Fordham Law School

FLASH: The Fordham Law Archive of Scholarship and History

Faculty Scholarship

2014

Procedural Justice Beyond Borders: Mediation in Ghana

Jacqueline Nolan-Haley
Fordham University School of Law, [email protected]

James Kwasi Annor-Ohene

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Part of the Comparative and Foreign Law Commons, and the Dispute Resolution and Arbitration
Commons

Recommended Citation
Jacqueline Nolan-Haley and James Kwasi Annor-Ohene, Procedural Justice Beyond Borders: Mediation in
Ghana, 2014 Harv. Negot. L. Rev. Online 1 (2014)
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/516

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 PROCEDURAL JUSTICE BEYOND BORDERS:
MEDIATION IN GHANA
____________________________________________________

Jacqueline Nolan-Haley and James Kwasi Annor-Ohene, Rev.*

I. INTRODUCTION

Ghana enacted comprehensive alternative dispute resolution (ADR)

legislation in 20101 (“The Act”), with the specific goals of providing access to
justice and promoting domestic and foreign direct investment.2 A significant
aspect of the Act was the inclusion of customary ADR processes in the legislation
along with statutory ADR. As a result, customary arbitration and mediation were
mainstreamed into Ghana’s civil justice system.
While commentary on the Act has focused generally on the significance of
codifying customary arbitration,3 the focus of this Article is on mediation. The
                                                                                                                       
* Jacqueline Nolan-Haley is Professor of Law at Fordham University School of Law and
Director of the Fordham Law School ADR & Conflict Resolution Program. Rev. James Kwasi
Annor-Ohene is a Visiting Foreign Scholar at Fordham University School of Law. The authors
thank Professors Michal Alberstein, Elayne Greenberg, Paul Kirgis and Bobbi McAdoo for
helpful comments on the survey and text, Megan Reinhardt for excellent research assistance,
Professors John Feerick and Dennis Lynch for outstanding leadership in the Ghana Mediation
Project, Professors Nene Amegatcher and Michael Owusu for support within Ghana, and Fordham
Law School for providing financial support.
1
Alternative Dispute Resolution Act, Act 798, 2010 (Ghana) available at
http://mariancrc.org/wp-content/uploads/2011/09/Alternative-Dispute-Resolution-Act-2010-Act-
798.pdf [hereinafter The Act].
2
Chief Justice Georgina T. Wood, Keynote Address at the Catholic University, Fiapre, Sunyani:
The Inauguration of the Marian Conflict Resolution Center (Aug. 1, 2011), available at
http://mariancrc.org/wp-content/uploads/2011/09/MCRC_openingKeynote.pdf. Another impetus
for increasing the use of ADR has been the perception of judicial corruption in Ghana where
litigants may be required to give bribes before attention is paid to their cases. Senyo M. Adjabeng,
“Using ADR to reduce judicial corruption and the cost of accessing justice in Ghana,” EFFECTIVE
JUSTICE SOLUTIONS (2010), available at
http://effectius.com/yahoo_site_admin/assets/docs/Using_ADR_to_reduce_judicial_corruption_an
d_the_cost_of_accessing_justice_in_Ghana7020052.16763145.pdf.
3
See, e.g., Kwadwo Sarkodie, Arbitration in Ghana: The Alternative Dispute Resolution Act
2010 (Oct. 2011) available at http://www.mayerbrown.com/files/Publication/5ee12231-1295-
4559-8167-89d93cdf2a06/Presentation/PublicationAttachment/91e048fe-67d4-4e3f-9d10-
8bbf9861e753/ArbitrationGhana_Sarkodie.pdf; Paul Kirgis, Customary Arbitration in an Evolving
Africa (Aug. 2011) available at http://www.indisputably.org/?p=2592; Funke Adekoya, LCIA and
Ghana Arbitration Centre symposium: the new Alternative Dispute Resolution Act 2010 (Dec.
2010) available at http://us.practicallaw.com/2-504-1004. See also Emilia Onyema, The New
Ghana ADR Act 2010: A Critical Overview, 28 ARBITRATION INTERNATIONAL 101 (2012)
(discussing both arbitration and mediation provisions in the new act).
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PROCEDURAL JUSTICE BEYOND BORDERS

