By Wing Commander Frederick Bawa
Appropriate (Alternative) Dispute Resolution (ADR) refers to a group of methods of addressing or resolving disputes outside the traditional and administrative forums. ADR dates back in our history before the advent of the Europeans. The history of Ghana is full of various ADR mechanisms being employed in the multiple chiefdoms and kingdoms to resolve conflicts and disputes across the length and breadth of the country.
For reasons unknown, ADR has become the alternative rather than the main mechanism for dispute resolution in Ghana. Somehow, the advent of Europeans and colonialism has made us as a country put aside some essential aspects of our cultural heritage. Interestingly Europeans relied on and benefitted from forms of ADR in trading in the Gold Coast. For instance, most towns along the coastal belt had Palaver Houses where Palavers were held. Palavers were the main means of conflict resolution in Coastal Ghana during the 18th century. In the book, ‘Where the Negroes are Masters,’ author Randy J. Sparks (2014), details the vital role Corrrantee John and Caboceers played, using the Palaver system, in resolving trade and interpersonal disputes. While these palavers were often long and drawn-out, it is believed that their outcomes were restorative. Restorative justice approaches are indigenous to many African cultural systems. It is a preferred outcome in conflict resolution because of its sustainability and ability to promote social justice and peace. Over time, however, we adopted the colonial culture, laws and governance systems as superior to our methods. Unfortunate as this may be, my discourse today is not on roots of ADR in Ghana neither is it to advance the argument that ADR should be the main and not the alternative to dispute and conflict resolution in Ghana.
Disputes turn to disrupt normalcy in our homes, communities, and society at large. Anywhere there is a dispute, there is an uneasy calm, hatred, ill-feeling and somehow, a general feeling of insecurity be it in an interpersonal relationship, a family or the community. In seeking redress, disputants use the court system to find lasting solutions to their disputes. The legal, judicial framework is principled and based on strict adherence to rules and regulations without recourse to morality and what has been termed ‘human face’. Such a system is able to resolve conflicts/disputes using these rules and procedures, but the unanswered question remains whether the conflict is resolved and normalcy is restorable. In some instances, the day judgment is pronounced on a case is the day the ‘real conflict’ begins. A court ruling has no mechanism of fostering peace among disputants. It only makes a determination based on the evidence presented and the laid down procedures followed. Restoring relations or taking steps to restore normalcy among disputants are often neglected.
This is partly so because, in the legal system, disputants are not genuinely in charge of their cases. Their lawyers, who earned their fame, reputation and money based on the number of cases they ‘win’ are almost always focused on winning at all cost regardless of the social and emotional ramifications thereof. Some disputants are so unsure of the court proceedings to the extent that it is not uncommon to hear a client ask the lawyer after a hearing “what did the judge say?” The lack of procedural clarity in our formal justice delivery system makes matters worse.
ADR, on the other hand, seeks to give disputants the opportunity to be involved in the process and most at times own and determine the direction and outcome. Disputants using ADR Mechanisms are engaged throughout the process and play a significant role in determining an outcome which becomes morally binding on them. The outcomes on ADR Mechanisms such as Mediation are not imposed; the disputants determine them with the guidance and direction of a neutral third party. Thus the outcome of such a process is not only legally binding but morally and emotionally binding as well. Disputants in most cases are still able to maintain their relationships after a successful ADR process.
In addition to these, when the court system is used to settle or resolve family disputes, it most often than not mars the hitherto cordial and peaceful relations that had existed. In marriage and family disputes, disputants may still have responsibility for an ongoing interdependent relationship: i.e., in the form of maintenance, upkeep, child care, etc. In such disputes, based on my experience in ADR practice, ADR should be used as a first stop gap before litigation if ADR fails. Family disputes resolved via ADR tend to have more positive impacts on the disputants than when settled in the traditional courts. In most cases, disputants come to mutually acceptable agreement and understanding on how to handle their responsibilities especially in separation cases where children are involved and will still have to be cared for by parents who may be in conflict.
ADR covers a wide variety of tools and mechanisms used by practitioners to bring disputes to a closure. The documented and widely acceptable ones include Negotiation, Mediation, Arbitration, Conciliation, Pre-trial, Ombudsman, Mini Trial, Rent a Judge amongst others.
The importance of ADR in promoting peace and harmony cannot be overemphasised. Amongst others, ADR provides a healthier method for resolving disputes because it does not have wounds and scars after a successful ADR process. Disputants are not left in wonder as to the outcome because they were not insulated from the process. Disputants mostly shake hands, hug and still relate after a settlement or a resolution of a dispute.
ADR should be encouraged and made the first stop in all cases that are ‘ADR Friendly’ or within the ambit of ADR.
The author, Wing Commander Frederick Bawa is a military officer with the Ghana Armed Forces