Mutual exchange of data and information about restorative justice

Programma Comunitario Grotius II Penale

Dr. Christa Pelikan (Institute for the Sociology of Law and Criminology, Vienna):

On Europe’s Diversity

It is not easy to draw a picture that has a clear and stark profile, free from ambiguities. In fact, I would venture the contention that such a picture would not portrait the reality of VOM in Europe adequately. Nevertheless, I will do my best to tell you something that leaves an impression of what counts, what is important and what developments lie ahead of us.

Introduction

What are we talking about: very briefly I want to recall what we are talking about - and I will therefore refer to the definition put forward in the Council of Europe Recommendation NoR (99) 19: On Mediation in Penal Matters (Médiation en matière pénal) (henceforth: ‘the Recommendation’) It reads 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).

I want also to refer to work I have done for the Criminological Scientific Council of the Council or Europe where I have placed the VOM practices in the broader context of Restorative Justice. There I have put forward three main elements that are constitutive for Restorative Justice:

The social or life-world element, i.e. the perception and handling of events and acts that have come to the attention of the Criminal Justice System (CJS) within their social context including relational and emotional aspects.

The participatory element, i.e. the active involvement of the parties concerned.

The element of ‘making good’, i.e. of balancing the harm or damage inflicted on someone by beneficial acts or services rendered to this person or group of persons, i.e. to the victims themselves.

These elements are, of course, closely interrelated. The full promise and the full potential of Restorative Justice are realised when and where all these elements bear relevance on the CJS of our societies. Finally, I want to make a statement that I deem most important and that ought to be repeated again and again, (as a kind of ceterum censeo): VOM is about victims and offenders. It is neither predominantly about the victim nor is it first and foremost about the offender, it is about what happened between people, it is about the experience of hurting or harming somebody and the experience of being harmed or being hurt.

Development of VOM-programmes in Europe: a Diachronic Account

On the Motives for Introducing VOM

In the course of designing and writing the Recommendation I have - in my role as chair - attempted to assess the socio-political constellations and forces that are responsible for a country to become active in developing programmes and policies that assign mediation in penal matters a place inside or at the fringes of the CJS. Meanwhile we find explanations and enumerations of the relevant and influential factors in most of the articles describing the situation regarding VOM in a country. I want to reduce the multiplicity of factors to those that have overall significance. It is: the experience of shortcomings of the CJS and the expression of this experience by either NGO’S, predominantly victim support organisations, by theoreticians or by member s of the CJS; but it needs also - and this sounds at first sight paradoxically; a basic trust in the agencies of the CJS and in their potential to react in a proper way to incidences that are perceived as delinquent acts.

As already said: apart from these basic preconditions we find a variety of features both with regard to the socio-political structures in a country, the type of the CJS, and the activity of significant individuals inside and outside this system that account for the mode of instigating and implementing VOM programmes. Personally I could give you a precise account of how and why VOM came into being in Austria - and I have repeatedly told this story referring to it as the Austrian miracle. The miraculous part is that the success of the fist pilot project came unexpected, albeit hoped for - and in addition: it is always a bit of a miracle if the right persons, the right ideas and certain favourable socio-political structures are coming together at the right place and at the right time. This coincidence was has also emphasized e.g. by Siri Kemeny telling the story of the Norwegian legislation relating to VOM. In other words and speaking as a sociologist: There is a lot of contingency that marks the development of VOM in Europe. And it is not easy to identify a pattern or a bundle of conditions that inevitably will bring about a certain result, thus giving us direction and guidance.

A Typology of Countries

Nevertheless - I have made an attempt at finding some kind of pattern when doing the follow-up study I have put together on behalf of the Criminological Scientific Council. I have outlined a typology of countries according to their readiness to use the Recommendation and the degree of influence it has exerted. On the request of Professor Ernesto Savona, also a former member of the Criminological Scientific Council within the CoE I have undertaken an update of this report which I am going to present. This update is based on information assembled by David Miers (UK) and Frederico Marchez (Portugal) as members of the Information committee of the European Forum for VOM and Restorative Justice, and - albeit restricted to VOM for juvenile offenders - in the course of another GROTIUS project led by Anna Mestitz and Simona Ghetti at the Istituto di Ricerca sui sistemi giudiziari in Bologna in cooperation with Inge Vanfraechem of the Katholieke Universideid Leuven and me and my institute, the Institut für Rechts- und Kriminalsoziologie, in Vienna. I have added a few items by personally asking reliable resource persons. According to my investigation we can discern:

Vanguards that did not take much notice of the Recommendation because they did not deem it necessary. The examples are Austria, and to a lesser degree Norway. I will come back to those examples later.

