Mediating Citizen Complaints Against Police Offiers: A Guide for Police and Community Leaders

U.S. Department of Justice

Office of Community Oriented Policing Services

Mediating Citizen Complaints

Against Police Officers:

A Guide For Police and Community Leaders

Authors:

Samuel Walker

Carol Archbold

Leigh Herbst

Department of Criminal Justice

University of Nebraska at Omaha

2002

www.cops.usdoj.gov

2 Table of Contents

Mediating Citizen

Complaints Against

Police Officers:

A Guide For Police and

Community Leaders

Authors

Samuel Walker

Carol Archbold

Leigh Herbst

Department of Criminal Justice

University of Nebraska at Omaha

2002

Suggested Citation

Walker, Samuel, Carol Archbold and Leigh Herbst, Mediating Citizen

Complaints Against Police Officers: A Guide for Police and

Community Leaders Web Version (Washington, DC: Government

Printing Office, (2002).

i Table of Contents

Table of Contents

Section Page

Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii

About the Authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vii

1 Mediation: Definition and Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

What is Mediation? Defining our Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Goals of Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

2 Potential Benefits of Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

Benefits for Police Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Benefits for Citizen Complainants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Benefits for Police Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

Benefits for Community Policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Benefits for Complaint Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Benefits for the Criminal Justice System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

3 Key Issues in Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

Voluntary Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

Case Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

Mediating Racial and Ethnic-Related Complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Mediating Complaints by Women . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

Potential Language and Cultural Barriers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

Case Screening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

Police Discipline and Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24

Getting Both Sides to the Table . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25

Creating a “Level Playing Field” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

Insincere Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28

Mediators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29

Role of Lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

Mediation Session . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32

Case Outcomes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34

Documentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36

Enforcement of Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36

Widening the Net? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37

Danger of Unrealistic Expectations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37

Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38

Mediating Citizen Complaints Against Police Officers

4 Existing Citizen Complaint Mediation Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39

Survey Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39

Survey Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41

Minneapolis: A Model for Mediation Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48

An International Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52

5 Planning For a Successful Mediation Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55

Elements of the SDPD Planning Process: A Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55

Ongoing Monitoring & Evaluation: Research Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64

6 Traditional Citizen Complaint Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65

Citizen Complaint Procedures in Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65

Development of Traditional Citizen Complaint Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68

Characteristics of Traditional Citizen Complaint Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . .69

Mediation as an Alternative to Traditional Complaint Procedures . . . . . . . . . . . . . . . . . . . . . . .73

7 Mediation and the ADR Movement in America . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75

ADR Movement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75

Disputes in Everyday Life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76

Origins of the ADR Movement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .78

Mediation in the Criminal Justice System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82

Effectiveness of Mediation and Other ADR Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91

References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

iii Acknowledgments

Acknowledgments

his report was supported by Grant 1999–CK–WX–1016 from the Office of Community

Oriented Policing Services (COPS), U.S. Department of Justice (DOJ). Points of view or

opinions contained in this document are those of the authors and do not necessarily

represent the official position or policies of the U.S Department of Justice.

We thank the COPS Office for providing the funding to conduct this research project. In particular,

we thank former Director Tom Frazier for his commitment to this project. We also thank Megan

Murphy, our original grant Manager, and Rita Varano, our current grant Manager, who were always

helpful and supportive. As the final version of this report was being prepared, the principal author

experienced a significant health problem. He is most grateful for the support and understanding of

everyone at COPS during this difficult period.

In Minneapolis, Minnesota, we thank Chief Robert Olson of the Minneapolis Police Department,

Pat Hughes and staff members of the Minneapolis Police Civilian Review Authority, and all the

mediators at the Minneapolis Mediation Program for taking time to meet with us.

In Rochester, New York, special thanks go to Todd Samolis, Andrew Thomas, Fred Chase, all the

mediators at the Rochester Center for Dispute R

esolution, and the Rochester Police Department.

In Portland, Oregon, Captain Brett Smith, members of the Portland Police Association, David

Little and Linda Hunter at the Portland Neighborhood Mediation Center

, and Mike Hess and

Robert Wells of the Mayor's Office all made our visit informative and enjoyable. Special thanks go

to Officer Andrew Edgecomb for providing an opportunity for a ride-along.

In New York City, Ray Patterson and other staff members of the New York City Civilian

Complaint Review Board (CCRB) contributed to our understanding of the benefits of

using

mediation to resolve police-citizen disputes. Vivian Berger, who mediates cases for the New York

City CCRB, also provided us with a tremendous amount of information about the process of

mediating disputes between police officers and citizens.

In San Diego, California, we thank Lieutenant Chris Ball, Detective Joe Bulkowski, and all the

members of the San Diego Mediation Action Committee for per

mitting us to observe the

implementation process of the San Diego Police-Citizen Mediation program. Virginia Van Meter at

the Regional Community Policing Institute took the time to offer numerous helpful suggestions for

the final version of the report.

In San Francisco, Mary Dunlap and her staff at the Office of Citizen Complaints spoke with us and

answered our questions about mediation.

In Berkeley

, California, Barbara Attard, Director of the Police Review Commission, contributed

valuable insights based on her long experience with citizen ov

ersight agencies in Berkeley and San

Francisco.

Finally, we thank the many staff members working in mediation programs around the country who

took our telephone calls, answ

ered our questions, and provided us with both information and

valuable suggestions for other potential sources of information.

v About the Authors

About the Authors

amuel Walker is Isaacson Professor of Criminal Justice at the

University of Nebraska at Omaha. He is the author of 11 books

on policing and criminal justice. His most recent book is Police

Accountability: The Role of Citizen Oversight. He has also been

engaged in research and technical assistance on early warning systems

for police departments. He is currently Director of the Police

Professionalism Initiative at University of Nebraska Omaha. His web

site is www.policeaccountability.org.

arol Archbold is Assistant Professor of Criminal Justice at

Marquette University. She earned her Ph.D. at the University of

Nebraska at Omaha. Her dissertation and current research

involves risk management and legal advisors for police departments.

eigh Herbst is a Post-Doctoral Fellow in Criminal Justice at the

University of Nebraska at Omaha, working with the Police

Professionalism Initiative. She earned her Ph.D. at University of

Nebraska Omaha, completing a dissertation on police-community

relations in a small midwestern community impacted by the

development of a large food processing plant and subsequent addition

of a large Hispanic population.

vii Introduction

Introduction

ediation, along with other alternative dispute resolution (ADR) methods, has

emerged in America as a popular means of settling disputes (Singer 1994).

Mediation is widely used in divorce cases, employee-employer disputes, small

commercial disputes, and many other areas of life where disagreements and conflicts arise.

In general, participants have found mediation more satisfying than going to court or

enduring some other formal procedure; it is usually quicker, more efficient, and less

expensive. In addition, and perhaps most important, mediation has the potential to build

understanding and lessen conflict between people. For all these reasons, mediation has

obvious applications in resolving citizen complaints against police officers.

Although mediation is widely used in many areas of American life, few programs offer

mediation for citizen complaints against police officers. Mediation is a complex enterprise,

and many obstacles can arise in the course of establishing a program. For example, a broad

consensus of opinion exists among experts in the field that not all citizen complaints

should be mediated, especially use of force complaints. In addition, experienced mediators

generally find that citizen complaint cases differ from other kinds of cases they have

mediated because of the police officer's inherent power. Moreover, many police officers are

unenthusiastic about using mediation to resolve citizen complaints, fearing they may be

forced to admit to things they did not do. This misconception is largely due to a lack of

understanding of what mediation is and how the process works.

Clearly, communities must address these and other issues before establishing a mediation

program. T

his report explores these and other issues in an effort to help police and

community leaders develop successful mediation programs. Chapter 1 defines mediation

and describes its goals. Chapter 2 discusses the potential benefits of mediation. Chapter 3

discusses the various key issues involved in a mediation program. Chapter 4 describes

existing mediation programs and the reasons for their success or failure. Chapter 5 offers a

guide for planning a mediation program.

Mediation: Definition, Process, and Goals 1

Chapter 1

Mediation: Definition, Process, and Goals

Introduction

This chapter defines mediation and other forms of dispute resolution,

describes the mediation process, and discusses mediation goals.

What Is Mediation? Defining Our Terms

Disputes can be resolved in many ways, for example, by ignoring

them, continuing to fight, or going to court. Mediation is a specific

form of alternative dispute resolution (ADR). This report defines

mediation and other ADR procedures as follows:

Mediation involves the informal resolution of a complaint or dispute

between two parties through a face-to-face meeting in which a

professional mediator serves as a neutral facilitator and where both

parties ultimately agree that an acceptable resolution has been reached

(Maxwell 1994). The proposed Uniform Mediation Act defines

mediation as "a process in which a mediator facilitates

communications and negotiations between parties to assist them in

reaching a voluntary agreement regarding their dispute"

(National

Conference of Commissioners on Uniform State Law 2000).

Many sources define mediation and

other ADR procedures. See, for example,

Singer (1994); Goldberg, Sander, and

Rogers (1992); and McGillis (1997).

There is, however, a trend toward

mandatory mediation. See Kovach (1997).

Conciliation involves the informal resolution of a complaint or

dispute with a third party serving as a go-between, but without a face-

to-face meeting between the disputing parties, and the complainant

ultimately agreeing that the matter has been satisfactorily settled

(McGillis 1982).

Arbitration involves the resolution of a complaint or dispute through

a formal nonjudicial proceeding before an independent arbitrator,

where the final decision is binding on both parties (McGillis 1982).

Hybrid processes combine elements of mediation and other ADR

methods. Several hybrid processes exist, for example, court-ordered

mediation, which is part voluntary and part involuntary (Goldberg,

Sander, and Rogers 1992).

This report discusses only the mediation of citizen complaints.

2 Mediating Citizen Complaints Against Police Officers

Mediation is powerful

because both the

complainant and the officer

can gain an understanding

of why the other person

acted as he or she did.

— Barbara Attard, Director,

Berkeley (California)

Police Review

Commission

The Mediation Process

Mediation is a process for settling disputes based on the voluntary

participation of the disputing parties

. It emphasizes dialog between

the parties and is a safe environment where the parties can meet and

air their views about the events or issues that created the dispute. The

process is intended to develop mutual understanding between the

conflicting parties. Finally, mediation gives the participants control

over the final resolution of the problem (Folberg and Taylor 1984).

A neutral third party, a trained professional mediator, facilitates the

mediation process. The mediator does not try to influence or pressure

either party to reach an agreement or resolve the dispute in any

particular way. The disputing parties own the process.

Mediation is a confidential process. Statements made by any of the

parties may not be subsequently used in a formal legal proceeding.

Thus, each side can freely discuss the issue at hand. The mediation

process is summarized in figure 1–1.

Fig. 1–1

Why Should You Choose Mediation?

Mediation is a process in which people meet together with

the assistance of a neutral mediator to resolve their

differences. It gives both parties a chance to work together

to develop a mutially agreeable resolution with the stress,

time, and expense of going to court.

Our satisfied clients say:

“The mediator was professional and the solution we

reached was fair.”

“We couldn’t have solved this without your expert help.”

“Mediation was not only cheaper, it was far less stressful

than going to court.”

Fair

Quick

Results

fordable

Accessible

Confidential

Commitment

Trained Mediators

Neutral atmosphere

You make the agreement

Most cases reach agreement

Source: Minneapolis Civilian Review Authority. Used by permission.

3 Mediation: Definition, Process, and Goals

Is mediation the way to go?

Absolutely.

— Minneapolis Police

Federation, Show Up

(August 1998)

Goals of Mediation

The basic goals of mediation differ from those of traditional, formal,

and legalistic dispute resolution procedures, including traditional

procedures for resolving citizen complaints. Traditional dispute

resolution focuses on factfinding, pinpointing responsibility,

determining guilt or innocence, and punishing those found guilty.

Traditional citizen complaint review procedures, for example, focus on

determining whether or not the officer committed the alleged

misconduct. In contrast, mediation focuses on understanding, problem

solving, and reconciliation.

Understanding

Experts on citizen complaints against police believe that many formal

complaints, and other problems stemming from police-citizen

interactions, are largely the result of misunderstanding or

miscommunication.

A recent report on victim-offender mediation programs explains that

under mediation "the issue of guilt or innocence is not mediated"

(Umbreit and Greenwood 2000). The point is to build understanding

between the two parties involved.

Problem Solving

Mediation can be considered a form of problem solving, similar in

orientation to other innovative police problem-solving programs

(Bayley 1994). Problem solving through mediation involves identifying

the factors that led to the complaint in the first place. These factors

might include misunderstanding, failure to communicate, or

inappropriate behavior. A 1995 report published by the Police

Executive Research Forum describes various areas in which

collaborative problem solving incorporated mediation to help resolve

gang disputes, domestic violence incidents and incidents involving

noncompliance with restraining orders, and interdepartmental

personnel problems, especially race-related problems

(Glensor and Stern 1995).

Reconciliation

Reconciliation involves reaching some agreement that the two parties

have listened and gained a better understanding. As previously

mentioned, the agreement may include a formal apology by either or

both parties. To achieve these goals, the process emphasizes listening

and dialog.

5 Potential Benefits of Mediation

Chapter 2

Potential Benefits of Mediation

Introduction

Mediation of citizen complaints against police officers presents

numerous potential benefits for police officers, citizen complainants,

police accountability, community policing, the complaint process itself,

and the criminal justice system. Note, however, that the benefits

identified in this chapter are potential benefits, in that citizen complaint

mediation programs have not been systematically evaluated (see

Walker and Archbold 2000). The potential benefits are summarized in

box 2–1.

Box 2–1

Potential Benefits of Mediation

Benefits for Police Officers

1. Better understanding of interactions with citizens.

2. Opportunity to explain actions to citizens.

3. Greater satisfaction with complaint process.

4. Empowerment.

5. Chance to learn from mistakes.

Benefits for Citizen Complainants

1. Greater opportunity to meet goals.

2. Greater satisfaction with complaint process.

3. Better understanding of policing.

4. Empowerment.

Benefits for Police Accountability

1. Greater responsibility for one's actions.

2. Positive changes in police subculture.

Benefits for Community Policing

1. Goals consistent with those of community policing.

2. Problem-solving process.

3. An opportunity for dialog.

Benefits for Complaint Process

1. More efficient complaint processing.

2. Cost savings.

3. Higher success rate.

Benefits for the Criminal Justice System

1. More trust in justice system.

2. Lower crime rate.

6 Mediating Citizen Complaints Against Police Officers

Benefits for Police Officers

Potential benefits of mediation for police officers include enhanced

understanding of interactions with citizens, the opportunity to explain

their actions to citizens, enhanced satisfaction with the complaint

process, empowerment, and the opportunity to learn from their

mistakes.

Better Understanding of Interactions With Citizens

Mediation can enhance police officers' understanding of their

interactions with citizens. This benefit is a direct consequence of the

face-to-face aspect of mediation. Traditional complaint investigation

procedures do not involve a face-to-face meeting between

complainant and police officer, thus offering no opportunity for the

officer to hear the complainant's side of the story and gain perspective

on how his or her actions affected the complainant. In traditional

citizen complaint review procedures the complainant and the officer

never meet face-to-face, and as a consequence there is no opportunity

for dialog and understanding (Walker 2001).

Several mediation officials interviewed for this report said that many

officers, by participating in a mediation session, learned how their

behavior affected people. Although officers are generally reluctant to

concede wrongdoing, many say "Gee, I learned something today" or

"I just didn't realize how that affected him" when speaking to

mediation officials after a session.

A mediator for the New York City Civilian Complaint Review Board

(CCRB) points out that “[e]ven if the officer and the citizen will not

meet again, the officer will meet [other] citizens in the future.” In

short, what officers learn from the mediation process may affect their

future interactions with citizens.

Although anecdotal evidence suggests that police officers learn about

citizens by participating in mediation, whether this knowledge

translates into better interactions with the public has not been

determined. As mediation becomes more widespread, it will be

possible to design studies to investigate the actual results of

mediation.

7 Potential Benefits of Mediation

Opportunity To Explain Actions to Citizens

Mediation provides police officers with an opportunity to explain what

they did and why. In the traditional complaint review process

, officers

are required to explain themselves to investigators–from either internal

affairs or a citizen oversight agency–but they have no opportunity to

talk directly to the complainant.

Police officers regard themselves as professionals who take pride in

their work. They do not believe they did anything wrong in most

complaint incidents. One mediation official quoted an officer as

saying, "I want to explain why I acted that way. I am not a bad

person." Another officer was quoted as saying, "I am a professional. I

have a job to do." Mediation may help officers understand that,

although what they did on the job is proper, how they did it may offend

people.

Greater Satisfaction With the Complaint Process

Traditional complaint investigation procedures often fail to satisfy

officers or citizen complainants. Research shows that rank-and-file

police officers are alienated from their own internal affairs units.

Publicly, they vigorously oppose external citizen oversight; privately,

they oppose oversight by internal affairs as well. Internal affairs

investigators are widely regarded as “headhunters” out to get officers.

In many departments, officers perceive them to be biased investigators

who treat favored officers preferentially and are tough on "less

popular" officers (Mulcahy 1995; Chemerinsky 2000).

The Vera Institute study of the complaint process in New York City

included a series of interviews with police officers who had been

subjected to complaint investigations. It found deep dissatisfaction

among the officers. Ironically, their criticisms were almost identical to

those of the citizen complainants. Officers viewed investigations as

biased against them and expressed a strong desire for face-to-face

meetings with complainants. In particular, they wanted an opportunity

to explain their actions to citizens (Sviridoff and McElroy 1989a).

Research conducted in other countries has found that informal dispute

resolution provides police officers with greater satisfaction than

traditional methods. For example, in Queensland, Australia, more than

three-fourths of the police officers participating in informal resolution

reported they were "very" or "fairly" satisfied with the outcome of

that process (Holland 1996a). In other words, mediation may be a

more satisfying experience for officers and may benefit them further

by improving morale.

After mediation, the officer

was so pleased with the

mediation process that he

wrote a paper about it and

presented it to the entire

Police Board.

— California Citizen

Oversight Official

8 Mediating Citizen Complaints Against Police Officers

Empowerment

Experts in mediation believe that it empowers each of the parties

inv

olved by providing a "safe space," protected by rules of

confidentiality, where they can freely express their feelings and

opinions. In this setting, mediation empowers police officers by

allowing them to take an active role in shaping the settlement of the

complaint. By agreeing to participate in mediation, listening,

expressing their own views about the events in question, and

proposing the terms of a final agreement, officers are empowered to

take responsibility for resolving the problem.

In traditional complaint procedures, which are based on a criminal trial

model with an emphasis on determining guilt, officers are reluctant to

say anything that could be interpreted as an admission of guilt. This

includes saying they are sorry. Traditional processes disempower

officers by rendering them passive subjects of investigation rather

than active participants in resolving the underlying dispute. Mediation,

however, creates an opportunity for self-expression and participation

(Schwerin 1995).

A Chance To Learn From Mistakes

Existing mediation programs offer a tangible benefit to police officers

who choose to participate. If mediation is successful, the complaint

does not appear on the officer's personnel record. In effect, mediation

functions as a diversion program, analogous to diversion programs in

the criminal process (Nimmer 1974). Like traditional diversion

programs, mediation gives officers a chance to learn from whatever

mistakes they made and move forward in their careers.

In some police departments, officers

are ineligible for promotion or other

personnel actions while a citizen

complaint is pending. Mediation can

provide a speedier resolution of citizen

complaints and thereby may also reduce

morale problems arising from blocked

career opportunities.

Benefits for Citizen Complainants

Mediation offers several potential benefits for citizen complainants,

including an enhanced opportunity to meet goals, greater satisfaction

with the complaint process, enhanced understanding of policing, and

empowerment.

Greater Opportunity To Meet Goals

Mediation may meet the goals of many citizen complainants better

than traditional complaint review procedures. Despite the enormous

controversy over citizen complaints, relatively little attention has been

paid to the goals of complainants. Why do people file complaints

against police officers? What do they want? What can they realistically

expect to get?

