Thursday, July 1, 2010

Applying Alternative Dispute Resolution Within Communities. -A speech presented at the Alternative dispute resolution forum of the United Nations Association of Guyana and the Guyana Association of Women Lawyers June 30 2010. rs

Applying Alternative Dispute Resolution Within Communities.

By Abiola Inniss LLB, LLM (Business Law) ACIArb.

In 1976 at the Pound Conference of the United States of America Supreme Court Chief Justice Warren Burger as he then was, on the subject of finding a better way declared ” We may well be on our way to a society overrun by hordes of lawyers, hungry as locusts, and brigades of judges in numbers never before contemplated. We have reached the point where our systems of justice—both state and federal—may literally break down before the end of the century .” This was a key point in advocating the use of ADR in the United States which was widely touted at the time as an alternative to the formal system of justice then in place. From the seventies to present there have been many projects implemented all across the United States with varying degrees of success from which valued lessons we may derive some wisdom on the subject of applying ADR in communities. We will also take a look at the success of ADR in Singapore (with specific reference to community ADR). Singapore is a developing country with some conditions to which we in Guyana may easily relate as far as concerns some aspects of culture, family life and day to day living; and in which ADR has been widely implemented, heavily monitored and regulated as part of the management of access to justice, and the overhaul of the formal justice system.
I am not aware that the Honourable Chancellor Mr. Carl Singh has expressed sentiments similar to those of the then US Supreme Court Chief Justice Warren Burger, but recent years have seen mediation being heavily propounded as the choice form of Alternative Dispute Resolution which it is hoped will result in a more efficient Justice system in Guyana, the particular idea is that it will reduce the backlog of cases in the court system. The evidence from around the world however suggests that mediation by itself will not solve the problem of a backlog and that all the forms of ADR must be used, I make particular reference to Singapore which implemented a plan which saw a backlog of cases numbered at 2059 awaiting trial dates in 1991 reduced to 175 in 1993 while appeals were reduced from 275 in 1991 to 71 in 1993 ( see The report of the 12th conference of Chief Justices of Asia and the Pacific by CJ Chan Sek keong of Singapore 17th May 2007).
Under this plan all of the ADR methods including councils of elders in certain ethnic communities were used and community ADR was and still is especially important in the efficient working of a modern justice system.
There should be little doubt at this time as to what constitutes ADR , but in spite of the enthusiasm which we all possess for this discipline ( for it is a discipline) and the burning optimism that it is a better way, we need to ask and answer the question asked by the public; alternative to what? Alternative dispute resolution is often heavily marketed as a viable parallel system to the normative system of justice but where it is not attached to any formal system of enforcement it is often perceived as being unable to provide the same level of stability as the formal system of justice which we know. In other words, if it isn’t court connected it’s just idle talk. For this reason it is often not regarded as a serious dispute resolution mechanism, especially at this time in Guyana where there is an entrenched adversarial approach by the majority of citizens. In my experience, it is only where both parties are immediately cognizant of some kind of loss or severe inconvenience to themselves that they would accept an invitation to mediate or to discuss any issue in dispute. A writ of summons usually obtains an almost immediate response after which people are more inclined to sit down and talk about their problems. In the prevailing environment a writ of summons opens the door to ADR, rather than ADR having the preferred place of the writ of summons. Reasons for this lack of interest or perhaps this selective enthusiasm may be that there has not been enough publicity about the process (in this case mediation which is currently available at the mediation center) and not much evidence is available that in its current operations, it is really working to reduce the present backlog in the Guyana courts by the actual settlement of disputes.
If we the proponents of ADR are to effectively present it to the community and in communities as a real alternative to the beleaguered court system, it must in reality be done in reference to the legal system. Alternative Dispute resolution may be regarded as an extended form of equity which allows disputants the opportunity in a less formalized and stressful environment to have a say in the outcome of their problems. Just as Equity tempered the common law by the creation of an humane approach to dispensing justice, just so Alternative Dispute Resolution may be expressed as an offspring of its concept of justice which does not merely apply fastidious rules but takes into consideration the human condition and the need for flexibility in dealing with this reality. It allows for greater creativity in solutions, affords an opportunity for relationships to be mended, and for animosity to be replaced with cordiality. It therefore does not stand alone as a rival of the normative system of justice but is really a close relative without whose input the family becomes dysfunctional. (see ADR: The New Equity by Thomas O.Main
University of Cincinnati Law Review, Vol. 74, pp. 329-404, 2005)



