DISPUTE RESOLUTION PROGRAMS

One night in 1974, two young men in Elmira, Ontario, Canada, vandalized the property of twenty-two people: they broke windows, slashed tires, and damaged churches, stores, and cars. They pled guilty to twenty-two charges. The offenders did not pay restitution to the court clerk's office, however. Instead, in an experiment jointly administered by the probation department's volunteer program and the Mennonite Central Committee, the two young offenders met with each of their victims. It was hoped that meeting with the victims would help the offenders to see restitution payments less as fines and more as compensation to real people for real losses. Within six months, the young men had fulfilled their restitution obligations in full. Many see this case as the birth of victim-offender mediation, the principal form of dispute resolution in criminal cases. The success of this experiment encouraged others to develop similar programs.

History

In the mid-1970s, dispute resolution programs began to grow in the United States. The Minneapolis Restitution Center, for example, offered criminal offenders the opportunity to live and work outside the prison setting in order to make restitution payments to the victims of their crimes. As part of the program, offenders would meet with their victims in the presence of a program counselor to discuss the terms of restitution payment. A comparable program in the state of Oklahoma required juvenile offenders to make contact (in person or by letter) with the victims to whom they owed restitution.

Victim-offender mediation programs multiplied dramatically in the 1980s and 1990s. A study in 1998 found more than 289 victim-offender mediation programs in the United States. In 1994, researchers documented 20 projects in England, 26 in Canada, 54 in Norway, 40 in France, 293 in Germany, 130 in Finland, 8 in Belgium, and 1 in Scotland (Umbreit, 1994). The growth of victim-offender mediation has paralleled an increased interest in restitution for victims of crime. Mediation is seen as a cheap, informal way to determine the amount of restitution to be paid, while at the same time allowing for some interaction between victim and offender.

Variety in program structures and protocols

The expectations for interaction vary highly from one program to another. Most victim-offender mediation programs involve face-to-face meetings between crime victims and offenders in the presence of trained mediators. Beyond this basic description, victim-offender mediation programs defy generalization. While many programs concern themselves primarily with hammering out restitution agreements, others also seek to address emotional issues surrounding the crime. Offenders are held more accountable as they face the consequences of their crime for the victim; some take the opportunity, for the first time, to apologize directly to the victim. Victims gain a sense of empowerment and closure by facing their offenders and explaining the impact of the crime. Some victim-offender mediation programs strive not just to establish restitution agreements, but actually to effect some "reconciliation" between the victim and the offender, resolving conflict that the crime has created. These more ambitious goals are frequently found in mediation programs that are called "Victim-Offender Reconciliation Programs."

Some programs focus on cases involving misdemeanors—mostly nonviolent property crimes. Other programs limit their cases to felonies. Most programs mediate some combination of misdemeanors and felonies. Some programs occasionally mediate cases involving severely violent crimes, such as assault with a deadly weapon, sexual assault, negligent homicide, attempted murder, and murder.

The diverse goals of victim-offender mediation programs are reflected in their relative entanglement in the criminal justice system. Most victim-offender mediation programs are distinguishable from standard community mediation programs (even though community mediation programs may also handle cases involving technically criminal conduct) because the victim-offender programs mediate cases in which the participants' roles as victim and wrongdoer are more clearly defined. Indeed, community mediation programs receive referrals primarily from civil, rather than criminal, courts; they also provide an alternative to the adversary system altogether, diverting cases before they enter the criminal justice system. Referrals to victim-offender mediation programs, in contrast, are usually made by law enforcement or criminal court personnel after an offender has entered the criminal justice system. Victim-offender mediation programs catch cases at various points in the criminal justice process: on the early side, mediation occurs after arrest and before any charges are filed; on the late side, mediation may follow an offender's conviction and sentencing. Sometimes the mediation occurs while the offender is serving time in prison.

While some mediation programs are restricted to juvenile offenders, others take exclusively adults. This is an important area of difference, because American courts have treated juvenile offenders differently from adults for the better part of the twentieth century. This difference in treatment is epitomized, of course, by the existence of separate juvenile courts, which have emphasized rehabilitation of offenders and restitution of victims more than adult courts. With respect to adult offenders, the emphasis has shifted to deterrence and incapacitation. Arguably, therefore, mediation involving adult offenders marks a more radical departure (than mediation in juvenile cases does) from the system and its traditional goals.

In most programs, once a case is referred, it is assigned to a mediator—usually a volunteer from the community—who contacts the victim and offender individually. If the parties agree to mediate, the mediator sets a time and place for the mediation to be held and conducts the mediation. If the parties reach agreement, they enter into a written contract outlining the provisions of their agreement, both monetary and nonmonetary (e.g., service to the community or the victim; an apology; or a special project by the offender involving a third party). The mediator returns a written report of the mediation and a copy of the contract to the program office. Generally, the report is a summary of the mediation, including preliminary contacts, the meeting between the parties, and the restitution contract. The administrator of the program forwards the contract (often with a copy of the report as well) to the referring agency. In most victim-offender mediation programs, staff monitor performance of the contract; in some systems, the probation office will also check to insure that restitution is paid if it is a condition of probation.