Countries where the Rec served as an important instrument of providing orientation and support and even made its mark on developments in legislation - the examples being Finland, Slovenia. Cyprus, to some degree also Poland, Belgium and Spain. I want to say a few words about Slovenia, your neighbouring country:, because it presents a real interesting example concerning the introduction of VOM and the influence of the Recommendation: Slovenia has implemented a nation-wide program of VOM in 2000 (following the establishment of a number of pilot projects) There VOM is a diversionary measure with the state prosecutors being the referring agency; referral can take place at all stages of the criminal procedure until a conviction has taken place (‘a judgement has been passed’). In April 2004 an amendment of the Code of Criminal Procedure has further broadened the possibilities for VOM. Up to this date, a case could be referred for mediation if the sanction prescribed for the criminal act in question was up to three years of imprisonment. Additionally, according to the amendment of 2004, the State Prosecutor may now also refer a case for mediation, if: the case involves a juvenile offender and the sanction prescribed is up to five years of imprisonment; in addition, if regardless of the age of the offender, the offence in question is grave bodily harm, burglary, concealment of a property of an important value or damaging other person’s property of an important value (all mentioned offences may be punished with imprisonment of five years) or extremely grave bodily harm (sanction prescribed is up to ten years of imprisonment). The number of referrals is quite high and has remained fairly stable. It was 2158 cases in 2002 (2237 in 2000 and 2071 in 2001). Considering that the total number of cases prosecuted in Slovenia in 2002 was around 13.000 and the total number of cases where an offender was convicted (regardless of the type of the sanction pronounced) in 2002 was around 7.000 this represents a substantial , even a stunningly high amount of cases that went the VOM-track. In her article in the Newsletter of the European Forum, Alenka Meznar, state prosecutor and former member of the Committee of Experts, that has drawn up the Recommendation has also stressed the personnel savings effect of VOM for the Criminal Justice System (837 court hearings less, which corresponds the caseload of almost five judges of local courts) The role of the state prosecutors’ office as the referring agency is a strong one; on the other hand, Slovenia has opted for volunteer (lay) mediators (Norway has explicitly served as a model there). Direct mediation prevails - also following the Norwegian example. The lay mediators are to undergo training covering a range of subjects and skills and lasting a few days. Interestingly, the State Prosecutor’s Office is responsible for organising this training and it has also established an Advisory Board to supervise the work of the mediators. A degree of independence is guaranteed though by the ‘Association of Slovenian Mediators’ that was founded in December 2001 as a NGO.

Countries where the Recommendation has mainly been noticed and used by NGOs and individual professional outside the criminal justice system and thus exerted some limited influence in this category we see mainly Eastern European countries, e.g. the Czech Republic, Bulgaria, Albania, also to a very limited degree Russia. Summarising their experiences I have stated: In this group of countries it was NGOs advocating VOM who have been taking recourse to the Recommendation. In this way the content of the Recommendation welded some influence on the way of establishing VOM programmes and designing practice and training. The examples of Albania, Bulgaria and Russia, (partly also the case of the Czech Republic) impart an ambivalent message: in these countries - at least at the surface - a European document is highly valued and carries considerable weight; on the other hand it becomes obvious that the voice of a few academics commenting on the document does not suffice to make an impact with decision-makers; they are easily pushed aside and neglected. NGO’s taking on the policy lines recommended, might remain equally marginalized. They are left with too few resources to make a real headway. I might add at this point that this is a situation the European Forum is trying to improve - with the help of European (AGIS) programmes for promoting exchange.

Countries where the Recommendation has contributed to and enhanced a national policy of establishing VOM. Here I have placed, France and Germany. The UK constitutes a very special case, where in fact the

Recommendation played only an insignificant role - if any at all. I want therefore shortly dwell in this case. The UK as a ‘common law’- country was early in launching a large amount of VOM programmes. They represented a wide array of different approaches. The latest count done by the umbrella organisation ‘Mediation UK’ as referred by David Miers and Michael Semenchuk lists 222 local mediation projects on its website and indicates that roughly 60% of the UK is served by a local mediation service. (Miers/Semenchuk, unpublished paper, 2003) From the late 1990`s the government became more active in promoting programmes and this interest has finally found its expression in the establishment of a special Restorative Justice Unit within the Home Office. In 2001, The Review of the Criminal Justice System (the Auld Report) had recommended the "development and implementation of a national strategy to ensure consistent, appropriate and effective use of for restorative justice techniques across England and Wales". The Review identifies six stages at which restorative justice might be applicable within the conventional criminal justice process. In 2002, Justice for All (Home Office, 2002) confirmed that the Home Office is developing a national Restorative Justice strategy. It voiced the intention to consider the availability of restorative justice across all age groups and at all stages of the criminal process: pre-crime, especially with juveniles, pre-charge, post-conviction, pre-sentence, and post-sentence. Within the realm of juvenile justice there exists a system of mandatory referrals, to use the categorisation introduced by David Miers. It implies that a youth court before which a young offender makes a first appearance and pleads guilty must impose a referral order. This type of legal requirement concerning referral is supposed to be stronger than legislation that makes referrals coercive, i.e. ordering the referring agency to use discretion in each case that comes to its notice and fulfils the preconditions stated in the law. while the permissive legislation type makes only a recommendation to consider mediation as a potential intervention mode. In England and Wales VOM has indeed become a measure available at all stages of the CJS. Most remarkable is its placement at the level of the police with the example of the Thames Valley Police having introduced within its organisation a Restorative Justice Department with Restorative Justice sergeants executing/performing ‘RJ-modalities’ in their own competence. The case of Germany is suited to exemplify the developments or the stories of influence that are typically to be found in this group. The answer I had received two years ago from the responsible person in the Ministry of Justice read thus: "the main development in the area of ‘Mediation in Penal Matters’ has already been extensively implemented" and "this happened prior to the timeframe indicated in the questionnaire (the past tree to four years)" Notwithstanding these facts, we find new legislation of December 20th 1999 that was intended to further enhance the already existing insertion of VOM in Criminal Procedural Law. It stated: "Public prosecution offices and courts are expressly charged with the duty of examining, in every stage of the proceedings, whether it may not be possible to arrive at a mediated settlement between the accused and the victim of a crime. The conditions for a termination of proceedings have been specified and enlarged." Martina Hemmersbach had therefore summarized that "Due to the ‘parallel coursè of the Recommendation and this legislation, the influence of the Recommendation alone on the VOM-situation in Germany cannot be gauged. However, the discussion in Europe on mediation in penal matter has unquestionably positively fuelled the corresponding discussion in Germany" Legal provisions concerning VOM in Germany are rather complicated though and therefore Michael Kilchling has voiced the presumption that they might result in the referring agencies refraining from sending a case to one of the numerous mediation services - about 300 (two large state agencies and numerous private NGOs) in all over Germany. Following a discussion last year in Bielefeld on the topic of the application of VOM in cases of partnership violence I got indeed the impression that effective policy is partly hampered by subtleties of interpretation and dogmatics that distract from more practical problems of VOM and its relation to the CJS. In Germany initial and advanced training of mediators is organised to a large extent by the ‘TOA Servicebuero’ which is also engaged in elaborating quality and qualification standards for mediators. They can be assessed as professional standards - with volunteer mediators playing only a very limited role. I will refer to these issues at a later point. Finally

