Prospects and challenges for restorative justice with refugees using extended victim-offender mediation

In the following article, I would like to give you a short personal account of the use of mediation in criminal justice with refugees. From 2013 to 2018, I was a mediator in Schleswig-Holstein for extended victim-offender mediation with adolescents (14–18 years) and young adults (up to 21 years of age). In this context, I worked on a number of cases of refugees as perpetrators as well as as victims — sometimes both perpetrator and victim were refugees.

• First, I will make clear the distinction between ordinary and  extended victim-offender mediation.

• Then follows a case from my practice that sticks in my memory,  because it illustrates both the strengths and also the difficulties in work with refugees.

• Lastly, I would like to run through the challenges and prospects which my understanding of extended victim-offender mediation as a criminal justice measure for refugees can offer.

Extended victim-offender mediation is a type of extrajudicial conflict resolution using the assistance of an appointed mediator within criminal proceedings under the Youth Courts Law with adolescent or young adult offenders up to the age of 21.

Extended victim-offender mediation differs from classical victim-offender mediation in that, in addition to the perpetrator and the victim on both sides, supporters can also be involved in the mediation. Those can be family members, friends, neighbours and other persons whom the parties trust along with professionals, like family support workers, probation officers, court staff or the police (for example, where there are specific safety concerns). The decision on who else and how many people to involve in the victim-offender mediation lies with the participants jointly with the mediator in the pre-mediation meetings. This enables them to have support in equal proportions.

A goal of extended victim-offender mediation is to involve the community (in the shape of the supporting parties) more strongly in the processes leading to the criminal conflict resolution. A reason for this is the idea that a criminal act brings not only personal consequences and harm for those directly involved, but also harm in the immediate and wider environment of those involved. So both participation in extended victim-offender mediation as well as bringing in supporters always remains voluntary. An advantage as much on the part of victims as on the part of perpetrators is that they need not come to the meeting on their own and throughout the whole process they experience support from people at their side. This consolidates the relationships of those involved with their environment and further develops the participation of the community/society. In addition, supporters can contribute to the finding of solutions and support the young people in complying with the agreement from the extended victim-offender mediation. The agreements can be varied and creative (e.g. financial compensation, personal gifts or community service).

After successful conclusion of an extended victim-offender mediation, the criminal proceedings can be abandoned or a reduced punishment can be obtained (see §§10, 45 & 47 German Youth Courts Law (JGG); §45a German Criminal Code (StGB)). An extended victim-offender mediation can always be deemed successful if one of the accused seriously and actively tries hard for a settlement and best of all an agreement with the victim is achieved which is satisfying for all the participants.1 

Two refugees from Afghanistan (one of them a young adult), who each belong to different tribes and therefore speak different languages, get into a fight at a hostel. The origin of the fight is a rather loud phone conversation, incidentally, a common reason for disagreement if a lot of people have to live together in a confined space. From an initial verbal altercation follows a physical one with injuries on both sides. A third resident calls the police.

Both parties share their side of the story and against both are charges of assault laid (§223 StGB) and against one of the participants a charge of aggravated assault (§224 StGB) since the cause of the injuries to one of the parties is suspected to be the use of a knife.

After referral by the prosecution to the mediation organisation and telephone contact with the parties, both decline taking part in extended victim-offender mediation because they have already talked through it at a chance meeting. Also they have already thereby reached agreement and settled the conflict. By the standards of conventional, extrajudicial mediation (without any connection with criminal proceedings), there would have been no necessity for further work on the case as the parties saw no need for further clarification.

But after being informed that ongoing legal proceedings are pending2 and that extended victim-offender mediation is to be understood as an alternative and support (not as a replacement) for the legal proceedings, both parties now want, after information and an explanation of extended victim-offender mediation, to take part in meeting together in order to work on it to be able, if possible, to bring the continuing proceedings to a speedy end (abandonment) or at least to achieve a reduced punishment.

To this end they both want separate one-to-one conversations with the mediator and to outline the facts of the case from their point of view. Not only does the language barrier hide difficulties in communication, but both parties outline the events quite differently. To achieve a conclusive discussion and clarification both now agree to a joint mediation meeting. It will be a further appointment with a volunteer supporter from the hostel and arranged in consultation with a professional interpreter.

With the help and in the company of the volunteer helper, who knows both parties and takes them in her car, they arrive at the agreed appointment. The interpreter is also present to overcome the language barriers. Both the accused maintain again that they have definitely agreed and tell their stories but as before very differently and without any real understanding.

