Restorative justice: from punishment to reconciliation The role of social workers

Paper presented at Seminar on New Trends in Juvenile Justice in the Federation of Bosnia and Herzegovina, Sarajevo, 4-6 March 1998

The Seminar was organized by the United Nations Centre for International Crime Prevention

 Published in European Journal of Crime, Criminal Law and Criminal Justice, 1998 6(5), 267-281

ABSTRACT

The principles of restorative justice are summarized. Many crimes harm individual or corporate victims, and the first response should be to repair the harm; the offender, if known, should make reparation for this; victims and offenders should be offered the opportunity to communicate; the community should be involved; and there should be feedback from this process to crime prevention policy. Secondly, the practice is outlined: victim/ offender mediation requires preparation of the parties, a procedure for the meeting, and follow-up. Thirdly, the requirements when setting up a service are summarized, including a clear statement of aims, arrangements for involving the community, safeguards for victims and offenders, and a policy for equal opportunities (non-discrimination). In conclusion, the role of social workers is suggested: not necessarily handling all the work themselves, but enabling members of the community to take part, with suitable training and supervision. The advantages of using volunteers or paid staff are compared. Restorative justice can contribute towards healing those who are damaged by crime.

Introduction

It is an honour for me to be invited to speak at this workshop, and I welcome the opportunity to share with you some of the ideas which have been developing in recent years. This is a significant moment, because the Federation of Bosnia and Hercegovina is re-examining its criminal justice system, together with many other aspects of society, and indeed this Workshop is part of that process. I hope I am aware of the dangers of bringing ideas to another country from an off-shore island with a different legal system; we can never fully understand someone else’s situation. I regret that I do not have knowledge of Bosnian law; but as the law is being re-written, perhaps that does not matter so much! But I have heard a little about conditions here; for example, I understand that there are relatively few people in prison, and that the arrangements for visits to prisoners, and by prisoners to their families, are considerably more liberal than they are in Britain. I do not know the prison population here, but perhaps it is similar to the proportion in Macedonia and Croatia, which in 1995 was 55 per 100 000 population, or for Slovenia (25), both of which compare favourably with England and Wales (100 and rising fast: it has now reached 64 000). A low prison population is often a sign that a country is humane, law-abiding, or both.

As an introduction, perhaps I should say a little about myself, so that you can put my proposals in context. On the programme an academic label is attached to my name, but for more than twenty years I worked for voluntary organizations, that is, non-profit organizations whose executive committees are unpaid, and in many cases much of their work is also done by trained, but unpaid, volunteers. They are non-governmental organizations (NGOs), although some of them receive funds from central or local government as well as from individual citizens and philanthropic trust funds. For several years I was director of the Howard League for Penal Reform, which campaigns for reform of the criminal justice system and receives no government money. Later I worked for Victim Support, which now has 12 000 trained volunteers throughout England, Wales and Northern Ireland, who offer support to people who have been victims of crime, and 4 000 committee members, as well as 800 staff, in 370 local groups. At present I am a volunteer community mediator in South London where I live, and a member of the executive committee of Mediation UK, the national organization for community mediation, victim/ offender mediation and mediation in schools. It is much smaller than Victim Support, but it is growing. So you will understand that I believe strongly in the ability of people from all walks of life to be trained and to undertake responsible work in their local communities in a professional way, even though, as volunteers, they receive no money except expenses. Each mediation service is administered by a co-ordinator, who is usually paid; he or she is responsible for the training and supervision of the volunteer mediators. But this is not the only way: some mediators are trained volunteers, some are full-time paid staff, and others work perhaps for a few sessions a month in their free time at evenings and week-ends and are paid for each session.

