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II. Guidelines for Victim-Sensitive Mediation and Dialogue With Offenders

As the field of victim-offender mediation continues to develop throughout the United States, it becomes increasingly important that the mediation process be conducted in the most victim-sensitive manner possible while addressing important needs of the offender. This section offers a number of very specific guidelines and recommendations to strengthen victim-sensitive mediation practices.

Purpose of Victim-Offender Mediation

The purpose of victim-offender mediation and dialogue is to provide a restorative conflict resolution process that actively involves victims and offenders in repairing (to the degree possible) the emotional and material harm caused by the crime; an opportunity for both victims and offenders to discuss offenses and express their feelings and for victims to get answers to their questions; and an opportunity for victims and offenders to develop mutually acceptable restitution plans that address the harm caused by the crime.

Underlying Principles of Victim-Offender Mediation

  1. Human beings possess inner resources that, under the right circumstances, can be accessed and used to address issues and resolve problems of importance to them.

  2. Appropriate structure (including a neutral third-party facilitator, procedural guidelines, and a seating plan) can neutralize differences in status and power and provide an environment conducive to meaningful dialogue, even in emotionally intense contexts.

  3. The use of specific techniques and strategies by the mediator must serve the larger goal of creating a safe, comfortable environment in which a mediated dialogue can occur.

  4. The "personal" element is powerful: stories of individual experience can evoke empathy, insight, and understanding. Telling and hearing these stories can be empowering, validating, and transforming for both the speaker and the listener.

  5. The mediator's presence plays an important role in facilitating an open dialogue in which the parties are actively engaged and doing most of the talking. This "presence" is established through the mediator's verbal and nonverbal communication, tone of voice, straightforwardness, expression of empathy, and genuine concern for each party.

  6. Presenting choices to the parties whenever possible (when to meet, where to meet, etc.) maximizes opportunities for them to feel empowered by the process.

  7. The mediator's role is critical in a successful mediation. It is important for mediators "to get out of the way" and encourage conversation between victims and offenders. Mediators should be cautious about intervening too frequently.

  8. The mediation process may be adapted to meet the needs of the participating parties so that they feel safe and comfortable to engage in an open dialogue. Continual attention must be paid to differences in communication style that can distort meaning.

  9. Discovering underlying needs and interests can enhance a collaborative effort and provide more satisfying results.

  10. Well-written agreements guide and focus behavior, thereby enhancing results. A written agreement, however, is secondary in importance to the dialogue between the victim and the offender about the crime itself and its impact on their lives. Some mediated dialogue sessions may satisfy the needs of the parties without resulting in a written agreement.

Guidelines for Victim-Sensitive Mediation

1. Victim Safety

A fundamental guideline for VOM programs is protecting the safety of the victim. The mediator must do everything possible to ensure that the victim will not be harmed. At every point in the mediation process, the mediator must ask, "Does this pose a threat to the safety and well-being of the victim?" It is essential that the mediator maintain rapport, study verbal and nonverbal communication, and request feedback from the victim as the process unfolds. If the victim feels unsafe, the mediator must be prepared to act immediately, to provide options, to terminate a mediation session, and to provide an escort for the victim leaving mediation.

To ensure the safety of the victim, the mediation should be conducted in a location that the victim considers safe, and the victim should be encouraged to bring along a support person or two. The mediator may also wish to bring in another mediator to comediate the session. In addition, the victim may find it reassuring to have input on the arrangement of the room and the seating of the parties and to have the freedom to be introduced in the manner he or she chooses, such as using only first names.

An important safeguard for victims is knowing that the VOM program has credibility. That credibility needs to be reinforced in writing, with an informative letter of introduction and a program brochure. Victims may also need reassurance that the program is not focused on the offender. In programs using volunteers, victims need to be assured that staff work closely with volunteers, that victims may contact staff if they have questions or concerns, and that referrals are screened by staff with safety issues in mind. Programs should consider having a victim advisory council consisting of crime victims and service providers to give guidance in policy and program development and implementation and to serve as a liaison to the victim-serving community.

2. Careful Screening of Cases

Each mediation program should have its own criteria for case selection, such as type of offense, age of offender (juvenile or adult), first-time offense, or multiple offenses. In addition to program criteria, staff or mediators or both should exercise discretion as each case is developed and at each step in the process, asking themselves if this case is suited for and should proceed to mediation.

For mediation to be meaningful, offenders must take responsibility for their participation in the crime and proceed willingly. If a mediator has any doubts about moving ahead with the process, he or she should talk with the victim to explain the situation, share information about the offender (with the offender's permission), and inquire about the victim's desire to proceed. A victim may choose to proceed even if the offender is inarticulate or less than remorseful—simply because he or she wishes to be heard—or a victim may decide not to participate in mediation in such a situation.

