ATTACHMENT 12 - DIAGNOSTIC OF COMMUNITY-BASED ALTERNATIVE DISPUTE RESOLUTION.pdf

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MARCH 2012

This publication was produced for review by the United States Agency for International Development. It was prepared by Management Sciences for Development, Inc. and subcontractor, Partners for Democratic Change, with Partners Colombia as the implementing partner.

ACCESS TO JUSTICE PROGRAM

DIAGNOSTIC OF COMMUNITY-BASED

ALTERNATIVE DISPUTE RESOLUTION

ACCESS TO JUSTICE

PROGRAM

DIAGNOSTIC OF COMMUNITY-BASED

ALTERNATIVE DISPUTE RESOLUTION

DISCLAIMER

The author’s views expressed in this publication do not necessarily reflect the views of the United States Agency for International Development or the United States Government.

Acknowledgements

This report, on the Diagnostic of Community-Based Alternative Dispute Resolution, was prepared by

Partners Colombia under sub-contract to Management Sciences for Development Inc.

Partners Colombia Diagnostic Team

Technical Team

Germán Vallejo Almeida, Senior

Researcher

Gustavo Salazar Arbelaez, Coordinator

Natalia Peñaranda, Senior Researcher

Jaidivi Nuñez Varon, Senior Researcher

Carlos Alberto Bula, Financial Consultant

Henry Martin-Edwin Girón, Statistician

Olga Cecilia Pinilla, Research Advisor

Victoria Gaitan Pinilla, Assistant Researcher

Field Professionals

Yaneidy Bayona Tarazona

Diego León Espinosa

Ana Maria Ospina

Jesús Mariano Ospina

Juan Carlos Tobón

Aura Estela Arbeláez

Regional Team

Paola Alejandra Martinez (Bajo Cauca)

Patricia Elena Ruiz (Montes de María y

Barranquilla)

Ivan Dario Benavides (Nariño)

Edna Reynet Hurtado (Meta)

MSD Review, Editing and Graphics

Cesar Castillo

Ana Daza

Javier Said

Julian Trujillo

Michael Willis

Partners Executives

Julia Roig, President

Lelia Mooney, Director

Jessica Varat, Manager

List of Acronyms

ADR Alternative Dispute Resolution

NCESP National Council on Economic and Social Policy

CSDI Colombia Strategic Development Initiative

NGOs Nongovernmental Organizations

SCJ Superior Council of the Judiciary

JH Justice House

OADR Office of Alternative Dispute Resolution

MJL Ministry of Justice and Law (formerly the Ministry of Interior and Justice)

RLBJS Rodrigo Lara Bonilla Judicial School

MICE Equity Conciliation Implementation Framework (MICE, by its acronym in Spanish)

NDP National Department of Planning

PACE Equity Conciliation Service Points

SDAU Statistical Development and Analysis Unit

SIJE National System of Incentives for Equity Justice

Table of Contents

Executive Summary

Chapter I: Scope and methodology of study

Context and Scope of Study

Equity Conciliation

Justices of the Peace

Study Framework

Characteristics and Methodology of Study

Chapter II: Programmatic Findings

Institutional Roles and Geographic Coverage

Need for Integrated Policies and Coordination at the National Level

Regulatory Framework for the Programs

Implementation of the Equity Conciliation Program

Implementation of the Justices of the Peace Program

Program Monitoring

Sustainability of the Programs

User Survey Results

Socio-demographic Profile of the Users

Means of Access

Typology of Conflicts

Efficacy of the Programs

User Satisfaction and Ease of Access

Chapter III: Recommendations

Construction of a Coordination Platform for ADR in Colombia

Gender-differentiated Implementation and Development of ADR

Design of a Sustainable Framework for the Promotion and Implementation of Equity

Conciliation and Justice of the Peace Programs at the Local Level

Expanding Data Collection and Communication Systems for Equity Justice

Strengthen the Toolbox for Education and Training Programs

Enhanced Selection of Operators and Training Qualifications

LIST OF ANNEXES

Annex 1. User Survey Format and Technical Specifications

Annex 2. Survey Result Tables

Annex 3. Systematization of Expert, Operator, and Institutional Representative Interviews

Annex 4. Interview Format for Experts and Government Authorities

Annex 5. Interview Format for Operators

Annex 6. Summary of Document-based Research

Annex 7. Accreditation Model for Equity Conciliation Programs

Annex 8. ADR Geographic Coverage Information

Annex 9. ADR Indicators

Annex 10. Methodology of Indicators

Annex 11. User Survey Methodology

Annex 12. Case Studies

Annex 13. Interview List

This report was produced by Management Sciences for Development and Partners for Democratic Change with Partners Colombia as implementing partner under the Access to Justice Program, Contract No. AID-

DFD-I-00-04-00175, for review by the U.S. Agency for International Development (USAID).

Diagnostic of Community-Based Alternative Dispute Resolution 1

Executive Summary

INTRODUCTION

The USAID Access to Justice Program (AJP) is currently being implemented by Management

Sciences for Development (MSD) and sub-contractor Partners for Democratic Change (with local affiliate Partners-Colombia). The objectives of the program are to strengthen and improve access to formal and informal justice services and reduce impunity for citizens residing in rural communities heavily affected by violence. These communities are located in consolidation zones designated as high priority under the Colombia Strategic Development Initiative (CSDI).

