ADR, Mediation and Restorative Justice Roundup

It’s been a while since I blogged.

It was the best of times, it was the worst of times[i]

Best (Well…in a manner of speaking)

2021 has been a strange year. A bit like the classic Tale of Two Cities. It was the Best of Times, It was the Worst of Times.

In Fact, I think my last blog happened in 2020. 2020 was the ushering in of a strange new life for us all on many levels. But it also comprised a confluence of events (Disaster, 4^th IR, Rule 61A and the RAF shift toward mediation, amongst others) that highlighted the utility, resilience and significance of ADR processes, specifically mediation. Wake up suddenly and you’re in…uh…thrust into a world of online work. In our case, online dispute resolution and mediation and online training in dispute resolution and mediation.[ii]

For the most part, I have felt this to be exceptionally beneficial to ADR and mediation. As a platform upon which, I have long thought, we can better advance ideals in better access to justice, I am seeing much of that capacity-building manifest before my very (screen locked) eyes.

Naturally I am alive to the obstacles faced by many with insufficient access to connectivity and devices. However, I am absolutely certain that these challenges are more easily and practicably overcome than the spatial injustice, economic challenges and public transport issues that complicate access to our courts.

The Hague Institute for Innovation in Law talks about online courts and that establishing online courts alone is insufficient for what may lie ahead. Our focus needs to shift significantly toward informal processes like mediation.

I had written previously about how Ken Cloke had so profoundly seemed to see up ahead in his book, ‘Politics, Dialogue and the Evolution of Democracy’ wherein he writes an actual Chapter on pandemic (back in actual 2018) and he talks about the need for the language of co-operation, collaboration and bridgebuilding as he predicts that the power-based problem -solving structures (police, military and courts) will start to crumble.[iii]

A lot of this has been good for those of us who have advocated for ADR, Mediation and Restorative justice and we have seen some magnificent gains for which we remain in awe and deeply grateful. But we do remain reverend in the face of the enormity of the work that lies ahead.

Worst (in a manner of speaking)

2021 has been a little weird. And scary. A little more weird and scary than 2020 was. Well…for me.

The July unrest in Durban had a particular impact on me. Leaving aside the enormous impact for others (for the moment) and naturally for all of us as a society. I have an ability to look up ahead with hope and doggedly refuse the idea that things may just fall apart completely. In July my ability near abandoned me. I have been deeply saddened by the events of the past number of months. I have previously written about how I feel that the state capture commission is an exceptionally expensive exercise in public square spectacle allowing us to point and say: ‘Look, the evil is over there. None of it is within me’ rather than to do the self-reflection that we all need to do. I have also written previously about my view on the constitutional anomalies inherent within the commission and that if one understands onus, burden of proof and elements of crime and how complicated this all is in prosecuting commercial crime, I think the commission has very low potential to manifest actual successful prosecutions and convictions.[iv] All this I believe to be complicated further by what I regard as constitutional anomalies and deficiencies in the process. Of course, I must be honest, I am hell-bent on a justice that restores rather than seeking to punish and so naturally I am less than joyous about a process that, to my mind, nurtures within us feelings of bloodlust and revenge as we see the ‘bombsquad’ unleased on whomever we have been made to believe are the ‘bad guys’.

You can check out previous blogs (referenced in the endnotes) that further expound my views on this and what I think a restorationist approach may be.

National Strategic Plan on Gender Based Violence and Femicide: Pillar 3

I have been appointed one of the ambassadors in what is a state-side and civil society partnership attempt to address the scourge of GBVF in our country. Having worked extensively to address sexual violence and domestic violence, initially in practice as an attorney and for the past decade and a half via victim centric restorative justice and ADR Methods, I am deeply grateful for this platform to advocate for something that I believe so whole-heartedly in.

Pillar 3 has to do with ADR and Restorative Justice. Through her tireless work, Mpho Mdingi of ADR Network SA Limpopo has lead the way to ensure that ADR Network SA makes its contribution in this project helping to organize and develop the 100 days of Divorce Mediation and 120 Days of Divorce Mediation Projects.

