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Workshop on “Victim-Offender Mediation? ” For 2011 International Conference Crime Prevention and Offender Rehabilitation on 18th May 2011 Ms. Sylvia Siu,

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Presentation on theme: "Workshop on “Victim-Offender Mediation? ” For 2011 International Conference Crime Prevention and Offender Rehabilitation on 18th May 2011 Ms. Sylvia Siu,"— Presentation transcript:

1 Workshop on “Victim-Offender Mediation? ” For 2011 International Conference Crime Prevention and Offender Rehabilitation on 18th May 2011 Ms. Sylvia Siu, JP Deputy Chair of Society for Rehabilitation and Crime Prevention of Hong Kong Past President & Chairman of Board of Governor of Hong Kong Mediation Centre ADR Chairman of Hong Kong Federation of Women Lawyers

2 Siu Wing Yee, Sylvia, J.P. c/o Messrs. Sit, Fung, Kwong & Shum 18/F., Gloucester Tower, The Landmark, 11 Pedder Street, Central, EDUCATION B.S.C. (Bachelor of Science in Commerce), University of Santa Clara, U.S.A. M.B.A.(Master of Business Administration) University of Santa Clara, U.S.A. Diploma in Chinese Law, University of East Asia, Macau LL.M. (Master of Law), University of Hong Kong QUALIFICATIONS Solicitor of The Hong Kong Supreme Court Solicitor of The Supreme Court of United Kingdom Barrister and Solicitor of The Supreme Court of the Australian Capital Territory Barrister of The High Court of Australia Advocate and Solicitor of The Supreme Court of Singapore China-Appointed Attesting Officer by the Ministry of Justice, People's Republic of China Fellow of The Chartered Institute of Arbitrator and Hong Kong Institute of Arbitrators Limited Accredited Mediator of The Law Society of Hong Kong, Hong Kong Mediation Centre, the Hong Kong International Arbitration Centre and Centre for Effective Dispute Resolution (Commercial, Family Supervisors and Family Panels) Conciliator of Harbin Conciliation Centre of China Council for Promotion of International Trade Arbitrator of Suzhou, Guangzhou, Chengdu, Shenyang, HuiZhou, TsingTao Arbitration Commission Arbitrator of CIETAC Arbitrator of Wuhan International Arbitration Court Visiting Professor of University of Economics and Commerce of Hebei Guest Professor of Hebei Civil and Commerce Law Academy

3 ACTIVITIES WITHIN THE LEGAL PROFESSION The Law Society of Hong Kong Council Member Chairperson of CPD Accreditation Committee Member of Overseas Lawyers Qualification Examination Committee Member of Standards & Development Committee Hong Kong Federation of Women Lawyers President from 1987 to 1990, 1996 to 1999 International Relationship Chairman since 1999 ADR Chairman since 2001 Basic Law Institute Limited Council Member since 2001 Bar Association Free Legal Service Scheme Advisory Board Member ACTIVITIES RELATING TO ADR Hong Kong Institute of Arbitrators President ( ) Hong Kong International Arbitration Centre Advisory Council (as Law Society representative) ( ) Hong Kong Mediation Centre Founder and Chairman of the Board Governors Chief Justice’s Working Party on Mediation Member Secretary for Justice’s Working Party on Mediation Member Working Party on Reform of the Law of Arbitration in HK and Draft Arbitration Bill Member Chinese University School of Law ADR PCLL External Examiner (since 2009)

4 GOVERNMENT APPOINTED ACTIVITIES Town Planning Appeal Board Member since 2002 Vice Chairman since 2006 Financial Services and The Treasury Bureau Member of Investigation Panel A of the Hong Kong Institute of Certified Public Accountants (HKICPA) (since 2011) Action Committee Against Narcotics (ACAN) Member since 2009 ACTIVITIES RELATING TO COMMUNITY SERVICE The Society of Rehabilitation And Crime Prevention, Hong Kong Deputy Chairman Honorary Legal Advisor To: Hong Kong Young Women’s Christian Association Hong Kong Chinese Women’s Club Kowloon Women Organizations Federation Hong Kong Chinese Women's Club College Hong Kong Federation of Women Asian Pacific Counselling Association All-China Women’s Federation Hong Kong Delegates Association Limited International Dongguan Women Association GMC Hong Kong Members Association Ltd Tuen Mun District Women's Association Limited

