Has Mediation Crashed?


by Robert Benjamin

March 2006

Robert Benjamin

A story picked up from the Associated Press that was published by The Seattle Times on March 2, 2006 and made national news, is titled “Oregon Teen Heads to Juvenile Detention For Pinching Another Boy’s Nipple.” The first line of the article gives the surface story: “A teen who pinched and twisted another boy’s nipple while standing in line at a deli has been sentenced to four days in juvenile detention because he refused to write a letter explaining his actions.” Reading this, I’m already up in arms when it gets worse. It appears from the article as if this youth has been in a mediation program that required the “offender” to describe his “crime” in detail and explain his “thinking errors.” My worst fears surged forward as I conjured up images of Stalinesque tactics and a government bureau of thought police.

To protect myself from myself, and my propensity to shoot first and aim later, I interviewed Mary Miller, the Executive Director or Mediation Works. As per usual, there’s the exterior -- what’s all too easy too believe -- and then there’s the interior space of complexity that takes some time to sort out.

The movie “Crash,” the recent recipient of the Academy Award for Best Picture, offered a similar experience and I’ve found a useful reference for the inside/out kind of trick our minds can play on us. The remorseless racist L.A. cop who bullies, intimidates, and scandalizes a Black couple in scene one, and leaves me hoping he gets shot, is one and the same cop who risks his life to save the woman in scene five. Things may not be what they seem, or they may be, but there is more to it.

Dedicated professional mediators were particularly susceptible to the outrage this article seemed to report. Mediation had crashed, or so it seemed: at first blush, there appears to be an implicit suggestion that this kid was being sent to detention for failure to mediate and on the order of a mediator. This ‘mediation’ seemed to be a perfect illustration of my worst fears of the co-option of the process by courts. It had become institutionalized as was nothing more than another means of social control. Notions of personal autonomy and self determination seemed nowhere in sight and mediation, as I knew it, was twisted beyond recognition.

“But, who you gonna believe, me or your lying eyes?” Reading carefully, between the lines, the article never makes specific reference to this matter having been the subject of mediation, and in fact, it was not. It merely makes reference to Mary Miller, the Executive Director of Mediation Works, a non-profit organization. While she also works as a mediator in many matters, this program was not about mediation and her staff person was not mediating in this matter (and there was no pretense of doing so). Any confusion as to her role was not hers but that of a careless reader. She was merely a contractual service provider in a “victim-offender” diversion program with a local Juvenile Court in Jackson County, Oregon.

This program is not unlike many nationwide where youths, referred by the Juvenile authorities, are required to attend some number of classes for ‘re-education’ of one kind or another. In fact, in an effort to avoid just this kind of confusion, when there are meetings between the “victim” and “offender,” she terms them “clarification meetings,” to clearly distinguish them from “mediation sessions.”

I also found myself tending to minimize this matter as much ado about nothing, to call it dismissively, mere horseplay, or ‘political correctness’ run amok, and to disallow what was (according to the younger boy’s parents) both humiliating and emotionally painful impact of the action on the person targeted. At the same time, while legally speaking, the unconsented touching of one person by another is "harrassment" if not "assault," to call it a full fledged “crime,” as they do in Jackson County and many other places, carries at least a tinge of hyperbole. The matter should be taken as seriously, as the most sensitive person needs for it to be taken, be it crime or horseplay. The article is so caught up in making this case out to be nothing but silly that it fails to explore why this matter was referred to police authorities and the courts in the first place. My sense is that the child injured was 2 years younger and apparently quite frightened.

For me, the real issue is further under the surface and totally missed, not only in the article, but in the discussion of this matter. My investigation led me to clearly believe that the legalization of this matter to the level of absurdity to which it has risen has as much to do with parental pushing and posturing as it does their a son’s altercation. The professionals contribute by playing along. Could there or should there have been consideration given to the injured child’s parents taking it upon themselves to simply talk directly to the parents of the child who has acted inappropriately? Is it possible that this matter is being driven less by the kids involved and more by the parents’ insistence, if not pursuit of. Nowadays, everything is a potential script for reality TV and media sensationalism.

