The search for new alternatives in criminal proceedings followed to juvenile offenders (also called restorative justice or third way) is based on three pillars:
a) the responsibility of the wrongdoer, who must assume the consequences of his actions;
b) the reparation of the victim, which does not necessarily imply financial compensation for the damage caused, but reconstruction of the ties inevitably broken;
c) the reintegration of the teenager to the society of belonging, avoiding his/her stigmatization.
Mediation offers a propitious field to address these issues, encouraging participation, dialogue, the assumption of conflict and the joint construction of a compliant solution.
It provides an alternative way that respects the rights of the young human person, the victim and gives the community what is needed: peace.
The principle of specialty in juvenile criminal justice.
The Convention on the Rights of the Child obliges signatory States to provide differential treatment to children alleged as, accused of, or recognized as having infringed criminal law.
Article 40.3.b. clearly says: “Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected” [should be followed].
This specialty derives from the doctrine of comprehensive protection (which considers the child fully as subject of rights), and it is based on the need to face a special situation: the particular parties and the educational purpose of the whole Juvenile Criminal Law.
It is necessary for the adolescent to perceive that he/she is not the victim of a random act, that he/she belongs to a certain society in a certain historical time, that has its rules of coexistence, and therefore the answer that he/she receives is not arbitrary.
The procedure, the authorities and the institutions represent "the Law," and it should be ensured that the prosecuted adolescent can incorporate the rule, first as a sanction, then for himself/herself, and ultimately for the others.
This special process is an educational opportunity, and all the authorities involved have the duty to explain the meaning of the procedural activities and decisions.
It is a priority for the young person to take responsibility for the consequences of his/her actions: to accept them and to effectively respond for their negative effects.
Additionally, the victim must be taken into account in the process and the whole society must be involved in solving this type of conflict.
Mediation as an alternative in criminal conflicts
“Mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute” (Preamble – Model Standards of Conduct for Mediators, 9/2005)
There is a great horizontality in the relationship between the parties and the mediator, who does not provide solutions, but helps to identify interests and explore possible agreements.
When a particular case may be mediated, the parties involved must be considered first, and then the actual facts. It should be clarified that when mediation has been used in violent crimes, it does not replace the sanction or reduce the penalty.
From a procedural standpoint, there are several issues to be considered:
• The adolescent must assume some degree of responsibility in the act imputed at some level. Without some kind of admission, he/she is an accused but not a party in mediation. Some authors think that the fact of having been convicted would have already fulfilled this requirement However, we believe that a personal commitment is essential, since the individual must be aware of the real impact of his/her behavior. Some degree of repentance is needed. That does not evince in any way the implication in the procedural situation, since there should be no documented manifestations of the parties made in the sessions, neither private nor joint, because of one of the guiding principles of this method: confidentiality, which allows the parties and the operator to work without having to measure the consequences of their sayings.
• The offender must show intention to repair the damage caused. The offender himself must correct his mistake.
• The victim must consent to participate in mediation. In this type of process, the victim (including the community) takes an active role. The decision to continue or not with the prosecution should not rely on the victim, nor depend on his/her will, desire, need, or convenience, because in some cases this could even lead to extortion.
• If agreement is reached, it must be measured by the responsibilities assumed, the needs fulfilled and the emotional health obtained. It should not impute conducts nor make qualifications.
The view from practice: a real case we called “Taking the cap off”
The present narrative serves to visualize the above expressed, and also to rethink strategies, interventions and process design, as well as to open the door to new questions.
Facts: A 17-year-old teenager broke into a store during the night, through a window. The owners were sleeping upstairs when they heard noises and woke up. The owner and his son closed the door to the apartment and called 911. They entered the shop and immobilized the young boy, then the police arrived and took the boy away.
The case was received, ordering the intervention of a mediator.
It was decided to hold previous private sessions, and then set up a joint session.
It was not known if there was any relationship between the parties, although their addresses belonged to the same neighborhood.
Individual session with the victim: Only the store owner was present and we explained him that the Juvenile Judge had requested mediation. We told him that this was a meeting, not an audience; that if he considered it necessary he could have the counsel of a private lawyer, or a public attorney could be called to advise him. We also told him that the session was voluntary and confidential. He said that when he had received the letter inviting him to mediation, he had consulted an attorney, who had advised him to attend. The victim asked about the process. It was clarified that the process was not for taking responsibility away from anyone, but rather to allow each person to assume the consequences of their own acts in a constructive way.
He signed the confidentiality agreement, and told us what he remembered of the facts: first his emotion of fear, then the recognition of the situation of vulnerability in which the young aggressor could have been. He was offered the possibility of having a joint session to clarify issues referring mediation, and he accepted immediately. Then he was asked about his expectations of that joint meeting (exploring his interests).
His exact words were: “…I would like him to explain to me what he wanted to do. He took some candies from our property that are worthless, but he broke a glass door and kicked another one, if he has to pay for that ... The feelings of fear were the worst ... (he made a great silence) In these cases no one knows what to do, because it is not always the best choice to involve the police or the judicial system. I agree to find another solution…”
Session with the boy and his mother: The young boy and his parents were invited the following day. His mother came alone. We explained the intention to have a voluntary and confidential meeting with her and her son. She was asked to talk about her son. She told us that he had left school and could not get a job, that she told him his friends were not good.
