Pelikan, Christa. Victim-offender mediation in domestic violence cases-a research report

In this paper, Pelikan examines the results of empirical research into the issue of victim-offender mediation in domestic violence cases, with emphasis on the situation in Austria.

This is about research and about specific knowledge gained by empirical research - a special type of empirical research done in a field of special interest.

 

1. What kind of problem, what field of research?

 

Regarding the field, I have to make some introductory remarks that lead directly to the core questions of the research project or in other words to outlining what drives my quest for knowledge and cognition. ("Erkenntnisinteresse")

 

The field is the highly controversial one of the use of VOM in domestic violence cases. Thus it is not surprising that the stimulus for the research I am presenting, came out of the controversy that ensued around the application of VOM in domestic violence cases in Austria shortly after having started the pilot project in general criminal law.[1]

 

Including cases where domestic violence or violence in intimate relationships is at stake, as it happened within this pilot project has from its onset met with critique.

 

The critique

 

 

The critique of mediating domestic violence evolves around three different aspects

 

1.1. The general or normative aspect: Domestic violence cases ask for a strong public statement about the unacceptability of violating somebody's physical integrity, also and especially in the private (domestic) sphere.

 

The criminal law function of positive (integrative) general prevention -- thus runs the argument -- has to be taken care of; and especially so for a type of offence where the norm at stake is not yet completely accepted by all members of the society. Mediation is regarded as incapable of asserting and  confirming this norm: Referring a case to mediation could be understood as denying the victim the confirmation of his/her essential right to physical integrity within the home and within an intimate relationship; it could be understood as downgrading the seriousness of the harm and hurt experienced.

 

1.2. The aspect of the inner structure of the mediation procedure: i.e. its being apt to exacerbate power imbalances. It lies within the nature of domestic violence - thus runs this strand of the critique - that gender imbalances are further aggravated by ongoing violence. And it goes with the inner structure of mediation, lacking a strong authoritative overseer of the process, to provide a forum for exerting inidvidual (male) power and to enable batterers to turn to all kinds of defence strategies. On the other hand, this setting also allows for a repetition of expressions of remorse and of vain promises to abstain from violence in the future. Avoidance to take on responsibility and confront the consequences of a penal sentence might thus be enhanced. In the worst case, the batterer might even feel confirmed in his way of behaviour, and led to continuing and intensifying it.

 

1.3. the third aspect of the critique relates to the quality of VOM as a short time intervention that disclaims to be held accountable for any further incidents and developments. It does not exert any control - neither of the offender's post-mediation behaviour, nor of the victim's future well-being - except with regard to material compensation. (A feature, one has to bear in mind though, it shares with penal law interventions in the way of sentencing that do not care for the victim's safety after the sentencing either.)

 

Earlier discussion of the critique was backed up by previous  research, i.e. by a special secondary analysis of data compiled in the course of the research accompanying the Austrian pilot project "VOM in adult  criminal law". Cases of partnership and family violence that were included in that research have been scrutinized. Albeit, at that point knowledge about these cases rested exclusively upon information compiled by the social workers handling the case. They were interviewed about each of their cases and they provided systematic written information with the help of a special data/information sheet.    

 

When the work of the lawmakers  - the task was to draft a "diversion-package" of which nationwide accessibility of VOM would be a central and important part - came into its final phase and resistance was growing, the department of penal legislation of the Austrian Ministry of Justice asked us, the Institute for the Sociology of Law and Criminology, to explore - by way of empirical research:

 

 


The practice of VOM in cases of domestic violence

 

 

At that point I have to insert some remarks about the practice of VOM in domestic violence cases in Austria, especially in Vienna. In these cases, very often, though not always, a procedure called 'mixed double' (borrowed from the language of tennis) is applied. The work of the mediators, in Austria experienced social workers, starts out with asking the alleged offender and - often simultaneously - the victim whether they are willing to participate in the VOM - effort. It is the social workers who explain that the state prosecutors have decided to hand over the case to the VOM-bureau and thus offer them the chance to find a solution to try for compensation, for restoration and for a meaningful settlement.

 

The state prosecutors, as is the usual practice with "diversionary" mediation, act as gate-keepers. If both parties agree, they are asked to the VOM-premises, in Austria the bureau of the ergerichtlicher Tatausgleich  (Out-of-Court-Offence-Compensation) (ATA). Here the male social worker talks with the man alone, a female mediator takes care of the woman. In these 'single talks' they ask the parties about their concrete experience of the incidence that was reported - or led to the police being called. Previous incidences and the whole state of the relationship are further explored, and also, last not least, the expectations concerning an agreement, the content of material and non-material compensation, the intentions and concrete proposals of the offender to make good on one hand and the victim's demands and wishes concerning the future of the relationship on the other, i.e.  either the conditions for separation or for staying together.  In Vienna these single separated talks usually take place at the same time, though in different rooms. When both partners have finished, the four of them: the partner and two mediators get together for the mediation session proper, the 'talk of the four' (Vierergespr). In Salzburg on the other hand, some time might elapse between these first sessions and the following mediation sessions to give the partner the opportunity to think, to ponder, and to enlist legal or psychological counsel.

