Successful Family Mediation in Practice: Learning the Lessons from Ghana

By Matthew Fiddy

‘This is too small.’ In an office in west Accra a mediator tells a father that his offer of child maintenance is not satisfactory. The discussion continues for another twenty minutes before the father eventually produces a figure that is accepted by the mother.

The parties were participating in mediation at the Commission on Human Rights and Administrative Justice (CHRAJ) in Ghana, an independent organisation set up principally to promote human rights and guard against corruption. Over time, however, CHRAJ has become heavily involved in dispute resolution. The vast majority of these disputes are family matters, specifically child maintenance and custody issues.

CHRAJ resolves family disputes through mediation, a model that is still developing in England and Wales. As family mediation becomes more prominent as a result of recent reforms, the experience of CHRAJ could provide valuable insight into how the new system of family justice might work.

Family Mediation in England and Wales

Mediation remains a fairly alien thing to most parents in England and Wales. Research identified by Gingerbread, a charity set up to support single parents, indicated that while 50,000 couples are referred to mediation each year, only 13,500 couples actually participate. In addition, Gingerbread found that in recent mediation pilots in family courts only 17% of private law disputes were referred to mediation. These figures demonstrate that mediation is currently on the fringes of family dispute resolution.

This is likely to change significantly in the near future, however. The Family Justice Review (FJR), commissioned by the Government, reported in November 2011. The review strongly promoted the idea of mediation becoming the norm in family cases and outlined a new process whereby parents would have to follow various steps encouraging mediation before going to court would be possible.

In its response to the FJR in February 2012, the Government gave its full support to these proposals. Reaction from other groups to the review has also been largely positive across the political spectrum, even if concerns have been raised about implementation. Mediation, therefore, is likely to become a key aspect of the family justice system in England and Wales in the next few years.

The CHRAJ Model

While family mediation is only just coming to the awareness of policy makers in England and Wales, it is very much entrenched in dispute resolution in Ghana. 4,665 family cases were reported to CHRAJ for possible mediation in 2008, significantly higher than the number of family cases registered in court.

The process of dispute resolution is swift. Cases are typically resolved through mediation within two or three weeks of registration. Once a case has been reported by one of the parties to a dispute, an invitation is sent to the other party for mediation with a date.

When the parties arrive for mediation they are informed of the principles behind CHRAJ and the mediation process. These are that participation is voluntary, confidential and fair to both parties. One key difference to family mediation in England and Wales, however, is that the mediators are far more willing to give their opinions about proposed settlements to the parties directly (as the comment to the father in the above example demonstrates). If the discussions are successful, terms of settlement will be drawn up and then signed or (more often) thumb printed by the parties.

Statistics on Success

In 2008 12,919 human rights cases were reported to CHRAJ and the vast majority of these cases were family matters. 74% of the cases in this category, for example, were concerned with children, women’s rights, and property disputes between families. 9,693 cases were successfully disposed of by CHRAJ in 2008.  

The national picture is reflected on a local level. In Greater Accra for instance 538 cases were reported to CHRAJ in 2008. 358 of these cases were settled through mediation. More recent local figures also back up this trend. For example, in the west municipal office of the Greater Accra region, 36 cases were reported to CHRAJ in February and March 2011. All of these cases had been settled by the following month.

Lessons for England and Wales

There are many possible explanations for the success of CHRAJ. One factor already mentioned is the cost of litigation in Ghana. The monetary disincentive of pursuing a case to court undoubtedly helps to focus the minds of participants in mediation. In a country where disposable income is scarce any way of saving money in dispute resolution is welcome.

More optimistically for England and Wales, however, is the idea that mediation genuinely works for families. CHRAJ mediators report that talking to each other to resolve mutual problems has clear therapeutic benefits. The experience of CHRAJ in Ghana provides supporters of reform with evidence that mediation can bring about benefits for families that do not exist in the current system.

Despite this, there may be barriers to achieving the same success. One notable concern is the absence of representation or legal advice to participants at CHRAJ. Parties almost never receive legal advice before taking part in mediation, nor are they represented during the process. This means that there is the potential for power imbalances and negative outcomes for weaker participants. In England and Wales the recent legal aid reforms mean that many participants may also be unable to access legal advice in family cases. The disadvantages in terms of fairness experienced at CHRAJ may therefore surface in England and Wales.

Secondly, the cultural differences between Ghana and England and Wales may prevent family mediation from taking off as successfully. Ghanaians are well used to resolving disputes by talking to each other in public. This custom may derive from the tribal system that still exists across much of Africa. The idea of sitting down with family members and interested parties to resolve disagreements is natural and obvious in this part of the world.

In Europe the nuclear nature of most families means that there might not be this same willingness to collectively resolve private disputes. In general, people maybe less likely to openly discuss problems and more inclined to rely on the official and detached process of litigation.

Conclusion

The recent conversion of policy makers in England and Wales to the merits of family mediation means that there are important lessons to be learned from countries where this is the norm. The Ghanaian experience is certainly proof that family mediation can work, although there may be obstacles to achieving the same success in this jurisdiction.