ADR Network SA has contributed various forms of training to the project for its various stakeholders including the DOJ, the UNODC and the LPC.

Two weeks ago I presented a webinar on Integrative Justice: A holistic Problem-Solving approach to Justice. You can access the text of it here. Integrative Justice: Presentation for National Strategic Plan on GBVF (Pillar 3) | ADR Network SA (adr-networksa.co.za)

I was also interviewed by the UNODC for their publication on women in conflict the law in view of my work in Restorative Justice.

This Thursday at 2pm I will be presenting, along with Gabi McKellar on Restorative Justice for Women and Children. Please attend if you can.

The details are as follows:

Herewith the link for the Pillar 3 webinar on 30 September 2021 14h00 – 15h30

Restorative justice for women and children

Moderators: Mpho Kgabi & Tania  Buitendag

Speakers: Sheena Jonker & Gabriella McKellar

Please forward the invite to all for distribution

CLICK HERE TO JOIN

Microsoft Teams meeting

Join on your computer or mobile app

Click here to join the meeting

Covid Injury in the Workplace and Vaccine Mandates: The Role of ADR

Please join us for this mediated discussion this Thursday at 6pm.

To RSVP and for zoom access details please email training@adr-networksa.co.za.

 

 

Mediation, Arbitration and Restorative Justice Training

Check out our programs and join us in the shift from the adversarial to the non-adversarial. From the Punitive to the Restorative.

Five Day Mediation Training: Training – Five Day Mediation Training | ADR Network SA (adr-networksa.co.za)

Wednesday Night School Series: Training – Wednesday School Series | ADR Network SA (adr-networksa.co.za)

Short Programs in various areas of ADR: Training – Online Short Training Programmes | ADR Network SA (adr-networksa.co.za)

One year Distance Learning programs in ADR and Restorative Justice: Training – Distance Learning Programs | ADR Network SA (adr-networksa.co.za)

Ongoing Professional Development for CPD: Training – Ongoing Professional Development for Mediators and Arbitrators | ADR Network SA (adr-networksa.co.za)

Panel Membership and Accreditation

Join our panel for annual accreditation and other benefits: Accreditation | ADR Network SA (adr-networksa.co.za) Accreditation | ADR Network SA (adr-networksa.co.za)

Provincial Structures

We have provincial structures in Limpopo, Gauteng and very soon in the Eastern Cape.

Limpopo, lead by Mpho Mdingi is opening new offices with the capacity for live local training, in person mediation and is putting a lot of energy behind stimulating court annexed mediation and Rule 41A. Get in touch with her at mpho@adr-networksa.co.za.

In peace,

Sheena Jonker

sheena@adr-networksa.co.za

[i] With thanks and apologies to Charles Dickens

[ii] For previous blogs: ALTERNATIVE DISPUTE RESOLUTION IN THE TIME OF COVID 19 | ADR Network SA (adr-networksa.co.za) and ADR, HUMAN RIGHTS AND COVID-19 | ADR Network SA (adr-networksa.co.za) and LOCKDOWN-RELATED DISPUTES AND THE ROLE OF ADR | ADR Network SA (adr-networksa.co.za)

[iii] Kenneth Cloke, ‘Politics, Dialogue and the Evolution of Democracy’

[iv] http://www.adr-networksa.co.za/restorative-justice-state-capture-and-corruption/ and

http://www.adr-networksa.co.za/dudu-myeni/

 

INTEGRATIVE JUSTICE: Presentation for National Strategic Plan on GBVF (Pillar 3)

A FUNDAMENTAL SHIFT: TOUGH MINDS, TENDER HEARTS

In ancient times the lawyer was the healer in society. In the same way as the physician was the healer of the body, the lawyer was looked to in order to weave back together the unravelled threads of the tapestry of society. This was essentially the work of restoration of relationships that had been breached, injured or broken.

