AN APPRAISAL OF THE APPLICATION OF ALTERNATIVE DISPUTE RESOLUTION METHODS TO MARRIAGE DISPUTES
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The title of research work is an appraisal of the application of alternative dispute resolution methods to marriage disputes. The aims and objective of this research is to create an awareness that there are alternatives to litigation in resolving matrimonial disputes and to proffer relevant legal suggestions, (after analyzing how the alternatives work, their advantages and challenges facing them) that will enhance the effectiveness of the alternatives, in their application to matrimonial disputes.The research hypothesis of this study is H0. There is no awareness on alternatives to litigation in resolving matrimonial disputes. And H1. There is awareness on alternatives to litigation in resolving matrimonial disputes.With the use of simple random sampling techniques from the population of 240 resident of Kastina metropolis in Kastina State, the researcher selected resident of Kastina metropolis in Kastina State.
1.1 Background of the Study Divorce or separation, in the opinion of this writer, should be the last resort forresolving conflicts/strives in marriage. It is pointed out in this research that proceedings for divorce or judicial separation in courts do not properly take care of parties’ emotional health and that of their children and that it is adversarial innature. These and many more are the shortcomings of litigation that have led tothe inception of Alternative Dispute Resolution. Alternatives to litigation have been covering up in those areas of shortcomings of litigation. Really, these alternatives are opted for by disputing parties to marriage as a result of the benefits enjoyed therein. For instance, unlike the opennessexperienced in litigation, where issues of marriage, which are meant to be kept within, are exposed, ADR has brought about confidentiality in matrimony. Aside this, a smooth future relationship, between parties and between them and their children is fostered because ADR is not adversarial as litigation. Howbeit, can it be freely said that the use of these alternatives is free from challenges? If it is not free from challenges, what are those challenges facing it? Few of these challenges have been identified and they include inadequate skills,lack of enforceability and criticism on moral grounds e. t. c. Examining how three of these ADR methods work in marriage disputes under few jurisdictions, this research has been carried out to proffer relevant legal suggestions to overcome the challenges facing them in their application tomarriage disputes. This is the inspiration behind this research. Alternative dispute resolution (ADR) is commonly recognised as applying to processes that are alternatives tothe traditional legal methods of solving disputes (Charlton 2000). Many researchers (Astor &Chinkin 2002;Clark & Hoyle 2002; Hong 2003; Meadow 2003) recognise that it is difficult to construct a concise definition ofADR, but have noticed that negotiation, mediation and arbitration are often being chosen as processes forresolving disputes. Astor and Chinkin (2002) also note that it is difficult to get a clear dividing line between ADR and formal justice systems, as many courts have adopted their own version of ADR. In Australia, theNational Alternative Dispute Resolution Advisory Council (NADRAC 2003) explains, “ADR refers toprocesses, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them”. The idea of seeking an ADR rather than judgment from formal authorities has a long history. The modern ADRmovement has been profoundly influenced by Sander (1976), in which he introduced the idea of the “Multidoor Courthouse”. Several researchers (e.g. Astor &Chinkin 2002; Charlton 2000; Meadow 2003) have commentedthat ADR has become, for disputants, an established alternative option to litigation. Ross (1980) states “the principal institution of the law is not trial; it is settlement out of court”. Recent figures from a survey in TheNetherlands illustrate this statement. Around 48% of all disputes were settled out of court and just 4% is decidedby litigation (Velthoven&TerVoert 2004). In the United States, Williams (1983) notes that whilst the figuresmay vary in different jurisdictions, of all the cases listed before the courts only about 5% of the cases are ever heard by the court and only 1% of the cases result in judicial decision-making. Nevertheless, judicial decisionmakinghas a major influence on the outcome of negotiated settlements, because judicial decisions serve as thevery basis from which negotiations commence, they take place in the shadow of the intervention by a court(Williams 1983; Daughety 2000). The ADR movement has revolutionised thinking about the nature of dispute resolution, away from an adversarial model to a collaborative one. Disputants have the possibility to approach their conflicts in a different way, with a goal of producing win-win solutions for the disputants, rather than the distributive win-lose results available in court. Some most cited advantages of ADR, especially mediation, include: efficiencies; the ability of preserving party relationships; promoting active party participation and not creating precedential value. Research by Astor and Chinkin (2002), Brown and Marriott (1999), and Meadow (2003) has shown that the application of ADR isparticularly successful in resolving disputes in the area of commercial law, family law and employment law. ADR and litigation are fundamentally different approaches for resolving disputes. Most ADR processes areconcerned about bargaining and tradeoffs, whereas litigation is primarily concerned about justice. Evenarbitration, the most rigid ADR process, differs from court proceedings in that the rules of substantive andprocedural law are relaxed, they can be adapted to the specific needs of the forum and institutionalised within the formal justice system (Solovay& Reed 2003). Although there are an enormous variety of ADR services (Brown& Marriot 1999), three basic forms of dispute resolution can be identified: negotiation, mediation and