I have been asked to speak about restorative justice, and perhaps the best way to begin is by describing two actual cases. Obviously there is no such thing as a `typical’ case, but they have some common features. Then I will describe the principles of restorative justice. It is for you to consider them in relation to your country; I believe them to be universally valid. After outlining the principles, I will say something about the practice, and the requirements when a service is being established; finally I will consider the place of restorative justice in relation to the conventional system, and the role of social workers. First the case histories:

Lillian is an 81-year-old lady living alone. A robber broke into her house while she was there and stole £17; she struggled to hold onto it, and several of her fingernails were broken. The incident was especially upsetting for her because there had been a similar incident two years previously, shortly after the death of her husband, in which a larger amount of money was stolen.

She contacted the victim/offender mediation service herself after reading about it in the local newspaper, and after being informed by the police that a 22-year-old suspect had been arrested. She wanted to meet him face-to-face to tell him that she was both angry and hurt; she said that meeting him would `put many ghosts to rest’. A meeting was arranged in the prison where he was held, at which she also told him that the two incidents had made her a prisoner in her own home – she daren’t leave doors or windows open. He apologized and said that he had been on drugs; also his mother had tried to help him and he had thrown this back in her face, and he now regretted the hurt he had caused her. He had no money with which to repay Lillian, but she suggested that he should undertake treatment for his drug addiction, and he agreed to this. He was later sentenced to three years’ imprisonment; we have no information as to whether drug treatment was available for him in prison, but we have heard that he does some charity work from prison. He said afterwards that the experience had made him look at his life and where he wants to go; Lillian expressed sympathy for the position of offenders generally and thought that unemployment and lack of opportunity may contribute to their behaviour.

(Summarized from information supplied by Sheffield, England, Victim/Offender Mediation Project, and its Annual Report 1996-97)

Peter was a 16-year-old schoolboy. He had a part-time job after school, and was trusted to count the money received in the business and take it to the bank. One day he was found tied up, lying on the floor; the till was open and the money gone. He said that a gang of four or five boys had come into the store, tied him up, and taken the money. But when he was questioned he changed his story; no one else remembered seeing four or five boys enter the store at that time, and no one else’s fingerprints were found on the till. Eventually he confessed that the `robbery’ was arranged by him and a 17-year-old friend, Sam. He handed back the money he still had. The court placed him on probation, and referred the case for assessment to see if victim/offender conferencing was appropriate (Did the victim wish to meet him? Was he willing to meet her? Were they both mentally and emotionally capable of taking part in the process?).

The victim wanted to talk to Peter, because several questions were still unanswered. Peter’s parents agreed to the meeting, but Sam’s did not. A conference was held with the victim, Peter and his parents, and two mediators. The victim told her story, and Peter told more details of the robbery than he had done before. He had brought money from his savings to pay the remainder of his half of the money stolen, and said that if Sam didn’t pay the other half, he would pay that as well. Peter agreed that he should do something more than hand back the money, because of the worry and betrayal experienced by the victim; she suggested that he should do a cleaning task that would take 16 hours. At this point Peter’s father asked if he could speak; he thought that 16 hours was not enough, and 40 would be more appropriate to the seriousness of the offence. After some discussion Peter agreed to do the extra work, for the local community.

The victim was pleased with the outcome. Peter said he felt better now it was over, and three years later has not re-offended – but Sam has.

(Case history from Carolyn McLeod, Co-ordinator, Community Justice Program, Washington County Court Services, Stillwater, Minnesota, USA)

PRINCIPLES

These cases show the basic ideas on which restorative justice is based (summarized in Table 1). Firstly, it stresses that criminal acts do more than break the law – they cause harm, and society’s primary response should be to try to repair the harm (Wright 1996). This can be done by offering help to the victim; in Britain it is done by a separate voluntary organization, Victim Support, and could be done by other victim advocacy groups in the future.