9 Potential Benefits of Mediation

The limited research on the goals of people who file complaints

against police officers suggests that mediation meets complainant

goals better than traditional complaint procedures. The Vera Institute

interviewed 371 citizens who had filed complaints with the New York

City CCRB. The study found that only 20 percent of the complainants

had "serious" goals, defined as wanting to have the officer punished.

Most of the complainants (60 percent) had "moderate" goals; that is,

they wanted some kind of disciplinary action taken against the officer

but did not want him or her fired. The remaining 20 percent of

complainants had "mild" goals; for example, most simply wanted to

report the incident (Sviridoff and McElroy 1989b).

In a series of focus groups in Omaha, Nebraska, individuals were

asked to discuss whether they would file a complaint in response to a

hypothetical incident of police misconduct and what they wanted to

achieve if they did. Many participants indicated a desire for an

explanation or apology from either the officer or a responsible official,

or they wanted an opportunity to express their views to the officer in

person. In New York City, few participants wanted the targeted officer

fired (Walker 1997).

Finally, the Alberta Law Enforcement Review Board found that in

some instances, "all the citizen wants is an apology" and that

mediation provides the officer with a forum in which to "explain to a

citizen why he or she acted in a particular manner" (Alberta Law

Enforcement Review Board 1997).

I don't want the officer

disciplined. I want a

conversation.

— Citizen complainant,

Portland, Oregon

Overall I think that

mediation is the most

satisfying solution to

nonviolent, less serious

cases because being able to

understand the situation

and maybe even getting an

explanation from the other

side can help people get

over what happened.

— Mediation Program

Official

Greater Satisfaction With Complaint Process

Because mediation meets the goals of many citizen complainants

better than traditional procedures, complainants are more likely to be

satisfied with the entire complaint process.

One of the basic goals of citizen complaint procedures is a

satisfactory experience for complainants. Other goals include

thorough and fair investigations of complaints, sustaining valid

complaints, punishing officers guilty of misconduct, deterring future

misconduct, improving public attitudes toward police, and enhancing

the professionalism of the police department (Walker 2001).

Research indicates that complainants who choose mediation do report

higher levels of satisfaction than those who choose the traditional

process. A study conducted in the United Kingdom found that 30

percent of complainants were "very satisfied" with the mediation

10 Mediating Citizen Complaints Against Police Officers

process compared to none of those whose cases were formally

investigated (Corbett 1991). Finally, a study conducted in Queensland,

Australia, found that about 35 percent of complainants were "very

satisfied" with mediation, compared to 16 percent of those whose

complaints were formally investigated (Holland 1996a).

It is really hard to hate [people]

face-to-face, especially if they

are trying to explain why they

acted or reacted the way that

they did.

— New York City Citizen

Oversight Official

Better Understanding of Policing

Interviewed mediators reported that mediation offers citizens an

oppor

tunity to gain new understanding of the incident about which

they had complained, as well as policing in general. Barbara Attard,

Director of the Berkeley Police Review Commission, explained that

mediation "is powerful because both the complainant and the officer

can gain an understanding of why the other person acted as he/she

did" (Attard 1999). Mediation officials in another city described a case

in which the officer simply explained that he was suffering from job-

related stress and was "having a bad day" on that particular occasion.

Apparently, the citizen was able to relate to the officer in a new way,

seeing him as another person trying to do his job under unfavorable

conditions. In another case in that city, the discussion centered on why

the officer chose police work as a career, giving the citizen a new

perspective of the officer.

One mediator cited a case involving a sergeant who, returning from an

extremely stressful call (colloquially referred to as a "dead baby call")

and feeling very upset, tailgated a car, ticketed the driver, and used

inappropriate language during the interaction. The officer's behavior

was indeed inappropriate. The mediation session, however, provided

an opportunity for the officer to explain the circumstances of the

incident and for the citizen to understand the effect of job stress on

the officer's behavior.

The common theme in these examples is that mediation helps citizens

penetrate the stereotypes about police officers. A major part of the

police-community relations problem in America is that citizens and

police officers often stereotype each other, reacting to symbols such as

a uniform and badge or certain street clothes. Vivian Berger, who has

mediated cases in New York City, explained that some complainants

enter mediation thinking they want to teach the officer something but

end up learning something themselves.

11 Potential Benefits of Mediation

Empowerment

A major benefit of mediation for participants is the feeling of

empower

ment, or being heard by the opposing party.

The proposed

Uniform Mediation Act highlights the empowerment aspects of

mediation by explaining that it involves an "informed self-

determination by the parties" (National Conference of Commissioners

on Uniform State Law 2000). Self-determination is one of the core

ingredients of mediation. Complainants who choose to participate in

the process may terminate it at any point if they are dissatisfied. They

also play a direct role in shaping the final resolution, which by

definition must be one they are satisfied with. Evaluations in Australia

and the United Kingdom found that citizens felt empowered when

they were able to confront the police officers against whom they had

filed complaints (Holland 1996a; Corbett 1991).

For information about the concept of

empowerment, see Bush and Folger (1994)

and Schwerin (1995).

Benefits for Police Accountability

Greater Responsibility for One's Actions

Mediation introduces a new dimension to police accountability. In

traditional complaint procedures, an officer accused of misconduct is

directly accountable only to other police officers: inter

nal affairs

investigators, the immediate supervisor, and, in some instances, the

chief of police (Walker 2001). The officer never has to directly face or

account to the citizen who has filed the complaint. In contrast, an

officer participating in mediation is directly accountable to the citizen

who filed the complaint. Mediation may help personalize American

policing.

Positive Changes in Police Subculture

Mediation may also enhance police accountability by having a long-

term effect on the police subculture. The police subculture is

characterized by an "us versus them" perspective that views citizens in

a hostile light. Its most serious manifestation is the "code of silence,"

by which officers refuse to report misconduct by other officers

(Skolnick 1994; Westley 1970). This characteristic of the police

subculture works against building or maintaining a respectful, trusting

relationship with citizens. Therefore, only major changes would

motivate police officers to become more receptive to informal dispute

resolution techniques such as mediation. Because of the face-to-face

aspect of mediation, the experience of having to account for one's

actions directly to the complainant, and the opportunity to learn how

one's actions affect people, mediation may eventually have an effect on

the police subculture.

12 Mediating Citizen Complaints Against Police Officers

Benefits for Community Policing

Goals Consistent With Those of Community Policing

Mediation of citizen complaints can also strengthen community

policing efforts. In fact, mediation is consistent with the basic

philosoph

y and goals of community policing.

The core philosophy of community policing is that police

departments should develop close working relationships with

community residents, develop partnerships on specific issues or

problems, and work to overcome the alienation and distrust of police

that often manifest themselves in citizen complaints (Bayley 1994).

Both community policing and mediation emphasize the values of

cooperation and collaboration, the goals of learning and

understanding, and the process of problem solving (Nicholl 2000a).

Unfortunately, traditional citizen complaint review systems often

compound the frustration and anger felt by many complainants for

several reasons, including delay, lack of information about the status

of the complaint, and lack of opportunity to meet face to face with a

responsible official. Mediation, hopefully, can satisfy complainants and

thus build the trust and confidence essential for effective community

policing (see box 2–2).

Box 2–2

Benefits of Mediation for Community Policing

Mediation promotes

1. A philosophy of openness.

2. Partnerships with community agencies.

3. Problem solving.

4. Dialog between police officers and citizens.

The mediation services are

an essential part of COP

(Community-Oriented

Policing) in Portland. It

helps strengthen the police-

community relationship, and

it educates citizens about

changes in policing.

—Portland (Oregon)

Mediation Official

Problem-Solving Process

Mediation is a form of problem solving in that the officer sits down

with the person who has filed the complaint, discusses the events that

led to the complaint, and works out a m

utually acceptable

understanding with the complainant. Mediation also becomes a way to

strengthen the "partnership" between police officers and citizens in

communities that identify with community policing philosophies and

practices (Glensor and Stern 1995). In her report on community

justice, restorative justice, and community policing, Caroline Nicholl

explains that community justice "is shifting criminal justice from a

purely adversarial approach to include problem-solving methods"

(Nicholl 2000a).

13 Potential Benefits of Mediation

Benefits for Complaint Process

More Efficient Complaint Processing

One of the most serious problems with traditional complaint

investigation procedures is a dela

y in reaching a final disposition. This

problem affects both internal police complaint procedures and

external citizen oversight agencies. In some police departments,

investigations take an average of 13 months to complete. The old

Washington, D.C., CCRB (abolished in 1995) was successfully sued

because some complaint investigations were taking as long as three

years. Delay causes dissatisfaction in both complainants and police

officers. In some police departments, officers cannot be considered

for promotion while a complaint against them is pending (Walker

2001).

Mediation can provide a relatively speedy resolution to a complaint.

Once a complaint is referred for mediation, it is simply a matter of

scheduling a session at a mutually convenient time. This eliminates the

time-consuming process of locating and interviewing participants and

witnesses and then reviewing all the reports. Mediation sessions

typically last one hour.

We have built a good

relationship not only with

the community but also

with the local police

department. So we have a

partnership on both sides.

— West Coast Mediation

Official

Cost Savings

Mediation is much less expensive than traditional complaint

investigations. The Minneapolis Civilian Review Authority (CRA) pays

a flat rate of $2,000 a year to the Minneapolis Mediation Center to

provide mediators, who work pro bono, to handle police cases. In

Minneapolis, each successful mediation case cost $153 in 1998 and

$133 in 1999. Costs in Portland, Oregon, were around $150 per

successfully mediated case. The proposed budget for the San Diego

Police Department mediation program was a total of $5,000 for the

first year. Even if only 10 cases were successfully mediated the first

year, the resulting cost of $500 per case would be substantially less

than the cost of a formally investigated case. An annual caseload of

about 40 would bring the cost per case in line with Minneapolis and

Portland (San Diego Police Department 2000).

14 Mediating Citizen Complaints Against Police Officers

Little systematic information exists on the costs of traditional citizen

complaint investigations, however, and, consequently, putting

mediation in a meaningful cost context is difficult. The best estimates

were developed by the Minneapolis Redesign Team evaluation of

CRA. The team estimated that complaints investigated by CRA cost

an average of $3,649 in 1996, whereas cases investigated by the police

department's Internal Affairs Division cost an average of $6,278. (One

conclusion of the evaluation was that, in light of these data,

abolishing CRA would not save the city of Minneapolis any money,

because current cases would have to be picked up by the police

department at a greater cost per case.) The redesign team compared

CRA's average cost per investigation to the costs in Berkeley,

California, ($8,571 per case) and Pittsburgh, Pennsylvania, ($872 per

case) (Minneapolis Civilian Review Authority 1997).

In a report on citizen oversight of police produced for the National

Institute of Justice, Peter Finn obtained cost estimates for complaint

investigations in nine different citizen oversight procedures. The

estimated cost per complaint investigation varied tremendously, partly

because the agencies surveyed were not comparable in terms of their

formal responsibilities. Three oversight agencies with responsibility for

conducting their own investigations reported per-case costs of $4,864

for the Berkeley Police Review Commission, $3,171 for the

Minneapolis CRA, and $2,237 for the San Francisco Office of Citizen

Complaints. Why this estimate for the Berkeley Police Review

Commission is half that obtained by the Minneapolis Redesign Team

is unknown. However, the discrepancy highlights the difficulty in

obtaining reliable data regarding the cost of complaint investigations

(Finn 2001).

The Alberta [Canada] Law Enforcement Review Board (1997)

estimated that informal resolution of an average complaint was $1,000

less than the average cost of a formal investigation.

Although more detailed studies are needed, mediation is clearly

substantially less expensive than traditional complaint investigation.

15 Potential Benefits of Mediation

Higher Success Rate

Only about 10 percent of all citizen complaints are sustained, meaning

that the investig

ation upheld the complainant's allegation against the

officer or officers (Pate and Fridell 1993). Citizen oversight agencies

with independent investigatory power also have low sustaining rates

(Walker 2001). Community activists regard this rate as evidence that

internal police complaint investigation procedures are inadequate and

possibly even "whitewashes" of police misconduct.

Low sustain rates are an inherent aspect of complaints against police.

In many cases, no independent witnesses to the event and no forensic

evidence, such as medical records, exist to support the complaints.

These complaints are often characterized as "swearing contests"

between two parties. Because officers are innocent until proven guilty,

the complaints cannot be sustained (see Walker 2001).

Unsustained complaints generally leave both parties unhappy:

complainants feel their issues were not adequately addressed and

police officers feel they were falsely accused.

Mediation offers an alternative to this situation. When a citizen

complainant is satisfied with the results of mediation (e.g., he or she

spoke, was heard, and received an explanation or perhaps an apology)

–the process can be counted as a success.

Benefits for the Criminal Justice System

Mediation may also enhance public confidence in the criminal justice

system and thus help reduce the crime rate. Procedural justice research

suggests that people with greater confidence in the criminal justice

system are less likely to break the law (Tyler 1990).

Procedural justice scholars also indicate that people exposed to the

criminal justice system are at least as concerned about the fairness of

the process as they are about the outcome, and they may be more

concerned about process issues. That is, their sense of justice depends

not entirely on whether they win or lose but on whether they are

treated fairly, have a chance to express their point of view, and have a

sense of control over the process.

Mediation offers these opportunities and thus may enhance citizen

confidence in the complaint process, the police department, and the

criminal justice system. This in turn may contribute to better police-

community relations and the success of community policing efforts.

Key Issues in M

ediation

Chapter 3

Key Issues in Mediation

Introduction

Developing a successful mediation program requires careful

consideration of key issues. Most existing programs do not mediate

many cases, and some mediate none at all. We believe this situation is

a result of failure to adequately address key issues associated with the

mediation of citizen complaints against police officers (Walker and

Archbold 2000).

This chapter discusses these key issues and is based on (1) a review of

official documents associated with existing mediation programs,

(2) interviews with officials associated with mediation programs, and

(3) a review of the literature on mediation, alternative dispute

resolution, and citizen complaints against police. In terms of

addressing these issues, those actively involved in citizen complaint

mediation agree on all but a few of the points. We have used our best

judgment regarding the best approach for the more controversial

issues.

Voluntary Participation

Voluntary participation is essential to the mediation process. Law

professor Kimberlee Kovach, one of the leading experts in ADR,

characterizes self-determination and freedom of choice as "the

bedrock of the mediation process" (Kovach 1997).

Realistically, however, participation in mediation is more voluntary for

the citizen complainant than for the police officer. The complainant

can choose not to file a complaint at all, to withdraw a complaint at

any time, and to terminate a mediation process. However, if an officer

declines to mediate the complaint or withdraws from the process, the

complaint will be investigated in the traditional manner, and the

complaint will appear on his or her official record. In short, the officer

cannot make the complaint disappear completely.

Box 3–1 shows the

voluntary aspects of mediation for citizens and police officers.

Some experts, however, believe that

mediation of at least some court cases

should be made mandatory; others believe

that this would be contrary to the basic

idea of mediation. See the discussion in

McGillis (1997).

Scholars have noted that a similar

element of coercion affects many "court

attached" forms of mediation. See

especially the observations in Tomasic

(1982).

18 Mediating Citizen Complaints Against Police Officers

Box 3–1

Voluntary Aspects of Mediation

For the Citizen

Filing complaint Yes

Choosing mediation Yes

Withdrawing from mediation Yes

Actively participating in

mediation session Yes

Shaping final settlement Yes

Agreeing to final settlement Yes

Making complaint "go away" Yes

_________________________________

N/A = not applicable.

For the Police Officer

N/A

Yes

Case Eligibility

Virtually everyone interviewed for this report and most experts in

ADR in other areas of life (e.g., divorce, commercial disputes) agree

that some categories of complaints should be ineligible for mediation.

As one expert put it, "not all disputes should be mediated"

(Maute 1990).

Seriousness of Allegations

Experienced complaint mediation officials generally agree that use-of-

force allegations should be ineligible for mediation. Police officials

support this position.

In an exception to this approach, the

New York City Civilian Complaint Review

Board (CCRB) conciliated some use for

force cases in the 1980s. Generally, these

were cases that had been investigated

and where there was insufficient evidence

to sustain the complaint. See Sviridoff

and McElroy (1988).

Most mediation programs (Washington, DC; San Francisco;

Minneapolis, others) do not mediate use of force complaints

(www.occr.dc.gov). The Minneapolis Civilian Review Authority (CRA),

however, has made exce

ptions for cases in which the citizen was not

injured. In contrast, the New York City Civilian Complaint Review

Board (CCRB) mediates complaints involving officer threats to use

force (as long as no injury occurred), to seize property or damage

property, to stop and frisk someone, and to notify children's services

agency. The New York City CCRB has been criticized by the New

York Civil Liberties Union for this policy (New York City Civilian

Complaint Review Board 2001). A few programs mediate use-of-force

complaints.

We support the policy that complaints involving use of force and

threats to use force should not be mediated. Based on conversations

with experienced mediators, we do not endorse the mediation of

complaints involving threats by police officers. People in the

mediation field agree that no complaint involving potential criminal

charges against the officer should be eligible for mediation.

19 Key Issues in Mediation

Officer Complaint History

Cases involving officers with a history of citizen complaints should be

ineligible for mediation. The New York City CCRB does not refer a

case for mediation if the officer has been named in three citizen

complaints in the past 12 months. The Minneapolis CRA does not

mediate a complaint in

volving an officer who has participated in

mediation "for a serious similar misconduct allegation or a similar

misconduct allegation within the previous 12 months" (Minneapolis

Civilian Review Authority 1990). In Washington, DC, officers can

mediate only one complaint in a twelve month period

(www.occr.edu.gov). This policy prevents an officer from avoiding

departmental discipline for repeated misconduct, which is a valid

concer

n. Mediation programs could expand on the Minneapolis

guidelines by disqualifying officers with a recent history of a specified

number of sustained citizen complaints or use-of-force incidents.

Mediating Racial and Ethnic-Related Complaints

One of the most sensitive mediation issues is complaints alleging the

use of offensive language or other prejudicial treatment related to

race, ethnicity, and gender. Some people argue that complaints

involving allegations of racial, ethnic, or gender slurs should not be

mediated at all. As a matter of policy, for example, the San Francisco

Office of Citizen Complaints does not mediate complaints involving

allegations of racial, ethnic, or gender slurs. This policy represents a

decision to treat such complaints as seriously as use-of-force

complaints.

The racial and ethnic aspects of complaints is often broader than the

formal allegations. Although few complaints involve specific

allegations of offensive racist language, many complaints involve

underlying racial/ethnic issues. As Vivian Berger, an experienced

mediator in New York City, puts it, "While many complaints are not

officially about race, they are really about race."

That is, the formal

complaint may involve an allegation of discourtesy or failure to

provide adequate service, but the underlying dynamics of the incident

come from misunderstandings or misperceptions based on race or

ethnicity. Consequently, when such complaints are selected for

mediation, mediators need to be particularly sensitive to the underlying

racial or ethnic dynamics and prepared to address them.

Vivian Berger, interview with authors,

2000.

Some experts argue that no complaints involving complainants who

are members of racial or ethnic minority groups should be mediated,

regardless of the allegation. W

e do not agree with this view, but

because it raises a number of extremely important issues, it is worth

examining the pros and cons in detail.

20 Mediating Citizen Complaints Against Police Officers

While many complaints are not

officially about race, they are

really about race.

— Vivian Berger, New York City

Mediator

Arguments against mediation. Christopher Cooper, an African-American

professor of criminology at St. Xavier University in Chicago, a former

police officer, and an attorney, argues that all complaints involving

racial and ethnic minorities should not be mediated regardless of the

allegation (Cooper 2000; Cooper 1999a). The National Black Police

Association (2000) goes even further, declaring that "there are few

complaints by citizens against police officers that should be

considered appropriate for mediation, mainly because a mediation

process is valid only when the parties are on an equal playing field."

Cooper, who holds a Ph.D. in criminology, has written articles and a

book about police officers acting as mediators to resolve disputes

between citizens, argues that instead of solving the problem of race

discrimination in policing, mediation "is perpetuating the problem"

(Cooper 2000). In his view, mediation is a process through which an

officer can avoid "departmental punishment and potential criminal

prosecution." He believes that "[p]eople of color have the most to

lose from the growing popularity of these [mediation] programs."

