An Appraisal Of The Application Of Alternative Dispute Resolution Methods To Marriage Disputes

An Appraisal Of The Application Of Alternative Dispute Resolution Methods To Marriage Disputes

Abstract

Marriage is a union entered into by two parties in every jurisdiction i. e, marriage is a universal occurrence. Although the legal process involved (either in formality or requirement) varies from one jurisdiction to another, marriage is often characterized by disputes which range from divorce to custody of children, maintenance e. t. c. Marriage, as examined in this context, is limited to that conducted under statutes.

In resolving these disputes, recourse is made to adjudication. But overtime, various shortcomings are being found for litigation. These include unnecessary delay caused by congestion of court, high cost of litigation, confrontational nature of litigation amongst others. Employing the Matrimonial Causes Act, 1970, which operates within Nigeria jurisdiction, this research presents an outlook of litigation in resolving marriage disputes and also points out its shortcomings.

Consequent upon the shortcomings found for litigation, various alternatives to litigation are being come up with. This research, in line with resolving matrimonial disputes, focuses on examining few of these alternatives which are collaborative divorce, divorce mediation and divorce arbitration. In examining these alternatives, this research points out the advantages they have over litigation in their application to marriage disputes and these amongst others include promotion of confidentiality, cost and time saving. The challenges facing the use of these alternatives which include inadequate skills, lack of enforcement e. t. c. are also examined.

Furthermore, ways of curbing these challenges which are put forward as recommendations are included in the latter part of this research. This is thus the mainstay of this research.

Chapter One

Genaeral Introduction

1.0.0: Introduction

Marriage is a universal institution which is recognized and respected in various jurisdictions, though the legal formalities of statutory marriage, which this research is limited to, may be different. Besides the general view that marriage is a social institution from which societies are formed, it is also a union sanctified by God and may probably be termed sacred. If marriage is thus viewed in the above form, it will be devastating to the parties involved in a marriage, their children and the society at large, if the marriage is dissolved. It is not the intention of the writer to encourage dissolution of marriage or separation of parties to it. The writer is only of the opinion that where there are issues and strives in a marriage and the best solution, having tried other means, is divorce or separation, parties should not hesitate to do such if they are satisfied with it. It should be noted that where divorce or separation is resorted to, issues of maintenance of parties and their children and custody of children also spring up. However, where divorce or separation proceedings are instituted in court, parties’ emotional status, before, during and after the proceedings are not taken care of. 2 Besides, the adversarial nature of the proceeding and the delay accompanied with it often worsen parties’ emotional health not to talk of the children who experience shame and instability because of lack of confidentiality in the proceeding. These, amongst others, had led to the intervention of alternatives to litigation. The use of these alternatives, called, Alternative Dispute Resolution, has been thriving well in the areas of shortcomings of litigation. For the purpose of this research, collaborative divorce, divorce mediation and divorce arbitration are the only alternatives examined. Employing these alternatives in marriage disputes (divorce and separation) is a more dignified way of making couples, their children and their finances emerge healthy. This is because emotions are properly taken care of; parties discuss their issues in a friendly atmosphere rather than employing an adversarial approach as witnessed in litigation. These and many more are obvious indications that alternative dispute resolution has been covering up for litigation in the latter’s areas of shortcomings. Howbeit, there are some challenges facing the application of the named alternatives to marriage disputes and which may jeopardize their effectiveness or bestride the reasons behind their inception. For instance, in a situation where the final outcome of an ADR session is not complied with due to lack of enforceability facing ADR (aside arbitration), efforts of the parties and the neutral 3 third party becomes futile since the decision is not binding as experienced in some jurisdictions. Also, there is the challenge of inadequacy in the number of skilled personnel and training centers/facilities. For instance at the moment in Nigeria, there are only few private organizations that provide training services and resources on ADR and none is statutorily created.1 The training these organizations will provide will be little compared to what will be provided if government were to intervene. What and what should be done to put an end to such challenges seeing that the need to stop them is quite imminent? Relevant legal suggestions are offered by this writer in answer to the above questions.

