GROUP 3

COMMUNITY-BASED DISPUTE RESOLUTION
Rapporteur: Ms. Marina AVANCENA (Philippines)
Co-Rapporteur: Mr. Terry LUI (Papua New Guinea)
Mr. Agus Akhyudi MANGKUADININGRAT (Indonesia)

Chairperson
Co-Chairperson
Members

AdviserMr. Yasushi KATADA(Japan)Mr. Hassan HANEEF(Maldives)
Mr. Handapangoda Don Lushan Thusith Mudalige (Sri Lanka)
Mr. Tsulthrim DORJI(Bhutan)Mr. Peerapong PAREERURK(Thailand)
Mr. Takashi SHIONOYA(Japan)Ms. Fumiko AKASHI(UNAFEI)

I. INTRODUCTION
There would be no opposition to the thought that one of the major objectives of our criminal justicesystem is to prevent crime in accordance with rule of law (Sustainable Development Goal 16.3). Our formal
criminal justice system would be listed at the top of the options because those specialized organizations, suchas the police, prosecutorsʼ offices, courts, correctional facilities and probation offices, operate under statutory
laws by duly appointed public servants. These organizations are supposed to be competent in crime
prevention. Under such systems, a typical example of public participation is the jury system. Among
participating countries, Japan has adopted a lay-judge system, through which the sound common sense ofordinary citizens is introduced into the legal system to curb the adverse effects of excessive expertise andabuse of power; also, citizens who have served as lay judges bring their experiences back to the communityand enhance the publicʼs understanding of the legal culture.
However, proper management of such entities is nothing more than a means and not the purpose. In
addition, the formal judicial system in general is expensive, time-consuming and not necessarily familiar withthe actual situations in which crimes are committed. These issues are even more important for countries
which are challenged by underdeveloped economies, geographical remoteness and diversified cultures.
Considering these factors, the group has chosen “Community-Based Dispute Resolution” (hereinafterreferred to as “CBDR”)̶through which members of the community participate in the criminal justice system
in a broad sense̶as the main topic, believing in its significance and importance; to effectively prevent crimeby an approach incorporating the community; to improve access to justice and to enhance rule of law by
providing fair, prompt and inexpensive means of dispute resolution; and to maintain peace and harmony inthe community based on its diversified culture, etc.
It also should be mentioned that the group found it challenging to establish a detailed and specificdefinition of CBDR, mainly because of the difference and diversity in the legal systems and practices among
the participantsʼ jurisdictions. However, bearing in mind the above-mentioned significance and importance of
CBDR, the group tried to identify the practices of each participantʼs jurisdiction and found common issues:
how to enhance CBDR; how to guarantee fairness through CBDR; and how to ensure the performance ofobligations agreed to through CBDR. This report summarizes the practices of CBDR and the discussions
based on the above-mentioned issues.

II. OVERVIEW OF CBDR IN THE PARTICIPANTSʼ COUNTRIESAs mentioned above, the group accumulated its examples of CBDR in each participantʼs country as thebasic materials for its further discussions.

