In the past few decades, it is possible to take note of the rise in two distinct considerations to criminal justice. The approaches are inclusive of restorative justice initiatives and initiatives in support of private law enforcement[1]. The approaches arise out of a number of ideological orientations that are either more responsive to crime control, or they might be exhibiting a movement towards addressing some of the psychological needs of perpetrators and victims of a crime. This paper looks into ideology of mediation, thereby discussing some of the provisions in this ideology when used in restorative justice, civil litigation as well as family law.
Even though some of the restorative justice programs are sometimes applicable to violent felonies, most of the restorative justice programs are practically limited to relatively minor offences such as minor assaults, theft and vandalism[2]. On this note, it is vital to take note of the fact that victim-offender mediation is the most popular type of restorative justice used in the country[3]. It exhibits a slight similarity to civil mediation, but the difference emanates from the fact that a civil law mediator assumes a neutral position in the facilitation process, and he or she is not in a position to pass judgment on whichever side[4].
It is possible to determine that the public system has not been able to provide adequate resolutions for some of the criminal activities related to intra-family violence. Many practitioners in the domestic violence field have come across scenarios that involve wife battery, or when a boyfriend commits violence against a victim[5]. Mostly, the victims will not call the police since the police are highly likely to make an arrest[6]. Since the victim might find it difficult to see their loved ones going to jail, or they might be afraid of testifying against the offender, they are likely to refuse to cooperate. Consequently, the inherent delay in the criminal justice system might give the couple time for reconciliation, thereby making prosecution difficult. For this reason, through the criminal mediation system, it would be possible for the mediator to assist the partners to resolve some of their issues.
Through some of the neighborhood justice centers existing in a number of states, which consist of community boards, it is possible to solve some of the civil cases existing in the states. Some of the cases that the community boards hear are inclusive of civil disputes such as landlord/tenant disputes, harassments, assaults, and noise, among other disputes[7]. However, the main model in a private criminal law system involves large companies and victims. Despite this fact, the main aim of the privately run organizations is the mediation of criminal disputes between some of the members of the subject communities[8].
An example of the privately run organizations includes some of the community boards that exist in San Francisco. Instead of calling the police, a victim in the area could get into contact with the community boards, upon which the case developer will be able to interview the victim as well as the perpetrator[9]. The mediators, also known as “neutrals,”[10] will then listen to what both sides have to say, and by guiding the discussion, after which they will leave it for the parties to come up with a resolution. This is a consideration that occurs most of the time[11].
[1] Florida State University Law Review. Tallahassee: Florida State University, College of Law, 3, 5 (1973).
[2] Chall, Leo P. Sociological Abstracts. San Diego, etc: Sociological Abstracts, 244-246 (2003)
[3] Engel, Martin. Collaborative Law: Mediation Ohne Mediator. Tübingen: Mohr Siebeck, 318, 319 (2010)
[4] Patrick Glen Drake, Victim-Offender Mediation in Texas: “When Eye for Eye” Becomes “Eye to Eye,” 47 S. Tex. L. Rev. 647, 665 (2006)
[5] Bureau of Justice Statistics, U.S. Dep’t of Justice, Intimate Partner Violence, 1993-2001 at 1 (2003), retrieved from: <https://www.ojp.usdoj.gov/bjs/abstract/ipv01.htm> (stating that eighty-five percent of victimizations by intimate partners in 2001 were against women).
[6] Linda G. Mills, Killing her Softly: Intimate Abuse and the Violence of State Intervention, 113 HARV. L. REV. 550, 558 n.32 (1999) (listing jurisdictions with mandatory arrest policies for domestic violence).
[7] Rayburn, supra note 171, at 1206. Although the victim can initiate the process, the Community Boards also take referrals from courts. Id.
[8] Menkel-Meadow, Carrie. Dispute Processing and Conflict Resolution: Theory, Practice and Policy. Aldershot: Ashgate, 227 (2003)
[9] Id. at 1208
[10] Id. at 1206-7.
[11] Id. at 1207.
Bibliography
- Bureau of Justice Statistics, U.S. Dep’t of Justice, Intimate Partner Violence, 1993-2001 at 1 (2003). Retrieved from: <https://www.ojp.usdoj.gov/bjs/abstract/ipv01.htm>
- Chall, Leo P. Sociological Abstracts. San Diego, etc: Sociological Abstracts, (2003)
- Engel, Martin. Collaborative Law: Mediation Ohne Mediator. Tübingen: Mohr Siebeck, (2010)
- Florida State University Law Review. Tallahassee: Florida State University, College of Law, (1973).
- Jill Richey Rayburn, Note: Neighborhood Justice Centers: Community Use of ADR — Does It Really Work? 26 U. Mem. L. Rev. 1197, 1200 (1996).
- Legal Action: The Bulletin of the Legal Action Group. London: The Group, (1984)
- Linda G. Mills, Killing her Softly: Intimate Abuse and the Violence of State Intervention, 113 HARV. L. REV. 550, 558 n.32 (1999)
- Menkel-Meadow, Carrie. Dispute Processing and Conflict Resolution: Theory, Practice and Policy. Aldershot: Ashgate, (2003)
- Patrick Glen Drake, Victim-Offender Mediation in Texas: “When Eye for Eye” Becomes “Eye to Eye,” 47 S. Tex. L. Rev. 647, 665 (2006).
- Uc Davis Journal of Juvenile Law and Policy. Davis, CA: Advocates for the Rights of Children, (1996)