Compiled by: Jojo K.S.

Bentsi-Enchill 2021/2022

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GHANA SCHOOL OF LAW

ALTERNATIVE DISPUTE RESOLUTION
KONKI NOTES

EMERGENCE OF ADR IN THE JUSTICE DELIVERY SYSTEM

What is ADR?
Alternative Dispute Resolution (ADR), as the name
suggests, encompasses all the processes that have evolved
over the years as alternatives to litigation, which has been
the established means of resolving disputes.
It refers to the range of processes designed to aid parties in
resolving their disputes without the need for a formal
judicial proceeding.
There are various processes which constitute ADR, and it must be noted that as alternative means
of dispute resolution, they serve as additional means of resolving disputes and not as a substitute
or replacement for litigation.
It must also be noted that as an alternative to litigation/adjudication, ADR generally looks at a
resolution of disputes based on reconciling the interests of the various parties, rather than a formal
determination based on formal rights in litigation. Commented [JE1]: By virtue of law, parties to a dispute
would have certain rights, and the court would make a
So proponents of ADR insist that the pronouncement of a judgement determining who is right and formal pronouncement based on those rights governed by
who is wrong at law may not necessarily result in a resolution satisfactory to the parties. ADR law.

processes therefore seek to find out the real needs and concerns of the parties to the dispute and However, generally, the ADR processes move away from the
try to satisfy these to the greatest extent possible. formal rights based approach and try to reconcile the
interests (i.e. what is it that the parties want?) of the parties
in order to arrive at a win-win situation.

History of ADR generally and in Ghana

ADR emerged in the US about some 45 years ago. It started as a legal movement to address the
problems associated with litigation. According to Nolan-Hayley, Abramson and Chew, “serious
concern about a ‘litigation explosion’ and lack of access to justice, led to a search for alternatives
to the judicial adjudication of disputes.”
ADR, as already established, has been with Ghana and for that matter, Africa, since time
immemorial. The system of litigation, or resolving disputes through the court system, is a legacy
of colonization which found its way into Ghanaian jurisprudence. However, prior to colonization,
we had our own way of settling disputes, as some of the peaceful methods that natives of the then
Gold Coast employed to resolve disputes was through ADR, e.g., customary arbitration, negation

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for settlement, etc. During that time, ADR was evident by the use of a neutral who helped parties
to peacefully resolve their disputes.
Even when the colonizers were still around, these ADR methods continued to be employed by
natives and was given judicial backing.
Post colonization, we continued to practice our indigenous system of resolving disputes, alongside
litigation.
So we have cases like Budu v Ceasar where Ollennu spells out the ingredients of customary
arbitration, and Zogli v Zanyo1 which involved negotiation for settlement.
ADR has received judicial backing in a number of laws:
 Customary arbitration was given statutory backing in the Independence Era. The power of
the chiefs to act extra-judicially in the form of customary arbitration was expressly
preserved in the Courts Act of 1961, Act 81 thus:
“The power of any chief to act extra-judicially as an Arbitrator under customary law in any dispute
in respect of which the parties thereto consent to his so acting is hereby preserved.”
 Section 30 of the Chieftaincy Act, 2008 (Act 759) also vests chiefs with powers to settle
disputes within their jurisdiction through customary arbitration.

 The Arbitration Act No. 38 was passed by Parliament in 1961 to regulate arbitration in
Ghana.

 Section 72 and 73 of the Courts Act require the courts to promote reconciliation and to
encourage and facilitate settlement of disputes in an amicable manner.

 Again, Order 72 of the High Court Civil Procedure Rules 1954 provided the procedure
by which the High Court could refer disputes to arbitration.
Presently, we have the ADR Act of Ghana, 2010, Act 798, the primary legislation which has
given legal backing to ADR as a form of dispute resolution.

1
[1977] 1 GLR 297

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Is there a need for ADR?

Disputes are inevitable in modern societies, and while the law seeks to avoid such disputes, it also
provides different methods for resolving them when they arise. Litigation has over the years, been
the most popular method of resolving disputes.
However, the proponents of ADR make the point that litigation is not the most appropriate means
of resolving certain disputes, as there are some inherent weaknesses and challenges with the court
system. For that reason, they have developed a spectrum/range of processes which are deemed to
be the more appropriate means of resolving certain disputes. These processes are quick,
inexpensive and technicality-free, and have come to be known as ‘alternative dispute resolution
methods’.
Traditionally, these processes operate side by side with the regular courts as alternatives to
litigation .

The nature of the litigation process and its inherent weaknesses

The aim of litigation is to reach a correct decision about the respective rights and liabilities of
parties in a specific situation. The assumption is that there can only be one correct conclusion, not
a range of them.
While litigation is the preferred method of settling disputes, there have been serious challenges
with it, not only in Ghana but across the globe. Over time, it has been discovered that litigation
does not fully address the problem it set out to remedy.
The problems of litigation apply to both the common law which is adversarial in nature, and the
civil law, which is inquisitorial in nature. In both systems, there is a judicial examination of facts. Commented [JE2]: The adversarial system is a procedural
These and others are characteristics of the court system. system where the court acts as a referee between the two
parties who are contesting with each other to put forth a case
before an independent decision maker, whereas the
Then in 1976, the Pound Conference was held, with an aim to consider the then problems of inquisitorial system is a system where the court is actively
American judicial administration and chart a course for improvement. This was spearheaded by involved in proof of facts and the judge conducts a trial,
the efforts of Roscoe Pound, Warren Burger and Frank Sanders. Since there were rising problems determines what questions to ask and defines the scope and
extent of the enquiry.
with litigation, the conference was held to determine other ways of resolving disputes. It was found
that unlike in the field of medicine where there are specialists who attend to particular needs of
patients, when it comes to resolving disputes, there is only one avenue, i.e. the court. Thus, it was
thought that it would be a good idea to open up other doors/avenues for resolving disputes. This is
known as the multi-door concept, whereby litigants with disputes could walk through several
other doors such as negotiation, mediation and arbitration, depending on the nature of the dispute.

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They identified some of the challenges affecting litigation as follows:

1. Delays
Court cases may drag on for several years, such that by the time a final determination is made,
it may no longer be useful to the parties. For example, in personal injury claims, victims may
be deprived of compensation at the time when they need it most.
A number of things, such as the several ladders of appeals in the litigation system, contribute
to this delay.
In Adu v Kyeremeh2, a case which lasted 26 years, Adade J.S.C. noted that “It is a serious
indictment on the administration of justice in this country that a case of such simple dimensions
should take as long as 26 years to see itself through the courts”.
There was also the case of Agyemang, substituted by Banahene & Ors v Anane3, which
took about 40 years to conclude.
Abba v Mframa was another case which took about 12 years to be completed.
2. Cost
Litigation is highly expensive as enormous costs may be incurred, especially when an
unsuccessful party is made to pay costs.
Often times, costs exceed the amount of any award. Even where this is not so, that costs are
often excessive in comparison with the sum in dispute is beyond doubt.
3. Procedural inflexibility
The court system is quite strict on procedure and missing a step in procedure can be fatal to
one’s case.
4. Time consuming
Litigation, and especially preparing for trial, usually consume a great deal of a client’s time
and effort especially in complex business disputes. It may be necessary to attend meetings,
answer telephone enquiries, search for and photocopy documents and do many things which
are, in themselves, unproductive. This can be a distraction from essential business activities.
5. Publicity
There is no privacy and confidentiality as court proceedings are usually open to the public.
Although some are closed, judgements are still written and recorded. Once the matter is
released to the public domain, anything can happen - reputations can be ruined, markets for
products may be destroyed, and many unpleasant effects may flow from the open court
situation.

2
[1987-88] GLR pg 137
3
2013-14 1 SCGLR pg 241

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6. Damages relationships
To sue someone, or have someone sue you, in itself, is an expression of hostility, indicating
that the parties were not able to settle the issue amicably. As the litigation process carries on,
it may tend further damage the relationship between the parties as each side employs
obstructive tactics or there are mutual attacks on credibility and so on. So where for instance,
parties previously enjoyed a mutually beneficial business relationship, such as that of supplier
and customer or landlord and tenant, all this may be ruined by the litigation process.
The aim of each party is to win, and as such, disputants often view themselves as adversaries.
This is because in litigation, one person wins and one party loses. There is no win-win situation.
7. Parties are alienated
Inevitably and progressively, parties lose control of their cases to their lawyers, their
opponents, the litigation process and the judge. They just sit in the court room and have no
idea what is going on as lawyers fight their battles for them, for example, with the mystifying
language used in court. It is only after they leave the court room that perhaps a lawyer explains
what went down to his client.
8. Litigation does not take into account certain factors
Not all disputes can be translated into legal issues that can be decided by the courts.
E.g. the court will not try emotional issues.

Due to these disadvantages of the litigation system, ADR became the new trend, opening up other
means of resolving disputes other than litigation. The ADR processes include:
- Negotiation
- Mediation
- Arbitration
- Hybrid Mechanisms, e.g. Med-Arb, Arb-Med, mini-trial, rent-a-judge, early neutral
evaluation, settlement conference, summary jury trial, etc.
It must be noted that in some countries, e.g. the UK, Arbitration is not considered as a part of the
ADR mechanisms.
These ADR methods have different emphases that make them suitable for particular types of cases.
Some forms such as mediations, are intended to put decision-making power back into the parties’
own hands, where others such as early neutral evaluation, are intended to provide expert input
about the strengths and weaknesses of each side’s case and the likely outcome.
Certain ADR methods are used to affect specific goals for particular cases. For instance, sentencing
circles and family group conferencing are used with the goal of healing harm to the community
caused by juvenile misbehavior. Thus, not every ADR process applies to each situation. It is
important to be able to select the optimal ADR process in a given situation.

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Benefits of ADR processes

These are the benefits that ADR as a whole, offers in general. Later on, we would consider the
individual benefits that specific ADR processes have to offer.

 Privacy
One important advantage of ADR over conventional litigation is privacy. Parties do not risk
the details of the issue being exposed to the public, and as such they are able to avoid
humiliation, embarrassment and so on. Parties feel much more comfortable and will not
withhold valuable information. This is because where the matter is heard in the open, the media
may pick it up and place it in the public domain.

 Expedient
ADR processes are quicker and faster as compared to litigation. There are no unreasonable
delays or several ladders of appeal that slow down the process.
 Parties are involved
ADR empowers the individual. In litigation with its well-structured and inflexible rules of
procedure, the individual hardly has any control. Apart from giving evidence, his voice is never
heard. ADR gives the satisfaction of having been really heard and contributed to a mutually
beneficial outcome.
 Less costly
ADR is generally less costly, and thus offers parties great savings in financial costs. It also
makes justice more accessible to a greater number of people.
 Higher compliance by parties
Since it is a voluntary submission by the parties, there is higher compliance with decisions
reached. ADR induces parties to voluntarily comply with agreements. People who design
solutions to their own conflicts are more satisfied with the outcome than people who have the
solutions forced upon them. They therefore have a stronger commitment to maintaining such
agreements than those in which they have had no say.
 Preserves relationships
ADR is less hostile as compared to litigation as it provides a healthier method for resolving
disputes. People whose conflicts arise within an ongoing relationship such as families,
landlords and tenants, neighbours, and business associates, appreciate techniques which
support the positive maintenance of the relationship and often find that the process itself
teaches them new ways to deal with future conflict and new ways to communicate.

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 Aids in de-congesting the courts

ADR helps decongest the courts enabling Judges to have more time in handling cases, which
are not amenable to ADR and producing better and lasting decisions. It therefore makes the
judiciary efficient.

 Addresses the emotional needs of the parties

ADR enables emotional needs to be expressed i.e. hurts, disappointments, anger, resentments,
misunderstanding, fears, shame, humiliations, are addressed. All this is not generally
accounted for in litigation.
 Procedural flexibility
There are no strict formal procedural requirements which might damage a person’s case if not
followed.

Disadvantages of ADR processes

Again, these are the disadvantages of ADR in general. Later on, we would consider those of
specific ADR processes.

 No binding precedents
ADR cases are unable to form the basis for judicial precedents, and as such parties lack the
protection which precedent may offer.
 No appeal process
The finality and binding nature of some ADR processes can be viewed as a disadvantage
because it may not always please the parties, and the courts will often refuse to review it.

 Not all issues can be resolved by ADR

There are some issued which are the preserve of the court, and as such are not amenable to
ADR processes.
 The absence of procedural protection for the parties
There is limited protection offered to parties since the procedural rules in litigation do not
generally apply.

 Imbalance of power between the parties

This refers to the ability of a strong and powerful party to bully the weaker one into a result
that may not be fair.

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Court-connected ADR
This is simply ADR supervised by the courts.
It is guided by the concept that when parties to a dispute file their case in court, it is because they
want the dispute settled with the help of the court. Therefore, if it is possible for the court to help
the disputing parties settle the dispute by other equally desirable means without trial, whilst
assuring integrity of the process, the court should make it possible for them to do so.
If the court provides a mechanism to the parties to resolve their dispute, and the parties recognize
that the mechanism has integrity, they are willing to submit their dispute to this alternative means.
This provides the court and the parties with all the advantages ADR has to offer.
The legal basis for court-connected ADR is in Sections 72 & 73 of the Courts Act, 1993 (Act
459) which provides that the court may promote reconciliation, encourage and facilitate the
settlement of disputes in an amicable manner.

The ADR Spectrum

ADR refers to several processes for resolving disputes asides litigation. These processes can be
arranged along a spectrum according to the level of control the disputants/parties have over the
process.
Commented [JE3]:
ADR processes may be classified into 2 categories, i.e. non-adjudicative and adjudicative
Non-Adjudicative AKA consensual processes.
processes.
These are dispute resolution processes that do not involve a
The ADR spectrum starts from the non- adjudicative processes, moving on to adjudicative final binding determination by a neutral third party, but
processes. rather involves the parties themselves coming together to
explore mutually acceptable solutions, sometimes with the
At the beginning of the spectrum, the parties are in full control of the process. As we move from assistance of a neutral third party.

negotiation to mediation for instance, we find that the process involves a neutral third party who Examples are negotiation and mediation.
does not have the power to impose a binding decision. By the time arbitration, administrative
Commented [JE4]:
hearing or a trial is reached in the spectrum, a neutral third party makes a binding decision for the These are dispute resolution processes that involve a final
parties. and binding determination by a neutral third party.

These processes in the spectrum are often arranged to correlate with increasing costs and third The parties agree to have their rights adjudicated by a
neutral third party outside of the conventional litigation
party involvement, decreasing control of the parties over the process and usually, increasing process.
likelihood of having the relationship between the disputants deteriorate during and after the
resolution of the dispute Example is arbitration.

Some make the argument that adjudicative processes are

not really part of ADR mechanisms. However, since these
processes operate outside the realm of the courts and are
essentially alternatives for the court system, they fall within
the scope of ADR mechanisms.

Additionally, they are consensual in the sense that recourse

cannot be made to such processes unless the parties are
agreed.

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Some of the primary ADR processes are described below:

 Negotiation: Negotiation is any form of communication between two or more people for
the purpose of arriving at a mutually agreeable solution. In a negotiation, the disputants
may represent themselves or may be represented by a negotiating agent or agents. The
people involved in the negotiation, maintain control over the negotiation process.

 Mediation: Mediation is a non- binding process in which an impartial third party, called
the mediator, facilitates the negotiation process between the disputants. As the mediator
has no decision- making power, the disputants maintain control over the substantive
outcome of the mediation.

 Arbitration: Arbitration is a process in which a neutral third party, or an odd- numbered

panel of neutrals, renders a decision based on the merits of the case. The parties to an
arbitration can maintain some control over the design of the arbitration process. In some
situations, the scope of the rules for the arbitration process are set out by statute or by
contract. In other circumstances, the parties work together to design an arbitration process
which is appropriate to their dispute.

Food for thought

“The traditional method of resolving disputes has always been through the courts and while this
avenue will remain an important and non-controversial root for pursuing the case, it is inevitable
that the recent trends in the justice delivery system will mean that the various means of ADR
techniques are with us to stay”
AND
“Discuss the case for the recent emerging trends in the justice delivery system in the country”

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INTRODUCTION TO CONFLICT, CONFLICT ANALYSIS & TECHNIQUES TO

MANAGING CONFLICT

What is conflict?
Conflict is behavior, conduct or approach that is inconsistent with another person’s goals. It is
based on the incompatibility of goals and arises from opposing behaviour.
Conflict is a sense, whether real or perceived, by one entity that its primary self-interests are being
threatened by another entity. At the most primary level, conflict is a competition of interest
satisfaction.
Real conflict vs Perceived Conflict
Conflict may be real or perceived. When we say it is real, it means the conflict actually exists.
However, conflict may also just be a perception not based on objective reality. Conflicts based on
perception occur normally as a result of three perceptual problems.
The three perceptual problems may lead to interpretations which are totally at variance with the
objective reality, thus leading to conflicts when none ought to exist.
The three perceptual problems are discussed and explained below.
1. Selective attention
This problem arises as a result of the tendency for people to screen most of the information
they are exposed to. It is a cognitive process in which a person attends to one or a few sensory
inputs while ignoring the other ones. The result is that different people exposed to the same
sensory inputs may experience them differently. People focus on what they deem important
and ignore the rest.
2. Selective distortion
This refers to the tendency of people to interpret information to suit what they already believe.
Each person fits incoming information into an existing mindset. It is a tendency to interpret
information in ways which reinforces existing attitudes or beliefs. The process occurs when
people subconsciously make new information fit their old ideas about something.
3. Selective retention
This is the tendency of people to retain only part of the information to which they are exposed.
Usually, people retain only information that supports their attitudes or beliefs. When this
occurs, people will remember more accurately messages that are closer to their interests, values
and beliefs by selecting to keep them in memory and forget the rest.

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Conflict vs Disputes
Although the two terms are often used interchangeably, they are not the same. The key to
identifying the difference between conflict and disputes is to think of conflict as representing a
broad, wider circle of issues, within which a number of disputes may arise.
While disputes can be resolved with ADR processes, conflict is typically managed through
diplomacy (international conflict), management task force (organization) and so on.
Conflict:
The scholar John Burton, defines conflict as a long term disagreement, a problem that runs so deep
that its issues are generally non-negotiable. They are long-term deep rooted problems that involve
seemingly non-negotiable issues and are resistant to resolution. These kind of issues relate to
difference of opinion morals and values etc.
Given that they are seemingly non-negotiable, it is clear that the possibility of resolving such issues
is difficult.
Disputes:
Disputes are short-term disagreements that are relatively easy to resolve. Disputes involve issues
that are negotiable. This means that it is possible to find a solution that at least partially meets the
interests and needs of both sides. Disputes may be resolved by considering and evaluating the
interests of the parties concerned and determining their rights through a reasonable solution.

Conceptual framework for analyzing conflict

Under this framework, conflicts are categorized into 5 main groups based on the causes from which
they emanate.
These are:
 Data Disputes
This relates to information flow. Information is very vital to the creation, management, prevention
or resolution of data conflicts.
If there is a lack of/incomplete information, or even complex technical information, it is likely to
create conflict. Thus, data disputes are often resolved by using information/data. For instance,
conflicts caused by lack of information, can only be resolved or managed by providing the
information which is lacking. Likewise, conflicts caused by complex technical information for
instance can be resolved or managed by providing the disputants with an explanation of the
complex technical information.

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 Value Disputes
Values are the principles or standards of behavior or one’s judgement of what is important in life.
Values may also be explained as important or lasting beliefs or ideals shared by members of a
culture about what is good or bad and desirable or undesirable.
Value Disputes are those that arise from a clash of ideas, beliefs and belief systems. They arise
when people attempt to force their values on others.
Values are normally characterized as either ‘nominal’ or ‘fundamental’.
Fundamental values are those that a group considers to be absolutely essential, and without which
they believe their identity will be lost. Fundamental values are by their nature, so steeped in the
culture and lifestyle of a group that that group is unwilling to compromise on such values. Conflicts
that involve fundamental values are therefore very difficult to resolve and the best approach is one
of conflict management.
A ‘successful resolution’ of a conflict arising from fundamental value disputes is more often than
not a suppression of one party’s fundamental values by the other party. This usually results in a
temporary ‘resolution’ as sooner than later, the dominated party will find a way of asserting its
suppressed fundamental values.
Nominal values on the other hand may be described as goals or principles a group aspires to. Since
these are aspirational, a group may negotiate or may be willing to negotiate on their nominal values
if other factors make the attainment of these goals or aspirations impracticable. A party may be
willing to compromise on its nominal values in order to obtain a resolution of a conflict.
In conflicts arising out of nominal values, one may attempt a resolution since one or all of the
parties may be willing to compromise on their nominal values to achieve a greater goal. In other
words, as opposed to a conflict management approach where the conflict is based on fundamental
disputes, a conflict resolution approach may be attempted when dealing with nominal value
conflicts.
 Relationship Disputes
These are disputes that occur within the context of special relationships. Some of these
relationships are parent and child, husband and wife, labour and management and government and
opposition.
They are fundamentally caused by stereotyping and the expectations that come with these
stereotypes. They may also be caused by strong negative emotions, and misconceptions and the
actions and reactions of people to same.
To deal with relationship disputes, one must be consciously aware of the stereotypes and the false
assumptions that are made of other people based on these stereotypes.

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 Behavioural Disputes
These are caused by clashes or differences in behavioural habits, customs, culture and personality.
Behaviour that is acceptable in one setting is repeated in another setting where it is unacceptable,
most times unconsciously and with no ill motives. It causes people to take offence even if none is
intended. In dealing with behavioural conflicts, a resolution may be achieved by getting the parties
to develop cross-cultural awareness and simply learning to accept that people are different and so
behave differently.
 Structural Disputes
These occur within or between institutions and bureaucracies. These may arise as a result of laws,
policies and regulation. It may also be caused by differences in gender and gender needs.
An example of a structural dispute is the former apartheid laws in South Africa.
To deal with structural disputes, we need to ask and answer a number of questions:
i. Why the structure in question was created in the first place, in other words, why was
the law, policy or regulation passed?
ii. Is the structure still relevant?
a) If it is still relevant, then we need to educate the parties to the dispute on its continued
relevance.
b) If it is no longer relevant, how do we negotiate a change in the law, policy or regulation to
satisfy the parties in the dispute?

Responses to conflict
The reason for categorizing conflicts this way is that the five different categories are each handled
best in a particular way. Similarly, there are five potential ways to react to conflicts effectively
based on several factors. These are the strategies used in resolution of conflicts. They are:
 Avoidance (lose-lose)
This strategy involves totally ignoring the other party by refusing to engage in negotiation or
withdrawing from active negotiation. The Avoidance strategy is best utilized in the situations
where:
- The issues are not important.
- There are more pressing issues to tackle.
- There is no chance of achieving your objectives.
- The potential “aggravation” of negotiating outweighs the benefits.
- People need to cool down and regain their composure.
- Others can resolve the conflict more effectively.
- You need time to collect more information.
- There is a very strong alternative outcome which is available to the avoiding party.
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In the Avoidance strategy, the expectations of the parties on both the outcome and relationship is
very low and therefore the party or parties resolve that pursuing the resolution of the conflict is not
important.

 Accommodation (lose to win)

This typically involves giving the other side everything they want, while expecting little or nothing
in return. In this strategy, the maintenance of a good working relationship is of a higher priority
than the outcome of the process.
Accommodation is best employed when:
- You find out you are wrong.
- You wish to be seen as reasonable.
- The issues are more important to the other party.
- You wish to build “credits” for later issues.
- You wish to minimize your loss when you are in a weak position.
- Harmony and stability are more important.
The Accommodation strategy may be used to encourage a more interdependent relationship or to
cool off hostilities where there is tension in the relationship. It is often recommended as a short-
term strategy.

 Competitive (win-lose)
This involves extending no cooperation to the other side, with all effort of a party expended to
exert gain on their own behalf. Maximum competition is best utilized when:
- Quick, decisive action is vital.
- An important issue requires unpopular action.
- You know you are right.
- The other party will take advantage of your co-operative behaviour.
- There will be no future relationship or that relationship will not be important.
- The other party has a reputation for hard negotiation.
This is a strategy that is frequently used when a party places a higher priority on the outcome of
the process rather than maintaining a good relationship between the parties.
 Collaborative ( win-win)
The collaborator’s approach to conflict is to manage it by maintaining interpersonal relationships
and ensuring that both parties to the conflict achieve their personal goals. It is a win-win approach.
The parties work together to realize the maximization of their interests to the greatest extent
possible. Collaborating is best used when:
- The issues are too important to be compromised.

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- The objective is to integrate different points of view.

- You wish to build or maintain an important relationship.
In the collaborative strategy, the parties are able to satisfy their respective interests optimally and
are therefore willing to abide by the outcome. The willingness to abide by the outcome also directly
results in the maintenance of a good working relationship.
 Compromising (split the difference)
This is seeking the middle ground. It is a win some - lose some approach. In compromising, the
parties work together, but each will be seeking to maximize their own interests. Concessions that
are made, are as a result of rational self-interests rather than seeking to promote the interests or
well-being of the other side.
Compromising is best when:
- Issues are important but you cannot afford to be too controlling.
- The relationship is important but you cannot afford to accommodate.
- Opponents of equal power are committed to mutually exclusive goals.
- You need to achieve temporary settlements to complex issues.
- You need to find an expedient solution within time pressure.
- It is the only alternative to no solution.

Conflict analysis & management (applying the framework)

How then do we manage conflict?
First step is to determine whether the conflict is real or perceived. If the conflict is perceived, then
we deal with it by employing our knowledge of the three perceptual problems. This way, we may
convince the party perceiving the conflict to realize that no conflict exists.
If however, the conflict is real, and one entity’s interests are actually threatened, then we need to
examine the conflict and evaluate same according to the five categories of conflict and ask
ourselves the following questions:
a) What category (or categories) does the conflict fall into?
b) What steps can be taken to resolve the conflict, bearing in mind the type(s) of conflict we are
dealing with?
c) What style will be the best approach given the circumstances?
The key to successfully resolving a conflict therefore lies in:
- Understanding the conceptual framework and response to conflict.
- Identifying and categorizing a conflict into the various categories of disputes
- Adopting the appropriate strategy to resolve the conflict

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NEGOTIATION

What is negotiation?
When we talk of negotiation in ordinary parlance, we can be referring to deal-making or
transactional negotiation (negotiating the terms of a contract or business deal or some other
relationship of a commercial nature), or Dispute-resolution / Conflict-prevention negotiations
(dealing with a dispute that has already arisen or preventing a potential dispute from occurring
within ongoing relationships). Our focus is on the latter.
Negotiation is the first stage of dispute resolution.
It simply means the back and forth communication between parties to a conflict with the ultimate
aim of resolving an existing conflict. Parties engage in a back and forth discussion to try and reach
an agreement by influencing something or somebody, when both sides have interests that are
shared and others that are opposed.
The main aim is to satisfy their interests. Once the parties have their interests satisfied, then the
negotiation mission is accomplished.
Characteristics of negotiation
 The parties by themselves, or by their duly authorized representatives, must engage in
direct communication
 There is no third party neutral or impartial person involved
 The process can be assisted by a lawyer
 Negotiation can be used to settle any dispute, except where that dispute or matter is
proscribed by law.
Types of negotiation
Generally, negotiation falls into one of two categories.
These categories are not easy to define precisely, but can be identified by certain characteristics.
Approaches to negotiation can be classified as the problem solving approach, or competitive
approach. These in turn, take the form of either soft or hard negotiation.
The competitive approach is tough, powerful, bullying and uncompromising, whereas the problem
solving approach is friendly, courteous and concessionary.

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Soft Negotiation (Problem solving approach)

A soft negotiator tries to prevail by being agreeable and being nice to the other party. He avoids
conflicts and detests unpleasant exchanges. He is willing to concede on issues in order to maintain
relationships. The soft negotiator wants to keep peace and readily makes concessions to avoid or
resolve conflict. They are described as ‘cooperative negotiators’.
The negotiator with this orientation is interested in maximizing opportunities for joint/mutual gain,
rather than individual gain. This negotiator views the dispute or transaction as a mutual problem
that has the potential of being resolved to the parties’ mutual satisfaction. The focus of the
negotiation is to explore ways of creating joint value for the mutual benefit of the parties. The goal
of negotiation therefore is viewed as a means of solving the problem rather than winning the
problem and making the other party a loser.

