Mediation In Juvenile Criminal Cases In 1974, two youths in Kitchener, Ontario, Canada, went on a crime spree, robbing and

vandali ing !1 homes" #hey paid $or their crimes by visiting each o$ the !1 victims, apologi ing $or the damage they had caused, and paying restitution" #wo decades ago, this approach was considered unorthodo%, even $or &uvenile o$$enders" #oday, it would meet with much resistance $rom individuals advocating strict penalties $or lawbrea'ers" (et, in several countries, including Canada, )ngland, *inland, and even in the +nited ,tates, rather than going through the traditional &uvenile &ustice system where the basic choice is ad&udicate or ignore, young o$$enders are being given the opportunity to meet their victims" #ogether, they discuss what the o$$ender did and why- how the o$$ense a$$ected the victim- and how the o$$ender might ma'e amends" In short, o$$enders and their victims are engaging in mediation" #.) J+/)0I1) J+,#IC) ,(,#)2 Individuals who have e%perience with the &uvenile &ustice system 3 including victims, witnesses, and criminal &ustice pro$essionals 3 usually voice two ma&or complaints" *irst, many believe that &uveniles o$ten get away with criminal activity" ,econd, victims o$ten seem to have no input into delin4uency matters" #hese complaints result in disillusionment and a belie$ that o$$enders generally are not held accountable $or their actions" Crowded court calendars o$ten mean that &uvenile cases never get ad&udicated" )ven when ad&udication results, young o$$enders usually receive probation" #hus, &uveniles come away with very little understanding o$ what drove their antisocial behavior in the $irst place and are even less enlighten about how to change the behavior" 2ore $undamentally, they $ail to reali e why the behavior must change" Once they have met all o$ the court imposed re4uirements i$, in $act, there are any &uveniles are $orgotten, until the ne%t time they commit a crime" In the meantime, &uvenile crime rates continue to soar"

1ost in the statistics and the politics lies the very purpose o$ the &uvenile &ustice system and its historical vision, which is that the system should emphasi e the 5best interests o$ the child"5 .owever, this view $ails to recogni e that &uvenile o$$enders create victims, and victims su$$er pain and loss" +n$ortunately, these victims o$ten $eel abandoned by a complicated system that seems $ar removed $rom the ideal o$ real &ustice" Indeed, they $re4uently are le$t in the dust and debris o$ a &uvenile system that $ails to e4uate accountability and6or responsibility $or o$$enders with the victim7s best interests- or worse, the system $ails to consider accountability as important as administrative e$$iciency and $iscal conservatism" In response, the &uvenile &ustice system must identi$y and use a broad range o$ dispositional alternatives, including mediation" 2)8I9#IO030O# 9 0): CO0C);# 2ediation programs involving criminal o$$enders and victims currently e%ist in many +"," cities, in )urope, and in Canada" #he case outlined earlier represents one o$ the $irst e%amples o$ &uvenile o$$ender3 1

