There are many different perceptions of what Jirga is and what it is not.  To some, Jirga is sacred and holy.  For others it is a dispute resolution body, and for even others it is the “guardian angel” of society.  To add complexity, Jirga is used with many suffixes and prefixes to apply a common understanding to the various forms and roles of Jirga.  Since the definition of Jirga is based on local understandings and dependant upon the social leadership, Jirga can be hijacked by influential and monopolizers with the intention of accruing undue benefits and exploiting the weak.  Given these varied perceptions, definitions, and uses, it is important that each pattern of Jirga be given a distinct name so that the common understanding becomes shared and legitimate. Space is then created for Jirga to operate in more complex and challenging situations.  Based on our research and comparisons with more universally known terms for conflict resolution, we have attempted to define and categorize the distinctive forms of Jirga.  The basic forms fall under the categories of facilitation, mediation, arbitration, and advocacy.

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Facilitation is a process by which a third party helps to coordinate the activities of a person or a group, acts as a process facilitator during meetings, or helps a group prevent or manage tension and move productively toward decisions. Facilitation is “a collaborative process used to help parties discuss issues, identify and achieve goals and complete tasks in a mutually-satisfactory manner. This process uses an impartial third party, the facilitator, who focuses on the processes and procedures of dispute resolution and decision-making. The facilitator is impartial to the issues being discussed, rarely contributes substantive ideas and has no decision-making authority”[1].

Within the Pukhtoon cultural framework, there are two places that serve as informal forums for community facilitation. One is Hujra, a community owned place for the male members to get together in the evenings and discuss community issues or pass time. The second is the street mosque where people with religious orientation find space to discuss issues in the light of Islam and seek the opinion of the Imam (pastor).

In the traditional Jirga, however, the rules of facilitation differ from the ones in Hujra or the Mosque. In the Jirga process, the Jirga members would go to the Hujra or house of the concerned party and discuss the issue. The same Jirga might do a separate facilitation for the other party in that party’s house. The value attached to going to someone’s place in Pukhtoonwali is synonymous with the concept of becoming a guest. Since a guest is assured safety, respect, and space, the party concerned cannot afford to be rude to the visitors. This is a form of separate facilitation in which the ground is leveled for a one to one talk between the parties. In this pre-mediation stage, the interveners or the Jirga members sort out many issues between the parties by removing confusions and identifying common ground between the parties. This kind of initial facilitation may even be undertaken secretly as sometimes the intervener may feel that the process of mediation will be hindered by some other stakeholders in malicious ways. This is true particularly when the elders of a party or group might want to resolve the issue, but the youngsters are eager to take revenge in the light of Pukhtoonwali. The elders therefore can use their prerogative to advance the talk before the youth can escalate the conflict. A decision of elders as such is binding upon the youngsters of the concerned party.

In another form of facilitated intervention, community leaders invite the public to come forward to discuss issues of importance for the community and make collective decisions.  The art of collective facilitation is practiced within the context of Pukhtoonwali where elders allow freedom of speech to the youngsters and junior members of the Jirga are encouraged to speak first. The leadership at the end summarizes the brainstorming and a collective decision is announced for approval of the community.

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“A structured dispute resolution process where an impartial third party, the mediator, meets with disputants in an effort to identify the issues, explore options and clarify goals. The mediator facilitates face-to-face meetings of the parties to assist them in reaching a mutually-acceptable agreement.  Parties reach agreement freely, voluntarily and on the basis of informed consent. Mediation is assisted negotiation. As the "process expert," the mediator helps the parties negotiate efficiently and effectively”[2]. Mediation is a tool that provides third party intervention where parties undertake a structured and peaceful dialogue to decide their future course for themselves. The underlying assumption in this case is that the parties are empowered to take responsibility for their own lives and comfort. Mediation uses trained neutral third parties to help the parties in dispute “talk” their way to an agreeable solution. A mediator guides the "talk," ensuring that each person has the chance to present her or his views and suggestions for resolution. The disputing parties decide what issues need to be addressed and what resolutions best meet their needs. In Pukhtoon society, Pukhtoonwali provides the basic framework in which the mediation is undertaken.

Mediation is applied at all the stages of a conflict in Pukhtoon society. In the preventive role, interveners approach the parties when there are tensions between the parties and no clear violence has taken place. Interveners at this stage listen to the respective stories of the parties and help them come out with issues in a peaceful manner, so that possible solutions can be identified. This also helps the parties communicate their issues without meeting each other. If a positive level of communication is established at this stage, a violent stage of the conflict is avoided. The Jirga may hold separate sessions with the parties in the start, but eventually the purpose is to enable the parties to sit face to face and discuss the issue in a peaceful manner. In mediation, the interveners may not make recommendations to the parties, give their own advice or opinion, or predict what could happen if the conflict is allowed to escalate. This is done for two reasons. One is that the parties know what they are likely to face in case the conflict escalates, and secondly, identification of a future scenario, when the conflict is allowed to escalate towards violence, could highlight weaknesses of one party over the other.  The weaker party may take this as an attack on their honor and get ready to respond with full fury, thus killing the purpose of a peacebuilding intervention.

When the Interveners find out that the parties are preparing to launch offensives against each other, the Jirga has little option but to plead or to insist that the parties remain peaceful so that a new Jirga, mutually agreed to by all parties, is formed to help them settle their issues. If violence does occur, the Jirga members once again go in as interveners to undertake mediation, such that parties are enabled to talk to each other through peaceful means. In some cases, the Jirga shuttles between the parties even when there is no immediate threat to peace or public tranquility.  Jirga members may mediate between neighbors or close relatives who are not on talking terms with each other.