ADVANTAGES DISADVANTAGES
There is a tendency for people to reciprocate Negotiator can easily be taken advantage of
his gesture
Such a person places premium on relationships Failure to get a good deal, as he gives out more
than he should
Where there is a deadlock, the soft negotiator He loses confidence from his constituents
is willing to break the impasse
Disputes are resolved very quickly He yields to pressure
Negotiator builds a good image/reputation He will not negotiate with an aggressive
opponent
He may end up feeling used and abused

Hard Negotiation (Competitive Approach)

The hard negotiator sees conflict as a battle in which the person who takes the most extreme
position and holds outs, fares better. He considers any situation as a contest of will, and adopts a
tough/rigid stance during discussions. He considers his counterparts as adversaries and tries to
achieve his goals through intimidation. He is perceived as dominating, forceful, aggressive, tough,
arrogant and uncooperative. The strategy is to make high demands and offer few concessions.
They use threats, are willing to stretch the facts and will stick doggedly to their positions. They
love to create doubts about the validity of the other side’s position and treat their interests as being
of no consequence.
This category of negotiator engages in negotiation with a view to maximize individual gain. To
achieve this end, the negotiator engages primarily in “positional bargaining”.
Positional bargaining is a negotiation process in which the negotiator adopts a particular position
and advances arguments to support that position, makes some concessions and finally reaches a
solution out of compromise. It is a linear journey from a stated position to a bottom line. There

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leaves very little room for the consideration of the inputs made by the other party as well as for
innovative solutions.

ADVANTAGES DISADVANTAGES
He takes advantage of an indolent person It prevents parties from reaching a mutually
beneficial deal
He gets a good and substantial deal from the They fail to take advantage of a full range of
negotiation options available
He is bold and takes initiative during Has potential of creating misunderstanding
discussions
He gains reputation as a tough negotiator Hard negotiation damages relationships
He does not yield easily Poisons the atmosphere for future relationships
Decisions reached between a hard negotiator
and a soft negotiator are not sustainable

Principled Negotiation
This is described as the optimum approach to negotiation, with the view that one party should not
be weaker than the other. It is also referred to as Interest-based negotiation, an approach in which
the aim of the negotiation process is to maximize the interest satisfaction of both parties as much
as possible.
It is recognized that this is the best approach to negotiation between the two extremes of soft and
hard negotiation. This method of negotiation is based on interest and needs. It decides issues on
their merits rather than through a haggling process. It suggest that you look for mutual gains
whenever possible, and that where your interest conflict, you should insist that the result be based
on some fair standards independent of the will of either party.
It is important to distinguish between interests and positions.
Typically, negotiators engage in positional bargaining – i.e. bargaining over positions, and they
tend to lock themselves into those positions and expend considerable energy defending and
justifying their positions. As more attention is paid to positions, less attention is devoted to meeting
the underlying concerns of the parties that cause them to take those positions in the first place. As
a result, the negotiated agreement usually reflects a mechanical splitting of the final decisions of
both parties rather than a solution carefully crafted to meet the legitimate interest of the parties.
The result is frequently an agreement that is less satisfactory to each side than it could have been.
Positions denote what each party wants, or thinks it wants, from the negotiation. Interests are the
underlying reasons why their demands are important to them. Thus, a position may be a means to
satisfy an interest, but a given position is not necessarily the only, or even the best, way to do that.
Put simply, positions are negotiable; interests are not.

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Positions Interests

What they say they want Why they want it

Positions are surface statements of Interests are a party’s

where a person or organization underlying reasons, values or
stands, and rarely provide insight motivations. Interests explain
into underlying motivations, values why someone takes a certain
or incentives. position.

Interest Example: Union wants

Position Example: Union demands time for workers to retool their
a five-year contract. skills before plant closings are
implemented.

Why use interest based negotiations?

Although positional bargaining may be successful, it is not necessarily efficient and may not result
in a peaceful solution. The question then is, why should we adopt principled negotiation, and
negotiate on interests rather than positions?
1. Arguing over positions is inefficient
When negotiators argue over positions, they tend to start out with an extreme position, making
small concessions grudgingly. Where each decision involves yielding a little to the other side’s
position, feet-dragging, threats to withdraw, stone-walling and other such dilatory tactics are
seen as desirable. In reality, what this actually does is to increase the cost and time of reaching
an agreement as well as the risk that no agreement will be reached at all.
2. Arguing over positions endangers ongoing relationships
Positional bargaining is a contest of wills. Each negotiator asserts what they will and will not
do. Each tries to bend the will of the other. The end result is a strain on the relationship between
the parties.
3. Being unconditionally nice is no answer
In a bid to maintain ongoing relationships, some negotiators tend to be unconditionally nice.
They are generous, they trade concessions easily, they trust the other side and are friendly to
the other side. This may result in giving away concessions on the substance of the matter at
stake that they can ill afford. The end result is what is commonly called “buyer’s remorse”—

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a realization that they have entered into a bad agreement and a resulting reluctance to carry out
their side of the bargain.
The above reasons are why principled negotiation is the optimum approach. Principled negotiators
are presented as being both hard and soft. They are soft when they are dealing with the people in
the negotiation, but they are hard when dealing with the substance of the problem. They treat
people with respect, they are courteous and principled, but they will never concede on the
substance unless the other party can give a good reason why the concession must be made based
on principles.
Characteristics of Principled Negotiation
 It is based on identifying the needs and interests of the parties. This means that whenever
one adopts principled negotiation, the parties would be looking at their needs/interests as
the base of the negotiation.

 Decisions are reached based on merit.

 Parties in negotiation should identify mutual gains whenever it is possible.

 Where the interests of the parties conflict, insist that the result should be based on fair
standards rather than the independent will of the parties.

 It is designed to achieve wise agreement and not based on tricks or the strength of posturing
of the parties.

Pillars of principled negotiation

There are 5 principles that must guide interest based negotiations – that is to say, principled
negotiation is based on 5 pillars. Each principle deals with a basic element of negotiation and
suggests what people should do about it. They are discussed below:

#1 Separate the People from the Problem

Negotiators are human beings, and that means they gave emotions, deeply held values, different
backgrounds and viewpoints. They often have radically different perceptions and have difficulty
communicating clearly. Emotions typically become entangled with the objective merits of the
problem – that is to say, the ‘people problem’ becomes entangled with the real problem. We tend
to treat the people and the problem as one. For example, anger over a situation may lead to
expression of anger towards a person associated with it in your mind. Another reason why
substantive issues become entangled with the people problem is that people draw unfavorable
inferences from comments on the substance, which they then treat as facts about that person’s

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interests and attitudes towards them. Taking positions makes this worse because people’s egos
become identified with their positions.
To deal with these human problems, the principle suggests that before working on the substantive
problem, “the people problem” should be disentangled from the problem and dealt with separately.
The people problem falls into three categories:
THE PERCEPTION PROBLEM
When parties engage in negotiation, they perceive something about the other party they are
negotiating with, that may be true or false, and it becomes a key factor in the negotiation. Conflict
lies not in objective reality but people’s perception. It is ultimately the ‘reality’ as each side sees
it that constitutes the problem in a negotiation. It is important not to confuse your perceptions with
the reality.
To deal with the perception problem, you need to do the following:
 Put yourself in their shoes
Each side in a negotiation may only see the merits of its case, and only the faults of the other
side. The ability to see the situation as the other side sees it is difficult and is one of the most
important skills a negotiator can possess. It is not enough to know they see things differently.
If you want to influence them, you also need to understand empathetically the power of their
point of view and the emotional force with which they believe it. You also need to withhold
judgement while you try on their view, as they probably believe that their views are right as
strongly as you believe yours are.
 Don’t deduce their intention from your fears
Stop putting the worst interpretation on what the other side says or does.

 Discuss each other’s perceptions

As long as negotiators do this in a frank and honest manner without either side blaming the
other for the problem, such a discussion may provide the understanding needed to further the
negotiation.

 Look for opportunities to act inconsistently with their fears

 Give them a stake in the outcome by making sure that they participate in the process
 Make your proposals consistent with their values
Often, in negotiation, people hold out not because a proposal is unacceptable, but because they
want to avoid the appearance of backing down. If a proposal can be presented so it seems a
fair outcome, they may accept it.

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THE EMOTION PROBLEM

People often come to the negotiation table with heightened emotions, which may in turn trigger
similar emotions on the other side. If not handled properly, emotional outbursts may blow up the
negotiation and ruin any chance of resolving the dispute. To prevent this, you need to do the
following:
 Recognize and understand emotions
You need to recognize and understand emotions, both yours and that of the other side. Ask
yourself how you are feeling emotionally and think through the best way to handle these
emotions. Then consider their emotions and prepare to handle their behaviors which will be
the likely consequence by those emotions you have identified.

 Make emotions explicit

Having identified emotions, there is the need to acknowledge them as an important aspect of
the resolution process. Rather than behaving in the normal way in which emotions are deemed
to be a sign of immaturity, you make the emotions you have identified an explicit focus of
discussions early on in the discussion. This not only underscores the seriousness of the
problem, it will also make the negotiation less reactive and more proactive. Freed from the
burden of unexpressed emotions, people are likely to work on the problem.
 Allow the other side to let off steam
People obtain psychological release through the simple process of recounting their grievance.
Affording people the opportunity to let of steam may make it easier to talk rationally later.
Ventilation of emotions is therefore to be encouraged. Listen quietly without responding to
attacks, and encourage the speaker to continue until he/she has said everything he/she wants to
say.

 Do not react to emotional outbursts

Allowing people to vent has great value and therapeutic effect. Therefore, it must be
understood that emotional outbursts are not a personal attack, and you must not treat them as
such and react accordingly. Reacting to such outbursts may lead to arguments which hinder
negotiations.
 Use symbolic gestures
There are symbolic gestures that can be used to diffuse hostile emotional situations. A note of
sympathy, a statement of regret, a visit to a funeral, a speech condemning unacceptable
behavior from a member of your group or a word of apology; all these may be small ways of
diffusing emotions.

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THE COMMUNICATION PROBLEM

Without communication, there is no negotiation. There are three main communication problems:
- Not talking to each other (People break off communication with people with whom they
have a problem)
- Not hearing each other (people often do not pay enough attention to what each other says)
- Misunderstanding (this is when people ascribe different meaning to what each other says.
Where the parties speak different languages or come from different countries, the chance
for misunderstanding is compounded)
To address these problems, the interest-based negotiator must do the following:
 Listen actively and acknowledge what is being said
Listening enables you to understand their perceptions, feel their emotions and hear what they
are trying to say. Active listening improves not only what you hear, but also what they say.
This is because people try to communicate well if they feel that they are being listened to. They
will also feel the satisfaction of being heard and understood. It has been said that the cheapest
concession you can make to the other side, is to make them know that they have been heard.
Having listened carefully, try to relate to them what you have heard and your understanding of
the same so that they can correct any misconceptions. Ask the other party to spell out exactly
what they mean or repeat ideas if they are unclear to you.
 Speak to be understood
Speak with purpose and make every word count.
 Speak about yourself and not them
It is better to describe a problem in terms of its impact on you, rather than in terms of what
they did or why they did so. Discuss the problem in terms of how you feel. This conveys the
same message without provoking a defensive reaction that will prevent them from taking it in.
for example, say “I feel let down”, rather than “You broke your word”.
 Speak for a purpose
Sometimes the problem is not too little communication but too much. When anger and
misperception are high, some thoughts are better left unsaid.

#2 Focus on interest, not positions

The second pillar of principled negotiation is to focus on interests and not positions. Above, we
have already made a distinction between the two.
Most negotiators believe that the conflict is about the different positions that the parties have taken,
and that the goal is to arrive at a compromised position. The truth however is that, the basic
problem in negotiation does not lie in conflicting positions, but rather conflict between each side’s

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needs desires, concerns, fears, what they seek too gain, what they are afraid to lose, among others.
Such desires, needs, concerns are the real interests of the parties. They are the reason the people
have taken the positions they have. In other words, a position is something that you demand. Your
interests are what cause you to make those demands.
Thus, it is clear that the interests of the parties is what defines the problem. So in principled
negotiation, negotiators are advised to focus on the interest that informs the positions. They are
advised to reconcile the differences in their positions rather than expending energy in bargaining
over positions. Reconciling interests rather than positions works for two reasons.
1. For every interest, there usually exist several possible positions that could satisfy it. All too
often, what people do is simply to adopt the first solution that come to their mind and adopt
it as their only position. However, when you look behind opposed positions for the
motivating interests, you can usually find an alternate position which meets not only yours,
but theirs as well.

2. Another reason why reconciling interests rather than compromising between positions also
works well is that behind opposing positions lies shared and compatible interests as well
as conflicting ones. We tend to assume that because the other sides’ positions are opposed
to ours, their interests must also be opposed. But this is not always true. Indeed, in many
negotiations, a careful examination of the underlying interests will reveal the existence of
many more interests that are shared than ones that are opposed.

HOW TO IDENTIFY INTERESTS

Positions are likely to be concrete and made explicit, but the underlying interests are usually
unexpressed, intangible or even deliberately hidden. One way to unearth these interests is to put
yourself in their shoes. Examine each position they take and ask yourself ‘why?’ and ‘why not?’
In the appropriate circumstances, you may put these questions directly to them. The answers to
these questions will unlock what their true interests are.

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You should note that the most powerful interests are the basic human needs. In searching for the
basic interests behind the declared position, look particularly for those bedrock concerns which
motivate all people. If you can take care of such basic needs, you increase the chances of reaching
an agreement.
For an agreement to be reached with a fair
chance of the other side keeping to it,
Abraham Maslow’s theory of needs comes
in useful. He stated that in a hierarchical
order, the basic needs were as follows:
- Basic survival/ physiological needs
- Security and safety needs
- Love and belonging needs.
- Self-esteem needs which includes
seeking the esteem of others, self-
actualization needs, the need to
know and understand, and finally,
aesthetic need
- Self-actualization needs.
This hierarchy of needs should inform a negotiator of his/her needs and interests as well those of
the other party.

HOW TO DISCUSS INTERESTS CONSTRUCTIVELY

 Make your interest come alive.
Be specific about what your interests are and convey this adequately to the other side.

 Acknowledge their interests as part of the problem.

If you want the other side to appreciate your interests, you must begin by showing that you
appreciate theirs. In addition to this, it helps to acknowledge that their interests are part of the
overall problem you are trying to solve.

 Put the problem before your answer.

Rather than proposing a solution (position) and thereafter the reasoning and underlying
interests, first, put out the interest that underlies that position. Then, you go ahead to justify
how your position satisfies the identified interest.

 Be hard on the problem, soft on the people.

Remember to apply all the people problem skills discussed earlier at this stage of the
negotiation while at the same time, advocating forcefully that your interests are important and
must be satisfied.

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#3 Invent options for mutual gain

Although it is valuable to have many options before you decide on which one is the best,
negotiators hardly see things this way. In a dispute, people usually believe they know the right
answer, and that their view should prevail.
In an interest-based negotiation, after identifying the various interests of the parties, the negotiators
will need to fashion out a solution that satisfies the interests identified. In so doing, they will be
well served by inventing creative options that satisfies the varying and competing needs. The way
forward is to invent options for mutual gain.
Before generating options, parties must participate in a brainstorming exercise. This enables the
parties to generate ideas with a view to satisfying the interests identified. The options that are
generated are proposals and not firm offers. It is important not to criticize any option that a party
generates. Another ground rule is that the parties must set aside a time period after generating as
many options as possible, for refining the options that have been generated. As the parties judge
and refine the options, it enables them to have mutual gains. At the same time, this period is when
the parties broaden the options.
There are 4 obstacles that often inhibit the invention of options:
 Premature judgement
If as soon as a party puts up an option, the option is shot down by criticisms, other people will
feel inhibited from suggesting other options. To avoid public criticism, people will rather keep
their options to themselves fearing they will be subjected to the same ridicule that the other
person suffered. This is what happens in most negotiations.
To deal with this problem, separate the act of inventing options from the act of judging them.
Since judgment hinders imagination, separate the creative act from judging them; separate the
process of thinking up possible decisions from the process of selecting among them. Set aside
a time in the negotiation process where all you do is to create a list of options without any
assessment as to how viable they are.

 Searching for a single answer

To most people, a negotiation process is to narrow the gap between two positions. So they see
inventing options as an unnecessary exercise which complicates this simple process. By
focusing on a single best answer, negotiators are likely to miss out on a wiser-decision making
process in which you select from a large number of possible answers.
To resolve this problem, broaden your options. You may approach the problem by looking
through the eyes of different experts and professions. You may also consider the problem from
different viewpoints

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 The assumption of a fixed pie

For negotiators who see the process as a zero-sum gain, there is the assumption of a fixed pie:
the less for you equals the more for me. Any gain of yours therefore represents a loss to me.
For this reason, they fail to see the need for inventing options for mutual gains. This assumption
is rarely true. First, a badly conducted negotiation can leave both parties worse off so at the
very least, there is a shared interest in averting joint loss.
To resolve this problem, parties are advised to identify their shared interests. Find out: do the
parties have a shared interest in preserving the relationship? Are there opportunities for future
cooperation that will be mutually beneficial? Are there common principles that both parties
can respect?
 Thinking that ‘solving their problem is their problem’
This obstacle lies in each party’s concern with only its own immediate interest. For a negotiator
to reach an agreement that meets his own self-interest, he needs to develop a solution which
also appeals to the self-interest of the other.
To overcome this, think of options that makes their decision easy. Think of options that satisfy
your interests as well as their interests substantially. Avoid tabling options which do not accord
with their fundamental values or principles.

#4 Insist on an objective criteria

No negotiation is likely to be efficient or amicable if one party puts their will against the other,
and one has to back down. Principled negotiation thus mandates that parties negotiate on the basis
of objective criteria or standards. This ensures that the resolution of the dispute is fair to both sides.
It takes away the independent will/might of the parties.
Objective criteria are fair standards and fair procedures that all reasonable people can relate to.
Some fair standards which you can make the basis of objective criteria in your negotiations are the
market value of the item in dispute, scientific standards, professional standards, what a court will
decide, moral standards (if the parties have a shared morality), reciprocity and the like.
Fair procedures such as tossing a coin, throwing a dice, drawing lots, one party divides the other
picks first are some of the procedures generally accepted as fair. When these are brought to bear
as the basis of resolving conflicting interests, neither party has to yield to the will of the other.
So for example, in a dispute on custody between a couple that has just dissolved their marriage, a
fair standard to adopt would be to look at what the law says; i.e. precedent as an objective criteria.

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#5 Know your BATNA

BATNA is the acronym for Best Alternative to a Negotiated Agreement. Before you begin a
negotiation, you need to have a backup plan in case you fail to reach an agreement with the other
side. This backup is your BATNA. Your BATNA is what you will get outside the negotiation. It
is what you will get if you leave the negotiation without an agreement.
The objective is to not be bullied into a deal that you do not like, and to ensure that you will not
be worse off.
Your BATNA is a key determinant of your negotiation power. The better your BATNA, the better
the offer the other side must make to entice you to reach an agreement. The weaker your BATNA,
the higher the number of concessions you may have to make in order to reach a negotiated
agreement which is better than your BATNA. Having a clear BATNA helps prevent you from
accepting a deal that you will be better off not taking. Knowing your BATNA protects you from
accepting an agreement that will make you worse off than when you started the negotiations.
Having identified your BATNA, it may be useful to do two things:
1. Determine your breakoff point. This is the worst agreement you will be willing to accept before
ending the negotiations and resorting to your BATNA.
2. Develop your BATNA if you can, between the preparation time and the negotiation. Springing
a surprise on the other side in terms of your improved BATNA can work very well.

Approaching complex negotiations or multi-party negotiations

Negotiation ideally is between two parties or two sides. However, we
have what is known as multi-party negotiation which is when different
and distinct entities who share a common interest band together to
negotiate.
Here, we may have two larger groups at both sides of the negotiation
table alright, but within each group are subsets of distinct entities
banding together for joint action.
So multiparty negotiation is a temporary alliance of distinct parties, persons or states even, for
joint action. It is also described as a body formed by coalescing of originally distinct elements to
fight a common cause.
So parties with common interests with others will form teams, interest groupings or coalitions, and
this becomes an organizational force formed around mutually held interests.
The questions that will inform an organizational force/coalition are 2-fold:
1. Are there any other parties with whom I have a common interest?
2. Are the interests so strong or numerous that it would be better to work together as one
entity for the for the mutual satisfaction of all parties?

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The rationale for an organizational force is that negotiations become efficient, and increases the
parties’ potential within a coalition.
Multi-party negotiation typically occurs within the context of international negotiation between
states. In the process of negotiation between countries, or international entities, one nation often
needs to build a coalition with others to achieve its goals. The parties to the coalition do not have
necessarily the same interests, priorities, or values, but have some similar objectives.

UNIQUE ATTRIBUTES OF MULTI-PARTY NEGOTIATIONS

Multi-party negotiations are similar to two-party negotiations in the sense that parties are generally
trying to reach an agreement that leaves them better off, and that the basic principles of interest-
based negotiation will still apply.
However, the differences between two-party negotiations and multiparty negotiations, which make
multiparty negotiations more complex, challenging, and difficult to manage, are as follows:
- Multiparty negotiations have more negotiators at the table
- With multiparty negotiations, there are more issues, more perspectives on issues, and more
information introduced.
- The social environment changes from a one-on-one dialogue to a small-group discussion
- More complex than two-party negotiations in that the process they have to follow is more
complicated
- Possibility for role confusion (am I the leader?, agent?, facilitator?, etc.)

HOW DO YOU DETERMINE COALITIONS?

Coalitions are temporary subsets of a larger group that band together to advance a common
purpose.
In forming a coalition, or considering parties to form a coalition, you will have to consider the
organizational structure of the parties, i.e. whether that particular entity is an Association, informal
organization, corporation, government agency, etc.
It is important to know the structure because you need to know and understand how decisions are
taken in the organization, before you form a coalition.
Decision-making within an organization takes several forms, and is dependent on the particular
structure of that entity. It is also important to determine if the negotiator is the head of the
organization. If he is not the head, are there leaders or other opinion holders apart from him? Are
decisions made democratically within that organization, or by a Board, Committee or Individual?
A representative negotiating on behalf of an organization will have their own negotiation process
to go through constantly during the course of negotiations. Superiors or executive committees will
have to be consulted. They are likely to have their own discussions, with continuing instructions
and direction given to their negotiator. While a table representative may have the authority to

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enter into certain agreements resolving certain issues, they will have to obtain new authority in
other to agree to matters outside of their previous instructions. Negotiations are dynamic, things
change, new information is developed, and proposals are often worked out that are very different
from those put forward at the beginning of negotiation. An aware negotiator will allow their
counterpart to complete their internal organizational bargaining.

WHAT HAPPENS WITHIN THE COALITION (NEGOTIATION WITHIN THE COALITION)

First of all, each organization comes to the negotiation table with its own internal dynamics, and
the internal dynamics must be accounted for within the group.
The negotiation team must be formed, and this is also done by a negotiation process within the
coalition. All interests of the various parties must be aired and taken into account, because the
ultimate aim of a coalition is to build consensus for a strong team to negotiate.
The coalition should reach general agreement on the most important issues for each member of
the coalition.
HOW DO YOU ACHIEVE CONSENSUS BUILDING WITHIN THE TEAM?
In multiparty negotiations, we do not ascribe to majority rule. You must attain consensus, as
opposed to majority rule. For individuals and their constituent organizations to commit to
consensus, their needs and interests must be met.
“Consensus building” relates to a decision and agreement reached by all the identified parties who
have a stake in the outcome and decision. Through this process, the stakeholders create new and
more efficient options to resolve the issue at hand.
Consensus building is a process that seeks a unanimous agreement over one or more disputed
subjects. It is an effort to bring together groups who are stakeholders in an open controversy on a
basic policy issue and priorities. It is an effort to arrive at decisions in which the interests (or part
of them) of all the parties involved are met. All the interested parties have to participate on a
voluntarily basis, be supportive of the process, and make it work.
Consensus ensures that all coalition members have their needs and interests satisfied since each
member is considered important.
It also ensures that members have equity in the position taken by the team, and that increases
commitment, because a team held together by consensus will be stronger.
Consensus-building however, can be time-consuming since each member must fully present its
side/position and reasons behind those positions. It becomes even more time-consuming when the
various constituent heads need to consult their constituents for fresh mandates in order to complete
the negotiation process.
In order to attain consensus building, everyone must be given a chance to speak. Do not reject
ideas during brainstorming.

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It is important to watch out for behaviours of some members that might be inconsistent with the
view of the team. You need to draw out their objections/reasons for their opposing views.
While there may be uneven levels of interest satisfaction among members, ensure that each team
member’s organization obtains sufficient interest satisfaction to maintain commitment to the
coalition and the consensus.
When there are unexpected objections or proposals in the coalition, the team should retreat for a
private discussion known as caucus. This is retreatment into a private meeting to discuss
unexpected objections or proposals that come up during multi-party negotiations.
The benefits of the caucus are:
- It allows the team to monitor its own behavior at the negotiating table to ascertain whether
they are maintaining consensus
- It allows the team to assess whether they are on the right track
- It allows short breaks for members to refresh when matters become tedious/hot
- It allows for parties to reevaluate their position and discuss new matters raised in the
negotiation
TIPS FOR NEGOTIATORS IN MULTI-PARTY NEGOTIATIONS
 Attitude is important. Assume a cooperative sense of power so that all parties can negotiate
from a position of strength.
 People support what they help to create. You have to be receptive to ideas of other parties,
and include their suggestions as much as possible. When that happens, people are satisfied.
 Show respect for other people’s dignity and professionalism.
 Act rather than react. Your statements have value so do not relegate them to the status of
simply being reactionary.
 Shift the focus of the discussion from defeating each other to defeating mutual problems.
 Remain cool and calm. Getting angry/upset does not resolve conflict.
 Stick to the issue at hand. Do not refer to past conflict.
 Do not be judgmental.
 Stick to the facts and restate your position.
 Try to be objective.
 Don’t take things personally.
 Keep things in perspective. Use the time to educate others on your point of view.
 Try not to be defensive.
 If you cannot make progress on an issue, move to another you can have a resolution on.
 Never make personal attacks, because it can create long lasting scars. It may also end
communication, and where there is no communication, there is no negotiation.
 Maintain some sense of humor.
 If you feel you are losing control, take a short break.
 Just because you understand a person in negotiation does not necessarily mean you agree.

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MEDIATION

What is mediation?
Mediation is another of the methods of
alternative dispute resolution (ADR) available
to parties.
The word mediation originates from the latin
verb ‘mediāre’, meaning to heal. The major
aim of mediation is to heal relationships
between persons in dispute.
Mediation is essentially a negotiation facilitated by a neutral third party, i.e. the mediator. Thus, it Commented [JE5]:
is sometimes referred to as ‘assisted negotiation’. It is a facilitative process in which the disputing The mediator assists the parties to negotiate their own
settlement.
parties work with a mediator, to resolve their disputes.
The mediator facilitates the resolution of the parties' disputes by supervising the exchange of
information and the bargaining process. The mediator helps the parties find common ground and
deal with unrealistic expectations. He or she may also offer creative solutions and assist in drafting
a final settlement, but it is important to note that the mediator/ third-party neutral, has no authority
to make decisions for the parties.
Unlike the litigation process, where a neutral third party (usually a judge) imposes a decision over
the matter, the parties and their mediator ordinarily control the mediation process, deciding when
and where the mediation takes place, who will be present, how the mediation will be paid for, and
how the mediator will interact with the parties.

Principles of Mediation
1. Mediation is voluntary
Mediation is voluntary in several aspects.
First, a party is free to decide whether or not to adopt mediation as a means of resolving a dispute.
A person therefore cannot be mandated to choose mediation as a means of dispute resolution.
Secondly, it is the parties who choose their mediator. A party must therefore voluntarily submit to
the jurisdiction of a particular mediator.
Thirdly, a party may also withdraw from the mediation process at any time before an agreement is
reached.

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Section 63(1) of the ADR Act provides that the submission of disputes to mediation should be
with the consent of the parties to the dispute. Where one party invites another to submit a dispute
to mediation, the failure by the invited party to accept the invitation is considered to be a rejection
of the invitation to mediation.
Under Section 64 of the ADR Act, if there is an action pending in court, and the court is of the
view that mediation will facilitate the resolution of the matter or a part of the matter in dispute,
then the court may at any stage in the proceedings, refer the matter or that part of the matter to
mediation. Even then, mediation is still voluntary as a party cannot be compelled to take a decision
or settle at mediation.
2. Mediation is private and confidential
There are several aspects of the private and confidential nature of mediation.
First, as between the parties, there is generally an agreement to keep all matters disclosed in the
mediation private and confidential. Typically, the parties will sign a confidentiality agreement
which will be binding on them to that effect.
Secondly, the matters which are disclosed to the mediator during a caucus are also confidential
and are not to be disclosed to the other party except with the express consent of the caucusing
party.
The third aspect of confidentiality in mediation relates to the mediator himself. He is bound to
keep confidential matters disclosed to him or her by the parties. To that extent, the parties may not
present him as a witness in any arbitral or judicial proceedings arising out of or in connection with
the dispute mediated upon. Additionally, he is precluded from acting as an arbitrator or a
representative or counsel, for either of the parties in any judicial or arbitral proceedings in respect
of a dispute that was the subject matter of the dispute mediated upon.
The fourth aspect of confidentiality in mediation relates to the evidence, whether testamentary or
documentary, which are adduced in the mediation proceedings. These are also generally
confidential and cannot be introduced as evidence in arbitral or judicial proceedings whether or
not the proceedings relate to the dispute that is the subject matter of the mediation proceedings.
Mediation is private in the sense that only parties to the dispute can attend the mediation
proceedings. Except where the parties agree and the mediator consents, a person who is not a party
to the mediation shall not attend a mediation session.