Countries where the Recommendation has contributed to the introduction of VOM. Here we find the Netherlands, Sweden, Portugal, to some degree also the Republic of Ireland. I have also placed Italy there because - according to my reference person Vania Patane from the University of Catania - the introduction of a bill that should amend the provisions concerning juvenile offenders to make VOM more easily available and more widely used was largely affected by the Recommendation. Let’s shortly turn to Portugal as an example of the dynamics at work here: The fact that Portugal appeared reluctant to adopt any diversionary measure, and also the mode of reaction described as VOM, can to some degree be explained by the adherence of its judicial system and its protagonists, the prosecutors and the judges, to the principle of legality with the opportunity principle gaining ground only slowly. As is the case also in the Republic of Ireland, new measures that follow the recommendation to introduce VOM have so far been only established for juveniles. In Portugal this has happened within the ‘Educational Guardianship Law’ (Lei Tutelar Educativa - Law 166/99, of September 14th) This Act applies to young persons aged 12-16 years. The judicial authorities (state prosecutors or judges) act as the referring agency and the organisation operating the new mediation programme is the Social Rehabilitation Institute. This institute, characterized by the reference persons Joao Lazaro and Federico Marques as ‘auxiliary body in the administration of justicè, acts on the basis of a ‘Despatch of its President’, that deals explicitly with the implementation of mediation within the Educational Guardianship Process. In Portugal it was - besides the Ministry of Justice - mainly the Portuguese Association for Victim Services that took notice and started to use the Recommendation in supporting the goals the organisation had set itself. And also the Social Rehabilitation Institute pointed to the content of the Recommendation to justify the practices they regarded appropriate. One has to be aware though that due to the placement of VOM with the Educational Guardianship Law, in Portugal mediation is bound to the educational goals that are essential for this law, or put differently: it is perceived mainly as a rehabilitative and educative measure. But in that it does not stand alone!

A synchronic picture: opposing examples

I will in this part use the method of contrasting cases to bring out more strongly the significant features of VOM-programmes and practices.

Austria and Norway

As mentioned above, these countries that can be characterised as vanguards, Norway and Austria have introduced VOM on a nationwide scale and based on legislation already in the 1980s. Interestingly, they present opposing models regarding their respective position vis-à-vis the CJS and even more important: the recruitment of mediators, with Norway relying on volunteers, Austria on professionals with lengthy training. Norway has recently undergone an organisational re-launch. VOM services that have until the beginning of the year 2004 been the administrative responsibility of municipalities, albeit with a budget from the Ministry of Justice have now the state directly as an employer. Not much has changed though concerning the structures and the activities of mediation centres. Administrative change took also place In Austria, within the big agency responsible for all criminal justice related services ‘Neustart’ the former Association for Probation and Social Work. But it has not substantially affected the work and the practice of Austriàs VOM service: the ‘Auszergerichtliche Tatausgleich (ATA). But due to overall tendencies in criminal policy orientation the number of referrals especially so with regard to juveniles shows a marked decrease. We experience a continuous drain of interest, and we don’t see any new initiatives to have VOM programmes established at other stages of the CJS as happens in Norway, where family conferencing is seriously considered and programmes are being prepared.

As already said, the most prominent feature marking the two countries and their VOM-models as opposing, is the use of volunteer versus professional mediators. And one has to add that due to the professional profile of its mediators, Austria serves as an idea-giver for VOM-practices. There is a wide array of different methodological approaches depending on the type of the case that is at stake.

On the other hand - and this is quite remarkable: in both countries the emphasis is on direct mediation - more exclusively so in Norway, but also in Austria indirect mediation takes place only where a face-to-face-meeting is explicitly not wanted by the

parties, or not feasible out of different reasons. (e.g. for criminal acts that are utterance of anti-Semitism; they are then sometimes dealt with by the help of a substitute victim, one of the special methodological devices designed for a specific purpose.)

