U.S. Department of Justice 

Office of Community Oriented Policing Services 

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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 

 

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). 



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 


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 SDPDPlanning 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 ADRMovement in America . . . . . . . . . . . . . . . . . . . .75 
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75 
ADRMovement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 
Disputes in Everyday Life . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 
Origins of the ADRMovement . . . . . . . . . . . . . . . . . . . . . . . . . . . .78 
Mediation in the Criminal Justice System . . . . . . . . . . . . . . . . . . . . .82 
Effectiveness of Mediation and Other ADR Procedures . . . . . . . . . . . . . . . 87 

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

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



Acknowledgments 

This report was supported by Grant 1999CKWX1016 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 Resolution, 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 permitting 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 oversight 
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, answered our questions, and provided us with 
both information and valuable suggestions for other potential sources of information. 



About the Authors 

Samuel 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. 

Carol 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. 

Leigh 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. 

 

Introduction 

Mediation, 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. This 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. 


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:1 

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"2 (National 
Conference of Commissioners on Uniform State Law 2000). 

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. 

1 Many sources define mediation and 
other ADR procedures. See, for example, 
Singer (1994); Goldberg, Sander, and 
Rogers (1992); and McGillis (1997). 

2 There is, however, a trend toward 
mandatory mediation. See Kovach (1997). 


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 11. 

Fig. 11
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 couldnt have solved this without your expert help.
Mediation was not only cheaper, it was far less stressful
than going to court.

Fair
Quick
Results
Affordable
Accessible
Confidential
Commitment
Trained Mediators
Neutral atmosphere
You make the agreement
Most cases reach agreement

Source: Minneapolis Civilian Review Authority. Used by permission. 


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. 

Is mediation the way to go? 
Absolutely. 

 Minneapolis Police 
Federation, Show Up 
(August 1998) 



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 21. 

Box 21 
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. 


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. 



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 investigatorsfrom either internal 
affairs or a citizen oversight agencybut 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 



Empowerment 

Experts in mediation believe that it empowers each of the parties 
involved 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.3 

3 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? 


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 


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). 

Better Understanding of Policing 

Interviewed mediators reported that mediation offers citizens an 
opportunity 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. 

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

 

Empowerment 

A major benefit of mediation for participants is the feeling of 
empowerment, or being heard by the opposing party.4 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). 

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: internal 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. 

4 For information about the concept of 
empowerment, see Bush and Folger (1994) 
and Schwerin (1995). 


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 

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 
philosophy 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 22). 

Box 22 
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. 

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 mutually 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). 


Benefits for Complaint Process 

More Efficient Complaint Processing 

One of the most serious problems with traditional complaint 
investigation procedures is a delay 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. 

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). 

Potential Benefits of Mediation 

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 


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. 

 

Higher Success Rate 

Only about 10 percent of all citizen complaints are sustained, meaning 
that the investigation 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 Mediation 

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).5 

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.6 Box 31 shows the 
voluntary aspects of mediation for citizens and police officers. 

5 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). 

6 Scholars have noted that a similar 
element of coercion affects many "court 
attached" forms of mediation. See 
especially the observations in Tomasic 
(1982). 


Box 31 

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 

For the Police Officer: 
N/A 
Yes 
Yes 
Yes 
Yes 
Yes 
No 

N/A = not applicable.

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.7 

7 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 exceptions 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. 



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 involving 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 
concern. 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."8 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. 

Some experts argue that no complaints involving complainants who 
are members of racial or ethnic minority groups should be mediated, 
regardless of the allegation. We 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. 

8 Vivian Berger, interview with authors, 2000. 


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). 



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). 


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 ethnic-city
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. 

 

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 32). 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). 


Box 32 
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 
controlthat 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) 



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 33). 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). 

 

Box 33 
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 33). 

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.9 

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. 

9 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). 


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 

 

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.10 An 
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. Perhaps 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. 

10 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). 



Mediators 

Mediator Skills 

Mediation programs should only use trained professional mediators. 
Mediation is an important and complex undertaking, and it should not 
involve 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.11 

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. 

Number of Mediators 

Some programs mediate cases with a single mediator, and others use 
two mediators at each 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. 

11 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. 


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 34). 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 34
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 35 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. 



Box 45 
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 

NAME 
DATE 

NAME 
DATE 

Source: San Diego Police Department. 


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 by 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 



(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. 


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. This 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. 

 

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-aged 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. 


An Important Exception 

At least one important exception to the standard case outcome 
process is found in Portland, Oregon. There 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. 

 

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. 


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. 


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).12 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. 

12 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 


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 associationsthe 
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. 


