FOCUS ON

FOCUS ON

A cross examination of the UN’s formal and informal justice systems
Judge Joelle Adda, President of the UNDT and Ms. Shireen Dodson, the UN Ombudsman review each other’s systems
1 Oct 2021

How do you view each other’s justice system?

Joelle Adda (J.A.) From my point of view, the objectives of the formal and the informal systems are very different, but complementary. The powers of the UN internal justice system are limited to the review of the legality of certain individual administrative decisions, and its power is limited by the scope of its judicial review, defined by the statute of the Tribunal and the procedures provided for or specified in its rules of procedure. As a result, the Tribunal cannot do more than rescinding an administrative decision if it is unlawful and, if necessary, award compensation. The Tribunal is bound to reject an application if it is non receivable or if the impugned decision is found to be lawful.

The mediation service does not judge the merits of a case, but tries to find an amicable solution if possible. This “shuttle diplomacy between the parties” of the Mediation Division can help it to find amicable solutions in certain specific cases, in which the skill of the mediators and their knowledge of the whole institution can help to “getting to a yes”.

Some cases are more likely to be resolved than others in informal dispute resolution discussions under the auspices of the Mediation Division of the United Nations Office of Ombudsman and Mediation Services. This is valid for cases in which discussion between parties, with the help of a trusted third party, makes possible a give-and-take approach.

The Mediation Division can be useful to resolve tensions between colleagues or between supervisors and supervisees due to the behavior of one or both of the parties. Therefore, it can “avoid unnecessary litigation”, to put it as the General Assembly did, in cases concerning performance appraisals, unwanted reassignments or cases in which the post of a staff member holding a continuing or a permanent appointment, has been abolished and it is difficult for him or her to find a new post in another service or agency.

For the parties, the search for an amicable solution through the informal system also has the advantage of avoiding the risk of an appeal against the judgment. However, for most disciplinary cases, non-selection cases or cases concerning entitlement, which imply a legal determination, the parties expect a judgment, because what is at stake is only a legal issue.

Shireen Dodson (S.D.) The two parts of the UN’s system of Justice, the formal and the informal, are indeed two complementary parts of a larger whole. The whole, in this case, is more than the sum of its constituent parts.

The formal system interprets the rules of the Organization, helps to clarify any ambiguities in the application of the rules and establishes criteria for fairness.

More importantly, however, the formal system establishes important benchmarks that help parties involved in a dispute understand their BATNA (the Best Alternative for Negotiated Agreement). In other words, what other alternatives are available to the parties if negotiations reach an impasse or possible solutions are outside the legal realm.

Legal counsel for both staff and the administration are important partners in this process of helping parties understand not only their alternatives but also the risks involved in pursuing one course of action over another. Parties that comprehend both the alternatives available to them and the risks involved in those alternatives often are the first to see mediation as a viable alternative. The formal system is integral in establishing the framework for understanding those alternatives and risks.

What are, in your view, the main obstacles that deter staff from resorting to the justice system that each of you represent?

J.A.) As for the Dispute Tribunal, the main obstacle is probably that staff members ignore even the existence of the Tribunal and, even if they know it, have no clarity as to what kind of decision can be challenged before the Tribunal, and when.

Although progress has been made by publishing a Toolkit for self-represented litigants on the Office of Administration of Justice (OAJ) website, it remains difficult for prospective litigants to understand the applicable rules before the Tribunal. And, in any event, prospective litigants would first need to be aware of the existence of the website.

The best response would be to provide and disseminate information about the internal justice system as widely as possible among staff. Another obstacle is certainly the fact that, as a general rule, judgments are published on the OAJ website with the names of the applicants.

Article 11.6 of the UNDT Statute and, in analogous terms, art. 10.9 of the UNAT Statute, provide that: “The judgements of the Dispute Tribunal shall be published, while protecting personal data, and made generally available by the Registry of the Tribunal”, article 26.2 of the Rules of Procedure of the UNDT provides that “The judgements of the Dispute Tribunal shall protect personal data” and article 20.2. of UNAT Rules of Procedure foresees: “The published judgements will normally include the names of the parties and shall be available at the Registry of the Dispute Tribunal”. However, the jurisprudence of UNAT is more reluctant to protect privacy of the applicant.

