An Examination of Victim-Offender Mediation in the Criminal Justice System

Introduction:

As classic court processes develop into unpopular, there has been recourse to adaptable modes of adjudication via alternative dispute resolution. In the prison justice context, alternate dispute resolution mechanisms encompass a number of practices that are not available in the mainstream felony justice procedure. These methods contain sufferer-offender mediation, family members group conferencing, victim-offender panels, victim support systems, local community criminal offense avoidance plans, sentencing circles, ex-offender support, and neighborhood support. The use of the aforementioned procedures in the legal justice method is connected to the restorative justice movement, which seeks to change the emphasis from the violation of the state and the have to have for punishment, towards reparation to the victim. The most widespread system below the restorative justice movement which this write-up will look at is target-offender mediation.

Victim-Offender Mediation (VOM) is a process that supplies an prospect for the sufferer and offender to have encounter-to-encounter conversations in a structured setting with the aid of a mediator, to make things suitable as considerably as possible, and to choose how to treat every single other in the long term. The aim of sufferer-offender mediation is on dialogue, forgiveness, accountability, and reconciliation. The observe originated from Canada as an experiment in Kitchener, Ontario, in the early 1970s, when a young officer confident a judge that two youths convicted of vandalism ought to meet up with with the victims of their crimes. After the conferences, the judge purchased the youths to pay out restitution to individuals victims as a affliction of probation. This experiment later advanced into an structured target-offender reconciliation program.[1]

Legal bases for VOM in Ghana:

In a lot of jurisdictions across the environment, particularly in Latin The usa, the use of victim-offender mediation is dependent on precise enabling legislation. In Ghana, there are two key laws that type the lawful bases of VOM the Courts Act, 2010 (ACT 459), and the Children’s Act, 1998 (ACT 560).[2] [kindly check this footnote].

• Segment 73 of the Courts Act, 1993 supplies:

Any court, with felony jurisdiction, could market reconciliation, stimulate and facilitate a settlement in an amicable way of any offense not amounting to felony and not aggravated in diploma, on payment scenarios of compensation or on other terms accepted by the court prior to which the case is tried using, and may throughout the pendency of the negotiations for a settlement remain the proceeding for a sensible time and in the occasion of a settlement being effected shall dismiss the circumstance and discharge the accused individual [emphasis mine]

From the above, the regulation encourages courts with prison jurisdiction to encourage reconciliation in between the sufferer and offender and aid a settlement. The settlement could be by payment or by any implies approved by the court. The language used in the higher than provision reveals an intention by the lawmaker to prescribe a sufferer-offender mediation process. The courtroom could choose to put a hold on the proceedings right up until settlement. If they settle, the court docket should dismiss the case and discharge the offender. It is deserving to notice that the provision only covers felonies and critical offenses that are aggravated in diploma. All forms of felonies and critical offenses are hence not within just the scope of offenses amenable to VOM- this is the standard placement in lots of countries.[3] The offence prescription is essential mainly because creating it feasible for particular major crimes (like rape, murder, and theft) to be dealt with by mediation could instill panic of re-victimization, and this can direct to self-support techniques that can manifest in quick justice to offenders. The shortcoming of the aboveprovision is that it does not empower the victim or offender to utilize for the issue to be referred to mediation.

(ii) The Children’s Act, 1998 (ACT 560) also expressly recognizes VOM in the juvenile prison justice method. Part 32 (1) and (6) provides:

A kid panel shall guide in target-offender mediation in minimal felony matters involving a little one in which the situations of the offense are not aggravated.

A child panel may possibly, in the course of mediation, suggest an apology or restitution to the offended particular person.

The regulation presents for the composition of a child panel to offer with non-significant offenses fully commited by juveniles by using VOM. All through the mediation, the panel can propose that the youngster renders an apology or restitution to the offended man or woman.

Fundamental explanations for its use:

Employing VOM is important to be certain that victims are not disenfranchised from participation in the prison justice technique. The regular criminal justice system does not recognize crime as a sort of social conflict and focuses on the punishment of the offender. Usually, the victim is wholly detached from the course of action unless expected to identify the offender and testify in courtroom. Neither the household of the victim nor the neighborhood will get any immediate involvement in the process. The evident neglect of victims is mirrored in the silence on the appropriate of victims in the 1992 Structure. The Constitution, which has stipulated honest demo procedures comprehensively, is committed to respecting the rights of the accusedperson. There are no specific provisions for victims as they are considered the invisible parties in the overall method.

The late A.N.E Amissah also captures the invisibility of victims in this way:

‘’The common observe of working with felony offenses was succinctly mentioned as “a criminal offense is an offense not only against the unlucky victim but also versus the culture and in the equipment of justice designed to determine and to punish the culprit the offense towards the modern society facet is intensely emphasized at times at the expenditure of the sufferer. As a general rule, prison prosecutions are carried out by culture, employing its corporate name: The Republic. …..the personal human being, who is the sufferer of the criminal offense fully commited, is under sizeable disability in the manage of the scenario arising out of his misfortune. The law does not understand him as a celebration to the scenario. He, as a complainant, may possibly be a witness for the prosecution. In that event, his situation is typically no unique from that of any other witness.”[4] VOM, thus, serves as the bridge to make certain that victims are involved in the criminal justice course of action.” 