 

The session with four participants is the core element of the whole procedure. Its course follows a rather sophisticated and elaborated professional design that aims at bringing into effect the two main working principles of mediation: recognition and empowerment. At the beginning of this session the two mediators are facing each other, while the two partners remain also on opposite sides, each sitting next to his/her mediator. The mediators tell each other what they have heard during the previous single talks: the story of the relationship, the story of suffering violence and of acting violent, of threatening, hitting, constraining the other's freedom; they tell and make heard what man and woman have done, what they have seen, what they have felt. The partners are asked to listen without interfering, and only afterwards they have the opportunity to comment, to correct, and to modify the rendering of their story by the mediator. This is also the beginning of the immediate exchange of the partners - about their perceptions, and their expectations. It might be interrupted by the mediators, whenever the deem it advisable, for a so-called "reflecting team": in front of the partners the two mediators exchange their ideas and also their apprehensions and feelings about the ongoing process, including assumptions, doubts  and hunches about the state of mind, the fears, and the tensions between the partners and about their chances to come to an agreement and to live up to it.    

 

The "distancing effect" (or alienation effect) achieved by hearing one's own and the partner's story told by another person, this "changing of lenses", promotes  "re-cognition" - (literally, getting to know again) of one's own standing, and re-cognition of one's own needs and interests, beyond those of a formal legal position, or standpoint. Having found understanding and en-cognition (an attempt at translating  the German 

'Anerkennung" or Wurdigung) proves a prerequisite for empowerment - empowerment that aims at balancing existing power imbalances, and thus lends support to the weaker party.   

 

The core elements, or working principles of any mediation process: recognition and empowerment are thus displayed in a particularily strong way through the professional setting designed and applied. To investigate the effect these arrangements that characterize the VOM-intervention, are apt to produce on the lives of men and women was the goal of the research project.   

 

 


 2. What kind of research?

 

 

I have said in the beginning that this was a specific type of research, namely

 

 

 

By the latter I mean that the people working within the restorative justice effort are regarded and treated as interacting and cooperating in the research endeavour; or in other words: the researcher is another actor who takes part and enters into the (inter)-action.


2.1. To hear the voices of the clients

 

 

From the beginning it was clear to me that it was not only advisable but inevitable to follow the path I had started with another project of accompanying research - on a pilot project of family mediation. This approach was and is inspired by research in the field of contemporary ethnology, and more precisely the ethnology of law: A remark by Conley/O'Barr found in in their book "Rules Versus Relationships (1990), where they had criticized earlier research, had stuck to may mind: But the voices of the people have remained muffled."

 

To reach the clients, to make their voices heard fully and strongly,  I had to resort to qualitative methods, i.e. the production and the analysis of qualitative material/data. But I have to add that in the course of our accompanying research we did also a small quantitative analysis based on court files and of files of the VOM-services that was intended to provide a kind of framework for the analysis of the various qualitative data assembled.

 

To give you an impression of the kind of data thus compiled, let me just describe the steps taken:

 

 

 


 

2.2. On interpreting qualitative data: triangulation and interaction

The different sets of data thus procured allow for what is called a methodological triangulation, more precisely a triangulation of perspectives.

There is first of all and in the centre of the research design the perspective of the clients. They were asked to relate their experience concerning the VOM intervention, but also, of course, of the incidence of violence that brought the agencies of the criminal law on the scene; in the first instance: the police. Narratives of reporting to the police, or of calling the police, or having it called by third persons, the action taken by the police, i.e. whether they acted understanding, supportive and sensitive, or whether they tried to turn off a person seeking help was a main topic in the course of the interview.[3] Attention was also drawn to what happened after the police had been mobilized, the considerations that led up to the decision to follow through with an accusation, to speak out in court, or to refuse one's statement as a witness; the consent and the reasons to accept the offer to try for VOM; what one felt about the single talks and how about the mediation session; in which state of mind they left and how things continued afterwards. 