Act’s provisions on statutory [“modern”] mediation are noteworthy as this is the

first time that mediation has been included in a statute in Ghana. The statutory
definition of mediation reflects an understanding of the mediation process based
upon individual autonomy and party self-determination,4 principles that represent
a significant departure from the more communal values of customary ADR under
which mediation is practiced in Ghana.5 The individualist orientation of modern
mediation challenges what has traditionally been considered a collectivist
culture.6
Whether the new ADR law has been successful in achieving its goals is
too soon to determine. However, it may be possible to assess one aspect of the
access to justice goal by examining the parties’ experiences using ADR processes
pursuant to the Act. One yardstick for measuring success in achieving access to
justice is the degree to which parties experience procedural justice or fairness
when they participate in dispute resolution processes. Studies show that
procedural justice can foster perceptions of legitimacy.7 Where parties report
positive experiences of procedural justice, they are generally satisfied with the
process and tend to comply with outcomes.8
During the summer of 2013, the authors conducted a preliminary study of
parties’ experiences participating in modern mediation and their perceptions of
the process. In this article, we report the findings of that study.9 Using a
procedural justice framework, we consider whether parties believe that their
mediation experience was fair, whether they had an opportunity to express
themselves during the process, whether they felt they were treated with respect,
whether, overall, they felt that the process was fair, and whether they were
satisfied with the outcome. Our findings, based on a limited sample, show that
with respect to the issues of ability to express one’s views, respect, and fairness,
that parties experienced high levels of procedural justice. However, on the issue
                                                                                                                                                                                                                                                                                                                                   
4
The Act, supra note 1, Sect. 63-88, 135. There is a provision, however, for the courts to refer
parties to mediation. Id. Sect. 64(1)(A).
5
However, as my colleague Professor Elayne Greenberg has observed, to the extent that self-
determination is shaped by the integrated values that the individual considers important, the
Ghanaians participating in the survey may have conceived of a variant of self-determination that is
shaped by their collectivist values and looks somewhat different from a U.S. participant’s
interpretation of self-determination.
6
See Walter A. Wright, Cultural Issues in Mediation: Individualist and Collectivist Paradigms,
Mediate.com (Jan. 2000) http://www.mediate.com/articles/wright.cfm (n. 9 citing Ghana as a
predominantly collectivist country). See also Joseph Blocher, Building on Custom: Land Tenure
Policy and Economic Development in Ghana, 9 YALE HUM. RTS. & DEV. L. J. 166, 179 (2006).
7
See e.g., Rebecca Hollander-Blumoff & Tom R. Tyler, Procedural Justice and the Rule of
Law: Fostering Legitimacy in Alternative Dispute Resolution 1 J. DISP. RESOL. 1 (2011).
8
See infra text accompanying notes 38-47.
9
This study is a project of the Marian Conflict Resolution Center in Ghana. See infra text
accompanying notes 49-86.

 
 
 3
PROCEDURAL JUSTICE BEYOND BORDERS

of satisfaction with the outcome of their mediations, parties experienced a slightly

lesser degree of procedural justice.

II. ADR DEVELOPMENT IN GHANA

A. Customary Dispute Resolution

Ghana has a legally pluralistic justice system where customary law co-
exists with common law.10 There is a long history of arbitration and mediation
[“customary ADR”] use in Ghana that dates to pre-colonial times.11 Parties who
live in remote areas of the country without access to the courts are more likely to
use customary dispute resolution processes than the formal court system to
resolve their disputes.12 The main actors in customary dispute resolution are
family heads/elders, tribal chiefs and queen mothers, who resolve conflicts13
through arbitration, mediation and other settlement processes.

B. Modern Dispute Resolution

Today, Ghana is considered a leader among other African countries in

promoting modern ADR processes,14 and in institutionalizing the mediation
process.15 The development of modern ADR in Ghana began with the passage of
the Courts Act of 1993 (ACT 459) which encouraged the use of ADR in the
courts.16 A series of ADR events following in rapid succession established a firm
foundation for Ghana’s ADR leadership. The Ghana Arbitration Centre was

                                                                                                                       
10
Customary law in Ghana is defined in section 11(3) of the Ghana Constitution as “the rules of
law, which by custom are applicable to particular communities in Ghana.” CONSTITUTION OF THE
REPUBLIC OF GHANA, Sec. 11(3), (1992).
11
Wood, supra note 2, at 2.
12
In many remote areas of Ghana, there are no roads to facilitate transportation to the courts.
13
See K. A. BUSIA, THE POSITION OF THE CHIEF IN THE MODERN POLITICAL SYSTEM OF ASHANTI
(1968); Louise Mueller, The persistence of Asante chieftaincy under colonial rule: explanation of
an enigma, Africana Studia No. 15, pp. 61-85 (2010).
14
Commercial Law Development Program U.S. Department of Commerce, Alternative Dispute
Resolution Services in West Africa: A Guide for Investors, (2003) at page 17 available at
http://www.fdi.net/documents/WorldBank/databases/benin/westafricaguide7212003.pdf.
15
There have been parallel developments in advancing the mediation process to resolve political
conflicts. Ghana established a National Peace Council in 2006 to develop mechanisms for conflict
prevention and resolution. Emmanuel Kotia & Festus Kofi Aubyn, Sustainable Peace in Africa:
Understanding the Role of the National Peace Council in Ghana, Kennesaw State University
(2013) at page 3 available at
http://works.bepress.com/cgi/viewcontent.cgi?article=1019&context=emmanuel_kotia. In 2011, it
passed legislation formalizing the council. Republic of Ghana, National Peace Council Act, Act
818, (2011) available at http://www.i4pinternational.org/files/191/7.+ghana.pdf.
16
Senjo M. Adjabeng, Alternative Dispute Resolution in Ghana (2007) available at
http://www.mediate.com/articles/adjabengs3.cfm

