Alternative Dispute

Resolution
Overview
 Overview

• The concept of ADR date back to the beginning of English Legal history.
• This is usually thought to have began in the A.D 601 because it is that year that
documentation of Anglo-Saxon legal practices actually started.
• Even after the Normans conquers of England, various disputes resolutions
mechanisms were adopted including modern day adjudication, arbitration,
mediation and negotiation.
• The concept of alternative settlement of dispute has always been encouraged under
Ghana legal practice.
 Overview

• The Courts Act, 1993 (Act 459) under section 72 and 73 encourages out of
court settlement in both criminal and civil matters
• Subsequently Alternative Dispute Resolution Act was enacted giving details
as to the various ADR mechanisms and how they operates.
 Definition

• The definition of ADR is not without difficulty.

• However some of the suggested definitions or descriptions of ADR are as outlined
below;
Bryan A Garner defines ADR as a procedure for settling a dispute by means other
than litigation.
Sir Dennis Adjei and Justice Barbara Frances describes ADR as a wide range of
dispute resolution processes and techniques that act as means for disagreeing
parties to come to an agreement outside litigation.
 Definition

• Section 135 of the ADR Act, 2010 defines ADR as means the collective
descrip­tion of methods of resolving disputes otherwise than through
the normal trial process.
• In simple terms, ADR is an alternative means of settling disputes other
than through the courts
 Classification of ADR processes

• All ADR processes are broadly categorised into two;

Adjudicative processes; these are ADR processes which involve a final and
binding determination of actual and legal issues of the dispute by the ADR
neutral.
Non-adjudicative processe; this is also known as consensual processes which do
not involve any final and binding determination of factual or legal issues of the
dispute by the ADR neutral. This involves an exploration of mutually acceptable
solution with the cooperation of the parties.
 Advantages of ADR processes

• It is expeditious and effective than normal litigation

• It is more informal and less adversarial
• It offers parties the opportunity to avoid the courtroom itself
• It is ensures privacy and confidentiality
• It reduces time and cost.
• ADR provides the opportunity for the use of expert in making decisions
• It promotes continuity of relationships between parties
 Advantages…

• There is flexible procedure under the ADR processes

• It allows opinions and options to the parties
 Disadvantages…

• Some ADR processes are more expensive than the normal court litigation
• Not every ADR initiated process will always lead to a settlement.
• ADR cases are unable to form the basis for Judicial precedents
• ADR processes are unable to make interim orders such as interlocutory
injunctions etc.
 Forms of ADR

• Arbitration (Adjudicative ADR)

• Binding Expert determination (Adjudicative ADR)
• Mediation (Non-Adjudicative ADR)
• Negotiation (Non-adjudicative ADR)
• Conciliation (Non-adjudicative ADR)
 Matters outside the scope of ADR processes

• The following matters are not amenable to ADR;

Matters of national or pubic interest
Issues regarding the environment
The enforcement and interpretation of the constitution
Any other matter that by law cannot be settled by ADR;
- Crime of aggravated nature (e.g, murder, robbery, manslaughter etc)
 Other categories of ADR

• Court-connected ADR; this is where the rules of courts defers the dispute to an ADR
process. O. 58 of C.I 47 (commercial matters), C.I 133 court to enquire if matters are
amenable to settlement. Also under the ADR Act court may refer certain matters for
settlement.
• Customary ADR; The concept has been part of the dispute settlement process even
before the arrival of the Europeans. Traditional leaders within the community were
engaged in settling disputes by their customs and practices. Even in present day
Ghana, traditional Chiefs, elders, heads of families and clans in the community.
 Arbitration-History

• Arbitration is the oldest ADR process.

• As early as the 13 Century, arbitration was used by English merchants to resolve their disputes.
th

• These disputes were resolved in accordance with their trade customs and usages known as the
law of merchants.
• At the time, disputants will appoint one of their trade counterparts who is well verse in the
trade usages to resolve their disputes.
• Commercial arbitration also became common in the USA. Labour arbitration for instance date
back to the 1940
 Arbitration-the concept

• According to Aristotle, it is equitable to be patient under wrong (not to

retaliate); “to be willing that a difference shall be settled by discussion rather
than by force; to agree to arbitration rather than to go to court-for the
umpire in an arbitration looks to equity, whereas the juryman sees only the
law. Indeed, arbitration was devised to the end that equity might have full
sway”
• Williams O. Douglas J in the case of Bernhardt v. Polygraphic [1956] 350 US,
198 posited as follows;
 …concept of arbitration

