Focus group participants and a number of interviewees in Bong, Lofa, Montserrado, Nimba Counties, and literature reviewed in the Desk Review identified family disputes, along with those over land, as the most common, numerous and important to citizens to be resolved. For the most part, interviewees and participants in focus groups conducted by researchers for this Scoping Study did not raise serious concerns or criticisms about who was resolving family disputes beyond other family members – customary leaders, women’s leaders or the courts. Their concern was much more on how they were resolved and that the process and outcomes were timely, fair and not costly.
Focus group participants did indicate that specific kinds of family disputes are more difficult to handle and resolve. Some of these include those involving children from different or multiple marriages or those born out of wedlock, contested marital age for girls, abandonment (wife, husband or children), spousal support, divorce under statutory or customary law, and issues related to inheritance. (It should be noted that customary leaders no longer resolve divorces covered by customary law. These are settled by the Superintendent’s Appellate Court that is part of the Ministry of Internal Affairs. Interviewees and participants in focus groups noted that diverse dispute resolution providers use different standards and criteria to guide their negotiations, voluntary mediated settlements or third party decisions. Some use statutory laws and standards, while others use customary law and common practices. If a pilot is selected to focus on the resolution of family issues, strategies will need to be developed to address family issues in both customary and statutory contexts.
Participants in focus groups also noted that taking a family case to court often involves a significant amount of time, long waits for a decision and costs that were often beyond what most Liberians can pay.
Current Institutions and Procedures Handling and Resolving Family Disputes
There are two major and several minor institutions and procedures in Liberia, other than those provided by families themselves, that handle and help resolve family disputes. The major ones are customary authorities and government courts. The minor ones are religious authorities and bodies, and civil society organizations. If the MOJ and its partners decide on a pilot focused on the resolution of family disputes, it will likely focus on the first two institutions, although efforts could also made to enhance civil society dispute resolution providers.
A potential Pilot focused on the Resolution of Family Disputes by Customary Authorities
Earlier in this Study, an analysis was presented of the alignment of customary procedures and authorities with the “Protect, Respect and Remedy” Framework developed by the United Nations. It was noted that customary procedures have significant legitimacy among many Liberians, and are generally readily accessible. Many customary procedures are also based on dialogue and efforts to reach mutually acceptable agreements or decisions that are congruent with Liberian values about justice. However, procedures and outcomes are not always predictable.
Some customary authorities use more meditative approaches, while others see themselves as adjudicators. Additionally, procedures commonly do not have any specific or widely understood timeframes or limits for their conclusion. Additionally, in customary procedures, disputing parties may not have reasonable and equal access to sources of information, advice or expertise necessary to engage in the dispute resolution process in “fair, informed and respectful terms”. This may especially be the case for weaker parties – in this instance, women, youth and the elderly.
There are also concerns about transparency and the standards and criteria used for facilitating agreements or making decisions, which was reiterated in interviews and focus group feedback for this study. Finally, it was noted that customary procedures and outcomes may not always be compatible with national statutory laws or international agreements signed by the Liberian government, and may not always respect disputants’ rights.
A pilot focused on enhancing the use of customary procedures to resolve family disputes will need to build on the strengths of customary institutions and procedures, and address some of the gaps or problems related to predictability, equitability, transparency and rights-compatibility.
Listed below are several options for pilot activities that can help enhance customary resolution of family disputes and that address some of the criteria identified in the “Protect, Respect and Remedy” Framework. Some of the options could be conducted either on a nation-wide basis or in specifically targeted areas, based either on geography or the location of one or more communities.
Enhancing Legitimacy – Enabling trust from the stakeholder groups for whose use they are intended, and being accountable for the fair conduct of [dispute] grievance processes
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Write down customary laws, dispute resolution guidelines, rationales and practices – The MOJ, Ministry of Internal Affairs and their partners should sponsor and convene community, district, county or regional conferences where customary authorities write down customary laws, dispute resolution guidelines rationales and practices used to address common disputes, and begin to create records of decisions. These writings could be used as the basis for discussions among customary authorities at regularly scheduled conferences on how customary law should be applied and modified to address specific and changing circumstances. The deliberation and writing process would help to develop a consensus on
common approaches for settling similar cases. Ultimately this approach could move the country toward developing a common understanding of customary law and more standardization regarding how laws are applied. Having these kinds of records could also help statutory courts make decision on cases that concern customary law.