Secondly, if the offender is known, he or she should also be required to make reparation for the harm, insofar as that is possible. Reparation may be made to the victim him- or herself, or to the community. It need not be in the form of money; sometimes the offender can do some work for the victim, or if the victim does not want that, for the community. Often offenders feel themselves to be disadvantaged; it can be helpful if they recognize that there are other people just as disadvantaged as they are, and to find that they have something constructive to give. They may undertake work which otherwise would not be done at all, for example helping disabled children to swim or children with learning difficulties to read, taking wheel-chair users to the shops, helping to run a lunch club for elderly people, or working (under supervision) to install door locks and repair windows in the homes of victims of burglary. Quite a number of victims do not want reparation for themselves; for them, the best way for the offender to show that he is sorry may be that he agrees to go to school regularly, keep away from the `friends’ who led him into trouble, take part in a programme such as anger management, treatment for addiction to drugs, alcohol or gambling, or learn a skill so that he can get work; these are practical ways of making reparation, and they help the offender to build his or her self-esteem, avoid re-offending, and be re-accepted into the community.

Thirdly, in restorative justice both victims and offenders are offered the opportunity to communicate, if they are both willing. This is almost impossible in the conventional court process but many people, like Lillian, want it. They do not only meet to discuss reparation; often victims want to express their feelings, to tell the offender the effect of the crime, and to ask questions which only the offender can answer. Offenders in turn often feel genuine regret after hearing this, and want to apologize and try to make reparation. The process must be voluntary if it is to mean anything (ways of making sure that the mediation (conference) is voluntary are summarized in Appendix A). If victims do not want to meet offenders, they can ask family, friends or a victim support worker to do so on their behalf. Sometimes these meetings are one-to-one, and are called victim/offender mediation; sometimes they become larger gatherings, often called `conferences’. If a young person has no family, or is separated from them (which I know has happened to many young people in Bosnia and Hercegovina), efforts are made to find someone who is significant in his life (perhaps a teacher, youth club leader, or volunteer mentor or befriender) to support him.

Fourthly, the community should play a part both in helping the victim and in making it possible for the offender to make amends and to be reintegrated into the community. This may mean providing training, therapy or other help, or enabling the offender to find work so that he can pay compensation. The government, commercial firms and NGOs have a part to play. This is easier said than done, but they may at least be able to provide temporary work experience for young people; it is an essential part of the offender’s reintegration as a member of the community.

Finally, there should be feedback of information learnt from this process to the authorities responsible for crime prevention policy. Restorative justice does not rely on deterrence (although many offenders fear the prospect of meeting their victims), and a problem-solving approach to crime prevention is needed.

This new idea has inspired many of us. Restorative justice, as a response to crime, is different from criminal justice, because it is not based on balancing the harm caused by the offender with more harm (punishment) to the offender (Wright 1996); Gandhi said `An eye for an eye leaves everyone blind’. Instead it aims to repair, make good, and heal. I believe that it can bring benefits to victims, offenders, and communities. Some people say that in modern urban societies families have been divided and the sense of community has been lost; this could be a way of bringing families together and re-building communities. For some time punishment and retribution have been regarded as the norm; but a study of history and of other cultures shows that the practice of reparation is also very old and widespread.

PRACTICE

I have been asked to give a practical focus to my talk, and there can be two aspects to this: the process of mediating or conferencing and the organization of a mediation or conferencing service.

1. Victim/offender mediation

Details of mediation practice vary; there is no one `right’ model, but some points are always important. I will sometimes use the word `should’; please take this simply as an expression of my opinion of a good way of doing things, which may need to be adapted to suit other circum­stances. Other ways are possible, provided that their effects on both victims and offenders have been thought through. I will describe the process; my description is a com­bin­ation of the way it is being done in some places, and the way which I would choose if I were running a service. The word `victim/ offender mediation’ usually refers to communic­ation between a victim (or victims) and an offender (or offenders) assisted by mediators, and `conference’ to meetings where family members and others are also present. I will use `mediation’ as a general term to cover both kinds; there is no rigid distinction between them. There are three stages, all important: preparation, conference, follow-up (Table 2).

