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Title
Page
Contents
i
v The Judicial Service
vi
of
iv
Ghana-Mission
Foreword
Statement
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
2.1
2.1.
1
2.1.
2
2.1.
3
3.1
3.2
1
1
1
2
2
2
2
3
Chapter Two
Legal Mandate for Court Connected ADR
Basic Legal Mandate
4
Courts Act 1993 (Act 459)
4
High Court Civil Procedure Rules 2004, C.I.47 Order 4
58 Rule 4 which provide for ADR
Legislation
5
Chapter Three
Court Connected ADR Methods
Negotiation
Mediation
6
6
3.3
Judicial Service Court Connected ADR
30
Conciliation
6
I
6
6
6
7
4.1
4.1.
1
4.2
4.2.
1
4.2a
4.2b
4.2.
1
4.3
Chapter
Four
Key Participants in Court Connected
ADR Process
Parties
The National ADR Coordinator
Functions of the National ADR Coordinator
The Regional ADR Coordinator
Functions of the Regional ADR
Coordinator
ADR Officer
Functions of the ADR Officer
Neutral
8
8
8
9
9
10
10
10
Initiation
Initiation
Initiation
Order by
of Court-Connected ADR
by Parties
by Court
Court
13
13
13
13
No. of cases
settled
Number of
sittings
TOTAL
MONTH ..................................................................
Chapter Five
Procedure for Court Connected ADR
COURT ...................................................................
Qualification of a Neutral
11
Disqualification of a Neutral
11
Remuneration
11
Natural Justice
11
Immunity of a Neutral
11
4.4
Duties of Judges and Magistrates in respect of
Court ADR
Connected
12
4.5 Lawyers
12
4.6 Other participants
12
4.3.
1
4.3.
2
4.3.
3
4.3.
4
4.3.
5.1
5.1.
1
5.1.
2
5.2
APPENDIX F
No. of cases
pending at the end
of the month
Arbitration
Customary Arbitration
Med-Arb
Neutral Case Evaluation
No. of cases
referred back
to court
3.4
3.5
3.6
3.7
ii
.........
Name of Mediator
29
APPENDIX E
5.3
13
5.4
14
5.5
14
5.6
14
5.6.1
15
5.7
15
5.7.1
16
5.7.2
16
5.7.3
17
5.8
17
5.8.1
17
Chapter
Six
INFORMATION GATHERING
Defendant(s) summarises case
PROBLEM INDENTIFICATION
Clarify interests, reduce them into issues
AGREEMENT
6.6
19
6.7
19
ADR
Session
s
6.1
18
6.2
18
6.3
18
6.4
18
6.5
19
Chapter
Seven
Ethics of ADR
Practice
Termination of Proceedings
Drawing up of Settlement Agreements
Failure of Settlement
Protection for Children
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
Destruction of Records
7.1
20
7.2
20
7.3
20
7.4
20
7.4.1
20
7.4.2
20
Acceptance of Appointment
Fundamental Rule
Elements of Bias
Impartiality
Partiality
iii
7.4.
3
7.5
7.6
21
7.7
22
7.8
22
Independence
Abuse of ADR Process
Conflict of Interest
21
21
Appendix 'C'
Confidentiality
Requirement for Best Practice
Chapter
Eight
ADR Service
Providers
8.1
23
8.1.1
23
8.1.2
23
8.1.3
23
8.1.4
8.1.5
23
8.1.6
23
D
Form
Appendix 'F'
APPEN
DIX
Appendix 'A'
Consent Form
24
Appendix 'B'
Terms of Agreements
25
Appendix 'D'
Ghana Bar
Association, Code of
Ethics (Extract)
27
Appendix 'E'
Connected ADR
APPENDIX
(43(2)
27
APPENDIX C
ORGANOGRAME
The Office of the Chief Justice
ADR Directorate
FOREWO
RD
manual to bring it
in tune with the
provisions of the
26
Act.
September,
2010
APPENDIX B
In the.
Date:
........................................................................................ ...............
.....
......................................................................................................................................................
......
......................................................................................................................................................
......
......................................................................................................................................................
......
......................................................................................................................................................
......
......................................................................................................................................................
......
......................................................................................................................................................
......
......................................................................................................................................................
......
......................................................................................................................................................
......
......................................................................................................................................................
......
Plaintiff(s)/Complainants(s)
No..................
Name
and
Contact
No........................Defendant/Accused
Plaintiff(s)/Complainant(s)
Signature
Name
and
Contact
Signature:.Defendant/Accused
Plaintiff(s)/Complainant(s)
Solicitors
justice.
