Public Disclosure Authorized January 2016 Research Report Promoting equity and managing conflict in development Public Disclosure Authorized Public Disclosure Authorized “Come and See the System in Place” Public Disclosure Authorized Mediation Capabilities in Papua New Guinea’s Urban Settlements David Craig, Doug Porter, and Fiona Hukula Justice for the Poor is a World Bank research and development program aimed at informing, designing and supporting pro-poor approaches to justice reform. It is an approach to justice reform which sees justice from the perspective of the poor and marginalized, is grounded in social and cultural contexts, recognizes the importance of demand in building equitable justice systems, and understands justice as a cross-sectoral issue. Justice for the Poor research reports are aimed at development practitioners, partner governments, researchers, and others interested in justice reform. Research reports are reviewed by at least two external referees who are independent of the program. © 2016 International Bank for Reconstruction and Development / International Development Association or The World Bank 1818 H Street NW Washington DC 20433 Telephone: 202-473-1000 Internet: www.worldbank.org Disclaimer This work is a product of the staff of The World Bank with external contributions. The findings, interpretations, and conclu- sions expressed in this work do not necessarily reflect the views of The World Bank, its Board of Executive Directors, or the governments they represent. The World Bank does not guarantee the accuracy of the data included in this work. The boundaries, colors, denominations, and other information shown on any map in this work do not imply any judgment on the part of The World Bank concerning the legal status of any territory or the endorsement or acceptance of such boundaries. Rights and Permissions The material in this work is subject to copyright. Because The World Bank encourages dissemination of its knowledge, this work may be reproduced, in whole or in part, for noncommercial purposes as long as full attribution to this work is given. For permission to reproduce any part of this work for commercial purposes, please send a request with complete information to the Copyright Clearance Center Inc., 222 Rosewood Drive, Danvers, MA 01923, USA; telephone: 978-750-8400; fax: 978-750-4470; Internet: www.copyright.com. All other queries on rights and licenses, including subsidiary rights, should be addressed to the Office of the Publisher, The World Bank, 1818 H Street NW, Washington, DC 20433, USA; fax: 202-522-2422; e-mail: pubrights@worldbank.org. Contact details Justice for the Poor Justice Reform Practice Group Legal Vice Presidency World Bank 1818 H Street, NW Washington, DC 20433 USA Email: j4p@worldbank.org Cover photo: A mediation convenes at short notice in a public market, presided over by the chair of the Village Court. David Craig/Worldbank 2 “Come and See the System in Place” January 2016 Research Report “Come and See the System in Place” Mediation Capabilities in Papua New Guinea’s Urban Settlements David Craig, Doug Porter, and Fiona Hukula Urban Safety in Port Moresby and Lae, Papua New Guinea (P152112) (NL-TA) Acknowledgements The authors acknowledge the support of World Bank Papua New Guinea (PNG) country office staff, without whom this research would not have been possible: Steffi Stallmeister, Walai Tongia, Carol Evari, Serah Sipani, Craig Stemp, Ben Moide, Terence Ua, Eddy Uza, Laena Ricky, Ali Maro, and Margaret Ali. Nick Menzies, Debbie Isser, Michael Watts, and Catherine Anderson provided crucial advice at several stages. In Port Moresby and Lae, thanks especially to Rabura and Keke Aiga, Tony Miria, Anton Guken, Helen Illivitalo, Micah Yosman, Mark Gigmai, Peter Simbago, Francis Kanasi, Doreen Yark, Pitu Mapusea, Mato Posi, Mitchie Ilagi, Don Savi, Levi Johnson, James Kinjin, Martin Solomon, and the many mediators and Village Court magistrates, community police, and market security people from across the city who took time to talk with us. Special thanks to Governor Powes Parkop, Dr. Eric Kwa and Constitutional and Law Reform Commission staff, Ume Wainetti and Enid Balong of the Family and Sexual Violence Action Committee, Temu Alley of the National Capital Development Commission, Sam Geno of the National Coordinating Mechanism, Law and Justice Sector Secretariat, and Bruce Kelly, Team Leader, Justice Services and Stability for Development Program; to the Royal Papua New Guinea Constabulary, including officers at the Badili Police Station; and to Jeff Buchanan, Delilah Sandeka, Kay Kaugla, Steve Sims, Brett McCann, Mike Field, Richelle Tickle, Rod Hilton, Steve Hogg, and Anneke Outred. Peer reviewers were Tess McSpadden, Sinclair Dinnen, and Joan Hoffman. II Contents Acknowledgements...........................................................................................................II Executive Summary.......................................................................................................... V 1. Introduction: the Story in Summary...................................................................................1 1.1 THE SIGNIFICANCE OF MEDIATION TO URBAN SAFETY AND SECURITY ..........................................................................2 1.2 A NEW POLICY ANALYSIS APPROACH: UNDERSTANDING EVERYDAY INSTITUTIONAL CAPABILITIES.............................4 1.3 MEDIATION IN PORT MORESBY’S MIXED SETTLEMENTS: A GROUNDED DEFINITION.................................................. 7 2. Case Studies of Neighborhood Mediation Capability in Port Moresby.............................9 2.1 STUDY LOCATIONS.................................................................................................................................................................... 9 2.2 FINDINGS: WHAT NEIGHBORHOOD MEDIATION DOES, HOW IT WORKS, THE FORMS IT TAKES................................... 10 2.2.1 What it does: neighborhood mediation’s function and efficiency ............................................. 10 2.2.2 How it works:neighborhood mediation’s core mechanisms....................................................... 12 2.2.3 What do mediation institutions look like? Neighborhood mediation’s multiple institutional forms and sites............................................. 20 2.3 DISCUSSION: OVERLAP AND COMPETITION INVOLVING KOMITIS, VILLAGE COURTS, AND THE POLICE............... 24 3. Risk and Problems: Mediation’s Capabilities and Legitimacy in Gender-Based Violence..............................28 3.1 INTRODUCTION.....................................................................................................................................................................28 3.2 MEDIATION, WOMEN, AND GBV.........................................................................................................................................29 3.3 A BETTER ARTICULATION OF TWO-TRACK, VERTICAL, AND HORIZONTAL AUTHORITY IN GBV CASES?......................33 4. Conclusions and Recommendations...............................................................................35 4.1 MEDIATION AND RESTORATIVE JUSTICE............................................................................................................................35 4.2 THE IMPLICATIONS OF MEDIATION’S NATURAL EXPERIMENT IN INSTITUTIONAL CAPABILITY MAKING .....................36 Annex 1: Research Methods...........................................................................................43 III IV “Come and See the System in Place” Executive Summary Although Papua New Guinea’s (PNG) urban settlements and mixed neighborhoods have a reputation for endemic violence, many local observers report some improvements in urban safety and security over recent years. These are attributed to both political-economic factors, including economic growth, an improved employment outlook, and the successful removal of former raskols, or criminal gangs, by business-oriented settlers, and also to institutional factors, such as the failure of criminal gangs to become institutionalized and the ability of local leadership to prevent the escalation of ethnic conflict and youth-related crime. The first phase of research under Urban Safety in Port Moresby and Lae, Papua New Guinea (P152112) (NL-TA) in 2015 was exploratory, intended to guide future engagement under the World Bank’s technical assistance program rather than provide conclusive findings. It comprised over 200 individual and group interviews, conversations, and observations during 2015 with people in Port Moresby’s ethnically and socially mixed settle- ments and villages, including Tokarara, Sabama, and Vabukori (see map in section 2.1). The research applied an “institutional capabilities” approach. Rather than focus on the stigma and govern- ance deficit associated with settlement violence and the weakness of formal law and order, it set out to identify how people create safety by recognizing what already works, day to day, across much of the city, concentrating on two institutions: markets and mediation. This report focuses on mediation in mixed settlements, where the majority of the population of PNG’s cities live. Three dimensions of institutional capability are considered: i) efficiency (accessibility, affordability, timeliness, and sustainability), ii) power and authority, and iii) outcomes and legitimacy. Although the results are preliminary, as this initial investigation focused on “what is there and how it works,” the research reveals significant differences in outcomes for different groups that need further clarification. What is neighborhood mediation? Neighborhood mediation is an established, locally recognized practice in which a community leader or organization brings together different parties in an explicitly neighborhood venue to negotiate and agree on a settlement acceptable to the people living there. This settlement would then be reinforced by these participating actors, producing local “peace and good order.” Consistent with convention, the report distinguishes between the functions and forms1 of mediation institutions. Function refers to the purposes or kinds of disputes that mediation deals with, in other words, the problem the institution aims to tackle. Neighborhood mediation addresses everyday conflicts: youth and ethnic fights, family and marital disputes, and so forth. It is also moving into functionally new areas of dispute over land and property, employment opportunities, and conflicts with public authorities and formal sector commercial actors. Mediation may occur through a range of forms of organization, including local territorial committees (komitis) and courts (cots) operating at various levels of scale, each of which might have a place-specific relationship with the police or other agencies of the state. The report shows that neighborhood mediation is growing in significance to urban residents, who regard it as an effective, legitimate way of handling problems related to prosperity and security. The report also points to a number of challenges. 1 A recent summary of this convention is in M. Andrews, L. Pritchett, and M. Woolcock, “Doing Problem Driven Work,” CID Working Paper 307 (Cambridge, MA: Harvard University, 2015), http://bsc.cid.harvard.edu/files/bsc/files/doing_problem_driven_work_wp_307.pdf?m=1449244234. Mediation Capabilities in Papua New Guinea’s Urban Settlements V How does neighborhood mediation work? Neighborhood mediation relies on the necessity of personal engagement and self-help in sorting out local, family, and communal issues. This means being ready to defend interests by enrolling and mobilizing the support of relatives and ethnic group members. Parties call on their recognized community leaders to assist in resolving a dispute rather than follow a process they are unsure of, such as going to the police. People approach mediation not just as individuals but as a member of a communal group. Each group brings beliefs about both justice in general and how it relates to the particular case. These beliefs and perspectives are explicitly recognized as reflecting the kastom (tradition or custom translated into modern contexts) or pasin (fashion) of the group that reaches back to the rural homeland of the original migrants, for example “pasin bilong Sepik,” or “the Sepik way.” When a relative or friend is involved in a dispute, considerable time and money will need to be invested by others. Local mediation events involving dozens or even hundreds of participants over several hours are common. Because of this heavy cost, there is also pressure to avoid disputes and to respond quickly in the event of a small but potentially escalating incident. Payments of fees embody respect for the authority of the mediators and support for the process. They are often handed over with a word of thanks to the mediator. Mediators set standard fees (30–100 kina [K30–100], or about US$8–40) for a mediation hearing to be paid either in advance or at settlement. Some mediators can ask high fees because of the scope of the authority they bring. Compensation can be considerable, especially where it reflects the expectations of Highlander groups. Neighborhood mediation combines the personal authority of a number of participants, including the two sides to the mediation, their families and kin, and the mediators themselves. At the same time, it invokes and appropriates a range of locally available forms of authority, many drawn from the state. All convene with the aim of reaching a consensus or agreement, and the broad and active participation of stakeholders lends authority and durability to outcomes. The mediators are typically urban communal leaders, now referred to as leadermen (or female leadermeris). Leadermen commonly have the basic respect of both their own ethnic and other local groups and are often appointed by the (urban/ethnic) communities themselves, having already played leading roles in organizations inside and outside the locality. They may be former sportspeople, church elders, community (or badged) policemen, ward councilors or komiti members, business people, or public servants. All of these associations can add to their authority, as can their personal skill and performative prowess, and to the authority of the mediation process itself. What organizational forms does neighborhood mediation take? Mediation processes and mechanisms are expressed through diverse forms of organization operating at significantly different levels of scale. Most prominent are local territorial komitis and courts, in particular the Village Courts, all of which are associated with the police in various ways. Although komitis can perform at a citywide scale, the largest number are found between the ward and its subunits, such as blok (ethnic compound) or street level. Although komitis perform well in representing ethnic differences, at the same time, they are less than inclusive in terms of representation across age, class, or gender differences. Nevertheless, komiti mediation is usually timely, accessible, affordable, and flexible and can happen on the next suitable occasion at any convenient place (for example, Sunday after church, under the large tree). Often, komiti members, or individuals who operate individually as komitis, will be approached to mediate cases. In this, they resemble Village Court magistrates, who often mediate as individuals. This type of mediator will typically ask members of other komitis or people with authority from outside the settlement to join him or her. VI “Come and See the System in Place” The ability for dispute parties to approach individuals like this is crucial to mediation’s self- regulation. Parties in many locations are not strongly bound to individuals or even exclusively to their own ethnic group leaders. They can choose a mediator with a strong reputation, who charges reasonable fees and is available on a regular basis as a local professional with some trappings of official or komiti recognition. That person can then bring in or grasp local or outside authority, creating a team or panel of mediators needed to reach across differences of ethnicity, territory, and class. Village Courts and their magistrates have a significant role in mediation. The courts convene once a week to deal with family and local disputes, that is, disputes arising in their territorial jurisdiction: adultery, violence, swearing, unpaid loans, unruly competition in markets, and youth. Courts routinely combine mediation and adjudication, often within the same case. Outside the weekly sittings, magistrates are often in high demand as mediators by virtue of their respected standing and ability to access and grasp the formal order-writing authority of a gazetted court. Police collaborate and compete with local mediators, offering quick solutions and powerful coercive backup to those who can afford these services. Many police live in settlements, and thus as members of the neighborhood maintain social relations and obligations. Many cases are mediated on the front steps of the police station, often quickly by lone ranger officers operating in neighborhoods regardless of the location of their residence or the station to which they are posted. Competition between different mediators can be seen as having a positive effect in that people are free to choose the most accessible, affordable, and reliable mediator. But it also creates weakness. Police may lack incentives to support local mediators and sometimes be motivated to undermine their decisions. Police involvement in neighborhood mediation thus sometimes adds uncertainty and unpredictability. Table 1. Neighborhood Mediation: Capabilities at a Glance Institutional Efficiency Power and Authority Outcomes and Legitimacy Capability Accessible: multiple local entry Grasp: high local/ horizontal Depends on negotiated, points authority mediated settlement among Affordable Reach: high ability to bridge wide range of people. Komiti mediation Timely; meet as need arises ethnic differences (individuals, panels, Sustainable Grasp: moderate/limited Can be ignored teams) Can offer choice of mediators vertical Self-regulating Reach: moderate/limited across Limited around gender-based class/gender violence (GBV) Moderately accessible Grasp: local leadership and Can combine mediation with Meets weekly vertical state authority adjudication Village Court State-financed magistrates Reach: court orders can reach mediation improve access into families, neighborhoods, Mediation fees can be higher, across differences Moderate outcomes for GBV constraining access Unpredictably quick or Grasp: high formal and coercive Unpredictable, able to be unresponsive Limited access power captured, diverted Police mediation for settlements, higher though Police influence can disrupt still limited for middle classes; Reach: sporadic, resisted in mediation high cost many settlements Limited GBV outcomes Institutional Capability: High Moderate Limited Mediation Capabilities in Papua New Guinea’s Urban Settlements VII How does mediation deal with gender-based violence? The initial research on which this report draws was not designed to assemble the large portfolio of cases needed to assess mediation’s capability around gender-based violence (GBV). However, as GBV features in all forms of mediation institutions, the research was able to ask extensive questions about how GBV comes to mediation and to describe cases whose outcomes raise important questions. It is clear from cases, observations, and interviews that public neighborhood mediation can be a powerful weapon for unmasking GBV abuse and creating a public discourse on the problem (and also for occasioning public shame for the perpetrators). Dealing with GBV, mediation institutions compare reasonably well with the Village Court processes, though they lack the authority to issue court orders and there is no compulsory official female participation. Mediation is regarded as necessary in cases where families as well as individuals are affected and want to have a voice, as it allows time for families to deliberate on and agree to the settlement; without this, the issue will not be resolved. However, mediation in GBV cases also raises problems. Sexual violence cases, which legally should not be heard at the village level, are regularly transacted through mediation, despite the fact that mediation can and regularly does divert formal criminal justice proceedings, even where the victim desires them. This means that cases are heard in situations not primarily focused on the victim’s rights but also on the interests of families, the inherited frameworks of custom, and the need for conflict to be resolved in win-win ways. Initial research suggests that this can weaken the rights of the victim to seek criminal prosecution of, and court order protection from, the perpetrator and often subordinates these rights to the interests of wider family and kin. Although there are some women mediators, the vast majority are men, operating within male-dominated structures (and frequently, local relationships) that are not trusted by or accessible to women and whose processes are not always entirely public. Women in GBV contexts therefore need access to pathways beyond mediation. Two-track proceedings, involving both mediation and criminal proceedings led by police, are seen by many as desirable but in practice are complicated and hard to achieve. The effect of police involvement in GBV mediation is often to divert, or try to divert, a criminal investigation. Conclusions and recommendations The vision of the PNG government’s 2000 National Law and Justice Policy and Plan of Action for building the capability of restorative justice in PNG is being institutionalized within the practices of neighborhood mediation. The longer-term work of nongovernmental organizations (NGOs), including the Peace Foundation Melanesia, also continues to bear fruit. Now is a good time for policy makers to revisit mediation—and especially neighborhood urban mediation—and see how it is functioning, how it may or may not be fulfilling the restorative justice vision, and importantly, whether the positive trajectory can be sustained. The following recommendations are highlighted: • Enable leadermen/meris, mediators, Village Court officials, and district-, ward-, and lower-level governments to consolidate and improve their mediation practices and develop mediation’s scope and reach at the local level. Help them to better define their different roles (mediation, adjudication, arbitration) and levels of authority. Find ways to bring their experiences and “best practices” into the national and regional development of mediation capability. • Ensure that oversight by national policy and regulatory bodies protects neighborhood mediation’s flexibility and inclusiveness. To help achieve this, create a research partnership and capability within relevant agencies, including the Constitutional and Law Reform Commission and the Department of Justice and Attorney General’s Restorative Justice Unit. VIII “Come and See the System in Place” • Create more public awareness of good practices and outcomes from mediation, thereby reducing the stigma of mediation, and building recognition of its capabilities and what makes it work best. • Address mediation’s risk and problem areas, including with respect to serious crime involving GBV. Initiate a policy learning process, critically addressing women’s involvement in GBV mediation, on komitis, and with police. • Explore ways that police engagement in mediation can be addressed to provide more predictable outcomes and minimize the disruption of local mediation processes. Mediation Capabilities in Papua New Guinea’s Urban Settlements IX X “Come and See the System in Place” 1. Introduction: the Story in Summary Box 1.1. A Neighborhood Mediation Case, Observed in Port Moresby, Early 2015 The case this morning is of alleged adultery, a long-term affair, which came to a head two nights ago. The plaintiff and his wife stand opposite each other, across a fenced residential backyard, each surrounded by supporters, with the alleged male adulterer sitting at a third angle of the triangle, next to his own wife. There is a mix of ethnic groups and social classes: the wife is Papuan, holding down a formal sector job; the husband, currently jobless, is from the southern Highlands; her lover, also jobless but educated, is from the New Guinea islands. Nearly 100 people attend. The mediator, an ethnic leader from Morobe province, former sporting great, retail manager, and member of the ward’s law and justice committee, sits up front with his assistant, a local public servant. He stands and slowly rehearses the familiar rules of neighborhood mediation, gesturing over a table piled with case files and a Village Court rule book. He speaks in measured tones, weaving together authority, showing it through the raised platform and stack of files… but also pointing out its true source: “It is the group’s responsibility to come to an agreement; the mediator can only help.” If the groups fail to create the shared authority of a mediated agreement, the case will be referred up to the “full bench”: the local Village Court with its five mandated local magistrates. “All clear on that?” he asks, scanning for nods and bowed heads. “Alright.” Everyone present has been enrolled in the process, from the storytellers to those there to “witness” and add their weight to procedures. Papua New Guinea (PNG) law may not regulate what happens now, but a boundary has been crossed: we are now “in mediation.” Each side tells its story; anyone present is able to speak, for as long as it takes. Stories have been rehearsed; contrasting accounts emerge and are variously corroborated and countered. The wife had not been at the place where they agreed the husband would pick her up because she had been sent across town on work duties, as she had tried to explain on the phone to a husband often violent, now increasingly shrill. The wife later returned by an unusual route “because I was fearful of my husband’s rage” and his jealousy over her alleged lover, a jealousy that had lasted five years. She recounted the public screaming match and ugly beating he gave her when she finally arrived at the bus stop (within minutes of the lover). The lover said little but that he was sick of allegations and wanted the thing cleared up. His own wife sat, silent and embarrassed, beside him. The husband agreed with the lover— it was time for this public shame to end. Just a day and a half later, a summons had convened the sides for a process that for a small fee and the social costs of mobilizing witnesses, would assemble enough authority to avert more fighting between the partners or their families. The two sides address their histories and explanations to the mediator, but he again puts the issue and its questions back to the attendees. “They must be the ones to make this work.” With the lines between the stories clearly drawn, he asks them to break into discussion groups to weigh the evidence. Fifteen minutes later, he asks what the groups have decided. A witness comes forward on the husband’s side, saying she had seen the couple together elsewhere recently. A murmur goes through the crowd; a consensus, already emerging, has been underscored. The husband stands, close to tears, “The marriage is over,” he says. The wife concurs, saying she had wanted it so for a long time. There is a pause of calm, almost shock. The mediator advises the next steps: formal annulment and settlement negotiation to be conducted at the family court, a level higher than the Village Court, based on the mediation outcome. It appears for a moment as if things might end there. But there is animated Mediation Capabilities in Papua New Guinea’s Urban Settlements 1 discussion among the husband’s family, and a woman relative gets to her feet, angry. Lunging, swinging her fists, she berates the wife and her lover for the shame they have brought to his own wife and children but mostly to the husband, long driven to distraction by the affair. She demands compensation for him: “I am going to fight you. I want to kill you. Look what you have done to him. He loved her!” The speaker runs fists high toward the lover, is pulled back. The groups surge toward each other. The mediator shouts for calm; he stands and declares K500 (US$175) immediate compensation to be paid by the wife and the lover to the husband to cover the costs of the family court hearing. The mood changes immediately; the groups back off and confer. The husband’s relatives seek guidance from the mediator as to interim arrangements for residence, children, and household goods, and as to precisely what needs to be paid by when. The relative apologizes to the mediator for the disruption, and the lover goes to the husband and shakes his hand. The lover’s own wife sits, still, alone beside him. People start to leave, talking easily among themselves. Some small banknotes, totaling around K50, are volunteered from both sides, tucked into the exercise book the mediator uses to record the decision. The next event, the handover of a cash settlement for an assault from the Sunday before, quickly takes the stage. 1.1 THE SIGNIFICANCE OF MEDIATION TO URBAN SAFETY AND SECURITY This report examines the capabilities of mediation and security in PNG then is dealing with this basic institutions in mixed settlements where the majority of conflict—its drivers, its effects, and the ways it is the population of Papua New Guinea’s (PNG) largest regulated.4 cities live and work.2 In these mixed settlements, both the formal sector employed (referred to in PNG This challenge is formidable in urban PNG because as “working class”) and informal sector residents live of the ways conflict is embedded in social and other in multi-generational households clustered within differences that the state and other organizations ethnic compounds or sub-ward bloks. They are struggle to regulate. Violence related to ethnic widely stigmatized as zones of illegality and refuges differences is often spectacular; PNG is highly of criminality.3 It is a matter of public record that diverse, and ethnic loyalties are catalyzed by minor minor disputes in these areas—whether between property crime, perceived disrespectful behavior, or buai (betelnut) or street sellers around markets, alcohol-fueled disorder, frequently resulting in deaths groups within a school, parties to a traffic incident, and/or houses being burned. Gender differences, or drunken youths—can rapidly escalate into often involving control of scarce household finances, intercommunal violence. Neither is there doubt that see chronic daily violence covered up inside families family and sexual violence is endemic, as is police and ethnic compounds. Differences might be of age violence. A primary challenge for urban safety (involving older leaders and settlement youth, rivals 2 Mixed settlements in this report refer to areas in which populations are heterogeneous in terms of ethnicity, age, gender, class/social status, livelihoods, duration of residence, and land tenure. 3 M. Goddard, The Unseen City: Anthropological Perspectives on Port Moresby, Papua New Guinea (Honolulu: University of Hawaii Press, 2005). This is a trans-cultural and trans-historical issue, of course; think of the slum worlds of Naples, Paris, or London in the 19th century, or Delhi and Lagos in the present century. 4 This report is the first of a series under Urban Safety in Port Moresby and Lae, Papua New Guinea (P152112) (NL-TA), funded by the Australian Department of Foreign Affairs and Trade. It draws upon and extends recent World Bank analysis of urban safety, security, and crime that includes an analysis of contemporary statistics on crime and violence. See S. Lakhani and A. Wilman, “Trends in Crime and Violence in Papua New Guinea,” Research and Dialogue Series, Socioeconomic Costs of Crime and Violence in PNG, Paper 1 (Port Moresby and Washington, DC: World Bank, 2014); and S. Lakhani and A. Wilman, “Gates, Hired Guns and Mistrust: Business Unusual. The Cost of Crime and Violence to Businesses in PNG,” Research and Dialogue Series, Socioeconomic Costs of Crime and Violence in PNG, Paper 4 (Port Moresby and Washington, DC: World Bank, 2014). 2 “Come and See the System in Place” in school fights, youth cults and gangs), economic range of state regulatory authority and services status (insecure trading by young, informal street (land administration and municipal services, law and vendors), or security of land tenure (where even long- justice, health, education, training, and public works term residents can be driven out without legal employment) has also had limited reach in mixed recourse). These differences are volatile fault settlements. Although the expectation remains lines of violence, magnified in settlements and in strong that at some point the government might relations between settlements and state authority, reach down and provide a durable kind of territorial including police, precisely because they are also security, the reality is that much depends on what embedded within institutions and animate the ways mixed settlement dwellers can do for themselves in which all institutions operate. What this report and on the institutions that they can build up from reveals, however, is that behind the stigma and the various forms of authority and practice that well-publicized incidents, mediation institutions are can be evoked locally. This is not simply local or thriving, and through these institutions, residents of “community” authority; rather, as this report will mixed settlements are engaging with disputes by show, it is embodied in leaders and institutional drawing upon state, corporate, customary, and other forms like Village Courts and komitis (local territorial kinds authority to promote urban safety. committees) as well as practices that assemble and combine every possible element of authority Mixed settlements have long been no-go zones for available, from the state to the individual, via churches, law enforcement agencies. Policing today tends to sports, businesses, police, and the courts. Through occur along the lines of the punitive raid model that these practices, diverse and fragmented authorities targeted recalcitrant local groups and communities are grasped together and enable these institutions during the colonial era.5 In contemporary form, to reach across the differences and regulate the this model of state policing makes a significant contests that often escalate into violence. Mediation contribution to overall levels of violence. The wider is one highly significant example of such regulation. Box 1.2. Crime and Violence Trends in Port Moresby Settlements: Views from Above and Below We can’t see any reason why things could be getting better. The police are still in serious crisis. Crime statistics are hopeless, and murder rates are high. Corruption is everywhere, and institutions are weak. The traditional and village authority breaks down in the urban context, into entrenched ethnic violence. The settlements are still growing: they are still no-go zones and hotbeds of crime and violence. If you think there’s any settlement that is getting better, what’s its name? What could possibly be improving things? Security researcher, Canberra Are things better here [in Sabama, a notorious, ethnically mixed settlement] than they were 10 years ago? Of course. Look around. Ask people. Do you see any raskol [criminal] gangs here? No, you see a few drunken youths. It’s mainly rats and mice we are chasing now. How is that? We did it. The community leaders did it. Community leader, Sabama, Port Moresby Differences and contests, and the crime and violence gendered, or economic, it must be negotiated, associated with them, must feature in the story of maneuvered, and reconstructed as a basis for safety and security in urban PNG. But they are not ongoing competition for oversubscribed assets and the whole story. Whether the difference is ethnic, opportunities.6 Differences do not disappear; rather, 5 S. Dinnen and J. Braithwaite, “Reinventing Policing through the Prism of the Colonial Kiap,” Policing &Society 19, no. 2 (2009): 161–73. 6 J. Holsten and A. Appadurai, “Cities and Citizenship,” Public Culture 8 (1996): 187–204; A. Simone, “Cities of Uncertainty: Jakarta, the Urban Majority, and Inventive Political Technologies,” Theory, Culture and Society 30, no. 7–8 (2013): 243–63; and A. Simone and A. Fauzan, “Making Security Work for the Majority: Reflections on Two Districts in Jakarta,” City & Society 24, no. 2 (2012): 129–49. Mediation Capabilities in Papua New Guinea’s Urban Settlements 3 they provide the institutional bases for establishing a to the question, “how can people live there?” Its new order of security and safety. How this happens aim is to understand “what is in there and working,” and how it might be enhanced by public action in other words, what are the venues and processes and policy are the focus of this report. The research through which people collaborate to deal with concludes that it is the processes in and around problems arising in diverse mixed settlements and local mediation that make life possible in urban what do these arrangements deliver? The report settlements; in other words, these mediation efforts records efforts to “ask the questions to find it” and, are crucial for the production and accumulation of by “seeing it in specific cases,” begins to think about capital—economic, social, and symbolic—in PNG’s options for programmatic support for safety and urban areas.7 security in urban PNG. Safety and security in urban areas have, largely for 1.2 A NEW POLICY ANALYSIS APPROACH: reasons of safety and access, been almost entirely UNDERSTANDING EVERYDAY INSTITUTIONAL unexplored in PNG history. It is thus important to CAPABILITIES stress the exploratory nature of this research. Initial phases of the project, including methods and field Box 1.3. “How Can People Live in There?” activities, were shaped by safety and access issues, notwithstanding that local people themselves Unless you go into an area and know it, you proved exceptionally open to discussion. Findings presented here are based on over 200 individual can’t know what is going on. So, when people and group interviews and observations during 2015 say, “These areas always looks rough, how with people in Port Moresby’s mixed settlements and can people live in there?” Well, there must be villages (see the map and a summary of research sites a system in place, and you’ve got to know in section 2.1 below and Annex 1 for an account of how to ask the questions to find it, otherwise, the methodology, including the various constraints people don’t realize what is in there and inherent in the research). Investigation efforts working. It’s hard to describe unless you see it focused primarily on “what is there and how it works” in specific cases. Mediator, Sabama and sought to understand the range of significant differences in process, form and outcomes, and There’s a song about this: “Kerema yu no savi. participation. Those most closely engaged with the Yu yet cam na lukim.” “You don’t know processes were interviewed: mediators, Village Court Kerema [a provincial town of mixed judges, those participating in and around mediation reputation]: you need to come and see.” events, and so on. Although considerable efforts Community leader, Vabukori were made to validate and triangulate results, the con- clusions and recommendations drawn in the report should be regarded as preliminary and tentative. Rather than focus on the stigma and deficit associa- The experiences recorded show that the extremes ted with settlement violence and the weakness of of crime and insecurity that dominate media formal sector law and order, this report suggests a and outsider perspectives are very real but are different, proactive beginning point that starts by experienced in very different ways by people across recognizing what already works, day to day, across the city, depending on age and gender, wealth and much of the city. It attempts to take seriously what source of livelihood, ethnicity, and the duration of the quotes above exhort: to “come and see the urban residence. Albeit with some strong dissension, system in place” and to provide a positive answer people overwhelmingly reported that especially 7 P. Bourdieu, “The Forms of Capital,” in Handbook of Theory and Research for the Sociology of Education, ed. J. Richardson (New York: Greenwood, 1986), 241–58. This report will not provide a review of the relevant literature except to note that the findings are consistent with reports by scholars on violence in the PNG Highlands and elsewhere in Melanesia. See, for instance, P. Weissner, “Youths, Elders, and the Wages of War in Enga Province, PNG,” State Society and Governance in Melanesia Discussion Paper 2010/3 (Canberra: Australian National University, 2010), http://ips.cap.anu.edu.au/sites/default/files/2010_03_wiessner.pdf; and S. Dinnen, D. Porter, and C. Sage, “Conflict in Melanesia: Themes and Lessons,” Background Paper, World Development Report 2011 (Washington, DC: World Bank, 2010), 18–19, http://web.worldbank.org/archive/website01306/web/melanesia.html. 4 “Come and See the System in Place” over the decade up to 2015, things had variously organizations, local government, Village Courts, and improved; indeed, most were clear in their own committees that have created new forms of urban minds about how change had emerged. association and identity. These act through new kinds of pacts and arrangements, including mediation, to When prompted to explain, some noted changes create local capability for self-regulation. in the political ecology of the city. They cited generational shifts that resulted in youths growing out To relate these developments to a wider set of of crime rather than gangs becoming a permanent frameworks, what is called an institutional capabilities feature of urban life, the maturing of settlements, approach was developed.9 Simply put, this approach the deaths of crime leaders, the cumulative effects addresses the axiom that institutions matter; in of education, the relatively long periods of economic other words, that the capability and legitimacy growth, and the backflow of capital from resource of institutions are crucial for social and economic development projects into urban infrastructure.8 development. This approach draws on current As often, and crucially for this report, people also conventions in institutional analysis (including the pointed to institutional changes in which both the function and form distinction)10 and also provides quality of leadership and maturing of mediation tools to both describe institutions—as purposive arrangements were especially noted. Leadership bundles of rules, roles, and resources11—and then includes both high-profile citywide leaders and evaluate their capability.12 those in neighborhood networks in churches, sports Table 2. Institutions as “Purposive Bundles of Rules, Roles, and Resources”: Basic Terms Terms Defining Questions Examples in PNG Mixed Urban Settlements What problems does the institution respond to? Resolve local disputes (neighborhood mediation) Function What is the purpose of the institution? Secure economic opportunity (local markets) Which different organizations/ agencies perform Komitis, individual mediators, mediation teams, Form that function? Village Courts, police Leaders’ understandings of kastom and other law, Rules What are the rules of the game? Village Court manual, mediation practices Leaders, local authority figures, market vendors, Roles Who is enrolled and how? Doing what? customers, women/mothers, youth Resources How is it resourced? Revenues, taxes and fees, people’s time 8 Since the late 2000s, the city has experienced a significant capital investment spillover from resource development investments elsewhere in the country, most notably the US$19 billion Exxon Mobil/GoPNG liquid national gas project. See C. Rouzet, “Papua New Guinea: the Gas Boom,” Pulitzer Center on Crisis Reporting, June 20, 2013, http://pulitzercenter.org/reporting/china-japan-papua-new-guinea-Exxon- mobile-gas-oil-local-poor-poverty-foreign-executives-gang-slum. 9 This report offers only a summary of this approach. A fuller explanation will be provided in a future report after it has been further refined and tested in Lae under Urban Safety in Port Moresby and Lae, Papua New Guinea (P152112) (NL-TA). 10 This distinction has become clichéd and is often difficult to sustain in practice. However, it can be a useful corrective to the predominant approach in development practice, namely the tendency to evaluate institutions in terms of the presence or absence of formal characteristics thought to define “the right institution.” A recent summary of the emerging convention is in Andrews, Pritchett, and Woolcock, “Doing Problem Driven Work.” 11 See J. G. March and J. P. Olsen, “Elaborating the ‘New Institutionalism,’” in The Oxford Handbook of Political Institutions, ed. S. A. Binder, R. A. W. Rhodes, and B. Rockman (Oxford: Oxford University Press, 2008), 3. “An institution is a relatively enduring collection of rules and organized practices, embedded in structures of meaning and resources that are relatively invariant in the face of turnover of individuals and relatively resilient to the idiosyncratic preferences.” 12 Capabilities in wider social science literature refer to a person or organization’s opportunity and ability to generate valuable outcomes in relation to functions. See A. Apsan Frediani, “Sen’s Capability Approach as a Framework to the Practice of Development,” Development in Practice 20, no. 2 (2010): 185. Mediation Capabilities in Papua New Guinea’s Urban Settlements 5 In part 2 of this document, the core mechanisms parameters of difference (whether ethnicity, class, of mediation institutions are described: the age, gender, or tenure) to include the vulnerable rules, combining kastom (defined as tradition or and to deliver outcomes regarded as inclusive and custom translated into modern contexts) and lay legitimate?13 understanding of common law and fairness, as well as the enrollment of local people and available Grasping and reaching are key terms in the discussion authorities as actors in mediation and the resources of institutional capability in parts 2 and 3. Having available to them (time and money, but also the described how neighborhood mediation works, social capital of kinship bonds and shame). It it is possible to evaluate the outcomes or results. shows how these elements are bundled in different In this section, three dimensions of institutional organizational forms (Village Court, komiti, and capability are apparent: first, capability in relation to police mediation), which overlap, compete, and are efficiency, which in this report is assessed in utilitarian often hard to align. terms: accessibility, affordability, timeliness, and sustainability. Second, capability to grasp and reach: Part 2’s analysis of mediation institutions responds how powerfully does it pull together and reach to two key questions. First, how capable are they of out to enroll, regulate, resource? Third, outcomes: grasping together and reassembling the different, can it right wrongs committed by the powerful often fragmented kinds of authority (ethnic or other (including men), defend the vulnerable against the leadership, custom law) available in neighborhoods? unscrupulous or violent, and bridge rather than And second, how capable are mediation institutions reinforce inequalities of power and gaps in the reach of reaching or extending that authority across the key of public authority? Table 3. Efficiency, Power, Outcomes/Legitimacy: Basic Terms to Evaluate Institutional Capability Institutional Capability Defining Questions Evaluative Questions is the Sum of… Efficiency How efficiently does it do what it does? Is it accessible, affordable, timely, and sustainable? It is able to grasp together and organize rules, roles, and resources? How powerfully does it reach out, Power and authority How powerfully does it grasp and reach? enroll, regulate, and distribute resources across differences? Is it inclusive by enabling access of vulnerable What are its results/ Outcomes and legitimacy people, or exclusive and extractive, favoring outcomes and for whom? powerful interests? It is in the nature of institutions that they will handle but is it the best place for a woman to take family some purposes or functions more effectively than violence issues? Institutions can be highly capable in others and deliver outcomes that serve particular terms of their efficiency or the power and authority interests or powerful groups more than others. In the they wield but still fail on the third dimension same way, the legitimacy of these institutions may be of capability, which is public good outcomes. widely accepted in some domains but be ferociously Family and sexual violence, for example, is an area contested in others.14 A neighborhood mediation where it seems likely that mediation, for all of its komiti may be effective in dealing with ethnic fights, efficiency, grasp, and reach, is not producing good 13 For a framing of the ideas of grasp and reach in terms of the “infrastructural power” of states, see M. Mann, States, War and Capitalism: Studies in Political Sociology (Cambridge: Blackwell Publishing, 1988). The application of Mann’s approach to the conceptual framework of this non-lending technical assistance is dealt with in the forthcoming report on concepts and applied methods. 