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A. Bhutan
Community-based dispute resolution has existed in Bhutan for a long time and is still in practice. In the
Bhutanese context it is known as nangdrik, which means settling disputes and cases in the community byelders without going to court. However, there were some instances where certain heinous cases also weresettled mutually by community elders. Later with codifying the law, such process was to be stopped, but due
to mountainous terrain it was difficult for the people to go to court to settle the case, which proved expensive.
To ease these burdens, the judiciary allowed the practice of community-based dispute resolution to continue,
but there is a restriction that the serious cases cannot be settled at the community level. People are all aware
about the system and are happy. They report the case to police and the police screen the case and allow themto settle the minor cases amicably at the community level.
The challenges faced in Bhutan are the lack of sufficient numbers of judges and prosecutors; hence all
people who want to avail themselves of the service are deprived. Moreover, there are not many students
interested in law since they are not taught in the elementary school. Only a few understand that the law isimportant and those ex-judgesʼ children opt for law. Therefore, it is very difficult to have many judges. Somejudges retire early and establish their own law firms which are lucrative at this juncture. Therefore, settlingcases in the court takes a long time, which people do not like. Most people prefer resolving the case amicably
without going to court. Moreover, there is no law college in the country for students who want to pursue law
at their own expense, and they cannot go outside the country to study due to financial constraints. A law
college has to be established in the country to solve the above-mentioned challenges. If a law college isestablished in the country, the current situation can be partly solved, and the rule of law can be enhanced.
More legal awareness has to be promoted in the schools, which will create enthusiasm in the minds ofstudents.
B. Indonesia
In Indonesia, especially in criminal cases, CBDR is not available in criminal cases. Only in civil cases isthere an opportunity to settle the dispute using CBDR or mediation as we know it. Because in Indonesia thereis the principle of legality (nullum delictum nulla poena sine praevia lege poenali) through the criminal codeand the principle of codification, any criminal act must be processed based on Indonesiaʼs written law bycriminal procedural law. This challenge hinders the promotion of CBDR as an alternative option to avoid
formal proceedings or trial by court, and the only remedy is the amendment of the criminal code and thecriminal procedural law.
C. Japan
There is no CBDR system in the criminal procedure in Japan; however, it is possible for the parties tomake civil reconciliation. Because civil negotiation is not decided statutorily, civil reconciliation can be held at
any time and there is no limitation on those involved. Although the parties can also use the courtʼs civil
mediation system, the process is relatively time consuming. The mediator is selected from the private sector.
Criminal liability is separated from civil liablility. So even if civil reconciliation is concluded, the criminal
procedure does not end immediately. It can be a factor that reduces criminal responsibility. Although thepolice will send cases to the prosecutor once the investigation is started, the prosecutor will not prosecute
those cases if mediation is concluded in minor cases.
D. Maldives
In Maldives, CBDR has not been effectively in place due to the countryʼs ongoing legal reforms. Presently,
a threshold issue in the Maldives is legal aid and numerous problems faced by citizens in obtaining competentand affordable legal representation due to high demand. However, many efforts have been taken to improvethe criminal justice system. Disputes are handled predominantly on an intra-family basis or with theintervention of the Island Council or senior members of the community. In both rural and urban areas, police
play a vital role in dispute resolution and guiding the public. In minor cases, the police try to solve thedisputes by negotiation. If the matter is not resolved, investigation continues; if there is reasonable evidence,the case is sent to the Prosecutor Generalʼs Office for prosecution. In children- and family-related cases, after
analysis, depending on the magnitude of the case, the case is sent back to the police for mediation. For
juvenile cases, the court uses guidelines for mediation, in which case conferences are held for both pretrial
cases and convicted cases. The agencies included are the police, prosecutors, correctional, juvenile justice unit
case workers, family and gender case workers, and the Ministry of Education.

