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

Availability

9. To expand equal availability of mediation services, measures should be taken to promote and set up workable mediation schemes across as wide a geographical area as possible, at all stages of the criminal justice procedure, including the execution of sanctions.

Support of mediation projects by member states

10. Member states should recognise and promote existing as well as new workable mediation schemes by financial and other forms of support. Where successful mediation programmes have been established, member states are encouraged to expand their availability by information, training and supervision.

Role of the judges, prosecutors and other criminal justice authorities

11. Judges, prosecutors and other criminal justice authorities have an important role in the development of mediation. They should be able to give information, arrange information sessions on mediation and, where applicable, invite victims and/or offenders to use mediation and/or refer the case to mediation. Member states are encouraged to establish and/or improve co-operation between criminal justice authorities and mediation services to reach victims and offenders more effectively.

Role of social authorities and non governmental organisations

12. Member states are encouraged to recognise social authorities, victims support organisations and other organisations engaged in the criminal justice system, since they have an important role in promoting restorative justice and mediation. Where applicable, such bodies may invite victims and/or offenders to use mediation. They may for example have a role in conducting mediation, in offering different forms of restorative justice as well as in supporting the parties.

Role of lawyers

13. The codes of conduct for lawyers should include an obligation or a recommendation for lawyers to take steps to provide relevant information and, where appropriate, suggest the use of victim-offender mediation to parties and plead for referral to mediation by the competent authorities.

Quality of mediation schemes

14. It is essential for judges, prosecutors and other criminal justice authorities when referring parties to mediation, for lawyers when advising clients, and for the general public confidence in the mediation process that the quality of mediation is assured.

15. It is important that member states continually monitor their mediation schemes and ongoing pilot projects and arrange for their external and independent evaluation. Certain common criteria, including both qualitative and quantitative evaluation aspects, should be developed to enable the quality of mediation schemes to be compared. Legislators and/or criminal justice authorities of member states are encouraged to identify possible consequences of mediation and mediated agreements on criminal procedures.

16. In view of the imbalance of power between the victim and the offender following a crime, member states should be aware that the needs of the victim require special consideration before, during and after the mediation. For this reason, member states are recommended to carry out further research and developments in this matter.

Confidentiality

17. The duty of confidentiality should be binding for the mediator at all stages of the mediation process and after its termination. Whenever this duty is subject to exceptions, these exceptions should be clearly defined by legislation.

18. Members States should provide for legal guaranties of confidentiality in mediation. The breach of the confidentiality duty by the mediator should be considered as a serious disciplinary fault and be sanctioned appropriately.

Mediators' qualifications

19. Member states and/or mediation stakeholders should provide adequate training programmes for mediators and, taking into account the disparities in training programmes, set up common standards concerning the training.

20. As a minimum, the following items should be covered in mediation training:

- principles and aims of mediation,

- attitude and ethics of the mediator,

- phases of the mediation process,

- basic knowledge of criminal justice system

- the relationship between criminal justice and mediation,

- indication, structure and course of mediation,

- legal framework of mediation,

- skills and techniques of communication and of work with victims, offenders and others engaged in the mediation process, including basic knowledge on reactions of victims and offenders,

- skills and techniques of mediation,

- adequate amount of role plays and other practical exercises,

- specialist skills for mediation in cases of serious offences and offences involving minors,

- various methods of restorative justice,

- assessment of knowledge and competence of the trainee.

21. This training should be followed by supervision, mentoring and continuing professional development.

22. Member states should recognise the importance of establishing common criteria to permit the accreditation of mediators and/or institutions which offer mediation services and/or who train mediators. Because of the increased mobility throughout Europe, measures should be taken to establish common international criteria for accreditation as, for example, a certificate of European mediator, etc.

23. As certain member states encounter problems where the quality of training of mediators is concerned, national training institutions are recommended to establish links and/or to establish a continuous training programme for mediators and for mediation trainers (for example, a European training centre). This could be facilitated by the Council of Europe in co-operation with the European Union.

Participation and protection of minors

24. Member states should recognise the importance of supporting and protecting minors during their participation in the mediation process by the establishment of adequate safeguards and procedural guarantees.

25. Member states should work together to examine, evaluate, and identify good practices in order to establish specific guidelines to the participation of minors in mediation in penal matters. This could be facilitated by the Council of Europe in co-operation with the European Union.

26. These specific guidelines should include:

a. the relevance of the child's age or mental maturity and its consequences for the involvement of the minor in the mediation procedure;

b. the role of parents, in particular in those situations where parents may oppose participation in mediation;

c. the involvement of social workers, psychologists and/or legal guardians in mediation when minors are present.

Codes of conduct

27. Member states should take measures to ensure the uniformity in the concepts, scope and guarantees of the main principles of mediation such as confidentiality and others within their countries, by legislative measures and/or by developing codes of conduct for mediators.

28. Having in mind that the European Code of Conduct for Mediators in civil and commercial mediation is gaining general recognition by various mediation stakeholders throughout Europe, it is recommended that a special Code of Conduct shall be elaborated with respect to the particularities of mediation in penal matters.

Breaches of codes of conducts

29. Where mediators breach a code of conduct, member states and mediation stakeholders should have in place appropriate complaints and disciplinary procedures.

International mediation

30. Discharges based on mediated agreements should have the same status as judgments or other judicial decisions, if they are taken by official judicial staff, e.g. member of the office of the public prosecutor or judge. Such a decision will preclude prosecution in respect of the same facts in another member state (ne bis in idem).