Dispute Resolution Programs

Victim-offender mediation transforms the criminal justice paradigm by placing victims at the center, rather than on the periphery, of the criminal process. Generally this is viewed as a positive development—one that increases the efficiency of the system and the quality of outcomes for both victims and offenders. Mediation programs are nonetheless controversial because they can transfer the power to resolve all or part of a criminal case from the state to a private party—the victim. Placing such control in the hands of the victim is problematic. Critics of such programs argue that without careful monitoring and administration, victim-offender mediation programs could disserve the interests of victims, offenders, and the state.

Victims could suffer in mediation if the programs place undue stress on forgiveness and reconciliation before victims have the vindication of a public finding that the offender is guilty. If mediators too easily assume that victims' outrage and loss can be expressed and resolved in the course of a few hours with their offenders, mediation might impede, rather than facilitate, victims' healing. This would undercut one of the central goals of such programs.

Victim-offender mediation could disserve offenders in three ways: by using screening criteria that are not clearly related to the goals of the program (thus permitting articulate offenders to participate rather than those who are sincerely remorseful); by eliminating procedural protections such as the right to counsel or rules of evidence; and by using the leverage of pending criminal process to gain advantages for the victim, a private party. If offenders believe that they will be worse off in the ordinary criminal justice system should they fail to reach a mediated agreement satisfactory to their victims, the offenders may have an unduly strong incentive to mediate and reach agreement, no matter what the psychic or monetary cost.

An underlying assumption in many victim-offender mediation programs is that crimes are private disputes that fracture relationships between individuals; the state's interest in these disputes is minimal. The structure of many victim-offender mediation programs belies this assumption, however, because the mediation occurs before a backdrop of state involvement and coercion. Victims of crime negotiate not only with their own individual bargaining strength, but also with the threat of enhanced state punishment should the parties fail to reach agreement. The victim can appropriate some of the state's leverage over the offender if the victim and the offender know that the offender is more likely to be prosecuted or incarcerated if the victim is not satisfied with the mediation.

Moreover, despite proponents' claims that victim-offender mediation can resolve criminal cases according to the substantive standards of the "community" in which the crime occurred, such a community may be difficult to identify, apart from the state itself. When centralized rules of criminal law are rejected in the name of a "community" that may not even exist, any standard may fill the vacuum to resolve individual cases. Often, success is measured by the victim's satisfaction with the outcome rather than consistency with substantive legal rules. Focusing on the end to be obtained (the parties' ability to reach agreement), victim-offender mediation programs may lose sight of important procedural norms, resulting in a lack of counsel for the offender, or coercion prior to and during the mediation.

To maintain the integrity of the criminal justice system as well as the mediation process, some critics have called for a decoupling of mediation from the court system: the success or failure of the mediation should have no impact on the offender's prosecution or punishment. This recommendation turns, to some degree, on empiricism about the deterrent and rehabilitative effects of victim-offender mediation. To the extent that mediation is shown to reduce criminal activity generally or among offender participants, a stronger case can be made that these programs are consistent with, and actually promote, the traditional goals of the criminal justice system. In that case, conditioning prosecution on mediation and its results would be appropriate.