Alternative and Indigenous Dispute Resolution: A Legal Perspective

Alternative and Indigenous Dispute Resolution: A Legal Perspective

Saleem Gul (Institute of Management Sciences, Pakistan)
DOI: 10.4018/978-1-5225-8516-9.ch002

Abstract

This chapter provides a detailed discussion on the concepts surrounding the terms conflict and dispute. After establishing the necessary grounding, the chapter then moves into exploring (in significant detail) the concepts framing the idea of alternative dispute resolution (ADR). The chapter provides a detailed discussion, based on contemporary literature, to differentiate between disputes and conflicts. Then the discussion will focus on removing commonly found confusions related to the vocabulary of conflict and ADR. Following this, various key government acts and reports that shape the state of ADR are discussed. In an effort to ensure brevity, only those concerns that relate directly to ADR or directly address ADR are discussed. This follows with a discussion on dispute resolution in tribal and indigenous societies and what locally derived methods are practiced.
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2. Background

Conflicts and disputes are nothing new, we as humankind have been experiencing conflicts and disputes from the onset. The oldest conflicts that we read or hear about are mostly biblical, some examples include the conflicts between God and the devil, followed by conflicts between brothers Caine and Abel, and between God and the Babylonians. Needless to state, the cause, nature, and durations of conflicts have varied over the times and so have their outcomes. Conflicts and disputes if managed or resolved lead to stronger and longer-lasting relationships (Jehn, 1994), to an expedited and judicious conclusion (Fenn, 2006), and to a greater readiness to work together in the future (Rahim, 2001). Conversely, if not managed properly, they can wreak havoc and may lead to actions causing impairment or death, and destruction as seen in the case of wars.

Key Terms in this Chapter

Hearsay Evidence: The report of another person’s words by a witness, usually disallowed as evidence in a court of law.

HGCRA: Housing Grants, Construction, and Regeneration Act.

ADR: Alternative dispute resolution.

Jirga: Literally defined as a gathering of elders. It is a term used in the Pashto language of the North Western region of Pakistan and in the Pastho speaking areas of Afghanistan. A jirga is a conflict / dispute resolution process where the disputing parties after agreeing to the jirga process plead their case in front of elders from within their community. The outcome of the jirga is based on either party achieving a two-thirds majority or via a decision recommended by the elders. The higher courts of Pakistan have ruled that jirga’s for criminal cases are illegal because their decisions have often proved to be counter to the constitutional rights of the persons in dispute. However, administrative jirga’s are allowed within the Federally Administered Tribal Areas of Pakistan and within rural and urban areas to resolve small claims and disputes.

CFA: Conditional fee arrangement.

Fiduciary Duty: A relationship between a trustee and beneficiary based on trust.

Panchayat: Literally defined as a gathering of five. It is a term used within the rural Punjab provinces of Pakistan and India to define a dispute resolution process similar to the “jirga.”

AJA: Access to Justice Act 1999.

UNCITRAL: United Nations Commission International Trade Law Model Law of International Commercial Arbitration.

Anticipatory Breach: Also called anticipatory repudiation, is a term in the law of contracts that describes a declaration by the promising party to a contract, that he or she does not intend to live up to his or her obligation under the contract.

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