Whose alternative, Whose justice? | Alternative Dispute Resolution | Violence

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The report explores how Alternative Dispute Resolution Responses are doing more harm than good to women experiencing Intimate partner violence.
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  An Alternative to theAlternative Alternative dispute resolution responses are found tocause more harm than good to women experiencingintimate partner violence. Tina Musuya, Executive Director of CEDOVIP, and Stella Mukasa, Regional Director AfricaInternational Center for Research on Women, are pictured in Dar-el Salaam holding a hard copyof their study. CEDOVIP in partnership with the International Center for Research on women and BeyondBorders have published a study that examines the justice and efficacy of alternative dispute resolution(ADR) responses for women seeking justice after experiencing violence in intimate relationships.The study “Whose justice, Whose Alternatives; Locating Women’s Voices and Agency inAlternative Dispute Resolutions Responses to Intimate Partner Violence” focuses mainly the mostcommon forms of ADR; mediation and arbitration. Mediation is a form of alternative disputeresolution which is a method of resolving disputes that serves as an alternative to court proceedings.ADR usually involves a group or an individual who facilitates a discussion between the partiesinvolved in the reported incident. The process ultimately leads to an agreement and concession,determined by the parties themselves. ADR follows a step-by-step process that can typically besummed up in four steps. The first step, initial report and information-gathering, consists of someone bringing the incident to the facilitator’s attention. The summons and hearing occur after the facilitator accepts the case and decides to pursue a resolution. At this point, the facilitator sets adate for the hearing and summons those involved in the incident. The facilitators hear testimoniesat the hearings. The decision/punishment should conclude with an agreed-upon decision which mayinvolve a punishment or an order for reparations. Finally, enforcement may occur if the facilitator and parties decide on a method to guarantee that the agreed upon terms are met. This would beenforced by the ADR authority or the community.  The study especially considered women’s voice and agency in ADR processes to determine if these practices are helpful to the victims or biased towards their perpetrators. Through variousdocuments and interviews, the authors examined ADR responses to intimate partner violence inthe Global South, their prioritization of women survivors’ voices and agency, and examples of ADR approaches that prioritize the voice and agency of women survivors of intimate partner violence more successfully. The study ended with recommendations for stakeholders andactivists alike that could help them create more women-oriented ADR processes.Most of the ADR practices examined in the study were the remnants of historical disputeresolution mechanisms that addressed issues of all types, not specifically intimate partner violence. The knowledge, biases, skills, etc. of the entity or authority that leads the process of ADR varies greatly. Often, community members seek out local leaders to help resolve disputes,and they are typically elder men of the community’s ethnic and/or socio-economic majority, putting minority victims at a major disadvantage. These ADR facilitators are rarely adequatelytrained or have the proper skill set to aid survivors. These leaders are also often inconsistentwith their resolutions based on their preferred scripture, religious law or customary law whichfrequently prioritizes keeping the relationship together rather than the victim’s needs andsafety.ADR processes do have some perceived advantages which are discussed and critiquedthroughout the study. One of the commonly perceived advantages of ADR processes is thatthey increase the number of available options to survivors. However, this is not the case whenforms of ADR are directly linked to the formal justice system, as is the case in Uganda. Therequirement of taking cases to ADR before bringing them to the formal courts can be timeconsuming, frustrating and dangerous to the victim. This requirement was a result of a backlogof cases, but does not always aid the victims. Instead, it may further delay the victims from bringing their cases to formal courts which can be dangerous. Still, many women prefer thesetypes of resolutions over the formal court system.Often, formal justice system remedies to intimate partner violence may be less accessible,more expensive, and long, endangering the survivor even more, so women tend to choose pursuit of ADR methods. ADR methods are also viewed as less intimidating and more flexiblethan formal court processes because some women seek solutions that will not result in the arrestof their perpetrator. Unlike court processes, ADR processes typically garner more communitysupport because they often require it to function. Finally, women may prefer ADR methods because formal, state-run mechanisms may not exist or may not be trustworthy.Although ADR methods are