More mediation could help unclog the justice system

The Free Press editorial Justice system clogged (Oct. 15) was correct -- the justice system is clogged. What's the solution?

How about making greater use of a proven, faster process that holds offenders more accountable, gives victims more say and uses far less taxpayer money than the courts?

Victim-offender mediation has resolved hundreds of cases every year that have been diverted from the courts by Crown attorneys. Vandalism, assault, uttering threats, theft, breach of trust and many more charges have been dealt with effectively through a mediation process, without consuming expensive court time.

Cases are most frequently referred to an agency by the Crown prosecutors' office. When a case is received, caseworkers contact the accused and the victim to get background on the case and ask if they are willing to mediate. If not, the case goes back to court.

If the participants are willing, trained volunteer mediators meet with the accused and the victim to help them reach an agreement that in their view (especially the victim's) resolves the case. Resolutions might include an apology, restitution (the accused pays for the damage they've done within a specified period of time), other concrete actions by the accused to demonstrate that they will not reoffend, or volunteer hours to make a positive contribution to the community. Agreements, if reached, must go back to the Crown attorney for approval. Agreements also require the accused to fulfil their specific obligations and to not re-offend for at least a year. Otherwise, their original charges can still go to court.

What's in it for the victim? Crime victims who are comfortable and willing to speak with the accused in a safe mediation environment have far more control over how the case is resolved than they ever do in a court. They can tell the accused the impact the crime had, listen to the accused party's explanations and apologies, suggest things the accused needs to do to make things right and prevent future crimes and then assess whether the agreement means justice has been served or if the case should just go through the courts.

Is it easy on the accused? Ask our mediators and the thousands of accused who have gone through our process. It's rarely easy for an accused to face their victim and prove to them that they understand what they did, that their apology is meaningful, that they will do what they commit to in an agreement, and that they'll never do that again. It's much easier to go before a judge, "get it over with" and never have to face the victim. Let's face it, most crimes are stupid. The (hypothetical) man with road rage who rams somebody's daughter's car is embarrassed to come to mediation, explain to her and her parents that he's not usually like that, he didn't intend to injure her and is sorry she missed three weeks of work or school.

How effective is mediation at preventing future crime? More studies could be done to answer that question definitively, but the studies we have seen at Mediation Services indicate mediation reduces recidivism rates. I am convinced from the hundreds of victim-offender cases I've mediated that this process is better and has prevented a lot of repeat crimes, especially when first-time offenders have had to face their victims.

Does it work for every case? No. Mediation is voluntary. Some victims understandably do not want to participate. Some offenders aren't willing to take responsibility and would rather have the court impose the standard penalties. And some cases are just too serious or complex for mediation. However, a lot more could be referred to mediation, unclogging the courts so all cases get dealt with more quickly and more effectively.

Fortunately, provincial governments have had the foresight to designate some funds for programs that offer mediation. Politicians of all stripes have said they know this process works well. It's time to use this effective and inexpensive solution much more. Safer communities will be the result.

Gord Flaten chairs the Mediation Services board of directors.

Republished from the Winnipeg Free Press print edition October 19, 2012 A13