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Opinions of Tuesday, 2 March 2010

Columnist: Adjei-Brenyah, Dennis

Some Reflections on Ghana's Search for Alternative Dispute Resolution

Some Reflections on Ghana's Search for Alternative Dispute Resolution (ADR)

Dennis Adjei-Brenyah Esq, New York

In recent times the leadership of Ghana's Judiciary are making decidedly determined efforts to initiate and cultivate the culture of Alternative Dispute Resolution in the mix of the court litigated and court burdened system. The gain, if it all came to meaningful fruition, is a less burdened court system and , hopefully, by extension, a more efficient court system. That, by itself, is a worthy goal. In the larger context of our democratic experimentation, an efficient and reliable judiciary is in my view, the ultimate gain.

I am not entirely certain as to how our judicial leadership views their charge in the structuring and promotion of this concept (ADR). Every time I come across a leadership pronouncement relating to an attempt to get the populace to accept the idea, they have explicitly referred to the concept as some mechanism to be used and promoted in respect of perceived or defined “petty cases”. Without identifying names of pretty high personage in the judiciary who have pointedly referred to “petty cases” as the kind of cases that people should use ADR for. It is safe to say that the positive development efforts in the crafting of the modalities of ADR would be internally poisoned and a grave disservice would be done to the growth and development of the concept. If, indeed, the knowledgeable persons charged with its development continue to suggest- rather explicitly, that the concept of ADR is operationally valid only in “petty” or “small” cases we have a major distortion.

The Meaning of Alternative Dispute Resolution:

And so, back to the fundamentals. What exactly is Alternative Dispute Resolution? It would seem that the terminology defines itself. But there is an inherent caution. ADR methodology seeks to resolve disputes without direct recourse to the central institution for dispute resolution, that is the court system: To provide a frame work (that may be as institutional) as the court system for the resolution of disputes – and do so efficaciously and cheaper than the court system. Thus, while the term 'alternative' gives us some understanding of the concept, it disables us from truly visualizing the true purpose: It is an 'alternative' to the “normal” legal process only in the sense that in the initiation and prosecution of legal action, for the redress of perceived wrongs, the court must not the central mechanism but, perhaps far more significantly, it is complimentary to the structured functions of the court system. And in-fact, for the ADR methodology to be meaningful and productive, the ultimate enforcement power of the court must be behind it. Two of the best known ADR frameworks are Mediation and Arbitration.

Clearly, there are several permutations of the Mediation process and Arbitration is, perhaps, even more complex in terms of their uses as ADR mechanisms.

From Whence They Came: Mediation and Arbitration Are Known Concepts in our Juridical Tradition.

Must Ghanians know that “mediation” as a portal for dispute resolution is our creation. And so is Arbitration. When I was growing up I saw countless cases being handled and settled in my house. You see, the Chief of my town, Hiawu Besease (Atwima Nwabiaqya, Ashanti.) Nana Kwame Bonsu (May he rest in peace) was my uncle. When he “sat down,” it was a big deal in my town. I sat through some of these cases. I observed him. I did not understand much about what was going on, but I knew people were settling their cases or “fights” in my house! And the “fines” and awards sometimes translated into sheep being slaughtered for some pretty good eats in the evening! From war-like land disputes through to family and divorce issues, including adultery related case claims to 'a wabu me kwasea' complaints of cheating of one kind or another, my uncle, Nana Kwame Bonsu, Hiawuhene and his elders and others associated with him in the hearing of cases, conducted tons of cases- most with little or no adjournments! And, from what I can remember, it was mediation in one form or another or usually a combination of arbitral and mediation processes.

Sometime last year when I visited home, my sister Nana Amma Agyeman who is currently the Queen mother of (Hiawu Besease), was conducting hearings and settling cases exactly like our uncle, Nana Kwame Bonsu used to do. She was hearing and settling cases- this time in our family house at Kumasi, [Hiawanfie mu]. In fact, just for the thrill of it and to compare with aspects of my bare knuckle litigation practice in New York, and to relive my kiddie days when the Nana Kwame Bonsu was alive, I twice sat in at the Queen mother hearing and settling cases. (Again) the initial 'filing' of complaint begins when the complaining party “plaintiff” swears some kind of oath asserting a state of affairs and the opposing party “defendant” challenges the oath [obi asaman obi] The word 'asaman' is manifestly a perversion of the English 'summons'- the traditional time tested way of initiating a legal action to attempt to resolve a dispute. ( I have recently learned that as a result of some ongoing unresolved internal family dispute my sister Nana Amma Agyeman, has been estopped from conducting and settling cases in our house at Hiawa; Could someone please initiate some mediation proceedings to resolve this matter please! )

