Vice president Special Commission for Social

Affairs

Federal Mediation Commission

Master Criminology (KULeuven)

European master in mediation (IUKB Sion)

Jef Mostinckx

Picture

EUROPEAN CRIME PREVENTION NETWORKBest Practice Conference Brussels 1-2 december 2010

Community and neigbourhood mediators provide a FREE, CONFIDENTIAL and VOLUNTARY

dispute resolution service to their community

3 parts1. What is mediation?2. What is community and

neighbourhood mediation?

3. The mediation process

Part 1: What is mediation?

• Mediation is a way of resolving disputes without going to the court;

• Mediation is an informal process in which a trained mediator assists the parties to reach a negotiated solution;

• Mediation as a process involves a neutral third party: – assisting two or more persons, "parties" or

“stakeholders”; – to find mutually-agreeable solutions to a conflict

or difficult problems.

Advantages of mediation

• It allows people to be heard; • It is an empowering process that encourages people to put

forward their own suggestions and ideas; • It is less intimidating than legal procedures;• People represent themselves rather than having someone

speak for them; • It provides solutions that the parties themselves have

decided on;• It gives people a sense of ownership of their agreement;• Agreements reached last much longer than solutions handed

down by courts or an arbitrator;• It can be organised quickly and it is easy to arrange;• It is usually affordable by all.

The role of the mediator is based on the following principles

1. Mediators help people to identify their needs, clarify issues, explore solutions and negotiate their own agreement

2. Mediators do not advise those in dispute, but help people to communicate with one another

3. Mediators are impartial, and must have no stake in the outcome of the process.

4. The mediation process is strictly confidential. Information revealed during the mediation session cannot be disclosed to anyone and cannot be used during any subsequent investigation.

Legislation about mediation in Belgium

1. Loi du 21 février 2005 modifiant le Code Judiciaire en ce qui concerne la médiation (MB 22.03.2005)

2. La médiation pénale, telle qu'elle est instaurée dans l'article 216ter du Code d'instruction criminelle par la loi du 10 février 1994, exécutée par l'arrêté royal du 24.10.1994 (MB 01.11.1994)

3. Loi du 22 juin 2005 pour l’introduction de la médiation dans la procédure pénale et loi du 22 juin 2005 pour réintroduction des prestations de service de la médiation dans les affaires judiciaires

4. Chap. III de l’arrêté du Gouvernement flamand du 4 avril 1990 pour coordonner les décrets (BJB) détermine le fonctionnement de la médiation concernant l’aide spéciale à la jeunesse (M.B. 08.05.1990)

5. La médiation et la concertation restauratrice en groupe: lois des 15 mai 2006 et 13 juin 2006 modifiant la législation relative à la protection de la jeunesse et à la prise en charge des mineurs ayant commis un fait qualifié infraction (Cf. Circulaire ministérielle n° 2/2007 du 7 mars 2007)

6. La médiation de dettes réglementée par la loi du 12 juin 1991 relative au crédit à la consommation est réglée pour la Région wallonne, par décret du 7 juillet 1994 et ses arrêtés d'exécution et pour la Flandre par décret du 24 juillet 1996 (l’agrément des instances pour la médiation de dettes)

7. Loi du 24 avril 2003 réformant l’adoption (MB 16.09.2005)8. VDAB, FOREM, BGDA et Bruxelles-Formation et le Arbeitsamt comme agences

gouvernementales pour la médiation de l’emploi (décrets de fondation/résolution)9. Décret du 13 avril 1999 en rapport avec la médiation privée de l’emploi dans la

Communauté Flamande, version coordonnée

Justice versus mediation

• Vertical logic (hierarchy)

• In search of truth

• Priority to public order

• Legal/juridical nature

• Judicial frame• Breaking off (Rupture)

• Horizontal logic (participation)

• In search of mutual agreement

• Priority to both parties’ interest

• Informal: Equivalence between the parties

• Social frame• Binding – reliance

Part 2: Neighbourhood mediators:

• are specialised in resolving disputes among residents and neighbours, such as noise nuisance, harassment and boundaries.

• work on the principle that members of the local community are the best people to resolve local disputes (=>citizenship and sense of public responsibility)

• are trained, but often work as volunteers.

Community and neighbourhood mediation is characterized by:

1. The use of trained community volunteers as the primary providers of mediation;

2. Volunteers are not required to have academic or professional credentials;

3. A private non-profit or public agency, with a governing/advisory board;

4. Mediators, staff and governing/advisory board are representative of the diversity of the community;

5. Providing direct access of mediation to the public through self referral and striving to reduce barriers to service including physical, linguistic, cultural, and economic;

Community and neighbourhood mediation is characterized by:

6. Providing service to clients regardless of their ability to pay;

7. Initiating, facilitating and educating for collaborative community relationships to effect positive systemic change;

8. Engaging in public awareness and educational activities about the values and practices of mediation;

9. Providing a forum for dispute resolution at the early stages of the conflict;

10.Providing an alternative to the judicial system at any stage of the conflict.

What is community and what isneighbourhood mediation?

Community mediation is focussing on community conflicts and community relationships: => disputes that involve issues affecting groups of residents. It is keeping the lines of communication open between the different groups in a community and is promoting social cohesion.

Neighbourhood mediation is focussing on neighbourhood conflicts.It is neighbourhood Dispute Resolution in relation to boundaries, noise, harassment, pets, parking, fences, trees etc.