Survey Results 

Number of Mediation Programs 

The national survey identified 16 citizen complaint mediation 
programs in the United States (see Table 41). When the survey 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 41 
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) 
3 
100% (3/3) 
N/A
 
Berkeley, CA 
Police Review Commission 
1 (1998) 
1 
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) 
2 
66.66% (2/3) 
2.94%
 
Dover, DE 
Center for Community Justice 
3(1998) 
0 
0% (0/3) 
0%
 
Kansas City, MO 
Office of Citizen Complaints 
3 (1998) 
3 
100% (3/3) 
N/A 

Milwaukee, WI 
Fire & Police Commission 
17 (1998) 
5 
34% (5/17) 
5.8% 

Minneapolis, MN 
Minneapolis Civilian Police Review Authority 
39 (1998) 
13 
33.33% (13/39) 
11.5% 

New Haven, CT 
Community Mediation 
1 (1998) 
0 
0% (0/1) 
0% 

New York, NY 
Citizen Complaint Review Board 
14 (1998) 
14 
100% (14/14) 
.0028% 

Portland, OR 
Neighborhood Mediation Center 
24 (1998) 
7 
28% (7/24) 
.0206% 

Rochester, NY 
Center for Dispute Settlement 
5 (1998) 
2 
40% (2/5) 
2.1% 

San Francisco, CA 
Police Commission/Office of Citizen Complaints 
30 (1998) 
4 
13% (4/30) 
.0037% 

Santa Cruz, CA 
Citizens Police Review Board
0 (1997) 
0 
0% (0/0) 
0% 
Syracuse, NY 
Citizen Review Board 
13 (1997) 
0 
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. 


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 41 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 42). 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. 


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 42 
Minneapolis Civilian Police Review Authority 
Year 
Cases sent to mediation 
Successful Mediation 
% successful cases 
% complaints successfully mediated 

1991
14
1
0.07% 
N/A
 
1992
27
6
22.22% 
N/A
 
1993 
11
2
18.18% 
N/A

1994 
17
8
47.06% 
5.30% (8/150) 

1995 
14
4
28.57%
2.7% (4/146) 

1996 
39
8
20.51% 
6.2% (8/129) 

1997 
30
14
46.67% 
8.8% (14/159)

1998 
39
13
33.33% 
11.5% (13/113) 



Basic Program Structure 

Program operations. Mediation programs are operated by citizen 
oversight 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.13 Mediators in 
Minneapolis and New York City work on a pro bono basis, which 
substantially reduces program costs. 

13 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 programs. For example, 8 of the 14 active mediation 
programs only handle cases involving allegations of less serious, 


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 



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


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. 



An evaluation of the Portland mediation program identified five major 
reasons that complainants decline to participate (see box 41): 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 41 
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).14 The success of 


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). 

14 The effectiveness of the Minneapolis 
CRA relative to other oversight agencies 
is discussed in Walker (2001) and Finn 
(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 


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. 


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. 


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). 


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. 


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 51. 


Box 51 
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. The 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 


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. 


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. 


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 developed 10 specific program objectives (see 
Box 52). 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 52 
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 representativesand 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 


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. 


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.15 

15 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? 


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? 


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? 


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. 


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. 

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. 

Many citizen complaints are 
not officially about race, but 
are really about race. 

 Vivian Berger, Mediator, 
New York City 

 

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.16 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. 

16 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).17 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. 

17 For a discussion of the problems 
related to studying police use of force, 
see Bureau of Justice Statistics (1999b).


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. 


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 


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. 



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.18 

18 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 compensatory, in which the solution is some form 
of payment or other compensation; therapeutic, in which the accused 
person receives some form of help; and conciliatory, 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. 

Sustain Rates 

Complaint investigation procedures have traditionally been evaluated 
in terms of the percentage 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 
Statesthe Police Complaints Authority, a national complaints system 
in the United Kingdom, sustains less than five percent of all 
complaints (Maguire 1991). 
 

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 


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 outcomean 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 


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 61 shows the 
essential differences between mediation and the criminal trial model. 

Box 61 
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 


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 



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.19 Finally, about 95 
percent of all law schools teach some form of ADR (Singer 1994). 

19 See the SPIDR Web site 
(www.spidr.org). 

In the context of this wide range of activity covering virtually every 
aspect of American life, the relative absence of citizen complaint 
mediation programs is remarkable. 

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. 


Box 71 
Responses to Disputes and Possible Outcomes 

Response 
Possible Outcome 

Ignore 
Problem festers/escalates, Avoid certain people/situations, Problem disappears 

Settle informally 
Friend or colleague intervenes, Face-to-face resolution 

Settle formally 
Formal complaint filed, Lawsuit filed 

Use ADR procedure 
Mediation, Conciliation, Arbitration 

People respond to disputes in various ways. The most common 
response is to ignore the problem. This response is called "lumping it" 
(Felstiner 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.). 


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 employees 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. 


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. 

 

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.20 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 


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. 

20 For a discussion of the transformative 
perspective, see Bush and Folger (1994).

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.21 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). 

Other areas of American life also experienced a surge in ADR activity. 
One major area involved divorce, 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. 

21 Singer (1994) estimated 350 
neighborhood justice centers in the United 
States by 1990. 


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 systempolice, 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 


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 lets 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. 


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 


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 


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 victimindividual(s) or the communityto negotiate a healing or 
"restorative" solution (Nicholl 2000a; Galaway and Hudson 1996; 
Karp 1998). 


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.22 

22 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  


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.23 

23 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. 


Implications for Mediating Citizen Complaints 

The findings regarding the effectiveness of mediation and other ADR 
procedures have 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. 

 

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