Mediation: The End of Lawyers?
Date: June 15th, 2010 | Filed under: Mediation & Company Law Articles | Tags: ireland, lawyer, mediationUsing mediation and alternative dispute resolution to improve access to justice in Africa
Introduction
In recent years interest in mediation and alternative dispute resolution (ADR) has mushroomed worldwide. The proliferation and success of mediation and ADR programmes in many developed nations has caused those looking at rule of law issues in a number of less developed countries in Africa to consider the inclusion of ADR practices as a means of unclogging backlogged, inefficient and weak court-based systems. Mediation and ADR can be used alone or in tandem with the more formal legal architecture to find solutions to legal disputes in a flexible, cost-effective and swift manner.
In this paper I will explore the options involved in establishing mediation models and the particular relevance of utilising alternative dispute resolution options in the setting of less developed states in Africa. I will give several case study examples of mediation and non-lawyer dispute resolution in African countries where the number of lawyers, judges, court officials and courts themselves, are often inadequate to deal with their caseload volume. This paper will primarily focus on mediation within the many forms of ADR.
Rule of law
“Rule of law refers to an ideal of fairness, justice, and equality before the law”.[1]
Rule of law systems traditionally include recognised state laws, police and military forces, courts, ministry of justice (or government arm), and a prison system. In less developed or post-conflict states, law and security may not be strongly developed or may have broken down. Such environments are usually characterised by an underdeveloped and ill-equipped police and military forces, an under-resourced and ineffective court system, lack of capacity in the government arm and inadequate correctional facilities.
In the absence of rule of law, development slows as economic growth becomes difficult to sustain.[2] Property rights cannot be enforced and there is little incentive for foreign investment, as companies are generally reluctant to do business in insecure environments. Human security also suffers where violent crime is not prevented, prosecuted or corrected. Establishing and maintaining rule of law is vital in promoting social and economic development.
Reform, however, takes place not only through top-down initiatives, but also through bottom-up approaches. While institutional reform slowly works its way forward, alternative methods for resolving conflict are often used. These include: local norms and codes, often governed by tribal elders or community leaders; programmes run by civil society groups and NGO’s; the role of the media; and development of mediation services.[3] These play a key role where formal legal systems are weak and ineffective in providing solutions to disputes.
Mediation and ADR and the role it can play in less developed countries
Alternative Dispute Resolution (ADR) involves finding solutions to disputes outside of the court system and free from the procedural constraints of the judicial model. ADR has developed as a cost-effective alternative to the traditional legal route and can often provide more flexible solutions than the limited legal remedies laid down by the courts.
Mediation is a key form of ADR. “Mediation is a process in which an impartial and independent third party facilitates communication and negotiation and promotes voluntary decision making by the parties to a dispute to assist them to reach a mutually acceptable solution.”[4] It provides an opportunity for parties to agree upon a solution which is mutually satisfactory and has the advantage of avoiding the aggression and emotive characteristics often associated with the adversarial trial system.
The use of mediation and ADR in developing countries provides a positive path for finding solutions to disputes. It is particularly useful where the rule of law is underdeveloped or fractured. The demand for access to justice in less developed countries generally far exceeds the capacity of the court services.[5] Other factors may also play a role in curbing regional motivation for improvement. For example, where remunerative rewards are potentially higher for court and judicial officials if they engage in corrupt practice than through salaries paid, there is little incentive to resolve legal disputes quickly, fairly and effectively.
Mediation and ADR in this context is particularly important as it provides alternatives in seeking access to justice. Where access to the courts is inadequate, community and businesses will look to find other channels to resolve legal clashes. As a result, private and public ADR options have sprung up in a large number of less developed countries in environments where justice systems are inaccessible or inadequate.[6]
Mediation can take place through public or private means. Private mediation occurs outside of the state court system and, generally, is not subject to state regulation. Services will be offered by a mediator who should remain neutral. These services can be offered on a profit or not-for-profit basis.
