Alternative Dispute Resolution Guide

ALTERNATIVE DISPUTE RESOLUTIONPRACTITIONERS GUIDE

CONTENTS

I. Introduction: Purposes and Use of the Guide 1

II. Key Observations 3

III. What is ADR? 4

IV. What Can ADR Do? 7

V. The Limitations of ADR 21

VI. What Background Conditions Are Important? 24

VII. What Program Design Considerations Are Important? 33

VIII. Conclusion 48

Appendix A -- Taxonomy of ADR Models from the Developed and Developing WorldAppendix B -- Case StudiesAppendix C -- Research MethodologyAppendix D -- Working Bibliography of LiteratureAppendix E -- Dispute Resolution Institutional Problems;

DR/ADR Solutions and Conditions for Success

ACKNOWLEDGEMENTS

About CMG

Conflict Management Group (CMG) is dedicated to improving the methods of negotiation, conflictresolution, and cooperative decision-making as applied to issues of public concern. Public conflictsand ineffective means for dealing with them lead to wasted resources, social instability, reducedinvestment, chronic underdevelopment, and loss of life. CMG believes that good negotiation, jointproblem-solving, facilitation, and dispute management skills can help those with differing interests,values, and cultures cope more effectively with their differences. CMG is an international non-profit organization. It is engaged in the training of negotiators, consulting, diagnostic research,process design, conflict analysis, facilitation, consensus-building, and mediation. CMG alsofacilitates the building of institutions for the prevention and ongoing management of conflicts.CMG is non-partisan and takes no stand on the substantive issues of a dispute.

About the Authors

Scott BrownSince 1996, Scott Brown has been the Dean of the William Jewett Tucker Foundation, the firstendowed deanship at Dartmouth College. Prior to his appointment as dean, he was the Presidentand Executive Director of Conflict Management Group from 1992–1996. From 1986–1992, Mr.Brown was the Associate Director of the Harvard Negotiation Project at Harvard Law School.Mr. Brown is co-author of Getting Together, Building Relationships While You Negotiate, andhas published more than a dozen articles or book chapters on negotiation and conflict resolution.He was educated at Dartmouth College and Harvard Law School.

Christine CervenakChristine Cervenak is trained as a lawyer and is a mediator with the Harvard Negotiation Project.Ms. Cervenak has professional negotiation experience in international law and policy, havingworked as an Attorney-Advisor with the State Department’s Office of the Legal Advisor (1987–1990) and as the Legal Officer for the UN’s (UNRWA’s) operations in the West Bank (1990–1992). Ms. Cervenak has published on human rights, refugee law, and international peaceoperations. She was the Human Rights visiting fellow at Harvard Law School from 1992–1993,and was educated at the University of Notre Dame, UCLA School of Law, and the GraduateInstitute of International Studies in Geneva, Switzerland.

David FairmanDavid Fairman is a Senior Associate at the Consensus Building Institute, a Cambridge-basednon-profit organization. He specializes in the development of negotiation and consensusbuilding training courses for public and non-profit organizations. In collaboration with theNetherlands-based Sustainability Challenge Foundation, Mr. Fairman trains developing countrypolicy-makers to integrate and balance environmental, economic, and social goals indevelopment projects and policies. Mr. Fairman is currently completing his Ph.D. in politicalscience at MIT and received his B.A. from Harvard in 1987.

Introduction: Purposes and Use of the Guide 1

Part I

Introduction: Purposes and Use of theGuide

During the past decade, USAID hassupported programs throughout the world tofacilitate the development of legal systems andpromote civil society. They seek to stabilizedeveloping societies and facilitate economicdevelopment by strengthening civil structures,improving access to justice, and reformingjudicial systems.

USAID's work in promoting the rule oflaw in developing and transitional societies overthe last decade has led to an interest in the use ofalternative dispute resolution, or "ADR."Several reasons underlie this interest. ADR istouted as more efficient and effective than thecourts in providing justice, especially incountries in which the judiciary has lost the trustand respect of the citizens. Moreover, ADR isseen as a means to increase access to justice forpopulations that cannot or will not use the courtsystem, to address conflicts in culturallyappropriate ways, and to maintain social peace.

With the spread of ADR programs in thedeveloped and developing world, creative usesfor and designs of ADR systems areproliferating. Successful programs areimproving the lives of individuals and meetingbroad societal goals. There is a critical mass ofADR experience, revealing important lessons asto whether, when, and how to implement ADRprojects.

Drawing on this experience, this Guideis intended to provide an introduction to thebroad range of systems that operate under therubric of ADR. It is designed to explore andclarify the potential uses and benefits of ADR

and the conditions under which ADR programscan succeed. It is written to help projectdesigners decide whether and when toimplement ADR programs in the context of ruleof law assistance or other developmentinitiatives. The Guide is also explicit about thelimitations of ADR programs, especially wherethey may be ineffective or evencounterproductive in serving some developmentgoals.

With the caveat that data systematicallyevaluating ADR programs both in the UnitedStates and abroad is hard to find, we believevalid conclusions can be drawn from theevidence we have been able to collect andreview, as well as from CMG's and our advisoryteam's experience designing and managing ADRprograms around the world.1 It is important tonote that the primary focus of the Guide (andtherefore of the research) is on the uses of ADRrelated to the rule of law; other applications ofADR are discussed but not as thoroughlyexplored.

1 CMG's Advisory Group of ADR and conflictmanagement experts includes Professors Frank Sanderand David Smith of Harvard Law School; RobertRicigliano, CMG Executive Director; Diana Chigas,CMG Regional Director; and Antonia Handler Chayes,CMG Senior Advisor. The Group was called upon toprovide advice at key points in the project. Their role,as well as the composition and role of others on theCMG project team, are described in Appendix C.

2 Introduction: Purposes and Use of Guide

This Guide reflects a broad review ofEnglish and Spanish language ADR literaturepertaining to developing world experience.Relevant documents are summarized in theWorking Bibliography, Appendix D. The Guidealso incorporates key observations in the courseof field assessments in Bangladesh, Bolivia,South Africa, Sri Lanka, and Ukraine, which aremore fully described in the case studies, atAppendix B. A more detailed description ofour research methodology is contained inAppendix C. A Taxonomy of ADR at AppendixA provides definitions of key terms and aframework for understanding the basic andhybrid ADR systems that have emerged. Thematrix found in Appendix E highlights centralissues relevant to dispute resolution andpotential solutions.

* * *

Key Observations 3

Part II

Key Observations

Highlighted below are a number of the keyobservations that are explored in greater depth inthis Guide.

n ADR programs cannot be a substitute for aformal judicial system. ADR programs areinstruments for the application of equity, ratherthan the rule of law, and as such cannot beexpected to establish legal precedent orimplement changes in legal and social norms.However, ADR programs can complement andsupport judicial reforms.

n ADR programs can increase access to justicefor social groups that are not adequately or fairlyserved by the judicial system— they can alsoreduce cost and time to resolve disputes andincrease disputants' satisfaction with outcomes.

n When courts are systematically biasedagainst women, ADR may be able to improvewomen's access to justice, especially whendiscrimination against women inherent in localnorms or traditional dispute resolutionmechanisms can be overcome in the new ADRmechanism.

n ADR programs can support not only rule oflaw objectives, but also other developmentobjectives, such as economic development,development of a civil society, and support fordisadvantaged groups, by facilitating theresolution of disputes that are impeding progresstoward these objectives.

n Before developing an ADR program, it iscritical to determine whether ADR is appropriatefor meeting development objectives, or whetherestablishment of rights, strengthening of the ruleof law, and/or creating a more even balance ofpower among potential users should precede theuse of ADR.

n If ADR is appropriate in principle, programdesigners must assess background conditions toensure that ADR will be feasible in practice.These include political support, institutional andcultural fit, human and financial resources, andpower parity among potential users.

n If ADR appears feasible, program designersshould ensure that the ADR program meets keypreparation criteria— needs assessment andidentification of goals, participatory designprocess, adequate legal foundation, and effectivelocal partner.

n In addition to meeting preparation criteria,program designers should also ensure that theADR program meets implementation criteria—effective selection, training and supervision ofADR providers, financial support, outreach,effective case selection and management, andprogram evaluation procedures.

* * *

What Is ADR? 4

Part III

What Is ADR?

The term "alternative dispute resolution"or "ADR" is often used to describe a widevariety of dispute resolution mechanisms thatare short of, or alternative to, full-scale courtprocesses. The term can refer to everythingfrom facilitated settlement negotiations in whichdisputants are encouraged to negotiate directlywith each other prior to some other legalprocess, to arbitration systems or minitrials thatlook and feel very much like a courtroomprocess. Processes designed to managecommunity tension or facilitate communitydevelopment issues can also be included withinthe rubric of ADR. ADR systems may begenerally categorized as negotiation,conciliation/mediation, or arbitration systems.

Negotiation systems create a structure toencourage and facilitate direct negotiationbetween parties to a dispute, without theintervention of a third party. Mediation andconciliation systems are very similar in that theyinterject a third party between the disputants,either to mediate a specific dispute or toreconcile their relationship. Mediators andconciliators may simply facilitatecommunication, or may help direct and structurea settlement, but they do not have the authorityto decide or rule on a settlement. Arbitrationsystems authorize a third party to decide how adispute should be resolved.

It is important to distinguish betweenbinding and non-binding forms of ADR.Negotiation, mediation, and conciliationprograms are non-binding, and depend on thewillingness of the parties to reach a voluntaryagreement. Arbitration programs may be eitherbinding or non-binding. Binding arbitration

produces a third party decision that thedisputants must follow even if they disagreewith the result, much like a judicial decision.Non-binding arbitration produces a third partydecision that the parties may reject.

It is also important to distinguishbetween mandatory processes and voluntaryprocesses. Some judicial systems requirelitigants to negotiate, conciliate, mediate, orarbitrate prior to court action. ADR processesmay also be required as part of a priorcontractual agreement between parties. Involuntary processes, submission of a dispute toan ADR process depends entirely on the will ofthe parties.

These forms of ADR, and a variety ofhybrids, are described in more detail inAppendix A: Taxonomy of ADR Models fromthe Developed and Developing World. TheGuide uses the general term, ADR, whenreferring to conditions or programs that mayaffect or include various types of ADR, but willrefer to particular types of ADR— negotiation,conciliation, mediation, or arbitration—whenever possible.

5 What Is ADR?

A. A Brief History of ADR 2

Dispute resolution outside of courts isnot new; societies world-over have long usednon-judicial, indigenous methods to resolveconflicts. What is new is the extensivepromotion and proliferation of ADR models,wider use of court-connected ADR, and theincreasing use of ADR as a tool to realize goalsbroader than the settlement of specific disputes.

The ADR movement in the UnitedStates was launched in the 1970s, beginning as asocial movement to resolve community-widecivil rights disputes through mediation, and as alegal movement to address increased delay andexpense in litigation arising from an over-crowded court system. Ever since, the legalADR movement in the United States has grownrapidly, and has evolved from experimentationto institutionalization with the support of theAmerican Bar Association, academics, courts,the U.S. Congress and state governments. Forexample, in response to the 1990 Civil JusticeReform Act requiring all U.S. federal districtcourts to develop a plan to reduce cost and delayin civil litigation, most district courts haveauthorized or established some form of ADR.Innovations in ADR models, expansion ofgovernment-mandated, court-based ADR in stateand federal systems, and increased interest inADR by disputants has made the United Statesthe richest source of experience in court-connected ADR.

While the court-connected ADRmovement flourished in the U.S. legal

2 This history is drawn from a number of sources,including: Stephen B. Goldberg, Frank E.A. Sander,Nancy H. Rogers, Dispute Resolution: Negotiation,Mediation and Other Processes (2d ed., Little Brownand Co., New York: 1992), pp. 3-12; and ElizabethPlapinger and Donna Stienstra, ADR andSettlements in the Federal District Courts: ASourcebook for Judges and Lawyers (Federal JudicialCenter and CPR Institute for Dispute Resolution:1996), pp. 3-13.

community, other ADR advocates saw the use ofADR methods outside the court system as ameans to generate solutions to complexproblems that would better meet the needs ofdisputants and their communities, reducereliance on the legal system, strengthen localcivic institutions, preserve disputants'relationships, and teach alternatives to violenceor litigation for dispute settlement. In 1976, theSan Francisco Community Boards program wasestablished to further such goals. Thisexperiment has spawned a variety ofcommunity-based ADR projects, such as school-based peer mediation programs andneighborhood justice centers.

In the 1980s, demand for ADR in thecommercial sector began to grow as part of aneffort to find more efficient and effectivealternatives to litigation. Since this time, the useof private arbitration, mediation and other formsof ADR in the business setting has risendramatically, accompanied by an explosion inthe number of private firms offering ADRservices.

The move from experimentation toinstitutionalization in the ADR field has alsoaffected U.S. administrative rule-making andfederal litigation practice. Laws now in placeauthorize and encourage agencies to usenegotiation and other forms of ADR in rule-making, public consultation, and administrativedispute resolution.

Internationally, the ADR movement hasalso taken off in both developed and developingcountries. ADR models may be straight-forwardimports of processes found in the United Statesor hybrid experiments mixing ADR models withelements of traditional dispute resolution. ADRprocesses are being implemented to meet a widerange of social, legal, commercial, and politicalgoals. In the developing world, a number ofcountries are engaging in the ADR experiment,including Argentina, Bangladesh, Bolivia,Colombia, Ecuador, the Philippines, SouthAfrica, Sri Lanka, Ukraine, and Uruguay. The

What is ADR? 6

experience of many of these countries providesimportant lessons drawn upon in this Guide.

B. The Characteristics of ADRApproaches

Although the characteristics ofnegotiated settlement, conciliation, mediation,arbitration, and other forms of communityjustice vary, all share a few common elements ofdistinction from the formal judicial structure.These elements permit them to addressdevelopment objectives in a manner differentfrom judicial systems.

1) Informality

Most fundamentally, ADR processes areless formal than judicial processes. In mostcases, the rules of procedure are flexible,without formal pleadings, extensive writtendocumentation, or rules of evidence. Thisinformality is appealing and important forincreasing access to dispute resolution for partsof the population who may be intimidated by orunable to participate in more formal systems. Itis also important for reducing the delay and costof dispute resolution. Most systems operatewithout formal representation.

2) Application of Equity

Equally important, ADR programs areinstruments for the application of equity ratherthan the rule of law. Each case is decided by athird party, or negotiated between disputantsthemselves, based on principles and terms thatseem equitable in the particular case, rather thanon uniformly applied legal standards. ADRsystems cannot be expected to establish legalprecedent or implement changes in legal andsocial norms. ADR systems tend to achieveefficient settlements at the expense of consistentand uniform justice.

In societies where large parts of thepopulation do not receive any real measure of

justice under the formal legal system, thedrawbacks of an informal approach to justicemay not cause significant concern. Furthermore,the overall system of justice can mitigate theproblems by ensuring that disputants haverecourse to formal legal protections if the resultof the informal system is unfair, and bymonitoring the outcomes of the informal systemto test for consistency and fairness.

3) Direct Participation andCommunication between Disputants

Other characteristics of ADR systemsinclude more direct participation by thedisputants in the process and in designingsettlements, more direct dialogue andopportunity for reconciliation betweendisputants, potentially higher levels ofconfidentiality since public records are nottypically kept, more flexibility in designingcreative settlements, less power to subpoenainformation, and less direct power ofenforcement.

The impact of these characteristics is notclear, even in the United States where ADRsystems have been used and studied moreextensively than in most developing countries.Many argue, however, that compliance andsatisfaction with negotiated and mediatedsettlements exceed those measures for court-ordered decisions. The participation ofdisputants in the settlement decision, theopportunity for reconciliation, and the flexibilityin settlement design seem to be important factorsin the higher reported rates of compliance andsatisfaction.

* * *

What Can ADR Do? Goals and Possible Uses of ADR 7

Part IV

What Can ADR Do? Goals and PossibleUses of ADR

ADR systems may be designed to meeta wide variety of different goals. Some of thesegoals are directly related to improving theadministration of justice and the settlement ofparticular disputes. Some, however, are relatedto other development objectives, such aseconomic restructuring, or the management oftensions and conflicts in communities. Forinstance, developing an efficient, consensualway to resolve land disputes may be critical toan AID mission not because of its commitmentto strengthening the rule of law, but becauseland disputes threaten the social and economicstability of the country. Likewise, efficientdispute resolution procedures may be critical toeconomic development objectives where courtdelays or corruption inhibit foreign investmentand economic restructuring.

Within the context of rule of lawinitiatives, ADR programs can:

•Support and complement courtreform

•By-pass ineffective and discreditedcourts

• Increase popular satisfaction withdispute resolution

• Increase access to justice fordisadvantaged groups

•Reduce delay in the resolution ofdisputes

•Reduce the cost of resolving disputes

In the context of other developmentobjectives, ADR programs can:

• Increase civic engagement and createpublic processes to facilitateeconomic restructuring and othersocial change

• Help reduce the level of tensionand conflict in a community

• Manage disputes and conflicts thatmay directly impair developmentinitiatives

Experience suggests that ADR programscan have a positive impact on each of thesedevelopment objectives, although the extent ofthe impact is very much dependent on otherconditions within the country and the fit of thedesign and implementation of the program withthe development objectives. (See the table,"Developing an ADR Program," page 50.)

The following matrix matches thegeneral ADR systems with the purposes anddevelopment objectives to which they are bestsuited. Although any one ADR system can bedesigned in a variety of ways, this matrix mayprovide general guidance on which ADR modelto choose.

8 What Can ADR Do? Goals and Possible Uses of ADR

COMPARING ADR AND COURT PROCEDURES:HOW LIKELY ARE THEY TO ACHIEVE DISPUTANTS' GOALS?

Disputant's Goals ADR Procedures Court Procedure

Mediation/Conciliation

Non-BindingArbitration

BindingArbitration

Adjudication

Minimize Costs 3 2 1 0

Resolve Quickly 2 2 3 0

Maintain Privacy 2 2 2 0

MaintainRelationships 3 2 1 0

InvolveConstituencies 3 1 1 0

Link Issues 3 1 1 0

Get Neutral Opinion 0 3 3 3

Set Precedent 0 0 1 3

Key:3 = Highly likely to satisfy goal2 = Likely to satisfy goal1 = Unlikely to satisfy goal0 = Highly unlikely to satisfy goal

This table is intended to give a general sense of the relative advantages of different dispute resolutionprocedures under a wide range of conditions. The likelihood that a procedure will satisfy a goal in agiven case depends on the details of its design, the skill and perceived legitimacy of the dispute resolutionprovider, and the behavior and beliefs of the disputants.

Adapted from Frank Sander and Stephen Goldberg, "Fitting the Forum to the Fuss: A User-FriendlyGuide to Selecting an ADR Procedure, "Negotiation Journal, January 1994, pp. 49-68.


A. How can ADR help accomplishrule of law objectives?

1) ADR can support and complementcourt reform.

Use ADR when:

•Case backlog impairs courteffectiveness.

•Complex procedures impair courteffectiveness.

• Illiterate or poor cannot afford thecourts or manage their way withinthem.

•Small informal systems can betterreach geographically dispersedpopulation.

Do not use ADR when:

•The courts’ reputation is sufficientlytainted to suggest that independentprograms may enjoy more popularsupport.

ADR programs can support a missionobjective to reform the court system in severalways. ADR can be used by the judiciary to testand demonstrate new procedures that might laterbe extended to or integrated with existing courtprocedures. ADR systems can be created as anoption within the judicial system, eitherassociated with the courts as a way of managingexisting caseloads, or separate from the courts toprovide dispute resolution for conflicts orconstituencies not well served by the courts.

If the main problems with the courts arecomplex and inappropriate procedures, ratherthan institutional corruption or bias, ADRprograms can provide streamlined procedures toaccelerate case disposition. In some cases, theseprocedures may serve as models that can later beincorporated into formal court procedures. If so,court-annexed ADR may turn out to be acatalyst for more extensive court reform. Court-annexed ADR programs in Argentina,

Colombia, and Uruguay are evolving as anintegral part of programs for overall courtreform (Blair, et al. 1994; Blair and Hansen1994; see also McHugh 1996).

ADR programs can also be designed todeal with cases that could enter the court systembut may be resolved more efficiently (andperhaps with greater satisfaction) through ADRprocedures. In these cases, ADR programs cancomplement court reform by reducing caseloads.They can also complement court reform byincreasing access to dispute resolution servicesfor disadvantaged groups (e.g., urbanneighborhood and rural centers), providing legaladvice to members of disadvantaged groups onwhether and how to use the court system, and/ordealing with specialized cases that the courts arenot well-equipped to handle (e.g., complexcommercial disputes, labor-managementdisputes).

ADR Center as Dispute ClearinghouseIn Puerto Rico

The San Juan Dispute Resolution Center inPuerto Rico is an interesting model for using anADR service center to increase access to disputeresolution systems by directing disputes toappropriate fora. The Center, which has beenoperating since 1983, acts as a clearinghouse forcomplaints, providing advice to users andreferrals to other agencies and courts, as well asmediation services for appropriate disputes. TheCenter provides more than 2000 referrals eachyear, and use of the Center has increasedregularly since its founding. The Center claimsto have had a significant impact on reducingcourt backlogs. Although the lack ofdocumentation of the Center precludes clearconclusions about its success, the concept ofusing a mediation center to assess cases, provideadvice, make referrals, and mediate appropriatedisputes is attractive for reaching poor anduneducated populations who may be intimidatedby formal court systems. (See Marques, 1994.)


2) ADR can by-pass ineffective ordiscredited courts.

Use ADR when:

• Working with or within the existingjudicial system is unlikely to beeffective or receive popular support.

• Complex or technical disputes can behandled more effectively byspecialized private ADR systems.


• Official opposition is sufficientlystrong and controlling to suppresscompeting programs. In these cases,links to the official judicial and legalsystem may be necessary for success.

When the civil court system has somany institutional weaknesses and failures(inadequate resources, corruption, systemic bias)that there is no near-term prospect of successfulcivil court reform, ADR programs may be anappropriate way to provide an alternative forum.

a. Justice for populations not well-served by the courts

In South Africa, India, and Bangladesh,ADR programs were developed to by-passcorrupt, biased, or otherwise discredited courtsystems that could not provide reasonable justicefor at least certain parts of the population(blacks, the poor, or women). In Sri Lanka, thereputation of the courts is relatively good, butthey were ineffective in resolving many localand small disputes because of high costs andlong delays. The Mediation Boards there haveevolved as a substitute for the courts, but enjoythe support of the judicial system. Bolivia,Haiti, Ecuador, and El Salvador are developingsystems involving government support forindependent, local, informal dispute resolutionpanels to serve parts of the population for whomthe courts are ineffective (Davis and Crohn,1996).

Some ADR programs function as theprimary institutions for resolving civil disputes,and have effectively replaced or preemptedcourts. Taiwan and China have the bestexamples of broadly and deeplyinstitutionalized, community-based ADR(Huang 1996; Jandt and Pedersen 1996b). Inboth countries, local government officials andwell-respected citizens act as conciliators,mediators, and arbitrators for the vast majorityof local disputes. Taiwan's ADR system appearsto be growing more popular over time, despitesocial changes that have begun to erodeConfucian norms of deference to local notables.

In China, there are now more than onemillion village-based People's Mediation Courts,which were created by the 1982 constitution.Participation in mediation is voluntary inprinciple and disputants can take their cases tocourt if mediation fails. The PMCs handle morethan seven million civil cases each year,including family disputes, inheritance issues,land claims, business disputes, and neighborconflicts. These ADR institutions have evolvednot as attempts to substitute for a failing courtsystem, but rather as an outgrowth of traditional,local institutions that have long functioned asalternatives to the civil courts.

b. Efficient and satisfactoryresolution in highly-technical,specialized areas

Specialized ADR programs focused onparticular types of technical or complex disputescan be more effective and produce bettersettlements than courts. In the United States,specialized ADR programs deal withconstruction, environmental, and patent disputes,among others. These programs act as substitutesfor the courts, which may not have the expertisenecessary to make the best decisions. Indeveloping countries, specialized ADRprograms for commercial disputes are beingtried in Uruguay, Thailand, Bolivia, andUkraine. Private labor-management ADR inSouth Africa has been so successful that thegovernment has adopted mediation and


arbitration as the primary mechanisms forresolving labor-management disputes.

c. Ethnically-based, public andfamily disputes

ADR programs may also be moreeffective than the courts for addressingparticular types of disputes, such as ethnicconflicts, public environmental disputes, orfamily disputes. In such cases, specificallydesigned ADR programs may create moreattractive alternatives to the courts even when

the courts are functioning reasonably well.National government agencies may developissue-specific ADR systems designed to precedeor parallel formal administrative hearings. Inthe Philippines, the Department of Environmentand Natural Resources has created provincialmulti-stakeholder committees to receive andresolve land claims by indigenous peoples(NRMP 1993). In Malaysia, nationalgovernment officials are being trained by theDepartment of National Affairs to manage inter-ethnic disputes that arise in the course of theirwork (Othman 1996).

ADR Moves From Outside to Inside Government in South Africa

The experience in South Africa indicates that ADR systems may be implemented initially as a substitutefor a poorly functioning formal dispute resolution system, but may later be adopted as part of awidespread reform process. Prior to and during the transition in government, many NGOs, financed bynumerous donors, undertook ADR efforts for a variety of purposes throughout South Africa. One of theearliest and most effective NGOs was the Independent Mediation Service of South Africa (IMSSA),which started in the early 1980's to focus on resolving labor-management disputes.

Later, the African Centre for the Constructive Resolution of Disputes (ACCORD), the Vuleka Trust, theCommunity Law Center, the Wilgespruit Fellowship Centre, the Community Dispute Resolution Trust(CDRT), the Institute for Multi-party Democracy (MPD), and the Community Peace Foundation (CPF),among others, implemented a variety of training, mediation, and community reconciliation programs tohelp manage community tension, resolve neighborhood disputes, train community leaders in negotiationand conflict management techniques, and establish neighborhood justice centers.

After the peaceful transition of power, the government saw these ADR programs as models for newgovernmental dispute management mechanisms. The Commission for Conciliation, Mediation, andArbitration (CCMA), established to resolve labor disputes, has been patterned after the success of IMSSA(and is directed by Charles Nupen, the founder and former president of IMSSA). The Department ofJustice is planning to establish local community courts, and to create a system of family mediation boardsto help resolve local and family disputes. The Department of Land Affairs has created the National LandReform Mediation Panel to help resolve disputed land claims. The Department of Public Works, theDepartment of Mineral Affairs, and several other national and state agencies are considering their owndispute resolution mechanisms.

Although many of the original NGOs are now struggling to adapt to a situation in which governmentagencies have taken on many of their responsibilities and have hired many of their experienced personnel,the impact of the NGO ADR community on the transitional government has been one of the mostimportant and lasting effects of the NGO programs.

Although the NGO programs were established initially to provide a substitute for ineffective, biased, andcorrupt government judicial structures, they became laboratories for a new national system of justice.The impact on social change of the variety of ADR programs, while difficult to measure, has beenimportant in South Africa. As Roelf Meyer, the lead National Party negotiator, noted at the end of thetransition negotiations, the success of those negotiations and the success of private ADR services helpedredirect the country from a culture of violence to a culture of negotiation. (See South Africa Case Study.)


3) ADR can increase satisfaction ofdisputants with outcomes.

Use ADR when:

•High cost, long delay, and limitedaccess undermine satisfaction withexisting judicial processes.

•Cultural norms emphasize theimportance of reconciliation andrelationships over "winning" indispute resolution.

•Considerations of equity indicate thatcreativity and flexibility are neededto produce outcomes satisfactory tothe parties.

•Low rates of compliance with courtjudgments (or a high rate ofenforcement actions) indicate a needfor systems that maximize thelikelihood of voluntary compliance.

•The legal system is not veryresponsive to local conditions orlocal conditions vary.


•Cultural norms suggest a preferencefor formal, deterministic solutions.

•Cultural norms are discriminatory orbiased and would be perpetuated inthe ADR system.

Although increasing the satisfaction ofdisputants is one of the development objectivesidentified by earlier USAID studies, usersatisfaction is often an indirect proxy for morefocused concerns such as cost, access, and delay.The impact of ADR programs on thesedevelopment objectives is addressed in othersections. Beyond these aspects, disputantsatisfaction is also affected by more subtlefactors, such as the creativity of outcomes, theimpact of the ADR process on the ongoingbusiness or personal relationships, and disputant

confidence that the system is responsive to theirneeds. ADR programs can have a positiveinfluence on all of these components ofdisputant satisfaction.

When evaluations of ADR systems haveincluded an assessment of overall usersatisfaction, the ADR systems have generallycompared favorably to formal legal structures.In Sri Lanka, for example, satisfaction with theMediation Board system is quite high. Inaddition to the accessibility of the system, andthe low cost, disputants indicate that the waythey are treated, the disputants' control of theprocess, and the community-based nature of thesystem are all factors leading to highsatisfaction. Satisfaction is also reflected in thesettlement and compliance rates. Nearly 65% ofall mediated cases are settled, and compliancerates, while not accurately measured, arereported to be quite high. The chairman of oneMediation Board indicated that compliance withdebtor dispute settlements, which constitute alarge proportion of the cases, is nearly 95%.The monthly caseload of the Boards more thandoubled between the first and third years ofoperation, indicating high satisfaction. (See SriLanka Case Study.)

Likewise, in Bangladesh, almost allusers indicate that they prefer mediation to theformal court system and would use themediation process again. In South Africa, usersof commercial labor-management mediation andarbitration cite the positive impact of ADR,relative to litigation, on ongoing labor-management relations. And throughoutSoutheast Asia, disputants cite a general culturalpreference for informal dispute resolutionbecause of its ability to help reconcile andpreserve personal and commercial relationships.(See Case Studies; Jandt and Pederson, 1996.)


In the United States, many users ofADR services cite the flexibility and creativityof the process, and note that the settlements aregenerally better for both parties than decisionsproduced through litigation. This advantage isreflected in the comments of users in Sri Lankaand Bangladesh who note the benefits of a localmediator who understands local conditions,knows the parties, and can help guide asettlement that fits the situation. (See CaseStudies.)

4) ADR programs can increase access tojustice for disadvantaged groups.

Use ADR when:

•Use of formal court systems requiresresources unavailable to sectors ofthe population.

•Formal court systems are biasedagainst women, minorities, or othergroups.

• Illiteracy prevents part of thepopulation from using formal courtsystems.

•Distance from the courts impairseffective use for rural populations.


•Disadvantaged groups need toestablish rights in order to reducepower imbalances.

•Local elites have the power to controlprogram implementation.

•A number of barriers to access to thejustice system can be addressedeffectively in an ADR program.

a. Reducing the cost to parties

Many poor are denied access simplybecause they cannot afford to pay theregistration and representation fees necessary toenter the formal legal system. Since cost isprobably the largest barrier to formal disputeresolution for many people in developing

countries, that issue is addressed separately inpart 6) below.

b. Reducing the formality of thelegal process

Several studies indicate that theformality of court systems intimidates anddiscourages use. In India and Bangladesh, forexample, the court requirement of legalrepresentation is both costly and intimidating forpeople who may not be comfortable interactingwith lawyers from a different caste or class. Inthese and other countries, users of ADRprograms have expressed a preference forsubmitting cases to mediators who are localresidents and understand the local community.In Sri Lanka, users expressed their satisfaction athaving their "stories" heard in an informalprocess. All of these factors contribute togreater usage of and preference for informalprocesses. (See Case Studies.)

c. Overcoming the barrier ofilliteracy

In some countries, access is effectivelydenied because the formal system requires alevel of literacy that many in the country do nothave. In these countries, the formal legalprocesses are especially intimidating for largenumbers of illiterate citizens. In Bangladesh, theMadaripur Legal Aid Association was originallyestablished to provide assistance andrepresentation for the poor and illiterate. Theirservices are now dominated by their mediationprogram, in part because they found mediationto be more effective and accessible for this partof the population. ADR programs can bedesigned to rely on oral representations. Oralagreements may be enforced by traditionalmeans of community peer pressure, eliminatingthe need for written documentation or formalenforcement mechanisms. (See BangladeshCase Study.)


d. Serving rural populations:reducing geographic dispersal ofcenters

Access may be impaired because thecourts are located far from the homes of thosewho need them. One advantage of ADRprograms is the ability to set them up withrelatively little cost to local communities. Thelok adalat ("people's court") system in Indiasucceeded in reaching a large part of thepopulation because they were located in villages(see Whitson, 1992). Similarly, the MediationBoards in Sri Lanka are distributed throughoutrural villages, as well as larger cities and towns.In China, more than one million People'sMediation Centers are located in villages andserve parts of the population that could noteasily reach existing courts (see Jandt andPederson, 1996).

e. Counteracting discrimination andbias in the system

When courts are systematically biasedagainst particular groups, such as minorities orwomen, ADR programs can sometimes helpprovide some measure of justice. InBangladesh, for example, women are oftenpoorly protected by the courts. The MLAAmediation program has recruited women to serveon mediation panels in the village mediationprogram. Women who have used the systembelieve that they receive better protection andmore compensation from this system than fromthe formal court system. (See Bangladesh CaseStudy.)

In many circumstances, however, ADRwill not improve access for discriminated-against populations and may, some argue, evenworsen their situation. Informal disputeresolution services may offer "second-class"justice to users, particularly minorities andwomen who may be subject to bias in ADRprograms as well as in the formal judicialsystem. Informal dispute resolution systems areineffective at changing policy and systemicinjustice since they deal with individual cases

and do not establish legal precedent. (SeeWhitson, 1992.) Where, as in Bangladesh, theADR program design is able to address the issueof bias through recruitment of minoritymediators and thorough training, justice can beimproved for these disadvantaged groups. (SeeBangladesh Case Study.)

f. Public outreach to increaseawareness of ADR

In some situations, the judicial system ornew ADR mechanisms may have changed inways that could increase access, but thedisadvantaged may be unaware of the changesbecause of inadequate public outreach. If one ofthe goals of the ADR program is to increaseaccess to justice for a particular targetpopulation, the program design must includeadequate means for reaching that population.Stating the goal is not sufficient, and in theabsence of specific design focus, there is a riskthat the system can be co-opted by elites. Forexample, one of the original goals of theColombian Conflict Resolution Project was toprovide low cost services to the disadvantaged.The client base of the Bogota Chamber ofCommerce, however, through which much ofthe program was managed, was comprised ofbusiness elites. The program became focusedmore on providing low cost services to smallbusinesses than to poor populations. Theoriginal design of the project omitted a cleardefinition of the target client population, andfailed to establish any goal for reaching thetarget population. This resulted in a failure tocreate any public outreach or publicity campaignto increase awareness and use of the servicesamong the poor. (See DPK Consulting,Colombia, 1996.)


5) ADR programs can reduce delay in theresolution of disputes.

Use ADR when:

•Delays are caused by complex formalprocedures.

•Court resources are insufficient tokeep up with case backlog.


•Official intervention will imposecomplex procedures on ADRprograms.

Delays are endemic in most courtsystems throughout the world and affect anumber of development objectives. In somecases, delays are so extreme that they effectivelydeny justice, particularly to disadvantagedgroups who may not be able to "grease thewheels" of the justice system. In other cases,delays in the resolution of commercial disputesimpair economic development and underminethe efficiency of the economy. Informal disputeresolution (mediation and settlement programs),or simplified procedures for dispute resolution(arbitration systems), can significantly reducedispute resolution delay, and indirectly reducecourt backlog by redirecting cases that wouldotherwise go to court.

Reduction of dispute resolution delaysmay serve a variety of USAID strategicobjectives outside the rule of law area. Forexample, in the Ukraine, support for mediationcenters is founded on the premise that mediationcan serve economic development objectives byaccelerating the resolution of commercial andlabor-management disputes, as well as othercivil disputes arising from the privatizationprocess. (See Ukraine Case Study.) In SouthAfrica, quick resolution of labor-managementdisputes serves both economic and social equityobjectives.

Delay Reduction: IMSSA in South Africa

The track record of IMSSA in South Africarepresents some of the best evidence for theability of ADR programs to reduce delay. Mostsimple cases of unfair dismissal or wage claimsrequire only a day of mediation or arbitration,while larger scale or more complex cases mayrequire 2-3 days. The government-runConciliation Boards, Industrial Councils, andIndustrial Courts operated by the apartheidgovernment experienced significant backlogs,with delays of up to five months just to get tothe Industrial Courts and appeals taking severalyears. A labor relations task force establishedby the new South African government in 1995found that the government-run structures werehampered by highly cumbersome and legalisticprocedures loaded with technicalities, along withpoor pay and poor training for mediators andadjudicators.

Conciliation Boards were successful in settlingonly 20% of their cases, and the IndustrialCouncils only 30%. In contrast, IMSSAmediators are successful in resolving roughly80% of their cases. User satisfaction is quitehigh, with repeat users accounting forapproximately 80% of cases. (See South AfricaCase Study.)

Many studies of developing countryADR systems offer evidence that the systemshave been effective in processing cases quickly,at least relative to traditional court systems. TheMediation Boards in Sri Lanka resolve 61% ofcases within 30 days and 94% within 90 days,compared with months or years required by thecourt system. Court backlog in Sri Lanka wasreduced by nearly 50% during the six years inwhich the Mediation Boards have operatedthere, although a direct empirical link has notbeen established. One judge in the Ukrainepredicted that 90% of civil court cases could besuccessfully mediated, eliminating the backlogon the civil court dockets. (See Sri Lanka andUkraine Case Studies, and Hansen, et al., 1994.)Studies of programs in China, India, Costa Rica,and Puerto Rico similarly indicate that ADR


systems have been successful in handling largenumbers of cases quickly and efficiently.However, studies showing that ADR systemsdeal with cases more quickly than the courtsoften do not address systematically the questionof whether cases resolved by ADR are similar toor different from cases resolved by the courts,which could explain some differences in time toresolution.

Experience in the United Statesindicates that ADR can have a significant impacton the time required to reach a resolution. Astudy conducted by the State Justice Institute atthe University of North Carolina compared casesassigned either to a mediated settlementconference (MSC) or directly to the superiorcourt. The MSC program reduced the medianfiling-to-disposition time in similarly contestedcases by about seven weeks, from 407 days to360 days. In addition, participants weresignificantly more satisfied with the process andthe outcomes of the MSC process than they werewith the normal court process. (See Clark, et al.,1995.)

Some studies in the United States,however, indicate that ADR programs attachedto the courts become burdened by the sameadministrative complexities and/or costs as thenormal litigation process. A recent controversialstudy by the RAND Corporation indicates thatfederal district court ADR programs(specifically, mediation and early neutralevaluation) have not been effective in provingthat ADR can reduce delays or costs associatedwith dispute resolution. (See Kakalik, et al.,1996.) Certain types of ADR, like arbitration,may be susceptible to becoming as complex andcostly as court litigation. Labor arbitration inthe United States has also become encumberedwith formal rules and regulations that limit itsability to operate efficiently. Delays in resolvingdisputes may increase when pilot or local ADRprograms are expanded, if human resources areinsufficient to handle the increased caseloadefficiently.

6) ADR programs can reduce the cost ofresolving disputes.

Use ADR when:

• High costs in the courts are driven byformal procedures or the requirementof legal representation.

• Court filing costs are high.• Court delays impose high costs on

parties.


•Official intervention will imposeformal procedures or costs on ADR.

Many ADR programs are designed witha goal of reducing the cost of resolving disputesboth to the disputants and to the disputeresolution system. Whether ADR fulfills thisgoal is still under discussion even in the UnitedStates, where there have been many studies ofthe issue. Nevertheless, the experience of atleast some of the ADR systems implemented indeveloping countries indicates that costreduction is a reasonable goal for ADR systems,and that well-designed systems can effectivelymeet this goal.

Relatively few comparative studies havebeen concluded, in part because of the lack ofdata on the true costs of court dispute resolution.Several studies, however, indicate dramaticdifferences in cost. For example, during the1980s, when the lok adalat system was operatingsuccessfully in India, a comparative study inRajasthan indicated that the average cost of acase handled in a lok adalat court was 38 rupees,compared with an average litigation cost of 955rupees. The primary reason for the difference incost was the simplicity of the system and thelack of need for legal representation, comparedwith the extreme complexity of the formal courtsystem and the requirement of expensiverepresentation. (See Whitson, 1992.)


Many other ADR programs seem to besuccessful in reducing the cost of disputeresolution and providing access to justice for thepoor. Most programs operate with only amodest fee, either because they are managed byvolunteers or because they are supported bygovernment or donor funds. In Sri Lanka, forexample, the cost of filing for mediation is only5 rupees, and the number of cases filed with theMediation Boards has increased from 13,280 in1991 to 101,639 in 1996. Almost all the casesinvolve disadvantaged and poor members of thepopulation. (See Sri Lanka Case Study.)

B. How can ADR help accomplishother development objectives?

Although this Guide focuses on ADR'sability to promote development objectivesrelated to the rule of law, ADR programs canalso help accomplish other developmentobjectives, as briefly discussed below.

1) ADR programs can preparecommunity leaders, increase civicengagement, and create publicprocesses to facilitate economicrestructuring and other social change.

Use ADR when:

• Initiatives are hindered by an absenceof participatory public processes tobuild support for and help managechange.

• Initiatives are hindered by a lownumber of trained leaders amongdisadvantaged group.


•Legal rights need to be established orenforced to reduce powerimbalances.

•Relationship between ADR and theformal legal system needs to be

clarified to reduce uncertainty aboutdispute resolution options.

• Change is needed quickly (the impactof ADR training and programming isincremental and long-term).

South Africa is an interesting, and inmany ways unique, example of the potentialimpact of dispute resolution and conflictmanagement systems on social structures. Anumber of ADR programs have been part of thesocial fabric in South Africa, both before andafter the transition in government. Manyobservers credit the example set by black laborunions in their negotiations with miningcompany management with demonstrating theability to work out differences between blacksand whites at the bargaining table. It was not acoincidence that the lead negotiator for theAfrican National Congress in the transition talkswas Cyril Ramaphosa, who had led negotiationsfor the miners unions.

South Africa: Labor ADR InfluencedOther Sectors

The experience of IMSSA itself demonstratesthe power of an effective ADR program in onesector to influence other sectors of thecommunity. When IMSSA began in the early1980’s, it focused exclusively on the labor sectorthrough its Industrial Dispute ResolutionService. As the reputation of the IMSSAmediators and arbitrators grew, other parts of thecommunity began to call on IMSSA to provideservices. As a result, IMSSA created theCommunity Conflict Resolution Service (CCRS)to help resolve community conflicts, includinginter-tribal violence in the taxi wars and disputesin schools. Later, it created the ProjectManagement Unit (PMU) to manage umbrelladonor grants intended to support communitydispute resolution services of all types. (SeeSouth Africa Case Study.)

Experience in other countries suggestssimilar usage of ADR to address a variety ofsocial change and development issues throughpublic processes in which facilitation and


mediation skill play a major role. In thePhilippines, conflict resolution processes arebeing used to manage land reform (COTRAIN1996), and in Ukraine, mediation training andfacilitators are helping to manage economicrestructuring issues in the mining and steelindustries. Past authoritarian governments inUkraine did not encourage public participationor public processes to develop consensualinitiatives or solutions to social problems.Mediation training in individual manufacturingenterprises is helping to develop an ethic of civicengagement that is not general in the society.(See Ukraine Case Study.)

The impact of ADR programs on socialchange is often felt through the increased skillsand abilities of local leaders. In South Africa,observers note that NGO-sponsored ADRprograms helped develop and train communityleaders. Many of those trained as part of ADRprograms have gone on to hold significantpositions in the post-apartheid government. TheADR training and experience helped build skillsin consensual approaches to problem-solvingand policy development. As a further sign of theimportance of the problem-solving andmanagement skills associated with ADRexperience, USAID and other internationaldonors have supported IMSSA's disputeresolution training of industry groups andcommunities, as well as its elections and

balloting project. USAID also gave IMSSAresponsibility for supervising an umbrella grantfor community-level dispute resolutionactivities. (See South Africa Case Study.)

Programs aimed at providing disputeresolution and problem-solving skills forgovernment leaders have been conducted in avariety of other transition countries, includingAngola (CMG and Search for Common Ground(Search), Rwanda (e.g., Search), and Russia(e.g., CMG, International Alert, InternationalResearch and Exchanges Board). Programshave also been developed to pursue specificdevelopment objectives. For example, theWorld Health Organization has recentlydeveloped a negotiation training program forhealth officials in developing countries to helpthem negotiate more effectively withinternational donors to obtain a larger share ofassistance for health care initiatives.

Like most capacity-building initiatives,ADR programs require a substantial amount oftime to have a significant impact on leadershipskills, the ethic of civic engagement, and publicproblem-solving processes. The significantimpact felt in South Africa evolved over adecade, and only with the support of a variety ofADR initiatives.

ADR and Economic Restructuring in Ukraine

One objective of the Ukraine Mediation Group (UMG) is the facilitation of privatization and economicrestructuring efforts. This work may involve mediation of specific disputes, but is more generallyconcerned with managing the process of negotiating change. (See the Ukraine Case Study.) UMG isworking with a British NGO, Know How, and the World Bank to assist with the restructuring of themining industry. An example of UMG work involved the negotiation of a charter to guide thedisbursement of World Bank credit to facilitate the closing or restructuring of mines. The initial charterproposed by the World Bank was unacceptable to the mining industry. UMG mediated among the partiesand helped draft an acceptable framework.

UMG has also established mediation training programs in large manufacturing plants to facilitate laborrelations and restructuring. The administration of one plant, the largest manufacturing company in thecountry, credits the program with averting a strike in March 1997.


2) ADR programs can reduce the level oftension and prevent conflict in acommunity.

Use ADR when:

•Ongoing structural conflicts heightenthe level of tension in or betweencommunities.

•Unresolved individual disputes addto the level of tension in society.

•Moderate ethnic or class conflict isfocused around particular issues.


•Group leaders will not negotiate untilthere are structural changes in thebalance of power between classes orethnic groups.

• Individual disputes cannot beresolved until some structural changetakes place.

ADR systems may be designed to havean impact on the level of social tension andlatent conflict, as well as on individual disputes.The focus of these systems is somewhatdifferent from the programs normally designedfor rule of law projects. For example, conflictprevention efforts generally focus more onpublic conflicts (ethnic tensions, resourceallocation, policy issues, etc.) rather than privatedisputes. They may also focus on publiceducation, early intervention in potentiallyexplosive conflict, and outside intervention bythird parties.

Many of the NGOs established topromote conflict management in South Africaprior to the transition of power were explicitlycreated with the goal of managing tension andfostering peaceful mechanisms for socialtransformation. Although many observersbelieve these efforts had a positive impact on theculture and contributed to the peacefultransition, the direct impact of these programson the overall level of violence and tension in

the community is difficult to assess.Nevertheless, other countries have undertakensimilar efforts to manage social tension. InCyprus, USAID through AMIDEAST and theFulbright Commission, has fostered thedevelopment of a variety of conflictmanagement efforts to reduce tension betweenthe Greek and Turkish Cypriot communities,including joint camps for youth, bi-communalarts events, and other bi-communal activitiesAlthough the level of tension remains high,these efforts have been credited by theinternational community with reducing thepotential for conflict.

Similar efforts to manage social tension,including ethnic and class conflict, are underwayin many other countries, including projects inEstonia (Carter Center with the University ofVirginia), Hungary (Project on Ethnic Relations,also known as PER), Slovakia (PER), Bosniaand Croatia (MercyCorps, Balkans PeaceProject), and Rwanda (Search, Council onForeign Relations). The evidence for managingconflict and tension around discrete policyissues, such as education policies (Foundationon Inter-Ethnic Relations) and land reform(Philippines Department of Environment andNatural Resources) is positive.

