Independent Development Fund (IDF) is constantly working to promote access to justice at the grass root level and one of the feasible, fast and working approach that has seemed effective in providing access to justice for the poor is through the ADR mainly through mediation and sometimes arbitration. The ADR approach has proven effective in enhancing access to justice especially for the most vulnerable groups in our areas of intervention. For example, Out of the 1,066 cases that were handled by our partners in this reporting year, using ADR mechanisms, 659 cases were successfully concluded showing 60% successful completion of the cases received, compared to 77 cases successfully concluded in formal courts out of 297 (25% completion rate) as shown in the graph above.
According to the Law Reform Commission, the term “alternative dispute resolution” or “ADR” is often used to describe a wide variety of ways to resolve disputes that are close, or alternative to, full-scale court processes. The term can refer to everything from negotiations that are facilitated in order to reach an agreement, in which the parties disputing are encouraged to negotiate directly with each other prior to some other legal process, to arbitration systems or mini-trials that look and feel very much like a courtroom process. ADR systems may be generally categorized as negotiation, conciliation/mediation, or arbitration systems.
Negotiation systems create a structure to encourage and facilitate direct negotiation between parties to a dispute, without the intervention of a third party. Mediation and reconciliation systems are similar in that they bring in a third party between the two groups that are in disagreement, either to mediate a specific dispute or to reconcile their relationship. Arbitration systems authorize a third party to decide how a dispute should be resolved. It is Arbitration programs may be either binding or non-binding. Binding arbitration produces a third party decision that the two parties disagreeing, must follow even if they disagree with the result, much like a judicial decision. Non-binding arbitration produces a third party decision that the parties may reject.
As the local saying goes that “the stick that is far cannot kill a snake.” The justice system in Uganda still faces a myriad of challenges including, high cost of litigation, delay in conclusion of matters, complicated court procedures which all contribute towards hindering access to justice especially for the indigent groups.
Anthropologists of the structuralist-functionalist school generally affirm that patterns of social ordering determine the forms of dispute resolution in any given society. According to this school, in simple, pre-industrial societies where relations are multiplex (involving various interests which are continuing), parties will rely on negotiation or mediation in settlement attempts which generally lead to consensus and compromise. Likewise in our interventions at the grass root level especially in rural communities, we have learnt that if communities are well empowered, they are in position to resolve simple cases through mediation and sometimes through arbitration (using the empowered traditional courts or established structures) hence relieving the formal courts of the many case backlogs. We are therefore learning from our 8 supported projects in 8 districts in Uganda that ADR Approaches can effectively complement the formal justice systems if effectively supported to handle some of the minor cases.
Some of the factors that have made the ADR approaches very successful include; language that is familiar to all the parties involved, accessibility of the structures, affordability, utilization of local resources, decisions are based on consensus and that the decisions made seek to heal and unite disputing parties. In addition communities have mentioned that the ADR courts enhance incorruptible, proceedings because case resolvers live in the community and hence they understand circumstances around a particular case.
This has also been further facilitated by trainings for the people involved in ADR structures on access to justice. Our supported interventions across the country have trained 5828 people in this year who are working as community paralegals, community support structures and as clan leaders on laws, case management and referral and are facilitated to handle and address cases at the grass root level.
Where ADR has worked:
The ADR concept is not new as it has been successfully used in several countries world over. ADR has worked well in Ghana. In 2003, as part of a project on judicial reform, Ghana held its first mediation week in which about 300 cases pending in select courts in Accra were mediated over 5 days. The effort was a major success, with 90 percent of surveyed disputants expressing satisfaction with the mediation process and stating that they would recommend it to others. Although this was tested in the formal system the Rwanda case shows the success of ADR in the informal structures; there is great evidence of success in the Gacaca courts where a community and leaders known for their integrity and wisdom gathered to discuss and resolve conflicts. The traditional dispute resolution system dealt with issues within or between families and members of the same community after the mass of genocide. The public elected the judges who were known as inyangamugayo (people of integrity in their community) and who presided over the hearings in the Gacaca courts.
The Gacaca courts played a significant role in finding out what happened during the genocide but also greatly helped in clearing the backlog of court cases. They allowed communities across Rwanda to meet, face to face, and talk about the events of 1994. In this way, they laid the foundation for peace and reconciliation.
ADR should not be seen as a separate entity from the court-based arrangements for civil justice but rather should be seen as a complement and an integral part of the entire justice system.