Online Journal of Peace and Conflict Resolution 1.2 -- May 1998
The Mediation of a Drunk Driving Death:
A Case Development Study
Some Observations and Principles for Victim Offender Mediation in Cases of Seriously Violent Crimes
by Marty Price, J.D.
Victim offender mediation programs are coming of age in a time of increasing violence in virtually every segment of society. Most victim offender programs limit their service to juvenile and/or property crimes. But as a growing number of programs are finding that a face-to-face encounter can be invaluable in even the most heinous of crimes, many are gradually broadening their scope to include the mediation of carefully screened incidents of more serious crimes and crimes committed by adults.
Usually at the request of the victims, a number of programs have now mediated rapes and other violent assaults, and mediations have taken place between murderers and the families of their victims. Increasingly, mediation is being used to help repair the lives of victims and offenders devastated by drunk-driving fatalities. It should be emphasized that, in cases of such serious, violent or catastrophic losses, the use of the victim offender mediation process would not be recommended for all, or perhaps even for most victims and offenders. Such cases must be carefully assessed for their appropriateness for mediation, and participation must be absolutely voluntary for both the victim and the offender. Extensive preparation of the participants is essential, often requiring months or even years of work with mediators and mental health professionals, before victim and offender are ready to face each other. Such preparation is needed, particularly, to assure that no re-victimization of any kind will take place at the mediation meeting.
In some models of victim offender mediation, and often in cases of less serious crimes, the primary purpose of the initial meetings with the participants is to get them to the mediation table, where the work of conflict resolution and reconciliation will be done. But in cases of serious or violent crime, the structured mediation meeting is the culmination of a process in which the work that may be the most intense has already been done. By the time the participants get to the table, ideally, they will be clear about what they think and feel about the crime and its effects, they will know what they want to communicate at the meeting and they will know what results they want to achieve there. Mediating conflict will probably not be the primary focus of the meeting. In fact, there may be little or no conflict to mediate and restitution, especially in cases of a lost life, may be impossible or meaningless. The models of mediation and negotiation to which we have become accustomed may have little applicability.
Mediation meetings in these kinds of cases will likely have somewhat different goals than those of the typical victim offender mediation; the skills and training required are somewhat different, too. In these cases, the primary focus of the mediation meeting will be to provide an opportunity for the victim and the offender to contribute to each other's healing by sharing their pain and regrets. In these kinds of cases, the lack of emphasis on conflict resolution and restitution leads this author to question whether it is even appropriate to refer to the process as "mediation." Indeed, a pioneer in the field, Mark S. Umbreit, Ph.D., of the University of Minnesota, has reframed (and perhaps even renamed) the process in his recent article, entitled, "Mediating Homicide Cases: A Journey of the Heart Through Dialogue and Mutual Aid."
In his article, Dr. Umbreit delineates some other distinguishing characteristics of the emotionally intense process of mediating severely violent crimes, including the coaching of the participants in the communication of intense feelings. Mediators or "facilitators" need special skills and knowledge. From the perspective of working with the victim, the mediator needs:
- an understanding of the victimization experience and its phases,
- experience in dealing with grief and loss (our own and others),
- an understanding of post-traumatic stress and its impact and
- the ability to collaborate with psychotherapists.
From the perspective of working with the offender, the mediator needs:
- an understanding of the criminal justice and corrections systems,
- an understanding of the experience of offenders and prisoners,
- the ability to relate in an extremely non-judgmental manner to offenders who have committed heinous crimes and
- the ability to negotiate with high-level corrections officials to gain access to the offender and to conduct mediation in prison.
A study of the mediation process which this author (Price) "shepherded" in a drunk driving death case offers many examples of the critical importance of thorough case development. Some of the most illustrative of those examples follow.
