Making A Case For Mediation Of Juvenile Delinquency

Ever since juvenile delinquency became a separate entity from the criminal justice system, it has been the goal of juvenile courts to rehabilitate young offenders in the hopes that they would not carry criminal behavior into adulthood. Beginning in Cook County, IL in 1899, responses to crimes committed by those under 18 were viewed as necessarily different to crimes committed by adults. Rather than punishing this group of young offenders with incarceration, there was a perceived need for something different; something that allowed for the delinquent to learn the error of his or her ways and to become a productive member of his or her community. This philosophy of rehabilitation has remained and today is implemented across the nation by every state through the development of separate systems for juvenile and criminal justice.


Although states vary in the approaches they take to accomplish the goal of rehabilitation, each is guided and assisted by the federal government through the Juvenile Delinquency Prevention Act. This Act suggests that the target of juvenile intervention should, in large part, be to develop in offenders the competencies and skills necessary for them to become productive in their communities. It is suggested within the Act that this be carried forward with the juveniles, their families and a collaboration of community and local public agencies. Furthermore, the Act recommends that the rehabilitation, supervision, treatment, competency education and accountability of juvenile offenders occur within a system of graduated sanctions. The National Council of Juvenile and Family Court Judges (NCJFCJ) agree with this approach in the Act and have posited their own recommendations to graduated sanctions. (for more information on the Federal Juvenile Delinquency Prevention Act, please see USC Title 42, Chapter 72, Subchapter I, Section 5600; for more information on the NCJFCJ, please visit www.ncjfcj.org).


Graduated sanctions refer to a continuum of interventions appropriate to the seriousness of the delinquent offense(s), the number of previous interventions for the offender, the conditions of the juvenile’s home, the needs of the juvenile and his / her family, victimization perpetrated upon the offender and by the offender and any other information relevant to the individual case. These interventions may range from a diversion or informal supervision by the Court, to formal probation to placement in a community agency, to placement in a secure facility with little access to the outside world. It is commonplace in most states for some period of intensive or formal supervision to occur once an offender is released from such a structured environment. Whatever sanction is imposed by the Juvenile Court, it is clear from the writings that the intervention should be individualized to the needs of the offender and should be the best possible approach to achieve positive (re)integration into society.


Mediation, because of its inherent individuality, offers a practical and potentially highly successful approach to juvenile justice. When combined with a structured competency development program, this hybrid approach is likely one of the best options for the reduction of recidivism. Unfortunately however, the only application of our discipline to be found in searches of “delinquency and mediation” is victim – offender mediation (which has been shown to be successful in achieving its very specific goals when implemented by qualified personnel). Perhaps before offering a more detailed accounting of the argument for mediation in juvenile delinquency cases, a need arises to distinguish between mediation and psychological treatment; and, between the need for the treatment and other interventions in juvenile justice.


Mediation has been classically defined as “…the intervention of a third party between two or more sides in a dispute in an attempt to help them reach an agreement….”1 Very simply, in this process, a mediator will help the parties identify their interests in the dispute and the blockades to achieving their interests. After these interests and blockades are elucidated, agreements can be worked out between the parties. All of us who have been privy to mediate any matter can attest to the fact that these interests and blockades can vary as much as can the people in the mediation. However, uncovering the underlying interests and blockades is the only manner in which mediation can result in success.


Psychological treatment typically refers to a process of “…solving psychological problems by modifying people’s behavior and helping them gain a better understanding of themselves and their past, present, and future2.” A psychologist, psychiatrist or counselor will assist a patient in uncovering physical, cognitive or behavioral causes of maladjustment to the stresses of society or body. Once this is achieved, a world-view change in perspective can begin to grow through continued counseling and treatment or medication can be prescribed which will create biochemical changes in basic bodily functioning.


Although there is current discussion as to where mediation and psychology either merge or differ in some regards3, there is clear understanding that psychological treatment is not the modality of choice for juvenile justice interventions. The National Center for Juvenile Justice may make the clearest statement to this effect in its Advancing Competency Development: A White Paper for Pennsylvania4 when it notes that in most cases of delinquency, there is no need for treatment, but a call for the building of skills and competencies necessary for the day to day functioning in life for juvenile delinquents.


