Victim-Offender Mediation and Violent Crimes: On the Way to Justice

By: Ilyssa Wellikoff

Volume 5.1

I. INTRODUCTION

            In the latter part of the last century, American society began to question whether the criminal judicial system faltered in creating a complete system of justice. One significant concern was that the criminal justice system’s central focus on punishment and retribution did not satisfy the overall needs of society.[2] Many argued that the system overlooked a crucial element—the victim.[3] In our current criminal justice system, the victim has nearly no role or control in the judicial process and is frequently left feeling unsatisfied.[4] In addition, the courts often fail to create a sense of security that individuals, as well as communities, so desire.[5] The recognition of these flaws in our criminal judicial system creates an impetus to find other forms of justice.

Restorative justice programs are “an alternative approach to criminal justice that began in response to what proponents viewed as the ineffectiveness of our current system.”[6] Justice, in the criminal judicial system, “determines blame and administers pain in a contest between the offender and the State directed by systematic rules.”[7] Nowhere in this scheme is the victim even mentioned. Restorative justice, in contrast, focuses on the needs of the victim and provides a forum where the victim’s participation is essential in order to achieve justice.[8]

Restorative justice programs have been implemented in almost every state and are composed of a variety of methods, including victim-offender mediation.[9] Victim-offender mediation, which developed in the United States around 1970,[10] has obtained a reputation as being an effective and viable form of restorative justice.[11] This program unites victims with their offenders in order to facilitate dialogue that will aid in both the victim’s and the offender’s healing.[12]

Victim-offender mediation often handles less serious crimes such as misdemeanors, juvenile crimes, and property crimes.[13] However, with the advent and acceptance of the restorative justice movement and the success of victim-offender mediation, many programs are beginning to extend victim-offender mediation to more serious and violent crimes.[14] These serious and violent crimes include homicide, sexual assault, vehicular homicide, and armed robbery.[15]

This Note will discuss the need for an alternative method within the criminal justice system, such as victim-offender mediation, and will discuss the benefits and implications of extending victim-offender mediation to serious and violent crimes. The first part of this Note will explain the premise and purpose of victim-offender mediation. The Note will detail victim-offender mediation’s roots in restorative justice and the various types of victim-offender mediation programs currently in place. The second part of this Note will address the efficacy of victim-offender mediation programs, highlighting the program’s overall benefits and shortcomings. The Note will then address the criminal judicial system’s role in victim-offender mediation and discuss the consequences and ethical considerations of mediating serious and violent crimes.

Ultimately, this Note will conclude that since victim-offender mediation has had great success in handling less serious crimes and has proven to be an effective part of the judicial system, violent crimes would also be appropriate for victim-offender mediation. The benefits attributed to mediating less violent and less serious crimes only further validate the importance of handling violent and serious crimes in victim-offender mediation. This Note does not propose that victim-offender mediation should act as a substitute for judicial criminal proceedings in serious and violent crimes. Rather, the principle should be to provide a separate forum for the victims, themselves, to assert their own claims against their offender.

II. AN OVERVIEW OF VICTIM OFFENDER MEDIATION

A. Victim-Offender Mediation’s Roots in Restorative Justice

The criminal justice system continues to undergo reformation to incorporate the principles of restorative justice. The restorative justice approach emphasizes the needs of victims, which have previously been disregarded.[16] In addition, restorative justice includes the community as an additional stakeholder in the crime.[17] Restorative justice recognizes that crimes impact communities as well as victims, and in order to “heal the effects of crime,” a community’s need to feel secure must be addressed.[18]

The traditional criminal justice process has focused on placing blame on an accused offender and punishing that offender in order to obtain retribution.[19] The State effectuates justice by taking over the criminal process.[20] Under this traditional judicial process, “t he crime is against ‘the State’ and state interests drive the process of doing justice. Individual crime victims are left on the sidelines of justice, with little or no input.”[21] In doing so, the victim and community actually affected by the crime are left as mere bystanders.[22] The system has even gone so far as omitting the victim’s name in the judicial action’s heading. As Price, describes:

In our system, crime is defined as an act against the State (e.g., State v. John Jones), rather than an act against individuals and their community . . . Victims may be viewed, at worst, as impediments to the prosecutorial process—at best, as valuable witnesses for the prosecution’s State case. Only the most progressive prosecutor’s offices view crime victims as their clients and prioritize the needs of the victim.[23]

Restorative justice, on the other hand, recognizes that punishment is not the key to effectuating justice.[24] Instead, restorative justice programs focus on the needs of the victim, offender, and community:

Restorative justice emphasizes the importance of evaluating the role of crime victims and community members, holding offenders directly accountable to the people they violate, restoring the emotional and material losses of victims, and providing a range of opportunities for dialogue, negotiation, and problem solving, whenever possible, which can lead to a greater sense of community safety, conflict resolution, and closure for all involved.[25]

In sum, restorative justice programs have four core goals.[26] First, restorative justice programs create an opportunity for victims, offenders, and communities to discuss the effects of the crime.[27] Second, offenders are expected to rectify the harms they have inflicted.[28] Third, restorative justice seeks to reintegrate victims and offenders into the community as “whole and contributing members of society.”[29] The fourth core goal of restorative justice is to provide an arena that allows affected parties to participate in determining the outcome.[30] Restorative justice programs, including victim-offender mediation, developed from this notion and have slowly evolved from “relative obscurity” to global recognition.[31]

B. Victim-Offender Mediation Programs

            Victim-offender mediation began operating as a form of restorative justice that is primarily focused on bringing together victims and offenders and making them a part of the criminal justice system.[32] In a safe and structured setting, victims are able to question their offender and discuss how they were affected by the crime, with the goal of holding the offender accountable for his actions.[33]

The first victim-offender mediation program originated in Kitchener, Ontario.[34] The mediation involved two boys who destroyed property during a drunken rampage.[35] Since the boys had no prior offenses, their probation officer recommended that, in lieu of punishment, the juveniles face their victims; the judge agreed.[36] The boys went to the homes of their victims, confessed to their criminal activity, and worked out restitution agreements with each household.[37] Within three months the boys had completed their agreements and paid back all the losses.[38] This successful approach to justice allowed the offenders to experience “a kind of meaningful accountability that punishment could not provide.”[39] Thus, this affirmative episode led to the creation of the first North American victim-offender mediation/reconciliation program.[40]

Victim-offender mediation may be used at any part of the judicial process, [41] and therefore, it will “not interrupt the criminal justice process.”[42] Victims may either choose to participate in victim-offender mediation instead of pressing civil charges against their offender, or as an adjunct to the traditional criminal judicial processes.[43] The State, however, may still pursue its own criminal charges and prosecution.[44]

Victim-offender mediation typically follows a four-step process, which differs from the typical mediation method.[45] In a typical mediation setting, two parties come together to resolve a dispute, and the parties work to reach a settlement based on the assumption that each contributed to the conflict.[46] However, victim-offender mediation is a distinct form of mediation, which begins with an innocent victim and his offender, who has already admitted to committing the crime. In such a setting, communication is the main objective, and the goal of determining proper retribution is not at issue.[47] The parties are, therefore, less interested in negotiating a settlement and more concerned with confronting and communicating with each other.[48]

After a thorough screening process, victim-offender mediation brings together victims and their offenders who voluntarily agree to engage in “face-to-face” dialogue with the assistance of a trained mediator.[49] In these meetings, victims are able to ask questions, such as “Why did you do this to me,” in order to ease their minds and feel secure and whole again.[50] Offenders learn the consequences of their actions, understand the enduring effects of their criminal acts, and may apologize and/or gain forgiveness.[51] Through this dialogue, victims are able to understand who their offenders are and what may have caused them to commit the crime.[52]

Another fundamental purpose of victim-offender mediation is to afford the victim an opportunity to confront his or her offender in order to better understand the situation and facilitate the healing process.[53]Therefore, in order to be a candidate for victim-offender mediation, the offender must have admitted to committing the offense and voluntarily agreed to participate in the mediation.[54] Additionally, this dual prerequisite ensures that the offender will not be adversely affected by opting not to participate in the program.[55] Without the voluntary requirement, the entire foundation of victim-offender mediation would be compromised.[56]

Victim-offender mediation can be used in a variety of cases; however, depending on the severity of the crime, the mediation should not be used as an alternative to the traditional system of criminal prosecution, but rather as a supplement. For example, although mediation involving less serious crimes may be appropriately used as an alternative to the prosecutorial system, mediations involving more violent crimes should be held in conjunction with the prosecutorial system.[57] Such violent crimes include homicide, vehicular homicide, assault, and rape.[58] In addition, other suggested uses may broaden the scope of victim-offender mediation to include hate crimes and crimes of spousal and/or domestic abuse.[59]

III. DOES VICTIM-OFFENDER MEDIATION REALLY WORK?

            Advocates affirm that victim-offender mediation, when used in misdemeanor offenses, is a viable and effective part of the criminal justice system. However, due to the complexity of serious and violent crimes, the expanded use of victim-offender mediation requires a closer look at the benefits, negative implications, and ethical considerations of victim-offender mediation.