These lengthy narratives have to be scientifically and methodologically assessed as interpretations, interpretations by the persons concerned (but interpretations nevertheless), interpretations that are (in)formed  by previous experiences of these persons. Moreover they are told to convey a certain message to the listener and transport a certain image of the person, be it that of offender-victim, weak victim,  or fighting-back victim; that of victimized offender, of helpless offender or of reformed offender. Rendering the narrative, implies the construction of an identity; it is part of the "politics of constructing an identity" (Identitatspolitik).

These  interpretations are then seen together with the comments of the mediators (or judges). They are thus complemented and put into perspective. Still another perspective is added when the researcher acts as observer of mediation sessions; it is the perspective of somebody sitting outside and hearing and seeing the interaction of clients and mediators, respectively judges. Finally the narratives, the comments of the mediators and the observation protocols are submitted to "second level", or meta-interpretations. The social scientist is at work as an observer of observation and an interpreter of interpretations.[4] 

 This analysis, or scientifically guided re-interpretation of the data thus assembled, and brought together ("triangulated") was done with the help of a model or flow-chart depicting for once the diachronic course of events, but also the various forces of influence that came to bear upon the use, or the mobilization of the criminal law agencies and of VOM procedure, and on their preventive and "peace-making" effects. 

 

 

 

 

 

 


 Within the diachronic model altogether three sets of variables were represented: 1/ constellations of conditions (as listed above) 2/ sequences (courses) of events and 3/ interventions and effects/outcomes. Analysis started with looking at single cases, followed by comparing cases and by contrasting cases alongside the different aspects or variables. Within each of the three sets of variables we introduced relevant differences ("differences that make a difference") and from there - by establishing correlations between the differences of conditions, of sequence and of effect - we attempted to develop typologies.

 In the beginning, we, and even more so the Ministry of Justice, had hoped for the research resulting in a typology of cases of domestic violence that would serve as guidance, or even as instruction for the selection and placement of the different types of cases -- either with the ATA, with some other kind of diversionary measure, or the full-fledged criminal procedure. Out of reasons yet to be explained, this was not fully achieved, or rather -- the results pointed to the requirement of a different strategy of placement.  But we did produce a typology of the restorative process, i.e. a typology of the handling of cases inside VOM (and also by other criminal law agencies) and the  effect produced on victims and offenders.[5]

3.  What kind of findings?   

Once more I present the core question to be answered by the research project:

What kind of short time and long-time effect of VOM (and of the criminal procedure) is to be expected under what kind of circumstances, defined by clusters or patterns of socio-economic and 'personal' conditions, and of sequences of events and interventions?

As already mentioned: we did not come up with a typology  informing the selection or placement of cases:

What became evident when analysing the qualitative material, was the fact that there were no clearly discernable criteria, that would guide a a-priori placement of cases -- as they come to the notice of the state prosecutors. In other words: Mediation proves feasible and useful in more cases than might be expected at first sight.

This first sight implies that we did start out with criteria mainly characterising the power relationship and the nature of the violent incidence within the relationship of the couple concerned. This typology was derived from an earlier analysis done in the course of the accompanying research mentioned. There we had come up with three types of of relationships and violent incidences that had come to the notice of  the agencies of criminal law.  

1/ Relationships where there is a tradition or routine of mutual physical violence; mutuality, of course, always implying the danger that the physically stronger partner, almost always the man, will severely hurt the female partner.

2/ Relationship where the incidence of violence constitutes an extraordinary and deeply disturbing event, often instigated by a constellation of acute and severe stress, and experienced also, and especially so by the perpetrator, as disturbing and distressing.

3/ Relationships where the domination of the male partner is demonstrated, ascertained and defended by the use of physical violence; the concrete incidence constituting just one of many acts of that kind.

I had arrived at the conclusion that mediation in cases of the third category is not feasible, and not advisable to be tried out as well. The domineering males (though the use of violence is, in fact, a sign of the domination endangered and already crumbling) cannot be reached by an intervention, aiming at insight and cooperation. And women living in these relationships cannot be empowered in the course of a short-time intervention. In these cases the fears and apprehensions of the women form the shelter movement might probably come true: the mediation procedure provides a forum for just another repetition of "more of the same" and could even further aggravate the spiral of violence.

These findings were not completely overthrown by the new client-oriented research, but they were significantly modified. The actors and especially the victim and her reactions and actions now come more clearly into view; they have acquired more contour. The decisive element in assessing the feasibility and suitability of mediation lies not with the power position and the behaviour of the violent partner, but rather the - inner and outer - situation and disposition of the woman and whether she can muster resources to break free from an oppressive relationship or alter it fundamentally. Sometimes this happens even after a long time and a long history of violence. Anyway, these facts and conditions are almost impossible to be assessed beforehand and based on reading the files only.    

