Mediation in criminal and civil cases

Mediation in Criminal and Civil Cases in Finland

2.10.2014 Copyright: Communications and awareness working group on mediation in criminal and civil cases 1

Theory of mediation

• Restorative justice.

• Peaceful, humane and dialogic communal approach to justice where particular attention is paid to feelings and interpersonal relationships.

• Focuses on future-oriented problem-solving.

• Sanctions should primarily be aimed at making restitution to the victim, restoring the offender and the victim to full membership in society, and strengthening the values of communities and society.


Theory of mediation

• On a broader perspective, restorative justice refers to all procedures that compensate for criminal damage, alleviate interpersonal conflicts, increase the parties' satisfaction with justice outcomes, or improve their position.

• Fundamental values include activity of the parties involved, compensating for material and mental damage, giving offenders the opportunity to take responsibility for their actions and seeking creative ways to solve problems.


Statutory service Act on Conciliation in Criminal and Certain Civil Cases (1015/2005)

• The suspected offender and the victim in a criminal case, or the parties in a civil case, are given the opportunity to process the incidence in the presence of mediators.

• Mediation is an alternative to the criminal legal proceedings; it does not supplement the proceedings.

• An impartial and confidential service, where mediators have the obligation to observe secrecy.

• Voluntary and free-of-charge.

• Available at mediation offices throughout Finland.

• Mediators are trained volunteers that work under the guidance and supervision of the professional staff at the mediation office.

• Mediation does not deal with issues of guilt.


Mediation management, guidance and monitoring

• The Ministry of Social Affairs and Health manages, guides and monitors mediation services.

• The tasks of the Advisory Board on Conciliation in Criminal Matters include guidance, monitoring and policy-making regarding the national and international mediation-related activities and development efforts.


Mediation management, guidance and monitoring

• The regional state administrative agencies are responsible for organising mediation services in their area. They also give the mediation offices guidance and counselling and monitor the offices' services. The regional state administrative agencies organise the specialist training in mediation. They also allocate to the mediation offices the state reimbursement for mediation services and supervise the use of the funds.

• The National Institute for Health and Welfare (THL) is responsible for the co-ordination, statistics and monitoring of the research and development of mediation in criminal and civil cases.


Administrative organisation of mediation services

Ministry of Social Affairs and Health

• Advisory Board on Mediation in Criminal and Civil cases

Regional State

Administrative

Agency for

Western and

Inland Finland

Regional State

Administrative

Agency for

Southwestern

Finland

Regional State

Administrative

Agency for

Eastern

Finland

Regional State

Administrative

Agency for

Northern

Finland

Regional State

Administrative

Agency for

Lapland

Provincial

government in

Åland

Regional State

Administrative

Agency for

Southern

Finland

National

Institute for

Health and

Welfare

Regional state administrative agencies and the provincial government in Åland

Medation service providers

2.10.2014 Copyright: Rikos- ja riita-asioiden sovittelun viestintä- ja vaikuttamistyöryhmä 7

Mediation goals

• The parties involved take active part in the mediation process and have the opportunity to influence the decisions concerning their case.

• The parties receive assistance in finding mutually satisfactory solutions as well as the means to compensate for damages with reference to their needs and goals.

• The suspected offenders take responsibility for their actions.

• The victims are compensated or reimbursed for damages.


Mediation is available

• At mediation offices (more than 30) throughout Finland.

• Services are provided municipalities and other public- or private-sector service providers.

• More information about mediation services are available at the mediation offices and the regional state administrative offices www.avi.fi.

• Contact details for all the mediation office are available on THL's mediation website at www.thl.fi/mediation


http://www.avi.fi/

http://www.thl.fi/mediation

Mediation can be initiated by

• A party involved in a criminal or civil case

• A custodian or a legal representative.

• The police, prosecutor or other authority.

• Only the police or the prosecutor can initiate mediation in cases involving a violent offence against the spouse, child, parent or other person close to the suspected offender.

• The referral to mediation can be submitted to the nearest mediation office.


Most common criminal and civil cases in mediation

• Property offences

• Criminal damage

• Assault offences

• Offences associated with disturbance of domestic peace

• Defamation offences

• Disputes of minor economic importance


Conditions for mediation

• Prior to mediation, the clients must be provided sufficient information about mediation, its significance, their rights and their position.

• The parties must be able to understand what mediation and its outcomes will mean for them.

• The parties must give personal and voluntary consent to mediation.

• The parties can withdraw their consent at any stage.

• Also persons aged under 18 years must give their personal consent. Consent is also required of the minor's custodian or other legal representative.


Conditions for mediation

• Mediation is not allowed in cases involving a crime committed against a minor if the victim needs particular protection either due to the nature of the crime or due to his or her age.

