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Civil Compromise Through Reconciliation As Restorative Justice

You represent a client accused of misappropriating several thousand dollars of his employer. The employer is a representative of a small business who has been working in this field for many years, enjoying an image of a reliable let alone responsible person. The company`s owner is shocked and angry. Your client has not previously been tried; he confessed to you that he had stolen the money to pay a gambling debt. You do not see any possible means that would absolve him of having to. On the faith of your advice, he “pleas of not-guilty” in the hope of a favorable plea-bargaining arrangement.

This is one of many examples of serious (or not so serious) offense, when there is almost no or no need from society to punish the offender, let alone, similarly, punishment for the sake of intimidation is unnecessary. The damage is only to the victim of the crime. If you can make a contract, according to which:

  1. The offender will assume conscious responsibility for damage caused, compensating the victim a loss, also following which,
  2. The criminal will be able to show that he repents of the deed and reconciles with victim, then, by contracting expenses justice for conducting such proceedings, it is going to be possible to apply for this money to another offender criminal prosecution who admits no guilt of his, does not take responsibility for the crime, and is a threat to society.

This is the essence of the concept of restorative justice, its difference from punitive justice, and it was on such a conceptual basis that the Victim-Offender Reconciliation Programs (VORP) and the victim-offender mediation programs (Victim Offender Mediation Programs VOMP).

Reconciliation programs and other similar programs personalize the crime assisted by a mediator. The mediator has undergone specialized training. His/her task, sometimes professional, sometimes public volunteer, lies within putting an offender and a victim face-to-face in a carefully constructed, voluntary and safe confrontation. This person, who serves as the mediator, maintains neutrality, without making any decision or dictating any result. He or she helps (facilitates) to hold a discussion, during which crime victims receive answers to frightening, but able to bring relief questions (for example, “Why did you do this to me?”), Give the criminal his opinion on what happened and work out reconciliation agreement, in accordance with which the offender compensates for the damage caused. In punitive justice, crime victims are often considered to be indifferent witnesses. In restorative justice, they are vested with the primary participant authority when it comes to a solution to conflict crime related committed against them. Victims usually report when reconciliation is done and the most significant thing is the ability to influence a problem by a convincing offender somehow to stop committing a crime.

In many cases, criminals have a unique opportunity to avoid prosecution, due to them to take responsibility for their actions to let alone must compensate for the damage caused. Instead of being handed over to the court of justice, they can help to define how they are about to respond to the crime committed. At a level of human relationships, instead of isolation let alone removal from awareness, they understand nature and consequences made by the harm caused by them. Necessary protection types that current criminal justice system allows accused to must have included, like one of the unfortunate side effects, the tendency to focus the offender’s attention on various types of defense mechanisms, testimony, hearings and trials, and not the crime committed by the accused. The accused is anxious to obtain an acquittal due to circumstances precluding guilt or to receive the least severe punishment. No one wants to be punished; this is a normal reaction. (It should be noted here as benefits let alone relevance in criminal proceedings, which are based on a presumption of guilt of the accused of a perfect offense. Only in sporadic cases, the defendant, who sincerely confirms his innocence, rather than just declaring himself innocent, can be involved in conciliation with a person stated that he was the victim.

If accused is out of position to take responsibility for the offense, s/he should exercise presumption of innocence right). During conciliation, offenders get an opportunity to ask for grace and receive it. The most significant benefit for offenders is perhaps effective discharge let alone psychological release from an “offender” image or “offender,” which gives correction of the harm done. The sense of this “release” is usually not experienced after the offender has been punished without restitution and reconciliation. Many “rehabilitated” offenders say after serving their sentences it to be not enough to just «pay your debt to society.” It was continued to feel a need to apologize let alone correct their guilt concerning a crime victim. This is a necessary element for them to restore self-esteem. Today, benefits just like reconciliation programs advantages are widely recognized let alone documented. There are more than 200 reconciliation programs in America, Canada, Great Britain, Europe, Australia, and South Africa; b on the northwest coast of the Pacific Ocean. Experience in implementing these programs and statistics show:

