Alternative Dispute Resolution and Negotiation in Practice
This domain tests whether you can route a dispute into the right forum and negotiate a settlement that holds. Scenarios usually turn on an arbitration clause, a mediation that is about to conclude, or an offer made without prejudice.
The statutory frame
The Alternative Dispute Resolution Act 2010 (Act 798) covers arbitration, mediation and customary arbitration. Under an arbitration agreement in writing, a party who is sued in court may apply for a stay so the matter goes to arbitration. The tribunal decides its own jurisdiction, and the award is final and binding, subject only to limited challenge on grounds such as lack of jurisdiction, serious irregularity or public policy. Enforcement is by the High Court, which may enter judgment on the award. Mediation is voluntary and confidential, and the mediator does not decide; a settlement is reduced to writing and is enforceable. Customary arbitration is recognised where submission was voluntary and the parties agreed to be bound.
Negotiation
Separate interests from positions, work out your client's best alternative to a negotiated agreement, and identify the zone of possible agreement. Confirm authority to settle before the meeting. Mark offers without prejudice, and document any settlement immediately as terms of settlement or a consent judgment.
Worked example
A client wants to sue a supplier for breach of a supply contract that contains an arbitration clause. Reasoning: issuing a writ invites a stay application, with costs and delay. Instead, commence arbitration in accordance with the clause, preserve evidence and limitation, and prepare a settlement position. If the client insists on litigation, advise in writing of the risk of a stay.
Traps that cost marks
Drafting an arbitration clause with no seat, rules or number of arbitrators. Negotiating beyond your authority. Disclosing without-prejudice correspondence to the court. Leaving a settlement unsigned. Assuming a mediated settlement can be appealed like a judgment. Assuming an arbitration award is unenforceable without a fresh trial.
Risk Management, Professional Indemnity and Compliance
This domain tests whether you can see risk before it becomes a claim: missed deadlines, lost files, conflicts, undertakings and money. Questions typically present an emerging problem and ask what you do in the first 48 hours.
Risk identification and controls
Maintain a risk register covering limitation dates, conflicts, undertakings, client money, supervision, IT and key-person dependency. Controls include engagement letters, four-eyes review, a diary entered twice and checked weekly, an undertakings register with an owner and deadline, dual signatories on client account payments, and annual retainer reviews.
Compliance calendar
Track practising certificates, professional association dues, PAYE, VAT, corporate tax, SSNIT and Tier 2 contributions, Data Protection Commission registration, and customer due diligence and reporting obligations under the Anti-Money Laundering Act 2020 (Act 1044). A firm that cannot produce a compliance calendar is failing a basic control.
Professional indemnity
Know what the policy covers, its exclusions, its excess and its notification conditions. Cover is normally for civil liability in professional services; dishonesty and known circumstances before inception are typically excluded. On a potential claim: notify insurers promptly, do not admit liability, preserve the file intact, appoint one person to handle the response, and consider separate advice for the firm where the client's interests diverge from the firm's.
Worked example
A limitation date on a contract claim was missed. Reasoning: notify the insurer immediately; tell the client honestly and advise them to take independent advice; quantify exposure by reference to the value of the lost claim and the prospects that were lost; consider a negotiated resolution; and record remedial steps, such as a new diary system with partner sign-off. Hiding the error, or creating documents afterwards, converts a negligence claim into a disciplinary and possibly criminal matter.
Traps that cost marks
Trying to fix the file retrospectively. Delaying insurer notification until cover is jeopardised. Forgetting an undertaking given to another lawyer or to the court. Assuming indemnity covers deliberate dishonesty.
Marketing, Business Development and Access to Justice
This domain tests how a firm may attract work without breaching the rules against touting and self-laudation, and how the profession meets its access to justice obligations in Ghana.
What is permitted and what is not
LI 613 prohibits touting, self-laudation and improper solicitation. Permitted: accurate letterhead and office signage, entries in reputable law directories, a factual website listing practice areas and contacts, legal updates, seminars and CPD events, and responding to enquiries that come to you. Risky or prohibited: claims to be the best lawyer, win-rate statistics, guarantees of outcome, paying an agent a share of fees for introducing clients, and using client names or stories without written consent. Approaching an accident victim or a bereaved family is the classic example of touting.
Business development that complies
Build referral relationships with accountants, surveyors, corporate counsel and foreign law firms, but never share fees with a non-lawyer. Pay for services, not for clients. Publish accurate client alerts and run training for clients; inaccurate marketing is both a conduct risk and a negligence risk.
Access to justice
The Legal Aid Commission Act 2018 (Act 977) established the Legal Aid Commission to provide legal aid, and lawyers may be assigned to legal aid work. Firms can run legal aid clinics, offer fixed-fee unbundled services such as drafting only, use ADR under Act 798 as a cheaper route, and provide plain-language information. Court fees, travel and delay are practical barriers that pro bono and unbundled work address.
Worked example
A marketing consultant offers to supply personal injury clients for 20 per cent of fees. Reasoning: this is touting combined with fee-sharing with an unqualified person, and it breaches LI 613 regardless of how the contract is dressed up. The firm declines. Compliant alternatives: train reception staff in client care, publish accurate articles on accident claims procedure, join professional referral networks with no per-client payment, and record pro bono hours.
Traps that cost marks
Promising no win, no fee without checking legality and client protection. Advertising a specialism you cannot support. Using a client testimonial with a name and photograph without consent. Paying for leads.