The Peacemaking Process: How Reconciliation Programs Work
Restorative justice projects are experimenting with four different approaches (see Dzur, 2011; and Armour, 2012). The most numerous is victim– offender mediation. Both parties engage in a structured dialogue that is facilitated by a trained mediator. This intermediary is more often a trained
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volunteer than a criminal justice professional. The mediator’s goal is to assist the disputants to arrive at a mutually acceptable settlement that heals their strained relationship. A second approach involves a community board, a small group of local residents, who meet with victims and offenders separately, in search of common ground. Two additional approaches draw upon traditional ways of bringing estranged parties together: peacemaking circles and family group conferencing. The use of overlapping peacemaking circles (also called “sentencing cir- cles” or “repair of harm circles”) is derived from Native American tribal culture in the United States and Canada. Frank discussions take place between the victim and his support system, the offender and his family, and community members. Each person in turn speaks about what led up to the violation of a law. Then the groups merge into a disposition circle that develops a consensus about how to restore harmony to the afflicted individuals, their relatives, and their neighbors. A follow-up circle monitors the wrongdoer’s progress in making amends (OJJDP, 1998b; Zehr, 1998; Pranis, 1999; and Armour, 2012).
Family group conferencing is the fourth means of conflict resolution that is gaining adher- ents. Originally, it was developed by the Maori, the indigenous people of New Zealand. It has been adapted to resolve juvenile delinquency cases there and in Australia. Run by a trained facilitator, the conference begins with the wrongdoer under- going reintegrative shaming by describing the inci- dent to an assembly of relatives, friends, and neighbors. Then the victim explains how this event caused distress, injuries, and losses. Other members of the community fill in details about the impact on their lives. The offender begins to realize how his actions caused hardships and accepts responsibility for taking steps to repair the damage. After the victim suggests desired outcomes, the entire group discusses ways to solve the problem. By the end of the conference, a written settlement sets forth the community’s expectations about the constructive actions the wrongdoer is obliged to undertake to undo the harm he inflicted on others (Bradshaw and Umbreit, 1998; and Zehr, 1998). In
cases where the victim has suffered a burglary or robbery and the offender is a teenager caught up in the juvenile justice system, family group confer- encing might also involve a representative from the police department and the local prosecutor’s office as well (Baliga, 2012).
Making restitution, in monetary payments from earnings or by performing direct personal services, is a symbolic gesture that is a prerequisite for reconcili- ation and reacceptance into the community. Reparations not only help victims recover from the aftershocks of predatory incidents but also provide the basis for forgiveness. The government— through its criminal justice agencies—can strive to maintain order and protect lives and property, but only the community—through its local institutions and traditions—can encourage reintegration. A neu- tral third party can facilitate and oversee the process of restoring harmonious relations better than an agent of the state—such as a prosecutor, judge, or probation officer who coerces both parties to agree to certain terms (Umbreit, 1989, 1990; Van Ness, 1990; Wright, 1991; and OVC, 1997).
The kinds of cases considered appropriate for mediation and conflict resolution have grown steadily since the first projects were initiated. Orig- inally, guidelines restricted the types of matters that were referred to neighborhood justice centers to noncriminal quarrels between people with ongoing relationships. Then the scope of eligible cases was broadened to include such misdemeanors as harass- ment, simple assault, petty larceny, and vandalism, in which the disputants had committed retaliatory acts against each other as part of a simmering feud. Such cases of shared responsibility were not suitable for criminal justice processing because the adversary framework imposed a winner take-all format that resulted in an undeserved victory for one party and an unjust defeat for the other.
Over the years, the nature of the relationship between the injured party and the offender rather than the nature of the offense became the single most important criterion for diverting cases out of the criminal justice system. Neighborhood justice centers began to handle acts of violence unleashed by offenders who knew their victims. Eventually,
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even violent incidents perpetrated by complete strangers were considered appropriate cases for face-to-face meetings. Some programs go as far as bringing together for group sessions victims whose cases were never solved and offenders convicted of harming people who don’t wish to participate (Umbreit, 1989; and Wright, 1989, 1991).
