Alternative dispute resolution


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Alternative dispute resolution

  2. 2. 2 LIBERIA
  3. 3.  3
  4. 4.  Liberia is a country in West Africa that was founded in 1820 by free American Slaves and became an independent country in 1847.  It has a current population of 3.7 million people. Of that population, only 15% is literate (can read and write English). 4
  5. 5.  Although the use of land line telephones dates back in the 1970s, it was only concentrated in the capital of Monrovia for government offices and for families that could afford to pay the bills.  Today, there are four private mobile companies providing cellphone services in the country. Namely: 1. the Lone Star Tele – Communication Network, 2. COMIUN 3. CELLCOM and 4. The Liber Cell Network. 5
  6. 6.  The 5th service provider in this sector is the state owned telecommunication network called the Liberia Telecommunication Corporation (Libtelco). It is designated as a National Operator, responsible to provide fixed wireless phone, wireless Internet and fax services to the public. 6
  7. 7.  The fixed wireless phone services are available for use as desk phone in public offices, at homes as well as in various business enterprises and other entities.  About 35% of the population in Liberia makes use of cell phones to communicate and about 1% uses the land line to communicate while less than 1% uses the fax system to communicate.  (See /africamobile.pdf) 7
  8. 8.  The use of desktop computers and laptops are new to Liberia. The use of desktop computers dates back in the late 1980s for few government offices and use of laptop computers widely began in 1996.  About 5% of the population knows how to use computer and about 3% uses the internet to communicate especially through emails, Facebook but Skype is still new to the Liberian public. Less than 30 public corporations and private companies own their own website. 8
  9. 9.  The phrase ―alternative dispute resolution refers to looking outside the courtroom setting to resolve some disputes that are civil in nature.  In other words, Alternative Dispute Resolution ("ADR") processes are alternative methods of helping people resolve legal problems before going to court. ADR involves an independent third person, called a "neutral" who tries to help resolve or narrow the areas of conflicts. 9
  10. 10.  The use of ADR early in a case can result in the more efficient, cost-effective resolution of disputes with greater satisfaction to the parties.  More besides, one ADR method is voluntary, private and confidential, quick and inexpensive, informal and unstructured, parties control the process, parties make their own decisions and reach their own agreements (third party facilitate and guides the negotiation process for common ground), negotiated agreements can be enforceable, and could result in a win-win solution. 10
  11. 11.  Dispute is a fact of life. We face problems and disagreements all the times: at home, on the job, and in our neighborhoods. Not all these disputes are serious, and we may choose to ignore some without any consequences. However, some are more serious and cannot be ignored. If they are not dealt with, they may become worse and take time and money to resolve. (See data/40152_Chapter9.pdf) 11
  12. 12.  Going to court is one way of settling a dispute and Liberia has no national accreditation system for ADR. However, it can be costly and time consuming to use the traditional means for the court system to resolve disputes. Moreover, it is not always a satisfying process for the parties involved. More and more, people are looking outside the courtroom for quicker and potentially less costly alternatives for resolving disputes. 12
  13. 13.  I strongly support the view that integrated civil justice system wherein the courts are a forum of last resort, supported by other, closely related techniques for ensuring the law is open to all. 13
  14. 14. The European Commission suggests that: ―ADRs offer a solution to the problem of access to justice faced by citizens in many countries due to three factors: 1. the volume of disputes brought before courts is increasing; 2. the proceedings are becoming lengthier and; 3. the costs incurred by such proceedings are increasing (See-Directive 2008/52/EC of the European Council and of the Parliament of 21 May 2008 on Certain Aspects of Mediation in Civil and Commercial Matters, O.J. No. L.136, 24/5/2008, p.3, available at http://eur- 14
  15. 15.  Unlike the United States of America and other developed countries, the Liberian courts and the Liberian people have not yet recognized the effectiveness of ADR as a tool for settling disputes. The traditional means of going to court and some minimal levels of family gathering to find a common ground between the parties are still upheld. 15
  16. 16.  There are many alternative methods used nowadays to resolve disputes. Some of these are: 1.Mediation, 2. Negotiation and 3. Arbitration methods. (See spute_resolution) 16
  17. 17.  In fact the emerging development especially in developed countries are the use of ―On- line mediation‖ to resolve disputes that would normally take years to reach a settlement in a traditional court method of litigation. These online methods are the use of set-up websites (internet) that parties can file their complaints and the mediator have the ability to manage such information provided until the matter is resolved. 17
  18. 18.  For example: 1. The use of a fax machine, and 2. Telephone (cell phone and use of text messages), 3. snail mail, and the internet (email and website services) are gradually replacing the court system to resolve civil disputes like personal injury claims, domestic relations, labor matters etc (See-Ethan Katsh & Janet Rifkin , Online Dispute Resolution: Resolving Disputes in Cyberspace, p.118,2001) 18
