🇬🇭Ghana’s Alternative Dispute Resolution Act: A Modern Framework Rooted in Choice, Settlement and Tradition

by Pierfrancesco C. Fasano

Alternative Dispute Resolution is often presented as an alternative to litigation. Ghana’s legal framework goes further. Under the Alternative Dispute Resolution Act, 2010 (Act 798), ADR forms part of a structured system of dispute resolution in which arbitration, mediation and customary methods coexist with the courts.

Enacted on 31 May 2010, Act 798 provides a comprehensive statutory framework for the settlement of disputes through arbitration, mediation and customary arbitration, while also providing for the establishment of an Alternative Dispute Resolution Centre.

The result is particularly interesting from a comparative perspective. Ghana combines internationally recognisable ADR principles — party autonomy, impartiality, confidentiality and enforceability — with mechanisms reflecting the country’s own legal and customary traditions.

A broad framework, but not an unlimited one

The starting point is section 1 of Act 798.

The Act applies broadly to disputes capable of being resolved through ADR, but expressly excludes matters relating to national or public interest, the environment, the enforcement and interpretation of the Constitution, and any other matter which, by law, cannot be settled through an ADR method.

This distinction is important. ADR under Ghanaian law is not conceived as a substitute for the judicial system in every field. Rather, it operates within boundaries determined by the nature of the rights and interests involved.

Within those boundaries, however, the legislation gives the parties considerable freedom to determine how their dispute should be resolved.

Arbitration: autonomy supported by the courts

Part One of Act 798 establishes the framework for arbitration.

An arbitration agreement must generally be in writing, although the statutory concept of writing is deliberately practical: it encompasses exchanges of letters, fax, email and other forms of communication providing a record of the agreement. The Act also recognises the separability of the arbitration agreement from the underlying contract.

Party autonomy is a recurring feature of the legislation. The parties have significant freedom in shaping the proceedings, whilst the Act provides safeguards concerning procedural fairness, impartiality and the proper conduct of the arbitration.

Privacy and confidentiality also receive express protection. Unless otherwise agreed, arbitral hearings are private and the arbitrator is required to ensure the confidentiality of the arbitration, subject to the statutory framework.

The relationship between arbitration and the courts is therefore not one of competition, but of complementary functions.

This becomes particularly clear at the enforcement stage. Under section 57, an arbitral award may, with leave of the High Court, be enforced in the same manner as a judgment or order of the Court, and judgment may be entered in the terms of the award. At the same time, section 58 establishes defined grounds upon which an award may be set aside, including lack of capacity, procedural defects, excess of jurisdiction, undisclosed conflicts of interest, non-arbitrability, fraud or corruption.

Ghana and international arbitration

Act 798 also gives Ghana’s arbitration framework an international dimension.

Section 59 regulates the enforcement of foreign arbitral awards. Among other possibilities, enforcement may be based upon the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which is expressly reproduced in the First Schedule to the Act.

This is commercially significant.

For businesses entering cross-border transactions involving Ghana, arbitration can therefore provide not merely an alternative forum for resolving disputes, but a mechanism supported by an internationally recognised system for the recognition and enforcement of awards.

Mediation: consent remains at the centre

Part Two of Act 798 is devoted specifically to mediation.

Its starting principle is consent. Under section 63, a dispute arising from an agreement may be submitted to mediation with the consent of the other party. The parties may select an institution or an individual mediator and, unless they agree otherwise, the process is conducted by a single mediator.

The legislation gives the parties substantial control over the process. They may appoint a mediator they consider acceptable and may be represented by a lawyer, expert or another person of their choice.

The mediator, meanwhile, must act independently and impartially. Potential circumstances creating a likelihood of bias, or otherwise affecting the conduct of the mediation, must be disclosed. Sections 67 and 68 therefore translate the general principle of neutrality into specific statutory duties.

The mediator is not a judge. The Act defines mediation as a non-binding process in which an impartial person assists the parties in reaching their own resolution. The distinction is fundamental: decision-making authority remains with the parties rather than being transferred to the neutral.

Confidentiality as a statutory safeguard

One of the strongest features of the Ghanaian mediation framework is the protection afforded to confidentiality.

