By Ajenai Clemmons, Ombudsman, and Richard Rosenthal, Independent Monitor, Office of the Independent Monitor, City and County of Denver, Colorado
here are several universal challenges that confront police internal affairs bureaus: handling complaints in a timely manner, resolving complaints in a way that provides some level of satisfaction to both officers and community members, capitalizing on the potential of the complaint process to improve police-community relations, and the unique difficulty of establishing the truth or falsity of misconduct allegations. The Denver Police Department (DPD) has found that the community-police mediation program is an efficient and effective way to address all of these challenges.
What Is Mediation?
Mediation is an alternative to the traditional complaint-handling process. It is usually a voluntary process that allows community members and officers to sit down face to face in a neutral and confidential setting to discuss their issues in a forum facilitated by a professional mediator. Serving as a safe opportunity for dialogue, mediation allows each party to be heard and to gain a better understanding of the other’s perspective about an incident. Unlike a courtroom, in which one side prevails over the other and blame is assigned, mediation promotes mutual understanding and learning so that both parties can prevent similar situations in the future.
Mediation evolved out of a desire to look for alternatives to traditional methods of conflict resolution, in which parties approach each other as adversaries and appeal to some higher authority to resolve their dispute. The Denver Office of the Independent Monitor (OIM) offers mediation as an alternative to the traditional complaint-handling process because, when it comes to resolving complaints against the police, one size does not fit all. The OIM recognizes that not everyone who has a complaint against a police officer wants to see the officer disciplined. Some believe that taking an adversarial approach is not constructive or ultimately helpful to anyone; others simply want to understand why an officer took a particular action, to explain their own actions and perceptions, or to discuss how an incident affected them. Still others want to retain control over how the complaint is handled, rather than turning the complaint over to others for decisions and resolutions.
Mediation was developed as a way to give control over the conflict resolution process back to the parties directly involved. 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. The reasoning is that people are more likely to achieve a satisfying resolution (and possibly make peace with each other) through increased mutual understanding and cooperative problem solving than by approaching each other as enemies or seeking legal or administrative revenge for perceived wrongs.
Most police complaints are well suited for mediation. This is because most community-police conflicts are based on misunderstandings, which the DPD believes mediation can address better than discipline. Unfortunately, relatively few community-police mediation programs exist in the United States, and those that do exist traditionally handle only a small number of cases. A national study of community-police mediation programs in 2000 found that of more than 17,000 U.S. law enforcement agencies, there were only 100 oversight agencies, and just 16 of them had mediation programs. Thus, mediations accounted for a tiny fraction of complaint resolutions.1
Denver Community-Police Mediation Program
Having noted the success of a city auditor–initiated mediation program in Portland, Oregon,2 which documented increases in both complainant and police satisfaction with the complaint-handling process, the Denver OIM introduced community-police mediation in December 2005. Traditionally, the national average level of satisfaction in the United States with the complaint-handling process among both law enforcement agencies and civilians has remained extremely low. For example, in 2005, the OIM administered a survey evaluating perceptions and attitudes about the complaint-handling and disciplinary processes (before the creation of the OIM) to all police officers and community members who had filed a complaint within the previous three years. Almost three-quarters (74.5 percent) of community members reported dissatisfaction with the complaint process, and 63.5 percent of officers reported dissatisfaction. With mediation, dissatisfaction figures have plummeted to 10.7 percent and 3.7 percent, respectively. Table 1 represents comparisons between satisfaction levels with traditional complaint handling and the community-police mediation program for both process and outcome of complaint.
Benefits of Mediation
As the essence of community policing, mediation has the potential to, and often does, improve the relationship between complainants and officers one case at a time. Mediation helps prevent an unpleasant experience with one officer from resulting in a negative perception and attitude toward the officer’s agency or even the entire law enforcement community. In addition, a successful mediation can extend the repaired relationship to the community member’s family and friends, some of whom might have been adversely affected by the complainant’s personal experience.