A. Benefits of Victim-Offender Mediation

a. Benefits to the Victim

            The benefits of victim-offender mediation are numerous. Overall, the victim-offender mediation process creates a more humanizing effect that the traditional criminal prosecution system cannot match.[60]Victim-offender mediation provides an opportunity for victims to heal, emotionally and psychologically, through meeting and communicating with their offenders.[61] Since victims are traditionally left out of the criminal justice process, victim-offender mediation provides an opportunity to be a part of the outcome of justice.[62]Through dialogue, victims are given the chance to tell the offender how the crime committed against them affected their lives and their families’ lives.[63] Since victim-offender mediation is a dialogue-based program, victims are granted the invaluable opportunity to question their offenders about why they committed the crime against them.[64] This portion of the mediation has a cathartic benefit that liberates victims from their “haunting questions” and ruminations.[65] Ultimately, these answers prompt victims to heal from the repercussions of the crime.[66]

Victim-offender mediation has the advantage of giving victims the power to devise a restitution agreement that is personal to them and to the crime committed against them.[67] Although restitution is neither the goal nor the primary purpose of victim-offender mediation,[68] restitution does serve an important function. The victims feel empowered and satisfied when they choose a form of restitution that is personal to them, which they do not receive from an arbitrary court imposed punishment.[69] Therefore, this form of restitution is distinct from those implemented in the criminal courts. Where the criminal courts are concerned with punitive restitution, mainly through fines or incarceration, victim-offender mediation utilizes personal restitution that is appropriately tailored to the individuals and communities involved in the crime.[70] Although the agreed upon restitution plans are usually financial,[71] in some instances the parties may instead agree upon community service or personal service for the victim.[72] Another benefit of allowing victims and offenders to draw up their own restitution agreements is the high rate of agreement adherence.[73]

In some instances, victims have further benefited from a process that enables them to forgive their offenders.[74] Although forgiveness is not the presumed outcome, or even the aim of victim-offender mediation, offenders are afforded the opportunity to ask for forgiveness, and at times, offenders may receive acknowledgement of forgiveness from the victims.[75] Through forgiveness, victims are often able to let go of their anger, resentment, and fear and move beyond the crime committed against them.[76]

b. Benefits to Offenders

            Victim-offender mediation is not solely for the benefit and healing of the victim. The offenders also benefit from the program. Offenders tend to recognize the fairness and justice in this system and are, therefore, more likely to positively respond to the process.[77] Traditional criminal judicial processes force offenders into the role of the defendant, where in order to avoid punishment, they often detach themselves by denying responsibility.[78] The accuseds’ legal advisors recommend that their client somewhat withdraw from the proceedings by not communicating feelings of remorse through words or body language, and “sadly, in many cases the defendant has stifled a sincere desire to approach the victim in apology and contrition.”[79] In contrast, when offenders participate in victim-offender mediation, they are placed in an intimate encounter with their victims where they are expected to acknowledge their wrongdoings. In this setting, the offenders have difficulty defending and “rationalizing” their criminal actions;[80] therefore, “the harm caused by their crime is no longer an abstraction but very real.”[81] Through the human nature aspect of the mediation, victim-offender mediation has proven to generate sincere feelings of remorse within the offender.[82] Human rights activists explain that healing cannot begin until criminals acknowledge their wrongdoings and feel remorseful.[83] Therefore, victim-offender mediation offers a more effective way of dealing with criminals, rather than solely focusing on punishment.

c. Benefits to the Community

            The criminal justice system has always recognized that a crime against a person is a crime against society, which explains why the State, rather than the victim, prosecutes the criminal.[84] Communities, however, do not really benefit from the traditional criminal judicial process.[85] In contrast, communities do benefit from victim-offender mediation.[86] Arguably, the principal advantage of victim-offender mediation is that it generates a low occurrence of recidivism.[87] Studies have shown that offenders who participated in victim-offender mediation are less likely to commit future crimes.[88] The personal effect that facing the victim has on an offender has been attributed to the low rate of recidivism.[89]

As previously stated, the restitution agreements reached in victim-offender mediation tend to be more effective than those handed down by the courts.[90] This higher rate of compliance may benefit the community if the agreed upon restitution is to provide community service. Offenders view mediated restitution agreements differently than court ordered restitution. “Offenders do not experience court-ordered restitution as a moral obligation.”[91] However, offenders do feel morally obligated to satisfy the arrangements reached in victim-offender mediation, which allow offenders to participate in the creation of the restitution agreement. Offenders, therefore, view the agreement as something that facilitates justice by being a more personal and meaningful facilitation of true justice.[92] As a result, offenders who participate in victim-offender mediation show a higher rate of restitution compliance than those who experience the court-ordered restitution.[93]

B. Weaknesses of Victim Offender Mediation

            Although victim-offender mediation is often viewed as a highly effective program, victim-offender mediation is not without criticism. One of the main criticisms of victim-offender mediation is the lack of adequate guidelines established to ensure an effective and ethical process.[94] For example, many criticize the lack of formal training of mediators in the practice of victim-offender mediation.[95] Critics suggest that a failure to provide proper training can lead to “unclear goals or policies; inappropriate referrals; and unhappy participants.”[96]

Accepting inappropriate referrals is problematic in victim-offender mediation.[97] As stated earlier, participation in victim-offender mediation programs is expected to be completely voluntary in order to be successful.[98] Forcing parties into victim-offender mediation would “not only conflict with the philosophical underpinnings but would exacerbate the loss of control already felt by people who have been victimized by crimes.”[99] Other examples of inappropriate referrals include offenders who have been ordered by the courts to participate in the program; offenders who believe participating will offer them an “easy way out, even if they are not guilty;” or cases such as, abuse and incest, which are referred simply because the “system does not want to deal with” these types of matters.[100] By accepting inappropriate cases, the victim-offender mediation program will suffer and lose its credibility.[101]

The protection and safety afforded to the victims is another concern associated with victim-offender mediation programs.[102] In the past, reports of re-victimization have occurred where an offender confronts his or her victim.[103] Victims are highly sensitive and apprehensive when initially facing their offenders, therefore, it is imperative that mediators respect victims’ vulnerabilities by ensuring victims’ safety and enhancing victims’ feeling of comfort and security.[104]

The Victim-Offender Mediation Association (“VOMA”) published recommended ethical guidelines in order to address and ameliorate the above-mentioned concerns.[105] These guidelines, which are criticized as being too broad, provide training and education recommendations for mediators.[106] In addition, these guidelines state the need for careful screening to ensure the appropriateness of the cases and to ensure the safety of the victim and the offender.[107]

Despite some concerns over potential victim-offender mediation shortcomings, the American Bar Association (“ABA”) endorses victim-offender mediation.[108] This endorsement highlights the program’s effectiveness and the program’s role as “an integral component in a comprehensive corrections system, helping to avoid high human and economic costs of unnecessary incarceration.”[109] The ABA highlights many of the benefits of victim-offender mediation[110] and recommends that “Federal, state, territorial, and local governments” integrate victim-offender mediation into their criminal justice systems.[111] The ABA’s endorsement also reiterates some of the recommended guidelines proposed by VOMA[112] and specifies that victim-offender mediation programs should conform to the guidelines already adopted by the ABA.[113]

The ABA endorsement concludes with the following qualification of victim-offender mediation:

Victim-offender mediation/dialogue programs that meet the parameters set forth in this recommendation will not be a panacea, solving all 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 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 all of us.[114]

IV. INVOLVEMENT OF THE CRIMINAL JUSTICE SYSTEM IN VICTIM-OFFENDER MEDIATION

Since the initiation of victim-offender mediation programs in the 1970s, courts have slowly become more involved in the process by referring appropriate cases to the program. This Note suggests that continued success of victim-offender mediation programs depends on the cooperation and endorsement of the courts. While courts are needed to act in conjunction with the programs to effectuate justice, courts must also give victim-offender mediation programs the opportunity to act as a separate entity from the traditional criminal prosecution system.

