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Definitions

 

Mediation

 

Over the past few years, there has been a growing recognition of important differences between 'mediation' and 'restorative justice' — and, therefore, of the need to be more careful about how these terms are used or applied.

 

Put simply, mediation is designed to resolve a conflict or dispute; whereas restorative justice is designed to address the harm caused by an offence or wrongdoing.

 

As Howard Zehr writes:

 

  • “The term ‘mediation’ is not a fitting description of what could happen [in a restorative encounter]. In a mediated conflict or dispute, parties are assumed to be on a level moral playing field, often with responsibilities that may need to be shared on all sides. While this sense of shared blame may be true in some criminal cases, in many cases it is not. Victims of rapes or even burglaries do not want to be known as ‘disputants.’ In fact, they may well be struggling to overcome a tendency to blame themselves. At any rate, to participate in most restorative justice encounters, a wrongdoer must admit to some level of responsibility for the offence, and an important component of such programs is to name and acknowledge the wrongdoing. The neutral language of mediation may be misleading and even offensive in many cases. Although the term ‘mediation’ was adopted early on in the restorative justice field, it is increasingly being replaced by terms such as ‘conferencing’ or ‘dialogue’ for the reasons outlined above.

 

Howard Zehr, “The Little Book of Restorative Justice”, (Good Books, 2002): p. 9

 

Advocates of restorative justice who mis-apply the terms ‘conflict’ and ‘dispute’ in this way have been taken to task by von Hirsch, Ashworth and Shearing:

 

  • [Some advocates of RJ suggest that] restorative processes are supposed ... to resolve the ‘conflict’ between offender and victim (Christie, 1977); but crimes are different from disputes in that the offender seldom claims to be entitled to what he takes – so what ‘dispute’ is being resolved? ... The idea of ‘conflict’, moreover, also carries no necessary implication that either part has wronged the other.”

 

von Hirsch, Ashworth and Shearing “Specifiying Aims and Limits for Restorative Justice” in ed. Von Hirsch et.al. Restorative Justice & Criminal Justice: Competing or Reconcilable Paradigms? (Hart Publishing, 2003): p. 22 & 23, n.3

 

It is important to note, however, that there are several overlaps between mediation and restorative justice. For example:

 

  • Harm may be caused as a result of an escalating conflict, in which case there may be a dispute that needs to be addressed alongside the restorative justice process in order to achieve a sense of genuine resolution.
  • Conflict may occur within a restorative justice process, and so mediation skills may be needed to resolve the matter, for example, where participants argue about what happened.

 

See the Scottish Community Mediation Network or the Scottish Mediation Network for more information on the use of mediation in Scotland.

 

Note: For an extended discussion on the differences between mediation and restorative justice, please download the following PDF paper (282 kb).


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