An Overview of The Restorative Justice and Mediation Collection

The remainder of this bulletin provides a brief summary of each of the documents that constitute The Restorative Justice and Mediation Collection. Information presented includes a brief discussion of each topic, the current research and findings on that topic, implications for the future, and how each restorative justice program improves victim services.

National Survey of Victim-Offender Mediation Programs in the United States

A national survey of VOM programs was conducted in 1996-1997 by the Center for Restorative Justice & Peacemaking at the University of Minnesota School of Social Work in St. Paul. This survey was made possible by a grant from the Office for Victims of Crime.

A total of 289 victim-offender mediation programs were identified through this survey—both large, well-established programs that had been in operation for many years and brand new programs that had yet to receive their first case referral. Of the total, 35 programs were new and had not yet developed enough of a "track record" to provide program data. Extensive phone surveys were conducted with 116 of the established programs. The following themes emerged from the survey findings.

Program Development

• Victim-offender mediation programs, once primarily developed within nonpublic agencies such as community- or religion-based organizations, by 1996 and 1997 had also been developed in probation departments, victim services agencies, prosecuting attorneys' offices, and correctional facilities.
  
  
• Victim-offender mediation programs most frequently identified their primary source of funding as either State or Federal agencies.
  
  
• The primary referral sources to victim-offender mediation programs were probation officers, judges, and prosecutors.
  
  
• The four most common offenses referred to victim-offender mediation programs, in order of frequency, were vandalism, minor assaults, theft, and burglary. Some VOM programs occasionally handled cases of more severe violence: assault with a deadly weapon, assault resulting in bodily harm, sexual assault, domestic violence, negligent homicide, attempted murder, and murder.
  
  
• The most frequent point in the justice process at which the victim-offender mediation session occurred was identified (in 56 percent of programs surveyed) as post-adjudication (either pre-disposition or post-disposition). The mediation occurred at a diversion level (prior to any formal finding of guilt) in 34 percent of the programs surveyed.
  
  
• The most frequently identified locations for VOM sessions were program offices, neighborhood/community centers, conference rooms in libraries, and places of worship.

Mediators

• Throughout the 20-year development of VOM in the United States, considerable emphasis has been put on preparing the parties for the mediation. This has usually involved separate in-person meetings between victim and mediator and between offender and mediator prior to bringing the parties together. The mediator's role at a premediation meeting is to listen to the victim or offender tell his or her story about the crime that occurred and how it affected him or her, explain to both parties what the mediation program is about, and invite the participation of each party. In nearly all of the programs surveyed, the victim and offender were called prior to the mediation session.
  
  
• The three most important tasks of the mediator were, in order of frequency, facilitating dialogue between the victim and the offender, making the parties feel comfortable and safe, and assisting the parties in negotiating a mutually acceptable plan for restitution for the victim.
  
  
• Participants in the survey identified many benefits of comediation, which is widely used in the field of victim-offender mediation. Benefits include greater opportunity for involvement of community volunteers, quality control, responding to issues unique to a specific case, more thorough case processing and debriefing, increased safety, and teamwork.
  
  
• Victim-offender mediation programs frequently trained volunteers from the community to serve as mediators.
  
  
• When asked if victim-offender mediators should be required to complete a legislatively mandated number of hours of VOM training, a majority of respondents to the survey (61 percent) indicated no.

Program Features

• Forty-five percent of the programs surveyed worked exclusively with juvenile offenders and their victims, 9 percent worked exclusively with adult offenders and their victims, and 46 percent worked with both juvenile and adult offenders and their victims.
  
  
• Of cases that were mediated, 87 percent per program resulted in a written restitution agreement and 99 percent of these agreements were successfully completed.
  
  
• All programs in the survey indicated that victim participation in the mediation program was voluntary, and 99 percent indicated that victims can back out of the program at any time. Offender participation in mediation was voluntary in 79 percent of programs, and mandatory in 21 percent of programs.
  
