Monday, November 5, 2018

What Relevance for ADR in situations of Domestic Violence?

This is the sixth installment of a blog series called From the Field. In this series we spotlight stories and insights from former students, friends, and colleagues who are working in the field of dispute resolution. This post is Part I of a two-part post by Stephan Sonnenberg ’06.

 

Domestic violence, as we are all by now painfully aware thanks to the #MeToo movement, continues to be a shockingly widespread and under-reported scourge.

The statistics are sobering: The World Health Organization estimates that over 1 in 3 women worldwide (approx. 35%) have experienced either physical and/or sexual intimate partner violence or non-partner sexual violence in their lifetime, with that vast majority of that violence being perpetrated by an intimate partner.[1] The United States is not exempt from this global trend. In 2010, the Centers for Disease Control and Prevention’s National Intimate Partner and Sexual Violence Survey found that just under 1 in 10 women in the U.S. would experience rape by an intimate partner during her lifetime, and that just under 1 in 4 women and nearly 1 in 7 men would experience some form of severe physical violence by an intimate partner at some point in their lifetime.[2] Nor is the situation any different in Bhutan, where a 2013 survey conducted by the National Council on Women and Children (NCWC) found that approximately 1 in 3 “ever-partnered” women would be likely to experience some form of intimate partner violence during their lifetime.[3] And of course, even a cursory look at the front pages of our newspapers reveals just how widespread the impunity still is for these serious crimes, not just in Washington D.C. and Hollywood, but globally.

Can we do a better job addressing this scourge of daily hidden violence, abuse and humiliation? More to the point: can alternative dispute resolution processes, which here I define as “anything-other-than-formal judicial remedies” play a role in that improved justice response?

Certainly, many in the international human rights or women’s rights community might question the legitimacy of anything other than a formal judicial response to allegations of domestic violence. The authoritative statement to that effect was issued in 2015 by the Committee on the Elimination of Discrimination of Women. This Committee is composed of 23 independent experts on women’s rights from around the world. Together, the committee members are tasked with monitoring the implementation of the Convention on the Elimination of all forms of Discrimination against Women (CEDAW), which establishes the definitive international human rights treaty regime guaranteeing the rights of women and gender equality globally. Periodically, the CEDAW Committee issues so-called “General Recommendations,” (GRs) to address in greater detail an issue to which the Committee believes states party to the CEDAW Convention should pay greater attention.

Of relevance to this discussion, in 2015, the Committee issued GR-33, addressing Women’s Access to Justice.[4] In that general recommendation, the CEDAW Committee dismissed the validity of alternative dispute resolution processes.

“While such processes may provide greater flexibility and reduce costs and delays for women seeking justice, they may also lead to further violations of their rights and impunity for perpetrators because they often operate on the basis of patriarchal values, thereby having a negative impact on women’s access to judicial review and remedies.”[5]

The Committee continued by recommending that states parties:

“Ensure that cases of violence against women, including domestic violence, are under no circumstances referred to any alternative dispute resolution procedure.”[6]

Is that the definitive verdict on the potential for ADR mechanisms to play a valuable role in addressing at least some forms of domestic violence? Does ADR truly have nothing to add?

The CEDAW Committee’s categorical dismissal of ADR’s role seems oddly dissonant with the rest of GR-33’s text. GR-33’s introduction reminds us, for example, that states parties have “treaty-based obligations to ensure that all women have […] access to competent, gender-sensitive dispute resolution systems . . . .[7] In its discussion of access to legal aid and public defense, the Committee also thought it important enough to ensure that such support be available not only in formal judicial proceedings, but at “all stages of judicial or quasi-judicial proceedings, including alternative dispute resolution mechanisms and restorative justice processes . . . .”[8] A page later, the committee recommends that states make available sufficient resources to keep all these dispute resolution mechanisms running effectively, including “quasi-judicial and […] alternative dispute resolution mechanisms” [9]  (emphasis added).

Most strikingly of all, wedged between the two sections reproduced above, the CEDAW Committee adds two recommendations seemingly at odds with the statement that ADR processes should never have a role to play in situations of domestic violence, namely that states parties should “inform women of their rights to use mediation, conciliation, arbitration and collaborative dispute resolution;” and “guarantee that alternative dispute settlement procedures do not restrict access by women to judicial or other remedies in any area of the law and do not lead to further violations of their rights.”[10]

