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 8 – The Current Legal and Institutional Framework in Liberia that Permit

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Chapter 8 – The Current Legal and Institutional Framework in Liberia that Permit,

Encourage or Constrain the Use of Non-judicial Dispute Resolution

The Legal Framework for Non-judicial Dispute Resolution Mechanisms, Procedures and Service Providers

Article 3 of the Liberian Constitution establishes Liberia as “a unitary sovereign state divided into counties for administrative purposes. The form of government is Republican with three separate coordinate branches: the legislative, the Executive and Judiciary.”

The legal frameworks that define the authorities, roles and responsibilities of courts and customary authorities for dispute resolution are embodied in Articles 5 and 65 of the Constitution, the Revised Rules and Regulations Governing the Hinterland of Liberia (“Regulations”) published each year and a number of Supreme Court decisions.93

Article 65 of the Constitution states that, “The Judicial Power of the Republic shall be vested in a Supreme Court and such subordinate courts as the legislature may from time to time establish. The courts shall apply both statutory and customary laws in accordance with the standards enacted by the Legislature. Judgments of the Supreme Court shall be final and binding and shall not be subject to appeal or review by any other branch of Government”.

The Constitution of Liberia recognizes the Liberian traditional system and cultural values that are positive for national development and growth of Liberia in Chapter II, Article 5(b). The traditional justice system in Liberia draws its primary authority from this provision of the Constitution.

The Constitution, however, requires chiefs in the traditional system conform to public policies and statutes established by the state. Similar requirements have been affirmed by Supreme Court decisions.

Liberia’s customary law and institutions will be recognized so long as they do not conflict with Liberia’s Constitution (Gray vs. Beverly, (1907) 1 LLR 500 at 502; Karpeh vs. Manning (1936) 5 LLR 162; and Manney vs. Money (2) LLR 618)94.

There is currently no legal framework or national legislation pertaining to non-judicial dispute resolution mechanisms, procedures or services provided by non-customary or civil society organizations. A draft “Bill to Enact the Mediation Law of Liberia” was prepared by a committee convened by the American Bar Association, but it has yet to be finalized and introduced as proposed legislation.

Additionally, the Liberia Land Commission (LC) has been working on a draft of Principles for Alternative Land Dispute Resolution (ADLR) in Liberia.95 The document addresses fundamental dispute resolution principles such as the enforceability of agreements; self- determination by parties to participate in dispute resolution procedures, have input on the process, select the third party, be free from coercion and decide on an acceptable outcome; engagement of disputants in good-faith; non-discrimination; provisions for confidentiality; standards and expected competencies for third parties; pre- intervention investigation; fees; and the form of written agreements concerning outcomes; and LC monitoring of settlements. While intended for dispute resolution initiatives supported by the LC, many of the principles could be applied to a range of other disputes and intermediaries.

In the non-governmental arena, the Norwegian Refugee Council’s Information, Counselling and Legal Assistance Project also has a set of Principles and Approaches that guide the organization’s collaborative dispute resolution activities.96

Gaps and Recommendations:

  • Sometime during or after the pilot project, the Ministry will likely need to prepare and introduce a general dispute resolution law for Liberia.97 The law should clarify the roles and responsibilities of non-judicial dispute resolution mechanisms and procedures provided by customary, civil society and NGO service providers.

  • In the new Ministry of Justice pilot project, it would be helpful if early on, a set of principles are developed to guide intermediaries – whether customary authorities, court officials or civil society third parties - who will be providing dispute resolution services.

Separation of Judicial and Executive Powers

Liberia like many other African nations has a dual legal system with both statutory and customary laws and institutions.121 Article 3 of the Constitution states that “Consistent with the principles of separation of powers and checks and balances, no person holding office in one of these branches shall hold office in or exercise any of the powers assigned to either of the other two branches except as otherwise provided in this Constitution…” This principle was reaffirmed in Re Broderick (2000) 41 LLR 263.

