THE MEDIAION & DIALOGUE PROCESS:
PHASES AND TASKS
Mark Umbreit
Center for Restorative Justice and Peacemaking
School of Social Work, University of Minnesota
Purposes of
Victim Offender Mediation and Dialogue
1.
To provide a restorative conflict resolution process which
actively involves victim and offender in repairing the emotional
and material harm caused by a crime.
2.
To provide an opportunity for victim and offender to discuss the
offense, get answers, express feelings, and gain a greater sense of
closure.
3.
To provide an opportunity for victim and offender to develop a
plan addressing the harm caused by the crime.
Potential Risks & Benefits:
VICTIM OFFENDER MEDIATION & DIALOGUE
VICTIM POTENTIAL RISKS
1.
Bringing up uncomfortable feelings related to the victimization.
2.
Re-experiencing the initial anxiety, trauma of related symptoms.
3.
Learning painful new information about details related to the crime.
4.
Not seeing the degree of desired remorse in the offender.
5.
Unrealistic expectations in regard to the offender's rehabilitation.
Victim Potential Benefits
1.
Expressing anger and pain directly to person responsible for it.
2.
Learning new information about the crime that is needed.
3.
Seeing remorse in the offender.
4.
Experiencing a greater sense of closure.
5.
Feeling more powerful and in control of one's life.
Offender Potential Risks
1.
Re-experiencing anger, frustration, loss of control associated
with committing the crime.
2.
Reinforcement of shame and despair through learning the
effects of the crime on the victim.
3.
Unrealistic expectations about the victim's response (ability to
work through their feelings, ability to accept offender as human
being despite behavior)
4.
Feeling vulnerable as a result of expressing some of their true
feelings of shame about what they did, or about their life
circumstances
Offender Potential Benefits
1.
Learning the real impact of their behavior on others and moving
beyond denial to taking responsibility.
2.
Building self-esteem through taking action to make things right
with their victim.
3.
Having a chance to tell one's story, to represent oneself, to be
heard.
4.
Having a say in determining a plan for restitution.
5.
Feeling more powerful and in control of one's life.
Basic Elements of
Victim Offender Mediation & Dialogue
• Pre or Post Adjudication Referral
• Requires Admission of Guilt by Offender
• Offender Participation Should be as Non-Coercive as Possible
• Victim Participation Must be Voluntary!!
• Mediator Meets With Each Party Separately Before Date of
Mediation
• Involves Face to Face Meeting
(Unless this is not appropriate because of culture of parties)
Basic Elements of
Victim Offender Mediation & Dialogue
(continued)
• Empowers V/O to Resolve Conflict Through Dialogue & Mutual
Aid
• Involves Neutral Trained Mediators
(Usually community volunteers)
• Two Part Agenda:
Discuss Facts / Feelings
(Storytelling and dialogue)
• Develop Restitution Plan
(Conflict resolution and closure)
Effective Listening Techniques
• Be Comfortable Physically
• Eliminate Distractions
• Make Eye Contact
• Watch Body Language
• Do Not Be Judgmental
• Ask Questions to Clarify
• Restate What You Understand is Being Said / Paraphrase
• Summarize Basic Viewpoints
Four Phases of
Victim Offender Mediation Process
Task
Responsibility
• 1.
Intake Phase
Staff
• 2.
Preparation for Mediation Phase
Mediator
• 3.
Mediation Phase
Mediator
• 4.
Follow-Up Phase
Program Staff
and / or
Mediator
Preparation For Mediation Phase
• First: Call / Meet With Offender
Listen to their story, explain process, secure consent to
participate, and prepare for participation.
• Then: Call / Meet With Victim
Listen to their story, explain process, secure consent to
participate, and prepare for participation.
• Arrange and Schedule Mediation Session
Calling the Victim/Offender
(First Contact by Mediator)
• Identify Yourself.
• Refer to the Letter Sent & the Program You Work With.
• Emphasize that this is a Program to Help the Victim and to Allow the
Offender to Make Amends.
• Avoid Use of the Word “Reconciliation” or “Forgiveness” (Far Too
Presumptuous).
• Primary Goal is to Schedule a Separate Meeting with Victim or Offender
to learn more about what happened & to explain the program.
• Emphasize the Decision to get Involved in the Program Can be Made
Later.
• Use Assertive but Cooperative / Sensitive Communication Style.
• Be Prepared to Provide Information About the Program, if Needed, But
Still Emphasize the Need for a Meeting.
(Trust is built through Face-To-Face Interaction!)
Initial Separate Meetings With
Victim & Offender
1.
Introduce Yourself Again, With Quick Reference to Program.
2.
Listen to Their Story (Try to get in a listening mode, first)
“What actually happened on the night of the burglary?”
3.
Explain the Program in a Non-Jargon Manner.
4.
Encourage their Participation, but Do Not Coerce or Pressure.
5.
Mention that “Many Victims /Offenders Find it Helpful to Meet
and Work Things Out, Although it is Not Meant for Everyone It’s Your Choice.”
6.
For the Offender: (If they agree to participate) Assess Their
Ability to Pay Restitution and Willingness to Consider Personal
Service Work or Community Service Work.
Initial Separate Meetings With
Victim & Offender
(continued)
6.
For the Offender: (If they agree to participate) Assess Their
Ability to Pay Restitution and Willingness to Consider Personal
Service Work or Community Service Work.
7.
