In brief, could you please summarise the systems of ADR available in Ghana and the processes involved? Historically, ADR in Ghana first existed in the form of customary arbitration. During Ghana’s pre-colonial era and prior to the recent emergence of formal alternative dispute resolution mechanisms, customary arbitration was administered by the prominent natives of a clan in ‘colonial courts’ or via the extended family system. Today, customary arbitration continues to involve the resolution of disputes according to the specific and unique cultural norms, practices, and values of each tribe; it is a well-established relic of ADR that is recognised by law and the Ghanaian legal community. Nonetheless, arbitration, mediation and negotiation are the primary and prevalent systems of ADR available in Ghana today. Mediation and negotiation are non-adjudicatory, whereas arbitration is adjudicatory. During arbitration, parties to a dispute may submit their case to a neutral third party whose role is to evaluate the arguments of each party and render a decision based on the substantive merits of the case. The neutral third party shall then issue a final decision which becomes an award that is binding on the parties. A Ghanaian High Court may enforce the arbitral tribunal’s decision through enforcement proceedings initiated by a successful party. On the other hand, mediation, which is also known as assisted negotiation, involves parties employing the services of a neutral third party to act as a facilitator who assists the parties in resolving their common dispute. Parties can enter into a mediated agreement if mediation is successful. Regarding negotiation, parties, either on their own or through their representatives, may convene and attempt to resolve their issues without the involvement of a third party. This is undertaken by exchanging offers and counteroffers with the aim of reaching a settlement through negotiation. In cases where negotiation is successful, the parties may enter into a negotiated settlement which may form the basis of a consent judgment that may then be formally adopted in a Ghanaian court if the negotiation is court-connected. Hybrid ADR methods and outgrowths, which are also utilised in Ghana, include med-arb, arb-med, expert determination, neutral evaluation and judicial settlement conferences. These ADR mechanisms, in totality, reflect international ADR standards, practices The Adoption of ADR in Ghana Throughout the world, there is a visible shift in the legal sector as organisations and individuals opt to resolve disputes through mediation, arbitration and other means rather than through litigation. The same is true in Ghana, where the growing popularity of alternative dispute resolution is rubbing up against a generally conservative legal ecosystem. Accredited arbitrator Beyeeman Akyea divulges more on the current ADR climate of Ghana in this feature. Expert Insight 58 LAWYERMONTHLYOCTOBER 2022
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