I think we can get closer to an understanding of theses processes by turning to the typology that was derived from the qualitative analysis:  

The typology of the restorative process

1/  VOM as reinforcement of change  (Katharsis-cases);


Here we find two sub-types:

1.1. VOM reinforcing change as a mutual effort 

In these cases change happened in the aftermath of the incidence of violence that was experienced by both partners as outstanding and unusual, resulting in a kind of shock: The police has been called in by the woman or a third person - in several instances the police reacted by ordering the batterer to keep off the premises (it pronounced the so-called 'Rückkehrverbot', a kind of 'restraining order);  after some consideration, the partners have come to agree to stay together - but on different terms. They have started, predominantly initiated by the woman, the process of restoration. It is often painful, but it is under its way. In that situation, the offer of VOM is usually taken up readily, even eagerly. On the other hand, the conventional way of the criminal procedure - that has until recently been inevitable because of the principle of legality still in force within Austria's legal system - constitutes a nuisance, and a disturbance of the way they try to follow. The ATA procedure, as described earlier, opens a forum to repeat and to deepen the reflections and the deliberations already started in the course of events and interventions. This public or semi-public forum thus serves to confirm the rightful claim of a woman to have her physical integrity preserved also inside an intimate relationship and it becomes a demonstration of societal support for the norm. The major work is already done by the two of them. This is only confirmation, but since it is an external confirmation, based on a thorough understanding and intensive discussion of what has happened, what was done and what was experienced, it confers onto the private efforts and processes the quality of the approval by the wider society. The interviews with the clients have shown that the mediation session in most of these cases was highly satisfactory - especially for the women. I attempt to translate one of the statements done in the interviews:

(Frau Ortner) "It does good to be able to talk about the problems one has and that there is somebody who has a real, professional knowledge about these things. And I got the feeling that I had done the right thing. The way the people there reacted - I thought, 'ah, look they think it was o.k.' - because at that point you don't really know whether you have acted in the right way or not..."   

And Herr Ortner had told me: "At that point in time, when the two of us went there, (to the VOM-bureau) there was a kind of harmony working between the two of us; it was happening in a way I had not been aware of, really, I tell you...It had needed these talks  - these talks with another person, 'foreign-talks' ('Fremdgesprache'), that helped us to realize what we are and what we have together..."  

In this category we find the strong women. who take care of their lives and of their right to a life without violence.

1.2. VOM as a reinforcement of change enforced by the woman

This other subtype of the 'katharsis-cases' appear (also to the researcher) even more stunning.

There, the "kathartic effect" of an event that came to the notice of the agencies of the criminal justice system also came into being, but not so much because both partners made up their mind to work together towards a change of the relationship, but because the woman made up her resolution to end the relationship, to walk out on the man who had abused her - sometimes repeatedly, sometimes for quite a long time. But now she has decided:  "It is enough!" She calls in the police, and - most important - she prepares for separation or divorce, leaves the home  (in one case even the divorce was effected) and she succeeds in communicating her firm and undisputable intention to put an end to her sufferings. This in turn provokes and promotes a change of the batterer's ways. It is actually and literally 'deterrence' that is at work here: namely his strong fear of losing what he values and cherishes (and of course this works only, if the partner really cares for the wife, for the family, for togetherness). In these cases also, the  process of reformation is already on its way. The man has changed his behaviour: made a strong effort to get a job, fight alcoholism, take time with the family.

As with the first type, VOM acts predominantly as backing up and supporting the woman, as empowering her further by giving outside confirmation to her rightful claim.

In this group I saw the kind of mediation sessions that made me refrain from asking the partner for an interview. This was due to the attitude of men, men who were used to acting up strong, who were deep down, and also openly, convinced that it is a man's right to have his beer with his buddy's and then - at least sometimes - to shove, slap and beat his wife, and to force her to have sex when he feels like it. When the woman stood up against him, even threatened to leave him, he was desperate and he made a real effort to change his ways. But these men cannot reconcile this reformation with their male self-image. During the mediation session they steadfastly denied that they had changed their ways at all; they contended that the woman was exaggerating, that nothing serious had happened and nothing important had changed. By the way: if the denial is kept up, then the VOM procedure has to be laid off and the case handed back to the state prosecutor's - this happened in two instances. Often it was real hard work to break the defensive attitude of those 'family heads' and to come to a sensible and acceptable agreement - I saw a few of them with tears in their eyes and emotionally completely exhausted towards  the end of the procedure.

