Practicing neutrality : balancing impartiality and equidistance in victim-offender mediation

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Practicing Neutrality

Balancing Impartiality and Equidistance in Victim-Offender

Mediation

Name: Sarah van Veller

Student ID: 10580492

Supervisor: David Laws Second reader: Benno Netelenbos

Date: 29 June 2018

Program: MSc. Conflict Resolution and Governance University: University of Amsterdam

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2 Acknowledgements

This research would not have been possible without the collaboration of the mediators that I have interviewed. I am grateful for the stories they shared with me, the interesting insights they provided and the passion they conveyed while talking about their practice. It has made me even more enthusiastic about the work they are doing. Furthermore, I am indebted to my supervisor, David Laws, who has put in a lot of effort to try and help me get the most out of this thesis. Not only has he challenged my thinking during the process of writing this thesis as a supervisor, but also throughout the whole master as a director of the program. For that I am very grateful. My gratitude also goes to Benno Netelenbos, for being my second reader. Lastly, I could not have gone through this process without the help and support of my friends and family. Particularly, I am very thankful to my father, Hans van Veller, and my mother, Lea Konings, whose unconditional support and stimulation to always think critically have brought me where I am today. I would also like to thank Paco Mens and Mariam Hussain for proofreading my thesis and giving constructive feedback.

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1. A Contested Concept

She changed, she changed from fighting to thinking; I really have heard this man who ran on and on and, but therefore I now understand that whatever I do I will never get what I want, so I have to choose to either accept that and maybe become friends or, I do not know, but wanting this to stop is not going to happen. And I think that is an important aspect of mediation. (Stijn)1

Within the field of conflict resolution, mediation is a practice that has significantly gained importance in the past decennia (Umbreit & Greenwood, 2000; Izumi, 2017). Today, it is widely acknowledged that mediation can help to manage conflicts and contribute to its resolution (Bercovitch, 1996). The more complicated issues become and the deeper the conflicts, the more mediation becomes necessary (Benjamin, 1990). It is used in more and more different contexts and has taken many different forms, resulting in varying definitions of what mediation entails. As Riskin (1996) argues: “[I]n real mediations, goals and methods vary so greatly that generalization becomes misleading. This is not simply because mediators practice differently according to different types of dispute or transaction; even within a particular field, one finds a wide range of practices” (p. 11). Core aspects that do seem to be agreed upon by most of the academics and practitioners are that mediation is a ‘voluntary’ negotiation process, facilitated by a ‘neutral’ third party2 (Exon, 2007; Bercovitch, 1996).

Within mediation the concept of neutrality remains contested and ambiguous, however; debates within different fields of mediation have probed what neutrality entails and to what extent a mediator can actually be neutral (Exon, 2007; Izumi, 2010, 2017; Mayer, 2011; Mulcahy, 2001; Rifkin, Millen & Cobb, 1991). Neutrality is not only debated by scholars but is also explored in action by practitioners who give it tangible shapein their work. One subfield in which neutrality is both centric and problematic is victim-offender mediation (VOM): a ‘voluntary’ process where a ‘neutral’ mediator facilitates a negotiation between the victim and offender of a crime to help find a solution to their conflict (Choi, Green & Kapp, 2010; Zehr, 2004).

1_{Quote from an interview conducted for this research.}

2_{See Exon (2007) for an extensive research on the Ethical Standards of Conduct regarding mediator neutrality,}

which states that all Standards examined require mediator neutrality (p. 583). In her article she uses the term impartiality, which fits in the umbrella term ‘neutrality’ used in this thesis and explained further in the theory chapter.

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7 VOM is part of restorative justice, a concept that began to develop in the 1970s in response to dissatisfaction with traditional (Western) criminal justice practice that focuses on emphasizing disciplinary punishment on the offender by the state (Choi et al., 2010, p. 858). Critics of this system have argued that parties affected by the criminal act are not sufficiently involved in the process of dealing with the harm caused by criminal offences and finding justice (Choi et al., 2010; Zehr, 2004). Restorative justice develops the insight that crime is not only a violation of the law, but also of interpersonal relationships (idem). “[Crime] is a profound expression of disrespect for the victims as persons, which signifies a denial of victims’ personhood and failure to value them as individuals” (idem, p. 859). In other words, through crime, victims are deprived of a sense of personal power leaving them with a need of re-empowerment, a sense of new order and an understanding of why the crime happened (Achilles & Zehr, 2001; Zernova, 2007). Furthermore, as crime is seen as a violation of people and relations, such violation creates obligations for the offender “to put right the wrongs” (Zehr, 2004, p. 307).

A restorative justice approach stresses the active involvement of the victim, offender and community in the governance of the justice process to restore the interpersonal relationships that have been disrupted. Howard Zehr, a leading academic in the field, defines restorative justice as “a process to involve, to the extent possible, those who have a stake in a specific offence and to collectively identify and address harms, needs, and obligations, in order to heal and put things as right as possible” (2002, cited in Zehr, 2004, p. 307). This process is not only about repairing material harm, but also about psychological and relational harm (Zanorva, 2007, p. 44). Zehr (2004) argues that “with its focus on interpersonal relationships, human needs, and collaborative, problem-solving processes, restorative justice might be viewed as a peacemaking or conflict-resolution approach to [criminal] justice” (p. 308). Of the various encounter models that are part of the restorative justice approach, VOM is one of the most prominent models (Choi & Gilbert, 2010). As such, criminal justice has become another context in which mediation is now used to contribute to “building a peaceful and just world” (Zehr, 2004, p. 313).

Within VOM both scholars and practitioners have emphasized neutrality as essential element of the practice (Choi & Gilbert, 2010; Choi et al., 2010; Presser & Hammilton, 2006; Wemmers & Cyr, 2006; Zenorva, 2007). Despite the acknowledgement it has received (Choi et al., 2010), relatively little has been written in recent years about how neutrality is or should be practiced within VOM. This neglects the ways in which neutrality is especially challenging within VOM, as “the issues related to the conflict are far clearer in the context of victim offender

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8 mediation. There is a clear ‘victim’ and a perpetrator who has admitted his or her guilt” (Umbreit, 1988, p. 103). In other words, although neutrality is seen as an essential element of VOM, the context of the mediation is not neutral. As Zehr (2004) argues, in contrast to civil mediation, it takes place in a structure where the wrongdoing is named and “even where there may be some shared blame, restorative processes often begin with a clearly identified wrong and ‘offender’ (p. 312). Zernova (2007) also argues that by the time a case enters a mediation process, a significant part of the definitional work is already established through labels. “What constitutes ‘crime’, who is the ‘victim’ and who is the ‘offender’ is a given case, or the very fact that there is a ‘victim’ and an ‘offender’ in a particular situation has already been determined within the framework of criminal law” (Zernova, 2007, p. 99). In this way, the process and outcome of VOM are shaped by the criminal justice system. “It is guided by the moral compass of the [criminal justice] system” (idem, p. 100).