14 Again, there is a rich literature on this feature of institutions. See, for example, C. Lund, “Twilight Institutions: Public Authority and Local Politics in Africa,” Development and Change 37 no. 4 (2006): 685–704. 6 “Come and See the System in Place” outcomes for women who are victimized, because This report uses examples to elaborate on the often it restricts access to formal legal remedies practices, forms, and outcomes of mediation in and manages domestic disputes within patriarchal mixed settlements. For the purposes of this research, local and family contexts. Here, the unintended the working definition of neighborhood mediation consequences of mediation’s wider success as an is an established, locally recognized practice in institution are apparent, indicating once again the which a community leader or organization brings need to evaluate institutions’ capability within the together different parties in an openly and explicitly political economy and wider power relations. These neighborhood venue to negotiate and agree on a issues are discussed in part 3. settlement acceptable to the people living there. The ensuing settlement would then be reinforced by these participating actors, especially as it contributes 1.3 MEDIATION IN PORT MORESBY’S MIXED to local “peace and good order.” SETTLEMENTS: A GROUNDED DEFINITION Mediation in PNG has sometimes been disparaged This definition aligns broadly with international pers- as a set of local informal arrangements, tolerable pectives on mediation at local levels, sometimes in settlements or as a transitional measure but called “insider” or local, community, or neighbor- ultimately not an effective or legitimate basis for hood mediation.15 It is linked to alternative justice, governing a modern economy and society. This community violence, and wider peacemaking in report demonstrates, however, that mediation is of contexts where formal justice is weak, absent, or growing significance in mixed settlements (see box inaccessible. In three respects, emphases in this 1.4), where an increasing number of urban residents report’s definition may be somewhat distinctive: regard it as an effective and legitimate way of handling challenges to their prosperity and security. First, neighborhood mediation is typically (though not always) public within the locality or settlement in terms of leadership, time and place, the basic Box 1.4. The Rise of Mediation willingness of disputing parties, and the community of people who identify with that locality to collectively Mediation … itself is really taking off, very accept the decision and witness that it has been rapidly, in the last 10–15 years. It’s cheaper achieved through an acceptable process. This public than other law. It’s quick, even compared to aspect is premised on a variously agreed sense of the Village Courts. If you’ve got no money, community as based in public, territorial identity you need all your money for bus fares and legitimately uniting different interests. looking after relatives, you can still afford it, and access it. Mediator, Sabama Second, neighborhood mediation is understood There are more people coming to mediation as a locally authoritative way of grasping together diverse (but locally distinctive) forms of authority: now than ever before. The community are em- local and communal (or as described later, horizontal bracing it, even where it hasn’t been the norm authority) and wider, non-local (vertical) state-related in your area. Now it’s moving into the [middle authority.16 Although bringing them together requires class, formal title] residential areas, like East agency and innovation, these forms of authority are Boroko, Gerehu, Gordons. Police mediator not transitory but are already institutionalized. The 15 There is a diverse and rich literature here: See, for example. S. Mason, “Insider Mediators: Exploring their Key Role in Informal Peace Processes” (Berlin: Berghof Foundation for Peace Support/Mediation Support Project, 2009); UNDP and EU, “Supporting Insider Mediation: Strengthening Resilience to Conflict and Turbulence” (New York and Brussels: UNDP and EU, 2014); J. Suurmond and P. Sharma, “Like Yeast that Leavens the Dough? Community Mediation as Local Infrastructure for Peace in Nepal,” Journal of Peacebuilding & Development 7, no. 3 (2012): 81–86; J. P. Lederach and P. Thapa, “Staying True in Nepal: Understanding Community Mediation through Action Research,” Occasional Paper 10 (Washington, DC: Asia Foundation, 2012), http://asiafoundation.org/resources/pdfs/ OccasionalPaperNo10CommunityMediationNepal.pdf; and American Friends Service Committee, The Local Peace Network Handbook: A Reflection and Action Guide for Local Violence Reduction (Tegucigalpa: Plus Impresos, 2013). 16 UNDP and EU, “Supporting Insider Mediation,” 4: “Insider mediators—working overtly or behind the scenes—use their influence and legitimacy to constructively alter the behaviour, relationships and trajectory of parties in conflict. Using facilitation, dialogue and mediation, they work horizontally and vertically, formally and informally, at local, regional and national levels.” Mediation Capabilities in Papua New Guinea’s Urban Settlements 7 authority and skills of the mediator are crucial, as security within difficult urban settings, but it can also is the personal and communal authority of those be a vehicle for powerful vested interests, for whom present. At the same time, mediation is performed its informality, ease of access, and rapid results are in the shadow and at the edges of the state; though also an opportunity. state authority is evoked, its interests are not primary. PNG neighborhood mediation appropriates and The rest of the report is organized as follows: assembles a composite authority from the different kinds of institutionalized authority available and 1. Part 2 describes the study sites as well as the enacts this largely, but not exclusively, for local institutional functions, rules, roles, resources, and interests. forms of neighborhood mediation and considers their efficiency and power in terms of delivering Third, it remains that neighborhood mediation is outcomes. In the concluding discussion, it con- deeply embedded in the patterns of difference siders the interactions (mutual support, overlap, and inequality (that is, political economy) present in competition) between mediation and formal law the city. This has some advantages. Neighborhood and justice in the context of urban social (class) mediation often provides quick, affordable access relations, informality, and the failure of formal and flexible, restorative win-win outcomes where institutions. formal public authority is absent, unreliable, or not regarded as legitimate. It is clear, however, that in 2. Part 3 focuses on gender-based violence (GBV) most contexts, the efficiency and outcomes—and and raises questions about neighborhood thus legitimacy—of neighborhood mediation are still mediation’s efficiency, outcomes, and legitimacy impacted by the power of more formal institutions in this area. (the police, the local state executive, Village Courts, and so forth), as well as the political economic 3. Part 4 draws conclusions and offers recommen- patterns of ethnic-, gender-, or age-related power dations, including for further activities under across the city.17 Neighborhood mediation can the World Bank’s ongoing technical assistance empower local actors and give them access to locally project, Urban Safety in Port Moresby and Lae, grounded and restorative law and justice, safety, and Papua New Guinea (P152112) (NL-TA). 17 Neighborhood mediation is in many respects a pulling together of public authority that is capable in the absence of the state and is bolstered by references, implicit and explicit, to the “idea of the state.” Neighborhood mediation institutions define their credibility by vindicating their non-state status and, on the other hand, by adopting the administrative regalia of the state (tables, summons forms, orders, stamps, etc.), indicating how the state should behave if it were present. Neighborhood mediation institutions are similar to what are defined elsewhere as “twilight” institutions. See C. Lund, “Twilight Institutions.” 8 “Come and See the System in Place” 2. Case Studies of Neighborhood Mediation Capability in Port Moresby Port Moresby’s expansion over the 40 years since mixed settlements invest heavily in dealing with the independence has seen the growth of mixed settle- situation beyond their compound’s barbwire fence ments that increasingly share three key characteristics. by building business, social, political, and religious First, they are becoming more internally diverse, relationships, affiliations, identities, and connections as several generations of ethnically, socially, and with place and, where they have the means, investing economically varied groups have established en- in private security.18 claves seeking income, status and dignity, and the social, economic, and cultural capital to enjoy a good urban life [Tok Pisin (the lingua franca in PNG): gutpela 2.1 STUDY LOCATIONS sindaun]. Second, although residents brought their Life in PNG’s contemporary cities has not been well diverse rural identities and expectations to the researched, and certainly there exists no comparative settlements, they have since adopted additional, set of studies or a typology against which to reliably urban place–based identities and understandings, choose one locality over another as being more or including about communality and justice. Third, as less representative or reflective of variations across they have matured, the relationships between mixed the city. For the same reasons, it was not feasible to settlements and the wider city have become more pre-identify localities where neighborhood mediation intense and dynamic. As a result, the residents of was more or less efficient, powerful, or legitimate. Map 1. Port Moresby: Downtown and Inner Neighborhoods 18 By the late 1990s, private security had become one of the fastest growing industries in PNG. R. J. May, State and Society in Papua New Guinea – the First Twenty-Five Years (Canberra: ANU-E Press, 2001). Mediation Capabilities in Papua New Guinea’s Urban Settlements 9 Fieldwork was conducted in several locales.19 Two, or compound) levels. Churches, schools, and sport Tokarara and Sabama, are highlighted in this report clubs play an important role in neighborhood life; for two reasons. First, the research team engaged in although there is sporadic fighting between groups these two localities over the most sustained period of of youth, there are no substantial youth gangs. time and thus places the greatest confidence in the Relations with police are characterized by local law findings drawn from these locations. Comparative and justice leaders as “distant.” case studies continue, including in Lae, which will enable the findings in this report to be validated and Sabama. This was established as a low/no covenant for recommendations to be articulated through a (“self-build”) leasehold neighborhood on state land forthcoming Policy Note. Second, although they are to the southeast of the city in the 1960s. After a slow similar in some ways, the two localities mentioned start, it grew rapidly and became ethnically mixed but above are plausibly representative of mixed with a heavy presence of Eastern Highlanders joining settlements in Port Moresby as defined earlier, that the Kerema and Gulf people, adjacent to Motu is, age, duration of settlement, tenure, ethnicity, and Koitabu (indigenous to Port Moresby) communities, so on. However, they became of special interest especially Kirakira. Census figures from 2011 put early in the fieldwork due to evident differences in the Kaugere/Kirakira population (including Sabama) relations between mediation komitis, Village Courts, at 20,759, up 25 percent from 2000.22 Kaugere and particularly the police. It was obvious that these and Sabama have experienced large influxes of differences were crucial to the local institutions’ migrants since the 1970s. The first generations of capability, and they will be explored in future migrants are now grandparents; their children, many publications covering a wider range of sites. of whose children added to earlier problems, are now mature adults. Raskol gangs have been largely Tokarara/June Valley. This is a suburb in Ward Eight overcome by a combination of Eastern Highlander in the Moresby North West Electorate. The wider communal hegemony and the maturing of former Tokarara/Hohola urban population (51,393)20 is the youth leaders and institutions (church, sports). As in largest single area of the National Capital District. But other low covenant and mixed settlements, the Port the smaller scales matter more. Tokarara is a planned Moresby housing crisis means many formal sector suburb established not long after independence employees now live in Sabama, often in large, stable, (1975) to provide low-cost housing for public and extended families. Local law and justice leaders servants. In the past 20 years, a settlement known as remark that they benefit from exceptionally good Gomosasipo21 (sometimes also called New Block) has relations with the local (Badili) police. Local Village been established on the northern fringe of Tokarara Court officials, leaders who include members of the (in an area known as June Valley) under customary Peace and Order Committee, and the police are land tenure. During the 1980s, further in-fill occurred regularly involved in local mediation. as state-owned entities and private companies acquired land for employee housing. Tokarara is more than ever an ethnically mixed area (with large 2.2 FINDINGS: populations of Eastern Highlanders but also Sepiks, WHAT NEIGHBORHOOD MEDIATION DOES, Morobe, and Popondetta people) that combines HOW IT WORKS, THE FORMS IT TAKES untitled, informal settlements and working class and corporate enclaves first developed in the early 1970s. 2.2.1What it does: neighborhood mediation’s Tokarara has a strong Village Court and a range of function and efficiency local komitis operating at the settlement block level The capability of neighborhood mediation derives and even street or “hausline” (neighborhood cluster from both efficiency and its enduring power in 19 Including settlements, villages, markets, and neighborhoods in Tokarara, Sabama, Vabukori, Gerehu, 6 Mile, and Horse Camp. 20 Papua New Guinea National Statistical Office, 2011 National Population & Housing Census, Ward Population Profile (Port Moresby: National Statistical Office, 2014). 21 This is an acronym for Goroka, Morobe, Simbu, Sepik, and Oro/Popondetta, denoting the places of origin of the settlers. According to the 2011 census, Gomosasipo has 370 people, very likely a large under-enumeration. 22 Papua New Guinea National Statistical Office, 2011 National Population & Housing Census. 10 “Come and See the System in Place” achieving its core function, which is the resolution as new trends, in which the problems, scale, and law of local conflicts. In over 40 years of settlement, and justice character of cases handled by mediation mediation has consolidated its reputation within is changing. Thus, it is important to appreciate that mixed settlements as a reliable way to deal with what residents call mediation can include associated neighborhood disputes. Box 2.1 lists the “core regulatory functions of enabling advocacy and business” of neighborhood mediation and then political voice for local people, promoting access draws from a senior mediator’s case records to to justice, ensuring accountability, facilitating com- illustrate what he and other senior mediators regard mercial regulation, and addressing gender equity. Box 2.1. Neighborhood Mediation’s Day-to-Day Scope and Reach • Family, marriage and relationship disputes, adultery, violence: extra-marital affairs, disputes between marital partners/family members over money (including inheritance, shares of windfalls), negotiations over bride price repayment, access to children (after awarding of custody), treatment of different wives in polygamous relationships, daughter’s loss of virginity (and thus bride price), family violence, sexual violence • Fights and ethnic conflict: fights between individuals and groups at schools, markets, and local sports events, and fights and ongoing conflicts between larger groups • Swearing and slander: public or private defamation, talking “baksait” (behind another’s back), spreading gossip, including possible curses, bordering on sorcery • Public order: drunkenness and damage to property, disruption of neighbors and public spaces, youth and children’s public behavior, drunk driving • Personal injury: by accident, dog bite, or children’s activities, or involving vehicles • Loans and money: disputes at the local market or over street selling, loans and repayment, irregularities around sports or other funds • Property: infringement on another’s property, boundary issues, downstream waste or sewerage impacts, rental/tenancy/occupancy disputes, unlawful sale of property The Expanding Reach of Mediation: the Scope of Cases in a Single Port Moresby Mediator’s Casebook • A land dispute, within a single clan, a contest around the mutation and succession of ownership rights • A business dispute, involving a registered (formal sector) company, wherein a manager had taken control over the client list and set up a separate company • A governance dispute, where a government official obtained title to some public land and tried to extract rent from the government agency occupying it; mediator proactively intercedes on behalf of the aggrieved community • A case involving corruption in the issuing of government contracts • A case involving a government electricity utility and a fatality associated with the failure of its machinery Mediation Capabilities in Papua New Guinea’s Urban Settlements 11 2.2.2 How it works: neighborhood mediation’s core mechanisms Self-help and agency in neighborhood law and justice Neighborhood mediation relies on a strong sense of the necessity of personal engagement and self- help in sorting out issues. This means being ready to defend your interests, not least by enrolling and mobilizing the support of relatives and ethnic group members. It means actively recruiting authority figures (community leaders, police) as well as garnering the symbols of authority from outside your settlement (such as a police occurrence book number, a medical certificate from the hospital); it also means moving Two youths reconcile after a compensation payment, agreed the quickly with leaders to set up dialogue, often by an week before. initial exchange of resources (a belkol or “cool the Photo: David Craig/Worldbank belly” payment) that precedes mediation. The basis for these actions has been established protecting their loyalty to those they live with locally by ongoing investment on everyone’s part in local and to the overall processes of mediation that make relationships and in disputes involving others (who this possible.23 What may be most significant about can then be expected to come and support you when the contribution of mediation to urban security and you need it). When a relative or friend is involved in safety is that when conflict arises, mediation enables a dispute, considerable time and money will need voice but contains and manages it within structures of to be invested by others; local mediation events loyalties and authorities, both local to the settlement involving dozens or even hundreds of participants and beyond. Making some exit options harder has over several hours are common. Because of this heavy the effect of making agreements more durable cost, there is pressure to avoid disputes and also to (box 2.2). respond quickly in the event of a small but potentially escalating incident. A dog bite, for example, can quickly prompt offers to pay for medical treatment Box 2.2. Mediation’s Durability and a small compensation payment of perhaps K50 (about US$15). It’s because everyone there [at the mediation] has been a part of it, that’s why it will last. The People’s choices about which mediation organiza- family, the neighbors, the police, the komitis. tions to utilize are both specific to individuals and People want it to be over, for the thing to be their investments in personal relationships and sorted out: they want other people to know deeply embedded in social, ethnic, economic, that is the case. People who know both sides. and geographical relations, including class and Mediation belongs in public, with witnesses. gender. Middle-class people living in Port Moresby’s It’s not something small you can walk away relatively few homogeneous formal suburbs fre- from, and no one will say anything. quently engage with mediation komitis, but they Sabama resident can opt out of (or exit) these organizations because they have the means to rely on the formal system (for instance, the police or magistrate’s court) and private security. People living in mixed settlements As explained below, parties call on their recognized have no such option; they must voice their position community leaders to assist in resolving a dispute and grievance in public, while drawing on and rather than follow a process that they are unsure 23 A. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (Cambridge, MA: Harvard University Press, 1970). 