Mediation to become an obligatory option for Irish Legal Disputes

Source: www.friarylaw-mediation.ie

– Dan Buckley (Irish Examiner Newspaper)

Lawyers will be obliged to advise their clients to consider mediation to resolve legal disputes, under new legislation outlined by Justice Minister Frances Fitzgerald yesterday. The Mediation Bill, being drafted by the Office of the Parliamentary Counsel, requires solicitors and barristers to advise parties to disputes to consider utilising mediation as a means of resolving them.

Where court proceedings are launched, it will also oblige parties to proceedings to confirm to the court that they have been advised of this process and have considered using mediation as a means of resolving the dispute. “The purpose of the bill is to promote mediation as a viable, effective and efficient alternative to court proceedings thereby reducing legal costs, speeding up the resolution of disputes and relieving the stress involved in court proceedings,” said Ms Fitzgerald.

One of the country’s leading mediators yesterday gave a broad welcome to the bill but said she feels it could have gone further by involving more comprehensively other professionals like accountants and medical practitioners."It is wonderful to see coming into law a regime that deals with all the aspects of mediation and links the necessity of giving advice to what happens in court,” said solicitor Patricia Mallon, a partner with Eoin Daly Mallon in Cork.

“It gives people a more credible option and means that mediation can operate as a default mechanism, particularly in family law disputes, rather than the current system where the adversarial models is the default.”

However, Ms Mallon, a collaborative law practitioner and specialist in family law, said it should allow for the involvement of more disciplines.“I do a lot of co-mediations, working with psychotherapists and other disciplines. All conflict is a ball of legal, financial and emotional issues. If you address one issue without the other two, it can lengthen the process and is not as efficient as it could be.”

The bill is expected become law before next year’s general election, although Ms Fitzgerald acknowledged that there was no exact timetable for that to happen.“While it is not possible to give a specific date for publication of the bill at this stage, I intend to proceed quickly with enactment of the bill following its publication later this year,” she said.

Under the new law, parties in family law cases will be required to attend an information session on mediation.Where court proceedings have commenced, a judge will also be allowed to invite the parties to consider mediation and suspend the case to facilitate the mediation process.

The minister made the announcement as she launched the 2014 report of the Free Legal Advice Centres (FLAC) which shows that queries about housing rights increased by 82% last year compared with 2013. This increase, the sharpest on any legal issue dealt with by Flac, followed an 83% increase in calls on housing between 2012 and 2013.

Article featured in the Irish Examiner, July 07, 2015.

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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Specific Questions relating to this article should be addressed directly to the author

First Mediation | Jeffrey Krivis | Mariam Zadeh » Blog Archive » 10 Steps In Preparing For a Mediation

post's source: 10 Steps In Preparing For a Mediation

Dispute Resolution (ADR) is a system of processes designed to assist parties in resolving their disputes economically and more quickly than the traditional court system. Its value lies in reducing the time, cost and uncertainty in the civil justice system. The key to achieving successful results in ADR is preparation. The following represents the basic steps for an attorney to prepare for a mediation hearing.
Step 1CHOOSE THE RIGHT ADR PROCESS The various ADR processes have their good and bad points, and some are better suited to certain situations than others. Here, in a nutshell, are the most common:

• MEDIATION A private, voluntary process in which an impartial person facilitates communication between the parties to promote a mutually agreeable settlement.
• JUDICIAL SETTLEMENT CONFERENCE A neutral individual, usually a retired judge, listens to an abbreviated presentation of the case and renders an advisory opinion on factual or legal issues, as well as damages.
• MED/ARB Parties agree to mediate with a stipulation that any issues not settled will be resolved by binding arbitration.
• ARBITRATION An adversarial process in which the disputants select a neutral third person to listen to evidence and render an award. Can be either binding or non-binding, and may involve “high-low” limits.

Step 2UNDERSTAND THE RULES AND GUIDELINES OF THE MEDIATION PROCESS. At this stage you want to make sure that everyone understands the rules of engagement. By taking the lead in doing this, you will avoid problems later.

