ADR in the Criminal Justice System

By Delilah van Tol

As we have seen in earlier blog posts, alternative dispute resolution in many fields is considered to be an efficient way of solving a dispute. But how does that work? Does it even work at all in specific areas, like in the criminal landscape?

THE BEGINNING AND ADVANTAGES

The start of ADR in the criminal field can be traced to informal justice programs.[1] More specifically ‘Victim-Offender Mediation’ programs.[2] This is a face to face with the victim and the offender which should be leading to reconciliation and restitution.[3] This is, of course, done by trained and experienced mediators.[4] The start of this program was in the early 1970s located in Canada. The cases that have been treated are small offenses, but also homicide and rape.[5] Following its success,  other places created similar programs rather quickly, for example in the United States, mainly in the large cities. As a result, ADR rapidly developed in the criminal field. These ad-hoc procedures can occur in different stages of the criminal process and can follow a different trajectory from the court ruling or in parallel to it.[6] The aim of these ad-hoc procedures is to give a voice to the victim.[7] A lot of emotions come along with these procedures and people want to be heard when it comes to their case.[8] When a victim faces their offender they get a more dominant position in the case and in their healing process.[9] In addition to these,  ADR is instrumental in cutting down costs,  limiting the length of procedures, and in reaching agreements that benefit all the interested parties.

Moreover, ADR is considered to be the solution for connecting public norms and community relations by utilizing the community as the ultimate consumer.[10] This is because it produces justification and it reframes the relationship between the victim or community and the offender in personal and public terms.[11] The offender has to take moral responsibility when it comes to ADR, whereas in litigation is not always the case. A victim might put a lot of value in the victim taking responsibility for the crime committed.

Last, but not least,  ADR helps the offender rehabilitated into society post-convictions.[12] By tailoring the offender’s punishments to her/his personality, it prevents future crimes and, therefore, alters the offender’s behavior and attitude towards public norms.[13]

However,  ADR is not a panacea in the criminal arena. In next week’s blog post we will discuss the risks and disadvantages of using ADR in the criminal field…

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[1] Lieberman & Henry, supra note 3, at 424–25.

[2] Mark William Bakker, Repairing the Breach and Reconciling the Discordant: Mediation in

the Criminal Justice System, 72 N.C. L. REV. 1479, 1483 (1994).

[3] Bakker, supra note 12, at 1483.

[4] Ibid.

[5] Ibid. 1485

[6] LEWIS & MCCRIMMON, supra note 2, at 5. Bruce P. Archibald, Let My People Go: Human Capital Investment and Community Capacity Building via Meta/Regulation in a Deliberative Democracy−A Modest Contribution for Criminal Law and Restorative Justice, 16 CARDOZO J. INT’L & COMP. L. 1, 53 (2008), Teresa W. Carns, Michael G. Hotchkin, & Elaine M. Andrews, Therapeutic Justice in Alaska’s Courts, 19 ALASKA L. REV. 1, 5–7 (2002). Carns, Hotchkin, & Andrews, supra, at 8.

[7] Bakker, supra note 12, at 1488.

[8] Ibid.

[9] Ibid.

[10] HOWARD ZEHR, CHANGING LENSES 186 (1990)

[11] Ibid.

[12] ZEHR, supra note 111, at 200

[13] SHICHOR, supra note 109, at 44.