Wednesday, October 30, 2013

Mediation and Facilitation

My colleague and friend Beverly Title also asked that I share the white paper I wrote about mediation and facilitation, so here it is.

Mediation and Facilitation
Mediation and facilitation, particularly as those terms are used in a restorative justice context, are often confused. In this paper the intention is to clarify that, in fact, mediation and facilitation come out of two different backgrounds and serve two very different purposes. Based on Christie’s (1977) three major themes regarding an alternative way of thinking about conflicts, this paper explores mediation and facilitation in terms of personalization, participation, and professionalization.
            Mediation is a process based on Western notions of civil law. It is one of the alternative dispute resolution methods, probably the best known[1]. The purpose of mediation is to settle disputes that are based on facts and legal consequences. It usually involves monetary damages.
            A mediator is generally seen as an impartial third party who plays an active role in resolving a dispute between two or more parties. Mediators control the mediation process in order to ensure fairness. Mediation is generally preferred by parties to a lawsuit rather than going to court for a judge or jury to make a decision about negligence and award damages.
            Generally the advantages mediation offers consist of less time to resolve the matter because of large court caseloads; less costs, when you think in terms of attorney fees and court costs; a voice in selecting the mediator, with little or no voice in selecting a judge or jury; less risky; and greater confidentiality, since court proceedings generally are considered to be a public record.
            However, mediation does not address the human consequences of civil disputes. Nor does mediation involve healing the harm to relationships affected by the conflict or restoring harmony to the community and dignity to the individuals involved.
            The central question driving mediation is what does each party need to resolve the conflict. The work of the mediator then is to restate what people are saying in terms of needs, so that some form of compromise can be reached.
            Facilitation in this context is tied to restorative justice processes such as conferences. Because of its historical roots, it is culturally sensitive. It is based on criminal law and is considered to be a complimentary process to the legal system. The purpose of facilitation of restorative justice processes is to address the human consequences and feelings or emotions. Restorative justice is based on the idea of restoring harmony to the affected community and restoring dignity to the affected persons (persons harmed and persons causing the harm) by repairing or healing the harm, particularly to relationships.
            A facilitator assists a group of people with creating a structure or process to achieve the purpose of the gathering through a fair, open, and inclusive process. The facilitator does not control the process; rather, he or she ensures that the participants can talk with one another in a safe environment. Thus, the process belongs to the participants.
A facilitator plays an inactive role in the gathering (be it a conference, circle process, or some other restorative practice), other than creating the structure or process for full participation of all persons affected by the wrongdoing or conflict (including the persons harmed, the persons causing the harm and the affected community), promoting mutual respect and understanding and cultivating shared responsibility for the structure and process. In this way solutions include everyone and agreements reached are achievable and meaningful.
The central question underlying restorative practices is how can we heal the harm (particularly to relationships) resulting from the wrongdoing or conflict? This question is addressed as part of the face-to-face meeting of persons harmed, persons causing the harm, and the affected community in a safe environment.
Restorative justice involves wrongdoing and conflict. In this context wrongdoing involves any breach of a person’s right to freedom from harm or the threat of harm and freedom to be who and what they are. Conflict in this context is interpersonal and involves all those persons and communities harmed by an event, particularly involving harm to relationships.
            However, Christie’s (1977) description of conflicts goes to the heart of the difference between mediation of disputes and facilitation of restorative justice conferences as a response to wrongdoing and conflict. In these conference processes control of the conflict is taken away from the professionals (lawyers, judges, and mediators) and returned to the persons directly affected. In this instance restorative justice is about restoring the right of these persons to participate in a conflict that belongs to them.
            This idea is particularly important in criminal matters. While civil cases are captioned in terms of one party versus another, criminal cases are captioned in terms of the state, crown, or government versus the offender. In this way the person harmed or victim has no right to participation and becomes a non-entity, without a voice.
            Mediation in a legal context refers to disputes and dispute resolution.  In that sense dispute refers to claims or rights over which a lawsuit may be filed. Such a proceedings involves claims or rights between two or more parties involved in a legal proceeding. Unresolved claims or rights are usually resolved in mediation, arbitration, or in the courts.
