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Volume 1, Issue 1, June 1998

ISSN 1096-4886 http://www.westerncriminology.org/Western_Criminology_Review.htm
© 1998, The Western Criminology Review. All Rights Reserved.


Victim-Offender Mediation Programs: An Exploration
of Practice and Theoretical Frameworks

John R. Gehm

 

Citation: Gehm, John R. 1998. "Victim-Offender Mediation Programs: An Exploration of Practice and Theoretical Frameworks." Western Criminology Review 1 (1). [Online]. Available: http://www.westerncriminology.org/documents/WCR/v01n1/Gehm//gehm.html.

ABSTRACT

Victim-offender mediation programs--structured encounters centered around a face-to-face meeting between crime victim and offender--have been the subject of modest but increasing attention. Although considerable variation exists across programs, the common element is a direct voluntary encounter between crime victim and offender. This paper explores what is known from victim-offender mediation research as well as related literature about victim willingness to participate in such meetings and its significance for criminal justice practice. An exploratory framework is suggested, drawing from restorative justice, equity theory, and narrative theory to stimulate further investigation of this area. Specific research questions and their implications for future research are identified.


Keywords: victim-offender mediation program participation, reconciliation, restorative justice, victims, research, theory


Victim-Offender Mediation Programs: An Exploration
of Practice and Theoretical Frameworks

Since the early 1980s victim-offender mediation programs involving face-to-face encounters between crime victims and offenders have been the subject of modest but increasing attention by researchers and theorists. While considerable variation exists with respect to program goals, pedigree, and their appropriate location within the criminal justice system, the common element is a direct voluntary encounter between crime victim and offender. This paper explores what is known about victim willingness to participate in such meetings and why such explorations are important. Finally, an exploratory framework is suggested to guide further investigation of this area.

VICTIM-OFFENDER MEDIATION: THE PROCESS

Victim-Offender mediation programs seek to provide an opportunity for crime victims and offenders to meet face-to-face. Discussion is encouraged and facilitated by a trained mediator, often a program volunteer. Also referred to as victim-offender reconciliation programs (VORP) or victim reparation programs, a common goal, in most cases, is to promote direct communication between victim and offender. Victims who participate are provided with an opportunity to ask questions, address the emotional trauma caused by the crime and its aftermath, and seek reparations.

In meetings that last about an hour on average, victims typically ask questions such as "Why me?" "Were you watching us?" "Do you have any idea what this has done to me/us/our family?" Reparations&emdash;sometimes formalized in a contract and always identified to the court&emdash;typically consist of monetary payments, on occasion personal service to the victim, and often "service restitution" to a community agency designated by the victim. In addition, such agreements sometimes include "behavioral" components (Coates and Gehm 1984; Gehm, 1990).1 Through such a process, offenders are thought to be held more directly accountable for their actions: They must listen to the human side of the injuries they have caused and must begin to take some responsibility for repairing the damage that has resulted from their actions. In some cases, that responsibility also includes offering genuine expressions of remorse.

Programs have traditionally identified numerous goals as the desired outcome of such face-to-face encounters: to reduce victim trauma, to humanize the criminal justice process, to increase offender accountability, to provide meaningful roles for victims, to provide restitution, to create opportunities for reconciliation between victim and offender, to enhance community understanding of crime and criminal justice, to break down stereotypes, and, in combination with other sanctions, to reduce reliance on conventional punishment (Coates and Gehm 1984; Zehr and Umbreit 1982; Umbreit, 1995). This last goal, however, has not gone unchallenged (Austin and Krisberg 1982; Dittenhoffer and Ericson 1983), and claims about victim-offender mediation and reconciliation programs as sole-sanction "alternatives to incarceration" (Zehr and Umbreit 1982) have faded somewhat into discussions about including VORP in a "package" of intermediate sanctions as possible sentencing options.

Despite such diverse goals these programs seem to share an understanding of justice as elegantly limned by Howard Zehr: Crime causes injuries. Injuries create obligations. Justice means making things right (Zehr 1980, 1985, 1990). It is this perspective of justice, discussed at length below, which frames the questions put forward here: Why do victims participate? What, if any, are the consequences of that participation? What are the implications for our understanding of justice generally or these programs particularly? First of all, however, to understand how these programs serve the world, one must understand the world they came from.

VICTIM-OFFENDER MEDIATION: HISTORICAL FRAMEWORK

Victim-offender mediation programs have become increasingly popular in the United States, where they began primarily in the Midwest with a handful of programs in the late seventies and early eighties (Coates and Gehm 1984; Hughes and Schneider 1989; Umbreit 1986). By 1989 such programs were reported operating in at least 42 different jurisdictions across the United States. At least as many are now operating in Canada, West Germany, England, and New Zealand (Fagan and Gehm 1993; Umbreit 1995).

While official program counts do not exist, surveys which have attempted to document the growth of the phenomenon suggest that the rise in new VORP programs has been steady and consistent, growing from less than three dozen in the early 1980s to over 200 programs by the beginning of 1996. The number of cases (typically, each victim-offender combination) each program handles has also increased. Umbreit (1995 and this issue) reports that there is growing interest in VORP in the European community, with the number of new programs there showing even more dramatic increases than in North America. Most programs are operated by private non-profit, community-based organizations working collaboratively with the local court system. Cases generally focus on non-violent property offenses and minor assaults, although a handful of programs deal with violent felony offenses&emdash;some exclusively.

It is generally accepted by most commentators that the "surface roots" of the VORP movement found sustenance in three distinct movements: 1) community justice models that stress restitution as a legitimate sanction along with an emphasis on deinstitutionalization and community-based alternatives to the traditional justice process; 2) conflict mediation and alternative dispute resolution; and 3) the rise generally of the victims' movement2 evidenced by such things as the passage of the Federal Victims of Crime Act (VOCA) in 1983, and the establishment of Office of Victims of Crime (OVC) within the Justice Department, which symbolically elevated crime victims' concerns to a level of national importance (Coates and Gehm 1989; Umbreit 1995). These “3 Rs” then&emdash; restitution, conflict resolution, and victim recovery&emdash; may usefully serve as descriptive markers for identifying the genesis of the movement and accounting for its growth over the past 20 years (Van Ness and Heetderks-Strong 1997; Zehr 1990).

