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

Chapter 9 – Strengths of Current Mechanisms, Procedures and Personnel that can be Enhanced or Built Upon, and Gaps in Services and Providers

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Chapter 9 – Strengths of Current Mechanisms, Procedures and Personnel that can be Enhanced or Built Upon, and Gaps in Services and Providers

Strengths related to the Provision of Non-Dispute Resolution Assistance

Listed below are strengths of current non-judicial dispute resolution mechanisms and procedures available to citizens in Liberia to resolve a wide range of disputes. These strengths should be considered and built upon by the MOJ when selecting, designing and implementing its pilot project to enhance existing dispute resolution mechanisms and procedures and/or introduce new ones to improve access to justice.114 The strengths include:

  • A commitment by the Ministry of Justice and one of the principle governmental agencies with a mandate to provide citizens with access to justice, to explore development and implementation of alternative nonjudicial institutions, mechanisms and procedures for resolving a range of disputes of importance to citizens.

  • An evolving culture of consultation to seek input from citizens who will or may be affected by governmental decision making, as exemplified by the National Conference on Enhancing Access to Justice that reviewed the traditional and formal justice systems in the country and input for this study. Past examples of cooperation by government Ministries and entities to explore potential changes of authorities and mandates in the area of justice, as indicated by the collaboration of the Ministry of Justice, Ministry of Internal Affairs and the Supreme Court of Liberia that organized the National Conference on Enhancing Access to Justice National governmental committees are in place and are working on harmonizing/coordinating statutory and customary laws, institutions, mechanisms and procedures.

  • Customary authorities and dispute resolution procedures are in place and functioning in rural areas, and are providing easily accessible and low-cost conflict resolution options for disputants.

  • General broad acceptance by citizens in rural areas of customary authorities and their roles and responsibilities in providing dispute resolution assistance.

  • Liberian values that support restorative justice principles and procedures.

  • A model for enhancing collaborative dispute resolution in rural areas developed by the Liberia Land Commission.

  • Viable models for collaborative dispute resolution developed by civil society organizations that may be built upon and expanded to better meet the needs of citizens for access to justice.

  • Some capacities of NGOs, INGOs and individual trainers to train new practitioners in collaborative dispute resolution procedures.

  • Approaching 1,000 individuals have been trained in collaborative dispute resolution procedures – interest-based negotiation and mediation – by the UN’s Peacebuilding Office; the Land Commission’s LCC initiative with assistance from LCRP, NRC and the Carter Center; and numerous independent training programs conducted by these last two groups and individual trainers.

  • International donor interest in developing and supporting non-litigious mechanisms and procedures for resolving a wide range of disputes.

Needs, Constraints and Gaps in Current Mechanisms, Services, Procedures and Service Providers that could be addressed by a Pilot ADR/CDR System, Mechanisms and Procedures

Gaps in dispute resolution institutions, mechanisms, services, procedures, service providers and legal factors have been identified throughout this study, and will not be repeated here. There are, however, several significant gape identified by interviewees, focus groups participants, participants in past conferences and research for the Desk Review that should be noted. A select number of them are presented below. Ways to address them will be addressed in Chapter 10: Potential Focuses for the Pilot.

General Gaps

  • Gaps in customary mechanisms, procedures and service providers – Customary authorities currently play a major role in resolving disputes in Liberia. While many of them and the procedures they use are respected by citizens, especially in rural communities, others have concerns about service providers, procedures and outcomes. Those who commonly raise questions are actors in broader justice system and women, youth and strangers.

Justice officials are generally concerned about standardized and predictable procedures, adherence to and respect for statutory laws, and transparent, fair and rights-compatible outcomes. Women youth and strangers are generally concerned about accessible services, predictable processes, impartial intermediaries, equitable treatment, transparent outcomes and recognition of the rights, human rights and others, of the weak or minorities.