The case profile in the two countries is quite different, with mainly acts of vandalism and shoplifting marking the caseload in Norway, while acts against the person - slight bodily injury, dangerous threat and robbery are dealt with in the Austrian VOM. And to a considerable degree, cases of partnership and domestic violence constitute the caseload. Special procedures have been designed to handle these cases - and these methods have attracted attention of mediators beyond the Austrian borders, in Germany, and Switzerland, but also in the Czech Republic. The use of professionals corresponds this case profile. Working with this type of offences affords special skills - and a lot of experience.

In Norway on the other hand, VOM is applied to a large degrees in cases involving children under the age of criminal responsibility (which is 15 yeas). In 1998 the main group of offenders consisted of young boys between 15 - 17 years of age, but already the second largest group were children from 12 to 14 years. I It is important to keep these widely differing case profile concerning the type of offences and the age of the clients in mind when comparing the VOM practice in Austria and in Norway respectively. But this comparison shows also two societies with a different social and political history and with inhabitants that have different sets of expectations. In Norway the orientation toward community activity and self-help is quite alive. Doing volunteer work is seen as an expression of reliance on the community and its potential and of responsibility towards the community. And when conflicts that have come to be noticed as criminal acts become diverted, people are glad for once NOT to be confronted with psychologists and social workers taking over. In Norway a general scepticism regarding professionals seems to prevail: Siri Kemeny has written, when explaining why the VOM services are also used by people seeking mediation with family problems: "Some people find it easier to turn to the mediation service where they are met by volunteers and not some kind of expert that examines them with x-ray eyes and a professional air’ (Kemeny, 2003; unpublished paper) In Austria the opposite is true: there is a strong trust in professionals ( I do have empirical evidence for this finding derived from several research projects) and there is very little sense of community. To put it even more strongly: community in the sense it is alive in Nordic or in Anglo-American countries does not exist! Therefore the professional model is deemed quite appropriate.

Expanding further on the theme of volunteers versus professionals it might be helpful to turn once more to the example of Slovenia characterised above. It has adopted the Norwegian approach concerning the use of volunteers but with a significant difference: the influence of the state prosecutors as the referring agency appears much stronger than in Norway. Although I have been told that state prosecutors do not give directives concerning the mediation process itself, they are supervising general standards of the performance of mediation services. To the eye of the observer from outside the low rate of successfully concluded cases in Slovenia is remarkable and raises questions. We have to perceive this rate against the background of very high referral rates though. Thus it could be either the quality, i.e. the suitability of cases referred, that makes VOM quite often too difficult to perform, or it could also be the lack of skills of the lay mediators that is responsible for a high number of failures. The question remains open and would need to be scrutinized on the spot. Tacking stock of the experiences outlined so far, it becomes clear that one cannot confidently point to one of these models and declare it best or second best. They represent responses to different historical situations and to different preconditions. The respective models are only to a small degree the outcome of a deliberate and rational choice made by the responsible criminal justice agencies. Complex figurations of influencing factors, of persons and institutions and their respective powers contribute to a certain result. Finally, we do have only scarce evidence as to which VOM practice established and followed proves successful in the long run.

I’ll try to tackle this question in the following chapter.

What makes for success?

What is success? Measurements of the success of a VOM-programme have to take into account the wider social and legal policy orientation entailed by VOM as part of a Restorative Justice approach. They reach beyond criminal law tasks of general and individual prevention, beyond the rehabilitation and re-socialisation of the perpetrator and beyond securing safety for the society. I want to remind you once more that VOM owns the main elements, or qualities of starting from the life-world experience of victims and offenders, that it is participatory and oriented toward restoration and compensation, i.e. making good the wrong that has been done.

Therefore a successful VOM-programme is one that takes care of both victim and offender and achieves compensation and restoration in a wider sense. It does so by way of: furthering and assisting the achievement of agreements; restoring the victim’s material, mental and emotional harm providing the offender with an opportunity to do something beneficial in lieu for the harm he/she has afflicted to another person and to gain from that experience; preventing the offender through this experience from repeating acts that infringe on other peoples rightful claims to personal integrity and to the integrity of their possessions.

Finally: A good programme is one that achieves the still more far-reaching effect of giving people within the wider supportive networks of both victim and offender the experience of dealing in an active, responsible and sensible way with wrongdoing and the detrimental effects this wrongdoing has on social relationships in these networks/communities Assessments and evaluations, let alone evaluations of a comparative kind that will guide us to identify the programmes that stand up to these requirements and to standards of excellency do exist only to very limited extent.

