Mediation has been used as a method of conflict resolution in many different cultures for thousands of years.¹ And yet, the idea of mediating citizens’ complaints against law enforcement officers is relatively new. In the current climate, where tensions between U.S. residents and police officers are at an all-time high, it is imperative that the field and communities focus on how to address this conflict in a peaceful, collaborative, problem-solving way. Mediation can be used to not only resolve citizens’ complaints, but also strengthen community-police relations.

What Is Mediation?

Mediation is a confidential, alternative dispute resolution process, facilitated by a mediator that brings disputing parties together to resolve their conflict.² Mediation establishes a safe place where parties in conflict can share their stories and discuss the problems that bring them to mediation. Because it is a confidential process, each party can share openly without fear that information shared during mediation will be used against them later.

The mediation process focuses on four principles:

1. Separate the people from the problem.

2. Focus on interests, not positions.

3. Create options for mutual gain.

4. Find a workable solution.

What Is a Mediator?

A mediator is a neutral party who assists disputing parties in reaching a resolution. Mediators use communication skills and negotiation techniques to help mediation participants hear each other and collaborate on a mutually acceptable resolution to their conflict. Mediators do not take sides, make decisions, decide who is right or wrong, or provide legal advice.

Mediators encourage listening by helping both parties focus on gaining information rather than on listening to respond. Mediators promote the use of interest-based negotiation by helping parties to focus on their needs, fears, desires, and concerns. Mediators demonstrate the importance of an open, nonjudgmental dialogue. By utilizing questions to gain new information and understanding, mediators are able to assist the parties in reaching resolution. Because mediators are neutral third parties who have no authority to decide the outcome of the mediation, mediators encourage people to work collaboratively and own outcomes that are accepted and created by those involved.

Mediating Citizens’ Complaints against Police Officers

Mediation is utilized to address disputes in a variety of settings. While the general process of mediation and the role of the mediator remain the same regardless of the setting, there are benefits and goals specific to mediating citizens’ complaints against police officers.

Confidentiality: Confidentiality in mediation is of utmost importance—in most cases, the legal system cannot force a mediator to testify in court as to what was discussed during mediation.³ Many mediators don’t take notes or destroy their notes after mediation has finished. In police-citizen mediations, confidentiality allows officers to openly share without the fear that what they say will be used against them in later investigations. As such, officers are able to apologize, which they might not otherwise do. Citizens are able to speak candidly about their concerns—also knowing that what they say can’t be used against them in later legal proceedings. The only exceptions to such strict confidentiality involve public policy concerns including but not limited to child or elder abuse or actual or threatened criminal acts.

Control: Mediation increases the control the parties have over the outcome. As opposed to other processes utilized to address citizens’ complaints against officers, mediation allows the officer and the citizen to determine the resolution of the complaint. As such, the outcome of the mediation reflects the interests of both parties.

One notable difference between mediating citizens’ complaints against officers and other mediation programs is how the resolution of the mediation is determined. In traditional mediation models, a resolution is a written agreement between the disputing parties, which details the terms of the agreement. In most cases, even if the agreement is written on a standard template, it incorporates additional terms to which the parties agree. Police-citizen mediation programs vary in how they approach the concept of resolution. Some programs consider a mediation to be resolved if the officer and citizen attend the mediation and simply have a conversation. In other programs, there is a standard resolution agreement that parties sign, but it doesn’t incorporate any additional terms that are reflective of the parties’ conversations or interests. While programs that restrict options for resolution diminish the control that the parties have in determining the outcome, the mediation process, regardless of the program, is a party-driven process that allows both parties to control their own narratives.

Compliance: When the outcome of mediation is reflective of the desires of the parties, any agreement reached is a result of the parties’ mutual agreement. Thus, parties are more likely to comply with the terms of the agreement. As previously mentioned, some mediation programs focus on the conversation between the officer and the citizen as the resolution to the complaint. While the parties may sign a resolution agreement, it isn’t specific to their case. In cases such as those, compliance with the terms of the agreement is less of a concern.

Neutrality: When law enforcement officers and citizens interact in public there is an inherent power imbalance. Officers have more power than citizens. The nature of policing requires that the officers have more control and power or authority than citizens. The power imbalance isn’t necessarily problematic, but it does shape the way officers and citizens interact. Citizens often fear that if they disagree with a law enforcement officer or don’t comply with the officer’s orders, they will be arrested, or even worse, shot and killed. Accordingly, citizens might not feel comfortable expressing their concerns when they believe they have been a victim of police misconduct.

Likewise, especially when on duty, officers must constantly be on guard, fearing for their own safety and the safety of other citizens while maintaining order and control. As such, officers might not be able to address all of the questions and concerns of the citizen in the moment.

Mediation provides the citizen and the officer an opportunity to have a conversation in a neutral setting. It allows the citizen and the officer to have a candid and focused conversation by removing many of the fears and distractions that exist during interactions in a public setting. As a result, both parties are able to focus on the complaint that brings them to mediation and take as much time as necessary to address their concerns.

