I. Introduction

1. Purpose of the Study

Victim-offender mediation is a program that provides the victims and the wrongdoers of crimes with an opportunity to resolve the conflict through mediation and reconciliation with each other in certain types of criminal cases. Victim-offender mediation involves a meeting between the interested parties facilitated by a trained mediator who is a non-governmental neutral third party. An agreement reached through mediation is reflected to the dispositions of the case.
Victim-offender mediation started in 2007 from the Crime Victim Support Center under the district public prosecutors offices across the country, and its practice was stipulated in the Crime Victim Protection Act 2010 setting the Criminal Conciliation Committee as the official body to take charge of the program. Since its enforcement, both the number of referrals to victim-offender mediation and the rate of agreement reached by the parties at mediation have increased continuously. In this context, the present study will review the last ten year’s operation of the program in the field and seek ways to improve the relevant legislation and the system.

2. Scope and Methodology of the Study

To examine the operational status of the victim-offender mediation program, first, we reviewed the relevant legislation and precedent researches on this subject and then conducted in-depth interviews and survey. In addition, to refer to the victim-offender mediation program in Germany where the system was established earlier than in most of other countries, we made a personal visit to a relevant institute in Germany and obtained the sources and literature, which have given us a useful insight to assess the victim-offender mediation in Korea and find ways to improve our system in future. Further, we have co-host an academic symposium with the Supreme Public Prosecutors’ Office and announced the results of individual issues collected from each session in the symposium to suggest a policy direction.

Ⅱ. Background of Victim-Offender Mediation

1. Background and Outcomes in Comparative Legal Approaches

This section discusses the background and the legislative process of victim-offender mediation in other countries, including the US. and Germany, and examines the circumstances in which the victim-offender mediation program was introduced to the Korea’s criminal justice system and the outcomes.
Victim-offender mediation is distinguished from ‘reconciliation’ in which the interested parties reach a resolution without a third-party involvement, and also from ‘arbitration’ in which a neutral third party makes a decision for the parties based on the evidence the parties present. Unlike reconciliation and arbitration, in mediation a neutral third party assists the parties to negotiate and resolve the case. In other words, mediation practiced in criminal justice system provides the victims and their wrongdoers with an independent process of mediation using a non-governmental neutral third party in which the parties themselves participate willingly and proactively and the results are reflected in the disposition of the case.
Victim-offender mediation was adopted first by the US judicial institutes in 1969, when the Philadelphia Office of District Attorney, the Philadelphia District Courts, and the American Mediation Association jointly installed a mediation tribunal in Philadelphia to seek a more efficient resolution mechanism through an instrument other than the existing judicial procedures for less serious crimes and property crime cases, such as financial transactions by fraudulent means. The District Attorney's Office in Columbus, Ohio, too, adopted a similar mediation program in its criminal justice process. Following these examples, victim-offender mediation has become widespread across the country as a local dispute resolution program and developed into the victim-offender mediation program as we see today. The US system influenced Europe and the countries, such as the UK, Germany and France, started to apply it to their justice system.

2. Characteristics and Restorative Justice Dialogue of the Current Victim-Offender Mediation Program

Depending on the objective, victim-offender mediation program can be generally classified into 'problem solution' type and 'restorative justice' type. The problem-solution type mediation can be further divided into settlement-driven type mediation, which focuses on reaching a settlement between the parties, and case management type mediation, which intends to relieve the heavy judical caseload of the courts. It appears that the public prosecutors offices in Korea modeled its victim-offender mediation program after alternative dispute resolution (ADR) initiated in the US.
In restorative justice type mediation, restorative justice is an idea that comprehend all responses to crime that attempt to do justice by encouraging the interested parties to the crimes, including the victims and their wrongdoers, or the members of the local communities, to participate in the resolution process actively and thus to seek restoration of harm suffered by the victims or the local communities and promote reintegration of the parties. As restorative justice originated from various traditions and social movements of individual countries and has developed for responding to the unique needs of each community, the concept is difficult to define in clear terms. However, given that victim-offender mediation is a process where the interested parties in a certain crime gather together to discuss how to deal with the impacts of the crime and its implications for the future, we can conclude that victim-offender mediation reflects a restorative justice perspective to criminal justice system.
While the discussion on whether victim-offender mediation is restorative justice program, or problem-solution type mediation or ADR system continues, it is difficult to determine if victim-offender mediation practice in Korea can be explained by a single idea. The legal scholars have agreed that the heavy workload of the courts became the immediate cause that initiated the program, based on evidence that prior to the program's introduction the members of the judiciary were burdened with excessive caseload and there was widespread awareness to deal with the issue as quickly as possible. Moreover, the studies on how to apply the idea of restorative justice to a practical model became more specified and full-scale at this time. In this circumstance, victim-offender mediation program was introduced into our criminal justice system.

