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Military mediation as military justice? Conjectures on repairing unit cohesion in the wake of relational misconduct.

Maurer, Dan
June 4, 2015

Source: (2013) The Ohjo State Journal on Dispute Resolution. 28(2):419-490.

The use of a neutral party to intercede between two or more disputing
parties with the goal of facilitating a mutually-acceptable resolution,
settlement, or agreement-i.e., mediation-has never been critically
evaluated as a possible procedure within the field of military criminal
justice. This article explores whether mediation may march alongside
orthodox criminal procedure-as it does in civilian jurisdictions-without
undervaluing traditional philosophies that guide military justice, and without
undermining traditional sources of prosecutorial authority: military
commanders. Current military doctrine (both operational and legal)
supports non-traditionalp roblem-solving systems, of which mediation should
be considered a part. Relation-based misconduct provides the most
appropriate candidate of crime particularly ripe for mediation within military units, especially when framed against a genuine and historicallyjustifiable
command interest in preserving or repairing “unit cohesion.”
While pragmatic and legal counter-arguments against mediation are
reasonably sound, there is nothing intrinsic to the military scheme ofjustice
that makes them any more persuasive. Rather, when translated into a
military culture, these criticisms and concerns reflect the same underlying
tensions between traditionalp rosecutoriala uthority, efficiency, victim rights,
and preventive law. Ultimately, whether in the form of a system that directly
employs mediation parallel to orthodox justice, or in the form of a new skill
set for military leaders employed indirectly as part of their routine
leadership functions, mediation need not be considered alien nor an
anathema to current military justice as exercised by military commanders. (author’s abstract)


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