By allowing victim-offender mediation some autonomy within the traditional system of criminal prosecution, “emphasis can be placed on problem solving wherein the procedure and outcome are determined by the needs of the parties. The criminal justice system could then mainly act as an ‘overseer,’ to make sure that everything is going alright.”[115] Although victim-offender mediation remains reliant on the traditional system to prosecute offenders of violent crimes, the program is able to gain its own piece of the criminal justice process.[116]

One of the major necessities of victim-offender mediation is that the offender must be the actual guilty party.[117] Therefore, courts are especially important to victim-offender mediation by assisting in the assessment of the guilt of the accused offender. Determining the offender’s guilt is necessary since mediation is not an adjudicatory process and the program does not have access to the same evidence that the courts have, nor are they able to make an assumption of guilt or innocence based on the limited evidence the program receives.[118]

In addition, when problems arise, courts should aid in the implementation of the parties’ agreements.[119] Victim-offender mediation has relied upon the court’s knowledge of contract law, and the remedies for breach of contract are essential to the enforcement of the restitution agreements.[120] In addition, courts may be called upon to help revise existing provisions of the agreements reached between the victim and the offender.[121]

Victim-offender mediation programs are also dependent upon the courts to regulate the procedures they use for determining which cases in the court system to refer to victim-offender mediation.[122] Victim-offender mediation programs rely on the courts to refer appropriate and diverse cases, including cases that the courts cannot handle efficiently because of a lack of resources.[123]

V. EXPANSION OF VICTIM-OFFENDER MEDIATION TO INCLUDE SERIOUS AND VIOLENT CRIMES

            Until recently, nearly all victim-offender mediation programs only accepted cases involving crimes of a less serious and violent nature.[124] The majority of cases mediated involved property crimes and minor assaults.[125] However, the success of victim-offender mediation in those types of cases has led to the use of victim-offender mediation in cases of more serious and violent crimes.[126] Such crimes include rape, vehicular homicide, attempted homicide, and murder, all of which are complex crimes requiring an “intense and lengthy mediation process.”[127]

The dissatisfaction victims had with the current punishment-oriented judicial system led to the expansion of victim-offender mediation to serious and violent crimes. Victim-offender mediation of serious and violent crimes is not intended to be a substitute for the criminal penal system.[128] Rather, it offers a way to link together the other aspects of justice including victim fulfillment and appropriate offender retribution.

Mediating serious and violent crimes has generated substantial debate throughout the world.[129]Proponents feel that the potential of victim-offender mediation to provide justice for victims of serious and violent crimes is obvious, while critics suggest these crimes are too complex and severe to allow restorative justice to play any part in its outcome. However, even critics are aware of the increasing problem of over-crowded jails and increasing rates of recidivism and do not deny that the criminal justice system is in need of help.[130] The statistics are undeniable; increasing crime rates and over-crowded jails are plaguing the United States more than ever.[131] â€œThe punitive approach to justice has resulted in the United States becoming the largest jailer (per capita) in the industrialized world, with a violent crime rate that is second to no other industrialized nation.”[132] It is important to note that punishment and incapacitation[133] remain integral to our society when dealing with violent criminals. Although victim-offender mediation does not attempt to obviate this aspect of the criminal justice scheme,[134] we cannot rely on punishment alone in the effort to combat violent crimes. This notion, however, faces the challenge of contending with the reality that many victims of these brutal crimes still “demand [some form of] revenge.”[135]

A. Implementing Victim-Offender Mediation into the Judicial Process in Cases Involving Serious and Violent Crimes

            The expansion of victim-offender mediation to serious and violent crimes has been appealing to many victims affected by these heinous crimes.[136] The mediation is usually initiated at the victim’s request.[137]Then, as long as a the mediation fosters a safe and controlled environment, led by a properly trained mediator, many victims are able to directly come face-to-face with their offenders.[138] This encounter provides a rare opportunity for victims to confront their offenders with the hope of finding some solace and relief from the haunting effects of the crime. Participating victims should not be encouraged by a mediator to drop criminal charges subject to prosecution; however, in some instances, victims have voluntarily chosen to do so.[139]

As this Note previously discussed, the victim has relatively no control over the judicial processing of the crime committed against them. The State has “assumed a dominant role in the justice process,” leaving the victim without a place to participate.[140] This exclusion from the judicial process has regrettably led the victim to be termed the “forgotten person” in the “administration of justice.”[141] However, as the incidence of abuse and violence continues to rise, victim advocate groups are addressing the needs and rights of victims.

The traumatic event of a serious and violent crime can leave a victim feeling powerless, isolated, ashamed, angered, and scared.[142] The families and communities of the victim share these feelings as well.[143] In addition, the lasting psychological effects on a victim of crime may be further exacerbated by secondary victimization.[144] Secondary victimization effects are caused not by the criminal act itself, but through the “response of institutions and individuals to the victim.”[145] This victimization occurs most notably in instances where the criminal justice system places the offender’s due process rights ahead of the emotional needs of the victim.[146]

Foremost, victims of catastrophic crimes want to be healed and have closure. However, even when the victims’ needs are acknowledged, it is wrong to presume that they are only after revenge and punitive retribution. Although victims may initially endure overwhelming feelings of anger and hatred for their offenders, creating the need for automatic revenge, they soon realize that the judicial system’s role as a punisher, upon which they are forced to rely, does not offer solace from the effects of the crime.

An extreme example of the dissatisfaction with the traditional punitive system is seen in crime victims whose offender is facing the death penalty. Studies indicate that these victims desire more than revenge.[147] Instead of wanting to punish or subject their offenders to a penalty of death, most victims simply want “recognition and acknowledgement of the harm done.”[148]

Murder Victims’ Families for Reconciliation is an organization composed of families of murder victims who oppose and work to abolish the death penalty.[149] Members of this organization speak out against prosecutors who seek the death penalty as a way of “righteously claiming to be seeking justice for the grieving families and giving them what they want and need.”[150] These members have ultimately recognized that “pain isn’t something that you can get rid of by transferring it to someone else.”[151]Punishment alone is insufficient because punishment only affects the offender and does not address the victim’s need for closure and relief.[152] As Price acknowledges, “Punishment is not for the benefit of the victims. Our society exacts punishment in response to the notion that crime is a violation against the State and it creates a debt to the State.”[153]

Marty Price highlights a story about “John” who witnessed his parents’ murder as teenager while he and his sister were shot and left for dead.[154] Subsequently, as a result of the crime, one of the offenders was executed, and John had the opportunity to witness the execution. John, however still felt unsatisfied and yearned for true reparation.[155] In an attempt to find relief from his hate and bitterness, John decided to confront the other murderer in mediation.[156]

After the mediation between John and his offender, John reported that the mediation “changed his life.”[157]

B. A Case Development Study of Victim-Offender Mediation of a Serious and Violent Crime

            Elizabeth Menkin suffered a tragic loss when a drunk driver took the life of her sister, Elaine.[158]However, through the use of victim-offender mediation, Menkin found a place where justice actually prevailed.[159] After her sister’s death, Menkin experienced the first of the four steps that most victims undergo.[160] Menkin initially felt shock, grief, and an “upwelling of vengeful anger.”[161] Menkin strived to overcome her loss and grief, yet she was left feeling “helpless, frustrated, and angry.”[162]Menkin concentrated all her thoughts on the 25-year-old offender and the fact that the offender might plead not guilty.[163]

Menkin’s father, Peter, handled his grief over the tragedy differently. Although tormented by his daughter’s death, he focused on the prevention of further tragedy and suffering to his and the offenders’ families.[164] Peter contacted Marty Price, the director of the Victim-Offender Mediation Reconciliation Program in Clacksman County, Oregon about his situation.[165] Price agreed to conduct victim-offender mediation between the offender and Peter, but encouraged Peter to get the other members of his family involved in the process as well.[166] Although his family members were initially reluctant to participate in the mediation, as Peter shared his experiences many members of the family decided to become involved in the meditation.[167]

Menkin wondered what the drunken driver who killed her sister would have to do to earn her forgiveness.[168] Menkin realized that she needed the offender to recognize her wrongdoing and to express remorse for the consequences of her criminal behavior; only then would Menkin believe she could “stop hating her.”[169] In addition, Menkin wanted the offender to feel “regret, shame, suffering, and humility.”[170] Once Menkin was able to recognize what she needed from the offender, she was able to imagine facing her in mediation.[171]

Even before the actual meeting, Menkin and her family began to feel the benefits of the process.[172] Menkin acknowledged that the greatest benefit for the family “was to feel that we were trying to make something positive out of a very negative situation, as Elaine would have wanted.”[173]

