New Guidelines for Implementing Mediation in Europe

The new guidelines were implemented by the Working Group on Mediation created in 2005 at the 3rd Summit of the Council of Europe Heads of State and Government. At its inception the Working Group was tasked with evaluating the impact of the various recommendations of the Council of Ministers related to mediation including Recommendation REC(99)19 Concerning Mediation in Penal Matters.

The first task of the Working Group on Mediation was to develop a questionnaire on the use of mediation in its various forms. The questionnaire was then sent to 16 representative member states for completion. The 52 responses from member states and mediation practitioners offered little information on mediation in penal matters. At the same time, the Working Group on Mediation noted that developments in the area of restorative justice since the drafting of the original recommendations have changed the landscape and broadened the scope for the practice of mediation in penal matters. For this reason, the group suggested the need for further research on the use of restorative justice in member states in order to update Recommendation REC(99)19.

Unsurprisingly, the survey revealed differences in the implementation of victim offender mediation in the member states. The working group identified various obstacles leading to this reality:

• lack of awareness of restorative justice and mediation,
• lack of availability of victim-offender mediation before and after conviction,
• power to refer parties to mediation limited only to a single criminal justice institution,
• relatively high cost of mediation,
• lack of specialized training and disparities in qualifications of mediators.

Taking these obstacles and the realities in the various member states into account, the working group developed non-binding guidelines around three broad categories:

• Availability
• • Support of mediation projects by member states
  • Role of judges, prosecutors and other criminal justice authorities
  • Role of social authorities and non-governmental organizations
  • Role of lawyers
  • Quality of mediation schemes
  • Confidentiality
  • Mediators’ qualifications
  • Participation and protection of minors
  • Codes of conduct
  • Breaches of codes of Conduct
  • International mediation
• Accessibility
• • The rights of victims and offenders
  • Cost of mediation for users
  • Suspension of limitation on terms
• Awareness
• • Awareness of the general public
  • Awareness of victims and offenders
  • Awareness of the police
  • Awareness of the judiciary and prosecutors
  • Awareness of the lawyers
  • Awareness of social workers

The Guidelines for a better implementation of the existing recommendation concerning mediation in penal matters are available online from the European Commission for the Efficiency of Justice.


February 2008