Users of dispute resolution approaches and procedures will benefit from knowing the customary laws, dispute resolution guidelines, rationales and practices that will be used and applied by customary authorities when providing dispute resolution assistance. This will potentially create more legitimacy of the dispute resolution process and its outcomes.
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Create guidelines for fees, if any, that customary authorities may charge for providing dispute resolution services, and publicize them widely. Disputants should know exactly what it will cost to utilize and participate in customary dispute resolution processes. There are a variety of choices regarding fees charged for non-judicial dispute resolution services. Some fee options include:
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No fees
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A nominal filing or dispute processing fee
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A sliding scale fee charged per disputant based on his or her ability to pay
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A nominal pre-fixed fee per case for provision of dispute resolution services (a part of which may be paid by each party)
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An hourly fee
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A fee covered by the mechanism for which the service provider works
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A regular salary
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Fees for transportation, meals, to purchase supplies to recognize an agreement or decision, etc.
Similar decisions will have to be made for pilots with other kinds of service providers.
Enhancing Access – Being known to all stakeholder groups for whose use they are intended, and providing adequate assistance for those who may face particular barriers to access
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Publicize and assure choices for entry points to customary dispute resolution processes and options for selection of intermediaries - The MOJ, Ministry of Internal Affairs or other partners, as appropriate, should clarify and provide education for disputants on where and under what circumstances they can enter and utilize different customary dispute resolution procedures and service providers. Parties should have a choice over who will be their intermediary, the dispute resolution procedures that can and will be used and the customary or statutory laws that will be applied to reach voluntary settlements or to guide decision making.
Enhancing Predictability – Providing a clear and known procedure with an indicative timeframe for each stage, and clarity on the types of process and outcome available and means of monitoring implementation
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Make customary practices and potential outcomes more explicit –The MOJ, Ministry of Internal Affairs, the Judiciary or other partners should require customary authorities to be more explicit and describe to disputing parties the dispute resolution procedures they propose to use to help resolve family disputes. Authorities should note whether they propose a more meditative process, or mediation, to help parties negotiate voluntary and mutually acceptable agreements; a restorative justice approach that helps parties address relationship issues and restore them as they desire; non-binding arbitration where recommendations for how a dispute might be settled will be provided by the intermediary, an adjudicative process in which a binding decision will be rendered; or a combination of the above. Discussions with parties should be required so that all concerned understand and agree on the dispute resolution procedure that will be used and the kind of outcome that is desired or will result. Parties and customary authorities should also agree on a timeframe within which the process will be conducted.
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Enhance performance of customary and other dispute resolution procedures and practices through educational programs –The MOJ, Ministry of Internal Affairs, the Judiciary or other partners should sponsor conferences and training programs on best practices of customary dispute resolution, mediation and arbitration procedures to increase the skills of customary authorities to effectively utilize and implement a range of dispute resolution processes. Programs on other substantive topics could be presented if customary authorities are legally authorized to handle and resolve additional disputes beyond those related to families, such as minor criminal cases. Presentation of somewhat standardized training programs on dispute resolution procedures can help increase the predictability of processes used.
Enhancing Equitability – Seeking to ensure that aggrieved parties have reasonable access to sources of information, advice and expertise necessary to engage in a [dispute resolution] grievance process on fair, informed and respectful terms
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Conduct public educational seminars for customary authorities and targeted seminars for “weaker parties” to help promote fair, informed and respectful participation – The MOJ, Ministry of Interior and their partners could increase the presentation of educational seminars and training programs for both customary authorities and weaker parties that would present information necessary to engage in the dispute resolution process on “fair, informed and respectful terms”. Participants, other than customary authorities, should include women, youth and strangers.
