The Effectiveness of Mediation with juvenile offenders “The courts of this country should not be the place where the resolution of disputes begins. They should be the places where the disputes end – after alternative methods of resolving disputes have been considered and tried . . . .” juvenile crime and delinquency are increasingly growing social problems in the United States. The current juvenile crime system which involves juvenile court, juvenile hall and programs designed to rehabilitate have not proven highly effective in most cases. As court dockets grow and juveniles tend to reoffend after getting out of the system, alternative dispute resolution programs have cropped up in many states. Two of these programs, family mediation and victim/offender mediation, present interesting and effective alternatives to the court system. After examining these types of mediation, in addition to problems such as contract rules and confidentiality which present unique problems to juveniles mediation, it should be clear that while both parent/teen and victim offender mediation are successful, parent-teen mediation has the best long term effects and better avoids confidentiality and contract problems.
The Term Paper on Juvenile Drug Courts Court Offenders Program
Drug Courts came about as a result of a backlogged court system and a steady, rapidly increasing prison population. Drug courts are a form of diversion that helps the offender through rehabilitation and the community through an increased sense of protection, which serves the best interest of everyone. Drug Courts are community based intermediate sanctions that incorporate treatment principles into ...
Mediators are neutral third parties who engage the disputing parties in dialogue for the purpose of coming up with a solution agreeable to both parties. The process is voluntary for both of the disputants, who must agree ahead of time to participate in the process in order for it to work. The process is also confidential, with the parties and mediator signing a confidentiality agreement ahead of time to ensure the process is not used as discovery. The standard mediation is a five-step process. The first step is the introduction, where the mediator explains the process, the rules and confidentiality. The second step involves each party having uninterrupted time to explain the dispute from their viewpoint. During the third stage the mediator identifies the issues and interests of each party based on what they said during their uninterrupted time. During the fourth stage the parties each suggest options to solve their problem. In the fifth stage the mediator draws up a binding written agreement based on the options the parties choose, which the parties then sign. 41-Nov Advocate (Idaho) 10, 13. An essential difference between mediation and court is that the finding of facts is not essential in mediation, and in some cases does not have any importance in the ultimate resolution of the dispute.
20 Seton Hall Legis. J. 433, 453. The objective of mediation is a mutually acceptable agreement and not a determination of right or wrong. Id. Thus, mediation is more therapeutic than judgmental, creating the opportunity for more long-term results and satisfaction by the participants. Id. While mediation has been very successful with adults, many law enforcement officials didn’t think it would work with juveniles because they had to voluntarily submit to it. However, the success of the juvenile programs seems to be because of the voluntariness. Where many juveniles have failed when they were put through counseling and punishment, they tend to succeed at mediation because they feel empowered by choosing to participate. In addition to being voluntary, the neutrality of the mediator is appealing to teens. This neutrality becomes especially important in teen/parent mediations where there is normally a power struggle in the home. The mediation process gives the teen equal time to speak without interruption, the opportunity to express their disappointments and have their wishes be heard. 41-Nov Advocate (Idaho) 10, 13. The empowerment they receive through the process can often be an important catalyst in motivating them toward change. Id.
The Essay on Mediation Interview
One conducted went to a social service agency called Center for Human Development and conducted an interview with Michael Jones Community Mediator. One’s interview was in regard to Mr. Jones role within the organization. Mr. Jones mediates for one’s client’s different kind of disputes. One’s interview questions consisted of the following the population Mr. Jones aids, how Ms. Jones assist, the ...
In many states legislation has been created which allows funding for alternative dispute resolution programs and gives law enforcement agencies the authority to use the programs. In California, most programs developed under the broad authority granted in the California Welfare and Institutions Code 654, which gives law enforcement personnel the authority to use the programs (look up specifics).
Additional legislation such as the California Dispute Resolution Programs Act of 1991 provide funding for these programs to ensure their survival. Parent/teen mediation programs have emerged around the United States in an attempt to deter status offenders and give families communication tools to solve their problems. Status offenders such as runaways, truants and curfew violators are often thought of as troubled youth. 41-Nov Advocate (Idaho) 10 (1998).