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E. Papua New Guinea
Village Court Mediation in the PNG context is a customary way of resolving disputes and maintains peaceand harmony in communities. Community leaders have a responsibility to maintain peace and harmony incommunities. They use CBDR to mediate civil cases and in criminal cases. PNG law does not allow mediationof criminal cases, but local communities resort to mediation, especially in sensational cases, for the sole
purpose of maintaining peace and harmony in communities. This does not, however, necessarily exempt theaccused party from criminal liability; hence payment of compensation is taken into account as a mitigating
factor in criminal proceedings. Cultural diversity and geography are major challenges. Clans or tribes
compose their so-called community and each community has its own culture; therefore, it is almost impossible
to come up with just one procedure to be adopted by all without encountering much resistance from thelocals themselves. People from remote areas cannot easily access the regular courts, so they resort to themediation process in the village courts. Good practices in PNG in regard to CBDR are as follows: socialpressure from the community on the defendant to meet the agreed terms of settlement, so assistance issought from tribes, clans in settling terms agreed upon during mediation. Community, clan or tribal
contribution in settling disputes enables stronger communities in deterring crimes.
F. Philippines
In the Philippines, the Barangay Justice System is mandated by Republic Act No. 7160 or the Local
Government Code of 1991 as a community-based mechanism for dispute resolution. The system has anestablished procedure that covers all issues that may arise in the administration of CBDR and all necessary
forms were provided for proper recording of complaints, serving summons, observance of the period ofsettlement of disputes and other related procedures. There are some indigenous tribes mostly in the northernand southern part of the country who have their own customary traditions regarding conflict resolution in
their respective communities; however, the law on the Barangay Justice System (BJS) provides that incommunities that have distinct traditional practices in settling disputes, the customs and traditions of theindigenous cultural communities shall be applied. Thus, settling disputes through their Councils of Elders arerecognized and followed with the same force and effect as the procedure in the BJS. It is also noteworthy tomention that there is an annual search for outstanding Lupong Tagapayapa or Lupon (Barangay PeaceCouncil). Aside from the distinct honour, the chosen outstanding Lupon will be given the Presidential
Commendation and a cash prize. This awards system is a strong motivation to all Barangay Lupon to performtheir best.
G. Sri Lanka
In Sri Lanka mediation is governed by procedural law and is available for both criminal and civil matters
but with limitations. Minor criminal cases such as injury and mischief where the sentence is less than one
year necessarily should go to mediation. Minor civil claims of less than 25,000 rupees, too, should undergo thesame process. The original court has jurisdiction to try these cases only if the mediation process fails. Legal
representation is not permitted. The mediation is attempted by three mediators. Two of them are selected byboth parties, and the leader is selected by those two. Mediation is not available in matters where the state is aparty or in proceedings instituted by the Attorney General.
H. Thailand
Thailand attaches great importance to public participation in the settlement of disputes in the society.
One form of CBDR in Thailand is the mediation process. The implementation of the mediation system aims tocreate fairness in the society. Mediation is an alternative dispute resolution process in which the mediator
acts as a facilitator for helping and negotiating to settle the dispute between the parties. It is often used tosettle disputes in civil cases and criminal cases which are compoundable offences such as fraud,embezzlement, libel etc. In Thailand the mediation can be done by the sheriff who is the head of thecommunity by the request of the offender and with the consent of the victim. Even when the criminal case isongoing, the justice process, not only in the investigation but also in the public prosecution proceeding, thepolice officer or the public prosecutor can also mediate a compoundable offence case. If the parties agree, thepolice officer or the public prosecutor will notify the victim to withdraw the petition and the victimʼs right tobring a criminal case against the suspect will be terminated. In the court proceedings, the mediation cancontinue as long as the case is not final. Initially, the case will be sent to the Mediation Center which will be
conducted by the mediators who were selected from among people who are not judges. That is to say the
mediation system in Thailand also gives the opportunity to the public to participate in the judicial process by
being a mediator in court. Thailand has been promoting dispute resolution by mediation because when the193

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parties agree to resolve their dispute they also have a good relationship. The mediation process can reduce
the number of cases that go to the court and also reduces the time and expense of litigation. Sometimes, thevictim may receive compensation quickly and certainly because it can be determined as a condition that thevictim will withdraw the petition when the suspect or offender has paid compensation to the victim. It also isgood when the defendant has no prior history of offending.

