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
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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. Moore, Ph.D. Partner CDR Associates February 13, 2014 This Study was commissioned by the Ministry of Justice of Liberia with support from the World Bank AuthorLead Author Dr. Christopher W. Moore, a Partner of CDR Associates in Boulder, Colorado, USA, has worked in the fields of collaborative planning, multiparty decision making and conflict management for more than three decades. He is an internationally recognized mediator, facilitator, dispute systems designer, trainer, and author in the field of conflict management. He specializes in resolving organizational, land, water and natural resource conflicts. Moore has provided dispute resolution intermediary and capacity-building services in 50 countries, including Liberia. He was trained as a mediator by the U.S. Federal Mediation and Conciliation Service (1979) and the American Arbitration Association (1976), and holds a Ph.D. in political sociology and development from Rutgers, the State University of New Jersey. He is the author of The Housing, Land and Property Handbook for Designing and Implementing Collaborative Dispute Resolution. Oslo, Norway: Norwegian Refugee Council, 2012; The Mediation Process: Practical Strategies for Resolving Conflict (San Francisco: Jossey-Bass, 2003, 3rd Edition) and numerous other journal articles and manuscripts on conflict management. He is the co-author of The Handbook of Global and Multicultural Negotiation (San Francisco: Jossey-Bass, 2010), and A Guide to Designing and Implementing Grievance Mechanisms for Development Projects (Washington, D.C.: Office of the Compliance Advisor/Ombudsman, International Finance Corporation, 2008).
Ms. Daramy-Mensah is the Chair of the National Board of Parole and a Consultant to the Ministry of Justice, with the Bureau of Corrections and Rehabilitation. She was formerly a Special Projects Assistant for International Monetary Fund and a staff member of the Carter Center. Ms. Daramy-Mensah is a Licensed Graduate Social Worker with specialization in Clinical Mental Health. Contributor on Legal and Institutional Frameworks Arthur T. Johnson, Esq. is a Managing Partner in the Sesay, Johnson, and Associates Law Chambers in Monrovia, Montserrado County, Liberia who has working experience in the criminal justice system of Liberia. He earned a Bachelor of Science Degree in Criminal Justice from the Wilfred E. Clarke College of Criminal Justice, A. M. E. Zion University in Liberia, and subsequently a Bachelor of Public Administration, Bachelor of Law and Master of Arts in Political Science, International Relations. He is currently a candidate for a Master of Public Administration Degree at the University of Liberia. Counselor Johnson is currently the Dean of the Wilfred E. Clarke College of Criminal Justice, A.M.E. Zion University and served as Instructor of Criminal Justice in areas of Law Enforcement, Police Administration, Criminal Investigation, Criminalistics, Criminology, Drugs and Abuse in the Criminal Justice College of A.M.E. Zion University and in Public Administration in the University of Liberia
ADR………………………………………Alternative Dispute Resolution AFELL……………………………………Association of Female Lawyers in Liberia CDR………………………………………Collaborative Dispute Resolution CLA……………………………………….Community Legal Advising EWER-WG…………………………….Early Warning and Early Response Working Group ICLA………………………………………Information, Counselling and Legal Assistance Project (NRC) IDP………………………………………..Internally displaced persons/people LRC……………………………………….Law Reform Commission LWG………………………………………Legal Working Group MOJ………………………………………Liberian Ministry of Justice MIA……………………………………….Liberian Ministry of Internal Affairs NRC……………………………………….Norwegian Refugee Council PCs ……………………………………….Peace Committees RJ………………………………………….Restorative Justice SWG………………………………………Sector Working Group TCC………………………………………The Carter Center UNICEF………………………………….United Nations Children’s Fund UNMIL…………………………………..United Nations Mission in Liberia USAID……………………………………United States Agency for International Development USIP……………………………………… United States Institute of Peace WB………………………………………..World Bank Table of Contents Executive Summary ................................................................................................................................................... ix Chapter 1 – Introduction ............................................................................................................................................1 Chapter 2 – Access to Justice: What it is and why it is Important ..............................................................................3 Chapter 3 – Methodology for the Scoping Study .......................................................................................................5 Chapter 4 – Liberian Values Concerning Dispute Resolution and their Relationship to Restorative Justice .............7 Chapter 5 – Types of disputes currently occurring in Liberia that could benefit from Non-Judicial Dispute Resolution Procedures ...............................................................................................................................................9 Chapter 6 – Non-judicial Dispute Resolution: “Alternative Dispute Resolution” (ADR) and “Collaborative Dispute Resolution” (CDR) .................................................................................................................................................... 23 Chapter 7 – Types of Non-judicial Dispute Resolution Mechanisms and Procedures in Liberia, who provides them, and how they meet the needs of Citizens and Members of Marginalized Groups at the Local Level .................... 