DISPUTE resolution means to conclude an action, means to gain a decision, means to gain a determination, means to gain an outcome, means to obtain findings, and means to resolve an action. Simply put, Dispute Resolution is a mechanism, strategy, tactics or skill adopted to get an outcome, solution or position for or over a disagreement or misunderstanding. Since disagreements are as constant as agreements in man’s life, means of settling disagreements or disputes have been evolved over the years and are still evolving.
People often use the term dispute and conflict interchangeably. Although, a select group of scholars perceive the two terms as one and the same thing, majority are of the view that although they may share some elements, they are different. Therefore, a brief explanation is provided hereunder.
While it may be difficult to immediately recognize the difference between conflicts and disputes, many scholars and experts make a point to differentiate the two. Although there is no common consensus, there are several interesting approaches to consider in analyzing the differences between the two terms. These include the following:
1. Time Frame
The scholar John Burton makes a distinction between the two by suggesting that disputes are short-term phenomena, while conflicts are long-term problems.
2. Negotiation
Further, Burton suggests that a critical distinction between the two is that conflicts, unlike disputes, manifest themselves in issues that are seemingly non-negotiable.
3. Connectivity
A useful way to consider the two are as a larger umbrella of conflict, under which smaller, and more short-term disputes occur.
4. Needs
Disputes are usually centered on the fact that the needs of one or two parties are not being met. The resolution of this problem can usually resolve the specific dispute at hand and thereby not degenerating to conflict.
5. Values
Conflicts are often centered around more difficult topics. A conflict often hinges on high-stakes moral values that aren’t easily negotiable.
Over the years, various means were adopted to resolve such disputes. One of such is the use of Brute Force (BF) by the two dissenting individuals to settle their disputes. Then, there is the mobilisation into battle by the individuals, families, clan, ethnic group, race or the community sympathetic to either side, otherwise called Trial By Combat (TBC). As time goes on, the belligerent parties started submitting to trial by an independent umpire as opposed to trial/ TBC which held sway called Court Adjudication (Disputes tried by a Judge sitting alone or with a jury). Nowadays parties have further realised that disputes can even be better resolved by parties sitting down together with or without an umpire.
In the course of this treatise we would look at the above submissions under the following methods or mechanisms for Dispute Resolution:
1. The use of BF to settle disputes
2. The use of TBC method
3. Trial by a Judge alone or with Jury, and
4. The use of alternatives to the foregoing (Alternative Dispute Resolution/ADR, Online Dispute Resolution/ODR, Mobile DisputeResolution/MDR)
1. The use of brute force to settle disputes
This entails the excessive use of physical human strength, talent, skill or any natural endowment deployed by an individual with or without the intermediary of an object to subdue ones opponent or adversary or threat of its use to put to rest any contention over a particular subject matter. The consequence of such deployment of physical force which usually results in violence could result in death, incapacity, grievous bodily harm, injury or instilling fear sufficient enough to deter the other party from further claim to the subject matter of the dispute.
Both historical/socio-anthropological and theological evidence indicates that use of Brute Force to settle disputes is the oldest method of resolving disputes used by man. According to Lucius A. Seneca, man should always “Consider, when you are enraged at any one, what you would probably think of is if he should die during the dispute.”
This is based on the belief that “in any dispute, each side thinks it’s in the right and the other side is demons.” Most of the time, the root cause of such reaction is uncontrolled anger which leads to rash and hasty decisions, leading to irrationality and unreasonable measures taken as exemplified by the theological story of Cain and Abel below.
We would however look at versions of both the Holy Bible and the Holy Quran as follows:
The Biblical Version
It is stated that the almighty God himself having not approved of the stance and behaviour of Cain cautioned him thus in Genesis 4:6-7
“Why are you so angry? the Lord asked Cain. Why do you look so dejected? You will be accepted if you do what is right. But if you refuse to do what is right, then watch out! Sin is crouching at the door, eager to control you. But you must subdue it and be its master.”
However, Cain was not able to control his anger and be its master as directed. As Lucius A. Seneca said anger is like an acid that can do more harm to the vessel in which it is stored than to anything on which it is poured.
Although he bears the distinction of being the first human child born on earth, regardless, he is also remembered in infamy as the first murderer on earth. His brother, Abel, the second son born to Adam and Eve, was his unfortunate victim. Abel, the first martyr in the Bible, was a shepherd. Very little else is known about him except that he found favour in God’s eyes by offering a pleasing sacrifice. When Cain’s offering did not please God, he (Cain) became angry and killed his younger brother.’
The manner of Abel’s death was the most cruel conceivable. Not knowing what injury was fatal; Cain pelted all parts of his body with stones, until one struck him on the neck and inflicted death: a classic example of the use of BF to settle disputes.
