Book Review: How Mediation Works: Theory,Research, and Practice by Stephen B. Goldberg,Jeanne M. Brett,Beatrice Blohorn‐Brenneur,With Nancy H. Rogers

This is a book review of How Mediation Works: Theory, Research, and Practice by Stephen B. Goldberg, Jeanne M. Brett, Beatrice Blohorn‐Brenneur, with Nancy H. Rogers. How Mediation Works is intended for a wide range of audiences: practicing mediators; aspiring mediators; those who may refer cases to mediation; participants in mediation, including parties and attorneys; managers who facilitate disputes; and those interested in mediation without a specific plan to engage in the practice (who the authors call “mediation learners”). The book is a well‐written, thoughtful, easy‐to‐read, organized, and concise overview of mediation practice. The book is divided into six chapters: (1) conflicts, disputes, and their resolution; (2) dispute resolution processes; (3) the roles of the mediator and the disputing parties at each step of the mediation process; (4) dealing with difficulties; (5) mediation and the law; and (6) suggestions for aspiring mediators. Though not an authority for family law mediation, the book provides many insightful observations and suggestions that would be instructive and helpful to any mediator or individual with an interest in mediation.     

The Brooklyn mediation field test

This paper describes an experiment in which 465 felony arrest cases in Kings County, NY, USA, were, randomly, either filed in court and prosecuted or sent to a dispute resolution center for adjudication. The cases all involved persons who were acquainted, and nearly half were either intimate partners or in other immediate family relationships. The results indicated that the mediation process was perceived more positively by complainants than was prosecution and that going through mediation enhances complainants’ perceptions of their relationships with defendants to a greater degree than going through the court process. However, there was no evidence that mediation was no more effective than prosecution in preventing recidivism. Not surprisingly, in cases involving intimate partners or immediate family members, the offenders were most likely to experience continuing problems whether they were sent to mediation or were prosecuted. One of the values of this study is that, in the late 1970s, when this research was conducted, mediation was considered by many to be a legitimate alternative to prosecution in family violence cases, including cases arising from intimate partner violence. The data that we collected would be difficult to replicate in today’s political climate. While our study did not find that mediation reduced the odds of recidivism in these cases, neither did we find that mediation made victims less safe. Thus, it partially supports the sentiments of researchers such as Braithwaite and Strang (Restorative justice and family violence. In Strang H, Braithwaite J (eds) Restorative justices and family violence. Cambridge University Press, Cambridge, UK, pp 1−22; 2002), who argue that—given the evidence for success of restorative justice in reducing re-offending in cases other than family violence—it is worth testing whether similar beneficial effects could be found in applying restorative justice approaches to family violence cases.

Is there a need to regulate mediation? The English and Welsh case study

The use of mediation in England and Wales is nowadays an accepted and common practice within the alternative dispute resolution industry. Credited professionals have been performing the duties of a mediator in different fields of legal disputes; however, despite the positive perception of mediation, this area remains unregulated. So far, the rules applying to mediation in England and Wales originate from case law and contract between the parties. Such a scenario is not shared by other countries in which mediation has been regulated through an Act covering either private or judicial mediation. This article examines the current mediation scenario in England and Wales to assess whether there is a need to give it a statutory character in a similar manner to other jurisdictions.     

ANALYSIS OF MEDIATION AGREEMENTS OF FAMILIES REPORTING SPECIFIC TYPES OF INTIMATE PARTNER ABUSE

The purpose of this study was to carefully measure Intimate Partner Abuse (IPA) behaviors among a large ( n  = 864 couples) sample of pairs of husbands and wives who were mandated to attend divorce mediation and then to: categorize the behaviors into theoretically-driven types of IPA, determine the number of cases screened out of mediation for any reason, and investigate whether measured outcomes of mediation (primary physical and legal custody) were related to IPA. Results indicated that rarely was IPA not reported—the most frequently reported IPA behavior was psychological abuse (98% of wives; 97% of husbands), followed by physical abuse (58% of wives; 54% of husbands), escalated physical abuse (62% of wives; 50% of husbands), and sexual intimidation, coercion and rape (56% of wives; 29% of husbands). Rarely were couples reporting IPA screened out of mediation (5%), and rarely were supervised parenting time or restrictions on contact between parents included in mediated agreements made by couples reporting IPA (6.5%). The overall level of IPA was unrelated to the specific terms of mediated agreements; however, by far the most frequent type of mediated agreement the couples' negotiated in mediation was for primary physical custody to go to the wife and for the husband and wife to have joint legal custody (59% of cases). Analysis of the implications of these findings and policy recommendations are included.     