I went into the personal reflections to illustrate that we do have a rich history of where we come from. We do know for certain that these ideas of Alternative Dispute Resolution are not new to our traditional Judicial system. They are central, not alternative to our our own juridical paradigm. It would seem therefore that the full recognition and acceptance of some of the finer aspects of our own home grown principles of dispute resolution, should make attempts to expand the reach of those concepts to their newer modern court structures an easy process. In that endeavor, let us be advised that the traditional approaches of mediation and arbitration were not, designed for “petty cases”. Far from that. However, it is fair to concede that if a case was deemed not particularly grievous then, perhaps, even the merits of that case might not be heard and parties were encouraged, not to dwell on their self-hurt and bruised feelings, but to “shake hands” and move on- a classic understated mediation approach. I saw it done!

As I observed it operate, arbitration and the arbitral procedure applied when the dispute was truly adversarial and issues were defined and contested. Evidence and testimony were believed to be “truthful” an d accepted because the parties were sworn – invoking one more or more of the deadly gods of the realm [or perhaps the Almighty God Himself] Such testimony was evaluated by a jury -sometimes including the presiding chief . I have seen the winning party get powder thrown on him or her- victory. But, beyond that, the parties do come to a resolution; a defined settlement of the problem. That was and is an effective “judicial” system. And the beauty of it all was that even the awards and the fines after all said and done- were also subject to negotiation, bargaining and eventual settlement. Everybody went away “happy”: Problem solved. Peace becomes the community. Law achieves its principle purpose.

The Evolution, Growth, and Expansion of Alternative Dispute Resolution Facilities in the U.S

By some fortuitous play of circumstances, I studied and practiced law in Ghana. I taught law in Nigeria. I studied law in the United States . I practice law in new York, at the heart of what it is believed to be the most complex legal market in the world. In the last twenty years or so, ADR has become a major part of the legal and business framework in the United States. On several occasions, I have personally resorted to either mediation to help a terminated employee get some benefits such as insurance or a mother resolve a particularity bitter child custody issue with an errant father, or resorted to arbitration to advance the position of the town I represent against its employees and their Union- a system mandated and directed by the Collective Bargaining Agreement (CBA).

Now , almost all civil matters may be subject to the growth and expansion of Mediation and Arbitration as the preferred methodology in dispute management. It is generally agreed among the practicing Bar that what drives the growth and expansion of the ADR procedures is: First, the expensive nature of litigation in the United States and; second, the crippling burdensome congestion in court dockets. There is no doubt that the same reasons apply as to the situation at home. If properly developed ADR will blossom in Ghana: Yes litigation is expensive and the dockets are congested. There are no real options!

The development of ADR approaches have affected several facets of the litigation bar: From complex insurance related issues to Commercial/Business Transactions, Maritime and Admiralty Entertainment/Sports Law, Family/(Child Custody; Employments/Labor Relations; Intellectual Property, Professional Liability- the whole gamut even issues of Arbitration and arbitrability- nothing petty here!

In order to deal with these multiple range of issues, (here have developed three major ADR institutions in the U.S: AAA, the American Arbitration Association;. JAMS, the JAMS New York Resolution Center and NAM, National Arbitration and Mediation. These three constitute the giants of the industry. ( you see, I use the word 'industry' because that is indeed what it has become.) Other not so familiar players in this arena are International Institute of Conflict Prevention and Resolution, (Cybersettle) and ICC International court of Arbitration and Resolve Systems LLC. All these companies are based in New York and they advertise their personnel as wares in the market place. I have personally used AAA several times. I have used JAMS. I don't readily recall using NAM. In most of my use of these organizations it was probably in employment law or some Wall Street termination and the use of the services of one of these players was probably indicated or mandated in the original (hiring/employment contract

AAA, JAMS and NAM generally hire retired judges lawyers with years of experience in handling the traditional litigation and related issues; retrain them for the needs of Arbitration and Mediation. They are paid according to a preset “daily” rate agreed to by the parties. The adverse parties share equally in paying the “hearing officer”; time spent on the hearing and writing of the decision and arbitral award. Some are “specialists” in their chosen area of expertise. For example, maritime/admiralty matters and related issues; I have done several cases before arbitral specialists on Employment (Discrimination) issues, and on Union disputes etc. all CBA's mandate arbitration and procedure to follow before the actual arbitration hearing is triggered. And, though, it is supposed to be an “alternative” approach to litigation the “normal” courts may be the ultimate enforcer of the arbitration award. That process of enforcing an arbitration may itself become a subject of severe, gruesome litigation! For example, if the award is deemed to excessive or beyond the mandate of the arbitrator, or the decision is challenged as violating some rule or the hearing officer/arbitrator is charged in some significant way. Otherwise, the award is enforceable, period.

