An event-forcing action shows us the answer lies not in technology or law, but in doing more with less.
The irony of the pandemic is that it can convert even the least reform-minded bureaucrats into transformation heroes. How? They’re responding to an entirely new set of circumstances thrust upon all of us by the restrictions and lockdowns. Consider the effects of the pandemic on dispute resolution, particularly mediation. In the judicial reform context, the basic case for mediation is simple: more cases in mediation mean fewer cases in overloaded, inefficient courts. When courts are closed, disputes start piling up worse than ever, and that puts great pressure on the judicial system’s management. Mediation offers a relief valve.
In the case of Kosovo, where I manage a reform team, before the pandemic, progressive minded leaders had been gradually constructing a statutory framework for mediation. A law passed in 2008 created a legal framework for mediation. That law was replaced ten years later by one that clarified roles and processes and imposed mandatory mediation sessions for certain kinds of court cases. It followed a typical development path seen in rule of law reform: pass a law, train on implementation, disappointing results, pass another (better) law, train, rinse, repeat. But why replace the entire law? One key reason: there were hardly any civil mediation cases, virtually only a handful each year. Kosovo had benefitted from a decade of intense commitment by a crowded donor community eager to support a mediation culture and yet, still, it had great difficulty producing a significant number of civil mediation cases.
Stepping back to the big picture, the development challenge in creating modern mediation systems from scratch in transitional or post-conflict economies is to build both the supply and the demand for mediation and make those two lines meet up in a reliable way, i.e., create a market. Supply generation typically starts with building a cadre of trained professionals as mediators and developing a rules-based framework with quality controls over the profession. Often it involves creating mediation “centers” – organizations that maintain a mediator list, rules, processes, and templates, and that administer cases. Then they wait … but as is often the case, hardly anyone shows up. And these centers become perpetually dependent on donors footing the bill.
Sometimes there is a temporary market created by mediation supply building. Many of those who complete donor-offered training-of-trainers programs then find themselves offering to train others. This training activity itself can become profitable for a time, as word gets around and more eager professionals start paying to attend courses, earn certificates, and learn new skills. It mimics self-sustainability but eventually will run out of fuel. This happens sooner if there is no serious uptick in mediation cases. The market experiences a supply glut.
This raises the other side of the economic equation: the need to build demand by getting disputants to divert their cases to mediation. That’s often attempted through program-supported outreach campaigns to build public awareness, sometimes in very sophisticated and targeted ways. And who better for this than the newly trained mediators and centers – who are invested – to get the message out to the litigating public. The sales pitch seems obvious. Mediation offers benefits that clearly outweigh the costs, delays, and risks of fighting it out in court. But the problem remains, even when aware of that value proposition, many potential users – disputants – simply default to the court, because that’s what they’ve always done. It’s a kind of cultural inertia where dispute resolution is a zero-sum game to be won or lost.
Some try to get around that inertia by creating financial incentives, such as reduced or refunded court fees for cases that are resolved through mediation. Yet this type of benefit typically only favors one side, usually the plaintiff, while it takes all sides to cooperate for a successful mediation.
Finally, courts themselves can be crucial to the demand side work. If a court system is overburdened by cases, and if diverting some of those cases to mediation may reduce that burden, then courts may be recruited into referring cases as part of the litigation process. Sometimes judges do that on their own by serving as activists for mediation. Other times, as is the case in Kosovo, a law or rule change is made to integrate a mandatory mediation phase in the litigation process. Italy has done that to great success, as have many jurisdictions in the United States, which has enjoyed a strong culture of mediation for more than a half century.
Getting back to Kosovo, years of donor support have ensured that there is a supply of mediation, and our program approach focuses on building demand. Our program has spent a year and a half engaging with mediators to develop their outreach and public awareness skills, and we are working with courts helping them to refer cases to mediation. And then, the pandemic created an event-forcing action. With courts suddenly closed, pressure grew on the judiciary to find a way to manage an ever-growing pile of new cases. Our team recommended to the judiciary to use online mediation as a means to get around the very real constraints of a closed courthouse. The judicial council overseeing the judiciary enthusiastically agreed and issued a directive to court presidents to use online mediation. In response to the pressures of the pandemic, they became the agents of reform. With that green light, our team identified and tweaked a simple web-based video platform and began working with court clerks and mediators to use it.
We are still dealing with institutional inertia and are looking for ways to incentivize judges and clerks to refer cases to mediation by including it as a factor in their performance management. Overcoming that inertia takes a sustained effort. Yet with online mediation, court clerks can now use existing technical infrastructure to move parties to an online session with a mediator. Following the pandemic, we expect online mediation to continue growing. Nevertheless, as a reform option, online mediation would not have been considered were it not for the extreme pressures created by the pandemic.
Managers of commercial legal and institutional reform programs recognize that, despite lofty ideals and development hypotheses, the challenge occurs where the rubber meets the road. Interestingly, there is almost always some leadership willingness as evidenced in policy and legal frameworks. The challenge remains in the details of the bureaucracy, and the solution in finding the trigger points that bypass inertia, change momentum, and unleash change. The pandemic has inadvertently created what I would call accidental reformers. Program managers should seize this window of opportunity.
Public leaders around the world are sobering up to need to find ways to maintain services in the face of dwindling revenues resulting from the economic impact of the pandemic. Kosovo offers an excellent example to draw upon. Pushing for online services such as online mediation in the case of Kosovo has less to do with the Internet or even mediation. We are learning that answer lies not in technology or law, but in economics: in doing more with less.
Chris Thompson serves as Chief of Party for USAID’s Commercial Justice Activity. Prior to his 20+ years of service as a development reform professional, he practiced as an attorney in Washington, DC focusing on commercial litigation, bankruptcy, and creditor rights.