By Jacqueline Nolan-Haley and James Kwasi Annor-Ohene
Abstract
Ghana enacted comprehensive alternative dispute resolution legislation in 2010 with the specific goals of providing access to justice and promoting domestic and foreign direct investment (The Act). A significant aspect of the Act was the inclusion of customary arbitration and mediation. The focus of this Article is on mediation as this is the first time that mediation has been included in a statute in Ghana. The Act’s definition of mediation reflects an understanding of the mediation process based upon the western values of individual autonomy and party self-determination. These principles represent a significant departure from the more communal values of customary mediation that has traditionally been practiced in Ghana. Whether the Act has been successful in achieving its “access to justice” goal is too soon to determine. However, one yardstick for measuring success is the degree to which parties experience procedural justice or fairness when they participate in the mediation process. Studies show that procedural justice can foster perceptions of legitimacy and where parties report positive experiences of procedural justice, they are generally satisfied with the process and tend to comply with outcomes.
In this Article, we report on a preliminary procedural justice study that we conducted in Ghana during the summer of 2013. Our findings, based on a limited number of participants, suggest that the mediation provisions in the Act are perceived as legitimate and that the common characteristics of procedural justice in Ghana are consistent with the findings on procedural justice in western countries. The opportunities to express oneself, to be treated respectfully, and to experience fairness in the process, are as highly valued aspects of mediation in the communitarian, collectivist culture of Ghana as they are reported to be in individualistic western cultures.
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