Broadly speaking, Alternate Dispute Resolution (ADR) programs have been developed by courts and legal agencies to complement and support legal processes of dispute resolution.[i]
ADR, as mentioned in the previous article[ii], is any method of resolving disputes other than litigation. So great has been the impact of ADR that, all over the world, the courts have embraced ADR in their adjudication process. This paper takes a look at CCARD in Ghana.
History of CCADR
In recognition of the need for a mechanism that would complement the regular court system, for a faster and more convenient means of resolving disputes in court, the Chief Justice of Ghana in 2001 set up an ADR Task Force. Their objective was to put together a policy direction that incorporates ADR in the court adjudication process. Based on the task force’s recommendations, a policy directive was issued by the Chief Justice which adopted ADR as a core component of justice delivery in Ghana.
CCADR week 2022[iii]
ADR week is characterized by various programmes and activities which take place to create awareness of the availability of ADR as a complement to the adjudication process in Ghana. A total of one hundred and thirty one (131) courts, comprising thirty one (31) circuit courts and ninety eight (98) district courts actively participated in this year’s ADR Week from Monday, March 14 to Friday, March 18. These statistics show that admirably, Ghana is toeing the line of court-connected ADR. This year’s weeklong celebration was no exception as six hundred and thirty five (635) trained mediators participated in resolving disputes, especially during the ADR week.
Her ladyship Justice Charity Larbi in delivering her speech at the just ended launch of ADR week at the Ho Court indicated that;
“People who design solutions to their own conflicts are more satisfied with the outcome than people who leave the resolution of their dispute in the hands of another person or authority adding that they have a stronger commitment to comply with such agreements than those for which they have had no say.”[iv]
One cannot help but agree with this statement.
As the name suggests, Court-Connected ADR is the collective name given to the various methods of resolving disputes that are available to the court other than the court trial processes. CCADR may take the form of negotiation, mediation, conciliation, arbitration, customary arbitration, med-arb, and neutral case evaluation.
Initiation of CCADR
In Ghana, mediation is the most commonly used method of CCADR. Parties to a dispute before a court of competent jurisdiction may begin court-connected ADR either by themselves (or their representatives) after they have appeared before a court and consented to have their dispute settled by ADR or by the initiative of the court. A court may at any stage of the proceedings refer a matter to CCADR. The court may also refer a case to CCADR where one party communicates to the court asking that the dispute be settled amicably and the other party agrees to the request.
An order by the court for parties to submit their dispute to CCADR will specify that the matter in dispute is to be settled by ADR, the parties would be required to appear before the ADR officer and the announcement of the outcome of the procedure would be made no more than thirty (30) days after having reported to the ADR officer. Realistically, there might be an extension of the thirty (30) days because the parties may require some more time to settle their dispute.
Once the parties have reported to the ADR officer, the process is briefly described to them and they select a trained neutral or an ADR service provider from a register of trained neutrals and ADR service providers kept by the Court Registry.
Perks of CCADR
One advantage of CCADR is that disputants are permitted to determine the language in which the ADR sessions should be conducted. Currently, the common languages in which the ADR sessions are conducted are; English, Asante Twi, Akuapem Twi Fante, Nzema, Ewe and Ga. This is not to say that litigants are not permitted to communicate in their local languages. Nevertheless, the challenge of getting an interpreter who may not adequately communicate what a party would want to say is an enigma that cannot easily be overlooked.
It is not uncommon to see parties tugging at the gowns of their lawyers, just to prompt them to ask a particular question during cross-examination. Sometimes, ‘the prompt’ is to alert the lawyer that the witness on the stand is not telling the truth; thus the questioning style should be changed to ensure that the truth is ascertained. During the CCADR process, parties are at liberty to delve deeper into the matter. This is a great advantage that CCADR has over litigation.
CCADR allows parties to freely ‘release the load off their chest’ to prevent the harboring of any ill feelings towards each other. It also allows parties the opportunity to understand each other better and to arrive at a mutually beneficial agreement. Parties, more often than not, after the CCADR process, would leave more relaxed and ready to see the end of their dispute.
Close of proceedings
The neutral may terminate proceedings within thirty (30) days if parties are unable to reach a settlement and a thirty (30) day extension is not sought. Where the parties fail to settle, and proceedings are terminated, the ADR officer is informed and he, in turn, informs the parties to appear in court at the next sitting. At the close of the ADR session, the written information gathered at the ADR session would be destroyed in the presence of the parties; all tape recordings, video clips, pictures, receipts, maps, and other information in permanent form would be returned to their rightful owners.
A careful reading of the foregoing discussion however would make one less apprehensive about court-connected ADR. After all, if a litigant aims at having his “day in court” then that would be fulfilled as court-connected ADR takes place right on the court premises. Looked at from another angle, parties are given the ability to speak to the adjudicator, who in this case is the mediator” which might not be the case during court proceedings. CCADR is here to stay and parties to disputes should embrace it as a more amicable means of settling their dispute.
The second part of this paper would take a look at some of the challenges that CCADR currently faces and the way forward for CCADR in Ghana.
[i] Larry Ray and Anne L Clare, ‘The Multi-Door Courthouse Idea – Building the Courthouse of the Future Today’ (1985) 1 Ohio St J on Disp Resol 7, 12.
[ii] Lauraine Mercy Ewurama Ghartey , An Exposé on Alternative Dispute Resolution – The Ghana Arbitration Centre in Focus, Business and Financial Times; [February 3 2011]: page 12.
[iii] https://adrdaily.com/judicial-service-declares-march-14-18-adr-week/ Assessed on 14/03/2022
[iv] https://www.businessghana.com/site/news/general/258624/2022-ADR-Week-launched-in-Ho Accessed on 16/03/2022
By: Lauraine Mercy Ewurama Ghartey – Lauraine is a Lawyer called to the Ghana Bar. She holds an LLM degree in International Business Law from Osgoode Hall Law School – York University, Canada.