3. Outcome of Victim-Offender Mediation Program

From the perspective of justice system, victim-offender mediation is most likely to be cost efficient as it reduces the legal costs required in court proceedings. In fact, since 2010 the rates of both referral to mediation and settlement through mediation have increased rapidly, recording 87,272 case referral in 2015 (59.6% increase compared to 2014) with 58% settlement rate. In the first half of 2016 (from January to June), the number of referral to mediation was 59,691 (36.7% increase compared to 2015) with 60.1% settlement rate. The phenomenon supports that it is a reasonable method for conflict resolution. Further, it can be interpreted that the effects of criminal dispute resolution by victim-offender mediation have spread on the judicial front over time, and that not only the prosecutors who refer the case to mediation but also the parties themselves have built confidence in the effectiveness of the system. In the investigation process, since settlements at mediation accompanied by withdrawal of charges usually eliminate the concern about a recharge or appeal, mediation relieves, in all likelihood, the public prosecutors' burdens following a disposition of non-indictment.

Ⅲ. Operation of Victim-Offender Mediation

1. Objective

The current system allows only the public prosecutors to refer the appropriate cases to the mediation program. Once a referral is made to the Criminal Conciliation Committee, the committee prepares a mediation record, based on which mediation proceeds. If the mediation becomes successful, a written decision is drafted instead of settlement agreement between the parties and the prosecution can consider the decision of the mediation when it investigates and disposes the case. Pursuant to Article 41 Section 2 of the Enforcement Decree of the Crime Victim Protection Act, criminal cases which may be submitted to victim-offender mediation are prescribed in Article 46 of the Enforcement Decree (‘Cases subject to Criminal Conciliation’). Pursuant to the law, the Criminal Conciliation Committee, the official organization in charge of mediation program, is placed under the district public prosecutors’ offices and their branches. Therefore, the opinions and moving direction of the committee are significant in understanding the operation of victim-offender mediation program and improving the institution. The present study has attempted to comprehend the operation status of victim-offender mediation program based on in-depth interviews and survey conducted on the committee.

2. Results of In-depth Interviews

1) We conducted in-depth interviews on the committee members, commonly called ‘mediator’, who attended at the workshop held in each jurisdiction of High Prosecutors Office across the country from June 28 to July 8, 2016. In detail, total eight times’ individual and collective interviews were conducted on 18 mediators. The job types of the participant mediators in these interviews included teaching profession, business management, counselling, professionals, and public service (in the past).

2) As for the composition of the subject of in-depth interviews, male (12 participants, 66.7%) were more than female (6 participants, 33.3%) and the interviewees who were, at the time of interview or previously, in teaching profession had a higher proportion (7 participants, 39%) in the group. Once the interview commenced, the average length of interview per interviewee was between 40 minutes and one hour for individual interview, and between one hour and a half and two hours for collective interviews where two or more participants were interviewed.

