1. Mediation in Theory and in Practice in Scandinavia
Kaijus Ervasti
Valtiotieteellinen tiedekunta / Henkilön nimi / Esityksen nimi

2. Speaker: Kaijus Ervasti

3. What do you see in the picture?

4. 1. Conflict resolution

5. Tendencies in conflict resolution
Using of ADR and mediation has increased in Europe
In theoretical level there is a discussion of access to justice, postmodern law, legal pluralism and deliberative democracy
Theoretical understanding of different ADR – mechanisms and processes like mediation is however low
One way to build and assess conflict resolution systems is DSD (Dispute System Design)
In Nordic countries especially victim-offender mediation ans also court-connected mediation have strong positions

6. Conflict resolution systems in Finland and in other Nordic countries
Court system
General courts (criminal and civil procedure)
Administrative courts
Arbitration
Advisory services
Counselling
Ombudsmen
Boards
Self-Regulation systems
Council of mass media
Finnish Bar association
Others
Mediation services
Official mediation systems
Private mediation systems

7. Different ways to handle conflicts in general courts
Full-scale trial and judgment
Promotion of settlement in civil procedure (in preparatory stage)
Court - connected mediation

8. 3. Mediation in theory

9. Mediation as a system Theoretical models of mediation
Practical mediation systems in context
Mediation in Action

10. Theoretical models of mediation (Ervasti & Nylund 2014)
Individual centered
Problem solving
Solution-focused
Compromising
Evaluative
Process-focused
Facilitative, interest-based
Human growth
Development-focused
Transformative
Narrative
Humanistic
Restorative
Therapeutic
Models of mediation
Community centred

11. Basic model of mediation
The basic model of the mediation is the facilitative, interest-based model.
Mediator has responsibility of process and parties have responsibility of the outcome
Mediator shall not direct case to a certain outcome or shall not make proposals for a settlement
The main idea of mediation is that the parties can get high quality, individual results according their needs and interests - contrary to adjudication which gives standardized results according the law
Mediation in action must be in line with chosen theoretical model

12. Practical Mediation systems in Context (Ervasti 2018)
Valtiotieteellinen tiedekunta / Henkilön nimi / Esityksen nimi

13. Expansion of mediation in Finland
Mediaiton in labour disputes (law)
Family-mediation (law)
Victim-offender mediation (law)
Lawyer Medation
School mediation
Workplace mediation
Court mediation (law)
Neighbor-hood mediation
Mediation of construction disputes
Environmental mediation (experiment)
Expert- assisted family mediation in courts
(law)

14. 3. Mediation in action

15. What do you see in this picture?

16. Typical techniques in different models (Ervasti 2018)
Evaluative
Compromising
Facilitative
Transformative
Evaluating
Forwarding offers and counter-offers
Improving communication
Empowerment
Information promotion
Favouring middle of the range results
Active listening
Recognition
Settlement proposals
Highlightning the benefits of quick solution
Questioning
Changing the quality of conflict interaction
Challenging, reality testing
Highlightning the harms of other solutions (like litigation)
The development of alternatives/
brainstorming
Supporting the parties’ exercise of self-determination
Caucuses
One form of compromising is ”shuttle- mediation”
Dealing with emotions

17. Mediators attitudes to techniques
Don’t know much about techniques
Knows something about techniques but doesn’t care
Knows something about techniques but behave differently
Knows and try to use them but find it difficult
Knows and use techniques and reflect own actions

18. Problems with mediation in legal context
According the pure model of mediation (facilitative) mediator dominates the mediation process but the parties dominate subject matter of the conflict and the resolution of the conflict
In legal context (e.g. court - annexed mediation) mediation systems are often in practice hybrid systems; there are activities like evaluation and compromising
In many western countries judges promote settlement in court process; it is not mediation
In some countries there are mandatory mediation systems
In hybrid conflict resolution systems ethical principles of mediation do not realize and on the other hand people get not even formal legal protection; it can be semi-legal system

19. Examples of gap between theoretical basis of mediation and behaviour of mediators
Finland: VOM
Denmark: Court – connected mediation
Sweden: VOM
Norway: Court –connected mediation
Valtiotieteellinen tiedekunta / Henkilön nimi / Esityksen nimi

20. Legal education
”For law students to focus exclusively on the litigation process is like medical students studying only surgery as a means of curing illness. Of course, that is not what medical students do. They study an extensive range of subjects for the treatment and cure of illnesses. Law students too must extend their focus beyond the litigation arena to a greater understanding of problem-solving approaches. The legal community’s failure to do this for so long may be part of the reason for so much congestion in the civil justice system.” (Jaqueline M. Nolan-Haley 2001)
Valtiotieteellinen tiedekunta / Henkilön nimi / Esityksen nimi

21. More information
Ervo, L. & Nylund, A. (eds.): The Future of Civil Litigation. Access to Court and Court – Annexed Mediation in the Nordic Countries. Springer 2014.
Adrian, L. & Ervasti, K. & Nylund, A.: Mediation Research in Nordic Countries ( Forthcoming, will be published in the spring). Springer 2018.
Valtiotieteellinen tiedekunta / Henkilön nimi / Esityksen nimi

22. Thank you!
Valtiotieteellinen tiedekunta / Henkilön nimi / Esityksen nimi