The role of alternative dispute resolution in the settlement of construction disputes in Ghana

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Alternative Dispute Resolution (ADR) is an expression for the dispute resolution mechanisms, which serve as alternatives to litigation. The most basic processes used are negotiation mediation, conciliation, mediation-arbitration (med-arb), mini trial, arbitration, case evaluation and court ordered arbitration. Arbitration came with the promise of flexible proceedings, less expensive, non-confrontational approach, satisfactory outcome, among other benefits, in the settlement of commercial disputes. But unfortunately, this method has become similar to the traditional litigation due to the high dominance of the legal professionals and the court proceedings in the arbitration process. This has made the whole arbitration process expensive, time consuming and devoid of privacy and emotional expressions, thus losing almost all of its benefits to the other ADR methods. The research sought to identify the various alternative dispute resolution methods that are used in the Ghanaian construction industry and how they contribute effectively towards the settlement of disputes prevalent in the industry. The specific objectives were to identify the factors enhancing or limiting the use of other alternative dispute settlement methods apart from litigation and binding arbitration, investigate the extent of knowledge and application of the ADR techniques in dispute settlement in the construction industry, and to recommend appropriate ADR methods that could be most suitable and readily used to resolve construction disputes. The research comprised an extensive literature search on dispute resolution methods, a questionnaire survey and interviews among the consultants. Data obtained from the survey were critically analysed. The research revealed that, negotiation and arbitration (only when parties agree to arbitrate) were the most widely used methods to settle construction disputes. Very few consultants were well informed of the other ADR methods while a large number of them had little or no practical experience in the methods, especially mediation, conciliation and the hybrids. Thus, the extent of practical knowledge of the other ADR methods to some degree had not caught up well with the construction professionals.
A thesis submitted to the School of Graduate Studies, Kwame Nkrumah University of Science and Technology in partial fulfilment of the requirements for the award of Master of Science in Construction Management, 2002