VOM and Its Relation to the CJS

Especially with regard to this most important feature of a VOM-programme, we do not know whether one type is preferable to the other. This is also not a matter of free choice. The mode of relation to the CJS depends on the structure of the CJS of a given country, whether it stands in the common law or in the civil law tradition and - most important - whether it adheres to the principle of legality (obbligatorietÀ) or to the principle of opportunity. David Miers has explained the difference in a way that makes it easily understandable: He says: "Prosecutors in England and Wales initiate criminal proceedings using criteria that include the public interest as a value in the prosecution of offences, but these criteria do not bear the same coercive force as does the principle of legality. This imposes an obligation on prosecutors to prosecute cases brought to their attention." (A Comparative Review Restorative Justice and VOM in Europe, DIKÉ Seminar, Lisbon, September 2003, p.8) For quite some time the notion prevailed that it is much easier to have VOM programmes established and growing in societies/countries belonging to the common law system with its wide scope of discretion for the police, for prosecution and for the courts. History has proved that this difference does not really count and that countries with a strong principle of legality as well as those with a common law tradition can find ways and did indeed find ways to introduce VOM. The cases of the two pioneer countries, Austria and Norway might illustrate this, Austria, adhering to the principle of legality while Norway’s system is closer to the principle of opportunity. Both have introduced VOM on a nationwide scale at an early point in time - in each case based on legislation, that makes VOM a generally available service. The legislation is of a different type in the two countries: in Norway there is a special law - rather a type of social policy legislation, supplemented by ‘soft law’, circulars pertaining to the prosecution services. In Austria we find Criminal Procedural Law provisions, a ‘diversion packagè, that was preceded by a special section in the new Juvenile Justice Act of 1989, opening the opportunity for the state prosecutors to refer cases to the VOM services (the ‘Auszergerichtliche Tatausgleich - ATÀ) The example of Austria has proved those wrong who maintained that VOM cannot be established in a civil law jurisdiction with a strong principle of legality. VOM was an important breakthrough for softening this principle in Austria - first with regard to young offenders only - and for the state prosecutors remaining the ‘masters of the criminal procedurè by opening up new realms of discretion to them. The diversionary mode of connecting VOM to the CJS is meanwhile in place in most of the European civil law jurisdictions - in its purest form in Austriàs prosecutorial diversion, while diversion at the discretion of the judge at pre-trial level happens only as a subsidiary provision, and is indeed a very rare event in practice. In that regard the Austrian model differs considerably from the German VOM practice that places discretion with the courts both at the pre-trial and the trial stage, and also - in the case of young offenders - as part of the sentence and as condition of probation. The latter is highly controversial because of its ‘punitivè (as Michael Kilchling says) character that is in fact incompatible with the principles of VOM - as stated in the Recommendation. It touches upon the question of the voluntariness of participation in VOM, which will b dealt with below. VOM as a diversionary measure at the pre-trial phase is quite common in Europe, we find it also in Belgium, in the Czech republic, in England and in Finland, in Norway, Poland and Portugal. If it is diversionary in its true sense it always implies an offer made to the parties, both the offender and the victim and its successful closure by agreement (and its fulfilment) is followed by a discontinuation of the procedure. One could say that VOM in the diversionary mode of insertion into the CJS constitutes a substitute or replacement of the conventional track of the criminal process. The two models - (a) the concrete, relational, participatory and reparation-oriented VOM model and (b) the formal, offender-oriented related to the conventional criminal procedure - remain separated. Yet, the VOM-process becomes - within the limits of its ‘temporary autonomy’ - the functional equivalent of the conventional criminal procedure.

The Autonomy of VOM

Within the diversionary mode we can discern a variety of different approaches The relevant parameter is the dependence or autonomy in relation to the CJS. Firstly; autonomy is explicitly stated as one of the principles to be observed when introducing VOM. The Recommendation has stated: "Mediation services should be given sufficient autonomy within the criminal justice system" In that respect autonomy is rather high in Norway; the prosecutor at the police level (a specific feature of the Norwegian CJS) serves as the most important referring agency, but it is not the only one. A small number of cases - neighbourhood and family conflicts - are sometime brought directly to the mediation services, A case that is closed successfully at the mediation services is reported back to the referring prosecutor together with a copy of the agreement. No more action is required on the side of the agencies of the CJS. In case of no agreement reached the criminal procedure might continue or a second attempt of mediation is to be initiated.

An example of a high degree of dependency on the CJS exists with regard to the position of individual mediators in France. They work very close under a kind of supervision by the prosecutors. One has to consider though that these individual mediators account only for the smaller part of all VOM cases done in France, the larger part being referred to NGO’s that work with trained volunteers and enjoy more independence.

Considerable dependency on the state prosecutors holds also for ‘penal mediation’ in Belgium where court or ‘justice assistants’ working close to the state prosecutors do the job of mediators. A reliable assessment of the degree of autonomy or dependency is not possible. As Ivo Aertsen has outlined in his account of ‘penal mediation’ in Belgium, legal provisions, or soft law regulations might differ considerably from the practice observed. (Aertsen 2000). And - as already stated - it is even more difficult to make a statement which model is to be preferred according to the criteria of ‘success’ outlined above, A hint can be derived from a small piece of comparative research done by Marianne Löschnig-Gspandl and Michael Kilchling in the Mid-Nineties. They had collected data on VOM in the Austrian province of Styria on one hand and in Baden-Württemberg in Germany on the other. It points to more favourable results concerning the agreements reached and concerning victim satisfaction for Austria where directives of state prosecutors were rather unknown while they happened quite often in the German programmes. (Kilchling/Löschnig/Gspandl 1998)

Despite the lack of more empirical research I will put forward a recommendation based on observation of VOM-practice and scientifically guided reflection on this issue. It is a recommendation based on the principle contained in the Recommendation, concerning the autonomy of mediation services. The mode of relation between VOM-programmes and the CJS that allows the potential of VOM to unfold, but also preserves the achievements of positive criminal law, i.e. protection of the rights of the alleged perpetrator is ‘temporary autonomy’ or, in the words of Leo van Garsse, head of the mediation service ‘Suggnomé’ in Leuven, Belgium, - the semi-internal position. (Van Garsse, 2002) What does this imply? Temporary autonomy means for the mediation work being carried out without interference from the CJS-agencies, that retain discretion as to the referral and retain also discretion as to continuation or discontinuation of the procedure (discharge)

