Victim-Offender Mediation Essay

Victim-offender mediation is a process that provides interested victims of primarily property crimes and minor assaults the opportunity to meet the juvenile or adult offenders, in a safe and structured setting, with the goal of holding the offenders directly accountable for their behavior while providing assistance and compensation to the victim. With the assistance of a trained mediator, the victims are able to let the offenders know how the crime affected them, receive answers to questions they may have, and be directly involved in developing a restitution plan for the offenders to be accountable for the losses they incurred. The offenders are able to take direct responsibility for their behavior, learn of the full impact of what they did, and develop a plan for making amends to the person(s) they violated.

Although certain procedural differences and differences in terminology exist in implementing victim-offender mediation in juvenile versus adult courts, the overall approach and procedure is quite similar in both settings. In some programs, cases are referred to victim-offender mediation as a diversion from prosecution, assuming the agreement is successfully completed. In other programs, cases are referred after the court accepts a formal admission of guilt, with the mediation as a condition of probation (if the victim is interested). Some programs receive case referrals at both the diversion and the post-adjudication levels. Officials involved in the juvenile justice system refer most cases, although some programs also receive referrals from the adult criminal justice system. Judges, probation officers, victim advocates, prosecutors, defense attorneys, or police can make referrals to victim-offender mediation programs.

Victim-offender mediation programs were initially referred to as “victim-offender reconciliation programs (VORPs)” in the mid-1970s and 1980s. Some programs still go by the name of VORP. Today, most programs throughout the world identify themselves as victim-offender mediation (VOM). In the United States some programs are also called “victim-offender meetings” or “victim-offender conferences.” Recently, an increasing number of VOM programs have periodically worked with cases involving severe violence, including homicide. This requires advanced training and far more preparation of the parties over many months prior to ever meeting face-to-face. Most programs that focus on victims of severe violence are called “victim offender mediation/dialogue” or simply “victim offender dialogue.” By far the most widespread application of VOM is in property crimes and minor assaults, in thousands of cases in numerous countries throughout the world.

Whereas many other types of mediation are largely settlement driven, victim-offender mediation is primarily dialogue driven, with the emphasis on victim healing, offender accountability, and restoration of losses. Contrary to many other applications of mediation in which the mediator would first meet the parties during the joint mediation session, in most victim-offender mediation programs a very different process occurs, based on a humanistic model of mediation. This model involves reframing the role of the mediator from being settlement driven to facilitating dialogue and mutual aid; scheduling separate pre-mediation sessions with each party; connecting with the parties through building rapport and trust, while not taking sides; identifying the strengths of each party; using a nondirective style of mediation that creates a safe space for dialogue and accessing the strengths of participants; and recognizing and using the power of silence.

Most victim-offender mediation sessions do, in fact, result in a signed restitution agreement. This agreement, however, is secondary to the importance of the initial dialogue between the parties that addresses the emotional and informational needs of victims that are central to their healing and to development of victim empathy in the offender, which can lead to less criminal behavior in the future. Studies consistently find that the restitution agreement is less important to crime victims than the opportunity to talk directly with the offender about how they felt about the crime.

Since its inception in Kitchener, Ontario, with the first victim-offender reconciliation program in 1974, many criminal justice officials have been quite skeptical about victim interest in meeting the offender. Victim-offender mediation is clearly not appropriate for all crime victims. Trained practitioners present it as a voluntary choice to the victim and as voluntary as possible for the offender. Victim-offender mediation now works with many thousands of cases throughout North America, Europe, and other parts of the world. Experience shows that the majority of victims presented with the option of mediation choose to enter the process. A statewide public opinion poll in Minnesota found that 82 percent of a random sample of citizens throughout the state would consider participating in a victim-offender program if they were the victims of a property crime. A multistate study found that, of 280 victims who participated in victim-offender mediation programs in four states, 91 percent felt their participation was totally voluntary.

