The Mediator

In this first blog piece of the series “Questions we don’t dare to ask”, Siri Kemény puts forward some critical reflections about the mediator. She asks what skills, knowledge and competencies are ideal for a mediator. Moreover, it seeks to reflect on whether restorative justice is moving towards a new protected profession, with a monopolised right to mediate. The texts shows a way forward but leaves the final conclusions to be developed further. Siri Kemény has worked with restorative justice for more than three decades in various positions, among others as the director of the National Mediation Service (Konfliktrådet) in Norway, and as the Chair for the European Forum for Restorative Justice. 

This is the first piece of a series of articles that a take a critical look at the state-of-the-art in restorative justice.  The articles will be collected and published in the 3rd issue of this year's Newsletters, due in autumn 2021. This is the introduction of the series by the Claudia Christen-Schneider and Heidi Jokinen.

For many readers of The Restorative Blog, restorative justice has indeed proven its strengths. We believe in the many possibilities that this way of responding to harm offers. We are prepared to insist on the right of restorative justice to be recognised as a fruitful practice we may even consider it more fruitful than some other methods of conflict resolution. However, such insistence carries a risk.

When we are too sure of something, it is easy to become blind to its weaknesses. We start to insist on certain things that seem fundamental to us and may forget or ignore the fact that restorative justice, like any other practice, also needs innovation and development. It is important to be humble enough to allow critical reflection, to be open to constructive criticism and to respond to it with an open mind.

What worked in the past may not work today - and further changes may well be needed tomorrow to meet the needs of those we serve. We may have to let go of certain things and "kill our darlings". An open attitude is needed to consider approaches or methods that may seem very new and unusual but could serve to make restorative justice accessible to more people and also render it flexible and responsive to the needs of those affected by harm.

To have a critical and self-reflective eye courage is needed, and we need to step out of our comfort zone. The goal is for restorative justice to serve the parties rather than the practitioners, and so we need to ask ourselves what changes might be needed to adapt restorative services to the needs and challenges of the times in which we live, and to consider what traditions might need to be discarded as they serve us rather than the parties. Are we open to allowing and even welcoming change in our practice if it ultimately benefits the people we serve, or do we prefer to stick to our familiar practices because they suit us better and carry less risk?

This series aims to venture a constructive critical reflection on the current practice of restorative justice and asks experts to offer their thoughts and insights from very different perspectives. As readers, we may come from a very different background and not agree with everything. Nevertheless, we hope that the texts will inspire readers to reflect and encourage them to ask critical questions themselves and to be open to new ideas. 

There are variations in how restorative justice is organised and practised all over Europe and beyond. A central point is whether the mediator is a professional, a lay person or a volunteer —the difference between a lay person and a volunteer being that the former does receive a small fee, while the latter does not receive any payment at all. In Norway, where I come from, the mediation service has lay mediators. This is even put down by law. In the Nordic countries the mediation services have some similarities, particularly the Finnish system coming close to the Norwegian. Also Denmark looked to Norway when they established their mediation system. Nevertheless, I hope that my reflections on the mediator in restorative justice will give some food for thought no matter which country the reader comes from and whether the mediator is professional or lay. 

For the sake of convenience, the notion of ‘mediator’ as it is applied here also includes the facilitator in restorative justice processes like for instance circles and conferences. 

What kind of a person should the mediator be?  What skills, knowledge and competencies are ideal for being a mediator? And what is the extra that makes a mediator really good or excellent? This ‘extra’ is of a kind that is hard, if not impossible, to express in words. I will give you an example to illustrate. You know when a teacher is really good, but it can be hard to pinpoint just what makes her that good. Yes, it can be because she is good at seeing each pupil, but why is just she good at it, but not her colleague? I believe it is something about a personal touch, a talent that has been nurtured and developed. Then comes the big question: how is it possible to take the agreed restorative justice values and principles that set the standards for the restorative justice process and transfer the standards properly into what we should expect from the skills and competencies of a restorative justice mediator? What kind of a mediator should we aim for, to support the fulfilment of the restorative justice values in the restorative justice process? Important: can it be done also to preserve and inspire the out-of-the-box creative new thinking that has characterised the field? It is almost a law of nature that the freshness that lies in something new will vanish or  fade as time goes by. I will contend that one of the hallmarks of the restorative justice field has been, and should continue to be, the ability and will to preserve the urge to new thinking so as to raise the quality and develop and refine restorative justice solutions. 

