COMPARATIVE ANALYSIS OF ARBITRATION AND MEDIATION ASMECHANISMS OF ADR IN SOUTH AFRICA AND GHANA

1. Introduction 

Dispute resolution is an important part of any law system because it keeps social  order and justice in place. Legal proceedings are necessary for the rule of law, but  many countries now understand that regular people may not be able to afford or  initiate them, and that they can be hard to initiate. As a result, there has been a move towards Alternative Dispute resolution (ADR), which is an umbrella term for a  number of methods used to settle legal issues without going to court. 

Negotiation, arbitration and mediation are all types of Alternative Dispute Resolution  (ADR) that help make the process faster, more cooperative, and less expensive.  Alternative Dispute Resolution is not a new idea in Africa. It is a modern take on  legal dispute resolution methods used before colonisation. Restorative methods, such as elder mediation or chief arbitration, have been used by many African groups  for a long time to settle disagreements and bring people together. 

ADR has recently been added to legal frameworks, showing that steps are being  made to make local justice systems more in line with the international standards for  fairness and enforceability. The main focus of this study is on the legal and social  settings of mediation and arbitration. Comparative and procedural law is a big field,  and this is a small part of it called “dispute resolution mechanisms”. 

South Africa and Ghana are well-known African countries that have made ADR  official through laws, policies, and backing from the courts. This study will look at how these methods work as parts of ADR in these two countries. Both countries want to make it easier for people to get justice, but their legal systems are not the  same in how they control, institutionalise, and include ADR. 

The Commission for Conciliation, Mediation and Arbitration (CCMA)1 and the  Arbitration Foundation of South Africa (AFSA) are two groups in South Africa that set  the rules for ADR. The Alternative Dispute Resolution Act 798 of 20102, on the other  hand, makes mediation, arbitration and customary arbitration official. It does this by mixing old customs with new laws. To show what a hybrid model looks like, look at  Ghana. 

This study looks at the two alternative dispute resolution (ADR) systems and find  similarities and differences between them. It focuses on their legal requirements,  underlying processes, and organisational structures. This research looks at the  difference between the more community based model in Ghana and the more  structured model in South Africa in order to find places where African laws could be  changed or made more consistent. The goal is to find out the pros and cons of each  method. The research is approached through a comparative, doctrinal and legal  approach. At the start of the study, a summary of important international agreements  will be given. 

This research takes a closer look at how alternative dispute resolution (ADR) is  handled in South Africa and Ghana, with the aim of developing a more effective and  culturally sensitive approach to resolving disputes in Africa. By examining  international agreements, local laws, and court decisions, the study seeks to identify  best practices and areas for improvement. 

Imagine building a dispute resolution system that is uniquely African, blending the  best global practices with local traditions and values. That‟s the goal here! By looking  at South Africa and Ghana, we are getting a clearer picture of what works and what  does not, and we are coming up with practical ideas to make ADR more trustworthy,  accessible, and sustainable. It‟s all about creating a system that‟s fair, effective, and  truly serves African communities, while still meeting international standards. We are  trying to shape a future for dispute resolution in Africa that‟s authentic, reflecting the  continent‟s rich cultural heritage and its people‟s needs. 

2. Problem statement 

Alternative Dispute Resolution is a big deal and of high importance to the African  legal systems. Surprisingly, though, not much research has been done to compare  the ways in which other nations set up and employ ADR procedures like arbitration  and mediation. ,any studies have been conducted on the effectiveness of alternative  dispute resolution (ADR) in resolving disputes between nations or economic matters, but few have examined the difference between the ADR systems in those nations.  Let‟s examine Ghana and South Africa3. 

To keep current with new legislation and the country‟s customs, Ghana and South  Africa are constantly adjusting their Alternative Dispute Resolution (ADR) systems.  Peace and unity ideals in the community. However, their approach differs. In South  Africa formal organisations including the Commission for Conciliation, Mediation and  Arbitration (CCMA). On Ghana, however, governmental mediators and arbitrators  work alongside traditional arbitration. These are distintinction between the two  systems. Not many reaches have compared them side by side. This study hopes to  achieve just that. This study examines how ADR systems are regulated,  implemented, integrated in both nations. It also examines how these systems interact with global standards in both nations. 

It also examines how these systems interact with global standards. Additionally  intrigued in how the methods of operation of each nation expose its own culture and  civilisation to be instinct. This certainly piques interest. Given that both of these  nations are ADR stars in Africa, it is crucial to understand their distinctions. By  comparing them, we can identify the practices, issues, and solutions. This can even  assist ensure ADR regulations are uniform the word. Therefore the main research  question is: what is the difference between Ghana‟s and South Africa‟s ADR  systems? What can they learn from one another to improve ADR as means of  obtaining justice for Africans? 