27 Chapter 8 – The Current Legal and Institutional Framework in Liberia that Permit, Encourage or Constrain the Use of Non-judicial Dispute Resolution ................................................................................................................... 64 Chapter 9 – Strengths of Current Mechanisms, Procedures and Personnel that can be Enhanced or Built Upon, and Gaps in Services and Providers ......................................................................................................................... 76 Chapter 10 – Standards and Criteria for Selection of a Pilot ................................................................................... 80 Chapter 11 – Potential Options for the Pilot ........................................................................................................... 82 Appendix A: Alternative Dispute Resolution (ADR)/Collaborative Dispute Resolution (CDR) .............................. 110 Appendix B: List of Interviewees and Participants in Focus Groups ..................................................................... 116 Appendix C: Questions for Interviews and Focus Groups ..................................................................................... 128 References and Bibliography ................................................................................................................................. 134 Executive Summary Background to the Ministry of Justice Dispute Resolution Initiative Citizens and communities need trusted, efficient, timely and cost effective ways to voice their concerns, problems and disputes. They also need effective procedures to get them resolved in a mutually satisfactory manner according to the law and societally acceptable standards and criteria. Governments and civil society organizations need to provide mechanisms, procedures and dispute resolution service providers to achieve these goals. The Liberian Ministry of Justice (MOJ), with financial assistance from the World Bank, is launching a threeyear initiative to design and implement a pilot project to increase the effectiveness and use and test the viability of non-judicial dispute resolution procedures that can augment and complement the government’s judicial system and adjudicative processes. These mechanisms and procedures are commonly referred to as Alternative Dispute Resolution (ADR) or Collaborative Dispute Resolution (CDR). The term “alternative” refers to institutional and procedural options to settle disputes other than taking them for resolution to a statutory court. The term “collaborative” emphasizes procedures that help disputing parties negotiate or mediate and reach mutually acceptable agreements, or secure satisfactory decisions made by a trusted third party. It should be noted that customary dispute resolution procedures that are commonly used in Liberia are examples of ADR/CDR as they are provided outside of the statutory judicial and court system and commonly emphasize reaching mutually acceptable consensual outcomes. The impetus for the MOJ’s initiative includes potential positive aspects of ADR/CDR as well as ways to address difficulties or barriers experienced by prospective or actual users of current judicial procedures. Possible positive aspects of the use of ADR/CDR include – accessibility of users to dispute resolution services, lower transaction costs, rapid outcomes, an emphasis on reaching voluntary consensus agreements or mutually acceptable decisions, potential restoration of damaged relationships, returning harmony to groups and communities and compatibility with Liberian view and values about what constitutes justice. The MOJ Initiative The first steps of the MOJ’s initiative have involved several studies, a Desk Review and a Scoping Study, and additional research to address the following topics or questions:
When addressing the above topics and questions, researchers applied the “Respect, Protect and Remedy” Framework developed by the United Nations, which establishes performance standards for both state judicial and non-judicial dispute resolution mechanisms, procedures and service providers. Specifically, the mechanisms and procedures should be perceived by users as legitimate, easily accessible, have predictable and known procedures, able to empower weaker parties so that they can fully participate in dispute resolution processes, transparent regarding outcomes and how they are developed, create opportunities for learning and addressing underlying causes of conflicts, and based on dialogue and voluntary decision making. The Desk Review The Desk Review and related research reviewed literature related to the practice of non-judicial dispute resolution in Liberia, identified and collected legislation from around the world that could provide guidance on the institutionalization of non-judicial dispute resolution mechanisms and programs, and reviewed literature on restorative justice (RJ), a process that seeks to resolve disputes and restore torn relationships. The Scoping Study Preparation of the Scoping Study, this document, involved soliciting and compiling the views of diverse Liberians – government officials from the executive and judicial branches, customary authorities and members of organizations of traditional leaders, citizens, members of leaders of community based organizations and national and international non-governmental organizations – on common types of conflicts in Liberia that are important, potentially harmful and need to be addressed and resolved; strengths and gaps in current non-judicial dispute resolution procedures and services; and ideas for a potential pilot and how it might be implemented. This information was integrated with that from the Desk Review to complete this document. The Scoping Study will be used by the MOJ and its partners to determine the focus and scope of the pilot, and the mechanisms, procedures and service providers that should be used to provide Liberian citizens with greater access to justice.
