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
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
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.
Background
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.
Personalization
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.
Participation
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.
Professionalization
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.
No comments:
Post a Comment