3. Mediation is conducted without prejudice to parties rights and liabilities.

In mediation proceedings, views expressed and admissions made will have no effect unless and
until the parties finally sign a mediation agreement.
Unless that occurs, the parties’ rights and liabilities will remain exactly as they were before the
mediation process was started and such views and admissions cannot be used to the detriment of

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a party. Because mediation discussions are conducted without prejudice, even if the information
were to be disclosed it will have no effect at law.

Advantages of mediation
Parties opt for mediation for a number of reasons;
1. Privacy and confidentiality
Privacy of the matter remains intact. Matters that are discussed during mediation are not to be
disclosed without the consent of the parties involved. Matters that are discussed are without
prejudice, meaning that a party cannot rely on a matter that was raised during mediation as part
of his case in court.
2. High rate of compliance
The outcome of mediation remains in the parties own hands. The mediator is neither a judge
nor an arbitrator. The mediator does not hand down a judgement or award. He only assists the
parties to come up with their own resolution.
Because decisions are not imposed on the parties, but they reach their own resolutions, there
is a higher rate of compliance with the decisions reached by the parties.
3. Procedural flexibility
Procedures are relaxed, informal and flexible, giving parties the best chance to speak and be
heard by the other side.
4. Less costly
Mediation is generally less expensive as compared to litigation. Unlike the court system where
parties have to incur heavy expenses such as filing fees and so on, with mediation, costs are
usually reduced.
5. Expeditious
Mediation provides a more timely way of resolving disputes. Cases are disposed of quickly
unlike in the court system which has several ladders of appeals and may have judges working
on several cases such that they cannot immediately deal with and dispose of.
6. Preservation of relationships
Mediation seeks to mend/heal the relationship between the parties, which is especially
important where the relationship will have to survive the negotiation
7. Non-adversarial
With mediation, parties do not see themselves as adversaries.
8. Clear identification of issues

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The mediator or third-party neutral is able to see the issues clearly and address areas of
misunderstanding. Creative options for settlement are often identified.
9. De-congestion of the courts
Mediation reduces the backlog of cases in court.
10. Extra-legal issues are covered
Mediation covers both legal and extra-legal matters that may not be determined judicially by
mainstream court processes. It allows the parties to focus on the underlying circumstances that
contributed to the dispute, rather than on narrow legal issues.

Disadvantages of Mediation
The following are some drawbacks of mediation;
1. Parties can walk away at anytime
2. No benefit of precedent
3. Absence of procedural protection
4. Difficulty in measuring objectiveness of decisions reached
5. Mediation can not resolve all matters and may not be appropriate for all disputes

The Power/Authority of a Mediator

The mediator has no legal power to render a judgement or award. His role in the mediation is to
simply assist the parties to reach a mutually beneficial solution.
The power and authority of the mediator is limited to that which is given to him by the parties.

Qualities of a Mediator
 Understanding: The ability to understand with sensitivity the often complex issues, and
the concerns and aspirations of the parties, both explicit and implicit.

 Judgement: A sound judgement, a judicious and rational approach and shrewd common
sense.

 Intuition: Ability to sense information without any rationalisation, obtained through

perceptiveness to verbal and other signals received.

 Creativity: A creative and inventive response to the problems of the case, generating
options and encouraging the parties to explore ideas.

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 Trustworthiness: Integrity coupled with a sense that trust can be reposed in the mediator.

 Authority: A firmness of touch in managing the process effectively and constructively.

 Empathy: An ability to relate in a sympathetic way to the parties and to reflect an

awareness of and respect for their concerns.

 Constructiveness: A practical turn of mind that sees positive possibilities and can motivate
the parties to deal constructively with settlement options.

 Flexibility: An ability to cope with unusual situation, ideas and solutions, and with rapidly
varying circumstances.

 Independence: This includes an ability to work autonomously, without support or

feedback, and to maintain a neutral and independent stance.

Role of the Mediator

The role of the mediator is demonstrated below:
 Facilitator
Facilitation is a substantive stage of the process by which the mediator helps the parties to
communicate either directly in joint sessions, or indirectly by means of separate meetings
known as ‘caucusing’. Under Section 74(2) of Act 798, a mediator may conduct joint or
separate meetings with the parties and make suggestions to facilitate settlement.
The mediator facilitates the process by keeping discussions moving and directing areas of
conflict so that they become an impetus for moving rather than stalling the process.
As part of the facilitative role, the mediator does not make recommendations, nor give his own
advice/opinions as to the outcome of the case. He would also not predict what a court will
decide as to the outcome of the dispute.
 Opener of channels of communication
When parties are disputing, they may likely not be talking to each other. It is the mediator who
intervenes to re-establish communication between the parties, thus removing all the wedges
that disrupt communication.
Parties may be much more ready to talk to the mediator than the other party, and gradually the
mediator will get the parties to speak more directly with one another.
 Translator and transmitter of information
The role of the mediator is to interpret concerns, relay information between the parties, frame
issues, and define the problems.

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Parties engaged in a dispute may be talking but not ‘hearing/understanding’ the other side.
Because of emotional factors that may blind them, parties may have different perceptions or
place different meaning on the things communicated by the other party, such that although they
are hearing what the party is saying, they are understanding differently.
Here the role of the mediator is to transmit new information or translate the meaning of
information into new terms. Both functions are important. This role enables parties to
understand what is being communicated.
 Distinguishing interests from positions
The mediator will help parties distinguish their true underlying needs (interests) from their
original desires (positions).
Interests are the things one cares about, his needs, and they are the underlying factors for the
position that a person takes.
Positions are based on legal rights, and behind them are the underlying interests.
Where the interests overlap it is the mediator who will help the parties to determine their
priorities with a view to resolving the dispute. In trying to separate interests from positions,
the mediator will inquire into why a party wants something or has taken a particular stance in
the dispute.
 Assists parties in generating options
Although it is not necessarily the mediator’s job to create solutions, mediators should be
prepared to help parties generate and articulate as many realistic options for settlement as
possible.
 Agent of reality
Parties bargaining positions are sometimes based on unrealistic ideas about practical matters,
external forces or the role of other important players. Mediators can carefully assist parties to
assess how realistic their options are, in order to change the tone of negotiations. In addition,
the mediator’s job occasionally is to help the parties consider what will happen if they choose
not to resolve their dispute in mediation.
 Conflict Assessor
A mediator must attempt to understand as much as of the conflict as possible. In the role of a
conflict assessor, the mediator will examine and analyze the dispute from the point of view of
all the disputants.
 Impartial convenor
Being a neutral involved in a facilitating a negotiation process the mediator is also an impartial
convenor. The mediator will help establish a positive resolution seeking atmosphere and set
the tone for the process. The mediator will help establish the ground roles which can led to
procedural agreements and other agreements. The mediator will help maintain civility between
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the parties and work to keep the process going and keep the parties at it until finally and
agreement is reached if agreement is possible.

 Expander of resources
A mediator helps the parties to expand resources by assisting the parties find the information
they need to make intelligent decisions. The mediator may refer the parties to outside sources
such as a valuer, planner, surveyor etc.
 Obtain closure
The mediator will assist the parties to obtain closure. With the first procedural agreements, the
agreement to mediate, and continuing with an entire series of small agreements during the
course of the mediation, closure on all of the issues is the goal. Parties must understand the
terms of agreement that is actually reached, and the mediator should be confident that the
parties are able to perform as the agreement stipulates. Mere closure is not sufficient;
agreements need to be durable and long lasting. It does parties no good if the agreement is
breached once it is implemented. Parties should have long-term satisfaction with the settlement
and the mediation process.
 Guard the mediation process
A mediator will guard the mediation process. Mediation is a very powerful device with direct
effect upon the lives of human beings. It is an ethical process with its own set of difficulties
and complexities. Mediators must not only guard their neutrality, but also insure that mediation
is not abused or used to oppress. The ethical construct of mediation needs to be observed and
respected by the mediator is that the process actually serves the parties. The mediator is a
guardian of this process.

Stages of Mediation
Many people seem to think that mediation is an informal process in which a friendly mediator
chats with the disputing parties until they suddenly drop their hostilities and work together for the
common good. However, it does not work that way.
Mediation is a step by step process, a multi-stage process designed to get results. It is less formal
than a trial or arbitration, but there are distinct stages to the mediation process that account for the
system's high rate of success
The stages are set out below:

 Step 1: The Setting

This involves setting up the place/venue for the mediation. A convenient venue must be chosen
and agreed to by the parties.

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The seating arrangement must also be considered. The distance between the parties should help
them feel connected yet non-intrusive into personal spaces, hence making it conducive for
discussions to occur. Similarly, the mediator’s seat should be placed at a position that
reinforces their neutral role in the discussions. The seating arrangement at the first mediation
session is therefore very important.
The mediator can set the tone of a mediation before the parties arrive. The mediator can ensure
that the seating arrangement is appropriate by checking the mediation room before the parties
arrive and then receiving the parties as they enter the room and ushering them to their seats.
This further reduces the awkwardness a party may face in deciding where to sit and saves them
from possible embarrassment of shifting sitting positions.
Effort should also be taken to make the parties feel comfortable. An extra table can be provided
with water and snacks, tissues, etc., to make the parties comfortable.

 Step 2: Introduction (Opening Statement)

The next stage is the introduction, and the objective is to establish a comfortable environment,
orient the parties to the mediation process, explain the entire process to the parties so that they
know what to expect from the session, and instill trust. The mediator begins with an opening
statement.
In the opening statement, the mediator will touch on the following:
- Welcoming the parties
- Introducing himself, the parties and their representatives if any
- Commending the parties on their decision and agreement to mediation
- Partial disclaimer that he is not a judge, and that parties will decide the outcome
- Statement of impartiality and neutrality
- Clarifying and explaining the role of the mediator (mediator controls the process, but
parties control the outcome), the goal of the mediation process and its voluntary nature
- Explanation of the mediation process
- Explanation of the concept of the caucus
- Description of logistics, such as time schedule.
- Definition of the parameters of confidentiality of the process.
- Explain that the final agreement reached must be written and signed by the parties and
mediator
- Explain that parties have the right to a caucus
- Answering any questions the parties might have.

 Step 3: Disputants tell their story

This stage allows the parties to share their side of the story without interruptions, and to explore
the issues and feelings surrounding the dispute. This is the communication phase, and parties
talk about what happened and the effect it had on them and how they feel about it.

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Parties get to bring out the relevant information and issues and to discuss the impact of what
has happened. The mediator gathers information on the dispute, and this gives clarity to the
parties as they listen. He is identifying the positions and the interests of the parties.
Here, the mediator must ensure agreement on who speaks first, and listen attentively as the
stories are told. It is usually the person who filed the complaint that begins.
The mediator takes notes and jots down salient points. These notes are confidential and are
normally destroyed at the end of the mediation process in the presence of the parties.

 Step 4: Joint Discussion

At this stage, the goal is to develop mutual understanding, set the stage for problem solving by
clearly naming the issues to be resolved, and to focus the attention of the parties on mutual
interests and away from positions.
For the mediator, it is about helping the parties let go of counterproductive positions and
emotions, take stock of possibilities, search for available resources and solutions and discover
mutually benefitting options.
This can be done by:
- Listing and prioritizing the issues
- Framing the issues to create acceptance and not resistance
- Drawing out underlying interests
- Looking for common ground between the parties
- Promoting dialogue among the parties.

 Step 5: Search for a Solution

Here, the mediator is looking for agreement and to promote effective communication between
the parties. They would brainstorm options and establish objective criteria for evaluating them.
They would select workable and mutually acceptable options for adoption, and draft these
selected options into an agreement. This is known as the Settlement Agreement.
To go about this, they may go by the following method:
- Select items from the agenda.
- All solutions must come from the parties and not the mediator.
- Consider all suggested options, judge options with the standard criteria established
- There should no criticism of options suggested
- Narrow options by merging ideas, building on ideas etc.
- Negotiate in good faith the specifics of each option selected as solution - what, how, when,
how much?

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The Agreement must resolve the immediate dispute by addressing all issues raised by the
parties. The Agreement should also strive to prevent similar or related disputes from arising in
the future.

 Step 6: Finalising the Agreement

This stage is to clarify and write the Agreement. The mediator will supervise the signed
Agreement.
In doing so;
- Use plain and simple language
- Identify parties and representatives or witnesses by their full names
- Specify dates
- Specify method of payment if any, or any other activity
- List each provision separately
- Omit any mention of blame, fault or guilt
- Do not involve third parties on payment implementation
- Include the parties’ intentions
- Check for the three satisfactions (Simplicity, Fairness, and Acceptability)

 Step 7: Closure
This is the final stage of the mediation process. The mediator will thank and congratulate the
parties on their success, or their attempt at mediation if no solution is reached. He will then
distribute copies of the Agreement, or refer the parties back to the appointing authority if no
solution is reached.
If there was no agreement, the mediator should maintain a positive attitude, highlighting the
progress made and encouraging the parties to continue talking.
The mediator will also educate and encourage the parties on using mediation in the future if
other disagreements occur.
These are the 7 stages of mediation. These stages in the process of the mediation are there for
carrying out the mediation in the smooth manner. If the stages are not followed properly, then it
becomes difficult for the mediator and parties to come up with a successful settlement.
It must be noted that under Section 80 of Act 798, there are different ways a mediation comes to
an end;
- When the parties execute a Settlement Agreement
- When the mediator terminates the proceedings for non-payment of a deposit under Section
88
- When after consultation with the parties, the mediator makes a declaration to the effect that
the mediation is terminated

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- When the parties jointly address a declaration to the mediator to the effect that the
mediation is terminated
- When a party makes a declaration to the mediator and the other party to the effect that the
mediation is terminated

A closer look at the Opening Statement

As indicated earlier, the mediation process begins with an opening statement by the mediator.
Below, the content of the opening statement is considered in more detail:
 Introduction of the Mediator and Parties
First, the mediator introduces himself or herself and the parties, and explains how he or she
became the mediator in this negotiation – for instance;
“Good morning, my name is Jojo Bentsi-Enchill and I have been asked to be your mediator
and to assist you in discussing issues that have brought you to mediation. I work as a mediator
and have a background in helping people work out their own solutions to situations they would
like to change.”
 Commending the parties on their willingness to cooperate
The mediator should commend the willingness of the parties to cooperate and to try mediation
to settle their differences;
“I would like to congratulate you both for coming here today and trying to negotiate your own
agreement to some issues which may have been hard in the past to discuss. It is an affirmative
indication on your part that you want to take responsibility for making your own decisions.”
 Definition of the roles
The mediator should define mediation and the mediator’s role in dispute resolution. This
should cover;
- A brief description of what the parties will do during the next period of time
- What a mediator is
- What the mediator can do for the parties, and
- The potential outcome of mediation.
“During the next (specified period of time) you will be engaging in negotiations and searching
for a joint solution that will meet your needs and satisfy your interests. My role as mediator
will be to help you identify problems or issues that you want to talk about, help you clarify
needs that must be met by a solution, assist you in developing a problem-solving process that
will enable you to reach your goals, and keep you focused and on the right track.”
The mediator should describe his or her authority relationship with the disputants;

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“As I told each of you previously, mediation is a voluntary process. You are here because you
want to see if you can find solution to issues that divide you. My role is to assist you in doing
this. I do not have the power to, nor will I attempt to, make decisions for you. My role is to
advise you on procedure, and on how you might best negotiate. If you reach an agreement, we
(or I) will write it down in the form of a memorandum of understanding. I you do not reach a
settlement; you are free to pursue other means of dispute resolution that you feel are
appropriate. You do not lose any rights to go to court if you use mediation and are unable to
reach an agreement.”
 Statement of impartiality and neutrality
The mediator should explain that he or she is impartial in his or her views and neutral in his or
her relationship to the parties. This neutral role and impartiality would not be affected by the
fact that at times the mediator may need to spend more time with one than with another during
caucus.
“Before proceeding, I would like to clarify both my position on the issues at hand and what
my relationship has been with both of you. During this mediation, I will be impartial in dealing
with the substantive issues at hand. I do not have any preconceived biases towards any one of
you over the other. If at any time you feel that I am acting in an un-neutral manner, please call
my attention on my behaviour. I will try to change it. If at any time you feel that I am not able
to remain impartial and am unable to assist you, you may cease negotiations, find another
mediator, or pursue another means of settlement.”
In claiming impartiality and neutrality toward issues and the parties, a mediator should disclose
any relationship with one or more disputants that might influence his or her behaviour or raise
a question in the minds of the disputants as to whether the mediator can in fact remain impartial
while assisting in discussions of these particular issues.
 Description of Mediation procedures
The mediator should describe the procedures to be followed. The mediator should clearly
explain the stages of the problem-solving process and should take care not to appear as an
authority figure toward the disputants. It is their process, not the mediator’s.
“At this time, I would like to briefly describe the process that I propose you follow to begin the
session. Both of you have a significant amount of information about the problems you are
dealing with. Although I have read the statement each of you presented about this situation, I
do not have the detailed understanding that each of you does. I suggest that we begin the
discussion today with a brief description from each of you of how you see the situation that
brought you to mediation. This will educate both you and me about the issues and give us a
common perception of the problem.
Each of you will have a chance, roughly (specify time) minutes, to present how you see the
problem. I request that you do not interrupt the other while he or she is explaining a viewpoint,
and that you hold your questions until the end of the presentation. A pencil and a pad have

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been provided for each of you to note observations or question so that they do not get lost prior
to the question-and-answer time.
During your presentations, I may ask some clarifying questions or probe your description so
that I can gain a greater understanding of how you perceive the situation. My probing is not
to put you on the spot, but rather to broaden the general understanding of the problem. At the
end of each of your presentations, there will be a time for the other party (or parties, or give
name) to ask question of clarification. This is not a time to debate the issues, but to clarify
issues and perceptions about the problem(s) at hand.
At the end of the presentation and questions, I will turn to the other (or next) person (or party)
to repeat the process until a representative of each view has had an opportunity to speak. At
this point, we will clearly identify the issues that you would like to discuss in more depth,
identify the interests that you would like to have satisfied, generate some potential solutions,
and assess whether one or more of these alternatives will meet your needs.”
 Explanation of caucus
This is a technique that is often useful in breaking deadlocks during a mediation. It is a
confidential, private meeting held by the mediator with individual parties or a brief private
meeting of a negotiation team conducted during bargaining.
The mediator should explain the procedure for conducting separate meetings, known as
Caucusing and special provision regarding confidentiality of matters discussed during those
private sessions, and the fact that nothing told by either party to the mediator in the separate
meetings will be disclosed by the mediator to the other party without authority.
“There may be a need, some time in the course of our meetings, for each of you to take some
time out and meet with other members of your group (if it is a group dispute) or meet with me
as a mediator. The need for this type of break or meeting is not unusual. It allows you time to
reflect on alternatives or proposals, gather your facts to develop new settlement options, or
reach a consensus within your group (if applicable). At times, I may call such a meeting, but
you may initiate them also. If I call a separate meeting, it is not to make a deal, but to explore
options that might be more comfortable for you to discuss in private. What is discussed in these
separate meetings will be considered by me to be confidential. I will not reveal what we have
talked about with the other party (or parties) unless you instruct me to do so.”
Caucusing provides the following advantages:
- Gaining certain knowledge or facts from these meetings, a mediator can selectively use
the information learned from each side.
- Reduce the hostility between the parties and help them engage in a meaningful dialogue on
the issues at hand.
- Communicate positions or proposals in understandable or more palatable terms.
- Probe and uncover additional facts and the real interest of parties
- Narrow the issues and each party’s position and deflate extreme demands

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- Useful to help a party assess the strengths and weaknesses of a case and evaluate the best
options open to that party
- Can be used to provide explanation and clarifications about the mediation process

 Description of logistics
The mediator should now describe any relevant logistics: time schedule for the entire process
length of session, and note taking. The mediator often describes how much time he or she
estimates will be necessary to settle the dispute.

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VICTIM OFFENDER MEDIATION (RESTORATIVE JUSTICE)

Restorative justice is an approach to justice in which one of

the responses to a crime is to organize a meeting between the
victim and the offender, sometimes with representatives of the
wider community.
The goal is for them to share their experience of what
happened, to discuss who was harmed by the crime and how,
and to create a consensus for what the offender can do to repair
the harm from the offense. This may include a payment of
money by the offender to the victim, apologies and other
amends, as well as other actions to compensate those affected
and to prevent the offender from causing future harm.
A restorative justice program aims to get offenders to take responsibility for their actions, to
understand the harm they have caused, to give them an opportunity to redeem themselves and to
discourage them from causing further harm. For victims, its goal is to give them an active role in
the process and to reduce feelings of anxiety and powerlessness.
Restorative justice is founded on an alternative theory to the traditional methods of justice, which
often focuses on retribution. Traditionally, criminal justice systems are primarily offender-driven,
with a retributive "trail 'em, nail 'em, and jail 'em" perspective that views crime as an offense
against the State and offers little help to crime victims. Restorative justice, however, provides a
very different framework for understanding and responding to crime and victimization. Restorative
justice programs can complement traditional methods.
Victim-offender mediation is one of the popular processes under Restorative Justice. In essence,
it is part of ADR but it takes the form of mediation, and is used to settle some types of criminal
cases without having to fully try or hear them in court.
It is a process that provides interested victims the opportunity to meet their offenders in a safe and
structured setting. The goal is to hold offenders directly accountable while providing important
support and assistance to victims. With the assistance of trained mediators, the victims are able to
let the offenders know how the crime affected them, receive answers to their questions, and be
directly involved in developing a restitution plan that holds the offenders financially accountable
for the losses they caused.

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Legal basis for use of victim-offender mediation

The legal basis for the use of victim-offender mediation method of settling criminal disputes stems
from;
 Section 73 of the Courts Act, 1993(Act 459) which provides that any court with criminal
jurisdiction may promote reconciliation of offences that are not a felony or aggravated in
degree.
 Section 64(1) of Alternative Dispute Resolution Act, 2010 (Act 798) which states that
the court may at any time refer a matter to mediation for a settlement of all or part of a
matter which has been brought before it.
 Section 16 of the Practice Direction (Disclosures and Case Management in Criminal
Proceedings) provides that at the case management conference stage, the court must
consider whether the offence is amenable to amicable settlement under the law, and if so,
that option must be explored and the court must refer the case to ADR.
It can be gleaned from these provisions that the absolute discretion lies with the court and not the
parties. The parties may only urge on the court to settle their differences through reconciliation. It
is also important to note that the court would not permit offences in the categories of felonies or
aggravated offences to be settled using victim-offender mediation.

Underlying reasons for using victim-offender mediation

There are many reasons which make the application of victim-offender mediation essential for
effective criminal justice system.
Firstly, the present criminal justice system is unsatisfactory in many respects. It leaves the
accused, the complainant and some members of the society dissatisfied with the outcome of
criminal cases disposed of by court trial.
Under the criminal justice system, a crime is regarded as an offence against the state and not the
victim. The state steps into the shoes of the victim and prosecutes the offender. In the end, the state
focuses on punishing the offender to either pay a fine to the state or commit the offender to a prison
term. There is very little or no attention to the needs of the victim, hence leaving the victim
unsatisfied, impoverished and bitter.
Victim offender mediation however, aims at restoring damaged or broken relationships between
an offender and a victim by providing both parties an opportunity to meet face to face to address
their differences through mediation. The key concern is that the criminal justice system should be
centered on the victim rather than the State since the offender may end up living in the same
community as the victim; and also the the need to consider the feeling of the victim with the
intention of restoring and transforming both parties to continuously live social peace and harmony.
Secondly, it is not all offences that need to be disposed of by the conventional trial methods. There
are some court cases which are so trivial in nature that after they have been called in court, people

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considering them objectively often conclude that they should not have been sent to court in the
first place.
It becomes more tragic when the outcome of such cases result in imprisonment of the accused,
knowing very well that imprisonment will not serve the interest of the complainant, the accused
or the society. Such cases make custodial sentences grossly inappropriate, considering in particular
the fact that the prisons are already congested with inmates; are expensive to maintain and breed
more criminals by grouping together criminals and perpetrators of minor crimes.
All these make imperative application of alternative means of dealing with criminals beside
imprisonment or a fine.
Thirdly victim-offender mediation provides alternative means of disposing of some of the
criminal cases in the manner that will be satisfactory to all concerned with the criminal process.

What is at the heart of victim-offender mediation?

Crime begins with harm to a person, or to the right of the individual. After the individual has been
hurt and has complained the suspect may be arrested. Prosecution now follows and this is the time
that the State comes in.
If the individual decides not to complain, there will be no basis for prosecution and intervention
by the State. Therefore crime is firstly harm against the individual or his personal right, before it
becomes an offence against the State.
On this basis, victim offender mediation requires a reversal of the emphasis placed on the State
and not the individual when dealing with certain types of crimes. It demands that the emphasis in
criminal justice should be on the individual rather than on the state. This is particularly important
when dealing with crimes that involve hurt or injury to the individual who is bound to continue to
live with the suspect and who invariably is his neighbor, co tenant or even a family member.
Victim Offender Mediation concentrates on the feelings of the individuals and the necessity to
consider future relationships between the victim and the offender with the hope that broken
relationships brought about by the harm may be restored.

The Process of Victim-Offender Mediation

As indicated earlier, with victim-offender mediation, the process is aimed at restoring damaged
or broken relationships by providing an opportunity for the victim and the offender to meet face-
to- face, for the purpose of making things as right as possible and for them to decide how they will
treat each other in the future. So it involves a meeting between the victim and offender, facilitated
by a trained mediator.
When they meet face to face, an opportunity will be offered to every party to narrate fully his own
side of the story, discuss in detail the causes, and effects of the offence and, together, both the

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complainant and the accused will determine how to relate to each other in the future, which is of
paramount importance as far as society is concerned. With the assistance of the mediator, the
victim and offender begin to resolve the conflict and to construct their own approach to achieving
justice in the face of their particular crime.
The process encourages dialogue and responsibility for past behaviour, an understanding of the
problems created by the offence, while focusing on future problem solving so as to ensure future
continuing relationships.
The meetings conclude with an attempt to reach agreement on steps the offender will take to repair
the harm suffered by the victim and in other ways to "make things right".
Victim-offender mediation proceeds on the following premises;
a) That the hurt to the complainant should be recognized.

b) That the harm to the offender should be recognized.

c) That as primary stakeholders, both the accused and the complainant should have equal
access to and participation in the system for solving their problems, including the selection
of their own “judges” or “neutrals”, determination of the venue, procedure etc. This is
where the value of mediation comes in.

d) That sanction for offences should be compensatory and intended not only to restore the
victim, as much as possible, to his previous position but goes beyond restitution and
embodies an apology and atonement by the offender.

e) That crime is first and foremost a violation of individual’s rights; next, as an infraction of
social relationship and social values before, lastly, becoming an offence against the law
and the State.

f) That punishment should seek to change forms of behaviour that society cannot accept
because morality is a corporate affair that affects the whole community.

g) That victim-offender mediation applies best to crimes involving personal relations, while
leaving strict offences against the State like treason, felonies, etc. to be dealt with in open
court in the adversarial system. Examples of such crimes are petty assault, insulting
behavior, acts tending to disturb the peace, causing unlawful damage to property, etc. These
offences are classified as petty criminal offences or misdemeanors.

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Advantages of Victim-Offender Mediation

1. It enables offenders to assume active responsibility for their actions.

2. It recreates a working community that supports the rehabilitation of offenders and victims
thus active in preventing crime.

3. It prevents retaliation by reintegrating offenders into the community.

4. It provides a means of avoiding escalation of legal justice and the associated costs and
delays. Above all it assists the court to rid the system of trivial or less serious cases so as
to give more time to concentrate on grave offences that are to be tried through the
adversarial system of justice.

5. It helps to decongest the prisons.

6. It attends fully to victim needs , that is, material, financial, emotional and social including
those personally close to the victim who may be similarly affected. Thus it encourages
family members and neighbours to live together in peace.

7. The process effectively secures the privacy of those involved in seeking to settle disputes
and saves them from washing their dirty linen in public.