Statistics demonstrate that a significant number of them will later engage in more serious criminal behavior. Id. Because of the already full court dockets, many status offenders are not brought before court; thus they are not deterred from further improper behavior. Id. There are also conflicting viewpoints of how to deter status offenders from more serious crimes. Some feel that the forcefulness of a court proceeding is the only deterrent. Id. Others believe that the court system actually hardens the status offender’s attitudes, leading to further criminal behavior. Id. Mediation has emerged as a way of keeping the teen out of the system, to try to prevent them from getting the stigma of a court conviction. Mediation is believed to be especially well suited in parent-child conflicts. The focus on achieving consensus in a non-hostile atmosphere is likely to generate long-term solutions because they satisfy both the parents and child’s needs. 41-NOV Advocate (Idaho) 11. Where litigation drives parties further apart, mediation can bring them together. Mediation avoids the exacerbation of conflict because the atmosphere is exploratory rather than accusatory. Id. The sessions are not open to the public, and everything that is said is off the record.
The Essay on Advocacy and Mediation
Mediation can be defined as the act of intervening for the purpose of bringing about resolution to a conflict (Barsky, 2007). In the mediation process mediators are considered to be a non-bias, neutral third party who directs the mediation process in effort to guide the conflicting party’s to a viable conflict resolution. Having no displayed or exhibited pre-judgment of either conflicting parties, ...
In San Diego, California the principal organization running a parent/teen mediation program is the San Diego Mediation Center. The Center decided to enter into parent- teen mediations in 1996, after having mediated adult disputes for years. The program had 104 cases during its first three years and experiences 30% growth each year. The organizations mediators are volunteers, and they must undergo 40 hours of training in mediation, in addition to special training in problems relating to teenagers. Normally a mediator must be very experienced to enter juvenile mediation because of the sensitivity of the issues involved. The fee for a mediation is $150, adjustable on a sliding scale for those unable to pay. While there is no formal referral process for the Center, it gets mediations through probation officers, school counselors, police, teachers and interested parents and teens who contact the Center. The program also advertises by touring schools to talk to teens. The program has a 90% success rate of getting a written agreement between the parent and child. This success rate is higher than any of the Mediation Center’s other programs. Betty McManus, one of the Center’s mediators, credits the success of the program to the fact that they don’t force the teen to do anything they don’t want to do. The teens like the fact that they come away feeling like they did not surrender anything.
The types of problems the Mediation Center deals with are curfews, respect, gang involvement, grades, truancy, runaways, household responsibilities and other behavioral or communication issues. The main goal of the program is to balance the power in the parent-teen relationship and create an atmosphere where both parties feel comfortable tackling topics. The mediators push gently through highly emotional battles to get to the heart of the conflict. The mediator then defines the problems and has both the parent and teen come up with solutions, which are written on a dry erase board. All the solutions are then evaluated and the ones the parties settle on are drawn up in a contract that is detailed, realistic and time specific. For example, if a teen says he will get better grades, the mediator asks him how he will do it, forcing the teen to get very specific about when and how he will start. The cases that end without agreement are normally ones that are highly volatile, where one of the parties is not willing to listen to the other. Victim offender mediation was first created for adult mediations as an answer to concerns that victims are often completely excluded from the justice system and are often not compensated for the harm that occurred to them. The theory used in victim offender mediation is known as “restorative justice”, where the person violated is considered the primary victim and the state is the secondary victim. Normal criminal proceedings are operated in the opposite fashion, with the state being the primary victim. The goal with victim-offender mediation is to have both victims and offenders assume an active role in restoring the material and psychological losses that accrued to the individual victims and the community. The most popular and widespread of these programs is the Victim/Offender Reconciliation Program (VORP).
The Essay on To what extent does the law balance out the rights of the victims, offenders and society in the criminal investigation process?
The role of the criminal investigation process is to balance the rights of the victims and offenders in society. All individuals’ wether victim, offender or member of society have basic rights to which the law attempts to adhere to. While all are individual, the rights will differ for the purpose of maintaining a balance in society. Though upholding the rights of the people is essential in order ...
VORPs are organized on the county level, with one program serving one urban or several rural counties. One of the largest VORPs dealing with juvenile delinquents is in Orange County, California. The program receives funding through the California Dispute Resolution Programs Act of 1991, which assesses an $8 surcharge on civil court filing fees. The money generate from the Act is distributed among various alternative dispute resolution programs in the state, with the Orange County program receiving $282,000 a year. Between 1989 and 1995, a total of 2,496 juvenile offenders were referred to the Orange County program. Referrals were made either before trial by a probation officer or as part of a condition of the juvenile’s sentence. Most of the program’s mediators are volunteers. As in family mediation, both the victim and offender have to voluntarily agree to enter the program, though in this type of mediation the offender may risk court sanctions if he refuses. A study of the referrals between 1989 and 1995 showed that victims were most likely to agree to meet their offender in minor personal crimes and serious to minor property crimes, with 79% of minor personal crime victims and 74% of all property crime victims agreeing to the meeting.
