Mediation and Access to Justice in Africa: Perspectives from Ghana

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

Are Voluntary Agreements Better? Evidence from Baseball Arbitration

This paper empirically examines the widespread belief that voluntarily negotiated agreements produce better long-run relationships than third-party imposed settlements, such as arbitrator decisions or court judgments. Two key outcomes are analyzed – subsequent player performance and the durability of club-player relationship. Major League Baseball provides a compelling setting for these analyses because individual performance is well measured, there is the possibility of relationship breakdown, and both voluntary and imposed settlements are routinely used. While the results clearly show that a third-party imposed settlement is not better than a voluntary one, the evidence in support of the widespread belief is mixed

The Competitive Process and Gray Market Goods

Although it has the appearance of benefiting the consumer, the phenomenon of gray market goods is, for the most part, a species of unfair competition. Where an exclusive distribution contract between foreign and domestic entities enhances interbrand competition and satisfies a rule of reason analysis, it should be considered a protectable property interest. There is little justification for permitting gray market imports to interfere with that interest by taking advantage of the good will associated with the distribution, marketing, warranties and servicing provided by the United States distributor. The antitrust goal of promoting long-run consumer interests is not advanced by conduct which misleads consumers as to warranties and servicing, by false advertising and by disrupting distribution systems geared towards increasing interbrand competition. This type of conduct exceeds the desirable bounds of competitive behavior. The competitive process suffers unless there is a commercial environment amenable to efficiency and progress. To the extent that gray market goods impede the incentive for vigorous interbrand competition,they imperil this process

Informed Consent in Mediation: A Guiding Principle for Truly Educated Decisionmaking

Informed consent has a central role to play in mediation. Without it, mediation\u27s promises of autonomy and self-determination are empty. This Article has given the theoretical and policy justifications for a reform of mediation practice that honors the principle of informed consent. I have argued for a contextualized approach that takes into account mediation\u27s location, the voluntariness of the parties\u27 consent, and their representational status. This kind of analysis will lead to a more informed practice of mediation decisionmaking than exists currently and provide a perspective that can more prudently guide a mediator\u27s conduct. The proposed approach promotes greater fairness in mediation, particularly for parties who do not have lawyers. And fairness is what matters at the end of the day