Pubic mediation, on the other hand, is generally ‘court-annexed’ or a publicly-offered service. In the case of court-annexed mediation a judge will decide or order that mediation services should be applied in order to seek resolution of a dispute before the courts. Such services are approved or operated by the judiciary or ministry of justice.
In ADR circles the merits of public versus private mediation are a source of continued debate. State-sponsored mediation has been adopted in many developed and less developed nations and has the benefit of encouraging settlement of disputes at an early stage. Furthermore, it can produce additional gains to the state and parties involved, as it often results in a reduction of legal costs and frees up the resources of the judicial system. Different jurisdictions have opted for different models. For example, in Ontario, Canada[7], and Argentina[8], mandatory mediation programmes have been adopted to govern certain areas of law. On the other hand, in Ireland, voluntary mediation may be ordered by the Commercial Court[9], and a similar form has been adopted in Uruguay[10]. Best practice models and influences are being drawn from such examples in the design of ADR systems in other less developed countries.
Regardless of whether mediation is mandatory or voluntary, one argument against court-annexed mediation involves the non-binding nature of resulting agreements. As parties are not precluded from returning to the courts after an agreement is reached, there is a possibility that mediation may simply add another layer of cost and procedure to a trial. However, the cost of litigation provides a strong incentive for parties to mediate. In this manner, mediation and ADR have the potential to reduce the caseload burden the courts, leaving them to decide only the most intransigent disputes.
Private mediation in less developed countries, can offer one distinct advantage. It allows parties to sidestep the state legal system in cases where corruption may be endemic. Private mediation allows the parties to mutually agree on a trusted mediator, where faith in the judicial process is low.[11] By contrast, if corruption is present, a court-annexed, public mediation arrangement may pave the way for greater opportunities for abuse by the judiciary, governmental officials and court staff.
Naturally, there are certain risks associated with private mediation. In an unregulated market there is no guarantee of quality of service or qualification of the mediator for the task. There is also a risk that a private mediator may take on a case where there is a deeply uneven power balance between the parties. This is of particular concern in developing countries where parties may not fully understand their rights, the voluntary nature of the process or legal alternatives available to them.
In many developed and developing countries industry associations have emerged, providing publicity for members.[12] Some also provide some form of self-regulation and training.[13]
Another option when looking at assuring quality of mediators is to opt for the introduction of a national mediator accreditation or training system. The Irish Law Reform Commission Consultation Paper on ADR notes that this would have the effect of offering:
“the improvement of mediator knowledge, skills and ethical standards;
the promotion of standards and quality in mediation practice;
the protection of the needs of consumers of mediation services and the provision of accountability where they are not met;
the conferment of external recognition of mediators for their skills and expertise; and
the development of consistency and mutual recognition of mediator training, assessment and accreditation.”[14]
This model has been adopted, in varying degree, by several countries. In the Netherlands, for example, mediators who wish to work in public or court-annexed mediation must be registered or certified with the Netherlands Mediators Institute (NMI), which assesses mediators for quality.[15] Australia is also in the process of adopting a national accreditation model.[16]
Introducing accreditation and training schemes from the outset in less developed countries in Africa, where formal mediation systems are still in their initial stages, could be an excellent way of integrating mediation and alternative dispute resolution models into the respective justice systems and ensuring quality of practitioners.
ADR in Africa
“It has all too often been observed that there are not enough lawyers in African countries to provide the legal aid services required by the hundreds of thousands of persons who are affected by criminal justice systems.”[17]
The above excerpt is from the Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in Africa. The declaration was adopted after a two-day conference attended by a consortium of legal professionals, state representatives from 22 African countries, international and national NGO’s and African Union representatives. The conference looked at the role of both lawyers and non-lawyers in provision of legal aid in Africa and concluded that, in order deal with the problem of overloaded criminal justice systems, that diversification of services and service providers would have to take place.
