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Journal of Dispute Resolution Journal of Dispute Resolution Volume 2012 Issue 2 Article 2 2012 From Noise to Music: The Potential of the Multi-Door Courthouse (Casas de Justicia) Model to Advance Systemic Inclusion and Participation as a Foundation for Sustainable Rule of Law in Latin America Mariana Hernandez-Crespo Follow this and additional works at: https://scholarship.law.missouri.edu/jdr Part of the Dispute Resolution and Arbitration Commons Recommended Citation Mariana Hernandez-Crespo, From Noise to Music: The Potential of the Multi-Door Courthouse (Casas de Justicia) Model to Advance Systemic Inclusion and Participation as a Foundation for Sustainable Rule of Law in Latin America , 2012 J. Disp. Resol. (2012) Available at: https://scholarship.law.missouri.edu/jdr/vol2012/iss2/2 This Article is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Journal of Dispute Resolution by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. File: Crespo FINAL (061113) Hernandez-Crespo: CreatedHernandez-Crespo: on: 6/12/2013 6:17:00 PM From Noise to MusicLast Printed: 6/12/2013 6:21:00 PM JOURNAL OF DISPUTE RESOLUTION VOLUME 2012 NUMBER 2 From Noise to Music: The Potential of the Multi-Door Courthouse (Casas de Justicia) Model to Advance Systemic Inclusion and Participation as a Foundation for Sustainable Rule of Law in Latin America Mariana Hernandez Crespo G.∗ “Let us be dissatisfied until integration is not seen as a problem but as an opportunity to participate in the beauty of diversity.” Martin Luther King, Jr.** “Que el futuro no me sea indiferente (May I not be indifferent to the future).” Mercedes Sosa*** ___________________________ * Associate Professor of Law, Executive Director of the University of St. Thomas International ADR Research Network, University of St. Thomas School of Law, Minneapolis, MN; J.D. Harvard Law School, 2003; LL.M. Harvard Law School, 1999; Law Degree, Universidad Catolica Andres Bello, Caracas, Venezuela, 1996. I would like to thank Frank E.A. Sander and Lawrence E. Susskind for their insightful comments on drafts and for their invaluable guidance as advisors for the UST Inter- national ADR Research Network. My gratitude also goes to the late Wallace Warfield for his insight, as well as for his optimism and efforts to better Latin America through ADR. Finally, I am especially grateful for the helpful comments from Robert M. Ackerman, James J. Alfini, Lisa Blomgren Bing- ham, Cathy Costantino, Jacqueline Nolan-Haley, Richard C. Reuben and Andrea Schneider. Earlier versions of this article have been presented at the Inter-American Bar Association Annual Meeting Section for Judges and Justices in Cochabamba, Bolivia, in 2002; the Law and Society presentation in 2005; the University of St. Thomas Law Review Symposium “Latin America: Economic Development and Social Justice” in 2008; the Summer Workshop at the George Mason University Institute for Conflict Analysis and Resolution (ICAR) in 2010; and the symposium “Alternative Dispute Resolution and The Rule of Law” of the CSDR of the University of Missouri School of Law in 2010. ** MARTIN LUTHER KING, JR., A TESTAMENT OF HOPE: THE ESSENTIAL WRITINGS AND SPEECHES OF MARTIN LUTHER KING, JR. 251 (James M. Washington ed., HarperOne 1986). *** MERCEDES SOSA, SOLO LE PIDO A DIOS (Polygram 1994). Published by University of Missouri School of Law Scholarship Repository, 2012 1 File: Crespo FINAL (061113) Journal of Dispute Resolution,Created on: 6/12/2013 Vol. 6:17:00 2012, PM Iss. 2 [2012], Art. Last2 Printed: 6/12/2013 6:21:00 PM 336 JOURNAL OF DISPUTE RESOLUTION [Vol. 2012 TABLE OF CONTENTS I. INTRODUCTION ................................................................................................. 337 II. WASTED POTENTIAL: THE EFFECT OF EXCLUSION IN LATIN AMERICA ........... 343 A. The Context: Prevailing Exclusion ............................................................. 343 1. The Invisible Majorities .......................................................................... 344 2. The Exclusion of the “Have-Nots” ......................................................... 345 B. The De Facto Responses to Exclusion: Reactions of Citizens and Caudillos (Political Strongmen) ................................................................................. 346 1. Citizen Responses: Riots, Immigration, Guerilla Insurrection, Drugs, Corruption, and Hopelessness ................................................................ 347 2. The Caudillo de Turno (Strongman of the Moment): Wasting Social Capital and Furthering Political Instability .......................................... 347 C. The De Jure Responses to Instability: ADR in the Context of International Efforts to Promote Rule of Law .................................................................. 