  1. Approval occurs in approximately 2/3 of the cases related to reconciliation programs. In the majority of cases that did not result in reconciliation, the victim of the crime deviated from participation. Quite often, the criminal himself prefers to deal with the judge, and not with the victim of the crime committed by him. Specialists conducting reconciliation programs, for some cases, reject a cause from conducting conciliation based on a problem of security guarantees for the victim of crime.
  2. More than 90% of the cases in which the reconciliation program was applied resulted in an indemnification consent let the single contract. Damage can be paid in the form of monetary compensation, restoration or replacement of damaged or stolen property, any work done for a victim, or any other way only limitation to be your own creative the parties’ imagination alone. Contracts among a crime`s victim let alone a criminal related to relationship continuation often include a condition to adhere or, conversely, refrain from some behavior. For some cases, the only thing that victim of the crime wants after meeting with the criminal is to get an apology and promise never to do it again. Contracts concluded with juvenile criminals, as a rule, contain certain conditions concerning the school, for example, for returning to school, for completing education, or for obtaining marks that are not below average.
  3. Among the cases that resulted in the signing of a reconciliation (rehabilitation) contract, more than 95% of the deals were completed successfully within one year after mediation. Conciliation specialists control contracts and, if necessary, organize additional mediation meetings to ensure that the conditions are met or to amend the terms of the agreement. An analysis of the judicial practice of compensation for damages by conviction shows that appropriate compensation occurs in 30% of cases. The reason for such a large discrepancy can be caused by the fact that criminals in a conciliation agreement view it as their agreement. Sentences related to damages are often considered as punishment and as a duty of the accused. Another reason may be connected to the fact that the process of conciliation, in contempt of reimbursement by sentence, is aimed at creating a mediation a settlement agreement that an offender can commit.
    Particular intermediaries training lets you direct the process of negotiation such that a right to receive compensation from crime victim is balanced by the need for the criminal to fulfill real obligations.
  4. 75% of crime victims and 65% of offenders participating in mediation programs say they are satisfied with how a criminal justice system handled its case; 85% of victims and criminals who take part in conciliation, note a validity of a result achieved in their case. Generally, less than 40% of victims of crime and less than 20% of offenders speak of a fairness sense and satisfaction result satisfaction when it comes to cases one did not go through a conciliation procedure.
  5. There is increasing evidence, although they are still of a preliminary nature, showing that it is much less likely that offenders who have gone through mediation with the victims of their crimes will return to the underworld again, compared to offenders who had traditional nature. The statistics of reconciliation programs in the United States shows that the level of recidivism among offenders who have gone through reconciliation programs does not exceed 10%. According to Professor John O. Haley of the University of Washington School of Law, many modern studies show that offenders generally have remorse after committing a crime, their reaction is manifested either in the form of an attempt to restore relationships through repentance and restitution or to justify your misbehavior. There are other reactions. However, it is the desire to show contrition, to find reconciliation and to receive forgiveness are usually the initial reaction, which, if not satisfied, leads to the justification of the offense. Thus, many offenders, unable to admit their guilt, express repentance and receive forgiveness, begin to justify their crime, blaming him for the victim, society or anyone else. Therefore, for many offenders, reconciliation in criminal matters serves as a correctional process, in contrast to prisons, which we so euphemistically call “correctional institutions.”

