Document Type

Article

Publication Title

harvard Negotiation Law Review

Volume

21

Publication Date

2015

Abstract

Mediation and other ADR processes have been promoted vigorously in developing countries under the banner of access to justice. As a result, many African countries are experiencing a transformation of their civil justice systems with modern dispute resolution gaining a strong foothold throughout the African continent. Influenced by promises of increased flexibility and efficiency in resolving disputes, greater access to justice, and in some cases, promotion of foreign investment, legislators and policy-makers have become active both in promoting and in privatizing modern dispute resolution processes.

There is nothing new about the use of informal and non-adversarial dispute resolution processes in African states. Many of them have had a long tradition of using customary dispute resolution processes including negotiation, mediation and arbitration to resolve legal and social conflicts. As modern dispute resolution enters its third decade of practice in several emerging democratic African countries, there has been resistance to what are considered the “compromise values” of ADR. Given this push back, it is time to take stock and reflect on some of the critical questions raised by ADR’s promise of access to justice in Africa. What is the relationship between the important values and normative principles of customary African dispute resolution and modern dispute resolution? What is ADR’s added value to customary African dispute resolution? What are litigants’ perceptions of justice in ADR processes such as mediation?

This Article reflects on these inquiries through the lens of the evolving dispute resolution regime of mediation in Ghana, considered generally to be West Africa’s most stable democracy. While Ghana has zealously embraced the ADR access to justice project, there has been some resistance to settlement and to what is perceived as the compromise values of ADR. The state has responded to resistance by making mediation mandatory in some court programs, thereby diminishing the value of consent. This Article argues that the access to justice promised by ADR processes such as mediation must be rooted in authentic consent. This is the way forward that will enhance mediation’s potential for furthering the values of democratic participation in emerging African democracies.

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