Jedah vs. Horace (1916) 1 LLR 265; determined that only the Judicial Branch has authority to exercise judicial powers, any other branch of government which tries to do so is in not complying with the Constitution and the separation of powers is an absolute requirement and must be observed. This ruling clarified that superintendents of counties, territories and districts, being executive officers, cannot exercise judicial functions.98 In Karmo vs. Morris (1919) 2 LLR 317 at 328, the Court ruled that “It is utterly inadmissible that the Legislature can confer judicial power upon any but the courts…” and “It is the whole judicial power of the Republic which the Legislature must, under the constitution, vest in the courts. Its duty in this connection is mandatory and not discretionary. It has only to be ascertained whether a question or a function partakes of a judicial character to decide whether such question or function appertains solely to the jurisdiction of the court” (p. 332).

Finally, in Posum vs. Pardee (1935) 4 LLR 299, the Court stated, “We have to reiterate, therefore, the opinion so often expressed by our predecessors that all executive officers who attempt to exercise judicial functions are committing usurpations on the constitutional powers of the courts; and any recognition or cognizance given to such officials in the exercise of judicial functions by judges or members of the legal profession is in violation of their constitutional oath”. 99 Further, in the same case, the court ruled that Proceedings of a Judicial character before a Clan Chief, and appealed to a Superintendent for review, are void because they attack judicial authority”.

While the Constitution of Liberia and multiple Supreme Court decisions are quite clear on the separation of judicial and executive powers, and grant judicial authority exclusively to the judiciary, and administrative authority to executive ministries and agencies, customary authorities perform both judicial and executive/administrative functions and their actions are regulated by Executive Law and the Ministry of Internal Affairs rather than the judiciary. The Executive Law states that the Minister of Internal Affairs has the authority to “manage tribal affairs in all matters arising out of tribal relationships, draft rules, regulations for tribal government and courts, including fees allowable in such courts, and, administer the system of tribal courts”.100

The roots of this seeming contradiction are in the Act Creating the Department of Interior (currently the

Ministry of Internal Affairs in 1869, when the executive was granted authority to regulate native Liberians, and the judiciary statutory regulation of coastal communities settled by non-natives, and reconfirmed by the 1905 of the Act Providing for Government of Districts within the Republic, Inhabited by Aborigines”. This act created a native court system with potential appeals to a statutory judicial Quarterly Court.101 This power was upheld by a Supreme Court decision in 1907. However, the Supreme Court has also ruled that customary courts do not have jurisdiction to hear and decide cases over which the judiciary has authority. Rawls (2011) notes that “Since under the Constitution the judiciary has jurisdiction over all legal disputes, the customary courts are left with jurisdiction only over matters that have no cause for action – for example insult or violation of a local regulation such as a non-member of a secret society viewing society activities.”102

The Law Reform Commission notes that:

The legal framework governing the dual justice system is full of gaps and ambiguities and is in need of revision. For example, there is a lack of clarity as to whether the Hinterland Regulations remain legally in force, but they are still relied on by executive officials and chiefs, despite the fact that they contain several anachronistic provisions.103

Gap and Recommendation:

 One approach to address the dilemma of mixing executive and judicial functions, which has been implemented in Sierra Leone, is to have chiefs become court administrators and handle the convening of cases and third parties, recording outcomes and keeping records; and having elders and other community members serve as the direct dispute resolution service providers. Another approach would be to move the customary courts currently overseen by the Ministry of Internal Affairs under the formal judicial system.

The Dual Legal System and Jurisdiction of Customary Law, Courts, Procedures and Authorities Article 66 of the Liberian Constitution states that the “The Supreme Court shall be final arbiter of constitutional issues and shall exercise final appellate jurisdiction in all cases whether emanating from courts of record, courts not of record, administrative agencies, autonomous agencies or any other authority, both as to law and fact except cases involving ambassadors, ministers, or cases in which a country is a party. In all such cases, the Supreme Court shall exercise original jurisdiction. The Legislature shall make no law nor create any exceptions as would deprive the Supreme Court of any of the powers granted herein”.

