V.O.R.P.

Victim-Offender Reconciliation ProgramFor Rutherford County, Tennesse

Tennessee Legislation in 1993

The resolution of felony, misdemeanor and juvenile delinquent disputes can be costly and complex in a judicial setting where the parties involved are necessarily in an adversary posture and subject to formalized procedures; and

Tennessee Legislation in 1993

Victim-offender mediation centers can meet the needs of Tennessee's citizens by providing forums in which persons may voluntarily participate in the resolution of disputes in an informal and less adversarial atmosphere.

Tennessee Legislation in 1993

It is the intent of the general assembly that V.O.R.P.

Stimulate the establishment and use of victim-offender mediation centers to help meet the need for alternatives to the courts for the resolution of certain disputes;

Tennessee Legislation in 1993

Encourage continuing community participation in the development, administration, and oversight of local programs designed to facilitate the informal resolution of disputes between and among members of the community;

Tennessee Legislation in 1993

Offer structures for dispute resolution which may serve as models for centers in other communities; and

Serve a specific community or locale and resolve disputes that arise within that community or locale

Conflict-Dispute Resolution

One-to-one NegotiationLitigationArbitrationMediation

Negotiation?

The Norm: Adversarialism

Outside rules govern outcomesStrict Rules determine availability of

factsDisputants can reveal only strengthsDisputants rely on positions bases on

strengthsOutside authorities make the decisionsResolutions are win-lose propositions

See YOU in court !

Mediation

Small Beginnings

What is Mediation?

Mediation is voluntary (?)Mediation is non-adversarial

There is no finding of “truth” Resolution is based on consensus

Mediation is confidentialMediation is informal

Mediation; How is it different

Disputants govern outcomes’Disputants determine the rules of

procedureDisputants can safely reveal all issuesDisputants seek to understand and rely

on interests, rather than positionsDisputants make the ultimate decisionsResolutions can be win-win propositions

Dispute Resolution Spectrum

S u b s ta n tiv eL a wC o ns titu tio nS ta tu te sR e gu la tio nsJ u d ic ia lD e c is io ns

Ch aracte r istic Tria l Arb itratio n M e d iatio n

In v o lu n tary -Vo lu n tary ?

In vo lu n ta ry, an yo n ema y co mp e l u s to

b e a d e fen d a n t

Both: any one may f orc eus to def end, w e may

agree to arb itra te.

V oluntary , w e may bef orc ed to tr ia l, no one may

f orc e us to mediate.

Ad v e rsarial -No n -ad v e rsaria l ?

Ad ve rsa r ia l Ad ve rsa r ia l No n -a dve rsa r ia l

Rig h ts Base d -In te re st Base d ?

R ig h ts Ba se dRights B as ed, but

rights m ay be ignoredor c hanged.

In te re st Ba se d

Pro ce d u ral -No n -Pro ce d u ral

Bo u n d ?Pro ce d u ra l Bo u n d

S em i-P roc eduralB ound, we m ay agreeto c hange proc edure.

No n -p ro ce du ra lb o u nd , we must

a g ree o n th e ru le s.

Au th o ritativ eDe cisio n make r ?

Judge is a th ird-party ,authorita t ive

dec is ionm ak er.

A rbitra tor is a th ird-par ty ,author ita tiv e

dec is ionmaker .

Me d ia to r can n o td e cid e , o n ly th e

p a rtie s.

Rig h t o f Ap p e al ? Ye sUsu a lly no t, by

a g ree me n t.No n -a pp lica b le .

R ights:G if t o r T r u s t?

P ro ced u re :S ta n din g &R e le v a n ce

Inte re stsF u tu re

R e latio n s h ip sE m o tio n sE c o n o m ic

F am ily

In d iv idu alC o m m u n ity

G rie fF am ily M e m b e rs

T h re e B a s ic D is p u te R e s o lu tio n M e th o d s

P roced u ral

L a w

R u les o f

E v ide nce

R u les o f

P ro c e d u re

sine qua non of Mediation

Self Determination by EmpowermentContinuing relationships

Judges, Counselors & Mediators

Judges Counselors Mediators

Decide Advise and NeitherDecide norAdvise nor

Recommend Recommend

Why Mediation is Successful

Mediator is trained to EmpowerMediator is a PeacemakerMediator builds Rapport with

everyoneMediator looks for:

what the disputants want, not what the mediators thinks they

deserve or need

Restorative Justice

A Mediation Approach

Distributive Justice

Does it need fixing?

Problems with the Criminal Justice System

Professionals do not possess the specific knowledge of the parties needs.

Professionals necessarily operate within bureaucratic and procedural priorities that reflect the needs of the system.

Professionals assume the ownership over responses and outcomes and force them on others.

Problems with the Criminal Justice System

The criminal justice system disempowers all parties

The criminal justice system fails to acknowledge that crimes violate specific people

A Reconceptualization

EmpowermentAParadigm of Justice

Four Tenets of anEmpowerment Paradigm

Reversal of Moral Disengagement

Social and Moral Development

Emotional & Moral Psychological Healing

Reintegrative Shaming

Reversal of moral disengagement (1)

When people harm others they tend to silence their conscience by moral disengagement:

Rationalization about good consequences that outweigh the bad ones, e.g., “with this money I’ll do good things.”

