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Malin: Mediation method makes justice local matter

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Justice ministry spokesman Chin Malin speaks at a press conference in February. Heng Chivoan

Malin: Mediation method makes justice local matter

Legal and judicial reform is at the core of the government's agenda for the Sixth Legislature of the National Assembly.

The Ministry of Justice is the government’s administrative arm in charge of managing and improving the courts and judicial system as well as being tasked recently with the development and implementation of enhanced out-of-court dispute resolution mechanisms.

The ministry recently initiated a study on alternative dispute resolution methods. The study used a compilation of the results from several research sources to prepare a report that provides a conceptual outline for the development of a legal framework titled Non-judicial Dispute Resolution Mechanisms through Community Reconciliation.

The report is a resource for mediators, ministry officials, local authorities and other stakeholders to begin the effective implementation of an alternative dispute resolution mechanism that follows a single national standard.

According to the report, non-judicial dispute resolution mediation processes consist of mediation, arbitration and other informal non-judicial methods, some of which are drawn from cultural traditions or are religious in nature.

Justice minister Koeut Rith established a technical working group on policy-making on these dispute resolution mechanisms in June of last year, appointing secretary of state Chin Malin as the group’s chairman.

To gain a better understanding of the alternative dispute resolution process and the progress the ministry has made towards putting it into wide use, The Post’s reporter Voun Dara sat down with Malin for our featured interview this week.

How are things progressing so far with the non-judicial dispute resolution mechanism?

The ministry’s technical working group sat down together and right away we determined that we needed more information on this topic overall in order to get the job done so we commissioned a scientific study of dispute resolution mechanisms along with a conceptual overview as an introduction, and then finally analysis of the data in the report – but specific to Cambodia – with recommendations on how a tribunal like this might work here and where we should start in terms of implementing it.

So the report that we produced is effectively a roadmap for developing a non-judicial dispute resolution policy for the Kingdom.

Going forward, all the work we’re going to do will use this report as the conceptual starting point. And that work will consist of preparing a national policy on non-judicial dispute mediation with the ultimate goal of drafting it into law.

Why is it important for Cambodia to have a policy like this? Isn’t this what the courts are supposed to do anyways?

The justice ministry considers the establishment of this mechanism as a priority, firstly because it will contribute to societal harmony at the local level because – through a mechanism like this – citizens who find themselves in conflict with one another can resolve their disputes face-to-face and treat each other like the neighbours and fellow community members that they actually are rather than resorting to judicial mechanisms.

The research we’ve reviewed indicates that these alternative dispute mechanisms can help reduce the occurrence of some forms of violence in communities at the grassroots level. It’s more flexible and it can intervene and mediate disputes more quickly than the courts possibly can.

So, instead of people’s anger being left to fester while they wait on the court or tensions left to simmer until they boil over, the people in the midst of the conflict can take care of it quickly – possibly even that very day – and this includes domestic conflicts, domestic violence and family issues where people have to live together in the same homes despite any trouble that may be taking place.

Having the ability to resolve conflicts quickly and peacefully would be great in terms of the safe village-commune policy because it would reduce instances of violence and other crimes that occur between neighbours, community members and families by giving them a means to more easily settle problems as they arise.

Do you see this policy as a reform of the existing justice sector or more like an expansion of it?

I’d say it’s both. This mechanism is a reform in that it will resolve current issues with the courts being overburdened and congested with unacceptably lengthy wait times before trials or even first appearances in some cases.

We just wrapped up a one year campaign to clear the courts’ backlog of cases, which was very successful, but what became clear to us was that our courts are under-resourced and are unable to keep up with the rapid growth in cases and when every problem that occurs – even in cases where it’s a small matter – gets pushed into court.

This causes congestion that could potentially become a crisis where you have total paralysis and it’s unmanageable, and the alternative dispute mechanism can help keep Cambodia from ever reaching the point where the system just breaks down.

And when the courts don’t have to deal with all of these smaller cases they have more time to focus on the big cases and they can do a better job on the important cases with serious outcomes and implications.

When this mechanism goes live what will the immediate impacts of it be for the average person? Will they be aware of it? Encouraged to use it? Or will it be commune officials, for example, who initiate mediation?

Once the mechanism is ready to be implemented, it will be done in an organised manner with institutional mechanisms and rules for its procedures. We don’t have all the details worked out yet but I think probably it will be the case that people in conflicts will be able to elect to bring their disputes to the mediators themselves or local officials who see trouble brewing can take the initiative to invite people to join the process.

After the establishment of this mechanism, we’re going to be providing training so that we have the human resources available to provide these services to people in a professional and efficient way with rules and procedures governing it as well as the means to monitor the quality and effectiveness of the mediation services to ensure they are having a positive impact on people’s lives.

When the system finally goes live, which institutions do you foresee taking the lead with it?

Well, the policy overall for the mechanism is inter-sectorial but the justice ministry is the manager or joint-manager as well as the policy maker responsible for drafting the law. We’ll also be providing the training to the mediators, capacity building, professional resources and we’ll be writing the rules of conduct for everyone involved.

However, the direct practitioners of the dispute resolution mechanism will include officials from at the local level as well as officials from a number of relevant provincial institutions that can provide out-of-court dispute resolution services in their areas of expertise.

When this policy is ready for implementation it won’t be like today where anybody can mediate disputes out of court and it doesn’t matter if they know what they are doing or know anything about the issues causing the conflict. We plan on having mediators with professional skills and training and the recognition that comes with earned expertise.

And we will require accurate evaluation of their job performance, one way or another. Not everyone can do this job and not everyone will be allowed to do this job. It’s too important and sensitive to put in the hands of those who can’t handle it.

So, as you can see, we’ve got a lot of work ahead of us before we’re ready to put this policy into practice. But everyone on the team in the working group is excited about its potential and we’re going to start work on developing the national policy and drafting a law to create a non-judicial dispute resolution that can help keep the peace and provide justice to Cambodians at a local community level.

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