The goal of this thesis is to examine how mediators deal with neutrality within such a context. The research question that I will answer is: How do mediators deal with and relate the

different elements of neutrality within victim-offender mediation? Answering this will help

provide a better understanding of the practice of neutrality within victim-offender mediation. Furthermore, by looking at the concept of neutrality through the lens of restorative justice, this can contribute to insights in the concept and practice of neutrality within the broader field of mediation. The next chapter will set the theoretical framework on which this thesis is based. Chapter 3 discusses the research design that is used for this research and the limitations. Chapter 4 describes the institutional context in which the mediators that are part of this research work. Chapter 5 analyzes the findings and Chapter 6 subsequently summarizes the findings and links them to the theory.

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2. The Theoretical Debates about Neutrality and its Role in VOM

This chapter starts with the dilemma of neutrality in mediation practice from a theoretical perspective. First, it describes the debates and the various ways in which neutrality is defined in the broader field of mediation. Here, insights will also be given in the way that different ideas about neutrality relate to different mediation styles. Second, after providing a more detailed account of what VOM entails and the way in which it differs from mediation in general, the debates and definitions are connected to neutrality within VOM specifically. Subsequently, theory will be used to articulate questions which will help make sense of the empirical data.

2.1. Different Roles and Meanings of Neutrality

The reason why neutrality is seen as such an important aspect of mediation at a practical level is because mediators see it as a key to sustaining their legitimacy. Tyler (2006) defines legitimacy as “the belief that authorities, institutions, and social arrangements are appropriate, proper and just” (p. 376). He argues that legitimacy is based on perceived ‘fairness of procedures’ and states that “when third parties make their decisions in ways that people view as fair, people are more willing to accept them” (Tyler, 2003, p. 293). In other words, legitimacy promotes acceptance of decisions made by a third party.

For parties to voluntarily accept mediation and its outcome, it is important that they view the mediator and the mediation process as legitimate. As such, scholars argue that within mediation, neutrality as a character of the mediator is viewed as necessary to ensure a fair and just process (Astor, 2007; Bercovitch & Allison, 1996; Exon, 2007; Izumi, 2010; Rifkin, et al., 1991; Siniver, 2006). Izumi (2010), argues that “other essential values, such as confidentiality and party self-determination, rest upon the parties’ perception of the mediator as an unaligned participant” (p. 76). Parties must feel comfortable with sharing information and as such need to be assured that the information they share is not used to benefit the interests of the other party. In addition, legitimacy of the mediation process is based on the perception that parties have control over the decisions being made and outcome of the process (idem). Moreover, Izumi adds that “the parties’ expectation of mediator neutrality is the basis upon which a relationship of trust is built” (idem). Other scholars also argue that perceived neutrality of the mediator is the basis of a relationship of trust (Bercovitch & Allison, 1996; Exon, 2007; Umbreit, 1997). As Benjamin (1999) argues, parties will not participate in mediation unless they feel safe, which means believing that “they will not be left at a disadvantage”.

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10 Within mediation neutrality is clearly viewed as important, however, the practice and meaning of neutrality within mediation remains open to debate. As Mayer (2011) argues regarding neutrality; “[…] when we discuss how to conceptualize neutrality, when we consider how thorough our commitment to neutrality can be, and when we debate whether such a commitment is even appropriate, we are often confused, inconsistent and divided” (p. 859). Rifkin et al. (1991) argue that the absence of a clear conceptualization of neutrality is partly due to the fact that neutrality within mediation functions as a folk concept; “there are tacit understandings of what it means and how it works in practice” (p. 151). Drawing on their own research and mediation literature, they argue that neutrality is traditionally understood in two ways; ‘neutrality-as-impartiality’ and ‘neutrality-as-equidistance’ (idem, p. 152). The former entails that the mediator should mediate without bias that would result in favoring one party over the other. During their interaction with parties, the mediator should either dismiss or separate strong feelings, values and agendas from the mediation process. The latter entails giving each party an equal opportunity to present their interests “by which partiality is used to create symmetry” between parties (idem, p. 152). In other words, through interventions the mediator addresses the power imbalance and levels the playing field between parties to make sure interests are represented evenly in the outcome.

For Rifkin et al. (1991), both equidistance and impartiality are required for neutrality (p. 153). They argue, however, that these two aspects of neutrality contradict one another; moves to address equidistance can or will be perceived by parties as undermining impartiality. As such, practitioners are confronted with a dilemma. As Cobb and Rifkin (1991) summarize it:

To practice equidistance mediators must balance power by representing interests; yet if they do so, the existing rhetoric of neutrality defines these actions as ‘biased’. And if mediators do not practice bias as [international] ethical code suggests, then they unwittingly contribute to maintaining power imbalances in the session. (p. 45)

Moore (1994, cited in Mulcahy, 2001) recognizes the same dilemma:

The mediator, because of his or her commitment to neutrality or impartiality, is ethically barred from direct advocacy for the weaker party, yet also ethically obligated to assist the parties reaching an acceptable agreement. (p. 510)

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2.1.1. Different Ideas, Different Approaches

This dilemma relates to the debate whether mediators should ensure a fair process, or a fair outcome and the style mediators use in this regard. In other words, should they interact with parties equally and remain impartial at all time, risking an outcome that might reproduce existing inequalities between parties and perpetuate injustice, or are they allowed to facilitate parties in different ways to deal with power relationships and ensure a fair outcome (Exon, 2007; Gunning, 2004; Izumi, 2010; Mulcahy, 2001). The exchange between Josh Stulberg and Larry Susskind is seen as prominent within this debate. According to Susskind mediators are responsible for ensuring a fair and stable outcome of mediation (Mayer, 2011). In accordance with this argument, Gray (2005) argues that power relations should be considered to the extent that “mediation becomes unjust if the issues it considers and the results it achieves stray too far from the issues and results that it would obtain in the adjudicatory system” as a result of power imbalances (p. 207).

Susskind argues that to provide such a fair and stable outcome, mediators should use an activist strategy and actively intervene in the mediator process if necessary (Forrester & Stitzel, 1989; Stulberg, 1981). In other words, mediators should take a directive approach to address power imbalance and establish equidistance. Through intervention they can direct parties to a fair outcome by either offering substantive or procedural advise and suggesting ways to solve the conflict, or by influencing the process (e.g. deciding when and how long parties get to talk and which options for an agreement get the most attention) (Exon, 2007; Laflin, 2000; Izumi, 2010). The mediator then derives legitimacy by his or her responsibility to assist parties in developing a fair and stable agreement (Susskind & Ozawa, 1983, p. 268).