  19. 19.  This presentation will endeavor to explore and introduce alternative methods to resolve conflicts in Liberia with the use of modern technology (fax machine, the use of cell phones/ telephone and somewhat by the use of the internet) especially so given Liberia‘s limited resources of human capital development and technology. 19
  20. 20.  My presentation will focus on two alternative methods to resolve dispute in Liberia: 1. Mediation method using the fax to communicate, and; 2. Mediation method using the phone (landline and cellphone-text messages) to communicate and resolve civil disputes.  These will be followed by recommendations and conclusion. 20
  21. 21.  A fax (short for facsimile), sometimes called telescoping, is the telephonic transmission of scanned printed material (both text and images), normally to a telephone number connected to a printer or other output device. The original document is scanned with a fax machine (or a telecopier), which processes the contents (text or images) as a single fixed graphic image, converting it into a bitmap, the information is then transmitted as electrical signals through the telephone system. The receiving fax machine reconverts the coded image, printing a paper copy. Before digital technology became widespread, for many decades, the scanned data was transmitted as analog.(See- 21
  22. 22.  Although businesses usually maintain some kind of fax capability, the technology has faced increasing competition from Internet-based alternatives. Fax machines still retain some advantages, particularly in the transmission of sensitive material which, if sent over the Internet unencrypted, may be vulnerable to interception, without the need for telephone tapping. In some countries (like Liberia), because electronic signatures on contract documents are not recognized by law while faxed contracts with copies of signatures are, fax machines enjoy continuing support in business. 22
  23. 23.  In many corporate environments, standalone fax machines have been replaced by "fax servers" and other computerized systems capable of receiving and storing incoming faxes electronically, and then routing them to users on paper or via an email (which may be secured). Such systems have the advantage of reducing costs by eliminating unnecessary printouts and reducing the number of inbound analog phone lines needed by an office. 23
  24. 24.  Attorneys in Liberia are amongst the 15% educated Liberians and also among the 3% of the population that use the internet to communicate. I supposed, the fax method of communicating information to a neutral third party could be the fastest technological method (than the snail mail) by which a mediator could receive a timely information to resolve a dispute. Parties will not have to travel long distances to file their complaints and submit evidence to a third party mediator which is cost saving and easy. 24
  25. 25.  Much of the power of mediators resides in their control over the process of communication. The richer the interaction, the more mediators can use their skills to assist the parties to move toward consensus. Mediators do this not simply by letting the parties talk but by managing the flow and exchange of information. In order to properly preserve the information received by fax, the third party neutral mediator can scan the documents and store them in a special folder on his computer and also on other backup storage devices. 25
  26. 26.  The concept of mediation is a voluntary process in which an impartial person (the mediator) helps with communication and promote reconciliation between the parties which will allow them to reach a mutually acceptable agreement.  Mediation often is the next step if negotiation proves unsuccessful. The use of mediation is to 1. define problems or disputes, 2. settle those disputes, 3. manage conflict, 4. formulate policy; 5. negotiate contracts; 6. prevent conflicts and other specific functions. ( See CompletedDissertations/Susi%20Riva%20- %20Conflict%20Narratives.pdf) 26
  27. 27.  The mediator manages the process and helps facilitate negotiation between the parties. A mediator does not make a decision nor force an agreement. The parties directly participate and are responsible for negotiating their own settlement or agreement. 27
  28. 28.  At the beginning of the mediation session, the mediator will describe the process and the ground rules. The parties or their attorneys have an opportunity to explain their views and submit documents in evidence to support their arguments of the dispute. A mediator helps each side better understands the other's point of view. Sometimes, the mediator will meet separately with each side. Separate "caucusing" can help address emotional and factual issues as well as allow time for receiving legal advice from your attorney. Mediations are generally held in the office of the mediator or other agreed location. 28
  29. 29.  If an agreement is reached, it will generally be reduced to writing. Most people uphold a mediated agreement because they were a part of making it. It can become a contract and be enforceable. If there is no agreement, you have not lost any of your rights and you can pursue other options such as arbitration or going to trial. 29
  30. 30.  It has been said that the best method of dispute resolution is for the parties to become adversarial through a face to face confrontation and given that English is a second language spoken in Liberia, the parties or their attorneys might not be so comfortable with their pleadings without physical appearance before a mediator to argue their case. In this regard, the third party mediator, after reading the parties complaint documents and pieces of evidence, he must develop a form -in question form- of the facts stated in the complaint and fax it to the parities to answer. 30
