After a delegation of members of the Turkish Parliament visited Marquette Law School last month, I had the privilege of traveling to Istanbul to moderate a victim/offender mediation conference for two hundred fifty Turkish prosecutors and judges. There were fourteen of us restorative justice “experts” from ten different countries who were there for three days to talk to the ballroom full of lawyers, who wanted to learn how to best implement Turkey’s already enacted victim/offender mediation process during criminal prosecutions. It was a fabulous experience.
The United Nations’ Development Programs for Judicial Reform organized and oversaw the planning of the conference. Because the panel members came from many countries (Albania, Austria, Belgium, Brazil, Canada, Italy, Scotland, Spain, Turkey, and the United States), we had simultaneous translations of the conference into several languages. The Turkish audience was lively and eager to participate in the dialogue. Over the first two days we spent much of our time taking questions from the floor and answering them from the perspectives of different cultures, judicial systems and philosophies. The Turkish prosecutors and judges, like prosecutors and judges around the world, are working to improve the delivery of justice despite their significant caseloads. They hope that by using restorative processes that they can provide a more just system while reducing the number of cases that must go to trial.
I have a number of observations about the conference. First, we heard how most of the successful victim/offender mediation programs around the world basically follow the same principles and protocols with only small variations. The mediator/facilitator must be someone who is trained, sensitive and neutral. The parties must be adequately prepared for the dialogue before it occurs. The process needs to be kept as independent from the formal legal process as possible (neutral facilitator, confidentiality, agreement not to use information gained in the process as evidence in a criminal prosecution, etc.) The mediations should be conducted in a safe neutral environment. Mediators must go through specific training. Most programs include mediators who do not have law degrees, although some countries do require college degrees. In many countries, all victims and offenders in the less serious criminal offenses are offered the opportunity to mediate. A Brazilian judge, who was part of the panel, talked about his involvement in the ongoing substantial alternative dispute resolution judicial training occurring across Brazil. Judges are being trained to understand that dispute resolution is one of the many tools available to them to help parties achieve resolution of conflict and harm. Our panel members were uniformly impressed by the large engaged audience and the excellent questions we received from members of the Turkish justice system. Hopefully we were helpful with our answers.
The panelists believed that the Turkish law as it is currently written has some implementation problems. First it requires that all the mediators either be a prosecutor or a lawyer. Many of the panelists talked about why it is important to have “non-lawyers” involved as well. Almost everyone advised that prosecutors should not serve as mediators because they are not neutral to the dispute or the parties. The law requires that the police offer the opportunity of a victim/offender mediation to the parties shortly after the crime is reported. At this point, Turkish police have no training in victim/offender dialogue and would be unable to answer questions about the process. The parties only have three days to decide whether to mediate and if they do not agree, it is deemed to be a “no.” That is simply not enough time for a victim or offender to decide whether to have a facilitated conversation with each other. As a result of this, there have been very few referrals.
Another problem is that the law requires that the mediation must occur within 30 days. Most of the panelists agreed that using a 90 to 120 day window is much more realistic. If there is no mediation early on in the criminal process, the law dictates that the parties are not to be offered a second chance to mediate. We, again, saw that as a problem because some people need more time to come to that decision. Some prosecutors identified a significant challenge for their use of restorative justice because very few people in Turkey, including key stakeholders, understand (not to mention even know about) victim/offender mediation. So we all agreed that there will have to be much education, building of community support, training of mediators, and experimentation before these processes are truly integrated into the Turkish criminal process. Despite those challenges, we all applauded Turkey for taking these first steps to become better informed to do this work.
Like most things in life, I learned much more at the conference than I taught. I enjoyed being with colleagues from different countries, including Turkey, and learning from them. I was honored to be part of this dialogue. I look forward to my continuing involvement with this project, not only to help Turkey integrate restorative justice into their system, but to help us learn from a country that is taking on a big initiative to make its system more just and victim-friendly.