Cooper is not alone in this view. Other community activists who have

been fighting police misconduct also fear that mediation may allow

officers who have committed serious abuses to "beat the rap" and

avoid discipline.

Many experts in the alternative dispute resolution (ADR) movement

are concerned that mediation will work to the disadvantage of

historically powerless groups. Some experts, including some feminist

scholars, for example, argue that women are likely to be at a

disadvantage in divorce, child custody, and spousal abuse mediation

because the mediation process perpetuates an inherent power

imbalance between males and females (Lerman 1984; Grillo 1991).

Some legal scholars point out that litigation has been a powerful

instrument of social change that has provided an avenue by which the

powerless level the playing field with powerful groups or institutions.

These experts fear that the ADR effort to reduce formal adjudication

will "undermine the enforcement of rights" and disadvantage the

powerless (Garth 1982; Fiss 1984).

Arguments for Mediation. Other experts, however, believe that mediation

is particularly well-suited for racial and ethnic-related complaints

against police officers. Berger, who has mediated citizen complaint

cases in New York City, writes, "I have found that these complaints

lend themselves extremely well to nonevaluative, purely facilitative

mediation" (Berger 2000).

21 Key Issues in Mediation

On one critical point, for example, critics of mediation misrepresent

the nature of internal police complaint mediation programs. Cooper

writes that citizens who file complaints involving issues of race "will

find that their cases are referred to mediation" (Cooper 2000). This is

not correct. Except for court-ordered programs, mediation is

voluntary; both the complainant and the officer must agree to

participate. Moreover, a complainant is free to end the mediation

session at any time and for any reason (e.g., if he or she feels

victimized by a power imbalance). Refusal to participate or

termination of a mediation session by either party leaves the

complaint subject to the traditional investigation process. For the same

reasons, the concern expressed by the National Black Police

Association about the lack of a "level playing field" in most

complaints does not invalidate the concept of mediation.

Although some mediation critics allege that mediation will prevent

important issues from being properly adjudicated, most mediation

programs prohibit mediation in use-of-force complaints. An officer

accused of using excessive force must face a formal investigation and

possible discipline. Moreover, large-scale police abuses such as

systematic harassment (e.g., racial profiling) are best addressed through

litigation or policy changes effected through political action (e.g., a

statute mandating arrest in domestic violence cases or data collection

on traffic stops).

In many complaints against police officers, and in police-community

relations generally, the basic problem is the chasm of

misunderstanding that exists between the majority community and

people of color. As representatives of law and authority, police

officers are often perceived as symbols of an oppressive society. For

their part, some officers react to young men of color in a symbolic or

stereotypical manner. As Jerome Skolnick (1994; orig. 1966) pointed

out more than 30 years ago in his classic study Justice Without Trial,a

tendency to stereotype is an inherent aspect of police work. In many

situations, neither the police officer nor the citizen is seeing or

responding to the other person as an individual. Bridging the racial

and ethnic divide has been the major challenge in policing since the

1960s, driving such reforms as the creation of police-community

relation units, team policing, and community policing, as well as

spurring a renewed interest in foot patrols (Walker 1999).

22 Mediating Citizen Complaints Against Police Officers

A Special Role for Mediation. Mediation is uniquely suited to help bridge

the racial and ethnic divide because it is the only procedure for

investigating complaints that brings the disputing parties together in a

face-to-face meeting. This characteristic may make mediation more

likely than any other program to help both parties understand the

dynamics of policing and how police and citizens interact. In contrast,

the lack of direct contact perpetuated by traditional complaint

investigation procedures may aggravate racial and ethnic divisions,

leaving both sides angry and suspicious of the other.

One important argument for mediating race- and ethnicity-related

complaints is the opportunity for empowerment and self-

determination of participants on both sides. Advocates of mediation

claim that it empowers participants by giving them control over the

dispute process. In contrast, formal legal proceedings, in which laws

and lawyers dominate, often make participants feel powerless.

Empowerment is especially important in regard to race- and ethnicity-

related complaints, because the core issue in police-community

relations for nearly 50 years has been the powerlessness many racial

and ethnic minorities feel with respect to local police. By empowering

officers and complainants as active participants in the process,

mediation could lead to dialog between police and the racial and

ethnic minorities in a community.

Mediating Complaints by Women

Some critics of mediation are also concerned that the process might

disadvantage women who file complaints against police officers. The

San Francisco Office of Citizen Complaints, as a matter of policy,

does not mediate complaints involving gender-related slurs.

The concerns about mediating complaints filed by women involve the

potential imbalance of power when a female citizen seeks to mediate a

complaint against a male police officer. Experienced mediators have

found that all citizen complaints against police involve special

considerations of power because of the unique role of the police.

There is some concern that women are more likely than men to be at

a disadvantage in a mediation session. Some experts in divorce, for

example, are particularly concerned that wives will be at a disadvantage

in mediation.

23 Key Issues in Mediation

We believe that these concerns are unfounded and that complaints by

women should not be excluded. In support of this view, some

research on divorce mediation indicates that women participants do

not suffer from any power imbalance in the process (Ellis and

Stuckless 1996).

Potential Language and Cultural Barriers

Potential language barriers represent an important mediation issue.

Because demographic trends indicate increased immigration to the

United States, an increasing number of complaints against police

officers will probably involve people who either have limited

command of the English language or do not speak English at all.

Given the expected increase, mediation programs should be able to

provide bilingual mediators or translators.

At the same time, mediation program managers should consider and

explore ways to better explain the concept of mediation to

complainants who do not speak English or are not familiar with the

nature of mediation as a means of resolving problems. The more

active citizen oversight agencies have adopted community outreach

programs to explain the citizen complaint process to people who are

new to this country and not familiar with the American criminal

justice system and its procedures for handling citizen complaints

against police officers (Waker 2001).

Case Screening

Even among cases that are formally eligible for mediation, not all are

good candidates for mediation. Program officials must evaluate

individual cases for eligibility (see box 3–2). The mediation program

staff person responsible for selecting and referring cases must ask,

"Are [the parties] capable of dealing fairly with each other?" (Maute

1990). A recent report on victim-offender mediation programs calls

for "careful screening of cases" and recommends that program staff

and mediators use discretion by asking themselves at each step in the

process whether the particular case is suited for and should proceed to

mediation (Umbreit and Greenwood 2000a).

24 Mediating Citizen Complaints Against Police Officers

Box 3–2

Case Eligibility Checklist

Type of Complaint:

1. Possible criminal charges.

2. Use of force.

3. Racial, ethnic, or gender slurs.

Officer Background:

1. Recent complaint history.

2. Recent mediation history.

The Minneapolis CRA director explained that some complainants are

so angry and upset that they would not be able to listen to the other

side. Similarly, some police officers who have been subject to prior

complaints are known by staff to have attitudes that make them poor

candidates for mediation. In either case, such complaints are not

referred for mediation because of the low probability of success. Note

that unsuccessful mediation would probably be counterproductive,

leaving both sides angrier and more alienated than they were originally.

The careful screening that occurs in most programs (which also

includes much self-selection by potential participants) is probably why

we did not hear about a single mediation session getting out of

control–that is, we found no reports of cases in which a participant

yelled, screamed, or otherwise behaved in an inappropriate manner.

Police Discipline and Accountability

A major issue in the mediation of citizen complaints is whether it

undermines police discipline. Some community activists fear that

mediation will allow an officer to "beat the rap." As already noted,

mediation functions in effect as a diversion program: no formal

departmental discipline can be imposed if the officer successfully

mediates the complaint, and no record of the complaint appears in his

or her disciplinary file. Therefore, some consider mediation a threat to

police accountability. They fear that citizens will view mediation as a

"slap on the wrist" for police officers, who might then not take the

process seriously. In this scenario, the citizen would enter mediation

without the mutual good faith that all mediators and police officials

interviewed for this report consider important.

Experienced police mediators argue that mediation does not

undermine formal discipline because few if any of the complaint

cases referred for mediation (assuming a properly designed program)

25 Key Issues in Mediation

are likely to be sustained in the first place. Barbara Attard, director of

the Berkeley Police Review Commission, explains, "Investigations of

police misconduct complaints have limited efficacy in some types of

cases, particularly those that are one-on-one and discourtesy/attitude-

based cases. The majority of such cases result in a finding of 'not

sustained'" (Attard 1999).

Complaints not sustained result in no discipline of the officer and, in

fact, tend to leave both the complainant and the officer feeling angry.

Insofar as mediation results in a dialog or better understanding

between the parties, some positive result is achieved.

Several mediators and police officials suggested that the disputing

parties be informed of the potential outcomes before they participate

in mediation. This action could eliminate any misconceptions that

community groups or citizens have about the mediation process. A

complainant who really wants the officer punished can then decline to

mediate.

Getting Both Sides to the Table

One of the greatest obstacles facing mediation programs is getting

both sides to the table (Peachey 1989). The few cases mediated by

most existing programs testifies to the seriousness of this issue (see

Chapter 4).

As Attard explained, "It is difficult to convince parties in police

misconduct cases that mediation is a good idea because they do not

have an ongoing relationship with each other" (Attard 1999). In

contrast, child custody or employee grievance cases involve individuals

who will have to deal with each other in the future and therefore have

considerable incentive to resolve their problems successfully and

maintain a good relationship.

Getting both sides to the table also involves a combination of

incentives and persuasion (see box 3–3). Mediation programs offer

officers a tangible incentive because a successfully mediated complaint

does not appear on an officer's record. Officers are also being paid for

the time they spend in mediation. For this reason, the police unions in

Rochester, Minneapolis, and San Francisco urge their officers to

choose mediation (Minneapolis Police Federation 1998). No equivalent

incentives are available for citizens, however. In fact, mediation poses

some significant disincentives for citizens. They must take time off from

work or sacrifice family time to participate in a mediation session. One

complainant told officials in Portland, for example, "I'm getting

married soon, and I just don't want to put any time into this" (Minard

1997).

26 Mediating Citizen Complaints Against Police Officers

Box 3–3

Getting Both Sides to the Table

Tangible Incentives

Officers: Successful mediation removes complaint from disciplinary file.

Citizen complainants: No direct incentives. Many disincentives (especially time).

Informational Material

Officers and citizens: Must be user-friendly (clear and brief), with a description of advantages

and assurance of confidentiality.

Personal Contact

Officers: Assurance from peers and union officials that mediation is a good choice.

Citizens: Many need further explanation; gentle encouragement but without coercion.

Convenience

Officers: On duty, with pay.

Citizens: Scheduling around work and family responsibilities.

In the absence of tangible incentives, many citizen complainants need

to be persuaded to choose mediation. Mediation officials in New York

City explained that many complainants get "cold feet" at the prospect

of the session and that it takes a lot of courage to face a police officer

or the specific officer in question. (This point is generally not well

understood by police officers; many think citizens are too eager to file

complaints and confront them.)

To get complainants to mediation, communities must address several

issues (see box 3–3).

First, good informational material that explains mediation is extremely

important. In one city, a key official conceded that the form letter sent

to complainants is not customer friendly and needs to be revised.

Second, communities must decide who will contact citizen complainants.In

Minneapolis, the initial contact is made by CRA, an agency

independent of the police department. Officials in both Rochester and

Portland conceded that mediation caseloads may be low because the

initial contact is made by a police officer, and complainants may be

suspicious.

There is reason to be concerned

about this issue. A Vera Institute study

of complaint processing in New York

City in the 1980s found that citizens

were being coerced into accepting

mediation or conciliation. See Sviridoff

and McElroy (1988).

Third, continuity in personnel responsible for mediation is also vital. The

number of cases mediated in Rochester has fallen in recent years,

possibly because of turnover among officers in the police

department's internal affairs unit and the fact that newly assigned

officers are neither fully aware of nor committed to mediation.

27 Key Issues in Mediation

Creating a "Level Playing Field"

One of the major concerns regarding the mediation of citizen

complaints against police officers is the need for a level playing field in

mediation and an atmosphere of equality among the parties. Many

mediators stated that citizen-police mediation cases are different from

other kinds of mediation cases largely because of power differences

between police and citizen complainants.

The unique power of police officers derives from two sources: an

officer's formal authority within the criminal justice system and an

officer's sanction power to inflict harm on or limit the freedom of

another person (Goldstein 1977).

Other power imbalances exist between the police and citizen

complainants. For example, officers are more likely to be "repeat

players," whereas citizens are likely to be "one-shotters" (Galanter

1974). Some officers may have been the subject of complaints

(although not necessarily mediation) and developed strategies for

handling themselves. Most complainants are new to the process and

therefore more likely to be uncertain and perhaps even fearful.

Establishing a level playing field is particular important for mediating

racial ethnic or gender-related complaints, because the power

imbalance is likely to be accentuated by cultural misunderstandings. A

complainant of color may feel powerless when confronting a white

officer because of feelings of alienation from a white-dominated

police department and a white-dominated society, which are not

related to the officer's actions. An officer might subtly invoke his or

her role as an officer or status as a member of the dominant white

society to control the process. A mediator needs to be fully cognizant

of both manifest and latent racial dynamics in any mediation session,

especially when they are not overtly expressed, and make a special

effort to level the playing field, to get both parties to meet each other

as individuals, and to address whatever racial or ethnic issues are at

work.

The Mediator Handbook advises that the effective mediator neutralize

these power imbalances so that the disputants may mediate fairly and

equally (Mitchell and Dewhirst 1990). For example, in Minneapolis,

mediators address participants by their first names. They do not

address participants, for example, as Officer Jones or Dr. Smith. By

eliminating reference to professional status, mediators level the playing

field.

You need to personalize the

service. Do not send form

letters to contact people.

Instead, you call them over

the phone or hand-write any

correspondence to them.

— California Citizen

Oversight Official

28 Mediating Citizen Complaints Against Police Officers

One of the most important issues uncovered in interviews for this

report is the question of police officers wearing a uniform in

mediation sessions. Many community representatives are concerned

about this issue. The uniform symbolizes the unique power of the

police officer, which tends to create a power imbalance in mediation.

In every mediation program studied for this report, officers are on

duty and being paid during mediation. As a result he or she cannot be

barred from wearing the uniform. In New York City, however, officers

are instructed to appear in civilian attire (Berger 2000). On the other

hand, a few people interviewed feel that the uniform may actually

increase the significance of a satisfactory outcome in that the

complainant and officer first made contact in these status positions, so

the outcome may give the complainant a sense of power and control.

In the end, if a complainant feels the officer is using the uniform to

wield power in a mediation session the best response is to terminate

the session. Before taking this step, of course, the complainant should

say to the officer "you are not treating me with respect." If such

efforts do not work and the complainant is unhappy with the officer's

behavior, he or she can terminate the session.

Insincere Participation

One potential problem is insincere participation by either party.

officer may choose mediation to "make the complaint go away," as

one officer explained, and go through the motions of the mediation

session, doing only enough to achieve a final resolution but without

any genuine commitment to the process.

Unfortunately, an officer's true motivations in a mediation session

cannot be gauged nor can genuine sincerity be ensured. P

erhaps the

best measure of an officer's sincerity is the complainant's level of

satisfaction that the officer has listened and responded appropriately,

even if the officer's response was not an explicit apology. If the

complainant feels that the officer is being insincere, the citizen has the

option of terminating the session.

If an officer feels a citizen is not participating sincerely, he or she also

has the option of terminating the mediation session.

The problem of lack of good faith in

mediation is discussed extensively in

Kovach (1997). This problem is more likely

to arise in court-annexed mediation where

the potential threat of formal litigation

hangs over the process. (See also Umbreit

and Greenwood 2000b).

29 Key Issues in Mediation

Mediators

Mediator Skills

Mediation programs should only use trained professional mediators.

Mediation is an important and complex undertaking, and it should not

volve amateurs. Professional standards for mediators have been

developed and approved by the American Arbitration Association, the

Society for Professionals in Dispute Resolution, and the American Bar

Association Section on Dispute Resolution (Hill 1998).

Because complex issues may arise during the mediation process,

mediators must possess a combination of human relations and

mediation skills. Two experts explain that the ability to be

professional, sensitive, street smart, and a good communicator

increases the chances that an individual will be effective in mediation

(Mitchell and Dewhirst 1990). Mediators must also be able to work

with recalcitrant parties who are reluctant to work toward a

satisfactory end.

Mediator Neutrality

Some mediators have strong feelings about police that affect their

neutrality. Mediation officials in one city explained that some of their

mediators have strong feelings of hostility toward police and therefore

do not accept police-related cases. At the same time, other mediators

have very positive feelings about police or have family members or

close friends who are police officers and therefore decline police-

related cases.

The Standards of Conduct for Mediators specify that "a mediator

shall disclose all actual and potential conflicts of interest reasonably

known to the mediator" (American Bar Association et al. 1994).

Financial conflicts of interest are not likely to arise in citizen

complaint cases, but conflicts arising from political attitudes and

personal associations may.

For a discussion of the ethical

dilemmas of "personal reactions to parties

during mediation," see Bush, The Promise

of Mediation: Responding to Conflict

Through Empowerment and Recognition.

Number of Mediators

Some programs mediate cases with a single mediator, and others use

two mediators at eac

h session. For example, co-mediators are routinely

used in 70 percent of all victim-offender mediation programs

(Umbreit and Greenwood 2000b). This issue is best left to the

mediators in each community.

30 Mediating Citizen Complaints Against Police Officers

Role of Lawyers

Much of the literature on mediation and ADR involves the roles and

professional responsibilities of lawyers because divorce mediation and

commercial dispute mediation, alternatives to formal court

proceedings, typically involve lawyers (Maute 1990).

Citizen complaint mediation does not involve lawyers, so the lawyer-

related issues do not arise (see box 3–4). Citizen complaint mediation

is an alternative to a formal investigation by a police internal affairs

unit or citizen oversight agency. Most experts in the field argue that

the involvement of lawyers conflicts with the basic goals of

mediation, which include building understanding and not factfinding

and determination of guilt.

Box 3–4

Am I Entitled to Representation?

No, you are not entitled to a representative or a lawyer. The purpose of the

mediation is for YOU to make the decisions YOU are comfortable with.

Source: San Diego Police Department, Consent To Mediate form.

Confidentiality

Confidentiality is an essential element of mediation. For mediation to

succeed, both sides must feel free to speak candidly (Freedman and

Prigoff 1986; Mitchell and Dewhirst 1990). Confidentiality has special

relevance for citizen complaints because the officer must be assured

that any apology or acknowledgment of wrongdoing will not be used

against him or her, either by the police department or by a private

attorney in some other legal proceeding. Box 3–5 shows the San

Diego Police Department's confidentiality agreement.

Confidentiality is protected by a wide range of Federal and State

statutes, along with professional standards for mediators. In Portland,

for example, mediators are bound by the Oregon Mediation

Association's Standards of Practice (Minard 1997).The interviews and

site visits for this report revealed no breaches attempted breaches of

confidentiality (e.g., a private attorney seeking to obtain mediation

records). In developing new mediation programs, however, local

officials should carefully research the applicable State statutes.

Although concern about confidentiality exists, we could not find a

single violation of confidentiality in a citizen complaint mediation

case.

31 Key Issues in Mediation

Box 4–5

Mediation Confidentiality Agreement

INFORMATION AND AGREEMENT

SAN DIEGO POLICE DEPARTMENT

Internal Affairs Unit

CONFIDENTIALITY INFORMATION AND AGREEMENT

The confidentiality of this mediation session is governed by California Evidence Code Sections 1115-1128.

These evidence code sections pertain to the confidentiality and admissibility of evidence.

Specifically, Section 1119, Mediation Confidentiality, in summary provides:

• Anything said or writing prepared for the purpose of, in the course of, or pursuant to a mediation

or a mediation consultation,

• Is inadmissible and not subject to discovery in any arbitration, administrative adjudication, civil

action or other non-criminal proceeding,

• All communications, negotiations or settlement discussions by and between participants in the

course of a mediation or mediation consultation shall remain confidential.

