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The State of Mediating Criminal Misdemeanors-National Overview.

Alternative Caption: Most Americans can now distinguish among mediation, medication and meditation. This is Progress!

I was asked by the 2020 Texas Mediation Annual Conference to give their keynote on the history of mediation of criminal cases. Here it is:

Let me tell you a story-a story of my mediation career that mirrors the mediation movement.

Of course, we know history is in the eyes of the teller.

I tell this story with a bit of humility. At the same time, I was the,

-Among one of the first law student criminal mediators.

-First Prosecutor in charge of a criminal intake & mediation program.

-First District of Columbia based Executive Director of the ABA (American Bar Association) Dispute Resolution initiative.

-First Executive Director of NAFCM (The National Association for Community Mediation).

QUOTES: These broad ranging quotes guide me in my approach to dispute resolution and specifically, mediation.

-If your only tool is a hammer, everything looks like a nail. (Maslow) Each of us need to develop a dispute resolution toolbox with mediation being one of those tools.

-A dispute is like an archeological dig. My experience indicates that ½ of the time when a dispute arises, what is on the surface is the dispute. One half, not. You need to get out of your archeological brush. Brush is off. What is underlying the surface issues? What are the underlying issues? Think of this like peeling an onion. Think of this like un-nesting, nesting dolls.

-A person pushed vs their will is of the same opinion still. I have been teaching at The George Washington University School of Law for 34 years. Most of my students initially believe that I am going to teach them how to push people to see it “their way.” This is not my approach to negotiation. I want to present others enough information so they find their own way to another perspective. Maybe they only get to the point of saying, If I were Larry, I would see it that way. I can walk in his shoes.

Let’s start broadly discussing dispute resolution and then note significant steps during the past 50 years.

First, we cannot tell the dispute resolution history without references to the Texan Dispute Resolution Giants: Judge Frank Evans, and Kimberlee Kay Kovach (KK will come to play in my OHIO part of the story. She worked for me until she left to direct the Houston, Texas, mediation program.).

DEFINITIONS OF MEDIATION AND CRIME:

MEDIATION: For purposes of this presentation, “mediation is defined as a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute. Mediation serves various purposes, including providing the opportunity for parties to define and clarify issues, understand different perspectives, identify interests, explore and assess possible solutions, and reach mutually satisfactory agreements, when desired. (Model Standards of Conduct for Mediators, adopted by NAFCM, ABA, AAA, ACR.*

I distinguish mediation from VORP (Victim Offender Reconciliation Program), VSOD (Victim Sensitive Offender Dialog) = maybe more facilitation than mediation.

MEDIATION STYLES-MEDIATOR CLASSIFICATION INDEX (MCI): It should be noted that there are a wide variety of mediation styles ranging from Facilitative to Evaluative. MCI is a fascinating instrument to detect mediator styles.

CRIME: To some degree this is more difficult to clearly define. The definition is ever changing/dynamic. Most people instantly think of murder, robbery, kidnapping, but crime is so much broader.

Crimes are injustices not only to the victim but to society. This is why only the government or the authority can bring criminal charges. Victims believe these are THEIR case but actually it is the GOVT’s.

Criminal convictions often involve incarceration and probation.

The standard is “beyond a reasonable doubt.”

Because of the govt, that plea agreements and negotiations between the victims and the perpetuators can be rejected by the judge.

The definition of crime is NOT STATIC. It is dynamic.

-Look at the progress US has made in the drug area or the same sex arena. Homosexuality was a crime until the past 30 years.

Through the 20th century, the gradual liberalization of American sexuality led to the elimination of sodomy laws in most states. The Supreme Court decision: Lawrence v. Texas, invalidated sodomy laws in the remaining 14 states. (Alabama, Florida, Idaho, Kansas, Louisiana, Michigan, Mississippi, Missouri (statewide), North Carolina, Oklahoma, South Carolina, Texas, Utah, and Virginia).

