CNCR Debuts Database of U.S. Restorative Justice Legislation

Published in:  http://www.newswise.com/:

Released: 22-Jan-2015 2:20 PM EST  Source Newsroom: Georgia State University

Newswise — The Consortium on Negotiation and Conflict Resolution (CNCR) at Georgia State University College of Law has introduced a downloadable database detailing state-by-state use of restorative justice in the criminal justice system.

“The new database will help those looking to draft new legislation or start new programs,” said Carolyn Lambert, CNCR’s project director. “The project is a real group effort. There is no database this comprehensive to date.”
“With the broad push for criminal justice reform in Georgia and other states, this database is an invaluable resource for proponents of restorative justice,” said Doug Yarn, professor of law and executive director of the consortium.
Among the trends revealed by the database: Zero tolerance policies in schools are beginning to shift to focusing on conflict management, Lambert said.
“It’s an interesting trend and refreshing,” she said.
After a crime is committed, restorative justice seeks to repair the harm by involving those affected by the offense and then collaboratively identifying and addressing the harms, needs and obligations to right the wrong, Lambert said.
Restorative justice often involves bringing victims and offenders together to reach a conclusion. It may be used as a diversion tool, an immediate sanction or post-sentencing within the court context or through a community-based organization.
When exploring the new resource, users will be able to find information by state, including links to the full text of each statute and brief description of the restorative justice content.
In addition, users can find the status of legislation since adoption, content in areas including community conferencing, family group decision-making, restorative justice and victim-offender processes, plus a range of references. The database also will be regularly updated with additions, repeals and other changes to existing legislation.
“For more than 25 years, CNCR has been bridging law, theory and practice in dispute resolution,” Yarn said. “During that time, court-connected alternative dispute resolution processes in the civil justice system have become well institutionalized and understood.
“The use of restorative justice-based processes in criminal matters presents a less understood frontier for dispute resolution. This database reveals much about the current status.”

To learn more or to download the Microsoft Excel file, visit:http://ow.ly/HL2AF.

Promotion and legislation on mediation in The Netherlands | Kluwer Mediation Blog

SOURCE:    By Machteld Pel, Pel Mediation , 07/03/2012

I would like to present an update about the promotion and legislation on mediation in the Netherlands and the possible influence of promotion and regulation on the use of mediation.

