Dr. Mark Umbreit is a teaching Professor and the founding Director of the Center for Restorative Justice & Peacemaking at the University of Minnesota School of Social Work. He also serves on the Center for Spirituality and Healing at the University of Minnesota's Academic Health Center, teaching courses on Peacemaking & Spirituality, and Forgiveness & Healing. He is an internationally recognized practitioner with more than 30 years of experience as a mediator, trainer, researcher, and author of six books and more than 130 articles, book chapters, and monographs in the fields of restorative justice, mediation and peacemaking. Dr. Umbreit has also conducted training seminars and lectures throughout the United States, Canada, Belgium, Colombia, Denmark, England, Northern Ireland, the Netherlands, Ireland, Italy, Germany, Norway, Sweden, Japan and China. As a practitioner, he specialized in facilitating a dialogue between family survivors/victims of severe violence and the offender. He has served as a consultant for the U.S. Department of Justice for the past 22 years.
According to Dr.Umbreit, the preparation of the mediation setting shall focus on the victim's own empowerment providing him/her with support, awareness, a set of options and negotiating powers with a view of recovering the ability to govern one's own reactions. A so called Humanistic Mediation is proposed, centred on the parties' communication and their empathic relation with the mediator whose neutral role shall not be meant as avoiding any involvement rather as taking neither side and not being focussed on the outcome itself.
The main aspects characterizing such model are described hereinafter.
1. Victim's security
In order to ensure the victim's security mediation sessions should take place in a place that the victim feels as safe, and hopefully attended also by one or two support persons. Another relevant security factor mainly relies on the credibility of the mediation program that is applied, which could be enhanced by informative letters of introduction and leaflets. Victims may also feel reassured by being informed that the program proposed is not offender oriented.
2. Accurate selection of cases
Each mediation program shall rely on a criteria system to select cases according to, for instance, the type of offence or injury, the offender's age (minor or adult), first offence or re-offending cases. In addition, the mediators' team or the single mediator shall consider whether the selected case is appropriate for the mediation process.
For the mediation to be meaningful, offenders shall be held directly accountable for their behaviour and fully endorse the mediation process on a volunteer basis. When the mediator feels somehow perplexed about setting up a mediation program he might decide to discuss it further with the victim and obtain his/her commitment by providing some information about the offender (upon the latter's consent) where the circumstances so require. Should the offender stay silent or show no repentance the victim may decide freely to go on with the mediation process or withdraw. Moreover, mediators shall necessarily be able to detect whether the parties are ready to enter a mediation, especially by evaluating their ability to present one's own expectations and express one's needs.
3. Scheduling pre-mediation sessions with the offender
Mediators usually meet before with offenders than with victims. Then, if the offender accepted to enter the program the mediator can get in touch with the victim and start to plan a first meeting between them. In fact, should the mediator meet the victim first and obtain his/her consent only to find out later on that the offender is unwilling to participate in the mediation this might cause the victim to feel re-victimized because his/her broken expectations of a prompt settlement. However, in case getting in touch with the offender first would delay the commencement of the sessions, the mediator can always explain the situation to the victim and ask him/her to patiently wait for the offender's voluntary adhesion to the program.
4. The offender's choice
As stated above it is essential that the offender be not coerced into the mediation process. Even when pressed by the justice system to enter a program the offender is always free to refuse. Should the latter be forced to accept, this could turn out as an unsuccessful or even dangerous process for the victim: the offender's actual unwillingness could reveal his/her insincerity, thus representing an additional offence for the victim.