3) ADR programs can help manageconflicts that may directly impairdevelopment initiatives.

Use ADR when:

• Issue-specific disputes or conflictsimpede sectoral development efforts.


• No counter-indications.

When issue-specific disputes impairdevelopment progress, specifically designedADR programs may help. This is true forconflicts involving multiple or polarizedstakeholders with vested interests. In the MiddleEast, for example, water resource disputes are a


practical limit on economic development.Disputes over water are also the source ofinternational and intranational tension.Preliminary work in Jordan and Egypt indicatesthat government officials recognize the need tomanage these tensions as part of an overalldevelopment strategy. Training programs forgovernment water development and resourceofficials are underway in those countries.

The success of labor-managementmediation and arbitration in South Africa led tothe creation of other NGO and government ADRprograms to manage disputes in other areascritical to development. For example, mediationor arbitration initiatives are now developing todeal with land claims, economic developmentplanning, conflict and tension in the schools,disputes within the health care system, and avariety of other issues. Certain ADRmechanisms, such as facilitated negotiation,conciliation, mediation, and regulatorynegotiation are particularly suited to bringingstakeholders together to reach consensus ondevelopment initiatives.

ADR programs have been designed toaddress labor-management disputes in thePhilippines (Department of Labor, NationalConciliation and Mediation Board),environmental disputes in Eastern Europe(RESOLVE, UNITAR), and commercialdisputes in Ukraine (USAID funded, Search)and in Bulgaria, Hungary, and Poland (USAIDfunded, Partners for Democratic Change). Ineach case, the programs are designed toovercome specific barriers to development andsocial change.

* * *

The Limitations of ADR 21

Part V

The Limitations of ADR

Although ADR programs can play animportant role in many development efforts,they are ineffective, and perhaps evencounterproductive, in serving some goals relatedto rule of law initiatives. In particular, ADR isnot an effective means to:

• Define, refine, establish and promote alegal framework.

• Redress pervasive injustice,discrimination, or human rightsproblems.

• Resolve disputes between parties whopossess greatly different levels of poweror authority.

• Resolve cases that require publicsanction.

• Resolve disputes involving disputants orinterested parties who refuse toparticipate, or cannot participate, in theADR process.

A. ADR programs do not setprecedent, refine legal norms, orestablish broad community ornational standards, nor do theypromote a consistent applicationof legal rules.

As noted earlier, ADR programs aretools of equity rather than tools of law. Theyseek to resolve individual disputes on a case-by-case basis, and may resolve similar cases indifferent ways if the surrounding conditionssuggest that different results are fair orreasonable according to local norms.

Furthermore, ADR results are private and rarelypublished. As long as some other judicialmechanism exists to define, codify, and protectreasonable standards of justice, ADR programscan function well to resolve relatively minor,routine, and local disputes for which equity is alarge measure of justice, and for which local andcultural norms may be more appropriate thannational legal standards. These types of disputesmay include family disputes, neighbor disputes,and small claims, among others.

In disputes for which no clear legal ornormative standard has been established, ADRmay not be able to overcome power imbalancesor fundamental disagreements over normsamong disputants. On the other hand, insituations where there is no established legalprocess for dispute resolution, ADR may be thebest possible alternative to violence. Forexample, in South Africa, a variety of ADRprocesses used before and during the transitionappear to have prevented violence to somedegree and helped set the foundation forpeaceful political change.

B. ADR programs cannot correctsystemic injustice,discrimination, or violations ofhuman rights.

As noted above, ADR systems oftenreflect the accepted norms of society. Thesenorms may include discrimination againstcertain groups and populations. When this istrue, ADR systems may hinder efforts to changethe discriminatory norms and establish new

22 The Limitations of ADR

standards of group or individual rights. In India,for example, the lok adalats were generallycredited with resolving large numbers of casesefficiently and cheaply in the mid-1980s beforethe system was taken over by the governmentjudiciary. Women, however, did not like thesystem, especially for family disputes, becauseresolution of disputes was based on local norms,which were often discriminatory towardswomen, rather than on more recently definedlegal rights. The same was true for members oflower castes. (See Whitson, 1992.)

C. ADR programs do not workwell in the context of extremepower imbalance betweenparties.

These power imbalances are often theresult of discriminatory norms in society, andmay be reflected in ADR program results. Evenwhen the imbalance is not a reflection ofdiscriminatory social norms, most ADR systemsdo not include legal or procedural protections forweaker parties. A more powerful or wealthyparty may press the weaker into accepting anunfair result, so that the settlement may appearconsensual, but in fact result from coercion. Forthe same reason, ADR programs may not workwell when one party is the government.

When the program design has been ableto enhance the power or status of the weakerparty, ADR has been effective in conditions ofdiscrimination or power imbalance. InBangladesh, for example, women who havesubmitted cases of spousal abuse to mediationhave found that the village mediation system,which includes women mediators, providesbetter results than the court system which iseven more biased against women in these cases.(See Bangladesh Case Study.) In general,however, ADR programs cannot substitute forstronger formal protections of group and classrights.

D. ADR settlements do not haveany educational, punitive, ordeterrent effect on thepopulation.

Since the results of ADR programs arenot public, ADR programs are not appropriatefor cases which ought to result in some form ofpublic sanction or punishment. This isparticularly true for cases involving violent andrepeat offenders, such as in many cases ofdomestic violence. Societal and individualinterests may be better served by court-sanctioned punishment, such as imprisonment.It is important to note, however, that victim-offender mediation or conciliation may be usefulin some cases to deal with issues unresolved bycriminal process.

E. It is inappropriate to use ADRto resolve multi-party cases inwhich some of the parties orstakeholders do not participate.

This is true because the results of mostADR programs are not subject to standards offairness other than the acceptance of all theparticipants. When this happens, the absentstakeholders often bear an unfair burden whenthe participants shift responsibility and cost tothem. ADR is more able than courts to includeall interested stakeholders in disputes involvingissues that affect many groups, such asenvironmental disputes. When all interestedparties cannot be brought into the process,however, ADR may not be appropriate formulti-stakeholder public or private disputes.

The Limitations of ADR 23

F. ADR may undermine otherjudicial reform efforts.

There is a concern that support for ADRmay siphon money from needed court reforms,draw management and political attention fromcourt reform efforts, or treat the symptomsrather than the underlying causes of problems.While these concerns are valid, they will rarelymaterialize if ADR programs are not designed tosubstitute for legal reform. In most cases, ADRprograms will be far less expensive to start andoperate than broad-scale judicial reform efforts.In Ukraine, for example, the USAID missionconsiders the mediation program to be veryinexpensive compared with other rule of lawprograms. And, in Sri Lanka, the MediationBoards resolve cases at a fraction of the cost thegovernment would incur through the ordinarycourt system. In general, ADR programs reducecosts for the state, and therefore for donors, atleast as much as they reduce costs for disputants.

In sum, ADR programs do notnecessarily draw attention away from problemsthat can only be addressed through formaljustice processes, as long as both developmentofficers and government officials keep in mindthe limitations of ADR programs.

* * *

What Background Conditions Are Important? 24

Part VI

What Background Conditions AreImportant?

ADR programs, like any otherdevelopment programs, are more likely toachieve their objectives when they operatewithin an hospitable context. The particularbackground conditions (i.e., conditionsindependent of the specifics of program design)that are especially relevant to ADR programsinclude: adequate political support, supportiveinstitutional and cultural norms, adequate humanresources, adequate financial resources, andrough parity in the power of disputants.

These conditions are almost too obviousto state, but the particular way they influenceADR programs is worth considering beforedeciding whether to launch an ADR effort.While no one of the conditions is alonesufficient to create a context in which ADR willsucceed, the absence of any one of thesecontextual elements could prove fatal to an ADRprogram.

A. Adequate Political Support

Reasons for needing political support:

• Securing legislative support toestablish jurisdiction and authority

• Obtaining bureaucratic protectionfrom resource cuts

•Obtaining financial support•Building popular acceptance and use•Overcoming opposition of vested

interests

Constituencies whose support may benecessary:

•Local community leaders (mostcritical for success)

•National and state government• Judges and the bar•Advocates and representatives of

user groups•Foreign donor nation/foundation(s)

The level and source of political supportfor dispute resolution programs is an importantfactor in determining the potential success of,and appropriate design for, an ADR system.Different kinds of ADR programs requiresupport from different constituencies.Community-based programs will need at leastthe support of the beneficiaries and the localcommunity leaders in which the programs willoperate. For many programs, the localcommunity leaders will also be importantsources for design information and mediator orarbitrator nominations. They will also beinfluential in lending prestige to the program andsupporting community enforcement ofsettlements. Their support is almost alwayscritical for success.

1) Building Political Support

A national system, supported andmanaged by the national government, requireshigh level political support. Such supportshould be capable of ensuring the passage of an

25 What Background Conditions Are Important?

adequate statutory basis for the system,protecting the system from attacks by otherprograms that may feel threatened, and ensuringadequate financial resources. Such supportshould also be "popular" in the sense that thesource of that support should hold theconfidence of the people. If the program isfostered by an agency or government alreadydiscredited by corruption or ineffectiveness, thesystem will not gain popular acceptance.

Ideally, a high level official— a ministeror agency head— will lead the effort, with asupporting coalition including representatives ofthe court system: administrators, judges andlawyers, representatives/advocates of potentialADR user groups, and foreign donors. Themediation program in Uruguay has successfullydeveloped a strong coalition that has been ableto build financial, political, and popular supportfor the program. So far, the strong coalition inUruguay has been able to overcome oppositionfrom judges. (See Blair and Hansen, 1994.)

Good program design can help buildpolitical support, intentionally or not. InBolivia, for example, the USAID missionsupported the first ADR program (commercialarbitration and conciliation) for the benefit of apolitically influential sector (small business),and implemented it through a politicallypowerful ally, the Chamber of Commerce. Oncethe legal foundations for this program wereestablished, other programs, such as communityjustice centers for disadvantaged parts of thepopulation could be planned.

2) Dealing with Opposition

The source, level, and strength ofpolitical support must be sufficient to neutralizeopponents of ADR who have the political powerto block it. In addition to institutionalopposition stemming from bureaucratic ego andissues of control, the more powerful sources ofopposition are usually economic. Judges,lawyers, and interest groups that benefit fromcurrent institutional biases may all be sources of

strong opposition to ADR programs. Lawyersfelt they were losing cases and fees to the lokadalat ("people's court") system in India, forexample, and probably helped persuade thegovernment to take over the system andundermine it. (See Kassebaum, 1989.)

If initial analysis indicates oppositionfrom such powerful groups, then programdesigners must choose whether to rely on highlevel supporters to overcome that opposition,build financial and other incentives into theprogram to reduce the opposition, or to bypassthe opposition by establishing a program thatfunctions locally and independently. It may bepossible to co-opt opposite groups by involvingthem as ADR program supervisors and/or staff.This is a risky strategy, however, and hasprobably failed at least as often as it hassucceeded. In India, the lok adalat system wasfunctioning well and widely supported whenindependent of the judiciary. When thegovernment passed legislation forcing the lokadalats to be managed by the court system, itwas thought that the judiciary would support thesystem once it was in control. Instead, thejudiciary cut funding and mismanaged theprogram, which quickly lost the confidence ofthe users. (See Whitson, 1992.)

At a minimum, political support may benecessary to pass legislation authorizing ADR,especially binding arbitration systems. InBolivia, for example, the Chamber of Commercearbitration program could not establish itselfwith users until legislation authorized courtenforcement of arbitral agreements. Mediationand conciliation programs can operatereasonably well on an independent basis sincesettlements are voluntary agreements betweenindividuals, but these ADR systems may bestrengthened by legal mechanisms to enforcethese agreements. (See Bolivia Case Study.)

What Background Conditions are Important? 26

The Importance of Political Support: CEM in Costa Rica

Success is no guarantee of support. Programs that develop a successful reputation outside the formalgovernment structures, with the hope and expectation that the government will adopt responsibility for theproven programs, remain vulnerable to jealous and threatened officials. In Costa Rica, the Centro deMediación (CEM) was established to help resolve family disputes in poor neighborhoods. During thefirst year of operation, the Center achieved a high level of success in case resolution (60%), highpenetration of disadvantaged parts of society that did not normally find access to the court system (71-78% of users had not completed high school and 25% were unemployed), and high indices of usersatisfaction as measured in subsequent Gallup polls (100% said they would use CEM again, 81% said themediation was "useful" or "highly useful" and 90% thought the mediation outcome was "just").

CEM was started as a joint venture between the Supreme Court and the Patronato Nacional de la Infancia(PANI), a family/child welfare agency of the national government. Although PANI signed the agreementwith the Supreme Court to start the center, none of the bureau chiefs at PANI took responsibility forCEM. When the pilot period ended, the agreement called for PANI to take on institutional responsibilityfor CEM. Despite the documented success of CEM, the PANI bureaus refused to take responsibility forthe CEM budget. None would reduce other areas of their budgets to accommodate CEM. More than 50%of the CEM staff were fired, and the lease was terminated.

The CEM experience suggests that successful experimentation with new judicial models is not enough.Individual and bureaucratic support remains essential (Eduardo Garro, 1995 and 1996).

3) Bypassing the National Level

Proponents of ADR may find oppositionto the program at a national level, but supportfor the program at a local level. In such cases, itmay still be possible to establish local ADRprograms to address local concerns. Prior to thetransition of government in South Africa, forexample, local "people's courts" wereestablished in a number of black townships tobypass illegitimate and ineffective governmentcourt systems. These courts and mediationprograms succeeded in reducing levels ofviolence and resolving local conflicts, andmaintained local township support, despiteopposition from the national government. (SeeForaker-Thompson, 1992.)

The lack of national political support isnot necessarily the death knell of an ADRsystem. Local ADR systems can still functionwell as long as they have strong user support,

adequate financial resources, and as long as theydo not spark an "immune system" reaction froma national government that might seek toactively close such systems. The experience ofIMSSA in particular, and of NGOs working inSouth Africa in general, has been that politicalsupport at the national level may not benecessary. In fact, in a system as politicallyillegitimate as the apartheid government was inSouth Africa, it may be unwise to seek politicalor official support for an ADR program. (SeeSouth Africa Case Study.)

4) Support for Issue-Specific ADR

If the judiciary will not support ADRprograms for all civil disputes, definedbeneficiaries may support specific programsfocused on particular types of disputes. In SouthAfrica, IMSSA focused on labor-managementdisputes. Demand from both labor andmanagement was high. Once the programsdemonstrated their effectiveness, they were


supported by the corporate community.Management found that informal NGOmediation and arbitration services could resolvecases more efficiently than the governmentstructures. This corporate community supporthelped protect the NGOs from efforts toundermine the programs.

B. Supportive Cultural Norms

Reasons for needing supportivecultural norms:

•User acceptance of informalprocesses

•Appropriate standards for settlements•Enforcement through community

customs and sanctions

Important elements of culturalnorms:

•Traditional usage of informal,community-based dispute resolution

•Shared, reasonable standards offairness and equity

•An absence of generally accepted andstrong discrimination or bias, at leastregarding potential users of the ADRprocesses

•An absence of generally accepted orexpected corruption, at least at acommunity level, or traditionalmechanisms for dealing withcorruption

•Values of honor or honesty whichpromote compliance

1) Cultural Norms Supportive ofInformal Dispute Resolution

For ADR programs to be successful, thecultural norms of the community should supportthe concept of informal dispute settlement.Even in countries where the judicial system isdiscredited and where reforms are unlikely in the

short term, ADR programs can provide areasonable degree of justice if a tradition ofinformal dispute resolution exists. Many studiescite the importance of these traditions as abackground condition for success. (Seediscussions regarding Taiwan, China, Sri Lanka,and Korea in Huang, 1996; Jandt and Pederson,1996; Hanson, Said, Oberst and Vavre, 1994;Sohn and Wall, 1993.) Such favorabletraditional and cultural norms are difficult tobuild if they do not exist, and should beconsidered carefully as a prerequisitebackground condition.

The absence of cultural norms whichsupport informal third party dispute resolutionshould not automatically eliminate considerationof ADR programs. During the years ofCommunist Party control in the Ukraine, theonly third party with authority to decide disputeswas the local party leader. All other forms oftraditional dispute resolution or informal villageauthority were squeezed out of the system.When the Communist Party structure collapsed,there were no traditional dispute resolutionmechanisms on which to build. Experience withthe authoritarian party dispute resolution systemhas made the population reluctant to submitdisputes to a third party. In addition, the conceptof voluntary mediation, in which the mediatorhas no authority to force a settlement, is foreign.If the program design is able to incorporate aneffective way of building those norms in thelong-run and operating despite their absence inthe short-run, then it may be worth investing inADR.

The UMG in Ukraine is a good example.The ADR program there addressed thesechallenges by starting in a sector more receptiveto ADR methods and by focusing on a crediblelocal mediator, whose familiarity with Westernand Soviet-era ADR and whose commitment tothe program have helped make it successful.(See Ukraine Case Study.)


2) Existence of Standards of JusticeWidely-Perceived as Fair

Sufficient normative background conditionsshould include not only support for informaldispute resolution processes, but also reasonablestandards of justice and equity. If the culturalnorms of behavior are fair and reasonable, ADRmay be an appropriate mechanism for applyingthose norms to resolve individual disputes in aninformal manner. If the norms are unattractiveor unfair, however, then mediators drawn from apool of citizens reflecting those norms are likelyto mediate or impose unfair settlements.

Fair and reasonable standards of justiceshould not include strong discrimination or biasagainst any potential user group. If the acceptedstandards of justice embrace discriminationagainst part of the population, or abuse the rightsof certain individuals, informal disputeresolution systems will usually reflect thesestandards. In the absence of any legalrequirement to resolve cases according to legalguidelines, mediation and arbitration systemswill generally produce results that followcultural norms of justice. On the other hand, asnoted earlier, even in countries wherediscrimination is present, ADR programsspecifically designed to compensate for suchdiscrimination may provide better justice than abiased court system. Many women found this tobe true in Bangladesh. In general, however,ADR systems cannot be expected to reformattitudes about group or individual rights.

In some cases, the traditional conflictresolution processes embody levels of bias andclass stratification that USAID would not wantto promote. In Indonesia, for example,mediation efforts to resolve environmentaldisputes ran into opposition from some parts ofthe population who felt that traditionalmediation, musyawarah, reinforced classhierarchy and authoritarianism. (See Moore andSantosa, 1995.) It is important, therefore, not toassume that the existence of traditionalmediation implies that an expanded ADR effort

will be widely accepted by the part of thepopulation. Assessing the support for suchinformal dispute resolution among the targetpopulation is critical.

Norms Supporting Discrimination:ADR in Japan

Following World War II, the reformed Japanesegovernment established the Civil LibertiesBureau (CLB) to mediate disputes relating tosocial rights. One goal of the CLB was thecreation and protection of individual and grouprights for disadvantaged parts of the population.Although the strong normative culture ofJapanese society helped the CLB resolve manydisputes, cultural discrimination against certaingroups was also part of the accepted normativesystems and could not be redressed effectivelythrough the CLB mediation and ombudsmanprocesses. (See Rosch, 1987.)

3) Cultural Norms Against Corruption

Corruption in the formal legal system maybe a motivation for creating an alternativesystem. If local norms and local control of ADRsystems can avoid corruption, and if alternativemeans of enforcement can avoid the need todepend on the formal judicial system forenforcement, ADR systems can succeed whereformal systems have failed. Broad-basedcultural norms which accept corruption even at alocal level, however, will complicate programdesign, increase its cost, and reduce its chance ofsuccess.

4) Cultural Norms Favoring Voluntary Compliance

Although in general it is important that theparticular ADR process employed should beconsistent with broadly-held traditional norms, itis also important to ask why traditional disputemanagement systems have failed and whetherthe same conditions will undermine theproposed ADR system. Cultural norms


regarding compliance with agreements are oftenimportant for ADR program success. In theMiddle East, traditional cultural norms have heldfamilies responsible for the agreements offamily members. This norm is extremelyeffective in promoting compliance. As Westernlaw has taken precedence, and as families havebecome more mobile and less cohesive, thiscultural norm is losing strength, and traditionalmediation by village elders is losingprominence. It is not clear whether acommunity-based ADR system can reinforce orsubstitute for these traditional mediators.

C. Adequate Human Resources

Reasons for needing adequate humanresources:

• A sufficient pool of skilled and respectedmediators or arbitrators to managecaseload efficiently and effectively

Important elements of human resources:

•Community members and leaders whohave the respect of the community

•Honesty and a sense of communityservice among potential mediators

•Resources and skills necessary to preparean adequate training program

Adequate numbers of well-qualified andwell-supervised ADR staff are essential toprogram success. Evidence from the U.S.suggests that the quality of ADR staff is muchmore important to participant satisfaction withADR outcomes than ADR's cost, the time ittakes, or its specific procedures (Rosenberg andFolberg, 1994). Similarly, user satisfaction withSri Lanka's Mediation Boards is much higherthan with the previous conciliation system,largely because much greater care has beentaken to select, train, and supervise communitymediators based on merit, not politicalconnections. (See Sri Lanka Case Study and

Hansen, et al., 1994.) Several factors affect thequality of the ADR staff.

1) Honest and Respected Personnel

A large pool of educated, honest, andrespected personnel is not always available, butit may be critical for success. In Sri Lanka, theMediation Board system has depended on highnumbers of educated citizens who havevolunteered to be mediators, including manyschool teachers, clerics, postal workers, andother civil servants respected in theircommunities. The strong sense of communityservice among these mediators has beenimportant, and may not be present in allcountries. Mediators must have a minimumlevel of education. However, the respect of thelocal community is often more important tosuccess than substantive knowledge.

2) Training

Good training, and sufficient resourcesto maintain such training on an on-going basis,has been important to create a cadre of qualifiedand respected mediators. Many successfulprograms, like those in South Africa, Sri Lanka,Bangladesh, and Argentina, have had goodtraining programs as an integral part of thedesign.

3) Literacy

In Sri Lanka, a high rate of literacy hasalso been important to the Mediation Boardsuccess. The high literacy rate and an activepress help to hold public officials to a higherstandard of performance than in otherdeveloping countries. In addition, a literatepublic is easier to reach and educate aboutmediation. (See Sri Lanka Case Study.)


4) Sufficient Numbers of Personnel

It is important that the pool of skilledADR staff be large enough so that the systemdoes not become overburdened and to avoidpersonnel frustration and burn-out. In SouthAfrica, the large pool of mediators andarbitrators trained by IMSSA was a significantasset since it meant that the system gained areputation for immediate response. Conversely,the enormous increase in the mediation caseloadof the Commission for Conciliation, Mediation,and Arbitration (CCMA) following changes inthe South African legal system threatens tooverburden the mediators and erode confidencein the system. In Sri Lanka, the most pressingconcern facing the Mediation Board system isthe excessive level of work for the volunteermediators and trainers. (See Sri Lanka andSouth Africa case studies.) Beyond such basicissues as honesty, training, literacy, andnumbers, the program design will affectsignificantly the adequacy of human resources.

D. Financial Resources

Reasons for needing adequatefinancial resources:

•Costs of administration, third partypersonnel, evaluation, and outreach

Important elements of financialsupport:

•Sustainability•Sufficient to avoid corruption or

overwork for third parties or othersimplementing the ADR system

Compared with formal court processes,ADR programs are inexpensive for the state aswell as the disputants. Many programs operatewith volunteer mediators, and few haveburdensome requirements for documentation oradministration. Nevertheless, in somedeveloping countries, governments have not

allocated enough financial resources to pay forprogram administration, and/or have not trainedenough volunteer mediators to make mediation areasonably small time commitment forvolunteers.

The Mediation Boards in Sri Lankarepresent one of the most successful ADRprograms among developing countries,particularly with regard to the developmentobjectives of USAID. The system is injeopardy, however, because of the low level offinancial support and the increasing burdens onthe volunteer mediators. Not only are themediators unpaid, but they must often covertheir own expenses. The mediators have nooffices or staff, and may need to use their homesfor mediations. They document their own workand pay for their own office supplies. Althoughthe system has been successful at resolvingincreasing numbers of cases, the increasingburdens on the mediators are leading to aconcern that mediators may quit and that newmediators may be difficult to find. In addition,some observers are concerned that somemediators may become susceptible to corruptionunless they are paid, or at least their costs arecovered. (See Sri Lanka Case Study and Hansen,et al., 1994.)

In some instances where the governmentis unwilling or unable to give sufficientresources, it can provide the framework for theprograms to become self-sustaining. In Ukraine,for example, the sustainability of the UMGwould be enhanced greatly if they could chargea fee for service, both for some mediations andfor training to wealthier audiences.


E. Parity in the Power of Disputants

Reasons for needing parity:

•To avoid coercive results•To persuade participants to use the

process

Important elements of parity:

•Balanced legal rights for disputantsas a context for ADR

•Parity between individual disputantsin specific cases

•Procedural protection for those inweaker position

ADR systems are unlikely to overcomewide disparity in the power of disputants, or toredress discrimination, unless they can bespecifically designed to do so. In most cases,informal processes are less able than formaljudicial systems to produce fair outcomes incases of wide power disparity. As noted earlier,powerful parties retain the ability to intimidateweaker parties in conciliation or mediation andcoerce them into accepting unfair settlements.In addition, since participation of the disputantsin most ADR programs is voluntary, strongerparties are unlikely to participate if they feelthey can obtain better results by relying on theirpower and remaining outside the system. ADRprograms that operate in a context of civil war(Cambodia), widespread repression (Philippinesin the 1980s), or gross social and politicalinequalities (Guatemala), will be hard pressed toattract powerful disputants to use their services.For powerful disputants in these situations,bribing an government official or sending a thugmay be the most certain and effective way toresolve the dispute on favorable terms.

Nonetheless, there are many civildisputes that could be resolved through ADReven in contexts of gross political inequality.First, if disputants in a particular case haveroughly equal power to manipulate the political,

legal or social system, and ADR staff do nothave incentives to favor one disputant overanother, ADR programs should be able toresolve particular disputes despite systemicinjustice. Village dispute resolution by localofficials in Cambodia appears to be functioningeffectively in many interpersonal cases, althoughit is problematic in cases involving the state,particularly land disputes. (See Collins, 1997.)

Second, a fairly balanced legalframework defining disputants' rights may allowADR programs to deal with disputes despitepower imbalances. One of the factors in thesuccess of IMSSA in mediating labor disputes inSouth Africa, despite obvious discriminationagainst black and colored workers, was therelatively strong legal framework protecting therights of workers. These legal protectionshelped balance the otherwise unequal power ofthe parties, and allowed IMSSA to mediatedisputes effectively. In direct contrast, however,IMSSA has found that it is unable to mediateeffectively disputes between landlords andtenants. Tenants have so few legal rights thatmediators have not found landlords to beamenable to voluntary settlements. The lack oflegal sanction means that landlords have littleincentive to agree. (See South Africa CaseStudy.)

Third, carefully designed ADRprograms operate effectively if they correct forsituations of general social power imbalance.For example, although the traditional shalishmediation system in Bangladesh reflected theoverall bias against women in society, thereformed system supported by USAID, whichincorporated more women into the mediationcommittees, has tried to correct for this bias.Women users interviewed felt that the systemwas less biased than the court system inhandling disputes between men and women.(See Bangladesh Case Study.)


Some ADR programs includeprocedural provisions to protect against theeffects of undue disparities in power betweenparties. In Bolivia, for example, the Arbitrationand Conciliation Law empowers the "weaker"party in a dispute to withdraw from acommercial arbitration or conciliation procedureunilaterally and resort to the formal courtsystem. Furthermore, the structure of ADR inBolivia has evolved to focus on disputes that arelikely to occur between parties of similarbackgrounds and power. Commercialconciliation and arbitration through the Chamberof Commerce Conciliation Centers is focused ondisputes between commercial enterprises.Court-annexed conciliation focuses on familyand labor disputes and is most likely to involvemiddle-class litigants. Extra-judicial communityconciliation centers are being designed toprovide dispute resolution for low incomecitizens. (See the Bolivia Case Study.)

* * *

What Program Design Considerations Are Important? 33

Part VII

What Program Design ConsiderationsAre Important?

This section describes program designconsiderations that will contribute to the successof ADR. Many of these design factors arecommon to all USAID program designstrategies. The Guide describes some of theparticular considerations necessary in applyingthese design factors to ADR programs. Some ofthe design factors relate to the backgroundconditions described in the preceding section,and suggest ways of designing successful ADRprograms under more or less favorablebackground conditions.

Given the diversity of ADR programsand their institutional and cultural settings, it isimpractical to define a standard set of ADRprocedures or guidelines. On the other hand, anADR program will be more likely to meetUSAID development objectives and gainpopular and political support if the designguidance provided here is followed whereverpractical and possible.

Each design recommendation should beconsidered within the context of the backgroundconditions of the country and the specificobjectives of the program. While eachrecommendation should be correct in theabsence of countervailing indications, in somecases, exceptions may be appropriate.

The design recommendations fall into twocategories:

¦ Planning and Preparation

1. Assess dispute resolution needs andbackground conditions and defineprogram goals.

2. Employ a participatory designprocess.

3. Establish adequate legal foundationsto specify jurisdiction, procedures,and enforcement, and to define arelationship with the formal legalsystem.

4. Find an effective local partner.

¦ Operations and Implementation

1. Establish effective procedures forselection, training, and oversight ofmediators and arbitrators.

2. Find or create a sustainable sourceof financial support.

3. Create an effective outreach andeducation program to reach users.

4. Create support services to overcomeuser barriers.

5. Establish effective procedures forcase selection and management.

6. Establish effective procedures forprogram evaluation.

A. Planning and Preparation

This set of recommendations should befollowed before making a decision regardingwhether to create an ADR program. Theplanning process will inform developmentofficials as to whether appropriate needs andconditions exist to support an ADR program,and may help determine the type of ADRprogram that will best meet the needs of the userpopulation.

34 What Program Design Considerations Are Important?

1) Assess dispute resolution needs andbackground conditions, and articulateprogram goals.

Any program design should be groundedin an analysis of needs and the backgroundconditions discussed in the previous section.The first step in a design process should,therefore, be a careful analytical assessment,including, but certainly not limited to, thefollowing elements:

a. Dispute resolution needs

What are the needs for disputeresolution in the country? What kinds ofdisputes are going unresolved? Are parts of thepopulation excluded from or underserved by theexisting formal structures? Are the costs of theexisting system so high that many citizenscannot participate? What disputes areconsidered appropriate for informal resolution?All of these factors should be assessed as part ofan evaluation of the needs of the country.

Once an analysis reveals a need fordispute resolution in certain areas, theassessment should investigate the barriers thatprevent individuals from using existing formallegal structures to resolve these issues. As notedin the previous section, these barriers mayinclude cost, illiteracy, discriminatoryprocedures, perceptions of unfairness, physicalinaccessibility, and lack of proximity, or lack ofawareness. An appropriate program designshould address these conditions and make surethat they are not replicated in the design of anyalternative system.

The needs may be assessed in a varietyof ways. Public opinion polls may be the mosteffective means for reaching all components ofsociety. In Costa Rica, a Gallup poll surveydetermined that Costa Rican citizens felt thatfamily matters were the most appropriatedisputes for a mediation program. The poll alsoindicated that only 3% of respondents felt thatthe courts alone could resolve disputes,suggesting that the public would accept non-judicial mediation. The subsequent publicresponse to a new mediation center was high,

with a large number of cases submitted formediation. (See DPK Consulting, 1996.)

Surveys of users of the existing formallegal system may provide insights on usersatisfaction, systemic bias, or corruption thatwill be important for ADR system design.Interviews of interest groups and advocacyorganizations can provide information onilliterate or other underserved parts of thepopulation who may not respond to publicopinion polls or other surveys.

b. ADR goals

As in other development programs, aclear articulation of program goals and prioritiesbased on the needs assessment is essential to theprogram's success. A single ADR program maynot be able to accomplish simultaneously all thebenefits enumerated in Part IV. A clearlyarticulated set of goals will allow programdesigners to make necessary trade-offs whenADR goals conflict with other developmentgoals or when ADR goals are inconsistent.

c. Assess appropriate relationship tothe judiciary

(i) Judicial training and attitudestoward ADR

An important question to ask is whetherjudicial attitudes and the legal culture in thecountry are friendly to ADR. Judicialacceptance of ADR in Uruguay was low, in partat least because judicial training leads judges tobelieve that disputes are zero sum equations, andthat proper procedure requires application oflegal principles by appropriate authorities. Thishas meant that judges have been skeptical aboutand resistant to the implementation of ADRpractices as part of the court system. Thisunderstanding led to a design strategy ofimplementing ADR through the Ministry ofLabor to deal with employer/labor disputes,rather than through the Ministry of Justice todeal with general civil claims. (See Blair, et al.,1994.)


Needs Assessment: Understanding Public Attitudes in Bangladesh

Prior to establishing the goals of the ADR program, or even establishing ADR as a viable program option,USAID-Bangladesh conducted an extensive study of needs. (See "The Democracy Needs ofUSAID/Bangladesh's Customers," May 1995.) Pairs of interviewers talked with approximately 320people from a variety of occupations, religions, ethnic groups, backgrounds, and regions. After USAIDhad established initial goals based on this survey, a second round of interviews, including approximately500 respondents of various backgrounds, tested the accuracy and desirability of the initial goals.

The validation assessment concluded: "As was made clear in the earlier needs assessment, the formallegal system has no attraction for [the poor, especially women]. Interviews and focus group meetingsconfirmed the preference for people involved in a dispute to keep the resolution process as close to homeas possible.... By far and away the most accessible, most commonly used, and relatively trusted agency isthat of the local shalish [traditional mediation]. ...

"While the shalish was accepted as appropriate for poor peoples' disputes, most respondents (and womenwere in general more critical than men) felt that this committee was usually biased, as well as ill-informedas to the law and to procedures."

The assessment concluded that a reformed shalish should incorporate more participation of women onmediation committees, more training, and better monitoring of judgments.(See "Validation Synopsis Report," Democracy Partnership, August 1995, and the Bangladesh CaseStudy.)

(ii) Public attitudes towards the judiciary

If the public mistrusts the government,and/or the judiciary, it is unlikely that the publicwill patronize an ADR system that is managedby them. In India, the lok adalat system wasfirst implemented outside of any judicial andgovernmental structure and gained wideacceptance by the people. When the system was taken over by the state, however, publicconfidence in the lok adalat system deteriorated,and usage declined dramatically. (See Whitson,1992.)

Program designers should assess publictrust in the government as a whole, and thejudiciary in particular, before deciding whetherto design a system annexed to the courts, onesponsored by the government but independent ofthe judiciary, or one entirely independent fromthe government.

d. Sources of potential opposition

As noted above in the discussion of theneed for political support, several constituenciesand interest groups may be threatened by newADR systems. It is important to identify thesource, strength, and reason for this oppositionas part of the analysis before program design.Strong opposition from judges may indicate thatthe system should run outside the court system.In Uruguay, the opposition of judges to theimplementation of ADR threatened toundermine the system. Strong political andpopular support for the system, and the decisionto use non-judges as mediators and arbitrators,saved the system despite this opposition. (SeeBlair et al., 1994.)

Strong opposition from powerfulpolitical interest groups may suggest that thesystem should be established withoutgovernment support or oversight. Strongopposition from an elite national government,but support from local governments, maysuggest a regional or locally-based system. In


any case, the assessment should identify themost likely critics and opponents of any programand determine whether and how such oppositioncan be overcome.

e. The legal basis for informal disputeresolution

As noted elsewhere, ADR may needlegal authorization for programs to operate.Some legal systems may prohibit disputeresolution by private groups, others may prohibitthe collection of user fees for such services, stillothers may not provide for legal enforcement ofsettlements or arbitration awards.Understanding the legal context will beimportant for assessing the feasibility of an ADRprogram, and the appropriate design for such aprogram.

A related issue is whether the type offormal legal system— civil law, common law,based on indigenous traditions, or a hybrid ofthese— would affect the ADR program3. To theextent that the actors in ADR are linked to orinformed by the formal legal system (e.g.,neutrals with legal training, businesspersons inurban areas), they are likely to be morecomfortable with ADR programs that areconsistent with the underlying values of theformal system and that have a clear relationshipto it (especially for enforcement of agreements).On the other hand, actors at the community orgrass roots level are likely to be morecomfortable with ADR programs consistent with

3 In gross terms, an important distinction betweencivil and common law systems is that civil lawsystems are largely driven by judges and theirinterpretation of written laws, while common lawsystems are driven by parties, who bring theirdisputes to the judge and that judge who then looks towritten law, case precedent and distinctions that maybe drawn to the particular dispute. The differences inthe two systems have been stereotypically describedas hierarchical v. decentralized, an active v. reactiverole for the state, and emphasis on documentary vemphasis on testimonial evidence. These distinctionsare blurred in most countries, especially as civil lawcountries adopt common law features. Some legalsystems, like that of South Africa, are described as"hybrids" of the two.

traditional legal and conflict resolution systemsthan with civil or common law systems imposedby a colonial power with which they areunfamiliar.

2) Employ a participatory design process.

The extent of participation needed in thedesign of a dispute resolution program dependson a number of factors: the nature of theprogram; the source and strength of politicalopposition to the project; the sophistication ofthe constituents; and the knowledge andsensitivity of experts who might otherwisedesign the program on their own. If the needand demand for the program is clear, politicalopposition low, and the sophistication of expertshigh, the design process may succeed well underthe direction of experts. In general, however,broad participation by the affected population inthe design of a program is more likely to resultin a workable program. This is especially truewhen the needs are less clear, when the potentialfor political or popular opposition is high, whenmultiple constituencies may have an interest inthe design of the system, or when traditionalsystems already exist and should be consideredas potential models for a program.

In the Philippines, for example, wherelabor, management, and the government hadlong been frustrated by ineffective disputeresolution, a Tripartite Voluntary ArbitrationAdvisory Council composed of representativesfrom labor, employers, and the governmenthelped guide the design and implementation of anew voluntary arbitration system administeredby the National Conciliation and MediationBoard (NCMB). Observers credit theparticipation of the interested sectors in thedesign process, as well as the ongoing input of aparticipatory Advisory Council, with some ofthe success of the NCMB, which increased thenumber of cases handled from 58 in 1988 to 279in 1994. (See NCMB, 1996.)


Including and Excluding Stakeholder Groups in Project Design

USAID-Bangladesh used a highly participatory process to develop the ADR program based on traditionalmediation committees, shalish. Two rounds of extensive interviews gathered the ideas and comments ofpotential users from a variety of backgrounds, religions, occupations, and regions. The government wasconsulted and was invited to participate in the implementation of the program. Although it declinedparticipation, this initial consultation and periodic updates ensured government support, or at leastdefused any potential opposition. Local traditional and elected leaders were invited to submit theircomments and design suggestions.

At the same time, certain stakeholder groups were purposely left out of the design process. Academic andlegal experts were not consulted because it was felt that they would focus their input on issues related tocourt reform, which USAID had already decided against as ineffective in the short term for helping thepoor. At the end of this process, most stakeholder groups actively supported the goals of the program.(See Bangladesh Case Study.)

ADR systems designed to operate on alocal community level may need to reflect localcommunity norms and traditions. For suchsystems, participatory design may be veryimportant. For example, in rural areas ofKwazulu Natal in South Africa, NGOs foundthat they needed to consult extensively withtraditional leaders and tribal chiefs who wantedto retain their jurisdiction over most family andcommunity disputes. Some local traditions ofmediation require multiple mediators,widespread participation of the community, orextensive rituals. Other traditions andcommunity norms may limit the gender or statusof those who will be accepted as mediators.Trade-offs may then emerge: the new ADRsystem may have to move beyond suchrestrictive traditions to further developmentobjectives, such as access to justice. Theexperience with the community MediationBoards in Bangladesh shows that a participatorydesign process can highlight such trade-offs andthen help designers make the necessary choices.

Involvement of potential users inprogram design may also help build the politicalconstituency for introducing ADR. Blair andHansen (1994: 23-24) found that involvingbusiness representatives and NGOs with aninterest in judicial reform in ADR programdesign helped build political support for reform.

3) Establish adequate legal foundationsto specify jurisdiction, procedures,and enforcement, and to define arelationship with the formal legalsystem.

a. Clarify the relationship of ADR tothe judicial system

ADR programs usually require a legalbasis for operation, or at least a legal structurethat allows ADR programs to operate. Inaddition, some explicit relationship with thejudiciary may be appropriate. Potentialrelationships include full integration with courtstructures, a loose affiliation that may referappropriate cases to ADR, the ability to enforceADR program settlements in the courts, or acompletely independent existence.

(i) Mandatory referral or voluntary?

When ADR programs are designed tohandle cases in coordination with the judicialsystem, the ADR process can precede, follow, orintercede in formal legal processes. There is noobvious reason to prefer any one of thesemodels. Arguably, the best model is one thatgives disputants access to an ADR process atany point in the life of a dispute, withoutmandating that they use ADR.


In the United States, there is a sharpdebate on whether judges or administratorsshould be able to require disputants to use ADR,and an equally sharp debate on whether and howADR settlements should legally be enforced.Experience in the US suggests that mandatoryreferral to mediation does not necessarily reducesatisfaction with the mediation process or itsoutcomes (Stienstra, et. al., 1997.)

(ii) Degree of judicial control

The degree of connection to the courtsystem should depend largely on the reputationand legitimacy of the courts and the nature of theADR system. State control and support of theADR process has been important and successfulin some countries (for example, Argentina,Chile, Taiwan, and the Philippines). In others,however, state control and management haveundermined the success of and confidence in thesystem (for example, India, Costa Rica, andMexico). In India, for example, where thecourts were widely discredited, making ADRsettlements enforceable by the courts madedisputants more reluctant to use ADR (Whitson,1992). In South Africa, by contrast, theenforceability of arbitration decisions in thecourts was important for the success of the laborarbitration system.

As the experience in Sri Lanka suggests,even where the courts enjoy a good reputation,ADR's links to the judicial system need to bedesigned carefully. The Conciliation Councilswere established in Sri Lanka soon after the endof colonial power. These councils weremanaged by the judicial system and had manyjudicial powers, such as the power to subpoenatestimony and issue decrees. The councils lostthe confidence of the people, however, after theybecame increasingly corrupt and theappointment process became controlled bypolitical patronage. The councils were abolishedin 1978.

The failure of the conciliation councils,however, did not necessarily mean that any links

with the judicial system would be fatal. TheMediation Boards Act of 1988 revised therelationship to the judiciary, so that the newMediation Boards retain a clearly authorizedrelationship to the court system. First, uniform,mandatory referral to mediation before any courtaction could be initiated was established fordisputes valued below 25,000 rupees and manyminor offenses. Second, the Act provided foroversight by a Mediation Commissioncomprised of retired Supreme Court andAppeals Court justices. The act also providedthat all appointments be based on merit ratherthan patronage and that all mediators be trained.Finally, the new Mediation Boards weredeprived of the court-like powers of the oldConciliation Commissions, such as the power tosubpoena or issue decrees. With these changes,the Mediation Boards have been widelyacclaimed as successful. (See Hansen, et al.,1994 and the Sri Lanka Case Study.)

Concerns about Government Control ofADR in Bangladesh

The initial assessment by USAID in Bangladeshindicated a clear preference for a system basedon traditional local mediation— shalish— thatwould remain independent of the judicialsystem. The assessment process reported a deepsuspicion of the court system, particularly on thepart of women and the poor who felt that thecourts were biased and inaccessible.

As the reformed village mediation systemestablished with USAID support has becomemore successful, there is a desire on the part ofthe government to create a formal link betweenthe village mediation and the judicial systems byreplacing the shalish system with a network oflocal, or "grameen," courts. NGOs and donorsbelieve that a formal link would undermine thesuccess of the village mediation system byexposing it to the same corruption that haseroded confidence in the formal justice system,and by limiting access for the poor. (See theBangladesh Case Study.)


(iii) The importance of clarity

Whatever the relationship between ADRand the legal system, it is essential that ADRusers and providers understand that relationship.Providers should inform potential ADR users ifusing ADR means giving up options to use theformal legal system. They should also informusers if information they disclose during ADRmight later be used by another party in a formallegal process.

b. Establish a clear legal foundationfor ADR

In addition to a carefully definedrelationship with the judiciary, ADR systemsneed enforcement mechanisms. Where thecourts are seen as legitimate (even if costly andslow) by ADR users, the courts may be theappropriate recourse for enforcement.

Successful examples of ADR systemsmay be found operating with a variety of legalfoundations. As long as informal disputeresolution is not prohibited or undermined by thelegal system, and as long as some mechanismfor informal enforcement exists if judicialenforcement does not exist, then informaldispute resolution can work well without supportfrom the court system.

It is possible for an ADR system tooperate without any legal foundation as long assome informal mechanism for enforcementexists. For example, in Bangladesh, traditionalshalish agreements were enforced throughvillage peer pressure. Agreements wereannounced and publicly proclaimed. Familieswould lose face if they did not comply withagreements. The reformed village mediationsystem relies on this traditional compliancemechanism and succeeds despite the lack offormal court enforcement. Likewise, in theMiddle East, traditional village mediationsystems rely upon family honor for enforcement.When a village elder mediates a dispute, thesettlement is agreed between two families rather

than between two individuals. If one party doesnot comply with the agreement, the honor of theentire family is discredited.

In general, however, it will be difficultto launch a successful ADR system when therelationship with the formal dispute resolutionsystem is ambiguous, and potential users maybelieve the results of the ADR system may beoverturned or undermined by the judicialsystem. The voluntary arbitration system of theNational Conciliation and Mediation Board inthe Philippines was created in 1986. Prior to1989, however, the system attracted few of themany labor-management disputes for which thesystem was intended, in part at least because thelaws creating the system did not articulate aclear legal jurisdiction or procedures for thesystem. In 1989, legal changes provided clearerlegal foundations for the system, and providedfor more active public promotion of the process.(See NCMB, 1996.)

Likewise in Bolivia, an absence of alegitimizing legal framework inhibited ADRoperations prior to 1997. The new Arbitrationand Conciliation Law, which establishesconsistent arbitration and conciliationprocedures and the ability to enforce arbitrationawards in the courts, gives potential usersconfidence that they will not be wasting theirtime in ADR. Service providers also feel moreconfident marketing their services. (See BoliviaCase Study.)

In addition to clarifying any ambiguitiesin the legal foundations for ADR, programdesigners should assess the larger legalenvironment and work to remove laws that maynegatively impact the use of ADR. In Ukraine,it is now illegal to negotiate or mediatesettlement of a case once it has been submittedto a court. If the parties wish to settle outsidethe auspices of the court, they must withdraw thecase and forfeit the filing fee. This legalconstruct discourages the mediation andsettlement of cases that might be resolved. (SeeUkraine Case Study.)


Other laws may have an indirect impacton ADR organizations. As noted below,Ukrainian laws forbid NGOs from charging feesfor services. Although this law is not intendedto affect ADR specifically, it has had the effectof threatening the financial sustainability of theUkraine Mediation Group, which must nowdepend on charitable contributions orquestionable kick-backs from mediators whoreceive direct payment from users. (See UkraineCase Study.)

USAID influence can help create thelegal foundations for ADR. In Bolivia, theUSAID mission linked its support for judicialreform to the passage of the Arbitration andConciliation Law. This linkage created aconstituency of support for ADR and a clearlegal foundation for operation and enforcement.

4) Find an effective local partner.