In modern times, the practice of law and the justice systems that it serves, has tended to become more and more rules based. And as with many professions and structures, often substance gives way to form. And so we may find a heavy bent on procedural justice or it’s pursuit and sometimes at the expense of substantive justice. Form over content, if you will.

The entire universe functions according to law. Our bodies function according to certain laws. There are laws that govern how healthy cells function. At a human physical level, we are at our healthiest when there is a head, heart balance. Or more comprehensively a head, heart, spirit, body balance. We are healthy when these aspects are integrated-they work as one. We become unhealthy when we live partially or in parts of ourselves. When we are all heart, we may become unhealthy.  If we live mainly up in our heads, we may become unhealthy.  If we are all spirit and we ignore our intellectual and physical well-being, we may become unhealthy. If we are all physicality and we ignore our intellectual, emotional and spiritual beings, we may become unhealthy or un-whole. All the different parts of ourselves are meant to work together in an integral way. We work best as whole systems when all the parts of ourselves work together as an integrated whole.

In the same ways, systems function best, serve society best when they work integratively. And so professions and administrative systems that serve society do well to adopt a whole systems approach.

So the integrative approach to law, to justice is that every problem, every legal dispute is best solved when regarded as and properly located and understood within the system that it is a part of or the system from which it manifests. An integrated, problem-solving approach to injustice is alive to the idea that we cannot solve problems and disputes in isolation or in a vacuum.

It also understands that what we do to one part of a system we do to the whole. Just as what we do to one part of our bodies, we do to the whole. What we do to one organ affects the whole. What we do to one cell, affects the whole.

WHAT IS THE SHIFT?

The shift is from two parties as opponents in a divorce dispute to two people who are part of a whole system, that must function, albeit, in a modified format, as a whole system beyond divorce particularly of there are children.

The shift is from the state in pursuit of an accused person to the state and accused as parts of a whole. The one part has allegedly injured the society that the state represents. How does each part come away with what it needs. If we deny that the injurer has needs and must be subject only to just desert then we participate in keeping cycles of violence firmly in place. The most dangerous humans are the ones with unmet needs. We know that.

The shift is from commercial partners locked in litigation in which one will emerge the winner and the other the loser to how do we repair what went wrong in ways that each will came away with what they need.

The high point of justice is that each party comes away with what they need and not just what we think they deserve.

In her book, Lawyers as Peacemakers, J Kim Wright quotes the following from Sheila Boyce:

‘Society made big advance(ment)s by requiring symbolic battle rather than actual battle.’  Boyce goes on that this symbolic battle is litigation in which each side presents their claims before a member of the elite who will then decide a winner and a loser. Law school assumes that this is the best environment for the practice of law where lawyers either do battle to resolve problems or they assist their clients in pursuit of means to avoid the battle. But there is always the underlying assumption that litigation may happen and so information and intentions are kept confidential and if the battle happens it is on the basis of win at all costs.

This does not foster a justice understood as rightly related individuals, making up rightly related families, making up rightly related communities and so on. What this does do is that it entrenches our ways of working on problems in parts, or partially, isolated a way from a the whole that each individual is a part of. The result is that collaboration, co-operation and problem-solving are not fostered and so we keep at trying to deal with the brokenness within our society symptomatically where the ‘cure’ is often convictions, incarcerations, suspensions, exclusions and the dichotomy between winners and losers.

Boyce says that in a similar way, business people incorporate themselves to protect themselves from liability. Now we have this huge, unwieldy and inhumane system in which those who have the most money, wield the most influence and power, profits are everything and millions go without what they need. She says that millions more spend their lives in prison and that lawyers and judges can be the linchpins in this system. The fundamental assumption is that we are separate and apart, potentially in conflict with each other, there is not enough to go around and that the strongest, wealthiest and smartest must be well-defended.