Preparation: both parties should be seen separately, to make sure that they understand mediation, have realistic expectations, and seem likely to use the opportunity constructively and safely. The mediators decide which family members or others to invite to the meeting; often members of the extended family, and quite young brothers and sisters, can make helpful contributions. If a young person has no family, they try to find someone else to support him. People may be asked to travel long distances to attend a meeting, just as witnesses are in a trial. Sometimes the victim does not want to meet the offender, and the mediators act as go-betweens.

Conference: if the meeting goes ahead, a neutral place is found. The mediators arrive half an hour early to discuss how they will handle the session. There are advantages in using two mediators (for example male and female, or from the same ethnic backgrounds as the victim and the offender). The mediators will have been trained in important details, such as who comes into the room first, how the seating is arranged, who is asked to speak first. Above all they should have a clear idea of their aim: what makes a good mediation session? Should the aim always be an agreement to make reparation, or is it sometimes enough for the two parties to understand each other better? If the crime arose from a dispute, is it possible for them to resolve the dispute? This may be more important than dealing with the single incident which constituted the crime.

One way of organizing it would be like this: the mediators introduce themselves and those who are present, ask the parties to sit down and agree to ground rules, and invite the offender to say what took place. This constitutes an admission of the act, although not necessarily of the crime: for example, he may admit that he took his friend’s car, but may claim that it was not a crime because he believed that his friend had given permission. Then the victim is invited to give his or her side of the story, and to describe the effect of the crime, in financial, physical and emotional terms. The offender is invited to respond, and to say who was hurt by his act; he may want to explain why he did it, and usually offers an apology. Often the victim wants the offender to do something to show that his apology is sincere, as I mentioned earlier: paying compensation (restitution) is one way, but others include community service or co-operation with a rehabilitation programme.

Follow-up: this is as important as preparation. Victims are asked if the mediation service can contact them again later, to check whether they are satisfied with the process, and whether reparation, if any, has been completed. If possible there should be routine monitoring to assess the work of the service, and from time to time more detailed in-depth evaluations. Offenders are also followed up.

2. Organization

A number of decisions need to be taken by the steering group which is setting up the service. They are listed in Mediation UK’s booklet Victim/offender mediation: guidelines for starting a service. Some of the points to be decided are:

Should the service use paid staff or trained volunteers as mediators? Volunteers have advantages: they represent the local community, they are available in the evening and at weekends, and cost less than paid staff; but they are not cost-free, because they need training, support and supervision, and out-of-pocket expenses. Victims and offenders may respond better to people who are acting for the common good, without pay. There are also benefits for the volunteers: they learn extra skills for use in their daily lives and their work, and if they are unemployed they often gain self-confidence which helps them when applying for jobs. Services often combine a paid co-ordinator and volunteer mediators. A few use trained `ordinary’ people (that is, not social workers or psychologists), but pay them for each visit or conference; this gives the mediators an incentive to attend continuing training and `refresher courses’. In any case training is important, together with procedures for `quality assurance’ and safeguards for victim and offender.

Should the service be statutory (official) or independent? In England some services are run by a `partnership’ of social services, police, prosecutor, the education department and other govrnment agencies. We recommend that they should not be operated by only one service, such as social services or the police, so that there is no appearance of being more sympathetic to offenders or to victims. Others are independent non-government organizations, with their own management; but they have to work closely with the `system’. Often official agencies are represented on their management committees, and they may receive funding from local or national government, as well as philanthropic trusts. (Options for the organization of victim/offender mediation are summarized in Table 3.) Advocates of restorative justice believe that there is a danger that its ideals may be modified by people in the `system’ to fit in with traditional concepts of retribution or rehabilitation.

At which point in the criminal justice process should mediation operate? Mediation can take place at any stage of the criminal justice process. In some countries (England, Australia, New Zealand) the law allows police to `divert’ less serious cases to mediation. In others the prosecutor can discontinue the case if it is `not in the public interest’ to proceed; one ground for discontinuance can be that reparation has been made. In England the verdict (finding of guilt) is separate from the court’s decision as to what sentence to impose; this period of up to 28 days can be used for the preparation of reports on the offender, or for mediation. Mediation can also take place after sentence, or even after release from prison.