often preferred by women, they rarely prioritize the women’svoice and agency. Thus, despite the women’s likelihood to choose ADR methods, they often donot provide solutions that are in the survivor’s best interest. One of the major issues with ADR  processes is that they do not consider power imbalance within the relationship when consideringthe case. A violence prevention network coordinator from Uganda pointed out that theultimate goal in ADR is usually to keep the relationship together. Often, the facilitator identified the challenge causing the violence as the woman’s fault. They attempt to listen to both sides, but when specifically considering the source of the violence, the facilitator typicallyconsiders what the women could have done to keep the violence from happening. In the study,CEDOVIP’s material points out that when mediation assumes that both partners have equal power, it ignores the fact that the perpetrator may be continuing to control the victim duringthe mediation. A fair agreement is nearly impossible to achieve because the perpetrator maycontrol their partner hidden signals or threats to prevent the victim’s honesty or expression of needs.  Another issue is that these community-based solutions tend to reinforce or favor existing power imbalances and inequalities instead of prioritizing women’s safety. The World Bank addressed this issue as far back as 2005, and pointed out that in some ADR practices, it is eveninconceivable that the outcome would be unbiased. In some places, the outcome is expected to be based on kinship or family backgrounds instead of legal principles.The study also found that ADR authorities often attempt to minimize communityinconvenience by keeping the family together, regardless of what the survivor prefers.Although this is sometimes what the survivor prefers, the assumption that this is their  preference or the insistence of keeping the family together at all costs can silence the women’svoices and agency. In Uganda specifically, it was pointed out that people do not want to beresponsible for breaking up a relationship or a family which leads to reconciliation at all costs.In these situations, women are typically blamed for the challenges that lead to violence. Infact, the community watches which are often believed to hold perpetrators accountable, mayhinder the survivor if the community typically blames victims for intimate partner violence.They may see the survivors as trying to break up their own family.These processes also typically silence and disempower the women seeking their services. Inthe information-gathering stages, many ADR processes focus on gathering physical evidence or witnesses which are difficult to come by in situations that occurred in their private residence.Often, this can result in the interrogation of the survivor instead of allowing her to tell her story and be believed. A violence prevention network coordinator in Uganda pointed out thatthe woman is lucky if her partner is quiet throughout her speech. Normally, the partner interrupts or dismisses her for being emotional which he uses against her. Some informants for the study perceived women as considering the public ADR session as punishment enough because it drew attention to the situation and shamed her partner. Others also fail to recognizethe risk of retaliatory violence after the shaming session. CEDOVIP points out that what avictim says in mediation may put the victim, the children or the family in danger after thesession because the survivor brought private matters to the public. A lawyer in Ugandaexplains that in their perspective, women have no say in the punishment, demonstrating thatADR processes typically do not give survivors more options than formal court proceedingsmay. The enforcement step is also typically ignored when the hearing itself if the outcomethe woman hopes to achieve which increases the danger of retaliatory violence. In Uganda,one victim/survivor of intimate partner violence confirms this suspicion by saying that there isno enforcement; there is simply the assumption that the man will respect an MOU.Another danger of ADR responses is that when they focus on incidents and keeping thefamily together, they reinforce the intimate partner violence cycle. In other words, instead of considering the cycle that encourages violence, ADR processes only work on resolving the particular incident that was reported. The violence cycle involves tension building, a violentoutbreak and a honeymoon phase. The honeymoon phase takes place after a violent outbreak and includes the perpetrator issuing apologies, expressing regret, etc. while the power andcontrol patterns continue. It is very likely that ADR processes become a component of thehoneymoon phase. The perpetrator may issue an apology publicly, the community believeshim, and he continues to harm his partner. This cycle becomes more problematic becausemediation often assumes that both partners are seeking a violence-free relationship. In reality,as CEDOVIP points out, the perpetrator often believes violence is necessary and acceptable,which is not likely to be changed solely through mediation.The question of whether ADR processes or formal court processes are more accommodatingto women’s voice and agency is a complicated one, and cannot be simply answered. In ADR  processes women at least allow the victim to speak and be heard, but the victim rarely hasagency. Thus, a more appropriate solution may be to alter the ADR processes and practicesthat are in place to ones that are more conscious of women’s voice and agency. One of the benefits of the study is that it points to several examples of ADR processes that prioritizedwomen’s voice and agency. An important outcome of this study is the examination of alternatives to mediation and ADR practices. These success stories can provide insights so thatADR processes can be improved on a larger scale.  