Justicia restaurativa y mediación penal intrajudicial en Aragón: condiciones, resistencias e incertidumbres

What this is about

This article presents the results of a socio-legal study carried out in 2019 on intra-judicial criminal mediation in the Autonomous Community of Aragón, Spain, in collaboration with the Asociación ¿Hablamos? The authors set out to understand what idea of mediation is held by legal practitioners and mediators, why resistance to integrating it into the criminal justice system persists, and what elements make it possible to consider a mediation successful. To do so, they use a qualitative methodology based on two focus groups: one with judges, prosecutors, and court clerks (letrados de la Administración de Justicia), and another with mediators. The analysis distinguishes technical-legal, cultural, and political conditions that hold back the development of mediation. It is addressed to those who design public policy, to judicial teams, and to those promoting mediation programs within courts.

Annotated table of contents

• 1. Introduction. Places restorative justice and mediation in the international, European, and Spanish regulatory framework, and reviews the history of intra-judicial criminal mediation in Aragón since 2006. Presents data on 277 case files between 2007 and 2019, the objectives of the study, and the design of the two focus groups.
• 2. What are we talking about when we talk about mediation? Distinguishes mediation from negotiation and links it to restorative justice as a tool in its service. Analyzes the relationship between process and outcome, warns against fixating on the agreement, and discusses mediation's complementary relationship to the State's punitive function.
• 3. Criminal mediation as something problematic: conditions, resistance, and uncertainties. Sorts the difficulties into three types: technical-legal, cultural, and political. Examines procedural guarantees, such as the presumption of innocence and judicial impartiality, the fear of privatizing the criminal conflict, the offenses that are referred, the punitive culture of society, and dependence on the goodwill of certain individuals.
• 4. Integrating restorative justice into the criminal process. Addresses the tensions between the timing of mediation and that of the proceedings, the most suitable procedural moment, and the legal routes for fitting it in, such as plea agreement (conformidad), the mitigating circumstance of reparation of harm, pardon, and suspension of sentence. It also discusses the advantages and risks of protocolizing referral and the information given to the parties.
• 5. Proposals to improve the credibility of intra-judicial criminal mediation. Proposes professionalizing mediation and separates that question from the opposition between volunteer and paid work. Reviews what is understood by a successful mediation under different restorative models and describes the reservations among lawyers and mediators.
• 6. Conclusions. Contrasts an approach centered on emotion and dialogue, more common among mediators, with a procedural one, more present among legal practitioners. Returns to the debate on what to protocolize, how to define a good facilitator, and the relationship between retributive and restorative justice.
• References. Gathers the bibliography cited on mediation, restorative justice, and criminal procedure.
• Normative references. Lists the European, Spanish, and Aragonese rules mentioned in the study.

Key ideas

• Those who take part in intra-judicial criminal mediation understand it as a tool in the service of restorative justice, not as a mechanism to relieve court congestion.
• The value of mediation is not exhausted by the agreement: opening a dialogue can pacify the relationship between the parties and change the climate of the trial even if no agreement is signed.
• The reservations of judges and prosecutors are directed not at mediation itself but at protecting guarantees such as the presumption of innocence, impartiality, and legal certainty.
• According to the available data, the type of offense does not seem to determine the outcome; other variables weigh more, such as the prior relationship between the parties.
• Without a clear and sustained public policy, access to mediation depends on which court one happens to get and on the willingness of those who work there.
• It is advisable to standardize case referral and the information given to the parties, but not the mediation process itself, which needs flexibility.
• Professionalization requires multidisciplinary training, sufficient resources, and institutional recognition, regardless of whether the work is paid or voluntary.
• Measuring success only by the number of agreements can lead to forcing them and distorting the restorative meaning of mediation.

Practical uses

• What professional and institutional obstacles should be anticipated when promoting a mediation program within courts?
• What routes does Spanish criminal and procedural law offer for giving effect to a mediation agreement?
• How can a mediation program be evaluated without reducing it to the number of agreements reached?
• What training and attitude are expected of a mediator in the criminal field?
• How can lawyers be brought on board so that they do not perceive mediation as a threat to their work?

Key terms

restorative justice, intra-judicial criminal mediation, legal practitioners, focus groups, presumption of innocence, judicial impartiality, legal certainty, plea agreement (conformidad), mitigating circumstance of reparation of harm, protocolization, case referral, professionalization, public policy, Aragón