Stulberg (1981), on the other hand, argues that attempting to ensure a fair outcome undermines the mediator’s commitment to neutrality, and, as such, the ability to be effective as it jeopardizes the bond of trust. He states that a mediator must be neutral to the content and

outcome. In other words, he or she must be impartial. Colosi also takes the side of Stulberg in arguing that by taking an activist role, mediators lose the trust that is vital to carry out their job (Forrester & Stitzel, 1989). In general, scholars argue that the more directive a mediator is in his or her style, the more likely the neutrality-as-impartiality line gets crossed. As Riskin (1996) argues: “the greater the mediator’s direct influence on the substantive outcome of the mediation, the greater the risk that one side will suffer as a result of the mediator’s bias” (p. 48).

As such, Stulberg states that the mediator’s role is to facilitate effective communication among parties. This then entails a facilitative approach. This approach assumes that parties are

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12 better capable in understanding their own situation than the mediator. Therefore, the mediator should improve communication to help them develop acceptable proposals to resolve the dispute (Kovach & Love; Riskin, 1996). Empowerment and self-determination of the parties are therefore seen as central to the facilitative mediation process (Exon, 2007; Riskin, 1996). Here, according to Exon (2007) self-determination entails “that the parties dominate the dispute resolution process by creating options and solutions, controlling the substantive discussion and deciding on a final settlement” (p. 608). Gunning (2008) identifies “the chance to speak for oneself, and to, or with the [other] party” as “key aspect of self-determination” (p. 89). In other words, with this approach the mediator is a “facilitator of party-initiated outcomes” (Izumi, 2010, p. 83). The outcome of the mediation process is then legitimated by the promise of procedural fairness (Forrester & Stitzel, 1989, p. 255).

It can thus be argued that a way of coping with the practical tension of neutrality is to address neutrality in a different way. Mediators might be focused more on ensuring a fair and balanced process and outcome through the establishment of equidistance and use a directive approach. Or, they might be more focused on being impartial; limiting their own influence as much as possible and use a facilitative approach.

2.1.2. The Feasibility of being Impartial

Another question that should be kept in mind with regard to the dilemma between practicing neutrality-as-impartiality or neutrality-as-equidistance, is the extent to which a mediator is able to be impartial. Some scholars are skeptical about the feasibility of being impartial. Firstly, it is argued that mediators will always be biased towards parties (Mayer, 2011). Taylor (1997), for example, states that “there is no such thing as total impartiality, neutrality, or lack of bias when working with people, even though practitioners may strive for such ideals” (p. 220). Izumi (2010) argues that impartiality is especially challenged by ‘implicit or unconscious biases’ of the mediator. Such biases are based on implicit attitudes, prejudices and stereotypes and are “especially problematic because they can produce behavior that diverges from a person avowed and endorsed belief or principles” (Izumi, 2010, p. 92) and can lead to discriminatory behavior. They lead us to automatically “categorize, perceive, interpret the behavior of, remember and interact with people” in a different way despite best intentions (Wang, 2004, cited in Izumi, 2010, p. 107). As such, biases of the mediator can influence the mediation process in subtle ways.

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13 This relates to the argument that mediators participate politically through the narrative aspect within mediation by asking questions and making summaries, based on their own biases and frames (Gray, 2005; Mulcahy, 2001; Cobb & Rifkin, 1991). Frames are the way in which we interpret the world around us. “We use frames to help us make sense of our own and others’ actions. In doing so, we declare some aspects of our experience meaningful while ignoring others” (Gray, 2005, p. 194). As such, mediation is both influenced by frames and creates certain frames. As Cobb and Rifkin (1991) argue; “[mediation] is composed of stories, narratives, that seldom call attention to the fact that they provide an interpretative framework of knowing the world” (p. 60). Mulcahy (2001) also argues that “as each mediator fills words with semantic content they reveal a process which is interpretative and political” (p. 513). According to Cobb and Rifkin (1991) mediators take part in the political process of privileging one disputant’s story over the other within the mediation “by asking questions, and making summaries that contribute to the oppression of one story, shaping the grounds on which the agreement and disagreement can take place” (p. 60). Through inquiring certain types of questions and making summaries, they can “recontextualize important events in the plot” (Cobb & Rifkin, 1991, p. 56). They give mediators the chance to shift the frames of the stories told by the parties.

The way in which the mediation session is structured by the mediator also influences the narrative of the dispute, which story gets legitimized over the other, and who gets access to the process of storytelling (Izumi, 2010; Cobb & Rifkin, 1991; Rifkin et al., 1991). Decisions such as who can talk first, who gets a private session, how much time parties get to speak and when to take a private caucus influence the outcome of the mediation (Izumi, 2010; Rifkin et al., 1991). The party who speaks first, for example, “has the advantage of painting a subjective picture of the circumstances underlying the dispute” (Izumi, 2010, p. 133) and positioning the other party as responsible for the dispute (Cobb, & Rifkin, 1991, p. 57).

Based on the argument that mediators are biased and participate politically in the mediation process, scholars emphasize that mediators need to use a reflective approach that addresses the subjectivity of the mediator (Benjamin, 1990; Mulcahy, 2001; Izumi, 2010, 2017; Rifkin, et al., 1991). As Benjamin (1990) states; “in reflective practice, mediators evaluate not only the issues at hand but their own effect on the problem-solving process” (p.107). Based on the argument that mediators influence the process, he states that traditional assumptions of mediator impartiality should be abandoned. Instead he offers a working definition of impartiality by arguing that “the mediators task is to assume a balanced position between the parties” and make sure both parties are protected (idem, p. 108).

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14 Izumi (2010), on the other hand, argues that mediators should not give up on the goal of impartiality but rather, through a reflective approach, focus on how to be as impartial as possible, even if mediators choose to be more directive. She states that mediators “must be aware of and acknowledge unconscious biases in order to garner the motivation to self-correct” (p. 152). Such awareness could, for example, be created by taking tests that shows a mediator’s implicit biases. Furthermore, mediators should pay attention to the way they structure the mediation sessions (Izumi, 2010). A way of limiting the influence on the structure is to refrain from asking questions, making summaries or reframing before both parties have made their statement (idem, p. 133). In other words, the aspiration of being impartial motivates mediators to be critical of themselves and limit the influences of their biases on the process.

In short, questions are raised about the extent to which it is possible for a mediator to be impartial since people are always biased and often participate politically as a result. Scholars argue that even if pure impartiality is not possible, the aim of impartiality is important because it stimulates mediators to be critical of themselves through a reflective approach and either assume a balanced position between parties or limit the influence of biases as much as possible. In other words, it is not about whether it is possible for mediators to be unbiased but about how they manage their bias in a way that parties do not perceive them as partial.

2.2. Neutrality within VOM

The question, then, becomes how these debates about neutrality take shape within VOM, where there is a clear case of an offender and a victim within the conflict. How are mediators supposed to deal with dilemmas described above within a context where there is already a sharp tension with neutrality? This section describes what VOM entails and how theories on neutrality apply within this specific context.

