Can Mediation be Integrated into the Systems of Prosecution for Young Offenders?
May 12, 2022 • Nikita Saha
AUTHOR'S PROFILE: The author, Bhakti Parekh is enthusiastic about spreading awareness through the written word. She has a love for learning different languages as language gives insight into different thought processes and cultures. She is an avid reader and one of her favorite genres is crime thrillers
To answer the question of whether mediation can be integrated into the systems of prosecution for young offenders, we first need to understand the why behind wanting to take such a step. To understand this why, first, a few key concepts need to be understood. The concepts of restorative justice, mediation, and juvenile justice need to be understood here.
THE CONCEPT OF RESTORATIVE JUSTICE
The concept of Restorative Justice is comparatively new. Restorative justice is a broad label that encompasses a plethora of different models, roughly bound together by the belief that the traditional criminal justice system ignores a key step in rebuilding a sense of justice because of its somewhat myopic focus on punishing offenders. It views crime as more than breaking the law. Restorative justice views crime as something that also causes harm to people and the community at large. Restorative justice is described in various ways and is also commonly known as ‘reparative justice’, ‘positive justice’, and ‘communitarian justice’.It is an approach to problem-solving that, in its various forms, involves the victim, the offender, their social networks, justice agencies, and the community. The programs of restorative justice are based on the fundamental principle as mentioned before, that, criminal behavior not only violates the law but also injures victims and the community. For the redressal of consequences of criminal behavior, the efforts should, where ever possible include and involve the injured parties, and the offender, and also provide support and help that is required by the victim or offender. For the restorative justice process to work, the parties involved must actively participate in the resolution of matters and this is generally done with the help of a facilitator. Restorative processes may include mediation, conciliation, conferencing, and sentencing circles. Even though punishment may be a part of restorative justice techniques, the main aim is to focus on the relationships between the affected parties and their healing through a deliberative process. Let’s look at the objectives of restorative justice:
- To restore peace and order in the community while repairing damaged relationships.
- To help and support the victims of crime and a platform for them to voice themselves and to enable them to participate and address their needs.
- To encourage offenders to take responsibility for their actions.
- To denounce crime and criminal behavior as unacceptable and reaffirm community values.
- To help prevent recidivism or the tendency of an offender to re-offend and to encourage the individuals to change and reintegrate into the community.
THE CONCEPT OF MEDIATION
Mediation is a voluntary collaborative process where individuals who have a conflict with one another identify issues, develop options, consider alternatives, and develop a consensual agreement with the help of a neutral intermediary (also known as a mediator). Thus, it can be said that mediation is a means to resolve disputes without resorting to litigation or other adversarial modes of dealing with conflict. The key features or characteristics of mediation are:
- It is a voluntary process.
- It is a process that is collaborative where the two parties can work together. Since mediation cannot be imposed, the two disputing parties may have a higher degree of motivation to solve issues.
- It is a confidential process. Materials disclosed during mediation cannot be subsequently disclosed in a court.
- It is a process that is satisfying and self-responsible. This means that the agreement reached between conflicting parties in mediation is usually more satisfying and the parties themselves were responsible for resolving their issues.
- It is an impartial, neutral, and balanced approach where the mediator’s role is to ensure that the parties reach an agreement in a voluntary and informed manner.
- It is quick and costs less. The process of mediation is quicker than litigation and the costs involved in resolving the dispute are far less than those involved in litigation.
THE CONCEPT OF JUVENILE JUSTICE
Juvenile Justice is the area of criminal law that applies to persons who are not old enough to be held responsible for criminal acts committed by them. While the system is similar to that of the adult criminal justice system, the juvenile justice system appreciates that youth are fundamentally different from adults both in terms of the level of responsibility and potential for rehabilitation. The primary goals of any juvenile justice system are skill development, habilitation, rehabilitation as well as successful reintegration of youth into the community. This can be aptly summed by citing Article 5 of the Beijing rules – “The juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offense.” Usually, people below the age of 18 years are considered to be juveniles. To some extent, the juvenile justice system operates on the principle of ‘parens patriae’ which means that the state could act as a parent of the nation or the state could act as a parent for certain classes of people in need of protection.
