ارزیابی تجربی از تاثیر حل اختلاف رسمی در مقابل حل اختلاف غیررسمی بر فقر: رویکرد دولت بر اساس

Based on governance-related criteria, this article provides the empirical jurimetric verification of the how, where, when and why alternative dispute resolution (ADR) mechanisms provide efficiency enhancing channels to redress grievances in less developed countries. Based on data collected in 16 developing jurisdictions through a representative sample of poor rural households, the analyses contained in this paper identifies criteria within which ADR enjoys a comparative advantage over court-based formal dispute resolution procedures. The piece further addresses comparative and competitive aspects of formal versus informal dispute resolution and provides policy recommendations in order for the state to “assimilate” lessons drawn from the functioning of informal mechanisms.

Democracy functions as a system in which formal and informal institutions serve the purpose of translating social preferences into public policies. Dispute resolution mechanisms are among these institutions. Enhancing the effectiveness of these mechanisms enables the judicial domain to better address social preferences through public policy.3 An essential part of the process of improving the ability of dispute resolution to perform this function involves ensuring that the institutions responsible for the interpretation and application of laws are able to serve those people who cannot find any other way to redress their grievances and solve their conflicts.4 To minimize cultural, socio-economic, geographic and political impediments to access to its services, the judiciary must adopt the most effective substantive and procedural mechanisms for reducing the transaction costs faced by those seeking to resolve their conflicts. If barriers to the judicial system affect the socially marginalized and poorest segments of the population, one can anticipate greater social and political conflict, social interaction becomes more difficult, and disputes become more costly.5 It has become clear that a centralized “top-down” approach to law making in developing countries has resulted in a rejection of the formal legal systems by marginalized elements of the population. These people perceive themselves as “divorced” from the formal framework of public institutions.6 The “divorce” reflects the gap between “law in the books” and “law in action” found in most developing countries. Because of this gap, large segments of the population who lack the information or resources to surmount significant substantive and procedural barriers pursue informal means to redress their grievances. In practice, informal institutions provide an escape valve for certain types of conflicts. Yet many other types of disputes, some involving fundamental rights and the public interest, go unresolved. This state of affairs undermines the legitimacy of the state, hampers economic interactions, and disproportionately burdens the poorest segments of the population.7 This paper uses jurimetric analysis to identify the links between access to dispute resolution mechanisms and its impact on the poorest segments of the population of three legal jurisdictions in Colombia.8 It then assesses the parallels between the economic barriers to access conflict resolution in Colombia with similar data collected in sixteen other countries. We proceed as follows. We first provide a conceptual framework addressing the interaction between formal and informal institutions dedicated to providing this service. We then review general aspects of the Latin American dispute resolution system to provide a context for our case study. We examine three cases that offer insights on the patterns of demand for formal and informal dispute resolution. These involve survey samples of the rural population in Colombia’s Andean region, where 70% of the nation’s population lives. We select two rural areas within the Department of Boyaca, Pauna and San Pablo de Borbur. These two jurisdictions have experienced relatively low levels of violence and guerilla activity compared to the rest of the Andean region. We compare these two regions to a third rural jurisdiction in Socha (Colombia), where less violence than other regions is experienced but where neither formal nor informal dispute resolution mechanisms function effectively. We then develop substantial evidence supporting our hypothesis that, in relation to the formal court system, informal dispute resolution mechanisms are a relatively preferred choice to resolve land disputes due to their governance-related advantages such as lower average costs of access and their more positive effect on household wealth amongst the poorest segments of the rural population.

