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Overview:Victim-Offender Mediation: An alternative to the Criminal Justice System?

Published on : 22 Dec 2019

Victim-Offender Mediation: An alternative to the Criminal Justice System?

Abstract: Victims feel progressively baffled and estranged by our current frameworks for justice. Despite the fact that the criminal justice framework exists accurately, victims abused by criminal conduct have no legitimate remaining during the time spent getting justice. Traditionally, mediation is seldom used as a method of dispute resolution. Does restorative justice bring justice to the victim for the crimes of the criminal offender? The idea of mediation is to create an opportunity for both sides to voice themselves; to give the victim the opportunity to articulate the effect the crime has had on them while simultaneously allowing the offender to show repentance for his offence, owning up to his actions that have profoundly affected the victim while atoning for it.

1. Introduction

Therapeutic victim-offender mediation is a relatively niche area within the traditional criminal justice process. This method of mediation has a high potential for rehabilitation of the criminal offender giving him the opportunity to redress whilst righting his wrongs under the alternate dispute resolution philosophy. Ideally, any judiciary’s opinion about restorative justice depends on their belief of how much potential a criminal offender to rehabilitate himself, and whether the level of seriousness of his crime even gives him access to this method of mediation. In simple words, if the court believes there is very little scope for the rehabilitation of the criminal offender, they would not allow a victim-offender mediation program.

It is debatable whether the justice system concentrates on the wounded or even the wrongdoers, however, the justice system is concerned about reprisal and finding suitable types of discipline and punishments. Victim-offender mediation usually handles crimes of not the most severe nature but ones like minor property related matters, juvenile crimes, etc.

It is again debatable whether an adequate opportunity is provided to either the victim or the criminal offender in the justice process. If provided a measured environment with enough supervision, having the criminal offender and victim face each other and express themselves may give positive outcomes in the long run. The victim is able to completely realise the gravity of the situation and how it has affected them, whilst voicing it directly to the criminal offender, who is made to realise the negative and deep impact it has on the life of a person, in the hope that rehabilitation is an option, and that restorative justice could be an essential tool to humanizing the criminal justice process. It may not match up to the turmoil that the victim has faced, but it may provide a level to satisfaction that the victim was given an opportunity to face the offender and say things to relieve them of the trauma mildly, if not substantially, instead of having to hold their peace about not being given the chance to do the same.

Victim-offender mediation may prove to be an excellent alternative to the current criminal justice procedure around the world. It is pertinent to note that it is voluntary, which means if only the victim wants to pursue this method of alternative dispute resolution, should they be allowed this option. Alternately, there is always the traditional criminal proceeding mechanism available.

2. What Is Restorative Justice Practice?

Tony Marshall of the Restorative Justice Consortium (United Kingdom) proposed a valuable working meaning of Restorative Justice:

“Restorative justice is a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.”

 While Tony Marshall’s definition feels incomplete, it provides a gist of the concept behind restorative justice, which is two-fold:

  1. Victims and their wrongdoers in the case are in an up-close and personal space, and
  2. The aim of this congregation is to arrive at a conclusion.

According to Marshall, each subdivision of mediation developed freely and have impacted and complemented one another. The branches are mainly: community mediation, victim-offender mediation and victim-offender reconciliation programs.

Therapeutic restorative justice depends on qualities that stress the significance of giving open doors for the increasingly dynamic association through dialogues in the procedures of offering backing and help to the aggrieved party. It is important that the victim is actively involved in the criminal justice procedure.

The focus of restorative justice is to repair the harm. It focuses on giving the offender the chance and opportunity to hold himself accountable for his actions, to realise the gravity of his actions, and if permissible, be granted a way to right his wrongs. Restorative justice promotes addressing of all the issues in person and to mutually reach an understanding of what the next step should be towards the justice of the victim.

Conferencing, which is branch of victim-offender mediation, refers to the procedure where the victim, the offender and their supports (moral supporters or otherwise) along with certain community members work towards reparation in the presence of a neutral and unbiased third party.

