South Carolina Lawyers Weekly
Charleston County Chief Administrative Judge Markley Dennis balked at the thought of using mediation to resolve criminal cases when a local mediator pitched the idea six or seven years ago.
“My first thought was, ‘That’s just crazy. It won’t work,’” Dennis said.
Unlike civil mediation, criminal mediation requires “some admission of wrongdoing on the part of the defendant before you can even start mediating,” said Jill HaLevi, the mediator that Dennis rejected. But she continued to advocate for criminal mediation, also known as “victim-offender mediation” or “restorative justice,” and, eventually, Dennis warmed to the idea.
A former public defender who co-founded the Mediation and Meeting Center of Charleston and chairs the South Carolina Bar’s Dispute Resolution Council, HaLevi received criminal mediation training during a 2008 seminar in Michigan. She was unaware of any other criminal mediators currently operating in the Palmetto State.
“Everyone I talk to says, ‘Wow. That’s a great thing and I really hope we can get this going,’” she said. “But nothing really happens. There needs to be some training, procedures and money.”
HaLevi’s passion for criminal mediation stems from her decade in criminal defense. She said she “felt that there was something that was not humane about that practice for both sides.”
“It can be humiliating for victims to take the stand and, at the same time, my clients would have loved to have had the opportunity to say they were sorry in a way that would’ve been heard,” she added. “But the bottom line is it’s too late when you get to court. Everyone’s in battle mode.”
‘There’s got to be a willingness’
After initially dismissing the idea, Dennis reconsidered criminal mediation about a year ago, when he began experimenting with a new docket control system that gives him more power over when criminal cases are scheduled for trial. Prosecutors previously had exclusive control over the criminal docket.
“I felt that it was a good time to revisit it,” Dennis said. He’s already suggested mediation as an alternative to trial in a few criminal cases, but so far the parties in only one case have opted to take that unorthodox route.
“You’ve got to have a willingness to do it,” Dennis said. “Victims are so adamant. … That’s the problem. There’s got to be a willingness on the part of the victims. You can’t force that.”
To underscore his point, Dennis described a bond modification hearing he had earlier in the day in which a septuagenarian defendant had asked to remove an ankle bracelet due to swelling from a medical condition. But the victim’s family vehemently opposed the request.
“That just shows you how adamant and upset they are a year or so after the crime has been committed,” Dennis said. He knows how crime can breed long-lasting resentment—he watched it happen with his father.
Dennis’ grandfather, a state senator, was gunned down on the street in Moncks Corner in 1930, and his father remained bitter about the murder until he died some 60 years later, Dennis said.
“It’s just real,” he added. “I don’t think you can push through that.”
Barking dogs and love triangles
Cases suited for mediation are typically those that involve restitution, such as property crimes, and those with victims and offenders who are likely to have an ongoing relationship, according to HaLevi.
Of the few criminal cases she’s mediated, one involved neighbors feuding over a barking dog and another was a love-triangle assault case in which a woman attacked her friend. Mediation in the barking dog case involved some yelling and accusations, but in the end both parties agreed that they didn’t want the criminal case to proceed. And the offender had to admit wrongdoing, “which is a big part of it sometimes,” HaLevi said.
“An admission and an apology can go a long way in these cases,” she added.
An apology also led to a resolution in the love-triangle assault case, according to HaLevi. She said the victim had been afraid of the woman who assaulted her, but getting them “sitting in the same room together reassured her [the victim] that she didn’t need to be so fearful.”
“It was a little bit like therapy,” she said. “You’re trying to accomplish something that they can walk away with and feel like they’ve made a decision that will be helpful to both of them moving forward.”
‘This is going to happen’
The case that Dennis sent to mediation as part of a scheduling order—after both sides agreed to mediate—is ongoing and those involved in the matter could not discuss what it was about. But one of the attorneys, prominent Charleston criminal defense lawyer Andy Savage, said the experience had already turned him into a criminal mediation believer.
“I’m impressed with it,” he said in an earlier interview. “I’m a convert. It’s quite the opposite of what we usually do. In this case, we’re working in a collaborative way from different perspectives but with the same goal.”
Savage said his client agreed to pay for HaLevi to mediate the case. But he and HaLevi suggested in separate talks that it’s going to take government money—otherwise, defendants who can’t afford a mediator will be shut out of the process—and a buy-in from prosecutors and defense lawyers for criminal mediation to expand statewide.
Pushback from the solicitor stalled an attempt to launch a criminal mediation pilot program four years ago in the counties of Allendale, Beaufort, Colleton, Hampton and Jasper, according to 14th Circuit Chief Administrative Judge Perry Buckner.
He said the solicitor refused to agree to roll out the program circuit-wide, which prevented him from getting the grant money he and then-Supreme Court Chief Justice Jean Toal, who supported the effort, needed to get the program started.
“The problem with mediation in general sessions court is that you’d have to get a grant because we need mediators and a vast majority of the cases in general sessions court are indigent cases,” he said. “But mediation has definitely addressed the backlog of civil cases and I think it would help us with the backlog of criminal cases.”
Criminal mediation has already taken root in other states, including North Carolina, where the legislature and court system have adopted rules and laws to certify and regulate criminal mediators who offer their services in community centers. They’ve been helping to resolve misdemeanor criminal cases filed in the state’s district courts for more than a decade.
“Mediation in the family court and civil court never really took off until it became part of the system,” HaLevi said. “I think the same thing would have to happen with criminal for it to really take off.”
She added that she’s aware of “informal talks” about expanding criminal mediation and said there’s “more interest in part because civil and family mediations are so entrenched in the system now.”
“I do think this is going to happen on a larger scale,” she said.
Follow Phillip Bantz on Twitter @SCLWBantz
