Establecimiento de Procesos Ambientales

If as you have seen above disputes and conflicts are the natural result of man's existence in society, the way each society resolves or settles the disputes and conflicts among its members goes a long way in establishing democratic, authoritarian and totalitarian systems.

In the book of Genesis we read about one of the oldest methods for the resolution of disputes and conflicts among members of society. In Genesis (4:9) we read "And it came to pass, when they were in the field, that Cain rose up against Abel is Brother, and slew him." We know Cain eventually got a very severe sanction for this act of violence against his brother. 4:22 - 14. However, Cain's action in physically eliminating his brother Abel, stands as the most typical example of the non democratic way of resolving personal disputes: the offended party or parties resorting to personal violence to settle their differences either of opinion or of interest.

In traditional African societies the typical manner of settling disputes was to take them to the elders or age grades depending on the issues and interests in dispute.

In most cases differences over land or inheritance would be settled by the family Heads or the village Elders, while matters relating to community service, honesty and integrity were handled by the various age grades.

The hallmark of a democratic society, however, is the essential fact that all individuals and groups explicitly shun the liberty or license to take individual arbitrary actions to settle their disputes and conflicts of personal disputes. Rather, all agree that all disputes and conflicts of interests among them need to be referred to special individuals or institutions specially created to meet that challenge. That institution is the judiciary or the courts. It is the courts that inquire into questions as to whether a matter that is in dispute appertains to the realm of public or

private law, the type of remedy that needs to be applied and the sanction that needs to be imposed on the offender.

It is for this reason that the judiciary and especially an independent judiciary is usually considered one of the most important ingredients of a democracy. In a real or figurative sense, citizens repose on a democratic system depends more or less on the confidence with which they view the courts and justices of the country. The problem of the use of the courts as the principal method of resolving conflicts is that litigation is often a long and tedious process. The technicalities of procedure and language, the costs in money and time as well as the more fundamental cost in terms of polarisation of parties are experiences, which the litigant could avoid. (Guobadia 1998: 137). It is in the light of such costs that the writer we have just quoted proposed the following alternative dispute resolution mechanisms that can be employed in a democratic society.

1. Negotiation 2. Mediation 3. Arbitration.

4.0 CONCLUSION

The hybrid processes are made up of:

(a) private judging [ sometimes called rent a Judge];

(b) neutral expert fact finding;

(c) The Mini. (Idem P.139 -140.)

What is significant about each of these five or more alternative mechanisms of dispute resolution is the fact that none of them grants to the parties involved the freedom to resort to individual violence, in the procedures they employ to reach a peaceful settlement of matters in dispute. Herein perhaps lies one of the facts that it essentially forecloses the resort to individual violence as a viable option for resolving interpersonal disputes in the community.

Like all modern societies, democratic societies are characterised by a high degree of conflicts arising from divergent objective social and economic conditions.

However the distinctive feature of a democratic society is the resort to personal violence as a procedure for resolving inter personal and inter group dispute where the process of litigation shows itself too cumbersome or slow to meet all the challenges of a modern society, it has been suggested that at least five additional or alternative members

be employed namely: negotiation, mediation, arbitration conciliation and the hybrid processes of private judging, neutral expert fact finding, and the mini - trial.

It may interest you that the alternative dispute resolution mechanisms list above for the pacific settlement of domestic conflicts or disputes are the same procedures outlined for use in the pacific settlement of international disputes.

5.0 SUMMARY

At the end of this third module of the attitudinal and behavioural characteristics of democracy that are often not written down in various national constitutions but which often underpin any democratic society.

These are namely the principle of tolerance for opposing and conflicting views, the pluralistic conception of society, popular opinion and majority rule and finally the pacific settlement of disputes.

As we saw in this last unit, the resort to personal violence is a major feature of non-democratic societies, which in the democratic societies such inter personal and group disputes are usually resolved by litigation in the courts. However, process has increasingly led many democratic societies to adopt some additional or alternative mechanisms for resolving disputes known as negotiation, mediation, arbitration, conciliation and the hybrid processes of private judging neutral expert - trial. It may be useful for you to note that each of these processes or mechanism has a very peculiar feature that sets it apart from the others.

The process of the negotiation can simply be described as a process in which the parties to a dispute engage in a direct communication in which they try to identify their main interests and the various options available for maximizing or (increasing) the doses to each side.

Agreement is usually reached when both sides move some distance to meet each other half way.

Mediation, a peaceful means of resolving disputes usually involves the action of a neutral third party who assists the parties in dispute to arrive at a mutually acceptable decision. The essence of mediation is the fact that, both parties cannot on their own reach a decision. The mediator usually serves as a catalyst in the negotiation between the parties in dispute by either encouraging them, providing new information, by helping to explain the views of the parties to each other and carrying out other facilitative actions.

In the case of arbitration, a third party is usually appointed by both parties or is provided for by law so that parties in dispute can present their arguments and proofs, after due examination of which the arbitrator now makes " a decision that is binding on the parties."

Conciliation consists in the use of the help parties to a dispute to arrive at an agreement that does not have the binding force of law.

It is important however to emphasise that the rising cost of litigation and the slow process that litigation takes as well as the rising of corruption and disobedience of court orders and corruption may all combine to force the ordinary or common man to prefer these alternative mechanisms of conflict resolution rather than the judicial system, here in Nigeria.