In my criminal law practice, I repeatedly face situations in which I question whether a criminal trial is really the best approach. I am convinced that many punishable offenses could be resolved in an alternative manner, with sustainable as well as immediate advantages for all involved. This would allow injured parties to contribute their thoughts and proposals for a resolution. They could quickly receive reparations. The person accused could take responsibility and fulfill restitution.

The earlier mediation is introduced in criminal proceedings, the more favorable it appears to me, also from the point of view of procedural economy. The preconditions must therefore be guaranteed with all the more caution (keywords: protected space, confidentiality, complete voluntary participation, especially of the injured parties). Mediation can be introduced in various ways: the prosecutor in charge can suggest to the parties that they try mediation at their own expense. Alternatively, the public prosecutor could order mediation as an Ersatzmassnahme (Art. 237 StGB), e.g. to reduce the risk of re-offending in cases of domestic violence, whereby the costs would be added to those of the criminal proceedings. Finally, it is worth considering outsourcing a Vergleichsverhandlung (Art. 316 StGB), whereby a settlement could lead to the criminal proceedings being dropped.

In any case, it is important to involve the criminal prosecution authorities so that it is clear to all parties what an agreed settlement signifies for the further course of the criminal proceedings. A practice-proven example of a mediation agreement during ongoing criminal proceedings with the involvement of the prosecution can be found here.

• Can help to process the trauma
• Taking responsibility by the offender
• Reparation; apology

• Non-binding initial telephone call
• Individual discussions (checking eligibility for mediation, identifying concerns, defining the setting)
• If necessary, making contact with the criminal prosecution authorities (to clarify what is to happen if the mediation is successful)
• Depending on the wishes of the injured party(ies): meeting together or communicating through the mediator or
• alternatively, a meeting via video
• Agreements
• Controlling the enforcement of the agreement (e.g. payment of compensation)