Q.
Explain the terms below in the context of legal proceedings:
a) Mediation
b) Lawyer supported mediation
c) Party-directed mediation
d) Restorative justice
e) Collaborative law
f) Conciliation
a) Mediation (see Mediation Act 2012 here)
Mediation, as used in law, is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties with concrete effects. Typically, a third party, the mediator, assists the parties to negotiate a settlement. Disputants may mediate disputes in a variety of domains, such as commercial, legal, diplomatic, workplace, community and family matters.
The term "mediation" broadly refers to any instance in which a third party helps others reach agreement. More specifically, mediation has a structure, timetable and dynamics that "ordinary" negotiation lacks. The process is private and confidential, possibly enforced by law. Participation is typically voluntary. The mediator acts as a neutral third party and facilitates rather than directs the process.
See advantages of mediation here.
b) Lawyer supported mediation
Lawyer-supported mediation is a "non-adversarial method of alternative dispute resolution (ADR) to resolves disputes, such as to settle family issues at a time of divorce or separation, including child support, custody issues and division of property.[1]
The approach sets out to integrate the contribution of family lawyer or solicitor with that of a family mediator. Users of lawyer-supported mediation first meet their respective lawyers to take advice before jointly attending mediation sessions. Legal advice is taken between sessions to inform options being discussed at mediation. Following mediation, the lawyers are called upon to review any agreement reached and to make aspects of it made legally binding. Since neither lawyer is initially being retained as a negotiator or litigator, the cost of legal advice is typically fixed for clients choosing lawyer-supported mediation.
In the event of lawyer-supported mediation failing to deliver a partial or full agreement, both parties are free to retain their respective lawyers to pursue litigation. This is not the case with collaborative law where a breakdown in roundtable negotiations requires each party to instruct a new family lawyer before proceeding with court action.[2]
c) Party-directed mediation
Party-Directed Mediation (PDM) is a mediation approach that seeks to empower each party in a dispute, enabling each party to have more direct influence upon the resolution of a conflict, by offering both means and processes for enhancing the negotiation skills of contenders. The intended prospect of party-directed mediation is to improve upon the ability and willingness of disputants to deal with subsequent differences.
The concept behind party-directed mediation, depending upon the degree to which a case lends itself, is that if and when parties wish to spend the time to acquire the skills necessary to become more effective negotiators, then they can be empowered to achieve a self-directed resolution. The concept is most effective for disputants who wish to have a greater hand in resolving their own conflicts.
Party-directed mediation is of special value where individuals or stakeholders will continue to have ongoing interactions, as well as for conflicts with significant interpersonal aspects. As people become more talented negotiators, through adoption of enhanced negotiation skills, they tend to deal more effectively with conflict.
d) Restorative justice
Restorative justice (also sometimes called reparative justice)[1] is an approach to justice that focuses on the needs of the victims and the offenders, as well as the involved community, instead of satisfying abstract legal principles or punishing the offender. Victims take an active role in the process, while offenders are encouraged to take responsibility for their actions, "to repair the harm they've done—by apologizing, returning stolen money, or community service".[2] Restorative justice involves both victim and offender and focuses on their personal needs. In addition, it provides help for the offender in order to avoid future offences. It is based on a theory of justice that considers crime and wrongdoing to be an offence against an individual or community, rather than the state.[3] Restorative justice that fosters dialogue between victim and offender shows the highest rates of victim satisfaction and offender accountability.[4]
e) Collaborative law
Collaborative law (also called collaborative practice, divorce, or family law) is a legal process enabling couples who have decided to separate or end their marriage to work with their lawyers and, on occasion, other family professionals in order to avoid the uncertain outcome of court and to achieve a settlement that best meets the specific needs of both parties and their children without the underlying threat of contested litigation. The voluntary process is initiated when the couple signs a contract (called the "participation agreement"), binding each other to the process and disqualifying their respective lawyer's right to represent either one in any future family related litigation.
The collaborative process can be used to facilitate a broad range of other family issues, including disputes between parents and the drawing up of pre and post-marital contracts. The traditional method of drawing up pre-marital contracts is oppositional, and many couples prefer to begin their married life on a better footing where documents are drawn up consensually and together.[1]
f) Conciliation
Conciliation is an alternative dispute resolution (ADR) process whereby the parties to a dispute use a conciliator, who meets with the parties separately in an attempt to resolve their differences. They do this by lowering tensions, improving communications, interpreting issues, providing technical assistance, exploring potential solutions and bringing about a negotiated settlement.
Conciliation differs from arbitration in that the conciliation process, in and of itself, has no legal standing, and the conciliator usually has no authority to seek evidence or call witnesses, usually writes no decision, and makes no award.
Conciliation differs from mediation in that the main goal is to conciliate, most of the time by seeking concessions. In mediation, the mediator tries to guide the discussion in a way that optimizes parties' needs, takes feelings into account and reframes representations.
In conciliation the parties seldom, if ever, actually face each other across the table in the presence of the conciliator.
Ref:
Wikipedia under 'Alternative Dispute Resolution'.
http://en.wikipedia.org/wiki/Alternative_dispute_resolution