Spanish penal mediation and the post Covid-19 context

The judicial standstill caused by the health crisis of Covid-19 will put the Spanish Justice Administration on the verge of collapse. As an effective reaction is needed, this crisis could work as a boost for mediation within criminal justice.

Almost twenty years after the creation of the first Restorative Justice projects in Spain, mediation within criminal justice has been definitively implemented in the Spanish criminal justice system. Nowadays we can state that mediation within criminal justice is a reality in this country. All these years — starting with the first pilot projects around 1997 and later on with the landmark of recognition and establishment around 2015 — have been characterised by the constant demonstration of the validity and of the practical results based on a Restorative Justice model. A proof of this success are the numbers that the General Council of the Judiciary in Spain publishes, with around 460 mediation programmes that have been incorporated within the action protocols of different judicial organs of the criminal justice system. These numbers in such a short period of time were really unexpected.

With the crisis originated by the Covid-19 pandemic and the obligatory standstill of all judicial activity in Spain, it seems that there is a new commitment to ‘alternative ways of conflict solving.’ Mediation in Spain is the new resource for relieving the judicial congestion and we must say that this is the decisive boost we needed for its definitive consolidation. With this challenge, many sceptical voices could wonder about the viability of this new commitment, and such mistrust is reasonably logical. Nonetheless, and beyond the theoretical arguments, the best answer to such sceptical voices is to present the actual situation of mediation within criminal justice in Spain and the effectiveness of the programmes.

Regarding the impact of mediation within criminal justice programmes in Spain, we can mention the project of the Madrid Professional Association of Psychology with the central office of the 54 Examining Magistrates’ Courts. The introduction of psychology into mediation within criminal justice should not be a surprise. The concepts of crisis, conflict, reparation or victim are common within psychology. When managing the different legal and emotional factors occurring in any mediation process, psychology gives an added value, especially in the field of mediation within criminal justice.

The mere fact of suggesting the concepts of victim and perpetrator makes reference to — in an implicit way — the representative form of conflict. Establishing a dialogue, managing the emotions, engaging in communication and anticipating how each party will be positioned in front of ‘the other’ and the conflict itself are factors integral to every type of conflict. This is why we cannot be surprised when seeing the amazing symbiosis between mediation and psychology.

Going back to the numbers, since the launch of the mediation within criminal justice programme in the Madrid Examining Magistrate’s Court (1st of June 2017), around 300 cases of petty offences (threats, injuries, misappropriation, fraud …) have been resolved. If we focus on the quantitative results, the percentage of agreements achieved among all cases is about 90%. This outcome has even more value if we keep in mind the special idiosyncrasy of the procedure, the essence of the ‘conflict’ which is implicit when talking about any criminal case, and the context of the ‘victim’ and the ‘perpetrator.’ Furthermore, other outcomes are worth mentioning, like the reduced time needed to resolve every case in the mediation programme — which has nothing to do with the slowness of the ordinary procedures — and the satisfaction levels received when participants are evaluating the programme (satisfaction surveys gave 9 out of 10 points to the mediation programme); but above all, it should be pointed out the small recidivism rate that gives a global value to the whole process.

The outcomes we are showing here come from the experience of the mediation within criminal justice programme that is at present being carried out by the Madrid Professional Association of Psychology. Nonetheless, they coincide with the published reports about other mediation within criminal justice programmes in Spain and Europe. It is not a coincidence that in the places where these programmes have been launched — and so where there is a fluent and usual referral — the percentage of the agreements and the satisfaction levels are around 90%. The fact that 9 out of 10 cases end up in an agreement should be interpreted not only as a confirmation of the validity of the procedure but also of society’s needs for other alternatives to legal conflict resolution.

The proved validity and effectiveness of the mediation within criminal justice programmes — specifically for those we have experienced and have shown here as an example — are not new to the Ministry of Justice and the General Council of the Judiciary and this is why we should not be surprised by their new commitment to mediation within criminal justice. The incorporation of mediation into the legal system has been proved beneficial for everybody, starting with the legal system itself with the reduction of the costs, bureaucratic paperwork and time dedicated to each procedure, as well as for the people involved in the case. The victim is placed at the centre of attention and sees his/her interests legitimated; the right of reparation and avoiding re-victimisation during the process are emphasised. The offender goes through a learning process towards a full sense of responsibility and the attention given to the reason behind his/her behaviour reduces the recidivism rate.

Now that the health crisis due to Covid-19 has forced the Spanish Judicial system to confront such a major challenge, we do not have to be surprised if mediation within criminal justice gains increased recognition. The time when this was put thorough examination has passed. Nowadays we have no doubts about the effectiveness and the need for such a procedure, although, as with all methods, a period of trial was required. We hope this period will end soon with the consolidation and integration of the Restorative Justice model in the procedural Spanish culture. Probably the huge crisis that the Spanish Judicial system is facing will add even more value to the different and recently developed Spanish mediation within criminal justice programmes. The efforts made by the different professional groupings and the Justice Administration for more than two decades might now be rewarded.

About the author: Juan José de Lanuza Torres is a Chartered psychologist and Mediator at the Mediation in Criminal Justice Programme Madrid Professional Association of Psychology. He is also an Accredited Expert in Mediation in Criminal Justice and in Restorative Justice. He can be emailed here: copmadrid@cop.es

Translated by Júlia Barjau Dachs, Administrative Officer at the EFRJ.