adjudication (arbitration and litigation). Mediation and arbitration are commonly used ADR processes in western jurisdictions. Negotiation itself may not be an alternative to litigation, as it usually precedes alternative dispute resolution processes and litigation. But since the emergence of ODR, technology assisted negotiation systemsmay very well be qualified as ADR. Within a legal context, negotiation is a process of submission and consideration of offers until an acceptableoffer is made and accepted (Black 1990). In the wider community, negotiation can be viewed as a process by which two or more parties conduct communications or conferences with the view to resolving differences between them. Whilst law proposes formal procedures for resolving disputes, most negotiation is informal and indeed the participants may not even realise they are engaging in the negotiation process. Jennings et al (2001) claim that negotiation theory incorporates a broad range of phenomena and makes use of many different approaches (such as from artificial intelligence, social psychology and game theory). They claim that given the wide variety of possibilities, it should be clear that there is no universally best approach or technique forautomated negotiation. Rather, there is an eclectic bag of methods with properties and performancecharacteristics that vary significantly depending on the negotiation context. Alternative dispute resolution (ADR)has moved dispute resolution away from litigation and courts. Online dispute resolution (ODR) extends thistrend (Clark & Hoyle 2002). Information technology, especially the Internet, has opened up new modes of dispute resolution. 1.2 Statement of the Problem There have different dispute among family and marriage today, but a lot of couple goes to court to settle this dispute. There has be limited awareness on alternatives to litigation in resolving matrimonial disputes and proffer relevant legal suggestions, (after analyzing how the alternatives work, their advantages and challenges facing them) that will enhance the effectiveness of the alternatives, in their application to matrimonial disputes. 1.3 Research Questions The research question of this study are: a. What are the awareness that are alternatives to litigation in resolving matrimonial disputes and b. What is proffer relevant legal suggestions that will enhance the effectiveness of the alternatives, in their application to matrimonial disputes. 1.4 Aim and Objective of the Study The aims and objective of this research are: a. to create an awareness that there are alternatives to litigation in resolving matrimonial disputes and b. to proffer relevant legal suggestions, (after analyzing how the alternatives work, their advantages and challenges facing them) that will enhance the effectiveness of the alternatives, in their application to matrimonial disputes. 1.5 Research Hypothesis The research hypothesis of this study is stated below: H0. There is no awareness on alternatives to litigation in resolving matrimonial disputes. H1. There is awareness on alternatives to litigation in resolving matrimonial disputes. 1.6 Significance of the Study The main significance of this study is that this study will help to create more awareness to Alternative Dispute Resolution (ADR) is an alternative to a full-scale court proceeding and is applied in different situations in different ways, both formally and informally. Traditionally, people in rural areas have preferred to settle their disputes by the ADR process particularly, negotiation, mediation, conciliation and arbitration because this process is less time consuming and cheaper as well. 1.7 Scope of the Study The scope of this study is centered on the appraisal of the application of alternative dispute resolution methods of marriages case study of Katsina Metropolis. 1.8 Definition of the Study Award: This is the decision rendered by an arbitrator upon a dispute submitted tohim. Alternative Dispute Resolution: This means a process of resolving an issue susceptible to normal legal process by agreement rather than an imposed binding decision. Arbitration: This is the reference of a dispute (marriage dispute in this context) to an impartial third party, chosen by parties to it, who agrees in advance to abide or not to abide by the arbitrator’s award, issued after a hearing at which bothparties have opportunity to be heard. Collaborative Divorce: This is a family law process enabling couples who have decided to separate to work with their lawyers and other few family professionals in order to avoid uncertain and unfavourable outcome of the court. Custody: It is the care, control and maintenance of a child which may be awarded by a court to one of the parties as in a divorce or separation proceedings or after. Divorce: This is the legal separation of a man and his wife, effected by the judgment or decree of a court and either totally dissolving the marriage (absolute)or suspending its effect, so far as it concerns the cohabitation of the parties. Divorce Mediation: this is an ADR process, whereby the parties are assisted by atrained and skilled third party, who facilitates confidential communication and negotiation between the disputing parties to reach a voluntary and mutually agreeable divorce resolution. Facilitation: it is a means of helping two disputing parties negotiate issues arising from their dispute. In ADR processes, this is usually performed by a neutral third party, who advises and makes parties realize the consequences of their options/decisions rather than telling them what to do. Judicial Separation: it is a legal severance of a man and his wife by a decree of court that is less complete than a divorce. It is a limited divorce. Maintenance: this is the supply of necessaries such as food, clothing and housing, which may be temporarily or permanently ordered by court to besupplied by either party to the other or to their children on a petition for divorce orjudicial separation. Marriage: This is, as defined by Lord Pezance, a voluntary union for life of one man and one woman, to the exclusion of all others.Get Complete Materials