This study introduces a methodology that identifies and assesses links between access to dispute resolution mechanisms and its impact on the poor. It can be applied in other contexts and countries through the use of both objective and perceptional survey indicators such as the ones presented here. Furthermore, the empirical methodology presented in this paper provides an innovative policy-related tool that allows for the monitoring of how the use of dispute resolution mechanisms (or any other public or private institutional framework) affects the most marginalized segments of the population. From a policy perspective, our analysis suggests the general desirability of informal dispute resolution, if only as a way to compensate for the ineffectiveness or absence of state provision of this service. At a minimum, our argument indicates, states should not seek to repress informal dispute resolution except in areas where a public monopoly over ex ante guidance is exceptionally important. In many instances, states also should buttress informal dispute resolution by lending official sanctions to its outcomes. This is not unprecedented. A useful example is international commercial arbitration, a dispute settlement process that most states have made a treaty commitment to respect. The treaty requires signatories to withhold public dispute resolution in connection with arbitral disputes and to lend their enforcement resources in support of arbitral awards.47 We recognize a theoretical counter argument, based on concerns about path dependency, against tolerance of informal dispute resolution.48 An obvious instance, and one our empirical study exemplifies within the Socha Jurisdiction in Colombia that is not uncommon elsewhere, would be the absence of any effective public provision of dispute resolution. Once in place, the valuable information generated by an informal system—the ex ante guidance—becomes an obstacle to subsequent public provision. Because switching from one system to the other would entail an opportunity cost, equal to the value of the ex ante guidance provided by the informal system, innovative state officials seeking to build up a state system would face a structural impediment. Yet, in most instances state providers of dispute resolution can appropriate the value of ex ante guidance generated by informal systems through straightforward incorporation strategies. Most US states did something like this at the time of their creation by directing their courts to follow the English common law as it then existed.49 The first Russian civil code similarly sought to incorporate European civil law norms into a completely novel legal environment.50 Yet, it is useful to remember that the benefits derived from ex ante guidance, unbiased determination, and reinforcement depend to some extent on the reputation of the dispute settlement system in question. A track record makes it easier to decipher the implications of any particular action and thereby amplifies the action’s consequences. Systems that have no track record must invest more to achieve the same effect.51 Colombia’s imperfect democracy needs to find innovative ways for individuals to redress their grievances. We have identified the main institutional advantages of the informal dispute resolution mechanism used by the poorest parts of society in several rural jurisdictions in Colombia’s Andean Region. As stated above, these informal mechanisms have a limited role in generating ex ante guidance for those disputes where high social value is attached for raising important legal issues that ought to be resolved in a definitive manner. Yet, the particular comparative advantages of these informal mechanisms that our study has identified, stress the relevant role that bottom up informal institutions have in raising the living standards of the most marginalized segments of a rural population. This relevance is greatly magnified when the decisions made within informal dispute mechanisms is recognized and utilized by state authorities. The comparative advantages of these alternative dispute resolution mechanisms can also serve as a basis for future efforts to reform the formal court system. Corresponding author contact information Corresponding author. Tel.: +1 804 989 1395. 1 This paper is the consequence of jurimetric policy analysis conducted by Edgardo Buscaglia in 37 countries worldwide, 17 of them also included as part of the analysis contained in this paper. Professor Buscaglia wishes to thank Maria Dakolias (The World Bank) and the United Nations for helpful support in the development of this and other related work-products. 2 The two co-authors owe a debt of gratitude to all those colleagues providing valuable comments and suggesting improvements to this paper during seminars held at Hamburg University School of Law (Germany), ENA (France), University of California at Berkeley (USA), Ghent University (Belgium), at the 2002 Annual Meeting of the European Law and Economics Association held in Vienna (Austria), and finally to the two anonymous referees of this paper. 