From restorative justice to restorative action: towards a new social order

Workshop presented to Sixth Conference of the European Forum for Restorative Justice, ‘Doing restorative justice in Europe: established practices and innovative programmes’, 17-19 June 2010, Bilbao, Spain.

 Outline

R J beginnings

Distinguishing features of R J

Restorative questions

apply to criminal and civil cases

Four ways in which R J is different from criminal justice and conventional authority structures:

Principles

Process

Psychology

Communication

Example of extending R P :schools, communities, cities

Conclusions

R J Beginnings

Originally, the application of restorative justice was limited: it was a reaction to criminal wrongdoing. The Elmira story

Family Group Conferences: 1989-

New Zealand (private time)

IIRP (script – & refreshments!) (Wachtel 1997)

 

(DEFINITIONS of terms: ‘mediation/restorative process/conferencing meediator/facilitator – synonymous

Punishment: intentional infliction of pain or inconvenience. Measures or sanctions – intended to rehabilitate or require reparation. Deprivation of liberty for protection of public, enforcement of reparative measures, not as punishment.

Two recent stories:

Racist behaviour by young people

Will Riley and Peter Woolf (Woolf 2008)

Distinguishing features of R J

reparation

discuss reparation with victims

‘earned redemption’, reintegration

non-punitive

offenders feel empathy for victim

offenders often experience empathy from victim

community-based (professionals – theft of the conflict?)

 

Restorative questions

Not

  • What crime has been committed?,
  • Who committed it?
  • How should they be punished?

but

  • What happened?
  • What were you thinking and feeling at the time?
  • Who has been affected by what happened?
  • What is needed for the harm to be repaired, so you can move forward?
  • What needs to happen now? (if appropriate: and what can you do?)

Now it has broadened into the wider concept of restorative practices, which also operate in a preventive way. Some people (including the Restorative Justice Council in England) use ‘restorative justice’ to include restorative approaches in other contexts.

decision-making

Restorative processes need not wait until there has been a conflict; they can be used as a decision-making process, which may avoid the conflict

response to conflict

They can be used to resolve a dispute. Emphasis on how they will act and communicate in future

response to harm

When harm has been caused, the process can be used to agree how best to put it right

response to criminal harm

When the harm has been caused by a criminal act, they can be used

instead of criminal procedure,

as part of criminal procedure

after criminal procedure

 

A definition:

Restorative justice is a process in which those most involved in a problem come together, with the help of mediators, to find their own answers, respecting each other’s needs and as far as possible resolving how to repair any harm caused. 

 

Four ways in which R J is different

It can be thought of in four ways: as principles, as a process, as a psychological approach, and as communication.

Parallel effects: crime/punishment, harm/reparation

authority/hierarchy, equal respect

Compare & contrast core principles that make a good lawyer/mediator

 

(a) Principles or values

Fair trial, equal punishment

Proportionate punishment

Respect for the law

Innocent till proved guilty

No punishment without law

Compulsion

Symbolize seriousness of offence

Mutual respect,

Acknowledgement that everyone has a right to their feelings, and to their point of view,

Awareness of shared responsibility for the mediation session (Hopkins 2004: 136).

Consent

It is striking that authors who are also practitioners agree that punishment is not an effective tool for teaching (Faber and Mazlish 1980, Hopkins 2004, Claassen and Claassen 2008). Punishment is the enemy of truth, and makes it harder for people to accept responsibility for the harm they have caused.

 

(b) Process

compare & contrastaims of legal/mediation process, and likely effects on participants

equality of arms’

right to defence lawyer to speak for accused

rules of evidence

commands

public hearing

structure: state

discussion

speak for oneself

confidentiality

structure: community-based NGO?.

The basic process often involves asking participants to sit in a circle. this recognises that everyone has an equal right to contribute, and it can often be agreed that everyone speaks in turn. At least one organization, the Roca project for young people in a deprived area of Boston, MA, uses circles throughout its work (Boyes-Watson 2008). The circle can be used to agree the ground rules, and then to apply them.