When we look to build these skills and competencies, we would be remiss not to consider the current juvenile justice practices aimed to achieve these goals. However, we will not have to look far to find that there is discontent in both previous and most contemporary approaches to rehabilitating juvenile delinquency. One only has to go as far as the federal Juvenile Delinquency Prevention Act to find that Congress itself has called for reform in the juvenile justice system, based on failures of current practices to attain rehabilitation (see previous notations).


So where should skill and competency development be targeted and how can mediation assist in the reformation of the Juvenile Justice System called for by the United States Congress? To find these answers, we must first visit emerging research.


Brezina5 has considered juvenile delinquency as engagement in problem-solving strategies by offenders. Specifically, he notes that delinquency is apt to thrive under three conditions: the absence of conventional problem-solving strategies, positive outcome expectancies of delinquent behavior and the efficacy of delinquent adaptations. In their fundamental form, Brezina’s assertions simply mean that delinquent behavior is more likely to manifest in situations where (1) a young person lacks the ability to engage in normal problem-solving strategies, such as talking to the other party involved in a dispute or simply lacking the knowledge of something else to do; where (2) a youngster can engage in behaviors that he or she believes will achieve a desired outcome, which are likely avoidance or escape of negative situations or outcomes; and where the youngster (3) has seen some level of success in this past by engaging in these behaviors.


I submit that the practice of mediation between an offender and the object(s) of his or her problem-arousal can effectively address and counter the first two of Brezina’s concerns. By offering an alternative where conventional problem-solving is not only available, but encouraged, the offender can become aware of the processes of actively engaging in conflict resolution and build the skills of interpersonal communication. Sitting down across from the other party in the presence of a mediator, the offender will have the opportunity to address his or her concerns and learn to have a voice in his or her interests. (It is noted that the “other party” in delinquency cases may simply be the offender’s family members). Because developing the interests of all parties is a fundamental task in mediation, an offender participating in mediation will begin to create new expectations that his or her needs will be both heard and met. The offender will consequently learn that engaging in this new method of conflict resolution will ultimately bring about success in meeting his or her needs. Therefore, all three of Brezina’s beliefs are addressed in a successful mediation.


Another emerging theory of delinquency (prevention) is that of Ramm6 and his scientific formulation of principles of morality, in which he includes “Core Values”. In this model, there are ten values which, when achieved by people, lead to the attainment of happiness, contentment and satisfaction in life. Ramm asserts that when adolescents are attuned to how their behavioral actions may negatively affect their “Core Values,” they are more likely to engage in behavior that will not lead to a decline in what they need to become happy, content and satisfied in life. This means a reduction in delinquent offenses for the youngster who has identified his or her interests in terms of maintaining these Core Values.


A review and understanding of Ramm’s “Core Values” can only lead an experienced mediator to the realization that concern with most, if not all, of these values leads parties to engage in a conflict. Often, as the conflict continues, the parties lose sight of their original concerns and the conflict takes on a new life. As mediators, we assist parties in remembering these underlying interests. Delinquency mediation can allow offenders to see how their behaviors and beliefs are aligned with attainment of these Core Values. Therefore, if mediation in a juvenile delinquency case is successful and Ramm is correct, a reduction in offending behavior patterns should naturally follow.


A final emerging theory on the reduction of juvenile delinquency to be discussed herein is that of Barriga, Sullivan-Cosetti and Briggs7, which focuses on “self-serving cognitive distortions.” Self-Serving Cognitive Distortions can be considered in Barriga’s model to be those thoughts, cognitions and ideas that make delinquent behavior acceptable for the offender. For example, an offender may steal a car because the owner “has another one” or “isn’t going anywhere tonight.” According to this model, if a youngster can interpret his or her feelings and beliefs in a more congruent manner with the car owner’s, delinquent behavior will not occur. Building empathy is seen as a necessary factor in achieving this congruence.


