TIME FOR MEDIATION AND ADR FIRMS IN GHANA AS WITH LAW FIRMS
INTRODUCTION
Judicial resolution of disputes has been
recognized as not only expensive but also adversarial in nature, often ending
with a win-lose settlement that worsens already strained relationships. This
underscores the need for an alternative and more appropriate dispute resolution
(ADR) process that allows for faster, flexible, mutually beneficial settlements
and fosters future relationships between the parties.
The concept of negotiations, conciliation,
mediation, and arbitration as appropriate and/or alternate dispute resolution
mechanisms to the adversarial process of litigation has been legally justified
in the Ghanaian legal system through various legislations such as the Alternative Dispute Resolution Act 2010
(Act 798), Labour Act 2003 (Act 651), Land Act 2010 (Act 1036), Chieftaincy Act
2008 (Act 759), Courts Act 1993 (Act 459), and the High Court (Civil Procedure)
(Amendment) Rules 2020.
Unfortunately, unlike traditional law firms that
are established and recognized for handling litigation through the courts, the
concept of having mediation and ADR firms to actualize the preference for
non-adversarial pre-litigation mechanisms, especially mediation and customary
arbitration, is yet to gain recognition. Unresolved disputes, especially in the
areas of interest in land, family relations, workplace, and business
transactions, hamper economic growth and development. Therefore, there is a
need to limit the number of cases that end up in the courts, creating avoidable
backlogs of unresolved disputes.
This article will examine the extent of
recognition given to ADR in the Ghanaian legal framework and advocate for the
recognition of private mediation and ADR firms to resolve disputes that need
not be litigated by law firms in the courts, as practiced in certain
jurisdictions such as Canada and South Africa.
THE GHANAIAN ADR LEGAL FRAMEWORK
The Alternative
Dispute Resolution Act 2010 (Act 798) regulates the ADR framework in Ghana.
Under Section 1, except for matters
relating to the enforcement and interpretation of the Constitution, national or
public interest, the environment, and primarily criminal cases, it now
encourages the settlement of disputes by arbitration, mediation, and customary
arbitration.
This makes litigation at the courts a matter of
last resort in the dispute resolution continuum. There is a school of thought
that the use of the word “alternative”
in the concept of ADR as an alternative to litigation is therefore
inappropriate. Hence, the preference for the term “Appropriate Dispute Resolution.” Appropriate in the sense that in
any dispute, the most appropriate dispute resolution mechanism (negotiation, conciliation, mediation,
arbitration, including customary arbitration, litigation) needs to be
applied, with litigation being one of them and not the first point of call,
with all others being alternate to it. I do share in that view. In fact, in the
continuum, litigation is the last resort when the relationship has broken down
or post-dispute relationship building is of no concern to the parties.
Specific Acts now encourage the use of mediation
and other ADR mechanisms before resorting to litigation, and not surprisingly
especially in areas such as land and labour-related disputes, which have a lot
of family and employer-employee issues that require post-dispute relationship
building.
Labour Act, 2003 (Act 651)
Sections 153, 154, & 157 of
Act 651 require
that every industrial dispute should be settled by means of negotiation,
mediation, or arbitration, hence ADR. It therefore encourages the use of
litigation in labour related issues as the last resort.
Land Act 2010 (Act 1036)
Section 98
(1) of Act 1036 states: “An action
concerning any land or interest in land in a registration district shall not be commenced in any court
unless the procedures for resolution of disputes under the Alternative Dispute
Resolution Act 2010 (Act 798) have been exhausted.”
The use of the word “shall” is very instructive, meaning that the courts will not
tolerate an action concerning land or interest in land in a registration
district if there has not been a prior attempt to resolve the dispute through,
for example, mediation.
Specific areas of the Land Act that put emphasis
on ADR are:
·
Compensation for Damages to Land
[Section 25 of Act 1036]: If you experience damage to your land, this
section explains how you can seek compensation. If you are not happy with the
Lands Commission's review of your case within 30 days, you can take your
complaint to mediation under the Alternative Dispute Resolution (ADR) Act 2010,
(Act 798).
·
Lease Renewal Disputes [Sections 50 (15)
& (16) of Act 1036]: If you cannot agree on renewing a lease,
these sections say you should first try to resolve the dispute through
mediation. If that does not work, you can then litigate the matter at the
court.
·
Boundary Disputes [Section 91(2) of Act
1036]: If there is a disagreement about the boundary of your land, the
Land Registrar is mandated to tell you to try mediation first. This means you
have to use mediation to resolve the boundary issue before any other action.