33 For Chart 1, the survey question reads as follows: Do you and/or your family experienced any geographic, cultural, informational, economic, or any other barrier impeding your access to the following public services: water, electricity, gas, health, housing, education, trash removal, private property registries, police, prosecutors and the courts. The survey question linked to Chart 2 follows the survey question for Chart 1 and reads as follows. Please identify the obstacles you face in accessing the courts from the list below (the list is contained in Chart 2). Chart 3 is generated from the replies to the same survey question used for Chart 1. 34 Id. 3 See Buscaglia, Edgardo. (1996). Introduction to law and economics of development. In Buscaglia, Cooter, and Ratliff (Eds.), Law and economics of development. New Jersey: JAI Press. 4 Id. at p. 56. 5 Id. at pp. 24–29; Cooter, Robert. (1996). The theory of market modernization of law. International Review of Law and Economics, 16(2), 141–172. 6 The principal proponents of the earlier “law and development” movement include Seidman. Robert, B. (1978). The state, law and development. New York: St. Martin’s Press; Galanter, & Marc. (1974). Why the ‘haves’ come out ahead: speculations on the limits of legal change. Law and Society Review, 9(1), 95; Trubek, David. (1972). Toward a social theory of law: An essay on the study of law and development. Yale Law Journal, 82(1), 1. These authors generally promoted comprehensive and centralized reform through legislation that would achieve modernization of public and private law through international transplants from “best practice” legal systems. 7 See Buscaglia, Edgardo, note 1 supra, at pp. 24–29. 8 This paper is the product of a larger jurimetric study covering seventeen countries. Partial results of this study are shown below as part of our analysis. 9 See Buscaglia, Edgardo, Robert Cooter, & William Ratliff (Eds.). (1996). Law and economics of development. New Jersey: JAI Press–Elsevier Science. 10 Robert D. Cooter. (2000). The strategic constitution. Princeton, NJ: Princeton University Press. 11 Ehrlich, Isaac, & Richard A. Posner. (1974). An economic analysis of legal rulemaking (Vol. 3). Journal of Legal Studies, 3(2). 12 Bernstein, Lisa. (1996). Merchant law in a merchant court: Rethinking the code’s search for immanent business norms. University of Pennsylvania Law Review, 144, 1765; Greif, Avner, Paul Milgrom, & Barry Weingast. (1994). Coordination, commitment and enforcement: The case of the merchant guild. Journal of Political Economy, 102, 745; Hadfield, Gillian K. (2001). Privatizing commercial law. Regulation, 40(1); Landa, Janet. (1981). A theory of the ethnically homogenous middleman group: an institutional alternative to contract law. Journal of Legal Studies, 10(2), 349; Parisi, Francesco. (2001). The formation of customary law. George Mason University Law and Economics Research Paper Series Paper No. 01-06, 2000; Sources of law and the institutional design of lawmaking. George Mason University Law and Economics Research Paper Series Paper No. 00-42. 13 Id. 14 Refer to Buscaglia, Edgardo. (1999). Judicial corruption in developing countries: Its causes and economic consequences. Essays in Public Policy. Stanford, CA: Hoover Institution Press. 15 Refer to Buscaglia, Edgardo, & Maria Dakolias. (2000). An international comparative analysis of court performance: A descriptive and analytical account. Legal and Judicial Reform Unit Technical Papers. Washington, DC: The World Bank. 16 Mahoney, Paul B. (2001). The common law and economic growth: Hayek might be right. Journal of Legal Studies, 30(2), 503. 17 Buscaglia, Edgardo, et al. (2000). Law and economics in developing countries. Stanford, California: Stanford University Press; Buscaglia, Edgardo, Robert Cooter, & William Ratliff (Eds.). (1996). Law and economics of development. New Jersey: JAI Press–Reed Elsevier Science. 18 Buscaglia, Edgardo. (1996). Introduction to law and economics of development. Law and economics of development (pp. 13–18). New Jersey: JAI Press. 19 Buscaglia, Edgardo, William Ratliff, & Maria Dakolias. (1995). Judicial reform in Latin America: A framework for national development. Essays in public policy. Stanford, California; Stanford University Press. 20 Id. 21 Corporacion Excelencia en la Justicia. (1999). Reforma Judicial en America Latina: Una Tarea Inconclusa, Bogota: CEJ (abril). 22 Id. at pp. 178–179. 23 This paper, which is part of a larger seventeen-country study, continues this perspective and defines access to justice as the capacity of a citizen or a legal person, backed by its legally and factually justified motivations, to obtain conflict resolution services either through public or private mechanisms. For more details on the seventeen country study, refer to Buscaglia (2000) supra note 15. On access to justice and ADR, refer to Spain, Larry. (1994). Alternative dispute resolution for the poor: is it an alternative? North Dakota Law Review, 70, 234–241; Houseman, Alan W. (1993). ADR, justice, and the poor. National Institute for Dispute Resolution, Summer–Fall, 56–78. 