Although, as evidenced in the verses above, Abel had no disagreement with his brother, but was just envious and jealous for having done what is proper and then found favour with God. Same can also be said of lingering disputes and conflicts that we have today.
The Quranic Version
In the Quran, it is almost the same narrative. This is what the Quran said:
But recite unto them (i.e. Prophet Muhammad (SAW) was directed to recite to his followers) with truth the tale of the two sons of Adam, how they offered each a sacrifice, and it was accepted from the one of them and it was not accepted from the other. (The one) said: I will surely kill thee. (The other) answered: Allah accepteth only from those who ward off (evil). Even if thou stretch out thy hand against me to kill me, I shall not stretch out my hand against thee to kill thee, lo! I fear Allah, the Lord of the Worlds. Lo! I would rather thou shouldst bear the punishment of the sin against me and thine own sin and become one of the owners of the fire. That is the reward of evil-doers.
But (the other’s) mind imposed on him the killing of his brother, so he slew him and became one of the losers. Then Allah sent a raven scratching up the ground, to show him how to hide his brother’s naked corpse. He said: Woe unto me! Am I not able to be as this raven and so hide my brother’s naked corpse?
And he became repentant. For that cause we decreed for the Children of Israel that whosoever killeth a human being for other than manslaughter or corruption in the earth, it shall be as if he had killed all mankind, and whoso saveth the life of one, it shall be as if he had saved the life of all mankind. Our messengers came unto them of old with clear proofs (of Allah’s Sovereignty), but afterwards lo! Many of them became prodigals in the earth.
The Sociological Perspective
The Paleolithic (US spelling; also spelled Palaeolithic) Age, Era or Period is a prehistoric period of human history distinguished by the development of the most primitive stone tools discovered (Grahame Clark’s Modes I and II), and covers roughly 99% of human technological prehistory. It extends from the earliest known use of stone tools, probably by hominins such as australopithecines, 2.6 million years ago, to the end of the Pleistocene around 10,000 Before Present (BP) .
The Paleolithic era is followed by the Mesolithic. The date of the Paleolithic-Mesolithic boundary may vary by locality as much as several thousand years. During the Paleolithic, humans grouped together in small societies such as bands, and subsisted by gathering plants and fishing, hunting or scavenging wild animals. The Paleolithic is characterized by the use of knapped stone tools, although at the time humans also used wood and bone tools.
Humankind gradually evolved from early members of the genus Homo such as Homo habilis-who used simple stone tools-into fully behaviorally and anatomically modern humans (Homo sapiens) during the Paleolithic era. Some sources claim that most Middle and Upper Paleolithic societies were possibly fundamentally egalitarian and may have rarely or never engaged in organized violence between groups (i.e. war) although individual violence to settle disputes as in the case of Cain and Abel usually occur.
Like contemporary egalitarian hunter-gatherers such as the Mbuti pygmies, societies may have made decisions by communal consensus decision making rather than by appointing permanent rulers such as chiefs and monarchs. Raymond C. Kelly speculates that the relative peacefulness of Middle and Upper Paleolithic societies resulted from a low population density, cooperative relationships between groups such as reciprocal exchange of commodities and collaboration on hunting expeditions, and because the invention of projectile weapons such as throwing spears provided less incentive for war, because they increased the damage done to the attacker and decreased the relative amount of territory attackers could gain.
However, other sources claim that most Paleolithic groups may have been larger, more complex, sedentary and warlike than most contemporary hunter-gatherer societies, due to occupying more resource-abundant areas than most modern hunter-gatherers who have been pushed into more marginal habitats by agricultural societies.
On the whole, inter-human violence during the Upper Palaeolithic is a hot topic in palaeoanthropological sciences and many traumas recognized in fossil human skeletons have often been related to deliberate human violence. Such traumas are only occasionally fatal and cranial fractures often show signs of healing. This according to some pundits is indicative of the fact that Brute Force was used to settle dispute at the time.
2. Trial by Combat
As the family groups started to come together through clans and ethnic groups, the society gets more organized and secure. Disputes among members of the family were settled by family heads, while disputes among two or more families were settled by clan heads. In the same vein, any decision affecting the entire community or settlement was taken by the clan heads.
The clan heads of the community decide whether to go to war with a rival community or not i.e TBC. This method of dispute resolution is still prevalent today with the Heads of States or Government of Nations declaring war to settle a disagreement with a rival leader. Wars may also occur between warring parties who contest an incompatibility.