Article 65 of the Constitution prohibits Clan Courts from determining issues of law. The determination of only the facts of a case may however be considered as administrative in nature and exercisable by persons in the executive branch. (See Article 65, Constitution, and Art. 43 of the Hinterland Regulations.)

Customary leaders have legal authority to receive, handle and resolve disputes that are strictly traditional in nature, although there is a lack of clarity regarding what constitutes “traditional matters”. 128 The Supreme Court has acknowledged that customary courts may play a role in regulating the legal relations of members of customary communities in the context of inheritance disputes (Watson vs. Hare (1949) 10 LLR 58). In estate/probate cases, customary law allowing marriage to more than one wife will be recognized and applied in determining rights to inherit (Jartu vs. Konneh Estate (1950) 10 LLR 318; and Dixon vs. Ricks-Fleming (1984) 32 LLR 134.

Over past years, the powers of customary authorities and their courts have been diminished by the government. Jurisdiction is conferred by (statutory) law, not the consent of the parties. Without Jurisdiction, rulings are illegal and unenforceable (Nah vs. Judge Topor (1998) LLR 144, 39, 1998).

Customary authorities do not have jurisdiction over “crimes in which blood is spilled, armed robbery, or rape cases in which physical violence is used, the victim is a child, or the perpetrator is a stranger” (Case

Progression: Paramount Chiefs, n.d.) 129 Even though persons may consent to have a Clan or Paramount Chief decide a criminal or other matter, his/her consent does not give the chief legal jurisdiction to do so.

(1935). Also see Barbu, J. “An Analysis of the Formal Legal Framework Governing Customary Law in the Republic of Liberia,” sec. II D (i) (Submitted to the United States Institute of Peace, 2009).

  1. Case Progression: Paramount Chiefs and the Tribal Governor’s Courts Structure. p. 15.

  2. Ibid, p. 100

Gap and Recommendation:

 In the recent past, the country has been in the process finalizing a policy to allow plea-bargaining in Circuit Courts, but not in lower ones. Participants in the National Conference on Enhancing Access to Justice recommended that chiefs be able to engage pre-trial conferences of minor criminal cases, accept guilty pleas, and once recognized and accepted to facilitate an agreement on restitution and conciliation. The process would be considered an administrative review and a resultant plea-bargain under Article 65, with relaxed requirements for evidence and standards of proof. However, courts would have the authority to review outcomes and either accept or overturn them.

If authorized to do so, categories of offenses customary authorities can handle will need to be defined as well as consequences allowed to be imposed for wrong doing.

The Dual Legal System and Contradictory Statutory and Customary Laws and Practices

Another example of a gap between the dual legal systems is how each handles, addresses and resolves specific kinds of issues covered by statutory or customary law. For example, in the formal legal system disputes related to children born out of wedlock are addressed in an adversarial manner. In the customary system, there is an emphasis on reconciliation between concerned parties with a goal of assuring care for the child and preventing and avoiding future conflicts.

Another example of a legal gap relates to legal provisions for marriage under statutory and customary law. Under the Domestic Relations Law of Liberia, marriage is only allowed between two people. The statutory Penal Code of Liberia defines marriage to more than one partner as polygamy. However, Customary Law on Marriage in Liberia and tradition allow men to have multiple wives.

The Law Reform Commission (LRC) and the Legal Working Group (LWG) are in the process of developing recommendations to harmonize roles, responsibilities of statutory and customary institutions and laws.

Gap and Recommendation:

  • The work of the LRC and the LWG to clarify and make recommendations on institutional roles and responsibilities and harmonize statutory and customary law should be continued. The government should approve the recommendations, as appropriate, in as expeditious and timely manner as possible.

Consistency of Customary Law

Customary law varies significantly from community to community. Some concerned parties advocate codification while others documentation. Codification will likely be resisted by customary authorities, limit the flexibility of customary law and its application, which is one of its strengths, and be difficult to achieve within the near future given the diversity of laws that are being applied.