victim mediation" Known as the Kitchener )%periment, or more $ormally, the /ictim6O$$ender <econciliation ;ro&ect =/O<;>, it began as a cooperative e$$ort between the local probation o$$ice and several civic leaders, together with a &udge who was willing to try an unorthodo% approach" +sing a 5structured system o$ cautioning5 that punished victims according to their o$$enses, the team developed a reparation plan that $irst contemplated voluntary monetary restitution to the victim, but subse4uently introduced the idea o$ mediation" #he program provided a meaning$ul opportunity $or o$$enders to ma'e amends and to meet the needs o$ victims" +nli'e the /O<; program in Canada, which involved post conviction restitution, the )%eter program re4uired mediation and reparation prior to any court appearances" In general, e%perts believe that the most e$$ective &uvenile o$$ender3victim mediations ta'e place shortly a$ter the o$$ense, while the memories o$ the parties involved are still $resh" 9 burgeoning prison population in the late 197?s prompted *inland to try mediation" *inland7s program emphasi ed the process o$ mediation and wor'ed to increase 5understanding and tolerance among people within the community"5 #ypical agreements involved restitution or in3'ind compensation and the o$$ender7s written promise not to engage in the o$$ending activity again" )ventually, &uvenile mediation made its way to the +nited ,tates" One approach, the /ictim O$$ender 2ediation ;rogram, began in 9lbu4uer4ue, 0ew 2e%ico, in 19@7 as a combined public and private sector venture" Initially, most cases were re$erred $or mediation at the pread&udication, or diversion, stage" #oday, the &uvenile court also re$ers cases $or mediation at the post ad&udication level" 9ccording to a survey conducted by the ;risoners and Community #ogether Institute o$ Justice in /alparaiso, Indiana, more than A! programs in the +nited ,tates provide some type o$ victim3o$$ender mediation"7 Other sources identi$y many more"@ One thing is clear, though" 8espite the limited amount o$ in$ormation available on mediation programs, their numbers continue to grow" :.( 2)8I9#)B ,ome e%perts suggest that in order to impress upon &uvenile o$$enders that society ta'es their crimes seriously, all o$$enders should $ace criminal court proceedings" .owever, there simply are not enough courts and prosecutors to pursue that approach" Juvenile courts already are overcrowded, even though they hear only a $raction o$ all delin4uency charges" Indeed, the number o$ courts and prosecutors needed to ad&udicate every &uvenile case would be staggering" 9ccording to the *CI7s +ni$orm Crime <eports =+C<>, in 199!, &uveniles 9 accounted $or 1D percent o$ the total arrests o$ individuals who ranged in age $rom 1? to !1, or almost ! million violations" #hey accounted $or about !9 percent o$ total inde% crimes" In other o$$enses, which include those that many would not consider criminal acts33such as running away, vagrancy, and brea'ing cur$ew &uveniles accounted $or 1A percent" In many urban areas, &uveniles commit nearly one3hal$ o$ all reported crimes" )ven these statistics do not re$lect the total number o$ crimes committed by &uveniles, however" +C< records only the number o$ crimes $ormally reported and documented" In $act, in many &urisdictions, when &uveniles commit crimes, arresting o$$icers commonly handle them without $iling reports" Instead, they !

might ta'e &uveniles to their parents, arrange $or some $orm o$ restitution, or ma'e some other in$ormal arrangement" *urthermore, many victims o$ &uvenile crime do not report the incident to police because they believe that nothing will be done, or because they choose to handle it alone" O$ten, then, in$ormal dispositions concerning delin4uent activity amount to conciliation or a $orm o$ in$ormal mediation, occurring without the sanctions o$ the &udicial system and outside any organi ed strategy $or alternative dispute resolution" Jurisdictions with &uvenile courts usually handle only serious crimes or repeat o$$enders" 2any &urisdictions do not have separate &uvenile courts- o$ten, &uvenile cases emanate $rom probate or domestic relations courts, which do not place much emphasis on &uveniles" #he result simply is that many thousands o$ &uvenile cases are handled too in$ormally, are diverted to a variety o$ programs, or are &ust ignored" 9 19@E study indicated that depending on the crime, &uveniles were charged =a process 'nown as petitioning> in E1 to DA percent o$ all reported cases involving nonstatus crimes" O$ those, only E@ to DD percent were ad&udicated" <eplacing the percentages with numbers gives reason $or concern" *or every 1??,??? o$$enses, at best, only DA,??? will be petitioned, and o$ those, only 41,E@? will be ad&udicated" #hese numbers probably are much worse today, particularly in urban areas, where a deluge o$ cases overrun inade4uate &uvenile court systems" 1aw en$orcement o$$icers around the country can corroborate the seriousness o$ the problem" 9lthough o$$icers arrest many &uveniles $or increasingly serious crimes, the o$$enders seldom, i$ ever, attend &uvenile court" ,ociety insists that o$$enders be held responsible $or their past acts, but does not necessarily want them to pay a $ine or be incarcerated" *or some, responsibility may mean saying, 5I7m sorry,5 and6or undergoing some type o$ rehabilitation program" Cut typically, most &uvenile o$$enders go unpunished, and debate continues over the e$$icacy o$ rehabilitation programs now in use" 9 2O8),# ;<O;O,91 Cecause most &uvenile delin4uency consists o$ relatively minor o$$enses such as property crimes and minor assaults, and because the standard &uvenile &ustice system does a poor &ob o$ controlling &uvenile crime and addressing victims7 needs, it seems reasonable to loo' to mediation as a wor'able approach to satis$y the interests o$ society, the victim, and most important, the young o$$ender" #here is merit in having a mediation program as part o$ every &uvenile court and probation system" <ather than simply dismissing a case, the arresting o$$icer or the prosecutor can o$$er eligible o$$enders the option o$ mediation with victims be$ore the case goes to court" 9ll $irst3time o$$enders accused o$ minor o$$enses can be given the opportunity to participate in victim3 o$$ender mediation on a strictly voluntary basis" O$ course, the cooperation o$ victims remains critical" I$ a victim adamantly re$uses to meet with a &uvenile, the case must proceed along the standard ad&udication6diversion path"