Criticisms
The following are some of the criticisms that are used against restorative justice:
 Restorative justice erodes legal rights
 Restorative justice fails to ‘restore’ victims and offenders
 Restorative justice fails to effect real change and to prevent recidivism
 Restorative justice results in discriminatory outcomes

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ARBITRATION – PART I

Arbitration is also one of the processes that have evolved over the years as alternatives to litigation,
but unlike negotiation and mediation, arbitration is adjudicatory in nature. So a distinction may be
drawn between Consensual ADR processes and Adjudicatory ADR processes (as indicated earlier
in our Introduction).
Consensual ADR processes such as negotiation and mediation are interest-based, i.e. based on
identifying the interests of the parties and reaching a mutually beneficial win-win solution.
Adjudicatory ADR processes, on the other hand, such as arbitration, are rights-based, i.e. they are
based on the rights of the parties with an adjudicator to determine those rights and reach a decision
based on rights or entitlements, similar to court litigation.
"Adjudication" is a term that can include decision making by a judge in a court, by an
administrative tribunal or quasi-judicial tribunal, a specially appointed commission, or by an
arbitrator. An adjudicator determines the outcome of a dispute by making a decision for the parties
that is final, binding and enforceable. The parties present their case to the adjudicator (or tribunal,
commission or arbitrator) whose role is to weigh the evidence and make a decision that is final,
binding and enforceable.
NB: Arbitration is viewed in different ways in some jurisdictions. In the US for example, it is
considered as part of the ADR processes. Other jurisdictions such as the UK consider arbitration
as separate from ADR due to its adjudicatory nature.
In Ghana, arbitration is considered to form a part of ADR processes.

What is Arbitration?
Arbitration is a private mechanism for the resolution of disputes which takes place in private,
pursuant to an agreement between two or more parties, under which the parties agree to be bound
by the decision to be given by the arbitrator according to law, after being enforceable by law.
It is where two or more persons agree that a dispute or potential dispute between them should be
decided in a legally binding way, by one or more impartial persons in a judicial manner, upon
evidence put before him/them.
The ADR Act defines arbitration as a voluntary submission of a dispute to one or more impartial
persons for a final and binding determination.
Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or
more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties
opt for a private dispute resolution procedure instead of going to court. It is commonly used in
disputes that are commercial in nature.
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Thus, the key points to note are:

 There is a dispute.
The dispute must be one which is arbitrable. Not all disputes can be dealt with by arbitration.
 There is an agreement to submit the dispute to arbitration.
Arbitration can only take place if both parties have agreed to it. Thus, arbitration is consensual
and is founded on the agreement of the parties.
In the case of future disputes arising under a contract, the parties insert an arbitration clause in
the relevant contract. An existing dispute can be referred to arbitration by means of
a submission agreement between the parties. Commented [JE6]:
Disputes that arise between parties may arise in relation to
 It is private in nature a contract that the parties have entered into, and that
contract might contain a clause that mandates the parties to
It is essentially a private mechanism for settling disputes. It is not State-sponsored, i.e. the refer all future disputes arising out of the contract to
arbitration.
State does not provide the infrastructure/facilities for arbitration. The only support given by
the State is the legal infrastructure, i.e. the legal framework for arbitration to thrive. Alternatively, parties may, without any such clause in a
contract, draw up an agreement to submit any existing
 There is an arbitrator disputes they may have to arbitration.

Arbitration is administered by an arbitrator or arbitrators appointed by the parties.

 The dispute is determined in accordance with law
The process must end in some finality. So the tribunal must make a decisive award. Finality
means that no court or tribunal can examine it on its merits.
 The outcome is final and binding
The outcome of an arbitration is known as an award, not a judgement, and it is final and
binding. This means you cannot appeal against an arbitral award. Once delivered, the
successful party may enforce the award. However, the award may be set aside. This does not
mean it is appealable. The grounds for setting aside an award are limited in scope.

Arbitration compared to litigation

In some aspects, arbitration is similar to court litigation;
- Like the judge, an arbitrator renders a decision called an award.
- The outcome of arbitration and litigation is binding on the parties and in some cases on
parties claiming through them.
- Evidence is taken in both arbitration and litigation.
- Parties are subjected to the same evidential procedures.

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Arbitration however, differs from courts and quasi-judicial tribunals in a number of respects. For
example, many arbitrations are voluntary in that both parties agree to submit the dispute to
arbitration, and the parties often agree on the selection of the arbitrator and the procedural rules.

Compulsory/Statutory Arbitration
Arbitration can also be ordered by a court or be compelled by a statute. This usually occurs where
the party/parties belong to a particular trade to a particular trade/industry which requires that
disputes be resolved by arbitration.
For example, Section 141 of the Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act
930) requires that a party aggrieved by the Bank of Ghana's decision to revoke a licence of a bank
or specialised deposit taking institution must resort to arbitration under the Alternative Dispute
Resolution Act 2010 (Act 798).

Advantages of Arbitration
There are several advantages of arbitration, and this accounts for why arbitration has become
prudent in resolving commercial and investment disputes. These include;
 Expeditious
It is faster than litigation because the procedures are flexible and once the hearing days are
fixed and the parties and Arbitrator are ready, the case progresses to speedy resolution.
 Confidentiality of proceedings
Arbitration is a private forum and so proceedings are held in private, enabling parties to avoid
publicity for their dispute. Dirty linen may be washed, but it will be washed discreetly and not
in public. Arbitration therefore places the highest value upon confidentiality, especially where
it revolves around trade secrets.
 Usually less costly compared to litigation
Most of the time, but not always the case, arbitration is a lot less expensive than litigation.
Arbitration is often resolved much more quickly than court proceedings, so attorney fees are
reduced. Simplified procedures cut down costs. Costs are also reduced by lack of opportunity
to appeal the arbitrator’s decision.
 Finality of decision
The award is final and binding, making the resolution of the dispute expeditious.
The courts will nearly always respect a provision that the decision is final and binding. This
serves to discourage appeals to the courts, and to make provisions for finality meaningful.
Arbitration awards can only be set aside on limited grounds provided by law

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 Expertise of decision-maker
The parties are given the opportunity to participate in and select their own arbitrator(s). They
can thus choose an arbitrator who is an expert in the subject matter of the dispute. The arbitrator
might have specific industry knowledge and experience, making it easier for the resolution of
the dispute.
 Award is transportable
This means the award can be carried to and enforced in another jurisdiction.
 Procedural Flexibility
Parties opt for their own procedure and so can opt for simple and informal procedures
 Power of Arbitrators
Arbitrators may exercise certain powers that are not available to judges, particularly in making
awards. For example, an arbitrator can make an award for compound interest but a judge
cannot.
 Impartiality
The parties to the dispute usually pick the arbitrator together, so the arbitrator will be someone
that both sides have confidence will be impartial and unbiased.

Disadvantages of Arbitration
 Arbitration can be expensive
Arbitration is not necessarily a cheaper method of resolving disputes than litigation. First, the
fees and expenses of the arbitrator(s), (unlike the salary of a judge) must be paid by the parties;
and in commercial arbitration, these charges may be substantial. Secondly parties may also
have to pay administrative fees of an arbitral institution, the expenses of the arbitrators to travel
to and attend hearings and hire rooms for meetings and hearings, rather than making use of the
public facilities of the courts of law.
 Arbitration can be time-consuming
Arbitration can also be time consuming as litigation; a dispute may raise complex issues of
fact or technical points of fact or law which require considerable time to be set aside for
arguments.
 Lack of binding precedent
There is the possibility of having conflicting decisions in arbitration due to the absence of
binding precedent.

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 Power of the court to intervene

Although the court’s power to intervene in arbitration proceedings are now limited, they are
not wholly excluded and in some circumstances the parties may need to invoke the court’s
assistance, for instance to enforce an award, or to resolve unforeseen procedural problems.
 Power of Arbitrator to make interlocutory orders
The arbitrator’s powers to make interlocutory orders are much more limited than those of the
court. A party may therefore have to invoke the assistance of the court to obtain orders covering
such matters as security for costs, the preservation of evidence or the subject matter of the
dispute or interim injunctions.
 No Appeals
If one party feels the decision is erroneous, there is very limited opportunity to correct it.
 Unpredictability
Arbitration does not necessarily follow the formal rules of procedure and evidence that are
involved in a courtroom trial. Rules of evidence may prevent some evidence from being
considered by a judge or a jury, but this limitation does not apply to arbitrators. Thus, an
arbitrator’s decision may be based on evidence that a judge or jury would not consider at trial,
which could be damaging to a party’s case.
On the other hand, if certain information from a witness is presented by documents, then there
is no opportunity to cross-examine the testimony of that witness.
An arbitrator may make rulings that would not be appropriate in court or may push for
unconventional solutions, and this could both be a pro or con.
 Questionable fairness
If arbitration is mandatory by contract, then the parties do not have the flexibility to choose
arbitration upon mutual consent. In these cases, one party can force the other party to go to
arbitration, even a trial maybe more advantageous to the other party. (Then again, by agreeing
to the contract in the first place, the other party must be deemed to have agreed to submit any
dispute to arbitration if such a clause was included)
 A non-signatory to an arbitration agreement cannot be a party to an arbitration.

Types of Arbitration
Arbitration may be classified as either Domestic Arbitration or International Arbitration.
A domestic arbitration is one concerned with purely national or domestic issues. This means, in
general terms, that all aspects of the arbitration proceedings are related to a single jurisdiction. For

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example, the nationality of the parties, the governing law of the contract, the place of performance
of the contract and the facts giving rise to the dispute will all relate to the same jurisdiction.
An international arbitration, on the other hand, will reach beyond the borders of a single
jurisdiction. When an arbitration takes place within a country or outside the country, containing
ingredients of foreign elements in relation to the parties or the subject matter of the dispute, it is
international arbitration.
These are discussed below;

 Domestic Arbitration:
Firstly, it is important to note that domestic arbitration is not the same as customary arbitration.
The two are not the same.
Domestic arbitration connotes arbitration that takes place in countries. Although there is no
specific definition, there are certain characteristics by which we identify domestic arbitration;
- The arbitration takes place in a country where the parties originate
- The subject-matter of the dispute is within the country
- The seat of arbitration is in that country
- The law governing the arbitration is the law of that particular country
- If the arbitration is being administered by an institution, then that institution will be within
the jurisdiction/territory of that country
- The enforcement of the award is within the jurisdiction

 International Arbitration:
Once again, there is no standard definition of international arbitration, but it is often described as
international if it involves parties of different nationalities, or it takes place in a country that is
‘foreign’ to the parties, or it involves an international dispute, or having regard to the nature of the
dispute, such that the arbitration is considered international if the dispute concerns cross-border
commercial activity.
There are international conventions that outline certain features that characterize international
arbitration.
For example, the International Chamber of Commerce (ICC), which deals with disputes of an
international character, in deciding whether or not an arbitration is international, considers the
nature of the dispute. At first, the ICC considered business disputes to be international only if they
involved nationals of different countries, but altered its Rules in 1927 to cover disputes that
contained a ‘foreign element’, even if the parties were nationals of the same country.
There is also the UNCITRAL Model Law. This is an international legal framework that provides
a set of provisions on international commercial arbitration conduct and management. It is one of
the three pillars of arbitration created by the UN, to assist countries with different legal systems in
harmonizing their arbitration laws. So it aims at synchronizing arbitration laws across the world.
It is a template that States may adopt when preparing arbitration laws.
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The UNICTRAL Model Law sets out what constitutes international arbitration. It states in Article
1(3) that an arbitration is international if:
a) the parties to an arbitration agreement have, at the time of the conclusion of that
agreement, their places of business in different States; or

b) one of the following places is situated outside the State in which the parties have their
places of business:
- the place of arbitration pursuant to the arbitration agreement
- any place where a substantial part of the obligations of the commercial relationship is to be
performed or the place with which the subject-matter of the dispute is most closely
connected; or

c) the parties have expressly agreed that the subject matter of the arbitration agreement relates
to more than one country.
The summary of this law is:
1. An arbitration is international if parties have businesses in different states (internationality
of the parties);
2. An arbitration is international if the parties have their business in the same country but:
a. The place of arbitration is in a different country; or
b. The place of performance of the commercial obligation is in the different country; or
c. The place with which the subject-matter of the dispute is closely connected with a
different country. (internationality of dispute)
3. The parties agree that the subject matter of the arbitration is international.

There is also the New York Arbitration Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, popularly known as the New York Convention. It is one of the key
instruments in international arbitration. This convention deals with the enforcement of
international awards, i.e. an award which you can seek recognition and enforcement of in a country
other than where the award was awarded.

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Framework of International Arbitration

International arbitration may require reference to multiple national systems or rules of law:
 Law governing the recognition and enforcement of the arbitration agreement
There is the law governing the recognition and enforcement of the arbitration agreement, i.e.
the agreement to arbitrate.
Arbitration agreement is that agreement by parties to resolve their dispute through arbitration.
That agreement must have a governing law and this law is what will be used in determining
any dispute arising out of the arbitration agreement.
 Lex Arbitri
The law which governs/regulates the place/seat of the arbitration proceedings. This is the Lex
Arbitri.
This refers to the arbitration laws of the place where the arbitration is taking place and not the
entire laws of that country or place. So anytime that an arbitration agreement provides for the
place of arbitration, then the arbitration laws of that country will be the laws that will be applied
in the arbitration proceedings.
 Governing law
The law which the tribunal/arbitrator will use in resolving the dispute, i.e. the law that the
parties have chosen to resolve the substantive dispute (aka the proper law / the applicable law).
It is the governing law that will be used in determining the rights of the parties.
 The law governing the recognition and enforcement of the arbitral award
 Lex Mercatoria
Conventions, practices or standards of industry the arbitral tribunal may adopt.
 Procedural rules that govern the arbitration process
These are Institutional rules or Ad-Hoc rules.
Institutional arbitrations are conducted pursuant to institutional arbitration rules and Commented [JE7]:
overseen by an arbitral institution with responsibility for various aspects such as arbitrator When arbitration is conducted by an arbitral institution, it is
called institutional arbitration.
appointments, fixing of arbitrators' fees, and administrative support. Parties to an arbitration
may designate an institution to administer the arbitral process. These institutions have their
own arbitration rules. Some leading institutions are:
- The International Chamber of Commerce (ICC),
- The London Court of International Arbitration (LCIA),
- The Ghana Arbitration Centre or
- The International Center for Dispute Resolution (ICDR).

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Each institution has its own set of rules which provide a framework for the arbitration, and
its own form of administration to assist in the process.
Ad-Hoc arbitrations are conducted without recourse to institutional arbitration rules and
without the oversight of an arbitral institution. The parties do not designate a particular
institution to administer the arbitral process in accordance with its rules. Where Ad-hoc rules
are applied, the arbitration is not administered by an institution and therefore, the parties are
required to determine all aspects of the arbitration like the number of arbitrators, manner of
their appointment, procedure for conducting the arbitration, etc.
Parties have the flexibility to choose which rules and procedures would apply.
The UNCITRAL Arbitration Rules are widely used in ad hoc arbitration disputes Commented [JE8]:
worldwide. The UNCITRAL Arbitration Rules provide a comprehensive
set of procedural rules which parties may agree to use for
 Soft laws the conduct of their arbitral proceedings.
It covers all aspects of the arbitral process.
These are typically non-binding but are adopted as part of the arbitration process and they do
assist the arbitrator to fill in gaps where the parties have not already chosen a procedure or rule
to govern that. Examples include the International Bar Association rules for taking evidence
or International Bar Association rules on conflict of interest.
These are non-binding general rules enacted by reputable organizations that regulate
arbitration. Parties may have regard to those rules and make them binding if they want to. For
example, the International Bar Association Rules on Taking Evidence.

Principles of International Arbitration

There are principles deemed to facilitate the use of arbitration as a viable mechanism for dispute
resolution. They are of universal application (also applicable in domestic arbitration). These
include:
 Separability/Severability
An arbitration agreement is to be treated as separate from the main agreement in which it is
contained and, as such, survives the termination or invalidity of the main agreement.
Separability is a legal doctrine that allows an arbitration agreement to be considered entirely
separately from the underlying contract in which it is contained. The principle means that the
arbitration agreement is independent and autonomous. It also means that the arbitration
agreement is separate and distinct from the agreement in which it is contained.
So an arbitration agreement which forms part, or is intended to form part of another agreement
shall not be regarded as invalid, non-existent or ineffective only because that other agreement
is held to be invalid, non-existent or has become ineffective, and it shall, for that purpose, be
treated as a distinct agreement.

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The practical effect of the rule is that unenforceability of the underlying agreement does not
automatically render an arbitration agreement contained within it unenforceable. The rationale
is that there is a need not to deprive a party the opportunity to resolve the dispute according to
the chosen means, else aparty wishing to evade its obligation to arbitrate could argue that as a
result of the main agreement being invalid, the arbitration clause forming part of the main
agreement is also invalid.
The principle stems from the case of Harbour Assurance v Kansa General International
Insurance4 where it was held that an arbitration clause in an insurance contract was separate
from the main contract with the effect that:
(a) invalidity of the main contract did not deprive the arbitrator of jurisdiction, and
(b) the arbitrator had jurisdiction to decide the question of illegality of the main contract.

 Competence - competence (Kompetenz - Kompetenz)

This is sometimes translated as the right of the arbitrator to rule on his or her own jurisdiction.
This is a generally accepted principle according to which the arbitral tribunal has the
competence to determine its jurisdiction in three main areas:
- The tribunal has power to rule on the existence, scope or validity of the arbitration
agreement
- The tribunal has power to rule on the existence or validity of the agreement to which the
Arbitration agreement relates
- The tribunal has the power to determine whether the matters submitted to arbitration are in
accordance with the Arbitration agreement.
This principle has been illustrated in the case of Christopher Brown Ltd v Genossenschaft
Oesterreichischer Waldbesitzer Holzwirtschaftsbetriebe Registrierte GmbH5

 Party Autonomy
The principle highlights the freedom that is granted to the parties to determine how the
arbitration will be conducted. It is often referred to as the backbone of arbitration proceedings.
It deals with matters such as the appointment of arbitrators, the rules that will govern the
arbitration processes, the place of arbitration and essentially, how the dispute will be resolved.

4
[1993] 1 Lloyd's Rep 455
5
[1954] 1 QB 8,

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 Amiable compositeur / Amiable composition / exacquo et bono

Rather than deciding a case strictly on the basis of applicable law, under some circumstances,
an arbitral panel may rule based on equitable principles. Generally, the arbitrators must be
authorized to do so. This is usually accomplished by empowering the arbitrators either to act
as amiable compositeurs or to decide the case ex aequo et bono.
Amiable compositeur or “ex acquo et bono” means dispute settlement where parties
expressly agree that the Arbitrator is not bound by strict rules of law but based on fair, just and
moral and commercially accepted principles.
This principle is traditionally French and associated with the civil law tradition. (ex acquo et
bono is associated with the common law tradition)
Both refer to the power given to the Arbitral tribunal to determine a dispute by applying
principles of equity and fairness.
The application of equity is not the same as the maxims of equity. It is what the tribunal or an
arbitrator considers to be equitable/fair.
Where an arbitrator is to act as amiable compositeur, it also means that in addition to the
substantive law chosen by the parties to resolve the dispute, an arbitrator can employ the
principles of equity and fairness if his application of the substantive law chosen by the parties
will result in an unjust outcome.
The parties themselves must agree to grant the arbitrator the power to act as amiable
compositeur or decide the matter exacquo et bono.
The slight distinction between amiable compositeur and exacquo et bono is that when an
arbitrator acts as amiable compositeur, it is only when the outcome of the arbitration is
unfair/unjust that he will act as amiable compositeur. But in deciding the matter exacquo et
bono, it is done from beginning to end.

 Arbitrability
In simple terms, the principle of arbitrability relates to what types of disputes can or cannot be
resolved by arbitration.
Arbitrability concerns whether a type of a dispute can or cannot be settled by arbitration. It is
the subject-matter that the national law prescribes as being amenable for resolution through
arbitration.
What can be resolved through arbitration is always determined by State law. Not all matters
are arbitrable. As a matter of public policy, each country reserves to itself, the power to
legislate that in certain matters, the power of the Court cannot be circumvented by a private
agreement to submit to Arbitration.

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The Arbitration Agreement

The Arbitration Agreement is the basis or foundation of all arbitration proceedings. Without it,
there can be no arbitration.
It is simply an agreement to resolve present/future disputes through arbitration.
The Arbitration Agreement may take one of two forms:
o An arbitration clause contained in main contract, which provides that if a dispute should
arise, it will be resolved by arbitration. This type of agreement anticipates the resolution of
future disputes.

o An agreement signed after a dispute has arised, agreeing that the dispute should be resolved
by arbitration. This is also referred to as a submission agreement, and it deals with present
or existing dispute between the parties.
NB: Arbitration clauses are sometimes referred to as midnight clauses. This is because parties
are usually concerned with the substantive terms of the contract, e.g. the obligations of the parties,
and tend to focus on those. Arbitration clauses are not given much thought and usually come as an
afterthought.
The importance of the Arbitration Agreement is recognized in certain conventions and
international protocols, including:
- The 1923 Geneva Protocols (deals with the recognition and enforcement of the
Arbitration Agreement)

- New York Convention (also deals with the recognition and enforcement of the Arbitration
Agreement as well as the Award). Article II governs the recognition and enforcement of
arbitration agreements. Provided that certain conditions are satisfied, article II mandates
Contracting States to recognize an agreement in writing to submit disputes to arbitration
and to enforce such an agreement by referring the parties to arbitration.
Below, we consider the requirements for the recognition and enforcement of an Arbitration
Agreement:
1. The Arbitration Agreement must be in writing
The question here is what constitutes “writing”?
So writing here includes an arbitration agreement in the main agreement. Equally, the
submission agreement also qualifies as writing.
Under the New York Convention, the exchange of letters and telegrams constitutes writing.
Under the UNCITRAL Model Law, writing includes the clause in a contract, the submission
agreement, exchange of letters or correspondence, where a party makes an averment in his

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statement of claim which is not denied by the other party, or any form of writing which
provides a permanent record of the parties agreement.
Note that the requirement of writing varies from country to country.

2. The Arbitration Agreement must deal with existing/future disputes

3. The dispute should arise out of a defined legal relationship, whether contractual or
not

The arbitration agreement must relate to the parties transaction/contract. Whether or not a
matter is subject to the Arbitration Agreement is a matter of construction of the agreement.

4. The subject-matter must be capable of settlement by arbitration

There are some matters that are reserved for the national courts, while some may be brought
under arbitration. What is arbitrable is determined by the laws of the State.
Article II(1) of the New York Convention contains a requirement that the subject-matter be
capable of settlement by arbitration. Article V(2) also provides that recognition and
enforcement of an arbitral award may also be refused if the competent authority in the country
where recognition and enforcement is sought finds that the subject matter of the is not capable
of settlement by arbitration under the law of that country.
Also Article 34 (2)(b)(i) of the UNCITRAL Model Law provides that an arbitral award may
be set aside by the court if the court finds out that the subject-matter of the dispute is not
capable of settlement by arbitration under the law of this State.

5. The parties to the agreement must have legal capacity under the law applicable to
them
Parties who enter into an arbitration agreement must have legal capacity to do so.
Article II (3) of the New York Convention requires national courts to refer the parties to
arbitration unless they find that the relevant agreement is “null and void, inoperative or
incapable of being performed.
Same is reproduced in Article 8(1) of the UNCITRAL Model Law.
One of the few grounds in the New York and Panama Conventions for refusing to enforce an
arbitration award exists when the parties to the arbitration agreement are under some incapacity
(pursuant to the law applicable to them) or when the arbitration agreement is invalid under the
governing law agreed by the parties or, in the absence of an agreement on the governing law,
under the law of the country where the award is made.
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6. The Arbitration Agreement must be valid under the law which the parties have
subjected it to
If an agreement is vitiated by say fraud or duress, it can not be valid and enforceable.

Drafting the Arbitration Agreement

There are a number of things to consider when drafting the arbitration agreement.

 Adoption of Arbitration as the method to resolve disputes

The first requirement for an arbitration clause is that the parties’ agreement must expressly
state they intend to resolve their disputes by arbitration. While this seems obvious, occasionally
parties have said that controversies would be referred to an institution that administers
arbitration proceedings, but without mentioning arbitration as the method for deciding their
issues. Institutions such as the ICC have other methods for determining disputes that do not
include arbitration. These procedures encompass conciliation, expert determination and a pre-
arbitral referee procedure. Thus, if the parties want their disputes decided by arbitration, they
should say so explicitly.
 Finality of the Award
It is common for arbitration clauses to provide that any arbitration award rendered will be
“final and binding”. In this context, “binding” means the parties intend that the award will
resolve the dispute and be enforceable by national courts against the losing party. It will not
result merely in an advisory opinion that the parties are free to disregard. A reference that any
award will be “final” means the substance of the award will not be reviewed by the courts.
By including the terms, “final and binding”, or an equivalent phrase – “any disputes shall be
finally settled by binding arbitration” – parties express their intent for courts to enforce the
award without reviewing the evidentiary foundations of the award. This is an important
provision, and especially so if institutional rules are not adopted.
Even if the parties do not say explicitly that the award will be final and binding, they may
accomplish the same result by adopting institutional rules, such as those of the ICC, AAA or
LCIA Rules. The ICC and LCIA Rules provide that any award shall be “binding” on the parties,
and by submitting to those rules, the parties waive their right to any form of recourse, to the
extent such waiver may be validly made.

 Scope:
The next thing to consider is the scope of the agreement. The most frequent, and important,
issue that arises in the interpretation of international arbitration agreements relates to the
“scope” of the parties’ agreement; that is, what category of disputes or claims have the parties
agreed to submit to arbitration?

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It is the Arbitration Agreement that confers a mandate on the tribunal to resolve the dispute
between the parties, and the tribunal must act within the scope of its authority.
It the tribunal acts outside the ambit of its authority, then an award made by that tribunal will
be set aside. This is supported by Article 34(2)(iii) of the UNCITRAL Model Law and Article
V(1)(c) of the New York Convention.
You may look out for the form of words that capture the scope of the Arbitration Agreement.
There are no special words that are able to capture the intention of the parties, but the
Arbitration Agreement must not be drafted to limited the authority of the tribunal to resolve all
disputes/issues under the transaction.
It is important to ensure that the wording adopted in an arbitration agreement is adequate to
fulfil the intentions of the parties. Thus, the arbitration agreement should be drafted so as to
make clear that resolving disputes by arbitration is not only the parties’ right but also their
obligation. Where parties include an arbitration agreement in their contract, they usually intend
to resolve all disputes between them by this method (unless a specific exception is made)
Essentially, the Agreement must be drafted in broad, inclusionary terms by referring all the
disputes to arbitration, and eschew the practice of referring some matters to arbitration and
others to the court. It is advisable to avoid language that may restrict the scope of the
agreement.
Although there are no special words as mentioned earlier, certain words/phrases are able to
highlight the scope of the Agreement. Words and phrases like “in relation to”, “in respect of”,
“in connection with”, “with regard to”, “arising out of”, “under”, etc., have been held to be
necessary in determining the scope of an Arbitration Agreement.
In Ethiopian Oil Seeds v Rio Del Mar Food Inc, the phrase “arising out of” was given a
wider interpretation to encompass all disputes capable of settlement by arbitration.
“Claims”, “differences” and “disputes” have also been held to confer a wide jurisdiction in
Arbitration Agreements.
Similarly, the words “any controversy or claim arising out of or relating to this agreement”
were described as a broad arbitration clause.
The standard clause of ICC is simple and clear, contains all the ingredients to be an effective
arbitral clause: “All disputes arising out of or in connection with the present contract shall
be finally settled under the Rules of Arbitration of the International Chamber of Commerce
by one or more arbitrators appointed in accordance with the said Rules.” This one can be a
good model to start drafting a similar clause
 Use of Mandatory words:
In drafting an Arbitration Agreement, it is important to use mandatory words, and avoid using
permissive words. So it is important to use words like “shall” and avoid words like “may”.

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It is also important to avoid ambiguous and equivocal expressions.

 Reference to Ad Hoc or Institutional Arbitration:

One of the more fundamental issues for parties agreeing to arbitrate future disputes is to
determine whether the arbitration will be conducted ad hoc or will be administered by an
arbitral institution. In drafting the Arbitration Agreement, reference ought to be made to
institutional or ad hoc rules.
Parties are usually advised to opt for either of these rules because it enables them to adopt
matters that otherwise have not been taken into account in the Arbitration Agreement, i.e. it
enables them to fill any gaps in the Agreement.
It is possible to draft an Arbitration Agreement without reference to these rules, but the danger
is that the parties will have to anticipate and make provision for every possible issue or
scenario.

 Composition of the Arbitral Tribunal:

The Arbitration Agreement must make provision for the number of arbitrators, and the mode
of appointment of these arbitrators. Most arbitration rules provide for the number of arbitrators
and a method for selecting them if the parties do not specify the number or a mechanism for
their appointment. Nevertheless, it is generally desirable that the parties express their
preference. For example, ‘the parties agree that a sole arbitrator should be appointed, and
that appointment will be by the consent of the parties’.
The number of arbitrators must always be an odd number. The custom in international
arbitrations involving significant monetary amounts is to appoint a three-person panel, but
when the amount in dispute does not justify three, a single arbitrator may be preferred.
It is important to avoid the situation where the parties appoint 2 arbitrators and an umpire. An
umpire is basically a person chosen to decide a question in a controversy that has been
submitted to arbitration but has not been resolved because the arbitrators cannot reach
agreement.
If the parties want the arbitrators to have a particular qualification, it must be indicated in the
Agreement.

