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Title
Page
Contents
Foreword
The Judicial Service of Ghana-Mission Statement
i - iv
v
vi
Chapter One
What is Alternative Dispute Resolution (ADR)
1.1
1.2
1.3
1.4
1.4.1
1.4.2
1.4.3
1.5
Chapter Two
Legal Mandate for Court Connected ADR
2.1
Basic Legal Mandate
2.1.1 Courts Act 1993 (Act 459)
2.1.2 High Court Civil Procedure Rules 2004, C.I.47 Order 58 Rule 4
2.1.3 Legislation which provide for ADR
1
1
1
2
2
2
2
3
4
4
4
5
Chapter Three
Court Connected ADR Methods
3.1
3.2
3.3
Judicial Service Court Connected ADR
30
Negotiation
Mediation
Conciliation
6
6
6
I
5.1
5.1.1
5.1.2
5.2
ii
13
13
13
13
No. of cases
pending at the
end of the month
No. of cases
referred back
to court
No. of cases
settled
Number of
sittings
.........
Name of Mediator
No. of Cases
No. of Cases
referred during the
Mediated
period
TOTAL
Chapter Five
Procedure for Court Connected ADR
Qualification of a Neutral
11
Disqualification of a Neutral
11
Remuneration
11
Natural Justice
11
Immunity of a Neutral
11
Duties of Judges and Magistrates in respect of Court Connected
ADR
12
Lawyers
12
Other participants
12
DATE
4.5
4.6
8
8
8
9
9
10
10
10
MONTH ..................................................................
Chapter Four
Key Participants in Court Connected ADR Process
4.1
Parties
4.1.1 The National ADR Coordinator
4.2
Functions of the National ADR Coordinator
4.2.1 The Regional ADR Coordinator
4.2a Functions of the Regional ADR Coordinator
4.2b ADR Officer
4.2.1 Functions of the ADR Officer
4.3
Neutral
4.3.1
4.3.2
4.3.3
4.3.4
4.3.5
4.4
APPENDIX F
6
6
6
7
COURT ...................................................................
Arbitration
Customary Arbitration
Med-Arb
Neutral Case Evaluation
3.4
3.5
3.6
3.7
29
APPENDIX E
5.3
5.4
5.5
5.6
5.6.1
5.7
5.7.1
5.7.2
5.7.3
5.8
5.8.1
INFORMATION GATHERING
Defendant(s) summarises case
PROBLEM INDENTIFICATION
Clarify interests, reduce them into issues
13
14
14
14
15
15
16
16
17
17
17
6.1
6.2
6.3
6.4
6.5
6.6
6.7
18
18
18
18
19
19
19
Chapter Seven
Ethics of ADR Practice
AGREEMENT
Reduce option(s) into a written agreement in clear, certain
unambiguous terms, executed/signed by both parties and the
Mediator
NO AGREEMENT
Case goes back to Court for trial
CONSENT JUDGMENT
Written Agreement Referred Back to Court to be reduced into a
Consent Judgment
28
7.1
7.2
7.3
7.4
7.4.1
7.4.2
20
20
20
20
20
20
iii
7.4.3
7.5
7.6
7.7
7.8
Independence
Abuse of ADR Process
Conflict of Interest
Confidentiality
Requirement for Best Practice
21
21
21
22
22
Chapter Eight
ADR Service Providers
8.1
8.1.1
8.1.2
8.1.3
APPENDIX
D
EXTRACT FROM GHANA BAR ASSOCIATION, CODE OF ETHICS AND
CONSTITUTION
43(1)
(43(2)
23
23
23
23
23
23
23
a.
APPENDIX
Appendix 'A'
Consent Form
24
Appendix 'B'
25
Appendix 'C'
Appendix 'D'
27
Appendix 'E'
Appendix 'F'
iv
29
27
APPENDIX C
ADR Directorate
FOREWORD
This Manual is the product of a Workshop in 2007 by the Judicial Service (ADR
Directorate) of Ghana with support from the United Nations Development
Programme (UNDP).
The proposal for the Workshop followed from the realization that the
availability of a manual on the practice of Court-Connected ADR in Ghana will
enhance the general effort being made, particularly by the Judiciary, in the
institutionalization of ADR as a recognized aspect of the judicial process in the
country. The existence of the practice manual that is generally accepted will
assist in formalizing the process along certain uniform lines and also further
the general acceptability of Alternative Dispute Resolution in the country.