 
 
 4
PROCEDURAL JUSTICE BEYOND BORDERS

created in 1996 to deal with commercial cases.17 In 2001 the Lord Chief Justice
established an ADR Task Force to make policy recommendations for
implementing ADR in the judicial system.18 Court-connected ADR programs
followed in 2002.19 The Labour Act was enacted in 2003 to facilitate the
resolution of labor disputes through ADR processes20 and in 2005 the Lord Chief
Justice issued a policy directive to institutionalize ADR in the judicial system.21
The Ghanaian judiciary responded by establishing a five year “Strategic Plan for
ADR Program,”22 and in 2009, the Chief Justice established a separate National
ADR Directorate to coordinate all ADR activities within the Judicial Service.23
All of these efforts culminated in the passage of The Alternative Dispute
Resolution Act, Act 798 (The Act) in 2010.24

C. Merger of Customary and Modern Dispute Resolution

A significant aspect of The Act is the inclusion of customary arbitration

and mediation in the legislation,25 thereby elevating these processes into the
formal civil justice regime. Whether the term “negotiation” is included in the Act
is debatable.26 Customary arbitration is defined in the Act as “the voluntary
submission of a dispute, whether or not relating to a written agreement for a final
binding determination under . . . this Act.”27 Unlike modern arbitration, customary
arbitration does not focus on writing. It is guided by the rules of “natural justice
and fairness” rather than specific legal rules.28
Customary mediation is referred to in the Act as negotiation for
settlement,29 and customary mediated settlement agreements are non-binding.
                                                                                                                       
17
The Ghana Arbitration Centre, Background Information,
http://www.ghanaarbitration.org/about-us/background.html (last visited Oct. 22, 2013).
18
ADR Resources, Ghana Commits to Strengthening a Wider Use of ADR to Resolve Disputes,
(2008), available at http://adrresources.com/adr-news/608/arbitraje-mediacion-ghana.pdf.
19
Commercial Law Development Program U.S. Department of Commerce, supra note 14, at 18.
20
Labour Act of 2003, Act 651, (Ghana), available at
http://www.refworld.org/pdfid/44bf88234.pdf.
21
ADR Resources, supra note 18. See also National ADR Programme: Inputs for annual report
for May 2012-May 2013, The Judicial Service of Ghana (Jul. 8 2013),
http://www.judicial.gov.gh/index.php/2013-01-28-08-11-41/strategic-plan.
22
National ADR Programme, supra note 21. In 2013 the Ghanaian Judiciary updated the
Strategic Plan and reported on the success of the initial plan. See id.
23
Judicial Service embraces Alternative Dispute Resolution (August 24, 2006), available at
http://www.ghanadistricts.com/news/?read=28254.
24
For a general discussion of the Act, see Onyema, supra note 3.
25
The term “alternative dispute resolution” explicitly includes arbitration, conciliation, and
mediation. The Act, supra note 1, at Sect. 135.
26
See Nene A. O. Amegatcher, A Daniel Comes to Judgment: Ghana’s ADR Act, A Progressive
or Retrogressive Piece of Legislation (September 20, 2011) paper delivered at the Ghana Bar
Association Annual Conference (on file with the authors).
27
The Act, supra note 1, at Sect. 135.
28
Id. at Sect. 93(1).
29
Id. at Sect. 113.

 
 
 5
PROCEDURAL JUSTICE BEYOND BORDERS

Modern mediation is understood in the Act as a “facilitative process in which the

parties discuss their dispute with an impartial person who assists them to reach a
resolution.”30 Although it is a process based on party consent, the court can also
refer parties to mediation.31 If the parties reach a settlement in mediation, their
agreement has the same status as an arbitral award.32

D. Responses to the Act

Reactions to the Act have been generally favorable. Retired Justice

Edward Torgbor has commented that it should be viewed with “celebration.”33 A
leading ADR practitioner and President of the Ghanaian Bar Association has
described it as “indeed a Daniel come to judgment, solving what was once the
predicament of Ghanaians who had to resort to the expense, delay and adversarial
nature noted with the normal court process.”34 The Chief Justice of Ghana,
Georgina T. Wood, has promoted The Act as an all purpose “stand alone” law that
will promote ADR as a method of dispute resolution, enhance access to justice
and promote domestic and foreign direct investment to stimulate economic
growth.35
Since the passage of the Act, there has been significant energy expended
towards developing public awareness of ADR processes. The Judicial Service of
Ghana has been active in supporting mediation training, public education, and in
fostering court-connected programs. To date, 47 district and circuit courts have
been involved with the Court Connected ADR [CCADR] program and there are
plans for mediation to be mainstreamed into all courts in the country by 2017. The
available data for the year May 2012-2013 shows that of the 4918 cases that were
mediated in various court-mediation programs throughout the country, 2,248
cases were successfully settled, representing a 46% settlement rate.36 This is
slightly lower than the settlement rate of 52.3% for cases mediated between 2007
and 2012.37