On the average, the process of mediation of a criminal case costs about several hundred dollars, which is many times lower than the cost of judicial punishment. Faced with the real human consequences of the acts committed and feeling responsible to the victim of a crime, in the process of reconciliation the offender has a “sense of sympathy” for the victim, which can prevent the commission of a new crime. No other methods applied to begin criminals in criminal justice have such great potential to prevent their further criminal “career.” Some prosecutors, who do not have enough experience working with reconciliation programs or using them in criminal cases, or not knowing about them at all, officially oppose the use of civil compromise or mediation, arguing their objections with the interests of state policy. Representatives of the prosecutor’s office say that reconciliation is not able to meet the needs of society in the punishment and isolation of the offender. But when reconciliation agreements between the victim of a crime and the offender are submitted for judicial approval, prosecutors, aware of the courts ‘favor for such contracts (caused at least by the fact that this only means keeping a book of records), usually come out in opposition just for the sake of pro forma, of course except when the contract is patently unfair.

citation:

Apologies and Legal Settlement

The empirical studies described here explore the proposition that apologies facilitate the settlement of civil disputes either by increasing potential plaintiffs’ inclination to accept a particular settlement offer or by altering parties’ perceptions and attributions in ways that might smooth the progress toward reaching a mutually satisfactory settlement agreement. More specifically, these studies explore the differing ways in which apologies are perceived and responded to when crafted to better insulate the offeror from legal liability (e.g., expressions of sympathy and statutorily protected apologies). This research suggests that an apology may favorably impact the prospects for settlement but that attention must be paid to both the nature of the apologetic expression and the circumstances of the individual case.

citation:

Jennifer K. Robbennolt, Apologies and Legal Settlement: An Empirical Examination, 102 Mich. L. Rev. 460 (2003).

Apologies and Plea Bargaining

Theoretically, encouraging apologies early in the criminal process may be a laudable goal given the potential benefits of apologies to victims, offenders, and communities. But empirically, the growing literature on apologies in psychology and law raises important questions about whether apologies-when made prior to sentencing-would lead to more favorable results for the offender. Given the overwhelming portion of cases that are resolved through guilty pleas, we argue that most defendants are unlikely to participate in pre-sentencing remorse or apology rituals without regard to the effect of the apology on plea bargaining outcomes. Mindful of recent scholarship on apologies in both law and psychology, we consider the role of apologies in plea bargaining and theorize about the ways in which apologies might affect plea negotiations. We conclude that, contrary to the assertion that apologies would lead to more favorable plea bargained outcomes for defendants, the nature of plea negotiation renders this result unlikely.

citation:

Margareth Etienne & Jennifer K. Robbennolt, Apologies and Plea Bargaining, 91 Marq. L. Rev. 295 (2007).

What We Know and Don’t Know About the Role of Apologies in Resolving Health Care Disputes

The role of apologies in resolving all types of civil disputes has received growing attention. While apologies may well play a role in resolving civil disputes generally, they may be particularly relevant in the health care setting—a setting in which the parties are in a relationship that necessitates a high degree of trust and intimacy. Much of the discussion of how apologies might be beneficial in resolving health care disputes has been based primarily on intuition and incomplete empirical data. This Article attempts to review what is known and not known about apologies in this context. After briefly reviewing, in Part I, some recent legislative developments regarding disclosing and apologizing for medical errors, Part II describes what is known about apologies in health care disputes. This Part brings together and examines a variety of empirical data—from surveys, experiments, and case studies—that bear on the role of apologies in health care settings. Part III draws attention to avenues of further research.

citation:

Jennifer K. Robbennolt, What We Know and Don't Know About the Role of Apologies in Resolving Health Care Disputes, 21 Ga. St. U. L. Rev. 1009 (2005).

The Role of Apology in Negotiation

Is “I’m sorry” the hardest phrase to say? Does it matter whether you mean it? This essay examines the critically important issue of apology, and how and when an apology can be helpful or harmful in a negotiation. Reviewing the latest empirical work, the authors discuss the purpose, type and timing of an apology, to ensure that any apology given accomplishes its goals.

 

citation:

Jennifer Gerarda Brown & Jennifer K. Robbennolt, The Role of Apology in Negotiation, in The Negotiator's Fieldbook 425 (Chris Honeyman & Andrea Cupfer Schneider eds., 2006).