It can be incorporated in a more structured process, as applied for example ‘Discipline that restores’ in a school: the teacher remains in charge of the framework of the student-teacher relationship, but respects the student by offering choices at every stage. Attempts to control through punishment can make matters worse; DTR offers two tools. Both of them are explained to each new class at the beginning of the school year; the students are invited to agree their own ground rules and set their own targets for the year. One tool is the ‘Four Options’ model, which identifies four basic ways in which a conflict can be handled:

  1. I impose on you,
  2. we go to an arbitrator,
  3. we go to a mediator,
  4. we agree between ourselves.

When an issue arises, a student is invited to choose which method to use; usually they choose #3 or #4.

The second tool is a ‘flowchart’ of increasingly serious but non-punitive interventions, including a ‘constructive reminder’ of the ground rules, the ‘four options’, a family conference, and ultimately the school authority structure. For uncooperative students there may be a spell in the ‘thinkery’ – not a punishment but a place where another teacher helps the student to think through what happened, who was affected, and a plan for working together. The method could be adapted to other organizations.

The other aspect of the process of delivering restorative practices is the administrative structure. Those who advocate the greatest possible community participation would like to see in each country a network of independent NGOs, affiliated to a national NGO which would require them to maintain standards. There are some NGOs like this in England, but they are not by any means nationwide, and most of them are limited to community mediation. In Norway, mediators have to be volunteers; management is by local municipalities, supervised by a national government body. In Germany there are a few independent NGOs and a national one, but little or no use is made of volunteers.

 

(c) Psychology

The process is supposed to influence behaviour. What are the likely psychological effects of a legal, managerial, authoritarian system of control, and a restorative one?

Fear

Stigma

anger

looking for excuses

defensive, reveal as little as possible blame others

sorry to have been caught

retaliation against system or witnesses or victim

feeling subordinate

 

sorry to have caused harm

empathy for victim

empathy from victim

accept responsibility

opportunity to make reparation, new start

feeling valued

It could be argued that the essence is that restorative justice works on a different psychological paradigm. The punishment/deterrence one is based on making people afraid of what will be done to themselves if they do wrong, whereas the restorative one is based on encouraging them to feel for the other person, whom they have harmed, which often leads to the other person feeling for them. And isn’t that what empathy is? Should it therefore have a place in our definition?

The other aspect is harder to put into a single word: something on the lines of encouraging the person’s feeling of self-worth; but I think that underneath this is something which I haven’t seen expressed, namely that the enhanced self-worth comes precisely from the fact that he or she is feeling empathy for someone else, which he didn’t realize he was capable of. What I have seen is that it is quite common for the victim (if I can use that word as shorthand) to show empathy for the offender, and in some cases this can be how the offender learns what empathy is, never having experienced it much in his life. Peter Woolf (2008) describes it.

 

(d) Communication

What is the style of communication in court, in a hierarchical organizatiion, or in mediation? 

What effects is it likely to have

What is the style of communication

Interrogation

accusation

trying to damage credibility

truthfulness doubted

encourage defensiveness

 

opportunity to be heard

assumption of truthtelling

encourage openness

 

The fourth aspect of restorative justice is communication. There are basic skills which mediators learn, such as active listening, re-phrasing in neutral language, separating the person from the act, and so on. the idea is taken further in Marshall Rosenberg’s ‘Non-violent communication’. On the basis of experience as a clinical psychologist, he proposes ways to maintain good relationships, or to rescue those which have run into difficulties. His approach could be described as inviting another person to feel empathy by showing empathy to them. You identify your own feelings, and express them, and show the other person that you are trying to sense their feelings. You also express your needs which give rise to those feelings, and try to show that you recognise their needs too. You don’t describe the other person, because this can be judgemental, but you describe their action, in neutral language, and then make a request that would meet your needs. For example, instead of saying ‘You are annoying when you drum your fingers on the table’, you might say ‘I feel annoyed when you drum your fingers on the table, because I need to finish this article, so would you please not do it while I am working?’