5 What is Victim ("V") - Offender ("O") Mediation ("VOM")? Originated from indigenous people: Maori in NZ, Am. Indians, Hawaiian, + Australia’s Aborigines+ Canada’s 1st Nation people Restorative Justice (“RJ”) initiatives

6 JUSTICE (“J”) Retributive J V Restorative J RetributiveRestorative Focusestablish blame on guilt on past problem-solving liability, obligation on future NormAdversarialDialogue MeansPunish Deter / prevent Restitution to restore Reconcile CommunityOn sidelineAs facilitator

7 JUSTICE (“J”) Retributive J V Restorative J RetributiveRestorative JusticeDefined by right rulesDefined as right relationship InvolveProsecutor LawyerVictim + O + community EmphasisDo the crime, Do the time Accountability Healing Closure

8 Cont. What is VOM? address needs of crime V hold O accountable generally for less serious offences

9 Cont. VOM 3 basic requirements:- O accepts or does not deny responsibility for the crime Both V and O willing to participate Both V and O considers it safe to be involved in the process

10 Community Mediation (CM) V Victim Offender Mediation (VOM) CMVOM PartiesDisputants≠ Disputants 1 = Victim 1 = Offender FocusAchieve settlementDialogue (CM) = (VOM) Voluntary participation Extensive preparatory work Highly trained mediator Confidential (to extent allowed)

11 VOM Process Mediator meets V and O privately Help them to prepare for the joint meeting Ensure V not re-victimized O acknowledges responsibility and sincere in wanting to meet V

12 Cont. VOM Process Most effective if: (Direct) V and O meet face-to-face Accompanied by friend/supporter V invited to speak first : empowerment Express feelings directly to each other Develop understanding of situation Helped by trained mediator throughout

13 Cont. VOM Process Can be indirect: Mediator meets with V and O separately Direct contact between V and O not possible or not desired by V

14 Mediator's role Assist V and O to arrive at agreement which addresses needs of both and provides resolution to conflict

15 Benefits of the VOM Humanize the criminal justice process O = individual instead of “Criminal with a number” Face-to-face with V Difficult to rationalize crime Harm caused by crime = real

16 Careful preparation required VOM not appropriate for all cases Preliminary meetings enable screening Pre-meeting essential for case development Preparation of participants to assure safety and success Mediator to build rapport with V & O Ground rules help assure safety and respect

17 VOM FAILS IF: Mediator not sufficiently trained unclear goals or policies Inappropriate referrals unhappy participants requires passion / Commitment from parties guidelines not specific

18 A Story True Teenager witnessed father’s brutal death Unhappy for 17 years while O imprisoned After VOM, at peace within At peace OR At War = A Choice

19 Experience in Canada Dept. of Justice (“DOJ”) DOJ Partners with:- Other federal government agents Provincial & territorial government Various RJ Programs

20 Cont. Experience in Canada Good RJ Program have:- Well trained facilitators Sensitive to needs of V & O Know the community in which crime took place Understand dynamics of Crim. Justice System

21 Cont. Experience in Canada Pitfall:- Time consuming Emotionally draining

22 Experience in USA Victim Offender Restorative Justice Program (“VORP”) RJ philosophy Referrals = Probation Dept Police Dept Schools Ack. Crime injures : V & their families O & their families Communities

23 Cont. VORP (USA) Benefits to V: Opportunity find out about O help amends to confront O with human impact of offence have questions answered by O Receive appropriate restitution Opportunity to ask for apology Opportunity to be seen as a person Empowered Opportunity to feel justice Obtain closure May avoid court

24 Cont. VORP (USA) Benefit to O: May avoid prosecution in appropriate case Realize personal harm to V Opportunity to make amends to V Alternative to court system Opportunity to restore self-image Opportunity to express remorse + apology / explanation To be seen as a person

