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CONTENT
Editorial in English 69 Editorial n Romn 71 Why RJ? 73 Where is restorative justice heading? 79 Privatised probation: is payment by result compatible with restorative justice? 96 From Boardroom to Living Room, does mediation fit all? A personal view 108 What are the similarities and differences between commercial and community mediations? A personal view 111 Justiia Restaurativ n Romnia de la teorie la practic 116 Despre ineria sistemului juridic i eficientizarea medierii 126

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Editorial
We are pleased to launch our first special edition dedicated to mediation and restorative justice. We had the honour to receive some inedit and current materials regarding restorative justice in Great Britain and mediation in Romania and Great Britain. We hope that the present issue will inspire and motivate those involved in this specialty to further support the growth of these methodologies. We also hope that this edition will be a starting point for new approaches in mediation and restorative justice in countries that wish to adopt or already adopted mediation and restorative justice as practical forms of intervention in the justice system. We are grateful, as always, to those that continue to support us and this time, warm regards to the authors who answer affirmatively to our invitation to submit materials for this special edition: Lawrence Kershen, QC, mediator and facilitator and with a background as a Chairman of the Restorative Justice Council in UK; Dr. Theo Gavrielides, Founder and Director of Independent Academic Research Studies (IARS), Adjunct Professor at the Centre for Restorative Justice of Simon Fraser University; Dr. Martin Wright, mediator and facilitator and senior research fellow at the Faculty of Health and Life Sciences, De Montfort University; Kate Jackson, commercial and community mediator; Jane Cooksey, commercial and community mediator; Dr. Ana Blan, mediator and vice-president with Romanian Society of Criminology and Criminality; Oana Raluca Ciceu, jurist and master student in social work within justice system at Babe Bolyai University. We launch this special edition with a material that provokes us asking Why RJ?. The subjects included here relate to the need for an over-arching body that will promote the RJ agenda nationally, the importance of effective governance in such an organisation, the need for a communications strategy that will inform and inspire all levels of the community, and the essential role that standards play in promoting effective RJ and its acceptance by the public. The second material presents some of the possible future directions of restorative justice. The paper identifies three opportunities for restorative justice, alerting the restorative justice movement that if it does not restore the damages caused by its own power-interest battles, it will soon be diminished. Another interesting subject presents the link between probation and restorative justice in England context. The article examines the consultative document, a central feature of which is to privatise much of the probation service on the basis of payment by results. The second part of this first special edition approaches the mediation phenomenon, from which, we can say, restorative justice emerged.

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The fourth article analyzes two common forms of mediation in Great Britain: commercial and community mediations. Commercial mediations are surely companies haggling over money and community mediations involve the personal issues of warring neighbours. However, in reality the issues in each often start with something as basic as human emotion. The following article continues, from a psychological perspective, to analyse these two forms of mediation. As the author says, the difference between these two forms of mediation relies on the approaches of the people to the mediation and the concerns that they bring to be resolved. It is these aspects that create the need for a mediator to have some different approaches. What happens in Romania regarding mediation and restorative justice? The penultimate article reviews restorative justice in this country, referring to mediation. Starting with 2006 mediation in Romania has a legal support and it can be implemented for criminal justice cases as well. The last material of this edition analyses the legal support, we mentioned previously, which makes possible implementing mediation in Romania. We hope this special edition that focus on mediation and restorative justice will arouse your curiosity to read and online debate. Thanking you once again for your interest and support, we are wishing you a pleasant reading! PROBATION junior Team

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Editorial
Suntem ncntai s v aducem n atenie primul nostru numr special care abordeaz temele medierii i justiiei restaurative. Am avut onoarea s primim o serie de materiale inedite i de actualitate privind justiia restaurativ n Marea Britanie i medierea n Romnia i Marea Britanie. Ne dorim ca numrul de fa s inspire, motiveze i s pun pe gnduri pe acei specialiti preocupai de cele dou subiecte propuse i de ce nu, s constituie un punct de pornire pentru noi abordri n mediere i justiie restaurativ n ri care doresc s adopte sau au adoptat deja medierea i justiia restaurativ ca i abordri reale n sistemul de justiie. Suntem recunosctori, ca de fiecare dat, celor care n continuare ne susin i de aceast dat, calde mulumiri autorilor care au dat curs invitaiei noastre de a publica n acest numr special: domnul Lawrence Kershen, consilier regal (QC), mediator i facilitator n justiie restaurativ, i fost preedinte al organizaiei Restorative Justice Council n Marea Britanie; Dr. Theo Gavrielides fondator i director al organizaiei Independent Academic Research Studies (IARS), profesor adjunct n cadrul Centrului pentru Justiie Restaurativ al Universitii Simon Fraser din Canada; Dr. Martin Wright, mediator i facilitator n justiie restaurativ i cercettor n cadrul Facultii de tiine Umane, Universitatea De Montfort; Kate Jackson, mediator comercial i comunitar; Jane Cooksey, mediator comercial i comunitar; lector univ.dr. Ana Blan, vicepreedinte Societatea Romn de Criminologie i Criminalistic i mediator; Oana Raluca Ciceu, jurist i masterand n cadrul Universitii Babe Bolyai Cluj-Napoca n asisten social n spaiul justiiei. Aadar, lansm aceast ediie special cu un material care ne provoac s ne ntrebm De ce justiie restaurativ?. Temele din acest articol fac referire la nevoia existenei unei organizaii de ansamblu care s promoveze justiia restaurativ la nivel naional; importana unei guvernri eficiente n cadrul unei asemenea organizaii; nevoia unei strategii de comunicare care s informeze i s inspire la toate nivelele societii; rolul esenial pe care standardele le au n promovarea unei justiii restaurative eficiente i n acceptarea acestui fenomen de ctre publicul larg. Cel de-al doilea material prezint cteva dintre posibilele direcii de viitor ale justiiei restaurative. Articolul identific trei oportuniti ale justiiei restaurative, alertnd c micarea justiiei restaurative, dac nu restaureaz prejudiciul cauzat prin propriile puteri, va fi n curnd redus. Un alt subiect interesant prezint legtura dintre probaiune i justiie restaurativ ntr-un context britanic. Articolul examineaz documentul consultativ al guvernului britanic, un element central a crui privatizare a sistemului de probaiune st la baza plii n funcie de rezultate.

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Cea de-a doua parte a primei noastre ediii speciale abordeaz fenomenul medierii, cea din snul creia putem spune c s-a nscut justiia restaurativ. Articolul patru analizeaz dou forme foarte comune n Marea Britanie ale medierii: cea comercial i cea din comunitate. Medierea comercial/corporatist se refer la nevoia companiilor de a ajunge la un consens privind banii, iar medierea comunitar implic nevoi personale ale unor vecini nemulumii. n realitate ns cazurile, indiferent dac vorbim de corporaii sau de simpli ceteni, au la baz emoiile umane. Urmtorul articol continu dintr-o perspectiv psihologic s analizeze cele dou forme ale medierii. Diferena dintre cele dou forme de mediere, spune autorul, const n abordarea pe care oamenii o au fa de mediere i specificul problemelor pe care le dorest rezolvate. Motiv pentru care un mediator are abordri diferite atunci cnd acioneaz n comunitate, n disputele dintre vecini i atunci cnd are de-a face cu un mediu corporatist. Ce se ntmpl ns n Romnia privind medierea i justiia restaurativ? Penultimul articol face o trecere n revist a justiiei restaurativ n aceast ar, fcnd trimitere la mediere, cea care din 2006 beneficiaz i de un suport legal i care poate fi implementat i n cazurile din justiia penal. Ultimul material din aceast ediie analizeaz suportul legal de care aminteam adineauri i care face posibil implementarea medierii n Romnia. Sperm ca aceast ediie special dedicat justiiei restaurative i medierii s v trezeasc interesul pentru lectur i dezbatere online. Mulumindu-v nc o dat pentru interesul i suportul acordat, v dorim lectur plcut! Echipa PROBATION junior

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Why RJ?
Lawrence KERSHEN QC18 The use of mediation and Restorative Justice is developing across the world. Experience of these complementary dispute resolution methods has been built for longer in some cultures and jurisdictions than in others. This article aims to identify some of the benefits and pitfalls inherent in the adoption of these processes, and Restorative Justice in particular. The article is a personal and subjective account of the authors experience in this field over the past 15 or so years, both as mediator and as a Board member of the Restorative Justice Council. It examines some of the key learnings to be derived from this experience that might be relevant to those interested in developing the field. The main themes that emerge are the need for an over-arching body that will promote the RJ agenda nationally, the importance of effective governance in such an organisation, the need for a communications strategy that will inform and inspire all levels of the community, and the essential role that standards play in promoting effective RJ and its acceptance by the public. It has been written in the hope not only that it will encourage and guide others who see the potential of RJ but may be at an early stage of its implementation, and also to help them to avoid some of the wrong turnings that can be taken in any process of trial and error, that is learning by experience. I should start with a disclaimer I am no academic, and no theoretician. I share the reaction of a mediator colleague and friend who was asked to make a presentation on mediation to an Australian university. At the end, one of the professors present leaned back in his chair and said to her: Well I can see it works in practice but does it work in theory? It was years of practice as a barrister, a trial lawyer, in the courts of England and Wales that gave rise to my enthusiasm and even passion for mediation and restorative practice was born of. And after many years toiling at the coalface of the law, both civil commercial and criminal, I found myself saying There have to be better ways of doing this. 1967, the year I was called to the Bar, was a time of upheaval in society, in consciousness and for me personally. The Vietnam War was raging, young people were outspoken in challenging the status quo and the theme for many was Make Love not War. For me there were the challenges of finding my place as a barrister and yet remaining true to principles of individual freedom.

Lawrence Kershen has facilitated commercial and other mediations since he was accredited as a mediator in 1994, and more recently as a restorative practitioner. With a background as a barrister, he was a board member and latterly Chair of the Restorative Justice Council from 2003 to 2012.

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As I made my way in the adversarial legal system, it showed itself to be a particularly useful instrument for identifying issues, and sometimes for extracting the truth extracting also being the description of a dentist pulling teeth. It seemed however a particularly blunt instrument as a way of resolving differences between people, businesses, organisations and institutions, of making peace between them. So when in 1994 I discovered that the word mediation was different from meditation, or even medication, I was intrigued, then inspired. I had become familiar with a process where the winner takes all, or worse, where the winner comes out of court saying: Call that justice! I may have won the case but what good does it to me?. I was excited by the possibility that the parties could resolve their differences themselves, and even better that they could choose the elements of that resolution. In criminal work I often saw the frustration and anxiety that victims experienced waiting for, during and even after their court appearance. And I saw that the process did little to change indeed was not designed to change their experience of the crime of which they were victims. The same applied to the perpetrators. If they were pleading guilty, they needed to do no more than answer to their name when asked, and Guilty when the charge was put. Then go down the stairs to the cells and start to do their time or come out of court and join their mates down the pub to celebrate their lucky break. Nothing had changed for most of them, and in no way did they have to face up to the consequences of their actions. From mediation to RJ Once I had started to learn mediation skills, it seemed obvious that they might have a place in the criminal justice system. Some process was needed to connect the offender with the effect of his actions on his victim, I felt. There had to be a way for his conscience to be awakened on the working hypothesis that he had a conscience. And, as I saw when I sat as judge, there needed to be some way in which the victim could learn that the perpetrator was not an evil monster (usually), but a damaged, vulnerable individual who was most often himself a victim. So when I heard Professor Howard Zehr gave a talk on Changing Lenses, it was a profound experience to learn that Restorative Justice existed and was alive and well, even if only in small pockets across the world. I wanted, indeed felt obliged to support its development in any way I could, and so I became a member of what was then the Restorative Justice Consortium. Its tempting to think that the RJ movement has arrived in England and Wales, with legislation for pre-sentence RJ currently before Parliament, moral and financial support for the RJC from Government and a planned national rollout. There is, of course, more work to be done and, no doubt, more obstacles to overcome. However

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with the benefit of hindsight some general guidelines and principles stand out if RJ is to flourish. A Restorative Justice body A body that will promote the RJ agenda nationally whatever its name seems to be essential. Whether such a body is a charitable company (like the RJC) or some other organisation, it needs to be there, and perceived as there, for the good of all rather than any sectarian group. In addition, the support of champions and influential patrons seems in retrospect to have been essential. A number of individuals and organisations played crucial roles in promoting the understanding and credibility of restorative justice in the UK. Champions like the then Chief Constable of Thames Valley Police, Sir Charles Pollard, academics such as Martin Wright, civil servants like Lizzie Nelson, then Home Office lead on RJ, were all key figures. There have been other key events and signposts along the way. Public confidence in standards of good practice has seemed fundamental in such a delicate area of endeavour. Developing Best Practice guidance, and moving from being a Consortium to a Council was integral to maintaining practice standards. Although it was not always politically easy, this has been a key contribution to the acceptance of RJ. And of course influencing the media has been critical. The more that journalists in print and visual media understand the effectiveness of RJ, the better embedded it becomes. Accounts from victims of the benefits and the positive effects of the RJ process are particularly valuable. Governance Another important step was encouraging RJC Board members to act and think in terms of what is best for the organisation, rather than their own group or constituency. Those who support RJ have often had to fight to sustain their vision against resistance and cynicism. Sometimes individuals develop what might be called founder mentality, where if a proposal wasnt in line with their thinking, it shouldnt be done at all. Yet what such a Board needs is not individuals who will represent their own organisations or constituencies, but who are dedicated to the best interests of the Council in driving a national agenda. At times, this may throw up crises of conscience, yet it is vital for the healthy and effective functioning of the RJC. The challenge of course is to manage those differences in a restorative way! Diversity is a huge asset to such a body, so it is vital to reserve (and even write into the constitution) some places on the board for those who come not from a criminal

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justice background, but with experience in e.g. business. It helps of course if they are sympathetic to RJ! It is also valuable to carry out a skills audit, analysing what skills are represented in the current make-up of the Board, and what skills are needed; then encouraging applicants who will fill those skills gaps such as marketing, fundraising, organisational development etc. The restorative meeting What has inspired me throughout is the experience of transformation that is inherently possible in any such meeting. Individuals may approach it filled with fear, dislike, or hatred, maybe built up over a long time yet can emerge on the other side with affection or compassion or empathy for the other. How different from the outcomes of traditional criminal justice. Religion exhorts us to forgive those who wrong us. This may be very difficult to find in our hearts when we feel ourselves to have been victimised. Yet the process of meeting and talking offers a path to find that spiritual element. Thus it is not uncommon to find contrition, regret, compassion, and empathy at such a meeting e.g. the victim who after a couple of hours offers to help the offender find work. Or the offender who wants to stay in touch with their victim to let them know about their progress. Many other examples abound, as a brief look at the RJC website www.restorativejustice.org.uk will reveal. Implementing RJ - the Challenges To those of us brought up in a retributive legal system the nature of a restorative process is pretty unfamiliar. So it should not come as a surprise that RJ may be seen as dangerous and threatening, and its potential for upset should not be underestimated. A principal source of resistance to RJ may well be the apprehension that stems from this unfamiliarity. To address this, an approach is necessary that is to borrow Professor John Braithwaites description both top down, ground up and middle out. A communication strategy must seek endorsement from Government and policy makers. It needs to address public perception and concerns. And it must engage with professionals both in criminal justice e.g. judiciary, lawyers, probation, prison service and business, as well as those who are already working in the restorative field. A good starting place however is the recognition that the existing system is not serving us the community as well as it needs to. There is no need for a moral position only the pragmatic and sad fact that in the UK at least, victims satisfaction rates with criminal justice are low and recidivism is high. It has been helpful to cite the

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Governments own research which shows that RJ offers 85% victim satisfaction rates and a 27% reduction in reoffending. Other challenges are around the sustainability of the body promoting RJ. Basically this means money. Funding crises can sap energy that should be going into development work. To avert these and the perennial search for money, sustainable sources of funding have to be found. These may be from membership fees and practitioner registration, from grant-making trusts and business sponsorship. It may be that consultancy offers a revenue stream, although such fund-raising opportunities are limited. Ideally committed funding from public bodies e.g. the EU, the State, gives the greatest measure of sustainability though such funding can bring with it particular challenges of its own. Standards in RJ There are of course other and more specific questions of policy and practice that have to be considered e.g. confidentiality, voluntary nature of participation and so on. However the most important function that a national body can offer I believe is quality assurance for the public. At the heart of it is the need for a safe process, where those involved and the community at large can feel confident that at the very least, no further harm will be done, and at best the process is managed with integrity in a way that is secure and effective. Steps that have been taken to this end include: drawing up Best Practice Guidance a national Practitioners Register a national Trainers Register a Code of Practice for Practitioners a Code of Practice for Trainers Accreditation of Practitioners a Restorative Service Quality Mark for agencies

It has been important that all of these have been created in conjunction with the membership. Indeed it could be said to be essential that this body acts in a restorative way in everything it does in other words that it walks its talk. The view beyond So RJ is not something to be imposed indeed it is a contradiction in terms and of the spirit of a restorative approach. If RJ is integrated into the fabric of our society it is because it expresses a progression. Revisiting Nils Christie, the State need no longer

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take ownership of our conflicts. Humanity and our society have grown up enough to be more responsible and response-able for resolving our differences ourselves. Those who undertake this great work however should be under no illusions this is about a change of culture. This journey from a retributive to a more restorative system, from third-party resolution of disputes to self-determination, requires a shift in attitudes and that takes time. It could be described as a kind of evolution. And despite my mature age, I have not yet outgrown my tendency to idealism only now I would express the ideal as Make Peace not War.

