GUIDELINES FOR A BETTER IMPLEMENTATION OF THE EXISTING
Strasbourg, 7 December 2007
CEPEJ(2007)13
EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE
(CEPEJ)
GUIDELINES FOR A BETTER IMPLEMENTATION OF THE EXISTING
RECOMMENDATION CONCERNING MEDIATION IN PENAL MATTERS
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GUIDELINES FOR A BETTER IMPLEMENTATION OF THE EXISTING
RECOMMENDATION CONCERNING MEDIATION IN PENAL MATTERS
Introduction
1. At the Third Summit of the Council of Europe (Warsaw, May 2005), the Heads of State
and Government undertook to make “full use of the Council of Europe’s standard-setting
potential” and “promote implementation and further development of the Organisation’s legal
instruments and mechanisms of legal co-operation”. They also decided “to help member
states to deliver justice fairly and rapidly and to develop alternative means for the settlement
of disputes”.
2. In the light of these decisions, the CEPEJ, one of whose aims in its Statute is “to enable
a better implementation of the international legal instruments of the Council of Europe
concerning efficiency and fairness of justice”, has included among its priorities a new activity
directed towards facilitating effective implementation of Council of Europe instruments and
standards regarding alternative dispute settlement.
3. The Working Group on Mediation (CEPEJ-GT-MED)1 was therefore set up to gauge the
impact in member states of the relevant recommendations of the Committee of Ministers,
namely:
- Recommendation Rec(98)1 on family mediation,
- Recommendation Rec(2002)10 on mediation in civil matters,
- Recommendation Rec(99)19 concerning mediation in penal matters,
- Recommendation Rec(2001)9 on alternatives to litigation between administrative
authorities and private parties,
and to recommend specific measures for facilitating their effective implementation, thus
improving implementation of the mediation principles contained in these recommendations.
4. This document concerns Recommendation Rec(99)19 concerning mediation in penal
matters. The three other Recommendations, which concern family mediation, mediation in
civil matters and alternatives to litigation between administrative authorities and private
parties, require a specific approach and are examined in separate documents.
5. At the first meeting of the Working Group (Strasbourg, 8-10 March 2006), a
questionnaire was drawn up to determine member states’ awareness of the above
Recommendations and the development of mediation in their countries in accordance with
the principles contained therein. The questionnaires were sent to 16 representative states.
6. 52 replies were received to the questionnaire from member states and from
practitioners and a report was drawn up by Mr Julien LHUILLIER (France), scientific expert,
summarising those responses. However, limited information was supplied on mediation in
penal matters. Since the adoption of the Recommendation, the concept and scope of
mediation in penal matters has developed, and a broader concept of “restorative justice” has
emerged, including “victim-offender mediation”2. Therefore, it is suggested that further work
1 The CEPEJ-GT-MED is composed as followed: Ms Nina BETETTO (Slovenia), Ms Ivana BORZOVÁ (Czech
Republic), Mr Peter ESCHWEILER (Germany), Ms Maria da Conceição OLIVEIRA (Portugal), Mr Rimantas
SIMAITIS – President - (Lithuania), Mr Jeremy TAGG (United Kingdom), Ms Anna WERGENS (Sweden).
2 See also UN Basic principles on the use of Restorative justice Programmes in Criminal Matters ECOSOC Res
2000/14 and Res 2002/12.
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should be undertaken on updating the Recommendation. Before doing so, it would be
necessary to have a fuller evaluation of the impact of restorative justice in member states
based on up-to-date and comparable data.
7. As might be expected, there are considerable differences between member states in
the way that victim-offender mediation has advanced, particularly because of the following
obstacles:
lack of awareness of restorative justice and mediation,
lack of availability of victim-offender mediation before and after conviction,
power to refer parties to mediation limited only to a single criminal justice institution,
relatively high cost of mediation,
lack of specialized training and disparities in qualifications of mediators.
8. In the light of these obstacles and in view of the fact that restorative justice processes
may serve as an alternative to conventional justice, and as a tool for conflict management,
but also in view of its potential to repair harm and to reduce reoffending, the Working Group
has drawn up the following non binding guidelines to help member states to implement the
Recommendation concerning mediation in penal matters.
1. AVAILABILITY
9. To expand equal availability of mediation services, measures should be taken to
promote and set up workable mediation schemes across as wide a geographical area as
possible, at all stages of the criminal justice procedure, including the execution of sanctions.
1.1 Support of mediation projects by member states
10. Member states should recognise and promote existing as well as new workable
mediation schemes by financial and other forms of support. Where successful mediation
programmes have been established, member states are encouraged to expand their
availability by information, training and supervision.
1.2. Role of the judges, prosecutors and other criminal justice authorities
11. Judges, prosecutors and other criminal justice authorities have an important role in the
development of mediation. They should be able to give information, arrange information
sessions on mediation and, where applicable, invite victims and/or offenders to use
mediation and/or refer the case to mediation. Member states are encouraged to establish
and/or improve co-operation between criminal justice authorities and mediation services to
reach victims and offenders more effectively.
1.3. Role of social authorities and non governmental organisations
12. Member states are encouraged to recognise social authorities, victims support
organisations and other organisations engaged in the criminal justice system, since they
have an important role in promoting restorative justice and mediation. Where applicable,
such bodies may invite victims and/or offenders to use mediation. They may for example
have a role in conducting mediation, in offering different forms of restorative justice as well as
in supporting the parties.
1.4. Role of lawyers
13. The codes of conduct for lawyers should include an obligation or a recommendation for
lawyers to take steps to provide relevant information and, where appropriate, suggest the
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use of victim-offender mediation to parties and plead for referral to mediation by the
competent authorities.
1.5. Quality of mediation schemes
14. It is essential for judges, prosecutors and other criminal justice authorities when
referring parties to mediation, for lawyers when advising clients, and for the general public
confidence in the mediation process that the quality of mediation is assured.
15. It is important that member states continually monitor their mediation schemes and ongoing
pilot projects and arrange for their external and independent evaluation. Certain
common criteria, including both qualitative and quantitative evaluation aspects, should be
developed to enable the quality of mediation schemes to be compared. Legislators and/or
criminal justice authorities of member states are encouraged to identify possible
consequences of mediation and mediated agreements on criminal procedures.
16. In view of the imbalance of power between the victim and the offender following a
crime, member states should be aware that the needs of the victim require special
consideration before, during and after the mediation. For this reason, member states are
recommended to carry out further research and developments in this matter.
1.6. Confidentiality
17. The duty of confidentiality should be binding for the mediator at all stages of the
mediation process and after its termination. Whenever this duty is subject to exceptions3,
these exceptions should be clearly defined by legislation.
18. Members States should provide for legal guaranties of confidentiality in mediation. The
breach of the confidentiality duty by the mediator should be considered as a serious
disciplinary fault and be sanctioned appropriately.
1.7. Mediators’ qualifications
19. Member states and/or mediation stakeholders should provide adequate training
programmes for mediators and, taking into account the disparities in training programmes,
set up common standards concerning the training.
20. As a minimum, the following items should be covered in mediation training:
principles and aims of mediation,
attitude and ethics of the mediator,
phases of the mediation process,
basic knowledge of criminal justice system
the relationship between criminal justice and mediation,
indication, structure and course of mediation,
legal framework of mediation,
skills and techniques of communication and of work with victims, offenders and others
engaged in the mediation process, including basic knowledge on reactions of victims
and offenders,
skills and techniques of mediation,
adequate amount of role plays and other practical exercises,
specialist skills for mediation in cases of serious offences and offences involving
minors,
various methods of restorative justice,
3 See in particular Recommendation Rec(99)19 concerning mediation in penal matters, paragraph 30.
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assessment of knowledge and competence of the trainee.
21. This training should be followed by supervision, mentoring and continuing professional
development.
22. Member states should recognise the importance of establishing common criteria to
permit the accreditation of mediators and/or institutions which offer mediation services and/or
who train mediators. Because of the increased mobility throughout Europe, measures should
be taken to establish common international criteria for accreditation as, for example, a
certificate of European mediator, etc.
23. As certain member states encounter problems where the quality of training of mediators
is concerned, national training institutions are recommended to establish links and/or to
establish a continuous training programme for mediators and for mediation trainers (for
example, a European training centre). This could be facilitated by the Council of Europe in
co-operation with the European Union.
1.8 Participation and protection of minors
24. Member states should recognise the importance of supporting and protecting minors
during their participation in the mediation process by the establishment of adequate
safeguards and procedural guarantees.
25. Member states should work together to examine, evaluate, and identify good practices
in order to establish specific guidelines to the participation of minors in mediation in penal
matters. This could be facilitated by the Council of Europe in co-operation with the European
Union.
26. These specific guidelines should include:
a. the relevance of the child’s age or mental maturity and its consequences for the
involvement of the minor in the mediation procedure;
b. the role of parents, in particular in those situations where parents may oppose
participation in mediation;
c. the involvement of social workers, psychologists and/or legal guardians in mediation when
minors are present.
1.9. Codes of conduct
27. Member states should take measures to ensure the uniformity in the concepts, scope
and guarantees of the main principles of mediation such as confidentiality and others within
their countries, by legislative measures and/or by developing codes of conduct for mediators.
28. Having in mind that the European Code of Conduct for Mediators in civil and
commercial mediation is gaining general recognition by various mediation stakeholders
throughout Europe, it is recommended that a special Code of Conduct shall be elaborated
with respect to the particularities of mediation in penal matters.
1.10. Breaches of codes of conducts
29. Where mediators breach a code of conduct, member states and mediation
stakeholders should have in place appropriate complaints and disciplinary procedures.
1.11. International mediation
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30. Discharges based on mediated agreements should have the same status as judgments
or other judicial decisions, if they are taken by official judicial staff, e.g. member of the office
of the public prosecutor or judge. Such a decision will preclude prosecution in respect of the
same facts in another member state (ne bis in idem).
