Victim–offender mediation and reconciliation programs are processes through which victims of crimes, the perpetrators of crimes, and in some cases affected community members attempt to work through the effects of criminal incidents. As opposed to many modern-day criminal justice systems, which may emphasize the punishment of criminals, application of legal principles to criminal events, and protection of society from those who have committed crimes, victim–offender mediation and reconciliation processes typically emphasize processes allowing perpetrators to take responsibility and make reparations for their actions, allowing victims to seek and gain emotional healing, and allowing communities at large to apply what ethical standards and mores they deem appropriate given the circumstances of particular crimes. In this way, many criminal reconciliation programs derive from the philosophy that crime is something that primarily harms the individual community, as opposed to legal entities such as countries or their subdivisions, and thus is best addressed by individual communities themselves.
Further, victim–offender mediation programs fundamentally assume that there is value to be gained from the interaction of both the victim and offender of a crime, and thus provide opportunities for such parties to meet with a skilled mediator present. Such processes contrast with many countries’ criminal court proceedings, which typically emphasize the proof of an offender’s guilt under local laws and tend to deemphasize the value of victims’ communication with the accused. Collectively, victim–offender mediation and reconciliation programs are often considered to be part of wider-ranging restorative justice processes, which are processes that focus on the emotional, social, and other needs of both victims and offenders involved in crime.
Historical Development and Usage
Throughout the late 20th and early 21st centuries, victim–offender mediation and reconciliation processes have gained increasing recognition as viable alternatives to many nation-states’ formal, criminal justice proceedings. It is important to note, however, that the principles of victim–offender mediation are not necessarily new. Many victim–offender mediation and reconciliation processes date back hundreds of years. Historically, conflict resolution processes around the world have engaged the use of dialogue, in the form of mediation, among victims, offenders, and their surrounding communities to alleviate the effects of crime.
For instance, the Australian Aboriginal people, among others, have historically viewed crime and other types of deviance as creating social rifts that must be mended through victim–offender mediation processes. Elders within Aboriginal communities have for many centuries led mediation processes by having community-wide discussions of the harm that was caused to the community, having victims and offenders meet privately to discuss the actions necessary for the offender to make amends, and then announcing the mediation’s outcome to the rest of the social group. On the North American continent, the Navajo Indians have long-standing traditions of restorative justice processes, which today manifest as Peacemaking Courts that employ twofold processes that focus first on the social and individual harm created by particular crimes and conflicts, and second on the healing necessary to reintegrate parties into the local community. Specifically, socially significant words and terms are first used in ceremonies designed to purify and cure the ills of parties to conflicts, and parties then reaffirm their support and allegiance to the community, as well as their decision to allow for the offender’s reintegration.
While these and other communities have used victim–offender and reconciliation processes for many years, most practitioners and criminal justice scholars use the term victim–offender mediation to reference relatively modern programs implementing restorative justice principles. The use of victim–offender mediation largely began in North America in the 1970s and, in particular, is thought to have first been applied in a property crime involving two young men in Ontario, Canada. In this case, the men were ordered by a judge to meet with their victims and to report back about the harm the victims suffered as the result of their offenses. At the time of the judge’s order, the approach was considered novel and a new way of addressing criminal harm caused within society at large. In subsequent years, relatively systematic approaches to victim–offender dialogue were introduced throughout North America in many court-mandated and voluntary programs. Many of these programs are now referred to as “victim–offender reconciliation programs” or derivative descriptions.
The instance of victim–offender reconciliation programs increased significantly during the 1980s in both North America and Europe, particularly pertaining to cases of juvenile criminal offenders, or “delinquents.” Throughout the 1980s and 1990s, many civil rights groups, legal and criminal justice scholars, and some politicians began asserting that, as a matter of social policy, young offenders ought to be given opportunities to both mitigate the effects of their crimes on victims and to afterward reintegrate into society with limited long-term ramifications, particularly that of imprisonment.
The theory of justice underpinning such arguments asserts that younger individuals have not yet had the benefit of enough life experience to understand the ramifications of their actions, and may not have had the chance to develop their sense of moral decision making. More recently, scholars supporting such youth-oriented programs point to relatively new research indicating that the brains of children and young adults have not yet fully developed their capacity to plan, associate cause and effect, and think logically about the impact of their actions on other individuals. In contrast, critics of juvenile victim– offender mediation programs argue that such programs may, in some instances, allow juveniles to escape punishment they otherwise deserve, which may in turn prevent those juveniles from fully experiencing and learning from the ramifications of their actions.