Psychologist Arthur Eglash (1958) and colleagues (Eglash and Papanek 1959) had earlier raised the possibility of the criminal sanction considered as a "creative restitution process" whereby victim, offender, and community all find benefit simply by moving the frame of reference from the harm itself to the process of repairing the harm. Key to understanding what creative restitution might be was the opportunity for a face-to-face encounter between the person harmed and the harm-doer. Each encounter would be unique&emdash;contingent on the specific harm, the personalities involved, and the context in which the harm was perpetrated as well as the resourcefulness and abilities of the participants to create a meaningful response to the injury. That human contact, unmediated by any institution or organization, would hold the key to meaningful justice, by answering questions, breaking down stereotypes, and removing rationalizations and justifications through a reflexive process of "working out" the meaning of justice for these particular persons in this particular time and place.

Schafer (1965, 1970) advocated restitution as a new paradigm of justice, which, in fact, was simply a return to traditional sanctioning that elevated victim reparation to paramount consideration. Subsequently, many contemporary observers have come to share a similar perspective, albeit having followed slightly different paths and employing somewhat different terminologies: transformative justice&emdash;relational justice&emdash;balanced justice&emdash;feminist justice&emdash;green justice.

The deeper roots of VORP find a home in the traditions of numerous indigenous peoples on many continents, not just Europe and North America, who have long held the view that conflicts such as criminal offenses represent, foremost, a tear in the social fabric that must be healed. Face-to-face conversation between victim and offender may be seen, for example, in the context of the "family group conference" (Umbreit and Zehr 1995; Morris and Maxwell this issue) as seen in New Zealand. Drawing from older, aboriginal models, each individual offender and his or her particular victim(s) are brought together to talk. They are joined by various representatives of the community who have a stake in the resolution. In modern versions, such representatives may include the police, teachers, parents, and peers. The goal of such a face-to-face meeting, in addition to the opportunity for dialogue&emdash;a thing to be valued in its own right&emdash;is to come to a consensus on the appropriate outcome for the entire case, not simply victim reparation. The larger issue concerns the question of how might the community, torn by this conflict, best go back to being a community of whole cloth once more? There are many similarities between this wagga (Maori) model and other traditional approaches to “doing justice.”

Among Native Americans, traditional Lakota and Dakota peoples employ a similar model. Victim and offender are brought together in the presence of one or more elders. The elders speak first, discussing the rupture in the community that the offense represents, both symbolically and materially. All persons who have been affected in some way by the offense and its aftermath--friends, neighbors, relatives of the victim and of the offender--are allowed to speak in turn, without interruption, both to others in the assembly as well as specifically to the victim and/or the offender. Often, they describe the griefs they have suffered, their relationship to the parties, and finally, what they think ought to happen. Following these conversations, the larger group is invited to depart. In private, victim and offender must decide between themselves what is to be done to make things right. Once an understanding is reached, it is explained first to the community elders who then invite the larger group back into the meeting where the decision is announced jointly (Gunville 1997).

Huber (1995) reports on a Canadian program designed to draw from the rich symbolic traditions of many Native American peoples from the Canadian Northwest. The program utilizes the concept of the medicine wheel. The medicine wheel assigns certain qualities to each cardinal direction. Parties to the dispute move through the wheel in a circular, rather than a linear process. The East is seen as a place for openings and spiritual reawakenings; the parties are put at ease through prayers, the smudging of sweetgrass, or other rituals associated with beginnings. The South is the place for storytelling (recounting the tale of the offense). The West is the place of introspection, discovering values and identifying what is needed for satisfaction. The North, home of the intellect, is the place for working out solutions. At the end of the process, all parties stand in the center of the wheel to symbolize the holistic journey they have completed.

Most of these rituals typify ways in which the community comes together to discuss the harm which the act has caused, visibly demonstrate support for the victim, condemn the behavior while clearly differentiating between the act and the actor, and propose concrete ways the offender might constructively repair the breach in the social fabric.

According to these approaches, not only must effective punishment publicly condemn, it must also make provision for reintegration of the offender back into the community. Without such a restorative component and concomitant ceremonies or rituals of inclusion, the potential for stigmatization becomes very great. Australian criminologist John Braithwaite, in his argument for a theory of "reintegrative shaming" (Braithwaite 1989), observes that exclusionary punishments by themselves may lead to

...outcasting, to confirmation of a deviant master status&emdash;versus shaming that is reintegrative, that shames while maintaining bonds of respect or love, that sharply terminates disapproval with forgiveness, instead of amplifying deviance by progressively casting the deviant out. Reintegrative shaming controls crime; stigmatization pushes offenders toward criminal subcultures (1989:12-13).

VICTIM-OFFENDER MEDIATION: CONTEMPORARY APPROACHES

Some of the benefits that have been attributed to programs such as contemporary victim-offender mediation include high levels of participant satisfaction (Coates and Gehm 1984, 1989); a better understanding of the justice process ("humanized justice")(Umbreit, Coates, and Kalanj 1994); reduction in fear among victims of juvenile offenders (Umbreit and Coates 1992); high rates of successfully negotiated restitution contracts, along with high levels of successful contract completion (Umbreit et al. 1994); fewer and less serious crimes committed by participating juvenile offenders, when compared with non-participants (Schneider 1986); and the experience of anger release and emotional closure including forgiveness and reconciliation (Gehm 1992).