  
• In 65 percent of the programs surveyed, offenders were required to admit their guilt to the offense that led to their referral to the victim-offender mediation program.
  
  
• In 94 percent of the programs surveyed, the victim and offender sit across from each other during the mediation session, allowing for direct eye contact.
  
  
• Following a brief opening statement by the mediators, typical victim-offender mediation sessions begin with the parties each telling their stories—describing what happened and the impact of the crime on their lives.
  
  
• In more than half of the programs surveyed, victims told their story first.
  
  
• In more than half of the programs surveyed, the mediator determined which party should begin the storytelling phase of the mediation; in other programs this decision was made by the program staff, the victim, or the victim and the offender.
  
  
• Only a small percentage (8 percent) of victim-offender mediation programs never had parents of juvenile offenders present during the mediation session. More than half of the programs surveyed always had the parents present.

The findings that emerged from this national survey of victim-offender mediation programs contributed to the development of guidelines for victim-sensitive mediation practices that are documented in the OVC publication Guidelines for Victim-Sensitive Victim-Offender Mediation within The Restorative Justice and Mediation Collection.

Guidelines for Victim-Sensitive Victim-Offender Mediation: Restorative Justice Through Dialogue

Based on the experiences of VOM practitioners in the field of restorative justice over the past 20 years and the results of the national survey of VOM programs, it is becoming increasingly clear that victim-offender mediation can humanize the criminal justice experience for both the victim and the offender. VOM holds offenders directly accountable to the people they have victimized, allows for more active involvement of crime victims and community members (as volunteer mediators and support persons) in the justice process, and may reduce further criminal behavior by offenders. Victim-offender mediation and dialogue is intended to provide a restorative conflict resolution process that actively involves victims and offenders in repairing (to the degree possible) the emotional and material harm caused by crime. This process also provides opportunities for both victims and offenders to discuss offenses and express their feelings, for victims to get answers to their questions, and for victims and offenders to develop mutually acceptable restitution plans that address the harm caused by crime.

This publication lists the underlying principles of VOM and provides fundamental guidelines to follow when conducting a mediation session between victim and offender and suggestions to strengthen victim-offender mediation programs. The following is a list of the guidelines designed to help the mediator ensure the success of a mediation session:

• Ensure victim safety.
  
  
• Screen cases for suitability for the mediation process.
  
  
• Verify that the offender wants to participate in mediation before contacting the victim, to avoid possible revictimization of the victim.
  
  
• Allow the offender to choose whether to participate in the mediation process.
  
  
• Conduct an in-person preconference session with the victim.
  
  
  • Listen carefully to the victim.
    
    
  • Provide information and answer questions about the VOM program.
    
    
  • Discuss risks and benefits of mediation and assist the victim in making an informed decision about whether to participate.
    
    
• Conduct careful, extensive victim preparation.
  
  
  • Ensure that the victim's expectations are realistic.
    
    
  • Assess the victim's losses and needs.
    
    
  • Estimate restitution possibilities.
    
    
• Allow the victim to—
  
  
  • Choose whether to participate in the mediation process.
    
    
  • Select a friend or relative as a support person at the session.
    
    
  • Schedule the mediation session at a convenient time.
    
    
  • Select the mediation site.
    
    
  • Arrange the seating.
    
    
  • Decide who speaks first.
    
    
  • Terminate the session at any time.
    
    
  • Determine the type of restitution.
  
  
  
• Conduct an in-person preconference session with the offender.
  
  
  • Make sure the offender understands the mediation process and its relationship to the judicial system.
    
    
  • Provide information about the offender's rights.
    
    
  • Help the offender decide whether to participate.
    
    
  • Encourage the offender to carefully reflect on the crime, prepare what he or she wishes to say about it, and reflect on the victim's experience with the crime.
    
    
• Conduct careful, extensive offender preparation.
  
  
  • Ensure that the offender's expectations are realistic—that he or she knows an apology is not enough to repair the harm caused by the crime.
    
    
  • Assess the offender's ability to fulfill restitution agreements.
    
