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Mediation Chapter of the 2002 Annual Report

Independent Police Review Division

The Citizen-Police Mediation Program
(Originally published as Chapter Five of the IPR’s 2002 Annual Report)

The IPR contracted with a panel of professional mediators in late September 2002, to begin offering mediation as an option for complaint resolution.  This chapter reports on the development, implementation, and underlying philosophy of the IPR’s mediation program. 

What is Mediation? 

Mediation is a voluntary, confidential dialog process where the parties with a dispute talk to each other about what happened, under the guidance of neutral, professional mediators.  The goal is not one side winning over the other, or assigning guilt or blame, but providing an opportunity to be fairly heard, increase mutual understanding, and discuss ways to prevent similar problems in the future.

Police-Citizen Mediation
Programs Nationally

Mediation evolved out of a widespread trend to look for alternatives to traditional adversarial methods of conflict resolution, in which parties approach each other as enemies and appeal to some higher authority to sort the matter out.  Mediation developed as a way to give control over the conflict resolution process back to the parties most directly involved. The reasoning is that people are more likely to achieve a satisfying resolution (and make peace with each other) through increased mutual understanding and cooperative problem-solving than by approaching each other as enemies, or seeking legal retribution for perceived wrongs. 

The trend toward using mediation to resolve disputes has been growing rapidly over the last 30 years in a range of areas, including employee grievances, divorce, small claims, land-use and resource issues, neighborhood disputes, and even in some criminal cases. 

Many police complaints seem well suited to resolution through mediation.  For example, much citizen-police conflict is based on misunderstandings, which mediation can address better than punishment.   While law enforcement agencies worldwide have begun using mediation to resolve some citizen-police conflicts, relatively few citizen-police mediation programs exist in theUnited States, and they handle only a small number of cases.   A national study (by Walker, et al) of citizen-police mediation programs found that as of 2000, out of a total of 17,120 U.S. law enforcement agencies, about 100 had oversight agencies, but only 16 had mediation programs. New York and San Francisco mediated only about 1% of all their complaints.  The highest percentage of mediations in any program was Minnesota at 11%.

The complete version the paper is accessible on the web at: www.cops.usdoj.gov. Mediating Citizen Complaints Against Police Officers: A Guide for Police and Community Leaders, by Sam Walker, Carol Archbold, and Leigh Herbst, 2002, US Department of Justice, COPS program. 

Walker et al identified four main obstacles to mediation:

  • Police officer and police union opposition 
  • Lack of understanding of mediation by both officers and citizens
  • Lack of resources for mediation programs
  • Lack of incentives to participate for officers and complainants

History of Police/Citizen
Mediation in Portland

Portland first began mediating citizen-police disputes in 1993, with a pilot mediation program operated through the Neighborhood Mediation Center (NMC).  At that time complaints against police officers went directly to the Internal Affairs Division (IAD), who routed suitable cases to the NMC.  The staff of NMC then contacted the parties and scheduled the mediations.  The sessions themselves were conducted by volunteer neighborhood mediators.

The pilot project ran from 1993 through 2001, when it was reassigned from the NMC to the newly created Independent Police Review Division.  In all the years of the pilot program, however, only 14 total cases were mediated.  All but one of these mediations was rated as successful and worthwhile by both the citizens and officers involved.  

Why Did the Program End?

The principal reason the pilot program ended was because mediation became part of the IPR’s mission when the IPR was created.  Among the identified weaknesses of the pilot program, the principal problems were lack of dedicated staff and funding, as well as unclear expectations and performance measurements.  There was no clear-cut criteria for selecting cases, and mediation was used rarely enough that the procedure was unclear.  The NeighborhoodMediationCenter was given the job of performing the mediations, but not given any additional funds or staff to handle it.

As a consequence, timeliness was a problem.  Police resistance to mediation, while an issue, did not prove to be the serious problem for Portland that it has been in other cities. 

