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VOMA Quarterly


Volume 7, Number 3 : Fall-Winter 1996

A Publication of the Victim-Offender Mediation Association

Victim-Offender Mediation: The State of the Art

by Marty Price, J.D. Co-Chair, VOMA Board of Directors

Adapted from a presentation at the 1996 Conference of the Society of Professionals in Dispute Resolution (SPIDR)

In the April, 1996 Atlantic Monthly, in "Word Watch," a column about new words and new meanings in the English language, the term restorative justice appeared. I wasn't thrilled with the definition in the column, but for me, the significance was that it appeared there at all. The column continued, "Proponents make up an unlikely alliance, including wardens, academics, prison chaplains, lawmakers, judges and even some victims. The emergence of the concept and the term is an anomaly in an era of harsher sentencing guidelines and a push toward building more prisons."

In place of the "Word Watch" definition, I offer a definition of restorative justice that I prefer, drawn in part from the "bible" of restorative justice, Howard Zehr's book, Changing Lenses:

Instead of focusing solely on the offender and defining justice as the placing of blame (guilt) and the administration of pain (punishment), restorative justice recognizes that crime results in harm to the victim, the community and the offender. Restorative justice seeks to right the wrong through meaningful accountability by the offender, restoring the losses, as much as possible, to all who have suffered due to the crime. Restorative justice is not a program or set of programs, but a guiding philosophical paradigm.

The most common application of the restorative justice concept takes form as the victim-offender mediation or reconciliation program (VOMP/VORP), but victim-offender confrontations are not inherently restorative. Victim-offender meetings could be set up to be punitive, as well.

From humble beginnings....

Modern victim-offender mediation programs sprang from a seed planted in Kitchener, Ontario, Canada, over twenty years ago, after two intoxicated boys (aged 18 and 19) went on a rampage, wreaking destruction on a total of 22 cars. There were smashed windshields, mirrors, grills and lights, and cars disabled with broken radiators and slashed tires. This sort of thing was not an everyday occurrence in the small town of Kitchener and people were outraged.

The boys had no history of offenses; their probation officer, who had previously been a Mennonite community justice volunteer, thought that punishment was not what they needed. He recommended to the judge that "there could be some therapeutic value in these two young men having to personally face up to the victims of their numerous offenses." Initially, the judge dismissed the recommendation as "having no basis in law." But at the sentencing hearing, he ordered the boys to do as the probation officer had recommended.

While the probation officer observed, the boys went to the homes and stores of the 22 crime victims. They admitted their crimes and worked out an agreement for restitution of each of the victims' losses. Three months later, the boys had satisfied the agreements, paying back losses of over $2,000. The community experienced a kind of meaningful accountability that punishment could not provide, and the first North American VORP was born. Shortly thereafter, the new Kitchener program was replicated in Elkhart, Indiana, establishing the first VORP in the United States.

Most of the early VORPs were community based non-profits; many were affiliated with churches--often, Mennonite churches. The Mennonite Central Committee Office on Crime and Justice continues to provide information, resources, training and support for victim-offender programs world-wide.

Toward the mainstream of criminal/juvenile justice....

Today, in addition to the community non-profit and church-based programs, victim-offender mediation programs are commonly found in juvenile courts, probation and corrections departments, law enforcement agencies and victims' assistance programs. In one major city, a victim-offender program is being run by a county legal aid organization. In recent years, community dispute resolution centers all over the U.S. have expanded their neighborhood mediation programs to include victim-offender mediation. The vast majority of these programs mediate only with juvenile offenders and only with crimes against property; some accept minor assaults.

There are now well over 300 victim-offender mediation programs in the U.S., about 20 in Canada, over 500 in Europe and the U.K. and scattered programs in about 20 other countries. In the U.S., several large programs in metropolitan areas mediate over 1,000 cases per year and have budgets in six figures.

The expansion of victim-offender mediation programs into neighborhood mediation and criminal/juvenile justice system venues has sometimes brought with it a tendency to take familiar models of mediation in civil disputes and apply them to the victim-offender context. The models are only somewhat applicable. The victim-offender context differs in some fundamental ways, requiring some differences in training and mediation procedures:

  • It is usually (but not always) between total strangers.