                                                                                                                       
30
Id. at Sect. 74(1) & 135.
31
Id. at Sect. 64 (1).
32
Noting the differences between mediation and arbitration under the Act, one scholar has
questioned whether such an award may be enforceable in jurisdictions outside Ghana. Onyema,
supra note 3, at 121.
33
Hon. Justice Edward Torgbor, Ghana Outdoors: The New Alternative Dispute Resolution Act
2010 (Act 798): A Brief Appraisal, 77 THE INTERNATIONAL J. OF ARBITRATION, MEDIATION AND
DISPUTE MANAGEMENT 211 (2011).
34
Amegatcher, supra note 26.
35
Wood, supra note 2.
36
See National ADR Programme, supra note 21.
37
See Modern Ghana News, Judicial Service expands Alternative Dispute Resolution, (Mar. 13,
2013), http://www.modernghana.com/news/453363/1/judicial-service-expands-alternative-
dispute-resol.html.

 
 
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PROCEDURAL JUSTICE BEYOND BORDERS

III. WHY PROCEDURAL JUSTICE MATTERS

Over the last 20 years, there has been a considerable amount of research
on the salutary effects of procedural justice38 generally, with “dispute resolution
processes” in particular,39 and more recently in judicial settlement processes.40
Empirical research shows that if parties believe that they have been treated fairly
both in third party decision-making processes, as well as in negotiation41 and in
mediation,42 then they view the outcome of those processes as fair even if the
outcome is not in their favor.43 To the extent that parties believe that the process
has been fair, there is likely to be compliance with the outcome.44 This perception
has spillover effects with organizational and institutional ADR providers.
Perceptions of fairness about the process lead to perceptions of provider
legitimacy.45
As a general matter, researchers have found that the degree to which
parties experience procedural justice depends upon four critical considerations:
(1) whether they had an opportunity to express their feelings and tell their view of
the situation (referred to as “voice); (2) whether they believe they were treated
respectfully; (3) whether they believe that they were treated even-handedly, i.e. in
the same manner as others and (4) whether the decision-maker acted fairly and
could be trusted.46 Procedural justice advances the perception of legitimacy,47
produces party satisfaction with the process, and ensures greater compliance with
the outcome.
                                                                                                                       
38
See Rebecca Hollander-Blumoff, Just Negotiation, 88 WASH U. L. REV. 381, 385 (2010);
Nancy Welsh, Perceptions of Fairness in Negotiation, MARQUETTE L. REV. 753, 763-765 (2004).
See also Nancy Welsh & Andrea Kupfer Schneider, The Thoughtful Integration of Mediation into
Bilateral Investment Treaty Arbitration, 18 HARV. NEG. L. REV. 71, n. 83 (2013) (citing studies on
procedural fairness); Donna Shestowsky, The Psychology of Procedural Preference: How
Litigants Evaluate Legal Procedures Ex Ante, 99 IOWA L. REV. 637, 645-48 (2014).
39
Welsh & Schneider, supra note 38, at n.96.
40
Nancy Welsh, Bobbi McAdoo & Donna Stienstra, The Application of Procedural Justice
Research to Judicial Actions and Techniques in Settlement Sessions, in THE MULTI-TASKING
JUDGE: COMPARATIVE JUDICIAL DISPUTE RESOLUTION (Tania Sourdin & Archie Zariski, eds.,
2013).
41
Rebecca Hollander-Blumoff & Tom R. Tyler, Procedural Justice in Negotiation: Procedural
Fairness, Outcome Acceptance, and Integrative Potential, 33 LAW & SOC. INQUIRY 473, (2008);
Hollander-Blumoff, supra note 38, at 384.
42
See e.g., Nancy A. Welsh, Making Deals in Court-Connected Mediation: What’s Justice Got
To Do With It?, 79 WASH. U. L. Q. 787 (2001).
43
See E. A. LIND & T. R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE 66-70,
205-206 (1988); see also JOHN THIBAUT & LAURENS WALKER, PROCEDURAL JUSTICE: A
PSYCHOLOGICAL ANALYSIS (1975).
44
See e.g., T. R. Tyler, Social Justice: Outcome and Procedure, 35 INTERNATIONAL JOURNAL OF
PSYCHOLOGY 117, 119 (2000).
45
See e.g., LIND & TYLER, supra note 43, at 209; TOM R. TYLER, WHY PEOPLE OBEY THE LAW
93-108 (1990).
46
Welsh, McAdoo & Stienstra, supra note 40, at 69.
47
Hollander-Blumoff & Tyler, supra note 7, at 7.