Dispute resolution and conflictmanagement projects are more sensitive to localnorms and culture than many other developmentprojects. When choosing local partners for ADRprogram design and implementation, the normalconsiderations of sustainability, effective andhonest management, and local acceptability areimportant. In addition, those implementingADR programs must be carefully tuned to thepolitical and social culture of the communities inwhich they operate. This suggests that a gooddesign should identify a local organization,NGO, or government department that is well-managed, financially stable, broadly reflective ofthe diverse constituencies in the country orcommunity, and sensitive to the cultural normsaround conflict resolution. While filling all ofthese qualifications may be difficult, the mostimportant consideration may be the enthusiasm,energy, talent and commitment of the directorand staff, and their sensitivity to and ability tooperate within the local community.

The USAID mission in Ukraine creditsmuch of the success of the Ukraine MediationGroup to the enthusiasm and commitment of thedirector, as well as his intuitive understanding ofthe needs and norms of the society. Hisleadership has been critical to the growth andacceptance of the program, despite a culture thathas been less receptive than many others toinformal third-party dispute resolution. (SeeUkraine Case Study.)

B. Operations and Implementation

1) Establish effective procedures forselection, training, and oversight ofmediators and arbitrators.

The success of an ADR programdepends on the quality and reputation of themediators or arbitrators employed by the system.Selection and training are critical components ofprogram design. In addition, ADR programsshould incorporate safeguards to ensuremediator and arbitrator impartiality and quality,including procedures for regular evaluation andoversight.

a. Selection and training

The choice and training of mediatorsand arbitrators are probably the most crucialfactors in the success of any ADR programbecause their credibility affects the confidenceof the users. A number of considerations affectthe credibility of ADR service providers:

(i) Selection of local notables

Some programs have succeededbecause they have chosen highly respected localcitizens to be the mediators. The MediationBoards in Sri Lanka, for example, are staffed byrespected local volunteers. In China, thePeople's Mediation Committees draw on highlyregarded local citizens as members. Likewise inTaiwan, observers and participants attribute thesuccess of the mediation committees, in part at


least, to the fact that the mediators are respectedresidents of the local villages or towns (SeeShir-Shing Huang, 1996.) The selection ofnotables or village elders bases the credibility ofthe system on the individual reputations of themediators.

These local notables may have closerelationships with and influence over disputantsin particular cases, and may use their influenceto push for settlements that uphold communitynorms. Notables may have little formal trainingin ADR techniques. Nevertheless, they may bewidely respected and sought out because theyrepresent and uphold community norms thatdisputants accept as fair standards for resolvingdisputes.

One of the several factors contributingto the decline of the lok adalat courts in Indiaafter they were placed under formal governmentmanagement in 1988 was the change in thecharacteristics of the "conciliators." Whereasconciliators had been chosen from within thelocal community when the lok adalats wereoperated outside government control, theconciliators chosen by the government werefrequently not members of the community inwhich they operated. This led to a decline inpublic confidence in the system. (See Whitson,1992.)

In Bangladesh, the Madaripur Legal AidAssociation (MLAA) selects mediators based onthe recommendation of local elders and electedofficials. As noted in MLAA documents, "amediator worker must be familiar with thelocal/societal roots and belongings of the parties,as well as their specific traditions, customs, andvalues. By being locals, the mediators ensurethat they are familiar with all the nuances oflocal lives, both of the parties directly involvedand others who may be indirectly concernedwith the outcome of the resolution process."(“Mediation: Concept, Techniques andStructures,” MLAA, see Case Study.)

There may be a trade-off betweenchoosing "notables" and choosing "progressives"or "representatives of disadvantaged groups" asADR providers. Notables may have greaterauthority to resolve disputes according toexisting norms, but little interest in mitigatingpower imbalances between parties in particulardisputes. Progressives (e.g., social workers orteachers from outside the community) andrepresentatives of disadvantaged groups (e.g.,women, members of low-income or low-statusgroups) may have less authority, but greaterinterest in mitigating power imbalances.

(ii) Familiarity with the legal systemmay not be essential

Familiarity with the formal legal systemmay be another qualification trade-off. Wherethe legal system is widely agreed to be byzantineand unjust, it is not clear that familiarity with itshould be a criterion for selecting third parties,even for court-annexed, labor or commercialdisputes that are mediated or arbitrated in theshadow of the law. In the Philippines, laborarbitrators from a private voluntary association,who are generally less familiar with labor lawthan the official government labor arbitrators,appear to be more popular with disputants thanthe government labor arbitrators. Somedisputants believe that the government'sarbitrators are more likely to take bribes tomanipulate regulations (USAID, 1994). On theother hand, training programs in Sri Lanka andBangladesh include components designed toinform mediators about relevant laws.Familiarity with legal standards is consideredimportant by users. In Bangladesh in particular,users cite the training and familiarity withrelevant laws as one of the advantages of thevillage mediation system over traditionalshalish. (See Sri Lanka and Bangladesh CaseStudies.)


(iii) Cultural norms affecting selectionand credibility

Cultural norms may influence thecriteria for selection of effective and appropriatemediators. For example, in many Asiancultures, the welfare of the whole community isseen as more important than the rights ofindividual members. In these cultures, the mostwidely respected and accepted mediators may bethose who best promote community interests.Likewise, many Asian cultures focus on long-term reconciliation as a more important goalthan short-term dispute resolution. Mediatorswho are more adept at promoting reconciliationwill be more effective. Finally, Asian culturesoften place more importance on credibilityrather than neutrality, and highly respectedcommunity members may be more effectivemediators, even if they are not completelyneutral, than neutral mediators of lowercommunity stature. (See Jandt and Pederson,1996.)

(iv) Training as a means of establishingcredibility

Some systems have been effective inestablishing the credibility of third partiesthrough effective training. The success ofIMSSA in South Africa depended on the qualityand intensity of its mediator and arbitratortraining program, which contributed to afavorable reputation for quality andprofessionalism. Further, IMSSA trained a largenumber of mediators, which allowed it torespond in a timely manner to requests forservices. These factors helped IMSSA developan institutional reputation for quality andeffectiveness, and helped contribute to a nationalreputation for ADR as an effective means forresolving disputes. (See South Africa CaseStudy.)

Training at IMSSA

The extent of IMSSA’s training for labormediators (panelists) in South Africa isinstructive. The training includes a number offormal courses with increasing levels ofspecialization, observations of actual mediationsand arbitrations, and pairings with experiencedmediators and arbitrators. The trainees arereviewed and assessed throughout the process,and must receive recommendations from themediators they work with before they canreceive accreditation. The training process takesapproximately six months. An IMSSA code ofprofessional conduct governs the work ofaccredited panelists. (See South Africa CaseStudy.)

b. Maintaining impartiality

The effectiveness of an ADR systemdepends not only on the selection and training ofcredible mediators or arbitrators, but also onprocedures to maintain their impartiality (andthe perception of impartiality), as well asprocedures to monitor and correct poorperformance.

Impartiality is a straightforwardprinciple, but one that allows a wide range ofinterpretations in practice. For example, thirdparties in some cultures may take a very strongdirective role to push disputants towardparticular outcomes that meet their interests,while third parties in other cultures would beseen as biased if they advocated for a particularoutcome, even if they agreed on its fairness.Nevertheless, some guidelines on impartiality(or non-partisanship) may apply across cultures:

• In general, mediators and arbitrators shouldnot favor the interests of one disputant overothers in any dispute.

• ADR providers should be required to informall disputants of financial or personalrelationships with any disputant.


• Disputants should agree jointly on the choiceof an ADR provider, or have a veto over thatchoice;

• Salaries or fees for ADR providers should bepaid by an intermediary organization, orshared with some rough equality (straight orincome-adjusted) by all parties to a dispute.

Oversight of Sri Lanka’s MediationBoards

The Mediation Boards in Sri Lanka operate withseveral forms of oversight. The failure of theConciliation Boards ten years earlier taught theprogram designers to employ carefulmechanisms for monitoring bias andperformance. Each Mediation Board is overseenby a mediation coordinator. Each coordinator isresponsible for approximately 20 MediationBoards in a given area and visits 4-5 Boardsevery week. During these visits, the coordinatorobserves the mediators in action, offers advice,and interviews participants if problems areevident. Regular reports are submitted to theMediation Commission (responsible foroversight of the entire system) based on thesevisits, and mediators are evaluated on theirperformance and their attendance record. Ifproblems or complaints occur, the Commissionmay assign a team of three coordinators toinvestigate complaints. To ensure that thecoordinators do not become partial to any givendistrict or Mediation Board, the coordinators arerotated to a new district every three years.(See Sri Lanka Case Study.)

It is not always necessary or appropriate,however, for ADR third parties to recusethemselves simply because they have ongoingrelationships with one or more of the disputants.As discussed above, those ongoing relationships(and even the social pressure that the neutralmay bring to bear on some of the parties) maybe critical to their ability to resolve the disputein a way that satisfies the parties. In fact, asnoted in the Bangladesh Case Study, somesystems intentionally choose mediators who are

likely to have a relationship with the parties tothe disputes.

Cultural norms may help inform thedesign of mechanisms for preservingimpartiality. In Bangladesh, village mediationcommittees are composed of a minimum of threemembers for each mediation. Not only does thiscomport with the traditions of the region, but theuse of a panel of mediators helps limitsystematic corruption or bias.

In some countries, the laws authorizingADR include provisions designed to preventconflicts of interest and bias. In Bolivia, forexample, the Arbitration and Conciliation Lawincludes criteria for the disqualification of anarbitrator. These criteria include: economicinterest in the case or financial relationship withone of the parties, defined legal or bloodrelationships, known opinions on the disputethat would prejudice the outcome, and intimatefriendship or hostility with one of the parties.(See Bolivia Case Study.)

c. Oversight

Most effective systems employ someform of ongoing oversight of ADR mediatorsand arbitrators, including observation by casemanagers, investigation of complaints fromparties, and monitoring of results. Retrainingand re-certification is advisable to maintainADR third parties' commitment and ability toremain impartial. The Madaripur Legal AidAssociation (MLAA) in Bangladesh hasestablished a system for observation ofmediations, and of oversight of the mediators bya "monitoring cell" within the service. Thisgroup has a target of 550 monitoring visits eachyear.

Mediation workers can be terminated if toomany complaints are filed against them, or if the monitoring cell believes they are notfunctioning properly. (See Bangladesh CaseStudy.)


2) Find or create a sustainable source offinancial support.

Several potentially successful ADRsystems have been crippled by lack ofsustainable financial support. The financial costof operating an ADR system can vary widely.One of the most widely respected systems, theMediation Boards in Sri Lanka, operates veryinexpensively with volunteer mediators(although as noted elsewhere, the increasingburdens on these mediators call into question thelong-term viability of the volunteer system).Other systems operate as permanent centers,incurring rent, staff, and other operational costs.Whatever the cost of the system, the source ofongoing funding, either government budgetarysupport or long-term donor support, should beidentified as part of the design process.

IMSSA’s Funding Mix

In South Africa, IMSSA has developed severalsources of financial support for its workmediating labor disputes. About 20% of itsrevenues come from fees for mediation servicespaid by corporations and labor unions. Theremainder of its budget has been funded byvarious donors, including the European Unionand USAID. The majority of the funds are usedto pay mediators and arbitrators, about $450-600per case. (See the South Africa Case Study.)

The project design team should considercreative models for financial support. Forexample, in the Philippines, the voluntaryarbitration service of the National Conciliationand Arbitration Board (NCMB) is supported bya Special Voluntary Arbitration Fund (SVAF),which subsidizes the costs of the arbitrationprocess for union-management disputes. TheFund receives registration fees, which employerspay when registering a Collective BargainingAgreements with the Ministry of Labor.

As noted above, the legal framework forADR may influence the financial sustainability

of the system. In Ukraine, it is illegal for NGOsto charge fees for services. The UkraineMediation Group depends on charitabledonations from donors, membership dues, andcontributions from mediators who receive directpayment for their services from users. Theconstraints of the current legal system threatenthe sustainability of the program. (See UkraineCase Study.)

3) Create an effective outreach andeducation program to reach users.

The success of a system is linked to thelevel of confidence users have in the system.This level of confidence can be increased by theamount of energy focused on education ofpotential users. In addition, disadvantagedmembers of societies are sometimes effectivelydenied access to public processes because theyare unaware of their options. Outreach effortscan help increase their access to disputeresolution programs.

a. Outreach and education for users

Sometimes, simple publicity campaignsto raise public awareness of the ADR option isthe most important factor for success. InUruguay and Argentina, lack of publicawareness of court-annexed ADR in the pastseemed to have been a major factor limiting theimpact of the system (Blair et al., 1994). InEcuador, coordinated public relations supportfrom the press and government was important inestablishing four mediation centers between1993 and 1996. (See CIDES, 1993-1996.)

Outreach and education efforts mayrequire innovative techniques, particularly toreach populations with low levels of literacy. InSri Lanka, radio and television programs havehelped inform and educate the population aboutthe Mediation Boards and their procedures.Handbills, community workshops, and unionand workplace presentations have also been usedeffectively in many countries.


When new ADR systems are based onimprovements to existing structures, theinformation campaign may need to focus on thechanges to those structures under the newsystem. The outreach efforts in Bangladeshfocused less on notifying potential users aboutthe service than on informing women about thechanges in the system. (See Bangladesh CaseStudy.)

Extensive outreach and educationcampaigns may be unnecessary for grassrootscommunity programs, or for programs focusedon particular sectors of the community whereinformation about the program may spread byword of mouth. The widespread use of theIMSSA mediation and arbitration services inSouth Africa and the use of community justicecenters in local neighborhoods both succeededwithout extensive outreach campaigns. Usersatisfaction and a positive reputation wereessential for this development. (See SouthAfrica Case Study.)

b. Education for stakeholders

Even when a system is widely known,and when it fits traditional and cultural norms, apublic relations effort can be important to thesuccess of the program. In Sri Lanka, forexample, the Mediation Boards are quite widelyknown by the public. A public educationcampaign has been important, however, forwinning over the support of community officialswho are critical to the implementation of theprogram. More than 900 stakeholder workshopshave been conducted across Sri Lanka during thepast six years with the intent of educating localmagistrates, police chiefs, judges, and villageleaders. Winning the support of village leadershas been important since they are responsible forboth publicizing the Mediation Boards as well asencouraging "defendant" parties to attend. Theyare also important monitors and enforcers of theagreements.

Likewise, education and public relationsefforts are aimed at the legal profession in Sri

Lanka to encourage their support of theMediation Boards. Some lawyers haveexpressed concern that settlements have notfollowed legal precedents or requirements.Education efforts are now aimed at bringinglawyers into the system to help inform mediatorsof legal requirements, and to gain legalcommunity support for the system. (See SriLanka Case Study.)

4) Site ADR programs in convenientlocations and create support servicesto overcome barriers.

Outreach and education may beinsufficient to enable disadvantaged parts of thepopulation to use ADR programs if they areunable to travel to ADR program sites or cannoteffectively use the programs. Once the initialneeds assessment identifies barriers to usage,program designers should identify ways ofovercoming those barriers. Siting the programsin locations convenient, hospitable, andaccessible for the target population will beimportant.

Many users may need guidance on theirdispute resolution options, including their legalrights and the steps necessary to ensure them. InBangladesh, the Madaripur Legal AidAssociation provides counseling for disputantsto educate them about their legal options, adviceregarding the best use of those options,information about the relationship between ADRand the court system, and assistance in preparingthemselves for either mediation or litigation.Although the MLAA was initially established toprovide assistance for users of the formal courtsystem, mediation services now form themajority of its work. The program continues toprovide legal assistance in the courts forimpoverished clients who are unable to resolvetheir dispute through mediation. This range ofservices and advice improves the real access fordisadvantaged users to the full range of legaloptions. (See Bangladesh Case Study.)


Some users may be deterred byconditions unrelated to the design of the systemitself. For example, some workers are unable totake time away from work to appear before acourt. Others may face intimidation, loss ofwages, or dismissal if they bring labor-relatedgrievances to the attention of any authority.Program designers should consider whether theyneed to implement legal protections for users ofthe system to prevent such intimidation.

In 1969, Mexico established the Boardsof Arbitration and Conciliation to help resolvelabor disputes. The boards failed for a variety ofreasons, including corruption, lack ofenforcement, and the existence of unethicalagents who would skim a large part of anyaward as compensation for representation beforethe boards. The system did provide, however,for workers' travel costs, the postponement ofattorneys' fees until after a settlement had beenreached, and the continuation of employmentand wages during the course of the proceedings.These legal protections were inadequate to makethe system successful, but they were essential toensure worker participation in the system.(See Volkmar Gessner, 1986.)

5) Establish effective procedures for caseselection and management.

ADR systems can develop a poorreputation if they attempt to resolve disputes forwhich they are not designed or intended.Effective screening procedures are important toensure the efficiency of the system and areputation for effective case management.

Any ADR system will fail in resolvingdisputes which do not fit the criteria for whichthe system is designed. For example, mediationcannot succeed when the parties to the disputedo not accept mediation and do not activelyparticipate in the process. Likewise, facilitatednegotiation systems are likely to fail when oneparty has a superior level of power or educationand can outmaneuver the other party. Similarly,a dispute in which one party benefits from delay

is also unlikely to be resolved through a processin which participation is voluntary.

A successful program design shoulddevelop case selection criteria that will fit thedesign and purpose of the process, and ensurethat cases which are not likely to be resolvedthrough the ADR process are referred to thecourts or some other forum. The Centro deMediación, in Costa Rica, created clear criteriafor screening cases prior to acceptance. Thisfilter ensured that the mediators had a reasonablechance of success in the cases that came beforethem, and kept out cases that were more suitedto a formal legal process. The careful evaluationof cases prior to acceptance led to a high level ofsuccessful case resolution for the center and apositive reputation among the target populationof disadvantaged and unemployed residents.(See Eduardo Garro, 1995 and 1996.)

6) Establish effective procedures forprogram evaluation.

Evidence of program impact isimportant for building users' confidence in thesystem, and for persuading donors to invest inthe system. Program evaluation is also criticalfor ongoing improvement of the program. ADRsystems are, however, notoriously difficult toassess and evaluate, even in the United Stateswhere data are relatively available and reliable.

Baseline data are especially important tocollect prior to program implementation. Thesedata should include: the number of cases ofvarious types processed each year; the targetconstituencies involved in each type of case; theaverage time between case filing and dispositionfor a variety of types of cases; the average costof litigation; and the users' perception of fairnessof outcome. This data may be gathered as partof the initial assessment process.

The ADR system itself should establishprocedures for collecting and processing dataregarding its operation. This data should includethe same information noted above, as well as


any case management and disposition datanecessary to monitor the performance ofindividual mediators or arbitrators. Additionalinformation relevant to specific desiredoutcomes or development objectives should alsobe collected. The program design shouldinclude a process for reviewing the data on aregular basis.

Cultural norms may influence the designof appropriate evaluation systems. In Ukraine,the years of authoritarian rule contributed to aclosed society and a general fear of disclosure.The Ukraine Mediation Group has found thatusers of mediation services are often reluctant toshare information or data about the mediationprocess. Efforts to gather data have beenthwarted by a general reluctance to discloseinformation in surveys or follow-up calls. Insuch circumstances, program designers mayneed to develop creative alternatives to follow-up surveys. (See Ukraine Case Study.)

* * *

Conclusion 48

Part VIII

ConclusionAs discussed in the Guide, ADR

programs can serve as useful vehicles forpromoting many rule of law and otherdevelopment objectives. Properly designed ADRprograms, undertaken under appropriateconditions, can support court reform, improveaccess to justice, increase disputant satisfactionwith outcomes, reduce delay, and reduce the costof resolving disputes. In addition, ADR programscan help prepare community leaders, increasecivic engagement, facilitate public processes formanaging change, reduce the level of communitytension, and resolve development conflicts. Thechart on page 50, Developing an ADR Program,provides in graphic form an overview of theissues covered in the Guide.

An advantage of informal ADR systemsis that they are less costly and intimidating forunderprivileged communities, and therefore tendto increase access to justice for the poor. Thesesystems are also less expensive for the state, andcan be more easily placed in locations that willimprove access for underserved populations. It isnot possible, based on available data, to measureaccurately ADR's ability to increase access orADR's cost relative to formal litigation systems. This inability to measure accurately, however,does not mean that the impact is not observable orsignificant.

Although ADR programs can accomplisha great deal, no single program can accomplish allthese goals. They cannot replace formal judicialsystems, which are necessary to establish a legalcode, redress fundamental social injustice,provide governmental sanction, or provide acourt of last resort for disputes that cannot beresolved by voluntary, informal systems.

Furthermore, even the best-designed ADRprograms under ideal conditions are laborintensive and require extensive management.

In the development context, particularissues arise in considering the potential impactsof ADR. First, some are concerned that ADRprograms will divert citizens from traditional,community-based dispute resolution systems. This study has found a number of instances inwhich ADR programs have been effectivelydesigned to build upon, and in some casesimprove, traditional informal systems. Second,while ADR programs cannot handle well disputesbetween parties with greatly differing levels ofpower, they can be designed to mitigate classdifferences; in particular, third parties may bechosen to balance out inequalities amongdisputants. Third, there is no clear correlationbetween national income distribution and ADReffectiveness. ADR programs are servingimportant social functions in economies asdiverse as those of the United States, Bangladesh,South Africa, and Argentina. Finally, it is notclear from the evidence to date whether ADRprograms are more suitable for civil or common-law jurisdictions. ADR programs are operatingeffectively within both, but not enough data existsto compare success rates under the two types oflegal systems.

This Guide is a first step inunderstanding the strengths and limitations ofintroducing ADR within rule of law programs.While past and present ADR projects haveprovided some significant insights into ADR,there is much still to be learned. More analysis isneeded on the range of possible strategies forusing ADR to support judicial reform, reduce

49 Conclusion

power imbalances, and overcome discriminatorynorms among disputants. Another importantissue for study is how ADR programs may bereplicated and expanded to the national levelwhile maintaining sufficient human and financialresources.

These and other questions about ADR'seffectiveness can only be answered well byanalyzing evidence gathered from ADR projects.Effective monitoring and evaluation of ADRsystems are hard to find in developing anddeveloped countries alike. Present and futureADR projects should have systematic monitoringand evaluation processes in place to ensure notonly effective programs, but also continuedlearning.

This Guide mentions ADR's ability toadvance development objectives other than therule of law, such as facilitating economic, socialand political change, reducing tension in acommunity, and managing conflicts hinderingdevelopment initiatives. Further exploration ofnon-rule of law uses of ADR is critical tocomplete the picture of the range of ADR'sapplications. More in-depth research andanalysis in this area would be extremely useful todevelopment professionals and others seeking tounderstand the strengths and limitations of ADRprograms in developing and transitional societies.

* * *

Appendix A 1

Appendix A

TAXONOMY OF ADR MODELS FROM THEDEVELOPED AND DEVELOPING WORLD1

1The definitions and concepts provided below are drawn from a number of sources listed in Appendix D, WorkingBibliography, Section III., C.

Introduction

Alternative Dispute Resolution (ADR) includes practices, techniques and approaches forresolving and managing conflicts short of, or alternative to, full-scale court process. The variety of ADRmodels found in developed and developing countries may be described in two fundamental ways: basicADR processes, which include negotiation, conciliation, mediation, and arbitration; and hybrid ADRprocesses, in which specific elements of the basic processes have been combined to create a wide variety ofADR methods (e.g., mediation is combined with arbitration in med-arb.). Hybrid ADR processes mayalso incorporate features found in court-based adjudication; for example, the minitrial mixes anadjudication-like presentation of arguments and proofs with negotiation.

This taxonomy provides definitions of basic and hybrid ADR methods used in private,governmental, and court-connected ADR. The definitions reflect common usage among ADRprofessionals, the majority of whom are from developed countries. Wherever possible, an example of acountry which has implemented individual ADR models is indicated, along with a short citation to arelevant case study or document in the Working Bibliography for further reference. While this taxonomy isnot a catalogue of traditional or indigenous dispute resolution methods, an effort has been made to directreaders to developing world examples in which features of traditional dispute resolution have beenincorporated in ADR.

Following the definitions section is an ADR Chart which provides an overview of ADRprocesses. They are organized on a continuum reflecting the role of a third-party in the process: first, unassisted negotiation (without third party involvement); second, facilitated negotiation withoutadvisory opinion (a third party assists the parties in resolving their dispute, but provides no advisoryopinion); third, facilitated negotiation with advisory opinion (third party does issue a non-binding,advisory opinion); and fourth, ADR with binding opinion (third party issues opinion binding thedisputing parties). Another chart, Examples of ADR in Action, lists examples of ADR programs by typeof dispute and ADR provider.

2 Appendix A

Background ADR terms and concepts:

Court-connected ADR: ADR processes that are linked formally to the governmental justice system; suchADR activities are authorized, offered, used, referred by, or based in the court system. Court-basedprograms and court referrals to private ADR services are covered by this term. Agreements arising out ofcourt-connected ADR may be enforceable as court orders. Court-annexed ADR: ADR programs orpractices authorized and used by the court system.

Facilitation: Refers to a process by which a third-party neutral helps the parties reach consensus ondisputed issues. "A mediator is a facilitator; an arbitrator is not." (CPR Deskbook 1993, p. 31.)

Impartiality/Neutrality: When discussing the third party intervener, impartiality refers to the third party'sdisinterestedness in the dispute— s/he has no personal stake or interest (financial or otherwise) in thesituation. On the other hand, a neutral third party has no inclination one way or another regarding thedispute or the disputants. It may be said that finding an impartial third party is easier than finding a neutralone.

Mandatory / Voluntary: These terms refer to how disputes enter ADR processes. If the parties arecompelled to use ADR (by the court or statute, for example), then the use is mandatory. If the use is basedwholly on the consent of all the parties, then it is voluntary.

Nonbinding / Binding: Where the disputants are required to accept and respect the outcome of the ADRprocess, such as third party opinions, that process is binding. ADR outcomes that are advisory only are afeature of nonbinding processes. As a rule, disputants are not bound by an outcome or resolution inADR, unless they agree to be bound. (There are exceptional situations of mandatory binding arbitration.)

Definitions of ADR Models

I. Basic ADR Models

A. Negotiation: The most common form of dispute resolution, negotiation is the process by which theparties voluntarily seek a mutually acceptable agreement to resolve their common dispute. Compared withprocesses involving third parties, generally negotiation allows the disputants themselves to control theprocess and the solution.

Examples: Nicaragua— negotiation training (Lytton 1997); South Africa Case Study— negotiation ofcommunity disputes; Indonesia— environmental conflict (Moore 1995).

B. Conciliation: A process in which a third party meets with the disputants separately in an effort toestablish mutual understanding of the underlying causes of the dispute and thereby promote settlement in afriendly, unantagonistic manner. Often the first step, and at times sufficient, to resolve disputes.

Examples: South Africa Case Study— Commission for Conciliation, Mediation, and Arbitration; BoliviaCase Study; Colombia— Bogota Chamber of Commerce centers (DPK Consulting 1994); U.S.A.—historically used in some labor disputes as a step prior to arbitration; India— People's Courts "Lok Adalat"(Whitson 1992); Japan— auto accident victims and insurance companies (Moriya 1997) (NB: some

Appendix A 3

practitioners use the term "conciliation" to describe processes that range from the above definition ofconciliation to mediation.)

C. Mediation: A voluntary and informal process in which the disputing parties select a neutral third party(one or more individuals) to assist them in reaching a mutually-acceptable settlement. Unlike a judge orarbitrator, the mediator has no power to impose a solution on the disputants; instead, the mediator assiststhem in shaping solutions to meet their interests. The mediator's role and the mediation process may varysignificantly, depending on the type of dispute and mediator's approach.

Mediators can employ a wide-range of techniques, e.g.: assist parties to communicate effectively and todevelop a cooperative, problem-solving attitude; identify parties' underlying interests; identify and narrowissues; transmit messages between parties; explore possible options for agreement and the consequences ofnon-settlement.

Examples: South Africa— Case Study— IMSSA, victim-offender mediation; Sri Lanka Case Study—Mediation Boards; Indonesia— environmental disputes (Moore 1995); Malaysia— inter-ethnic disputes(Othman 1996); India— civil and criminal cases (Kassebaum 1989);USA— community mediation (McGillis1997), mandatory civil case mediation in North Carolina (Clarke et al. 1995); Bangladesh Case Study—community mediation based on indigenous practice.

D. Arbitration: An adjudicatory dispute resolution process in which one or more arbitrators issues ajudgment on the merits (which may be binding or non-binding) after an expedited, adversarial hearing, inwhich each party has the opportunity to present proofs and arguments. Arbitration is procedurally lessformal than court adjudication; procedural rules and substantive law may be set by the parties.

In court-annexed arbitration, one or more arbitrators, usually lawyers, issue a non-binding judgment onthe merits after an expedited, adversarial hearing. The arbitrator's decision addresses only the disputedlegal issues and applies legal standards. Either party may reject the non-binding ruling and proceed to trial;sometimes, cost sanctions may be imposed in the event the appellant does not improve his/her position incourt. This process may be mandatory or voluntary.

Examples: USA— used in federal and state courts, mainly in small and moderate-sized tort and contractcases, where the costs of litigation are often much greater than the amounts at stake; Japan— appellateADR (Iwai 1991); Bolivia Case Study— pilot project.

Private (v. court-annexed) arbitration may be "administered"— managed— by private organizations, or"non-administered" and managed by the parties. The decisions of arbitrators in private arbitration may be non-binding or binding. Binding arbitration decisions typically are enforceable by courts and not subjectto appellate review, except in the cases of fraud or other defect in the process. Often binding arbitrationarises from contract clauses providing for final and binding arbitration as the method for resolvingdisputes.

Examples: South Africa Case Study— IMSSA; Thailand— commercial arbitration (Worawattanamateekul1996); Bolivia case study— Chambers of Commerce centers.

II. Examples of Hybrid ADR Models

A wide variety of hybrid models have emerged in developed and developing countries. Below are someexamples of hybrids found connected to courts in commercial and government settings.

Appellate ADR: Appellate court programs use mediation in mandatory, pre-argument conferences in

4 Appendix A

cases that appear most likely to settle; mediators are typically staff attorneys or outside lawyers.

Example: USA— common in federal and state appeals courts.

Early Neutral Evaluation (ENE): A court-based ADR process applied to civil cases, ENE brings partiesand their lawyers together early in the pretrial phase to present summaries of their cases and receive anonbinding assessment by an experienced, neutral attorney with expertise in the substance of the dispute, orby a magistrate judge. The evaluator may also provide case planning guidance and settlement assistance; insome courts, it is used purely as a settlement device and resembles evaluative mediation.

Example: USA— Developed during the mid-1980s in the San Francisco federal court, ENE is now used inthe U.S. in state and federal courts.

Fact-Finding: A process by which a third party renders binding or advisory opinions regarding factsrelevant to a dispute. The third party neutral may be an expert on technical or legal questions, may berepresentatives designated by the parties to work together, or may be appointed by the court.

Judge-Hosted Settlement Conference: In this court-based ADR process, the settlement judge (ormagistrate) presides over a meeting of the parties in an effort to help them reach a settlement. Judges haveplayed a variety of roles in such conferences, articulating opinions about the merits of the case, facilitatingthe trading of settlement offers, and sometimes acting as a mediator.

Examples: USA— This is the most common form of ADR used in US federal and state courts; Japan—judge as neutral may implement three ADR procedures (Jardine 1996).

Med-Arb., or Mediation-Arbitration: An example of multi-step ADR, parties agree to mediate theirdispute with the understanding that any issues not settled by mediation will be resolved by arbitration,using the same individual to act as both mediator and arbitrator. Having the same individual act in bothroles, however, may have a chilling effect on the parties participating fully in mediation. They might believethat the arbitrator will not be able to set aside unfavorable information learned during the previousmediation. Additional related methods have evolved to address this problem:

In Co-Med-Arb, different individuals serve as neutrals in the arbitration and mediation sessions, althoughthey both may participate in the parties' initial exchange of information. In Arb-Med, the neutral first actsas arbitrator, writing up an award and placing it in a sealed envelope. The neutral then proceeds to amediation stage, and if the case is settled in mediation, the envelope is never opened.

Minitrial: A voluntary process in which cases are heard by a panel of high-level principals from thedisputing sides with full settlement authority; a neutral may or may not oversee this stage. First, partieshave a summary hearing, each side presenting the essence of their case. Each party thereby can learn thestrengths and weaknesses of its own case, as well as that of the other parties. Second, the panel of partyrepresentatives attempts to resolve the dispute by negotiation. The neutral presider may offer her opinionabout the likely outcome in court.

Court-based minitrial: a similar procedure generally reserved for large disputes, in which a judge,magistrate or nonjudicial neutral presides over a one- or two- day hearing like that described above. Ifnegotiations fail, the parties proceed to trial.

Examples: Used in some US federal districts. (CPR 1993, p. 25.)

Appendix A 5

Negotiated Rule-Making, Regulatory Negotiation or "Reg-Neg": Used by governmental agencies as analternative to the more traditional approach of issuing regulations after a lengthy notice and commentperiod. Instead, "agency officials and affected private parties meet under the guidance of a neutralfacilitator to engage in joint negotiation and drafting of the rule. The public is then asked to comment onthe resulting, proposed rule. By encouraging participation by interested stakeholders, the process makesuse of private parties' perspectives and expertise, and can help avoid subsequent litigation over the resultingrule." (CPR 1993, p. 149.)

Ombudsperson: An informal dispute resolution tool used by organizations. A third party "Ombudsperson"is appointed by the organization to investigate complaints within the institution and prevent disputes orfacilitate their resolution. The Ombudsperson may use various ADR mechanisms (e.g., fact-finding,mediation) in the process of resolving disputes.

Examples: Japan— Civil Liberties Bureau (Rosch 1987).

Private Judging: A private or court-connected process in which parties empower a private individual tohear and issue a binding, principled decision in their case. The process may be agreed upon by contractbetween the parties, or authorized by statute (in which case it is sometimes called "Rent-a-Judge").

Settlement Week: Typically, a court suspends normal trial activity for the week and with the help ofvolunteer lawyers, mediates long-pending civil cases. Mediation sessions may last an hour or two.Unresolved cases go back on the court's docket.

Examples: USA— used more widely in state than federal courts.

Summary Jury Trial: A flexible, voluntary or involuntary non-binding process used mainly to promotesettlement in order to avoid protracted jury trials. After a short hearing in which the evidence is provided bycounsel in abbreviated form (but usually following fixed procedural rules), the mock jury gives a non-binding verdict, which may then be used as a basis for subsequent settlement negotiations.

Summary Bench Trial: Like summary jury trial, except that presiding neutral provides an advisoryopinion.

Two-Track Approach: Used in conjunction with litigation, representatives of disputing parties who are notinvolved in the litigation conduct settlement negotiations or engage in other ADR processes. The ADRtrack may proceed concurrently with litigation or during an agreed-upon hiatus in litigation.

Examples: USA and Japan— useful when litigation has become acrimonious or when suggestion ofsettlement would be perceived as a sign of weakness (Jardine 1996).

Appendix A

ADR Taxonomy

Unassisted Negotiation Facilitated Negotiation(No Advisory Opinion)

Facilitated Negotiation(Advisory Opinion)

Binding Opinion

n NEGOTIATION

n Minitrial (without neutral)

n Two-Track Approach

n CONCILIATIONn MEDIATION

n Appellate ADR

n Judge-HostedSettlement Conference

n Minitrial(with neutral/no evaluation)

n Reg-Neg

n Ombudsperson(without report)

n NON-BINDINGARBITRATION

n Early Neutral Evaluation

n Fact-Finding – Advisory

n Summary Bench Trial

n Summary Jury Trial

n Ombudsperson(with report)

n Minitrial(neutral, evaluation)

n BINDING ARBITRATION

n Fact-Finding -- Binding

n Private Judging

ààààààààààààThird Party’s Role in Crafting Outcome Increasesààààààààààà

Appendix B

INTRODUCTION TO CASE STUDIES

There are five case studies annexed to this Guide. Each case study examines an ADR program in adeveloping/transition country.

The five case studies are:

Bangladesh: NGO-supported Community MediationBolivia: Private Mediation and Arbitration of Commercial DisputesSouth Africa: NGO Mediation and Arbitration of Labor DisputesSri Lanka: Government-Supported Community MediationUkraine: NGO Mediation of Civil and Commercial Disputes

The cases are designed to:

° Give USAID staff concrete examples of ADR in action.

° Highlight key issues that USAID staff need to consider when deciding whether to supportan ADR program.

° Draw lessons on program design and implementation strategies from field experience.

The case studies use the following format:

Key Points: A one-page summary of the case. The Key Points page briefly describes the ADR program,and highlights the most important lessons about program goals, design, operations and impacts.

Program Description: A short description of the ADR program's origins, goals, design, operation andimpact.

Program Analysis: An explanation of key factors that influenced program goal-setting, design, operationand impact.

Program Assessment: An assessment of the program's success in meeting its goals, the most importantchallenges the program must meet to maintain/increase its impacts, and steps that program staff might taketo meet these challenges.

Bangladesh Case Study 1

Bangladesh: NGO-Supported Community MediationKey Points

Description: Bangladesh's court system is unresponsive to the needs of the poor, and its traditional villagedispute resolution institutions are biased against the interests of women. Based on a 1995 national customerneeds survey, USAID-Bangladesh defined local participation and increased access to justice (especially forwomen) as a strategic objective, and improved ADR as an intermediate result (IR).

The case profiles a community mediation program developed to meet USAID's ADR IR. The program ismanaged by the Maduripur Legal Aid Association (MLAA), a Bangladeshi NGO. The MLAA communitymediation program uses a multi-tier structure of village mediation committees supported by MLAA field workersto deliver ADR services. Local mediators are selected, trained and supervised by MLAA field workers inconsultation with local officials, religious, and social leaders. The local committees meet twice a month tomediate village disputes, free of charge. Most disputes involve property or marital problems. Agreements arevoluntary and are not enforceable in court. The MLAA program currently mediates roughly 5000 disputesannually and resolves roughly two-thirds of them. Satisfaction with the program is high. Most users prefer theprogram both to the traditional village dispute resolution system and to the courts.

Goals: Reform of the court system is considered politically and institutionally unattainable for the foreseeablefuture. The ADR program seeks to improve access to justice by providing a substitute for the courts and fortraditional dispute resolution systems which are biased against women. Program goals and design were driven bya needs survey that focused directly on potential user groups.

Design: The program design builds on the traditional (shalish) system of community dispute resolution, whichhas much greater legitimacy than the court system. The MLAA program reduces the shalish system's culturalbias against women through legal education for local mediators and disputants, and through the selection ofwomen as mediators.

Operation: To ensure the quality of dispute resolution services, the program provides training and ongoingoversight for mediators and field workers. To minimize costs, the program uses a word-of-mouth outreachstrategy, volunteer mediators, and simple procedures with a minimum of written documentation. Although it ishighly cost-effective compared to the courts, the program is not financially self-sustaining. To ensuresustainability, it must continue to secure grants, begin charging user fees, or both.

Impact: MLAA's community mediation program has demonstrated the potential for community mediation toincrease access to justice for disadvantaged rural groups, especially women. Its impact is limited primarily by thesmall scale of the program relative to national needs. Scaling-up to the national level would require substantialadditional financial and human resources.

2 Bangladesh Case Study

BANGLADESH CASE STUDYI. DESCRIPTION1

A. Program Origins and Goals

Five Bangladeshi NGOs have been sub-contracted by the Democracy Partnership (whichincludes USAID, the Asia Foundation, andBRAC— Bangladesh's largest NGO) to deliveron Intermediate Result 5 within USAID'sstrategic objective "broadened participation inlocal decision making and more equitable justice,especially for women." IR5 states that the"quality of alternative dispute resolution [inBangladesh be] improved." Each of theorganizations has designed their delivery vehicleslightly different. Of these five, two NGOprograms were observed and one of them will bedescribed in detail here — the Madaripur LegalAid Association (MLAA).

MLAA was established in 1978 as alegal aid foundation. In 1981, MLAA beganfiling cases in court on behalf of their clients. Thefounder, however, was not satisfied with eitherthe treatment or the results that the poor receivedin court. Therefore, in 1988, MLAA began tofocus on mediation as a means of addressingclient needs. In responding to the DemocracyPartnership's RFP, MLAA was seeking theresources to continue this mediation work. According to the MLAA staff, the law is not asufficient means of redress for the poor,predominantly due to the fact that the poor do nothave the resources to effectively manipulate thecourt system. In addition, corruption is rampant(adding to the financial burden of anyone seekingredress through the courts) and the poor do notperceive that they are treated fairly by thesystem.

The procedures used by MLAA arebased on a long tradition of mediation inBangladesh, an indigenous method called"shalish". The MLAA has constructed aprogram which builds on the existing indigenous 1 Conducted by Elizabeth McClintock, CMGConsultant, September, 1997.

system and in a sense, “remodels” it. TheMLAA program is especially sensitive to issuesof religion and tradition, while being careful tooperate within the law.

MLAA has recently expanded theirprogram beyond providing legal aid andmediation services directly to rural populations.In 1996, they began to offer training to otherNGOs who are interested in incorporatingmediation into their projects. In 1996 MLAAidentified 21 organizations as partners in 17districts throughout Bangladesh.

The budget for 1996-97 was $70,000and the budget for 1997-98 is $94,315. Sixtypercent of MLAA’s total budget comes from theFord Foundation, with just under 33% comingfrom The Asia Foundation (TAF) and USAID. As the Ford Foundation has indicated it will soonterminate its activities in Bangladesh, it isuncertain as to how the MLAA will cover thisfunding gap in the future.

B. Program Design

–Structure and Staffing

The organizational structure of theMLAA is an elaborate multi-tier structure: thehead office is located in New Town, Madaripur;there are three district offices, Shariatpur,Gopalgonj and Madaripur (the MadaripurDistrict Office is subsumed into the head office);and within each district there are “thana” officesto oversee activities at the “union” level(collections of 10-15 villages). The districtoffices have small staffs of 3-5 people. Thanalevel offices are staffed by 2-3 people who arethe direct supervisors of the mediation workers. These supervisors are required to spend 16 daysin the field every month, both attending toadministrative duties as well as sitting in onmediations. The MLAA desires to have theirprogram replicate many traditionalcharacteristics of shalish; therefore there is nooffice at either the union level or the village level.There are 140 total staff members at MLAA, 25-


30 of whom are located at the head office. Thisdoes not include the volunteers - of which allmediation committees are made up.

The MLAA has formed centralmediation committees in each union comprised of10-12 members selected from the MLAA villagecommittees. The central mediation committeemembers receive a three-day training inmediation and legal awareness at the MLAAhead office. This year, the MLAA held a three-day training for all the women in the unionParishads (local governmental municipal bodies)to raise their awareness about their legal rights,increase their understanding of mediation,increase the number of women implicated in thepublic education process about mediation, and toprepare them to be potential mediators in thefuture.

Each union has one mediation workerassigned to it. Candidates for the position ofmediation worker are required to be from theunion that they will serve in and have at least an11th grade education. An application issubmitted to the MLAA and the five membersub-committee of the governing board (whichincludes influential citizens like prominentBangladeshi social activists, lawyers, etc.) thenhires the staff person. The mediation workersreceive approximately ten days of training fromthe head office prior to taking up their positions.The MLAA also tries to send some staff overseasto receive additional training. For example, twowomen were sent to a training in India last year.

The mediation worker is required totravel throughout the union 15 days per month. The exception to this is in the Shariatpur District,where a lack of resources prevents the MediationWorkers from traveling as frequently. Theresponsibilities of the Mediation Worker includeinvestigating potential cases, which might cometo mediation, encouraging participation in theprogram, and sharing information about laws,regulations, etc. at the village level. TheMediation Worker must be present at allmediations because s/he maintains all records andthe “calendar” of all mediations within the union.

Within each village in the union an

MLAA mediation committee of 8-10 people isestablished. The mediation committee membersare chosen in consultation with the elites of agiven village (socially influential people,teachers, elected officials, social workers, theimam, or religious leader). MLAA focuses onrecruiting women and people from a number ofreligions, especially if the village is a mixed one.The MLAA village mediation committeemembers receive a one-day training in mediationfor approximately 50 people, with additionalrefresher courses. Not all committee membersare generally present at each mediation (althoughthey can be if they wish) due to work and familyobligations.

–Mediation Process

The intake process for mediations isquite straightforward. A poor person will seekout the Mediation Worker or a member of themediation committee in his/her village, whoassists the disputant in filling out the necessaryforms. MLAA specifically targets the poor anddisadvantaged for its services (and thiscorresponds to the objectives set out by USAID),and so the forms include information regardingeducation and income. The mediation workerthen posts a letter to the other party and sets adate for mediation.

Once a mediation begins, the mediationworker will explain the process to the parties andinform them of their right to pursue their case incourt. The mediation worker will sometimes actas the chairperson, although this honor is oftengiven to the most respected "elder" on thecommittee. Clients have some say as to who ison their committee and can request that someonebe excluded. Clients are also permitted to bringanyone they choose to the mediation. (In four ofthe six mediations observed, the women clientsbrought along a male relative for support andcredibility.) A major focus of the mediationprocess is allowing the clients to share theirstories.2 The mediation committee members do a 2 This was especially true in the Banchte Shekhamediation committees. The women interviewedindicated that the mediation committees sponsoredby BS were considered to be "safe spaces" where the


lot of inquiry and generally police the disputantsas they struggle for time to express their views.During the mediations observed, clients werenever cut short because time might be runningout. Instead, the mediation was simply extendedto a next meeting. It generally takes at least 3months to resolve a land dispute andapproximately one month to resolve a familyproblem.3

While complete data is not available forthe entire MLAA program relating to the kindsand number of cases,4 figures are available onthe Shariatpur District. (According to theMLAA staff, these findings can be generalized tothe overall program.) Between July 1996 andJune 1997, new and pending applications formediation totaled 1737. Of these, 944 wereresolved through mediation, 202 disputes werereferred to court, 222 were dropped due to anabsence of necessary papers or the non-appearance of a party, and 396 have been carriedover to the next reporting year.5

An overwhelming number of casesbrought to the MLAA village mediationcommittees are disputes involving property orfamily matters (and sometimes the land disputesinvolve members of the same family).Approximately 59% of the disputes involvedfamily matters and over half of these dealt withdowry payments. Thirteen percent of the total

women could tell their stories without fear of redress.In this and the MLAA project, women clientsseemed to respond much more actively when therewere a number of women on the mediationcommittee. 3 Although, the district coordinator in Shariatpurindicated that it took approximately 5 sittings (2months) to resolve a family matter andapproximately 12 sittings (6 months) to resolve aland dispute. Land disputes take at least one year toresolve in court and the costs to the client are muchhigher than those they incur by using the shalishsystem. 4 The MLAA mediated a total of 5,050 cases lastyear and referred 727 to the courts. The MLAA staffindicated that they mediate approximately 5,000cases every year. 5 Yearly Activities Report, July 1996 - June 1997,p. 17. Madaripur Legal Aid Association.

dealt with property/land and 28% had to do withmiscellaneous matters (e.g. conflicts betweenneighbors).

Agreements are signed by the parties butare never submitted to the court unless thedistrict judge issues a subpoena. Clients putmuch importance on documentation and sign theagreements in front of a crowd. This putspressure on parties to abide by the agreement.(The documentation is a difference fromtraditional mediation where no documentationexists.) No data is available on how manydisputants return to mediation if the settlement isnot respected. Anecdotal evidence indicates thata large majority of the settlements are respectedbecause of the fact that they are reached in thefull view of the community. The mediationworker is responsible for overseeing theimplementation of the agreements. The finalpaperwork is not done (i.e. the case closed) untilthe agreement has been respected. In the case ofnon-settlement, the mediators will make severalefforts to try to resolve the problem beforereferring it to the next level or to court.

