Criminal Mediation
In some cases, the criminal justice system is too rigid and limited in what solutions it can provide. The final option in any criminal case is a trial, where the jury has a binary choice—guilt or innocence. Real world situations, however, are usually much more nuanced. Where the law defines one person as the victim and the other side as the offender, there are times when both parties are at fault or contributed to the problem. Oftentimes, the best solution to a case isn’t an all-or-nothing trial decided by strangers.
Additionally, in the formal criminal justice process, the victim’s voice is often forgotten and the communication between victim and offender is restricted or non-existent. This limits the opportunity for all parties to heal and find reasonable, creative, and consensus solutions, sometimes making cases more expensive and difficult than they should be.
Criminal mediation allows for parties to resolve cases outside of the traditional trial system. Impartial mediators talk through the issues with each side, make recommendations, and help participants reach positive outcomes in which all sides feel heard about a case. Mediation agreements allow for creative solutions that take all factors into account, with agreed upon solutions having a better chance of addressing underlying causes and concerns. Mediation is better-equipped to address nuanced situations using restorative justice principles, to the benefit of both parties and at a lower cost to the courts.
Why criminal mediation?
Lowers state costs associated with traditional court proceedings
Cases that would ordinarily take one to two years of slow litigation to move forward are able to be resolved in a matter of hours through a mediation conference in which both the victim and the defendant get the opportunity to feel heard about the case.
Defendants would presumptively pay for costs associated with mediation, although this could be negotiated as part of a mediation agreement.
Defendants resolving cases via mediation spend less time incarcerated before sentencing than those going through court proceedings (Hansen & Umbreit, 2018).
Implements restorative justice principles by crafting a victim-centered process
Mediation facilitates a process in which victims have a say in how an offender can repair the harm caused by their offense.
Many alleged victims, particularly those with a preexisting relationship with a defendant, do not wish a case to move forward in court and would prefer to resolve a charge with the defendant. This is especially the case in which alleged victims and their families rely on an offender’s salary for support.
Victims reported satisfaction with mediation consistently at 80% or above, viewing outcomes as more fair and just (Hansen & Umbreit, 2018; Mazur et al., 2020).
Victims are more likely to receive reparations, financial and otherwise, going through the mediation process than through the traditional court process (Mazur et al., 2020).
Lowers reoffense rates and allows for a greater possibility of reconciliation
Multiple studies have demonstrated that offenders who resolve their cases via victim-offender mediation are less likely to reoffend, with recidivism rates down anywhere from 30-50% compared to those sentenced in court (Jonas et al., 2022; Hansen & Umbreit, 2018).
The likelihood of reoffending is reduced when the time in between committing a crime and serving a sentence for that crime is reduced. By expediting cases, recidivism rates will decrease.
Mediation is particularly appropriate in cases involving parties that are related or cohabitate, allowing them to work through difficult issues with the oversight of a trained third-party.
Offenders participating in victim-offender mediation reported feeling increased regret and moral failure for their actions, which translated into greater empathy for victims and an increased willingness to take responsibility for their offense (Jonas et al., 2022; Hansen & Umbreit, 2018).
Precedent for criminal mediation exists at the state, national, and global levels
Victim-offender dialogue programs are already in use in Utah’s juvenile courts, with support provided by the Alternative Dispute Resolution Department (ADR).
There are over 300 criminal mediation programs in the U.S., including programs in Idaho, Delaware, Kentucky, Maryland, New Hampshire, and North Carolina (Hansen & Umbreit, 2018).
Victim-offender mediation is used in justice systems on nearly every continent, including North and South America, Eastern and Western Europe, Africa, and Oceania (Hansen & Umbreit, 2018).