Gap and Recommendation:

  • Initiatives should be taken by the Government, the Council of Traditional Chiefs and Elders and other authorities to document and write down customary law, dispute resolution guidelines, rationales and practices.104 Having records of past decisions and standards can provide more guidance to customary authorities and assist them in moving toward more common approaches for handling similar cases. Additionally, documentation of customary law can help statutory courts more effectively apply customary law in appropriate cases. Finally, documentation could be used as the basis for discussions by customary leaders at regular conferences, to build consensus on how to on how customary laws should be modified to address changing circumstances and move over time to more standardization.

Utilization and Mandates for Non-judicial Dispute Resolution Mechanisms and Procedures other than those provided by Customary Authorities or Non-governmental Organizations

The Liberia Code of Laws Revised, Volume 1 Title 1, Chapter 24, Trial by Referee; and the same text Chapter 64, Arbitration, allows disputing parties to utilize either a referee and/or an arbitrator to reach a judgment when use of one of the procedures is mutually acceptable. These dispute resolution mechanisms and procedures are considered as quasi-judicial and are supervised by the Courts. Decisions resulting from these procedures are recognized and upheld by Courts if there is no fraud or other violations of Civil Procedure Law.

For Trial by Referee, the intermediary must be a practicing attorney.105 For an arbitration proceeding, the arbitrator(s) does not need to be a lawyer.106

Gap and Recommendation

  • Use of referees and arbitrators to resolve disputes covered by statutory law is not as frequent as it could be. Increased education of parties and their legal representatives about these procedures, as well as greater encouragement by courts to use them, could increase usage and help lower the caseload burden on courts.

Assistance to Disempowered and Marginalized Groups

Parties who are disempowered or marginalized often lack resources – knowledge, expertise or financial – to effectively advocate for their interests in the resolution of disputes. In the judiciary there is a Public Defense System that provides legal assistance to indigents in criminal cases, but not civil disputes.

In non-judicial dispute resolution procedures, these parties can draw upon the assistance and expertise of some civil society legal aid providers, government agencies and international organizations. Staff members of Liberia Land Commission’s Land Coordination Centers and the Norwegian Refugee Council provide information and assistance to parties involved in land disputes. The Carter Center and Catholic Justice and Peace Commission also provide legal aid.

Gaps and Recommendations:

  • Any new non-judicial dispute resolution initiative needs to consider how disempowered or marginalized groups will be able to secure legal advice and assistance – both in customary and statutory law and procedures – to that they will be able to effectively and competently participate in a voluntary resolution process.

  • Consideration should be given to establishing government supported legal services, either through a government agency or by subsidizing civil society providers.

Gender Equality, Treatment of Women, Children’s’ Rights and Treatment of Minorities or Strangers

In most communities in Liberia, customary law does not give women the same rights as men. Equal rights are granted under statutory law. A variety of observers have noted that customary authorities may not comply with national law and recognize women’s rights in either their non-binding recommendations or mediated settlements. Similar experiences of unequal treatment have been claimed by youth advocates, members of minorities and strangers. It will be important to identify how serious these perceptions or claims are.

Gaps and Recommendations:

  • In 2009, the Legal Working Group (LWG) recommended that empirical studies should be conducted on the extent of gender-bias and children/minors experience in customary dispute resolution.107 A similar study should be conducted on experiences of minorities and strangers. The literature did not indicate whether these studies have been conducted.

  • Additionally, the MOJ may want to set up an expedited legal review process for outcomes of customary procedures that specifically involve women’s, juvenile or minority issues. The focus of the review could either be triggered by contested cases, those where there are multiple appeals or could be conducted on a cross section of cases from different locales or customary dispute providers to determine if there is any structural bias in outcomes.

