Promoting Access to Justice: a study on Strategies to Implement Collaborative Dispute Resolution Mechanisms and Procedures for Resolving Conflicts in Liberia Liberian Ministry of Justice By Christopher W
A Potential Pilot focused on the Resolution of Multiple Types of Disputes
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- Some Additional Choices for Pilots that focus on Resolving Multiparty Disputes
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A Potential Pilot focused on the Resolution of Multiple Types of DisputesUp to this point, the pilots have been explored that focus on the resolution of only one type of disputes, such as family or land, or potentially inter-related minor criminal issues involving adults or juveniles. Another approach for a pilot is to create a dispute resolution mechanism with a mandate to resolve a wide range of disputes. Its mandate could allow it to handle and resolve a variety of civil disputes such as those concerning family, neighbor-neighbor, land, debt, labor contract issues, and minor criminal cases. Mechanisms of this type have been created in a number of countries and have been located in a Ministry of Justice (Sri Lanka), courts (the U.S. and People’s Republic of China), local governments (the Philippines and the U.S.), district attorney’s offices (the U.S) and civil society organizations (in many countries, and some of which receive government funding to help resolve disputes). The merits of initiating a pilot with a focus on resolving multiple types of grievances, disputes or offenses is that only one mechanism may be required to provide procedures that can process a wide range of disputes. Having a mechanism with a multi-dispute focus can be easier for citizens to use because they know that there is one place that they can go to get help. Finally a multipurpose mechanism can help to address and resolve a variety of cases would normally go to courts, thus helping to relieve their overburdened caseloads. The risk of having a mechanism focused on resolving a range of disputes is that one or more kinds of cases, such as family or land, may swamp the mechanism and prevent it handling or other significant disputes that require attention. One way some mechanisms have avoided this problem is to start with a more limited mandate for cases to be handled, and gradually expand additional types once the mechanism is up and running and it is clear that it can handle an increased caseload. Some Additional Choices for Pilots that focus on Resolving Multiparty DisputesIn surveying the range of other disputes in Liberia, participants in focus groups noted there is a need for two other kinds of conflict resolution assistance: 1) a community conflict resolution mechanism to address serious multiparty intra and inter-community disputes, and 2) corporate-community dispute resolution mechanisms at both the national and project levels to resolve a rising number of disputes between local communities, concessions and the government. Models for mechanisms to address inter-community dispute include the U.S. Justice Department’s Community Relations Service, and many human rights commissions in the U.S. and Canada.119 If the MOJ decides on a pilot with this focus more information can be provided on models for mechanisms, services, procedures and appropriate service providers. Corporate-community differences and disputes occur at a variety of levels – at the national level when concession agreements are being negotiated, when companies negotiate benefit agreements with local communities, and when problems arise between communities or community members and companies on the ground. There is a growing body of literature and experience in establishing different types of corporate community grievance mechanisms.120 The World Bank is currently sponsoring a study on this topic, the results of which will be available in 2014. If corporate-community dispute resolution is selected as the focus for the pilot, additional information on how such mechanisms can implemented can be provided. Appendix A: Alternative Dispute Resolution (ADR)/Collaborative Dispute Resolution (CDR) Procedures Alternative Dispute Resolution (ADR)/Collaborative Dispute Resolution (CDR) ProceduresProcedures below are procedural options for resolving disputes other than those provided by formal state judicial and adjudicative processes and courts.* Procedures to Increase Information Available to Disputants or Third Parties Situation assessments, conflict analysis or case investigations – Investigation of a dispute, at the request of one or more disputing parties or a concerned third party, by an independent neutral party to identify and clarify issues in dispute, interests of involved parties, and potential procedures that might be used to resolve it. Situation assessments are often used by government agencies and potential intermediaries to obtain more information about a dispute and identify possible procedures to resolve them. Information exchange meetings–Meetings between or among disputing parties, without or with the assistance of a third party, to clarify information related to involved parties and the dispute, respond to and address misinformation or misperceptions, identify data needed to resolve the dispute, discuss how data will be gathered and evaluated, explore potential dispute resolution procedures and possible steps to implement them. Field or site visits –In-person visits by disputing parties, with or without the involvement of a third party, to see first-hand a physical item (house, land, property, business, livestock, an occupation, encroachment, environmental damage, etc. that is the subject of the dispute. Surveys –Services