Expanding the Role of Mediation in Criminal Cases: Kansas Moves Forward

Mediation has long been a staple of civil litigation, valued for its efficiency, flexibility, and capacity to foster resolution without the expense and unpredictability of trial. But a growing number of jurisdictions are now asking whether its benefits could also be applied within the criminal justice system. With the announcement of a new advisory group, the Supreme Court of Kansas is joining a broader national conversation about how—and when—criminal mediation might serve as a viable alternative in appropriate cases.

The Kansas advisory group has been tasked with reviewing national best practices, analyzing existing criminal mediation programs, and studying applicable rules in other jurisdictions. The goal is to develop a formal, systematized framework that could help expedite certain criminal matters and reduce the case load burden on criminal courts—while maintaining the fairness, integrity, and constitutional safeguards inherent to the criminal process.

This is not a completely new concept in Kansas. Informal criminal mediation efforts have reportedly taken place for more than a decade. But the formation of a high-level advisory group signals a new chapter: one where criminal mediation may become a structured and predictable part of the justice system.

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What Is Criminal Mediation?

Criminal mediation refers to a facilitated, voluntary process where parties in a criminal case—typically the prosecutor and defendant, and sometimes the victim—meet with a neutral third party to discuss potential resolution of the matter. It is not a replacement for trial or plea negotiations, but a structured opportunity to:

• Explore non-trial resolutions

• Address restitution or accountability

• Facilitate victim participation (where appropriate)

• Reach agreements on sentencing or diversion alternatives

Criminal mediation may be especially useful in cases involving:

• First-time offenders

• Non-violent offenses

• Juvenile matters

• Mental health or addiction-related issues

• Victim-offender reconciliation

While not appropriate in every case, mediation can offer a flexible tool for resolving cases that do not fit neatly into traditional plea bargaining structures.

The Kansas Initiative: Formalizing a Growing Practice

The Kansas Supreme Court’s announcement reflects a larger effort to shift criminal mediation from an informal tool used in pockets of the state into a standardized, rule-based practice. The newly formed advisory group is expected to:

• Survey criminal mediation practices across other states

• Examine due process implications and best practices

• Draft proposed rules or protocols

• Recommend pilot programs or court partnerships

The Kansas courts are not alone in exploring this path. Jurisdictions in states like Texas, Ohio, Colorado, and New York have all experimented with criminal mediation in various forms. Some have implemented restorative justice frameworks, while others have developed docket-specific mediation programs to handle lower-level cases more efficiently.

Kansas appears poised to draw from this collective experience in crafting a system that suits its own legal culture and constitutional requirements.

Benefits of Criminal Mediation

Proponents of criminal mediation point to a number of potential benefits, including:

1. Efficiency and Case Management

With criminal dockets often overwhelmed, mediation can streamline non-violent or low-risk cases, preserving judicial resources for the most serious matters.

2. Victim Engagement and Empowerment

In appropriate cases, mediation can give victims a voice and offer closure—sometimes in ways the traditional process cannot. Victim-offender dialogue may foster accountability and healing, particularly in community-based crimes.

3. Personalized Outcomes

Mediation allows parties to develop creative, case-specific outcomes: community service, restitution, treatment programs, or deferred prosecution agreements that might not arise from standard plea negotiations.

4. Reduction of Recidivism

When mediation addresses the root causes of criminal behavior—substance abuse, mental health, or interpersonal conflict—it can lead to better outcomes and lower rates of reoffending.

5. Preserving Court Resources

Judges and prosecutors benefit from reduced workloads, enabling them to focus on high-stakes trials or complex prosecutions.

Challenges and Limitations

Despite its promise, criminal mediation raises unique legal and ethical considerations. These include:

1. Due Process and Voluntariness

Participants in criminal mediation must do so voluntarily and with full understanding of their rights. Coercion—direct or indirect—can undermine the process and invite later challenge.

2. Confidentiality and Admissibility

Clear rules must be established around what is said in mediation and whether it can later be used in court. Most models adopt strong confidentiality protections, but implementation varies.

3. Victim Participation and Safety

Mediators must be trained to assess whether victim participation is appropriate, and safeguards must be in place to prevent retraumatization or manipulation.

4. Appropriateness of Case Types

Violent crimes, domestic abuse cases, and others involving significant power imbalances are typically excluded from mediation programs. Clear screening criteria are essential.

5. Training and Program Structure

Criminal mediation requires specialized training, including knowledge of trauma, criminal procedure, and power dynamics. Judges, prosecutors, and defense attorneys must also be educated on when and how to use the process appropriately.

A Growing National Trend

Kansas is not alone in recognizing the need for alternatives within the criminal justice system. Across the country:

• Colorado has integrated restorative justice conferencing into juvenile courts.

• Texas courts have used mediation in misdemeanor cases and victim-offender dialogue in post-conviction settings.

• California and New York have experimented with restorative circles and community mediation centers.

These programs vary in structure and success, but they reflect a shared understanding that traditional trial-based systems may not always serve the best interests of justice—particularly in lower-level or community-oriented offenses.

Looking Ahead: What Comes Next in Kansas

The Kansas advisory group’s findings could result in proposed statewide rules, pilot programs in select jurisdictions, or a phased rollout of court-connected mediation options. If successful, the model could serve as a template for other states considering similar reforms.

Practitioners—particularly prosecutors, defense attorneys, and court administrators—will need to monitor developments closely. Training, case selection criteria, and procedural safeguards will all play a role in ensuring that mediation supplements, rather than undermines, the integrity of the criminal process.

Unlocking Solutions Beyond the Civil Realm

Mediation has proven itself in civil disputes, employment cases, consumer conflicts, and commercial litigation. The extension of its core principles into the criminal context reflects an evolving view of justice—one that values resolution, restoration, and accountability alongside punishment.

At Nationwide ADR, mediation services are rooted in empathy, neutrality, and procedural integrity. With experience across complex civil matters and a growing awareness of the evolving role of ADR in the public sector, Nationwide ADR is well-positioned to support jurisdictions and counsel exploring alternative resolution models.

Whether through mediation, early dispute resolution, or evaluation of policy shifts, the firm is committed to Unlocking Solutions for Demanding Cases.

To learn more about ADR in both traditional and emerging contexts, visit NationwideADR.com.