Although the focus of the conference was on legal aid in the criminal justice area, the Declaration makes several important recommendations in relation possibilities in relation to ADR and mediation in Africa more generally. It encourages African governments to look at the issues within their judicial systems and explore options for encouraging the judiciary to promote the use of alternative dispute resolution as a first step in all legal disputes. It suggests that, in situations of severe case backlog in the courts, reviews should be conducted allowing for the referral of lower level criminal matters and other appropriate cases for mediation.
The nature and origins of mediation make it particularly relevant for African countries. The historical roots and development of mediation can be traced back to both classical and traditional societies.[18] Modern ADR models mirror many of the traits of traditional African societal dispute resolution mechanisms. Since many countries have maintained strong links to these long-established methods and continue to rely heavily on customary law, ADR is a natural and organic component of many African justice systems. As a result many African governments, NGO’s and civil society groups are seeking to capitalise upon this and broaden the application of these models in conjunction with the development of formal judicial capacity.
Dr. John Brand, a trainer in conflict dynamics from South Africa believes that the shift toward ADR in Africa is simply a return to methods used prior to colonial interference. He has commented that “colonialism imposed European dispute resolution on Africa, but while Africa suffers, Europe awoke and adopted African methodology.”[19]
The Lilongwe Declaration also references the importance of traditional justice methods in reducing the strain on under-resourced judicial systems. It suggests that a referral procedure could be established between state-run courts and local, village-level hearings. This would allow traditional methods of mediation, reconciliation etc. to continue to operate, while providing an option to appeal decisions through the court system. It also suggests that the formation of a ‘Chiefs’ (or community leaders) Council, and the recording of village-level decisions, could enhance consistency and reliability of traditional justice mechanisms.[20]
The effects of lack of access to education and severe ‘brain drain’ in Africa has meant that, in many countries, there are simply not enough qualified lawyers available to provide adequate representation and access to justice for the population.[21] Many countries have been forced to face the question of what would be done if this was ‘the end of lawyers’ and consider other non lawyer-reliant options to increase access and provision of justice across large populations. This has resulted in a strong focus on using paralegals to play a key role in providing advice, education on basic rights, and assistance to lawyers.[22] It has also caused many countries to look at greater exploration of alternative dispute resolution options, as demonstrated by the below case studies:
Lagos Multi Door Courthouse – Nigeria
The Multi-Door Courthouse system provides for court-annexed alternative methods for the settlement of disputes to be explored as part of the trial process. It arises from the realisation that litigation may not be the best method of resolving many legal disputes. In addition to traditional adjudication it offers parties a range of alternatives, including mediation, arbitration, early neutral evaluation etc.
The Lagos Multi Door Courthouse (LMDC) began its work in June 2002 at the High Court of Lagos State. It was the first court-connected ADR model to be adopted in Africa. All cases submitted to the LMDC are initially screened by trained dispute resolution specialists who decide the appropriate ‘door’ to follow in resolving each dispute. The LMDC then refers cases chosen for ADR to in-house mediators and arbitrators or to an external panel of neutrals maintained by the LMDC. Although the court has suffered from issues of funding, scepticism and lack of awareness in initial years, it has had some success in relation to resolution of land matters, commercial and probate matters. Mediation has also emerged at the preferred method of ADR.
In 2007 the LDMC Law was passed providing the court with official state recognition and funding. It is yet to be seen whether this model will prove effective in the long-term.[23]
Conciliation Tribunals – Benin
In Benin, ADR is institutionalised in the legal system. Throughout the country, specialised tribunaux de conciliation hear cases on a broad range of civil law matters. Results are then transmitted to the court of first instance where either a successful conciliation is confirmed or jurisdiction is assumed by the higher court. Similar tribunals also operate, in varying modes, in other francophone African countries, such as Senegal and Central African Republic.[24]
South Kivu – Democratic Republic of Congo
As a result of civil war and fragility of the central governmental institutions, the formal judicial architecture in Democratic Republic of Congo (DRC) is extremely limited and near collapse. Few courts continue to function properly, as salaries to judges and court officials remain unpaid, and lawyers are scarce. Access to formal justice, particularly in rural areas, is near non-existent.
