On Mediation

Historical, Legal, Anthropological and International Perspectives

Karl Härter, Carolin F. Hillemanns, Günther Schlee, Karl Härter, Carolin F. Hillemanns, Günther Schlee

• Publisher: Berghahn Books
• Year: 2020
• ISBN:
  9781789208702
• Edition: 1
• Topic: Développement personnel
• Subtopic: Résolution des conflits

Exploring mediation and related practices of conflict regulation, this book takes an interdisciplinary approach that includes historical, legal, anthropological and international perspectives. Divided into three sections, the volume observes historical and current relations between mediation and the criminal justice system and provides anthropological perspectives and case studies to explore mediation and arbitration in international arenas. In this regard, the book provides an innovative perspective on mediation and new insights into conflict regulation.

Part I

Mediation, Arbitration and the Criminal Justice System

Historical and Current Developments

Chapter 1

Infrajudicial Modes of Conflict Regulation through Negotiation, Mediation and Arbitration in Early Modern European Criminal Justice

Karl Härter

Introduction: Mediation and Arbitration in Historical Perspective

In modern Western societies, mediation is conceptualized as an extrajudicial form of alternative dispute resolution to settle a variety of conflicts related to family, juveniles, business, workplace, religion, intercultural and international settings. Mediation appears to be the better alternative to the formal, adjudicative treatment of conflicts because it is regarded as a non-violent, peaceful, non-compulsive, preventive, cost-saving mode to solve disputes (Horn 2006; Menkel-Meadow, Love and Kupfer Schneider 2006; Busch and Mayer 2012). However, with regard to crime and criminal justice, the function of mediation is still controversially disputed. Although ‘victim–offender mediation’ or ‘plea bargaining’ constitute ‘alternatives’ to formal sentencing and punishment, they are closely intertwined with formal criminal procedure and hardly apply to a strict definition of private mediation.¹

From a historical perspective, it seems to be even more difficult to study mediation and arbitration by using an ideal type concept of private alternative dispute resolution which is characterized by conflicting parties that voluntarily choose an impartial third party which should negotiate a settlement but had no authority to pass a judgement. First of all, it is difficult to conceptualize mediation only as a mode of alternative dispute resolution opposite to adjudicative dispute resolution managed by state institutions and courts. Prior to the formation of the modern state with a monopoly of power in the nineteenth century, the various justice systems in pre-modern Europe cannot be regarded as solely ‘public’ or state based. Although in early modern Europe a public criminal justice system developed – characterized by inquisitorial procedure, professional jurists and courts, and the learned law – its final establishment only happened in the nineteenth century with the implementation of new criminal codes such as the French Code d’instruction criminelle (1808) and the Code pénal (1810) and a public judiciary that was only based on the sovereign state with a monopoly on the use of force and justice.²

In pre-modern Europe, the society and the state were not yet separated into ‘private’ and ‘public’ spheres, and as a hybrid or plural legal system, criminal justice still comprised to some extent traditional, local, popular, social or other norms, procedures, communities and actors.³ Thus, we cannot classify conflict parties as ‘private individuals’, who possessed the liberty to use alternative dispute resolution and mediation autonomously from the authorities or their respective estate, order, corporation and community, nor can we identify completely independent private ‘mediators’. Third parties involved in extrajudicial conflict regulation were most often related to or held a semi-public function or position and can be characterized as ‘infrajudicial agents’. In the pre-modern society of orders, all kinds of disputes as well as deviant behaviour could be regarded as a ‘public’ or ‘social’ conflict that could affect the concerned group, the common weal, the good order, the common peace and the legal order.⁴ Hence, dispute resolution cannot be clearly separated from a public criminal justice system as an alternative and private means to settle conflicts.

Furthermore, extrajudicial alternative dispute resolution in which third parties acted as ‘mediators’ or ‘arbitrators’ hardly produced (written) sources and at best left a few traces in public and judicial documents (Ruff 2008: 44). An empirically based survey is most often only possible in cases where semi-public actors or the legal system were to some extent involved or intertwined with practices of alternative dispute resolution. As a result, the (legal) history of extrajudicial dispute resolution is still at its very beginning, in particular regarding the variety of arbitration and mediation practices.⁵ Only a few studies in the history of crime and criminal justice have focused on extra- or infrajudicial practices that involved third party conflict regulation, arbitration and mediation.⁶

Focus and Structure of the Chapter

Considering the state of research, this chapter can only give an overview of conceptual issues and problems of the legal history of mediation, arbitration and related modes of alternative dispute resolution in the field of deviant behaviour, crime and criminal justice in early modern Europe, with a spatial focus on France, Italy, Spain and the Holy Roman Empire of the German Nation. As open, hybrid systems, early modern criminal justice in most European states was characterized by several internal and external practices of infrajudicial conflict regulation, such as arbitration, mediation, negotiation, supplicating, intercession, petitioning, pardon and criminal asylum, which were more or less intertwined with formal judicial procedures, in particular concerning the inquisitorial criminal process in continental Europe. These practices functioned as alternatives and supplements to formal adjudication and sentencing, and can therefore be characterized as infrajudicial, hybrid modes of mediation and arbitration. They were used by different actors and ‘infrajudicial agents’ to negotiate and mediate compensation, agreements, reconciliation, support, grace and pardon as well as social control and sanctions, which, therefore, constituted alternative options to punishment and retaliation to establish and maintain social order and peace.⁷

