Fact Finding and Dispute Resolution

Disputes are practically unavoidable in the relationship of man, and this is why it is necessary to have an existing structure to settle such disputes. In the past, there were other methods like trial by ordeal, which the criminal code has now made unlawful. An example of trial by ordeal is when a baby whose legitimacy is in doubt is thrown into a river. The people usually believe that God would intervene if the baby is legitimate. The modern processes of settling disputes are the adjudicatory and non-adjudicatory methods.

Adjudicatory method

This method is popularly known as litigation and it involves the trial of a dispute in a court of law. A party, known as the plaintiff, usually complains to the court of an act and brings an action against the defendant. A judge then presides over the trial and the decision of the judge is binding on both parties. There are usually facts as to what caused the dispute, and the judges employ different processes in fact finding. Fact finding refers to the process of deciphering what happened to cause a dispute between two parties. The two main approaches of fact finding are the adversarial method and the inquisitorial method.

The adversarial method

This method gives the lawyers and their clients the privilege to decide the direction in which the case goes. This is because the judge is not allowed to descend into the arena. Each party is to assemble his witnesses and try to prove their case. Each party calls on his witness one after the other, and this is known as examination-in-chief. After this, the other party may cross-examine the witness in an attempt to reduce the force of the witness’ statement or have it dismissed. If a witness is not cross-examined, then the judge shall assume that everything said was true. The party may re-examine his witness after he has been cross examined to settle any discrepancies.

The judge is like an umpire who cannot descend into the arena. Even if the judge feels that the right questions are not being asked, he can say nothing about it. He may only ask questions to clear discrepancies or clarify an ambiguity in the answers of the witnesses.

Criminal procedure: In a criminal prosecution, the two parties are usually referred to as the prosecution and the accused. The prosecution is obligated to reveal his evidence to the accused before the trial to enable him prepare a defense, while the accused does not have to reveal his defense. The accused may choose to remain silent all through the case, and this is provided for in section 35(2) of the constitution. Furthermore, the prosecution is required to prove beyond reasonable doubt that the accused is guilty. The House of Lords stated in Woolmington v. D.P.P. that while the prosecution is obligated to prove the accused’s guilt beyond reasonable doubt, the accused has no need to prove his innocence. The only time when the accused would have to prove his innocence is in a case where the facts create a presumption that he is guilty. This is called a case of res ipsa loquitur, and it means “the facts speak for themselves”. If, for example, a surgical knife is found in a patient after a surgery, the facts point at the surgeon having left the knife in that patient. Erle C.J. stated in Scott v. London and St. Katherines Docks Co,

Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.

Advantages of adversarial method

It reduces the element of bias, since a judge is to reach is conclusion only on what the parties present and not descend into the arena. Therefore, it is easy to detect when a judge has perverted justice if he descends into the arena.
It gives both parties the opportunity to present their cases while trying to discredit the other party’s case. This means that a party with an apparently weaker case may win if his lawyer is diligent and committed to the case.
The method gives both parties an equal playing ground, and so it gives both parties an equal chance to win.
Since the lawyers are in charge of directing the case, it may help in the development of the law as lawyers may come up with ingenious arguments.
The decision of the court is binding and so does not require the parties to go to another tribunal.

Disadvantages of adversarial method

The most obvious flaw is that those with the best lawyers, which are most often the rich, are most likely to win.
It tends to be a way of continuing a legal fight instead of reaching a peaceful resolution.
Since it is based on evidence, some lawyers may go to any length to provide evidence to support their case including getting witnesses to perjure themselves. In Whitehouse v. Jordan, the court had to criticize a lawyer for doctoring the evidence produced by an expert.
There is often a long delay of cases which makes it frustrating for a claimant/plaintiff to have his rights enforced. In Ajani v. Giwa, Oputa J.S.C. criticized the fact that a case had been before the court for 16 years for a party to know whether or not he was the owner of a piece of land. This may also be a delay tactic by the defendant who has no real defense.
The long delay may impair the fact finding process as some witnesses may have died, some unable to recollect the facts, and some important pieces of evidence lost.

The inquisitorial method

In an inquisitorial method, the judge is allowed to descend into the arena and guide how evidence is collected and may personally question the witnesses. This is why it is known as the inquisitorial method, because the judge is allowed to inquire into the facts of the case. Some Nigerian tribunals are inquisitorial in nature.

