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A legal framework for mediation. (Legislation on mediation: The end of the beginning or the beginning of the end?)

Van Garsse, Leo
June 4, 2015

Source: (2004) Papers presented at the Third Conference of the European Forum for Victim-Offender Mediation and Restorative Justice, ‘Restorative Justice in Europe: Where are we heading?’, Budapest, Hungary, 14-16 October. Downloaded 22 September 2005.

In his 1996 sketch of the origins of restorative justice in the United Kingdom, Tony Marshall emphasised the
major role played by field workers. They were guided not so much by new theoretical insight, but rather by the
need to find concrete solutions to the problems they encounter in everyday practice. Looking back on the
history of mediation in Belgium, I am able to confirm this vision for the most part.
This pragmatic arrangement gave rise to diversity in the practice of mediation in the domain of criminal justice.
In a small country like Belgium, if we limit ourselves to only mediation, we count at present four mutually
independent mediation programmes, each subsidised by a different governmental body.
Nevertheless, the situation in the field, at least in Belgium, does not correspond to the chaotic image that some
would like to depict.
There is a broad consensus among field workers concerning a definition of mediation as the systematic
guidance by a neutral third party of a voluntary and confidential process of communication between the parties
directly involved with the offence. From this follows the relative unpredictability of the mediation efforts with
respect to duration, content and final result as well as, above all, the subjective, intimate and always unique
character of the intended process. These points of departure by definition place mediation in the role of
antagonist with respect to traditional legal proceedings whose qualities include objectivity, transparency,
predictability and comparability.
Thus, the desire to develop offender-victim mediation further is inevitably faced with the difficult question
concerning whether or not this should be done within a legal framework. (excerpt)


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