Again, mediation is fundamentally geared to the attention of the needs of each party. In this case, the mediator would work to explore the underlying interests of the potential offender and to offer the offender a chance to reduce self-serving cognitive distortions through the understanding of the other party’s concerns.


I must note that Barriga’s research noted herein is in part a review of a program I had developed and implemented while serving as a Juvenile Probation Officer. Dr. Barriga’s findings served as an impetus to my becoming trained and certified in mediation and to developing further my ideas on the mediation of delinquency. I owe a debt of gratitude to him for priming me to the potential of mediation in Juvenile Justice.


With the foregoing in mind, I submit that mediation is a field that is expertly and uniquely positioned to help reduce recidivism in Juvenile Justice. As a standard of practice, mediators act to identify the individual needs of those who come to us for resolution of their conflicts, help uncover underlying motivations for behavior, insure that participants learn to address both current and future conflict with the best approaches known, help acknowledge motivations that lead to happiness, contentment and satisfaction and help confront beliefs that lead people to act in ways which may not be in sync with the reality of others they may come into contact with.


Although other disciplines address some of these issues, mediation is the one field where these goals are achieved with the full cooperation and input from the conflicted parties. This point is not only unique to mediation, but is important for the success of any program for rehabilitation of juveniles.


In the model I suggest here, offenders and their families will participate in family mediation sessions designed to help identify the interests of the parties in seven (7) areas called domains. Taken together, the agreements reached in each of these domains are memorialized in an agreement referred to as an Individual Resolution Plan (IRP). The seven domains were chosen after a meta-analysis of factors correlated with delinquency because they represent all areas of both the present and future lives of offenders. Further, identification of and attention to these domains as related to individual interests can effect lasting change in the offenders. It is important to note that the offenders and their families are solely responsible for the identification of interests and ideas for change. The mediator’s role in the process of IRP development is the same as all mediations, to assist the parties in both identifying their interests and developing resulting goals and agreements.


This differs in most contemporary approaches to juvenile justice in that the offenders and their families are the designers of the strategies to rehabilitation. In most current settings, the offender and his or her family are given a standardized set of Court imposed probation regulations to follow while remaining in his or her community or a set of established rules for the residential placement if he she is removed from the home. While these are to be individualized to each offender’s needs, the actuality is that the regulations, rules or treatment strategies are simply checklists or standard format for nearly every offender.


This common practice misses the single most successful aspect of mediation- mediation is highly successful in both attaining agreements between parties and in achieving follow-through to those agreements by the parties.


This success is likely the result of ‘psychological investment.’ In the context of conflict resolution, psychological investment refers to the phenomenon that parties who have been actively and freely involved in the processes of reaching agreement are significantly more likely to abide the agreements than are parties who have settlements imposed upon them. In simple terms, people are much more likely to do what they have agreed to do rather than what someone else told them to do. This also makes sense from the perspective of what social psychologist Leon Festinger calls Cognitive Dissonance. Cognitive dissonance refers to the idea that human beings are motivated to reduce incongruence between their beliefs and their actions, in part because incongruence (or dissonance) results in some level of psychological discomfort. In the case of a mediated agreement, dissonance is greatly reduced because people are simply motivated to do what they have already freely agreed to do. Their beliefs are reflected in their agreements and, in turn, in their subsequent actions.


As applied to juvenile delinquency, psychological investment and cognitive dissonance reduce resistance of family members and offenders in complying with a rehabilitation strategy when they have freely and actively engaged in the development of the strategy. Such is the case in a mediated Individual Resolution Plan.


As additional support, I offer the fact that a program I designed and previously implemented with these strategies in place resulted in zero recidivism for the first 18 months of operation. I further note that most recidivism occurred by offenders who had not completed the process of IRP development. Although no overall statistics are available for recidivism of this program versus traditional probation, research is available on outcomes related to the reduction of self-serving cognitive distortions and increase in empathic responding (see Barriga, et. al.) There is, however, a great deal of anecdotal knowledge in the program that recidivism was reduced for successful participants.


