Français - English - Español

Mediation: justice reconsidered




Today the role of mediation is ever increasing. This alternative method of settling disputes has developed in all spheres of social life, especially in Anglo-Saxon countries and more recently in France. This is not a new phenomenon, but rather a rediscovery at a moment when a serious crisis is affecting in particular the judicial systems, and more generally the system by which society is regulated. By mediation we mean "a mostly formal process by which a neutral third party attempts, by organising exchanges between conflicting parties, to enable them to confront each other’s points of view and with his help find a solution to their dispute". We are facing in France a lack of analysis and evaluation of experiences in the field of mediation. Jean-Pierre Bonafé﷓Schmitt, researcher on and practitioner of mediation, presents the results of his research together with comments collected in the framework of legal workshops in Lyon and in the Minguettes district of Vénissieux. He asks whether these experiences, which convey an ideology, could possibly serve to build up a social movement. An inventory of the present situation supplemented by Anglo-Saxon experiences points to the intricacy of the movement and to the very wide variety of practices understood as a form of response to the crisis affecting the system by which society is regulated. This crisis can definitely not be solved by an increase in the number of magistrates, policemen or social workers. Thus Mr. Bonafé-Schmitt presents mediation in the work place, "avoiding justice"; in the public sector, "the passage from command to negotiation"; in the field of consumer protection, "an alternative justice"; judicial mediation and "conciliation/compensation" as a form of "delegated justice"; family mediation and finally community or social mediation, the key point of the author’s thinking, the best exemple being the legal workshops ("boutiques de droit") in France. There are various forms of mediation, such as professional and community mediation. The large majority of existing experiences are the result of a determined state policy, while a limited number of them, truly innovative, derive from autonomous initiatives within society. The latter are designed to involve the conflicting parties in the settlement of their disputes, thereby promoting the shift from "delegated justice" to "self-justice". This new means of regulation highlights a qualificative change of paradigm in the settlement of conflicts, substituting a method based on consensus for a method based on conflict. The collective system replaces the culture of winner versus loser. According to the author, the conflictive model is a descendant of liberal society, based on competition and conflicting interests. But this model now no longer corresponds to the evolution of our societies after the social policies of the Welfare State. Jean﷓Pierre Bonafé-Schmitt takes due account of the criticism and questioning in respect of these crucial issues. The method of consensus, also called "ideology of harmony" by other theorists, is strongly criticised by American professionals. According to them, this ideology denies conflict, not to avoid its causes but their expression. It transforms a conflict into problems of communication, relationships or affection. In this pattern, where everyone shares the same goals and values, the pacification of the people is sought by extending social control. Doesn’t mediation help develop social control, aiming for the standardisation of behaviour and social pacification? Thus the result is the opposite of what is being sought: the establishment of mediation services superficially rooted in neighbourhoods may threaten to disorganise the existing informal patterns of regulation, and even contribute to hastening the deterioration of the social tissue. This leads us to examine the "neutrality" of values promoted by mediators, since they are often those of the dominant culture, and the problem of the impartiality of the mediators themselves. Mediation is a recent phenomenon and it is as yet difficult to say what is at stake: its strategical use, the creation of a new profession - the mediator.


calle
calle
Mots-cl�s Contrôle social - Droit - Etat - Justice - Justice alternative - Justice formelle - Justice informelle - Réflexion - Régulation sociale - Résolution extra-judiciaire des conflits -

calle

Suivre la vie du site RSS 2.0 | Site réalisé avec le soutien de la Fondation de France et de la Fondation Charles Léopold Mayer pour le Progrès de l'Homme | Juristes-Solidarités participe à la Coredem | Action soutenue par la région Ile-de-France