Originally from Dispute Resolution Journal

In 2004, Massachusetts’ highest court ordered a county sheriff to free dozens of indigent criminal defendants awaiting trial due to a shortage of public defenders to represent them.1 This situation highlighted a systemic problem in the American criminal justice system: the courts simply cannot keep up with the volume of criminal cases.2 In response to this problem, some jurisdictions have begun to use alternative means to divert matters from the criminal litigation track.3 One approach, which is the focus of this article, is the use of victim-offender mediation programs to resolve minor crimes.4 These programs resolve criminal complaints without a trial by having the victim and the offender enter into a negotiated agreement.5 This article highlights some of the legal and procedural issues that criminal mediation raises and discusses them in the context of existing criminal mediation programs.6

Mediation between the parties to a criminal act provides victims and offenders with a forum to mete out justice. As in mediation of civil disputes, both sides have an opportunity to explain their behavior to each other.7 Victims can describe how they suffered, vent their anger, and condemn the conduct of the offender who harmed them.8 For their part, offenders can explain what they did and why from their own perspective.9 Victims hear what happened directly from their offender in his or her own words. Thus, victims can come to understand, without condoning, what the offender did.10