3) According to the tran from the in-depth interviews, the mediators, that is, the members of the Criminal Conciliation Committee were appointed either by recommendation of relevant institutes, such as the Metropolitan or Provincial Offices of Education and universities, upon request of the public prosecutors’ offices or the Crime Victim Support Center, or by the interviewees’s voluntary approach to the recommendation body as they were interested in victim-offender mediation program. Another case included a combination of a request of an acquaintance who was already as a mediator, request of a relevant institute and the interviewee’s own interests in the mediation program, resulting in the interviewee’s appointment as a mediator for victim-offender mediation.
Based on a comprehensive review of their qualification, the mediators were generally reappointed as long as there were no significant flaws in their attitude and capability in participating in the program. Most of the mediators appeared to be positive about reappointment. As for the job types of the chairperson of the committee, opinion was divided between those in favor and those against that the chairperson should be a lawyer. It appears that these answers reflected their wish to determine whether a candidate for chairperson is a good fit for the role through a general examination of the candidate, including his or her knowledge, accomplishment, attitude and inclination. Most of the interviewees have answered that empathy, communication and active listening are the most important qualities in a mediator. Some mentioned legal knowledge and decent appearance as well.

4) To a question concerning other mediators’ attitude toward mediation and the parties of the case, the majority have replied that authoritative and not-actively listening attitudes, and in case of lawyer-mediators insincere attitude need to be rectified. In particular, many interviewees have pointed out forceful attitude and sense of authority as bad attitudes, which require improvement.

5) As for the types of cases they are frequently assigned, the majority have answered that they often experience the cases which require them to resolve the emotional conflicts between the parties, the cases concerning disputes among the relatives, and violence committed on or by vehicle drivers, and opined that the resolution of emotional conflicts is the most appropriate subject of mediation. Some mentioned their concerns about being assigned to a case that is not proper to victim-offender mediation, as well as the challenges they feel on the front due to a lack of standards for settlement agreement at mediation.

6) As for the education provided to the mediators, most of the interviewees have expressed their wishes for better course contents, and replied that the current method and content of education require improvement to include mediation skills, importance of empathetic understanding, legal knowledge for frequent case types, certificate, and step-by-step education, Regarding establishment of a professional education institute for victim-offender mediation or an independent organization in charge of the program, the majority answered affirmatively while some were negative for reasons such as the status of the organization, efficiency in operation, and changes in the composition of the Criminal Conciliation Committee.

3. Results of Survey

1) The survey was conducted targeting the mediators in active service across the country. 910 out of total 2,724 mediators have participated in the survey and the response rate was 94%. The survey was composed of a questionnaire with 22 questions, of which 21 were short-answer questions and one was a deion question, and was sent to each district public prosecutors' office via mail to be distributed to the mediators belonged to the district.
The survey was designed to focus on checking the current operating status of the mediation program. Therefore, the questions concerned and analyzed the participants's views on the objective of victim-offender mediation, cases appropriate to the program, peer group review, their opinion about the current victim-offender mediation education, treatment of the mediators, ways to improve the current system.

2) First, as for the participants' sex and age, male were 722 (81.8%) and female were 161 (18.2%). Persons in their 60s were the majority with 372 participants (41.5%), followed by persons in their 50s (28.9%) and 70s (14.6%). The average age of the mediators is 59.65 (SD=9.79). This result can be understood taking into account that most of mediators start their service after retirement, or that the role requires knowledge and some accomplishments in their own field, and that relatively older ages of the mediators are advantageous in reaching a settlement at mediation.

3) In most cases, the types of cases that the participating mediators currently dealt with corresponded to the types of cases they thought to be appropriate to mediation program. The most frequent cases the participants handle were physical violence and injury with 29.1%, followed by fraud (27%) and delayed payment of wage (violation of the Labor Standards Act) (14.9%). The types of cases that the participants thought to be appropriate were physical violation and injury (28.2%) and delayed payment of wage (13.9%). The result indicates that in the type of cases the participating mediators frequently deal with they often obtained relatively satisfactory outcomes at mediation.

4) Most of participants have answered that the objectives of victim-offender mediation are dispute resolution and restoration of relationship. It indicates that they understand mediating conflicts between the victims and their wrongdoers is the mediators' key role and the purpose of the program as well.

5) In peer group uation, the survey asked the participants' opinion by dividing the target peers into general mediators and the mediators in legal profession. Their opinion was different in respect of virtues and professionalism of the role of mediator. The general mediators, who are not in legal profession, set a high value on thoughtfulness toward the parties at mediation and active listening and thus focused on such virtues in their service. On the other hand, the mediators in legal profession appeared to lack those virtues despite their professionalism. This can be interpreted as that the former understand the nature of the purpose of mediation to be relationship-oriented, while the latter understand it to be economic and legal. Such difference was found in their opinion about the mediation education, too. Although the both groups considered education on a case-by-case basis case study most important, following which the general mediators selected legal education and the mediators in legal profession selected counselling skills as the next important in the curriculum. It is likely that both groups feel the needs of complementary education to improve their weaknesses.

