Attempts to introduce dispute resolution techniques into Russia (part of the former U.S. S.R.) and Albania have been challenging. The role of law and the right to resolve disputes, both within the Court System and also outside it, by mediation or arbitration, are severely tested in societies emerging from decades of oppressive rule. But the intense and exhilarating struggle this challenge presents forces us to revisit basic ADR principles and also to understand more clearly barriers to ADR which lie hidden in our own countries.
In order to be able to create the conditions necessary for ADR to succeed, changes are needed in the social and legal systems in post-communist countries so that ADR may offer a viable means of conflict resolution and help to alleviate court overcrowding. ADR projects, including negotiation and mediation, if built with respect for the intellectual struggle for development of a post-communist society, may create not only effective dispute resolution but also build confidence in a re-constituted free legal system.
Conditions in Albania and Russia
Five hundred years of domination by the Ottoman Empire and almost fifty years of domination by an iron-fisted Albanian dictator – Enver Hoxha – brought the judicial system in Albania into disarray. Albania’s post-communist years, starting in 1991, have been rocky and marked by periods of violent civil unrest. All the turmoil of these years has resulted in a judiciary badly in need of rehabilitation, not only to enable Albania to conform to EU standards but also to restore confidence in the law and the judiciary with the populace.
Russia’s post-communist hang-over is accentuated by its fall from a world dominating super power to a third level emerging nation. Unlike Albania, which is prepared to accelerate its legal reform efforts in order to join the European Union, Russia has no such aspirations. ADR will only succeed in Russia if it can be demonstrated that it works for the Russian people. There are worrying signs that Russia is returning to a “safe harbour” of government domination and authoritarianism.
ANALYSIS OF THE SPECIAL NATURE OF POST-COMMUNIST CULTURE IN ORDER TO ENSURE THAT ADR CAN SUCCEED
A. Psycho-Social Aspects of Conflict Resolution Culture in Post-Communist Countries
A country’s conflict resolution culture is influenced by its social and political history. It is beyond the scope of this paper to provide a detailed account of the social and political history in post-Communist countries and its effect on social expression. However, I will briefly outline some common factors arising in states emerging from years of Communist rule and discuss their effects on negotiation behaviour.
1. Authoritarianism
Acknowledging the validity of individual difference is a prerequisite to recognizing the need to resolve conflict. Many years of Communist rule have had the effect of quashing notions of individual difference and thus, drastically influencing ideas and approaches to negotiation.
Although the Communist state has been dissolved in these countries, it is acknowledged that the ethos of Communism still permeates and affects attitudes of the citizenry towards dispute resolution. Cynthia Alkon describes the relationship between Communism and the lack of conflict management skills among citizens of post- Communist countries :
Communist systems did not teach people how to manage and deal with conflict. People learned under these systems that disputes were bad, potentially dangerous, and should be avoided. They also learned that when there was a dispute, those in power won. Power and position were the decisive factors in resolving disputes, rather than justice and law. People did not learn how to negotiate or how to handle an open dispute…. Conflict was “regarded as unnecessary and contrary to the principles of Soviet society.
Communism forbade people to say what they thought or to live as they felt. Spontaneity of any kind could be considered treason or insanity. Communist dogma emphasized the collective rather than the individual. Stress was placed on unanimity and the merging of individual differences . This attitude makes the institutionalization of alternative formal structures difficult because discord is understood as an unacceptable expression of individualism or non-conformity. In post-Communist societies, those seeking private services of a third party to address conflict rather than having a judge or court decide on the issue may be considered a breach of the ideology of communal solidarity.
In a report on findings about teaching the first conflict management courses at a technical university in Russia, Howell and Bystiantsev observed that the younger generation of Russians were caught in a contradictory situation of choosing ‘extreme individualism’ and the socialist concept of ‘liberalism’ that suppressed the rights of individuals in the interest of society.
Furthermore, in many conflict situations, Russians defer substantially to authority and fail to recognize individual rights, particularly the right to express oneself. Russian conflict resolution behaviour has been characterized by some as capitulation and avoidance. Bystriantsev and Howell noted that the phenomenon of totalitarian control “was present from the top down; that a group of students had difficulty understanding that individuals had any right to express their interests to anyone of higher status or in a position of authority including their parents.”
Another indication of the high degree of authoritarianism in post-Communist countries is the lack of legal framework for mediation in Russia. The Russian legal system does not have a law on mediation nor does it have detailed rules of evidence or well- developed case law that protects the interests of parties that participate in the mediation process. The Russian Federation Arbitrazh Procedure Code contains fairly cursory provisions defining evidence. The Code seems to rely on the view that judges are adequately trained to weigh evidence.
Albania has recently passed a Modern Mediation Law based essentially on the latest UNCITRAL Model.
The tendency of post-Communist countries to have an authoritarian culture is an impediment towards the implementation of a successful ADR program. People in post- Communist countries may be more comfortable with a judge or a court in the resolution of their problems as opposed to a mediator, who has no power to enforce a judgment because of the social tendency to defer substantially to authority.
In Albania, the Gowlings ADR Project (2002-2004) had difficulty in attracting students to the mediation course . Initially, all the proposed students wanted to be an arbitrator, a figure of authority and power.
An additional effect of authoritarianism is that when people in post-Communist countries do enter a mediation, they look to the mediator as an authority figure; they expect mediators to take directive action. As will be discussed later in the paper, the tendency toward authoritarianism is reinforced by the Civil Code that is often the centre of the justice system in post-Communist countries. A way to use the authoritarianism that is prevalent in post-Communist countries as a way of effectively promoting ADR would be to encourage judges in these countries, who are in positions of authority, to refer cases to ADR and publicly promote it.
