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Opinions of Sunday, 25 September 2005

Columnist: Bannerman, Nii Lantey Okunka

Unclogging The Courts: A Look At Mediation As A Viable Option In Ghana.

Have you ever heard of mediation as a conflict resolution tool? Are you ready to explore its use in Ghana? Well, before we do that, let me tell you of a situation that you are probably familiar with but will help us appreciate the need for the reinstitution and reinvigoration of Mediation as a conflict resolution tool.

In the course of a parley between my friend and myself, he told me about a land situation that he was mired in, in Ghana. Six years ago, he bought two plots of land at Botianor, a suburb of Accra, from a company called Alrotech. He paid a tidy amount of $4000 for the plots. You see, Alrotech had acquired a sizeable plot of land from the chief of Botianor with a firm promise to develop it and in the process, create jobs for the local folks. Seems like a good win/win idea to me. However, that is not exactly what happened. As soon Alrotech got access to the land, they decided to sell it for profit. Another individual, among several others, also bought 10 plots of land from Alrotech. Strangely, but not unheard of, his 10 plots of prime real estate seem to include the two plots that my friend bought. Anyone heard of double dipping? I know it is the pastime of our chiefs but I am sure the fly-by-night crooked businesses have also caught on nicely.

Ok, so Mr. Ten plot decided to play rough with my friend by using the latter?s property on the two plots he assumed to own. Trespassing was a daily event designed to frustrate my buddy. Of course my friend was up to the jihad and in return, kicked sand in the face of his neighbor to be. Before long, they had a fight on their hands that ended up in court. Prior to going to court, the chief asked them to consider buying the land in question from him, instead of Alrotech, since Alrotech did not have any right to sell land in Botianor. My friend obliged, and did the royal thing by paying $4000 again for the same plot. The ten plot man, ginned up by his casino mentality, did not want to play ball with the chief, my friend, or Alrotech. Instead, he was more than willing to roll the dice in court. This is a move he will live to regret later.

So far, Mr ten plots and my friend have spent 30 and 10 million cedis respectively on lawyers. For six years, the case has not even been called for initial legal technicalities and shenanigans, let alone a full blown trial. Today, a case involving Adumuah Bossman?s wife that lasted 13 years has finally concluded. 13 years anyemimei!! Never mind the adjournments that lace these often long drawn out trials. So listen to this, just recently, Mr. ten plots called my friend and asked that they sit and talk through their differences. I mean mano-a-mano as they say in boxing! Wow! So now you have it, six years of waiting versus a couple of hours of mediation! Which would you prefer? In the meantime, how much has the price of building materials gone up in the past six years? My veneer observation is that the languid court system has not only failed but disappointed them terribly. That our judicial system is sprinkled with such unattended cases is an understatement and a disgrace. So what are Ghanaians to do when they come face to face with conflicts affecting friends, neighbors, businesses and civil situations? Notice that conflict is a fact of life and no amount of Antoa Nyamaa will wish it away. Are we not frustrated enough with this adversarial legal system that the colonialist bequeathed? If you were in my friend?s shoes what will you do? I want you to think Mediation first before you consider going to court. The courts as they exist today must always be the last resort not the default option.

Using this scenario as a backdrop, let?s get off our rump and explore the use of mediation as a feasible conflict resolution tool in Ghana. What then is Mediation? According to Peter Lovenheim and Lisa Guerin in their book, ?Mediate don?t litigate?, ?Mediation is a process in which two or more people involved in a dispute come together to try to work out a solution to their problem with the help of a neutral third person, called the ?mediator?.? According to them, the mediator?s job is to help the participants evaluate their goals and options in order to find their own solutions. Christopher Moore in his book, ?The Mediation Process? says this; Mediation is generally defined as the intervention in a negotiation or a conflict of an acceptable third party who has limited or no authoritative decision making power, who assists the involved parties to voluntarily reach a mutually acceptable settlement of the issues in a dispute.

From the above definitions, one gets a fair idea of what mediation is. There are various shades and hues of mediation. What is mostly referred to here is facilitative mediation. This is the predominant brand that operates in the West. There are other brands such as directive, transformative and evaluative mediation. Each culture may opt for what works best. I personally think the directive brand may currently work better in Ghana given our culture but eventually, I will like to see us opt for the facilitative genre as our democracy takes hold. The key difference between the directive and the facilitative brand is that the facilitative brand focuses primarily on process while the directive brand employs both process and content. The question of neutrality is an issue with the directive brand. Some argue that neutrality is a myth regardless of what brand you endorse. The reader is free to make their own decision or determination.