Section 79 provides that records, reports, settlement agreements — subject to disclosure where necessary for implementation or enforcement — and other documents required in the course of mediation are confidential and cannot ordinarily be used as evidence or made subject to discovery in court proceedings.

A mediator is likewise prohibited from disclosing information obtained during the mediation to persons outside the process without the parties’ consent. Statements and information arising from mediation are also protected against subsequent evidential use.

Confidentiality is therefore more than professional practice or contractual convention: it is embedded in the statutory architecture of the process.

When settlement becomes legally binding

Act 798 draws an important distinction between the mediation process and its outcome.

Mediation itself does not compel the parties to settle. Either party may bring the process to an end in the circumstances contemplated by section 80. If, however, the parties reach agreement and sign a written settlement agreement, section 81 provides that they are deemed to have agreed that the settlement is binding upon them and upon persons claiming under them.

Section 82 goes further: where the parties agree that the settlement is binding, it has the same effect as an arbitral award under section 52.

This gives mediation a particularly valuable combination: consensual decision-making during the process, followed by legal certainty once settlement has been reached and formalised.

The position is even more direct in court-referred mediation. Under section 64, a court may refer a pending matter, or part of it, to mediation where this may facilitate resolution. If settlement follows, it is drawn up and filed with the court, recorded as a judgment and enforceable accordingly. If mediation fails, the judicial proceedings resume from the point at which the referral was made.

ADR and litigation are thus capable of operating sequentially and cooperatively rather than as mutually exclusive systems.

A distinctive feature: customary arbitration

Perhaps the most distinctive element of the Ghanaian model is Part Three of Act 798, dealing with customary arbitration.

The Act formally recognises dispute resolution rooted in customary practice whilst placing it within a statutory framework.

Consent remains indispensable. Section 90 makes clear that customary arbitration cannot simply be imposed upon an unwilling party: acceptance of the process is required and no person may be forced or coerced into submitting to customary arbitration.

Once rendered, a customary arbitration award may be registered with the appropriate District Court, Circuit Court or High Court and may be enforced in the same manner as a court judgment. The legislation nevertheless preserves judicial safeguards, allowing an award to be challenged on specified grounds, including breach of natural justice, miscarriage of justice or inconsistency with the known customs of the relevant area.

Act 798 even recognises the customary procedure of “negotiation for a settlement”, under which parties retain the ability to withdraw and are not bound to accept the proposed settlement unless the statutory conditions for acceptance are satisfied.

This aspect of the Act is particularly noteworthy. Rather than replacing customary approaches with an exclusively imported model of ADR, the legislation integrates them into the formal legal order.

From alternative justice to integrated dispute resolution

More than fifteen years after its enactment, Act 798 remains an instructive example of how ADR can be incorporated into a national justice system.

Its importance lies not simply in encouraging parties to avoid court proceedings. The Act creates different pathways for different disputes: adjudicative arbitration, consensual mediation, court-connected settlement and customary arbitration.

Across those mechanisms, several principles recur: consent, party autonomy, impartiality, confidentiality, procedural fairness and enforceability.

For businesses and legal practitioners, this means that dispute resolution in Ghana should not necessarily begin with the question, “Which court has jurisdiction?” An equally important preliminary question may be: “Which process is best suited to resolving this particular dispute?”

Conclusions

Ghana’s Alternative Dispute Resolution Act, 2010 demonstrates that ADR need not sit at the margins of a legal system.

Arbitration is supported by judicial enforcement and an international recognition framework. Mediation preserves the parties’ control whilst giving properly concluded settlements significant legal effect. Court-referred mediation creates a bridge between consensual and judicial dispute resolution. Customary arbitration acknowledges local traditions whilst subjecting their outcomes to fundamental safeguards of fairness and justice.

The broader lesson is straightforward: effective dispute resolution is not necessarily about choosing between courts and ADR, but about designing a legal system in which different processes can perform the functions for which they are best suited.

In that respect, Ghana’s Act 798 offers an interesting model of legal pluralism: modern without disregarding tradition, consensual without sacrificing enforceability, and flexible without abandoning the safeguards of the rule of law.