MEDIATION AND CRIMINAL JUSTICE: HOW AND WHY
Mediation is one of the few techniques or methods that incorporates the ideals and principles of restorative justice. It should then be noted that one of the major methods or techniques of restorative justice in the criminal justice arena is that of victim-offender mediation. In this type of mediation, the victim gets a chance to voluntarily face the offender in a secure and safe space. A trained mediator is also present to facilitate the whole process. The primary actors needed for the victim-offender mediation as the name suggests are the victims and offenders. However, in certain cases, these two parties could be joined by family members and other individuals whom either party wishes to include. In this process, a chance is given to the offender to understand the effects and consequences of his crime, and further, a chance is given to make amends with the victim. However, it should be noted that victim-offender mediation is slightly different from other kinds and forms of mediation. In victim-offender mediation, the parties involved are not disputants and generally, one of the parties has committed an offense and the other party has been victimized. The guilt or innocence of the offender is not to be meditated on. Other forms of mediation are settlement driven whereas victim-offender mediation is ‘dialogue driven’. The emphasis is laid on victim empowerment, offender accountability, and the restoration of losses.
As to why victim-offender mediation is said to be more effective, there are a few strong reasons. This alternate method which uses the principles of restorative justice is considered to be an effective alternative to incarceration or prison. Incarceration of juveniles has the effect of pushing them down the road of crime. Prisons have a high running cost too. Another reason is that the system of incarceration focuses on the offenders and not on the victims. Let’s now, have a look at the reasons why victim-offender mediation, a restorative justice technique works better or is a more effective alternative to the traditional form of retributive justice.
- Restored offenders are less likely to offend a second time: Studies have shown that detention or incarceration is not effective enough to deter youth from reoffending. There is evidence that suggests and points out that restorative justice techniques tend to reduce the instances of reoffending. These techniques have a higher rate of success in reducing recidivism than court processes. Further, “studies have shown that low-level juvenile offenders are less likely to re-offend if, rather than being incarcerated, they are allowed to remain within their communities and are given access to community-based programs.”
- Victim-Offender mediation is more cost-efficient in nature: Detention centres and jails made especially for juveniles or youth tend to have a high working cost. Community programs along with victim-offender mediation have lower costs.
- Juveniles or youth are more likely to be restored through restorative justice techniques: Juveniles are majorly different from adults. There is a reason that juveniles are not given the responsibilities and privileges that are conferred to adults for a reason. Their irresponsible conduct then should also be treated differently and should not be considered as morally reprehensible as that of adults. Since juveniles have different developmental needs and medical science shows that the brain of an adolescent is not fully developed, particularly the area of the prefrontal cortex which is critical to impulse control; there is a better chance to restore and change the ways of juveniles.
- Victims get to voice their opinions and needs: In the traditional criminal justice system, the focus is on the offender and punishing the said offender. In victim-offender mediation as well as other restorative techniques, the victim gets the opportunity to voice their needs and feel heard. It can be said that in the traditional justice system, the victim is completely forgotten in the aftermath of the crime. A study that tried to gauge the effectiveness of victim-offender mediation has shown that victims were more likely to benefit from the mediation process that from a normal court process.
- The community is also benefitted: The Community on a whole is benefitted from victim-offender mediation and other similar restorative techniques and programs because these lead to lower rates of recidivism and the offenders feel morally obligated to restitute the victims. The offenders are more likely to follow through on the restitution agreements as well as any community service they agree to.
It should, however, be noted that victim-offender mediation has its shortcomings or weaknesses despite it being a highly effective alternative to the court processes.
- There is a lack of adequate guidelines to ensure an effective and ethical process. Many times, mediators lack formal training and this could lead to inappropriate referrals to the programs as well as unhappy participants.
- Participation needs to be voluntary and not forced onto the parties. Forcing parties into victim-offender mediation may lead to further victimization of the victims and also not help in reforming or restoring the offenders. A feeling of loss of control will prevail which in turn would lead to ineffective dialogue.
- Another issue is the protection provided to the victims while facing their offender. Sometimes, the protection and safety afforded to the victims are not enough and it could lead to re-victimization when the victims confront their offenders.
