Council of Europe Recommendation No. R (99) 19 Concerning Mediation in Penal Matters

1. The intention and the task of the Committee of Experts

1.1.  The importance and the function of the recommendation as legal policy guidelines. Or: What are recommendations good for?

The task as it was perceived by the Committee of Experts convocated by the European Committee on Crime Problems (CDPC), in itself part of the Directorate of Legal Affairs of the Council of Europe, consisted in the development of a report and/or recommendation that would provide guidelines for the member states.

CE-recommendations in general are marked by three features that shape and partly clearly restrict the scope and the influence of these international policy instruments:

• The various reports, the recommendations and the conventions of the CDPC are legal documents. They are addressed to the national governments, or more specific, their respective Ministries of Justice. The law and its institutions are at the centre of the deliberations and the resulting documents produced by a host of permanent and of transitional committees, of conferences and symposia. To involve a wider public beyond those of the experts of law happens only as an exception – the topic of mediation has been such an exception.     
• The cornerstone of the work of the Council of Europe is the ‘European Convention on Human Rights’ (ECHR). Every new document has to take this ‘Magna Charta’ of European legal policy into consideration, pay homage to it, and take issue with its content and meaning. It serves as a guiding star for policy making. The Convention of Human Rights and especially the articles that deal with procedural safeguards – for the alleged offender, but also for the victim - must be taken care of. By no means a kind of ruleless, albeit benevolent overpowering of the parties is to take place.
• Recommendations of the CE do have no binding quality. In the realm of ‘Legal Affairs’ they are intended to give orientation and support to legal policy arguments for those prepared and willing to use them. It needs the initiative of individuals, of groups, movements or institutions within the different member states to practically adopt the intentions and the guide-lines expressed in recommendations. The value or power of these documents rests solely with the moral standing, the reputation and persuasive power of the Council of Europe. But this moral power has to be transformed and turned into a relevant legal policy instrument. Otherwise it will be put aside, neglected and forgotten by the respective ministries and their bureaucracies. 

I regard it as quite important to be aware of these preconditions, or expressed in more abstract terms: to be aware of and informed about  the socio-political environment of the work of the Council of Europe and of the Committee on Crime Problems inside the CE; it is important in order to be able to assess and to appreciate in a realistic manner the importance and the function of the recommendation on ‘Mediation in Penal Matters.’

The convocation of the ‘Committee of Experts on Mediation in Penal Matters’ stands in a tradition of activities of the CDPC that has increasingly informed its work during the last ten years; several documents have been produced, dealing with matters like: the position of the victim in the framework of criminal law and procedure, assistance to victims and the prevention of victimisation, social reactions to juvenile delinquency, and simplification of criminal justice. Mediation as a specific procedure was addressed and has found its way into the Recommendation No. R (98) 1 on family mediation.

The so-called terms of reference had specified the topic to deal with in the following way:

Different models and programmes of mediation are in operation all over Europe. Time has come to evaluate these experiences and to assess the role of mediation in relation to the “traditional” penal system.

Such an analysis,… should address in particular the following questions and areas of concern:

• the potential of mediation to arrive at conflict solutions which are more accepted by those involved (including or excluding society at large) than those solutions which are procured by a traditional criminal procedure; 
• the role, training, professional status and degree of professionalisation of mediators;
• the areas of conflict which lend themselves to mediation as well as their underlying problem structure; 
• the form and degree of integration into the criminal justice system; 
• the relevance and practical implementation of due process requirements in mediation. 

1.2. The challenge and the contradictions of designing International (European) recommendations

The group of  people meeting in Strasbourg for a three-day-session four times starting in November 1996 up to April 1999 was very qickly confronted with the challenges and contradictions this task of designing international (European) policy guidelines implies (regardless of the topic to be addressed)

In the concrete field of ‘Mediation in Penal Matters’ these are:

• Retaining the diversity of practice, whilst at the same time keeping in mind the special quality of mediation and its relevance to criminal policy;
• Taking into account the different preconditions and prerequisites of legal policy (which are the basis of mediation practice in different countries);
• Attending to the task of developing policy recommendations which are well grounded in theory and empirically valid on the one hand but also sufficiently succinct and pragmatic, i.e. which are also flexible and manageable.