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Provide legal services, information and/or advice –The MOJ and its partners should consider the development of legal services clinics or legal advisors that would provide information to both customary authorities and parties on relevant and statutory laws, and the rights of disputants. Providers of legal information on customary law and rights could be attached to an entity such as the National Council of Chiefs and Elders or a Paramount Chiefs’ Court. Statutory legal information providers could be attached to courts.
Enhancing Transparency – Keeping parties to a grievance [or dispute] informed about its progress, and providing sufficient information about the mechanisms performance to build confidence in its effectiveness and meet any public interest at stake
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Require customary authorities to inform disputants about expected timelines and mileposts for various stages and procedures in the dispute resolution process – This should include information about the time required to talk with all parties, timing of dispute resolution meetings, when an outcome might be expected and so forth.
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Write down agreements or decisions – As for all of other dispute resolution mechanisms and procedures, both for those handled by customary leaders to record the outcome of family disputes and for others described below, the MOJ, Judiciary or Ministry of Interior and their partners should require customary authorities to write down and document the outcomes of their dispute resolution processes; and describe the customary laws, common practices and standards used to guide mediation, making recommendations or binding decisions. This will help promote the transparency of outcomes. Copies of agreements should be provided to all parties, and one kept by the intermediary.
If customary authorities are not able to produce written records, a small stipend should be provided to them so that they can hire literate assistants to attend dispute resolution meetings and write down agreements that have been reached. (Full-time clerks will probably not be required.)
Enhancing Rights Compatibility – Ensuring that outcomes and remedies accord with internationally [and nationally] recognized human rights
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Promote legal education of customary authorities on statutory laws, rules and regulations – This strategy would focus on ongoing legal education of customary authorities through targeted training programs about national laws and international agreements subscribed to by the Liberian government, and developing commitments that they will be considered and applied in resolving cases using customary procedures. Emphasis should be put on the rights of women, youth, differently abled parties or minorities (“strangers” in communities. A significant amount of work has already been done in this area by the UN, its affiliates and international and national civil society organizations.
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Sponsor collaborative procedures to promote legal harmonization – Legal harmonization is best accomplished through dialogue, negotiation and consensus building on how national laws and international commitments can be integrated in the context of customary processes and outcomes. The MOJ, Judiciary, Ministry of Internal Affairs and other partners could initiate legal and regulatory negotiations with customary authorities to develop harmonization strategies.
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Conduct joint case conferencing – At the local level, the MOJ, Judiciary and Ministry of Internal Affairs should convene joint case conferencing meetings between customary authorities and magistrates to discuss how customary and statutory family law can be reconciled when handling specific kinds of cases such as children from different or multiple marriages, those born out of wedlock or inheritance cases where women’s rights are in question.
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Create a judicial review body –The MOJ and/or the Judiciary could establish a body to review decisions made by customary authorities to determine their congruence and compliance with national laws and international agreements. If conducted under the auspices of the judiciary, the body could be a special committee under the Circuit Courts.
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Conduct educational programs on the rights of women – The MOJ, Judiciary or civil society organizations should sponsor targeted training programs for customary leaders on the statutory rights of women, with specific focuses on land, inheritance and freedom from domestic abuse or violence.
Enhancing continuous learning – Drawing on relevant measures to identify lessons for improving the mechanism and preventing future [disputes] grievances and harm
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Develop a data base and look for trends – Data on dispute resolution procedures, timeframes in which disputes were handled, contents of written agreements and outcomes should be entered into a data base, so that patterns of procedures and outcomes – either voluntary agreements or decisions by intermediaries - can be tracked and analyzed. Having records of procedures and outcomes will also enable the pilot to track appeals and understand how much forum shopping is being conducted, and potentially why this is the case.
Having records of written agreements can be used to look for patterns in the resolution of specific kinds of disputes and interventions, assess the fairness of outcomes and determine if unfair or illegal outcomes are occurring.
Finally, reviewing compendiums of written agreements can identify legal or structural conflicts that may require revisions of existing or new legislation to address and to prevent them from occurring.
Enhancing engagement and dialogue – Consulting the stakeholder groups for whose use they are intended on their design and performance, and focus on dialogue as the means to address and resolve grievances [and disputes]
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Conduct annual meetings of users of the customary dispute resolution mechanism and procedures solicit input on their performance in resolving family (and/or other disputes) – Convene focus groups of users on an annual basis and at the conclusion of the pilot to solicit input on the performance of customary dispute resolution processes and service providers.