12 “Come and See the System in Place” of, such as going to the police (box 2.3). In some whose involvement will often raise suspicions and instances, this means that mediators and the tensions on both sides. Thereafter, formal mediation community follow the wishes of the disputing parties can happen on the next suitable occasion at any to resolve the dispute out of court and do not refer convenient place (such as Sunday after church, under cases that formal law says should be dealt with the large tree). If things are not concluded then or through criminal proceedings, as is seen below in if they blow up again at that first meeting, which is relation to sexual violence. Often people say “it is not uncommon, the dispute will enter into a longer not a case with others” [Tok Pisin: ino narapla]; they period of informal deliberation between the parties, are most concerned with keeping the peace and not and various possibilities are floated with (and via) causing damage to already strained local relations. the mediators. Actual mediation procedures have a set piece or Box 2.3. We Sort it Out Ourselves staged aspect.24 Both rules and roles are institu- tionalized, that is, routine and predictable, widely If it is a problem that affects my immediate understood, and accepted, and at the same family, I would immediately try and resolve time they are flexible and subject to pressure and the issue within the family–this would be my influence. Summonses, bearing the state-like stamp utmost aim. We want to sort it out ourselves. of (for example) the local Peace and Good Order If we cannot resolve it then we ask a middle Committee,25 may be issued, announcing the time man to come and assist. The main aim would and place and outlining the dispute. On the day, be to resolve the problem and maintain unity formality is established by the senior mediator. Rules and harmony in the family. If it is an issue out- are carefully reiterated at the start of each event, side the immediate family then again I would along with the likely consequences if an agreement seek to resolve the issue and if this does not is not reached. In general, people want and need win-win conclusions and will invest time and money occur, I will bring in the Village Court. If it is an to ensure them and future peace of mind. issue within the community that cannot be re- solved within, then I would refer the matter to Mediation is a performance of carefully staged and the police. Tokarara resident presented storytelling (see box 1.1 above). Emotion too is carefully calibrated to different stages of the mediation process. But mediation is much more than Managing volatile communal emotion: a set of charismatic properties or cultural norms; it is timing, place, and truth telling in mediation an institutional process in which rules and resources Mediation actively manages relationships under are routinely applied. Those crossing the emotional stress. It is often able to both contain and give vent lines (for example, yelling while the other side to strong emotions within a structured environment presents) will be reprimanded by everyone present. and set of expectations about justice and injustice, Provocateurs and hotheads also play important truth and consequence. roles—as in box 1.1, by raising the threat of violence if a good settlement is not reached—but they too Those involved in disputes will act quickly to secure must submit to the rules of engagement. At any both immediate family support and the engagement point, either party may say, “Enough, no point in of a respected leader and mediator. Where there is going any deeper into this, dragging up more anger, a clear injury to one party, some initial payment is let’s settle now.” The mediator needs to be able to needed, even where there is a possibility or likelihood seize the moment at which a genuine settlement that the final resolution may not support the liability is possible and to conclude agreements and bring of one party. This indicates good will and signals proceedings to a close at a point when people will to all that the process is headed for mediation and walk away feeling due process has been served and justice. In this respect, neighborhood mediators have that next steps, such as compensation, have been been more successful than, for example, the police, agreed. 24 On staging and performance of roles, see J. Butler, Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge, 1990). 25 See section 2.2.3 on the various forms of mediation arrangements, including committees/komitis. Mediation Capabilities in Papua New Guinea’s Urban Settlements 13 A law and justice ‘lidaman’—one of a small team assembled for the occasion—leads a mediation in the open air. Photo: David Craig/Worldbank Resources and mediation: compensation and fees registers the painful effects of the wrong done to the Resource transactions, including fees paid for perpetrator and his or her kin. The actual payment consideration of cases or to settle issues collaterally, signifies complete acceptance of both wrongdoing alongside mediation processes and compensation and the integrity of the mediation mechanism. Given payments, play an important part in creating an the humiliating acceptance of shame and guilt as economic imperative and interest in mediation. This well as the financial scale of this investment, it is acts also to draw people to invest in making it efficient crucial that the payment works, that it is accepted and powerful. Actual mediation fees are often paid as a full and final settlement by the injured party and before the mediator pronounces the final settlement its supporters. There is usually a highly symbolic and and certainly well before compensation payments ceremonial aspect to paying the compensation and are made. Payments of fees embody respect for often real relief and joy once it is paid and accepted, the authority of the mediators and support for the even where its cost has been a huge imposition. process, and they are often handed over with a word of thanks to the mediator. There is a standard fee Mediation and heterogeneity: bringing different (K30–100) for a mediation hearing that is set by the traditions together to create composite authority different komitis and distributed among members. Strong ethnic identities and differences can mean Some mediators ask high fees and are able to do that a fight between two drunken youths quickly so because of the scope of the authority they might draws in their direct kin, and trouble flares further as bring. A Village Court magistrate, for example, might members of their ethnic group join from across the charge a higher fee because she is able to issue a city. But in ethnic difference or heterogeneity also lies binding court order in support of the settlement. a possibility of combining different forms of authority Police mediation fees are typically higher than those to create a stronger, wider composite authority that for neighborhood mediators. Larger compensation enables people to incorporate and thus transcend payments usually entail higher fees. differences. Compensation amounts can be considerable, Ethnic identities today reflect features of modern, especially where they reflect the expectations urban, and national life more than they do actual of Highlander groups. Collecting compensation rural or village traditional origins. Arriving in the city, money usually requires both considerable agency a person from a small Okapa village becomes an and humility on the part of the payer and also “Eastern Highlander” or just a “Highlander.” These contributions from (and debt incurred to) kin. modern adaptations of ethnicity enable belonging, Compensation thus exacts the punishment and safety, and access to network benefits, including 14 “Come and See the System in Place” work. In this way, they are akin to other adaptations, this particular case. In the course of mediation, such as PNG’s shared language (Tok Pisin), its these beliefs and perspectives are actively aired widely shared group mobilization arrangements (the and frequently explicitly recognized as reflecting wantok system), and the traditional-modern term the kastom or pasin (fashion) of the group that kastom, often referring to legal usages. Kastom is reaches back to the rural homeland of the original not the same as traditional or customary; it is already migrants: “pasin bilong Sepik,” or “the Sepik way.”26 an urban accommodation and remains flexible and In everyday practice, this recognition is broad subject to change. But just as kastom, Tok Pisin, and brushed, expansive, and flexible; it might relate to wantok systems make mediation possible, mediation the acceptance of polygamy or to the conviction that also plays a crucial role in creating and honoring some ethnicities (for example, “Papuans”) are not these urban concepts and practices, and seeing familiar with large compensation payments. More them used to bridge differences. specific claims are also made about the pasin in a particular place of origin. Much then depends on People therefore approach mediation not just as the specifics of a group’s claims with regard to these individuals but inevitably as members of a communal traditions and the ways these claims are respected group (box 2.4). Each group brings with it beliefs by the other group and the mediators involved. about justice in general and how this relates to Box 2.4. The Story of Urban Modernity in PNG People here are beginning to realize how to live in a community, meaning this: they come from different backgrounds. They are used to those groups, to staying inside those groups, so it’s just Sepiks or Wabags or Gorokas. When they mingle with other groups, like now, it’s different: you go into a space and its different ethnic groups. If anything arises in that space, you solve it then within that: you don’t go outside the place and make all the Chimbus come and fight the Sepiks. You mediate inside instead. You don’t think you are separate from the other groups, that you are a different group. People living inside, now, know each other. If you, me, him are living inside, and someone says “you should not be here,” others will say, “no, he lives here ever since… why should you want him to be gone? Why should you want to get rid of him?” We say, well, if you want compensation, money, a pig, we will argue to the point, and then you leave him alone. So, in a community, everyone is different but they still belong. This mediation helps people to agree, to belong. It’s unique to PNG: 800 different languages! We don’t break them, the cultures; we ensure they enter into society, where it is kept alive, is brought inside. We keep it alive, but inside the community. Two Village Court magistrates in discussion, Tokarara New urban identities, knowing and being known: safety. A newcomer, lacking social support, can be the basis of safety, security, and mediation seen as a legitimate potential victim by people with Day-to-day safety relies on everyday investment a strong territorial sense of identity in streets or in basic relationships that often involve social neighborhoods, as well as in family and ethnic groups. and cultural capital.27 Knowing and being known, maintaining good relationships, and keeping up Safety and security thus rely on the adoption of with community knowledge are basic to everyday multiple forms of urban identity, each of which must 26 See M. Demian, ”Custom in the Courtroom, Law in the Village, Legal Transformations in Papua New Guinea,” Journal of the Royal Anthropological Institute 9, no.1 (2003): 97–115; and C. Filer, “Custom, Law and Ideology in Papua New Guinea,” Asia Pacific Journal of Anthropology 7, no. 1 (2006): 65–84. For international comparatives, see A. Wolfe and H. Yang, eds., Anthropological Contributions to Conflict Resolution (Athens, GA: University of Georgia Press, 1996); and S. Anleu, Law and Social Change, 2nd ed. (Thousand Oaks, CA: Sage Publications, 2009). 27 See P. Bourdieu, “The Forms of Capital,” (see note 7). Mediation Capabilities in Papua New Guinea’s Urban Settlements 15 be invested in (time, money, support) so that it can man, or Mr. Sabama) or “mangi Toks” (a Tokarara be drawn on when needed. Ethnic classifications lad). Attached to each identity are local obligations (Tari, Chimbu, Sepik) are important, but so too are as well as rights and standings, in other words, school cohorts, sports and other (such as political) tangible forms of social capital that can be invested teams, and even street residence (see box 2.5). One in and turned into physical and economic security. might become a “man bilong Sabama” (a Sabama Box 2.5. Local Looksavy: Streets, Teams, and the Significance of New Forms of Urban Identity for Local Law and Justice Before we used to go in ethnic lines, now, we go by street. But it’s the same thing, you have to be in that community to gain that respect. You have to be there, not somebody they say, “she’s just somebody who’s come and gone.” You’ve got no status in the community unless you prove yourself that you are part of there. If you just come up, it’s nothing. People have the influence because they’ve been in the places for a long time. You have the “looksavy” [recognition] in the relationships with people that you build all the time. From that you get the understanding of leadership in the community. That’s how you live here, be safe here. Customer, Tokarara market It’s people’s attitude now—we talk, people comply. Before there’s no law and order. Now with people [market staff and security] picked from the ethnic groups, we stand together, Engan, Kerema... We work as a team. You talk together, that’s your way to do it. Sabama resident We are Tok boys: this market is our place. We are not wantoks, we grew up here together, we became brothers in the same place. Because you live in the same place. He’s Tari man, he Central, he Eastern Highlands. I am one of the people who have been here long term in Tok; I was born here. I’m a Tok man. But so are they. When we were young, we played touch together. Now, we are older, higher status. We still know, we trust each other. It’s not like wantok, we are brothers. So, when we are here together in the market, we are relaxed. Tokarara market man As new urban territorial identities transcend their original ethnic identities (box 2.5), various forms of safety that stem from being known and local can intertwine. Those outside of these networks either face serious security issues (see the examples in box 2.6) or must invest heavily in various other forms of capital, such as the social capital of relationships (with police and community) and/or the physical capital of contracted security (with both police and private contractors), to keep themselves safe. The experience, however, of the local storeowner cited in box 2.6 illustrates that without social capital and investment in relationships—and by referring to locals as “terrorists”—even heavy investment in physical or privately contracted security may not create security. Under the mediator’s supervision, 2 youths reconcile after a compen- sation payment, agreed the week before. Photo: David Craig/Worldbank 16 “Come and See the System in Place” Box 2.6. Investing in Security: Social and Physical Capital Since we installed the “cop shop” around three years ago, there has been no major hold ups. But we experience theft from market vendors and people who live around here. I tell these market people “I am your wantok… if you want food you buy it from me, don’t steal.” Sometimes the young men come and tell me “Allan, I am hungry, I want to eat something.” It is better they ask me than steal. When youth groups have sporting tournaments, I give cartons of water. When there is some religious or community awareness, I allow these groups to connect their sound systems to the shop electricity. Tokarara supermarket owner We have big security issues. Our main problem A mediator’s table bench, and paraphernalia. is the security guards and the “terrorists” Photo: David Craig/Worldbank around here. The security guards do not do their job, they allow people to come in here with their bags and steal from us. Just before of mobilizing funds and, unlike the chief, they do not New Year, the terrorists from this street up acquire authority through hereditary office. They do here came and did an armed robbery. I know need the basic respect of their own and other local it is them because they always go out that groups in order to represent the interests of their way. Local storeowner community in ways that can resolve disputes between parties. They are, in this sense, primarily recognized and appointed by the (urban/ethnic) communities “Ol Lidaman”: themselves, that is, by those who choose to go to The role of community-appointed leaders them to get issues sorted out. Leadermen also Grassroots agency, combined with heterogeneous count personal skill and performative prowess in urban identity, is an essential condition for the mediation as key assets. Many adopt the title “peace emergence of effective mediation. But these are mediator,” which suggests that they have received hinged together by people who are increasingly Peace Foundation Melanesia training.29 referred to as “the leadermen” [Tok Pisin: ol lidaman]. The leaderman appears to be a relatively recent Leadermen also embody authority drawn from identity that expresses the need for mediation across gender (patriarchy), age (gerontocracy), ethnicity, ethnic divides (box 2.7). Leadermen can be male or and class (cultural hegemony). They are expected to female; typically they are also mausman [“mouth represent their own group at the same time as they men”], or good speakers. In contrast to notions of work with other local leadermen to mediate conflict. the bigman,28 they need not be wealthy or capable Here, basic and important questions of legitimacy 28 On bigmen and chiefs, a staple of Melanesian ethnography, see M. Allen, “Elders, Chiefs, and Big Men: Authority Legitimation and Political Evolution in Melanesia,” American Ethnologist 11, no. 1 (1984): 20–41. For a 1990s perspective related to urban crime and settlement, see also M. Goddard, “The Rascal Road: Crime, Prestige and Development in Papua New Guinea,” The Contemporary Pacific 10, no.1 (1995): 55–80. 29 Peace Foundation Melanesia was involved in a long and extensive series of mediation training events across PNG during the late 2000s, supported by the Government of Australia. Although many contemporary mediators were not formally trained by the Peace Foundation, echoes of the language used continue to frame local “best practice” talk in study locales. See http://www.peacefoundationmelanesia.org.pg/. Mediation Capabilities in Papua New Guinea’s Urban Settlements 17 Box 2.7. Community-Appointed Leaders? People coming to the city tend to congregate in their ethnic groups. In the settlements, they live to- gether, but they also live alongside other groups. But to do that you need to have someone who will speak on your behalf, someone you and others can go to. You need that person, they are essential. So the community says, “this is the guy, we give him our blessing, he will be the one to mediate, to negotiate, to settle.” Police mediator The community appoints the leaders, and they become the komiti, or the go-to people when there is trouble. They are not fools, they appoint the ones who have got the wisdom, these are the kinds of people they look at and appoint. There are some registered mediators, I mean registered VC [Village Court] officials, there are others who live in the particular communities, and are selected and ap- pointed by them. If they are selected by the community, that’s alright, we know they are traditionally recognized. But only the VC officials can write formal settlement orders. Should the mediators all be registered? Well, they have to be recognized, that’s most important. And if anything goes wrong… well, perhaps they should be registered for the sake of peace. Village Court official Even if they are not titled as mediators, they are still expected to do the job. So we depend on what are not formal networks; I will ring up a person I know in Tokarara, [VC chair] Mark Gigmai, and he will tell me who are the leaders in that part of the city I need to deal with. It’s not one system; issues can come from anywhere, community, police. But for every police referral, if I get one from the police, I would get nine direct from the person. Police mediator and fairness arise. On balance, although complaints what is seen to have been the case and what needs are common (especially from women, see below), to happen next. Although the mediator might the emergence of leadermen as mediators seems personally embody various forms of authority, what a positive outcome, especially as in many ways it matters most is that s/he is able to channel and appears to be self-regulating, in that people will not grasp the various forms of authority present on appoint or seek mediation from those they do not the occasion itself and ensure that the agreement respect. Since people typically have several different endures beyond the day the agreement is reached.30 possibilities in seeking mediation, an aspect of choice or exit adds strength to self-regulating features. In this sense, mediation contrasts with the court, where the authority that the judge embodies may The co-production of mediation: be exercised in a verdict or decision. Rather, capable grasping diverse forms of authority mediation is achieved through a performance that In urban settlements, leadermen and mediation are assembles as many different forms of authority two sides of the same institution: the leaderman role as possible in support of the consensus over the is crucial to the enactment of the rules of mediation. dispute and a just outcome. All these actors combine The craft of consensus building involves more than their skills and authority to co-produce an institution just getting to an agreed story but also recruiting (mediation) with far more authority than their own or enrolling the agreement and authority of the separate, disparate, and often informal forms of groups and individuals present, both in relation to authority would be able to achieve. 30 The metaphor of “grasping authority” is a convenient but also slightly limiting way of conveying what is implied. As will be explained, it involves (i) collecting and assembling authorities (the classic image of grasping) but also (ii) combining them in potentially new ways, (iii) resulting in the emergence of new forms of authority. The emergence of ol lidaman, a resolutely urban and reportedly recent institutional role, may be one instance of the latter point. 18 “Come and See the System in Place” Table 4. Grasping Authority at Sabama: the Multiple Hats of Komiti Members and Mediators Public Lives Close/ Servant, Village Adjacent Market Including Court/ Law to Central Community Community Retired and Justice Market, Ethnic/ Police/ or Senior Church/ Komiti/ Long-Term Youth Security/ Business Sports Mediator Resident Leader Staff Person Leader CDC* Role Peter √ √ √ √ √ √ √ Tom √ √ √ √ √ √ √ Sarah √ √ √ √ √ √ Mike √ √ √ √ √ Janet √ √ √ √ √ Steve √ √ √ √ Note: CDC*: Community development committee, a quasi-local government agency.31 The grasping of authority in PNG neighborhood apart from state forms of public authority—in mediation therefore has at least three dimensions. other words, autonomous and communal but also connected to vertical power. 