Appropriate Method
B. DISPUTANTS
6.3 Analysis of findings of the quantitative phase
6.3.2 Research Question Two: Which mechanism is ideal for selecting ‘A’DR method The study established the need for a mechanism as a yardstick for selecting an appropriate dispute
resolution method. The study found that reconciliation, expected outcome, relationship, fairness, and decision enforceability collectively constitute a mechanism for use in choosing an appropriate dispute resolution method. These findings are contrary to six (6) factors identified by Ling-Ye. 643 These findings are however in agreement with four (4) factors put forward by Ling- Ye, which are expected outcome (she referred to it as ‘outcome’), enforceability, relationship (she
642 Republic v High Court, Accra; Ex parte PPE Ltd, SC, Civil Motion No. J5/12/2007.
643 She Ling-Ye, ‘Factors which impact upon the selection of Dispute Resolution methods for commercial construction in the Melbourne industry: Comparison of the Dispute Review Board with other Alternative Dispute Resolution methods’ <https://www.irbnet.de/daten/iconda/CIB_DC24501.pdf> accessed 25 August 2021.
172
called it ‘relationship preservation’), and fairness (she called it ‘openness, neutrality, and fairness). These factors have been discussed below:
6.3.2.1 Reconciliation
Disputes destroy otherwise harmonious co-existence. It is therefore very significant that a method with sufficient structures to reconcile the disputants is employed with the view to allowing them to heal holistically. This may be possible using the principle referred to as ‘giving a little and receiving a little’644 by disputants. This is a central virtue of dispute resolution attempts. It is reached when disputants are brought to a point where they acknowledge their wrong and resolve to make amends.
A very important means of reconciling parties is using the ‘PEACE’ Model posited by Kudonoo.645 The ‘PEACE’ in the PEACE model stands for ‘people expressing accurately concerns and emotions’. This was built on Ghanaian values and the appreciative inquiry theory.
This theory recognizes that there is good in each person, and that relationships thrive when this good is identified, and tapped to create a new world. A world where disputants are healed and begin afresh as though nothing had happened between them. However, wisdom from experience especially of the elderly, Nananom (the chiefs), priests and priestesses are employed to unearth the truth. This truth is what Ajayi and Buhari646 described as the ‘covenant logo’. Disputants’
concerns and emotions need to be fully and properly expressed for healing to take place if reconciliation is to be attained.
Scholars such as Hopeson have argued that specific dispute resolution methods ought to be used if reconciliation is to be attained. Their view is that certain dispute resolution methods per their design are not ideal for reconciling disputants. In this respect the CounsMed Methodology647 - a
644 Adeyinka Theresa Ajayi and Lateef Oluwafemi Buhari, ‘Methods of conflict resolution in African Traditional Society [2014] African Research Review 147.
645 Enyonam C Kudonoo, ‘The PEACE Model: a sustainable approach to conflict prevention and resolution in Africa’ in Sherman W (ed) Handbook on Africa: Challenges and issues of the 21st Century Nova science publishers 2016) 18.
646 Ajayi and Buhari (n 529).
647 A methodology designed and launched by Dr. Emmanuel Hopeson in October 2019.
173
hybrid of counselling and mediation which employs psycho-analytical methods to explore disputants’ emotions and behavioural tendencies prior to a resolution attempt is a good option.
The effectiveness of CounsMed Methodology in healing and reconciling disputants is beyond dispute.648
In the traditional setting, depending on the offence, some sacrifices are performed to pacify the gods for instance. Libation is also poured to seek forgiveness and acceptance of apologies and seek reconciliation from the dead. Animals are slaughtered, traditional foods prepared, distributed, and eaten and schnapps shared to the elders and those present.
Therefore, a method with an inbuilt design that allows disputants to remove or be assisted to remove the canker and toxic occasioned by the dispute is preferred. This is very important because the traditional Ghanaian society sees dispute as a disturbance of the communal harmony.
6.3.2.2 Expected outcome
Disputants are at liberty to decide for themselves what they want out of a dispute resolution process. This expected outcome may be resolution, precedent, justice, specific performance, injunction,649 among others. A dispute resolution method therefore is a vehicle for conveying disputants to their expected destination. What it means is that the expected outcome (destination) will determine the dispute resolution method to use. The question to ask is whether a single dispute resolution method can envisage and for that matter be fitting for all possible dispute resolution outcomes. I do not see this to be feasible since user choices vary and change over time and circumstances may not make this static. However, there are popular expected outcomes to use. Again, some methods have the ability to craft remedies to meet the expectations of disputants.