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Prepare customary authorities to use mediation to reach voluntary agreements – A number of customary authorities have been trained in, are offering and using mediation as a voluntary dispute resolution process. Additional customary leaders could be trained in this procedure and encouraged to provide it to disputants as one possible dispute resolution process.
A Potential Pilot focused on the Resolution of Family Disputes brought to Government Courts
Some individuals, couples, children and families with domestic disputes prefer not to take their differences to customary authorities or civil society organizations such as churches, NGOs or CBOs. These cases commonly end up in government courts. Additionally, some disputants want legally binding decisions and outcomes of their conflicts, and believe that a judicial decision is the only way to obtain this goal.
While this Study is not focused on the alignment of state judicial institutions and procedures with the “Protect, Respect and Remedy Framework”, numerous other studies cited earlier have identified both strengths and gaps in the formal justice system. Strengths include standardized statutory laws, rules and regulations; somewhat predictable and known procedures; dedicated staff and funding to operate the system; and some capacity to enforce decisions. Gaps and where the judicial system is, on occasion, out of alignment with the Framework include perceived or actual corruption which influences user’s perceptions of legitimacy, limited accessibility because of distance between courts and where disputes occur; high transaction costs (court and legal fees, and transportation, accommodation and food expenses for users); unpredictable and often long times required to obtain a judgment; factors such as lack of lack of information, advice or expertise that often exclude weaker and less well-endowed parties from fully participating in the process; a focus on a narrow range of issues covered under law that may or may not be at the root of the conflict; the use of adversarial procedures as opposed to dialogue to arrive at judgments and outcomes; and a lack of focus or reconciliation and restoration of damaged, and frequently ongoing, interpersonal, family and community relations which are valued by Liberians. Many efforts are currently underway to remedy the above problems.
Ideally an alternative mechanism and pilot could help remedy some of the problems identified above and address some of the gaps by institutionalizing a publicly available government-sponsored mediation and arbitration service.
Addressing “Protect, Respect and Remedy” Issues through a Government-sponsored Mediation and/or Arbitration Service
The MOJ, Judiciary or other partners could address some of the in gaps in the provision of dispute resolution services by the formal justice system by initiating a pilot that provides a publicly available mediation or arbitration mechanism, procedures and service providers that can help settle family disputes that are commonly brought to courts for resolution. (The same model could also be used to resolve a range of other types of disputes.) Described below are a range of options for the MOJ and its partners to consider that address some of the issues identified in the “Protect, Respect and Remedy” Framework.
Enhancing Legitimacy – Enabling trust from the stakeholder groups for whose use they are intended, and being accountable for the fair conduct of [dispute] grievance processes
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Establish a credible institutional home for the dispute resolution mechanism and services – The location of the dispute resolution service can significantly promote the legitimacy of the services that are provided. The institutional home should be respected by users, capable of effectively administering the new dispute resolution service, provide fair and efficient oversight of service providers and the process, and have the authority to sustain and secure political support and funding of the initiative after the pilot has been completed. Some potential options for institutional homes include:
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The Ministry of Justice
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The Judiciary and/or targeted courts
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Another government ministry
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An new independent agency
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Establish a respected and effective governance structure – The governance structure of the mechanism should include components that set fair and implementable policies, rules and regulations; administer the system; provide oversight of service providers; track and monitor cases and trends; identify potential structural changes that might need to be made in terms of laws, rules, regulations and procedures that will eliminate causes of disputes, and so forth. Governance could include one or more of the following entities, although the scope of the pilot may not require all of them:
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A voluntary board, or alternatively a steering committee, to provide broad oversight and governance of the pilot
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A pilot administrator/director
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A national Data Coordinator – To develop and manage a data base that tracks and monitors dispute resolution procedures and outcomes of cases
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Coordinators at each pilot site to oversee implementation
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Case Administrators and Quality Control Officers to help assign cases, monitor resolution progress and provide supervision of intermediaries
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Clarify the relationship of the dispute resolution mechanism to the judiciary and courts.