Importantly, the expert in mediations is the mediator (required to be an attorney in some jurisdictions). Participation in mediation by those most directly concerned with the dispute is controlled by the mediator. Thus, while persons involved in the dispute are allowed to participate, their participation is limited by the mediator in charge of the mediation process and the lawyers (trained to be experts in minimizing and eliminating conflicts), who normally represent participants in mediation as parties to the lawsuit being resolved outside of the court setting. The legal system and court processes generally regulate mediation processes and as a result support the professionalization of alternative dispute resolution by mediators and attorneys.
The historical background for mediation and facilitation is important to understanding the differences between the two processes. Up until the time of the Norman conquest of England in 1066 AD by William, Duke of Normandy (commonly called “William the Conqueror”), people responded to wrongdoing and conflict in a manner that we would now label restorative justice (Van Ness, 1986). So the restorative justice model has served humanity throughout most of its history (Braithwaite, 1998).
After the successful conquest of England, William the Conqueror sought a means of paying for the high cost of engaging in battle. He evidently reasoned if he could take control of the restorative justice model and place himself in the position of the one bringing the legal action rather than the persons harmed, he could then levy fines on persons causing the harm and raise the required monies. In that way courts were created and criminal cases were titled as the King or Crown versus the offending individual. To this day criminal court cases are similarly captioned.
These events resulted in the creation of the western legal system and English common law as much of the western world presently knows it. Mediation is part of this system. Today the dominant way of responding to crime in the western world is based on depersonalisation of the persons affected by the crime, limited participation of those individuals through representation by experts (lawyers), and professionalization of how crime is responded to by creating an exclusive group of individuals (lawyers and judges, who must be attorneys) who control the legal system.
Western social systems tend to avoid or discourage conflicts, rather than recognize conflicts are an inevitable part of building and maintaining healthy relationships. Alternatively, rather than trying to eliminate conflict, restorative justice practitioners believe people should be concerned with how to respond to conflict.
People participate in mediation according to their role (mediator, lawyer, party to a lawsuit). In restorative justice people are respected as whole persons and are not segregated by their role or other attributes, such as sex, ethnicity, physical or mental ability, or socio-economic status.
As Western social systems become more and more dehumanised and depersonalised, people are less and less tolerant of conflict and seek to avoid or eliminate conflict (i.e., zero tolerance, getting tough on crime, etc.). At the same time people have become less concerned with wrongdoing in terms of harm to the dignity of individuals and communities (i.e., rarely are lawsuits brought for libel or slander). As a result some crimes, traditionally at least, were made invisible, such as private matters (i.e, incest, spousal abuse, and family violence) and cases involving large corporations causing harm to vulnerable individuals.
Restorative practices allows for the personal meeting of all individuals affected by the events of wrongdoing or conflict. In this way the events cannot be dehumanised or depersonalised. Offenders see whom they have harmed and how they have caused harm, rather than seeing themselves as victims of an unjust and unfair legal system.
Western legal systems have removed the right of participation of persons harmed by wrongdoing and conflict (victims). In a restorative justice context conflicts are seen to be opportunities for people to exercise their right to participate in the conflict. This right goes to the heart of the meaning of participatory democracy.
Professionals (lawyers, judges, mediators, and arbitrators) have professionalised the response to wrongdoing and conflict. In addition, these experts have failed their responsibility to build the capacity of individuals and communities most directly affected to become the experts in how to respond to wrongdoing and conflict non-violently.
            Restorative practices allow for a meeting of people who are equals in that they do not come together with status because of their roles or power. From this group of equals comes the solution for how to restore the dignity of the individuals involved and harmony to the community.
            In summary, the purpose of mediation and facilitation and the roles of mediators and facilitators should not be confused. Mediation and facilitation come from different traditions and are based on quite different principles. As a result, one cannot assume because a person is a good mediator they will necessarily be a good facilitator, and vice versa. They key idea is individuals involved in mediation and facilitation need to be consciously aware of the differences in purposes and roles between the two processes.

Braithwaite, J. (1998). Restorative justice. In M. Tonry (Ed.), The handbook of crime and punishment. Oxford: Oxford University Press.

Christie, N. (1977). Conflicts as property. British Journal of Criminology, 17(1), 1-15.

Van Ness, D. (1986). Crime and its victims: What can we do. Downers Grove IL: Intervarsity Press.

[1] Other forms of alternative dispute resolution are arbitration and negotiation.

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