Since the end of the nineties, the promotion of ADR has been an active part of the Dutch judicial policy. The four main goals in promoting ADR were: out-of-court resolution of disputes; attaining the best quality or the most effective way of settling disputes; the realisation of various forms of access to justice that make the parties primarily responsible for dispute resolution; and, lastly, less pressure on the judicial system. (Court-Based mediation in the Netherlands: research, evaluation and future expectations, Bert Niemeijer and Machteld Pel, Penn State Law review, 2005, nr 2 p 345 – 378).
One of the hypotheses in setting up the projects was that, as mediation gains in popularity, due to successful referrals by judicial organisations among other things, more people will probably opt for mediation of their own accord, and will possibly do so at an earlier stage. The presence of an organisational referral provision can serve as a stimulus for the use of mediation due to the fact that those who repeat on a large scale will deal with their conflicts differently. Since then, this has resulted in government bodies using mediation or mediation elements in handling conflicts with individuals.
Despite the policy to stimulate ADR, the Justice Minister did not support regulation with regard to mediation because he thought it would hamper the further development of mediation. With the exception of the legally regulated Legal Aid possibility for mediation, the government mediation policy was aimed at allowing mediation as much opportunity as possible by issuing as few rules as possible. (Explanatory Memorandum TK bill 32555 no 3, introduction) According to the minister, it was the responsibility of the professional group to develop quality standards and as long as they have not been crystallized out he has not been a supporter of the privilege of non-disclosure. The government has subsequently subsidized the Netherlands Mediation Institute over the years to help them reach these goals. Mandatory mediation did not fit into the Dutch mediation policy either, according to the minister.
This minimalist approach towards regulation even led to the initial endeavours of the Dutch government to block the EC Commission’s effort to come up with a European mediation directive.
The Directive of the European Parliament and of the council of 21 may 2008 has prompted the Government to change this policy and to regulate mediation by law. The Law was adopted by the Lower House and is now under review in the Netherlands Parliament Upper House. (Bill 32555)
The new law comprises:
• New limitation rules, namely that a mediation stops the expiry of limitation and prescription periods (article 3: 316 paragraphs 4 and 5 and 3, 319 paragraph 3 BW),
• A new article in the Code of Civil Procedure (22a rv) which stipulates that the judge can advise mediation in all cases, and
• The privilege of non-disclosure for the mediator. (protecting confidentiality: no parties/mediators shall be compelled to give evidence in civil and commercial judicial proceedings or arbitration regarding information arising out of or in connection with a mediation process).
• And with regard to enforceability of written agreements, a gap in the law has been closed: an agreement in a referred mediation can now be enforced in all types of procedures.
It is important to note that its application is not limited to cross-border mediations. The Bill to implement the European mediation directive is, as we speak, still before the Senate. But until implementation, there is hardly any regulatory framework for mediation; the relative success of mediation in the Netherlands is due to the bottom-up approach (as De Palo calls it: pragmatic): first do it, then (if really necessary) regulate it. So far, mediation has been entirely subject to private regulation by contract. In the nineties there was not much information on mediation in figures. It is thought that the figures up to 2001 were not very substantial. The promotion of court referred mediation led to the introduction of statistics on mediation figures. The latest publication on mediation figures shows that there were about 52,000 mediations taking place in the Netherlands in 2011, in the following categories:
Family 33% 17058
Labour 25% 12922
Community 18% 9304
Government 8% 4135
Business to Business 8% 4135
Other 8% 4135
These figures outnumber the amount of arbitrations by far, so this supports the idea that mediation (more than arbitration) really allows an extra possibility for parties to overcome their conflicts and that arbitration is only really suitable for a comparatively small number of cases (no more than several thousands).
Due to the fact that the Netherlands has exceeded the time limit for implementation to a large extent, it is to be expected that this incomplete law will pass the Senate unchanged, because it only has the power to reject, not to amend, the law. My expectation is that a rejection is not to be expected, not only because of the time frame, but also because of the minor political impact of this law. Moreover, the Minister of Justice has recently announced supplementary legislation regulating, among other aspects, quality standards and a national register for mediators to be put into effect in 2014. Also, a private member’s bill on mediation was announced by a Representative in the Second Chamber (House of Commons), so for the first time in history it is to be expected that we will have a considerable amount of legislative activity concerning mediation.
The minister will also campaign for a greater familiarity with mediation with the aim that for individuals, businesses and government bodies, mediation should become the norm.
We will see if this legislation will further influence the use of mediation.

The New Method Of Alternative Dispute Resolution: Are We Ready To Mediate? - International Law - Turkey

SOURCE:
Hergüner Bilgen Özeke

Turkey: The New Method Of Alternative Dispute Resolution: Are We Ready To Mediate?

