Monday, January 23, 2012

Alternative Dispute Resolution in the Caribbean: a cultural conundrum-Excerpts from a Guest lecture given at DePauw University, Indiana ,USA , 11/10/2011

Thank you for the opportunity of speaking to you on a subject that has been of great interest to me and of great importance to the peoples of the Caribbean region.
I know that when many people think of the Caribbean, the immediate images of islands surrounded by sand and sea bathed in sunshine fun and frolic come to mind; that is what we see on TV By extension the exotic jungles of the South America in particular my native land Guyana , the only English speaking country on the continent of South America, may also capture the imagination as a paradise of the kind propagated in the movie Tarzan, very little is known about the cultural intricacies of the region in Western civilization outside of international organizations such as The United Nations and so the substantive issues of community life and conflict ,and of necessity conflict resolution make for a fascinating and important study.

For the purpose of my discourse, I am confined to the fifteen countries which are members of Caricom the formal name of which is the Caribbean Community and which are English speaking with the exception of Suriname and Haiti which are associate members. For further information you may log on to Caricom.org .In order to grasp the concept of this cultural conundrum as I have chosen to call it, we have to take a brief look at the legal system in the region. The English speaking Caribbean inherited much of its cultural norms and its legal system from the British colonizers, so that just like the United States, it has a common law system which is a direct descendant of the English common law system and some of the countries still have close ties to the British since they retain the Privy council as their final court of appeal, others have opted to have the newly created Caribbean Court of Justice as their final Court of Appeal. The history of the region however carries major contributions from the Dutch, Spanish, French and Portuguese as all these super powers from the fifteenth century and onwards colonized all the countries at some point or other and have left significant residue of their legal system in several cases, Guyana for example retains the Dutch land law system and St Lucia, a mixture of French civil law and English common law. The formal resolution of disputes has been rooted in the court system and it is only recently (within the past ten years or so) that widespread recognition has been given to alternative dispute resolution as a formal means of resolving issues. I have used the term ‘formal means of resolving issues’ because ADR is only now receiving official recognition by some countries as a valid means of resolving disputes alongside of the legal system and in many instances as a court connected measure. This is true in countries such as the Cayman Islands, Trinidad, Guyana, Barbados and Jamaica, other countries in the region. The civilization of the Caribbean region was however, created by several different means, first there were the indigenous peoples called Amerindians, then with European colonization there came slavery, which took Africans to the region, and this was followed by Indentureship of natives of Portugal, China and India through formal agreement with their governments and was a paid arrangement to get workers for sugar and rice plantations and other crops. These peoples brought their culture and traditions, their problems and disputes as well as their means of settling disputes. These were termed informal means of dispute resolution, since they did not receive state sanction and were largely ignored as a creole cultural idea which had little to do with the proper regulation of society. These mechanisms thrived in the post slavery period where village elders would be called upon to settle disputes as a panel, or in Amerindian communities, the tribal chief would preside over a matter, headmasters and postmasters were also considered important and respectable persons in whom confidence could be reposed to settle matters. These could range from family disputes to street vending, to livestock and other issues related to common tenancy. In the cities where other issues, such as noise, common rights of way and landlord and tenant problems arose, church leaders were called upon to act as arbiters or mediators as necessary, this was even further delineated by the separate cultural norms of the people who came, the Chinese had their own methods for their internal disputes, the Indians would use the Hindu priest, the Muslims would have the head of the Mosque, Africans would have their religious elders . Caribbean civilization and culture from its inception has always had some form of dispute resolution which has been indigenous to its different populations. Modern times however saw the westernization of ideas which deemed cultural forms of dispute resolution to be old fashioned and saw a heavy dependence on the court system.
We now come to some of the current problems in the areas of society for which alternative dispute resolution may have some answers.
As a result of the westernization of ideas and the dependence on the courts to settle all disputes there has been tremendous overburdening of the justice system. And this is discussed in the article on Restorative justice which deals of course with criminal matters
Crime and the punishment of it has had a standard form regionally with some variations in the form of the application of the death penalty or life imprisonment for serious and heinous crimes, but within the usual schemata of imprisonment or fining (determinate sentencing) for wrongdoing. World trends today suggest that some developed countries as well as developing ones are pressed by the necessity to find alternatives to the traditional scheme of justice dispensation.
This is not simply the result of the musings of well-paid researchers whose sociological theories, however abstract, manage to find favour with the aspiring intellectual elite in governments and so are visited upon the unsuspecting populace who have little means of extricating themselves. The fact is that criminal law has always struggled to balance the issuance of punishment with the offence, as can be seen throughout the development of the common law as it has sought to adjust with the changing times.
A simple example of this would be the constant complaints that we hear about the sentences given in the courts both at the superior and magisterial levels; someone may be found guilty of causing death by dangerous driving and is made to pay a sizeable fine with a short term of imprisonment or no imprisonment at all, while another is found guilty of manslaughter for carelessly or recklessly operating a piece of heavy machinery which causes the death of another and is given a custodial sentence.
The reader may well be challenged to a round of the “spot the difference” game and lengthy arguments may be made on the technical differences engendered in the wrongs on the basis of judicial precedent, but the lack of uniformity in the dispensation of justice remains comfortably seated in its corner minding its own business in the company of aging ineffectual law and order.
One reason for this is that the punishment is subjective in nature and based on retribution and not correction, it therefore means that it will be interpreted and administered according to the consideration of several factors including the personal perspective of the individual judge, though he or she follows and interprets the law. This discretion is so wide ranging that the anomaly is experienced across the sentencing stratum.