·
Disputes Over Large Scale Land Decisions
[Section 102 (7) of Act 1036]: If a clan or family is unhappy with the
Regional Lands Commission's decision on large-scale disposition of land issues,
they can turn to mediation under the ADR Act to resolve the matter.
·
First-Time Land Registration Disputes
[Section 104 (1)(C) of Act 1036]: If there's a dispute about
registering land for the first time, it is recommended to be settled through
mediation as outlined in the ADR Act 798.
·
Rejected Land Registration [Section 107
(4) of Act 1036]: If your application to register land is denied and
you are not satisfied after an appeal, you can use mediation to resolve the
issue. If mediation overturns the rejection, the Land Registrar has 30 days
under Section 107(8) to comply with the new decision. This is a mandatory
requirement and depicts the extent of authority given to outcomes of ADR
settlements.
·
Disputes Between Claimants [Section 115
(1) of Act 1036]: If multiple people claim an interest in the same
piece of land and cannot resolve the issue, they must use mediation under the
ADR Act to settle their dispute. This shows the extent to which the law places
importance on the ADR in better resolving issues related to interest in land.
·
Disputes Over Lease Transfers [Section
142 (3) of Act 1036]: If a lessor refuses to consent to the transfer,
sublease, or mortgage of a lease, the tenant can use mediation to resolve the
issue.
·
Disputes Over Lease Registration
[Section 143 (3) of Act 1036]: If you are unhappy with the Land
Registrar's decision not to register your lease, you must use mediation to
address the problem. This is a mandatory requirement.
·
Rectification Disputes [Section 194 (5)
of Act 1036]: If you disagree with the Land Registrar's decision on
correcting the land register, you can seek resolution through mediation.
·
Mistakes by the Lands Commission
[Section 198 (2) of Act 1036]: If the Lands Commission makes a mistake
that prevents you from acquiring land or an interest in land and you are not
properly compensated, you can take the matter to mediation.
·
Unresolved Reviews and Appeals [Section
201 (2) of Act 1036]: If you are not satisfied with the Lands
Commission's reviews and appeals with respect to the Land Registrar, you can
use mediation to resolve your concerns.
·
Unregistered Instruments [Section 225(6)
of Act 1036]: If the Lands Registrar does not register an instrument
and you disagree with the reasons, you can seek mediation under the ADR Act.
·
Compensation Disputes [Section 253 (3)
of Act 1036]: If you are unhappy with the compensation assessment by
the Lands Commission with respect to the value of interest in land, you can
refer the matter to mediation after a review.
·
Conflicting Land Claims [Section 254 (1)
of Act 1036]: If there are conflicting claims in the interest or
rights to land, these must be resolved through mediation.
·
Compensation for Restoration of State
Occupied Land [Section 254 (1) of Act 1036]: When there is a
disagreement about compensation to be paid to the owner of land with respect to
the restoration of land after the term the State has occupied the land, the
State is compelled to settle the issue through ADR.
Land-related disputes have
historically taken very long times to be settled through litigation, and the
new Land Act now putting more emphasis on ADR is a positive development to
reduce the burden on the court system. All the above sections of Act
1036 give priority to the use of ADR in the
resolution of land disputes, with Section 98 (1) in particular making it generally obligatory for disputes in land or
interest in land in a registration district to first be resolved through ADR
mechanisms before being settled in court.
Courts
Act, 1993 (Act 459)
Section 72 of Act
459, requires that civil courts and
their officers should help people resolve disputes peacefully by promoting
reconciliation and facilitating amicable both-win settlements instead of the
win-lose outcome before the court.
Section 73 of Act 459, requires that for
minor crimes that are not serious and do not involve aggravating factors (like
the use of a weapon or causing serious injury), criminal courts can encourage
reconciliation and settlement. If an agreement is reached and the court
approves, the court can pause the proceedings, and if a settlement is reached,
the court will dismiss the case and release the accused.
High Court (Civil
Procedure)(Amendment) Rules, 2020 (C.I. 133)
Under the above rule, parties can apply in writing
to try to settle a case through mediation or other means, pausing the court
proceedings. Also, unless the law does not allow for settlement by the parties
themselves, the Court can ask if they are willing to attempt settlement through
mediation in accordance with the ADR Act
798 as per directives by the Chief Justice.
The above sections
of the Courts Act 1993 (Act 459) and C.I. 133 encourage courts to help
parties settle disputes amicably through Alternative Dispute Resolution (ADR)
in civil cases and minor criminal cases. This practice, known as Court Connected ADR, involves referring
cases to registered mediators, reducing court backlogs and allowing courts to
focus on cases that cannot be settled through ADR or are more complex. There
is however the need to extend this to private mediation and ADR firms.