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Where is restorative justice heading?

Dr. Theo GAVRIELIDES19 Restorative justice has emerged from communities and through the passion of dedicated practitioners, victims and offenders. The future is uncertain as governments take interest in a top down and controlled version of this community led ethos. The paper identifies three opportunities for restorative justice, alerting the restorative justice movement that if it does not restore the damages caused by its own power-interest battles, it will soon be diminished. Opportunity for restorative justice no 1: missed? For the past 13 years, I have been a restorative justice student and despite my enthusiasm with the prospect of instilling something fresh into a broken criminal justice system, I remained objective. Most of my public speaking and academic articles would start in the same way: The focus of researchers should not be on the superiority of restorative justice, but on the development of its processes and principles (Gavrielides 2007; 2008; 2012a; 2013). It is true that we have more evidence and writings on restorative justice than any other criminal justice policy, and yet it is far from being used in the way that its proponents hope. Whether this is a good or a bad thing remains to be debated. As one practitioner said to me a few years ago When restorative justice works, it works really well; but dont expect it to always be appropriate (Gavrielides, 2007). How can we when one of the fundamental principles of restorative justice is voluntariness meaning that it cannot be imposed on offenders and victims as if it is another form of punishment. We also have to ask whether restorative justice was ever meant or conceived to be mainstreamed. As a believer of individual empowerment and the founder of a charity that promotes community-led solutions for a better society, my question has always been How can restorative justice, as a community born ethos (Daly and Imarrigeon 1998; Gavrielides 2012), enable the individual to have a genuine role in bringing fairness to society. Following from this, What is the role of government, academics and practitioners in facilitating this process; not for their own ends, but for the
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Dr. Theo Gavrielides, Founder and Director of Independent Academic Research Studies (IARS), Adjunct Professor at the Centre for Restorative Justice of Simon Fraser University, Visiting Professor at Buckinghamshire New University and Panteion University and Visiting Senior Research Fellow, Social Sciences Department, Open University. Email: T.Gavrielides@iars.org.uk | Website: www.iars.org.uk| Twittter: @TGavrielides

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individual, let that be the victim, the offender, their family, friends and their community. Although I no longer consider myself to be a junior researcher, I accepted the invitation to write for this special edition with great pleasure. My brief was to write about where restorative justice is heading. Although I am not confident that I will do justice to the request to be positive, I will seize the international and national momentum of policy reform, and present my thoughts, fears and suggestions for the restorative justice movement. There are a number of definitions of restorative justice; Gavrielides (2008) explains that these tend to be divided into two big groups. The first places emphasis on the various types of restorative process, while the second highlights restorative outcomes. There are also the wider, value-based definitions including Restorative justice is an ethos with practical goals, among which is to restore harm by including affected parties in a (direct or indirect) encounter and a process of understanding through voluntary and honest dialogue (Gavrielides 2007, p. 139). Gavrielides argues that restorative justice adopts a fresh approach to conflicts and their control, retaining at the same time certain rehabilitative goals (ibidem). Gavrielides understands the term ethos in a broad way. Restorative justice, in nature, is not just a practice or just a theory. It is both. It is an ethos; it is a way of living. It is a new approach to life, interpersonal relationships and a way of prioritising what is important in the process of learning how to coexist (Gavrielides 2007,p. 139). For Braithwaite (1998) and McCold (1999), the principles underlying this ethos are: victim reparation, offender responsibility and communities of care. McCold argues that if attention is not paid to all these three concerns, then the result will only be partially restorative. In a similar vein, Daly (2000, p. 7) said that restorative justice places an emphasis on the role and experience of victims in the criminal process and that it involves all relevant parties in a discussion about the offence, its impact and what should be done to repair it. The reflections that I am sharing in this paper were triggered by my recent visit to Vancouver, British Columbia, where I was invited to give a series of lectures as part of restorative justice week held every year in November. After being welcomed by two of the most inspiring restorativist women I have ever met, Dr. Zellerer and Prof. Morrison, my week started with meeting a dozen assistant Deputy Ministers, currently working on a provincial grand plan to reform and improve the criminal justice system. Following the August 2012 Geoff Cowper QC report A Criminal Justice System for the 21st Century, the Minister of Justice committed to bringing change. I left the meeting with a strong sense of hope, but with a bitter after taste of reality. Most of the questioning was around savings, and what one would call the business case for restorative justice. After quoting the usual thin evidence, I was quick enough to come back to the question and address it by saying: If we are trying to replace an apple that costs 5p with an orange that costs 4p and which promises the

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much needed vitamin C, then we have already lost. A true commitment will show when we implement changes that will improve long term outcomes. But how naive is this statement? My answer was not evidence based. It was a reaction of what I am experiencing from what is happening back home in the UK. The world economic crisis in combination with the 2010 change in the UK government brought a number of institutional restructures and a shift in the philosophy on public spending. Under the slogan of Punishment and Reform, a number of public consultations were initiated including some that were focused on probation services (Ministry of Justice 2012b). There should be no doubt that substantial changes will occur to criminal justice service provision nationally. The government has been honest about its intentions, acknowledging that the criminal justice system is failing. The key concern principally stems from the high reoffending rates (i.e. one in two offenders return to custody, rising to 75% of young offenders). According to the Offender Management Caseload Statistics, in 2009, the UK had 151 prisoners per 100,000 population, the second highest rate in Western Europe, below Spain (Ministry of Justice 2010a). In England and Wales, the prison population is forecast to rise to 94,000 before the next general election (Berman 2010, p. 1). These failings are at an annual cost of 10 billion (National Audit Office 2010). In December 2010, the UK coalition government published the Green Paper Breaking the Cycle, announcing its intentions for key reforms to the adult and youth justice sentencing philosophy and practice. That is why the Government has embarked on wholesale reform I set out radical plans to make sentences in the community more credible and to reform probation so it is more effective in reducing crime, by extending competition and opening up the management of lower risk offenders to the innovation and energy of the widest possible range of providers. (Ministry of Justice 2010c) This brought restorative justice back onto the policy agenda. A number of ministerial statements were made while millions of pounds have already been spent, or have been committed, for training prison and probation staff and police officers on restorative justice. I expressed my scepticism, alerting people to the lessons of the old when the Labour Government launched its own public consultation, which then resulted in their 2003 plan for introducing restorative justice in the adult criminal justice system (Gavrielides2003). Billions of pounds were spent on various research pilots, a restorative justice unit within the Home Office, conferences and training. But restorative justice was never put forward as a consistent and available option for victims, offenders and their communities.

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Therefore, I was surprised when in September 2012 I was asked to join a national restorative justice steering group that was put together by our current Ministry of Justice to construct a strategy that will support a well-intended legislation that would introduce restorative justice at every stage of the criminal justice system. With much hesitation and gratitude, IARS, the research centre that I direct, participated in this project, which concluded its work on the first day of restorative justice week. The new strategy Restorative Justice Action Plan for the Criminal Justice System was then announced. We now know that in England and Wales, the informal application of restorative justice by criminal justice agencies, including probation trusts, is about to be formalised and mainstreamed. In the words of the Ministry of Justice: The Governments plan for a rapid expansion of restorative justice where victims of crime are given the opportunity to confront their offender was boosted today with the publication of a new nationwide action plan for the criminal justice system to coincide with International Restorative Justice Week20. This increase in interest in restorative justice will have direct impact on probation services. For example, as part of its commissioning intentions for the 2013-14, the National Offender Management Service (NOMS), the key governmental body funding probation services in England and Wales set out a specific intention for both prisons and probation trusts to continue to develop sustainable capacity and capability to deliver effective face to face victim-offender conferencing, working with partners. In their 2012 publication NOMS noted: The Governments proposals for reforms to the sentencing framework and the management of offenders outline a commitment to increase the use of restorative justice. Additionally, the reforms on Community Sentences include extending the use of restorative justice into the postconviction/pre-sentence period. NOMS commissioning intentions for 2013-14 reflect the ministerial and Agency commitment to deliver high quality restorative justice for victims and offenders, and ask prisons and probation Trusts, working with partners, to continue to develop their capacity to deliver effective victim-offender conferencing. Some prisons and Trusts are already delivering sustainable victim-offender conferencing whilst others are still in the planning phase NOMS aims to help Trusts and prisons develop the capacity to respond to requests for restorative justice post-conviction; ensure that resource is targeted where evidence suggests that it is likely to have the best outcomes; and ensure that the restorative justice models delivered are effective and sustainable.
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http://www.justice.gov.uk/news/press-releases/moj/plan-to-give-more-victims-a-voice-restorativejustice (accessed March 2013).

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But it is not all-good news for celebration. In fact, I humbly and with much hesitation withdrew my membership to the national steering group as I felt that the proposed structure and action points for the implementation of the strategy and proposed legislation were top down, ignoring what I consider to be the heart and soul of restorative justice i.e. its community born and community led ethos. In an open letter to the responsible minister, I published my concerns21. Going back to my restorative justice week in Canada, on my way back from Victoria I met a family whose daughter was murdered and had agreed to meet one of the two offenders who had been convicted with the crime. The mother said to me: Too often people assume that victims want to see their offenders locked up in prison, playing video games and learning how to become better criminals. We want accountability, and to understand what happened; we want to see them doing something good. I also met another victim who suffered from child sexual abuse and violence within gangs. He said: To all those who hurt me in my childhood, I send them lots of love and I hope they have had at least some of the opportunities to heal that I had How could I ever forgive myself without seeing them as wounded people too? Both of these victims now practise restorative justice spreading the message and its potential benefits to communities. But what has turned out to be the highlight of my restorative justice week was my sharing through a circle that Dr. Zellerer facilitated as part of my presentation for the AGM of North Shore Restorative Justice, a community-based service for Vancouver. Staffed only with two paid members, the centre deals with over 100 cases per year stretching from shop lifting to serious youth violence, complex cases and group offending. With an annual turnover of just $100,000 and with the support of many volunteers, I was thinking that maybe it is them that the dozen Ministers I met should have listened to for an evidence based business case for restorative justice. With less than $1,000 per case my case was rested. But was it? As governments around the world take interest in restorative justice and set up new strategies, legislation and funds to promote it, their role must be clear. Restorative justice is not a product that can be mainstreamed and rolled out nationally. It exists in small neighborhoods, in homes, churches, schools, tents, humid mediation centres and, yes sometimes, in big fancy offices. Identifying central government organisations or the governments usual suspects, big national bodies and celebrity restorativists that can manage and indeed control how restorative justice is rolled out is not only a waste of public money, but also an insult to the work that so many people did and will continue to do despite being excluded or recognised. As we were going around the circle, I came to realize that every single person who practised restorative justice had a story to share. A story of pain as a victim or a story
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http://iars.org.uk/sites/default/files/IARSNov2012.doc (accessed March 2013).

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of regret as an ex-offender. And this is what makes restorative justice special. It is the communitys way of understanding and dealing with conflict. This is also a feeling that was shared among the 21 prisoners who attended a circle with me at Ferndale prison. Most of them were serving a life sentence.Restorative justice is done by kids, by volunteers with no money, by everyone who feels responsible enough to do something for their community How can you expect those people to register so that they can practise? one volunteer facilitator ex-offender said. This reminded me of a different type of workshop that I held in November 2010 on behalf of Open University and IARS. The workshop was part of a larger project that I have been running aiming to initiate an international debate that will assist the development of improved practices, better-informed policy and more grounded research on restorative justice. Over 40 experts in restorative justice field attended the workshop. The Home Office, Youth Justice Board, Victim Support, Ministry of Justice, Prison Reform Trust, Probation and several universities were among the organisations represented. The issue of accreditation and standards was discussed. There was consensus that innovation, standards and accreditation are complementary. However, it was stressed that restorative justice is community born and hence this must be accommodated. Top down approaches will fail. It was recommended that practice must be involved in formulating qualifications. It is not good to have people with qualifications but no practical experience while it would be a mistake to exclude those with experience but no formal qualifications someone said (Gavrielides 2011b). Braithwaite notes: While it is good that we are now having debates on standards for restorative justice it is a dangerous debate. Accreditation for mediators that raises the spectre of a Western accreditation agency telling an Aboriginal elder that a centuries old restorative practice does not comply with the accreditation standards is a profound worry (2002). And let me stress the importance of standards because I have been misquoted, to my surprise. In all my papers, I have stressed the risks that restorative justice brings. It is not a soft option. It entails pain; not just for the offender, but also the victim and their communities (Gavrielides 2013). This was my key contribution in the lecture that I was very honoured to have been asked to give as part of restorative justice week and in memory of Prof. Liz Elliott, a true believer of the kindness that we all have. I felt compelled to respond to Lizs vision: Restorative Justice must be more than a programme within the current system it must be a new paradigm for responding to harm and conflict with its own philosophical and theoretical framework. Facilitating this shift requires a re-thinking of the assumptions around punishment and justice, placing emphasis instead on values and relationships. By definition, any government has an expiry date and this puts an obligation, but also political fears, that those changes must be done quickly and cheaply. I am fearful that as restorative justice is being explored for its potential to bring about change that

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quick, ready-made packages are introduced. These will consequently harm its delivery in the long-term. Mainstreaming restorative justice on the cheap is not the answer. Providing 1-3 day training packages to police officers, probation staff and prison guards will not deliver the restorative vision. Funding the usual suspects to control a top down register for people who are practising restorative justice will not increase public confidence in restorative justice; it will destroy it. It will also alienate the big society of volunteers giving their time to keep local justice balanced. Opportunity for restorative justice no 2: missed? The second window of opportunity for restorative justice is to be found beyond the UK boarders. Over the last 10 years, the European Commission has developed and indeed shown keen interest in developing and supporting an evidence base for restorative justice. Through a number of action grants, the Commission funded hundreds of NGOs, governmental bodies and charities across Europe to research and implement restorative justice. The EU and the Council of Europes commitment to restorative justice can be found in a number of documents including: The Position of the Victim in the Framework of Criminal Law and Procedure Council of Europe 1985 Recommendation No R(85) Assistance to Victim and the Prevention of Victimisation Council of Europe 1987 Recommendation No R(87)21 The Social Mission of the Criminal Justice System Restorative Justice Council of Europe 2005 Resolution No 2. Mediation in Penal Matters Council of Europe 1999 Recommendation No R(99) The Standing of Victims in Criminal Proceedings, European Union 2001 Framework Decision, Resolution 40/43 1985 Establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime, EU Directive 2011/0129 EU Directive and Regulation on the Mutual Recognition of Protection Measures.

Long battles have been fought by the victims and restorative justice movements to move the victim from the margins to a more central position in the criminal justice process. Following the new EC Victims Directive22, European governments now have no other option but to become more responsive to victims needs and voices.

http://www.rj4all.info/system/files/rj_library/Directive%202012_29_EU_Victims_of_Crime.pdf (accessed March 2013).

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In particular, the Directive establishes minimum standards and safeguards that must be enforced by all criminal justice service providers to protect victims of crime as well as family members of victims killed by a crime. Restorative justice and the development of appropriate standards and protocols feature prominently in the Directives articles. The directive was designed to ensure that: Victims are treated with respect Police, prosecutors, judges and criminal justice agents are trained in sensitivity to victim Victims are entitled to be kept informed of their case, in a manner that is clear and understandable to them Each member state shall have a designated victim support service Victims can take part in proceedings and will be helped to attend the trial States must identify vulnerable victims, such as victims of sexual assault, disable victims or children, and must properly protect them Victims are protected while police investigate the crime and during court proceedings.