If a mediation cannot be resolved at thevillage level, it is referred to the central unioncommittee (also trained by MLAA), then to thethana level, to the district level and finally to thehead office. A case will be referred to districtcourt (the lowest level of courts) if it has gonethrough mediation and failed, if it is a criminaloffense, or if it ends up being a complex landdispute that requires extensive legal knowledge.If a case has gone through the MLAA referralsystem and the MLAA staff decide to refer it tocourt, the MLAA will pick up the court costs forthe disputant. The case is then referred toMLAA’s legal aid division. It costs between200-250 tka to file a case and then costs mountfrom there. On average, it takes 2-4 years toreach a resolution for almost any kind of case inthe courts.

Surveys indicate that user satisfactionwith the MLAA mediation system is quite high.Two hundred villagers in five thanas (in twodistricts) were interviewed about the socialimpact of the MLAA mediation system. Ascompared to traditional shalish, the villagers felt


that the training of mediators impacted on thelawfulness of the resolutions reached in theMLAA mediation system. In addition,respondents said that the MLAA mediationsystem provides them with more "accurateresolutions"— especially since disputes areresolved by consensus.6

II. ANALYSIS

A. USAID-B’s Approach to Project Design

In examining the USAID-funded ADRprogram in Bangladesh, it is important tounderstand the context in which it was developed. USAID Bangladesh has enthusiasticallyembraced USAID Washington’s "re-engineeringgoals," including customer focus, managing forresults, teamwork, empowerment, and diversity. A second important factor is the principle goal ofthe mission: reduction of poverty. The ADR-related relevant strategic objective for reachingthis overall goal is: "Broadened participation inlocal decision making and more equitable justice,especially for women."

USAID-Bangladesh’s approach toproject design is to be more involved in projectdesign, monitoring, and evaluation and rely lesson outside consultants and sub-grantees. Thefirst step USAID-B took to develop the IRs forthe relevant SO was to conduct a rapid appraisalof the needs of the target population. In thisappraisal, respondents were asked to define whatdemocracy meant for them in their daily lives. USAID-B deliberately avoided involvingacademics or others traditionally recognized asexperts in the survey. The concern was thatthese "experts" might identify needs that did notresonate with those USAID-B hopes to serve. Following the rapid appraisal in April 1995,USAID-B developed several results targets orIRs. The IRs and the project design process werethen used to develop a Request For Application(RFA) to solicit partners in achieving the statedIRs. 6 Evaluation on Social Impact of Mediation, p.11. A report prepared by the monitoring and evaluationcell of the Madaripur Legal Aid Association. (1995-96.)

The Asia Foundation (TAF) and BRACresponded with a joint application which wasaccepted by USAID-B; together, the threeorganizations formed the Democracy Partnership. In August 1995 the Democracy Partnershipconducted another survey to determine if the IRswere still accurate. Having further refined theIRs, the Partnership then began choosing NGOsto provide the services. The selection processincluded using the Association of DevelopmentAgencies of Bangladesh (ADAB) as a forum fordescribing the proposed IRs and what thePartnership wanted to accomplish. TAFsubsequently hosted follow-up meetings toexplain the results framework developed by thePartnership and to choose the NGOs to deliverthe IRs. The Asia Foundation is responsible forentering into and documenting subgrantrelationships with all the NGOs selected.

In Bangladesh, government involvementin the development of the program was quitelimited. The Division of External ResourceDevelopment of the Ministry of Finance (ERD)was consulted when the RFA was initiallydeveloped and USAID-B proposed that they jointhe partnership. However, there is no specificgovernment agency assigned to oversee work indemocracy and governance (as it is a non-traditional area of donor assistance), so ERDgave the go ahead to the program but declined toget involved. The government felt that they didnot have the resources or the experience to getinvolved in DG projects and recommended thatUSAID-B use NGOs as service providers. ThePartnership continues to consult and informgovernment officials who are involved in theelection commission and the locally electedbodies (LEBs) of the progress of the programand has shared the USAID results frameworkwith them.

The preceding discussion provides animportant context for understanding howprogram goals were set in Bangladesh. They arevery much driven by USAID goals and objectivesand informed by the rapid appraisals conductedby the Democracy Partnership. The mediationprograms observed were established underIntermediate Result 5, which states that "the


quality of alternative dispute resolution beimproved" by the end of the grant period. Verybroadly, activities under this IR help makedispute resolution through the village mediationcommittees more accessible, equitable, andeffective. Attention is also given to improvingthe quality of dispute resolution conductedthrough union parishads.

More specifically, the goals of theprogram could be categorized under the followingthree headings: reform of the legal system;addressing more pressing social problems; andimproving the quality of the dispute resolutionprocess. The goals of the program with respectto each of these categories are described below.

Reform of the courts: The ADRprograms implemented by Bangladeshi NGOsserve as a substitute to an ineffectual justicesystem, especially for women and the poor. InBangladesh, the poor have no confidence in theallegedly corrupt formal legal system, nor do theyhave the resources to take advantage of it.Knowledgeable observers comment thatultimately, the reformed community mediationsystem may have some impact on reform in theformal system but that realistically, reform willonly happen with overall government reform,which is a long way off. Indeed, in Bangladeshthe link between institutionalizing some form ofADR and addressing pressing social problems isfar stronger. The explicit way in which the ADRprograms are coupled with other social servicesprovided by NGOs clearly demonstrates this.

It is interesting to consider whether ornot improving the shalish committees serves tocreate a "second class" justice system or promptthe disadvantaged to give up their right to pursuecases that might have larger social or politicalimplications for themselves or their communities. The IRs articulated by the DemocracyPartnership and the way in which the twoprograms observed were structured are attemptsto promote the availability of unbiased, qualityADR programs, available to ALL classes ofdisputants. Program designers face an importanttradeoff: increasing immediate access to asystem, which provides tangible relief in the dailylives of users, versus championing the rights of

the poor, especially women, in the larger forumof the national court system. Interviews withboth users and NGO staff implementing theprograms indicated that the population feels theyneed to be informed about their rights beforeadvocating for those rights. The reformedmediation committees have provided them withan opportunity to initiate this education process.7

Address social problems: The primarysocial goal is increased access to justice for thepoor, as well as more equitable and effectivejustice for them. The additional reasons given bythe NGOs surveyed for setting up ADRprograms included ensuring the more effectiveimplementation of their own programs, such asbetter access to and use of family planning, or theimprovement of conditions for women. ADR isjust one of a number of services offered by theseNGOs to fulfill their overall program goals.

Improve process of dispute resolution: Certainly, the directors of the programs examinedindicated a desire to improve the disputeresolution process itself — e.g., make it cheaperfor users, increase fairness and equitableoutcomes and therefore satisfaction of the users. This goal achieves importance, however, in somuch as it is related to the issue of access tojustice for the poor. A collateral benefit is thatthe mediation committee process tends to take farless time than court.

B. Insights from Field Work and SettingProgram Goals

The field work to determine the "needs ofUSAID/Bangladesh's customers" and then to testresulting IRs provided key information used in

7 The MLAA and BS programs both incorporate asignificant amount of legal aid and education aboutrights. BS actually has a team which documents allcases, especially of abuse, which they are called uponto investigate and provide legal counsel. Bothorganizations are especially concerned aboutcreating precedents, either through court cases or byinstitutionalizing a reformed shalish system, whichpromote and affirm the rights of the poor.


goal-setting and project design. The needsassessment was conducted by men and womenfluent in Bangla. The teams interviewed thesample group of hundreds of people in pairs andwere sensitive to gender issues: men interviewedmen and women interviewed women. Theinterviews revealed a number of importantinsights affecting any ADR program:

-- Associations contribute greatly to an improvedquality of life for women and by extension for thevery poor by giving members a greater voice andability to participate in community affairs, aswell as often providing tangible economicbenefits.

-- Access to justice for both men and womenfollows a fairly predictable pattern: it is soughtfirst at the local level through the traditional"shalish" system. If the problem is not resolved,the parties then seek out local governmentleaders, and finally seek redress through thecourts if the issue is not resolved at the lowerlevels. An overwhelming number of disputes aresolved by traditional "shalish" as the poor feelthat they are handicapped when seeking justice atthe other two levels— both in terms of access andimpartiality.

-- Interviewees, and women in particular,expressed an interest in continuing to seekredress for their problems at the local level, if thelocal, informal dispute resolution systems werestrengthened.

-- Regarding women’s concerns, mostrespondents (and women were in general morecritical than men) felt that the “shalish”committee was usually biased, as well as illinformed as to the law and to procedures. Education about legal rights, especially inmarriage and divorce and specific assistance inresolving problems of dowry payments were ofgreatest concern.

-- Several suggestions were made forencouraging the participation of women on localcommittees, for training of shalish, local eldersand union parishad members, and for better

monitoring of shalish judgments.8 Stakeholdersbelieved that the five IRs currently articulatedmet their needs and that it was unnecessary, andperhaps even counter-productive, to formulate anIR focusing on women that was not connected tothe other goals (such as greater participation ofwomen in locally elected bodies, voter education,an improved shalish system, etc.).

-- Finally, government is uniformly considered tobe corrupt and because of this, the poor aredoubly disadvantaged in terms of access tojustice; services or resources intended for themare absconded by officials and a lack of fundsimplies an inability to buy influence.9

USAID then used these insights todevelop the intermediate results framework. ADRprograms designed by local NGOs havecorresponded to the intermediate resultsframework and seem to be delivering on theneeds identified by the ultimate users.

C. Other Factors in Goal-Setting

The decision to initiate ADR programs inBangladesh was driven by two factors: first,USAID-B has determined that the funding ofADR programs is one way in which their overallobjective of reducing poverty in Bangladesh canbe achieved. In this case, ADR is simply ameans of addressing larger social issues,especially access to justice for the poor and theempowerment of women. Second, the local andinternational NGO community in Bangladesh hasrecognized the value-added that ADR programsbring to their other programming activities.

Perhaps the single most importantbackground factor considered in the goal- settingprocess was the program's fit with cultural andinstitutional norms. The shalish corresponds tothe traditions of all religions represented inBangladesh. In addition, access to the shalishdoes not require a high degree of literacy (in fact,most of those who use the system are illiterate)and, given the tight communities in which most

8Validation Synopsis Report submitted by theDemocracy Partnership, August 1995. 9 USAID "D" Team Report. May, 1995 (pp. 1-4) .


Bangladesh citizens live, the shalish processconforms to a basic need to involve thecommunity in any reconciliation process. Despite the distrust of the justice system,building a constituency for ADR, whilechallenging, has been relatively easy when bothtraditional and elected local leaders are capturedby the education process.

Rough parity in the power of classes ofdisputants is another background factor whichcontributes to the success of the system inBangladesh. The system does not really providefor the equalization of power with respect toclass— the middle and upper classes are notcurrently users of the mediation committeesystem but neither are they the target population— but an important goal is to provide disputantswith an opportunity for redress before a disputefesters and escalates. According to many of themediation committee members interviewed, thisis a significant improvement over the shalishsystem.

More importantly, according to thewomen who participate as disputants, themediation committees provide a means ofequalizing power imbalances caused by gender.Most of the women interviewed felt that themediation committee system provides them witha fair and relatively unbiased forum in whichtheir grievances can be addressed— a forum thathas not existed in the past.

The goal-setting process undertaken byUSAID-B initially and ultimately with themembers of the Democracy Partnership greatlycontributed to the buy-in of program goals bymost stakeholders. Ongoing consultation withend users and the government supported theprogram goals. Another step was taken to builda constituency at the local level for theimplementation of the ADR programs.Traditional and elected local leaders were soughtout for their opinions and suggestions, and in thedesign process, an education component wasdeveloped. Traditional leaders are also targetedas potential participants in the mediationcommittees and in many of the programs, theUnion Parishads also receive training inmediation skills, as well as Bangladeshi law and

the rights of citizens.

D. Design Issues

There are four program design issueswhich impact the effectiveness of the ADRprograms in Bangladesh: relation to the courtsystem; outreach and education; ensuring thatthird parties are neutral; and monitoring andevaluation. The design and implementation ofoutreach programs and the selection of thirdparty neutrals are design factors that are withinthe purview of the implementing agencies. Themonitoring and evaluation aspects of theseprograms are driven by requirements from theDemocracy Partnership, but the evaluation itselfis left to the NGO.

–Relation to the Court System

There is no formal relationship betweenmediation committees and the official justicesystem. Therefore, this was not an issue theNGOs had to address when designing theirprojects. It may be said that the very success ofthe mediation system is a result of a failed justicesystem (especially in the eyes of those serving thevery poor in Bangladesh).

The relationship between the twosystems is governed by two things: 1) whether adisputant chooses to pay for court whenmediation fails or when they feel that the court isa more appropriate form of redress; and 2)whether the NGO providing mediation servicesand legal aid will cover the costs of taking aclient's case to court. The NGOs which providemediation services (including training) to thepoor all explicitly state that they operate withinthe law. Indeed, a large part of the training ofmediators in the programs observed includesinforming the candidates about the general lawswithin which they are expected to operate, thelegal rights of the clients who come to them, andthe process that should be followed should aclient decide that they do not want to pursuemediation. In addition, all clients are informed oftheir right to pursue their case in court and theircourt case is not prejudiced should they have


chosen to go to mediation first.10

Another issue for design is sequencing ofthe ADR processes vis-a-vis the court process,which is left completely up to the user. Once acourt proceeding has been initiated, the case maygo to the mediation forum only with the writtenconsent of both parties in the presence of thejudge. A judge does have the right to subpoenadocuments that have been presented as evidencein a mediation, although this happens very rarely.

The absence of a formal link between thejustice system and the mediation committee,while not currently an issue, may becomeproblematic in the future. The tenuous linkmakes it more difficult to ensure that clients havea means of seeking redress if agreements are notabided by. In addition, it means that wealthierpeople are able to take advantage of the poor bytaking a case to court that they know will not beresolved in a timely manner, thus potentiallytying up the resources and disputed property ofthe poorer client for years.11 At the same time,until the court system is reformed to providemore consistent (and real) justice for the poor,there is not much incentive for NGOs and othersproviding mediation services to push for a moreformal link. They are meeting the immediateneeds of their client irrespective of the problemsof the court system. That seems to be the firstpriority of all the organizations interviewed.

Mediation of a Land Dispute

Sufia had gone to court to recover land that hadbeen rented by her family to a tenant farmer andhis sons. At the time she went to reclaim therights to her land, her husband had died and so

10 The Training on Legal Awareness observed inNew Town, Madaripur, offered by the MLAAincluded topics such as family law, Muslim law,implementation of human rights through shalish, thesignificance of women participation in shalishcommittees, and strategies and techniques to managethe mediation session. Training offered 9/16 - 9/181997. Thirteen men and seven women participated. 11 Interview with Sufia. 9/16/97, Shariatpur,Bangladesh. (See sidebar.)

she had to pursue the case on her own. After sixyears in the judicial system, her case was finallyresolved and she was granted the rights to herland. Unfortunately, the man and his sonsrefused to vacate so Sufia had to return to courtto get an eviction notice to give to the police. This often takes 10 or more years.

Soon after Sufia had submitted her evictionrequest to the courts, she decided to go to theMLAA shalish, to see if the matter could beresolved more quickly. Upon hearing that Sufiahad sought redress, the sons came and torturedher. She has terrible scars on her arms (theyused a scythe) as a result of their abuse. Shespent many days in the hospital and the cost toher was 10,000 tka. When the man found outwhat his sons had done, he contributed 2000 tkato her hospital bills and agreed to come tomediation.

At the conclusion of the mediation, (which lasted11 months, with either 8 or 9 sittings— shedoesn't recall the exact number) Sufia was paid120,000 tka for her land. This amount is farbelow the value of the land. The payment wasframed as a lease— because in mediation, Sufiadid not give up her rights to the land and theeviction notice is still pending in court. Sufiafeels that she received some measure of justicefrom the MLAA shalish that she did not receivein court and the results of the shalish aretangible. Before, she would have receivednothing, especially as she has no male relative tohelp her pursue her case.

However, as ADR programs arebecoming more successful in the rural areas,there is a move on the part of government andjustice officials to institutionalize disputeresolution at the village level— creatingsomething called the "grameen" or local court. This would create a formal link between themediation services currently delivered by NGOsand/or people they train and the official justicesystem. Informed observers in Dhaka feel that itis premature to create these Grameen courts asthey would only create another layer ofbureaucracy and would only serve to deny justiceto those very people who need it (and who arecurrently benefiting from the mediation systems


provided by the NGOs). Because the system hasnot yet been reformed, nor is there sufficientimpetus for reform at the national level, there isno means of ensuring that the Grameen courts donot fall prey to the same corrupt influencesaffecting the other parts of the justice system.

–Strategies for Outreach andEducation

There are two important issues withregards to outreach and education. On the onehand, excellent structures exist for the promotionof ADR efforts. On the other hand, suspicion ofthe traditional shalish system, to say nothing ofthe formal court system, remains a challenge thatNGOs must overcome when offering mediationservices. Without a doubt, the high rate ofilliteracy, poverty, and the distance of a portionof the target population from village centerswould prevent users from taking advantage of themediation system if there were not activeoutreach programs.

The MLAA and indeed most if not all ofthe other implementing agencies are building onlegal aid and other social programs and thereforehave more or less "built in" outreach programs.The packaging of ADR with other services isessential to success here when trying to reach thevery poor. Because these programs are built onthe existing shalish system, there is less of a needto overcome cultural suspicion of ADR; education campaigns are focused on changing theattitudes of users with regard to the perceivedbiases of these traditional systems (especiallyagainst women). Other outreach activitiesinclude awareness raising workshops for localelites and union parishad chairmen, encouragingusers to share their experiences with theuninitiated, the more traditional posters andleaflets, as well as training of other NGOs inmediation skills— whether for their use internallyor so that they are then able to train others. Inthe MLAA program, part of the mediationworkers' responsibilities include outreach as theytravel around the union. Other NGOs deliveringon IR5 offer training to local bar associationsand invite district judges to participate inportions of these trainings. This serves tobroaden understanding of mediation and its

potential.

–Impartiality of Third Parties

In Bangladesh, the choice of mediators isvery much culturally driven. Traditional shalishis conducted by elders and respected members ofa community. It is seen as a fairly directiveprocess in which parties are "encouraged", withsubstantial input from the shalish committee, tocome to consensus— often framed as "what isgood for the community." Mediation istraditionally done by committee but thesecommittee members rarely have education inlegal issues or women's rights. There is not ahuman resource pool of experts in family law orland regulation issues which can be drawn uponin rural areas. Indeed, the respect that a personcommands from his or her community is a farmore important qualification than substantiveexpertise. In addition, due to cultural norms,women have very little voice in the communityand therefore do not feel comfortable advocatingfor themselves in traditional shalish. Many ofthe women interviewed indicated that it is biasedagainst them.

In developing the village mediationsystem, NGOs providing training and mediationservices are trying to work within this traditionalsystem. In addition, the qualifications andtraining required of mediators under themediation committee system contribute to theperception of impartiality of mediators. Forexample, MLAA mediation workers must havean eleventh grade education and must be from theunion where they intend to work.12 mediation

12 "One of the cardinal principles of [theMadaripur Mediation Model - MMM] forengagement of mediators is the local affiliation ofthe personnel. In other words, the mediators arechosen from amongst the local people. Mediatorslive and work amongst the people whose disputesthey are called upon to mediate. Unlike judicialpronouncements or third (sic) party arbitration, amediation worker must be familiar with thelocal/societal roots and belongings of the parties, aswell as their specific traditions, customs, and values. By being locals, the MMM mediators ensure thatthey are familiar with all the nuances of local lives,both of the parties directly involved and others who


workers are given 7–10 days of training andreceive regular refresher courses. They are alsomonitored regularly to ensure that they arefulfilling their duties and any complaints are dealtwith. The role of the mediation worker is one ofan administrator, and mediations are conductedunder their supervision by the village or unionmediation committees. The committee structurehelps ensure impartiality. According to the staffat MLAA, a committee is viewed as more fairand democratic than a single person. Thiscontributes to the credibility of the process as thecommittee structure reflects a relevant socialnorm with regards to how problems are resolvedwithin a community.

The MLAA has also improved theeffectiveness of the mediation committees byreducing the perception of bias at the villagelevel. The selection and training of mediators atboth the village and union level also helps toensure a more neutral, unbiased process (inaddition to contributing to community buy-in ofthe reformed system). This is accomplished byensuring that village mediators receive at leastone day of mediation training and that the unionmediators receive a three-day course.

This last point is especially important, aswomen are a large portion of the targetpopulation and have experienced the mostdiscrimination at the hands of the traditionalshalish. In order to increase female participationas mediation committee members, MLAA hastrained the selected (as opposed to elected)female members of the union parishadcommittees in the three districts in which theywork. The objective of these three-day trainingsis to offer legal education, to raise theirawareness about mediation, and to encouragemore women to participate in the new communitymediation process.

Initially, Banchte Shekha (the otherprogram observed in detail) followed the MLAAmodel and established mediation committees atthe village level with no special consideration of

may be indirectly concerned with the outcome of theresolution process." Mediation: Concept,Techniques and Structures. MLAA, p. 10.

women. This proved to be ineffective preciselybecause of the reasons mentioned above: womenfeel that the traditional system is biased againstthem. So creating a system that essentiallyreplicates the previous one did little to encouragetheir participation. In order to increase women'sparticipation, the program was redesigned. Thenew design served not only to empower women,both as participants and as mediators, it hascontributed greatly to the sustainability of theprogram as it is now more directly linked toBanchte Shekha's other activities.

Some disputes continue to be mediatedoutside the reformed system in the three districts.The small amount of data available indicates thatavailability of the traditional shalish coupledwith the lack of information about the MLAA isprobably the biggest reason some disputants stillseek out the traditional shalish.

–Monitoring and Evaluation

In general, monitoring and evaluationtargets for the Bangladesh ADR programs are setby USAID. At the same time, each NGO is freeto operationalize methods for achieving thesetargets. While improvements are necessary in theMLAA monitoring system (specifically,increasing the number of staff available toconduct evaluations and monitor the quality ofthe services provided by the mediation workers),they have established a fairly effective evaluationmechanism.

There is a monitoring cell as part of theMLAA program, with a staff of four and a targetof 550 visits per year. The staff is required tomonitor not only the mediation program but allthe other programs that MLAA offers. Theyobserve mediations as part of the monitoringprocess and ensure that data on the mediationprocess is collected correctly. For example, themediation worker collects all the applications forthe potential mediation of a dispute and alsokeeps all records regarding which have beenaccepted and which have been referred to court,the duration of each mediation, and the results ofthe mediations. This information is provided tothe coordinator at the head office on a monthlybasis. Open format, monthly coordination


meetings are also held at the head office and onerepresentative from each thana attends.

Mediation workers can be terminated.This is generally client driven. Once thesupervisor receives a complaint, the monitoringcell comes for a visit and interviews people todetermine what the problems with mediationworker might be. There is then a review of themediation worker’s performance and dependingon the problem, a grace period established so thatthe Mediation Worker has an opportunity tocorrect the problem. Should the problem persist,the final decision is taken at the headquarterlevel. In 1997, five MLAA staff wereterminated, and two have left to take new jobs.

Dealing with the mediation committeemembers is more problematic because they arevolunteers. The mediation committee memberscannot be terminated, but if the mediation workerreceives complaints or witnesses inappropriatebehavior or simply poor mediation skills, thenthat committee member is sidelined. Thishappens by discouraging them from participatingand by not inviting them to sit on the committeefor mediations.

III. ASSESSMENT

As set out in USAID's strategicobjectives and as enumerated in IntermediateResult 5, a cornerstone of USAID's work inBangladesh is ensuring that the poor anddisadvantaged have access to justice. Inconceiving of the framework for the ADRprogram, the Democracy Partnership hasdeveloped an innovative way for that goal to beachieved. As with any program of this size andcertainly given the obstacles faced in Bangladesh,there is room for improvement. The question of

resources poses the greatest challenge to thesuccess of the ADR program. In particular, thereare three categories of issues that must beaddressed if the ADR program administered byNGOs is to be sustained: structural design,funding, and availability of qualified humanresources.

At present, the provision of ADRservices is linked to the other activities thatNGOs offer to poor communities. This isimperative if the program is to survive. Thechallenge lies in creating a clear link betweenADR and the other programmatic activities andin ensuring that the other activities explicitlysupport and sustain that ADR program. Forexample, the MLAA community mediationprogram is built on a legal aid and human rightseducation program. The MLAA continues tooffer those services but ADR has become thecenterpiece of their efforts. While this isadmirable, it is unclear as yet as to whether ornot this will be sustainable, especially given thatthe other programs do not generate income tosupport the activities of the MLAA.

On the other hand, in two programsobserved, Banchte Shekha and PSF ("RuralChildren and Mothers"), mediation skills andtraining are used as a means of improving thequality of other services. At Banchte Shekha, forexample, the reformed shalish system (based onthe MLAA model) helps to empower women byoffering them a prestigious role in theircommunities and a means of dealing withdisputes effectively so that their other work mightcontinue. At PSF, the family planningprofessionals use the ADR skills to spreadinformation about family planning moreeffectively and also use them when dealing withdisputes within families about this same issue.13

A second major challenge to the survivalof ADR programs in Bangladesh, especially

13 Both the head of PSF and the staff at BanchteShekha emphasized in their interviews how the ADRprogram, and in particular the MLAA model, wouldenhance the quality of their other programs asopposed to highlighting the benefits of ADR as astand alone project.


those that serve the poor, is funding. Currently,the MLAA budget is entirely supported byexternal funds (i.e. the Democracy Partnership,the Ford Foundation, and NORAD). Admittedly,the target population in Bangladesh is too poor towarrant instituting a user fee system— anythinginitiated at this time would probably kill theprogram. At the same time, NGOs must getcreative as to how they will survive should theirsources of external funding be eliminated. Asmentioned earlier, it is unclear how MLAA willsustain itself once the Ford Foundation leaves. Abetter model for financing may be the one thatBanchte Shekha has developed, using the income-generating projects in each community to helpsustain their programs.14 Not all NGOs will beable to link their projects to income generatingendeavors, but coupling the ADR programs withother, popular issues (e.g. family planning) mayhelp to ensure their longevity.

Finally, the low levels of literacy and thelack of understanding of ADR, human rights, andlegal issues make it difficult to ensure that highquality staff will always be available to deliverthe programs. The credibility of the program isimpacted by the reputation of the mediators andthe mediation workers— adequate training inboth ADR techniques as well as the law isessential to maintaining that reputation. Also,women are by far the most disadvantagedpopulation (economically, socially, andeducationally) which poses a significant barrierto recruiting women mediators. (According tothe MLAA district coordinator in Shariatpur, thenumber of women using the reformed shalishsystem is increasing rapidly as they become moreconfident in the results obtained there.) Perhapsthe biggest challenge to the ADR program is thatit is too expensive to reach all parts ofBangladesh both in terms of funding andavailable human resources to implement projects. At present, only 15% of Bangladesh's populationis served by NGOs and only 0.5% are covered byADR programs. Replicating the MLAA modelacross Bangladesh will be an uphill battle.

14 Approximately 40% of their total budget issupported by income generating projects. (Interview,9/17/97)

The news in Bangladesh, however, isencouraging. In general, the efforts of NGOs toprovide ADR services to the poor have been quitesuccessful. The MLAA model is a workable oneand more and more NGOs are requesting trainingin ADR skills. Due to the paucity of resourcesin Bangladesh, perhaps the most importantcontributors to the success of the ADR programare the clearly articulated goals set out byUSAID and the Democracy Partnership— mostimportantly providing the poor anddisadvantaged with access to justice.

In choosing to fund efforts that improveupon an indigenous system, the partnership isdirectly addressing a potentially crippling barrier— public education about mediation. Literacyrates are so low and the poor's access to othermedia so limited that introducing a whole newsystem of ADR would be problematic at best. Instead, the delivery agencies are able to build onan existing concept, with the challenge of provingthat reformed shalish is an effective way for therural poor to deal with their problems. Sinceentire communities are often present at themediation sessions, this can be done effectivelyby ensuring a high quality of staff andconsequently a credible shalish system, alongwith public education.

In addition, the partnership implementeda program design process that successfullyincorporated the views of the users. This meantthat ultimately the focus of the programs hasremained on the most needy, consistent withUSAID's overall goals. More and more womenare using the reformed shalish system and asADR programs are coupled with projects likeBanchte Shekha's, more women will becomeinvolved as mediators as well. Given thechallenges faced by any aid agency implementingADR programs in a country like Bangladesh, themediation committee system is a successful steptowards achieving greater access to justice.

* * *

Bolivia Case Study 1

Bolivia: Private Arbitration and “Conciliation” of Commercial DisputesKey Points

Description: Since the 1980s, USAID/Bolivia has pursued reform of the justice system to support both anti-narcotics and democratization objectives. In 1990, USAID began to support the use of ADR, especiallycommercial arbitration and conciliation, as a way to reduce the backlog of cases in the court system. Byreducing the backlog, ADR could support both anti-narcotics and broader judicial reform objectives.

This case study profiles the development and operation of the commercial arbitration and conciliationprogram. USAID’s implementing partners, the Inter-American Bar Foundation (IABF) and the BolivianChamber of Commerce, established Conciliation and Arbitration Centers within the chambers of commerce inBolivia’s three major cities. Starting in 1994, the centers recruited and trained conciliators and arbitratorsfrom the business community, provided education and outreach to potential users of their services, and helpeddraft a new Arbitration and Conciliation Law to make conciliation agreements and arbitration decisionsenforceable by the courts.

The centers provide both conciliation (an opportunity for disputants to reach a voluntary agreement with thehelp of a neutral party, the equivalent to mediation in the U.S.), and arbitration (a binding decision by a panelof three arbitrators with expertise on the disputed issues). Users pay a fee based on the monetary value of thedispute; the fees are supposed to cover operating costs. The demand for their services is still small: the La PazCenter, the largest of the three centers, has conciliated 10–25 cases annually since 1994, and arbitrated 1–8cases a year, with a high resolution rate and high levels of compliance and user satisfaction. The majorobstacle to increased use of commercial ADR seems to be the business community’s low level of awarenessand understanding of ADR.

Goals: The program’s primary goal— reducing court backlogs— was set by USAID in the context of its anti-narcotics and democratization objectives. In practice, the program has contributed only very indirectly to thisgoal, though it has the potential to meet business sector goals by reducing the cost and time to resolvecommercial disputes.

Design: Though the program’s designers recognized the need to make conciliation agreements and arbitrationdecisions legally enforceable, they did not accomplish this goal until three years after the program beganoperation. Potential users’ uncertainty about the enforceability of ADR may have constrained the demand forthe centers’ services. In addition, the design did not establish any clear links between the program and thecourts. It might have been possible to use the courts to provide information about ADR services tocommercial litigants.

Operations: Despite the lack of legal sanction for their work, the centers have been able to attract enoughpaying clients to cover their direct operating costs. USAID support has covered their outreach and trainingcosts. In the fall of 1997, USAID decided to discontinue its funding for the centers; the centers therefore mayneed to increase demand and/or fees to make the centers financially self-sustaining.

Impact: To date, the centers have had only limited impact within the commercial sector. It is difficult toassess the centers’ impact on court backlogs, because the centers have not determined whether the disputesthey handle would otherwise have been resolved in the court system. Future impact will depend on the centers’ability to build demand within the business community through continuing outreach and education. It mayalso be possible to increase demand by creating a court referral system for commercial disputes, but thispossibility has not yet been investigated, and would require prior institutional reform, education, and trainingwithin the judicial system.

2 Bolivia Case Study

BOLIVIA CASE STUDYI. DESCRIPTION1

Alternative dispute resolutionmechanisms in Bolivia address an extraordinarilybroad range of social needs, reflecting the limitedability of state judicial institutions to addressthose needs over time. Several factors havespurred ADR developments in Bolivia: ongoingpolitical democratization; a national ADR lawpackage passed in March of 1997; a new criminal code reform passed in October of 1997; rapid urbanization and rural flight; increasingnational consciousness of the multiple anddistinguishable cultural and ethnic layers thatconstitute the Bolivian population; as well as theever-present national debate on the links betweensubsistence cultivation of the coca plant and theneed to cultivate favorable bilateral relations withthe United States.

In Bolivia, ADR services fall into threecategories: chamber of commerce conciliationand arbitration centers, court-annexed pilotprograms, and extrajudicial communityconciliation for marginalized communities. Thecourt-annexed pilot program for civil cases in thecity of Cochabamba is not yet operational, butwas interviewing candidates for conciliatorpositions in October 1997. Future operation isuncertain at this time, due to the inability of theSupreme Court to authorize funding for it beyondthe end of 1997. USAID/B has supported theextrajudicial community conciliation work, suchas a pilot university-affiliated conciliation centerand conciliation centers in marginal communities.

This case study focuses on the chamber ofcommerce’s commercial ADR centers. Commercial ADR was the first ADR activitysupported by USAID/B and therefore has receivedmore support and for longer duration than the 1 Conducted by Anthony Wanis St. John, ResearchConsultant for CMG’s USAID/ADR Project.

other areas. These centers operate in a context inwhich large sectors of Bolivian society do notparticipate in government, do not have access tostate institutions regarding dispute resolution, arenot aware of their rights, and continue to bemarginal participants in the economy.

A. Program Goals

USAID-funded ADR activities in Boliviawere originally designed to assist in the creationand strengthening of an independent judiciarywhich, it was thought, could not face the strengthof the drug traffickers, nor hold its owninstitutionally against a powerful executivebranch. USAID/Bolivia’s support for ADRbegan in 1988, but took more concrete form in1990. One of the five components of AID’sjustice sector project was to “provide informationon modern commercial arbitration practices andinstitutions,” which would be demonstrated bythe adoption of arbitration mechanisms forcommercial disputes. USAID/B subcontractedwith the IABF to sponsor commercial arbitrationseminars in Bolivia. Declared US policypriorities were the strengthening of democracy,promotion of economic stability/recovery, andcontrol of illegal drug production/trafficking.

In 1992, USAID/B began a new projectentitled “Bolivia Administration of Justice” to“improve the effectiveness and accessibility ofkey democratic institutions in Bolivia.” USAIDhad broader objectives as well: the creation of “amore expeditious judicial process to make courtmanaged conflict resolution and criminalprosecution more efficient;” and “a moreaccessible and public judicial system throughalternative dispute resolution and delay reductionprograms.” The key concern was the removal ofinstitutional obstacles to effective criminal(especially narcotics) prosecution. One coreactivity contemplated under this project was theinstitution of private commercial ADR.


As a part of its goal to promotecommercial ADR activities, USAID/B supportsconciliation and arbitration centers in three cities— La Paz, Cochabamba, and Santa Cruz. USAID/B targeted these centers in an effort todevelop ADR as a means of saving time andmoney in the resolution of commercial disputes,promoting stable conditions for privateinvestment, and relieving the backlog in theofficial justice system. The IABF, with thechambers, are USAID/B’s implementing partnersin this project.

B. Program Activities

USAID/B supported the followingcommercial ADR activities: visits to Colombiaso that future arbitrators could observearbitration; support for attendance at two ADRseminars in 1993 in Argentina; sponsoring threenational ADR seminars in 1993; a series ofroundtable discussions to promote commercialarbitration; and provision of equipment andpresentation materials to set up three arbitrationcenters via their respective chambers ofcommerce.

USAID/B’s work began with theintroduction of arbitration concepts among thechambers’ business membership. Arbitration,though legally sanctioned, was not formallypracticed in Bolivia until recently and was notwell-known or accepted in the business sector.USAID/B, with IABF, sponsored severalseminars for chamber of commerce businessmembers, lawyers and other professionals,development professionals, and governmentofficials. IABF also supported the passing of theArbitration and Conciliation Law of 1997, whichgave commercial ADR its essential legalframework. After promoting and supporting theconcept of commercial ADR, IABF coordinatedthe training of arbitrators and conciliators(through the provision of training workshops, andstudy trips to other Latin American arbitrationcenters), as well as the physical set-up of eachCenter.

In all three cases, the center operates

within the organizational framework of thecorresponding chamber, and IABF has providedbasically similar types of support to all three. Allthree currently have operational centers andtrained professionals arbitrating and conciliatingcommercial disputes. The centers will beexamined collectively, except where required tohighlight important features of a particularcenter.

The centers target disputes ofcommercial nature for resolution: paymentdisputes for goods/raw materials purchased orsold, problems within partnerships, heavyequipment sales/leasing disputes, constructioncontract disputes, corporate dissolutions, andnumerous other types of civil/commercial causesof action. Types of disputants targeted includedomestic business enterprises (of any size),private parties involved in disputes with businessentities, foreign and international investors andbusinesses, domestic local government agencies,and the state itself (when it is party to a contractor otherwise subject to private law).2

The criteria for selection of arbitratorsand conciliators are similar in all the centers.Potential arbitrators and conciliators are drawnfrom the following groups: business professionalsof diverse fields of specialization (engineering,accounting, economists, general managers,bankers, doctors, architects, insurance experts),lawyers, ADR experts (foreign or national). Theavailable list of arbitrators/conciliators is madepublic by the centers so that potential users maychoose from this list, or the center may choosethe arbitrator/conciliator(s) in the absence ofagreement. The critical legal framework

2Screening of cases must be based on the criteriaset forth in the Arbitration and Conciliation Law(arts. 3, 6), which include any contractual/extra-contractual matter that arises between parties andwhich is not a matter of public interest or law. Explicitly excluded are: labor disputes, state actionsgoverned by public law, any matter in which ajudgment has been issued (with some exceptions),matrimonial matters, estate matters where one partyis considered incompetent.


(supplemented by internal institutional rules ofprocedure) provides guidance on who exactly isexcluded from serving on an arbitral panel in theinterests of maintaining impartiality. There isalso an ‘implied’ criterion for third parties: to beknown to the community (in the sense of beingrecognized and of distinguished stature in thebusiness community), rather than simply trainedin the techniques of dispute resolution. There is arelated emphasis on arbitrator specialization (ascompared to the non-specialization of judges inthe Bolivian court system,) which leads to moreintimate familiarity with the issue in dispute andmethods of arriving at adequate resolution.

The centers offer arbitration, set up withthe composition of an institutional arbitraltribunal temporarily vested with adjudicativepowers, which considers documentary, expert,and testimonial evidence and issues a judgmentand/or an arbitral award. The centers alsoprovide conciliation, a less adversarial proceduresimilar in design to US-style mediation. It is lessstructured than arbitral procedures, relying oncooperative, joint problem-solving by the partieswith greater or lesser degrees of intervention bythe conciliator and resulting in a writtenagreement totally or partially settling the dispute.

Conciliation is considered to meet manygoals of commercial dispute resolution. For one,it keeps open the possibility of renewedcommercial interaction between the parties. Otherreasons include the fact that complex legalregulation is not needed for conciliation and theprocess itself, as practiced in Bolivia, is informaland uncomplicated. The absence of attorneys inconciliation processes is also cited as a factoraffecting the positive impact of conciliation, sinceattorneys’ legal training/culture has not includedADR concepts or emphasized settlement. Thepower of commercial conciliation lies in the factthat it stays judicial or arbitral proceedings onthe same dispute. Unilateral withdrawal from aconciliation procedure is permissible, and canhave the effect of delaying resolution of the case.

In terms of enforcement, arbitral awardsand conciliation agreements are recognized as

cosa juzgada (the legal principle of res judicata)law and are thus legally-binding, subject tolimited judicial review. Arbitrations andconciliations can be initiated at almost any stageof an ordinary litigation and have the effect oftemporarily suspending such action. One ormore of the parties may end the ADR processand resort to the courts by unilateral or jointdeclaration (for a conciliation) and jointdeclaration (for arbitration).

C. Operation of Centers

The organizational structure of thecenters is similar: each has a director who is alawyer and works closely with the generalcounsel of the chamber. The director manages thecenter, maintaining case databases and marketingservices to chamber members, and coordinatingthe assignment of conciliators or arbitrators to agiven case.

Program funding is mainly provided byuser fees and subsidized by the budget of therespective chamber of commerce. Fees are set asa percentage of the amount in dispute [e.g.,US$5000 (.5%) if the disputed amount were$1,000,000]. Additional costs include expertwitness fees, a nominal amount for administrativecosts to the center (ranging from $200 to .3% ofdisputes valued over $1,000,000), and any costsincurred by the tribunal itself (e.g., for travel to acase site for visual inspection). The tribunal alsodetermines the portion of costs each side isresponsible for and includes it in the arbitralaward. Conciliator fees (per conciliator) are alsocalculated along a range according to the amountin dispute. Administrative costs for conciliationsare set at half the amount of arbitration fees.Total costs of the conciliation are split evenlyamong the parties. Members of the NationalChamber receive a 20% discount on all assessedcosts.

Continued financial support for thecenters is unclear. The initial support providedby USAID/B will be discontinued as of the endof 1997. This decision has been attributed to theneed to cut the USAID/B budget, and theresulting shift in funding priority to activities


more directly linked to anti-drug programs.USAID/B funds to date have furnished thecenters, trained conciliators/arbitrators, andinformed potential users. Actual operations maynot be affected, given user fees and the centers’reliance on physical space, resources, personnel,and supplies provided by the chambers ofcommerce.

The National Chamber has a“Commission on Conciliation and Arbitration”,which acts as a kind of board of directors andincludes the principal officers of the chamber; allconciliators, arbitrators, and administrative staffof the center. This body collectively supervisesthe operations of the center and its compliancewith the internal rules. It receives applications forconciliator/arbitrator positions, fixes the feeschedule, and designates conciliators orarbitrators in the absence of party consensus.This commission supervises the centers andprovides procedural oversight for arbitrationsand maintains the power to intervene and correctprocedural errors or delays.

Generally speaking, the demand for thecenters’ services is low. For example, in thelargest center in La Paz, from 1994, when ADRactivities started, to October 1997, the center hadtaken in 77 cases for conciliation, of which 59were brought to a final written conciliationagreement. This center has arbitrated 1 to 8cases per year.

In terms of time, the Santa Cruz Centerreports that its conciliations require an average of4 to 7 meetings, each meeting lasting up to threehours, and scheduled on a weekly basis, yieldingan approximately one month to two monthduration for conciliations. Arbitrations, by law,are to last no more than six months, and uponapplication of the parties, can extend theiractivities for another two months. Regardingsatisfaction, all three centers claim high rates ofsatisfaction with conciliation/arbitration for userswho reached an accord, and all claim that there is100% compliance with agreements and arbitralawards.

II. ANALYSIS

A. Setting Program Goals: Political, Legal,and Cultural Factors

The goals of commercial ADR aredefined differently by different stakeholders.USAID/B’s main goal is the alleviation of thecourt backlog, with a view to more efficientjudicial handling of the counternarcotic caseload.The chambers of commerce and their members’goal is to provide a service that they do notconsider otherwise available— speedy, efficient,and inexpensive resolution of commercialcontroversies.

The convergence of ADR interestsbetween USAID/B and the Bolivian businesssector stems from regional (and global) economicintegration and increased competition for foreignprivate investment, both contributing to theincreased need to resolve commercial disputesquickly, cheaply, and fairly in Bolivia. Regardingpolitical support, backing of the Ministry ofJustice and a government-originated emphasis onpopular participation in government are keyconditions to USAID/B funding in Bolivia.

Political support, cultural fit andadequate resources were and continue to berelevant contextual factors in ADR goal-settingin Bolivia. Political support was also critical inthe passage of the Arbitration and ConciliationLaw, drafted by the previous administration (byBolivia’s first Minister of Justice). High levelpolitical support for ADR was galvanized bylinking USAID/B support for ADR to thepassing of the Arbitration and Conciliation Law,which in turn was part of a much broaderpackage of legal system reforms. This approachby USAID/B appears to have successfully linkedlegislative aspects of judicial reform and ADR.Thus, while Bolivian government officials andcongressional deputies worked to gain supportfor broad judicial reforms and the internationaldevelopment resources they required, they alsobuilt support for ADR and provided it with acritical legal framework. By using the chambers


of commerce as a forum for the outreach,marketing, and education about commercial ADRconcepts, IABF created political advocates forthe centers. Since chamber members arethemselves private sector actors, the chambersprovided a built-in constituency of potentialbeneficiaries of services.

Concerning resources, centers may needto increase demand and/or user fees to havesufficient financial resources once USAIDfunding ends. The three conciliation andarbitration centers are increasing provision ofservices, but are not, by their own estimates, atcapacity yet. They seek to both create and meetnew demand, as well as act as a truly alternativeavenue to the court system for contractualdisputes. Qualitative assessments by programstakeholders indicate that the growing number ofcases denotes increasing awareness by potentialusers of commercial ADR services. Still, ininterviews with local business managers, it wasapparent that there is still great growth potentialfor commercial ADR. People do not know aboutthe services and still need to learn how to bestutilize the commercial ADR services (inclusionof arbitral/conciliation clauses in contracts,execution of arbitral/conciliation agreements inthe absence of pre-existing contractual clauses,etc.). Much material distributed by the threecenters focuses on education of the potentialmarket.

One concern with increased demandexpressed in interviews with the centers'personnel is that to grow, they need to haveadequate numbers of trained service providers(conciliators and arbitrators), which is preciselythe kind of expense they do not feel capable offunding. Their case load has grown over the lastseveral years, although absolute numbers ofcases resolved do not amount to more thanapproximately 75 per center to date. Aggressivemarketing and educational activities, some feel,will enhance demand for services before there areadequate numbers of trained ADR professionalsthere to handle it.

The greatest issue facing the program

designers in terms of commercial ADR was, forseveral years, the lack of a unifying, legitimizinglegal framework. While the new law addressesboth arbitration and conciliation, its mainregulatory value is in the elaboration ofarbitration procedures and enforcing awards. Theexistence of the law now gives service users theconfidence that a reforming judicial system willback up their investment in arbitration orconciliation. Service providers similarly feelmore confident that they can market ADR now asa bundle of services. Early on, the absence of thelaw led to examination of the trade-off betweenapplying program resources to either arbitrationor conciliation. Conciliation, relying oncooperative dynamics rather than the handingdown of a judgment, began to be practiced evenwithout the backing of a legal framework. Thecenters felt that they could not really offerarbitration services widely until there wasassurance that an arbitral award would berecognized as the final determination of adisputed matter (res judicata) and thereby preventre-litigation. As a direct result of the lack of suchofficial legal support for arbitration until 1997,there was considerably more experience gained inconciliation as compared with arbitration in allthe centers.

From the progress made on commercial(and other) ADR during the previousadministration in Bolivia, it is apparent thatpolitical will to support ADR implementation is akey background condition. The prior (and first)minister of justice was easily accessible to keystakeholders in ADR planning. This was evidentin his ability to personally attend their meetings,entertain funding requests, and receive criticismsof relevant legislation. The implications of therecent change in administration are not yetknown, and the absence of a national level bodypromoting ADR as part of wider reform mayaffect the progress and continued funding ofADR programs, especially in light of theUSAID/B change in funding priorities (althoughthis may not impact non-commercial ADR due toits nonprofit nature). The new minister of justiceis a member of the Cochabamba Chamber ofCommerce and is reportedly a conciliator with its


center, leading some to believe that there is hopefor continued political support which has not yetbecome apparent.

