Talking about and showing sharing rules helps. They can compare what they will get to what other people got.
Make sure that the rules and norms introduced in the process are:
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.
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.
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.
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
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.
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.
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.
There are many strategies and interventions available to facilitators. They include:
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 aims to:
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
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
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:
Jeffers, C., & Agamanous, S. (2009) 'An Oral Wiki to Support Informal Justice Systems', IST-Africa Conference Proceedings
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