How It Was Created

The ordinance establishing the Independent Police Review Division included a provision for creation of a mediation component.  The task of building and managing the program was assigned to the IPR Community Relations Coordinator. The first step involved research into best practices and avoiding the problems other programs have encountered. The IPR Community Relations Coordinator also attended advanced training in police mediation through the Regional Community Policing Institute in San Diego, CA

A number of key considerations emerged. 

A major problem for many citizen-police mediation programs has been opposition by police officers and the unions that represent them.  This has been partly because many officers – like many citizens – don’t fully understand what mediation is, how it works, and what benefits it offers. In the course of shaping the IPR’s new program, some of the more common concerns of officers were identified.  These included:

  • Concern that they would be compelled to apologize or admit wrongdoing even if they had done nothing wrong. (Not true; as a completely voluntary process, people are not required to say or do anything they don’t want to).
  • Concern that it couldn’t do any good, that the complainant is simply too unpleasant or unreasonable a person for mediation to succeed.  (Generally not true; both citizens and officers often have seen each other at their worst during an incident that generates a complaint. They may see a very different side during mediation. But mediation can succeed even with unpleasant and unreasonable people.  That’s part of the mediator’s role).
  • Concern that mediation would do nothing more than provide a complainant with an opportunity to verbally attack officers. (Generally not true; part of the mediator’s job is to prevent this).
  • Concern on both sides that if they spoke freely, their words might be twisted and used against them in civil or criminal proceedings.  (Not true; the content of a mediation session is subject to a legally binding confidentiality agreement).

Another challenge to successful citizen-police mediation programs is the lack of incentives for officers to participate.  In order to provide meaningful incentives, the IPR decided to make mediation an alternative to the traditional complaint process.  If an officer mediates, there is no Internal Affairs investigation and no further disciplinary action.  No record of the complaint will mar the officer’s service record; though the IPR keeps record of it. (An officer with too many complaints, or who has failed in the past to demonstrate good faith in mediating, may be barred from mediation).  After the mediation, the case is closed and cannot be appealed. Because of this, the burden is upon the IPR to make certain that serious or chronic misconduct issues are not ignored or inappropriately assigned to mediation.  

To address the challenges of police resistance, the IPR engaged in significant outreach efforts within the Police Bureau, to educate officers about mediation, address their concerns, promote mediation as an option, and to encourage police command staff to do likewise.  The IPR collaborated with the Internal Affairs Division (IAD) to create and distribute written materials about the mediation program within the Bureau; to produce an informational videotape for presentation at precinct roll calls; and to hold numerous meetings and presentations for command staff, the police union, and others.

It must be noted, however, that resistance on the part of officers is far from universal, nor is it even the norm.  Thus far officers have agreed willingly to mediate even when they believe they did nothing wrong, not to escape discipline but as a service to the complainant, as a tool of community policing, and as a way to clear up misunderstandings.

Another strategy to ensure the success of the program (and to increase police confidence in the process) was the decision to contract with skilled professionals as mediators. Citizen-police mediation can be unusually challenging.  There is the potential for feelings to run deep on both sides, and it is important that the mediator has the skill and experience to make mediation constructive. 

Mediators were recruited through a competitive announcement for contractors, advertised in general media as well as within the mediation community, including through the Oregon Mediation Association.  Nineteen bids were received, and eight mediators were selected, all  experienced professionals, and  respected members of the Oregon mediation community. 

How Mediation Cases Are
Selected

The process of determining which cases will be considered for mediation is part of the overall intake process for all complaints received by the IPR. If the case would otherwise by declined by IPR, it is not considered for mediation, either.  The only other kind of cases specifically excluded from consideration for mediation are those in which the allegations, if sustained, would result in such serious disciplinary actions as criminal charges against or dismissal of the officer.  So, for example, allegations of criminal conduct or excessive force are not eligible for mediation.    

Remaining cases are reviewed by the IPR Director for suitability for mediation. The first criterion is whether the complainant indicates an interest in or willingness to consider mediation when asked during the initial intake interview.