Most programs treat reconciliation as the desired outcome of a process that has four distinct phases: case selection, preparation, mediation and negotiation, and monitoring during the follow-up period. The healing process begins when a case manager selects cases that seem suitable. Next, a trained mediator (either a staff member or a volun- teer) contacts the complainant and then the accused to explain the mechanics of the program, discuss the nature of the charges, and test their willingness to participate in a face-to-face encounter. If they both agree, the mediator meets with each side sep- arately and then brings the two disputants together—at the victim’s home, at the jail where the defendant is being detained, or at the program’s office. At their conference or dialogue, both parties vent their emotions and share their reactions to the crime and the way it was handled by the criminal justice system. After that, they focus on the damage that was done. They attempt to hammer out a mutually acceptable arrangement in which the offender pledges restitution to cover the injured person’s expenses. After the meeting, the mediator remains in contact with both parties, supervising and verifying that the written contract is being completely fulfilled. The agreement usually requires that the wrongdoer make payments from earnings, perform useful and needed personal services, or undertake community service work to benefit a charity (Galaway, 1987; Coates, 1990; Umbreit, 1990, 1994; and OJJDP, 1998b).
The heart of the process is the encounter between the person who was hurt and the person who harmed him; it takes place in a structured and secure setting—often at the program’s headquarters, a community center, library, or house of worship but occasionally in a courtroom or the victim’s home. Usually, each side has met individually with the mediator. The mediator, typically an
uncertified volunteer with at least 30 hours of train- ing and experience, tries to make both parties feel comfortable, facilitates their dialogue, and assists them to find common ground.
At the outset, the injured party describes how the illegal act inflicted emotional, physical, and financial harm, and asks questions like, “Why me? What did I ever do to you?” and “How could I have avoided this?” The wrongdoer then tells his side of the story, often in the presence of his par- ents. By the end of the exchange, the wrongdoer comes to appreciate the error of his ways, accepts responsibility, expresses genuine remorse, apolo- gizes, and agrees to try to restore the person who was harmed to the condition he was in before the crime occurred. The mediator, the program’s staff, or a probation officer supervises the repayment pro- cess during the follow-up period. In cases where compliance lags, continued contacts and renegotia- tion of the settlement may become necessary. After restitution obligations have been fulfilled, reconcil- iation becomes a real possibility (see Umbreit and Greenwood, 1998; and Price, 2002).
The majority of victim–offender reconciliation programs are run by private nonprofit organizations rather than criminal justice agencies, according to a survey carried out during the mid-1990s. Programs administered by private, community-based groups made up the largest single category (more than 40 percent). Nearly 25 percent were overseen by reli- gious organizations. Criminal justice agencies ran the remainder: probation departments (about 15 percent), corrections departments (nearly 10 per- cent), and police forces and prosecutor’s offices (a few percent each). Almost half of all programs dealt with both juvenile and adult offenders; about 45 percent handled only delinquency cases; and nearly 10 percent only supervised adult lawbreakers (Umbreit and Greenwood, 1998).
Local and state governments were the most fre- quent primary sources of funding. The federal gov- ernment, faith-based organizations, foundations, private charities, and individual contributors also helped to pay for operating expenses. A typical pro- gram had a relatively small budget of just over $50,000, employed two full-time staff members,
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and relied on 35 or more volunteers to carry out its mission. On average, a program handled about 135 cases concerning juvenile offenders and supervised around 75 involving adults. Roughly 33 percent of the offenses were felonies, and the remaining 67 percent arose from misdemeanors. The most com- mon crimes were vandalism, minor assaults, thefts, and burglaries. But about 33 percent of the pro- grams reported that they occasionally handled more serious offenses, such as attacks leading to physical injuries and assaults with a deadly weapon. Some programs even dealt with sexual assaults by strangers, attempted murders, negligent homicides, and manslaughter. Probation officers, judges, and prosecutors referred all kinds of cases to mediation (Umbreit and Greenwood, 1998).
In every program, victims participated volun- tarily, and they could quit at any time. In about 20 percent of the programs, offenders had to take part if the people they harmed wanted them to, and they had to admit their guilt before proceeding in 65 percent of the programs. About 33 percent of all wrongdoers were participating as a condition of diversion before adjudication. A little more than 25 percent had been found guilty in court but had not been sentenced yet, and an equal percentage was attending as part of their sentence. Of the cases in which victims and offenders met in the presence of a mediator, nearly 90 percent were settled by a written agreement, and the over- whelming majority of offenders completed their obligations successfully. However, program direc- tors reported that a variety of problems plagued their operations. Securing adequate funding from private and public sources presented a continuing challenge. Receiving a steady flow of appropriate referrals from criminal justice agencies required maintaining good working relationships. Cultivat- ing support within the community demanded an ongoing dialogue with the advocates of retributive justice. Similarly, convincing angry victims to give restorative justice a chance required patience to overcome their initial resistance (see Umbreit and Greenwood, 1998).