Cultural fit is another consideration ingoal-setting regarding commercial ADR.3 Thebackground condition most widely cited by ADRstakeholders in Bolivia, regardless of sector, is aself-perceived predisposition of the population toseek out absolute, judicial/legal style resolutionsfor their disputes. Similarly, the Bolivian legalprofession’s training has traditionally been highlyformalistic, procedural, and adversarial,requiring education and outreach to change. TheSanta Cruz Center is partnering with itschamber-operated Universidad Privada to spreadADR concepts at the community level and thussell non-adversarial approaches to disputeresolution to the larger population.4 The centers’arbitral/conciliation clauses in all new businesscontracts have been designed to multiplyawareness and use of commercial ADR.

B. Monitoring and Evaluation

Monitoring and oversight received littleemphasis in the operations of the centers. TheNational Center in La Paz functions under theoversight of a commission, but the commission ispartly made up of some of the people whoactually participate in the center’s operations.Monitoring is done through informal interviewswith users, conducted to determine satisfaction.This information is not systematically gathered,stored, or analyzed. There is a complaintprocedure against conciliators/arbitrators but itdoes not appear to have been used to date in anycenter.

The lack of attention to monitoring and

3 Cultural fit is a factor in community conciliationand where parties come from different ethnic/linguistic groups.4 Similarly, the Universidad Mayor de San Simon’sLaw School is introducing mandatory ADRcoursework into the curriculum for existing andincoming students, which should have a broadimpact on lawyering in Bolivia in the long run.

evaluation means that the centers’ work has noeffect on the official court system. Results andlessons learned are not systematically channeledinto any restructuring of the judicial system, orfor example, into the education and training oflawyers and judges. The need for systematicmonitoring of cases is illustrated by the debate asto whether or not the cases heard by the centerswould have ended up in the court system at all,with USAID/B generally maintaining that theyindicate the creation and satisfaction of newdemand and the centers generally pointing to theircase load to show they alleviate the burden on thecourt system.

USAID/B, given its oversight role, andas a stakeholder in both the broader judicialreform program and the various ADR activities,has the potential to be a channel for suchlearning. IABF, by the nature of its role asexecutive agency involved in court-annexed andcommercial ADR, also has the potential to linkcourts with lessons learned in the centers.

III. ASSESSMENT

Commercial ADR responds to a well-defined need in Bolivia, that of creating theconditions which encourage investment. Thecenters have tried to provide a low cost, speedyalternative to litigation that also has thecapability to preserve commercial relationsamong disputants. In terms of relieving thebacklog in the judicial system, hard evidence ofthis must await the completion of otherUSAID/B-sponsored modernizations to the courtsystem, including the current project tocomputerize case management information. Thiswill enable interested parties to measuredecreases in backlogs and theorize as to thesource of the reduced backlog, whether it becommercial, extrajudicial, or court-annexedADR, or general improvements to courtprocedures, or some combination of these.

Commercial ADR service providers dobelieve that they have created a service with thepotential to both alleviate court backlog andsatisfy new demand by providing services to


those who would otherwise not seek out judicialresolution. This goal of satisfying a new demandis not explicitly supported by USAID/B as one ofits development aims. It might be wise to linkcommercial ADR to the broader judicial reformswhich are USAID/B-supported in order tocapture the lessons of case management, speedyresolution, specialization, and others and transfersuch learning to the court system. Only anagency that has promoted both of these activitiesand has active connections to both could playsuch a role and that agency would be USAID/B(or IABF).

Also, such linkage of goals could expandfunding sources. The counternarcotics-drivenpolicy goal of alleviating the burden on the courtsystem is laudable and should be supplementedwith a valuation of commercial ADR, for its ownsake, as a facilitator of conditions that encourageprivate investment that fuels economic growthand supports democracy. It may be appropriateto link rule of law reform, including ADRactivities, more directly to the broaderdevelopment aims that they accomplish, such asfacilitation of international private investmentand adoption of respect for rule of law in foreignbusiness dealings.

There are other serious social concernsin Bolivia that are not, of course, addressed bycommercial ADR. The magnitude of such socialproblems leaves room for many players and eventhe chambers of commerce want to help out, byestablishing community conciliation centers(Santa Cruz) and interacting in some way withthe district courts (Cochabamba). Withoutcomment on the appropriateness or feasibility ofsuch plans, they indicate that the latent need foraccess to justice is great in Bolivia and thatUSAID/B’s initial support for such initiativeswas certainly on track insofar as creatingservices and constituencies for them. Aredefinition of administration of justice anddevelopment goals might fruitfully acknowledgethis reality and should be founded on dataindicating what the potential market for ADR inBolivia is.

One may argue that power imbalancesare not a significant problem in commercial ADRservices at present, since they are used byrelatively homogenous parties. Regardingconciliation, should one party exercise undulycoercive power to resolve a dispute, the lawempowers the “weaker” party to withdraw from acommercial conciliation unilaterally and resort tothe official court system. Arbitrations weredesigned to be binding procedures and sounilateral withdrawal is impossible, which mayhelp weaker parties keep stronger parties in theADR process.

The power imbalance in cases involvingstate agencies may affect implementation ofcommercial ADR in the future: while the centersclaim that conciliation has the potential to eventhe power disparity between parties due to therequirement for a cooperative posture that itimplies, one center notes that state enterprises,while legally subject to arbitration regardingcontract law issues, may indeed prove toopowerful for the arbitration system as it presentlyexists. The only other recourse a private partywould have is the official court system, which isstill in the process of strengthening itself andbecoming independent and modernized. Explicitanticipation of state submission to commercialADR procedures was laudable, but effectiveimplementation may still need a stronger courtsystem, where arbitral awards will have to beenforced in case of non-compliance. Whileelaborate planning in the Arbitration andConciliation Law links arbitral awards to thecourts, it remains to be seen whether or not thebroader USAID/B-supported judicial reformswill suffice to make the judiciary independentenough to enforce awards against the power ofthe state itself.

Concerning the centers’ operations, thefirst requirement for assessing staff and casemanagement adequacy is sufficient financialresources to maintain separate, as opposed toseconded, commercial ADR staff. Independentthird party evaluation may be required in order toperiodically assess impartiality, third partyperformance and competency. Staffing levels at


the centers are currently minimal and increasedstaff will be a requirement for proper growth ofeach center. Obtaining alternative sources ofdevelopment funding, in the absence of USAID/Bfunding, and moving toward financial self-sufficiency are the obvious recommendations inthis regard. Better measurement of data on caseduration, number of sessions, length of sessions,and ultimate costs to parties are all needed andshould be maintained in database form by eachcenter. Each center has access to computer andsoftware resources that could be used for thispurpose. What is required is the systematicdesign of a process to capture this informationand a process for sharing and utilizing it.

Cultural legitimacy is not a seriousobstacle for commercial ADR in Bolivia atpresent. It will become an issue if and whencommercial ADR providers reach the micro-enterprise level of business activity, where thedifferent characteristics of the Quechua andAymara indigenous peoples are cited as examplesof cultural differences that can generate conflict.5

At that time, commercial ADR providers willface the cultural issues facing ADR providers inother sectors: how to integrate indigenous normsin a national rule of law framework and how torespect customs and practices that may or maynot be consistent with democratic rule of lawinitiatives; and how to deal with cross-culturalconflict dynamics that are present but notcontrolling issues in commercial ADR. Commercial ADR providers will need to learnfrom the other ADR providers in the court-annexed or community ADR sectors alreadygrappling or about to grapple with these issues.

Political support is, on the one hand, aproduct of constituency building and advocacy.At the same time, it derives from having keygovernment players lend their prestige andsupport to reforms. In terms of constituency

5 Commercial ADR via the Centers does not as yetimpact this level of business activity, most likely dueto the economic and social marginalization of suchparties, and their consequent lack of participation inthe ADR planning process.

building, the sector approach to ADR tends tonaturally build constituencies for each sector andthe business community is one of the betterprepared constituencies available, compared toother social groupings.

Maintaining political support through thedemocratic changes of administration in Boliviawill require sufficient bureaucratic investment inADR so that such support survives changes ofpolitical leadership. It will also be a matter ofencouraging new leaders in the government toendorse and actively promote ADR. Exploitinglinks to the newly formed ministry of justice andto its new justice minister are essential. The lackof a formal link between commercial ADR andthe court system is an obstacle to obtaining suchpolitical support. By transferring knowledge fromthe commercial ADR sector to the government,such a link can be created and can then be thebasis of new relationships with the government.

* * *

South Africa Case Study 1

South Africa: NGO Mediation and Arbitration of Labor DisputesKey Points

Description: This case profiles the ADR work of an NGO, the Independent Mediation Services of SouthAfrica (IMSSA), in the mediation and arbitration of labor disputes. The program works to resolve union-management disputes, primarily in the organized labor sector. Participation in the ADR processes isvoluntary, and arbitration agreements are legally enforceable. Mediated agreements are not enforceable,but are reported to enjoy a high compliance rate. Panelists are well-trained, and they may collect fees fortheir work. IMSSA finances its ADR work through a mix of fee-for-service (about 20%) and donorfunding. Its caseload has grown from 44 cases in 1984 to almost 1500 in 1996. Cases can be handledwithin a few days. There is no systematic follow-up or monitoring, although satisfaction appears to behigh.

Goals: IMSSA's program began in the 1980s to address tensions and poor relations between managementand labor. It was established to overcome the ineffectiveness (costly, time-consuming with low usersatisfaction) of the government-run labor dispute resolution system. With the political transition in SouthAfrica, IMSSA's ADR program has served as a model for the new governmental structure for addressinglabor disputes— the Commission for Conciliation, Mediation, and Arbitration (CCMA).

Design: IMSSA's program uses Western ADR models, which fit well with the institutional and culturalnorms within the industrial relations sector. IMSSA’s organizational and institutional creativity has beeninstrumental in its continuing success, as these qualities have helped it to adapt its program to meetchallenges to its financial resources and to its mandate posed by the recent political transition andaccompanying changes.

Operation: Other factors important to IMSSA's success include: the large number and good training ofthe panelists; the high unmet demand for dispute resolution services in this sector; and the consequentsupport for the program from labor and management, its key constituents. Its relationship to legalstructures has been clarified and strengthened with a 1995 law; IMSSA's clear independence from anineffective and illegitimate legal system and government structure was critical to its success at the time ofIMSSA’s origins and until the transition to the new government, though it is now working closely with thenew CCMA.

Impact: In terms of providing cheaper, quicker, more satisfactory resolution of labor disputes, IMSSAcites its ever-increasing caseload as evidence, although there is no systematic evaluation of its work. IMSSA's impact in the ADR field is established by the proliferation of ADR programs and particularly bythe creation of CCMA. IMSSA can also take credit for developing leadership at the grassroots level. Oneof its former founders and director is now the head of the CCMA. IMSSA faces new challenges in the faceof the new government ADR system, and plans to complement and supplement CCMA work, and branchout into more specialized services. Modifications of the funding sources to rely more on fee-for-servicework is also planned.

2 South Africa Case Study

Key Acronyms Used in Case Study

CCMA Commission for Conciliation, Mediation, and Arbitration

CCRS Community Conflict Resolution Service (IMSSA project)

DOJ Department of Justice

IDRS Industrial Dispute Resolution Service (IMSSA project)

IMSSA Independent Mediation Services of South Africa

PMU Project Management Unit (IMSSA group managing USAID grant) USAID/SA USAID/ South Africa


SOUTH AFRICA CASE STUDY

I. DESCRIPTION1

A. Background on the NGO Sector

Since the beginning of South Africa’spolitical transition in the early 1990s, the countryhas become one of the world’s most active arenasfor experimentation with ADR systems. Theseefforts have arisen out of a foundation laid in theearly 1980s with the establishment ofIndependent Mediation Services of South Africa(IMSSA), an NGO originally devoted toexpanding the use of ADR in the resolution oflabor disputes.2 ADR mechanisms are now seenas an important component of both governmentand NGO efforts to rapidly expand the provisionof services, including broadening access tojustice, and to reduce the high levels of conflictand violence in the country, transforming the 1 Conducted by Carolyn Logan, Research Consultantto CMG’s USAID/ADR Project, September 1997.2Over the years, both before and after the start of thetransition period, a number of other NGOs havebegun to take up the development of ADRmechanisms in other sectors. Some of these include:the African Centre for the Constructive Resolution ofDisputes (ACCORD) and Vuleka Trust, both ofwhich initially provided ADR services directly toparties on an ad hoc basis, and which have sincemoved into specific sectors such as conflictresolution in educational institutions; CommunityLaw Center (CLC) and Vuleka/Diakonia, whichhave trained paralegals to provide a variety ofcommunity-level problem-solving and facilitationservices, including basic dispute resolution; theInstitute for Multiparty Democracy (MPD) andVuleka Trust, which have provided conflictresolution training to a broad cross-section ofcommunity members; and Community DisputeResolution Trust (CDRT) and Community PeaceFoundation (CPF), both of which have helped todevelop community justice centers.

current culture of confrontation into a culture oftolerance and conciliation.

This case focuses on IMSSA’s ADRwork in the labor sector, which began during theapartheid era in the 1980s in an environment inwhich South Africa’s justice system was unableand unwilling to meet the needs of the populationas a whole, and in which the mechanisms formeeting dispute resolution needs in the laborsector in particular were woefully inadequate. Meanwhile, USAID/SA and other donors in thecountry were interested in providing support totalented individuals and organizations that couldpromote and help to develop democratic attitudesand practices in preparation for an eventualpolitical transition, and so supported IMSSA.

IMSSA began its work in 1984 under theleadership of Charles Nupen and a group offounders who had been trained in ADR in theU.S. and U.K., and who have maintained closelinks with ADR pioneers in both of thosecountries and with the “Western” models of ADRthat they developed. Although IMSSA’s mainwork has long been in the field of industrialrelations, the organization actually works in fourmain sectors or project areas: 1) the IndustrialDispute Resolution Service (IDRS) handles laborissues; 2) the Community Conflict ResolutionService (CCRS) handles ad hoc negotiations ofcommunity disputes (especially taxi wars anddisputes in schools) and houses the ProjectManagement Unit (PMU), a team that manages arelatively new USAID/SA umbrella grant thatprovides support for community-level disputeresolution activities; 3) an elections and ballotingproject and; 4) a training department thatprovides training in conflict resolution on an as-requested basis to communities, industry groups,and occasionally to the government. IMSSA is,however, currently in the process of reorganizing;


the above four units are being dissolved, and theorganization will be restructured based onprocesses or functional group (arbitration,mediation, facilitation, training, etc.). Its work inthe industrial relations sector has been going onthe longest, and has been the most influentialduring the transition, and so will serve as thefocus of this report.

With the political transition in SouthAfrica, the context for provision of ADRservices in the country has also changeddramatically, and it continues to do so. The mostnotable change has been the radical shift in thelevel of government interest in the use of ADR,and the consequent shifts in resources,responsibilities, and personnel. Until the newgovernment was elected in 1994, interest in andprovision of ADR services was almost entirelylimited to the NGO sector. NGOs for the mostpart provided these services as an alternative tostate systems, which were either inadequate andineffective, or even entirely non-existent, andthere were almost no linkages between the ADRsystems and the formal legal system.

The new government, however, broughtin new personnel and introduced new goals, bothof which have led to rapidly mounting interest indeveloping ADR mechanisms within a variety ofstate systems, including the formal legal system. A number of top government officials came outof the NGO sector, and are thus familiar withADR; most significantly, Dulla Omar, the newminister of justice, formerly worked for an NGOcalled Community Law Centre in Cape Town,and he has been instrumental in efforts to bringabout wider provision of ADR services. Withinthe Department of Justice (DOJ) and the formallegal system, plans are under way to develop acommunity courts system which would providejustice at the community-level, largely throughADR-type services, and to develop a system offamily mediation boards or of family courts thatoffer conciliation and mediation as a first option. The Department of Land Affairs has recentlycreated a National Land Reform Mediation Panel

for the resolution of land disputes, and a numberof other departments are considering followingsuit. The evidence of this government interestcan be seen most significantly in the creation ofthe new Commission for Conciliation, Mediation,and Arbitration (CCMA), a statutory bodydesigned to provide ADR services for theresolution of certain types of labor disputes,based largely on the model developed by IMSSA.

This transition has had profound impactson the NGOs that have long been the keyproviders of ADR services. Many have lostpersonnel, often including their top leadership, togovernment departments. In addition to DullaOmar, Charles Nupen, director and one of theoriginal founders of IMSSA, left to head thenewly created CCMA. IMSSA also lost anumber of its panelists (mediators andarbitrators) to government positions, includingFikile Bam, who is now president of the LandClaims Court, and Wallace Mgoqi, who is now aland commissioner. Edwin Molahlehi, formerdirector of CDRT, also left his organization for agovernment post. Also, since 1994, the fundingpriorities of many donors have shifted away fromNGOs and toward direct support for thegovernment’s new initiatives (although inUSAID/SA’s case, the level of support availablefor NGOs has remained roughly constant).

B. Program Goals

One of IMMSA’s initial goals was tofacilitate the development of constructivechannels of communication between managementand organized labor in a sector that, like manyothers in South Africa, was characterized bytension and poor relations. Nupen hoped that anADR approach could help to improve andpreserve relationships, a vitally important issuein South Africa then and now. Another primarygoal was to reduce the cost and time of resolvingdisputes in this sector, and increase thesatisfaction of the parties involved with theoutcomes achieved. In this sense, IMSSA aimed


to meet a very concrete need in the country. Thestate-run dispute resolution mechanisms availableat the time— which remained in place until theLabor Relations Act (LRA) of 1995 created theCCMA and other new mechanisms— were highlyineffective, involving high costs and long timedelays, and often providing unsatisfactoryresolution of disputes. The previous system forhandling labor disputes consisted of conciliationboards, industrial councils, and industrialcourts.3

Many of the ADR facilities that weredeveloped by NGOs in South Africa in the 1980sand early 1990s were specifically developed inresponse to a perception that the legal systemwas illegitimate and unjust, and were thusintended to serve as independent alternatives tothe formal legal process. This was not, however,the case with IMSSA, for which overcoming theineffectiveness— rather than the illegitimacy— ofthe existing system was the primary motivation.

3Conciliation boards and industrial councilswere created within specific sectors as a firstmechanism for resolving disputes in those sectors,but they were functioning only poorly at best. Conciliation boards had only been successfullysettling some 20% of the disputes that were referredto them, and industrial councils were achieving justa 30% success rate. (Note these figures wereestimates provided by various interviewees and werebased on the status of these boards and councils inthe early 1990s, just before the passage of the LRA. Some estimates of their success rates were evenlower.) Both of these bodies were often seen merelyas unwelcome hurdles on the way to litigation, andthey may even have been contributing to conflict andcreating additional disputes. A labor relations taskforce created in 1995 to evaluate these issuesidentified the key problems in this system as highlycumbersome and legalistic procedures loaded withtechnicalities, lack of resources, and poorremuneration and lack of training for adjudicators. The result was lengthy delays— it could take 2-3years just to get to the industrial courts, and theyoften had backlogs of up to five months, while theappeals process could also drag on for several years.

However, while IMSSA’s services were initiallyseen as an alternative system, as the countrymoved towards political transition, theorganization’s interest in seeing its work serve asa catalyst for change in the government’s systemalso grew. IMSSA has generally been verysupportive of the government’s recent reformefforts and the creation of the CCMA, whichprovides dispute resolution services using asimilar model, despite the fact that thisdevelopment has forced IMSSA to reevaluate itsown role and develop its skills in some newareas.

C. Project Design

IMSSA’s goal setting and project design appears to have followed a path similar to thatof many other NGOs in South Africa, in thesense that its creation process was largely“expert-led” rather than participatory. Nupenand the other founders had been well trained inADR development in the U.S. and the U.K., andthey were well connected with ADR experts inthose countries. Their introduction of ADR inSouth Africa appears to have been based largelyon these models and on the founders’ ownunderstandings of the needs in South Africa.There is little evidence of a highly participatoryprocess in the creation of IMSSA’s CCRS. Thisappears to be typical of the NGOs working in theADR sector in South Africa more generally.

At least until recently, USAID/SA hasgone along with this "expert-led" approach,focusing on identifying and supporting goodindividuals and organizations. Given the factthat South Africa has long had a highly trained,and often underutilized, cadre of professionals,this has been a relatively effective approach inthe country. As expectations of NGO impactsincrease, however, this approach appears to bechanging in at least some cases, such as with theumbrella grant administered by IMSSA’s PMU.

Specific aspects of project design arediscussed below:


Categories of disputes handled - IMSSA’sindustrial relations work has focused on resolvingunion-management disputes, usually over casesinvolving treatment of individual employees. Itswork is limited primarily to the organized laborsector, and to the cases of individuals who haveunion representation; agricultural and domesticlabor disputes are not normally handled.

Methods - IMSSA provides both mediation andarbitration services. Participation in bothprocesses is entirely voluntary for both parties.All arbitration agreements are legally enforceablein South Africa under the country’s ArbitrationAct. Mediation agreements are not enforceable,although IMSSA believes that most do getimplemented.

Panelists - IMSSA’s work is organized by a corestaff at its main office in Johannesburg and itsthree regional offices, but the mediations andarbitrations themselves are conducted by IMSSA“panelists.” The panelists are a network thatnow includes more than 300 individuals from awide variety of mostly professional backgrounds. Many, particularly those who have focused onlabor/industrial relations, are lawyers, but thereare also many with social science backgrounds(e.g., psychology, business administration,industrial relations, etc.).

Prospective panelists enter into a fairlyrigorous training process that includes a numberof courses with increasing levels ofspecialization, observations of actual mediationsand arbitrations, and twinnings with experiencedmediators and arbitrators. Their progress isregularly reviewed, and trainers and themediators and arbitrators that they work withmust recommend them to IMSSA’s board ofdirectors before it will accredit them as panelists. The entire process takes a minimum of sixmonths. IMSSA also has a professional code ofconduct for its accredited panelists. Mostpanelists also have other jobs. IMSSA used torequire that they only could provide mediationand arbitration services for IMSSA, but panelists

now can provide services both to IMSSA and tothe CCMA. Lack of diversity among thepanelists has been an issue in the past, but sincethe transition IMSSA has had an aggressiveaffirmative action plan, and it has succeeded insubstantially increasing the representation ofblacks and women among both panelists andpermanent staff.

Case management - Most panelists specialize inparticular sectors, particular types of disputes,and in either mediation or arbitration. Theparties jointly select a panelist; if they cannotagree, they can request that IMSSA appoint one.IMSSA then makes necessary arrangements andsupplies the venue if necessary at one of its fouroffices around the country.

Financial resources - IMSSA funds it servicesin two ways: through fee-for-service work (about20%), and through donor funding. For laborarbitrations, for example, the arbitrator’s feetypically runs about R2,300 per day(approximately $450-600), though some costmore, and all of this goes to the panelist. IMSSAthen collects an additional 10% foradministration, as well as other minor fees. Thecosts are usually split evenly between the parties. The remaining 80% has historically come fromdonor support. Roughly 50% of this support isprovided by the Royal Danish Government andthe European Union, and the remainder isprovided by USAID and several other donors.

Caseload - Since IMSSA began its work, thedemand for its services has steadily increased; itscaseload has grown from five arbitrations and 39mediations in 1984, to 857 arbitrations and 627mediations in 1996. IMSSA staff estimate thatthey have roughly an 80% success rate inreaching settlements in mediation. In addition,IMSSA conducts “relationship-buildinginterventions,” which have increased from 1 in1986 to 81 in 1996; in 1993 it began facilitationsof organizational change in the industrial sector,with a case load ranging from 9 to 43 cases peryear in the last four years. At this point, the


types of services that IMSSA provides arerelatively well known, so parties usually come toIMSSA on their own, and the organization doesnot need to do a great deal of case screening;4

about 80% of current users have used IMSSA’sservices before.

Time and cost for resolution - IMSSA could notprovide any detailed statistical information on thetime and cost required for settling cases, butsome very general information is available. Thelength of time for settlement varies depending onthe type of case, but staff indicated that simplecases such as unfair dismissals can usually behandled within a day, while larger scale orsomewhat more complex cases may take 2-3days for resolution. Due to the high number ofpanelists relative to the number of cases handled,there is no problem with backlogs. Theconciliation boards and industrial councils have amuch lower settlement rate, and partiesexperience much longer delays; no information isavailable, however, on the average costs ofsettling cases using these state-run mechanisms. Nonetheless, the advantages in terms of time andsuccess in achieving settlement are substantialenough that they could justifying paying forIMSSA’s services even if they proved to be moreexpensive than the state-run system.

Evaluation and monitoring - IMSSA does keepgood records on the “incoming side” of the casesthat it handles, including the parties involved, thenature of the dispute and the industrial sector thatit is in, the panelist who handles it, and thesettlement reached, if any, as well as the costsincurred at IMSSA. There is, however, nofollow-up monitoring concerning the satisfactionof disputants who use IMSSA’s services, or onthe rate of successful implementation of mediated

4 Note that this applies to the IDRS services. Thesame does not necessarily apply to the communitydisputes brought to IMSSA that have been handledby CCRS.

settlements.

II. ANALYSIS

A. Impact

Although good comparative statisticaldata is not available with respect to many ofIMSSA’s specific impacts, overall trends in theADR sector in South Africa do suggest that theorganization has had a far reaching impact inseveral ways. First, there is little question thatIMSSA has succeeded in providing an improveddispute resolution alternative for certain types ofcases and certain classes of disputants in thelabor/industrial relations sector. In particular,IMSSA’s services proved to be a vastimprovement over those formerly provided by thestate system with respect to both the timerequired to resolve disputes and the overallsuccess rate in achieving settlement. Thus, whilethe conciliatory dispute resolution servicesprovided by IMSSA were not new in principle(the state’s conciliation boards should have beenproviding similar services), in practice they didcreate a new and effective option for disputeresolution. They did not, however, do much toincrease the access of poor or unrepresentedworkers to justice.

The evidence that IMSSA’s serviceshave increased the satisfaction of disputants withthe resolution of their cases is also substantial. IMSSA has earned a high degree of respectwithin the donor and NGO communities andgovernment, and the high and growing levels ofuse, as well as the large percentage of repeatusers (estimated at 80%) suggest that they aresatisfying disputants in unions and industrialmanagement as well. Moreover, IMSSA’simpacts now spread far beyond just those partiesthat have been assisted in resolving disputes, asits work has come to serve in effect as a pilotprogram or a laboratory for experimentation fornew state-run dispute resolution systems. Theorganization’s work has contributed substantiallyto the high credibility of ADR services in South


Africa in general, and to the widespread adoptionof these methods by a variety of governmentdepartments and private-sector actors. Mostnoticeably, the creation of the CCMA, the first ofseveral planned expansions of ADR services to abroad, national scope, directly reflects IMSSA’ssuccess and the satisfaction of labor,management, and government with this approach.

The role of IMSSA’s work in thecreation of the CCMA is apparent in its designand operation, which are heavily influenced bythe IMSSA model. The CCMA’s mandate is todo work similar to IMSSA’s, although it willcover a somewhat broader range of disputes,serve a broader array of workers, protecting therights of both unionized and non-unionized labor,and it will provide its services free of charge. Most importantly, a training program has beenset up for the CCMA’s commissioners (the thirdparties) that aims to provide a foundation similarto that of the IMSSA panelists; IMSSA actuallytrained the first group of commissioners. In itsfirst year of operation, the CCMA has seen itscaseload grow very rapidly to levels well abovethose predicted.

Finally, IMSSA’s work has contributedto the development of leadership within both theADR sector, and within society as a whole, asdemonstrated by the leading role the organizationis taking in the debates about and implementationof the rapidly expanding network of ADRservices nationwide, and by the role that anumber of IMSSA panelists and members of theorganization’s leadership have had in the newgovernment. In addition, IMSSA and a numberof other NGOs in the ADR sector have beenactive in providing conflict resolution training toa broad cross-section of community leadersthroughout the country. These leadershipimpacts have been among the clearest and mostwidespread benefits of the various ADRprograms implemented in South Africa, includingIMSSA’s.

B. Factors Affecting Successful Program

Design and Operation

Some of the key factors contributing tothe failure of the government’s labor disputeresolution system included highly cumbersomeand legalistic procedures loaded withtechnicalities, lack of resources, and poorremuneration and lack of training foradjudicators. Some of the key factors explainingIMSSA’s contrasting success are directly linkedto aspects of the project design andimplementation that allowed it to avoid some ofthese problems. The background conditions anddesign conditions that were particularlyimportant to the success of IMSSA’s IDRSprogram are described below.

Sufficient human resources and effectivetraining: Perhaps most importantly, IMSSAsucceeded in creating a highly competent cadre ofpanelists to serve as third parties who couldprovide high quality dispute resolution serviceswith an excellent reputation for fairness andimpartiality. The combination of IMSSA’sextensive training program and the diversity andskills of its panelists, supported by IMSSA’scode of conduct for panelists, has allowed it todevelop an excellent reputation that has been thekey source of its success and its growingcaseload over the years. In addition, the fact thatIMSSA has been able to create a sizable cadre—now numbering more than 300— of panelists, hasallowed it to consistently handle its caseload in atimely manner.

Good fit with institutional and cultural norms: In contrast to the technical complexity of thegovernment’s dispute resolution processes, all ofIMSSA’s work was based on the well-developedWestern models of mediation and arbitration. This does not appear to have been a problem inthe relatively modernized and globalizedindustrial relations sector.5

5 In South Africa, it appears that a


Political support: The experience of IMSSA inparticular, and of NGOs working in ADR inSouth Africa in general, has been that politicalsupport at "higher" levels may not be necessaryto develop an effective program. In fact, in asystem that was as politically illegitimate tomuch of the population as that of South Africa,political support (and in some cases evenUSAID/SA support) was seen as a thing to beavoided. The South African experience suggeststhat it may still be beneficial to supportindependent ADR and conflict resolutionactivities via the NGO sector in societies beforeand during transitions to a more open anddemocratic form of government.

Since the transition, the government hasrecognized that in addition to dealing with theoverall level of conflict in society, it needs toenable its citizens and businesses to participate inthe global economy, and that this requiresstability and the ability to manage conflicts,rather than having them deteriorate into strikes orviolence. The business community has alsorecognized this need, as have the unions at leastto some extent. Thus, there is a coalition ofsupport for legal and institutional reform in the participatory design process and a good fit of boththe ADR mechanisms used and the overall programdesign with institutional and cultural norms becomesincreasingly important as one moves from themodernized industrial/institutional sector down tocommunity level work, and from urban to ruralareas. The experiences of a number of NGOs provideparticular examples of this. In its work withparalegals in rural areas of Kwazulu-Natal, CLC hasfound that it must consult extensively with localleaders, coming to agreement about which types ofcases and issues will continue to be handled bytraditional leaders, and which types of cases theparalegals can assist the community to resolve. Many types of family and community disputesremain under the jurisdiction of the local chiefs,while the paralegals limit their work to casesinvolving provision of government services andsimilar “external” issues.

country, and a consensus that the best modelssuch as those developed by IMSSA must beexamined and utilized.

There has been some resistance to ADRas a way to resolve conflict in some of the mostmodernized, and thus most “legalized” sectors ofSouth African society— lawyers have been themost resistant group, and mid-size businesseshave also taken more convincing (although largerbusinesses accustomed to working in the globalenvironment have welcomed ADR), but thesuccess of IMSSA and other organizations thathave recently entered this market is increasinglyconvincing them of the value of ADR. But at thegrassroots level, there is much less resistance toconciliatory approaches to conflict resolution andproblem solving, since these tend to be muchmore consistent with traditional practices thanadversarial litigation methods. Outreach andeducation has not been a focus, as IMSSA relieson word-of-mouth promotion based on theeffective provision of services.

Rough parity in the power of classes ofdisputants: ADR work in the labor sectorbenefits from the fact that there is a legalframework in place that at least to a reasonableextent, especially since the passage of the LRA,protects workers’ rights.6 The earlier frameworkwas not necessarily adequate, but was at leastsufficient to give workers some status or powerin a dispute.

Clearly-defined relationship to the formal legalsystem: IMSSA’s IDRS program probably alsobenefited from its clearly defined— and clearlyindependent— relation to the formal legal system,which was failing so completely at the time itswork began. The only link IMSSA’s work had to 6 IMSSA has not found this to be the case insome other sectors, such as in landlord-tenantdisputes, where tenants have so few legal rights, andthe legal framework is so weak, that almost all of thepower is in the hands of landlords, and disputes aretherefore not very amenable to mediation.


the formal system at that time was via theenforceability of IMSSA’s arbitrated settlements. Given the lack of credibility of the formal legalsystem, it was almost certainly best for IMSSAthat it was clearly independent of this system. Atthe same time, this relationship has changed overtime in positive ways and IMSSA’s work servedas a model and catalyst for change once thegovernment decided to reform its own system. Thus, in many respects, IMSSA achieved thebest of both worlds— it had independence from afailing system, but nevertheless was able to serveas the basis for changing that system. It is alsoworth noting that IMSSA’s relationship to thegovernment system will be substantially differentsince the creation of the CCMA. IMSSA’sservices are no longer so much an alternative tothe government’s as a supplement or complementto them. IMSSA expects both to sub-contract toCCMA to help it handle some of its caseload,and to specialize in complex or new, cutting-edgetypes of labor disputes that the CCMA cannothandle.

Sufficient financial resources: Until recently,raising sufficient financial resources has not beena serious problem either for IMSSA or for manyof the other NGOs working in the ADR sector. The financial environment for NGOs haschanged radically during the transition, and manyhave faced serious financial crises. IMSSA hasfared better than most, due to its particularlygood reputation with donors and its long historyof raising some funds through fee-for-servicework (possible in this sector). Historically,IMSSA has obtained 20% of its resources fromfee for services, and 80% from donors.

Nevertheless, the pressure is also onIMSSA to increase its self-sufficiency, and theorganization hopes to reverse its current fundingratio over the next few years to the point where itrelies on donors for just 20% of its resources,earning 80% itself through other means. In thisrespect the organization’s creativity andadaptability have served it well in developing anumber of plans for generating more revenues,

some of which are already being implemented. For example, IMSSA may start requiringpanelists to pay for the services and benefits thatthey receive, which are currently free. IMSSAhas also already begun to more aggressivelymarket its training services to government andother potential customers (winning, for example,the contract to provide training for the first groupof CCMA commissioners), and its projectmanagement skills (winning supervision ofUSAID/SA’s umbrella grant for community-levelconflict resolution work).

In addition, as the CCMA begins to takeon some of the caseload that IMSSA traditionallyhandled, the organization is looking to develop itsskills in new areas to continue drawing payingclients from the labor and industrial sectors. These new areas include specializing inparticularly complex labor disputes, developingexpertise in some new areas of conflict arising inthe labor sector such as HIV/AIDS issues, andincreasingly working in the area of facilitation oforganizational change to help businesses adapt tomeet the needs of entering the global market andof the new political situation in the country.Unfortunately, despite these efforts, one effect oftightening financial constraints is that IMSSAmay have to cut back or eliminate entirely the adhoc work it does in resolving community disputessuch as taxi wars, because it may not be able tosubsidize these activities as it has in the past, andthe parties are frequently unable to paythemselves.

Effective evaluation procedures: IMSSA, likemany other NGOs, does keep relatively goodrecords on the “input side” of their work, i.e.,what parties are using their services and for whattypes of disputes. However, there does notappear to be a great deal of monitoring on the“output side,” e.g., monitoring the level ofsatisfaction of users, gathering suggestions forimprovement, and monitoring the implementationof mediation agreements. IMSSA’s experience isrepresentative of that of most organizations inthat their main source of feedback is the level of


use of their system— as long as their case load isincreasing, they can continue to assume that theyare doing a good job. While this is not a badindicator of success, it should not be the onlyone. USAID/SA is currently pushing all NGOsthat it works with to implement much moreextensive monitoring and evaluation systems—the PMU has elaborate plans for monitoringgrantees’ impacts under the umbrella grant, inpart because USAID/SA is providing substantialfunds specifically for this purpose— but theseprograms are only now being put into place. AsSouth Africa continues to expand its use of ADRinto new sectors and reviews current ADRactivities as demonstration projects that can helpidentify effective models for future use, carefulmonitoring of impacts is becoming increasinglyimportant.

III. ASSESSMENT

A. Time and Cost Reduction

Before comparing the time and cost ofreaching settlement between the two systems, itmust first be reiterated that IMSSA has simplybeen much more successful in helping parties toreach settlements at any cost or length of time —a 70 to 80% success rate, compared to 15 to 30%for the state system. Thus, parties might want touse IMSSA’s services even if they cost more ortake longer, although it does not appear that thisis the case.

Despite the lack of detailed statisticaldata on the time necessary to resolve disputes ineither IMSSA's IDRS or the conciliation boardsand industrial councils, it appears that IMSSA isresolving cases more quickly. IMSSA is able tohandle all of the cases brought to it in a timelymanner, without developing a backlog. Data isnot available, however, on the proportion of thetotal industrial relations caseload being handledby IMSSA, and it may only be handling arelatively small proportion of all labor disputes(see below), so this must be taken into account in

measuring its success against government disputeresolution processes. The cost advantages ofIMSSA’s services are less clear. The higher rateof settlements and the relatively fast processcompared to the industrial courts system wouldlead to substantial savings, but it is not clear howthese savings compare to the fees that parties payto use the IDRS’s services. Nevertheless, thegrowing number of users of IMSSA’s servicessuggests that these fees are not prohibitive,especially given the time savings and successrate. However, these fees do limit access to thesystem, as discussed below.

B. Access and Options

The nature of the option for disputeresolution provided by IMSSA is not necessarilynew or unique in the industrial relations sector —the conciliation boards and industrial councilswere also in part based on the use of ADRtechniques. Thus, the IMSSA did not increasethe options available per se, but IMSSA doesprovide this option much more effectively, so theorganization has, in effect, increased options.

IMSSA has not, however, done much toexpand access to justice— this was never reallyone of its key goals. In fact, IMSSA’s services,while highly effective, may only be meeting theneeds of a relatively small proportion of labordisputants. The fees that IMSSA charges, incombination with its habit of working primarilywith unionized labor, exclude some sectors suchas agricultural and domestic laborers almostentirely, and these sectors are also the ones thatare likely to be most uncomfortable or unfamiliarwith the mostly Western model of ADR used byIMSSA.

C. Satisfaction

Because of a lack of follow-upmonitoring and evaluation, IMSSA cannotprovide very much direct evidence concerning thelevels of satisfaction with its services.Nevertheless, there are a number of indicators


that suggest that the level of satisfaction withIMSSA’s services has been high — thecontinuously growing caseload and high esteemin which IMSSA is held by other NGOs,7

donors, and the government, and perhaps mostsignificantly, the creation of the CCMA.

D. Preserving or Improving Relationships

Improving communications and relationsbetween labor unions and management was oneof the key motivations for the creation of IMSSAand the IDRS. It is, however, difficult tomeasure this impact, and no monitoring orevaluation directly related to it has been done.

E. Community and LeadershipDevelopment

One of the benefits not only of IMSSA’swork, but of other NGOs working in this sectoras well, has been the development of leadershipwithin the country from the grassroots to thenational level. Moreover, the leaders coming outof these programs are well versed in conciliatoryapproaches to problem solving and policydevelopment, a particularly critical skill inhelping South Africa manage the complexpolitical demands of the post-transition era. Thisbenefit can also be seen in programs working atthe grassroots level. (One conflict resolutionNGO, CDRT, for example, has found that anumber of the mediators who have worked in itscommunity justice centers have gone on, evenafter being laid off by CDRT due to its financialdifficulties, to serve in other positions in localgovernment.)

F. Laboratory for Experimentation:IMSSA and CCMA

7Although this does not mean that IMSSA isuniversally loved, as many NGOs that work oncooperative projects with IMSSA fear that they willbe overpowered by it.

IMSSA’s most important impact, andthe most obvious example of its success, hasbeen the fact that via the LRA of 1995, thegovernment chose to disband the existing statestructures for dispute resolution that had been soineffective, and build a new system that has itsroots, in part, in the model and approachdeveloped by IMSSA. The emergence of theCCMA, while a success for IMSSA, providesnew challenges as well.

As mentioned earlier, the CCMA’smandate under the LRA is similar to that ofIMSSA, although the CCMA will cover a widerrange of disputes and workers, incorporatingespecially protection of rights for domestic andagricultural workers who have previously hadfew rights and even fewer resources with whichto protect them. Like IMSSA, the CCMA isprimarily designed to handle the cases ofindividual workers, such as those that arise undercollective bargaining agreements, but it does notadjudicate conflicts concerning the agreementsand labor contracts themselves. The LRA doesrequire that contracts and collective bargainingagreements now include specifications regardingthe dispute resolution mechanisms that will beused by the parties.

IMSSA expects to be able to handlesome of the cases under CCMA jurisdiction. IMSSA has been forced to reevaluate its role,and it is sharpening its skills to provide servicesin some new areas. Disputants will still have theoption of using private dispute resolution servicessuch as IMSSA’s rather than the CCMA if theyso chose, and such arrangements can bestipulated in labor contracts. The CCMA canaccredit private providers, like IMSSA, and theCCMA will cover at least some of the costs forcases that are under its jurisdiction that are takenby the parties to a private provider. Thisrepresents a relatively unique mix of public andprivate dispute resolution services that couldprove to be very mutually reinforcing. Forexample, IMSSA prepares itself to specialize andhandle particularly complex cases, while


anticipating that the CCMA will handle the bulkof the routine cases.

The CCMA has seen its caseload growphenomenally since it started its work inNovember 1996, rising from 834 cases in thefirst month, to 5871 in July 1997— nearly 34,000cases were brought to the organization within itsfirst 9 months. This caseload is much greaterthan expected, and not surprisingly, it haschallenged the capacity and capabilities of thenew organization. While this in part suggeststhat IMSSA had only been handling a relativelysmall proportion of labor disputes in the past, itmust also be recognized that the passage of theLRA and the creation of the CCMA haveexpanded the total caseload, perhaps drastically. New rights have been created, and new sectors ofworkers offered the services of the organization. In addition, particularly because the CCMA’sservices are free, some analysts believe that manyparties are choosing to use the CCMA first, andgiving up too easily on trying to resolve theirdisputes themselves. They predict that as thefunctions and role of the CCMA and the types ofcases that it should handle become betterunderstood, the more spurious cases beingbrought before the commission will decline.

The CCMA faces some dauntingchallenges, and may continue to learn fromIMSSA's experience. IMSSA’s experience hasdemonstrated that the quality of its panelists hasbeen the most fundamental factor in its success.CCMA has felt forced to speed up its trainingprocess and cut corners to increase the number ofcommissioners and handle the caseload. Whiletimely resolution of disputes is important, it maybe better to ensure that commissioners are welltrained, even if it means delaying some cases fornow. The CCMA also faces the challenge ofreaching out to its new constituents, especiallyagricultural and domestic workers who have notpreviously been well represented in labordisputes. This may require a more extensiveprogram of outreach than either IMSSA or the

CCMA have found necessary in the past, and itmay also require some adaptation of the currentmodel in order to meet the needs of theseworkers, who are less familiar with the ADRWestern models.

The continued provision and expansionof ADR services in South Africa in the next fewyears presents a number of challenges both forindividual NGOs and organizations such asIMSSA, for government bodies such as theCCMA, and for the government as a whole.Financial sustainability, defining missions, andmonitoring impacts are clearly the mostimportant challenges faced. IMSSA appears tohave the human and institutional capacity thathas been necessary to think creatively anddevelop ways to meet all of these challenges,having outlined a detailed plan for achievingfinancial sustainability, identified new, cutting-edge niches that it can fill to continue to generatedemand for its services, and working withUSAID to improve monitoring and evaluation ofthe work that it supports.

* * *

Sri Lanka Case Study 1

Sri Lanka: Government-Supported Community MediationKey Points

Description: This case profiles Sri Lanka's community mediation program, which dates to 1990. The SriLankan program operates in all but the Northern and Eastern provinces, which are affected by civil war. Itincludes 218 mediation boards, with 5,400 trained mediators, and has handled about half a million casessince 1990. The program is based on a comprehensive Mediation Boards Act of 1988 (amended in 1997),and operates within a clear legal framework. The mediation boards are appointed and operate at thecommunity level, with immediate oversight by commissioners and general oversight by the NationalMediation Boards Commission.

Cases appropriate for mediation include civil disputes and minor criminal offenses; certain kindsof cases in fact need certificates of non-settlement from the mediation boards before they may be heard incourt. Mediations are free to users; program costs are covered by the Sri Lankan government, with somefunding from foundations. The mediation boards meet about once a week for approximately four to eighthours, using public buildings. Each mediation board is comprised of a chair and 12-30 mediators;individual panels for cases have three mediators. Satisfaction with the program is high.

Goals: The boards were established by the ministry of justice for a number of reasons: increase access tojustice by reducing court backlog; increase access to the economically disadvantaged; replace the failedconciliation boards with a better ADR program.

Design: The program attempts to improve on the failed conciliation boards by incorporating lessonslearned from that experiment, especially problems of politicization of personnel. Mediation is accepted bythe population, and builds on indigenous conflict resolution systems.

Operation: To ensure the quality of dispute resolution services, the program provides training andongoing oversight for mediators. The program relies heavily on volunteer staff, and so is extremely cost-effective. However, stipends provided to staff should be increased to ensure their costs are covered. Trainers are critical to operations but also overburdened, and so additional training staff should be hired.High literacy facilitates outreach and education, as well as the operation of the boards themselves.

Impact: Satisfaction by the mediation board users is very high; related compliance rates are also high. Court delays have been reduced. The government needs to ensure long-term financing as external fundingbecomes uncertain. Confidentiality of the mediation process needs to be improved. A lurking problem tocontinued success is the developing backlog of cases to be mediated.

2 Sri Lanka Case Study

SRI LANKA CASE STUDYI. DESCRIPTION1


Sri Lanka's mediation program is basedon the Mediation Boards Act No. 72 of 1988. The act was written in response to concern that:1) the backlog in the courts was preventing SriLankans from accessing justice effectively andefficiently (which was linked to a desire to keepminor crimes from becoming major ones);2) the current justice system needed to beimproved, especially to provide access to theeconomically disadvantaged; and 3) that SriLanka has a long history of community mediationand the failure of the Conciliation Boards Act of1958 did not, in the minds of those working at theministry of justice (MOJ), indicate that mediationwas a failure. In fact, the MOJ asked that ananalysis of the failed conciliation boards beconducted and the new program was designedbased on that analysis. The MOJ then drove theprocess of writing the Mediation Boards Act No.72 of 1988.

The act provides the legal frameworknecessary to institutionalize the mediationboards. The boards are empowered to use theprocess of mediation to resolve all disputesreferred to them by disputing parties, as well asthose referred by courts. The mediation boardsare appointed at the community level and theirmembers are persons respected in the community.Disputes over movable or immovable propertyvalued below 25,000 rupees (e.g., collection ofbank loans, property disputes) have to be referredto mediation prior to filing an action in court;disputes involving minor offenses must also bereferred to mediation prior to the policeinstituting action in court. Disputes betweenfamily members are also frequently brought to 1 Conducted by Elizabeth McClintock, CMGConsultant, September 1997.

the mediation boards for resolution. Theprogram’s goal is to divert minor disputes awayfrom court for settlement if possible, in anatmosphere that is both free from the constraintsof court procedure and which is also conducive tothe amicable settlement of a dispute— the natureof which does not require the application oftechnical legal concepts.

