Consistency and Proportionality in Victim-Offender Mediation Agreements


by Caryn Saxon

July 2013

Caryn Saxon

As restorative victim offender mediation programs continue to gain ground within the criminal justice system, more community organizations committed to restorative justice values and initiatives are collaborating with traditional justice agencies and offices.  While these collaborations are mutually beneficial and socially transformative, inevitable tensions emerge when restorative and traditional models of justice engage one another within a community.  In this paper, we will examine one example of this – the question of consistency and proportionality in our response to offenders and crime – and explore ways in which bilateral (restorative) and unilateral (traditional) methods of resolution can amend this apparent conflict and remain collaborative partners in effectively bringing justice to their communities and its members responsibly and safely.
Restorative Justice refers to the practice of addressing crimes as conflicts (Christie, 1977; Wright, 2001).  Rather than solely focusing on the violation of law, restorative processes attempt to repair the harm of the offense by allowing those directly involved and impacted to mutually agree upon how the offender can best compensate and/or restore his/her victim, community, and self (Zehr, 2005; Zehr, 2002; Edgar & Newell, 2006).  Restorative Justice is commonly practiced as mediation or facilitated dialogue between the victim, offender, and other key stakeholders in the crime such as neighbors, family members, and/or friends of those directly involved in and affected by the offense (Zehr, 2005; Zehr, 2002; MacRae & Zehr, 2004).   
Traditional methods of justice, on the other hand, often remove or limit the victim and community from the proceedings of justice and rely upon the direction of laws, precedents, and social principles to impose decisions or sentences upon offenders in relation to their age, severity of offense, motivation, and degree of harmful intent (Johnstone, 2007; Okimoto, Wenzel, & Feather, 2009; Delgado, 2000).  While examples abound of the traditional system’s failure to produce consistent and equitable justice, consistency and proportionality do exist as theoretical values of justice as it has evolved in our collective and cultural consciousness, and, historically, one of the roles of the criminal justice system has been to uphold these values and ensure that punitive responses to crime are responsibly imposed within our society.
One effect of empowering victims, offenders, and communities with the task of deciding upon how to respond to crime within the confines of an intimate, highly contextualized mediation or dialogue process is that outcomes become inconsistent and offenders become less protected from disproportionate decisions regarding compensation.  For instance, two offenders of the same age may commit the same offense and cause similar degrees of harm within the community, both may admit guilt and express remorse, yet one may enter into a mediation agreement involving 15 hours of community service while the other agrees to 55 hours.  These kinds of inevitable scenarios bring up questions of fairness and equality in justice process and can be a problematic concession for a traditional justice agency or office wishing to accommodate restorative processes yet politically and socially unable to support and enforce disproportionate outcomes.      
As we engage this issue, I think we can first gain some perspective by acknowledging the fact that restorative and traditional methods of justice are fundamentally different and therefore can’t necessarily be equally assessed by the same measures and principles.  For example, the traditional justice system is largely retributive, meaning it is primarily concerned with determining guilt and imposing socially appropriate degrees and forms of punishment.  Restorative justice, on the other hand, is not retributive.  It focuses on how relationships, lives, and communities can be restored after crime.  Restorative agreements are not imposed but rather bilaterally created through dialogue to meet the individual needs of victims and offenders (Edgar & Newell, 2006; Okimoto, Wenzel, & Feather, 2009).   In this light, we can see that values such as consistency and proportionality have greater necessity in instances of retributive justice than they do in instances of mutually agreed upon plans of restoration.   As Edgar and Newell (2006) write, “In direct contrast to criminal law, in which the interests of impartial justice are served by treating like cases alike, restorative justice works with people in all their individuality and wholeness.  No restorative conference will ever have exactly the same outcome as any other conference, because conferences (unlike courtrooms) honour the individuality and uniqueness of each participant” (p. 13).  In other words, in restorative contexts, enforced consistency could result in the participants questioning the fairness and just nature of the mediation’s outcome, whereas consistency and proportionality in punitive contexts can increase our shared sense of fairness. 
But can we really purport to believe that restorative mediations and conferences are entirely devoid of punishment and retribution?  Often mediation agreements contain the exact same elements as unilateral sentences – elements such as financial restitution and community service.  In addition, it is unreasonable to assume that some victims do not come to restorative mediations with the intent and desire to punish in some way, shape, or form.  And finally, power imbalances are inevitable in victim offender dialogues wherein which an offender has admitted guilt to an offense and that offender may be younger or in some other way more vulnerable than the victim by way of race, gender, or socio-economic status, vulnerabilities which can also affect the victim.  In other words, when inconsistencies do emerge in victim offender mediation agreements it is important to ask if those inconsistencies are truly rooted in the individual needs of the participants, or if factors such as social bias, unrelated instances of victimization, or physical/mental disabilities may be contributing to agreements that appear disproportionate.    
These questions and issues need not create an impasse between restorative organizations and criminal justice agencies and offices, and they certainly don’t displace the positive and transformative potential of restorative processes in the field of criminal justice.  That being said, they do present an opportunity for traditional and restorative organizations and models to collaborate toward the formation of criminal justice policy and practice that empowers community members, meets individual needs, and still protects participants and the shared social principles we value.  While it is important that such collaborations be locally derived through open dialogue and the assessment of community needs and values, the following suggestions are offered as a starting point for consideration and discussion ~