A communication or a writing, which is confidential under Section 1119, can be admissible or subject to

discovery if all persons who conduct or otherwise participate in the mediation expressly agree in writing

(Section 1122).

Evidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation

shall not be or become inadmissible or protected from disclosure solely by reason of its use or introduction

in the mediation or mediation consultation (Section 1120).

WE UNDERSTAND AND AGREE THAT THE SAN DIEGO POLICE DEPARTMENT AND

REPRESENTATIVES [OF THE SAN DIEGO MEDIATION CENTER] WILL KEEP

CONFIDENTIAL ALL STATEMENTS MADE DURING THE MEDIATION SESSION AND THAT

WE SHALL NOT SUBPOENA THE REPRESENTATIVE OF THE SAN DIEGO POLICE

DEPARTMENT, NOR ANY DOCUMENTS PREPARED AS A RESULT OF THE PROCEEDINGS.

NAME DATE

Source: San Diego Police Department.

32 Mediating Citizen Complaints Against Police Officers

Mediation Session

Structure and Process

The structure and process of mediation sessions are described in

many mediation handbooks. The following discussion is adapted from

The Mediator Handbook, published b

y the Center for Dispute Resolution

at Capital University in Columbus, Ohio (Mitchell and Dewhirst 1990).

One outline of the mediation process includes seven stages:

1. Introduction. The mediator introduces the parties, explains the

mediation process, and sets forth ground rules for the session.

2. Problem determination. The mediator identifies the problem that

brought the two parties together and asks each to explain his or her

side of the story.

3. Summary. The mediator summarizes the problem in a neutral and

evenhanded manner.

4. Issue identification. The mediator helps the two parties identify

specific issues that need to be mediated. The mediator must not

introduce his or her interpretation of the dispute. In mediation, dialog

between the two parties is the most important part of the process.

5. Development of alternatives. The mediator helps the two parties

discuss alternative ways to resolve the dispute. Again, the mediator

should not impose a solution (e.g., "Joe, why don't you apologize to

Jack"). The emphasis should be on dialog and not on a quick

settlement (e.g., "It's getting late; we need to wrap this thing up").

6. Selection of appropriate alternatives. The mediator helps the

two parties agree on an appropriate resolution.

7. Conclusion. The mediation session concludes with a clear

statement of and agreement on the terms of the resolution.

Different Communication Styles

Mediators need to be sensitive to the fact that people communicate in

different ways, and many of these differences are rooted in racial,

ethnic, or cultural traditions. One of the best discussions of these

issues is in the report Multicultural Implications of Restorative Justice:

Potential Pitfalls and Dangers, produced by the Center for Restorative

Justice and Peacemaking at the University of Minnesota and published

by the Office for Victims of Crime of the U.S. Department of Justice

33 Key Issues in Mediation

(Umbreit and Coates 2000). As the authors of the report explain (p.

1), "People from different cultures have different ways of speaking

and behaving. In addition, a person's cultural milieu determines his or

her world view, perception of justice, and communication style." A

leading handbook on conflict resolution adds that communication

problems across cultures are often the result of "attribution error":

one party attributing negative or hostile meaning to communication or

behavior by someone of a different cultural tradition when in fact the

latter meant no offense (Kimmel 2000).

These observations have enormous implications for the mediation of

citizen complaints against police officers. In many instances,

differences in communication style may be at the heart of the original

complaint against the police officer.

Differences in communication styles may reappear in a mediation

session (Umbreit and Coates 2000). These styles include, for example,

body movements. Many whites express themselves with animated smiles

or grimaces, whereas Asians are less likely to use animated facial

expressions. In a cross-cultural mediation session, this can lead to

misunderstanding. There are also important differences related to eye

contact. Direct eye contact is highly valued in some cultures as a sign of

respect; in others, it is seen as disrespectful or threatening. Another

form of communication has been characterized as paralanguage. This

involves speech patterns such as "hesitations, inflections, silences,

volume or timbre of voice, and pace of speaking" (Umbreit and

Coates 2000). The restorative justice report points out that in

"American-Indian culture, silence is valued as sacred, [whereas] White

Americans often feel uncomfortable with silence" (Umbreit and

Coates 2000). Finally, there are differences related to density of language.

Some cultures compress a great deal of meaning in short phrases. The

phrase "uh, huh" can convey much to members of the same culture

but appear unresponsive to someone from a different culture.

Session Length

There is no fixed length for a mediation session. Nonetheless, most

programs plan on sessions lasting about one hour. A recent report on

victim-offender mediation programs states that the "mediation session

is dialog-driven and typically about an hour (or longer) in length"

(Umbreit and Greenwood 2000a). The mediation session should not

be so short that participants feel forced into an agreement, but it

should also not drag on too long. The mediator should balance

keeping the parties focused on reaching an agreement without forcing

them into one. If the session is unfocused, with the two parties not

addressing the real issues related to the complaint, everyone is likely to

be unhappy with the process.

34 Mediating Citizen Complaints Against Police Officers

Case Outcomes

Successful Mediations

The typical outcome of a successful mediation session is an

understanding that the complaint is resolved to the satisfaction of

both parties. T

his may involve an apology from the officer.

Experienced mediators report that officers are reluctant to offer

explicit apologies. Several mediators in New York explained that on

several occasions, police officers have indirectly apologized to citizens.

For example, instead of an officer saying he or she is sorry, the officer

might state that he or she is having a bad day or that he or she is sorry

the complainant felt (or experienced the incident) that way. In many

cases, the result may be that the two parties agree that they have had a

chance to express themselves and hear the other's response. In effect,

they agree to disagree about the events. Because one of the major

goals of mediation is to build understanding, the process of hearing

and agreeing to disagree is often sufficient.

Removing the Complaint From the Officer's File

In most programs, when a case is successfully mediated, the complaint

is removed from the officer's official file. This is the officer's principal

incentive to participate.

The San Diego Police Department procedures explain that "[I]f the

citizen complaint is successfully mediated, the complainant will agree

to authorize Internal Affairs to 'officially' withdraw the complaint. The

case will then be logged and tracked by the assigned 'M' number."

Unsuccessful Mediations

If the two parties cannot reach a satisfactory agreement, the mediation

is officially unsuccessful. Mediation may fail because one or both sides

decide that no satisfactory resolution has been reached. The option of

terminating a mediation session is the most important safeguard for

ensuring that both sides make a sincere effort. The officer cannot

stonewall and refuse to acknowledge what the complainant is saying.

Equally important, the complainant cannot use the session simply to

berate the officer. When a mediation session appears to be failing, the

mediator should try to help the parties reach an understanding but

should not coerce a settlement.

35 Key Issues in Mediation

In most programs, when the mediation is unsuccessful the complaint

is returned to the police department or citizen oversight agency for

investigation in the traditional manner. (However, see the exception to

this rule under "An Important Exception" in this Chapter.)

Creative Outcomes

Mediation officials reported examples of creative, nontraditional

outcomes of mediation sessions. Creative outcomes include

agreements to take some type of action outside the mediation session.

The Washington, DC Office of Citizen Complaint Review (OCCR)

specifically allows for "some type of corrective action" by the officer

"as part of the settlement" (www.occr.dc.gov).

In perhaps the most notable example found in the course of

preparing this report, a white officer in one city accompanied a

middle-ag

ed African-American man to church on Sunday morning.

The officer had used an offensive racial epithet in addressing the man,

who told mediation officials, "He treated me like a dog. I just wish he

could see me in church on Sunday to see what kind of person I really

am." The mediation officials suggested that he propose this as a

mediation outcome. The officer accepted, and reportedly the two had

coffee together after church. This case is probably the most notable

example of racial bridge building. (For reasons of confidentiality, the

city where this case and the one described below occurred cannot be

identified).

In another case, in which a police officer had verbally abused a woman

in her home and in the presence of her children, the officer agreed to

take her son on a police ride-along. In another case, the officer offered

to serve as a reference when the complainant applied for a teaching

job. These two examples show how mediation can lead to some

activity outside the session itself that may help to build understanding

between police and citizens. When such creative outcomes are agreed

to, however, it is important to document an understanding of what

activity will occur and that it was satisfactory. Failure of one side or

the other to fulfill the terms of the agreement would be considered

unsuccessful mediation.

36 Mediating Citizen Complaints Against Police Officers

An Important Exception

At least one important exception to the standard case outcome

process is found in Portland, Oregon. T

here a complaint is "closed"

once it is referred for mediation, regardless of the outcome. Program

officials are instructed to explain in advance to complainants that

"once the mediation begins, the Internal Affairs Division will not

continue with the investigation of the complaint." Thus, the initial

Consent to Mediate form constitutes completion of a "successful"

mediation (Minard 1997).

Considerable disagreement exists over the wisdom of the Portland

approach. Many experts think that it undermines the basic purpose of

mediation, which is to get both parties to discuss the issue at hand,

listen to each other and reach an acceptable agreement. In theory, an

officer in Portland could refuse to participate meaningfully (e.g.,

"stonewall") and yet still have the complaint officially recorded as a

successful'" mediation. Similarly, a citizen could refuse to engage in

meaningful participation and/or get angry and yell at the officer, and

the complaint would be recorded as successfully mediated. After much

discussion with experts in the field, we conclude that this aspect of

the Portland program is not advisable. The process not only

undermines the basic goals of mediation but also jeopardizes police

accountability.

Documentation

A successful mediation session should be documented with a

statement to that effect signed by both parties and the mediator.

Because of confidentiality requirements, the document must not

contain details about either the nature of the complaint or the final

agreement. Documentation is necessary to prevent either side from

attempting to reopen the case at some later date and to formally notify

the police department that the complaint was successfully mediated.

Enforcement of Agreements

ADR experts are concerned about the enforcement of mediation

agreements (Nicholl 2000b). For the most part, this issue is not a

concern with respect to citizen complaints against police officers

because the final outcome does not involve the exchange of tangible

resources, such as the payment of child support in a divorce

settlement or the transfer of assets in the settlement of a commercial

dispute. Instead, the agreement involves an understanding that both

sides are satisfied with what has been said.

37 Key Issues in Mediation

An exception to this rule would be the case of a creative outcome as

described above. In such cases, a written understanding of what

activity outside the mediation session is supposed to occur. This

written understanding may be sealed and remain confidential once the

activity occurs and the case is closed as a successful mediation.

Widening the Net?

One problem that has affected many alternatives to traditional

criminal prosecution, especially diversion programs, is the

phenomenon of "net widening." Net widening occurs when, instead

of diverting serious cases out of the system, a program promising less

serious outcomes draws in cases that would otherwise be dismissed.

Nicholl (2000b) warns that net widening is a potential problem for

restorative justice programs.

A form of net widening could occur if mediation programs succeed

in handling a significant number of cases. Assuming that mediation

affords a more satisfactory experience for complainants and gains a

positive reputation in the community, it could encourage the filing of

more complaints. An increase in complaints is one consequence of the

development of complaint procedures that are more open, accessible,

and customer-friendly (Walker 2001).

Danger of Unrealistic Expectations

One of the greatest dangers facing the concept of mediating citizen

complaints against police officers involves unrealistic expectations on

the part of mediation advocates. Unrealistic expectations may produce

disillusionment and a backlash that unfairly labels mediation as a

failure.

What are reasonable expectations? First, it is reasonable to expect that

only a few cases will be mediated, at least initially. There is a broad

consensus that certain categories of serious complaints should not be

eligible for mediation and that individual officers with bad disciplinary

records should not be eligible to mediate their cases. Additionally,

many complainants and police officers will decline to choose

mediation. Their wishes need to be respected. Second, no one should

expect that mediation itself will solve police-community relation

problems or eliminate police misconduct. The potential benefits of

mediation described in Chapter 2 may be achieved, but they should be

viewed as small incremental improvements at best. Third, mediation

should be viewed as only one part of a larger commitment to

strengthen police accountability and improve police-community

relations.

38 Mediating Citizen Complaints Against Police Officers

Planning

In developing new mediation programs, communities need to plan

carefully. Lack of planning is probably one of the main reasons so

many existing mediation programs handle so few cases. Good

planning includes identifying and resolving key issues in advance,

securing adequate funding, and developing full and accurate public

understanding of the mediation process. Chapter 5 describes a model

planning process.

39 Existing Citizen Complaint Mediation Programs

Chapter 4

Existing Citizen Complaint Mediation Programs

Introduction

Few citizen complaint mediation programs exist in the United States.

Moreover, most programs mediate only a handful of cases every year.

The failure of citizen complaint mediation programs to develop

stands in stark contrast to both the enormous number of mediation

and other alternative dispute resolution (ADR) programs in other

aspects of American life. Moreover, informal resolution in handling

citizen complaints is widely used in other English-speaking countries

(Bush and Folger 1994; Mills 1991; McGillis 1997).

This chapter describes procedures for gathering information about

existing citizen complaint mediation programs, mediation program

statistics, factors contributing to the success and failure of mediation

programs, a model program in Minneapolis, and mediation in other

countries.

This project undertook the National Survey of Citizen Complaint

Mediation Programs in 1998 and continued to update the initial

findings for the next year and a half. The survey identified the number

of mediation programs, activity level of each program, basic program

structure, factors contributing to the success of mediation programs,

and factors contributing to the failure of mediation programs (Walker

and Archbold 2000).

The initial survey involved telephone interviews

and the collection of official documents. Subsequently, site visits were

made to the mediation programs in Minneapolis, Minnesota; Portland,

Oregon; Rochester, New York; and New York City.

For descriptions of mediation programs in

several citizen oversight agencies, see Finn

(2001).

Survey Methodology

Number of Mediation Programs

Identifying all existing citizen complaint mediation programs was

extremely difficult. No directory or listing of programs exists

Consequently, four steps were taken to identify existing programs. In

step 1, official documents associated with all citizen oversight agencies

in the United States were examined to identify active mediation

programs. These documents were collected as part of an ongoing

national survey of citizen oversight agencies in the United States

(Walker 2001). The documents included (1) enabling ordinances or

40 Mediating Citizen Complaints Against Police Officers

executive orders, (2) agency rules and procedures, and (3) agency

annual reports. In step 2, the staff of all active mediation programs

identified in step 1 were interviewed by telephone and asked to

identify other police mediation programs. In step 3, officials

representing the two citizen oversight professional associations–the

International Association for Citizen Oversight of Law Enforcement

(IACOLE) and the National Association for Citizen Oversight of Law

Enforcement (NACOLE)–were contacted and asked to identify all

police mediation programs they knew about. In step 4, officials

representing more than 200 mediation agencies listed in a directory

published by the National Association for Community Mediation were

contacted and asked whether they handled citizen complaints against

police. Virtually all existing programs were identified through step 1.

The combined result of steps 2, 3, and 4 was the addition of only one

program to, and the deletion of one program from, the list initially

developed in step 1.

Activity Level of Mediation Programs

Three measures were used to determine the activity level of mediation

programs: the total number of complaints referred for mediation, the

percentage of those cases that were successfully mediated, and the

percentage of all complaints that were successfully mediated. Data

were derived from the annual reports of oversight agencies and, when

necessary, from telephone interviews with officials.

Basic Program Structure

Mediation program officials were asked to provide documents related

to their programs and answer questions about the basic structure and

processes of their programs.

Factors Contributing to the Success and Failure of Mediation Programs

Mediation program officials were asked questions related to the

factors contributing to the success and failure of mediation programs.

These interviews were designed to be exploratory and not to generate

definitive findings. It was recognized that everyone interviewed had a

vested interest in mediation and that future research on the successes

and failures of mediation would require interviews with a broader

range of stakeholders.

41 Existing Citizen Complaint Mediation Programs

Survey Results

Number of Mediation Programs

The national survey identified 16 citizen complaint mediation

programs in the United States (see Table 4–1). When the surv

ey was

completed (mid-1999), only 14 programs were operational. Two

programs had been authorized only recently and were not yet

operational. Since the national survey was completed, the authors have

identified one additional program that is in the planning stage.

Table 4–1

Mediation Programs

City

Agency

Referred cases

(year)

Successful

cases

% of referred

cases successfully

mediated

% of all complaints

successfully

mediated

Albuquerque, NM

Police Oversight Commission/Indep.

Review Office

3 (1998)

100% (3/3) N/A

Berkeley,

Police Review Commission

1 (1998)

100% (1/1) 2.2%

Boise, ID

Office of the Ombudsman

N/A* (1999)

N/A

N/A N/A

Boulder, CO

Boulder P.D./Professional Standards

Unit

3 (1998)

66.66% (2/3) 2.94%

Dover, DE

Center for Community Justice

3(1998)

0% (0/3) 0%

Kansas City, MO

Office of Citizen Complaints

3 (1998)

100% (3/3) N/A

Milwaukee, WI

Fire & Police Commission

17 (1998)

34% (5/17) 5.8%

Minneapolis, MN

Minneapolis Civilian Police Review

Authority

39 (1998)

33.33% (13/39) 11.5%

New Haven, CT

Community Mediation

1 (1998)

0% (0/1) 0%

New York, NY

Citizen Complaint Review Board

14 (1998)

100% (14/14) .0028%

Portland, OR

Neighborhood Mediation Center

24 (1998)

28% (7/24) .0206%

Rochester, NY

Center for Dispute Settlement

5 (1998)

40% (2/5) 2.1%

San Francisco, CA

Police Commission/Office of Citizen

Complaints

30 (1998)

13% (4/30) .0037%

Santa Cruz, CA

Citizen’s Police Review Board

0 (1997)

0% (0/0) 0%

Syracuse, NY

Citizen Review Board

13 (1997)

0% (0/13) 0%

Washington, DC

Office of Citizen Complaints

N/A* (1999)

N/A

N/A N/A

* The Washington DC Office of Citizen Complaints and the Boise Idaho Office of the Ombudsman are not yet operational, but will offer mediation and conciliation once they begin

operation.

42 Mediating Citizen Complaints Against Police Officers

Existing mediation programs are available for only an extremely small

percentage of the estimated 17,120 state and local law enforcement

agencies in the United States. Additionally, they are associated with a

small percentage of the estimated 100 citizen oversight agencies

(Bureau of Justice Statistics 1999a; Walker 2001).

Activity Level of Mediation Programs

Number of cases referred for mediation. As table 4–1 indicates,

the activity level of most programs is extremely low. The program in

Santa Cruz, California, for example, did not have a single complaint

referred for mediation in 1998. During the same year, three other

programs did not successfully mediate any referred cases. The Dover,

Delaware, Center for Community Justice received three referred cases

in 1998 but mediated none successfully.

Number of cases successfully mediated. Only three or four of the

existing programs have successfully mediated a significant number of

cases. The Minneapolis Civilian Review Authority (CRA) mediated 13

cases in 1998, and this number has been increasing steadily since 1995

(see table 4–2). The Neighborhood Mediation Center in Portland,

Oregon, successfully mediated seven cases in 1998, but this was a

sharp decline from 31 cases in 1996 (Minard 1997). Similarly, the

number of cases successfully mediated by the Rochester, New York,

Center for Dispute Settlement has been declining in recent years. The

New York City Civilian Complaint Review Board (CCRB) successfully

mediated 14 cases in 1998, and the program has experienced a

significant increase in the past year.

Since the initial draft of this report was completed, the Office of

Civilian Complaint Review (OCR) in Washington, DC has established

a mediation program that has gotten off to a very fast start. It was not

possible to examine that program in detail for this report, but details

about its current activities are available on the OCCR web site

(www.occr.dc.gov).

Percentage of referred cases successfully mediated. The

percentage of

complaints referred for mediation that are successfully

mediated varies considerably. In 1998, Minneapolis successfully

mediated only one-third of the cases referred, and the New York City

CCRB successfully mediated all of the 14 cases referred (which was an

extremely small percentage of all complaints received). Particularly

troubling is the fact that none of the 13 cases referred for mediation

in Syracuse, New York, were successfully mediated; in San Francisco,

only 13 percent of the referred cases were successfully mediated in

1998.

