This article has been written by Debatree Banerjee which deals with mediation in Scandinavian countries. The article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders)
Table of Contents
Introduction
Mediation is one of the basic dispute resolution systems. It is a voluntary, binding process where an impartial mediator facilitates the parties in dispute to resolve and reach a solution by creating a conducive environment. In Nordic countries, mediation is very broadly defined and does not have different words for mediation and conciliation. There are several definitions and a wide range of views on mediation. Often distinctions are made between theoretical models of mediation and mediation in practice to use it as an analytical tool in empirical studies. The distinction between theoretical models of mediation, practical systems of mediation, and mediation in action also provides an analytical method to view and study the system. All these categories are interactive with one another and have an influence over each other.
There are numerous theoretical models of mediation. In Scandinavian countries, there are many discussions on such models and their taxonomy (Ervasti and Nylund 2014), Vindeløvs “reflexive mediation” (Vindeløv 2012), the creativity of mediation agreements (Adrian and Mykland 2014), mediation in the light of understanding of identity (Asmussen 2018) and meaning of restorative approach in mediation (Rasmussen 2018). For practical systems of mediation, Nordic countries have community mediation for school, neighborhood and community, multicultural mediation, mediation for the workplace and commercial matters, and international peace mediation. There are no institutionalized mediation systems for the field of administrative law yet. The third category is mediation in action. In Nordic countries, there are thousands of mediators working as professionals or as laymen, trained in different theoretical and practical systems. Along with them, the mediators also have different personalities and behaviour which also have some influence over the mediation process and its result.
Theoretical models of mediation
In discussions on theoretical models of mediation in civil cases, the division of the mediation system into facilitative and evaluative models have been analysed since its division. Transformative mediation is considered the third primary model for mediation in civil cases. Among these, the facilitative method of mediation is the most common model used for civil cases in Scandinavian countries. It is considered the purest form of mediation where the mediator helps the disputed parties to find their solution. The old indigenous mediation methods of the countries along with the theoretical methods are generally used for the purpose of dispute resolution and mediation in Nordic states. However, in recent years, the mediation theories of the United States have also greatly influenced the mediation processes in these countries. In Scandinavian states, the research on conflict resolution is strongly linked with socio-legal studies. And in Norway, there are many prominent researchers in this area. In the 1970s, Norwegian professor Wilhelm Aubert developed the conflict theory in Nordic countries, where he distinguished two types of conflict and conflict resolution: competition and dissensus.
Torstein Eckhoff also contributed immensely to the Nordic conflict resolution research. He analysed the role of judges, mediators and administrators in resolution processes; and also discusses the key concepts of mediation such as conflict, dispute, solution, outcome, opinions and interests. Johan Galtung is known as the principal founder of the discipline of peace and conflict studies. Norwegian professor, Nils Christie had a remarkable influence in building the victim-offender mediation (VOM) system in Nordic countries. Unlike other countries where mediators are generally professionals, the mediators in VOM are laymen. He also had a great influence on other mediation systems in the Nordic countries. The idea of Christie was that the people should handle their own problems and conflicts as a community so that they can grow as humans. Currently, the common theoretical approach in VOM in Scandinavian states is restorative justice. For civil cases in Nordic countries, the common model of mediation is the combination of the facilitative method with an interest-based approach. Denmark has generated “reflexive mediation”, which lies in the values of understanding of conscious mediation practice.
Practical mediation systems
In Nordic countries, there are many practical mediation systems, and also there are some differences and also similarities between those practices in different countries.
Communal mediation systems
Since the 1980s, many new mediation systems have been introduced in the Scandinavian states. However, there has not been many private mediation systems out of legal context before the 2000s. At present, Finland like other Nordic countries has a communal mediation system, which has handled several disputes and conflicts in the neighbourhood and community. The background of this system is the community mediation system of the United States. However, the ideas of Christie and the restorative justice model have also built this system. In Finland, around 100-200 cases per year are filed for community mediation. In Norway, the National Mediation Office provides the community mediation service which is based on interests, facilitative mediation and the ideas of Christie.
The School mediation system was introduced in Finland in 2000, with the aim to resolve conflicts directly with the trained pupils and teachers. The theoretical basis for this system is the restorative approach. Cases of bullying and name-calling are also handled in this system. Norway also has a comprehensive school mediation programme built on the ideas of Christie and the Restorative Justice model. Sweden also has some school mediation projects.
Norway, Denmark and Finland have street mediation systems to stop young people from doing wrong, understand their blunders, take responsibilities and correct them.
Mediation in legal context in Scandinavian countries
Victim offender mediation
This system of mediation is popular in Finland, Norway, Denmark, and Sweden. Victim Offender Mediation first experimented in Finland in 1983, and the Act on mediation for criminal and civil cases was enacted in 2006. The focus of this system is mostly on juvenile crime cases and cases of assaults, thefts, and criminal damages. The mediators are provided with brief training before they start meditating. VOM is voluntary and not mandatory mediation. In Finland, there are about 12,000 cases of VOM per year. In 1981, the first victim-offender mediation started in Norway, and the act for mediation was enacted in 1991. Norway has about 9000 cases in VOM per year.
The first experiment of VOM started in the mid-1990s in Denmark. Here, mediation is an option for parties in suitable criminal cases. Unlike Finland, where mediation can replace criminal procedures, in Denmark VOM can only supplement the procedure but can not replace it. In Sweden, the VOM experiment started in 1987. It is mandatory to offer mediation to offenders under the age of 21 years. However, according to Marklund, the Swedish system seems ineffective when compared with both Norway and Finland. The VOM was built as a part of a movement criticizing the criminal justice system. Initially, the builders of VOM were sociologists. The main idea behind VOM was to seek more individualistic solutions for criminal cases. The background behind its development was the thinking of Christie and the reflexive theory of Gunther Teubner.