Movement of Cases between Customary and Statutory Judicial Dispute Resolution Systems and Appeals

The Liberian Constitution gives the statutory courts of Liberia authority to “apply both statutory and customary laws in accordance with the standards enacted by the Legislature”108 Additionally, the Court will enforce customary law where not repugnant to the plain rules of equity and justice (Manney vs. Money 2 LLR 618)109

As noted earlier, a party may seek state judicial intervention if: 1) the statutory court system has jurisdiction over the matter in dispute; 2) the Supreme Court of Liberia has original jurisdiction, and the issue is strictly a constitutional matter; 3) he or she does not accept, refuses to use or is dissatisfied with the customary justice system, its mechanisms or an outcome; or 4) he or she believes that his or her statutory rights have been denied or abused by the customary justice system, which may occur in the context of either a civil case or a customary authority’s inappropriate involvement in a criminal suit.110

There does not, however, appear to be a formal process for moving a case and making an appeal from the customary justice system to the statutory court system. The literature and comments at the National Conference on Enhancing Access to Justice indicate that it is not always clear to customary authorities or disputing parties when and how a dispute can be moved from the customary to the statutory court system.

Additionally, when a case is moved from a customary to a statutory court, the dispute resolution process must begin anew, with a totally new hearing by the appropriate level of statutory court for the issue in question. Customary authorities generally conduct their proceedings orally, with few if any written records. As such, there is no written documentation for a statutory court to review. This makes it difficult for a court to assess the validity of evidence presented and used in deliberations, customary law applied, the rationale and logic that guided outcomes, and the fairness of prior proceedings.

Participants in the National Conference on Enhancing Access to Justice unanimously recommended that cases that were unsatisfactorily addressed at the Paramount Chiefs’ Court should be appealable to a special division of the Magisterial Courts with authority to only handle customary matters. Subsequent appeals, if needed, could be made to a Special Division of the Circuit Courts, or the Supreme Court when it addresses traditional issues.111

If an issue in dispute concerns traditional matters, government statutory courts may refer the case to a customary dispute resolution mechanism or authority under the jurisdiction of the Ministry of Internal Affairs. On occasion, judges and courts may informally advise parties to a conflict to seek resolution through a non-judicial dispute resolution mechanism, even though the Court has jurisdiction over the matter. However, this is an informal process, not legally mandated by law and can be implemented only if all parties agree to the process.

Gap and Recommendation:

 Enabling legislation is needed that defines procedures for the appeal of a dispute from a customary dispute resolution mechanism and procedure to a statutory Court, Clarification may also be needed by customary authorities and users of customary mechanisms regarding which statutory courts have jurisdiction to hear specific kinds of cases. Information about procedures needs to be widely disseminated.

The Legal Status of Voluntary Agreements or Third Party Decisions reached through Nonjudicial Dispute Resolution Mechanisms and Procedures

Participants engaging in voluntary dispute resolution procedures such as unassisted negotiations or thirdparty facilitated procedures often are concerned about and want to know whether their agreement is, “legal”, and, if necessary, would be recognized and enforceable under law and in a court. The answer is perhaps. The defining factor is whether agreements between parties have been intended to be and are formulated as a contract.

The Constitution of Liberia, Chapter III, Article 25 provides for the obligation of contract to be guaranteed, and that no law shall impair such rights. Agreements – either verbal or written – that are made between two or more parties may become contracts if they specify: 1) their intent to enter into a binding legal contract; 2) that the parties are competent, understand the issues to be addressed in the contract, and have the authority and capacity make a legal agreement; 3) it is entered into voluntarily, and 4) offers made by each party and the essential terms have been unqualifiedly accepted by the other(s); and 5) the agreement does not violate a law. Additionally, a contact generally specifies what will and will not occur, what will be exchanged, the individual and joint obligations of the parties, and may also proscribe what will be done in the event of non-compliance.

Additionally, voluntary agreement reached by parties concerning disputes that have been filed and are before a Court, and about which it has yet to rule, may be presented to the Court as stipulated agreement. As long as there is no fraud, misrepresentation, coercion, and other voidable acts, the Court may recognize the agreement and give it the standing of a judicial decision.

Another question is whether a decision made by a third party – a referee, arbitrator or customary authority – that is voluntarily accepted by disputing parties, has legal standing. Generally, decisions made by referees or arbitrators are binding on involved parties and have legal standing if that was the intent of the disputants when voluntarily entering the process.