USAID has made substantial investments in the development of alternative dispute resolution

(ADR) in Colombia over the past twelve years, focusing predominantly on community justice mechanisms in order to increase access to justice, expand the State’s presence in rural communities, and support a culture of peaceful conflict resolution. The legal framework for ADR in Colombia is robust, with mechanisms ranging from arbitration and pre-judicial conciliation to more community-based programs such as equity conciliation, community mediation, and justices of the peace. The Government of Colombia (GOC) has remained very supportive of the use and promotion of ADR mechanisms. Local governments, the Ministry of Justice and Law (MJL),1 and the Superior Council of the Judiciary (SCJ) have proactively implemented a variety of programs throughout the country, in collaboration with academic institutions, NGOs, and the private sector.

Colombia has substantial technical capacity and political will upon which to capitalize in the area of

ADR. However, there have been serious challenges in realizing the full potential of these important mechanisms. The primary problems stem from an historic overemphasis on the generation of new operators with insufficient follow-up after their initial training. Challenges have also emerged from the lack of a coordinated ADR policy governing support and oversight roles and responsibilities of Colombian institutions at the national and local levels, particularly in the community justice sector. Additionally, the range of ADR mechanisms available has caused confusion among users and operators, as well as competition between organizations and institutions. Furthermore, there are serious philosophical and political disagreements within the

ADR field concerning whether or not these mechanisms serve predominantly as auxiliary means of offering judicial services outside the formal justice system or as vehicles for the empowerment of community leaders, the transformation of community conflicts, and the promotion of social inclusion and democratic values.

Component 4 of the AJP implements a strategy to specifically address the root policy issues that have limited the impact of community ADR in Colombia. It utilizes the two-year project period to consolidate the vast amount of human and technical resources within the ADR community in

1 Since the execution of the study, the Ministry of Interior and Justice has been divided into two ministries, the Ministry of Interior and the Ministry of Justice and Law. The Ministry responsible for ADR is now the

Ministry of Justice and Law (MJL).

Diagnostic of Community-Based Alternative Dispute Resolution 2 order to improve coordination, construct effective systems, offer support to existing operators, and ensure the presence of ADR in the CSDI’s target municipalities.

Following USAID’s significant investment in ADR, the impact of the resultant increase in the number of trained community justice operators remains unclear. ADR is one of the most studied access to justice issues in Colombia, however the majority of those studies focus on questions surrounding the operators: how many have been trained; how many are active; how many cases do they process and resolve; what are their capacities; and what level of institutional support do they receive at the local level. These studies have provided insufficient analysis of program impact on users of ADR services. The present report summarizes Partners-Colombia’s work in

Component 4, Activity 1, Diagnostic of Community-Based ADR Mechanisms in Colombia. It provides concrete data on the results achieved by community justice operators from the perspective of

ADR users and also proposes reforms to improve the performance and sustainability of these programs. It is important to note that the study focused exclusively on the equity conciliation and justice of the peace programs.

The evaluators solicited input from a diverse array of individuals within the field of community

ADR including interviews and surveys with users, operators, experts, and public officials.

The methodology designed to carry out this evaluation consisted of:

Qualitative methods: literature review, focus groups, and individual interviews with subject matter experts, academics, public officials, and community ADR operators.

Quantitative methods: a survey assessing user familiarity with community ADR, satisfaction with program results, typology of conflicts addressed, and other relevant factors.

This diagnostic of community-based ADR was carried out from September 2010 to January 2012 for USAID/Colombia by MSD and its sub-contractor, Partners for Democratic Change, with

Partners Colombia as the implementing partner. The diagnostic was based on ADR recommendations from the Assessment of USAID/Colombia’s Justice Reform and Modernization

Program on March 12, 2010 stating that “any significant expansion of training or support for specific ADR activities/entities should await preliminary studies and diagnostics to determine needs, utility, and impact of various types of dispute resolution mechanisms, with specific attention to CSDI regions.”2

FINDINGS

Programmatic and Organizational Findings

Community ADR has advanced in its geographic coverage throughout the country.

Approximately 78% of the country has access to equity conciliation services and 37% has access to justices of the peace.

2 See: Assessment of USAID/Colombia’s Justice Reform and Modernization Program: USAID Guttmann, Michele and Hammergren, Linn. March 12, 2010. http://pdf.usaid.gov/pdf_docs/PDACR349.pdf http://pdf.usaid.gov/pdf_docs/PDACR349.pdf

Diagnostic of Community-Based Alternative Dispute Resolution 3

Undeniable progress has been made by the MJL in bringing coherence and consistency to the implementation of equity conciliation processes. However, there is a lack of mechanisms to track and measure usage and impact of these programs. The MJL also lacks reliable statistics on the number of people nominated and trained as equity conciliators, though statistics are kept on the number of certified conciliators. From 2007-2011, 2,220 individuals were appointed as conciliators with 5,839 total conciliators registered.

