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 Resolving Housing, Land and Property Disputes

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A potential Pilot focused on Resolving Housing, Land and Property Disputes

Housing, land and property (HLP) disputes, and the need for effective approaches and procedures to resolve them, were overwhelmingly identified by the majority of participants in focus groups, interviews and the Desk Review as one of the top two categories of conflicts that need to be addressed and resolved. The importance of effectively resolving HLP disputes is based on their potential or actual impacts on people’s abilities to secure livelihoods and have peace and stability in their relationships within families, between neighbors and in communities; and recognition of the rights of women, youth, strangers and those who are differently abled. Interviewees and participants in focus groups also indicated that these kinds of disputes were often amenable to resolution by non-judicial collaborative dispute resolution procedures.

Significant work on enhancing existing mechanisms and personnel involved in resolving HLP disputes has already been initiated by the Liberian Land Commission (LC), with assistance from USAID and Tetra Tech’s Land Conflict Resolution Project, UN Habitat, the Norwegian Refugee Council and the Carter Center. Land

Coordination Centers (LCCs) have been established by the Commission in Bong, Lofa, Margibi, Maryland and Nimba counties to help facilitate, but not directly resolve, the settlement of land disputes. (The Commission does not currently have a legal authority to directly engage in the resolution of HLP disputes.) Intermediaries identified and selected by the Commission and assisted by the LCCs to resolve HLP disputes include customary leaders, local government officials, and leaders of community, women’s and youth groups.

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

  • Respond to the desires of disputants for a pilot to resolve HLP disputes over both rural and/or urban land. So far, most efforts by the Land Commission have been focuses on rural areas or smaller towns. However, with the population of the country living in urban areas approaching 50 %, there is significant merit considering the provision of collaborative dispute resolution services in larger towns and cities, as well as continuing to do so in rural areas.

Building on existing perceptions of urban dwellers regarding who is trusted to help them resolve HLP disputes, intermediaries could be recruited from elders and other respected members of urban communities, women’s and youth groups, civil society organizations, (and, potentially, trusted police). As with the LC and LCC initiatives, all service providers should be given extensive training in collaborative dispute resolution approaches, procedures and skills, with an emphasis on mediation.

  • Establish a credible institutional home and governance structure for a housing, land and property (HLP) dispute resolution mechanism and services – As in the case for government-provided family dispute resolution services, the location of the mechanism can significantly promote the legitimacy of the procedures and services that are provided. A decision about the institutional home will likely be significantly influenced by government decisions about the future of the Land Commission – whether it is terminated at the end of its current mandate, reauthorized with a similar mandate and limited direct dispute resolution authorities, reauthorized with an expanded dispute resolution mandate, becomes an new independent agency with a policy and/or a dispute resolution mandate, or its functions are taken over by an existing ministry. Some potential options for an institutional home include:

    • A MOJ administered program – such as is the case in Sri Lanka.

    • A court-annexed dispute resolution program – with an administrator at each pilot site who is in charge of management and oversight of the provision of dispute resolution services – such as the case in a number of U.S. courts.

    • A partnership between the MOJ and Land Commission – with new LCCs established to support provision of collaborative dispute resolution services, as is now the case in some rural counties, an agreement between the MOJ and Land Commission on the oversight of the service providers and what dispute resolution services will be provided. (This arrangement could allow both the oversight and direct provision of dispute resolution services through the MOJ, which are currently not covered in the Land Commission’s mandate.)

    • A “home” in a local government institution – as is the case in the Barangay Justice System in the Philippines, (which may or may not be acceptable in Liberia because of the desires of some to separate executive and judicial or quasi-judicial mandates and functions.)

    • A free-standing independent institution – as is the case of the Alternative Dispute Resolution Centre in Ghana. A strength of this model is that the institution’s independence from any pre-existing ministry, court or other entity, and its ability to be significantly depoliticized. However, weaknesses are that the pilot, and ultimately a new entity in the future, may not have a powerful institutional home and champion to advocate for its continued existence, and the lack of attachment may inhibit its ability to secure a predictable and ongoing stream of funding.