The methods used closely parallel those devised independently by Marshall Rosenberg (1999). He analyses personal interactions into four elements:

  • Observing without evaluating (judging)
  • Identifying and expressing feelings
  • Taking responsibility for our feelings
    • Blaming ourselves
    • Blaming others
    • Sensing our own feelings and needs
    • Sensing others’ feelings and needs
  • Requesting that which would enrich life

Rosenberg suggests that making demands with the threat of punishment is ‘life-alienating’, while making requests is ;life-enriching’. Teachers in schools, for example, are finding that they get better discipline when they recognise the needs of their students, and make the students aware of their own needs, instead of threatening punishment. The word ‘restorative’ is increasingly being used to describe this approach to relationships.

Language is important. One method used by mediators is reframing violent statements in neutral language.

A striking example given by Rosenberg (2005: 121-5) concerns a conflict between Christian chiefs and Muslim chiefs in northern Nigeria. One hundred of the four hundred people in the community had been killed, and three of the people who were eventually persuaded to meet knew that someone who killed their child would be in the room. Rosenberg began by asking those on each side to express their needs. One of the Christian chiefs shouted at the Muslims: ‘You people are murderers!’ Rosenberg asked, ‘Chief, are you expressing a need for safety that isn’t being met? You would hope that things could be resolved with non-violence, correct?’ He said, ‘That’s exactly what I’m saying.’

Rosenberg asked if a member of the other tribe would repeat what the chief from the first tribe had said, to make sure he had heard. One of them screamed, ‘Why did you kill my son?’ Rosenberg repeated his summary of what the first chief was feeling and needing; eventually the chief was able to do so.

Then he asked the other chiefs what were their needs. One of them said ‘They have been trying to dominate us for a long time, and we’re not going to put up with it any more.’ Rosenberg again summarized: are you upset because you have a strong need for equality in this community?’ ‘Yes.’

After about an hour of shouting, each side had heard just one need of the other, when one chief exclaimed, ‘Marshall, we can’t learn this in one day. And if we know how to talk to each other, we don’t have to kill each other.’ Several of them volunteered to be trained.

Rosenberg (1999, 2005)

 Restorative schools

Circles are another: the Roca program in a run-down part of Boston, MA, uses circles for youth development, empowerment, accountability, healing, and for managing the system. (Boyes-Watson 2008)

In the school context, this has been formalized by Ron and Roxanne Claassen (2008) in Fresno, California, as ‘Discipline that restores.’

This begins with students and teacher agreeing on the process. Then if there is a pupil-teacher conflict, the following 8 stages follow as agreed. At each stage, if the matter is resolved, this is celebrated; stages may be omitted if the matter is too serious of the student too uncooperative or defiant. The stages include:

  • Usual constructive reminder of agreed rules
  • Formal reminder of agreement
  • Active-listening and/or I-message
  • Four Options model
    • one party decides
    • external arbiter decides
    • both parties decide with external mediator
    • both parties decide together
  • Student-teacher meeting
  • Thinkery’ (reflection with another staff member) (Rosenberg 1999: 125 : ‘Do-nothing room’, with teacher who has best mastered NVC, to protect the rights of students who want to learn)
  • Family conference
  • School authority structure

Claassen, R and Claassen, R (2008)

 

Hopkins (2009) takes this further and proposes how restorative approaches could be integrated into the residential system for looking after children, through a restorative mindset, dialogue, conferencing, circles and a multi-agency approach. :

 

Restorative communities

Where restorative methods are widely practised, we may hope to see the development of restorative communities, where people will routinely have the opportunity to agree together (Wright 2010), The essence of it is a different way of relating to each other, especially in a situation where traditionally one party exercises power over the other: schools, families, workplaces and so on.

