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ADR Report

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News and Strategies for Alternative Dispute Resolution Practitioners

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September 1999

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Published by Pike & Fischer, Inc., a subsidiary of BNA, The Bureau of National Affairs, Inc.

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Restorative Justice Warmly Received in Mexico

by Marty Price, J.D.

The process of mediation is relatively new in Mexico and the term restorative justice was virtually unheard of until this summer. The Mexican criminal justice system is even more punitive than the systems of the United States and Canada. But some Mexican visionaries imagined that there must be better ways to deal with conflict and crime.

This summer's initiative was spearheaded by Dr. Jorge Pesqueira, a law professor at the University of Sonora and president of the Instituto de Mediacion de Mexico, along with Sr. Sergio Herrera Trejo, the president of the Tribunal Superior de Mexico (the Supreme Court.) They conceived a five-week training course (60 hours per week), to which they would invite justices, judges, prosecutors, lawyers and psychologists from every state in Mexico. The Mexican Federal Government agreed to partially finance the initiative. Most of the states were represented at the course-one state sent 10 trainees. The course was held at the Tribunal Superior in Queretaro City, just north of Mexico City.

The first four weeks of the training presented theory, principles and skills for community mediation, family mediation, workplace mediation and the mediation of civil litigation. The last module was mediacion penal and justicia restaurativa.

I was the only gringo instructor/trainer. Most of the students spoke little or no English-I speak barely passable conversational Spanish. The language barrier was overcome with simultaneous translation, heard through earphones. I spoke Spanish when I could. I also made use of some Spanish language video and printed materials from the Mennonite Central Committee Office on Crime and Justice.

When I arrived in Queretaro, I was welcomed warmly. But my welcome at the airport did not prepare me for the excitement and enthusiasm that greeted me when I entered the classroom. The students had been building their anticipation for an introduction to mediacion penal. They were extremely open and more than willing to participate actively. So the course was very interactive, with lots of experiential exercises and discussion. I sensed no resistance to anything I presented.

During the course, many students indicated that my presentation was totally different than they had imagined. They were expecting a legalistic process-my emphasis on humanistic and transformative principles and a spiritual dimension to mediation thrilled them. I developed friendships and collegial relationships with some extraordinarily dedicated and compassionate people.

At the end of the course, I asked students to talk about what they found meaningful and how they hoped to use it in their communities. They expressed excitement, hope and intentions to begin educating their communities, eventually starting restorative justice programs.

Much pomp and circumstance attended graduation from the course, with many news cameras, press photographers and reporters. Dignitaries and officials from every level of government made speeches and offered congratulations, many expressing sentiments that this course was part of the hope for a new Mexico. I felt honored to have made my contribution.

An Observation

My education in Mexican law included an understanding of the distinction between the "Principle of Legality" and the "Principle of Opportunity." The "Principle of Legality," which is a foundation of Mexican law, dictates that the letter of the law is followed without deviation. There is no prosecutorial discretion, no plea-bargaining, no judicial discretion and no probation or parole. All sentences are prescribed and a convicted person serves the full time required by the sentence.

Mexican legal scholars see the U.S. and Canadian criminal justice systems as founded in the "Principle of Opportunity," where prosecutorial and judicial discretion, plea-bargaining, etc., are used to make justice more humane. Advocates of legal reform in Mexico want to move their justice system away from the "Principle of Legality" and toward the "Principle of Opportunity."

It seems ironic to me that here, north of the border, the pendulum seems to be swinging in the opposite direction, as evidenced by the recent deluge of laws prescribing mandatory sentences, mandatory minimums and laws that require children to be tried and punished as adults.

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