Mediation and the Criminal Justice System: a growing need for a viable alternative to court litigation

Kaplan, Emma

Mediation and the Criminal Justice System: a growing need for a viable alternative to court litigation

Master Thesis

2022

Abstract

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.

Keywords

Dispute Resolution

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