Comparison barrister, social worker, therapist, mediator

Profession Barrister

Lawyer

Social worker

Therapist Mediator

Method Defending / juridical counsel

Case workGroup work Family work

TherapyCounselling

Mediation

Representing clients + + - -

Pleading the cause of a client + + +/- -

Defending interests of clients + + + -

Negotiate + + + +

Independency + - + +

Confidentiality + +/- + +

Take up a position (point of view)

+ + + -

What are the benefits of neighbourhood mediation?

• The service is free and is provided by trained mediators;

• It allows you to give neighbours a clearer idea of what the problem is;

• It’s impartial: mediators DO NOT take sides;• Realistic and practical outcomes can be agreed;• It offers the possibility for neighbours to stay on

speaking terms;• It avoids stress and financial aspects of employing

a solicitor and going to court;• IT IS CONFIDENTIAL.      

No compulsory elements

1. Each party is allowed to explain their own story; 2. The identification of issues, facilitated by the

mediator; 3. The clarification and detailed specification of

respective interests and objectives; 4. The conversion of a subjective approach into a

more objective; 5. Identification of options; 6. Discussion and analysis of the possible effects of

various solutions; 7. The adjustment and the refinement of the proposed

solutions; 8. The written agreement signed by the parties.

Advantages and disadvantages of neighbourhood mediation

Advantages• It is independent. • The parties decide the

outcome together • It is usually free • It can be quick • It is not adversarial, so it can

help maintain ongoing relationships

• It gives parties a possibility to have their say

• It can address problems of communication breakdown

• It can provide a way forward where there are no legal remedies

Disadvantages• It will not prove someone

wrong or right • It cannot guarantee that a

resolution is reached • You can’t make the other

person take part if they don’t want to

• The mediated agreement is not compulsory

Neighbourhood mediators often deal with the following issues:

1. Noise2. Disturbance3. Vandalism4. Pets5. Harassment6. Parking/Vehicular

access7. Behaviours of

young people

8. Upkeep of property9. Waste/Litter10.Boundary Disputes11.Gardens/Hedges12.Hours of activity 13.Landlord/Tenant

– payment– cleanliness – repairs– renovation

Part 3: Mediation processHow to mediate between neighbours?

The neigbourhood mediator is:

1.The opener of communication2.The legitimizer3.The process facilitator4.The trainer5.The resource expander6.The problem explorer7.The agent of reality8.The scapegoat9.The leader

Tasks of the neigbourhood mediator

1. Initiates or facilitates communication (= opener)2. Helps all parties recognize the right of others to be involved

in negotiations (= legitimiser)3. Provides a procedure and chairs the negotiating process

(= facilitator)4. Educates unprepared parties in the bargaining process

(= trainer)5. Offers procedural assistance and links them to outside

experts (= expander)6. Enables people in dispute to examine the problem from a

variety of viewpoints (= explorer)7. Helps build a reasonable and implementable settlement

(= reality check)8. Takes some of the responsibility or blame for an unpopular

decision (= scapegoat)9. Takes the initiative to move the negotiations forward

(= leader)

Neighbourhood mediators – Who are they and what do they do?

• They are trained volunteers or trained officers;• They will listen to both parties involved in a dispute;• They will remain neutral;• They are non-judgemental;• They do not suggest solutions or dispute the facts;• They help neighbours to resolve their problems through the

controlled process of mediation;• They set some ground rules, such as:

– no interrupting while one person is speaking– ask the parties if they would like to add something– summarize what each party has said – identify both facts and feelings so that each party feels heard

and can move toward a solution– identify common ground about what has happened and what is

needed to resolve the situation.

How does neighbourhood mediation works?

Once a referral is made to the service: – two mediators are allocated to the case by the coordinator

– they will visit each party and discuss the issue(s).

If the parties agree to a mediation session – the mediators will arrange for a safe, neutral location for

the neighbours to meet and talk through the issues.– they will explain the process of mediation, including how

the mediation session will be conducted. – the mediators will listen to all sides and will assist the

neighbours in reaching an agreement.

Mediation process

Stage 1:  Introduction• Mediators and participants introduce themselves• Mediators explain the mediation process

Stage 2:  Story telling = Uninterrupted Speaking Time• Each party will have the possibility

• to talk about what has brought them into mediation • to explain their perspective• to say what they need and what is needed to resolve

the situation.

Stage 3:  Clarifying Issues/Setting the Agenda:  • Speaking about questions that are relevant to the issues.  • Creating a list of specific issues that the parties want to

address.

Mediation process

Stage 4:  Brainstorming:• Listing as many ideas as possible to spark an idea for a

workable solution that is acceptable to all parties

Stage 5:  Evaluating of alternatives:• Mediators ask “reality check” to make sure they are choosing

options that satisfy their needs. • Mediators will try to ensure that the agreement is in balance,

i.e. no one party is taking all the responsibility for the agreement

Stage 6:  Writing the Agreement:• Mediators will write the agreement for the parties, making

sure the parties have the Who, What, Where, When, and How so that the agreement is realistic and clear. 

Conclusion

Four doors courthouse1. A door for justice2. A door for arbitration3. A door for negotiation

and reconciliation4. A door for mediation

MediationJudicial frame

Social frame

Judiciary (court)

Arbitration

Negotiation

Binding advice Therapy Counselling

Social Work Community work

Teaser

This afternoon you will have the possibility

to assist to 5 interesting presentations of best practices of neighbourhood mediation:– Belgium, Robert Delathouwer– France, Sheila Guyot-Sutherland, project AMELY - Lyon – The Netherlands, Marina Blok, neighbour mediation

Rotterdam centre– Luxemburg, Paul Demaret, centre of mediation in

Luxemburg – Spain, Oscar Valverde, project Badalona (Barcelona)