Tools in Network: an E-Net Approach to Sharing Mediation Competences.

Introduction

1. At the Third Summit of the Council of Europe (Warsaw, May 2005), the Heads of State and Government undertook to make "full use of the Council of Europe's standard-setting potential" and "promote implementation and further development of the Organisation's legal instruments and mechanisms of legal co-operation". They also decided "to help member states to deliver justice fairly and rapidly and to develop alternative means for the settlement of disputes".

2. In the light of these decisions, the CEPEJ, one of whose aims in its Statute is "to enable a better implementation of the international legal instruments of the Council of Europe concerning efficiency and fairness of justice", has included among its priorities a new activity directed towards facilitating effective implementation of Council of Europe instruments and standards regarding alternative dispute settlement.

3. The Working Group on Mediation (CEPEJ-GT-MED)1 was therefore set up to gauge the impact in member states of the relevant recommendations of the Committee of Ministers, namely:

- Recommendation Rec(98)1 on family mediation,

- Recommendation Rec(2002)10 on mediation in civil matters,

- Recommendation Rec(99)19 concerning mediation in penal matters,

- Recommendation Rec(2001)9 on alternatives to litigation between administrative authorities and private parties,

and to recommend specific measures for facilitating their effective implementation, thus improving implementation of the mediation principles contained in these recommendations.

4. This document concerns Recommendation Rec(99)19 concerning mediation in penal matters. The three other Recommendations, which concern family mediation, mediation in civil matters and alternatives to litigation between administrative authorities and private parties, require a specific approach and are examined in separate documents.

5. At the first meeting of the Working Group (Strasbourg, 8-10 March 2006), a questionnaire was drawn up to determine member states' awareness of the above Recommendations and the development of mediation in their countries in accordance with the principles contained therein. The questionnaires were sent to 16 representative states.

6. 52 replies were received to the questionnaire from member states and from practitioners and a report was drawn up by Mr Julien LHUILLIER (France), scientific expert, summarising those responses. However, limited information was supplied on mediation in penal matters. Since the adoption of the Recommendation, the concept and scope of mediation in penal matters has developed, and a broader concept of "restorative justice" has emerged, including "victim-offender mediation"2. Therefore, it is suggested that further work should be undertaken on updating the Recommendation. Before doing so, it would be necessary to have a fuller evaluation of the impact of restorative justice in member states based on up-to-date and comparable data.

7. As might be expected, there are considerable differences between member states in the way that victim-offender mediation has advanced, particularly because of the following obstacles:

- 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.

8. In the light of these obstacles and in view of the fact that restorative justice processes may serve as an alternative to conventional justice, and as a tool for conflict management, but also in view of its potential to repair harm and to reduce reoffending, the Working Group has drawn up the following non binding guidelines to help member states to implement the Recommendation concerning mediation in penal matters.