Identification the important features of mediation as a model of restorative justice based on some existing definitions.

Identification the important features of mediation as a model of restorative justice based on some existing definitions.

Restorative Justice (RJ) is a process which “brings those harmed by crime or conflict, and those responsible for the harm, into communication, enabling everyone affected by a particular incident to play a part in repairing the harm and finding a positive way forward”.

The process is completely voluntary for both parties. It can empower victims by letting them have their say and helping them to move on with their lives and it can help offenders to recognize the impact of what they have done and make amends.

It is about helping people to communicate following a crime. It provides victims with a chance to explain the impact of the offence and ask questions and it helps offenders to explain their actions and offer an apology.

Involvement in Restorative Justice is voluntary and confidential.

Mediation is a way of resolving disputes which assists the people involved to reach an agreement with the help of an impartial mediator. The parties rather than the mediator, decide the terms of the settlement (Scottish Mediation Network)[1].

Mediation helps those experiencing conflict to communicate and find a way forward to address the individual needs of all parties.

It is suitable for community and family conflict, where there is victimisation or a significant risk of victimisation (a crime does not have to had occurred).

Involvement in mediation is voluntary and confidential.

Mediation As An Alternative Penal Restorative Justice

Mediation is a form of alternative dispute resolution outside the court (commonly known as Alternative Dispute Resolution or ADR, there is gathering the call appropriate Dispute Resolution). ADR is generally used in the civil cases, not criminal cases. Under the laws in force in Indonesia today (positive law) is in principle a criminal case cannot be settled out of court.

Although in general the settlement of disputes out of court only in civil disputes, but in practice often be solved criminal cases out of court through the discretion of law enforcement agencies or through consultation mechanisms/peace or remission of existing institutions in society (family council meetings and consultation, deliberation customs). The existence of the penal mediation as an alternative for settling disputes in the field of criminal law through restitution in criminal proceedings shows that the difference between criminal and civil law, and the difference is not so big it does not function[2].

According to Jim Melamed[3]:

Mediation may be thought of as “assisted negotiation.” Negotiation may be thought of as “communications for agreement.” Hence, mediation is “assisted communications for agreement.”

Central to mediation is the concept of “informed consent.” So long as participants understand the nature of a contemplated mediation process and effectively consent to participate in the described process, virtually any mediation process is possible and appropriate.

Key Qualities of the Mediation Process

Voluntary – You can leave at any time for any reason, or no reason.

Collaborative – As no participant in mediation can impose anything on anyone, everyone is motivated to work together to solve the issues and reach best agreements.

Controlled – Each participant has complete decision-making power and a veto over each and every provision of any mediated agreement. Nothing can be imposed on you.

Confidential – Mediation is generally confidential, as you desire and agree, be that by statute, contract, and rules of evidence and/or privilege. Mediation discussions and all materials developed for mediation are generally not admissible in any subsequent court or other contested proceeding, except for a finalized and signed mediated agreement. Your mediator is obligated to describe the extent of mediation confidentiality and exceptions to that confidentiality. The extent of confidentiality for any “caucus meetings” (meetings between the mediator and individual parties) should also be defined.

Informed – The mediation process offers a full opportunity to obtain and incorporate legal and other expert information and advice. Individual or mutually acceptable experts can be retained. Expert advice is never determinative in mediation. The participants always retain decision-making power. Mediators are bound to encourage parties to obtain legal counsel and to advise them to have any mediated agreement involving legal issues reviewed by independent legal counsel prior to signing. Whether legal advice is sought is, ultimately, a decision of each mediation participant.

Impartial, Neutral, Balanced and Safe – The mediator has an equal and balanced responsibility to assist each mediating party and cannot favor the interests of any one party over another, nor should the mediator favor a particular result in the mediation. Your mediator is ethically obligated to acknowledge any substantive bias on issues in discussion. The mediator’s role is to ensure that parties reach agreements in a voluntarily and informed manner, and not as a result of coercion or intimidation.

Self-Responsible and Satisfying – Based upon having actively participated in voluntarily resolving issues, participant satisfaction and the likelihood of compliance are found to be elevated through mediation compared to court options.

Mediation is defined in Black’s Law Dictionary as “a private, informal dispute resolution process in which a neutral third party, the mediator, helps disputing parties to reach an agreement.” In a voluntary effort, the mediator facilitates communication between parties and encourages settlement.

Mediation is a facilitated dialogue, mostly used where people are in conflict. Its strength lies in the parties co-operating in joint problem solving to find a way forward which addresses the needs and concerns of both parties[4].

Features of Mediation[5]

  • involves two or more parties in dispute over one or more contract issue(s)
  • entirely voluntary for non-litigious disputes
  • non-coercive, in that the mediator does not decide for the parties, but rather encourages them to agree to a settlement
  • ‘assisted negotiation’, the third party neutral (mediator) remains impartial
  • mediator may provide relationship-building or procedural assistance and options which had not been previously contemplated by the parties
  • mediator encourages parties to explore alternate possibilities/options in settling the dispute
  • more informal and relaxed than that of a court or an arbitration
  • rules are those which are agreed to between the parties
  • confidentiality is an important ingredient of mediation
  • all communications are without prejudice and cannot be used as evidence in subsequent arbitration or court action (those normally available through Access to Information and Privacy (ATIP) remain available)
  • each of the disputing parties control the disclosure of information to the mediator and what information can be disclosed to the other parties

Restorative justice is a way of dealing with disputes and conflicts. A process is said to be restorative when three events occur. First, the parties are able to acknowledge that a dispute exists and are able to share how they experienced the dispute with each other. Second, the parties are able to talk about how to make things as right as possible between themselves. Third, the parties talk about the future to prevent the dispute from occurring again and to rebuild trust.

Restorative mediation injects restorative justice principles into the mediation process. In restorative mediation, the mediator will help the parties acknowledge injustices and wrongs, work to make things right for all sides, and focus on a future without a reoccurrence of the dispute. Rebuilding trust is a paramount objective. Restorative mediation goes beyond just settling a case or resolving a dispute. A successful restorative mediation will reconcile the interests of the parties and will reconcile any underlying injustices.

Restorative mediation can be applied in virtually any dispute that is amenable to mediation. It is a powerful process for restoring relationships and building strong, safe communities.

[1] P O-5ThAhUJWX0KHcPlAOgQFjANegQICRAC& 2FMediation_versus_Restorative_Practice.pdf&usg=AOvVaw24fk4mzkZYzMxFRj7fmFXY,Access on 21.3.19 at 2 PM

[2] O-5ThAhUJWX0KHcPlAOgQFjAMegQICBAC& F05%2FLaw2_PAID_IJBEL_FULL-PAPER-KLIBEL-6-PENAL-MEDIATION-FOR JOURNAL_D2.pdf&usg=AOvVaw0dgXzCi7 eyzVMzahw0JJWf, Access on 21.3.2019 at 3.00 PM

[3] Jim Melamed co-founded in 1996 and has served as CEO of ever since. received the American Bar Association’s 2010 Institutional Problem Solver Award.

[4] Paul Holder (co-coordinator of the B&NES Restorative Justice service)

[5], access on 17.3.2019 at 1.50 PM