 

Increased Mediator Training
An important component to restorative mediation programs is the involvement of volunteer mediators from the local community.  If proportionality and consistency in mediation agreements is of concern to a community engaged in restorative justice, additional trainings may need to be conducted to address this concern with the program mediators.  Community mediators could benefit from greater skill development when screening participants for bias, recognizing mental and social vulnerabilities, and more adeptly addressing power imbalances in victim offender dialogues.    

Implementation/Continuation of Pre-Mediation Meetings
Many mediators, particularly when working with victims and offenders, utilize a mediation model that includes individual pre-mediation meetings with both the victim and the offender.  These meetings are essential to creating safety in mediations involving criminal harm, and also allow space and time for a mediator to assess the needs and desires of the participants and prepare them for the restorative encounter.  It is important that a mediator discuss possible elements of the mediation agreement with both parties during this pre-mediation meeting and help the parties begin to articulate what kind of agreement would seem fair and appropriate to them.  While this is helpful preparation for the participants, it is also a chance for the mediator to assess proportionality and address any concerns with the mediation program’s staff prior to the mediation. 

Introduce a Flexible Metric     
If issues of consistency and proportionality exist within a restorative program to such an extent that participants are experiencing harm and/or social values are being threatened, program managers and collaborators may want to work together to design a metric (Delgado, 2000) flexible enough to suggest a frame of proportionality in victim offender mediation agreements while not influencing those agreements in such a way as to disempower the participants, their needs, and their mutual expression of justice.  This framework could operate, for instance, by directing the mediators to inform victims and offenders that for this offense it is suggested that your agreement include no more than 15 hours of community service; however if you both agree that a greater number of community service hours is necessary to repair the harm and create a fair agreement then you have the power and freedom to draft such a plan
When considering the implementation of a metric, it is vitally important that the voice of victims and offenders not be overshadowed by the authority and control of the traditional justice system.  If this should happen, the restorative process can no longer be deemed restorative.  Suggesting a frame for mediation agreements can be a welcome guideline for victims and offenders who are typically unsure about how to reasonably translate reparation into dollars and cents or community service hours.  A consistent framework also cuts back on the temptation of individual mediators to break neutrality and make suggestions regarding mediation agreements to participants based on their past mediation experience or personal thoughts and feelings.      
In closing, the most important action we can take in regards to these kinds of issues and concerns is to discuss them openly, keeping in mind our shared desire to bring opportunities for justice and resolution to our community and it members.  Collaboration represents a unique chance to co-create better and safer communities and transform policy and process to more effectively utilize our collective wisdom and our shared resources.      

References
Christie, N. (1977). Conflicts as property. The British Journal of Criminology, 17(1), 1-15.
Delgado, R. (2000). Goodbye to hammurabi: Analyzing the atavistic appeal of restorative justice.
Stanford Law Review, 52, 752-775. 
Edgar, K., & Newell, T. (2006). Restorative justice in prisons: A guide to making it happen.  Winchester,
U.K.: Waterside Press. 
Johnstone, G. (2007). Critical perspectives on restorative justice. In G. Johnstone & D. W. Van Ness
(Eds.), Handbook of restorative justice (p. 598-614). Portland, OR: Willan Publishing.  
MacRae, A., & Zehr, H. (2004). The little book of family group conferences new zealand style: A hopeful
approach when youth cause harm. Intercourse, PA: Good Books. 
Okimoto, T.G., Wenzel, M., & Feather, N.T. (2009). Beyond retribution: Conceptualizing restorative
justice and exploring its determinants. Social Justice Research, 22, 156-180.
Wright, M. (2001). Justice for victims and offenders: A restorative response to crime. Winchester, U.K.:
Waterside Press.
Zehr, H. (2002). The little book of restorative justice. Intercourse, PA: Good Books.
Zehr, H. (2005). Changing lenses: A new focus for crime and justice.  Scottdale, PA: Herald Press.  

 



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Biography




Caryn Saxon is an Instructor with Missouri State University’s Department of Criminology and Criminal Justice.  She is also the Administrative Director of the Conflict and Communication Center of the Ozarks.



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