I have said that communication between victim and offender should be voluntary; but when an offender has agreed to make reparation, I see no reason why some pressure should not be placed upon him to complete it. This can be done by postponing the decision to prosecute, or the sentence, until the prosecutor or the judge has seen whether the reparation has been completed. It is also possible for mediation to take place after the sentence; in this case the offender and the victim know that the sentence will not be affected, and that the offender has no reason to make an apology if he does not mean it.

What types of offence and offender should be accepted for mediation? This conference is about juvenile justice; but if we are thinking of victims as well, we should not exclude them when their offenders happen to be adults. However, I recognize that a start has to be made somewhere. Similarly, some research has found that victims of petty offences do not want to be bothered with mediation; the more serious the crime, the more emotions they may want to express. Therefore there need be no limit on the seriousness of offences referred for mediation. But some offences are clearly so serious that they cannot be resolved by mediation alone, and the case has to go back to a judge who can decide how much the offender’s liberty needs to be restricted.

Early diversion saves the time of prosecutors and courts, but is not possible with serious cases, unless a judge is involved as in New Zealand, where all juveniles cases except homicide go to a conference, but the more serious ones are then brought before a judge who may decide to impose an additional sentence in the public interest. For the most serious offences, mediators must have experience and advanced training in the effects of grief and trauma and the operation of the criminal justice system; careful preparation of both victim and offender are needed over a long period. Appendix B suggests how restorative justice can be used in less serious cases and more serious ones.

Requirements

What do you need if you are to set up a service to offer restorative justice? Some of the requirements are:

A group of people with understanding of the restorative justice ideal

The ability to persuade criminal justice personnel of the advantages, and reassure them over any doubts they may have.

A clear statement of aims. These should include the satisfaction of victims with the process, and offenders’ feeling that they have been fairly treated. Some policy makers want to judge the programme according to the percentage of offenders who are re-convicted, the amount of reparation paid or the number of hours of community service; but many advocates of restorative justice consider that it is justified by the benefits to victims and offenders (as measured by the follow-up which I mentioned earlier). It is essential to be clear about aims before training begins, and before `success’ can be measured. Research should be qualitative as well as quantitative.

A procedure for determining policy and practice. The basic principles will be determined in advance, but new situations will arise, and the service will need to decide how to handle them. It is useful to have a small group of people ready to deal with these questions.

Funds, premises, staff and/or volunteers. It is recommended that the project leader should be full-time, to ensure that the project maintains its momentum; administering the service should not be merely one of the tasks of a social worker or police officer. To avoid conflicting priorities, a mediator should not be engaged on the same case in another role, for example as a social worker. Funds should be enough to pay the expenses of those attending the conferences, and if necessary to pay for interpreters.

Arrangements by which the community will provide resources to enable offenders to make reparation: skills training, treatment for alcohol/drug addiction, opportunities for community service, work to earn money to pay reparation (easier said than done!) I use the word `community’ loosely, to mean for example local authorities, businesses, voluntary organizations, religious groups, and individuals.

Safeguards for victims and offenders: to ensure that they take part voluntarily and are not under pressure to accept unreasonable agreements – and to ensure physical safety of all parties, including the mediators.

Equal opportunities policy. Mediation services have a section in their constitution, stating that they will treat everyone equally (victims, offenders, staff, volunteers) regardless of their ethnic background, religion, language or other personal factors. This policy is emphasized during the training of staff and volunteers, and regularly monitored.

A complaints procedure for participants, staff and volunteers. The procedure should itself include mediation at an early stage, if informal resolution is unsuccessful.

A method of record-keeping and follow-up, and where possible more detailed research.

