Resolution — The way to go

The principles of using Alternative Dispute Resolution (ADR) to resolve conflicts in the country have been with us since pre-colonial days.

These principles have remained embedded in various traditional norms and values of our societies and communities.

In the past, most disputes were resolved through the extended family system.

Parents referred disputes in the family to the Head of Family, who tried to resolve the dispute.

When that effort failed, the Clan Head was called in to help.

The last resort was normally the Chief, who gave a final and binding determination.

However, for some time now due to the breakdown of the family system, most people have relied on the courts of law to settle disputes or litigations, as a result of which a huge number of cases or issues are now pending at the law courts.

Many people even start the dispute from the lower or district court, go to the High Court, the Court of Appeal and then finally the Supreme Court.

When that happens, more often than not there is bitterness in the concerned parties and they resort to other forms of settlement, sometimes very unpalatable.

Instead of peace, there are sometimes chaos and disturbances which go a long way to affect national cohesion, development efforts and progress.

To significantly address these problems, reduce the backlog of cases in the courts, the time spent in trying cases and also introduce pragmatic policies and processes that make justice more accessible, particularly to the poor and the vulnerable in society, ADR principles easily come across as an effective tool that offers disputing parties the opportunity for an early, informal resolution of disputes in a mutually satisfactory fashion.

We trust that that is one of the surest ways and most effective means to bring justice to the doorstep of all.

That is why the Daily Graphic supports the call by a Justice of the Supreme Court, Justice Jones Dotse, for the use of ADR mechanisms in conflict prevention and resolution (see last Monday’s edition of this paper).

The Daily Graphic is so much aware that ADR may not be suitable for every dispute.

For example, if the dispute involves a matter of public interest, it may be more appropriate to have a court judgment to set a precedent.

We, however, support the need for a comprehensive reform of the Judicial Service that will encourage many more people to use ADR processes and accept its outcomes, as have been agreed, so as not to go back to the law courts.

It is most unfortunate that although ADR is cheaper, friendlier, more constructive and easily accessible, many people still return to the law courts when the arbitration does not go in their favour

The situation largely remains so because many people do not go to the dispute table in good faith.

For ADR to be effective and made more meaningful, we believe that parties must be encouraged to negotiate in good faith by considering the interests of the other parties.

The key word is for parties to act in “Good Faith” and explore viable options to conclusively resolve disputes amicably.

It will also be of utmost importance to add value to the practice of ADR by incorporating counselling and mediation approaches.

When counselling and mediation approaches are adopted or practised in ADR regimes, it will go a long way for outcomes to be easily accepted.

Equally, consistent public education and sensitisation programmes are also needed to cement the practice of ADR in the country.

If this is done, the mediation process will generally be understood as an opportunity for parties in dispute to voluntarily select and invite a neutral mediator, who is not a judge, to help or assist in conflict resolution.

We are also aware that in some instances, agreements reached at ADR may not be easily enforced as a court or tribunal order.

In view of this, we would like to advocate other ways of making ADR agreements and decisions binding by having the terms of an agreement made into orders by consent by a court or tribunal.

We have no doubt that when effectively utilised, ADR can save a lot of time and money and place the parties involved in a dispute in control, instead of their lawyers or the courts.

It will also give more people access to justice because people who cannot afford court or legal fees can still access a dispute resolution mechanism.