• CONFIRM AGREEMENT TO THE HEARING AND COSTS INVOLVED The written Agreement to Mediate sets forth the procedures for the hearing and who is responsible for the costs. The agreement can be designed to fit your needs. However, since mediation is non-binding and can be terminated at any time, the agreement is normally flexible so that the parties can control their own destiny. The main components of the agreement include confidentiality, cost and selection of the mediator.
• CONFIDENTIALITY Make sure the written agreement is executed by all parties confirming the confidentiality of all information learned during the process, and that the information cannot be used later against someone in court. (The rules of evidence in some states may not provide adequate protection). During the hearing, the mediator will get your permission before disclosing information you revealed in a private session to the other side.
• FORMALITIES AND INFORMALITIES Usually a hearing is informal, although each mediator has his or her own style. Ask the mediator about his/her style or approach in advance of the hearing or at the beginning of the session. Mediators vary in their insistence on following formal evidence rules. Determine what or whether the mediator has any preference in how you should present your side of the case. Be sure that everyone with authority to settle is present.

Step 3CREATE A CASE ROAD MAP As with a full-blown court case, you need to plan your preparation. Do not let the informality of the procedure lull you into something less.

• IDENTIFY THE ISSUES IN DISPUTE Make a written list of what you consider are the critical issues of the controversy. This will allow you to focus the negotiation on those issues, and assist in your objective evaluation of the case.
• DO A “CRITICAL INFORMATION ANALYSIS” Make sure you have all the information you need regarding liability and damages before the hearing. If legal research is involved, bring copies of appropriate research to the hearing to share with the mediator.
• ANALYZE HOW YOU WOULD TRY THE CASE Evaluate the strengths and weaknesses of the case from an objective perspective. What verdict would a jury likely return in the case, or what conclusions would a judge make. Consider what your realistic expectations are, based on criteria that can be supported by the evidence. This allows for a balanced approach to the case, rather than a subjective evaluation.
• PLAN YOUR PRESENTATION Consider what information about your interests and the facts of the case you want to disclose to the mediator, and what information you want to disclose to the opposing side. Usually, full disclosure to the mediator helps facilitate a successful settlement.
• PREPARE A SIMPLE CASE SUMMARY Also known as a “position” statement or brief, this is your opportunity to outline the facts of the case, issues in dispute, damages and other factors. Consider the value in providing a confidential statement to the mediator which includes your thoughts on what criteria you will use to determine when an agreement proposed is fair, how you think the other party realistically views their chances of success, and what you think the other party views as a fair outcome for both sides.

Step 4
DEVELOP A NEGOTIATION STRATEGY Although the mediator will meet with the other side to communicate offers and counteroffers, you should have a clear idea of how you want the negotiation process to proceed. You should also consider how to make your proposals palatable to the other side.

• IDENTIFY THE CURRENT NEGOTIATING POSITION OF THE PARTIES Do a mental review of the negotiation activities conducted to date so you know where to begin, or where the opposing party might perceive where you will begin. This is a good opportunity to remind yourself of your common goals.
• DETERMINE “WANTS” AND “NEEDS” Often referred to as “interests,” these are the silent movers that motivate people to change their “positions” in a negotiation. Your position is something you decided upon, while your interest is what caused you to decide.
• CONSIDER “WHAT’S AT STAKE” Objectively evaluate your case through information obtained through litigation, or independent, verifiable criteria such as jury verdicts.
• CREATE FAVORABLE PERCEPTIONS Negotiation is a series of communications in which the parties attempt to alter each other’s perceptions. To be successful, you must be able to manage the information received by the other side. Do this by listening actively, respecting the other side’s claim, posing arguments, making proposals and offering alternatives.
• DEVELOP OPTIONS FOR MUTUAL GAIN Consider whether the settlement options available are preferable to proceeding to trial. This requires a cost analysis of settling at mediation versus going to trial, as well as close reflection on what options are available to the other side.

Step 5
OBTAIN AUTHORITY TO SETTLE Be prepared to come to the table ready to negotiate. That means having the financial ability to settle the dispute with adequate reserves in place. Meet in advance with whoever might need to be consulted about the prospect of an immediate settlement (attorney, wife, husband, business associate, or other necessary person).
Step 6
DETERMINE WHICH PEOPLE WILL ATTEND THE HEARING AND WHAT ROLE EACH WILL PLAY

• PLAINTIFF(S)
• ATTORNEY(S)
• DEFENDANTS
• INSURANCE REPRESENTATIVES

Step 7
PRE-MEDIATION PREPARATION Basic preparation steps include the following:

• Consider what you are going to disclose both in pre-mediation and during the mediation.
• Use the mediator. In private, preliminary telephone conversations before the hearing, talk with the mediator about your presentation and approach to the case, what information you and the other side need to know in order to evaluate settlement options.
• Anticipate what story you will tell during the opening session of the mediation and rehearse it; and
• Organize Documents. Have copies of documents, photos or other writings available before the hearing begins.