Thus, where a specific practice normally accepted in a specific industry calls for mediation and or arbitration, you will not be permitted to prosecute your claim in the court. The arbitration clause will be available to you.

Court-Connected (or Court-Run) ADR Programs

In New York, there is established in the Court system the office of ADR and court improvement programs. It has the overall function of seeing and promoting ADR options for cases already filed in the court system. All the civil court system ares utilizing the ADR system to improve the delivery of the judicial service. It is most prevalent in the family court where mediation is used for a variety of matters custody and child care issues. It is also widely encouraged in the Commercial Division. Significantly, in all these issues, the issues are very serious – emotionally and financially. And yet, it is the preferred option to resolve issues. I understand that the Judicial Service of Ghana calls its program, court connected ADR. It is not very different from New York's Court-Run ADR programs.

Encouragement of Lawyer-Initiated Resolution of Disputes.

Subject to preserving your right to sue and prosecute a case you deem meritorious, it is always, the most effective and satisfying if, the lawyer initiates contact with opposing counsel on the perceived problem and, without any input from the court or anybody, the issue is fairly and quickly resolved between the parties ; let's say between the employer and employee. I call that sub-mediation in that the parties accept and recognize a potentially long drawn out litigation with huge expense and resolve that issue with minimum cost and some measure of satisfaction to all parties. That is the purposeful thrust of ADR. Even when a case is filed, before discovery is initiated, or in the course of discovery,especially in Federal Practice the Magistrate-Judges all the Federal Districts make it a point to encourage the lawyers to “talk” and negotiate and settle. Most federal judges are happiest when a case gets resolved because the lawyers (and the litigants) joined up in a happy enterprise to resolve the issues before (full apparatusof the court process takes full gear. That too is a court initiated, court-inspired dispute resolution that helps all.

Corruption and Failure of Professional Ethics and Integrity Undermine Development of ADR

The thrust of these reflections is not really devoted to the subject of corruption in the Judiciary or any of its component parts. At the proper time, I will probably have to “reflect” on that weighty issue as well. However, I am not able to escape that a multi-headed dragon that must be slain, if we are to make any meaningful progress in the development of Alternative Dispute Resolution paradigm of our own creation.

Several months ago, when I was in Ghana, I visited the Supreme Court building to sit and observe and learn; to explore some matter. I stepped out of the new swanky new building to walk half a block to my old law school; Ghana Law School. It was exam time and the subject exams where published on the notice board. I saw the traditional courses I took when I was there;(I would not tell you when that was!) The mundane Civil Procedure, Criminal Procedure, Drafting, etc. I specifically looked for “Ethics and Legal Responsibility” or something representing that core theme significant to graduating lawyers-- getting ready for practice. Nothing. There was no course indicated on the notice board reflecting any training in the Ethics of law and law practice. I would be very happy to be mistaken in my observations several months ago at the GLS. I hope that I am wrong and in fact, such a course or several courses are rigorously taught to incoming lawyers. And whilst we are on the subjects that prepares students for law practice, I suggest we include Alternative Dispute Resolution as another core subject.

These lawyers are going to be the judges and if they have no foundation in Ethics and Legal responsibility in their practice, how can anyone expect such responsibility when they wear the white crown of judgeship.

A couple of years ago I received a call from Ghana for some advice. The recipient of my advice listened to me and suddenly said: “Kwadwo ei, eha dee wasem ede a yetc; enye de so a yeto” Let me attempt a translation: Here, if you have a sweet case (good case) we buy it, if you have a bad case we buy it.” I was stunned. I could not meaningfully respond especially as I was seriously planning to go back home to do what I have been trained to do. My commentator was sharing the pervasive wisdom in the land with me. This is how the people perceive the process “ye to.” I actually get sad just thinking about that.

Happily I know the leadership of the Judiciary are doing whatever it takes to stop the tide of muddied and unhealthy judicial waters. That will be needed to give meaning to the search for ADR.

And our Judiciary will be counted among the finest Judiciary in all the World.