The Finnish Forum for Mediation (FFM), founded in 2003, is a Finnish mediation cooperation organization, the ideology of which is based on the modern mediation movement. Its board represents the entire mediation field though its members’ expertise and activities outside the Forum. FFM is a voluntary and independent non-governmental organization aiming to participate in and influence societal development by reinforcing the civil society and bettering the society’s well-being through mediation.
What is mediation ?
Mediation is a voluntary method of conflict management, in which an impartial outside party, the mediator, helps the parties of the argument through a particular mediation process reach an agreement that satisfies the arguing parties. The mediator does not take part in finding a solution to the conflict but rather acts as a facilitator in the process. The mediator directs the process, in which the parties themselves find a solution. The mediator does not passively retreat in the mediation dialogue but acts as an active listener. He or she allows room for emotive processing as well as for moral consideration and discussion on values. The mediator does not judge but sees to it that the agreement is reasonable for both parties. Mediation is social activity directed at the future. It is applied to find sustainable positive solutions. Mediation is a learning process.
The Mediation Theory
One of the most important background theories for the modern mediation movement is restorative justice, in other words, restorative conflict resolution. It is best accomplished in facilitative mediation in which all parties personally take part. The values of mediation are respect, tolerance, compassion, trust and forgiveness. At the core of mediation is dialogue, willingness to learn, understanding of another’s points of view and focusing on the future.
Nils Christie (1928-2015) has often been called the father of Nordic mediation. His opinion was that mediation will gain ground in societies because it ”lacks a sword”, meaning the power of punishment and because “the truth” is a relative concept. Mediation is based on the idea of involving citizens in processing and solving their own conflicts and in avoiding exclusion, stigmatisation and alienation. The solution gained through mediation is more based on the parties’ needs than on their legal rights. The main obstacles to mediation include ingrained attitudes, people’s determination to punish, as well as organizational cultures.
The Mediation Process
Mediation is neither about finding the guilty nor finding the absolute truth. The mediation process gives room to consider the parties’ different cultural backgrounds and their possible effects on the process. On occasion, the mediator can use the help of an expert-assistant and the parties may prefer to rely on a legal advisor. The parties can always have a supporting person present.
The goal should be that the mediator could ask, either on behalf of the parties or with their approval, for all those to be present in the process who are somehow touched by the conflict or who can be expected to be helpful in finding a solution to the conflict. This would allow the parties to also consider the larger social effects of their conflict.
In separate one-on-one meetings, which take place first before the actual mediation, the mediator aims to identify each party’s values, attitudes, views and interests. Thus the mediator can gain an overall picture of the situation. In the common meeting, the mediator helps create a dialogue between the parties as well as with the possible other people present, by building trust between the parties so that they can understand that they have a common conflict and that they also can solve it together. It is the mediator’s duty to see to it that the parties can as creatively and deeply as possible process the conflict in order to find a solution satisfying them all, regardless of their possibly very different values. An experienced mediator is peaceful; he/she lets the others talk while he/she remains silent. If needed, he/she interprets what the parties have said, makes a summary and also observes his/her own behaviour. Apology, forgiveness, learning and empowerment are all a part of mediation. By empowerment we mean that the party or parties in the future can better assert themselves, express their opinions as well as understand better their own and others’ behaviour.
As the mediation process progresses, new individual meetings can also take place. This can be useful, in particular, when feelings have negatively impacted the common meeting or when it is apparent that one of the parties has been overpowered by the other and has thus been unable to express his/her opinions. The parties can interrupt the mediation when they wish. When a common understanding and a solution have been reached, all those present take part in defining the mediation agreement and sign it. At this point, a follow-up meeting is scheduled, typically within 2-3 months from the agreement.
Arenas of mediation
Mediation in criminal cases
If something gets broken, it needs to be fixed. It is very seldom that the best consequence for a crime would be, from the victim’s or the offender’s point of view, a conviction.
The law on mediating criminal cases and some disputes in Finland became effective in January 2006 and was taken into practice on the 1st of June, 2006. The Finnish state is responsible for the organization and costs of mediation as a practice, acting according to mandates with municipalities and other organizers.
Mediation in criminal cases is provided as a free service, in which the suspect and the victim of the crime are given the opportunity, in the presence of an impartial mediator, to encounter each other confidentially. Such issues as the victim’s mental and material injuries can then be addressed and an agreement on how these injuries could be compensated for, can be reached independently. Mediation in criminal cases saves the society’s resources. It has been seen to have humane importance to both the victim and the offender as well as educational importance especially to young offenders. At its best, mediation in criminal cases diminishes or even erases the harm caused by the crime and prevents crime renewal.
It is a goal for SSF that mediation be used also in hard crime cases as well as family violence, as a means of lessening the psychological consequences. SSF also aims to influence the authorities in such a way that Finland could, as an example to other countries, see to it that more influence would be provided to the victim in a crime trial within the European Union.
Mediation in the field of day care and education – VERSO -programme
Restorative approach and mediation has been trained by VERSO-programme for Finnish day care units, schools and other units of education since 2001. VERSO- programme is funded by the Funding Centre for Social Welfare and Health Organisations (STEA), which is operating in connection with the Ministry of Social Affairs and Health.