The Term Paper on Juvenile Justice Young Act Offenders
The actions of the human race can be seen, albeit sometimes after careful examination, to be influenced by certain beliefs or values. In some cases the endeavours of an individual are as a response to some event; whether this reaction is deliberated over or a 'knee- jerk' one, it can normally be associated with some past occurrence. Most Acts of government reflect the ideologies of the ruling ...
Victims were least likely to agree to meeting their offenders in cases of serious personal crimes such as murder, assault and battery, with only 58% of victims in these cases agreeing. When the victims chose not to meet their offender they most often indicated that it was because the case was not important enough to participate, that they had already worked out an arrangement with the offender or in 9% of the cases that they did not have confidence in the offenders goodwill. Offenders were least likely to agree to meet the victim in minor personal crimes, with only 69% agreeing to mediate. They were most likely to agree in property offenses, where 80% agreed to meet. In serious personal crimes they agreed to meet their victim in 77% of the cases. Offenders that did not agree to mediate either did so because they did not feel they had done anything wrong or because their parents did not want them to participate. The cases with the largest number of referrals were graffiti and tagging, where 67% of the cases referred reached mediation. The second highest category to reach mediation was serious property offenses such as theft, hit and run, burglary and arson, where 54% of the cases ended up in mediation.
The Victim/Offender mediation process works much like family mediation, with the victim and offender meeting face to face. Normally the victim speaks first to talk about the crime and how it has effected their life. Next the offender speaks to explain why they did it and give an apology if they want to. The second part of the process is where the two parties discuss restitution, which usually is community service or monetary restitution. The process is considered therapeutic to the victim because it helps them put the crime behind them and assures them that the offender will not harm them again. Often the victims take the mediation as an opportunity to express to their offender how the crime effected their life. For the juvenile offenders it is considered beneficial because they get to hear firsthand how they hurt their victim. By humanizing their crime through their victim rather than just receiving a punishment through the court it could deter them from perpetrating the same crime again. Of the cases referred to VORP between 1989 and 1995, 48% of them reached an agreement through mediation and 19% were still in the process of being mediated. Where the victim and offender met face to face there was an agreement 99% of the time.
The Term Paper on Juvenile Delinquency 5
The society of today has already faced a rainbow of emotions and has experienced everything wonderful and miraculous that a person might see in his entire lifetime. At the same time, people have already been exposed to the downside. As depressing as this may sound, crime rates have been going up and down and juveniles have been partly responsible for that. Juvenile delinquents are persons below ...
When an agreement was reached in mediation they were followed up on 96.8 percent of the time. While the percentages of compliance with the agreement for those who reach mediation are good, one of the biggest indicators of success is whether or not the juvenile goes back to crime. In the area of recidivism the statistics are not as good. When a comparison was made between juveniles who participated in VORP and those who chose not to mediate, the numbers of juvenile who committed another crime within a year was 28% in both groups, thus showing no change in the return to crime for the mediated group. Barriers to Mediation Which Apply to Juveniles The statistics of most mediation programs show a high rate of juveniles following through once the agreement is drawn up. However, basic contract law makes contracts that are normally binding voidable at the will of a minor. 27 U. Tol. L. Rev. 897, 905. This ability to void contracts could pose a problem in the ultimate success of juvenile mediations. Contract law poses some interesting questions about the contracts drawn up in juvenile mediations. The Restatement of Contracts states that “Unless a statute provides otherwise, a natural person has the capacity to incur only voidable contractual duties until the day before the person’s eighteenth birthday. Restatement (Second) of Contracts 14 (1981).
Courts often enforce an infant’s ability to void their contract with the rationale that the more experienced adult can take advantage of him. See, Kiefer v. Fred Howe Motors, Inc., 158 N.W. 2d 288 (Wis. 1968) , Halbman v. Lemke, 28 N.W. 2d 562 (Wis. 1980).
Contracts are also unenforceable where they are unconscionable. Unconscionable contracts arise in two instances. The first involves contracts in which the parties are not bargaining from equal positions, creating an agreement that is unfair to the weaker party. The second example of where unconscionable contracts can occur is where the contract contains an adhesion clause that are so one sided that they benefit one party while detrimenting another. U.C.C. 2-302 (1995).