1. Horizontal grasping of authority.32 This involves the production of inclusivity and agreement, 2. Vertical grasping of authority. Vertical authority is enrolling the personal and communal authority of an indispensable element in the co-production those affected by and attending the mediation. process because it enables a bridging—a It requires recognition of their relational, syncretic accommodation—between neighbor- communal, and territorial links, their standing (as hood authority and what is claimed to be its representatives of resident ethnic groups, family opposite, namely state and other hierarchical, members, or neighbors) and stakeholding as well publicly recognized institutional authority. as their testimony and witnessing. It recognizes Vertical authority is not therefore the same as their right and responsibility to see justice done the state invoking its authority such as through for their group or for a relative, and their need an announcement or formal sanction; rather, it is as local residents to secure safety for themselves assembled by mediators and through mediation and others. Horizontal grasp and reach across all processes in three main ways: i) by enacting those affected (and the local territory) combine formal links to hierarchies of law and justice all available local authority and enable new (Village Courts, police) or ward- and community- agreements and pacts to be sealed, publicized, level bodies affiliated in some way with the state, and made durable over time (that is, reach). ii) by drawing on the locally recognized regalia Defined in this way, people are consciously of the state (for example, initiation of the Village participating in the creation of forms of public Court order process, use of Peace and Good authority that are distinguished or standing Order Committee stamps and summonses, 31 The CDCs were created as local appendages of urban executive authority and have, under some regimes, such as when Dame Carol Kidu was South Moresby Member of Parliament and Minister of Community Development, been important vessels of patronage by powerful political leaders. 32 UNDP and EU, “Supporting Insider Mediation,” 4: “Using facilitation, dialogue and mediation, [insider mediators] work horizontally and vertically, formally and informally, at local, regional and national levels.” Mediation Capabilities in Papua New Guinea’s Urban Settlements 19 maintenance of court records, ceremonializing their capability in the horizontal and vertical grasping of events and settlements) to bolster mediation of authority that enables them to reach across social procedures, and iii) by linking the local process to differences and into marginal domains—depend the authority of those other (ethnic, community) on their enactment through forms of organization leaders or respected persons (police, visiting at the most appropriate scale. At times, individual guests, leaders and mediators from other leadermen may be the most appropriate scale of neighborhoods, people with bigman or formal mediation institution. In practice, local territorial hierarchical status in sports or corporate fields) committees (komitis) and courts (in particular, Village who attend, often as witnesses of the process, Courts) provide the forms and scales at which most and allow the mediation to piggyback on their neighborhood mediation happens, often with the authority. involvement of local police. 3. The personal authority of ol lidaman (“the Mediation in the komiti: the grasping of leadermen”). This may come from their em- mediation authority into a state-like institution bodiment of various forms of vertical and local Historically, komitis and cots emerged spontaneously horizontal authority or their respect as wearers and, to the dismay of many in the colonial regime, of multiple hats (table 3). Respected mediators in both urban and rural settings during the mid- will go to great lengths to avoid being seen as 20th century.33 Nowadays, most mediation in mixed merely a bossman by garnering their reputation settlements occurs in komitis, though what is meant for sound judgement, personal integrity, and by this term is flexible. As Hukula’s34 research has ability to sum up, communicate to everyone noted, komitis vary in name, definition, and scale of present, manage the process especially when operation. Some law and justice komitis are simply it becomes heated, and deal with conflicted, known as “the komiti”; others are called the hevi potentially explosive situations. This personal, (problem) komiti, or by the prefix blok (subward local embodied authority may take the form of a area) or line (compound or group of houses). The mediation team, panel, or komiti of selected great strength of mediation is that the mechanism leadermen who together supply the composite can be capable across different scales, from disputes skills and standings. at the family level through to large-scale public ethnic disputation, where hundreds of tribally and Crucially, however, no single form of authority is locally affiliated potential combatants from across sufficient in these neighborhood settings to underpin the city can be involved. Komiti can denote collective the efficiency or outcomes of mediation. powers that may be ascribed to an individual (“He’s a komiti”); thus, a member of a settlement’s dispute- 2.2.3 What do mediation institutions look resolution committee may claim, “I am the komiti like? Neighborhood mediation’s multiple at the market.” At the same time, the komiti may institutional forms and sites appear as a “team,” citywide in its authority and The mechanisms and processes described above scope of work and comprised of senior mediators enable mediation to work in the various functions of with a range of skills and backgrounds, with the same dispute management: resolving fights, family issues, premium on reputation and ability to rise above and disputes with commercial or official bodies. The wantokism to deal with everyone fairly as evident at efficiency and power of these mechanisms, however— the smallest scale. 33 Oram’s (1976) history of Port Moresby comments on the emergence (and initial failure) in the 1950s of both councilors and committees in both homogenous and heterogeneous settlements, including June Valley and Kaugere, next door to Sabama. See N. Oram, Colonial Town to Melanesian City, Port Moresby 1884-1974 (Canberra: ANU-E Press, 1976). Goddard’s (2009) history of Village Courts captures much of the pre-independence conservative judicial concern about the kind of justice these komitis and cots were delivering. See M. Goddard, Substantial Justice: An Anthropology of Village Courts in Papua New Guinea (New York: Berghahn Books, 2009). After some official and judicial reticence, Village Courts have been recognized and councilors have become ward-level actors, with various komitis forming at subward levels. June Valley is reputed to have an especially dense formation of komitis. Local explanations of this relate to the agency of the Village Court chair in supporting komiti formation right down to very local levels and in providing support during the tenure of Moresby South MP Dame Carol Kidu as Minister of Community Development, during which time CDCs sponsored many subcommittees, including law and justice. 34 F. Hukula, “Gender-Based Violence and Masculinity in an Urban PNG Settlement” (PhD Thesis, University of St. Andrews, 2013). 20 “Come and See the System in Place” Often, individual komiti members (or individuals Neighborhood mediation and Village Courts who function as komitis) will be approached to Although initially resisted by colonial authorities, mediate cases. In this, they resemble Village Court Village Courts now operate as a genuine local court magistrates when they mediate as individuals. A within a statutory jurisdiction firmly embedded in mediator may enroll others, perhaps other komiti state policy, resourcing, and rules. With trained members or people with authority from outside. The (but formally unqualified) local leaders enrolled as ability for dispute parties to approach individuals magistrates and no credentialed legal representation like this is crucial to mediation’s self-regulation. The allowed, these courts adjudicate (and mediate) parties are not strongly bound to individuals or even based on broad and hybrid understandings of to their own ethnic group leaders. They can choose, kastom and pasin, with frequent reference to the on a regular basis, someone with a strong reputation, published Village Court manual. Magistrates, a clerk, who charges reasonable fees and is available as a and uniform-wearing peace officers (Village Court kind of local professional with some trappings of bailiffs) are chosen from local leadermen, but after official or komiti recognition. That person can then training they are formally gazetted as Village Court bring in and grasp local or outside authority and officials. Like law and justice komitis, Village Courts, create a team or panel of mediators as needed. meeting once a week, deal with family matters, local disputes, adultery, violence, swearing, unpaid loans, Commonly, as neighborhood-scale institutions, unruly competition in markets, and youth issues. komitis will have a chairperson and several senior members, and sometimes teams of other leaders, Magistrates are in considerable demand as who mediate (and adjudicate) through fairly regular mediators, by virtue of their respected standing and public gatherings “under the tree after church” ability to access and grasp the formal order-writing (box 2.7). Although there is a strong territorial and authority of a gazetted court. However, not all Village ethnic basis to their claims to be representative, Court magistrates engage in mediation (and not all they are commonly less than inclusive in terms are asked to), and they do not have the field all to of representation across age, class, or gender themselves. At Tokarara, for example, Village Court differences. Procedures for komiti membership magistrates are, by virtue of both their Monday indeed vary widely, from appointment by members morning Village Court role and the standing it gives of parliament or landowners to more deliberative them, heavily involved in day-to-day mediation local elections and “community appointment” activities away from the immediate court. But they procedures. One way or another, they seem quite keenly maintain the distinction between the Village accessible; every mixed neighborhood seems to have Court and the court-related mediation they do and need komitis, and everyone knows someone on outside the court’s Monday morning sessions as a komiti to whom they can go. What all this means well as other mediations involving non-court actors, for komitis’ law and justice capability (including in including komiti mediation (box 2.8). In fact, they mediation) needs further investigation, as discussed believe it is important to suppress mediation by in the conclusions of this section. non-court mediators, especially where it involves payment of mediation fees. Their assertiveness The proliferation of komitis at different territorial makes neighborhood komiti mediation in Tokarara a levels may reflect the weak “grasp and reach” of little more closely linked to the Village Court than it government or simply that the nature of local issues is in other places.35 and disputes requires improvisation, agency, and the co-production of authority that state institutions The adaptability of mediation’s mechanisms allows it acting alone cannot achieve. For whatever reason, to fit with the Village Court. As in komiti mediation, without formal statutory limits (or financial support), magistrates rely on a grasping of horizontal autho- komitis have served to grasp authority where rity; each has prior standing in the community as needed for local regulation. Never standardized by a church or other community leader, a wise and higher authorities, they remain highly variable in well-regarded person, and a capable mediator and composition and function. judge. But unlike komiti mediation, Village Court– 35 In Tokarara, Village Court officials have actively established komitis, and referral links to the Village Court are reportedly strong. By contrast, in Sabama, senior mediators operate independently and at times resist attempts by the Village Court to supervise their activities. Mediation Capabilities in Papua New Guinea’s Urban Settlements 21 related mediation involves leveraging the formal than top-down judgement, is needed. In this way, vertical authority of the state in more explicit and the Village Court reinforces or embeds the practice plausible ways. Sessions conducted after hours by of mediation. Village Court magistrates will be backed by court orders issued at the next court hearing. Mediations On the other hand, as mediation expands and that fail are referred to the “full bench” of the as actors beyond Village Court magistrates are Village Court and from there can go to the district increasingly involved, competition has become a court. Magistrates also perform mediation within the reality. Competition is given a significant edge by precincts of the Tokarara market and may adjourn the payment of fees to mediators, and this has raised court sessions (coming out from their bench behind the issue of whether Village Court magistrates too the remaining shard of market fence) to interact “in should be paid more for their after-hours work (box mediation” at various points where consensus, rather 2.8—more on this issue below). Box 2.8. Mediation in the Shadow of the Village Court: Co-Production and Competition The full [village] court. That is the rule of law. What we do down in mediation is different: it’s to assist them to come up with a decision. We allow them to talk, and when they get stuck, you give them some ideas. They are the ones who have got to live in here. If they don’t decide on something they are likely to have fights, especially when the men have had a few beers, they’ll fight. So, there has to be a solution. Tokarara Village Court magistrate Komiti here [in Sabama] sits beside the VC; it’s like a community arm, with the VC. They do mediation in the community level, between our people. When community don’t agree with komiti decision, we go to Village Court. Without the VC magistrate, komitis can’t really run a mediation in a community or make a strong decision. The power to rule is with the VC magistrates, not the komiti, not the community, not the mediator. If anything happens, if it goes wrong, the VC magistrates witness the case in the VC or send it to district court. Kaugere Village Court magistrate We always say, “Don’t pay mediation fees”—you don’t know what you will get [for the money]. Village Court magistrate/mediator Neighborhood mediation and the police been formally lodged. Police presence can add Competition and cooperation are also core elements authority and security to neighborhood mediation in neighborhood mediation’s relationship with the processes, either by referring minor cases back Royal Papua New Guinea Constabulary (RPNGC). to the neighborhood (box 2.9) or by attending The RPNGC is intimately involved in mediation at and participating in mediations as co-mediators, the neighborhood level. Whether the “blue shirt” is witnesses, or simply as security figures. Actual police actually present, simply appears as a shadow of the presence at the time of mediation can be the key to law, or is conspicuously absent is crucial, both to the successfully mediating fights between local youths functions that mediation komitis can tackle and to or disputes about theft or damage to property. their grasp and reach capability. Mediation-police links can be direct and personal, as some mediators and komiti members are former Neighborhood mediation happens in the shadow policemen or community policemen or have active of the law, meaning that even when not personally police connections; Moresby’s peak mediation team, present, police are an important point of reference for example, which deals with major ethnic clashes, and potential source of authority. People entering is led by a policeman. Mediation-police links vary neighborhood mediation or taking issues to the locally, depending again on personal connections Village Court will often have already been to the and trust. In Sabama, the personal qualities of the police station and obtained an occurrence book local (Badili) police commander have led to good number, demonstrating that the complaint has relations, strengthening reliance on mediation. 22 “Come and See the System in Place” of komiti mediation. Thus police involvement in Box 2.9. Police Sending Cases Back to the mediation often means that paradoxically, formal Community: Sabama Experiences criminal charges are not pressed. Experiences cited below (box 2.10) reflect the fact that across much If it’s neighbor vs neighbor, we will put it back of Port Moresby, relationships between citizens to the community. If we address it here, it’s and the police are poor—there is little trust on the ok, but it’s actually better fixed if they do it. If community side. Village Court and komiti leaders are we deal with all those cases ourselves, we get likely to cite ways police interfere with or undermine very stressed. It’s basic psychology—the their efficiency and authority. police have to work with the community. Badili policeman [Sabama people] manage their own law and Box 2.10. The Status of Village Court and order issues, instead of giving us a truckload Mediation Outcomes: Mixed Experiences of rabis (rubbish) to deal with. Many big cases, we have to be there just to observe; we have The VC can get the [local] police to execute a presence so we get a good decision. their court orders; they will lock someone up Sometimes we have to advise mediators or if we ask them to. But other places it’s not so people on legal aspects, so the decisions are sure. Sometimes police from outside [i.e., seen to be fair. [The mediators] know when beyond Waigani] undermine us. Even when they can step in. They know where the police the police are just 3–4 feet away from us, they come in. It’s like we are running in parallel; we might as well be hundreds of miles. Village address it in the police way, but we understand Court official/mediator that they will have their own way. It’s not We do not involve the police, they are the last something you can learn at school. So, you resort. If we go to the police, they will send us have to learn it the hard way. back and tell us to sort it out within our Sabama policeman community. We only go to the police when someone has been killed or if it is a very serious matter such as rape. Local resident Police also compete with komitis (and Village I mediate police brutality, family problems, Courts) in mediation by offering quick solutions and fatherless, motherless children; I have a lot on powerful coercive backup to those who can afford these services. Many cases are quickly mediated on the agenda. It’s very upsetting for us when the front steps of the police station by lone ranger sometimes the police don’t do their job officers operating in neighborhoods. properly. The police come around here and they muck it up; they play around with the At the same time, police involvement in mediation law. Village Court official can sometimes have a negative impact. Police Sad to say you can’t trust the police. I can say support or active involvement as a primary mediator may have been enlisted by one side or the other in all honesty, you can’t rely on the police. The of a mediation; in cases of car accidents, for moment you are in trouble, if you want the example, police powers of detention are commonly police involved, whether it’s to mediate or for exercised in support of one party, with the other safety in the mediation or whatever, you need party locked in the cells until compensation is paid, a whole bundle of money. For police, along with “snake money” to the police officer mediation always means money. Every time. concerned. Police can be absent or unresponsive, Always. They will detain you, charge you or or can undermine already mediated outcomes the other guy, depending on who gets to by responding to one side [Tok Pisin: wansait] of them first. Even if it’s just a small thing. If they the dispute. They can also simply drop cases on have got you, just get out of there, get out of komitis that are beyond their capacity or incentive the police station whatever it takes. Village to resolve and thus discredit them, just as the very Court official act of a police referral can bolster the legitimacy Mediation Capabilities in Papua New Guinea’s Urban Settlements 23 On a Sunday, after church, under the big tree. Photo: David Craig/Worldbank 2.3 DISCUSSION: settlements will actively draw vertical authority from OVERLAP AND COMPETITION INVOLVING the ward’s community development committee KOMITIS, VILLAGE COURTS, AND THE POLICE (CDC) or a related law and justice subcommittee.36 Komitis and Village Court magistrates are practiced Although CDCs have been important vehicles for in grasping together authority at the neighborhood political patronage, at present in Port Moresby, ward- level, but they often struggle to turn formal authority level councilor appointments have been delayed, into real authority on the ground. Although the and CDCs have been disempowered or bypassed efficiency and outcomes of komiti mediation are by political leaders. Although komiti members founded on how the komiti grasps horizontal will commonly reference their association with the authority, for some kinds of functions—such as large CDC when verbalizing their list of credentials, it fights, problems involving commercial or govern- does not appear that this association (or its current ment agencies, and also family-based violence lack) grossly distorts, unduly influences, captures, (discussed below)—the ways the komiti grasps or otherwise impacts on the mechanisms of komiti together the vertical or hierarchical forms of authority mediation or the outcomes delivered. Rather, it is can be more important. Three kinds of vertical the “community-appointed” (bottom-up) aspects of authority appear to be most crucial to the outcomes hierarchy and legitimacy that komitis currently rely on. and ultimate legitimacy of neighborhood mediation: 1) the authority derived from the executive and More consequential for capability are the processes legislative organs of state authorities (wards, lower whereby the judicial authority of the Village Court local government, city government, or members of is invoked (or appropriated) by the komiti. The parliament); 2) judicial authority, namely the Village relationship with the Village Court can either add to Courts, and 3) the police. komiti authority (for example, when the possibility of having the case referred upward is invoked) In terms of executive and legislative authority, the or undermine it (when competition between the law and justice komitis of most Port Moresby mixed two emerges—see below). Similarly important are 36 CDCs have been a feature of Port Moresby local government for more than 15 years in some parts of the city. Appointed ward councilors develop and work with ward-level CDCs, which each have a range of representatives and often subcommittees: youth, law and justice, education, health, water, etc. In Lae, elected ward councilors funded by local-level government superintend and resource these arrangements, which involve hierarchies of blok and other komitis. 