43 Existing Citizen Complaint Mediation Programs

Percentage of all citizen complaints successfully mediated. The

percentage of successfully mediated complaints from all citizen

complaints received is extremely low. The highest rate was found in

Minneapolis, where 11.5 percent of all citizen complaints were

successfully mediated. The New York City CCRB and the San

Francisco Office of Citizen Complaints successfully mediated less

than 1 percent of all citizen complaints received.

As this report was being completed some disturbing trends appeared

in both Rochester, New York, and Portland, Oregon. In both cities,

the number of cases referred and successfully mediated as a

percentage of total citizen complaints received has declined in recent

years. Rochester officials attribute this trend to a lack of continuity in

key personnel in the Rochester Police Department. In their program,

officers assigned to the internal affairs unit are responsible for

contacting citizen complainants and offering mediation. Because of

turnover in the unit, it appears that newly assigned officers are not

fully acquainted with and committed to mediation.

In Portland, the decline in the number of cases referred for mediation

is due in part to a disagreement between the Neighborhood Mediation

Center and the Portland Police Bureau over funding of the program.

At the time this report was completed, the status of the Portland

mediation program was unknown.

Table 4–2

Minneapolis Civilian Police Review Authority

Year

Cases sent to

mediation

Successful

Mediation

% successful cases

% complaints

successfully mediated

1991

1992

1993

1994

1995

1996

1997

1998

0.07%

22.22%

18.18%

47.06%

28.57%

20.51%

46.67%

33.33%

N/A

5.30% (8/150)

2.7% (4/146)

6.2% (8/129)

8.8% (14/159)

11.5% (13/113)

44 Mediating Citizen Complaints Against Police Officers

Basic Program Structure

Program operations. Mediation programs are operated by citizen

versight agencies, community mediation centers, and police

departments. Most mediation programs are operated by citizen

oversight agencies. Four programs are operated by neighborhood

community justice or dispute resolution centers. Only one existing

program, in Boulder, Colorado, is clearly operated by the police

department, although the San Diego Police Department is developing

a program (the program was not operational at the time of

publication).

Program origins. Most existing mediation programs were authorized

by the ordinance that created the local citizen oversight agency.

Generally, mediation is one clause in the larger ordinance. A few

programs appear to have originated as extensions of preexisting

neighborhood justice centers, with citizen complaint mediation simply

added as one new aspect of an ongoing program. The Portland

program, for example, began as a pilot project of the Neighborhood

Mediation Center in 1993. Only a few programs appear to have been

added as an aspect of an existing complaint procedure administered

by a police department or a citizen oversight agency (see Chapter 6 for

a discussion of the San Diego program). In some instances, program

development has proceeded without the benefit of a key local official

who fully understands and is committed to the mediation program. In

the absence of any published literature on the subject, local officials

have had little guidance in developing criteria for addressing specific

citizen complaints. (The senior author of this report, for example,

talked with officials in one city who thought their ordinance mandated

the mediation of all complaints.)

Funding sources. Mediation programs are funded through a variety

of arrangements. In Minneapolis, cases are mediated by the

Minneapolis Mediation Center, a community-based nonprofit

organization supported by funding from city and county government

agencies, civic organizations, and individuals and clients. The CRA

pays the center a flat fee per year. The fee is used to cover

administrative costs; individual mediators handle cases on a pro bono

basis. The Portland program was funded by the city of Portland

through the Portland Neighborhood Mediation Center.

Mediators in

Minneapolis and New York City work on a pro bono basis, which

substantially reduces program costs.

For information about the source of

funding for victim-offender mediation

programs, see Umbreit and Greenwood

(2000b) and McGillis (1997).

Case eligibility. The types of cases deemed eligible for mediation

vary across prog

rams. For example, 8 of the 14 active mediation

programs only handle cases involving allegations of less serious,

45 Existing Citizen Complaint Mediation Programs

nonviolent police misconduct and do not mediate complaints

involving alleged police use of force. Other programs do mediate use

of force cases. Some programs, however, do not have clear guidelines

regarding case eligibility.

Source of mediators. Most programs have a formal relationship with

a local mediation center that provides trained mediators. Other

programs draw from a list of certified mediators provided by the local

bar association.

Factors Contributing to the Success of Mediation Programs

Supportive community environment. The national survey found

that a supportive community environment committed to mediation is

likely to be a critical factor in creating a mediation program. For

example, the Rochester program, created in 1973, is administered by

the Center for Dispute Settlement, which handles a wide range of

disputes. The initial success of the Portland mediation program may

have been due in part to the city's strong commitment to mediation as

indicated the existence of a city-sponsored mediation agency.

Support from police. Support from police, including commanders,

rank-and-file officers, and the local police union, is crucial to

successfully creating and operating a mediation program that refers a

significant number of cases for mediation.

An evaluation of the Minneapolis CRA concluded that an increase in

the number of informal resolutions was due to an "enhanced level of

trust that exists between the executive director of CRA and the Police

Federation [the local police union]" (Minneapolis Civilian Review

Authority 1997). The Police Federation has publicly endorsed

mediation in its official newspaper (Minneapolis Police Federation

1998).

Two factors appear to be at work in Minneapolis. First, CRA, which

handles all citizen complaints, has won the respect of police officers

for conducting investigations fairly. In addition, CRA's process enables

all officers and citizens to evaluate the quality of their mediation

experience. Both groups give CRA very high ratings (Minneapolis

Civilian Review Authority 2000). Thus, officers have come to trust

CRA in its handling of complaints. Second, a new police chief was

appointed in Minneapolis in 1995. According to many persons

interviewed for this report, this chief has established new and stricter

performance standards for officers. The prospect of genuine

46 Mediating Citizen Complaints Against Police Officers

discipline for a sustained citizen complaint has given officers an

incentive to choose the mediation alternative; that is, a meaningful

"stick" has made the "carrot" appear more attractive than it otherwise

would. In addition, the program's criteria regarding eligible cases and

police officers make it impossible for an officer guilty of serious or

repeated misconduct to evade investigation and discipline.

Rank-and-file union leaders in San Francisco have also endorsed

mediation, and mediation in Portland functions with the tacit support

of the police union.

They [officers] shy away

from mediation because

some view it as admitting

that they were wrong or not

doing their job. It's about

trying to save face.

— New York City Citizen

Oversight Official

Factors Contributing to the Failure of Mediation Programs

Interviews with mediation program staff, which were conducted by

telephone or through site visits, produced data on the perceived

reasons for the failure of citizen complaint mediation programs.

Failure consists of two dimensions: the low number of mediation

programs and the small number of cases mediated each year by

existing programs.

Police officer opposition. The most frequently cited obstacle to the

creation of mediation programs was opposition from rank-and-file

police officers and their unions. This factor was mentioned by 64

percent of all people interviewed in the national survey.

Officers oppose mediation for various reasons, the most common

being that they oppose any process in which they might have to admit

guilt or apologize. This opposition stems from two factors. First,

despite the promised strict confidentiality of statements made during

mediation, some officers fear that any admission might subsequently

be used against them in a formal proceeding. A leading text on

mediation explains that "reluctance to apologize may also be the

product of rules of evidence that treat an apology as an admission of

fault that can be used to prove wrongdoing" (Goldberg, Sander, and

Rogers 1992).

Second, many of the people interviewed believe that police officers

see mediation as compromising their authoritative status. Mediation is

intended to place both parties to a dispute on equal footing, and

officers are reluctant to place themselves in that position.

Police opposition to mediation also contributes to the failure of

existing programs in terms of the dearth of cases actually mediated.

Site visits to several existing programs revealed that officers were

generally reluctant to participate in mediation. However, some site

visits also revealed that the local police union failed to share the rank-

47 Existing Citizen Complaint Mediation Programs

and-file officers' attitudes toward mediation. In the communities of

several programs, the local police union has begun to recommend

mediation to its members. These programs provide a tangible

incentive to officers, to the extent that a successfully mediated

complaint does not appear on an officer's disciplinary record. In these

communities, the major obstacle to greater participation has shifted to

citizens (see Chapter 3).

Reports of police officer opposition to mediation appear to be

strongest in programs administered by community mediation centers.

This suggests that citizen complaint mediation was adopted without

first establishing a close working relationship with the police

department in general and rank-and-file officers in particular.

Lack of understanding of mediation. The second most important

factor inhibiting the development of mediation programs is a lack of

understanding of mediation among police officers and citizens. To a

great extent, this lack of understanding reflects the novel aspect of

mediation in the context of policing. At the time this project was

initiated, no published information (apart from local program

brochures) about the mediation of citizen complaints was available.

Of the vast body of literature on mediation and other ADR

procedures, none addresses citizen complaints against police.

Lack of resources. Staff of several mediation programs report that a

lack of resources has contributed to the low number of mediated

complaint cases. Mediation is probably much less costly than

traditional complaint investigations, but the associated costs (mediator

fees, administrative costs) must be assumed by some agency. The

Minneapolis program appears to be the most successful partly because

CRA has made a commitment to fund mediation in anticipation of

overall cost savings. After a few years of success, the Portland

program became the victim of a disagreement over funding. The

lesson appears to be that some agency or government entity needs to

make an initial commitment to assume the costs of a mediation

program.

Lack of incentives for complainants. Interviews with existing

mediation program officials determined that once a program is

established with incentives for officers to participate, the low number

of mediated cases is often due to the lack of incentives for citizen

complainants. Mediation actually involves more work and involvement

for the complainant than traditional complaint investigations.

48 Mediating Citizen Complaints Against Police Officers

An evaluation of the Portland mediation program identified five major

reasons that complainants decline to participate (see box 4–1): their

belief that the police officer would not act in good faith, avoidance

for unspecified reasons, a lack of time, a desire to put the matter

behind them, and a sense of hopelessness (e.g., "I don't see what good

it will do to mediate [long sigh]"; (Minard 1997). The desire to put the

matter in the past is a purely personal consideration beyond the

control of program administrators. However, the first and last reasons

are well within the capacity of program administrators. Both can be

remedied through well-written printed material that explains mediation

and encourages complainants to choose that option.

Box 4–1

Five Reasons Complainants Decline To Participate in Mediation

1. Police officer would not act in good faith.

2. Unspecified reasons for avoiding mediation.

3. Do not have time.

4. Want to put the matter behind them.

5. A sense of hopelessness.

Minneapolis: A Model Mediation Program

Minneapolis currently has the most successful citizen complaint

mediation program. Its success is indicated by the number of cases

referred for mediation, the number successfully mediated, and the

increase in the number of mediated cases in recent years.

The CRA was created in 1990 in response to many years of

controversy over use of excessive force by police. The CRA is an

independent municipal agency with authority to receive and investigate

citizen complaints against Minneapolis police officers. It began

operating in 1991. The CRA consists of a board of directors

appointed by the mayor and members of the city council, an executive

director, three investigators who are not sworn police officers, and

seven civilian support staff (although the agency lost one investigator

and one other staff person in 2001 because of budget cuts)

(Minneapolis Civilian Review Authority 1997, 2000; Walker 2001).

The CRA is one of the most successful citizen oversight agencies in

the country. An evaluation conducted by the city of Minneapolis in

1997 concluded that the agency had "been able to substantially

decrease the number of evidentiary hearings...because more and more

complaints are being resolved through mediation or stipulation of

facts" (Minneapolis Civilian Review Authority 1997).

The effectiveness of the Minneapolis

CRA relative to other oversight agencies

is discussed in Walker (2001) and Finn

(2001).

The success of

49 Existing Citizen Complaint Mediation Programs

the mediation program in Minneapolis is closely related to the overall

effectiveness of the CRA and a strong commitment to accountability

on the part of a new police chief, who took office in 1995 (Walker

2001).

Complaint Process in Minneapolis

A citizen who contacts the Minneapolis Police Department is referred

to the CRA. The CRA has original jurisdiction over citizen complaints

against Minneapolis police officers. However, the police department

may open its own investigation of an officer based on its own

information. Once a complaint is received by the CRA, it is classified

as a precomplaint until it is signed by the complainant. Within 30 days

of the date on which a signed complaint is filed, the CRA executive

director makes a decision regarding its disposition: dismiss the

complaint, forward the case for investigation, or refer it for mediation.

The executive director may dismiss the complaint for one or more of

the following reasons: (1) the facts of the case are not disputed, and

no reasonable person could sustain a complaint based on the facts;

(2) no evidence of officer misconduct exists; (3) the alleged facts are

so unbelievable that no reasonable person could sustain the complaint

based on such facts; and (4) the complainant fails to cooperate.

If a complaint appears to have merit, the executive director orders an

investigation. The investigator has 120 days from the date a signed

complaint is filed to conduct a thorough investigation of the case.

When the investigation is completed, CRA's executive director

determines whether probable cause of misconduct exists. If probable

cause is found, a formal hearing is held before a three-person panel

drawn from CRA's board of directors. The hearing is a closed quasi-

judicial proceeding. CRA's executive director presents the case, and the

officer is generally represented by an attorney. After the hearing, the

panel privately discusses the matter and votes on whether to sustain

the complaint. Sustained complaints are forwarded to the chief of

police, who determines what disciplinary action, if any, should be

taken. The chief may not overturn CRA's determination that a

complaint is sustained.

Selecting cases for mediation. The nature of the complaint is a key

issue in the executive director's decision to refer to mediation. As a

matter of policy, use-of-force complaints are ineligible for mediation.

(The few exceptions to this rule involved cases where there was no

injury.) Mediated complaints typically involve situations such as

50 Mediating Citizen Complaints Against Police Officers

allegations of officer discourtesy (e.g., use of profanity or abusive

language, rudeness, etc.) or verbal conflict that has occurred between

the citizen and the officer.

Officers who have mediated a complaint involving a similar allegation

in the previous 12 months are ineligible for mediation. CRA also does

not refer complaints involving an officer who has been the target of

previous complaints and who they believe has attitudes that are

incompatible with the spirit of mediation.

CRA officials also do not refer complaints for mediation when they

sense that the complainant is angry or unreasonable and consequently

is not a good candidate for mediation. Specific characteristics

regarding the intensity of the conflict between the officer and the

complainant also are important issues when considering mediation.

For example, if a verbal confrontation occurred between the two

parties or the complaint includes extreme use of force, the complaint

might be deemed inappropriate for mediation.

Referring complainants and officers. Once cases are deemed

eligible for mediation, CRA staff contact the complainant and then

the officer to offer mediation as an alternative. Each party has the

right to decline. If one party does decline, the complaint is

investigated by CRA in the traditional manner.

Once the complainant indicates an interest in mediating the case, the

officer who is the subject of the complaint is contacted. If the officer

agrees to participate, the case is referred to the Minneapolis Mediation

Center.

Scheduling the mediation session. Once a case has been referred to

the mediation center, staff members contact both the citizen and the

officer to schedule a mediation session. The location of the session is

an important issue because, ideally, it should be convenient to both

parties. In Minneapolis, the mediation session is typically scheduled at

a neutral location, such as the local library, community center, hotel, or

other location (i.e., not at the police department) where both parties

will feel comfortable communicating.

51 Existing Citizen Complaint Mediation Programs

Concluding the mediation session. A successful mediation session

ends with the citizen and the officer signing an agreement that

documents the outcome. The agreement ensures that no further

action (legal or otherwise) will be taken on the part of the

complainant or the officer. At the end of the session, the mediators,

citizens, and officers are debriefed. This ensures that both the citizen

and the officer understand and can confirm the goals set forth in the

session and whether they have been accomplished. To provide

feedback and discuss the dynamics involved in a specific case,

mediators are debriefed by CRA.

Mediation session outcomes can take a variety of forms. Mediators in

Minneapolis note that citizens and officers individually or collectively

may apologize to one another without further action or contact

between them. It is not unusual, however, for both parties to agree to

disagree. Although both parties agree that the case is closed, they may

not agree on the facts of the case or who was at fault. If both the

citizen and the officer are unhappy with the outcome of the mediation

session, however, the session is deemed unsuccessful and the case is

sent back to the CRA for investigation.

The Minneapolis Mediation Center

CRA has established a strong relationship with the Minneapolis

Mediation Center, an independent agency that uses volunteers to

mediate citizen complaints. The volunteer mediators complete 30

hours of training (as prescribed by the Minnesota Supreme Court),

which consists of role playing and observation of mediation sessions.

Moreover, mediators must perform eight hours of volunteer service

and complete six credit hours of inservice continuing education per

year. A staff member at the mediation center states that most

mediators exceed their required volunteer hours. In addition, the extra

hours help volunteers develop their skills as mediators.

Individual mediators handle cases on a pro bono basis. Interviews

with key individuals indicate that most mediators are motivated by

strong altruistic feelings. They take personal satisfaction in helping

other people resolve their conflicts and believe they are helping build a

better community. One mediator described a successful mediation as

"magic." However, some volunteer mediators evidently have more

self-centered motives, such as laying the foundation for a private

mediation practice.

52 Mediating Citizen Complaints Against Police Officers

An International Perspective: Complaint Mediation in Other

Countries

Mediation and conciliation (see Chapter 1 for definitions), or what

they call informal resolution (IR), is far more widely used to resolve

complaints against police in other countries, particularly English-

speaking countries. In Canada, the United Kingdom, Australia, and

several other countries, IR or some other informal procedure is

commonly used to settle nonviolent, less serious complaints against

police officers. In some agencies, as many as one-third of all

complaints are resolved in this manner.

The Police Complaints Authority (PCA) in the United Kingdom

introduced IR in 1985. The percentage of complaints resolved

through IR has steadily risen from eight percent in 1985 to 24 percent

in 1989 and 34 percent in 1997-98 (Corbett 1991; United Kingdom

Police Complaints Authority 1998). The Ontario Civilian Commission

on Police Services, which is responsible for several dozen local law

enforcement agencies, resolved about 15 percent of all complaints in

1998 through IR. The use of IR was significantly higher in some local

jurisdictions than in others (about 25 percent of all cases in the

Hamilton-Wentworth Regional Police), suggesting that local leadership

and resources make a critical difference (Ontario Civilian Commission

on Police Services 1999).

The IR procedures used in other countries do not necessarily

represent mediation as it is defined in this report, however. IR in these

countries often represents conciliation: complaints are resolved

without a face-to-face meeting between the complainant and the

officer in question and without a third-party mediator (see Chapter 1).

Some agencies, such as the Queensland (Australia) Police Service, use

both IR (i.e., conciliation) and mediation (Holland 1996a; Holland

1996b). The IR program in Queensland has four stages: officials

assess the nature of the complaint, they speak with both parties

separately about the alleged complaint, they discuss possible outcomes

of the case with both parties separately and come to a mutual

agreement, and they determine whether the process was successful.

The purpose of IR is not to establish fault, but rather find out what

happened and, when necessary, give advice or guidance to the officer

without the risk of punishment or threat to promotional prospects"

(Holland 1996b). Between mid-1994 and mid-1995, 30 percent of the

3,618 complaints received by the Queensland Police Service were

resolved through IR. Only two cases were mediated; the rest were

resolved through conciliation (Corbett 1991).

53 Existing Citizen Complaint Mediation Programs

Official data reported in agency annual reports do not always permit

meaningful comparisons with other agencies. The 1998 Annual Report

of the British Columbia Police Complaint Commissioner, for example,

includes the category "Informal Resolutions and Withdrawals" (Police

Complaint Commissioner British Columbia 1998). It is not possible to

determine exactly how many of the cases in this category were

actually conciliated or mediated.

55 Planning For a Successful Mediation Program

Chapter 5

Planning For a Successful Mediation Program

Introduction

Establishing a successful mediation program requires careful planning.

As previously discussed, most existing police complaint mediation

programs handle very few cases each year. We believe that this is due

in part to a lack of or insufficient planning. In some instances,

mediation was authorized by the ordinance establishing a new citizen

oversight agency. It is likely that planning the mediation program

became a lower priority relative to such issues as hiring staff and

creating the basic complaint intake and investigation process. In

addition, program officials report that rank-and-file police officers

voiced the strongest opposition to the development of mediation

programs, suggesting a critical lack of involvement of police and their

union representatives in the planning process.

This chapter identifies the important elements of a mediation

program planning process, drawing on the experience of the San

Diego Police Department.

