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Journal of South Pacific Law |
ALTERNATIVE DISPUTE RESOLUTION IN PACIFIC ISLAND COUNTRIES[1]
GRAHAM HASSALL[2]
“Dispute Resolution” takes place in each and every culture. Its
modern forms are so expansive that Goldberg, Green and
Sander refer to a
“disputing universe” and suggest taxonomy of procedures based on the
“primary processes”
of negotiation, mediation, and adjudication. We
understand from the “dispute resolution continuum” that practices
range
from those in which the parties retain full control of the process, to
those in which the parties yield control to one or more third
parties. In each
jurisdiction the extent of formal participation in dispute process by state
agencies varies in accordance with tradition,
culture, and need. In the past
several decades formal dispute mechanisms, including judicial, have become open
to a range of additional
practices.
Most Pacific societies are familiar with
the ideas of “alternative dispute resolution” without necessarily
being familiar
with the term. As Vanuatu Chief Justice Lunabek informed a
conference on conflict resolution held in Vila in 2000:
“ADR is not a new concept to Pacific Island jurisdictions and, in particular, to Vanuatu. It is, in fact, consistent with traditional methods of dispute resolution that predated the introduction of the formalised system of justice”[3]
Anthropological investigation has contributed considerable information on such elements of customary dispute resolution as scope, structure and process, duration, visibility, location, desired outcomes, reasoning, remedies, standing (to participate), and patterns of communication.[4] Traditional systems of customary law often incorporated a sliding scale for conflict resolution: different approaches were applied to conflicts inside the village and the kin-group, in distinction to conflicts with others: the former were solved through ceremonies (including sorcery), compensation and exchange; the latter, through endemic warfare.[5] For many groups, moreover, the exercise is one of conflict management rather than resolution:
...no victory was every complete, no defeat ever final.[6]
The resolution of conflict is described as being "deeply embedded in the culture" in many societies, so that its structures remained unobtrusive. Black, writing of the Tobi of Micronesia, reports:
On Tobi, disputes were generally acknowledged and managed in an extremely indirect fashion. The expression of overt conflict, or even its direct acknowledgement, was resisted because of the Tobian truism that to do so would bring on disaster by endangering the essential web of relationships of mutual support (particularly in the exchange of labour and food) which bound everyone to everyone else. Tobian techniques of conflict management, as might be expected in light of the foregoing, also tended to be very inexplicit and to operate in rather indirect and subtle ways.[7]
Among the Dou Donggo, similarly,
There is a strong feeling that disputes, conflicts, and misbehaviours are matters for the community to deal with internally. There is a strong disposition to avoid washing dirty linen in public, and a general reluctance to involve authorities from outside the community.[8]
Constraints on conflict in Papua New Guinea, particularly, include the use
of reciprocity, a principle of major significance in Melanesia,
both
substantively (items) and symbolically (rituals). This includes gift exchanges
between groups (e.g. pigs, bride-price, and now
money and beer) as well as
aggressive retaliation. Such reciprocity provides appropriately-scaled balancing
mechanisms that do militate
against excessive or cumulative imbalance and
violence which could negate survival
viability.[9]
Legal
anthropological investigation has reported, also, on the effectiveness of court
systems. Chalmers and Paliwala point out that
the form of law and legal
processes are much less rigid in many customary societies in comparison with
Western law.[10] Rules of law are
often stated in the form of argument. The forms of dispute settlement give much
greater emphasis to what the parties
wish - in particular the need to come to
amicable settlement of disputes between people and groups.
It is also the
case, on the other hand, that there are different levels of awareness of
alternative dispute resolution procedures
within jurisdiction across the Pacific
region. An initial inquiry suggests that in some smaller jurisdictions, such as
Nauru for
instance, there is little or no awareness of ADR
practices.[11] In Tonga there are
no common mediation or arbitration practices or mechanisms, and only on rare
occasions have arbitration provisions
been included commercial
contracts.[12]
There are, on
the other hand, several Pacific jurisdictions - notably Fiji, Solomon Islands,
Papua New Guinea and Vanuatu - in which
ADR processes are known to the courts,
and to other state agencies charged with upholding the rule of law. Labour
officers throughout
the region have statutory obligations to try to resolve
disputes through mediation.[13] The
Fiji Human Rights Commission has conducted conciliation sessions to address
issues of discrimination.
Scholarship on dispute resolution in Pacific
societies is still discussing the ways in which traditional forms of conflict
resolution
remain valid and effective in the present day. There has been a very
active grass-roots mediation movement in Papua New Guinea and
Bougainville.[14] It is interesting
to note, however, the similarity in fundamental approaches to mediation
presented in the work of, for example,
the mediation and restorative justice
training offered at Divine Word University in Madang, Papua New Guinea, and the
work of Christopher
Moore.[15] The
program at Divine Word University, for instance, offers a nine-step mediation
process:
This “mediation path” is very similar to that taught
world-wide, and the cultural content of the mediation process is
evidently woven
into the manner in which the process is carried out. The “Talanoa”
interactive dialogue process being
advocated by Sitiveni Halapua, Director of
the East West Centre’s Pacific Islands Development Program, seeks a less
formalised
and possibly more ‘intuitive’ approach. It has been used
in Fiji, Tonga, and Hawaii to bring leaders together in an
effort to solve
political and public policy disputes. To date there has been no assessment,
however, of the effectiveness of the
approach in resolving the difficult issues
facing the parties, at least in Fiji. In Tonga, on the other hand, Dr.
Halapua’s
facilitation is credited with resolving a dispute between public
servants and the government that had lasted 44 days and thwarted
the hopes of
other mediation
efforts.[16]
Mediation and ADR
can be regarded as one facet of the larger projects ‘peace-building’
and ‘conflict reduction/prevention’,
which are gaining attention at
global and regional levels, with a follow-on effect for the Pacific Island
countries. There are,
for instance, the “Global Project for the
Prevention of Armed Conflict” organised by the European Centre for
Conflict
Prevention (2003-2005), and a 2005 “Workshop on Peace-Building
and Conflict Prevention in the Pacific Islands” organized
jointly by the
Pacific Islands Forum Secretariat and the United Nations Department of Political
Affairs (Nadi, 25-27 April 2005).
There are now numerous
‘conflict monitoring projects’ around the globe: International
crisis group; Conciliation Resources,
and others. Human Rights organizations,
particularly Amnesty International, have contributed to alerting the
international community
of Pacific
conflicts.[17] UNIFEM is developing
“early warning” capacities, beginning with Solomon
Islands.[18] Of the NGOs, perhaps
Conciliation Resources is most familiar with Pacific conflicts. It has published
a comprehensive study of the
Bougainville conflict, and is a partner to the
Citizens’ Constitutional Forum. The Pacific Concerns Resource Centre has
recently
undertaken a feasibility study for the establishment of a
“Pacific Conflict Transformation
Network.”[19]
In early 2005
the Peace and Conflict Studies program at USP surveyed the extent of current
practices in ADR in Pacific states, in
preparation for the convening of the 3rd
Asia Pacific Mediation Forum in Fiji in 2006. The findings of this survey,
covering ADR
and mediation training; court annexed and non-court annexed
mediation; and provision for the use of ADR in legislation, are provided
in
point-form below.
ADR/MEDIATION TRAINING
Pacific
University of the South Pacific
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URL: http://www.paclii.org/journals/JSPL/2005/17.html