 
 
 7
PROCEDURAL JUSTICE BEYOND BORDERS

We wondered about the extent to which the conclusions from research on

procedural justice would hold true in the sub-Saharan country of Ghana, given the
legal and cultural differences between Ghana and the western countries where
much procedural justice research is sourced.48 When a developing and emerging
democratic country such as Ghana introduces new forms of dispute processing
such as statutory mediation in the formal legal system, possibly challenging or
disrupting customary mediation practices, perceptions of procedural justice are
critical for purposes of user buy-in and ultimately, of legitimacy.

IV. THE SURVEY AND FINDINGS

A. Background to the survey

For the last three years, the authors have been engaged in a collaborative
project with Fordham Law School, Saint John’s School of Law, the Giving to
Ghana Foundation and two professors from the Ghana School of Law to establish
a conflict resolution center in an area of Ghana where parties have limited access
to the formal court system. Towards this end, the Marian Conflict Resolution
Center (MCRC) opened in August 2011 in the central part of Ghana located in
Sunyani. During the summers of 2011 and 2012 approximately 150 individuals
were trained in mediation skills under the auspices of the MCRC. The training
took place at the Catholic University College of Ghana, Fiapre, located at
Sunyani. Participants in the mediation training came from a wide range of
backgrounds and included tribal chiefs, members of the clergy, legal aid officials,
attorneys, physicians and university students.
A questionnaire was distributed in July 2013 to mediators who had been
trained in mediation skills at the MCRC. They were asked to give them to parties
who had participated in mediation. Fifty-four individuals completed the
questionnaire.49
The questionnaire aimed to learn about how parties actually experienced
the mediation process. Our particular concern was with the parties’ perceptions of
fairness. The survey, which appears in Appendix II, focuses on questions related
to procedural justice.50

                                                                                                                       
48
See Nancy Welsh, Perceptions of Fairness in Negotiation, 87 MARQUETTE L. REV. 753, 763 n.
41 (citing cross-cultural studies); LIND & TYLER, supra note 43, at 129-145 (citing several studies
with Chinese, German and American subjects to show that procedural fairness maintains its
importance across different cultures.).
49
There were 31 responses from Sunyani and 23 from Accra, the capitol city of Ghana.
50
Mediation Questionnaire (July 2013), infra Appendix II. The authors are very grateful to
Professor Bobbi McAdoo of Hamline Law School for providing us with a questionnaire developed

 
 
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PROCEDURAL JUSTICE BEYOND BORDERS

B. Findings

Our preliminary findings suggest that parties experienced high degrees of

procedural justice in mediation on the issues of voice, respect and fairness, and
lesser degrees of procedural justice on the issue of satisfaction with the outcome
of their mediations.

The Decision to Use Mediation

Most parties decided to use mediation either because a friend

recommended it (Sunyani)51 or because the Legal Aid office invited them to use
mediation (Accra).52 A few parties participated in mediation at the suggestion of a
court (5%) or at the suggestion of a court and with the agreement of both sides
(4%). The majority of survey respondents were originally plaintiffs in lawsuits
(53%).

Attorney Representation

Few parties were represented by an attorney at the mediation (9%). In

most cases, the parties either did not have an attorney (47%) or did not have an
attorney present at the mediation (44%). The percentage of parties who appear
without attorneys in general civil litigation is generally consistent with findings in
the U.S.53

Procedural Justice/Fairness

The majority of parties reported that they were able to talk about all of the
issues that were most important to them (76%), that the mediator understood
“very well” what was important to them (91%), that the mediator treated them
fairly (93%), with respect (98%), and did not put too much pressure on them to

                                                                                                                                                                                                                                                                                                                                   
by the Court Committee of the ABA Section on Dispute Resolution and the Resolution Systems
Institute. Most of the questions in Part I of the survey come from that questionnaire.
51
From a comparative perspective, Professor Roselle Wissler found that litigants in the U. S. are
unlikely to use ADR without their attorney’s recommendation and encouragement. Roselle L.
Wissler, When Does Familiarity Breed Content? A Study of the Role of Different Forms of ADR
Education and Experience in Attorneys’ ADR Recommendations, 2 PEPP. DISP. RESOL. L. J. 199,
218 (2002).
52
The Legal Aid scheme in Ghana has a community mediation department to compliment the
actual legal services offered to the poor. See Senyo Adjabeng, Alternative Dispute Resolution in
Ghana, (Aug. 2007), http://www.mediate.com/articles/adjabengs3.cfm. Generally, at the intake of
cases, the first step is to advise applicants whose cases are amendable to mediation to take up that
option. However, it is not mandatory.
53
See American Bar Association et al., Task Force on Access to Civil Justice, Report to the
House of Delegates 3 (2006). See also Roselle L. Wissler, Representation in Mediation: What We
Know From Empirical Research, 37 FORD. URBAN L. J. 419, 420 (2010).