There are still some weaknesses in operator training programs. The training curriculum should reduce its emphasis on judicial and legal considerations in favor of a stronger focus on the dynamics of conflict and practical strategies for conflict intervention.

MJL budgetary allocations for the office responsible for community ADR are insufficient.

Local budgetary support is also insufficient and there is no requirement that local authorities guarantee necessary resources for community ADR.

There is no adequate system of measuring program results at the local level.

Word of mouth is the most common means of raising awareness of the programs. 46.5% of users learned of ADR programs by word of mouth. While this is not to be discouraged, the finding implies that institutional outreach and referral networks need to be strengthened.

User Information

56.6% of community ADR users surveyed are women.

Community ADR users overwhelmingly belong to the least privileged social and economic strata.

88.4% of surveyed ADR users reached an agreement through ADR.

75.6% of users reported that the agreement reached during their consultation had been fulfilled. 17.2% indicated that it had not been fulfilled. 7.74% reported that the agreement had been partially fulfilled.

Of the 993 users surveyed, 146 used a justice of the peace, 835 used an equity conciliator, and 12 used both.

63% of cases have an essentially economic character, 13% are disputes between neighbors, 12% are related to family issues, and 12% are related to other issues.

When users were asked, "How satisfied were you with the service provided by the justice of the peace or equity conciliator?" 85.9% reported being satisfied or very satisfied.

When asked to rate the services provided by the justice of the peace or equity conciliators on a scale from 1 to 10, 51.7% of respondents rated the service between 9 and 10, signaling high levels of satisfaction. 24.8% rated the service between 8 and 9. 9.8% rated the service between 7 and 8.

RECOMMENDATIONS

Construct a platform for coordination of community ADR mechanisms in Colombia:

o Create forums for discussion and interaction between the MJL, SCJ, regional and local governments, implementing organizations, active operators, and community

ADR users.

Diagnostic of Community-Based Alternative Dispute Resolution 4 o Assert potential of these programs through a National Council on Social and

Economic Policy (NCESP) document that gives ADR mechanisms the stature and priority they deserve in the public agenda at national, departmental, and municipal levels.

Employ gender-differentiated implementation and development practices for ADR:

o Include women's civic and community organizations as key actors in the implementation of equity conciliation at the local level.

o Provide gender perspective training to equity conciliators and justices of the peace.

Design a sustainability strategy for the promotion and implementation of equity conciliation and justice of the peace programs at the local level:

o Eliminate dependence on NGO’s and international donors by increasing the budget for the National Equity Conciliation Program and requiring local governments to provide reserve budgetary resources for the programs.

o Designate local institutions responsible for providing on-going coordination of operators, ensuring an effective referral network, and facilitating on-going community outreach and education for operators.

Commit to permanent operation of the System of Information and Communication of

Equity Justice.

o Make permanent the operation of an information and communication system originating in the pilot project call center platform developed in 2008 and 2009.

Conduct a participatory and coordinated revision of the rules governing community ADR, including: Articles 116 and 247 of the Colombian Constitution; Decree 2279/1989; Act

23/1991; Act 497/1999; Act 640/2001; Act 1395/2010.

o Focus on appropriate selection of operators and training qualifications.

o Establish and implement an accreditation system for organizations that implement equity conciliation and justice of the peace programs.

o Require a minimum number of experienced, former justices of the peace and equity conciliators as teachers or instructors in training programs.

o Take steps to ensure that no elected justice of the peace exercise his or her functions without having received training.

o Design a process of continuing training for justices of the peace and equity conciliators.

Diagnostic of Community-Based Alternative Dispute Resolution 5

Diagnostic of Community-Based Alternative Dispute Resolution 6

CHAPTER I: SCOPE AND METHODOLOGY

OF STUDY

CONTEXT AND SCOPE OF STUDY

Article 116 of the Colombian Constitution of 1991 allows for individuals to administer justice as conciliators or arbitrators chosen by parties seeking to resolve their conflicts. Article 247 allows for the legal creation of justices of the peace in order to use equity principles in the resolution of individual and community disputes. Compared to other Latin American countries, Colombia is very advanced in its development of a legal framework and authorization for numerous ADR mechanisms, including arbitration, conciliation in law, conciliation in equity, mediation, and justices of the peace. (Law 23 of 1991, Law 446 of 1998 and Law 497 of 1999.)

Some view the large number of mechanisms as an advantage due to the range of options afforded to users in particular circumstances. Others, however, criticize the dispersion of resources and confusion generated in communities by the many ADR offerings that have only minor and nuanced differences. Within this context, USAID has been offering support since 2000 for the expansion of community ADR, in particular equity conciliation, as a means of increasing access to justice and promoting a culture of peaceful conflict resolution. From 2000 to 2006, the focus of USAID’s assistance was on ensuring that community ADR services were provided within the majority of the

Justice Houses, which were largely found in urban areas. As the Colombia Strategic Development

Initiative (CSDI) shifted focus to the consolidation regions, USAID’s community ADR expansion efforts have recently focused on more rural areas. The following report provides a review of the equity conciliation and justice of the peace programs.

