Mediated Civil Compromise - A Tool for Restorative Justiceby Marty Price, J.D.
You represent a client who is accused of embezzling several thousand dollars from his employer. The employer is a small business where he has worked for a number of years in a position of trust and responsibility. The business owner is shocked and outraged. Your client has no criminal record and has admitted to you that he stole the money to pay off a gambling debt. You see no plausible defenses. Upon your advice, he has plead "not guilty" in the hope of obtaining a favorable plea bargain.
This is but one of many examples of a case of a serious (or not so serious) offense in which society has little or no need to exact retribution from the offender and, likewise, little or no need to punish for the sake of deterrence. Realistically, harm was done only to the victim. If an agreement could be reached, by which:
then most would agree that the state's scarce justice dollars would be better spent prosecuting another offender who, absent remorse and meaningful responsibility, presents a genuine threat to the public. This is the philosophy of restorative justice, rather than retributive justice, and it is from this philosophy that Victim Offender Reconciliation Programs (VORP) and Victim Offender Mediation Programs were born, about fifteen years ago.
- the offender would take meaningful responsibility for the harm done by restoring the victim's losses, and by which,
- the offender could demonstrate his remorse and become reconciled with the victim,
VORP and similar programs personalize crime by using a trained mediator--sometimes a professional, sometimes a community volunteer, to bring the offender and the victim face-to-face, in a carefully structured, voluntary and safe confrontation. The mediator is a non-judging neutral who will not impose any decision or dictate any result. The mediator facilitates a discussion in which victims get answers to the fear-allaying questions that only the offender can answer (often, "Why did you do this to me?"), express their feelings about the incident to the offender, and work out a restitution contract with the offender to compensate them for their losses. Victims, who are often treated as largely irrelevant bystanders to the criminal justice process (unless they are needed as witnesses), are empowered to become a principal participant in the resolution of a crime that was committed against them. Victims often report, after mediation, that what was most important to them was the chance to make some impact on the crime problem by convincing this offender not to offend again.
Offenders receive, in many cases, the unique opportunity to avoid prosecution by taking responsibility and righting their wrong. They can help determine the consequences they will bear, instead of having them handed down by a court. They will come to understand, at a human-to-human level, the nature and consequences of the harm that they did to another person, instead of being isolated and insulated from that knowledge by lawyers and courts. The necessary protections that our criminal justice system affords the accused have, as one of their unfortunate side effects, the tendency to focus the offender's attention upon defenses, evidence, and hearings or trial rather than upon the crime that the he/she committed. The preoccupation is with exculpation or with obtaining the least possible punishment. No one wants to be punished--it's a normal response. (It should be noted here that the usefulness and appropriateness of criminal mediation are predicated upon an assumption that the accused is guilty of the offense. Only in very rare cases should an accused who genuinely asserts, rather than merely pleads, his innocence, be brought to mediate with his alleged victim. If the accused is not prepared to take responsibility for the offense, he should avail himself of his right to the presumption of innocence.)
Offenders also receive, in mediation, the opportunity to ask for and receive forgiveness. The most important benefit for offenders may be the emotional and psychological release from the self-image of "offender" or "criminal" that is brought about by righting the wrong. This "release" is not typically experienced after punishment without restitution and reconciliation. Many "rehabilitated" offenders report, after incarceration, that having paid their "debt to society" is not sufficient. They feel that they must still apologize and right their wrong to the victim. This a necessary part of the regaining of their self-respect.
Today, the benefits of criminal mediation programs are well recognized and documented. There are over 300 of them in the U.S. and Canada; over 500 in England, Europe and elsewhere. Experience and statistics from these programs show:
According to Professor John O. Haley, of the University of Washington School of Law, various studies now show that wrongdoers, in general, experience distress after committing an offense and respond either by attempting to restore relationships through remorse and restitution, or by seeking to justify their misconduct. These are alternative responses. But the desire to demonstrate remorse, make restitution, and receive forgiveness is commonly the initial reaction that, if not satisfied, leads to justification for the offense. Thus, unless given a chance to express guilt and remorse and receive forgiveness, many offenders will excuse their crime by blaming the victim, the society or someone else. For many offenders, therefore, mediated settlement in criminal cases serves as a correctional process, unlike the prisons we euphemistically call "correctional."
- About two thirds of the cases referred to criminal mediation programs are actually mediated. In the majority of the cases which are not mediated, the victim declines to participate. Not infrequently, an offender prefers facing a judge to facing his victim. Some cases are screened out by program staff as inappropriate for mediation, usually out of a concern for insuring the safety of the victim.