That is why my heart jumped when the Justice Minister said the following as he was introducing his government Restorative Justice Action Plan: I want restorative justice to become something that victims feel comfortable and confident requesting at any stage of the criminal justice system. But this process has to be led by the victim and be on their terms. If it doesnt work for the victim, then it should not happen. These are not words that you get to hear often. There is a growing acknowledgement that the individual, the victim, their family are the key to making restorative justice, or I should just say justice, happen. And there is one more reason why the interest of criminal justice agencies in victims and restorative justice is increasing. The literature seems to suggest that often offenders want to make amends. This can help desistance and integration (NOMS 2012a; 2012c). By working with victims and communities this target can be achieved. This does not necessarily mean that offenders have to meet their victims. However, they can be encouraged to find a role that they wish to take in the restoration of what happened. Focusing on restorative justice and probation services, the 2012 joint thematic inspection by HMIC, HMI Probation, HMI Prisons and the HMCPSI23 found that the probation trusts that they inspected for restorative justice had recognised [restorative justices] contribution to improved community confidence. According to the report,
This resulted in the inspectorate report Facing Up To Offending: Use of Restorative Justice in the criminal justice system which can be accessed via http://www.hmic.gov.uk/media/facing-up-tooffending-20120918.pdf (accessed March 2013).
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applying restorative justice where it is appropriate can also help improve outcomes in relation to reintegration and recidivism of offenders. The report noted that each trust that they inspected for restorative justice recognised the multiple outcomes that could be achieved in particular increased victim satisfaction and reductions in reoffending (Criminal Justice Joint Inspection 2012, p. 58). They also went on to say: We found impressive examples of the benefits that restorative justice can bring to victims and offenders in complex or difficult cases dealt with by probation services. Further examples where restorative justice has been used successfully by other probation trusts need to be identified. For instance, IARS has been working with Greater Manchester Probation Trust to evaluate the use of restorative justice with those who have been convicted for offences following the recent riots in England and Wales. In a bid to meet the changing needs of sentencers and victims24, GMPT quickly developed a new intervention for courts called the Intensive Citizenship, Responsibility and Consequences order (I-CRC). Within this, a restorative justice intervention is provided (Gavrielides 2012b). NOMS picked up on the potential of restorative justice to improve outcomes for users. As part of its commissioning intentions for the 2013-14, NOMS set out a specific intention for both prisons and probation trusts to continue to develop sustainable capacity and capability to deliver effective face to face victim-offender conferencing, working with partners. But I fear that this second momentum is also going to be missed as victims voices are again ignored. In its Action Plan, the Ministry of Justice identified one single organisation for creating, enforcing and monitoring standards and quality control restorative justice. In March 2013, this organisation announced on behalf of the government the consultation on what they called Restorative Service Standards and Restorative Service Quality Mark Framework25. Alongside these documents they also produced the restorative justice monitoring and data collection templates as a requirement for the quality mark. In order to qualify for a mark, restorative justice practitioners will need to complete an online portfolio to show how each to these indicators are met. This will be followed by a formal assessment by a consultant. In order to enter into the process of assessment, a fee ranging from 3,000 to 1,500 will have to be paid. According to the consultation document, the standards and quality mark were drafted by an expert steering group. How and who selected its members remains unknown. What is certain, however, is that victims were not included. What is also certain is that organisations representing and advocating for victims were also excluded from the process.
Roz Hamilton, GMPT Chief Executive (accessed March 2012) http://www.gmprobation.org.uk/news/default_item.php?id=188 25 See http://www.restorativejustice.org.uk/news/rsqmconsultation/#.UU7ia7_DpUQ (accessed March 2013).
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All this in the backdrop of the aforementioned EC Victims Directive and two new EU funded programmes aiming to construct an evidence base for the design of victim led standards, training material, protocols and safeguards for the delivery of restorative justice. The first is titled Restorative Justice in Europe: Safeguarding Victims & Empowering Professionals (RJE), and is run by IARS while the second is coordinated by the German Schleswig-Holstein Association for Social Responsibility in Criminal Justice, Victim and Offender Treatment26. If governments are truly committed to promoting restorative justice, then they need to work closer with the communities that create the various models through which this abstract umbrella notion of restorative justice is delivered whether it is called mediation, circles, conferencing Try to mould and standardise restorative justice and all you will achieve is its McDonalisation. Its diversity and ability to deliver equity and fairness at a local level, its creativity and innovation will all die out. Ignoring victims while imposing top down controls on restorative justice is not the way forward. Opportunity for restorative justice no 3: missed? The third opportunity for restorative justice is to be found in the various cuts and policy restructures caused by the world economic downturn. Implementing restorative justice in a difficult financial climate instantly brings up the question of cost and benefit. Although data on the financial viability of restorative justice are extremely limited, it somehow managed to convince that it is a cheaper option for governments. This is mainly because the financial analysis of imprisonment is well developed (Justice Committee 2010). In the UK, keeping each prisoner costs 41,000 annually (or 112.32 a day). This means that if there are 85,076 prisoners at the moment, prisons cost as much as 3.49 bn. According to Home Office statistics, it costs 146,000 to put someone through court and keep them in prison for a year (Prison Reform Trust 2010). Moreover, according to a 2010 report by the New Economics Foundation, a person that is offending at 17 after being released from prison will commit on average about 145 crimes. Out of these crimes about 1.7 are serious crimes (homicides, sexual crimes or serious violent offences). Given that a prison sentence is estimated to increase the likelihood of continuing to offend by 3.9 per cent, this translates into an average of about 5.5 crimes caused, out of which about 0.06 are serious (Knuutila 2010, p. 40). In June 2010, the Justice Secretary said that prison often turns out to be a costly and ineffectual approach that fails to turn criminals into law-abiding citizens (Travis

26

For further see http://rj4all.info/content/RJE (accessed March 2013).

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2010, p. 1). He also indicated the new governments appetite for seeking new and more cost effective ways of reducing reoffending and serving justice. The scarce evidence on restorative justice suggests that the savings that flow from the contribution made to reducing reoffending rates are impressive; According to Shapland et al. restorative justice can deliver cost savings of up to 9 for every 1 spent (2008). Victim Support also claims that (2010, p. 29), if restorative justice were offered to all victims of burglary, robbery and violence against the person where the offender had pleaded guilty (which would amount to around 75,000 victims), the cost savings to the criminal justice system as a result of a reduction in reconviction rates would amount to at least 185 million over two years. Furthermore, according to Matrix Evidence (2009), restorative justice practices would likely lead to a net benefit of over 1 billion over ten years. The report concludes that diverting young offenders from community orders to a pre-court restorative justice conferencing scheme would produce a life time saving to society of almost 275 million (7,050 per offender). The cost of implementing the scheme would be paid back in the first year and during the course of two parliaments (10 years) society would benefit by over 1billion (2009). Time as a unit cost has also been recorded in the scarce available literature. For instance, according to the 2010 Association of Chief Police Officers (ACPO) survey on restorative justice, the average time taken by Hertfordshire police officers dealing with minor crimes through street restorative justice was 36 minutes as opposed to 5 hours 38 minutes spent on issuing reprimands. Translating this into cost meant 15.95 for restorative justice and 149.79 for a reprimand. Similar savings were found for Cheshire police (20.21 vs 157.09) (Cheshire Operation Quest 2 2009). The belief that restorative justice can cut down costs had an impact on funders intentions and priorities. For instance, the 2012-13 NOMS Business Plan states: We will compete fairly in open markets ensuring expansion of work across the estate at no additional cost to the taxpayer and including financial contributions to victims services (NOMS 2012b). The Ministry of Justice also seem to have taken a more cautious approach and a different philosophy on how funds are spent on criminal justice. One of the results of this new approach was the introduction of what is now called Payment by Results policy. According to the Ministry of Justice: Introducing payment by results means that we want to reward providers when they are successful in reducing reoffending levels, rather than providing upfront funding regardless of outcomes achieved. By implementing a payment system based on achieving actual reductions in re-offending rather than meeting input/output targets we think we can

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deliver improved public services at the same or less cost. This represents a radical departure from the justice policies of previous governments.27 The Ministry of Justice stated their intention to contract out probation services for low and medium-risk offenders to private companies and charities. Following a targeted 2012 consultation that aimed at bringing tailored changes to the probation services, 280 responses were received28. In their subsequent 2013 paper Transforming Rehabilitation: a revolution in the way we manage offenders (Ministry of Justice 2013), the government is said to have reflected on these responses putting forward proposals for reforming the delivery of offender services in the community to reduce reoffending rates whilst delivering improved value for money for the tax payer (Ministry of Justice 2013). One of the key objectives of these reforms is opening the majority of probation services to competition, with contracts to be awarded to providers who can deliver efficient, high quality services and improve value for money (Ministry of Justice 2013). It is expected that 70% of probations core work will be put out to competitive tender29. All 35 probation trusts seem to have acknowledged that they have no other choice but to accept the shift in government thinking on how public funds are disposed for criminal justice. In a competitive market where private organisations are well placed in preparing bids and maximizing resources, probation trusts also seem to have acknowledged the need to deliver additional and better outcomes for their users. This presents restorative justice with a unique opportunity to establish itself as outcome focused practice that delivers better justice for all. Making claims that it costs less however is not the right way forward. Further research is needed to support this thin argument. While it appears that it is economically advantageous to society to adopt a restorative approach to crime, research suggests that an appeal solely on this basis may undermine restorative justice in the long run. For instance, there was consensus among Gavrielides (2007; 2012a) interviewed practitioners that this could lead to quick fix policies, a lack of a coherent and long term strategy and high expectations. One practitioner said When it comes to asking money, the problem is that restorative justice has a slow time delivery this is especially the case with the Government where the money usually comes from. Funders, in general, want to see results now, and treat restorative justice as a quick fix tool; this often leads to disappointments and misunderstanding about what restorative justice really is and what it can offer.
See http://www.justice.gov.uk/offenders/payment-by-results/the-challenge (accessed March 2013). All 35 Probation Trusts of England and Wales sent their thoughts including LPT, to read the http://www.londonresponse probation.org.uk/pdf/LPT%20Response%20to%20Effective%20Probation%20Services%20Consultati on.pdf (accessed March 2013) 29 As noted by NAPO, see http://www.napo.org.uk/about/probationunderthreat.cfm (accessed March 2013).
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The way funding is distributed for restorative justice has already raised concerns among practitioners. In Gavrielides (2007) one practitioner noted: So, when you get money from the Government, then it is likely that you get their agenda, and this affects how to measure the value of restorative justice and its outcomes. Someone else said: The government tends to give prime importance to reducing re-offending, and although this might not be problematic as such, the way restorative justice has so far been used suggests that is been treated as a means to an end. If we are to seize this third opportunity, then restorative justice must be treated as a practice and an ethos that is based on different principles from the ones that characterise the traditional criminal justice system. The literature suggests that the prioritisation of funding resources according to groups of parties involved in a crime affects the sponsoring of restorative justice schemes as the restorative principles place equal significance on all communities of interest. For example, funding specifically allocated to rehabilitating offenders may not consider restorative justice schemes to be fit for that purpose. Likewise, funding for victim support programmes may treat restorative justice as something for the offender and indeed dangerous for the victim. Funders and stakeholders need to either remain open-minded when assessing funding applications for money allocated to specific parties, or introduce new funding streams for restorative methodologies that focus on all communities of interests. And there are further dangers in missing the third opportunity. One practitioner noted: the term restorative justice is currently being used to label things that are in no means restorative for either party involved. And there are a lot of reasons for this, and one of them is money some people came along with their punitive practices and labelled them restorative justice in order to get this money Hijacking funding by non-genuine restorative justice programmes. Funding bodies introduce time scales and performance measurement into funded practices, and these usually undermine their effectiveness. Moreover, evaluation needs to be large scale, and conducted at a sufficient length of time following an intervention to accommodate re-offending data. Scheme co-operation must be a condition of any funding arrangements. If progress is to be made in assessing the outcomes of restorative justice projects and in finding genuine restorative practices, resources would be better spent on implementing well-designed projects with clearly defined aims and methods, and with evaluation built in from the start. It appears that most restorative justice practices are run in the community by voluntary and community sector organisations and groups (Marshall 1996, Johnstone 2002). Although this allows a considerable level of flexibility into the development and management of these schemes, it also adds a number of challenges. Voluntary and community projects are most of the times under-resourced and understaffed while most of the times are not seen by statisticians, criminal justice officials and governmental bodies as contributing to crime prevention.

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Commentators have repeatedly stressed the important role of these projects in promoting a feeling of empowerment and belonging in community groups. Voluntary organisations help maintain a balance between community groups often feeling isolated and let down by public services and government. They establish communication channels between individuals and government bodies, and enable small and large minority groups to have a say in policymaking, legislation and regulation of the countrys affairs. The vast majority of their activity takes place at a local level, often addressing the needs of society's most disadvantaged groups. Statistics also show that the public trusts these groups more than other criminal justice services. Charging these organisations with a 1,500 fee to acquire a mark that will allow them to practise what is rightly theirs marks the beginning of the end for restorative justice in the UK. Concluding thoughts In this paper, I identified three opportunities for restorative justice as these are created by the current economic climate, the EUs interest in victims as well as the UK governments focus on outcomes. In the years that I have been researching restorative justice, I have witnessed a power-interest battle within the restorative movement, which included not only different professionals (e.g. practitioners vs theoreticians), but also types of practices (e.g. mediation vs family group conferencing) as well as fundamental restorative justice principles (e.g. voluntariness vs coercion). Although constructive debates are always essential for the advancement of criminal justice doctrines, it is my conclusion that if the restorative movement does not restore its own power struggles, the discussed opportunities will be missed. Back in 2003, one of my interviewed practitioners said to me: I think the challenge right now is that there are lots of movements within the restorative justice field, lots of research, people such as yourself that are trying to reconcile all these different aspects of restorative justice, and this, I think, is crucial. All these people are moving, but not together. People are grappling with their research [to find] where and how restorative justice [can] fit in the criminal justice system, what kind of offenders [it can engage], [what] type of offences [it can deal with], periods of time [needed] etc and there needs to be a real joined thinking about all these matters In fact, we are all grappling with where, and who, and for what restorative justice should be used, and I think there needs to be a pulling together. We still dont have all the answers, but this step should help to bridge the gap Besides, this was one of the reasons I was attracted to this field and I think this should be the next step for restorative justice, to pull it all together (Gavrielides 2007).

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Restorative justice was reborn not out of formal structures and legislation, but of voluntary action by enthusiastic and dedicated practitioners from around the world. As the restorative tradition is now expanding to deal with crimes, ages and situations that it has never addressed before at least in its contemporary version and as it starts to make sense in national, and also regional and international forums, then the responsibilities of both restorative practitioners and academics redouble. Bridges must be built in order to synthesise. References Berman, G. 2010, Prison population statistics in House of Commons Library. Braithwaite, J. 1998, Restorative Justice, in Handbook of Crime and Punishment edited by M. Tonry, Oxford University Press, Oxford. Braithwaite, J. 2002, Restorative Justice & Responsive Regulation, Oxford University Press, Oxford. Chambers, M. 2013, Expanding Payment by Results: Strategic choices and recommendations, The Policy Exchange, London. Criminal Justice Joint Inspection 2012, Facing up to offending: Use of restorative justice in the criminal justice system, CJJI, London. Daly, K. 2000, Revisiting the Relationship between Retributive and Restorative Justice, in H. Strang and J. Braithwaite (eds) Restorative Justice: Philosophy to Practice, Aldershot, USA, Singapore, Sydney, Ashgate/Dartmouth. Daly, K. and Imarrigeon, R. 1998, The Past, Present, and Future of Restorative Justice: Some Critical Reflections, in Contemporary Justice Review 1, pp. 21-45. Gavrielides, T. 2003, Restorative Justice: Are we there yet? Responding to the Home Offices Consultation Questions, in Criminal Law Forum 14:4, pp. 385-419. Gavrielides, T. 2005, Some Meta-theoretical Questions for Restorative Justice, in Ratio Juris 18:1, pp. 84-106. Gavrielides, T. 2007, Restorative justice theory and practice: addressing the discrepancy, HEUNI, Helsinki. Gavrielides, T. 2008, Restorative justice the perplexing concept: Conceptual faultlines and power battles within the restorative justice movement, in Criminology and Criminal Justice, Vol. 8 (2), pp. 165-184. Gavrielides, T. 2011a, Restorative Practices: From the Early Societies to the 1970s, in Internet Journal of Criminology, ISSN 2045-6743. Gavrielides, T. 2011b, Drawing together research, policy and practice for restorative justice, IARS, London.

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Gavrielides, T. 2012a, Rights and Restoration within Youth Justice, de Sitter Publications, Witby, ON. Gavrielides, T. 2012b, Waves of Healing: Using Restorative with Street Group Violence, IARS Publications, London. Gavrielides, T. and V. Artinopoulou 2013, Reconstructing the Restorative Justice Philosophy, Ashgate Publishing, Furnham, UK. Gavrielides, T. 2012, Rights and Restoration within Youth Justice, de Sitter Publications, Witby, ON. Johnstone, G. 2002, Restorative justice: ideas, values, debates, Devon, Willan. Justice Committee 2010, Cutting crime: the case for justice reinvestment, House of Commons, London. Marshall, T. 1996, The Evolution of Restorative Justice in Britain, in European Journal on Criminal Policy and Research(4), p. 21. Matrix Evidence 2009, Economic Analysis of interventions for young offenders, Burrow Cadbury Trust, London. McCold, P. 1999, Toward a Holistic Vision of Restorative Juvenile Justice: A Reply to Walgrave in The 4th International Conference on Restorative Justice for Juveniles, Leuven, Belgium. Ministry of Justice 2005, Reducing Re-Offending Through Skills and Employment, Ministry of Justice, London. Ministry of Justice 2007, The Governments Response to the House of Commons Home Affairs Select Committee Report: Young Black People and the Criminal Justice System, Ministry of Justice, London. Ministry of Justice 2010a, Offender Management Caseload Statistics 2009, Ministry of Justice, London. Ministry of Justice 2010b, Statistics on Race and the Criminal Justice System 2010, Ministry of Justice, London. Ministry of Justice 2010c, Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders, Ministry of Justice, London. Ministry of Justice 2011, National Standards for the Management of Offenders, Ministry of Justice, London. Ministry of Justice 2012a, Getting it Right for Victims and Witnesses: Equality Impact Assessment, Ministry of Justice, London. Ministry of Justice 2012b, Punishment and Reform: Effective Probation Services (consultation paper), Ministry of Justice, London http://www.officialdocuments.gov.uk/document/cm83/8333/8333.pdf

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Ministry of Justice 2012c, Punishment and Reform: Effective Community Sentences (consultation paper), Ministry of Justice, London. Ministry of Justice 2012d, Punishment and Reform: Effective Community Sentences. Government Response, Ministry of Justice, London. Ministry of Justice 2013, Transforming Rehabilitation: A revolution in the way we manage offenders, Ministry of Justice, London http://www.officialdocuments.gov.uk/document/cm85/8517/8517.pdf NOMS 2008, A scoping exercise of offender mentoring schemes in the South West, NOMS, London. NOMS 2007, Volunteers Can: Towards a Volunteering Strategy to Reducing Reoffending, NOMS, London. NOMS 2012a, Better Outcomes Through Victim-Offender Conferencing (Restorative Justice), NOMS, London. NOMS 2012b, Business Plan 2012-13, NOMS, http://www.justice.gov.uk/downloads/publications/corporatereports/noms/2012/noms-business-plan-2012-2013.pdf London

NOMS 2012c, Commissioning Intentions for 2013-14: Discussion Document, NOMS, London. NAPO 2013, Campaigning in Parliament: Increasing the Pressure, in Campaign Bulletin No 7. National Audit Office 2010, Managing Offenders on short custodial sentences, The Stationary Office, London. Prison Reform Trust 2010, Punishing Disadvantage: a profile of young people in custody, Prison Reform Trust, London. Prison Reform Working Group 2009, Locked up potential: a strategy for reforming prisons and rehabilitating prisoners, The Centre for Social Justice. Shapland, J., Atkinson, A., Atkinson, H., Dignan, J. et al. 2008, Does restorative justice affect reconviction? The fourth report from the evaluation of three schemes (Ministry of Justice Research Series 10/08), Ministry of Justice, London. Travis, A. 30 June 2010, Ken Clarke to attach bank em up prison sentencing, in Guardian, accessed on 7/1/2011 http://www.guardian.co.uk/uk/2010/jun/30/clarkeprison-sentencing-justice-jail Victim Support 2010, Victims Justice: What victims and witness really want from sentencing, Victim Support, London.