The diversity of VOM-practices found in different member states as well as the differences in legal-political preconditions existing between these countries, are indeed considerable – they should neither be denied nor should they be swallowed by highly generalized or abstract statements void of any meaning. Not everything was to go. 

The Committee of Experts arrived at drafting a coherent document, consisting of a recommendations and an explanatory memorandum that is guided by clearly discernable principles – most important those pertaining to the relation between VOM and the wider society.

And this Committee, I will contend, has also succeeded in handling the third of the contradictions and has issued recommendations that own at least the potential to serve as a guideline for European criminal policy – dependent on the conditions mentioned.  

2. The guiding principles of the recommendation

2.1. pertaining to the ‘outside’ relation of VOM to the wider society

The participatory element of mediation

This element: participatory procedure and participatory justice – is at the core of mediation – any mediation one has to add.

Mediation is an ancient, newly activated procedure that replaces or complements authoritative decision-making by participatory problem solving and conflict management, or to put it in a more modest and more concrete way: by an active, autonomous ‘working through’ the conflict by the parties affected by it; in the context of criminal law those are the ‘matters arising from the crime’. The parties themselves are drawing on their resources and their capacities to find a way to an understanding and an agreement that meets their concrete needs and interests. They start out from the everyday experience of the conflict, of the harm or damage done and suffered, and try for compensation and reparation, or even for re-tying social bonds that have been severed.

Mediation and restorative justice

Whereas the element of participation marks the nature of all types of mediation, the element of restoration, or restorative justice applies to the content of mediation in penal matters. The topic of restorative justice is one where we face a whole range of meanings and interpretations and we also have to deal with a host of emotions and emotionally fraught expectations. What is restorative justice, what does this concept denote?

Confronted with the problem of translation that has proved of considerable importance for the CE-member states, I have used for some time the German expression ‘wiedergutmachende Gerechtigkeit’ - justice that makes good again (the harm that has been done). Then I came across Clifford Shearing's article 'Violence and the Changing Face of Governance' that was translated by Claudia and by Trutz von Trotha as the editor of a volume on 'Sociology of Violence'. (special volume 37/1997 of the Kölner Zeitschrift für Soziologie und Sozialpsychologie) Clifford Shearing talks about 'restaurative justice' as a movement that challenges the retributive use of state repression and violence with the intention of acting according to a situational, or actuarial logic of setting things right but at the same time attending to the symbolic function of the law by paying tribute to the personal feelings, hurts and losses 'out of the past'. Thus it presents a kind of dialectical (Hegelian) synthesis (‘Aufhebung’) of the modern logic of safety and insurance (Versicherungslogik), i.e. of setting things right in a way that will hinder future disturbances and transgressions on one hand and the old-fashioned retributive logic of reacting to 'crime' (Unrecht) through the infliction of pain on the other. Thus it looks out for ways of answering the anger and the suffering of the victim not by inflicting punishment, but by instigating a process of  ‘restauration’. ‘Restaurative’ has been translated by the adjective 'aufarbeitend', which I re-translate: ‘working through’. This restorative effort is marked, as already stated, by attending to people’s concrete needs and interests, i.e. the harm, the anger and suffering experienced and by setting things right, i.e. by providing material and/or emotional compensation for these negative experiences.  

2.2. Guiding principles pertaining to the relation of VOM to the criminal justice system.

These principles that are also contained and spelled out in the recommendation flow from the primary principle of participatory justice. They define the place of mediation in relation to the criminal justice system in general.

Active participation of the parties involved calls for a certain autonomy of the VOM procedure. In order to realize participation, mediation has to follow its own rationale and design its specific inner structure that is different from the rationale characterizing the penal process. The latter is about the assessment of abstract guilt and the concomitant definitions of the criminal act according to the penal code, whereas mediation needs a setting that allows for an open and unrestricted communication, for the voicing of emotions, and for an active search for creative and practical solutions that answer the victim’s authentic needs and the alleged offender’s factual capacities to ‘make good’. 