Step 8
OPENING STATEMENTS Three simple rules for your opening statement:

• BE SIMPLE, CONCISE AND CLEAR Tell a short story in plain words.
• DON’T WAIVE YOUR RIGHT TO AN OPENING STATEMENT
• TALK ABOUT YOUR SIDE, NOT THEIRS

Step 9
MAKE IT EASY TO REACH AGREEMENT Throughout the process, and even before it begins, you should think about what it takes to make it easy to reach agreement. Steps include:

• Cultivating a sense of mental detachment. Take yourself out of the negotiations playing field and insert the dispute in your place. This allows you to talk about the issues in dispute, rather than getting bogged down in personality games.
• Meeting the other side’s needs. You can better understand your opponent’s needs by listening actively, acknowledging and paraphrasing their arguments. Express your views without provocation. This is an effective tool to “disarm” your opponent while understanding their point of view.
• Problem Solving. This is the time to recast what your opponent says in a form that directs attention back to the problem of satisfying both side’s interests. Ask “what” and “how” questions to move toward a solution. Sometimes asking “why” will cause your opponent to be defensive.
• Considering the consequences. Ask reality testing questions such that your opposition will understand what will happen if agreement is not reached.
• Bridging the gap. Reach agreement by helping your opponent save face. Try to satisfy unmet needs and involve your opponent in the process. Don’t rush into the agreement, it will fall into place naturally.

Step 10
REACHING AGREEMENT After all of the hard work that you have done to reach agreement, take a few final steps to make sure that there are no disappointments:

• Put the agreement in writing. Don’t wait — do it immediately upon reaching agreement.
• Make sure the parties can perform the agreement; and
• Congratulate each other. You deserve it.

The Human Touch: Balancing Empathy and Impartiality in Mediation | Kluwer Mediation Blog

Source:
27/02/2012 By Diane Levin, Diane Levin LLC

In just a few days, I’ll be welcoming a group of approximately two dozen individuals to the first evening of a mediation training that I’m teaching during March. It’s a privilege to guide them as they begin to master the basics of mediation practice. There’s something about teaching and training that helps keep concepts and approaches fresh for me as a practitioner. I get to be a student again myself, seeing mediation practice through beginner’s eyes.

One of the challenges I find that new mediators face is how to show empathy without sacrificing neutrality. They struggle to find their balance. We use an advanced case toward the end of the mediation training as a way to explore the role of emotions at the table. This role play involves a family business dispute, based on a true story; fighting over the fate of a company founded by two brothers, one of them recently deceased, are the surviving brother and his brother’s widow, each grief-stricken at the loss of someone important to them both. All too often, beginning mediators, faced with these dynamics, miss the opportunity to acknowledge the shared loss. Disregarding the parties’ tears or emotional states, some new mediators press on, urging the parties toward untimely settlement.

I have no doubt for a moment that these new mediators, faced with genuine grief instead of the grief feigned by fellow trainees acting a role, would respond with compassion, and find the right words to say. Constrained by their misconceptions of the boundaries of the mediator’s role, they struggle. They fear that showing empathy or understanding will shatter their impartiality as neutrals. And so they hide their humanity behind their professional role.

I recall one case that brought home to me how important a mediator’s humanity can be to tip the dynamics in a more hopeful direction. A colleague of mine asked me to co-mediate a sensitive case with him, thinking that the parties might benefit from the teamwork of two mediators. Two parents, long divorced, had an only child they co-parented. These parents, who had worked together so amicably after their divorce, now found themselves at odds over an important and difficult decision. Their child was profoundly disabled, struggling with daunting physical and mental challenges, and had undergone numerous difficult and painful medical procedures. Their doctors were recommending one last procedure; if successful, it could lead to improved quality of life, but the procedure was complex and risky. What to do? During the mediation, each parent spoke movingly about what this special child had been through. I could hear the sadness in their voices but also pride, and love, too, as they spoke admiringly of their child’s heroism and grit in the face of Everest-sized challenges. They each began to cry as they described the risks of the recommended surgery, and their fear and uncertainty for the future.

You would have had to have been made of stone to have sat in that room in the presence of so much raw emotion and not be moved yourself. I looked across the table at my colleague and saw that his eyes were filled with tears. I could feel the tears fill my eyes, too. The two parents fell silent; they looked from one mediator to another. I could see a look of realization – or perhaps recognition – in their faces; they saw from our faces that we understood, that we felt for them both. Something shifted in the room in that moment. One and then the other reached out and clasped our hands, smiling at us as they blinked back their own tears. The words began to flow again. From discord to union, the two parents worked out a plan for meeting with the doctors, gathering information, and identifying criteria for making the right decision. They had found a way through.

