Anyone who has taken even a casual interest in California politics will undoubtedly be aware of the state’s increasingly dire prison overcrowding dilemma.  The State is under orders from the U.S. Supreme Court to reduce its prison population by as many as 30,000 inmates,  and is now compelled to comply with that order in the midst of a crippling budget deficit. One possible solution to the crisis is to increase the role that mediation and other alternative forms of dispute resolution play in the criminal justice system. This paper will explore victim-offender mediations, the drawbacks to these programs, and will discuss the application of the STAR model to mediations between prosecutors, criminal offenders, and victims of crime.
History of the Problem
California’s prisons are, by any definition, overcrowded. The state’s prison system, designed to house roughly 80,000 prisoners, has at times swelled to house as many as 160,000 inmates.  In May of 2011, the Supreme Court ruled in a 5-4 decision that conditions in California prisons were so horrendous that they constituted a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment.  The decision called to attention the "needless suffering and death" which the prisons’ failing medical and mental health institutions produced, and highlighted the miserable conditions in which prisoners at these facilities were forced to live.  These failings, the court held, were largely due to immense overcrowding within the statewide system. As a result, the court affirmed an order by a federal court requiring the state to reduce its prison population to 110,000 inmates, or by approximately 30,000 inmates.  In April of 2013, Governor Brown returned to court to argue that he had accomplished the court’s objective, and that the state’s prison emergency was over.  A three-judge panel rejected Brown’s contention, holding that the state would not be released from the court-imposed limitation on its number of inmates. Furthermore, the court held that California must develop a detailed plan to carry out their order.  The panel threatened to hold the state in contempt if the defendants "[did] not take all steps necessary to comply [with the order] . . . ."
Following that order, California has spent over $1 billion in an attempt to overhaul its correctional facilities, its medical and mental health institutions, and to reduce the number of inmates housed at correctional facilities.  Along with the judges’ official ruling, California lawmakers have been inundated with suggestions from advocacy groups as to how the state might reduce its prison overcrowding problem. These solutions have included the implementation of drug courts, the reformation of sentencing laws, and the investment in diversionary outreach programs.  The common goal of many of these programs is simple: reduce the number of inmates, but these programs and solutions offer to do that in various ways. Reforming sentencing laws might make certain offenses punishable by lower terms in prison, investing in diversionary outreach programs would attempt to divert the course of potential inmates’ lives before they commit crime and become incarcerated, and drug courts would attempt to keep non-trafficking users out of prison through court-monitored treatment programs.
A New Solution
What if, however, one of the solutions to California’s overcrowded prisons rested with an entirely different process than courts, juries, and mandatory sentences? The alternative dispute resolution practice of mediation has increased in popularity within the United States in recent years, and has become an integral step in the litigation process for many civil practitioners.  In spite of this success, mediation’s popularity has been largely confined to the civil  realm. Many of the applications of mediation in criminal law have thus far been limited to the post-judicial involvement phase of a criminal matter, that is, the mediation stage of most criminal matters takes place after a jury has ruled on a case, or at least after a judge has taken control of a case’s progress.  If mediation seeks to arrive at solutions without burdening the court system, then the less court involvement the better. By structuring a particular criminal justice system to allow for certain types of cases to bypass the traditional method of resolution (judges, juries, bailiffs, and the rest) and instead proceed to a mediation phase, that system might be able to reduce prison overcrowding, alleviate certain budget deficits, and cut the rate of criminal recidivism.
Current Uses of Mediation in the Criminal Justice System
We first turn to examine current examples of mediation as employed in the criminal justice system today. Largely, mediation has been confined to cases dealing with minor property crimes, misdemeanor offenses, and juvenile offenders. In the case of juveniles, mediation’s role (and benefit) ought to be clear: When an offender is young, society is more likely to accept the notion that the offender might learn from their mistake, and benefit from a rehabilitative course of action. When it comes to adult offenders, however, society is less likely to be as lenient. One must simply turn on a twenty-four hour news channel or read the opinion page of the local newspaper to witness examples of the "tough-on-crime approach" directed towards suspects and offenders. It is therefore unsurprising that mediation in adult criminal matters has largely been confined to small property crimes. 
Drawbacks to Mediation in Criminal Procedure and Law
There are several drawbacks to using mediation in criminal law. Criminal prosecutions are substantially different from civil matters in several regards: The first hurdle mediators will have to face when involving themselves in the criminal justice system will be the concept of Labeling Theory. This psychological theory posits that titling or labeling an individual as a "criminal" promotes the very behavior that the criminal justice system is designed to correct—that is, that individual is more likely to behave like a criminal, and engage in criminal activity.  In the case of criminal prosecution, this may affect an individual’s willingness to engage in plea bargaining  , but ultimately is not a great hurdle for prosecutors, who do not rely on the cooperation of the defendant during the trial phase of a case.
