Introduction to Alternative Dispute Resolution:
Introduction:
In Ghana, the judiciary is vested with final judicial authority to entertain both civil and criminal disputes (suits). This note will discuss an alternative way of resolving disputes between two or more parties other than through the judiciary. This alternative way is often referred to as alternative dispute resolution. The note will discuss the meaning of alternative dispute resolution, how it generally compares to litigation, and its statutory recognition. In subsequent notes, the history, advantages, and disadvantages of alternative dispute resolution.
Meaning of Alternative Dispute Resolution:
Per Section 135 of Act 798,
“Alternative Dispute Resolution” means the collective description of methods of resolving disputes otherwise than through the normal trial process.
In Black’s Law Dictionary, 9th ed., alternative dispute resolution is defined as:
A procedure for settling a dispute by means other than litigation, such as arbitration or mediation
These definitions recognise that the courts are avenues for the resolution of disputes. More importantly, they recognise that the court is not the only avenue or mechanism for the resolution of disputes, and there are alternatives to litigation.
The “A” in ADR:
Generally, ADR refers to alternative dispute resolution.
However, some authors refer to ADR as additional dispute resolution. This reference is merely to emphasise that ADR provides additional mechanisms for the resolution of disputes and is not to replace litigation. These mechanisms include negotiation, mediation, and arbitration.
Some other authors refer to ADR as Africandispute resolution. This description is also to highlight that the processes such as negotiation, mediation, and arbitration as dispute resolution mechanisms are African in origin and have existed prior to receiving statutory recognition. For instance, arbitration may be seen as a modernisation of the long-existing practice of customary arbitration.
For some other authors, ADR is appropriatedispute resolution because litigation is not always the appropriate means of resolving certain kinds of disputes, such as those involving families or persons in need of preserving their relationship after the resolution of a dispute.
Alternative Dispute Resolution Versus Litigation:
Litigation often seeks to resolve disputes based on the rights and liabilities of the parties. For instance, contracting parties have rights and liabilities that can be deduced from the terms of the contract. Consequently, if a dispute arises between contracting parties, the courts will only make reference to the terms of the contract and resolve the dispute accordingly.
On the other hand, alternative dispute resolution seeks to resolve disputes by reconciling interests rather than making a determination based on rights. Here, the process of resolving the dispute will not only seek to resolve the dispute by making reference to the terms of the contract but also by considering the interests of the parties.
Statutory Recognition of Alternative Dispute Resolution:
Various pieces of legislation recognise that disputes can be resolved through means other than litigation. These are now discussed.
1. Alternative Dispute Resolution Act, 2010 (Act 798):
A. General Overview of Act 798:
The most important piece of legislation that recognises and regulates ADR is Act 798. This is:
AN ACT to provide for the settlement of disputes by arbitration, mediation and customary arbitration, to establish an Alternative Dispute Resolution Centre and to provide for related matters.
It came into force on 31 st May, 2010.
Per its memorandum, the Act seeks to:
B. Scope of Application of Act 798:
In Section 1 of Act 798, it is provided that:
This Act applies to matters other than those that relate to
(a) the national or public interest;
(b) the environment;
(c) the enforcement and interpretation of the Constitution; or
(d) any other matter that by law cannot be settled by an alternative dispute resolution method.
Thus, these matters are not amenable to ADR or cannot be the subject of ADR.
C. Structure of Act 798:
The Act is structured into the following five parts:
D. Strengths and Weaknesses of Act 798:
In A Daniel Come to Judgement: Ghana’s ADR Act, a progressive or retrogressive piece of legislation? Nene Amegatcher discussed various strengths and weaknesses of Act 798.
In terms of strengths, the first is that Act 798 combines arbitration, customary arbitration, and mediation in a single statute. Per the learned author, this combination is a unique feature of Act 798, which gives statutory legitimacy to the existing custom of submitting disputes to traditional leaders and puts to rest the dispute on whether arbitration is an ADR process.
Second, the Act is also heralded for containing progressive provisions relating to arbitration. Among others, it provides for the separability of arbitration agreements in section 3. This means even if a contract in which an arbitration clause is inserted is rendered invalid, the arbitration clause itself is not invalid. This is a common law position that has been given statutory recognition. Also, it provides in section 6 that there can be reference back to arbitration if a party, contrary to an arbitration agreement, commences an action in court. There are also provisions on the conduct of arbitration management conferences, among others, which allow the parties to decide the procedure for arbitration proceedings, such as the date, time, and estimated duration of the hearing, among others.
Third, the Act incorporates various ethical provisions in arbitration, mediation, and customary arbitration. The learned author stated that under the Act, an arbitrator is enjoined to be impartial and is mandated to disclose to the parties any circumstances likely to give reasonable doubts as to his independence or impartiality. The Act also provides that an arbitrator maintain confidentiality. In furtherance of this ideal of confidentiality, the Act also provides that a mediator cannot be made a party in any court proceedings relating to mediation. This is to prevent a mediator from informing the court (and hence the public) of what went on during mediation, particularly during caucusing.