Research in England (Umbreit and Roberts 1996) has found that both victims and offenders who had taken part in mediation were more satisfied with the justice they had received than those who had not; in some cases there was a significant difference. Victims appreciated receiving answers to their questions, telling the offender the impact of the crime, and receiving an apology. An Australian study of drink-drivers, juvenile offenders and victims (Sherman and Strang 1997) found that after conferencing, as compared with courts, more offenders in both groups were ashamed of their actions, had increased respect for police, and recognized that the process allowed them to make up for what they had done. Victims were much more likely to receive an apology and some form of restitution; they were less likely to believe that the offender would repeat the offence. After a conference, fewer victims were angry with offenders and more felt sympathy for them.

CONCLUSION

Restorative justice can be put into practice in different ways. The way I have described could be called `communitarian’: it involves individuals and groups from the community as much as possible, as mediators and managers. Its principle is `As much State as necessary, as little State as possible’; in some cases it will be appropriate for local authorities to provide resources on behalf of the community. As far as possible the `owners’ of the crime, and those most affected by it, respond to it. Both social workers and members of the community share responsibility for providing the services which support victims and enable offenders to make reparation by organizing community service projects, drug and alcohol treatment, and above all by providing work.

If you agree with this philosophy, the role of social workers is not necessarily to handle everything themselves, taking it out of the hands of the offenders, victims and their families (Christie 1977), but to lead, to enable people, to empower them to resolve their own conflicts as much as possible. But this principle is only acceptable, I believe, if it is combined with restorative justice. To give people power to inflict punishments would damage the whole community; taking away a person’s liberty is a decision which should only be made by judges.

Social workers may undertake mediation themselves, perhaps working with a trained volunteer as co-mediator; but their role will also be to organize the service, to be members of management committees, to train people in mediation skills and to support and supervise them (Umbreit 1993). But first the social workers themselves will need to be trained in mediation skills, which are different from those of social work.

When justice is fully restorative, it will be based on healing, not punishment. The contrast between the old and the restorative principles has been summarized by Dr Howard Zehr (1989), who was the director of one of the first Victim/Offender Reconciliation Programs (see Table 4). Restorative justice supports and involves the victim, holds the offender accountable, requires him to make amends, uses the resources of the community, and helps to reintegrate the offender into the community. It does not concentrate only on the outcome, but is concerned about the effect of the process on the participants. Its success is measured by the effect on the victim and the offender. If it is to achieve this, without dilution of its ideals, it needs initiatives from the top and support from the community; those who do not at first accept the idea should be persuaded, not compelled, to adopt it (Bazemore and Pranis 1997).

But how does it compare with the conventional system? On reconviction rates, different researchers have found different results; in some studies, the reconviction rates have improved, in others there has not been a significant change; but none has found that the figures were worse. Does it replace imprisonment? This is not one of its aims, but in New Zealand the number of young people in custody went down substantially: before conferencing was introduced there were 200 residential places for young offenders, after it only 76. There was also a sharp fall in the numbers coming to court, from 63 per 1 000 young people aged 14-16 in the population before, to 16 per 1 000 afterwards (Maxwell and Morris 1996: 93). As a result it can hardly fail to save money. I understand that in July 1997 Zenica prison had 342 prisoners and 180 staff, so that the average cost of each prisoner must have been more than half the salary of a prison officer. The same report says that `It is likely that the prisons will be put under more pressure as this situation normalises’ – if that is true, then it will be worth taking any opportunity to avoid a return to the so-called normality that puts more and more people in prison. In earlier days, I understand that in Bosnia i Hercegovina ex-prisoners were guaranteed a job, and a degree of supervision was often provided by the employer and a works council. That may not still be possible, but it would be worth looking at the advantages, wherever custody is not necessary for the protection of the public, of trying to provide the work, the supervision and the opportunities for reparation without the extra difficulties caused by sending people to prison first. In the United States, some states are cutting schools budgets to pay for prisons, In England, in February 1998, the government announced an extra £22 million for schools and an extra £100 million for prisons. Those priorities cannot be wise. In England, 72 per cent of male young offenders sentenced to custody were re-convicted within two years; for those aged 14 to 16 when sentenced, the figure was 89 per cent (1994 figures). This, as well as the huge cost of prisons, justifies the statement that prisons are not part of the solution, they are part of the problem.

