IFES Practitioner Brief on Alternative Dispute Resolution in Elections Indonesia and the Malawi Election Commission. IFES is thankful for the contribution of election practitioners, EMB members, and judges, who contributed to the development and review of these case studies on use of ADR in elections. Purpose and Scope of this Paper ADR has considerable potential for helping resolve disputes and enhance trust in the electoral process, yet information is scarce on how it can be used most effectively. This gap prompted the development of this practitioner brief. EDR encompasses the range of complaints, disputes, violations, and offenses that can occur throughout the electoral cycle, including post-election cases that challenge the results of elections. However, this paper focuses specifically on ADR mechanisms for pre-election and Election Day disputes. Our research and consultations with arbiters and judges confirm that most ADR mechanisms are focused on voter registration, candidate nomination, intra- or interparty disputes, and campaigns up to and including Election Day. In most countries, the legal framework clearly defines the jurisdiction of a court of law to address post-election results disputes within prescribed deadlines. It is important that these cases be addressed by a court of law in a timely manner, rather than through a conciliation or mediation process, as a clear winner must be determined. Occasionally, election results disputes can escalate into political crisis and risk serious violence, where international or regional mediation may occur post-election. Some jurisdictions may even exclude the use of mediation for post-election disputes when specific, tight adjudication deadlines are prescribed. 14 During a consultation session led by IFES in the margins of the Africa Electoral Jurisprudence Network in July 2022, an electoral judge from Malawi shared that “For post-election, ADR comes as a difficult enterprise in Malawi under the civil procedure rules limiting the practice of mediation, but (…) for pre-election disputes, it should be highly encouraged.” If the formal justice system fails, international mediation or extraordinary ADR mechanisms can be helpful to resolve the conflict, but this remains exceptional. Disputes relating to election results have therefore been excluded from the scope of this paper. 15 This paper also does not assess administrative adjudication by an EMB or another body in a quasi-judicial capacity, as such mechanisms are usually set out in the law as mandatory and binding processes rather than voluntary and, as such, are considered to be conventional EDR. 16 The focus of this paper is on the implementation of ADR mechanisms that aim to reach voluntary agreements to resolve disputes between different stakeholders during the election, often with the assistance of a third party. We focused our research primarily on ADR mechanisms led or coordinated by EMBs, which can include mediation committees and conflict management committees. We also have 14 In Malawi, rules of civil procedure provide that in expedited proceedings like post-election disputes, mediation cannot be invoked as it could derail the speedy adjudication of disputes. 15 It is important to note that even when ADR is used, all of the legal frameworks studied either provide explicitly for a right to appeal if mediation fails or do not prevent a party from filing an appeal before a tribunal or court in parallel or after the mediation. 16 Vickery, 2011, p. 229: “In brief, ADR refers to any method that parties to a dispute might use to reach an agreement, short of formal adjudication through the courts. This can include both formal administrative law systems, in which regulatory agencies establish special rules and procedures for resolving disputes and complaints, and case-specific, ad hoc processes of negotiation and mediation, in which parties seek to reach voluntary agreements to resolve their disputes, often with the assistance of an impartial third party.” However, GUARDE makes clear on p. 238 that rather than a bright line distinction between ADR and EDR, the various approaches can be visualized on a continuum, with a greater degree of party involvement at the ADR end of the spectrum and a greater degree of time and resources spent at the EDR end of the spectrum. 11