Case Development with the Family of the Victim
Peter and Kathleen Serrell are the "eighty-something" elderly parents of Elaine Serrell Myers, who was killed by a drunk driver in April 1993, in rural southwestern Washington state. The driver, Sally, (not her real name) is a 25 year-old single mother with two young children. When Peter first contacted the author about the possibility of mediation, Peter anticipated facing the offender alone. His wife, his three surviving daughters and his son-in-law all felt unable or disinclined to participate. The author recommended that Peter would be ill-advised to mediate without the participation of his wife, because of the risk that their 50-year marriage might be jeopardized as a result. (Marital breakdown all too frequently follows the violent death of a child.) Peter agreed to work with the author in the preliminary case assessment, with an understanding that he would not proceed to mediation unless and until Kathleen was ready to join him. We gathered information about the offense and the offender and we explored his thoughts and feelings.
As we worked together, Peter shared his process and progress with his wife and family. Over a period of months, family members joined the developing case. Ultimately, the family members participating in the mediation included Peter and Kathleen, their son-in-law, David (Elaine's widower), their daughter, Barbara and her husband, Dave; their daughter, Betty, and her 10 year-old daughter, Aileen. (Elaine had been Aileen's favorite aunt and the two were close. Aileen asked to be allowed to participate.) The development of the case included a family meeting in which Betty, who resides in another state, participated by way of speaker-phone.
At the family meeting, family members in turn shared their pain and discussed the impact of their loss of Elaine. They "brainstormed" what they wanted from the offender--what requests they might make of her that could in any way meaningfully address their loss. No one was interested in monetary compensation from Sally. Their goals fell within two main themes. First, they wanted Sally to be rehabilitated and to use her experience to help keep drunk drivers off the road. It was important that Sally take responsibility to make the world a better place for her having survived the crash. Second, there was great concern for the welfare of her young children. What could be done so that they would do better in the world than their mother had? Could the mediation process produce agreements that would help break the cycle of tragedy? The participants shared their thoughts and feelings about what they wanted from Sally. Individual and joint conclusions were reached.
David Lee Myers, Elaine's widower, had for many months remained steadfast in his belief that he would be unable to contain his hate and anger sufficiently to be able to face the woman who had killed his wife of twenty-seven years. The family meeting led David to conclude that he wanted to participate in the mediation. As he and others who had not planned on participating reached the same decision, David moved from hate to compassion. It was David who observed that, with the growing number of family members who would be at the mediation, the offender would need to have someone there for her support. He proposed that she be invited to bring "someone who cares about her to sit next to her and hold her hand."
The author proposed, and the family discussed, the desirability of providing Sally with copies of their victim impact statements, in advance of the mediation. (The victim impact statements might help Sally grasp the nature and depth of their losses.) Some family members were opposed. It was agreed that Sally would be sent only the victim impact statements of those who wished their statements to be sent.
The offender suffered devastating injuries in the crash and there was initial doubt as to whether she would survive. After about three months of hospitalization and recovery in a nursing home, Sally was arraigned and charged with Vehicular Homicide. An attorney was appointed by the Court to represent her. Serrell family members attended the arraignment and experienced the anger often felt by crime victims when the offender pleads "not guilty."
Case Development with the Offender
The development of the offender's side of the case began with a letter to her defense attorney, explaining the potential benefits of a face-to-face meeting. In a candid telephone conversation which followed, the attorney made himself vulnerable and became an invaluable supporter of the ensuing process. He openly acknowledged that he found the letter of introduction intimidating. He continued to explain that, as a criminal defense lawyer, he often feels as if he is, in a way, an extension of his client. He said, because of that, he had always used his "professional detachment" to distance and protect himself from the pain caused by the misdeeds of his clients. As such, he found the idea of facing Elaine's family, along with his client, to be very threatening. Nonetheless, he believed that the victim offender mediation process would be valuable for his client. But first, they would have to decide whether she would enter a guilty plea. If she decided to plead guilty, he would recommend that she mediate. Once that decision was made, the attorney became an active supporter of the mediation process.
