When we talk about mediation as a method of conflict resolution or management, we are always struck by an area in which it seems almost impossible to mediate: the criminal justice system. It must be taken into account that the people who could be part of the mediation process have had a relationship as a consequence of the commission of a crime, sometimes known to each other, but in the majority of them, unknown until the crimes occurred. criminal acts.
That's why the big question is, could we mediate a criminal case? The answer is yes.
This area is expressly excluded from the regulation that we all in Spain refer to when we talk about mediation, such as the 2012 Law, but it is understood that not because it is prohibited, but because it deals with aspects merely of private law.
We can seek its recognition in the different regulations that arise from criminal law (historically it has even been common to reach extrajudicial agreements, although we would not therefore speak directly of mediation, especially related to reductions in sentences, given the recognition of the facts or even alleviate the economic damages caused to the victims) but above all to say that recently, its basis is found in article 15.1 of Law 4/2015 of April 27, of the Statute of the victim of crime. This article states that victims will be able to access restorative justice services in the terms determined by regulation, with the aim of obtaining adequate material and moral reparation for the damages derived from the crime.
That's why it seems very important. differentiate criminal mediation from what we call restorative justice.
We understand criminal mediation as the negotiation to identify and reach reasonable agreements on the mutual needs and interests of the parties involved in a crime, while Restorative Justice includes needs that encompass the emotional level, understanding the feelings that arise and narration. of history becomes the center of attention of the process.
What is the basis for criminal mediation?
- On the one hand, it ensures effective protection for the victim, by repairing or reducing the damage caused.
- It holds the offender responsible for the consequences of his crime, while reducing criminal blameworthiness (mitigating) and providing him with means to normalize his life.
- Restores the validity of the norm and community dialogue, rebuilding the social peace broken by crime
- Returns prominence to civil society
Mediation takes into consideration the real causes of the conflict and its consequences, seeking the most suitable formula to satisfy the personal needs of the victim and offender.
While if we talk about himto restorative justice, we will expressly focus on a process aimed at involving, to the extent possible, all those who have an interest in a particular offense, and collectively identifying and addressing the harms, needs and obligations arising from said offense, to heal and amend the harms. The best way possible. That is, the latter is based on affected values and principles.
Lately we have had a great dissemination of this type of mediation intervention, on the occasion of the dissemination of the film “Maixabel”, a feature film that tells the story of the murder of the Basque politician Juan María Jauregui and the trial that led to his wife Maixabel Lasa, from the initial denial of the horror experienced, to the restorative meeting, provided by mediators, with her husband's murderers.
Learn to work
The important thing about this area is that you have to learn to work with fear, hatred, anger, pain, frustration, indignation, helplessness, helplessness, helplessness, fragility, rage, overwhelm, depression, etc.
This does not disappear with the arrest and trial if the causes that motivate it are not addressed, since if we talk about the victim we met with:
- Desires for revenge since their interests never seem satisfied and the victims normally do not consider themselves compensated
- The victim does not find a place in the development of the criminal process and is often barely informed of its evolution.
- Nor is their damage treated or redirected, leaving their wounds unhealed for a long time.
On the other hand, if we talk about the perpetrator:
- Issues such as drugs, racism or retail sales, overwhelm penitentiary institutions and are not a solution
- Prison does not prevent recidivism many times due to the work that is carried out with them
- The alternatives to prison will be: suspensions, sentencing situations or work for the benefit of the community and... others that are difficult to reach our system (supervised release, mediation...)
- They also need a mediation process and Restorative Justice to have a space and be able to explain themselves.
But I would not like to leave this post without at least mentioning what process would be followed, because it allows me to visualize this type of mediation.
To consider
It is necessary to take into account who could be the people involved in a process to the extent of their roles, perhaps not only in what we call mediation, but directly or indirectly involved in its final success:
- Accused and victim, protagonists of the mediation since the reparation agreement will be included in the Sentence
- Criminal Magistrate, who will select the procedure when entering the Court
- Prosecutor's Office, which once the case is selected by the Magistrate will show its agreement or not
- Mediation Team, made up of Mediators, who as independent professionals, will carry out the “accused-victim” mediation
- Lawyer for the accused and victim, who will inform his client about the advantages he can obtain, and will accompany him if he considers it appropriate.
To process the file, as established by the protocol followed and promoted by the General Council of the Judiciary, the mediation team would receive a copy of the complaint, the statements of those affected on one side or the other, the document of accusation of the prosecutor's office and also a copy of the defense brief.
After learning about the matter and seeing what happened, what we call occurs. PHASE OF WELCOME TO THE COMPLAINANT. In it, they are interviewed and an attempt will be made to learn about the complainant, their perception of the facts that are the subject of the process, as well as their emotions, feelings and attitudes towards the judicial procedure and towards the possibility of mediation itself. In particular, efforts will be made to become aware of the damages and losses suffered as a result of the criminal act, the consequences of all kinds and the expectations and needs to be compensated or repaired.
Then we would proceed to PHASE OF WELCOME TO THE RESEARCHER. Likewise, in the interview with the accused person, an attempt will be made to learn how he or she personally assesses his or her legal situation vis-à-vis the Administration of Justice, his personal and social history, the presence of personal and family problems that may have a direct relationship with the evolution. of the mediation process and the eventual adoption of an agreement, and any other circumstance that, assessed as positive in the light of the desired result, the mediated party and the accused voluntarily want to transfer to the Mediation Team.
After these two situations, the team of mediators, in view of the results of the individualized interviews, decides on the possibility of mediation and only in that case will it seek to bring the positions, reflected in their aspirations and feelings, closer together, towards an agreement that satisfies both parties. both people. A joint interview may be sought between the two parties, provided it is considered convenient and the parties consent, but it will not in any case be a requirement to reach an agreement. It's what we call DIALOGUE MEETING.
If the situation has been satisfactory and a AGREEMENT Between the parties involved, a document will be drawn up that includes it, including a detailed Repair Plan, clearly expressing the commitments acquired, with the effects desired by each one. Likewise, the number of sessions held and anything else that is important for the Court to know will be reported.
Don't stop approaching this type of process, it teaches us a lot about what we work on in many other areas and areas: fear, frustration, disbelief, distrust...