Mediation is particularly beneficial in resolving complaints of police racial bias. Many agencies insist on conducting formal investigations of all complaints of racial bias, because they do not want to be accused of failing to address adequately such serious allegations. Investigations into such complaints, however, rarely result in sustained findings because the allegations are usually impossible to prove without a factual basis. Rather, these complaints often come about not because the officer said or did something explicitly racist but because the complainant interpreted the officer’s words, attitudes, or behavior as stemming from racist beliefs. Historically, in these cases, both parties have been dissatisfied with the resolution of these complaints. Complainants believe that the agency covered up officers’ racism in a questionable investigation, and officers are generally offended that they have been labeled as racist.
The OIM has successfully mediated several racial-bias complaints by enabling both sides to address this allegation directly with the assistance of one or two professional mediators. Beyond the direct benefits of the mediation session, this discussion can increase officer sensitivity to and community member understanding of racial issues and perceptions. Mediation allows both sides to see each other as individuals, which contributes to better relations between police and community complainants, as well as the community.
There are in fact many benefits of mediation:
- Each party has an opportunity to be heard and understood.
- Each party has the chance to hear the other’s perspective and why particular actions were taken.
- Each party can give the other feedback about how to avoid similar incidents in the future.
- Community complainants can regain confidence in police services.
- Both parties exercise direct control over the quick resolution of the complaint, rather than having it decided by others.
- The agency can resolve the complaint outside of the disciplinary process.
Putting the other party’s behavior into perspective through mediation helps both parties understand each other’s motivations and actions. This generally leads to healing, forgiveness, and closure. These learning experiences often result in smiles and handshakes by the end of the mediation session. Officers often walk away having shared valuable information about their agency’s policies and procedures and having gained knowledge that will enable them to be more effective professionals. Community members feel that they have been taken seriously. Successful mediation yields a win-win outcome in which both sides feel good about the process. Of course, this is where real change happens.
Historical Obstacles to Mediation
Professor Sam Walker of the University of Nebraska at Omaha, an expert in civilian oversight of law enforcement agencies, identifies four main obstacles to mediation:
- Police officer and police union opposition
- Lack of understanding of mediation by both officers and community members
- Lack of resources for mediation programs
- Lack of incentives to participate for officers and complainants3
A major problem for many community-police mediation programs has been opposition from police officers and the unions that represent them. This is partly because many officers, like many members of the public, do not fully understand what mediation is, how it works, and the benefits that it offers. In the course of shaping Denver’s new program, some of the more common concerns of officers were identified (see table 2).
| Another challenge to successful community-police mediation programs is the lack of incentives for officers to participate. The DPD has made mediation an alternative to the traditional complaint process. As a meaningful incentive, the department has decided that officers who choose to mediate will not be subject to internal affairs investigation or disciplinary action. After the mediation, the internal affairs case is closed. However, officers who fail to mediate in good faith may be barred from future mediation offers. (In the Seattle, Washington, mediation program, it must be determined that an officer mediated in good faith before the underlying internal affairs complaint can be dismissed.)|
To address the challenges of police resistance, the OIM engaged in significant outreach efforts to the DPD to educate officers about mediation, to address their concerns, to promote mediation as an option, and to encourage police command staff to do the same. The independent monitor visited every district station to discuss the program at roll call. The monitor also met with all Denver police organizations and unions to speak with officers about mediation. In 2006, the OIM continued its outreach efforts in person and through the aid of a training video on mediation that was presented to all officers during roll call. Thus far, 88 percent of officers given the option of mediation have accepted.
The high officer participation figure is not out of proportion with statistics in other cities. The OIM has found that officers often willingly mediate even when they believe they did nothing wrong. Their willingness is not necessarily motivated by a desire to escape discipline but rather as a service to complainants (as a tool of community policing) and as a way to clear up misunderstandings. It should be noted that the vast majority of community complaints do not result in the imposition of discipline, due to difficulty of proving the allegations. Furthermore, most community member–officer interactions are not observed by an objective witness, nor are they provable through objective evidence. Thus, many of the cases that are actually mediated would not otherwise result in the imposition of discipline against involved officers.