The actual mediation proceeded as the victim’s family members and the offender intended, and by all accounts, the parties’ experience served as a success story for using this process in the context of serious and violent crimes. The entire family had the opportunity to individually address their feelings and desires to the offender;[174] the offender listened and expressed feelings of sincere remorse,[175] and the parties collectively created a restitution agreement that incorporated all the family members’ needs.[176]

The family noted the immediate emotional healing from the mediation. Menkin reported that the day after the mediation she noticed her tension had disappeared and she felt relief as she let go of “feelings of vengeance and despair.”[177] Elaine’s husband noted how his “brightness and vigor” were restored.[178]

The offender also benefited from the process. She completed the provisions of the restitution agreement and has since remained sober and used her experience as a way to better her life.[179]

C. Realistic Concerns and Potential Dangers to Address Before Extending Victim-Offender Mediation to Serious and Violent Crimes

            Ideally all victim-offender mediations of serious and violent crimes would be as successful as John and Elizabeth Menkin’s process. However, even proponents admit that victim-offender mediation involving such crimes is not appropriate in every, or even in most, situations.[180] The American Bar Association, which supports the notion of mediating cases of a violent and severe nature, reports that “special care must be taken,” and only extensively trained mediators should handle “such highly sensitive cases.”[181]

The primary concern when mediating these crimes is that both parties must voluntarily and willingly agree to participate in the mediation.[182] Once both parties agree to the mediation, the case then needs time to ripen.[183] Therefore, extensive screening and preparation is essential to facilitate a successful mediation[184] and to prevent any re-victimization caused by a poorly run mediation.[185]

In mediations involving serious and violent crimes, the primary focus is not simply on resolving a conflict through confrontation and dialogue, but on healing the parties through confrontation and dialogue.[186] Therefore, the process takes a much different form than mediating crimes of a less violent or severe nature,[187] and the mediators should undergo extensive training and acquire special skills to handle the victims. Foremost, it is imperative that the mediators empathize with the victims and understand the victimization experience. Mediators need to be able to sympathize with grieving families and understand their need to cope with their losses. Mediators should also collaborate with psychotherapists, in order to prevent re-victimization.[188]

The mediator should also take the time to learn about the individual offender and his life experiences that may have led to the commission of the crime. This information gathering process will enable a mediator to readily determine if an offender is a suitable candidate to pursue the mediation. An essential component of victim-offender mediation is for the offender to show the necessary remorse and a willingness to repent.

In addition, the mediator should also act in an extremely non-judgmental manner towards offenders who have committed such heinous crimes, and a mediator must be able to negotiate with high-level corrections officials to gain access to the offender and to conduct mediation in prison.[189] When working with an imprisoned offender, the mediator should understand the complex criminal justice system and the offender’s experience of being placed in prison.

Another essential element of the mediation of serious and violent crimes is to have the support of the offender’s defense attorney.[190] Typically the idea of victim-offender mediation is proposed to the defense attorney who conveys the suggestion to the offender.[191] Since the offender often relies on his or her counsel to direct them in the proper course of action, usually the attorney has great influence over the client in either encouraging or discouraging his or her participation.[192]

Through such proper implementation, victim-offender mediation of serious and violent crimes has the potential to gain substantial support. In addition, the concern over potential shortcomings would dissipate if the American Bar Association sets out more explicit and stringent guidelines for victim-offender mediation programs. To date, the main arguments against the expansion of victim-offender mediation to serious and violent crimes are based on the concern for the safety of the victim (mainly preventing re-victimization) and the appropriateness of cases selected to go to mediation. Victim-offender mediation programs are aware of these concerns and take them into serious consideration before selecting the case as a candidate for mediation. Therefore, as long as the mediators are rigorously and properly trained, courts refer appropriate cases, the cases go through a strict selection process, all parties are thoroughly prepared to enter the mediation, and the criminal courts continue their role in prosecuting the accused, no reason exists that would justify prohibiting the expansion of victim-offender mediation to serious and violent crimes.

[1] Senior Articles Editor, Cardozo Journal of Conflict Resolution. Benjamin N. Cardozo School of Law, J.D. Candidate, June 2004. The author would like to thank Leslie Salzman, Clinical Professor of Law and Supervising Attorney of the Bet Tzedek Legal Services Clinic , for her guidance during the creation of this Note.

[2] See, e.g., Marty Price, Personalizing Crime: Mediation Produces Restorative Justice for Victims and Offenders (2001), http://vorp.com/articles (last visited Mar. 3, 2002).

[3] See Lorenn Walker, Conferencing: A New Approach for Juvenile Justice in Honolulu (June 2002) (stating that American justice is based on retributive values, whereas restorative justice is based on the crime and the effects of the crime on the victim and the community, creating the need for their involvement in determining what is ultimately deemed justice), http://www.restorative practices.org/Pages/lwalker02/html (last visited Mar. 3, 2002).

[4] See id. at Part 2. The emptiness felt by a victim stems from the victim’s belief in the system and belief that severe punishment will bring them justice. However, “retribution cannot restore their losses, answer their questions, relieve their fears, and help them make sense of their tragedy or heal their wounds.” Id. See alsoMark Umbreit, Restorative Justice Through Victim Offender Mediation: A Multi-Site Assessment, http://wcr.sonoma.edu/v1n1/umbreit.html (last visited Oct. 20, 2002).

[5] See, e.g., What is Restorative Justice?, at http://restorativejustice.org/rj3/intro_default.htm. (last visited Oct. 20, 2002).

[6] Walker, supra note 3, at Part 4 (arguing how western justice does not focus on victims or even the offenders, but is instead overly concerned with retribution and finding appropriate forms of punishment).

[7] Id.

[8] See, e.g., Price supra note 2, at Part 2.

[9] See Marty Price, Punishment- What’s in it for the Victim?: A Restorative Justice Discussion for Crime Victims and their Advocates, Center, 5 Kaleieidoscope of Justice 1(Mar./Apr. 1997). Other methods of restorative justice include family group conferencing, community sentencing circles, neighborhood accountability boards, reparative probation, restitution programs, community service programs, and victim-offender mediation, http://vorp.com/articles (last visited Oct. 20, 2002).

[10] See Price, infra note 34, at Part 8. (describing the implementation of victim-offender mediation in North America).

[11] See, e.g., American Bar Association Endorsement of: Victim-Offender Mediation/Dialogue Programs, Part 1 (Aug. 1994), http://vorp.com/articles/abaendors.html. (last visited Oct. 21, 2002).

[12] See, e.g. Price, supra note 2, at Part 4.

[13] See Mark Umbreit, et al., The Impact of Victim-Offender Mediation: Two Decades of Research , 65- DEC FEDPROB 29 (Dec., 2001). In a 1996-97 survey, two-thirds of victim-offender mediation cases involved offenders of misdemeanor crimes; forty-five percent worked with juveniles, while only nine percent handled adults; the remaining worked with both. See id. at Part 8.

[14] See, e.g., id. at 34 (discussing finding a way for victim-offender mediation to handle crimes of a more serious or violent nature such as domestic abuse, drunk driving fatalities, homicides, and hate crimes).

[15] See id.

[16] See Andrew Ashworth, Some Doubts About Restorative Justice, 4 Crim. L.F. 277, 278 (1993).

[17] See supra note 5, at Part 1 (describing how communities have a stake in the crime as well as the victim. A community has an interest in the need to decrease crime and prevent criminals from committing future crimes). Although the judicial system has recognized that the community has a stake in the crime, which explains why the State takes over for the victim, the State’s method of prosecution does not fully recognize the community’s needs.

[18] Marty Price, Crime and Punishment: Can Mediation Produce Restorative Justice for Victims and Offenders?, http://vorp/articles (last visited Jan. 7, 2004).

[19] See Price, supra note 2, at Part 1.

[20] See Umbreit, supra note 13, at 30. “The State has somehow stood in for the victim, and the offender has seldom noticed how his or her actions have affected real, live people.” Id. at 30.

[21] E.g., Mark Umbreit, Restorative Justice Through Victim Offender Mediation: A Multi-Site Assessment(1998), Part 2, Western Criminology Review 1(1), http://wcr.sonoma.edu/v1n1/umbreit.html (last visited October 20, 2002).

[22] See Price, supra note 2.

[23] Price, supra note 2, at Part 1.

[24] See, e.g., Price, supra note 9, at Part 4. If punishment was the key, then compared with the number of people the court system imprisons, the recidivism should be significantly smaller than other countries. However, to the contrary, the United States is plagued by an increasing incidence of repeat offenders.

[25] Umbreit, supra note 21, at Part 1.