Equity Conciliation: Because of its European legal history, Colombia’s system continues to make the distinction between law and equity. Conciliation as a general term implies the use of a third party neutral to assist parties in the resolution of a conflict. The equity aspect indicates that the basis for the discussion should come from community norms and accepted customs.

Legally, equity conciliators are to be recognized leaders, over the age of 18, who are endorsed by a community organization to participate in a specific conciliation training program. The training received is currently approved by the MJL and the participants are then certified by the highest judicial entity in their district. The types of cases that are appropriate for equity conciliation are defined by law in civil, commercial, labor, family, agrarian, and penal codes. There is no restriction on the amount in controversy that an equity conciliator may help to resolve. Conciliated agreements are enforceable in court in the same manner as a judicial sentence. Equity conciliators are legally prohibited from charging for their services.

The MJL has the legal responsibility to oversee the National Equity Conciliation Program, however the certifying judicial body has disciplinary authority over the individual conciliators.

Diagnostic of Community-Based Alternative Dispute Resolution 7

Justices of the Peace: Justices of the peace have their historical origin in Peru, where recognized community leaders have been resolving conflicts for generations. It is debated in Colombia whether justices of the peace fall within the ADR framework, or comprise a special jurisdiction.

In practice, however, this alternative justice mechanism is highly associated with the field of ADR. 3

Justices of the peace are community leaders, over the age of 18, who are democratically elected for a period of five years to help parties resolve their conflicts based in equity. They are legally required to conciliate as a first course of action. However, if the parties do not achieve a resolution on their own, the justice of the peace may decide the case for them. The resulting conciliated agreement or the “sentence” is as enforceable as any formal judicial decision. The types of cases that justices of the peace may hear are the same as an equity conciliator, however there is a legal limit on the monetary amount in controversy that they may resolve, set at 200 times the current monthly minimum wage of the subject in the dispute.

This special jurisdiction originally incorporated an appellate process, as well, through the election of justices of reconsideration. Parties who are not satisfied with a decision of a Justice of the

Peace may ask for a rehearing by a justice of reconsideration. The determination made at this stage is considered final and there are no further possibilities for appeal. Both types of justices of the peace are also legally prohibited from charging for their services.

There are various national entities that have legal responsibilities in this area. The Ministry of

Justice is charged with general community outreach, the national electoral body has oversight of the elections process, and the Superior Judicial Council is responsible for training and monitoring the justices of the peace. This dispersion of responsibilities has generated difficulties in the implementation and management of national initiatives.

Many previous evaluations of community ADR in Colombia have concentrated on the number and quality of operators trained and the number of cases conciliated; this study, however, seeks to capture the impact of those cases by focusing on the perceptions of the users and the implementation of the conciliated agreements.4 The report also seeks to address issues of how national policies can support the sustainability and effectiveness of these volunteer equity conciliators and justices of the peace.

STUDY FRAMEWORK

This study was implemented in five phases. Phase I included assessments of:

i) General coverage and effectiveness of ADR programs and their level of acceptance and user satisfaction;

3 See: MJL, Guía para aplicar la justicia en equidad. Actualización 2006. Bogotá D.C., 2006 and Martínez Lavid, Isabel Cristina. Capítulo II: La Justicia de Paz En publicación: Isabel Cristina Martínez Lavid. Jueces de paz:

gestores de convivencia y justicia comunitaria : IPC, Instituto Popular de Capacitación, Medellín, Colombia.

Serie Cartillas IPC: . 2003. [Citado: 9/11/2011]. Available in:

http://bibliotecavirtual.clacso.org.ar/ar/libros/colombia/ipc/jueces.pdf 4 See: USAID Component Evaluation: (1) Sustainability Strategy: Associations of Equity Conciliators (2)

Impact Assessment of Equity Conciliation in Colombia. Roig, Julia. 2005.

http://bibliotecavirtual.clacso.org.ar/ar/libros/colombia/ipc/jueces.pdf

Diagnostic of Community-Based Alternative Dispute Resolution 8

ii) Institutional roles and responsibilities, as legally defined, along with their practical scope and the effects of existing overlaps or gaps in coverage;

iii) Support for ADR by local authorities and levels of progress toward a local system of justice;

iv) Analysis of Justice House program experiences and their successful relationship with

ADR programs;

v) Current national coverage of ADR, accounting for distinctions between certified/elected vs. active operators;

vi) Dynamics of decision-making regarding the type of mechanisms implemented in a given municipality;

vii) Quality of services and abilities of operators in selected municipalities;

viii) Adequacy of existing training programs, certification requirements, and continuing education;

ix) Numbers of cases and agreements, level of user satisfaction, and degree of compliance with agreements;

Phase II consisted of data compilation, studies, and statistics, including the results of focus groups with members of the National Association of Equity Facilitators. Phase III analyzed interviews with key institutions and experts in order to conceptualize a political reform project for ADR in

Colombia. Phase IV documented field work with users of these mechanisms in twelve municipalities located in six departments. Phase V consisted of finalizing this diagnostic report and providing a set of recommendations for strengthening ADR public policy.

Through the foregoing framework, this study combines primary and secondary source data analysis: it compiles, analyzes and synthesizes existing studies while carrying out surveys and consultations with users, experts, operators, and policy-makers.

CHARACTERISTICS AND METHODOLOGY OF THE STUDY

This study is based on a mixed methodological model that incorporates a variety of sources of information and methods of data collection. In addition to the use of primary sources, the study surveyed a wide range of secondary sources by carefully conducting literature reviews of relevant documents from academics, donors, the GOC and existing research on ADR in Colombia. A rich body of primary source data was also developed through focus groups, interviews, and surveys with subject matter experts, academics, public officials, ADR operators, and users. Interview and focus group data is systematized and presented in Annex 3, while further information concerning the survey methodology and results is included in Annexes 1 and 2.

The diagnostic was carried out between September 2010 and January 2012. Field interviews with representatives from academia and other relevant institutions took place between November

2010 and February 2011. The survey was applied in March and April 2011 and the secondary source data was collected between September 2010 and February 2011. In order not to focus exclusively on institutional and “expert” perspectives, the study made an effort to include input

Diagnostic of Community-Based Alternative Dispute Resolution 9 from the actual operators themselves. In total, 38 equity conciliators and 13 justices of the peace were interviewed.

For the purposes of this study, a user was identified as an individual who had attempted to reach a settlement before an equity conciliator or justice of the peace. The survey was based on a non-random sample of 993 users. Though logistical considerations prevented a truly random sampling of users, the survey nonetheless provides important insights into users’ behavior and thinking.

Users were randomly selected from three different sources: a) records of existing equity conciliation agreements and Points of Attention for Equity Conciliation (PACE, for its Spanish initials); b) records of decisions rendered by justices of the peace; and c) references from Justice

House officials in municipalities where ADR information was available.

The study’s geographic scope and distribution covered 19 cities and municipalities, chosen according to the following criteria: municipalities with extensive geographical coverage, municipalities located in conflict-affected zones, municipalities with perceived “success stories” in the implementation of community ADR, and municipalities that registered a high presence of community justice operators. Further details concerning the geographical coverage of the survey can be found in the following table:

CHAPTER II: PROGRAMMATIC FINDINGS

GEOGRAPHIC DISTRIBUTION OF

USERS SURVEYED

SELECTED

CITIES AND

MUNICIPALITIES

Aguazul

Barranquilla

Bello

Bogotá D.C.

Cáceres

Caucasia

El Bagre

La Macarena

Medellín (sub-communities of Villa del Socorro and

Robledo)

Nechí

Pasto

Santa Fé de Antioquia

Soacha

Tarazá

Tumaco

Villavicencio

Vistahermosa

Yopal

Zaragoza

Diagnostic of Community-Based Alternative Dispute Resolution 10

This chapter discusses institutional roles and responsibilities, geographic coverage, weaknesses in the regulatory framework, degree of local support, and issues of program sustainability.

INSTITUTIONAL ROLES AND GEOGRAPHIC COVERAGE

The MJL formally adopted the current National Program of Equity Justice in 2006, including a requirement that every municipality in the country have an equity conciliation program.5 This policy demonstrates the GOC’s political will to support community ADR mechanisms. As a result, USAID, the European Union, the World Bank, and other bilateral donors have funded an array of new equity conciliation programs throughout the country. However, one of the consequences of this policy has been increasing political pressure to train and certify new equity conciliators while neglecting the provision of support for the sustainability of existing operators. In 2010, the MJL reported that more than 5,700 certified equity conciliators were active in more than 230 municipalities.6 Unfortunately, these impressive statistics do not mean that all of those certified are actively conciliating cases in their community.

The sustainability of equity conciliation has been elusive for many years. The history of the program demonstrates the risk of focusing on the expansion in the number of conciliators trained as a policy goal. The first expansion effort emerged directly from the Ministry of Justice and the

PNR (Plan Nacional de Rehabilitación) between 1993 and 1995 followed by a second effort spear-headed by municipal and departmental governments between 1998 and 1999. Based on a diagnostic conducted by USAID in 2001, of the 1200 conciliators certified during those early efforts, less than 300 were identified as still active.7 Unfortunately, there is no permanent mechanism for gathering information on whether certified conciliators are actually functioning within their community despite the fact that, as with any program that relies on volunteers, a certain amount of attrition can be expected.

The MJL’s National Program of Equity Justice is charged with the design, development and evaluation of various initiatives related to the peaceful resolution of conflicts, upholding “equity” as the guiding principle within all programs. As geographic coverage has been increased, MJL has also sought to support the sustainability, quality, and efficiency of programs throughout the country through initiatives to support equity conciliators within communities, civic organizations, and municipal and departmental governments. Those efforts will be further discussed below.

Implementation of the justice of the peace program is wholly dependent on the political will of those municipal administrations that hold the legal authority to call elections for justice of the peace positions. In practice, the decision to hold such elections often depends on civil society organization or international donor advocacy efforts directed at municipal officials.

5http://www.mij.gov.co/econtent/newsdetailmore.asp?id=2192&idcompany=2&idmenucategory=226 6 Ministry of Justice and Law, Report to Congress, May 30, 2010.

http://www.mij.gov.co/econtent/library/documents/DocNewsNo1590DocumentNo4619.PDF 7 USAID Component Evaluation: (1) Sustainability Strategy: Associations of Equity Conciliators (2) Impact

Assessment of Equity Conciliation in Colombia. Roig, Julia. 2005.

http://www.mij.gov.co/econtent/newsdetailmore.asp?id=2192&idcompany=2&idmenucategory=226

Diagnostic of Community-Based Alternative Dispute Resolution 11

According to figures reported by the MJL as of 2010, there are approximately 811 justices of the peace and 352 justices of reconsideration in Colombia.8 The following graph presents a more comprehensive picture of ADR’s departmental coverage:

A further breakdown of municipal coverage can be found in Annex 8.

Need for Integrated Policies and Coordination at the National Level

ADR mechanisms can be separated into two categories: those that are primarily used by the private sector or the middle and upper classes with the assistance of attorneys, e.g., arbitration and conciliation in law, and those that are tools for peaceful dispute resolution within communities, e.g., mediation, equity conciliation and justices of the peace. Because these community-based tools are grounded in equity, they have been categorized as “community justice,” “equity justice,” or “informal justice” mechanisms.9

The distinctions within these categorizations represent an important conceptual understanding of the role and scope of these mechanisms within the institutions responsible for promoting and sustaining them. The concept of community justice in Colombia is regarded as an important recognition of historical, autonomous, cultural, and local methods of resolving conflicts within communities. The rhetoric surrounding equity conciliation and justice of the peace programs often asserts that the State is acknowledging, within a legal framework, already-existing forms of dispute resolution that are primarily meant to help strengthen the sense of community and

8 According to the Supreme Judicial Council of Colombia, in 2006 there were 1,401 justices of peace and reconsideration. In 2007 there were 1,418 justices; in 2008 there were 1,101; and in 2009 there were 1,217.

“Informe al Congreso de la República 2009-2010”, March, 2010. Further information concerning geographic coverage of justices of the peace can be found here:

http://www.cej.org.co/publicaciones/justiciometros/2590-distribucion-de-jueces-de-paz-en-colombia.

9 It is noteworthy that the division responsible for these programs within the MJL recently changed its name from the “Access to Justice” division to the “Informal Justice” division in 2011.

JUSTICES OF PEACE AND

RECONSIDERATION

Justices of Peace and

Reconsideration http://www.cej.org.co/publicaciones/justiciometros/2590-distribucion-de-jueces-de-paz-en-colombia

Diagnostic of Community-Based Alternative Dispute Resolution 12

“democratize” the administration of justice. However, there is little common understanding of how equity conciliation and justice of the peace programs are integrated within a unified local system of justice. Leaders within the judicial branch largely consider equity conciliation as an executive branch program solely for the purposes of peaceful co-existence, as opposed to the justice of the peace program, which has been incorporated as an integral part of the judicial system by the SCJ.

Because of these tensions, there has been no unifying national policy on whether equity conciliators and justices of the peace actually fit within the community justice framework, or whether they are simply ADR mechanisms falling within the rubric of informal justice. This would imply that these mechanisms should both be seen as State-created programs to provide access to justice and resolve conflicts within a government-wide system of justice. A national ADR program is largely accepted as a perfectly legitimate and worthwhile state function and enjoys wide popular and institutional support in Colombia, but the lack of theoretical policy clarification of the roles of the two operators has restricted coordination between branches of government, their implementing partners, and the operators themselves.

National Level Coordination: There have been several efforts to support increased coordination and policy integration at the national level between the MJL and SCJ, as well as with the broader field of practitioners. In 2000, the SCJ created the National Coordination Committee for Justices of the Peace, though it is no longer active. After a number of meetings, an Inter-

Sectoral Commission created by the MJL by Decree 413 of 2002 to provide a platform for coordination was disbanded. In September 2004, USAID supported the creation of a new national

Commission for Equity Justice (which was never officially established by the Ministry), sponsored various regional workshops to gather input on how to coordinate efforts between equity conciliators and justices of the peace, and held a national conference to discuss a new public policy for equity justice in Colombia.10 In 2006, the USAID Justice Project implemented by Florida

International University also engaged in several coordination activities in this sector, training justices of the peace, promoting institutional stability, setting up a call center for data collection, and helping the National Association of Justices of the Peace to publish a 2008 report documenting its history and work.11

Unfortunately, these efforts have taken place within the context of larger battles between these two branches of government as Colombia seeks to reform its judicial system. This has affected the two institutions’ ability to coordinate. Nonetheless, promising legislative developments have occurred in the past year.

Bill 159 of 2011, designed to reform the national justice of the peace program, is currently under consideration in the National Congress. The bill, sponsored by Senator Carlos Enrique Soto

Jaramillo, will issue new regulations for the program. Currently, the bill is being debated within

10 See: ADR Component 2001-2004, Programa de Fortalecimiento y Acceso a la Justicia, USAID-Colombia.

Julia Roig.

