Degree of Harm and Time Passed are Key Factors for Participation in Victim-Offender Mediation

Sven Zebel, University of Twente
Wendy Schreurs, University of Twente
Elze G. Ufkes, University of Twente

Restorative justice policies and programs aimed at facilitating victim–offender mediation (VOM) are part of many criminal justice systems around the world. Given its voluntary nature and potential for positive outcomes, the appropriateness and feasibility of VOM after serious offenses is subject to debate in the literature. In light of this discussion, this study first aimed to unravel the prevalence of serious offenses in cases registered for VOM and examined whether crime seriousness predicts whether mediated contact is reached between victims and offenders. Second, it tested the hypothesis that victims of increasingly serious, harmful crimes are more willing to participate when more time has elapsed since the offense—in contrast to victims of less serious, harmful crimes. We analyzed 199 cases registered for VOM in the Netherlands and coded the perceived wrongfulness, harmfulness, and average duration of incarceration of an offense as 3 distinct indicators of crime seriousness in these cases. The findings revealed that cases registered for VOM (a) are, in terms of the incarceration duration, on average more serious than all offenses in the population, and (b) resulted in mediated contact (or not) independently of the 3 seriousness indicators. In addition, empirical support was found for the hypothesis that victims’ willingness to participate in VOM increased over time after more harmful offenses, whereas it decreased when offenses inflicted less harm. These findings suggest that when VOM programs operate irrespectively of the time elapsed after crime, mediated contact between parties may be as likely after minor and serious offenses.

crime seriousness, participation, restorative justice, time elapsed, victim–offender mediation

“Criminal justice systems around the world have adopted restorative policies and programs that offer victims, offenders and communities the opportunity to repair (im)material damage through voluntary forms of contact, under the supervision of trained mediators (e.g., victim– offender mediation (VOM) or conferencing…)” (p. 385).

“[B]eneficial outcomes are typically observed among victims and offenders who agreed to participate to begin with, as voluntary participation is a key feature of VOM and conferencing (Sherman et al., 2015; Umbreit et al., 2004). Given this voluntariness and potential for positive outcomes, a debate exists in the literature about whether VOM and conferencing are appropriate and feasible after minor as well as serious offenses […] Notably, victims of serious offenses—who experience high levels of suffering—are often thought to be unlikely to engage in mediated contact with offenders, certainly shortly after such offenses (e.g., Lens, Pemberton, & Bogaerts, 2013; Winkel, 2007). An important question therefore is whether and how crime seriousness affects willingness to participate in VOM” (p. 386).

“[T]he current article first aims to develop a reliable method to assess the seriousness of offenses handled in VOM. Second, the goal is to establish the prevalence of serious offenses in cases that are registered for VOM and to examine whether crime seriousness predicts if mediated contact is reached after registration. Third, we investigate whether victims’ willingness to participate is dependent on the seriousness of the offense involved and the time elapsed since the offense. Achieving these goals will help to better understand which (and when) victims and offenders are likely to participate in VOM and thus, subsequently, may experience the beneficial outcomes reported in the literature” (p. 386).

“[W]e hypothesized that victims’ willingness to opt for and engage in mediated contact with the offender depends on two factors: the level of seriousness of, and the time elapsed after, an offense. Specifically, whereas for victims of less serious, harmful offenses the willingness to participate in VOM will decrease over time, we predict that for victims of more serious, harmful offenses (that inflicted high levels of suffering) the willingness to participate will increase over time after the offense—when retributive needs and concerns about revictimization may have weakened. We thus predict an interaction effect between the level of harm inflicted by the offense and the time elapsed on victims’ willingness to participate” (p. 386).

“The present study thus first aimed to construct three indicators of the seriousness of offenses in VOM cases: population-based, average incarceration scores for an offense in each mediation case, and the perceived wrongfulness and harmfulness of the offense in each mediation case. Because the average incarceration scores for all offenses in the national population were also available in this study, the second goal was to map the seriousness of offenses in the VOM cases by comparing the incarceration scores for these offenses with the incarceration scores of all offenses in the national population. In addition, based on all three indicators of crime seriousness, we investigated whether there was a relation between crime seriousness and the type of mediation parties chose for. Finally, we tested the hypothesis that for victims of less serious, harmful offenses the willingness to participate in VOM decreased over time, whereas for victims of more serious, harmful offenses this willingness increased over time after the offense” (p. 388).