III. CHALLENGES
The challenges faced in CBDR proceedings vary by jurisdiction depending on the unique and peculiar
situations as well as the objectives in each country. Most countries use CBDR in civil or minor cases as acustomary process of restorative justice in the community. Bhutan, Philippines, Maldives, Thailand and Sri
Lanka mediate both civil and criminal offences but only in minor cases for criminal offences.
A. How to Enhance Mediation
The group generally agreed that enhancement of mediation is necessary in order to empower the public
or community to actively and effectively participate in criminal justice. There are, however, challenges
limiting this goal.
In Indonesia, they have rigid statutory law and do not recognize mediation in criminal cases because of
the principles of legality and codification so that any criminal act must be processed based on Indonesiaʼswritten law. There are de facto mediations in Indonesian society, but it is quite rare for the parties involved to
conduct them because even if they reach an agreement, it has no influence on the disposition of the criminalcase.
In Maldives, CBDR is very challenging due to lack of cooperation between stakeholders, social, culturaland religious beliefs; lack of awareness of legal rights and options especially among vulnerable groups; closeminded people mostly in the islands, and geographical diversity. Furthermore, misuse of power by thenegotiators especially at the local council level, since the councils have insufficient knowledge in this area,
could diminish public trust in the criminal justice system.
In PNG, the individual perpetrator hides in the shadows of tribes or clans, and liabilities are shared byclans/tribes.
Public awareness, in the sense that the community must be educated on the process flow of the mediation,is lacking in almost all jurisdictions as mentioned by the participants during discussions. Promoting publicawareness will enhance the effectiveness of the system. The public will be guided on what to do, where to go
and whom to approach directly when an incident happens in their community, especially for the people living
in remote areas.
B. How to Achieve Fairness in Mediation
There were different views shared by the group on principles of fairness in CBDR. A majority of theparticipants agreed based on experience and practice that wherever there is consensus reached by bothparties, fairness is reached; however, if no amicable consensus is reached, the matter can be appealed to thenext level of the formal justice system. In the case of Japan and PNG, social pressure from communities,
whether positive or negative, can have a bearing on the outcome of the cases.
In Japan, the public legal support for victims had been weaker than that of the defendants or suspects. In
some cases, the victim claimed that the mediation was not based on his/her consent, especially when only theoffender is represented by his/her attorney. In other countries, it is also common that there are tendencies of
unfairness in mediation due to the various reasons stated below:
1. Power Balance
In CBDR, there is always the challenge of striking the balance of power between the protection of rights
of defendants versus the protection of victimsʼ rights. This is the case in the Japanese system. Generally
across the different countries, a lawyer is not needed in the mediation process as it is a customary process
based on general consensus of resolving issues. Some issues are unresolved during mediation, partiallybecause such cases can be referred to the formal justice system where legal assistance can be utilized.
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2. Influence of Social Pressure
The influence of social pressure can have a positive and negative effect on mediation. The negative effectcan be on the issue of collectivism versus individualism, where community expectations are placed on theoffender or the victim which are contrary to the victimʼs will to resolve the issue. The social pressure can also
influence the outcome of the mediation process at the community level based on general community
expectation. On the other hand, the positive effect of social pressure helps in repairing the damage done by
the offender.
In PNG where there is the issue of collectivism versus individualism, social pressure from communities
can have a negative effect on the mediation process. Collectivism means the liabilities of the case are sharedby clans or tribes who pay compensation upon agreement of mediation as seen as the customary way ofsettling disputes through mediation. Individualism is more of a formal process where individual perpetrators
face the formal justice system on their own as individuals responsible for crimes committed. Perpetrators orcomplainants are also subject to social pressure by communities based on consensus.
3. Quality of Mediator
It was generally discovered in the group discussion that the selection of mediators was based on somecriteria depending on the different context of mediation in each country. The importance of selection ofmediators has become greater because it is at the core of achieving fairness in CBDR. In our discussion, we
talked about the issues related to their incentives. We unanimously agreed that the internal incentives, i.e.,
satisfaction felt by contributing to society could be the most important, because those who want such feelings
are expected to be fair and sincere mediators. Countries that have formal mediation systems have criteria
outlining different levels of competencies, codes of conduct and qualifications. Some countries have formal
guidelines on how to conduct mediation while others do not. It was also generally observed that there is a
growing need for mediators to be trained to ensure that quality mediation outcomes are realized. The
diversity of cultural practices and geography also pose challenges. General agreement from discussion onenhancing fairness indicates that there is growing need for guidelines on mediation, training and appropriate
procedure of selection to be in place to guide a fair process for the culturally diverse and geographicallychallenged countries with more public awareness on the process and training of mediators.
4. How to Secure the Execution of Settlements Resulting from Mediation
As realized in the group discussions, securing mediation settlement is often through consensus by theparties involved. The process of ensuring compliance of terms agreed upon during mediation differs fromcountry to country. In Japan, prosecutors and counsel put importance on approaches incorporating therelatives or the neighbours of the defendants to encourage the defendant to comply with the obligations
agreed to with the victim. In PNG, village court officials or clan/tribal leaders are responsible for ensuring
compliance with terms of settlement agreements. If there is a breach of the agreement, the matter is referred
to police for prosecution or to the courts. In Thailand, there are two types of agreements: one is conditional
and the other is without condition. If the agreement is breached, the matter is referred to court for
prosecution either civil or criminal in nature. In Bhutan, if there is a breach in the settlement agreement, it
will be referred to the police for filing of charges, or they can directly approach the court for settling the case.