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Privatised probation: is payment by results compatible with restorative justice?

Dr. Martin WRIGHT30 The British government has announced a 'revolution' in rehabilitating offenders, to tackle some of the problems which many of them face, but it omits one serious disadvantage which many face: imprisonment itself. The article examines the consultative document, a central feature of which is to privatise much of the probation service on the basis of payment by results. It argues that the not-for-profit sector will be at a disadvantage, and proposes a network of local voluntary organizations, focused especially on restorative justice. The government is promoting deferred sentences; a further step would be deferred prosecution. The transformation should question the repeated emphasis on the ill-defined concept of 'punishment' (which is not as popular as often assumed), and replace it with 'consequences', which might also be unpleasant but would primarily be constructive measures aimed both at reparation and rehabilitation. We are accustomed to governments advocating a 'tough' criminal justice policy, so it is welcome to see a document with 'rehabilitation' in the title, and to find that the Ministry of Justice is leading a revolution.31 Should those working in the criminal justice field join the uprising? This consultation paper begins with a ministerial foreword drawing attention to the regrettably high level of re-offending, and acknowledging the chaotic background with which many offenders have to contend. The Secretary of State rightly stresses that prisoners released from short sentences
Dr. Martin Wright has been librarian at the Institute of Criminology, University of Cambridge; director of the Howard League for Penal Reform; and policy officer for Victim Support. He is a senior research fellow at the Faculty of Health and Life Sciences, De Montfort University, Leicester. He was a founder member of the European Forum Restorative Justice and until 2006 a member of the board, and until 2010 was a board member of the Restorative Justice Consortium and the Conflict Research Society. He is a volunteer mediator with Lambeth Mediation Service in South London, and with CALM Mediation Service in West London. Publications include Making good: prisons, punishment and beyond (1982, reprinted 2008); Justice for victims and offenders: a restorative response to crime (2nd ed. 1996); Restoring respect for justice (2nd ed. 2008) and Towards a restorative society (2010). He is an honorary fellow of the Institute of Conflict Resolution, Sofia, and holds a diploma from the Polish Centre for Mediation. In 2012 he received the European Forum's European Restorative Justice Award. Email: martinw@phonecoop.coop This article is based on a response to the Ministry of Justice consultation: Transforming rehabilitation: a revolution in the way we manage offenders. February 2013. Page references are to this document unless otherwise stated.
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need support, and proposes to introduce a programme of mentors who will meet them at the prison gate and have a package of supportive measures sorted out. The document goes on to spell out the re-offending rates: 57.6% of offenders sentenced to less than six months re-offend within one year, and 72.5% of all adults within five years. 'It is clear that a fresh approach to rehabilitation is needed'. (p. 7) Thus far there will be wide agreement. There is, however, one serious omission from the list of factors conducive to re-offending: the unintended side-effects of imprisonment itself. Official figures show that every time a person is sentenced to imprisonment, the probability that he or she will reoffend is increased. For example, among adult offenders sentenced in the first quarter of 2007, 25.2 per cent of those with no previous custodial sentence re-offended. When they had one previous custodial sentence, the proportion jumps to 40.3 per cent, with two previous, 48.9 per cent, and so on until 76.4 per cent of those with 11 or more prison sentences offend again. For juveniles, the rate jumps from 36.2 per cent with no previous custodial sentence to 80.5 per cent with one previous and 89.1 per cent with more than six previous custodial sentences (Answer by Maria Eagle to Parliamentary Question by Rt Hon. Keith Hill MP, 29 October 2009, quoted in Wright 2010, p. 7). This is not surprising, in the light of the known effects of imprisonment, highlighted by the Prison Reform Trust from official sources and academic research in Bromley Briefings Prison Factfile, November 2012. One in four men and half of all women on remand receive no visits from their family. Many prisoners are held at some distance from their homes: an average of 50 miles or more, and over 750 women more than 100 miles away (p. 27). 30% of boys and 47% of girls in custody reported having no visits in the last month or never having had visits. The odds of re-offending were 39% higher for prisoners who had not received visits compared to those who had (p. 29). These factors are not due to the regime inside prisons (though that has good and bad features) but to the fact of imprisonment. In addition, rehabilitative work in prison is very limited: only about one fifth of prisoners with serious literacy or numeracy needs enrol on a course that would help them (p. 62). The average working week in prisons is about 12 hours (p. 65). Of course there are constructive programmes and activities in prison as well, but not nearly enough, and there is no realistic prospect of increasing them significantly. The question is, is this likely to motivate or even enable people to avoid re-offending? It is much harder to provide the programmes in prison than in the community, although admittedly prison puts more pressure on them to attend. Rehabilitation should mean motivating and enabling a person to change their life by undoing the harmful influences that they have experienced previously. Too often it has to begin by undoing the harmful influences of imprisonment itself.

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Reducing re-offending Hence a major contribution to transforming rehabilitation and reducing re-offending could be made by reducing the use of imprisonment. When politicians are asked about this, they tend to claim that sentencing is a matter for the courts, not for them. The consultative document states (twice) that 'It is for the courts to decide on a sentence for an individual offender' (pp. 8, 30). But this is at best a half-truth. It is also stated that 'The public sector probation service [i.e. what is left after privatisation] will advise the court on sentencing, and will need a clear understanding of what rehabilitative services providers can offer, and what sentence will best facilitate these'. (p.22) Probation reports will not propose non-custodial measures and courts cannot impose them if the facilities for overseeing them do not exist, and it is politicians who decide what resources to allocate to them. As the House of Commons Justice Committee (2011, p. 3) has said, 'It is unacceptable that sentencers hands are tied by the unavailability of certain sentencing options because of inadequate resources'. More will be said about this below. Also, laws made by politicians set maximum sentences, which have an effect on the whole sentencing tariff; recently they have set minimum sentences as well. ['Indeterminate sentences for public protection' (i.e. other than life sentences) are fortunately no longer being imposed, since 3 December 2012, but many prisoners are still serving IPPs.] Judges cannot ignore the rhetoric of politicians and the popular media. There is a lack of consistency in the approach to sentencing: it is assumed that if a non-custodial sentence does not 'work' the next step should be a prison sentence; but since prison sentences also have a high failure rate, it would be more logical in many cases to argue for the improvement of non-custodial measures. The government's proposals Competing services in the community The proposals are based on the theory that competition increases efficiency and reduces costs. This assumption is questionable. The basis of the private sector is primarily to make a profit by delivering a service which keeps costs to a minimum while being good enough to meet certain criteria. There is an inevitable temptation to 'cut corners' in order to do so. The basis of the not-for-profit sector is primarily to deliver the best possible service within the available budget. The primary motivation is job satisfaction and even altruism, and there is no reason to believe that these are less effective than financial incentives. If the work were outsourced by the probation service, rather than by private-sector companies, both contractor and sub-contractors would be working to similar, not conflicting, values. Of course voluntary organizations should be run in a business-like way, but they should not be turned into businesses, as is implied by terminology such as 'supply chain'.

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In recent years the probation services motto has changed from advise, assist and befriend to enforcement, rehabilitation and public protection. Now not only is the profit motive to be superimposed, but an organization with a tradition and ethos of public service is to be parcelled out to a number of commercial organizations whose primary concern is their balance sheet. It is possible that large not-for-profit organizations will win some of the contracts, so that the results-based payments could be recycled into the provision of more services, but all the signs are that large commercial companies will win the contracts, as for example in New York, where it is reported that Goldman Sachs is investing in a 'social service bond', called a Rikers bond'. It will be guaranteed by Bloomberg Philanthropies, the philanthropic group of the mayor of New York, which will back $7.2 million of the planned $9.6 million investment. The four-year program, in which private non-profit groups will provide education and intensive training and counselling to at-risk incarcerated youths, must reduce the recidivism rate by at least 10 percent for Goldman to recoup the investment. If the recidivism rate drops further, Goldman could reportedly profit up to $2.1 million beyond its original investment. If the program fails to reduce recidivism by 10 percent, Goldman could lose $2.4 million. (Goldman 2013). The report does not mention whether the non-profit groups on whom the profit depends will be adequately funded, or whether they will be able to preserve their ethos in the face of commercial imperatives. It is not clear why this is expected to bring improvements, when one after another we have seen privatised services delivering massive failures, for example with school examinations, court interpreter services, assessment for disability payments, and security for the Olympic games. Indeed it is doubtful whether Transforming rehabilitation should be called a consultation document at all, since the government had already announced its intention of introducing payment by results in its Green Paper Breaking the cycle two years previously (Ministry of Justice 2010, pp. 38-48). Effective partnership working between providers and the public sector Elsewhere the document refers to partnership, and it seems clear that partnership, rather than competition, would be the better model for delivering a good service. It is welcome that the document proposes to involve the voluntary and community sector (VCS); but if the process is based on competition, voluntary organizations will be forced to compete with each other instead of collaborating. They will also be in competition with the private sector, which has far greater resources for drawing up bids, but often little or no experience of delivering this specialized service. The term 'supply chain' implies that commercial organizations would sub-contract work to local voluntary organizations. These would then be in a subordinate position, depriving them of their autonomy and the willingness to experiment which are the greatest strengths of the third sector. There have been instances where a commercial

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organization, having won a contract, poaches staff from voluntary organizations, which weakens them and their ability to do their work. In social programmes, success depends mainly on good relationships, and the major expense will inevitably be staff. In commercial organizations, this will lead to pressure to reduce staff, for example by increasing the number of people supervised by one person, and/or reducing the amount of time spent with each client. There is also pressure to reduce staff by using technological devices such as electronic tags, combined with the threat of sanctions for any lapses. All these factors make it more difficult to form good relationships. Also, the competitive model is based on the assumption that failure to reach targets will result in the contract being transferred to another provider, which means breaking off relationships and having to build new ones. Efficient structural design and integration with local partnerships The ability of sentencers to select appropriate sentences depends on the availability of suitable programmes in the community, as has been mentioned above. In the case of restorative justice, this could be provided by a nationwide network of local voluntary organizations, overseen by a national body to agree and maintain standards, covering both the practice of individual facilitators and the governance of the organizations. The national body would work in partnership with local probation services to establish such services, and it would be a key performance indicator for the probation service to ensure that there was one operating in their area. Affording the reformed system The earlier in the criminal justice process restorative justice is used, the greater the saving of time and money. Hence the first gap in the provision of restorative justice is at the pre-trial stage. It is open to the prosecutor to decide not to prosecute if the defendant has put right the loss or harm that was caused, and in several countries the main source of referral to restorative justice is the prosecution service. It is not necessary for the accused to enter a full plea of guilt at this stage; in New Zealand and several European countries it is only necessary that he 'does not deny' some involvement. This course is obviously only open to the prosecutor if a mediation service is available. Another possible method is referred to below. In theory, facilitation could be done by probation or police officers, provided they have received adequate training for this different way of working; but at a time of cut-backs it is difficult to see how they could do it except at the expense of other duties. The involvement of the VCS is desirable for its own sake, as part of government policy, and has the additional advantage of low costs, since it relies largely on volunteers.

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How would the proposals work? Maximising the results from Government and public sector resources? Given the need to reduce public expenditure, the most effective policy is not to require cuts across-the-board, but to strengthen the more cost-effective services, to enable reductions to be made in the more expensive ones. This could be done by adapting the payment-by-results basis: specific community-based programmes would receive funding dependent on achieving measurable results such as either a reduction in the number of cases brought to court (which would result from either a reduction in crime or an increase in diversion to community-based programmes); or a reduction in the number of months' imprisonment imposed by the local court (which would result in a reduction in the prison population). Programmes would be monitored to ensure that the offenders referred to them were suitable, that victim satisfaction was maintained, and that the local crime rate decreased, or at least did not increase. Voluntary organizations in particular will be able to deliver a more effective service if so much of their effort does not have to be devoted to fund-raising and tendering; this is a form of bureaucracy, which the Ministry rightly wants to reduce (p.8). Enhancing outcomes Programmes should include a process for feedback of factors associated with crime to the authorities associated with social policy. Restorative justice, with its nonadversarial method of dialogue, is especially suited to this. It also identifies the needs of victims and offenders for services which are needed to assist their support and rehabilitation. It should, therefore, be included in the list of requirements on p. 30 (para. 2). Building new flexibility into the delivery of community orders Restorative justice is especially suitable for this, because it involves victims and offenders in agreeing the best way for the offender to make reparation; this will often include taking part in a rehabilitative programme designed to reduce future criminal behaviour. The over-reach of the criminal justice system is not only expensive but actually counterproductive. Criminal convictions have a stigmatizing effect which makes it harder for offenders to 'go straight'; cases should therefore be diverted where criminal prosecution is not essential. In New Zealand and several European countries a substantial number of minor offences are diverted in this way. Restorative justice is an effective way of doing so, because it is not a 'let-off': it makes more demands on offenders than punishments do, in facing up to the effects of their actions on victims.

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This is an additional reason for establishing the local mediation services mentioned above. Would the payment structure improve performance? The measurement of re-offending is complex, as the consultation document recognises (pp. 17-18). A binary measure is unsatisfactory; a more realistic picture of outcomes would require categories such as those used by Maxwell and Morris (2001, p. 249): the persistent reconvicted, the improving reconvicted (offended for a time but then stopped), the occasional reconvicted (2 to 5 offences), the once-only convicted, and the not reconvicted. Failing that, at least there should be the distinction, used in Ministry of Justice research, between preventing any reoffending and reducing the number of re-offences (Bewley 2012, Shapland et al. 2011). It would be considerably simpler and less expensive to use an indirect measurement of re-offending that was directly linked to cost savings, such as a reduction in the number of cases coming to court or a reduction in the number of months' imprisonment imposed, as proposed above. These would be coupled with checks of the crime rate to ensure that the saving in costs was not accompanied by an increase in crime. Bureaucracy could be avoided in the voluntary sector by minimizing the time spent on tendering and grant applications; in particular, when a contract was fulfilled satisfactorily, it should be renewed without a repetition of the tendering process. This would also assist in maintaining continuity of relationships. Inspection should include regular meetings with managers, staff, victims and offenders (and relatives or guardians in the case of juveniles), to assess whether the programme was helpful in supporting victims, holding offenders to account, and enabling them to fulfil their agreements, with a minimum of 'ticking boxes'. The voluntary and community sector should receive assistance in applying for contracts in its own right, and not be dependent on sub-contracts from commercial organizations. What legislative changes are needed? Diversion by prosecutors to enable a restorative process to take place is already possible under the Code for Crown Prosecutors (para. 5.10 h), but it would be helpful if this was confirmed in statute. This has the advantage that the sanction for non-compliance would be prosecution, rather than an additional penalty. The principle of the Deferred Prosecution Agreement (DPA), contained in Schedule 16, para. 5(3) of the Crime and Courts Bill, which is currently available only to a body corporate, a partnership or an unincorporated association, could be appropriately adapted to apply to individuals, as proposed by Lord Marks of Henley-on-Thames

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(Hansard [HL] 13 November 2012, col. 1479) and not ruled out by the Government. The requirements that a DPA may impose include, for example: to compensate victims of the alleged offence; to donate money to a charity or other third party; to disgorge any profits from the alleged offence; to implement a compliance programme; to co-operate in any investigation related to the alleged offence; to pay any reasonable costs of the prosecutor. The DPA may impose time limits for compliance. Defendants should not, however, avoid prosecution solely because they pay compensation, as the Code rightly says. The role of the residual probation service and the new Police and Crime Commissioners As proposed above, the probation service should be encouraged, through key performance indicators, to promote the establishment of local services for the delivery of restorative justice. The availability of restorative justice services should also be one of the Commissioners' key performance indicators. Maintaining standards The Restorative Justice Council is already accrediting individual practitioners, and its role should be expanded to include the promotion of local mediation services and their accreditation and supervision, in partnership with the probation service. As Baroness Linklater has said: The proposal that [restorative justice] should be readily available to the courts, victims and offenders is an enormously important move. It represents the embodiment of the same principles of effective justice that I have already discussed-namely awareness, knowledge, understanding and meaningful engagement with the participants, particularly victims. I have supported these principles and the work of the Restorative Justice Council for years. I welcome these proposals as having the best possible potential for enabling positive outcomes following the damage of crime. However, she warned: My caveat is that it will take a great deal of time and large investment to provide adequate numbers of suitably trained and accredited facilitators, who are the key to the process. Sentencers who would be initiating the process currently have no established tradition in the use of RJ. They would need training as well as convincing. The whole process will be extremely complex and expensive, and it will be vital to ensure that the