But since this had happened, he understood that he had to do something with his life. He was afraid of the police and the court. The boy's older brother, who had been living with them for a few months then, was helping him, too. The boy’s father had gone several years before and she was responsible for taking care of their five children. After listening to her the first time, we invited her to a new meeting with her son.
In this opportunity the boy came with his mother and his older brother. It was important for us to involve the three people in the session, because of the dynamic of that family group. We also asked if they had already spoken to the Juvenile Defender. The boy nodded and his mother told us that they had been with him before.
After explaining the characteristics of the process, we asked the adolescent about the facts. He immediately assumed his responsibility. He did not remember exactly which store he had broken into.
He said he was frightened, that it was not his intention to hurt anyone. He was asked how he believed this problem could be solved and he said he had no idea, he offered to pay for the candies he had stolen, even though the police had taken them from him, and also offered to pay for all he had broken. The brother interrupted saying that they were going to help him pay for everything. They agreed to come to a joint session.
Joint session: Those who had participated in private session, without lawyers, were
introduced. The boy was wearing a cap that covered part of his face, looking down.
The victim began to tell what he remembered that day.
When the man started talking, the boy looked at him, took his cap off and immediately interrupted: “…But you are the blue store owner.... I did not remember where I had gone into…that shop… I thought it was the one that is on the corner .... but you kept on selling me things after that event. Why have you done that if I did this to you?
These words were "magical": there was an immediate recognition of the facts, but also of the "other person" and his feelings. After that, the dialogue was fluid and without aggression.
Sometimes it is necessary to hold previous private sessions, so as to know what attitude each party would take in relation to the facts: rejection, fear, desire of revenge and even lack of assumption the responsibilities. But the joint meeting was “the” key, which gave the parties the possibility to listen to each other.
A good criminal justice system for young people should contemplate a wide range of options within and outside the criminal process itself. This avoids the serious deterioration and stigmatization of the adolescent, who must be properly informed about these alternatives without pressure, assuming obligations proportionate to the attributed facts, that can be fulfilled.
· ARECHAGA, Patricia, BRANDONI, Florencia y FINKELSTEIN, Andrea, Acerca de la clínica de mediación. Relato de Casos, Ed. Librería Histórica, Buenos Aires, 2004.
· ALCONADA Julio Resolución de conflictos y mediación penal, Revista del Colegio de Abogados de La Plata, año XLV Nro. 66 pág. 67.
· ALVAREZ Gladys y HIGHTON Elena Diferencias entre conciliación y mediación, publicado en LL, 1996-E-1091.
· CAIVANO Roque, GOBBI Marcelo y PADILLA Roberto, Negociación y mediación. Instrumentos apropiados para la abogacía moderna, Ed. Ad-Hoc, 1997, pág. 48.
· AGUIRRE, Santiago Marino, Mediación penal (para que la última ratio sea en verdad la última), JA 2005-III, Fascículo 2 pag. 5,
· DEL VAL, Teresa, Mediación en Materia Penal, (Buenos Aires, 2006) Ed. Ad-Hoc, pág. 50.
· EIRAS NORDENSTAHL, Ulf Christian, Mediación penal: de la práctica a la teoría (Buenos Aires, 1ra. Edición), Ed Librería Histórica, 2005.
· GIANELLA Carolina “Supuestos en los procesos de negociación y diálogo” Seminario Iberoamericano de Intercambio de Experiencias en Políticas y Gobierno, leído en la página de “Mediadores en Red”.
· HIGHTON Elena, ALVAREZ Gladys y GREGORIO Carlos, Resolución Alternativa de Disputas y Sistema Penal (Buenos Aires, 1998) El Ad. Hoc.
· VII Jornadas Nacionales de Mediación, Organizadas por el Colegio Público de Abogados de la Capital Federan en Homenaje al Dra. Carlos Alberti publicado el 9/21/005 (elDial – DC6F7), una de las conclusiones del panel de mediación penal: “5. Ningún delito debería ser excluido de la mediación. No hay delitos mediables, son las personas las que permiten la mediación”.
· PALOMBA Federico, El nuevo proceso penal del menor, (Buenos Aires, 2004) Ed. Eudeba.
· PERRONE Reynaldo, Interacción del individuo y la ley, en Revistas Sistemas Familiares, Nro. 3, año 1989.
· Unicef, Universidad Nacional de 3 de Febrero y Secretaría Nacional de Niñez, Adolescencia y Familia del Ministerio de Desarrollo Social, Adolescentes en el sistema penal: situación actual y propuesta para un proceso de transformación (Buenos Aires Septiembre 2008), Primera Edición, de. Unicef.
 Note: When one party of the mediation is an adolescent, we try to make the first contact with the party identified as a victim, because we need to know if she / he agrees on this procedure before involving the young person. Otherwise, it could happen that once we offer this possibility to the teenager, the rejection of the other party could increase the already existing conflict, or at least foster negative feelings.
 Note: In these types of meetings, it has been more useful to ask the party who is identified as a "victim" to begin telling his or her story. In this special relationship there is one party that has been affected by the illegitimate conduct of the other, which could also be described as a "crime". There is an "apparent" imbalance. In addition, the victims have more difficulties to carry out this meeting, since they feel "disadvantaged" by the other party and by the system. Thus, they express feelings of anger, fear, even hate. We use this as a strategy to position them positively in front of the other.