As more people seek mediation to resolve their disputes, there is a growing need for a good public understanding of the professional mediation process in Ghana. We bring you the mediation series to share ideas on the mediation processes under Ghana’s ADR Act 2010, Act 798.
How to submit a matter to Mediation
First of all, mediation is a voluntary dispute resolution mechanism, and disputes, other than those that relate to crime, the environment and national/public interest, can be submitted to mediation for an amicable, inexpensive, timely and confidential resolution.
Parties in dispute must both voluntarily agree to mediate before mediation can start. One party can initiate the submission process for the other party to agree or not.
Section 63 of the ADR Act defines the process for submission of disputes to a Mediator or a mediation institution.
Among other instructions, Section 63 (1) states that “A party to any agreement may with the consent of the other party, submit any dispute arising out of that agreement to mediation by an institution or a person agreed on by the parties.
(2) A submission to mediation may be made by writing, telephone, or other form of verbal communication, fax, telex, e-mail or any other electronic mode of communication and shall briefly state the nature of the dispute.
(3) A submission to mediation through telephone, or any other verbal mode of communication shall, unless the parties agree otherwise, be confirmed in writing and shall state the names, addresses including e-mail addresses and telephone numbers of the parties and in brief the nature of the dispute.
(4) Mediation proceedings commence when the other party accepts the invitation for mediation.
(5) An acceptance of an invitation for mediation may be by a letter, telephone, or other form of verbal communication, fax, telex, or e-mail or other mode of electronic communication.
(6) An acceptance by telephone or any other verbal means shall be confirmed in writing but a failure to confirm an acceptance in writing shall not invalidate the proceedings.
But this is not the only way to mediation. A case in court can be referred to mediation by the Judge, with the consent of the disputing parties. Also, parties in court can agree and apply for the case to be referred to mediation.
Section 64 (1) states that “A court before which an action is pending may at any stage in the proceedings, if it is of the view that mediation will facilitate the resolution of the matter or a part of the matter in dispute, refer the matter, or that part of the matter, to mediation.
(2) A party to an action before a court may, with the agreement of the other party and at any time before final judgment is given, apply to the court on notice to have the whole action or part of the action referred to mediation.
When a case in court is referred to mediation, the case would automatically me put on hold (stay of proceedings) for the mediation process to proceed.
If the case is successfully settled at mediation, the settlement agreement shall be adopted by the court as its judgement on the case.
But where there is no mediation settlement, the court shall resume with the proceedings from the point where it referred the case to mediation.
Edmund Mingle (Editor, ADR Daily. firstname.lastname@example.org)