Comments: Has Mediation Crashed?

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Victoria Pynchon, Los Angeles CA     03/20/06
Sorry Robert
. . . 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

Victoria Pynchon, Los Angeles CA     03/20/06
Restorative Justice Practice
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 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

Charles  Parselle, Sherman Oaks CA     03/17/06
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.'

Mary Miller, Eugene OR   03/09/06
Response from Mary Miller
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