  31. 31.  For example, the question could be: COMPLAINANT: 1. You said you purchase two town lots from Defendant‘s father in 1966 .Did you probate the land deed within two years of the purchase and if so, can you fax me a copy in two days? 2. Have you been cleaning the land since you purchase it and if so when was the last time you did so? 31
  32. 32. DEFENDANT: 1. you said you have no knowledge of your father selling, leasing or conveying the land in question to Complainant and at no time to the best of your knowledge you neither saw Complainant cleaning the property nor built any structure on it. If the contrary is proved by Complainant, will you be willing to restore his rights and pay his expenses for going through this mediation process? 32
  33. 33.  In this regard, the mediator has to be fair and transparent by furnishing the parties with the responsive forms along with his findings.  The Mediator must employ ethical standards: competency and confidentiality to build trust. Writers in the field of mediation normally espouse a code of conduct that mirrors the underlying principles of the mediation process (See-Ethan Katsh & Janet Rifkin , Online Dispute Resolution: Resolving Disputes in Cyberspace, p.145-167, 2001). 33
  34. 34.  In this respect some of the most common aspects of mediator codes of conduct include: 1. a commitment to inform participants as to the process of mediation; 2. the need to adopt a neutral stance towards all parties to the mediation, revealing any potential conflicts of interest; 3. the requirement for a mediator to conduct the mediation in an impartial manner; 4. within the bounds of the legal framework under which the mediation is undertaken any information gained by the mediators should be treated as confidential;  See course 34
  35. 35. 5. mediators should be mindful of the psychological and physical wellbeing of all the mediations participants; 6. mediators should not offer legal advice, rather they should direct participants to appropriate sources for the provision of any advice they might need; 7.mediators should seek to maintain their skills by engaging in ongoing training in the mediation process; 8.Mediators should practice only in those fields in which they have expertise gained by their own experience or training. (See 35
  36. 36.  In view thereof, I think the mediation process using the fax machine to communicate information for an alternative dispute resolution will work better for Liberia than the email method because only a small portion of the population knows how to use computer (and the internet) and in fact, the internet system is mostly concentrated in the capital of Monrovia. Unlike the internet system for email communication, the fax system can work to every county in the country because of the presence of the Liberia telecommunication Network in the country. This method can help to speed up communication of complaints and documents to support the complaints for the mediators to help resolve such dispute as they arise. 36
  37. 37.  The emerging phenomenon driving the world crazy today is the use of modern technology:- Cellphone and the Internet. These modern gadgetries have created a global village for the peoples of the world to relate to one another in a speedier and most effective ways than it has ever been in the past. Cellphones enables one to communicate to friends across the globe at any time anywhere while the internet technology has replaced the snail mail that took days, weeks or even months to reach the receiver. 37
  38. 38.  The internet technology has made it even possible to physically see friends across the globe in a live discussion through the use of for examples: 1. Skype, 2. Ovoo, etc. Mediators across the world are also making maximum use of these technologies to resolve disputes. 38
  39. 39.  However, the uses of these modern technologies are only possible and meaningful if they are adequately available to the population and the population is aware of their importance and are educated to use them well. As mentioned, Liberia has 15% literacy rate and of the 15% literate population only 3% is computer literate. Moreover, the internet service in Liberia is not as strong as developed countries have and internet service providers are very few and concentrate only in the capital city of Liberia –Monrovia and its environ. Therefore, the use of internet to resolve disputes would be far-fetched. (See- )
  40. 40.  What would be possible however for ADR in Liberia is the use of telephone and cellphones. About 65% of the population uses both telephones and cellphones to communicate in and out of the country. This is so because as mentioned, there are four cellular companies in the country and no one pays cellphone bill nor are cut off for refusing to buy minutes from the cellular companies. 40
  41. 41.  Unlike developed countries, people in Liberia can receive calls from anyone in the world without being bill by the cellphone companies. All they need to do is to make sure their cellphone batteries are sufficiently recharged with power to enable them receive calls. They will however not be able to make calls if they didn‘t buy minutes. In fact, cellphones are cheaper in Liberia that average Liberians can afford to buy as low as US$10.00 (which is about $700.00 (Liberia Dollars). 41
  42. 42.  A mediator can make maximum use of this medium (cellphone) to resolve disputes at any time anywhere in the country once he follows the principles of mediation:  1. Voluntariness,  2. Informed Consent,  3. Self-Determination,  4. Impartiality  5. Confidentiality,  6.Avoiding Conflict of interest,  7. Honesty and  8. Competence/professional role boundaries  (See- nciples.html; and see also- David A. Hoffman, Mediation: Approaches and Insights(Juris Publishing 2003)). 42