- Of the cases mediated, over 90% result in a restitution agreement and contract. Restitution may take the form of a payment of money, in a lump sum or installments, repair or replacement of damaged or stolen property, personal service for the victim or other solutions limited only by the creativity of the parties and the mediator. Contracts between a victim and an offender who have some kind of an ongoing relationship often include agreements to engage in, or refrain from engaging in, a specified behavior. In some cases, after meeting the offender, all that the victim wants is an apology and a promise never to do it again. Contracts with juvenile offenders often contain agreements concerning school--to return to school, to stay and graduate or to maintain a specified minimum grade average. These reflect the fairly common desire among victims to have some good emerge from their victimization.
- Of the cases in which a restitution contract is signed, over 95% of the contracts are satisfactorily completed within one year of the mediation; 60% are completed within 6 months. Mediation program staff monitor completion of the contracts and arrange additional mediation meetings, when necessary, to secure compliance or to modify the terms of the contract. Studies of court-ordered restitution show 20-30% compliance as typical. The reason for this huge difference in compliance is probably that offenders who make an agreement for restitution feel like it is their agreement. Restitution orders handed down by a court are commonly perceived as more of a punishment than a moral obligation. Another reason for the difference in compliance may be that the mediation process, unlike court-ordered restitution, is designed to produce a restitution agreement which the offender has a reasonable chance of performing. Mediators are trained to guide the negotiations in a direction which balances the victim's right to compensation with the offender's need to make a realistic commitment.
- 75% of victims and 65% of offenders who mediate report satisfaction with the way that their case was handled; 85% of both victims and offenders who mediate report that a fair result was reached in their case. Typically, less that 40% of victims and less than 20% of offenders report a sense of fairness and satisfaction with the result, in non-mediated cases.
- Newly emerging evidence, still tentative in its scope, suggests that offenders who mediate with their victims are dramatically less likely to return to crime than comparable offenders who have been dealt with in the usual ways. VORPs throughout the U.S. report recidivism rates of under 10% for offenders who have been through their programs, as compared to the typical recidivism rates of from 50-85%.
The United States has the highest per capita rate of incarceration of any country in the world and our crime rate continues to soar. Housing a single prisoner costs from $25,000 to $50,000 a year, depending on the facilities required to secure him. The most serious offenders are sentenced to prison, where they are dehumanized, further alienated, hardened, and further educated in criminal thinking and skills; less serious offenders are turned loose without accountability or moral awakening and consequently, with a likelihood that they will victimize again. Justice officials plead for more prison beds while the public cries out in fear for their lives and their property. It is abundantly clear that our system of crime and punishment has failed us. We must find humane, cost-effective alternatives that have the potential to do better.
The notion of restorative justice has hope to offer and many benefits for the community and the criminal justice system. Victim-offender mediation presents an alternative to punishment which reinforces social values and emphasizes accountability. It is by no means a panacea and it is not appropriate for every case. But its applicability is broad and where it is used, offenders restore the losses they have caused, at minimal cost to society. The average cost of mediating a criminal case is only a few hundred dollars and that expenditure can be saved many times over in the cost of punishment not imposed. Repeat crime can be deterred by engendering "victim empathy" in offenders as they are put into contact with the real human consequences of their actions, and by making them accountable to their victims. Nothing else in the criminal justice process has as much potential for diverting beginners from a criminal career. Recidivism rates can be further reduced by avoiding the damaging effects of incarceration, which often lead to further crime. Judges, probation officers and other resources are made more available for use in situations that are not amenable to mediation. The criminal justice system leverages resources by enlisting the aid of victims in the resolution of their crime and by recruiting volunteer mediators from the community. The community is involved in solving its crime problem. Community education about conflict resolution is fostered and increased understanding of criminal justice results from victim and volunteer involvement. The assistance to crime victims which is provided by such programs positively affects victim attitudes and involvements with the criminal justice system. The public's satisfaction with the criminal justice system increases along with the perception that fairness and justice are being done.
If victim-offender mediation has so many benefits for victims, offenders, the community and the criminal justice system, then why are there not 3,000 such programs instead of 300? Some of the answers are obvious, like scarce dollars for criminal justice programs. Typically none of the money that is saved by criminal mediation is made available to pay for the mediation programs. The costs saved do not reappear in a budget as funds available to be allocated. There is always another offender to fill a prison bed or a slot in a prosecutor's or probation department's caseload. Unless restorative justice is declared to be a matter of priority for public policy, savings will not be identified and reallocated.
Another reason why these programs are not more widespread is that prosecutors' offices and law enforcement agencies in communities that are not currently mediating crime may see victim-offender mediation as "soft on crime"--a perception that is not politically desirable in these times. (I will note here that, in communities where victim-offender mediation programs are in use, prosecutors and law enforcement officials are among the staunchest supporters of the programs.) There is a popular belief that the public wants more punishment for offenders. Of course , it goes without saying that public outcries for more punishment come because, as a society, we don't know what else to do about our crime problem. VORP research has shown that members of the public want more punishment when they are asked about this issue in the abstract, without names and faces attached. But after crimes have been personalized, names and faces are put on the offenders, and stereotypes about "the monsters who would do things like this" are broken down in a face-to-face encounter with the offender, victims consistently state a preference for less punishment and more meaningful accountability. The key, of course, is that the victim's fears are fueled by the unknown, and allayed by knowledge about the offender. This reduction in victims' often disabling fear after being victimized is regularly cited by victims to be one of the most valuable benefits of meeting their offender.