It is also important that mediators consider the readiness of both parties to participate in mediation, noting in particular victims' ability to represent their own interests and express their needs.

3. Meeting First With the Offender

A mediator usually meets first with the offender, prior to contacting the victim. Then, if the offender is willing to participate in mediation, the victim can be contacted and a meeting can be arranged. If the mediator meets first with a victim, gains his or her consent to participate in mediation, and later discovers that the offender will not participate, the victim may feel revictimized—having raised hopes for some resolution to the crime, only to be denied that opportunity. If, however, contacting the offender results in a significant delay of mediation, the mediator needs to talk to the victim about the situation, explaining the importance of voluntary participation on the part of the offender.

4. Offender's Choice To Participate

It is important that offenders participate voluntarily in all stages of the mediation process. Even when the court system pressures them to participate, offenders must understand that they may, in fact, decline. If offenders are forced to mediate, victims may experience the mediation as unsatisfactory and even harmful. The offender's unwillingness or insincerity may constitute an additional offense in the eyes of the victim.

5. Victim's Choices

Following a crime, a victim often feels vulnerable and powerless. Added to that is the victim's experiences with the criminal or juvenile justice system, which focuses on the offender. The victim is excluded from the process, rarely being offered an opportunity to tell his or her experiences, define the resulting harm, or express needs. It is not surprising that in the wake of a crime, a victim often expresses a lack of control in his or her life that can intensify fears and anxieties. The presence of choices and options for the victim in the mediation process can contribute to a sense of power. Empowerment is conducive to healing, the ability to move beyond difficult and painful experiences or integrate them into one's life. The mediator provides information and support for the victim engaged in decisionmaking but is careful not to apply pressure or impose expectations on the victim. The victim must be given sufficient time to make decisions, without the pressure of arbitrary time constraints. Choices should continually be presented to the victim throughout the mediation process as several decisions need to be made, including the following:

Participation. The victim must always have the right to say "no" to mediation, to refuse to participate, and to have that decision honored and respected. The victim did not choose to be a victim of a crime. It is crucial then that the victim experiences the power of choice about participating in the mediation process. The victim must always be invited to participate and must be educated about this option, but never pressured. The mediator should give accurate information about mediation, describing the process itself, the range of responses from victims who have participated in mediation, and research findings on client satisfaction. The mediator then should encourage the victim to consider the possible benefits and risks of mediation before deciding to proceed. The victim may also wish to consult with a trusted friend, relative, clergy person, or victim advocate before making a final decision. It is essential that the victim's participation is based on "informed consent."

Support. Another important option for the victim is the choice of support persons to accompany him or her to the mediation session. The presence of a friend or relative can enhance the victim's sense of comfort and safety, even though the support person typically has little or no speaking role. It is helpful for the mediator to meet or telephone support persons to prepare them for the mediation session.

Schedule for mediation session. The mediation session should be scheduled at a time that is convenient for the victim. The victim's schedule needs to be a priority so that the victim can feel a sense of control in the situation and find comfort in the deference extended. At the same time the needs of others should not be ignored.

Mediation site. Site selection is an important aspect of the mediation process. The victim needs to know the locations available (e.g., private room in a community center, library, religious building, office building, city hall) and be asked which he or she prefers. Which setting would feel safe, neutral, comfortable, and convenient? Occasionally, a victim chooses a more personal setting, for example, a home or an institution such as the detention center at which the offender is being held. The victim should consider the advantages and disadvantages of particular settings. The final decision, however, should be the victim's.

Seating. Generally, the parties are seated across from each other, allowing them to establish direct eye contact as their dialogue develops. The use of a table may increase the victim's sense of safety and maintain decorum. Mediators then are typically seated at the ends of the table, while support persons sit off to the side of each party. This arrangement, or a variation of it, is generally thought to be effective. If, however, the victim finds it uncomfortable, his or her wishes should be given serious consideration. Occasionally, a victim chooses to sit closest to the door or at a greater distance from the offender or request that support persons sit on the other side of the table, thus making them more visible to the victim. Various cultural traditions may also suggest a different arrangement. Whatever the seating, it should be conducive to dialogue and comfortable for all parties. A victim's sense of security should be a priority in determining the seating arrangement.