5. The victim's options
Victims of an offence often feel additionally vulnerable and impaired. This feeling is further increased by the victim's being traditionally taken on the sidelines of trials - with little opportunity of narrating one's own experience, determining the consequences of the damages and/or express one's needs. Conversely, the range of choices and options available to the victim in a mediation process might help in nurturing an empowerment process. The mediator shall provide information and support the victim in taking each decision while being careful not to put any pressure on him/her nor to have many expectations about the victim's decision. The victim shall be given a congruous time to make up his/her mind without strict deadlines. In particular, the following choices shall have to be made:
- participation. The victim shall be free to refuse mediation and feel sure that such decision will be acknowledged and complied with. This liberty of participating or not is essential for the victim's empowerment. Victims shall always be invited to a mediation and advised about such an option but never feel forced into this process. The mediator shall provide accurate information on the mediation program, on previous victim's reactions and their satisfaction with the process; the mediator shall then invite the victim to consider both benefits and disadvantages before entering any mediation. The victim shall be free to consult with a family member, a priest, a legal counsel before taking the final decision. To sum up, it is essential that the victim's adhesion to the mediation program be conditional upon his/her "informed consent";
- support. Another essential option is the possibility for the victim to be supported by other people in his/her choice during the mediation session. The presence of a friend or relative may increase the victim's comfort and reassurance, even if the supporter may play a side role. However, the mediator may also decide to meet directly or to phone the people the victims indicated as their supporters;
- scheduling mediation sessions. The mediation session shall be fixed on a convenient day for the victim who must remain the priority in order to feel at ease, safe, respected and master of the situation. However, one should try not to neglect the needs of the other people involved in the mediation;
- mediation's setting. The mediation setting shall be chosen very accurately. The victim shall be previously informed about the available places (for instance, a private room in a community centre, a public library, a church, an office) and chooses the favourite one. Which is the safest, most neutral, comfortable and convenient setting? Generally, victims tend to chose places they are familiar with such as a house or a place where they feel safe, such as the prison where the offender is detained. The victim shall consider all the pros and cons of specific settings and have the final word;
- seating arrangements. Usually, the parties will be seated in front of each others in order to establish direct eye-contact and facilitate communication. Moreover, the use of a table between them, besides representing a security element for the victim, may help to give the appropriate dignity to the place. Mediators usually seat at the other end of the table, while supporting people seat on the victim's side. This setting, or any other one established with the victim's consent, is usually effective for a successful mediation. Generally, victims tend to seat by the door or rather distant from the offender or they may ask one supporting person to seat on the opposite side to be more visible. Cultural traditions may also suggest more seating arrangements which, at any rate, shall be felt as comfortable for both parties and enhance the dialogue. Above all, the victim shall feel at his/her ease;
- first speaker. The victim shall be offered the possibility of choosing whether to speak first or last as the one who sustained a loss - the juvenile justice penal system has been neglecting the victim's feelings for too long - and has the right to tell the offender what he/she actually experienced and the consequences of the offence. There are victims who prefer not to feel put excessively on the spot and will ask that the offender speak first at the mediation session taking direct responsibility for his/her behaviour. The mediator shall act so to ensure that the experiences of both conflicting parties be attentively and mutually listened to. In particular, the mediator shall make sure that the victim's emotional overload is not compromised by the offender's rash repentance, especially when the latter is a minor child. When choosing speaking turns the mediator shall consider various elements such as the parties' ages, individual needs and communication styles. Once the mediator has decided who shall speak first, such decision shall be discussed with each party separately;
- end of mediation session. A further confirmation of the victim's large discretion in mediation is the faculty of withdrawing from the session virtually at any stage. The victim shall be made aware that the whole mediation process takes place on a complete voluntary basis. Should the mediator realize that the victim does not feel at ease or is unsafe, he/she may decide to interrupt to temporarily or to entirely terminate the mediation session;
- restitution. The victim shall be given the possibility to decide whether the restitution agreed upon actually meets all his/her requests. The victim may additionally ask that the offender enter a community-service project or a rehabilitation program or even write a letter of apology. Moreover, although the restitution agreement results from negotiations between the parties, the victim may request additional compensation, according to the limits provided by law.
6. The mediator's duty towards the victim in the pre-mediation stage
The mediator shall personally meet the victim in a place and at a time the latter feels more convenient. Generally, he/she will suggest to meet the victim directly at the latter's domicile or at another favourite place. The objective of this encounter is to forge a trustworthy relationship by compassionately listening to the victim's narration, providing all the available information and answering any questions, inviting the victim's participation without making him/her feel coerced into mediation. At intake, the mediator shall explicitly ask the victim whether the latter feels like narrating his/her own experience first or being informed in detail about the mediation program.
- Listening. A crucial element is the mediator's ability to support the victim, by attentively and compassionately listening to the narration of his/her experience. As a matter of fact such a skill may offer the victim a great opportunity of finding comfort and being made whole. Attentive listening may also encourage the victim and let him/her understand how paramount is for the mediator too that settlement comes in. In order for the victim to be actually reassured that his/her situation be profoundly understood and shared, the mediator shall summarize the narration every now and then and make short supportive commentaries thereon.
- Providing information and answering questions on the mediation program. The mediator shall provide the victim the most detailed written and verbal information on the program, with particular attention to its objectives, recipients and costs (N.B.: victims shall by no means be charged for their participation in a mediation program);
- The mediator. The mediator shall also inform the parties of his/her previous experience as a practitioner. Providing some personal details may be helpful with a view of building trustworthy relations and may enhance cooperation with the victim;
- The mediation process and its objectives. The victim shall be made aware in detail of the various steps in the mediation process as well as of the specific role of each party and the general objectives it aims at;
- The legislative framework. Most victims wish to learn what actually happened to the offenders as well as to know which consequences might entail on them the decision of entering or withdrawing a mediation process. Each mediator shall be ready to answer such questions, even after the actual process is over;
- The victim's rights. Each victim shall be provided with a written list of the rights granted to all victims in the States where mediation will take place. Such information can be easily traced through the thousands of "system and community-based victim services" available both in any U.S. small towns and cities;
- Available resources. Each mediator shall be ready to virtually meet any requests from the victim and address to the competent personnel, if necessary. Moreover, the mediator shall be able to handle all the available resources and to file the relevant requests to the competent local or national authorities and agencies. Finally, the functioning of local agencies involved is also to be monitored by the mediator who could contact them directly to ensure that the victim's requests be actually granted;
- The offender. Should the victim take into account participating in a mediation, he/she might be interested in learning the offender's personal characteristics. The mediator shall act to obtain the offender's consent before disseminating such information;
- Benefit-cost analysis and support to the victims in selecting the best option. Upon providing detailed information about the victim-offender mediation the mediator shall ensure that the victim has carefully taken into account all the risks and benefits related to the mediation process.