There is, however, an irony in all of this which has not been lost on many program practitioners. Before either victim or offender or community can experience any of the particular benefits associated with participation, they must be persuaded to overcome a natural skepticism and hesitancy to confront the person who injured them initially. Unless persuasive tactics are skillfully employed the supposed benefits of the program cannot be obtained. Umbreit (1995) refers to this phenomenon as the "paradox of forgiveness,” although in truth the irony holds for any of the aforementioned benefits as well:

Although forgiveness and reconciliation represent a powerful potential outcome of the process of mediator-assisted dialogue and mutual aid between crime victims and offenders, they must emerge in a natural and genuine manner that has meaning to the involved parties. Therein lies the paradox: the more one talks about forgiveness and reconciliation while encouraging parties to participate, the less likely it is that victims will participate and have the opportunity to experience elements of forgiveness. (P. 154)

For victim-offender mediation programs, it is the paradox of participation: unless victim and offender actually meet, most of the benefits and outcomes claimed for these mediated encounters remain "potential."

Who Participates and Why

The fundamental question we need to address then is this: Why would victims voluntarily reinvolve themselves in an emotionally charged setting that has the potential to restimulate all of the painful thoughts and feelings that the precipitating crime caused? In traditional cultures, victims, offenders, and others, participated largely due to firmly established community norms. Today, however, there are many competing norms and values with respect to what one "ought to do" in the face of criminal behavior. In truth, we know little about why individuals choose to participate in these meetings.

Participation in victim-offender mediation programs is generally understood by victims to be voluntary (Coates and Gehm 1984, 1989; Umbreit 1994); therefore not all those who are invited to participate choose to do so. Numerous studies and surveys demonstrate a wide variation in participation rates, ranging from 27 percent to 63 percent (Umbreit et al. 1994). The most commonly reported range of participation is from 40 to 60 percent (Coates and Gehm 1989; Galaway 1988, 1989; Gehm 1991; Marshall and Merry 1990; Umbreit 1995). The data displayed in Table 1 represents the frequency of meeting occurrence, contract agreement and completion among six VORP sites in the Midwest (Gehm 1990).

     

Table 1

Number and Percent Meeting Occurrence, Contract Agreement
and Completion Among Six VORP Sites

Case Completion

Number
Percent

All eligible cases

535
100

Meeting held

250
47

Contract agreed

228
43

Contract completed successfully

203
38
Source: Gehm (1990).

While it might truthfully be reported that "nearly 90%" of all meetings result in a restitution agreement or a contract successfully completed, in point of fact half of all potential cases drop out prior to a meeting. What factors might account for this? Few studies have directly examined this question. Participation rates appear to be unrelated to specific victim characteristics such as gender, age, religiosity, level of education, economic status, or occupation. (Coates and Gehm 1989; Gehm 1990). In a subsequent analysis of qualitative data obtained through victim interviews, Umbreit et al. (1994) report two philosophical orientations associated with victims who participated in meetings: one group that associated participation with their "civic responsibility" toward the courts, and another group that might best be described as having a "helping orientation" towards the offender. 3

In a study of five Midwestern VORP programs representing a mix of urban, suburban, and rural jurisdictions, Coates and Gehm (1984) examined contract components, completion rates, definitions of successful outcomes as articulated by program and court personnel, along with sentencing impacts on participating and non-participating offenders, and contract completion rates. Also interviewed were victims who had declined participation. Two offender samples were utilized: those who were referred into the program and a comparison sample of offenders matched on key background variables from the same jurisdiction but assigned to a different court whose judge did not utilize the program during this time period. Themes that emerged from non-participating victims to explain their reluctance centered around points such as "not worth it," "loss too small," or the victim being "too busy."

Subsequently, these same themes were revisited by Gehm (1990), who examined data provided by seven sites participating in a nationwide management information system.4 Programs included both court-based and private, non-profit programs. Data were provided covering a period of approximately 18 months. Victims were more likely to meet with their offender in a face-to-face meeting when victim and offender were of the same race and when the victim acted as a representative of an institution (a school, church, or business) rather than as an individual. Cases representing misdemeanors were also more likely to come to a meeting than were felony cases. Because most of the cases were misdemeanors, the data are reported cautiously.

Within the misdemeanor category there was no relationship between the probability of a meeting and the seriousness of the offense. There were also no significant associations observed between type of program (i.e., court-based/internal versus private non-profit/external) and participation rates or restitution compliance. Of the few offenders who choose not to participate in a meeting, most did so in the context of the private, non-profit program. Institutional victims (i.e., schools, churches, businesses) were generally found to participate at a rate higher than individual victims (Coates and Gehm 1984). Unfortunately, studies in this area are few and of limited usefulness or generalizability.

Umbreit et al. (1994), however, report using random assignment to groups in his study of victim-offender mediation programs ranging from large urban jurisdictions like Oakland and Dallas, to moderate-sized locations like Albuquerque, to smaller, rural locations. Not only the total sample size of over 1,000 respondents but also the range of programs represented is distinguishing. Other than the few studies discussed in this article most data on program participation rates, victim satisfaction, and, in some cases, recidivism have come from descriptive studies or internal program evaluations that have not utilized random assignment or controlled statistically for between-group differences. In addition, the majority of studies in this area suffer from small sample size and poor generalizability.

No studies have looked specifically at predictors of either offender contriteness or victim satisfaction. Generally, victims who do meet express high levels of overall satisfaction with the process and the justice system. The relatively few victims who were dissatisfied usually associated their dissatisfaction with programmatic shortcomings such as lack of follow-up by the mediator or failure to repay the full amount of the restitution (Coates and Gehm 1984). Some victims were "more satisfied," irrespective of the nature of the program, so long as they believed they influenced the process in some way (Smith and Hillanbrand 1981), communicated the impact the crime had upon them (Hernon and Forst 1984), or had some other sense of participation (Kelly 1982).

With respect to potential examinations of predictors of "offender contriteness and remorse," one problem lies simply in adequately defining contrition and operationalizing it. 5 Clearly further work needs to be done in these and other areas. Questions, for example, regarding the extent to which project characteristics and the philosophical orientation of staff might impact outcomes are not answered by the few existing studies. Additionally, more provocative questions regarding predictors of victim satisfaction and offender remorse await further study.