The nature of an incompatibility today can either be territorial or governmental but a warring party must be a “government of a state or any opposition organisation or alliance of organisations that uses armed force to promote its position in the incompatibility in an intrastate or an interstate armed conflict.”
A classical example of such TBC which is essentially “might is right” is how the North Korean Leader Kim Jong Un settled his dispute with his uncle Jang Song-Thaek:
The New York Times reports that the Jang’s death was the end result of a brutal gun battle between Jang supporters and those of the regime over who controlled key land. As the Times tells it, Kim’s forces were ordered to take back control over important fishing grounds that Jang had previously seized, but Jang wouldn’t give it up without a fight.
The battle ended in the death of many of Kim’s soldiers. Kim was furious and ordered that Jang’s top aides be executed. According to the Times, the two men were killed with antiaircraft machine guns rather than regular guns or rifles.
Yomiuri Shimbun, a Japanese newspaper, reported that Kim was “very drunk” when he ordered the death of Jang’s men. Earlier this month (December, 2013), Jang was executed for allegedly committing treason... Jang was accused of corruption and substance abuse, among other crimes that could not be verified by Western media.
Another instance of such TBC was the initial step taken by the then belligerent Countries in the Nigeria / Cameroon dispute over the Bakassi peninsula which resulted to skirmishes:
Among the many border disputes that Cameroun and Nigeria have had in the years since independence, the Bakassi peninsula stands out very clearly as the most serious dispute of all. ...The show of arms, especially in the past seventeen years, has left many dead and wounded. Fighting occurred on the lands surrounding the peninsula, (which are equally disputed), on the peninsula itself, and on the sea...
Things became heated on May 16, 1981. A Cameroun national radio news report informed the world that a Nigerian military patrol army violated Cameroun’s territory by penetrating the Bakassi peninsula as far as the Rio del Rey and opening fire on the Cameroun Navy.
Cameroun troops in returning fire killed five Nigerian soldiers. Cameroun alleges that this incident has provided the Nigerian authorities the pretext for exploiting the incident politically and for trying to put the blame on Cameroun.
However as it would be explained in detail below, when Cameroun weighed its population size and other options, it veered off to explore other methods of dispute resolution.
The Boko Haram insurgency that is today a clog in the peaceful co-existence of the people of the North East also are inclined to TBC as their mechanism of choice to resolve what could have been resolved through other peaceful means. Findings indicated that the group, which initially drew membership from the South-West, started off as “The Taliban.”
It was first invited to Yobe State during the build-up to the 2003 elections, in the wake of Sharia implementation in some states in the North. However, because the election in the state did not assume the dimension their host thought it would take, the group was said to have been abandoned to its fate, before the state government ordered them to vacate its vicinity.
It is reported that the group surfaced in Bayan Quarters ward, near the Railway terminus of Maiduguri, Borno state under the aegis of Jamaatul ahlil sunna lida’awati wal jihad (People committed to the propagation of the Prophets teachings and holy war).
Initially seen to be innocuous, but exhibited their propensity for resort to settle disputes through TBC since the disturbance of 2009. They were defeated in the uprising and order was restored. However, they still carry out a hit and ran style guerrilla warfare against soft targets from their hideouts in the forests.
It is observed that TBC is very popular among separatist agitators and proponents of intergroup conflict in Nigeria and indeed the whole of Africa. A cursory look at the activities of Movement for the Emancipation of Niger Delta (MEND), Movement for the Actualisation of the Sovereign State of Biafra (MASSOB), Odua People’s Congress (OPC), The Egbesu Boys, Akhwat Akwop Militia, The Bakassi Boys, Ethnic/Tribal Militias among which the Ombatse Cult Group stood out to be counted among the most ruthless along with Boko Haram indicates their penchant to resort to violence to settle disputes or disagreement.
It is worthy of research to find out why the resort to such dastardly method by such groups, because answering the “WHY” question would give us an insight into their thinking and thereby proffer reasonable solution to stop the carnage.
3. Trial by Judge(s) with or without a jury
Trial by Judge(s) refers to a formal legal process or a formal examination of facts and law in a civil or criminal action before a court of law in order to determine an issue. It can also refer to the use of court process to determine an issue or somebody’s guilt or innocence.
Under the Adversarial adjudicating system which we follow in Nigeria, the Judge (without the jury, a group of citizens from the community), decides which facts in dispute are true. A judge presides at the trial, determines and applies the law. At the end of the trial, the judge will enter a judgment that constitutes the decision of the court. The parties must adhere to the judgment of the court.