Restorative practices and mediation are used as an alternative and child friendly justice processes in many level of society. Mediation is understood as a fundamental right to every citizen in every age and state.
Main purpose is to give the right of participation to parties in conflict to ensure that the parties can meet in safe situation, that they are heard and that they can influence to process and commit to the solutions.
Every conflict can be seen as a learning situation, which works both reactively as well as proactively. Individuals are seen as experts of their own living circumstances and therefore the important focus is to empower them for their lives and future just there where they live.
Looking at Child Friendly Justice, one basic focus is to give children information and experience of restorative practices and mediation even in kindergartens and schools. The aim is teach children to understand their rights as well as learn social skills by mediation.
In day care and schools mediation is seen as learning situation where children learn not only to manage conflicts but also to use their right of participating and being heard.This is proactive work for children to be active citizens and aware of their rights. The understanding of the access of justice should have roots in the daily life of schools.
The Finnish Basic Education Act and Core Curriculum are giving strong support for increasing participation of children in their schools.
Read more from web-side of VERSO-programme!
Mediation in work communities
Harassment and bullying at work are prohibited by law, but there are very few ways to intervene in such cases. Mediation is one of these ways. FT Timo Pehrman, the head of Finnish Forum for Mediation (FFM) have developed the model for restorative work place mediation with in his PhD research in 2011. Ever since he has in a frame work of FFM trained work place mediation in different Finnish Universities.
Mediation in work communities is a way to intervene with bullying and harassment at work, to add to the employees’ well-being and to promote the security in and the productivity of the work community.
Mediation in family conflicts
According to the Finnish Marriage law, solutions to conflicts and legal questions within a family must primarily be sought in negotiations between those concerned. For the time being, modern facilitative mediation is not used in Finnish family mediation. It is one of the goals of SSF to participate in the creation of a new mediation approach that focuses on children’s interests. In practise, this means a voluntary, facilitative approach in which the parties themselves, led by a trained mediator, make the agreements on custody and visiting rights. Both the parents’ and the children’s needs are taken into consideration so that the parenthood of both parents may continue even after the separation.
The Finnish Forum for Mediation launched a project on facilitative family mediation (FASPER) in cooperation with other associations in 201X. The project developed also cross-professional family mediation training.
Since the new law on court mediation took effect, also mediation in custody disputes can be practised in court. In such cases, the judge would primarily be assisted by a social worker.
There have been many encouraging experiences in environmental mediation in Europe. In mediation citizens, whose lives the construction projects affect, can participate in eliminating harmful effects and solutions can be found quickly and cost-effectively. In environmental cases, mediation should take place at an early stage, for example when a permit is being applied for, or even earlier in the project’s planning phase. For example in the US, a contested water dispute was referred to mediation by the US Supreme Court.
The process could be such that a municipality or an environmental authority asks a mediator to mediate. In a case with wide-spreading ramifications, the mediator could put up an advisory work group and make a suggestion on the mediation process. After a successful mediation, an agreement would be signed and put before the approval of the municipality or the environmental authority. SSF is seeking a pilot project, in which environmental mediation could be experimented with in practise.
International or Peace Mediation
International mediation is not altogether very different from other types of mediation. It is often resorted to in difficult international conflicts, especially when the hostilities are deep and long-lasting and when the parties’ own attempts at reconciliation have failed. Mediation is based on avoiding violence and is ultimately not binding. The main goal of the mediator is a decrease in violence and a peaceful solution. When a solution has been found, the mediator leaves the conflict arena.
Because mediation neither criticizes nor judges, it fits well with the reality of international relations where states and other actors jealously guard their own autonomy and independency. Mediation offers both parties an opportunity to gain a good result without the hostile parties necessarily having to negotiate directly with each other. It is also a process in which the final decision on the outcome is left to the parties themselves. All of these aspects make mediation a tempting method in resolving difficult conflicts.
The law on mediating disputes in the general Finnish courts became effective in January 2006. The mediator is a judge at the court that processes the case. The advantages of mediation compared with the traditional dispute proceedings include speed, low costs and the right that the parties themselves have to manage and control the conciliation agreement. To ensure the needed expertise, the mediator is free to bring in an assistant. The mediation is confidential; if the case is not settled and moves on to a court trial, the mediator may not judge the case.
In our interpretation of this law, the Parliament is urging mediation as the primary means of conflict resolution in our society, even if conflicts go as far as the court, and that a court trial is only a secondary option.
Mediation by Finnish Bar Association
The Finnish Bar Association offers mediation especially in commercial affairs, work relations, and family affairs. In the procedure, an impartial lawyer acts as a mediator and assists the parties in affirming a settlement. This type of mediation is negotiation aiming at settlement with the help of a third party.
Mediation by the Finnish Bar Association is voluntary and confidential. The mediator is not a judge and he/she cannot dictate binding orders or solutions to the parties. It is also not the mediator’s task to give legal advice to the parties.
The Finnish Bar Association has for several years now had a mediation training programme for lawyers. A list of these lawyers, as well as other information on the association can be found on the association’s website at: www.asianajajaliitto.fi. On the website, there is also a model for the mediation agreement as well as the Bar Association’s mediation rules.