May I end by quoting from three resolutions of United Nations Congresses on the Prevention of Crime and the Treatment of Offenders. In 1980 Resolution 8 of the Sixth Congress (International Review of Criminal Policy 1983, no. 36, p. 17-18; General Assembly Resolution 35/171) recommended member states to

consider means for the effective involvement of the various components of the criminal justice system and the community in the continuing process of developing alternatives to imprisonment.

Resolution 16 of the Seventh Congress, in 1985 (endorsed by General Assembly Resolution 40/32), stated that

Imprisonment should be imposed only as a sanction of last resort, taking into account the nature and gravity of the offence … . In principle, imprisonment should not be imposed upon petty offenders.

The use of alternatives to imprisonment must be co-ordinated with the competent social services in facilitating, if needed, the social resettlement of the offender.

Finally, also at the Seventh Congress, a Declaration of basic principles of justice for victims of crime and abuse of power was agreed, and subsequently adopted by the General Assembly (Resolution 40/34). It stated that

Victims should be treated with compassion and respect for their dignity. …

Judicial and administrative mechanisms should … enable victims to obtain redress through formal or informal procedures.

Informal dispute resolution mechanisms, including mediation, arbitration, and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims.

I hope that these resolutions will soon be implemented in Bosnia and Hercegovina, England and Wales, and throughout the world.

REFERENCES

Bazemore, Gordon, and Kay Pranis (1997) `Hazards along the way: practitioners should stay true to the principles behind restorative justice.’ Corrections Today, December, 84, 86, 88, 89, 128.

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

Maxwell, Gabrielle, and Allison Morris (1996) `Research on family group conferences with young offenders in New Zealand.’ In: J Hudson, A Morris, G Maxwell and B Galaway, eds. (1996) Family group conferences: perspectives on policy and practice. Monsey, NY: Willow Tree Press.

Mediation UK (n.d.) Victim/offender mediation: guidelines for starting a service. Mediation UK, Alexander House, Telephone Avenue, Bristol BS1 4BS, England.

Quill, Deirdre, and Jean Wynne (1993) Victim and offender mediation handbook. (Available from Mediation UK, as above.)

Sherman, Lawrence W, and Heather Strang (1997) RISE working papers 1 – 4: … research in progress on the ReIntegrative Shaming Experiments (RISE) for restorative community policing. Canberra: Research School of Social Studies, Australian National University.

Umbreit, Mark (1993) `Crime victims and offenders in mediation: an emerging area of social work practice.’ Social Work, 38 (1), 69-73.

Umbreit, Mark, and Ann W Roberts (1966) Mediation of criminal conflict in England: an assessment of services in Coventry and Leeds. Centre for Restorative Justice and Mediation, School of Social Work, University of Minnesota, 386 McNeal Hall, 1985 Buford Avenue, St Paul MN 55108, USA

Wright, Martin (1996) Justice for victims and offenders: a restorative response to crime. 2nd ed. Winchester: Waterside Press.

Zehr, H (1990) Changing lenses: a new focus for crime and justice. Scottdale, PA: Herald Press; London: Metanoia.

I am grateful to Ann Warner Roberts for comments on an earlier draft of this paper. c:rjsara March 1998

Table 1

Restorative justice: principles

Reparation

(1) Criminal acts often harm individual victims

Primary response: repair harm

(2) Offenders, if known, required to make amends

Mediation

(3) Victims and offenders offered opportunity to communicate feelings, ask and answer questions

Process must be voluntary

Community

(4) Helps victim

Enables offender to make reparation

Crime prevention

(5) Feedback of information to departments responsible for crime prevention

Table 2

Victim/offender mediation: the process

Preparation

Do they understand the process?

Will they use it constructively and safely?

Who should be present?

