v.o.r.p. victim-offender reconciliation program for rutherford county, tennesse
TRANSCRIPT
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
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
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
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
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
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.)
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
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
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 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.