[26] See supra note 5, at Part 4. Although the terms of these goals may vary depending on the source of information used, the goals and purposes of the victim-offender mediation programs are basically centered on the same core principles.

[27] See id. By discussing the effects of the crime, the victims are able to explain to the offender how the crime committed against them has affected their lives. They can inform the offenders of the consequences of their criminal actions and ask the offender questions that they would not otherwise have an opportunity to ask. The offenders, on the other hand, are given an opportunity to explain their own life experiences and what may have led up to committing the crime. The offenders can express remorse, or regret, and can even ask for forgiveness.

[28] See id. The purpose of victim-offender mediation is to allow the victims to have control over the aftermath of the crime, to restore their sense of security, and to allow them the opportunity to feel whole again. To that end, it is imperative that the offenders attend the mediation with the desire to repair the harms they have inflicted.

[29] See id. Often after a criminal trial is over, whether or not the accused was found guilty, victims do not regain their confidence, esteem, and fearlessness that they had before the crime. In addition, offenders who are imprisoned are not given an adequate opportunity to rehabilitate and change themselves. Failing to facilitate rehabilitation might explain why the incidence of recidivism is so high among offenders who have been through the judicial system. However, restorative justice programs allow victims and their offenders to prepare mutual agreements. In addition, offenders are encouraged to make amends. These aspects of the programs enable victims to liberate themselves from the criminal act and re-enter society. In addition, making amends enables offenders to rehabilitate themselves into law-abiding citizens.

[30] See id. Victim-offender mediation provides victims with the opportunity to state what he or she wants from the offenders and to request that their offenders perform certain obligations that meet the victim’s needs and not the judicial system’s needs. The offenders may also make suggestions that they feel are appropriate to the crime they committed. Therefore, the victim will feel more satisfied knowing their offenders are doing something that they suggested, rather than doing something that the judicial system required.

[31] See Jan Bellard, The Community Mediator, Victim-Offender Mediation , (2000). Approximately 300 victim-offender mediation programs exist in the United States and more than 500 programs exist in other parts of the world, http://www.voma.org/docs/bellard.pdf (last visited on Mar. 23, 2003). Id. at Part 1.

[32] See Price infra note 34 (describing North America’s first experience with victim-offender mediation and how it was implemented into the criminal justice system).

[33] See Umbreit, s upra note 21, at Part 8.

[34] See Marty Price, VOMA Quarterly, Victim-Offender Mediation: The State of Art, (noting the “humble beginnings” of victim-offender mediation), http://www.vorp.com/articles/art.html (last visited Oct. 21, 2002).See also , Mark Umbreit, Restorative Justice Through Victim Offender Mediation: A Multi-Site Assessment(1998), Part 8, Western Criminology Review 1(1), http://wcr.sonoma.edu/v1n1/umbreit.html (last visited Oct. 20, 2002).

[35] See Marty Price, VOMA Quarterly, Victim-Offender Mediation: The State of the Art. The crime involved two juvenile boys, aged 18 and 19, who went on a drunken “rampage” and destroyed twenty-two cars. The boys smashed the cars windshields, mirrors, grills and lights, and slashed tires. See id,http://www.vorp.com/articles/art.html (last visited October 21, 2002).

[36] See id. at Part 1. The boys’ probation officer did not consider punishment to be appropriate for these young boys. He told the judge, “There could be some therapeutic value in these two young men having to personally face up to the victims of their numerous offenses.” Although the judge first responded with reluctance to the officer’s suggestion, describing the recommendation as “having no basis in law,” he eventually agreed to the officer’s recommendation. See id.

[37] See id. at Part 1. The boys went to each victim’s home or store and worked out a restitution agreement for each victim’s losses.

[38] See id. at Part 1. The boys fulfilled their restitution agreements and paid back the victims over $2,000.

[39] Id. at Part 1.

[40] See, e.g., Id. at Part 1.

[41] See Price, supra note 2.

[42] Juhani Ivari, Victim Offender Mediation- An Alternative, An addition or Nothing but a Rubbish Bin in Relation to Legal Proceedings?, Restorative Justice Online (April 2002), athttp://www.restorativejustice.org/rj3/Full-text/Finland/VOMarticle.pdf (last visited Jan. 7, 2004).

[43] See id. In most cases the victims have dropped the charges against their offenders, even in serious crimes that are subject to public prosecution. However, the prosecutor will still exercise his own right to press charges and bring the offender into criminal proceedings.

[44] See id. (describing how mediation does not interrupt the criminal process because the prosecution always has the right to institute criminal proceedings against the offender, especially in cases involving serious and violent crimes. The offender, therefore, cannot avoid punishment by opting to participate in victim-offender mediation).

[45] See Umbreit, supra note 21, at Part 9. “Most programs employ a four phase process consisting of: (1) case referral and intake; (2) preparation for mediation, at which time the mediator meets with the parties separately prior to the mediation session in order to listen to their stories, explain the program, invite their participation, and prepare them for the face-to-face meeting; (3) mediation, at which a trained third party mediator (most often a community volunteer) facilitates a dialogue that allows the victim and offender to talk about the impact of the crime upon their lives, provide information about the event to each other, and work out a mutually agreeable written restitution agreement; and (4) follow-up, which monitors restitution agreements; follow-up mediation sessions are scheduled if problems arise.” Id. at Part 9.

[46] See Price, supra note 34, at Part 2. Victim-offender mediation is distinct from mediation used in divorce and custody disputes, community disputes, commercial disputes, and other civil conflicts. See also Mark Umbreit, Restorative Justice Through Victim Offender Mediation: A Multi-Site Assessment (1998), Part 8, Western Criminology Review 1(1), “While many other types of mediations are largely ‘settlement driven,’ victim-offender mediation is primarily ‘dialogue driven,’ with the emphasis upon victim healing, offender accountability, and restoration of losses.” Id. at Part 8, http://wcr.sonoma.edu/v1n1/umbreit.html (last visited Oct. 20, 2002).

[47] See Umbreit, supra note 21, at Part 8. Victim-offender mediation differs in that mediators use a humanistic model of mediation, which involves the mediator focusing on the dialogue of the parties rather than reaching a settlement agreement. Victim-offender mediation concentrates on establishing dialogue between the victim and offender, with emphasis on “victim healing, offender accountability, and restoration of losses.”

[48] See id. at Part 8. Victim-offender mediation concentrates on establishing dialogue between the victim and offender, with emphasis on “victim healing, offender accountability, and restoration of losses.”

[49] See Price, supra note 18.

[50] See id. The criminal judicial system does not allow the victim to ask these questions with the opportunity to gain answers and insight. Instead, the only place where the victim may even confront her offender directly is through the pre-sentencing statement, but this is just a speech and the victim can read without offering an opportunity for the offender to directly respond. See also Handbook on Justice for Victims, infra note 62, at Part Chapter II, Section D, Part 3. The judicial system discourages victims involving themselves in the proceedings for fear that offenders would be subject to harsher punishments. Courts are also afraid that victims may complicate the proceedings. The only chance the victim has to state his or her personal feelings is through the victim impact statement. However, many argue that this occurs too late in the criminal justice process. See id.

[51] See e.g., Price, supra note 2. See also American Bar Association, supra note 11. When the victim begins to question the offender, for the “first time,” the offender may “realize the level of emotional trauma caused by his or her criminal conduct.” See id.

[52] See Bellard, supra note 31, at Part 5.

[53] See id. at Part 4.

[54] See id. at Part 4. According to Eric Gilman, “The accused must be willing to own their part of what happened . . . There [must be] clear acknowledgment of responsibility on the part of the accused for their role in the incident.” Id. See also Price, supra note 2 (noting that although victim participation is always voluntary; offender participation is voluntary in most programs).

[55] See e.g., Bellard, supra note 31, at Part 6. See alsPrice, supra note 34, at 2To maintain the efficacy of victim-offender mediation, it is imperative that both the victim and offender voluntarily agree to mediation, “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 program.” See id.

[56] See e.g., Bellard, supra note 31, at Part 6.

[57] See Department of Justice, Government of Newfoundland and Labrador, Making it Safe: Women, Restorative Justice and Alternative Dispute Resolution , (July 2000) (questioning whether restorative justice based programs are, in fact, appropriate in situations involving severe abuse and violence. Although victim-offender mediation is not explicitly identified, this source acknowledges the potential dangers of using restorative justice to handle such a sensitive situation and recommends that these programs be used to “compliment the criminal justice system and effectively function side by side.”) Id. at 18, http://paafv@nfld.com (Last visited on Mar. 1, 2003).

