APPLICATION OF ADR

Preconditions need to Face Challenges

It would be unwise to say that application of ADR shall be perfect in every society regardless of the conditions prevailing in such societies. Thus, some preconditions need to be set up in the society to have the optimal result from application of ADR in such societies or in States. Existence of those factors in the society shall help the community face the challenges which might be faced time to time. Some of those preconditions have been discussed below:

(i)  Adequate Political Support:

Without sufficient political support it would be nearly impossible to implement ADR system in Criminal Justice Administration. There are many reasons for which it is needed. To establish jurisdiction, for example, legislative support should be secured. Beside this, it is not possible to go ahead without bureaucratic protection from resource cuts. In addition financial support is vital and it cannot be obtained without having a strong political support. Another advantage of having political support is that it shall facilitate building up popular acceptance and use.  ADR system can only overcome opposition of vested interests if the system has got sufficient political support.

(ii) Supportive Cultural Norms:

For ADR programs to be successful, the cultural norms of the community should support the concept of informal dispute settlement. Even in countries where the judicial system is discredited and where reforms are unlikely in theshort term, ADR programs can provide a reasonable degree of justice if a tradition of informal dispute resolution exists.

Many studies cite the importance of these traditions as a background condition for success. Such favorable traditional and cultural norms are difficult to build if they do not exist, and should be considered carefully as a prerequisite background condition. The absence of cultural norms which support informal third party dispute resolution should not automatically eliminate consideration of ADR programs. During the years ofCommunist Party control in the Ukraine, the only third party with authority to decide disputes was the local party leader. All other forms of traditional dispute resolution or informal village authority were squeezed out of the system. When the Communist Party structure collapsed, there were no traditional dispute resolution mechanisms on which to build. Experience with the authoritarian party dispute resolution system has made the population reluctant to submit disputes to a third party. In addition, the concept of voluntary mediation, in which the mediator has no authority to force a settlement, is foreign. If the program design is able to incorporate an effective way of building those norms in the long-run and operating despite their absence in the short-run, then it may be worth investing in ADR.

(iii) Adequate Human Resources:

Adequate numbers of well-qualified and well-supervised ADR staff are essential to program success. The quality of ADR staff is much more important to participant satisfaction with ADR outcomes than ADR’s cost, the time it takes, or its specific procedures. Several factors affect the quality of the ADR staff.

  1. a) Honest and Respected Personnel

A large pool of educated, honest, and respected personnel is not always available, but it may be critical for success. The strong sense of community service among these mediators has been important, and may not be present in all countries. Mediators must have a minimum level of education. However, the respect of the local community is often more important to success than substantive knowledge.

  1. b) Training

Good training, and sufficient resources to maintain such training on an on-going basis, has been important to create a cadre of qualified and respected mediators. Many successful programs, like those in South Africa, Sri Lanka, Bangladesh, and Argentina, have had good training programs as an integral part of the design.

3) Literacy

A high rate of literacy has also been important to the Mediation Board success. The high literacy rate and an active press help to hold public officials to a higher standard of performance than in other developing countries. In addition, a literate public is easier to reach and educate about mediation.

(iv) Financial Resources:

Compared with formal court processes, ADR programs are inexpensive for the state as well as the disputants. Many programs operate with volunteer mediators, and few have burdensome requirements for documentation or administration. Nevertheless, in some developing countries, governments have notallocated enough financial resources to pay for program administration, and/or have not trained enough volunteer mediators to make mediation a reasonably small time commitment for volunteers.Although the system has been found successful at resolving increasing numbers of cases, the increasing burdens on the mediators are leading to a concern that mediators may quit and that new mediators may be difficult to find. In addition, some mediators may become susceptible to corruption unless they are paid, or at least their costs are covered. In some instances where the government is unwilling or unable to give sufficient resources, it can provide the framework for the programs to become self-sustaining.

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