First speaker. The victim should have the opportunity to choose whether to speak first during the initial narrative portion of the mediation session or whether to speak last. This choice is given out of deference to his or her position as the victim of crime—a position the criminal and juvenile justice systems frequently ignore once the complaint has been filed. Often a victim finds it empowering to begin by defining the harm—telling the offender first what was experienced and how it has affected him or her. At times, however, a victim feels "put on the spot" and requests that the offender speak first, initiating the session and accepting responsibility for the crime. A victim sometimes finds it validating, and often healing, to hear an offender offer words of regret or remorse that have not been elicited by the victim's story. The mediator must make sure, however, that whatever the order, both parties' complete stories are heard—that, for example, the victim's emotional content is not compromised by any remorse the offender may express, and that the offender, particularly if the offender is a juvenile, does not retreat into silence in the face of the victim's emotional intensity.

In selecting who should speak first, the mediator may have to decide based on the ages, needs, and communication styles of both parties. When the mediator chooses who will initiate the conversation in a particular case, it is important that he or she discuss the decision and the rationale privately with both parties prior to the mediation session. Creating a safe place where both parties feel comfortable enough to engage in an open dialogue to the extent of their ability is ultimately the most important principle, regardless of who speaks first.

Termination of session. An extension of the victim's choice to participate in mediation is the right to end the process at any point. The victim should be informed that mediation remains a voluntary process to the end. If the victim feels uncomfortable or unsafe, the mediator should consult first with both parties and then conclude the mediation session temporarily or terminate the process entirely.

Restitution. A victim has the right to select the restitution option that best meets his or her needs. In addition to reimbursement of out-of-pocket expenses, a victim may request that the offender undertake community service (a public service of the victim's choice), perform personal service for the victim, write a letter of apology, participate in treatment or other programs to improve his or her competence, or complete some other creative assignment. Although the final restitution plan will be negotiated with the offender, the victim must understand that he or she can request a particular compensation, within legal limits.

6. Mediator's Obligations During the In-Person Premediation Session With the Victim

The mediator visits face-to-face with the victim at a convenient time and place. The mediator usually offers to come to the victim's home or to an alternative location if the victim prefers another setting. The purpose of the visit is to establish credibility and rapport with the victim and to accomplish the following tasks: to listen to the victim's stories, to provide information and answer questions, and to assist the victim in considering mediation as an option. During the initial visit, the mediator should ask whether the victim would rather begin by telling his or her story or whether he or she would prefer to learn first about the mediation program.

Listen. A critical task for the mediator is to attend to the victim, listening carefully, patiently, and sympathetically out of a genuine desire to hear about the victim's experience. Effective listening by the mediator gives the victim a chance to vent and validate his or her feelings. The mediator's attentive listening encourages the victim's trust and lets the victim know that he or she is a priority. Occasional informal paraphrasing or summarizing by the mediator assures the victim that the mediator is indeed paying attention and values what is being said.

Provide information and answer questions about—

The mediation program: The mediator needs to give the victim thorough and accurate information about the program itself (both orally and in writing) including its goals, history, the population it serves, and any costs for participants who might be involved. (Note: It should always be free for victims.)

Oneself as mediator: Mediators should offer a few brief words about their mediation training and experience and about themselves personally, as appropriate. Giving information about oneself helps to build rapport and trust with the victim.

The mediation process and its purpose: The victim also needs to know, in some detail, what happens in the mediation process, the role of participants, and its overall purposes.

The judicial system: Victims typically want to know what has happened so far to the offenders and what might occur if they proceed with mediation or if they decline. The limitations of the judicial system should also be addressed. A mediator needs to be attentive to questions that may arise, even after the mediation session.

Victim's rights: A victim should be given a summary of the rights granted to victims in that State. Summaries are available from most of the thousands of system and community-based victim service organizations in large and small communities across America.

Available resources: A mediator must be attentive to the victim's needs and should contact staff, offer resources, or make referrals as requested to local, State, and national organizations or agencies. A mediator should check out the agencies to which referrals are made or make personal followup calls to ensure that the victim's needs are met.

The offender: As a victim begins to consider mediation, he or she may find it helpful to know something about the offender's state of mind and circumstances. Mediators must get the offender's permission before sharing this kind of information.

Discuss risks and benefits and assist victims in decisionmaking. After providing the essential information about victim-offender mediation, the mediator needs to assist the victim in considering the risks and benefits of mediation in his or her particular situation.

7. Mediator's Responsibilities for Carefully Preparing the Victim

After a victim has decided to proceed with mediation, the mediator needs to prepare the victim for what lies ahead. This can be done in the initial meeting or in additional sessions. It is important that the mediation session not be scheduled until the victim feels ready for it. It is also important that the mediator try to accommodate any special needs, such as the need for interpreters or needs related to physical handicaps or mental limitations.