The primary role of the mediator is to provide a structure, process and procedures so that parties can move successfully towards workable solutions. The mediation process is voluntary and confidential. The solution emanating from a mediation process has to be mutually acceptable. The Mediator is mostly focused on process as opposed to content. The parties own the solution(s), which do have legal backing. Such solutions are normally written in the form of agreements. During the mediation process, each party is free to leave at anytime if the process is not working for them. They are also free to consult their attorneys for legal advice that may inform their personal decision(s). The key difference here is that the individuals involved in making the decision(s) are the actual parties to the conflict. Not lawyers and judges who seem to frolic in these litigations so long as it keeps them employed. Actual parties to the conflict make informed decisions that is in their best interest.

Before I got my Supreme Court certification to practice as a licensed mediator in Virginia (USA), I swore to my American friends that Mediation as a conflict resolution tool has its roots in Africa. Growing up as a kid in Ghana, I watched by dad mediate several conflicts for family members and friends alike. Indeed mediation is so prevalent in Ghana that even kids do engage in it. Having a third party sit in on a case for you is an age old African practice. So then, why can?t we go back to this process of conflict resolution? This time around, we want to give mediators more skills in their tool box. I mean this is how simple this idea is. Instead of just having probably an elderly person seasoned with wisdom mediate an issue for you, I am saying that, let us train a lot of mediators, old and young, men and women, throughout our communities to deal with disputes. Mediation by the way is recognized globally under the Alternative dispute umbrella. In my view, it is the quickest and simplest way to solving conflict without worrying about cost and corruption. Alas, a probable solution to the corruption menace in our judiciary? Is this a eureka moment or what? No high fives yet! Let get it going and evaluate to see!

Have you wondered why we have not resorted to this method to unclog our constipated courts? Why are we so madly in love with the adversarial colonial court system to the extent that we won?t sankofa a process that has worked beautifully for us over the years? Is this not the method that the now troubled chiefs and our ever so revered elders used in the past till the white man introduced the adversarial court system? Now, we can have it on a wider scale and you don?t have to be a chief or wear a crop of gray hair to be a mediator. The fact that the court system is gravely constipated and convulsed has not seared our conscience hard enough to warrant a groundswell of calls for effective methods like Mediation. Yes, we can?t use Mediation for all cases (eg criminal) but we can unclog the formal legal system with Mediation by attending to a lot of civil cases. Keep in mind also that Mediation falls under the accepted and respected Alternative Resolution System (ADR). A friend of mine likened the Ghanaian court system to a pregnant woman who cannot and does not know when she will be able to give birth. Yes, an elephantine gestation in a constant state of flux. Like everything else, we latch on to the colonial legacy till death do us part. Why can?t we find local solutions that work? Must it always be dictated and given a seal of approval by the West to make it valid? I know Neo-Colonialism is in full effect but is it that bad?

Let us for a moment explore some, certainly not all, of the fabulous yet all round benefits of Mediation. It will take a longer write up to capture all the glorious benefits of Mediation. Observe carefully how it fits intractably in our development efforts and culture as well.

Cost: The cost of training a mediator should not cost more than 10 million cedis per person. In the US 40 hours of training plus a few session of hands on is all that is needed. Indeed that is only if you want court referred cases. If you want to practice on your own in the US, you may not even need any training. I am sure the requirements vary from state to state. If you compare this amount to the cost of training and maintaining lawyers and judges, you can imagine not only the saving but the cavernous advantages of training mediators. Among the skills that one may learn are conflict resolution, negotiation, problem-solving, communications, and practice skills like balancing power, options generations, consensus building, working with co-mediators and dealing with strong emotions. Also, it should not take more than 3 months to get mediators ready for action. One does not have to be a lawyer to be a mediator. Anyone with commonsense can study to me a mediator. Even those without formal education can be trained to be mediators. Lawyers are also welcome to be mediators. In the US, some lawyers are trained mediators and they do offer that service for a fee to their clients. So the next time you have a case, ask you lawyer about mediation.