Institutional victims are slightly more willing to meet than individual victims. Victims may be more willing to meet with offenders of the same race/ethnicity, particularly victims who are white. Offenders who do not participate in meetings may face different outcomes than their counterparts whose victims agree to meet. Finally, victims participate not so much to recover monetary damages but to avail themselves of the opportunity to tell their side of the story. Following these face-to-face encounters, the motivation for recovery of damages becomes less important than having had an opportunity to frame the experience in a personal narrative.6

What inferences might we justifiably draw from the limited information regarding meeting rates and motivation of participants? Common sense or intuitive hypotheses might suggest institutional representatives are more likely to confront their offenders because the encounter is not so personal. Crime victims who are white may be more willing to confront offenders of the same race because of prejudice. And finally, the importance of restitution loses significance as victims who participate in these meetings quickly realize that their expectations of full recovery are too high. The diminished importance of restitution may be a reflection of the diminished likelihood of obtaining full redress. Many of the contracts and agreements that emerge from these meetings have multiple restitution components (monetary, behavioral, community and personal service). Victims may need to adjust their expectations that financial restitution will cover the full amount of their loss. Volunteer training materials routinely address the need to identify other forms of restitution that may be acceptable to the victim (Davidson 1997).

Some victims may decline a meeting simply because they believe that the trauma will heal by itself, naturally, given time; related to this is the widely held perception that confronting the offender might actually reinvoke the original trauma. Victims who decline to participate may believe that talking about the crime, re-experiencing the anger, fears, and frustrations, will not heal but will, in fact, make things worse. Indeed, common-sense notions about pain and injury would suggest a natural tendency to shy away from any situation that remotely resembles the original traumatizing event, whether it be a social relationship, a hot stove, or a criminal event.

Research has characterized the victimization experience itself as a loss of control, loss of meaning, loss of faith in humanity, and a loss of faith in a just and orderly world. Indeed, much of the recovery process has been described as a reordering or "sense-making" process (Bard and Sangrey 1979; Fischer 1984; Symonds 1980) related to re-establishing some of the shattered assumptions caused by the crime.

The reluctance of victims to involve themselves in the justice system is widespread and well documented. For example, 50 to 80 percent of all victimizations are not even reported to the police (Gottfredson and Gottfredson 1988). In general, businesses are more likely to report crimes to the police than households or individuals. In fact, the Gottfredsons suggest that the decision to report a crime may be influenced by a personal "cost-benefit" analysis. Greenberg and Ruback (1984), in studying rapes, report an aversion to notifying the police that is clearly linked to avoidance of re-arousal of the original strong emotions. Victims oscillate between conflicting goals: wanting to notify the police to re-establish a sense of order in their lives and wanting to avoid re-arousal of the original emotions (Ruback, Greenberg and Westcott 1984).

Participation: Related Issues

Of some interest here is the finding of the study by Gehm (1990) regarding participation based on race. With a sample size of 535 cases, a stepwise regression analysis was conducted using a dichotomous dependent variable (meeting/no meeting). Type of offense, race of the offender, and type of victim (institutional/individual) were all statistically significant (p < .05) predictors of meeting occurrence. In a subsequent analysis of the data, "common race/ethnicity" of victim and offender was also significant at the .05 level. However, the sub-sample of mixed race victim/offender was small (n=56) and marginally significant; there were other problems as well.7 Consequently, this finding is reported with extreme caution, more for what it implies than for what it confirms. Nonetheless it is presented here with appropriate reservation because of the potential issues it raises.

If subsequent more rigorous studies determine that when the victim is white and the offender is non-white the probability of a meeting declines, the logical next question would seem to be: what, if any, are the consequences of this disparity? Since most meetings occur between sentencing and disposition, it is reasonable to ask whether meeting or not meeting will impact the dispositional outcomes in any way. Are offenders who participate in these meetings&emdash;because their victims choose to do so&emdash;treated differently than those offenders who are not provided with the same opportunity? This is a question of some importance. If the victim controls whether a meeting will occur or not, and if one of the controlling variables in the victim's decision is the race/ethnicity of the offender, then examining sentencing outcomes solely on the basis of meeting/no meeting merits some attention.

Unfortunately, few studies have examined the question of sentencing outcomes. Tentative conclusions based on limited samples suggest that offenders who participate in a meeting may experience less state-mandated jail or prison. Twenty percent of each sample generated in one study (n=83) experienced some incarceration. There was overall little difference in the number of offenders incarcerated. However, where jail or post-conviction prison time was served, the mean differences between groups (matched for offense, race, age, gender, length of time between referral and meeting, offense seriousness, and adult and juvenile priors) was significant at the .001 level. In addition, VORP offenders tended to serve their time in jail rather than state prison, and served shorter sentences, 613 days (compared to 3,175 days for the controls, non-VORP offenders)(Coates and Gehm 1984). These findings are limited by the small sample size and the lack of multivariate statistical modeling. Despite these problems, again it suggests an area of concern: there may be real consequences for nonparticipating offenders. Schneider's (1986) study of a juvenile restitution program in Georgia found shorter custody times for program participants versus controls. The sample reported here is small and is limited to six program sites in the Midwest. Nevertheless, the findings pose intriguing possibilities.

Alone, such findings may not appear significant. However, in combination they rise, arguably, to a level of potential policy concern. Victim participation is voluntary. For the most part, offender participation is not. Offenders who do not participate in a meeting may experience slightly longer periods of court control or custody (albeit slight). Yet the doorway to those meetings opens via the victim, who may or may not choose to participate. If victim choice is even partially associated with offender race, due process concerns require a closer examination of these possible outcomes.