  43. 43. Voluntariness-In order to work, mediation must be a voluntary process where the parties enter freely into mediation and any resulting resolution. The parties are free to end participation in mediation at any time. No coercion is required in entering into agreement to resolve a dispute; (See,%20 CHAP%201,%206-1-2012.pdf) 43
  44. 44.  Informed Consent-Before consenting to participate in mediation, the parties have the right to be informed about the mediation process as well as their legal rights and options. Mediators make every effort to ensure that the parties are fully informed about, and consent to, the mediation or other ADR process, before and during the mediation session; (See /sitesofinterest_files/Cooley-LoveArticle.pdf) 44
  45. 45.  Self-Determination-The parties—not the mediator—will define the scope of the issues at mediation, and will determine the outcome;  Impartiality-The parties are entitled to a fair and impartial process, including a neutral, impartial mediator; (See 2013.chapter.11.pdf) 45
  46. 46.  Confidentiality-Knowing that the mediation is confidential enables the parties to speak freely and explore options without fear that what they communicate at the mediation might be used against them in court if the dispute is not resolved. In addition to the overall confidentiality of the mediation, parties also may request that certain information expressed in the presence of the mediator in a private caucus not be shared with the other parties; (See 46
  47. 47.  Honesty- For mediators, the duty of honesty means, among other things, full and fair disclosure of: (a) their qualifications and prior experience, (b) any fees that the parties will be charged for the mediation, and (c) any other aspect of the mediation which may affect their willingness to participate in the process; (See BLC/version/default/part/AttachmentData/data/2005-07-mediation- ethics.pdf?branch=main&language=default) 47
  48. 48.  Conflict of interest- Mediators must avoid serving in cases where they have a direct personal, professional, or financial interest in the outcome of the dispute. This duty becomes more complicated where the mediator‘s interest is indirect – e.g., she works in a firm with someone who has an interest in the outcome, or she is related to someone who has such an interest. If the disclosure is made well in advance of the mediation, so that the parties have the opportunity to choose another mediator, their acceptance of the mediator – after full disclosure -- generally resolves the potential conflict. In some cases, however, the mediator should decline the case if the conflict is so severe that even waiver does not cure it, or the appearance of impropriety is so strong that it cannot be resolved by full disclosure; (See 48
  49. 49.  Competence/professional role boundaries- Mediators have a duty to know the limits of their ability; to avoid taking on assignments they are not equipped to handle; and to communicate candidly with the parties about their background and experience. Sometimes the parties want a mediator with subject matter expertise (such as divorce), or a particular set of process skills (such as multiparty public policy negotiations).  (See 49
  50. 50.  If the mediator adheres to these principles he can initiate an ADR Process using cellphones to resolve disputes. He can make use of text messages and voice mail and even video recordings to gather data regarding the case. Audio testimonies can also enhance the mediation process especially if the parties are unable to attend the mediation process or the parties can call or leave a voice mail detailing his/her complaint and the mediator will respond objectively and communicate the defendant regarding the complaint and the mediator can arrange a meeting between the parties. 50
  51. 51.  The Court may enforce any agreement reached at mediation. The parties to the mediation could ensure explicit consent of each other, to request that the content of a written agreement resulting from mediation be made enforceable. The content of such an agreement can be made enforceable unless, in the case in question, either the content of that agreement is contrary to the law of the State. If the parties conclude an agreement settling a dispute, that settlement agreement should be binding and enforceable. ( See 8975-a445e82c1da8/Presentation/PublicationAttachment/7ad39b6f- f345-4512-b9a6-17df1201ffeb/988.pdf) 51
  52. 52.  The enforceability of outcomes is an important feature of dispute resolution processes. A decision of a court is legally binding and is enforceable by the parties to the dispute and enables the final resolution of a dispute. It is important to note that mediation processes are not binding in themselves, but agreements reached through those processes can be made binding. (See 1. 3/, 2. 52
  53. 53.  For example, a mediated agreement can be in a binding contract, which can then be enforced in court. It has been argued that mediated agreements may prove to be long lasting than imposed settlements, such as court orders, because the parties have voluntarily participated in drawing up the terms of the agreement and are, therefore, more likely to adhere to the terms of the agreement; (See ediated_agreements.pdf) 53
  54. 54.  Another example is , a structured settlement with payment terms within a party‗s ability to pay is much more likely to be paid and useful to the other party than a court money judgment which leaves the prevailing party with the unhappy task of moving forward with collection actions as the loser simply cannot make the payment. ( See 54