Regardless of the pilot’s home – based in the MOJ, the Judiciary or some other entity - its relationship with the courts and the formal legal system will need to be clarified. This is important for concerned institutions, dispute resolution providers, prospective users and members of the public. Some of the issues to be addressed include:
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Will cases be referred by the court to the entity and its service providers for resolution assistance?
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Will court-referred cases in which parties reach voluntary settlements be recognized by the court as stipulated agreements, and have the standing of a legal decision?
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What might courts do to recognize negotiated settlements of disputes that have not been filed in court, but about which parties have reached voluntary agreements?
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Build institutional, political and citizen support for legal or institutional changes needed to implement a collaborative dispute resolution mechanism and related procedures. If the pilot is independent of the judiciary or the courts, or if cases do not go through courts or are received prior to a court filing, there may not be much required in the area of legal or institutional change to handle these disputes. However, if the judiciary or courts are the institutional home for the pilot, they may have to develop rules and regulations for how cases will be received and resolved thorough collaborative dispute resolution procedures under their auspices.
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Promote the legitimacy of dispute resolution procedures and service providers – Legitimacy of dispute resolution procedures is generally strongly influenced by who provides the services, the qualifications and skills they possess and the acceptability of outcomes. It will be important for intermediaries to be highly respected and credible individuals who are selected and appointed in, fair and transparent manner. Candidates for the provision of dispute resolution services should be identified and selected for their integrity, honesty, dedication to providing public service and dispute resolution skills. Service providers should be selected from candidates nominated by respected institutions or individuals in communities, or self-nomination. Vetting and appointment of service providers could be done by:
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The agency that is the institutional home of the pilot
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An independent board composed of respected notables
Mediation and/or arbitration services could be provided by:
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Magistrates – These court officials are already providing mediation services in some Districts. (However, their doing so does not necessarily reduce the court load or lower the amount of time required to resolve cases. To do so would require appointing more magistrates.)
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Court personnel – The Judiciary or a Court could hire staff to be in-house mediators and/or arbitrators and assign them to work in coordination with Magistrates. These intermediaries would be readily available to help disputants voluntarily resolve their disputes.
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Trained professional (fee for service) or volunteer mediators or arbitrators who would be vetted by the sponsoring agency and regularly attend court to accept and resolve disputes.
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Trained professional or volunteer mediators or arbitrators on a roster of dispute resolution providers vetted by the District court, and to whom disputants could be referred.142
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Assure the competency of dispute resolution service providers – Individuals providing dispute resolution services should receive extensive training in conflict analysis and strategy design, communications skills, the mediation and/or arbitration process to be used and laws and regulations related to the kinds of cases they will be handling.
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Provide public recognition and demonstrate the importance and value of dispute resolvers. Legitimacy of intermediaries and the services they provide can be enhanced in the eyes of the public by the kind of recognition and appreciation they receive from the entity they work for or with. Publicity and public
142 Some dispute resolution mechanisms and services provided by courts or other government entities have paid mediators on staff. This model of service provision assures that third parties are always available to help resolve disputes, have extensive experience in resolving conflicts, enables direct supervision and oversight of intermediary performance, helps assure quality control, and professionalizes the assistance that is provided. The down-side of this model is cost.
Other dispute resolution services, provided by courts or other entities, utilize private practitioners who provide assistance for a fee. Many of these intermediaries mediate or arbitrate a significant number of cases, specialize in resolving specific kinds of disputes (such as HLP conflicts) and see themselves and are seen by potential clients as professional intermediaries.
Finally, many other mediation mechanisms – court or other government agency affiliated, private or communitybased – use volunteer mediators. These services usually establish standards for practice, require specific amounts and focuses for training, and some degree of oversight of intermediaries’ performance.
recognition of the dispute resolvers and their performance, such as group settlement rates, can enhance their status and credibility with the public.
Intermediaries, if they are salaried and on the payroll of an institution such as a court, are paid staff of a dispute resolution organization or are allowed to charge a fee will receive some material reward for the dispute resolution assistance they provide. If, however, third parties are volunteers, they will be contributing a significant amount of time and energy, providing an important community service but will not be paid.
