Kenneth W. Mentor, J.D., Ph.D.
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Victim Offender Mediation: Attitudes and Opinions
of a Group of Experienced Mediators

Kenneth W. Mentor, J.D., Ph.D.
1997

Abstract
The attitudes and opinions of a group of Victim Offender Mediators are examined in this qualitative research. Data was collected through a series of interviews with active mediators in a well established Victim Offender Reconciliation Program. Issues addressed include mediator training, motivations for volunteering, concerns about neutrality, definitions of a successful mediation, and opinions about the type of cases most, and least, appropriate for Victim Offender Mediation.

Victim Offender Reconciliation Programs (VORP) were formed in the mid 1970's with the promise of restoring relationships between victims, offender, and the community. With the assistance of a trained mediator, individuals who have been convicted of a crime are brought face-to-face with the victim of the crime. From the beginning, the primary goal of VORP has been to promote reconciliation between victim and offender. Victim participation in the criminal justice system is another goal. Increased participation provides the victim with a voice, answers to questions not typically asked in a traditional trial setting, and improves the chance of a restitution agreement that will meet the needs of the victim. Restitution to the victim, directly from the offender, is another goal. VORP traditionalists see restitution as a by-product, rather than the sole purpose, of the mediation. Offender rehabilitation is another goal. VORP proponents believe that chances for rehabilitation are increased as the offender is able to put a face to his or her victim, while accepting responsibility and accountability for his or her actions. The final goal is empowerment of the offender. VORP provides the offender with an appropriate means for alleviating feelings of guilt, shame, and sorrow.1

This research includes an examination of the first VORP program in the United States. Volunteer mediators were interviewed in an effort to describe the VORP process as it is currently being practiced in this mediation center. The research presented in this paper is intended to provide a snapshot of a narrow range of current activity. This paper represents a small part of a larger research project. Much work is yet to be done. A number of issues that need to be examined are discussed along with the presentation of the work that has been completed. At this time, the information presented below is limited to a very brief period in the life of this center. I am not trying to describe the entire life cycle of this or any other center. The results should not be generalized to other Victim-Offender mediation programs.

Sample and Methods

The VORP studied for this research is contained within the Center for Community Justice (CCJ) in Elkhart, Indiana. Cases are referred to the center by county judges. The majority of cases are relatively minor and most include a juvenile offender. Offenders are generally sentenced to community service, probation of varying lengths, educational programs (such as parenting skills), and restitution in an amount to be determined. The judge generally withholds final sentencing until the mediation takes place. The mediated agreement then becomes part of the final sentence. The offender is required to participate in VORP mediation as a term of his or her sentence. Victims are not required to participate.

Program coordinators oversee the assignment of VORP cases. The coordinators work closely with the offender's probation officer to assure that the offender can be contacted. In most cases the mediation occurs several months after the offense, often a year later, so parties may be difficult to reach. Cases are assigned to volunteer mediators who are responsible for contacting the parties to answer initial questions, inquire as to their willingness to participate in the mediation, and arrange a time for the mediation to take place. Mediations are usually held in one of the conference rooms at the CCJ offices. The mediator is responsible for scheduling and conducting the mediation, writing the agreement, and returning the signed agreement to the program coordinator.

In the Elkhart program, mediator training generally includes 15-20 hours of training. The training includes a description of VORP mediation, an overview of where VORP fits into the justice system, and a variety of skills practices. Reflective listening, methods of promoting communication between parties, and numerous role plays are generally included. Individuals selected to participate in the training sessions often have prior mediation or counseling experience. After the initial training, those chosen to become mediators observe at least one mediation and are usually observed during their first mediation. Since the mediators often have fairly strong mediation and communication skills before the training, these steps may not be followed in each instance.

Seven of the 11 active VORP mediators were interviewed for this research. Two mediators are employed as program coordinators. These individuals were not interviewed in light of the possibility that they, as administrators, may have different experiences than others. Two other mediators chose not to be interviewed. The interviews took place within a two week period, were completed over the phone, tape recorded (with permission), and transcribed.2

Mediator experience varied across the group. One mediator said he had done over 20 cases, another had completed just one. The average was about 8-10 mediations. Mediators had been with the center for 1-4 years, with most reporting that they had been volunteer mediators for about three years. Several mediators expressed disappointment about not being asked to do more mediations. When they agreed to volunteer they were asked to commit to at least one case per month. None of them were working at close to that level. Reasons for the low number of cases have not been adequately determined at this stage of the research. This will be an important issue to examine as this research expands beyond the initial set of interviews.

