Dispute Resolution Magazine
Published by the American Bar Association
Mediation Produces Restorative Justice for Victims and Offendersby Marty Price, J.D.
Our traditional criminal justice system is a system of retributive justice--a system of institutionalized vengeance. The system is based on the belief that justice is accomplished by assigning blame and administering pain. If you do the crime, you do the time. If you do the time, then you've paid your debt to society and justice has been done. But justice for whom?
In our system, crime is defined as an act against the state (e.g., State v. John Jones) rather than an act against individuals and their community. The prosecutor is the attorney for the state, not the harmed individuals. Victims may be viewed, at worst, as impediments to the prosecutorial process--at best, as valuable witnesses for the prosecution of the state's case. Only the most progressive prosecutor's offices view crime victims as their clients and prioritize the needs of victims.
The criminal justice system is offender-centered, placing its emphasis upon guilt, punishment and the rights of the accused. Crime victims' so-called rights are violated as often as they are honored. In most victims' rights amendments and statutes, these are rights without remedies.
Incarceration may be said to serve functions other than retribution--incapacitation, deterrence and rehabilitation. Public safety requires incapacitation of the minority of incarcerated offenders who are violent and dangerous. Intuitively, incarceration (or the threat of incarceration) may seem like a deterrent, but its proven deterrent effects are extremely limited. It is generally agreed that some rehabilitation programs work (notably, drug treatment), but rehabilitation as a goal of imprisonment has been widely abandoned by the corrections system in the United States since the 1970s. Although it is difficult to justify empirically on a broad scale, punishment appears to be a societal value in and of itself. Politicians cry out for more and longer prison terms; the building of prisons has become a major growth industry. In some states, the corrections budget exceeds the education budget.
Punishment often unsatisfying for many crime victims
Because our society defines justice in terms of guilt and punishment, crime victims often seek the most severe possible punishment for their offenders. Victims believe this will bring them justice, but it often leaves them feeling empty and unsatisfied. Retribution cannot restore their losses, answer their questions, relieve their fears, help them make sense of their tragedy or heal their wounds. And punishment cannot mend the torn fabric of the community that has been violated.
As a result of this punitive approach to justice, the United States has become the largest per capita jailer in the world, with the highest violent crime rate of any industrialized nation. Offenders are warehoused in a prison culture that rewards violence, intimidation, meanness, deceit, manipulation and denial. They often return to the community even more antisocial than before they were incarcerated, making recidivism likely.
Focus on individuals and healing
Restorative justice has emerged as a social movement for justice reform. Virtually every State is implementing restorative justice at state, regional and/or local levels. A growing number of states that have officially adopted restorative justice principles and policies require any justice program that receives state funding to adhere to these principles. Instead of viewing crime as a violation of law, restorative justice emphasizes one fundamental fact: crime damages people, communities and relationships. Retributive justice asks three questions: who did it, what laws were broken, and what should be done to punish or treat the offender? Contrast a restorative justice inquiry, in which three very different questions receive primary emphasis. First, what is the nature of the harm resulting from the crime? Second, what needs to be done to "make it right" or repair the harm? Third, who is responsible for the repair?
Traditionally, accountability has been viewed as compliance with program rules or as taking one's punishment. But accepting punishment is passive, requiring nothing from the offender. A restorative justice system holds the offender accountable by facilitating and enforcing reparative agreements, including restitution. Restorative justice recognizes that we must give offenders the opportunity to right their wrongs and redeem themselves, in their own eyes and in the eyes of the community.
A different paradigm
Restorative justice is not any one program. It is a different paradigm for understanding and responding to issues of crime and justice. Restorative justice takes its most familiar forms in victim-offender mediation (VOM) programs and victim-offender reconciliation programs (VORP). Other restorative justice responses to crime include family group conferencing, community sentencing circles, neighborhood accountability boards, reparative probation, restitution programs, restorative community service, victim and community impact statements and victim awareness panels.
As the most common application of restorative justice principles, VOM/VORP programs warrant examination in detail. These programs bring offenders face to face with the victims of their crimes, with the assistance of a trained mediator, usually a community volunteer. Victim participation is always voluntary; offender participation is voluntary in most programs.