MEDIATION AND ADR FIRMS AS
RESPONSE TO THE LEGAL FRAMEWORK
Mediation is assistance to two or more
interacting parties by third parties who (usually) have no authority to impose
an outcome (Kressel and Pruitt 1989 as cited in Wall, Stark, and Standifer
2001). Most scholars agree that mediation has three defining elements: (1) assistance or some form of
interaction by (2) a third party who
(3) does not have the authority to
impose an outcome (Wall, Stark, and Standifer 2001).
The Judicial Service Court Connected ADR Practice
Manual defines mediation as “a process by
which a neutral third party, a mediator, facilitates communication between the
parties to assist the parties to reach a mutually acceptable settlement.”
There are various approaches to a mediation
process, and section 74 (6) of Act 798
allows the mediator to use the most appropriate manner in resolving a dispute
whilst taking into account the wishes of the parties. One such approach is the PULSE mediation model, which is about
People Using Language Skills Effectively (Love 2008). It is a tested process in
enhancing the interactions between the parties in a dispute, keeping them
engaged in a conversation to mutually reach a both-win settlement and to
improve their relationship.
Once the laws of Ghana encourage the use of
mediation as part of the dispute resolution processes with litigation being the
last option, it is appropriate that disputants are given the framework to access
ADR services outside the court system as against first resorting to litigation
and the matter being referred by the court to internal court mediators through
the Court Connected ADR system.
If the laws are
promoting the use of mediation and other ADR dispute resolution mechanisms
prior to litigation, then the establishment of private mediation and ADR firms,
similar to how we have law firms for litigation, is the way forward. This would
effectively put the ADR Act into action, positioning mediation as an
appropriate settlement mechanism for preserving relationships, rather than
merely an alternative to litigation when swords have already been drawn and
crossed to the point of a conflict situation with no regard for preserving the
relationship.
Mediation can
successfully be employed in disputes relating to lease renewal, interest in
land, financial investment, family relations, intellectual property, workplace
and labour-related disputes, corporate governance, and many more. Disputants
will be able to engage the services of these private mediation firms for
amicable settlement, especially in situations where relationships need to be
preserved. When mediation fails, a certificate of a failed mediation attempt
can be issued, particularly in cases where the law makes pre-litigation
mediation mandatory. Parties can then seek the services of lawyers to begin the
litigation process in the courts. Consequently, the number of cases that end up
in the courts due to mere misunderstandings or disputes that could have been
resolved between the parties themselves will drastically reduce.
CHALLENGES IN RECOGNITION OF
MEDIATION AND ADR FIRMS
Regulatory Issues, Public Awareness, and Acceptance:
The history of law firms indicates they
started in ancient Rome when many lawyers were clerics. This was without
regulation until being formalized in the 13th century in England through Inns
of Court in London, playing a crucial role in training and regulating
barristers. In the 18th and 19th centuries, as commerce and industry grew, the
demand for legal services increased, and law firms began to form. The 20th
century saw significant formalization and regulation of the legal profession.
Bar associations and law societies were established in many countries, setting
standards for education, ethics, and practice.
As with law firms, mediation and ADR firms
might take the same process of evolving from informal self-regulated practices
to more formal legislative regulation. Should it gain the needed public
acceptance, there will be the need to regulate the practice with a separate
legal framework as with the Legal
Profession Act 1960 (Act 32). This will enhance professionalism with
respect to a code of practice for mediation and ADR practitioners.
Practitioners must have obtained a recognized professional practicing
certificate from a recognized institution as having obtained the requisite
qualification and training. Formal regulation will then give confidence to the
general public with respect to the conduct of practitioners with a channel of
redress should there be a misconduct.
Push Back from Existing Law Firms
One need not be a
lawyer or even have a law degree to learn and understand non-judiciary dispute
resolution mechanisms as in ADR. The concept of Mediation and ADR firms in the
Ghanaian dispute resolution space will be a disruption of the status quo
occupied by law firms. The legal fraternity is even trying to limit the number
of people joining, let alone their space being taken over by non-lawyers with
respect to ADR practices, and this will not come easily. This is not an
ordinary change but disruptive in nature, and it is expected that lawyers will
resist the recognition of private mediation and ADR practice co-existing with
them.