Models for governance could be similar to those described for government-provided family dispute resolution.

  • Use respected and legitimate customary authorities – In rural areas, the Land Commission has placed primary emphasis on the involvement of customary leaders, traditional owners of land and elders as intermediaries. They are familiar with local landholding histories and patterns, generally have the respect of community members and authority to guide collaborative problem solving between disputants, can make land allocation or distribution decisions and make authoritative recommendations or decisions on how to resolve conflicts if voluntary agreements cannot be reached. This practice should be continued.

  • Use respected and credible dispute resolvers other than customary leaders – In urban areas, individuals other than customary leaders may be intermediaries of choice.

  • Provide disputants with choices concerning their dispute provider As in the case for resolution of family disputes described in the section above, legitimacy of dispute resolution procedures and providers can be enhanced when disputants have a choice regarding who provides them with services. Appropriate procedures for selection of intermediaries will need to be determined for the pilot.

  • Assure the competency of dispute resolution service providers – Individuals providing HLP dispute resolution services should receive extensive training in conflict analysis and strategy design, communications skills, the mediation and/or arbitration process to be used to resolve disputes and the laws and regulations related to the kinds of cases they will be handling.

Intermediaries recognized by the LC and who have been put on LCC rosters of recognized as trained third parties have been provided with four-days of mediation training, conducted by staff of the NRC and Carter Center under the auspices of the LCRP, and some of them have participated in additional legal training. All LCC staff members have also been trained in dispute resolution and organizational administrative procedures and skills, and some of them as trainers to augment the capacities of the NRC and Carter Center training teams. UN Habitat has also provided administrative training for LCC staff, as well as funding for LCC staff salaries and office equipment.

The mediation training provided to Land Commission-recognized intermediaries has been designed to augment and enhance existing customary procedures. Although many customary leaders strive for consensual agreements between or among concerned parties, or voluntary acceptance of recommendations or decisions made by them, this is not always the case. Some customary authorities see themselves more as judges with the authority to issue binding rulings regardless of the acceptance of the outcome by disputing parties. Others have used and apply their newly acquired mediation approaches, procedures and skills.

  • Provide HLP dispute resolvers with necessary support services. Intermediaries working to resolve HLP disputes commonly need several kinds of support:

    • Legal information and advice – As noted above for government-provided dispute resolution in the family area, dispute resolution service providers working to resolve HLP disputes need to have legal information and advice where statutory issues related to land are in question. This can be provided by a legal advisor attached to the pilot as a whole or to each pilot site. This model for legal assistance and information is currently being used by both the NRC and Carter Center.

    • Information on customary law and common practice – When housing, land or property are held under a customary use agreements – and intermediaries are not customary leaders, land holders or elders knowledgeable of customary law and practices – intermediaries will need information advice from individuals knowledgeable in customary law. Individuals should be identified who can provide this kind of information both to intermediaries and parties.

    • Survey assistance – Resolution of HLP disputes can often be facilitated by professional surveys of land. Surveys can define the property in question, determine boundaries, identify the extent of encroachments or sales, and formalize the terms for final settlements. The NRC has effectively used this form of assistance to help resolve and finalize settlement of a large number of disputes. Provision of these services should be considered in any MOJ initiated pilot.

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

  • Promote accessibility to dispute resolution services in remote rural and urban areas – Land disputes occur throughout the country. Continued and enhanced use customary authorities in rural areas will assure continued access of disputants to dispute resolution assistance. Developing credible and effective dispute resolution services in urban areas will provide similar access to urban dwellers.

  • Provide low-cost dispute resolution services – As for the resolution of family issues described above, mechanisms to control the costs of dispute resolution services for parties is essential. Similar models for costs and/or fees as described above for the resolution of family disputes should be considered for covering the costs of settling land conflicts.

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

  • Clarify dispute resolution procedures to be offered – The Land Commission and LCC’s approach and initiatives to promote effective HLP dispute resolution in small towns and rural areas are still in their early stage of development and implementation, and their effectiveness has not yet been fully evaluated. The approach relies strongly on customary dispute resolution procedures and mediation. There have, however, been significant indications that the approach and procedures are working.

