MAAPSI Discussion: Improving Access to Justice through Mediation at Community Level What is mediation? Mediation is a voluntary process of resolving disputes whereby a mediator helps disputants find a settlement which is acceptable and workable. Mediation allows people to decide how they would like to settle their problem and tries to help them reconcile. Village Mediators (VM) will not make any judgment or take a decision. The mediation process and the outcome belong to the disputants. It is important to understand three things about mediation: • It is voluntary. This means that disputants cannot be forced to agree to anything; • It is confidential. No one will talk about what anyone says or does in the mediation. A Village Mediators cannot be called as a witness in any other proceedings; • It is neutral. The Village Mediators will not take a decision or make a judgment. Their interest is only that disputants reach a settlement which is acceptable and workable and achieves reconciliation. In addition, mediation is: • informal • participatory • local • free of charge. What is Proposed Village Mediation Programme of MAAPSI? The Village Mediation Programme (VMP) will be a model of mediation of MAAPSI Bangladesh. The VMP introduces a village-based diversion and mediation scheme that can assist poor and vulnerable people to access justice in civil and some minor criminal cases. The Programme is inspired by the Madaripur Mediation Model in Bangladesh and other village-based mediation programmes around the world. The VMP provides mediation services to the community, by the community. MAAPSI Staff will train village-based mediators in their local language how to manage disputes in their communities. Community people will take action as per the training method. As in many other countries, the legal system of Bangladesh is formal, complex, urban-based, time consuming and expensive. Therefore poor people, particularly the illiterate and the disadvantaged living in rural areas, cannot enforce their own rights and suffer injustice in silence. The purpose of the programme is to support existing dispute resolution mechanisms and to provide means for diverting suitable cases away from the formal justice system. In this way, the VMP will help to reduce case backlogs in the courts, divert offenders away from detention where appropriate and thus reduce overcrowding in prisons, provide quick settlement of matters so that they do not escalate, enhance access to justice for the poor and vulnerable, and contribute to better harmony in the communities. The Village Mediators are supported and given supplementary training on an ongoing basis by MAAPSI Staff and Trainers accordingly. Sensitization is a key part of VMP activity: villagers will be assisted in understanding that the VMP is available to them in their villages and how to access it; traditional leaders and the formal justice system will come to understand and appreciate how the VMP works to support them. The VMP is being implemented by Village Mediators who live within the communities they are assisting. VMs have all been carefully selected and trained and have attributes that win the confidence and trust of the people in their villages. Why people are denied access to justice? Access to formal state justice through the courts is guaranteed in the Constitution of Bangladesh. Access to justice is one of our most basic human rights so why it that so many people is do not access the formal system? Some of the reasons are: • they live a long distance from the nearest court • the costs of taking a case to court are high • people do not know how to get adequate legal representation • if they do, they cannot afford it, particularly if they live in rural areas where there are no lawyers so they have to pay a lot of money for the lawyers transport and travelling time • the huge backlog of cases in the court system which leads to long delays and adjournments. This means time away from home and work • lack of information about the law • lack of understanding of court procedures • language barriers • social taboos and stigma surrounding certain crimes • the publicity of their case • fear of a complex criminal justice system What are the benefits of mediation over other dispute resolution processes? Mediation benefits villagers who cannot access the formal justice system or who want to avoid a difficult formal process: • Mediation through the Village Mediation Programme is available locally, immediately and free of charge • The mediators are known to the villagers, speak the same language, understand their needs and will work with the disputants in a familiar, informal environment • Mediation respects local principles, cultural norms and values • Mediation works to support the existing local dispute resolution mechanisms • Mediation is participatory and empowering. The Mediator does not impose a decision on the disputants. Disputants will agree their own terms of settlement which will be written down and signed by them as well as by the Mediators and anyone else present. The signed Mediation Settlement is a legally binding contract • Mediation is non-confrontational and non-judgmental • Mediation is confidential. Nothing said or done in the