American Bar Association Endorsement of:
Victim-Offender Mediation/Dialogue Programs(Approved by the ABA House of Delegates, August, 1994)
(reprinted by permission)
BE IT RESOLVED, that the American Bar Association urges federal, state, territorial, and local governments to incorporate publicly or privately operated victim-offender mediation/dialogue programs into their criminal justice processes. Such victim-offender programs should meet the "Victim-Offender Mediation/Dialogue Program Requirements," dated April 1994, appended to and made a part of this Recommendation; and
BE IT FURTHER RESOLVED, that the American Bar Association encourages federal, state, territorial and local governments to support research regarding victim-offender mediation/dialogue programs and the dissemination of those research results.
The first victim-offender mediation/dialogue program was established in Canada in 1974. Since then, victim-offender mediation/dialogue programs have spread to the United States as well as to other countries throughout the world. Over one hundred programs are now in existence in the United States, alone.
Victim-offender mediation/dialogue programs, as their name suggests, are programs in which a criminal offender and the victim of the crime meet together in the presence of a trained mediator-facilitator. During the meeting or meetings, the victim is afforded the opportunity to seek answers to questions about the crime that may have been troubling the victim, such as why the offender chose the victim's home to burglarize. The victim is also given the change to tell the offender about how the crime has affected the victim. It is during the portion of the meeting that the offender will often, for the first time, realize the level of emotional trauma caused by his or her criminal conduct. During the meeting, the offender also discusses his or her views about the crime, and this discussion will often culminate in an expression of remorse for the harm that the offender has caused.
The victim and offender then attempt to reach an agreement to redress the harm caused by the offender's criminal conduct. The agreement may require the offender to pay restitution to the victim, to perform work for the victim, to perform community service work, and/or to participate in programs, such as a substance abuse treatment program. Through the implementation of the agreement, which holds an offender accountable for the harm caused by his or her criminal behavior, a victim-offender mediation/dialogue program can serve as an integral component in a comprehensive corrections system, helping to avoid the high human and economic costs of unnecessary incarceration.
One of the chief benefits of victim-offender mediation/dialogue programs is that they humanize the criminal justice process. By bringing criminal offenders together face-to-face with their victims, it becomes more difficult for the offenders to rationalize their criminal behavior. As they face the individual that they have victimized, the harm caused by their crime is also no longer an abstraction but very real.
Mediation/dialogue sessions also bring a human face to the person who is otherwise abstractly and impersonally known as "the criminal." During such sessions, victims may gain a better understanding of who the offenders are and of the circumstances that may have contributed to their criminal behavior.
Research results have confirmed the many benefits of victim-offender mediation/dialogue programs. See, e.g. Mark S. Umbreit & Robert B. Coates, Victim Offender Mediation: An Analysis of Programs in Four States of the U.S. (1992); Jim Dignan, Repairing the Damage: An Evaluation of an Experimental Adult Reparation Scheme in Lettering, Northamptonshire (1990); Tony F. Marshall & Susan Merry, Crime and Accountability; Victim Offender Mediation in Practice (1990); Robert B. Coates & John Gehm, An Empirical Assessment in Mediations and Criminal Justice (Martin Wright & Burt Galaway eds. 1989); Linda Perry, et. al., Mediation Services: An Evaluation (1987). Victims who participate in these programs generally report high levels of satisfaction with them, as do participating offenders. Both victims and offenders report being impressed with their fairness, and yet offenders also perceive these program as being demanding responses to their crimes, particularly because of the discomfort that attends facing real-life consequences of the criminal actions. Participation in victim-offender mediation/dialogue programs significantly increases the likelihood that offenders will pay restitution to their victims as compared to offenders who are simply ordered by the court to pay restitution, and participation often eliminates victims' anxiety and fears that their offender will victimize them again in the future. Perhaps one of the best indicators of client satisfaction with victim-offender mediation/dialogue programs is the fact that virtually all victims and offenders who have participated in such programs say that they would participate again if given the choice.
Because of the benefits of victim-offender mediation/dialogue programs recounted above, the American Bar Association recommends that federal, state, territorial and local governments take steps to include such programs as part of their criminal justice processes. There are, however, some important caveats to this recommendation, for unless these programs meet certain requirements, the programs' very purposes will be undermined.
