Alternative Dispute Resolution as dispute resolution mechanism (2)
Arbitration follows an established procedure for determining the dispute judicially, although parties are at liberty to choose their arbitrator and the rules and procedures they want to apply to the matter.
Benefits ADR
ADR has now been incorporated into the justice delivery system, and it has proved to be faster, cheaper, more efficient and friendlier in its application and use. ADR mechanisms have been in use for some time now and are fast gaining popularity as a preferred method of dispute resolution.
Parties who have gone through some ADR processes like mediation acknowledge their satisfaction and trust in the process. ADR practice is voluntary, ADR is flexible and easier to undertake in communities in the country.
ADR looks at interests and not rights. Interests are needs and concerns that people have. ADR is consensual, pleasing, and acceptable to all.
There is the element of confidentiality.
Some types of disputes might be best resolved through litigation, such as in cases where parties have unequal power or resources.
Lawyers or Attorneys may or may not be involved, and this can be viewed as either a benefit or a limitation, depending on the circumstances.
A mediator cannot be called to testify.
It is a voluntary process; one party may choose not to be part of the process.
Decisions at ADR are not predictable. Parties may use the ADR process to delay the resolution of a case.
ADR does not give definitive decisions on a case, hence no basis for precedents.
Institutions/individuals in ADR
• The Labour Act 2003 (Act 651) established the National Labour Commission (NLC).
The commission is to facilitate the settlement of industrial disputes and to investigate labour-related complaints such as unfair labour practices in the employer-employee relationships, and take measures to prevent and resolve labour disputes in the country.
Additionally, the Commission is also required to maintain a database of qualified persons to serve as Labour Mediators and Arbitrators who will assist the Commission and also the disputing parties to mediate or arbitrate their disputes.
In 2017, the Labour Commission received a total of 705 cases, of which 336 were resolved through the various spectrum of ADR (NLC, 2017)
• The Court-Connected ADR, since August 2005, has become an integral part of the justice delivery system in Ghana.
A court at any stage of the proceedings may refer a matter for ADR. Any of the parties can also request ADR during the pendency of the case.
The Judicial Service now has a National Directorate which oversees the policy implementation of the court-connected ADR.
The National Directorate is supervised by a Justice of the Court of Appeal. In 2022, the then Chief Justice, Justice Anin-Yeboah, announced that ADR, since its introduction, has resolved 29,558 cases in the last 15 years. (Anin-Yeboah, 2022).
Coordinators have been appointed to administer the scheme in the regions.
Currently, the scheme is being operated in 138 courts throughout the country, besides the National Directorate (NADR Secretariat, 2024).
• The Commission of Human Rights and Administrative Justice (CHRAJ) is the Ombudsman for all public officials and services; a human rights and anti-corruption institution.
The Commission of Human Rights and Administrative Justice was established as an alternative medium for redress of disputes alternative to the formal courts.
The 1992 Republican Constitution of Ghana and CHRAJ Act 1993(Act 456) require that in undertaking its investigative functions, it “take(s) appropriate action to call for the remedying, correction and reversal of instances specified through such means as are fair, proper and effective, including negotiation and compromise between the parties concerned.”
From its establishment in 1993, the Commission has adopted mediation as the ADR mechanism of choice in the resolution of disputes brought before it throughout the years (Whittal, 2014)
• The Department of Social Welfare and Development is a government statutory agency under the Ministry of Gender, Children and Social Protection.
The department was first established in 1946 by Local ordinance order No. 66 as the Department of Social Welfare and Housing, and later as the Department of Social Welfare in 1950. An important part of a social worker's professional responsibility is to manage conflict productively.
Whether advocating for clients, dealing with conflict within organisations, or helping people learn more effective ways of coping with conflict in their lives, resolving conflict in employment settings or related to the delivery of services to clients, social workers are involved with conflict resolution daily.
• The Legal Aid Commission in Ghana was set up to ensure equality of access to justice and treatment before the law by serving as a public defender for the poor in need of cost-effective justice.
The commission provides the following services: alternative dispute resolution services, legal advisory services, legal representation in all matters, legal representation for juveniles, legal representation in civil matters, and legal representation in connection with any proceedings relating to the Constitution.
Community mediation is also a programme introduced by the Legal Aid Board of Ghana, with donor support from the United Nations Development Programme (UNDP).
Community Mediation centres, an initiative of the Ghana Legal Aid Scheme and the United Nations Development Programme (UNDP), were set up to reduce the pressure on the traditional courts, which are choked.
• National Peace Council: The National Peace Council Act 2011 (Act 818) was instituted to increase awareness of the use of non-violent strategies to prevent, manage and resolve conflict and build sustainable peace in the country.
Also, to facilitate the amicable resolution of conflict through mediation and other processes, including indigenous mechanisms for conflict resolution and peacebuilding.
• The Lands Commission is established by Article 258 of the 1992 Constitution and the Lands Commission Act, 2008 (Act 767) as a body corporate with perpetual succession, a common seal and may sue and be sued in its corporate name.
The current Lands Commission, as part of the Public Sector Reform Programmes and the Land Administration Project, has been substantially modified by Act 767 to increase its efficiency and effectiveness.
The Land Act 2020 (Act 1036), section 98 abolishes the former Land Title Adjudication Committees.
This has now been replaced by a resort to alternative dispute resolution for the settlement of land disputes.
The section prohibits claimants from instituting action in court about matters concerning land registration until claimants have exhausted settlement under the ADR Act 2010 (Act 798).
• Traditional Authorities
Local chiefs, family heads, elders and Tindanas also help solve disputes.
They use customary arbitration, mediation, and negotiation to settle issues in their communities and land matters.
• Ghana Arbitration Centre
An independent organisation that helps people and businesses settle disputes without going to the courts.
There is a team of professional practitioners, including lawyers, engineers, accountants, and architects, all trained to help with conflict resolution.
• Individual mediators/arbitrators
Ghana has no mandatory accredited mediators.
The Alternative Dispute Resolution Act 2010 (Act 798) outlines principles of independence, impartiality, and confidentiality for mediators, but specific qualifications are not mandated.
Some institutions in Ghana train, examine and offer services in alternative dispute resolutions, such as the Institute of Paralegal Training and Leadership Studies, the Ghana Association of Certified Mediators & Arbitrators, Gamey & Gamey Academy of Mediation, Centre of Peace and Reconciliation, and the University of Ghana (LL.M. and MA in Alternative Dispute Resolution).
The Sustainable Development Goal 16 is a key component of Peace, Justice and Strong Institutions.
This goal also seeks to promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.
Resolving disputes through ADR is different from asking a court to resolve the dispute.
ADR helps parties to remove a potential source of conflict, preventing its escalation into a dispute, and find the way back to a constructive, cooperative and potentially productive future relationship.
