ADR as dispute resolution mechanism
Conflicts have existed in all cultures, religions, and societies since time immemorial, as long as humans have walked the earth, because conflicts are an integral part of human interaction (UNDESA, 2013).
Conflict is an essential ingredient of human existence.
This basic fact is often overlooked because excessive conflict creates hardship, promotes aggression, and causes great harm (Douglas, 1993).
Conflict is unavoidable in any society; therefore, there is a need to devise methods for managing it whenever it arises in nations, families, individuals, social groups, and business partners.
One must learn how to manage conflicts, deal with them in a way that will prevent escalation and destruction, and develop innovative and creative ideas to resolve them.
Stories of handling conflicts and the art of managing them are told at length throughout the history of every nation and ethnic group that shares the same history.
The field is characterised by diversity and complexity (UNDESA, 2013).
It is diverse because conflicts exist in every facet of individual and social life: between business partners, employers and employees, among employees, trading partners, neighbours, between parents and their children, husbands and wives, an individual and society, and between countries.
In Ghana, the method of resolving conflicts, managing conflicts, and dispute resolution bequeathed to us by the colonial masters was litigation through the courts (Crook, 2012).
Litigation, which is the process of taking an argument between people or groups to a court of law, has been a form of resolving disputes.
Litigation in Ghana is adversarial, highly aggressive, confrontational and sometimes very divisive.
The trial of disputes in the courtrooms is characterised by a tense atmosphere, which increasingly becomes competitive and occasionally hostile. In some cases, it destroys family relations from one generation to the other.
Over the years, research has shown that litigation is incapable of addressing societal needs in managing conflicts for various reasons.
Litigation is fast becoming unpopular due to a generally negative public perception regarding the country's judicial processes.
Litigation has also been slow, expensive and cumbersome (Adjabeng, 2007).
The high cost of litigation remains a threat to access to justice since the very poor may not afford it.
Litigation is characterised by endless delays. For example, the case of Adu v.Kyeremeh 1987-88 GLR 137 was in court for 26 years.
In litigation, Judges and Magistrates are bound to apply strict rules on civil procedure and evidence.
These rules are time-bound and inflexible.
Court rules most times do not allow evidence on emotional matters like injured feelings, resentments, anger or shame unless the nature of the case calls for its inclusion.
Court hearings are public with no privacy except under certain circumstances.
Courtroom language can sometimes be confusing, such that parties who own the dispute do not understand what happens between the court and lawyers.
Because litigation has been the most used mechanism for dispute resolution, the courts are overburdened with cases which keeps increasing, leading to delays and a low confidence level in the Judiciary.
These and other factors led to the initiation of a wide-ranging reform programme of the Judicial Service of Ghana to reduce the backlog of cases in the courts, significantly reduce time spent in trying cases, and also to introduce policies and processes that make justice more accessible to the poor and vulnerable in society.
To complement litigation methods, given these excesses, Alternative Dispute Resolution (ADR), a new method, emerged.
This is to wean us from court delays and ensure speedy and efficient management of disputes. ADR is nothing new.
This informal quasi-judiciary system is as old as civilisation. Different forms of ADR have been in existence for thousands of years.
Alternative Dispute Resolution (ADR) generally refers to a range of consensual means by which disputes are resolved outside of the court. Alternative Dispute Resolution (ADR), sometimes also called “Appropriate Dispute Resolution”, is a general term used to define a set of approaches and techniques aimed at resolving disputes in a non-confrontational way (Shamir, 2003; Visseher, 2008).
The several different methods of resolving disputes outside the traditional legal and administrative forums are Conciliation, Mediation, Negotiation, Arbitration, and Med-Arb.
The ADR “movement” started in the United States in the 1970s in response to the need to find more efficient and effective alternatives to litigation (Sternlight, 2000).
Today, ADR is flourishing throughout the world because it has proven in multiple ways to be a better way to resolve disputes and conflicts.
Background ADR
In reality, the principles of ADR have been in existence in Ghana, dating as far back as the pre-colonial days (Crook, 2012). These principles have remained embedded in various traditional norms and values of Ghanaian societies and communities.