of a surveyor to determine the physical characteristics of land and property in dispute is often a valuable component of various dispute resolution procedures. Fact finding – An investigation by an independent neutral (selected by disputants, a government agency or court) focused on identification and clarification of issues in dispute and the interests of involved parties, missing facts or information needed to promote informed and wise decision making, potential procedures that could be used for resolving it and potential settlement option . Joint fact finding – A joint investigation by parties in dispute, which is often facilitated by a neutral third party, to identify and clarify the background of a conflict, issues in dispute and the interests of involved parties, facts or information needed to promote informed and wise decision making, and potential procedures that could be used for resolving it. Joint fact finding is often used in complex or technical disputes where much needed information is missing or contested. Case evaluation – A non-binding process in which parties in dispute present the background of their dispute; supporting facts, documents, laws, rules and regulations on the merits of their cases; and proposed settlements to a neutral case evaluator who assesses the information and advises the parties on the strengths and weaknesses of their positions and assesses the likely outcome of the dispute if it was decided by a judge or jury. The goal is for this information to be used by the parties to determine if they want to proceed with a judicial process or seek a negotiated settlement. *In this study customary dispute resolution procedures are not considered to be part of the government’s judicial and adjudicatory procedures as they are provided through the Ministry of Internal Affairs. Early neutral case evaluation – A non-binding process initiated after a case has been filed in court in which parties submit their dispute to a neutral expert who assesses the legal strengths and weaknesses of their positions and assesses the likely outcome of the dispute if it was decided by a judge or jury. The goal for this process, as for case evaluation above, is to provide information to the disputing parties that will help them decide if they want to proceed with a judicial process or seek a negotiated settlement. Methods of Unassisted Problem Solving or Dispute Resolution Cooperative or collaborative talks or problem solving – Informal forums and unassisted discussion processes that enable parties with differences to talk about and resolve them. Negotiation – In its simplest form, negotiation involves any type of communication and problem-solving between two or more people that is focused on developing a mutually acceptable agreement to solve a problem or resolve a dispute or conflict. In negotiations, disputants may directly advocate for their interests, or may be represented by an agent, lawyer, family member, or other acceptable ally. Conflict resolution coaching – This approach, which involves the assistance of a third party expert in negotiation and conflict resolution processes, is targeted toward individuals and groups engaged in specific problem solving or negotiation initiatives. It may involve presentation of basic substantive or legal information; or possible dispute resolution procedures, strategies or skills needed to make progress or break a deadlock. If coaching involves provision of substantive or legal information, the coach must have adequate training and knowledge to do so. Third Party Assistance to help Disputants reach Consensus Decisions and Voluntary Agreements Facilitation – An assisted meeting discussion and problem solving process in which a third party facilitates discussions with a groups’ approval to help them better understand and resolve issues in question. Facilitators are generally less directive than mediators. Mediation – “A conflict resolution process in which a mutually acceptable third party with no authority to make binding decisions for disputants, intervenes into a conflict or dispute to assist involved parties to improve their relationships, enhance communications, and use effective problem-solving and negotiation procedures to reach voluntary and mutually acceptable understandings or agreements on contested issues”.121 Mediators help by providing parties with relationship opening, establishing or building assistance; giving process advice and guidance on how to conduct effective negotiations; facilitating talks; and, in some forms of mediation, making substantive suggestions on principles or frameworks to shape agreements, or potential considerations or terms for settlement. There are many forms, approaches and procedures of mediation that vary according to their emphasis on parties’ relationships, negotiation procedures, involvement in substantive issues, outcomes and monitoring and assuring compliance with agreements that have been reached. The most common are 1) facilitative mediation in which the intermediary focuses primarily on helping to establish and promote positive working relationships between disputing parties and enhancing and facilitating an effective mediation process; 2) transformative mediation in which the intermediary helps promote recognition and legitimacy of disputing parties, greater understanding and improving their interactions and behaviors; 3) advisory or evaluative mediation in which the mediator provides not only process assistance but may also provide various levels of input, advice or recommendations on the merits of parties cases, and potential substantive outcomes at various times in the process; and 4) restorative justice/victim offender mediation in which an intermediary helps offenders to acknowledge their role in a crime, victims (and depending on the model, communities) explain its impacts on them, joint efforts to negotiate acceptable apologies, restitution and compensation plan, and ongoing monitoring of progress being made to execute it. Restorative Justice Approaches and Procedures –