 
 
 9
PROCEDURAL JUSTICE BEYOND BORDERS

settle (96%). Overall, a majority of parties felt that the process was “very much
fair” (80%). There was a somewhat lesser degree of satisfaction with the
mediation outcomes with 58% reporting that they were “very satisfied,” 35%
reporting that they were “satisfied,” and 2% reporting to be “unsatisfied.” These
findings generally parallel empirical research in the U.S. which shows that
litigants and attorneys generally feel that ADR processes are fair and that they are
satisfied with both the process and the outcome.54

Differences Experienced with Customary ADR

There is little empirical evidence on how parties experience procedural

justice under customary ADR processes.55 Very few respondents in our survey
had been involved in a customary ADR process before a tribal chief (15%) or
queen mother (11%).56 When asked how they would compare that customary
ADR experience with mediation, their responses varied from a somewhat
inconsistent view--“It was not fair as compared to the private mediation process,
”57 ”almost the same,”58 to more positive views of mediation-- “There is more
room to express yourself freely in a mediation process than a customary
process.”59 “Mediation process is fair.”60 “The [Mediation]Center did not impose
any decision on us.”61 “The parties are allowed to decide how they want to
settle.”62
When asked, if they had a problem to resolve in the future, whether they
would prefer a customary ADR process before a chief or queen mother, or
                                                                                                                       
54
See e.g., Wissler, supra note 51, at 201.
55
See Richard C. Crook, Alternative Dispute Resolution and the Magistrate’s Courts in Ghana:
A case of practical hybridity, (Africa Power and Politics Programme, Working Paper No. 25, July
2012) (popular opinion survey conducted by the author showing that in settling disputes
Ghanaians valued an impartial judge who could ensure that the truth would be revealed and that all
parties be given the opportunity to tell their version of the story). See generally Richard C. Crook,
Kojo Asante & Victor Brobbey, Popular concepts of justice and fairness in Ghana: testing the
legitimacy of new or hybrid forms of justice, (Africa Power and Politics Programme, Working
Paper No. 14, Oct. 2010). For a general understanding of litigants’ experiences with justice see
Richard C. Crook, Access to Justice and Land Disputes in Ghana’s State Courts: The Litigants’
Perspective, 50 J. LEGAL PLURALISM & UNOFFICIAL L. 1 (2004) (examining litigants’ experiences
in three courts in Ghana with respect to land disputes).
56
One explanation could be that the individuals who responded to our survey were not drawn
from remote areas where customary ADR is most prevalent. An alternative explanation could be
that these parties had been involved in customary ADR processes before family heads/ elders who
are generally the first point of call to resolve disputes, especially if the parties involved come from
the same family.
57
Results from the Mediation Questionnaire, Response 1 (July 2013) (on file with author)
[hereinafter Survey Results].
58
Id. at Response 20.
59
Id. at Response 19.
60
Id. at Response 37.
61
Id. at Response 44.
62
Id. at Response 51.

 
 
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PROCEDURAL JUSTICE BEYOND BORDERS

mediation in court or a private center, one respondent replied that out of respect
he would first approach the queen mother.63 Another party responded that he
would prefer a private or court mediation.

Reasons for Favoring Modern Mediation

Some of the parties’ reasons for favoring mediation64 suggest that it

offered a significantly different experience than the directive and oracular nature
of customary mediation. Parties liked “the neutrality of the mediator,”65 “the
process,”66 the “documentation of our agreement,”67 “our power to determine the
outcome”68 and “not the mediator[s],”69 and the ability “to talk freely. Nobody
forced me to understand something against my will.”70
Other responses ranged from efficiency-- “It was short and simple,”71
“fair and fast”72 to the benefits of receiving advice73 or insight on a particular
issue.74 Most of the responses, however, focused on the common characteristics of
procedural justice: the ability to express one’s views, being treated respectfully
and evenhandedly, and perceptions of fairness.75

What Parties Did Not Like About Mediation

When asked to describe what they did not like about mediation, the
respondents offered objections both to process, --“not given the opportunity to
invite other people who know much about the case,”76 the “liberal nature of the
process”77 “too much liberty for the parties” as well as objections to structure--
“The other party was allowed plenty of time to speak, ”78 “my lawyer did not get
the chance to speak as much as I expected.”79 These responses reflect a lack of
understanding about the mediation process and how it differs from customary
ADR or court processes where lawyers conduct the case. In a customary ADR
                                                                                                                       
63
See Mediation Questionnaire, infra Appendix II, at Question 21.
64
Id. at Question 17.
65
Survey Results, supra note 57, at Response 10.
66
Id. at Response 35.
67
Id. at Response 47.
68
Id. at Response 35.
69
Id. at Response 45.
70
Id. at Response 9.
71
Id. at Response 4.
72
Id. at Response 12.
73
Id. at Response 36.
74
Id. at Response 40.
75
See Id. Responses to Question 15 are also excerpted infra Appendix I.
76
Survey Results, supra note 57, at Response 39.
77
Id. at Response 42.
78
Id. at Response 35.
79
Id. at Response 38.

