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Introducing sharing rules

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Purpose

Talking about and showing sharing rules helps. They can compare what they will get to what other people got. 

Solutions summary

Facilitators indicate that knowing sharing rules can help people compare what is a fair and support negotiations

When to introduce sharing rules: 

  • Not too early in the process. First the needs (interests) of the parties should be clear to both of them. It is also better to have all the options explored (see tool 1.3, 2.5 and 2.6). Talking about money and other 'how much" issues works best if there is trust and recognition of interests. 
  • Before they make their first round of proposals. So they avoid extreme proposals. Low offers can be offensive. Extreme claims can make people afraid. This will slow the dispute resolution process.
  • When relevant throughout later discussions. 
  • It is not necessary that parties agree to a sharing rule. That can be very hard. 
  • Refer to the sharing rule in the solution (see Tool 5.1).

 How to talk or show sharing rules: 

  • Sharing rules can be talked about. You can ask parties what sharing rules they like to be applied:
    • What rules do you think are relevant?
    • What do these rules say about your conflict?
    • Do you know about examples of similar cases and how they were solved?
  • Making them visible by writing them down works. It confirms they are important. 
  • They can be printed on paper or on a card. This shows they are used again and again for these problems.  
  • Translate key case law into easy to read language and disseminate using leaflets.
  • Introduce sharing rules as stories about what other people considered as a fair outcomes
  • If available show intervals of outcomes which show the most frequent solution. Exclude the extreme values from the intervals.
  • Highlight that sharing rules are the 'normal thing to do';
  • Use social norms to promote a non-binding memorandum between the parties
  • Report results from completed cases to the media.

Local solution: Conference Comments

Make sure that the rules and norms introduced in the process are:

  • Realistic (legally and socially)
  • Told as stories
  • Do not worsen the positions of the parties
The facilitator first have to deal with the emotioal aspects of the dispute and then move to introduce rules.

Explain to the parties what BATNA (Best Alternative to a Negotiated Agreement) mean and what their BATNA is.

Do not convince the parties what have to do or how they have to solve the dispute. Explaining how others found fair decisions is more powerful.

Explain to the parties how the dispute will be solved in different types of dispute resolution mechanisms. For instance: what will be the consequences if one of the parties files a court suite or takes the dispute to another public authority.

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Added by: CONFERENCE

Local solution: How to introduce legal/social norms

Disputes between the parties usually aim at dominating of one party’s position over another. Each party believes that his/her position is closer to justice. Nobody wants to give up even if all the arguments and facts are against his/her position. Emotional aspect of the dispute is also important. People once very close to each other now become in opposite or sometimes hostile positions towards each other.

In this situations, the role of lawyer or facilitator is to invite the parties to review the problem in the framework of social and legal norms. No matter what subject the dispute has, whether it is related to family, land or inheritance, the lawyer shall draw the attention of the parties to the order and prescription of the law. No solution or settlement may be durable or sustainable if it is not in compliance with the existing social and legal norms.

In accessing micro justice, referring to social norms is more efficient as traditionally social norms are strong in Azerbaijani society. Therefore, settlement based on the social norms would ensure longer term and more sustainable solution compared to legal settlement achieved as a result of lenghty legal procedures involving the opposite parties. Even if the client insists on the legal solution of the issue, lawyer and facilitator shall explain the complexity of solution through legal norms and procedures. It shall be informed that the legal norms offer certain rights and privileges to all parties and the outcome of the legal procedure is not always predictible.

Lessons learnt from the previous similar cases shall be informed to the client in details by the lawyer or facilitator. The selected story shall be relevant to the problem of the client. Lawyer or facilitator shall inform parents – mother or father who want to keep his or her child on the similar case. Clients concerned with the inheritance problem shall hear similar stories and previous experiences relevant to their problem. 

How:

After listening to the client and careful review of the details on the problem, the lawyer or facilitator shall present information on the existing available social and legal norms. Relevance of the norms is crucially important. Setting an example of similar cases dealt previously might also be useful for client to see and comprehend the norms.

Social norms may be regulated on a voluntary basis or through signing a memorandum between parties. Provisions of this memorandum does not usually have a binding character. However, it establishes psychological burden for the parties to fulfill the obligations. Legal norms and procedures diminishes trust between parties and does not guarantee future settlement. The other party always may initiate appeal or launch the proceeding in case there is a change in circumstances. 

In case of selection of legal norms, the lawyer or facilitator shall follow hierarchy of norms, in other words start from the highest norms and further down. The constitutional provisions, norms contained in the legislative acts, decrees and order of the executive authorities shall be reffered to by the lawyer. 