7. Mediator's duty to ensure the victim's appropriate coaching
Once the victim has considered participating in the mediation process the mediator shall prepare him/her to go through all the phases in the most comfortable way. Such coaching can take place both at intake and during the following interviews. It is important not to set up the actual victim-offender dialogue until the victim is perfectly prepared. At the same time, the mediator shall be ready to grant the victim's most various requests such as the assistance of an interpreter or any other needs related to physical/mental handicaps.
- Ensuring that the victim's expectations be realistic. Victims may easily develop some unrealistic expectations with regard to the mediation process (i.e. reconciliation with the offender, successful completion of restitution agreements, reaching out of an actual physical/mental well-being). Despite mediation's outcomes often are in the expected direction, successful sessions can not be taken for granted every time. The mediator shall recommend the victim to make realistic expectations and provide him/her all available information on any possible results as well as on the most probable outcome of the mediation process, keeping in mind that any experience differs from any other (as much as any victim), and its results can not be foreseen for sure.
- Assessing losses and needs. Victims may need assistance in identifying the losses resulting from the damages incurred which can be both financial or emotional (security loss, deteriorated relationship with one's own neighbourhood), as well as the relevant needs and requests.
- Considering all the restitution forms available. The mediator shall preliminary discuss and clear up with the victim all kinds of restitution, both financial and not. It is important to do so before starting a mediation dialogue, to allow the victim to clearly identify his/her needs and formulate the most realistic requests during the process. All the victims, especially of severe violence, shall be made aware of the State's restitution schemes as well as of any other form of public restitution under the law.
8. The offender's support.
Each offender shall be entitled to choose support relatives or friends during all the sessions. Such presence can additionally guarantee the solidity of the whole process. Support people can also help the offender to honour undertakings and act as a sort of reminders thereof. Moreover, the ability of providing a comfortable setting for all the parties involved can positively impinge on the whole mediation process, the operation of legal institutions and especially the victim.
9. The mediator's duty towards the offender in the pre-mediation stage
At the referral phase the mediator shall act with a view of building a trustworthy and reliable relationship with the offender. This can be done in a more effective way if the mediator will provide active listening to the offender's narration and will present him/her with the option of a mediation process. Since this phase the mediator shall provide the offender with all information and clear up any doubts. In particular, the offender shall be informed about general characteristics of the mediation program and the mediator's own requisites, as well as about the state of the ongoing process and the offender's rights. The offender may have some specific curiosity on the victim which the mediator will satisfy upon the victim's previous consent. In addition, the mediator shall assist the offender in his/her decision to participate in the mediation process or not. It is essential for each offender to envision risks and benefits related to one's own participation in a mediation dialogue. A well-informed and trustful offender can increase the possibilities of a satisfactory dialogue for both the parties involved.
10. Mediator's duty to ensure the offender's appropriate coaching
Once the offender has considered participating in the mediation process the mediator shall prepare him/her to face any developments in the most comfortable way. The offender might feel ready even before the actual start scheduled. If so, the mediator shall engage him/her in a reflective dialogue about the full impact of the offences and will arrange some encounters with the victim. The mediator can also invite the offender to recall some personal experiences where he/she played the victim and illustrate him/her the current victim's actual situation with a view of making him/her aware of the latter's needs. This is a useful instrument to help the offender to understand the victim's true experiences. Such discussions shall take place with the clear objective to have the offender reflect on a simple concept: having endured some violence can by no means justify the offender's subsequent violent options. To this end, the mediator can ask the offender what he/she would feel like doing on the victim's behalf. It is essential for the mediator to fulfil the offender's requests such as the assistance of an interpreter or any other needs related to physical/mental handicaps.
- Ensuring that the offender's expectations be realistic. Offenders may require to be helped not to develop some unrealistic expectations about the mediation outcome. For instance, one could expect that apologizing would produce some immediate positive impact on the victim or, on the contrary, that all grief resulting from the offence be simply eliminated by the mediation process. The offender's disappointment in case of unfulfilled expectations may resume his/her guilt or aggression and cause the victim to feel re-victimized. At any rate, making amends to the victim is useless unless it is supported by a true repentance.