In mediation, crime is personalized as offenders learn the human consequences of their actions, and victims have the opportunity to speak their minds and their feelings to the one who most ought to hear them, contributing to the victim's healing. Victims get answers to haunting questions that only the offender can answer. The most commonly asked questions are "Why did you do this to me? Was this my fault? Could I have prevented this? Were you stalking or watching me?" Victims commonly report a new peace of mind, even when the answers to their questions were worse than they had feared.
Offenders take meaningful responsibility for their actions by mediating a restitution agreement with the victim to restore the victims' losses in whatever ways possible. Restitution may be monetary or symbolic; it may consist of work for the victim, community service or other actions that contribute to a sense of justice between the victim and offender.
VOM programs have been mediating meaningful justice between crime victims and offenders for more than 25 years. There are now more than 300 programs in the United States and Canada and more than 700 in England, Germany, Scandinavia, Eastern Europe, Australia and New Zealand. Remarkably consistent statistics from a cross-section of the North American programs show that about two-thirds of the cases referred resulted in a face-to-face mediation. More than 95 percent of the cases mediated resulted in a written restitution agreement. More than 90 percent of those restitution agreements are completed within one year. In contrast, the rate of payment of court-ordered restitution is typically only from 20 to 30 percent. Recent research has shown that juvenile offenders who participate in VOM subsequently commit fewer and less serious offenses than their counterparts in the traditional juvenile justice system.
Why is there such a great difference in restitution compliance? Offenders seldom experience court-ordered restitution as a moral obligation, but rather as just one more fine being levied against them by an impersonal court system. When the restitution obligation is reached voluntarily and face to face, offenders feel ownership of the agreement and experience it as just.
Careful preparation required
Mediation is not appropriate for every crime, every victim or every offender. Individual, preliminary meetings between mediator and victim, mediator and offender permit careful screening and assessment according to established criteria. Pre-meetings are essential to case development, allowing for thorough preparation of participants to assure safe and successful mediation. In situations as emotionally charged as crimes, it would be difficult -- in many cases impossible -- to bring victims and offenders into dialogue if not for the trust each builds with the mediator.
At their best, mediation sessions focus upon dialogue rather than the restitution agreement (or settlement), facilitating empathy and understanding between victim and offender. Ground rules help assure safety and respect. Victims typically speak first, explaining the impact of the crime and asking questions of the offender. Offenders acknowledge and describe their participation in the offense, usually offering an explanation and/or apology. The victim's losses are discussed. Surprisingly, a dialogue-focused (rather than settlement-driven) approach produces the highest rates of agreement and compliance.
Agreements the victim and offender make together reflect justice that is meaningful to them, not limited by narrow legal definitions. In multi-state and international (United States, Canada and United Kingdom) studies, the overwhelming majority of participants - both victims and offenders - have reported in post-mediation interviews and questionnaires that they obtained a just and satisfying result. Victims who feared re-victimization by the offender before the mediation typically report this fear is now gone.
Forgiveness is not a focus of VOM, but the process provides an open space in which participants may address issues of forgiveness if they wish. Forgiveness is a process, not a goal, and it must occur according to the victim's own timing, if at all. For some victims, forgiveness may never be appropriate. Restorative justice requires an offender who is willing to admit responsibility and remorse to the victim. Where a defendant maintains a not guilty plea in contemplation of a genuine defense - "I didn't do it," self-defense, diminished capacity, etc. - there is no place for mediation until such issues are resolved. Where a defendant maintains a pro forma not guilty plea only to preserve the possibility for plea negotiations, a restorative justice process may be appropriate. (Such a situation may raise issues regarding the confidentiality of the mediation. These concerns are beyond the scope of this article.)
Different concept of neutrality
Neutrality, as understood in the mediation of civil disputes, requires that the mediator will not take sides with either party. Judgments of right and wrong are not within the mediator's role. The mediation of most crime situations, however, presents a unique set of circumstances for a mediator and the concept of neutrality must be different. In the majority of criminal cases, the parties come to VOM as a wronged person and a wrongdoer, with a power imbalance that is appropriate to this relationship. The mediator balances power only to ensure full and meaningful participation by all parties.