• “The nature of the tribunal where suits are tried is an important part of the parcel of rights
behind a cause of action. The change from a court of law to an arbitration panel may make a
radical difference in ultimate result”
• Ronald Bernstein describe arbitration process as follows;
“In an arbitration your claim, instead of being heard publicly in court and decided by a judge, is
heard privately by one, two or three persons (arbitrators) chosen by agreement between you
and the person against whom you are claiming( the respondent); or, if you cannot agree upon
the choice, chosen by someone whom you have agreed upon to choose; or if all else fails,
chosen by the court”
 Definition

• Halsbury describe arbitration as the reference of a dispute or difference between

not less than two persons for determination after hearing both sides in a judicial
manner, by a person or persons other than a court of competent jurisdiction.
• The Black’s law Dictionary also defines arbitration as “an arrangement for taking
and abiding by the judgment of selected persons in some disputed matter, instead of
carrying to established tribunals of justice, and is intended to avoid formalities, the
delay, the expense and the vexation of ordinary litigation.”
 …Definition

• The ADR Act under section 135 defines arbitration as “the voluntary
submission of a dispute to one or more impartial persons for a final and binding
determination”
 Types of Arbitrations

• Domestic Arbitration: This refers to arbitration which takes place in a specific country wherein
the parties are citizens of the country and disputes are decided in accordance with the domestic
laws of the country.
• Domestic Arbitration is in two forms;
Statutory arbitration or formal arbitration and
Customary arbitration
• International arbitration; this is a type of arbitration that takes place within a country or outside
the country containing ingredients of foreign origin in relation to the parties or the subject
matter of the dispute.
 Types…

• Treatybased- arbitration: where two countries have signed a prior

agreement to submit to arbitration in the event of dispute.
 Advantages of arbitration…

• It is faster than litigation

• Expert knowledge is deployed in arbitration
• Parties choose the arbitrators and determine the modalities for the arbitration
• It ensures privacy and confidentiality
• The process is less formal as compare to normal litigation
• Arbitration is less expensive and flexible
• Parties are at liberty to chose the language for the arbitration
 Disadvantages…

• Not all disputes can be arbitrated upon

• Parties may stultify the arbitration process by not co-operating
• There is no right to appeal
• Difficulty in enforcing interim orders
• Some arbitration procedure are more complex and expensive than the
normal court process.
 Statutory or formal arbitration

• This form of arbitration may be a Contract based arbitration or an ad hoc arbitration

• Under the ADR Act; a dispute may be submitted for arbitration in the following ways;
A prior agreement to submit to arbitration (s. 2)
Reference by the court with the written consent of parties
• Aside what is provided under the ADR Act, the parties may after the dispute arose
agree to submit same to arbitration.
• This is by way of the Ad Hoc arbitration process.
 Appointment of arbitrator(s)

• The arbitrator(s) may be appointed by;

The parties
A third party or institution given the power by the parties
 Qualification

• A person of any nationality can be appointed an arbitrator.

• The parties may agree on the qualification of the arbitrator
• A person without the experience or qualification in the subject matter may
be appointed if the parties so agreed
 Matters of consideration in appointing an
arbitrator..

• The parties must find out if the arbitrator has any interest in the subject
matter.
• Whether the proposed arbitrator has any relationship with a party or his
counsel
• The nationalities of the parties
• Expertise of the arbitrator
 Jurisdiction of an arbitral panel

• When the jurisdiction of the panel is challenged, it has the power to rule on same.
• The issue of jurisdiction may be in respect of;
the existence, scope or validity of the arbitration agreement
 the existence or validity of the agreement to which the arbi­tration
agreement relates
whether the matters submitted to arbitration are in accordance with the
arbitration agreement
 Arbitral management process

• Unless the parties otherwise decide, an arbitrator shall, within fourteen days of
being appointed and upon giving seven days written notice to the parties, conduct
an arbitration management conference with the parties or their representatives in
person or through electronic or telecommunication media to determine;
the issue to be resolved by arbitration;
the date, time, place and estimated duration of the hearing;
the need for discovery, production of documents or the issue of interrogatories
and to establish how this should be done;
 Arbitral process

the law, rules of evidence and the burden of proof that is or are to apply to the
proceedings;
the exchange of declaration regarding facts, exhibits, wit­nesses and related issues;
whether there is the need to resolve issues of liability and damages separately;
whether the summary of evidence of parties should be oral or in writing;
the form of the award;
costs and arbitrator's fees; and
any other issue relating to the arbitration.
 Duties of the arbitrator(s)

• The arbitrator in the discharge of his work has the following duties;
He must be fair and impartial to the parties
Give each party the opportunity to present his or her case
He shall avoid unnecessary delay and expenses
He shall adopt measures that will expedite resolution of the dispute
 The arbitration hearing