Ironically, and not surprisingly, whatever injury one or the other suffered in the original incident, it appears to be being eclipsed by the secondary trauma of how the matter is being managed or not being managed. This secondary trauma may well be worse. The media attention causes this incident to take on a life of it’s own that is quickly moving beyond the control of the parties involved. In fact, that apparently is happening in this case. The community is being fractured and other students are being drawn into the fray and taking sides for or against the sentence imposed and for or against the “victim” or the “perpetrator.”

Finally, this all too short article goes seriously off course and leaves little room for discussion of careful and important distinctions. Mary Miller notes that the program does not require a referred youth to admit criminal intent, as the article reports, but merely to accept being accountable for the impact of their actions, whatever their intent might have been. The idea of allowing the opportunity for someone who has been injured to meet in a safe environment with the person who is the cause of that injury remains viable and important.

Victim/offender diversion programs continue to be troublesome for purists like me for two reasons. First, any time I hear terms such as “thinking errors” and the use of labels, such as “victim,” “offender,” and “bully,” notions of therapeutic tyranny loom large in my mind. And, second, I have the same concerns about the inevitable confusion of roles between mediators and counselors administering these kinds of programs as I do about the practice of “lawyer-mediators” or “judge-mediators” that is all too common. I know “bright line” discriminations are unrealistic, but I remain frustrated with the many practitioners who intentionally or inadvertently blur the roles. I’ll leave that discussion for another time.

To my mind, this case is not about “mediation gone bonkers,” as I initially wanted to believe, but rather, the absence of the opportunity for quality mediation to be available in the community and away from the courthouse. This case is more about our cultural proclivity to avoid conflict and to believe that someone else should be responsible for our safety. Parents, schools, and the media, all want to find someone else to blame instead of taking responsibility. The ultimate irony is that Mediation Work's program is premised on teaching kids to be accountable for their behavior and accept responsibility for the impact of their actions, when many of the adults she must deal with day to day, shirk that responsibility.



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Biography




Robert Benjamin, M.S.W., J.D., has been a practicing mediator since 1979, working in most dispute contexts including: business/civil, family/divorce, employment, and health care.  A lawyer and social worker by training, he practiced law for over 25 years and now  teaches and presents professional negotiation, mediation, and conflict management seminars and training courses nationally and internationally.  He is a standing Adjunct Professor at  the Straus Institute for Conflict Resolution of the Pepperdine University School of Law, at Southern Methodist University’s Program on Conflict Resolution and in several other schools and universities.   He is a past President of the Academy of Family Mediators, a Practitioner Member of the Association for Conflict Resolution, and the American Bar Association’s Section on Dispute Resolution.    He is the author of numerous book contributions and articles, including “The Mediator As Trickster,”  “Guerilla Negotiation,” and “The Beauty of Conflict,” and is a Senior Editor and regular columnist for Mediate.com. 

