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Of empowering storytelling, restorative justice and listening

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The cashier who recently sold me a lemonade at a carryout restaurant told me simply to return the cup to the cashier for a free refill. I returned around thirty minutes later requesting a refill to the now-different cashier. She went off into a mantra that the only cup given to me was a water cup, and thus was ineligible for a free refill. I uttered barely two words to start saying that the first cashier had said the opposite, and the replacement cashier interrupted with the same mantra. Just as I decided that paying the price of another lemonade or leaving seemed to make more sense than continuing this non-conversation further, the first cashier appeared from stage left and told the replacement cashier that I was entitled to a free refill, which I then received.

With the first cashier, I felt in harmony, and like she had listening and can-do qualities that I value in my own staff. With the replacement cashier, I tried feeling compassion and empathy for her —- including that she may not have felt particularly valued at her job if she were receiving low pay and being treated like a cog in the large corporate wheel — but then started asking myself how I would react if one of my own staffmembers had been locked into such a non-listening path. However, she was not my staffmember, she was not serving litigants, but instead was providing lemonade and other food and drink, and saw a line waiting behind me.

This encounter reminded me of the innumerable instances where people do not listen or barely listen, whether because they think they are right, have limited patience, have limited focus, have limited confidence, feel uncomfortable with or dislike towards the speaker or in their own skin, have limited intelligence, are too focused on planning their own next words to speak so as not to be able to listen, fear the outcome of hearing out the other person, or because of a host of other reasons. Non-listening afflicts people at all levels in the world, from cashiers, salespeople, teachers, managers, executives, judges, prosecutors, to police and more. Are any of the most successful people bad listeners? One would seem to cancel out the other.

Alleged crime victims and criminal defendants so often feel marginalized in the courtroom and by criminal case procedure. Criminal complainants can feel dwarfed by the agendas of busy prosecutors and busy judges, many of whom want to move along dockets, and plenty who want to chase dockets, and many who want to triage cases. Criminal defendants can feel voiceless by their lawyers who urge them generally not to discuss their cases with anyone other than their legal defense team, to assert their right to remain silent in court, and not to discuss their entire version of events with their lawyer until at least the first round of criminal discovery is received.

I recall a misdemeanor mediation that I attended with my client, where our only chance of getting our case dismissed through mediation (which dismissal happened, ultimately) was for both the complainant and my criminal defendant client to tell their version of events uninterrupted -— their story -— and how they felt about the incident. It is not easy for me to give up so much of my representative role in favor of having my client speak face-to-face with the complainant, but I was reassured by two reliable colleagues practicing in this particular courthouse that the mediation discussions are well protected from being used against the defendant outside the mediation room, and I had no other choice if mediation was going to have a chance of benefitting my client.

Because of the confidentiality agreement for this mediation, I will go into no specific details of this case. Suffice it to say, though, I witnessed at this mediation the power and feeling of self-worth that the complainant seemed to feel he had reclaimed by telling his detailed story, without interruption by anyone, let alone by my cross examination, and without being bound by courtroom procedure or rules of evidence. He got listened to fully.

The possibility of a dismissal through mediation also required my client to talk, which runs counter to my default of telling my clients not to discuss their cases with any opposing witnesses. Here, too, my client was able to tell his story, without being guided by me during his talk, and also was fully listened to in this safe environment of a mediation program that had already been underway for a long time. Of course I prepare my clients for what to expect and what to say in a mediation and in court, but also I remind my clients to be in the moment, to put the key points into their own words, to speak from their hearts in tandem with using their minds and wisdom, and not to speak as if grasping for a script.

The complainant at this mediation had gotten the matter off his chest, and more, my client got a chance to get his message out, without any filtering from his lawyer, and the parties, facilitated by the mediator, reached a written agreement for the prosecutor to dismiss the case, on for specific and mild terms and conditions that I omit here. The mediation came to a resolution, my client and I departed, and later came the notice that the prosecution against my client was being dismissed by the prosecutor.

Many misdemeanor charges — and some lower level felony charges, at least — are excellent candidates for mediation efforts, where the complainant can feel that rather than the criminal defendant’s case getting resolved with limited complainant involvement, the defendant will be required to confront the complainant, the complainant’s words, and the complainant’s feelings if the defendant wants a chance of a dismissal or case inactivation through mediation. Sadly, such mediation programs are rare in the jurisdictions where I practice. That can change and must change.

How to have a mediation with such so-called victimless crimes/alleged crimes as drug cases? Perhaps the role of complainant in such mediations can be that of a police officer who handles many drug cases, or a representative of the community to express concerns the representative has about illegal drugs’ effect on the community’s quality of life and on the children who use those drugs. Ideally, police will not be present at criminal case mediations.

In jurisdictions that do not have formal mediation programs, the criminal defense lawyer can still offer the prosecutor a mediation option where the defense will arrange to obtain and pay a mediator if the prosecutor does not want to help pay for mediation. Whether or not a formal mediation offer is accepted by the prosecutor, I can increase the chances that a complainant will be on board to recommend a case dismissal or inactivation by my offering the complainant a third way to try to resolve the criminal case, not one where the complainant, the criminal defendant or both feel they have been shafted in the judicial process, but one where the complainant can seek an alternative and more fruitful way to move forward and to heal from the incident (where my client can hear out the complainant, but not talk himself or herself if we do not have an enforceable confidentiality provision through a mediation agreement), and where my client will have a shot at avoiding a conviction through facing up to his complainant, regardless of where the real truth of the case lies. This is a restorative justice approach, focusing on moving forward and healing, rather than on seeking a pound of flesh or an eye for an eye, nor for the overburdened, overly institutionalized, overly formal, overly inflexible, and overgrown criminal justice system to take a stab at doing anything good in helping the complainant and the defendant. This approach involves empowering the parties by letting them tell their story, and having them truly heard and listened to. This is also a way to reduce the clogged daily trial court dockets around the nation.