In the South Kivu province the situation is chronic with only two courts, based in the urban centres of the region, available for a population of over one million people. Traditionally the people have turned to chief and community elders for dispute resolution, however, conflict has led to displacement of communities and corruption of elders. To cope with the judicial vacuum a non-governmental organisation, Héritiers de la Justice aided the set up of Mediation and Defence Committees, Sub-Committees and local cells, throughout the region. Using local leaders, they have provided training in mediation skills, human rights and basic law courses. Services are provided on a non-profit basis and have shown signs of quickly and effectively resolving disputes.[25]
Paralegal Advisory Services Institute and Pilot Village Mediation Programme– Malawi
Malawi, like many African countries suffers from a shortage of trained legal professionals. The Paralegal Advisory Service Institute (PASI) was set up in an attempt to provide basic legal representation provided by trained paralegals. Their aim is to compliment and aid the work of the lawyers and other criminal justice system actors in Malawi.[26]
Malawi has a large, predominantly rural and agriculturally-dependent population, which presents obvious problems for access to the formal justice system. In this context the Danish Institute of Human Rights is currently conducting a pilot village mediation programme which aims to “empower local communities to resolve criminal and non-criminal issues at village level and result in a less expensive, more culturally acceptable system. This will also lead to more approachable and quicker access to justice as well as decrease the case load of formal justice institutions.”[27]
The project, which is being conducted in partnership with the national Paralegal Advisory Services Institute and funded by Irish Aid, is being piloted in the Salima, Lilongwe and Mchinji districts, with the hope that it will be expanded to other areas of Malawi in the future. The programme offers training in mediation, alongside the establishment of monitoring structures and development of referral mechanisms to formal justice system.[28]
Conclusion
For better or for worse, we are unlikely to see the end of lawyers in Africa or elsewhere. What we may see is a substantial reduction of time and resources being spent in adversarial trial situations. This may result in better use of lawyer’s talents in the analysis of legal issues and arguments and the drafting of agreements reflecting resolution of disputes by mediation or alternative dispute resolution methods.
ADR and mediation provide very real and practical solutions to many of the problems of weak and fragile judicial systems in Africa. They are not foreign, imported concepts, but ideals and methods that have long been used in traditional justice models throughout the continent. The goal should now be to create links which allow mediation programmes to feed into the formal judicial system, and to enhance their effectiveness and equity where possible. These simple tools provide a true opportunity to improve access to justice in Africa.
Fiona Mangan
[1] James Dobbins, Seth G. Jones, Keith Crane, Beth Cole DeGrasse, The Beginners Guide to Nation-Building, RAND Corporation, 2007. On definitions of rule of law also see: Richard H. Fallon, Jr. “’The Rule of Law’ as a Concept in Constitutional Discourse,” Columbia Law Review, Vol. 97, No.1, January 1997, p.1-56; and Friedrich A. Hayek, Law, Legislation, and Liberty, Volume 1: Rules and Order, Chicago: University of Chicago Press, 1973.
[2] Avinash K. Dixit, Lawlessness and Economics: Alternative Modes of Governance, Princeton University Press, 2004, also delivered as part of The Gorman Lectures in Economics.
[3] James Dobbins, Seth G. Jones, Keith Crane, Beth Cole DeGrasse, The Beginners Guide to Nation-Building, RAND Corporation, 2007.
[4] Definition from The Mediators’ Institute of Ireland website – www.themii.ie.
[5] Edgardo Buscaglia, William Ratliff, Law and Economics in Developing Countries, Hoover Press, 2000, p. 75.
[6] Ibid. The old legal cliché ‘Justice delayed is justice denied’ has clear relevance here.
[7] Ontario Mandatory Mediation Program (OMMP). See Law Reform Commission Consultation Paper 50 2008, p.113; Prince, Mandatory Mediation: The Ontario Experience (2007) 26 CJQ 2007 79, and Crawford, Michael G., “Alternative Dispute Resolution: Ontario’s Mandatory Mediation.” Canadian Lawyer 22(5)(1998): 33.