Conciliation – A dispute resolution process in which a respected and trusted third party third party, who may have been selected by disputing parties or appointed by a government entity, investigates a dispute, may convene parties for talks, and when needed or required makes non-binding suggestions or recommendations on how the dispute could be settled. Parties have the discretion to accept or reject the recommendation Settlement conferences – A quasi-judicial approach to alternative dispute resolution under the auspices of a court, in which a judge or magistrate who will not be the sitting judge on a case and with the authority to make a binding ruling, hears and facilitate settlement discussions between disputing parties and their attorneys who have filed a case with the court oriented toward reaching a negotiated agreement. If an agreement is reached, the lawyers may submit the settlement to the court as a stipulated agreement and request that it be recognized by the court and have the standing of a final judgment. Third Party Non-binding or Binding Decision Making Arbitration – A private and voluntary dispute resolution process in which disputing parties collaborate and agree to submit issues in dispute to a mutually acceptable and trusted third party for a non-binding recommendation or decision on how to resolve them. Decisions by arbitrators are generally based on their assessment of the merits of each of the parties’ cases and/or application of some widely accepted standard, such as statutory or customary law or terms in a contract or agreement. Arbitrators may make decisions on the merits of parties’ cases, guilt or innocence, and responsibility or non-responsibility. They may make recommendations or decisions with distributive or integrative outcomes, or both. In some cases, arbitrators make “integrative decisions” and find compromises that take the diverse interests of involved parties into consideration, and provide each party with some degree of satisfaction. Parties to an arbitration proceeding generally have some control over the dispute resolution process, such selection of the arbitrator or arbitration panel, use or non-use of representatives, procedures and time allowed for each party to present his or her case, kinds or amount of acceptable evidence or witnesses, and whether the third party’s decision will be advisory and non-binding or binding. In many countries, a decision or an “award” by an arbitrator has the same standing as a judicial decision. Generally, a decision by an arbitrator is not appealable to a court, unless a serious violation of due process has occurred, or bias on the part of the third party can be proven. Hybrid Processes that may involve Voluntary Agreements and Third Party Decision Making Customary Dispute Resolution – mechanisms, approaches and procedures practiced by customary or traditional leaders which generally involve, in more or lesser degrees, a combination of mediation, arbitration and conciliation. Customary dispute resolution is probably the major form of dispute resolution practiced throughout the world and is very common in Africa, Asia, Latin America and customary societies in the Asiana-Pacific regions. Mediation-then-arbitration– A dispute resolution procedure that links both mediation and arbitration, but at different times and with different intermediaries. Parties to a dispute agree that they will participate in mediation. If and when they fail to reach an agreement, they agree to submit contested issues to arbitration conducted by a different intermediary from the one who previously mediated the dispute. Med-arb – A dispute resolutionprocedure that sequentially links mediation and arbitration processes. The process begins with facilitative mediation. If disputants reach an impasse, the third party is authorized by the parties to switch to the role of an arbitrator and make either a non-binding or binding decision for them on outstanding issues in question. Agreement on the process and decision making authority of the intermediary may be given by the parties either in a pre-mediation-then-arbitration agreement, or if and when an impasse is reached. In some customary processes, in the event of a deadlock, either advice or a decision by the third party is generally expected by disputants and their communities Arb-Med– This dispute resolution assures disputants that they can get a decision if they need one, but also allows them to attempt a mediated settlement. In the process, the parties each present their cases to the arbitrator and he or she makes a decision for them. However, the decision is not revealed. Parties then have an opportunity to mediate with the intermediary’s assistance, and see if they can reach a voluntary settlement. If they can, the arbitration decision, which was never revealed, is destroyed. If not, they can request the decision from the arbitrator. Ombuds procedures conducted by an ombudsman or ombudsperson – A range of dispute resolution procedures – conflict analysis, fact finding, mediation, etc. conducted by an independent and neutral third party who has been selected by an institution – a government agency, university, hospital, corporation, etc. – to handle and voluntarily resolve complaints from citizens, employee or the organizations’ clients. 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