A school peer mediation program as a context for exploring therapeutic jurisprudence (TJ): Can a peer mediation program inform the law?

This paper reports an exploratory study of a school peer mediation program implemented as an alternative way to manage bullying and other destructive conflict. The study explores the effects of the program on the well-being of members of the school community by examining perceptions of students, staff and a sample of parents and former students. Drawing on therapeutic jurisprudence (TJ) the study explores whether the component parts of the program, separately or together, promote intended or unintended therapeutic effects. The preliminary findings of the study emphasise the importance of peer mediation training and suggest that existing scholarship in the area of school conflict resolution and peer mediation, when viewed through a TJ lens, may provide valuable insights into how to optimally configure programs for development and adoption in schools and other community settings. The study highlights the lack of attention paid by the legal system to valuable scholarship in the area of school conflict resolution and peer mediation, which may have implications for the understanding and development of legal processes and the law in general.     

The Ideologies of Mediation: The Movement's Own Story

This paper has three aims. First, it describes the ideologies of six organizations that have been and continue to be prominent in the alternative dispute resolution (ADR) movement in the United States. These organizations all feature the use of mediation as a central component of their work and as a solution to larger social problems.
Second, it elaborates some points of similarity and difference in these ideologies in light of a debate that emerged in the late 1970's between "community" and "agency" models of mediation, that is, between programs that chose to closely affiliate with the formal justice system and those that chose not to. Several years after the start of this debate, we believe there are important points of convergence and divergence that have not received enough attention by those who advocate for or against alternative dispute processing.
Finally, the authors wish to use the opportunity this study provides to speculate more openly on the contemporary meaning of legal informalism and the ways in which formal and informal legal structures now seem to be linked.     

行政调解的制度价值、内生贫困与生长点

行政调解作为调解的一种类型体现了行政机关服务行政的鲜明特点。行政解纷独特的优势以及公众对行政机关解决纠纷的需求,使对行政调解的研究具有重要的价值。本文从调解的治理功能、政策回馈效果以及多元化解纷趋势三个角度探讨了行政调解的制度价值,并对行政调解制度的内生贫困所引致的具有任意色彩的行政调解实践以及实践载体的模型构建与研究阙如进行了分析。行政调解制度新的生长点,在于固定行为研究既得价值,推进制度文本的出台,并以此推动制度载体和制度实践的扩展。     

法院调解“内卷化”与调解资源外部植入——以Q市两级法院人大代表协助诉讼调解实践为例

在纠纷解决的资源视角下,法院调解资源的投放情况攸关调解的效能。由于缺乏传统"马锡五审判方式"所隐含的"熟人权威"资源背景,法官更多通过增加调解工作频度以弥补熟人资源的缺失,造成了诉讼调解的"内卷化"。地方实践中的人大代表协助诉讼调解,在人大代表介入调解的正当性基础上,通过常识性话语资源优势和社会资本优势,为法院调解提供了"意外"资源支持的机遇结构,在一定程度上改善了调解"内卷化"问题。     

Victim–Offender Mediation in Cases of Intimate Relationship Violence—Ideals,Attitudes, and Practices in Finland

In Finland the first experimental mediation projects founded on the principles and ideals of restorative justice were started in the beginning of the 1980s. Before the Act on Mediation in Criminal and Certain Civil Cases (1015/2005) came into force in 2006, mediation services were provided by cities, municipalities, and non-governmental organizations. Victim–offender mediation (VOM) practices varied, and there was minimal guidance and supervision by state authorities. The Act (1015/2005) aimed to standardize mediation services and practices and enable evaluation of VOM in order to provide solutions to some of the issues raised regarding mediation in intimate relationship violence (IRV). The Act states that only police or prosecutors may initiate the process for referring a case that involves intimate relationship violence. Furthermore, mediators/facilitators who handle IRV cases are required to attain further training. This article examines the ideals, attitudes, and practices of VOM in relation to intimate relationship violence in Finland. The aims and ideals stipulated in the Act on Mediation are presented and later compared to actual practices of VOM which were obtained through the review of documented agreements. These were the end-results of VOM in cases of intimate relationship violence. The empirical data also included a questionnaire sent to mediators in three offices as well as a national questionnaire sent to prosecutors.     