In addition, the Mediation process is very cost effective. Often times, it takes only one session (about an hour) to dispose off a case. Even where extra sessions are needed, it does not come close to the cumbersome procedure filled labyrinth of our court system. It will not cost you your family?s heirloom to go through mediation. On the contrary you could lose all your life?s work toying with the slow grinding adversarial court system. The court system as it exist promotes win/lose outcomes that is destroying our society and relationship. Families fall in disarray when one faction wins and the other loses. This goes for chieftaincy and other systems as well. Mediation is not about who can outsmart the other in technicalities, dramatizations and theatrics. The goal is to explore what is in the best interest of the parties involved as opposed to positional grandstanding. This is not about right or wrong or blaming each other. It is about what is in the best interest of the parties to the conflict.

Time: Mediation is a time smart process that will free our people from unproductive and unending litigation that benefits all besides the actual parties involved in the conflict. Since we need our people to spend their efforts in building wealth and surviving, where the latter may be the case, Mediation seems to be the ideal process for resolving civil issues. Time spent in law offices and court houses with nothing to show for it, can be wisely spent in a mediation process with not only a lot to spare but superior results to boost.

Flexibility: Mediation is a process that can be brought to your doorstep, unlike our court system that requires travel spanning the length and breadth of the country. I remember once when a police office threatened to make us go to court in Sekondi, even though we lived in Accra. They arrested us for speeding at a place called Ohiamadwen (the need to reason) on the Cape Coast- Takoradi road. I hope their outmoded and freshly painted radar gun was actually working! Meanwhile, they confiscated the driving license of my brother. Do you smell a bribe in the asking? What if we could get some kind of reasonable instant justice on the spot? I am not saying that mediation is necessarily the answer here but I just wanted to throw light on the travel that is involved with our messy court system. Having Mediation done locally and within hours will provide the flexibility that our people, especially the local ones need.

Furthermore, Mediation allows disputants the flexibility of visiting all the delicate nooks and crannies of an issue or case. This kind of flexibility eludes parties who appear before our stiff necked judges, urged on by the broad brush of our harsh colonial laws. Remember that our court system does not allow disputants to even hear each other, let alone understand where they are coming from. If anyone is following the kind of sentencing that spew out of our courts, I don?t have to convince them that the frequency of absurdity is troubling. Can you imagine somebody going to jail for 20 years for stealing a few fingers of plantain or going to jail for 5 years for stealing a single coconut? Where is the flexibility? How really does the owner benefit from these long sentences paid for by the taxpayer? Notice also that even in criminal cases, mediation can take place to help the victims come to closure. It could be done before the culprit goes to jail or after he comes out of jail. For some, sitting with the ?criminal? is a healing process. They want to understand the motivation and even offer help to the ?criminal?.

Win/Win Solutions: The beauty of Mediation is that it seeks win/win solutions. The parties involve develop their own agreements as opposed to an insensitive judge who does not give a care if both parties gargle acid for breakfast , lunch and dinner. Since relationships are the strings that hold our extended family system and friendships together, it is important that we have people at the end of testy disputes shaking hands. Mediation is the perhaps the primary conflict resolution system that has the relationship of the disputants at heart. It seeks to nurture a fruitful relationship after the conflict is over. Since Mediation is not about winners and losers, disputants are expected to give each other a firm handshake after the session or even go out for a drink if they feel like it. Can we say the same of the court system?

I want to end by saying that an American friend of mine and I are trying very hard to build a mediation center in Ghana to train mediators. We need help in terms of resources and location of the center. We ask that all who believe that this method is worth pursuing put their money where their mouth is. We also encourage that people ask our government to seriously consider this idea. If we can build a royal academy to train chiefs, nurse a ministry of chieftaincy, provide 100 acres of land plus ploughing and seedlings to our MPs for free and offer charitable car loans to our ministers, we must certainly not be in a position to actualize this noble idea that will benefit every Ghanaian and move us closer to our developmental goal? I am willing to volunteer my time to help train mediators in Ghana. There are lot of Americans who want to help as well but they need to see action from us first. Some have even offered to help train our folks. Look, if businesses like IBM and others use it, why not us. Mediation can be used in every patch of our society. We have to wring conflict by the neck and Mediation is one tool that will help create a peaceful and cohesive society primed for industrial strength development! Let us act to make this dream a reality. Call your MP and certainly give the leaders an earful on this one! We have to build capacity to make Mediation work in Ghana. Help make this dream a reality.

Views expressed by the author(s) do not necessarily reflect those of GhanaHomePage.