Workshop on “Victim-Offender Mediation? ”

For 2011 International Conference Crime Prevention and Offender

Rehabilitation on 18th May 2011

Ms. Sylvia Siu, JP

Deputy Chair of Society for Rehabilitation and Crime Prevention of Hong Kong Past President & Chairman of Board of Governor of Hong Kong Mediation CentreADR Chairman of Hong Kong Federation of Women Lawyers

Siu Wing Yee, Sylvia, J.P. sylviasiu@sfks.com.hkc/o Messrs. Sit, Fung, Kwong & Shum18/F., Gloucester Tower, The Landmark, 11 Pedder Street, Central, HK.

EDUCATION B.S.C. (Bachelor of Science in

Commerce), University of Santa Clara, U.S.A.

M.B.A.(Master of Business Administration) University of Santa Clara, U.S.A.

Diploma in Chinese Law, University of East Asia, Macau

LL.M. (Master of Law), University of Hong Kong

QUALIFICATIONS Solicitor of The Hong Kong Supreme

Court Solicitor of The Supreme Court of

United Kingdom Barrister and Solicitor of The

Supreme Court of the Australian Capital Territory

Barrister of The High Court of Australia

Advocate and Solicitor of The Supreme Court of Singapore

China-Appointed Attesting Officer by the Ministry of Justice, People's Republic of China

Fellow of The Chartered Institute of Arbitrator and Hong Kong Institute of Arbitrators Limited

Accredited Mediator of The Law Society of Hong Kong, Hong Kong Mediation Centre, the Hong Kong International Arbitration Centre and Centre for Effective Dispute Resolution (Commercial, Family Supervisors and Family Panels)

Conciliator of Harbin Conciliation Centre of China Council for Promotion of International Trade

Arbitrator of Suzhou, Guangzhou, Chengdu, Shenyang, HuiZhou, TsingTao Arbitration Commission

Arbitrator of CIETAC Arbitrator of Wuhan International

Arbitration Court Visiting Professor of University of

Economics and Commerce of Hebei Guest Professor of Hebei Civil and

Commerce Law Academy

ACTIVITIES WITHIN THE LEGAL PROFESSION

The Law Society of Hong Kong Council Member Chairperson of CPD Accreditation

Committee Member of Overseas Lawyers

Qualification Examination Committee Member of Standards & Development

Committee Hong Kong Federation of Women Lawyers President from 1987 to 1990, 1996 to 1999 International Relationship Chairman

since 1999 ADR Chairman since 2001

Basic Law Institute Limited Council Member since 2001

Bar Association Free Legal Service SchemeAdvisory Board Member ACTIVITIES RELATING TO ADRHong Kong Institute of Arbitrators President (2004-2005)

Hong Kong International Arbitration Centre

Advisory Council (as Law Society representative) (2002-2008)

Hong Kong Mediation Centre Founder and Chairman of the Board

Governors

Chief Justice’s Working Party on Mediation Member

Secretary for Justice’s Working Party on Mediation Member

Working Party on Reform of the Law of Arbitration in HK and Draft Arbitration Bill Member

Chinese University School of Law ADR PCLL External Examiner (since

2009)

GOVERNMENT APPOINTED ACTIVITIES

Town Planning Appeal Board Member since 2002 Vice Chairman since 2006

Financial Services and The Treasury Bureau

Member of Investigation Panel A of the Hong Kong Institute of Certified Public

Accountants (HKICPA) (since 2011)

Action Committee Against Narcotics (ACAN)

  Member since 2009

ACTIVITIES RELATING TO COMMUNITY SERVICE

The Society of Rehabilitation And Crime Prevention, Hong Kong Deputy Chairman

Honorary Legal Advisor To:

Hong Kong Young Women’s Christian Association

Hong Kong Chinese Women’s Club Kowloon Women Organizations

Federation Hong Kong Chinese Women's Club

College Hong Kong Federation of Women Asian Pacific Counselling

Association All-China Women’s Federation

Hong Kong Delegates Association Limited

International Dongguan Women Association

GMC Hong Kong Members Association Ltd

Tuen Mun District Women's Association Limited

What is Victim ("V") - Offender ("O") Mediation ("VOM")? Originated from indigenous people: Maori

in NZ, Am. Indians , Hawaiian, + Australia’s Aborigines+ Canada’s 1st Nation people