“The incarceration duration scores correlated in a modestly positive and significant manner with the ratings of wrongfulness and harmfulness in the mediation cases. This indicates that larger incarceration seriousness scores for offenses in mediation cases were significantly associated with greater perceived wrongfulness of these offenses and more (physical and emotional) harm inflicted on victims” (p. 390).

“[T]he perceived wrongfulness and perceived harmfulness correlated in a modestly positive and significant manner with the time elapsed since the offense at registration: VOM cases that were registered after more time had elapsed thus contained offenses which were perceived to be more wrongful and harmful” (p. 390).

“[O]n average, the offenses for which victims or offenders want to initiate VOM are more serious in terms of the incarceration imposed than the offenses in this population of first offenders” (p. 394).

“[T]he three indicators of crime seriousness in the sampled VOM cases did not predict if and what kind of mediated contact emerged. […] The way in which VOM is organized may play a critical role here: the program is supplemental to the court process and is thus not a formal part of the criminal prosecution of offenders” (p. 394).

“Thus, the current research suggests that the VOM program examined here accommodates mediated contact between victims and offenders of various offenses, which on average are more serious (in terms of incarceration) than offenses in the national population. We expect that this (and the other) finding(s) reported here also hold for other, existing VOM programs around the world that have a similar set-up, are dialogue-driven, supplemental to the court process and take VOM cases both before and (long) after sentencing just as in the VOM program in this study” (p. 395).

“[T]he findings of this study supported the hypothesis that victims of more serious, harmful offenses are more willing to engage in mediated contact with the offender after a greater time lapse, whereas the reverse holds for victims of less serious, harmful offenses. Importantly, this pattern held for victims who initiated VOM themselves, as well as among victims who were approached for VOM because of the offender’s initiative. The observation that solely perceived harmfulness (and not wrongfulness and incarceration duration of the offenses) predicted victims’ willingness to participate over time, in our view clearly points to the important role of (depleted) psychological resources in explaining why victims are less likely to initiate and engage in mediated contact shortly (rather than longer) after harmful offenses” (p. 395)

“The current findings suggest that to the extent that specific programs are confined to offering VOM relatively early at the presentence stage (as a formal part of the criminal prosecution), this may pose an impediment for establishing mediated contact in (very) serious cases in which victims experience high levels of harm. Conversely, VOM programs operating at later, postsentence stages only may be associated with lower levels of contact for offenses that inflicted relatively low levels of harm among victims: They may consider the offense too long ago and/or too trivial at that stage to participate” (p. 395).

“[T]he current findings suggest that insight into the degree of harm that victims suffered and the time elapsed since the offense are important to understand and predict when victims might be more or less likely to participate in VOM. Merely assessing the offense type or category in this respect is not likely to be informative […]” (p. 395).

“[P]rofessionals working in the area of victim–offender mediation may assess the degree of (material and immaterial) harm experienced; for example, based on the available information in a case file (as in the current study) and/or in conversations with the victim itself during victim support activities or during the preparatory phase of mediation. Together with knowledge about the time elapsed since the offense, professionals may then be in an improved position to accommodate and facilitate victims’ needs and desires regarding contact with the offender(s)” (p. 396).

“The VOM program is supplemental to the court process: VOM can be initiated before or after the court trial and is explicitly not intended to influence or replace the court process. Thus, detailed information about mediated contact that took place before a trial can be sent to the judiciary, but only if both parties explicitly agree to do so” (p. 387).

“Importantly, both victims and offenders can initiate VOM in this program; organizations working with victims (e.g., the national victim support agency) and offenders (e.g., youth services, probation organizations, or penitentiaries) inform parties about this possibility and refer victims and offenders to the agency if they are willing. Mediators follow what Umbreit et al. (2004) label a humanistic model of mediation (p. 280): Their primary role is to facilitate dialogue and aid both parties, using a nondirective style and without taking sides. They follow a standard procedure in establishing (initial) contact with both parties to examine the possibility and feasibility of VOM (irrespective of offense type and seriousness; van Burik et al., 2010). […] The main objective of VOM at this agency is to facilitate a voluntary reorientation of both parties toward each other and the crime, which may help them both to recover from the offense” (p. 387).

“Future research may seek to identify empirically the underlying processes that explain why victims of harmful offenses are more likely to engage in VOM longer after the offense; we expect changes in fear and/or anger processes to be key” (p. 395).

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