The mediation board has no jurisdictionto mediate in matters where one of the disputantsis the state, a public officer or the attorneygeneral, or where the offence is one in whichproceedings have to be instituted by the attorneygeneral. If an action has already been filed incourt, the dispute can be referred to mediationwith the written consent of both parties. Nolawyers or agents are permitted to appear beforethe board and "no statement made by any personbefore a mediation board shall be admissible inevidence in any civil or criminal proceeding."2

The 1997 amendment to the act furtherdefines the procedures to be followed in bringinga case from mediation to court (i.e., what kindsof cases need certificates of non-settlement beforebeing allowed to be heard in court) and furtherclarifies how the mediation boards are constitutedfor any given case. (In the past, disputants chosethe mediation panel with direction from the chair. Now, the panels are pre-constituted but thedisputants have the right to change themembership. It was found that disputants rarelyhad an opinion about the mediators themselvesand this amendment was written to expedite theprocess.) The amendment to the act came in partfrom feedback from the mediators themselvesabout how the process was working and whatimprovements might be made.

Oversight falls within the purview of the 2 Mediation Boards Act, No. 72 of 1988, Section 16(2).


mediation boards commission. The mediationboards commission consists of five members,three of whom at least shall be from amongpersons who have held judicial office in theSupreme Court or the Court of Appeal. Thechairman of the commission is nominated by thepresident. Commission members serve for threeyears. The commission meets once a week todiscuss key issues, review the performance ofmediation coordinators and mediators, as well askeep up to date on the progress of the boards.

The mediation boards program beganfunctioning in 1990. At present there are 218mediation boards in operation throughout most ofSri Lanka and approximately 5,400 trainedmediators. It is hoped that mediation boards willbe set up in the Northern and Eastern provincesin the near future (they are prevented fromoperating there at present because of the civilwar). The number of cases referred to the boardshas steadily increased since the inception of theprogram, from 13,280 in 1991 to 101,639 in1996. Through July 1997 a total of 522,307cases had been referred to mediation boards. Ofthese, 31,739 were rejected as not suitable formediation, 17,279 were withdrawn by theapplicants, and 13,925 were carried over untilAugust 1997. A total of 459,364 disputes weretaken for mediation and of these, 295,302disputes were settled amicably. The settlementrate is 64.2%.

The program costs are coveredpredominantly by the Sri Lankan government.The government has demonstrated itscommitment to continuing the program byproviding at least the minimum budget— coveringsalaries of the mediation trainers, administrativecosts at the MOJ, and the small stipends thatmediators receive to cover costs of managing themediation boards (e.g., travel, postage,stationary). The total budget for the mediationboards in 1997 was Rupees 24 million (less than$500,000). The same amount has been budgetedfor 1998. Additional training, public awarenessprograms, and media campaigns have beenfunded by the Asia Foundation (TAF) and

USAID through TAF's Citizen's Participation(CIPART) Project. Between September 1995and December 1997, USAID has contributedapproximately $110,000 to the Mediation BoardsProgram through TAF.

B. Program Activities

The Sri Lankan ADR program iscomposed of several parts to ensure the successof the mediation boards:

1) The training of mediation trainers. There are thirteen mediation trainer/coordinators,who hold their jobs until retirement. The thirteencoordinators are predominantly former familycounselors (a few were probation officers), andreceived a five day basic mediation course and afive day advanced Training Of Trainers coursefrom Dr. Christopher Moore of CDR Associates,Boulder, Colorado. In addition, six of the 13trainers were given the opportunity to travel tothe USA, Malaysia, or India for exposure toother mediation techniques. Mediationcoordinators also participate in regular refreshermeetings once a month at the MOJ.

Each coordinator is responsible for overseeingapproximately 20 community mediation boards,visiting three to four boards every week. Theirduties include monitoring the mediators, givingfeedback to the mediators and the chairpersons,answering questions and giving advice about themediation process, and dealing with anyadministrative issues.

2) The recruitment and training of mediators(panel members). Panel members are chosenaccording to the guidelines set out in theMediation Boards Act.3 Individuals and non-

3"The persons who shall be eligible for appointmentto any panel of mediators are n/a.(a) any person resident in a mediation board area orengaged in any work in that area;(b) any person resident or engaged in any workoutside such mediation board area if the commissionso decides, in exceptional circumstances; and


political organizations nominate candidates for aposition on the mediation board. The candidatesare required then to submit an application to theMediation Boards Commission and are theninterviewed. The overwhelming majority ofmediators are men (for example, at each of theboards attended, only two or three of a total of 30panel members were women; approximately 2%of all mediation board chairs are women) and arewell-respected local community members.Mediators are generally retired civil servants,such as teachers, school principals, postmasters,or district commissioners. Religious leaders,farmers, doctors, businessmen, and lawyers arealso prominent as panel members. In theory,mediators serve for three years. They can bereappointed indefinitely, though theirperformance must be reviewed every three years,and on any given board, there must be a turnoverof one-third of the staff every three years. Eachmediator receives five days of initial training anda one-day refresher every six months. The boardchairs receive a two-day refresher every sixmonths. All mediators are volunteers and a smallstipend is provided to them for travel (to andfrom the sites of land disputes, etc.) and to coveradministrative costs such as sending letters to theparties to the dispute informing of their mediationdate. 3) Awareness raising and educationalprograms for police, local officials, schoolchildren, social workers. The mediationcoordinators are responsible for giving thistraining. These programs are divided into twotypes. In one type, stakeholders (e.g., judges,police chiefs) implicated in the implementation ofthe Mediation Boards Act are given training, andapproximately 5,000 stakeholders have

(c) any public officer nominated by the governmentagent of the administrative district within whichsuch mediation board area is situated:Provided however that an officer nominated underthis paragraph shall be eligible for appointment tothe panel appointed for every mediation area withinthat administrative district." Mediation Boards Act,No. 72 of 1988, Section 5.

participated in a one-day "awareness raising"program. The content of the program includesthe presentation of the act, the role of thestakeholders in the implementation of the act, anda question and answer session. The second typeof program are those conducted withinorganizations or constituencies to educate theparticipants about the mediation process. Todate, programs have been offered to policeofficers, local bar associations, and local schoolchildren.

4) Regular monitoring and evaluation of panelmembers by the mediation trainers and themediation boards commission members. (Seethe Analysis Section for a further discussion ofmonitoring and evaluation.)

5) Training for law school students at the SriLanka Law College. A six-month program wasimplemented to educate law students aboutmediation. The students participate in a three-day mediation workshop and then use thetechniques they have learned in the legal aidclinics. Students are also given the opportunityto observe mediations conducted by the mediationboards. Approximately 1,500 students haveparticipated in the mediation workshop to date.

6) Posters to advertise the boards in eachcommunity were produced in Sinhala, Tamil,and English. The posters include the address ofthe local mediation board. In addition, a publictelevision documentary on mediation wasproduced and aired on national television. Thepolice also refer cases to mediation, thusincreasing the visibility of the program.

C. Operation of Mediation Boards

Each mediation board is composed of achairperson and a panel of 12-30 mediators. Thechair is chosen by the mediation boards


commission (based on input from the mediationcoordinators) and serves for three years (with theopportunity for renewal). The mediation boardstend to meet once a week, generally one day onthe weekend or after working hours during theweek. The boards meet for anywhere from fourto eight hours. In general, classrooms in schoolsor other public buildings are used as the venuesfor the mediations. The chairs are responsiblefor conducting the intake of all mediation cases,contacting the second party, informing thedisputants about the process of mediation,assigning mediation panels, administration of thecase load, and just generally managing theirmediation board.

Approximately 25 cases are dealt withon any given day at a mediation board. Some ofthese cases are new, and some have been carriedover from the last session. The MOJ has askedthat all cases be dealt with within 60 days of thecomplaint being submitted to the chair. The chaircan extend that time if necessary. The majority ofcases dealt with at the mediation boards are landdisputes, minor criminal offenses, debt collection,and family disputes.

When a disputant comes to the mediationboard for assistance, he or she is required to fillout a standard application, issued by the MOJ,and provide a five rupee judicial stamp. Uponarrival at the mediation board, disputants aregiven a short presentation on the mediationprocess. The chair then matches disputants witha panel of three mediators.

Mediations continue until the case issettled or the session ends for the day. Themajority of cases dealt with are land disputes andfamily matters. (At one mediation boardobserved, the chair estimated that 75% of hiscases were land disputes.) Disputes betweendebtors and banks constitute the other majorcategory of issues. In the urban areas, disputesinvolving drunk and disorderly behavior orassault are also common.

Satisfaction with the mediation boards

was quite high among the disputants interviewed. While most have confidence in the justicesystem, what makes mediation attractive is itsaccessibility, the low cost (both in terms of timeand money), how they are treated, their controlover the process, and the fact that it is acommunity-based solution. (Almost everyoneinterviewed mentioned that the mediation processprovided the disputants with an opportunity tosave face because, in their view, the mediatorsbetter understand their problems — they are fromthe same community— and agreements are basedon consensus.)

Satisfaction is also reflected in thecompliance rates. Anecdotal evidence indicatesthat a vast majority of bank-debtor settlementsare respected. At the Moratuwa MediationBoard, the chairman said that 95% of the loancases are resolved and the settlements abided bybecause both sides feel that mediation is moreconducive to resolution. Interviews revealed thatsettlements reached in minor criminal offensesand assaults also had a fairly high compliancerate. Interviewees implied that mediation was farpreferable to dealing with the police or the courtsand that compliance was a small price to pay forresolving the issue. No data is availableregarding land disputes and family mattersalthough the mediation chairpersons implied thatthey have a lower rate of compliance, sincepeople returned to the board to ensurecompliance with a settlement.

The mediation boards enjoy an enormousamount of political support in Sri Lanka— all theway up to the Supreme Court. This supportcontributes to the success of the program both interms of the funding it receives from thegovernment and the reputation that the programenjoys amongst Sri Lankan citizens. The clearrelationship between the mediation boards andthe formal judicial system, outlined in theMediation Boards Act, has also been a factor inthe program's success.

II. ANALYSIS


A. Background Factors

In Sri Lanka, the mediation boards werenot established as a substitute for the formaljudicial system. Indeed, the formal judicialsystem enjoys a fairly good reputation in SriLanka. While there are several areas in need ofreform, especially with respect to themodernization of the legal system (such asimproving court administration and enhancing in-service training for young lawyers and theattorney general's department), recent surveysindicate that 98% of Sri Lankan citizens wouldstill resort to the legal system if they had a legalproblem. Instead, the mediation boards werecreated as a complement to the existing system,in an attempt to address court backlog.Approximately 8,700 court cases are currentlypending nationwide4 resulting in a feeling of userdissatisfaction.

In addition to the judicial environmentthat formed the backdrop for the creation of themediation boards, there are several backgroundfactors that have contributed to the strength ofthe program. First, success of the mediationboards system is rooted in the clear link betweenthe mediation boards and the formal judicialsystem. The Mediation Boards Act, No. 72 of1988, clearly spells out the structure andjurisdiction of the boards. More importantly, itdelineates the types of cases which must have acertificate of non-settlement issued by themediation board before it can be referred forcourt action. This has resulted in a more rapidpopularization of mediation boards thanotherwise might have occurred, had that link notbeen as clear. It has also meant that userconfidence in both the mediation boards and thecourts has increased as well-functioningmediation boards have resulted in greater usersatisfaction with results, as well as a decrease incourt backlog— thus reducing court delays.

4 The backlog has been reduced from 13,000 cases,p. 6 CIPART Quarterly Report, April, 1997 - June30, 1997.

A second, related background factor isthe high quality of human resources available tostaff the mediation boards. There is a strongsense of community service and responsibilityamong the generation of mediators who arecurrently serving on the mediation boards. This iscomplimented by the fact that the MediationBoards Commission has made a strongcommitment to ensuring that the boards are notpoliticized. Thus the quality of mediators hasremained consistently high. This has reflectedpositively on the reputation of panel membersand the perception that they are well trained andrelatively impartial. In their 1994 report,Hansen, et al. argued that user satisfaction withthe mediation boards was higher than with theprevious conciliation boards, largely becausemuch greater care has been taken to select, train,and supervise community mediators.Observations here support this hypothesis.

In addition, the high rate of literacy inSri Lanka has had a significant impact on thesuccess of the mediation boards program. Thehealth of the overall system of government isreflected in the literacy rate, as mediators, judges,and other public officials seem to be held to ahigher standard of performance. In addition, thehigh literacy rate in Sri Lanka makes it easier toreach the target population.

A final background factor is the culturalfit of mediation with established social norms. Mediation has a long history in Sri Lanka. During the time of the kings the mediator wascalled the duk gana rala— loosely translated as"one who listens to the sorrows and woes ofothers." Seeking the counsel of elders and well-respected members of one's community is seen asan appropriate means of resolving disputes. Infact, prior to the establishment of the conciliationboards and in the intervening period betweentheir abolition and the creation of the currentmediation boards system, the local publicservants, the Grama Seva Niladhari (GSN), werecalled upon to resolve disputes. Villagerscontinue to go to them as a first resort, but anaggressive information campaign has resulted in


the GSNs referring cases to the mediationboards. The GSNs interviewed indicated thatthey were supportive of the mediation boardssystem because: 1) they have an enormousnumber of responsibilities and do not have timeto properly dispose of such disputes; 2) themediators have demonstrated that they are trainedto help parties to effectively resolve disputes; and3) the GSNs are involved in the process— as theyare often recruited to ensure that a settlement isabided by.

Parties themselves also emphasized thatmediation— defined as a process of having othersassist you in solving your problems— is acommon and welcome means of keeping thepeace in small communities. According to thoseinterviewed, parties felt that they were treatedbetter in the mediation process than they mighthave been in court or by the police and the factthat the resolution is based on consensus allowedthem to save face. "The process was explainedto me in great detail and was easy to follow. Ifelt the panel was balanced in their roles— thosewho listened to me and others who responded tomy concerns. I was treated politely and I felt likemy problems were understood by the mediators. I have learned something today and would do itagain [participate in the mediation process], ifnecessary."5

The various religious traditions in SriLanka also promote consensus as a means ofproblem solving. Because many priests andimams also serve as mediators, parties feel thatthe mediation boards process not only respectsthose traditions but improves upon them."Initially, we went to our imam to help settle ourdispute but our perception was that the imamwas not impartial so the settlement was not valid. Therefore we decided to come to the mediationboard because we have heard that they [the

5 A young man who came to the MoratuwaMediation Board in the Colombo district with hisuncle when they had a dispute about the uncle'sdrunk and disorderly behavior at home ( 9/24/97).

mediators] are impartial and neutral."6 Whenasked if he felt the imams who serve on thismediation board were impartial he repliedaffirmatively, "because of the training theyreceive."

B. Program Design

With respect to program design, by farthe most significant issue was the consciousdecision to analyze the shortcomings of theConciliation Boards Act of 1958 and to create asystem that did not replicate the problems of theformer system.7 There were three majordrawbacks to the conciliation boards systemwhich were identified by the drafters of theMediation Act of 1988. First, the MOJ had thepower to remove panel members if they haddemonstrated incompetence. While this wasimportant from an administrative standpoint, theact was worded so that the minister had power toremove members "without assigning any reason,"leaving the system open to criticism (apparentlyjustified) that this power might be used forpolitical reasons.

A second area of concern revolvedaround the breadth of the panel's jurisdiction.Lawyers especially felt that the panels’ power todeal with issues like divorce, child custody, andestate administration and to issue the equivalentof a decree of court was a dangerous precedent.The unavailability of extraordinary relief (i.e.injunction) caused delays because parties wererequired to seek redress at the conciliation boardlevel prior to pursuing their case in court, thusreplicating the very same problems the mediationsystem had been established to resolve. Also, anumber of critics expressed concern that thesettlements reached bore no relationship to theparties' legal rights. Finally, and perhaps mostimportantly, people were dissatisfied with the 6 A young man who, along with five other parties,had a land dispute come before the mediation boards. Akurana Mediation Board (9/21/97).7P.B. Heart, From Conciliation to Adjudication inSri Lanka: Causes and Problems.


quality of panel members. Not only were theyuntrained, but there seemed to be a heavy elementof politics in the selection process thus leavingthe conciliators open to undue influence.

In setting up the mediation boards, thedrafters of the 1998 Mediation Boards Act tookgreat pains to ensure that these issues were dealtwith.8 The establishment of the commission andits role in oversight of the system has removedthe taint of politics from both the selectionprocess and from the mechanism established tomonitor, evaluate, and discipline mediators. Thejurisdiction of the mediation boards is limited andclearly spelled out in the act. The relationshipbetween the mediation boards and the judicialsystem is straightforward and the mediators mustnot only understand it themselves but mustcommunicate that relationship and their rights tothe disputants. And finally, the training thatcoordinators, chairpersons, and mediators receivehas improved the quality of the services offeredto parties and the perception of impartiality thatthe panel members enjoy.

C. Personnel and Training

The tension that mediation trainers faceis that they want to encourage well-respectedpeople to serve on the boards— usually peoplewho have been in positions of authority (teachers,school principals, priests)— yet are now askingthese people to behave differently than they areaccustomed to. In other words, they are nolonger supposed to make decisions based on theirposition of authority but instead are to helpothers make those decisions. In addition, theparties themselves will frequently come to themediation with the expectation that the panel

8 Despite the experience with the conciliationboards, there are still some who want to give themediation boards the power of summons and to givetheir settlements the status of decrees of court. Interviewees insisted that it would be a mistake toinstitute these measures, as the voluntary andconsensual nature of the process are keys to themediation boards' success.

members will solve their problem for them. Themediators need to learn how to manage thisexpectation as well as train themselves to thinkdifferently about their own role in the communityand more specifically in the mediation process.

Linked to this challenge is the impactthat a mediation board chair can have on thetenor of a mediation board. One of the mediationtrainers interviewed indicated that if chairs havevery strong personalities, they will often leavetheir mark on the functioning of the mediationboard. Two of the three mediation boardsobserved bore this out. In both cases, theauthoritative way in which the chair ran theboard was reflected in the tone that mediatorstook with their clients. In conversations withdisputants, this authoritative tone seemed toimpact negatively on their perception that themediators were impartial third parties. Themediation coordinators are trying to address thisproblem. The third mediation board observedwas run by a woman who had excellentfacilitation and organizational skills and hercollaborative style resulted in an extremely well-run mediation board.9

D. Monitoring and Evaluation

Another aspect of program design thathas contributed to the success of the mediationboards and to the confidence that users have inthe program is the system to monitor themediators. During regular visits, the mediationcoordinator observes the mediators in action,offers advice, and interviews participants ifproblems are evident. Regular reports aresubmitted to the commission based on these visitsand mediators are evaluated on theirperformance. If the coordinator observes aproblem, s/he will follow up with the mediator.For serious problems, the commission may thenassign a team of three coordinators to investigatethe complaint.

9 Mrs. Murial Nilaweera is the chairperson of theUdunuwara Village Mediation Board near Kandy.


If disciplinary action is necessary, thecommission will generally first warn themediator, counsel, and terminate if necessary.Disputants also have the right to submit a letterof complaint directly to the commission which isthen dealt with as described above. In order toensure that the coordinators do not becomepartial to any given district or mediation board,they are rotated to a new district every threeyears.

E. Education and Outreach

Despite the fact that mediation fits wellwith cultural norms in Sri Lanka, it has beennecessary to design an extensive public educationprogram in order to publicize the mediationboards. Not all of these education efforts havebeen funded by the government and they havecomprised a significant part of the grants thatTAF has provided to Sri Lanka for support of theADR program. There are three significantbenefits to this education program: 1) co-optingthose who are involved in implementation; 2)winning over those who might influence thereputation of the mediation boards from afar, and3) widening the target audience reached bymediation board efforts.

First and perhaps most importantly, theeducation efforts have been incredibly successfulat winning over those members of the communitywho are implicated in the implementation of themediation system. This would include localmagistrates, chiefs of police, judges, divisionalsecretaries, and the Grama Seva Niladhari(village headmen). Over 900 stakeholderworkshops have been conducted across Sri Lankawith the intent of familiarizing participants withthe Mediation Act and their role in ensuring itssuccess. Bringing the village headmen on boardhas been especially important because they arenot only involved in publicizing the mediationboards but are often called upon to "encourage"second parties to attend mediation and areintegral to the enforcement of settlements, as theyare a well-known and respected authority at thevillage level.

A second benefit of the educationprogram is its potential for securing the supportof respected members of the legal professionwho, because of their stature in society, couldplay a crucial role in bolstering the reputation ofthe mediation boards. At present, there arerumblings within the legal profession that themediation boards are "a step to deny access tocourts of law."10 In fact, the concerns expressedby some detractors of the mediation board systemhave some validity. In particular, decisions aresometimes reached with respect to land disputeswhere the mediators and the parties may not havea clear understanding of the relevant laws. Whatthe education programs seek to accomplish is tobring the legal professionals into the process sothat their advice can be more constructivelyintegrated into the system. To this end, themediation trainers have organized workshops forstudents at the Sri Lanka Law College andsessions for local bar associations. While thereis strong support within parliament for thecontinued operation of the mediation boards, therisk is that the support will be eroded unlessefforts are continued to enlist the support ofprominent professionals, such as lawyers.

10Open letter to the Sri Lankan Bar Association,submitted June 1997 to the BASL News by Neil Dias,Attorney-at-Law. In the letter, Mr. Dias expressedgrave concern that parties were being deniedadequate justice because they were required to seek acertificate of non-settlement from the mediationboards under certain conditions, prior to having theircase heard in court. Mr. Dias had five majorcomplaints. First, mediations are conducted insecret. Second, he felt that mediators did not havethe proper training to be dealing with the kinds ofcases that came before them. Third, "what themediators do during [a mediation] is done arbitrarilyin that there is no observance of any law or legal orother precedent resulting in the same offense beingsettled in hundred or even thousand different waysand terms." Fourth, parties are not allowed legalrepresentation at the mediation, and fifth, thesettlements are not subject to review or appeal byanother body.


Finally, incorporating education effortsinto the program design helps to widen the targetaudience for mediation. One of the main goals ofthe mediation boards program is to provideaccess to justice for the disadvantaged. However, sustenance of the program will dependon both increasing the number of people whohave an understanding of the mediation process,such as school children and police officers, andincreasing the number and type of voicesadvocating for the use of mediation as a means ofalternative dispute resolution. Programs arecurrently being offered in schools and in policestations and reports from the coordinatorsindicate that they are very successful. Teachershave expressed interest in beginning peermediation programs which will not only expandthe practice of mediation but will provide fertileground for developing a constituency of futuremediators.

There is talk of getting the middle andupper classes more interested in the mediationboards with two direct benefits: a large numberof more powerful advocates involved in theprogram; and bringing in businessmen, lawyers,and other professionals may help to pushmediation into other arenas such as labor,environmental, and commercial disputes. A moreactive education campaign needs to be mountedand would benefit from external funding, as thegovernment does not have the funds at present topay for them.

F. Finances and Staffing

The issue of funding brings to the foresome significant operational issues. At present,the costs of the mediation boards program arevery low. As mentioned above, the totalgovernment budget is approximately 24 millionrupees. Each mediator is given between 50-250rupees per month for travel and each chairpersonreceives 500 rupees per year for stationary and

250 rupees per month as a clerical allowance (tocover the costs of stamps, etc.). As all themediators are volunteers, the only other costsincurred are the salaries of the 13 full-timemediation coordinators and any pre- and in-service training offered to the mediators. Thereis no talk of instituting a user fee, as it is still aprimary goal that the system be made available tothe disadvantaged. At the same time, the smallstipend given to the mediators and thechairpersons is not adequate to cover all theircosts. This stipend should be increased in orderto alleviate the risk of corruption as mediatorsmay be tempted to seek to cover their coststhrough other means.

A second, related issue is the cost oftraining mediators. The consistent, high qualitytraining offered to mediators has been a key tothe success of the current program. Themediation coordinator/trainers interviewed are allvery talented and overworked. It is critical thatnew trainers be hired in order to alleviate theburden on these people. In addition, furtheradvanced training will keep both the mediatorsand the coordinators up to par. Presently, one-day in-service refresher courses are offered onceevery six months, but the length of these coursescould be extended and the choice of topicsbroadened. In addition, as mediators are requiredto be retrained if they are re-appointed everythree years, it is critical that the trainers have awider range of tools that they can then share withthe mediators so that the training does notbecome stale. These operational issues areinextricably linked to a consistent source offunding.

The mediation boards program benefits from anextremely dedicated pool of people who arecommitted to the idea of community service andwhose reward for participating as mediators issimply the prestige they enjoy in their towns andvillages. However, these people will not be ableto serve on the boards forever. On the one hand,this is a positive thing as they will not thenbecome “burned out” or disenchanted. On theother hand, it poses a risk for the continued


operation of the boards if there is no money totrain new mediators as they are needed. Inaddition, the current commitment of thesemediators and especially of the chairpersons maybe tested if they cannot rotate out of theirpositions periodically. The chairpersons mustdeal with additional administrativeresponsibilities, which means that theirinvestment in the program is not simply one daya week but often requires several days each week.

Further training of new mediators willhelp to alleviate some of the pressure on thecurrent program. The MOJ has also consideredsome incentives to reward the mediators. Noneof the ideas, at present, includes monetarycompensation, which is wise. One incentive underconsideration is to give the mediators the title of"Justice of the Peace." According to both themediation board chairpersons and the MOJadministrators interviewed, this title wouldprovide them with the recognition that theydeserve for their efforts.

G. Confidentiality

A final operational issue that deservesspecial attention is the issue of confidentialityduring the mediation process. In general, thestructure of the mediation process is wellthought-out and consistent across the boardsobserved. The chairpersons were efficientadministrators and structural constraints, e.g.three mediators per panel, were respected. Unfortunately, confidentiality was extremelyproblematic in all of the mediations observed. Atthe three mediation boards attended mediationstook place in the same space and between fourand six mediations were happening at a giventime in either a classroom or a hallway. Themore contentious disputes impinged upon othersas the angry voices would permeate the room. The Moratuwa Mediation Board was anexception with the more difficult and potentiallyvolatile cases conducted inside the singleclassroom available— the rest of the mediations,usually six others, took place in the corridor

outside.

Only one of the disputants interviewedmentioned that the lack of confidentiality was aproblem but every mediator (including thechairpersons) and all the coordinators indicatedthat this was one of the biggest problems themediation boards face. And while disputantsmay have been reluctant to speak about the issue,their body language during the mediation sentclear signals that they were often uncomfortablediscussing their problems in such a publicforum.11 There was some sense that somedisputants felt somewhat coerced since they wereforced to deal with their problems in front of thelarger community.12 These conditions not onlymake it difficult for the parties and the mediatorsto caucus but mediators in Udunuwara also saidthat they would probably get more familydisputes if the mediations took place in moreprivate settings.

Presently, the desire and perceived needfor mediation as an alternative means of disputeresolution outweigh the discontent expressed withthe lack of confidentiality. However, mostobservers of the mediation boards, supportersand detractors alike, recognize that this couldbecome a serious problem— negatively impactingon the credibility of the mediation process. Suggestions for dealing with the issue haveincluded giving the mediation boards their ownspace but to date this has been rejected as there isa fear that space will translate into another layerof bureaucracy which will doom the Mediation

11 In Moratuwa, for example, disputants leanedforward over the tables to share their stories with themediators. Often the mediators had to ask thedisputants to speak up. Many disputants glancedaround the room or space as they told their story, asif to check and see who might be listening.12 At the Moratuwa Mediation Board there werebetween forty and fifty people milling around, only aportion of whom were actually there to participate ina mediation. The others were there to give moralsupport to the parties and it looked as if some werethere out of simple curiosity.


Boards. More operational suggestions includeasking schools to give up more space for the useof the Mediation Boards on the weekends.

III. ASSESSMENT

The Sri Lankan mediation boards systemseems to be an efficient and effective way toadminister justice. Building on a culture ofmediation and learning from the mistakes of thepast, the MOJ has succeeded in meeting the goalsit articulated in the formulation of these boards. Delays in the court system have been reduced,minor offenses are dealt with in an expeditiousway— preventing smaller crimes from becomingmajor problems, and the poor and disadvantagedhave greater access to justice.

Particular strengths of the Sri Lankanmediation boards program include the close fit ofthis system with traditional means of resolvingdisputes. This has simplified educating thepublic about the boards and it has reinforced thevalue of modeling ADR programs on indigenousmethods of conflict resolution. Structurally, theclear delegation of authority for the purposes ofoversight, the mechanisms for monitoring andevaluation, and the consistent, high qualitytraining offered to the mediators has resulted in asystem with a deservedly excellent reputation,both nationally and internationally. In addition,the voluntary nature of the process, both from theperspective of the participation of the parties andthe fact that the mediators themselves arevolunteers has meant that people are more willingto use the system and abide by the settlementsreached in this forum.

Two additional, especially importantaspects of the Sri Lankan ADR system are itslow cost— both to the user and for thegovernment, and the wide-ranging educationprograms. The low cost ensures that thedisadvantaged truly have access and for thegovernment it means that the system can besustainable over the long-term. The educationprograms have several benefits: the populationsof potential users and mediators are increased,and perhaps most importantly a culture of

peaceful, consensual dispute resolution is re-established in Sri Lanka.

While the mediation boards system isvery successful, there are three areas which meritimprovement: funding, structure, and the reach ofthe program. With regards to funding, externalresources will not always be available andtherefore the government needs to evaluate itscommitment to the program and build some longterm guarantees into the budget to ensure themediation boards' continued existence. Withoutthat commitment, the government runs the riskthat the mediation boards will lose credibility andultimately users because of a lack of training anda lack of new mediators.

There are two structural weaknesses thatthe Sri Lankan government will have to addressin the near future. The first is providingadequate training to ensure that mediators remainintellectually stimulated and mediationcoordinators are able to evaluate and coachmediators using the most up-to-date skills. Thegreatest structural weakness in the mediationboards program is the lack of confidentiality inthe mediation process. As discussed above, thisproblem must be dealt with soon or it willseverely impact the credibility of mediationboards. Increased access to more public space,such as classrooms, could help. The lack ofconfidentiality also limits the kinds of disputesthat are dealt with at the mediation boards.

The final issue that must be dealt with ifthe mediation boards program is to thrive is thelimited reach that the boards currently have. Thisapplies to both the types of cases that are referredto mediation and to the kinds of people who availthemselves of the mediation services. At present,the mediation boards function predominantly inthe rural areas, serve the lower socio-economicclasses, and address minor disputes. Increasingthe reach of mediation would then increase thenumber of voices advocating for the use ofmediation in all kinds of disputes and perhaps, inturn, broaden the base of users.


Power imbalances might become an issuein the case of banks using mediation boards as ameans of collecting from debtors. Duringinterviews at the mediation boards individualswere asked how the boards could avoidappearing to be a collection agency for the banks. Mediators and disputants alike replied that theyfeel empowered by the mediation boards: thefocus is on the debtors and their stories, and sothey perceive that they are treated more fairlythan if they dealt directly with the bank or had togo to court. Perhaps most importantly, theoptions that can be created at the mediation areoften more flexible and favorable to the debtors. An indication that the system is working lies inthe fact that compliance rates with settlementsreached with banks seem to be quite high.13

Power imbalances with respect to womendo not seem to have been addressed in Sri Lanka. It is unclear as to whether this is because womendo not experience discrimination at the hands ofthe justice system or simply because women havenot been given the voice to express theirdissatisfaction with the system. It is noteworthy,however, that a large number of women are inpositions of influence at the MOJ and womenmediators and chairpersons were treated fairly atthe mediation boards observed. Increasing thenumber of women mediators is a goal of theadministrators of the mediation boards programand much of the resistance that they encountercomes from the women themselves, who claimthat the mediation board is too time-consuming.At the same time, while the number of womenseeking redress at the mediation boards is rising,the overwhelming number of disputants are stillmen. If more women were recruited asmediators, there might be an increase in thenumber of disputes that tend to involve women(e.g. family disputes). All in all, due to the

13 Both the mediation coordinator in Akurana andthe Chairman of the Moratuwa Mediation Boardindicated that settlement and compliance rates indebtor cases were as high as 95%. While this figuremay be inflated, it seems to be well abovecompliance rates for other kinds of cases.

similarity in the kinds of people who arecurrently choosing to use the mediation boards,there exists a relative parity in power of thedisputants.

Another important issue is that offunding. Given the resources available in SriLanka at the present time, the mediation boardswill continue to need external funds in order toensure a quality program. The government oughtto be able to maintain the system, but the fundsthat the Asia Foundation and USAID haveprovided for training have been much-needed andwell-used. The system which has USAIDproviding the funds and TAF administering thedisbursement of those funds and monitoring theiruse on the ground seems to have been workingquite successfully. TAF has the resources tofollow the program and to assist the governmentin the development of support programs (such aspublic education campaigns and legal literacyprograms). This has been an important part ofthe successful partnership between USAID, thegovernment of Sri Lanka, and the AsiaFoundation.

It has been proposed that USAIDdisburse funds directly to the Sri Lankangovernment, without TAF acting as anintermediary. Should USAID decide to do this,one consideration to keep in mind is that TAFprovides an important oversight function whichUSAID is not currently positioned to undertakein Sri Lanka, especially given that USAID willphase out of Sri Lanka in the year 2000. Ifresponsibilities for maintaining this program arethen transferred to the State Department, TAFcould conceivably provide much neededconsistency in the program. Regardless of theform the external assistance takes, USAID andthe U.S. Government are getting a high return ona relatively small investment in Sri Lanka.

Finally, the mediation boards havesuccessfully dealt with a large number of thecases that are brought to them. Unfortunately,this success may lead to larger problem: abacklog is developing in this system which begins


to replicate one of the very problems the Boardswere established to address in the first place—delays in the court system. While no immediatesolutions have been proposed, the MOJ and themediation coordinators are well aware of theproblem and are trying to develop ways toaddress it.

While not perfect, the Sri Lankanmediation boards have been incredibly successfulat providing low cost, accessible justice to amajority of Sri Lanka's rural poor. The system iswell-administered and enjoys an outstandingreputation. If the few problems outlined aboveare dealt with in a timely manner, Sri Lankanswill continue to benefit from a well-trained cadreof mediators.

* * *

Ukraine Case Study 1

Ukraine: NGO Mediation of Civil and Commercial DisputesKey Points

Description: As Ukraine emerges from the Soviet system and attempts to privatize, build civil society, andmove to reform its justice system, a well-functioning ADR system may help further these goals. USAID issupporting an NGO, the Ukraine Mediation Group (UMG), in its work mediating commercial disputes aswell as a broad range of civil disputes, consistent with strategic objectives aimed at legal and economicreform and increased democratic participation. USAID recently began to support the UMG, which hadpreviously secured funding through grants from other foundations and organizations.

This case profiles the UMG's mediation program, which is essentially a network of mediationorganizations now in four cities: Donetsk (the first), Lugansk, Odessa, and a new office in Kiev. UMGtrains mediators, offers a clearinghouse for those seeking mediation (matching mediators with clients), andconsults with enterprises. Although commercial and labor disputes, as well as disputes related toprivatization, will eventually be the target of UMG efforts, UMG will take any type of civil case. Mediators in the network are trained and certified by the UMG. The program is still relatively small: fromJanuary 1996 to March 1997, the three active offices accepted a total of 61 applications for mediation, and26 were actually mediated.

Goals: UMG's stated goal is "creating conditions for peaceful work and the stable development of nationalindustries, the essential factors in building a healthy economy." This goal is consistent with a number ofUSAID's SOs, with the hope that the UMG's programs will help expedite the process of privatization andhelp move other economic restructuring projects forward more effectively. Potential users are thebusinessmen and others involved in commercial disputes who are loath to use the court system, which isplagued by delays and high costs.

Design: The mediation program follows developed country mediation models. Outreach is through UMG'scollateral activities, such as university-based seminars on ADR. The greatest design challenges includedeveloping monitoring and evaluation in a society fearful of providing the necessary information, as well asfinancial sustainability.

Operation: The program provides extensive training of mediators, although quality control is difficult dueto the problems in monitoring mentioned above. Current laws severely limiting permissible sources ofNGO funding have spawned insufficient and unsustainable funding strategies, and laws must be changed topermit fee for service charges. The relationship between ADR and the court system must also be clarifiedthrough legislation.

Impact: UMG's mediation program has great potential to impact the commercial sector, as well asdeveloping civil society, particularly as interest and enthusiasm for it grows. It must first overcomesignificant legal obstacles in securing sustainable funding, as well as cultural obstacles to open sharing ofinformation and effective monitoring of mediations.

2 Ukraine Case Study

UKRAINE CASE STUDYI. DESCRIPTION1


Emerging from the oppressive Sovietsystem, it has been a challenge for Ukrainians torespond to the new policies of a democraticsociety. Generally speaking, Ukrainian citizensare notably cynical and apathetic about theirability to effect change in government—especially the political and judicial systems. These attitudes manifest themselves in manyways. People are reluctant to share informationabout themselves or their programs, as they areuncertain as to how that information will be used. This in turn impacts the establishment of newprocesses like mediation, since suspicion andignorance prevent clients from using the system. These attitudes also impact the design ofmediation systems, as mediators try toaccommodate the extremely cautious response ofpotential clients. As a result, there are fewstatistics shared with strangers as to numbers andkinds of cases mediated and even less data onclient satisfaction and mediator performance.

In this climate, Mr. Nicholai Borisov hasstarted a program to introduce a means ofalternative dispute resolution to the citizens ofUkraine. Mr. Borisov began his work in ADRunder the Soviet government. He is trained as apsychologist and he, along with severalcolleagues, was asked to work with miners in thecoal industry in the early 1980s to developmethods for resolving conflicts within theindustry. In 1989, when social enterprises werepermitted to establish themselves, Mr. Borisovand his colleagues founded an organization calledthe Donetsk Scientific Applied Association (the"Psychological Center").

1 Conducted by Elizabeth McClintock, CMGConsultant, December 1997.

Mr. Borisov's past experience with themining industry lead the government to seek hisassistance when strikes broke out in Donetsk in1989. These were some of the worst strikes thathad ever been experienced in Ukrainian laborhistory. Borisov invited three US mediators fromthe American Arbitration Association (AAA)visiting Ukraine at the time to assist him. Together they offered three seminars to strikeparticipants on mediation and conflict resolutionskills.

Mr. Borisov was greatly influenced bythis experience. Until now, the PsychologyCenter had been teaching people to solve theirown problems. The visitors from the AAAintroduced the idea of having a third partyintervene in disputes. Borisov found this to be a"simple and effective" means of resolvingconflict, and then began practicing mediation andattempting to build his skills.

In 1993, during a debate over a newlabor law, the trade unions threatened to strikeand Borisov was asked by the government tomediate. Borisov invited the AAA back toUkraine to assist him and they successfullymediated an agreement. The idea for a networkof mediation centers grew from this experienceand was ultimately discussed at a seminar offeredto many different parts of the government, tradeunions, etc., in Kiev later in 1993. The Sorosfoundation gave $2,000 to develop the projectand the Ukraine Mediation Group (UMG) wasborn.

Since 1993, the Psychological Center hasreceived a succession of grants (Soros, Mott,Carnegie), portions of which have been dedicatedto sustaining the UMG. Search for CommonGround (SCG) is the most recent American NGOto offer support. SCG began working with UMGin 1995 and was instrumental in negotiating thegrant that UMG received from USAID in August1997.


B. Program Design and Operation

The UMG is really an umbrellaorganization for a network of mediationorganizations. At present there are four regionaloffices: Donetsk, Lugansk, Odessa, and Kiev.The first three have been in operation almostthree years and the Kiev office was registered inNovember 1997. The UMG is involved intraining mediators, offering a "clearinghouse" forthose seeking mediation (matching mediatorswith clients), and consulting to enterprises whowish to set up systems within their organizationsto deal with conflicts before they erupt. Thenumber of staff varies at each office but in allcases, it is quite small. For example, in Donetskthere are three permanent staff (an accountant, aproject assistant, and the executive director) andapproximately 60 volunteers, 15 of whom arevery active.

The UMG has a council consisting ofrepresentatives from each of the four regions. Itmeets once every six months at one of theregional offices. They discuss policy affectingall four regional groups and generally keep oneanother informed of developments. In addition,they are linked by e-mail. The PsychologicalCenter is responsible for finding grants tosupport the UMG and for developing new projectideas.

At present, the UMG is willing to takeany kind of case, including family disputes, labordisputes, commercial disputes, consumerdisputes, property disputes, and landlord/tenantproblems. However, the impetus for the foundingof the organization and the real need in Ukrainehas meant that commercial disputes, disputesresulting from privatization, and labor-management disputes will eventually be the targetof the efforts of UMG. In offering funding,USAID also encouraged them to target thesekinds of disputes as they most closely correspondto USAID's strategic objectives.

People learn of the UMG’s services byword of mouth, through the members of the

group, through recommendations from those whohave attended the trainings or who have used thegroup's consultation services, or throughseminars held to raise awareness about mediationand the mediation group. For example, UMGmight hold a workshop for staff of an enterprisethat is being privatized, or for the teachers,students, and parents of a particular school. Asmall number of cases are referred to the UMGby "enlightened" judges who are cognizant of themediation group and the benefits of mediation.

Each mediation group has their ownintake process. This may change over time.When the seven mediation groups are established(three more regions will receive funding underthis USAID grant), the UMG council hopes towork out a common set of intake guidelines. Ingeneral, however, disputants register at theregional office with the case coordinator. Thecoordinator gathers the data about the case andthen contacts the other party (or parties) todetermine if they want to engage in the mediationprocess. Part of the coordinator's responsibilityis to explain the mediation process, fees, etc. This is done in a private caucus— if mediation isagreed to, then the final fees are often discussedjointly. If a party does not wish to participate,they are asked to put their rejection in writingand the case will be closed.

Once the coordinator has determined thatthey will take the case and the parties haveagreed to mediation, they ask the initiating partyto choose a mediator from their list. Informationis included on that list such as how many casesthe person has mediated, what kinds of cases, etc. A date and place is then set for the mediation. Mediations never happen in the regional officesbut at some other venue (this is due in part to thefact that the office facilities are usually quitesmall).

Between January 1996 and March 1997,the three regional mediation groups accepted atotal of 61 applications for mediation. Of these,26 were actually mediated and 25 of thoseresulted in settlement. Of the remaining


applications, eight went to court; three have beencontinued; five were resolved during caseadministration; five were dropped; and in 14cases, the second party refused mediation.

The cost of the mediation depends on thecase. If the case is about money (e.g., a disputebetween a customer and an enterprise that can bevalued) then the mediator will get somepercentage of the settlement, between 1% and7%. In general, mediation is free for small casesfor the elderly poor (e.g., an old woman that ishaving trouble with her neighbors). All themediation groups interviewed are workingtowards a fee for service system and targetingcommercial clients. The Psychological Centergenerates fundraising ideas for the regionalmediation groups and also develops other projectideas. Thus far, they have received grants from$1,000 to $500,000 for the Ukraine MediationGroup project.

Ukrainian legislation dictates that NGOscan only get money from members of theirorganizations or from grants; the mediationgroups are NGOs. This legislation is beingreviewed and the new draft law may change thestatus of NGOs. It is unclear at present whatwill happen. The Psychological Center is acommercial center and therefore it can charge forits services. It is the mediators who get paid, notthe mediation group. The mediators may offerthe mediation group a "charitable donation,"because it would be against the law to have aformal agreement requiring the mediators to givethe mediation group a certain percentage of whatthey make on a particular mediation.

There is no financial support from thegovernment for the mediation groups andpolitical support is building slowly. Someregional mediation groups have been moreaggressive at bringing the regional governmenton board than others. And the nationalgovernment is supportive of ADR in principle,and even has an office that serves as anombudsman for labor disputes. They alsoparticipated in a workshop that the UMG grouporganized in 1993. In practice, however, therestill seems to be some suspicion around

independent third parties intervening in conflict— especially conflict that involves thegovernment or trade unions.

Agreements are only recorded if theparties ask that they be written down. Mediatorswill help craft the agreement, if asked. TheUMG council is going to come up with someguidelines for crafting such agreements for themediators to follow based on input from each ofthe regional groups. It takes anywhere fromthree days to six months to settle a case. Divorces tend to be resolved more quickly. Thereare not yet any statistics regarding compliancewith settlements or the satisfaction of parties. The DRMG intends to begin a 3–6 month follow-up program during which the parties will becontacted and interviewed about the success ofthe mediation process, their opinions about themediator, and compliance with the agreement.

Each regional organization is responsiblefor distributing information about themselves toadvertise, recruit members, potential mediators,etc. Potential mediators are generally recruitedfrom a pool of members of the mediation groupwho have volunteered on particular projects, andindividuals from the community who haveparticipated in the seminars and lectures offeredat the university. Anyone can apply to be amember of the mediation group. It ischaracterized as a social organization and theannual fee is ten dollars. Organizations can alsobecome members of the UMG and theirmembership fee varies depending on the size ofthe enterprise.

All mediators in the network have gonethrough a training and certification processoffered by the UMG. Fourteen mediators arecertified in the UMG, seven of whom are in theDonetsk database. The training consists ofseveral parts: first they participate in fourworkshops which account for approximately 160hours of in-house training, followed by a two-month practicum with the supervision of amentor. Then they conduct two mediations.Following this training process, which takesapproximately one year, the candidate goesthrough a certification process. A panel


comprised of some of the UMG councilmembers, the mentor, and other mediatorsinterviews the candidate, reviews the results ofthe mediations he or she conducted and, ifmerited, issues a certificate.

The mediation group also offers a one-time consultation on approaching problems,usually if a client is unable to pay for mediationservices. The mediation group does not advertisethis because they are concerned that others willcome seeking only consultation and not the fullmediation service. This one-time consultation isdistinguished from the consulting services thatthe mediation group is offering to enterprises,especially those going through the privatizationprocess. In the latter, the group will act morelike a management consultant and work with theclient to set up an internal dispute resolutionsystem and charge for this.

At present, there is very little data onclient satisfaction with the mediation process orwith mediators themselves, which makes itvirtually impossible to determine the impact ofthe mediation program overall. In addition, verylittle evaluation or monitoring of agreementsand/or mediators has been conducted. Theimplications of this for the program will bediscussed in greater detail in the analysis section.

II. ANALYSIS

A. Setting Program Goals

USAID program officers did not designthe ADR project in Ukraine that they arecurrently funding. It was driven by thePsychological Center with the help of Search forCommon Ground. Therefore, USAID has hadlittle impact on the stated goal of the UMG:“Creating conditions for peaceful work and thestable development of national industries [whichare] the essential factors in building [a] healthyeconomy. [The] Ukrainian PsychologicalCenter contributes to [the] Ukrainian MediationGroup project, a system of training andsupervising of independent practicing neutrals,

educated and certified for mediation, arbitrationand negotiation of labor disputes.”2 At thesame time, the size of the USAID program inUkraine and the extent, in particular of theDemocracy and Governance program, has meantthat this ADR program complements several ofUSAID’s strategic objectives.

Of particular interest are SO 2.1—Increased, better-informed citizens’participation in political and economicdecision-making, and SO 2.2— Legal systemsthat better support democratic processes andmarket reforms. Of associated interest is SO1.3— Legal, regulatory and politicalenvironment conducive to sustainable growth. It appears that although ADR may not fit withinany one strategic objective, nonetheless asUkraine struggles to privatize, build a civilsociety, and move to reform its justice system,there are many ways in which a well-functioningADR system might help USAID reach thosestrategic objectives. More specifically, USAIDofficials indicated that they hope the mediationprogram will help to expedite the process ofprivatization and help to move other economicrestructuring projects forward more effectivelyand efficiently.