    
• Allow the offender to select a friend or relative to be a support person at the VOM session.
  
  
• Use victim-sensitive language that avoids implying judgment or pressuring the victim in any way.
  
  
• Use a humanistic, dialogue-driven model of mediation.
  
  
  • Convey a nonjudgmental, sensitive approach.
    
    
  • Establish a relaxed, positive atmosphere.
    
    
  • Focus on the dialogue between the victim and the offender.
    
    
  • Discuss participant guidelines.
    
    
  • Encourage and be attentive to feedback from participants.
    
    
  • Provide the option of a followup session.
    
    
• Follow up after the mediation session.
  
  
  • Monitor the agreement until completion.
    
    
  • Notify the victim of agreement alteration or completion.
    
    
  • Schedule additional sessions if needed.
    
    
  • Maintain telephone contact with both parties.
    
    
  • Evaluate all mediations and survey participants for satisfaction with the process and its outcome.
    
    
• Train mediators in victim sensitivity.

The above guidelines are grounded in a humanistic approach to mediation that places more emphasis on dialogue than a written settlement. The humanistic approach demands that the mediator create a safe place to foster dialogue between the parties about the emotional and material impact of the crime; written restitution agreements often occur but are secondary to the importance of dialogue between participants. Multisite studies over the years have consistently highlighted the prime importance of direct dialogue that focuses on peacemaking rather than problem solving and resolution. Humanistic mediation has been applied in many settings including community mediation, victim-offender mediation, workplace mediation, family mediation, and peer mediation in schools.

Recommendations

The Guidelines makes the following program development recommendations to strengthen VOM programs and encourage evaluation and collaboration:

• Create an advisory board.
  
  
• Ensure quality control through program evaluation.
  
  
  • Collect responses from participants.
    
    
  • Have the mediator provide a self-evaluation.
    
    
  • Gather feedback from probation officers or victim services personnel who work with the parties involved in mediation.
    
    
• Develop and maintain an extensive and effective network with stakeholders in the community.
  
  
• Maintain high-quality standards for mediators.
  
  
  • Screen applicants seeking training as mediators.
    
    
  • Use mediation training sessions as an additional opportunity to screen mediators.
    
    
  • Maintain quality control through meaningful relationships between program staff and mediators.
    
    
  • Establish regular continuing education to strengthen skills.
    
    
• Explore opportunities for broadening the scope of program services.
  
  
  • Develop a skills-training course for juvenile offenders and their parents.
    
    
  • Improve mediators' ability to serve victims and offenders.
    
    
  • Coordinate with the community to allow offenders to perform community service.
    
    
  • Provide offender rehabilitation opportunities.
    
    
  • Help offenders develop empathy for victims.
    
    
  • Use mediation to foster positive family relationships when offenders leave corrections.

The Guidelines also makes the following recommendations for mediation training to promote high standards for mediators:

• Maximize experiential learning by enhancing role playing.
  
  
  • Demonstrate a realistically performed role play.
    
    
  • Arrange the role-play schedule so that each trainee experiences each role.
    
    
  • Coach trainees on how to play the roles so that they do not overdramatize.
    
    
  • Guide trainees in debriefing the role play so that they can evaluate what worked or did not work and why.
    
    
  • Use experienced mediators to coach role players.
    
    
  • Videotape role plays involving trainees.
    
    
  • Design role plays to address specific problems.
    
    
  • Use input from victims and offenders to create role plays.
    
    
  • Use current cases as the basis for role plays.
    
    
  • Role play atypical parts of the mediation process.
    
    
• Use a multidimensional format to enhance learning.
  
  
  • Incorporate into training the personal experiences, perspectives, and knowledge of trainees.
    
    
  • Consider onsite observations by trainees.
    
    
  • Make training as realistic as possible.
    
    
  • Vary the training format.
    
    
  • Vary the pace of training.
    
    
  • Incorporate experiential learning whenever possible.
    
    
  • Make the training manual user friendly.
    
    
  • Be current and creative; be fresh and interesting; be engaging.
    
