The Appropriate Dispute Resolution (ADR) mechanisms in Ghana continue to make progress as more people get to appreciate its benefits.
Between 2007 and 2016, a total of more than 35, 925 cases were referred by the courts to mediation out of which about half were settled.
Apart from the growing number of private mediation centres that conduct mediation for walk-in parties, the Judicial Service’s Court-Connected ADR programme has appointed 67 private ADR centres in the districts across the country to handle cases referred by the courts to mediation.
Ghana’s ADR Act 2010 (Act 798) makes mediation optional for litigating parties.
The Act provides express provisions on Arbitration, Mediation and Customary Arbitration.
Unlike mediation, arbitration is to a large extent mandatory as provision is made for it in an agreement between parties, where parties agreed to resort to arbitration in the event of a disagreement in the execution of an agreement.
However, mediation is mainly voluntary and becomes optional after an action is initiated in court by a disputing party.
In Ghana, and like many other countries who have embraced ADR, there is no doubt about the benefits of mediation, which ensures the settlement of cases in a speedy, less expensive, non-adversarial manner and highly confidential manner, leading to the clearing of a backlog of cases in the traditional courts.
Judging from the benefits of ADR and mediation in particularly, there is the need for measures to build on the gains and ensure optimum benefits for the generality of the citizenry.
As the Judiciary makes efforts to enhance public awareness about ADR, it would be appropriate to find ways of making mediation mandatory for all civil cases.
A general mandatory mediation regulation would interchange the current judiciary process where legal actions are referred to mediation by the courts with the consent of the parties.
In that case, before a legal action in court, the parties would have been required to go for mediation, irrespective of the provisions of any agreement between them. The case then ends if it is settled by mediation. If not, then the aggrieved party would be at liberty to proceed with the original legal action.
That way, no time would be wasted by the court in handling the matter. Currently, the system where a legal proceeding roll out in court before the case is referred to arbitration somehow creates direct and indirect costs and time wastage for the parties and the courts.
The status quo for the court-connected ADR defeats the essence of ADR if allowed to stay. The ideal situation is for cases to first go for mediation.
For instance, if the mandatory mediation approach had been adopted in Ghana since the inception of the Court-Connected ADR programme, it means that out of the 35, 925 cases referred to ADR between 2007 and 2016, only half would have travelled to the courts.
The cost and time used in handling the other half in court which was later settled through mediation could have been saved.
By Nii Adotey/adrdaily.com