In addition, it is believed that the Manual will completely transform for the
better, ADR practice in the traditional sector where the Manual will become a
basic guide for the traditional rulers and other private practitioners engaged
in the ADR process. This Manual is therefore designed as a guide for all
credible ADR practitioners in the country.
The Judicial Service acknowledges the immense contribution made by the
ADR Coalition of Ghana and UNDP towards the development of this manual
and particularly appreciates their kind permission for the use of their
Chapters 1-3 and 7 of the Manual on ADR General Practice as the base
documents for the development of the relevant paragraphs of this manual.
With the enactment of the Alternative Dispute Resolution Act (Act 798) of
2010, the Judicial Service has reviewed this manual to bring it in tune with the
provisions of the Act.
September, 2010
26
APPENDIX B
............................................................................................................................................................
............................................................................................................................................................
............................................................................................................................................................
Objectives
The objectives are to:
............................................................................................................................................................
............................................................................................................................................................
............................................................................................................................................................
............................................................................................................................................................
Plaintiff(s)/Complainants(s) Name and Contact No........................Defendant/Accused Name and Contact No..................
Neutrals Name:..
Neutrals Signature.
Date of Agreement:.
vi
25
APPENDIX A
CHAPTER ONE
WHAT IS ADR?
CONSENT FORM
DISTRICT/CIRCUIT/HIGH/ APPEAL/ SUPREME COURT
1.1
1.2
In the.Court
Case/Suit No
Station:...
Date:
The Registrar/ADR Officer/ Mediator having explained to the parties and their Solicitors
(where applicable) the nature of the Confidential ADR process , the parties to this action
hereby confirm their voluntary consent to (CCADR) process.
1.
To attend:
a. Negotiation,
(a) Mediation
(d) Conciliation
(b) Arbitration
(c) Negotiation
(f) Med-Arb
b. Mediation,
c. Conciliation,
d. Arbitration,
e. Customary Arbitration,
2.
Date of Session:...
Signatories:-
(i)
Plaintiff(s)/Complainant(s):.
(ii)
Plaintiff(s)/Complainant(s) Solicitor:..
(iii)
Defendant(s)/Accused:
(iv)
Defendant(s)/Accused Solicitor:..
..
Judge/Magistrate/ADR Officer
Neutral:..
DECLARED AT................. THIS..............
DAY OF.................................. 20
After the contents had been read
over and interpreted to him/her in
the local language by
when he/she seemed to understand
same before making his/her mark hereto
Judicial Service Court Connected ADR
24
Full Name:
Court:.
..
D E C L AR AN T
b. Private,
Judicial Service Court Connected ADR
CHAPTER EIGHT
c. Relatively fast
d. Relatively cheap
e. Preserves relationships between parties,
8.1
8.1.1
1.4
1.4.1
To the Parties
8.1.3
The Labour Act, 2003 (Act 651) provides that every Collective
Agreement shall contain a provision for final and conclusive
settlement by ADR in accordance with the Act.
8.1.6
23
parties,
1.5
Confidentiality
(1) A neutral shall not disclose information the neutral obtains during
an ADR process to another person without the consent of the
parties.
(2) Despite the requirement of confidentiality, a neutral shall disclose
information the neutral obtained during an ADR process if the
neutral is required by law to disclose the information in a matter
related to
(b) shall report to the ADR Officer the need for professional
assistance in respect of any specialized area of the case before
the neutral.
(c) may with the agreement of the parties invite a professional to
assist that neutral in the mediation process; and
(d) has a duty to report any misconduct by a co-neutral or other
neutral.
22
CHAPTER TWO
LEGAL MANDATE FOR COURT CONNECTED ADR
2.1
a relative of a party
iii.
iv.
7.4.3 Independence
A Neutral shall carry out hi/her duty free from any external influence
which is likely to affect the outcome of the dispute.
7.5
(2) The pre-trial judge shall within a period of thirty (30) days from
ii.
a party
Section 72 (1) Any court with civil jurisdiction and its officers shall
promote reconciliation, encourage and facilitate the settlement of
disputes in an amicable manner between and among persons over
whom the court has jurisdiction.
(2) When a civil suit or proceeding is pending, any court with
jurisdiction in that suit may promote reconciliation among the
parties and encourage and facilitate the amicable settlement of
the suit or proceeding.
i.
