In institutions where individuals are serving long sentences, mediation should be introduced 6-12 months before the release date. This provides sufficient time for screening of the outside individual, managing all of the logistics with the institution, and still accounting for time which may be taken off the sentence, shifting release dates and possible transfers to other facilities towards the end of the sentence. In facilities where individuals are serving shorter sentences, mediation should be introduced as soon as possible. CMM has had success in facilities where individuals are serving for only 6 weeks, but this requires an introduction to mediation in the first week and a commitment from the institution for a quick turnaround on all screening requests. As a result of this short turnaround, most of these cases only have one session pre-release instead of the ideal three sessions. However, these sessions are valuable and there is definite benefit to offering the services to individuals who are serving even shorter sentences.
Ideally, the community mediation center case manager should have access directly to all individuals who meet the criteria as eligible for the re-entry mediation services. Generally, it is best that these individuals learn about mediation from the mediation center case manager. This requires that the institution mediation liaison identify all incarcerated individuals with release dates that meet the criteria and bring them together for an orientation meeting with the re-entry case manager. In some institutions, eligible individuals can sign up to attend the orientation. While this can work in institutions where mediation has been offered for a while and has a positive reputation among the incarcerated individuals, it often does not work when a program is getting started, because it is hard for individuals to fully understand the program from a flyer. In other institutions, this orientation occurs during another meeting. For example, in a pre-release facility where individuals serve the remaining 12 months of their sentence, their entrance orientation will occur when they have 12 months remaining. It may be possible to include the introduction to mediation as part of the entrance orientation. Some institutions have an exit orientation 30-60 days pre-release. This is generally not a good time to introduce mediation, as there is usually not enough time to set up mediation sessions in the time remaining.
When establishing the structure for introducing re-entry mediation to a group of incarcerated individuals, it’s important to consider that some individuals may be hesitant to express a need for help in front of others. Therefore, whatever system is established, it should allow for individuals to request the service without necessarily having to do so in a public way. Another challenge to introducing re-entry mediation to incarcerated individuals is that there are so many different ways for re-entry mediation to be used that an individual may not always connect a summary of the program with how it could be helpful in their situation. As a result, the preferable model provides an opportunity to speak one on one in private with each individual in the group. Sometimes these one on one meetings can occur with one mediation case manager while a mediation program trainer leads a conflict management training session for the group of incarcerated individuals. In one institution in Maryland, the mediation case manager briefly introduces the idea of re-entry mediation to the group of incarcerated individuals during their orientation to the pre-release center. Then as the rest of the orientation continues, this case manager speaks to each participant.
In these one on one meetings, the case manager begins by asking the participant to speak in general about their plans as they prepare for release and who on the outside will be important to them during the period of release and transition into the community. The mediation case manager listens and reflects back to the incarcerated individual, using the inclusive mediation strategy of strategic listening. This involves focusing the reflections on feelings, values, and topics for resolution. The case manager also asks open-ended questions. The reflections coupled with open-ended questions helps the incarcerated individual become more clear about their goals and needs as they prepare for release. The case manager is then able to describe what the mediation process could look like for their particular situation, if they choose to use it. This more detailed explanation, connected with the individual’s situation is often more successful in resulting in a request for mediation, than is a generic explanation to an entire group. Once an individual has determined that mediation is appropriate for them, the mediation case manager completes an intake form, screens for fear of retaliation, and completes all of the pre-services forms necessary for the research and evaluation.
The mediation ethic of self-determination requires that an incarcerated individual select the person with whom they wish to mediate and that this not be restricted to blood relatives or any specific category (other than prohibiting mediation when there is a stay-away order or with someone on the victim notification list). It is important to note that the criminal justice literature highlighting the need for pro-social relationships, maintains these findings are for any pro-social relationship, not just for family members. Furthermore, sometimes it may be best for an incarcerated individual not to reconnect with immediate family members (due to abusive situations), but they may need to reconnect with another person who has been important and helpful in their life. In Maryland, most participants do select family members; however, there have also been very successful mediations with others who are not blood relatives.
Screening procedures have been put in place to make sure that everyone can speak for themselves without fear of retaliation (a necessary component for every mediation) and to ensure that victims are not re-victimized. The first stage of this process occurs during the intake with the inmate. A useful question to scan for fear of retaliation is “Is there anything you can’t talk about in mediation? If yes, why?” If the person does not think they can bring up an important issue because of some kind of retaliation, then mediation may not be appropriate for the situation. This is different from someone simply not wanting to talk about something (i.e. “I don’t want to talk about the affair because it’s none of her business.” Or “I don’t want to talk about failing out of school because it bums me out.”). Someone may choose not to talk about something, but if the reason they can’t talk about it is because of some kind of retaliation, then mediation may not be appropriate.