And so I remind the new mediators that I work with that being a mediator doesn’t mean you have to check your humanity at the door. Being yourself in fact may be the best way you can honor your clients.

Post from the Kluwer Mediation Blog

When victim, offender meet - timesofmalta.com

SOURCE

 Friday, February 10, 2012 , by Ann Marie Mangion

Prior to the introduction of the Restorative Justice Act, criminal justice was primarily punitive in its nature. Restorative justice is not something new. It has been in existence for some time and is used as an alternative to punitive forms. However, although restorative justice is not new, it still is comparatively modern, taking into consideration that criminal justice the world over was originally punitive in its nature. In fact, restorative justice came into being due to the failure of the punitive system in preventing further offending.

Restorative justice, unlike the punitive system, advocates forgiveness, healing, reintegration, reconciliation...

- Ann Marie Mangion

Why did the punitive system fail society?

According to Julia Fionda, the punitive system failed due to the traditional penal sanctions that included the collapse of the welfare ideal and of the rehabilitative ideal (Devils and Angels, Hart 2005, p. 175).

Ms Fionda added that the punitive system failed society because it further excluded the offenders from a society in which they already felt ostracised and, moreover, the punitive system ignored the needs of the victims.

In fact, the punitive system was solely interested in punishing the offender. The victim had no place in the punitive system. The victim was simply used and then discarded in the pursuit of determining whether the accused is guilty or not.

Restorative justice is unlike the punitive system. It is not only concerned with the offender but also with the victim and the victim is given an important role in the restorative model.

Fionda opines that “Proponents of the restorative justice approach argue that any attempt to deal with offending behaviour must restore, as far as possible, equality between the parties and maintain equal respect for all involved. So too must the criminal justice system recognise that the victim is equally entitled to consideration in a process that is ordinarily heavily offender oriented and this is achieved by the application of the restorative philosophy” (p. 177).

The aim of restorative justice is to restore the balance because it is believed that when a person commits an offence against another person there will be a shift in balance due to the conflict created. Thus, through restorative means, this model aims to eliminate such conflict and restore the balance.

In fact, the Restorative Justice Act brings into practice two major previously non-existing elements in our criminal justice system. These are parole and the victim-offender mediation.

Although parole has just been introduced in the criminal legal system, still it is not that new to our knowledge. The term parole is derived from the French phrase “word of honour”, according to Richard Worth in Probation and Parole, US, 2002, p. 40. Early forms of parole have been around since the 19th century in places such as the US and Ireland (p.41).

Parole does not merely mean that the convicted offender is set free before having spent the entire conviction sentence in jail but it is a major step forward towards actually restoring the convicted offender back to a society that is ready to ostracise him/her.

However, the major step forward towards restorative justice, and perhaps the most unheard of, is the victim-offender mediation. One might wonder what sort of mediation can be done and what sort of agreement can ever be achieved between the offender and the victim.

The victim-offender mediation offers reconciliation and closure. However, not everyone is eligible to go to victim-offender mediation.

First of all, the offender must admit committing the offence in question and must also be willing to enter into mediation. The offender must voluntarily agree to take part in the victim-offender mediation. The victim, just like the offender, must voluntarily agree to take part and be willing to enter into such mediation.

Whether victim-offender mediation takes place or not will be especially determined by the nature of the offence, including the level of harm caused by or violence involved in its commission according to the law. Not all victims and offenders are eligible to victim-offender mediation and account will be taken of the victims’ motivations in meeting up with the offender and vice-versa.

The personal characteristics of both the offender and the victim will be considered as well as the impact of the offence as seen by both the offender and the victim.

The possibility of psychological repercussions on the victim is also taken into account as well as the offender’s remorse for his/her actions.

What is interesting is that the victim-offender mediation takes place without any legal counsel ends when agreement is reached, when an agreement cannot be reached or when the parties do not wish to carry on with the mediation.

The agreement reached can include compensation for damages, non-pecuniary compensation, community service or even rehabilitation programmes and formal apologies. This is not an exhaustive list.

Restorative justice, unlike the punitive system, advocates forgiveness, healing, reintegration, reconciliation and is specifically aimed at offenders and victims. It also offers support to offenders and closure to victims and also strengthening the relationships in communities.

annmaire.mangion@gmail.com

Dr Mangion is a lawyer and a published author with a special interest in family and child law