From Noise to Music: The Potential of the Multi-Door Courthouse Model to Advance Systemic Inclusion and Participation as a Foundation for Sustainable Rule of Law in Latin America
Mariana D. Hernandez-Crespo
University of St. Thomas - School of Law (Minnesota)
Journal of Dispute Resolution, 2012
U of St. Thomas Legal Studies Research Paper No. 11-32
In most countries of Latin America, where disenfranchised majorities are the norm, riots and revolutions fuel chronic instability, which, in many cases, leads to weak governments and short-lived national constitutions. In this context, fostering systemic inclusion and citizen participation is essential to build a foundation for what I call a more sustainable rule of law. Reform measures such as improving the judiciary, providing access to justice through alternative or appropriate dispute resolution (ADR) and ensuring transparent elections have proven to be insufficient to achieve this goal. For rule of law to be sustainable, it is essential for citizens to have participatory experiences in private conflict resolution, and to engage in collaborative governance, which includes public conflict resolution, as well as the other stages in the policy continuum – deliberative democracy and collaborative public management. This experience of participatory decision making could begin to challenge the reigning caudillo (political “strongman”) mentality, in which one citizen acts as the sole decision maker.
In order to establish this foundation for a more sustainable rule of law, it is not sufficient to mainly utilize ADR as a means of providing access to justice for the poor. The implementation of ADR would have to be broadened to foster conflict resolution capacities for all citizens, and promote systemic inclusion and participation. If private conflict resolution were consistent with procedural justice values, it could create the social capital necessary for rule of law. If collaborative governance, through public conflict resolution and the design and implementation of policy, were to empower, engage, and ultimately include the traditionally marginalized, this majority would have a greater stake in the system and would therefore be more likely to uphold it.
Tapping into the potential of the multi-door courthouse model in the form of casas de justicia could be one of the steps necessary to unleash the potential of citizens, promoting systemic inclusion and participation in several ways. First, the expanded casas de justicia could offer a framework that would encompass all citizens, making the invisible marginalized communities and practices visible, and integrating them into best mainstream practices. The enforcement of rights could also be strengthened, by extending the reach of the judicial system. Second, while the adapted model would remain a vehicle for delivery of integrated dispute resolution services, it would transform the role of conflict assessors, enabling them to identify the root causes of systemic issues and empower citizens to select the most appropriate forum for the resolution of their disputes, thus fostering self-determination, enhancing decision making capacity, and, when facilitative processes are chosen, enhancing problem solving capacity as well. The root cause identification, through the inclusion of an organizational ombuds function, could provide the starting point for setting up an agenda for collaborative governance efforts, in order to address systemic issues. Third, casas de justicia are strategically located to bring members of the community together and address the public issues that affect them, as well as to participate in the development of public policy that impacts the community. In this regard, the capacities that citizens develop in the context of private conflict resolution could eventually be applied to interactions in the public realm, making their participation in public conflict resolution and other stages of collaborative governance in the policy continuum, including the design and implementation of policy, more effective.
Finally, this Article articulates the need for this or any proposal aimed at promoting ADR in the region to be developed and owned by the stakeholders; to this end, it argues that Dispute System Design (DSD) can provide a participatory framework in guiding the development and ongoing evaluation of conflict resolution systems. By engaging in local DSD efforts, stakeholders can adapt and diverge from this proposal to address their specific contextual reality and enhance citizen participation through private conflict management and resolution, as well as through experiences of collaborative governance that meet the needs of each country.
Number of Pages in PDF File: 85
Keywords: Alternative Dispute Resolution, ADR, private conflict resolution, public conflict resolution, deliberative democracy, collaborative public management, collaborative governance, multi-door courthouse, inclusion, integration, Dispute System Design, DSD, capacity building, participation, value creation
Date posted: November 8, 2011 ; Last revised: November 13, 2011