Part II of this article addresses the question of how evaluative mediation may be used in practice. What guidelines are available to a mediator who considers crossing the line between facilitation and evaluation? |
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Mediation in Greece: The ‘Formal’ and Various ‘Informal’ Types, Off- and OnlineThe Architecture of Mediation in Greece – Shifting towards a Culture That Values Consensus-Building |
Journal | Corporate Mediation Journal, Issue 2 2021 |
Keywords | mediation, Greece, special forms, mandatory, online, informal types |
Authors | Dimitris Emvalomenos |
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Journal | Corporate Mediation Journal, Issue 2 2021 |
Keywords | evaluative mediation, deployment, hybrids |
Authors | Martin Brink |
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Journal | East European Yearbook on Human Rights, Issue 1 2021 |
Authors | Matthias C. Kettemann and Martin Fertmann |
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This study explores the spread of disinformation relating to the Covid-19 pandemic on the internet, dubbed by some as the pandemic’s accompanying “infodemic”, and the societal reactions to this development across different countries and platforms. The study’s focus is on the role of states and platforms in combatting online disinformation. |
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Journal | East European Yearbook on Human Rights, Issue 1 2021 |
Authors | Martin Fertmann and Matthias C. Kettemann |
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Terms-of-service based actions against political and state actors as both key subjects and objects of political opinion formation have become a focal point of the ongoing debates over who should set and enforce the rules for speech on online platforms. |
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Sustainability in Global Supply Chains Under the CISG |
Journal | European Journal of Law Reform, Issue 3 2021 |
Keywords | CISG, sustainability, supply chains, UN Global Compact, Codes of Conduct, conformity of the goods |
Authors | Ingeborg Schwenzer and Edgardo Muñoz |
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In this article, the authors assert that the United Nations Convention for the International Sale of Goods (CISG) can contribute to tackling gaps in statutory legislation and defective business conduct that have been associated with unsustainable trade in Global Supply Chains (GSCs). The authors provide evidence that the CISG contains rules enabling a general legal framework for establishing uniform sustainable standards for goods concerning suppliers, sellers and buyers located in different countries. For instance, the CISG provisions on contract formation ease the incorporation of joint codes of conduct for sustainable trade in GSCs. In addition, the contracting parties’ circumstances and current trade usages are now more relevant to determine what constitutes conformity of the goods under the contract and the default warranties in Article 35 CISG. On the level of remedies, the authors show that best-efforts provisions, possibly included in a code of conduct or inferred from standards applicable to the goods, may redefine the notion of impediment in Article 79 CISG, which could lead to exoneration of liability for the seller. They also demonstrate why fundamental breach and the calculation of damages are at the centre of the discussion regarding the remedies for breach of an obligation to deliver sustainable goods. |
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Restorative justice practice in forensic mental health settings: bridging the gap |
Journal | The International Journal of Restorative Justice, Issue Online First 2021 |
Keywords | restorative justice in mental health, evidence-based practice, institutional settings, victims, ethics |
Authors | Gerard Drennan and Fin Swanepoel |
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The ‘clinic’ has developed sophisticated systems for responding to the challenge of serious mental health conditions. Mental health services combine hierarchical decision-making processes, with clear medical authority, with interventions that are required to be evidence-based to the highest standard. This is a system in which ethical, defensible practice is imperative to protect the public and to protect practitioners from legal liability in the event of adverse outcomes. Restorative justice interventions are powerful ‘medicine’. At their best, they change lives. However, the evidence base for formal restorative justice interventions when ‘administered’ to people with severe mental health difficulties is almost non-existent. It is into this relative vacuum of empirical support that initial steps are being taken to formalise access to restorative justice for mental health populations. This article will consider the challenges for applications of restorative justice in mental health settings and how the gap between the principle of equality of access and actual practice could be conceptualised and bridged. Recommendations include a rigorous commitment to meeting the needs of victims; a focus on the mental health patient’s capacity to consent rather than the capacity to benefit; practice-based evidence development and the inclusion of restorative justice awareness in all mental health practitioner training. |
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Journal | Corporate Mediation Journal, Issue 1 2021 |
Keywords | core values, evaluative mediation, method |
Authors | Martin Brink |
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The phenomenon of evaluative mediation has invited much debate among both scholars and mediators. At the heart of that debate is the question of a definition of mediation. Considering all prevailing schools of mediation, the conclusion was that doctrine will not be able to prevent that mediation will continue to occur in all kinds of shapes and forms. |