Solicitors
Signature..Defendant/Accused
Solicitors
Neutrals Name:..
Neutrals Signature.
Date of Agreement:.
vi
25
APPENDIX A
CHAPTER ONE
WHAT IS ADR?
CONSENT FORM
1.1
1.2
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 actio n hereby confirm their voluntary consent to (CCADR) process.
1.
a.
Date:
To attend:
(a) Mediation
(b) Arbitration
(c) Negotiation
(d) Conciliation
Negotiation,
b.
(e) Customary Ar
bitration
(f) Med-Arb
Mediation,
c.
2.
Conciliation
Signatories:-
, d.
(i)
Arbitration,
Plaintiff(s)/Complainant(s):.
(ii)
Plaintiff(s)/Complainant(s)
..
(iii)
Solicitor:
Defendant(s)/Accused:
(iv)
Defendant(s)/Accused
Solicitor:..
..
Judge/Magistrate/ADR Officer
Neutral:..
2
4
e. Customary Arbitration,
f. Mediation-Arbitration (MedArb), and g. Neutral Case
Evaluation
Mediation however is the main method used for the
Court
Connected ADR (CCADR).
Judicial Service Court
Connected ADR
1.3
Nature and Characteristics of CourtConnected ADR (CCADR)
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
Full Name:
Court:.
CCADR is
..
DECLARANT
a.
Confidential
, b. Private,
2
4
c. Relatively fast
which include:-
d. Relatively cheap
1.4.1
To the Parties
a. parties actually own the process
b. it encourages access to justice for the poor and
the vulnerable c. saves time and money
d. increases flexibility and control in:
i. the procedures followed
ii. the interest
considered and iii.
agreements reached.
e. private and confidential
f. improves communication and preserves
relationships, and g. reduces stress and
enhances personal satisfaction
2
3
CHAPTER
EIGHT ADR
SERVICE
PROVIDERS
8.1
The Courts
At the first appearance of the parties before
judgement.
8.1.3
human
rights
and
8.1.6
2
3
parties,
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
(a) the abuse of children,
(b) commission of a crime, or
(c) danger of serious physical harm to a party,
another person or damage to property.
7.8
2
2
misconduct by a co-
CHAPTER
TWO
LEGAL MANDATE FOR COURT
CONNECTED ADR
2.1
2.1.1
RULE
4
Procedure after
reply
Rule 4(1) After a Reply has been filed or the time
for filing the Reply has elapsed, the Administrator
of the Commercial Court shall, within three days
assign the case to one of the Commercial Court
Judges, to conduct a pre-trial settlement conference.
(2) The pre-trial judge shall within a period of thirty
(30) days from
2
1
a.
7.6
a party
ii.
a relative of a party
iii.
iv.
Independence
process,
b.
2
1
ADR process, or
CHAPTER
SEVEN ETHICS OF
ADR PRACTICE
7.1
7.4.2 Partiality
the
ethical
standards
of
conduct, b.
promote excellence
in practice
c. provide ethical, competent, appropriate and
effective means of dispute resolution, and
d. promote public confidence
in ADR
7.2
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.
7.3
Acceptance of Appointment
A person shall not accept appointment as a neutral if
that person is not competent in the particular ADR
process
and
cannot
devote
the
time
and
professionalism required.
7.4
Elements of Bias
The criteria for assessing questions relating to bias are
impartiality and independence.
7.4.1 Impartiality
Impartialitymeans
freedom
from
favouritism,
sex, religion, ethnicity, or bias either by appearance,
word, conduct, action, and a commitment to help
parties in resolving a dispute. A neutral must not;
a.
2
0
2
0
CHAPTER
THREE
Negotiation
Negotiation is a process by which parties to a
dispute or their representatives discuss the issues in
dispute with the intention to settle the dispute without
the intervention of a third Party.
3.2
Med-Arb
Med-Arb is a process which starts with mediation
and concludes
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
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
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
Customary Arbitration
Arbitration
customary if
is
1
9
b.
6.5
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.
their own cost.
C
6.1
Medium
of
Expressio
n
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.
6.7
Post Settlement Procedure Where the parties
reach a settlement
a. the parties or the neutral shall send the terms of
settlement to the ADR officer for filing.
b. If the court is in session, the ADR officer shall
immediately send the terms of settlement to the
court and request the parties to appear before the
court that same day or the next sitting day, and
c.