Facilitating true accountability in offenders often requires the mediator to help offenders acknowledge their wrong and their responsibility. Until the wrong is acknowledged, many victims are unable to consider meeting with the offender. The mediator is neutral toward the individuals, respecting both as valuable human beings and favoring neither, but the mediator is not neutral regarding the wrong. It is a different model of neutrality that may initially confound civil mediators.
VOM requires specialized training beyond the basic skills of conflict resolution. Mediators are trained to guide the sensitive process of preparing victims and offenders to come face to face. Further advanced training is needed to mediate in crimes involving severe violence. Most victim-offender programs limit their service to juvenile offenses, crimes against property and minor assaults, but a growing number of experienced programs have found that a face-to-face encounter can be invaluable even in heinous crimes.
A number of programs have now mediated violent assaults, including rapes, and mediations have taken place between murderers and the families of their victims. Mediation has been helpful in repairing the lives of surviving family members and the offender in drunk-driving fatalities. In severe crime mediations, case development may take a year or more before the mediation can take place.
VOM may be useful at any stage of the criminal justice process. For young offenders and first- or second-time offenders, mediation may provide diversion from prosecution. In these cases, charges may be dismissed if the offender mediates an agreement with the victim and complies with its terms. After a guilty plea or a conviction, a court may refer an offender to VOM as a part of the sentence or as a term of probation. In cases of severely violent crime, VOM has not been a substitute for a prison sentence, and prison terms have seldom been reduced following mediation. Mediations have even taken place in prison. Impending release of an offender may motivate victims to seek mediation, and mediations have taken place after release from prison.
The power of remorse
As societal values, we want those who offend to 'fess up, make amends and change their ways. Ironically, our adversarial criminal justice system conspires against these values. A defendant's role in the system is to assist his attorney in denying responsibility and avoiding consequences. The defense attorney properly advises the client to "admit nothing, say nothing." The understandable anger and bitterness that crime victims feel is often exacerbated because the defendant's stance (silence, avoidance of eye contact) communicates denial of responsibility and lack of remorse. Sadly, in many cases the defendant has, on advice of counsel, stifled a sincere desire to approach the victim in apology and contrition.
After the criminal justice system has validated such behavior as a defendant's proper role, the defendant may eventually negotiate a guilty plea or be found guilty. The issue of guilt resolved, we as a society now want the offender to shift gears and admit responsibility for the offense. Not surprisingly, such admissions are not often forthcoming.
What can we learn?
What can attorneys and other dispute resolution professionals learn from the philosophy and successes of restorative justice? Our system, which settles most cases without trial, does so with adversarial assumptions as its foundation. Each attorney is expected to maximize her client's win at the expense of the other attorney's client's loss. In the majority of cases, the clients of both attorneys (and often the attorneys, as well) feel like losers in the settlement.
Why is this so? The prescribed adversarial settlement (or plea-bargaining) process, with its complex and confusing morass of pre-trial motions, discovery, seemingly endless continuances and delays, depletes the financial, emotional, physical and spiritual resources of those for whom justice is intended. Too many of those who settle do so not to achieve a just result but to cut their losses and end the misery.
Our system of money damages and financial settlements for losses and injuries has a faulty assumption at its core. We give lip service to the truth that "no amount of money can right this wrong," then we conclude that the only available measure of amends is the dollar! In contrast, a basic principle of restorative justice is that a wrong creates a singular kind of relationship -- an obligation to personally right that wrong. In many cases, financial recompense is essential to righting the wrong. Additionally, for many victims of crimes or torts, an admission of the wrong, a sincere expression of remorse, an acknowledgement of the hurt caused and an apology may be equally important to achieving a just result.
The most important lesson learned from restorative justice practice may be the realization that the key to justice is found not in laws but in the recognition and honoring of human relationships. If the application of restorative justice principles can bring justice and healing to some of the most grievous losses that human beings can suffer, the potential for more effective conflict resolution in other arenas must be considered. If crimes or disputes are not resolved with relationship values guiding the process, it is predictable that all parties may walk away feeling like losers or like victims -- feeling that justice has not been done.
When lawyers are viewed as healers of conflicts, it will be a clear indicator that our justice system has become restorative in its assumptions, goals and priorities. Regrettably, there will always be a need for adversarial processes for resolution of the situations where, sadly, the conflicts cannot be healed restoratively. In these intractable cases, we will employ the adversarial contest as the means for "alternative dispute resolution."
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
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