• An adult without legal capacity can take part in mediation if s/he understands the significance of mediation and gives his/her personal consent to mediation.

• Mediation is possible in civil cases where at least one party is a natural person and where the subject of the dispute and the claims made are of relatively minor economic importance.


Mediation is prepared by

professional staff at the mediation office

Settlement and

agreement

Refe

rral to mediation

conditions for mediation are not met

Mediation referral

by: - party involved

-custodian or legal

representavie -police

-prosecutor -other authority

Agreement monitoring

Mediation Crime victim and crime suspect(s)

mediators

No settlement or agreement

Refe

rring police or prose

cutor is inform

ed of progre

ss and

outcome of m

ediation

Agreement duplicate given

to the police or the public

prosecutor, where necessary

Mediation process in criminal cases

©Kalevi Juntunen


Mediation in criminal cases

• On receiving a referral to mediation, the mediation office first acquires, on consent of the parties, the relevant documents. It then ensures that the conditions laid down in law are met and that the case is suitable for mediation. Finally, it draws up an appealable decision in writing and sends it to the parties involved.

• The party referring the case to mediation is informed if the conditions for mediation are not met.

• If the decision is in favour of mediation, the professional staff at the mediation office selects the mediators for the case.

• The mediators get in touch with the parties and prepare individual and joint meetings. They are also responsible for the mediation process.


Mediation in criminal cases

• Mediation can be attended by custodians, legal representatives, personal assistants, support persons and interpreters.

• The mediation process can be concluded by a settlement and an agreement, or it can be discontinued.

• A discontinued mediation process means also that no settlements or agreements will be reached.

• If a settlement and an agreement are reached, a monitoring period may be assigned on the agreement. Agreement duplicate is given to the police or the public prosecutor, where necessary.

• The authority referring the case to mediation is informed of the mediation outcome. It then decides how to proceed in the police

investigation or the legal proceedings.


Mediation is prepared by professional staff

at the mediation office

Settlement and

agreement

Refe

rral to mediation

conditions for mediation are not met

Mediation referral

by: - party involved -custodian or

legal representavie

-police -prosecutor

-other authority

Agreement monitoring

Mediation Crime victim and crime suspect(s)

mediators

No settlement or agreement

Refe

rring police or prose

cutor is inform

ed of progre

ss and

outcome of m

ediation

Mediation in civil cases

©Kalevi Juntunen


Mediation in civil cases

• On receiving a referral to mediation, the mediation office first ensures that the conditions laid down in law are met and that the case is suitable for mediation. It then draws up an appealable decision in writing and sends it to the parties involved.

• If the decision is in favour of mediation, the professional staff at the mediation office selects the mediators for the case.

• The mediators get in touch with the parties and prepare individual and joint meetings. They are also responsible for the mediation process.

• Mediation can be attended by custodians, legal representatives, personal assistants, support persons and interpreters.

• The mediation can be concluded by an agreement, or it can be discontinued.

• A monitoring period may be assigned on agreements.


Role of mediation in the criminal process

• The purpose of mediation is not to determine the guilt of the suspected offender or the criminal sanctions.

• If the complainant in a complainant offence waives his/her claim, the case is usually concluded and does not proceed to legal proceedings.

• If the prosecutor decides to waive charges, the prosecutor does not proceed with the case.

• If the prosecutor decides to press charges, the case proceeds to a court of law, which then decides on the criminal sanctions.


Role of mediation in the criminal process

• Mediation can have various effects on the criminal procedure, including suspension of pre-trial investigation, waiving of charges, waiving or mitigating of sentence, reduction of the penal scale, or changing of the sentence type.

• A case involving an offence under public prosecution proceeds first to the prosecutor, who considers the charges and can either press or waive charges. A mediation agreement does not always lead to waiving of charges or to a more lenient sentence.

• If a complainant waives charges, it is not possible to renew them.

• The mediation office monitors compliance with the agreement, where necessary.


Mediation Crime victims and crime suspect(s)

ao-rikosasiassa* prosessi päättyy, jos ei

rangaistusvaatimusta

Prosecutor

Court of law

WOC* -process concluded

-mediation office monitors and confirms an agreement,

if necessary

- penalty

- no penalty - confirmation of agreement

(appealable)

Settlement and agreement in criminal case

Consideration of charges if an OUP*

No agreement

CO= complainant offence

OUP=offence under public prosecution

WOC= waiving of charges

Role of mediation in the legal process

©Kalevi Juntunen


18.6.2013 Mediation in Criminal and Civil Cases 2012 /Statistical Report 15/2013 22

Mediation in Criminal and Civil Cases 2013 • A total of 11 586 criminal and civil cases were referred to mediation in 2013.