VOM is defined as a voluntary process which brings the victim and offender together in a dialogue, facilitated by a mediator “to obtain answers, repair harms and make amends to the victim” (Choi et al., 2010, p. 860). The idea is that a “safe and controlled setting” is provided where the victim and offender can both engage in dialogue and negotiate a plan, acceptable to both parties, that addresses the damage caused by the crime (idem). Like mediation in general, the parties directly involved in conflict and harm are enabled to participate in its resolution and the restoration of interpersonal relationships by trying to reach an agreement about a suitable restoration of the crime through which justice can be established (idem, p. 859). Depending on

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15 the program and the legal context in which VOM takes place, this agreement can, for example, relate to what would be an appropriate sentence for the crime.

As already mentioned above, what distinguishes VOM within the broader field of mediation is that it operates within a legal framework in which the identities of victim and offender have already been determined. Instead of entering the mediation process with an initial assumption of shared blame or mutual responsibility for the conflict, these labels indicate that one party is responsible for the harm caused and has an obligation towards the victim and society more generally to put right the wrong he or she has caused (Zehr, 2004; 2008).

Another important difference is that, while the agreement can have impact on the outcome of the criminal proceeding3, parties do not have the final say in what will happen with the case. It is true that the focus of restorative justice is to empower stakeholders in crime by engaging them in finding a proper solution (Zenorva, 2007, p. 77), may it be an agreement about damages that the offender should pay, the amount of community service that the offender should do, or perhaps even the possibility of dismissing the case. In most cases, however, the criminal justice system retains the power to decide over the sentence. If the criminal justice system decides that the sentence agreed upon does not fit within the context of criminal law, they retain the authority to impose a sentence that is thought to better suit the crime committed within this context (Zernova, 2007). As such, the self-determination within VOM can be argued to be inherently limited, as parties have no real authority in deciding on a solution to their conflict.

Moreover, the importance of preventing secondary victimization (also called revictimization4) is often stressed in the theory about restorative justice in general and VOM in particular (Choi & Gilbert, 2010; Wemmers & Cyr, 2005). The risk of secondary victimization within the criminal justice system claimed recognition in the 1980s (Wemmers & Cyr, 2005, pp. 527-528) based on the argument that the criminal justice process can cause psychological harm to the victims involved (Orth, 2002, p. 314). This can be the case when the victim does not feel supported or accepted and as a result experiences a state of helplessness (Laxminayaran, 2014; Wemmers & Cyr, 2005). In the case of VOM, it is argued that secondary victimization can occur when restorative justice is offered, and the victim is reminded of the crime and its consequences in a negative way (Laximinayaran, 2014, p. 50), or when an offender fails to take responsibility for his or her actions during the joint session (Wemmers & Cyr, 2005, p. 540).

3_{The extent to which the agreement can have an impact depends on the legislative context in which VOM takes}

place.

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16 As such, one of the principles of restorative justice, as reflected in international guidelines and legislation5, is that the offender should accept responsibility for his or her actions6 (Laxminayaran, 2014, p. 30). Laxminiyaran argues that “the acceptance of responsibility is also necessary to assist victims in properly dealing with the harm and to keep them from feeling ignored” (idem, pp. 30-31). Thus, with a focus on preventing secondary victimization, the offender must meet certain conditions. More generally, it can be argued that it entails paying special attention to the needs of the victim within the mediation process.

Lastly, scholars point to power imbalances that VOM entails. They argue that the risk of secondary victimization brings the victim in a more vulnerable position within the mediation process (Hudson, 2006; Laxminayaran, 2014; Umbreit, 1988; Wolthuis & Lünneman, 2016). Hudson (2006) asserts, for example, that the discourse within VOM can “reproduce relations of the crime” where the abused is still is still intimidated by the abuser (p. 35). With a focus on domestic violence, Wolthuis and Lünneman (2016) similarly state that the offender might continue patterns of dominance during the mediation session which can leave the victim intimidated and feeling limited in bringing out his or her story (pp. 11-12). As a result, instead of bringing across a clear message that the offender is responsible for the crime, this can raise the suggestion that both parties are responsible for the crime (idem, p. 13).

Some scholars also argue that that VOM entails a power imbalance between the ‘powerless offender and powerful victim’ which can result in an unfair outcome for the offender (e.g. an exaggeration of the offence) (Morris, 2002). As Harris (2004) argues:

a far worse imbalance will emerge with the offender finding himself of herself not only lined up in defense against the state but also against the victims and perhaps some new entity or presence put there to represent the ‘community’. (p. 34)

Brown (1994) likewise asserts that “victims of crime negotiate not only with their own individual bargaining strengths, but also with the threat of enhanced state punishment should the parties fail to reach agreement” (p. 1250). In addition, Brown states:

The fear of state punishment may lead offenders to agree both to mediation in general and to a victim’s demands specifically […] because offenders know that the result of VOM can affect criminal proceedings pending against them, they may believe that if

5_{This is written down both in the United Nations Handbook of Restorative Justice Programmes and the 2012 EU}

Directive (Laximiniyaran, 2014).

6_{Here it is argued that offenders should be informed that accepting responsibility is not the same as accepting}

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17 they refuse to participate their refusal may be held against them within the system. (p.

1264)

As such it can be argued that the self-determination of offenders is limited as they may feel coerced to voluntarily participate and reach an agreement.

Thus, like mediation in general, VOM facilitates the resolution of conflict and the restoration of interpersonal relationships by trying to reach a negotiated agreement about an appropriate restoration of the crime. There are a few characteristics distinguishing VOM from mediation in general. It takes place in a context where the victim and offender are already established, in which parties have limited self-determination, where preventing secondary victimization is of special concern, and which seems susceptible for power imbalances.

2.2.1. Different Approaches within VOM

The way, then, that the mediation process of VOM should take form and, as such, neutrality should or can be practiced with respect to the distinctive features described above is also open to debate. Some scholars underline the importance of facilitating the dialogue process within VOM (Choi & Gilbert, 2010; Umbreit, Coates & Vos, 2004; Zernova, 2007). As Umbreit et al. (2004) argue: “while many other types of mediation are largely settlement driven, victim-offender mediation is primarily dialogue driven” (p. 208). They state that sessions do often result in a signed agreement about a suitable reparation for the crime, but that such an agreement is secondary to the dialogue addressing emotional and informational needs and creating a mutual understanding of the causes and consequences of the crime. Based on the view that restorative justice is about empowerment of the parties involved in the crime, scholars argue that victim-offender mediators should or are expected to use a facilitative approach that addresses the needs of both parties and facilitates empowerment (Choi & Gilbert, 2010; Umbreit, 1988; Umbreit et al., 2004; Zernova, 2007).