    
• Assist trainees in enhancing the potential of the preparation phase.
  
  
  • Encourage trainees to consider the use of outside support persons to help prepare participants for mediation.
    
    
  • Develop materials that victims and offenders can use when preparing for mediation.
    
    
  • Explore with trainees methods for increasing victim and offender participation and interaction.
    
    
  • Guide trainees in how to help victims and offenders determine their goals.

Guidelines for Victim-Sensitive Victim-Offender Mediation is meant to provide a flexible outline that can be adjusted to fit the cultural context of each community and the specific needs of the participating victims, offenders, and support people. The ultimate goal of VOM is to offer a safe place for dialogue between victims and offenders that can offer an opportunity to resolve the impact of crime on their lives.

Multicultural Implications of Restorative Justice: Potential Pitfalls and Dangers

The key to progress toward adaptation of restorative justice frameworks is increased sensitivity to cross-cultural issues and dynamics that affect restorative justice programs and the administration of justice itself. Often the cultural backgrounds of victim, offender, and program staff member are different from one another, sometimes leading to miscommunication, feelings of being misunderstood, or even revictimization.

A great danger when speaking of cross-cultural issues is overgeneralization. There are as many differences within cultures as between cultures. For example, significant customs, communication styles, and shared values distinguish the rural Caucasian from the urban Caucasian, the upper-class African-American from the lower-class African-American, the Mexican Latino from the Puerto Rican Latino, the reservation American Indian from the non-reservation American Indian.

Differences between persons raised or living in unlike cultures are often reflected in communication styles. Those differences are typically as evident in the way points of view are communicated as they are in the message being relayed. Differences can be found in the proximity between conversants—some are more comfortable speaking with less distance between them and others. Body movements such as posture and restlessness can vary from culture to culture. Paralanguage, or vocal cues such as volume of voice, silence, and inflections, can cause miscommunication between persons of different cultural backgrounds. Variations in density of language, such as terse, direct language versus poetic, indirect language, can cause tension and misunderstandings. Victim-offender mediation is more successful when persons working with victims and offenders understand how differences in communication styles can lead to miscommunication, which defeats the restorative justice process.

Cultural differences also exist within larger cultures. Racial identity, socioeconomic status, ethnicity, gender, religion, sexual orientation, rural or urban environment, and many other defining characteristics shape how individuals view the world and their place and chances in that world and affect individuals' propensity to blame the offender, the victim, or the community for crime. Cultural factors also help determine whether participants come to a restorative justice program seeking revenge or repair, desiring to act or to be acted upon, or expecting success or defeat.

Multicultural Implications of Restorative Justice also makes recommendations to prepare restorative justice practitioners to be more effective. Recommended steps include the following:

• Understand one's own behaviors, communication styles, and "cultural baggage."
  
  
• Refrain from making quick assumptions about others.
  
  
• Perceive the participants as individuals within the context of culture. Note how they see their world.
  
  
• Nurture relationships with individuals in an unfamiliar culture or community.
  
  
• Prepare VOM participants by helping them understand the viewpoints and different communication styles of other participants.

Multicultural Implications of Restorative Justice emphasizes increasing awareness of and sensitivity to other cultural values or communication styles as an integral part of achieving success in the restorative justice process. Recommendations are made not to change behaviors but to reduce the tension and potential conflict that might surface without under-standing the differences in world view among the participants.

Family Group Conferencing: Implications for Crime Victims

Family group conferencing (FGC) provides an opportunity for the community of people most affected by a crime—the victim and the offender and the family, friends, and key supporters of both—to talk about the impact of the crime and decide how the offender should be held accountable for the harm he or she caused to the victim. The facilitator contacts the victim and offender to explain the process and invites them to the conference; the facilitator also asks them to identify key members of their support systems who will be invited to participate as well. Participation by all involved is voluntary. The offender must admit to the offense to participate. The parties are brought together by a trained facilitator to discuss how they and others have been harmed by the offense and how that harm might be repaired.