But the full meaning of the underlying dynamics I realized only, when  calling some of the women that had participated in the ATA at a later point in time. The change their men were so reluctant to admit, had lasted. Their resolution to bear their lot no longer had borne fruit. The question turns up - and was actually discussed - why the women had put up a long time with this lot, with being beaten and abused. In the cases that stand before my inner eyes - and one of the most impressive is that of a young Turkish woman, mother of four children - it was the lack of resources, predominantly economic dependency and the men stressing, insisting on and relishing in this dependency, that made them submit. The process of empowerment started with gaining at least a glimpse of hope of securing some assistance, and of getting a shred of self-reliance and independence. It still was a long way for these women: friends and other helping agencies were needed.

But were this process of gaining and asserting independence had started, VOM is the right instrument to join in, to provide reinforcement and supporting the 'rightful' claim. It works with and upon the growing self-confidence of the woman, it gives her a voice and promotes her active participation in the process of restoration.

This is one of my most important findings, derived from the analysis of the kathrasis-cases.   

VOM with its potential for empowerment can play an important role within an ongoing process that can be characterized as a 'spiral of empowerment';  this spiral empowerment corresponds and counteracts the (well-known) spiral of violence that often affects the lives of women.     

 

2/ VOM as the beginning of reformation: 

There is just one story within my research that comes under this heading: It is one of the most exciting though and it is well in tune with the overall tendency of the findings. The protagonists were both very young; I called them (these are ficticious names) Aaron and Bianca. In that case the mediation session, especially the 'talk of the four' - the 'mixed double' - , consisted to a high degree in restorative work, according to the German term "aufarbeitend"- working (even struggling) through.

 The story of Aaron and Bianca started with the young man playing down the incidence: It was just a little pushing and shoving between two lovers that where already at the brink of separating, that was the impression he tried to convey.  At the beginning of the single, separate talk with the female mediator, Bianca corroborated this story - before it became obvious that she had suffered from a severe damage: she had been in the hospital and for some time the doctors feared there might remain a brain damage - which luckily did not come true. But during the single talks she was continually changing her mood and her attitude: from complete indifference and carelessness ("I don't give a damn - I am not interested in whatever is going to happen") to shuddering at the memory of the incidence and telling the mediator that even now, whenever a friend just raises his arm,  she crouches in a corner whimpering 'don't hit, don't hit me' .   

 It was exciting to observe that the working principle of mediation, I have talked about earlier, the power of recognition that was offered and exercised by the male mediator during the "talk of the four",  made it possible for Bianca to become more explicit and more decisive about her needs and her expectations. Finally she asked, nay, demanded from Aaron to listen to her, to realize what he had done and what had happened to her as a consequence of that incidence.  And it was her appeal that finally put an end to his arrogant conceited manner during the single talks and the beginning of the mediation session. He arrived at confronting himself with the dark side of his person: He really had been out of his mind,  bashing Bianca's head,  he was capable of acting in that way, it could happen again. To become aware of this fact and to be prepared to do something about it, seek counsel and help, could be the beginning of change, of reform, maybe? The agreement between the two of them seemed of minor significance - no big thing - just coming together and talking about what had happened. 

The conditions for this effect of VOM to take place, had been favourable in this case. These were young people prepared to reflect upon their own behaviour and their relationship. Once they could be reached through the understanding, the recognition  that is at the core of the VOM procedure,  they were prepared to make an effort to work  toward change and restoration themselves.  

What I would like to stress, is the fact that also in this case the recognition and empowerment, the woman had received and experienced, served as a lever for the  young man to confront himself with his violent behaviour. For him this was the decisive step. As opposed to the attitude of the habitual and (at least seemingly) self-assured batteres of the type outlined above, he will not attempt to defend and justify violence. He had until to the time of the mediation experience closed his eyes on him being capable of acting violent. And that can, of course, become extremely dangerous.

3/ VOM supporting separation

There is an important contribution, the VOM procedure can make, not only to the prevention of further violence, but also to a real change of life arrangements and relationships. This is done through and by the propensity of the mediation procedure for 'reality-testing', that is the careful planning and negotiating of concrete future situations, taking into consideration the needs and interests of the clients.  

This was vividly illustrated by the case of a young couple, a student from a third world country and a clever and energetic young woman. Nevertheless she had found it hard to go through with a separation from her lover after a time of difficulties and an incidence of violence, she had experienced as very threatening. At the bureau of the Austrian VOM-services she found an audience that listened to her story out of the past and to the expression of her own feelings of guilt, of insecurity, rage and helplessness. Even for an apparantly strong woman, as Frau Elstner, this kind of semi-official support of her rightful claim that was communicated to her, but also to her ex-partner, is of prime importance. Finally she found support for negotiating those social arrangements that would help her to deal with future chance meetings with her former lover.  

