To Sue or Not: Exploring Alternatives to Litigation in Ghana

• Etornam Caleb Afutu

Over 2000 years ago, Jesus Christ, in the just-cited scripture, explained to His disciples that they were going to be offended by others, one way or the other. The world hasn’t changed much since then. It is not uncommon to learn about disputes between individuals (whether natural or artificial) on matters ranging from domestic issues to commercial ones. The means by which these disputes or misunderstandings are settled are key to, amongst others, maintaining relationships and/or preventing anarchy.

Litigation, defined by Black’s Law Dictionary (Bryan Garner, 9th Edition) as the process of carrying on a lawsuit, is a popular method for resolving disputes in Ghana introduced by the British in the 19th century to the erstwhile Gold Coast. This article aims to shed light on dispute resolution avenues besides litigation and why it may be in the interests of parties to pursue such avenues.

Alternative Dispute Resolution (ADR)

Alternative Dispute Resolution in Ghana is primarily governed by the Alternative Dispute Resolution Act, 2010 (Act 798). Section 135 of Act 798 (“The Act”) defines “Alternative Dispute Resolution” as “the collective description of methods of resolving disputes otherwise than through the normal trial process”. The Act recognizes mechanisms such as arbitration, conciliation, mediation and customary arbitration. However, other ADR methods exist such as negotiation, plea bargaining, victim-offender mediation (restorative justice), early neutral evaluation, court-connected ADR, judicial settlement conference, collaborative problem solving, partnering, mini-trials and mixed processes such as Med-Rec (Mediation-Recommendation) and Med-Arb (Mediation-Arbitration). Some of these ADR methods are defined below:

1. Arbitration: This is defined by Act 798 as the “voluntary submission of a dispute to one or more impartial persons for a final and binding determination”. The parties consent to submit disputes to the arbitrator and consent to be bound by the arbitral award (decision). Arbitration can also be done under customary law (customary arbitration).
2. Mediation: According to Act 798, this is a non-binding process in which the parties discuss their dispute with an impartial person who assists them to reach a resolution. It is important to note that the mediator only assists the parties in reaching an amicable solution and does not make the decision for the parties.
3. Early neutral evaluation: Here, the parties to a dispute submit same to a neutral third party who assesses the rights of the parties and the outcomes were the matter to proceed to court.
4. Plea bargaining: Here, an accused person admits a crime (thereby preventing a full trial) in exchange for a lesser sentence or the dismissal of a charge.
5. Victim-offender mediation: Essentially, this seeks reconciliation and accountability between the victim of a crime and an offender.

Why Alternative Dispute Resolution?

1. Privacy is ensured. This is opposed to litigation where members of the public are allowed to attend court. By choosing ADR, parties protect their information.
2. ADR methods are not aggressive and confrontational compared to litigation. Hence, relationships are preserved.
3. ADR tends to be cheaper than litigation. Furthermore, public money is saved when matters do not go to full trial and the courts are decongested.
4. With ADR, the parties choose the laws for the settlement of disputes and as such are able to avoid the application of inflexible laws akin to litigation as well as control the process. Consequently, parties readily comply with the ADR resolution.
5. ADR allows parties to express their emotions as well as ensure that their specific needs are met unlike with litigation where public policy and precedence are considered.

Drawbacks of Alternative Dispute Resolution

1. Not all matters are amenable to ADR. Per section 1 of Act 798, matters of national or public interest, concerning the environment, the enforcement and interpretation of the Constitution and other disputes not amenable to ADR cannot be settled by ADR.
2. There may be time-wasting.
3. Absence of precedence to deal with novel situations.
4. Financial savings may be minimal

Conclusion

Admittedly, ADR is not flawless. On the other hand, it provides benefits unavailable under litigation which should not be overlooked and can, in certain circumstances, better serve the needs of justice compared to litigation.