When someone commits a crime, we aim to convict, separate. Punish and deprive that person for a certain period of time. At some point, the thoughtful amongst us will take a look at the results and outcomes and start to question them-first the outcomes and then the assumptions that underpin them and keep them in place and we will say this is unsatisfactory.

Many lawyers come to feel jaded and dissatisfied with what they do with their time and energy, she says.

So we come to the central question.

IS HUMANITY A WHOLE, INTEGRATED SYSTEM WHERE EACH PERSON IS TO BE TREATED WITH LOVE AND COMPASSION OR IS EACH PERSON SEPARATE AND ENTITLED TO PURSUE HIS OR HER OWN EGOIC INTERESTS TO THE DETRIMENT OF AND WITHOUT REGARD TO THE EFFECT ON OTHERS?

Boyle says that this is more than about making lawyers happy, it is about changing the relationship between citizens and jurisprudence.

And so how do we change this relationship.

J Kim Wright Identifies a number of Vectors.

VECTORS

1. Restorative Justice-addressing structural issues and shifting towards a justice that restores
2. Therapeutic Jurisprudence-specialised problem-solving courts-Children’s Court, Family Court, Sexual Offences Court
3. Mediation
4. Collaborative Law
5. Holistic Law

QUESTIONS FLOWING FROM THE CENTRAL QUESTION

Those who answered the central question in the affirmative have started to question the existential environment surrounding the legal and justice system:

What is we are not all separate and at odds with each other?

What if criminal justice is dehumanizing and degrading and keeps violence firmly in position in society?

Maybe litigated divorces are bad for parents and kids?

Maybe those who smoke weed should not be in prison?

Maybe sending the perpetrator to prison does not make them whole and does not stop the crime.

Maybe litigators are excited and energized by the battle but go home and wonder what they are contributing to.

By Sheena Jonker

sheena@adr-networksa.co.za

www.adr-networksa.co.za

RECOMMENDED READING AND SOURCES

J Kim Wright, Lawyers as Changemakers (S Jonker and Gabriela McKellar are contributors)

J Kim Wright, Lawyers as Peacemakers

ABOUT THE PRESENTER

SHEENA ST CLAIR JONKER

She obtained a BA in Legal Studies and Religious Studies from UKZN in 1992 and then obtained a postgraduate LLB in 1994 also from UKZN

She practiced law as an attorney for a decade as a general practitioner and also as a conveyancer

She taught law at University Level for 15 years

She had developed an interest in Alternative Dispute Resolution right at the beginning of practice

After the birth of her second child she stopped practising and took a year long break. After that she started to formally develop her passion for ADR and Restorative, non-adversarial systems and methods. She founded ADR Network SA which is a private Dispute Resolution Agency, training and development agency for mediators and arbitrators and also operates as a voluntary regulatory and compliance body in ADR

She is consulted widely both nationally and internationally for her expertise in restorative-justice informed dispute resolution processes across most areas of legal disputes. Past students of hers include local lawyers, judges, educators and international lawyers, judges and educators.

She also runs an NPO, The Access to Justice Association of SA which mobilizes dispute resolution resources for vulnerable persons and poor communities across Southern Africa.

She speaks and writes extensively about the promotion and development of non-adversarial and restorative methods in law reform projects and in organizational systems and structures.

Publications include:

Contribution to Lawyers as Changemakers, J Kim Wright (American Bar Association)

Various articles in Media for Justice

Various Articles in Thought Leader

Contributing Paper to Lawyers as Peacemakers Conference, IDRA, Unisa College of Law (2016)

Contributing Paper UNISA Labour Law Conference 2017

Accolades:

Shortlister: Hague Centre for Innovation in Law, 2016 (Access to Justice for Children)

Nominee: Pro Bono Awards, 2016

Other positions/Memberships/participations:

SAMLA Medico-Legal Mediator

Co-Chair-International Society for Therapeutic Jurisprudence (SA Chapter)

Member-International Integrative Law Movement

Email: sheena@adr-networksa.co.za