 Place/seat of arbitration:
The place/seat of arbitration must be indicated in the Agreement. This is the home of the
arbitration.
The place/seat of arbitration is not necessarily the same as the venue of the arbitration.

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The seat of arbitration is a location selected by the parties as the legal place of arbitration, that
is, the place where the arbitration is considered held from a legal point of view, which
consequently determines the procedural framework of the arbitration. Although the seat is
defined as a location, it is in fact a legal construct, with a limited geographical relevance. The
seat of an arbitration will decide the law applicable to the proceedings (which country’s laws
would apply) and the courts having supervisory jurisdiction over the award delivered.
In contrast, the 'Venue' of arbitration merely defines the geographical place where such
arbitration is conducted, the physical location where the arbitration hearings or deliberations
are held
Practically, the parties may choose one country and its arbitration laws as the procedural law
of the arbitration, but hold hearings and all other remaining activities in a different country
without ever setting foot in the country chosen as the seat.
The place/seat of arbitration which the parties choose must have facilities to facilitate the
arbitration process. It is also important to ensure that the place of arbitration is amenable to
arbitration, i.e. are the laws of that country friendly to arbitration?

 Governing law:
The governing law of the Agreement must be indicated where the choice of law for the
contract, differs from the law intended to govern the Arbitration Agreement. It is generally
desirable to specify in the Agreement, the substantive law to govern the parties’ disputes.
In Enka Insaat Ve Sanayi AS v. OOO Insurance Company Chubbb, the UK Supreme
Court clarified the proper approach to determine the applicable law of an arbitration agreement.
The court held that;
- First, you must identify the law chosen by the parties to govern the Arbitration Agreement.
In order to determine whether the parties have made a choice, the arbitration agreement
and the contract containing it are to be construed, as a whole.

- Where the arbitration clause does not specifically mention the law governing the
Arbitration Agreement, but however mentions the law of the main contract, then the same
would normally be the law governing the arbitration agreement. (the court held that the
fact that the parties have chosen a different country as the seat of arbitration does not negate
the inference that a choice of law for the main contract extends to the arbitration agreement)

- Where the parties did not indicate the governing law for the main contract as well, then the
Arbitration Agreement is to be governed by the system of law with which the arbitration
agreement is most closely connected. Where a seat has been chosen, it will generally be
the seat, even if it differs from the law applicable to the parties’ substantive contractual
obligation. Thus, where there is no express choice of law governing the main contract, by
default, the arbitration agreement would be governed by the law of the seat.

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 Language:
The language in which the proceedings would be conducted must be indicated. It is very
important that the parties agree on the language of arbitration because through this agreement
they will avoid expensive and time-consuming translation of documents, interpretation at
hearings
Absent agreement by the parties, most arbitral rules allow the arbitrators to decide the
language, taking into account the language of the contract and other relevant circumstances.

 Multi-tier clause:
Parties may want to include a multi-tier clause in the Arbitration Agreement. This is a clause
inserted in the Agreement which allows parties to attempt amicable settlement of the dispute
before arbitration. Simply put, parties may provide that, in the event of a dispute, they may
resort to negotiation, which if it fails, then, mediation, failing which they will resort to
arbitration. It requires the parties to explore fully the possibility of amicable settlement prior
to the launch of often lengthy, expensive, and disruptive arbitral proceedings.
If such a clause is adopted, a clear timeline for its implementation must be indicated.
One should realise that these processes are precedent to the arbitration proceedings so failure
to comply may lead to the arbitration proceedings being irregular or having the award or
process set aside.

Drafting Arbitration Clauses: Avoiding the Seven Deadly Sins

There are some other important considerations that must be taken into account when drafting
arbitration clauses. According to John M. Townsend, an arbitration clause has to avoid the “seven
deadly sins”. These have been described as pathological arbitration clauses, i.e. clauses that are
impossible or extremely difficult to implement, and are likely to breed disagreement during
arbitration, or potentially risk the award being set aside.
Townsend identifies the seven deadly sins of an arbitration clause: equivocation, inattention,
omission, over-specificity, unrealistic expectations, litigation envy, overreaching. These are
briefly highlighted below:
1. The Sin of Equivocation
This refers to the failure of the arbitration clause to state as clearly as possible that the parties
agreed to solve their problems through arbitration, but rather makes reference to two fora.
For example, “In case of dispute, the parties undertake to submit to arbitration, but in case of
litigation the Court of Seine shall have exclusive jurisdiction”.
This clause has no element of finality.

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2. The Sin of In-attention

This refers to drafting an arbitration clause with insufficient attention to the transaction to
which it relates.
This generally relates to identifying the type of dispute resolution best suited to the transaction.
In other words, the arbitration clause must be drafted to deal with matters that are arbitrable,
and a drafter commits the sin of in-attention if the arbitration clause deals with a matter that is
non-arbitrable.
Before drafting the arbitration clause, some important questions must be asked, such as what
type of dispute resolution process is best in our circumstances?
3. The Sin of Omission
Omission is the sin that makes the arbitration clause incomplete, and where critical elements
are omitted from the arbitration clause which makes it difficult to implement.
For example, “Any disputes arising out of this Agreement will be finally resolved by binding
arbitration”.
This clause is too weak in content and this fact will affect the parties’ interests. It makes no
mention about the arbitrator to be appointed, the place of arbitration, etc.
4. The Sin of Over-Specificity
This sin refers to arbitration clauses that have too many details and as a result, becomes hard
to put into practice.
For example, “The Arbitration shall be conducted by three arbitrators, each of whom shall be
fluent in French and Arabic, and shall have 20 or more years of experience in the practice of
law and engineering, and one of whom, who shall act as chairman, shall be a expert on the law
of negligence under both the common law and civil law.”

5. The Sin of Unrealistic Expectations

This refers to tight time limits in the arbitration process, where the arbitration clause is drafted
with such close timelines that it becomes unrealistic for the arbitration proceedings to meet the
timelines that have been set in the Arbitration Agreement.
For example: “The claimant will name its arbitrator when it commences the proceeding. The
respondent will then name its arbitrator within ten days, and the two so named will name the
third arbitrator, who will act as chair, within ten days of the selection of the second arbitrator.
Hearings will commence within seventy days of the selection of the third arbitrator, and will
conclude no more than five days later. The arbitrators will issue their award within ten days
of the conclusion of the hearings.”

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6. The Sin of Litigation-envy

In this case, the contracting parties want that their problems be solved through arbitration, but
following the court rules. Parties are enjoined to exclude the use of court rules in arbitration
proceedings.
7. The Sin of overreaching
Overreaching is when the drafter of an arbitration clause cannot resist the temptation to tilt the
arbitration process in favor of his or her client. This is particularly interesting because the job
of the drafter of a contract is generally to assist and protect their client in any legal way
possible. However, arbitration is meant to be equitable and fair. Because of this, overreaching
can be a serious problem

Initiating Arbitration Proceedings

The arbitration proceedings will be conducted based on the rules that the parties have chosen.
These rules will initiate how the arbitration should be commenced.
The arbitration process usually starts with the complaining party giving notice to the other about
their intent to arbitrate a dispute. A claimant will typically start arbitration by sending an initiating
document known as a “Request for arbitration” or a “Notice to arbitrate” to the respondent.
(the document may be accompanied by other documents that will assist the tribunal in the
determination of the matter).
The form of the initiating document is also determined by the rules chosen.
In ad hoc arbitrations, which are usually governed by the UNCITRAL Arbitration Rules, service
to the respondent is by default the only available option. In particular, Article 3(1) of the 2010
UNCITRAL Arbitration Rules provides that “the party or parties initiating recourse to
arbitration […] shall communicate to the other party or parties […] a notice of arbitration.”
In administered arbitrations, the party initiating arbitration has to submit the Notice or Request to
the competent body of the institution, and then, depending on the institution rules, either the party
or the institution itself will transmit a copy to the respondent.
Following this notice, the other party has a period of time to file a written response. After this
exchange the arbitration process begins, based on the rules and procedures agreed upon by the
parties, or specified in the contract from which the dispute arises.

The Notice/Request for Arbitration will begin with a heading. With the particular rule adopted, the
Forum must be indicated, and the parties stated. For example:

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Compiled by: Jojo K.S. Bentsi-Enchill 2021/2022

INTERNATIONAL CHAMBER OF COMMERCE

IN THE MATTER OF AN ARBITRATION UNDER THE RULES OF THE
INTERNATIONAL COURT OF ARBITRATION
Between:
BLACK STAR LIMITED
Claimant
- and –
SKYLINE CONSTRUCTION CORPORATION
Respondent

REQUEST FOR ARBITRATION

After this, you begin to set out the content of the Notice/Request for arbitration.
The notice includes the nature and basis for the proceeding. If the arbitration is to be conducted in
accordance with the rules of a particular arbitration institution, that institution’s rules will typically
prescribe what should be in the Notice to Arbitrate.
The document must be set out in paragraphs, and will typically set out the following information:
 NAMES AND ADDRESS OF THE PARTIES
Here, you identify who the parties are. You must set out:
- the name and contact details of the claimant and of the claimant’s counsel or other
representatives.
- the name and contact details of the respondent. (the details of the respondent’s counsel is
not indicated because at this point, he is unknown to the claimant)

 RELATIONSHIP BETWEEN THE PARTIES

Here, you identify any contract, other legal instrument or relationship out of or in relation to
which the dispute arises.
How do the parties know each other? What important information is required? What is the
transaction all about and what was each party required to do under it?
 NATURE AND CIRCUMSTANCES OF THE DISPUTE
Here, you give a summary of the facts and events giving rise to the dispute. The claimant must
clarify what has occurred which he considers to be a dispute, eg, breach of the contract.

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 THE ARBITRATION AGREEMENT

You must attach a copy of the Arbitration Agreement and state/refer to it as the basis under
which the claimant is initiating proceedings.
If there is a condition precedent for initiating the arbitration proceedings, you must provide
details of the claimant’s adherence to that condition precedent.
 CLAIMANT’S RELIEFS
The claimant must state all the reliefs claimed. This will take into account;
- Fees charged by his counsel
- Fees paid to the arbitrators
- Arbitration expenses, etc

 APPOINTMENT OF ARBITRATORS
The Arbitration Agreement would have set out provisions on the appointment of arbitrators.
The claimant would have to follow that established procedure and nominate a proposed
arbitrator(s) and provide details.
If there is a sin of omission in the Agreement regarding how the arbitrators should be
appointed, then the claimant may make a proposal as to how it should be done. For example,
“the parties did not agree on the number of arbitrators but the claimant is proposing a sole
arbitrator”.
 PLACE AND CONDUCT OF ARBITRATION
This should also normally be set out in the Arbitration Agreement, and the claimant must state
it (the place/seat of arbitration, the applicable law, procedural rules etc)
Where the Agreement does not provide for the place of arbitration, the claimant may make a
proposal on that.
Where the parties have chosen a place of arbitration, and there is a default in the number of
arbitrators to be appointed, in the absence of agreement by the parties, the lex abitri will
determine the number.
 THE LANGUAGE
The language of the arbitration proceedings should also be set out in the Arbitration
Agreement, and the claimant must state it.
If it is not set out in the Agreement, the claimant may make a proposal as to which language
the proceedings should be conducted in. If the proposal is rejected, then the lex arbitri will
determine the language to be used.

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 EXCLUSION PROVISIONS
Here, you indicate any exclusion provisions. For example, the claimant may indicate that he
does not want the tribunal to act as amiable compositeur.
 RESERVATIONS
Here, you must indicate that the claimant reserves the right to amend, revise, supplement or
augment the Notice/Request for Arbitration in the course of the proceedings.
At the end, it is dated and signed.

Responding after Arbitration Proceedings have been initiated

As indicated earlier, the Respondent is served with the Notice/Request for arbitration and is asked
to submit an answer to the request. This document is known as a Response/Answer to the request
for arbitration. This will take the same form as the request for arbitration as regards, the name and
description of parties, provision for the names of counsel, location.
The answer shall be brief and contain the Respondent’s view of the Claimant’s claims and, if
applicable, name and contact details to their appointed arbitrator. The respondent then also states
the nature of the dispute as he sees it in paragraph form. Take each statement denying or accepting
and putting across one’s case. He must also confirm or deny the arbitration agreement, the place
of arbitration, the language, etc. Example “In response to para 10 of the request for arbitration,
the respondent agrees.” The proposal from the applicant must either be accepted, denied or a
counter proposal must be made.
If the Respondent has any counterclaims or jurisdictional objections, these should also be included
in the answer.
Failure by the Respondent to submit an answer does not prevent the arbitration from proceeding.
The Response/Answer carries the same heading as the Notice/Request for Arbitration. However,
it would be titled ‘RESPONDENT’S (RESPONSE/ANSWER) TO (REQUEST/NOTICE)
FOR ARBITRATION.’
The document must also be set out in paragraphs, and will typically set out the following
information:
 NAMES AND ADDRESS OF THE PARTIES
The respondent may provide details here, especially if he feels that the claimant failed to
include relevant information.
He would also indicate the details of his counsel.

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 COMMENTS AS TO THE NATURE AND CIRCUMSTANCES OF THE DISPUTE

AND BASIS OF CLAIM
The respondent would make comments on the information given by the claimant. If what he
knows is different from what the claimant has indicated, he may clarify that.
 RESPONSE TO THE RELIEF SOUGHT
The respondent may make responses to the reliefs sought by the claimant, for example, denying
that the claimant is entitled to those reliefs.
 COMMENTS ON NUMBER OF ARBITRATORS AND THEIR CHOICE
The respondent would make his comments on the number of arbitrators and choice of
arbitrators. If any proposals have been made by the claimant regarding this, he would respond
to that.
 COMMENTS ON THE PLACE OF ARBITRATION, APPLICABLE RULES OF
LAW AND LANGUAGE OF THE ARBITRATION
The respondent would make his comments on the above issues. If any proposals have been
made by the claimant regarding this, he would respond to that.
 COUNTERCLAIM
If the respondent has any counterclaim, he would make that claim here and indicate the reliefs
sought. He would provide details of the facts/events leading up to the counterclaim.
 RESERVATIONS
The respondent may also indicate any reservations he has.

About The UNCITRAL MODEL Law

The United Nations Commission on International Trade Law (UNCITRAL) is the essential legal
body of the United Nations in the area of international trade law. It was established by the United
Nations General Assembly after the realization that differences in national laws governing
international trade are creating hurdles to the free flow of trade. Hence, this commission was
established with the view to play an active role in reducing or removing these hurdles.
The UNCITRAL Model Law on International Commercial Arbitration was adopted by the
UNCITRAL in 1985.
It is designed to harmonize and unify the laws of member nations to facilitate international
commercial arbitration and ensure its proper functioning and recognition, and came about due to
the need to meet concerns relating to the existing state of national laws on arbitration.

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It was observed that there was the need for improvement and harmonization because domestic
laws were often inappropriate for international cases and that considerable disparity exists between
them. There was the need for the UNCITRAL Model Law because:
1) Inadequacy of domestic laws
A global survey of national laws on arbitration indicated that the domestic laws were
considerably inadequate. Some laws were regarded as outdated, sometimes going back to the
19th Century and often equating the arbitral process with court litigation. Other laws were said
to be fragmentary in that they did not address all relevant issues. Most of the laws which even
seemed up-to-date, were drafted with domestic arbitration primarily in mind.
2) Disparity between national laws
It was noted that the national laws on arbitration differ widely, which is a frequent source of
concern in international arbitration where at least one of the parties is confronted with foreign
and unfamiliar provisions. For such a party, it may be expensive, impracticable or impossible
to obtain a full and precise account of the law applicable to the arbitration.
Additionally, uncertainty about the local law with the inherent risk of frustration may adversely
affect the functioning of the arbitral process, and the selection of the place of arbitration.
In order to eliminate these problems and concerns, the Model Law presents a special legal regime
geared to international commercial arbitration. It assists States in reforming and modernizing their
laws on arbitral procedure so as to take into account the particular features and needs of
international commercial arbitration. It covers all stages of the arbitral process from the arbitration
agreement, the composition and jurisdiction of the arbitral tribunal and the extent of court
intervention through to the recognition and enforcement of the arbitral award. It reflects worldwide
consensus on key aspects of international arbitration practice having been accepted by States of all
regions and the different legal or economic systems of the world.
The Model Law comprises 8 chapters, 36 Articles and is to be adopted by different nations into
their national laws or to adapt their national laws of arbitration based on the principles of this
model law.

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OVERVIEW OF GHANA’S ADR ACT:

THE ALTERNATIVE DISPUTE RESOLUTION ACT, 2010 (ACT 798)

Ghana enacted comprehensive ADR legislation in 2010 with the specific goals of providing access
to justice and promoting domestic and foreign direct investment. In reality, the principles of ADR
have been in existence in Ghana, dating as far back as the pre-colonial days. These principles have
remained embedded in various traditional norms and values of Ghanaian societies and
communities.
The legal basis on which the practice was founded and relied on were the Supreme Court
Ordinance of 1876 which provided for ADR practice and the English Arbitration Act of 1961
(Act 38). The current practice of ADR in Ghana is governed by Act 798.
A significant aspect of the Act was the inclusion of customary ADR processes in the legislation
along with statutory ADR. As a result, customary arbitration and mediation were mainstreamed
into Ghana’s civil justice system. By including customary arbitration, the Act gives statutory
legitimacy to an existent custom of submitting disputes to traditional heads and leaders of the
various communities. The Act also puts to rest the longstanding dispute whether arbitration is an
ADR Process.
Furthermore, the Act merges domestic and International arbitration in one statute, incorporates the
New York convention to give the law an international character and the provisions of Schedule
Five provides ready guidelines for practitioners in drafting arbitration agreements and clauses.
These are novel provisions, very dynamic and a commendable achievement by the Act.
The Memorandum of Act 798 indicates that the purpose of the Act is to;
- Bring the law governing arbitration into harmony with international conventions, rules and
practices.
- Provide legal and institutional framework to facilitate and encourage the settlement of
disputes through ADR procedures.
- Provide, by legislation, for the subject of customary arbitration
The Act is structured in 5 parts;
Part 1: Arbitration
Part 2: Mediation
Part 3: Customary arbitration
Part 4: Establishment of ADR Centre
Part 5: Financial, admin and miscellaneous provisions

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Overview of Act 798 as regards Arbitration

Part 1 of Act 798 governs arbitration in Ghana.
It reflects several provisions of the UNCITRAL Model Law, and has even modified it in certain
respects.
Some key laudable provisions are highlighted below;

 Section 2
Section 2 deals with the form of the arbitration agreement and highlights that the arbitration
agreement may be in the form of an arbitration clause in an agreement, or in the form of a separate
agreement (submission agreement).
It also touches on the requirement for writing and provides an expansive definition of what
constitutes a written arbitration agreement.
Accordingly, an arbitration agreement is in writing if;
- It is made by exchange of communications in writing, including exchange of letters, telex,
fax, email and other means of communication which provide a record of the agreement, or
- There is an exchange of statement of claim and statement of defence in which the existence
of the agreement is alleged by one party and not denied by the other.
Section 2 relaxes the need for a one literal document to be labeled as a written arbitration
agreement before arbitration can commence. What this provision achieves is to look at the intent
and purposes of exchange communication between parties to infer that parties have agreed to
submit their dispute to arbitration

 Section 3
Section 3 highlights the separability principle of arbitration agreements.
This provision states that an arbitration agreement that forms or is intended to form part of another
agreement, is not regarded as invalid, non-existent or ineffective because that other agreement is
invalid, did not come into existence or has become ineffective. The arbitration agreement for this
purpose is treated as a distinct agreement.
A case in point is Buckeye Check Cashing v. Cardegna6, in which case, the court reaffirmed the
position in Prima Paint v. Flood Conklin7 that as a matter of substantive federal arbitration law,
an arbitration provision is severable from the remainder of the contract.
This Section again leans in favor of arbitration and avoids situations where the arbitration
agreement contained in an agreement will be held void because the overall agreement is void, and

6
546 U.S. 440 (2006)
7
388 U.S. 87 (1967)

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a dispute is sent to court to go through long years and expense. This severability principle is
universal and puts the Act on international level of recognition and standard.
 Section 5
Section 5 states that parties to a dispute, in respect of which there is an arbitration agreement, may,
subject to the terms of the agreement, refer the dispute to any person or institution for arbitration.
They may also refer it to the ADR Centre established under the Act to facilitate the arbitration.

 Section 6
Under Section 6(1), where there is an arbitration agreement and a party to a dispute has
commenced an action in court, the other party may enter appearance, and then by an application
on notice to the party who commenced the action, apply to the court to stay proceedings and refer
the action or whichever part of the action to which the arbitration agreement relates, to arbitration.
Where the court hears the application and is satisfied that the matter in respect of which the
application was made, is a matter in respect of which there is an arbitration agreement, the court
shall refer the matter to arbitration.
The grant of the application serves as a stay of proceedings.
This provision with others, promotes arbitration for the achievement of the objectives of the Act-
to provide a speedy, cost-effective, non-adversarial system of dispute resolution.
The case of The Republic v High Court, Tema Ex Parte; My Shipping PVT Limited highlights
the position of the law where an action is filed in respect of a contract containing an arbitration
agreement. In any such pending case, the filing of the action and taking steps in the action does
not oust the jurisdiction of the court to hear the action. It is the duty of the party who wants the
action to be referred to arbitration to timeously raise the objection by the proper procedure
provided by law. It is also the duty of the plaintiff who wants to proceed with the case to convince
the court why the arbitration clause should be disregarded to enable the court to hear the case. A
party served with legal proceedings from a court may, at any time after acknowledging service and
before filing of any pleading or taking any other steps, apply to the court to stay the proceedings,
and this party must not be seen as taking fresh steps in the action. It was also held that the courts
would refrain from staying proceedings of a pending action when the applicant who seeks a stay
of proceedings failed to timeously apply to the court for the stay even though the court has an
inherent jurisdiction to stay its own proceedings.
In De Simone Ltd v Olam Ghana Ltd8, it was held that the trial court rightly concluded that
Section 6(1) of the Act was inapplicable since by filing a defence on merits without raising the
question of arbitration, the right to resort to arbitration was effectively waived by the defendant,

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who could not now ask the court to stay proceedings and refer the matter to arbitration. It meant
logically that the arbitration clause was ineffectual and had ceased to exist.

 Section 7
Under Section 7(1), where an action is brought before the court, and the court is of the view that
the action or part of it may be resolved by arbitration, it may, with the consent of the parties, refer
the matter to arbitration, despite the non-existence of an arbitration agreement.
Furthermore, Section 7(5) provides that where there is any action before the court and the court
realizes that the action is the subject of an arbitration agreement, the court shall stay the
proceedings and refer the parties to arbitration. Accordingly, the Act expressly obliges the courts
to uphold the wishes and autonomy of contracting parties as expressed in the arbitration agreement.
This provision was expanded upon in the case of De Simone Limited v Olam Ghana Limited9
The facts are set out below;
Facts: The Defendant (Olam) employed the services of the plaintiff (De Simone) to construct some
structures for a factory. The terms of engagement were reduced into a contract executed by both
parties. The plaintiff sued the defendant for an alleged violation of the contract. Pleadings closed
and all pre-trial processes came to an end and the actual hearing of the case commenced. The
defendant then filed an application asking the court to refer the parties to arbitration in accordance
with the terms of their contract. This was opposed to by the plaintiff.
The trial court rejected the application for reference to arbitration because it was filed out of time
in view of the provisions of Section 6(1) of the Act, which permits the defendant to apply for the
reference to arbitration after entry of appearance. However, the trial court on its own motion
applied the provisions of Section 7(5) of the Act to refer the parties to arbitration. The plaintiff
appealed against this decision all the way to the Supreme Court.
Issue: The question for determination was whether the court had misconstrued the provisions of
Act 798 by referring the matter to arbitration, regardless of the stage the hearing of the matter at
trial had reached?
Holding/Reasoning: The Supreme Court indicated that Act 798 must be construed as a whole,
not in part, and that where a court is called upon to decide whether or not it may proceed with a
case, notwithstanding the presence of an arbitration agreement in the contract, two provisions must
be considered, i.e. Section 6(1) and Section 7(5).
The court explained that Section 6(1) provides that where one party commences an action in court,
despite the existence of an arbitration agreement, the other party may on entering appearance,
apply to have the action referred to arbitration. What this means is that if the defendant enters an
appearance, and proceeds to file a defence, he is deemed to have waived his right to resort to
arbitration and the court may proceed to hear the case. Thus, the waiver of a defendant's right to

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arbitration is conclusively presumed under Section 6(1) of the Act if the defendant does not raise
it after the entry of ap pearance and goes on to take fresh steps in the matter aimed at defending
the claim. Once the right to resort to arbitration is waived, it meant logically that the arbitration
clause was ineffectual and had ceased to exist.
[It must be noted however that whereas under Section 6(1), a defendant is deemed to have waived
his right to arbitration when he answers on the merits of the case filed in court, the plaintiff under
Section 54(2) is not deemed to waive his right to arbitration simply because he commenced
proceedings in court. This is because a party to an arbitration agreement may commence
proceedings in court, not with an intention to waive his arbitration rights but only for the purpose
of obtaining interim reliefs such as preservation of the subject matter and injunction. However, if
the party to an arbitration agreement who commences court proceedings expressly or by conduct
evinces an intention to waive his arbitration rights, the court will prevent him from resorting to
arbitration subsequently.]
The other provision that concerns the power of the court to make a referral to arbitration is Section
7(5). The court highlighted that although Section 7(5) appears imperative in its language/letter, its
spirit connotes more and that should have been taken into account. The Supreme Court indicated
that if Section 7(5) is to be construed literally, it would mean that even if both parties decide to
waive their rights under the arbitration agreement, the court shall nonetheless compel them to
resort to arbitration. In this case for instance, the defendant, by filing a defence, had waived his
right to arbitration. The plaintiff, by opposing the application for reference to arbitration, also
clearly waived the right to arbitration. Thus, to interpret Section 7(5) as mandatory and compel
the parties to resort to arbitration would lead to an absurdity because it flies in the face of
fundamental principles of the law of contract namely the freedom of contract. Parties to an
arbitration agreement are free to annul it, if both of them act together either expressly or by their
conduct. Consequently, Section 7(5) ought not to be construed literally, but must be has to be
construed in a manner that accords with the principle of freedom of contract and the doctrine of
waiver of arbitration rights that underlie the provisions of the Act. What that means is that the
power conferred on the court under Section 7(5) of the Act may only be exercised where there has
not been mutual waiver by the parties of their arbitration rights. To construe it otherwise would be
to empower the court to overrun the freedom of the parties to annul their arbitration agreement and
resort to the court to have their dispute resolved. Thus, the court could only apply section 7(5) at
any stage in the proceedings before the parties could be said to have waived their right to arbitrate.
Finally, the Supreme Court explained that since the right to resort to arbitration was effectively
waived, the court could not under Section 7(5), compel the parties to resort to arbitration.
However, the court could, with the consent of the parties, still make a reference to arbitration even
after the close of pleadings, under Section 7(1). But the overriding consideration under Section
7(1) is that both parties must agree that a reference be made by the court, not under the arbitration
clause in the contract which has ceased to reign, but by the fact that the matter is considered by the
court as fit for arbitration. Under the Act the only avenue open to the parties after they have waived
the right to arbitration under section 6(1) of the Act is if both parties agree with the court to invoke
the provisions of section 7(1) to make reference to arbitration.

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 Section 11, 13, 14, 16, 17, 32, 49, etc.

The Act in Part 1 does much to recognise and uphold the general principle of party autonomy,
respecting and securing the ability of parties to chose that disputes between them be finally dealt
with by arbitration and to determine how such arbitration will be conducted. Party autonomy is
one essential feature in arbitral proceedings.
These provisions touch on party autonomy, highlighting that parties are free to agree on the place
of arbitration, appointment of and number of arbitrators, among other things.
In Section 14, parties are at liberty to agree on the procedure for appointing an arbitrator. Under
Section 16, parties are free to agree on a procedure for challenging the appointment of an arbitrator,
and may agree also on the circumstances under the appointment of an arbitrator may be revoked.
Additionally, under Section 31, parties are at liberty to agree on matters of procedure. Parties are
also free to agree on the language to be used in the arbitral proceedings under Section 32. Under
Section 49, once arbitral proceedings are concluded, parties are also free to agree on the form of
the award.

 Section 24
Another achievement by the Act which aligns it with international standards is Section 24 which
grants the arbitral tribunal power to rule on its own jurisdiction, particularly in respect of the
existence, scope or validity of the arbitration agreement.
Section 24 recognises the concept of kompetenz-kompetenz. Therefore, the arbitral tribunal can
examine and decide in the first instance any objection to their jurisdiction. However, recourse to
the courts is usually provided to review the arbitrators' ruling on competence.

