Participation in Victim— Offender Mediation

• Author: Patrick M. Gerkin
• DOI: 10.1177/0734016808325058
• Published date: 01 June 2009
• Date: 01 June 2009
• Subject Matter: Articles

Criminal Justice Review
Volume 34 Number 2
June 2009 226-247
© 2009 Georgia State University
Participation in Victim–
Research Foundation, Inc.
10.1177/0734016808325058
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Offender Mediation
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Lessons Learned From Observations
Patrick M. Gerkin
Grand Valley State University
Victim–offender mediation has grown to establish itself among criminal justice practices as an
alternative to traditionally retributive notions of justice. As the number of programs claiming
to be restorative in nature continues to grow, victim–offender mediation programs are emerg-
ing as one of the state’s preferred delivery methods for restorative justice. Restorative prac-
tices, including victim–offender mediation, are inclusive practices. Participation is not only
encouraged, it is a necessary element for victim–offender mediation to achieve restorative
outcomes. Through the use of observations and content analysis of agreements produced
in victim–offender mediation, this research uncovers several impediments to individual
participation, including problems in the implementation of restorative practices; participant
domination, including victim lecturing; and a lack of awareness among the participants about
the restorative vision of justice.
Keywords:
restorative justice; participation; victim–offender mediation; observations
Restorative justice, in its many forms, has emerged as one of several competing philoso-
phies to the approach of crime and justice in numerous countries throughout the world
(Van Ness & Strong, 2006). An often cited definition provided by Tony Marshall (1996)
states that restorative justice is “a process whereby all the parties with a stake in a particu-
lar offence come together to resolve collectively how to deal with the aftermath of the
offence and its implications for the future” (p. 37). There are many programs that claim to
be part of the restorative justice movement, and as many if not more names to denote these
different varieties. Restorative justice is used as an umbrella term to describe any number
of programs that view crime and the response to crime through a restorative lens. Victim
offender mediation programs (VOMP), victim offender reconciliation programs (VORP),
family group conferencing, community reparative boards, sentencing circles, and sentenc-
ing panels are just a few of the names now used to denote restorative programs. In addition
to these, there are a number of multiform programs that might include some combination
of aspects from the programs previously listed. Declan Roche (2003) states, “Although this
range illustrates confusion about the meaning and application of restorative justice, there
remain four fundamental ideals: personalism, reparation, reintegration, and participation”
(p. 60). According to Roche, the programs that attempt to integrate all four basic ideals rep-
resent the driving force of restorative justice.
Author’s Note: Please address correspondence to Patrick M. Gerkin, Grand Valley State University, 401 W.
Fulton Street, Grand Rapids, MI 49504-6431; e-mail: gerkinp@gvsu.edu.
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Gerkin / Victim–Offender Mediation
227
One form of restorative justice that has seen continued growth is victim–offender medi-
ation. In the United States, cases may be referred to victim–offender mediation programs
from a variety of sources, including judges, law enforcement officers, probation officers,
victim advocates, prosecutors, and defense attorneys.
The goals of victim–offender mediation as reported by Bazemore and Umbreit (2001)
include
Supporting the healing process of victims by providing a safe, controlled setting for them
to meet and speak with offenders on a strictly voluntary basis.
Allowing offenders to learn about the impact of their crimes on the victims and take direct
responsibility for their behavior.
Providing an opportunity for the victim and offender to develop a mutually acceptable plan
that addresses the harm caused by the crime. (pp. 2-3)
This list of goals put forth by Bazemore and Umbreit is far from exhaustive. The out-
comes and processes compiled in this list do not speak to the restorative nature of the
intended mediation outcomes such as meeting needs, empowering victims and offenders,
recognition, and reintegration. These are the outcomes that make justice restorative.
The goal of this research is to extend the knowledge about victim–offender mediation as
a restorative process. The findings are derived from the amalgamation of data collected
through observations of the victim–offender mediation process and analysis of agreements
produced within.
Dennis Sullivan and Larry Tifft (2001) liken restorative justice to needs-based justice. In
needs-based justice, “we seek to create and apply restorative values and meet needs in a
harm situation” (p. 101). Meeting the needs of the parties involved is how the situation is
made right. This includes meeting the needs of not only the victims but also the offenders
and the community. Thus, restorative justice represents a shift from a rights-based or
deserts-based justice system to a needs-based justice system. Sullivan and Tifft state:
When we examine what is required to embrace a restorative approach to justice, we see a polit-
ical economy in which the needs of all are met, but met as they are defined by each person.
Such an approach towards justice puts a great premium on the participation of everyone, and
on the expression of the voice of each. In other words, the well-being of everyone involved in
a given social situation is taken into account: that is, everyone involved is listened to, inter-
acted with, or responded to on the basis of her or his present needs. (pp. 112-113)
Justice begins with identifying the needs of the persons involved. This concept can be dif-
ficult to grasp because it lies outside of the dominant retributive paradigm. In a needs-based
system the thoughts and feelings of all people are vital. The psychological and emotional
needs of victims and offenders are going to vary from person to person, which is part of the
reason why participation in the restorative process is so significant. The only way to
uncover victim and offender needs is to provide them with opportunities to communicate
exactly what those needs are.
Another goal of restorative justice is to empower the participants. This is accomplished
by involving the participants in the process of achieving justice. Harris (2003) states:

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Criminal Justice Review
Everyone needs to feel that they are in control of their own lives. Only then can they give to
others, participate in intimate relationships, make contributions to community life, engage in
cooperative activities, and exercise leadership. These capacities are to be valued and nurtured
in everyone. Learning to exercise self-control is critical for all of us and we learn to accept
responsibility for ourselves and our actions only when we have opportunities for choice and
occasions to find and use our power. (p. 134)
Empowerment is achieved in part through active participation in the creation of the out-
come produced by the restorative justice response to harm.
The literature contained herein demonstrates why participation is so vital to restorative
practices and needs to be examined as a topic of research in the evaluation of restorative
justice. The four fundamental ideals of restorative practices—personalism, reparation, rein-
tegration, and participation—identified by Roche (2003) implicitly suggest that the indi-
viduals who are all too often only subjects of the justice process need to participate in the
restorative vision of justice. Furthermore, the goals of empowerment, recognition, and
meeting needs cannot be met without the active participation of the individuals involved in
the social practice of restorative justice.
Critiques of Restorative Practices
Recently, several critiques have emerged with specific focus on the power dynamics evi-
dent in restorative practices. One such work (Pavlich, 2005) examines the designations of
victim and offender, suggesting that participants are encouraged by the mediators and in
some ways by the mediation process to play particular roles in restorative justice. Pavlich
is concerned with the ways in which one’s response to the events that bring them to medi-
ation is governed by the process.
Victims do not exist sui generis, in and of themselves; that is, they do not exist in any absolute
abstract sense, but are produced through rituals, rules and techniques of power embedded in
such social practices as restorative justice techniques. One is not, in essence, a victim; more
contentiously, one becomes a victim by participating in contexts designed to create particular
forms of the victim identity. (p. 52)
According to Pavlich, these governmentalities create roles for both victims and offenders
that dictate not only what is expected of them as participants but also what is not accept-
able. Consequently, Pavlich suggests that participants are limited in terms of the types of
participation allowed in mediation.
Arrigo, Milovanovic, and Schehr (2005) claim that master signifiers in the restorative
process, such as reconciliation, healing, restitution, community, and responsibility, force
victims to explain their experiences within this master discourse. “For victims and offend-
ers, VOM discursive practices only offer the opportunity to locate experiences of pain, hurt,
confusion, regret, retribution, and the like, within a master discourse” (p. 105). Caging the
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