While the recommendation's appended list of requirements is not all-inclusive, several of the requirements are particularly critical to ensuring the efficacy of the program. Particular attention should be given to appended Program Requirements 1, 5, 8 and 13. For example, it is imperative that victim participation in these programs be truly voluntary. Badgering victims into participating in these programs would not only conflict with their philosophical underpinnings but would exacerbate the loss of control already felt by people who have been victimized by crimes. Additionally, it is important that the participation of offenders in these programs is also voluntary. Offenders should therefore not be penalized by any criminal justice officials, including probation, parole, and correctional officials, because of a decision not to participate in such programs.
It is also important that properly trained mediator-facilitators screen prospective participants to ensure that the mediation/dialogue process only involves individuals for whom it is suitable. All screening should occur on a case-by-case basis; it is inappropriate to broadly prohibit general categories of victims from participating in and reaping the benefits of the mediation/dialogue process. However, screening would, for example, rule out mediation in a case where the level of hostility felt by one or both parties is so high as to make participation in a mediation session unproductive and unwise. Screening would also rule out mediation in most cases involving domestic violence.
Special care must particularly be taken in those cases where victims of severe violent crimes request a mediation session. Only experienced mediator-facilitators who have received advanced training should handle such highly sensitive cases. These specialized mediator-facilitators should do extensive prepatory work with both the victim and the offender in multiple separate meetings before any mediation session occurs, and they should also coordinate their work with any psychotherapist that might be working with the parties.
Finally, it should be noted that victim-offender mediation/dialogue programs should be operated in conformance with standards already adopted by the American Bar Association, including the standards that govern pretrial diversion. While many victim-offender mediation/dialogue programs bring victims and offenders together only following a criminal conviction, some are used as a form of pretrial diversion. Such use of victim-offender mediation/dialogue programs for purposes of diverting from prosecution individuals against whom criminal charges are pending should only occur, as required by ABA standards, upon motion of the prosecuting attorney. See ABA Standards for Criminal Justice, Pretrial Release, Standard 10-6.1(a)(1985). In addition, the offender must consent in writing, or orally in open court, to such diversion. See id., Standard 10-6.1(c). If the offender is represented by an attorney, such consent should be given only after the offender has had the chance to discuss with the attorney the advisability of participating in the victim-offender mediation/dialogue program. The consent of the victim should also be obtained in writing, or orally in open court, to ensure that the victim fully understands that the offender's pretrial participation in a victim-offender mediation/dialogue program may make it possible for the offender to avoid a criminal conviction.
Victim-offender mediation/dialogue programs that meet the parameters set forth in this recommendation will not be a panacea, solving all of the problems of the criminal justice system, but they will help improve the functioning of that system. One of the premises of victim-offender mediation/dialogue programs is that offenders should be held accountable for the harm that their criminal conduct has caused individuals and the community. Bringing into the criminal justice process this much-needed and often absent emphasis on accountability into the criminal justice process can, in the long run, only rebound to the benefit of us all.
Randolph N. Stone
Criminal Justice Section
Victim-Offender Mediation/Dialogue Program Requirements:
- Participation in a program by both the offender and victim must be voluntary.
- Program goals are specified in writing and procedures are established to meet those goals.
- A plan exists for ongoing evaluation and review of goals and the steps taken to reach such goals.
- Before participating in such programs, victims and offenders are appropriately screened on a case-by-case basis, are fully informed orally and in writing about the mediation/dialogue process, procedures and goals, and are specifically told that their participation in the process is voluntary.
- Refusal to participate in a program in no way adversely affects an offender, and procedural safeguards are established to ensure that there are no systemic negative repercussions because of an offender's refusal to participate in the program.
- A face-to-face meeting is encouraged.
- When agreements are reached between victims and offenders, which may include restitution, a process is established to monitor and follow up on the agreements reached.
- The statements made by victims and offenders and documents and other materials produced during the mediation/dialogue process are inadmissible in criminal or civil court proceedings.
- Properly trained mediator-facilitators are used in the mediation/dialogue process.
- The programs are adequately funded and staffed.
- Mediator-facilitators are selected from a cross-section of the community to ensure that they reflect the diversity of their community in terms of race, ethnicity and gender.
- Criminal justice professionals and the public are educated about these programs, and these programs are fully integrated with other components of the criminal justice system.
- Participation in a programs that occurs prior to an adjudication of guilt take place only with the consent of the prosecutor and with the victim's and offender's informed consent, obtained in writing, or orally in court. If the offender is represented by an attorney, the offender's consent should be given only after the offender has had the chance to discuss with the attorney the advisability of participating in the victim-offender mediation/dialogue program. Participation in a program that occurs after an adjudication of guilt take place only after notification to the prosecutor and defense attorney, if any.
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.
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Information and Resource Center
2826 Azalea Hills Dr. Charlotte, NC 28262
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