Viktor Bérces: Evidence in Criminal Proceedings
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Chapter X. The possibilities of excluding evidence and the conditions for indictment at the prosecution (intermediate) stage
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10.3. General characteristics of the mediation process (mediation)
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10.3.3. The role of the mediator

10.3.3. The role of the mediator

Jegyzet elhelyezéséhez, kérjük, lépj be.!

It is the mediator’s duty to contribute to the mediation process in an impartial and conscientious manner, in accordance with professional standards. In doing so, he or she must respect the dignity of the participants in the proceedings and ensure that the participants act respectfully towards each other. The mediator shall have the right and the duty to obtain all information necessary for the performance of his or her task, for this purpose

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • have access to the file of the proceedings, with the exceptions provided for by law,
  • may ask the suspect and the victim for information,
  • ask the prosecutor’s office for more documents and information.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

As a general rule, an intermediary is bound by a duty of confidentiality with regard to all facts, data and circumstances of which he or she has become aware in the context of his or her activities as an intermediary. The obligation of confidentiality shall survive the termination of the mediation activity.1

Jegyzet elhelyezéséhez, kérjük, lépj be.!

As for the person of the mediator, he or she must obviously be a qualified professional specialised in conducting the mediation process.2 The use of a lay mediator may entail the risk that the mediator himself will acquire the attitudes of the victim. Such a person should therefore always prepare conceptually in advance for the meeting with the offender, including thinking through the course of the proceedings, or the scenario.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The mediator’s role should not be limited to seeking mitigation or full compensation. These persons must therefore have not only legal and economic knowledge, but also a minimum level of psychological training. The mediator’s presence, gestures and effective communication are essential in order to facilitate dialogue between the parties, to ensure that there is no confusion, to remove inhibitions and to promote a meaningful dialogue, preferably free of heated emotions. It is therefore wrong to regard the mediator as a “substitute judge”, since, by virtue of the purpose of the proceedings, he cannot, by definition, use the operational means which the court is entitled to use under the Be. in the exercise of its powers of maintaining order.3

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The mediator must remain impartial throughout the whole process. In this respect, I do not agree with the author’s position that the mediator has the interests of the offender at heart.4 Although the mediation process is typically conducted by a probation officer who, by virtue of his or her function, may have certain’offender-centred biases, I believe that these will disappear over time with frequent use of the construct and with the correct mastery of its function.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

As far as the community aspects of mediation are concerned, it may be necessary to involve both family members and outside (lay) elements in the process.5 The presence of family members has a reinforcing effect, while the involvement of strangers expresses the secondary aim of the process, which is ultimately to restore social order. The inclusion of strangers in the victim-offender agreement also reflects an otherwise existing community need which, in my view, is increasingly seeking to carve out a place for itself in the justice process. Society’s often unfounded prejudice against the perpetrators of crime can be reduced by creating such channels of communication.
1 Public Finance Act, § 3 (2)–(6) para.
2 There are no minimum standards for the training of criminal mediators in Europe, and the duration of training varies considerably from country to country. In: I. Aertsen, R. Mackay, C. Pelikan, J. Willemsens, and M. Wright: Rebuilding community connections – mediation and restorative justice in Europe. Council of Europe, 2004, 55–57.
3 See order, fine, expulsion, eviction
4 According to the author, “the role of the mediator is linked to the offender, and even helps and supports him or her to integrate,and hopefully prevent re-offending. Its role is also related to that of the victim in that it supports reparation, apology, etc. by the perpetrator, but this does not make it neutral. Tünde A. Barabás: Mediáció – új szerepek és feladatok az eljárásban. [Mediation – new roles and responsibilities in the process.] Ügyészek Lapja, 2005/3. 20.
5 See the US jury system, but – in this case – without decision-making powers.
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