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The Use of Mediation to Resolve Criminal Cases: A Procedural Critique

Brown, Jennifer Gerarda
June 4, 2015

Source: (1994) Emory Law Journal. 43: 1247-1309. Reprinted in Restorative Justice. Declan Roche (2003), ed. Pp. 197-259. The International Library of Essays in Law & Legal Theory, Second Series. Aldershot, Hants, England: Dartmouth/Ashgate.

In the past in Western legal systems, criminal offenders could settle with their victims to avoid prosecution. As Brown puts it, this sort of privatized criminal justice process still survives in modern day victim-offender mediation (VOM). VOM moves the victim from the periphery to the center of the criminal justice process. Thus, according to Brown, the victim controls the offender’s fate. Brown maintains that putting control in the hands of the victim is inconsistent with the character and purpose of the criminal law as it has evolved since ancient times. As such, VOM disserves the interests of the victim, the offender, and the state. As she explains why this is so, Brown argues in this article that mediation should be decoupled from the criminal justice system. That is, the success or failure of mediation should have no impact on issues concerning the prosecution or punishment of the offender.


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