The defense attorney is an influential and powerful figure in the life of a person who is accused of a serious crime. The attorney is the only official who is on the side of the offender, in a criminal justice system where all of the power of the State is marshalled against the offender, i.e., "People vs. Jane Doe." Individuals in the role of an accused criminal have a strong tendency to hand their decision-making power over to their attorney; many attorneys are accustomed to accepting or even encouraging such a deferral. So the defense attorney's support or lack thereof is likely to be pivotal to the success of the mediation in cases where the offender has not yet been convicted.
In this case, the defense attorney attended the mediation with the understanding that his role was that of observer, adviser and supporter of his client. He never spoke for her, as attorneys commonly do. Finding that balance with the attorney is both sensitive and critical. In the face-to-face and heart-to-heart confrontation between victim and offender, where body language is at least as important as the words spoken, it does not work to have a representative doing the communicating for one of the participants.
(At the sentencing in this case, the defense attorney told the judge that the mediation, "was a very satisfying experience for everyone involved and a significant event for me as an attorney. It produced a kind of 'procedural satisfaction' that is often lacking--people often leave the criminal justice process feeling that the process has passed them by.")
In the initial interview at her attorney's office, the 25 year-old offender appeared pale and gaunt and she walked with the help of a cane. At the outset, Sally expressed her fear that Elaine's family would be as angry and hateful as she would feel if someone whom she loved had been killed by a drunk driver. Sally described the events leading to the collision, her nearly-fatal injuries and continuing recovery, and her horror at learning that she had killed someone. She sobbed through much of the 2-hour interview.
Although, at one point in the meeting, Sally said that she "had not only killed someone, but had destroyed the lives of two families," Sally's concerns focused mostly upon the extent of her own suffering and that of her family. At this time, her ability to empathize with the family of the victim seemed to be limited. She was given a pre-mediation "homework assignment" which asked her to do some thinking and writing about how Elaine's family members might be affected. The assignment also asked her to consider what she would want to say to them and what she thought they might want from her.
Sally revealed that she had been convicted of drunk driving 4 years earlier and also that her father "drinks too much." She said that she had consumed no alcohol since the accident. However, she denied that she was an alcoholic or had a drinking problem. The author explained to her that one of Elaine's family's strongest motivations in wanting to mediate with her came from their interest in assuring themselves that she would never again endanger other lives. They hoped that confronting her might make a difference. It was suggested to her that the family probably would not find her denial of a drinking problem to be credible or acceptable. For that reason, it was strongly recommended that Sally obtain an alcohol abuse evaluation, so that she could come to the mediation with more information about her use of alcohol. She said she would consider it.
We agreed to talk again in a few weeks. By that time, Sally had read the victim impact statements and had obtained an alcohol abuse evaluation. When we spoke, Sally seemed to be a changed person--the victim impact statements had opened her heart and broken through her defensiveness and self-pity. She was overwhelmed by the enormity of the loss and pain that she had caused. Further, the alcohol evaluation had broken through her denial of an alcohol problem. The alcohol counselor had concluded that she was a "beginning to intermediate alcoholic." Sally explained that, "It's normal to get drunk in my town. That's all there is to do. I thought it was normal to go out with my girlfriends and drink. We went out almost every weekend and some week nights. Now I know that it's not normal. I wish that what happened to me would wake up those people, but it hasn't. They don't think it can happen to them."
Sally said that, once "her eyes had been opened" she began to speak to her friends and acquaintances about their drinking and driving and telling them of the horror of what she had done. She said she wanted to find a way to have her experience make a difference for others and perhaps save lives.