The second criterion for mediation is whether the IPR Director, IPR Community Relations Coordinator and Captain of Internal Affairs believe that mediation would be an appropriate and productive way to address the complaint.

Mediation is approved in those cases where IPR and the Police Bureau believe that it is likely to (1) result in greater complainant satisfaction, (2)  result in improved officer conduct, and/or (3) contribute to community policing goals of improved citizen-police relations.  The goal is to provide opportunities for citizens to learn more about police procedure and perspectives, to sensitize officers to their perspectives and concerns, and for officers to receive feedback on how their conduct appears to citizens

Some complaints, due to the serious nature of the allegations, require full investigation and, potentially, disciplinary action.  The IPR will not allow significant issues of misconduct to disappear in the confidential process of mediation.  In yet other cases, various features of the case or the individuals involved lead us to believe that mediation would not ultimately be productive for either party. 

How the Mediation Occurs

If both the IPR Director and the Captain of the Internal Affairs Division approve a case for mediation, IAD sends a notice to the officer(s) inviting them to participate in mediation of the complaint.  If the involved officer(s) agrees to mediation, the complainant is contacted to verify they still wish to participate.  The IPR Community Relations Coordinator makes sure complainants understand that if they choose to mediate, there will be no further investigation and no appeal to the IPR or the Citizen Review Committee.  If either party declines to participate in the mediation, the case is returned to the IPR Director for reconsideration as a possible declination or referral to Internal Affairs. 

If both parties are willing to proceed, the IPR Community Relations Coordinator then schedules the mediation session with a mediator. The timing and location are flexible to accommodate the needs and preferences of the parties.  Generally mediations are held in City Hall, and often are scheduled for weekends and evenings. The understanding between IPR and the Police Bureau is that mediations will be held during the officers’ duty shifts.  No mediations are held in Police Bureau facilities.

A final confirmation notice is sent to all parties of the time, date, and location of the mediation.  Before the mediation begins, the parties are required to sign a consent to mediate form, which includes a confidentiality agreement for their signature.

What Happens During Mediation?

At the beginning of the mediation session the mediators introduce themselves and explain the process and ground-rules (confidentiality, courtesy and mutual respect).  The complainant is then invited to describe their view of the incident under mediation.  The officer(s) also gets to present his/her perspectives.  From that point, dialog begins, with the mediators guiding people as needed back to constructive dialog.  If things get heated, mediators may call brief breaks.  The process continues until both parties feel they have resolved the issue to their satisfaction.   

Upon the completion of the mediation, the parties and the mediator(s) are given exit surveys, to permit effective management and evaluation of the mediation program.  At that point, the case is closed.  No appeal is permitted, although the Citizen Review Committee will audit mediated cases on a regular basis.

Goals for the New Program

The overall goal of the IPR mediation program is to create a program that citizens and officers alike will use, trust, and find fair and valuable. Our ultimate goal is to mediate approximately 10% of all cases.

One of our main goals for 2003, is to improve timeliness.  This was one of the problems with the pilot mediation program, as well; cases frequently took six months or more before mediations occurred.  The goal for the new program is to complete mediations within 45 days or less of intake.  However, many cases assigned to mediation in 2002, went well over 45 days.  Consequently, the IPR made some procedural changes, including the decision not to wait for the resolution of court cases before proceeding, as that almost inevitably causes delays of several months.  Another change was to inform complainants that if they cannot be reached in a reasonable length of time, or fail to respond to repeated phone calls, e-mails or letters, we will be forced to close the case as complainant unavailable. 

The IPR maintains all mediation cases in our data base system.  This, along with the exit surveys distributed to both parties and the mediators after each mediation, allows us to collect and track a variety of data on mediation cases.  Since we have completed only four mediations to date, there is not a great deal to report this year.  For next year, we will be able to measure and evaluate the overall effectiveness of the program, workload over a full year; timeliness; the level of satisfaction with the process on the part of complainants and officers; whether the mediation resulted in successful resolution of the specific issues; and characteristics of the complaints, complainants, and involved officers.