Pre-Suit Mediation of Civilian Complaints Against Police

A handful of local governments across the country are experimenting with a new way to resolve citizen complaints about police misconduct. Police-citizen mediation allows complainants to speak face-to-face with the officer who is the subject of the complaint. The goal is to resolve the issue through mediation before a formal 42 U.S.C. § 1983 lawsuit is filed. So far, there are about 16 police-citizen complaint programs in the United States. Samuel Walker and Carol Archbold, Mediating Citizen Complaints Against the Police: An Exploration Study, 2000 J. Disp. Resol. 231, 236 (2000).

The typical police-complaint mediation program starts with a preliminary investigation to determine whether the complaint is eligible for mediation. Teams are trained to determine whether the complaint is best suited for mediation or will require a full investigation. Raymond W. Patterson, Resolving Civilian-Police Complaints in New York City: Reflections on Mediation in the Real World, 22 Ohio St. J. on Disp. Resol. 189, 194–95 (2006).

Investigators are trained to use incentives for civilians and officers to choose the option of mediation. For example, an incentive for officers choosing mediation is that the officer will not suffer employment consequences if the complaint is substantiated. Civilians are informed of their likelihood of success through mediation as opposed to the likelihood that their cases would not even make it to trial.

Similarly, an incentive for both officers and complainants to choose mediation is that the process can be quicker than a full investigation. Mediation can be successfully completed within a few months. Coming Together to Resolve Police Misconduct: the Emergence of Mediation as a New Solution, 21 Ohio St. J. on Disp. Resol. 447, 471 (2006).

Mediation focuses on honesty, reconciliation, transformation, and understanding. At its best, both citizens and officers may leave the mediation feeling a sense of empowerment and recognition. Lou Furman and Alison R. McCreary, Building Trust in Law Enforcement: Community-Police Mediation in New Orleans, 63 La. B.J. 192, 193 (2015).

While police/citizen complaint mediation has potential as a form of alternate dispute resolution and a way to combat misunderstandings between officers and citizens, the practice is new and not yet widely used. It bears watching.

Keywords: litigation, civil rights, 1983, police, mediation, citizen complaint, alternative dispute resolution

— Taylor Ruggieri, Rutgers Law School Class of 2017

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