PART IV: EMPIRICAL FINDINGS AND DISCUSSION
7. Introduction
7.5 Victim offender mediation in Norway as a ‘keyhole’ lens
7.5.3 Victim offender mediation process – South Africa and Norway
the phases and stages of the victim offender mediation model used in South Africa and Norway. The differences are negligible and do not detract from the finding that judging from the pattern, the same model is used in two very different contexts.
196 The following general patterns can be discerned from the data. The victim offender mediation process is divided into five phases (referral from court, pre-mediation,
mediation, post-mediation and follow up phases). The actual mediation process consists of three, four or five stages depending on whether mediation happened on the same day as the pre-mediation or the practice of the organisation. The general pattern can be described as follows:
(a) Referral phase
There seems to be contradictory accounts by different victims and offenders as to whom they were referred by and at what stage of the criminal justice process. Victims and offenders generally say that they were referred ‘from court’, ‘by the magistrate’, and in one instance ‘by the judge’ (which was later clarified to mean the magistrate).
While mediators and restorative justice leaders were clear about the distinctions between the prosecutor and the magistrate, they did not seem familiar with the finer distinction made by the criminal justice system with regard to the conditions under which certain types of offences were referred for victim offender mediation. The Criminal justice system makes a distinction between pre-trial and pre-sentencing victim offender mediation which clarifies the more violent cases that are referred for victim offender mediation but which some participants appear unaware of. The Department of Justice and Constitutional Affairs booklet on restorative justice reads:
Petty offences may be diverted without a trial but offences which involve a level of violence may have to involve restorative justice process only before sentencing or after sentencing (2011:8)
This information is important as the Department of Justice makes a distinction between (i) ‘petty offences’ that provide the basis for victim offender mediation and (ii) ‘offences which involve a level of violence…’ that provide the basis for ‘pre-sentencing victim offender mediation’. Judging from the perspective of the restorative justice programme leader cited earlier, he appears unaware of the distinction. Part of his comment is repeated here to illustrate his view:
Minor offences are relative… crimen injuria, theft, minor damage to property, assault with intent to do grievous bodily harm. In North America these crimes are serious, in South Africa they are regarded as minor with
197 [National Prosecuting Authority] NPA criteria being (i) first time offences
and (ii) minor offences.
This made it difficult to understand which cases were in fact ‘pre-trial’ and which cases
‘pre-sentencing’, but more importantly, what is regarded as ‘minor’ or ‘petty’ and why, in the context of South Africa which is labelled as a violent society. These confusions aside, from interview and documentary data there appear to be three broad criteria (i) first offence, (ii) petty offences, and (iii) offences which involve a level of violence.
In addition to the confusion generated by the uncertainty of some victims and offenders as to who exactly referred them from ‘court’, which led to the confusion about the severity of cases suitable for victim offender mediation, some parties gave different accounts of how and by whom they were referred for victim offender mediation.
In a case, that from the account of the victim could be described as attempted vehicular murder by an off-duty criminal justice official, she stated –
I opened a case at the [offenders’ name] police station. The case took so long, I even gave up… [T]hat’s when out of the blue [mediator’s name]
called me and said ‘I am from [restorative justice organisation name] we have your case’.
The victim claimed that her case was not given any attention by the police for more than a year. This was a very serious offence and the offender was afraid of losing his job. She consented to mediation when she was called by the mediation organisation, because she did not believe that the criminal justice system would treat her fairly. It is not clear how and by whom this case was referred to the restorative justice organisation and my attempts at clarification, over a protracted period, were met with no response from the mediator.
• A married couple in a domestic violence case stated that they were referred for marriage counselling by a ‘judge’ when the wife stated that she would reconcile with her husband only if they could go for family counselling. On further inquiry it became clear that they were referred by a magistrate. The wife felt that her need for family counselling was not met and regarded the mediation process as a good start only. While her husband stated that he found it helpful to talk to others who have committed the same offence in a group workshop situation, the wife stated
198 that workshop situations are potentially embarrassing and that she did not attend the group workshop that her husband attended.
• A third victim stated that both he and the offender were subpoenaed to attend a victim offender mediation process. On further inquiry, I was advised by a programme leader that this is uncommon and that the victim probably misunderstood the nature of the correspondence.
• A fourth participant (secondary victim) stated that her daughter was detained for two weeks because she reported her for leaving her baby in the toilet. This parent was clearly a secondary victim in a mediation process with her daughter, but it is not clear how they arrived at the restorative justice organisation and all my subsequent enquiries for clarification were met with no response from the mediator.
Offenders generally stated that they were sent by the magistrate or ‘we went to court and from court we were sent here to [restorative justice organisation name]’. Neither victims nor offenders in this study mention the word ‘prosecutor’ and I understood reference to ‘sent from court’ to mean that they were sent by the prosecutor or magistrate and were unfamiliar with role players within the criminal justice system.
(b) Pre-mediation phase
All victims and offenders stated that it was the first time that they heard about restorative justice and the process of victim offender mediation and that the restorative justice process was explained to them by the mediators who first sought their consent, after which the mediation process started. This implies constructive coercion as restorative justice processing and what it entailed was not explained to victims or offenders ‘at court’
by the magistrate or the prosecutor but they were sent to the restorative justice venue. It is double coercion for the offender, as failure to consent to a restorative justice process would mean that the matter would go to trial or sentencing. A Norwegian restorative justice organisation leader referred to this as a ‘carrot and stick’ approach. Despite this finding of constructive coercion, victims and offenders who participated in this study were generally happy with the mediation process. Of concern here is the fact that victims and offenders appear unfamiliar with criminal justice processes and might not always
199 understand exactly what they are consenting to, as for many it is their first encounter with the criminal justice system.
From my observation of a victim offender mediation process in South Africa, the mediator addressed the parties together to explain what restorative justice processing is about. In Norway, because of the part-time lay person system, mediators receive their instructions telephonically or via post and make telephonic contact with parties and/or arrange separate meetings to explain the process. One mediator stated:
I receive a phone call from the administration or in the mailbox, the police papers and konfliktråd admin papers. Then I contact parties for individual pre-meetings and start to map the conflict of course something as happened before, a pre structuring. I talk to them on the phone meet them individually, inform them about what the process is about, what we can offer. I try to understand as much about the conflict as possible in order to facilitate the mediation for instance with what kind of support persons should be there, what kind of needs are there related to language. Normally it’s in
Norwegian so there’s no problem, but often we need interpreters and so on.
If they agree to meet, well in principle they have already agreed to meet when I get the mail in the box, but I’m checking of course the motivation and then we have the meeting.
(c) Mediation phase
Introductory stage
During the introductory stage, after the meeting, greeting and seating of parties, the actual mediation commences with the mediator suggesting ground rules for engagement and an explanation of what each party is required and/or entitled to do during the mediation event. From my observation, parties are encouraged to ask questions of clarification. In one South African organisation mediation follows immediately after pre-mediation while in Norway pre-mediation happens telephonically or in separate meetings with parties.
Narrative stage/Opportunity to dialogue
From the accounts of mediators, victims and offenders are afforded an equal opportunity to relate the incident in their own words, thereafter they are encouraged to address each other and work on an agreement. From the accounts of some victims and offenders, their experiences during this phase varied. Victim A stated: