2008] INDIGENOUS DISPUTE RESOLUTION 225 for Understanding Indigenous Dispute Resolution Processes and Western ADR

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UNDERSTANDING INDIGENOUS DISPUTERESOLUTION PROCESSES AND WESTERNALTERNATIVE DISPUTE RESOLUTION

CULTIVATING CULTURALLY APPROPRIATEMETHODS IN LIEU OF LITIGATION Carlo Osi*

T

ABLE OF

C

ONTENTS

1.I

NTRODUCTION

........................................1641.1Focus of the Paper................................167

2.I

NDIGENOUS

C

OMMUNITIES

: W

EAK

, I

SOLATED

,V

ULNERABLE

..........................................1692.1Right to Participate...............................1752.2Adherence to Indigenously Appropriate DisputeResolution.........................................177

3.P

LACING THE

I

NTERNATIONAL

P

ROBLEM IN

C

ONTEXT

..............................................1783.1Cultural Appropriation and Indigeneity...........1783.2TRIPS and CBD..................................1803.3Patents and Traditional Knowledge...............1843.3.1WIPO’s Role in Bridging the Gap..........184

4.I

NTELLECTUAL

P

ROPERTY

R

IGHTS

R

EGIMES

:P

ROPOSED

S

OLUTIONS AND THEIR

C

HALLENGES

......185

5.I

NDIGENOUS

D

ISPUTE

R

ESOLUTION

P

ROCESSES AND

W

ESTERN

ADR S

YSTEMS

..............................1935.1Modes of Dispute Resolution.....................1935.1.1Indigenous Dispute Resolution..............1945.1.2Western ADR Systems......................1995.1.3Indigenized Western ADR..................2035.2Rwandan Gacaca Courts and WIPO’s ArbitrationMediation Center..................................2075.3Formation of Quasi-Judicial Indigenized ADRBodies.............................................210

*LL.M. (University of Pennsylvania Law School, 2008); Certificate in Business (WhartonSchool, 2008); LL.M. (Kyushu University, 2006); LL.B./J.D. (University of the Philippines,2002); Executive Editor, East Asia Law Review (University of Pennsylvania); Commercial Liti-gator, Angara Abello Law Firm (Philippines); Contributor/Features Writer, Philippine Daily In-quirer (Inquirer.net).

163

164

CARDOZOJ.OFCONFLICTRESOLUTION

[Vol.10:1635.4Effectiveness......................................2135.5Universal Disadvantages of Non-CourtResolution Mechanisms...........................217

6.U

PHOLDING

A

LTERNATIVE

D

ISPUTE

R

ESOLUTIONWHILE

A

VOIDING

L

ITIGATION

.........................2176.1Antecedents of Indigenous Litigation.............2176.2General Disincentives of Lawyers in HandlingIndigenous Claims.................................2196.3Indigenous Peoples’ Natural Aversion to “Alien”Litigation..........................................2206.4The Few Advantages of Litigating IndigenousClaims.............................................2256.5State Funding Subsidy.............................228

7.C

ONCLUSION

...........................................229

1.I

NTRODUCTION

Alternative Dispute Resolution (ADR) has been touted asone of the greatest developments of the modern legal system. In-stead of engaging in protracted and fraught-laden litigation, formerlitigants can simply take the more expedient, cheaper, creative, lesscomplicated, less cumbersome, more participative and more effec-tive route of dispute resolution — the “alternative” form. Thesealternatives are more commonly known as mediation, conciliation,negotiation, and arbitration, among others. Erstwhile litigants canpursue, in case of court-annexed ADR mechanisms, these popularprocedures in the hope of settling the case while it is being tried.The presiding judge often stays the trial and judgment until suchtime that the parties have emerged from an unsuccessful ADR.Parties freely negotiate with each other, but upon failure to reach asettlement, the litigants have the right to assert for a trial

de novo

— a trial as if no court-annexed arbitration ever took place. Pri-vate tribunals or rent-a-judge is also allowed, the decision of whichcan be entered as an appealable judgment. Other less commonforms of ADR include early neutral evaluation, Mediation-Recom-mendation, Mediation-Arbitration, Mini-Trial before expert neu-tral facilitators and Summary Jury Trial before advisory juries.

1

1

Consortium for Appropriate Dispute Resolution (CADRE),

ADR Options: A Spectrumof Processes

(undated), http://www.directionservice.org/cadre/other.cfm (last visited Jan. 11,2008).

2008]

INDIGENOUS DISPUTE RESOLUTION

165The basic yet preeminent question surrounding ADR is this:what is it an alternative to?

2

The answer, particularly in the West-ern hemisphere, is that it is the alternative to the often tedious,strictly formal legal proceedings in court that is presided over by astate-appointed judge, with counsel representing the parties, and,in some cases or jurisdictions, the presence of juries. The problemwith this alternative approach is that there are numerous culturesand communities in other parts of world, even within NorthAmerica and the Western hemisphere, where litigation is not thenorm and is actually the alternative. The norms for these peopleare their own community dispute resolution procedures. Hence,the word “alternative” in ADR seems to be a misnomer as appliedto some cultures, be they situated in the developed or still develop-ing world.As a result of this, some have advocated that the letter “A” inADR should instead stand for “Appropriate,”

3

since the mostsuited or apt dispute resolution mechanism will differ from nationto nation, culture to culture, and community to community. De-spite the overwhelming and sustained popularity of ADR with the“Alternative” connotation in the world today, and despite its rela-tive success in resolving various types of disputes, there are severalcritiques of it. Whether the rights of the parties are not fully pro-tected or the fact that its facilitators may not understand the con-text and culture of both the dispute itself and the parties, ADR isnot and has never been the perfect solution to conflicts worldwide.ADR techniques have also been largely based on “co-existential justice,” even if, for example, “[t]his form of justice has . . . alwaysbeen part of African and Asian traditions where conciliatory solu-tions were seen to be to the advantage of all and often as a

sine quanon

for survival.”

4

Entering public consciousness in the 1970s, ADR has similarlybeen criticized as attempting to be something new and novel when,in fact, ADR-like forms of dispute resolution have been practicedby peoples and communities for centuries. The older forms of dis-pute resolution, particularly those practiced by the Indigenous or

2

See

Steven H. Goldberg,

“Wait a minute. This is where I came in.” A trial lawyer’s search for alternative dispute resolution

(1997),

available at

http://findarticles.com/p/articles/mi_qa3736/is_199701/ai_n8752883.

3

See

Consortium for Appropriate Dispute Resolution (CADRE),

supra

note 1, at 2.

4

SAFLII,

South African Law Commission – Issue Paper 8 (Project 94): Alternative DisputeResolution – Chapter 2: The Problem

(undated),

available at

http://www.saflii.org/za/other/zalc/ip/8/8-CHAPTER-2.html.

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