Over the past several decades, many juvenile victim–offender mediation and reconciliation programs have reported successful reductions in offender recidivism, reductions in loads on local juvenile court dockets, and successful reintegration of juvenile offenders back into their local communities. In addition to facilitating victim–offender dialogues, some juvenile-focused programs provide aggression management and conflict resolution training for those children considered to be most vulnerable to becoming juvenile offenders.
Victim–Offender Mediation Today
In recent history, victim–offender mediation and reconciliation processes have also increasingly been used throughout the world to address incidents of violent crime, including in cases of adult criminal defendants and sometimes even in extreme cases, including incidents of genocide. During this time period, the areas of criminal justice theory and practice have seen two contrasting movements toward the handling of criminal defendants. On the one hand lies a centuries-long progression of nation-states moving toward increasingly punitive and retributive stances toward crime, which emphasize punishment as the most effective response to crime, inherently view crime as an act against the state itself, and thus view crime as something to be dealt with by the state, according to state law, and on behalf of a nation’s citizens.
Instances of this approach include, but are not limited to, national and subnational prisons and jails, formal criminal court systems and proceedings, formal policing of crime, and all of the institutions that support and are a part of such systems. On the other hand, some Western and developing nations have come to embrace ideas of reparative justice—that is, a theory of justice focused on healing and making whole those individuals involved in crime, and thereby healing and making whole the communities within which crime occurs.
Instances of this latter movement include the establishment of many nonprofit, and in some cases government-subsidized, victim–offender mediation programs throughout North American and Europe during the 1990s, as well as the incorporation of victim–offender dialoguing techniques into some governmental agency’s existing functions during the same time period. In the United States, approximately 19 states had formalized victim–offender mediation programs for handling criminal cases by 2007. Many crime victims who participated in these programs have expressed satisfaction with the use of victim– offender mediations, have stated that the victim– offender reconciliation processes allowed them to regain a sense of emotional control and understanding regarding their experiences, and in some instances have stated that the victim–offender mediation processes allowed them to forgive the offenders who caused them harm.
As with many of the juvenile victim–offender mediation programs incorporated during the late 20th century, some critics have argued that in instances involving adult perpetrators, and in instances of serious crimes committed by individuals of any age, the societal damage caused cannot or should not be mitigated by victim–offender mediation, and can only be effectively managed through the punishment of offenders. Opponents of victim–offender mediation in these instances also emphasize the importance of deterring future crimes through consistent and sometimes harsh punishment of offenders, and of protecting society at large by incarcerating and thus controlling those individuals deemed to be a threat to others.
Victim–offender mediation has also recently been used in instances of large-scale violence, the most extensive of which being the Rwandan genocide of 1994. Because of the scale on which the genocide occurred, well over 100,000 criminal defendants were at one time held in various Rwandan detention facilities, causing overcrowding and strain on government resources. In order to expedite the speed with which defendants were tried, during 2000 and 2001 the Rwandan government instituted the Gacaca Court system, which is historically based upon restorative justice philosophies and methods used by Rwandans for hundreds of years.
In Gacaca proceedings, village elders traditionally convene public mediations of victims and offenders. Victims can confront the accused, the accused can pledge repayment to the victim in the form of goods or labor, and the local community can thereby work through incidents of crime. In their modern conception, Gacaca courts still take place publically and allow victims to openly confront the accused, but differ from traditional reconciliation methods in that they involve local community leaders serving as judges and prosecutors of the accused. Many of the current Gacaca practices directly mirror restorative justice principles in that there is a focus on victims and their healing, the healing of offenders, and the reintegration of offenders into their communities. Some human rights observers have criticized the current Gacaca court system, however, for not allowing lawyers for criminal defendants and for having low acquittal rates (i.e., rates at which those accused are deemed innocent) of only around 20 percent, which may reflect that the Gacaca system is biased against defendants.
