Journal of Dispute Resolution
Communism ended in most parts of Eastern Europe and the former Soviet Union over ten years ago. However, the legal and judicial systems in many of these nations seemingly defy reform efforts. What I call in this article the "Cookie Cutter Syndrome" describes the standard approach Western nations developed to assist legal reform in the former Communist world.' Despite vastly different conditions in these countries, the model for judicial reform remains very similar, and is rooted in litigation and adversarial practices. The question of whether an adversarial-based approach is appropriate becomes even more acute as assistance efforts focus more on nations with less of a history of rule of law.' For the purposes of this paper, the definition of rule of law is "a system in which the laws are public knowledge, are clear in meaning, and apply equally to everyone."
The Cookie Cutter Syndrome describes the framework under which most legal reform efforts are organized. The Cookie Cutter Syndrome is an approach that fails to look at the individual differences of the specific countries receiving rule of law development assistance. Instead, the Cookie Cutter approach is for aid providers to treat each nation as unformed dough, onto which the Cookie Cutter of a Western legal system is applied. Legal reform is one category of democratization work. Each legal reform program includes four basic components: re-writing laws; training programs for legal professionals; technological assistance and refurbishing courthouses; and institutional development.4 All of these components focus on developing and improving litigation-based dispute resolution systems. Yet corruption and chronic court inefficiency continue to plague the legal systems in many post-communist nations. Foreign assistance efforts are making little impact in many of these nations because these efforts fail to get to the fundamental reason or reasons that a particular society is not making lasting and meaningful legal reform. The fundamental challenge facing these programs is to provide assistance to change legal cultures so that people expect and demand that their systems of justice deliver more, and to then make those systems deliver.
It is time to move beyond the Cookie Cutter approach to legal and judicial reform and instead provide individualized assistance programs in each nation so that these programs directly confront the more difficult and confounding questions of why particular nations are still failing to make progress towards rule of law. Thomas Carothers has called this the need to identify the "core syndrome" in examining the broader question of why democratization programs as a whole are not working in individual countries.
The Cookie Cutter Syndrome tends to use Alternative Dispute Resolution ("ADR") within specific categories of disputes. In the post-communist world the most common application of ADR has been in the area of commercial disputes. I propose that legal reform programs change their approach, integrating ADR fully into their programs. Various forms of ADR could usefully attack the "core syndromes" blocking reform in individual countries. Various forms of ADR can help effect change in legal cultures, and, within the context of legal development programs, could move post-communist legal cultures further on the road towards rule of law.
This article begins with a brief background of ADR, democratization programs, and legal reform programs. Section Three describes the Cookie Cutter Syndrome and examines the assumptions that shape legal reform efforts and that impact if and how ADR is used. Section Four examines how legal and judicial reform programs could look more broadly at using various forms of ADR to more effectively change the legal cultures in post-communist societies. The article concludes that legal reform assistance needs to further individualize programs for the conditions in specific countries, and that assistance programs should more fully integrate ADR. I do not recommend that all forms of ADR are always applicable in all countries or in all legal reform programs. Instead, I recommend that ADR in its various forms should be an integral part of the analysis of how to approach legal and judicial reform.
The Cookie Cutter Syndrome: Legal Reform Assistance under Post-Communist Democratization Programs,
J. Disp. Resol.
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