1.1.0: Background to the Study

Divorce or separation, in the opinion of this writer, should be the last resort for resolving 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 in nature. These and many more are the shortcomings of litigation that have led to the inception of Alternative Dispute Resolution. 1 Kevin Nwosu , ‘Alternative Dispute Resolution (ADR): Answers to some Frequently Asked Questions’ (Paper delivered at Arbitration Workshop, Abuja ) 4 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 openness experienced 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 to marriage disputes. This is the inspiration behind this research.

1.2.0: Objectives of Study

The aims of this research are: a. to create an awareness that there are alternatives to litigation in resolving matrimonial disputes and 5 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.

1.3.0: Focus of Study

The primary focus of this research is to appraise the application of collaborative divorce, divorce mediation and divorce arbitration as alternatives to litigation of marriage disputes. Against this background, specific aspects will be touched and these are: a. litigation of marriage disputes and its shortcomings; b. advantages of ADR over litigation in marriage disputes; c. challenges facing ADR and d. suggestions for effective operation of ADR in marriage disputes.

1.4.0: Scope of Study

The ADR methods examined by this research are limited to collaborative divorce, divorce mediation and divorce arbitration. These methods are appraised in connection with their application to marriage disputes only. Marriage disputes in this context are those arising from marriage conducted under statutes. 6 In terms of jurisdiction, references shall be made to application of the named ADR methods in Nigeria, United States of America, England and Wales, Hong Kong, Australia and few others.

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Conclusion

Marriage, as defined by Lord Pezance, is a union for life between a man and a woman to the exclusion of others.113 This definition is in pari-material with statutory marriage which this research is concerned about. It has been pointed out that if marriage is as defined above and a social-religious institution tagged sacred, it should then not be wished to crumble or break down. However, occurrences here and there have shown that some marriages, no matter how much they are guarded by parties to them, still reach the verge of irretrievable breakdown and as put by the Matrimonial Causes Act,114 divorce should be considered at such point. Divorce proceedings, when either of the parties petition for it, has overtime been found to be time wasting, adversarial, and costly. It was further pointed out in this research that divorce proceeding neglects the fact that parties’ emotions should be taken care of. Children are also negatively affected in such proceeding. It has been stated that the consideration of reconciliation put in place in the proceeding, using the Nigeria Matrimonial Causes Act as a case study,115 cannot often be effective since it is considered when parties may have engaged in adversary. As alternatives to litigation, the research examined collaborative divorce, divorce mediation and divorce arbitration which have been developed due to the shortcomings of litigation. It has been stated that these alternatives are all voluntary processes which parties to divorce proceeding may opt for at any point of the proceeding. The use of these alternatives/ADR methods has advantages litigation. The advantages, as stated in this research are: voluntariness, flexibility, low cost, time saving, good emotional health of parties and their children, smooth future relationship, confidentiality and the use of experts. The research further went ahead to identify various challenges facing the use of the alternatives examined. These amongst others include absence of norms, unguarded flexibility, inadequate skills, lack of enforcement, criticisms based on moral grounds, inappropriateness in some cases and parties’ negative responses. 115 S. 11 MCA 73 Despite the challenges, the research found out that there is a likelihood of the use of ADR becoming better than the way it is presently. This is envisaged due to some successes and growth recorded in the few jurisdictions considered. However, it has been observed that out of the five jurisdictions considered in relation to the use of the alternative methods examined, it is only Nigeria that is still lacking behind. It has been stated that none of these alternatives is statutorily recognized nor are there formal training programs for them. The only thing in place that is statutorily recognized as ADR method in relation to resolving marriage disputes is reconciliation.116 It has been further stated that the condition wherein this reconciliation is sought to be effected is not conducive enough for it to be successful. Having considered all the above, the following recommendations, first, in relation to Nigeria and subsequently in relation to other jurisdictions, are therefore put forward.