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Added by: Praxis

Local solution: How to Introduce Legal and Social Norms in the Process

 

1.             To report  to the media (if there are any ) and parties on all completed cases (jurisprudence), for               education of future litigants
2.             To put (new) legislation under the spotlight.
3.             The ensure that implementation of sentences, is also done in public statements
4.             A continuing campaign concerning "values"
5.             By pointing to legislative acts and local practices as they apply locally and to point out that this applies to everyone, even (or perhaps especially) for parties who have a conflict

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Added by: DAS

Local solution: introducing norms

To show parties to see consequences; it can helps them to make decision thus mediators should try to provide with information on legal and social consequence in advance to parties if their problems cannot be resolved at this time, such as: -Legal consequence: mediators should show parties of legal solution; tell them that if this case resolved by court systems, they would lose money, times and friendship etc. Example: a minor conflict on land demarcation. In such a case like that if they resolve the case by using court systems; what is the benefit and what do they lose.   -          Social consequence: mediators should raise social consequence to inform parties if they cannot agree in a mediation process. Example: case of domestic violence: family’s economic would turning down, children could not going to school, losing relatives and friends etc.

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Local solution: Expert ideas

A procedural way to introduce norms is through evaluative mediation. An evaluative mediator could provide legal and social norms; use a caucus to evaluate the strenghts and weaknesses of a case, hence reducing uncertainty; and guide parties through the decision making process.

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Added by: DAS

Evidence from practice

Introducing formal information early: In Indonesia, mediators make sure that information about the formal system is presented to both parties early on in the mediation. This allows the information to frame the entire mediation.

Highlighting mediator experience: In Cambodia, Azerbaijan and Indonesia mediators provide information to parties in terms of what has happened in other cases. This provides some social norm information to parties and gives a reference for their decision to be made. Praxis lawyers in Azerbaijan are careful to select cases where a successful solution has been reached, and where the facts are as similar as possible to the case in hand.

Introducing Case Law: In Azerbaijan, they record case decisions from the courts and put them in simple leaflets for the public. This helps parties in a conflict to know the likely outcome from a court case. In Mali organisations ensure that there is at least one person in each village who has knowledge of the law and norms.

Introduce throughout discussions: Praxis lawyers also introduce legal norms as and when issues are raised in the discussion. As a topic is talked about, the lawyer will introduce what the legislation has to say on that matter.

Linking to local norms: Link to local rather than foreign norms where possible. Mali has a document very similar to the UNHR which demonstrates that human rights are not a ‘foreign’ concept.

Case/Norm selection: Lawyers for Praxis are careful in picking the norms they present. Sometimes legal norms are not helpful in finding a solution, so they introduce a social norm instead. On the other hand, social norms are often not very progressive, so they use legal norms (which are more progressive) to help a solution. In cases where neither norm is more useful than another, the lawyer will present both norms, and allow the parties to select the norm they wish to follow.

Evidence from literature

Strategies

There are many strategies and interventions available to facilitators. They include:

  • Involving concrete information about social or legal norms into a negotiation can help parties successfully reach agreement
  • During the intake session or a preliminary conference, and at any time during the process, explaining the process and indicating what information the parties may need to assist their decision-making
Baylis, C., Robyn, C., Power issues in mediation ADR Bulletin Volume 7 Number 8
Barendrecht, Maurits and Verdonschot, Jin Ho, Objective Criteria: Facilitating Dispute Resolution by Information About Going Rates of Justice (August 22, 2008). TISCO Working Paper Series on Civil Law and Conflict Resolution Systems No. 005/2008

 

Public Legal Education

Public Legal Education aims to:

  • Raise awareness of rights and legal issues and of the wider justice system
  • Help people to identify the legal dimensions of every day situations
  • Equip people with the skills and confidence to resolve issues and prevent problems
  • Enable people to recognise when they need help and find the best help
  • Help people to organise effectively for legal and social changes and get involved in shaping the decisions that affect them both at a local andnational level.
UK's Public Legal Education Organization Alliance, the guide can be downloaded at: http://www.plenet.org.uk/data/files/ple-principles-and-guidance-v1-1-254.pdf

 

Diversity of knowledge

A significant number of people lack knowledge, skill and confidence when dealing with civil justice problems. However, these barriers to legal capability are not evenly spread across the population or across different legal problem categories.

The 2010 report of the UK Legal Services Research Centre "Knowledge, capability and the experience of rights problems" by Nigel Balmer, Alexy Buck, Ash Patel, Catrina Denvir, Pascoe Pleasence, download here

 

Potential of ICT

New ICT opportunities can support legal information sharing. An example is the idea of an oral Wiki as a legal information innovation in Rwanda.

The primary objectives of the Oral Wiki are the following:

  1. Build technologies that connect disadvantaged communities to emergingtelecommunications infrastructures
  2. Increase access to justice
  3. Strengthen informal justice systems
  4. Facilitate information sharing among informal justice actors
  5. Facilitate information sharing between the informal and formal justice systems
  6. Facilitate more efficient and transparent informal justice systems
  7. Create archives of decisions made in informal justice systems
  8. Generate awareness around oral societies' technological needs 
Jeffers, C., & Agamanous, S. (2009) 'An Oral Wiki to Support Informal Justice Systems', IST-Africa Conference Proceedings

Introducing sharing rules

by admin on March 22, 2011

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