ADR As Appropriate, Not Alternative Dispute Resolution Mechanism In Family And Business Disputes In Ghana & Africa
For decades, ADR has been described as Alternative Dispute Resolution, as though it exists at the margins of the justice system. Within the African context, that description is neither historically accurate nor philosophically sound.
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In Ghanaian society, dispute resolution has always been relational. Matters were resolved before elders, chiefs, and family heads with the objective of restoring harmony, preserving dignity, and protecting communal stability. The emphasis was not solely on determining legal rights, but on sustaining relationships. In that sense, mediation is not an alternative to justice. It is its most appropriate expression.
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Recent developments on the continent reinforce this perspective. When Ugandan Chief Justice, Hon. Justice Dr. Flavian Zeija publicly indicated that family disputes should first undergo mediation before being entertained by the courts, the reasoning was grounded in both efficiency and humanity. Family conflicts involve children, shared property, reputational interests, and often enterprise value. Litigation may settle legal questions, but it frequently deepens personal fractures and exposes private lives to public scrutiny.
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Ghana’s recent experience illustrates the cost of litigation as the default first step.
The widely publicised divorce proceedings involving Richard Nii Armah Quaye attracted significant public commentary, with intimate and financial matters entering the public domain. These matters became national conversations. Yet children’s welfare, family privacy, and commercial stability were secondary to procedural litigation. Once disputes enter open court, confidentiality becomes limited, reputations are tested, and social media amplification follows. Most critically, children lose the protective shield of privacy.
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In the case, (Joana Quaye v Richard Nii Armah Quaye (SUIT No: DM/0569/2021), the High Court’s position, as widely reported, was grounded in orthodox company law. The Court held inter alia that, the divorce court cannot order a company to distribute assets or restructure its shareholding merely because spouses are litigating. To do so would amount to piercing the corporate veil, a remedy reserved for exceptional circumstances such as fraud or improper conduct.
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On that point, the legal principle is settled. The company is a separate legal person. The court cannot disregard that personality simply because the dispute arises within a marriage.
However, the more nuanced question lies elsewhere.
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A divorce court need not interfere with the company’s internal management to achieve equitable distribution. The proprietary interest of a spouse in shares is itself a matrimonial asset. Shares represent a bundle of rights, voting power, dividend entitlement, and residual value. The court may refrain from ordering the company to restructure, yet still determine the economic value of the spouse’s shareholding and treat that value as divisible property for purposes of equitable settlement.
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In doing so, the court respects the corporate veil while addressing the financial reality of the marriage. The company remains untouched. Corporate Governance remains intact. What is adjusted is the proprietary entitlement between spouses.
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This distinction is critical.
Where spouses are both life partners and business partners, strict compartmentalisation between family law and company law can produce outcomes that are technically correct yet practically incomplete. The matrimonial court may defer entirely to corporate law principles, while the company law framework offers no mechanism to address marital equity. The result is fragmentation. The dispute is sliced into silos rather than resolved holistically.
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This is precisely where the fusion of family and enterprise disputes becomes unavoidable.
In Ghana, many privately held companies are extensions of the family unit. Shareholding structures reflect marital and kinship arrangements. When such marriages break down, the dispute is never purely domestic nor purely commercial. It is both. Attempting to treat them as separate universes can leave one dimension under addressed.
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The reported posture of the court in the Quaye matter illustrates the limits of adversarial litigation when family and enterprise intersect. The judge may be institutionally bound to protect the corporate veil. Yet justice in relational disputes often requires economic creativity beyond strict doctrinal boundaries.
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That is the practical justification for positioning mediation as the first door in family and business disputes. It allows the law to respect formal structures while the parties negotiate equitable outcomes that courts, constrained by doctrine, may be reluctant or unable to craft.
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Ghana has already demonstrated institutional commitment to ADR within its statutory framework and court connected processes. The next progression is conceptual and procedural, repositioning ADR not as an alternative, but as Appropriate Dispute Resolution. In family and closely held enterprise disputes, mediation should be the first door.
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A mediation first model would not restrict access to the courts. Rather, it would ensure that disputes capable of structured settlement are resolved privately, efficiently, and with dignity. It would reduce judicial backlog, protect children, and preserve enterprise value. Only matters that genuinely require adjudication would proceed to trial.
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The conversation for Ghana is not whether mediation works. The evidence is clear. The question is whether we are prepared to make it the first step in disputes that are relational at their core.
If justice in Africa is to reflect the communal foundations upon which it was built, mediation must move from the margins to the mainstream. Appropriate Dispute Resolution is not a departure from tradition. It is a structured return to it, strengthened by professional standards and institutional discipline.
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It is within this framework that a Family and Enterprise Mediation Initiative, “FEMI”**, assumes practical relevance. Conceived as a structured, professional, and culturally attuned mediation platform, FEMI integrates marital, family, and enterprise dispute resolution under a coordinated model. By offering preventive and remedial mediation services for couples, extended families, high net worth households, and family owned enterprises, FEMI advances the philosophy of Appropriate Dispute Resolution. It seeks to restore sanctity to private conflicts, safeguard children from public spectacle, and protect wealth and governance continuity.
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**FEMI is a Caldwell Greene Legal Practitioners dispute resolution initiative