Situation in Belgium
Mediation programmes are operated on several levels within the Belgian judicial system.
In the late 1980s a first pilot project was set up for juvenile delinquents. Right now mediation is offered for young offenders in each judicial district of Belgium. Files are referred by the prosecutor service while the case is being prosecuted or during the court procedure. Also, family group conferences are carried out.
In the 1990s criminal mediation projects were first introduced for adults in minor crimes. If mediation is carried out, the public prosecutor can drop the case and not prosecute under certain conditions. Victim offender mediation (VOM) is one of the possible forms of mediation, which can also be used in the case of serious crimes and in cases where the prosecutor has already decided to prosecute and a trial will be held. The mediation process itself takes place independently from the judicial system. but its result can influence the further judicial procedure since the judge can take its outcome into account. Both forms are regulated by legislative acts: the Act of 10 February 1994 on Criminal Mediation and the Act of 22 June 2005 on Victim Offender Mediation.
Mediation is also used at the level of the police, but only in a few cities. Here, cases of minor crimes are selected by the police, and most ofthe time the cases are not prosecuted afterwards, but there is no guarantee.
Last but not least, mediation is also carried out in prison when the punishment is being served. In 2000 the Minister of Justice decided that restorative justice practices should be used in prisons. Since November 2000 restorative justice advisers have been working in almost every Belgian prison and one of their tasks has been to facilitate communication between victims and offenders. Mediation was first started to be used in prisons in 2001 for convicted offenders and their victims. Mediation sessions were located outside the prison system in order to keep in line with the principles of restorative justice. Mediation started on an experimentál basis; the inmates of three prisons and all the victims in the Flemish part of Belgium were offered the possibility to join a mediation programme. We did not want to discriminate the victims whose offender was in another prison. Since the Act on Victim Offender Mediation each party involved in a crime can ask for mediation.
The philosophy of restorative justice
The philosophy of restorative justice is to bring victims and offenders into contact. It is about giving the conflict back to them, communication about the crime and its effects on both sides. Communication can be indirect (through the mediator as a go- between) or direct (in a face-to-face meeting).
Why VOM was started to be used after sentencing?
Sometimes it is not possibte to offer mediation before the trial. Often, the offer to mediate came too earty. it was too soon for even considering contact with the other side. This is connected with the process of coping with the crime.
Sometimes, the victims are also afraid that mediation might result in benefits for the offender and that is why they do not wish to participate in mediation before the trial. Also, it is recommended to offer mediation in all stages of the criminal procedure. But if victim and offender want mediation before the trial, it is possible even in severe cases.
Mediation programmes have three main principles.
The mediator is neutral. He/she is not ethically neutral and not only because in severe crimes it is impossible, but also because mediation in generál starts with the recognition of one party harming the other and accepting responsibility for his/her acts. However, the position of the mediator is neutral. The mediator takes care of the interests of both parties; he/she shows respect for both sides and treats them as equals. To ensure the neutrality of the mediator, it is important for the mediator's actions to be transparent.
The participation is voluntary for both parties. There will always be victims who do not want contact with their offender, and there is no reason why they should. One shall not try to convince them, their opinion shall be respected. It is the other way around; the need of those victims shall be answered who do wish to establish contact. To avoid re-victimization, victims must not be pressured to participate in any way.
It neither has any use to force an offender into dialogue with the victim. Although it can be argued that in serious cases, offenders should be coerced into participating in mediation if the victim wishes so, but in reality this would never work.
One of the consequences of this principle is that both parties can discontinue the mediation whenever they want. The mediator can only ask the offender to reconsider his/her decision as it could harm the victim again.
Mediation is confidential. The Act on Mediation guarantees confidentiality. Communication to courts is only permitted if both parties consent. In case of prison mediation, the prison is of course informed about the mediation process. It is prohibited to enter a prison with a victim without the consent of the prison board.
Mediation in practice
Mediation in prison almost always means mediation in "severe crimes". Long sentences are imposed for serious crimes like homicide, murder, manslaughter, armed robbery and sexual assault.
There are two questions that arise most. Is it possible to carry out mediation in these kinds of crimes? Even if it is possible, do parties want to participate in mediation? The answer to both questions is "yes". It is possible, mediation can be applied in such cases for over five years of imprisonment, and yes, people do wish to participate in mediation in these severe cases as well.
The bigger the impact of the crime, the bigger the need for mediation is. Victims will be re-victimized if these types of crimes are excluded from mediation.
Why do parties want to participate in mediation? The victim's side
There can be lots of questions about the crime, remaining especially in cases of homicides where the victims are the deceased person's relatives. They want to know details that are sometimes really small Ibut that are very important to them). For example: "Where was the car parked?" "Where is the other shoe, why was the key at that side of the door?" "Where exactly did you throw his body in the river? Because I can't find the place and it is important to me..."
They also almost always want to ask the question: "Why did you do it?" To ask that question is even more important than to get an answer, because there is never ever a right answer. But they want to know how the offender reactsto this question. Victims also often want to know if the offender is still thinking about the crime. "Does it still keep him/her awake?" "Does he/ she regret it?"
Sometimes victims also want to express something. They want to teli the offender what has happened to them; how they have been affected by the crime; what the offender took away from them. It can be very important to express feelings of hurt, sadness, anger, just to come clear with it.
Sometimes victims also want more information about the offender: "In which prison is he/she?" "Does he/she work there?" "When will he/she be released? Sometimes (but rather rarelyl they want a meeting in order to reconcile. This usually happens when offender and victim know contact with his children. In each other or are relatives.
Financial compensation is only very rarely the topic of mediation. Even if an arrangement is made for compensation, it is mostly symbolic.
The offender's side
The offender may feel the need to explain things, why he/she committed the offence (although in cases of murder this is the most difficult thing to do).
Often they want to apologize to their victims for the harm they caused to them. E.g. frequently some inmates want to write a letter to their victim. but they are not always encouraged to do so.
Sometimes they just want to restore, they want to do something, anything, for the victim, to answer their questions, listen to them, or to pay some form of compensation to them.
In crimes between people who know each other or who are related to each other, they want to restore contact.
Sometimes they want to settle practical issues.
As mentioned above, either party can initiate mediation. Mostly offenders contact the mediation service because mediation is well known in prisons. They are together in one building so it is easier to inform them about the possibility of mediation. It is a lot more difficult to inform the victims. Victims initiate mediation in only 10% of the cases. This is a problem in the Suggnomé's project which needs a solution.
Victim support organizations are informed, a book is written on the issue, and attempts are made to work together with the media to publish stories. Hopefully with the new law, which will oblige the judicial authorities to inform every party linked to a crime that they can ask for mediation, the number of demands from victims will increase. But at the moment, mediation is mostly requested by offenders.
There is a first conversation with the applicant to explain the concept of mediation and its principles to see if mediation is what he/she wants. We ask what the crime is but they are not requested to teli all the details. This is to protect their privacy, since it is not necessary to know all details of the case the parties decide not go along with the process of mediation.
Getting known their motivation is very important, not in order to select, but to inform the victim of the offender's motive to seek to participate in mediation. It is very important not to decide in their place! A mediator can never do the selecting.
Afterwards the mediator contact the victim by letter. If he/she is also interested in mediation, the mediator makes an appointment and then the mediation process can begin.
The parties decide how the mediation process will be carried out.
Sometimes the mediator is a go-between, but face-to-face meetings usually prove to be the most interesting option.
Within this project there have already been 84 face-to-face meetings.
Two things are very important at a face-to-face meeting. One is careful preparation. The mediator has to prepare both parties for what they will be confronted with, what they will see: anger, sadness, minimalism, questions, remorse and other emotions and then to let them choose whether want to go through the mediation process. If they do decide to take part in mediation, they can deal with a lot in the process.
The mediator has to take all the necessary time to prepare the meeting.
Preparation sometimes means also very practical questions like for instance the size of the table.
Support is as well very important. What do parties need for the meeting? What kind of support do they need, somebody sitting next to them, or somebody sitting opposite them, as well as care afterwards. The mediator has to balance the needs of both parties. And a good mediator can never forget about - the coffee...This could help a lot with breaking the ice.
A mediation process can last for several months. The result of the mediation may be taken into account for ordering of release on parole. It is also very important to provide support for the participants after the face-to-face meeting. For the mediator it is important to sometimes mediate with anothermediator or at least to be able to contact a colleague after such a meeting.
It is indeed very difficult to measure the results. How can it be proven that the fact that people sleep better, have less fear, dare to walk alone on the Street again, have better school results is the outcome of a mediation? Because this is what people are teliing the mediator?
According to the personal notice of a therapist, one mediation session has the effect of one year of therapy.
Source: "European Best Practices of Restorative Justice in the Criminal Procedure" Conference Publication, based on the conference named "European Best Practices of Restorative Justice in the Criminal Procedure".