Lawyer Monthly - October 2022

ADR was previously a side attraction reserved for unconventional pioneering practitioners or those approaching the sunset of their legal careers. However, the increasing case congestion within Ghana’s courtrooms has compelled the legal community to find an alternative to litigation in ADR. For instance, to catalyse the adoption of ADR, the courts, in enforcing the Alternate Dispute Resolution Act, make considerable use of court-connected ADR, which is attached to all High Courts and some District Courts in Ghana. Furthermore, to reduce court congestion, Order 58 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) mandates that pre-trial settlement conferences be held in commercial courts. This simultaneously affords judges more time to effectively handle cases which are not amenable to ADR. In exercising their duties, responsibilities and legislative mandates, it is also noteworthy that governmental institutions employ various ADR processes. These institutions include the National Labour Commission, the Commission on Human Rights and Administrative Justice (CHRAJ), the Judicial Service, the Department of Social Welfare and the Legal Aid Commission. These changes have had the snowball effect of expanding the ADR community within Ghana by encouraging young lawyers to proactively train in order to specialise in ADR and demonstrate their expertise through private practice and thought leadership. These developments are shifting the spotlight onto ADR in Ghana. Institutions such as the Ghana Arbitration Center in Accra, the Ghana ADR Hub in Kumasi and the Ghana Association of Certified Mediators and Arbitrators are at the forefront of making ADR more accessible and well-known to the general public. Are there any legislative or cultural obstacles to its more widespread adoption? ADR has become an integral part of Ghana’s legal and judicial system, providing flexible, confidential and more efficient conflict resolution mechanisms which serve as viable alternatives to traditional litigation. Despite this, there are still significant limitations that have stifled the growth and adoption of ADR mechanisms in Ghana. In the first premise, under law, certain types of disputes are not amenable to ADR. According to the Matrimonial Causes Act of 1971 (Act 367), divorce proceedings can only be initiated in a Ghanaian court; therefore, a marriage cannot be formally dissolved through ADR. In addition, Act 798 stipulates that matters involving the national or public interest, the environment and the enforcement and interpretation of the 1992 Constitution of Ghana are not arbitrable or amenable to other forms of ADR. These legislative obstacles define and limit the scope of ADR in Ghana. As regards culture, the Ghanaian legal ecosystem has maintained a conservative stance concerning dispute resolution, and thus litigation remains the default method for resolving legal issues. Parties and their lawyers are typically reluctant to use ADR as a first–line means of resolving disputes. This is primarily fuelled by the negative stereotype that ADR, being a voluntary mechanism, is a waste of time and resources since parties may withdraw their consent at any time, as well as the fact that dissatisfied I would strongly encourage young and less experienced legal practitioners to view ADR not as a side attraction but as a primary and viable means of resolving disputes. Regarding arbitration, the ADR Act aligns the Ghanaian ADR practice with international standards by adopting provisions and principles contained in the UNCITRAL Model Law, such as the principles of separability, kompetenz – kompetenz and amiable compositeur. Lastly, Act 798 shapes mediation by making provision for it to be used as a court-connected ADR process to enhance Ghana’s Judicial Service. Under the ADR Act and the Courts Act 1993 (Act 459), the court may refer a scope of matters to mediation. This helps to ingrain ADR within the fabric of dispute resolution in Ghana. What other key statutes govern the practice of ADR in Ghana? In Ghana, other vital statutes that govern the practice of ADR include the High Court (Civil Procedure) Rules, 2004 (C.I 47), the Courts Act, 1993 (Act 459) and the Labour Act, 2003 (Act 651). How have you witnessed the ADR landscape develop during your time as a practitioner? I have particularly noticed the slow but gradual adoption of ADR within Ghana’s legal dispute resolution system. 60 LAWYERMONTHLYOCTOBER 2022

RkJQdWJsaXNoZXIy Mjk3Mzkz