  • There are usually major power imbalances which are inherent and appropriate to the victim-offender relationship, i.e., a wronged victim and a wrong-doer; generational power imbalances are common, i.e., juvenile offender and adult victim.

  • Relationship-based, separate, preliminary mediator meetings with victim and offender are the backbone of the process, to establish trust and safety, explain the process, answer the participants' questions and assist them in preparing for the face-to-face encounter. This is in contrast to the predominant civil model, which tends to discourage any mediator contact with the participants separately, in order to prevent the formation of alliances with the mediator which might compromise the mediator's neutrality.

  • There is a differing model of neutrality, in which the mediator respects the individuals, while acknowledging that a wrong was committed and structuring a process toward its rectification.

  • In most (but not all) cases, although we employ the tools of mediation, there may be no dispute to resolve, no conflict to mediate, no disputants, as we understand them in the civil mediation model.

  • In victim-offender mediation at its best, the focus is upon dialogue, understanding, empathy and healing, rather than being driven by over-arching goals of settlement or restitution.

Coming together for restorative justice....

Programs founded on the principles of restorative justice are being organized, sponsored and supported by the U.S. Department of Justice, National Institute of Justice and National Institute of Corrections. In 1994, the American Bar Association published its Endorsement of Victim-Offender Mediation/Dialogue Programs, and recommended that such programs be incorporated into federal, state and local criminal justice systems.

There has often been an uneasy relationship between victim-offender mediation programs and victims' advocacy programs. Victims' advocates have sometimes seen mediation as "soft on crime" and therefore, not in the best interests of victims. They also have objected loudly when victim-offender programs have been overly persuasive, or even subtly coercive, in their efforts to enlist the participation of victims.

The victims' assistance programs are teaching us how to work sensitively and respectfully with victims. At the same time, victims' advocacy organizations have been recognizing that swift and certain punishment, often important to victims' experience of justice, is many times not sufficient to allow victims to heal their wounds, and that confronting their offenders in mediation can help to meet their needs for healing. The recognition of common ground is leading to alliances and partnerships. For example:

  • In 1995, the National Organization for Victim Assistance (NOVA) published a monograph entitled, Restorative Community Justice: A Call to Action. NOVA has co-sponsored and co-trained, with the Center for Restorative Justice and Mediation at the University of Minnesota, three nationally-focused, advanced training programs for the mediation of seriously violent crimes.

  • Recently, Mothers Against Drunk Driving published in its quarterly, The MADDvocate, an article by restorative justice experts, Mark Umbreit and Gordon Bazemore, an article about the mediation of a drunk driving death case and an article about the Victim Offender Mediation Association.

  • MADD's National Director of Victims' Services, Janice Lord, a recognized authority on working with trauma victims, spoke at the 1996 Conference of Victim Offender Mediation Association and presented workshops on working sensitively with crime victims.

  • Earlier this year, the U.S. Department of Justice Office for Victims of Crime and NOVA convened a Restorative Justice Summit Conference in Washington, D.C., gathering leaders of the field to develop national policy.

What is the state of the art?

The trends are toward deepening the process and expanding its scope. Highly structured and mechanistic processes that were developed by the early programs are evolving in the direction of models that increasingly honor the relational, emotional and spiritual dimensions of crime and victimization, seeking dialogue from the heart. The "victim sensitive offender dialogue" or "humanistic mediation" model developed by Dr. Mark Umbreit and the "transformative mediation" model developed by Robert Baruch Bush and Joseph Folger are receiving widespread attention.

While the majority of victim-offender mediation programs limit their service to juvenile and property offenses, a growing number of programs are finding that a face-to-face encounter can be invaluable in even the most heinous of crimes. Usually at the request of the victims, a growing number of programs have now mediated rapes and other violent assaults; a number of mediations have taken place between murderers and the families of their victims. Increasingly, mediation is being used to help repair lives of victims and offenders devastated by drunk-driving fatalities.