The next phase of the screening procedure is designed to ensure that victims are not re-victimized. The mediation case manager provides the institution mediation liaison with the name and address of the person on the outside with whom the incarcerated individual wishes to mediate. The intuition mediation liaison checks to see if this person has a stay-away order against the incarcerated individual or if this person is on the victim notification list. Signing up to be on the victim notification list or getting a protective order is a signal of fear of the incarcerated individual. So if the outside person falls in either category, they will not be contacted, as this may be traumatic in and of itself. If the outside individual is on one of these lists, the incarcerated individual is told simply that the outside person could not be contacted. They are not told about the victim notification list or the stay away order. If the outside person is not on the victim-notification list and does not have a stay-away order, then the mediation case manager can contact them and invite them to mediation.
The mediation case manager sends a letter to the outside participant, inviting them to participate in the pre-release mediation. The mediation case manager then follows up with a telephone call. All principles of good mediation intake process are important here. Some especially important principles are to ensure confidentiality by not disclosing to the outside participant what the inside participant wants to talk about. In fact, it is best to give a brief overview of re-entry mediation, inform the outside participant that the inside participant wishes to mediate, and ask them to speak about the relationship. As they describe the relationship and their feelings about it, the case manager uses strategic listening to reflect back feelings, values, and topics, as well as open-ended questions. The case manager can then highlight how these feelings, values, and topics can be discussed in the mediation. This is important for the outside participant to understand that the mediation is non-judgmental and neutral, and that it is not an advocacy process for the incarcerated individual or the outside participant. Often, because the request was made by the incarcerated individual, the outside participant may believe that the mediation case manager is an advocate for the incarcerated individual and calling to encourage them to comply with a request the incarcerated individual has made. When the outside participant recognizes that they will have sufficient opportunity to express themselves in the mediation and that the mediators will be opening up dialogue for everyone, they are more likely to want to participate. Listening to them during the intake call is the best way to model that this is what will occur in the mediation.
Conversations with the outside participants include a range from gratitude to hostility. Often the relationships have been strained and the outside participant may want nothing to do with the incarcerated individual. Other times, they feel relieved at the idea of having a chance to have a conversation pre-release to address issues. The mediation case manager plays the same role of listening, reflecting, asking questions, and explaining the process in any of these scenarios. Often, someone who begins the conversation with hostility opens up once they experience feeling heard and not feeling judged. They may even decide they want to use mediation because of the positive experience on the call.
The pre-release mediation logistics developed in Maryland represent a balance honoring facility security and honoring the privacy necessary for the mediation to address deep and complex issues. Outside participants are screened in advance by the institution, generally in the same way that they screen visitors coming into the institution. Mediators are screened at a higher level and are required to complete a volunteer orientation process. The mediation case managers speak to the outside participants by phone in advance and conduct a “Citizen Participant” orientation with them. This involves reviewing the DPSCS rules and regulations. The outside participant is informed that when they arrive at the facility, they will be asked to sign the form indicating that they will comply with the rules and regulations.
Once at the facility, the outside participants and the mediators go through the entrance process, including the metal detectors, wand, pat-down, and whatever else the facility may require. The mediators are generally allowed to bring in forms, note-pads, chart paper, markers, and tissues, and these items are cleared in advance and indicated on the memo.
The room in which the mediation occurs is private and no one on the outside can hear the conversation that occurs in the mediation. This privacy is crucial to ensure that participants feel comfortable discussing a range of issues that often make them feel vulnerable. These in-depth conversations are often critical to mediation process, as they allow for new connections to be made between participants and they allow for underlying issues to be identified. There is generally a window which allows the corrections staff to see in as often as they wish. Mediators generally ask outside participants to sit on the opposite side of the table from the incarcerated individual. This further minimizes the possibility of any items being passed.
Mediations should not occur with glass between participants, by phone, or by videoconference. Mediation through any of these mediums will be compromised for several reasons. First, these systems may not be confidential as a third party could listen in to a call or videoconference. Even if a third party is not listening, the mediation participants may not be able to trust that a third party is not listening and therefore, may not be willing to open up and be as vulnerable as necessary for mediation to be successful. Second, in rebuilding the trust and relationship, the concept of body language and human energy that is only possible to read when people are in the same room, is crucial. Mediators also take cues from body language and need to be able to see everyone together. Finally, these mediums would generally require that the mediator be in one space with the outside participants and the incarcerated individual be in the other space alone. This compromises the mediators’ neutrality and the participants’ equal access to the mediation process. Even though it may take time to work out a plan that allows for all participants to be in the same private room, it is worthwhile process. These other options strip away too many of the ethical standards which are crucial to mediation’s potential.
