Mediation should be the primary approach in civil or non-criminal cases. This seems to be an emerging theme globally, and not just in India, as potential litigants become more educated about the benefits of “mediation first” and seek out competent mediators. Since this emergence, many people inside and outside the legal field are looking more closely at mediation in criminal cases, seeking answers to several very compelling questions.

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The first compelling question is “Why would any victim voluntarily agree to the mediation process?” One excellent reason is, because mediation is the only venue where the victim of a crime may get answers to the internalized “why” questions, especially “Why me?” Getting these answers humanizes the connection between victims and their perpetrators and gives them the opportunity to process the crime from the perspective of the offender.

The second compelling question is “Should an offender expect any reduction in punishment or forgiveness based on an apology or even participation in mediation?”

This is a highly charged question which creates answers along a multi-vectored continuum. One vector suggests that victims should respond in kind if they believe an apology is heartfelt. In Ken Sande’s “The Peacemaker,” forgiveness is an internalized process totally unconnected to an offender, meaning forgiveness benefits the victim by allowing them to achieve a personal moral level of contentment, and moves them beyond the victimization. This means there is no moral imperative in projecting empathy toward the offender; however, victims often respond in kind once they feel more humanized by the mediation process. A second vector holds that there is potential for re-victimization when a victim attaches an artificial obligation of forgiveness to an apology. A third vector holds the potential for offender’s victimization, based on the internalization of an anticipated entitlement of favorable treatment based on the apology.

In effect, there are few valid answers to the sentence reduction question. In the action potential for making the victim “whole,” the mediation projects well for both victim and offender. The “make whole” context stems from civil justice; however, in criminal context, being “made whole” link broader concepts. Humanizing the victim reduces fear and anxiety, allowing the victim to feel they can fully live their lives again. In criminal property damage cases, being “made whole” may involve restitution of many types beyond description here.

The third compelling question flips to the offender side of mediation. “Should the offender allocute prior to mediation, should terms of restitution be set prior to the mediation, or be in the hands of the victim to some degree?” This is a linked question that many jurisdictions mandate in their restorative justice programs, giving the offender access to mediation only after allocution. Admitting guilt is powerful and allows the offender the opportunity to humanize himself in the process of accepting the pain projected onto others. This act alone often compels victims to engage empathetically with the offender.

The three compelling questions noted address only the potential for healing by all parties, and whether the justice is served in the eyes of the victim or not. The modern criminal legal system views every criminal act as an offense against the whole of society, with the potential for mandatory sentences and public knowledge of all aspects of the case. This leads to the biggest question concerning mediation in criminal contexts, which is, how to treat confidentiality. Criminal statutes require public records on how offenses “against the people” are handled to protect the people, which may be obfuscated if confidentiality is held inviolate in a mediation concerning the offender-victim context.

This forces a return to the multi-vectored continuum scenario. Victims choosing to forgive or go lightly on their offenders, if given the option, may open the possibility of being seen as soft or weak. This may force the victim to psychologically be harder on the offender to offset this portrayal if they have no guarantee of confidentiality. On the other end of the continuum, failing to produce public record of the agreement may leave other members of society vulnerable based on lack of knowledge about a released offender.

These are only two possible problems with enforced confidentiality in criminal contexts, but they project a powerful message that mediation may not be the best answer for some types of criminal cases, especially those involving violent or repeated offenders.

Mediating a criminal case may become a hybrid to the plea-bargain process where the judge mandates the victim to be more than a material witness for the state, in effect, allowing the interaction between victim and offender to influence the court’s ultimate handling of the case. This would possibly motivate the offender to approach mediation more openly, and allow the victim with the opportunity to engage for all the prior reasons noted. So, where does that leave the title question?

In India, traditional justice has followed the same path as most of the Asia-Pacific region, one of elder guides and chooses acts for the betterment of many. Although this has been more directive, evaluative, or conciliatory justice, it still leads directly to modern forms of ADR, which includes mediation. A continuum of options for the greater good should be the guiding light for whether a criminal act may seek mediation. And protection of the public should mandate that conditional confidentiality must ensure those protections.

Yes, mediation may be a great option for handling criminal cases, if controlled properly through highly competent mediators. However, it certainly remains a topic to be explored further.

Mediation in most non-violent criminal cases should be supported, with the stipulation of the public interest preserved through the evolved well-being of both victim and offender.

 

Credits: Dr. Buddy Thornton