It should be emphasized that, in cases of such serious, violent or catastrophic victimizations, the use of the victim-offender mediation process would not be recommended for all, or even for most victims and offenders. Such cases must be carefully assessed and screened for their appropriateness for mediation, and participation must be absolutely voluntary for both the victim and the offender.

For crimes of this kind, the VORP model of case development through separate, preliminary meetings provides a only a starting place. Extensive preparation of the participants is essential, often requiring months or even years of work with mediators and other helping professionals, before victim and offender are ready to come face-to-face.

What have we learned?

In the first two decades of victim-offender mediation, we learned the answers to some basic questions like, "Would victims really want to do this? Will it work? What benefits will it bring? Substantial research has indicated:
  • About two-thirds of the crime victims who are invited to participate in mediation choose to do so,

  • About two-thirds of the cases referred to mediation result in a face-to-face mediation session,

  • Over 90% of the cases actually mediated face-to-face result in a written agreement,

  • Over 90% of the written agreements are satisfactorily completed,

  • Victims and offenders who participate in mediation are very likely to experience satisfaction and a perception of fairness and justice,

  • Victims who participate in mediation report a reduction in their fear of being re-victimized by the same offender and

  • Offenders commit fewer and less serious offenses after participating in mediation.

Where are we going?

In the coming years, we will be "pushing the envelope" of victim-offender mediation, exploring ways to increase the healing potential of this process, expanding its application to a broader range of offenses and offenders and continuing to be "restorative justice pioneers," as this paradigm moves steadily into the mainstream of criminal justice. We will be developing new and creative applications of the restorative justice philosophy. All the while, our society dances a schizophrenic dance between the understandable fear that fuels the demand for more prisons, and a growing recognition that our criminal justice system is not working for us and will not be remedied by doing the same old things, but more of them.

References:

Peachey, Dean E. "The Kitchener Experiment," in Mediation and Criminal Justice, edited by Wright, Martin and Galaway, Burt, (1) 15 (1989, Sage Publications).

Umbreit, Mark S. and Robert B. Coates (1993). "Cross-Site Analysis of Victim Offender Mediation in Four States." Crime and Delinquency 39(4):565-585

Umbreit, Mark S. and Niemeyer, Mike (1996). "Victim Offender Mediation: From the Margins Toward the Mainstream." Perspectives, American Probation and Parole Association, Summer 1996, 28.

Bibliography:

Bush, Robert B. and Folger, Joseph P., The Promise of Mediation (1994, Jossey-Bass).

Umbreit, Mark S. Victim Meets Offender: The Impact of Restorative Justice and Mediation (1994, Criminal Justice Press).

Zehr, Howard. Changing Lenses (1990, Herald Press).

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Marty Price, J.D., an attorney and social worker turned to mediator, is the founder and director of the Victim-Offender Reconciliation Program (VORP) Information and Resource Center, in Asheville, North Carolina. He is the founder and former director of the VORP of Clackamas County (Oregon.) He is a former Board Member and former Co-Chair of the Victim-Offender Mediation Association (VOMA), a non-profit, international, educational and advocacy organization that promotes restorative justice and supports victim-offender mediation and reconciliation programs.

The Center provides information, training, public education, technical assistance, consulting and victim-offender mediation and reconciliation services. We serve non-profit organizations, governmental agencies and individuals. The Center specializes in juvenile justice and the mediation of drunk driving fatality cases and other crimes of severe violence.

Our mission is to bring restorative justice reform to our criminal justice system, to empower victims, offenders and communities to heal the effects of crime, to curb recidivism, and to offer our society a more effective and humanistic alternative to the growing outcry for more prisons and more punishment.

Victim-Offender Reconciliation Program (VORP)
Information and Resource Center
2826 Azalea Hills Dr. Charlotte, NC 28262

Please contact by email only. While in India, available for consultation, speaking, training, etc., only in India and surrounding countries.

E-mail: martyprice@vorp.com
World Wide Web: http://www.vorp.com

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