JTI/ GHANA NEWS LINK SEMINAR FOR JOURNALIST

JTI/ GHANA NEWS LINK SEMINAR FOR JOURNALIST INTRODUCTION TO ADR/ WHY ADR IN THE COURT? BY JUSTICE MARFUL-SAU, JUSTICE OF APPEAL.

SOCIETY AND CONFLICTS • Conflict in diverse forms have become part of human life since creation. Eg dispute between Cain and Abel being the earliest conflict recorded. • Conflict is unavoidable in any society hence the need to device methods of managing them anytime it shows up between nations, families, individuals, social groups and business partners.

DISPUTE RESOLUTION PROCESS • FOUR TYPES:- • Power Based Approaches:- Self- Help • Right Based Judicial Processes:- Arbitration and Litigation/Adjudication, Rent a Judge(Private Tribunal) • Interest Based Processes:- Mediation, Negotiations, Early Neutral Evaluation • Mixed Processes:- Med-Arb, Mini Trial

CONFLICT CONTD • As a nation the method of dispute resolution bequeathed to us by the colonial masters was litigation through the courts. • Litigation in Ghana is adversarial in nature, highly aggressive, confrontational and very divisive. • The trial of disputes in the court rooms are characterized by tense atmosphere which increasingly becomes competitive, hostile and acrimonious. In some cases destroying family relations from one generation to the other.

CONFLICT CONTD. • Before the introduction of litigation in the courts however our chiefs, heads of family and communal leaders settled disputes peacefully in their palaces using traditional method of dispute resolution characterized by the application of unwritten rules founded on the customs and traditions of the community. • With modernization and the increased complexities in human and corporate behaviour the traditional way of settling disputes faded away especially in the cities. Litigation thus became the most used method of dispute resolution.

OVERVIEW OF LITIGATION AS DISPUTE RESOLUTION MECHANISM • Litigation has played significant role in dispute resolution in Ghana. • Litigation is preferred to armed conflict and the use of violence to settle scores. • Over the years research has shown that litigation is incapable of addressing societal needs in managing conflicts for various reasons.

LITIGATION CONTD. • 1. Litigation is characterised by interminable delays.For example Aduv.Kyeremeh 1987-88 GLR 137.This case was in court for 26years. • 2.Court hearings are public with no privacy except under certain circumstances. • 3.Court room language can be mystifying such that parties who own the dispute don’t understand what happens between the court and lawyers.

LITIGATION CONTD. • 4.In litigation Judges and Magistrates are bound to apply strict rules on civil procedure and evidence. These rules are time bound and inflexible. • 5.Court rules most times don’t allow evidence on emotional matters like injured feelings, resentments, anger or shame unless the nature of case calls for its inclusion.

LITIGATION CONTD. • 6. Litigation has become very costly in both financial and emotional terms. The high cost of litigation remains a threat to access to justice since the very poor may not afford. • Because litigation has been the most used mechanism for dispute resolution the courts are over burdened with cases which keeps increasing leading to delays and low confidence level in the Judiciary.

COURT CONNECTED ADR • In view of these set backs in litigation a new method has emerged to supplement the work of the courts in ensuring speedy and efficient management of disputes. This method is ADR. • ADR has now been incorporated in the justice delivery system and it has proved to be faster, cheaper, efficient and friendlier in its application and use. ADR is a new product which is been marketed by legal communities all over the world.

ADVANTAGES OF COURT CONNECTED ADR OVER LITIGATION • 1.It helps to reduce cases in court. By decongesting the court it helps judges and magistrates to devote time for research and produced well reasoned judgmentsthus promoting judicial confidence and professionalism. • 2.ADR provides a healthier method for resolving disputes. Conflicts within ongoing relationship such as families, landlord-tenant, business partners calls for methods that seek to maintain and preserve the relationship.

ADVANTAGES OF ADR CONTD. 3. ADR in the court empowers the individual parties. In litigation the parties are hardly in control of the process because of the structured rules. Apart from giving evidence the parties are not heard. ADR gives to the parties the satisfaction of having been heard and contributed to a mutually beneficial outcome.

ADVANTAGES CONTD. • 4.ADR also encourages parties to voluntary comply with agreed terms of settlements. It is natural that people who design solutions to their own conflicts are more satisfied with the outcome than people who have the solution thrust on them.

LIMITATIONS OF ADR • It takes away the disputants right of appeal or review. • ADR does not give definitive decisions on a case, hence no basis for precedents. • Decisions at ADR are not predictable. • Parties may use the ADR process to delay the resolution of a case.

CASES APPROPRIATE FOR ADR • Family and domestic disputes ,examples- maintenance, custody issues, divorce, property settlement and distribution. • Relationship cases eg marriage, parent/child. • Commercial cases. • Labour disputes. • Landlord/Tenant disputes. • Land and boundary disputes

CASES INAPPROPRIATE FOR ADR • Constitutional issues. • Cases involving public policy and interest. • Human rights cases • Cases expected to guide or serve as a precedent for the development of the law or government policies. • Criminal offences except minor or non aggravated offences.

JTI/ GHANA NEWS LINK SEMINAR FOR JOURNALIST