The initial answer to the above questions may be “no” and that mediation is a medium that lends itself to civil and family disputes but not criminal matters. However, the perceived boundaries of mediation are frequently pushed back and techniques such as teaching dispute resolution in schools and online mediation that 10 or 15 years ago would have been dismissed out of hand are now accepted even if not used as widely as they should be. Equally at one time it was often considered that family mediation should be confined to disputes arising out of marriage or cohabitation breakups although as one of ASM’s recent blog items demonstrates, it can and should be used to help resolve all sorts of family issues. Why should “crime” and “mediation” necessarily be seen as incompatible.
In an article entitled “Why Innocent People Plead Guilty ” which was initially published in the New York Review of Books and then recently reproduced on Linked In Pulse, a US Judge, Jed S Rakoff, expresses his considerable misgivings about the plea bargaining process that has been used in his country for centuries and in its present format since around the 1860s.
Judge Rakoff highlights statistics that unequivocally demonstrate that the US plea bargaining system accounts for around 97% of all criminal cases in the US. He questions the effectiveness of this system and expresses considerable concern about its validity. In particular he puts forward the view that effectively, many who plead guilty and accept the lower penalties that are offered, are innocent. He goes on to question whether a very significant number of these defendants, some of whom are subsequently incarcerated for quite significant periods of time, should have pleaded guilty in the first place. In questioning both the ethics and legality of this system he notes that there is no input from the judiciary or that all important bedrock of American criminal law, the jury. Ultimately, he questions whether fundamentally, a system in which sentencing policy is effectively determined by prosecutors and political considerations and not the courts contravene the American Constitution.
In calling for reform, Judge Rakoff does not necessarily suggest that the plea-bargaining system should be scrapped altogether and he certainly does not advocate leniency. Rather, in proposing reform he very forcefully suggests that there should be input from both judges and juries. Essentially, he proposes a more judicially led, investigatory type of process that has a very strong mediatory element. It is clear from the article that Judge Rakoff is both measured and insightful and even though he does not identify a specific model, he demonstrates an understanding of what mediation is all about. He takes into account a number of political considerations, considers the practicalities of proposals in some detail and notes that the states of Florida and Connecticut are to some extent at least experimenting with the plea bargain system as it generally operates. Accordingly, I suggest that his views should be given careful consideration in the UK.
Judge Rakoff essentially proposes that at the earliest available opportunity there should be a private meeting involving a magistrate, prosecutor and defence counsel which would be recorded but significantly, would be placed under seal (i.e. kept private in a manner reminiscent of the civil mediation process). The magistrate would have the option of interviewing the defendant but this would also be treated as privileged, hence the right to silence confirmed by the U.S. Constitution’s Fifth Amendment (and quite conceivably the rights protected by Article 6 of the European Convention on Human Rights) being preserved.
For many, this will be seen as quite a radical suggestion and it will not necessarily work in each and every instance. However, as well as delivering very timely justice and conceivably driving down administrative costs, this model encourages full and frank discussion and participation by all concerned. It enables an accused person to have his or her say and if appropriate to demonstrate remorse and offer reparation at an early stage. I also strongly suspect that because it would help to ensure that high standards are maintained, there would be less likelihood of an overworked or perhaps dilatory prosecutor working in a results and statistics driven framework accepting a guilty plea to a lesser charge where an objective third-party might consider it inappropriate to do so.
So, I hear you ask “what have Judge Rakoff’s proposals got to do with the UK?”
There are elements of plea bargaining in the UK criminal Justice system. For example, judges giving “credit” to those who plead guilty “at the first available opportunity”. Perhaps consistent with its American counterpart and practically speaking, it is by no means uncommon in the UK justice criminal system for guilty pleas which may be seen as questionable, to be accepted by the courts without serious comment. Some would say that under the current system a defendant always has the option of putting forward mitigation after entering a guilty plea. However, there is a contrary, and in our view, compelling argument that by that stage in many instances the dye has been cast and that even the most skilled criminal advocate will not be able to counter any adverse initial impressions. Cases can be adjourned for reports but these will not necessarily redress the balance and in any event can lead to unnecessary protracted and costly proceedings.
In reality many UK wrongdoers are guilty of the sometimes very serious crimes they admit to having committed and many of them will very properly be advised to “hold their hands up” at the first available opportunity and plead guilty. In the confidential mediatory type framework that Judge Rakoff proposes UK prosecutors, defendants, victims and judges or magistrates would be able to communicate privately but meaningfully and a judge or magistrate could entertain potentially case solving representations from defendants at the very early pretrial stage. As part of this process antecedents and criminal record histories could be disclosed and taken into account. A few modest, very cost-effective changes in the existing procedural rules would ensure that the relatively minor offences identified above were dealt with much more quickly and in all probability, very significant sums of public money including legal aid money would be saved.
Equally, the implementation of Judge Rakoff’s proposals would make for a more flexible, open minded criminal justice system that would ultimately be better geared to provide the high standards justice and fairness that the European Convention on Human Rights demands and the UK public quite rightly expects. I therefore suggest that UK law makers would benefit from giving Judge Rakoff’s ideas consideration and that the notion of “criminal mediation” should be given some serious thought.
Principal Director of ASM PLUS, civil/commercial, workplace, employment, family and educational mediator and trainer with a judicial/legal background. He has knowledge and expertise in dispute resolution in a wide range of areas and disciplines and mediates online.