Past experience in other countries indicates that volunteer intermediaries usually need and appreciate a small stipend to cover their travel costs, light refreshments for themselves and participants in their procedures, and occasionally lunches if they are providing dispute resolution assistance in both the morning and afternoon of the same day. Some other programs that use volunteers provide them with bicycles, motorcycles or taxi/bus fares to enable them to visit disputants, conduct pre-intervention interviews and travel to agreed-upon venues to provide dispute resolution assistance. Other programs have also provided intermediaries with cell phones or sim cards that enable them to communicate with the mechanism’s management, mediation supervisors, and disputants, providers of legal information or individuals or entities that can provide other needed assistance.
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Provide disputants with choices concerning their dispute provider – Legitimacy of dispute resolution procedures and providers are often enhanced when disputants have a choice regarding who provides them with services. There are several procedural options to choose from which decision makers on the pilot would need to determine:
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Parties have the choice of selecting an individual mediator or arbitrator, or co-mediators from a roster of pre-qualified intermediaries
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Parties have the authority to select members of a three to five person intermediary panel that can conduct mediation or arbitration
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Parties have the authority to select from pre-assembled intermediary panels
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Parties are assigned an individual intermediary, co-mediators or panel by the entity providing mediation services, and do not have a direct choice in selection of the third party
Similar procedures for determining appropriate and acceptable dispute resolution providers would need to be determined for a pilot if it has another focus.
Enhancing Accessibility – Being known to all stakeholder groups for whose use they are intended, and providing adequate assistance for those who may face particular barriers to access
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Promote accessibility to dispute resolution services in remote areas – Developing a highly accessible dispute resolution service in remote areas that is affiliated in some way to courts will not be easy. This will especially be the case if services are provided primarily in a central location, such as a court or Hub. One option for expanding the reach of services in remote locations is for service providers to engage in circuit riding, where they travel to outlying areas on a regular schedule and are available to provide dispute resolution assistance in more remote villages. This model has been used effectively by several non-governmental organizations that provide dispute resolution services.
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Provide low-cost dispute resolution services – One of the barriers to disputants utilizing courts to resolve their conflicts are transactional costs that are often beyond the capacities of many parties. If a dispute resolution service is provided under the auspices of a court, a two-track entry process for cases could be implemented, one for pre-filing and another for post- filing.
If disputants bring a dispute to a court and do not want to pay a filing fee for it to be heard by a judge, it could be registered and assigned to a non-judicial dispute resolution process with a minimal or no filing fee. If, however, the disputant want the case to be heard by a judge if they cannot reach a voluntary or mutually acceptable agreement, or if they want a judge to review and recognize a stipulated agreement, the normal filing fee would be charged.
Enhancing Predictability – Providing a clear and known procedure with an indicative timeframe for each stage, and clarity on the types of process and outcome available and means of monitoring implementation
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Clarify dispute resolution procedures – Procedures provided by the government mechanism should be clearly articulated and explained to disputants before they start the process. Disputants should be able to choose whether they want to use mediation as a voluntary decision making process or arbitration to get a binding decision. Projected timeframes for reaching a resolution should also be explained and understood.
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Clarify the roles and functions of the entity providing dispute resolution services – It will be important for the entity that is the institutional home and provider of dispute resolution services clarify for itself, other government agencies, citizens and disputants what its roles, functions and responsibilities are.
Some of them include:
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Publicizing the dispute resolution service
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Conducting intake of cases, including both those submitted for pre-trial dispute resolution assistance prior to filing with a court, and those that have been filed with the court for a hearing
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Assessing cases and determining with disputing parties appropriate dispute resolution procedures to be used and appropriate service providers
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Referring cases to appropriate service providers (court-based staff who are intermediaries, private volunteer or paid third parties – mediators or arbitrators – who regularly attend court and are available to take cases or referrals of parties to a court-approved roster of intermediaries – again mediators or arbitrators – from which they can select their third party).
