In December 1996, Guatemala signed the last of a series of Peace Accords to end a 36 year civil war. Conflict resolution was seen as an important element of those documents. In fact five separate Accords, with forty different commitments, address dispute settlement. Since Guatemala has twentythree indigenous languages in addition to Spanish, any public service delivery must recognize ethnic diversity. As a result, todays discussion of conflict resolution in Guatemala must address the historic roots of conflict in a multicultural context. This article examines Guatemalas context for dispute resolution. It then examines empirical data on how conflicts get solved, and concludes with recommendations for future action.

The Guatemalan Context

Guatemala is wonderfully culturally diverse. The descendents of the ancient Maya represent about half of Guatemalas population. A mountainous terrain has meant that communication and travel are difficult. This in turn has worked to preserve many century-old traditions. In a formal sense, Guatemalas rich diversity is recognized in the Peace Accords themselves. While diversity represents a cultural heritage and wealth, it has also been the source of conflict.

In the recent civil war, 200,000 Guatemalans died, most of them among the indigenous. While the war was fought between guerillas and the army, both sides were comprised of mostly indigenous soldiers. This context of a history of conflict is often the subtext or underlying current to present disputes. True conflict resolution must recognize this nature and history if a solution is to be found.

Further, while diversity may be formally recognized in the Peace Accords, in fact its nature and value is constantly questioned. This in turn creates a perception of an overlay of illegitimacy for an intolerant, western system of government. Institutional rejection of indigenous values, practices and traditions itself is a strong, permanent element of an overarching conflict between the indigenous and their non-indigenous European-descendent, known locally as "ladino"[1] compatriots. Ladino strategies to help the indigenous, from "development poles" to "model villages," have likewise been summarily rejected by the indigenous as not being respective of the multicultural needs of the indigenous population.

Historically, indigenous reorganization processes have had as their primary goal the control and subjugation, dismantling institutions, nullifying regulations and authority systems, and modifying social organization to resist all political and cultural forms of resistance[2] Discrimination against Mayan culture is pervasive in Guatemalan history. Prior to 1965, the Guatemala Constitution officially promoted a policy of assimilation of the Maya population into the "national culture." Even earlier, the historian Guy Heraud points out that only some dictatorships or totalitarian regimes forbid at least once, the use of certain languages.[3] Such a statement, although generally valid, is not enough descriptive for Guatemalan case. The Constituent Congress in 1824, responding to its ethnocentrism ideology, established in its Legislative Decree No. 14, that: considering that there should only be one national language, and as long as the languages that original indigenous peoples keep are diverse, and they are few and not perfectresolves that persons, in agreement with municipalities, will try by all analogous, cau - tious and effective means to suppress the original indigenous language(the underline is from the authors).

Then dictator Justo Rufino Barrios, the hero of the "Liberal Reform" in Guatemala, signed a decree (Acuerdo Gubernativo) to cease recognizing the mam indigenous group, one of the largest populations of the Maya. Decree No. 165 dated October 13, 1876, stating that that mam indigenous group from San Pedro Sacatepéquez, San Marcos should be declared as "ladino", and had legal effect only within that village. This was, in legal terms, the death of a people, language and culture. Maya were detained by police for things like not wearing shoes. Children were forced to speak Spanish, much the way General Franco in Spain forced Spanish on Catalonia, or the U.S. government made the Sioux to speak only English in schools.

Official intolerance of indigenous practice is one problem. How that indigenous practice is manifest complicates matters further. In a western system of social custom and law, if one breaks a law, there is a consequence or sanction. In the Mayan culture, laws are not written down. How do the "ladinos" know what the rules are? What are the sanctions for breaking a Mayan law? Similarly, if one breaks a social norm in western society, there is also a sanction.

In Guatemala City, it is common for men to shake each others hand upon entering the room, for men to kiss women on the cheek, and for women to kiss each other on the cheek. It is considered impolite not to do so. However, the indigenous from rural areas do not kiss each other. They have a different culture. In the ladino society, under Constitutional government, it is fairly easy to distinguish law from social norms. In rural areas, where local residents have never been allowed to form a nation, distinction between social customs and laws is much more problematic. It is worthwhile noting that the Mayan "cosmovision" integrates rather than separates human, in contrast with a sterotype of activities from the Judeo-Christian perspective.