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When No One Wants to Mediate, Call the Mediator!A Pre-COVID-19 Case Study Takes on New Significance in a Post-pandemic World |
Journal | Corporate Mediation Journal, Issue 1 2021 |
Keywords | reflective practice, pre-COVID-19, conflict navigator, enhanced collective perspective, board members |
Authors | Anna Doyle |
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Interest Representation in BelgiumMapping the Size and Diversity of an Interest Group Population in a Multi-layered Neo-corporatist Polity |
Journal | Politics of the Low Countries, Issue 1 2021 |
Keywords | interest groups, advocacy, access, advisory councils, media attention |
Authors | Evelien Willems, Jan Beyers and Frederik Heylen |
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This article assesses the size and diversity of Belgium’s interest group population by triangulating four data sources. Combining various sources allows us to describe which societal interests get mobilised, which interest organisations become politically active and who gains access to the policy process and obtains news media attention. Unique about the project is the systematic data collection, enabling us to compare interest representation at the national, Flemish and Francophone-Walloon government levels. We find that: (1) the national government level remains an important venue for interest groups, despite the continuous transfer of competences to the subnational and European levels, (2) neo-corporatist mobilisation patterns are a persistent feature of interest representation, despite substantial interest group diversity and (3) interest mobilisation substantially varies across government levels and political-administrative arenas. |
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Comments and Content from Virtual International Online Dispute Resolution Forum1-2 March 2021, Hosted by the National Center for Technology and Dispute Resolution (NCTDR) |
Journal | International Journal of Online Dispute Resolution, Issue 1 2021 |
Authors | David Allen Larson, Noam Ebner, Jan Martinez e.a. |
Abstract |
For the past 20 years, NCTDR has hosted a series of ODR Forums in locations around the world. For 2021, the Forum was held virtually, with live presentation over a web video platform, and recorded presentations available to participants. A full recording of the sessions can be found through http://odr.info/2021-virtual-odr-forum-now-live/. The following items are narrative notes from some of the presentations: |
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Journal | International Journal of Online Dispute Resolution, Issue 1 2021 |
Keywords | access to justice, digital divide, Artificial Intelligence, algorithms, Online Dispute Resolution |
Authors | Daniel Rainey and Larry Bridgesmith |
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This article addresses three issues related to online dispute resolution (ODR) that offer promise, and may carry risks for those who develop, provide, and use technology to address disputes and confects. The authors offer some principles to guide the use of technology, and some predictions about the future of ODR. |
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Restorative justice conferencing in Australia and New ZealandApplication and potential in an environmental and Aboriginal cultural heritage protection context |
Journal | The International Journal of Restorative Justice, Issue 1 2021 |
Keywords | restorative justice conferencing, environmental offending, Aboriginal cultural heritage offending, connection to the environment |
Authors | Mark Hamilton |
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Indigenous people may suffer harm when the environment, sacred places and sacred objects are destroyed or damaged. Restorative justice conferencing, a facilitated face-to-face dialogue involving victims, offenders, and pertinent stakeholders has the potential to repair that harm. This article explores the use of conferencing in this context with case law examples from New Zealand and New South Wales, Australia. As will be discussed, the lack of legislative support for conferencing in the Land and Environment Court of New South Wales means it is doubtful that such conferencing will develop past its current embryonic state. As well as using restorative justice conferencing to repair harm from past criminality, this article suggests that further research should explore the use of restorative justice to resolve present conflict, and prevent future conflict, where there is a disconnect between non-Indigenous use of the environment and Indigenous culture embedded in the environment. |
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Why an atmosphere of transhumanism undermines green restorative justice concepts and tenets |
Journal | The International Journal of Restorative Justice, Issue 1 2021 |
Keywords | green restorative justice, transhumanism, technological progress, animals, bioethics |
Authors | Gema Varona |
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Arising from the notions of green criminology and green victimology, green restorative justice can be defined as a restorative justice focused on environmental harm. Harm in this case is understood as criminalised and non-criminalised, and as individual and collective behaviours damaging the ecosystems and the existence of human and non-human beings. Impacts of environmental harm affect health, economic, social and cultural dimensions, and will be experienced in the short, medium and long term. Within this framework, after linking restorative justice to green criminology and green victimology, I will argue that the current weight of the cultural and social movement of transhumanism constitutes an obstacle to the development of restorative justice in this field. The reason is that it fosters individual narcissism, together with the idea of an absence of limits in what is considered technological progress. This progress is seen as inevitable and good per se, and promotes the perception of a lack of social and moral accountability. This reasoning will lead to some final reflections on how restorative justice has to constantly reinvent itself in order to keep creating a critical and inclusive justice of ‘otherness’. By doing so, restorative justice must join the current interdisciplinary conversation on biopolitics and bioethics. |