The interpreter is legally sworn and therefore obliged to translate neutrally, something which however cannot be assessed on the part of the mediator. In the course of time it becomes a problem for the extended victim-offender mediation because one party supposes that the other is in an alliance with the interpreter. In addition, neither what the mediator says nor what the other party says is translated in a neutral way. Shortly before the escalation and breakdown of the discussion, thanks to the mediator the situation can be resolved as she openly stresses the centrality of the accusations, clarifies the values and goals of mediation for the interpreter and explains her role to her. It is most important that the work of the interpreter is consistent with the idea of facilitating respectful communication between the parties, whose assessments and decisions are at the centre of the process.

In further discussion, it becomes clear that the criminal proceedings, along with the conflict together with the injuries, is trivial for both. With the help of the mediator the shared experiences of both can be brought out, e.g. the flight from Afghanistan to Germany and their similar situation here. For both it is important to be able to save face. So pride and respect play a fundamental role in dealing with one another. An apology is for one of the parties to the conflict absolutely necessary. This at last is also achieved. After the apology, one of the accused talks about the suicide of his brother that had happened shortly before (confirmed by the volunteer helper). He starts to cry and it becomes clear that he is emotionally fragile. All parties react with sympathy and understanding. The feeling of being understood and accepted seems to help him and, after this outburst of emotions, he seems relaxed.

It is still impossible to decide whether during the altercation actually a knife was used or, because of his emotionally delicate situation, the injuries had been self-inflicted. After this exchange, in spite of their differences, an agreement was found and confirmed in writing how both want their life together in the hostel definitely to be organised in future. The volunteer supporter works with them at finding a solution and supports both participants equally. Finally, they make clear that they are happy about the participation in and the outcome of the extended victim-offender mediation.

My impression is that the offer of extended victim-offender mediation to work through the conflict in consultation with supporters in a joint and extrajudicial round of talks would be taken up willingly by refugees as in the case set out above. Because sometimes a strong (family) bond seems to exist among refugees whereby also friends and neighbours are commonly looked on as members of the family and are included in quarrels, supporters could often be brought along happily.

It seems to me that the suggestion that people might want to of resolve conflict in a joint dialogue together with family and friends — and not through a judicial process — is more obvious and familiar in many cultures than in German culture. In many cases there had already been attempts undertaken in advance (of mediation through a mediation organisation) to set up a discussion and achieve clarification. Sometimes people had already reached settlements on their own and struck compensation agreements.

Since in mediation in particular the focus is on the background to an offence in terms of both the origin of the conflict and the experiences, emotions and needs associated with it, joint communication in, at best, a common language or similar linguistic circumstances is important. An interpreter can neither translate the exact words nor the intended meaning directly. For this reason it can quickly come to misunderstandings. In addition, the reality that the mediator is not part of the exchange that an interpreter conveys in the discussion, indeed leads, and that the rhythm of the meeting is interrupted means that the parties cannot really speak with each other successfully. Here in my opinion lie the biggest challenges for mediation with refugees, which should not however exclude the process at the outset.

Besides this, a cultural understanding and interest, specifically, curiosity about the prevailing cultural institutions, can help the mediator and give the parties give a feeling of being taken seriously and make the mediation significant and meaningful for the parties.

In Germany, victim-offender mediation should be considered as well as worked towards at every stage in the process (§155a StPO) and it should be accessible to everyone without discrimination. For this, the necessary capabilities need to be extended on the one hand and on the other mediators need to work in reflective and resource sensitive ways and need to be able above all to adjust flexibly to the people with whom they are working. In this way, ordinary and extended victim-offender mediation as means of restorative justice can offer the opportunity to refugees of experiencing an alternative form from a straightforward judicial criminal process with consequences (which for refugees with an uncertain right to stay can be considerable). Through mediation conflicts can be worked through more sustainably and mediation can also be an effective and socially preventive measure.

About the author: Angela Nöthe  is has a degree as Social Pedagogue (B.A.) and  Mediator (M.M.), and works as a Mediator in Penal Matters
email: a.noethe@me.com

Footnotes: 

1.Editor’s note: All of this might seem self-evident for those of you who come from countries using conferencing models. In Germany, however, ordinary victim-offender mediation is by far the most common way to implement the ideas of Restorative Justice. In fact, in the German discussion, ordinary victim-offender mediation and Restorative Justice are oftentimes thought of as congruent which brings the danger of curtailing the breadth and diversity of Restorative Justice. Therefore, the extended version is special and important in the German context.

2. Legal proceedings as part of public law, which follow a public criminal prosecution, involving extended victim-offender mediation with the participation of supporters, (in the public interest) should be completed.