A famous case involving unconscionable contracts is Williams v. Walker-Thomas Furniture Co., 350 F. 2d 445 (D.C. Cir. 1965), where the court outlined several factors to be considered when determining if there was meaningful choice is the contract terms. These factors include the manner in which the agreement was entered, the weaker party’s education or lack of it, and whether important terms were masked or minimized by deceptive practices. Id. at 448.
A final principle of contract law which could effect agreements with juveniles is the duty of good faith and fair dealing with the performance of every contract. U.C.C. 1-203 (1995).
Good Faith is defined as “honesty in fact in the conduct or transaction concerned. U.C.C. 1-201 (1995).
While the U.C.C. applies to the sale of goods, the principle of good faith runs throughout contract law. U.C.C. 1-203 cmt. (1995).
In parent-teen mediations the teens are told from the beginning that the agreement is unenforceable, and that if they follow through it has to be of their own will to make their lives and relationships with their parents better. However, in victim/offender mediations the agreement is not entirely unenforceable because the offender can face sanctions by the court if he does not follow through. Some commentators on the growth of juvenile mediation argue that juveniles should not have to enter into written agreements in mediations at all because they are unenforceable. 27 U. Tol. L. Rev. 897, 911-912. These commentators argue that juveniles are in a position of unequal bargaining power when they negotiate with their parents or victims because of their age, education and lack of life experience. Id at 911. Further, they feel that the juveniles are under pressure to enter into an agreement because they at times face worse consequences if they do not, such as punishment by the court. Id. These factors all amount to a lack of meaningful choice on the part of the juvenile. Id. These commentators further feel that the parents can use the agreement as a weapon to exert power over the teen.
Finally, they feel that there is an absence of good faith and fair dealing in mediations because the teen is not given the same procedural safeguards, such as the right to an attorney, that they are afforded in court. Id. at 917. Even where the juvenile knows the agreement is not binding the success rates of the teens following through on their agreements are good. However, I would argue that these agreements should be binding on teens. In my opinion commentators who criticize the formation of written agreements during juvenile mediations do not give the young adults enough credit. The parents and mediators involved normally have the best interests of the juvenile at heart, in search for a long-term change. To assume they are trying to use their superior life experience as a weapon goes contrary to the role parents and mediators play in society. The need for procedural safeguards such as a lawyer also does not play a role in mediation as it does in court. The law itself is usually left out of most mediations, which instead focus more on emotional issues. The juvenile always has the option of foregoing mediation and going through the normal juvenile crime process. Further, the participation in the process is voluntary and the terms of the agreement are suggested and decided upon by both parties participating in the mediation, taking away the absence of choice.
I feel that all contracts drawn up in juvenile mediations should be enforceable, as they are for adults. Because the juvenile voluntarily entered into the agreement, sometimes in lieu of a punishment by the court, it should be held to a very high standard. Such accountability would help reinforce the youth’s feeling of responsibility in society and pride in the agreement, a work that they helped to create. The Restatement of Contracts 14 allows for some juvenile accountability for their contracts when it says “Unless a statute provides otherwise, an infant has only voidable contract duties.” Legislators should take advantage of this ability to make infants accountable for their contracts by creating statutes which make agreements formed in mediation binding. I would propose for the government to create the following legislation: A contract shall be enforced as against a juvenile where it was created as a part of a voluntary mediation process in which the juvenile helped create the terms of the agreement and there is otherwise no evidence of bad faith dealing on the part of the mediator(s) or adults involved in the process. Such a statute would create a higher level of accountability than already exists in juvenile mediations, while simultaneously protecting the youth.
In a society where juveniles are becoming increasingly more liable for the criminal consequences of their actions, it seems natural that they could be held liable for contracts created in mediation. The second difference between adult and juvenile mediations is the extent to which confidentiality rules apply. In adult mediations confidentiality agreements are strictly enforced by the courts. State statutes such as the California Evidence Code ?1119 specifically protect the statements made in mediations from being used outside the mediation. The public policy behind the enforcement is that the courts do not want parties to use mediation for discovery or to get an additional witness for the case by calling a mediator to testify. In juvenile cases confidentiality agreements are also adhered to, but not to the same extent as they are in adult proceedings. A confidentiality agreement will be enforced against a juvenile, unless it has the potential of infringing on their constitutional protections. The Supreme Court in In Re Gault, 387 U.S. 1 (1967) outlined the constitutional protections afforded to juveniles. These rights include the right to notice, the right to counsel, the right of confrontation, the right to cross-examine witnesses, and the privilege against self-incrimination.