It was becoming apparent that Sally was ready to meet Elaine's family. For support at the mediation, she would be accompanied by her best friend. Her fiancee was willing to be there with her, but, "he would want to defend me and that's not what I'm going there for." That seemed like another indicator of Sally's readiness to mediate. She "got it." She was going to the mediation, remorseful and repentant, with empathy for the victims and without denial, defensiveness or self-pity, to face the Serrells and accept responsibility for what she had done. A positive outcome from the mediation would be very likely. There was little likelihood that the victims in this case would experience the kind of emotional re-victimization that can occur if the offender makes excuses or attempts to blame the victim or someone else.
For the victims, the benefits of the case development process may be illustrated by a quote from a letter that Peter sent to this author, just a few days prior to the scheduled mediation.
"Kathleen and I have decided that the peace of mind, the healing and the ending of our sense of powerlessness that have already taken place for us have been more than worth what has gone into preparing ourselves for the mediation. We are both prepared for the mediation to turn out however it will."
The events and results of the four-and-a-half-hour mediation meeting were, in the view of this author, essentially predictable from what had gone before it. Many tears were shed, many eloquent words were said, and the victims and offender each became allies in the healing of the other. The meeting resulted in a mediation agreement in which Sally agreed to attend AA meetings and victim impact panels while in prison. She agreed to find ways to work against drunk driving in her community, such as speaking to high school drivers' education classes when she is released. The agreement also included items to help give her the tools to make good on her promises. She will further her education, complete her G.E.D., write at least weekly to each of her children, attend church each week, improve her parenting skills, and give 10% of her income to charity. She will write a quarterly letter to Peter to report on her progress on each of these items. The participants consented that the agreement, which would have been confidential otherwise, could be submitted to the prosecutor and the judge for consideration in mitigation of Sally's sentence.
The sentencing was attended by all of the participants in the mediation. Betty Menkin read from her victim impact statement, written months earlier, speaking of what would be necessary to earn her forgiveness:
"Forgiveness is not something which I believe is my obligation to bestow unilaterally, but it can be earned. The perpetrator must show the five R's: recognition, remorse, repentance, restitution and reform. Recognition means admitting that what she did was wrong, and that she is responsible for the wrongdoing and all of the negative consequences that follow from it. (If she is in jail, she recognizes that it is because she drove drunk, not because the prosecutor or the judge was mean or unfair to her. If she is in pain, she recognizes it is because she drove drunk, not blaming it on the lack of pain medicine or a lack of medical science's ability to fix her as good as new.) Remorse means that each time she thinks of the wrong she did, she regrets that she did not make a better choice. It is a repeated rehearsal of how she wishes she had done it differently, how she would do it differently if given another chance. Repentance is when a deep remorse leads to a firm resolve to do better in the future. Restitution cannot be direct in this case--there is no way that she can provide a wife for David or a sister for me. The only restitution she can make is a lifelong commitment to a daily effort toward making the world a better place for her having survived the crash. She is not required to complete the job of repairing the world, but she must not be excused from starting and continually working at the job. Reform means that she must create a new form of herself--to emerge as a sober person, a thoughtful and considerate person, a contributor. If she can do all of these, I can forgive."
The prosecutor, as well as Sally's attorney, pointed to the mediation agreement as evidence of Sally's voluntary and courageous contribution to the healing of the victims, as well as to her own rehabilitation. Nonetheless, because of her previous drunk driving conviction, the judge sentenced Sally to the maximum term that she could receive under the state's mandatory sentencing guidelines.
Now about fifteen months into her thirty four month prison sentence, Sally has maintained regular and frequent correspondence with all of the family members and they have visited her twice in prison. According to her reports, she has (as much as is possible so far) complied with all of her mediated agreements, including having completed her General Education Diploma (G.E.D.) In addition, she has become the leader of her Alcoholics Anonymous group.
Family members have reported a seemingly miraculous new freedom to focus on the present and the future rather than continuing to dwell in the painful past. On the anniversary of Elaine's death, the family gathered to place the headstone on her grave. At the ceremony, they formed a "sharing circle" (much as had been done at that first family meeting with the author.) But a year later, they focused not upon how Elaine died but upon how she lived and how they could carry her legacy forward. Members of the Serrell family are petitioning the governor of the state of Washington for a pardon or an early parole for Sally.
