Is ADR (Alternative Dispute Resolution) Philosophy Relevant to Criminal Justice? - Plea Bargains as Mediation Process between the Accused and the Prosecution

Abstract

The defense counsel in a rape case makes his way to the District Attorney's offices in order to work out a possible plea bargain. His client maintains that the sex was fully consensual, while the District Attorney claims that he has substantial evidence to the contrary. His client's position is that he is innocent of the charge and is entitled to a full acquittal, while the District Attorney is demanding that the full weight of the law be brought to bear against him, including a hefty custodial sentence. Defense counsel knows from reading the evidential material that an integral part of his client's posturing and that of the District Attorney merely amount to rhetoric for the purposes of conducting negotiations, and that it would be an uphill battle to prove either of the two extreme positions. Defense counsel is experienced enough to know that there is insufficient evidence in the case to convict his client of rape, but the chances of an acquittal are also unclear. The acceptable solution in his view is to reach a plea bargain, according to which his client will admit to a minor sex offense in return for a relatively light sentence, enabling the prosecution therefore also to feel vindicated. With this aim in mind, the accused's attorney makes his way to the District Attorney's offices. The client also needs convincing that this is the best deal for him in the circumstances, or at least it amounts to the lesser of two evils.A criminal case of such kind, far from being uncommon, is the standard practice of defense counsels in the overwhelming number of cases . In this article, it will be argued that defense counsel's function in such instances is identical to that of a mediator, seeking as he does to reconcile the positions of the accused and the prosecution. Within this framework, the plea bargain should be seen as part of the broad conception of Alternative Dispute Resolution (ADR) which first made its appearance at the late 1970's.An analysis of plea bargains in the western world as part of the broader concept of Alternative Dispute Resolution actually shows that it is the defense counsel, rather than the court or the other parties to the issue, who functions as mediator, assessing the interests of the parties caught up in the dispute . This also gives expression to the philosophy of privatization upon which mediation is based. The tactics of influence and creating an impression of force employed by the defense counsel in plea bargains are identical in every way to those used by mediators. The methods of persuasion, use of pressure, delineation of the debate, manipulations and numerous other parameters are identical to those employed by the mediator. As a result, if indeed the mediation function of the defense counsel in plea bargaining may be recognized, it will be argued that this has implications, rooted in applying the accumulated experience of the mediator in private litigation in relation also to plea bargains in criminal cases.