Feature: Justice And Society: Disputes That Never Need A Courtroom

Two brothers inherited their late father’s farmland, which was meant to be shared equally between them. The older brother owed the younger brother money but failed to pay it at the agreed time. The younger brother therefore seized the portion of the farmland allotted to his older brother in payment of the debt. Words were exchanged, and within a month, the younger brother retained a lawyer and filed a writ. Six years later, the case is still in court. The farmland lies idle because no one will plant on the disputed land. The brothers are no longer on speaking terms. The older brother has died, and the case is still pending.

This story is not unusual. It is ordinary, and the hardest part is that nothing in the dispute ever needed a courtroom.

Dispute Is Normal. Destruction Is Not.

Disputes are unavoidable. Our goals, values, temperaments, desires, and needs are simply not the same, and wherever people live and work together, those differences collide. The issue is not how to abolish disputes. It is what we do when they arise. Left unattended, disputes are expensive in ways we rarely consider: chaos, destruction of property, broken relationships, broken families, and, too often, loss of life. Handled well, using an appropriate alternative dispute resolution process, the same dispute can make a relationship stronger than before. Dispute resolution or prevention is not an opportunity for political gain, to make money, or a legal afterthought. It is an investment in the health of individuals, our families, our communities, and our country, Ghana.

What Is Alternative Dispute Resolution (ADR)?

Alternative Dispute Resolution (ADR) is the collective term, under the Alternative Dispute Resolution Act, 2010 (Act 798), for methods of settling disputes other than through the normal trial process. It is a spectrum of processes other than litigation. ADR is not a rival to the courts, nor is it a lesser form of justice. It works alongside them, and in Ghana it does so by statute (Act 798). Ghana did not import ADR. Ghana codified something it had been practising for centuries. ADR processes are used to resolve a wide variety of civil cases.

Benefits of ADR

ADR offers several potential benefits over lawsuits, depending on the issues at stake in the dispute. It is usually informal, cheaper than litigation, faster, more private than court records allow, and more flexible than court proceedings. It can defuse tension between the parties, preserve relationships because it is less adversarial, allow disputants to maintain greater control over the outcome, and create win-win solutions, among other benefits.

**Types of ADR **

The term ADR is often used loosely, without clearly differentiating among its processes to shed light on their purposes, usage, and outcomes. It therefore helps to be precise about what is on offer. It is expedient, then, to explain briefly what each approach means and does. The most common ADR processes include:

1. Negotiation, in which the parties in dispute meet to talk directly, identify concerns, explore options, and seek solutions by themselves.

2. Facilitation, a process in which a neutral person guides discussions in a meeting to assist a group in achieving its goals to the mutual satisfaction of all participants.

3. Mediation, a voluntary and informal process in which the disputing parties select a neutral third party to assist them in reaching a mutually acceptable settlement. Unlike a judge or arbitrator, the mediator has no power to impose a solution on the disputants; instead, the mediator assists them in shaping solutions to meet their interests. The solution is a resolution in which the disputants agree to implement the decisions reached during the process. The mediator does not issue a report on the proceedings; rather, the disputants may present their resolutions if they wish.

4. Conciliation, which is close to mediation, except that the conciliator may propose terms of settlement.

5. Arbitration, an adjudicatory dispute resolution process in which one or more arbitrators issue a judgment on the merits, which may be binding or non-binding, after an expedited, adversarial hearing in which each party can present proof and arguments (an award). Arbitration is procedurally less formal than court adjudication. The parties may set procedural rules and substantive laws. Arbitration can be voluntary, where disputants decide to use an arbitrator’s services to resolve their conflict. It is compulsory when imposed on disputing parties, usually resulting in a binding award, especially when one or both parties are very stubborn and refuse to yield to the logic of the facts or the public interest, or to agree to arbitrate voluntarily.

6. Customary arbitration is another type of ADR mechanism, practised especially in the courts of chiefs and kings across various communities in Africa. It is a voluntary submission of the dispute by the parties for the purpose of having the dispute decided informally, but on its merits. The award is not arbitrary but is reached after hearing both sides in a judicial manner. The process applies the rules of natural justice and fairness under Part Three of Act 798.

Other approaches include settlement conferences. These ADR mechanisms involve different processes that must be considered to achieve sustainable success. Effective conflict resolution requires identifying the right approach and applying it appropriately to achieve the expected outcome.

We have the above mechanisms at our disposal, alongside highly skilled individuals who are chartered mediators and arbitrators and who can contribute to peaceful coexistence for sustainable development. There are also institutions in Ghana that train ADR practitioners every year. ADR associations are being formed, and ADR weeks are celebrated annually, yet we are still overwhelmed by disputes and conflicts, with people killing one another. Is there something we are not doing right? Do qualified individuals need to hold high positions in society before they practise ADR? Is it possible to avoid politicising dispute resolution in order to promote peace?

The answers to these questions do not lie with the government alone, nor with the courts, nor with chartered practitioners. They lie with each one of us, in the ordinary moments before a quarrel turns into a case. Act early, while the parties are still exchanging harsh words. In a civil case, ask for mediation before you seek a writ; court-connected mediation is already available at little cost in courts and communities across the country.

What Would Make It Work Better?

Five things would move ADR from a useful programme to a national habit.

* Public awareness. Public awareness programmes must be promoted. Ghanaians do not know that mediators are available in their communities, that mediation may be free or low-cost, or that it can be accessed at a nearby court.

* Standards and accreditation. A mediator whom nobody trusts has no power at all. Consistent training, certification, and ethics must keep pace with demand.

* Contracts that look ahead. Every tenancy, contract, employment letter, and partnership agreement should state how disputes will be handled before one arises.

* Early referral. ADR works best before positions harden. By the time a writ is filed, half the damage is done.

* Teach it young. Educational institutions, including universities, could incorporate negotiation and mediation into their programmes and encourage peer mediation, not only in professional practice.

Conclusion

ADR mechanisms work and are effective. If you have been trained, practise in your family, your church or mosque, your workplace, and your community—and do not wait for a title or an appointment before you do it. Teach our young people to negotiate and to learn peer mediation, so that the next generation opts for dialogue first and the courtroom last.

Ghana did not import this idea. Long before Act 798, our communities settled disputes by bringing people before an elders’ hearing, fully hearing both sides, seeking consensus rather than victory, and closing the matter with a public act of reconciliation. The law has simply given that wisdom a modern name and legal backing. What remains is for us to use it.

The two brothers in the opening story lost six years, a farm, a fortune in legal fees, and, in the end, each other. Somewhere in Ghana today, another family is at the very beginning of that same journey. The difference between that family’s story and the brothers’ story should not be decided in a courtroom. It will be decided by someone saying early enough, “Let us sit down and talk.”

By Associate Professor Enyonam C. Kudonoo

OD/HR/ADR Consultant , Ashesi University

Email: [email protected]

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