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Ongoing monitoring of progress in case resolution
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Conducting supervision of intermediaries and their performance
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Accepting, recording and registering agreements between parties that have been reached voluntarily or through a voluntary arbitration process
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Maintaining a data base to track categories of disputes submitted for resolution, case handling, outcomes, trends, potential needs for systemic changes, etc.
If the judiciary or a court is not the institutional home for the pilot, courts could still:
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Refer HLP cases that have been filed with the court for a pre-trial voluntary dispute resolution
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Recognize stipulated voluntary agreements of cases that have been filed with the court
Enhancing Equitability – Seeking to ensure that aggrieved parties have reasonable access to sources of information, advice and expertise necessary to engage in a [dispute resolution] grievance process on fair, informed and respectful terms
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Provide legal services, information and advice – As for customary authorities described above, the MOJ and its partners should promote the development of legal services clinics or legal advisors that can provide information to intermediaries or involved parties on relevant statutory laws, responsibilities of intermediaries and the rights of disputants. This information should help weaker parties to more effectively participate in dispute resolution procedures and advocate for their rights and interests.
Providers of legal information could be attached to courts, the MOJ or a civil society legal services provider.
Enhancing Transparency – Keeping parties to a grievance [or dispute] informed about its progress, and providing sufficient information about the mechanisms performance to build confidence in its effectiveness and meet any public interest at stake
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Require government sponsored dispute resolvers to inform disputants about expected timelines and mileposts for various stages and procedures in the dispute resolution process – This should include information about the time required to talk with all parties, timing of dispute resolution meetings, when an outcome might be expected and so forth.
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Draft written settlement agreements that specify the intentions of disputants or provide the logic or rational for a decision made by an intermediary – Drafting written agreements, securing their approval by disputants and providing each with a copy can help promote transparency. Additionally, if a decision is made by an intermediary, the logic and rational should be provided for his or her final decisions or awards.
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Provide a registry for agreements – The entity that is the institutional home for the dispute resolution mechanism and service should provide a registry for all agreements reached by disputants or decisions made by intermediaries. If desired by disputants, outcomes of dispute recorded in the registry could be confidential. Registered outcomes of disputes should be readily available to disputants if they need to access them at some time in the future.
Enhancing Rights Compatibility – Ensuring that outcomes and remedies accord with internationally [and nationally] recognized human rights
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Educate mediators and arbitrators about relevant laws, rules and regulations that should be used in resolving family disputes – Intermediaries should receive legal briefings about relevant laws so that they can assist parties to “bargain in the shadow of the law” and reach agreements that comply with them. Intermediaries serving as arbitrators and decision makers should receive similar training so that they are applying appropriate standards in their deliberations and awards.
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Clarify the legal standing of agreements or decisions reached through dispute resolution procedures provided by the government mechanism – Disputants commonly want to know if the outcomes of nonjudicial dispute resolution procedures are “legal” and enforceable by a court of law. The MOJ and/or the Judiciary should clarify the legal standing of negotiated agreements and stipulated agreements submitted to a court.
Enhancing continuous learning – Drawing on relevant measures to identify lessons for improving the mechanism and preventing future [disputes] grievances and harm
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Develop a data base and look for trends – As for customary dispute resolution cases described above, data on dispute resolution procedures, timeframes in which disputes were handled, contents of written agreements and outcomes should be entered into a data base, so that patterns of procedures and outcomes can be tracked and analyzed for times required to settle cases, fairness of outcomes, appeals and the extent of forum shopping.
Having records of written agreements can also be used to determine interventions by the mechanism’s management or other designated body if unfair treatment is occurring.
Finally, as for customary cases, reviewing compendiums of written agreements can identify legal or structural conflicts that may require revisions of existing or new legislation to address and to prevent them from occurring.
Enhancing engagement and dialogue – Consulting the stakeholder groups for whose use they are intended on their design and performance, and focus on dialogue as the means to address and resolve grievances [and disputes]
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Promote the use of mediation to reach voluntary agreements – Mediation is a process that relies on dialogue between disputing parties to reach mutually acceptable agreements. Mediation is one process recognized by the “Protect, Respect and Remedy” Framework. The entity in which the pilot is housed should promote the use of mediation.
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