 
 
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PROCEDURAL JUSTICE BEYOND BORDERS

process, parties are allowed in most cases to bring witnesses, but are not given too
much liberty or freedom to express themselves.
Other negative perceptions of mediation also reveal in part a
misunderstanding of the mediation process as one party had “wanted the mediator
to pronounce judgment, ”80 and another was concerned that “the respondent was
not punished enough.”81 Finally, behavioral concerns affected the perception of
mediation. Parties had a negative perception of mediation based on a mediator’s
behavior “allowing my husband’s insolence,”82 and also based on a plaintiff’s
behavior due to an “inability to compromise.”83
Two comments regarding the caucus continue to reveal a lack of
understanding about mediation and also are consistent with empirical evidence
that the use of the caucus can affect parties’ understandings of procedural justice
in a positive or negative fashion.84 Again, in responding to the question—“What
did you not like about the mediation process?” parties responded: “The part that
the mediator asked us to leave. She and the respondent talked but nothing was
said to us. The mediator explained that she cannot say anything because the other
party does not want us to know”85 and “When the mediator did not disclose what
went on during caucus.”86

V. CONCLUSION

Given the significance of procedural justice in establishing legitimacy, and

based on these preliminary findings with a limited number of participants, it
appears that the modern mediation provisions in the Act are perceived as
legitimate. It also appears that the common characteristics of procedural justice in
Ghana are consistent with the findings on procedural justice in western countries.
The opportunity to express oneself (voice), being treated fairly by the decision-
maker and feeling assured that she listened to them, and experiencing respect in
the process are as highly valued aspects of mediation in Ghana as they are
reported to be in many western cultures.
Questions for future mediation research in Ghana will include a focus on
the cultural implications of procedural justice research. Given the general
collectivist culture of Ghana, how will traditional Ghanaian conflict resolution
practices be affected by statutory mediation’s emphasis on individual autonomy
                                                                                                                       
80
Id. at Response 20.
81
Id. at Response 24.
82
Id. at Response 43.
83
Id. at Response 40.
84
See Nancy Welsh, Stepping Back through the Looking Glass: Real Conversations with
Disputants About Institutionalized Mediation and Its Value, 19 Ohio St. J. on Disp. Resol. 573,
647-51, 551, 669-71 (2004).
85
Survey Results, supra note 57, at Response 50.
86
Id. at Response 51.

 
 
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PROCEDURAL JUSTICE BEYOND BORDERS

and party self-determination? What is the relevance of customary mediation

practice to modern conflicts and how should customary values be respected? For
future mediation research, we hope to expand the number of survey participants
and identify the types of cases that were mediated, e.g., land, family, negligence,
etc.

 
 
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PROCEDURAL JUSTICE BEYOND BORDERS

Appendix I

Question 15: “Please describe the things you liked about mediation.”

Responses:

“I was given the opportunity to express myself.” (1)

“I did not pay any money.” It was also fair.” (2)

“It is fair.” (6)

“The mediators were very friendly. They gave us the opportunity to talk about the
issue.” (7)

“The mediators treated us with respect.” (11)

“Everyone was given the opportunity to express himself.” (13)

“The mediation process was very impressive.” (14)

“The mediator treated us fairly and gave us equal time to present our case.” (15)

“I was not intimidated or frightened.” (16)

“Ability to express myself very well.” (20)

“The mediators gave much respect to me and allowed me to express myself

freely.” (22)

“I was impressed with the warm reception given me.” (24)

“The patience of the mediators to allow disputants express themselves.” (25)

“The fact that the mediators had time to listen.” (26)

“like everything about the mediation. I had the opportunity to talk about my
issue.” (27)

“that mediators treated parties with respect.” (28)

“I was pleased with the way the mediation was done.” (29)

“I like the way the mediators handled the issue. They gave us equal opportunity to
talk about the issue.” (30)

“I was impressed about the way the mediators received us.” (31)

“It gave everyone the chance to speak.” (34)

“The process was fair and transparent.” (38)

 
 
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PROCEDURAL JUSTICE BEYOND BORDERS

“The education we received concerning our late father’s property.” (39)

“The whole process, especially the ground rules.” (42)

“The counseling that was given to my husband and me.” (43)

“The explanation of the ground rules. My right to terminate the session if I didn’t
wish to continue.” (44)

“Fairness. Respect.” (46)

“The mediator created a relaxed environment which made me feel at home.” (49)

“The patience the mediator had for us and the explanations given to my
questions.” (50)

“The way the intestate laws was explained to us by the mediator.” (51)

“Each party was [given] enough chance to speak his/her mind.” (52)

“Very fairly treated and respected both opinions.” (53)

 
 
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PROCEDURAL JUSTICE BEYOND BORDERS

Appendix II

Mediation Questionnaire

Please place a circle around your answer:

Section A

Please answer all of the questions below.