In some places and cultures, including in some areas of Guatemala, midwives play a key role as natural judges in their community. They are responsible for sorting out family disputes, enforcement of phyto-sanitary regulation and other local conflicts. They do so without formal recognition of authority by the state. Are they guilty of usurping governmental authority? The Guatemalan Criminal Procedure Code authorizes Justices of the Peace to solve minor disputes. But this does not cohere with the traditional legal systems. Which should govern? Perhaps the broader question asks how Guatemala became so hostile to local, customary legal practice. At the time of the conquest, Spain itself was emerging from 400 years of war against the Arabs. The Spanish government was bankrupt and in ruin. Thousands of ex-combatants were now displaced. As part of a broader transition strategy, the Spanish government sent these soldiers to be the vanguard of the conquest in the new world, attracting them with the promise of land. German commercial interests financed the endeavor, and new world governance took a back seat to the personal interests of the ex-combatants. First, a new spirit of self-enrichment emerged as the Spanish promoted the policy of the "Quinto Real," in which part of land taken by the invading army would be passed on to the Spanish crown. Second, the Spanish changed indigenous social organization for ease of administration.

Third, the Spanish brought Christianity, representing a break from the indigenous world religious view, often referred to as their "cosmovision," a complex, spiritual definition of the relationship between man and creation. From the date of Spanish conquest, indigenous law began to fall.

After the conquest, Francisco de Vitoria, a Spanish cleric, noted the natural superiority of the Spanish and the Europeans to the indians. He asserted that the indians were not human beings, asserting that they are almost without mental capacities - meaning that they think with difficulty. And they certainly were not capable of governing themselves. Under these circumstances, self-government was out of the question. The indians needed Spanish rule. Under such a world view, at the time a Christian view, as found in the writing in St. Thomas Aquinas, a craftsman of Christian philosophy) people in general were ranked according to station. At the top were men, next women and at the bottom children. Indians were added to the list in fourth place.

The thought of racial superiority was carried forward in Guatemala to its very Act of Independence. In fact, the prejudice was still broader among the founding fathers because they did not recognize anyones free determination (indigenous or not), but rather thought that all should be ruled by the elite group. The very first clause, the document states that Independence must be proclaimed before the fearful case in which the people take it upon themselves to declare independence in their own right. While it did not specifically refer to the indigenous, since the indigenous were the majority, they represented "the people."

That being the general desire of the Guatemalan people to be independent from the Spanish government, and without prejudice of what the Congress that shall be formed might determine upon it, the Political Chief orders to publish to prevent any consequences that would be dreadful if it is declared by the people itself.

(The underline is from the authors). Still, indigenous law has survived, at least in some fashion, at least in some parts of Guatemala. And, the western "conquest" of indigenous legalpractice continues to try to stamp it out. Transitionary Article 16 of the present Guatemalan Constitution is a remarkable example. During the 1980s, when Constitutional law and order were suspended in favor of military dictatorship, the military government introduced a number of measures to stamp out ethnic culture and practice. Development poles and model villages are some examples. The most egregious is perhaps the special tribunals, in which civilians were tried by military authority, without right to counsel or due process. Often the result was summary execution. The current Guatemalan Constitution actually provides retroactive cover for these practices, legitimizing and recognizing their legality in Transitionary Article 16.

Language is another area where indigenous culture has been marginalized. In 1879, dictator Justo Rufino Barrios carried out a mapping exercise (cadastre) to adjudicate titles to land. The entire effort was done only in Spanish. Indigenous groups that did not speak Spanish simply lost their land.

Worse, indigenous groups often did have property titles of their community lands, issued by the Spanish Crown, thanks to the intervention of Fray Bartolomé de las Casas. But the titles were not recognized as valid because the indigenous groups did not explain it in Spanish. In effect, they were expropriated without compensation. More recently, discrimination continues. A 1999 constitutional reform effort was rejected that would have allowed for official use of languages other than Spanish.

Even today, land transactions must be carried out in Spanish. In a real-world look at how the Judeo-Christian belief structure has played out in Guatemala, real conflict emerges with the Maya "cosmovision." Under the European belief structure, again in practice as opposed to theory, in Guatemala there emerged a compartmentalization of ethics. There is nothing unethical or incongruent in social terms about owning a sweat-shop maquila, abusing a spouse, while being a devout member of the church. In fact, at times, honesty itself comes off as foolish. Appearances are often very important. Meanwhile, the Mayan belief structure traditionally has been very integrated, with a very different view of authority. A spiritual guide may also be a judge. A system of positions and authority ("sistema de 110 cargos") dictates civil as well as religious authority and responsibility. Mayans typically do not separate civil and religious responsibilities.

