ADDRESS BY HER LADYSHIP THE CHIEF JUSTICE, JUSTICE GERTRUDE S. TORKORNOO AT THE OPENING OF THE ADR WEEK HELD ON MONDAY 13TH NOVEMBER 2023 AT SEKONDI TAKORADI.
Honourable Justices of the Superior Courts,
Judge-In-Charge of ADR, Her Ladyship Justice Angelina Mensah- Homiah (JA)
Honourable Minster and MP
Members of the Bar
The Director ADR
Staff of the Judicial Service
Our Friends from the Media
Distinguished Ladies and Gentlemen
Thank you for the gathering for the official opening of JSG’s ADR week program so early in the 2023-2024 legal year term. This year, the theme for the week is ‘BUILDING THE PILLARS OF JUSTICE THROUGH ADR’. Justice is a cornerstone of any civilized society. It is the outcome of social and judicial interactions that are fair.
Systems of Conflict Resolution
The court related system of adjudication can be time-consuming, costly, and emotionally draining. Compared to the elaborate nature of adjudication, ADR is a strong pillar of conflict resolution. Alternative Dispute Resolution refers to a range of methods, including mediation, arbitration, negotiation, and conciliation, which offer efficient and cooperative approaches to dispute resolution. These methods have gained increasing importance in our legal landscape because of what they represent.
ADR is an invaluable asset in building the pillars of social justice because of its ability to foster open and constructive dialogue. When parties in a dispute come together in a coordinated and non-adversarial setting, they have the opportunity to express their concerns, fears, and expectations to each other, with the assistance of a mediator. Through these processes, they do not only gain a better understanding of each other's perspectives but also pave the way for creative, mutually beneficial solutions. Because of this, ADR encourages the preservation of relationships. In many legal disputes, the adversarial nature of litigation can leave a trail of bitterness and damaged personal or business connections. ADR, on the other hand, strives to maintain these relationships and ensure that the parties involved can continue to interact, even if they've disagreed in the past.
Efficiency is another hallmark of ADR. Traditional court proceedings are characterised by strenuous processes that lead to delays and costs, and these can hinder access to justice. ADR, on the contrary, is designed to be swift and cost-effective. The quick resolution of disputes is crucial in ensuring that justice is not only served but is served in a timely manner, allowing individuals and organizations to move forward without undue hardship.
Because of these characteristics, ADR is often appreciated as a champion of fairness and equality. In many legal disputes, the party with resources that can secure legal expertise can gain an advantage. ADR levels the playing field, since it is conducted in informal venues, making justice accessible to all, regardless of financial status or legal knowledge. This inclusivity ensures that justice is open and accessible to all citizens, regardless of financial ability.
ADR also encourages innovative and tailored solutions to problems. By allowing parties to design resolutions that fit their unique circumstances, it promotes a sense of ownership over the outcome. This does not only result in more sustainable resolutions but also empowers individuals to take control of their situations. ADR, in this way, contributes to the construction of robust and resilient pillars of justice.
Even though ADR is not applicable to every case, for example, criminal cases of felony and matters of public interest, to a large extent, it serves as a huge compliment to the traditional court system in dispensing justice. When used alongside traditional court proceedings, it provides a strong alternative for aiming at satisfactory results.
Building the pillars of justice through Alternative Dispute Resolution is not merely an abstract idea. It is a practical and potent method for resolving conflicts that aligns with the principles of fairness, equality, and efficiency. ADR offers a platform for open dialogue, preserves relationships, ensures efficiency, promotes fairness and equality, and encourages innovative problem-solving. By incorporating ADR into our justice system, we reinforce the harmonious foundations of our society. It is our duty to advocate for its widespread adoption and continue to strive for a world where justice prevails through peaceful and constructive means.
The importance of ADR as outlined above is the reason why in 2005, the judicial service of Ghana adopted ADR and made ADR a core component of our adjudicating system. ADR was adopted to compliment the regular court system for faster and efficient resolution of cases pending before the court. The judicial service has since 2005 created the necessary environment within our courts to serve court users with all the benefit of ADR in order to make justice more accessible to all, especially the poor and vulnerable. In order not to withhold this intervention from the people of Ghana a week in each year term is set aside to observe ADR week. This is the reason I am with you here today.
During every ADR week, two major activities are carried out;
- The first is a mass mediation exercise; During an ADR week, parties who have cases pending in the court that are connected to the ADR program are given the opportunity to have their cases settled using mediation. Mediators are assigned to each court to help the parties to resolve cases that have been referred to ADR by judges and magistrates. A lot of cases are settled during this exercise to reduce the backlog of cases in the court.
