Collaborative Justice and the Changing World of Mediation

Thanks greatly to the internet, the world of mediation is truly a global society of professionals.  In America, we are seeing Conflict Resolution (a.k.a. Alternative Dispute Resolution or ADR) practices in play now that typically have only been used in the United Kingdom, Eastern Europe, and parts of Africa.  Specifically, we are now seeing more Collaborative Law with the Family Courts and Expert Determination in American reality television shows such as “Restaurant Impossible,” “Restaurant Stakeout,” et. al.  On the other end of the scale, in what people are calling Conflict Transformation, the field of Restorative Justice (RJ) is being introduced to millions of Americans using scientific research based out of Australia, New Zealand, South Africa, Canada, and the UK.  By the same token, American practices and ideas on mediation and ADR are now permeating into other countries.  In the States, as well as other parts of the world, the two paradigms of understanding between Conflict Resolution and Conflict Transformation are now merging and becoming almost indistinguishable.  New practices such as Transformative Mediation, Community Mediation, Victim-Offender Mediation (VOMA), Juvenile Panels, and others are ever-blurring the two worlds as they seek to best handle issues of catabolic conflict.

As a result, pioneers in these merging fields have grappled with names, titles, and paradigms of thought as they try to marry best the two worlds.  Lately, the concept of Collaborative Justices has taken over as an appropriate compromise.  Unlike Collaborative Law, which uses lawyers (barristers) to negotiate deals on behalf of clients using ADR methodologies, Collaborative Justice marries and pairs both paradigms of understanding into a singular practices that ultimately empowers the people and the community.  One of the leaders in this verging field is David Liddle, founder of the UK-based Collaborative Justice Institute.  Thanks to David, professionals trained in both ADR and RJ now have a practice field to hang their hats on and claim as a unified professional standard.

So, what does this mean for mediators in Ireland and the UK?  Ultimately, Collaborative Justice gives practitioners in both ADR and RJ options that they would not otherwise have in handling issues of catabolic conflict while also bolstering the benefits of anabolic conflict.

For instance, since so much of mediation works with Commercial Mediation, which sometimes also means handling issues of disputes between workers or even divisions in companies, the need for alternatives abounds while options have been limited by the paradigms of the practice.  Traditionally, both sides would talk directly to each other and the mediator would then interject with either directing questions, suggesting the use of writing lists out concerning wants and needs, caucuses, or other techniques to get past the issues of impasse and resolve the catabolic conflict.  With Collaborative Justice, the same may be done but now the business is seen as a “community of care” where the higher corporate officers, co-workers, family  and friends of the parties, clergy, and even people from other divisions may all be called together in a circle or conference setting so as to get a more holistic picture of the goings on involving not only the trappings of the catabolic conflict but also its roots and even potential outcroppings.  In some cases, a Collaborative Justice professional might even suggest that Expert Determination be used where basic industry or business acumen may be lacking and proving to be a contributory source to part, if not all, of the catabolic conflict.

In regards to Community Mediation, the world is truly opening up thanks to Collaborative Justice.  Using an RJ-based “community of care” now allows Community Mediators in nomadic urban environments, or those dealing with sophisticated and abstract issues, to form a community that is no longer based solely on race, history, geography, or other trappings generally used to define what makes up a community.  This is extremely helpful in dealing with issues like the newly developing concept of “grassroots diplomacy” coming out of the UK.  Now, government officials can be in negotiations with seemingly disparate groups of people who otherwise have nothing in common other than the cause being addressed.  This allows the Community Mediator to move into new frontiers such as Commercial Mediation, Religious Institution Conflict Resolution, Criminal Diversionary Programs, and others.  Verily, the new lynchpin in future Collaborative Justice innovations will most likely involve greatly expanding and redefining the scope and fields of Community Mediation practices.

Lest we not forget, there is also the field of crime that most mediators have tried to stay clear from in the past.  In America, we annually incarcerate 10 million adults and arrest over 2 million juveniles.  While the UK’s criminal system is less appalling, the fact of the matter is that crime is still a part of life no matter which side of the pond one is on.  The UK, Australia, New Zealand, South Africa, Canada, and other parts of the world have been proactive by using RJ practices in schools and courts to keep first time offenders out of detention facilities and hopefully far away from recidivating.  Thanks to Australian criminologist, Jonathan Braithwaite, we now have the theory of Reintegrative Shaming that employs non-stigmatic shaming as a way to induce wrongdoers to atone for their actions and seek reassimilation back into the community without any social stigma being attached for their former offenses.  Others, such as Howard Zehr, the “Grandfather of the American RJ movement,” have revolutionized this field using VOMA techniques.  These methodologies allow the victims to gain back their voices lost by the traditional retributive justice practices where the state acts as a surrogate victim. 

Thanks to such leaders, this has allowed others to expand the field with other theories such as my own Shalom-Centric Holistic Intersocial Forgiveness Transformation (SHIFT) Theory (see the 20 March 2013 issue of the Christian Post for more information).  These theories and more now open the world up past juvenile arbitration and traditional diversionary programs to practices that help handle issues of catabolic conflict at various levels regardless of age.  

In particular, whilst most programs of this type have been found to be more cost-effective and beneficial to juveniles, prison RJ programs and VOMA has been used with great success using a community of care approach.  In the Minnesota and other states and provinces near the American/Canadian Boarder tribes are using a hybrid type of community mediation and RJ to handle Family Law cases. 

In schools, daily classroom Circles can be paired with Peer Mediation, Juvenile Panels, Justice Circles, etc. in order to set up a system where the wrong-doings of children are effectively handled on the school grounds without need to senselessly escalate matters up to the courts.  This effectively castrates what American academics are now calling the School-to-Prison Pipeline (a.k.a. referred to in a modified form as the Test-to-Prison Pipeline where school funding is based primarily on standardized test performance).  In regards to the lifecycle of crime, it is believed that by lowering juvenile crime rates, and recidivism, communities can anticipate lowered future rates of crime throughout the lifespan of the delinquent juveniles.  When recidivism does happen to take place, the severity and brutality of the crime is predictably diminished as well by a significant amount. 

A tremendous tool that is appearing on the horizon is the use of Circle Justice sessions.  First made popular in mainstream American educational systems by Ben Mikaelsen’s book, Touching Spirit Bear, this technique is primarily used by Native Americans and First Nations peoples along the American/Canadian border regions.  It effectively gives justice empowerment to the communities using a technique that marries Arbitration Panels with Community Mediation while also employing the use of Reintegrative Shaming, SHIFT, and other theories as critical components in inducing both offender atonement as well as overall victim and community healing.

Verily, the world of mediation is changing as technologies make the world a smaller and smaller place to live.  This diversity of backgrounds, needs, and knowledge will naturally change the practice of mediation.  However, other practices, some of which have not always been considered a part of Conflict Resolution, are also making their way through into the world of mediation.  While some may resist out of homage to history and tradition, the truth of the matter is that the next generation of mediators will have even more techniques and opportunities at their disposal as our profession becomes more efficient as well as more adaptive to the needs of a diverse peoples.

                       

Ken Johnson

Ken Johnson is a Collaborative Justice writer, lecturer and practitioner with former teaching experience (public and post-secondary), 15 years experience in the criminal justice system, certification from the Florida Supreme Court as a County Court Mediator and training in Restorative Justice from the College of Professional Studies at the University of… MORE >