Next we turn to civil matters
A cinematic view of community life in any Caribbean nation would reveal a culture which contains a mixture of stereotypes, prejudices, superstitions and beliefs which often compound the issues of what justice is and what is expected of it in the mind of the average citizen. For example , it is common perception that a woman ‘s birthright is the home and that this right is absolute, her physical right is unquestionable while in her home , however if she is violated in any way while outside her home , perceptions tend to vary as to whether the violations were of her own making or whether she contributed to it by being outside her home( see Caribbean legal educator, Hazel Thompson Ahye-‘ Women and Family law and related issues ‘ for further discussion). This idea among others has extended from the grassroot levels to the Halls of Justice, with consequences ranging from the interesting to the appalling. Mediation comes into the Justice system as a means of tempering the dispensing of justice according to fixed principles and judicial discretions and gives disputants the power to discuss their problems under professional guidance and to come to a resolution of their own making. It also gives a means of hearing to those affected by prejudice and other forms of unreasoned or unreasonable thinking, so that a path to common understanding might be laid. It has been found that parties retain a high level of loyalty to their settlements when reached in this way and that there is better opportunity of conciliation afterwards. The obvious advantage is that there is less burden on the courts to deal with petty matters which often permeate the Magistrates courts and which could be dealt with by mediation. Issues of common corridor littering, noise nuisance, market vending disputes, family disputes concerning common dwelling and other similar problems can be addressed in this manner. The overall benefit to the system of Justice is that the municipal courts are freer to deal with more jurisprudentially substantial issues and that a culture of peaceful resolution is recognized at all levels of the society. The economic side of justice dispensation internationally also favours the use of ADR very strongly and the current trend across Europe with the budget cuts has made it imperative for Governments to find other means of addressing the resolution of disputes. In United Kingdom the Government announced proposals to close 54 County courts and 103 Magistrates courts in order to save some 15.3 million Pounds Sterling in annual operational costs. The Courts Minister Jonathan Djanogly is quoted as saying,” Not all disputes need to be resolved in court . I want to explore whether more people can resolve their disputes in a way that leads to faster and more satisfactory solutions.” Lord Woolf FCIArb,the architect of the major reform of the UK Justice system which lead to new Civil procedure rules in 1998 is also quoted as saying, “ The availability and use of mediation is always important but the present financial situation has made its use, whenever possible, essential. No one can afford to ignore the benefits it offers.” In the Caribbean, Guyana recently passed the Mediation Bill which among other things makes the use of Court connected mediation mandatory for some kinds of disputes. Experience has taught however that it sometimes requires more than the passing of legislation to create a new cultural norm .The application of the law may demand conformity from a party to it but does not translate to wide cultural acceptance of an idea and many examples of this abound worldwide, the ongoing debate over the US case of Roe V Wade ,410 U.S. 113 (1973) points out this idiosyncrasy. There needs to be region wide promotion of the concept of alternative dispute resolution and the particular use of mediation in the court systems and in the communities.
The Dispute Resolution Foundation of Jamaica has continuously proved the worth of ADR for more than a decade in resolving gang issues, community disputes , landlord and tenant and a wide range of issues using mediation, negotiation and conciliation, and is in many ways the leading change agents in the region for ADR. And so we come to the conundrum ; since the Caribbean region has had a strong history of ADR, why has it moved so slowly to embrace ADR as a family member? It may be suggested that ADR as it is now promoted is based on western values and cultural ideas which are foreign to the culture in spite of westernization, and that variations will need to be developed to accommodate the cultural needs of the individuals who approach conflict resolution providers for help.

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