可行与可及：论医院内部调解的正当性及功能

医院内部调解是在医疗纠纷解决过程中发挥重要作用但往往被人们忽略的一种有效调解形式。以调解的正当性要求审视,医院内部调解可以在符号、语言、程序和关系网络等方面实现调解的中立要求,也可以在治疗型调解和教化型调解中满足调解的合意要求,这证明了医院内部调解的可行性。实践证明,医院内部调解可以较大提高纠纷的终结力,提高医患双方对解纷的满意度,还能有效维护医疗秩序和提高医疗质量,这证明了医院内部调解的可及性。     

司法调解与治理变革--以陕甘宁边区基层司法档案为中心的考察

司法调解是多元化纠纷解决机制的重要组成部分之一,而以陕甘宁边区为代表的革命根据地调解制度,则是当代中国司法调解的主要渊源。革命根据地的调解,不止是一项司法制度或者新型司法制度中的一个环节,它实质上更是一种治理模式,辅助革命政策的推行。通过荣誉、身份等象征资本重塑调解人,不断将革命伦理、法制融入新型调解规则体系之中,中国共产党借助司法调解,较好地实现了革命根据地社会治理模式的变革,有效消解了革命法制与社会旧俗之间的紧张关系,增进了普通民众对共产党政权的认同度。革命时期的调解尽管存在制度缺漏、行政导向等缺陷,但它对社会文化、习俗的娴熟运用,对社会组织、地方权威人物的组织吸纳,以及注重消弭社会冲突、维护邻里和睦的价值取向,实际上是中国共产党领导的治理变革在法治中的生动体现,也成为当下司法与社会治理可资取鉴的历史资源。     

PROFESSIONAL INTERDEPENDENCE IN DIVORCE PRACTICES

Divorce mediation is one area of the new and growing field of interpersonal mediation. Differences and similarities between divorce mediation and divorce psychotherapy are discussed in this article, and a method for teamwork between the two professions is proposed. The authors take the approach that the separate but overlapping practices of mediation and psychotherapy can be interdependent and that specific benefits to divorcing clients can result when divorce mediation and divorce psychotherapy are practiced collaboratively.     

Apology in victim–offender mediation

Victim–offender mediation practices bring conflicting parties together so they can engage in a two-way dialogue and ultimately negotiate a mutually agreeable resolution. The fact that apology may be a motivator for participating in the mediation process and that it is often a common outcome of mediation suggests that research on mediation ought to more carefully explore the nature of the apologies that are offered. The present study provides a qualitative exploration of the prevalence and nature of the apologies offered by offenders to their victims during face-to-face mediations. Fifty-nine mediation agreements recorded by the longest running mediation scheme in the UK were analysed. It was found that 50.8% of agreements contained mention of the perpetrator saying ‘I’m sorry’ or offering a partial apology (i.e. acknowledging harm and/or promising forbearance). Full apologies were absent in the mediation agreements. Agreements did not make explicit mention of the offender admitting responsibility or expressing remorse or regret. Finally, although the mediation agreements did not make any explicit mention of offenders offering reparation, they did record efforts at providing solutions to the conflict.     

SPOUSAL CONSENSUS ON THE DIVORCE DECISION AND MEDIATION OUTCOME

This study examined the relationship between spousal consensus on the decision to divorce and mediation outcome. Based largely on clinical experience and deductive reasoning, the conceptual literature has held that low consensus is negatively related to success in divorce mediation. To empirically explore this relationship, 72 families beginning court-ordered divorce mediation were asked whether they agreed that divorce was the best way out of their problems. Statistical analysis of their responses as they related to the outcome of mediation did not support the conceptual literature. No significant relationship was found between spousal consensus on the divorce decision and mediation outcome, a finding which agrees with the limited empirical research. This indicated that mediation is more tolerant of spousal nonconsensus than had been assumed in the divorce mediation literature.     

