Have the outcome backed up by people with authority. This stimulates compliance. People feel important people are watching over their shoulder. Enforcement by court is made more easy.
Votes at Conference: 18
Some tactics for linking to more formal systems can be:
An agreement would be ratified by a village head or by a judge or other designated authority; and the contracts should be registered in central register. It is important that both parties receive a copy of the signed agreement.
In order to make an agreement to be an official one, make sure mediators do the following:
Collaboration with courts: In the judicial facilitators system in Nicaragua, facilitators are helpers of local judges. The facilitators (paralegals) write down the agreements in a notebook. Regularly, the facilitator shows the notebook to the judge. So the judge oversees the quality of the agreements, and adds legitimacy to them.
Collaboration with authorities: In each of the commune dispute committees that operate in 56 communes in Cambodia, one of the members is a policeman. Also in other countries dispute resolution providers collaborate with the local authorities to increase pressure.
Informal courts that are recognised by the formal system: In Rwanda the Abunzi courts consist of lay people as judges who make decisions in the first instance. These decisions are recognised to be legally binding. In Indonesia, KBH mediators keep records from the mediation and have signed agreements which are respected by local police.
Appeal possible from informal court to formal court: To oppose decisions of the Abunzi courts in Rwanda and village courts in Papua New Guinea appeal is possible at the formal court.
Formalising agreements; In many countries including the Netherlands a agremeent that has been reached in mediation can be formalised by a signature of a judge.
Minimum principles for recognition of informal processes might be:
Alternative Dispute Resolution in the Civil Justice System, NADRAC Issues Paper March 2009
Mediation is not selling itself as an informal alternative to court, but rather emphasizing its formality and similarity to court, for instance that it uses a regulated procedure, agreements are based on law and recognised by the court.
Reforming the People's Mediation System In Urban China, Aaron Halegua, Hong Kong Law Journal, 2005
Linking tribal courts and the formal system in Afghanistan.
There are a number of steps that can be taken to tie together sub-national court systems with the national level systems that could provide a complementary system that meets the needs of the people and provides dispute resolution at all levels in Afghanistan.
These steps include:
P.O. Box 80523
2508 GM The Hague
+31 70 3589221 (phone)
+31 70 3549766 (fax)
Faculty of Law, Tilburg University
Room M 907 (Montesquieu Building)
PO Box 90153
5000 LE Tilburg
+31 (0)13 466 2281 (phone)
+31 (0)13 466 2323 (fax)