- The second major activity carried out during ADR week is Public Awareness: the week is also used to create extensive public awareness in order to educate the citizenry on the use of ADR at the court. Stakeholders such as, judges, court officials and lawyers are also sensitized to the option of ADR.
The ADR program of the court (CCADR) is very effective and guarantees the interest of parties who have come to count. The parties are involved in every aspect of the resolution process. Agreement reached at the end of the process is sent to the court for adoption as a consent judgment, thereby making the terms of settlement enforceable by the court.
- The basic legal mandate for ADR is found in sections 72 and 73 of the Courts Act 1993 (Act 459) which provide for the use of ADR in appropriate cases. It states:
- 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.”
“Section 73—provides thus
- Any court, with criminal jurisdiction may promote reconciliation, encourage and facilitate a settlement in an amicable manner of any offence not amounting to felony and not aggravated in degree, on payment cases of compensation or on other terms approved by the court before which the case is tried, and may during the pendency of the negotiations for a settlement stay the proceeding for a reasonable time and in the event of a settlement being effected shall dismiss the case and discharge the accused person.”
- The High Court (Civil Procedure) (Amendment) Rules 2020, C.I. 133, which amended Order 32 of the High Court (Civil Procedure) rules 2004, C.I. 47, also enjoins Judges of the High Court and Circuit court to facilitate settlement of disputes using ADR, where appropriate.
At the application for directions stage, where a dispute is one which by law can be settled, a trial Judge must enquire from the parties if they are willing to attempt settlement of the case by ADR or other means.
- Order 32 rule 5 (1) of C.I. 47 as amended by C.I. 133 reads:
“Where an application for directions is heard by the Court at first instance, the Court shall, except where the dispute is by law not amenable to settlement, enquire from the parties if the parties are willing to attempt settlement of the case by alternative dispute resolution or other means”.
- The rules also place emphasis on settlement of Commercial Claims. Thus, Order 58 rules 4 (1) and 4 (2) of C.I. 47 as amended by C.I. 133 provides that:
“The Court shall have a duty to encourage the amicable resolution of commercial claims and early settlement of pending commercial litigation by voluntary action of the parties in accordance with the provisions of this Order.”
- Rule 4(2)
“parties to a commercial action shall have a corresponding obligation to assist the Court to achieve the early and amicable settlement of cases”
- There is a similar provision in the District Court Rules, C.I. 59. Order 25 rule 1(3) of the District Court Rules (C.I. 59) as amended by District Court (Amendment) Rules, 2020 (C.I 134).
“(3) Where a case is called for hearing and all the parties attend, the Court shall, except where the dispute is by law not amenable to settlement, first enquire from the parties if the parties are willing to attempt settlement of the case by alternative dispute resolution or other means”
- Other Enactments which provide for ADR are:
- The Alternative Dispute Resolution Act, 2010 (Act 798)
- Matrimonial Causes Act, 1971 (Act 371).
The CCADR system places emphasis on Interest based approach to conflict resolution and not rights -based approach (Non-adversarial).
- The parties own the process, and taking into account their collective interests, they are able to design a custom-made solution to their dispute.
- Emphasis is placed on what the parties think is the best solution to their dispute.
Over the last one and half decades the ADR programme has, to a large extent performed impressively by helping the Judiciary to reduce the load on the Courts by 32,745 cases. This is a positive support ADR has offered the Judiciary without which this load would have been borne by the Courts under more stressful condition. The good news is that this number of cases resolved at ADR are resolved absolutely without parties coming back into the court for appeals.
The importance of ADR as I have demonstrated to you this morning gives management of the Judicial Service every compelling ground to focus attention on ADR and resource the ADR Directorate to do more to make our Courts efficient, user friendly and to make access to justice real.
To the general public, ADR has become a core component of Ghana’s adjudication system. What this means is that, a case in Court in Ghana today can be finally determined either through ADR or litigation. Therefore when a judge refers a case to ADR parties in the matter should not feel slighted. As such I recommend ADR to everyone in appropriate cases. I do so because the benefits in using ADR far outweigh that of litigation. I urge our Registrars and the general staff to handle ADR processes with the seriousness as they do with the regular court processes ADR empowers disputants to resolve their cases in an interest-based manner without concerning themselves with the strict dictates of the law.
This is the reason why parties who opt for ADR attain maximum satisfaction at the end of the day. Judges and Magistrates must therefore give ADR attention in their quest to do justice as ADR Constitutes a major pillar of justice.
As I conclude with gratitude to all of you, for your time, I hereby declare the nationwide ADR Week programme duly launched.