Good Idea, Poor Execution: Why Tennessee’s Criminal Courts Are Ready for MediationIn June 2021, Knox News launched an investigation into “mediation” practices in the Eighth Judicial District in Tennessee. The investigation turned up some very troubling information regarding one specific judge, who claimed that he was engaging in mediation with defendants to reduce backlog of criminal cases that had built up during the pandemic.

Per Knox News’ report:

Eighth Judicial District Judge John McAfee has turned what was supposed to be a pretrial settlement conference into a never-before-tried and never-before-tested “mediation” of criminal cases in Tennessee with no formal plan, no rules, no case information and no record of the proceedings….

As part of his process, McAfee separates the accused from their attorney, directly questions defendants about personal topics unrelated to the case, doles out advice, repeatedly warns the accused of the peril of seeking a trial and sometimes even vouches for the fairness of the prosecution’s plea offer.

McAfee readily admitted and then defended his actions – “seating the accused directly in front of him, talking to the accused directly and waving off defense objections, telling the accused the odds are stacked against them and failing to document anything said at the hearings” – to Knox News.

Other judges in the Eight District were unaware that this is how McAfee was handling these conferences; one judge went so far as to say she was “dumbfounded.”

For the record, this is not how mediation works – but mediating criminal cases is not a bad idea overall, especially for misdemeanors, first-time offenses, and even traffic tickets.

How would criminal defense mediation work?

Generally speaking, mediation involves two parties, their legal representation, and a third, neutral party – the mediator – who helps negotiate a settlement between them all. In a personal injury setting, for example, it’s usually the lawyers for the injured victim and the insurance company trying to reach a settlement award.

In a criminal defense setting, the mediation would likely work a bit like a pretrial conference: the defense lawyer and the prosecution would meet with a judge, who has reviewed the case files, and attempt to “settle” the case, either through some kind of diversion or recovery programs.

In some cases, criminal mediation may even be able to bypass a judge altogether; other states have implemented criminal mediation programs that do just that. In North Carolina, for example, low-level criminal charges and juvenile charges can go through court-ordered mediation to reach a resolution. This frees up the court’s docket to handle more serious charges, while allowing first-time and youthful offenders to avoid a criminal record, jail time, and (potential) exorbitant fines. In Maryland, cases may be referred to mediation if “there is an ongoing relationship between the participants which lead to the alleged crime and the [State’s Attorney’s Office] SAO believes that these underlying issues could be better resolved in mediation rather than through the standard court process.” As you can see, criminal mediation is hardly a new idea, and based on reports from different states, it’s largely successful.

What is important to note is that criminal defense mediation, no matter what form it takes, would likely be unacceptable for most felony crimes (though the Vera Institute of Justice in New York reports good outcomes using mediation even in felony cases). It is hard to imagine any prosecutor or judge in Tennessee agreeing to mediate a homicide or an aggravated assault. But misdemeanor charges like shoplifting or even destruction of property (think graffiti, not arson) could be handled through mediation.

How is criminal defense mediation different from a plea bargain?

On the surface, defense mediation sounds a lot like a plea deal, but the end result is much different. In true mediation, the neutral mediator would facilitate an outcome that works for both parties, while potentially helping the defendant avoid a criminal record. In a plea deal, the defendant agrees to plead guilty to a lesser crime – one that usually carries a shorter sentence with lesser fines.

Is there any way to avoid a criminal trial in Tennessee?

The criminal justice system does offer some alternatives to a trial. Defendants can take a plea deal if they are offered one, which allows them to skip a trial. Some defendants may be eligible for pretrial or judicial diversion, too. Pretrial diversion is offered by the prosecution, and allows a defendant to avoid being charged provided certain conditions are met, and the defendant follows certain steps. If all goes according to plan, the charges are dropped completely.

A judicial diversion is different. Here, a defendant pleads guilty or nolo contendere (“no contest”) to the charges, but the sentencing is deferred until the defendant completes a probationary period. If the defendant does all that is asked of him or her, then he or she can seek to expunge his or her record. If the defendant fails to complete the probationary period, then he or she will be sentenced, and no expungement is possible.

At Delius & McKenzie, PLLC, our Sevierville criminal defense lawyers do whatever is in our power to protect our clients’ futures. To learn more about our services, please call (865) 428-8780 or complete our contact form immediately. We fight for the accused in Sevierville, Seymour, Gatlinburg, Pigeon Forge, and the neighboring Tennessee areas.