For over a decade, academics and civil society organizations have called for diversion processes, especially for young offenders. This work, strengthened by recommendations from the European Union, has resulted in legislation outlining the use of mediation and other restorative processes in a variety of contexts including criminal proceedings.  These include laws related to family violence and standards for mediators.

Chapter 5 (articles 19-22) of law number 217/2003 regarding domestic violence provides for mediation in such cases. Article 21 sets up a family council defined as “an association without legal personality and patrimonial aim, formed by the family members who have full legal capacity according to the law.’ A meeting of the family council is coordinated by a family member or a social worker working with the family. While the outcome of this meeting does not affect a criminal trial concerning the domestic violence, it offers an opportunity for family members affected by the abuse to meet and discuss an appropriate resolution for the family.

The May 2006 Law regarding the Mediation and the Regulation of the Profession of the Mediator addresses the use of mediation in civil, commercial, family and criminal matters. Reflecting values and principles found in various European Union and Council of Europe recommendations – such as the Council of European Union framework decision on the Standing of Victims in Criminal Proceeding and the Council of the European Union Directive relating to Compensation to Crime Victims – establishes mediation as an alternative means of resolving cases. The law also establishes the criteria individuals must meet in order to become mediators and the process for mediation.

The 2006 legislation outlines four steps for mediation:

1. request for mediation by one party and invitation to the other party
2. creation of a voluntary contract for the parties to participate in a mediation
3. organization of the actual mediation meeting
4. completion or non-completion of the mediation agreement closing the case

Chapter VI (Article 68(2)) makes special provision for mediation in family and criminal proceedings. It sets out the voluntary nature of mediation and allows for the majority of crimes to be referred to the process. According to Article 69 (1), the mediated agreement can take the place of trial when an agreement is reached prior to the commencement of a trial.


November 2006