Non-compliance with a binding decision by a referee or arbitrator can be taken to a court for enforcement. In general, courts uphold referees or arbitrators’ decisions and defer to their judgments as long as the award directly addresses the parties’ issues, disputants entered into the process voluntarily and agreed prior to beginning the procedure to make the third party their decision maker. Challenging and overturning a referee’s or arbitrator’s decision is generally not easy, but can be done. If the third party had an undisclosed relationship with one or more of the parties that could or clearly compromised his or her neutrality; biased his or her views toward parties, issues in question or outcomes; or corruption was involved, an arbitrated decision may be voided by a court.

The standing of customary authorities’ non-binding recommendations or decisions accepted by disputing parties is much less clear. While customary authorities may also be able to make administrative or quasijudicial decisions on issues in dispute, it is not clear if these have the same standing as ones made by a court. Until this issue is clarified, it appears that their decisions do not have formal legal standing until they are appealed and decided by a statutory court.

Gap and Recommendation:

 The Government needs to clarify the legal status of voluntary agreements reached by disputants through voluntary processes, such negotiation and mediation, with or without the assistance of a third party, and especially the legal status and standing of decisions made by customary authorities.

Review of Agreements reached through Non-judicial Procedures

A question has been raised by some disputants, lawyers and judges regarding whether agreements reached through voluntary non-judicial dispute resolution procedures provided by customary authorities or civil society groups, could or should be reviewed to assure that they are congruent or comply with national laws and legal standards and/or international covenants and agreements. While there is judicial review if a case is transferred from a customary or civil society mechanism to a formal court, it might be desirable to have an alternative expedited review process that could be initiated by individual disputants or by the judiciary to provide oversight concerning how specific cases have been handled and resolved, and how the settlement of specific cases are congruent with the settlement of similar ones.

Gap and Recommendation:

 The Ministry of Justice and the Judiciary should consider whether an expedited review process is desirable and feasible. If so, a number of procedural options might be considered. One judge interviewed by this study indicated that a body at the Circuit Court level might be given this function.

Recording and Records of Non-judicial Dispute Resolution Mechanisms and Procedures

Recording and record keeping of agreements is a major weakness of most, but not all non-judicial mechanisms and procedures. Chiefs, a number of whom are illiterate or do not have clerks, often do not keep any record of agreements reached in their proceedings. INGOs do much better in this area and provide each disputant with a copy of any negotiated or mediated agreement, often give another copy to the local customary authority that may or may not have been involved in the dispute resolution effort, and keep one copy with the organization. Copies are generally signed, marked or thumb-printed by involved parties and often a photo is taken of the parties and the agreement at the time of settlement.

Generally, if disputants want to memorialize their agreement they can either register relevant documents with the National Archives of Liberia, or, in the case of a will, seek probate. Probate is conducted in the Probate Court. Registration of the particulars of the court’s decision can also made at the National Archives. Following these procedures makes agreements binding and enforceable. Later access to the document at the Archives is fairly easy and can be obtained by filing an application to the Director of National Archives.

The Liberian Land Commission’s Land Coordination Centers (LCCs) are working with customary, civil society and INGOs to promote written agreements. LCCs are also serving as repositories for copies of agreements so that there is a future record of land-related settlements. Similar provisions might be made for outcomes of non-land-related cases.

Gaps and Recommendations:

  • There is a need to secure and train individuals who can serve as clerks for customary leaders, and record and keep records of negotiated or mediated agreements or third-party decisions.

  • Parties to disputes need to be informed about available procedures for formalizing and registering agreements.

Promoting Compliance and Enforcement of Non-judicial Dispute Resolution Mechanisms and Procedures

There is evidence that there is a relatively high rate of compliance to terms of voluntary agreements. The NRC’s ICLA Project, which has the most comprehensive data on settlements and compliance with voluntary agreements, found that according to both disputing parties between 80-90% of the cases where ICLA had intervened have remained resolved several years after its intermediary service was provided. Conversely, about 12% of parties report that one or the other side of the dispute violated at least some portion of the MOU [Memorandum of Understanding].112 This result, at least for the NRC, indicates that there may not be as much of a gap in compliance as might have been feared.