Advocates for restorative justice place a great deal of emphasis on the specific interactions and
actual processes that take place when the offender encounters the victim. For example, eye contact can express a more profound apology than words, and facial expressions and body language can be very revealing. Videotaping the dynamics of con- ferences allows practitioners to analyze the dia- logue, spot turning points and emotional breakthroughs, and to discover why some confer- ences achieve mutually agreed-upon settlements that will stand the test of time while others don’t (Wright, 2014).
In the United States, there are nearly 400 pro- grams based on victim–offender mediation, more than 225 community board programs, close to 100 family group conferencing programs, and fewer than 20 sentencing circles in operation in various jurisdic- tions. The states with the greatest number of restor- ative justice programs are California, Pennsylvania, Minnesota, Texas, Colorado, Arizona, Ohio, New York, Alaska, and Vermont. However, restorative justice is not an option in about 85 percent of all counties within the United States (Dzur, 2011).
Evaluating Efforts at Reconciliation
In theory, victim–offender reconciliation offers advantages both to parties and to their crime- plagued communities. A number of criteria for suc- cess can serve as the focus of evaluation research. Victims ought to have opportunities to release pent-up feelings and get answers to troubling ques- tions. In addition to emotional catharsis, victims should be able to leave the negotiations with a sat- isfactory restitution agreement in hand. For offen- ders, the encounter offers an occasion to accept responsibility, express remorse, and ask for forgive- ness. Probably more important to most perpetrators is the chance to substitute restitution obligations for time behind bars. For the community, the prag- matic benefit is that negotiated settlements relieve court backlogs as well as jail and prison overcrowd- ing and eliminate the need to build more cells to confine greater numbers of convicts at the tax- payers’ expense. A less tangible but significant spiri- tual dividend is the fostering of an atmosphere of tolerance, understanding, and redemption within
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the community (Coates, 1990; Umbreit, 1990; Viano, 1990b; and Sullivan and Tifft, 2001).
Evaluations of different programs highlight many important issues. Offender recidivism rates may not be any lower for adult participants in restorative justice experiments (see Niemeyer and Shichor, 1996; and Hansen, 1997), but juveniles may benefit from making restitution. Youthful offenders who passed through mediation commit- ted fewer and less serious offenses than a control group of their peers during the one-year follow- up period (Umbreit, 1994). As for the willingness of people who suffered harm to meet with juveniles placed on probation for property crimes, the per- centages ranged from 54 percent to 90 percent. Reportedly, nearly 95 percent of the meetings led to a mutually acceptable agreement. The average amount of money the adolescents pledged to pay their victims ranged from about $175 to $250. The proportion of the contracts that were carried out to the victims’ satisfaction ranged from a low of 52 percent in one program to a high of 91 percent in another. In general, research findings show that many victims volunteer to participate in face- to-face confrontations, very few mediation sessions become emotionally explosive, and most victims are not vindictive and do not make unreasonable demands (Galaway, 1987).
Another evaluation of four mediation projects attached to juvenile courts uncovered high levels of client satisfaction, approaching 80 percent of the victims and nearly 90 percent of the offenders. Roughly 85 percent of the participants felt that the process of mediation was fair to both parties. Before meeting their offenders in person, nearly 25 percent of the victims confided that they were afraid of being preyed upon again by the same indi- vidual; after the mediation session ended, only 10 percent still harbored that fear. More than 80 per- cent of the delinquents successfully completed their negotiated restitution arrangements, compared to less than 60 percent of similar offenders ordered to make restitution by juvenile court judges who didn’t directly involve victims or use mediation (Umbreit, 1994). Victim dissatisfaction surfaced in those programs that failed to follow up to see to it
that restitution pledges were fulfilled (Coates and Gehm, 1989).
Mediators received higher ratings for fairness than judges, according to several evaluations that compared cases handled at selected ADR programs to similar cases adjudicated in court. Most dispu- tants reported that they left the neighborhood jus- tice centers believing that their differences had been settled. The compromise solutions worked out at centers were adhered to more faithfully than dispositions imposed by criminal or civil court judges (Cook, Roehl, and Sheppard, 1980; Davis, Tichane, and Grayson, 1980; and Garofalo and Connelly, 1980). Similarly, meetings between victims and juvenile delinquents and their parents that were facilitated by trained police officers received high satisfaction ratings from all parties (McCold, 2003).
Proponents of mediation in pursuit of reconcil- iation interpret these findings as evidence of a solid, positive track record. They conclude that the experimental stage can be judged a success and that the time has come for a substantial reallocation of resources that would enable these programs to handle many more cases. They point to polls that demonstrate that considerable public support favors restitution as an alternative to imprisonment, at least for cases involving property crimes and minor assaults (Galaway, 1987, 1989).