiation in the peaceful settlement of dispute in the North Sea Continent Self Case Convention, and the court held that:

The parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition --- they are under an obligation so as to conduct themselves that the negotiation are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it (ICJ Reports, 1969, 3: 47).

In the German External Case, the World Court argued that an agreement to negotiate does not actually imply an obligation to reach an agreement. In the legality of the threat or the use of Nuclear Weapons, the World Court reemphasized on the Article VI of the treaty on the non- proliferation of nuclear weapons to pursue negotiations in good faith in effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on a general and complete disarmament under strict and effective international court’ (ICJ Reports, 1996).

On the disadvantage of negotiation, several scholars in the fields of peace and conflict studies as well as international law and relations, believe that negotiation is ‘not always a good method of settling

international dispute’ because its facts are difficult to be objectively ascertained (Malanczuk, 1997: 275). It also lacks the moderating influence of neutral third parties, and cannot curb ‘extreme claims’ by the contending parties especially when there is a strong bargaining power (ibid).

3.3.4b Stages of Negotiation Process

There are various stages through which negotiation can be facilitated. According to Albert (2004:1), these stages include:

i. Establish contact with other directly, by written words or symbols or through an intermediary;

ii. Create at least a minimally positive professional relationship;

iii. Identify topics to be addressed and determine how discussions will be conducted;

iv. Transmit both substantive information and messages about the type and strength of feelings;

v. Communicate about their desires, positions, or demands and possible needs and interests;

vi. Generate options and assess their validity;

vii. Seek to influence each other to obtain advantage or satisfaction;

viii. Create procedures and ritual for gaining final approval for agreements, and

ix. Develop ways to implement, monitor, and ensure compliance with understandings that have been reached”.

3.3.4c Strategies of Negotiation Process

There are three basic strategies of negotiation process. These include the following:

i. Competitive bargaining: This is also known as hard bargaining and distributive, position, zero sum, or win – lose bargaining. Here, the negotiation process or bargaining tends to be conducted through a framework of competition. The bargainers see the diplomatic process as competition, in which each of them strives to achieve victory. It promotes victor, vanquished’ relationship, as immediate benefits, not considering prominently the relevance of future relationships;

ii. Compromising (Cooperative) bargaining: This is also known as soft bargaining, win some – lose some or give and take bargaining. Here, a party strongly has a desire to maintaining a future relationship with the opponent. His bargaining principle is integrative and interest based, not minding to make concessions in order to hasten a mutual agreement with the other party. But it is worth – noting that such as

desperate bid to make quick agreement may be injurious to bargainer. A good example is the conflict between Nigeria and Cameroon over the ownership of Bakassi Peninsula. Gen. Gowon Administration made a rash of concessions to the Ahidjo Cameroon, in order to promote a mutual confidence through the Agreements between the parties. After collapse of Gown regime, successive administrations in Nigeria have refused to further honour these agreements because of what they have considered as the excessive nature of Gowon concessions, which reestablished the conflict situation that had long bedeviled the bilateral relations between Nigeria and Cameroon.

iii. Collaborative bargaining: This is also known as integrative or problem solving bargaining or interest or positive – sum or – win bargaining. Here, both parties creates avenues to explore possibilities through their collaborative efforts to achieve a win – win situation where both parties agree to give premium on their respective interests without any unnecessary compromise.