The challenge then for Community based ADR proponents is to craft a system of alternative dispute resolution which will be understood to be part of an entire system of justice dispensation, even where it is not connected to the court system. There must be the perception of a singleness of purpose and that purpose must be the efficient equitable dispensation of justice for all citizens, using all forms available, and in conformity with the laws of the land. ADR practitioners must be sufficiently knowledgeable of the law to be able to recognize an illegality and to let the parties know of it. In the history of this country we will find many instances of the use of traditional dispute settlement which involved village elders and village councils , resort to the law was left for last or in cases where it was felt to be the best option in the circumstances. The idea of resolving matters outside a court room in an orderly, law abiding manner is therefore not unknown in this society.
The idea of establishing what may be called Community Justice Centres may arguably be described as an extension of this practice and may serve to cement the idea of citizens helping themselves to solve their problems.
The temptation exists at this stage of our venture into ADR in Guyana for pockets of perhaps well meaning groups to establish operations in mediation and other areas across the country in an ad hoc manner, there is much evidence globally which forewarns such an approach (see Institutionalizing Community Mediation: Can Dispute Resolution “of, by, and for the People” Long Endure by Timothy Hedeen
Originally published in the Penn State Law Review, Volume 108, Number 1, Summer 2003 in which he discusses the rise and fall of grassroot ADR groups). Competing methods, varying standards of organization and training, fee structures and general aims can wreak havoc and compound matters for the same court system for which it is claimed to be an alternative. Some theories of Alternative Dispute Resolution describe the alternative to mean ‘a parallel, citizen-run and community-centered dispute resolution system. (Timothy Hedeen & Patrick G. Coy, Community Mediation and the Court System: The Ties that Bind, 17 MEDIATION Q. 351, 352 (2000).)
However to attempt to adhere to this in the purest sense requires a disconnection from the Justice system of the country, which is not sustainable and will result in the eventual collapse of the parallel system. It is better to construct a collective programme for Community Justice centres which has a set of central goals which are concurrent with those of the central administration of justice.
From the experiences of the United States we may find the following objectives useful in the establishment of Community Justice Centres.
The San Francisco Community Board carried these objectives:
1. Address disputes before they enter the formal legal system
2. Prevent and deescalate conflicts
3. Use conciliatory mechanisms as a vehicle for addressing the relationship between disputing parties
4. Strengthen the capacity of neighborhood, church, organization, school, and social service organizations to address conflict effectively
5. Strengthen the role of citizens in the exercise of their democratic responsibilities
6. Use community support to recruit volunteers as diverse as the neighborhoods served and to solicit appropriate conflicts and issues.

Other aims for neighbourhood justice centres are:
1. Diverting cases from the court caseload,
2. Providing a more appropriate process for selected types of cases,
3. Providing more efficient and accessible services to citizens,
4. Reducing case processing costs to the justice system.
These so called neighbourhood justice centres or community ADR centres upon establishment , need to make use of the range of ADR techniques if they are to be effective. The reason is that there are any varieties of circumstances which will require different approaches. Conciliation, mediation, mediation in conjunction with negotiation and arbitration and of course referral to the police and court system will need to be part of the functioning of such an entity. The diehards who hold fast to the ADR as being a parallel system in which citizens seek parallel justice may object to this; but must be reminded that this paper proposes the use of ADR as an extension of Equity and a part of a cumulative system of justice dispensation.
This approach has worked in Singapore where the report of the Community Mediation Scheme ( see Community mediation in Singapore By Gloria Lim ,Manager Community mediation Unit ADR division , Ministry of Law)
gives some guidance as to what issues may be successfully mediated in the Community. These are some of the listed issues:
Disputes involving neighbours
Quarrels between neighbours;
(b) Nuisance complaints;
(c) Common corridor obstruction complaints;
(d) Complaints regarding littering in the common corridors;
(e) Noise pollution complaints; and
(f) Leakage/Water seepage problems

1. Family Disputes especially pertaining to the care of the elderly and the very young and the sharing of family spaces.
2. Landlord and Tenant Disputes-distraining for rents, issues of easements and rights of way
3. Other Social/Relational Disputes such as borrowing and lending money,
4. Disputes and squabbles between vendors and shop owners
5. Relational problems between employer and employee or amongst colleagues.
All of these issues may be placed within various category of the law in order to establish rights and wrongdoings, but were effectively dispensed with through ADR.

These kinds of issues permeate the Magistrates Courts in Guyana and so can be easily identified as being ripe for Community ADR.
The creation of community ADR systems which are well structured, have defined, identifiable goals, stability and integrity, will require careful, expert planning and collaboration with the current system of Justice. Evaluations of key elements in the Justice sector will have to be made, beginning with which sectors have the greatest immediate need for ADR interventions. One may wish to begin by evaluation the need for ADR in family disputes, which interventions may help people to avoid some of the catastrophic consequences in relationships which we read about almost daily in the newspapers. There might then be an expansion to include the other relational issues described before, and then matters which deal with commerce and trade. The method which is used and how much is done will depend on the funding available and who the funders are , with this in mind we need to remember the old saying,” he who pays the piper calls the tune.” It is important that correlating values between the funders and the funded must be established..
It is without question that the Guyanese society is in dire need of means of promoting peace and justice and that the tools are available by which we can significantly impact the lives of our people. A carefully thought out, intelligent approach to this system will garner greater results than all the world’s enthusiasm with misdirected energy and resources. It is up to us as the advocates of this daughter of Equity to see that she is properly established, aptly represented and adequately distributed for the benefit of all Guyanese.

1 comment: