Mediation in prisons and restorative justice around Europe and beyond
There are two documents of particular intemational importance. One of them is a document of the United Nations entitled Basic principles on the use of restorative justice programmes in criminal matters (2002) and another was published by the Council of Europe with the title Recommendation R(1999)19 concerning mediation in penal matters. The Recommendation provides a definition of mediation, which states that mediation in penal matters is: "(...) any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the crime through the help of an impartial third party (mediator)".
The principles of mediation according to the Council of Europe's Recommendation R(1999)19.
The recommendation of the Council of Europe provides some guidelines for mediation. The first and the second articles stress important elements - voluntary participation of all participants and confidentiality, ensured by the mediation service. As well as confidentiality, the recommendation also stipulates the mediator's impartiality in mediation. A sufficient degree of autonomy has to be provided for the mediation service. Mediation ought to be a service that is generally available to all that would like to use it. Therefore, legislation should facilitate mediation and find solutions for its wide application. Mediation should also be available as a possibility at all stages of the criminal justice process - as is the case, for example in Belgium according to relevant legislation.
Victim offender mediation in Slovenia
The Code of Criminal Procedure in 2000 provided a nationwide programme for the introduction of an alternative procedure for resolving petty crimes. Over the year 2000, a total number of 837 cases were successfully resolved through victim offender mediation. This also means that 837 less court hearings were held, which is the equivalent of the caseload of 5 judges and 7.5% ofthe total number of solved cases. From all the cases referred to victim offender mediation, 48% of them were resolved successfully and 52% of them were unsuccessful. This result might be regarded as satisfactory given that this form of mediation was still a new practice at the time and a lot of people were not familiar with it. The most frequent outcomes of mediation are the following: apology, compensation for damage and a combination of the previous two. The most frequent offences are theft, damage to property, fraud (which is unusually high in comparison to the European average), endangering safety and maltreatment.
According to relevant legislation, the State Prosecutor's Office is obliged to organise compulsory training courses for mediators in criminal matters. The first Introductory Training Course started in December 1999 and over the year 2000, 194 mediators dealt with an average of 8.6 cases each. In the same year the Supervisory Board was established in order to prevent misuses of mediation. A year later, in 2001, the first organization of mediators was set up - the Association of Slovenian Mediators. Now Medios is another active organization of mediators.
Development of the practice of mediation in the prison system of Slovenia
As already mentioned, in the year 2000, the Criminal Code introduced victim offender mediation as an alternative method for resolving criminal cases. The purpose of this solution was especially to achieve settlements between victims and offenders and between juvenile offenders and their victims. In the year 2007 the first training for mediators in prison was organised, which was attended by seventeen employees of the Prison Administration of Slovenia. An advanced training programme for mediators is also being prepared. All the trainings qualify workers in prisons to use mediation in formal and also informal ways in particular cases. Last year another introductory training for mediators was organized and eighteen prison administration employees attended and successfully completed it.
Cases suitable for mediation
Mediation in prison can be useful for different types of conflicts. One of the most suitable cases is when two prisoners are in a dispute. Prisoners are officially on the same status level, and therefore usually mediators do not need to put much effort into ensuring that there is a feeling of equality between the parties during the process. Conflicts between prisoners can range from petty disputes, for example if somebody's belongings have gone missing to more serious cases such as assault. Addressing a conflict between a prisoner and a guard is more difficult because of the differences in their statuses. Even if officially there is no hierarchy between them, an informal notion of separation and inequality is still present. The situation is similar when a conflict breaks out between a prisoner and a member of the pedagogical team who is, from the prisoners perspective, a part of the disliked "system". Mediation can also be a useful tool in conflicts between prison administration and employees. The mediator can facilitate a mediation process between the prison and the prisoners in cases such as strikes, especially hunger strikes. The mediator can also use his/her skills to mediate between prisoners and their relatives who are not necessarily involved in the conflict. but are having communication problems.
Uncertainties and dilemmas
There are a few uncertainties and dilemmas concerning the use of mediation in prisons. One of the obstacles lies on the side of the staff, because guards and the pedagogical team are usually not in favour of new methods being forced on them. Some of them also think that mediation would mean extra work for the same salary. Some degree of fearfrom the unknown is also present, usually because of superficial knowledge on mediation. Prisoners on the other hand have difficulties trusting the process as such and they especially question the notion of confidentiality. The structure of the penal system is not too elastic and willing to except innovations such as mediation. The fear that prisoners will abuse the service is also present sometimes. All those fears and uncertainties are mostly connected with the concept of mediation not being presented in a clear way to prison staff and prisoners. Many fears and obstacles could be eliminated through further clarification of the concept of mediation and further practice.
Providing appropriate mechanisms for the full establishment of mediation in prisons still remains a challenge. Additional funding, trainings and staff are necessary in order to provide better services. There is also a lack of supporting legislation for the use of mediation in prisons. Successful cases are needed as examples to be able to better promote mediation. In fact, examples of successful mediation processes can be the best tools for establishing mediation services in prisons. On the other hand, we do have to be aware of the fact that there have been cases where mediation was misused, and these can cause much harm to all parties involved. Training and supervision is therefore essential.
Organizing trainings for mediators in prisons and attracting new prison administration employees are planned to be continued. In cooperation with NGOs, trainings in the field of restorative justice, especially victim offender mediation, are being organized for mediators. Organizations of mediators actively participate in shaping legislation concerning mediation. Setting up suitable mediation services inside and outside of prisons still remains a great challenge for mediators in Slovenia.
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".