Issues of Research and Debate
While the victim–offender mediation and reconciliation processes currently provide a framework for a variety of juvenile- and adult-focused programs around the world, ongoing research and debate currently exists among observers regarding such programs’ effectiveness and desirability as alternatives to punitive or retributive criminal justice processes. Proponents of victim–offender mediation and reconciliation programs argue that these processes allow all parties to a crime the chance to reconcile, whereas in many court systems victims of crime have limited opportunities, if any at all, to communicate with or address the accused.
One counterargument to this point is that only criminal trials can allow victims to have “their day in court,” and to thereby witness and obtain justice from a proceeding verifying the offender’s guilt. Further, as has been the case throughout the proliferation of victim–offender mediation programs during the past several decades, many supporters of such programs cite instances of lower recidivism and higher accountability of those criminals who participate, as well as higher reported victim satisfaction with such processes as compared to a criminal trial. Additional arguments often cited in favor of victim–offender mediation and reconciliation programs include the savings such programs can afford to court systems by lessening the need for full criminal trials, as well as the savings to government penal institutions by helping offenders reintegrate into society rather than requiring state resources while incarcerated.
Another argument in support of victim–offender mediation programming is that an emphasis on offender reintegration gives offenders the chance to once again become productive members of their community, and is based on the belief that many offenders can grow and change if given the chance to do so. This philosophy contrasts with some criminal justice theorists’ view that many offenders cannot be successfully rehabilitated, that state resources should not be expended on such efforts, and that therefore criminal justice efforts should focus both on protecting society from those who would harm others and on deterring future crime through adequately stern punishment. Such arguments are often frequently made with particular reference to violent crime offenders and repeat offenders with long criminal histories.
While many cultures have used victim–offender mediation and reconciliation processes for hundreds of years, the expanded usage of restorative justice methods during the past several decades has led to a push for further research on the effectiveness of victim–offender processes. Several studies have been conducted regarding the expanded usage of victim–offender mediation in instances of violent crime, but to date these studies have been small, and current efforts focus on expanding the scope of existent research to collect more information on such mediations’ effects on both victims and offenders. Further, ongoing studies continue to collect information regarding the effectiveness of reconciliation programs used by nation-states and in instances of widespread crimes, such as the genocide in Rwanda. Finally, many scholars continue to research differences in effectiveness regarding juvenile-oriented victim–offender mediation and reconciliation programs versus those oriented toward adults.
- Bazemore, Gordon and Mara Schiff. “Emerging Grounded Theory in Restorative Justice Decision Making: A Qualitative Study of Juvenile Justice Conferencing Programs.” Final Report to the National Institute of Justice and the Robert Wood Johnson Foundation. Unpublished manuscript,
- Dhami, Mandeep K. “Offer and Acceptance of Apology in Victim-Offender Mediation.” Critical Criminology, v.20/1 (2012).
- Johnstone, Gerry. Restorative Justice: Ideas, Values, Debates. Portland, OR: Willan Publishing, 2002.
- Weitekamp, Elmar and Hans-Jurgen Kerner, eds. Restorative Justice: Theoretical Foundations. Cullompton, UK: Willan Publishing, 2002.
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What Mediation Is:
Mediation is a process in which a third-party neutral assists in resolving a dispute between two or more other parties. It is a non-adversarial approach to conflict resolution. The role of the mediator is to facilitate communication between the parties, assist them in focusing on the real issues of the dispute, and generate options that meet the interests or needs of all relevant parties in an effort to resolve the conflict.
Unlike arbitration, where the intermediary listens to the arguments of both sides and makes a decision for the disputants, a mediator assists the parties to develop a solution themselves. Although mediators sometimes provide ideas, suggestions, or even formal proposals for settlement, the mediator is primarily a "process person," helping the parties define the agenda, identify and reframe the issues, communicate more effectively, find areas of common ground, negotiate fairly, and hopefully, reach an agreement. A successful mediation effort has an outcome that is accepted and owned by the parties themselves.
Where It is Used:
Mediation is widely used in all sorts of disputes, ranging from divorces to civil lawsuits to very complex public policy problems to international conflicts. Many disputes that have not responded to an initial attempt at negotiation can still be settled through mediation. Even when conflicts are seemingly intractable, they sometimes yield to mediation. Mediation is of particular importance in long-running, deep-rooted conflicts, as this type of conflict is rarely resolved without such outside assistance. Even if the full range of grievances cannot be resolved, mediation is often useful for dealing with particular limited aspects of the wider conflict.