This same story of marginalization of indigenous people is told from the perspective of Guatemalan Constitutional legal history. All of Guatemalas constitutions have followed some sort of armed internal conflict. In this sense, all have reflected in large measure the opinion of those who were winning or had won a conflict. The 1824 Constitution followed independence. Left out were indigenous groups and royalists (who had been loyal to Spain). The 1879 Constitution left out both indigenous groups and the conservative movement (mainly Catholics). In 1945, an anti-dictatorial Constitution left out groups that had been loyal to the dictator Jorge Ubico. The 1956 Constitution, reacting to the Arbenz government, sought to exclude labor leaders, and anyone suspected of having sympathy with leftist groups. Under Arévalo and Arbenz, electoral law reform eliminated the formal communist parties, so these groups adopted the name of Guatemalan Party of Labor. This same exclusion is reflected in the 1965 Constitution. In 1985, the current Guatemalan Constitution was drafted, again reflecting a very conservative approach.

In general, constitutions embody general principles of law, social organization and fundamental rights. In Guatemala, given proclivities for exclusionin citizen participation in the legal process, the Constitutions have represented a manner of political organization in terms of a deal among the politicians and those with real power. It has not necessarily meant that the governed have deliberated and consented to a new legal framework. The process is one of racial, political and religious exclusion. In that sense, unfortunately, parallels can be drawn with the exclusion of African- Americans in the US.

Legal discourse further clouds the ability of Guatemalan indigenous groups to engage in political process and enjoy self-determination. The Guatemalan state is not necessarily the same as a nation in terms of ethnicity, language and culture. To deny indigenous groups a sense of nation further excludes them from participation in the state. In other words, indigenous groups end up belonging neither to a state or a nation. It is important to note that Guatemalan indigenous groups do not consider themselves as minorities, groups or tribes, but peoples ("pueblos") with right to their free determination.

Today, not one groups has made any claim fore a division of the national territory, although at time some try to approximate certain autonomous characteristics within Guatemalan state. The consequences indigenous people not feeling ownership or participation in "Guatemala" means that they sometimes do not buy into or accept formal legal authority. According to a 1996 survey of Guatemalans, a survey taken just three months before the signing of the final Peace Accord, 75% said that extra-judicial killings were acceptable. Incredibly, 58% thought burning a suspect to death was acceptable. When asked why extra-judicial killings were justified, 74% blamed the state. It appears that Guatemalans feel justified in breaking the law and carrying out extra-judicial killings, and rejects any personal responsibility for this. To this date, extra-judicial killings continue. This survey documented that the jurisdiction of the State is not recognized neither by indigenous nor non-indigenous groups. The Laws lack of legitimacy comes not only from ethnic discrimination but also from social exclusion and lack of effective citizen participation.

Guatemalas most monolingual, non-Spanish speaking Department is Alta Verapaz. There, language is a particular barrier to justice. In a 1998 survey by MINUGUA, 91% of citizens there were identified as indigenous, with 89% of the population speaking Qeqchi.[4] Of the judges in the Department, 29% claimed to be bilingual, while 57% reported only speaking Spanish. Of public governmental offices there, only 23% had any form of translation services. The majority, 69%, had no services for persons unable to speak Spanish.

Curiously, the survey found that 8% of public institutions were not even open when the survey was carried out.[5] 67% of the indigenous in Alta Verapaz questioned ethnic discrimination in the justice system as being a major barrier, while 58% added monolingualism. Another 42% asserted impunity, 33% corruption, and 30% not knowing the law. The universe of the survey consisted of indigenous leaders from different regions in Alta Verapaz; in hierarchical order they identified the main problems by giving them a score; that is the reason why adding percentages is higher than 100. The top two concerns, discrimination and monolingualism, converge on one level in terms of the states unwillingness or inability to provide services to the citizenry in terms that respect local language and culture.

Incredibly, corruption comes well down on the complaint list. It may be that the indigenous are treated so badly by the official actors, that they do not even get a chance to bribe them. Perhaps if corruption were perceived as an issue, it would actually represent an advance in access to justice! The indigenous are even barred from corruption.

To begin to address these barriers, USAID initiated a program in 1998 that led to creation of seven community-mediation centers in rural areas near Quetzaltenango and the Boca Costa[6]. These centers had mediators trained by USAID in dispute settlement techniques through a grant to the National Center for State Courts. The community leader themselves then set up the Mediation Centers, again with USAID support. And they have been very successful. Mediators resolve 73% of all cases that enter the door, whether they be civil, commercial, family or criminal. Of the cases settled, 73% of settlements are fully complied with in less than one month. Non-compliance with settlement terms occurs in just five percent of cases. Mediators have served on an ad honorum basis, and the Centers have survived on community support and participation.

The initial success of this strategy gave rise to new questions. How could mediation be extended to other communities? What were the secrets of success? To answer these questions, USAID commissioned a study leading to definition of a strategy to further mediation and access to justice in indigenous areas.