6) Regarding the education for victim-offender mediation, most participants answered that they would need step-by-step intensive curriculum (68.7%) and were positive about certificate or diploma of course completion (66.3%). As for the operational status of the current victim-offender mediation system, the majority replied affirmatively. To a question asking which areas require improvement to make the system better, professionalism of the mediators (39.8%), efficiency of mediation process (29.2%), and institutional improvement (19.2%) were pointed out.

7) The participating mediators who think that an integrated operational body for mediation system is necessary (72.4%) have also answered, when they were asked about the operational scope of such body, that it should be the same as the present one (60.2%). The result indicates that although the mediators are positive toward the integrated operational body that runs independently as currently, they are, at the same time, concerned about the problems that could occur if the function of the institution is extended to other private organization or public agencies.
As for the treatment for mediators, payment by case was favored by the majority (55.5%). Some also mentioned that they would like better treatment by the public prosecutors' office (provision of parking, entrance and identification card), improved attitudes of the staffs of the prosecutors' offices toward the mediators, and proper distribution of the number of cases.

Ⅳ. Operation and Implications of the Victim-Offender Mediation in Germany

This part examines the normative interpretation of the German system and its policy implications first and suggests a direction that our system should proceed.

1) The most salient feature in the German victim-offender mediation system is the legislative support that enables a broad application of mediation. In particular, Article 155a of their Criminal Procedure Act assigns a duty on prosecution to determine, in every stage of the criminal procedures, whether victim-offender mediation is possible and if so, to endeavor to promote a successful mediation. Moreover, the German victim-offender mediation combines the outcome of mediation and legal effects. It means that the interested parties' autonomic dispute resolution at their own disposition, and the government's formal response to a crime through criminal justice system can be operated independently from each other. Even when the two run separately, the outcome of the parties own dispute resolution can be considered in weighing of an offence against the wrongdoer. That victim-offender mediation in Germany has a solid legal foundation in the Criminal Act, the Criminal Procedures Act, and the Juvenile Courts Act, and further that the legislation requires the criminal justice system to consider the possibility of mediation in every step of criminal procedures and thus prepares an institutional foundation to apply the mediation system in a broader scale suggest us a significant implication in our discussion to improve the criminal mediation system in Korea, which has a relatively weak legal basis.

2) In Germany, with the introduction of victim-offender mediation, private mediation organizations were created and the number has increased gradually. In detail, the number of private mediation organizations were only 21 in 2005 but it increased to 55 in 2014. That the leadership has shifted from the public sector to private sector, and that the majority of mediation organizations which used to be an integrated mediation body in the past have been changed into a professionalized mediation organization and now account for 85% of the organization are suggestive about the Korea's environment where private organizations for victim-offender mediation rarely exist.

3) The mediator education in Germany requires the mediators, including the existing members, to complete the course for a certain time period. The individuals who wish to work as a mediator must first acquire an overall knowledge about victim-offender mediation through a one-year curriculum and then learn the mediation skills to handle more complex cases. Once a candidate completes the course successfully, he/she will receive a diploma (certificate) under a strict condition.

4) The following is the summary of implications that we can gather from the German system of victim-offender mediation. First, the most significant is the cultivation of mediation organization from the private sector. As implied by the German case, in which private mediation organizations outnumber their counterparts in the public sector, private bodies can take the role of mediator as professionally as public bodies. In addition, given that when a private mediation organization carries out criminal mediation, it must have professionalism required to complete the job successfully, the Department of Justice may consider accrediting the private organizations on a consistent standard basis to ensure a certain level of professionalism. Second, an opportunity to receive an educational training must be offered to the candidates. In Germany, the candidates are required to complete a one-year training course provided by the Victim-Offender Mediation Service Administration in Köln or obtain an equivalent. In our criminal justice system, such curriculum as the German, credit requirements for completion of the course, and detailed rules governing grant of a certificate or license are necessary, along with the elementary materials, including manual or course materials and training schedule. Lastly, if we extend the provider of victim-offender mediation to private mediation organizations, a central body will be necessary for efficient operation of the system, in which case the main businesses of the central body shall include accrediting a private organization applicant, planning education and training courses, and making a standard manual for victim-offender mediation.