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Website: www.rbenjamin.com

Additional articles by Robert Benjamin



Comments



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 Victoria Pynchon,   Los Angeles CA  vpynchon@settlenow.com      03/20/06 
 Sorry Robert 
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. . . this is what I get for skimming & not checking my posts until after they are posted (for those over 45, I also failed to check the "pocket part" on more occasions than I'd care to admit; thank god for Westlaw & Lexis!). So. Sorry for calling you "Richard" Robert. Best, Vickie
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 Victoria Pynchon,   Los Angeles CA  vpynchon@settlenow.com      03/20/06 
 Restorative Justice Practice 
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For a brief but thorough discussion of "victim-offender" mediation, see Shame by Any Other Name, Lessons for Restorative Justice (2005) 5 Pepp. Disp. Resol. L.J. 299, posted at www.ninetymeetingsinninetydays.com. The issues raised by Richard Benjamin arre as complex, textured and nuanced as he reveal them to be in this fine article. The field is now mature and the literature and research extensive. Anyone who isn't familiar with it (as I wasn't until I took Dan Van Ness' excellent Rest. Justice class at Pepperdine) should begin to interest themselves in its potential for creating peace and justice in our communities. The principles applied in Restorative Justice practice are similar to those being used by the Truth and Reconciliation Commission in South Africa and in similar projects where incarcerating half the population for their crimes (i.e., Rwanda) is impossible. Those places where reconciliation is the ONLY possible answer give us the best testing ground for a society that bellies up to the board and acknowledges its accountability for all breaches of the peace in civil society. At the simplest level, it's just about each of us "taking our part in it." Best, Vickie Pynchon
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 Charles  Parselle,   Sherman Oaks CA  charles@parselle.com      03/17/06 
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I always like Robert Benjamin's original perspective, but would like to offer a different perpective on the incident itself. Robert feels that calling it a 'crime' is hyperbole; he prefers to describe it as 'harassment, if not assault.' I would say that if proved, it is both assault and battery, which are clearly crimes identified in the Penal Code. The fact that the alleged perp was a juvenile may alter the treatment, but not the character, of the offense. I entirely agree with Robert's comments about the cooption, the virtual ingestion, of mediation by the courts with a steady proliferation of rules and a strong dose of coercion. Mary Miller's comments would have been a lot more interesting if she had told us what happened with the particular perp in his interaction with this particular victim, rather than merely defending against the inaccuracies of the reporter. I would have liked to know how the victim responded to what was clearly intended as a therapeutic process, and also how one handles the perps in a setting that for them is obviously coercive, because if they don't cooperate they are 'referred back to the Probation Officer.'
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 Mary Miller,   Eugene OR    03/09/06 
 Response from Mary Miller 
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A recent story about a youngster from southern Oregon involved in the criminal justice system has given rise to some confusion and misinformation, and we are sure that the mediation community would want to understand our perspective. Mediation Works is a non-profit, community dispute resolution organization located in southern Oregon. We offer ten conflict resolution programs to the community- some of which are mediation programs and some educational or training programs. The Victim Offender program is not a mediation program and is conducted under contract with the Juvenile Division of the Community Justice Department. The youth are assigned to the program by their Probation Officers as an alternative to going to court. The youth offenders attend four classes and then meet with their victim in a facilitated clarification session (not a mediation.) The goal of the four classes is to prepare the youth for the face to face meeting with the other party, which can be a very healing experience for both parties. For this meeting to occur, young offenders are asked to accept responsibility for their crimes, to develop empathy for their victims and to become aware of the “thinking errors” that led to their behavior. If the youth does not complete the class assignments or does not take responsibility for the impact of his actions, then clearly it is not appropriate for him to meet with the party that was impacted. At that point, Mediation Works refers the youth back to the Probation Officer. We have no further contact with the youth. “Thinking errors” are the thinking we use to justify what we did. We all make thinking errors from time to time such as lying by omission, minimizing, threatening, anger, etc. Youth in class are helped to learn more about “thinking errors” and the thinking errors that led up to the actions which resulted in their arrest. The clarification letter that they are asked to write has seven guidelines – none of which include writing about “criminal thought processes” We first became aware of the words “criminal thought processes” when we read them in the paper. At no time did the Program Coordinator, state in class that the youth had to describe in his letter his “criminal thought processes.” It is unfortunate that the youth was quoted but that the adults present were not. We do not, nor have we ever, used those words in class. I was very clear with the reporter about the difference between intent and impact and that youth are asked to be accountable for the impact of their crime – not the intent. She chose not to report that portion of our interview. In class a clear distinction is made between the intent behind the behavior and the impact it has. The behavior in question may have been intended as “horseplay” but the impact on the other - considerably younger - boy was perceived as “humiliating and painful” by the younger boy’s parents. The youth in question was asked to be accountable for this impact. Mediation Works is proud of the many young people who learn new, positive ways of responding to conflict through these classes. Many former youth offenders have been given new life skills that help them make better and wiser choices in the future. Mary N. Miller Executive Director, Mediation Works, A Community Dispute Resolution Center, Inc. March 8, 2006
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