All these different questions have been more or less on my mind during the three decades I was actively working with restorative justice. Some are still there, but a whole lot has changed, and I see some things differently now. This change I believe must be understood in light of the changes in the role and position of restorative justice in the criminal justice system, but maybe equally as much as a result of how the world has changed.

My reflections are of course mainly influenced by how restorative justice emerged and developed in Norway. The system with lay mediators stems from Nils Christie’s critique of the justice system, claiming that the legal experts, the judiciary, stole the conflicts from the people. I will add that in Norway we have a tradition of involving citizens in different societal functions, which means that this way of establishing restorative justice harmonised with a well-known cultural tradition. Such a kind of involvement of the citizens can have the function of societal glue, but it should not be underestimated that it is also assumed to be cost-effective, which is in the interest of the government.

In the early days, the cases that were handed over for mediation were simple. A youngster that had been caught for petty theft or vandalism could very well be brought together with his victim by a lay mediator that had participated in a short training on mediation. But as the referred cases moved in an ever more serious direction, like for instance violence of all kinds in intimate relationships, it became a worry how to secure proper care of the victim and the offender, how to secure a proper restorative justice process. I will argue that a precondition for mediating in such cases is that the mediator has certain qualities and qualifications that can be achieved only exceptionally by lay mediators. Two important reasons for this are lack of time for proper training and lack of sufficient mediation experience. According to me, mediating in cases pertaining to violence of any sort, presupposes a deeper understanding of the human mind and social interplay. A certain awareness of one’s own psychic or emotional experiences or traumas is also important, so as not to let them influence the process between the parties. The mediator must of course have a general understanding of the phenomenon of violence, its dynamics, its effects and possible risks in a restorative justice process. Mediators in serious cases, where personal integrity has been offended, must be properly trained to be able to contain the process between the victim and the offender.

The framework conditions for the lay mediator system necessarily differ from a system with full time mediators on certain points. It is a pivotal question if there is sufficient space and time for proper and sufficient training, mediation practice and supervision within this framework, as it is inherent in the lay model that the mediators only have restricted time to spend on mediation. This means that the training, mentoring and supervision also will have to be restricted. As for supervision, I will argue that it happens too seldom, and it is mostly done by full time advisers who often do not have substantial mediation practice, because it is defined by law that mediation must be done by lay mediators that are appointed for the task. If an adviser wants to mediate extensively, it has to be done on top of the normal job as an adviser, and it will not be counted as working hours, but be paid with a small fee, like the normal lay mediators. This small fee is also a problem that the mediators have been pointing out for years. The smallness of the fee makes them feel not properly valued, that society does not appreciate the contribution they make as citizens.  

There are of course also strong points for a lay system. I find it an asset that mediators can be recruited amongst people from all walks of life. It is an expression of a sound democratic value, and lay persons or volunteers can contribute to spreading the understanding of the restorative approach in the community and in society. It is not necessary to be a social worker, a psychologist, a lawyer or a teacher to become a good mediator.  To have a professional background as mentioned is no guarantee to become a good mediator, and it is an enrichment to have mediators with widely different life and occupational experiences amongst them.

What is needed, then, to become a good mediator? Can it be learnt? The answer is of course ‘yes.’ But as mentioned, talent helps. And let us also admit that some people are not suited for the task. Like with the teacher I mentioned, some mediators are brilliant, some are just good, or tolerable. But what all mediators have in common is that restorative justice — mediation and facilitation — must be learnt, even if you have a natural talent for it. And to become good, it must be practised extensively. An inherent part of the practice should be regular critical reflection upon practice, with colleagues, with a supervisor.  I see mediation partly as a craft, partly as an art. During a course of training for becoming a mediator, the candidate should be mentored or supervised by a senior mediator who is qualified also as supervisor. But also experienced mediators should have access to supervision on a regular basis, to counteract ‘blindness’, so as not to be stuck in nonfunctional patterns. This will contribute to keeping the new thinking alive. 

