OCTOBER 30, 2019
INADR
  Mediation in Criminal Matters
Richard E. Custin is a mediator, attorney, and a Clinical Professor of Business Law & Ethics, University of San Diego He is also a Board Member of INADR
We typically view mediation involving civil cases that would
ordinarily include a tort claim, a contract dispute, or a
disagreement between private parties. There is ample
evidence that mediation can also play an essential facilitative role in some criminal matters.
Most of us have heard of or even participated in the process of restorative justice. Restorative justice can involve an attractive alternative to the traditional criminal justice system by offffering a method of reconciliation and true rehabilitation. The State Justice Institute of the Maryland Judiciary issued a report in 2016 titled, Impact of Mediation on Criminal Misdemeanor Cases.[1] In a comprehensive study of a Maryland State program that referred select misdemeanor criminal cases to mediation the researchers found that "a case that is not mediated is fifive times more likely to result in judicial action, fifive times more likely to result in jury trial, and ten times more likely to result in supervised probation or jail time." Most importantly, "cases that were not mediated were almost fifive times more likely to return to criminal court in the subsequent 12 months". Therefore, mediation
was found to be effffective in select misdemeanor criminal cases by avoiding the necessity of judicial action and by reducing troubling rates of recidivism.
“I doubt we have heard the last word on mediation in criminal law.”
The process of criminal court mediation
programs varies signifificantly from state to
state. Referral sources may include a local court, the state attorney, a police offiffifficer, the judge, or social service agencies. A few states allow the referral of felony cases to mediation while most involve misdemeanors. Some states specififically disallow the referral of domestic violence cases. Mediators in select state programs can be community trained. Other states require specifific court training or appointment by a judge or other court administrator. It is interesting to note that victims or "complaining witnesses" are permitted as participants in some states, but not all. Outcomes in criminal court mediation programs vary from plea bargaining, jail time to no prosecution. For an excellent state by state comparison of criminal court mediation programs in ten states, see: Hoerres, Teresa, "Analysis of the Effiffifficacy of Criminal Court Mediation as a Tool of Restorative Justice" (2014).[2]
The mediation of criminal cases is not without critics. It has been argued that this system of mediation may disserve the interests of victims, the State, and even offffenders.[3]
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