3. Hypothesis 

Alternative Dispute Resolution (ADR) is totally transforming Africa‟s legal system by  giving people a flexible, open, and quick way to settle disagreements outside of the  usual court system. Alternative Dispute Resolution (ADR) combines formal legal  systems with traditional ways of resolving conflicts to achieve social healing,  reconciliation, and community cohesion. 

The Commission for Conciliation, Mediation, and Arbitration (CCMA) and other  Alternative Dispute Resolution (ADR) processes in South Africa have strong institutions and the power to enforce its decision. Ghana‟s hybrid system makes it  easier for people to use and makes it more culturally relevant by mixing traditional  mediation and arbitration. 

There are several benefits to Alternative Dispute Resolution in Africa. And some  include the following; 

∙ Cost-effectiveness: ADR makes it easier for people to get justice by cutting the cost of legal services. 

∙ Cultural significance: ADR encourages people in the community to work  together and help each other by including their customs and values. ∙ Efficiency: ADR eases the pressure on the courts that are already too busy by  speeding up the process of resolving disputes. For Alternative Dispute  Resolution (ADR) in Africa to attain its full potential, there need to be better  ways to enforce the law, like laws that support mediation frameworks and  arbitral institutions. Training for facilitators, arbitrators and mediators helps to  build capacity. One kind of formal system is a mix of formal and traditional  legal systems 

What role could government have in promoting alternative methods of dispute  resolution in Africa? 

4. Points of departure and assumptions 

Using constitutional, international, and customary law as our guiding principles, we  approach this study from a doctrinal and comparative legal perspective. The study  looks at how two important types of Alternative Dispute Resolution (ADR), mediation  and arbitration, were established and used in Ghana and South Africa. 

It examines how formal legal systems, which are influenced by both local and  international laws, combining with Alternative Dispute Resolution techniques that  continue to have an impact on community-based justice in both situations. 

The theoretical underpinnings of the research include a blend of African Customary  Law, international law, and constitutional law. The right to use alternative dispute  resolution (ADR) to seek justice is protected under Section 34 of the Republic of South Africa‟s 1996 constitution. This section encourages impartial public hearings  and other dispute resolution procedures. 

The 1992 Ghanaian constitution also state that everyone is entitled to a fair trial and  that the legal system incorporates customary law. On a global scale, South Africa and Ghana both ratified the 1958 New York Convention on the Recognition and  Enforcement of Foreign Arbitral Awards and base their arbitration rules on the  UNCITRAL Model Law on international Commercial Arbitration. 

From a customary law perspective, the study demonstrates the continued importance of community healing based conventional mediation and arbitration  techniques. The concept of Ubuntu and the operation of Ghanaian courts serve  examples of this in African law. The goal of the study is to strike a balance between  African legal systems‟ cultural authenticity and contemporary legal formalisation. 

Both Ghana and South Africa believe that alternative dispute resolution (ADR) is a  wise alternative to going to court. ADR is easier to use and more culturally relevant  when it blends legal concepts with customary practices. 

International norms like those found in UNCITRAL Model Law have an impact on  both nations‟ arbitration rules. The primary objective of the constitution is to facilitate  the pursuit of justice, peaceful coexistence, and prompt resolution of disputes. This is  where effective ADR techniques are useful. 

This study examines arbitration and mediation as formal conflict resolution processes in Ghana and South Africa. It excludes the following; 

∙ The effectiveness of Alternative Dispute Resolution (ADR) in criminal or family  contexts, with a focus on civil, labour, and commercial scenarios. ∙ Alternative Dispute Resolution (ADR) methods, such as negotiation,  conciliation and restorative justice. 

∙ A quantitative or empirical investigation of ADR outcomes, the study is  doctrinal and comparative, with scholarly opinions, statutes, and case law  superseding empirical data. 

I chose this approach because alternative dispute resolution (ADR) in Africa operates at the nexus of numerous legal systems, such as constitutional rights, international duties, and customary standards. By examining these disparate  components side by side and through the prism of doctrine, we can gain a better  understanding of how they interact and influence one another in various contexts. 

When you compare Ghana and South Africa, you can see that both nations want  ADR to be effective, equitable, and simple to use. However, each nation uses a  different method to ensure that the laws still apply to the way disputes have been  resolved in the past. 

5. Conceptualisation of central research themes 

The term alternative dispute resolution refers to any methods of resolving conflicts  outside of court. According to Boulle, alternative dispute resolution (ADR) refers to a  few procedures that enable parties to settle a disagreement without going to court,  such as negotiation, mediation, arbitration or conciliation. 

ADR aims to make justice easier to obtain, more affordable, and more adaptable,  particularly when going to court would be too time consuming or expensive. Section  34 of the republic of South African‟s 1996 constitution promotes alternative disputes  resolution (ADR) by guaranteeing everyone‟s right to a fair public hearing or any  other appropriate approach. 