08 March 2012

Article by Hergüner Bilgen Özeke

in

Mediation, as an alternative dispute resolution method, has been on the agenda of the European Union (the "EU") and Turkey for a long time. In 2002, a Model Law on International Commercial Conciliation was drafted by the United Nations Commission on International Trade Law as a guideline in order to harmonize the laws of mediation that may be enacted by member states. In 1998, the EU focused on resolving disputes occurring within EU borders through mediation and, in 2002, a "Green Paper" was published that established the main principles of mediation. Finally, through Directive 2008/52/EC (the "Directive"), certain aspects of mediation in civil and commercial matters were announced for member states. The Directive draws a framework within which mediation law is to be drafted and adopted by the member states, mainly concentrating on recourse to mediation, enforceability of agreements resulting from mediation, confi dentiality, effects on limitation and prescription periods.
Looking at recent developments in Turkey, the Bill on the Mediation of Civil Disputes (the "Bill") prepared by the Ministry of Justice (the "Ministry") is still on the waiting list of the sub-committee of the Turkish Parliament. The Bill follows the framework set out by the Directive on certain issues mentioned above.
The Bill, as explained on its legal grounds, aims to decrease the volume of disputes brought before the courts, encourages litigants to reach amicable solutions voluntarily and facilitates easier access to justice, which is a right protected under the Constitution of the Republic of Turkey (the "Constitution").
The scope of mediation is defined as civil law matters, including those with foreign elements, in which the parties are free to decide. Under this Bill, the mediator is defined as a real person who conducts mediations and is registered with the Mediators' Registry through the Ministry. At the end of the mediation process, the mediator does not make a decision on behalf of the parties, but facilitates an amicable solution by encouraging communication between the parties. Since mediation strictly depends on the mutual agreement of parties, litigants are free to commence, continue or terminate the mediation process. The parties have equal rights when applying for, and during, the mediation process.
As per Article 13 of the Bill, litigants may agree to apply for a mediator prior to, or during, litigation before the courts. Also, the courts may counsel parties regarding the mediation procedure and encourage them to appoint a mediator. Unless otherwise agreed, if one party does not respond within thirty days to the offer of the other party to appoint a mediator, such offer is deemed to be rejected. Moreover, the parties are free to appoint one or more mediators and to agree on the mediation method to be used. In the event that the parties decide to apply for mediation after the dispute has been brought to the attention of the courts, court hearings will be adjourned for a period of three months. The adjournment period may be extended upon the parties' mutual application to the court.
With respect to confidentiality, which may be the most sensitive issue of the mediation process from the view of the litigants, the Bill obliges mediators to keep confidential all information that comes to light during the mediation process, and the parties are also bound by such a confidentiality obligation unless otherwise agreed. Moreover, the parties, the mediator(s) or any other third party, including those involved in the mediation process, shall not present the following documents and statements as evidence before a court or arbitration tribunal regarding the same dispute: (i) invitation to mediate by one party, or either party's willingness to participate in the mediation process; (ii) comments and offers made by either party to resolve the dispute through mediation; (iii) proposals made by one of the parties, or acceptance of a claim or incident during the mediation process; (iv) documents drafted solely for the mediation process. However, such information may be disclosed where it is required by law, or to the extent that it may be necessary to implement or enforce the agreement reached at the end of the mediation.
Moreover, in order to avoid any loss of right, the Bill specifically regulates the effect of mediation on limitation and prescription periods. Accordingly, the period between the commencement and cessation of the mediation process shall not be counted in the calculation of limitation and prescription periods.
Furthermore, with respect to enforceability of agreements, the Bill enables the parties to apply for an execution court to ensure that the agreement arising from the mediation is enforceable. The examination made by the court will be a limited examination as to whether such dispute is a matter wherein parties are free to decide, and that the final mutual agreement is executable.
Finally, it is accepted that mediation is terminated if: (i) the parties reach a mutual agreement on the dispute; (ii) it is ascertained by the mediator following consultations with the parties that efforts towards mediation have been rendered useless; (iii) either party notifies the other party or the mediator of its withdrawal from the mediation; or (iv) the parties mutually agree to terminate the mediation process.
As mentioned above, the Bill has parallel provisions with the Directive. However, despite the moderate views on mediation in the EU member states, there are many counterviews and criticisms in the legal arena within Turkey regarding the mediation process. Opponents base their arguments on a number of grounds in the Constitution, namely, Article 6 that imposes the "state governed by the rule of law" principle; Article 9, which states that the judicial power shall be exercised by independent courts on behalf of the Turkish nation; Article 138, which affi rms that no organ, authority, offi ce or individual may give orders or instructions to courts or judges relating to the exercise of judicial powers, send circulars, or make recommendations or suggestions; and, fi nally, Article 142, which states that the organization, duties and authorization of the courts, their operation and execution procedures shall be regulated by law. The Bill's opponents claim that, if enacted, it would be struck down by the Court of Constitution based on the Articles of the Constitution mentioned above. Moreover, Turkish bar associations and attorneys have also expressed their opposition to mediation each time it comes up as an item on the agenda of the Turkish Parliament, alleging that the Bill is a political instrument, rather than a legal one that aims to facilitate easy access to fair and swift resolution of disputes.
It seems that we will witness a sizeable change in the judicial environment in the country during the implementation of this dispute resolution instrument in practice, if opposing parties are able to achieve their own mediation and the Bill becomes law.
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