Browsing by Author "Carels, Monique"

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    Advocating for Mediation as a means of addressing underlying issues with Discipline at Public High Schools in South Africa
    (2022) Tshifularo, Muofhe; Carels, Monique
    This paper discusses whether the disciplinary process in public high schools in South Africa achieves the purpose envisioned in the Schools Act. The purpose is to establish a disciplined schooling environment in which learners take responsibility for their behaviour and promote self-discipline. To establish positive discipline. However, according to research, the current disciplinary process has failed to teach learners about responsibility and self-discipline. This paper. through literature review, analyses the challenges in the current laws relating to school discipline. The first challenge is that the current disciplinary proceeding is retributive and adversarial. This is not in line with positive discipline. The second challenge is that suspensions are not in the best interest of the child. Thus, to address these challenges, consideration is given to the inclusion of peer mediation into the high school disciplinary process. Peer mediation has been successfully integrated in New Zealand and the United States and has resulted in an improved sense of responsibility and a positive school environment. Thus, it is argued that integrating peer mediation as a preliminary step in the high school disciplinary process would help teach learners responsibility and self-discipline.
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    Mediation and the Criminal Justice System: a growing need for a viable alternative to court litigation
    (2022) Kaplan, Emma; Carels, Monique
    An effective and efficient criminal justice system underpins the functioning of a country. The criminal justice system is premised on retributive justice and ensuring that offenders are punished. The primary method of dispute resolution in the South African criminal justice system is litigation. This process is characterised by a number of shortcomings, especially due to its adversarial nature. Further shortcomings include the highly complex, costly and time-consuming nature of litigation, overburdened court rolls, secondary victimisation, lack of victim participation, and ineffective purposes of punishment justifying long-term incarceration. These shortcomings infringe on the South African constitutional imperative of access to justice. When exploring alternate forms of dispute resolution, mere negotiation can be seen as too informal of a process for justice to be administered. Contrastingly, arbitration can be described as an adversarial process since the point of the proceedings is for the truth to be revealed and reflected via a binding award ruled by the arbitrator, who acts like a judge. Thus, mediation offers a viable mix since it deals with disputes in a flexible, confidential manner with the possibility of written settlements becoming legally administered rulings. South Africa is no stranger to restorative justice practices due to its unique and pluralistic legal system. The South African Constitution's preamble aims to seek redress by recognising the injustices of the past and promoting restoration and the spirit of Ubuntu. Victim-offender Mediation and Family Group Conferences are forms of ADR, premised on restorative justice. This dissertation aims to explore the incorporation of mediation as a formal part of the South African criminal justice system. It seeks to determine if pre-trial diversion to mediation can be a viable alternative to achieving criminal justice as opposed to the default being adversarial criminal trials. A further aim of this paper is to entice individuals working within the criminal justice system, as well as the courts to actively view mediation as an alternative process of achieving fairness and access to justice within the criminal justice system allowing for eventual policy reform. This recognition will allow for strategies that can enhance the criminal justice system and improve societies as it will ease the burden placed on law enforcement, the courts and correction services.
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    The Potential of Mediation in the Resolution of Crimes of Ecocide
    (2020) Walti, Stephanie; Carels, Monique
    This minor dissertation deals with the question of whether there is a potential for mediation in relation to the resolution of conflicts concerning the crime of ecocide. First, the terminology and conceptuality are presented and an analysis of the situation regarding mediation in the solution of ecocide crimes is prepared. The potential of mediation for ecocide crimes is then discussed and clarified on the basis of the findings. The minor dissertation is based on the evaluation of relevant literature and the investigation of case studies (in particular mock trials). By doing so, the author aims to gain insights into how we can effectively combat ecocide and thus protect the environment – our very basis of life.
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    Time for a Differentiated Method for Intercultural Negotiations ? Research on the Universal Applicability of Getting to Yes
    (2023) Ratt, Yannic; Carels, Monique
    Existing negotiation literature attempts to provide readers with guidance on how to negotiate successfully, but does not take into account the increasing complexity of inter-cultural negotiations. To facilitate inter-cultural negotiations, this dissertation explored the universal applicability of the book Getting to Yes: Negotiating an Agreement without Giving In1 by Roger Fisher, William Ury and Bruce Patton, which has paramount significance in the negotiation literature, and ultimately proposed a differentiated method. Without a new perspective on the existing negotiation literature that promotes universal applicability, intercultural negotiations are repeatedly based on a false basic premise and an important further development of negotiation methodology is blocked. This dissertation therefore examined the universal applicability of the Getting to Yes method based on existing literature and made suggestions as to which approaches should be used in inter-cultural settings instead. As a result, this dissertation shows the reader the difficulties of inter-cultural negotiations and that not a uniform but a differentiated method is necessary to conduct them in a promising way. Accordingly, the proposed differentiated method can contribute to this.