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quality of delivery is of the best and not rolled out in a piecemeal fashion. It would be a disaster if expectations were raised without adequate quality delivery. That would destroy confidence and set the programme back for a long time. The Government must clarify not only how much they are planning to invest in training, promoting and delivery but the estimated timescale for the rollout of RJ. I cannot imagine that it will become widely let alone generally available for some considerable time, even with the expert advice and support of the Restorative Justice Council and other agencies. (Hansard [HL] 30 Oct 2012, Column 534-5) Transforming rehabilitation If rehabilitation is to be transformed, the emphasis needs to be changed. The attempt to control behaviour by fear only works when the individual perceives a high risk of being found out and not always then. It is also an unattractive basis for a society based on mutual respect. Motivating people to behave by building on the individual's self-worth and need to be valued is ultimately more effective, although initially it may be more difficult. Control is obviously necessary, but the key words should be to persuade and enable. One important way of doing this is through restorative justice, which surprisingly is not mentioned in the document. This is a way of encouraging empathy, although of course it cannot guarantee it. It is not easy for the offender, but instead of pain inflicted by the authorities, which makes the offender think of himself, he has to face the painful realization that he has hurt someone else. It is a voluntary process (and some offenders cannot face it, which contradicts the claim that it is not 'tough' enough), but for those who do, and undertake to make reparation, they are more likely to complete it because they have agreed to it. Reparation is not limited to an apology or compensation: what many victims want most is that the offender takes action that will make him less likely to offend again. At this point there is a responsibility on the rest of the community to enable him to do so. If he needs work skills, literacy or numeracy, or treatment for addiction, suitable programmes need to be available. They will of course also be required in those cases where a restorative conference is not possible, for example where the victim does not choose to take part. Is punishment the answer? A re-think is needed of the assumption that punishment, in the sense of deliberate infliction of pain, is effective in controlling behaviour or desired by a majority of the public. An ICM survey of 1,085 victims of non-violent crime for the Ministry of Justice (16 November 2007) found that although victims of non-violent crimes in the UK want offenders to be punished, they do not believe that prison is always the

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answer. 81% would prefer an offender to receive an effective sentence rather than a harsh one with nearly two thirds (63%) disagreeing that prison is always the best way to punish someone. An overwhelming majority of respondents (94%) said the most important thing to them was that the offender did not do it again, while fewer than half placed punishment as the most important part of an offender's sentence (49%). These findings support the view of eight in ten (81%) victims in the UK who would be in favour of community sentences if they prevent an offender from reoffending. And there is data to suggest that they do; evidence has found that offenders who commenced a community sentence in the first quarter of 2004 had lower reoffending rates than predicted (50.5% vs 54.1% respectively). 58% of victims agreed that it would be harder for an offender to face up to their problems in the community than receiving a short-term prison sentence. The consultation document repeatedly uses the word 'punishment', and the Crime and Courts Bill requires courts to include in community orders at least one requirement imposed for the purpose of punishment. There is considerable evidence that punishment per se often has a limited or short-term effect, and can be counterproductive (Wright 2008, chapter 2); yet members of the public are encouraged by some politicians and journalists to believe that punishment is an appropriate response to crime. The Bill contains no definition of punishment; members of the House of Lords have pointed out in debates how unclear the word is. Many types of order could be regarded as punishment, for example by requiring people to spend time in certain ways. Ministry of Justice research (Bewley, 2012) at one point defines a 'punitive requirement' as unpaid work or a curfew (p. ii), elsewhere as unpaid work, a curfew (electronic monitoring), exclusion (from a particular street or shop), a prohibited activity or a fine (p. 1). The research found that adding a punitive requirement (unpaid work or a curfew) to a supervision requirement had no impact on the likelihood that the offender re-offended, but reduced the number of re-offences committed within one year by 8.1 per cent, most of this effect being due to the curfew. Adding a punitive requirement to a supervision requirement plus a programme requirement (such as anger management or substance relapse prevention) reduced the number of re-offences within two years, but not by a statistically significant amount. Adding punishment to other interventions made no statistically significant difference. The research did not report the comparative effects of requirements taken singly, e.g. punishment alone versus a programme alone. If the punitive requirement was the starting point, it worked better when supervision or a programme was added to it both of which are interventions requiring personal contact and a relationship. It seems likely that the effect of the curfew was not so much that it is punishment (i.e. unpleasant) as that it restricts a person's freedom to go out and possibly get into trouble.

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Similarly, it is commonly assumed that the primary purpose of prisons is to punish and that punishment will deter people from re-offending. But apart from physical protection of the public, which applies only to the minority of very serious offenders, the main preventive function of prison has to be motivating and encouraging offenders to avoid crime after release; adding gratuitous unpleasantness to the regime is likely to undermine this aim rather than assist it. Conclusions Public policy statements have to reassure the public by showing that firm action is being taken against crime; but there is evidence that punishment in itself has at best a limited effectiveness (see above, and Wright 2008, chapter 2) and that what the public wants, more than punishment, is effective action. The discussion would be clarified if the word 'punishment' were replaced by 'consequences', which sounds no less firm, but avoids the implication that pain is being inflicted for its own sake. The consequences might well be unpleasant, such as a requirement to spent time on a programme or unpaid work, or attending a restorative meeting, and to that extent they would be deterrents; but they would be imposed for a constructive purpose, not because they were unpleasant. This would increase their chances of being complied with, and of succeeding. While offenders have responsibility for their acts, it needs to be remembered that many of them act under the pressure of their circumstances, as the Secretary of State rightly points out in his foreword (see also Maxwell and Morris 2001 and much criminological research), and pressure from their peers (members of a gang or even on occasion of a boardroom); a crime reduction policy must therefore focus on reducing these pressures, as well as persuading and enabling offenders themselves to live within the law. References Bewley, H. 2012, The effectiveness of different community order requirements for offenders who received an OASys assessment. Ministry of Justice Research Series 17/12. http://www.reuters.com/article/2012/08/02/us-usaGoldman, 2013 See: philanthropy-socialimpactbonds-idUSBRE8711I420120802, accessed 8 April 2013. House of Commons Justice Committee 2011, The role of the Probation Service, Eighth Report of Session 201012, HC 519-I, The Stationery Office, London. Maxwell, G. and Morris, A. 2001, Family group conferences and reoffending, in A. Morris and G. Maxwell, eds Restorative justice for juveniles: conferencing, mediation and circles, Hart Publishing, Oxford and Portland.

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Ministry of Justice 2010, Breaking the cycle: effective punishment, rehabilitation and sentencing of offenders. Cm 7972, The Stationery Office, London. Prison Reform Trust, November 2012, Bromley Briefings Prison Factfile, PRT, London Shapland, J., Robinson G. and Sorsby A. 2011, Restorative justice in practice: evaluating what works for victims and offenders. Routledge, London. Wright, M. 2008, Restoring respect for justice. Waterside Press, Hook, Hampshire. Wright, M. 2010, Towards a restorative society: a problem-solving response to harm. Restorative Justice Council, London.

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From Boardroom to Living Room, does mediation fit all? (a personal view)
Kate JACKSON32 The shimmering glass tower offices in the City would seem at first glance to have little in common with a housing estate in west London. Commercial mediations are surely companies haggling over money and community mediations involve the personal issues of warring neighbours. However, in reality the issues in each often start with something as basic as human emotion. Though the disputes will be over different subject matters, of vastly different values, it is surprising how often both are triggered by the feelings and perceptions of the parties involved. This article will look at community and commercial mediation and assess how two sets of cases that seem so different actually appear to have much in common. Commercial Mediation Commercial mediations concern disputes between companies. These can range from breach of contract, where one party feels that the other has not fulfilled its contractual obligations, or problems arising from a business joint venture, or even that one company feels another has infringed its intellectual property rights, for example by marketing a product similar to their own. Community Mediation Community mediations generally concern issues between neighbours or community groups, usually concerning noise, inconsiderate or anti-social behaviour and sometimes allegations of racism or other discrimination. Common Cause Community mediations understandably have a high degree of emotion: the issues centre on peoples enjoyment of their own homes and excessive noise or anti-social behaviour from a neighbour can lead to feelings of anger, despair and consequent health problems that come from tiredness and stress.

Commercial mediator, ranked as a leading individual by Chambers and Partners Directory and The Legal 500 and volunteer for the Kensington & Chelsea Community Mediation Service (CALM) since 2009. Email: kate@mediatorkjackson.com

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However, though money is the key issue at the heart of most commercial mediations, there is also a surprising amount of emotion involved in these cases too. Sometimes someone feels that they have been lied to or duped by an individual in the other company and seeks redress or acknowledgment of this. Other times it may be that the individuals involved in the original events are protecting their own personal position and career within the firm and cannot look objectively at the issues. Common Aims Whether commercial or community the aim of mediation is to first, find out what the parties really need and then, to help them find a solution to it. Mediation in any setting can help the parties to focus on what they actually need (which is often quite different to what they are claiming). In a community setting, it may be, for example, that a level of noise in the afternoon will be tolerated but there needs to be quiet in the morning to allow a worker returning from a nightshift to sleep. In commercial mediation, it may be, for example, that certain products from a range or specific marketplaces are essential to a company, while others could be relinquished as part of a deal. Individuals as Decision Makers In community cases, an individual is clearly making the decision as to any agreement reached. However, with commercial mediation, even though the named parties are corporates, it is necessarily still individuals (or groups of individuals) making the decisions. These individuals are working for their companies but they bring their own values and views to their corporate roles. How they exercise this judgement on the day can depend considerably on what they hear and see, for example an insurer could decide whether to take a narrow or broad interpretation of the policy wording, each of which would be justified legally as there is rarely only one definite answer on issues of legal interpretation. Mediation gives an opportunity for parties to better understand the others viewpoint (and also sometimes to understand why certain conduct/events occurred). In community mediation, often a significant breakthrough occurs when the parties speak directly and one understands that the other is not making the noise on purpose. For example, if one party learns that the other has been using the washing machine at 2am because their children were sick, it does not take away the effects of the noise, but it can reduce the ill-feeling and make a party more willing to talk. Similarly in commercial mediation, whereas courts will decide purely the legal case, mediation gives a chance to combine the legal case with the moral one. For example a company where for tax/legal reasons the ownership structure did not accurately

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reflect the contributions made by its respective directors, after a mediation persuaded the dominant director to agree a settlement far more generous than would have likely been awarded by a court but one that more fairly reflected the many years of hard work by the other director. Solutions In both commercial and community cases once a greater understanding is achieved, solutions can come much more easily. In a community setting, a simple understanding of the layout of the homes (for example appreciating that a kitchen is over a bedroom and the effect that this may have on the ability to sleep) or understanding the schedule of the neighbour better (and being able to focus on key times to keep noise low) can greatly assist. In commercial mediation often two companies have different priorities; one may wish to focus on the EU market, another on the US, each may value different products, in some cases, one party simply wants an apology from the other. Agreements Whilst both community and commercial mediations aim to achieve an agreed settlement, those reached in community mediations are generally not legal binding. Conclusion Few would doubt that community mediations involve a considerable amount of emotion and the opportunity for parties to express that, have it heard and discuss how to improve the situation is why mediation is so effective in the community. Whilst commercial mediations usually have money as a driving factor, they involve a surprising amount of emotion too. A number of commercial cases have settled with an apology or recognition of wrongdoing being a significant part of the settlement. In other cases the opportunity to talk about the conduct that lead to the dispute and understand in more detail what happened, has been the catalyst that has led to parties that were previously some distance apart, being able to reach a financial agreement.

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What are the similarities and differences between commercial and community mediations? (a personal view)
Jane COOKSEY33 Mediation is a useful process for enhancing communication and understanding between human beings to enable a resolution of their dispute. At its core there is no difference between commercial and community mediation. What is different is the approach of the people to the mediation and the concerns that they bring to be resolved. It is these aspects that create the need for a mediator to have some different approaches. In looking at similarities it may be more important to a mediator to notice the styles and approaches a party has to managing conflict. Looking at Jungs personality types (Sharp 1987) relating to how people operate he says they have a preference of how they approach what they perceive and how they judge what they perceive. What are the combinations of sensation, intuition, thinking or feeling that motivate individuals? Do they react mainly from sensation or from intuition? Do they prefer to make decisions from a basis of rational thought or through the gut reaction of how it feels? Thomas and Kilman34 have taken Jungs concepts further onto two scales, based on a partys level of assertiveness against their level of cooperativeness and labelled five modes of operation in conflict which will apply in how people approach a mediation whether it is community or commercial: 1. If competitive, a person tends to see it as win-lose and blames, accuses and labels the other using words such as must, have to and should. Mediators tend to call these people high conflict. 2. When accommodating, a party tends to view it as lose-win, speaks softly, gives in and goes along with what the other says for a peaceful life. These first two are extremes but pieces of behaviour many exhibit at different times in mediation. When angry people revert.

Jane Cooksey is a commercial, community, family and workplace mediator as well as a Psychologist and Solicitor. She is the founder and co-owner of Berkeley Square Mediation (www.berkeleysquaremediation.com) and a full time mediator. Email: janecooksey@gmail.com Thomas, K.W., Kilmann, R.H. 2010, Conflict Mode Instrument. Profile and Interpretive Report, CPP Inc., United States. See http://www.characterfirst.com/assets/Files/TKI-Sample-Report.pdf (accessed in March 2013)
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3. An avoidance approach means the person will not reveal anything, avoid eye contact, turn away their body, fidget, make jokes and change the subject so it becomes hard to facilitate. This inevitably ends up with a lose-lose outcome because the mediation process cant function until the mediator can get them past their evasion. 4. If a party has a compromising approach, they will see it as giving up some of what they want for the other party giving up some of what they want, which means they only reveal what they need superficially, stay strong, direct and in control, acknowledge the others needs superficially and negotiate well. A deal will be broken between parties but it wont be a true and satisfying settlement, merely a job done. It is often all that can be achieved in a time limited mediation. 5. A collaborative approach always creates the best outcomes. A party really listens not only to themselves but also to the other so they reveal what matters to them and hear what matters to the other. Separating the people from the problem, they can focus on their own interests and needs both for themselves and for the other, sometimes opening up to hearing them in a different way. Creative options can spark up, go back and forth and parties gain a sense of working together for better results. The beauty of mediation may enlighten them further. Settlements coming from this point in mediation are often better than expected. Both parties have changed the ways in which they see the dispute, hear the other side and discover what will work. Its not win-win, it is more like something has changed that enhances their business or their community. These personality types and their different approaches to conflict are happening in any mediation, whatever type it is and for a mediator its how they facilitate, manipulate and manage the process to enable the better changes to happen for the parties. Ideally, everyone in mediation reaches a true collaboration of creative solution making giving them the deeper experience which can be briefly described by what the letters in the word RESOLUTION spell out to show what can unfold in a mediation, commercial or community: R stands for the necessary respect and courtesy to all involved, E for the expression of what really matters, S for willingly sharing interests and needs including hearing the others, O for opening up to the difference that created the dispute, L for listening with compassion and without interrupting or judgement,

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U for understanding not only the other but their own behaviour in the dispute in ways they did not before and as a result what the conflict is really about, T for thinking up different solutions, I for imagining what might work for them as well, O for offering reasonable and workable ideas for ways forward, and N is for the new, having gone through the process of change, left comfort zones to make leaps and having found the new idea that works to solve it. In either community or commercial mediation, provided people attend with full authority and intention to settle, they can often come away surprised at what can be achieved in mediation. So what are the differences that do exist between community and commercial mediation? Here are just a few: 1) Trust and rapport in commerce the people dealing with the dispute need to feel that the matter is being handled by someone who understands what they are going through. In particular, if a party thinks they are important as many company directors may do, they may need to think their mediator is important too. For example, if a conflict is in the middle of a legal process, a mediator who knows about how their proceedings work is important to parties. When the matter is in a specialist area, for example, intellectual property, knowing the jargon and structure of how IP disputes pan out for parties is essential. 2) Experience, gravitas and knowledge of specialities in conflict areas may feel essential to the parties in order not to have to lose valuable time explaining to a mediator how things work for the business. 3) Many commercial directors wish to feel that they are dealing with someone who can understand board level decisions and has experience at the sort of commercial level they operate. Without someone they feel is similar to their level of business experience it may not be easy for them to feel relaxed and in safe hands. 4) A good commercial mediator needs sufficient authority in his/her self to command respect and courtesy from someone like a fast rising entrepreneur who deals with conflict by very tough negotiation as part of daily activities. 5) Frequently parties have such conflicting interests and needs that there are things they have to keep secret. Private meetings in commercial mediation are essential for discussion about matters that cannot be disclosed to the other side.

