Source: (2004) Idaho Law Review. 40: 571-622

In the United States, the use of mediation for criminal cases is becoming more frequent. It is no longer limited to juvenile cases, lesser adult criminal cases, and so-called victim offender programs. An increasing number of attorneys and judges are employing mediation to resolve felony cases of many types, including murder. At the same time, even modest growth in the frequency of criminal mediations sparks questions and controversy little found in the context of civil law and mediation. To help foster a careful consideration of the emerging reality of criminal mediation, Maureen Laflin in this article explores some of the central questions and concerns raised about criminal mediation. She first discusses the distinctiveness of criminal mediation under the following headings: the nature of mediation; restorative justice and victim offender mediation; and voluntary settlement conferencing, or case-management mediation. This leads to her examination of concerns about case-management mediation in the criminal context with respect to the following: stakeholders and participants in the mediation; the role of the victim; judges as mediators; the defendant and the defendant's counsel; prosecutor resistance; and the lack of effective privilege rule.