One successful example of ADR that prioritizes women’s voice and agency are ResponsibilityMeetings by Uganda’s own Raising Voices and Center for Domestic Violence Prevention(CEDOVIP). Responsibility Meetings are held with the purpose of shifting community norms andattitudes related to violence against women. After the mobilization initiative reaches a certain point, then organizers introduce a revision of traditional ADR practices to uphold the newcommunity norms rejecting violence. The SASA! Initiative, created by Raising Voices andimplemented by CEDOVIP, is a community mobilization initiative proven to shift communityattitudes, norms, and behaviors related to domestic violence and HIV.SASA! encourages communities to analyze, discuss, and change power inequalities both withinsociety and in relationships. SASA! is comprised of four phases. The Start phase involves trainingactivists and establishing local connections in order to support the following phases. TheAwareness phase includes activities that encourage critical thinking and dialogue about negative andimbalanced power relationships. The Support phase encourages the community to collaborate toadvance positive change related to domestic violence and HIV. Behavioral change is supported inthe final phase, Action. SASA! Is a long term commitment that can take more than 3-5 years, butthe results are long lasting as well.When implementing SASA! phases, CEDOVIP staff noticed that ADR processes still did notsupport women’s voice or agency. They began to reframe these approaches in line with the progress in SASA! which resulted in Responsibility Meetings Philosophy and Training Manual.These meetings point out that mediation is inadequate to end violence, especially when facilitatorsare not trained to address violence against women. These meetings serve as an alternative totraditional methods of mediation for domestic violence cases which prioritize the safety of thesurvivor, facilitator and support while closely monitoring the follow up. The first step of theResponsibility Meeting process includes training the facilitator. The facilitator should come froma place that has achieved significant SASA! progress, and would work through training that coveredthe fundamentals of domestic violence, active listening skills, risk assessment, determination of the dominant power possessor, presenting the survivor with options, and monitoring the processand results of the meetings. This method has not been widely tested or implemented, but itrepresents a unique attempt to make ADR processes safe and empowering for survivors in placeswhere community norms have begun to support women’s rights.More successful ADR methods are the Committees Against Violence Against Women(CAVAWs), which work similarly to other ADR processes with a chief-led court that resolvesdisputes. In cases related to women’s rights or intimate partner violence, a committee of women’sadvocates join the court and carry an influential role in developing solutions. Instead of replacingADR processes which would take massive amounts of time and resources, the CAVAW initiativeaimed to improve and influence the existing processes. The members of CAVAW are trained inlegal literacy and counseling which qualifies them to aid survivors. Instead of having open hearingswhere the perpetrator is present, CAVAWs tend to have private meetings to discuss the situationand keep the victim’s confidentiality. The members of CAVAW also refer survivors to health or support services, help survivors make formal charges at a police station or assist survivors inseeking ADR in her village. CAVAWs are also typically the first or highest form of leadership thata woman can attain in these communities. The influence and respect of these committees helpsinfluence gender power structures in the communities where they exist.Another positive example of an ADR process that prioritizes women’s voice and agency arethe Women’s Courts in Gujarat, India. These organizations are actually ADR processes led byhighly trained women that offer arbitration for cases of violence. Before presiding over disputeresolution hearings, these large groups of women receive training which is guided by a feministcritique of the legal system. The women’s courts follow the same steps as ADR processes, butthey prioritize women’s rights and follow feminist principles. In cases of intimate partner violence, these women’s courts follow six mandatory aspects of ADR processes:
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