Mediation in Theory and in Practice in Scandinavia Kaijus Ervasti Valtiotieteellinen tiedekunta / Henkilön nimi / Esityksen nimi 5.12.2018

Speaker: Kaijus Ervasti

What do you see in the picture?

1. Conflict resolution

Tendencies in conflict resolution Using of ADR and mediation has increased in Europe In theoretical level there is a discussion of access to justice, postmodern law, legal pluralism and deliberative democracy Theoretical understanding of different ADR – mechanisms and processes like mediation is however low One way to build and assess conflict resolution systems is DSD (Dispute System Design) In Nordic countries especially victim-offender mediation ans also court-connected mediation have strong positions

Conflict resolution systems in Finland and in other Nordic countries Court system General courts (criminal and civil procedure) Administrative courts Arbitration Advisory services Counselling Ombudsmen Boards Self-Regulation systems Council of mass media Finnish Bar association Others Mediation services Official mediation systems Private mediation systems

Different ways to handle conflicts in general courts Full-scale trial and judgment Promotion of settlement in civil procedure (in preparatory stage) Court - connected mediation

3. Mediation in theory

Mediation as a system Theoretical models of mediation Practical mediation systems in context Mediation in Action

Theoretical models of mediation (Ervasti & Nylund 2014) Individual centered Problem solving Solution-focused Compromising Evaluative Process-focused Facilitative, interest-based Human growth Development-focused Transformative Narrative Humanistic Restorative Therapeutic Models of mediation Community centred

Basic model of mediation The basic model of the mediation is the facilitative, interest-based model. Mediator has responsibility of process and parties have responsibility of the outcome Mediator shall not direct case to a certain outcome or shall not make proposals for a settlement The main idea of mediation is that the parties can get high quality, individual results according their needs and interests - contrary to adjudication which gives standardized results according the law Mediation in action must be in line with chosen theoretical model

Practical Mediation systems in Context (Ervasti 2018) Valtiotieteellinen tiedekunta / Henkilön nimi / Esityksen nimi 5.12.2018

Expansion of mediation in Finland 1946 1948 1983 1998 2000 2000 2006 2007 2007 2009 2011 Mediaiton in labour disputes (law) Family-mediation (law) Victim-offender mediation (law) Lawyer Medation School mediation Workplace mediation Court mediation (law) Neighbor-hood mediation Mediation of construction disputes Environmental mediation (experiment) Expert- assisted family mediation in courts (law)

3. Mediation in action

What do you see in this picture?

Typical techniques in different models (Ervasti 2018) Evaluative Compromising Facilitative Transformative Evaluating Forwarding offers and counter-offers Improving communication Empowerment Information promotion Favouring middle of the range results Active listening Recognition Settlement proposals Highlightning the benefits of quick solution Questioning Changing the quality of conflict interaction Challenging, reality testing Highlightning the harms of other solutions (like litigation) The development of alternatives/ brainstorming Supporting the parties’ exercise of self-determination Caucuses One form of compromising is ”shuttle- mediation” Dealing with emotions

Mediators attitudes to techniques Don’t know much about techniques Knows something about techniques but doesn’t care Knows something about techniques but behave differently Knows and try to use them but find it difficult Knows and use techniques and reflect own actions

Problems with mediation in legal context According the pure model of mediation (facilitative) mediator dominates the mediation process but the parties dominate subject matter of the conflict and the resolution of the conflict In legal context (e.g. court - annexed mediation) mediation systems are often in practice hybrid systems; there are activities like evaluation and compromising In many western countries judges promote settlement in court process; it is not mediation In some countries there are mandatory mediation systems In hybrid conflict resolution systems ethical principles of mediation do not realize and on the other hand people get not even formal legal protection; it can be semi-legal system

Examples of gap between theoretical basis of mediation and behaviour of mediators Finland: VOM Denmark: Court – connected mediation Sweden: VOM Norway: Court –connected mediation Valtiotieteellinen tiedekunta / Henkilön nimi / Esityksen nimi 5.12.2018

Legal education ”For law students to focus exclusively on the litigation process is like medical students studying only surgery as a means of curing illness. Of course, that is not what medical students do. They study an extensive range of subjects for the treatment and cure of illnesses. Law students too must extend their focus beyond the litigation arena to a greater understanding of problem-solving approaches. The legal community’s failure to do this for so long may be part of the reason for so much congestion in the civil justice system.” (Jaqueline M. Nolan-Haley 2001) Valtiotieteellinen tiedekunta / Henkilön nimi / Esityksen nimi 5.12.2018

More information Ervo, L. & Nylund, A. (eds.): The Future of Civil Litigation. Access to Court and Court – Annexed Mediation in the Nordic Countries. Springer 2014. Adrian, L. & Ervasti, K. & Nylund, A.: Mediation Research in Nordic Countries ( Forthcoming, will be published in the spring). Springer 2018. Valtiotieteellinen tiedekunta / Henkilön nimi / Esityksen nimi 5.12.2018

Thank you! Valtiotieteellinen tiedekunta / Henkilön nimi / Esityksen nimi 5.12.2018