History of Alternative Dispute Resolution

Introduction:

This note will discuss how alternative dispute resolution (ADR) evolved generally and how it evolved in Ghana.

History of ADR Generally:

There is consensus that the search for alternative means of resolving disputes other than by litigation began after a recognition that there are challenges with litigation. According to Nolan-Haley [1]:

ADR assumed the attributes of a law reform movement in the early nineteen seventies when many observers in the legal and academic communities began to have serious concerns about the negative effects of increased litigation.

Among others, these negative effects included high legal costs, the congestion of the courts with cases, and delays.

In an attempt to resolve these challenges, about 48 years ago, there was the conveyance of the Pound Conference in 1976 to find new ways to resolve disputes other than through litigation. Nolan-Haley [1] extensively discussed this event as follows:

One well known effort in the search for alternatives occurred in 1976 when former Chief Justice Warren Burger convened the Roscoe E. Pound Conference on the Causes of Popular Dissatisfaction with the Administration of Justice (Pound Conference) in Saint Paul, Minnesota. Academics, members of the judiciary, and public interest lawyers joined together to find new ways of dealing with disputes. Some of the papers that emerged from this conference such as Professor Frank Sander’s classic, “Varieties of Dispute Resolution,” formed the basic understanding of dispute resolution today.

“Isn’t there a better way?” asked former Chief Justice Burger and the alternatives movement was officially off and running. The organised bar officially recognized the ADR movement in 1976 when the American Bar Association (ABA) established a Special Committee on Minor Disputes that has now become the Dispute Resolution Section of the ABA.

In addition to this conference, other academics like Lon Fuller are said to have championed the development of alternative ways to adjudication other than the present “all or nothing” approach to dispute resolution. Other academics like Frank Sander proposed “a Multi–Door courthouse where individual disputes would be matched to appropriate processes such as mediation, arbitration, fact finding or malpractice screening panels.” [1] This idea is said to have been adopted by the American Bar Association, and three multi-door courthouses were established in the United States. These programs were successful and were consequently proliferated.

History of ADR in Ghana:

A. Prior to Colonialism:

Prior to colonialism in Ghana, what is now considered alternative dispute resolution was the main method of dispute resolution. Then, family members and community and religious leaders actively took part in the resolution of disputes as neutrals.

B. During Colonialism:

During colonialism, several events led to a recharacterization of this method of dispute resolution as alternative dispute resolution. Under the 1850 Constitution of Ghana, for instance, the Supreme Court Ordinance of 1853 was made that established the Supreme Court with a civil and criminal jurisdiction equivalent to that of the Queen’s Bench, Court of Common Pleas, and Exchequer. In the years to follow, several other courts were formed, with a clear hierarchy [1]. This set the stage for a recharacterization of the main means of dispute settlement as alternative dispute resolution and the courts to be considered the main means of dispute resolution.

However, ADR was still given some recognition during this period. For instance, under the 1874 Constitution of Ghana, the Supreme Court was established (again) by the Supreme Court Ordinance of 1876, and Bennion, in speaking on the provisions of the Ordinance, reported that:

A notable provision was the duty imposed on the court to promote reconciliation of differences among persons over whom it had jurisdiction, and to "encourage and facilitate the settlement in an amicable way, and without recourse to litigation, of matters in difference between them.". This duty extended not only to civil disputes but criminal matters "not amounting to felony and not aggravated in degree."

This represents one of the earliest provisions recognising ADR as a form of dispute resolution.

Also, the case of Kwasi et al. v. Larbi [1953] AC 164 reveals that community leaders were still involved in dispute resolution during the colonial period. In that case, there was a dispute concerning the boundaries of the parties’ land. The case went before the Native Court but was later withdrawn to be settled through arbitration. The arbitration was moderated by eleven persons who were community elders. During the course of arbitration, one of the parties withdrew from the arbitration, but the arbitrators proceeded with the hearing and gave an award, which was adopted by the Native Court as its judgement. This decision was appealed to the Native Appeal Court, then to the Land Court, and ended up at the West African Court of Appeal, which held that processes before the eleven elders “was not a mere negotiation for a settlement but that it was a formal arbitration (a form of ADR) for the following reasons:

(a) the suggestion for the withdrawal of the case came, not from the parties themselves, but from the local Odikro;

(b) the parties gave their consent;

(c) it seemed improbable to their Lordships that the "intervention of the Odikro and the Elders was for the purpose of aiding a settlement by negotiation rather than for the purpose of discharging a judicial function in the form of an arbitration";

(d) the proceedings before the elders had "no resemblance to negotiations for a settlement but have all the marks of a well-conducted formal arbitration.

The court also dismissed the contention of the withdrawing party that “the award was not under native customary law binding on the appellants since they withdrew from the proceedings at the time of the inspection of the land.” It also added that under customary law, there is no right to withdraw from an arbitration after the award is made.

The decision in Kwasi et al. v. Larbi (supra) reveals that after the establishment of a court system, customary means of resolving disputes, which existed before the establishment of a court system with civil and criminal jurisdiction, persisted. Those customary means were, however, affected by processes such as urbanisation, the nuclearisation of the family, the complexity of legal disputes, and questions about which religious, communal, or traditional authority to whom disputes ought to be submitted.

C. Post Colonialism:

Upon the attainment of independence, various pieces of legislation were passed that recognised and promoted ADR. One of such legislation was the Chieftaincy Act, 1961 (Act 81). In Section 5 of Act 81 , it was provided that:

The power of any chief to act extra-judicially as an arbitrator under customary law in any dispute in respect of which the parties thereto consent to his so acting is hereby preserved.

In the case of Darko and Another v. Amoah [1989-90] 2 GLR 214 , the Supreme Court of Ghana, in commenting on this provision, said:

The section only sanctions the prevailing customary practice whereby chiefs are invited by their subjects to arbitrate on issues brought voluntarily before them by the parties. Section 5 is an ex abundanti cautela provision for the avoidance of doubts and receives the draftsman’s imprimatur to confirm that a chief sitting on arbitration does not violate Act 81.

Their lordships, however, added that this section does not cover a situation where a writ has been issued before a court and civil proceedings have commenced.

Also, the Arbitration Act, 1961 (Act 38) was passed. This was “an ACT to regulate the settlement of differences by arbitration to provide for the enforcement of awards and for related matters.”

Now, the main piece of legislation that regulates ADR is the Alternative Dispute Resolution Act, 2010 (Act 798), which was discussed extensively in the introductory note.

Conclusion:

In countries such as the United States, ADR started some forty-five years ago. However, there is evidence that it was practiced during colonialism and after the establishment of a formal court system.