1. What led you to use mediation?

a. The court suggested mediation and I agreed. (5%)
b. The court suggested mediation and both sides agreed. (4%)
c. The court required me to go to mediation. (0%)
d. I or my lawyer proposed using mediation and the other side
agreed. (7%)
e. The other side suggested mediation and I agreed. (22%)
f. Other 51%87

2. What was your role in the mediation?

a. Plaintiff (person filing lawsuit) (53%)
b. Defendant (person being sued) (36%)
c. Other ________ (11%)

Unanswered (11%)

3. Was your lawyer present with you at the mediation?

a. Yes (9%)
b. No (44%)
c. I did not have a lawyer. (47%)

The following questions ask about your experience during the mediation session.

4. Were you able to talk about the issues and concerns that were most
important to you?
a. I was able to talk about none of the issues that were important to
me. (2%)
b. I was able to talk about some of the issues that were important to
me. (5%)
c. I was able to talk about most of the issues and concerns that were
most important to me. (16%)

                                                                                                                       
87
Many parties responded that a friend had recommended mediation. 11% of the parties did not
respond to this question.

 
 
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PROCEDURAL JUSTICE BEYOND BORDERS

d. I was able to talk about all of the issues and concerns that were
most important to me. (76%)

5. Was the mediator active enough in helping you to work out the issues in
the dispute?
a. No (0%)
b. Yes (93%)

Unanswered (7%)

6. How well did the mediator understand what was important to you?
a. Not at all (0%)
b. Somewhat (7%)
c. Very well (91%)

7. Did the mediator treat you with respect?

a. Not at all (0%)
b. Somewhat (2%)
c. Very much (98%)

8. Did the mediator treat you fairly?

a. Not at all (0%)
b. Somewhat (5%)
c. Very much (93%)

9. Did the mediator put too much pressure on you to settle?

a. Yes, the mediator pushed too hard. (4%)
b. No, the mediator did not push too hard. (96%)

10. What was the outcome of the mediation?

a. We reached settlement on all the issues in the case. (64%)
b. We reached settlement on some of the issues in the case. (25%)
c. We didn’t reach settlement on any issues. (7%)

Unanswered (4%)

11. With respect to the mediation session, please indicate whether

a. The time you had to mediate was too short. (13%)
b. Mediation occurred too soon in the case. (35%)
c. Mediation occurred too late in the case. (33%)

Unanswered (20%)

 
 
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PROCEDURAL JUSTICE BEYOND BORDERS

If you reached settlement, please answer the following questions:

12. Did the settlement

a. Favor you (44%)
b. Favor the other party (13%)
c. Favor neither you nor the other party (18%)

Unanswered (25%)

13. How satisfied were you with the outcome of the mediation?
a. Very unsatisfied (0%)
b. Unsatisfied (2%)
c. Satisfied (35%)
d. Very Satisfied (58%)

Unanswered (5%)

14. Overall, was the mediation process fair?

a. Not at all (0%)
b. Somewhat (13%)
c. Very much (80%)

Unanswered (7%)

15. Please describe the things you liked about the mediation?

16. Please describe the things you did not like about the mediation?

17. Have you been a party to a customary dispute resolution process before a
chief (i.e. in a chief’s palace)?
a. Yes (15%)
b. No (85%)

18. Have you been a party to a customary dispute resolution process before a
queen (i.e. in a queen mother’s palace)?
a. Yes (11%)
b. No (89%)

19. If you have been a party to a dispute in a customary dispute resolution

process before the court of the chief or the queen mother, how was the
dispute resolved?

a. The chief/queen mother gave a ruling. (11%)

 
 
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PROCEDURAL JUSTICE BEYOND BORDERS

b. The chief/queen mother helped us to reach an amicable

settlement/resolution. (5%)

c. I spoke with the other person and we were able to resolve our
problem before we appeared before the chief/queen mother. (0%)

Unanswered (84%)

20. If you have been a party to a dispute in a customary dispute resolution

process before a chief or queen mother, how does that experience compare
to your experience mediating in court or at a private mediation center?

21. If you have a problem to resolve in the future, would you prefer a
customary dispute resolution process before a chief or queen mother or
mediation in court or at a private mediation center?

© 2014 Jacqueline Nolan-Haley and James Kwasi   Annor-Ohene