24 “Come and See the System in Place” the ways that police power is solicited by komiti in some cases to arbitrate when pressures rise. All, in members or by parties in the dispute, is alternately practice, charge fees. kept at bay, or unhelpfully runs riot across komiti procedures. The unpredictability generated by This research has identified a number of ways in police involvement shows that mediation komitis’ which this kind of informality and overlap is an capability depends heavily on how vertical grasping advantage for the (shared) practice of mediation. occurs, that is, whether it undermines, negatively Informality enables the quick grasping of authority, distorts, or positively curtails neighborhood komiti essential in keeping disputes from escalating via work. How these relationships impact on capability ethnic connections. Ethnic, kastom, kinship, and with regard to GBV is considered in part 3. contemporary diversity can be flexibly enrolled and included. People can often choose between Institutional contests: more than one point of resort (police, Village Court, komiti, Village Court, police komitis), according to where they think they and On the face of things, the police and the courts, their supporters can best represent themselves.37 including the Village Courts, are two parts of a unified Informality also means that the boundaries on the justice system supported by the komitis. The formal issues that can be brought into mediation are not rules governing these arrangements should provide greatly restrictive. All of this explains the ongoing clarity, and strengthening these rules and the formal proliferation of mediation in terms of what it does roles and resourcing associated with them should and the forms it takes; it also indicates that informality provide greater neighborhood security. In practice, is crucial to both the efficiency and the successful these different institutional forms both collaborate grasp and reach capability of mediation. (unevenly) and compete over whose rules will be ap- plied and over who will enact the mediation role and However, informality also makes neighborhood get the resources, for example, of mediation fees. mediation practice vulnerable. Association with the village and the settlement means both Village Courts There is much blurring of roles, sharing of rules, and and komiti mediation already have a barrier of stigma tension over resources. At the neighborhood level, to overcome. Informality can be readily associated Village Court mediators do not claim a monopoly with things ad hoc and amateurish, unprofessional over mediation; they too respect the roles and and temporary. By association, Village Courts lose authority of komiti members and will act to support face, recognition, and the respect they see as vital them by providing a regular point of referral for to ongoing public and official support. Komiti komitis and participating in their hearings, as guests mediators feel their motives are impugned by officials or witnesses. Both Village Court and komiti rely on (“They’re just doing it for the fees/compensation”), a combinations of vertical and horizontal grasping, disregard reinforced by the lack of official resourcing with the Village Court holding the advantage of for komitis and their mediation efforts. Komitis formal vertical mandates, while komitis are more constantly have low-value (economic/fees) family local, available, and immediate (although Village transactions referred back to them by police; they are Court magistrates mediating after hours also have commonly in the position of deciding the questions, high accessibility). Cases might be heard in any on balance and given uncertain jurisdictions, turf forum, as the vertical authority of the Village Court wars, and competition, “Do I want the Village Court can be grasped into komiti hearings by having a magistrate in this mediation? Do I need the police?” court magistrate or policeman sit in. Komiti members Village Court magistrates and officials (who get a are often Village Court magistrates (and vice versa); government stipend and official gazetting) lament in fact, komiti and police mediation events resemble the informality of komiti mediation, claiming that Village Courts in many ways, including in elements it lacks credentials, its members are not officially of the proceedings (the regular convening, the panel recognized and gazetted, it cannot issue orders, and it of members, the hearing of testimony), the use of collects irregular fees. When komitis use summonses paraphernalia, and, it was also observed, a tendency and Peace and Good Order Committee stamps or 37 In the influential framing of Albert Hirschman, mediation means local people have choices outside the formal system. These “choice” options are designed to enable people’s “voice,” while addressing all sides in terms of their existing loyalties, which mediation processes harness and rely on to enforce outcomes. See A. Hirschman, Exit, Voice and Loyalty. Mediation Capabilities in Papua New Guinea’s Urban Settlements 25 call themselves cots (courts), komiti mediators are It is important, however, to avoid seeing these stung by Village Court accusations that they are vulnerabilities through the single lens of gaps pretending to have authority that they do not have or shortfalls that can be easily fixed by enacting and are reminded that they are subordinate to the regulation to officially recognize mediators and real system of justice service delivery. measures to certify them, or by directing budget, training, and attention toward them. Informality, which renders komiti mediation most vulnerable, Box 2.11. A Fraught, Fragile Form of Authority? is most needed at the peripheries, in the places that formal and unified vertical/top-down authority seldom reaches or sustains. Criticisms of informality I’m in a part of the Valley, Dorigo-Mafa need to be tempered by a strong appreciation of Street. I’ve been there 25 years. There’s no the failures of the formal system to grasp together real trouble there, I sort it out. We are the authority or reach the vulnerable. leaderman of our community, we deal with these things, but we are not recognized by government. We risk our lives in this work, Box 2.12. Class, Informality, Violence, but the government don’t recognize. We and Mediation don’t want to risk our lives when we are not recognized. Mediators, komiti, we represent Different groups of people take it on them- all races: Kerema, Papua, Highlands. We hear selves to enforce the law or deal with trouble. cases any day, especially the weekend. In the Here at the market or at home with neighbors, afternoon we sit up at place, and people working class [formal sector employed] come. We do it, but we are vulnerable. Who people are offended by the drinking and what knows about this outside? If they do know, it leads to. They take it on themselves to then what happens? Do they support? What enforce good behavior: “If you drink, you do you see? Tokarara leaderman behave!” Well, the illiterates, if they are confronted, they will make an issue out of it I am a senior mediator here. I work across too. They accuse the working class people, the whole city, any time of the day or night. say it’s a monetary thing. Then [the illiterates] But to get to where it’s happening, even to will take it to mediation. The working class major incidents, I have to go by [bus] or walk. people, though, they will just chase or belt What do they expect me to do, fly in? the illiterates. So when we conduct media- Sabama mediator tions, we are dealing with different classes of people: literate and illiterate, different ethnic backgrounds. Sometimes the arguments start at the house, at home, but then they spread out into the market, and the common people Village Court magistrates formally and legally shut get involved. Tokarara mediator out of mediation economies are likely to want to discipline the komitis (and chastise the police) or to offer a superior, competing (fee-charging) mediation service, though linked via the magistrate So there is also a dimension of urban class difference to Village Court ability to issue formal court orders. at work here, one that underscores both the Without clearly mandated functions or jurisdictional vulnerability and power of informality and the risks of hierarchies, these tensions are regularly and well-intentioned engagement. Few professional or acutely felt. Jurisdictional encroachment, illegal elite people (referred to as working class) have direct appropriation, the blurring of authority between experience of neighborhood mediation; by virtue of executive, political, judicial, and police domains, literacy, connections, money, and persuasion, they and broken lines of referral loom large. Thus the can make the formal system work for them, exit and informality of many of these arrangements creates turn to private security, or resort to coercion and tensions that threaten to undermine the whole violence (box 2.12). Class difference contributes to a structure. lack of trust but also to caustic distain and a desire to 26 “Come and See the System in Place” civilize. The Tokarara mediator frames the situation well; here, the resort that working-class people have Box 2.13. “Do We Need the Police in This?” to the formal systems of government, justice, or Sabama Stories private security and the impunity with which they are We are always assessing, do we need the able to “chase or belt the illiterates” is somewhat police in this? Why did it happen, what is the mitigated by the illiterates’ access to mediation- based justice. potential for further trouble? Do we need the police? Yes, no, are we going to refer this to It might therefore be argued that mediation is the police? The police are always considering, uniquely able to provide a bridge across which do we go in, do we send it to the courts, or do marginal people can hold their better-off neighbors we send it back to us mediators in the to account, as observed in box 2.12. This throws a community? They say, “we want you involved, different light on the informality of mediation. It is we don’t want you involved,” but in the end a creature of a context in which the majority—the we take a big load of their backs, the police informals—predominantly occupy land and shelter, and the courts. Sabama mediator rely on occupations, and invest in businesses that at best are on the edge of legality and which, as We have to think before we involve the police. a result, are neglected or poorly served by public Sometimes the fees they charge, the authorities, are subject to predatory regulation, and mediation fees, are quite high. If it is a police so on. Mediation offers one avenue for informals case, if it’s serious, the victim has a large to get back into justice settings, be represented, family and supporters looking for justice, then and safeguard their local standing and capital we really need the police to come in. On their accumulation. It is they who will lose out from ill- side too, if it’s big, we will be invited. considered regulation, whether this be motivated by Police mediator, Sabama the broader public interest or more self-serving class interests. Often [the two parties] expect the police to be involved, but at the same time, they want Unpredictability: their own team there. informality and vulnerability to police predation Police mediator, Sabama Although the police present as a form of vertical authority that can support both formal and informal arrangements, the reality is often very different. In part, this relates to the police’s role in competing In sum, the police, because of their unpredictability, for mediation resources. It also relates to police are often a direct constraint on komiti mediation’s susceptibility to enticements by the better-off, urban institutional capability and outcomes. Neither komitis middle class, and thus to accusations that they act nor Village Courts can mobilize the rules, roles, and in the interests of power and money. But arguably resources that command the police; indeed, not even more important is the police’s overall contribution to the highest levels of national and urban government institutional uncertainty in and around neighborhood have recently been able to impose a unified mediation. Put simply, police are a powerful but command on them or regulate their relationship with unreliable form of vertical authority that can and do the other disciplined services. This matters a great shape and disrupt the other graspings of authority deal, not least because urban safety and security at that neighborhood mediators rely on being able to a basic day-to-day level rely on the capabilities of assemble. Unpredictability undermines efforts to neighborhood mediation, which is especially crucial, stabilize and routinize any institutions, but when this as part 3 will now explore, in relation to family and unpredictability is attached to a coercive authority sexual violence, or GBV. that is able to replicate, replace, or undo mediation’s main mechanisms of informal grasping, its effects are corrosive. Thus, for local mediators and disputing parties, and given the crisis of discipline, corruption, mistrust, and turbulence in the RPNGC, questions about whether to enroll the police are basic to any case (box 2.13). Mediation Capabilities in Papua New Guinea’s Urban Settlements 27 3. Risk and Problems: Mediation’s Capabilities and Legitimacy in Gender-Based Violence 3.1 INTRODUCTION This section offers a preliminary exploration of how available in new ways, particularly ways that give well neighborhood mediation deals with GBV.38 This voice to the disempowered and bring issues and is a form of “difference-based” violence and contest injustices out into public debate. Clearly, mediation that is especially susceptible to being referred back has some of this potential through its inclusion of a into the coercive domains of the already powerful range of actors, voices, and horizontal and vertical and that therefore requires effective vertical authority authorities and its articulation (and enactment) of to enforce rights and protect the vulnerable.39 laws based on areas of agreement. Here, it is not insignificant that neighborhood mediation is most The three key aspects of neighborhood mediation subscribed to by the poorer urban majority who, capability are considered here. First, in relation to because they are on the periphery of economic and functions, people are increasingly calling on these political power, are least able to marshal the rules, mechanisms, venues, and institutional forms to deal resources, and enrollments needed to ensure that with family disputes and GBV. Second, mediation formal sector agencies meet their needs. institutions are inherently asymmetric in their capability (grasp and reach, accessibility, affordability, Institutions, however, generally favor the powerful, timeliness, and so forth). In some kinds of conflicts, whether these are local, patriarchal, or ethnic. the very involvement of so many can diminish the Institutions typically offer voice and legitimacy rights of individuals or groups (such as women and to already recognized actors and enable them to youth) who are not well represented in typical local form new pacts and agreements. Neighborhood graspings of authority. Moreover, as not all actors mediation can enable them to escape scrutiny have equal say in the grasping, the mediation tends and exit contests, block complainants’ access to to favor powerful interests, including established appropriate processes and authorities, or have cases male leadership, to the relative neglect or exclusion referred up or back into situations they control (the of others. It can also open the door to coercion, in formal justice system, the workplace, the family, the which actors are empowered by connections to compound). As seen below, it can also enable elites police or security services or family patriarchs. In to use money to buy freedom from accountability certain situations affecting particular groups, this will or to impose ruinous direct costs on others through produce negative outcomes. compensation demands. To be both effective and legitimate, then, neighborhood mediation will need Third, mediation institutions work in contexts where to respond well to the range of other differences that social contests arising from pronounced differ- residents bring to contests—marked by age, gender, ences—in norms and economic, political, and other and other ethnic/kastom differences—and to ensure interests—demand to be negotiated and bridged. that they can be bridged. To do this, the vertical and Simply put, if they are not just to reinforce existing horizontal authority that can regulate them need to power relations, these institutions need to be able be grasped and performed in ways that empower to combine the different forms of authority locally and protect the most vulnerable. 38 This research did not track the trajectories (or what are commonly called patterns of resort) of the victims/survivors of GBV, but rather focused on how GBV cases that came before neighborhood mediation organizations were dealt with. The ongoing research in Lae is more explicitly concerned with trajectories, including in relation to courts, police, and special purpose bodies such as the female sexual violence units. 39 Bridging ethnic difference is in fact another area where mediation is encountering challenges. Although mediation is enabling new urban identities to be negotiated from ethnic differences, within this it is important to observe that Highlanders engage enthusiastically, whereas Port Moresby’s indigenous Motu Koitabans (and other Coastal peoples) frequently feel disadvantaged and vulnerable in mediation and related compensation, and that Highlanders use and prefer mediation because of the scale of settlements it enables them to achieve. 28 “Come and See the System in Place” In GBV, the relations between vertical and horizontal using the (vertical) authority of formal law (box 3.1). authority and the rights of vulnerable persons An overall consensual outcome might be achieved are especially fraught. In public discourse, it is through a recursive mediation process able to bring commonly proposed that a “two-track” approach, both these dimensions together. In doing so, such involving both mediation and criminal proceedings, an approach might address the risks associated with offers an ideal solution to bridge the tensions restorative justice with respect to functions where between the collective “social order” and the power differentials are marked, and might thus individualized “human rights” perspectives. The offer a “transformational” justice. Yet, as discussed two-track approach combines mediation’s ability to below, in practice in GBV and other criminal reach out and grasp the (mostly horizontal) authority violence situations, the two dimensions are rarely and interests of family with the possibility of securing combined well. a woman’s rights through criminal prosecution Box 3.1. Horizontal and Vertical Dimensions of the Grasping of Authority in Gender-Based Violence Cases 1. Horizontal (but not simply horizontal) forms of ethnic/family authority. These include the roles and interests of the woman’s (and the man’s) family as parties to the marriage40 and also of neighbors, as well as their testimony in support of their family members. 2. Vertical forms of authority (vested in formal justice, criminal procedures, and support for the legal rights of victims); involvement of the police and village and other courts. 3.2 MEDIATION, WOMEN, AND GBV gender differences, both in how they function and The role of gender inequality in shaping local justice in results.41 However, although it is clear that women outcomes, including GBV, has thus far only been make little use of the formal court system at district explored in research focused on the Village Courts. and higher levels,42 research on the Village Courts These findings continue to be debated, but one shows that women are active users of local dispute- body of opinion reasons that the predominance resolution processes.43 of male officials (roles), the reliance on patriarchal interpretations of kastom (rules), and the greater Beyond Village Courts, however, there has been no control that males have over the economy (resources, comparable gender analysis of how neighborhood fees, compensation) surrounding mediation will mediation institutions function. Yet it is immediately mean that Village Courts will find it hard to bridge obvious that aside from women Village Court 40 These roles include payment of bride price and a related role as guardian and supporter of the woman’s status and safety within the marriage. 41 C. Bradley, “Attitudes and Practices Relating to Marital Violence among the Tolai of East New Britain,” in Domestic Violence in Papua New Guinea, Monograph 3, ed. S. Toft (Port Moresby: Law Reform Commission of Papua New Guinea, 1985); G. Westermark, “Family Disputes and Village Courts in Eastern Highlands,” in Domestic Violence in Papua New Guinea, Monograph 3, ed. S. Toft, 104–19 (Port Moresby: Law Reform Commission of Papua New Guinea 1985); S. Toft, ed., Domestic Violence in Urban Papua New Guinea, vol. 1, Constitution and Law Reform Commission Occasional Paper 19 (Port Moresby: Law Reform Commission of Papua New Guinea, 1986); and C. Banks, “Engendering Courts in Papua New Guinea,” International Journal of Offender Therapy and Comparative Criminology 42, no.1 (1988): 27–48. 42 S. Heditch and C. Manuel, “Papua New Guinea Gender and Investment Climate Reform Assessment” (Washington, DC: International Finance Corporation, 2010), http://www.ifc.org/wps/wcm/connect/4430a88049fb1287a2b9ebd1a5d13d27/IFC_Gender+and+Inv+Climate+Reform+A ssessments_ExecSummary.pdf?MOD=AJPERES. 43 See R. Scaglion and R. Whittingham, “Female Plaintiffs and Sex-Related Disputes in Rural Papua New Guinea,” in Domestic Violence in Papua New Guinea, ed. S. Toft (Port Moresby: Law Reform Commission of Papua New Guinea, 1985); and M. Goddard, Substantial Justice. Goddard’s close observation of a selection of Village Courts, albeit now dated, concludes that despite the heavy gender imbalance on the Village Court magistrates’ bench, they are still the preferred venue for women; most complaints are brought by women, and Village Courts find overwhelmingly in favor of the (female) plaintiffs. See especially M. Goddard, “Research and Rhetoric on Women in Papua New Guinea’s Village Courts,” Oceania 75, no. 3 (2005): 247–67. Mediation Capabilities in Papua New Guinea’s Urban Settlements 29 A mediation on Sunday morning, in a shady corner of the market carpark. Photo: David Craig/Worldbank magistrates,44 very few komiti or other local media- female Village Court official in box 3.2 warns, Village tors are women. This undoubtedly means that the Court links to vertical authority are no guarantee of ways that horizontal and vertical forms of authority equitable outcomes. are grasped by leadermen/komiti mediators will draw disproportionately on particular expressions of gender (patriarchy), as well as on age (gerontocracy) Box 3.2. “You’ll be Holding a Funeral Service and particular interpretations of kastom and ethnicity. for Her.” Insofar as komiti mediation struggles to achieve recognition from vertical and formal authorities, Sometimes I really think honestly it’s not good having women’s complaints heard primarily in enough. When it’s brought out in front like mediation also frames those complaints in terms of this, only once or twice, well that’s the only what predominates in horizontal authority, that is, time a woman’s voice is heard. The judges the interests of families, the inherited frameworks take this into account, good, but in terms of of custom, and the need for conflict to be resolved awareness they still come from the men’s side in win-win ways. Initial investigations suggest that of things. I say to them, you do this judgement, this can indeed weaken the rights of the victim you need to provide for the woman’s safety to seek criminal prosecution of, and court order now; you can’t send her back into that house protection from, the perpetrator and subordinate with that man. This kind of decision [not these to the interests of wider family and kin. This providing for her safe separation], you’ll make raises basic and important questions of legitimacy sure she’s bashed up straight away. I told and fairness with regard to komiti mediation them, I think you’ll be holding a funeral service of GBV. for her. That husband loses his temper instant- On the face of things, the Village Court’s power ly; he’s got a bush knife, a stone, he throws it, to grant court orders embodies a more powerful this lady is vulnerable. grasp of vertical authority, for it marshals the police Village Court official (female) and through this, the prosecution and court justice services. In the absence of this kind of capability, non- Village Court mediation is always prone to becoming Without denying the powerful constraints to women’s too embedded in local power structures to enable access, representation, and voice in settlement women to reach help beyond the local and domestic. contexts, it is clear that public neighborhood media- But gender imbalance can mean that Village Court tion can be a powerful weapon for unmasking GBV arrangements too can result in danger for women, abuse and promoting public discourse (and public even when backed by court order authority. As the shame for perpetrators) (box 3.3). 