24 Departamento Administrativo Nacional de Estadistica (DANE). (2000). Una Tipologia de los Municipios Colombianos segun estructuras y Grados de Desarrollo. Government Report: Year 2000: Bogota, Colombia. 25 Departamento Administrativo Nacional de Estadisticas (DANE). (2000). Censo de Poblacion con Ajustes a Junio de 2000. Santa Fe de Bogota, Colombia. 26 Consejo Sauperior de la Judicatura. (2000). Atlas Judicial de Colombia, pp. 23–24. 27 A local Colombian interdisciplinary team conducted the two surveys, with support from the Universidad del Rosario. The first survey was conducted during the period August 1998 to March 1999 and the second survey was conducted during the period August 2000 to January 2001. 28 Camilo Echandia Castilla. (2000). El Conflicto Armado y las Manifestaciones de Violencia en las Regiones de Colombia. Biblioteca par La Paz Tomo I, Bogota: Presidencia de la Republica. 29 Refer to The World Bank. (2001). Study on poverty. Washington, DC: The World Bank. 30 A recent study showed that 79.4% of the small plots suffer from some kind of title-related survey defect. Instituto Geografico Agustin Codzzi (GAC). (2000). Subdireccion de Geografia, Division de Estudios Geograficos Basicos. 31 The samples were designed to allow for a 1.5% margin of error and estimates with a 95% confidence level. 32 Cartas #1, 2 and 3, in Paz Publica: Programa de Estudios sobre Seguridad, Justicia, y Violencia. Mimeo. Bogota: Univeridad de los Andes 1997–1999. 35 Id. at p. 23. 36 Id. at p. 41. 37 All independent variables within the log regression are significant at a 1% level and have been tested to meet all regression requirements, such as testing for lack of multicolinearity and heteroscedasticity. 38 Average total costs include direct costs linked to user charges (e.g. court fees), attorney fees, fees paid to technical professionals (e.g. surveyors), administrative fees, reported bribes, and other direct costs linked to procedural delays. One of our referees observes that ‘for every complainant that benefits, someone else loses out. Perhaps the point is that the losers are not among the poorest groups, so that the welfare loss is to be given less weight.’ Our net worth calculations, however, include the net worth of both parties in the samples land disputes and demonstrate the regressive nature of both direct costs of the formal dispute resolution process and that system's impact on household wealth. 39 In earlier work on dispute resolution by business executives pioneered in the late 1960s and early 1970s by Macauley, Beale, and Dugdale, the use of informal remedies in business disputes was found to be not only the most common approach but also the least costly. Refer to Buscaglia, Edgardo. (1997). Introduction to law and economics of development. In Edgardo Buscaglia, William Ratliff, and Robert Cooter (Eds.), Law and economics of development (pp. 34–39). New Jersey: JAI Press. 40 The data covering number and diversity of dispute resolution mechanisms covering seventeen countries is part of a project conducted at the International Law and Economic Development Center (University of Virginia School of Law). Other variables, such as average total costs of access and resolution of land disputes, abuses of judicial discretion, and procedural times were all derived as part of a jurimetric study in progress. Supra note 15 at pp. 39–45. 41 Spain (1994); Houseman (1993). 42 Id. at p. 1. 43 La Semana, Narcotrafico y Guerrillas: La Prueba Reina. pp. 26–30, April 2–9, 2001. 44 Edwards, Harry. (1986). Commentary—Alternative dispute resolution: panacea or anathema? Harvard Law Review, 99. 45 Spain (1994) and Buscaglia (2000). 46 Buscaglia, Edgardo. (1996). Justice and the strengthening of democracy. Paper Presented to USAID Conference on Justice and Democracy, Quito, Ecuador, August 7–9, 1996. 47 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done New York, June 10, 1958, 21 U.S.T. 2517, T.I.A.S. No. 6997. 48 Posner, Eric. A. (1996). Law, economics, and inefficient norms. University of Pennsylvania Law Review, 144, 1697; Roe, Mark. (1996). Chaos and evolution in law and economics. Harvard Law Review, 109, 641. 49 See Posner, Eric. A. (1996). Law, economics, and inefficient norms. University of Pennsylvania Law Review, 144(2), 1697. 50 Id. at p. 1697. 51 This is one explanation for Soviet Russia’s lack of success in incorporating the norms of European civil law. Although the formal requirements of the Civil Code matched those found in other countries, the institutions charged with implementing this body of law were unable or unwilling to mimic their counterparts in the West. Copyright © 2005 Elsevier Inc. All rights reserved.