- Assessing the victim's losses, envisaging restitution and ensuring the offender's fulfilment of his/her obligations. First of all, the mediator shall commit with a view of the offender's truly understanding of the material/emotional damages experienced by the victim. Later on, the mediator shall assess the full impact of the conduct perpetrated and discuss the offender's own restitution proposals, by concretely examining all the available and future resources as well as any personal or community services the offender could provide for the victim. Offenders shall be invited to reflect a lot upon these issues.
11. Using a "victim-sensitive" wording
Mediators shall take much care of the words and expressions they use, especially of those which might contain judgements or raise expectations. If a mediator would address either party by saying "You ought to" this would affect the mediator's "neutrality" and credibility, hence the victim might feel under pressure and lose its temper. If so, the mediator shall reassure the victim and provide him/her with all the information and look after his/her taking the best decision. Professionals and experienced volunteers usually can handle these kinds of circumstances; at any rates, mediators shall always keep in mind their duty to protect both parties' rights of choice. It is important for the mediators to avoid terms such as "forgiveness" or "reconciliation". Once again, such expressions may exercise excessive pressure on the victims. In addition, the mediator should prevent the raising of too unrealistic expectations in the victim. Using words such as "healing" or "restoration" to describe the possible outcome of a mediation process, victims' expectations would inevitably be too optimistic. If the expression "reconciliation" is to be used it is important to be aware that many victims may feel hurt by this word as it implies a previous friendly attitude between them and the offender to resume. Some victims may actually feel like willing to start a reconciliation process but this must be left to their own choice with no pressure from the mediator. This might even occur without such specific orientation by the mediator. At the same time, forgiveness may be spontaneously given through the mediation process; yet, the use of such expression by the mediator could turn out devastating for the victims who could feel guilty for failing to feel forgiving. This could even lead their failing to provide an accurate narration of the full impact of the violence incurred which is a condition for any "healing".
12. Using a Humanistic Mediation model
The mediation session is based on a humanistic approach enhancing the parties' "dialogue" rather than a structured and predefined setting where mediation should take place. (see Attachment: What is Humanistic Mediation?).
- The mediator's standpoint. The mediator shall develop a non-judgmental attitude and orientate his/her sensibility skills and love of truth towards both parties' interests.
- A positive and relaxed atmosphere. The mediator shall be able to make both parties feel comfortable by enhancing the relationship built up in the previous encounters and keeping an informal atmosphere facilitating dialogue and settlement. The mediator shall present a calm, centred manner, without undue guidance.
- Victim-offender dialogue. As the mediation process goes on, the victim and the offender shall be given enough time to interact and confront their respective experiences. Silence shall be honoured. Any attempted pressure or insistence on the opportunity of reaching certain objectives may distract the parties from the actual benefits resulting from dialogue and mutual listening.
- Ground rules. At every intake with either party and at the first mediation session the mediator shall give some ground rules for the whole process, with a view of building the most comfortable setting for both parties, encouraging a mutual respectful exchange of impressions and enhancing each participant's resources. Each party shall be given the opportunity to talk without being interrupted. The mediator shall look over the proper operation of the dialogue.
- The participants' impressions. The mediator shall carefully consider the parties' conduct, watching all cues, anticipating any emerging feelings, asking the parties their own impressions and suggesting separate interviews, if necessary. To collect information in a more efficient way the mediator shall talk separately with either party both before and after each session.
- Additional sessions. The mediator shall propose additional sessions. In fact, some participants in the mediation could find useful to attend further encounters to pursue the dialogue, submit new issues, feelings or questions or to discuss further details of the restitution or to ensure that the offender's undertakings are actually being fulfilled.
13. Mediation debriefing
It is essential for the mediator to monitor the offender's compliance with the undertakings and the actual fulfilment of all the issues raised during the mediation process. The guarantees the mediator can provide to this respect are essential both for the victim and for the offender.
- Completion of the agreement. Any agreement reached at the end of a mediation session shall be considered with the utmost attention. The mediator shall also make regular checks with the offender to reaffirm his/her obligations and tackle any hurdles in the relevant fulfilment.
- Notifying the victim of the terms of the agreements. The victim is entitled to be promptly notified of any agreement made as well as of any new aspects requiring to amend the original agreement.
- Scheduling new encounters, if necessary. Should either party request a new encounter, the mediator has the duty to contact all the participants and agree upon a new date.
- Phone contacts with both parties. The mediator shall regularly keep in touch with both parties for a certain time after each mediation session, both in case an agreement was reached or not. Even a very rapid check is enough. The mediator can also act as a source for information. Even when no mediation actually took place, the mediator or the victims' supporters may keep phone contacts for up to six months. Some mediators reported that asking the victims to submit monthly written reports can be a more efficient strategy compared to simple phone contacts.
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