Volume 6, Number 1 : Summer 1995
A Publication of the Victim-Offender Mediation Association
Comparing Victim-Offender Mediation Program Modelsby Marty Price, J.D.
This article discusses the characteristics of the most commonly used program models, looking at some of their advantages and disadvantages and reaching conclusions about the best uses for each. The reader should keep in mind that, although this article discusses only two program models in detail, there are, in fact, many variations of these approaches. (One of the strengths of community-based justice programs is the potential for creative and flexible solutions that respond to the unique needs and circumstances of a community.) My intention is to provide analysis and opinion which will stimulate thinking and discussion about how we can best accomplish our mission in this work.
The program model which is used by most victim-offender mediation programs, sometimes referred to as the "classical Victim Offender Reconciliation Program (VORP) model," is a "social work case development" approach. This model involves all parties in substantial preparatory work before victim and offender come face to face for the actual mediation session. Upon referral of the case, there is a threshold screening by the program director or case manager to assure that the case meets the program's intake criteria. Victims and offenders have at least one preliminary meeting with the mediator. These preliminary meetings, which are the hallmark of this model, have several purposes and goals, which are outlined below.
Providing Information and Obtaining Voluntary ParticipationPerhaps the most common initial reaction by both victims and offenders (whether spoken or unspoken) to the suggestion of a victim-offender meeting is, "Why would anybody want to do that?" Getting voluntary participation in victim-offender mediation requires the mediator to respond to the needs and concerns of the prospective participant, addressing questions such as: What is the process and what is its purpose? How does it work? How has it helped others? How might it help me? What costs and risks are involved?
Assessing the Appropriateness of the CaseThe mediator and program staff must determine whether the offense and the parties are appropriate for mediation. The mediator learns what happened from the people involved, whose stories often differ greatly from the police narrative or other referral information. As the purpose and process of victim-offender mediation are explained, the parties' questions answered and their concerns addressed, the mediator can assess the parties' motivations and their ability to communicate verbally. A victim who is too intimidated to speak to the offender is probably not a good candidate for mediation; neither is a victim who seeks only to "bash" the offender.
An offender who does not admit to the offense, (at least partially or on some level) is not suitable for victim-offender mediation. Such a person is an "accused" or a "defendant," but not an "offender." If guilt has not been admitted or adjudicated and a defense is anticipated, an accused is probably ill advised to mediate, out of concern for avoiding self-incrimination. From a victim's perspective, a confrontation with an accused who denies the offense and/or blames the victim, is often experienced as a "re-victimization" or "secondary victimization." Equally re-victimizing is an offender who shows no expression of remorse or regret. To protect victims, such offenders should not be invited to mediate. Obviously, mediation should not take place with an offender who seems predisposed to threaten, assault or retaliate.
The physical and emotional safety of the victim must be an overriding concern, not only for obvious reasons, but also to protect the program itself. Some victim-offender programs have conducted confrontations where re-victimizations have allegedly taken place, and where such situations might have been avoided by more thorough screening and case assessment. The "public image damage" suffered by those programs has been substantial. As a result, some prosecutors' offices and victim advocacy organizations have come to view mediation as inimicable to the interests of crime victims and they actively oppose victims' participation in mediation. Recognizing that human beings are essentially unpredictable, we must acknowledge that it is not possible to completely eliminate all risk of re-victimization. Our most skilled and conscientious efforts notwithstanding, a re-victimization may occur. If that happens, it may be crucial to the life of the program to be able to show that all appropriate precautions were taken, that the case was properly screened and assessed, and that, therefore, the re-victimization could not have been anticipated and prevented.
Establishing Relationship-Safety, Trust and RapportOften, offenders and victims of their crimes are unable to even imagine talking with each other (or wanting to) until a victim-offender mediator offers such an opportunity, in a way that makes the prospect seem desirable and safe. In the social work case development model, the mediation process is said to be "relationship-driven." The mediator establishes a trusting and non-judgmental relationship between himself and the victim and between himself and the offender. With all parties trusting that the mediator will insure that they are honored and respected in the mediation process, both victim and offender are more likely to be honest and open with each other. Their trust in the mediator is a prerequisite to a meeting in which they may be able to let go of their fear and defensiveness, becoming vulnerable and real, and opening the way to understanding, empathy and healing between them.
Preparation for the ConfrontationThe social work case development model recognizes that few people are prepared for a victim-offender confrontation. It is the mediator's job to assist the participants in identifying their needs. They may need some other professional assistance before they can proceed in a way that will be helpful. A victim may need to address issues of trauma with a therapist. An offender who is in denial about substance abuse may benefit from a drug evaluation, before proceeding to face the victim. Most victims find it helpful to have a mediator assist them in considering the effects of the offense and what might meaningfully restore their losses. Most offenders benefit from exploring how to best express their feelings about the offense. Typically, victim-offender confrontations are most beneficial when the participants enter the mediation room having completed self-help homework assignments focused upon what they want to get from, and contribute to, the mediation process.
A thoughtful process of preparing victims and offenders for mediation may also lead a participant to conclude that mediation would not be beneficial or appropriate. Fully informed consent is essential for mediation to be truly voluntary. The process of preparing participants is equally valuable when it leads to a considered decision not to mediate.
