Ensuring a fair, good quality decision making process when third parties are involved as decision makers.
When facilitators have invited a third party decision maker into the process, it is important to make sure it is a fair process. The guidelines in this tool are valid for all decision-making options (see tool 15). They are helpful if you just ask influential people to assist the parties (tool 18), ask them to participate in decision making (tool 18a), set up a tribunal (tool 18b), or ask them to advise on an outcome (tool 18c). The guidelines are also helpful if you try to improve an existing procedure. For instance a procedure before a court or any other tribunal. A facilitator can help to make the process more fair in the following ways:
In the preparation of the Hearing
Suggest or arrange the meeting at a safe, secure place (see Tool 1.8)
Inform all people about ground rules (see Tool 2.1)
Ensure that the third party is informed of: the interests, relationships, facts, emotions and ideas for solutions. For instance by giving the information in the map of the dispute (Tool 1.5)
Ensure that the third party is informed about the relevant norms hat protect basic interests (no violence at home; tenure security; etc) and sharing rules (Tool 3.1).
At the Hearing
Ensure an opportunity for the parties to tell their story.
Look at the seating arrangement and change it if needed.
Ensure equal speaking times.
Ensure that a less powerful party is not outnumbered by the number of persons present at the other side.
Advise third parties to inform the parties about what will happen. Which issues will be discussed and in what order?
Advise third parties to summarize the key issues. And what they understand are the points of view of the parties.
Invite third parties to ask parties to correct or add information.
If needed: advise to involve more people as witnesses.
Advise third parties to help the parties grow towards acceptable decision by:
Referring to sharing rules and solutions accepted by others in similar situations.
Suggesting a range of possibly fair solutions (between ... and ...).
Involving parties by asking for reactions
Advising on a possible decision
Asking for more reactions
When taking a decision:
Third parties can be advised to take into account all reactions.
Giving reasons for the decision.
See Tool 5.1 for the elements of a good agreement or decision.
Local solution: Conference Comments
Difficult to find neutral party. Move mediation to arbitration. Stay informed about what is happening → follow up professional monitoring. Conciliation - Arbitration. Continue to support.
Challenge: parties will try to influence the other party in advance.
Make each party aware of their role.
Meeting should be arranged by the facilitator at a neutral venue → involve more people.
Role of children to share what happened domestic issues.
Local solution: How to set up a panel if there is no person who can take a speedy and fair decision
Arbitration, each party appoints a panellist with the panellists and then himself appoint third member, who will make a binding decision within the range provided by the panellists are asked
Local solution: How to Conduct a Fair Process with a Third Party
1. Ensuring the impartiality of the third party, even after decision; 2. Consistency and full implementation of fair hearing; 3. Pre clarity about appeal opportunities
Local solution: Tips for a fair process
As mentioned in tool 15 regarding the roles of forth parties; thus, in the mediation process, mediators just follow the below suggestions:
Provide forth parties with times to explain parties to conflict
Meet forth parties to discuss in finding new strategies in resolving problems fairly Provide them a list of ideas, which have been used in mediation process in the past, as an experience/lesson.
Local solution: Expert Input
It is important that the roles are clear. The facilitator should not play judge, but support the process by providing and monitoring the steps in the process on the neutral forum. The facilitator should only share information with the judges that has been consented to by the parties. To be trustworthy the facilitator should not breach privacy or choose sides. (interview with Jeroen Brouwer 16 March 2010)
Evidence from practice
Elements of procedural justice The informal Abunzi courts which operate in Rwanda place a strong emphasize on giving parties the opportunity to share their views.
Evidence from handbooks
A clear proces step plan
The process at the village court: Step 1. The complainant or representative begins, and gives their side of the story, telling the court what the defendant is accused of. The magistrates should ask questions to clarify any points that are not clear. Step 2. The defendant or representative replies to the accusations and tells their version of the story. They explain why they are innocent. The Magistrates can ask questions to clarify any unclear areas. They can also make statements to the parties to help them understand any issues in the case they have identified. Step 3. The complainant calls witnesses. The defendant must be allowed to ask the witnesses questions if they want. The Magistrates may also ask questions if they wish. Step 4. The defendant calls witnesses. The complainant must be allowed to ask the witnesses questions if they want. The court may also ask questions of the witnesses. Step 5. The Magistrates asks both parties if they have anything further to say and listen to any submissions made by the complainant or defendant. Step 6. The Magistrates considers their decision. This verdict is reached by majority vote. A decision is made on punishment or compensation and becomes an Order of the particular Village Court. Step 7. The Order is then made on a Form 5 or 6 by the clerk and read out to the court. The court should ensure that both parties understand the decision and both should sign the Order if possible.