3. How Does Victim-Offender Mediation Work?

An unbiased third party intercedes an exchange among victim and the guilty party who:

  • Talk about how the wrongdoing influenced them;
  • Express their side of the story;
  • build up a commonly acceptable composed compensation assertion;
  • build up a subsequent arrangement, in this way empowering the aggrieved and the offender to conclude the remedial procedure.

4.  Need For Restorative Program In The Criminal Justice

In the traditional retributive justice system, crime is demarcated by the violations of the prevalent criminal legislation of a country. Restorative justice, on the other hand, takes into the account that the crime against the victim is defined by the harm caused. Restorative justice humanises the criminal justice process.

In a victim-offender mediation, the victim and the offender directly involved in the case are the primary parties. They have direct involvement at each stage of the mediation process which evolves with the changing needs of the parties.

While retributive justice focuses on the offender being punished for the crime committed, restorative justice, on the other hand, demands that if the case allows, the offender be allowed to make his wrongs right. It demands that the victim direct in deciding how he wants justice to be served, and what action needs to be taken. It is essential that the victim is satisfied at the end of any proceeding or path he chooses. When victims have the open door for direct association with the offender, such cooperation can be transformative- from enduring in silence to shared mending, from detachment to network support, from frailty to strengthening, from melancholy to reengagement.

Restorative justice additionally takes into account ‘society’ as an interested party in criminal cases. The crime committed by the offender not only affects the victim directly or abuses the legislative system of a country, but also affects the general public at large.

5. Advantages Of Victim-Offender Mediation

5.1 The Victim

It is essential that at apposite stages of a case, inputs of the victim should be inculcated while arriving at an outcome suitable. The fact that the restorative justice system adds the human factor while delivering justice, is the main reason that it benefits the victim. This form of mediation and justice process gives a chance to the victim to recuperate from the deep, traumatising effects of the crime, mentally and emotionally, by allowing them to sit face-to-face with their offenders and talking to them at intervals convenient to them. This has a liberating advantage for the victim since it relieves them of the questions about the crime that daunts them, as they can directly get answers from the offender.

An important benefit of this system to justice is that victim-offender mediation allows the victim, who is directly affected by the crime, to devise a personal restitution agreement. It is important to note that the intention is not to let the victim individually decide what the punishment for the offender should be, but to allow the victim to have a say in an outcome favourable to him, or to his satisfaction. The idea of justice differs from person to person and it is important in a case where the victim is affected, that he has a say in what would bring him justice.

The involvement of victims in criminal cases is unique to that followed traditionally by criminal courts. The courts ordinarily are worried about reformatory compensation fundamentally through fines or detainment; victim-offender mediation uses individual restitution that is fittingly custom to the victim and the offender. Mediations are tailored for each case.

In an article by Howard Zehr titled ‘Justice paradigm shift? Values and visions in the reform process’, six questions were stated that goes through the mind of the victim which he/she seeks answers to. The questions are as follows:

  1. “What happened?
  2. Why did it happen to me?
  3. Why did I act as I did at the time?
  4. Why have I acted as I have since that time?
  5. What if it happens again?
  6. What does this mean for me and for my outlook, my faith, my vision of the world, my future?”

The benefit of victim-offender mediation for the victim is that the victim can personally get the answers to these questions directly from their criminal offender. Once the victim has the responses to these questions when they are given an opportunity to reflect on them, they also have the chance to be heard, and more importantly, it allows them to directly say it to the offender.

In line with Zehr’s opinion on what victims demand, Heather Strang in an article titled ‘Repair or Revenge: Victims and Restorative Justice‘ also concluded in her own way what the victim needed; in her opinion, she felt the following was needed by victim in a criminal justice system:

  1. Involvement in the process as well as the end result.
  2. To be dealt with consciously and reasonably.
  3. An expression of remorse for emotional rebuilding.
  4. Being allowed to take part in their case.
  5. Monetary compensation.
  6. A semi-formal procedure where they are valued.