• The number of criminal and civil cases referred to mediation decreased by 6 per cent on 2012.

• Violent crimes accounted for half of all criminal and civil cases referred to mediation. .

• Domestic violence cases accounted for 16 per cent of all criminal and civil cases referred to mediation.

• Forty-one per cent of suspected offenders were aged under 21. Thirteen per cent of suspected offenders were aged under 15.

• The combined value of monetary compensations recorded in the agreements reached as a result of mediation amounted to EUR 1.7 million in 2013. The monetary value of work compensations was EUR 102 000.

www.thl.fi/statistics/mediationincriminalcases Statistical report 17/2014

http://www.thl.fi/fi/tilastot/rikossovittelu


Criminal and civil cases referred to mediation 2007–2013

Source: THL, Mediation in Criminal and Civil Cases – Statistical Report

0

2 000

4 000

6 000

8 000

10 000

12 000

14 000

2007 2008 2009 2010 2011 2012 2013

Criminal cases referred to mediation Civil cases referred to mediation


Criminal and civil cases referred to mediation in 2012 and 2013, %


35

16

15

12

6

5

4

4

3

36

17

14

12

6

5

3

3

3

0 10 20 30 40 50

Violent crimes ***)

Domestic violence **)

Criminal damage

Property crime *)

Menace

Other

Defamation

Civil cases

Invasion of domesticpremises

%

2012 (N=12 116)

2013 (N=11 788)

*) Property crimes include theft, fraud, embezzlement and unauthorised use.

**) Only homicide and bodily injury offences can be recorded as domestic violence cases in the mediation statistics. For example,

defamation offences committed in close relationships are not included in the statistics.

***) Violent crimes include petty assault, assault, aggravated assault, and robbery. Violent crimes committed in close relationships are

presented separately in the Figure under domestic violence.


Domestic violence cases as a percentage of all civil and criminal cases referred to mediation, by regional state administrative agency, 2012 and 2013, %


17,2

11,0

14,1

18,3

18,9

16,9

17,3

16,8

10,2

10,6

11,4

15,5

18,6

19,3

19,7

16,4

0 5 10 15 20 25

State Department of Åland

Eastern Finland

Southwestern Finland

Northern Finland

Southern Finland

Lapland

Western and Central Finland

Whole country

%

2013

2012

Benefits of mediation

• Mediation gives the opportunity to describe and discuss experiences, feelings and claims relating to a criminal or civil case.

• It facilitates interaction between people.

• It gives the parties the opportunity to be heard, which facilitates recovery.

• It gives the suspected offender the opportunity to take responsibility for his/her actions.

• It gives the victim the opportunity to get compensation and reimbursement for damages.

• It gives the victim the opportunity to recover the sense of security that s/he may have lost.

• It alleviates harm caused by a crime or a civil case.

• It provides the parties information about support services.


Benefits of mediation

• Mediation gives the parties the opportunity to have an impact on their own case, the settlements in the case and the further progress of the case.

• It speeds up the criminal or civil proceedings.

• It reinforces human dignity, self-esteem, well-being, and respect for others.

• It reinforces communal and social values.

• It reduces recidivism.

• It eases the burden on the legal system.

• It enables improvements to the legal system.

• It promotes respect for law and order and for the principle of law.


Mediation is not applicable

• If it is discovered that the consent to mediation was not voluntary.

• If one party puts pressure on the other party during mediation or in relating to an agreement.

• If the suspected offender does not admit to guilt of all the essential elements

• If one party is afraid of the other party and does not dare to express his/her point of view in the joint meetings.

• If the parties do not have sufficient personal resources to meet with the other party.

• If mediation is not in the best interests of a minor.

• If the case involves complex legal issues.

• If the case is a dispute where the damages are not of low economic value.


• Act on Conciliation in Criminal and Certain Civil Cases (1015/2005)

• www.stm.fi

• www.avi.fi

• www.thl.fi/mediation


http://www.stm.fi/

http://www.avi.fi/

http://www.thl.fi/mediation

These slides were drawn up by the Communications and awareness working group on mediation in criminal

and civil cases

• Tuula Abdo, Special Social Worker, Helsinki Mediation Office

• Aune Flinck, Development Manager, THL

• Jaana Koivukangas, Director of Development, Victim Support Finland

• Kalevi Juntunen, Senior Officer, Regional State Administrative Office for Western and Inland Finland

• Riku Laurila, Leading Mediation Advisor, Proper Finland’s Mediation Office

• Airi Lindvall, Mediation Advisor-in-Charge, Mediation office of kanta-Häme

• Kaarina Wilskman, Development Manager, THL


Health & Medicine

Mediation in criminal and civil cases