Another strategy to ensure the success of the mediation program and to increase police confidence in the process was the decision to contract with professional mediators. Community-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 have the skill and experience to make mediation constructive. The OIM contracted with a professional nonprofit mediation center, Community Mediation Concepts, which had previously provided a variety of mediation services for the City of Denver. A one-day training session for professional mediators was developed to provide them with the tools necessary to mediate these particularly sensitive cases.
How Cases Are Selected
Mediation is approved in cases where the OIM and the Internal Affairs Bureau (IAB) believe that it is likely to (1) result in greater complainant satisfaction, (2) result in improved officer conduct, and/or (3) contribute to improved community-police relations. The goals are to sensitize officers to community perspectives and concerns and provide opportunities for the public to learn more about police procedures and perspectives.
The OIM considers and encourages mediation in a wider range of cases than most community-police mediation programs. For example, in many jurisdictions, programs categorically exclude certain types of cases from mediation as a matter of policy. Ineligible allegations may include excessive force, racial discrimination, or disparate treatment. The OIM’s philosophy, however, is that categorical exclusion of cases means losing valuable opportunities for community members and police to better understand each other’s perspective, to explore how they might prevent similar problems in the future, and to reach a satisfying resolution.
The OIM recognizes the value in using mediation to address the issues underlying community-initiated complaints. For example, use-of-force complaints often result from a failure of communication and are usually difficult to sustain. Mediation is effective at facilitating communication; therefore, the OIM considers mediation appropriate in some use-of-force cases. Due to concerns regarding use-of-force issues, however, the DPD policy excludes use-of-force cases involving actual injury or the use of impact weapons from mediation without the consent of the chief of police, the manager of safety (who supervises the police and sheriff’s departments), and the independent monitor.
Other jurisdictions exclude from mediation any officer who has received more than a certain number of complaints in a specific time period. The reasoning is that such officers may require aggressive corrective action. It remains an open question whether discipline is more likely than mediation to result in improved officer conduct. In fact, there is evidence to suggest that mediation may be more effective. Over the next few years, the OIM will compile statistics regarding complaint patterns to establish to what extent mediation is a factor in improving officer behavior.
Some complaints, due to the serious nature of the allegations, require full investigation and possibly disciplinary action. DPD policy will not allow significant issues of misconduct or corruption to disappear into the confidential process of mediation. Cases specifically excluded from consideration for mediation are those in which the allegations, if sustained, would result in such serious disciplinary actions as dismissal, demotion, or the substantial imposition of discipline (such as a suspension of more than a few days). A case will also be excluded from mediation if it appears clear, due to the nature of the people involved, that a mediation session would not be productive.
Complaints are not eligible for mediation unless agreed upon by the OIM and the internal affairs command staff as an appropriate way to resolve them. After this determination is made, the OIM ombudsman calls complainants to discuss their options and determine if they would be willing to mediate. OIM policy requires that the ombudsman ensure that complainants understand that, if they agree to mediate, there will be no further investigation and complaints will be dismissed if officers agree to mediate and make themselves available for timely mediation, regardless of the outcome of the process.
If complainants accept the OIM’s offer to mediate, the ombudsman contacts involved officers to see if they are willing to mediate. If the involved officers agree, complaints are removed from the normal complaint process, and the DPD takes no further action in terms of investigation or discipline. If the involved officers decline to mediate, complaints are returned to the normal internal affairs process. The mediation program is voluntary. Any stakeholder (which includes complainants, involved officers, DPD command staff, or the OIM) may decline a case to be mediated for any reason.