This temporary or ‘conditional autonomy’ should indeed leave space and time for handling the case according to the inner dynamics and the rationale of the mediation process, this process being guided by the principles or of impartiality and of confidentiality and by the working principles of ‘recognition’ and empowerment’ informing the interventions of the mediator. Realising temporary autonomy does not depend on the stage or phase of the CJS where the VOM-programme is located. Concerning VOM at different stages we do find again a ‘general principlè stated within the text of the recommendation, stating that VOM should be available at all stages of the CJS. But we find only few examples of VOM at either the police level or at the post sentence level or in the prison. Interestingly, Suggnomé in Belgium is also active at the prison level - and there according to Leo van Garsse - the same recommendation concerning the semi-internal mode of insertion applies, This is the mode I have called ‘temporary autonomy: To repeat: the VOM-process ought to have ‘a room of its own’ to unfold its specific rationale and the quality to be derived from following as closely as possible its guiding principles.

Concerning VOM at the police level: this will be dealt with in the chapter on the issue of voluntariness. Summarising this chapter on autonomy I want to state that until to date only few countries have VOM initiatives on other levels of the CJS than the prosecutorial and/or the pre-trial phase. The arrangement I have called temporary autonomy of VOM is to be recommended for all stages conceivable. But at that point we should take a look at programmes and modes of insertion that go beyond the diversionary mode and at the achievements and advantages attached to them.

The Limits of Diversion

Although diversion at the state prosecutor’s level is the most frequently adopted mode of inserting VOM into the CJS, it has severe shortcomings. Diversion at this stage - inside a civil law jurisdiction with little discretion at police level - is bound to be restricted to cases of minor or middle range severity, if not petty cases. Now we do have empirical evidence, mainly from Anglo-American projects (Sherman/Strang, 1997; Marshall 1996), but there are also bits and pieces of evidence to be found in the accompanying research I have done in Austria (Pelikan 1988) - that the positive effect on victims is greater and more pronounced when it is used with more serious crime: "‘Use RJ for serious not trivial crime" Lawrence Sherman has pleaded on the occasion of an International Seminar on Youth Crime at the Home Office in London (October 2002).

The project ‘Mediation for Redress’ was initiated in Leuven at the beginning of 1993 with the explicit purpose to try out a programme that could bring the new ‘restorative paradigm’ to its full potential; "to explore to which extent VOM was a viable method for the most serious crimes", as Ivo Aertsen has written. Although within the Belgian ‘Mediation for Redress’ project the state prosecutor makes the referrals, it applies to cases where prosecution and a criminal procedure are already on the way. The mediation process runs alongside or parallel to the criminal process. Usually a letter is sent out by the state prosecutor to the victim and the offender with the offer to participate in VOM. VOM is a lengthy process. Proceeding carefully, with communication via the mediator for the most part. Where a face-to-face meeting takes place, this happens only after careful preparation on both sides: the offender and the victim. The results of the accompanying research done by researcher from the University of Leuven (Ivo Aertsen and Tony Peters) show that more than the agreement itself, the proposal for mediation and the communication between the parties have a meaning in their own right. (Aertsen 2000).

This is an outcome that is valid also for programmes at the prison level. Only shortly: voluntariness for both parties, an offer that is not bound to benefits to be gained from participation on the side of the offender and most careful preparation seem to be the preconditions for success in the terms outlined above:, namely to take care of both victim and offender and achieves compensation and restoration in a wider sense.(cf. Eyckmanns/Dufraing/Regelbrugge 2002) In any case, the Belgian experiences give a clear indication that considering VOM-programmes whose mode of relation to the CJS goes beyond diversion may be a worthwhile criminal policy goal to follow. In general we can say that VOM programmes at the sentencing level are more suited to include more severe offences. There VOM is not a substitute for the criminal procedure but complementary to it and affects a criminal law response. In other words: the agreement as to material and/or non-material compensation is to influence the sentence of the court that has offered the restorative effort.

Voluntariness

It is also clearly stated in the Recommendation - but it did not remain uncontested. As already said, coercion concerning mediation is a contradictio in objecto, because for the process of mediation to be set in motion, it needs the active involvement of the parties concerned and this kind of inner activity or commitment cannot be forced on people. In several countries controversies have ensued concerning the strict application of this principle. E.g. it remains controversial whether the judge can make an order for VOM. In Germany as well as in Norway where orders of that kind exist, starting the mediation process depends on the consent of the parties though.

This is different from the practice of the Thames Valley Police in England, where VOM at the police level is part of ‘restorative cautioning’ and enforced upon the perpetrator. Voluntary participation of the victim is respected though. You might hear quite convincing arguments from the protagonists of this model (cf. Polllard 2002) and evaluation that does exist concerning the work of the Thames Valley Policès Restorative Justice Unit (Hoyle et al., 2002) ) have found restorative cautioning more effective than traditional cautioning in reducing the risk of re-offending (although the authors acknowledge that a larger scale re-offending study is required to confirm the validity of this finding). The satisfaction of victims and offenders with the fairness of the procedures was also quite high, albeit depending on the police mediators following the ‘restorative script’ and not falling back into police investigation techniques. One has to add though that the overall rate of victim participation in the process was disappointing. (This seems to be a general drawback with the restorative programmes in the UK: Research in England and Wales has shown that despite assertions that victims ought to become actively involved in VOM as far as possible, there is very little of this participation realised in the work of the new Youth Offending Teams (YOTs) (Miers/Semenchuk 2002))

In this place I want to give some brief information concerning programmes of restorative cautioning in the Republic of Ireland, because there the principle of voluntariness is observed meticulously and to a degree that is quite astonishing. If the offer of participation in the restorative cautioning’ or in ‘Family Conferencing’ is opted against by the perpetrator or if he/she drops out of the process there are no consequences at all: either traditional cautioning takes place or - in the case of family conferencing - another attempt at reconvening the group is made. Kieran O’Dwyer (2002) of the Garda Research Unit, a police unit that is a pioneer in doing restorative police work, has carefully listed the pros and cons of voluntary participation and has finally made a convincing case for voluntariness.