The methodology for the Scoping Study to gather information about Liberian’s views on the potential focus of the pilot and mechanisms to implement it involved convening four large focus groups in Bong, Lofa, Montserrado and Nimba Counties, which the MOJ targeted as potential locations for the pilot. Over 50 people from across Liberian Society participated in each of the focus groups. Focus group participants were asked to identify the most common disputes in the country, which were most important to resolve because of their impacts on disputants and their communities and potential harm they could cause, non-judicial mechanisms currently in place to address and settle the disputes, what was working and not working, gaps in services and recommendations for the pilot and how to implement it. Additionally, the research team interviewed 231 Liberian leaders and opinion makers, either individually or in small groups, on their views dispute priorities, gaps in the current provision of judicial and non-judicial dispute resolution services, and the potential focus for the pilot and related mechanisms, procedures and service providers. In all, between interviews and focus groups, over 450 people were consulted on the focus and various aspects of the future pilot. Strengths of Current Non-judicial Systems, Mechanisms, Procedures and Personnel, and Gaps in Services and Providers Results of interviews, input from focus groups and the results of research for the Desk Review identified a number of strengths and gaps of current non-judicial mechanisms, procedures and personnel. Some of the strengths include:
Interviews, focus groups and the Desk Review also identified types of disputes where there were gaps in the provision dispute resolution services, which could be the focus of the pilot, or potentially multiple pilots. The categories of disputes that focus group participants and interviewees believe are the most important to resolve and received the broadest support from respondents were: 1) a range of types of family disputes, and 2) land disputes (including housing and other property issues). A second set of categories for the possible focus of the pilot, with a smaller but still a significant degree of support, included: 1) minor criminal cases, 2) disputes or offenses involving juveniles, and 3) pre-trial detention issues. A Third set of disputes that interviewees, focus group participants and the Desk Review indicated were important to resolve, but not as common as those listed above, included disputes over payment of debts, breaches of contracts, landlord-tenant issues, employer-employee relations, obligations to engage in activities of benefit to the community (such as brushing roads and trails), and religious issues and practices. A final set of disputes identified by focus groups included 1) disputes between communities, and 2) disputes between communities and concessions.
Based on input from interviewees, participants in the focus groups and background research, the Study identifies five potential options for the focus of the pilot, and measures to implement them that will promote alignment with the “Respect, Protect and Remedy” Framework developed by the UN. Options for the pilot or pilots include:
Family disputes were identified as one of the most important types of conflicts to resolve. This option has two potential components, strengthening and enhancing dispute resolution services provided by customary authorities, and/or creating government-provided/sponsored non-judicial collaborative dispute resolution services under the auspices of the MOJ, Courts or other government entity. Most likely the services provided by the government option would involve mediation, but arbitration too, could be considered. Each of these initiatives could be conducted separately, but may be stronger if they are implemented in coordination with each other. This could help harmonize statutory and customary legal systems, procedures and services provided by dispute resolvers. More information on this option can be found on pages 78 – 79 of this study.
Land disputes in both rural and urban areas are among the top types of conflicts that respondents in interviews and focus groups and research indicate need to be resolved. This option too, has two potential components, one that builds on existing customary procedures and services, and a second that would expand and enhance an initiative of the Liberian Land Commission. The latter option could be conducted in collaboration with the Commission, or depending on its future mandate, independently in another institutional home such as the MOJ or Judiciary. Both options would involve enhancing and expanding the provision of existing services and procedures – negotiation, mediation and related customary procedures – and potentially - introducing new ones, such as arbitration or a land tribunal. More information on this option can be found on pages 89 -94 of this study.
Interviewees, participants in focus groups and research indicate that crime, both serious and minor offenses and committed by adults or juveniles, is a significant problem in Liberia. The high numbers of offenses and legal cases, and limited court capacities, have often made it difficult for citizens to secure effective and timely judicial decisions. This problem has also led to a high number of pre-trial detentions, often for extended periods of time. This option also, has two potential components, which could be implemented independently or together, and could focus on the resolution of minor offenses committed by adults, juveniles or both. The initiative could also help prevent unnecessary pre-trial detentions and utilize diversion and release programs. It should be noted that a focus on juveniles may be more acceptable to a range of government entities and members of civil society concerned about the use of non-judicial dispute resolution procedures in criminal cases. Youth offenders are members of a vulnerable population. Use of non-judicial ways to address offenses can help prevent youth being caught in a criminal justice system where they may be harmed, help prevent recidivism and promote reintegration of juveniles into their families and communities. The first component would expand the authority of customary authorities to hear and resolve specific categories of minor offenses committed either by adults and/or juveniles. They could also be mandated to find alternative solutions to pre-trial detentions. This option would likely require legislative action. The second option would be to build on and enhance the existing juvenile diversion program and related services developed by the Liberian Child Justice Forum, or initiate new government-provided/sponsored non-judicial collaborative dispute resolution services under the auspices of the MOJ, Courts, other government entity or civil society organizations, such as Peace Committees. This service would provide mediation assistance to help resolve defined types of minor criminal case committed either by juveniles or adults. More information on this option can be found on pages 95-100 of this study.
Interviewees, participants in focus groups and research indicated a need for one or more mechanisms that could address and help resolve a number of types of civil disputes, and potentially also address minor criminal offenses. There are a variety of international examples of these kinds of mechanisms based in a Ministry of Justice, the Judiciary or Courts, in local governments or civil society organizations. More information on this option can be found on page 101 of this study.
The remaining two options for the pilot, identified by participants in interviews and focus groups as being important, involve multi-party disputes. These are not as common as the ones identified above. They include intra and inter-community disputes, often over boundaries or other group differences, and corporate-community conflicts. This Study presents some potential options for how these disputes might be addressed, but does not provide extensive details on mechanisms and procedures for this focus, as it is likely to be beyond the potential scope of a MOJ pilot. Information on these options for a pilot can be found on page 101 of this study. If more data about these disputes and mechanisms and procedures to address them is needed, it can be provided. Next Steps for the MOJ and its PartnersThe initial tasks at this time for the MOJ and its partners are to:
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