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Dispute Resolution Programs - Variety In Program Structures And Protocols

mediation offender victim offenders

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.

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