If customary authorities and procedures are to be an integral component of improving access to justice, which they currently are and will likely be in the future, measures will need to be taken by the government to enable them to move toward compliance with the “Respect, Protect and Remedy” Framework. To do this the government will need to implement measures that will help customary authorities retain and increase respect given to them by community members and to perform in a manner that addresses some of the questions and concerns raised above. This involves, but is not limited to clarifying: the types of disputes customary authorities are authorized to handle, standards and criteria to be used in guiding or determining outcomes of disputes, creating predictable procedures, establishing standards of conduct and ways to monitor adherence to them, and enhancing dispute resolution skills.

  • Gaps in dispute resolution mechanisms, procedures and service providers in the governmental and civil society sectors – Significant progress has been made by some government agencies and civil society organizations to provide dispute resolution mechanisms and services that are in alignment with the “Respect, Protect and Remedy” Framework. There is, however, a significant gap between what is needed in the way of mechanisms and services and what is available. This is especially true for mechanisms that can help resolve a range of types of disputes, relieve the pressing burden on courts and help address serious pre-trial detention issues. The government needs to carefully consider where it should put its efforts and resources to increase provision of dispute resolution services by government agencies and also encourage civil society actors to expand their activities into this area.

Gaps in Dispute Resolution for Specific Types of Disputes

  1. Family Disputes

Resolution of family disputes is a high priority for citizens in Liberia. Gaps in the capacities and services provided by some customary authorities have been described above. There is also a gap in service provision for parties who do not want to use customary processes to resolve family disputes and who frequently take them to a statutory court to resolve. This occurs predominantly, but not exclusively, in urban areas. More services, especially collaborative dispute resolution services such as mediation, could be very helpful in addressing a range of family disputes in urban areas and in the courts.

  1. Housing, Land and Property (HLP) Disputes

Many HLP disputes are currently being effectively handled and resolved by customary authorities, the Land Commission’s LCC initiative and national and international non-governmental organizations. These procedures and service providers can always benefit from ongoing assistance to improve the quality of services. Additionally, these mechanisms and procedures need to be expanded from where they are currently being provided to citizens across the country.

There is a significant gap in HLP dispute resolution services in urban areas where customary procedures are not as widely available or accepted, and land and property are held under both statutory title and deeds and customary use rights.

There is also a gap in the time and cost of resolving HLP disputes in the courts. While some courts have low HLP case loads, others seem to have a significant number of these cases. New collaborative methods need to be initiated and institutionalized to alleviate the court load in jurisdictions that have a high number of HLP cases.

  1. Minor Criminal Offenses and Pre-Trial Detention Issues

Interviews, focus groups, the Desk Review for this study and other research identified a high number of minor criminal cases involving both adults and juveniles, difficulties of courts processing and settling them in an efficient and timely manner and a significant number of pre-trial detainees with resultant impacts on their rights. Dispute resolution procedures need to be considered – which could be provided by customary, other government service providers, or both – to address this gap in services and respond to human rights issues related to extended pre-trial detention.

  1. Interpersonal, Civil, Commercial and Employment Disputes

Interviews and focus group input for this study identified a gap and need for methods to resolve a range of civil disputes in a timely, efficient and cost-effective manner that also respects Liberian values related to justice. Once again, these types of differences can be addressed by promoting more effective customary procedures or creating government or civil society-based mechanisms and service providers.

  1. Serious Conflicts involving different Communities

Because of Liberia’s diverse population, there is an ongoing need for some kind of dispute resolution service, personnel and systematic procedures that provide assistance in resolving disputes within and between ethnic and religious communities. To date, most initiatives in this area have been relatively informal. To some extent, Tribal Governors’ Courts are providing some services of this type, at least with regard to ethnic communities in urban areas.115 The Council of Chiefs and Elders of Liberia has provided these services on a more ad hoc basis.

The mechanism should have the capacity to engage in crisis intervention when there is the potential for or actual violent conflict.

  1. Corporate-Community Disputes

As identified in the earlier chapter in this study on Types of Disputes in Liberia, corporate-community disputes are on the rise. There is a serious need for services that can prevent and help resolve disputes at the pre-concession, construction, operations and de-commissioning stages of concessions. Services are needed to help communities address free prior and informed consent, negotiate benefit agreements and work with companies to develop viable grievance mechanisms.

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