The Ghanaian alternative dispute resolution (ADR) Act 798 of 2010 also makes it  clear that ADR can help people get justice more quickly and relive some of the  burden on traditional courts. Therefore, the alternative dispute resolution is a  completely new method of administrating justice that is founded on comparison,  justice, and peace. 

Mediation is defined by Alexander as voluntary, confidential, and facilitated  negotiation process in which an impartial third party assist the disputing parties in  achieving a mutually agreeable settlement. Mediation is among the most favoured  methods for solving disputes outside of the courtroom. The mediator does not render  a decision, thus is not an adjudicative process. 

Arbitration is a private legal process whereby parties to a dispute submit their  differences to a neutral third party (the arbitrator) whose decision is known as an  award, is final and binding on the parties. Butler and Finsen argue that arbitrations as effective a legal option as going to court. This not only gives people more control  over their cases but also ensures that the outcome is final and binding. 

The arbitration Act 42 of 1965 is the law governing the arbitration of cross-border  litigation. Part 1 of the Ghana alternative dispute resolution Act 798 of 2010 deals  with foreign and domestic arbitration. The country also has the UNCITRAL Mode Law on international commercial arbitration of 2006. 

The main difference between arbitration and mediation is that in arbitration, the  arbitrator decides that everyone must follow. Everyone must agree to the mediation  terms. But both sides want things to improve, be far and give each party more  freedom. 

The concept of ADR, mediation and arbitration are interconnected components of the justice system. The core principle of ADR is that it relies on relationships and  mutual agreements. On the other hand, mediation is based on judgments and  regulations. These elements illustrate Africa‟s efforts to find a balance between strict  legal certainty and justice system rooted in forgiveness. 

5.2. Legal frameworks 

∙ South Africa: Arbitration Act 42 of 1965, International Arbitration Act 15 of  2017, Rules for Court-Annexed Mediation (2014). 

∙ Ghana: Alternative Dispute Resolution Act 798 of 2010, which regulates and  consists of both mediation and arbitration, including customary arbitration. 

5.3. Instructional structures 

∙ South Africa: The CCMA is the institution in control for labour Disputes. The  Arbitration Foundation of South Africa (AFSA) is responsible for commercial  arbitration. 

∙ Ghana: The Ghana ADR Centre regulates mediation and the courts integrate  ADR mechanisms. 

5.4. Cultural and customary dynamics

Ghana has a unique integration on customary arbitration, and this gives a reflection  to its local traditions. South Africa, even while it is influenced by Ubuntu, it still relies  more on statutory and legal frameworks. 

5.5. Effectiveness and access to justice 

This research will evaluate if ADR in both countries improves access to justice in  practice, considering the costa, timeliness, enforceability, and also public confidence. 

6. Proposed chapter outlay 

7. Project time scale

8. Description of proposed research method. 

This research will adopt a qualitative comparative legal method, which will focus on  the doctrinal analysis of legislation, case law, and institutional reports. The  comparative method will put the South African and Ghanaian systems side by side in  order to identify convergences and divergences. Secondary sources like journal  articles, law reform commission reports, and scholarly books will be consulted with. 

Then, the comparative method will be used to put South Africa and Ghana‟s ADR  systems next to each other and look at how their legal bases, institutional structures,  and interactions with traditional conflict resolution systems are different at the same  time. By comparing the two, we can find the best way to do things and learn how to  make the two countries more similar. 

Because ADR has legal, social, and cultural aspects, the study will use a qualitative  approach to understand and put mediation and arbitration in their proper context. The study won‟t use factual or static data, instead it will use interpretive analysis of  the constitutions, laws, rules, case laws and foreign agreements (like the UNCIRAL  Model Law) are primary sources. Secondary resources include academic textbooks,  scholarly magazines articles and reports from organisations like CCMA and Ghana  ADR Centre. 

9. Conclusion

South Africa and Ghana have so far made a very huge progress in the creation of  ADR systems, but the methods they use shows their distinct cultural, legal and  historical backgrounds. In South Africa, the ADR system is well developed with  organisation like the Commission for Conciliation, Mediation and Arbitration (CCMA)  and strong laws. 

This setup offers reliability and professionalism, but many see ADR mainly as a way  to handle business or labour disputes. Conversely, Ghana uses a mixed approach  that blends traditional arbitration and mediation with official processes. This makes  ADR easier to access and more relevant to local culture, especially within  communities. However, Ghana struggles with enforcing decisions and maintaining  uniformity between traditional and formal institutions. 

Both Ghana and South Africa still need to improve their access to justice and also  lessen the high volume and loads in courts, but they have different paths in achieving these. The strength South Africa has comes from the advanced institutions  of it, while Ghana‟s advantage is on the cultural inclusiveness. 