What this finding mean is that designers of dispute resolutions have an obligation to ascertain what disputants’ expected outcomes are or likely to be. This may lead to specialization of dispute
648 Emmanuel Kokjo Hopeson, ‘CPR launches new approach to ADR’
<https://www.modernghana.com/news/497668/cpr-launches-new-approach-to.html> accessed 26 August 2021.
649 Hibberd R Peter and Neuman Paul, Alternative Dispute Resolution and Adjudication in Construction Disputes (Blackwell Science Malden MA 2000) 23.
174
resolution methods to deliver specific outcomes. This if properly done in my view will lead to increased user satisfaction and harmonious communal existence.
6.3.2.3 Relationship
The need to preserve disputants’ relationships is a key factor in selecting dispute resolution method.650 Relationship preservation is the backbone of traditional dispute resolution methods. In fact, it is believed that each individual in the community is related to another in one way or the other. In some cases, members of an entire community trace their lineage to a common ancestor.
It is for this reason that certain key assets of the community are owned by the indigenes collectively. That is why land for instance in the Ghanaian society is deemed to belong to the dead, living and the unborn. Relationship preservation is so fundamental that some scholars have argued for a therapeutic touch to be brought to dispute resolution.651
That is why when there is a standstill in a dispute resolution process, the elders resort to in camera discussions which are known as ‘going to see the old woman’. The purpose is to seek the ancient wisdom that will enable the dispute resolution stakeholders involved in the process arrive at a decision that will not lead to division but will preserve existing relationships and offering sustainable outcomes.
Relationship preservation becomes a delicate issue if the dispute involves parties in an employment relationship unless the disputants disinterested in maintaining their relationship. This is because the working relationship may be strained. Research has shown that the other dispute resolution methods are better at maintaining existing relationships.652
6.3.2.4 Decision enforceability
The decision arrived at after a dispute resolution process is known by different names. The decision arrived at after litigation is known as a judgment, that of arbitration is known as an award
650 Robert Benjamin, ‘The natural history of negotiation and mediation: the evolution of negotiative behaviours, rituals and approaches’<www.mediate> accessed 26 August 2021.
651 Silbey S Susan and Merry E Sally, ‘Mediator settlement strategies’ [1986] Journal of Law and Policy 10.
652 Agapiou Andrew, ‘The impact of mediation practice on and the resolution of grievances, the preservation of employment relationships and termination’ [2016] US-China Law Review 267.
175
(and a consent judgment if done in the court) and that of mediation is called settlement or consent judgment (as the case may be). It is obvious from the discussions under research question one (1) above that the three dominant dispute resolution methods deliver enforceable outcomes. These methods are litigation, arbitration and mediation.
While disputants look at the expected outcome of a dispute resolution process, the ability to enforce that outcome is equally important. The agreement arrived at after negotiation is not binding on parties.653 Settlement agreements of mediation are binding on disputants if they sign it654 and it will have the same weight as that of an arbitral award.655 A customary arbitration award is binding on the disputants and parties claiming through and under it and is enforceable in the same way a judgment of the court is enforced.656 Arbitral award is binding on the disputants and enforceable like a court judgment.657 A judgment - the outcome of litigation, can be enforced based on the specific relief granted by the court. In fact, litigation is seen as the dispute resolution method that offers the most enforceable outcomes. It is also seen as the only one which offers precedents for instance.
The cost and length of time taken to enforce the outcome of a dispute resolution process is worthy of consideration. Disputants ought to pay closer attention to these issues. Sustainable dispute resolution is endured if these factors are objectively and comprehensively considered in designing and selecting dispute resolution for use.
6.3.2.5 Fairness
At the point of selecting a dispute resolution method, disputants are already in an unusual psychological state and the least a dispute resolution method can do is offer a soothing process.
A method that creates a very conducive atmosphere for disputants to ventilate is a good start.
Procedural fairness is of outmost importance. Fairness is subjective even though it is expressed
653 Alternative Dispute Resolution Act 798 of 2010, s 113(c).
654 Ibid section 81(3).
655 Act 798 (n 530), s 82.
656 Ibid sections 109(a) and 111.
657 Act 798 sections 52 and 57(1).
176
in some basic principles. This includes objectivity and neutrality in commentary, questioning, gestures, among others.