If one of the parties refuses to mediate or the parties cannot resolve the case in mediation, the case is returned to the referring agency—the prosecutor's office, the court, or the probation office. There, the offender will be subject to the ordinary course of state prosecution and sentencing. Sometimes the mediator will report back to the referring agency about the case. If the offender was somehow responsible for the failure to resolve the case (by refusing to mediate or agree to the victim's demands), the judge may take the failed mediation into account when sentencing the offender. Similarly, if the victim's uncooperative attitude prevented the parties from mediating or reaching agreement, a judge subsequently setting a restitution amount could also be made aware of the victim's actions.

Critique

Victim-offender mediation transforms the criminal justice paradigm by placing victims at the center, rather than on the periphery, of the criminal process. Generally this is viewed as a positive development—one that increases the efficiency of the system and the quality of outcomes for both victims and offenders. Mediation programs are nonetheless controversial because they can transfer the power to resolve all or part of a criminal case from the state to a private party—the victim. Placing such control in the hands of the victim is problematic. Critics of such programs argue that without careful monitoring and administration, victim-offender mediation programs could disserve the interests of victims, offenders, and the state.

Victims could suffer in mediation if the programs place undue stress on forgiveness and reconciliation before victims have the vindication of a public finding that the offender is guilty. If mediators too easily assume that victims' outrage and loss can be expressed and resolved in the course of a few hours with their offenders, mediation might impede, rather than facilitate, victims' healing. This would undercut one of the central goals of such programs.

Victim-offender mediation could disserve offenders in three ways: by using screening criteria that are not clearly related to the goals of the program (thus permitting articulate offenders to participate rather than those who are sincerely remorseful); by eliminating procedural protections such as the right to counsel or rules of evidence; and by using the leverage of pending criminal process to gain advantages for the victim, a private party. If offenders believe that they will be worse off in the ordinary criminal justice system should they fail to reach a mediated agreement satisfactory to their victims, the offenders may have an unduly strong incentive to mediate and reach agreement, no matter what the psychic or monetary cost.

An underlying assumption in many victim-offender mediation programs is that crimes are private disputes that fracture relationships between individuals; the state's interest in these disputes is minimal. The structure of many victim-offender mediation programs belies this assumption, however, because the mediation occurs before a backdrop of state involvement and coercion. Victims of crime negotiate not only with their own individual bargaining strength, but also with the threat of enhanced state punishment should the parties fail to reach agreement. The victim can appropriate some of the state's leverage over the offender if the victim and the offender know that the offender is more likely to be prosecuted or incarcerated if the victim is not satisfied with the mediation.

Moreover, despite proponents' claims that victim-offender mediation can resolve criminal cases according to the substantive standards of the "community" in which the crime occurred, such a community may be difficult to identify, apart from the state itself. When centralized rules of criminal law are rejected in the name of a "community" that may not even exist, any standard may fill the vacuum to resolve individual cases. Often, success is measured by the victim's satisfaction with the outcome rather than consistency with substantive legal rules. Focusing on the end to be obtained (the parties' ability to reach agreement), victim-offender mediation programs may lose sight of important procedural norms, resulting in a lack of counsel for the offender, or coercion prior to and during the mediation.

To maintain the integrity of the criminal justice system as well as the mediation process, some critics have called for a decoupling of mediation from the court system: the success or failure of the mediation should have no impact on the offender's prosecution or punishment. This recommendation turns, to some degree, on empiricism about the deterrent and rehabilitative effects of victim-offender mediation. To the extent that mediation is shown to reduce criminal activity generally or among offender participants, a stronger case can be made that these programs are consistent with, and actually promote, the traditional goals of the criminal justice system. In that case, conditioning prosecution on mediation and its results would be appropriate.

Jennifer Gerarda Brown

See also Family Relationships and Crime; Informal Disposition; Pretrial Diversion; Prevention: Community Programs; Prosecution: Comparative Aspects; Restorative Justice; Victims; Victims' Rights.

BIBLIOGRAPHY

Braithwaite, John. Crime, Shame, and Reintegration. Cambridge University Press, 1989.

——. "Restorative Justice: Assessing Optimistic and Pessimistic Accounts." Crime and Justice: A Review of Research, vol. 25. (ed. M. Tonry), 1999, pp. 1–127.

Brown, Jennifer Gerarda. "The Use of Mediation to Resolve Criminal Cases: A Procedural Critique." Emory Law Journal 43 (1994): 1247–1309.

Danzig, Richard. "Toward the Creation of a Complementary, Decentralized System of Criminal Justice." Stanford Law Review 26 (1973): 1–54.

Felstiner, William, and Williams, Lynne. "Mediation as an Alternative to Criminal Prosecution: Ideology and Limitations." Law and Human Behavior 2 (1978): 223–244.

Galaway, Burt, and Hudson, Joe, eds. Criminal Justice, Restitution, and Reconciliation. Monsey, N.Y.: Criminal Justice Press, 1990.

Rice, Paul. "Mediation and Arbitration as a Civil Alternative to the Criminal Justice System—An Overview and Legal Analysis." American University Law Review 29 (1979): 17–81.

Umbreit, Mark S. Crime and Reconciliation: Creative Options for Victims and Offenders. Nashville, Tenn.: Abingdon Press, 1985.

——. Victim Meets Offender: The Impact of Restorative Justice and Mediation. Monsey, N.Y.: Criminal Justice Press, 1994.

Wright, Martin, and Galaway, Burt. Mediation and Criminal Justice. London: SAGE, 1989.

Zehr, Howard. Changing Lenses. Scottsdale, Penn: Herald Press, 1990.