Conditional/temporal autonomy

This principle is supposed to give sufficient time and room for this specific type of communication to enfold – while keeping the procedure inside the criminal law system; or in other words: Active participation and party autonomy is inserted into the criminal justice system by a paradoxical construction. It is put into practice by retaining state control or reaction to a conflict that has come to the notice of the state prosecutor or has already gone to the judge, but keeping this control temporarily dormant. It is a ‘time out’ construction and during this interval the rationale of mediation, i.e. its internal rules reign and come to the fore. When all is said and done, and an agreement is reached, the juridical logic, or rationale, that has been set aside, is called upon again to exercise once more discretion and either drop the charge, put up an indictment, or pass a sentence.

Voluntariness

The principle of voluntariness is also derived from the participatory element of mediation. Active participation – thus runs the argument - can only be realised if any trait of enforcement is avoided. As with most of the principles listed, voluntariness is a feature of any type of mediation. But it is especially mediation in penal matters that is frequently confronted with doubts and even reproaches concerning the lack of complete or ‘real’ voluntariness with regard to the alleged offender. Does not the impending penal procedure exert considerable pressure on these persons to ‘voluntarily’ accept the alternative of VOM? This topic has been dealt with extensively by the Committee of Experts. It is closely related to the requirements of due process, i.e. to procedural safeguards. Taking recourse to these legal safeguards is a way of protecting parties from any undue pressure being exerted: first of all, the pressure to submit to the VOM from the onset:  The relevant paragraph (11.) of the recommendations reads very short and simple:

Neither the victim nor the offender should be induced by unfair means to accept mediation.

The explanatory memorandum has expanded on the topic of procedural rights and safeguards though. It has taken recourse to the Article 6 of the European Convention of Human Rights (ECHR), i.e. the right to a fair trial and to the relevant jurisdiction of the European Court of Human Rights (Judgement of 27 February 1980, Series A, No 35) in the ‘Deweer case’. This judgement deals with the waiver of this very ‘right to a court’ and the conditions under which such a waiver is compatible with  procedural rights and safeguards of individuals in the criminal process, or in other words: whether it was made under proper circumstances,  Responsibility lies with the criminal justice authorities:

“They may not use any pressure against the parties in order to make them agree to mediation, and they should ensure that one party does not induce the other by threats etc.”  

This implies – with regard to the alleged offender – that the the consequences of not engaging in mediation should not be more severe than the consequences that would have been faced if mediation had not been available

Mediation and Human Rights

There is more to this relation than just the definition and protection of voluntary participation.

Heike Jung, one of the Scientific Experts to the ‘Committee of Experts on Mediation in Penal Matters’ has stated in a preparatory paper:

“Mediation is about adding a new quality, and not about doing away with the achievements of the process of civilisation in the realm of law. Referring to elementary supranational due process categories implies that mediation is not meant to be tied into an intricate web of legal formalism. But it has got to abide by some basic Human Rights requirements, such as those which have been enshrined in the European Convention of Human Rights.”

The precondition of admission of guilt is one of these requirements and it is, of course, closely connected to the above mentioned voluntariness of participation in the VOM procedure.Since according to the principle of  presumption of innocence, Article 6.2 ECHR, no decision on guilt may be taken by the criminal justice authorities without proper court proceedings, referral of a case to mediation should be guided by the requirement of the alleged offender admitting a degree of responsibility for the act at stake. A more flexible and open definition is sought for, one that falls short of recognising criminal liability; e.g. the Austrian Juvenile Justice Act states that the offender has to “stand up for his/her offence”.

Additional legal safeguards that have to be taken care of during and inside the VOM-procedure are:

“…the right to legal assistance and, where necessary to translation/interpretation. Minors should, in addition, have right to parental assistance.”

When talking about the work of the Committee of Experts in August 1998 at a World Conference on Conflict Management  in Buenos Aires it became evident that there is more to the relation of Human Rights to Mediation than just heeding procedural safeguards.