It is probably also important to note here that mediation will only get us half-way to our destination of rehabilitation. Identification of interests and development of an IRP will get our offenders no where if they do not possess the skills and competencies to achieve their goals.


To build these competencies, I suggest implementation of a structured program which can pass the information along to offenders while also giving the offenders a chance to apply any new skills and competencies to their individual lives. The model I believe approaches competency development the best is Transformational Youth Leadership (TYL).


Although a detailed explanation of this concept is beyond the scope of the present paper, TYL can best be thought of as a process where youth are taught that being a leader is more than simply telling others what to do. Its focus is on the process of becoming a leader, transcending one’s own goals for the “good of the group” and on a shift from attaining immediate gratification to a search for long-term personal success8. By engaging in TYL, youth both learn and have the chance to practice the skills and competencies missing within delinquent behavioral patterns.


A final component to the herein proposed approach to delinquency is the inclusion of an educational curriculum which discusses the unique relationships and conditions created by delinquent offenses. Known as Restorative Justice, a detailed discussion is again beyond the scope of the present paper. Briefly, the Restorative Justice models suggest that by engaging in delinquent behaviors, the offender creates an obligation to repair any harms perpetrated on a victim. Further, through juvenile court intervention, a victim is to be restored as closely as possible to his or her pre-victimization status. Fundamentally, this means that the offender should be required to repay restitution and atone for the offenses committed to each individual victim.


It is noted that training in mediation alone does not allow for the mediator to successfully teach or implement the components of Transformational Youth Leadership or Restorative Justice. However, it is believed that a mediator can step out of the mediation role and, with the proper additional training, fill this need successfully with offenders. The continuity in the relationship between the mediator and the offender allowed by such an approach will work to reinforce the commitment of the mediator in helping the youth out of the juvenile justice system. We know from psychology that the single factor related most to resiliency in children is the involvement and commitment of one adult in the betterment of the child’s life. Still, if a mediator is not interested in filling these dual roles, he or she may pair with other local and community programs to provide these vital services to the offender.




Whether the mediator chooses to become qualified to teach these additional curricula or partners with someone qualified, mediation clearly has a unique potential to help resolve juvenile delinquency. For those equipped to face this new challenge, mediation can attend a great deal of the reform in juvenile justice called for by Congress.


Finally, by simply doing what we are currently doing in a new light, mediation has a unique opportunity to truly become an agent for incredible change and growth in a severely underserved population.





NOTES:


1. American Center for Conflict Resolution Institute (2003). Professional Mediation Certification Training Program. Brooklyn, NY. p47.


2. Feldman, R.S. (2009). Essentials of Understanding Psychology, 8ed. New York: McGraw-Hill Higher Education. p487.


3. Strasser, F and Randolph, P (2004). Mediation: a Psychological Insight into Conflict Resolution. New York: Continuum.


4. Torbert, P and Thomas, D (2005). Advancing Competency Development: A White Paper for Pennsylvania. Pittsburgh, PA. National Center for Juvenile Justice. accessed October 20, 2008 at www.jcjc.state.pa.us 5. Brezina, T. (2000). Delinquent Problem-Solving: An Interpretive Framework for Criminological Theory and Research. Journal of Research in Crime and Delinquency. 37:1. 3-30.


6. Ramm, D.R. (2004). The Formula for Happiness, with Czetli, S. Xlibris. accessed at www.factsoflifeprograms.com on October 20, 2008


7. Barriga, A.Q., Sullivan-Cosetti, M and Gibbs, J. (2008). Moral Cognitive Correlates of Empathy in Juvenile Delinquents. Pending Publication.


8. van Linden, J.A. and Fertman, C.I. (1998). Youth Leadership: A Guide to Understanding Leadership Development in Adolescents. San Francisco: Josey-Bass.

                        author

Jeremy Olson

Jeremy Olson is a private practice mediator and consultant located in southwestern PA. In addition to his practice, Olson lectures as an adjunct professor at Seton Hill University. He holds certifications in business & family / divorce and transformative mediation and is a member of the National Association of Certified… MORE >

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