TITLE 11

Crimes and Criminal Procedure

Special Programs

CHAPTER 95. VICTIM-OFFENDER MEDIATION


(a) The General Assembly finds and declares that:

(1) The resolution of felony, misdemeanor and juvenile delinquent disputes can be costly and complex in a judicial setting where the parties involved are necessarily in an adversary posture and subject to formalized procedures; and

(2) Victim-offender mediation programs can meet the needs of Delaware's citizens by providing forums in which persons may voluntarily participate in the resolution of certain criminal offenses in an informal and less adversarial atmosphere.

(b) It is the intent of the General Assembly that each program established pursuant to this chapter:

(1) Stimulate the establishment and use of victim-offender mediation programs to help meet the need for alternatives to the courts for the resolution of certain criminal offenses, whether before or after adjudication;

(2) Encourage continuing community participation in the development, administration and oversight of local victim-offender mediation programs;

(3) Offer structures for victim-offender mediation which may serve as models for programs in other communities; and

(4) Serve a specific community or locale and resolve certain criminal offenses that arise within that community or locale.

70 Del. Laws, c. 444, § 1.;

(a) There is hereby established a Victim-Offender Mediation Committee to be composed of the Attorney General, Public Defender, Chief Magistrate, Chair of the Criminal Justice Council, State Court Administrator and the Chief Judge of Family Court or their designees to administer this chapter. No funds shall be awarded or program approved without the approval of the Victim-Offender Mediation Committee.

(b) To be eligible for state funds, a program must do the following:

(1) Be operated by a 501(c)(3) [26 U.S.C. § 501(c)(3)] organization in Delaware;

(2) Provide neutral mediators who have received training in conflict resolution techniques;

(3) Comply with this chapter and the rules adopted by the Victim-Offender Mediation Committee;

(4) Provide victim-offender mediation in felony, misdemeanor and juvenile delinquency cases without cost to the participants; and

(5) At the conclusion of the mediation process provide a written agreement or decision to the referral source setting forth the settlement of the issues and future responsibilities of each participant.

(c) Each program that receives funds under this chapter must be operated under a contract with the Victim-Offender Mediation Committee and must comply with this chapter.

(d) An organization applying to the Victim-Offender Mediation Committee for funding is to include the following information in its application:

(1) Cost of operating the victim-offender mediation program, including the compensation of employees;

(2) Description of the proposed area of service and number of participants expected to be served;

(3) Proof of nonprofit status; and

(4) Charter of incorporation.

(e) The Chair of the Victim-Offender Mediation Committee or the Chair's designee may inspect, examine and audit the fiscal affairs of victim-offender mediation programs.

(f) A program operated under this chapter is not a state agency or an instrumentality of the State. Employees and volunteers of a program are not employees of the State.

(g) A program that receives funds from the Victim-Offender Mediation Committee under this chapter must annually provide the Victim-Offender Mediation Committee with statistical data regarding the following:

(1) The operating budget;

(2) The number of case referrals, categories, or types of cases referred;

(3) The number of parties serviced;

(4) The number of cases resolved;

(5) The nature of the resolution, amount, and type of restitution to the victim and/or community;

(6) The rate of compliance;

(7) The length of total case processing time by the victim-offender mediation program;

(8) Community service hours agreed to, if applicable; and

(9) Community service hours completed, if applicable.

The data shall maintain the confidentiality and anonymity of all mediation participants.

70 Del. Laws, c. 444, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 190, § 3.;

All memoranda, work notes or products, or case files or programs established under this chapter are confidential and privileged and are not subject to disclosure in any judicial or administrative proceeding unless the court or administrative tribunal determines that the materials were submitted by a participant to the program for the purpose of avoiding discovery of the material in a subsequent proceeding. Any communication relating to the subject matter of the resolution made during the mediation process by any participant, mediator or any other person is a privileged communication and is not subject to disclosure in any judicial or administrative proceeding unless all parties to the communication waive the privilege. The foregoing privilege and limitation of evidentiary use does not apply to any communication of a threat that injury or damage may be inflicted on any person or on the property of a party to the dispute, to the extent the communication may be relevant evidence in a criminal matter. Nothing in this section shall prevent the Victim-Offender Mediation Committee from obtaining access to any information it deems necessary to administer this chapter.

70 Del. Laws, c. 444, § 1.;

No offender shall be admitted to the program unless the Attorney General certifies that the offender is appropriate to the program, regardless of any criteria established under any program or this chapter.

Any person who voluntarily enters a mediation process at a victim-offender mediation program established under this chapter may revoke that person's consent, withdraw from mediation and seek judicial or administrative redress prior to reaching a written agreement. No legal penalty, sanction or restraint may be imposed upon the person for such withdrawal.

70 Del. Laws, c. 444, § 1; 70 Del. Laws, c. 186, § 1.;

(a) Members of the Victim-Offender Mediation Committee or board of directors of an organization with a victim-offender mediation program are immune from suit in any civil action based upon any proceedings or other official acts performed in good faith as members of the board.

(b) State employees and employees and volunteers of a victim-offender mediation program are immune from suit in any civil action based on any proceedings or other official act performed in their capacity as employees or volunteers, except in cases of wilful or wanton misconduct.

(c) A victim-offender mediation program is immune from suit in any civil action based on any of its proceedings or other official acts performed by its employees, volunteers or members of its board of directors, except (1) in cases of wilful or wanton misconduct by its employees or volunteers, and (2) in cases of official acts performed in bad faith by members of its board.

70 Del. Laws, c. 444, § 1.;