Although Umbreit (1988) argues for a facilitative approach within VOM, he also argues that special attention should be payed to the victim. He legitimizes such a partial approach, because a ‘situational imbalance of power’ exists; “one of the individuals has been violated and therefore special attention must be directed toward the victim in order to not be revictimized by the mediation process” (Umbreit, 1988, p. 103). Based on the argument that preventing revictimization is one of the central ethical principle of VOM, he states that attention should be payed to the empowerment of the victim and at not coercing the victim into participating. Furthermore, he makes a valid point that a more directive approach becomes necessary to

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18 ensure a safe process if one of the parties becomes “extremely verbally aggressive and likely to totally intimidate the other party” (idem, p. 96).

Hudson (2006), Wolthuis and Lünneman (2016) likewise underline the importance addressing power imbalances with regard to the risk of secondary victimization. As Hudson (2006) states: “there must be regulatory rules to ensure that discourse is not dominated by any one party and that it does not reproduce power relations of the crime” (p. 35). In this regard, Wolthuis and Lünneman (2016) argue that when power imbalances are addressed in the mediation session and intimidating behavior is prevented, this can contribute to a victim feeling empowered and it can create a safe place for the victim to tell his or her story about what the crime means to him (p. 13). Moreover, it can be made clear that the victim is not responsible for what happened, and the offender can take responsibility for the crime (idem).

Scholars also argue more generally that power imbalances within VOM need to be addressed. Morris (2002), for example, states that “facilitators of restorative justice have a responsibility to create an environment that ensures both victim and offenders can freely participate, by whichever way necessary” (p. 608). “Supporting the less powerful” and “challenging the more powerful” (idem) would then be justified.

Furthermore, Wolthuis and Lünnenman (2016) argue that a directive approach should be used in the sense that mediators should make sure that a clear conformation of norms takes place within the mediation process. It should be made clear that the behavior or the act of the offender is unacceptable and that he or she should take responsibility for his or her deed (idem, p. 22). Zenorva (2007) contradicts this with the argument that by ensuring such norm conformation takes place and by encouraging parties to accept the criminal justice framework, mediators implicitly surrender their impartiality and agree to facilitate a case within a framework where parties are not equal (Zenorva, 2007, note p. 117). They then not only deal with their own bias, but also with the bias of criminal justice system. They encourage parties to accept the criminal justice framework and embrace the identities of offender and victim, making it possible for a case to be processed in line with the criminal justice system. The attitudes of parties are evaluated carefully and if facilitators get the idea that a party is not prepared to adopt a particular self-identity and play the corresponding role, chances are that party is not allowed to take part in a restorative justice encounter (idem, p. 122). “It appears that individuals are ‘empowered’ to participate in the restorative process and developed outcomes as long as their actions and decisions fit with, and promote, the agenda set out by professionals” (Zenorva, 2007, p. 124).

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19 Through multiple private meetings, skillful questioning, use of encouragement and

praise, re-phrasing statements, re-focusing discussions, invoking feelings of guilt and empathy and using other psychological tools, conference organizers and facilitators subtly pressurized offenders to embrace identities of repentant selves, willing to admit their past mistakes, make amends and become law-abiding citizens. (p. 112)

In this way they contribute to the goal of the criminal justice system of constructing a certain type of individual selves. In other words, she argues that through a directive approach, mediators facilitate the accomplishment of the “wider political aims” of the context in which it takes place (Zenorva, 2007, p. 138).

Within the field of VOM, again, contrasting approaches with regard to neutrality are presented. On the one hand, some scholars argue for a facilitative approach that is focused on the empowerment of parties and limiting the judgment of the mediator. One the other hand it is recognized and argued that the context of VOM entails power imbalances between parties that need to be addressed through a more directive approach in order to ensure a fair outcome. Zernova argues, that with a directive approach, mediators do not only risk the influence of their own bias, but also the bias of the unequal context in which VOM takes place.

As is described in this chapter, there is no theoretical consistency in how neutrality should be practiced by mediators. While people who work in the field and who study it cannot seem to get away from neutrality, they can also not agree on it. Given the dilemmas and debates described in this chapter, mainly between impartiality and equidistance, the question then becomes how mediators deal with neutrality in the practice of victim-offender mediation. How do mediators themselves experience VOM as different from the broader field of mediation? How do mediators deal with their impartiality within the mediation process? To what extent do they try to establish equidistance? How do they manage the relationship between the two? These are the questions that will be answered within the empirical chapter of this thesis.

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20

3. Research Design

As previously mentioned, Rifkin et al. (1991) argue that the way mediators deal with neutrality in practice is based on a tacit understanding of the concept. Argyris, Putnam and Smith (1985) argue that such a tacit understanding “can be made explicit through reflective inquiry” (p. 78). In other words, by reflecting on action, tacit knowledge can be made explicit as it allows the practitioner to discover “tacit reasoning that lay behind their action” (idem, p. 60). To gain insight in the way neutrality is practiced within VOM, the focus of this research is to look at the concrete practice of mediators and to explore the practical understanding mediators have of the concept of neutrality.

3.1. Research Methods

With a focus on the interpretation that practitioners give of their own work, a qualitative research design was used in which narrative interviews were conducted with mediators of VOM in the Netherlands. Here, the aim was to ask practitioners to reflect on their practical understanding of neutrality in a concrete way. Firstly, to get a sense of the context behind their approach, mediators were asked to describe their background that led to them becoming a mediator in VOM. Secondly, they were asked to give a detailed account of a case in which neutrality come op up in either a challenging or interesting way, and how they handled neutrality within this case. Here, I deliberately left out what I meant by neutrality to see on which elements of neutrality mediators themselves focused. Third, more direct questions were asked about how they deal with specific elements of neutrality. Finally, they were asked to describe how they define neutrality within VOM for themselves.

Through this structure of the interview I aimed to get insight in the extent to which the theories practitioners use to describe their action matches with what they are actually doing, as studies have revealed a discrepancy between these two when it comes to practicing neutrality (Izumi, 2017). In other words, I tried to get insight in both the espoused theory of practitioners as well as their theory-in-action (Argyris, 1976). The interviews lasted between 45 minutes and 1 hour and 45 minutes. Two interviews were conducted over the phone (the interview with Arno and with Suzanne) and the rest of the interviews were conducted in person.

