Mediation in Criminal Cases

While many people have heard of or have some limited experience with mediation, few know of its use in criminal cases.

               One major use of mediation in criminal cases began as an experiment in Kitchener, Ontario during the early 1970’s when a probation officer convinced a judge that youths convicted of vandalism should meet with the victims of their crimes. This moment is credited as the beginning of what is now known as Victim-Offender Mediation (or Victim-Offender Reconciliation Programs).

               In the U.S. most Victim Offender Mediation programs are voluntary, offered to youthful first offenders and are conducted post-conviction. The mediator first meets with the parties to determine if the victim will not be further harmed by a meeting with the offender and that both parties are psychologically capable of constructively participating in the process.

In the face-to-face meeting the victim has the opportunity to speak about the experience of victimization and loss. The offender has the opportunity to express remorse and a chance to repair the injury, which could be any number of actions, such as restitution and in-kind services. With most Victim Offender Mediation programs in the U.S. the offender does not benefit from participating in the process by reduced sentence or other penalty, but the victims often feel that the mediation has served as a healing process for them.

               I was once describing these programs in an undergraduate class. I noticed that one student from Canada had a smile on his face during my description. I asked him if he had anything to add. He did: He volunteered that he had participated in Victim Offender Mediation as a youth. He had shot out his neighbors’ windows with a pellet gun. He said that at the time he felt the experience was a “joke.” But he said that years later he recognized that the experience had been one of the most formative experiences of his teenage years as it taught him that actions have consequences and that he had to take responsibility for them.

               Victim Offender Mediation has been used in a variety of cases including manslaughter. It is not appropriate for all offenders nor all victims. But in carefully selected cases victims, offenders and society overall benefits.

               Some states are now using mediation in criminal proceedings before conviction. Both misdemeanor and felony cases are now mediated when the court determines issues such as sentencing options, restitution, admissibility of evidence and others could be effectively handled using this approach. In these cases, a neutral mediator convenes a session with the prosecuting attorney and the defendant to resolve issues that could expedite the trial or resolution of the case.  

               Mediation is a very flexible process. The same process that can aid victims and offenders can aid family members and co-workers with disputes as well.