4/ VOM at its limits:  

In this category we found cases where VOM had proved a futile effort: violence occurred again.

I will not flinch from going into the characteristic qualities or deficiencies of these cases. In fact, their analysis is even more important than the analysis of the successful cases, and I have invested a lot of time into this category. But I am afraid there is no space for presenting a more detailed analysis of case stories.

I want to say just that much: With these cases there was no chance for change, because a lack of resources prevented the short time intervention of the ATA from enfolding its potential.

It needs some resource that can be used in the process of empowerment. Utter destitution and helplessness leaves the mediators that can only act as instigators and facilitators helpless. There should be at least one resource, personal, social or material, that can be made use of and that can be converted into a change of the relationship - either by leaving it behind or by transforming its inner quality.

Two of the cases that are placed in this category  are thus characterized by a high degree of social and economic dependency of the woman.

In one case, that of Frau and Herr Albrecht, violence had  not been  present in the relationship for quite a long time. The incidence, where the sister of the woman had called the police, was rather serious though and an order to leave and not re-enter the premises against the man was issued. Frau Albrecht had after a few day's consideration decided to ask for withdrawing the order and Herr Albrecht came back to the family home. There are two small children, Frau Albrecht is on parental leave, her husband is in stable employment as a mechanic. She has two children from an earlier relationship that are placed with a foster family. Frau Albrecht wants to get back to work, her husband thinks it a bad idea, a mere whim, because she will not be able to earn any substantial income anyway. (At least in that respect the VOM-sessions have helped her and supported her plan as rightful and understandable. But she had a hard struggle to put up, to go through with this demand.) Herr Albrecht is obviously afraid to loose his wife, he dotes on her and he feels that she has lost interest in him; in fact the sexual relationship has completely broken down. During my interviews it became evident, that Frau Abrecht is just bearing up with her lot, but in her very heart waiting for a chance to end the relationship. She has been to a shelter after a further incident of dangerous threat, but she could not stay there because of organisational problems. With two small children and with very limited earning capacity she feels that she will not be able to go through with a divorce. Herr Albrecht has threatened to do everything to have her deprived of the custody of their children in case of a divorce. Since she has a record of problems with taking care of her elder children, this constitutes a very serious threat.  

The mediation procedure could not reach Frau Albrecht and it could offer no support or help to her. Frau Albrecht institution-wise; i.e. she has a lot of experience in handling and above all in keeping at a distance the institutions that have intervened in her life repeatedly, especially the social work agencies of the guardianship court. She could not be induced to speak openly about her anxieties, her desires and demands during the mediation session. She just wanted to get it over and done with. She uttered her conviction that nobody could help her, that she just had to bear up with her lot and somehow get along. The short-time intervention the VOM procedure constitutes, thus proved futile, a nuisance even. It could easily be the case that slowing down the whole mediation procedure  and a more careful preparation of the mediation session proper, would have been more appropriate in this case and experienced as more helpful by Frau and also by Herr Albrecht. The essential dilemma of Frau Albrecht though, who lacks the resources to end the relationship and the danger implied in Herr Albrecht becoming increasingly violent under the threat of losing his wife, lies beyond the scope of the VOM-intervention, very probably of any criminal law intervention.       


Another, even more depressing case is that of of a an older couple, Frau and Herr Werl,  where violence has occurred repeatedly. The man is an alcoholic, he is ill and draws an early retirement pension; the woman is handicapped - she is suffering from epilepsy. There is little money, and no hope for achieving her own income after work in a sheltered institution was discontinued. Herr Werl is good and very supportive whenever she has an attack of her disease and he is good with taking care of the little money -- the retirement pension and care benefits -- they have between the two of them. When he is drunk he beats her and abuses her - often severely. In addition to her present calamity, Frau Werl has a terrible past, with partners that had either abused her, incurred large debts,  or committed suicide. She had lost the capacity to take the helping hand. The only resource that I could discern, when observing the mediation procedure, was her friendliness and her readiness  to relate socially well with other people. In the mediation session, even more so in the separate talk with the female social worker, there appeared a glimpse of hope, that a change for the better might take place; a little bit of empowerment became visible and it was planned that Frau Werl could try to get  support by an agency taking care of cases like hers; the mediator had already contacted and recruited one of the social workers of that agency. This hope crumbled when confronted with the harsh daily reality. Of course, Herr Werl had intended, at least he had hoped to be able to abstain from drinking. But things have already gone too far the road downward - he drank again and she was beaten again. Before the observation period agreed upon after the mediation session was over, the new incidence of violence came to the notice of the procuracy. The steps taken into the direction of empowerment that I had observed and sensed during the mediation session did not find an environment to grow and to develop further. Everyday reality with its restriction and harsh demands, with its longstanding habits and its emotional entanglements swallowed and drowned what had been hesitatingly sprouting.    