People in the restorative movement believe that everyone should have access to restorative practices and restorative justice. Restorative practices have the potential to build social capital, strengthen relationships and communities, especially when they are put into practice by NGOs and volunteer mediators.

Collingwood Primary School. 2004 ‘needing special measures’. 2007-2008

Fewer classroom exclusions 98.3%

Fewer lunchtime red cards 77.8%

Fewer racist incidents 75.0%

Punctuality improvement 86.7%

Riverside Project: 3500 staff trained at 12 primary and 2 secondary schools, children’s homes, family resource centres, police, volunteers, etc. (Mirsky, L 2009) All Children and Young People’s Services being trained. Hull becoming ‘the world’s first restorative city’

(Restorative justice across disciplines’, IIRP conference, Hull, 13-15 October 2010 www.iirp.org/uk )

These principles are underpinned by a need for respect, consideration, co-operation, support and belonging which Marshall Rosenberg (1999) would identify as the key to universal human values.

It has been suggested that it should include community-building and feed-back on crime prevention to social policy-

 

Conclusion

Originally, the application of restorative justice was limited: it was a reaction to criminal wrongdoing. Now it has broadened into the wider concept of restorative practices, which also operate in a preventive way. Where these are widely practised, we may hope to see the development of restorative communities, where people will routinely have the opportunity to agree together. The essence of it is a different way of relating to each other, especially in a situation where traditionally one party exercises power over the other: schools, families, workplaces and so on. Everyone should have access to restorative practices and restorative justice. Restorative practices have the potential to build social capital, strengthen relationships and communities, especially when they are put into practice by NGOs and volunteer mediators: In Norway, for example, the law requires that mediators be volunteers. These principles are underpinned by a need for respect, consideration, co-operation, support and belonging which Marshall Rosenberg (1999) would identify as the key to universal human values. As we have seen, it has been suggested that it should include community-building, and an unusual but necessary feature of social policy: namely, feed-back to social policy-makers.

In the last two or three decades we have learnt the importance of living in harmony with the planet; now it is vital to learn to live in harmony with each other, and restorative processes can show us the way.

REFERENCES

Boyes-Watson, C.( 2008).Peacemaking circles & urban youth: bringing justice home. St Paul, MN: Living Justice Press.

Christie, N (1977) ‘Conflicts as property’. British Journal of Criminology 17(1), 1-15.

Claassen, R and R (2008) Discipline that restores: strategies to create respect, cooperation, and responsibility in the classroom, South Carolina: BookSurge Publishing. (www.disciplinethatrestores.org )

Faber, A and E Mazlish (1980) How to talk so kids will listen and listen so kids will talk. New York: Avon Books.

Hopkins, B (2004) Just schools: a whole school approach to restorative justice. London and Philadelphia: Jessica Kingsley Publishers,.

Hopkins, B (2009) Just Care: restorative justice approaches to working with children in public care. London: Jessica Kingsley.

Mirsky, L (2009) ‘Hull, UK: toward a restorative city.’ http://www.safersanerschools.org/library/hull09.html (accessed 28.1.2010)

Rosenberg, M (1999) Nonviolent communication: a language of compassion. Del Mar, CA: Keep Coming Back Company.

Rosenberg. M (2005) Speak peace in a world of conflict: what you say next will change your world. Encinitas, CA: PuddleDancer Press. Wachtel, T (1997) REAL justice: how we can revolutionize our response to wrongdoing. Pipersville. PA: Piper’s Press.

Woolf, P (2008) The damage done. London: Bantam Books.

Wright, M (1977) “ ‘Nobody came’: criminal justice and the needs of victims.” Howard Journal, 16(1), 22-31

Wright, M (2010) Towards a restorative society: a problem-solving response to harm. London: Make Justice work. www.makejusticework.org

Zehr, H. (1995) Changing Lenses: A New Focus on Crime and Justice, Scottdale, PA: Herald Press.

Zehr, H. (2002) The Little Book of Restorative Justice, Intercourse, PA: Good Books.