[58] See e.g., Price, supra note 34, at Part 4. The expansion into serious and violent crimes usually occurs at the request of the victim. However, victim-offender mediation in these tragic crimes is not appropriate for all victims.

[59] See Alyssa H. Shenk, Note, Victim-Offender Mediation: The Road to Repairing Hate Crime Injustice , 17Ohio St. J. on Disp. Resol. 185 (2001) ( proposing broadening the scope of victim-offender mediation to incidents involving minor and severe hate crimes and outlining three principle benefits of victim-offender mediation. First, providing a human element in hate crimes may deter the offender from acting similarly in the future. Second, providing an emotional relief in a highly sensitive area of crime. Third, filling the gaps that hate crime legislation has not been able to reconcile or fill).

[60] See Umbreit, supra note 21, at Part 9. “ The victim-offender mediation process has a strong humanizing effect on the justice system response to crime, victims, and juvenile offenders.” Id. at Part 9, sec 6. See also American Bar Association, supra note 11, at Part 1. “One of the chief benefits of victim-offender mediation/dialogue programs is that they humanize the criminal justice process.” Id. at Part 1.

[61] See id. See also, e.g., Umbreit, supra note 21, at Part 8. Victim-offender mediation may also be referred to as “victim-offender meetings,” or “victim-offender conferences,” since the victim tells the offender how the crime affected his or her life and, in turn, the offender can share with the victim his or her past and take responsibility for his or her criminal behavior.

[62] See Handbook on Justice for Victims (1999) (acknowledging the lack of attention that is typically focused on victims in the traditional criminal judicial system). Victim-offender mediation, allows the victims the opportunity to be treated more than a mere witness and to confront their offenders in a situation that allows the latter to fully understand how their criminal behavior impacted their lives. www.victimology.nl/onlpub/hb/hbook.html (last visited Jan. 7, 2004).

[63] See John Braithwaite, Restorative Justice: Assessing Optimistic and Pessimistic Accounts, 25 Crime & Just. 1 (1999).

[64] See American Bar Association, supra note 11. See also Umbreit, supra note 21, at Part 7.

[65] See Price, supra note 2, at Part 4. See also Price supra note 18, at Part 3.

[66] See Handbook on Justice for Victims, supra note 62, at 6. (discussing the four phases that victims typically endure in the aftermath of crimes. The initial reactions may be shock, fear, anger, disbelief, and guilt. This initial stage is followed by a period of disorganization, which may manifest itself in nightmares and stress about the event. Next, victims undergo a period of acceptance and reconstruction, which will eventually lead to normalization and adjustment. Victims pass through each of these stages at their own rate; however, in some instances, a victim might get stuck in one particular stage. Victim-offender mediation facilitates this process and allows victims to ultimately pass through each stage and heal).

[67] See, e.g., Umbreit, supra note 13, at 30. Although victims usually complete victim-offender mediation impressed by the experience of approaching their offender, victims typically enter the process motivated by restitution. See also Menkin, infra note 164 (providing an illustration of a victim-offender mediation case dealing with the death of a family member who was killed by a drunk driver. The story highlights how the victims’ needs were met by working out a restitution agreement that fully incorporated the personal demands of the victims).

[68] See e.g., Umbreit, supra note 13, at 31. In victim-offender mediation, restitution is considered secondary to the dialogue aspect of the mediation. See also Price, supra note 18, at Part 2. In victim-offender mediation at its best, the focus is on dialogue, understanding, empathy, and healing, rather than on over-arching goals of settlement or restitution.

[69] See Price, supra note 18, Part 3. The victim and offender in the mediation are not confined to the “narrow definitions of the law,” and are, therefore, able to develop their own agreements that are wholly relevant to the crime that was committed against them. See also Price, supra note 2, at Part 6 (allowing victims and offenders develop their own restitution agreements has led to greater satisfaction and amelioration of victims’ fears of re-victimization).

[70] See, e.g., Mark S. Umbreit & Jean Greenwood, Criteria for Victim-Sensitive Mediation & Dialogue with Offenders, (1997). Victim-offender mediation provides a unique opportunity “for victim and offender to develop a mutually acceptable plan that addresses the harm caused by the crime.” Id. at Part 1. In developing an appropriate restitution agreement, mediators should ask the victims and offenders to “brainstorm” possible remedies before the actual mediation commences. Id. at Part 10.

[71] Seee.g., Price, supra note 18, at Part 3 (describing examples of financial restitution plans such as reimbursement for funeral expenses, psychotherapy, and other financial losses resulting from the crime). See also Umbreit, supra note 27, at Part 12.

[72] See Umbreit, supra note 21, at Part 12. See also Price, supra note 2, at Part 2.

[73] See Umbreit, supra note 13, at Part 4. (reporting study results indicate that 81% of offenders in mediation complete their restitution obligations, compared to 58% through the court-administered restitution programs). See also American Bar Association, supra note 11. “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.” Id. at Part 1.

[74] See, e.g., Price, supra note 2, at Part 4. The primary focus is on “healing and closure,” however this does not necessarily make forgiveness essential to a successful outcome. Victim-offender mediation allows a forum for offenders to offer “heartfelt apologies,” which may lead to the victim offering his or her forgiveness to the offender. See id.

[75] See id. Price clarifies that “forgiveness is a process, not a goal. It must occur according to the victim’s own timing, if at all. For some victims, forgiveness may never be appropriate.” Id.

[76] See Steve Swart, The Appeal of Restorative Justice to Policy Makers, United Nations Crime Congress: Ancillary Meeting, Vienna Austria, (2000). “Forgiveness is not something that the victim does for the benefit of the offender. It is the process of the victim letting go of the rage and pain of injustice so that he or she can resume living, freed from the power of criminal violation.”

[77] See, e.g., Braithwaite, supra note 63, at 26 (explaining how offenders will respond better in criminal justice processes that they perceive to be fair and “just,” such as victim-offender mediation programs. Offenders are also less likely to commit future crimes after participating in victim-offender mediation programs).

[78] See Pricesupra note 2, at Part 8 (stating the irony in our judicial system, which consists of societal values that encourage offenders to confess to their crimes and a criminal judicial system that compromises against these values. Defense attorneys encourage their clients, regardless of culpability, to deny responsibility in order to avoid repercussions of their criminal acts).

[79] Id.

[80] See American Bar Association, supra note 11, at Part 1.

[81] Id. at Part 1. Additionally, the victims have the opportunity to view their offenders as more than criminals. Victims are imparted with the chance to understand their offenders by learning about their backgrounds and what circumstances might have led them to commit their criminal actions.

[82] See id. When the offender has the opportunity to hear first-hand from the victim how the crime affected his or her life, the offender is able to gain an understanding of the emotional trauma his or her conduct caused. After hearing the victim speak, the victim tends to feel remorseful. See also Bellard, supra note 31, at Part 4 (quoting a report in the ABA Criminal Justice Section: “One of the chief benefits of the victim-offender mediation is that they humanize the criminal justice process”).

[83] See Miriam J. Aukerman, Extraordinary Evil, Ordinary Crime: A Framework for Understanding Traditional Justice, 15 Harv. Hum. Rts. J . 39 (2002). Punishment does not provide the basis needed for criminal offender rehabilitation. When punished, criminals often disassociate themselves with their crimes and fail to acknowledge complete responsibility for their actions. The failure of our current punitive approach to justice is indicated by the high rates of recidivism amongst offenders.

[84] See, e.g., Ashworth, supra note 16, at 277.

[85] See Braithwaite, supra note 63, at 35 (arguing that communities are affected by the crime just as the victim is affected by the crime). After a criminal occurrence, communities are afraid of additional acts of violence, as well as, victim-anger breaking down a community and the families within the community.

[86] See id. Community members report high levels of satisfaction after participating in the programs. Additionally the high rate of restitution adherence has been reported to “enhance commitment to the community and feelings of citizenship.” Id. at 36.

[87] See, e.g., Braithwaite, supra note 63, at 27 (indicating an 18% recidivism rate in victim-offender mediation across four sites compared to a 27% rate among similar offenders who did not participate in victim-offender mediation programs). See also Umbreit, supra note 21, at Part 18 (reporting similar findings reached in studies of victim-offender mediation programs working with adult offenders).

[88] See Umbreit, supra note 21, at Part 18.

[89] See Price, supra note 18.

[90] See supra note 73. See also, e.g., Umbreit, supra note 13, at 32 (examining a study between youth offenders who participated in victim-offender mediation and youth offenders who did not participate in this program, indicated an 81% compliance rate with those who participated, compared to 57% of those who did not participate).

