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					          Jef Mostinckx

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           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?

•   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             • Horizontal logic
  (hierarchy)                  (participation)
• In search of truth         • In search of mutual
                               agreement
• Priority to public order   • Priority to both parties’
                               interest
• Legal/juridical nature     • Informal: Equivalence
                               between the parties
• Judicial frame             • Social frame
• Breaking off (Rupture)     • 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 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           Social        Therapist Mediator
                                 Lawyer              worker
                                 Defending /         Case work     Therapy       Mediation
Method                           juridical counsel   Group work    Counselling
                                                     Family work
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                           Disadvantages
• It is independent.                 • It will not prove someone
• The parties decide the               wrong or right
  outcome together                   • It cannot guarantee that a
• It is usually free                   resolution is reached
• It can be quick                    • You can’t make the other
• It is not adversarial, so it can     person take part if they don’t
  help maintain ongoing                want to
  relationships                      • The mediated agreement is
• It gives parties a possibility       not compulsory
  to have their say
• It can address problems of
  communication breakdown
• It can provide a way forward
  where there are no legal
  remedies
     Neighbourhood mediators
often deal with the following issues:


1. Noise                 8. Upkeep of property
2. Disturbance           9. Waste/Litter
3. Vandalism             10.Boundary Disputes
4. Pets                  11.Gardens/Hedges
5. Harassment            12.Hours of activity
6. Parking/Vehicular     13.Landlord/Tenant
   access                  –   payment
7. Behaviours of           –   cleanliness
   young people            –   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

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 courthouse
     1. A door for justice
     2. A door for arbitration
     3. A door for negotiation
        and reconciliation
     4. A door for mediation
 Judiciary          Negotiation     Social Work         Community
  (court)
                                                          work

                             Mediation
             Judicial                          Social
              frame                            frame


Arbitration             Binding
                                     Therapy            Counselling
                        advice
                       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)

				
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posted:9/4/2011
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