The use of Appropriate Dispute Resolution (ADR) mechanisms in Ghana continues to rise, but a few misconceptions are hindering its adoption by lawyers and disputants.
A survey conducted by ADR Daily among lawyers in Accra reveals some of the factors why a significant proportion of lawyers in Ghana are reluctant or fail to opt for mediation.
The survey, conducted among young and senior lawyers, revealed four top reasons they are not opting for mediation.
Unknown Terrain
Most of the respondents consider voluntary mediation a new terrain which they would rather not venture for fear of their inability to handle their case at mediation.
There is a solution to this fear which is the cause of the skepticism legal practitioners have about mediation and ADR in general.
The solution is for lawyers to seek education and professional training in ADR which they can use to boost their legal career.
Mediation signals weakness
Other respondents, who are aware of mediation, say that being the first to propose mediation is likely to be perceived by the other party, as a weakness of their case. Such a proposal, they say gives their opposing parties a psychological edge in the case. They would rather wait for a Judge to suggest mediation to them, or refer their case to mediation.
This perception is highly inaccurate since opting for mediation rather demonstrates wisdom and strength. According to experienced mediators and counsel, opting for ADR shows civility, and lawyers who aid their clients avoid litigation and settle disputes in a speedy, confidential and inexpensive manner, have become more preferred in developed countries.
In other jurisdictions like the United Kingdom, the “See you in court” mantra has largely given way to a “meet you at mediation” mentality.
In other countries, mediation has become so entrenched in the dispute resolution fabric that disputants and their lawyers now expect it to be offered and don’t regard it as the approach of the likely loser.
Courtroom showdown
Some of the lawyers would not consider mediation because of their high confidence of winning the case in court. “If I know my client has a good case and am confident of winning, why should I go for mediation?” one respondent asked.
Whether one has a strong case or not, the parties do not have control of the case, and therefore, cannot be too sure of the outcome after a long, costly and acrimonious trial that ends up in further damaging their relationship.
Unlike the litigation which uses a rights approach, Mediation uses an interest-based approach which results in a win-win outcome for the two parties. In mediation, the parties have control of the case and are guided by an impartial mediator to fashion out the resolution by themselves based on their understanding of each other’s interests.
Financial Interests
The lawyers would rather want to go for litigation to retain their financial interests in cases. According to the respondents, going to mediation means that their clients would not be paying the expected legal fees.
“Justifying the fees we charge our clients would become difficult, because I would not have made the expected arguments to determine the outcome of the case,” one of the lawyers stated.
The payment of fees is based on an understanding between the lawyer and their client prior to mediation. Studies show that happier clients, who are helped to secure speedy settlement without wasting time and money in litigation, tend to pay more for such services.
By: Nii Adotey/adrdaily.com