With mediators, however, the stigma attached to being labeled a "criminal" could present a problem. Crimes, especially serious ones, frequently carry harsh consequences for those convicted of them, by trial or by plea. Felons lose the right to vote, may not purchase firearms, are disqualified from jury service and cannot hold elected office, and can lose any number of professional licenses or permits.  Furthermore, in a job market that favors employers, many felons will not make it past the background check stage of any serious employment consideration. Many individuals are aware of these consequences, and may be hesitant to willfully engage in a process that could lead to such a label attaching. Mediators often engage with clients who face harsh consequences, and must develop strategies for keeping the client focused on the fact that mediation allows the client to reach a more favorable result than litigation. Similarly mediators should focus on that aspect of a criminal mediation. For example, a mediator might highlight the fact that criminal trials can be long, arduous, expensive—assuming the individual is not indigent—, and very public. In the case of a criminal mediation, as with any civil mediation, there are laws which have likely been violated, and for defendants it is a matter of navigating the potential consequences, rather than avoiding all consequences. In the same vein, a criminal defendant that wishes to plea or mediate has already committed a crime, and is now simply attempting to deliver for himself the least unfavorable result. A mediator should explain this reality to her clients, and highlight the benefits of mediation over the alternative: a criminal prosecution and trial. These include the fact that avoiding prosecution, keeping the negotiation active, and engaging in mediation are all forms of retaining control over the process.  In contrast, the mediator should explain that a jury or bench trial presents all parties with a very unpredictable outcome. Additionally, some prosecutor’s offices have policies that once a preliminary felony hearing has been conducted, their attorneys will no longer plea bargain with defendants. This fact further increases the lack of control a suspect (or victim) retains over the process as compared to civil matters. The parties should be congratulated for taking the crucial first step in agreeing to mediate the matter.
Perhaps the greatest obstacle in the way of mediation’s successful integration into the world of criminal law is a societal, rather than procedural, one. Many lawmakers, and indeed many in the public itself, seem to vie for a form of retributive justice. This model of justice seeks to meter out punishment because defendants "deserve" it, and seeks to correct an individual’s crime against society, rather than an individual or victim.  An alternative approach towards criminal justice is one that seeks to address the needs of the victim, the offender, and the community, known as the restorative model of justice.  It is this ethos which provides the moral rationale behind mediating with criminal defendants. Offenders benefit very little from retributive justice, and victims are left largely out of the process as well. Under a restorative model, there is room for victim-offender mediation: a process by which both the accused and the injured are involved in finding a solution. There are over 300 victim-offender mediation programs in the United States alone, and approximately 700 internationally. 
Criminal Mediations and the STAR Mediation Model
The next portion of this paper will explore the integration of a particular model of mediation into a criminal mediation. One effective mediation process is known as the "STAR Mediation Model." The model is comprised of 5 stages, as demonstrated on this chart.http://viaconflict.com/wp-content/uploads/2012/05/B-P021_star_model.jpg
The Convening Stage
At the convening stage, the mediator works to build an initial rapport with the parties.  Due to the nature of a criminal mediation, the pre-mediation conference that sometimes accompanies mediations will likely be mandated by the referring court. This will be necessary for several reasons, including the fact that criminal defendants will need to waive or postpone their right to a jury trial and agree to the voluntary mediation process. It is at this stage that the mediator will explain the logistics of the mediation to the parties.
Depending on the type of criminal mediation, the mediator will be faced with one of two tasks. If this is a mediation solely between a prosecutor and the defendant (and his attorney), the mediator will likely have worked with the representative from the prosecutor’s office in the past, and will therefore need to focus her attention on earning the trust of the defendant, and possibly his counsel as well. The mediator should seek an affirmation of willingness to cooperate again here, and define her role, making sure to stress that she is not the defendant’s attorney, but instead a neutral third party. It is important to stress the voluntary nature of the mediation, and inform the defendant that she (the mediator) has no power to compel the defendant to do anything.
Another type of mediation is that which involves the victims as well. Victim-offender mediations sometimes occur outside the presence of the prosecutor’s office, and instead focus on reconciliation and rehabilitation between the two parties. After the mediation is over, but before the scheduled trial date, the mediator will meet with a prosecutor to discuss the recommended case disposition.  In these cases, the mediator will need to not only explain her role to the defendant, but must clarify her position with the victim as well. This dynamic makes the statement of impartiality and neutrality all the more important, just as in a mediation regarding civil matters. In California, the mediator will also have to be sure that all aspects of her mediation comply with Marsy’s Law, or the California Victim’s Bill of Rights.  This means that it will likely be the responsibility of the mediator to ensure that the victim is treated with fairness and respect for his or her privacy and dignity, and to guard against the defendant intimidating the victim during the proceeding.  Marcy’s Law would also likely bar the state from forcing the victim to attend mediation in the first place. 