The
court
settlement
judgement.
shall
enter
the
terms
of
without modification as consent
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
1
9
days if settlement
is not reached
within the specified
period.
e
m
e
n
t
6.3
Drawing up of
Settlement
Agreements
a.
the
parties shall
draw
their
own Terms of
Settlement,
or
W
h
e
r
e
b.
t
h
e
p
a
r
t
i
e
s
r
e
a
c
h
c
.
t
h
e
a
g
r
e
e
m
s
e
t
t
l
Judicial Service Court
Connected ADR
e
n
t
the
neutral
may draw the
agreement
at
the request or
the parties and
state
on
the
agreement that
the neutral drew
up
the
settlement
agreement at the
request of the
parties, and
W
h
e
r
e
s
h
a
l
l
p
a
r
t
i
e
s
(i) be in simple
language
(ii) be certain
and not vague,
and
f
a
i
l
(iii) clearly
specify
obligations
of each
party and
the dates or
periods by
which
obligations
are to be
carried out,
t
o
r
e
a
c
h
a
s
e
t
t
l
e
m
e
n
1
9
t
a. the neutral shall
terminate
the
proceedings
and
notify the ADR
officer in
writing.
3.7
Neutral Case
Evaluation
Neutral
Case
Evaluation
is
a
process by which
the parties, their
lawyers or both the
parties and their
lawyers
appear
before a neutral,
present a brief of
the evidence and
arguments
in
support of their
respective cases.
The neutral makes
a
non-binding
evaluation of their
positions and gives
an
opinion
concerning
the
likely outcome if
the dispute is tried
in court. Based on
the evaluation, the
parties may decide
on what dispute
resolution process
to use to reach a
mutually
acceptable
agreement.
1
9
CHAPTER
FOUR
KEY
PARTICIPANTS
IN
CONNECTED ADR PROCESS
4.1
4.2.1
COURT
Parties
In a Court Connected ADR, parties means
disputants
Rights
parties
of
1
7
h.
Customary Arbitration
Customary Arbitration
Arbitration initiated;
a.
is
form
of
by the parties to a
dispute b.
by
invitation of a chief, or
c.
on recommendation of a family elder or
other person.
5.8.1 Awards in Customary Arbitration
In Customary Arbitration Parties may take the
necessary legal steps as exists under the rules of court
to have the award registered and enforced.
1
7
5.7.1.
Arbitration Hearing
In an arbitration
a. a party may be represented by a lawyer or any
other person;
b. unless otherwise agreed by the parties, the hearing
shall be in private;
c. the Arbitrator may at the beginning of the
hearing ask for opening statements from the
parties to clarify the issues involved in the
Arbitration;
d. the claimant shall first present evidence in support
of the claim of the claimant and this shall be
followed by the respondent;
e. an Arbitrator may vary the order of presentation;
f.
1
6
matters.
4.2.2
ADR
1
6
4.3
e.
f.
1
0
1
5
Settlement Agreement
In Negotiation, Mediation or Conciliation,
Arbitration Process
1
0
1
5
5.6
a. trained neutrals,
and
b.
ADR
providers.
5.4
service
5.5
In negotiation,
parties
the
f.
1
4
1
1
i.
advises
evaluates
and
Immunity of a Neutral
A neutral and an employee or agent of the neutral are
not liable for any act or omission in the discharge of
duty unless the act or omission complained of is in bad
faith or is a Criminal Act.
Registered
Remuneration
Neutrals shall be recompensed at rates determined
by the ADR Directorate taking into consideration;
a. qualification of the
neutral, b. expertise of
the neutral, and
c. complexity of the matter in
dispute
4.3.4
Natural Justice
A neutral shall abide by the Rules of Natural Justice
which includes a. giving a party equal opportunity to
1
4
1
1
4.4
Duties of Judges and Magistrates in respect
of Court Connected
ADR
Judges and Magistrates:
a. have a duty to facilitate, promote and refer cases
to ADR where appropriate, and
Lawyers
A lawyers role varies depending on the ADR process.
Lawyers shall:
a.
4.6
1
2
1
3
CHAPTER
FIVE
PROCEDURE FOR COURTCONNECTED ADR
5.1
5.1.1
Initiation by Parties
Parties to Court-Connected ADR are parties by
themselves or their representatives who have;
a. appeared before a court, and
b. consented to have their dispute settled by ADR.
5.1.2
Initiation by Court
A Court may
a.
Order By Court
Immediately after the parties have consented to have
their dispute settled by ADR, the court shall make an
order specifying
a. that the matter in dispute be settled by ADR,
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
1
2
1
3