In Maryland, re-entry mediation was tested and developed in programs where the Inclusive Mediation Model is used. Inclusive Mediation is defined as follows:
The goal of inclusive mediation is to support the participants in having difficult conversations and to guide a problem solving process to develop solutions that meet everyone’s needs, with all content decisions made by the participants. In the Inclusive Framework, co-mediation is almost always used. Inclusive mediators do not set ground rules. Mediators focus on strategically listening for values, feelings, and topics and reflect these back to the participants using language that captures the intensity the participants expressed. Mediators check to make sure that the participants feel the reflection is accurate. The mediators attempt to understand each participant, thus making it more possible for them to understand each other. Mediators follow a defined process that includes time for participants to talk about whatever they chose, build clarity as to what is important, identify topics participants want to resolve, identify the goals each participant has for each topic, brainstorm options, consider each of the generated options in terms of which would meet all participants’ goals, and determine areas of agreement, if any.
Inclusive mediators rarely use caucuses. They might do so in situations where mediators need to check if mediation is a good fit for the conflict. If agreement is reached, it can be written by the mediator based on the direction of the participants, and it is reviewed and confirmed by all participants in the mediation. In inclusive mediation, the mediators guide the process and the participants are in charge of whether agreement or any other outcome is reached.
While most centers offering re-entry mediation in Maryland use the Inclusive Model, re-entry mediation has also been successfully established in programs where the Transformative Mediation Model is used.
Because there are a range of mediation model used across the country and there is no consensus on the definitions used to describe even the different models of mediation[i], in this section we discuss the two key components needed in the mediation model in order for the mediation to be appropriate for re-entry purposes. The process used for re-entry mediation should have the ability to provide a non-judgmental space for participants to discuss the history of the relationship, their personal struggles and changes during the incarceration, and their current hopes and fears. The mediator should be skilled at listening deeply and reflecting what they hear. In the Inclusive Mediation model, strategic listening is used for this deep listening and reflection. However, a mediator should not be analyzing or providing their observations about the conversation. Mediators will also use open-ended questions judiciously to deepen the conversation. The dialogue that occurs out of this non-judgmental listening allows participants to begin healing difficult relationships. Often, participants still see each other as the other was at the beginning of the incarceration. These conversations give participants a chance to understand where the other’s heart and head are at the present moment. Participants may also become clearer about what is important to them as they attempt to express it to the other participant. In addition, as understanding is built, the mediator assists participants to become clearer about what topics they need resolution to in order to prepare for the transition into the community.
A second important component to the re-entry mediation process is a chance to explore a range of options to the issues at hand, and to collaborate to develop solutions to the open issues. In this Inclusive Mediation model, this is done through a formal brainstorming process. The process focuses on one topic at a time and begins by clarifying the goals the participants have in the resolution. Then the mediators facilitate a formal brainstorming process that encourages participants to think of all of the options. Often people preparing for release are keenly aware of the limited options and limited resources at their disposal. The brainstorming process which encourages considering all possibilities (even the ones that seem unattainable or undesirable) allows for a thorough assessment of options. This often leads to participants tapping into their indigenous community resources that they may not have previously considered. Experiencing this kind of brainstorming also has a long term effect on how participants handle future conflicts. The follow up surveys conducted 3-6 months after release finds that 80% of respondents agree that “when a conflict arises, they try to think things through before responding.”. Leading this brainstorming process takes significant skills and patience on the part of the mediator.
This mediation approach is very different from settlement oriented mediation models which are prevalent. In a settlement oriented mediation, mediators consider the participant’s “positions” and work with them to develop a compromise on those positions. In re-entry mediation, there are a complex set of issues and the participants need space to have a difficult conversation about their relationship without pressure to compromise on anything. Sometimes mediators used to running a settlement oriented process struggle to shift to the re-entry mediation context. Additional training may be necessary to support the shift.