Elements of the SDPD Planning Process: A Model

Apparently, many if not most existing mediation programs were

created with little if any planning. An exception to this rule is the

program developed by the San Diego Police Department (SDPD).

The formal planning process undertaken by SDPD took nearly two

years. Although this may appear to be an extremely long time, key

individuals involved believe that the time spent was an invaluable

investment. According to a participant in the planning process,

program officials can either work out the potential issues in advance

or deal with them later.

The elements of the San Diego planning process are summarized in

box 5–1.

56 Mediating Citizen Complaints Against Police Officers

Box 5–1

Elements of the San Diego Planning Process

1. Recognize the need for planning.

2. Take your time: the process counts.

3. Create a planning mechanism.

4. Pinpoint responsibility.

5. Involve all relevant stakeholders.

6. Research existing mediation programs.

7. Identify key issues.

8. Identify local resources.

9. Discuss and resolve issues.

10. Secure commitments.

11. Finalize plan.

Source: San Diego Police Department (2000)

Recognize the Need for Planning

The idea of mediating complaints against San Diego police officers

had been discussed for a number of years. T

he San Diego Citizens

Review Board had brought up the issue several times, and various

SDPD members had discussed the issue. SDPD already had some

experience mediating other types of cases. For example, working with

the San Diego Mediation Center, it had developed a program to

ensure compliance with restraining orders in domestic violence or

other kinds of neighborhood disputes. In addition, SDPD's own

Equal Employment Opportunity office had some success with

mediating internal employee problems (Glensor and Stern 1995).

This experience illustrated the potential for mediating citizen

complaints. Once the SDPD decided to develop a mediation program,

it recognized that careful planning was needed.

Take Your Time: The Process Counts

The director of the Regional Community Policing Institute (RCPI) in

the San Diego area, which is funded by the U.S. Department of Justice

Office of Community Oriented Policing Services (COPS), emphasizes

that program planners must take the time to work through all the issues

in advance.

Taking the necessary time is often extremely difficult for many of the

people involved. Some will be eager to establish the program as

quickly as possible. Others who are already familiar with mediation

57 Planning For a Successful Mediation Program

will be ready to design the program immediately. Virginia Van Meter

explains, "we could have written the whole thing [the final report] in a

couple of weeks," but she believes that would have been a mistake. As

she puts it, "the process is the whole thing."

Why should planners take so much time? First, developing "layers of

partnership" is important. A mediation program will bring together

agencies that have not necessarily worked together in the past. The

police department and the local mediation center, for example, may

not have had a prior relationship. It takes time to develop trust and

good working relationships. A mediation program may involve

agencies that have had negative interactions (e.g., conflict or distrust)

in the past. The police department and the independent citizen

complaint agency, for example, may have inherited a legacy of conflict

and distrust typically associated with the issue of citizen complaints. A

good working relationship is essential because, in those jurisdictions

where an independent complaint review agency exists, the agency

serves as the intake point for complaints. The failure of many

mediation programs to handle very many cases is due, in part, to

distrust or even active opposition from the local police union. A good

planning process includes union representatives and allows time to

address concerns and build understanding and trust.

A second important reason for proceeding slowly is that a number of

issues need to be thought through and resolved in advance. For

example, specific provisions in the union collective bargaining

agreement may need to be addressed in the mediation process.

Moreover, some states may have provisions in their open meetings or

public records laws that have potential implications for a mediation

program. As one official explained, it is far better to deal with

problems in the initial planning stages and reach consensus than to

have a crisis after a program has officially begun.

Create a Planning Mechanism

Once SDPD decided to develop a mediation program, it established a

formal planning mechanism. This took the form of a formal

mediation planning committee.

Pinpoint Responsibility

Directing the planning committee was the responsibility of the

lieutenant commanding the SDPD Internal Affairs Unit.

58 Mediating Citizen Complaints Against Police Officers

Involve All Relevant Stakeholders

One of the key elements in the SDPD planning process was

involvement of all relevant stakeholders in the citizen complaint

process and the planned mediation program. As the commander of

the Internal Affairs Unit explained, "the philosophy of the SDPD is

one of inclusion and not exclusion."

Consequently, members of the mediation planning committee

included:

• SDPD command officers, including commanders responsible for

the Internal Affairs Unit.

• Rank and file officers.

• The head of the SDPD EEO office, who had successful

experience with mediating internal employee disputes.

• The director of the local mediation center.

• The director of the local citizen oversight agency.

• A representative of the police officers' collective bargaining

organization.

• A representative of the collective bargaining organization

representing non-sworn employees of the SDPD.

• Representatives of the community.

The RCPI director was not a formal member of the planning

committee, but was asked for input at various times throughout the

process.

Other communities may have other relevant stakeholders that should

be included. The best course of action is to be inclusive and cast as

wide a net as possible.

Research Existing Mediation Programs

Considerable time and effort was spent during the SDPD planning

process to research mediation programs. For example, SDPD obtained

documents from existing mediation programs. Committee members

traveled to other cities to study their mediation programs, and in a

critical contribution, RCPI funded the travel (planning committees will

need to secure the necessary funds for travel and other expenses). The

committee also requested draft versions of sections of this report that

we had written by the time of their research.

Additional mediation programs will probably be established before

this report is published. Existing programs, meanwhile, will have

gained more experience. The new program planning experiences will

offer more opportunities to learn about which approaches to avoid

and which work best.

59 Planning For a Successful Mediation Program

Identify Key Issues

The SDPD planning committee identified, researched, and discussed

key issues associated with mediation programs (see Chapters 3 and 4).

The committee then dev

eloped 10 specific program objectives (see

Box 5–2). The responsibilities of SDPD officials were clearly

specified. The Lieutenant in charge of the Internal Affairs Unit was

principally responsible for implementing and monitoring the program.

Box 5–2

Objectives of the Mediation Program

San Diego Police Department

I. To increase the satisfaction of community members and police

department personnel with regard to the resolution of citizen complaints.

II. To foster understanding and open communication between parties in a

neutral setting.

III. To provide the opportunity for parties to accept responsibilities and make

changes, if necessary, to resolve conflict.

IV. To promote effective police/community partnerships.

V. To reduce the number of complaints filed by citizens.

VI. To reduce the number of disciplinary actions.

VII. To develop problem solving opportunities for both parties.

VIII. To conserve Department resources.

IX. To improve the Department's image in the community.

X. To provide a timely alternative to the formal complaint process.

Source: San Diego Police Department Planning Committee.

Resolution of the key issues in San Diego was facilitated by inclusion

of all the relevant stakeholders. Particularly important was the

inclusion of the union representatives of both sworn and civilian

officers of the department. In other cities, the major objections to

mediation came from union representatives–and evidently some

programs are not successful because of misunderstanding and distrust

on the part of rank-and-file officers and their unions. The head of the

SDPD's EEO office not only helped to identify and resolve potential

60 Mediating Citizen Complaints Against Police Officers

legal problems but also brought the successful experience of that

office in mediating internal personnel problems.

One issue that needs to be addressed by all communities is the racial

and ethnic composition of the local population. The planning

committee needs to determine whether sizeable groups do not speak

English, whether the complaint process is accessible to them, and

whether the mediation program will be able to accommodate them.

Identify Local Resources

The SDPD planning committee identified the local resources

necessary for a successfully functioning mediation program, the most

important of these being the source of program mediators.

During the planning process, the planning committee or a

subcommittee should identify local mediation centers that might want

to be affiliated with the program. If no formal mediation center exists,

other sources of mediators (e.g., the local bar association) should be

identified.

Once a source of mediators has been identified, the planning

committee should discuss financial arrangements that would be

acceptable to prospective mediators. Some mediation programs pay

individual mediators a fixed fee per case. Other programs rely on

unpaid mediators but pay an administrative fee to a mediation center.

The planning committee should also identify the prospective location

or locations for mediation sessions. These locations need to be

convenient for participants and neutral. For example, a police facility

would not be considered neutral by most complainants. The

arrangements and possible costs, if any, for these locations should be

determined.

Discuss and Resolve Issues

As discussed in Chapter 3, there are a number of complex issues

associated with mediation. The planning committee or task force

needs to fully discuss and resolve these issues.

With respect to the type of cases that will be eligible for mediation,

the San Diego planning committee decided to follow the example of

San Francisco and prohibit the mediation of complaints involving

racial or gender slurs. Sample forms were developed. A participant

feedback survey was also developed.

61 Planning For a Successful Mediation Program

Secure Commitments

As the planning process nears completion, the planning committee

should secure firm commitments from participants, including the

mediation center or other source of

individual mediators and

especially the representatives of the police officer rank and file. A

clear understanding that there are no serious objections to the

proposed program is critical. Assuming that the planning committee

includes representatives of the rank and file, all potential problems

should have been discussed and resolved by this point in the process.

Finalize Plan

The last stage in the planning process is to finalize the plan by

verifying that consensus exists on all of the major issues. If there are

any uncertainties, for example, about funding or the participation of

the local police union, then it is best to take additional time to resolve

them.

Ongoing Monitoring and Evaluation: Research Questions

Planning a successful mediation program does not end once it has

been begun operating. Ongoing monitoring and evaluation is

necessary to ensure that the program is working properly and meeting

its objectives. Formal program evaluation can help document

successes and identify problems that need attention. Unfortunately,

little is known about the actual effect of mediating citizen complaints

against police officers. Only a few programs have mediated enough

cases to enable even modest evaluations. The major research questions

related to mediation programs are discussed below.

For discussions of the methodological

issues pertaining to evaluating ADR

programs, see McGillis (1997), Chapter 4;

and McGillis (1986), Chapters 5, 6, and 7.

See also the methodology used in Clarke,

Ellen, and McCormick (1995).

Effect on Participants

Citizen complainants

1. Does mediation provide a more satisfactory experience for

citizen complainants than traditional complaint investigation

procedures? Specifically:

• Are complainants more satisfied with the process?

• Are complainants more satisfied with the outcomes of

mediation?

2. Does mediation provide citizen complainants with a better

understanding of policing and police officers than traditional

complaint investigation procedures?

62 Mediating Citizen Complaints Against Police Officers

Police officers

3. Does mediation offer police officers with a more satisfactory

experience than traditional complaint investigation

procedures? Specifically:

• Are officers more satisfied with the process?

• Are officers more satisfied with the outcomes?

4. Do officers gain a better understanding of citizens and citizen

complaints through mediation than through traditional

complaint investigation procedures?

Police Accountability

5. Do individual officers who resolve complaints through mediation

have fewer complaints filed against them?

6. Do officers experienced in mediation have measurably different

attitudes about citizens, citizen complaints, and complaint

procedures than officers inexperienced in mediation?

Police-Community Relations

7. Does mediation help to lessen conflict between the police and

racial/ethnic minority communities? Specifically:

• Do citizen complainants who experience mediation have a

more positive attitude toward police than complainants who

do not choose mediation or citizens in the general

population?

• Do police officers experienced in mediation have a more

positive attitude toward citizens of different racial/ethnic

groups than officers inexperienced in mediation?

8. Does the existence of a mediation program enhance trust and

confidence in police among racial/ethnic minority group leaders?

Community Policing

9. Does a mediation program contribute positively to community

policing? Specifically:

• Do citizen complainants perceive a connection between the

goals of mediation and the goals of community policing?

• Do police officers perceive a connection between the goals of

mediation and the goals of community policing?

63 Planning For a Successful Mediation Program

Citizen Complaint Process

10. Are mediated complaints resolved more quickly than investigated

complaints?

11. Is mediating complaints less expensive than investigating

complaints?

12. Assuming evidence shows that mediation provides a more

satisfactory experience for complainants, does the existence of a

mediation program lead to an increase in the number of

complaints filed?

Creation of Mediation Programs

13. What factors contribute to the creation of a citizen complaint

mediation program in a local community? What are the most

important factors?

• Community leadership?

• Police department leadership?

• Leadership among elected officials?

• The strength of an ADR culture, as indicated by the

prevalence of mediation programs in the local community?

14. What factors inhibit the creation of a citizen complaint mediation

program?

• Opposition from police department leadership?

• Opposition from the rank and file and the police union?

• A lack of support from elected officials?

• A lack of financial resources?

• The absence of a supportive ADR culture in the local

community?

Developing a Significant Caseload

15. What factors contribute to or inhibit the development and

maintenance of a reasonable mediation caseload?

• The quality of informational materials available?

• Support from police department leadership?

• Support from the police rank and file or union?

• Adequate and dependable financial support?

• Location of and accessibility to mediation sessions?

64 Mediating Citizen Complaints Against Police Officers

16. What factors account for a significant change in caseloads over

time (increase or decrease)?

• Increased public awareness of and satisfaction with the

mediation program?

• Increase in police misconduct?

• Problems with administration of the mediation program (e.g.,

staff shortages, client dissatisfaction with services, etc.)?

• Decrease in police misconduct?

Conclusion

Planning is crucial to the success of a mediation program. As Chapter

4 indicates, most existing citizen complaint mediation programs have

extremely low case loads. To a great extent this is due to a lack of

understanding or opposition to the mediation of citizen complaints.

And as Chapter 3 indicates, there are many complex issues involved in

the mediation of citizen complaints against police officers. Careful

planning can help to overcome potential problems. The most

important lesson of the San Diego planning process, as one key

official explained, is taking the time to plan and address all of the key

issues in advance.

65 Traditional Citizen Complaint Procedures

Chapter 6

Traditional Citizen Complaint Procedures

Introduction

To fully appreciate the potential contributions of mediation, the

nature of traditional citizen complaint review procedures must be

understood. These procedures, in turn, should be viewed in the

context of police-community relations (PCR), the nature of routine

policing, and the extent of police misconduct. This chapter discusses

these issues and describes the development and characteristics of

traditional citizen complaint procedures.

Many citizen complaints are

not officially about race, but

are really about race.

— Vivian Berger, Mediator,

New York City

Citizen Complaint Procedures in Context

Police-Community Relations

The history of PCR defines the context in which citizen complaints

arise. The essential features of

this history include racial polarization

over alleged police misconduct and discontent with internal police

complaint procedures.

Concern about police misconduct on the street continues. A number

of cities across the country have experienced extreme controversy

arising from fatal shootings of citizens and allegations of excessive

use of physical force. Additionally, the issue of racial profiling has

arisen, involving allegations that traffic police single out African-

American drivers for unwarranted stops and searches (American Civil

Liberties Union 1999). Consequently, despite many important changes

and improvements in policing, allegations of race discrimination and

excessive use of force continue to embroil American police

(Walker 2000).

Nature of Routine Policing

The nature of routine policing also defines the context in which

citizen complaints arise. It is now well established that, contrary to

popular mythology, American police officers are primarily peace

keepers and problem solvers, not crime fighters. Police officers

routinely deal with the many unpleasant and unruly events that others

cannot or do not want to handle (Bittner 1990; Reiss 1971; Goldstein

1977). American citizens rely on police to solve all sorts of problems.

During some encounters, citizens are hostile, belligerent, or directly

abusive or resistant to the officers called to the scene. This puts

enormous stress on officers and calls for great self-control on their

part.

66 Mediating Citizen Complaints Against Police Officers

Officers are asked to handle a wide range of often ambiguous

situations. In any given situation, the best course of action for the

officer to take, such as arrest or not arrest, issue a warning or spend

time counseling the people involved, and so on, simply may not be

clear. Discretion is the essence of police work (Davis 1975; Walker

1993).

Perhaps the most important kind of discretion that police must

exercise relates to the use of force. Although police officers are legally

empowered to use force in certain situations, they may use only the

level of force necessary to meet a lawful police objective. Many citizen

complaints include allegations that the officer or officers used

excessive force. However, whether the officer's use of force was

genuinely excessive or whether the officer responded appropriately is

often unclear (Geller and Toch 1995).

The setting of routine police-citizen encounters is an important

complicating factor in regard to citizen complaints. Routine police

work has been characterized as a low visibility activity because officers

generally work alone or in pairs, free of direct supervision (Goldstein

1960). Consequently, not only are they free to use their discretion in

handling each situation, but they also have considerable opportunities

to bend or break the rules if they choose to do so.

The low visibility of most police work has enormous implications for

the investigation of citizen complaints. In the absence of independent

corroborating evidence (a witness or medical records), most

complaints are not sustained.

Unsustained complaints often leave

both the complainant and the officer unsatisfied, if not angry and

alienated. The complainant feels that his or her complaint was not

taken seriously or investigated thoroughly or fairly. The police officer

feels he or she was investigated for a groundless allegation.

The problems associated with

investigating and sustaining citizen

complaints are discussed in Walker

(2001), Chapter 3.

Extent of Police Misconduct

The extent of police misconduct is a matter of great controversy.

Studies show that police use of force (i.e

., physical force) occurs in

about one percent of all encounters between police and citizens

(Bureau of Justice Statistics 2001).

For a discussion of the problems

related to studying police use of force,

see Bureau of Justice Statistics (1999b).

Some of these studies estimate

that about two-thirds of these use-of-force incidents are justified by

the circumstances of the event and that about one-third of the

incidents are unjustified or excessive (Reiss 1968; Worden 1995). Many

critics of police dismiss these estimates as unrealistic ally low. These

figures must be considered in the context of several factors, however.

67 Traditional Citizen Complaint Procedures

First, when the one-third of one percent estimate is applied to the

total annual number of police-citizen contacts in any police

department, the annual total may appear ominous.

Second, the studies previously cited refer to police use of force, not

allegations of rudeness, discourtesy, racial or ethnic slurs, or failure to

provide adequate service, which are the bulk of citizen complaints

(Minneapolis Civilian Review Authority 2000). As a result, the total

number of alleged misconduct incidents is far greater than one

percent of all contacts. Note also that some citizens might apply the

term "police brutality" to incidents that involve a racial slur rather than

actual physical force (President's Commission on Law Enforcement

and Administration of Justice 1967a). As law professor Charles

Lawrence argues, a racial epithet is extremely hurtful and is often felt

as if it were a physical blow (Lawrence 1990).

Third, use of force and other misconduct incidents are concentrated

in certain segments of the population. More than 30 years ago, Albert

Reiss argued that the typical victim of police use of force is a young,

low-income male, regardless of race (Reiss 1971). Other research

indicates that African-American males are overrepresented among

victims of misconduct (Pate and Fridell 1993; Worden 1995). Reiss

also argued that individual incidents accumulate over time, creating a

sense of systematic harassment in the minds of their victims

(Reiss 1971).

Finally, the enormous public attention to allegations of excessive force

has deflected attention from the most common forms of police

behavior that lead to citizen complaints. Rudeness, discourtesy, or a

failure to provide adequate service make up the majority of

complaints in every jurisdiction. Moreover, it is widely believed that

many more potential complaints of this nature are not brought

forward by citizens (Walker 2001). Complaints involving these

relatively less serious forms of police misconduct are among those

most suitable for mediation.

In sum, scholars widely disagree about the extent of police use of

force and other forms of misconduct. Nonetheless, the perception of

misconduct has been a major issue in American society for decades.

Moreover, a widespread perception exists among racial and ethnic

minorities that citizen complaint procedures administered by police

departments do not adequately address the problem.

68 Mediating Citizen Complaints Against Police Officers

Development of Traditional Citizen Complaint Procedures

Since the 1950s, in response to the controversy over brutality and

inadequate responses to citizen complaints, civil rights leaders have

demanded the creation of independent citizen review procedures to

handle complaints (American Civil Liberties Union 1992; National

Association for the Advancement of Colored People 1995; Walker

2001). Police departments have responded by either creating internal

procedures for handling citizen complaints or revising existing

procedures. In the 1960s, many police departments did not even have

a special unit or procedure for handling complaints (President's

Commission on Law Enforcement and Administration of Justice

1967b). Today, virtually all law enforcement agencies have a formal

procedure for receiving and investigating complaints, either through a

separate internal affairs unit or an officer designated for that purpose.

The law enforcement accreditation standards mandate this approach

(Commission on Accreditation for Law Enforcement Agencies 1999).

