Have parties comply with outcomes.
In order to respect and implement the settlement, both parties shall understand the substance and all the details of the agreement clearly and correctly. It is the role of lawyer or facilitator to explain the agreement terms to the parties. The agreement shall be fair and effective, both parties shall accept and see the benefit of the settlement in their lives. Presence of the third party in settlement might also be helpful for further guarantee of the implementation.
Lawyer or facilitator shall ensure that client understands the respect and implementation of the reached agreement provides both material and moral advantages to the parties. Lack of respect to the obligation to follow the agreement may result with new and more complicated legal or administrative case. Parties will have to spend more time and money to legal procedures to settle this dispute. So, the respect of the agreement prevents extra expenditures from the family budget.
From moral point of view, it is important to explain to client that third parties, relatives, friends and even local authorities may follow up the dispute after settlement. Any infringement of the promises to respect the agreement may endanger the reputation and also position of one of the parties involved in the dispute. Lawyer, facilitator or any other third party intermediary shall keep in touch with the client and follow up the implementation of the settlement terms.
One way of motivating the parties to follow and respect the agreement reached is to use similar stories. In one case, parties did not follow the agreement reached through mediation and preferred applying to court. They applied to the court of first instance, then appeal court and supreme court. However, neither of the parties were satisfied with the final court decision which remained unchanged. In the end, the parties referred to the solution gained through mediation as this was flexible and ensured both parties amicable solution.
In this sense, highlighting the material and moral advantages of the respect to the agreement is important. Parties shall be informed on the graver outomes of non fulfillment of the obligations as the other party may put stricter conditions against non implementation. As it was mentioned, similar stories shall be used in order to convince the parties in showing respect to their promises.
In family disputes, parent shall be explained that the respect to the agreement is in the best interest of child. If they respect the benefit of their child, they shall also fulfill all the terms and conditions reached as a result of settlement. Otherwise, legal proceeding will find them guilty and court may issue stricter decision. Fulfillment of the obligation will also increase emotional ties in the family and in future, may even improve the relations between parents. Children definitely would benefit from joint celebration of the birthday of child, meeting child regularly.
In disputes related to inheritance, parties shall be explained that taking this issue to the court proceeding level would publicize their problem and affect the reputation of their family. Their father or mother would not accept this way of solution and that the parties shall find amicable solution through mediation and direct negotiation with the assistance of the facilitators. The society, especially in traditional society people usually have strong reprimand of the children disputing over the inheritance and applying to court.
- An agreement can contain incentive and/or preventive provisions in the agreement such as:
- Clear compliance date;
- Interim report on progress;
- Include provision that if the contract is fulfilled in time that such interest or any other form of delay damages needs to be paid
There may also be included as repressive provisions:
- Penalty clause / delay damages for breach of contract;
- Providing an enforcement order to the contract: if one party fails to fulfill the contract, the other party in execution of the agreement.
After the two parties to conflict have agreed; the important things are the agreement implementation by the two parties. Below are a number of ideas to assist mediators to impose parties in agreement implementation:
Making the conflict public: Online traders that use Ebay will have their conflict and reputation exposed on the internet if they refuse to take part in conflict resolution or comply to an agreement. Letting parties find their own solution: Facilitators in the refugee camps in North Thailand and at the commune disputes resolution commitees in Cambodia stress the need for parties to find their own solution. Follow up: Facilitators that we've met in Egypt, Cambodia and Rwanda have reported that a follow up with both parties is highly effective for compliance. Involving Authority: Indonesian facilitators related to KBH Lampung use village heads, the lowest form of government authority, as witnesses to agreements. They also sometimes ask the village head to draft the agreement based on the parties decisions. This involvement of authority helps stimulate the parties to agree. Use of Witnesses: In Indonesia, Bangladesh, Mali and Egypt, facilitators that we have met reported that they use witnesses to help ensure compliance with agreements. If witnesses see the parties sign the agreement, it is harder for the parties to back out later as many people in the community will know that they have gone back on a promise. A celebration: After the two disputing parties come to an agreement of paying and accepting the compensation, the mediator (Krak Shrok) will ask all involved in the conflict resolution, as well as other villagers, to join in a party celebrating the end of the dispute. Brao Ethnicity: Documentation of Customary Rules. UNDP, Cambodia 2010
The Paralegal Practice Manual – The Legal Aid Forum, Rwanda
Handbook mediation - UNDP Cambodia 2009
De daad bij het woord. Het naleven van rechterlijke uitspraken en schikkingsafspraken. E.J.J. Eshuis, WODC 2009
Tyler and Huo, Trust in Law, 2001
Legal empowerment and customary law in Rwanda: report of a pilot project concerning community level dispute resolution and women's land rights, Muriel Veldman and Marco Lankhorst International Development Law Organization 2011
Compliance factors are identified from literature including: Strength of supporters of the agreement; Exploration of the problem; monitoring and feedback mechanisms; Familiarity with agreement and level of agreement.
Gurses, A. P. M., J. A.; Ozok, A. A.; Xiao, Y.; Owens, S.; Pronovost, P. J. (2010). "Using an interdisciplinary approach to identify factors that afffect clinicians' compliance with evidence-based guidelines." Critical Care Medicine 38 (Supplement, Infection Control in the Intensive Care Unit): s282-s291.
Enforcement agencies increasingly use disclosure as a regulatory instrument to promote compliance and govern societal risks: data about companies are disclosed to expose their level of compliance. This innovative instrument, called the 'pillory', differs from traditional instruments such as financial incentives ('the carrot'), legal sanctions ('the stick') and government communication ('the sermon'). The 'pillory' aims to inform and activate the stakeholder environments of companies and, in so doing, encourage them to push for better compliance. Disclosure affects the behavior of 'small offenders', who care about their reputations, more than that of 'large offenders', who only react to harsh measures
Disclosure and compliance: The 'pillory' as an innovative regulatory instrument. A J. Meijer, V. Homburg Information Polity - Innovation and ICT in Public Policy - papers from the European Group for Public Administration Conference 2008
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)