Penal mediation

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Penal mediation is probably perceived as a specific kind of mediation. This is indeed the only type of mediation that is initiated by the prosecutor and not by a judge. It also has the exclusive particularity that the mediator in exercise cannot be a jurist by profession, at least in France since there are lawyers who exert penal mediation in Luxembourg for example.

Three conditions are necessary in order for the prosecutor to intend recourse into mediation:

  • The existence of an offense
  • Identification of parties
  • Declaration of a complaint

There are several forms of penal mediation. To be more convenient we distinguish: mediation which mainly aims at repairing a link or relationship (neighborhood, family, casual) and mediation which mainly aims at repairing a damage or prejudice (thefts...). Each of these forms of mediation involves particular difficulties and is not treated in a same manner.

[edit] Mediation which Mainly Aims at Repairing a Link or Relationship

Mediations which mainly aim at repairing a link or relationship are related to offenses caused by conflicts (most often, it concerns assault and battery, or degradation marking the culmination of extremely tense relationships, like family abandonment).

Penal mediation requires a real effort to resolve the conflict. All the techniques of communication must be implemented; the offense itself is put in the background.

Here is an example of a mediation which mainly aims at repairing a family link. "A mother lodges a complaint against her daughter for trespassing her property, thefts, assault and battery, assault actually recognized by the girl. During the interview, each of them expresses their truth; one of them has already said it during a previous interview and repeated it in front of the other. Sometimes it's hard for me to prevent one of the parties from reacting because of oversensitive emotions. The other one speaks when it is her turn.

Then, I try to involve them to start a dialogue. I summarize the facts mentioned at the beginning and like that, I can initiate the dialogue. Often times, there is either party who speaks a lot while the other speaks much less. I try to balance the speaking time between the parties involved. I let them get angry; they need it: it is often a necessity. Thereafter the dialogue can start. They recall the facts point by point. I let them keep talking until they find a common ground. Unless it takes too long, since they will indeed resume talking about the same things, I finally interrupt and stop them. And from then I can talk about compensation. I suggest the complainant to say what she wants. The mother explains and finally did not ask for the return of the stolen objects, but requested the right to visit her grand-daughter since her daughter prevented her from seeing since the dispute. To end with, the mother and daughter are reconciled, and also the daughter committed herself to mediate with the other children in order to restore normal family relationships.

This example among others shows that the strictly penal aspect is secondary in most mediations which aim at "repairing a link" and that the purpose of mediation is this repair and not the offense itself.

[edit] Mediation which Mainly Aims at Repairing a Damage or Prejudice

The mediator's role is to lead the victim to express and to make understand his injury and his need of repair to the other party. The most important and delicate part of my work is to really let people communicate in such conflictual conditions, make the idea of repairing arise from the questioned party, define an effective repair and reinstate some confidence.

Thus, even if the offense outweighs the conflict, the aid in communication between the parties that the mediator enables cannot be denied.

The mediator submits a report about his achievement case to the prosecutor. He merely noticed the success or failure of the mediation process. He is nevertheless allowed to provide information as long as he respects confidentiality principle. He may indicate objective facts without sharing his personal viewpoints: for example he can indicate if the parties came or not to the mediation interviews, the refusal of either or both parties, the number of meetings, etc... He may also explain why in some cases the mediation process has lasted so long (absence, etc...). But never in his report, the penal mediator describes the content of the exchanges that had the parties and does not include the various elements or documents they have communicated.

Penal mediation can be considered as a specific practice of mediation but for this the penal mediator must be methodologically and ethically well trained.

Because penal mediation is steadily growing, and since it is free, it can reach all population groups, approach all types of conflicts and aim the public to discover this mode of conflict resolution.

Penal mediation is therefore an excellent promotion for mediation in general.

By Mireille Bernasconi

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