2. ACCESSIBILITY
2. 1. The rights of victims and offenders
31. In order to enable victims and offenders to take part in mediation, members States
should take all necessary steps to ensure that their rights are protected and that they are
fully aware of their rights. Mediation requires the free and informed consent of both victims
and offenders, and should never be used if there is a risk that mediation may disadvantage
one of the parties. Due consideration should be given not only to the potential benefits but
also to the potential risks of mediation for both parties and in particular for the victim4.
32. Special effort should therefore be made to ensure that information about victim-offender
mediation is clear, complete and timely.
This information should contain:
· the process of the mediation itself;
· the rights and obligations of users;
· the legal effects of mediation.
33. The parties in mediation should, in particular, be fully informed of the possible
consequences of the mediation procedure on the judicial decision making procedure.
including discontinuation of the criminal procedure, suspension or mitigation of the sanction
imposed on the alleged offender. Also, in cases where victims are particularly vulnerable,
they should be made aware of the possibility of conducting a mediation without face-to-face
contact with the alleged offender.
2.2. Cost of the mediation for the users
34. In order to make mediation accessible, member states should ensure direct financial
support to mediation services via legal aid and/or other means. Exceptionally, in those
member states where the offender has to finance partly his/her participation in mediation,
member states should ensure that his/her contribution remains proportionate to his/her
income. A costly mediation procedure not covered by legal aid might be an obstacle to
mediation.
2.3. Suspension of limitation terms
35. In order to make mediation accessible, its use should not be prevented by the risk of
expiry of limitation terms. In order to rectify this problem, member states are encouraged to
consider implementing provisions for the suspension of limitation terms.
3. AWARENESS
36. It appears from the questionnaire responses that lack of awareness about restorative
justice among the judiciary, prosecutors and other criminal justice authorities, victim support
organisations, legal professionals, victims and offenders and the general public is one of the
main obstacles to the development of mediation.
4 See Recommendation Rec(2006)8 on assistance to crime victims, item 13.
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37. In order for the Recommendation on mediation in penal matters to be accessible to
policy makers, academics, mediation stakeholders and mediators, it is vital that it is
translated and disseminated in the languages of all member states.
38. It is recommended that CEPEJ creates a special page on mediation in its website. It
could include translated text of the Recommendation, its explanatory memorandum and
other relevant texts of the Council of Europe concerning mediation, assessment of the impact
in countries of the Recommendation on mediation in penal matters. This special page could
also include information on the monitoring and evaluation of mediation schemes and
mediation pilot projects, list of mediation providers in member states, useful website links,
etc.
3.1. Awareness of the general public
39. Member states, NGO’s and other mediation stakeholders should take appropriate
measures to raise awareness of the benefits of the mediation among the general public.
40. Such measures may include:
Articles/information in the media,
dissemination of information on mediation via leaflets/booklets, internet, posters,
mediation telephone helpline,
information and advice centres,
focused awareness programmes such as “mediation weeks”,
seminars and conferences,
open days on mediation at courts and institutions which provide mediation services
41. Member states, universities, other academic institutions and mediation stakeholders
should support and promote scientific research in the field of mediation and restorative
justice.
42. Mediation and other forms of restorative justice should be included in schools national
curricula.
3.2. Awareness of the victims and offenders
43. Members of the judiciary, prosecutors, the police, criminal justice authorities, lawyers
and other legal professionals, social workers, victims support organisations as well as other
bodies involved in restorative justice should provide early information and advice on
mediation to the victims and offenders, accentuating the potential benefits and risks to both.
3.3. Awareness of the police
44. Since the police intervene during the early stages of a case, and are therefore the first
to be in contact with the victims and offenders, their training should include an understanding
of restorative justice. Specific consideration should be given to the matter of referring cases
to mediation. This could be achieved by training including information on perpetrators and
victims, as well as through the distribution of leaflets/brochures.
3.4. Awareness of the judiciary and prosecutors
45. An increasing number of member states have adopted legislative measures to allow
judges and prosecutors, on an equal footing, to invite victims and/or offenders to use
mediation and/or refer the case to mediation. For this reason, these two bodies should be
fully informed of the mediation procedure and conscious of its advantages and possible risks.
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This could be achieved via information sessions and initial and continuous training
programmes.
46. It is important to foster both institutional and individual links between mediators and
judges/prosecutors. This can be done in particular by conferences and seminars.
3.5. Awareness of the lawyers
47. Restorative justice and mediation should be included in the curricula of initial as well as
continuous training programmes for lawyers.
48. Bar associations and lawyers associations should have lists of mediation programmes
providers and disseminate them to lawyers.
49. Members States and Bar associations should take measures to create legal fee
structures that do not discourage lawyers from advising clients to use mediation in settling
disputes.
3.6. Awareness of social workers
50. Member states are encouraged to take measures to raise the awareness of social
workers to restorative justice and mediation.
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