44 Up to 900 women Village Court magistrates were selected for appointment in recent years. Final appointment however will depend on available funding. 30 “Come and See the System in Place” Box 3.3. Does Mediation Produce Good Out- comes for Women? In terms of outcomes for women, I think they are better in mediation [than in court]. A woman can have plenty of witnesses and supporters there with her, speaking. Her family can all be there and know they will get a say. Family is the main person who stands by the victim; they can come out and speak, and they have seen it all. They can tell you, “Ever since they were married he’s been bashing her—let the mediators consider that!” They can demand that the mediators consider a wider range of opinions; anyone there can do that. Police mediator (male) In mediation you get the woman’s people involved and the husband’s people involved. They need to be involved; bride price has been paid, so there’s pigs and compensation going to be involved. It’s an agreement and therefore it has to be settled in mediation. There’s no written law in there, it’s an understanding; where there is an agreement it has to be mediated. It’s better for the woman in the event she is attacked in the hearing; she has supports from her own people, she will talk more freely. From the others, honesty and truth will be there at the A mediation convenes at short notice in a public market, presided back of her; it’s harder to tell lies to a lot of over by the chair of the Village Court. Photo: David Craig/Worldbank people. It’s like she’s having the consensus of people backing her up; law is made out of consensus, and that’s behind her standing Informants made it clear that procedurally, mediation there. Village Court magistrate (female) institutions also compare reasonably well to the village hearing process. As table 4 shows, mediation She’s allowed to say all these things in was regarded as better suited to cases where families public. Other women in the same situation as well as individuals are affected and implicated, and also come out and speak out. The women where many affected people want to have a voice. came out and supported the woman: “Now Mediation allows time for families to deliberate we’re going to say what our husbands do to on and agree to the settlement; without this, the us.” Several called for their husbands to go issue will not be resolved. The preference, then, for to mediation, pay compensation. The hearing GBV cases in mediation rather than courts outcome is that these issues that are very, (including the Village Court) has an important basis very silent and get buried, where all you see in mediation’s strengths. The procedural differences is the black eye, placing them in public view summarized in table 4 underpin the favorable assess- like that you hope they won’t repeat. ments of mediation often made by police and Village Tokarara Village Court official (male) Court officials. Mediation Capabilities in Papua New Guinea’s Urban Settlements 31 Table 5. Procedural Comparison: Village Court and Mediation “Full Bench” of Village Court (VC) Mediation Hearing Who attends? Both parties, families, public Both parties, families, public Both parties and families; it’s expected that Individuals, VC magistrates, including a woman will have support of family and Who needs to be involved? women friends as she represents them and their interests Those asked by the VC; sometimes only Anyone can speak up at his/her own Who can give evidence? complainant and defendant, witnesses discretion; a woman can ask all of her family at magistrate’s discretion to attend and speak Group discussions are built into hearings; Opportunities for private/ Done away from the court or in women get to have their voice heard even if group discussion temporary adjournment they are afraid to speak out in crowds Everyone. If a woman’s supporters don’t Who makes the decisions? Magistrates, court officials agree, they can shape the decision VC magistrates in mediation will write court orders and get them endorsed by the full What orders are possible? Court orders bench; for komiti mediation, no orders can be issued What compensation/ K1,000 compensation, K200 fine Unlimited fine limit? Mediation’s powerful preferential advantage over (horizontal) authority of the family members and the formal justice arrangements means that serious subordination of the woman’s interests to this. The cases, including rape and violent assault (box 3.4), are victim is often not in control of what happens but is routinely concluded in mediation, with compensation prevailed upon by others, including family members paid explicitly in lieu of criminal procedures. The and likely the offender himself. reasons for this are many, but they relate to the Box 3.4. Mediation and the Law: Two-Track Systems A returning husband violently assaults his wife: The husband left his wife two years ago, and went off with another. Then he decides to come back to the wife. But he asks her in the night, “While I was gone, did you go with another man?” She tells him, “After a time, OK, there was this one man who was very persistent…” When I saw the situation, she has been very badly cut up, all up her arms, and worse. Even mutilation of the private parts…. The husband’s relatives come and see me, saying “We need to do something, or this is going to be a murder case. Husband and wife come from the same Highlands village—there’ll be a tribal fight over this, there’s bride price involved.” I say, “Take this guy in to the police now and have him charged!” [But no prosecution eventuated; fears over communal violence resulting in the Highlands meant it remained within mediation.] We need guidelines for mediators in such cases; the family wanted mediation, but this needs to go through the court too. Mediation and law have to come together; for the rest of the relatives, for continuity of life, mediation must take place. But it hasn’t happened in this case. Police mediator (male) 32 “Come and See the System in Place” 3.3 A BETTER ARTICULATION OF TWO-TRACK, VERTICAL, AND HORIZONTAL AUTHORITY IN GBV CASES? Box 3.5. Medecins Sans Frontieres’ Assessment of Risks of Hybrid Justice and GBV in PNG Inadequate or inappropriate responses from the country’s hybrid system of formal and traditional justice, and the dysfunction of the protection system, are putting survivors’ lives and health at risk. Patients’ experiences expose a culture of impunity, and a continuing reliance on traditional forms of justice to solve serious family and sexual violence cases. The widespread tradition of ‘compensation’, whereby either money or pigs are paid to victims’ families for crimes committed, means that perpetrators often remain within their communities, exposing survivors to the threat of repeated violence. Source: Medecins sans Frontieres, “Return to Abuser: Gaps in Services and a Failure to Protect Survivors of Family and Sexual Violence in Papua New Guinea” (Geneva: Medecins sans Frontieres, 2015), 7. Women who have faced GBV need access to path- Mediation is clearly emerging as a widely practiced ways of legal resort and safety that go well beyond means of resolving GBV incidents, at the same time mediation and that will not entrap them in local, as awareness and activism around GBV are spreading family, and other male-dominated structures. It is (box 3.6). That both horizontal and vertical authority essential that there be procedures that reach into are needed for effective and legitimate mediation local contexts but they must do so with the assur- is nowhere more evident than in GBV cases; as the ance of anonymity, professionalism, and rights- mediator in box 3.4 put it, “mediation and the law based legal approaches, especially where mediation have to come together.” But will the rise of mediation will also be practiced. support better resolution of GBV cases? If so, how can this be facilitated? Box 3.6. GBV and Mediation: Mediators and Other Village Court Officials Speak I am certainly noticing that the issue of [increased awareness of] family and sexual violence is making an impact, a very positive one. But it’s not yet always spilling over into the things getting reported on at the police station, or in the formal court system. Generally speaking, for abuse of women, children, cases do come more frequently before mediation than the courts. The law does have an impact. We remind people about the law. Each time before we go to mediation we say “Be warned: the law now is much more powerful for women and children. Any assault, however minor, will be taken seriously. You’ve got the Child Welfare Act now, taking care of these ones.” Sabama mediator (male) Most of the vendors here have been bashed, most of the market women are on their second, third marriage, because of that. If there’s a family matter, and a woman in the market, beaten up by her husband, I ask them what is happening. We have a referral pathway to the police station. We can bring them in there. If the husband comes back in the market situation, if he’s very violent, I’ll get the police involved, and he will be charged. If it can be mediated, I will. I don’t take them to the VC, I leave the [market] clerk on duty, I bring them here [to the market office/ former VC site] and we talk. If I see it’s just jealousy, I tell them to sort it out, and to go buy something, coke, Fanta, for reconciliation. After that she can carry on, nobody else is going to feed you. It’s your living, you need something to put on the table. Women are the breadwinner. Here, the men are good for blah. The women are setting the table. Gerehu market official (female) Mediation Capabilities in Papua New Guinea’s Urban Settlements 33 A key issue is whether current practices are amenable Box 3.7. Mediation Undermining Criminal to intervention—through guidelines, instructions, or other ways of changing the alignments and Proceedings in a GBV Case competition over rules, roles, and resources—or A businessman rapes a female staff member, whether, on the contrary, they are firmly entrenched as related by one of the police attending the in clashes of interest and political economy. The crime: second quote in box 3.6 above points to the potential of having more women trained and involved in A businessman hired two young women mediation, whether as komiti or Village Court assistants. One afternoon, he asked them to magistrates or members of community organizations join him for a drink after work, in the and staff of state agencies. Recent experience workplace. He made advances to the women, suggests that women enabled through such training and they made to leave. One got away, the could find niches in a range of local authorities and other was caught and raped. The other develop serious competition as well as networking woman returned with the victim’s parents, and coordinating capability. Action research enabling catching the rapist in the act. Police were women to become mediators and tracking their called. While one officer took evidence, experience looks like a viable way forward here. another was found to be “mediating” a settlement in an adjacent room, where he was As fundamental, however, are questions about alone with the victim and the rapist. The whether two-track pathways can combine the horizontal authority of neighborhood mediation with victim was being jointly pressured by the the needed vertical authority, whose main expression, policeman and the rapist to accept a K3,000 the police, remains so unpredictable. Perhaps the settlement in exchange for an undertaking to sometimes predatory, competitive nature of the drop all formal police charges. The policeman formal justice system/policing means that there are could have expected a fee of at least 10 simply too many obstacles to institutionalizing good percent of this settlement. two-track procedures. The police mediator in box 3.3, a long-serving and highly respected leaderman, sees merit in guides and instructions to mitigate up and taken over by family. The cases also show, egregious injustice and make two-track happen. But however, that police involvement in serious crime is in the case in box 3.4 in which he was involved as multifaceted, and that the rules and hierarchies of mediator, although proper criminal investigation was coercive power are not always dominant. But even warranted and urged, prosecution did not occur. where a police mediator is involved and urging The victim was not in control of what happened but two-track arrangements, s/he will not necessarily was prevailed upon by others—police, family, and be heeded. likely the offender himself—and community support was either absent or primarily concerned with the possibilities for further violence. Not in control either was the victim in the case outlined in box 3.7, which also involved the police and demonstrates a dysfunctional variation on two-track pathways. As evident in other cases examined in this research, the effect of police involvement in mediation pro- cesses here was to divert, or try to divert, a criminal investigation. Here is not the place to speculate about the particular mix of conditions this reflects— the command and discipline regime, the enticements, the formal remuneration or culture of policing—but it seems clear that when vertical authority is unable to be grasped, the victim’s interests will be exclu- A woman relative speaks, surrounded and supported by family. ded, subordinated to the desires of wider family, Photo: David Craig/Worldbank and her claims for compensation likely to be taken 34 “Come and See the System in Place” 4. Conclusions and Recommendations 4.1 MEDIATION AND RESTORATIVE JUSTICE Box 4.1. Mediation and Restorative Justice: since 2000 Papua New Guinea has a distinct advantage in restorative stakes... Our nation’s many traditions and customs provide a rich foundation for the development of a homegrown system of justice best able to meet the changing needs of the people… The idea of finding out what a particular community’s security needs are… extends far beyond community policing. It entails learning from the traditional view that sees crime more as an injury to the [victim], rather than as an injury to the government or the state. A restorative justice approach sees criminal justice as involving the victim, the offender, and the entire community in its processes, [and] as an opportunity to repair the damage caused by the conflict. Source: Government of Papua New Guinea, “National Law and Justice Policy and Plan of Action: Towards Restorative Justice” (Port Moresby: Law and Justice Sector Working Group, 2000), 17–18. The vision of the PNG government’s 2000 “National for similar kinds of comprehensive transformation Law and Justice Policy and Plan of Action” has not and it too has struggled for traction, especially at the yet been realized, at least not via the complete edges of its reach. transformation envisaged in the plan. At that time, it was anticipated that policy makers would take Yet despite these struggles, restorative justice the lead; legislation would revitalize law and justice capability is being institutionalized through neigh- agencies; new kinds of inter-sectoral linkages borhood mediation, and it would be a mistake to see within government would link policy, budgets, and this institutionalization as merely a transitional and performance; and training would be informed by inept grassroots response to the weakness of the state. national strategies.45 Certainly the rise and spread of mediation reflects the longer-term, nationwide success of Village Courts The Plan of Action was a high water mark of the multi- and their restorative justice orientation. The courts sector, multi-stakeholder approach to reforming PNG also show that the work of the Peace Foundation law and justice that emerged from the crisis years of Melanesia’s trainers and restorative justice advocates the 1980s and 1990s. Internationally, such approaches over the years continues to bear significant fruit. There aim to transform entire sectors or geographical is also enduring and substantial policy support for locations and typically generate extensive records restorative justice within core PNG legal institutions, of reviews, workshops, summits, sector-wide action law and justice sector agencies, and partnerships. plans, and implementation frameworks, along with But perhaps it makes most sense to see the priority (though often unbudgeted) programs, institutionalizing of mediation within neighborhoods projects, and proposals.46 The 2000 plan reached as a response to the challenges of urban migration, 45 See Government of Papua New Guinea, “National Law and Justice Policy and Plan of Action: Toward Restorative Justice” (Port Moresby: Law and Justice Sector Working Group, 2000), 34–40. 46 See, for example, Annex C of Government of Papua New Guinea, “The National Law and Justice Policy and Plan of Action”; and Government of Papua New Guinea, “A Just, Safe and Secure Society: A White Paper on Law and Justice in Papua New Guinea” (Port Moresby: Department of Justice and Attorney General, 2007). Mediation Capabilities in Papua New Guinea’s Urban Settlements 35 arrival, and settlement; the difficulties facing mixed 4.2 THE IMPLICATIONS OF MEDIATION’S urban populations and the constant risk of conflict NATURAL EXPERIMENT IN INSTITUTIONAL and predation; and the imperative for all people CAPABILITY MAKING to protect the capital they have pulled together. In Table 5 summarizes the preliminary findings of investing their time, participation, and resources in this research on mediation capability in mixed mediation, urban residents have initiated a cycle of settlements, which have four implications. First, positive institutional returns that could be building a ongoing and future empirical research will need to new basis for class politics, democracy, urban vitality, test these findings, but it seems clear that now is a and public order. good time for policy makers to revisit mediation and see how it is playing out, the ways in which it may These trends reach well beyond large-scale reform or may not be fulfilling the restorative justice vision, or government intervention. Yet clearly, mediation and importantly, whether the positive trajectory works best within the shadow of the law, where, observed in this research is generalizable or likely although the state is often formally absent, it can to be sustained. For just as mediation capabilities be invoked by local actors to support good law are a response to the exigencies of urban politics and justice outcomes. If it is to continue to thrive, and economics, this context is also dynamic; in fact, mediation needs careful understanding and support the economic fortunes, jobs, and public and private (rather than unpredictable disruption) from formal urban investment fueled by the construction phase law and justice agencies, including the police. of the liquefied natural gas project have already been replaced by a much less certain outlook. Table 1. Neighborhood Mediation: Capabilities at a Glance Institutional Efficiency Power and Authority Outcomes and Legitimacy Capability Accessible: multiple local entry Grasp: high local/ horizontal Depends on negotiated, points authority mediated settlement among Affordable Reach: high ability to bridge wide range of people. Komiti mediation Timely; meet as need arises ethnic differences (individuals, panels, Sustainable Grasp: moderate/limited Can be ignored teams) Can offer choice of mediators vertical Self-regulating Reach: moderate/limited across Limited around gender-based class/gender violence (GBV) Moderately accessible Grasp: local leadership and Can combine mediation with Meets weekly vertical state authority adjudication Village Court State-financed magistrates Reach: court orders can reach mediation improve access into families, neighborhoods, Mediation fees can be higher, across differences Moderate outcomes for GBV constraining access Can be quick Grasp: high formal and coercive Unpredictable, able to be Limited access for settlements, power captured, diverted Police mediation higher though still limited for Police influence can disrupt middle classes Reach: sporadic, resisted in mediation High cost many settlements Limited GBV outcomes Institutional Capability: High Moderate Limited 36 “Come and See the System in Place” Mediation is already relating to the wider range Recommendation 1: Enable careful of associations that mobilize and press for service and positive local-level recognition and delivery, citizenship rights, access to public spending, development of neighborhood mediation and so on. How could or should contemporary forms and its expanding scope, and explore what is of neighborhood mediation be encouraged to reach needed to make it more capable. into these new functions? How, in doing so, can mediation protect the vulnerable and not work as a Mediation is developing new areas of capability, but mechanism for the powerful to deflect formal criminal this is occurring very unevenly and without much proceedings? And how best to respond when public recognition. Mediators are getting involved mediation’s informality is a crucial asset so easily in local market safety, informal vending, women’s disrupted by the external intervention of vertically issues, youth justice, employment concerns, police empowered actors? There is no way of knowing relations, the management of social disorder in advance, but first and foremost, this research issues such as homebrew (alcohol abuse), and suggests that the most reliable source of intelligence intercommunal disputes. But there is little real about these questions will be everyday urbanites, sharing of this experience and how it can be turned mothers in homes and markets, leadermen/meris in into good practice across PNG. Overall, the ongoing komitis, youths competing for jobs, and close to all development of a “community of practice”47 involving of these, the officials of Village Courts and district- leading, practicing, and emerging mediators seems and lower-local governments. highly desirable. Second, to support people at these levels, it A careful program of knowledge exchange and is crucial that the formal law and justice policy co-development—starting small, working closely agencies be more informed about the trends, with local actors—could track developments and opportunities, and risks presented by mediation, support better outcomes in all of these areas. Second, as well as about the potential unintended effects the governance arrangements of larger urban areas, of ill-considered regulation. Third, because public including Port Moresby, Lae, Mt. Hagen, and others, authorities, including specialist law and justice are undergoing significant changes, especially as agencies, inevitably respond to public opinion, it they intersect with the new district development is important that the wider public (and especially authorities and city authorities. They will need to the working or middle classes) are aware of the develop stronger citywide mediation capabilities. strengths, limitations, and potentials of mediation so as to enable this process to emerge from its stigma Follow-up actions: Enable leadermen, mediators, as informal and associated only with settlements and officials of the Village Courts, and district- and crude, unreliable justice accessed mainly by the poor. lower-local governments to consolidate under- And finally, more attention is needed to real areas of standing of the locally existing mechanisms of me- concern with regard to mediation’s limits, particularly diation, and develop mediation’s scope and reach. in the absence of two-track processes when the role of the police becomes crucial. With a range of agencies (initially at the local, urban, district, lower-level government, and/or ward level Consistent with these conclusions, five preliminary and subsequently with national agencies),48 conduct recommendations are offered, each of which could workshops, learning by doing, action research be supported through follow-up actions under Urban activities, and master classes led by senior mediators Safety in Port Moresby and Lae, Papua New Guinea to identify, understand, and document the essential (P152112) during 2016 and 2017. components and capabilities of the good urban mediation practices happening in that locale, in order to learn the answers to the following questions: 47 See UNDP and EU, “Supporting Insider Mediation,” 39: “The existence of a community of practitioners with members who possess the requisite experience and skills to, for example, conduct training of trainers is invaluable. [W]here individuals or organizations with high-level of skills do not exist, expertise can be drawn upon from the neighbouring region.” 