Abstracts and Biographies:
Practice theory
ADR and Restorative Justice Approaches
under the Shadow under the (Criminal) Law (System) - The state of the art of
victim-offender-mediation (in Germany),
the danger of cooptation and a reconsideration of law theory
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Thomas Trenczek
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from other countries, especially common law jurisdictions, mediation
in Germany most frequently is used within the criminal justice field
by victim-offender reconciliation/mediation programs (VOR/MP).
However, the conceptual orientation and enforcement of
victim-offender mediation programming in the criminal justice system
(especially in Germany) brings some dangers with it - dangers for the
traditional criminal justice approaches as well as for the mediation
schemes. Theoretically, there may be more dangers for the criminal
justice system, at this time in practice it is a threat to the
ADR-approach. It hides the real nature and character of conflict
mediation and it prevents elements of restorative justice from
giving up their shadowy existence. The practice of VOMP (in Germany)
its majority is far from its potential, it is far from corresponding
to the basic idea of conflict resolution and reconciliation as well
as from the well established professional standards of
victim-offender mediation (in Germany). Most conspicuous are the
multiple search for niches of acceptance and the adaptation to
inappropriate ideas from the world of juvenile welfare and criminal
law. In its conception VOMP may not be the ideal way to foster a
restorative justice or mediation approach but for the treatment of
conflicts it is a useful means in a continuum of possible steps. If
victim-offender-reconciliation has an essential meaning, it is not
because of the modest attempts at practical realization but because
the connected ideas and vision make the essential tasks of law clear
to us. This last statement shall point to the fact that fundamental
criticism which does not lead to any development is not what I
intend. The thoughts (which are presented are not meant to be a
"killer argument" (in German: "Totschlagsargument")
against the implementation of mediation within the criminal justice
system; however they might be a reason to reconsider the current
usage of the criminal justice system as well as the status of
victim-offender-mediation and its further development. Even
my thoughts are based on an analysis of the German Criminal Statutes
and based on empirical observations made in Germany I doubt that the
essence of my criticism is not true for the Australian approach and
beyond.
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| Dr. Thomas Trenczek (*1960) is Professor of Law at the School
of Social Work of the University of Applied Sciences in Jena, Germany, where he teaches
Criminal and Juvenile Law as well as Mediation/conflict resolution. He holds several law
degrees (Dr. iur. summa cum laude; bar exams) as well as a M.A. in Social Sciences of the
University in Tübingen/Germany. In 1987/88 he has spent a year of research at the
University of Minnesota in Minneapolis (USA). He worked as a law clerk and in the state
attorney's office, in a law firm as well as in governmental bodies. From 1988-1991 he was
secretary general of the German Association of Juvenile Courts and Court Services. Besides
he is a cofounder and on the board of the WAAGE conflict resolution center in Hanover, the
largest VOMP in Germany. From Oct. 2001 - Jan. 2002 he spends part of his sabbathical at
the TC Beirne Law School and the Corrs Chamber Westgarth Dispute Management Centre of
the University of Queensland |
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Updated 21 February 2003 |