In summary, some basic principles and guidelines may be gleaned from this case. Some of them are equally applicable to the mediation of less serious crimes.
- A violent crime typically impacts many more people than just the immediate victim. The "getting ready" time required for each who could benefit from meeting with the offender will differ. Each victim will move through the stages of grief and loss at a different pace. The case development process must allow for those time differences.
- A case must "ripen" for mediation. The passing of time will allow for necessary healing and emerging clarity about what the participants want and need from the mediation process. This "ripening" may be encouraged with "homework assignments" that assist the participants in exploring feelings, developing empathy or getting clear about what they want and need. The mediator must have an ability to sense what is "missing" and craft appropriate tasks.
- The mediator must be able to work effectively with, and enlist the cooperation of the defense attorney, as well as prosecutors, judges, probation and corrections officials and mental health professionals.
- There is a delicate balance to be ascertained between the prerequisites for a successful mediation (such as a certain level of victim empathy on the part of the offender) and the recognition that some level of the same attributes, i.e., victim empathy, may need to emerge from the offender as a result of the face-to-face experience of the victim's pain and loss. The importance of protecting victims from the possibility of a re-victimization must be carefully weighed. Sensible, calculated risks may need to be taken, but only with the fully informed consent of the victim.
- A patiently and sensitively shepherded case that is appropriate for mediation will almost certainly produce a positive experience for the participants. If the process of case development is not going well and a positive outcome does not seem likely, it will be essential to slow down and reassess. It may be appropriate to abandon the prospect of mediation and refer participants to other kinds of resources.
- When employed skillfully and in appropriate situations, the power of this process to facilitate healing, closure, reconciliation and rehabilitation is enormous. For many participants, the experience has been life-transforming.
Serrell/Cooper Case Update
The Serrell family's petition for clemency was denied. Sally served her last three months in custody at a work release center. While there, she began speaking on Mothers Against Drunk Driving (MADD) panels, telling drunk-driving offenders how she had killed someone. She told her story to a number of high school driver education classes and worked as a cashier in a no-alcohol night club.
After serving 21 months of her sentence, Sally was paroled for good behavior on December 29, 1995. On December 31, the day of New Year's Eve, a story about this case appeared on the front page of The Sunday Oregonian (the largest daily newspaper in Oregon.) For this interview, "Sally" chose to give up her anonymity. For the first time, she told her story as Susanna Cooper and a photograph of her appeared. Members of the Serrell family and Susanna explained that they came forward at this time, in the hope that this news story might save some lives on the highway that evening. The national wire services picked up the story and it appeared throughout the United States.
The following April, 1996, the community radio station where Elaine had been a volunteer broadcaster as "The Rainforest Gardener" dedicated a community garden in Elaine's memory. Susanna attended the dedication. The Serrells and Susanna met each other with hugs.
That weekend, the Serrells, Susanna and I gave interviews to "Save Our Streets," a nationally syndicated network TV show about new and hopeful responses to crime. The episode, called "Making Amends," has aired four times.
In October, 1996, at the opening session of the annual conference of the international Victim-Offender Mediation Association, Susanna and Betty Menkin told their story together. Then they, along with Peter and Kathleen, who were in the audience, were honored with a standing ovation.
Susanna and the Serrell family remain in regular contact, in a unique healing alliance between victims and offender. Susanna remains clean and sober and is attending community college classes, with the Serrell family providing her tuition and books. Susanna continues to tell her story to drunk-driving offenders and high school driving students.
This story, which has touched the hearts of people around the world, is now in the process of becoming a made-for-TV movie. It will be broadcast in late 1998.
(Paper origionally presented June 7, 1994 at the International Conference of the Victim-Offender Mediation Association, Winnipeg, Manitoba, Canada)
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