A second outcome of interest with respect to the question of "who participates and why" pertains to the more substantially documented finding that victims find VORP useful as a means for constructing and telling their stories. Mostly based on individual program evaluations and some qualitative studies, victims who participate in these meetings consistently rank outcomes such as "telling my story," "explaining my feelings," and "answering questions" as the most valuable benefits. "Restitution," an outcome found at the top of the list for many victims before the meeting, usually drops significantly lower once the meeting has occurred (Coates and Gehm 1984, 1989; Umbreit 1995; Umbreit et al. 1994). Programs sometimes invite participation on the basis of providing victims with the opportunity to recover losses. However, it is the opportunity to tell their story which clearly emerges for victims as the most significant benefit.

VICTIM-OFFENDER MEDIATION: THREE THEORETICAL FRAMEWORKS

Three theoretical frameworks&emdash;restorative justice, equity theory, narrative theory&emdash;are briefly presented here as potential entry points for thinking about victim participation in face-to-face encounters with offenders. Restorative justice attempts to reframe the contemporary response to crime by pointing back to earlier community norms based on healing, reintegration, and holistic conceptions of justice. This orientation shares much in common with traditional models and their emphasis on offender accountability and reintegration, community values, and victim reparation. It is essentially a higher order framework addressing community and cultural norms, and general social expectations concerning justice. While there have been numerous discussions regarding the characteristics that describe a restorative justice program, along with appropriate yardsticks for measuring restorative outcomes, this model remains most useful at the macro level, describing the process of a shift in values at the social and cultural levels.

Equity theory represents an explanatory framework located at the individual, psychological end of the playing field. Through this means, participation for victims in "this or that program” may be viewed somewhat as a cost-benefit function of the tools perceived to be available for reestablishing balance whenever an inequity has occurred.

Finally, narrative theory is put forward as a third, integrative framework for talking about victim participation in face-to-face encounters. Narrative theory, as utilized here, is proffered as an attempt to bridge higher-and lower-level explanations. A narrative framework, spanning theories of equity and restorative justice, enables us to think about the recovery from trauma by crime victims as essentially a storytelling process. It is the construction of meaning at the individual and cultural levels in a recursive or interactive process. It enables us to explore and develop models of participation based on an innate need to tell stories&emdash;and find a willing audience. Explanatory theories of participation, then, to be truly useful, must pay heed to both personal and communal needs.

Restorative Justice

Discussions about victim-offender mediation programs often talk about them in the context of "restorative justice" (Galaway and Hudson 1990; Umbreit 1994; Wright 1991; Zehr 1990). The restorative justice model is often set up against the current justice paradigm of "retributive justice," which has been described as "a violation of the state, defined by lawbreaking and guilt. Justice determines blame and administers pain in a contest between the offender and the state directed by systematic rules" (Zehr 1990:81).

Restorative justice emphasizes that crime is interpersonal as well as a violation of state-enforced norms. Victims and offenders are encouraged to become directly involved in resolving lingering conflicts and in repairing the harm that has been caused. First, restorative justice advocates view crime as more than simply lawbreaking, an offense against governmental authority; crime is understood also to cause multiple injuries, to victims, to the community, and even to the offender. Second, proponents argue that the criminal justice process should help repair those injuries. Third, they protest the government's apparent monopoly over society's response to crime (Van Ness and Heedtkerks-Strong 1997:31).

Restorative justice theory views harsh punishment for the offender as less important than empowering victims in their search for closure through direct involvement in the justice process. At the same time, restorative justice attempts also to impress upon offenders the real human impact of their behavior. Both victims and offenders are viewed as active players in responding to and resolving the criminal conflict (Umbreit 1995). As Zehr (1990) observes, restorative justice views crime as a “violation of people and relationships. It creates obligations to make things right. Justice involves the victim, the offender, and the community in a search for solutions which promote repair, reconciliation, and reassurance” (p.181).

Others have characterized this perspective as a "feminist vision of justice" (Harris 1987), as "balanced justice" (Bazemore 1993), or as "green justice" (Wright 1991). Similar arguments in earlier literature have also been made in the context of discussions regarding the role restitution alone might play in accomplishing similar goals (Barnett 1978; Eglash 1958; Eglash and Papanek 1959; Laster 1970; Shafer 1970).

Herman Bianchi (1994) describes a tsedeka model of justice. (Tsedeka conveys the Hebrew sense of "justice," but defies easy translation.)Bianchi contrasts the tsedeka model with the punitive Western model of justice by focusing on a "priority of results over intentions” (Bianchi 1994:19).

If one were to use restorative justice as an explanatory framework, it would then have to be theorized that victims participate, and are likely to benefit by participation, because such programs are closer to a truer or purer justice than the current model allows for. These arguments tend to focus on the presumption that somewhere along the historical development of the current justice system an inappropriate detour was taken. Restorative justice in general and victim-offender mediation programs in particular, then, would seem to represent a return to the "proper path" of justice, a more personal rendering of the social conflict. Societies whose conception of justice is more in line with a restorative than a retributive paradigm are able, in this view, to provide their constituents with "better" justice (i.e., fairer, less expensive, faster, more concrete and less symbolic, less impersonal, more cost-effective, etc.).

The positive outcomes of programs situated in such a restorative framework can be attributed to the quality of the justice process. It is an essentially aesthetic explanation, which does little to explain mid-level or individual variable mechanisms such as why it might be a more appealing pathway for one victim than for another. It generates little that is suitable for empirical testing at the individual level. However, as a comparative model, it serves to usefully frame discussions regarding social assumptions about justice. Its utility may lie in establishing the general "climate of justice" for a particular community or subculture. In the context of this discussion, it may help to point us toward understanding the audience of listeners to whom justice stories get told.

Equity Theory

At the risk of gross oversimplification, equity theory is premised on the relatively straightforward notion that individuals possess certain normative expectations about what is considered fair and just in any given situation. (Walster, Walster and Berscheid 1978). When that innate sense of equity and fair play is violated, victims tend to choose a strategy or technique which will most easily enable them to restore balance as they perceive it. Simple examples suffice: If he hits you, just hit him back. If she does it again, tell the teacher. If he blasts that horn at me one more time, I swear I'll slam on my brakes.