VORP Mediation Through the Eyes of Mediators

Issues addressed in the interviews included training, prior experience, motivations for volunteering, perceptions of the mediator's role, neutrality, and ways to define a VORP mediation as a success. The mediators were also asked to talk about their perception of the goals of VORP. Finally, the mediators were asked to talk about specific cases in which they believed that victim offender mediation was, or perhaps was not, an appropriate method for addressing issues regarding victims, offenders, and the needs of the community as a whole. Much of the following is based on the mediators' comments. My intent is to provide a descriptive, rather than evaluative, picture of what occurs in this program.

Training, Prior Experience, and Motivation

Each of the mediators was asked to reflect on his or her training as well as the extent to which prior life experiences have proven to be helpful in the effort to mediate issues between victim and offender. Although the mediators reported different training experiences, most believed that the training had adequately prepared them to be mediators. Two mediators expressed concerns regarding their comfort level after the initial training sessions. Each reported that the center's coordinators "did not push them into mediation right away." This allowed the individuals an opportunity to observe mediations until they felt comfortable going on their own.

Several mediators reported that they had participated in mediation or other conflict resolution training prior to becoming involved in VORP. One talked about mediation training in college, another was an active arbitrator, another had been a union representative, and another was a member of the clergy. Others reported that prior life experiences were helpful. These experiences included counseling and employment related experiences. An older mediator, who is retired from the workforce, said that his "life was a valuable experience" that aided him in his efforts to mediate. One mediator reported that during his training session it appeared that all participants "had the basic life criteria to be mediators and had already done that in other aspects of their life, even though it wasn't considered or called mediation."

Several mediators referred to the size of their training classes. None of them appeared to know that they were currently among a group of mediators that was smaller than the classes in which they first learned VORP mediation. Future research will examine reasons for this attrition. The VORP coordinators exercise discretion regarding who will actually be assigned cases. It will be interesting to examine the criteria used to make these decisions. It is likely that others choose not to mediate after participating in the training. Reasons for dropping out will also be examined.

The current group of mediators hopes to continuing their volunteer work with the CCJ. They were motivated to volunteer for a variety of reasons and the motivation to volunteer continues. In fact, many of the volunteers want to increase their involvement. Reasons for initially volunteering included spare time during retirement, curiosity, the belief in volunteerism, and a desire to give back to the community. Several reported that they were searching for positive experiences that would counteract negative experiences at work. Motivations to continue as active mediators include the initial reasons, as well as the experience based belief that VORP is a valuable alternative to other mechanisms of justice. It is clear that these individuals have had positive experiences as mediators and that these experiences are personally rewarding.

VORP Goals and the Definition of Success

Each mediator was asked to discuss the goals of VORP mediation. The responses were fairly consistent, yet the language used may be indicative of an interesting inconsistency. Each mediator talked about bringing victim and offender together. The mediators all felt that it was important to get repayment for any monetary loss. The majority talked about the importance of encouraging the offenders to recognize the impacts of their actions. Inconsistencies appeared as the mediators discussed VORP goals in the context of an attempt to define a mediation as a success. For most, the ultimate goal was a written restitution agreement. Only one talked about reconciliation, although others discussed closure, information for the victim, and apologies. None discussed restoration of offender, victim, and community.

The majority felt that it was important that the mediation lead to a written agreement that included a plan for restitution. The mediators knew that the agreement was going to go back to a judge, who would most likely rubber stamp the restitution agreement (this was the mediators' perception and may not be the reality of the situation). One mediator discussed his method for encouraging agreement. He warned offenders that the paperwork "would be going back to the judge, whether the offender agreed to restitution or not." This individual stressed that the judge would not look kindly on a refusal to take responsibility. Another mediator also mentioned the judge threat, although it appeared that this mediator was a little less confrontive about the potential for a negative reaction from the judge. Another mediator talked about the importance of leading the offender to "face up to his behavior." For the majority, restitution was the primary goal and was a necessary element in the effort to define a mediation as a success.