I would like to join his arguments and propose to observe the principle of voluntariness to the greatest extent possible. As Kieran O’Dwyer has said, this is also beneficial for the victim who feels less under pressure to "do the right thing’ and will participate in his/her own interest which in turn makes a beneficial outcome more likely.

The topic of voluntariness has also some bearing on the position of young offenders, of children and juveniles in the VOM process. We see a completely different understanding with regard to a young person’ s competence to take part in the mediation process and to give his/her free consent. In France, the protective component prevails, it is used seldom and the parent or guardian has to be present in VOM. In Norway and in Finland on the other hand, VOM is supposed to be especially suited for children and the volunteer mediators do it routinely. Research does exist for Finland - and reading it carefully and looking behind the surface of facts and figures raises some doubts: It would be beyond the scope of this paper to go into it more deeply. (Eskelinen/Iivari 2003)

Volunteers and Professionals and the Place of the Communiy

The reliance of a model on either volunteers or on professionals makes for a big divide in Europe (and around the world) The two opposing models of Austria and of Norway can in that respect truly be called ideal-types. In Austria, VOM is performed by professional mediators, called ‘Konfliktregler’. This profession has in fact been built and developed in the course of ‘doing’ the first pilot project where experienced probation social workers were confronted with the new task of standing in-between the victim and the offender. From the beginning it was clear that this task requires not only special skills but a specific professional ‘habitus’ (Pierre Bourdieu). Meanwhile training goes for a three-years-period but consist mainly of on-the-job practical training, i.e. observing and working side by side with an experienced mediator. In addition there is a series of seminars both theoretical and practical. This is also the place to mention that the profession of the mediator is characterised by a paradoxical quality: intervention is geared toward making him/herself ‘redundant’ as much as possible. He/she has to bring forth the capacity of the parties to work through their own ‘conflict’. It is a profession that should not take hold of the conflict but enable the people to re-appropriate it and to handle it themselves. I have mentioned already in a footnote the two working principles of mediation, ‘empowerment’ and ‘recognition’. Both are processes in themselves and both need quite a lot of understanding, of ‘feeling’ and of experience to be deployed and to become an integral and effective part of mediation.

In Austria the application of VOM to cases of partnership violence has further promoted the development of specific methods and designs deemed appropriate for the handling of these cases. The ‘methods of mediation’ applied go far beyond the usual three or four- phases-models routinely used in most mediations and VOM-procedures. There is a whole range of different methods that have to be chosen according to the specific requirements of a specific case.

Turning to Norway: In Norway volunteers are recruited from the community (usually by official advertisement); each mediation service has professional full-time staff who is responsible for administration, for the selection and training of the mediators and for their support and supervision. Training is very short (four days), but there is ongoing team supervision (as is the case in Austria) The Norwegians tell us that volunteer mediators provide a link to the community and this is regarded as very important (They do have the usual problems though to find mediators representing a sufficiently broad spectrum of the community and are not exclusively middle class people) They handle - as I have outlined so far - mainly petty offences with young people and they do so quite successfully, i.e. the vast majority of cases end up with an agreement. An evaluation done in 1996 showed high rates of offender and victim satisfaction (98% and 95% respectively) (Paus, 2000)

Victim satisfaction in Austria as it has been assessed by a few smaller studies is less high; (78% for men, 63% for women in one study; in another study 83% of both victims and offenders indicated a ‘high or very high’ satisfaction.) But we know from the more carefully done studies that there is also criticism on some of the mediators, e.g. when the highest percentage of respondents attribute the greatest influence on the outcome to the mediator and also when 16% consent to the statement that they had no opportunity at all to contribute to the outcome.

My own research on VOM in domestic violence cases has brought forward evidence of mediators’ intervention that were highly appreciated and that had ‘visibly’ an empowering effect on women. But it also showed shortcomings of mediation, e.g. a very narrow ‘routinè application of sequences of methodological steps and the lack of exercising real ‘recognition’. (Pelikan/Hoenisch, 1999) Finally: any community involvement is completely missing in Austria - it is not even considered an issue. By and large, the clients and the professionals seem to be quite content with the professional profile of the Austrian VOM. To go at this point more deeply into the topic of community involvement, exciting as it might be - is beyond the scope of this presentation.

I want to give you a short overview of the distribution of the different models concerning professional and volunteer mediators in Europe: Germany follows the professional model, also the Czech Republic, so does Belgium, the Netherlands and Spain. We have both volunteer and professional mediators in France, volunteers in the UK, in Finland, in Poland, in Portugal and in Slovenia.