11 See: http://pdf.usaid.gov/pdf_docs/PDACR349.pdf.

http://pdf.usaid.gov/pdf_docs/PDACR349.pdf

Diagnostic of Community-Based Alternative Dispute Resolution 13

Congress and presented to justices of peace throughout the country.12 This Senate-led reform initiative has been welcomed by those justices of the peace who felt overlooked during the MJL’s initial design of the program. Principal components of the law include:

Election of magistrates on merit. The legislation proposes a new mechanism of election through open competition, comparable to the method established for entry into the judiciary;

Coordination between equity conciliators and magistrates. The legislation requires justices of the peace to have served as equity conciliators. This ensures that candidates for justice of the peace will have established a career within the equity justice field and will possess the requisite training, experience, and commitment to community service;

Lack of second petitions in equity courts. Due to the voluntary and discrete nature of petitions brought before justices of the peace, there will be no second petition relating to sentences issued by the program. This means that the justices of reconsideration would be eliminated and only the justice of the peace that heard the original case can review it if the parties do not agree with the sentences issued by the judge.

Remuneration. If the parties fail to reach settlement and the judge is forced to issue a sentence, the parties must pay certain fees set by the sentence in accordance with the rates determined by the SCJ.

Location for the exercise of duties. Justices of the peace will use the Centers for

Coexistence and the Justice Houses, among other places provided by municipalities and counties to the justices of the peace.

With respect to legislation concerning equity conciliation, the MJL confirmed that there is currently no bill before Congress. Confidentially, we were informed that the MJL is preparing a unified bill addressing both conciliation in law and conciliation in equity, though this is still in the process of being written.

Regulatory Framework for Community ADR Programs

Confusion arises from the overlapping competencies of equity conciliators and justices of peace. In practice, both justices of the peace and equity conciliators almost always address the same issues, generating confusion among users, diffusion of resources, regulatory incoherence, and conflicts between officials. Furthermore, legal frameworks have failed to recognize the community-oriented nature of the programs. Of particular concern is Act 1395 of 2010. The Act’s inclusion of equity conciliation in admissibility requirements risks formalizing and “legalizing” community practices.

12 One of three debates has already been held in Congress and regional consultations are planned for

Manizales, Pereira, and Bogotá as of February 2012. Progress on the reform bill is unlikely to occur until after March 2012 when Congress is back in session and even then, the focus will likely be on the justice reform, according to MJL officials.

Diagnostic of Community-Based Alternative Dispute Resolution 14

Despite these challenges, recent years have seen progress in the implementation of equity conciliation and justice of the peace programs. Progress has been made since 1998 through further elaboration of ADR regulations, development of the Equity Conciliation Implementation

Framework, numerous agreements on the part of SCJ, increasing allocation of public resources, involvement of international cooperation and academia, increase in networks of operators through the creation of the associations of justices of the peace and conciliators, and growing use of the programs on the part of some local and departmental governments demonstrate how much progress has been made.

Implementation of the Equity Conciliation Program

One of the significant advances made by the MJL, in supporting different implementing partners and standardizing the quality of new equity conciliation programs, was the creation of the Equity

Conciliation Implementation Framework (MICE, for its acronym in Spanish). The MICE is a set of guidelines and strategies proposed by the MJL to coordinate the implementation of equity conciliation at the municipal, departmental and national levels.

Specifically, the MICE is intended to provide a "roadmap" for responding to the needs of various sectors of the population and proposes a series of strategic phases for local implementing organizations:

Phase 1: Activities for the diagnosis of conflict.

Phase 2: Activities for the development of awareness, coordination and application.

Phase 3: Activities for training, evaluation and appointment of equity conciliators.

Phase 4: Activities associated with the operation of equity conciliation.

Through these phases, the MICE provides guidelines for consolidating equity conciliation in municipalities and localities throughout the country.13 There is broad acceptance and appreciation for the guidance articulated within the MICE, however, the implementation of these requirements has not been uniformly applied.

Quality and Profile of Equity Conciliators: The MICE requires a rigorous selection process of candidates for the program, taking into account their personal profile, skills, and leadership within the community. The exact method of identifying and inviting leaders within the community has been a challenge for many programs. Organizations under pressure to certify a particular number of conciliators within strict timeframes often hold “open calls” for potential participants in the training program. In addition, there is often a lack of diversity among selected participants due to failures of outreach to such populations as artisan groups, women’s networks, and agricultural groups, among others. The lack of attention to the selection of true community leaders has hurt the credibility of the equity conciliator program in the eyes of both potential users and other community institutions.

13 Source: Ministry of Interior and Justice. Framework for Implementation of Equity Conciliation. Bogotá, D.C. March, 2009.

Diagnostic of Community-Based Alternative Dispute Resolution 15

Training Considerations for Equity Conciliators: Although the MICE establishes the proposed pedagogical approach, specific curriculum, and training activities and evaluation process for implementing partners, MJL staff reported that the stated requirements are not applied uniformly by all trainers, and the MJL has a difficult time monitoring the quality of the training programs.14 In response, the MJL has been organizing workshops on the training process for equity conciliators in

Centers of Attention for Equity Conciliation throughout the country.

The Centers of Attention for Equity Conciliation are facilities envisioned in phase 4 of the MICE.