These cases point to the necessity of some resources being accessible and at the disposal of a partner that has experienced violence. To break the spiral of violence and enter a spiral of empowerment needs some resource that can be further converted or made use of. The VOM intervention can become effective only, when there is willingness and potential for insisting successfully on a private life without physical violence. The process of empowerment starts outside the VOM intervention.  Those with no resources: no money, no qualification, in a state of dependency from a man that uses violence to hold her, to assert himself in his otherwise helpless and downgraded situation, or just to repeat the acts of violence he has become used to - where can there come help from? Probably the offer of support must start at an earlier point in time. At least, immediately after an incidence had come to the notice of the police, an effort to find means and ways of support must be looked out for. VOM might then play a role in taking care of this special event - but will remain of subordinate importance.

Summing up the findings as contained within the typology of the restorative process, I will state:

 

In the majority of cases VOM works as an - albeit important - contribution and as an enhancing factor within an ongoing process of change, of empowerment of the abused, or battered partner, usually the woman.

 

 

In that case, the short term-intervention that is VOM by definition, produces an effect in the way of an incentive, or a take-off event that starts more long-ranging  and deep-reaching effects or even better: processes of change.

 

Another way of looking at these findings might be to admit that what I have to tell, is probably not the success story of VOM usually announced: Not much is going on in the way of healing, or re-integrating, of visible effects of special/individual prevention. Nevertheless I will contend: VOM is apt to fulfill, or to promote, what - according to German sociologist Niklas Luhmann is  the core function of law: the affirmation of the norm. Affirmation of the norm means affirmation of the rightful, i.e. legally supported  claim of the victim (in civil law it is the complainant). In this legal-theoretical understanding, the victim is at the centre. It is about her we are talking; it is her suffering, her fears, her apprehensions, her anger, and her reaction to the acts of the perpetrator, that are taken care of by the the VOM-agencies.  

 

Change in the way of long lasting preventive effects does, as we have seen in this research, stem from the resolution of the woman, the victim: to bear no longer, to change the situation, and - in the most dramatic cases - to  end the relationship, to leave the partner using violence. The perpetrator either joins her in this effort to find new ways of communication and of living together, or the realisation of the danger to lose wife and family results in a sincere and strong effort to really change his ways.

 

In some rare cases, and probably more often with a young offender, VOM can spark off insight, self confrontation and the beginning of reform.

 

Finally I want to repeat another important inference to be drawn from this piece of empirical evidence:

 

For VOM, promoting and enhancing a process of empowerment, the existence of resources - of both victim and offender - is a prerequisite. Otherwise the intervention remains futile.

 

 

 

4. What recommendations to be derived from the research?

 


4.1. On procedural diagnosis or placement of cases

 

 

I have arrived at recommendations - for the lawmakers (in a limited sense and only insofar as directives, complementing the diversion package, were to be issued), and all the agencies involved in the VOM- practice. As already stated, I did not fulfill the expectation to present a typology of cases that would clearly tell the state prosecutors which cases were to be assigned to what kind of treatment or measurement.

 

Instead of such a list of criteria, I am proposing the procedural placement or diagnosis of cases to be done by the state prosecutors with the assistance and cooperation of mediation services and victim support services.

 

What is the meaning of  'procedural diagnosis', or 'procedural placement?' I have arrived at this recommendation as an inference from the main findings of my analysis: namely that the achievements of the VOM procedure can be effected in a wide range of cases - not only, albeit most strongly and most satisfactory where the incidence of violence was an outstanding event, that does not constitute the usual, everyday reality of the relationship. This effect consists predominantly in reinforcing empowerment and in support for gaining and preserving freedom from violence inside an intimate relationship. Whether the spiral of empowerment can be started, or intensified, cannot be assessed and guided by a fixed set of criteria, that are to be ascertained at the time the case comes to the notice of the state prosecutors.

 

It needs a whole range of interdependent features and conditions to become known, and be brought to the surface, to find the best way of handling the case and procuring further support. The assessment / the diagnosis itself should therefore be perceived and organized as a process. In its course - from step to step - the array and the sequence of interventions  has to be decided.  

 

 

 

4.2. On research as an interactive process

 

 

Another characteristic of the research is closely linked to the requirement of a procedural approach.

 

This type of research carries an obligation - for the researcher and for the agencies that were involved in the research.