IV. RECOMMENDATIONS
After all the sessions concluded, the group agreed to the following recommendations to address the issues
and challenges identified:
A. On Enhancement Issues
1. In order for the community-based mediation system to be effective, countries need to recognize its
significance or impact on criminal justice and pass a statute as a basis to that effect. In turn, policy
guidelines will be laid out for its implementation so that they can reap the benefits that it offers;
2. Public awareness or education campaigns must be actively carried out by stakeholders to disseminate
the said statute and policy guidelines through the utilization of call centres, such as Japan does, andalso the mass media or various social media platforms;
3. Collaboration with bar associations for pro bono legal assistance to parties; and195

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4. Establishment of volunteer probation officer systems which would be greatly beneficial in involving
the public in the criminal justice system.
B. On Fairness Issues
1. Appropriate selection and training of quality mediators are important to increase the success of
mediation. In Thailand, they have established a mediation centre in every court of first instance where
mediators with proper training mediate cases, resulting in a 90% success rate, which means that 90%
of cases were successfully mediated and only 10% went to court. In Japan, selection may also be anissue because of its aging population with the obvious problem of getting mediators from the younger
age groups; however, this situation can be advantageous in the sense that older people have a wealth ofknowledge and experience in dealing with conflicts or problems as well as their feelings of selffulfillment that they will leave behind a legacy of their own.
2. Policy guidelines are also important here to guide the mediators in upholding the rule of law at all
times whenever they mediate cases;
3. Providing incentives to mediators whether in monetary or honorary form, or both, will serve as
motivation factors for them to perform their role the best they can to reciprocate the incentives theyreceive; and4. As a last resort, when concerned parties are not satisfied with the settlement, they can always appeal
their case and go to the formal legal procedure.
C. Securing Compliance with Negotiated Settlements
1. Inclusive mediation where family members, colleagues in the workplace, friends and other community
members will be proactively involved in ensuring compliance with the settlement.
2. Include in the policy guidelines procedures for securing execution of settlement agreements in casethe respondent does not voluntarily comply with the settlement to ensure that the victim will receive
the compensation agreed upon.

V. CONCLUSION
The group came to the conclusion that public participation in criminal justice is not an independent topic
to be tackled exclusively, but it is intertwined with the topics of access to justice and law-related education.
This is due to the fact that in order for the public to actively participate in the criminal justice system, lawrelated education is required to make them aware and empowered to get involved. It is in the same way that
CBDR, which is the focal point of this humble undertaking, provides access to justice, especially to the poor
and underprivileged, who compose the majority of the population around the world, in order to bring forthjustice for all. It is therefore the groupʼs aspiration that this report will contribute to the promotion of the ruleof law and the culture of lawfulness (SDGs 16.3) through possible replication of the good practices shared.

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