We believe that better protection of personal data would be easily achieved by granting anonymity to applicants, which would avoid deterring the applicant from challenging decisions before the tribunal.

S.D.) This is a great question, and in fact, the informal system has seen an upward trend in usage since its establishment. But of course, we would like to see more staff and managers knock on our doors.

I think that often the choice of how to address conflict has to do with how individuals generally make decisions and come to conclusions. I recently read about a great psychological experiment that illustrates how human beings tend to over-estimate their chances of success. What I took away from this reading is that over-estimating one’s own chances of success in litigation can happen very easily and that it may be one of the reasons why staff and managers first do not make use of the informal system. This phenomenon is made even more acute when strong emotions are involved.

What I am saying is that we should be aware of the mental shortcuts that seemingly allow us to solve problems and make judgments efficiently. When making important decisions, I would advise staff and managers to entertain all options carefully. Working through various options is one of the first things that we do when staff come to see us. These option-generating conversations have proven very helpful to staff in helping them make the best decision for themselves even in the face of limited information or uncertain situations.

What are the synergies that you would like to establish between the formal and informal systems of justice?

J.A.) As mentioned above, informal dispute resolution can be helpful for some categories of cases. But, for the good of the parties as well as for the efficiency of the Tribunal, it would be best that such a process occurs as soon as possible when the dispute arises. Once an application has been filed with the Tribunal, a referral for mediation requires a “joint voluntary request by the parties”, and the Tribunal cannot force the parties to consider a recourse to the informal system.

This is why, when the judge assigned to a case considers that mediation would be appropriate, from the start of the case management, he or she would issue an order inviting “both parties to consider resolving the matter amicably”, insisting that “such outcome saves the parties, as well as the Organization, valuable time and resources and inspires a more harmonious working environment”.

Sometimes this works well, especially when the judge orders the parties to file a co-signed statement with a consolidated list of agreed and disagreed facts, forcing the parties to discuss among themselves, which may encourage them to try to quickly find amicable settlement.

However, it is regrettable that the parties often consider the possibility of resorting to mediation only late in the process. This leads to the loss of valuable time by the Tribunal. If the parties request belatedly that the Tribunal refer the case to mediation which, and, after a long suspension, the mediation does not succeed, with the case returning to the Tribunal, it creates a backlog.

Therefore, a good solution would be to better disseminate the role of the mediation office among staff members.

S.D.) I have been thinking of what needs to be further nurtured to allow both the formal and informal systems to produce a combined effect greater than the sum of their separate parts. My answer has two parts. First, it involves helping parties better assess the various alternatives open to them in resolving conflicts, to better understand how to manage risks and uncertainty and processes that allow parties to express and acknowledge their emotions while making the decision that best suit them.

However, one other item that is often under-valued in the decision-making processes involving conflicts are working relationships. As we have conducted our workshops on dignity, one of the points that have been raised consistently by participants is the importance of interdependence in the acknowledgement of dignity. One of the members of our team, summarized the importance of interdependence (as expressed by the workshop participants) in the following way: “See the connectedness of all people and how your very existence relies and impacts on the existence of others. In an inter-dependent world where all is connected, treat others with respect, care and compassion.

Recognise we all belong to the same human family sharing the same fundamental human needs. That, therefore, what we do to another, we do to ourselves.” While helping parties to understand alternatives and risks is important, preserving working relationships is often excluded from the decision-making calculus. I would like to see the enhancement of working relationships be given greater weight in all the factors that the parties consider when seeking conflict resolution alternatives.

* Prisca Chaoui is the Editor-in-Chief of UN Today. Prisca Chaoui est l'Éditeur en chef du UN Today.
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