[8] Kuhner, Timothy, Court-Connected Mediation Compared: The Cases of Argentina and the United States, ILSA Journal of International and Comparative Law, Vol. 11, No. 3, p. 519, 2005 (Bilingual Edition) and Roger Williams Univ. Legal Studies Paper No. 22; Dierx, Janny, Penal mediation in Argentina and the Netherlands. Dutch Principles and Argentine Practices. A comparative investigation, (2006), on www.restorativejustice.org.
[9] Rules of the Superior Courts (Commercial Proceedings) 2004, S.I. No.2/2004, 6.
[10] Edgardo Buscaglia, William Ratliff, Law and Economics in Developing Countries, Hoover Press, 2000, p. 78.
[11] Ibid, p. 82.
[12] Examples include: American Arbitration Association (AAA) at www.adr.org; The Mediator’s Institute of Ireland at www.themii.ie; South African Association of Mediators (SAAM) at www.saam.org.za; Mediators’ Council of India at www.mediatorscouncil.org; African Mediation Association at www.africanmediation.org.
[13] Centre for Effective Dispute Resolution (CEDR) at www.cedr.com.
[14] Law Reform Commission Consultation Paper 50 2008, p.310; and Mediation Accreditation in Australia Report to The 8th National Mediation Conference, Australia, 3-5 May 2006. Available at
http://www.mediationconference.com.au/html/Accreditation.html.
[15] See Netherlands Mediators Institute website at www.nmi-mediation.nl and Law Reform Commission Consultation Paper 50 2008, p.335.
[16] Family Law (Family Dispute Resolution Practitioners) Regulations 2008. See National Alternative Dispute Resolution Advisory Council website at www.nadrac.gov.au and the Australian Government Attorney General’s Department website at www.ag.gov.au.
[17] Lilongwe Legal Aid Declaration, agreed 24 November 2004, Lilongwe, Malawi. A PDF version is available at http://www.penalreform.org/lilongwe-declaration.html.
[18] Jerome Barrett, A History of Alternative Dispute Resolution, Jossey-Bass San Francisco, 2004; and Law Reform Commission Consultation Paper 50 2008, p.21.
[19] Quoted by Felix Adewumi, Alternative Dispute Resolution: An antidote to court congestion, www.nigerianvillagesquare.com.
[20] Ibid, p. 9-10.
[21] El-Khawas, Mohamed A., Brain Drain: Putting Africa between a Rock and a Hard Place, Mediterranean Quarterly – Volume 15, Number 4, Fall 2004, pp. 37-56.
[22] The legal systems in South Africa, Benin, Tanzania, Uganda and Kenya are all heavily reliant on the role of paralegals. For further information on the role of paralegals in African justice systems see below section on Malawi and articles: Penal Reform International and Bluhm Legal Clinic of the Northwestern University School of Law Access to Justice in Africa and Beyond: making the rule of law a reality, National Institute for Trial Advocacy, 2007, p.65-68.
[23] Dr. M.M. Akanbi, Kwara Multidoor House: An idea whose time has come!, 2008, see www.nbailorin.org/download/TUESDAY, 29TH JULY, 2008.pdf
[24] Dominik Kohlhagen, ADR and Mediation: the Experience of French-Speaking Countries, 2007, www.dhdi.free.fr/recherches/etudesdiverses/articles/kohlhagenmediation.pdf.
[25] Penal Reform International and Bluhm Legal Clinic of the Northwestern University School of Law Access to Justice in Africa and Beyond: making the rule of law a reality, National Institute for Trial Advocacy, 2007, p19.
[26] PASI receives funding from the George Soros Open Society Institute. See www.soros.org/initiatives/justice/focus/criminal_justice/news/malawi_121009.
[27] See www.humanrights.dk.
[28] The project was inspired by Madaripur Legal Aid Association in Bangladesh. See www.humanrights.dk and www.disputeresolutionkenya.org for further details of the programme.