-Maryland has just made strangulation a first degree Felony under the Hate Crimes Law.

-As of October 1, 2020, Maryland has changed their Hate Crimes law to include symbols such as nooses and swastikas used to intimidate someone.

-There is even prosecution for threats on the internet; Some, would call simply call this “trolling.”

-When I was a prosecutor, we did not have a specific Domestic Violence law. We had to file under the traditional charges of threats and assault.

Also, so many situations involve both criminal and civil actions.


1906 ROSCOE POUND CONFERENCE:

Let me preface My Story with a reference to Roscoe Pound.

You may know this name from his being Dean at Harvard Law School and a Legal Reform crusader, but his most famous speech occurred in 1906 to the ABA in St. Paul entitled,

Popular Dissatisfaction with the Administration of Justice.

This became a landmark speech. As a 36 year old nationally unknown Nebraska Law School Dean , he astounded the audience of approximately 400 by being critical of the American Legal System. The ABA audiences were accustomed to hearing legal scholars extol the US justice system.

The audience was alarmed and became angry with the attack on the legal system.

Yet many of the young attorneys knew Pound was speaking the Truth and vowed to take action. This speech began Pound’s reputation as a great Legal Reformer.

He acknowledged that 80% of Americans felt that the American legal system is the best in the world BUT

There are issues with both the criminal and the civil system.

He offered a DIAGNOSIS:

-First, people are realistic that there must be rules in order to have order and peace.

-Second, people seek FAIRNESS AND JUSTICE whether one is rich or poor.

WHAT ARE THE CAUSES OF DISSATISFACTION?

-The mechanical operation of rules. No flexibility. No adaptation.

-The difference between public opinion and the laws. Laws seem to be so far behind public opinion.

--He declared that our justice system is not decadent but simply behind the times.

-The assumption that justice is an easy task, which is of course, not true. Instead, it is most complicated.

--Many view justice as a game. Pound implored the attorneys to abandon theory of justice.

70 years later this CALL FOR REFORM speech was celebrated at another national conference of the same name that will be referenced later.

IMPORTANT MEDIATION DATES:

1918 US Labor adopted a conciliation approach to many disputes.

1926 AAA (American Arbitration Association) created. (mostly civil)

1947 FMCS (Federal Mediation and Conciliation Service) established. (mostly civil)

1964 The Community Relations Service (CRS), a component of the Department of Justice (DOJ), serves as “America's Peacemaker” for communities in conflict by mediating disputes and enhancing community capacity to independently prevent and resolve future conflicts. Established by 1964 Civil Rights Act.

1975 NPP (Night Prosecutor’s Mediation Program, Columbus, Ohio, funded by the US Department of Justice, LEAA Program.)

1976 Pound Conference also at Harvard University Law School.

1977 NJC (Neighborhood Justice Centers-Atlanta, LA and Honolulu) established by the US Department of Justice.

1979 ABA establishes the DC based Special Committee on Resolution of Minor Disputes in DC.

1980 Summary Jury Trial (U.S. District Judge Richard Enslen-Kalamazoo, Michigan), Mini-Trial (Los Angeles Litigator Ronald L. Olson in the TRW case.)

1983 Program on Negotiation (PON), Harvard Law School

1985 ABA Multi-Door Dispute Resolution Programs with experimental sites in Tulsa, Houston and DC. The bedrock of this approach is dispute Taxonomy, that is the matching of dispute with dispute resolution process created by Harvard Law School Professor Frank E. A. Sander

1994 ABA House of Delegates overwhelmingly transformed the committee into the Section of Dispute Resolution in line with other ABA sections of criminal justice, administrative law, litigation, et al.

STRUGGLE: HOW TO DEFINE MEDIATION AND THIS INITIATIVE

Initially advocates of alternatives called this field: ADR=Alternative Dispute Resolution. Some attorneys and judges began to wonder, an Alternative to what? To attorneys? To judges? To the legal system? In reality, alternative meant an alternative, to the adversarial approach. Despite this, some jurisdictions tried to distinguish this initiative by substituting adjectives.

