Jef Mostinckx
Picture
Vice president Special
Commission for Social Affairs
Federal Mediation Commission
Master Criminology (KULeuven)
European master in mediation (IUKB Sion)
EUROPEAN CRIME PREVENTION NETWORK
Best Practice Conference Brussels 1-2 december 2010
Community and neigbourhood mediators
provide a FREE, CONFIDENTIAL and VOLUNTARY
dispute resolution service to their community
3 parts
1. What is mediation?
2. What is community and
neighbourhood mediation?
3. The mediation process
Part 1: What is mediation?
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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
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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.
2.
3.
4.
5.
6.
7.
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9.
Loi du 21 février 2005 modifiant le Code Judiciaire en ce qui concerne la médiation (MB
22.03.2005)
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)
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
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)
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)
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)
Loi du 24 avril 2003 réformant l’adoption (MB 16.09.2005)
VDAB, FOREM, BGDA et Bruxelles-Formation et le Arbeitsamt comme agences
gouvernementales pour la médiation de l’emploi (décrets de fondation/résolution)
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:
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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 is
neighbourhood 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 work
Group work
Family work
Therapy
Counselling
Mediation
Representing clients
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+
-
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Pleading the cause of a client
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+/-
-
Defending interests of clients
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+
-
Negotiate
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+
+
Independency
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+
Confidentiality
+
+/-
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+
Take up a position (point of
view)
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-
What are the benefits of
neighbourhood mediation?
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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.
2.
3.
4.
5.
6.
Noise
Disturbance
Vandalism
Pets
Harassment
Parking/Vehicular
access
7. Behaviours of
young people
8. Upkeep of property
9. Waste/Litter
10.Boundary Disputes
11.Gardens/Hedges
12.Hours of activity
13.Landlord/Tenant
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payment
cleanliness
repairs
renovation
Part 3: Mediation process
How to mediate between neighbours?
The neigbourhood mediator is:
1. The opener of communication
2. The legitimizer
3. The process facilitator
4. The trainer
5. The resource expander
6. The problem explorer
7. The agent of reality
8. The scapegoat
9. The leader
Tasks of the neigbourhood mediator
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9.
Initiates or facilitates communication (= opener)
Helps all parties recognize the right of others to be involved
in negotiations (= legitimiser)
Provides a procedure and chairs the negotiating process
(= facilitator)
Educates unprepared parties in the bargaining process
(= trainer)
Offers procedural assistance and links them to outside
experts (= expander)
Enables people in dispute to examine the problem from a
variety of viewpoints (= explorer)
Helps build a reasonable and implementable settlement
(= reality check)
Takes some of the responsibility or blame for an unpopular
decision (= scapegoat)
Takes the initiative to move the negotiations forward
(= leader)
Neighbourhood mediators –
Who are they and what do they do?
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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:
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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:
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two mediators are allocated to the case by the coordinator
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they will visit each party and discuss the issue(s).
If the parties agree to a mediation session
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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
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Mediators and participants introduce themselves
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Mediators explain the mediation process
Stage 2: Story telling = Uninterrupted Speaking Time
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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:
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Speaking about questions that are relevant to the issues.
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Creating a list of specific issues that the parties want to
address.
Mediation process
Stage 4: Brainstorming:
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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:
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Mediators ask “reality check” to make sure they are choosing
options that satisfy their needs.
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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:
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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 courthouse
1. A door for justice
2. A door for arbitration
3. A door for negotiation
and reconciliation
4. A door for mediation
Judiciary
(court)
Negotiation
Judicial
frame
Arbitration
Social Work
Mediation
Binding
advice
Therapy
Community
work
Social
frame
Counselling
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)