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6) Commercial mediators have to add a number of extra techniques to their skills such as challenging from different commercial perspectives which requires knowledge of business operations. Using anchoring of the dispute may be necessary so that parties make offers that are not demeaning and likely to cause further polarisation. A mediator may have to make many judgements in commercial mediation about whether or not to even put a proposal to the other side or how to put it in an acceptable way. 7) The lawyers may be put together on their own to settle some legal difference or establish a way of dealing with it or the experts present may be put in a separate room to sort out points of agreement and points of difference. Sometimes the parties themselves might go in a room alone to break a deadlock between them. What happens in a commercial mediation depends on what the parties need from the flexible process to take settlement forward and this varies hugely depending on the type of people present, their interests and needs. 8) Often offers are not used when requested or used at more appropriate moments or only explored as possibilities. Many times they might be introduced to a party in such a way as the party may think they came up with it. 9) At times, development of how to negotiate is a one to one with the mediator so that teaching to negotiate, developing what and how to put it becomes a part of the skills needed. This may be particularly important to maintain balance and fairness. 10) There may be things developing in commercial mediation that require awareness of what cannot be agreed and finding out how to skirt round difficulties this can create may be needed in order to take parties to where settlement can occur. 11) A good commercial mediator keeps awareness of ensuring any settlement includes everything necessary, including at times, questioning why something that might be necessary that has not been included has been left out. Spotting what is missing may be another skill a mediator has. 12) Finally, a commercial mediator may well need to play the maverick and surprise parties into change with something unexpected within the mediators behaviour. It will be whatever creates the necessary process to sort out the content the parties bring. Ultimately, every mediation is different because its about the people, how they are, what they bring, how they approach and deal with their conflict and how much they can be facilitated to go into the process to allow it to happen to create the change they need.

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Conflict is a massive and golden opportunity in any of its forms for each of us to embrace change for the better. What is invaluable is that it is like learning how to stay in the saddle of an untamed horse and achieve riding the impossibly bucking creature to a point of peace and harmony. References Sharp, D. 1987, Personality types. Jungs Model of Typology, Inner City Books, Canada. Thomas, K.W., Kilmann, R.H. 2010, Conflict Mode Instrument. Profile and Interpretive Report, CPP Inc., United States. See http://www.characterfirst.com/assets/Files/TKI-Sample-Report.pdf (accessed in March 2013)

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Justiia restaurativ n Romnia de la teorie la practic

Lect.univ.dr. Ana BLAN35 Vicepreedinte, Societatea Romn de Criminologie i Criminalistic Mediator, Colegiul Mediatorilor, Romnia Justiia restaurativ este un concept teoretic puin cunoscut, chiar i n rndul specialitilor din domeniul dreptului, cu att mai puin abordat n viaa real. Instituionalizarea medierii i apariia practicii n domeniu, cu pai timizi i uneori contestat cu virulen n ceea ce privete recurgerea la aceast modalitate de soluionare a disputelor n cauze penale, a creat baza legal pentru ca elemente ale justiiei restaurative s i gseasc locul n strategiile i practicile care vizeaz reintegrarea social a celor care au comis infraciuni. O trecere n revist a recomandrilor internaionale cu privire la utilizarea medierii n cauze penale, prezentarea legislaiei naionale privind medierea i modul n care se poate crea o practic benefic nu numai victimelor i infractorilor, dar i comunitii constituie subiectele acestui articol, din perspectiva unui actual mediator, cu experien n sistemul justiiei penale. Introducere ntrebri legate de modaliti alternative sistemului clasic de justiie n rezolvarea unor cazuri penale au devenit o preocupare pentru mine n anul 1997, n timpul vizitrii unui penitenciar pentru minori i tineri. Atunci, printre alte activiti de rutin, am stat de vorb cu un adolescent de 16 ani, condamnat la doi ani de nchisoare cu executare pentru comiterea unei infraciuni de furt sustragerea unei cutii cu faian dintr-o magazie aflat n curtea vecinului i folosit pentru renovarea propriei buctrii. Am imaginat atunci un scenariu n care poliistul/procurorul/judectorul, sesizat de ctre pguba, st de vorb cu prile (copilul i prinii, vecinul), acetia cad la nvoial pentru restituirea cutiei cu faian sau a contravalorii acesteia, copilul i cere scuze pentru necazul provocat, prinii i exprim regretul pentru neplcerile cauzate i se angajeaz s l supravegheze mai cu atenie pe acesta, iar poliistul/procurorul/judectorul l avertizeaz asupra consecinelor n cazul n care astfel de fapte se repet. Simplu, eficient, fr irosire de timp i resurse (Blan, 2011). Scenariul a rmas, cel puin nc 10 ani de atunci, n domeniul ficiunii, deoarece nu erau ntrunite condiiile (legislative, procedurale, mentale, atitudinale) care s permit recurgerea, n anumite cazuri, la ceea ce n literatura de specialitate este cunoscut sub numele de justiie restaurativ (Marshall, 1999). Am ateptat ns, cu rbdare i interes, momentul n care o astfel de abordare va fi posibil i n Romnia. Apariia
35

Email: abalanro@yahoo.com

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Legii nr. 192 din 2006 privind medierea i organizarea profesiei de mediator a creat premisele recurgerii la mediere inclusiv n cazurile penale, iar intrarea n vigoare a noului Cod penal i Cod de procedur penal vor extinde i dezvolta cadrul legal pentru ca medierea s poat deveni o metod eficient de prevenire i control a delincvenei, dac instituiile i persoanele implicate vor afla i nelege avantajale recurgerii la mediere. Aspectele cuprinse n acest articol reprezint o perspectiv proprie (bazat pe experiena n proiecte internaionale care vizeaz mbuntirea sistemului de justiie i cea de mediator autorizat) cu privire la modul n care transpunerea n practic a prevederilor legale privind medierea poate contribui, cu efecte benefice pentru toi cei implicai victime, infractori, familiile acestora, instituii de stat, asociaii profesionale ale mediatorilor, comunitatea, n general la creterea calitii actului de justiie i, implicit, a satisfaciei i siguranei comunitare. Reglementri internaionale privind justiia restaurativ Comunitatea european manifest un interes constant i continuu n promovarea medierii n materie penal, ca opiune flexibil i cuprinztoare, axat pe rezolvarea problemei i pe implicarea prilor, n completare sau ca alternativ a procedurii penale tradiionale. n acest sens, Consiliul Europei a elaborat o serie ntreag de recomandri ctre statele membre, printre care: Recomandarea (85) 11 privind poziia victimei n dreptul penal i procedura penal; Recomandarea (87) 18 privind simplificarea justiiei penale; Recomandarea (87) 20 privind reaciile sociale fa de delincvena juvenil; Recomandarea (87) 21 privind asistena victimelor i prevenirea victimizrii; Recomandarea (88) 6 privind reaciile sociale fa de comportamentul infracional al tinerilor provenii din familiile emigrante; Recomandarea (92)16 privind reglementrile europene asupra sanciunilor i msurilor aplicate n comunitate; Recomandarea (95) 12 privind administrarea justiiei penale; Recomandarea (98) 20 privind medierea familial; Recomandarea (99) 19 privind medierea n materie penal; Recomandarea (22)2000 privind mbuntirea implementrii regulilor europene pentru sanciuni i msuri comunitare. Toate aceste documente au ca element comun identificarea unor modele consensuale de rezolvare a conflictelor, iar la baza promovrii lor st o nou filosofie, prezentat n literatura de specialitate sub diverse titulaturi: justiie comunitar, justiie restaurativ, justiie informal. n practic, se folosete n mod frecvent denumirea de mediere [Memorandum explicativ la Recomandarea (19)99 privind medierea n materie penal], ns trebuie precizat c nu exist o relaie de sinonimie ntre noiunea de mediere i cea de justiie restaurativ; aceasta din urm reprezint un concept mult mai larg, n care se include i medierea, care este de fapt principala form n care se concretizeaz justiia restaurativ (Walgrave, 1998), alturi de o mare varietate de forme particulare incluse n conceptul restaurativ.

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Conform unei alte definiii, justiia restaurativ este prezentat ca fiind un rspuns la infraciune focalizat pe victim, care ofer celor implicai n svrirea infraciunii victim, infractor, familiile acestora, comunitate prilejul de a reaciona direct la prejudiciul moral i material cauzat prin infraciune (Umbreit, 1994). Recomadarea (99)19 privind medierea n materie penal este un prim instrument pentru implementarea medierii victim-infractor, ntruct ncurajeaz statele membre s asigure posibilitatea medierii, ca serviciu confidenial i voluntar acceptat, n toate etapele procesului penal. Un alt document care sprijin dezvoltarea justiiei restaurative este Proiectul de rezoluie al ONU referitor la programele de justiie restaurativ n domeniul penal, aprobat de Comisia pentru Prevenirea Criminalitii i Justiie Penal a ONU, n aprilie 2000. La 8 decembrie 2000 a fost constituit Forumul European pentru Mediere Victim/Infractor i Justiie Restaurativ. Scopul acestui organism const n sprijinirea, implementarea i dezvoltarea n Europa a medierii victim/infractor i a altor practici specifice justiiei restaurative, stabilindu-se ca prioritate colaborarea dintre mediatori, servicii de mediere, responsabili cu elaborarea politicilor penale, cercettori i practicieni n domeniul justiiei penale din Europa. Decizia Cadru a Consiliului Uniunii Europene referitoare la statutul victimelor n cadrul procedurilor penale, prin care statele membre ale UE se oblig s-i adapteze legile naionale, astfel nct s ofere victimelor infraciunilor un minimum de protecie cuprinde, n art. 10, urmtoarele referiri la medierea n sistemul de justiie penal: 1) Fiecare stat membru trebuie s promoveze medierea n cazurile penale pentru infraciunile pe care le consider adecvate acestui tip de msur. 2) Fiecare stat membru trebuie s se asigure c poate fi luat n considerare orice nelegere ntre victim i infractor aprut n cursul unei asemenea medieri n cazuri penale. Reglementri naionale privind medierea n cauzele penale Ca urmare a acestor recomandri i n vederea alinierii la standardele europene, avnd n vedere obinerea statutului de ar membr a Uniunii Europene, Romnia a reglementat medierea i profesia de mediator prin adoptarea Legii nr.192/2006, cu modificrile i completrile ulterioare. Scopul acesteia vizeaz ridicarea calitii actului de justiie prin satisfacerea mai rapid a intereselor prilor, prin reducerea volumului de activitate al instanelor de judecat i degrevarea lor de ct mai multe cauze, care pot fi soluionate de ctre pri, n afara instanelor de judecat.

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Medierea este definit n art.1 din legea menionat ca: O modalitate de soluionare a conflictelor pe cale amiabil, cu ajutorul unei tere persoane specializate n calitate de mediator, n condiii de neutralitate, imparialitate i confidenialitate, avnd liberul consimmnt al prilor. Medierea se bazeaz pe ncrederea pe care prile o acord mediatorului, ca persoan apt s faciliteze negocierile dintre ele i s le sprijine pentru soluionarea conflictului, prin obinerea unei soluii reciproc convenabile, eficiente i durabile. Dispoziii speciale privind medierea n cauzele penale sunt cuprinse n art.67-70 din Legea nr.192/2006. n conformitate cu acestea, medierea se aplic n cauzele penale care privesc infraciuni pentru care, potrivit legii, retragerea plngerii prealabile sau mpcarea prilor nltur rspunderea penal. Conform Codului penal n vigoare, pot face obiectul procesului de mediere urmtoarele infraciuni: lovirea sau alte violene, vtmarea corporal i vtmarea corporal din culp, violarea de domiciliu, ameninarea, violarea secretului corespondenei, divulgarea secretului profesional, violul, seducia, pedepsirea unor furturi la plngerea prealabil, abuzul de ncredere, distrugerea, tulburarea de posesie, abandonul de familie, nerespectarea msurilor privind ncredinarea minorului i tulburarea folosinei locuinei. De asemenea, poate face obiectul medierii latura civil a tuturor celorlate infraciuni prevzute n Codul penal i legile speciale. Nici persoana vtmat, nici fptuitorul nu pot fi constrni s accepte procedura medierii, iar n cazul n care acetia i dau acordul, medierea trebuie s se desfoare n aa fel nct s fie garantat dreptul fiecrei pri la asisten juridic i, dac este cazul, la serviciile unui interpret. Procesul-verbal prin care se nchide procedura medierii trebuie s arate dac prile au beneficiat de garaniile prevzute ori, dup caz, s menioneze faptul c au renunat expres la acestea. n cazul minorilor, garaniile prevzute de lege pentru desfurarea procesului penal trebuie asigurate, n mod corespunzator, i n cadrul procedurii de mediere. Dac edinele de mediere se desfoar naintea nceperii procesului penal i se finalizeaz prin mpcarea prilor, persoana vtmat nu mai poate sesiza, pentru aceeai fapt, organul de urmrire penal sau, dup caz, instana de judecat. Dac procedura de mediere a fost declanat n termenul prevzut de lege pentru introducerea plngerii prealabile, acest termen se suspend pe durata desfurrii medierii. n cazul n care prile aflate n conflict nu s-au mpcat, persoana vtmat poate introduce plngerea prealabil n acelai termen, care i va relua cursul de la data ntocmirii procesului-verbal de nchidere a procedurii de mediere, socotindu-se i timpul scurs nainte de suspendare. n cazul n care medierea se desfoar dup nceperea procesului penal, urmrirea penal sau, dup caz, judecata se suspend, n temeiul prezentrii de ctre pri a

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contractului de mediere. Suspendarea dureaz pn cnd procedura medierii se nchide prin oricare dintre modurile prevzute de lege (ajungerea la o nelegere ntre pri i soluionarea conflictului, constatarea de ctre mediator a eurii medierii sau depunerea contractului de mediere de ctre una dintre pri), dar nu mai mult de 3 luni de la data semnrii contractului de mediere. Mediatorul are obligaia s comunice organului judiciar acordul de mediere i procesul-verbal de nchidere a medierii n original i n format electronic, dac prile au ajuns la o nelegere sau doar procesul-verbal de ncheiere n celelalte situaii. Procesul penal se reia din oficiu, imediat dup primirea procesului-verbal prin care se constat c prile nu s-au mpcat, sau, dac acesta nu se comunic, la expirarea termenului de 3 luni prevzut de lege. Avantaje ale medierii n cauzele penale Termenul mediere n sens general (care nu este specific contextului penal) desemneaz procesul de soluionare a disputelor, implicnd participarea unei a treia pri (neutre), n scopul facilitrii ajungerii la un acord ncheiat prin liberul consimmnt al prilor. Medierea n materie penal este definit ca un proces desfurat ntre victim i infractor, pri care au posibilitatea ca, n mod voluntar, s participe activ la rezolvarea problemelor rezultate n urma comiterii unei infraciuni, beneficiind i de ajutorul unei a treia pri neutre care este un mediator profesionist sau un membru al comunitii (Recomandarea (19)99 privind medierea n materie penal). Medierea se poate realiza direct, atunci cnd prile se ntlnesc n prezena unui mediator sau indirect, cnd fiecare parte se ntlnete separat cu acesta. Prile medierii pot fi: victima i infractorul, alturi de care pot fi prezente i rudele lor, reprezentani ai comunitii sau reprezentani din partea autoritilor locale. n toate cazurile este esenial ca mediatorul s fie neutru, iar participarea prilor, voluntar. Pe plan internaional, n rndul specialitilor preocupai de instituia medierii se manifest tot mai pregnant opinia c aceast form alternativ de rezolvare a conflictelor poate marca un progres semnificativ fa de sistemul penal actual, datorit avantajelor pe care le aduce pentru toate prile implicate: victim, infractor, comunitate, societate (McKay, 2007). Avantajele justiiei restaurative pentru victim sunt multiple: aceasta are un rol sporit n desfurarea sesiunilor de mediere, problema poate fi rezolvat rapid, cu o procedur clar legat de fapta n sine, nu desprit cronologic de ea. n soluionare poate fi angrenat familia i comunitatea, iar contactul dintre victim i autorul infraciunii poate fi benefic: infractorul poate cere iertare direct victimei i poate repara prejudiciul. Ca urmare, prin rapiditatea derulrii procesului de mediere ntre

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cele dou pri implicate, satisfacia este mai apropiat fa de momentul comiterii infraciunii. Nu sunt de neglijat nici avantajele justiiei restaurative n cazul infractorului: acesta este implicat n decizia privitoare la sanciune sau compensaii, i asum responabilitatea pentru faptele sale ilegale i suport consecinele, accept repararea prejudiciului moral i/sau material. ntruct nu se recurge la privarea de libertate nici anterior audierii, nici dup (arest preventiv sau detenie), contactul cu sistemul judiciar i implicarea acestuia sunt evitate, cu efecte directe asupra reducerii riscului de recidiv (Umbreit, 2001). Implicarea n procesul de mediere a victimei i a infractorului este diferit fa de procedurile penale obinuite, unde statul i infractorul sunt actorii principali. Un obiectiv al medierii const n a furniza prilor posibilitatea de a rezolva disputa n sensul n care doresc, prin bun nelegere i n beneficiul amndurora. Atingerea acestui scop implic un rol constructiv i activ din partea lor, uneori chiar inovator. Justiia restaurativ de la teorie la legislaie i practic Dei sintagma justiie restaurativ nu se regsete n nici unul dintre actele normative care reglementeaz modul de prevenire, control i sancionare a faptelor penale n Romnia, consider c dispoziiile speciale privind medierea n cauze penale (Legea nr.192/2006 cu modificrile i completrile ulterioare), coroborate cu prevederile din Codul penal i Codul de procedur penal n vigoare sunt suficiente pentru dezvoltarea practicii n domeniu. Cu toate acestea, puinele statistici disponibile cu privire la mediere arat c domeniul penal este aproape inexistent pe lista cazurilor soluionate prin aceast metod alternativ de rezolvare a disputelor (Clin, Clin, Coovanu, 2012). Care sunt motivele i ce se poate face pentru ca medierea n materie penal s devin o realitate? Profesia de mediator este relativ nou n Romnia, avnd n vedere c reglementarea ei s-a realizat n anul 2006, iar primii mediatori au fost autorizai ncepnd cu anul 2007. Fiind o instituie la nceput de drum, medierea, ca modalitate alternativ de rezolvare a disputelor, ncearc s i gseasc locul i rolul n rndul profesiilor liberale i s fac fa provocrilor caracteristice unei societi n care, prin tradiie i mentalitate, cei care au de rezolvat o situaie conflictual se adreseaz cu preponderen organelor judiciare. La aceasta se adaug i alte puncte slabe: insuficienta informare cu privire la mediere a categoriilor profesionale care ar trebui s fie interesate de modaliti alternative de rezolvare a disputelor judectori, procurori, poliiti, avocai, reprezentani ai autoritilor publice centrale i locale; slaba disponibilitate de