If the parties agree to mediate, the OIM contacts the mediation contractor to assign the case to a mediator who will then follow up with the parties to schedule the earliest possible date. The mediator schedules the most convenient date, time, and location for all parties. There are multiple locations throughout the Denver area where mediations can be conducted, including the OIM, libraries, and City Council offices. Mediations are regularly scheduled in the evenings and on weekends for added convenience. Because the OIM’s objective is to handle complaints in a fair, respectful, and timely manner, it aims to have mediation completed within a few weeks of a complainant’s agreement to mediate. From beginning to end, the median number of days OIM mediation cases have remained open is 30 (as of December 31, 2007). This timeliness is key for two reasons. First, having fresh memories of an incident engenders more constructive dialogue. Second, the quick resolution adds to both parties’ satisfaction with the process.
To improve the likelihood of a successful mediation, the OIM provides information on the process so both parties know what to expect. Complainants and officers are provided a mediation brochure once they agree to mediate. Besides explaining the process, the brochure also lists suggestions for mediating constructively.
Additionally, the OIM furnishes a summary of the incident and allegations to the mediator before the mediation as background information about the dispute. The mediator can get additional information, if necessary, while contacting complainants and officers to schedule the session. A final confirmation notice is sent to all parties of the time, date, and location of the mediation. Before the session begins, the parties are required to sign a form providing consent to mediate, which includes a confidentiality agreement for their signature. Finally, the mediator establishes the ground rules before the session begins, so expectations are clear.
What Happens during Mediation?
At the beginning of mediation sessions, mediators introduce themselves and explain the process and ground rules (confidentiality, courtesy, and mutual respect). Complainants are then invited to describe their views of the incident. Officers also present their perspectives. From that point, dialogue begins, with mediators guiding participants along a constructive path and keeping everyone focused on the matters at hand. If the conversation becomes too tense, mediators may decide to meet separately with participants in a brief caucus. The process continues until both parties feel they have resolved the issue to their satisfaction. Most mediation sessions last 60–90 minutes. Officers generally mediate while on duty and in uniform.
On completion of the mediation, complainants, officers, and mediators are given exit surveys to permit effective evaluation of the mediation program. At that point, complaints are dismissed.
Continuous Quality Control
The OIM has implemented several mechanisms to ensure that the mediation program continues to provide satisfactory outcomes for both community members and officers. First, OIM staff members observed mediations regularly for the first nine months of the program to ensure that mediators met high expectations and that cases selected for mediation were appropriate. The OIM staff will continue to observe mediations on a periodic basis, particularly when new mediators are used or when the case involves unusual circumstances. Second, the OIM asks all participants and mediators to fill out surveys to evaluate the program to remove any ineffective elements. Finally, the OIM meets on a monthly basis with the internal affairs board and the mediation team to discuss which aspects of the program can be improved, how to best expand the program, and any other relevant issues.
Mediation across the United States
The OIM contacted civilian oversight programs across the United States to gather information about their mediation programs. The staff identified seven agencies currently operating community-police mediation programs that mediated 10 or more cases in 2007 (see table 3).
The benefits of a community-police mediation program so vastly outweigh the costs that every metropolitan police department should offer it as a service to its community and its own officers. Aside from the positive consequences inherent with this brand of conflict resolution, mediation serves to address effectively and efficiently challenges unique to public safety departments: the timeliness with which complaints are handled, the ability to resolve complaints in a satisfactory manner for all sides, the ability to convert complaints into opportunities to improve police-community relations, and the ability to identify a workable and sustainable system for handling allegations of racial bias. ■
1See Samuel Walker, Carol Archbold, and Leigh Herbst, Mediating Citizen Complaints against Police Officers: A Guide for Police and Community Leaders (Washington, D.C.: U.S. Department of Justice, Office of Community Oriented Policing Services, 2002), http://www.cops.usdoj.gov/ric/ResourceDetail.aspx?RID=134 (accessed June 10, 2008).
2See Independent Police Review Division, Office of the City Auditor [Portland, Oregon], Annual Report, 2004, http://www.portlandonline.com/shared/cfm/image.cfm?id=83579 (accessed June 26, 2008).
3Walker et al., Mediating Citizen Complaints against Police Officers.
From The Police Chief, vol. LXXV, no. 8, August 2008. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.