The importance of teaching dispute resolution in a twenty-first-century law school

Civil justice reviews over the past 20 years have encouraged the use of alternative dispute resolution (ADR) and particularly mediation. Mediation is arguably now becoming more mainstream in terms of dispute resolution process choice. In some instances law changes have been introduced requiring parties in dispute to consider using mediation; similarly, lawyers have an ethical responsibility to provide advice to their clients about the range of dispute resolution processes available. What is lacking however is a corresponding appreciation of the changing attitudes to the teaching of dispute resolution in the majority of UK law schools, where the promotion of adversarialism within the curriculum appears to remain the focus as the primary and only method of dispute resolution. The article argues that this is unreflective of current attitudes and thinking towards dispute resolution in most common law countries, where litigation is no longer necessarily the primary dispute resolution process of choice. Whilst there was token appreciation of the importance of mediation advocacy and its inclusion recommended within the Bar Practice Training Course (BPTC), the recent Legal Education and Training Review was silent on any suggestions about the inclusion of dispute resolution based curriculum content at any stage of legal education in England and Wales. The article will explore the historical development of lawyers’ attitudes to dispute resolution within the civil justice arena and academics’ teaching of curriculum associated with it in UK law schools. The article will pose questions on why recent legal history suggests that law schools should now perhaps take a more socio-legal approach to their curriculum content and embrace the teaching of dispute resolution as a defined subject area for the twenty-first-century law school.     

CHILD PROTECTION MEDIATION: A 25-YEAR PERSPECTIVE

This article reviews the creation, development, and growth of child protection mediation (CPM) in the United States. Starting with a few pilot projects in the 1970s, CPM has grown throughout the country. The article traces child protection's development through the publication of the Resource Guidelines and Model Courts and then discusses what the necessary ingredients for a mediation program are. Mediation is then discussed from a judicial perspective. Barriers to mediation are listed, followed by a discussion of special issues that arise when developing and maintaining CPM programs. The article concludes with the observation that CPM is now recognized as a best practice by most judges and court improvement professionals and that it continues to grow.     

The European Forum for Victim–Offender Mediation and Restorative Justice

The European Forum for Victim–Offender Mediation and Restorative Justice is a non-governmental organisation set up because European victim–offender mediation projects had seldom established contacts beyond national borders. Informal contacts revealed that practitioners, academics and policy makers were looking for a more regular exchange and mutual support in developing victim–offender mediation and other restorative justice practices. This article gives an overview of the background to restorative justice and victim–offender mediation, and pays attention to the development of the Forum, its current aims, objectives and activities, and other (policy) developments at a supranational level.     

Offer and Acceptance of Apology in Victim-Offender Mediation

Past research on restorative justice (RJ) has highlighted the importance of apology for both victims and offenders and the prevalence of apology during the RJ process. The present study moves this work further by examining the nature of the apologies that are offered during victim-offender mediation, as well as the individual-, case-, and mediation-level factors that can affect the offer and acceptance of apology. In addition, we measure the implications that the offer and acceptance of apology can have on satisfaction with the mediation outcome. We conducted a content analysis of 57 records of mediations occurring between 2008 and 2010 at a UK mediation centre. Perpetrators said “I’m sorry” in over one-third of cases, and full apologies were offered in nearly one-fifth of cases. Apologies were accepted in over 90% of cases, although forgiveness was much less common. The offer of apology was most closely associated with the type of incident/offence, and number of previous mediations in a case. There was also some support for the relationship between the offer of apology and victim age, perpetrator gender, formal sanction, and the number of participants attending the mediation meeting. None of the factors studied were associated with the acceptance of apology. The offer of apology was associated with satisfaction with the mediation outcome, and in all of the cases where the apology was accepted, the victim was satisfied with the mediation outcome. The findings thus shed light on the role that apology can play in the effectiveness of RJ.