The Opening Stage
After convening the mediation between the parties, the mediator should proceed to her opening. In a typical mediation, the opening stage is designed to structure and outline the proceedings by detailing the various stages of the mediation, as well as providing an overview of the process.  This overview includes a statement regarding the confidentiality and neutrality of the process. A mediator should explain her role as a facilitator, and inform the parties that the contents of the mediation are confidential, both in joint sessions as well as private caucuses which may occur. The mediator should also explain the ground rules of the process, making sure the parties understand that they ought to remain diplomatic throughout the mediation and speak in turn, rather than engage in shouting matches with one another.
Due to the emotional nature of many criminal cases, it will be especially important for criminal mediators applying the STAR method to secure a promise from the parties that both sides are willing to follow the ground rules. The parties’ opening statements, which immediately follow the mediator’s, will be the first chance for the parties to present their cases during the mediation, and it will be important for the mediator to secure the cooperation of the parties from the outset of the discussion.
In any mediation, a mediator ought to have prepared for the mediation by reading the parties’ briefs and familiarizing herself with the issues surrounding the dispute. This applies to mediations involving criminal defendants as well. The agenda should include a discussion of the events that led to the criminal acts in question (as well as the mediation), the relationship between the victim and the defendant if there is one, the impact of the criminal act on the victim and defendant, and the range of possible solutions that account for the needs of the victim and the offender. Once the mediator has opened the mediation and set the agenda, the mediation with then proceed to the communicating stage of the STAR model.
The Communication Stage
In the communication stage, the mediator is ordinarily tasked with helping the parties express their varying positions, interests, goals, frustrations, and needs in a coherent and progressive manner. This stage does not attempt to ignore the fact that a party may be angry, but attempts to redirect the focus of the parties on moving towards a solution.  This presents an incredible challenge to the mediator. She will need to listen to the parties, ask them questions, summarize their perspectives, and attempt to keep the focus on the mediation’s agenda, all while managing the expectations of both parties and attempting to keep their emotions in check. This will likely prove to be no less challenging for mediators working with criminal offenders and their victims. The mediator will have to make effective and wise use of caucuses—private sessions where the mediator engages in a discussion with one party (and his counsel) away from the opposing party—all while taking special care that the private sessions do not make one party feel alienated.  If a victim feels as though the mediator is spending too much time with the offender outside of her presence, she may lose faith in the mediator’s neutrality, and integrity of the process. By the same rationale, if the offender feels as though the mediator is ignoring him and focusing too heavily on the victim, he too may feel as though the system is designed to work against him. Maintaining a balance within the conversation, and keeping the parties focused throughout the communication stage, will be critical to the success of the mediation.
To that end, London Deanery has developed a question funnel which may aid in the mediator’s attempts to communicate between the victim and offender. The model of this funnel is designed to open with a broad question—which allows for a wide array of answers—and then follow up with clarifying questions, probing the speaking party to elicit specific information.  Throughout this process, it is critical that the mediator listen to the parties. This should be accomplished with proper body language—attentive postures and eye contacts—, responsive and involved words, and by constantly evaluating the new information coming in from the parties.STAR Mediation Model - Part 3 - Question Funnel
One factor that may hinder the ability of a mediator to effectively help the two parties that arrive at mediation is the mediator’s personal feelings towards the victim, the offender, or the subject matter. Criminal prosecutors and defense attorneys are often confronted with difficult and distasteful subject matter in their work,  and as a third party neutral overseeing two parties to a criminal offense, mediators working with criminal offenders will be as immersed in this world as a criminal law attorney. It is important to set aside—to a degree—personal feelings that surround the subject matter, the victim, or the offender. One scholar’s comment on this dilemma that applies especially in a criminal mediation is the following:
Whether there is such a thing as pure neutrality or not, we know, and our clients know, that when we commit to being neutral, we are committing to not intentionally promoting one party‘s interests at the expense of another. When we choose to play that role, we must truly honor it, and the fact that we have a choice and decision to make about whether to put ourselves forward as a third-party neutral should only emphasize how important that commitment is. 