• Mediation in general can be perceived as contributing to the promotion, and the factual practice of democratic participation, i.e. active and equal participation in the solution and the working through conflicts between people.
• Mediation is bound to an ‘ethic of care’, i.e. a concern for the real and authentic needs of people harmed by wrongful acts of others, and
• Mediation in penal matters is an effort to keep alive the possibility and the practice of making good instead of relying exclusively on state punishment for counterbalancing an evil that has been done to somebody.

All these aspects can be understood as constituting part of a movement that places increasing importance on Human Rights in a wider sense, i.e. Human Rights as an attempt to strive for a dignified existence for all individuals and a decent way of them living together.

2.3.   Guiding principles pertaining to the inner structure of mediation

According to what was said about the legal/juridical nature of CE-documents, the committee was not supposed to deal in any detail with standards and methods of mediation.

The idea was to put these aspects of VOM-practice into the competence of the mediation service. Their autonomy as stated in in paragraph 5. (Mediation services should be given sufficient autonomy within the criminal justice system) and repeated in paragraph 20. (Mediation services should have sufficient autonomy in performing their duties) was to provide the framework for exercising this competence and the necessary discretion in designing and in performing VOM, and also in taking care of accreditation and training of mediators. 
On the other hand, the committee tried to convey in the document an impression of the uniqueness of the VOM-procedure – and especially so to the representatives of the criminal justice system, to prosecutors, judges and administrators.
There are two features of this process that have received special attention within the recommendation, namely  

Confidentiality

Confidentiality, i.e. keeping between the participants in the procedure any information communicated during the sessions, is an integral part of any mediation, and it is stated in the context of the recommendation as a general principle in paragraph 2. It was not easy though, to reach agreement on the exception from this principle. Paragraph 30 now talks about imminent serious crimes that constitute a reason, or even an obligation to inform the appropriate authorities (often, but not exclusively so, the criminal justice agencies) and/or the persons concerned.

Even more controversial was the question – in fact pertaining to the relation between VOM and the criminal justice system – to what extent the criminal justice authorities ought to be informed about what had been going on inside mediation. The wording agreed, implies protection of the principle of confidentiality insofar as it is only the steps taken in the course of the endeavour and the outcome of mediation that are to be reported to the criminal justice authorities.

“The mediator’s report should not reveal the contents of mediation sessions, nor express any judgment on the parties’ behaviour during mediation.”,

reads the second sentence of paragraph 32.

Impartiality

Impartiality is of course mentioned as an important inner quality of mediation; it is as part of the definition and it is pronounced a requirement in paragraph 26.

I think it is interesting to note that at a rather late point in the course of  the consultations of the Expert Committee, namely the drafting session for the explanatory memorandum, a discussion ensued on the concept and scope of impartiality. Paradoxically it was Heike Jung, the law professor who spoke up for impartiality in a strict sense, i.e. the mediator not only taking no sides, but also taking no stance concerning the matter at stake, i.e. the incidence that had come to the notice of the police (and the state prosecutor), whereas I wanted to take into consideration the fact that the special case of mediation in criminal matters gives the notion and the practical exercise of impartiality (or all-partiality as it is sometimes, very aptly, called in the literature on mediation) a specific turn. In family mediation for example, there is no objective right or wrong; there is just a conflict of interest. Mediation in criminal matter is subject to special tensions. According to my opinion, (and I have to admit that it is to a large degree shaped by my research on domestic violence) naming and denouncing the act as wrongdoing is required. But at the same time the mediation procedure derives its strength from the capacity of the mediators to create an atmosphere where both parties are really listened to and both find recognition, i.e. understanding and acceptance as persons. Mediation in penal matters therefore has to stand up to this tension and find a balance between naming and denouncing the (criminal) act beyond any doubt and at the same time reaching out to the person, the alleged offender, and trying to join social bonds that have been severed.

Within the explanatory memorandum we now find the sentence: “The requirement of impartiality does not imply that the mediator should be indifferent to the fact that the offence has been committed and the wrongdoing of the offender.”  - not exactly the meaning I tried to convey, but I can feel quite reconciled to it.