Support:Conflict is not something most people choose to address on a regular basis. In fact, the U.S. judicial system is overburdened by adjudicating conflict that citizens cannot voluntarily resolve. Mediators act as neutral facilitators, guiding parties through a listening and communication process where parties may choose to resolve differences. Frequently, parties in conflict react to the words they hear from the other person. Listening is a process of patience as the brain works much faster than the mouth. Listening effectively requires considerable self-control. Attentive listening is one of the most useful, yet most challenging, skills to apply during a disagreement. Mediators support parties by assisting parties in setting aside impulses to persuade others that one party is wrong and another is right. Mediators help participants understand what is being said and experienced by those involved. Mediators are also attuned to learning from the parties’ interactions and helping those parties learn.

The mediator helps the parties think outside the box—adding value and creating more options for possible solutions to the dispute. Mediators also offer support to the parties by helping them to hear each other through attentive listening. Parties’ feeling validated and being heard are important characteristics of mediation; however, in a mediation where the conversation is the resolution to a complaint, these feelings are especially important. When a citizen and an officer leave a mediation feeling that their perspectives were heard, acknowledged, and validated, it helps to achieve the main goal of police-citizen mediations, which is to strengthen the relationship between the community and law enforcement.

When to Use Mediation

Mediation can be used when a community member files a complaint alleging that an officer or officers engaged in certain types of misconduct. Cases appropriate for mediation are, in part, dependent on the agency with which the complaint is filed. While mediation programs can vary among agencies, there is a general consensus that cases involving use of force that resulted in serious bodily injury should not be mediated.

Appropriate cases for mediation include the following allegations:

• Inappropriate language or conduct or both

• Harassment

• Use of unnecessary or excessive force (not resulting in serious bodily injury)

• Discrimination

• Failure to provide identification when requested

• Retaliation

Why Mediation?

Agencies that receive and investigate community members’ complaints against law enforcement officers utilize different methods and processes to address the complaints. One process that some agencies use involves a third party who examines the evidence and determines the guilt or innocence of the officer who is the subject of the complaint. If the officer is found to be guilty of engaging in misconduct, punishment is determined by either the agency that received the complaint or the third party who made the determination. This process is similar to what happens in court. Neither the citizen nor the officer have any say in the outcome of the complaint, and, as a result, the outcome might not necessarily comport with what either party desired from the process. This punitive method of handling complaints often leaves parties dissatisfied, as their interests might not be represented, and the process can be lengthy. Additionally, because the needs of either party might not have been met, it allows for negative feelings to fester.

Mediation, on the other hand, allows the community member and the officer to determine the outcome of the complaint. As a result, their interests are reflected in the outcome. Additionally, because mediation is utilized earlier in the investigative process, the citizen and the officer have the opportunity to address their concerns sooner. While not every mediation ends in resolution and satisfied participants, the potential benefits of mediation make it a worthwhile process.

Benefits of Mediation

Mediation in a citizen complaint program is initiated by a community member (known as a complainant) filing a complaint against a law enforcement officer (known as a subject officer). One might assume that only the complainant benefits from the mediation, but that is not the case. While it is true that the complainant initiates the process by filing a complaint, both the complainant and the subject officer can benefit from participating in mediation. Additionally, when citizens and officers come together to have conversations about problematic interactions, the whole community benefits.

• Benefits to citizens

» An opportunity to explain to the officer why they filed the complaint

» A better understanding of police procedures

» A chance to feel empowered and to be heard

» A greater satisfaction with the complaint process

• Benefits to law enforcement officers

» A better understanding of their interactions with citizens

» An opportunity to receive feedback about how their actions were perceived by the citizen

» An opportunity to explain their actions to citizens, including why they did what they did

» A chance to feel empowered and to be heard

» A prospect of having the complaint against the officers dismissed—if the mediation is resolved

The mediation process can be positive for every participant. What a participant gets out of mediation varies from person to person; however, mediation offers, at a base level, an opportunity for a win-win solution to the complaint as opposed to an adversarial and punitive process. When a citizen and an officer are able to represent their interests, while hearing each other, the potential benefits to them and the greater community as a whole are endless.

Examples of Mediating Citizen’s Complaints against Officers

1. A citizen filed a harassment, discrimination, and inappropriate language and conduct complaint against two officers who pulled him over for running a stop sign. The complainant was instructed to get out of his car. While exiting his car, one officer pulled out pepper spray, while the other officer had his hand on his service weapon. The complainant was escorted to the rear of his vehicle, where he was placed in handcuffs and patted down. A bag containing pistachios was taken from him. The complainant stated that the officers embarrassed him and intimidated him with their aggressive behaviors. The complainant further alleged that the officers implied that he was a drug dealer by making comments about the plastic bag recovered from the complainant’s pocket and the black bags he had in the vehicle. The complainant acknowledged he might have run the stop sign and was bothered by the way he was treated during the stop.

