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International: Why Further Development Of ADR In Latin America Makes Sense

From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes.

We came across a very interesting article entitled “Why Further Development of ADR in Latin America Makes Sense: The Venezuelan Model,” by Jose Alberto Ramirez Leon, 2 Journal of Dispute Resolution 399 (2005). The article provides an overview of the problems with the Venezuelan system of justice, ADR developments in the country, obstacles for further development of ADR in Venezuela, and proposals to overcome those obstacles.

Here is an excerpt:

B. How ADR Would Help Improve the Performance of the Venezuelan Judiciary
Successful experiences in different developed and developing countries suggest that ADR programs can:support and complement court reform, by-pass ineffective and discredited courts, increase popular satisfaction with dispute resolution, increase access to justice for disadvantaged groups, reduce delay in the resolution of disputes, reduce the cost of resolving disputes, increase civic engagement and create public processes to facilitate economic restructuring and other social change, help reduce the level of tension and conflict in a community and manage disputes and conflicts that may directly impair development initiatives.

1. ADR Can Support and Complement Court Reform
As was described in Section II, Venezuelan courts suffer from extensive backlogs and time delays. ADR programs can be created as an option within the judicial system, either associated with the courts as a way of managing existing caseloads, or separate from the courts to provide dispute resolution for conflicts not well served by the courts. ¡§Alleviation of backlogs is itself an absolute benefit. The interaction between ADR and courts, however, must be explicitly designed.¡¨ ADR programs can provide streamlined procedures to accelerate case disposition.

2. ADR Can Help Bypass Discredited Courts
When corruption, lack of independence and ineffectiveness combine to place the public administered court system on the lowest levels of trust, the implementation of ADR programs offer alternative forums for the resolution of disputes. In addition, complex or technical disputes can be handled more effectively by specialized private ADR systems.

3. ADR Can Increase Satisfaction of Disputants With Outcomes
Foreign experiences show that when high costs, long delays, and limited access to justice undermine satisfaction with existing judicial processes, the accessibility, low cost, and party control of the process that ADR programs offer generally lead to high satisfaction.

4. ADR Programs Can Increase Access to Justice for Disadvantaged Groups
Wanis-St. John asserts that ¡§[e]conomic marginalization and illiteracy often prevent people from using court systems.¡¨ In a country where more than 50% of the population lives in poverty, it is not surprising that a high percentage of the population has no access to the court system whatsoever. Scholars suggest that ¡§three-fourths of Venezuela’s inmates have never had their day in court.¡¨ ADR programs can help improve this critical situation by reducing both the cost to parties and the formality of the legal process, which may intimidate and discourage access to the court system for the lower class of the population.

5. ADR Programs Can Reduce Delay in the Resolution of Disputes
Judicial procedures are complex, elaborate and full of formal rules. This, added to the courts¡¦ insufficient resources to keep up with case backlogs, results in extensive delays for the resolution of disputes in the public administered court system. The relative informality and simplicity of ADR procedures can significantly reduce dispute resolution delay, and indirectly reduce court backlog by redirecting cases that would otherwise go to court.

6. ADR Programs Can Reduce the Cost of Resolving Disputes
The requirement of legal representation, the time delays in resolution, and the implicit cost that corruption adds to the judicial process makes litigation highly expensive for parties in Venezuela. ADR programs administered in foreign jurisdictions have reduced the cost of resolving disputes for both the disputants and the public administered court system. ADR programs do not necessarily require representation by lawyers, are usually time effective and are less vulnerable to corruption than the court system. The factors contribute to decreasing costs, in terms of both time and money, of resolving disputes.

7. ADR Programs Can Increase Civic Engagement and Facilitate Other Social Change
The development of community-based programs is particularly helpful for this goal. Included in this category are the justice of the peace programs that have successfully been implemented in the past years by several municipalities. With these programs communities elect their own justices who decide the issues presented before them based on equity. Community mediation programs are particularly helpful in building skills for consensual approaches to problem-solving and local policy development.

8. ADR Programs Can Reduce the Level of Tension and Prevent Conflict in a Community
The atmosphere of social conflict and political intolerance that has led to bloody confrontations during the last few years in Venezuela can be addressed through the implementation of ADR programs. Successful efforts to manage social tension through ADR, including ethnic and class conflict, can be seen in several other countries. These efforts include projects in Estonia (Carter Center), Hungary, Slovakia, (Project on Ethnic Relations), and the former Yugoslavia (MercyCorps, Balkans Peace Project). Venezuela has also experienced the benefits of international help based on ADR programs through the Organization of American States (OAS) facilitation efforts in the political crisis of 2003.

Read more here.


Victoria VanBuren

Victoria VanBuren holds a B.B.A. in Finance from Southern Methodist University and a J.D. from the University of Texas School of Law.  She focuses on intellectual property law and arbitration. Known as a "worker bee," she is an active legal blogger and is currently pursuing a degree in computer science.… MORE >

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