Mediation as a Form of Restorative Justice

Abstract

The relevance of the proposed study is due to the existing problems of the institution of conciliation in the criminal proceedings of the Russian Federation. At the same time, no detailed legal regulation of the conciliation mechanism in the CPC of the Russian Federation significantly reduces the effectiveness of law enforcement through using alternatives to criminal prosecution. As a result, there is a need to find new effective ways to resolve criminal law disputes allowing for the full restoration of the rights of victims of crime. One of these methods is mediation procedure, which contributes to resolving criminal law conflicts in an extremely constructive and mutually beneficial way for both sides of the dispute with the help of an independent third party (mediator). This procedure is reflected in the concept of restorative justice. The purpose of the study is to determine the theoretical background of the institution of conciliation in criminal proceedings on the basis of a historical, legal and comparative analysis of its procedures, as well as to identify the issues related to law enforcement. In this regard, the proposed paper examines a well-established mechanism for the settlement of criminal law conflicts in western legal systems. This mechanism provides for a special subject of conciliation – a mediator possessing professionalism, independence and impartiality. The paper substantiates the reason of introducing the institution of mediation into domestic criminal proceedings, proposes its functional and legal model providing for a range of crimes with possible conciliation, the stages of its implementation, as well as requirements for mediators as candidates. The paper extensively uses comparative legal method helping to determine the prerequisites for introducing the institute of mediation in the Russian criminal procedure legislation as an independent form of resolution of criminal law conflicts. The Authors come to the following conclusions: It is advisable to update the provision of Article 25 of the Code of Criminal Procedure of the Russian Federation and codify the concept of mediation as “a way to resolve a criminal conflict used with the voluntary consent of the victim and the offender with the help of an impartial third party” and the conditions for its application. It is necessary to legislate a new impartial and independent party in criminal proceedings – a mediator who will act as a third party in the mediation, exclusively on a professional basis. Moreover, the Federal Law “On Alternative Dispute Settlement with the Help of Mediator (Mediation)” dated July 27, 2010 No. 193-FZ needs to be edited in terms of extending mediation to criminal law relations, which will allow conflicting parties to resort to this procedure. In particular, amendments to this law should concern the requirements of a professional mediator, including those involved in criminal proceedings.

Keywords

• mediation institute
• mediator
• conflict resolution
• restorative justice
• conciliation of the parties