 Section 50
Section 50 introduces the concept of amiable composition. By submitting to amiable composition,
the parties accept that their disputes are not exclusively resolved on the basis of the rules of the
applicable substantive law, but also equity or what the arbitrator believes to be just and fair.
Article 28(3) of the UNCITRAL Model Law acknowledges this concept if the parties agree, and
authorises the tribunal accordingly. Act 798 however, has gone beyond the UNCITRAL Model
Law provision by vesting power in the tribunal, with or without the parties' agreement, to grant
any relief that the arbitrator considers just and equitable.
 Section 52
Section 52 highlights the effect of an award, and provides that an arbitration award is final and
binding as between the parties and their assigns, i.e. any person claiming through them.

 Section 57
This Section deals with enforcement of domestic awards and provides that an arbitral award may,
with the leave of the High Court, be enforced as a judgment of the court.

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This is also a progressive innovation allowing arbitration awards to be enforced in the same manner
as a judgment of the courts.
 Section 59
This Section deals with the enforcement of foreign awards, and provides that the High Court shall
enforce a foreign award if:
- It was made by competent authority under the laws of the country where it was made
- A reciprocal arrangement exists between Ghana and that country or the award was made
under the New York Convention or any other international convention ratified by
Parliament, and
- That party seeking to enforce the award has produced the original award or an authenticated
copy and the main agreement pursuant to which the award was made
- No appeal is pending against the award in any court

The above have highlighted some of the key strengths of Act 798 as regards arbitration, and the
extent to which they are in harmony with international rules of arbitration. However, there are
certain weaknesses of the Act reflected in certain provisions. These are highlighted below:
1. The Scope of the application of the Act
An unfortunate provision that sets the Act backward is the provision on arbitrability.
Section 1 of the Act sets out the matters which are not arbitrable, i.e. matters that relate to;
- National or public interest
- The environment
- Constitutional interpretation and enforcement
- Any other matter which by law cannot be submitted to arbitration.
The problem here is that these provisions are imprecise or nebulous, and it is difficult to identify
matters that may fall under this category.
National or public interest is not defined in Act 798. In the absence of definitions for these terms
one has to look elsewhere in Ghanaian law for the meanings attributable to them
Public interest is defined by Article 295(1) of the Constitution to ‘include any right or advantage
which enure to the benefit generally of the whole of the people of Ghana.’ The use of the word
“include” by the Constitution demonstrates the open-ended nature of the definition.
National interest is defined in Section 98 of the Public Procurement Act, 2003 (Act 663) as ‘a
condition where the nation attaches high value, returns, benefit and consideration to the matter in
question’.
The definitions are so broad that most transactions entered into by or on behalf of the government
will be caught by it.

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Again, with matters relating to the environment, the term is not defined. The scope of and rationale
for the exemption is not given. Exclusion of environmental issues from the ambit of the Act is one
setback to the purpose of bringing the Act in line with international standards. Most environmental
issues are now resolved through ADR. In Ghana, ADR can be employed to settle some disputes
such as refuse dumping sites, resettlement of communities like “Sodom and Gomorrah”.
Finally, under the 1992 Constitution, the Supreme Court has exclusive original jurisdiction in all
matters relating to the enforcement and interpretation of the Constitution.
This power is only subject to powers granted to the High Court under Article 33 to enforce human
rights provisions under the constitution. Exempting matters of constitutional interpretation and
enforcement from the scope of Act 798 is thus in accord with the provisions of the supreme law
of Ghana.
The exemption with regard to the enforcement and interpretation of the Ghanaian constitution
appears clear and sensible. What constitutes a matter of interpretation and enforcement of the
provisions of the Constitution however, has been the subject matter of judicial decisions and has
been thought to be well-settled. However, this provision surprisingly generated the first
controversy under Act 798 in the Balkan Energy case, on whether or not a transaction to which
government was a party constituted an international business or economic transaction under
Article 181(5). Such a question cannot be submitted to an arbitral tribunal for an award.

2. The Act allows parties to make reference to the High Court for determination on
preliminary issues
Section 40 provides that unless otherwise agreed by the parties, the High Court may on an
application on notice to the other party by a party to arbitral proceedings, determine any question
of law that arises in the course of the proceedings if the court is satisfied that the question
substantially affects the rights of the other party.
The decision of the High Court on the question of law shall be treated as a judgment of the Court
for the purpose of an appeal.
It would be a serious setback to the arbitral process if at any point in time a party is empowered to
apply to the High Court to seek a determination of a question of law which can otherwise be
determined by the arbitral tribunal.
This defeats the purpose of the parties being able to settle the issue at arbitration. As by the parties
selection, they deem the arbitrators competent to determine all matters, including issues on point
of law... if the point is referred to the court, the arbitration is not stayed but proceeds. So in an
event when an award is given prior to the determination of the point of law, what then happens.

3. Excessive power is given to the court to intrude on the arbitration process

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Another weakness is the excessive power given to the court to intrude on the arbitration process.
Unlike the UNCITRAL Model Law, there is no provision that limits the intrusiveness of the courts
in arbitration. Act 798 gives expansive powers to the court to intervene at certain points in the
arbitral process. Section 18 for instance, grants the court power to remove an arbitrator.
Kenya for instance, in Section 10 of the Kenyan Arbitration Act of 1995, explicitly provides that
no court shall intervene in matters governed by the Act.
There is a similar provision in the Nigerian Act which provides that no court shall intervene in any
matter governed by the Nigerian Act except where so provided for in the Act.

4. Establishment of the ADR Centre under the Act

The Act provides for the establishment of a body termed the “Alternative Dispute Resolution
Centre” (the “ADR Centre”), the stated objective of which is “to facilitate the practice of
alternative dispute resolution”38. The extensive functions of the ADR Centre include the
maintenance of a register of arbitrators, the provision of a list of arbitrators to persons requesting
the services of arbitrators, the provision of guidelines with regard to arbitrators’ fees and the
periodic review of the terms of the Act (recommending changes if necessary)3
While some people commend the establishment of an ADR Centre under the Act to facilitate ADR
in Ghana, others are skeptical of the fact that it is a State institution and some of its members and
the Chair are appointed by the president. According to the skeptics, the involvement of government
in the membership makes it unattractive to investors who normally do not trust governments so
much.
The most worrying provision in the creation of the ADR Centre is while the Centre on the one
hand is described in the Act as independent and shall not be under the direction or control of any
person or authority in the performance of its functions, in another breath, the President has been
vested with power to appoint and revoke the appointment of the chairperson and members of the
governing Board of the Centre. No investor will want to be part of an arbitration Centre under the
control of Government. This is indeed a minus and the most regressive part of the Act.

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Overview of Act 798 as regards Mediation

Part 2 of Act 798 governs mediation.

 Party Autonomy
Party autonomy is emphasized again in Part Two. In Section 63, a party to an agreement may with
the consent of the other party, submit any dispute arising out of that agreement to mediation by an
institution or a person agreed on by the parties. There is no requirement for a prior agreement by
the parties to submit any disputes arising out of the agreement to mediation.
Under Section 65, parties to a mediation agree on the number of mediator(s), and Section 66
provides that the parties may appoint any person/institution to serve as mediator. Parties may also
determine the place for the mediation under Section 72, subject to the mediator choosing a
convenient place.
A party to a mediation may also withdraw from mediation at any time before mediation ends by
making a declaration to the mediator and the other party that the mediation is terminated.
This affirmation of party autonomy in dispute resolution provides satisfaction for parties and the
readiness to comply with settlement agreements, a feature very different from the court system,
where lawyers and judges rather take control making parties whose disputes are in court feel
sidelined.
 Submission to Mediation
Under Section 63, parties may submit their dispute to mediation. Submission to mediation may be
written or oral. Mediation may be made by writing, telephone or other form of verbal
communication, fax, telex, email or any other electronic mode of communication and shall briefly
state the nature of the dispute
Where it is oral, it must be confirmed in writing unless the parties agree otherwise.
Mediation proceedings commence when the other party accepts the invitation for mediation.
Acceptance of an invitation for mediation may be by letter, telephone or other form of verbal
communication, fax, telex or email or other mode of electronic communication.
Acceptance by verbal means shall be confirmed in writing, but failure to confirm in writing shall
not invalidate the proceedings.

 Reference to mediation
Similar to the provisions on arbitration, under Section 64, a court before which an action is pending
may, at any stage in the proceedings, refer the matter or that part of the matter to mediation, if the
court is of the view that mediation will facilitate the resolution of the matter or a part of the matter.
Even more, a party to an action before a court may, with the agreement of the other party and at
any time before final judgment is given, apply to the court on notice to have the whole action or
part of the action referred to mediation.

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Where reference leads to settlement, it shall be drawn up and filed in court, and shall be recorded
as a judgment of the court and enforced as such.
 Powers of the Mediator
Although mediation is a party process, Section 74 still bestows the mediator with some powers all
in a bid to facilitate the mediation process. Caucusing, a popular procedure in mediation is
statutorily affirmed by the Act.
Under Section 74, a mediator may conduct joint or separate meetings with the parties and make
suggestions to facilitate settlement.
Also, the mediator may, where necessary and if the parties also agree to pay the expenses, obtain
expert advice on a technical aspect of the dispute. This provision is commendable because
realistically, not every issue in the mediation can be expertly dealt with by the mediator. Thus, it
is necessary to obtain the advice of an expert where necessary to resolve the dispute efficiently

 Settlement Agreement
Under Section 81, where it appears to the mediator that there are elements of a settlement which
is acceptable to the parties, he may formulate the terms of a possible settlement and submit them
to the parties for their consideration.
Where the parties reach agreement on the settlement of the dispute, they may draw up and sign a
written settlement agreement, popularly known as the mediation agreement. This must be signed
by both parties and the mediator.
When the parties sign the settlement agreement, they are deemed to have agreed that the settlement
is binding on them and any persons claiming through them.
Under Section 82, where the parties agree that a settlement is binding, the settlement agreement
has the same effect as if it is an arbitral award.
It is important to always incorporate whatever settlement that was reached at the mediation session
into an agreement, because even though parties may be agreed, once a settlement agreement is not
executed and signed, that agreement is not enforceable against the other party, who is free to walk
away from the mediation.

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Overview of Act 798 as regards Negotiation

There has been debate on the existence or otherwise of negotiation under Act 798. Some have
argued that Ghana’s ADR Act makes no provision for negotiation as an alternative means of
dispute resolution, whereas others have argued that this is not the case.
The various arguments are highlighted below:
Arguments AGAINST existence of negotiation in the Act:
 The long title of the Act does not include negotiation. It only provides for settlement of
disputes by arbitration, mediation and customary arbitration. By virtue of the expressio
unius est exclusio alterius canon of interpretation, the specific mention of a word or phrase
means the exclusion of those not mentioned.
 Conciliation, which is not included in the long title is defined but negotiation is not.
 All ADR mechanisms mentioned in the Act involve a neutral 3rd party but negotiation does
not
 Act provides for negotiated settlements [under customary arbitration] but not negotiation
simpliciter – s. 113.
 It’s unclear how a settlement resulting from a negotiation will be enforced unlike for
arbitral awards and mediation settlements which, with leave of the court, can be enforced
as judgments of the court. Do parties have to initiate fresh action in the court to enforce?

Arguments FOR existence of negotiation in the Act:

 There are provisions which imply that the Act recognises negotiation even if it doesn’t
mention it expressly.
 The long title adds that the Act covers ‘other related matters’. Using the ejusdem generis
canon of interpretation, where general words following an enumeration of words of the
same class or genus, the general words will be deemed to cover other similar words of the
same genus.
 Short title is ADR and negotiation is a mechanism of ADR.
 Definition of ADR in the interpretation section – s. 135 – the collective description of
methods of resolving disputes otherwise than through the normal trial process. This
captures negotiation.
 Tribunal encouraged to use mediation and ‘other procedures’ to encourage settlement – s.
47. This may include negotiation since it’s an ADR mechanism.
 Negotiation for a settlement - s. 113.
 Regulations to be made by the Minister pursuant to s. 134 may cover negotiation even if
the Act itself doesn’t because the Act provides that the L.I. may cover “other voluntary
dispute resolution procedures”.
 Inference from all the provisions on party autonomy deal with negotiation because in order
for the parties to agree, there must be negotiation.

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ARBITRATION – PART II

Application for Stay of Proceedings

Under Section 6 of the Alternative Dispute Resolution Act, 2010 (Act 798), where there is an
Arbitration Agreement, and a party commences an action in court, the other party may, on entering
appearance, and on notice to the party who commenced the action in court, apply to the court to
refer the action or part of the action to which the Agreement relates, to arbitration.
Once the application is heard and the court is of the view that the matter in respect of which the
application was made is a matter in respect of which there is an Arbitration Agreement, the court
must refer the matter to arbitration.
The grant of the application serves as a stay of proceedings in the court.
All applications must go to the High Court at first instance. The applicant must first enter
appearance in court, and then proceed to apply for stay of proceedings.
A typical application would consist of the Motion paper and a Supporting Affidavit. Examples are
laid out below:

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IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
ACCRA – AD 2022
SUIT NO
BETWEEN

KWEKU FRIMPONG ……………………………….PLAINTIFF/RESPONDENT

Telecom Gbawe, Accra

AND

ATTA ADWOA ………………………………………DEFENDANT/APPLICANT

No 7, East Legon

MOTION ON NOTICE FOR APPLICATION TO STAY PROCEEDINGS PURSUANT TO

SECTION 6 OF THE ALTERNATIVE DISPUTE RESOLUTION ACT, 2010 (ACT 798)

TAKE NOTICE THAT this honourable court shall be moved by Counsel for the
Defendant/Applicant praying for an order to stay proceedings of the instant suit upon grounds
contained in the accompanying affidavit.
AND FOR ANY other or further order(s) that this court may deem just.

COURT TO BE MOVED ON ………..THE……….DAY OF……………OF 2022

(Signed)
Lawyer for Defendant/Applicant
The Registrar
High Court
Accra
AND COPY FOR SERVICE ON THE PLAINTIFF/RESPONDENT OR HIS COUNSEL

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IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
ACCRA – AD 2022
SUIT NO J1B2
BETWEEN

KWEKU FRIMPONG ……………………………….PLAINTIFF/RESPONDENT

Telecom Gbawe, Accra

AND

ATTA ADWOA ………………………………………DEFENDANT/APPLICANT

No 7, East Legon

AFFIDAVIT IN SUPPORT

I, Atta Adwoa of House Number 7, do make oath and say as follows:

1. That I am the Defendant and Applicant herein.

2. That the Plaintiff / Respondent caused a writ of summons to be issued and served on me.

3. That there is an arbitration clause in our main agreement, attached as Exhibit B.

4. That the said arbitration agreement deals with the matter that has arisen.

5. That I am furthermore informed and verily believe that in the circumstances, there is the
need to pray for an order staying proceedings.

Wherefore, I swear to this affidavit in support of counsel’s prayer for an order staying
proceedings herein.

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Party Autonomy under Act 798

Party autonomy as indicated earlier, is one of the main principles of international arbitration, and
to some extent has been implemented in Act 798. These provisions touch on party autonomy,
highlighting that parties are free to agree on the place of arbitration, appointment of and number
of arbitrators, among other things.
This Section looks the following:
 Provisions which grant party autonomy
Section 11(1) – Parties are free to agree on the place of arbitration.
Section 13 – Parties are free to determine the number of arbitrators, although it must be an
odd number.
Section 14 - Parties are at liberty to agree on the procedure for appointing an arbitrator.
Section 16 – Parties are free to agree on a procedure for challenging the appointment of an
arbitrator.
Section 17 - Parties may agree also on the circumstances under which the appointment of an
arbitrator may be revoked.
Section 31 - Parties are at liberty to agree on matters of procedure.
Section 32(1) - Parties are also free to agree on the language to be used in the arbitral
proceedings.
Section 49 - Once arbitral proceedings are concluded, parties are also free to agree on the
form of the award.
 Provisions which tamper with/undermine party autonomy
Section 11(2) – In the absence of an agreement by the parties, the arbitral tribunal determines
the place of arbitration.
Section 32(2) - In the absence of an agreement by the parties, the arbitral tribunal determines
the language of the proceedings.
Section 26
Section 40 Khoury v Khoury
Section 56(1)
 Provisions which grant the court a supportive role in arbitration proceedings
Section 7(5)
Section 39
Section 57

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Section 59

Case Management Conference / Preliminary Meeting / Procedural Meeting

After pleadings have been filed (i.e. the Request for Arbitration and the Response), and arbitrators
appointed, the next step is the Case Management Conference. This is also known as the
Preliminary meeting or the Procedural Meeting.
When an arbitral tribunal has been constituted, it is for the tribunal to convene a meeting to
determine the future conduct of the arbitration proceedings.
It is a regular and essential feature of arbitration proceedings. It enables the Tribunal and the parties
to meet and to provide directions for the conduct of the reference. The case management
conference provides the mechanism for determining the manner in which the arbitration will be
conducted.
The need for an actual meeting will depend on the extent to which the procedure and any directions
to be sought from the tribunal can be agreed between the parties.
The overriding procedural obligation of a Tribunal in conducting Case Management Conference
is as follows:
- To comply with any express mandate laid down by the parties
- To conduct the process fairly and evenhandedly
- To use all reasonable dispatch in entering on and proceeding with the reference
A Case Management Conference cannot be held until 2 primary things happen:
1) The Tribunal ought to have been appointed. The tribunal must be in place

2) The Tribunal must be provided with information as to the principal issues

Preparation towards Case Management:

o The arbitrators, the parties and their lawyers should arrange well in advance of the meeting.

o A key aspect of the preparation is the formulation of an agenda, which is normally prepared
by the Tribunal.
Section 29 of Act 798 sets out the matters to be covered in the agenda.
o The parties and the Tribunal will also decide whether the case management meeting will
be held in person or virtually
In addition to the matters covered under Section 29, when the parties meet, they must:
- Confirm their identity

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- Present a copy of the notice of arbitration

- Confirm the arbitrators/tribunal and present a notice of the appointment
- Present a copy of the arbitration agreement
- Confirm that the arbitrator has jurisdiction over the dispute
- Consider the law on rules applicable to the arbitration
- Isolate any mandatory laws on the seat of arbitration
- Allocate time for cross-examination
- Decide whether there will be a bifurcation of the hearing
- Decide on the form of the award

The Arbitral Award

The arbitral award is simply the decision in the arbitration as decided by the arbitrator or tribunal.
An arbitral award is final and binding, and the losing party is obliged to honour the terms of the
award. There is an implied term in an Arbitration Agreement that the parties will carry out the
award. Thus, even if the winning party is dissatisfied with parts of the award, he is still bound by
it.
Once an award is delivered, the losing party has a number of options:
1) He may comply voluntarily

2) He may use the award as the basis for a negotiation

3) He may challenge the award under the relevant law (the seat of arbitration)

4) He may resist any attempt by the winning party to obtain recognition and enforcement of
the award.

Enforcement of an award:
There are 4 ways an award can be enforced in a national legal system, namely;
1. The award would be deposited and registered with the court
2. In some jurisdictions, the laws provide that you have to seek leave of the court and have
the award enforced directly
3. In some jurisdictions you apply to the court for recognition of the award before
enforcement
4. You may sue on the award as evidence of a debt on the basis that the arbitration agreement
constitutes a contractual obligation to perform the award.
It should be noted that each countries adopts its own method of enforcement. In Ghana,
enforcement is done under Section 57 under the ADR Act. One must seek leave to enforce the
award.

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Principles governing the recognition and enforcement of Arbitral Award

This is concerned with giving effect to the arbitration award, either in the State in which the
award was made, or in the territory of another State where the award is being sought to be
enforced.
Here, it is necessary to distinguish between a domestic award and a foreign award.
There is a distinction between enforcement of an award in the State where the award was made,
i.e. the seat of arbitration, and the enforcement of an award in the territory of another State.
Different principles govern the two.
If you are seeking to enforce the award in a State other than the seat of arbitration (where the
award was made), the award would be a foreign/international award, whereas an award which is
being enforced within the territory of the State where it was made (the seat of arbitration), is
considered a domestic award.
Enforcement of a domestic award is a relatively simple process as compared to the enforcement
of a foreign award.

Enforcement of an award at the Seat of Arbitration (Domestic award)

One needs to look at the arbitration law of that particular country in order to determine how to
enforce a domestic award. In Ghana, Section 57 of Act 798 outlines the process for the
enforcement of a domestic award. It provides as follows:
Section 57 of Act 798:
(1) An award made by an arbitrator pursuant to an arbitration agreement may, by leave of the
High Court, be enforced in the same manner as a judgment or order of the Court to the same
effect.
(2) Where leave is so given, judgment may be entered in terms of the award
(3) Leave to enforce an award shall not be given where, or to the extent, that a person against
whom the award is sought to be enforced shows that the arbitrator lacked substantive jurisdiction
to make the award.
Accordingly, one must obtain leave of the court to have the award enforced in the same manner
as a judgement/order of the court.
The application is done by way of an originating motion on notice (this is particularly so
because it is not a matter already in court). The application contains the motion paper and
supporting affidavit.

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IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
COMMERCIAL DIVISION
ACCRA A.D. 2022
Suit No___
IN THE MATTER OF THE ALTERNATIVE DISPUTE RESOLUTION ACT, 2010 (ACT 798)
IN THE MATTER OF ARBITRATION UNDER THE RULES OF THE GHANA ARBITRATION
CENTRE
AND
IN THE MATTER OF AN APPLICATION FOR LEAVE TO ENFORCE AN AWARD UNDER
SECTION 57 OF THE ALTERNATIVE DISPUTE RESOLUTION ACT, 2010 (ACT 798)
BETWEEN

YAW OPPONG JUNIOR APPLICANT

Asanka Avenue, East Legon

AND

KWAKU FRIMPONG RESPONDENT

Okro Street, Dansoman

MOTION ON NOTICE FOR LEAVE TO ENFORCE AN ARBITRAL AWARD PURSUANT TO

SECTION 57 OF THE ALTERNATIVE DISPUTE RESOLUTION ACT, 2010 (ACT 798)

TAKE NOTICE THAT this Honourable Court will be moved by counsel for and on behalf of the
Applicant, praying this Honourable Court for leave to enforce an arbitral award made in favor of the
Applicant and against the Respondent by the Ghana Arbitration Centre, on the grounds contained in the
accompanying affidavit.
AND FOR ANY other FURTHER or other order(s) as to this honourable court may deem just and fit.
Court to be moved on the … day of ….. 2022 at 9 o’clock in the forenoon or so soon thereafter as counsel
may be heard.
DATED AT BENTSI-ENCHILL & ASSOCIATES, ACCRA THIS 7TH DAY OF MARCH 2022

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(Signed)
HARVEY SPECTOR
LAWYER FOR THE APPLICANT
THE REGISTRAR
HIGH COURT
COMMERCIAL DIVISION
ACCRA
AND FOR SERVICE ON THE ABOVE-NAMED RESPONDENT

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IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
COMMERCIAL DIVISION
ACCRA A.D. 2022
Suit No___
IN THE MATTER OF THE ALTERNATIVE DISPUTE RESOLUTION ACT, 2010 (ACT 798)
IN THE MATTER OF ARBITRATION UNDER THE RULES OF THE GHANA
ARBITRATION CENTRE
AND
IN THE MATTER OF AN APPLICATION FOR LEAVE TO ENFORCE AN AWARD
UNDER SECTION 57 OF THE ALTERNATIVE DISPUTE RESOLUTION ACT, 2010 (ACT
798)
BETWEEN

YAW OPPONG JUNIOR APPLICANT

Asanka Avenue, East Legon

AND

KWAKU FRIMPONG RESPONDENT

Okro Street, Dansoman

AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE FOR LEAVE TO ENFORCE AN

ARBITRAL AWARD PURSUANT TO SECTION 57 OF ACT 798

I, YAW OPPONG JUNIOR of Asanka Avenue, East Legon in the Greater Accra Region of the
Republic of Ghana, do make oath and say as follows:
1. That I am the deponent herein

2. That by a Contract dated 1st January, 2022, the Respondent (as Contractor) agreed to
build for myself 100 apartments on land situate at East Legon.

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3. That the Contract contained an Arbitration Agreement. Attached and marked as Exhibit
A is a copy of the Agreement.

4. That a dispute arose and I commenced arbitration pursuant to clause 52 of the Contract.
An arbitral Tribunal was constituted consisting of [names]

5. That arbitration proceedings were held and on [date] the Tribunal published its award.
Attached and marked as Exhibit B is a copy of the award.

6. That the Tribunal awarded to me the sum of GH₵550,000 comprising of the following:

a) GH₵500,000 as damages for breach of contract

b) GH₵50,000 costs

7. That the Respondent has failed to pay any part of the sums so awarded and due to the
Respondent’s unwillingness to comply with the award, I am invoking the jurisdiction of
the court under Section 57.

Wherefore, in the circumstances, I swear to this affidavit in support of the instant application.

SWORN TO AT ACCRA
THIS 7TH DAY OF MARCH 2022 DEPONENT

BEFORE ME

COMMISSIONER FOR OATHS

THE REGISTRAR
HIGH COURT
COMMERCIAL DIVISION
ACCRA
AND FOR SERVICE ON THE ABOVE-NAMED RESPONDENT

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Recognition vs Recognition & Enforcement

It is important to note that there is a difference between mere recognition of an award on one
hand, and recognition and enforcement of an award on the other.
Recognition of an award may be used/raised as a defence where a party commences an action in
court to seek a remedy which has previously been determined in arbitration proceedings.
Basically, where parties are in court for an issue that has been determined at arbitration, the
defendant may raise the award delivered by the Tribunal in the form of res judicata, asking the
court to recognize the award such that the plaintiff can not re-litigate the matter, but not to
necessarily enforce the award. It is merely an acknowledgement of the legal force of the award.
Recognition and enforcement on the other hand, involves not merely recognizing the award, but
ensuring that the award is carried out by using legal sanctions as are available against the losing
party.
Thus, mere recognition is a shield to block the re-litigation of matters that have already been
decided. It is a defensive process in which a party to an arbitration asks the court to recognize an
award as valid and binding on the parties in respect of the issues with which it dealt. Recognition
and enforcement however, is a sword by which legal sanctions are used to compel a party to
carry out the award.

The Place of Recognition and Enforcement of an Award

When seeking recognition of an award only, you do that in the court where the defaulting party
has commenced an action in spite of the award.
When seeking recognition and enforcement of an award, it must be done in a forum where the
losing party has assets/property to satisfy the award

Types of Awards
There are 4 types of Arbitral Awards:
 Final Awards
This is what brings the arbitral mission to a close and and the effect of a final award is that it
brings finality to the arbitral proceedings, terminating the arbitration proceedings and the
mandate of the arbitral tribunal. When a final award is issued, the Arbitral Tribunal becomes
functus officio.
A tribunal must not issue a final award until it is satisfied that its mission is complete. If there
are outstanding matters to be dealt with, then a final award can not be issued.

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 Partial / Interim Award

Partial awards deal with part only of the issues for determination before the Tribunal, and this
usually happens where the parties agree to a bifurcation of the issues.
Interim awards are an effective way of determining matters during the course of proceedings
to save time and money. It is a provisional award dealing with issues pending a final award.
An arbitral award may issue an interim award on jurisdiction or preservation of property. The
rationale for interim awards is to save the parties from going through the rigours of an
arbitration hearing.
Whether a Tribunal has power to issue a partial/interim award may be derived from the
Arbitration Agreement or the applicable law or the institutional rules adopted by the parties.

 Default Award
A default award is one made when one party fails/defaults to participate in the arbitral
proceedings.
However, under certain rules of arbitration, a Tribunal must test the assertions made by the
active party, i.e. to say, the default award must take into consideration the merits of the case
before it is issued.

 Consent Award
These are awards issued where the parties have reached a settlement and agreed to terms
which are then incorporated in an award.

Enforcement of Foreign Awards in Ghana

To enforce a foreign award in Ghana, i.e. an award that was not made in Ghana, you need to
come under Section 59 of Act 798. The High Court is vested with jurisdiction to enforce such
awards.
There are strict requirements to comply with before enforcing a foreign award in Ghana. Under
Section 59, the High Court will enforce a foreign arbitral award if the following requirements are
met:
1) The award must have been made by a competent authority under the laws of the country
in which the award was made, AND

There must exist a reciprocal arrangement between Ghana and the country in which the
award was made, OR the award must be made under the New York Convention or any
other international convention on arbitration ratified by parliament

2) The party seeking to enforce the award must:

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- Produce the original award or a copy of the award authenticated in the manner prescribed
by the law of the country in which it was made,

- Produce the Arbitration Agreement pursuant to which the Award was made or a copy of
it duly authenticated in the manner prescribed by the law of the country in which it was
made or in any other manner as may be sufficient according to the laws of Ghana, and

- Show that there is no appeal pending (i.e. no application to set aside the award) against
the award in any court under the law applicable to the arbitration.
Note also that where a party who seeks to enforce a foreign award relies on a document which is
not in the English Language, that party must produce a certified true translation of that document
in English to the Court.
As indicated, under Section 59, there must exist a reciprocal arrangement between Ghana and
the country in which the award was made, OR the award must be made under the New York
Convention (the country where the award is coming from must be a signatory to the New York
Convention) or any other international convention on arbitration ratified by parliament.
With respect to the reciprocal arrangement, previously when the old Arbitration Act was in
existence, the Arbitration (Foreign Awards) Instrument, 1963 (LI 261) was passed, setting
out countries that have a reciprocal arrangement with Ghana for the enforcement of award. If the
country in which the award was obtained is listed under LI, then same can be enforced in Ghana.
The L.I. 261 is still in existence, however some of the countries listed have either seized to exist,
etc, and thus the L.I. needs to be amended.

