Growth of ADR within the criminal context Monday, Apr 23 2012 


ADR has advanced in the criminal context from earlier `informal justice programs’ to the notable dominant forms we have today. These dominant forms of ADR include Victim–Offender Mediation Programs, focused on restitution and reconciliation of crime related offenders through one to one meetings between victims and offenders before trained mediators[1].  The Victim-Offender Mediation Program also addresses crimes, such as vandalism and burglary, but has as well been used to address complex criminal matters such as negligent homicide, armed robbery and rape.[2]

Quite a number of  criminal ADR have developed, such as victim-offender panels, victim assistance panels, community crime prevention programs, sentencing circles, ex-offender assistance, community service and specialist courts; these ad hoc programs are available to give the victim a voice, one which has been helpful to the offender, in the sense it enables the offender state their own side of the story. Understandably, giving reasons for actions carried out, and at the same time acting as an assistance mechanism in the healing process[3] .

With the evolution of ADR came the restructure of criminal law, this became imminent when society began to prefer ADR to court processes.  The objective of reconstructing criminal law was to adopt a more ` philosophical and political paradigm’ which shapes and legitimises some aspects of law operations, such approach is seen in the treatment of sexual offences such as rape.[4] ADR advocates at some point the appreciation of  the progress of  criminal law in the way it assists offenders, and the platform for change which ADR advocates. The  growth of ADR has simply been  because these processes are dealt with from the perspective of the institution.

Presumably the presentation of alternatives told from a different angle, such as the accused persons, helps illustrate the issues properly and gives the person a reason to hope for better or more so become a better person.[5] Sometimes, this can prove difficult because of the flexibility evident in ADR as opposed to criminal law, which more often than not is usually handled by the criminal court which obviously is strict and firm in the execution of its duties.

The issue of conflict resolution using ADR process is an area the Ford Foundation developed, a pioneer programme in the late 70’s dealing with complex public policy disputes, regulatory disputes, which was simply ways of handling matters outside the conventional methods.[6] This illustrates the power of ADR, the ability to stretch beyond the norm and still stay true to its  form. Therefore,  ADR has the potential to deal with a matter within the criminal context, without altering the essence of the justice.

[1] Maggie Grace `Criminal Alternative Dispute Resolution: Restoring Justice, Respecting responsibility, and Renewing Public Norms’ 2010 Vermont Law Review = 1524762  accessed 20 April 2012

[2] Ibid

[3] Ibid

[4] Nicola Lacey,Celia Wells & Dirk Meure, `Reconstructing Criminal Law’ [992] Vol 55 Modern Law Review   140

[5] Ibid 140

[6] Mauro Cappelletti `Alternative Dispute Resolution Processes within the Framework of the World-Wide Access –to-Justice Movement’ 1993 Vol 56  Modern Law Review 283

The outstanding nature of mediation Thursday, Apr 5 2012 

Globalisation has changed the face of litigation immensely. This reinforces the struggle for adjudicatory authority. As stated by a Professor Emeritus of History and a visiting scholar at Harvard Law School ”a movement towards substantive justice, outside the procedural norms of the legal system, has evolved into a movement for procedural reform of the judicial system’ for which disputants find easily accessible[1].

The promotion of ADR can be viewed as an integral part of the ADR movement: when properly considered, it becomes obvious ADR is less an alternative and more of a means of restoring and infringing the litigation system and encouraging the judicial process, particularly where it is supported by the public justice system through the provision of in-court schemes[2]. Accordingly, it has been emphasised by an ADR advocate that the ‘alternatives’ have come at a moment where there is a renewed self-consciousness about the civil justice system as it seen today[3]. A notable example of the use of ADR mechanism in achieving the same objective set in litigation is seen in voluntary mediation.

Interestingly, voluntary mediation is a form of ADR which has developed in family dispute resolution; here it seeks to assist and support the parties in their independent negotiations, thereby giving them the freedom and skills required to control their agreements and avoid the control of lawyers and the civil justice[4]. The rise of family mediation is as a result of the realisation of the limits the litigation process has, for which the ADR process evidently does not have. However, it would be incorrect to lay claim to the growth of family mediation solely to England, rather it has been noted that the process had reached other countries quickly and easily. The development of family mediation in the UK has been since the 1970’s which was provided for in the Practice Direction on Matrimonial Conciliation issued on 27 January 1971, by the President of the Family Division of the High Court under the auspices of the Lord Chancellor[5].

In Ireland the constitution demands and expects respect for the autonomy of the family and this respect is obviously supported by mediation. When there is a conflict in the family, to a large extent this sometimes is undermined by the State interference through the judicial process. Mostly because mediators see the conversion of a family dispute, which is seen as a private issue into a legal issue, which requires some artificiality and an erosion of that much-needed privacy. Ultimately mediators recognise the importance of fostering and preserving the family unit despite child related issues or separation or even a divorce as the case may be[6].

Similarly, there is a traditional Hawaiian process of resolving family disputes called ho’oponopono (setting to right), this process stems from a belief that there exists a relationship between the gods, nature, and human beings and this three are interrelated in the web of life and any conflict should be resolved immediately and privately. The ho’ oponopono’  idea is one normally conducted in a family conference with an open and close prayers[7]. Likewise, mediation family members of this traditional Hawaiian process saw the recurring success and avoided legal courts, rather they sought to create its awareness through videotapes, manuals and other supporting documents[8]. This illustrates that the traditional means of settling disputes did apply and were widely used in various areas before the advent of legal courts. Today, with the increase in fees and duration it takes for a matter to be settled, most people are willing to retrace their steps to traditional  processes that worked for them such as having family members or elders mediate in a dispute.

Given the historical background of the legal profession, lawyers belong to an elitist profession which is permanently in decline, one that has lost its `fine sense of dignity and honour’ and has rather become `contaminated with the spirit of commerce’[9]  Such has resulted in lawyers being commercially minded as opposed to having a passion for a calling[10]. For this reason, lawyers are under strict regulations designed by and for lawyers to curb incidents of commercially minded lawyers who have contributed to the unattractiveness of litigation.

The discontent and dissatisfaction faced by lawyers with litigation, significant number of lawyers have sought to retrain in ADR practitioners. Given their legal background it supposedly gives them an edge which makes them better ADR practitioners. However, experts have noted that many non-lawyer specialists are equally or better qualified than lawyers to assist in routine matters as seen in mediation[11]. Therefore it follows, if non-lawyers are able to provide services in ADR, it is a given that the growth of ADR would continue to be on the increase simply because one must not be legally trained to provide ADR.

 What other similar concept of  the Hawaiian ‘ ho’ oponopono’ exists in the world ?

[1] Auerbach`Justice Without Law’ Oxford University Press 1984  15

[2] Sinead Conneely `Family Mediation in Ireland’ Ashgate Publishing Limited 2002  7

[3] Simon Roberts `Alternative Dispute Resolution and civil Justice: an unresolved relationship’ 1993 Vol 56 Modern Law Review 463

[4] Sinead Conneely `Family Mediation in Ireland’ Ashgate Publishing Limited 2002  9

[5] Sinead Conneely `Family Mediation in Ireland’ Ashgate Publishing Limited 2002  11

[6] Sinead Conneely `Family Mediation in Ireland’ Ashgate Publishing Limited 2002   22-23

[7] Sally Engle Merry and Neal Milner `The Possibility of Popular Justice’  University of Michigan Press 1993  249

[8] Ibid

[9] Deborah Rhode `In the Interests of Justice: Reforming the legal Profession’ Oxford University Press 2000 1

[10] Ibid

[11] Ibid 136