Ensure victim's expectations are realistic. A victim may develop inflated expectations of the mediation process (e.g., reconciliation with the offender, complete healing or peace of mind, rehabilitation of the offender, or total repair of the damage done). Although very positive outcomes are generally experienced by both the victim and the offender, they cannot be guaranteed. The mediator needs to be realistic with the victim, providing accurate information about possible outcomes and the kinds of results that are most typical, with strong caution that each mediation is unique (just as each victim is unique) and cannot be predicted.

Assess losses and needs. Victims may appreciate assistance in identifying losses experienced in the crime and current needs related to the crime. These can include material and out-of-pocket monetary losses as well as less tangible losses affecting their sense of safety and feelings of connection with their community.

Estimate restitution possibilities. A mediator should engage the victim in preliminary brainstorming about the ways losses and needs might be addressed- what it would take to repair the harm done. This process is intended to spark the victim's ideas about possibilities for restitution that may or may not be monetary. This groundwork must be laid before the mediation so that, during the actual negotiation process, the victim has a solid base of ideas to draw from to make the most suitable proposal. Victims, primarily those of violent crimes, should also be informed of State victim compensation, assistance, or other public funds dedicated to reimbursing victim losses.

8. Offender Support

An offender may choose to have a friend or relative accompany him or her to the mediation session. The presence of support persons can reinforce the seriousness of the mediation process. In addition, these supporters may in the future serve as reminders to the offender of the commitments made and as "coaches" who can encourage the offender to fulfill the agreement. Creating a comfortable environment for the offender also makes for a better mediation that benefits the victim, offender, community, and the justice system.

9. Mediator's Obligation During the In-Person Premediation Session With the Offender

In the initial meeting with the offender, the mediator seeks to establish credibility and rapport. To accomplish these tasks, the mediator needs to hear the offender's experiences, offer information and answer questions about the process, and assist the offender in considering mediation as an option. As described in guideline number 6, the mediator, as attentive listener, gains an understanding of the offender's experiences and feelings relative to the crime, provides information, and responds to the offender's questions. The offender needs to know about the mediation program and the mediator, the process itself and its relationship to the judicial system, his or her rights, and available resources. The offender may also have questions about the victim. The mediator must have the victim's permission before reporting what he or she has said. Using all available relevant information, the mediator assists the offender in deciding whether to participate in mediation. It is important that each offender considers the risks and benefits of the process in his or her particular situation. Having a well-informed, willing offender increases the chances that the mediation session will be beneficial for all parties involved.

10. Mediator's Responsibilities for Carefully Preparing the Offender

After the offender has decided to participate in mediation, the mediator needs to prepare him or her for the session. The offender must feel ready to proceed before the mediation session is scheduled. He or she needs a chance to reflect on the crime and feelings about it, as well as an opportunity to organize what he or she wishes to say to the victim. To help the offender try to understand the victim's experience, the mediator may invite the offender to recall experiences of being victimized and then ask him or her to consider what the actual victim might be feeling or might want. These reflections should be within the context that any past victimization the offender may have experienced in no way excuses the choices he or she later made to hurt another person. The mediator may ask the offender what he or she would like to do for the victim. It is also important that the mediator try to accommodate interpreters or any special needs related to physical disabilities or mental limitations.

Ensure offender's expectations are realistic. Offenders may need assistance in maintaining realistic expectations of mediation. An offender may expect that an apology automatically diffuses the intensity of the victim's emotions or that one mediation session erases the harm caused by the crime. The offender's disappointment if such expectations are not met can be detrimental to the victim, who may experience guilt or anger as a result. In any case, an apology has no meaning without true remorse.

Assess victim's losses and restitution possibilities and offender's ability to fulfill agreements. Mediators should assist offenders in thinking about the needs and the losses victims might have experienced, both tangible and intangible, and then engage offenders in preliminary brainstorming about the ways those needs and losses might be addressed, such as what it would take to repair the harm done. Mediators should discuss with offenders what resources might be used in addressing the losses, including present income, income that can be generated by taking additional jobs, and the types of services that he or she can offer to the victim. Offenders should be encouraged to continue thinking of restitution ideas and resources in preparation for the mediation session.

11. Use of Victim-Sensitive Language

Mediators must be careful in their use of language. Certain words and phrases can imply judgment or convey expectation. For example, if a mediator says or implies "you should" to either party, then neutrality is lost, rapport and credibility may be damaged, and a victim may feel pressured and experience a diminished sense of control. The mediator must provide information, present the options, and encourage the victim to make the best decision. Most people are accustomed to seeing professionals or trained volunteers as experts with answers; in contrast, mediators must be vigilant in guarding the choices—and thus the autonomy—of both parties.