Recommendation

Legal practitioners may not be ignorant of the existence of these alternative methods but what about the populace? Ignorance is one of the challenges noted to be facing ADR in resolving marriage disputes as a lot of people are not aware that there exist, other means of resolving marriage disputes aside litigation. To this end, it is recommended that there be a highly recognized level of public awareness in various jurisdictions, especially Nigeria, where the level of recognition of ADR is low. This can be done by organizing various seminars for the public by Bar Associations at various levels. The media can equally be made use of. In Nigeria, reconciliation is statutorily recognized117 and it is being regarded as an ADR process.118 It could be said to be very close to divorce mediation which is presently not in operation in the country. But the process of reconciling parties takes place under what has been referred to as ‘shadow of the law’119 and this is because the court environment is hostile and not conducive for meaningful reconciliation. However, it is recommended that reconciliation be made as an alternative to litigation in its real sense and not be ordered where litigation has already begun/at the middle of litigation where parties would have become estranged towards each other. This recommendation is to help in holding marriages that may have broken down irretrievably together again in a very easy 117 Matrimonial Causes Act, CAP. M7, LFN 2004 (s.11) 118Training Manual on Alternative Dispute Resolution and Restorative Justice for a workshop organized by the National Judicial Institute, Abuja and sponsored by European Commission, October 2007 119Mnookin R. & Komhauser C., ‘Bargaining in the Shadow of Law: A Case of Divorce’ (1978) 88 Yale Law Journal. P 950 75 manner. It is envisaged that when reconciliation is treated as such in Nigeria, it will attract parties with disputes in their marriages which may be at the verge of divorce no matter how irretrievably their marriages may have broken down. This is because no one wishes for the ‘burial’ of his/her marriage. This approach should equally be applied to other ADR methods that have been examined in jurisdictions where they are already being made use of. That is, parties should have the option of either going to court to litigate their dispute or opting for any of the ADR methods and not that the ADR methods be introduced or agreed upon by parties after litigation might have started. This will ensure an easy and effective settlement of dispute since parties would not have been engaged in court-room adversary. This approach will equally solve the challenge of negative response of parties. If reconciliation is statutorily recognized in Nigeria as ADR method for resolving marriage disputes, then other methods should equally be introduced, at least, for trial. If they are introduced, the above approach (making them independent) should be employed for their application. Closely related to the above recommendation is the training and enlightenment of legal practitioners and potential divorce mediators and divorce arbitrators under statutorily recognized institutions. Training of this set of persons under recognized and respected agencies and institutions (governmental) will erase the 76 challenge of unskilled ADR personnel. In the same vein, ADR generally should be introduced in the curriculum of legal studies in such a way that the whole lot of it would be covered if it is started from the scratch level to the ultimate level of legal studies. By the time any law student finishes his/her legal studies; he/she should have become so vast in the understanding and use of ADR while persons other than law students should be given the opportunity to attend the statutorily recognized institutions. This recommendation will serve dual purposes which are: increment in number of ADR professionals and satisfaction of clients. Also, for divorce arbitration, there should be a check on the powers and authority of the arbitrator so that the flexibility of the process may not be abused. When the consciousness of check lies in an arbitrator, he performs his duty with utmost good faith and parties can be rest assured that their cause will be dealt with in all truthfulness devoid of favouritism. Moreover, rules and guidelines regulating the ADR processes should be statutorily put in place as against the ones being put in place by various associations of legal practitioners like The Model Family Law Arbitration Act120 in USA which was created by the American Academy of Matrimonial Lawyers to provide guidelines for arbitrators conducting hearings regarding family law matters. The statutory regulation should be such that can be reviewed from time to 120United State of America Model Uniform Arbitration Act, 2003 77 time so as not to destroy the flexible nature of ADR which is one of its advantages. In conclusion, the researcher is of the view that ADR is a better method of resolving marriage disputes when compared to litigation and therefore gives the above recommendations to make ADR the better option it is meant to be.