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utilizare a medierii victim-delincvent nainte de i dup pronunarea sentinei; inexistena fondurilor financiare necesare acoperirii costurilor procedurii medierii pentru utilizatori, n cazurile penale; lipsa unei pregtiri adecvate a mediatorilor pentru acest tip de dispute. Pentru nlturarea unora dintre aceste dificulti, au fost ntreprinse o serie de msuri i aciuni. Pe plan legislativ, au fost adoptate modificri succesive ale Legii privind medierea i organizarea profesiei de mediator, cu scopul de a promova medierea, ca metod alternativ de soluionare a disputelor n rndul justiiabililor. Cea mai semnificativ prevedere se refer la obligaia persoanelor fizice sau persoane juridice de a participa la edina de informare privind medierea, inclusiv dup declanarea unui proces n faa instanelor competente, n vederea soluionrii pe aceast cale a conflictelor n materie civil, de familie, n materie penal, precum i n alte materii (Ordonana de Urgen a Guvernului Romniei nr.90/2012). n conformitate cu aceste prevederi, participarea la o edin de informare referitoare la avantajele medierii a devenit obligatorie i n cazul infraciunilor pentru care retragerea plngerii prealabile sau mpcarea prilor nltur rspunderea penal, dup formularea plngerii, dac fptuitorul este cunoscut sau a fost identificat, iar victima i exprim consimmntul de a participa la edina de informare mpreun cu fptuitorul; dac aceasta refuz, edina de informare se desfoar separat. Dovada participrii la edina de informare privind avantajele medierii se face printrun certificat de informare eliberat de mediatorul care a realizat informarea. Dac una dintre pri refuz n scris participarea la edina de informare, nu rspunde invitaiei ori nu se prezint la data fixat, se ntocmete un proces-verbal, care se depune la dosarul instanei. Dei, iniial, nendeplinirea acestei obligaii a fost prevzut cu sanciunea respingerii de ctre instan a cererii de chemare n judecat ca inadmisibil, punerea n aplicarea a prevederii s-a amnat, n ceea ce privete cauzele penale, pn la intrarea n vigoare a noului Cod penal i de procedur penal, respectiv nceputul anului 2014. Ca urmare a recentelor modificri legislative, a crescut interesul pentru profesia de mediator: n Tabloul mediatorilor sunt nscrii peste 3.500 de mediatori autorizai, organizai n 88 de asociaii profesionale (www.cmediere.ro), iar numrul celor care urmeaz cursuri de formare n mediere este n continu cretere. Mediatorii au studii superioare, experien profesional anterioar (minim 3 ani vechime n munc) i provin din toate segmentele vieii sociale: asisteni sociali, avocai, notari, profesori, medici, psihologi, ingineri, diplomai, oameni de afaceri, foti poliiti, judectori, procurori. Au fost nfiinate birouri ale mediatorilor n toate zonele rii, mai ales n oraele reedin de jude n care funcioneaz judectorii, iar mediatorii s-au organizat i au ncheiat protocoale de colaborare cu instanele de judecat. Cu toate acestea, din datele oficiale rezult c numrul de cazuri rezolvate prin mediere n materie penal

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este extrem de redus 2 la Parchetul de pe lng nalta Curte de Casaie i Justiie i 3 acorduri ncuviinate de instanele de judecat n 2011 (Clin, Clin, Coovan, 2012). Dei, conform legii, medierea este o activitate de interes public, iar organele judiciare i arbitrale, precum i alte autoriti cu atribuii jurisdicionale informeaz prile asupra posibilitii i a avantajelor folosirii procedurii medierii i le ndrum s recurg la aceast cale pentru soluionarea conflictelor dintre ele (art.6 din Legea nr.192/2006), un procent redus de procurori i judectori sunt informai cu privire la legislaia privind medierea (Proanu, Balica, Blan 2013) i, ca urmare, nu recomand recurgerea la aceast procedur. Situaia este aceeai n rndul poliitilor i al autoritilor publice locale, iar o parte dintre avocai manifest nc mult reticen n sftuirea clienilor s recurg la mediere, n cazurile pretabile. n ceea ce privete opinia public i societatea civil, se simte o lips de informare i chiar de respingere cu privire la utilizarea medierii n cauze penale, mai ales dup ultimele modificri legislative care au fost interpretate n mod eronat n sensul obligrii victimelor unei infraciuni de viol s negocieze cu agresorii. Din pcate, mijloacele de informare n mas nu au contribuit la o corect informare a opiniei publice cu privire la aceste aspecte, iar titlurile de genul Violul nu e negociabil!, Victimele violului sunt sftuite s i ierte agresorul n schimbul unei compensaii, Ct mai cost un viol, domnule mediator? au condus nu numai la manifestri de strad, dar i la amnarea intrrii n vigoare a articolului de lege privind sanciunea n cazul neprezentrii prilor la o edin de informare privind avantajele medierii. Nici reacia mediatorilor prin Consiliul de mediere, ca organism autonom care promoveaz activitatea i reprezint interesele mediatorilor autorizai (art.20 din Legea nr.192/2006) i prin asociaiile profesionale care au ca scop protejarea statutului profesie nu au gsit modalitile cele mai eficiente de informare i promovare a activitii de mediere. Nu n ultimul rnd, lipsa unei susineri financiare a proiectelor de mediere n cauze penale din partea statului, conform recomandrilor europene (CEPEJ, Ghidul de implementare a medierii n materie penal, 2007), contribuie la o extrem de slab participare a victimelor i infractorilor la procesul de mediere. Concluzii n Romnia, mediatorii au obligaia legal de a realiza informarea cu privire la mediere n mod gratuit, n toate tipurile de cauze, nu numai n cele penale. Nu percep onorarii pentru aceast activitate de interes public, ci investesc resurse financiare, munc, implicare sufleteasc i emoional. Deocamdat rezultatele se las ateptate dei, n opinia mea, medierea este o profesie care merit susinut i promovat, mai ales ntr-o societate n care etichetrile, generalizrile i presupunerile sunt prezentate ca adevruri absolute de ctre cei care ar avea rolul s fie formatori de opinie.

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Medierea nu este i nu se dorete a fi o reet care vindec orice; este o abordare care poate deschide un canal de comunicare i poate fi o ans pentru cei care, din proprie voin i dup o corect informare cu privire la avantajele i dezavantajele acesteia, decid s urmeze procedura. Pregtit, condus i desfurat corect, profesionist, medierea ntre victim i infractor poate contribui la depirea traumei i gestionarea rului care a fost produs. Medierea funcioneaz i n cauzele penale, cel puin aa rezult din studiile realizate n alte ri, iar gradul de satisfacie al prilor participante, fie victime sau infractori, este catalogat de la bun la foarte bun (Deklerck, 2007). Procesul de mediere este partea central, miezul justiiei restaurative. Aici se afl ceea ce justiia restituie, gradul de libertate este lrgit, iar prile intr ntr-un proces intensiv, mprind un trecut dureros, dar ndreptndu-se spre viitor. n procesul de mediere avem de-a face cu metode de comunicare, procese psihologice complexe, sentimente i emoii, ruine, agresiune, team, suferin, confruntare, etic experimentat i exprimat, o dinamic a regulilor (auto) impuse prin contactul dintre pri, toate devenite posibile prin intermediul mediatorului. n consecin, medierea ntre victim i infractor nu este o procedur la ndemna oricrui mediator. Exist recomandri speciale cu privire la pregtirea, calitile i abilitile celor care accept astfel de cazuri. Este obligaia mediatorilor s se perfecioneze i n acest domeniu, iar posibiliti sunt, avnd n vedere experiena unora dintre colegi n proiecte interne i internaionale de utilizare a justiiei restaurative. Bibliografie Blan, A. 2011, Medierea- oportuniti i provocri n prevenirea delincvenei juvenile n Romnia, publicat n Revista Copiii de azi, prinii de mine, nr. 47/2011, Universitatea de Vest Timioara, p. 33. Clin, D., Clin, R.M., Coovanu, P.A. 2012, Culegere de hotrri judectoreti pronunate n material medierii. Note i comentarii, Editura Universitar, p. 5. Deklerck, J. (ed) 2007, Re-link-ing de-linq-uency: why the mediation process works, in Images of Restorative Justice Theory, edited by McKay, R., Bosnjak, M., Deklerck, J., Pelikan, C., Stokkom van B., Wright, M., Verlag fur Polizeiwissenschaft, Frankfurt am Main, p. 186. Marshall, T. F. 1999, Restorative Justice: an overview, Home Office, Research, Development and Statistics Directorate www.homeoffice.gov.uk. McKay, R., Bosnjak, M., Deklerck, J., Pelikan, C., Stokkom van B., Wright, M. 2007, Images of Restorative Justice Theory, Verlag fur Polizeiwissenschaft, Frankfurt am Main.

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Proanu, A., Balica, E., Blan, A. 2013 (n curs de apariie), Medierea n domeniul penal n Romnia. Evaluare i perspective, Editura C.H.Beck. Umbreit, M.S. 2001, The Handbook of Victim Offender Mediation, Jossey-Bass INC. Walgrave, I. 1998, Restorative justice for juveniles, Leuven Univeristy Press, p.75. Wright, M. 1996, Justice for Victims and Offenders: A Restorative Response to Crime; Second Edition, Waterside Press Publications Coordinator, Domum Road, Winchester, SO23 9NN, United Kingdom. Consiliul Europei, Recomandarea (19)99 privind medierea n materie penal www.coe.int. Consiliul Europei, Memorandum explicativ la Recomandarea (19)99 privind medierea n materie penal www.coe.int. Consiliul Europei, Recomandarea R(99)19 cu privire la mediere n materie penal. Comisia European pentru Eficacitatea Justiiei, CEPEJ (2007)13, Ghid pentru o mai bun implementare a recomandrii cu privire la mediere n materie penal, traducere de C.Danile www.cristidanilet.wordpress.com. European Forum for Restorative Justice, Reccommendation on the training of mediators in criminal matters. Legea nr.192/2006 privind medierea i organizarea profesiei de mediator, modificat i completat prin Legea nr.390/2009 i i OG nr. 13/2010 pentru transpunerea Directivei servicii. Legea nr. 115/2012 pentru modificarea i completarea Legii nr. 192/2006 privind medierea i organizarea profesiei de mediator, publicat n M. Of., partea I, nr. 462 din data de 9 iulie 2012. Ordonana de Urgen a Guvernului nr. 4/2013 privind modificarea Legii nr. 76/2012 pentru punerea n aplicare a Legii nr. 134/2010 privind Codul de procedur civil, precum i pentru modificarea i completarea unor acte normative conexe. Ordonana de Urgen a Guvernului nr. 90/2012 pentru modificarea i completarea Legii nr.192/2006 privind medierea i organizarea profesiei de mediator, precum i pentru modificarea art.II din Legea nr.115/2012 pentru modificarea i completarea Legii nr.192/2006 privind medierea i organizarea profesiei de mediator, publicat n M. Of., Partea I nr. 878 din 21/12/2012.

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Despre ineria aparatului juridic i eficientizarea medierii

Oana Raluca CICEU36 Masterand Master Asisten social n spaiul justiiei. Probaiune i mediere Universitatea Babes Bolyai Cluj-Napoca n articolul prezent sunt expuse aspecte i dificulti ale medierii ca proces de actualitate n Romnia. Autorul a spicuit, cu scopul de a gsi neajunsuri, din Legea numrul 192 din 2006 privind medierea i organizarea profesiei de mediator cu toate modificrile sale la zi, aadar n sfera de atenie a intrat inclusiv cea mai actual modificare, Legea numrul 115 din 2012 pentru modificarea i completarea Legii numrul 192 din 2006 privind medierea i organizarea profesiei de mediator. Introducere Despre sistemul de justiie din Romnia se poate scrie i vorbi infinit de mult. Inclusiv se poate spune c deine propria sa inerie. Chiar i cu aderarea noastr la spaiul european nu s-au rezolvat problemele sau mcar o parte important din probleme. Ici-colo mai rsare cte un animator al aciunii de resuscitare a aparatului muribund al justiiei. ns cert este c este nevoie de ceva mai mult. Avem legislaie, poate chiar prea mult, prea sufocant, legislaie care a intrat ntr-un flux permanent de schimbri, gurit de glonul puterii politice. Este un adevr evident, cu toii am vrea un sistem mult mai eficient care s fac fa att rutinei ct i provocrilor, dar fr un acord comun, fr o aezare la masa rotund, nu se ntrevede vreun viitor luminos. Stufoasa legislaie nu face dect s afunde aproape orice aciune pe care o ntreprinde un cetean romn, pentru c nimeni nu se poate prevala de necunoaterea legii (nemo censetur ignorare legem). Dar cum se poate s cunoti att de mult legislaie, s tii cum funcioneaz, ce drepturi ai sau ce obligaii, ce sanciuni, avertismente, pedepse i s-ar putea aplica etc.? Majoritatea legilor sunt n aa msur concepute astfel nct cine ar vrea s eludeze legea va gsi o porti n lacuna legii, poate acea scpare e pus acolo involuntar, dar un avocat bun o poate adulmeca. Nu se dorete blamarea unor persoane cu legtur direct sau indirect cu instituia medierii, dar se consider ca reprobabile unele comportamente adoptate de acestea, subliniindu-se indiferena lor de a aduce legislaia pe drumul potrivit strii considerat normal de o societate evoluat. n final, chiar dac avem sau nu tangene cu sistemul de drept resimim consecinele aparatului legislativ.

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Email: Ciceu.raluca@yahoo.com

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Cantitate nu nseamn calitate i de cele mai multe ori prea bine e dumanul binelui, astfel, dup aceste principii este ideal o real reform a sistemului de justiie, pentru a cura putregaiul i mucezeala sistemului. De departe gndul de inoculare a unor aciuni de mas, revolte sau alte asemenea indignri, cei care lucreaz ntr-un sistem n care materia de lucru este dreptul sau justiia tiu c trebuie tranat inflexibil sistemul n spe, cu pai mici, dar siguri, avnd la dispoziie instrumentele corespunztoare legii. n orice lege din Romnia se pot suda petece de eficientizare, asta pentru c ntotdeauna va fi loc de mai bine. Conflicte ntotdeauna se vor ivi ntre oameni, cheia este de fapt rspunsul la ntrebarea cum se rezolv aceste conflicte?. Revenim la legea talionului, pedepsim tot ce iese n cale fr urm de ans, aducem napoi nchisorile private sau facem tabula rasa integral i gsim o soluie eficient i echitabil pentru toi? O metod alternativ de rezolvare a conflictelor este medierea. Dat fiind c este o apariie relativ nou n Romnia, unii dintre ceteni i-au scos la naintare scepticismul, alii nu au nici cea mai vag idee ce nseamn medierea. Medierea ar fi, ntr-o construcie metaforic, zna bun ce scoate sistemul clasic de justiie din ghearele morii. Bineneles c nici ea nu este desvrit, dat fiind faptul c pe plan naional are caracter nou i rsar i neajunsurile. ns, cu toate acestea, medierea este ceva bun, ceva ce trebuie instaurat ct mai curnd posibil pe proprii si piloni. Consideraii generale n demersul materializrii acestei teme, autorul a decis s analizeze instituia medierii, aa cum se prezint la momentul actual n Romnia. Autorul a cercetat cu atenie legislaia relevant pentru a gsi neajunsuri i a propune prin activarea propriului sistem de idei, o eficientizare a activitii de mediere. Astfel, a disecat Legea numrul 192 din 2006 privind medierea i organizarea profesiei de mediator cu toate modificrile sale la zi, deci n sfera sa de atenie a intrat inclusiv cea mai actual modificare, Legea numrul 115 din 2012 pentru modificarea i completarea Legii numrul 192 din 2006 privind medierea i organizarea profesiei de mediator care se spune c are puterea de a mpinge medierea n sistemul de justiie. Despre eficientizarea medierii Persoana care mediaz un conflict poart denumirea de mediator, care este o ter persoan specializat. Mediator poate fi orice persoan care ndeplinete cumulativ urmtoarele condiii: are capacitate deplin de exerciiu; are studii superioare; are o vechime n munc de cel puin 3 ani sau a absolvit un program postuniversitar de nivel master n domeniu, acreditat conform legii si avizat de Consiliul de mediere; este apt, din punct de vedere medical, pentru exercitarea acestei activiti; se bucur