Other mediators had a clearer understanding of the concepts associated with restorative justice. One talked about feeling good about mediations in which both parties "can come out of (the mediation) with a very good feeling about themselves." Another talked about VORP as a good method for bringing the parties together so "the offender can realize what he has done and take steps to avoid that behavior in the future." Two mediators talked about cases in which the victim showed a genuine concern for the offender. In each of these cases the victim did not want monetary compensation. The victims' wanted to know if the offender had taken any steps to stay out of trouble. In one of these cases the victim offered the offender a job. The mediator in each of these cases talked about the generosity of the victim. Each mediator discussed this as a positive alternative to the behavior of many victims. One mediator said that other victims had "been somewhat interested (in the offender), but mostly I find them motivated by money. They want to get the money back."

It is clear that these mediators, although a fairly small group, had a wide variety of opinions regarding the goals and successes of VORP mediation. It is unclear whether the varying opinions are a result of training, experience, personal opinion, or other factors. Information regarding the root of these opinions could be very helpful to the mediation center. If the center prefers a more uniform approach, it will be important to stress the center's goals in training and to reinforce these goals throughout the mediator's experience. As this research continues, it will be interesting to determine the extent to which these opinions mirror those of the center.

Neutrality, Power Imbalance, and Case Selection

Neutrality was one of the major issues discussed in the interviews. Each mediator discussed neutrality, but did not feel that this neutrality meant that victims and offenders could do and say whatever they wanted. The mediators were neutral to the extent that they did not openly take sides, but most mediators were active in assuring that the process remained respectful to everyone involved. In some cases neutrality allowed mediators to protect the offender. One mediator talked about angry victims with punishment on their mind. This mediator tells these victims that "the court has already done the punishing" and that the victim should "consider that these youngsters were trying to turn around and become useful citizens." This mediator felt that "we have to remember they are kids. You can't punish them like adults."

Other mediators made similar statements regarding the protection of juvenile offenders. Many felt that it was important that parents be included in the mediation, although the motives for including the parents were inconsistent. Some felt that young offenders would be disadvantaged if their parents were not involved in the mediation. These mediators believed that parents could play an active role in the process. Another mediator allowed parents as guests, but felt that it was the mediotor's job to be sure that "the children were not mistreaated." One mediator stated that he would not take cases in which children were involved. He believed that parents would attend the sessions and defend their children. The mediator felt that these kids "were usually wronger than two left shoes. But the parents would always say it was someone else's fault, they were very disruptive and I couldn't get to the main part of my job because of them interupting. . . . sometimes the kids would tell you the truth, you know, ‘Yeah, I did this, I screwed up.' But the parents would always blame someone else."

Each mediator acknowledged that at times it was difficult to remain neutral. They felt that neutrality, or at least the appearance of neutrality, was crucial to the process. However, many of the mediators admitted to strong feelings about the parties and said that they often took sides. The mediators took sides because they were human, yet as mediators thay were able to keep their opinions secret. As we know, neutrality is a major component of mediation. It is closely related to the issue of empowering a party who is the potential victim of a power imbalance. In VORP mediation one person, the offender, is most likely in a situation with little power. As discussed above, several mediators took steps to assure that the victim did not use his or her power to force an agreement that a juvenile could not live with.

Most mediators appeared to believe that complete neutrality in a situation of power imbalance only served to endorse the behavior of the more powerful party. Others felt that the VORP process was intended to involve a power imbalance and that the process was weighted in favor or victims who deserved an apology and monetary restitution. These mediators saw their role in a somewhat different way than other mediators. They appeared to value efficiency over communication. As this research proceeds it will be interesting to examine the awareness of, and the concern over, unequal power between the parties.

One mediator talked about how the behavior of the parties would lead him to secretly favor one over the other. This mediator said that there were times when the offender was "truly sorry and regretful of what they've done and I find myself seeing pretty far with them and wishing that the victim would take it a bit easy on them. But then there have also been times when the offender was just messed up in the head, and has no sense of what they've done wrong, and is just kind of smart mouthing around. Then I definitely side with the victim on that. It can go either way depending on their attitudes."