Improvements in internal complaint procedures include increased

staffing, better record keeping and public reporting, and facilitating the

filing of complaints (Pate and Fridell 1993). A number of police

departments, for example, now house the internal affairs unit in a

building separate from the police department to allay citizen anxieties

about visiting police headquarters. In addition, and perhaps most

important, progressive police chiefs have stressed the importance of

accountability and have instituted procedures such as mandatory

reporting of use of force and early warning systems to enhance

accountability.

Civil rights activists have generally found internal police complaint

procedures to be inadequate and continue to demand independent

complaint procedures. In the past 15 years, these demands have been

increasingly successful, and the number of citizen oversight agencies

has grown from an estimated 20 in 1985 to more than 100 by 2001.

Most important, about 80 percent of the police departments in the 50

largest cities are subject to some form of citizen oversight

(Walker 2001).

Citizen oversight agencies vary considerably in terms of their structure

and formal powers. Some are independent of the police departments

they serve and are responsible for investigating all citizen complaints.

The Minneapolis Civilian Review Authority (CRA) and the San

Francisco Office of Citizen Complaints are examples of these

agencies. In other jurisdictions, an external oversight agency

contributes to the complaint process but does not conduct the initial

fact-finding investigation of complaints. Finally, some cities and

69 Traditional Citizen Complaint Procedures

counties have an auditor form of oversight (e.g., the San Jose

Independent Police Auditor), in which an independent agency audits

or monitors the police department's internal affairs unit (Walker 2001;

Finn 2001).

The mediation of complaints represents both an extension of the

citizen oversight movement and a departure from it. On one hand,

most existing mediation programs are associated with oversight

agencies. On the other hand, the operating assumptions of mediation

differ from those of traditional internal and external complaint

procedures.

Characteristics of Traditional Citizen Complaint Procedures

Despite the structural differences between traditional police and citizen

oversight complaint investigation systems, they share the same essential

features, the most important being an adversarial approach to handling

complaints. The criminal trial model best exemplifies this approach.

Criminal Trial Model

Both internal and external complaint investigation systems use a

criminal trial model of dispute resolution (Walker and Kreisel 1996).

That is, they are quasi-judicial procedures in which a person is accused

of wrongdoing, and the process is designed to determine guilt or

innocence for the purpose of punishing those who are found guilty.

The essential difference between internal and external complaint

procedures is that the investigators are not sworn police officers in the

latter. The formal and adversarial nature of the criminal trial model has

several characteristics.

First, citizen complaints are subject to a formal fact-finding investigation

to determine whether the officer committed the alleged misconduct.

Some complaint procedures include a formal hearing in which the

evidence against the officer is presented and the officer or his or her

representative has an opportunity to rebut the evidence. Formal

hearings of this sort are equivalent to a trial in a criminal proceeding

and are the epitome of the formal, adversarial, and quasi-judicial

nature of complaint proceedings. Hearings include representation by

attorneys, rules of evidence, presentation of evidence, and cross-

examination.

Second, the accused officer enjoys a presumption of innocence during

the course of the investigation. The burden of proof is on the

investigators to develop sufficient evidence to sustain the allegation or

allegations.

70 Mediating Citizen Complaints Against Police Officers

Third, the disposition of a complaint is based on the strength of the

evidence. Some agencies use a "preponderance of the evidence"

standard, whereas others use a "clear and convincing" standard. If the

facts support the allegations, the complaint is "sustained," and the

officer is subject to discipline by the police department (Walker 2001).

Fourth, the complaint process is oriented toward the punishment of

officers who are found guilty of the alleged misconduct.

Citizen oversight procedures for investigating complaints embrace all

these elements. They differ from internal police complaint procedures

to the extent that they provide some input into the process by people

who are not sworn police officers.

Other characteristics of the criminal trial model. Given the

formal, bureaucratic nature of the process, complaint investigations

based on the criminal trial model are generally time consuming. One

of the most pervasive criticisms of both internal and external

complaint procedures is in fact the lack of timely disposition of

complaints (Walker 2001). A study in New York City in the 1980s

found that 65 percent of complainants felt that the process "had taken

too long" (Sviridoff and McElroy 1989b). In the most notorious

recent example, the old Washington, D.C., Civilian Complaint Review

Board (CCRB) (abolished in 1995) took up to three years to handle

some cases. In mid-2000, the internal affairs unit of the Portland,

Oregon, police department was taking an average of 13 months to

investigate cases. (In response to this problem, the staff of the unit

was doubled and disposition times have presumably dropped.)

One of the ironies of traditional complaint procedures is that they

have been made increasingly formal to ensure thoroughness and

accountability (e.g., requiring more documentation) and to protect the

rights of both sides. Elaborate formal procedures, however, effectively

delay the process and make it less personal. Delay and impersonality,

however, are likely to decrease the level of satisfaction among clients.

This problem is not confined to citizen complaint procedures but

extends to all modern legal procedures.

Galanter (1974), in fact, argues that

the more powerful parties to a dispute

(the "haves") are better positioned to

manipulate formal procedures to their

advantage. See also Menkel-Meadow

(1999).

One significant characteristic of the criminal trial model is that the

complainant and the subject officer(s) do not meet. Complainants and

officers are interviewed separately. In important respects, the

complainant (or "victim") is even more excluded from the process

than crime victims in the criminal trial process. At least in the few

criminal cases that do go to a trial, the victim might be called to testify

and be in the presence of the accused in the court room. It is on the

issue of face-to-face contact that mediation differs radically from

traditional complaint investigation systems, whether internal or

external. As Chapter 2 explains, the face-to-face aspect of the process

is the key to achieving many of the potential benefits of mediation.

Penal style of social control. Scholars of the sociology of law

provide a framework that places citizen complaint procedures in a

useful perspective. Existing complaint procedures represent a penal

style of social control, with punishment being the ultimate result.

Donald Black identifies alternative styles of social control and their

respective solutions as compensator y, in which the solution is some form

of payment or other compensation; therapeutic, in which the accused

person receives some form of help; and conciliator y, in which the

disputing parties achieve some form of resolution (Black 1976).

Unlike the other styles, the penal style does not include a process for

making payment to complainants, helping either the complainant or

the police officer, or conciliating the complaint. Mediation clearly falls

within the conciliatory style of social control with an emphasis on

conflict resolution.

When a complaint is not

sustained, both sides feel

that they have lost, that

they have not been heard,

and that the process did not

work for them.

— Barbara Attard, Director,

Berkeley Police Review

Commission

Sustain Rates

Complaint investigation procedures have traditionally been evaluated

in terms of the percentag

e of complaints they sustain in favor of

complainants (although some experts argue that the sustain rate is not

a good performance measure) (Walker 2001). The data on sustain rates

have important implications for mediation.

Police complaint procedures typically sustain between 10 and 13

percent of all complaints. A national survey by the Police Foundation

found that municipal police departments sustain only 10 percent of all

complaints (Pate and Fridell 1993). This figure is extremely low. Critics

of the police cite the fact that the officer "wins" 90 percent of the

time as evidence that internal complaint procedures are "whitewashes"

that excuse and cover up officer misconduct (Neier 1966).

Independent citizen oversight procedures do not sustain a significantly

higher percentage of complaints, however. CRA finds probable cause

in only about 10 percent of complaints and then sustains only half of

those after a formal hearing (Minneapolis Civilian Review Authority

2000). The problem of low sustain rates is not unique to the United

States–the Police Complaints Authority, a national complaints system

in the United Kingdom, sustains less than five percent of all

complaints (Maguire 1991).

Traditional Citizen Complaint Procedures

72 Mediating Citizen Complaints Against Police Officers

Barbara Attard, Director of the Berkeley Police Review Board, argues

that unsustained complaints often leave both parties feeling angry and

alienated (Attard 1999). Complainants feel that their allegations were

not taken seriously, and officers feel they were subject to investigation

for no good reason (Sviridoff and McElroy 1989b). In this respect,

traditional complaint procedures may only aggravate tensions between

the community and the police.

Some experts conclude that low sustain rates are an inherent feature

of complaints and complaint investigation procedures and not entirely

the result of shortcomings on the part of the investigating agency

(although the problems of many agencies cannot be ignored) (Walker

2001; Gellhorn 1966). For this reason, Walker argues that the sustain

rate should not be used as a performance measure and that complaint

procedures should be evaluated on the basis of other criteria. One

criterion is satisfying the goals of complainants, and there is

considerable evidence that mediation does a better job of that than

traditional complaint investigations (Walker 2001).

Insofar as mediation may result in some positive outcome–an apology,

an explanation, or greater understanding between the parties, which

can legitimately be considered a "success"–the overall success rate will

be higher than the prevailing 10 percent average.

Traditional Informal Complaint Procedures

In practice, police departments have a long history of handling

complaints informally. Unfortunately, these practices have been a

major part of the problem of inadequate complaint procedures and

represent an abuse of the concept of informal dispute resolution.

As previously discussed in this chapter, until the 1960s, most police

departments had no formal procedure for receiving or investigating

citizen complaints (President's Commission on Law Enforcement and

Administration of Justice 1967b). Anecdotal evidence indicates that

when aggrieved citizens appeared at police stations to lodge

complaints, they were frequently turned away or even threatened with

arrest. The Christopher Commission (1991) found that Los Angeles

police officers engaged in this practice as recently as the early 1990s.

Informal resolution, to the extent it existed, often involved desk

officers attempting to dissuade citizens from pursuing the matter,

arguing that they had no basis for a valid complaint or that someone

would "take care of" the matter (U.S. Commission on Civil Rights

1994). Additional evidence shows that even when the desk officer

recorded a citizen's allegation, a formal investigation often never

occurred. Following its creation in 1953, the New York City CCRB

implemented a series of administrative reforms to ensure that

73 Traditional Citizen Complaint Procedures

complaints would be formally recorded and sent to police

headquarters for investigation (Kahn 1975).

The practice of using informal methods to discourage citizens from

lodging complaints is not confined to the United States. The Alberta

(Canada) Law Enforcement Review Board concluded that "in some

instances the procedure has been used to stall, deflect, bury, or

marginally respond to complaints" (Alberta Law Enforcement Review

Board 1997).

Mediation as an Alternative to Traditional Complaint

Procedures

Mediation is a very different approach to handling citizen complaints

against police officers. Kimberlee E. Kovach, a leading authority on

mediation, defines the difference between the adversarial criminal trial

model and mediation in the following terms: "The litigation system,

based on the win-lose dichotomy, encourages an adversarial approach.

Conversely, mediation relies on an interest-based collaborative

approach to problem solving" (Kovach 1997). Box 6–1 shows the

essential differences between mediation and the criminal trial model.

Box 6–1

Essential Differences Between Mediation and the Criminal Trial Model

Mediation Criminal Trial Model

Informal process Formal process

Face-to-face meetings No face-to-face contact between

police officer and complainant

Emphasis on dialog Emphasis on formal testimony

75 Mediation and the ADR Movement in America

Chapter 7

Mediation and the ADR Movement in America

Introduction

Mediation is part of a larger alternative dispute resolution (ADR)

movement that has swept American society during the past 30 years.

Linda Singer, one of the leading experts on the subject, observes that

a "quiet revolution is taking place in the methods Americans have

available to them for dealing with conflict" (Singer 1994). For

example, mediation and other ADR procedures are extensively used in

the following areas:

• Divorce and child custody cases.

• Commercial disputes.

• Labor-management conflicts.

• Neighborhood disputes.

• Victim-offender reconciliation programs.

• Multiparty environmental controversies.

• Conflict resolution in elementary and secondary schools.

• Rulemaking by Federal agencies.

• International diplomacy.

Mediation is also an integral part of important new developments in

the criminal justice system, including the restorative justice and

community justice movements. These movements introduce the

principle of shared responsibility into American criminal justice by

encouraging neighborhood residents and community organizations to

settle problems outside the formal legal system (Clear and Karp 1999;

Nicholl 2000a). These movements are also closely linked to the

philosophy, goals, and programs of community policing

(Nicholl 2000a).

The history of the ADR movement in the United States has some

important lessons for the development of citizen complaint mediation

programs. This chapter examines the ADR movement in American

society in general and in the criminal justice system in particular.

ADR Movement

The growth of ADR during the past 30 years can be accurately

characterized as a movement. ADR has been led by activists who are

deeply committed to its goals; it has been served by a number of

national professional associations; several professional ADR journals

have been published; ADR has been widely taught in law schools; a

76 Mediating Citizen Complaints Against Police Officers

significant amount of ADR research has been conducted; and, finally,

ADR has been applied to many aspects of American life.

In addition, ADR has received substantial support from federal and

state governments and private agencies. Federal law requires all federal

agencies to develop ADR programs and all federal district courts to

develop ADR procedures to reduce caseloads. Most states have also

enacted laws to promote ADR procedures. A recent mediation manual

listed dispute resolution offices in 21 states (Lovenheim 1996). At the

same time, Congress and many states have promoted mediation by

enacting statutes to guarantee confidentiality in mediation proceedings

(Brown 1991).

The legal profession has enthusiastically embraced ADR. The

American Bar Association (ABA) cosponsored the 1976 National

Conference on the Causes of Popular Dissatisfaction With the

Administration of Justice, which is widely credited with sparking the

ADR movement. Also in 1976, ABA created the Special Committee

on Resolution of Minor Disputes. Since then, ABA has passed a series

of resolutions supporting various applications of ADR. The ABA

Section on Dispute Resolution, established in 1993, currently

maintains an extensive range of activities (American Bar Association

1998). In addition, the Society of Professionals in Dispute Resolution,

organized in 1972, has more than 3,600 members and maintains 15

different sectors addressing areas such as commercial, court, family,

criminal justice, community, and other disputes.

Finally, about 95

percent of all law schools teach some form of ADR (Singer 1994).

In the context of this wide range of activity covering virtually every

aspect of American life, the relativ

e absence of citizen complaint

mediation programs is remarkable.

See the SPIDR Web site

(www.spidr.org).

Disputes in Everyday Life

Disputes arise all the time in day-to-day life: coworkers, business

partners, neighbors, family members, and others have disagreements

ranging from the important to the petty. People also have disputes

with federal, state, and local agencies or other organizations.

77 Mediation and the ADR Movement in America

Box 7–1

Responses to Disputes and Possible Outcomes

Response Possible Outcome

Ignore Problem festers/escalates

oid certain people/situations

Problem disappears

Settle informally Friend or colleague intervenes

Face-to-face resolution

Settle for

mally Formal complaint filed

Lawsuit filed

Use ADR procedure Mediation

Conciliation

Arbitration

eople respond to disputes in various ways. The most common

response is to ignore the problem. This response is called "lumping it"

elstiner 1974). In some cases, the matter goes away; in other cases, it

festers and grows worse. Another response is sitting down and

working out differences informally. A friend, colleague, or family

member may intervene to help resolve the problem. Such events

undoubtedly occur millions of times each year. These informal

resolutions are a form of mediation. They are so routine and familiar

to us that we do not think of them in those terms (Singer 1994;

Sander 1982).

Informal dispute resolution occurs regularly in policing in at least

three different ways. First, police officers routinely mediate disputes

between citizens. Such actions are a basic part of the "peace-keeping"

role of day-to-day policing (Goldstein 1977). Second, police resolve

disputes between themselves and citizens in the field; for example,

when a citizen grows angry with a police officer over something the

officer did, the officer may talk through the problem and eventually

calm the citizen. Third, police resolve disputes at the police station,

for example, when a citizen lodges a complaint against a police officer.

A police official, typically a desk sergeant, may talk to the complainant,

and no formal citizen complaint is filed. However, complaints

involving civil rights issues sometimes result in the desk sergeant's

refusal to accept a complaint or possibly even threatening the citizen

(Christopher Commission 1991; National Advisory Commission on

Civil Disorders 1968.).

78 Mediating Citizen Complaints Against Police Officers

Since the 1960s, however, Americans have become less likely to lump

it and instead pursue their problem or grievance. This has produced a

dramatic increase in litigation and the development of other formal

grievance mechanisms within organizations. For example, in the early

1960s, few police departments had a formal process for handling

citizen complaints. Today, virtually every agency has some unit or

person designated for this purpose, and most big-city police

departments are also subject to review by an external citizen oversight

agency (President's Commission on Law Enforcement and

Administration of Justice 1967b; Walker 2001).

The increasing tendency of people to act on their grievances is

reflected in long-term trends in the number of complaints filed

against New York City police officers. Complaints increased 10-fold

between the early 1960s and the early 1970s (Kahn 1974). No one

suggests that police performance deteriorated by a factor of 10 in that

decade. Rather, the increase in complaints was attributable to a change

in people's attitudes toward pursuing disputes and to improved

complaint procedures that facilitate the filing of complaints (see

Walker 2001).

Origins of the ADR Movement

Early Manifestations

The ADR movement can trace its origins to the 1937 National Labor

Relations Act (the Wagner Act), which guaranteed emplo

yees the right

to form unions and required employers to negotiate with them in

good faith. The resulting collective bargaining agreements inevitably

gave rise to numerous disagreements regarding their implementation.

Arbitration developed as a formal means of resolving such

disagreements outside the courts. "Meet and confer" provisions in

contracts also provided a structured process for effecting changes in

the workplace.

In 1947, Congress established the Federal Mediation and Conciliation

Service (FMCS) to provide mediation and conflict resolution services

on a regular and professional basis. FMCS currently maintains 78 field

offices and employs almost 200 mediators. The role of FMCS

expanded even further with the passage of the 1990 Dispute

Resolution Act, which authorizes FMCS to provide mediation and

dispute resolution services to all federal, state, and local government

agencies. By the 1950s, ADR was well established in one important

area of American life.

79 Mediation and the ADR Movement in America

In 1964, mediation received another significant boost from the Federal

Government with the passage of the Civil Rights Act, which created

the Community Relations Service (CRS) unit within the U.S.

Department of Justice (DOJ). As the civil rights movement escalated

and many local communities faced potentially serious conflict, CRS

was charged with providing mediation services to local communities.

The work of CRS related to police-community relations continues to

this day. In 1997, for example, CRS helped resolve more than 1,300

local community problems, many of them involving the police

(Community Relations Service 2000; 1997).

ADR as a Social Movement

The early programs devoted to labor management and police-

community relations were isolated efforts directed toward specific

problems. ADR truly emerged as a social movement with a broad

vision for change in the late 1960s and early 1970s, reflecting the

idealism and often conflicting values of that turbulent era. Several

different intellectual and political forces spurred the ADR movement.

Forces spurring the ADR movement. One of the major catalysts of

the ADR movement was discontent with the growing

bureaucratization and legal formality of American life. Many ADR

activists felt that public bureaucracies, including the courts and other

elements of the criminal justice system, were too impersonal, too

constrained by formal rules, too slow to resolve problems, and too

remote from the lives of real people. For all these reasons, ADR

activists argued that the legal system was not adequately serving the

needs of its clients or society as a whole. One of the most influential

early articles in the neighborhood justice movement, Richard Danzig's

1973 "Toward the Creation of a Complementary, Decentralized

System of Criminal Justice," paints a picture of the American criminal

justice system as an almost complete failure (Danzig 1973). As the title

of his article indicates, Danzig proposed decentralized and informal

arrangements to handle criminal justice-related problems.

A demand for social justice, particularly in terms of greater access to

the legal system for impoverished racial and ethnic minorities, also

provided impetus for the ADR movement. Proponents of this view

believed that formal legal procedures failed to serve the needs of the

poor and powerless, protecting the interests of only the powerful. A

lawsuit, for example, requires a lawyer. Wealthy individuals or

organizations are better able to hire a skilled, experienced lawyer and

pay for additional investigators or experts when necessary (Auerbach

1983). Social justice critics of the legal system assume that informal

and neighborhood-based dispute resolution procedures would be

more accessible to those without money or political power.