The pilot could take on the Land Commission and LCC’s existing approaches and functions of supporting voluntary resolution of HLP disputes in areas where LCCs are currently operating, expand LCC operations to other parts of these counties or move to other counties where these services are not yet available.

Two other procedural options for a HLP dispute resolution pilot, in addition to what exists and that could increase predictability, would be an expanded use of arbitration or the creation of one or more land tribunals. Parties unable to reach voluntary agreements, do not accept the decision of a customary authority or do not wish to take their disputes to court for a judicial decision could be provided with the option of using a mutually acceptable arbitrator provided by or working under the auspices of the pilot to make either a non-binding recommendation or a binding decision for them. (They can also currently go to court, file their case and indicate their interest in utilizing arbitration to reach a binding decision.)

Alternatively, or in addition to providing for arbitration, the pilot could create one or more land tribunals – government authorized entities with powers to make legally binding decisions on HLP issues in dispute. Examples of this kind of dispute resolution mechanism are the Land Disputes Tribunals in Kenya.116

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

  • Train HLP intermediaries in relevant laws, rules and regulations so that they can help disputants– regardless of their status, gender or resources – to reach fair and legal agreements. This kind of education is often critical to assure equitable treatment of disputants with diverse characteristics.

  • Provide legal services, information and advice – As in the case for customary authorities and government-provided dispute resolution services described above for the resolution of family disputes, the MOJ and its partners should promote the development of legal information providers or advisors that could provide information on HLP statutory and customary laws, and the rights of disputants. This information can help intermediaries work more effectively with weaker parties and assure that they can effectively participate in dispute resolution procedures and advocate for their rights and interests.

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

  • Require customary or government-sponsored dispute resolvers to inform disputants about expected timelines and mileposts for various stages and procedures in the dispute resolution process As noted earlier, 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.

  • Draft written settlement agreements that specify intentions of disputants or provide the logic or rational for a decision by an intermediary – As for family disputes, 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 the outcome in the written document. The Land Commission’s Land Coordination Centers are currently requiring written agreements and providing assistance to customary authorities to write them.

  • Provide a registry for agreements – The entity that is the institutional home for the HLP dispute resolution mechanism and service should provide a registry for all agreements reached by disputants or decisions made by intermediaries. The Land Commission’s Land Coordination Centers are currently serving as a repository for agreements reached by their recognized intermediaries. Copies are also provided to all disputants, customary authorities participating in the process, and local government officials. In some cases agreements have also be registered with the National Archives.

Enhancing Rights Compatibility – Ensuring that outcomes and remedies accord with internationally [and nationally] recognized human rights

  • Educate HLP dispute resolution service providers about relevant laws, rules and regulations that should be used in resolving HLP disputes – As in the case of customary or government sponsored dispute resolution providers described in the section above, intermediaries should receive legal briefings about relevant housing land and property laws so that they can assist parties striving to reach voluntary agreements to “bargain in the shadow of the law” and comply with them.

  • Clarify the legal standing of agreements or decisions reached through HLP dispute resolution procedures provided by customary authorities or a government-sponsored mechanism As for agreements voluntarily reached or intermediary decisions accepted by parties in family disputes, the standing of outcomes of HLP dispute resolution processes also need to be clarified.

Enhancing continuous learning – Drawing on relevant measures to identify lessons for improving the mechanism and preventing future [disputes] grievances and harm

  • Develop a data base and look for trends – As for data on the resolution of family disputes as described above, information on HLP 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. The Land Commission’s Land Coordination Centers are currently carrying out this data collection and entry. The result will be used to 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]

  • Promote the use of mediation to reach voluntary agreements of HLP disputes – The pilot should strongly encourage the use of mediation – whether conducted by customary authorities or other governmentprovided or sponsored mediators – to resolve these kinds of disputes. This is currently the orientation of the Land Commission’s Land Coordination Centers.

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