Rule of Law vs. Rule of Mediation

EDITORIAL, 4 July 2011

#171 | Johan Galtung, 4 Jul 2011 - TRANSCEND Media Service

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 July 2011.

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6 Responses to “Rule of Law vs. Rule of Mediation”

  1. Dear Johan,

    Thank you for your Editorial.

    Writing about mediation, you say “This is great! A culture of mediation is a key part of a culture of conflict transformation–transforming conflicts” However, in observing the history of the world and particularly, in the last few centuries, since the creation of Journalism, the culture of conflict, of violence “creation” through dialogue also exists.

    To give just one example, when USA wanted to invade Iraq, the dialogue between the American Ambassador in Baghdad and the Iraqi Government and military authorities had one purpose: make the invasion a reality. The USA Ambassador would have lost his job or outright assassinated, had he attempted to go against the will of the Government he represented. Of course, to the world he had to pretend he was negotiating Peace.

    The last thing politicians want is “conflicts that are “manageable without violence” Why do countries have Armed Forces and spend so much on them????

    UNESCO, being part of the UN, are as hypocritical as everybody else in that war-producing organisation. Like everything in Diplomacy, they have to “call for a culture of Peace.

    Yes, there are individuals, in every UN High Commission, who would like to see a world at Peace. However, those who reach the top and are decision-makers, have no option, but to accept violence and war.

    When Costa Rica disbanded its Armed Forces, violent conflicts erupted in several countries in the area, because Costa Rica did not destroy their military toys; they simply sold them to other Governments.

    All weapon manufacturers are now working at new, improved versions of the products. What for??? they have no option but to inspire wars (the longer and more expensive, the better)

    We must de-militarise the World !!!!!!

  2. I agree with Mr. galtung.

  3. satoshi says:

    Dear Prof. Galtung,

    You say,”My point is that any crime, breaking the law, is some kind of violence, and underlying violence is always an unresolved conflict.” You also say,”I am all in favor of a rule of law.”

    How about the case of conscientious objection? Or what if the execution officer of a prison refuses to execute nonviolence political criminal such as a person like Gandhi? Will you, if you are the execution officer of the prison, execute such a person if he was pronounced the death penalty, for instance? From the British point of view, Gandhi’s nonviolence movement was “illegal.” Or what if the law promotes racial discrimination, ethnic cleansing and/or other serious human rights violations as in the case of Nazi or of some countries in the Balkans during the 1990s? How about Mandela’s resistance against Apartheid? His movement was also “illegal” from the view point of the government of South Africa at that time. Independent movements from any oppressive regime are “illegal” from the view point of the government. In this regard, how about Libya’s rebels against Gaddafi’s regime? How about the case in Syria? Or how about the resistance of Palestinians against Israel if the resistance is carried out in nonviolence?

    Having said that, I also have to say the similar (not exactly the same though) as you said: “But do not misunderstand me. I am “,in principle,” (or “almost”) all in favor of a rule of law.”

    Prof. Galtung, what you raised in your editorial this week is a classical (and yet still new) agenda of law, although I understand that the main subject of the editorial this week is about mediation, not the discussion of the classical legal agenda.

    • Prof. Galtung answers:

      Dear Satoshi – thanks, but you are confirming my point, this is exactly what I say. A crime is some kind of violence against something, even Gandhi’s, Mandela’s–or for that sake mine–against some “order”. What I am saying is that violence is a signal, there is an unresolved conflict somewhere. You want to reduce crime? Fine, go ahead, identify those conflicts, try to solve them. My point was that this also applies to “ordinary”, meaning not political criminals: they were talking much about theft as redistribution from those who had too much. This is certainly not a conventional view of law–nor am I saying that this approach always works, it is a perspective.
      best regards and thanks johan galtung

  4. satoshi says:

    Please allow me to add two more.

    First, about the title of the essay this week:

    I do not think “rule of law” and “mediation” contradict each other. Therefore, the title of the essay this week, “Rule of Law vs. Rule of Mediation,” might not be appropriate. Norms such as legal norms present a certain set of the social (state) framework, while mediation is a means for solving a conflict. Furthermore, it is not necessarily that legal norms deny mediation as a means for solving a legal conflict. The framework and a means for conflict resolution does not necessarily contradict each other.

    Besides, it is very often that the law itself encourages conflict resolution by mediation. This is true, especially when the conflict in question relates to a civil or commercial affair. Not all civil or commercial conflicts are appropriate to be solved at the legal court.

    That is also true, especially when the conflict in question is an inter-state, inter-national or inter-ethnic affair. One of the examples is the UN Charter (which is an international (inter-state) treaty that constitutes an essential part of international law) that assumes not only the legal solution but also mediation in solving international conflict.

    Second, about mediation as a more appropriate means for solving conflict than a legal solution through the legal battle (as Prof. Galtung argues in the essay):

    The solution of a conflict does not necessarily require to produce a set of a winner and a loser, which unfortunately the legal solution produces. The loser in the legal solution may not be very happy for the way the conflict has been solved because his, her or their personal, communal or national pride could be damaged as the result of the “legal battle.” (The government of a lost inter-state legal battle may be collapsed, for instance.)

    The solution of a conflict requires satisfaction (or satisfactory conditions) for both (or all relevant) parties. Thus, it can be said, in general, that mediation may be more appropriate in conflict resolution than the legal battle through the court session.

    Needless to say, however, there might be some cases that are more appropriate to be solved by the legal court.

    In principle, let the conflicting parties choose the means for solving their problems as far as the means is a nonviolent/peaceful and legitimate one. (To avoid the failure in choosing the conflict resolution means by the conflicting parties, the law should stipulate what to do in such a case.)