Another important clarification is that this model of re-entry mediation is different from a victim-offender mediation model. Victim-offender mediation or victim-offender dialogues are a valuable component of a justice system, but distinct from the process offered in re-entry mediation. Re-entry mediation is a neutral process, meaning the process itself is not based on a sense that one person caused harm to another. During the process, either the incarcerated individual or the outside participant or both often express remorse at harm they have cause themselves or others as well as expressing their experiences of being victims. This conversation is supported through the deep dialogue possible during the re-entry mediation, but the discussion of experience and/or causing harm is not inherently part of the process. It would only become part of the conversation if the participants initiate that dialogue.
A concern that is sometimes raised by leadership in correctional facilities considering establishing a re-entry mediation program is that the incarcerated individual and the outside participant might use the process simply to get “an extra visit”. The concern is that this is somehow a misuse of the process. It is, of course, not possible to know the complex motivation behind why anyone chooses to try mediation. However, our experience in Maryland has been that this should not be a cause for concern. Mediators are trained to take any conversation people are having to a deeper level. Therefore, even when the mediation conversation starts with what might seem like pleasantries or “catching up”, it generally leads to a more in-depth conversation about the relationships and the connections between the incarcerated individual and their community. Participants have sometimes expressed surprise and appreciation for the depth and intensity of the conversation. As such, CMM recommends that facilities and mediation programs not spend energy worrying about whether participants are trying to get an “extra visit”. This energy is much better spent on training mediators to be effective listeners and facilitators of intense dialogue. With skilled mediators, almost any of these conversations will be fruitful in preparing incarcerated individuals for release.
In Maryland, community mediation center mediators reflect the diversity of the communities they serve in terms of race, age, gender, education, economic background, and sexual orientation. Mediations are conducted by two mediators. The co-mediation allows for training new mediators, on-going feedback and quality assurance, an opportunity to reflect the diversity of the participants, and a chance to model collaboration. Because mediators come from all walks of life, some of the mediators have served time in prison themselves. In fact, the centers often recruit volunteer mediators from among those who have served time to ensure this level of diversity as well. Depending on the time they have served, how long it has been, and the crime for which they served, not all mediators with criminal records are able to get clearance to mediate inside the facility. However, many can and this is an important part of ensuring mediators represent the diversity of the community. (It is worth noting that a mediator who has served time would not inform participants of their history, because this would violate the neutral role of the mediator.) Even if a mediator with a record cannot serve inside the facility, they can serve as a mediator outside and this is also an important way to ensure mediators serving the broader community represent everyone in the community. Because of the importance of diversity among mediators, centers may choose to invite participants to consider becoming volunteer mediators after they complete the re-entry mediation process. Recruiting from among mediation participants is a good way to ensure the community is integrated into the program and the program is integrated into the community.
As is the case in all community mediation services, quality assurance is crucial to re-entry mediation. Mediators are intervening in people’s lives at a vulnerable and challenging time, so it is imperative that the mediators are highly skilled and committed to ongoing quality assurance. The fact that the mediators are volunteers does not change requirements. There are many examples of volunteer tasks that require high skill levels, such as volunteer fire fighters who intervene when lives are at risk. These individuals are still required to meet high standards, participate in on-going training, and maintain these standards over time.
Mediator training begins with the 50 hour basic mediation training and apprenticeship. This is generally conducted with the first 45 hours of classroom training, observation of 2 mediations, co-mediation of 2 cases, and then the final five hours of classroom training. Once this standard training is complete, mediators are required to mediate at least 5 general mediation cases in their program. These may be family, neighborhood, school, or inter-personal cases. At this point, if the volunteer’s supervisor believes they have mastered the basic skills, they become eligible for the advanced Re-entry Mediation Training. After this training is complete, the newly trained mediator will co-mediate with someone more experienced in re-entry mediation for their first few cases. Even after the mediator has completed their training and initial set of cases, all cases are co-mediated and mediators give and receive feedback about their performance for at least 30 minutes after every case. Mediators also comply with the general regulations of continuing education and evaluation that the center has for all mediators. All centers also have a policy about removing mediators from the roster if, after conversations and additional training opportunities, they are not able to meet the centers quality expectations.
In addition to the community mediation center’s requirements for mediators, the correction facility in which the volunteer will mediate may have additional volunteer requirements. This often involves completion of an application, some level of screening, and a volunteer orientation.
As with any social service, working in partnership with other organizations and agencies is important. Referrals can be made between agencies offering other services that can be helpful for individuals preparing for release and their families. A re-entry mediation program should have guidelines about how referrals are made to ensure that the making of referrals do not hinder mediation’s ability to create deep conversation and allow participants to tap into their indigenous community resources.