48 Including the Department of Justice and Attorney General Restorative Justice Unit and the Constitutional and Law Reform Commission. Mediation Capabilities in Papua New Guinea’s Urban Settlements 37 • What are others doing, and what is best practice It is important that the flexibility—the community in neighborhood mediation? recognition (of the person/people and the rules), and the ability to choose who is involved in mediation— • How does authority come together in particular be maintained so that case-appropriate diversity and locales; how does it enroll, grasp, and reach, grasping of authority can happen, the community vertically and horizontally; how can it best be can self-appoint, and relevant leaders can emerge. supported and not damaged; how can it be made more effective and inclusive? It is important too that this authority is not undermined by suspicions over payment for mediation services. • How can mediators expand their existing ability Financial recognition (from the district or ward level) to be proactive, for example, in youth justice, of the time and effort senior local law and justice fights around homebrew or in markets over buai, leaders (beyond the Village Court, such as komiti or disputes surrounding arrival and settlement, and blok chairpersons) put into mediation work would be clashes over business opportunities? welcome. It is crucial too, however, that stand-alone, self-funding participation be maintained (including • What should the roles of different mediators through payment of some form of informal fees, be? Who should mediate, adjudicate, and contributed by all parties) to ensure that the local arbitrate, and around which kinds of cases? How responsiveness, accountability, and self-regulation are mediators managing their relationship with of mediation be sustained. Again, overregulation police and formal courts and other authorities (or even well-intentioned but ill-considered support) (Village Court, court-based alternative dispute could limit this capability. resolution)? Follow-up actions: Assist national policy and • Where will official recognition and regulation regulatory bodies to ensure that oversight help or hinder the effort? protects neighborhood mediation’s flexibility and inclusiveness. Recommendation 2: Promote awareness of, National policy agencies have a strong, positive and the ability to respond to, neighborhood interest in mediation. These include the Constitutional mediation in national policy agencies. and Law Reform Commission, the Department of Justice and Attorney General (especially the To facilitate Recommendation 1, it is appropriate Restorative Justice Unit), and the Law and Justice that national agencies be supported to meet the Coordinating Committee. opportunities and risks presented by the rise of mediation as the most common form of local justice • Initially, support the development of a research in urban areas. Current government policy remains partnership capability within national policy generally positive, but institutional mechanisms to agencies, whereby findings from the above implement it are not in place. There are also real risks local processes can make their way into policy that as mediation expands and competes with other forums, programs of review, and development forms of local justice, and as in some risky areas its programming driven from the national level. powers are abused, mediation will become subject to regulatory overreaction, limiting access to what • This research partnership could in time revisit has become a very efficient and accessible system of the 2000 National Law and Justice Policy and dispute management. Plan of Action to consider the extent to which mediation is aiding the realization of restorative Nonetheless, in some areas, mediation needs justice policy aspirations. In a Constitutional greater formal support. Some issues, such as fees, and Law Reform Commission context, it could roles of different mediators, two-track justice, and consider the possible contribution of mediation the roles of police and community leaders/law and to the constitutional project of declaring justice komitis need to be carefully addressed. underlying law. Where needed, it could initiate national regulatory review processes designed to recognize and strengthen mediation’s role. 38 “Come and See the System in Place” • Improve the quality and supply of first-rate Recommendation 4: Address mediation’s risk mediation through learning exchanges and and problem areas, such as serious crime, master classes involving leading mediators. including family and sexual violence. Expanding the supply and scope of high-quality mediators and refining the skills at the top end There are areas where diversions of justice involving of mediation among the mentors and leaders mediation are especially important, particularly the of mediation might be a way to both enhance prosecution of serious (including family and sexual) its best practice and produce public good violence. Currently, mediation acts in many instances outcomes in recognition of the broadening as an alternative to criminal prosecution, which is scope and functions serviced by mediation. then delayed or stopped altogether by the mediation process, and the rights of victims to seek criminal redress are subordinated to the interests involved in Recommendation 3: Build wider public the wider mediation effort. Inevitably, the outcomes awareness and support. of mediation affect formal court functioning and findings (the willingness of victims to lay charges, The stigma of settlements and their law and justice fines, and penalties, for example), though how this arrangements continues. Mediation in many circles happens is subject to vast variation. remains one of the unseen aspects of urban cap- ability, operating day to day in settlements and It is a policy consensus that though mediation is neighborhoods and contributing to wider safety and necessary to arrive at compensatory arrangements security. Mediation processes tend to attract media that can deal with the harm done to families, attention when they fail and dramatic intercommunal mediation alone is a highly unsatisfactory solution. conflict occurs, or when local attempts have failed A two-track approach, involving both mediation and a grander, larger-scale event is needed to and criminal prosecution, needs to be enabled. The reestablish peace and good order. problem of the diversion of criminal prosecution by mediation will not be solved by simple legislation. In Insofar as mediation is stigmatized by its association particular, there is a need for a closer understanding with informality and settlements, its value in of women’s patterns of resort as they respond to supporting security and safety will be restricted by violence against them in order to assess precisely pressure to regulate mediation in prejudicial ways. what enables and constrains two-track approaches to GBV. Building on the progress in mandating the Follow-up actions: Contribute to reducing the appointment of female Village Court magistrates, stigma of mediation and create awareness of its the potential role of GBV-trained women mediators capabilities. and komiti members needs further exploration and development. • Working with both local and national policy agencies and media partners, collect and publish/ Again, a number of the actions below should circulate cases and accounts demonstrating the be implemented within the scope of the current ability of mediation to resolve issues across a technical assistance work and in partnership with range of settings and problems. local agencies engaged through this project. • Seek ways to generate public understanding Follow-up actions: Develop a policy learning of, and institutional support for, the roles of process supporting the greater involvement of leadermen, komitis, Village Courts, and others women in GBV mediation, on komitis, and with in solving local conflicts though mediation. police. • With national leaders in GBV prevention/law and justice and with women community leaders in pilot local contexts,49 instigate a policy- 49 These pilot locations may include Lae, where Urban Safety in Port Moresby and Lae, Papua New Guinea (P152112) (NL-TA) is currently active, and others identified bilaterally via PNG-Australia law and justice and governance programming. Mediation Capabilities in Papua New Guinea’s Urban Settlements 39 focused learning process that can address the (that is, male) komiti members to respond dangers of mediation in GBV cases and lead better to GBV cases, would also be valuable. to a better understanding of obstacles to and In many situations, however, existing practices support for two-track approaches in order to of mediation may still be unsympathetic to inform regulatory review. The process could women’s needs. In general, women need the focus on identifying and mapping existing and option of bypassing komiti mediation and going potential patterns of resort in GBV cases that straight to higher-level formal services. Komitis enable access to formal support, and find ways need to know that this is legitimate. to ensure that these cases are not routinely referred back to local mediation and away from formal/vertically empowered resolution. Shared Recommendation 5: Investigate how police action research investigations (researchers involvement in mediation can be better working with Village Courts, women’s groups, governed. komitis, police), case-based dialogue (within As the current technical assistance, and the larger safeguards), and the delineation of problem program of Australian assistance to which it points could enable innovative responses to be relates, proceed, issues around police participation developed and trialed in real GBV service and in mediation processes should be specifically community contexts. addressed. This should happen initially by seeking local mediation participants’ perspectives on how • With women community leaders, investigate the police might profitably be engaged and on ways for women to take on a wider set of roles cases and situations where they had participated in in mediation and not just in GBV. This could constructive ways in the past. include support for women’s involvement on komitis, in Village Courts, or in relation to police Follow-up actions: Learn how to improve outcomes mediation/criminal prosecution processes. from police involvement in mediation. • Training more women in mediation—and Attention should focus on what factors make it creating a wider expectation about a role for more likely that police will engage local people and women on komitis—would be a first step, authorities in constructive ways: developing skills that could be applied in a range of contexts. Having trained and recognized • Examining how women victims might avail women mediators working in a variety of themselves of choices around resort that could community settings could have multiple benefits include the police but are not, as a result, over time. restricted by that inclusion • Better understanding and analysis of existing • Examining how local komitis can involve police komiti mediation practices and capabilities without losing control over situations or having around GBV, along with the training of existing their own positions and integrity compromised • Examining how issues of police responsiveness can be handled by komitis and police together, so as to better promote timely and appropriate responses when issues emerge • Creating wider awareness of typical ways in which police engagement disrupts and damages local mediation capability, and ways this can be minimized • Informing codes of practice and training and experimenting with local relationship brokering for police, enabling them to better recognize Photo credits: David Craig/Worldbank and communicate with local komitis 40 “Come and See the System in Place” Mediation Capabilities in Papua New Guinea’s Urban Settlements 41 42 “Come and See the System in Place” Annex 1: Research Methods This exploratory and formative piece of research used primary ethnographic and qualitative methods to examine neighborhood mediation practices: observation, participation, case studies, and group and individual interviews. It developed and validated initial findings through triangulation and qualitative sampling strategies, including snowball sampling and sampling for difference and redundancy. At the same time, it applied theoretical and analytic approaches (drawn largely from international/comparative political science, urban political economy, and historical institutional analysis) to predict and explore patterns of institutional development and capability. These investigations enabled a wealth of empirical materials to be assembled. Only the most illustrative of these, however, could be used in the body of the report itself. Initial conclusions drawn in the report, though preliminary, reflect the balance of the full range of materials and perspectives assembled. • Given the complete absence of studies in this area within Papua New Guinea (PNG), mainly due to access and safety issues but also stigma, as well as the access and safety issues for this study itself, it was crucial that formative work, framing analyses, and empirical exploration be conducted flexibly. Researchers needed to be able to secure access and at the same time respond to new, presenting perspectives where these came to light. They needed to make clear that they were not looking in the first instance to criticize or stigmatize local mediation processes, nor to enable others to discipline them from formal law and justice positions. • Research began with an extended series of conversations with local people in public spaces (markets, churches, shops, bus stops) and private homes and moved from these contexts to a series of more structured individual and group interviews and the development of case studies in public sites, homes, workplaces, and businesses. It continued with observations at mediation events, at which extended interviews were conducted/carried out with the main actors and a number of other participants. • Relevant PNG and international literature was consulted, and the researchers’ considerable experience of community-level organization in relation to law and justice drawn on. But descriptive and analytic framings were also approached flexibly and developed through well-known exploratory and formative investigative techniques. • These techniques included both triangulation and snowball-, difference-, and redundancy-based sampling, as well as ongoing dialogue and iterative analysis. Snowball sampling, where a member of one group with whom rapport and a level of communication and trust have been established is asked to introduce researchers to others who might inform the research, has the advantage for researchers entering the field for the first time of being able to draw on the trust established with one group or interviewee in order to engage others. It works particularly well in intense social contexts such as PNG markets and settlements, providing researchers with the basic safety of being known and under the care of known local actors. Short of entering under full armed official escort (which would impose constraints of its own on research reliability), there is simply no alternative to this kind of relational approach during entry and to some extent ongoing research in and around settlements. • For obvious reasons, snowball sampling needs to be complemented by other sampling techniques, including, in this case: i) applying triangulation (a technique that validates data by deliberately seeking different perspectives from multiple sources to cross verify, with the differences based on accepted social science parameters), ii) using multiple points of entry and research team mixes50 (not becoming dependent 50 At various points in the process, the core research team included two expatriate social scientists, a PhD-trained woman anthropologist who is highly experienced in Port Moresby settlements, two elder researchers, a resident in the settlements, and a youth researcher drawn from a local nongovernmental organization (NGO). Mediation Capabilities in Papua New Guinea’s Urban Settlements 43 on or captured by one person, group, or site), iii) sampling for difference (ensuring that the qualitative sample includes the full range of points of view), and iv) sampling to redundancy (pursuing these techniques until little or no new material and perspectives come to light). In urban PNG’s mixed settlements, differences that matter include, at a minimum, ethnicity, gender, class, age, and duration of residence, and this research actively sampled for these differences at every point. To some extent, as below, sampling and questions were based on analytic framings found to be significant elsewhere. • Common issues in this kind of research include the predominance of perspectives from (older, male, educated, dominant ethnic) leaders themselves and the difficulties in accessing those most vulnerable or peripheral to power. This research indeed focused on understanding in the first instance the institutional mechanisms themselves and focused its attention on those intimately involved in mediation: mediators, komiti members, local leaders, and Village Court officials, as well as those participating as parties to mediation events. Around these parameters, which certainly favored older males, initial triangulation and sampling for ethnic, gender, age, and class difference as described above occurred, with interviews and focus groups at and around each site deliberately involving only women, youth, or ethnic minorities. As there was more limited participation in this initial research from those not immediately involved in (but often powerfully affected by) mediation processes, the need for further research, especially involving those vulnerable and peripheral to mediation processes, is strongly stressed. • Single interviews with strangers in these kinds of contexts produce results with very low reliability. Within both neighborhoods and the research team, this research was informed by ongoing iterative practices of reflecting together on emerging findings (in groups, individually, in review of writing and conversation). Clarifications were often sought and different perspectives explored, and time for reflection enabled all sides to sharpen their sense of what was happening and what needed further, wider investigation. Following these protocols respectfully within local settlement contexts meant that interviews needed to be flexible in terms of attendees, since family members would want to be in the conversation and some would want to dominate. Multiple and iterative conversations involving different individuals and groups, and careful use of group and researcher splitting to enable different kinds of voices to emerge, were used throughout. • Altogether, more than 200 separate individual and group interviews of this kind were performed across the two sites, with smaller numbers (n=40) at Vabukori. Twenty-three case studies of varying detail were compiled. Conversations occurred in the familiar mix of Tok Pisin and English within which much of this “local public” business is pursued. Translation was available on both sides. Overall, researchers were pleasantly surprised and impressed by both the eagerness of locals to talk and the ways their discourse reflected obvious local development of critical perspectives and widely shared understanding of what is happening in neighborhood mediation processes. Variously or even randomly encountered people at very diverse sites would use highly similar language to describe what local leaders are doing in mediation. Theoretical and analytic perspectives • Researchers inevitably bring to new sites a sense of what has been important elsewhere, and this shapes methods and practices. The researchers involved in this study had longstanding interests in a range of relevant fields: political economy, institutions and state formation, urban studies, local law and justice, and social and ethnographic analysis. Perspectives on political economy, state formation, and local-based imitation of the state are strongest in African contexts, urban violence in (Latin) American. Although there is a vast ethnography of tribal and rural PNG, material focused on urban life is much sparser (though typically of high quality) and not heavily informed by analytic perspectives on either urban political economy or institutional formation. 44 “Come and See the System in Place” • Michael Mann’s influential framing of infrastructural power51 was important to this study. Although this framing has been largely applied to macro-level political analysis of the ability of state and state-related public authorities to grasp power and resources centrally and extend them to the edges of territorial authority, the authors felt this same analysis had explanatory value when applied to more micro-territorial contexts (settlements, markets) and to the infrastructural power of institutions that functioned at and beyond the edges of effective state rule. This study’s use of grasp and reach represents some theoretical/analytic innovation, the success of which readers can judge for themselves. It introduces an element of power and authority and thus insists on questions of legitimacy (something uncommon in much New Institutional analysis). Its operationalization in terms of measurement remains limited, but it (uniquely) demands that questions of power and capability against functions, rules, roles, and resources be described, explained, and assessed. The processes as well as the “grasp” and “reach” of crucial aspects of institutional capability— such as regulatory power, authority, and legitimacy and the ability to enroll actors and sustain resourcing— are all central to the analysis. 51 M. Mann, States, War, and Capitalism (see note 13). Mediation Capabilities in Papua New Guinea’s Urban Settlements 45 Mediation Capabilities in Papua New Guinea’s Urban Settlements 47