Both the victim and the offender in mediation are taking a risk by agreeing to the process. For those of us who have studied it, mediation is at least some degree of a familiar process, with its component parts and recognizable actors. Mediation, for many individuals who find themselves involved in the process, represents uncharted waters. The offender may view the mediator as yet another member of the criminal justice system—a system he naturally distrusts—, and his inclination may be to look for any behavior on the part of the mediator that conforms to his preexisting belief that this individual is someone who is not actively looking out for his best interest. This is known as confirmation bias, a psychological phenomenon which explains the tendency of people to interpret new information as evidence confirming their preexisting beliefs.  A good mediator ought to recognize the potential for this type of behavior, and should conform her behavior to address those concerns. Like the offender, a victim may be in the uncomfortable position of unfamiliarity with the process of mediation. She may mistrust the system for reasons similar to an offender’s, whether she suspects the mediation system is biased against victims and in favor of offenders, or believes that mediation represents a "slap on the wrist" for the offender, in light of a just sentence in a court of law. It will be important for the mediator, during the communication stage, to represent to the offender that she will be fair and is not present to act as an iron fist against his interests, while simultaneously assuring the victim that the process is not designed to help the offender escape justice or the consequences of the crime he has committed. Because victim-offender mediation seeks to conform to the restorative justice model, which attempts to address the needs of the offender as well as the victim,  the natural contrast with the more familiar retributive justice model may strike the victim as odd, ineffective, or under responsive to her needs.
The Negotiation Stage
Once the mediation has progressed through the convening, opening, and communication stages of the STAR model, it is time for the negotiation stage. This is when the mediator may be the most tested in ordinary mediations, and may prove especially difficult during mediations with criminal offenders.
One aspect of negotiating that may not be intuitive, but which develops over time is the concept of hidden agendas, feelings, or interests of the parties. While there may be some interests which are plain from the outset of the mediation—an offender likely does not want a lengthy prison sentence, a prosecutor is likely interested in negotiating a stiff sentence, etc—, sometimes the parties may have hidden motivations or incentives that they have not made their attorney or the mediator aware of.  The parties may not wish to divulge this information in front of the opposing parties, so if a mediator begins to suspect that this dilemma may be present, she may wish to take the parties aside in private caucuses and further explore potential hidden motivations.
In criminal cases, these motivations may be especially potent. A defendant may have a past conviction that has remained undiscovered that he does not want the prosecutor to find out about  or may be concerned about losing a job, or custody of children. These are issues that arise which a prosecutor or crime victim may not be aware of, and which could very easily affect an offender’s willingness to bargain or the manner in which he conducts himself during the negotiation stage. Without the mediator’s navigation of these types of issues, they can become stumbling blocks to the progress of the mediation, and can often times derail the negotiation entirely,  especially if the opposing party, unaware of the particular reason for the hindrance, grows angry at their opponent’s apparently irrational opposition to a particular point of the negotiation.  This pattern, if not interrupted, can poison the process and risk jeopardizing the entire mediation, but through skillful questions and effective use of private caucuses, an experienced mediator can discover these hidden agendas and work with the troubled party to find a solution.
In some cases, the mediator is tasked with providing a particular party with a "reality testing" of the situation.  In cases involving alleged sexual harassment, it may mean telling an executive that his manager’s documented statements will be condemning at trial; in a landlord-tenant dispute, it may mean telling the tenants that their settlement demands for their landlord virtually guarantee no offer from the defendant, and in a criminal mediation, it might mean a host of grim realities for the parties involved. A criminal defendant may not wish to accept that he will almost certainly face some jail time, or a victim may need to hear that she appears to be asking for too much restitution from her offender. It will be the job of the mediator to discuss with the parties, privately, the time, cost, and hidden expenses of failing to settle through mediation.  With criminal offenders, this risk is clear: a criminal prosecution is a long, arduous, and stressful process for both offenders and victims. For prosecutors, the risk can be equally dire. No matter how strong his evidence, a prosecutor who takes his case to trial risks the unpredictable nature of a jury verdict. For the mediator, presenting the negative ramifications of a jury trial to the parties, and stressing the loss of control that follows, can be an effective means of guiding the parties through certain impasses which might arise.
The Closing Stage
Finally, the mediation will progress to the closing stage. The primary goal of this stage in an ordinary mediation is to reach a substantive agreement that satisfies both parties, to a degree. In victim-offender mediation, that satisfaction reflects a victim and offender who have both retained some degree of control over what is normally an untamable bureaucratic process.
The STAR mediation model has given mediators a structured method for working with parties in an attempt to facilitate a settlement agreement, and may be of help to those seeking to apply the same strategies to victim-offender mediations. The status quo is broken in California’s justice system, and as politicians and civic leaders search for solutions to the problem, mediation may offer a viable alternative method of dispute resolution between the state, its criminal offenders, and their victims. By exploring a variant of the STAR model of mediation, these neutrals may be able to contribute towards one piece of the solution to California’s budget crisis, and help a state in need develop a sustainable method of criminal dispute resolution.