Jirga members are neutral in the process. Their neutrality towards issues earns them the confidence of the parties. To retain this confidence, Jirga refrains from taking sides or passing judgments or a decision. Sometimes this notion of neutrality is seriously challenged by those who think interveners must be biased towards the ultimate goal of achieving justice for the oppressed. When the Jirga members feel that a party is using coercion, or one party is too weak (physically, intellectually, socially or economically) to reasonably resist pressure from the other side, or one party is being too harsh, the Jirga, as peacebuilders, choose to take the side of the weak and oppressed in a suitable way.

Jirga applies reflective methods of storytelling and retelling with a focus on repairing the relationship. This is quite similar to the concept of transformative mediation in the western context.  Transformative mediation focuses on restoration of the relationship in addition to resolution of issues. The important component of this kind of mediation is that the parties understand the human aspect of the dispute and recognize the needs and interests of the other party.  This is undertaken exclusively as one method or combined with other methods of intervention.

Mediation defines a process, which enables the parties in the dispute to decide what is good for them. Keeping in mind the spirit of the ends of justice, mediators facilitate the process further by helping the parties identify issues, start from the common ground, and generate alternatives. It is necessary that the parties feel empowered in the process.

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“The process by which the parties to a dispute submit their differences to the judgment of an impartial person or group appointed by mutual consent or statutory provision”[3] is called as arbitration. Unlike facilitation or mediation, arbitration involves making judgments, which implies that there needs to be a mechanism for implementation of these judgments. Therefore arbitration is generally viewed only in the context where formal legal framework is available. However, the concept of Arbitration has been in practice in all traditional societies for ages. As a society, Pukhtoons are inclined to offer, as well as undertake, arbitration more often than other methods of dispute resolution. This is particularly common in the tribal areas of NWFP and Balochistan where the interveners obtain the consent of the parties to decide about their issues, whether civil or criminal, through a Jirga. A similar pattern was also adopted in the Panchayat system in the Punjab province of Pakistan. Arbitration is most successful in corporate environments or on other civil disputes such as rent cases, labor, construction, and securities regulations, where an umbrella legal structure is available to support the processes of arbitration and enforce its outcome.

The process of arbitration offers a few benefits when compared with regular judicial litigation. It saves the time of the parties in comparison to the time it takes to have a civil case processed through a court of law. It also saves the time of the court, thus reducing the workload on the judiciary. The process is cheaper as it does not involve the expenses of hiring a lawyer and of paying court fees. 

Arbitration can be seen as a simplified version of a judicial trial, involving simplified rules of evidence and few formalities. Both sides either agree on one arbitrator, or each side selects one arbitrator and the two arbitrators elect a third to comprise a panel. Arbitrators hear the parties, identify issues, collect necessary evidence and give a balanced verdict, which is not in contrast to the wider principles of justice and fair play. The decision of the arbitration cannot be appealed, however, subject to certain conditions, parties may ask for a review or revision of the decision.

Neutral and independent individuals or groups like Jirga can work as arbitrators. In the tribal areas of Pakistan, FCR 1901 provides procedural rules that govern the arbitration process and a code of ethical conduct that governs the arbitrators’ actions.

In the Pukhtoon culture, mediation is considered a weak intervention as the interveners or Jirga do not have enough powers to summon the parties, record the evidence, and announce decisions based on justice. The perception that mediation cannot provide resolution of disputes, particularly when the parties do not have personal capacities to handle the issues peacefully is quite valid. However, it is evident that many of the processes undertaken by the Jirga are more like the processes of mediation rather than arbitration. 

In the government influenced tribal areas of Pakistan, the rules applied for Jirga as a body for arbitration are quite similar to the provisions of the “Arbitration Act of 1940” as enforced in Pakistan. The arbitrator could be mutually selected by the parties or the government official supervising the process may help the parties nominate an appropriate arbitrator. In some cases, the parties may be under a written contract or agreement to resolve their future disputes through a Jirga (arbitration). In other cases, the parties may agree to have their issues decided through arbitration rather than direct negotiation. The names of the arbitrators may be agreed upon by the parties at the time of writing a contract or a later date.  All parties to a dispute must agree and trust the nomination of such arbitrators before the arbitration takes place, however. When the parties are unable to agree on the nomination of Jirga members, and still public peace is threatened, the community can form a Jirga to help resolve the issue. The Jirga may be supported by a force of volunteers or government forces to uphold a temporary truce until a mechanism for resolution is decided upon amicably.

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 Advocacy is “the act of pleading or arguing in favor of something, such as a cause, idea, or policy; active support”[4]. Primarily, Jirga as an institution advocates for the code of Pukhtoonwali. Within the code, Jirga tries to find and apply the basic principles of peace and justice such that ends of justice are achieved and every possible effort is made to undo the harm done to the victim.

Jirga can take the side of a weak party against a strong party by declaring that the high-headed party is a little too arrogant. Such blame by the Jirga is considered a serious violation of the norms of Pukhtoonwali that only few can afford.

A Jirga can also take up an issue of the collective cause and take action on the subject. In some cases in the settled districts of NWFP, Jirgas were able to put wildlife protection laws in place. Similarly, in the tribal areas of NWFP, many cases of promoting girls’ education have been launched with the help of local Jirgas.

Similarly, in the Afghan refugee camps, NGOs and donors working on “mother and child health programs” needed access to women.  In the Pukhtoon cultural context this was difficult, as it was never done before by anyone.  The interveners therefore initiated a dialogue with the male members of the community (usually a Jirga).  The interveners educated the Jirga on the importance of the mother and child health and the men finally agreed to allow female health workers to talk to the women on a regular basis and educate them on the subject of family health.

This and other examples depict the use of the institution of Jirga by the NGOs and donor agencies for different kinds of intervention undertaken for the development of communities.