It is worthy of mention that the reciprocal arrangement must exist as at the time of application
for the enforcement of the award and not at the time the award was made. In Strojexport v
Edward Nassar & Co. (Motors) Ltd10, arbitration awards were made in Prague,
Czechoslovakia , in 1962 in favour of the applicants against the respondents. At the time of the
awards, Czechoslovakia was not one of the reciprocating states under the Arbitration Act, 1961
(Act 38) , but subsequently became on in 1963. The question for the consideration of the court
was whether the awards were enforceable in Ghana. It was held by Hayfron Benjamin J (as he
then was) that the arbitration awards made against the respondent in Czechoslovakia were
enforceable in Ghana as foreign awards under the Arbitration Act, 1961, even though at the time
they were made Czechoslovakia had not been declared a reciprocating state under the Act.
With regards to the New York Convention, it contains principles for the recognition and
enforcement of foreign arbitral awards. The New York Convention resulted form an international
effort to make arbitration a more certain and efficient means of resolving international disputes.
About 169 States are contracting parties to the Convention. Ghana ratified the convention on the
9th of April, 1968. By virtue of section 59 of Act 798, a foreign Arbitral award can be enforced
10
[1965] GLR 591

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under the convention. The convention has been incorporated under the ADR Act, specifically the
first schedule.
The essence of the Convention is to secure to a considerable degree, conformity in the
recognition and enforcement of awards. Because awards are transportable, the New York
Convention provides a mechanism from which an award made in one country may be enforced
in another. It has the widest scope of application in the territory of its signatory states, and
irrespective of the rules under which the arbitration was conducted, the Convention may be used
to enforce the award.
It is essential to note that the New York Convention does not apply to domestic awards.
In applying to enforce a foreign arbitral award, you once again come by an originating motion,
comprising of the motion paper and the supporting affidavit:
NB: In the affidavit, you need to:
- Make reference to the relationship between the parties
- Indicate that the parties entered into an arbitration agreement and attached is a duly
authenticated copy
- Give a narration of the dispute that arose between the parties
- Make reference to the rules for the conduct of the arbitration proceedings and the
appointment of the tribunal
- Make reference to the conduct of arbitration proceedings culminating in the award and
indicate that a duly authenticated copy is attached
- Indicate that the award is not the subject-matter of an appeal in any country

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IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
COMMERCIAL DIVISION
ACCRA, GREATER ACCRA
A.D. 2022

SUIT NO. …………………

IN THE MATTER OF THE ALTERNATIVE DISPUTE RESOLUTION ACT, 2010 (ACT 798)

IN THE MATTER OF AN ARBITRATION UNDER THE ICC ARBITRATION RULES

AND

IN THE MATTER OF THE ENFORCEMENT OF A FOREIGN ARBITRAL AWARD

PURSUANT TO SECTION 59(1)(C) OF THE ALTERNATIVE DISPUTE RESOLUTION,
ACT (ACT 798)

BETWEEN

YAW OPPONG JUNIOR CLAIMANT/APPLICANT

Asanka Avenue, East Legon

AND

KWEKU FRIMPONG RESPONDENT

Okro Street, Dansoman

MOTION ON NOTICE FOR LEAVE TO ENFORCE A FOREIGN ARBITRAL AWARD

PURSUANT TO SECTION 59(1)(C)

TAKE NOTICE that this Honorable Court will be moved by Counsel for and on behalf of the
Claimant/Applicant on the …….. day of …... 2022 at 9 am in the forenoon or so soon thereafter
as Counsel for the Claimant/Applicant may be heard, praying this Honorable Court for leave to
enforce a foreign arbitral award made in favor of the Claimant/Applicant and against the
Respondent by the International Chamber of Commerce on the grounds stated in the accompanying
affidavit.

AND FOR ANY other orders this court deems fit and proper

DATED THIS ….. DAY OF …, 2022 AT BENTSI-ENCHILL & ASSOCIATES, ACCRA.

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(SIGNED)
HARVEY SPECTOR
LAWYER FOR THE RESPONDENT

THE REGISTRAR
HIGH COURT
COMMERCIAL DIVISION
ACCRA

AND COPY FOR SERVICE ON THE ABOVE-NAMED RESPONDENT

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IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
COMMERCIAL DIVISION
ACCRA, GREATER ACCRA
A.D. 2022
SUIT NO. …………………
IN THE MATTER OF THE ALTERNATIVE DISPUTE RESOLUTION ACT, 2010 (ACT 798)
IN THE MATTER OF AN ARBITRATION UNDER THE ICC ARBITRATION RULES
AND
IN THE MATTER OF THE ENFORCEMENT OF A FOREIGN ARBITRAL AWARD
PURSUANT TO SECTION 59(1)(C) OF THE ALTERNATIVE DISPUTE RESOLUTION,
ACT (ACT 798)
BETWEEN
YAW OPPONG JUNIOR CLAIMANT/APPLICANT
Asanka Avenue, East Legon

AND
KWEKU FRIMPONG RESPONDENT
Okro Street, Dansoman

MOTION ON NOTICE FOR LEAVE TO ENFORCE A FOREIGN ARBITRAL AWARD

PURSUANT TO SECTION 59(1)(C)

I, YAW OPPONG JUNIOR of Asanka Avenue, East Legon in the Greater Accra Region of the
Republic of Ghana, do make oath and say as follows:
1. That I am the deponent herein
2. That by a Contract dated 1st January, 2022, the Respondent (as Contractor) agreed to
build for myself 100 apartments on land situate at East Legon.
3. That the Contract contained an Arbitration Agreement. Attached and marked as Exhibit
A is a duly authenticated copy of the Agreement.

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4. That a dispute arose and I commenced arbitration pursuant to clause 52 of the Contract.
An arbitral Tribunal was constituted consisting of [names]
5. That arbitration proceedings were held and on [date] the Tribunal published its award.
Attached and marked as Exhibit B is a duly authenticated copy of the award.
6. That the Tribunal awarded to me the sum of GH₵550,000 comprising of the following:
a) GH₵500,000 as damages for breach of contract
b) GH₵50,000 costs

7. That the Respondent has failed to pay any part of the sums so awarded and due to the
Respondent’s unwillingness to comply with the award, I am seeking leave to enforce the
award, pursuant to Section 59(1)(c) of the Alternative Dispute Resolution Act.

8. That to the best of my knowledge and belief, there is no appeal pending against the award
in any court under the law applicable to the arbitration
Wherefore, in the circumstances, I swear to this affidavit in support of the instant application.

SWORN TO AT ACCRA
THIS 7TH DAY OF MARCH 2022 DEPONENT

BEFORE ME

COMMISSIONER FOR OATHS

THE REGISTRAR
HIGH COURT
COMMERCIAL DIVISION
ACCRA
AND FOR SERVICE ON THE ABOVE-NAMED RESPONDENT

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Resisting the Enforcement of an Award

As indicated earlier, once an award is delivered, the losing party has a number of options:
1) He may comply voluntarily

2) He may use the award as the basis for a negotiation

3) He may challenge the award under the relevant law (the seat of arbitration)

4) He may resist any attempt by the winning party to obtain recognition and enforcement of
the award.

Resisting a foreign award

The losing party may resist the attempt to recognize and enforce the award by filing an affidavit
in opposition on the following grounds set out in Section 59(3):
- You can allege that the award has been annulled in the country where it is coming from
- That the party against whom the award is being invoked was not given sufficient notice
to present his case (constituting a breach of natural justice)
- That the party against whom the award is being enforced lacks legal capacity and was not
represented during the arbitration
- That the award deals with a matter that is beyond the scope of the matters submitted for
arbitration
Resisting a domestic award
A losing party may resist a domestic award under Section 57(3) if he shows that the arbitrator
lacked substantive jurisdiction to make the award. To that end, an application may be brought
praying that the award should not be enforced.
This shows the sole ground on which enforcement may be resisted is the absence of jurisdiction.
When can it therefore be said that an arbitrator or arbitral tribunal lacks substantive jurisdiction
to make an arbitral award? The English courts have identified some of these circumstances :
 When issues are decided outside the scope of the arbitration agreement
It has been held that where an arbitrator’s jurisdiction is limited in scope by the terms of the
arbitration agreement, and the arbitrator considers issues beyond his scope, those parts of the
award will not be enforced due to lack of jurisdiction.
 Where the arbitrators appointment is defective
It has been also held by the English courts that if the mechanisms for appointing an arbitrator
contained in the contract expressly or by reference to institutional rules had not been

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complied with, whether because consent had not been sought or the way arbitration
appointed, there is a lack of jurisdiction
 Where there is no written arbitration clause
The arbitrator will lack jurisdiction where there is no written arbitration clause submitting the
dispute to arbitration.

Challenging an Award
An award is final and binding. It cannot be appealed against, but under Section 58, it can be set
aside by a party to the arbitration. Thus, a non-party cannot set aside or challenge an award. Commented [JE9]: There is a case in support of this, but I
believe there was also a contrasting case.
An application to set aside an award must be made to the High Court within 3 months from the
date on which the applicant received the award, based on the grounds in Section 58(2) which
are:
- a party to the arbitration was under some disability or incapacity
- the law applicable to the arbitration agreement is not valid
- the applicant was not given notice of the appointment of the arbitrator or of the
proceedings or was unable to present the applicants case
- the award deals with a dispute not within the scope of the arbitration agreement or
outside the agreement, except that the Court shall not set aside any part of the award that
falls within the agreement
- there has been failure to conform to the agreed procedure by the parties
- the arbitrator has an interest in the subject matter of arbitration which the arbitrator failed
to disclose
Section 58(3) further provides that The Court shall set aside an arbitral award where it finds that
the subject-matter of the dispute is incapable of being settled by arbitration or the arbitral award
was induced by fraud or corruption.

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IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
ACCRA, GREATER ACCRA
A.D 2021
SUIT NO. …………….
IN THE MATTER OF THE ALTERNATIVE DISPUTE RESOLUTION ACT, 2010 (ACT 798)
AND
IN THE MATTER OF A DISPUTE AT THE GHANA ARBITRATION CENTRE

BETWEEN
KAKA KOLA COMPANY LTD CLAIMANT
AND
ABC COMPANY LTD RESPONDENT
AND
IN THE MATTER OF SETTING ASIDE AN ARBITRAL AWARD PURSUANT TO
SECTION 58 OF THE ALTERNATIVE DISPUTE RESOLUTION ACT, 2010 (ACT 798)

MOTION ON NOTICE FOR AN ORDER SETTING ASIDE AN ARBITRAL AWARD

PURSUANT TO SECTION 58 OF THE ALTERNATIVE DISPUTE RESOLUTION ACT,
2010 (ACT 798)

PLEASE TAKE NOTICE that this Honorable Court will be moved by Counsel for and on behalf
of the Claimant herein on the …….. day of ………… , ………… at 9 am in the forenoon or so
soon thereafter as Counsel for the Claimant may be heard praying this Honorable Court for an
order setting aside an arbitral award made against the Claimant and in favor of the Respondent
on the grounds stated in the accompanying affidavit.
AND FOR ANY other orders that this Honorable Court deems just and proper.

DATED THIS …….. DAY OF ……………….. , 2021 AT ABABIO AND ASSOCIATES

CHAMBERS, ACCRA.
(SIGNED)

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YAW ABABIO
LAWYER FOR THE CLAIMANT
THE REGISTRAR
HIGH COURT
ACCRA
AND COPIES FOR SERVICE ON THE ABOVE NAMED RESPONDENT.

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The case of Agricult Ghana Limited v Ghana Cocoa Board11 touches on the setting aside of
an arbitral award. The facts are set out below:
Facts:
The applicant filed a request for arbitration, pursuant to the arbitration provisions in a contract
executed by the parties. After the Arbitral Tribunal delivered its award, the applicant sought to
have the award set aside.
The applicant contended that the failure of the Chairman of the Tribunal, to disclose that his
daughter was working for the President of Ghana as a Senior Policy Advisor, created a conflict
of interest situation, in view of the fact that the Respondent (Cocobod) is a State institution.
Further, the applicants contended that the contract between the parties terminated as a result of
political interference by the Government, the same Government whom the daughter of the
Chairman of the Tribunal works for. As such, the Chairman should have made such disclosure to
the parties in line with Sections 12(5) and 15 of Act 798.
Secondly, the applicants contended that by virtue of Section 1 of Act 798, the Arbitral Tribunal
did not have the authority to determine matters relating to national/public interest.
Issues:
The questions for determination were:
1) Whether or not the non-disclosure of the relationship between the Chairman of the
tribunal, and his daughter, a Senior Policy Advisor to the President, is a ground for the
High Court to set aside the arbitral award?

2) Whether or not the arbitral award ought to be set aside on the ground that the arbitral
tribunal relied on broad public policy in arriving at its decision?

Holding & Reasoning:

On Issue 1, the court ruled that the father-daughter relationship was not a ground to set aside the
award.
The court relied on case law to highlight that the rules on disclosure do not require disclosure of
every former social or financial relationship with a party or the party’s principals, and that
provisions on disclosure are meant to be applied realistically so that the burden of detailed
disclosure does not become so great that it is impractical for persons in the business world to be
arbitrators.
The court highlighted that one must look at the nature of the relationship and its connection to
the arbitration in determining disclosure by the arbitrator, and in doing so, the following factors
must be considered;

11
SUIT NO. CM/MISC/0749/2019

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- Any personal interest, pecuniary or otherwise the arbitrator has in the proceedings
- The directness of the relationship between the arbitrator and the party he is alleged to
favour
- The connection of the relationship to the arbitration, and
- The proximity in time between the relationship and the arbitration proceedings
In the instant case, the Chairman had no relation whatsoever to any of the parties. Cocobod,
being a State institution, is a corporate entity, and there was no evidence of the Chairman’s
daughter having worked for Cocobod to merit an inference of impartiality on the part of the
Chairman. The chairman’s daughter worked for the Government in an advisory position
regarding gender issues, thus cannot be said to have had any influence on the father in his
professional matters. The applicants failed to lead any evidence to show that the father-daughter
relationship has any connection with the parties to the arbitration.
Although the Court acknowledged that the Government has an interest in Cocobod, it indicated
that so does every Ghanaian. If the principle of impartiality and independence of arbitrators is
stretched to its illogical limits, then no Ghanaian professional will be qualified to arbitrate on
matters relating to the Respondent. This would amount to over-stretching the impartiality and
independence principle.
Accordingly, the court took the view that the relationship between the Chairman and his
daughter is so trivial regarding the issues before the tribunal, and that the father-daughter
relationship had nothing to do with any of the parties or issues for determination that require
disclosure by the Chairman of the Arbitral Tribunal, and was not one that affected the
independence and impartiality of the arbitrator.
On Issue 2, the court held that Arbitral tribunals are duty bound to observe the impartiality
principle and avoid being perceived as siding with one of the parties by raising legal grounds,
which may disadvantage one of the parties. The tribunal, under the cloak of public policy,
decided to pursue the case of the Respondents instead of being neutral. The duty of the tribunal is
not to go beyond its mandate by looking for legal grounds such as public policy so as to favour
the case of the Respondents.

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CUSTOMARY ARBITRATION

What is Customary Arbitration?

Customary arbitration, as the name suggests, is arbitration held in accordance with customary law
or usage. It is a method of resolving claims and disputes among members of the various
communities in Ghana.
Customary law, in the Ghanaian context, refers to the rules of law which by custom, are applicable
to particular communities in Ghana.
It must be known that customary arbitration is an old age practice in Ghana and a unique feature
of Act 798 is that customary arbitration has been given statutory legitimacy. In the memorandum
to the ADR Bill, the Attorney General explained that arbitration in the customary form was known
and practiced in the territories that comprise this country before the passing of the Arbitration
Ordinance (No. 9 of 1928) and continues to be practised to date.
Section 135 of Act 798 defines customary arbitration as the voluntary submission of a dispute,
whether or not relating to a written agreement, for a binding determination under Part III of the
Act.
In Pong v Mante12, Lassey J (as he then was) described customary arbitration as:
“the practice whereby natives of this country constitute themselves into ad hoc tribunals popularly
known and called arbitrations, for the purposes of amicably settling disputes between them or their
neighbours. This has long been recognized as an essential part of our legal system; provided all
the essential characteristics of holding a valid arbitration are present, the court will enforce any
valid award published by such ad hoc bodies”.

Essential Characteristics of a Valid Customary Arbitration

Before any proceedings can be accepted by the court as constituting a valid and enforceable
customary law arbitration, it must satisfy certain essential characteristics.
In the case of Budu II v Caesar13, Ollenu J spelt out the basic ingredients of a valid customary
arbitration:
1. A voluntary submission of the dispute by the parties, to arbitrators for the purpose of having
the dispute decided informally but on its merits
2. A prior agreement by both parties to accept the award of the arbitrators

12
(1964) GLR 593
13
(1959) GLR 410

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3. The award must not be arbitrary, but must be arrived at after the hearing of both sides in a
judicial manner
4. The practice and procedure for the time being followed in the Native court or Tribunal of
the area must be followed as nearly as possible
5. There must be publication of the award
So in Dzasimatu v Dokosi14, the court held that a purported arbitration is binding if:
- the submission of the dispute was voluntary
- the parties agreed to be bound by the decision whichever way it went
- the rules of natural justice were observed
- the arbitrator acted within jurisdiction
- the decision or award was made known
So in essence, the requirements for a valid customary arbitration can be restated as follows:
 Voluntary submission of the dispute for settlement
 Prior agreement to be bound by the outcome of the settlement
 Due observation of the rules of natural justice
 Compliance with rules on jurisdiction
 Publication of the award
These elements are discussed in detail below. It is important to note that they have been codified
under Act 798.

Voluntary submission of the dispute for settlement

In Paul v Kokoo15, the court stated “The only solid foundation of a valid customary arbitration of
a binding award is the voluntary submission of the dispute to a relatively disinterested third party
to make a fair investigation into it and to give a decision on it.”
It is may be rare that 2 people who are quarrelling would meet and agree together to submit their
dispute to arbitration. What usually happens is that one party makes a complaint to somebody, and
the other party is sent for, and if that other party agrees, the party to whom the complaint was made
arbitrates upon the dispute.
So one way of initiating customary arbitration proceedings is for one party to the dispute, to lodge
a compliant against his opponent to a would-be arbitrator, with the request that he should arbitrate
over it. But to amount to arbitration, it must be shown that the other party agreed to submit to
arbitration after it had been explained to him that his opponent made a complaint and a further
request that the arbitrator should preside over the dispute to settle it. This is provided for in Section
90 of Act 798.

14
(1993-94) 1 GLR 463
15
(1962) 2 GLR 213 SC
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It is customary to demand that the parties pay a fee or token to signify their voluntary submission
to the arbitration proceedings. So once the complaint is made, the arbitrator would invite the
complaining party and the other party to pay a fee/token. Thus Section 90(4) provides that
customary arbitration shall not commence where the other party rejects the invitation by failing to
pay the fee/token demanded.
Additionally, 90(5) provides that if the other party fails to accept the invitation within 21 days of
receipt of the invitation or within a period specified by the arbitrator, it is deemed as a rejection of
the invitation.
In all cases, what would amount to a voluntary submission is a question of fact to be determined
on the evidence, the conduct of the parties and the circumstances of the case. However, Section
90(6) states that a person must not be forced or coerced by another person, institution or authority
to submit to customary arbitration.
Note that merely appearing before the panel/arbitrator is not sufficient to amount to voluntary
submission, because in some cases, the party may only appear before the panel/arbitrator out of
respect and with the view to respectfully inform the panel/arbitrator of their unwillingness to
submit to arbitration. So Justice Ollennu had this to say in Budu II v Caesar :
The mere presence of a party to a dispute at a meeting which purports to arbitrate upon a dispute
between him and another person also present at that meeting is no conclusive evidence or proof
of submission to arbitration. To constitute arbitration in such circumstances, there must be
evidence that the full implications of the purpose of the meeting was explained to each party, and
that upon their dispute and give a decision thereon. He may adduce some evidence of voluntary
submission such as his payment of arbitration fee and /or presentation of drinks
Thus, it is necessary that when a party appears before the panel, it is explained thoroughly the
matter has been proposed to be settled by arbitration, and to that end, there will be an award
published and then seek the consent of the parties to voluntarily consent to the proceedings.
Another way of initiating customary arbitration proceedings is where a party swears the oath, and
the other responds to it, resulting in the parties appearing before the chosen arbiter. Here, there is
a presumption of voluntary submission.

Prior Agreement to be bound by the Award

Another requirement for a valid customary arbitration is that there should be evidence of prior
agreement of the parties to be bound by the decision or award of the customary arbitration.
So it is important that before proceedings are commenced, it was made clear that parties would be
bound by the award, and that the parties accepted this. There should be no room for the fact that
any party who was not satisfied with the award could seek redress anywhere else.

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In Adwubeng v Domfeh16, the court held that a prior agreement to be bound by an arbitration
award implied that the parties were deemed to have intended, based on the nature and the
surrounding circumstances of the panel, to accept the award of the panel as the final and conclusive
determination of their dispute, and thereafter live in accordance with that award.
In Akunor v Okan17, it was highlighted that this agreement to be bound should be made a
precondition for the arbitration taking place, and that the rule is that once there has been a valid
customary arbitration, the parties are estopped from raising the same issue subsequently by action
in court.
Thus, the parties should be made to commit themselves to accept any award published, abide by it
and not re-litigate the matter.
It is highly desirable these days that this prior agreement should be in writing and signed by the
parties where they can read and write, or thumb-printed after it has been read over and interpreted
to them if they cannot read and write.

Rules of Natural Justice

There must be respect for the rules of natural justice. Section 93 mandates a customary arbitrator
to apply the rules of natural justice and fairness.
The rules of natural justice sits on two pillars:
Natural Justice

Audi Alteram partem Nemo Judex non causa sua

The first leg of the rule, the audi alteram principle, means that each party to the dispute should
be given an equal hearing. It enjoins the arbiter(s) to give each party an equal chance to state their
case fully, freely and voluntarily.
In Gberbie v Gberbie, Amissah JA pointed out that the fundamental principle of audi alteram
partem was recognized as a necessary part of our customary arbitration procedure.
In Budu II v Caesar, Ollenu J also pointed out that it was a fundamental principle of customary
law that no person shall be condemned either in respect of his person or property without being
given a fair hearing.

16
(1997) 1 GLR 282
17
[1977] 1 GLR 173

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The second leg of the rule, nemo judex non causa sua, enjoins a person not to sit in arbitration
over a matter if he is interested in the outcome, or is biased against one party, or is involved in a
conflict of interest, or is being a judge in his own case. Thus, Section 98 mandates that a person
requested to be a customary arbitrator must disclose any circumstance likely to give reasonable
cause to doubt as to the independence or impartiality of that person.
The requirement to comply with the rules of natural justice does not imply that the proceedings of
customary arbitration must take any particular form of hearing, such as the process in court. All
that is needed is to give both sides the opportunity to state their case, call their witnesses and the
cross-examine the witnesses of the other side. So in Akunor v Okan, it was indicated that an
arbitration need not follow any formal procedure. But both sides must be heard and be given the
fullest opportunity to present their case.
Rules on Jurisdiction
Generally, for the award of the customary arbitration to be valid, it must have been given by
arbitrators who acted within their jurisdiction.
Jurisdiction by Law:
Customary law may be used to settle cases raising customary issues and to which customary law
is to be applied. It cannot be used to settle any case of a constitutional nature or a dispute involving
legal interpretation, application of strict common law rules or one raising complicated legal issues,
even if it is civil in nature. Reference may be made to Section 1 of Act 798.
Additionally, customary law may be used to settle cases of a criminal nature but the jurisdiction is
circumscribed. It is limited only to criminal cases which has been taken to court and the court
decides to invoke its powers under Section 73 of the Courts Act, to allow a criminal case which
is not a felony or a misdemeanor aggravated in degree to be settled.
Thus Section 89(2) of Act 798 provides that ‘except otherwise ordered by a court and subject to
any other enactment in force, a person shall not:
a) Submit a criminal matter for customary arbitration
b) Serve as an arbitrator in a criminal matter

Jurisdiction by Subject-Matter:
Every arbitrator is duty bound to confine his arbitration to determining the exact dispute that the
parties have referred to him. Any matter outside the specific reference cannot be enforced.
Customary law arbitration cannot be used to settle a chieftaincy dispute; that is a cause or matter
affecting chieftaincy. This is reserved exclusively to the judicial committees of the houses of chiefs
and the Courts.

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Geographical Jurisdiction:
Jurisdiction may be decided by the physical area within which the panel is permitted to accept
disputes to be settled. This is the geographical jurisdiction and is usually confined to the place
which has the closest connection with where the dispute arose, where the subject matter of the
dispute is situated or where the disputants reside.
One very important determining factor is the customary law to be applied in the settlement of the
dispute. Prima facie, that should be the customary law of the disputants themselves, the place
where the dispute arose, or where the subject matter of the dispute is situated. The arbiter or the
panel should be familiar with the customary law to be applied.

Publication of the Award

An arbitrator is enjoined to publish his award. Publication within the meaning of customary
arbitration means that the judgment should be pronounced in public for the whole world to know
its contents.
Thus it is not obligatory for this to be in writing, although this form is becoming more popular.
It is best to pronounce the award publicly at the same venue the arbitration was held. If publication
is deferred to another day, the date, time, venue should be made known to all parties.
It must be noted that under Section 109, an award in a customary arbitration is binding between
the parties and a person claiming through and under them; and need not be registered in a court to
be binding.

Effect of a Valid Customary arbitration

Having looked at the various requirements for a valid customary arbitration, it is necessary to
examine the effect of a valid customary arbitration.
1) A Party to the arbitration cannot resile from it.
Section 105 provides that a party shall not withdraw from customary arbitration. Once a party
has given the initial consent and arbitration is under way, there is no right in the parties to
rescind from it, even before it is concluded and the award is given.
If a party stays away, the hearing may proceed in that parties’ absence and an award rendered
will not be invalid only for the reason that one party decided to boycott the proceedings once
it was under way.
Also, when both parties to an arbitration had voluntarily submitted to an arbitration, had given
evidence with their respective witness and an award is published, there has been a valid
arbitration and the award will be binding on the parties whether they accepted it or not and
they could not resile after the award has been published.

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2) It is binding and not appealable,

Where an arbitration has been properly conducted and valid award pronounced, the parties will
be bound by the award. In that sense the parties are estopped from going back to reopen the
dispute in another customary arbitration or in another Court. Their privies are also estopped.

Enforcement
Section 111 provides that a customary award (i.e. an award delivered out of customary arbitration)
may be enforced in the same manner as a judgment of the court.
Section 110(2) however provides that although a customary arbitration award need not be in
writing and also need not be registered in court to be binding, a customary arbitration award
intended for registration at a court shall be in writing.

Setting Aside an Award

There is no appeal from an arbitration award. A party may only set the award aside under Section
112 of Act 798.
Because customary arbitration is based on consent of the parties and their voluntary submission
and prior agreement to be bound by the outcome, it is not easy to set aside its award or decision.
However, Section 112 provides that an aggrieved party may apply to the nearest District, Circuit
or High Court to set aside the award on the grounds that the award:
- was made in breach of the rules of natural justice,
- constitutes a miscarriage of justice, or
- is in contradiction with the known customs of the area concerned.
Such application must be made to the court within three months of the award, and on notice to
the other party to the arbitration.

Party Autonomy in Customary Arbitration

Party autonomy is also ensured under customary arbitration.
As mentioned earlier, under Section 90(6), no party can be coerced or forced by another person or
institution or authority to submit to customary arbitration.
Under Section 91, the court may, with the consent of parties, refer a dispute pending before it to
customary arbitration.
Section 95 provides that parties may decide on the number of customary arbitrators, but normally,
in the absence of such agreement, there shall be one customary arbitrator.

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Under Section 100(1), parties may also agree on the circumstances under which the appointment
of a customary arbitrator may be revoked, and they may in any case acting jointly, revoke the
appointment of the customary arbitrator. Parties may also appoint another person to replace the
customary arbitrator who resigns, dies, or has his appointment revoked.