The learned author and former justice of the Supreme Court also discussed the weakness of the Act. The first is that the Act excludes certain issues from arbitration, such as those highlighted in Section 1 (supra) . Per this section, issues that relate to national or public interests, the environment, constitutional interpretation, among others, are not arbitrable. The learned author submitted that while constitutional interpretation should be left to the Court,
The mention of national or public interest is ambiguous, and the specific exclusion of criminal cases (which can be subsumed under national interest) from customary arbitration is particularly unexplainable considering the fact that the Courts Act 61 provide for mediation in criminal cases under Victim Offender mediation.
Exclusion of environmental issues from the ambit of the Act is one setback to the purpose of bringing the Act in line with international standards. Most environmental issues are now resolved through ADR. In Ghana, ADR can be employed to settle some disputes such as refuse dumping sites, resettlement of communities like “Sodom and Gomorrah.”
Another weakness is that the Act fails to make provisions to regulate negotiation. The learned author queried that:
If arbitration awards and mediation agreements can be enforced as judgments of the courts, what happens to agreements reached and signed by the parties as a result of negotiation? Will parties who seek to enforce such negotiated agreements have to initiate fresh suits at the courts? In the absence of any specific provision for the enforcement of negotiated agreements as there are for arbitration and mediation, the omission clearly defeats the object of the Act to use all ADR mechanisms to ensure speedy and less expensive methods of dispute resolution.
Another weakness of the Act is that it fails to make a provision preventing the courts from intruding into arbitration. Per the learned author, unlike other countries, there is no provision in Act 798 that limits the intrusiveness of the courts in arbitration.
Another weakness of the Act is that in Section 73, it wrongfully stresses positions rather than interests in mediation. It is well known that interests shape positions, and any attempt at resolving conflicting positions should first seek to determine the interests of the parties, which may themselves not be conflicting. However, Section 73 of Act 798, in providing for identification of issues in dispute, obliges the parties to state their position to the mediator and empowers the mediator to request each party to set out his or her position in writing. The learned author believes this to be an oversight in drafting.
Finally, while the establishment of an ADR centre is often commended, the fact that members of the board are appointed by the president is a weakness. He notes that:
According to the skeptics, the involvement of government in the Board membership makes it unattractive to investors who normally do not trust governments so much.
He further notes, in strong language, that:
No investor will want to be part of an arbitration Centre under the control of Government. This is indeed a minus and the most regressive part of the Act. So serious is this provision that if the Centre will not be patronized by its key players, then the provision alone could erode all the advantages pointed above.
2. The Courts Act, 1993 (Act 459):
First, per Sections 72 and 73 of Act 459, courts are enjoined to promote reconciliation and encourage and facilitate the settlement of disputes in an amicable manner. In criminal cases, for instance, Section 73 of Act 459 provides that:
Any court, with criminal jurisdiction may promote reconciliation, encourage and facilitate a settlement in an amicable manner of any offence not amounting to felony and not aggravated in degree, on payment cases of compensation or on other terms approved by the court before which the case is tried, and may during the pendency of the negotiations for a settlement stay the proceeding for a reasonable time, and in the event of a settlement being effected shall dismiss the case and discharge the accused person.
This provision reveals that courts may push for the settlement of disputes outside the normal trial process and shall dismiss a case that has been duly settled through any of the forms of alternative dispute resolution.
3. The Chieftaincy Act, 2008 (Act 759):
In Section 30 of Act 759, it is provided that:
The power of a chief to act as an arbitrator in customary arbitration in any dispute where the parties consent to the arbitration is guaranteed.
This provision recognises the existence of customary arbitration and recognises the power of the chief to act as an arbitrator in such proceedings.
In the case of Ampofo v. Attorney-General & the President of the National House of Chiefs (J1 8 of 2008) [2011] GHASC 54 (20 July 2011) , the Supreme Court of Ghana, in commenting on Section 30 (supra) , said that:
individual chiefs continue to exercise an adjudicatory role only as customary arbitrators, which role is to be sharply distinguished from a judicial one.
…
The distinction between a judicial and an arbitration process lies in the consensual nature of an arbitration. Nobody can be compelled to submit himself or herself to arbitration.
4. The High Court (Civil Procedure) Rules, 2004 (C.I. 47):
In Order 64 of C.I. 47, provisions are made for a party to apply to the court at any time before final judgement; the appointment of an arbitrator, among others.
Conclusion:
This note discussed alternative dispute resolution as consisting of methods of resolving disputes otherwise than through the normal trial process. These methods include negotiation, mediation, and arbitration and have been recognised as means for resolving disputes in Acts 459, 759, and 798 and in C.I. 47.
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