ABSTRACT
Mediation, a mechanism for the resolution of dispute, has been an ancient practice for several civilizations. Mediation was a form of resolving disputes in Africa, Ghana in particular before the coming of the Europeans. In recent times, the origin of ADR mechanism has been a debate among the conflict resolution fraternity and academicians. Owing to the fact that mediation has been used in diverse civilizations, the conduct and process varies and usually tends to suit the cultural context of the people. Mediation, as part of the ADR spectrum, has been structured in a wholly Western perspective with no room for cultural variations. Given the above-mentioned trends the study aims at finding the relations between African and Western mediation models, what is common between the two models, disparities between them and how the similarities and disparities qualitatively affect the outcome of the effectiveness of mediation in Africa and the Western world. The research utilized the qualitative research method with data from both primary and secondary sources. The study revealed that both Africans and Westerners do have their own approach to mediation, it also revealed that the differences and commonalities qualitatively affect the outcome of the effectiveness of mediation in Africa and the Western world. The study shows that both models of mediation has the same aim thus to resolve conflict amicably. The study recommends that a blend of both mediation models has a high tendency of resolving disputes peacefully especially when parties have different cultural orientations.
CHAPTER ONE INTRODUCTION
Background to the Study
Conflict is one of the main causes of instability in the world. Differences in orientation and values, competition for value and often scarce resources, and struggle for power constitute the fault line along which violence occurs. Violence is often triggered by the attendant perceptions of injustice, unfairness, inequality, misunderstanding and misinterpretation of daily socio-cultural, economic and political exigencies. Defining the concept of conflict is difficult, yet we see and experience it in our daily lives. Given the different sources of conflict, conflict is often defined to suit the situation and the context in which they emerge. However, a more widely accepted definition of conflict is the emergence of goal incompatibility between or among two or more groups. Fisher (2012) defines conflict as an incompatibility of goals or values between two or more parties in a relationship, combined with attempts to control each other and antagonistic feeling towards each other.1 Joseph Nye defines conflict as the study of incompatible goals between and among groups leading to protest and contestations, which sometimes aggravate into war.2 Conflicts have been a common social phenomenon whenever and wherever two or more persons, groups, and organizations interact with each other.
Likewise, the need and desire for the design and evolution of peaceful mechanisms for conflict resolution have been a predominant goal of individuals, families, institutions and states, given the context. Plausibly, no time in the annals of the world has there been the need for more efficient models of peaceful resolution of conflicts. Contemporary high global population with its
accompanying competition for resources, climate change, increased social change and the attendant adulteration of socio-cultural values, and the unprecedented feats in transport and communication technologies, among others, have engendered massive conflicts in all spheres of life across the world. However, while peaceful resolution of conflicts remains a much sought-after mechanism for peace, no one mechanism for conflict resolution fits or suits all conflict situations. The need for, and exigencies for efficient mechanisms for peaceful resolution of conflicts differ from place to place. While the post-Cold War upsurge in conflicts are ubiquitous, communities and societies in Africa have been one of the main locations of the world’s violent and recurrent conflicts. Africa’s predisposition to conflicts have proverbially been attributed to the structural weaknesses of its societies, low level of economic development, lack of the necessary technology, and weak structures for conflict resolution. The mainstay of Africa’s conflict resolution mechanism is the imported orthodox system of adjudication which was introduced to Africa by its former colonialists.3 Africa’s traditional systems of conflict resolution models, though surpassed by the orthodox European, have survived and persisted to date.
Africa has had its fair share of conflicts ranging from international, regional, political, ethnic, organizational and inter-personal conflict. Most of these conflict degenerates into violent conflicts. Conflict has become very destructive, leading to the loss of thousands of lives, destruction of properties, environmental degradation and disruption of daily activities in general due to the insecurities created. Africa has always had traditional mechanisms for the resolution of disputes between parties. These methods were not perfect but efficient and the process suited the people.4
Whenever there was a conflict between people, chiefs, elders, clan heads and family heads acted as intermediary to hear both sides of the case at hand and reconcile the conflicting parties. Traditional conflict resolution aims at a peaceful settlement and healing of relationships to ensure harmonious existence of conflicting parties, as they live in a community and were dependent on each other. The orthodox system of resolving conflict, thus the court system of litigation was introduced during the colonial era. Though the African traditional methods have survived, in terms of hierarchy, the orthodox mechanism is considered as a top notch and more legitimate because of its legal basis.
Although the orthodox system of resolving conflict is considered more appropriate, it has its own shortcomings. The orthodox system of resolving conflict is costly in terms of both time and resources, creating a backlog of cases and Time consuming. The orthodox system of conflict resolution aims at serving justice, while relegating peaceful coexistence. 5
Africa is a dual society made up of the formal and informal sectors and the orthodox system seems to favour the formal sector. Due to the weaknesses of the orthodox system, there was a need to explore other means of resolving conflict, which led to the introduction of Alternative Dispute Resolution (ADR) to support the court system of litigation which was overly loaded with cases to be adjudicated. Alternative Dispute Resolution has gained a widespread acceptance since its introduction in the mid 1970’s during the post-Cold War period and has been increasingly prescribed for African societies as most suitable for the resolution of conflicts.6
Alternative Dispute Resolution (ADR) can be defined as a set of mechanisms for resolving conflict, which includes mediation, negotiation and arbitration. Uwazie defines ADR as encompassing a series of mediation mechanisms for the resolution of conflicts that are linked to but functions outside formal court litigation processes.7
Bercovitch, defines mediation as “a process of conflict management, related to but distinct from the parties’ own negotiations, where those in conflict seek the assistance of, or accept an offer of help from, an outsider (whether an individual, an organization, a group, or a state) to change their perceptions or behavior, and do so without resorting to physical force or invoking the authority of law.”8 African Traditional mediation can be defined as the type of mediation used by traditional African societies in the resolution of conflicts. On the other hand, Western mediation can be described as a type of mediation model employed by Europeans in resolving conflicts. According to Farris, “Western mediation serves the needs of self-existent, individual and autonomous societies that are equipped with the service of a complex commercial sector and court system.”9
Almost all courts in West Africa recommend mediation, arbitration and negotiations as a part of the settlement process. Lawyers, traditional leaders and mediators have been trained to assist in the resolution of dispute through ADR mechanisms. In Ghana ADR begun after the Court Act 1993 was passed. The ADR act was passed in Ghana in the year 2010, and spells out the process of mediation, arbitration, negotiation and customary arbitration as an alternative dispute resolution mechanism, with the aim of helping the court to reduce the backlog of cases and to reconcile parties in conflict.10 The history of Ghana with regards to dispute resolution has links to mediation, negotiations, reconciliation as well as other settlement processes. For this reason, mediation is not
new to Ghana, notwithstanding how it was referred to. The people of Ghana, the then Gold Coast, had effective systems in place for resolving conflict before the coming of the British and other Europeans. Chiefs, elders and clan heads acted as mediators who helped the parties in dispute reach a settlement regarding their case. Western mediation has deep roots in traditional mediation although they vary in some aspects.
