{"id":13286,"date":"2011-07-04T12:00:52","date_gmt":"2011-07-04T11:00:52","guid":{"rendered":"http:\/\/www.transcend.org\/tms\/?p=13286"},"modified":"2011-07-04T11:31:03","modified_gmt":"2011-07-04T10:31:03","slug":"rule-of-law-vs-rule-of-mediation","status":"publish","type":"post","link":"https:\/\/www.transcend.org\/tms\/2011\/07\/rule-of-law-vs-rule-of-mediation\/","title":{"rendered":"Rule of Law vs. Rule of Mediation"},"content":{"rendered":"

From Santo Domingo, Republica Dominicana<\/em><\/p>\n

President of the Supreme Court, Excellencies, Ladies and Gentlemen:<\/p>\n

A fresh wind of a culture of mediation is blowing all over Latin America, more than in any other continent.\u00a0 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.\u00a0 Judicial mediation<\/em> is on everybody’s lips.\u00a0 This is great!\u00a0 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.\u00a0 Why so important?<\/p>\n

There are negative and positive answers.<\/p>\n

The negative answer is to avoid violence, today especially the shocking amount of violence between genders, in the family, at school.\u00a0 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.<\/p>\n

But there is another, deeper argument.\u00a0 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.\u00a0 In a criminal case the loser is “guilty”, and in a civil case “liable”.\u00a0 The non-guilty, non-liable can emerge from a court with a sign around the neck: “I won, you not”.\u00a0 Not a good start for new relations in the family, between neighbors, etc.<\/p>\n

But then there is the positive answer, very often lost sight of.\u00a0 Court processes essentially serve to re-establish status quo by punishing or restoring the guilty.\u00a0 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”.\u00a0 I was doing time for a “cause”, but found to my surprise that so felt many others in the prison, for “economic redistribution”.\u00a0 Well, well–who was rationalizing more, them or me?<\/p>\n

My point is that any crime, breaking the law, is some kind of violence, and underlying violence is always an unresolved conflict.\u00a0 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.\u00a0 Of course, we have politics to deal with this, in general terms.\u00a0 But mediation might also identify a new social reality<\/em> that brings society forward, also inspiring politics.\u00a0 Like a bully at school, hurting and harming others, may have some points worth listening to beyond guilty or not.\u00a0 Courts rarely do.<\/p>\n

But do not misunderstand me.\u00a0 I am all in favor of a rule of law<\/em>.\u00a0 Laws are the traffic rules of society.\u00a0 Once in Beirut with lights gone, and police on strike, traffic came to a halt.\u00a0 The only rule was the rule of the strongest, of heavy trucks and buses.\u00a0 Laws–mutual rights and obligations–are indispensable, but good laws add “and equal”, to avoid a status quo favoring the privileged.\u00a0 And this is where crimes may tell us something about where the shoes are pinching.<\/p>\n

Let us mediate between courts and mediation as ways of handling conflict, also with the state.\u00a0 Two parties mean five outcomes: only courts, only mediation, neither-nor, compromise, both-and.<\/p>\n

In face-to-face relations perhaps mediation only, and in large complex relations and grave crimes courts only?\u00a0 No, we always need enlightened dialogues with all parties–not only two, related by “vs.”.<\/p>\n

A bias in favor of mediation?\u00a0 Yes, because they can articulate what goes on inside them, not only confirm or deny some act committed.\u00a0 There is more respect for us fragile human beings than in courts; more like democracy, less like autocracy.\u00a0 The rule of law bestows that gift on humanity, pro et contra dicere<\/em>, for and against the defendant.\u00a0 But to win that verbal battle does not solve underlying conflicts.<\/p>\n

Neither-nor<\/em>: what is that?\u00a0 Cooperative relations, for mutual and equal benefit, no important incompatibility–conflict–that spells danger.\u00a0 In short, normal human life.\u00a0 A structure of peace.<\/p>\n

Compromise<\/em>, what would that be?\u00a0 Mediation for light cases, court processes for grave crimes and complicated cases?\u00a0 Maybe.\u00a0 Another formula might be mediation for people close to each other, court processes for people at a comfortable distance.\u00a0 Not very creative.<\/p>\n

Both-and<\/em>, doing both?\u00a0 In Hawai’i there is the ancient polynesian conciliation-mediation-restoration process ho’o pono pono<\/em>, set right, very powerful.\u00a0 A successful ho’o pono pono<\/em> can reduce the sentence of a court.\u00a0 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.<\/p>\n

Mediation should always be tried to bring out more aspects of the complexity of human relations, with information flowing both ways.\u00a0 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.<\/p>\n

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.\u00a0 Your country was occupied in 1965-66 by the USA, first time 1916-24.\u00a0 Thousands were killed.\u00a0 With great relief I read in El Nacional<\/em> for yesterday, 26 Jun 11, that homage is being paid to the “martyrs” of 1965.\u00a0 Maybe it worked in their direction in today’s RD, with blacks and women all over. But mediation would have been better.<\/p>\n","protected":false},"excerpt":{"rendered":"

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?<\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[31],"tags":[],"class_list":["post-13286","post","type-post","status-publish","format-standard","hentry","category-editorial"],"_links":{"self":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/13286","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/comments?post=13286"}],"version-history":[{"count":0,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/13286\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/media?parent=13286"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/categories?post=13286"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/tags?post=13286"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}