The social work case development model or "classical VORP model" of mediation can be a lengthy process, and it requires a substantial commitment of time by the participants, program staff and volunteer mediators. Some victims or offenders, desiring a "quick fix," decline participation because it appears that too much time, attention or energy will be required of them. Sometimes victims feel, understandably, that having already suffered losses, including their valuable time, "why should I give up still more of my time because of this crime? I don't want to attend two or more meetings!" Some prospective volunteer mediators, particularly those with experience in court-based mediation programs, consider the amount of time that a volunteer must be willing to devote to the process of case development and conclude that they would prefer to do their volunteering in a program where they can just show up, introduce and seat the parties, and mediate.
The "Pure Mediation" ModelThe above considerations and philosophical considerations, as well, have led some victim-offender mediation programs to consider other approaches that might be less time-demanding and ultimately, less costly per case. One urban VORP uses an approach which was adapted from small claims court mediation programs, where a large volume of cases must be handled expeditiously. Here, after a case has been referred to VORP by the Juvenile Court, a letter is sent to the victim(s) and the offender(s). The letter tells them of the referral, gives a brief explanation of the victim-offender mediation process and its purpose, and the time assigned for mediation at the juvenile court facility. The letter requests a telephone confirmation that they will appear. Staff telephone those who do not respond, whenever possible and some limited case screening may take place by phone. There is no "case development" in the sense of the classical VORP model. Mediators have no contact with victims and offenders until they appear for the mediation and there are no preliminary meetings. Participants are assigned to a mediator and a mediation room, then victims come face-to-face with offenders without any advance preparation by the mediator. This may be described as a "pure mediation" model (just mediation, no social work.)
Proponents of the "pure mediation" approach have expressed concern that contact with the mediator by the individual parties, prior to the mediation, is likely to create undesirable alliances with the mediator or in other ways compromise the mediator's impartiality or appearance thereof. "Pure mediation" model advocates suggest that since the object of mediation is to resolve conflict by facilitating communication between the parties, fostering a relationship between the participants and the mediator is inappropriate. ("We want to get them talking to each other-not the mediator.") The creation of safety for the participants through building trust and rapport with the mediator, a primary goal of a the case development approach is not, in this model, viewed as a part of the criminal mediation process.
Mark Umbreit, Ph.D., a prominent researcher and pioneer in the field of victim-offender mediation, has called this a "settlement-driven" focus, as compared to the "relationship-driven" focus of a social work case development approach. "Settlement-driven" mediation, which is very effective in creating efficient settlements between small claims court litigants, also works to fashion restitution contracts between crime victims and offenders. It is not well-suited to addressing the higher values that are an integral part of the traditional VORP mission--healing the effects of crime and reforming offenders. Such transformative effects, well-documented and regularly occurring out of the classical VORP process, are far less likely to be fostered by a circumscribed settlement conference approach to victim-offender confrontation.
Notable are two other problems with the "pure mediation" approach to victim-offender mediation. The first is that a letter from the program office, or even a phone call, is not nearly as effective in getting people to come to mediation as is a visit from a volunteer mediator. Programs that use the case development model typically mediate about two-thirds to three-quarters of the cases referred; participants rarely fail to appear for mediation after having individual meetings with the mediator. Programs that do not conduct preliminary meetings with victims and offenders typically experience about a 50% "no-show" rate for scheduled mediations. Thus, a substantial number of people who show up, ready and willing to mediate, are inconvenienced and leave with feelings of anger and disappointment, which may be focused upon the program or the justice system. For victims, it may be a re-victimization-this time, by the victim-offender program.
Perhaps more important than the "no-show" concern is the fact that only very limited screening or case assessment (if any) is possible without the opportunity to meet with the prospective participants prior to the mediation meeting. Without adequate screening and case assessment, there is substantial risk that a volunteer mediator will conduct a victim-offender confrontation that should not take place at all, or one that the mediator will not be prepared to handle.
My view is that a "settlement-driven/pure mediation" model may be appropriate for some limited categories of relatively minor offenses against property, in which the victim reports no feeling of personal violation-that the harm done was solely economic. In such cases, where the victim's interests may be best met simply by obtaining restitution as expeditiously as possible, a "round-'em up, sit 'em down and mediate" approach may actually be best. Shoplifting cases are one category of offense in which victims sometimes express such limited needs. Almost all offenses against a person and most offenses against a person's property are accompanied by strong reactions of violation, loss of safety, fear or outrage. One of the highest values of victim-offender mediation is its emphasis upon providing the victim with a safe and supportive process in which to explore, express and resolve those feelings. For most victims, the case development/case preparation process provides such a context in a way that "quick mediation" cannot. And when the context does not facilitate the full expression of the effects suffered by the victim, the potential for the confrontation to have a substantial impact on the offender is greatly reduced.
The Humanistic Mediation ModelDr. Mark Umbreit has proposed a new model of victim-offender mediation, which he calls the "humanistic mediation model." In Chapter 10 of his book, Mediating Interpersonal Conflicts: A Pathway to Peace, he suggests:
"People concerned about promoting social harmony and building more peaceful communities can play an active role in pushing the field of mediation to a higher plane through advocacy of a humanistic model of mediation. Instead of being settlement driven, a humanistic mediation model is driven by facilitating a journey of the heart through a process of dialogue and mutual aid between people in conflict. The emphasis is upon the mediator empowering each individual to own the conflict, discuss its full impact with each other, to assist each other in determining the most suitable resolution, which may or may not include a written agreement, and to recognize each other's common humanity, despite the conflict."I am committed to fostering the evolution of victim-offender mediation toward such a model of humanistic mediation. It is important to note that this higher plane of mediation requires additional mediator training, which is beyond the scope of this article. Dr. Umbreit's book discusses training characteristics and requirements in detail.
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.
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