ADR in Criminal Proceedings - Part 1/2

Alternative dispute resolution in criminal proceedings: Part 1/2

by: Veronika Válová

ADR mechanisms are successfully used among different fields regarding disputes. The most common issues, where parties seek dispute settlements out of the court in form of arbitration, mediation, or participation in negotiations are commercial transactions. Nevertheless, such mechanisms are used in cases of family law, sport, art, environmental issues, or digital matters as well. Civil law proceedings, where the main outcome is agreement on rules between two parties or compensation for the victim is common practice. However, what about criminal cases? Can ADR serve within criminal jurisprudence? What are the challenges and when is ADR used in criminal law regarding different countries in the world?

Understanding of the notion of ADR is a dispute between two individuals, two institutions or individual and institution. This creates difficulty of use of ADR, because in criminal justice the dispute is not between victim and offender, but it is a matter concerning the offender and the state. The question arises in terms of goals regarding criminal proceedings, which differ from goals of ADR. In alternative dispute resolution interests of both parties are considered. On the other hand, criminal proceedings take into consideration public policy, security, punishment, deterrence, and rehabilitation of the accused.[1]

Criminal law has a history of using ADR processes and practices. Negotiations are used in domestic violence intervention or hostage negotiations. Another mechanism of ADR is mediation, it is used in criminal law for a plea bargain, where prosecution and defence negotiate and make an agreement regarding the final sentence. There are many programmes within criminal law, which carry out characteristics of ADR such as community mediation programme for minor criminal offences or victim offender mediation programme and many more.[2]

Victim-Offender Mediation is widely used in Germany. Community based programs, which are mostly state financed operate from two-thirds within the juvenile justice and one-third with adult offenders. Most of the cases are referred through the prosecutor’s office but some cases are as well self-initiated.[3]

The vast majority of criminal cases in the US are settled by plea bargain. The legal basis for negotiations between prosecution and defence was established through case law Brady v. the United States, 1970. This case discussed the right to a fair trial regarding disclosure of exculpatory evidence in the government's possession to the defence, today known as the Brady rule. Legal remedies can be awarded if plea bargains are broken according to Santobello v. New York. The prosecutor recommended the maximum sentence, even though the plea argument stated no recommendation of a sentence will be given, therefore, breach of agreement.[4]

In countries such as England and Wales and Victoria, Australia, plea bargain is allowed only if both parties agree that the defendant will plead to some of the charges. In some cases, plea bargaining is criticized as decriminalization of offences in a society. Further plea bargaining has some limitations. For example, settlements in criminal matters do not have any educational, punitive or deterrent effect on the society. Plea bargaining programs do not create precedent, define legal forms or establish any national standards or legal rules. It cannot correct systemic injustice and sometimes it discriminates and violates human rights.[5]

In conclusion, techniques of ADR are extensively used within criminal law proceedings. There are different programs regarding these mechanisms used around the globe in order to speed up the proceedings and find a more effective solution. Different approaches among countries use mechanisms of ADR, therefore most of the cases are resolved through plea bargain rather than going to trial.

[1] Criminal Justice and ADR, Shirli Kirschner,< https://www.mediate.com/articles/kirschnersbl20180126.cfm > accessed 10 May 2021

[2] Maria R Volpe, 'Promises and Challenges- ADR in the Criminal Justice System' (2000) 7 Disp Resol Mag 4, p. 3-5

[3] Thomas Trenczek, 'Victim-Offender Mediation in Germany - ADR under the Shadow of the Criminal Law' (2001) 13 Bond L Rev [i], p. 3-4

[4]Jamila A Chowdhury, 'ADR in Criminal Cases and Decriminalisation of Violence: A Gender Perspective' (2016) 7 Indian JL & Just 1

[5] Jamila A Chowdhury, 'ADR in Criminal Cases and Decriminalisation of Violence: A Gender Perspective' (2016) 7 Indian JL & Just 1