mediation will be repeated. The Mediators cannot be called as witnesses by the court • Mediation seeks to restore, improve and protect community relationships Does mediation undermine or replace the formal justice system? No. The VMP will work closely with formal institutions to ensure that the formal and informal work together and complement each other. For example, if a dispute cannot be resolved through mediation, the parties can still take the matter to the traditional leaders or the court. Current court procedure in Bangladesh encourages disputants to resolve their disputes outside the court through mediation so cases are often referred by the Magistrates Court to the VMP. The Police also refer cases to the VMP. The VMP will report to the court or to the police if the matter is settled or not. In this way, there is no risk of impunity. How do Village Mediators have the competence to deal with disputes at this level? Village Mediators will carry official identity cards. They will be closely supervised by the MAAPASI VMP programme to ensure that basic human rights principles are respected and a high level of professionalism is maintained in mediating disputes. The VMs initial training is followed by refresher trainings and regular interaction with their trainers and supervisors who will provide support wherever needed. Can all disputes be resolved through mediation? No. Firstly, all parties involved in a dispute have to agree to go to mediation. If one of them refuses, then it is not possible to mediate. Secondly, some disputes need to be handled in other ways. The Village Mediators will advise parties if their dispute is suitable for resolution through mediation or if they should go elsewhere. Some minor offences can be handled through mediation if both the victim and the offender agree, such as minor theft or common assault. Major criminal offences are not suitable for mediation, such as serious human rights violations, rape and murder. Are human rights protected in mediation? The Village Mediators are trained in human rights. If necessary, they will suggest a third mediator who has more experience of legal and human rights matters. Do women access mediation with the VMP? Lacks of awareness about the formal justice system, illiteracy, cultural practices and fear of discrimination have deterred women from accessing the formal justice system. Mediation gives women an opportunity to take their dispute to a locally-based programme that respects and understands their concerns, and will help them to resolve disputes in a way that is both non-discriminatory and comprehensible. Women have also expressed that they like the fact that mediation is confidential. Is the Programme monitored and evaluated? To ensure adequate support to the Village Mediators, the VMP has designed a system of supervision, monitoring, mentoring and evaluation. In addition, the Village Mediators are supported by ‘Village Mediation Groups’, who help the VMs complete Case Records of every matter brought to them. PASI VMP trainers and paralegals ensure monitoring and maintenance of standards, as well as adherence to human rights principles and the law. They will also act as the principle link between the local community and the formal justice system. The outcome of all matters referred from the Police is also reported to the Police so as to avoid impunity on the part of anyone seeking to avoid the process. MEDIATION through the VMP … Mediation empowers a community to deal with its own problems in a culturally appropriate manner Economic losses, such as court costs and loss of earnings while away from work to attend court are a thing of the past, because mediation under the VMP is free of charge Disputants participate actively in the process. Ultimately, they must agree on a solution or there is no settlement and they must take the matter elsewhere. Interaction in the mediation process raises community awareness of an interest in human rights, and leads to people questioning discriminatory practices and traditions Adversaries can take their case to court if they are not satisfied with the mediation procedure or are unable to agree to a Mediation Settlement Testimonies of disputants will not be judged but are respected. Impartial mediators abide by a strict VMP Code of Conduct. They will ensure that disputants reach a settlement of their own accord, that they are not influenced either by any outside party or by the mediators. Outcomes reached through mediation seek true reconciliation of the disputing parties, which means a Realistic, Effective, Acceptable and Lasting (REAL) solution Non-discriminatory procedures apply the principle of equality, and promote the involvement of women in securing their own rights and participating actively in community matters Partners The VMP will be implemented by MAAPSI in Bangladesh The model is inspired by the Madaripur Mediation Model from Bangladesh and other village-based mediation programmes around the world. The VMP seeks close coordination and collaboration with other agencies working with access to justice, such as the Traditional Authorities, community leaders, the Judiciary, government and civil society organizations.
Posted on: Sun, 02 Nov 2014 09:06:17 +0000