It is also important that mediators avoid the use of words such as "forgiveness" or "reconciliation." Again, such words pressure and prescribe behavior for victims. In addition, mediators should try to avoid raising expectations that cannot be fulfilled in a particular case. For example, using words such as "healing," "restoration," and "being made whole" to describe possible outcomes for mediation may elevate victims' hopes unrealistically. In the case of "reconciliation," many victims find this word hurtful because it implies there was a conciliatory relationship in the first place. Some victims may experience a degree of reconciliation, but this must occur spontaneously, without a directive from the mediator. In fact, it is more likely to occur if the mediator avoids directives. Forgiveness also may be expressed during the mediation session, but the mediator's use of the word "forgiveness" may be destructive to the victim. Victims may, for example, feel guilty if they fail to feel forgiving. They may resent the suggestion and shut down to the point that they miss the opportunity to truly express how the crime has affected them, which is typically a component of healing.

12. Use of Humanistic/Dialogue-Driven Model of Mediation

The mediation session itself is guided by a humanistic approach that is "dialogue-driven" rather than "settlement-driven," which includes the following topics (see appendix B, What Is Humanistic Mediation?):

Perspective of the mediator. Through a nonjudgmental attitude and a positive, hopeful demeanor, the mediator conveys his or her trustworthiness and sensitivity to the needs of both parties.

Relaxed, positive atmosphere. The mediator needs to put the parties as much at ease as possible, renew the connections developed in previous separate meetings, and establish an informal yet dignified atmosphere that is conducive to dialogue and constructive problem solving and is of mutual benefit. The mediator should present a calm, centered manner and should not dominate the conversation.

Dialogue between victim and offender. As the mediation session proceeds, time must be allowed for interaction between victim and offender and for personal narratives. Silence must be honored. Time pressures or a focus on reaching agreement can detract from the benefits of dialogue, questions, and answers.

Procedural guidelines. During the initial meeting with each participant and at the beginning of the mediation session, the mediator must discuss the procedural guidelines that shape the process. These guidelines help to establish a safe, structured setting, encourage respectful conversation that acknowledges concerns of each party, and elicit the strengths of the participants. Each party is assured the opportunity to speak without interruption. The mediator, who assumes a nondirective role, guards the process.

Feedback from participants. The mediator needs to maintain attentiveness to the parties, watching for nonverbal cues and perceiving unacknowledged feelings, as well as directly requesting feedback and consulting in private with each party as needed to get further information. The mediator should talk with each party before and after the mediation session to maximize feedback.

Option of followup session. The mediator needs to mention the possibility of an additional session. Some parties find it useful to meet again, for example, to conclude the conversation, allowing for additional thoughts, feelings, or questions to arise; to negotiate further details regarding restitution; or to acknowledge fulfillment of the agreement.

13. Followup After the Mediation Session

It is vital that the mediator follow through on commitments and questions raised in the mediation session. The dependability of the mediator is of utmost importance to victims and offenders.

Completion of agreement. The agreement that is the product of the mediation session needs to be carefully monitored. The mediator should check with the offender periodically to reinforce what was accomplished in the mediation session and to assist with any problems that may interfere with the offender fulfilling the agreement.

Notification of victim regarding status of the agreement. The victim should be notified when the agreement has been fulfilled or if circumstances have changed that may suggest alterations in the agreement.

Scheduling additional sessions if needed. If another meeting is desired by either the victim or the offender, the mediator should contact the parties and negotiate an additional session.

Telephone contact with parties. The mediator should maintain telephone contact with both parties for a period of time following the mediation session, whether the agreement has already been completed or not. A brief check-in may be all that is required. The mediator can serve as a continuing source of information and referral. If the case is not mediated, it may be beneficial, nonetheless, for the mediator or victim support staff to maintain telephone contact with the victim for a period of up to 6 months. Some mediators have found that monthly written progress reports are more meaningful to victims than telephone calls.

Evaluation. VOM programs should establish procedures for evaluation of all mediations. Victims and offenders need to be surveyed to ascertain their satisfaction with the mediation process and its outcome.

14. Training for Mediators in Victim Sensitivity

The initial training and continuing education of mediators should include information on the experiences of victims of crime, referral sources, appropriate communication skills for mediators, victim's and offender's rights, and guidelines for victim-sensitive mediation. Trainees need to hear from victim advocates and victims themselves.

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Guidelines for Victim-Sensitive Victim-Offender Mediation:
Restorative Justice Through Dialogue
April 2000
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