THE POTENTIAL FOR MEDIATION IN CRIMINAL CASES

This blog post is the last of this series about mediation.  My prior two posts addressed what happens after mediation in family cases and civil cases.  This post discusses the potential for mediation in criminal cases and quasi-criminal cases.  Today, we’ll move away from our prior question: “What happens after the mediation?” to a more basic question:  “Can mediation be included in a criminal case?”

Brenda Waugh works with both victims and offenders in restorative justice.

A criminal case begins when the state brings an action against a person for violating a criminal law and the consequence for that violation is a fine or incarceration.  The victim is not a party.  Only the state and the defendant are parties. In juvenile cases, a minor is the person charged with criminal wrongdoing and the matter is prosecuted by the state, but the procedures and focus are different than in adult cases.  While child abuse and neglect cases are not criminal cases, they are often considered to be “quasi-criminal” due to the involvement of the state and the important interests that are at stake.

Mediation has not historically occurred in criminal cases or quasi-criminal cases in the United States.  However, in the late 20th century, processes similar to mediation became employed in some cases.  These processes resemble mediation because they are usually voluntary, inclusive, informal, and allow for a more expansive list of options to resolve the underlying problems.  While mediation is almost always beneficial in civil cases, criminal cases must be evaluated on a case-by-case basis to determine if they are suitable for these processes.

  • Victim Offender Dialog.  In the 1990’s victims in many areas were given the option of participating in ”victim offender mediation.”  Today, those meetings are referred to as “victim offender dialog” and allow for a meeting between the victim and offender when both agree to the meeting.  It provides an opportunity to discuss the wrongdoing.  The victim-offender dialog may occur at any time during the proceeding, even after the defendant has been convicted and sentenced.    You may watch video of a victim-offender dialog, “Meeting with a Killer,” by clicking here.  However, it is important to remember that a victim offender dialog is not suitable in many cases and must be agreed to by both the victim and offender before being considered.
Family Group Decision Making often keeps a family together.
  • Family Group Conference.  In about 150 communities in the U.S., juveniles who are charged with a crime have the opportunity to participate in a family group conference. Rather than rely on the court system to develop the terms of an improvement period, in the FGC the extended family and community meet to discuss the wrongdoing and develop a plan to work with the juvenile to get him or her back on track. 
  • Family Group Decision Making.  A process similar to the Family Group Conference is followed in many states, such as Oregon, in child abuse or neglect cases.  Rather than having the court, guided by social workers, impose a program, the family meets with professionals and extended family to develop a plan to improve the conditions within the family that are causing deficiencies or problems.  Further information about Family Group Decision Making is available here

If you are interested in learning more about these processes or bringing them to your situation, please contact our office and we will provide you with more information and work with you to determine if it is possible to include the process in your case.