25 Cont. VORP (USA) Benefit to community: Saves court costs + time reduce recidivism Humanize crime for O Respond immediately to crime Partners with Justice System Safer environment Trained mediators = benefit neighborhood Impact of incarceration on community

26 Cont. VORP (USA) Benefit for Justice System: Meets V’s needs ↑sense of justice + satisfaction with the criminal justice system ↑ pub’s exp of justice & ↑ pub. Satisfaction with the criminal justice system

27 Report of VOM in Texas (pub. in 2009) (on juvenile cases) Best Practices: 1. Voluntary Participation 2. O admits guilt 3. All parties prepared before Mediation (“M”) 4. Neutral & trained Mediator employed

28 Report of VOM in Texas (pub. In 2009) Recommendation for VOM programs :- 1. All programs should utilize trained impartial mediators 2. Mediators trained with recognized M training standard to ensure consistent guidelines 3. Mediators to have thorough understanding of juvenile justice system & rights of all parties involved in M 4. Voluntary participation of juveniles & V 5. Available to O both prior to disposition & while under supervision

29 FINLAND’s Experience Next International Conference of European Forum (June 2012) in Finland Petition "Sign up for RJ" 2081 signatures →VP of European Commission Mediation in Finland Regulated by Act on Conciliation in Criminal and Certain Civil Cases (“The Act”), since June '06 Supervision, mgt + monitoring of M services by Ministry of Social Affairs and Health.

30 Cont. FINLAND’s Experience Regional state admin. agency obliged to arrange M services + ensure available M off. receive cases + cooperate w/ var. auth. throughout M process Mediator may deal with crimes assessed as eligible for M. Before undertaking M, the M off. must det. if crim. case suitable for M Cases not dealt by M incl: serious offences, complex or hard-to-solve gang-related cases, drug offences and professional crime.

31 Cont. FINLAND’s Experience Case Referring: 78% crim. cases by police 18% by public prosecutors 0.2% by parents Criminal cases referred to M in '09 54% = offences under pub. prosecution 46% = complainant offences Total: crim. + civil cases Mediated cases: Involved: people criminal suspected offenders 276 civil 9234 complainants

32 Cont. FINLAND’s Experience Domestic Violence (“DV”) cases 9% of all cases referred to M 85% : assault 80% referred by police 20% by public prosecutors By the Act: only police + pub. prosecutor authorized to refer such cases to M. DV mediation is a clearly defined process voluntary mediators have taken extensive training course

33 Cont. FINLAND’s Experience With M on DV, head of M office makes separate assessment on suitability for M. Unsuitable if : one party pressured the other dismissed or denied offence. Separate meetings must be arranged for V and suspected O Discontinue M if unsuitable as above

34 Hong Kong's special scheme Police Superintendent Discretion Scheme Juvenile offender <18 committed an offence sufficient evidence to charge him/her with the offence police may take him/her to Juvenile Court OR Police Officer of Superintendent rank or above exercise discretion to issue a caution to juvenile O instead of taking him/her to court O must be under Police’s supervision for 2 years or until reaches 18, whichever is shorter

35 Cont. Hong Kong's special scheme Police Superintendent Discretion Scheme Factors: 1. Evidence available sufficient to support prosecution 2. O voluntary & unequivocally admits offence 3. O & his/her parents/guardians agree to the cautioning 4. Nature, seriousness & prevalence of offence 5. O’s previous criminal record 6. Attitude of O’s parents/guardians 7. Attitude of complainant

36 Against VOM in Civil Justice System will say VOM = $ buys freedom! Truly voluntary participation? Cultural difference, won’t work here! V may not want to confront O, non starter! Who/how to administer the programs? How much funding?

37 Cont. Against VOM in Civil Justice System will say VOM is not suitable for all case Limited cases, benefit small sector only. Tempering with witness? Not enough data to prove it works!

38 CONCLUSION: How to join hands to promote VOM? Start with helping youths?

39 Thank You Sylvia Siu :


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