Respondents were sampled through a combination of snowball sampling and criterion sampling. One criteria for my respondents was that the respondents conduct VOM as part of the criminal justice process. There is also a VOM program operating outside the criminal justice

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21 process, but I chose not to include mediators of that program as it is more focused on victim-offender conversations instead of mediation7. Furthermore, I tried to pay attention to diversity within my respondent group. I approached both the Restorative Justice organization of the Netherlands and the Association of Mediators in Panel Matters and they put me in contact with practitioners. In addition, I looked on websites related to VOM in The Netherlands to find respondents. The table below shows the list of the 12 mediators that I interviewed:

Respondent Education/relevant background Area of practice in addition to VOM

Stijn - Criminal law degree - Retired

Judith - Probation officer - Family mediation - Trainer mediation

Laura - Law degree - Lawyer

- Family and labor mediation Janny - Law degree

- Master in mediation

- L & XL mediation - Trainer mediation Monique - Criminal law and

criminology degree

- Family mediation - Deputy judge Vincent - Probation officer

- Social pedagogical assistant

- Labor & neighborhood mediation

Rozita - Psychology degree - Family mediation

Arno - Probation officer - Labor mediation

- Trainer mediation Hans - Theological studies

- Worked in a prison

- Family, labor & neighborhood mediation

Emma - Criminal law degree - Family mediation

- Trainer mediation Kees - Military service

- Principal consultant ICT

- Labor and neighborhood mediation - Trainer mediation

Suzanne - Law degree - Labor mediation

- Trainer mediation

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22 3.2. Limitations

One limitation is that, while I aspired to leave as much room as possible for the respondents to tell their story and give their own interpretations, I do not deny that I as the interviewer have led the conversation, consciously and unconsciously, in a certain direction based on my own ideas, knowledge of the topic and my own framework (Bryman, 2012). As such, my own biases have had an influence on the process of the interview and the shape that the story produced by the interview has taken. As narrative interviews are mainly focused on letting the respondent tell his or her story, however, I do not perceive this influence to have affected the outcome of the interview in a substantial way.

Moreover, the most direct way to explore the extent to which the actions of the practitioners relate to their espoused theory of how they deal with neutrality is to also observe them in their practice. Getting access to a mediation process is difficult, due to its sensitive content and consent that is needed from all the parties involved in the conflict. As such, I made the decision to try to get an as detailed as possible account of their actions through narrative interviewing. The detailed descriptions come close to the theory-in-use, but it is not the same as actually observing what mediators do in practice. A limitation of this method is that the memory of the respondent might be flawed and that the respondent might choose to leave things out, limiting my access to their theory-in-action. In addition, getting the respondents to talk about their theory-in-action instead of their espoused theory was sometimes quite challenging. This might, partly, be the reason that I did not discover any significant discrepancies between their espoused theory and their theory-in-action.

Another limitation is the use of snowball sampling, as it restrained the possibility of ensuring diversity within my respondent group, even though such diversity is important to limit bias (Bryman, 2012). Diversity in this research is important in terms of gender, ethnicity and in terms of the background of the mediator. As described in Chapter Two, especially ethnicity can cause certain implicit biases. Therefore, there might be a difference in the way that neutrality is approached, based on different ethnicities of the mediators. Although diversity is present in terms of gender and relevant background in this research, it is not in terms of ethnicity since all respondent are white. As such, there is a bias in terms of ethnicity. Furthermore, it has become clear that a many of the respondents are closely linked to each other and have worked or still work closely together as co-mediators or have been trained by one of the other respondents. This may explain a similar approach to the mediation process of VOM. These circumstances limit the possibility of generalization of the result. Additionally, the results are specific to the

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23 criminal justice system of The Netherlands, where the research has taken place, and cannot be considered to be representative for VOM mediators generally.

A last limitation was that two interviews where held over the phone due to time constraints. Although it was attempted to video call these respondents, in the first case the connection was too poor to make the conversation go smoothly. In the second case the respondent indicated to prefer calling over the phone instead of video calling at that specific moment. As I did not see these respondents while conducting the interview, I possibly missed important body language signs they might have given. The rest of the interviews did take place in person.

3.3. Ethical Considerations

As VOM entails the perpetuation of crime, and information that is to remain confidential, the interviews with the mediators might contain sensitive data. This data should be handled with care. As such, clear agreements were made with the respondent whether he or she prefers to stay anonymous (using pseudonyms), and the extent to which he or she consents to information being used in the context of this thesis. A consent form was sent to the respondents in advance, asking permission to record the interviews and informing them that transcripts of the interviews can be requested and that quotes used for the research will be send to them first for approval. Together with sending the quotes for consent, anonymity was offered to the respondents again, in case respondents decided they did not want to be affiliated with the quotes. I also informed them of my choice to refer to them only using their first name. As the data is less directly connected to them in this way, I hoped to limit requests to adjust or take out quotes. Three respondents chose to stay anonymous and a few respondents have made suggestions for editing of the quotes. Except for one or two elaborations for clarity, these suggestions entailed minor adjustments of their wording and did not significantly change the substance of the quotes.

This chapter has set out the research design, the sampling of the respondents, the limitations of the research and the ethical considerations. Since all respondents in this study work in a common institutional context that to some degree influences their work, this context will be described briefly before moving on to the reflection mediators give of their practice.

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4. The Criminal Policy Context of VOM in The Netherlands

In accordance with other European countries, Restorative Justice started to take shape in the late 1990s in the Netherlands through projects in cooperation with the youth justice system (Laxminarayan, 2014, p. 107). Most of these projects worked with family group conferencing and the evaluations of these projects were predominantly positive. From 1997 until 2004 the Dutch Probation (Reclassering Nederland) ran the project ‘Restorative Justice’ in cooperation with Victim Support (Slachtofferhulp), which was focused on serious crime. In practice, they organized victim-offender dialogues sessions after the offender was already sentenced or after the punishment had already taken place (van Hoek, Dierx, Hogenhuis & Jansen, 2012, p. 183). Subsequently, in 2007, victim-offender dialogues have been implemented nationwide for both youth as adults (van Hoek, Dierx, Hogenhuis & Jansen, 2012, p. 182) and other initiatives have also been taken within civil society, detention and aftercare (Leximinaryan, 2014, p. 107). After successful pilots within six courts in the Netherlands, VOM has become officially applicable in all courts throughout the country since June 2017.

Today, VOM programs in the Netherlands exist both separate from and as part of the criminal justice process. Perspective Restorative Justice8 (Perspectief Herstelbemiddeling) was initiated in 2001 to give victims a chance to meet the offender. They are responsible for the countrywide application of victim-offender dialogues. These dialogues are separate from the criminal justice process and can take place at any time. In principle, they are not fully-fledged mediations as they focus on making a conversation between victim and offender possible and facilitating emotional processing. They are not necessarily focused on reaching an agreement between the victim and offender to restore the damage or relationships (van Hoek et al., 2012, pp. 198-199). If they do take place before the hearing, however, the prosecutor may be informed of the outcome (idem, p.107). Furthermore, VOM is also commissioned by the criminal justice system. Although pilots have been conducted beforehand, article 51h has been implemented in 2011, which promotes VOM and states that judges must consider the results of the mediation (Blad & Dierx, 2012, p. 88). Within the criminal justice system, the judge, the prosecutor or the police can refer a criminal case to mediation. Here, the public prosecution office, together with police, implements the so called ‘ZSM-approach’, which stands for a fast, smart, and victim-focused approach of referring cases to a mediation service. The aim of this approach is to find out in an early stage if there is a better solution than criminal law (van Hoek et al., 2012, p. 210). In addition, the victim, the offender or their legal aid can request mediation. Moreover,

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25 all criminal cases can be referred to mediation. A condition that must apply, however, is that the offender acknowledges a share in the offence to be able to participate in VOM (which is not a neutral condition) (De Rechtspraak, 2017). The Dutch criminal justice system does often use the term ‘suspect’ instead of the term ‘offender’ to indicate that at this stage of the process the offender is not found guilty yet.