WAY FORWARD AND JOB CREATION
OPPORTUNITIES
Actualizing the ADR Act 2010, (Act 798) and
prioritizing non-judicial resolution of disputes in Ghana can create new career
paths and employment opportunities. Establishing private mediation and ADR
firms as well as integrating ADR practices within traditional law firms is a
largely untapped area. This initiative requires a collective effort from the legal community, government and
policymakers, the judiciary, and public awareness campaigns.
Legal Community
·
Professional ADR Training:
Lawyers should embrace professional ADR training, and traditional law firms
must integrate ADR practices within their firms. A lot more lawyers are being
proactive about the future dispute resolution landscape beyond litigation and
are getting formal professional training in ADR practice, especially in
mediation, adding that skill set to their training in advocacy and litigation.
·
Establish ADR Departments: By
setting up ADR departments and collaborating with non-lawyer ADR practitioners,
law firms can enhance their service offerings and better meet their clients'
needs as a one-stop dispute resolution practice. A collaborative effort between
the legal profession and ADR practitioners is the way to go.
·
Amend Regulations: This may
necessitate amendments to the laws regulating law firms, ensuring a clear
distinction (or "Chinese wall") between the legal and non-legal
departments within their practices.
Policymakers and Government
Support
·
Economic Impact: Disputes in
workplaces, families, or land-related issues affect productivity, thereby
impacting the economy negatively. Policymakers and the government must
therefore be interested in creating an enabling environment for mediation and
ADR practice to thrive and to create employment.
·
Certification and Regulatory Framework:
Policymakers and the government must develop a formal framework for the
regulation of ADR practitioners and firms, allowing them to coexist with
traditional law firms. This includes setting standards for training,
certification, and professional conduct, ensuring that ADR services are
delivered with the highest level of professionalism and integrity. The Gamey
and Gamey ADR Institute currently offers professional mediation and ADR training,
and their services would be helpful in developing this regulatory framework.
Judiciary Support and Public Awareness
·
Judiciary's Role:
The judiciary is well-positioned to champion ADR awareness, showing the public
that courts prefer amicable settlements to ease the court's workload. This
would help to resolve disputes without lengthy litigation to preserve
relationships.
·
Active Referrxals: Beyond Court
Connected ADR, the judiciary should actively refer cases to private mediation
and ADR firms, endorsing their services and legally adopting their outcomes as
part of the dispute resolution process.
·
Public Education: Continuous
education about the benefits of ADR is essential. This can be achieved through
awareness campaigns, workshops, and collaborations with the judicial service
beyond the current annual ADR week.
Vision for the Future
Imagine a future
where mediation and ADR firms are as commonplace as traditional law firms in
Ghana. Disputes are resolved swiftly and amicably, preserving relationships and
fostering a culture of collaboration and mutual respect. A future where the
courts are free from backlog, able to focus on cases that truly require
litigation and judicial intervention. Lawyers and ADR practitioners working
hand in hand, each bringing their unique expertise to the table, ensuring that
dispute is not only done but seen to be done in the most efficient and
effective manner.
CONCLUSION
Litigation with the use of lawyers is one method of
resolving disputes. ADR, especially mediation, is another method that is less
expensive and has faster resolution times, particularly when the PULSE
mediation methodology is used. Unlike courtroom litigation, which often results
in win-lose outcomes that seldom build relationships, mediation and other ADR
non-judicial dispute resolution methods are more efficient, less adversarial,
and tailored to the needs of the parties. They result in disputing parties
finding mutually acceptable, both-win solutions that build relationships going
forward, especially in disputes involving family or business issues where
post-conflict relationship continuity is paramount.
The courts are inundated with cases that are mere
blips in misunderstandings and not yet crises where relationships have broken
down to be litigated by lawyers. This has created unnecessary backlogs of
unresolved disputes that are being resolved through mediation services attached
to the courts as Court Connected ADR. However, having disputing parties first
subject themselves to litigation at the courts before being referred to the
Court Connected ADR does not only waste time but defeats the intent of most of
the laws of Ghana that now encourage ADR before judicial resolution of
disputes.
The opportunity exists to have pre-litigation
dispute resolution through private mediation and ADR firms, and their growth
has to be supported. The way forward is private mediation and ADR firms as we
have in other jurisdictions, and their establishment akin to traditional law
firms is not only feasible but also necessary. Lawyers, after undergoing professional
training in ADR practice, can also have the opportunity to set up ADR units in
their law firms and should not unduly resist this change that will impact their
area of practice with respect to dispute resolution.
The potential for private mediation and ADR practice
to transform the dispute resolution landscape and create jobs in Ghana is
immense. By embracing this progressive approach, we will build a more
harmonious society with respect to post-dispute relationships with a positive
impact on the growth of the economy.
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