Mediation Through the U.N.
In the United Nations, the act of mediation describes the political skills utilized in efforts carried out by the United Nations Secretary-General or his representatives, through the exercise of the Secretary General's "Good Offices," without the use of force and in keeping with the principles of the UN Charter. The United Nations mediator engages in a process as a third party, when those in conflict either seek or accept the assistance of the United Nations with the aim to prevent, manage or resolve a conflict. Mediation skills, therefore, could be employed in all of the following contexts:
A United Nations mediation mandate, however, is more specifically defined. When the United Nations is called upon to mediate a resolution to a conflict, the parties accept what is called a mediation mandate. This means that they accept that the UN mediator is there to help and provide them find solutions to resolve their conflict. A United Nations mediation mandate provides the authority for the Secretary-General or his envoys to:
While the final outcome has to be agreed to by the parties, being a mediator entails a much greater responsibility and involvement in the outcome of the conflict.
As in other mediations, a United Nations mediated outcome is not binding, unless the Security Council takes actions to enforce the agreement. Final implementation of the mediated agreement rests upon the commitment of the parties.
A United Nations mediation mandate is particularly useful to the parties as it gives them the opportunity to avail themselves of the experience and best practices that the United Nations, as an organisation, has gained in the field of conflict resolution.
-- Nita Yawanarajah, Project Manager, UN Peacemaker Databank, Policy Planning Unit, Department of Political Affairs, United Nations
How Mediation Works:
Although a mediator cannot force an outcome, the process is very often effective. The key is the ability of the mediator to create a more productive discussion than the parties could have had by themselves. To do this, mediators help the parties determine facts; they show empathy and impartiality with the parties; and they help the parties generate new ideas. Mediators also exercise political skill and use persuasion to get people to soften hard-line positions. Often, though not always, they have a lot of background knowledge of the issues and type of dispute. Though many mediators are highly trained and experienced, not all are professionals, and they come from many different walks of life.
Lawyers often believe that the purpose of mediation is rapid and efficient settlement of a particular case. But others disagree. Sometimes the purpose of a mediation is more to improve relationships among parties who will have to deal with each other again, or even to help them learn how best to handle conflict with other parties in the future. Often, a mediator has to learn which of these purposes is most important to the parties in a particular case, and tailor the service to match, but different mediators tend to specialize in one variety of mediation or another. (Mediation that focuses on settlement is sometimes termed problem-solving mediation; mediation that focuses more on relationships is often called transformative mediation.)
While many mediators pride themselves on their neutrality, some observers believe that it is impossible any human being to be truly neutral. Others have concluded that even biased mediators can be useful, as long as the bias is not hidden from any party and parties have an opportunity to protect themselves against its effects. International mediations are often of this type, because an effective international mediator is often a foreign minister or president of an influential country, even though everyone understands that the mediator's country has interests of its own. President Carter's mediation between Egypt and Israel was an example.
A high school student sits down with two others to help them stop fighting; many miles away, the Secretary-General of the United Nations is chairing a meeting of 15 ambassadors who are trying to avert a war. These two situations may not seem to have much in common. But both are forms of mediation.
In virtually every situation where negotiation is not going well, or where for one reason or another it seems impossible to get a real discussion going with the other party or parties, it's worth asking whether bringing in someone else might at least help get communication going. That someone else is likely to be, or act as, a mediator. While parties' understanding of this process varies from setting to setting, in some places it is now routine to use mediators where two decades ago there was no practice to speak of. For example, the courts of the U.S. State of Florida alone now refer approximately 150,000 cases per year
to mediation, rather than expecting the parties to fight their disputes out in trials or to work out settlements without third-party help. While most of these cases are likely relatively simple to resolve, routinizing mediation is one way to prevent conflicts from becoming intractable.
More information on different kinds of mediation, and mediation of intractable disputes can be found in associated essays:
Use the following to cite this article:
Honeyman, Christopher and Nita Yawanarajah. "Mediation." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: September 2003 <http://www.beyondintractability.org/essay/mediation>.