,imilarly, i$ the &uvenile will not admit to the o$$ense or otherwise re$uses mediation, the case must proceed in the usual way" 9s a practical point, however, the courts should not dismiss any case unless, o$ course, the evidence, or lac' thereo$, indicates dismissal" Juveniles who e%pect to have their charges dismissed have no incentive to participate in mediation" )ither paid sta$$ or volunteers, with appropriate training, can act as mediators" 2ost important, both the victim and the o$$ender must agree on the mediator" Coth parties also should agree on the mediation setting, usually a neutral location" ,ometimes, particularly i$ the o$$ense involves property damage, meeting at the scene o$ the crime might prove bene$icial" .aving o$$enders see the damage they have caused could be a power$ul educational and rehabilitative or reparative tool" 8uring mediation, each party must be allowed to spea' $ran'ly and $ully" :hen the victim and the o$$ender $reely discuss the causes and e$$ects o$ the o$$ender7s act and ways $or the o$$ender to ma'e amends to the victim, they may ta'e a ma&or step toward preventing $uture o$$enses" 9 mutually acceptable restitution or reparations agreement should include a timetable $or completion" I$ o$$enders $ail to $ul$ill the re4uirements in the allotted time, their cases are remanded to the ad&udication stream, and the &udge decides appropriate restitution" *urthermore, o$$enders who $ail to see the mediation process to a mutually acceptable conclusion also must $ace the &udge" .owever, when o$$enders success$ully complete mediation and reparations, the court no longer has &urisdiction over them" +01I2I#)8 ;O#)0#I91 9lthough many &urisdictions base the decision to ad&udicate on whether the o$$ense is a misdemeanor or a $elony, mediation has been used success$ully $or both" 2ediation most o$ten involves instances where the primary victim is an individual, rather than the ,tate" Consistently using mediation in these types o$ cases would ma'e &uveniles eligible $or mediation in @A percent o$ inde% crimes and E? percent o$ the noninde% crimes" In 1"! million cases, then, mediation could be o$$ered" #hough it seems rather optimistic, this pro&ection actually might be 4uite conservative" *or e%ample, variations o$ mediation could be used in other crimes, such as drug abuse or drun' driving" In addition, some assaults and even some arsons could be candidates" 9 :O<8 O* C9+#IO0 #he bene$its o$ mediation must be weighed against its costs" *irst, re$erring cases $or mediation may not reduce the caseload handled by the traditional &uvenile &ustice system" 9s more cases enter mediation, cases that have been handled in various other ways will ma'e their way into the &uvenile courts" #he $inancial cost o$ mediation varies with the structure o$ mediation schemes" Cecause the process can be 4uite time3consuming, costs can be high, especially in &urisdictions where paid sta$$ members handle mediations" (et, mediators need not be e%pensive pro$essionals- rather, they should be people who possess su$$icient understanding o$ the procedures and parameters o$ the program" Overall, mediation stands as a cost3e$$icient means o$ disposing o$ many cases"