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ADR HYBRID METHODS

Introduction to Hybrid processes

ADR consists of a wide range of processes. On the ADR Spectrum, we have the primary ADR
processes, consisting of negotiation, mediation, conciliation and arbitration. These are often used
sequentially.
We also have on the spectrum, other outgrowths of ADR, such as partnering, Dispute Review
Boards and Consensus Building/Collaborative problem solving.
However, there are instance where more than one primary ADR process may be combined, based
on the special requirements of the case or the parties. The flexibility of ADR has birthed
innovations resulting in hybrid processes, in order to find solutions for each problem.
ADR hybrid methods combines two or more traditional dispute resolution processes into
one. Commonly, in case of a dispute, more than one type of dispute resolution procedure is
provided for in sequence such as negotiation, then mediation, and finally for arbitration, and each
of these processes is carried out by a different person.
However, with these hybrid methods/processes, if a primary ADR process is not able to resolve
the problem, rather than aborting the primary process entirely and endeavoring to start another
primary process, what happens is that a second process may be joined to the initial one as a hybrid.
So a hybrid dispute resolution process combines elements of two or more traditionally separate
processes into one.
Although the Long title of Act 798 provides that the Act is ‘to provide for the settlement of disputes
by arbitration, mediation and customary arbitration, to establish an ADR Centre and to provide
related matters’, the interpretation Section, i.e. Section 135, provides for ADR as the collective
description of methods of resolving disputes otherwise than through the normal trial process.
Impliedly, the Act seeks to regulate all forms of dispute resolution other than through the normal
court process. In the memorandum, the Attorney General also alludes to the fact that the Act is to
facilitate the resolution of disputes through ADR processes. Besides, the short title of the Act itself
shows that it is an Act that encompasses all forms of dispute resolution through ADR procedures.
Some of the common hybrid processes are discussed below:

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Mediation-Arbitration (Med-Arb)
The most common hybrid process is mediation-arbitration, or "med-arb" where parties agree to
mediate their dispute with the understanding that should the mediation fail, or that any issues not
settled by mediation will be resolved by arbitration, usually using the same individual to act as
both mediator and arbitrator.
This is an ADR process by means of which the neutral will commence facilitating a dispute
resolution using mediation. So Mediation-Arbitration begins as mediation. If the parties fail to
come to agreement, the process transforms into an arbitration, with the former mediator assuming
the role of decision-maker. The disputing parties agree in advance whether the same or a different
neutral third party conducts both the mediation and arbitration processes.
In this process, the neutral must, and will normally inform the parties in advance if they want to
use not just mediation, but mediation-arbitration, in the sense that should mediation fail, they will
resort to arbitration.
Thus, to resort to the med-arb approach, the neutral must always inform the parties in advance at
the beginning of the process, and obtain their consent that the process may transition to arbitration
should the mediation process fail.
It is important to inform the parties in advance and obtain their consent for the following reasons:
 The parties have to commit to the hybrid process and this is very important because
mediation is a consensual approach where the parties themselves have the opportunity to
resolve their dispute with the help of a mediator. So the mediator is essentially a facilitator
but the ultimate decision on how to resolve the dispute rests with the parties. Because of
this aspect of mediation, which emphasizes the role of the parties themselves in resolving
the problem, if the neutral is going to move beyond that to another process which is led or
driven by a third party with the necessary power to decide the matter one way or another
for the parties, then he requires the consent of the parties since he is moving from a
consensual approach to a rights-based approach.

 Another reason why it is important to inform the parties from the beginning is that during
the arbitration process, which is a rights-based approach, the neutral will decide the case
based on evidence and information received from the parties and arrive at the award, and
this could include information divulged by the parties during the mediation stage, in a
confidential manner. The parties may have revealed information which they would nor
ordinarily have revealed if they were aware that the neutral would transition from a
mediator to an arbitrator. Thus, the parties must know beforehand that if the process fails,
the neutral may serve as an arbitrator.

 It is also important to obtain the consent of the parties from the very beginning because it
is possible to use the same neutral from the mediation process as an arbitrator.

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Some advantages of the Med-Arb approach include:

1) Having the same individual act first as mediator, and then as arbitrator if necessary,
prevents a waste of time when transitioning.

2) Med-Arb creates an incentive for the parties to participate in the mediation phase genuinely
and in good faith because they know that if they fail to reach agreement, they lose control
over the outcome. If the process is explained properly to the parties, and the parties
understand that should the mediation fail, the power to resolve the dispute would be taken
from their hands and placed entirely in the hands of an independent neutral, they would be
encouraged to resolve the dispute themselves through mediation in order to reach a more
favourable win-win solution.

3) There is an element of finality, as the dispute would ultimately be resolved, either by

mediation or arbitration.

4) Med-Arb can result in cost and time efficiencies, compared to separate mediation and
arbitration proceedings

There can be some challenges with this approach:

1) Having the same individual act in both roles, however, may be a point of concern to the
parties. They might believe that the arbitrator will not be able to set aside unfavorable
information learned during the previous mediation once he transitions to an
arbitrator. Aside the fact that the neutral may have received confidential information
revealed to him by the parties during the mediation stage, he may have come across all
sorts of other information. The problem then is should the neutral transition to an arbitrator,
how would he handle this information objectively? In such a case, the neutral would have
to be a highly professional and ethical person to be able to combine the two approaches.

2) Parties may want a different neutral to be brought in to serve as arbitrator. When that
happens, certain advantages that come along with having the same mediator as an arbitrator
would be lost. For instance, if the same mediator continues to function as an arbitrator, then
it is possible that there would be very little loss of time. However, bringing in a new person
to serve as arbitrator, some time might lapse.

3) Another issue is the question of costs. If the same neutral transitions from a mediator to
arbitrator, what happens to his fee regime?

4) The parties may be inhibited in their discussions with the mediator and reveal less if they
know that the mediator might be called on to act as arbitrator in the same dispute.

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5) A party to Med-Arb can force the transition from mediation to arbitration to occur by
simply refusing to participate or negotiate.

One of the primary concerns raised with respect to Med-Arb is procedural fairness. The arbitrator
may appear to be and may actually be biased if the arbitrator received private representations from
the parties when acting as mediator. Procedural fairness in the arbitration may require full
disclosure to the parties of any such private representations.
If the mediator does not hold private sessions issues of procedural fairness may not arise but the
disclosure of confidential or ‘without prejudice’ information may give rise to problems. Such
difficulties may result in parties not being as open as may be desirable. One way around the
problem is to appoint a different arbitrator who was not privy to the information disclosed in a
private session. However, this would reduce the efficiency of the process and add to costs.

Arbitration-Mediation (Arb-Med)
Arb-Med is an abbreviation for arbitration-mediation.
This is the opposite of Med-Arb. It starts with an arbitration, whereby the arbitrator will pass an
arbitral award, which is kept sealed and later proceeds with mediation. If the mediation is
successful, the agreement between the parties governs the resolution of the dispute and the arbitral
award is never unsealed. However, if mediation fails to settle all issues, the arbitral award is
disclosed to the parties to resolve the dispute and the parties are bound by the decision.
So this process begins with a rights-based approach, and may end with a consensual approach.
So the process is simply this:
- a neutral and impartial third party receives evidence and testimony provided by disputants
in an arbitration, writing a decision that is withheld from the parties, after which;
- the neutral facilitates communication between the parties in mediation to enable the parties
to reach agreement, and;
- failing agreement, the arbitration decision is issued as binding resolution.
This process is captured under Section 47 of Act 798. It provides that ‘in an arbitral proceeding,
the arbitrator may encourage the settlement of the dispute with the agreement of the parties, and
for such purpose, may use mediation or other procedures at any time during the arbitral
proceedings.
It further provides that if during the arbitral proceedings, the parties settle the dispute, the arbitrator
shall terminate the proceedings, and with the agreement of the parties, record the settlement in the
form of an arbitral award on agreed terms.
Some advantages of the Arb-Med approach include:
- The Med-Arb process is informal, quick, and cost-saving.

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- There is an element of finality as the dispute will be resolved by either mediation or

arbitration.
- The impending threat of an imposed decision can have a positive impact in helping
disputants reach their own negotiated agreement.
- The structure of Arb-Med allows a party to evaluate its arbitration case compared to that
presented by the opponents, possibly recognizing strengths or weakness that could allow
common ground during mediation.
- This process eliminates the ethical problem of award contamination. After the close of the
arbitration phase, the neutral is free to explore private communication during mediation,
thereby protecting the already-written award from taint by ex parte communications
- Arb-med is credited with greater rates of voluntary agreement, because it may cause
disputants to actively consider the possibility of losing because a ruling already has been
rendered.
- The parties have good reason to disclose all pertinent information to the arbitrator as the
arbitrator’s decision may ultimately decide the dispute.
Some challenges include:
- Parties might feel greater pressure to reach agreement during the mediation phase of the
arb-med process. They are aware of the relative strength of their cases and now have a
binding award hanging over the mediation.
- Arb-med also leads to another question after the arbitration award has been written. The
neutral cannot change the award regardless of insight gained during the subsequent
mediation. Arb-med offers no procedure for changing the award based on new information
discovered during the mediation process (except, of course, if the parties would agree to
proceed to a new mediation attempt after the envelope has been opened, some refer to this
as “arb-med-arb-med-arb”)
- Compared to Med-Arb, it is likely to be a less expedited process because it always involves
both an arbitration phase and a mediation phase
- Suggestions by the mediator at mediation may be interpreted as hints regarding the sealed
arbitral award, inappropriately coercing or pressuring the parties into settlement.

Arbitration-Conciliation (Arb-Con)
This process is covered by Section 30 of Act 798 which provides that ‘the appointing authority or
any institution or individual may, with the consent of the parties at any time during the arbitration
process, arrange a conciliation conference to facilitate the resolution of the dispute, except that an
arbitrator in the dispute shall not be a conciliator.
The process is similar to Arb-Med. Here, the parties are going through an arbitration process,
during which a conciliation conference may be organized to facilitate the resolution of the dispute.
However, the arbitrator cannot be the conciliator.

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Act 798 defines conciliation as the submission by the parties of a dispute which is the subject of
an arbitration, during the cause of the arbitration to an impartial person who is not the arbitrator,
to facilitate the resolution of the dispute between the parties.
It defines a conciliator as an impartial person appointed to preside over a conciliation conference.

Mediation-Recommendation (Med-Rec)
What happens here is that if the parties do not come to an agreement during a mediation, the
mediator makes a recommendation to the court or another decision-maker as to a recommended
resolution.
This is usually the case with Court-connected ADR where the court refers the parties to mediation
first, before coming back to court.

Rent – a – judge / Private Judging

This is a process where a renowned judge on retirement can register as a private judge with the
judicial system which he/she has retired from. A fee is normally payable to the retired judge.
So parties may consult this judge in a private setting, who hears the case and renders a decision.
The decision of the private judge is treated as a judgement of the court, and is enforceable as such.
Such judgement however, is appealable.
This is a hybrid arbitration approach because it is augmenting the traditional judicial system where
everything is public and done publicly. With this process, the case is held in private.
The advantages of this process is that parties pick their own judges who may have special expertise
in the area of dispute, and since rules of evidence apply, parties’ rights are protected.

(Judicial) Settlement Conference

This is a settlement avenue that is provided for by the rules of court. It is another form of structured
negotiations and is often annexed to a court system. Many courts require parties to attend a
settlement conference before trial. The conference may be conducted by judges or by experienced
trial lawyers.
In Ghana, it is provided for by the commercial court rules. At the judicial settlement conference,
the judge typically holds discussions with the lawyers and the parties to review the law and the
pleadings with a view to seeking compromises and admissions that may help facilitate a complete
or partial settlement of the issues set down for trial.

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Early Neutral Evaluation

It is a process where parties submit their case to a neutral third party who undertakes an assessment
of the same and renders an advisory opinion as to the relative merits of each party’s case. Each
disputant presents its claim or defenses and describes the principal evidence on which its claims
or defenses are based. The evaluator then renders an advisory opinion and the parties use this as
basis for exploring an early settlement of the case.
It is informal and relatively inexpensive, and allows parties to reach mutually acceptable
agreement other than through court system. Even if settlement fails, it helps parties to establish
time limits for disposal of the case in a more effective and expeditious manner.

Mini Trial
This process is a hybrid of negotiation, mediation and case evaluation, and is used mainly in
business/corporate matters, on the basis that it is better to resolve disputes without protracted
litigation.
It involves the attorneys of the parties making summary presentations of evidence to one or more
expert neutral facilitator(s) in the presence of corporate executives or others with decision-making
authority (high level corporate decision-maker).
Following the summarized presentation of evidence and a questioning period, the decision-makers
and facilitator will meet for confidential settlement discussions. If resolution is not reached the
advisory panel is asked to render decision as to the likely outcome of the matter if litigated.

Summary Jury Trial

If disputants insist on going to court, they may use this process.
The Summary Jury Trial is another type of mock trial (really a settlement event) using one or more
advisory juries.
Summary jury trial usually include the presentation of an abbreviated version of the evidence to
an advisory jury, who then render one or more advisory verdicts for executives with decision-
making authority to consider in their settlement discussions, again typically facilitated by an expert
advisor or facilitator. That evidence is the summary of the case for each party.
The advisory jury offers a non-binding advisory verdict which can be used as basis for further
settlement negotiation. It gives insight as to how a jury might find in a contested case.
However, it may not accurately predict the results in a trial, and may waste time and money where
settlement not reached.

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Settlement Week (ADR Week)

What happens during the Settlement Week is for certain pending cases to be selected from the
participating courts, usually the lower courts, to be put before mediators in an effort to encourage
settlement and decongest the courts.

Conclusion
Using a hybrid process provides parties with flexibility and finality in the resolution of their
dispute. The processes may involve less time, expense, aggravation and inconvenience compared
with litigating a dispute in court.
Given the concerns about hybrid processes, particularly in relation to procedural fairness, it is
desirable to obtain the fully informed consent of the parties at the outset of the proceedings.
If the process is carefully designed, ADR hybrids can actually offer the best of both worlds,
maintaining most of the advantages of mediation, and avoiding most of the disadvantages of both
mediation (risk of failure, no finality) and litigation.

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ETHICS IN ADR

The word ‘ethics’ is derived from the Greek word ‘ethos’, which means “character” and from the
Latin word ‘mores’, which means “customs”.
Ethics describe rules or code of conduct/behaviour governing proper professional behaviour of
members of a profession. There are many institutions and professions that have ethics which are
necessary to govern behaviour and conformity to certain standards. Breach of these standards
result in repercussions.
There are ethical standards regulating the practice of ADR all over, particularly Arbitration. For
example, there is the International Bar Association which has published several rules and
guidelines relating to international arbitration (IBA Rules of Ethics for International Arbitrators).
It must be noted that the IBA Rules are not legal provisions and thus do not override any applicable
national law or arbitration rules chosen by the parties. They become binding only upon agreement
by the parties. Despite their per se non-binding nature, they have, nevertheless, become quite
influential and have found broad acceptance in international arbitral practice.
In Ghana, one notable and commendable feature of Act 798 is the incorporation of ethical
provisions in all the three parts dealing with arbitration, mediation and customary arbitration.
Throughout, the Act contains ethical provisions dealing with fairness, confidentiality, conflict of
interest and fees and other financial arrangements.

Ethics in Arbitration
There is a Code of Ethics for arbitrators, which are the general moral guiding principles that an
arbitrator must adhere to when performing their assigned roles, in order to avoid an award from
being set aside.
The ethical obligations of an arbitrator begin upon the acceptance of the appointment and continue
throughout all stages of the proceeding and even after the decision in the case has been given to
the parties.
Generally, there are 6 ethical rules an Arbitrator must comply with. These are set out below:

#1) An Arbitrator should uphold the integrity and fairness of the Arbitration process.
Arbitrators must resolve disputes by being fair, not only to the arbitration process itself, but to all
the participants of the process. Section 31 of Act 798 reinforces this rule by stating that, an
arbitrator shall be fair and impartial to the parties.

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Thus, arbitrators must conduct themselves fairly, and should not be swayed by outside pressure,
by public clamor, by fear of criticism or by self-interest.
The arbitrator should not be soliciting for appointment as an arbitrator.
Additionally, the arbitrator must not enter into any financial, family, social or professional
relationship which is likely to affect impartiality. Anything that creates an impression/semblance
of partiality must be avoided, and this extends to even a reasonable time after arbitration
proceedings are terminated.
So it has been said that “If an arbitrator seeks to ensure fairness and integrity of his person and
invariably fairness and integrity of the process, she must advert her mind to all issues of conflicts
of interest and address them properly.
Thus, the arbitrator should desist from acquiring any financial or personal interest in the subject-
matter, in the course of the proceedings and even a reasonable period after proceedings have ended.
An arbitrator should neither exceed his authority nor do less of what is expected of him under the
Arbitration Agreement. This means if the Agreement sets out a certain procedure to be followed,
it is that procedure that must be followed.
Additionally, the arbitrator must make all reasonable efforts to prevent delaying tactics,
harassment of parties or other participants, or other abuse or disruption of the arbitration process.

#2) An Arbitrator should disclose any interest or relationship likely to affect impartiality or
which might create an appearance of partiality or bias
This is closely connected to the requirement for fairness and integrity. To ensure utter integrity,
the arbitrator anything that is likely to create a semblance of bias or impartiality, no matter how
small or irrelevant it may seem.
Section 15 of Act 798 mandates that an arbitrator under the Act must be impartial, and shall from
the time of appointment and throughout the arbitral proceedings without delay, disclose to the
parties in writing, any circumstances likely to give reasonable doubt as to his independence or
impartiality.
Before accepting to serve as arbitrators, they must disclose:
- Any direct or indirect financial or personal interest in the outcome of the arbitration;
- Any professional, business, family or social relationship which is likely to affect
impartiality or which might create an appearance of partiality. Persons requested to serve
as arbitrators should disclose any such relationships which they personally have with any
party or its counsel, or with any individual whom they have been told will be a witness.
They should also disclose any such relationships involving members of their families or
their current employers, partners or business associates.

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If after such disclosures are made, the parties agree to continue with the appointment of the
arbitrator, then all is well. However, in the event that an arbitrator is requested by ALL parties to
withdraw, the arbitrator should do so.
In the event that an arbitrator is requested to withdraw by less than all of the parties because of
alleged partiality or bias, the arbitrator should withdraw, unless either of the following
circumstances exists;
 If an agreement of the parties, or arbitration rules agreed to by the parties, establishes
procedures for determining challenges to arbitrators, then those procedures should be
followed, or
 if the arbitrator, after carefully considering the matter, determines that the reason for the
challenge is not substantial, and that he or she can nevertheless act and decide the case
impartially and fairly, and that withdrawal would cause unfair delay or expense to another
party or would be contrary to the ends of justice.
The obligation to disclose interests or relationships is a continuing duty, which requires a person
who accepts appointment as an arbitrator to disclose, at any stage of the arbitration, any such
interests or relationships which may arise, or which are recalled or discovered.

#3) An Arbitrator in communicating with the parties should avoid impropriety or the
appearance of impropriety
If the Arbitration Agreement establishes the manner/mode of communication between the parties
and the arbitrator, it must be followed.
Unless otherwise provided in applicable arbitration rules or in an agreement of the parties,
whenever an arbitrator communicates in writing with one party, the arbitrator should at the same
time, send a copy of the communication to each other party. Whenever the arbitrator receives any
written communication concerning the case from one party which has not already been sent to
each other party, the arbitrator should do so.
There should be no ex-parte communication with a party. The only exceptions are:
i. Where a party fails to be present at a hearing after having been given due notice, the
arbitrator may discuss the case with any party who is present.

ii. Discussions may be had with a party concerning such matters as setting the time and
place of hearings or making other arrangements for the conduct of the proceedings.
However, the arbitrator should promptly inform each other party of the discussion and
should not make any final determination concerning the matter discussed before giving
each absent party an opportunity to express its views.

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#4) An Arbitrator should conduct the proceedings fairly and diligently

An arbitrator should conduct the proceedings in an evenhanded manner and treat all parties with
equality and fairness at all stages of the proceedings.
An arbitrator should perform duties diligently and conclude the case as promptly as the
circumstances reasonably permit.
An arbitrator should be patient and courteous to the parties, to their counsels and to the witnesses
and should encourage similar conduct by all participants in the proceedings.
Unless otherwise agreed by the parties or provided in arbitration rules agreed to by the parties, an
arbitrator should accord to all parties, the right to appear in person and to be heard after due notice
of the time and place of hearing.
An arbitrator should not deny any party the opportunity to be represented by counsel.
If a party fails to appear after due notice, an arbitrator should proceed with the arbitration when
authorized to do so by the agreement of the parties, the rules agreed to by the parties or by law.
However, an arbitrator should do so only after receiving assurance that notice has been given to
the absent party.
When an arbitrator determines that more information than has been presented by the parties is
required to decide the case, it is not improper for the arbitrator to ask questions, call witnesses, and
request documents or other evidence. It is not improper for an arbitrator to suggest to the parties
that they discuss the possibility of settlement of the case. However, an arbitrator should not be
present or otherwise participate in the settlement discussions unless requested to do so by all
parties.
An arbitrator should not exert pressure on any party to settle. An Arbitrator is however, not
prevented from acting as a mediator or conciliator of a dispute in which he or she has been
appointed as arbitrator, if requested to do so by all parties or where authorized or required to do so
by applicable laws or rules.
When there is more than one arbitrator, the arbitrators should afford each other the full opportunity
to participate in all aspects of the proceedings.

#5) An Arbitrator should make decisions in a just, independent and deliberate manner
An arbitrator should, after careful deliberation, decide all issues submitted for determination. An
arbitrator should decide no other issues.
An arbitrator should decide all matters justly, exercising independent judgment, and should not
permit outside pressure to affect the decision.
In the event that all parties agree upon a settlement of issues in dispute and request an arbitrator to
embody that agreement in an award, an arbitrator may do so, but is not required to do so unless
satisfied with the propriety of the terms of settlement. Whenever an arbitrator embodies a
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settlement by the parties in an award, the arbitrator should state in the award that it is based on an
agreement of the parties.

#6) An Arbitrator should be faithful to the relationship of trust and confidentiality inherent
in that office.
An arbitrator is in a relationship of trust to the parties and should not, at any time, use confidential
information acquired during the arbitration proceeding to gain personal advantage or advantage
for others, or to affect adversely the interest of another.
Section 34(5) of Act 798 mandates that except as otherwise agreed by the parties or provided by
law, an arbitrator must ensure the confidentiality of the arbitration.
So unless otherwise agreed by the parties, or required by applicable rules or law, an arbitrator
should keep confidential, all matters relating to the arbitration proceedings and decision.
It is not proper at any time for an arbitrator to inform anyone of the decision in advance of the time
it is given to all parties. In a case in which there is more than one arbitrator, it is not proper at any
time for an arbitrator to inform anyone concerning the deliberations of the arbitrators. After an
arbitration award has been made, it is not proper for an arbitrator to assist in post-arbitral
proceedings, except as is required by law.

Ethics in Mediation
Impartiality & Disclosure
Sections 67 & 68 of Act 798 contain provisions on impartiality of the mediator. A mediator must
be independent and impartial, and must not have any financial or personal interest in the outcome
of the dispute.
He must also disclose to the parties in advance, any circumstances likely to give reasonable doubt
as to his independence or impartiality, or to create a likelihood of bias.
The obligation to disclose interests or relationships is a continuing duty which requires a person
who accepts appointment as a mediator to disclose at any stage of the proceedings. Thus, Section
68(2)(a) is to the effect that a mediator shall promptly disclose to the parties any circumstances
that arises during mediation which is likely to affect the impartiality of the mediator.

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Confidentiality
As regards confidentiality, a mediator shall not disclose information given in the course of
mediation to any person who is not a party to the mediation without the consent of the parties,
pursuant to Section 79(2) of the ADR Act.
The Act mandates that a mediator shall not be made a party in any court proceedings relating to
mediation. Even more, parties shall not rely on or introduce as evidence in arbitral or judicial
proceedings, views expressed or suggestions made by the other party in the mediation in respect
of a possible settlement of the dispute, nor admissions made in the course of the mediation
proceedings or the fact that the other party had indicated his willingness to accept a proposal for
settlement made by the mediator.

Fairness
Section 74(5) stipulates that a mediator shall be guided by principles of objectivity and fairness
A mediator shall conduct the mediation in a fair, impartial and ethical manner by providing a
balanced process in which each participant is given an opportunity to participate.
Under Section 88, on termination of the mediation proceedings, the mediator shall render an
account to the parties of the deposits received and shall return any unexpended balance of the
deposits of the parties back to the parties

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JUDICIAL CASE MANAGEMENT

What is Judicial Case Management?

Case management is an emerging trend in justice systems all over the world, and has been widely
accepted as the most effective way to handle and progress cases in the courts for quick and
expeditious resolution.
In a Report by Lord Woolf on reforms for the civil justice system in England and Wales, case
management was a key recommendation.
Case management covers matters such as:
- Identifying the issues in the case
- Summarily disposing of some issues and deciding in which order other issues are to be
resolved,
- Fixing timetables for the parties to take particular steps in the case, and
- Limiting disclosure and expert evidence.

Importance of Case Management

Case management has become particularly necessary as a dispute resolution technique because of
the explosive growth in civil litigation.
Civil cases are now more complex and protracted with multiple parties, numerous factual issues,
voluminous documents and complicated legal issues.
This explosive growth in civil litigation came about as a result of population growth, the enactment
of new laws creating more rights and remedies, and the expansion of commerce and business
opportunities and a greater reliance on the courts to find solutions to variety of societal problems,
among other things.
Although there was an increase in judicial resources to try match the growth in civil litigation,
such as the addition of more judges and courtrooms, efforts to keep pace with the massive
expansion of litigation has not been very successful.
Thus, based on the widespread concerns among segments of the legal community, a search for
solutions led to the following:
- the creation and expansion of less costly alternative dispute methods such as Negotiation,
Mediation, Arbitration and Judicial settlement conferences; and
- active judicial case management of each civil case

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Elements of Judicial Case Management

Traditionally, the role of trial judges was viewed primarily as presiding over trials, hearing and
evaluating evidence, finding facts, applying the appropriate legal standards, making judgments,
and dispensing justice. The judge assumes a passive role allowing the lawyers and their clients to
control the progress and pace of litigation.
However, with the introduction of judicial case management, the trial judge has emerged from a
passive pre-trial role to an active case manager, in an effort to conduct the business of the courts
with greater judicial efficiency.
The basic concept behind case management is for early judicial involvement in identifying the
principal factual and legal issues in dispute between the parties and working with them and their
attorneys to plan for and manage the conduct of future proceedings to achieve the earliest and most
cost effective resolution of the dispute.

Case Management Conference

As part of judicial case management, a case management conference is held.
A case management conference is called and administered by the court to plan the future conduct
of the dispute before the court.
In preparation for the conference, the lawyers for the parties are required to meet (before the
Conference) to discuss the nature and basis of their claims and defences and the prospects for a
prompt settlement or resolution of the case. They are required to do the following:
 To exchange specified information relevant to the claims and defences, such as the names
of witnesses, documentary evidence, and computations of damages;
 To develop a discovery plan for further exchange of evidence;
 Discuss dates for all future proceedings including trial.
After the meeting of counsel, they are required to file a Case Management Report prior to the Case
Management Conference.
At the Case Management Conference, the trial judge imposes deadlines that limit the time in which
the parties can:
(a) amend the pleadings and add other parties;
(b) provide disclosures required by the rules;
(c) complete discovery; and
(d) file pretrial motions.

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At this hearing, the court can also stay the proceedings so that the parties can try to settle the case
by alternative means. An ADR order may be sought at this time without a stay of proceedings
where it is appropriate.
The court also considers the standard disclosure of documents at the case management conference.
The documents which need to be disclosed include all the documents a party relies on, those that
adversely affect his own case, and another party’s case or supports another party’s case and
documents which he is required to disclose by the rules. The court can also make an order for
specific disclosure. A pretrial timetable and a date for the trial will also be set as part of a
comprehensive scheduling order.
One of the goals of the case management process is to structure pre-trial proceedings of a particular
case in manner that promotes the early exchange of information on key issues, so that the parties
will be in a better position to evaluate their claims and defence and achieve an early settlement of
the lawsuit. In those cases where an early settlement is not possible, the court can employ other
management techniques designed to eliminate frivolous issues and streamline the case so that it
may proceed to trial efficiently, solely on genuine issues of material fact.

Conclusion
The practice of active judicial case management in combination with the utilization of alternative
dispute resolution programs has substantially reduced excessive litigation costs and undue delay
in the resolution of civil cases in many jurisdictions where it is practiced.
In the United States for example statistics show that 95% of civil cases are resolved by settlement
without the need for a trial. Effective case management tailored to each particular case enables the
parties to evaluate their positions sooner and less expensively. Without active judicial case
management, the courts would be hampered in achieving the just, efficient, and inexpensive
resolution of civil disputes.

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