Which technique is employed can be seen as a function of its availability as well as its perceived cost to the user. Such costs, of course, may include psychological ones. In the examples above, for instance, hitting back may not be in the repertoire of socially acceptable behaviors. Alternatively, the probability of receiving a black eye in response may be considered too great a cost for physical retaliation. From the range of available equity restoring options, a cost-benefit calculation is made&emdash;sometimes very quickly&emdash;and a response is selected that suits the victim. The theory holds, further, that the less costly an equity-restoring technique, the more likely it will be used. If community norms encourage clan conferencing, elder councils, or other reparative processes, these methods will most likely be chosen.

While there are benefits to participation in a face-to-face encounter, there are also costs. Clearly, for some individuals the cost of participation, in terms of psychological anxiety, is not enough to offset the benefits of economic compensation or psychological equity provided through emotional closure. Equity theory suggests that examining issues of costs&emdash;particularly perceived psychological costs as well as perceived availability of the equity restoring technique&emdash;may be useful for exploring victim-offender mediation participation rates.

Victims who participate in face-to-face meetings may have simply adopted (or grown up with) a value orientation consistent with reparative/restorative options. In other words, participation in a victim-offender mediation program may make sense culturally and therefore represent a less costly choice. For example, many of these programs have strong developmental ties to the Mennonite Church, with its long tradition of peacemaking and alternative approaches to conflict and disputes. Within the victims’ movement itself there remains a strong, biblically-based component which speaks to the necessity of reconciliation and alternative means for obtaining social justice that are outside traditional institutions. Indeed, "system-based" programs may even be viewed with a certain amount of healthy skepticism.

Some victims may choose to participate in an alternative approach because of negative associations from prior experiences with the established criminal justice system. For others, the psychological costs of re-encountering the offender may simply be perceived as too high and they will decline participation. There will be some, however, for whom obtaining closure through a face-to-face encounter may be more appealing (psychologically less costly) than the established system. Using equity theory as an explanatory framework clearly requires us to gain a better understanding of the kinds of costs victims associate with meeting their offender versus the rewards that may be obtained by them from such encounters. Narrative theory, discussed below, is proposed as the framework that can integrate these discussions.

Narrative Theory

A third theoretical framework focuses primarily on the opportunity for victims to tell their story directly to the character who has been suddenly thrust into their narrative. Storytelling as a therapeutic process and as a vehicle for greater self-awareness has a long tradition (Bettelheim 1976). Indeed, psychiatry itself, going back to Freud and Jung, might be characterized as mentally and spiritually redeeming storytelling. Most aboriginal cultures place great significance on the power of stories to heal and to bind communities together (LeGuin 1980; Simpkinson 1993). Much of this tradition is manifested in the rituals associated with healing conflicts.

In the context of criminal victimization, story-telling may have equally powerful, though as yet little understood effects. As medical sociologist, Andrew Frank, observes in his pathbreaking analysis of storytelling and illness, there is a reconstructive process at work: "[T]he ill person who turns illness into story transforms fate into experience” (Frank 1995:xi). Similarly, injured people often experience a loss of control; turning the injury into a story is a kind of meta-control. As Frank further comments:

Serious illness is a loss of the "destination and map" that had previously guided the ill person's life: ill people have to learn to "think differently." They learn by hearing themselves tell their stories, absorbing others' reactions, and experiencing their stories being shared (Frank 1995:1).

As we tell our stories we are really speaking as much to ourselves as to our audience. We remake ourselves in the process of listening to our own stories as we tell them to others.

Victim-offender mediation programs may be addressing in some important way the "narrative injury" that crime causes its victims. The stories told in such programs may represent a pathway to recovery in much the same way that story-telling allows physically injured persons to recast themselves in light of the new characters and events in their life stories.

Frank describes some of the more traumatic injuries as "narrative wrecks" that must be repaired. Injury interrupts&emdash;or wrecks&emdash;the narrative pathway. In going from A to C by way of B, suddenly, violently, and unexpectedly "Situation X" comes into the story. We can no longer continue along the same route. It is impossible; the route has changed forever. The injured person must find a new path. Stories allow that to happen.

This narrative wreck occurs for crime victims, also, with one additional complication. Not only do victims need to find a new path to C (and perhaps now to D or E), they must also come to terms with a new character in the story, "X." Their victimizations are not "accidents" or fate, only, but must account in some way with the volition of another actor (the offender). It is significant that in victim- offender programs participants are given an opportunity to begin to construct new stories in the presence of the very "de-constructor" of the original one.

The mediation process itself has been described as essentially a storytelling process consisting of Plot, Character, and Theme (Rifkin, Millen, and Cobb 1991). What links these components is the dynamic of the narrative, which suggests that stories are "successfully accomplished" through interactions with others, and not in isolation. That is, stories do not make sense unless they are linked to others' stories: "every victim requires an offender" to fulfill that role assigned in the story. The role of the mediator in such a model is to re-frame the story, by analyzing its logic (plot), characters, and themes. In other words, mediators deconstruct the narratives as told by the parties, and together with them identify at least a common 'theme' for a new narrative (Gosling 1992:6). The mediator may take an active role in the reconstruction, but more often plays a more facilitative role. The critical factor is not the content of the story, but the process that "the story ignites" in both the teller and the listener (Simpkinson 1993). In a sense, this process is quite similar to what has been described in more conventional narrative theory. Rather than conceptualizing the story as a rational, linear progression, narrative approaches consider its multi-dimensional aspects, much like the medicine wheel approach described earlier. Characters in the story each possess an interior, a history, a unique perception of the chronology, and even a unique sense of the injury. No two characters will possess identical stories.