Background

FGC originated in New Zealand as a way to address the failures of traditional juvenile justice and incorporate indigenous Maori values that emphasize the roles of family and community in addressing wrongdoing. Institutionalized into law in 1989, FGC is now the standard way to process juvenile cases in New Zealand. Australia subsequently adopted the concept and has implemented a number of FGC models in various communities. Representatives from both countries have lectured and provided training workshops throughout the United States and Canada. Audiences have ranged from VOM and other restorative justice practitioners to law enforcement officers, school officials, and a growing number of victim advocates.

One Pennsylvania-based organization, REAL JUSTICE, is vigorously promoting a specific police- and school-based model that originated in Wagga Wagga, Australia. REAL JUSTICE has trained hundreds of police officers and school personnel and is working to replicate the Australian model in a number of sites in the country. The Minnesota Legislature funded the development of FGC pilot projects using the REAL JUSTICE model in nine communities in Minnesota's First Judicial District.

FGC is clearly grounded in Australian criminologist Dr. John Braithwaite's theory of "reintegrative shaming" of offenders with its emphasis on changing offender behavior (Braithwaite, 1989). It is also influenced by Silvan Tomkins' affect theory (Tomkins, 1992). Practitioners in the field found that by themselves these theories were not sufficient to address the importance of engaging crime victims in the conferencing process. Restorative justice theory did not play a large part in the origin of FGC, but it was later used to help conceptualize and fine-tune the approach, resulting, for example, in a greater appreciation of the centrality of victims' roles. Now, New Zealand Judge F.W.M. McElrea calls the approach the first truly restorative system institutionalized within a Western legal system.

Similarities to and Differences From Victim-Offender Mediation

FGC seems to be a natural expansion of the dominant model of VOM currently used by most of the more than 300 programs in North America and more than 700 programs in Europe. Like VOM, FGC provides victims an opportunity to express the full impact of the crime upon their lives, receive answers to any lingering questions about the incident, and participate in holding offenders accountable for their actions. Offenders can tell their stories of why the crime occurred and how it has affected their lives.

They are given an opportunity to make things right with the victims—to the degree possible—through some form of compensation. FGC primarily works with juvenile offenders who have committed property crimes, but it has also been used with violent juvenile offenders and adult offenders. This is consistent with the development of VOM in North America over the past 20 years.

Differences between the two programs include who fills the facilitating role and the number of participants. FGC typically uses public officials (police officers, probation officers, school officials) rather than trained volunteers as facilitators. Although these public officials' roles include mediation, they are more broadly defined, combining mediation with other methods of interaction and allowing for more directed facilitation. The FGC process also casts a much wider circle of participants than VOM, although the national survey found that more than 90 percent of VOM programs frequently have parents or other support persons present at the mediation session. Family Group Conferencing lists the advantages and disadvantages of the VOM and FGC models and also provides guiding principles to ensure that intervention for victims, offenders, families, and communities truly reflects restorative justice values.

Family group conferencing provides victims and communities with another way to facilitate recovery from crime. Like any good idea or program, however, it may have unintended consequences. FGC may not be appropriate for every situation; in each case it must be adapted to the specific context and needs of the individuals involved. Some cases might warrant family group conferencing instead of the smaller group involved in victim-offender mediation or vice versa. More serious cases may even require both forms of mediation. Most important, though, is that research and development in the field of restorative justice continue to pursue new ways to provide crime victims with options that effectively serve their needs.

Directory of Victim-Offender Mediation Programs in the United States

The Directory lists victim-offender mediation programs in the United States, alphabetized first by State, then by city, and finally by program name. If no programs are listed for a particular city or State, it means that the Center for Restorative Justice & Peacemaking, the organization that assembled the Directory, has no record of a victim-offender mediation program in that city or State. The Directory is continually updated by the Center. The most current Directory is available online at ssw.che.umn.edu/rjp. You also may order copies by phone at 612-624-4923 or via e-mail at rjp@tlcmail.che.umn.edu.