80 Mediating Citizen Complaints Against Police Officers

Another force underlying the ADR movement was a growing distaste

for the seeming increase in conflict and litigiousness in contemporary

American society. Under the "rights revolution" numerous day-to-day

controversies generated lawsuits that reached the Supreme Court and

resulted in new constitutional law. Newly self-identified groups such as

criminal suspects, prisoners, public school students, welfare clients,

tenants, patients, gays and lesbians, and others began to claim formal

legal rights and to pursue their rights in the courts. The Supreme

Court addressed issues such as religion in public schools and private

sexual behavior, including access to contraceptives and abortion

services. In addition, routine civil litigation, including primarily

commercial disputes, increased. One study in the mid-1970s estimated

that 10 million new civil cases were initiated each year; this

represented a litigation rate more than 10 times that of Scandinavian

countries (see McGillis 1982). Critics of the legal system warned of a

"litigation explosion" and lamented a "plague of lawyers." One book

characterized America as the “litigious society” (Lieberman 1981).

Meanwhile, the increasingly formal procedures of the American legal

system seemed to some observers to aggravate conflict rather than

resolve it. In this respect, the ADR movement drew upon a popular

distaste for lawyers, blaming them for promoting litigiousness and

conflict for reasons of professional self-interest. Concern about a rise

in social conflict eventually expressed itself as the communitarian

movement, which explored various ways to lessen conflict in

American society. ADR is one such method.

A desire to make the courts more efficient also propelled the ADR

movement. Advocates of this view believed that the court system was

seriously overloaded with cases, many of which involved relatively

minor disputes, and consequently could not handle the truly important

cases. This view was launched in 1976 by the National Conference of

the Causes of Popular Dissatisfaction With the Administration of

Justice and by a speech by then-Chief Justice of the U.S. Supreme

Court Warren Burger. This view differed greatly from other catalysts

of the ADR movement in its political outlook. Its proponents

accepted the basic elements of the American legal system and simply

wanted to make it work more efficiently and effectively (Auerbach

1983).

Perspectives on social reform. As should be evident, disparate

forces that had very different values and goals propelled the ADR

movement. These can be grouped into two broad perspectives:

transformative and efficiency. The transformative perspective is the

most ambitious and idealistic.

For a discussion of the transformative

perspective, see Bush and Folger (1994).

Its advocates seek to transform social

relations, if not society itself. Transformation includes the

empowerment of relatively powerless people, the revitalization of

neighborhoods and communities, and a reduction in conflict in

81 Mediation and the ADR Movement in America

American society at large. The efficiency perspective is primarily

concerned with the smooth functioning of established legal

institutions and seeks to make them more efficient by diverting some

cases or potential cases to other avenues. Whereas the efficiency

perspective places a high value on established legal institutions and

wants to make them work more effectively, the transformative

perspective is deeply alienated from those institutions.

Critics of the ADR movement. The assumptions and goals of the

ADR movement have been questioned by a number of scholars and

political commentators. Some legal scholars, for example, argue that

the legal system is not as overloaded as the efficiency perspective

suggests. The most serious critique has come from legal scholars and

civil libertarians who see litigation and conflict as a positive and

powerful instrument of social change, especially with respect to the

poor and the powerless. The success of the civil rights movement in

eliminating racial discrimination and advancing the interests of African

Americans is the touchstone for advocates of this point of view (Fiss

1984; Walker 1998b). These advocates believe that the American legal

system, for all its flaws, is one arena in which all people are indeed

equal. They worry that the informal procedures of ADR are more

likely to favor the powerful than the powerless. Some critics fear that

mediating citizen complaints against police will work to the advantage

of police and not complainants (see Chapter 4).

First programs of the ADR movement. The first major expression

of the ADR movement in the 1970s was the creation of

neighborhood justice centers, some of which were sponsored by DOJ.

By 1990, an estimated 250 to 440 centers were in operation across the

country.

Neighborhood justice centers handle a wide range of what

are generally termed "minor disputes": landlord-tenant problems, small

commercial claims, disputes between neighbors, employer-employee

grievances, and some minor criminal offenses (Tomasic and Feeley

1982).

Singer (1994) estimated 350

neighborhood justice centers in the United

States by 1990.

Other areas of American life also experienced a surge in ADR activity.

One major area involved di

vorce, child custody, and child support

mediation (Singer 1994). In addition, the number of cases involving

mediation and arbitration of employer-employee disputes, commercial

disputes, and multiparty disputes (e.g., environmental issues involving

land owners, environmentalists, developers, and various government

agencies) increased greatly. International disputes from trade

agreements to major political controversies also frequently involved

formal mediation procedures.

82 Mediating Citizen Complaints Against Police Officers

Concern about violence in elementary and secondary schools

stimulated efforts, including the introduction of mediation into

schools, to reduce the number of routine conflicts that lead to more

serious crime and violence (Kenney and Watson 1998). For example,

the National Association for Mediation in Education (NAME) was

established in 1984 to promote school-based conflict resolution

programs (Girard and Koch 1996). Today, one of the most widely

used approaches in schools is peer mediation, where students are

trained in mediation techniques so that they can resolve conflicts on

their own (Bodine and Crawford 1998).

Mediation in the Criminal Justice System

Many parts of the criminal justice system, including all three

traditional components of the system–police, courts, and corrections–

eventually adopted mediation as a conflict resolution method. As the

review that follows indicates, however, the application of mediation

has been inconsistent within the system.

Police Officers as Mediators

One of the earliest manifestations of mediation in the criminal justice

system was the mediation of domestic disputes by police officers. This

arose independently of the ADR movement in response to research in

the 1960s showing that police officers functioned as peace keepers,

not crime fighters. Recognizing that police officers frequently handle

domestic disputes and rarely make arrests in such incidents, Morton

Bard's Family Crisis Intervention (FCI) experiment sought to provide

officers with specific skills for handling domestic disputes without

making arrests (Bard 1970).

The FCI concept was extremely popular for a few years but

subsequently discredited by the emerging women's rights movement.

The women's movement identified domestic violence as a social

problem, saw police's failure to arrest as aggravating the problem, and

emphasized arrest of people guilty of spousal assault. The result was a

national movement toward mandatory arrest laws and policies and

skepticism toward police's mediation of domestic disturbances

(Sherman 1992).

The community policing movement in the 1980s renewed interest in

police officers as mediators. Mediation in policing typically takes on

two forms: the use of mediation skills by officers themselves to

handle specific problems and officer referral of cases to dispute

resolution centers. Mediation advocates assert that mediation is well

suited for policing, because officers routinely handle many types of

83 Mediation and the ADR Movement in America

disputes (Cooper 1999a; 1999b). Cooper points out that mediation by

police officers does not have to occur in a structured environment

such as an office and is therefore well suited to the nature of police

work: "Mediation can be conducted by uniformed patrol officers in a

multiplicity of venues, including on the street, in a bar, or on a

basketball court" (Cooper 1999b).

Cooper also argues that police mediation of citizen disputes does not

necessarily result in permanent solutions. Instead, it reflects what he

terms "conflict management mediation," which brings a conflict to a

manageable level. "All of the matters in controversy have not been

addressed or resolved, but enough has been addressed or resolved that

disputants have entered into an agreement of their own" (Cooper

1999b). In effect, this approach represents the traditional peace-

keeping role of the police.

In addition to training police officers to mediate disputes themselves,

interest has recurred in equipping officers to refer citizens to dispute

resolution centers (Volpe 1989). For example, officers in Hillsboro,

Oregon, receive 32 hours of mediation training. In contrast, the

Pittsburgh Police Bureau teaches all officers how to refer cases to the

Pittsburgh Mediation Center; some officers are trained in mediation

and instruct all officers how to refer cases to the Pittsburgh Mediation

Center. There are more than 350 dispute resolution centers across the

country, many of which have created wallet-sized cards that police

officers can give to citizens involved in conflict situations (Volpe and

Christian 1989). The major limitation of police referring citizens to

mediation centers is that they have no legal authority to compel them

to do so.

Some experts also believe that mediation can be used by supervisors

inside the police organization to handle internal conflict as well. "Two

police officers who cannot get along may benefit more from

mediation than from a transfer, disciplinary measures or a ‘let’s try to

get along’ lecture" (Volpe and Christian 1989). In fact, the San Diego

Police Department mediation program described in Chapter 6

developed to some degree out of the department's success in

mediating employee disputes.

Mediation and Community Policing

As described in Chapter 2, the idea of police officers functioning as

mediators is consistent with the values and goals of community

policing. A primary goal of community policing is to build

relationships and partnerships with community groups to facilitate

development of healthy communities.

84 Mediating Citizen Complaints Against Police Officers

One aspect of these partnerships is the capacity for neighborhood

problem solving (Nicholl 2000a). A 1995 Police Executive Research

Forum (PERF) report describes a number of innovative programs

that use mediation as a part of problem solving. The problems

addressed include neighborhood gangs, domestic violence, and

internal police department personnel problems (Glensor and Stern

1995). Cooper, for example, suggests that police can give citizens a

sense of empowerment through mediation by helping them engage in

the resolution of their own conflicts. "Officers appear less as outsiders

and more as community members; police ownership of community

problems increase" (Cooper 1999b).

Equally important, use of mediation skills by the police may help

reduce conflict and the number of confrontations between police and

citizens. This, in turn, improves police-community relations and helps

develop positive police-community partnerships (Volpe 1989; Cooper

1999b).

Prison Grievance Mechanisms

In the early 1970s, the criminal justice system adopted mediation to

address prison inmates' grievances, primarily in response to the rise of

the prisoners' rights movement and a dramatic increase in litigation by

prisoners (Call 1995; Hepburn and Laue 1980). Before the prisoners'

rights movement, American prisons had few if any procedures for

handling inmate grievances. The prevailing law considered prisoners

wards of the State who had no legal rights; therefore, no need existed

for formal procedures to hear their grievances. The rising tide of

inmate petitions in the Federal courts signaled the need for alternative,

nonjudicial administrative remedies for inmate grievances (Ducker

1983; Silberman 1988). Many experts subscribing to the efficiency

perspective pointed out that the courts could not efficiently and

effectively address all of the prison-related disputes presented to them

(Kovach 1997).

Within a few years, a variety of mechanisms for resolving inmate

grievances had developed. A 1974 survey identified four mechanisms:

(1) legal service programs that make legal aid and public defenders

available, (2) ombudsmen who investigate and respond to complaints

about the corrections department or prisons, (3) formal internal

procedures for handling grievances, and (4) inmate councils designed

to represent prisoners (McArthur 1974).

Some of the new mechanisms involved the mediation of inmate

grievances. Mediation advocates argued that this type of ADR was

particularly well suited for prisons. It had the capacity to address

interpersonal conflicts among prisoners and respond to inmate

85 Mediation and the ADR Movement in America

complaints against the institution (Reynolds and Tonry 1981).

Silberman (1988) further suggested that mediation might help resolve

disputes between staff and inmates, which could reduce the level of

violence in a correctional institution.

Victim-Offender Mediation

The most extensive use of mediation in the criminal justice system

today is in the area of victim-offender mediation (VOM). The first

VOM programs began in the late 1970s, with the participation of a

limited number of victims. Currently, thousands of crime victims are

involved in approximately 100 victim-offender mediation programs in

the United States. In addition, many VOM programs exist in Europe

and Canada (Umbreit and Greenwood 2000b).

The core element of VOM is a face-to-face meeting between victims

and their offenders. This provides victims with the opportunity to

express their feelings and explain the impact the crime has had on

them. It also creates a structured process for offenders to account for

their actions to the victims in a way that traditional court proceedings

do not allow. Offenders have the opportunity to take responsibility for

their actions and to "become more aware of the effect of their crime

on the victim (and community), to use this knowledge to take stock of

the future, and to apologize or to offer repair to the harm or both"

(Nicholl 2000a). Finally, VOM allows the two sides to negotiate an

acceptable resolution for the harm done (Nicholl 2000a; Umbreit and

Greenwood 2000b). The main goal of VOM is not to punish the

offender but to repair the harm that has been done and to restore a

relationship between the victim and the offender.

Mediation is not regarded as appropriate for all offenders. In fact,

VOM has been largely confined to relatively minor offenses, with a

special emphasis on juvenile offenders. Umbreit and his colleagues

found that the most common types of offenses referred for mediation

were vandalism, minor assaults, and theft and burglary. In addition,

other property-related offenses and a few severely violent offenses

were also mediated in some of the programs. However, some

programs do mediate more serious violence-related cases such as

assault with a deadly weapon, negligent homicide, domestic violence,

sexual assault, murder, and attempted murder (Umbreit and

Greenwood 2000b).

VOM may produce a wide range of outcomes. In general, the

mediation process first addresses emotional and informational issues,

which include the goal of having the victim express his or her feelings

and having the offender respond. Some outcomes involve agreements

about restitution in the form of money or services. Regardless of the

86 Mediating Citizen Complaints Against Police Officers

type of outcome, VOM is intended to "humanize the criminal justice

process" for both victims and offenders. Ideally, a general

consequence of this process is to legitimize the criminal justice system

as a whole (Cooke 1981).

Evaluations have found that VOM programs are generally effective. In

his study of mediation programs in four Canadian provinces, for

example, Umbreit (1996) found that more than 90 percent of the

cases referred to mediation successfully negotiated agreements

acceptable to both parties. Moreover, 89 percent of the victims and 91

percent of the offenders reported satisfaction with the outcome of

the mediation session. The findings of the study also indicate that

most of the criminal justice officials supported mediation for specific

criminal offenses and reported satisfaction with the local mediation

services.

Community Courts

ADR procedures have been applied to the courts component of the

criminal justice system. One such application is the community

prosecution program in Portland, Oregon. In its basic approach, this

program is closely related to the concepts of community policing and

problem-oriented policing. The focus of official action shifts from

major crimes to relatively small neighborhood-level disorder problems,

with attention to underlying problems (e.g., prostitution, public

drunkenness, rowdiness) rather than individual offenders. The

Multnomah County (Portland) District Attorney (DA) created a

Neighborhood DA, who functions as "facilitator, legal counselor,

negotiator, problem solver, and community advocate." Instead of

prosecuting individual cases, much of this person's activities involved

mediating between conflicting parties and/or negotiating solutions

(Boland 1998).

Restorative Justice and Community Justice

Restorative justice and community justice are names applied to a range

of programs that embrace many of the activities of community justice

centers and VOM. They are based on the premise that victims,

offenders, and community members all need to be involved in

resolving conflict. The approach is to engage in problem solving or

reconciliation through a dialog that brings together the offender and

the victim–individual(s) or the community–to negotiate a healing or

"restorative" solution (Nicholl 2000a; Galaway and Hudson 1996;

Karp 1998).

87 Mediation and the ADR Movement in America

Galaway and Hudson assert that three elements are essential to the

definition and practice of restorative justice: (1) crime is viewed

primarily in terms of harm to individual victims, communities, and the

offenders themselves and only secondarily as an offense against the

State; (2) the aim of the criminal justice process should be to create

peace in communities by reconciling the parties and repairing the

injuries caused by the dispute; and (3) the criminal justice process

should facilitate active participation by victims, offenders, and their

communities to find solutions to the conflict.

Galaway and Hudson (1996) also argue that mediation is an integral

part of achieving restorative justice. Mediation provides: an

opportunity for participation in the justice process, a process for

victims to receive answers to questions directed toward their

offenders, the possibility of restoring the emotional and material

losses to victims, the possibility of reducing victims fears, and giving

everyone involved a sense of having been treated with respect.

Effectiveness of Mediation and Other ADR Procedures

The literature on mediation and other ADR procedures indicates

mixed results with regard to effectiveness. The ADR movement has

achieved some of its original goals but has fallen far short of

achieving many of the more ambitious and idealistic goals associated

with the transformative perspective. These findings have important

implications for citizen complaint mediation programs.

For a comprehensive review, see

Carnevale and Pruitt (1992).

Findings

The most positive findings related to mediation and other ADR

procedures relate to the more limited goal of providing a more

satisfactory experience for participants. Generally, participants in ADR

procedures are satisfied with the process and are more satisfied than

comparable subjects who have their disputes or cases settled through

traditional formal legal proceedings. Mediation also produces relatively

high levels of compliance with the terms of agreements. That is,

individuals whose small claims court cases or child support payment

disputes are mediated are more likely to comply fully with the terms of

the settlement than individuals whose cases are settled through formal

proceedings.

Mediation and other ADR procedures have been much less successful

in achieving the broader and more ambitious social goals associated

with the transformative perspective. Evaluations of neighborhood

justice centers, for example, show that relatively few cases are

generated as "walk-ins." That is, justice centers have not fulfilled the

88 Mediating Citizen Complaints Against Police Officers

promise of being able to help settle ongoing neighborhood disputes

that are not destined for some more formal legal proceeding. Most

cases tend to be referred from formal dispute proceedings, mediation

being an alternative means of settlement. In sum, little evidence exists

to support the idealistic hope that neighborhood justice centers will

significantly improve the quality of life in communities by providing a

forum in which to resolve low-level disputes. No evidence shows that

neighborhood justice centers have empowered communities in the

sense of building new capacities for self-regulation and self-

governance. Traditional legal institutions, notably the police and the

courts, continue to play as strong a role in regulating conflict as they

have in the past.

For a discussion of the San Francisco

Community Boards experience, see Merry

and Milner (1993).

In addition, one review of the literature concluded that mediation is

generally more effective when conflict is moderate rather than intense,

when the parties are highly motivated to reach settlement, when the

issues do not involve general principles, and when the parties are

relatively equal in power" (Carnevale and Pruitt 1992). Similarly,

Merry's (1992) comparative research on mediation in small-scale and

primarily Third World societies raises serious questions about whether

informal dispute resolution procedures used in those societies are

applicable to modern societies such as the United States. First,

mediators typically are respected, influential members of the

community who can exercise considerable influence and subtle

coercive power. Mediation tends to work because disputes arise in the

context of close residential and kinship ties that require people to deal

with each other in the future and that make shame and loss of good

will powerful instruments of social control. Consequently, in small-

scale societies, "mediation depends on a community fabric that links

disputants in enduring relationships" (Merry 1982).

At the same time, little evidence shows that mediation has achieved its

efficiency-perspective goals; mediation has not significantly reduced

court caseloads by diverting them from conventional litigation.

89 Mediation and the ADR Movement in America

Implications for Mediating Citizen Complaints

The findings regarding the effectiveness of mediation and other ADR

procedures ha

ve considerable implications for mediating citizen

complaints. On one hand, people who experience mediation are

generally very satisfied with the process and comply with final

agreements. Mediation is also faster and less expensive than litigation

or other more formal procedures, suggesting that mediating citizen

complaints has the potential for providing greater satisfaction to

participants than conventional complaint review procedures and for

being more efficient and cost-effective. On the other hand, people

should be extremely cautious about expecting mediation to transform

the larger context of relationships between police and citizens. The

most ambitious hopes of neighborhood justice centers, for example,

have not been realized. Moreover, many citizen complaints involve

intense feelings about police misconduct, issues of general principles

such as the attitude of police toward minorities, and a power

imbalance between police officers and citizens.

91 Conclusion

Conclusion

Mediation is a promising alternative to the handling of citizen

complaints against police officers. As Chapter 2 explains, mediation

offers many potential advantages to the police, to complainants, the

police-community relations, to police accountability, and to community

policing.

Mediation represents a very different approach to the handling of

citizen complaints than traditional complaint review mechanisms,

emphasizing communication and understanding rather than fact-

finding and adjudication (Chapter 6).

Mediation is far more complex than most people realize, however.

This report has found that few mediation programs exist in the

United States and most of those programs actually mediate very few

cases each year (Chapter 4).

Mediating citizen complaints involves a number of complex issues

related to what kinds of cases should be considered for mediation, the

mediation of cases involving racial, or ethnic, or gender issues, and the

formal procedures of the mediation process (Chapter 3).

Careful planning is necessary for the development of a successful

mediation program. The planning process developed by the San Diego

Police Department serves as a model for communities thinking about

developing a mediation program (Chapter 5).

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FOR MORE INFORMATION:

U.S. Department of Justice

Office of Community Oriented Policing Services

1100 Vermont Avenue, NW

Washington, D.C. 20530

To obtain details on the COPS Office program, call the

U.S. Department of Justice Response Center at 1.800.421.6770

Visit the COPS internet web site by the address listed below.

e04021486 Created Date: August 2, 2002