Restorative Justice (“RJ”) initiatives

JUSTICE (“J”)Retributive J V Restorative J　

Retributive RestorativeFocus establish blame

on guilt

on past

problem-solving

liability, obligation

on future

Norm Adversarial Dialogue

Means Punish

Deter / prevent

Restitution to restore

Reconcile

Community On sideline As facilitator

　 JUSTICE (“J”)Retributive J V Restorative J

Retributive RestorativeJustice Defined by right rules Defined as right

relationship

Involve Prosecutor Lawyer Victim + O + community

Emphasis Do the crime,

Do the time

Accountability

Healing

Closure

Cont. What is VOM?

address needs of crime V hold O accountable  generally for less serious offences

     

Cont. VOM  

3 basic requirements:-

O accepts or does not deny responsibility for the crime

Both V and O willing to participate Both V and O considers it safe to be involved in

the process

Community Mediation (CM) V Victim Offender Mediation (VOM)

CM VOM

Parties Disputants ≠ Disputants

1 ＝ Victim

1 ＝ Offender

Focus Achieve settlement Dialogue

(CM) = (VOM)

Voluntary participationExtensive preparatory work

Highly trained mediator Confidential (to extent allowed)

VOM Process

Mediator meets V and O privately  Help them to prepare for the joint meeting Ensure V not re-victimized  O acknowledges responsibility and sincere in wanting to meet V

Cont. VOM Process

Most effective if: (Direct) V and O meet face-to-face Accompanied

by friend/supporter V invited to speak first : empowerment Express feelings directly to each other Develop understanding of situation Helped by trained mediator throughout

Cont. VOM Process

Can be indirect: Mediator meets with V and O

separately Direct contact between V and O not

possible or not desired by V

Mediator's role

Assist V and O to arrive at agreement which

addresses needs of both and provides resolution to conflict

Benefits of the VOM

Humanize the criminal justice process O = individual instead of “Criminal with a

number” Face-to-face with V Difficult to rationalize crime Harm caused by crime = real

Careful preparation required

VOM not appropriate for all cases Preliminary meetings enable screening Pre-meeting essential for case development Preparation of participants to assure safety and

success Mediator to build rapport with V & O Ground rules help assure safety and respect

VOM FAILS IF:

Mediator not sufficiently trained unclear goals or policies Inappropriate referrals unhappy participants requires passion / Commitment from

parties guidelines not specific

A Story True

Teenager witnessed father’s brutal death Unhappy for 17 years while O imprisoned After VOM, at peace within At peace OR At War = A Choice

Experience in Canada

Dept. of Justice (“DOJ”)

DOJ Partners with:- Other federal government agents Provincial & territorial government

Various RJ Programs

Cont. Experience in Canada

Good RJ Program have:- Well trained facilitators Sensitive to needs of V & O Know the community in which crime took

place Understand dynamics of Crim. Justice

System

Cont. Experience in Canada

Pitfall:- Time consuming Emotionally draining

Experience in USA Victim Offender Restorative Justice Program

(“VORP”) RJ philosophy Referrals = Probation Dept

Police Dept Schools

Ack. Crime injures : V & their families O & their familiesCommunities

Cont. VORP (USA)

Benefits to V:

Opportunity find out about O help amends to confront O with human impact of offence have questions answered by O Receive appropriate restitution Opportunity to ask for apology Opportunity to be seen as a person Empowered Opportunity to feel justice Obtain closure May avoid court

Cont. VORP (USA)

Benefit to O:

May avoid prosecution in appropriate case Realize personal harm to V Opportunity to make amends to V Alternative to court system Opportunity to restore self-image Opportunity to express remorse + apology / explanation To be seen as a person

Cont. VORP (USA)

Benefit to community:

