In our prior discussion in the first chapter, we have seen that ADR is as old as early society. In the old civilization of ancient history the Greek mythology, the laws of Babylonian, i.e. Hammurabi Code (1750 BC), the XII Tables of the Ancient Romans (Table I paragraph 6) and the laws of the Ancient Jewish and the teaching of Apostle Paul ( I Corinthians 6:1-7 ) witnesses the undeniable significant role of ADR in settling disputes of any nature and degree amicably. Those ancient societies were using primitive form of ADR not as an alternative as we used today but as a primary devise to settle disputes.
For instance in the Ancient Far East legal system, i.e. Confucianism, which were used by the peoples of China and Japan , formal complaint before the local chiefs were not prohibited but not advised and encouraged. The societies were tied together by social norms and hence one who brought cases before these chiefs were considered as worthless and who lacks tolerant, and may be segregated from communal life. On the other hand, if one settled his matter amicably by using the informal means he will be uplifted by the community and will be considered as a man of tolerance. The remedy given by the society for such action forced the disputants to look for compromise rather than formal complaint before the local chiefs to get remedy for their grievance of varying nature and degree. This shows us the place of compromise or amicable settlement of dispute plays a significant role in a day to day life of the ancient society and helped them to have smooth relation among them selves.
We the Africans, who believed to be the cradle of man kind, had our long history tied with amicable settlement of dispute. In the Ancient Egyptian history who had more formalized litigation structure as has been written by Mark Andrew “Minor cases were tried by a local council of elders and each town or village had its own local Kenet in charge of legal proceedings. Such case usually involved minor problems, such as default on loans”(Murado P 122). Before the ear(a) of discovery and colonialism, the African continent was ruled by customary practices which had some characteristics in common. Muradu Abdo in his Legal History and Traditions course material best describes this incidence by saying “Conciliation plays a very important part in African law since the community life and group isolation give rise to a need for solidarity. As a result the Africans always seek unanimity through dialogue, since only conciliation can put an end to disputes” (Page 80). This was alternative to the possible complaints that might be lodged before the local or village chiefs. Each practice of the Africans was filled with traditional beliefs based on a common sense of right and wrong I settling disputes.
As part of the long African history, Ethiopia had practiced traditional ADR in her long history. As it is true in most of the ancient society, local chiefs who are known by different names in different localities like clan leader, village heads etc are local governors with extended privileges. They are mostly nominated by the will of the kings or leaders of the country or community as the case may be. Thus, they were seen as representative of the one who nominate them, i.e., the king, and are the right hands of the king to enforce decree, levy and collect taxes, secure peace and stability with in their local jurisdiction. The traditional obligation or privilege in the view of some historians, of the king were unlimited and were extended to issuing laws, enforcing it and adjudicating disputes. The kings used these local chiefs to take care of all these obligations in the remote areas, including the settlement of disputes. Thus, formally, when these local administrators try to resolve conflict, they were acting not in their individual capacity, but rather in their official capacity as a magistrate. They used the customary laws, religious beliefs and their own sense of right and wrong to settle the matter. Even the decisions of such type were appeal able to the next higher administrator or sometimes to the king directly. The king himself hears some firs instance litigation and appeals. Because it was the traditional obligation of the kings to make sure that justice had been done in his empire. In Ethiopian history this was the fact before the formal establishment of courts in the 1940’s and after that in some localities.
The above discussion gives us some light about the administration of justice our early history. But this was not the only means of settling dispute and making justice. The formal adjudicative function of the governors in their different hierarchy contributes only for the settlement of some of the disputes. Most of the disputes were settled by elders, religious leaders, like priests, or clan chiefs elected by the community.
There are two views as to the development of proceedings which are called ADR these days. Some scholars said that ADR is the primitive form of litigation and so is the earliest mode of adjudicative litigation. But most of the scholars do not agree with this opinion and rather, they said, ADR is an independent form of dispute settlement which is different from adjudicative form of litigation and developed independent of it. The proponents of the second view agree with the opinion that says ADR developed much earlier than adjudicative and authoritative form of litigation. But they are saying that this does not mean that the two proceeding developed together. This argument can be raised in same way in the development of Ethiopian legal system. While entertaining cases did our elders acting authoritatively? Does it had adjudicative in nature or compromise? Do the parties had the right to go for appeal from the decision of the elders? The answers for these questions will probably lead us to decide whether ADR developed independently or is part of adjudicative litigation. The fact is in the administration of justice, cases of any nature had unlimited opportunity to go for appeal to doors of the king.
Before the 20th century where there were customary laws prevailing all over the nation, different localities had their own ways of dispute settlement inherent in their identity with out reaching their local governors. These means used the elders or “SHIMAGILE”, which are the most respected and wise part of the society because of their status or age, as an intermediate. The powers of the SHIMAGILE’s were limited on persuading the disputing parties to compromise their matter. These intermediates were wise and persuasive enough to succeed backed by the norms of the community. We will discuss the customary ways of dispute settlement later which is still prominent in some parts of the society making life easier.
As a result of formal establishment of institutions in the second half of the 20th century like courts with state nominated judges and administrators nominated by the state, the roles of customary ways of dispute settlement became absolutely alternative.
At the time when we establish formal administration of justice due cognizance has been given to these alternative means of dispute settlement. The 1950’s and 60’s codes have in its different parts dealt the most widely used ADR types, i.e., Arbitration and Conciliation, as an alternative to court litigation. This is an evident to show that these alternative means grow parallel to formal adjudicative litigation system. The coming section discusses them a lot.