Anecdotal information on compliance with agreements and/or decisions reached through customary processes indicates that in these cases too, there seems to be a significant rate of compliance. In communities, the status of the chief, parties’ promises made in front of the intermediary and the other party or parties that puts the disputants’ honor and reputation on the line, promises before members of parties’ community whose respect they value and do not want to lose, and peer pressure from fellow community members to follow-through on dispute resolution outcomes seem to induce a high level of compliance.113 However, in spite of high rates of compliance to voluntary agreements, there is a need to clarify the legal standing of these settlements and how they might or can be enforced if there is noncompliance.

Ayad vs. Dennis (1974) 23 LLR 165, clarified that “generally the power to compel obedience to orders by a judgment or fine or imprisonment is a purely judicial one which cannot be conferred upon administrative agencies except by the Constitution itself.” A question to be addressed is whether voluntary agreements reached with or without the assistance of a third party or decisions by customary authorities can be enforced by courts, and if so, what criteria and procedures might be applied when doing so.

Gap and Recommendation:

 While there is some information on voluntary compliance with negotiated or mediated agreements, or those reached with the assistance of customary authorities, more needs to be learned on this topic. A future study could examine compliance rates; if there is lack of compliance, why this was the case; identify methods to encourage voluntary compliance; and, if necessary, enforcement mechanisms and procedures that are likely to be effective.

Attitudes of Lawyers and the Judiciary toward Non-judicial Dispute Resolution

The literature review did not identify any studies specifically focused on the attitudes of members of the legal community - lawyers and judges – toward either supporting or opposing the use of non-judicial mechanisms and procedures for resolving disputes. In general, it can be assumed that any concerns that are likely to be raised will focus on disputes covered by statutory law as opposed to customary law, as this is the major arena in which these parties work.

In other countries, members of the bar have often been concerned about case leakage from their legal practices and loss of income if many disputes are processed using non-judicial dispute resolution mechanisms, and whether non-lawyers providing these services is the unauthorized practice of law. To address these concerns, government agencies initiating alternative mechanisms have often put a cap on the monetary value of cases that can be handled by these procedures. (However, eventually many nonjudicial procedures have become so successful in resolving disputes, that the monetary ceiling has often been significantly raised.)

Government agencies have also passed legislation that clarify that the provision of non-judicial dispute resolution is not the unauthorized practice of law, and define what non-lawyer service providers can and cannot do, such as drafting Memorandums of Understanding but not formal contracts. They have also encouraged disputants, as appropriate, to secure legal review of agreements prior to their finalization.

One way that has been use to gain support of the bar for non-judicial dispute resolution procedures is to train its members in their use so that they can offer clients a broader choice of mechanisms and services to resolve disputes. Lawyers in many countries now offer mediation or arbitration as procedural options.

Members of the judiciary in many countries strongly support the use of non-judicial dispute resolution procedures. In fact, many jurisdictions require parties to utilize mediation first to try and reach a voluntary settlement before their case will be heard by a judge. Where these rules have been implemented, there has often been a dramatic increase of voluntary settlements and a decline in court case loads. Supportive judges see these procedures as a way to efficiently and amicably settle disputes, promote community cohesion and address a frequently overwhelming burden of court cases.

Concerns by judges about non-judicial dispute resolution generally focus on whether appropriate laws and standards are being applied when parties either negotiate or mediate a voluntary agreement, or a decision is rendered by a referee, arbitrator or customary authority. Additionally, judges are commonly concerned about whether the dispute resolution process is transparent and fair; and that agreements reached, decisions made or compliance required are secured without coercion. Many of these concerns can be addressed through education and training of providers of non-judicial dispute resolution services.

Gaps and Recommendations:

  • A study needs to be conducted on the attitudes of members of the bar and judiciary toward the use of non-judicial dispute resolution procedures, and if they have concerns about its use how they might be addressed.

  • Research should be conducted on the types and content of substantive and procedural training needed or required for providers of non-judicial dispute resolution services to assure that they assist parties to reach agreements that conform to national and international standards and utilize procedures that are transparent, fair and free from coercion.

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