Mediation in criminal proceedings

What is mediation in criminal proceedings?

Mediation in criminal proceedings is a structured and voluntary process in which the suspect or accused person and the injured party try to resolve the consequences of an offence with the assistance of an impartial mediator. It does not replace the criminal trial and does not decide whether the accused is guilty. Its purpose is to create a safe procedural framework for dialogue, clarification of expectations and, where possible, agreement on how the harm caused by the offence should be repaired.

In Polish criminal procedure, mediation may be used both at the preparatory stage and during court proceedings. The legal basis is primarily Article 23a of the Polish Code of Criminal Procedure. The authority conducting the proceedings may refer the case to mediation only with the consent of the injured party and the suspect or accused. This consent is essential because mediation is based on voluntariness, neutrality and confidentiality.

The mediator is not a judge, prosecutor or defence counsel. The mediator’s role is to facilitate communication, explain the rules of the process, help the parties identify practical solutions and prepare a report for the authority conducting the proceedings. The mediator should not impose a settlement or assess criminal liability. The parties remain responsible for the content of any agreement reached.

What does mediation in criminal proceedings involve?

Mediation may involve a direct meeting between the accused and the injured party, but it can also be conducted indirectly if direct contact is not appropriate. In practice, the mediator may first meet the parties separately, verify whether they understand the nature of the process and assess whether mediation can be carried out safely and effectively.

The subject of mediation usually concerns the practical consequences of the offence. The parties may discuss compensation, repair of damage, return of property, apology, reimbursement of costs, rules of future contact or other conduct that may reduce the effects of the offence. In business-related criminal cases, mediation may also concern documentation, settlement of financial claims, restoration of cooperation or termination of a dispute in a controlled manner.

A mediation agreement does not automatically end criminal proceedings. The prosecutor or court assesses the procedural significance of the agreement in the context of the case. However, a positive outcome of mediation may be relevant when deciding on the penalty, compensation obligations, conditional discontinuance of proceedings or other procedural decisions available under criminal law. Article 53 § 3 of the Polish Criminal Code provides that, when imposing a penalty, the court takes into account positive results of mediation between the injured party and the perpetrator, or an agreement reached between them in proceedings before a court or prosecutor.

The statutory time framework is also important. Under Article 23a § 2 of the Polish Code of Criminal Procedure, mediation should not last longer than one month, and this period is not included in the duration of preparatory proceedings. This rule is intended to prevent mediation from becoming a tool for delaying the case while still allowing the parties sufficient time to discuss a realistic settlement.

When is it worth considering mediation in criminal proceedings?

Mediation may be useful when the injured party seeks not only punishment, but also compensation, explanation, apology or a practical solution to the consequences of the offence. It can be relevant in cases involving property damage, theft, fraud, threats, minor violence, family or neighbour conflicts, business disputes with a criminal-law element, and other matters where communication between the parties may reduce the conflict.

For the injured party, mediation may provide a faster and more direct way to address the harm suffered. Instead of waiting only for the outcome of the criminal judgment, the injured party may obtain a concrete proposal for repairing damage or securing future conduct. For the accused, mediation may demonstrate responsibility, support efforts to repair harm and reduce the risk of further escalation. It may also help present the case to the court in a more complete procedural context.

Mediation is not appropriate in every criminal case. It should not be used where there is a serious risk of pressure, intimidation, secondary victimisation or manipulation. Particular caution is required in cases involving domestic violence, sexual offences, organised crime or a significant imbalance between the parties. The decision to enter mediation should therefore be preceded by legal assessment, especially where the outcome may affect procedural strategy, civil claims or the position of the accused.

Why is early legal advice important?

A quick consultation with a lawyer may help determine whether mediation is procedurally useful, safe and consistent with the interests of the client. It may also prevent mistakes such as making statements that could be interpreted as an admission of guilt, accepting an unrealistic compensation obligation or signing an agreement that does not properly protect the party’s position in related civil, family or commercial proceedings.

Legal advice is particularly important before the mediation meeting and before signing any settlement. A lawyer can assess the legal consequences of proposed terms, explain how the agreement may be treated by the prosecutor or court, and help ensure that the wording is precise, capable of being implemented and, where appropriate, enforceable.

Legal support in criminal mediation

Support from a law firm in matters involving mediation in criminal proceedings may include in particular:

assessment of whether mediation is advisable in a specific criminal case,
preparation of the injured party, suspect or accused for mediation,
analysis of procedural risks connected with statements made during mediation,
review and negotiation of settlement terms, including compensation and repair of damage,
coordination of mediation with defence strategy or representation of the injured party,
preparation of procedural motions connected with the outcome of mediation,
assessment of the impact of the mediation agreement on penalty, conditional discontinuance or compensation claims.

Need assistance with mediation in criminal proceedings? Contact us.