Narrative theory, to make sense out of sometimes conflicting and contradictory social experiences, presents a two-level model: story and discourse. Story refers to content, discourse to the means by which that content is communicated (Chatman 1978). The surface story may be surprisingly similar for all parties: a house burglarized, property destroyed, items taken, anger felt. The deeper story, the discourse, will be unique to each person telling the story, depending upon the meaning of "house," "property," "anger," for each teller. Allowing the full story to be told, and engaging it fully by listening to each person’s version, acknowledges that qualitative difference. This is in line with most aboriginal accounts of peacemaking councils and conflict resolution models utilized by traditional peoples, where letting each person who wishes to speak do so&emdash;and letting each have their full say&emdash;is a nearly universal component.

Much of how people think about themselves is contained in their stories. Stories help make sense of personal experiences "when confronted with a confusing and contradictory array of social information” (Baumeister and Newman 1994:678). The creation of such accounts is motivated by people's needs for meaning: 1) the need to see events as causally linked; 2) the need to affirm one's sense of moral right and wrong; 3) the need for a belief in personal efficacy; and 4) the need to defuse potential threats to self-worth (Baumeister and Newman 1994). Programs that dictate our stories to us may not be as successful as those that allow us to write our own endings and, especially, to add our own creative, uniquely personal flourishes along the way. For example, in the aftermath of a home invasion, telling the story of the senseless destruction of a family heirloom may not "fit" a narrative dictated by the needs of a prosecutor or the rules of criminal procedure when presented in open court, but it may become vitally important as a means of reconstructing events on the victim's own terms.

If telling stories is therapeutic, what is the process? It has been suggested that disclosure, such as might occur in storytelling, is a way of accessing, experiencing, and verbally expressing the stored meanings surrounding past events. It has been hypothesized also that storytelling to and by human beings may provide an efficient method of reducing worry and the anxious condition it generates (Borkovec, Roemer, and Kinyon 1995). There may be an innate, physical need to express narrative (Schank 1990). Yet such open expression is not always easy to do.

Bucci (1995) talks of the interaction of language with other cognitive, emotional, and physiological systems and succinctly identifies the essential dilemma: the problem of verbalizing intense emotional experience. It is hard to express strong emotions. At best, one might say something like, "I was too angry for words." However, after overcoming the initial reluctance in a facilitated process,8 strong emotions can be verbally expressed by describing in concrete terms specific images and episodes. Memorable, detailed images contained within stories provide the materials for making referential connections; the less abstract the images are, the better. Good stories require specific detail&emdash;the very thing which the victim-offender mediation process encourages.9

When individuals talk or write about events that carry emotional significance, important biological changes occur. Talking about a trauma brings about striking reductions in blood pressure, muscle tension, and skin conductance during and immediately after such disclosure (Pennebaker 1993). Such changes are even more apparent among individuals who directly express emotion, as opposed to simply giving a dry recounting of the facts (Pennebaker 1993).

In the process of telling what happened, especially if the stories are filled with concrete examples, subjects often experience a reduction in anxiety. By giving a name to our vague feelings of dread, fear, doubt, and the like, and by giving them a role in a drama of our own making, we help to physiologically defuse them and render them less potent. Schank (1990) suggests that this is what goes on when we experience the desire to tell others our nightmares upon awakening. By telling others our nightmare, for example, we make it memorable as a dream&emdash;not just a collage of undifferentiated fears. Likewise, if we bypass the organizing process that occurs through the telling, and keep a traumatic event to ourselves, it may continue to haunt us, or we may discover fears emerging years later because of associations with experiences we have "forgotten."

Research into victim-offender mediation programs consistently finds a generalized reduction in fear and anxiety among participating victims, both fear of being revictimized by the particular offender as well as more free floating anxiety (Umbreit 1994, 1995). Studies of fear reduction in victim-impact panel participants (Mercer 1993) and improved psychological functioning for those victims who submitted impact statements to court (Davis and Smith 1994) show results consistent with the assumption that narrative matters.

CONCLUSIONS, IMPLICATIONS, AND SUGGESTED NEXT STEPS

At best, these speculations are intriguing. They are not proffered as the basis for constructing a macro system of "restorative justice theory of equity narrative." They do suggest, however, a useful path to explore for researchers, policy makers, and practitioners. Following Braithwaite (1989), who cautions against simply exploring the associations between one individual form of behavior and another ("micro-micro"), or presuming aggregate behavior as the sum of individual behavior scores ("micro-macro"), what appears to be necessary is a multi-level or holistic approach. We must be able to "move backwards and forwards between the macro and the micro in a way that sees human beings as neither totally determined by structural variables nor totally unconstrained in their choices” (Braithwaite 1989:110). Such an approach is particularly necessary, I would argue, in the case for enhancing appreciation of how the individual is embedded within a unique "justice paradigm" but may behave either counter to it or consistent with it based on psychological (and even biological) needs also embedded within the individual. Those behaviors, in turn, may serve to subtly alter the existing paradigm.

Restorative justice theory explains "the climate of justice" and the gear available for responding to it. Equity theory then may help us understand lower-level choices: what gear the individual actually perceives to be available and which is actually selected. If we look at that "gear" as story, then narrative theory may help to integrate the levels and provide us with the beginnings of a useful framework for asking good questions regarding victim-offender mediation programs: which stories get told, who listens, what other responses might also count as story (i.e., when does the "main character"/offender have to be present during the narrative; is it to be written/verbal, formal/informal?), and even how do stories "work" at a biological level? Restorative justice has been put forward as a "sensitizing theory" (Zehr 1990). Perhaps it might also serve as a "climate variable" in asking the questions: To what extent does a climate in which there flourishes a variety of restorative justice behaviors influence the choice of equity-restoring options among victims? Does behavior then also influence climate?

Institutional victims may be more willing participants because their stories are more readily accessible and rehearsed. They are more likely to have experienced this kind of impersonal injury before and so can better understand and articulate the meaning of their narrative. The more one practices, the more one tells and retells the same story, the better one gets at the telling, and the less reluctant to proceed with a story when circumstances call for it.