A few more words concerning Slovenia: Slovenia follows as I have mentioned the example of Norway: It has a high rate of VOM cases in relation to the whole number of prosecutions and is has a rather low percentage of successfully concluded mediations. It could be that the size of complexity presented by the cases referred being much higher than in Norway, makes it often too difficult to handle for the lay mediators. Maybe it would help to have a bit more of professionalisation - at least for certain types of cases.

On the other hand: In Germany, a discussion on the use of volunteer mediators has been going on for some time. The reason is the high costs of purely professional programmes. The most promising models developed seem to work according to the Norwegian model: with professional staff and trained volunteers. And most important: It seems essential to have active teams of volunteers and professional staff working together and mutually supporting each other.

Therefore my conclusion: It seems worthwhile to consider the use of well trained volunteer mediators on the condition that they are working in a well structured team with professional mediators. Specification with regard to certain types of cases and the development of specific methods, e.g. for domestic violence cases is recommended.

Direct Versus Indirect Mediation

We do find in those countries that have well established programmes and evaluation-studies dealing with victim and offender satisfaction, one interesting finding concerning the type of mediation that makes for more success. This is the use of direct mediation as opposed to indirect or shuttle mediation, In Austria, the accompanying research (Hammerschick/Pelikan/Pilgram 1994) and also one of the smaller evaluation studies ((Altweger/Hintzl 2000) and the study of Marianne Löschnig-Gspandl and Michael Kilchling comparing the provinces of Styria in Austria and Baden-Württemberg in Germany all have pointed to the fact that direct mediation makes for more victim satisfaction and for the victim’s perception of the perpetrator as having taken responsibility. In addition compliance with agreements is also higher where direct mediation has taken place. Apart from this empirical evidence there is a lot more of anecdotic evidence from various countries that makes it advisable to strive for "maximum feasible victim involvement" and to resort to direct mediation wherever this appears possible. And this brings us to the last issue I want to cover:

The Place of the Victim

There I return once more to my ceterum censeo concerning VOM: it is neither victim-centred nor purely offender-centred - it is about what happened between people, it is about the experience of hurting or harming somebody and the experience of being harmed or being hurt.

If we attribute the victim a prominent place within VOM in that it is not a mere instrument of the offender’s rehabilitation or ‘responsibilisation’, then we have also to be careful to protect his/her interests. If we strive for maximum feasible involvement and participation, we must also abide by the principle of voluntariness. Let’s look again at two opposing examples: Austria with a high rate of victim participation and England and Wales with a low one (we have to admit that this implies a generalisation, considering the enormous variety of VOM-programmes existing in England). In Austria we had from the very beginning a frank and trusting attitude in inviting victims to participate in VOM - and we were rewarded by the surprisingly high readiness of victims to cooperate. According to my findings in the accompanying research (Pelikan 1988), the attitude of victims in Austria was mainly one of perceiving the offer of VOM as something sensible and ‘normal’. To them it just made sense to get together with the perpetrator to find out what has happened and to get some explanation and compensation for the harm, the irritation, the hurt experienced. This was not regarded as a an altruistic performance, it was well serving onès own interest. I have learned meanwhile in the course of many exchanges, seminars and conferences that this was different in England. The vulnerable victim was the guiding image, a victim that out of his/her altruistic feelings of responsibility took part in mediation and was then prone to being taken advantage of and ‘used’. Victims were thus approached only reluctantly. The first conclusion I would like to draw is that it pays to have trust in victims’ capacities to take actively part in mediation and thus to serve their own interest. BUT: We have also to be aware that victims might indeed be pressured into a process that is strenuous and demanding and that affords personal resources to derive an advantage from it. We have to be aware that by and large VOM-programmes are mainly offender-oriented and that mediators might find it difficult to fully recognise the victim and to fully pay homage to the principle of voluntariness.

At the APAV-conference in Lisbon, Gerd Delattre from the TOA-Servicebureau in Germany, mediator and VOM administrator with almost 20 years of experience has in strong words pointed out this situation - taking into perspective the requirement for the training of VOM-mediators. He said: "Anybody who is prepared to submit an offer which is meant to be suitable for both parties involved; who is willing to base his/her actions on the general principle of all-partiality, voluntary participation, equality of chance and fairness; who is willing to really take part in the so-called ‘equilibristic dancè between the world of victims and worlds of offenders should be familiar with the worlds of victims and not only have some superficial knowledge of it." He continues to enumerate the elements of training: knowledge about victims’ rights and offers of support; knowledge about the phases of managing the effects of an offence; involvement of victim support organisations; knowledge about traumatisation; and finally: respecting a victim saying ‘no’. On this last point he has been dwelling more intensively, drawing on his experience as a trainer, stating that "Every training should aim at enabling the participants to hear a victim saying ‘no’ and to respect this no.

"In this regard this is also a contribution to the issue of professionals versus volunteers - an opposition Gerd Delattre deems of minor relevance. He contends that the place the victim is given in VOM depends on the attitudes of the mediator, of his having the importance of this place ‘internalised’ and of effectively (professionally?) controlling his interventions. He doubts though that a short training course can include the intensive analysis of victims’ perspectives needed, even less so the kind of experience that is required to develop onès own coherent method and ‘handwriting’ as he called it. He concludes that it is necessary "to offer training of at least 120 hours to have enough time to include important elements as counselling among colleagues, learning in groups and dealing with onè own reaction to conflict."