PDR (OH), Former Ohio Governor Richard Celeste with a Peace Corps background began using “peaceful dispute resolution.” Celeste created the Governor’s Peace and Conflict Management Commission prior to the establishment of the Ohio Commission on Dispute Resolution and Conflict Management.

IDR Los Angeles for a while used “improved.”

FDR The then American Trial Lawyers Association substituted “flexible.”

BDR Canada, “better.”

EDR New Jersey, “effective.”

SDR Australia, “supplemental.”

ADR Massachusetts progress to “appropriate.”

DR-Probably it is wisest to simply call it Dispute Resolution, leaving off the other adectives.

Columbus, Ohio, Night Prosecutor’s Mediation Program

Now, let’s focus on what I consider to be the first criminal mediation program in United States.

This program emanated from the confluence of four factors:

-One: Criminalization of civil transgressions.

--Many viewed the US civil courts overloaded in the 1970’s. So, one response was to criminalize civil actions such as passing bad checks, failure to cut grass in the front yard, failure to turn in car license plates after violations, failure to shove snow, failure to clear junk on properties, noise disputes, etc. This action of course increased the criminal court caseload.

-Two: A Columbus, Ohio, court ruling decreed that if any person aka claimant, asserted all of the elements of a crime, that crime must be filed. This overruled the preference of the prosecutor or police. People feared an onslaught of criminal filings.

-Three: Congress created LEAA (Law Enforcement Assistance Administration) as an arm of the US DOJ, Mainly LEAA innovation was focused on police programs but they wanted it to expand beyond simply providing more arms to the police. Such programs as mediation and Pre-Trial Release fit into innovative programs.

-Four: Former US Attorney John Palmer taught criminal law at Capital U Law School. He was good friends with City Attorney who was receptive to the idea of mediation using law students (such as Kim Kovach and me), 1975.

The Legal System very hesitant about this new concept. Prosecutors allowed the program to start with dog barking cases. Succes!. Then on to neighborhood disputes. More success! Then this expanded to cases in which people knew each other. Then stranger cases including Ohio State University fraternities involving fights, destruction of property, often in restaurant and bars.

Each day in 1979, 80 folks arrived to file criminal charges. To some this seems to be a lot but according to the US Bureau of Justice Statistics, 52% of violent victim crimes are never reported; and 64% of property crimes are not reported. There is a wide variety of reasons including lack of trust in the legal system.

Prosecutors began to feel relieved that they did not have to deal with these so called “Junk cases” and actually began mediation advocates.

By the time I left in 1979, 1/2 of all criminal complaints were being referred to mediation.

Evolving Procedure for Scheduling Criminal Cases for Mediation:

-Arraignment Judges: At first, law students would arrive at the courthouse. They would examine the complaints and if they thought they were mediatable, they would insert a note to the Arraignment Judge to refer. By mediatable, they were usually looking for relationship disputes such as landlord/tenant or neighbors. Most judges did, but this was a bit late in the game since the person had already been charged and most likely arrested. This made mediation resolution

Challenging equaling about 30%.

-Prosecutor referral. The procedure then evolved to referring cases to mediation when they arrived at the prosecutor’s office, often before the case had been filed and people arrested. Mediation resolution became easier.

-Police referral: Police were then educated about mediation and were given “Mediation tickets.” In this way, when the police were called, they would give mediation tickets which were unenforceable but usually complied with.

-Community/Citizen Referral: Eventually, the citizens and communities were educated about mediation. So based on this education, citizens when encountering a situation would directly call mediation instead of calling the police or prosecutor. Mediation resolution became much easier equaling about 90%.

-Evening or Night Mediations: These mediation were scheduled at night for the convenience of the parties and eventually some were even scheduled on the weekends.