DIFFERENT SYSTEMS OF PROSECUTION WHERE MEDIATION HAS BEEN INCORPORATED IN JUVENILE JUSTICE SYSTEMS
Victim-Offender Mediation has been around for almost 5 decades now. The first Victim-Offender Reconciliation Project was initiated in Kitchener, Ontario, Canada in 1974. The first mediation involved two boys who had destroyed the property of victims during a drunken rampage. The boys did not have any prior offenses and keeping this in mind their probation officer recommended that instead of punishment, the juveniles face their victims. The judge agreed to this proposal. The boys went to the homes of their victims and further confessed to their criminal activity of destroying property. The boys then worked out restitution agreements with their victims and within a short span of three months paid back all the losses. The offenders, the boys, experienced meaningful accountability that would not have been possible if they were punished and incarcerated by the court. This episode then led to the creation and establishment of the first North American victim-offender mediation or reconciliation program. Vitim-offender mediation was then successfully replicated in the United States of America in 1978. It continued to grow and received recognition from the American Bar Association in 1994 when the Association endorsed the alternative practice of victim-offender mediation. In Sweden, the practise of victim-offender mediation grew spontaneously without intervention or interference from the State. The first mediation projects were initiated at the end of the 1980s and their focus was on children and young people aged between 8 to 18 years who had committed a crime. By the beginning of the 1990s, a handful of mediation projects had also begun in several local municipalities in Sweden. The Mediation Act came into force in 2002 and is the first regulation in the country of Sweden that deals with victim-offender mediation. Further, it should be noted that across the world there have been countries that had strived to develop victim-offender mediation programs. In New Zealand, for example, victim-offender mediation programs are available in all jurisdictions.
As can be seen from the table above, there are quite a few countries that have developed victim-offender mediation programs.
SCENARIO IN INDIA
In India, the scenario is slightly different. India being an adversarial justice system, expressly discourages the practice of mediation for criminal offenses. The justification given for this is that crime is a wrong against society rather than an individual. The system does not thus, stress the concepts of forgiveness or reconciliation. Over the years, the law has tried and attempted to remedy the situation to some extent by providing for the compounding of offenses for certain non-serious crimes. This compounding of offenses refers to the forbearance from prosecution due to an amicable settlement that has been reached between the two parties where the victim condones the behavior of the offender who shows his repentance through certain actions. The Indian scenario and jurisprudence are however slowly changing. A victim-centric approach is being adopted by the court in matrimonial disputes where criminal elements are present. A case in point is that of B.S. Joshi v. the State of Haryana, where the court quashed the FIR because an amicable divorce settlement had been reached and opined that the mutual willingness of the parties to settle their differences amicably rendered the subsequent court proceeding contrary to the objective of section 489A of IPC. Another case is that of Ashok Sadarangani v. Union of India where the court opined that in the light of a compromise having been arrived at between the parties, the subsistence of criminal court proceedings is an exercise in futility.
Thus, it can be noticed that slowly and steadily India is also moving towards the acceptance of the concepts of restorative justice.
ANSWERING THE QUESTION
To conclude, It would be pertinent to state here the proverb, ‘Where there is a will, there is a way.’ It is possible to incorporate mediation in criminal cases, especially those which involve juveniles. This is because the juvenile justice systems across the world to a great extent do appreciate the differences between adults and juveniles. Further, as research has shown, it is easier to reform and restore juveniles when they are in their communities. As can be seen from the various countries that have already made successful efforts in implementing and developing victim-offender mediation programs, it is clear that it is possible to incorporate these alternative and restorative justice techniques into traditional criminal justice systems, especially in the cases of juvenile justice systems.
Judy Tsui, Breaking Free of the Prison Paradigm: Integrating Restorative Justice Techniques into Chicago’s Juvenile Justice System, 104 The Journal of Criminal Law and Criminology (2014).
Article 5 of United Nations Standard Minimum Rules for the Administration of Juvenile Justice.
 U.S. Department of Justice, Guidelines for Victim-Sensitive Victim-Offender Mediation: Restorative Justice Through Dialogue (April 2000).
Elizabeth E. Clark, Realigning Illinois Fiscal Priorities in Juvenile Justice, 98 ILL. B.J., (2010).
Mark Umbreit, Restorative Justice Through Victim-Offender Mediation: A Multi-site Assessment, 1 W. Criminology Rev. 1 (1998).
Ilyssa Wellikoff, Victim-Offender Mediation, and Violent Crimes: On the Way to Justice, 5 Journal of Conflict Resolution, https://cardozojcr.com/issues/volume-5-1/note-1/ (last visited Apr 19, 2021).
 Frida Eriksson, Victim-offender mediation in Sweden and South Africa, https://core.ac.uk/reader/16324440.
B.S. Joshi v. the State of Haryana, (2003) 4 SCC 675.
Ashok Sadarangani v. Union of India, (2013) 1 SCC (Civ) 298.