Victim-offender mediation programs are usually operated by either a public agency or the private non-profit sector of the community. They have not, largely, found their way into the area of private practice. To discuss that potential, let us return now to the embezzlement scenario that I painted at the beginning of this article. In that situation, a relationship of trust was seriously violated, the business owner is entitled to compensation for his financial losses, and your client has everything to lose as a result of his actions. A mediated civil compromise could restore the employer's losses, allow your client to take responsibility for his deed, and obviate any need for the public to exact retribution. If the reconciliation process is very successful, the employer may agree to rehire your client (who was a valued employee) and allow him to "work off" some or all of the restitution owed. The complainant may no longer have any interest in seeing your client prosecuted. As prosecutors must increasingly exercise their discretion and prioritize the cases to be pursued, a dismissal is likely. Even in a case where there is no relationship between the victim and your client, a similar result can often be reached.
Some prosecutors' offices, often having little or no experience with the mediation process or its use in criminal cases, officially oppose the use of civil compromise or mediation on the public policy ground that it fails to address society's interest in punishing and deterring the offender. But when agreements mediated between the victim of the crime and the offender are presented to the court for its approval, prosecutors, knowing that the courts favor such agreements (even if for no reason other than docket management), typically offer only pro forma opposition, unless the agreement appears to be patently unfair.
The tool of civil compromise is not often used by defense attorneys, for several reasons. There may be a no-contact order. Whether or not there is such an order, the attorney may be concerned with avoiding the appearance of impropriety and any suggestion of intimidation or bribery. The defense attorney, who cannot be neutral, will not be perceived by the victim as having the victim's best interests at heart. The attorney's conflict resolution skills are those of advocacy and negotiation-the skills required for successful mediation are not the same. There are too many factors working against the likelihood that the attorney will be able to orchestrate a successful civil compromise.
Enter the criminal justice mediator--usually a social worker, mental health therapist or "recovering attorney"--skilled in sensitive and caring outreach to crime victims. The mediator is engaged by the defense attorney, on behalf of the client. He/she will meet with the offender and the victim, separately at first, to develop the case, determining whether it is appropriate for mediation, establishing trust and rapport, and obtaining an agreement to mediate. The mediator explains his/her role as a neutral facilitator and listens empathetically to the concerns of both victim and offender. The benefits which may be obtained through mediation are explained, and the mediator emphasizes that participation is voluntary. If both parties agree to mediate, they are prepared for the mediation. The mediator also works with the prosecution to maximize the likelihood that the restitution contract will be accepted and that a dismissal will be granted if a civil compromise is reached.
I wish to make the criminal defense bar aware of the availability of the tool of mediated civil compromise and suggest that its use, in appropriate cases, would be cost-effective and would benefit everyone involved. So, what kinds of cases are good candidates for mediation? The process has been documented to be of the most benefit to those who are not chronic, serious offenders. However, there are no rigid rules and cases must be individually screened. I invite defense attorneys to contact me for assistance in determining the appropriateness for mediation of any case that you may be considering. For some specifics, look for:
- A client who admits guilt, or at least, seems to be moving in the direction of accepting responsibility for the offense. A question of guilt is usually not mediable.
- An offender who is at least open to talking about meeting with the victim and negotiating restitution or other issues. A good mediator can often convince a reticent offender of the benefits available to him from mediation.
- An offender who has the capacity to speak for himself in mediation.
- An identified or identifiable victim with whom to mediate. The defense attorney may or may not have any information about the victim's willingness or ability to mediate. If you have not already made contact with the victim, I recommend that defense attorneys leave the victim outreach to the mediator.
- Some loss, damage or harm (monetary or non-monetary), for which restitution or restoration could be mediated.
- Give extra consideration to mediation for a client who has, or had an ongoing relationship with the victim of the crime.
- Particularly ripe for mediation are situations in which there is a dispute over what losses were suffered, what losses were caused by the offender, or in which there is a dispute over the value of the victim's losses.
In closing, I'd like to share a bit of humor from the trenches. A case of a theft that I mediated about 6 months ago has recently returned. When I last monitored compliance with the restitution contract, payments were being made by the young offender as agreed upon. However, I will soon be conducting a victim-offender mediation between him and his parents. I have learned that he forged some of their checks in order to obtain funds to make the restitution payments to his victim. You win some--you lose some.
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.
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