7.6
Conflict of InterestA neutral shall not accept an appointment where the neutral
(a) has prior knowledge of the subject matter of the dispute from
any of the parties or the representatives or associates of the
21
CHAPTER SEVEN
ETHICS OF ADR PRACTICE
7.1
7.2
7.3
7.4
the date the case is assigned to him invite parties to settle issues
for trial and effect settlement of the dispute.
(4) Experts may be invited by the pre-trial judge to assist at the pretrial settlement conference.
2.1.3 Legislation which provide for ADR
Enactments which provide for ADR include:-
Fundamental Rule
Neutrals shall be free from bias and shall proceed diligently and
efficiently to assist the parties to reach a just and effective
resolution of their dispute.
Acceptance of Appointment
Elements of Bias
7.4.1 Impartiality
7.4.2 Partiality
20
b. The ADR Officer shall inform the parties to appear in court at the
next sitting day.
CHAPTER THREE
COURT CONNECTED ADR METHODS
3.1
6.5
Negotiation
Mediation
Mediation is a process by which a neutral third Party, a mediator,
facilitates communication between the parties to assist the parties
to reach a mutually acceptable settlement.
3.3
Arbitration
Arbitration is the process of voluntary submission of a dispute to
one or more neutral persons for a final and binding determination.
3.5
Destruction of Records
At the close of the ADR session, a neutral shall destroy all written
information gathered at the ADR session in the presence of the
parties and return tape recordings, video clips, pictures, receipts,
maps and other information in permanent form to their owners.
Conciliation
Conciliation is a process by which a third person on request assists
the parties to amicably settle their dispute. The neutral third
person may ask the parties to submit evidence and make
settlement proposals.
3.4
6.6
Customary Arbitration
6.7
Arbitration is customary if
Med-Arb
Med-Arb is a process which starts with mediation and concludes
19
with arbitration. This occurs where the parties agree before the
mediation process, that there should be arbitration if the mediation
fails. The parties must in their agreement determine whether the
same neutral should conduct both processes.
CHAPTER SIX
ADR SESSIONS
6.1
Medium of Expression
All ADR shall be conducted in a language determined by the
disputants. Where the court interpreter cannot satisfy the needs
of the parties, the parties shall engage the service of an interpreter
at their own cost.
6.2
Termination of Proceedings
The Neutral may terminate proceedings within 30 days if parties are
unable to reach settlement.
Neutral shall request for extension of 30 days if settlement is not
reached within the specified period.
6.3
3.7
Failure of Settlement
Where parties fail to reach a settlement
a. the neutral shall terminate the proceedings and notify the ADR
officer in writing.
18
CHAPTER FOUR
I. the award is final and binding on the parties and any person
claiming through or under them;
Parties
In a Court Connected ADR, parties means disputants
Rights of parties
a. Own the dispute and may choose to manage the resolution of
the dispute through any ADR process.
b. Choose their own neutrals or consent to the choice of a neutral
for them where they are unable on their own to agree on a
neutral.
c. Are at liberty to withdraw from negotiation, conciliation or
mediation session before an agreement is signed or thumb
printed.
d. Or their representatives determine the terms of agreement in a
participatory process.
e. If they choose a neutral outside the court approved list of
neutrals, they pay the fees of their neutral.
f. Where they choose a venue other than the venue
recommended by the ADR officer, they pay for the use of the
venue.
4.2
Customary Arbitration
Customary Arbitration is a form of Arbitration initiated;
a. by the parties to a dispute
b. by invitation of a chief, or
c. on recommendation of a family elder or other person.
17
4.2.3
16
Neutral
a. Where the parties reach an agreement, the parties shall write and
sign the terms of settlement.
5.7
Arbitration Process
The arbitral process shall be regulated by the agreement of the
parties, rules of the service provider or by statute.
10
15
5.4
5.5
b. where the parties are unable to choose a neutral, the court shall
appoint a neutral from the court approved Register.
4.3.3 Remuneration
Neutrals shall be recompensed at rates determined by the ADR
Directorate taking into consideration;
Natural Justice
14
11
4.4
CHAPTER FIVE
5.1
Lawyers
Other participants
Other participants in ADR include
b. that the parties should appear before the ADR officer, and
c. the time parties should appear in court to announce the
outcome of the process which shall not be more than thirty days
after the parties have appeared before the ADR Officer.
12
Order By Court
5.3
13