LA FAMILIA FRENTE A LOS ESTUDIOS COMPLEMENTARIOS

While others have argued that arbitration is not and cannot be categorized as ADR. The argument has been that firstly when an award is rendered in arbitration recourse is made to the Court for its enforcement. The parties choose the applicable law, while in other ADR processes like mediation the process can only be concluded with the assistance of the parties to the process.

More so mediation is an interest based procedure¹⁵⁶.

We shall now examine Alternative dispute mechanisms as distinct from arbitration.

2.7.1 Conciliation

Conciliation is an alternative out of Court dispute resolution mechanism. To this end Conciliation has been described as; “a voluntary, flexible, confidential and interest based process. The parties seek to reach an amicable dispute settlement with the assistance of the conciliator, who acts as a neutral third party”¹⁵⁷. Here the conciliator meets with the parties separately and jointly in an attempt to resolve their differences.

2.7.2 Negotiation

Negotiation has been defined as;

A consensus bargaining process in which parties attempt to reach agreement on a disputed or potentially disputed matter. Negotiation usually involves complete autonomy for the parties involved without the intervention of third parties.¹⁵⁸

Negotiation can be seen as a process that leads to another process. In other words, it is not an end itself rather it is a means to an end. Here the parties are directly in charge of the

156 N Uche, International Commercial Arbitration in Practice Effective ADR or Just Exotic Litigation.

Corpus of Topical Legal Issues: Collection of Legal Essay Written in Honour of Justice ONU, (Kaduna:

Rogent Printing and Publishing Ltd, 2008) p. 24.

157 www.dispute –resolutionhamburg.com. Assessed on 4^th May 2018.

158 B Garner, Black’s Law Dictionary, (8^th edn, United States of America: West Publishing Co, 2004) p. 380.

proceedings without any third party intervening. Each party would present its case as strongly as it could to get a fair bargain at the long run.

2.7.3 Expert Determination

An expert is; “A person who through education or experience has developed skill or knowledge in a particular subject so that he or she may form an opinion that will assist the fact finder.¹⁵⁹

There are instances where the party‟s contract stipulates that any dispute arising from the contract shall be determined by an expert in that field. The named expert may not be skilled in arbitration. However, since the Arbitration and Conciliation Act has not provided for any qualification for an arbitrator the Act and the rules provided therein will be applicable to such expert determination in the arbitral proceedings.

2.7.4 Valuation

Valuation has been defined as “The process of determining the value of a thing or entity.

The estimated worth of a thing or entity”

Valuation however, can be likened to an expert advice in which experts are invited to carry out the task of valuation of the subject matter of the dispute to ascertain the actual value of it.

159 Ibid.

2.7.5 Certification

Certification has been defined as: “The act of attesting, the state of having been attested.”¹⁶⁰ Certification is usually rampant in building and construction contracts. Here the contract may stipulate that before the contract sum will be paid the work done must be certified by a structural engineer or architect. The person who does the certification is called the certifier.

However, where the certifier is jointly employed by the parties he can assume the position of the arbitrator. Where he is appointed by only one of the parties he cannot be called an arbitrator.

2.7.6 Mini-Trial

Mini-trial has been defined as;

A private voluntary and informal form of dispute resolution in which each party‟s attorney presents an abbreviated version of its case to a neutral third party and to the opponents representatives who have settlement authority.¹⁶¹

Mini-trial as a form of evaluation of the dispute and it helps the parties to better understand the issues in the dispute, which would be of assistance to them in negotiating settlement on an informal basis. Mini-trial usually takes the form of a short presentation of the issues by the respective in house lawyers of the parties who now sit together on the opposite side of the table facing disputants, or in the case of corporations, their chief executive decision

160 Ibid p. 36.

161 Ibid p. 36.

makers¹⁶². They are assisted by a neutral person who is usually an expert who plays an important role and acts as the facilitator of the party‟s negotiation.

Mini-trial is an advance mediation. The procedure is voluntarily entered into by the parties themselves.

2.7.7 Ombudsman

Ombudsman has been defined as “An official appointed to receive, investigate and report on private citizens complaints about the government”¹⁶³

Usually an ombudsman is appointed by the government to investigate and report back to the government on any complaint made by citizens against a government body. In Nigeria the ombudsman is the Public Complaints Commission. The Public Complaint Commission is a creation of statute and has its presence in all States of the Federation.¹⁶⁴

2.8 Validity of Arbitration Agreement