[91] Price, supra note 2, at Part 5 (discussing the reason why victim-offender mediation produces a much higher rate of restitution compliance than in court ordered restitution).

[92] See id. (describing how offenders “feel ownership of the agreement and experience it as just”) atPart 5.

[93] See Umbreit, supra note 13, at 32. Restitution agreements are effectuated in the majority of victim-offender mediations and, as the studies indicate, over eight of ten agreements are actually fulfilled by the offenders.

[94] See Bellard, supra note 31, at Part 7. Critics are concerned with the narrow establishment of guidelines because of the fear of re-victimization, or the fear of the offender actually becoming a victim of the process, whether by a vengeful or threatening victim. See id.

[95] See id. In order to avoid re-victimization or victimization of the offender, it is imperative that mediators have a sufficient foundation in the principles and practices of the program. Bellard states that victim-offender mediation “is not a money-maker or a no-brainer; it requires passion, commitment, and specific base of knowledge.” at Part 7.

[96] Id. (offering solutions to this problem such as before setting up a victim-offender mediation program, (a) local and regional needs must be assessed, (b) the national standards of practice must be reviewed, (c) time and money is needed to access the appropriate resources, and (d) commitment and passion are required).

[97] See e.g., id at Part 7. The quality of the program will suffer if inappropriate referrals are accepted; it will also result in confusion about the exact purpose of victim-offender mediation; in addition, victim advocate groups may confront victim-offender mediation with great hostility. See id.

[98] See e.g., id. See also Marty Price, Comparing Victim-Offender Mediation Program Models , 6 VOMA Quarterly 1 (Summer 1995). When assessing the appropriateness of the referral, mediators should also ensure that the victims will not be so intimidated by the confrontation that they will be too afraid to speak, or that the victims are not so over-aggressive that they may seek only to “bash the offender,” at Part 2, http://www.vorp.com/articles/compare.html (last visited Nov. 1, 2002).

[99] American Bar Association, supra note 11 (stating this requirement as a critical component to “ensure the efficacy of the program”).

[100] Bellard, supra note 31, at Part 7. In order to avoid accepting inappropriate referrals, Bellard suggests setting specific guidelines for appropriate cases that can then be implemented on a national level and adhered to by all victim-offender mediation programs. See id.

[101] See id.

[102] See Marty Price, Comparing Victim-Offender Mediation Program Models, 6 VOMA Quarterly 1 (1995), “The physical and emotional safety of the victim must be an overriding concern, not only for the obvious reasons, but also to protect the program itself.” http://www.vorp.com/articles/compare.html (last visited Nov. 1, 2002).

[103] See Id. These encounters have substantially harmed victim-offender mediation’s reputation as a safe environment in which to conduct mediation.

[104] See Umbreit, supra note 70. This article identifies one of the basic underlying principles of victim-offender mediation, “the use of specific techniques and strategies by the mediator must serve the larger goals of creating a safe, respectful environment in which a mediated dialogue can occur . . .The mediator must do everything possible to ensure that the victim will not be harmed in any way.” All of these goals can only be achieved through the use of specified mediator training and guidelines. See id.

[105] See Victim Offender Mediation Association, Victim-Offender Mediation Association Recommended Ethical Guidelines (1998). The guidelines include recommendations on the process of the mediation, mediator procedures, mediator impartiality and neutrality, confidentiality and exchange of information, responsibilities of the parties to the mediation, professional advice, the parties’ ability to participate in the mediation, training and education, costs and fees, advertising, mediator relationships with other professional, and media policy. http://www.voma.org/docs/ethics.pdf (last visited Nov. 1, 2002).

[106] See Bellard, supra note 31. The guidelines recommend that mediators acquire “substantive knowledge and procedural skill” regarding the parties and circumstances involved in the mediation. In addition, the mediator should participate in continuing education. See id.

[107] See Umbreit, supra note 70.

[108] See American Bar Association, supra note 10. In April 1994, the ABA urged Federal, state, territorial, and local governments to incorporate victim-offender mediation/dialogue programs into their criminal justice processes. In addition, the ABA encouraged the support of these governments in funding research regarding victim-offender mediation/dialogue programs and the dissemination of such study results.

[109] Id. at Part 1.

[110] See id. at Part 2. Participants report high levels of satisfaction and are impressed with the fairness. Offenders are more likely to complete their restitution agreements and victims’ gain relief to the fears and anxieties of future victimization. Moreover, almost all participants state that they would participate in victim-offender mediation again if given the choice.

[111] Id. at Part 2. The ABA does clarify that although victim-offender mediation is recommended at the Federal, State, and local level, they cannot be implemented haphazardly. In order to endure a successful implementation, the programs must meet the recommended requirements.

[112] See id. at Part 3. VOMA introduced guidelines for victim-offender mediation in order to facilitate its mission to support and develop this program, and any other form of justice, which seeks to create opportunities for dialogue between victims and communities and their offenders for the purpose of healing and restoration.

[113] See id. at Part 2. (specifying the adherence standards to ABA standards for Criminal Justice, Pretrial Release, Standard 10-6.1(a) and (c) (1985). But see, supra note 94 (stating that these guidelines may be too narrow and therefore inadequate).

[114] Id. at Part 3 (emphasis in the original).

[115] Ivari, supra note 42.

[116] See id.

[117] Assuming that cases may arise where an accused admits to a criminal act even though he or she is actually innocent. See Bellard, supra note 31, at Part 5. See also Price, supra note 2, at Part 6 (stating that the mediation process cannot commence until issues over guilt and innocence are resolved. The only possible exception may be if the defendant maintains a “pro forma not guilty plea only to preserve the possibility for plea negotiations”).

[118] See Ivari, supra note 42 (noting that victim-offender mediation programs do not have access to the same information that the court’s have and therefore are not capable of making a determination of guilt or innocence). The objective of victim-offender mediation is not to determine guilt or innocence. The parties are supposed to have determined that fact before entering the mediation. Instead the primary goal of victim-offender mediation is to facilitate dialogue between the victim and offender in the hopes of healing and restoring the victim. See also Bellard, supra note 31, at Part 5 (highlighting that the purpose of victim-offender mediation is not to determine guilt or innocence, but rather the offender who claims innocence needs to state his claim in court; not in this forum of mediation).

[119] See Ivari, supra note 42.

[120] See id.

[121] See id.

[122] See id. Courts should be provided with some clarification on what cases are appropriate for referral to victim-offender mediation. The author states that this would “rationalize mediation work and support the efforts of the formal system to promote diversion.” Id. at 10.

[123] See id. For example, courts do not like to interfere with cases that concern “the internal organization of family life.” Id. The courts feel that they do not have the same capabilities or access to the parties that mediation would be able to provide.

[124] See Marty Price, The Mediation of a Drunk Driving Death: A Case Development Study , Online Journal of Peace and Conflict Resolution 1.2 (May 1998) (describing and observing victim-offender mediation’s role in cases of serious and violent crimes), http://memebers.aol.com/peacejnl/1_2price3.htm (last visited Jan. 7, 2004).

[125] See id. See also Umbreit, supra note 21. See also Umbreit, supra note 13, at 33. Reported in a 1996-97 study, two-thirds of cases reported by victim-offender mediation programs worked only with juveniles. The contention behind this study is that victim-offender mediation is being used for diversionary purposes. See id.

[126] See, e.g. Umbreit, supra note 13, at 33. Many victim-offender mediation administrators have received requests to mediate crimes of “increasing severity and complexity.” Id. at Part 8.

[127] Umbreit, supra note 21.

[128] See Price, supra note 9. Punishment and incapacitation are “separate and distinct” from one another. The author clarifies that the most dangerous felons should be incapacitated. However, the problem lies with those individuals who are not dangerous to society and yet are still incapacitated and “consume precious correctional system resources which should be reserved for those offenders who must be incapacitated for our protection.”

[129] See Ivari, supra note 42.

[130] See Price, supra note 9, at Part 4. See also Umbreit, supra note 21, at Part 2 (considering how even with the great rate in which we punish our criminals, the United States’ crime rate is still extremely high. Therefore, if punishment alone was an effective way of dealing with criminals, then America should be one of the safest countries in the world.)

[131] See id. The United States’ prison system has become one of the countries fastest growing industries. The punishment budget in this country, is now larger that the education budget. Thus, victims are not afforded the same resources, as criminals are, and cannot be provided with adequate funding for victim service programs.

[132] See id.

[133] See supra note 128.

[134] See Price, supra note 9. “Incapacitation, unfortunately, must continue until we can learn how to generate change in such individuals.”

