Victim-offender mediation in Sweden and South Africa

Abstract: The purpose of this thesis is to investigate victim-offender mediation in Sweden and South Africa and then compare the two systems. Victim-offender mediation is a conflict resolution method. The victim and offender take part in a meeting with an impartial third party acting as mediator. The aim of the meeting is for both parties to express their thoughts and feelings towards the offence. The mediator’s role is to help the parties communicate with one another. Victim-offender mediation is based on the philosophy of restorative justice. ‘Making right’ is central in the restorative approach and a restorative system wants to involve the concerned parties in the justice process, rather than hand over the justice process to people who represent the judicial system, such as attorneys, lawyers and judges. Victim-offender mediation can be used at various stages in the justice process, both as a complementary and an alternative to the regular criminal justice system. Victim-offender mediation started to develop in Sweden at the end of the 1980s but the first regulation, The Mediation Act (Medlingslagen 2002:445), only came into effect in 2002. The victim-offender mediation service is a part of the municipalities’ social welfare activities. The municipalities are responsible for ensuring that victim-offender mediation are available when a crime has been committed by someone under the age of 21. It is up to each service to decide if a case is suitable for victim-offender mediation or not. There has been a strong opposition towards using victim-offender mediation in serious offences in Sweden, but this attitude has begun to change, it is now believed that victim-offender mediation can be suitable in all types of offences. The fact that a young offender is willing to take part in mediation is a special reason for wavering prosecution and can therefore have an influence on a prosecutor’s decision when he or she considers a waiver of prosecution against the offender or not. The fact that victim-offender mediation has taken place may also influence a court’s decision on the choice of sanction and the type of punishment. Victim-offender mediation does play a complementary role in the regular justice system in Sweden, which means that it does not constitute a penal sanction, or an alternative to the regular justice system. Victim-offender mediation started to develop in South Africa in the early 1990s but as a concept it was not foreign, the African traditional justice systems were generally acknowledged to contain elements of restorative justice even before the 90’s. The first regulation to mention victim-offender mediation, The Child Justice Bill, passed by the parliament in the end of June 2008. The Bill will only come into effect in April 2010 but departments, other State structures and NGOs have already implemented key aspects of the Bill in their work. Service providers are the local Department of Social Development and NGOs. Victim-offender mediation can take place at various stages of the justice system; as diversion options prior to trial or in the middle of a trial or after conviction. Victim-offender mediation in South Africa is therefore used as an alternative, a complement and a sentence. The decision whether or not victim-offender mediation is appropriate is made by the prosecutor or the magistrate. Some cases are seen as more suitable than others but the seriousness of the crime does not automatically excluded a case. Instead the nature of the offence only influences the decision as to how it would be best applied, at pre-trial, pre-sentence or sentence stage, rather than excluding the use of victim-offender mediation altogether. The main purpose of this thesis was to see how the victim-offender mediation services in both Sweden and South Africa can develop. My conclusion is that South Africa should develop a regulation that states how the service shall proceed and also try to ensure that the service is nationwide. In Sweden on the other hand, I believe that we should take the step to develop victim-offender mediation as a more permanent feature in the criminal justice system.