-Law Students as Mediators: The novelty of this program was that students were trained in mediation and then they became paid mediators. This made the program quite affordable. So, after the federal grant monies ended, the Columbus, Ohio, City Council easily funded this program.

Lesson: Nip disputes in the bud. Catch at the dispute at the beginning-at the lowest common denominator.

During the 1970’s and the 1980’s this program has been replicated throughout the United States and Western Europe + Australia with the guidance of the US Department of Justice.

WHAT IS THE STATE OF MEDIATION TODAY?

-We don’t need to sell mediation. It is not unusual to hear mediation being mentioned and used on Lifetime and Netflix movies.

-We don’t need to distinguish among medication, meditation and mediation as we did in the beginning.

-There are 400+ community mediation centers receiving criminal court referrals according to NAFCM (National Association for Community Mediation).

-Maryland has best practices for criminal mediation.

But still, most Americans view mediation as common sense for disputes involving OTHERS. They need to be persuaded that mediation is also effective for their disputes.

Remember that saying: What is Old is New Again

During 2020, I referred to criminal mediation while giving a Delaware Superior Court Mediation training. One participant who was a State Attorney had never heard of such but pledged to begin such a program.

Conclusion: Let me conclude by citing a unique study commissioned by the Maryland Judiciary. This study compared the impact of mediation on Criminal Misdemeanor Cases.

-The study found that mediation has a statistically significant impact in reducing the likelihood of judicial action and supervised probation or jail-time. “Mediated cases were five times less likely to result in judicial action, five times less likely to result in jury trial prayed and ten times less likely to result in supervised probation or jail time.”

Further, “Participating in the mediation has a positive and significant impact on participants reporting several months after the intervention that the outcome is working, the issues have been resolved and they are satisfied with this process.”

Thank you.

Addendum: Let me refer to two books and a quote:

Give and Take, Adam Grant describes the successful negotiator as one who is giving, rather than taking. He describes many financial examples.

David Brooks in his newest book: The Second Mountain captures this theme of giving and taking. He describes the first mountain as accumulating information, wealth, professions etc. Then in the broad sphere of life, Brooks describes the “second mountain” of sharing and giving information.

Watch your thoughts; they become words.

Watch your words; they become actions.

Watch your actions; they become habits.

Watch your habits; they become your character.

Watch your character; they become your destiny.” Frank Lawler

**This presentation does not include information on Restorative Justice ofr VSOD (Victim Sensitive Offender Dialog) or VORP (Victim Offender Restoration Programs.

**PER ATTORNEY TERRY WHEELER. Columbus, Ohio: The Model Standards of Conduct for Mediators was prepared in 1994 by the American Arbitration Association, the American Bar Association’s Section of Dispute Resolution, and the Association for Conflict Resolution. A joint committee consisting of representatives from the same successor organizations revised the Model Standards in 2005.2 Both the original 1994 version and the 2005 revision have been approved by each participating organization.3 Preamble Mediation is used to resolve a broad range of conflicts within a variety.3

The Association for Conflict Resolution is a merged organization of the Academy of Family Mediators, the Conflict Resolution Education Network and the Society of Professionals in Dispute Resolution (SPIDR). SPIDR was the third participating organization in the development of the 1994 Standards. 2 Reporter’s Notes, which are not part of these Standards and therefore have not been specifically approved by any of the organizations, provide commentary regarding these revisions. 3 The 2005 version to the Model Standards were approved by the American Bar Association’s House of Delegates on August 9, 2005, the Board of the Association of Conflict Resolution on August 22, 2005 and the Executive Committee of the American Arbitration Association on September 8, 2005.


KEYNOTE AT TEXAS DISPUTE RESOLUTION CONFERENCE

Here is the link to your presentation:

Topic: CMT - A Brief National Historical Overview Criminal Cases Being Mediated by Selected Jurisdictions

Start Time : Oct 2, 2020 09:47 AM

Meeting Recording:

Access Passcode: u5+*0.%e


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