Saves court costs + time reduce recidivism Humanize crime for O Respond immediately to crime Partners with Justice System Safer environment Trained mediators = benefit neighborhood Impact of incarceration on community

Cont. VORP (USA)

Benefit for Justice System:

Meets V’s needs ↑sense of justice + satisfaction with the criminal justice system

↑ pub’s exp of justice & ↑ pub. Satisfaction with the criminal justice system

Report of VOM in Texas (pub. in 2009)(on juvenile cases)

Best Practices:1. Voluntary Participation

2. O admits guilt

3. All parties prepared before Mediation (“M”)

4. Neutral & trained Mediator employed

Report of VOM in Texas (pub. In 2009)

Recommendation for VOM programs :-

1. All programs should utilize trained impartial mediators 2. Mediators trained with recognized M training standard

to ensure consistent guidelines 3. Mediators to have thorough understanding of juvenile

justice system & rights of all parties involved in M4. Voluntary participation of juveniles & V 5. Available to O both prior to disposition & while under

supervision

FINLAND’s Experience

Next International Conference of European Forum (June 2012) in Finland

Petition "Sign up for RJ" 2081 signatures →VP of European Commission

Mediation in Finland Regulated by Act on Conciliation in Criminal and Certain Civil Cases (“The Act”), since June '06

Supervision, mgt + monitoring of M services by Ministry of Social Affairs and Health.

Cont. FINLAND’s Experience

Regional state admin. agency obliged to arrange M services + ensure available

M off. receive cases + cooperate w/ var. auth. throughout M process

Mediator may deal with crimes assessed as eligible for M. Before undertaking M, the M off. must det. if crim. case

suitable for M Cases not dealt by M incl: serious offences, complex or

hard-to-solve gang-related cases, drug offences and professional crime.

Cont. FINLAND’s ExperienceCase Referring: 78% crim. cases by police 18% by public prosecutors 0.2% by parentsCriminal cases referred to M in '09 54% = offences under pub. prosecution 46% = complainant offences Total: 11880 crim. + civil cases Mediated cases: Involved: 22264 people 11604 criminal 13030 suspected

offenders 276 civil 9234 complainants

Cont. FINLAND’s Experience

Domestic Violence (“DV”) cases 9% of all cases referred to M 85% : assault 80% referred by police 20% by public prosecutors By the Act: only police + pub. prosecutor authorized to

refer such cases to M. DV mediation is a clearly defined process voluntary mediators have taken extensive training course

Cont. FINLAND’s Experience

With M on DV, head of M office makes separate assessment on suitability for M.

Unsuitable if :

one party pressured the other dismissed or denied offence.

Separate meetings must be arranged for V and suspected O

Discontinue M if unsuitable as above

Hong Kong's special scheme

Police Superintendent Discretion Scheme Juvenile offender <18 committed an offence sufficient evidence to charge him/her with the offence police may take him/her to Juvenile CourtOR Police Officer of Superintendent rank or above exercise discretion to issue a caution to juvenile O instead of taking him/her to court O must be under Police’s supervision for 2 years or

until reaches 18, whichever is shorter

Cont. Hong Kong's special scheme

Police Superintendent Discretion SchemeFactors:1. Evidence available sufficient to support prosecution 2. O voluntary & unequivocally admits offence 3. O & his/her parents/guardians agree to the cautioning 4. Nature, seriousness & prevalence of offence 5. O’s previous criminal record 6. Attitude of O’s parents/guardians 7. Attitude of complainant

Against VOM in Civil Justice System will say

VOM = $ buys freedom! Truly voluntary participation? Cultural difference, won’t work here! V may not want to confront O, non starter! Who/how to administer the programs? How much funding?

Cont. Against VOM in Civil Justice System will say

VOM is not suitable for all case Limited cases, benefit small sector only. Tempering with witness? Not enough data to prove it works!

CONCLUSION:

How to join hands to promote VOM? Start with helping youths?

Thank You

Sylvia Siu : 852+6199 5321Email : sylviasiu@sfks.com.hk