Ⅴ. Operational Status of Victim-Offender Mediation and Policy Suggestion

1. Operational Status

1) Referrals to mediation are made by the request of the parties themselves to the prosecution or by direct authority of the prosecutor in charge of the case. Mediation cases are selected based on their importance and on whether a criminal charge was laid out by the prosecution. Not only litigation cases, but also criminal cases known by the law enforcement if restoration of loss, and conflicts and/or disputes resolution are necessary are included. The laws and guidelines list the types of cases that cannot be subject to mediation and we can interpret it as the law’s intent to prevent any impediment to investigation or exercise of prosecutorial power because of victim-offender mediation, and to handle the cases in a more timely manner if the cases are relatively simple involving no needs to mobilize further investigation. Referral to mediation should be made within one month from the date when the subject case is assigned to the prosecutor. The prosecutors in charge of victim-offender mediation are responsible for selection and appointment of the mediators and mediator education. Criminal mediators are appointed through recommendation by all levels of society, or through examination of the voluntary candidates who respond to the recruitment. Although criminal mediators are not public servant, in that the outcome of mediation may be reflected to prosecution’s disposition of the case, minimum standards for mediator qualification, morality and neutrality are necessary.

2) In principle, the Criminal Conciliation Committees are comprised of more than two committee members, or mediators; however, 3 mediator-committee is the basic structure in most cases. One of the members in the committee takes the position of chairperson and presides the mediation process. The selection of mediation date varies depending on the number of mediation cases in the district, nature of the case and the number of the parties, and the mediator’s own schedule. In brief, victim-offender mediation proceeds with attendance of the parties → introduction of the mediators and the mediation system → the parties addressing their positions to the mediators → discussion and mediators' suggestion of mediation proposal → settlement agreed by the parties. The process does not involve prosecutorial intervention. Once the mediation meeting os over, the chairperson submits the relevant ation, such as mediation records and a written decision of mediation, to the prosecutor’s office which has referred the case to mediation and notifies the result. As for the effects of settled and non-settled mediation, first, in case where settlement is made at mediation and restitution is paid to the victim for its loss, the prosecution may consider it as extenuating circumstance in favor of the accused. Nevertheless, even when the mediation fails, the prosecution should not consider the result adversely to the accused. In practice, failed mediation and whether the accused/offender is charged by the prosecution are separate affairs, but in some cases the victim and/or the accusers request during investigation that their wrongdoer be placed under severe punishment.

3) The reasons that the parties to a crime attend the mediation are not clear.
In the mediation meetings, the parties often sign the confirmation of intent without understanding what it means and therefore it is hard to see that the mediation and the result of it are genuinely voluntary in nature. Given that, in order to obtain the parties’ more positive and voluntary consent to mediation process, ensuring their understanding of the case and the purpose of victim-offender mediation and their agreement to mediation is necessary. Next, about a half of cases subject to mediation concern financial damages, of which fraud hold a large part. In case of property crime, such as fraud, although referral to mediation does not depend on the amount of damages, referral of fraud crimes oher than petty crimes to mediation causes unnecessary burdens on the mediation committee as the facts are difficult to confirm at the mediation and finding a solution to satisfy the both parties is challenging.