 

First it implies more than just producing useful results: rather the researcher has to enter a process of exchange, a discourse with the actors and with the decision-makers of the processes, the protagonists of the innovative effort he has researched. Presenting his/her findings and interpretations of findings is the first step in this process. Then the actors are called upon to bring in their comments, to say what they regard as useful and as helpful, in which way they can deal with the researcher's interpretations, and what kind of modifications, or additions they deem necessary.   

 

According to my experience this is hard to implement - very often my call for commenting and discussing, what I had presented, when the task of compiling and analysing the material was finished, was and is met with some uneasiness. There prevails the opinion that the researcher is the one to know, the one to tell what is 'fact' and to tell what would be the right path to follow. 

 

But it is according to the spirit of mediation and of restorative justice that the people concerned are not to wait for some authority - not even the scientific authority(!) - to pass onto them a judgement by pointing to hard and "ultimate" scientific results. Everybody involved ought to trust in exchange and in "working through", in interaction, controversy, standing up to difference and conflict, not taking the easy way out by resorting to authoritarian judgement. I  am aware that it is not easy to  live up to these requirements, but I think we should try for it.


 

 

 

[1]  In Austria, VOM in cases involving juveniles was introduced by law -- the Juvenile Justice Act -  in 1988, following a pilot project and accompanying research that had started as early as 1985. Its success and the overall positive reactions, especially the high readiness of the victim's to join in the mediation effort led to setting up another pilot project addressing adult offenders and their victims; this project started in 1992.

[2] The scope of offences referred to VOM in the realm of domestic violence is predominantly that of "minor bodily injury" as defined by the Austrian Penal Code (§ 83 oStGB) and the so-called `dangerous threat’ (§ 107 oStGB). Though not explicitely excluded major bildily injury cases were not to be found in my sample.

[3]  By and large most women told about a change in police behaviour: they were quite content with the reactions and the treatment they had received. Complaints about negligence, about being turned down and about being treated contemptuously, came, when remembering earlier incidents of violence and appeals to the police for help. The more recent experiences were altogether different. Obviously the training the police-fficers, meanwhile also including women, have received in the course of the last five years in Vienna,has borne fruit.

[4]  If this appears as ascribing science and the scientist the quality of a superior judge, who knows better, I have to correct this perception - his/her point of observation is 'only' different (but not superior) from that of the persons involved - it is more remote because he/she sitting outside; his/her interpretations differ insofar as they are free from the burden of  action "handlungsentlastet" is the term Habermas (1973) uses. (Habermas, J., Wahrheitstheorien, in: Fahrenbach, H. (ed.): Wirklichkeit und Reflexion. Walter Schultz zum 60. Geburtstag. Pfullingen (Neske))   

[5]  A note on concepts and on the translation of concepts: I remember using up quite a lot of time in the beginning of our endeavours to set up the "European Forum for VOM and Restorative Justice" attempting to get a clear notion of what "restorative justice" means in different languages and different countries/societies. You could, of course, use the Latin "restorare" and leave it to the native speakers to explain it in more exhaustive terms; e.g. I have used for some time the German expression "wieder gut machende Gerechtigkeit" - justice that makes good again (the harm that has been done). Then I came across Clifford Shearing's article 'Violence and the Changing Face of Governance' that was translated by Claudia and by Trutz von Trotha as the editor of a volume on 'Sociology of Violence'. (special volume 37/1997 of the Kollner Zeitschrift fur Soziologie und Sozialpsychologie) Clifford Shearing talks about 'restaurative justice' (is it of any significance that it is written that way and not 'restorative'?)  as a movement that challenges the retributive use of state repression and violence with the intention of acting according to a situational, or actuarial logic of setting things right but at the same time attending to the symbolic function of the law by paying tribute to the personal feelings, hurts and losses 'out of the past'. Thus it presents a kind of dialectical (Hegelian) synthesis ("Aufhebung") of the modern logic of safety and insurance (Versicherungslogik), i.e. of setting things right in a way that will hinder future disturbances and transgressions and the old-fashioned retributive logic of reacting to 'crime' (Unrecht) through the infliction of pain. In other words:  It looks out for ways of answering the anger and the suffering of the victim not by inflicting punishment, but by instigating a process of  "restauration". "Restaurative" has been translated by the adjective 'aufarbeitend'. I re-translate: working through; "herstelbemiddeling" it is in Dutch. Anyway, all these terms and wordings point to a process of working together and working hard - on situational as well as personal aspects of what has happened. 

Christa Pelikan
Institute for the Sociology of Law and Criminology, Vienna

Created by: james
Last modified: 2009/02/24 09:50:31.965000 GMT+10