A single of the principal good reasons for the use of VOM is that the victim obtains payment for losses incurred from the fee of the criminal offense. Victims are a lot more possible to receive restitution by means of VOM than as a result of the courtroom. Restitution could be in the kind of economic redress for the target, repair or return of house, and the provision of some immediate providers to the target. By giving restitution, VOM does more than restore the victim to the status quo ante rather, it aims at restoration to an excellent situation. The restitution is not only compensatory but may embody an apology and atonement by the offender.

The significant psychological advantage constitutes a issue for the recourse to VOM. The victim could express his or her sights immediately to the offender, and the target gets responses to some lingering queries about the offense. It could then be argued that when the victim confronts the offender, the offender gains perception into the affect of the crime. There are certain components that the courtroom may well deem irrelevant which may possibly be contextually related to the sufferer and offenders in themediation. The software of this theory to VOM reflects the reality that a victim is a authentic man or woman and not an invisible entity.

VOM is an less complicated mechanism to use in conditions that are so minor that there is no want for a complete trial in court. These types of scenarios are less difficult to take care of, and the victims feel more inspired to just take portion in disposing of this kind of issues quickly, endorsing efficient scenario management. This relieves the courts of their ever-increasing workload.

VOM relieves stress that may well otherwise have been developed by the formal court docket process and provides a feeling of electric power to the functions. The capability to navigate a tense prison system empowers each sides.

Shortcomings of the VOM system:

Critics of VOM argue that the procedure improperly presumes that a victim’s unfavorable inner thoughts can be expressed and dealt with in a few of several hours spent mediating with the offender.[5] The retort is that even however a victim’s psychological needs might ultimately ideal be resolved by a mental health expert, prison mediation delivers the victim a exclusive prospect they do not have access to in the classic felony proceedings, i.e. to satisfy and confront their offender.

To many others, the see that victims want elevated participation in the legal justice method may well be a fallacy just after all. Some victims sense that VOM procedures are not sufficiently punishment orientated. They are so unwilling to choose component or might be disruptive if they participate. These victims would choose the offender faces the whole rigor of the regulation.

There have been fears that the course of action may perhaps improve the worry and tension suffered by victims and therefore constitute secondary victimization.[6] Often, the conduct of some offenders may perhaps render the entire approach nugatory. In the course of the mediation, the offender may possibly be unwilling to display regret, apologize, or admit obligation for their actions. Some offenders could phony remorse for the duration of the approach, hoping to get lenient sentences. This perspective helps make a mockery of the whole process, and the obvious reconciliation is then no reconciliation at all. Some offenders may even rationalize their habits by putting up a moral justification for their steps. Some may perhaps even come to be very defensive and blame the victims. For instance, a burglar could blame the sufferer for having a weak security process in their developing.

Summary:

VOM has heralded a new dawn for victims and offenders to have equivalent accessibility to the justice equipment. Indeed, this type of restorative justice is both ahead-looking and backward-looking as it deals with the results of a criminal offense and also how to protect against them in the long term.[7]

For VOM to prosper, there will have to be actions to that effect. It is imperative for vital gamers in the prison justice technique to be skilled and knowledgeable on the rules of VOM and how best they can put into practice this mediation application. Mediators can also receive additional training to undertake this exclusive mode of mediation. There must be a common explicit recognition of VOM by means of legislation or by the amendment of the Option Dispute Resolution Act to complement the provision in the Courts Act. This recognition need to pressure voluntariness and the will need for consent of the sufferer prior to the commencement of mediation. There must also be a prescription for the sufferer or the prosecution to apply for a legal make a difference to be referred for mediation.

VOM achieves accountability and fairness in the felony justice technique involving offenders, victims, people, and societies at massive. Stakeholders have to as a result have a renewed mindset to criminals and revise their conceptions of what constitutes punishment and sentencing, as very well as the have to have for accountability to the victims.

 

Image by Marcel Ardivan on Unsplash

[1] Kitchener Experiment, Peachey, 1989 at 14-16

[2] Some argue that section 64 of the Choice Dispute Resolution Act, 2010 (Act 798) which prescribes being proceedings for mediation types a lawful basis for VOM. The creator proffers that the course of action explained in that part applies to only civil proceedings rather than felony proceedings.

[3] Albert Fiadjoe, Alternative Dispute Resolution: A Building Entire world Point of view, p. 69

[4] A.N.E. Amissah Functional Difficulty of Non-public Prosecutions [1970] VOL. II NO. 2 RGL 115—120

[5] Larysa Simms, Felony Mediation is the BASF, of the Legal Justice Program: Not Replacing Conventional Criminal Adjudication, Just earning it Better (2007)

[6] Côté & Laroche, 2002 Wemmers & Canuto, 2002

[7] Skelton et al. (2008) 21(3) Acta Criminologica 47