In the shadow of penal law
| Author | Stefanie Tränkle |
| DOI | 10.1177/1462474507080475 |
| Published date | 01 October 2007 |
| Date | 01 October 2007 |
| Subject Matter | Articles |
In the shadow of penal
law
Victim–offender mediation in Germany and
France
STEFANIE TRÄNKLE
Freiburg, Germany
Abstract
This article aims to demonstrate that German and French Victim–Offender Mediation
schemes (VOM), in contrary to mainstream opinion, do not seem to work but face
enormous problems, which prevent the procedure from putting into practice its
intended aims. In her qualitative study on VOM, the author evaluated the interaction
process between participants and mediators from a micro-sociological point of view.
Based on that evaluation, it is suggested that VOM is not able to put into practice its
specific modus operandi within the framework of a penal procedure.
Key Words
interaction analysis • penal law • Restorative Justice • Victim–Offender Mediation
INTRODUCTION
This article deals with Victim-Offender Mediation (VOM) in Germany and France,
which is a form of Restorative Justice (RJ).1The conventional viewpoint perceives VOM
as a successful procedure which is promising for the future and which should be
developed further. In both countries, the criminological literature is predominantly
positive, highlighting the benefits for the participants. In contrast to this viewpoint, I
will argue that there might appear to be problems which contradict the aims and
working principles of the procedure as well as the legal rights of the participants, even
if an agreement has been reached. These problems become visible if one takes into
account the interaction process from a micro-sociological point of view. This article will
report the results of a qualitative study which evaluated the interaction process between
participants and mediators and which is based on German and French case studies. The
following hypothesis will be set out: VOM is not able to put into practice its specific
modus operandi in the framework of a penal procedure. I will argue that this is due
not only to individual, social and professional impediments but mainly to its structural
395
PUNISHMENT
& SOCIETY
Copyright © SAGE Publications
Los Angel es, L ondon,
New Delhi and Singapore.
www.sagepublications.com
1462-4745; Vol 9(4): 395–415
DOI: 10.1177/1462474507080475
link to the penal law. The informal and pedagogical logic of mediation is constrained
by the penal framework, namely its power to impose its formal and bureaucratic logic
on the mediation process. The penal law dominates the procedure and impedes the
interaction process.
The methodological design of the study will be described in section 2 and a short
overview of the legal and organizational framework of VOM in Germany and France
will be given in section 3. After that, some of the problems that can occur during the
interaction will be explored (section 4). The article is going to finish by outlining some
of the reasons that are responsible for these problems (section 5).
THE STUDY: INTERACTION AND CONTEXT ANALYSIS FROM
MEDIATION SESSIONS
The study is based on case studies from two German and two French mediation boards.
Based on the hypothesis that the institutions face similar problems depending on their
organizational proximity to the prosecution authorities, not their nationality, they were
selected according to their type of organization. In both countries, there are mediation
boards, which are located within the prosecution authorities (public agencies such as
the Court Aid in Germany and the Houses of Justice2in France) and others that are
outside the penal system (private non-profit organizations).
As can be seen in Table 1, findings are based on 23 case studies (involving 43
preparatory and mediation sessions) from 2 German and 2 French mediation boards
(2 prosecution-based and 2 based in private sector agencies), as well as interviews of
PUNISHMENT & SOCIETY 9(4)
396
TABLE 1 Dat a collection
CASES NUMBER OF INTERVIEWS WITH
SESSIONS PER CASE MEDIATOR(S)
Germany Prosecution-based
mediation board
(Court Aid) 1 2 4
Non-profit
organization in the
social aid sector 11 20 1
France Prosecution-based
mediation board
(House of Justice) 5 7 1
Non-profit
organization in the
social aid sector
(‘association’) 6 12 5
Altogether 23 41 11
Analysed in detail 6 21 6
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