For the Victim: (If they agree to participate) Assess Their Need
for Restitution and Willingness to Consider Personal Service
Work or Community Service Work.
8.
Coach on How to Respond to Questions During Mediation, If
Either Victim or Offender are Very Non-Expressive, Express
Intense Feelings, or are Highly Aggressive.
9.
Call Back Later if More Time is Needed to Think About It
Mediation Phase
• Conduct Mediation Session:
Introductions / Explain Role.
• Discuss What Happened & How People Felt About It.
(Have each person tell their story, followed by questions and
concerns).
• Discuss Losses and Need for Restitution.
• Secure Signatures on Restitution Agreement.
• Transmit Agreement to Program Coordinator.
Mediator Functions
• Instilling Ownership and Motivation
• Regulating Interaction
• Aiding Communication
• Monitoring the Process
Suggested Agenda for
Victim Offender Mediation Session
• Introduce Everyone
• Explain Role as Mediator
• Explain Procedures
• Explain Ground Rules
• Discuss What Happened and Impact on Parties
• Discuss Losses and Need for Restitution
• Develop Restitution Plan
• Sign Agreement
• Schedule Follow-Up Meeting, If Appropriate
• Close Mediation Session, Thank the Parties for Their
Participation
Starting the Mediation Session
• Introduce Everyone / Arrange Seating
• Explain Your Role as a Mediator:
“To help you talk about what happened and work out a possible restitution
agreement’. I am not a court official and will not be requiring you to agree
to anything.”
• Explain Ground Rules:
No interrupting each other, etc.
• Identify the Agenda:
Discuss What Happened & Impact on Parties
Discuss Losses / Plan for Restitution
• Emphasize that any Restitution agreement Reached Must be Considered
Fair to Both
• Initiate Direct Communication Between Victim and Offender:
“Mrs. Smith, could you tell John what happened from your perspective and how you
felt about the burglary?”
Transition From Talking About Event to
Negotiating Restitution
• Has Discussion of What Happened and How People Felt About it
Concluded?
• Allow Additional Time / Silence, if Needed
• Ask if There are any Additional Concerns Either Person Would Like to
Express Before Moving on to Discussing Losses and Negotiating Restitution.
Pause.
• Ask the Victim to Identify Specific Losses
• Ask Offender’s Perspective on the Losses
• Be Prepared to Help Identify Options for a Restitution Agreement:
Financial
Personal Service for Victim
Community Service
• Terms of Restitution Agreement Must be Considered Fair to Both Parties
Writing the Restitution Agreement
• Read Back What you Understand to be the Terms of the Agreement,
Before Writing
• Use SAM Criteria:
Specific
Attainable
Measurable
• Key Elements of Restitution Agreement:
Form (Money, Work, etc.)
Amount (Dollars, Hours, etc.)
Timetable (Weeks, Months, etc.)
• After Writing Agreement, Have Each Party Review it and Sign it, Unless
Parent Requested Parental Review Before Signing
• Leave a Copy with Each Party
Forms of Restitution
• Financial Payment to Victim
• Work for the Victim
• Work for the Victim’s Choice of Charity
• Offender Enrollment in Intervention Program
• Combination of Above
Characteristics of Victim Offender
Follow-Up Meetings
• Less Structured / More Informal
• Frequency (Depends on Case)
Mid-Contract Review
Renegotiation of Agreement
And / Or Close-Out Meeting
• Formal Agenda:
Monitoring of Restitution Agreement
• Informal Agenda:
Strengthening of Conflict Resolution Process and
Opportunity
for Closure
Potential Benefits of
Victim Offender Follow-Up Meetings
• Strengthening of Accountability
• Further Humanizing of Process
• Further Breaking Down of Stereotypes
• Monitoring of Contract
• Direct Payment of Restitution, if Allowable
• Re-Negotiation of any Problem Areas in the Restitution Agreement
Key Strategic Issues Of Offering
Victim Offender Follow-Up Meetings
• When to Suggest Follow-Up Meeting
• After Restitution Agreement is Signed, but Prior to End of Mediation
Meeting
• Discussion of Follow-Up Opportunity:
Purpose to Monitor Completion of Agreement
Be Assertive
But, Don’t Mandate or Require
Guidelines For Victim Sensitive Mediation and
Dialogue with Offenders
1.
Victim safety
2.
Victim choice to participate and throughout entire process.
3.
Participation by selected offenders
(Do they admit guilt or feel remorse?)
4.
Approval of parent(s) for participation of juveniles.
5.
Offender choice to participate.
6.
Victim support (i.e., friend, family members) during mediation,
if desired.
7.
Careful and extensive in person victim preparation by mediator.
8.
Offender support (i.e., family members) during mediation, if desired.
Guidelines For Victim Sensitive Mediation and
Dialogue with Offenders
(continued)
9.
Careful and extensive in-person offender preparation by mediator.
10. Use of victim sensitive language (avoid words like forgiveness,
reconciliation, “you should”).
11. Empowering the victim through:
offender information during pre-mediation session
continual presentation of choices in process
have victim initiating the initial storytelling phase of mediation
session (unless they prefer not to)
option to terminate the process at any point
12. Reality testing victim expectations during pre- mediation session with
mediator.
13. Use of a humanistic/transformative model of mediation which
emphasizes dialogue and separate pre-mediation sessions between the
mediator and each party, not the more common settlement driven civil
court model.