There are also some basic rules that Village Court Magistrates should think about to help make sure that the Village Court is fair. Sometimes these are called rules of natural justice.
A person must understand what he or she is accused of doing.
A person must be able to defend himself or herself. This includes being allowed to or contradict what others say about him or her.
A person must be allowed to ask questions in court.
Both sides must be present when a case is heard.
A magistrate cannot hear a case if he or she has any interest in the outcome.
The court must be fair in hearing disputes and making decisions.
Everybody should be able to see the court is acting fairly.
Courts Manual, Papua New Guinea, 2003
Evidence from literature
Fair procedures were found to enhance many important cognitions, attitudes, feelings, and behaviours. Research has demonstrated that the benefits of procedural justice include an increased satisfaction with and acceptance of decisions and outcomes, and enhanced obedience to law.
Greenberg, 1987; Lind, Kulik, Ambrose, & de Vera Park, 1993; Thibaut & Walker, 1975; Tyler, 2006
There is substantial evidence that people indicate that they find the same elements important in procedure no matter the type of conflict
Folger 1987, Lind & Tyler 1988, Lind e.a. 1990, Thibaut and Walker 1975) In "De civiele zitting centraal, informeren, afstemmen en schikken", Janneke ter Linden, 2010
44 models of conflict, negotiation and third-party processes are identified from a review of organisational conflict.
Models of conflict, negotiation and third party intervention. A review and synthesis, R. J. Lewicki, S.E. Weiss, D.Lewin 2006
Process control: Amount of influence an individual has on the process
Decision control: Amount of influence an individual has on the outcome
Consistency: Procedures are applied consistently across people and across time
Bias suppression: Decision-maker should be neutral in order to ensure that procedures are free from bias
Accuracy Procedures should be based on accurate information
Correctability There should be a possibility to correct or contradict statements and there should be appeal procedures for correcting inaccurate outcomes
Ethicality: Procedure should implement general ethical and moral standards
Politeness: Authority should treat people politely
Dignity: Authority should treat people with dignity
Respect: Authority should treat people with respect
Propriety: Authority should refrain from improper remarks or comments
Honesty: Authority should be truthful in its communications
Justification Authority should provide explanations about procedure
Reasonable justification: Explanations regarding procedure should be reasonable
Timely justification Details about procedure should be communicated in a timely manner
Specific justification Informational justice Explanations should be tailored according to the individual’s specific needs
Effort The outcome should reflect the effort put into the case
Appropriateness: The outcome should be appropriate for the input
Contribution The outcome should reflect what the individual contributed
Performance: The outcome should be justified given the input
Voice towards the other party
Opportunity to receive or give explanation
Opportunity for remorse/forgiveness
Table 1. List of justice indicators (Colquitt, 2001) in Klaming, L, Giesen, Access to Justice: the Quality of the Procedure, 2008 (updated 2011)
Effective practices for judges
In research of self represented litigation network the following effective practices have been identified:
Judges should begin every hearing with a brief summary of the reason of the hearing and the issues that are presented for decision;
Judges should explain the process to the parties
Judges can actively seek information from parties by:
allowing parties to make initial presentations to the court
breaking the hearing into topics
obviously moving back and forth between parties
praphrasing the testimony and arguments of the parties
mainting control over the courtroom, for example by interjecting, saying: lets not get into that just yet. i would like to hear the other party's views on x first.
giving parties an opportunity to be heard while constraining the scope and length of their presentations.
giving parties a last opportunity to add information before annoucing a decision
Judges should not assume agreement from a lack of verbal or non verbal response of the parties
Judges should aim to let parties find their own solution
Judges should use non verbal communciation effectively
mainting eye contact
orienting the body to each litigant in turn
nodding to signify understanding
use hand gestures to postpone or invite a party to speak
maintain pleasant and facial expressions
Judges should articulate the decision clearly and explain it to parties per decision point.
Judges must anticipate and deal with compliance issues by addressing them clearly in the decision
After the process a written minute with the decision and motivation should be given to both parties.
Judges can set next hearings for a follow up and explain next steps
Greacen Asscociates on behalf of the Self-Represented Litigation Network, Effectiviness of Court room communication in hearings involving two self represented litigants, 2008