Judicial settlement and court connected mediation
In Scandinavian countries, the judicial efforts for settlement in civil procedure play an important role. As per Finnish legislation, a judge has to look for prospects of settlement during its preparation to get an amicable resolution of the matter that complies with the substantive law. In Finland, nearly 2500 settlements are certified by the district courts per year. Moreover, not all parties who have reached settlement requests to be certified. These judicial settlements are more like a compromising or conciliation system than a mediation system, as they are strictly settlement-focused.
In Denmark, after the main hearing of the civil case, the judge tells his or her probable judgment and asks the parties to settle among themselves to that approximation. There is no regulation for this system, the judges have developed it over the years. In Denmark and Norway, the term mediation also refers to such judicial settlement efforts.
Norway, Denmark and Finland have introduced a system of court-connected mediation. Norway started an experiment of this system in 1997and has been a permanent system since 2008. Denmark started the experiment in 2003 and has been permanent since 2008. No experiments were held in Finland, but at the beginning of 2006, the act on court-connected mediation was enforced. This procedure is voluntary to the parties and is managed by a judge in situations where parties can find a proper resolution to their conflict. The court decides whether the case is to be referred for mediation or not. And once the court decides to refer parties to mediation, another judge from the same district court is appointed to act as a mediator. In Denmark, the mediators for court-connected mediation are judges and lawyers. Whereas in Norway, primarily judges act as mediators but others are allowed to.
The judges acting as mediators in Nordic courts is quite unique, as most of the countries use a referral system where courts send a case to out off court mediation. The system of court mediation has developed over the years from unofficial experiments in the court system by the judges. The efforts to limit the number of court cases and the costs of the court system also played a role in the foundation of this system.
Lawyer mediation
The system of lawyer mediation in Nordic countries was founded by Finnish Bar Association in 1998 to resolve different kinds of conflicts. This system is voluntary in nature and takes a facilitative approach to mediate conflicts. Here, the parties in conflict appoint an advocate to mediate between them. In 2000, the Norwegian Bar Association adopted the mediation system and, in 2003 Danish Bar and Law Society established an Association of Danish Mediation Advocates. Along with Finland, the culture of lawyers and courts in other Nordic countries is changing to direct “negotiated law”
Other mediation systems
Nordic countries also use other mediation systems to resolve conflicts. Like in workplace mediation, a new phenomenon, where a mediator is appointed to resolve conflicts in a work community. Apart from this, the systems for commercial mediation, environmental mediation and labor mediation are also present. In Finland, Mediation by the Finnish Association of Civil Engineers deals with disputes of building projects, an industry prone to conflicts.
Since the mid-1990s, International Peace Mediation has been a widely used procedure in Scandinavian countries. Norway is a pioneer in international mediation, Sweden and Finland are also active in this system. This system aims to manage international crises and prevent violence. Nordic countries have several internationally acknowledged mediators. To name one such mediators, Nobel laureate Martti Ahtisaari. Research on peace and conflict are also very dynamic in these countries.
Mediation in action
Mediation in action is constructed on the theories and practical systems of mediation. Different theories need different mediation styles and techniques. Such techniques of mediation generally include skills of active listening, questioning, analytical reasoning and brainstorming. For example, in shuttle mediation, the parties stay in different rooms and the mediator is responsible to deliver offers and counter-offers between the parties. This kind is also known as strategic bargaining. In facilitative style, the mediator leads the mediation process and the typical skills needed are active listening, questioning and brainstorming. Whereas, in transformative style, the parties are in control of the process and thus the techniques of empowering, recognising and supporting the self-determination of the parties are typically used. In evaluative mediation, the mediator is responsible for the process but at least in part of the results.
The problem arises as to the mediator’s act and think differently in their day to day work and sometimes interprets what the theory of mediation postulates differently. To substantiate, Victim Offender Mediation does not always follow restorative justice theory and neither does court-connected mediation always uses the facilitative model. In practice, the mediation systems often evolve into mixed systems diverging from what the theories require them to be. These actions are called situational style, eclectic style, hybrid and mixed resolution systems. This confusion arises as mediators have many possibilities to choose from and the legislation of Nordic countries does not provide a detailed framework and regulations on what mediation process is to be followed. Research conducted by various scholars like Elonheim, Adrian and Jacobsson have found a gap between the theoretical basis of the mediation system and the behaviour of mediators. One of the reasons behind the gap is that the behaviour and style of mediators varies a lot.
Thus, the education and training of mediators is an important step so that they can recognise their actions and reflect on them. Apart from it, empirical studies and research on mediation are to be conducted for the development of the system.
Vibeke Vindeløv has stressed that the “mediator must take on the role of the reflective practitioner” who “trusts the parties to bring their knowledge and skills to bear on the problem”. She emphasises that the parties must define how broad the mediation should be.
Conclusion
Since the 2000s, Nordic countries have seen rapid growth in the effective use of mediation systems. Besides, research on dispute resolution methods and mediation have become quite dynamic. However, there still exists a lack of empirical studies and evaluations of the systems. Countries like Finland and Sweden still needs some sufficient training in areas of mediation to be as effective as other Nordic countries. In conclusion, for the development of a mediation system more empirical and theoretical studies are needed along with the development of mediation training.
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