Identify 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.
Discuss with examples whether and to what extent these features are adopted in the practice of restorative justice system in Bangladesh.
Restorative justice is a new movement in the folks of victimology and criminology. Acknowledging that crime causes injury to people and communities, it insists that justice repair those injuries and that parties are in that process to participate. Restorative justice programs, therefore, enable the victim, the offender and affected members of the community. They are central to the criminal justice process, with governmental and legal professionals serving as facilitators of a system that aims at offender accountability, reparation to the victim and full participation by the victim, offender and community.
The restorative process of involving all parties- often in face-to-face meetings- is a powerful way of addressing not only the material and physical injuries caused by crime, but also the social, psychological and relational injuries.
When a party is not able, or does not want to participate in such a meeting, other approaches can be taken to repair the restorative outcome of repairing the damage. In addressing offender accountability these approaches include restitution, community service and other reparative sentences. In addressing victim and offender reintegration they can include material, emotional and spiritual support and assistance.
Though Bangladesh has enacted various procedural and penal laws for administration of criminal justice system but due to lake of resources, delay, bribery, corruption, unfairness, dishonesty, abuse of power and using traditional system keeps us yet to reach to top stage of success. More than one lac cases are pending in both the lower and higher judiciary which creates huge backlog. Litigants are yet to suffer a lot to get proper treatment and adequate protection of law. In such a situation, being an alternative practice of restorative justice has great importance to reduce crime by bringing more offences to justice in our society.
Now I try to discuss with some examples whether and to what extent these features are adopted in the practice of restorative justice system in Bangladesh.
For Family Crisis:
When in a family arises any problem between husband and wife then this mediation process has been done by the guardian level people.
Land Dispute:
In Bangladesh the land dispute is a severe problem in that cases sometimes the Union Parishad Chairman act as a mediator to solve the problem.
Dowry System:
Sometimes we observe that there are several problems occurred in the community related with the dowry demand by the husband or husband’s family member which is also create divorce in husband-wife relations, in that cases this system act a big role in the society.
Child Marriage:
Child marriage or early marriage is another curse for the Bangladesh in that cases the mediation works as a social medicine in the community as well as in the society.
Local Government Activities:
According to the Union Parishad Act, 2009 there exist a ward sava which is a such type of organ that have power to solve the following problem of the society, like as
- Dowry problem;
- Child Marriage;
- Acid Violence;
- Drug Addiction;
- Others social problem.
These are done by mediation according to the said act.
Village Court:
One kind of RJ in the form of village courts has long been prevalent in Bangladesh. The country has a long history of informal dispute resolution mechanisms with a varying degree of procedures- the traditional shalish, NGO reformed shalish and the village are prime among them.
Accordingly, the Bengal Village Self-Government Act, 1919 (Bengal Act V of 1919) was passed. This was the first law to empower a local government body to adjudicate criminal cases. The Act established a union bench, corresponding to the present day village court, along with concurrent jurisdiction with formal criminal courts to try petty criminal cases.
Later on in 1961, the Conciliation Courts Ordinance was promulgated, which empowered the union council (local government) to deal with minor cognizable offences. This ordinance was repealed by the promulgation of the village Courts Ordinance, 1976.
This Act and the Village Courts Rules, 1976 regulate the formation, jurisdiction and functioning of the village courts, which is an adhoc forum for adjudicating minor disputes or conflicts in rural areas. In case of any dispute triable under this Ordinance, any of the disputant parties can apply to the Chairman of the Union Parishad (UP) for remedy through a village court.
At present according to the Village Court Act, 2006 whatever in civil and criminal code this court have jurisdiction to solve the following problem, like as
- Compensation for agriculture worker;
- Compensation for unauthorized entering of cattle;
- Movable property related compensation
- Restoration Immovable property;
- Other social dispute.
Grievance Redressing in Export Processing Zone (EPZ):
There are eight EPZs in Bangladesh under the Bangladesh Export Processing Zones Authority. In these eight EPZs there are more than 5 lac workers. If there exist any dispute or problem then the trained Social Counselor takes necessary steps for solving the related problem through counseling and mediation. If the counselor fail to resolve the problem then it goes to the Conciliator and the concern Councilor solve it accordingly. There are 90 Counselor and 3 Conciliator are working in eight EPZs[6].
Reference
Agardy, Peter (2009), ‘Mediation and the insolvency practitioner,’ Insolvency Law Journal, Thomson Reuters, Vol 17. No.3, September, Pages 135-146.
Alés Siolis Javier “The Magic Mediation ” (in Spanish) Edit Aconcagua Seville 2010
Boulle, Laurence (2005) [1996]. Mediation: Principles, Processes, Practice (2nd ed.). Chatswood, N.S.W.: LexisNexis Butterworths. ISBN 0409319457. OCLC 62189591. Third edition published in 2011.
http://restorativejustice.org/restorative-justice/about-restorative-justice/tutorial-intro-to-restorati ve-justice/lesson-3-programs/victim-offender-mediation/#sthash.Tvsjjm0y.dpbs, access on 17.3.2019 at 1.57 PM
The Bengal Village Self-Government Act, 1919 (Bengal Act V of 1919)
The Village Courts Ordinance, 1976
The Union Parishad Act, 2009.
The Village Court Act, 2006.
[1] https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=14&cad=rja&uact=8&ved=2ahUKEwiy5q P O-5ThAhUJWX0KHcPlAOgQFjANegQICRAC&url=https%3A%2F%2Fmoj.gov.jm%2Fsites%2Fdefault%2Ffiles%2Frj% 2FMediation_versus_Restorative_Practice.pdf&usg=AOvVaw24fk4mzkZYzMxFRj7fmFXY,Access on 21.3.19 at 2 PM
[2] https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=13&cad=rja&uact=8&ved=2ahUKEwiy5q O-5ThAhUJWX0KHcPlAOgQFjAMegQICBAC&url=http%3A%2F%2Fijbel.com%2Fwp-content%2Fuploads%2F2015%2 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 Mediate.com in 1996 and has served as CEO of Mediate.com ever since. Mediate.com received the American Bar Association’s 2010 Institutional Problem Solver Award.
[4] Paul Holder (co-coordinator of the B&NES Restorative Justice service)
[5] https://www.tpsgc-pwgsc.gc.ca/biens-property/sngp-npms/bi-rp/conn-know/reclam-claims/definition-eng.html, access on 17.3.2019 at 1.50 PM
[6] Annual Report (2017-18) of Bangladesh Export Processing Zones Authority (BEPZA).
