Weinstein Law Blog

Friday, September 16, 2016


In New York City, especially within Brooklyn, there is a mediation program within the lower Criminal Courts.  This mediation program is extrajudicial, meaning it is not under the control of the court.  Rather, the District Attorney’s Office recommends, as an offer, that the Complainant and the Defendant engage in mediation and then refer the case for mediation.  The outcome of the mediation is generally accepted by the DA’s Office as incorporated into the offer for the Defendant.  Mediation is considered a consent adjournment for purposed of calculating statutory speedy trial time.

How Does Criminal Mediation Work?

               As this is extrajudicial and voluntary, this mediation is secret.  The DA’s Office does not attend and is unaware of what occurs during the mediation.  Moreover, the Defendant’s lawyer also does not go.  The only two parties at the mediation are the Complainant and the Defendant.

              Generally, the first mediation session will be with the Complainant and the second session with the Defendant.  The third session will place both people in a room together.  At that session a mediator will go over the ancillary issues that brought these two people to come into contact with the Criminal Justice System.  There may be additional sessions as well.  If successful, at the end of mediation, the parties will sign a non-binding agreement and a recommendation will be made to the DA’s Office regarding the if the case should be dismissed or Adjourned in Contemplation of Dismissal (“ACD”).  If the mediation is unsuccessful, the case goes back on track in Criminal Court.

What Kinds of Cases Are Mediated in Criminal Court?

              While you need willing participants on all sides, the most common type of cases is where family is involved.  Moreover, generally only misdemeanor cases are referred to mediation.  In these matters, the interest is to prevent further involvement of the Criminal Justice System while attempting to work out the core issues that brought the family members to be there in the first place.

Should I Take Mediation?

              Although it sounds pretty good, there are many shortfalls to mediation.  The first and foremost is time.  It may take up to three months before the first session of mediation even occurs.  As such, a defendant’s speedy trial time is being waived during that period.  Additionally, there is generally a full stay away order of protection in effect during this period between the Defendant and the Complainant.  This prevents any actual interaction and may be used by the Complainant as a sword instead of a shield against the Defendant. 

              Before you take a mediation offer, it is important that you have an attorney who understand all the possible consequences of the offer.  You need a lawyer who will advocate for your best interest and not take the easy way out.


              Contact the Law Office of Jacob Z. Weinstein, PLLC for an experienced criminal defense attorney.  

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As a former prosecutor, I fully understand the power law enforcement has. As a trial attorney, I know the law seems very scary.