Handbook on Restorative justice programmes

HANDBOOK ON RESTORATIVE JUSTICE PROGRAMMES
41 
See: Jabbour, 1996; Parker, 2004, and Van Ness, 2005.
42 
Fellegi, 2003, pp. 74-76.

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51
The need for legislation to provide a framework for restorative justice pro-
grammes has been summarized as follows:
“But when restorative justice programmes are developing in a
given country, one feels the need for some regulation. This regu-
lation does not necessarily take the form of a formal law.
Mediation practice is also directed by decrees, ministerial circu-
lars and—probably the most common method—by good practice
standards drawn by mediators and their organizations.
Moreover, the formal regulation of mediation is not exclusively
the realm of criminal law, mediation programmes can also be reg-
ulated by administrative authorities and regional governments.
But since mediation concerns criminal offences, one should not
neglect its relation to criminal law and criminal justice. This type
of mediation—in a broad sense—is part of criminal procedure.
Therefore, victim-offender mediation and other restorative jus-
tice programmes should be recognised (and supervised) by offi-
cial bodies. Before, during and after the process of mediation,
legal protection and safeguards should be available”.
43
Restorative justice programmes generally operate within the context of
or alongside the larger criminal justice system. As such, these pro-
grammes must negotiate a substantive role in, or as an alternative to,
the formal justice system or otherwise risk being marginalized and
underutilized. In the absence of statutory requirements, it may be dif-
ficult for a restorative justice programme to insert itself into the daily
routine of the criminal justice system. Legislation may be useful in pro-
viding the impetus for a more frequent use of the restorative justice
process. It can also be used to promote predictability and certainty in
the use of the restorative process as well as to establish all of the nec-
essary legal safeguards.
44
Paragraph 12 of the Basic Principles contains a reminder that legislative
action may also be necessary, depending on the legal context, in order 
to set some standards and provide some mandatory legal safeguards 
for participants.