350 1. Efforts to Promote Stability through Democratic Processes ................... 350 2. Strengthening Rule of Law through Legal and Procedural Reform, and Access to Justice through ADR .............................................................. 352 a. Rule of Law: A Multi-Faceted Term .................................................. 353 b. Access to Justice as an Essential Requirement for Rule of Law ......... 358 c. ADR in Relation to Rule of Law: An Ongoing Debate ...................... 360 d. Efforts to Promote Rule of Law through ADR in Latin America ....... 363 III. ADVANCING SYSTEMIC INCLUSION THROUGH PARTICIPATORY CONFLICT RESOLUTION: TAPPING INTO THE POTENTIAL OF THE MULTI-DOOR COURTHOUSE MODEL IN LATIN AMERICA .................................................................................. 370 A. Harnessing Social Capital through Participatory Conflict Resolution ...... 370 B. Participatory Conflict Resolution in Latin America: The Contribution of the Multi-Door Courthouse Model ................................................................... 376 1. Origins and Development ....................................................................... 377 2. The Implementation of the Multi-Door Courthouse Model in Latin America: Oficinas Multi-Puertas (Multi-door Offices) and Casas de Justicia (Justice Centers) ....................................................................... 378 C. The Untapped Potential of Casas de Justicia in the Promotion of Systemic Inclusion ..................................................................................................... 392 1. Encompassing All Citizens and Integrating the Mainstream and Marginalized Local Practices of the Invisible Majorities ....................... 393 2. Promoting Citizens’ Decision-Making and Problem-Solving Capacities in Private Conflict Resolution..................................................................... 394 3. The Potential of Casas de Justicia to Include Collaborative Governance ............................................................................................. 398 D. Utilizing Latin American Building Blocks .................................................. 400 1. Increasing the Number of Casas de Justicia and Expanding their Connection with the Judicial System ...................................................... 400 2. Adapting the Role of the Multi-Door Screener into a Conflict Assessor to Strengthen Citizen Participation ............................................................. 400 3. Linking Conflict Assessors through State and National Forums for the Identification of Systemic Issues and the Development of Best Practices .................................................................................................. 402 https://scholarship.law.missouri.edu/jdr/vol2012/iss2/2 2 File: Crespo FINAL (061113) Hernandez-Crespo: CreatedHernandez-Crespo: on: 6/12/2013 6:17:00 PM From Noise to MusicLast Printed: 6/12/2013 6:21:00 PM No. 2] From Noise to Music 337 4. Addressing the Identified Systemic Issues through Collaborative Governance ............................................................................................. 403 IV. CRITICAL CONSIDERATIONS FOR EFFECTIVE IMPLEMENTATION: STAKEHOLDER PARTICIPATION THROUGH DISPUTE SYSTEM DESIGN AND CAPACITY BUILDING ............................................................................................................. 405 A. National Dispute System Design: Engaging Local Stakeholders in the Decision-Making Process ........................................................................... 406 B. Essential Capacity Building for Stakeholders ............................................ 411 1. Parties: Capacity Building for Decision Making and Participation in Problem Solving ..................................................................................... 411 2. Lawyers: Greater Appreciation for Parties’ Self-Determination and the Knowledge of the Spectrum of ADR Options ........................................ 412 3. Mediators: Capacity Building for Maximization of Joint Gains ............ 413 4. Conflict Assessors: Capacity Building for Root Cause Analysis and Selection of Appropriate Forums ............................................................ 414 C. Foreseeing Possible Obstacles ................................................................... 415 1. Overcoming Resistance .......................................................................... 415 a. Reactions to Change: Fear, Culture, Personality Preferences, Symbols and Images ........................................................................................
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