4) Since mediators play an important role in dispute resolution and integration of local communities, fairness, objectivity, neutrality and professionalism are required of them. Unfortunately, the in-depth interview has revealed that complaints are raised concerning appointment and selection process of the mediators. In fact, there is no rule or regulation concerning the standard, process and method of mediator appointment under the current legislation, and the candidates’ qualifications are often not verified consequently. It, in turn, raises concerns that the public would lose its confidence in the victim-offender mediation system. In addition, taking into consideration that the in-depth interview has revealed that the composition of mediators may be divided into two groups, i.e., lawyer/mediators, and non-lawyer mediators, more detailed and customized education curriculum would need to be offered to each group.
The result of in-depth interview has also revealed that the professional groups comprised of lawyers have lower success rates at mediation and some analyze it is because the lawyer/mediators often think that they understand the case better than the parties, which is not a proper attitude to help the mediation in the end. Although legal knowledge of the professional lawyer/mediators benefits the parties in their understanding the case, in order to raise the success rate of mediation an education to develop the mediation techniques and the interpersonal communication skills is essential.

5) The following is the summary of the problems addressed regarding the Criminal Conciliation Committee, which is the core issue in our victim-offender mediation program. First, most of the mediators and the parties to a crime at mediation feel that the length of time assigned to a mediation session is too short. Moreover, as the referral of violence causing bodily injury cases to mediation program has increased recently mediation requires more time. Therefore, securing sufficient length of time is important. In addition, under the current system, almost all mediation meetings are completed in one session and it is unfortunate because there are cases that could be resolved only if more time is allowed to mediation. For such cases, a second mediation meeting should be actively arranged. Finally, as various experiences from the mediation process can be a useful source to improve our victim-offender mediation system meetings, a method and procedures to secure feedback by\ collecting and analyzing the relevant data should be prepared.

6) In regards to the mediator education, provided that the current appointment system continues, it is necessary to change the current way in which the mediator education is provided to both newly appointed and re-appointed mediators alike without distinction, to separate the education for each group and combine the instructor’s lecture and the mediators participation in the course. Also necessary is diversifying the contents of education to include mediation techniques, communication skills and empathetic understanding and listening, in addition to legal knowledge.

7) According to the results from the in-depth interview and survey on the installation of an organization in charge of victim-offender mediation, the mediators are highly interested in a method to professionalize the mediation program and no objection has been raised to the idea that a control tower is necessary for operation and management of the system. From a nationwide perspective, installation of an integrated central body which would support and manage the victim-offender mediation program is necessary.

8) As for the treatment or payment to the mediators, most mediators regard the work as a voluntary service to their communities. In this context, often the efforts to resolve the conflicts and disputes of the parties to a crime at mediation are made by individual mediators themselves under each branch or district of pubic prosecutors office. Such endeavor gives a good impression to the general public, but for victim-offender mediation system to be fully utilized and settle in the communities its payment system, too, should be refined in a more practical and organized manner. The current mediation system is founded on the Crime Victim Protection Act, and the operation budget including payment to the mediators comes from the crime victim protection fund. Because of that, sometimes the fund was not available for the occasions more appropriate to its purpose.
Therefore, it is imperative to actively promote the effect and achievement of victim-offender mediation and thus to secure the budget for the system operation.

2. Policy Suggestion

1) First, with careful consideration of the nature and purpose of victim-offender mediation, the prosecution would need to change its traditional viewpoint toward the victim-offender mediation system that it is operated within the larger framework of government-initiated criminal justice. Instead, the prosecution needs to see the mediation system from a perspective of judicial democracy and diversification of disputes resolution. In addition, the mediators themselves should understand the nature of victim-offender mediation as restorative justice, different from general criminal procedures and serve the public in this perspective.

2) Further, the mediators should recognize that the qualities of mediator are not limited to legal knowledge, but include abilities to feel empathy, communicate and listen actively and should continuously endeavor to improve these skills. Moreover, as the mediators play a crucial role in victim-offender mediation program to the extent that the success of mediation meeting would depend on them, it is necessary to develop a mechanism to select and appoint qualified candidates from among those who, at the minimum, complete the training course and to give them priority in the reappointment process. Policy considerations in customized education programs for the mediators, such as step-by-step education courses and intensive training session, are also required.

3) Finally, installation of a body in charge of victim-offender mediation program needs consideration. As we discuss in the earlier part of this study, there has been a social consensus that an integrated body to operate and manage victim-offender mediation program is necessary to improve and settle the system. Moreover, victim-offender mediation is closely connected to criminal justice procedures. Given that, the needs for an integrated body become more salient.