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Journal | The International Journal of Restorative Justice, Issue 1 2021 |
Keywords | restorative justice, restorative practice, environmental justice, environmental regulation |
Authors | Miranda Forsyth, Deborah Cleland, Felicity Tepper e.a. |
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The challenges of developing meaningful environmental regulation to protect communities and the environment have never been greater. Environmental regulators are regularly criticised for failing to act hard and consistently, in turn leading to demands for harsher punishments and more rigorous enforcement. Whilst acknowledging the need for strong enforcement to address wantonly destructive practices threatening communities and ecosystems, we argue that restorative approaches have an important role. This article explores a future agenda for environmental restorative justice through (1) situating it within existing scholarly and practice-based environmental regulation traditions; (2) identifying key elements and (3) raising particular theoretical and practical challenges. Overall, our vision for environmental restorative justice is that its practices can permeate the entire regulatory spectrum, going far beyond restorative justice conferences within enforcement proceedings. We see it as a shared and inclusive vision that seeks to integrate, hybridise and build broader ownership for environmental restorative justice throughout existing regulatory practices and institutions, rather than creating parallel structures or paradigms. |
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A maximalist approach of restorative justice to address environmental harms and crimesAnalysing the Brumadinho dam collapse in Brazil |
Journal | The International Journal of Restorative Justice, Issue 1 2021 |
Keywords | environmental law, maximalist approach, restorative justice principles and concepts, decision-making process, sanctioning rules |
Authors | Carlos Frederico Da Silva |
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In this article, the author analyses court cases arising from the rupture of the mining tailings dam in the city of Brumadinho, Brazil, on 25 January 2019. In a civil lawsuit context, legal professionals recognised damage to people and the environment during hearings involving a judge, prosecutors, lawyers and corporate representatives. The centrality of the victims’ interests and the need for remedial measures prevailed in the agreements signed mainly to provide urgent relief and restore damage to the ecosystem. In the criminal lawsuit dealing with the same facts, there have not yet been acquittals, non-prosecution agreements or convictions. By employing a socio-legal approach to contrast different types of legal reasoning, this article explores the possibilities of restorative responses in civil proceedings and explains the lack of them in criminal justice. In highlighting some characteristics of punishment theories that hinder a possible restorative justice approach, the article offers a critique of a penal system mostly linked to argumentative competition rather than persuasive conflict resolution. The author argues that jurisprudence should address transdisciplinary concepts, such as responsive regulation, restorative efforts, proportionality and individualisation of punishment. The discussion can shed light on the decision-making process to allow environmental restorative justice responses to crimes. |
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Environmental justice movements and restorative justice |
Journal | The International Journal of Restorative Justice, Issue 1 2021 |
Keywords | restorative justice, environmental conflicts, environmental justice movements |
Authors | Angèle Minguet |
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The worldwide existing environmental conflicts have also given rise to worldwide environmental justice movements. Using a diversity of tools that range from petitions to legal actions, what such movements have often shown is that environmental conflicts rarely find a satisfactory resolution through criminal judicial avenues. Given this reality, the important question then is whether there is a place within environmental justice movements for a restorative justice approach, which would lead to the reparation or restoration of the environment and involve the offenders, the victims and other interested parties in the conflict transformation process. Based on the analysis of environmental conflicts collected by the Environmental Justice Organizations, Liabilities and Trade project (EJOLT), and more specifically on two emblematic environmental conflict cases in Nigeria and in Ecuador, the argument will be made that it is essentially due to the characteristics of environmental conflicts, and due to the fact that they almost never find a satisfactory resolution through traditional judicial avenues, that environmental justice movements ask for a restorative approach, and that restorative justice is a sine qua non condition to truly repair environmental injustices, as long as the worldview and nature of the victims is taken into consideration. |