The process of mediation/arbitration can be flexible and there are many other forms of the process such as the Peace Circles, and Jirga Councils. In a country as diverse as Canada, it is important for legal professionals to expose themselves to alternate methods of dispute resolution around the world. It will help us be creative and flexible with our practices, and in the end ensure the client is dealt with in manner they are comfortable with.
Jirga councils replace the function of courts in rural and tribal areas of Afghanistan and Pakistan. The Jirga is usually made of community elders that are respected and have some legal understanding of matters. They include religious leaders, local notables, and mediation specialist. The Jirga hears from the two sides along with any witnesses and other parties involved in the matter. The council initially acts as Mediators but they have a lot of power, and if things are not progressing they can start to act as Arbitrators. The Jirga’s conclusion is usually binding with fulfillment tied to each party’s honor and respect in the community.
Benefits of the method include:
- Process and decision reasoning is often quite transparent
- Focus on reconciliation and community relationships
- Economically, culturally and religiously sensitive to small remote communities
- Community decision ensures community enforcement where other authority is not present
- Facilitates community building
Challenges:
- Lack of remuneration in some cases for council members may lead to influence from other factors
- Managing influence of wealth and power of one party is difficult
- Male dominated council often puts women in weaker position. This has led to creation of Sisters’ Jirga in some areas.
- Lack of trained facilitators can sometimes result in inhumane sentences awarded to people.
- Lack of an appeal process limits people from seeking another opinion on the matter or when they feel the process was not fair. However, parties sometimes do abandon the decision at some cost.
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