Alternative Dispute Resolution (ADR) basically refers,
“to any
method that parties to a dispute might use to reach an agreement, short of
formal adjudication through the courts.”[i]
The alternative models for the
resolution of electoral disputes are structured in both a temporal and
alternative way. The existence of alternative models implies the existence of an
ordinary one which is not working, an ordinary one which is not producing the
expected results. A main advantage of ADR
is its flexibility and the prospects of providing more timely resolutions to
complaints when compared for example to the courts system.
On the other hand it is arguable that just as
with electoral management bodies, ADR may not satisfy international obligations
of independence and impartiality to serve as a “tribunal” and so it is likely
that the value of ADR is as a complement to other mechanisms to resolve
disputes.[ii] Another limitation of ADR is its traditional
focus on parties reaching ‘mutually acceptable settlements’ versus the more
traditional ‘clear cut’ resolution associated with courts and the ‘winners and
losers’ nature of elections.[iii]However,
if properly designed, ADR can be particularly appropriate and effective in a
transitional context where the legitimacy of state institutions is questioned
or the institutions are weak and ineffective.[iv] In such circumstances, usually,, an alternative model for the
resolution of electoral disputes is formed by special agencies composed of
experts and endorsed by international agencies under the jurisdiction or the United
Nations.
Under such circumstances those in charge of resolving electoral disputes
have to take into account the legal and political customs from every single region.
However, neither due process of law considerations, nor the democratic
principles such as individual rights to free and fair elections must be ignored.
Alternative models for the resolution of electoral disputes have been successfully
implemented in Cambodia, Bosnia and South Africa.
Over time, “In post-conflict
countries, the gradual replacement of ADR by formal complaints adjudication
will contribute to the deepening of democratic processes.”[v]
[i] David Kovick and John
Hardin Young, “Alternate Dispute
Resolution Mechanisms” In International
Foundation for Electoral Systems. Guidelines
for Understanding, Adjudicating, and Resolving Disputes in Elections (GUARDE). Edited by Chad Vickery (United States
of America: IFES, 2011),
229.
[ii] Avery Davis-Roberts, 13.
[iii] David Kovick and John
Hardin Young, 229.