Several mediators described mediations that VORP experts would agree were not appropriate for VORP mediation. In some cases the offender was attempting to retry the case. In others, the power imbalance was so strong that it may have been preferable to resolve the issues in a less neutral forum. Several cases included multiple offenders in which just one showed up for mediation. The victim wanted his or her money and the single offender was left "holding the bag" for the group, many of whom refused to participate in the mediation. While this may have provided a clear lesson about his or her choice of "friends," it is not be likely to lead the offender to believe in the justness on the system.

Conclusion

As stated above, my intent is to be descriptive rather than evaluative. That said, it is possible to summarize the information in a way that may provide suggestions to the program directors. These observations and suggestions are listed below.

1. The training offered to these mediators seems to be somewhat unstructured. The selection process appears to lead to a training group with a high level of communication and conflict resolution experience. In practice the mediators appear to use a wide variety of skills. A clearer definition of the process, skills, and goals may lead to a more consistent approach to mediation.
2. The mediators are very flexible in their response to the parties and mediations. This is not necessarily a negative. However, the center may want to increase the level of oversight and encourage the mediators to participate in in-service training to assure that this flexibility is not leading to a process that is not acceptable to the center or the justice system which it serves.
3. Many of the mediators stress the importance of restitution. If this is the primary goal, we may be reducing the chances for reconciliation and restoration. A common theme of restorative justice involves blame, shame, and reintegration. If restitution is the primary goal, the chance for reintegration is reduced. VORP becomes just another player in the degradation ceremony through offenders are processed.

4. Although the mediators described cases that appeared to be inappropriate for VORP mediation, they did not seem to be very reflective about the process. The majority stated that they had never been given a case that was not appropriate for VORP. If the case screening and assignment process were effective, one would expect this to be the case. However, the mediators provided evidence that cases were not being screened in an effective way. Case screening should be improved, along with efforts to assess the strengths of individual mediators in an effort to effectively assign cases.

5. Finally, VORP mediation can be transformational, which often involves multiple meetings with the parties. Other VORP centers stress efficiency. These centers are very settlement driven. The Elkhart VORP needs to decide what it is, and clearly define itself to the mediators, the judges who refer cases, the probation officers who oversee these cases, and to the community as a whole.

The Elkhart program is the longest running VORP in the country. The program continues to be an important part of the justice process in the community. However, the program may have, to a certain extent, lost its way. This is not surprising in light of recent changes at the center. There has been a significant amount of leadership turnover. The new leaders are now in a position to strengthen the VORP program, and have the potential to move the program in a positive direction. In addition to these organizational changes, societal changes may have also impacted the program's ability to function as initially envisioned. Court overcrowding, coupled with a get tough attitude in the community, may have reduced the reliance on a VORP process that may be seen as inefficient and/or lenient. The VORP center, along with the CCJ, may need to engage in an educational campaign directed toward defining their mission to the community as a whole, and to the justice system in which it serves.

Again, this research is intended to provide a snapshot of what is happening among a group of volunteer mediators. Much information is omitted in the process. The next steps in this research will include discussions with community leaders, justice system insiders, and those directly responsible for the VORP program. The VORP process has worked well, and continues to work well in this community. The American system of justice is becoming more receptive to restorative methods. Elkhart was somewhat ahead of the curve. The Center for Community Justice has an important role to play if Elkhart plans to continue its leadership in the area of restorative justice. VORP mediation can play an important role in this community's system of justice. The opportunity for positive change is as strong as ever. The center is blessed with a core group of mediators who are devoted to the VORP process and appear to be interested in participating in future successes. This enthusiasm and support will be important if this program hopes to remain an active participant in the community's system of justice.



1This description of VORP is based on general knowledge and may not be fully supported by other researchers. At this time, this research is presented for discussion in the hope that others will provide comment and direction. The information is presented informally, without references.

2My thanks go to Lynnette King for assisting with the interviews. As a VORP mediator with opinions and experiences of my own, I felt that it was preferable to turn the interviewing task over to my research assistant. She did her job well and surely learned a lot in the process.

 

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