Rubbish bin???

Juhani Iivari

VICTIM-OFFENDER MEDIATION – AN ALTERNATIVE, AN
ADDITION OR NOTHING BUT A RUBBISH BIN IN RELATION TO
LEGAL PROCEEDINGS?

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"An alternative or an additional system?

Increasing regulation in the field of mediation has also led to two approaches to the definition of the role of mediation in relation to the criminal justice system: on the one hand mediation has been given a clearly alternative role in relation to court proceedings, on the other hand it has been regarded as complementary to court proceedings.

Giving mediation an alternative role also gives emphasis to its institutional nature: First of all, the purpose of mediation is to strengthen the principle of addressing the needs of both parties and the principle of active participation.

At the same time, efforts are made to create the necessary preconditions for mediation to function as an independent sub-system within the judicial or social welfare system, whereby the court would no longer – except when unavoidable cases – have power over the outcome of mediation.

When cases suitable for mediation are selected by certain general criteria and the parties agree to mediation, the mediation outcome produced by the parties and the mediator is the final settlement of the conflict.

This is precisely what the Norwegian Mediation Act (LOM) is about. The Act also clearly defines mediation as a criminal sanction.

The complementary role of mediation becomes evident when a criminal case is taken to court despite mediation and mediation is given a certain function3 in that connection. When mediation is used in this way and its implementation is regulated to some extent, the problem of legal safety can be regarded as being addressed more appropriately.

The institutionalisation of mediation can also be furthered by regulating referral of cases to mediation, training of mediators, qualification requirements, guarantees for clients' legal safety etc.

It can be assumed that institutionalised mediation safeguards the rights of both parties in the best possible way, since such mediation activities can be assessed against the safety provided by courts of justice or against the background of other professional standards (Marshall 1988, p. 36, 38).

However, efforts towards institutionalisation have also been seve rely criticised: freedom and innovation will be lost; mediation will be perverted into a mere adjunct to justice, i.e., a new authority that only serves to further widen the coercive network of society, as stated by the early mediation critics Stanley Cohen (1985) and Sturla Falk (1991, p. 12–16). They maintain that these new alternatives will be harnessed to serve the objectives and ideology of the criminal justice system.

Are these alternative judicial forums thus only new forms of social control that neutralise and ruin opportunities for collective action?

This criticism does not seem to be quite unjustified in view of the developments in Central Europe, where the judicial system has been prone to adapt the different forms of mediation so as to make them contribute to the attainment of various diversion objectives of the formal system. This criticism is to be taken seriously, while at the same time paying attention to the evolution of diversion within the judicial system.

The formal system of criminal justice also wants to shift the processing of cases towards more informal forums and instead of emphasising diversion alone give more weight to addressing the needs and safeguarding the participation rights of both parties. To some extent this European trend is also to be seen in Finland in the form of new practices and experiments such as community service, juvenile punishment experiment and commitment to treatment as an alternative to punishment. As a matter of fact, the 1993 reform of dispute settlement procedures at courts is indicative of the same development.

This Anglo-American evolution, referred to as restorative justice, can in fact be regarded as a new school of criminal policy. It strongly emphasises the participation rights of the parties and solutions with concrete restorative effects in place of sentencing and punishment.

Under the concept of restorative justice, there is an increasingly lively debate going on in many Western countries (but not in Finland) concerning the nature and definition of the alternatives and their position in relation to the conventional system of criminal justice (Pelikan 2001)."

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SSP