With respect to white/non-white participation rates, prejudice, fear, unjustified stereotypes, all these may certainly be a part of the explanation, but an alternative explanation may, again, impact the climate of storytelling. Because of the well-documented cultural gap that exists in this country, our values, goals, expectations, and even symbolic vocabularies may differ across races and across classes. If we do not share a reasonably common vocabulary of experience, we cannot begin to tell our stories. We will talk at or past one another rather than engage in dialogue with one another. How can we tell our stories when we're not sure the listener can hear?

Much more research needs to be done. First is research that systematically investigates outcome differences between offenders who participate and those who do not, with victim willingness to participate as a key independent variable, while controlling for race. If racial divergences hold true in a larger sample, then clearly equal protection concerns exist that need to be scrutinized more closely.

The second research implication raised by this general discussion has to do with a need to further explore the relationship between storytelling and victim mental health--particularly in the context of victim-offender mediation programming. What are the psychological and physiological dynamics that might account for some of the more positive outcomes which have been reported by the programs? Here ethnographic accounts of the kinds of stories being told and the ways in which they are being told may go a long way toward illuminating one important pathway for victim recovery. Regarding the racial question, such an analysis might be particularly revealing with respect to cross-ethnic dyads, in order to determine if language is a barrier to understanding or telling a story. Controlled experiments that investigate existing physiological differences--and subsequent changes--between disclosers and non-disclosers would also be in order.

Finally, rather than examining storytelling as a dichotomous variable, it might be useful to look at the whole range of opportunities in which victims might be involved: counseling, victim impact statements, victim impact panels, and victim-offender mediation. What is the most effective venue or format consistent with victim safety and healing? How is storytelling "healing" and to what extent can victims be expected to benefit from it?

The few studies conducted thus far to investigate the potential effectiveness of victim-offender mediation programs point to the beneficial effects of storytelling coupled with the positive health aspects of disclosure. Research in the physiology of emotions and in the discourse of story and narrative argue the innate need to "tell our stories," particularly after a intense or traumatic experience, such as criminal victimization.

Further elaboration of this model is clearly needed, as is the need for experiments designed to identify whether approaches such as victim-offender mediation are any more or less effective than less confrontational alternatives such as letter writing, journaling, impact panels. Do the positive effects of participation persist? Can the positive effects be enhanced by coaching victims to include emotionally significant, concrete details in their stories? Finally, are there some emotionally reticent individuals who may be harmed by such disclosure and confrontation?

Victim-offender mediation represents an interesting new development in the area of victim assistance. Preliminary research is intriguing and suggests a rich and varied, though largely unexplored terrain for criminal and social justice researchers and policymakers.

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Endnotes

1. "Behavioral" components may range from handshakes and apologies to specific actions on the part of the offender which are meaningful to the victim (Coates and Gehm 1989; Gehm 1990). Examples include promises to obtain a G.E.D., avoiding certain conflictual locations, reading books, writing letters, and, in one case, selecting, planting, and caring for seedlings to replace trees which had been destroyed in a night of drunken vandalism (Coates and Gehm 1984).

2. A central focus of the "victims’ movement" has been to reduce the marginalization of crime victims, moving them into a more central place in the crime and justice equation. Through the creation of such things as impact statements and victim compensation programs, and other victim-centered initiatives, the goal has been to assist in the recovery from the injuries of victimization, including not only material losses but emotional and psychological damage as well. (Bard and Sangrey 1979).

3. On the offender side of the equation, most participated in a meeting feeling that they had little choice. The issue of "voluntariness" from the offender's perspective is problematic. The disjunction between rhetoric and the reality of supposed voluntary participation by all parties has been discussed in earlier work by the author (Coates and Gehm 1984).

4. Participating sites included Valparaiso, Indiana (near Chicago); Wichita, Kansas; Eugene, Oregon; Portland, Oregon; a consortium of three small programs located in southern Indiana. Information was supplied by program personnel who provided data on cases which resulted in meetings as well as those in which victims declined to participate.

5. Another rather interesting approach to predicting offender outcomes might involve the degree to which techniques of neutralization (Sykes and Matza 1957) are employed by the offender and successfully or unsuccessfully countered by the victim. According to neutralization theory, the degree to which an offender can minimize the harm his or her actions have caused, or maximize their justification, is related to the continued participation in offending behavior. Through hundreds of hours of observations in such meetings, I have been struck repeatedly by the number of exchanges which occur between offenders offering one or more "techniques of neutralization" and victims countering their claim or, in many cases, deconstructing the whole notion of rationalization (e.g., "That's not what we're here to talk about. The point is, you did it.")

6. As one victim interviewed for the study explained, "The day [Katherine] was killed [Brian] instantly entered our story&emdash;the story that, up until that morning, at least, had me walking my ‘little girl’ down the aisle, had grandchildren on my knee, had family reunions, had a nice happy ending. He changed the story&emdash;this total stranger had made himself into a major character in our story. We had to try and somehow make sense of it all."

7. Missing data is a problem here. Some programs did not routinely provide victim race or reported it, if known, as "same as" or "different from" offender.

8. Bucci (1995) speaks in the context of the psychotherapeutic model, but similar "facilitation" might also be found in a mediation or panel model.

9. For example, victims are often encouraged to bring with them to the meetings repair bills, photographs of the damages, and other materials they feel may be relevant. Additionally, victims are encouraged to consider the specific ways in which they and their families have been affected by the crime and its aftermath. Bringing materials to the meeting is more than just documenting; it also serves as a concrete reminder of specific facts, incidents, and examples.


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John R. Gehm

John Gehm is an assistant professor at the University of South Dakota. His research interests include victim-offender mediation and reconciliation programs outcome assessments, restorative justice, and theoretical explorations concerning the function of forgiveness in the criminal justice system.

Contact information: Criminal Justice Studies Program, University of South Dakota, 414 E. Clark Street, Vermillion, South Dakota 57069. E-mail: jgehm@sundance.usd.edu.


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