Apologies and Settlement Levers

This study uses experimental methods to explore the role of apologies in legal settlement negotiation. Specifically, the study examines the influences of apologies on disputants’ perceptions, and the effects of apologies on a number of judgments that influence negotiation outcomes— settlement levers such as reservation, aspirations, and judgments of fair settlement amounts. Five-hundred-fifty-six participants were asked to take the role of potential plaintiffs, to provide their reactions to an experimental scenario, and to indicate the values they would set for each settlement lever. The nature of the communication with the offender and the description of the evidentiary rule governing the admissibility of the offender’s statement were manipulated. The data suggest that apologies can promote settlement by altering the injured parties’ perceptions of the situation and the offender so as to make them more amenable to settlement discussions and by altering the values of the injured parties’ settlement levers in ways that are likely to increase the chances of settlement. The results suggest further, however, that the nature of the apology itself, as well as the factual circumstances surrounding the incident, may play important roles in how apologies are understood.

 

citation:

Jennifer K. Robbennolt, Apologies and Settlement Levers, 3 J. Empirical Legal Stud. 333 (2006).

Apologies and Civil Justice

This chapter explores the state of the empirical research on the role of apologies in the context of civil litigation with an eye toward suggesting avenues of future research. First, psychological theories that contribute to an understanding of how and why apologies influence judgments and decision making are explored. Apologies may influence a range of legally related judgments as they provide assurance that the offender will not re-offend, express the proper relative moral positions of the parties, provide positive information about the injured party’s social identity, influence emotional reactions, trigger social conventions, and change expectations about legal entitlements. Second, studies that have specifically examined the role of apologies in civil litigation are reviewed. Third, a number of variables that may moderate the effects of apologies on legal decision making are explored. And, finally, avenues for future research are suggested.

citation:

Jennifer K. Robbennolt, Apologies and Civil Justice, in Civil Juries and Civil Justice: Psychological and Legal Perspectives 195 (Brian Bornstein et al. eds., 2007).

Attorneys, Apologies, and Settlement Levers

This paper empirically explores how attorneys respond to apologies offered in litigation as they advise claimants about settlement, and compares the reactions of attorneys to those of lay litigants. While there is evidence that apologies influence claimants in ways that are likely to make settlement more likely, the research presented here demonstrates that attorneys react differently to apologies than do claimants. While attorneys understand the information conveyed by apologies in ways that are strikingly similar to claimants, attorneys’ judgments about settlement when apologies are offered diverge from those of claimants. The paper explores the implications of these effects for attorneys counseling clients in cases in which apologies are offered or desired and for the role of mediation in resolving disputes.

citation:

Jennifer K. Robbennolt, Attorneys, Apologies, and Settlement Negotiation, 13 Harv. Negot. L. Rev. 349 (2008).

Apologies and Medical Error

One way in which physicians can respond to a medical error is to apologize. Apologies—statements that acknowledge an error and its consequences, take responsibility, and communicate regret for having caused harm—can decrease blame, decrease anger, increase trust, and improve relationships. Importantly, apologies also have the potential to decrease the risk of a medical malpractice lawsuit and can help settle claims by patients. Patients indicate they want and expect explanations and apologies after medical errors and physicians indicate they want to apologize. However, in practice, physicians tend to provide minimal information to patients after medical errors and infrequently offer complete apologies. Although fears about potential litigation are the most commonly cited barrier to apologizing after medical error, the link between litigation risk and the practice of disclosure and apology is tenuous. Other barriers might include the culture of medicine and the inherent psychological difficulties in facing one’s mistakes and apologizing for them. Despite these barriers, incorporating apology into conversations between physicians and patients can address the needs of both parties and can play a role in the effective resolution of disputes related to medical error.

citation:

Jennifer K. Robbennolt, Apologies and Medical Error, 467 Clinical Orthopaedics & Related Res. 376 (2009).

Apologies and Settlement

Review of the empirical research on the influence of apologies on claimants, attorneys, and judges in civil cases.

citation:

Jennifer K. Robbennolt, Apologies and Settlement, 45 Court Rev. 76 (2010).