The locations of these centers are established in consultation with local equity conciliators and are usually located in city halls, Justice Houses, and Coexistence Centers. The PACE are traditionally supported by the municipality, which facilitates the participation of public servants and provides physical spaces for their use. PACE coordinators are usually volunteer equity conciliators who live near the PACE.15

Implementation of the Justices of the Peace Program

As established by the 1991 Constitution, justices of the peace are considered a special jurisdiction within the judicial branch, similar to the recognized jurisdiction of indigenous law. However, it was not until the passage of Act 497 of 1999, that the regulatory framework and operations of the justice of the peace program were fully established. Unlike equity conciliation, there is no standardized method for the implementation of the justice of the peace program. The process of electing judges varies according to local contexts and capacities.

Quality and Profile of Justices of the Peace: The popular election of justices of the peace has not been an ideal means of selecting community leaders to perform this function. According to expert interviews, one of the most serious issues affecting the community-based nature of this

ADR mechanism is the local political patronage that permeates the process of electing justices of the peace. As a result, there are numerous justices of the peace who lack the legitimacy and technical skills necessary for the execution of their duties.16 In Bogotá, in the last election for justices of the peace, 135 justices were elected with approximately 67,000 votes when at least

200,000 votes were expected. Further, at least 10% of the candidates were campaigning for seats as councilors in the localities in which they were elected. In elections in the districts of Paz in

Fontibón and Bosa in Bogotá, justices of the peace were elected with just 4 and 6 votes, respectively.17

Training Considerations for Justices of the Peace: The SCJ applies its own system for training justices of the peace according to the requirements established in Law 497 of 1999. While equity conciliators are first trained and then certified to exercise their duties as conciliators, justices of the peace are legally able to begin hearing cases upon election, even though they often receive

14 Meeting Minutes from the MICE Committee (Actas 2 and 3) 15 Corporación Razón Pública. Marco de Implementación para la Conciliación en Equidad. 2006.

16 See: Annex 3 17 For further information on the conditions of the justice of the peace program in Bogotá, see: “Descifrando la Justicia de Paz en Bogotá.” Pp. 55-58 Corporación Excelencia en la Justicia.

Diagnostic of Community-Based Alternative Dispute Resolution 16 components of their training from the SCJ several months after being elected.18 The Judicial

School faces the very real difficulty of having no control over how and when many justices of the peace are elected, as this falls within the purview of local municipal officials. Still, the school is responsible for training those justices upon election. This has proven an untenable system for planning purposes and allocation of resources.

In addition, the theoretical debate about where justices of the peace fall within the judicial system is apparent within the focus of the SCJ’s training program. Since the SCJ perceives justices of the peace as a formal component of the judicial branch (as opposed to community justice operators), the training program has been highly focused on the legal aspects of their work and lacks in-depth discussion of the dynamics of conflict, conflict resolution tools, and how to recognize and incorporate community practices.

Program Monitoring

There has been much focus on the need for a national monitoring system to provide quality control over the work of these community ADR operators and to inform national policy decisions with accurate information on their functioning. A centralized system within the national institutions has proven difficult given the community-based and voluntary nature of these programs.

Disciplinary System: Apart from improving the training programs offered to these community

ADR operators, a process for disciplinary supervision is also needed. Frequent, questionable lapses on the part of some operators have compromised the work of those truly committed to the responsible execution of their duties. A study conducted in Bogotá in 2007 indicated that the most frequent complaints against some justices of the peace were related to weak application of equity principles, abuse of authority, coercion to reach an agreement, lack of knowledge and competency to perform duties, and charging for services, among others.19 The Bogotá study reported that more complaints and disciplinary processes were filed against justices of the peace than equity conciliators. In 2010, two complaints against equity conciliators were registered with one organization while 97 complaints and administrative processes were registered against justices of the peace.20

Unfortunately, the few egregious cases that warrant disciplinary action have drawn too much attention to the institutional function of controlling the work of these community volunteers to the detriment of an institutional culture at the national level of supporting them with the tools and accompaniment to be successful.

18 An example of this is in the city of Bogotá: the Justices of the Peace and Reconsideration had their training from the Rodrigo Lara Bonilla Judicial School, six months after their appointment.

19 District Secretary of Government--Superior Judicial Council. Diagnostic of the Special Peace Jurisdiction.

Convention 567 of 2007. Project PNUD/COL/416577270- "Systematization of the working groups to generate a Public Policy of Justices of the Peace in the City." Consultancy advanced by Jaidivi Núñez Varón.

District Government Secretariat. Bogotá, 2007.

20 As reported by the Department of Human Rights and Support to Justice of the District Secretary.

Diagnostic of Community-Based Alternative Dispute Resolution 17

Program Statistics. Neither the MJL nor the SCJ have precise information on their community

ADR programs. There is no system or mechanism in place to capture data such as: number of currently active equity conciliators or justices of the peace; number or types of cases heard;

resolutions reached in each case; level of compliance with agreements; satisfaction of users;

whether the formal justice system is upholding the conciliated agreements; number and type of conciliated cases that later enter the formal justice system due to failure to reach an agreement, lack of adherence to an agreement, or any other reason.

This lack of information limits the GOC’s ability to assess the impact of these…