Why do we in Norway make such an effort to adapt the lay system also to fit the handling of demanding criminal cases with highly vulnerable parties?  

People within the mediation system mostly believe in the model based on lay mediators, and for good reasons. It must be admitted that it has done the job fairly well until the demanding violence cases landed on the lay mediator’s plate. But I fear that the lay system with its present restrictions will not be up to facing today’s challenges in applying restorative justice with serious cases like for instance sexual and other intimate violence, serious discrimination or racism, not to speak of extreme radicalisation, just to mention some. I think also the general understanding of cost-effectiveness is, as always, a winning argument. But I am not convinced that a change of the mediator necessarily will be more expensive than the present lay model.

Looking back, I must say that Nils Christie was a blessing for the Mediation Service to come into existence. He was an important corrective to more aspects of the justice system. But on the other hand, I will contend that after some decades it would have been right also to have a critical look at the ideology that formed the base of the Mediation Service. 

If I am right or not in my assumption that the framework conditions of the lay model are a hindrance to an optimal restorative mediation process, I nevertheless find it important to discuss if common sense and restorative justice values and principles are sufficient for delivering satisfying restorative justice services. In addition, I think it would be appropriate and interesting to look at it also in the light of conspiracy theories becoming mainstream, and thus having become part of ‘common sense’. Can common sense still be trusted? 

photo: Nils Chistie in 2012 at the EFRJ's International Conference in Helsinki

What can be a satisfying answer to the demands that restorative justice in general and the mediators in particular are facing? Can it be done without moving towards a new, protected, profession, with a monopolised right to mediate? And can the tendency to instrumentalisation of the restorative process be counteracted, protecting the ‘soul’ of restorative justice? I do hope so, and I hope that the European Forum for Restorative Justice will take on the task and offer a forum for discussing the mediator with all her facets.

I will leave the reader with some preliminary conclusions, preliminary because they are meant to be discussed further.

• The recruitment of mediators must be broad, to secure a wide range of knowledge within the group of mediators.
• The mediator must have restorative justice mediation as a main occupation. This will ensure that the mediator will have sufficient time for practising extensively, for training, supervision and critical reflection upon the mediation practice.
• Critical reflection as part of the mediation practice will contribute to keeping a fresh look at the practice and thus counteract that the mediator becomes set in her ways.
• Proper and sufficient training to become a mediator of quality must be secured. No shortcuts. 
• Sufficient and qualified mentoring and supervision must be part of both the training and the follow-up of the mediators. Supervisors must be experienced and active mediators and must also have the necessary qualifications for being a supervisor.
• Training, critical reflection on the mediation practice, must aim at preserving the ability to out-of-the-box thinking and also contribute to saving the soul of restorative justice. 
  • ‘The soul of restorative justice’ can have more connotations. For fun (or maybe not only), why not discuss also this? Does it mean that all the restorative justice values and principles are honoured, or is there something more to it?  Can sincerity and candour be kept alive when practising restorative justice (the opposite of giving in to instrumentalisation)? Preserving an open mind? What would ‘the soul of restorative justice’ mean to policy makers and to researchers, if anything? 
• Idea: training in emphatic exploration of the other’s lookout point — meaning to strive for understanding and respect from within — as part of the training for the mediators. The idea is inspired from religious science, and it should be explored if it can be a useful aspect to include for the mediators as mental ballast in facilitating the reciprocal understanding between parties.

Thanks go to my former colleague and good friend Helene Støversten for constructive comments and questions during the writing process. The responsibility for the content is nevertheless mine, and mine alone.

Published on 3 August 2021.