The complainant explained that he is a teacher at a school near where he was pulled over and one of the students that goes to the school made a comment about him being pulled over and handcuffed. The complainant told the officers how he felt he was treated differently than others might be treated in the exact same situation.

The officers also explained from their perspective what happened during their interaction with the complainant. They described how they saw the complainant’s vehicle pass through the stop sign without so much as a pause at the sign. They explained the reason they pulled him over was solely for running the stop sign. They explained that the reason they asked him to get out of his car was because he was very hostile, aggressive, and argumentative as they approached the car. Fearing for their safety, they put him in handcuffs. The officers saw only a portion of the plastic bag hanging out of his pocket and could not see what was in the bag initially. They were interested in finding out what was in the bag as the reckless manner in which the complainant was driving in addition to the hostile and aggressive behavior made the officers suspect something more was going on.

The complainant apologized to the officers, as he acknowledged that his behavior that day could have been perceived as aggressive and explained that he had an extremely negative interaction with a different officer a few years prior. The officers also apologized to the complainant for upsetting him. After the apologies, the officers and complainant switched the focus of their conversation to how they could all work together to help the juveniles living in the neighborhood where they all work. They discussed various ways the community and officers could work together to keep kids in school and out of trouble and to eventually help them become productive and prosperous adults. Every party at the mediation walked away with a better understanding of the situation and, ultimately, a better perspective on how to work together to make their community a better place.

2. A complainant filed a complaint citing discrimination and failure to provide identification. According to the complainant, he called 911, requesting police assistance, after seeing someone in his backyard in the middle of the night. He could not identify the person because it was dark. He saw the person walk around the yard and eventually knock on the complainant’s door as the police arrived. The complainant walked outside to meet the officer. He saw that the other person was already talking to the officer and realized that the person was his neighbor. The neighbor told the officer that he had been skateboarding and lost his glasses in the complainant’s backyard. Meanwhile, the complainant attempted to speak to the subject officer to explain his side of the story; however, the officer ignored him. The complainant said that he continued trying to speak with the officer about his concerns with his neighbor being in his backyard, but was ignored. The officer went to look for the neighbor’s glasses in the complainant’s backyard. After finding the neighbor’s glasses, the subject officer, explained that the neighbor was allowed to be in their backyard because he dropped personal property there.

The complainant felt that he was not being treated with the same respect that his neighbor received. He believed that the subject officer was discriminating against him because of his accent. When the complainant requested the subject officer’s badge number and name, the officer refused to provide the information.

At mediation, the complainant explained to the officer that he was upset that the officer did not listen to him. The complainant described how he felt ignored and his belief that the officer discriminated against him because he had an accent. The complainant explained also that he had previous issues with this neighbor and, more recently, packages had been stolen from his porch. Finally, the complainant told the officer that had the officer taken time to listen to the complainant while on the scene, the subject officer would have been aware of the fact that this was not an isolated incident with the neighbor.

The officer shared that he was extremely offended by the accusation that he discriminated against the complainant. What bothered the officer the most was that he is a minority himself, and discrimination is a very personal issue for him. He expressed his frustration but also said he understood how being discriminated against feels. He addressed the complainant’s concern about not being heard. He explained that he had a different perspective about what happened but acknowledged that, perhaps, things could have been handled differently.

As a result of the mediation, the complainant and the officer said they had a better understanding of each other’s perspectives. They were able to have a positive conversation about race and discrimination. The complainant thanked the subject officer and expressed his gratitude for being able to sit down and have a conversation. Both the complainant and the subject officer reported that as a result of the mediation, they felt more positive toward each other.

As shown from these examples, taking the time for a mediation to occur rather than an adjudication of a complaint can bring about positive outcomes for everyone involved.

It is the authors’ experience that mediation and face-to-face facilitated communication can bring better results than adjudication processes. When people sit and talk they learn about differences and perceptions.

Officers share their experiences as law enforcement personnel who care about others in the community and prefer never to draw their weapons. They also learn about how they are perceived by minorities and others in the community, as well as ways they might better work and communicate with people they encounter on a daily basis.

Community members learn about the rigors of being a police officer in their own community. They share their own experiences and how they desire to work with law enforcement, as well as a need for mutual respect. Lines of communication are opened, and people begin to see things differently. Mediation and mediators can help people create solutions and communicate in a more positive manner. ♦

Notes:

¹ Suzanne McCorkle and Melanie J. Reese, Mediation Theory and Practice, 2nd ed. (Thousand Oaks, CA: Sage, 2015), 16.

² Ibid., 3.

³ The National Conference of Commissioners on Uniform State Laws drafted a Uniform Mediation Act in 2001. As of publication, the act had been adopted by 12 U.S. states and adoption was pending in 2 more. Section 8 of the act references confidentiality.