Id. at 54. The importance of a juvenile’s right to these due process protections has caused some courts to disregard the confidentiality agreements where they would interfere with the juveniles constitutional right to effectively cross-examine and impeach an adverse witness. An example where a confidentiality agreement was disregarded was in Ringer v. Superior Court, 62 C.A. 4th 155 (1998), a juvenile delinquency proceeding arising from an incident in which two minors allegedly threw rocks at a car. In Rinaker, the minors moved to compel the mediator to testify concerning the statements made by the victim during mediation when he admitted that he had not actually seen the persons who threw rocks at his car. The court allowed the testimony and created the following balancing test for determining when confidentiality agreements should be set aside where juvenile matters are concerned: “The trial judge should conduct an in camera hearing to weigh the public’s interest in maintaining the confidentiality of mediation against the minors’ constitutionally based claim of need for the testimony, and determine whether the minors have established that the mediator’s testimony is necessary to vindicate their right to confrontation . . ”
Thus, the juvenile does not automatically have the right to breach the confidentiality agreement, but he can if it is necessary to protect his constitutional rights. While I normally hold constitutional rights to the utmost importance, as a mediator the fact that confidentiality could be breached and I could be compelled to testify is a great concern. When I am explaining the process at the beginning of a mediation I always emphasize the fact that everything said during the process is confidential. The disputants rely on these statements and it causes them to say things that they would normally hold back, increasing the effectiveness of the mediation. Testifying in court would also jeopardize my position as a neutral third party, a position which also gains the confidence of the disputants and causes them to participate freely during mediations. Mediators in juvenile mediations need to disclose the fact that everything said during the mediation might not be entirely confidential, yet the disclosure of this fact could cause a breakdown of the process. Therefore, I would support breaching confidentiality only in the strictest of circumstances, with a more narrow interpretation than the one the court created above.
Based on my research it seems that family mediation presents the best prospect for long-term results and best avoids the problems of contract law and confidentiality that can have an impact on victim/offender mediation. Family mediation creates communication and solutions within the family, which is the starting place for many greater offenses. If law enforcement more avidly promoted these programs it seems it would get to the root of the problem that many teens are having before they commit more serious crimes. Family mediation also avoids many problems of contract law because the agreements reached there are always voidable. Thus, if a teen reaches an agreement in parent-teen mediation it is entirely voluntary, not because they risk some other form of punishment if they fail to do so. While I would support stricter contract laws for teens involved in mediation, parent-teen mediations avoid the problems of contract laws as they exist because there are no repercussions for breaching the agreement, other than the status quo continuing. Confidentiality rules also do not play as big a factor in parent-teen mediations. Parent-teen mediations do not normally stem from an ongoing court case, as do victim offender mediations.
Thus, there is little or no possibility of a due process violation, meaning that confidentiality will be preserved. Since many victim/offender mediations could result in a youth going to court if the mediation fails, confidentiality in these cases remains in constant jeopardy. I do not think victim/offender mediation should be eliminated. While this type of mediation contains the risks of violating contract law and confidentiality rules, the benefits to the victims seem invaluable. Some offenders interviewed after their mediations expressed the impression it made on them when their victim described how its child could no longer sleep at night because of what the offender did. From the victim’s perspective the mediation was also valuable because they were less fearful about being the victim of another crime when they heard the offender express his remorse. Because the statistics do not show a big drop in crime perpetration for the mediation participants, it does not seem like victim/offender mediation will be the solution for juvenile crime. But this type of mediation does pose an interesting alternative because by allowing the parties to express their feelings to each other, it could have healthier long-term results.
Overall it does not seem that mediation will work in all cases. Whether it is parent-teen mediation or victim-offender, the parties both have to voluntarily agree to be there and participate in good faith in order for the process to work. Thus, it seems there will never be a mediation-only system for juvenile justice. Further, while the programs have good results in status offender cases and smaller crimes, there are not as many examples of how it works with serious crimes. In serious crimes it seems less likely that mediation will ever play a large role because most courts and communities will want to remove these individuals from society rather than have them work out their offense with their victim. It could also have more serious effects on the victim if the offender is not remorseful, and the victim enters into the mediation hoping for some vindication.