Advantages of the inquisitorial method

Trials conducted through the inquisitorial method are usually faster and provide for speedy trials.
The procedure is simpler and less formal, requiring less money than the adversarial method. A party usually has to file a prescribed form and does not have to go through the formality of issuing a writ of summons and filing statement of claims as in the adversarial method.
It promotes equal access to justice as the result does not depend on the quality of the lawyers but instead on the investigative capability of the adjudicating body.
The decisions of the court are binding and do not require the rectification of any tribunal.

Disadvantages of the inquisitorial method

Justice may not be done because of the speedy trials. While trying to meet up with the deadline for resolving a case, some details might be ignored.
The quality of the trial depends on the adjudicatory body. There are some facts which may escape the adjudicatory body and may not escape the lawyers. And also, there is no opportunity for ingenious arguments by the lawyers. This problem is compounded when the administrative body is lazy.
Many inquisitions are done in camera and not in public. This prevents the public from scrutinizing and so justice may not be done.

Non-adjudicatory method

It is not every dispute which is settled in a court of law. Sometimes, parties have their disputes settled without going to a court of law or going through the adjudicatory process. This method of dispute resolution is referred to as the non-adjudicatory method or alternative dispute resolution (ADR). This method does not involve the appearance of parties before formal institutions, the calling of witnesses and it rarely ever apportions blame. In this method, it is rarely ever said that one party is completely right while the other party is completely wrong. Although it is not done in a court of law, this non-adjudicatory method is recognized by the law. The four main forms of the non-adjudicatory form of dispute resolution are reconciliation, conciliation, mediation and arbitration.

Reconciliation: In this form of non-adjudicatory dispute resolution, the parties involved in a dispute come together to reach an agreement on how to restore harmony to their relationship. The Matrimonial Causes Act, 1973, states in section 6 that a solicitor acting for a petitioner for divorce must certify that he has discussed with the petitioner the possibility of a reconciliation. Parties cannot be forced into reconciliation.

Conciliation: this form of dispute resolution is done through the effort of a third party as an intermediary. This third party is referred to as the conciliator. The conciliator brings the two parties together and they all participate in the negotiations. The conciliator discusses the issues in the dispute and makes a proposal on the possible terms of settlement. It should be noted that except when the law says so, the agreement reached with the conciliator is not binding. The conciliator’s proposal is only a suggestion.

Mediation: A mediation is usually done by a mediator. The mediator rarely inquires into the facts of the dispute and is more concerned with the settlement. The mediator’s decision is not binding on the parties. Although it seems similar to conciliation, the mediator meets with the disputing parties separately in a mediation while the conciliator meets the parties together in a conciliation.

Arbitration: An arbitration is the only non-adjudicatory method in which one party is pronounced right and the other party wrong. It is the only one in which the decision reached is binding on both parties. Before an arbitration can happen, both parties must have agreed to resolve the dispute through arbitration or to resolve any dispute which arises out of a contract through arbitration. Once such an agreement has been entered into, the parties cannot go back on the agreement and so it is binding. The arbitrator probes into the facts of a dispute and then gives a binding decision, also deciding who is right and wrong.

Advantages of non-adjudicatory method

It avoids the win or lose feature of the adjudicatory method and in this way makes the possibility high for future harmony between the two parties.
It allows the parties to decide their own fates, instead of relinquishing the power to an adjudicator. In all the methods besides arbitration, decisions are not binding and it can also be seen that the parties take active parts in the settlement of the dispute.
Being faster than the adjudicatory method, it saves time.
The processes are free from formalities in the fact finding process and collection of evidence, formalities which make the adjudicatory method more complex and technical.
In the arbitration process, arbitrators are usually individuals knowledgeable in the subject matter. In adjudicatory method, judges might sometimes be ignorant of some technical issues.
The non-adjudicatory method is usually sponsored by the parties, while the adjudicatory method is sponsored by the state. By sponsoring the process, the parties pool money together and may feel more involved in the process.

Disadvantages of non-adjudicatory method

It is necessary to hire rooms for meetings and hearings, instead of making use of public facilities like the courts of law. The fees would have to be paid jointly by the disputants, and they would also have to pay the fees and expenses of the arbitrator.
The decisions are not always final, as appeals may be made to courts to set aside the decisions where there was an error of law.
Parties cannot be forced into the method and must be willing to participate in the non-adjudicatory method.
The method may be discredited as it often does not punish wrongdoers and lets them go free.
The decisions reached are often not binding, and so the parties may either choose to accept the decision or refuse it.