There is a room for learning from each other; South Africa could strengthen its  community based mediation systems, while Ghana could work on making its ADR  processes more enforceable and consistent. 

This research proposal draft has outlined and given an overview of a comparative  study of mediation and arbitration in both South Africa and Ghana. It has identified  the importance of Alternative Dispute Resolution as a mechanism for access to  justice, while also giving recognition to the persistent challenges faced by both  jurisdictions. The comparative analysis has also shown how the institutional  mechanisms in South Africa and the integration of customary practices in Ghana  provide complementary lessons. Finally, the study intends to make contribution to the scholarly and policy debates on the strengthening of ADR in Africa.

10. Bibliography  

Primary Sources  

Legislation 

∙ Arbitration Act 42 of 1965 (South Africa). 

∙ International Arbitration Act 15 of 2017 (South Africa). 

∙ Alternative Dispute Resolution Act 798 of 2010 (Ghana). 

∙ Chieftaincy Act 759 of 2008 (Ghana). 

∙ Constitution of the Republic of South Africa, 1996. 

∙ Constitution of the Republic of Ghana, 1992. 

∙ Court-Annexed Mediation Rules, GN 183 of 2014 (GG 37448, 18 March 2014)  (South Africa). 

International Instruments 

∙ UNCITRAL Model Law on International Commercial Arbitration (2006). ∙ Convention on the Recognition and Enforcement of Foreign Arbitral Awards  (New York, 1958). 

Secondary Sources 

Books and Journal Articles (Full References) 

∙ J Nolan-Haley and J K Annor-Ohene, „Procedural Justice Beyond Borders:  Mediation in Ghana‟ (2014) 19(1) Harvard Negotiation Law Review 71  https://journals.law.harvard.edu/hnlr/wp 

content/uploads/sites/91/2014/03/Nolan-Haley-and-Annor-Ohene-Procedural 

Justice-Beyond-Borders.pdf 

∙ N Ntuli, „Africa: Alternative Dispute Resolution in a Comparative Perspective‟  (2018) Conflict Studies Quarterly 24, 67 https://repository.up.ac.za/bitstreams/bcd84a77-09bc-4fdb-a771- eaf960465036/download

∙ P A Apuko-Awuni, „Mediation as an Option under Alternative Dispute Resolution: The Case of Ghana‟ (2022) 2(1) UCC Law Journal 157 

https://doi.org/10.47963/ucclj.v2i1.903 

∙ K Tabiri and G Owusu, „Enhancing Ghana‟s ADR Framework: Aligning  Arbitration with International Best Practices‟ (2025) SSRN 

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5238792 

∙ Laurence Boulle, Mediation: Principles, Process, Practice (3rd edn,  LexisNexis 2011). 

∙ David Butler and Eyvind Finsen, Arbitration in South Africa: Law and Practice  (2nd edn, Juta 2021). 

∙ Nadja Alexander, Mediation Process and Practice (LexisNexis 2019). ∙ Cornelius Ewuoso, „Ubuntu and African Dispute Resolution‟ (2017) 17 South  African Journal of Philosophy 443. 

Institutional and Online Sources 

∙ International Bar Association (IBA Arbitration Committee), Arbitration Guide – Ghana (2024) https://www.ibanet.org/document?id=Ghana-country-guide 

arbitration . 

∙ LEX Africa, „Dispute Resolution Practices Progressing Across the Continent‟  (2022) https://lexafrica.com/2022/08/dispute-resolution-practices-progressing 

across-the-continent/ . 

∙ Mondaq, „International Arbitration Comparative Guide: Ghana‟ (Mondaq,  2025) https://www.mondaq.com/litigation-mediation 

arbitration/1661844/international-arbitration-comparative-guide . ∙ Wolters Kluwer, „Enhancing Ghana‟s ADR Framework: Aligning Arbitration  with International Best Practices‟ (Kluwer Arbitration Blog, 2025)  https://legalblogs.wolterskluwer.com/arbitration-blog/enhancing-ghanas-adr 

framework-aligning-arbitration-with-international-best-practices/ . ∙ Wikipedia, „Commission for Conciliation, Mediation and Arbitration (South  Africa)‟ (Wikipedia, 2025) https://en.wikipedia.org/wiki/Commission_for_Conciliation%2C_Mediation_an d_Arbitration .

1International Arbitration Act 15 of 2017 (south africa); Arbitration Act 42 of 1965 (south Africa)  commission for conciliation, mediation and arbitration (CCMA), annual report 2022/23 (pretoria 2023) 

2 Alternative Dispute Resolution Act 798 of 2010 (Ghana);

3 N Ntuli, „alternative dispute resolution in Africa;a comparative perspective‟ (2018) conflict studies  quarterly 24,67.