In Nigeria cases are tried before judges. This is known as a court trial or a bench trial. A court trial is basically identical to a jury trial, except the judge decides both the facts and the law applicable to the action. In some jurisdictions like the United States however, actions created by statute may be tried only before the court without a jury. Although in some court trials, the court will have an Advisory Jury. The advisory jury observes the proceedings just as an ordinary jury would, but the judge need not accept the advisory jury’s verdict.
Today, it is the most widely used and acceptable means of dispute resolution. This informed the migration of most disputes more particularly from TBC to adjudication. For instance, when Cameroun weighed the options of going into full scale war (TBC) against Nigeria and realised that the odds could be turned against it, it instituted an action at the International Court of Justice (ICJ) at the Hague.
Article 33 of the United Nations Charter lists the following methods for the pacific settlement of disputes between States: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies or arrangements; good offices should also be added to the list. Among these methods, some involve appealing to third parties. For example, mediation places the parties to a dispute in a position in which they can themselves resolve their dispute with the intervention of a third party.
4. Alternative Dispute Resolution
Alternative Dispute Resolution (ADR) also known as external dispute resolution in some countries, such as Australia includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. It is also referred to as a collective term for the ways that parties can settle disputes, with (or without) the help of a third party.
Most discerning minds have come to appreciate the shortcomings of BF, TBC and TBJ means of settling disputes. More so, African culture and tradition is inclined to dialogue and negotiation to settle disputes. This informs the challenges of lack of understanding of the English judicial system by an average Nigerian due to its technicalities and complexities.
This ignorance about how the system works might have informed the branding of Lawyers who took the pains to study and understand it as Liars. In the circumstance, as Dr. Ahmadu Ali said, “we must try to settle our disputes through dialogue.” Hence the desire to adopt (ADR) which is simpler, convenient, cheaper and in tune with the peoples culture and local knowledge.
Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR for some type of cases, usually mediation, before permitting the parties’ cases to be tried. While some Courts like the High Court of Justice, Borno State designate a specific Judge as an ADR Judge.
Indeed the European Mediation Directive (2008) expressly contemplates “compulsory” mediation. This means that attendance is compulsory, not that settlement must be reached through mediation). The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute. Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favour of the use of mediation to settle disputes.
Further detailed explanation would be found in the following chapter. Due to the existence of a thin line between dispute and conflict and the use of same by some practitioners interchangeably, a brief discussion on the two concepts is made hereunder.
Conflict
Since conflict is sometimes interchangeably used with dispute, it is important to briefly touch on what conflict is. Accordingly, for ease of understanding below is a brief explanation of conflict.
Conflict is defined as a disagreement through which the parties involved perceive a threat to their needs, interests or concerns. Conflicts like disputes explained above are seen as normal occurrences in human societies. Ordinarily, it does not cause much impact on the society. However, organized conflicts are viewed differently.
War being the most organized form of conflict (TBC) would therefore be widely used in this discourse. In addition, it is also the type of conflict that has wider and most negative effect on human societies.
War is an organized and often prolonged conflict that is carried out by states or non-state actors. It is generally characterized by extreme violence, social disruption, and economic destruction. War should be understood as an actual, intentional and widespread armed conflict between political communities, and therefore is defined as a form of political violence or intervention. The set of techniques used by a group to carry out war is known as warfare. An absence of war is usually called peace.
Wars sometimes seen as a higher form of dispute which has degenerated into conflict) sometimes conclude with a peace agreement, defined as a “formal agreement between warring parties, which addresses the disputed incompatibility, either by settling all or part of it, or by clearly outlining a process for how the warring parties plan to regulate the incompatibility.” In a nutshell, after war with all its consequences, most times the parties would still sit down to sign an agreement.
For instance, after the famous first Arab/ Israeli war or conflict, the parties still reached a cease fire agreement as can be seen in the illustration below:
Moshe Dayan and Abdullah el Tell reached a cease fire agreement during the 1948 Arab–Israeli War, Jerusalem. 30 November 1948.
Since then the Arab–Israeli conflict became an ongoing dispute that included many battles and wars since 1948, when the state of Israel was formed. During the Six-Day War of 1967, Israel had captured Egypt’s Sinai Peninsula and roughly half of Syria’s Golan Heights. According to Chaim Herzog:
On June 19, 1967, the National Unity Government of Israel voted unanimously to return the Sinai to Egypt and the Golan Heights to Syria in return for peace agreements.
The Golan would have to be demilitarized and special arrangement would be negotiated for the Straits of Tiran. The government also resolved to open negotiations with King Hussein of Jordan regarding the Eastern Border.
So Dispute and Conflict resolution practitioners have been concerned with the penchant of parties to resort to violence, even though are conscious of the fact that other better alternatives are still open to them. However detailed explanation on various methods of Dispute Resolution would be found in the following chapters.
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