Usually clients facing criminal charge must make a decision as to whether they will elect to plead guilty or not guilty to the charge. In some cases however, clients may be able to “mediate” or “divert” that charge so that it can be dealt with outside of the Court system. This may mean that they can avoid any Court imposed penalties.
One such option to “mediate” or “divert” a criminal charge is through Justice Mediation.
What is Justice Mediation
Justice mediation is a meeting between a person who has been harmed in an incident (the Complainant) and the person responsible for it (the Defendant). It’s voluntary, confidential and free.
The process provides an opportunity for Complainants (victims) and Defendants to be involved in deciding how to respond when a crime has been committed. The Complainant can discuss how they were affected by the Defendant’s actions and the Defendant can try to repair the harm they caused. Friends or relatives may also attend for support.
Mediators guide discussion about the offence and how the Defendant might make amends. Making amends means being responsible for actions. It might involve:-
- returning stolen property;
- agreeing to do something for the complainant, such as paying money or repairing damage;
- making an apology.
A Defendant’s assurance that the offence will not be repeated can help repair emotional harm. Some Defendants agree to attend counselling or enroll in special courses. The options that Justice Mediation could incorporate are more wide ranging then the sentencing options of a Court.
How Justice Mediation Works
The Court, police or prosecutor can refer people to justice mediation. Complainants, Defence solicitors and Barristers can also suggest justice mediation. Regardless of who makes the recommendation, both the Complainant and the Defendant must agree to take part. Participation is always voluntary. Justice mediation is usually used for offences heard before a Magistrates Court, such as stealing, assault, wilful damage and unlawful use of a motor vehicle. It might also be used for more serious offences, depending on the situation. Justice mediation usually occurs before a court hearing or sentencing but can happen at any time provided the complaint has been lodged with the police. Before the day of the mediation, the justice mediation staff interview the Complainant, the Defendant and their support people to prepare them for the mediation session.
At the Mediation
Guided by the mediator, both parties talk through what happened and how they feel. They discuss why and how the incident happened, its effect and how the defendant might make amends. Justice mediation usually takes about 2 hours and is held at the local courthouse or Dispute Resolution Centre. An interpreter can attend if necessary. Once the parties reach an agreement, the mediator helps both parties write it down.
After an agreement is reached
After the mediation, the referrer (usually the prosecutor) is informed that the justice mediation has occurred. With both parties’ consent, a copy of the agreement to the referrer so they can see if and how the parties have finalised the matter. The referrer then decides whether the court process should continue. The whole process takes around 8 weeks.
What if the Justice Mediation doesn’t work out?
If no agreement is reached, the offender doesn’t comply with the terms of the agreement or they don’t turn up, then the police or the court will decide what to do. Usually this will result in the matter returning before the Court. If convicted the Defendant will usually then received a Court imposed penalty.
When Justice Mediation is not available
There are a number of reasons why a matter may be ineligible or unsuitable for justice mediation. These include (but are not limited to):-
- The relationship between the parties makes the matter inappropriate for justice mediation (e.g. parent against child; domestic violence present);
- The Defendant having extensive criminal history, a history of similar offences, or the offence referred to mediation occurred whilst the Defendant was on some form of behaviour order;
- Either party do not wish to mediate;
- The Defendant has utilised justice mediation program for a previous offence;
- The Defendant does not take responsibility for their actions;
- The Complainant seeks an outcome more onerous than a court would order;
- The Complainant seeks retribution or punishment;
- A party is not able to be contacted after reasonable attempts;
- The age of Complainant or Defendant, or lack of available support people;
Macrossan & Amiet has been able to assist clients successfully resolve criminal charges through Justice Mediation.
If you would like more information on Justice Mediation or would like to know whether it could be used in a matter concerning you, please contact Steven Hayles or Brigid Paterson.
