Procedural Justice Beyond Borders: Mediation in Ghana

By Jacqueline Nolan-Haley and James Kwasi Annor-Ohene


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.


Symposium 2014 Schedule

Political Dialogue and Civility in an Age of Polarization
Saturday, March 1
9:00-9:15am Welcome message from Dean Minow
9:15-10:15am Panel: Political Discourse, How It Has Changed, and Why It Is the Way It Is
Panelists: Jim Flug, Peter Ambler, and Tom Bonier
Moderator: Nancy Welsh
10:15-10:45am Response Panel
Panelists: Bob Bordone, Nancy Welsh, and David Matz
10:45-11:00am Morning Break
11:00-12:00pm Panel: Overcoming Challenges to Civil Dialogue
Panelists: Francis Kissling, John Allen, and Jonathan Zittrain
Moderator: Laura Chasin
12:00-12:30pm Response Panel
Panelists: Bob Bordone and Amy Cohen
12:30-1:30pm Lunch
1:30-3:00pm Panel: What Worked: Practical Strategies for Loosening the Gridlock
Panelists: Laura Chasin, Carolyn J. Lukensmeyer, and Michael Ostrolenk
Moderator: Heather Kulp
3:00-3:15pm Afternoon Break
3:15- 4:00 Keynote Speaker: Krista Tippett
4:00-4:10pm Closing Remarks and Thank You from HNLR Editors
4:10-5:30pm Closing Reception

Unmasking Masculinity in Negotiation Scholarship

By John Miller

Men and women often experience negotiation differently. In fact, many patriarchal societal inequalities play out during negotiations, particularly when men and women negotiate with each other. Researchers like Linda Babcock, Hannah Riley Bowles, and Sara Laschever, to name just a few, have written extensively about how gendered forces in negotiations act upon women in particular.1 Not only are women held to different standards of behavior in a bargaining scenario, but women are also subject to implicit biases attached to their initiation of negotiations in the first place.2 These gendered attitudes also pervade leadership assessments, dictating that women in command must exhibit some traditionally masculine traits while still maintaining social-expected femininity.3

Once we acknowledge that gender roles are socially constructed, and not biologically inherent,4 we begin to see how women and men are trained to play certain gender roles, deviations from which are met with discomfort and even scorn.5 Invariably, many scholars’ conclusions suggest numerous ways to mitigate the difference between men and women in negotiation outcomes, affording women greater success in negotiations and the benefits that follow.

This line of analysis, and its subsequent conclusions, actually reflects a problem with much gender-based research. In much of the literature on negotiation and gender, maleness is treated as a measuring stick to compare to women’s progress in various positive outcomes. The problems are framed in comparison to male performance, and the solutions are dictated in terms of what women can do,6 or when they mention men at all, in terms of what men should do differently to help women.7 The advice is certainly useful, but it carries the assumption that masculinity is a unitary constant. Gendered research into masculinity has exposed not one, but a multitude of masculinities, acting upon men in ways unaccounted for in gendered negotiation research.8 And many of these masculinities are dominated and subservient to the same organizational patriarchy that feminism seeks to topple.9  The problem I seek to identify is a general disregard of men as anything more than a monolithic control group, considering the vast sociological and psychological evidence to the contrary.

This article will begin by explaining the anti-essentialist notion of multiple masculinity theory as it is currently understood, demonstrating the complexity missing from arguments that assume all men to operate under and happily conform to one definition of masculinity. I will then identify various issues of masculinity in negotiation scholarship that are either unexplored or underexplored, and develop why these issues are so important in the on-going conversation about negotiation and gender. The aim is not to belie the underperformance of women in negotiations, but instead to demonstrate how the dialogue must change to account for a more comprehensive view of masculinity and the forces it exerts upon both men and women in negotiation.


John Miller is a second year JD student at Harvard Law School. 


1 See generally Linda Babcock et al., Nice Girls Don’t Ask, Harv. Bus. Rev., October 2003,; Hannah Riley Bowles et al., Social Incentives for Gender Differences in the Propensity to Initiate Negotiations: Sometimes It Does Hurt to Ask, 103 Org. Behav. and Hum. Decision Processes 84, 85 (2007)

2 Hannah Riley Bowles et al., Social Incentives for Gender Differences in the Propensity to Initiate Negotiations: Sometimes It Does Hurt to Ask, 103 Org. Behav. and Hum. Decision Processes 84, 85 (2007)

3 Id.

4 See Ann C. McGinley, Creating Masculine Identities: Bullying and Harassment “Because of Sex”, 79 U. Colo. L. Rev. 1151, 1161-62 (2008)

5 Bowles, supra note 2, at 86

6 See Bowles, supra Note 2; Linda Babcock et al., Nice Girls Don’t Ask, Harv. Bus.Rev., October 2003,

7 Andrew Cohn, Women and Negotiation: Why and How Men Should Come to the Bargaining Table, 1 Oxford Leadership J. 1, 2 (2010)

8 David S. Cohen, Keeping Men “Men” and Women Down: Sex Segregation, Anti-Essentialism, and Masculinity, 332 Harv. J. L. & Gender 509, 521 (2010)

9 Id. at 522

HNLR Symposium 2014- Save the Date

The Harvard Negotiation Law Review is pleased to announce its annual Symposium, “Political Dialogue and Civility in an Age of Polarization” to take place Saturday, March 1, 2014, at Harvard Law School in Cambridge, Massachusetts.