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de o bun reputaie i nu a fost condamnat definitiv pentru svrirea unei infraciuni intenionate, de natur s aduc atingere prestigiului profesiei; a absolvit cursurile pentru formarea mediatorilor, n condiiile legii, cu excepia absolvenilor de programe postuniversitare de nivel master n domeniu, acreditate conform legii si avizate de Consiliul de mediere; a fost autorizat ca mediator, n condiiile legii. Din prevederile legislative se poate conchide c un proaspt absolvent de curs de mediere poate media orice fel de conflict, orict de complex sau dificil ar fi acesta. Autorul consider c ar trebui s existe o clasificare, o divizare a tipurilor de conflicte care pot fi mediate de un mediator n funcie de vechimea, priceperea i experiena acumulate. Aa cum exist avocai stagiari sau magistrai stagiari, pe aceleai considerente ar trebui s existe i calibrarea profesiei de mediator n funcie de pregtire, de vechime i de experien. Totodat autorul este de prere c aceasta ar fi o problem pentru care cetenii implicai n conflicte bat n retragere cnd afl de mediere i sunt nencreztori n persoana care mediaz, chiar n pofida faptului c un mediator poate avea grad nalt de pregtire, dei vrsta nu nsumeaz neaprat un numr considerabil de ani. ntr-adevr mediatorul poate angaja juriti i personal auxiliar care s i sprijine munca de mediere i prile pot fi asistate de avocai, experi, tutori pe toat durata desfurrii medierii, ns mediatorul este piesa cea mai important. El conduce tot procesul. Mediatorul trebuie s dein vaste cunotine de la cele de comunicare pn la cele juridice, cunotine care, consider autorul, pot fi acumulate cu ajutorul adugrii experienei n timp. O alt chestiune semnalat este dualitatea pregtirii unui mediator, mai exact, un mediator mai este i inginer sau avocat sau psiholog sau are orice alt profesie, meserie sau ocupaie. Profesia de mediator nu este o specializare sau o perfecionare a altor profesii. Astfel, autorul este de prere c mediatorul nu reuete s i canalizeze atenia spre mediere, aceasta nefiind la momentul actual o meserie bnoas, evident c este constrns s mai ntreprind i altceva pe lng, un altceva care s i asigure traiul, lsnd undeva n subsidiar medierea. Este cu neputin ca o persoan s reueasc s i canalizeze atenia nspre dou lucruri astfel nct s le fac pe ambele, att corect, ct i calitativ. Cu precizarea c este una dintre cele mai noi profesii liberale din Romnia, conform ISCO 08, nregistrat n COR la poziia 243202, ncadrat n Grupa major 2 Specialiti n relaii publice37, ns dac privim n perspectiv exist anse reale ca profesia de mediator s fie asimilat aidoma altor profesii i s deschid oportuniti i reale anse de afirmare. O alt tem care prezint aspecte neclare, discutabile i care necesit o lmurire este inclus n articolul 66 din legea 192 din 2006. n legtur cu dispoziiile privind conflictele de familie se precizeaz c mediatorul trebuie ca nainte de ncheierea contractului de mediere sau, dup caz, pe parcursul procedurii, s depun toate diligenele pentru a verifica dac ntre pri exist o relaie abuziv ori violent, iar
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http://www.mmuncii.ro/nou/images/Documente/Munca/Grupa_Majora_2__ord_feb_2013.pdf accesat la 3 aprilie 2013.

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efectele unei astfel de situaii sunt de natur s influeneze medierea i va decide dac, n asemenea circumstane, soluionarea prin mediere este potrivit. Aici se ivete o ntrebare, mai exact, mediatorul i pstreaz limitele profesiei sale sau n legtur cu acest articol are dezlegare s fac i pe detectivul? Ce nseamn viaa intim, familial i privat prin prisma acestui articol din legea medierii? Pentru c articolul 26 din Constituia Romniei amintete c autoritile publice respect i ocrotesc viaa intim, familial i privat. n plus, dup cum amintete articolul 1 din legea medierii, mediatorul trebuie s fie neutru, imparial, s pstreze confidenialitatea i liberul consimmnt al prilor. Cum se poate ca un mediator s investigheze aciunile unei persoane fr acordul ei prealabil, ns fr a clca n picioare coninutul legilor amintite, dar n acelai timp s fie un bun profesionist? Aici apare un veritabil antagonism iar introducerea n realitatea subiectiv o face sintagma toate diligenele, ne ntrebm n ce termeni se traduce aceast construcie de cuvinte i pn la ce nivel mediatorul mai poate s fac i pe investigatorul ns totui pstrnd limitele imperative ale legii fundamentale? Nu se precizeaz astfel de aspecte sau detalii, iar autorul semnaleaz c articolul 66 din legea 192 din 2006 necesit lmuriri suplimentare. O alt dificultate este ridicat de obligativitatea informrii asupra medierii nainte de purcederea unui proces n faa instanei de judecat. Astfel, dac legea nu prevede altfel, prile, persoane fizice sau persoane juridice, sunt obligate s participe la edina de informare privind medierea, inclusiv dup declanarea unui proces n faa instanelor competente, n vederea soluionrii pe aceast cale a conflictelor n materie civil, de familie, n materie penal, precum i n alte materii, n condiiile prevzute de prezenta lege. Dispoziiile art. 182 alin. (1) pct. 1 lit. e) din Codul de procedur civil rmn aplicabile n mod corespunztor. n acest caz se declaneaz cteva nelmuriri. Astfel, se pare c prin Legea 115 din 2012, s-a ncercat o stimulare a activitii de mediere, ns dup cum prevede textul su, doar informarea este obligatorie, nu medierea ca atare. Mai mult dect att, singura sanciune pentru neparticiparea sau refuzul de a participa la procedura de informare este o amend ntre 50 i 700 lei (care din momentul intrrii n vigoare a noului cod de procedur civil se va augmenta) prevzut de codul de procedur civil la articolul 108 indice 1. Pentru ca sistemul s fie mai eficient ar fi imperioas medierea ca proces propriu zis, nu informarea solitar, pn la atingerea unui anumit plafon pecuniar sau a unor conflicte mici i doar n cazul n care medierea eueaz, atunci pasul doi s fie instana de judecat. ns, acest fapt este discutabil cum ar putea fi sedimentat n aparatul legislativ deoarece accesul liber la justiie este unanim recunoscut ca drept civic fundamental prin urmtoarele articole: articolul 21 alineatele 1 i 2 din Constituia Romniei38, articolul 6 punctul 1 teza nti din Convenia European a
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Art. 21 Accesul liber la justiie (1) Orice persoan se poate adresa justiiei pentru aprarea drepturilor, a libertilor i a intereselor sale legitime. (2) Nicio lege nu poate ngrdi exercitarea acestui drept.

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Drepturilor Omului39, articolul 10 din Declaraia universal a drepturilor omului40, precum i prin articolul 14 punctul 1 teza nti din Pactul internaional cu privire la drepturile civile i politice41. Cetenii sunt piesele cele mai importante, ei trebuie determinai cu adevrat s contientizeze avantajele reale ale medierii. Acetia trebuie s neleag procesul medierii i de ce e bine s apeleze la el. Prin aceast instituire a obligativitii informrii nu considerm c s-a rezolvat problema accederii medierii la statutul de instituie relevant, ns pare a fi un pas nainte-mergtor. n articolul 26 din Legea 192 din 2006 se prevede c informarea are caracter gratuit. Pentru activitatea de informare i consiliere a prilor cu privire la procedura medierii i avantajele acesteia, ndeplinit potrivit legii, anterior ncheierii contractului de mediere, mediatorul nu poate pretinde onorariu. Deci, se nelege c mediatorul, dac nu reuete s treac barierele unui contract de mediere, va face voluntariat n ceea ce privete informarea. Pentru c n lege nu se prevede dac acesta are alte avantaje financiare. Autorul ntrezrete o singur posibilitate ca mediatorul s-i asigure continuarea profesiei i s nu fie doar un nume ntr-un tabel, aceea de a-i pune n valoare abilitile de convingere care s fie edificatoare n a determina prile s rmn pentru o mediere. O alt problem n ceea ce privete informarea coroborat cu profesia de mediator este care dintre acei mediatori din lista naional va realiza procedura de informare, pentru c din punct de vedere legal trebuie ndeplinit egalitatea de anse. Considerm c alegerea ar trebui fcut printr-un sistem aleatoriu aidoma aplicaiei informatizate ECRIS. Medierea, dup cum spune Legea 192 din 2006, este o activitate de interes public. i Codul de etic i deontologie profesional a mediatorilor noteaz ca obiectiv aprarea interesului public. Urmnd direcia legii este greu de neles de ce este o activitate de interes public i din ce motiv este astfel catalogat. Litera legii nu este un joc de cuvinte haotice, este imperios s se poat explica i nelege ce a vrut legiuitorul s reglementeze. Din punctul de vedere al autorului medierea este o activitatea cvasipublic. De mediere beneficiaz att persoanele fizice, persoanele juridice care au conflicte i care doresc s le sting pe cale amiabil ct i organele de urmrire
Art. 6 Dreptul la un proces echitabil Punctul 1. Orice persoan are dreptul la judecarea cauzei sale n mod echitabil, n mod public i n termen rezonabil, de ctre o instan independent i imparial, instituit de lege, care va hotr fie asupra nclcrii drepturilor i obligaiilor sale cu caracter civil, fie asupra temeiniciei oricrei acuzaii n materie penal ndreptate mpotriva sa. 40 Art. 10 Orice persoana are dreptul n deplina egalitate de a fi audiat n mod echitabil i public de ctre un tribunal independent i imparial care va hotr fie asupra drepturilor i obligaiilor sale, fie asupra temeiniciei oricrei acuzri n materie penal ndreptat mpotriva sa. 41 Art. 14 Punctul 1. Toi oamenii sunt egali n faa tribunalelor i curilor de justiie. Orice persoan are dreptul ca litigiul n care se afl s fie examinat n mod echitabil i public de ctre un tribunal competent, independent i imparial, stabilit prin lege, care s decid fie asupra temeiniciei oricrei nvinuiri penale ndreptate mpotriva ei, fie asupra contestaiilor privind drepturile i obligaiile sale cu caracter civil.
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penal, poliie, jandarmerie, procuratur, justiia i arbitrajul. Medierea va ajunge o activitate de interes public doar n momentul n care se va postula o colaborare de netgduit ntre organele i instituiile statului din spectrul justiiei i mediatori pentru ca ntr-adevr dreptatea i justiia s paveze mpreun drumul calitii rezolvrii conflictelor. Faptul c mediatorii au un birou n cldirile instanelor de judecat i asta strict pentru a realiza activitatea de informare, nu nseamn c s-a bifat nsuirea de interes public. Autorul evideniaz ca problem de importan covritoare cazul n care prile se prezint i se informeaz, una nelege avantajele medierii i dorete s ia drumul acesteia, ns cealalt vrea un proces clasic n faa instanelor de judecat. n aceast situaie care ar fi soluia corect? Bineneles c este garantat liberul acces la justiie i se va ajunge n instan, dar nu pare a fi soluia echitabil, nici eficient. Orice fel de justiie ar fi aleas, clasic sau restaurativ, tot o parte s-ar declara nemulumit. Deci, tot oamenii, cunoscnd avantajele metodei alternative de rezolvare a disputelor, trebuie convini c sunt cea mai important pies din funcionarea motorului medierii. Legea precizeaz c nici dup nceperea procesului de mediere, nu se zvorte calea justiiei, oricnd o parte n mod unilateral sau ambele pri care au apelat la mediator, dac ajung la concluzia c nu pot aplana conflictul n acest mod elegant, atunci pot recurge la calea justiiei clasice. Concluzii i recomandri Sinteza problemelor sesizate: 1. Un mediator poate media orice fel de conflict. Un mediator nu este doar att, ci, fiind constrns din motive financiare, mai are i alt profesie pe lng cea de mediator. 2. Exist instituit legal doar obligaia de informare nainte de nceperea procesului n cadrul instanei de judecat. 3. Mediatorul informeaz n mod gratuit fr vreo obligativitate a nceperii medierii. 4. n cadrul articolului 66 din legea 192 din 2012 mediatorul face i pe investigatorul. 5. Legea precizeaz c medierea este o activitate de interes public. 6. Dac o parte dorete medierea, ns nu i cealalt, atunci n mod intransigent se ajunge pe calea justiiei clasice. Autorul conchide c medierea este ntr-adevr o soluie i o mn de ajutor dat sistemului legislativ. Dintre toate persoanele care ar putea depune diligenele necesare, cel mai bine conturate ar fi magistraii care ar trebui s se gndeasc la acest fapt, pentru c ei se vor ngropa n sutele, poate chiar miile de dosare de multe ori slabe din punct de vedere calitativ. Le va fi imposibil s le soluioneze integral n

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cel mai corect i drept mod posibil. Pe principiul mai bine s previi dect s repari, ar fi ideal s se predea despre instituia medierii ca materie obligatorie n coli, chiar la nivel de liceu, n cadrul INPPA avocaii s fie pregtii pentru a activa n sfera lor medierea, dar cel mai important n cadrul Institutului Naional de Magistratur s se pun accent pe mediere, magistraii sunt o pies notabil n tot acest proces. ntr-adevr, sistemul medierii trebuie perfectat, ns partea bun este c exist propuneri de lege ferenda, asta nseamn c exist atenie ca medierea s fie vzut cu ali ochi, chiar mai mult, s fie neleas. Este important cunoaterea funcionrii medierii pentru a fi acceptat deoarece caracterul nostru uman ne determin s respingem un lucru n special atunci cnd nu l nelegem. Problemele semnalate i filtrate prin sistemul de raiune al autorului, ulterior aduse n cmpul problematic i deficitar sunt doar cteva dintre cele proeminente ntr-o singur lege care din 2006 pn n prezent a suferit diverse modificri. Exist convingerea c sunt mult mai multe chestiuni discutabile care necesit lmuriri, poate chiar cu dedesubturi care nu sunt sesizate dect atunci cnd se lucreaz direct cu sistemul. Prin informare veridic plusat de un caracter proactiv i motivant al oamenilor acest reviriment al justiiei, medierea, va ajunge o terapie i nu o morg. Medierea nu se erijeaz n bunul samaritean i nu este un simulacru n ncercarea de a resuscita sistemul de justiie. Medierea mocnete i este o mn de ajutor dat sistemului clasic de justiie pentru a nu intra n colaps, pentru c n viitor dac nu se schimb ceva, chiar asta se va ntmpla. La ntrebarea de ce aceast instituie nc nu i consolideaz pilonii? autorul lanseaz felurite variante de rspuns, de la cupiditatea unora care activeaz n sfera juridic, pn la simpla indiferen a cetenilor care fiind neinformai sau chiar mai ru, dezinformai i iau n spate crucea justiiei i o car dup ei poate chiar ani de zile. Un numr considerabil de ceteni nu au nici cea mai mic idee despre ce nseamn medierea, ce nseamn s vrei s faci pace sau s ntrerupi alimentarea unui conflict. Pe de alt parte exist binefctori i promotori ai medierii, chiar din spectrul justiiei cotidiene, acetia cred n instaurarea sa corect i concret ns poate din lips de resurse (materiale, pecuniare, temporale), poate din cauza unor varii-interese conturneaz s i aduc aportul n a face prioritar medierea prnd totul un fenomen anevoios. Cu certitudine nici Ministerul Justiiei, nici Ministerul Public nu absorb parte substanial din buget pentru a acoperi mai apoi costurile unei mai bune publiciti i unei veritabile promovri a medierii. Am putea fi temerari, n special c avem la dispoziie istoria altor ri n ceea ce privete medierea, noi am putea nfuleca direct pregtit instituia medierii. Prerile sunt mprite despre calea alternativ de soluionare a conflictelor, ns cert este c actualmente sistemul de justiie trebuie reanimat.

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Bibliografie Codul de etic i deontologie profesional a mediatorilor http://medierea.ro/wp/wpcontent/uploads/2010/02/Cod-de-etica-si-deontologie-profesionala-a-mediatorilor.pdf (data accesrii 14 ianuarie 2013) Codul de procedur civil i 12 legi uzuale, ediia a 14-a actualizat 1 noiembrie 2010, Editura Hamangiu, Bucureti. Constituia Romniei i 2 legi uzuale, ediie actualizat la 10 mai 2006, Editura Hamangiu, Bucureti. Convenia European a Drepturilor Omului http://www.echr.coe.int/NR/rdonlyres/E7126929-2E4A-43FB-91A3B2B4F4D66BEC/0/Convention_RON.pdf (data accesrii 14 ianuarie 2013)

Declaraia universal a drepturilor omului http://www.onuinfo.ro/documente_fundamentale/declaratia_drepturilor_omului/ (data accesrii 14 ianuarie 2013) Ministerul Muncii, Familiei i Proteciei Sociale www.mmuncii.ro (data accesrii 3 aprilie 2013) Legea nr.115 din 4 iulie 2012 pentru modificarea i completarea Legii nr. 192/2006 privind medierea i organizarea profesiei de mediator publicat n Monitorul Oficial nr. 462/9 iulie 2012 http://www.cdep.ro/pls/legis/legis_pck.htp_act?ida=111793&frame=0 Legea nr.192 din 16 mai 2006 privind medierea i organizarea profesiei de mediator publicat n Monitorul Oficial nr. 441/22 mai 2006 http://www.cdep.ro/pls/legis/legis_pck.htp_act?ida=64672&frame=0 Legea nr.370 din 26 noiembrie 2009 pentru modificarea i completarea Legii nr. 192/2006 privind medierea i organizarea profesiei de mediator publicat n Monitorul Oficial nr. 831/3 decembrie 2009 http://www.cdep.ro/pls/legis/legis_pck.htp_act?ida=93092&frame=0 Pactul internaional cu privire la drepturile civile i politice http://www.hotararicedo.ro/files/files/PACTUL%20INTERNATIONAL%20CU%20 PRIVIRE%20LA%20DREPTURILE%20CIVILE%20SI%20POLITICE.pdf (data accesrii 14 ianuarie 2013)

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