  55. 55.  Government of Liberia (GOL)  Bill Gate Foundation;  American Bar Association (ABA);  Knight Foundation;  Global Benefits Group (GBG) ;  Human Rights International Justices Recent Grant ;  International Bar Association;  Us International Grants Making Council On Foundation;  The American Society Of International Law Fellowship And Research Opportunity;  Council On Foundation ( International Legal Grant Making), and;  USAID 55
  56. 56.  It is important to reiterate that the potential benefits of ADR, including the cost and time effectiveness of the processes, must be balanced against the reality that mediation can also be seen as an additional layer on civil litigation where it does not lead to a settlement and that every step along the way drives up the costs of litigation. Furthermore, one should consider that there are a number of cases which do not lend themselves well to ADR processes. 56
  57. 57.  One such category, for instance, would include those disputes involving allegations of illegality or impropriety. ―Cases based on allegations of fraudulent conducts or illegal behavior (criminal conducts) is not conducive to mediation because the polarized positions that characterized these disputes inhibit discussion. Moreover, they often place the mediator in an impossible ethical position. 57
  58. 58.  ADR may not be appropriate in some cases where power imbalances may exist which put the parties on an unequal footing, allowing one party to place undue pressure on the other. The result may be that one party may impose their solution on the other side. In other cases there may be uncertainties in the law which needs to be clarified, either because there is a lot at stake in a particular case, or because its outcome could affect a number of other cases. 58
  59. 59.  Sometimes legal precedents need to be relied on, or to be established for future cases. There are cases in which public interest dictates that a public hearing should take place and a public decision be made. Furthermore, any case in which a party is motivated to engage in an ADR process, but only for improper tactical reasons, is not one appropriate for resolution through ADR. 59
  60. 60.  The corollary to the general rule that some types of cases ought not to be resolved through ADR processes is that parties to specific types of disputes should nearly always be encouraged to consider mediation. I think disputes which are most amenable to resolution through mediation include: 1. appropriate family law disputes; 2. appropriate employment law disputes; 3. property disputes and, in particular, i. boundary disputes; ii. probate disputes, 4. appropriate medical negligence claims; and 5. commercial and consumer disputes. 60
  61. 61.  While it is difficult to set out general categories of cases which are appropriate for resolution through mediation , it can be suggested that features of appropriate cases include: 1. where the parties wish to restore or maintain their relationship with the other party (parents, business partners, siblings); 2. claims where the monetary and non-monetary costs of litigation are disproportionately high in comparison to the issues in dispute; 3. claims where one or both parties are seeking remedies which are not available through the traditional court system (such remedies may include: an apology, an explanation; flexibility in relation to financial repayments; changes in administrative procedures); and 4. where the parties wish to resolve the dispute in a confidential and private manner. 61
  62. 62.  It is also important to note here that not all cases are suitable for resolution by ADR, just as the court based adversarial process is not suitable for all cases. The decision to use ADR should be made on the basis of a range of factors including: 1. how best to serve the specific interests of the parties and 2. how best to ensure that justice is accessible, efficient, and effective for the parties involved. 62
  63. 63.  With regards to enforceability of the agreement reached by the parties, I recommend that: 1. a Court may, on the application of the parties to any written agreement, reached a mediation, enforce the terms of that agreement where it is satisfied that is appropriate to do so. 2. The courts should remain impartial to enforce the parties agreement irrespective of status in society of the parties involved. 63
  64. 64.  I also recommend that property boundary disputes are appropriate for resolution through mediation and those parties should be advised by their legal representatives to consider and attempt mediation or conciliation in such disputes prior to the commencement of litigation. Moreover, the courts should continue to be pro-active in advising parties in property disputes and to consider the adjournment of hearings to allow the parties to consider mediation. 64
  65. 65.  And as mentioned, due to Liberia‘s limited resources and human capital development, the use of internet and websites to resolve dispute would be far-fetched, however, the use of other methods like fax machines, cellphones and audio recorders can be used for out of court settlement of disputes. 65
  66. 66.  All that is required is national legislation to encourage Liberians to go to mediation before resorting to a traditional court system especially to enforce the agreement reached by the parties that was signed prior to going to mediation. The court may set aside the findings of a mediator or decision by arbitrators if it is contrary to the laws of Liberia or the agreement was reached by duress, coercion, or fraud. 66
  67. 67.  Mediation is time saving, less costly, and can enhance peace, friendship and lasting good relationship between the parties.  Indeed, Liberia needs concerted efforts to ensure legislation for mediation and for the courts to create national awareness and encourage people to seek mediation first before litigation.  Mediation will help to strengthen peace in Liberia. 67
  68. 68. THANKS 68