When Nicholai Borisov and Scott Adamsof Search for Common Ground made theirpresentation to a USAID review committee for anunsolicited grant, there was some initialuncertainty on the part of USAID officials as towhether or not this program would be a good fit.3

Of particular concern to officials was whether ornot funding a mediation program mightundermine legal reforms already being supported

2 “Program of Intensifying Human Resource inDonbass through Support and Development ofDemocracy in Labor Relations”. Donetsk ScientificApplied Association, (“Psychological Center”),Donetsk, Ukraine 1994.

3 The committee was composed of USAID officials

from the Democracy and Governance, Privatization,Economic Restructuring units. Interview, 12/5/97.


by USAID. These fears were quickly allayedwhen the presenters were able to demonstrate thatthe intended target audience for the mediationsystem was not currently using the judicialsystem— this would include businessmen andothers involved in commercial disputes who areloath to use the court system because of thedelays and the cost. Consequently, while theother members of the review panel decidedagainst sharing the costs of the program (otherthan DG), they expressed considerable supportfor the concept of ADR— and mediation inparticular— and its potential fit with their ownprojects.4

B. Relation to the Courts

The nascent mediation system is shapingup to be more of a complement to the courtsystem rather than a substitute or a catalyst forchange. Because mediation is such a new idea, itis hardly used as a substitute. At the same time,it is finding advocates in businessmen and otherswho find the courts too time-intensive andincredibly inefficient. If a few successfulcommercial mediations are concluded andpublicized, the willingness of entrepreneurs toturn to mediation as a means of resolving theirdisputes will greatly be enhanced.5

Currently, there is very little legislationgoverning mediation in Ukraine. As a result, therelationship between the mediation system andthe court system lacks clarity. While this doesnot currently present a problem, it will become

4 In particular, the privatization officials identified

several areas in which they envisioned ADR skillsmight be used, e.g., training trade union officialsinvolved in the restructuring of enterprises infacilitation skills or training those involved in theenterprise land sales (formerly state-ownedenterprises selling off parts of their property) inprocess design and mediation skills. Interview,12/4/97.5"It is understandable that an effective alternative tothe court system at least in civil cases will definitelyfind a market in Ukraine, especially newbusinessmen who do not have time and wish to dealwith our legislation, but are in a hurry to makemoney.” Op cit. Kiselyova, p.3.

an issue in the future. As mediation is legislated(which it will be— it is only a matter of timeaccording to the government officialsinterviewed), clients will need to have a clearunderstanding of what their rights are withrespect to choosing mediation over litigation. Atpresent, a major drawback in the development ofa constructive and efficient relationship betweenthe two systems is that it is illegal to negotiate ormediate settlement to a case once it has been filedin court. If the parties wish to settle outside theauspices of the court, they must withdraw thecase and forfeit their filing fee. The lack ofcoherency in this policy may cause clients to shyaway from mediation and it will certainlyundermine the potential effectiveness ofmediation as a means of resolving disputes thatcould easily be settled.

However, there is enthusiasm for thejudicial and mediation systems to be more closelylinked. Interviews with a judge from Donetskindicate that the younger generation of justices isexcited about the possibility of mediation andperhaps even the establishment of a court referralprocess for civil suits. This judge indicated thatmediation had the potential for resolving many ofthe civil suits that come before her far moresatisfactorily for the parties than do the courts. In fact, she is participating in the training offeredby the Donetsk group in order to improve herskills at dealing with disputants in court. Unfortunately, older judges continue to expressresistance to the idea of mediation, as theycontend that mediation has no legal basis inUkraine.

C. Political, Cultural, and FinancialFactors

In addition to its relationship to the courtsystem, there are several other factors thatimpact the future growth and sustainability of amediation system in Ukraine. First, politicalsupport, which is critical for the survival of themediation programs, is building slowly.Depending on the location of the regional office,support has been gained at various levels ofgovernment. From Kiev, for example, the UMGhas the tacit support of the national government


and several government officials haveparticipated in training programs. In Lugansk,efforts have been made to build a constituencywithin the oblast, or regional government circles.This government support is necessary iflegislation conducive to an effective mediationprogram is going to be written. At the sametime, Ukrainians remain distrustful of thegovernment and too much governmentintervention may kill the program. This isespecially true if the government were to beoverly involved in the administration of amediation program.6 Borisov, for example,maintains that mediation should be within thepurview of independent organizations— notgovernment. Nonetheless, without the politicalsupport to generate the momentum for legislationto operate legally, the mediation groups will notbe able to expand as rapidly as they might.

Another factor that will influence thesuccess of a mediation program in the Ukraine isthe need to overcome Soviet-era norms andculture. While the use of third parties to resolvedisputes is not unheard of in Ukraine— indeed,the Communist Party committees used to becharged with resolving disputes in thecommunity— the voluntary and consensualprocess advocated by the UMG is very new. Theacceptance of this idea requires an attitudinalshift by an individual and his or her perception oftheir ability to effect change in their world, whichis nascent at best.7 In addition, there is a tension

6. There are two government “sponsored” mediationprograms learned of during the visit: one run out ofthe office of the President and a second run out ofthe Ministry of Labor. The President’s initiative isnot well-thought of simply because it is associatedtoo closely with government (and hence susceptibleto corruption). The MOL efforts have met withsome success, partly due to a limited mandate. TheMOL officials interviewed indicated that the creationof a mediation system would be a positivedevelopment in Ukraine and that the governmentshould support the efforts of independent mediationgroups. Interview, 12/4/97.7 “[From] the absence of belief in rule of law inpeople’s minds emerged the disbelief in universal

between the concepts of transparency andconfidentiality: keeping the substantive issues inmediation confidential while sharing informationabout the mediation process itself. An example ofthis is the underdeveloped monitoring andevaluation process. The process is extremelyproblematic and as yet no systems are in place togather data on the quality of either the process orthe mediators. This largely results from people'sattitudes towards information and how it is used. In general, they are reluctant to share details ofthe mediation process, to say nothing of giving anopinion of the mediator, as they have noconfidence that that information might notjeopardize them at a later date. Unfortunately,without this information, the credibility of thesystem may ultimately be compromised.

As factors in the success of Ukraine’smediation system, human and financial resourceswill be somewhat less significant than thosementioned above. First of all, Ukraine has anextremely well-educated population, which willgreatly affect how the concept of mediation ispopularized. Indeed, there are many optionsavailable to those involved in the advertising andmarketing of mediation, given the high rates ofliteracy and Ukraine’s relatively well developedaccess to technology. This will be especiallyimportant in generating a client base formediation services. With regard to generating acadre of individuals from which mediators can berecruited, Ukraine’s human resources also makethis a manageable challenge. Thus far, there hasbeen a very positive reception of the concepts ofmediation at universities and law schools wherecourses and lectures have been offered as well asin the commercial enterprises where the DRMGhas done consulting. These make for fertile fairness and justice and consequently the disbelief inany form of fair resolution… . The main reason thatmediation as well as other new democraticinstitutions may not work within the transitionalsystem is that having lost faith in prior institutions,people do not understand or have confidence in new,democratic institutions.” For and AgainstMediation in Ukraine, by Tatiana Kiselyova,Donetsk State University.


ground for the recruitment of quality mediators.

Financial resources present more of achallenge. Until legislation is changed to permitNGOs like the UMG to generate income, theywill depend on charitable donations (i.e.membership dues), contributions from mediators,and grants from outside organizations into theforeseeable future. The UMG seems to bespending the money they receive wisely and areaccomplishing a lot for the relatively smallinvestment made by donors. Even the USAIDofficials expressed that this is a “fairly cheapinvestment” for a relatively high return.8

An encouraging sign for the financialsustainability of the mediation program is themove towards a fee-for-service system. Not onlydoes this seem inevitable, it is even expected. Certainly this will make it possible for individualmediators to sustain themselves — at present,individuals can get permission from thegovernment to set up as a small business butthose individuals often do not have the resourcesto do the accompanying advertising, marketing,and educational outreach that is necessary tokeep them afloat. As for the mediation groups, achange in the legislation will impact their abilityto sustain themselves by charging clients andselling training and other services.

There are several program design factorswhich contribute to the potential success of themediation program in Ukraine, the mostimportant of which is probably the strength of thelocal partner and its commitment to the idea ofmaking a mediation system work. While theconcept of the UMG has been influenced by inputfrom the American Arbitration Association andSearch for Common Ground, it is reallyBorisov’s commitment that will ensure thelongevity of the program. This is especially true,given that the mediation program will succeed 8 The overall budget for Democracy and Governanceprograms in Ukraine is approximately $15 million. Of this, $500 thousand has been allocated for theUkraine Mediation Group. The UMG is the onlyADR program independent of those within thejudicial reform program that is being funded byUSAID in Ukraine.

almost in spite of a lack of cultural familiaritywith this particular form of third partyintervention. The UMG was developed by peoplewho have experience in mediating labor disputesin the Soviet and post-Soviet environments and itis grounded in a cultural reality that cannot bereadily replicated by outsiders.

D. Impartiality/Neutrality of Third Parties

Another program design issue confrontedby the UMG is that of neutrality. In the Ukraine,it is expected that bias will play a role in anydecision that is reached in a problem-solvingendeavor and that the parties will not havecontrol— certainly not full control— over theprocess. In addition, public perceptions of thejustice system coupled with the public’sreluctance to embrace new ideas make theconcept of neutrality a particularly difficult oneto disseminate. The UMG and its regionalcounterparts have taken steps to introduce theidea of neutrality into the vocabulary of theirpotential clients as well as to the mediatorcandidates. This is especially clear in thetraining process.9 The style of mediation thatUMG advocates is one in which the client hascomplete control over the process, especially overthe potential solutions that are generated in thatprocess. The importance of neutrality isemphasized, particularly the clients’ perceptionof that neutrality. There is also consistency in

9 “The answer to this point probably is inherent inthe process itself. First, a mediator, being orattempting to be impartial and objective (that is themain requirement of the procedure) should haveundoubtful (sic) trust from both parties. Second, amediator should have a strong public image that willattract clients, but having made a mistake once hewill be refused this image probably till the end ofhis/her days, regardless of any formal punishmentsimposed by professional organizations and codes ofconduct. Third, the technique of mediation itselfmakes no sense for bribing, since any party mayreject a mediator without any explanation at anymoment it suspects anything wrong. The process iscompletely voluntary, and the most important aspectof the process is that mediator has no power todecide anything, so it is futile to bribe mediator.” Op cit. Kiselyova, p.5.


how all UMG mediators are trained, thusensuring that different styles of mediation— andhence differing concepts of neutrality— are notbeing taught and implemented.

E. Outreach and Education

A critical component in the programdesign process has been, and will continue to be,outreach and education. This is true for bothattracting clients and for recruiting mediators.The regional mediation groups are strugglingagainst suspicious attitudes towards third partyintervention, especially intervention that gives theparties control over the process. While this willbe a challenge, the problem has been identifiedand it is being addressed in many ways. Fundingof these efforts is an issue for the regionalorganizations and they are trying to be innovativeas to what media and other educational vehiclesthey use to publicize mediation. In Donetsk, forexample, the DRMG offers seminars, giveslectures at the local university and law school,encourages judges to participate in the training,and relies on word of mouth through itsvolunteers. In Lugansk, the regional mediationgroup is using a wider range of media to reachthe population and in Kiev, the group hasdeveloped plans to target trade union andgovernment officials with informationalseminars.10

10The Lugansk Regional Mediation Group has beenmore innovative in its advertising and awareness-raising efforts. In order to advertise their mediationservices better, they have joined with other agenciesto form a coordination council of socialorganizations in the Lugansk region. These otherorganizations (i.e. family planning programs, thesociety of psychologists, etc.) are helping to spreadthe word about mediation and the mediation group. In addition, the LRMG has established a relationshipwith several newspapers and articles have beenwritten about the activities of the LRMG and themediation committee at the plant. The LRMG alsoarranged to have the final day of a three-day seminaron mediation televised in order to publicize theirwork.

F. Monitoring and Evaluation

A final piece of the program designprocess is the monitoring and evaluation system. At the present time, there are virtually nosystems in place for monitoring the performanceof mediators, monitoring compliance withagreements, or judging client satisfaction. TheUMG intends to develop a follow-up protocol forthe purposes of gaining information aboutcompliance and to determine client satisfaction,but that has not yet been completed. Thedifficulty lies in attitudes towards informationsharing— according to the executive director ofthe UMG, many participants in the process haveexpressed a lack of willingness to be contactedfollowing mediation. This largely seems to bedue to confusion about what kinds of informationwill be collected for the evaluation. The fearseems to be that information about thesubstantive outcome of the case will be sought,thus making clients nervous about participatingin the process. USAID and the UMG are nownegotiating evaluation guidelines that seek tohighlight process issues, not substantive ones.

Given that the program designers arefacing a number of challenges as they implementthe mediation program, the issues of monitoringand evaluation seem even more critical. Withoutsome means of getting feedback from clients asto their impressions of the process and the qualityof the mediator, it will be very difficult tomaintain the credibility of the system and indeed,the entire concept of mediation. It will also bedifficult to make mid-course corrections in thetraining in order to improve the quality of themediators or to respond to the needs of the clientpopulations. The UMG’s ability to attract donorsmay also be compromised, as donors generallylike to see a clear system of measuring clientsatisfaction in place.

At the same time, as a system isdeveloped, the designers will have to work withinthe parameters of the culture. There may beother means of collecting data and disseminatinginformation about mediators that do not overstep


cultural bounds or threaten the sustainability ofthe system. The test will be the success of themonitoring and evaluation system that the UMGis currently developing.

III. ASSESSMENT

The mediation program in Ukraine isrelatively new and is operating in a dynamic,changing culture. As such, there are manychallenges that must be overcome for theprogram to succeed. There are three areas whichwill be critical to the success of the program: thegovernment support that mediation and otherADR programs receive; the cultural attitudestowards new ideas, especially those that involvethe sharing of information; and the quality ofmonitoring and evaluation systems. Withoutgovernment support, the mediation program willoperate on the margins of newly emergingjudicial and economic cultures. At present, it isincredibly difficult for the regional organizationsto build capacity or infrastructure because of thelack of appropriate legislation.

A second area which will impact thesuccess of the program are cultural attitudes. Ina sense, if it is to succeed, the UMG will do so inspite of prevailing attitudes. There are otherfactors that will drive the success of the program. These include the expressed needs ofentrepreneurs for some access to ADR, the needsof enterprises which are privatizing to have someinternal means of conflict resolution to deal withthe resulting social upheaval, and generalfrustration with an ineffectual justice system. USAID and other donors should look for stronglocal partners to ensure that these culturalattitudes are addressed via informed projectdesigns that are rooted in the cultural realities onthe ground.

Finally, the lack of a monitoring andevaluation system is an important drawback tothe current system, making it very difficult tomaintain the credibility of mediation as aneffective means of conflict resolution. Inaddition, the reputation of the program maysuffer because there are no readily availablemeans to discipline mediators who behave

inappropriately, marketing and advertising willbe less credible because of a lack of hard data oncompliance rates, and there will be no means offeeding client evaluations back into the system. This being said, a system is being developed andit remains to be seen how successful the UMGwill be in making that system operational.

Despite these drawbacks, the mediationprogram has a lot of potential. There are threefactors which will contribute to the UMG’ssuccess: the quality of available humanresources; the potential for financialsustainability; and perhaps most importantly,innovative approaches towards the kinds of casestargeted, the kinds of services offered, andmarketing strategies. As mentioned before,Ukraine has a very well educated population thatwill provide an excellent pool of potentialmediators. A well-educated client base alsomeans that the advertising and marketing will bemade easier. Perhaps most importantly, there isa profound sense of commitment and enthusiasmon the part of the founder and those who work inthe regional organizations to both the concept ofthird party intervention and to educatingUkrainians about ADR.

The mediation program in Ukraine ismoving towards a fee-for-service model that willgreatly enhance its sustainability. The interest ofyoung, enterprising entrepreneurs in ADR, andtheir apparent willingness to pay for the services,bodes well for the program’s financial future.

Finally, the UMG is very innovative inseveral key areas. First, the regional groups areattempting to meet a stated need within thecommercial sector. At the same time, they arenot limiting themselves to those cases initially sothat they might build their skills and popularizethe idea of mediation. Second, the UMG isexpanding beyond simply offering mediationservices to individual clients. The consultingservices, seminars, and courses offered atuniversities and law schools are providing muchneeded revenue and exposure to all of theregional groups. Third, the groups are targetingsome very specific audiences to market the ideaof mediation. They have accessed trade unions in


Kiev as a means of disseminating informationabout mediation and the other services of theorganization and are using the privatizationprocess to access large, state-ownedorganizations. This marketing strategy will helpreach a great number of the target audience.

This program could potentially havecollateral impact on government processes, bothin terms of legislation about ADR and in terms ofinfluencing reform in the court system.Admittedly, that may be a long way off, but thereis great impetus to find more efficient means ofresolving conflict than what the courts currentlyoffer. There also seems to be potential toinfluence how government operates. In Lugansk,the regional government is on board and has evenasked for training for a government ombudsman. The same could be done on the national level,continuing to target officials like those in theMinistry of Labor to include in training and otherseminars.

Another impact that the mediationprogram might have is contributing to improvingconditions within Ukraine’s industrial sector. Itis a sector that is experiencing extensive changeand the mediation groups are providing a widerange of services that could make that transitionsmoother. The UMG mediation program'ssuccess could also spur interest in other potentialuses of ADR (especially mediation) in connectionwith other USAID projects, such as those linkedto privatization of state-owned enterprises. Lessons from the UMG experience are especiallysignificant as USAID thinks about the kinds ofprograms it wants to support and the relativelygood return made, to date, on the investment inADR.

* * *

Appendix C 1

Appendix C

METHODOLOGY

As directed by the USAID work order, this ADR Guide was developed using information fromseveral sources. The three primary sources of information were: existing studies on the use of ADR, fieldresearch in five developing countries, and guidance from ADR experts and USAID staff.

We began by developing an overall research strategy. As suggested by USAID, we designed theliterature review to generate hypotheses about the conditions under which ADR programs are likely to meetUSAID's development objectives. We then gathered available studies (both published and unpublished) onthe use of ADR in developed and developing countries, and analyzed them using a standardized protocol.1 We summarized our preliminary findings from the literature review and presented them to an advisory groupof ADR experts2 and to USAID staff. We also prepared a Working Bibliography of the developing countrystudies we reviewed.

As we completed the literature review, we began selecting the countries for our case studies. Assuggested by USAID staff and the Advisory Group, our primary criteria for country and case selection were:

• Including countries at similar levels of social and economic development, but differing in their legalsystems (i.e. some with civil and others with common law systems).

• Including countries at different levels of development but with similar legal systems.• The existence of one or more USAID-supported ADR programs that had been operating for long enough

to provide useful operational and impact data.• Interest among USAID mission staff in helping our field researchers to conduct a field study.• Representation of a variety of ADR procedures.• Representation of a variety of disputes to which ADR procedures were being applied.• Regional diversity (representation of countries in Africa, Asia, Latin America, Eastern Europe/New

Independent States). • Diversity in national levels of economic development and legal institutions.

1 Our literature review team included Carolyn Logan and Anthony Wanis St. John, graduate students at the FletcherSchool of Law and Diplomacy at Tufts University, and Christian Duve, graduate student at Harvard's John F.Kennedy School of Government. Jane McCluskey, an independent consultant, and Alfredo Larrea of CMG assistedthe team in collecting documents.2 CMG's Advisory Group includes Professors Frank Sander and David Smith of Harvard Law School, RobertRicigliano, CMG Executive Director, Diana Chigas, CMG Regional Director, and Antonia Handler Chayes, CMGSenior Advisor. The Group was called upon to provide advice at key points in the project, as described in the text.

2 Appendix C

After identifying countries and ADR programs to research, we developed guidance for our fieldresearchers based on our preliminary findings.3 We asked the field researchers to explore whether and howthe background and program design factors we hypothesized as having the greatest effect on programimpacts had in fact influenced the program(s) they researched. We also encouraged them to identify andexplain other background and program design factors that helped explain levels of impact in the cases theystudied. With assistance from USAID’s Center for Democracy and Governance, our field researchers thencontacted USAID mission staff with ADR program management responsibility, planned, and carried outtheir field visits.

The field researchers spent between four and ten days in each country they studied. During theirfield visits, they interviewed:

• USAID mission staff with ADR program management responsibilities• Country counterparts responsible for ADR program goal-setting, design, and management• ADR program service providers and service users • Informed observers of ADR program operations

The field researchers summarized their findings in the Case Studies attached as Appendix B, withguidance from the CMG management team and USAID staff.

Based on the comments we received from USAID staff and the CMG Advisory Group, and on thefindings from the case studies, we revised our preliminary findings and rewrote them as the ADR Guide. Wepresented the guide in draft form to USAID staff and the advisory group, and revised it to reflect theircomments before submitting the final draft to USAID.

As directed by USAID, we have worked to make the guide as concise and readable as possible,without glossing over important issues in the design and implementation of ADR programs in developingcountries. We have included the Working Bibliography, a taxonomy of ADR terms, and Case Studies forreaders who wish to probe more deeply into the range of ADR processes and the use of ADR in individualcountries and programs.

3 Our field research team included Elizabeth McClintock, CMG Consultant (Bangladesh, Sri Lanka and Ukraine); and Carolyn Logan (South Africa), and Anthony Wanis St. John (Bolivia), graduate students at the Fletcher Schoolof Law and Diplomacy at Tufts University.

Appendix D 1

Appendix D

WORKING BIBLIOGRAPHYThis working bibliography was generated from an extensive review of literature on ADR from developingand developed countries.1 In Parts I and II below, an abstract of each document is provided. Theabstracts summarize these documents' insights into the effectiveness of ADR programs in achieving thedevelopment objectives discussed in the guide (i.e., delay reduction, increase satisfaction of disputants,increase access to justice, reduce monetary cost, increase options for disputants, and provide laboratoriesfor experimentation in dispute resolution).

I. Summaries of Evaluative Documents from Developing Countries

Bingham, Gail; Wolf, Aaron; and Wohlgenant, Tim. November 1994. Resolving Water Disputes: Conflict and Cooperation in the United States, the Near East, and Asia. Arlington, VA: IrrigationSupport Project for Asia and the Near East (ISPAN) (sponsored by USAID) (PN-ABT-448).

Countries: U.S., Middle East, and countries in the Danube, Nile, Indus, Ganges, and Mekong RiverbasinsYears: VariedObjectives: Resolution of disputes over management, distribution, and use in water disputesDesign: Target governments (local and national) and other interested corporate entities using interest-based negotiation methods and varied participants and facilitators. Impacts: Most successful in developing and allowing an exploration of more innovative/creative solutionsto water disputes; allowing the participants to shape the decision, thus increasing the likelihood that it willsatisfy their interests; improving likelihood of successful implementation of agreements; improvinglikelihood of achieving solutions, due to the direct participation of parties in reaching an agreement, andtheir knowledge and understanding of the technical issues involved in the conflict. (The combination of aconsensual negotiation process and technical or policy solution options was very effective.) Also, theprocess is voluntary, increasing the commitment to reach a positive outcome. It was least successful in cases lacking certain preconditions including: political commitment; willingness to permit the openinterchange of views; and the transparency necessary to ensure adequate information exchange.Evidence: Relatively detailed case studies of four water dispute negotiations in the U.S. and sixinternational cases.Other aspects: The report's final conclusions are: 1) that it would be appropriate to use negotiation-basedprocesses and other tools for consensus-building more often in addressing water disputes, bothtransnationally and within different countries; 2) that the process and the outcome of efforts to resolvewater conflicts can be qualitatively enhanced through the application of interest-based, dispute resolution

1 In conducting the literature review, we collected and analyzed published and unpublished literature on ADR indeveloped and developing countries, focusing on documents evaluating ADR programs, and drawing on the resources ofuniversities, international organizations, bilateral donors, for-profit and non-profit firms, foundations, and other institutesand organizations in the ADR field. In collecting documents, we canvassed all geographical regions, contacted over 100entities and conducted extensive library research.

2 Appendix D

principles and processes; and 3) that attempts at resolving water conflicts would benefit from a variety ofcapacity-building activities and the greater institutionalization of dispute resolution processes.

Blair, Harry; Staples Said, Mary; Thome, Joseph; Sabatini, Christopher . September 1994. AStrategic Assessment of Legal Systems Development in Uruguay and Argentina. USAID Working PaperNo. 192, Center for Development Information and Evaluation. Washington, DC: USAID. (PN-ABT-455)

Country: ArgentinaYears: Roughly 1992–1994Objectives: 1) Achieve the successful implementation of an ADR pilot program in Argentina; 2) financeunofficial mediation for low income populations by helping to establish legal aid/mediation centers; 3) trainand educate judges and allay fears about ADR; and 4) promote institutionalization of ADR in Argentinecourts in order to deal with backlog and provide more timely access to justice addressing small claims,family law, business/labor, and other disputes.Design: Target low income people, investors, and businesses by using training, negotiation, mediation,arbitration, and conciliation methods. Also involve legal aid staff, judges, justices of the peace, lawyers,and ministry of justice officials.Impacts: Most successful in working with the ministry of justice and the court system to provide accessto services, and in working with NGOs to build coalitions that lobby for judicial reforms such as ADR. Itwas least successful in increasing the number of users of services. It was also difficult to overcome officialreluctance to publicize the ADR work. This was due to the “intransigence” of lawyers and judges who arepart of an authoritarian and highly politicized judicial system that is not held accountable by civil society.Evidence: Qualitative data about the types of national programs in existence and the AID efforts tobolster them, based on extensive interviewing, empirical observation, and review of statistics maintained bythe institutions studied, as well as diagnostic studies and opinion polls.Other aspects: 1) Its synchronization with overall AID and other donor-supported judicial reformprojects; and 2) its strategic focus on building support where it is most likely to succeed and develop intoadvocacy for reform.

Blair, Harry; Staples Said, Mary; Thome, Joseph; Sabatini, Christopher . September 1994. AStrategic Assessment of Legal Systems Development in Uruguay and Argentina. USAID Working PaperNo. 192, Center for Development Information and Evaluation. Washington, DC: USAID. (PN-ABT-455)

Countries: Uruguay Years: Roughly 1992-1994 Objectives: Improvement of access to justice for the commercial sector; change of perception ofcommercial ADR among judges and lawyers; empowerment of non-judges to practice commercialnegotiation, arbitration and mediation; improvement of the investment climate by providing alternative forafor resolving business disputes and locating ADR outside of the courts in small claims, business/labor andother commercial disputes.Design: Target investors, businesses, and judges, by using training classes, court integration ofnegotiation, mediation, arbitration, and conciliation methods; also, provision of classes to judges, legal aidstaff, judges, justices of the peace and lawyers, ministry of justice officials.Impacts: Most successful in providing short term methods for improving legal and regulatory climate forinvestment due to diminishing of delay and resolution of other unspecified difficulties associated with the

Appendix D 3

courts. It was least successful in overcoming opposition of judges in Uruguay despite the introduction ofjudicial reforms.Evidence: Includes qualitative data about the types of national programs in existence and the AID effortsto bolster them, based on extensive interviewing and empirical observation; one or more polls of judges,justices of the peace and lawyers; interviews with business leaders and commercial sector NGOs. Theevidence is generally persuasive.Other aspects: Synchronizing ADR efforts with overall efforts at judicial reform that would obviouslyfacilitate certain ADR techniques in court, such as the initiation of oral procedures and other reforms.AID’s strategy has been to identify the source of resistance to ADR (judges) and to focus on getting ADRinto the hands of non-judges.

Blair, Harry, and Hansen, Gary. February 1994. Weighing in on the Scales of Justice: StrategicApproaches for Donor-Supported Rule of Law Programs. USAID Program and Operations AssessmentReport No. 7. Arlington, VA: USAID, Office of Evaluation, Center for Development Information andEvaluation (CDIE). (PN-AAX-280)

Countries: Argentina, Columbia, Philippines, Sri Lanka, Uruguay (Honduras is included in the report, butdid not include ADR-support activities in its ROL program).Years: Roughly mid-1980s to 1994 Objectives: ADR activities were generally seen as contributing to two of the four specific strategiesidentified for ROL programs -- structural reform and access creation.Design: Target the public in general, and groups that historically face problems of access in particular.Target those directly involved in the legal system (attorneys, judges, court staff, etc.) using a wide range ofactivities, including (but not limited to) support for ADR, training programs for judges, lawyers, etc.(Participants varied according to activity.) The program was administered by USAID, host countryNGOs and governments, UNDP, The Asia Foundation (TAF).Impacts: Most successful in beginning with constituency and coalition building (if they do not alreadyexist) as the most effective strategy. Found that using a political economy approach to analysis and strategyplanning was the most effective tool, due to the fact that legal system changes affect power relations. Technical changes are ineffective when supply (elites) and demand (public) constituencies are notsupportive of the changes. It was least successful in attempting legal system strengthening in the absenceof necessary preconditions. Also, technical fixes or engineering approaches to institutional change wereleast effective for understanding and prescribing processes of ROL reform.Evidence: The authors provide a thorough review of a variety of ROL programs (in progress andcompleted) in these six countries. Evidence is generally persuasive.

Centro Sobre Derecho y Sociedad, CIDES. 1993-96. “Evaluation Report” (four reports covering 1993-1996). Quito, Ecuador: CIDES.

Country: EcuadorYears: 1993-1996Objectives: Increase access to democratic participation in conflict resolution in civil disputes.Design: Targets lower income urban and rural populations, using mediation training methods andcapacity-building among local, pre-existing neighborhood organizations to build local centers for mediationof conflict.Impacts: Most successful in establishing four permanent functioning mediation centers linked to local

4 Appendix D

organizations. It was successful in resolving neighborhood and local disputes while beginning to facilitatethe acceptance of mediation. It was least successful in establishing its stated goal of establishing anational mediator network.Evidence: Includes interviews/questionnairesOther aspects: The mediators represented groups of indigenous communities who were organized into twodistinct “federations”. The mediators worked across federation lines. Also, the mediators used customarypractices of symbolic reconciliation and punishment, among other practices drawn from the local culture.

Chodosh, Hiram E., and Mayo, Stephen A. Forthcoming 1998. “Indian Civil Justice System Reform:Limitation and Preservation of the Adversarial Process”, NYU Journal of International Law and Policy,vol. 30.

Country: IndiaYears: 1997/1998 recommendations for reformObjectives: To overcome huge backlog (25 million cases) and delay (up to 20 years) problems, improveaccountability, discipline, and versatility of the justice system to more effectively resolve disputes in thecivil justice system.Design: Target the general population that uses the civil justice system, using improved courtadministration and case management procedures, and expanding (ADR) options to include judicialsettlement, early neutral evaluation, and mediation, in addition to already existing ADR options ofarbitration and conciliatory settlement in Lok Adalats. Impacts: Most successful in developing a realistic set of recommendations and creating a sound, two-phase implementation plan for carrying out the reforms. Success is due to the widespread consensus amongIndian legal professionals and the public that reform is desperately needed.

Community Organization Training and Research Advocacy Institute (COTRAIN). 1996. Toward anEnhanced Mediation of Agrarian Disputes. Manila: COTRAIN.

Country: PhilippinesYears: 1996Objectives: To reduce case backlog, speedier and more just resolution of disputes in land reform cases.Design: Target landowners, tenants, and land claimants using mediation training methods for 700+members of local mediation committees representing the Dept. of Agrarian Reform, local government andcommunity based NGOs.Impacts: Most successful in building participants’ knowledge of the mandated mediation process andtheir mediation skills, thanks to a skilled mediation team with high level support within the Dept. ofAgrarian Reform, and the training of 20 new mediation trainers. It was least successful in catalyzingadditional financial or institutional support for local committees, because of tight agency budgets.Evidence: Evaluation of the current mediation system and its shortcomings (including quantitative backlogdata and qualitative evaluation of problems), description of the training program (including process,description, and quantitative data on numbers trained) and evaluation of initial results (includingquantitative data on number of mediations undertaken by trained committees and qualitative data onchanges in mediation practices). Evidence is generally persuasive.Other aspects: Strong grounding of the training in both Filipino community and interest-based mediationpractices developed in the U.S.

Appendix D 5

Development Associates, Inc. (DAI). April 21, 1993. Asia Democracy Program Evaluation Report. Arlington, VA: DAI (PD ABG-648).

Countries: Thailand, Nepal, Sri Lanka, and the PhilippinesYears: 1988- 1992 (Many of the projects were short-term.)Objectives: Strengthening democratic institution and practices in concert with advancing economicdevelopment in political and economic decision making and administration of justice.Design: Targets the entire population of these countries, using a wide variety of activities, including:public education regarding rights and the law; support for ADR mechanisms; and reviving traditionaldispute resolution processes. The program was administered primarily by indigenous NGOs,sometimes via US PVOs, especially The Asia Foundation (TAF), the Asian-American Free Labor Institute(AAFLI), and Private Agencies Collaborating Together (PACT), and supported/funded by USAID'sregional Asia Democracy Project (ADP), as well as individual country missions. Impacts: Most successful in overall design and implementation of the ADP, thanks to good workingrelations with governments and implementing NGOs, and good support from the regional office. It wasleast successful in providing adequate basis for evaluation, because of difficulty in identifying adequateindicators, the short duration and/or early stage of many projects, and the need for better statistics andbetter information sharing. Evidence: Interviews, review of 43 projects at various stages of implementation, visits to country offices.

DPK Consulting. (No publication date, approximately 1994-1996). Proyecto BID: Colombia:Resolución de Conflictos. San Francisco: DPK Consulting.

Countries: Colombia, funded by the IDB.Years: Approximately 1994-1996.Objectives: Low cost access to increased conflict resolution services in private sector disputes.Design: Targets users of the Bogota Chamber of Commerce (BCC) and users of Ministry of Justice(MOJ)-created centers using a combination of institution-building, capacity-building, training ADR‘multipliers’ who were to go out and sponsor their own events on ADR, as well as providing unspecifiedconciliation services using locally trained personnel.Impacts: Most successful in helping the BCC to become a model ADR institution for all of LatinAmerica, thanks to having a nucleus of highly trained people, and thanks to its previous (pre-IDB funding)ADR program experience, dating to 1991. It was least successful in reaching middle and low-incomeclients through the BCC project, due to failure to define client population in the original project design andfailure to conduct appropriate public relations campaign. In general, the projects failed to address theproblem of extreme social violence and the consequent need for ADR to be an agent of socialtransformation, due to its failure to explicitly acknowledge this reality in the project proposal.Evidence: Narrative analysis of the aspects of the IDB-financed programs.Other aspects: 1) while there is some validity to the conclusion that there has been a sustained increase inthe options available to disputants, only 20 of the initial 150 national centers are or were functioning; 2)MOJ centers also seem to have set out to prepare community leaders, but problems arose when communityleader candidates were accused of links to guerrillas or narco-traffickers.

DPK Consulting. January 1996. Evaluación del Centro de Mediación Para La Resolución de

6 Appendix D

Conflictos. San Francisco: DPK Consulting.

Countries: Costa RicaYears: May-September 1995.Objectives: Resolution of family disputes without recourse to the courtsDesign: Targets families using mediation and a mediation center under the executive branch agency knownas Patronato Nacional de la Infancia.Impacts: Most successful in attaining high indices of successful case resolutions (60%), withoutattributing this success to any cause. It was least successful in resolving a significant number of disputesand therefore alleviating the burden on the court system due to an over-filtering of cases that werepermitted into the mediation center, which the authors claim is due to the preoccupation with successfulresolution of cases. The authors also were concerned with the proper handling of domestic and child abusecases, and whether such cases should be mediated at all.Evidence: A Gallup poll of the users of the mediation center and the self-generated reports that came fromthe Center itself is generally persuasive.Other aspects: The seemingly national debate over whether the mediation centers should be administeredby the Executive or the Judicial Branch. The authors thought this to be of great significance due to theGallup poll's indication that public trust was placed in the judicial branch, with respect to the provision ofthese types of services.

Foraker-Thompson. 1992. "Traditional Conflict Resolution Methods Used in Black Townships in SouthAfrica, " International Journal of Group Tensions, vol. 22, no. 3, pp. 165-190.

Country: South AfricaYears: 1980s and early 1990s. Objectives: An alternative to the violence in the townships on which media have focused. As theinstitutions of the state were increasingly rejected, the community sought to create communitycohesion/social solidarity, build alternative structures to deal with major issues, give expression to the willof the people, and wrest the initiative from the state structures (the state responded with increasedrepression). The alternative institutions included systems of "people's justice" such as "people's courts" inany issues of community conflict, including cases of assault, theft, and robbery.Design: Targets all of the members of a given community or township using a mix of court-style (judicialor committee judgment) and ADR methods, especially mediation with people chosen by the localcommunity. The program was administered by community members, and supported/funded by localcommunities. Impacts: Most successful in helping to control crime and violence in the townships, due to the courtsbeing run by members of the community in ways consistent with community norms. Met a majorcommunity need, filling a gap that the government was unwilling or unable to fill. It was least successfulafter the government cracked down on local political organizations in 1985 (feeling that local communitieswere encroaching on the state's territory). Many of the organizations could no longer function, and some ofthe participants/leaders were even jailed. As a result, tsotsis, or local thieves, ran rampant in many of thetownships (with police collusion), and crime and violence increased. Even at their best, these alternativemethods of self-government and dispute resolution were not always strong enough to maintain peace incommunity, due to the state being viewed as both illegitimate and ineffective as a forum for justice. Levelsof social and political turmoil were very high, and the white government deliberately worked to undermineblack efforts at self-government.

Appendix D 7

Evidence: Largely descriptive, covering the history, evolution, and political foundations of the courts. Other aspects: Includes discussion of traditional African social solidarity and as it relates to the dynamicsin present-day neighborhoods and townships.

Garro, Eduardo. 1995-1996. Informe Operativo I, Informe Operativo II , (plus other untitled documentsby this author). San José, Costa Rica: Centro de Mediación.

Country: Costa RicaYears: 1995-1996Objectives: Resolution of family disputes without recourse to the courtsDesign: Targets poorer families using mediation methods and an interdisciplinary mediation center underthe government agency, Patronato Nacional de la Infancia.Impacts: Most successful in attaining high indices of successful case resolutions (60%); providing accessto less advantaged sectors of society (those with low education levels, the unemployed). Attained highindices of user satisfaction, thanks to the active listening of disputing parties which took place in theelaborate “filter” stage, and the work of the mediators, who facilitated just agreements. It was leastsuccessful in sustaining itself as a functioning part of government services due to the refusal of relevantauthorities to take fiscal and administrative responsibility for the center’s operations.Evidence: A Gallup poll of the users of the mediation center; intake and exit information on cases; and theself-generated reports. The evidence is generally persuasive.Other aspects: Clear criteria concerning cases that were not to be mediated and their evaluation throughan elaborate and stringent “filter” process.

Gessner, Volkmar. 1986. “Los Conflictos Sociales y la Administración de Justicia en Mexico” (SocialConflict and the Administration of Justice in Mexico). Mexico, DF:Universidad Autonoma de Mexico.

This document is fundamentally a sociological dissertation on social conflict in Mexico and ADRprograms.Country: MexicoYears: 1969-1970Objectives: Resolution of labor disputesDesign: Targets businesses and workers using conciliation and arbitration methods with governmentagencies and government officials as arbitrators.Impacts: Most successful in disposing of disputes (not necessarily resolving them) often in less than oneyear’s time, at most in four years with appeals. It was least successful in informing workers of theirrights, adequate enforcement, equitable procedure, provision of counsel, due process, and orderly proceduredue to corruption, etc.Evidence: Empirical observation, extensive surveys, quantitative summaries, as well as sociologicalanalyses of these. Evidence is generally persuasive, although only of historical use.Other aspects: At the federal level the distance required for workers from all over the country to travel tothe capital in order to use the Federal Conciliation and Arbitration institutions. Also, the reimbursement ofthe workers’ travel costs, the lack of court costs, the postponement of attorneys’ fees until a favorabledetermination, the continuation of salary during the proceedings.

Hanson, Gary; Said, Mary Staples; Oberst, Robert; Vavre, Jacki . February 1994. A StrategicAssessment of Legal Systems Development in Sri Lanka. USAID Working Paper No. 196. Washington,

8 Appendix D

DC: USAID. (PN-ABT-456)

Country: Sri LankaYears: 1990-93Objectives: Strengthening of the country's democratic institutions, including restoring the stature of thelegal system by making it more accessible and responsive. No limits on cases were identified, but thosehandled, in order of importance/volume, are loan cases, land disputes, minor crimes, license/tax cases, andfamily issues.Design: Targets the general populace, but especially those of moderate or low income using mediationboards trained by local volunteers. The program was administered by the Government of Sri Lanka, andsupported/funded by the Sri Lankan government with support from the Asia Foundation and USAID .Impacts: Most successful in creating an effective, inexpensive, and popular alternative forum for disputeresolution, due to: 1) the ability to learn from and correct the mistakes of the failed conciliation councils (anearlier effort to provide a mediation alternative) to ensure that the boards did high quality work and did notbecome overly politicized or too much like courts themselves; and 2) the dedication of the volunteermediators and the fact that they are respected community members. It was least successful in assuringlong-term sustainability, remaining independent, and not becoming either a political tool or a tool of thebanks for collecting on defaulted loans (although both of these problems are just dangers at this point, notreality).Evidence: Responses to interviews with board chairs, direct observation of the boards' activities, and areview of 1528 cases handled. Evidence is generally very persuasive.Other aspects: History--the use of mediation has a long history in Sri Lanka (dating to the pre-colonialera), and conciliation councils were set up early in the post-colonial period. However, these councils wereabolished in 1978 as they had become politicized and suffered from other problems that led to a decline intheir effectiveness and credibility. The courts soon became over-burdened, so a second attempt was made todevelop alternative systems. The mediation boards were established in 1988 (although they did not becomeactive until 1990), but with new rules that tried to avoid the conditions that had led to the earlier failure ofthe conciliation councils.

Huang, Shir-Shing. 1996. " The Reconciliation System of the Republic of China," in Eds. Fred E. Jandtand Paul B. Pedersen, Constructive Conflict Management: Asia-Pacific Cases, pp. 43-50. ThousandOaks, London and New Delhi: Sage Publications.

Country: Republic of China (Taiwan)Years: 1955-presentObjectives: To provide for dispute resolution in a manner consistent with local norms and customs;prevent courts from becoming overburdened in civil and criminal cases.Design: Targets the general public using mediation committees of 7 to 15 people established in eachvillage, town, district and city ("reconciliation commission" seems to be used interchangeably withmediation committee); volunteer mediators who are respected (and often personally known to disputants),have knowledge of the law, and live in the village/town/city; at least one woman per commission; chiefs,mayors and civil servants are not eligible. The program was administered by Ministries of Justice andInterior in conjunction with local governments, and supported/funded by local government, with someassistance from the national government.Impacts: Most successful in resolving many cases in a manner consistent with local norms andpreferences, thanks to a long history of mediation in China and the preference for peaceful/harmonious

Appendix D 9

resolution of disputes rather than litigation. Mediators are respected individuals; regular supervision andassessment of mediators' work; seminars for and training of mediators each year; government efforts topromote this mechanism for conflict resolution; system is free, open, convenient and "as effective as courtdecisions".Evidence: The numbers of cases being handled, some other data, and one case study. Evidence isgenerally sparse, but what there is, is persuasive.Other aspects: Cases are brought to the mediators by formal application if at least one party; both partiesmust consent in civil cases, and the victim must consent in criminal cases, before the process can begin. Ingeneral, the process is public; courts handle primarily criminal cases, they do few civil cases.

Jandt, Fred E., and Pedersen, Paul B. 1996. Constructive Conflict Management: Asia-Pacific Cases. Thousand Oaks, London and New Delhi: Sage Publications. Summary of a number of case studies onChina.

This book includes several case studies on China. None of them has sufficient specific information towarrant a separate summary, but points about the various mediation systems used there are discussed: therole of village mediators; cultural roots of mediation; features of court mediation (more than 70% of civilcases handled in the People's Court are settled via mediation); over 1 million village-based People'sMediation Committees (PMC) handling more than 7 million civil disputes annually, created by the 1982constitution with 3-11 volunteer members each.

Jandt, Fred E., and Pedersen, Paul B. 1996. "The Cultural Context of Mediation and ConstructiveConflict Management," in eds. Fred E. Jandt and Paul B. Pedersen, Constructive Conflict Management:Asia-Pacific Cases, pp. 249-275. Thousand Oaks, London and New Delhi: Sage Publications.

This chapter provides an excellent overview of the title subject, drawing lessons related to ADR and, e.g.,high v. low context cultures, effective third parties, neutrals, mediation in Asian-Pacific cultures.

Jones, Christopher B. August 1991. Exploring Alternative Dispute Resolution Techniques in the Asia-Pacific Region. Honolulu, HI : Hawaii Research Center for Future Studies, University of Hawaii.

Based on a review of multiple case studies of ADR programs in the countries of the Pacific Basin, in astudy that was designed to examine the potential for incorporating cultural dispute resolution processes intoformal legal systems, the author highlights the following dichotomies pertaining to ADR: informal/formaltypes of ADR; rural/urban; agricultural/industrial societies; proximity/distance between the disputants, andbetween mediators and the disputants; voluntary/coercive ADR; authoritarianism/participation of thirdparties.

Kassebaum, Gene. 1989. ADR in India: The Lok Adalat as an Alternative to Court Litigation ofPersonal Injury and Criminal Cases in South India. Working Paper Series 1989-5. Honolulu: Universityof Hawaii at Manoa, Program on Conflict Resolution (PCR).

Country: IndiaYears: 1974/82 - 1988 (The Lok Adalats first started in some parts of the country in 1974, but in many

10 Appendix D

states they were not established until 1982.) Objectives: Reduce the caseload on courts, reduce costs and increase speed of resolution of cases;increase access to and equality of justice for ordinary people, especially for personal injury cases involvingvehicles, protect the weak from unnecessary litigation in personal injury cases (especially pedestrian-vehicle), and in some criminal and civil cases.Design: Usually cases are between a relatively poor pedestrian and a relatively wealthy company/vehicleowner. The program was administered by state Legal Aid Boards, and supported/funded by state LegalAid Boards, apparently. Impacts: Most successful in achieving faster and lower cost resolution of many cases (though still onlyabout 20% of all personal injury/vehicle cases); better chances of achieving some resolution of claims(victims generally have low expectations of recovery from accidents), due to simplicity of the process,respectability and expertise of the mediators, long tradition of community-based mediation, activepromotion of the program by some of the state legal aid boards. It was least successful in providing realbenefits and better access to justice for the poor, because cases have to be filed in the courts first, whichinvolves some costs. The poorest are still not likely to be assisted when they are injured; power relationscan also influence outcomes; there may be too much emphasis on clearing dockets, and not enough oninsuring justice for the poor.Evidence: Numbers and types of cases and outcomes from Lok Adalat records; interviews andconversations with many mediators, lawyers/advocates, members of District Legal Aid Boards; directobservations of Lok Adalat proceedings. The author notes the problem with the lack of systematic data onmany aspects of the program, and on comparisons with the court system, which would be costly to obtain,but is necessary to properly evaluate the effectiveness of Lok Adalats. Evidence is generally persuasive.

Lytton, Timothy and Centeno Rivas, Salvador. Upcoming 1998. "La Resolución de los Conflictos enNicaragua." In upcoming DPK Publication (William Davis, ed.)