[135] Id. Victims, particularly of serious and violent crimes, have a natural inclination to demand revenge, which usually takes the form of incapacitation.

[136] See id. However, this natural inclination towards revenge typically dissipates after the victim realizes that revenge will not provide relief from the effects of the crime.

[137] See also Handbook on Justice for Victims, supra note 62. This handbook erroneously noted a potential downfall of victim-offender mediation by stating that the process is usually initiated at the offender’s request and the offender may pressure the victim into the process through this intimidating outreach.

[138] See Price, supra note 9.

[139] See Ivari, supra note 42. A victim’s choice to drop charges against his or her offender does not prevent the State from initiating criminal proceedings against the offender. The victim and the offender both benefit, as well as the judicial system, in a variety of ways. First, in most cases the victim still receives compensation through agreements reached in the mediation. Second, when victims mutually agree on this compensation, the courts do not need to spend valuable time reaching an agreement on the parties’ behalves. Third, the courts may take the offender’s voluntary participation in the mediation into consideration when imposing its own form of punishment on the offender, and opt for a lighter sentence.

[140] Handbook on Justice for Victims, supra note 62.

[141] Id. at 1.

[142] See From Pain to Power: The Trauma of Violence Leaves Its Mark, http://ojp.usdoj.gov/ovc/publications/infores/fptp/trauma.htm (last visited Jan. 7, 2004). See also Handbook on Justice for Victims, supra note 61. Victims generally go through four stages of emotions when conceptualizing a crime: victims are first left feeling somewhat in shock and denial; they are scared, angry, and helpless. Second, victims endure a period of disorganization marked by nightmares, guilt, depression, and lack of confidence. The third stage is a period of reconstruction and acceptance, which eventually will turn into the fourth stage of acceptance, normalization, and adjustment. These stages of victimization occur at different rates with each victim, some may pass through quickly; others may get stuck in a stage.

[143] See id. See also Handbook on Justice for Victims, supra note 62.

[144] See Handbook on Justice for Victims, supra note 62.

[145] Id. at 9. “The whole process of criminal investigation and trial may cause secondary victimization.”Id.

[146] See Umbreit, supra note 21, at Part 2. By labeling a crime as a crime against the State, the victims are often pushed to the side while the State pursues their own interests of doing justice. As a result, crime victims are often left feeling re-victimized; only this time instead of being a victim of their offender’s behavior, they are victimized by the State’s actions.

[147] See Susannah Sheffer, Index on Censorship, Beyond Retribution, (Jan. 2001) available athttp://www.mvfr.org/writings/beyondretribution.html (last visited Jan. 7, 2004).

[148] Id. at ¶ 8.

[149] See id.

[150] Id. at 1.

[151] IdSee also, Ron Lajoie, Amnesty Now, Breaking the Cycle of Violence: Renny Cushing and MVFR shift the debate on the death penalty , (1999). This article tells the story of a grieving man, Renny Cushing, whose father was brutally murdered in his home. Cushing describes how “the most difficult thing he ever had to do was ask someone to help him clean his father’s blood off the walls . . . However, he would not allow the murderer, to take the values his father had given him too.” Cushing always lived under the value system of “Thou shall not kill” and could not comprehend how people would, in empathy, bluntly say to him, “I hope they fry those people.” See id. http://www.mvfr.org/breaking.html (last visited Jan. 7, 2004).

[152] See id. In this article, Cushing asks:

In the aftermath of violence, how do we as a community respond? What we are being told is that the appropriate response is more murder and more violence. What does that do to us as a nation? I don’t really care what happens to murderers. I oppose the death penalty because of what it does to the rest of us.

Id.

[153] Price, supra note 18, at Part 7.

[154] See id. (explaining how victims or families of victims are left feeling unsatisfied, unjustified, and unhealed after their offenders were executed or sentenced to life. In addition, Price found that many of the victims felt like they had been “re-victimized by the workings of a criminal justice system that did not care about them. They needed much more than this punitive system of justice”).

[155] See id. â€œJohn experienced no relief from the hate and bitterness that had been burning inside him for so many years.” Id. at Part 7.

[156] See id. John and his offender prepared with the mediator before confronting one another. In the three-hour mediation, the offender expressed his shame and pain, and wished that he had been executed for his wrongdoing. In turn, John learned of his offender’s brutal childhood suffering and began to understand what drove him to commit the crime against his family.

[157] Id. John explained that the mediation “brought him a release from the thoughts and feelings that had seemed inescapable and it freed him to move on with his life.” Id. at Part 7.

[158] See Price, Supra note 102. See also Elizabeth S. Menkin, Life After Death , Victim-Offender Reconciliation Program Information and Resource Center, (Sept. 4, 1994), http://vorp.com/articles/lifeaft.html (last visited Feb. 23, 2003).

[159] See Elizabeth S. Menkin, Life After Death, Victim-Offender Reconciliation Program Information and Resource Center, (Sep. 4, 1994), http://vorp.com/articles/lifeaft.html (last visited Feb. 23, 2003).

[160] See supra note 62. See also supra note 142 (describing the four stages of emotions).

[161] Menkin, supra note 159 at ¶ 3.

[162] Id. at ¶ 8.

[163] See id.

[164] See id. at ¶ 9.

[165] See id.

[166] See Umbreit, supra note 21, at Part 2.

[167] See id. at Part 2, ¶ 1.

[168] See Menkin, supra note 159, at ¶ 15.

[169] Id. at ¶ 16.

[170] Id.

[171] See id. at ¶ 17.

[172] See id. at ¶ 21. The offender began to correspond with the family by sending condolence cards; she stayed sober; and she pleaded guilty, sparing the family the “agony of trial.” See id.

[173] Id.

[174] See id. at ¶ 29. Menkin’s father explained his hopes of forcing a positive outcome out of a terrible experience and not just to suffer the loss of his daughter. Menkin’s mother expressed her resentment that she attributed to the offender for taking away her daughter and subsequently the loss of her husband who was deeply troubled from the accident. Elaine’s husband expressed how he had lost his “partner in love and in work, and how Elaine had been robbed of her future at a time of wonderful personal, professional, and spiritual growth.” Id.

[175] See id. at ¶ 25. The offender spoke first in the mediation and apologized to the family.

[176] See id. at ¶ 33. See also Price, supra note 124, at Part 4. The parties signed and witnessed a contract, which incorporated a provision that satisfied each victim’s needs. The offender agreed to write weekly letters to her children while she was incarcerated. The offender also agreed to take classes in parenting skills. She agreed to work against drunk driving, attend Alcoholics Anonymous meetings on a regular basis, earn her high school equivalency degree, contribute ten percent of her earnings to charity, and to attend church. In addition, she agreed to write quarterly progress reports to the family. See also Price, supra note 19, at Part 4. Other examples of restitution agreements can contract for reimbursement of funeral expenses, psychotherapy, and other financial losses.

[177] Id. at ¶ 34.

[178] Id. at ¶ 35. He recorded in his journal how he “found himself walking with his arms and legs swinging freely and feeling he was a renewed man. He once again felt on top of things in a business meeting, alert and aware of little details and how they fit together.” See id.

[179] See Price, supra note 124, at Part 6. About fifteen months after the mediation, the offender still corresponded with family, completed her General Education Diploma (GED), and is the leader of her Alcoholics Anonymous group.

[180] See id. at Part 1.

[181] American Bar Association, supra note 11.

[182] See Price, supra note 124, at Part 1. See also Ivari, supra note 42. When either the victim or the offender has unwillingly agreed to participate, the effects will not mimic that of a voluntary mediation, and serious chances of re-victimization are highly likely.

[183] See Price, supra note 124, at Part 1. Assigning homework, which allows the participants to contemplate his or her feelings and determine what they want out of the mediations, can facilitate the ripening process.

[184] See Price, supra note 34. This period of extensive preparation may require months or even years of work with the mediators and parties before the victim and offender are ready for their face-to-face confrontation.

[185] Price, supra note 124, at Part 1.

[186] See id. The victim and the offender are given the opportunity to heal each other by sharing their own experiences and emotions connected to the criminal act.

[187] See id. (describing the different characteristics and goals from a typical mediation).

[188] See id.

[189] See id.

[190] See id. Having the support of the defense attorney can play a pivotal role in the mediation. The mediator must recognize that “the balance with the attorney is both sensitive and critical.”

[191] The victim, the victim’s advocate, or someone in the court system who has been handling the matter will initiate the contact.

[192] See Price, supra note 124, at Part 1. The offender’s defense attorney is potentially the only “official” on the offender’s side. Therefore, it is often the case the defense attorney assumes all the role of having all the decision-making power.