Victim-offender mediation is the oldest, most widely developed and empirically grounded expression of restorative justice. Restorative justice is a movement that is promoting active involvement of individual victims, victimized communities, families, and offenders in the justice system in ways such that offenders are actively involved in repairing the emotional and physical harm they caused; victims receive far more support, assistance, and input; and positive relationships within communities are strengthened. While restorative justice consists of a wide range of policies and practices and is ultimately a very different way of understanding and responding to the real human impact of crime, the core of restorative justice is anchored in processes that allow for direct dialogue between those affected by crime and those who committed the offense. Examples of the more widely known restorative justice dialogue interventions include victim-offender mediation, family group conferencing, and peacemaking circles.

After a quarter of a century of VOM experience, more than 50 empirical studies in several countries have consistently found it to have a positive impact upon victim and offender satisfaction and perceptions of fairness, higher rates of restitution completion, and significantly lower rates of recidivism. Victim-offender mediation and dialogue programs currently work with many thousands of cases annually through several hundred programs throughout the United States and Canada and more than a thousand programs in other parts of the world, including throughout Europe, and in Australia, New Zealand, Israel, Japan, Russia, South Korea, South Africa, South America, and Ukraine. A recent national survey examining to what degree formal public policy in the United States supported victim-offender mediation found a considerable amount of legislative backing. A total of 29 states had legislation, in one form or another, that addressed victim-offender mediation. Of these, 14 states had specific legislation that spoke to various issues related to the use and development of victim-offender mediation and 15 states had a briefer reference to victim-offender mediation.

The American Bar Association (ABA) has addressed restorative justice through the practice of victim-offender mediation, its most widely used and empirically validated practice. The ABA has played a leadership role over many years in promoting the use of mediation and other forms of alternative dispute resolution in civil court-related conflicts, yet for most of that time remained skeptical and often critical of mediation in criminal court settings. That changed in 1994 when, after a yearlong study, the ABA fully endorsed the practice of victim-offender mediation and dialogue. The association recommended its use in courts throughout the country and provided guidelines for its use and development.

The United Nations, the Council of Europe, and the European Union have been addressing restorative justice issues for a number of years. In 2002, the United Nations adopted the UN Basic Principles on the Use of Restorative Justice Programs in Criminal Matters. These principles encourage the use of restorative justice programming by member states at all stages of the criminal justice process, underscore the voluntary nature of participation in restorative justice procedures, and recommend establishment of standards and safeguards for the practice of restorative justice. The Council of Europe focused more specifically on the restorative use of mediation procedures in criminal matters and adopted a set of recommendations in 1999 to guide member states in using mediation in criminal cases. In 2001, the European Union adopted a policy in support of “penal mediation,” otherwise known as victim-offender mediation, asking its member states (nations) to promote mediation in criminal cases and integrate this practice into their laws.

Another clear expression of the growing U.S. support for restorative justice is the National Organization for Victim Assistance endorsement of “restorative community justice.” During the early years of this movement, most victim advocacy groups were quite skeptical, and some still are; however, a growing number of victim support organizations are actively participating in the restorative justice movement.

Bibliography:

  1. European Forum for Victim Offender Mediation and Restorative Justice. 2000. Victim Offender Mediation in Europe: Making Restorative Justice Work. Leuven, Belgium: Leuven University Press.
  2. Morris, Allison and Gabrielle Maxwell, eds. 2001. Restorative Justice for Juveniles: Conferencing, Mediation & Circles. Portland, OR: Hart.
  3. Umbreit, Mark S. 1994. Victim Meets Offender: The Impact of Restorative Justice and Mediation. Monsey, NY: Criminal Justice Press.
  4. Umbreit, Mark S. 2001. The Handbook of Victim Offender Mediation: An Essential Guide to Practice and Research. San Francisco: Jossey-Bass.
  5. Umbreit, Mark S., Betty Vos, Robert B. Coates, and Katherine A. Brown. 2003. Facing Violence: The Path of Restorative Justice and Dialogue. Monsey, NY: Criminal Justice Press.

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