Mediation in the Military

By Rick Barber*

The use of mediation in the military is a tool that has been long overlooked to resolve disputes.  Two separate articles written by judge advocates, or military attorneys, suggest the use of mediation to resolve issues that were previously solved with punishment that may have outweighed the offenses.

The Uniform Code of Military Justice is the set of rules that governs all members of the armed forces. It is designed to “promote good order and discipline” and is carried out by judge advocates or military attorneys. Strict obedience to orders and adherence to personal conduct standards are all protected under the UCMJ since they are punishable in a military court, otherwise known as court martial. For lesser crimes, a service member could be subject to Article 15 of the UCMJ, which is non-judicial punishment. For example, if a civilian shows up late to work he may receive some form of punishment such as being docked his hourly wages. In the military, if a service member shows up late, he could receive NJP. If this happens enough times, he would be dishonorably discharged from the service. This article of the UCMJ gives the commanding officer the power to handle misconduct outside of a court martial which would require a greater punishment. It also alleviates pressure on the courts by allowing the lesser offenses to be dealt with much quicker than going through the court-martial process.

Every nation that deploys service members to another country establishes a Status of Forces Agreement, which includes the rights and privileges of those service members while they are in that particular country. This is different than a Visiting Forces Agreement, which only covers troops that are visiting, not those that are based in that country. The case study written about using mediation in a military context focused on how the SOFA in Japan is written in a way that leaves the discretion of disciplining American forces to the United States. The Japanese feel powerless in their own country, putting a strain on relations the U.S. The U.S. believes that it is necessary to have a presence in Asia and that is why they have established military bases in this region. The tension felt by the Japanese could result in a lack of cooperation if there were ever a need to work together.  By having a third party come in to assist with negotiations, representatives from both countries could agree upon amendments to the current treaty or develop a new one that would better suit their current situation.

The use of mediation could not only benefit the U.S. military by having a system in place to handle interpersonal grievances, but it would show the host country that the U.S. values the relationship that is in place. Many service members have been appealing their sentences which takes time and resources away from others who need the judge advocates for issues regarding civil or criminal cases. Resolving discipline concerns does not undermine the UCMJ or the commanding officer since the case study said that in the Navy, the officer in charge was the one who authorized the use of mediation as a way to bring closure to situations that would otherwise require punishment. Keeping service members out of court martials has shown to be a cost effective means versus other dispute resolution methods. The Navy saved over $3 million from 2001 to 2005 when it tested mediation to resolve conflicts. The Navy reported that the use of mediation improved combat readiness and unit cohesion, two very important factors in the military. Using mediation to resolve interpersonal disputes can bring the unit closer and is often times quicker than following the procedures for a court martial, without undermining the UCMJ or the authority of the commanding officer.

Military justice is very distinct in that it relies heavily upon the discipline and authority of the chain of command. According to the author, the military has relied on what has worked in the past, but not necessarily what might be the best solution. After seeing how successful mediation proved in the course of 4 years, it might be beneficial if the mediation program were expanded to include all 5 branches of the armed forces. The mediation process would not replace the discipline structure already in place, but it would add a new component that would aid those who are protecting this country. On both a personal level and at the national level, dispute resolution could make the process of military justice more efficient and benefit international relations.

The Student Legal and Mediation Services offers mediation as a confidential and economical way to assist students. For more information about this, or the other services that are provided, please call 936-294-1717 or visit us at http://www.shsu.edu/legalservice.

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