Rule of Law vs. Rule of Mediation
EDITORIAL, 4 Jul 2011
From Santo Domingo, Republica Dominicana
President of the Supreme Court, Excellencies, Ladies and Gentlemen:
A fresh wind of a culture of mediation is blowing all over Latin America, more than in any other continent. All over there are huge conferences, workshops and training in family mediation, between neighbors, communal mediation, in work relations; less so at the inter-nation and inter-state levels. Judicial mediation is on everybody’s lips. This is great! A culture of mediation is a key part of a culture of conflict transformation–transforming conflicts so that they become manageable without violence–in turn a key part of the general culture of peace called for by UNESCO. Why so important?
There are negative and positive answers.
The negative answer is to avoid violence, today especially the shocking amount of violence between genders, in the family, at school. Another answer is the money and time cost of courts producing hills of judiciously accumulated facts, testimonies, where a mediation may boil down to a creative dialogue and a one page signed agreement.
But there is another, deeper argument. In a court process at any level of human conflict–micro between persons, macro between groups in the society like employers and employees, macro between states and nations and mega between regions and civilizations–there is in the end a winner and a loser. In a criminal case the loser is “guilty”, and in a civil case “liable”. The non-guilty, non-liable can emerge from a court with a sign around the neck: “I won, you not”. Not a good start for new relations in the family, between neighbors, etc.
But then there is the positive answer, very often lost sight of. Court processes essentially serve to re-establish status quo by punishing or restoring the guilty. Having served half a year in prison, in Norway–refusing the alternative service for conscientious objectors to military service, arguing in favor of peace service–I can only say that I did not become more law obedient, nor did others inspired by that “crime”. I was doing time for a “cause”, but found to my surprise that so felt many others in the prison, for “economic redistribution”. Well, well–who was rationalizing more, them or me?
My point is that any crime, breaking the law, is some kind of violence, and underlying violence is always an unresolved conflict. The right of young people to serve the security of their country by helping reducing misery, by improving relations among countries; the right of anybody to live in a more just society where at least the basic needs of everybody are met. Of course, we have politics to deal with this, in general terms. But mediation might also identify a new social reality that brings society forward, also inspiring politics. Like a bully at school, hurting and harming others, may have some points worth listening to beyond guilty or not. Courts rarely do.
But do not misunderstand me. I am all in favor of a rule of law. Laws are the traffic rules of society. Once in Beirut with lights gone, and police on strike, traffic came to a halt. The only rule was the rule of the strongest, of heavy trucks and buses. Laws–mutual rights and obligations–are indispensable, but good laws add “and equal”, to avoid a status quo favoring the privileged. And this is where crimes may tell us something about where the shoes are pinching.
Let us mediate between courts and mediation as ways of handling conflict, also with the state. Two parties mean five outcomes: only courts, only mediation, neither-nor, compromise, both-and.
In face-to-face relations perhaps mediation only, and in large complex relations and grave crimes courts only? No, we always need enlightened dialogues with all parties–not only two, related by “vs.”.
A bias in favor of mediation? Yes, because they can articulate what goes on inside them, not only confirm or deny some act committed. There is more respect for us fragile human beings than in courts; more like democracy, less like autocracy. The rule of law bestows that gift on humanity, pro et contra dicere, for and against the defendant. But to win that verbal battle does not solve underlying conflicts.
Neither-nor: what is that? Cooperative relations, for mutual and equal benefit, no important incompatibility–conflict–that spells danger. In short, normal human life. A structure of peace.
Compromise, what would that be? Mediation for light cases, court processes for grave crimes and complicated cases? Maybe. Another formula might be mediation for people close to each other, court processes for people at a comfortable distance. Not very creative.
Both-and, doing both? In Hawai’i there is the ancient polynesian conciliation-mediation-restoration process ho’o pono pono, set right, very powerful. A successful ho’o pono pono can reduce the sentence of a court. And a creative judge can interpret facts, laws, and also punishment, and sentence the defendant to spending time in prison on conciliation, mediation, and preparation for new social relations.
Mediation should always be tried to bring out more aspects of the complexity of human relations, with information flowing both ways. This implies mediation courses for judges, and courses in law for mediators, with the two approaches cooperating for smoother social relations, for conflict transformation, and new social realities.
Mr. President, ladies, gentlemen: this is my second visit to Republica Dominicana. The first was in April-May 1965, during the war–no causal relation! I was a UNESCO professor interviewing candidates for stipends, and talked with constitutionalists in the inner city with tall US marines, huge, down the street. Your country was occupied in 1965-66 by the USA, first time 1916-24. Thousands were killed. With great relief I read in El Nacional for yesterday, 26 Jun 11, that homage is being paid to the “martyrs” of 1965. Maybe it worked in their direction in today’s RD, with blacks and women all over. But mediation would have been better.
This article originally appeared on Transcend Media Service (TMS) on 4 Jul 2011.
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