In general, it is best for referrals to be made before mediation, between mediation sessions, or after mediation is completed and to be made by the mediation case managers rather than the mediators. The mediators should be able to focus their full attention on helping the participants have their difficult conversation and creating understanding among the participants. If they are distracted by what referrals to make, they may not be fully listening to what a participant is expressing. Furthermore, the referrals can come across as a judgment about what the mediator thinks the participants need. This shifts the process away from an open space for a full and unjudged dialogue.
Another point in the mediation process where the mediator may be tempted to make referrals (or where participants may ask for referrals) is during the brainstorming process. Here it is important to hold off until brainstorming is complete. If participants ask for referrals, the task of getting the referrals can be listed as a brainstorm option. If referrals are given early in this process, participants tend to consider the referrals the “answer to their problem”. This may keep them from considering all of the options, including creative ones and options that tap into the indigenous resources of their family and friends. It may turn out that the referral source cannot meet their needs (there are many more returning from prison than there are program slots to assist them) or that a different solution is more appropriate for the individual in the mediation. In some cases, participants complete the brainstorming of all possibilities and decide to gather more info between sessions before selecting options. During this time, they may be able to follow up on referrals and return to the next mediation session with information about the referrals as well as all the other possibilities they had come up with. There are some excellent programs that serve people returning from prison and centers can work in partnership with them, but it should be done in a way that allows mediation to harness all of its potential as well.
The best practice for post-release services is that within 2 weeks of release, the mediation case manager makes contact with the recently released individual and the outside participant to offer mediation on the outside. This can be done whether participants completed the entire mediation process and reached an agreement inside the prison or whether they only started the process inside and now have an opportunity to complete it on the outside. If participants started on the inside, they have a chance to complete the process on the outside. If they reached an agreement on the inside, they now have a chance to touch base to review how things are going on the outside, address any new issues that have come up and adjust the agreement as necessary. Often things are different than expected post-release and the mediation gives participants a chance to take stock and make necessary adjustments. The mediation process on the outside is run in the same manner as the process on the inside.
In order to reach participants post-release, mediation case managers need to have access to information about actual release dates as well as contact information. This sometimes requires working in collaboration with the Department of Parole and Probation. A center should get permission from participants to do this when they are beginning the mediation process. A simple consent form during intake generally provides this permission.
The prisoner re-entry mediation program requires a close collaboration between the community mediation center and the Department of Public Safety. Gathering a list of eligible incarcerated individuals, reviewing the potential outside individuals for stay away orders, conducting a background check on the outside individuals, and establishing the memo for clearance for mediators and outside participants to enter the institution requires that the community mediation center share names and identifying information (social security numbers, soundex numbers, etc.) with the institution mediation liaison. Depending on the post-release arrangement, the mediation case manager may contact the Department of Parole and Probation to locate the recently released individual and offer post-release mediation services.
Within this communication, it is important to honor the confidentiality of all of the mediation communication. Sometimes during the establishment of a partnership between a center and a corrections facility, the facility requests that certain information be shared, such as how the incarcerated individual carried themselves, the general topics areas they wish to discuss, or the written agreement which comes out of the mediation. Sometimes, the request is made by corrections staff with the goal of helping the incarcerated individual, either by providing additional resources or by supporting them to follow through on the agreement. While the incarcerated or recently released individual can choose to share the agreement with their parole agent or information about what they talked about with their social worker, the mediation program should not provide this information to anyone. This confidentiality should always be honored because it is a fundamental mediation ethic and allows for participants to open up and share in a way that re-establishes trust between them while also getting at underlying issues. In addition to this ethical requirement, if a mediation participant knows that what they discuss or what they agree to will be shared with someone who has power over their life (parole and probation, corrections case managers), they may be more likely to steer the conversation or produce an outcome they think will make them look good in that person’s eyes. This may keep them from being completely authentic and addressing all of the issues that really need to be addressed. Because the mediators don’t hold any power over them, there is less of a need to impress them and therefore they are able to create a space where honest and difficult dialogue can occur.
The exceptions to confidentiality are credible threats of future harm. If an incarcerated individual or an outside participant discloses an intention to conduct bodily harm to themselves or others, then the mediation program should disclose this information to the appropriate authority.
[i] Charkoudian, L., de Ritis, C., Buck, R., and Wilson, C. “Mediation by Any Other Name Would Smell as Sweet—or Would It? The Struggle to Define Mediation and Its Various Approaches.” Conflict Resolution Quarterly, 2009, 26 (3), 293-316.