Reversal of moral disengagement (2)

Obscuring or lessening personal responsibility, e.g., “I played a very small role in the act,” or “others do it, so why can’t I?”

Denial of the seriousness, e.g., “they will never miss the goods,” or “they can get insurance money to replace them.”

Reversal of moral disengagement (3)

Blaming or dehumanizing or otherwise derogating the victim, e.g.,

“foolish people; they should not have left the window open,” or “Serves them right. They should not have…………”

Social and Moral Development

Restorative justice meetings explore the personal aspects of why the crime is morally wrong, especially when the offender’s friends and family express their views about the wrongful and harmful action of the offender.

Emotional and Moral Psychological Healing

Material Reparations: Restitution and Compensation Agreements

Symbolic Reparations: Gestures and expressions of courtesy, respect, remorse and forgiveness. Key: The Dialectics of the Offender’s

apology and Victim’s forgiveness.

Reintegrative Shaming

Shaming by relatives, friends and neighbors has a controlling effect on offenders.

(Constructive shaming involves a distinction between what offenders did and who they are, with relatives, friends and neighbors condemning the act while accepting the person.)

Two Basic Types of Mediation

NarrowBroad

Narrow Mediation

Focuses on the immediate problemFocuses on the disputants’ POSITIONEmphasizes strengths and

weaknessesAuthoritarian regimes overshadow

the process

Broad Mediation

Helps disputants understand underlying issues

Focuses on the disputants’ INTERESTIncorporates underlying issues in the

settlement

Two Types of Mediators

EvaluatorFacilitator / Peacemaker

Mediator as Evaluator

Assesses strengths and weaknessesPredicts outcome if no settlement is

reachedProposes terms of settlementUrges & pushes disputants to

settlement

Mediator as Facilitator / Peacemaker

Helps disputants evaluate their positions

Helps disputants understand common interests

Provides safe area where problems can be explored

Helps disputants develop solutionsAsks about likely outcomes

Two Basic Methods of Mediation

ConferenceCaucus

The Conference Method

Disputants remain face-to-faceThe process is basically negotiationMediator is like a parliamentarian

The Caucus Format

Disputants meet in a opening session

Mediator meets separately and alternatively with each party

Disputants can share weak points with mediator in confidence

Four Phases of VOM Process

Intake Phase

Preparation for Mediation Phase

Mediation Phase

Follow-up

Staff Responsibility

Mediator

Mediator

Staff or Mediator

Preparation For Mediation Phase

Call or Meet with offender: Listen to their story Explain mediation process Secure agreement to mediate Prepare for participation

Preparation for Mediation Phase

Call or Meet with Victim: Listen to their story Explain mediation process Secure agreement to mediate Prepare victim for participation

Preparation for Mediation Phase

Arrange for an appropriate place to meet

Schedule the mediation sessionConfirm all arrangements by mail

The Mediation Session

Goals and Procedures

The Purpose of the Meeting

To provide a restorative conflict resolution process that actively involves victim & offender in repairing the emotional & material harm caused by the offense.

The Purpose of the Meeting

To provide an opportunity for victim and offender to discuss the offense, get answers, express feeings, and gain a greater sense of closure.

The Purpose of the Meeting

To provide an opportunity for victim and offender to develop a plan that addresses the harm caused by the offense and ways to prevent it in the future.

Mediation Session: Procedure

Introductions: the more informal, the better

Explanation of the purpose of the meetingExplain your role as mediatorExplain the voluntary nature of mediationExplain that the court will have to

approve any agreement

Mediation Session: Procedure

Recognize the injustice/violation by asking for a discussion of what happened

Move to a discussion of how people feel then and now

Move to a discussion of how to restore equity

Ending the Mediation Session

Review what has been accomplished, regardless of what you think about what was or was not concluded.

Reduce any appropriate agreements to writing.

Congratulate all of the participants and discuss any follow-up.

The Final Report

Maintain copy of final agreementHave the evaluation form completedReturn all case materials to the case

manager

16-20-103. Confidential and privileged documents and communications.

All memoranda, work notes or products, or case files of centers established under this chapter are confidential and privileged and are not subject to disclosure in any judicial or administrative proceeding unless the court or administrative tribunal determines that the materials were submitted by a participant to the center for the purpose of avoiding discovery of the material in a subsequent proceeding. Any communication relating to the subject matter of the resolution made during the resolution process by any participant, mediator, or any other person is a privileged communication and is not subject to disclosure in any judicial or administrative proceeding unless all parties to the communication waive the privilege. The foregoing privilege and limitation on evidentiary use does not apply to any communication of a threat that injury or damage may be inflicted on any person or on the property of a party to the dispute, to the extent the communication may be relevant evidence in a criminal matter. Such communications shall not be construed to be public records pursuant to title 10, chapter 7.

16-20-105. Immunity from suit.

(b) Employees and volunteers of a center are immune from suit in any civil action based on any proceedings or other official acts performed in their capacity as employees or volunteers, except in cases of willful or wanton misconduct.