The methods of traditional dispute resolution entrenched in the social fabric of our ancestors enabled the Colonial Courts, established by the colonial administrators at the time, to authenticate, recognise, and enforce these traditional settlement outcomes in the courts (Adjabeng, 2007).
Settlements were through Chiefs, Elders and Heads of Families and Clans in each community.
Additionally, before the introduction of litigation in the courts, chiefs, heads of family, and communal leaders settled disputes peacefully in their palaces using the traditional method of dispute resolution characterised by the application of unwritten rules founded on the customs and traditions of the community (Adjabeng, 2007).
With modernisation and the increased complexities in human and corporate behaviour, the traditional way of settling disputes faded away, especially in the cities.
In Ghana, ADR is governed by the Alternative Dispute Resolution Act of 2010 (Act 798). The law interprets ADR to mean the collective methods of resolving disputes rather than through the normal trial processes at the law courts (Section 135).
The Courts Act, 1993 (Act 459) in sections 72 and 73 encourages the use of ADR to resolve disputes pending before the courts.
Other statutes that govern the practice of ADR include the High Court (Civil Procedure) Rules, 2004 (C.I. 47), and the Labour Act, 2003 (Act 651).
The Judicial Service of Ghana introduced the ADR concept into its adjudication system in 2005 and named it the court-connected ADR (CCADR) programme. This concept emphasises mediation, in view of its collaborative nature in handling disputes.
Family and domestic disputes such as maintenance, custody issues, divorce, property settlement and distribution, relationship cases, e.g. marriage, parent/child; commercial cases, employment and labour disputes, landlord/tenant disputes, and land and boundary disputes are cases appropriate for ADR.
Cases not appropriate for ADR are as follows: constitutional issues, cases involving public policy and interest, human rights cases, cases expected to guide or serve as a precedent for the development of the law or government policies, and criminal offences except minor or non-aggravated offences.
Types of ADR
Conciliation is a form of alternate dispute resolution (ADR) in which a neutral third party hears from both sides and then issues a non-binding suggested resolution.
It is also a process by which a third person or professional facilitator, on request, assists the parties to amicably settle their disputes.
The neutral third person may ask the parties to submit evidence and make settlement proposals.
Conciliation is a voluntary process.
The process can be described as a facilitated search for agreement between disputing parties.
• Mediation is a process that employs a neutral/impartial person or persons to facilitate negotiation between the parties to a dispute to reach a mutually accepted resolution. Mediation is a voluntary process (except where there is a law of mandatory mediation in place).
The parties agree to the process, and the content is presented through mediation, with the parties controlling the resolution of the dispute.
Mediation is often an option for parties who cannot negotiate with each other but who could reach a mutually beneficial or mutually acceptable resolution with the assistance of a neutral party.
The neutral party will help sort out the issues to find a resolution that achieves the parties’ objectives.
• Negotiation is simply a process where parties who have a dispute or difference engage each other directly in a constructive process aimed at resolving their differences without any third-party intervention.
The Labour Act, 2003 (Act 651) of Ghana advocates a method of “Good Faith” in negotiations.
In negotiations, the parties, either on their own or through their representatives, may either endeavour to resolve their issues without the involvement of a third party.
This is undertaken by exchanging offers and counteroffers to settle through negotiation.
In cases where negotiation is successful, the parties may enter into a negotiated settlement, which may form the basis of a consent judgment that may then be formally adopted in a Ghanaian court if the negotiation is court-connected (Akyea, 2022)
• Arbitration is a method of ADR in which parties vest authority in a third-party neutral decision maker who will hear their case and issue a decision, which is called an arbitration award. An arbitrator presides over arbitration proceedings.
Arbitrators are neutral decision makers who are often experts in the law and the subject matter at issue in the dispute.
Their decisions do not form binding precedent.
It is also a quasi-judicial process where parties to a dispute engage the services of a third person for a final and binding resolution of the dispute, like an arbitral award.
