INTRODUCTION TO ADR/ WHY ADR IN THE
COURT?
BY JUSTICE MARFUL-SAU, JUSTICE OF APPEAL.
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Conflict in diverse forms have become part of
human life since creation. Eg dispute between
Cain and Abel being the earliest conflict
recorded.
Conflict is unavoidable in any society hence
the need to device methods of managing
them anytime it shows up between nations,
families, individuals, social groups and
business partners.
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FOUR TYPES:Power Based Approaches:- Self- Help
Right Based Judicial Processes:- Arbitration
and Litigation/Adjudication, Rent a
Judge(Private Tribunal)
Interest Based Processes:- Mediation,
Negotiations, Early Neutral Evaluation
Mixed Processes:- Med-Arb, Mini Trial
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As a nation the method of dispute resolution
bequeathed to us by the colonial masters was
litigation through the courts.
Litigation in Ghana is adversarial in nature,
highly aggressive, confrontational and very
divisive.
The trial of disputes in the court rooms are
characterized by tense atmosphere which
increasingly becomes competitive, hostile and
acrimonious. In some cases destroying family
relations from one generation to the other.
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Before the introduction of litigation in the courts
however our chiefs, heads of family and
communal leaders settled disputes peacefully in
their palaces using traditional method of dispute
resolution characterized by the application of
unwritten rules founded on the customs and
traditions of the community.
With modernization and the increased
complexities in human and corporate behaviour
the traditional way of settling disputes faded
away especially in the cities. Litigation thus
became the most used method of dispute
resolution.
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Litigation has played significant role in
dispute resolution in Ghana.
Litigation is preferred to armed conflict and
the use of violence to settle scores.
Over the years research has shown that
litigation is incapable of addressing societal
needs in managing conflicts for various
reasons.
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1. Litigation is characterised by interminable
delays.For example Adu v.Kyeremeh 1987-88
GLR 137.This case was in court for 26years.
2.Court hearings are public with no privacy
except under certain circumstances.
3.Court room language can be mystifying
such that parties who own the dispute don’t
understand what happens between the court
and lawyers.
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4.In litigation Judges and Magistrates are
bound to apply strict rules on civil procedure
and evidence. These rules are time bound and
inflexible.
5.Court rules most times don’t allow evidence
on emotional matters like injured feelings,
resentments, anger or shame unless the
nature of case calls for its inclusion.
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6. Litigation has become very costly in both
financial and emotional terms. The high cost
of litigation remains a threat to access to
justice since the very poor may not afford.
Because litigation has been the most used
mechanism for dispute resolution the courts
are over burdened with cases which keeps
increasing leading to delays and low
confidence level in the Judiciary.
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In view of these set backs in litigation a new
method has emerged to supplement the work of
the courts in ensuring speedy and efficient
management of disputes. This method is ADR.
ADR has now been incorporated in the justice
delivery system and it has proved to be faster,
cheaper, efficient and friendlier in its application
and use. ADR is a new product which is been
marketed by legal communities all over the
world.
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1.It helps to reduce cases in court. By
decongesting the court it helps judges and
magistrates to devote time for research and
produced well reasoned judgments thus
promoting judicial confidence and
professionalism.
2.ADR provides a healthier method for resolving
disputes. Conflicts within ongoing relationship
such as families, landlord-tenant, business
partners calls for methods that seek to maintain
and preserve the relationship.
3. ADR in the court empowers the individual
parties. In litigation the parties are hardly in
control of the process because of the
structured rules. Apart from giving evidence
the parties are not heard. ADR gives to the
parties the satisfaction of having been heard
and contributed to a mutually beneficial
outcome.
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4.ADR also encourages parties to voluntary
comply with agreed terms of settlements. It is
natural that people who design solutions to
their own conflicts are more satisfied with the
outcome than people who have the solution
thrust on them.
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It takes away the disputants right of appeal or
review.
ADR does not give definitive decisions on a
case, hence no basis for precedents.
Decisions at ADR are not predictable.
Parties may use the ADR process to delay the
resolution of a case.
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Family and domestic disputes ,examplesmaintenance, custody issues, divorce,
property settlement and distribution.
Relationship cases eg marriage, parent/child.
Commercial cases.
Labour disputes.
Landlord/Tenant disputes.
Land and boundary disputes
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Constitutional issues.
Cases involving public policy and interest.
Human rights cases
Cases expected to guide or serve as a precedent
for the development of the law or government
policies.
Criminal offences except minor or non
aggravated offences.