If the mediation office of the court decides that the case is suitable for mediation, the criminal case is stopped and both parties are contacted. First, the offender is contacted to see if he or she is prepared to acknowledge a share in the offence and if he or she is prepared to engage in a conversation with the victim. If so, the mediation officer also contacts the victim. If both parties voluntarily agree to participate, they get referred to an independent mediator that is registered with the Legal Aid Council (Raad voor de Rechtsbijstand). Separate intake sessions will be hold with both parties and subsequently a joint session is held. Most of the time, the joint session is held at court, with two mediators instead of one. Here, the parties get the opportunity to provide insight into their actions, restore the relationship and make an agreement regarding an appropriate settlement of the case. If the parties reach an agreement, this will be taken into account when the criminal case is continued (de Rechtspraak, 2017). This means that in the criminal policy context of The Netherlands, the outcome of VOM can have influence on the criminal justice process.

VOM within the criminal justice system of The Netherlands is thus applied to involve the victim in the criminal justice process and to discover if there is a better solution than criminal law. Although all cases can be referred to VOM, the offender is expected to at least acknowledge a share in the offence to be able to participate. If the victim and offender reach an agreement with the mediation, this is taken into account and can influence the criminal justice process. The next chapter will explore how mediators practice neutrality within the institutional context ascribed above.

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5. A Practitioner’s Reflection on Practicing Neutrality

In this chapter, the accounts that mediators gave when interviewed of how they dealt with the challenges of neutrality within the context of VOM are analyzed. The theory suggests that the main challenge is the dilemma between being impartial and establishing equidistance (Rifkin et al., 1991); these two aspects will be the focus of this chapter. The first part of this chapter describes the characteristics respondents themselves identified as differentiating VOM from mediation in general. The second part explores how mediators deal with impartiality. It describes how mediators deal with both the biases that the system imposes as well as their own biases. The third part focuses on the ways and extent to which mediators try to establish equidistance. It explores how they deal with power imbalances that might exist between parties with regard to both the process and outcome of the mediation. The last section is an analysis of how mediators manage the relationship between impartiality and equidistance. The way they manage this relationship is linked to the more directive or facilitative approach that they seem to take. These four parts have been structured based on the themes derived from both the theories and the interviews.

5.1. The Context of VOM

Chapter 2 has illustrated that there are a few characteristics that distinguish VOM from the broader field of mediation: the pre-established roles, the limited self-determination, the importance of secondary victimization and the susceptibility for power imbalances. Before moving on to analyze how the mediators who were interviewed deal with the different aspects of neutrality, this section sets the context of their work by examining how they experience the context of VOM and how it differs from mediation in general, particularly with regard to neutrality. The features that they point to that characterize VOM as a distinct field are discussed below.

5.1.1. Dynamics between Parties

When asked to reflect on the difference between VOM and civil mediation, the mediators interviewed pointed to the special dynamics that exists between parties as the feature that differentiates VOM from civil mediation. One aspect of this dynamic that is identified is the nature of the relationship. As Rozita describes it:

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27 It is very different, because in family cases or work cases, you will see if they can,

they often have a relationship with each other, either an intimate relationship or a work relationship. But in criminal cases, it is often that they don't even know each other.

She argues that when this is the case, it can be easier to see what kind of agreement can be reached in the sense that you do not have to address the past complications of the relationship. Emma added, however, that she also deals with cases in which people have a history with each other but “it is escalated to the extent that it has ended up in criminal law”9_{. In such cases the}

relationship can make the work of a practitioner even more challenging because they must deal with a relationship that has become so tense that it has driven at least one of the parties to commit a crime.

Another aspect is the intensity of the case. Some mediators state that the fact that an actual crime has occurred with an actual victim and an actual offender brings a certain intensity to the case. As expressed by Laura:

It is also quite explosive usually. People have had an encounter which was very high intensity. One is the perp the other is the victim. So they are also very, how shall I say, their official positions are really antagonized. There is not like two people who decide that they want to divorce together, or its.. very.. they are really opponents in a criminal case.

When she compares it to labor mediation she states:

Of course you can feel that you have been treated unjustly or, as an employee or as an employer, you can feel that way, but it is not as clear cut as when I punch you in the face, then I hurt you, and I have done something and there is no getting out of it.

In other words, the intensity of the case is high to the extent that it ended up in the criminal justice system. Additionally, the official opposing positions that are ascribed to them within this system add to this intensity. Mediators argue that these dynamics entail different emotions and a different weight than in civil mediation, both often heavier, with which they have to deal.

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5.1.2. Personalities of the Parties

In addition to the fact that mediators often have to deal with the different emotions and a different weight, they indicate that, in VOM, they also often have to deal with difficult personalities:

In criminal law, you often deal with low developed people, low educated people who respond very primarily and never learned to argue safely and react immediately.10 (Emma)

That is, I think that happens more often with criminal law mediation, that you are dealing with a personal disorder, that someone is not capable of any self-reflection or empathy.11_(Monique)

Consequently, people with such characteristics often do not look for a solution within themselves but externalize everything. The example Rozita offered illustrates this:

I had a court mediation in prison, that was a rape case and the offender only wanted one thing in mediation, to become free. It was not a very smart guy and he just expected the victim, the woman, to help him getting out of prison. That was of course very shocking for the woman, because she wanted to know why he had done what he had done. And well, it was hard for him to understand what the woman wanted and needed. So that's a completely different playing field, so our role was then to hold him back and protect the woman for the emotional, lack of emotional feeling and empathy from the offender.

Having to deal with personalities like the one described above means that it might be more challenging for the mediators to help parties understand the other’s perspective. Key features of mediation – the interdependence of the parties and their capacity for empathy and communication – are compromised. Moreover, the examples demonstrate the point that mediators make about the fact that they sometimes also have to deal with offenders who only join because it might result in the dismissal of the case and not because offenders are actually interested in taking responsibility for their crime and repairing harm.

10_{Quote translated from Dutch to English: “Dat je toch in strafrecht vaak met laag ontwikkelde mensen zit, laag}

opgeleide mensen die heel primair reageren, nooit hebben geleerd om veilig ruzie te maken en meteen reageren.”

11_{Quote translated from Dutch to English: “Dat is, vind ik wel bij strafrecht mediation wel vaker aan de hand dan}

in gewone mediations, dat er wel sprake is van toch wel een persoonlijkheidsstoornis, dat iemand niet in staat is tot enige zelfreflectie of tot empathie.”