Country: NicaraguaYears: 1990 to 1997Objectives: Improvement of access to dispute resolution services in the absence of strong legalinfrastructure and due to the social and political deterioration caused by civil war in labor, human rights,land title, property, personal, and political disputes.Design: Targets civil society (educating the public and even primary/secondary school), trainingpractitioners of ADR using education concerning a new “culture of peace”, education about conflictresolution, negotiation training, arbitration, mediation training methods and “local peace and justicecommissions”, peasant leaders, police, lawyers and judges.Impacts: Most successful in affecting the cultural environment of conflict and anarchy in Nicaragua,though no explanation is offered. They were least successful in actually realizing conflict resolution goalsfor the public because of the weakness of legal infrastructure, inadequate laws, and insufficient numbers oftrained ADR practitioners.Evidence: Minimal data which is primarily descriptive. It is generally persuasive. (The purpose of thearticle is not to evaluate these programs per se, but to offer insights into the cultural and institutionalobstacles that ADR faces in Nicaragua.)Other aspects: The educational aspect/cultural transformation dimensions which the author seems toimply are a necessary first step in achieving ADR gains. The article’s principle contribution is to describevarious ADR programs in existence in Nicaragua.

Appendix D 11

Marques, Juan. May 1994. Institutionalization and Expansion of Court Connected Civil DisputeResolution in Puerto Rico: Mediation and Other Mechanisms. Unpublished LLM Thesis, Harvard LawSchool.

Country: The Commonwealth of Puerto RicoYears: 1983-1988Objectives: Lowering of costs, diminishing of delays and alleviation of congestion in the courts, and to actas a referral center for certain disputes in civil and criminal cases.Design: Targets various groups of complainants using mediation methods and experimental governmentagency.Impact: Most successful in all objectives.Evidence: Review/analysis of two internal studies done by the Office of Court Administration of PuertoRico. It is generally persuasive but is criticized by the author for lack of empirical bases for some findings.

Moore, Christopher and Santosa, Mas Achmad. 1995. “Developing Appropriate EnvironmentalConflict Management Procedures in Indonesia: Integrating Traditional and New Approaches,” CulturalSurvival Quarterly, Fall 1995, pp. 23-29.

Country: IndonesiaYears: 1993-1995Objectives: Cultural compatibility of dispute resolution methods, achieve negotiated settlements ofenvironmental disputes by face-to-face participation by all stakeholders, achieve increased voluntarycompliance with settlements, public participation in monitoring and implementation in the area ofenvironmental (water pollution) disputes between government/people and private sector.Design: Targets local population, environmental NGOs, industrial polluter/company using mediation andmediation training methods and ministry staff as mediators.Impacts: Most successful in introducing mediation as a culturally relevant alternative/complement tolitigation, and in introducing the idea of institutionalizing mediation and dispute resolution systems design,due to the resolution of two prototypical pollution cases. It was least successful in improvingrelationships, increasing enforcement, overcoming perception of impartiality, andimplementation/monitoring of agreements due to failure to include local government parties, culturalfactors including rank and social status that frustrated mediation, government officials as mediators withinterest in the outcome, failure to effect enforcement measures against non-compliant parties due to judicialsystem, confusion regarding the end result (appeasement v. decision-making).

Evidence: Descriptive narrative of the process and outcomes of several cases. Evidence is generallypersuasive.Other aspects: Peripheral efforts to overcome the patterns of social stratification inherent in traditionaldispute resolution “musyawarah”.

National Conciliation and Mediation Board (NCMB), Department of Labor and Employment,Government of The Philippines. Report, circa 1996. AAFLI and the Voluntary Arbitration System in thePhilippines.

Country: Philippines

12 Appendix D

Years: 1989-1996Objectives: Prevention and improved resolution of labor disputes to enhance political, economic andsocial stability in labor-management relations (initially primarily in unionized, private-sector relations).Design: Targets labor unions and management using voluntary arbitration methods and volunteerarbitrators (including trade unionists, academics, law practitioners, personnel managers, and industrialrelations practitioners). The program was administered by the National Conciliation and MediationBoard (NCMB) of the Department of Labor and Employment, and supported/funded by USAID andAAFLI.Impacts: Most successful in strengthening collective bargaining, serving as an alternative to strikes,speeding up the delivery of labor justice, and unclogging the compulsory arbitration system, thanks to: 1)active promotion of the approach by the government (with the support of AAFLI and USAID), includingpromotional material and workshops; and (2) the success in speeding up resolution of cases.Evidence: Numbers/amount of promotional and educational material prepared, arbitrators trained, andcases handled by the system. Evidence is generally persuasive, though limited. More information on thetotal number of labor disputes, numbers of strikes, etc., would be helpful for assessment.Other aspects: Activities currently under way or planned to expand this approach to non-unionizedworkers and public-sector workers, and there is also interest in expanding the use of voluntary arbitrationbeyond labor-relations issues into the domain of regular courts.

Nina, Daniel. Fall-Winter 1993. "Community Justice in a Volatile South Africa: Containing CommunityConflict, Clermont, Natal," Social Justice, vol. 20., nos. 3 - 4, pp. 129 - 142.

Countries: Clermont, Natal, South AfricaYears: May – July, 1992 Objectives: All types of internal community disputesDesign: Targets all community members using mediation and many other methods and elected members ofthe local community. The program was administered/ supported/funded by the local community. Impacts: Most successful in (in theory) maintaining community cohesiveness and autonomy from thestate, because those responsible for dispensing justice are elected by and are accountable to the community.Thus their approaches and values are consistent with and aim to preserve community norms.Evidence: Compares mediation/ADR in general, with a variety of mechanisms of popular justice. Alsoreflects on the author's experience with one such system of popular justice, a case committee in Clermonttownship. Evidence is generally relatively persuasive -- the author succeeds in making the case that thesystems of popular justice, which are often ignored, need to be studied more carefully.Other aspects: Explores the nature of organic mechanisms of community conflict resolution (also knownas "popular justice" or "community justice"), and the relation between these mechanisms and the newtrends toward facilitation, mediation, and negotiation (i.e., ADR).

Othman, Wan Halim. 1996. "Community Mediation in Malaysia: A Pilot Program for the Department ofNational Unity" in eds. Fred E. Jandt and Paul B. Pedersen, Constructive Conflict Management: Asia-Pacific Cases, pp. 29-42. Thousand Oaks, London and New Delhi: Sage Publications.

Country: MalaysiaYears: 1980-present

Appendix D 13

Objectives: The programs known as the Social Relations Management System (SRMS) (ADR was onepart of this system) was designed to contribute to efforts to promote better ethnic relations; give theDepartment of National Unity (DNU) a more clear and effective role in this effort; reduce/resolve bothinter-communal and intra-communal conflict and tension; and introduce mediation services into the civilservice in all types of conflict, but especially those with inter-ethnic aspects.Design: Targets everyone using extensive training in mediation and related skills (including basiccounseling, and courses on conflict prevention and post-conflict rehabilitation). The program wasadministered by the Social Relations Management System within the DNU, and supported/funded by theGovernment of Malaysia.Impacts: Most successful in providing elaborate and continuous in-service training to several hundredofficers (new courses are still being planned for them). No other outcomes of the program are reported,despite its relatively long history. Other aspects: 1) In addition to the conflict resolution/mediation component, the SRMS also includedefforts to promote inter-ethnic contact, engage in preventive activities in conflict prone areas, andinvolvement with the post-conflict rehabilitation of relations. 2) The author notes that a problem forconflict resolution is the very negative view of conflict in the country, which causes people to conceal anddeny it. There is also pressure for individuals to conform to accepted behavior patterns and to avoidcausing or bringing forth conflicts.

Sohn, Dong-Won, and Wall, James A., Jr. September 1993. "Community Mediation in South Korea: ACity-Village Comparison," Journal of Conflict Resolution, vol. 37, no. 3, pp. 536 - 543.

Country: KoreaYears: The early 1990s (although mediation has been used for centuries in Korea). Objectives: Application of the Confucian principles of seeking harmony in interpersonal relations, and ofsaving face both for oneself and for others in all types of intra- and inter-family disputes in thecommunity.Design: Targets all community members using community-based mediation methods as well as respectedmembers of the local community or friends of the disputants who are willing to assist. The program isadministered by local communities -- there is no government involvement in this practice. Impacts: Most successful in resolving disputes.Evidence: Interviews with 34 city and 19 village mediators, with examples of two cases from each.Evidence is generally persuasive. Other aspects: Discussion of the historical bases for mediation in Korea. Also, this study aims to test thehypothesis of one analyst who has proposed that the traditional mode of community mediation cannotsurvive in communities larger than a village, since it is a process by which the whole community enforcesits "standards of propriety and decency," and these standards weaken in towns and cities. The study alsocompares mediation in inter-family versus intra-family disputes. Korean mediators consistently relyheavily on ten main techniques, such as controlling the agenda, separating and/or meeting together with thedisputants, advising the parties as to how they should think or behave in general, and arguing for specificconcessions (this is a relatively aggressive mediation approach). There were few significant differences inthe handling of inter-and intra-family disputes.

Ulloa Gonzalez, Mirtha, and Vargas Pavez, Macarena . 1997. Mecanismos Alternativos de Resoluciónde Conflictos: La Experiencia Chilena. Corporación de Promoción Universitaria Report.

14 Appendix D

Country: ChileYears: 1990-1997Objectives: Increased access to justice, legal services to the poor, quicker resolution of legal problemsoutside of the courts in family, labor, consumer concerns, land conflicts, children's rights and commercialdisputes.Design: Targets families, the poorer classes, indigenous people, businesses, and agricultural collectivesusing arbitration, mediation and conciliation methods. Involves local volunteers, lawyers, ministry staff,psychologists, social workers and others.Impacts: Most successful in meeting their objectives, although there is no significant evaluation.Evidence: The judgment of the authors: evidence is generally informative, but not predicated on soliddata.Other aspects: The sheer plurality of types of ADR programs that are government-supported, semi-official, and private. The report describes existing laws that facilitate ADR and current legislativeproposals that would further ADR. The organization which did this study (the CPU) dedicated itself tostudying and promoting ADR in Chile and contracted with USAID in 1995 to coordinate the training ofADR professionals in Chile. The presence of this group appears to have been essential in the ongoingdevelopment of ADR options and programs in Chile. As a result of CPR's work, Chile opened twomediation centers in 1996 which have been functioning and resolving high numbers of cases as apercentage of cases brought in. CPU seems to be playing a role as national ADR coordinator, insofar as itis a driving force for the study, training, education, legislative proposals and execution of ADR in Chile.The prominent role provided to non-lawyers as providers of ADR services is also interesting to note.

USAID. Post-1994. Needs Assessment for Alternative Dispute Resolution in the Philippines. Washington DC: USAID (PN-ABX 322)

Country: PhilippinesYears: 1980s - 1990sObjectives: To overcome the problems associated with the formal, adjudicated legal system, especially:delay; high cost; the incomprehensibility of the legal system to many people; and the unsuitability ofadjudication for the resolution of minor disputes, especially because they are adversarial and focus onblame and punishment, rather than on preserving or restoring long-term relationships. The authors note thatADR is especially applicable to so called “minor disputes” (e.g., family and community disputes); labor,commercial, and construction industry disputes are also discussed.Design: Targets the general population, but especially those who are poorer and less educated and so havethe most difficulty maneuvering through the formal legal system. In theory the program uses all types ofADR. In practice, the main methods currently available are mediation, conciliation and arbitration methods.Evidence: The paper is primarily descriptive, not evaluative or analytical. It describes the need and thecurrent legal framework for the use of ADR, as well as impediments to greater use.

Whitson, Sarah Leah. Spring 1992. "'Neither Fish, Nor Flesh, Nor Good Red Herring' Lok Adalats: AnExperiment in Informal Dispute Resolution in India," Hastings International and Comparative LawReview, vol. 15, no. 3, pp. 391-445.

Country: IndiaYears: Mid-1980s to 1992.

Appendix D 15

Objectives: Faster, more accessible and more approachable forums for achieving justice, especially forthe poor (the explicit objective), while at the same time expanding the domain of state control by replacingnon-state ADR systems with state ones (the implicit objective). In theory, sought to stave off the collapse ofthe formal legal system in most types of conflict, though in practice family law issues and motor vehicleclaims were the main cases covered.Design: Targets the population at large, and poor individuals in particular using mediation andconciliation in ad hoc Lok Adalat courts ("people's courts", also knows as LA courts).Impacts: Most successful in handling a large number of cases, especially motor vehicle claims (initially),thanks to the speed of resolution, the local acceptance of the processes used to settle disputes, anddissatisfaction with the formal court system. It was least successful in setting up a permanent, effectiveADR system and extending legal protection to the poor, due to the increasing control taken by the state; thetension between the formal norms of the court system and the informality of the LA courts; and the factthat the poor may actually fare better under a system of formal, procedural law.Evidence: The rapid decline in use of LA courts after an initial boom; a brief description of LA courts infour states, and the findings of several other studies. Evidence is generally persuasive with respect to theeffects of increasing state control on the effectiveness of the courts.Other aspects: The LA courts started in 1982 as a non-state means of dispute resolution. They had abrief but intense period of popularity in the mid-1980s, but then declined very rapidly, within a year inmany cases. This experience is not fully explained by the author, though the timing of the decline is closelylinked to the passage of the controversial Legal Services Act in 1987, which "defeated the spirit andpurpose of LA courts as informal, grass-roots courts that existed almost apart from state authority" bygiving them statutory status and putting them under state control. However, the linkages/causalrelationship between passage of the act and the rapid failure of the courts is not fully analyzed. The LAcourt experiment has essentially repeated the earlier experiment in the 1950s and 1960s with NyayaPanchayats (NPs), which also failed for similar reasons.

Worawattanamateekul, Nacha. 1996. "Arbitration in Thailand" in eds. Fred E. Jandt and Paul B.Pedersen, Constructive Conflict Management: Asia-Pacific Cases, pp. 183-187. Thousand Oaks,London and New Delhi: Sage Publications. (This case study just describes a program; nothing is includedabout how implementation has progressed).

Country: ThailandYears: 1987-presentObjectives: To establish and promote arbitration as a means of ADR. Through successful arbitration ofinternational commercial disputes, make Thailand the regional commercial leader; reduce the backlog ofcases in the legal system; resolve commercial disputes faster, in private, and inexpensively.Design: Targets business people using arbitration methods and 128 arbitrators, both eminent lawyers andother professionals. Parties can also nominate other qualified professionals to serve as arbitrators.Arbitrators are categorized into 15 specialties. The program was administered by the Arbitration Officeestablished within the Ministry of Justice, which is under the supervision of an advisory board composed ofrepresentatives from MOJ and other public and private sectors (the Law Society, Ministry of Commerce,the attorney general's office, Federation of Industries, chamber of commerce), and supported/funded byinternal government funds (though in some other case studies the authors just did not mention fundingsources, so it is possible that there was some unmentioned external support as well).Impacts: Most successful in promoting and establishing arbitration. Increasingly gaining acceptance forthis approach, thanks to the growing role of the business sector in Thai society; the increasing experiencewith and need for arbitration facilities; and the government's active efforts to promote this approach. It

16 Appendix D

was least successful in gaining acceptance during the early stages of the program (this has also been aproblem with past efforts at arbitration, but steps are being taken to overcome this), due to a public thatvalues the integrity, acceptability and enforceability of court awards. Some problems may also have arisenbecause different parties had competing ideas about how the national arbitration center should beestablished.Other aspects: Facilities for international commercial arbitration have been increasing in Thailand, andbusiness contracts have increasingly included arbitration clauses. Parties are free to choose any languagefor arbitration (English and Thai are most common, but Chinese is also used). Foreign lawyers arewelcome as arbitrators or legal advisers. The arbitrators' decisions are independent of the arbitration officeand government control. The arbitration office also runs the Centre of Promotion of Commercial Law andAlternative Dispute Resolution.

II. Summaries of Evaluative Documents from Developed Countries (including aboriginalcommunities)

Clarke, Stevens H.; Ellen, Elizabeth D.; McCormick, Kelly. 1995. Court-Ordered Civil CaseMediation in North Carolina: An Evaluation of Its Effects, Prepared for The North CarolinaAdministrative Office of the Courts. Chapel Hill, NC: State Justice Institute, Institute of Government,University of North Carolina at Chapel Hill.

Country: Superior court civil cases in North Carolina, USAYears: March 1992 to January 1993Objectives: Make the operation of the superior courts more efficient, less costly, and more satisfying tothe litigants by using mediated settlement conference (MSC) methods and by comparing cases assigned toeither a mediation group or a control group to civil cases filed with a pre-program group.Impacts: Most successful in increasing litigants' satisfaction with the process, thanks to the perceptionthat the conferences were the best way to handle cases like theirs. It was least successful in reducing thecourt workload in terms of the numbers of motions processed by judges and orders issued by judges orclerks. It was not successful in increasing the settlement rate beyond a 41-50% and in reducing the timespent at the meetings, due to presumably too little participation of the parties and not enough casemanagement. Evidence: Data from four of 13 counties involved in the program which accounted for 72-75% of allsuperior court cases filed in the 13 counties in 1991-93, using control group, pre-program group andmediation group cases as well as court record data, litigant/attorney questionnaire data, the AOC civil casedatabase and compliance questionnaire data. The evidence is generally persuasive.Other aspects: The conclusion that the MSC Program achieved its goals of greater efficiency andsatisfaction to some degree, but not as much as its proponents may have hoped. The state's earlier (1987)experiment with court arbitration was more effective, but it involved much simpler, smaller cases than didthe MSC program.

Hirano, Toshihiko, unpublished speech, given at a conference in Tubingen, Germany, April 25, 1997.Öber die Verhandlungskultur in Japan (About Negotiation Culture in Japan).

Country: Japan

Appendix D 17

The speaker addressed some of the fundamental reasons why negotiation and consensus-oriented disputeresolution outside the courts are more common in Japan than in other Western countries. The argumentsinclude the scarcity of lawyers and the traditional Japanese legal culture which has basically beenunfamiliar with the scheme of rights and duties, as it was imported from Europe a century ago.

Iwai, Nobuaki. 1991. " Alternative Dispute Resolution in Court: The Japanese Experience," Journal onDispute Resolution, vol. 6, no. 2.

Country: JapanYears: Since 1951Objectives: Settlements in the court systemDesign: Targets the parties, using persuasion to convince litigants to switch to various dispute resolutionmethods and drawing on judges. Two models are explained in the article. Under the first approach, wakai(settlement-in-court), it is the judge who decides to switch to a settlement mode and acts as a mediator. Thesecond model, chotei (conciliation-in-court), bears some resemblance to elements of mediation and ofevaluation. As an intermediate model, benron-ken-wakai (pleading-and-settlement), is described.Impacts: Most successful in the appellate courts, due to the highly persuasive power of prominent judgesand the fact-finding which had previously been done by the trial courts.Evidence: Some quantitative data from the 1980s, though mainly a qualitative description. Evidence isgenerally persuasive.Other aspects: It may be interesting to note that, as opposed to the common rule in American courtswhich prohibits the same judge from presiding over the settlement conference and the trial of a case, theJapanese judge assumes the double function of a director of the settlement procedure and of a screeningofficer.

Jardine, Elizabeth J. 1996. "Alternative Dispute Resolution in the Japanese Court System" in AustralianDispute Resolution Journal.

Country: JapanYears: Since the Act of 1951Objectives: Settlements in courtsDesign: Targets litigants using three different types of ADR (chootei or conciliation-in-court, wakia orsettlement in court, benron-ken-wakai or pleading-and-settlement) methods and the function of the judge asneutral.Impacts: Most successful in chootei if it is voluntary and is just one of several remedies available,although an element of compulsion can be involved. However, the author notes that there are seriousdoubts as to the degree of voluntariness involved with chootei as the courts are heavily congested,expensive and incur time-consuming trials.Evidence: Generally persuasive.Other aspects: Chootei is a separate procedure from litigation, whereas wakai blends litigation andoutside negotiation.

Lajeunesse, Therese. 1991. Cross Cultural Issues in the Justice System: The Case of the AboriginalPeople in Canada. Working Paper 1991-1. Manoa, HI: Program on Conflict Resolution (PCR) at theUniversity of Hawaii at Manoa.

18 Appendix D

Country: The case of Aboriginal People in CanadaYears: 1991Objectives: Strengthening of traditional approaches to dispute resolution in Aboriginal communities andbetween Aboriginals and others. Lajeunesse lays out the differences in Western and Aboriginal approachesto conflict resolution.

LeResche, Diane. Summer 1992. “Comparison of the American Mediation Process with a Korean-American Harmony Restoration Process,” in Mediation Quarterly, vol. 9, no. 4, pp. 323-339.

This paper describes the mediation process used by community-based mediation centers in the US with theformal process for handling conflicts used by Korean-Americans. The issue has not yet become importantbecause many community-based mediation centers find that their services are not widely used by membersof diverse ethnic populations. The study found extensive differences between the two with respects to all ofthe categories identified for analysis: perceptions of types of conflicts and their origins; the goals andobjectives of the processes; how they are initiated; the roles and responsibilities of the people in conflict andof the third-parties; the type and extent of third party preparation; the structure of third-party meetings withthe conflicting parties; the generation and selection of solutions; and how the processes are concluded. Theauthor argues that these findings suggest that mediation centers must expand their approaches if they are toserve all ethnic groups in their communities, and rather than providing a specific alternative–mediation–fordispute resolution, they should perhaps focus on providing “optional processes” more broadly defined.

Lowry, Kem. 1989. Mediation of Complex and Public Interest Cases: An Evaluation Report to theJudiciary. PCR Working Paper Series, Department of Urban and Regional Planning and Program onConflict Resolution, 1989-1992. Manoa, HI: University of Hawaii.

Country: Hawaii, USAYears: 1986-1989Objectives: Identify at least ten public or otherwise complex disputes; attempt to facilitate the entry ofmediators in those cases; and assist the parties in those cases as well as the court in resolving as manyissues as possible in state courts.Design: Targets stakeholders in complex cases using mediation and other ADR methods.Impacts: Most successful in reducing costs due to significantly lower number of hours charged bymediators, as compared to litigated cases.Evidence: Quantitative: the evidence is generally persuasive.

McGillis, Daniel. July 1997. Community Mediation Programs: Developments and Challenges. Washington, DC: US Department of Justice, National Institute of Justice.

Country: United StatesYears: Past twenty yearsObjectives: Improved access to justice, to balance the reduced role of traditional informal disputeresolvers and to change perceptions regarding the appropriateness of the court process in communitymediation programs.

Appendix D 19

Design: Targets all parts of the community using training, mediation and group dialogue methods anddrawing on NGOs and volunteers.Impacts: Most successful in founding neighborhood justice centers and in handling public and intergroupdisputes, thanks to their knowledge of the community. It was least successful in achieving financialstability, due to the ebb and flow of federal and foundation funding to support innovations and thetransition to local funding support.Evidence: Statistics on the overall growth of community mediation (such as exhibits showing the numberof programs begun per year between 1969 and 1995, or displaying the distribution of numbers of volunteermediators or annual budgets). The report also contains abstracts of the development of particularneighborhood justice centers. Evidence is generally very persuasive.Other aspects: A description of the increased interest in the role of community members in resolvingconflicts; a general overview of developments; an account of the diversification of dispute resolutionservices; a presentation of the sources for program design, support, and funding; a summary of studies onthe impact of programs on the quality of justice, as well as an outline of major issues confronting thecommunity mediation field.

Moriya, Akira. 1997. Out of Court ADR in Japan (unpublished).

Country: JapanYears: Recent yearsObjectives: The settlement of disputes in which the government is interested.Design: Targets illegal labor practices and various labor disputes between employers and employees;environmental victims; consumers using adjudication and non-binding methods; central and local labor-relations commissions; and reconciliatory commissions for environmental disputes as well as consumercenters.Impacts: Most successful in procedures such as reconciliation or mediation, thanks to the acceptance bythe public. It was least successful in arbitration, due to the formality of the process.Evidence: A general description. Evidence is generally persuasive. Other aspects: This document also reviews experience with ADR in the private sector.Objectives: improved access to legal knowledge in automobile accidents.Design: Targets victims of such accidents by promoting negotiation methods and legal advice centers. These centers are operating mainly as a reconciliatory agent between the victims of automobile accidentsand the insurance companies. They also give counsel to the injured parties and recommend a compensationamount when requested.Impacts: Most successful in reconciling the parties, thanks to the informality of the process.Evidence: descriptive; generally persuasive. The author emphasizes that, as compared to the courtprocedure, each ADR procedure is usually assigned more narrowly defined purposes, such as the protectionof consumers' interests and the recovery of compensation for victims of car accidents.

Mowatt, J.G. March 1992. "Alternative Dispute Resolution: Some Points to Ponder," The Comparativeand International Law Journal of Southern Africa, vol. 25, no. 1, pp. 44-58.

Country: Texas, USAYears: 1987-1992 Objectives: Reduce cost and delays; increase satisfaction associated with dispute resolution; involve moreof the community in dispute settlement in all kinds of cases, both civil and criminal.

20 Appendix D

Design: Targets the general population using mediation, mini-trial, moderated settlement conference,summary jury trial, and arbitration (settlements are enforceable) methods and "dispute-resolution serviceorganizations" (or "providers"), which may be private profit or non-profit organizations, county disputeresolution centers, or other informal, impartial third parties (some training qualifications required, but theyare relatively minimal). The program was administered by State of Texas, and supported/funded byState of Texas. Impacts: It was least successful in establishing ADR-court linkages. Evidence: Is largely theoretical, based on the differences in nature and principles of ADR and courtlitigation, and generally has some good points and interesting questions and issues.

Plapinger, Elizabeth and Stienstra, Donna. 1996. ADR and Settlement in the Federal District Courts:A Sourcebook for Judges and Lawyers. Washington, DC:Federal Judicial Center and the CPR Institutefor Dispute Resolution.

Country: Each of the ninety-four federal district courts of the United StatesYears: 1994 - 1996Objectives: Cost and delay reductions in the nation's 94 federal courts.Design: Targets the behavior of judges and parties using a wide variety of ADR methods and judicial andnon-judicial neutrals. Evidence: Detailed program descriptions of each of the ninety-four federal districts as well as comparativetables and overviews.Other aspects: Most of the 94 federal districts have authorized or established at least one court-wideADR program. Although this very elaborate study is probably the most encompassing sourcebook on ADRin the federal courts, it does not contain any indicators of success or failure, since it is almost impossible atthis time to draw any conclusions about the effectiveness of ADR from these ADR caseload figures.

Price, Richard T. and Dunnigan, Cynthia. 1995. Toward an Understanding of AboriginalPeacemaking. Victoria, British Columbia: University of Victoria Institute for Dispute Resolution.

Countries: Native American communities in Canada and the United StatesYears: Past ten years, but starts with a detailed account of historical patterns of peaceful inter-tribal andinter-cultural relations in the Canadian and Great Lakes Region.Objectives: Peaceful resolutions in inter-tribal and intra-tribal affairs.Design: Targets Native Americans using peacemaking methods and respected community individuals.Impacts: May be more successful in being more culturally appropriate, due to the use of respected eldersas neutrals and the reference to traditional forms of dispute resolution, possible under the informal disputeresolution procedures.Evidence: Both quantitative and qualitative data. Evidence is generally persuasive.

Rosch, Joel. 1987. " Institutionalizing Mediation: The Evolution of the Civil Liberties Bureau in Japan,” Law and Society Review, vol. 21, no. 2, pp. 243-266.

Countries: JapanYears: The post-WWII period

Appendix D 21

Objectives: Investigation of human rights violations and promotion of the individual "rightsconsciousness" (set up under the guidance of Americans and Japanese reformers after WWII) to counterthe feared reemergence of totalitarianism in all types of cases (though not to interfere with cases beinglitigated in the courts or handled by other agencies).

Design: Targeted average Japanese citizens using mediation, and to a much lesser extent, the role ofombudsman, in a civil liberties bureau (CLB) and appointed respected citizens and a small professionalstaff.Impacts: Most successful in providing a forum for resolution of disputes relating to social (or group)rights; offering a variety of forums for dispute resolution; and handling large numbers of cases. Successwas due to the costs and difficulties of resolving disputes in the formal legal system; the high status of thecommissioners and their strong national network; the strong normative sense of proper behavior; thepersistence of notions of group and social rights among Japanese; and a tradition of reliance on conciliationto resolve disputes (although in practice the nature of the conciliation process has changed substantially,from enforced to voluntary conciliation);It was least successful in promoting the concept of individual human rights, and resolving the problems ofgroups that have traditionally been discriminated against, due to the still weak conception of civil libertiesand individual rights among Japanese; the reliance on traditional normative systems as a basis forresolution; and the tendency to individualize cases, rather than to try and build a consistent, precedent-stetting foundation for changing or advancing conceptions of rights.Evidence: The large number of cases being successfully handled by the CLB. Evidence is generallypersuasive.Other aspects: First, the authors argue that the low levels of court-based litigation in Japan may not bedue to the supposed non-litigious culture in Japan, but to the presence of alternative forums such as theCLB for handling complaints. It is not the number of disputes that is different, but the nature of theagencies for handling them. Second, they also comment extensively on how cultural attitudes towarddispute resolution both shape and are shaped by the available institutions— that is, traditional institutionsand attitudes have proved both persistent and adaptable, so the CLB could build on them while at thesame time changing/improving them. Third, the CLB has no formal/legal enforcement powers, butsuccessfully relies on informal/social means to enforce its decisions. Fourth, the authors also discuss theconcern that the CLB individualizes cases rather than working on the basis of consistency and settingbroader precedents, and that this may inhibit the growth of law and the development of rights consciousnessin the country, delegitimize conflict, and impede democracy.

Stienstra, Donna; Johnson, Molly; Lombard, Patricia . January 1997. Report to the JudicialConference Committee on Court Administration and Case Management: A Study of the FiveDemonstration Programs Established Under the Civil Justice Reform Act of 1990. Washington, D.C.:Federal Judicial Center.

Country: Five U.S. demonstration programs, established under the Civil Justice Reform Act of 1990Years: 1993-1996.Objectives: Experiment in two programs with systems of differentiated case management that providespecifically for the assignment of cases to appropriate processing tracks that operate under distinct and

22 Appendix D

explicit rules, procedures, and time-frames for the completion of discovery and for trial. The other threedistricts were instructed to experiment with various methods of reducing cost and delay in civil litigation,including alternative dispute resolution.

Weiss, Stephen E.; Goldstein, Susan B. September 1987. " Culture's Consequences in DisputeResolution," Dispute Resolution. Washington, DC: National Institute for Dispute Resolution (NIDR).

Countries: Northern Ireland and the Texas Gulf CoastYears: The last two decadesOther aspects: The review is brief and general. It basically stresses the significance of differentperceptions. The article discusses three types of descriptive models of the negotiation process: universalmodels, comparisons of cultural models, and multicultural models. Based on these models, questions as tothe integration into community mediation practice are raised.

III. Other Selected Documents

A. ADR in Developing Countries

Aldea Moscoso, Rodolfo Alejandro. 1989. De la Autocomposición: Una Contribución al Estudio de laSolución de los Conflictos Jurídicos. Santiago, Chile: Editorial Juridica de Chile.

Bingham, Gail. 1995. “Resolving Environmental Disputes: A Decade of Experience” Washington, DC:Conservation Fund.

Cappelletti, Mauro. May 1993. "Alternative Dispute Resolution Processes within the Framework of theWorld-Wide Access to Justice Movement," The Modern Law Review, vol. 56.

Chadosh, Hiram; Mayo, Stephen A.; Naguib, Fathi; and El Sadek, Ali . Summer 1996. "Egyptian CivilJustice Process Modernization: A Functional and Systematic Approach," 17 Michigan Journal ofInternational Law, vol. 17, pp. 865-915.

Collins, William. 1997. Dynamics of Dispute Resolution and Administration of Justice for CambodianVillagers. Preliminary Assessment for USAID. Project no. 442-0111. Washington, DC: USAID.

McHugh, Heather. November 1996. Alternative Dispute Resolution: The Democratization of Law?Washington, DC: Center for Development of Information and Evaluation, USAID.

Natural Resources Management Program (NRMP), Department of Environment and NaturalResources, Rep. of the Philippines. 1993. A Review of the Applicability of Current DENR TenurialInstruments to Issues Related to Ancestral Domains. Report 93-05. Manila: NRMP/DENR/USAID.

Rosenberg, S. and H. Folberg. 1994. "ADR: An Empirical Analysis," Stanford Law Review, vol. 46, pp. 1497-1526.

Appendix D 23

USAID. 1992. "Project Paper: Nepal Democracy Project." Project no. 3670163, Washington, DC:USAID.

USAID. 1993. "Trade Practices and Productivity Improvement Project," USAID Project DesignDocument. Doc. PD-ABH-209. Washington, DC: USAID.

B. ADR in Developed Countries

American Bar Association Section of Dispute Resolution. Summer 1997. “Focus on the Rand Report," Dispute Resolution Magazine, vol. 3, no. 4.

CPR Institute for Dispute Resolution. 1997. "Concerns and Recommendations,” Alternatives to theHigh Cost of Litigation, (hereinafter "Alternatives") vol. 15, pp. 72-73.

Davis, William and Crohn, Madeleine. May 1996. “Lessons Learned: Experiences with AlternativeDispute Resolution.” Prepared for Judicial Roundtable II. Williamsburg, VA: National Center for StateCourts.

Hensler, Deborah R. 1997. " Rand’s Rebuttal: CJRA Study Results Reflect Court ADR Usage–NotPerceptions," Alternatives, vol 15, p. 79.

Jaffe, Sanford M. and Stamato, Linda. 1997. "No Short Cuts to Justice," Alternatives, vol. 15, p. 67.

Lind, E. Allan. 1990. Arbitrating High-Stakes Cases, An Evaluation of Court-Annexed Arbitration ina United States District Court, RAND Institute for Civil Justice Report, R-3809-ICJ.

Kakalik, James S.; Dunworth, Terence; Hill, Laural A; McCaffrey, Daniel; Oshiro, Marian; Pace,Nicholas M. ; Vaiana, Mary E. 1996. Just, Speedy, and Inexpensive? An Evaluation of Judicial CaseManagement Under the Civil Justice Reform Act. Santa Monica, CA: RAND.

Meierhoefer, Barbara S. 1990. Court-Annexed Arbitration in Ten District Courts Washington, DC:Federal Judicial Center.

Press, Sharon and Filner, Judy. March/April 1996. "Getting to Excellence in Court System ADR," NIDR News. Washington, DC: National Institute for Dispute Resolution.

Rauma, David and Krafka, Carol. 1994. Voluntary Arbitration in Eight Federal District Courts: AnEvaluation. Washington, DC: Federal Judicial Center.

Rolph, Elizabeth and Moller, Erik. 1995. Evaluating Agency Alternative Dispute ResolutionPrograms: A User's Guide to Data Collection and Use. Santa Monica, CA: RAND.

Sander, Frank. "Varieties of Dispute Processing," 70 F.R.D. 111, 131.

Stempel, Jeffrey W. 1996. "Reflections on Judicial ADR and the Multi-Door Courthouse at Twenty:Fait Accompli, Failed Overture, or Fledgling Adulthood?" Ohio State Journal on Dispute Resolution, vol.

24 Appendix D

11, p. 297.

C. Taxonomy of ADR Models

Center for Public Resources/CPR Legal Program. 1993. Judge's Deskbook on Court ADR.. NewYork: Federal Judicial Center.

CPR Institute for Dispute Resolution, "The ABCs of ADR: A Dispute Resolution Glossary," Alternatives, vol. 13, no. 11, pp. 147-151.

Christopher W. Moore. 1989. The Mediation Process: Practical Strategies for Resolving Conflict. San Francisco: Jossey-Bass.

J.Michael Keating, Jr. and Margaret L. Shaw. July 1990. "'Compared to What?'" Defining Terms inCourt-Related ADR Programs," Negotiation Journal, pp. 217-220.

Stephen B. Goldberg, Frank E.A. Sander, Nancy H. Rogers . 1992. Dispute Resolution: Negotiation,Mediation and Other Processes. New York: Little Brown and Co.

Elizabeth Plapinger and Donna Stienstra. 1996. ADR and Settlements in the Federal District Courts:A Sourcebook for Judges and Lawyers. Washington, DC: Federal Judicial Center and CPR Institute forDispute Resolution.

Frank E.A. Sander and Stephen B. Goldberg. January 1994. "Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure," Negotiation Journal, pp. 49-68.

1

Appendix EDispute Resolution Institutional Problems, DR/ADR Solutions and Conditions for Success

This matrix highlights central issues relevant to dispute resolution and potential solutions. While not intended to be a“cookbook” for addressing problems in dispute resolution, the matrix identifies major factors for consideration.

Dispute resolution(DR) institutionsand problems

Problemsfor DR institutionusers (AIDobjectives)

Solutions directedat reforming DRinstitution

Conditions for success of DRinstitution reforms

Solutions directedat creating ADRinstitutions

Conditions for success of ADRinstitutions

Civil CourtSystem

Low supply ofjudges/staff

Access (A)Time (T)Cost (C)Satisfaction (S)

1. Hire additionaljudges/staff (Uruguay)2. Provideadequate salaries/benefits/ workingconditions to retainjudges/staff

1. Adequate political support forexpanding court DR capacity(ideally through cabinet-levelleadership and activeparticipation of judges, staff, userreps. and independent experts incapacity planning)2. Adequate supply of trained/trainable judges/staff exists3. Adequate and sustainablefunding available

Provide non-courtneutrals throughADR programs(Argentina,Uruguay; compareMcHugh (1996:13) and RAND:ADR impact oncourt delays notestablished).

1. Adequate political supportexists for institutionalizing non-court neutrals (ideally throughcabinet-level leadership andactive participation of judicialsystem DR providers, users andindependent experts in ADRdevelopment) (Argentina)OR2. Court system opposition canbe reduced by using judges/courtstaff as ADR staff (Argentina)3. Adequate pool of trained/trainable neutrals and staff exists4. Adequate, sustainable fundingfor neutrals and staff is available







Low quality ofjudges/staff (competenceand/or integrity)

S, T, C 1. Retrain existingjudges/staff2. Introduceperformancerequirements,incentives andmonitoringsystems (Uruguay,Colombia,Honduras,Philippines)3. Increaseselectivity in newhires

1. Adequate political support forretraining/performancerequirements (ideally throughcabinet-level leadership andactive participation ofjudges/staff/users/experts indesign of training programs andperformance standards)OR2. Staff opposition can bereduced by offering earlyretirement/transfers/ outplacement/grandfathering3. Adequate pool oftrainers/independent assessors isavailable4. If integrity is an issue,investigators can be protectedand findings can be publicized(Philippines law student CourtWatch)

Provide well-trained non-courtneutrals

1-4 to left and5. Adequate pool of skilledtrainers is available totrain/periodically assess ADRneutrals (Sri Lanka mediationboards)

3







High fees C,A 1. Reduce courtoperating costs(e.g. bysimplifyingprocedures,retrainingjudges/staff,eliminatingredundantjudges/staff)and/or2. Offer courtservices at reducedfees

1. Adequate political support forcost-cutting and fee reduction(cabinet, judge, staff, user andexpert participation)2. Court operating costs can bereduced whilemaintaining/improving DRservice deliveryand/or3. Adequate and sustainablefunding available to subsidizeusers (possibly through cross-subsidies)

Offer non-courtDR services atlower cost (targetlow-cost services tolower-incomeusers)

1. ADR program can be designedto run at lower cost (e.g. simplerules, "piggy-back" on existingbuildings/programs/staff)(Philippines barangay justice)and/or2. Adequate and sustainablefunding to subsidize user costs isavailable (Philippines laborarbitration) (sliding scale can beused for higher income users tocross-subsidize lower-incomeusers)3. If low-cost services arerestricted to lower-income users,there are simple and transparentcriteria and procedures fordeciding user eligibility


Problemsfor DR institutionusers (AID objectives)





Complexprocedures

T,C,A,S 1. Simplify/expedite courtprocedures(Uruguay andArgentina oralprocedures,Philippinescontinuous trials)

1. Adequate political support forsimplification (cabinet, judge,staff/ advocates, users, experts)in procedural review2. Adequatejudicial/administrative expertiseto simplify procedures whilemaintaining integrity of rules ofaction, standing, fact-finding,decision and appeal

Offer simple DRprocedures in non-court fora, andeducate users onthese procedures(neighborhoodADR centers withindependent/volunteer staff inArgentina, Bolivia,Colombia, CostaRica, Sri Lanka,Taiwan; localgovernment –staffed ADRprograms inChina, Philippines,Taiwan)

1. ADR program designers canidentify potential users2. Program designers/staff canwork with user reps. to assess DRneeds and capacities and provideappropriate DR procedures andsupporting information3. Disputes are screened so thatonly those that can be resolvedusing simple procedures go toADR

5







No specializedneutrals fortechnicallycomplex disputes such as specializedcommercial(intellectualproperty)administrative(taxation,product/occupational safety),constitutional cases

S,T,C 1. Recruit currentjudges/staff fortechnical trainingand/or2. Establish newjudicial venue(s)for specific types ofcases

1. Clear rationale for public rolein providing specialized DR (e.g.for administrative cases, need forappeal of administrative agencydecisions to independentauthority)2. Adequate userdemand/political support tojustify specialized fora3. Adequate pool of motivatedand trainable judges/staffavailable4. Adequate and sustainablefunding available (possiblythrough surcharges on users ofspecialized fora)

Provide non-courtfora for thesedisputes, andprovide neutralswith appropriatetechnical expertise(Philippines andDom. Rep. laborarbitration;Philippines landtitle; Thailandcommercialdisputes; Uruguaycommercialdisputes)

1. Adequate political support forinstitutionalizing non-court forafor these disputes (Blair et al.(1994) cite lack of businesssupport in Uruguay)2. Adequate pool of neutrals withprocess expertise can be trainedto deal with technical issuesand/or3. Adequate pool of technicalexperts can be trained in ADRprocess skills4. When technical experts areused as neutrals, ADR neutralselection procedures can bedesigned to minimize potentialconflicts of interest (e.g. neutralsmust disclose; parties must agreeon neutral)







Location bias (e.g.lg. cities or centrallocations withincities only)

A,C,T (forlocation-disadvantagedgroups)

Site court facilities(for filing andhearings) in under-served areas

1. Adequate political support(including current and potentialusers from under-served areas)2. Adequate and sustainablefunding for siting and operatingnew facilities3. Adequate pool of judges/staff(with preference for residents ofunder-served areas)

Provide non-courtDRcenters/neutrals inareas wheredisadvantagedgroups areconcentrated (USneighborhoodADR centers;Colombia casas dejusticia;Philippinesbarangay justice;Sri Lankamediation boards;Argentinaneighborhoodjustice centers)

1. Adequate political support fortargeting ADR services todisadvantaged group(s)2. ADR program designers canidentify disadvantaged groups,assess needs, select locations,procedures and neutrals to meetgroup needs3. Adequate pool of qualifiedneutrals is willing to work inunder-served locations

7







Culture bias (e.g.court uses only onelanguage in multi-lingual society;courts refuse torecognizetraditional/informal DRsystems of somecultural groups)

A,C,T,S (fordisadvantagedgroups)

1. Revise courtprocedures andmaterials, retrainstaff and recruitnew staff fromunder-servedcultural groups(Malaysia DNU)2. Give legalrecognition toinformal/traditional DRpractices (e.g.require courts andlaw enforcementagencies torecognize andenforce agreementsreached usingtraditional/informal DRprocedures)

1 and 2 to left and3. Redesign of court proceduresand material, staff selection andtraining actively involvesrepresentatives of under-servedcultural groups4. Laws/ rules can be written tosupport traditional/ informal DRpractices without "judicializing"them

1. Provide non-court fora,procedures andneutrals that meetneeds of under-served culturalgroups (Ecuador)2. Give legalrecognition tothese new fora andprocedures(Philippinesindigenouspeople's claims)

1 and 2 to left and3. ADR design phase activelyinvolves representatives ofunder-served cultural groups inneeds assessment, proceduraldesign, neutral selection andtraining4. Laws/ rules can be written tosupport ADR fora andprocedures without"judicializing" them (India lokadalats vs. Sri Lanka mediationboards)5. ADR users maintain right ofappeal to formal system (n.b.McHugh (1996: 24) points outsharp debate on this issue)







Social, economicand/or culturalimbalance inpower of parties inclass of disputes(e.g. women indomestic abusecases, low-incomedebtors incollection cases,low-incometenants/squatters ineviction cases,indigenous peoplein land rightscases; privateparties in disputeswith publicregulatoryagencies)

S,A (fordisadvantagedparties)

1. Change lawsand procedures toincrease legalrights/ protectionsfor disadvantagedparties2. Providecounseling/ socialservices/ legaladvocates todisadvantagedparties

1. Adequate political support(including mobilization andinvolvement ofrepresentatives/advocates fordisadvantaged groups)2. Changes in laws/ proceduresare supported by legal education/and broader social programs toreduce underlying socio-economic and cultural disparities3. Adequate and sustainablefunding for programs targeted atdisadvantaged groups

Create non-courtfora andprocedures thatrequire voluntarysettlement andminimize ability ofmore powerfulparties to coercesettlement (NepalWomen's legalservices)

1. Adequate political support(including mobilization andinvolvement of disadvantagedgroups' representatives/advocates)2. Safeguards against coercionare adequate (very difficult toassess--questions raised byWhitson (1992) about women inIndia lok adalats, and by Hansenet al. (1994) about debtors in SriLanka mediation boards)3. All parties retain option toseek court judgments if unable toreach/ keep voluntary agreement(n.b. McHugh (1996: 24) pointsout sharp debate on this issue) 4. Adequate counseling andsupport for disadvantaged parties

9







Civil advocates

Low supply and/orhigh cost

A,C,T 1. Increase supplyof advocates byincreasing access tolegal education(e.g. establish newlaw schools,subsidize tuition(possible slidingscale/cross-subsidy), reducetime required tograduate), and/orreducing licensingrequirements2. Reduce advocatecosts by increasingsupply, simplifyingprocedures (seeabove), requiringpro bono work, regulating fees

1. Adequate political supportOR2. Phased introduction (e.g. firstsimplify procedures, then ifnecessary increase number of lawgraduates, then if necessaryreduce licensing requirements,and only then regulate fees if stillnecessary)

Reduce need foradvocates throughdesign of ADRprocedures; and/orprovide individualcounseling in ADRforum

1. Adequate political supportexists to reduce demand foradvocatesOR2. Advocates' opposition can bereduced by using them as ADRstaff3. ADR procedures can bedesigned to substantially reduceneed for advocates (e.g. casescreening, simple procedures,counseling for parties by ADRstaff, ADR users do not waiveright to seek legal advice or go tocourt)4. Adequate pool of ADR staff available to provide individualcounseling5. ADR procedures designed tomaintain parties' confidentiality(e.g. staff who counsel a party donot act as neutrals in that case)

Low quality S,T,C Improve legaltraining, introduceperformancerequirements andmonitoring systems(Philippinesalternative lawschools)

1. Adequate political support2. Changes in legal training/performance requirement linkedto improvement in legalprocedures (simplification,codification etc.)

Provide well-trained ADRcounseling staff

1-3 aboveand adequate pool of skilledtrainers to train/periodicallyassess ADR staff







Location bias A,C,T Create incentives and requirementsfor advocates topractice in under-served areas (e.g.in exchange fortuition subsidies)

As above under civil courtsystem location bias

Site ADRcenters/staff inunder-served areas

As above under civil courtsystem location bias

Culture bias A,C,T,S Recruit lawstudents fromculturally under-served groups, giveincentives foradvocates to serveculturally under-served groups,train advocates tobe aware of andresponsive toculturally-specificDR norms andbehaviors

As above under civil courtsystem culture bias

Recruit ADR stafffrom the parties'culture and/or trainthem to be awareof and responsiveto culturally-specific DR normsand behaviors

As above under civil courtsystem culture bias

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