To make matters even more confusing, the CEDAW Committee praises the potential of Ombudsperson’s offices as an important institutional answer to address allegations of domestic violence. GR-33 also devotes an entire section of the report to plural justice systems, which it describes as jurisdictions where “state laws, regulations, procedures and decisions […] coexist […] with religious, customary, indigenous or community laws and practices.”[11] While not blind to the potential for patriarchal values to compromise such customary dispute resolution systems, the CEDAW Committee—in contrast to the sections quoted above—makes a host of recommendations aimed at strengthening the capacity of these mechanisms to provide gender-sensitive dispute resolution services.[12]

How do we make sense of such a seemingly self-contradictory attitude by human rights and women’s rights advocates towards the potential relevance of ADR processes in situations of domestic violence? Is it that the CEDAW Committee members, only approximately half of whom have a legal background, were simply unable to unanimously agree that lawyers with their formal models of adjudication should alone be granted the exclusive prerogative to handle allegations of domestic violence? Or was it that some of the Committee members—mindful, perhaps, of their own diverse backgrounds—felt uncomfortable with a one-size-fits-all description of traditional dispute resolution practitioners premised on the assumption that essentially all informal justice systems are patriarchal in nature, no matter how essential the roles they may continue to play in many traditional communities? What an irony, one might add, that the same General Recommendation that devoted a mere six lines of text to dismiss the potential relevance of ADR mechanisms in situations of domestic violence—blaming patriarchal values—would then devote several pages of recommendations designed to purge the formal justice systems of the world of those same patriarchal values.

In Bhutan, we’ve spent two years working to design a hybrid dispute resolution process that women and men in Bhutan can use to help them address and resolve certain types of domestic violence. We called this new hybrid dispute resolution process the “consensus building initiative” (CBI), and have recently begun to train police officers, domestic violence resource persons, and local administrators on its use throughout Bhutan, a small and mountainous landlocked country wedged between India and China’s Tibetan region in the Himalaya mountains. The Consensus Building Initiative is premised on the idea that there is, in fact, a constructive and positive role for ADR processes to play in a Bhutanese approach to handling domestic violence cases. This conclusion emerged from several months of extensive consultations that the law clinics at Bhutan’s first and only law school conducted in partnership with RENEW, Bhutan’s premier civil society organization devoted to the prevention of Domestic Violence. During those consultations, we spoke with women’s rights advocates, social workers, volunteer counselors, members of Bhutan’s legal and law enforcement community, as well as survivors of domestic violence. Over and again we heard that Bhutanese legal traditions required giving the perpetrator a second chance, certainly in situations of “less serious” domestic violence. We spoke to frustrated lawyers and police officers who lamented their inability to successfully investigate or prosecute alleged instances of economic or emotional domestic violence. We spoke to village elders who complained bitterly that their legitimacy as wise counselors was eroding as a result of being told not to handle family disputes. Most importantly, we spoke to survivors of domestic violence who told us that they would ONLY seek redress from an informal dispute resolution process.

The result of these consultations was the Consensus Building Initiative, which I will describe in more detail in Part II of this post. The initiative is premised on the promise that a dispute system can be structured to be gender-sensitive, responsive to power-imbalances, and in a way that allows the parties to come up with sustainable, equitable, and dignified outcomes to their disputes. Similarly, the initiative is built in the hope that it will represent a real improvement in Bhutan’s ability to quiet the ugly drumbeat of domestic violence.

[1] http://www.who.int/news-room/fact-sheets/detail/violence-against-women
[2] Breiding, M.J., Chen J., & Black, M.C. (2014). Intimate Partner Violence in the United States – 2010. Atlanta, GA: National Center for Injury Prevention and Control, Centers for Disease Control and Prevention.
[3] National Commission on Women and Children (2013). Sexual and Gender Based Violence Study. Thimphu, Bhutan.
[4] UN Committee on the Elimination of Discrimination Against Women (CEDAW), General recommendation No. 33 on the women’s access to justice, 3 August 2015, CEDAW/C/GC/33, available at: https://www.ohchr.org/EN/HRBodies/CEDAW/Pages/Recommendations.aspx
[5] Ibid., at 22.
[6] Ibid., at 22.
[7] Ibid., at 5.
[8] Ibid., at 6.
[9] Ibid., at 7.
[10] Ibid., at 22.
[11] Ibid., at 23.
[12] Ibid., at 23-24.

 

Stephan Sonnenberg ′06 joined the Jigme Singye Wangchuck School of Law (JSW Law), Bhutan’s first and only law school, in 2015. He joined the faculty two years prior to the school’s opening to help with the design of JSW Law’s curriculum and institutional policies, especially those related to its law clinics and other experiential learning initiatives. Stephan previously taught on the clinical faculties of Stanford and Harvard Law Schools, including at the Harvard Negotiation & Mediation Clinical Program (2007-2011). He lives in Thimphu, Bhutan with his spouse and two children.

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