Signs of polarization and the damage it causes are painfully evident in political and civic life and impede a more thoughtful and productive national dialogue. Policy makers, lawyers, and scholars will discuss the ways in which negotiation, mediation, and other dispute resolution skills can improve the quality of our civic engagement and, ultimately, our political system.

Find more information about the symposium and instructions for registration on the Symposium 2014 page.

How Obama Can Be “Tuff” in Syria

By Robert C. Bordone and Alonzo Emery

We haven’t been able to shake the image: 20 year-old Michael Brandon Hill enters a packed elementary school in Decatur, Georgia armed with an AK-47 assault rifle.  He seems determined to make the start of the school year a day of grief, tragedy and death. Amazingly, the school bookkeeper, Antoinette Tuff intervenes by using listening and dialogue to negotiate the terms of peaceful resolution.  The incident all captured during a taped 911 phone call.

When President Obama phoned Tuff to applaud her fortitude on that August day, Tuff alluded to the President’s example, saying to him, “I learned from the best.”

The President could actually learn a great deal from Tuff, especially as he decides how to respond to the Syrian crisis. Although the local community context Tuff found herself in and the geopolitical one faced by the President differ in important ways, essential lessons from Tuff’s harrowing experience can inform how we face this conflict and the inevitable conflicts we encounter in the future.

Build affiliation. At first glance, Hill and Tuff shared little in common. Barriers of race, gender, age, and life station divided them, not to mention the gulf separating a heavily armed man from a defenseless school employee. Still Tuff found a way to connect to Hill’s humanity. Instead of shutting Hill out by building a wall around herself, she did the opposite, saying, “Don’t feel bad, baby.  My husband just left me after 33 years. I am sitting with you and talking with you about it.  I’ve got a son that’s multiple disabled.”

In the face of conflict – and especially in the face of a gunman poised to kill – we understandably forget the humanity of our counterpart and what we might share in common.  At the height of her terror, Tuff built affiliation with her captor, “My mother was a Hill”, that opened Michael Hill to exploring solutions other than gunfire and mass murder.  Although Hill was the proximate cause of the problem that day, Tuff engaged him as a joint problem solver.

Despite the deafening beat of war drums, President Obama might consider how best to listen carefully through the din and use what he learns to build the type of affiliation that can lead to a more peaceful solution. The President can look to ongoing talks with world leaders as opportunities to build affiliation with those who can use their leverage with the ruling Syrian regime.  By avoiding ultimatums and fiery rhetoric, the President can learn from Antoinette Tuff by framing his engagement with other leaders as an invitation to bringing a shared problem to an acceptable end.

Build them a step, build them a golden bridge. There is a common saying in China: “For people to descend from the stage, you must provide a step.”  The allusion is to the stage of conflict and the provision of an exit for its protagonists. Western experts in conflict resolution offer similar advice, using the evocative image of building a golden bridge for your negotiation counterpart to cross to the same side. Without providing the step, without the bridge, parties become entrenched and conflict escalates.

In Decatur, Antoinette Tuff told Hill with astonishing composure: “We are not going to hate you, baby…it is a good thing you are giving up.” Thus, Hill could step down from the heights of conflict and cross a bridge to something that seemed crucially different than failure.

The people of Syria do not enjoy the luxury of time. If there is to be an alternative to direct military conflict, the global community must act quickly to find a step from which Assad and his supporters can descend and a bridge toward something worth saying ‘yes’ to.  As Tuff’s example suggests, this is not an exercise in weakness or a bridge to impunity; rather it is a strategic move to accomplish a limited but critical goal: the end of civilian casualties. In the end, both Hill and Assad must answer for their crimes.

As the U.S. weighs its options in Syria and continues to build strategy to persuade world leaders, President Obama can “learn from the best” in Antoinette Tuff by extracting two valuable lessons from her heroism: Create a sense of affiliation with those influencing the outcome. Build a golden bridge that allows the other to end conflict swiftly. Lessons learned from Tuff might fare as well in Damascus as they did in Decatur.


Robert C. Bordone is the Thaddeus R. Beal Clinical Professor of Law and the Director of the Harvard Negotiation and Mediation Clinical Program at Harvard Law School. Alonzo Emery is a Lecturer on Law and Clinical Instructor at Harvard Law School.