This concerned a broad variety of conflicts related to wrongdoing, deviant behaviour and crime that were not regarded as a matter of ‘private individuals’, but concerned families, communities and the social order of the early modern society as a whole. Since in the early modern period no separation of society and state or crime and private conflicts existed, wrongdoing and crime not only affected ‘private’ individuals or parties, but constituted a social as well as public conflict that could be regulated through public criminal justice or extrajudicial means such as negotiation, mediation or arbitration. This concerned violence, notably homicide, physical injuries, assault and battery; verbal insults, swearing and cursing, blasphemy and various religious wrongdoings; marital conflicts and deviant or criminal sexual behaviour such as fornication and adultery; as well as property crimes or wrongdoings in the economic sphere.⁸

Since it is difficult to clearly distinguish mediation and arbitration from other practices of extrajudicial dispute resolution, just as it is impossible to separate a sphere of private alternative dispute resolution from the public criminal justice system, I use the concept of ‘infrajustice’ to analyse the mentioned internal and external judicial practices of conflict regulation. Infrajustice emphasizes the complex relations between the judicial and extrajudicial spheres and the various hybrid modes of conflict regulation, which, nevertheless, were related to some extent to the sphere of public criminal law and justice. Infrajustice refers to plural legal configurations and includes alternatives to authoritarian jurisdiction and court justice, and interactions between social and judicial practices of conflict regulation, as well as all non-formal extrajudicial practices related to or used within the legal systems that functioned as alternatives to prevent or mitigate retaliation and punishment and aimed to maintain the social (and legal) order as well. These practices are characterized by harmonie, jugement en équité, médiation, réparation et non la répression to regulate or settle conflicts and crimes via and with the help of various third parties and ‘infrajudicial agents’, but often in interaction with judicial or legal institutions.⁹

Building on this basic consideration and using the concept of infrajustice, the following issues and questions will be analysed:

• mediation, arbitration and conflict regulation by third parties/‘infrajudicial agents’ in pre-modern judicial discourses;

• actors, parties and agents of infrajudicial practices of mediation and arbitration;

• supplicating, intercession, petitioning, pardon and criminal asylum as infrajudicial practices of negotiation, mediation and arbitration intertwined with formal criminal procedure;

• the types of conflicts related to crimes and deviant behaviour and the respective functions of arbitration and mediation to regulate these conflicts.

The Emergence of Mediation and Arbitration in the Legal Sphere

In late medieval Europe, ‘infrajudicial agents’ of arbitration and mediation emerged in various conflicts related to the legal sphere, which were designated in the sources as Vermittler, freundlicher, guter Mittler, Minneteidinger, Mittelsmann, Mitter, Mittmann, Moderator, schidmann, intercessor, interpres, arbiter, mediator, pacator, conciliator, interventor, disceptator and amicabilis compositor. They were considered as a third party that negotiated, arbitrated and mediated settlements, compensation or agreements in various types of conflicts, ranging from manslaughter and homicide over feuds to political disputes and armed conflicts.¹⁰

However, despite the frequent use of such modes of conflict regulation, the legal discourse did not establish a distinguished concept of mediation in and of itself, and rather subsumed conflict regulation by third parties under the concept of arbitration. Hence, mediation and mediators were (more or less) discussed as a specific form of arbitration without sharply distinguishing between the two.¹¹ Instead, arbitration, mediation and negotiation by ‘infrajudicial agents’ were generally accepted as a kind of legally based mode besides ordinary formal procedure, following the dichotomy of courtly love or adjudication (Minne oder Recht / per amorem vel per iusticiam/iustitiam).¹² It was not strictly based on the law but on the principle of aequitas and resulted not in a legally binding decision but in an amicable composition (amicabilis compositio), an equitable/reasonable arbitrament (Schiedsspruch ex aequo et bono), an arbitration agreement (Schiedsvertrag) or an agreement of atonement (Sühnevertrag), for instance concerning the settlement of a feud or compensation for manslaughter, homicide or other types of wrongdoing, injury and damage.¹³

This corresponded to a variety of third parties and ‘infrajudicial agents’, which legal theory systematically described by their function as:

• the arbiter who decided or adjudicated a dispute via equitable/reasonable discretion not strictly based on the law and formal procedure;

• the arbitrator (Schiedsmann / vir bonus) chosen and authorized by both parties to determine via equitable discretion (billiges Ermessen) a proposal, an obligation, a composition or compensation;

• the amicabilis compositor legitimated through personal authority who acted as mediator, negotiated a settlement and encouraged the parties to settle a dispute via an amicable agreement (amicabilis compositio) without any binding decision and with the prime purpose to re-establish the peace between the parties as well as the common one.¹⁴

However, in many cases, we find a conglomeration of these ideal types of third party actors that mediated and arbitrated outside or inside the legal system, and neither legal theory nor practice clearly separated mediation and arbitration: ‘no one excluded mediation when they spoke of arbitration. It was an integral part of the process’ (Roebuck 2013: xvi).

Since the Late Middle Ages, courts of arbitration (Schiedsgerichte) that arbitrated, mediated and negotiated various types of conflicts and wrongdoings according to the principles of aequitas and an amicable agreement were gradually established. Although denoted as courts by contemporaries, they were not considered regular institutions of the judiciary, since they were composed of laypeople and members of the social peer group or estate, for instance noblemen in the case of the Austrägalgerichte (courts of arbitration). The regulation of conflicts between rulers and states through various arbitrators and mediators developed into a widespread practice in early modern Europe, although on the interstate level an international arbitration court was only established at the beginning of the nineteenth century.¹⁵

Furthermore, local lay courts served as forums of arbitration and mediation. Discussions and negotiations took place in the court or with the help of judges and jurors, but these mostly informal infrajudicial proceedings did not result in a formal sentence and conflicts were finally settled outside the court or through other means than punishment. In many early modern criminal justice systems, judicial institutions served as a forum to p...