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5.1.3. Limited Self-Determination

Furthermore, mediators pointed to the limited self-determination of the parties and the influence of the criminal justice system and society more general in this regard. Laura explains here:

Well the difference with mediating in criminal cases is that you do not only have the parties to reckon with, but you also have the society and the person of the public prosecutor or the judge, that kind of looks over your shoulder and also in some way has to have a say in the outcome. So divorce mediation and labor mediation, it is between those two parties and whatever they want is fine, nobody actually has an interest or needs to have some input.

In addition to the limits that mediators experience with regard to their ability to offer parties a final outcome they also feel limited in what kind of agreements they can make with parties within the context of criminal law, as the outcome is not only in the interest of the parties but also in the interest of criminal law and the society as a whole. Kees explains:

At this moment the outside world, especially here in Holland, has a very strong idea about victims and offenders. And that makes, it may sound strange, that the real tension is for me, and I think for most mediators, exists not between the mediator and the guys around the table; there is a lot more tension between the mediation itself and the outside world. […] I think politicians are very hesitant about mentioning: ‘Well let’s introduce mediation in criminal cases’. Because their party member members will say: ‘You have to punish them harder!’ and ‘Put offenders away for longer period.’ ‘we have to save the victim.. we have to take care of the victim’.

What Kees seems to say here is that mediators feel pressure from society to take the side of the victim and to not make an agreement that lets the offender off too easy. As Emma summarizes: “you are always in the periphery of the criminal [law] system”12_.

5.1.4. Suitability of the Parties

Another difference that is underscored by Suzanne, and which is connected to the aspect of self-determination, is that the mediators have to judge and decide whether the parties are suitable for VOM and if a joint session can take place. She states this is not the case in civil mediation:

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30 There I do not judge anything, even if they all scream: ‘We want to kill each other!’

Then I will still say: ‘Well welcome everyone, the mediation is going to start.’ This is not the case in criminal law.13

Although other mediators do not necessarily identify this as a different aspect of VOM, they do imply that the parties have to be suitable for VOM. With regard to the offender, most mediators argue that he or she has to admit his or her responsibility for the crime at least to some extent. Laura states for example:

Basically, that is a first question you should ask yourself: is [this] a case that you can mediate? Because if a suspect denies the charge, what is there to mediate?

Suitability does not only go for the offender but also for the victim. As Judith explains:

If a victim has expectations which might be understandable but not realistic or out of proportion, or someone is there because they think: good that I can confront him, then I can completely scold him or I can completely.. Well someone is allowed to think that, but we cannot facilitate this form of confrontation.14

Mediators thus argue they have to screen if people are actually intrinsically motivated to reach a solution and to see if someone is not only acting strategically. As Vincent states: “it is up to us to tackle that”.15

Later on, he somewhat nuances this:

Mediators also say: ‘If someone does not admit to guilt or does not want to take responsibility, then we will not start at all’. But if I have a victim who says: ‘It does not matter what he says [the offender] as long as I can tell my story and what it has done to me that he abused me or robbed me or whatever, that is enough for me’. And it is explicitly about expectation management. Then I think that should be fine.16

13_{Quote translated from Dutch to English: “Daar beoordeel ik helemaal niks. Al roepen ze allemaal: ‘We willen}

elkaar killen!’. Dan zeg ik nog: ‘Nou welkom, welkom allemaal, de mediation gaat beginnen’. Maar niet bij strafrecht.

14_{Quote translated from dutch to English: “Als een slachtoffer verwachtingen heeft die misschien heel begrijpelijk}

zijn maar niet reëel, of buiten proportie of iemand is daar omdat ze denken mooi dat ik die confrontatie aan kan gaan dan ga ik hem helemaal verrot schelden of ik ga 'm helemaal.. Nou dat mag iemand vinden, maar deze vorm van confrontatie kunnen wij niet faciliteren.”

15_{Quote translated from Dutch to English: “dat is dus aan ons om dat te tackelen”}

16_{Quote translated from Dutch to Englisch: Mediators zeggen ook: ‘Als iemand geen schuld bekent of geen}

verantwoordelijkheid wil nemen dan gaan we er helemaal niet aan beginnen’. Maar als ik een slachtoffer heb die zegt van: ‘Het maakt me niet uit wat ie zegt, als ik maar me verhaal kan doen en kan vertellen wat het me heeft gedaan dat ie mij mishandelt, beroofd of weet ik veel wat heeft, das voor mij voldoende.’ En je doet dus ook heel nadrukkelijk aan verwachtingsmanagement. Dan vind ik dat dat prima moet kunnen.”

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31 Most of the other mediators similarly elaborate that the suitability of parties goes together with expectation management: “if it does not match [the expectations] you do not do mediation” (Laura).

5.1.5. Power Imbalance

A last difference that was identified by a few of the mediators who were interviewed is the power imbalances that the context of VOM entails. As Laura states:

In a criminal case people do not really have, how should I say, the suspect is more vulnerable because of the fact that he could have a punishment. He could be punished. But the victim is [also] more vulnerable because he already has been hurt once and you could have secondary victimization.

Suzanne also points to the more vulnerable position of the victim regarding the risk of secondary victimization on the one hand and on the other hand she argues that the victim can be the more powerful party because the offender is dependent on his or her cooperation for a more favorable punishment or dismissal of the case:

[T]he victim has momentarily a little more power right, because he or she has something to give. Because everyone knows by now that 75 percent of all cases that succeed here, get dismissed. So if the victim cooperates, then that is also a gift. What I often see the victim do is that they say: ‘Well I do not need that 500’, I am just saying something ‘I do not need the 500 euros, give me 250’ and then you see that the victim suddenly has given something and then the offender has to say thank you.17

Thus, there are a few characteristics that the mediators interviewed themselves identify as distinguishing VOM from the broader field of mediation. Firstly, they pointed to the special dynamics between the parties that results from the nature of the relationship between the party and the intensity of the case, both leading to a different (often heaver) weight and emotions. The fact that they often deal with difficult personalities within VOM adds up to this. Secondly, the respondents recognize the limited self-determination of the parties when it comes to

17_{Quote translated from Dutch to English: “Daarvan heeft het slachtoffer eigenlijk eventjes meer macht hè, want}

die kan nou een beetje iets geven. Wat iedereen weet namelijk zo onderhand wel dat zeker 75 procent van alle zaken die hier slagen geseponeerd worden. Dus als dat slachtoffer meewerkt, dan is dat ook een cadeautje. Wat ik het slachtoffer ook vaak zie doen is dat ze zeggen: ‘Nou ik hoef die 500’, ik zeg maar wat, ‘Ik hoef die 500 euro niet, geef me maar 250’ en dan zie je dat het slachtoffer opeens iets heeft gegeven waardoor die dader dank je wel moet zeggen.”

Practicing neutrality : balancing impartiality and equidistance in victim-offender mediation