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Linking to more formal systems

If an outcome is backed by people with authority, compliance to this outcome will be stimulated.

What challenges does it focus on?

Have the outcome backed up by people with authority. This stimulates compliance. People feel important people are watching over their shoulder. Enforcement by court is made more easy.

Short summary

Linking processes for dispute resolution to more formal legal systems is an important step to ensure that outcomes are complied to. To do this a facilitator say that they:

  • Make sure that outcomes are written down
  • Involve authority figures from the community, judiciary or government. These might be a village chief, local police head or a judge. These figures can ratify the outcome. This can be done with a signature, stamp, letter head, etc.
  • Make sure that outcomes do not contradict laws and human rights. If possible, refer to charter, law, right that they are consistent with.
  • Ensure registration of agreements in a place that allows easy retrieval (see tool 20).
  • Lobby for structural linkages between informal and formal dispute resolution
  • Assist parties in accessing the formal system and presenting the information related the dispute to the decision-maker.
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Research evidence

 Evidence from practice

  • Collaboration with courts: In the judicial facilitators system in Nicaragua, facilitators are helpers of local judges. The facilitators (paralegals) write down the agreements in a notebook. Regularly, the facilitator shows the notebook to the judge. So the judge oversees the quality of the agreements, and adds legitimacy to them.
  • Collaboration with authorities: In each of the commune dispute committees that operate in 56 communes in Cambodia, one of the members is a policeman. Also in other countries dispute resolution providers collaborate with the local authorities to increase pressure.
  • Informal courts that are recognised by the formal system: In Rwanda the Abunzi courts consist of lay people as judges who make decisions in the first instance. These decisions are recognised to be legally binding. In Indonesia, KBH mediators keep records from the mediation and have signed agreements which are respected by local police.
  • Appeal possible from informal court to formal court: To oppose decisions of the Abunzi courts in Rwanda and village courts in Papua New Guinea appeal is possible at the formal court.
  • Formalising agreements; In many countries including the Netherlands a agremeent that has been reached in mediation can be formalised by a signature of a judge.

Evidence from literature

Recognition

Minimum principles for recognition of informal processes might be:

  • An impartial facilitator, with no perceived or apparent conflict of interests unless consented to by all the participants a process that is clearly articulated
  • participants and all professional support persons and advisers have been fully informed about the process before it commences
  • A separate intake and assessment process with each side and their respective advisers/supporters before the process commences
  • Agreements regarding confidentiality over information provided during the process and the outcome (so that disputants clearly understand their confidentiality obligations and the status of any information they provide)
  • Confidentiality in relation to any information revealed about third parties, unless the person to whom the information relates consents to it being made public
  • No coercion or intended manipulation of the participants by the practitioner to achieve a particular outcome
  • Where the process is a facilitative one, ensuring that the participants are given the opportunity to tell their own story, hear the other person’s story and to meet separately with the practitioner in a private session
  • Where the process is an advisory one, the practitioner must hold the necessary professional qualifications in relation to any advice given during the process, and
  • Where the process is a binding determinative one, rules of procedural fairness apply unless expressly waived in writing by all the participants after the practitioner has explained the implications of waiving them.

Alternative Dispute Resolution in the Civil Justice System, NADRAC Issues Paper March 2009

Mediation is not selling itself as an informal alternative to court, but rather emphasizing its formality and similarity to court, for instance that it uses a regulated procedure, agreements are based on law and recognised by the court.

Reforming the People's Mediation System In Urban China, Aaron Halegua, Hong Kong Law Journal, 2005


Linking tribal courts and the formal system in Afghanistan.

There are a number of steps that can be taken to tie together sub-national court systems with the national level systems that could provide a complementary system that meets the needs of the people and provides dispute resolution at all levels in Afghanistan.

These steps include:

  • Clear lines of jurisdiction: Not only should there be clear geographic jurisdictional boundaries, sub-national courts (such as tribal courts) should have the authority, within the overall system, to arbitrate local issues, such as property disputes. Issues such as capital crimes (murder, etc.) should be handled only within the formal system. Jurisdictional bounds should also place limits on potential judgments and sentences.
  • Vetting of court officials: There have been cases resolved by “tribal elders” that have, after the fact, found to be made by those presuming to be the “power brokers” in a certain area. Local courts should be established by the true leaders – and vetted as the true authorities for dispute resolution.
  • Formalized filing of decisions: All decisions made by courts at all levels should be recorded and filed; informal decisions should still be available for reference after decisions are rendered.
  • Appellate processes: Within certain parameters (such as timeliness or a sub-national court exceeding jurisdictional authority), there should be provision for appealing lower level decisions at higher levels.
  • Linkage of Courts, Cops, and Corrections – and the Law: Within the broader context of the “rule of law,” sub-national courts should also have explicit structural linkages to executive authorities (cops and police) and to the correctional systems. The basis for decision rendered – formal written or tribal law and traditions – should be clearly understood by those subject to their decisions.

Reflection of dr.Jack on the Cobined Arms Center Blog: http://usacac.leavenworth.army.mil/blog/blogs/reflectionsfromfront/archive/2010/03/10/afghan-courts-linking-tribal-systems-to-national-system.aspx

Best practices