• The arbitrator is required to give parties notice of the date of the hearing
• Before the date for the hearing a party is required to give particulars of the witnesses he
intends calling, the substance of their statements or testimony
• At the hearing this is what takes place;
recording of the date, time and place of hearing;
recording the presence of the arbitrator, the parties and their representatives, if any; and
receiving into the record the claim, defence, counterclaim and the answer as applicable.
 …hearing

The arbitrator may proceed by asking the parties to make opening

statements to clarify the issues for arbitration
This is followed by evidence from both parties with the Plaintiff or claimant
calling his witnesses first followed by the Respondent or Defendant.
The parties make closing statements and the date is given for the award or
decision.
 Arbitral Award

• The arbitrator shall determined the matter in accordance with the law
chosen by the parties
• The award must be in writing, signed by the arbitrator, state the date and
place it was made and state the reason for the award unless the parties
agree otherwise.
 Effect of the Award

• An arbitration award is final and binding on the parties and any person claiming through
them.
• No right of appeal is available
• A party may however apply to set aside the award on the following grounds;
A party to the arbitration was under some disability or incapacity
The law applicable to the arbitration agreement is not valid
The applicant was not given notice of the arbitration and for that matter could not present
his case
 Effect of award…

The award deals with a dispute not within the scope of the arbitration
agreement.
There is failure to conform with the agreed procedure by the parties
The arbitrator has interest in the subject matter which he failed to disclose.
 Customary Arbitration

• Customary arbitration is the older of the two forms of arbitration

• As far back in 1884, the court in the case of Ayafie v. Banyea held that parties
to a customary arbitration were bound by the awards
• Traditionally chiefs were into arbitration
• This involvement of chiefs in customary practice is recognised under the
Chieftaincy Act, 2008 (Act 759)
• Section 30 of Act 759 provides as follows;
 …customary

“The power of a chief to act as an arbitrator in customary arbitration in any

dispute where the parties consent to the arbitration is guaranteed.”
 Definition

• The ADR Act defines a customary arbitration as the voluntary submission of a

dispute whether or not relating to a written agreement for a binding
determination.
• Sir Dennis et al describe customary arbitration as a process where the parties to a
dispute whether written or unwritten voluntarily submit themselves to an
arbitrator to informally go into the merits of the case with the prior agreement
by the parties to accept the award.
Essentials of Customary arbitration before Act
798

• Before the ADR Act, customary rules governing customary arbitration was purely
judge made rules.
• The locus classicus (the case that first established the principle) as far as the
essentials of customary arbitration is the case of Budu II v. Caesar & Others
• In that case the following were outlined as the essentials of customary arbitration;
Voluntary submission of the dispute to arbitration
A prior agreement by the parties to accept the award of the arbitration.
 …Essentials

The award must be arrived at after hearing both parties

The practice and procedure for the time being followed in the Native Court or Tribunal of the
area must be followed nearly as possible
Publication of the award.
• It is deduced that the above essentials can be subsumed into three essentials;
Voluntary submission to arbitration
A prior agreement to be bound by the award
The must be a publication of the award
 Requirements under Act 798

• Under Act 798, customary arbitration may arise in one of the following ways;
Reference by court
By submission of the dispute by a party
- This is done by one of the parties reporting the dispute to a qualified person to resolve same
- The qualified person invites the other party to the dispute and the party who reported same to
pay a fee or token
- The payment of the fee has the following implication;
Consent to customary arbitration
 …essentials

Appointment of the arbitrator.

- When a party is invited and he refuses to appear, it will amount to rejection
to submit to arbitration
- If within 21 days of the invitation nothing is heard from him, he will be
presumed to have rejected the invitation
- A person cannot be coerced or forced by any person, institution or authority
to submit to customary arbitration.
 Principle of non-withdrawal

• A party cannot withdraw from customary arbitration after submitting and

consenting to same. See section 105
 Matters not amenable to customary
arbitration

• submit a criminal matter for customary arbitration or

• serve as an arbitrator in a' criminal matter.
• A person who violates this rule commits an offence
 Rules of customary arbitration

• An arbitrator shall apply the rules of natural justice and fairness

• The arbitrator is not oblige to apply any legal procedure of arbitration
• The parties may however agree for the arbitration to be conducted under
the auspices of the ADR centre and for the rules of the centre to be adopted
for the purpose of arbitration
 Setting aside award of customary arbitration

• A party may apply to any of the following courts for the purpose of setting aside the award of customary
arbitration;
The District Court
Circuit Court or
The High Court
• The grounds for setting aside customary arbitration are;
Breach of the rules of natural justice
If a miscarriage of justice occurred
If the award is is in contradiction with the known customs of the area concerned.
 Setting aside..

• The application must be made within three months after the award.
 The End

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