Conference

Neutral place

Mediators (two) arrive half an hour early, agree about aims, decide seating, etc.

Participants are asked to agree to ground rules

Victim(s) and offender(s) invited to speak, ask and answer questions

For some, that is all they want; other victims ask for an apology or reparation

If the crime arose from a dispute, they may be able to agree to resolve it

Follow-up

Record-keeping, monitoring

Has reparation been completed?

Victim’s satisfaction

Offender’s development

Table 3

Organization of victim/offender mediation: options

Official

Organized and managed by inter-agency group (social welfare, police, prosecution, education, health (drugs), etc.)

NGO

Organized and managed by NGO

Standards agreed between NGO and official agencies

NGO has management committee with representatives of official agencies

Both official and NGO

Full-time co-ordinator (trained in mediation)

Full-time paid mediators

and/or Part-time paid mediators

and/or Mediators recruited from the community, paid for each session

and/or Trained volunteer mediators (expenses paid)

Note: All mediators need support, supervision and continuing in-service training

Funding:

National government

and/or Local government (canton)

and/or Statutory agencies (social welfare, police, etc.)

and/or Charitable trusts

and/or Possibly international funding to start

Table 4

Retributive justice

Wrong as a violation of rules

Wrongs create guilt

Crime seen as categorically different from other harms

Debt paid by taking punishment

Focus on past

Imposition of pain to punish and deter

Harm by offender balanced by harm to offender

Offender denounced

Justice serves to divide

Victims’ needs and rights ignored

Ignores social, economic and moral context of behaviour

Process alienates

State monopoly on response to wrongdoing

Community on sideline, represented abstractly by state

Restorative justice

Wrong as violation of people, relationships

Wrongs create liabilities and obligations

Crime recognized as related to other harms and conflicts

Debt paid by making right

Focus on future

Restitution as a means of restoring both parties

Harm by offender balanced by making right

Harmful act denounced

Justice aims at bringing together

Victims’ needs and rights central

Total context relevant

Process aims at reconciliation

Victim, offender and community roles acknowledged

Community as facilitator in restorative process

(Extracted from Zehr 1990)

APPENDIX A

How to make sure that mediation (conference) is voluntary

Offender willing to meet, victim not willing

– Offender can make reparation through community service, so victim and offender both know that offender is no worse off because of victim’s refusal to take part

– Victim’s family and/or supporters can take part in conference on victim’s behalf

– Indirect mediation (`shuttle diplomacy’): mediators as go-betweens

Victim willing to meet, offender not willing

– Offender can make reparation (to victim or through community service) without meeting victim

– Offender’s family or supporters can take part on offender’s behalf

– Indirect mediation (as above)

Victim willing to meet, offender not known (or not willing)

– Victim/offender groups: victims meet offenders who have committed similar offences in structured discussion. (This should be available in a comprehensive system of restorative justice, but is little used as yet.)

Note:Mediation should be voluntary, reparation may be enforced

APPENDIX B

How restorative justice can be used for less serious and more serious cases

(1) Less serious offence

police

accused admits act or `does not deny’ accused denies guilt

court

guilty                                                                                                                    not guilty

conference                                                                     conference

action plan; apology,                                                 conference does not action plan

reparation, etc.                                                            reach agreement

(no further court                                    court imposes                        court accepts plan

involvement)                                           sentence* (reparative      or adds to it

                                                                      if possible)                               or reduces it

mediation service                                                                                        mediation service

monitors plan                                                                                                 monitors plan

(2) More serious offence

police

prosecutor

accused does not deny                                                                            accused denies guilt

not in public interest to                                court                                court

prosecute (e.g. conference

or reparation already)                                  confirms guilt                guilty       not guilty

                                                                                                   conference

                                                                               action plan                       no agreement

                                                                             court accepts plan          court imposes

                                                                             or adds to it                       sentence* (reparative

                                                                              or reduces it                      if possible)

* victim or offender can request mediation after sentence (sentence is not affected)

6673 words c:RJsara