Paper for Conference on ‘Human rights and education: global and regional problems and perspectives’, Khanti-Mansiysk, Russia, , 21-24 August 2000
Outline:1. If we could begin from the beginning 2. What’s wrong with the old system? 3. What happens in mediation and conferencing? 4. Mediation for juveniles: safeguarding their rights 5. Evolution not revolution 6. Questions and problems 7. A restorative future for children 8. Mediation in schools
1. If we could begin from the beginning
If we were able to take a new sheet of paper and design a new system for dealing with crime, knowing what we do now, what would it look like? We might well start by recognizing the needs of victims. We (that is, the rest of the community), would want to support them, restore them emotionally and materially as far as possible. This would apply to all victims if they needed it – and we have to remember that the harm suffered by victims varies greatly from very slight to devastating.
As we know, only a minority of offenders are caught and convicted, but the proportion is higher when victim and offender know each other. What would our new system do then? It seems rational to suggest that when the crime arises from a dispute there is a better chance of preventing further hostility by trying to resolve the conflict, rather than by treating one of the disputants as an offender. A common complaint with the existing system, as we shall see, is that victims are not involved; many would welcome the opportunity to tell the offender the effects of the crime on their lives, and to ask questions which only the offender can answer. Although victims are often angry at first, it has been found that after meeting the offender, and receiving an apology, many victims want to play their part in encouraging the offender to make better use of his life. A victim may have been an offender in the past, or may have a son or grandchild who has been ‘in trouble with the law’.
For offenders, many would agree that they should, firstly, be held accountable for what they have done. Although some of them may come from very disadvantaged backgrounds, that does not justify them in committing acts of theft or violence. They should make amends to the victim; this is not only for the benefit of the victim but also of the offender, so that he or she can ‘make things right’ and start again. This may not work with older, more serious and professional offenders; but most offences are not serious, and most offenders are young.
What form should their reparation take? Firstly, the offender should be willing to respond to the victim’s feelings and questions. Secondly, it could consist of monetary compensation to the victim or the community, even if he is only able to pay a symbolic amount. He or she might do a number of hours’ work for the victim or the community; the work should be of a kind which helps other people, for example driving a bus for elderly people, or helping to organize activities for children with physical or mental disabilities. This is truly restorative, because it benefits everyone.
There is a further way in which offenders can show their victim that their apology is genuine and that they are willing to make amends: by co-operating with whatever rehabilitative programmes they need – literacy, drug or alcohol treatment, work skills or social skills; or by agreeing to change their life-style, attend school, keep away from their former friends, and so on.
This is not a matter only for the victim and the offender, nor even for the official agencies. The community is where both of them live, and it also has a part to play. Offenders have to be enabled to make reparation. The programmes they need have to be available; they may need work to earn money to pay compensation. In many victim/offender mediation programmes trained lay people act as mediators, either as volunteers or paid for each session. In this way understanding of the nature of crime and the background of offenders, as well as the experience of victims are extended through the community. In the version of victim/offender mediation known as conferencing, the extended families of the victim and offender also take part – and they are members of the community too.
A further benefit of restorative justice is that the responsible authorities learn lessons for crime reduction: As an English lawyer, Kate Akester, has said, some victim/offender mediation services ‘are becoming more proactive, and encouraging community and government bodies to examine trends and patterns, so that preventive measures to minimize offending may be taken’ (Justice 2000: 29). This problem-solving approach is in accordance with the Crime and Disorder Act 1998, which requires local authorities and chiefs of police to draw up crime reduction strategies.
2. What’s wrong with the old system?
Why should the existing system be changed? These criticisms are made from an English i perspective; you will be able to assess whether they also apply in Russia. Until a few years ago, victims were treated merely as witnesses, and in English law when the offender pleads guilty witnesses are not even called to attend the court, in which case they may not even know that their case is about to be heard. They are given little information or explanation of decisions. In particular, in order to save the court’s time, the accused is often invited to admit a less serious charge, which carries a lesser penalty; this makes victims feel that their pain and loss have not been officially acknowledged. When the accused ‘pleads Not Guilty’ (denies the charge) and the victim is called to give evidence, he or she may be subjected to cross-examination by the defending lawyer, whose objective is to cast doubt on the evidence; many victims have spoken of their pain at being disbelieved, and they feel as if they are accused of lying. If the offender is convicted, the defending lawyer makes a ‘plea in mitigation’ to try to persuade the judge to reduce the sentence; this often tries to minimize the offender’s culpability, and sometimes even tries to put some of the blame on to the victim.
It is fair to say that there have been improvements, introducing some of the measures proposed by Victim Support (1988; Raine and Smith 1991), the Victims Charter (Home Office 1990 and 1996) and the Royal Commission on Criminal Justice (1993); but there is still some way to go, and it can be argued that some of the problems are inherent in the adversarial nature of the court process (Wright 1999a: chapter 4).
It is paradoxical that a system based on punishing offenders makes too few demands on them. To some extent this is precisely because the system is punitive: it is therefore necessary for them to be protected against wrongful conviction and punishment by various safeguards; they have a lawyer to speak for them, so the accused is often hardly required to open his or her mouth in court. The prospect of punishment naturally encourages them to deny the offence or minimize its seriousness. It does not provide an opportunity to understand the effects on the victim, nor to apologize or make reparation.
This is not in the interests of the community, either. It gives other citizens, including children, the wrong message: that it is right to control people by fear and the threat or use of force, rather than by providing incentives, using persuasion, setting an example, and showing concern for others. In the ideal society which we are imagining, surely these would be the principles on which we would wish to base our life together.
The contrast between the old and the new perspective has been summarized by the American Howard Zehr (1995), who has been the director of a victim/offender mediation service as well as a leading philosopher of restorative justice. Some of his points are:
The old and new aims
Focus on infliction of pain Focus on making right
Justice based on rules, outcome Justice defined by substance, process
Focus on guilt and abstract principles Focus on harm done
The state as victim People, shalom as victims
Adapted from Howard Zehr, Changing lenses.
3. What happens in mediation and conferencing?
The story of an actual case will show how mediation operates in practice. (Details have been changed to preserve confidentiality.)
A young boy, ‘Tom’, had been convicted of damaging a lorry. When he was visited, it was apparent that he came from a disorganized family, but a youth worker visited him, and discussed the effects of crime on victims and ways in which he might make reparation. The victim, ‘Mr Roberts’, was then visited, and he explained the specific effects on him; on a further visit, this was described to the young person, who had admitted breaking into the lorry.
When Mr Roberts was asked whether he would accept an apology, at first he was very angry, and said he wanted to chop the offender’s hands off. This raised doubts about whether the case was suitable for mediation; but such initial reactions are not unusual, and after he had told the worker more about the background, it was decided to go ahead.
Mr Roberts was the manager of an engineering factory, and was very tired of having to get up in the middle of the night to call the police and deal with the damage caused by burglars and vandals. With three very young children, he and his wife did not get as much rest and relaxation as they needed. He was also concerned that if the youth had released the brake of the lorry, or tried to drive it out into the road, either the youth or other people might have been killed. He wanted to meet Tom face to face and tell him how he felt.
When Tom was told about the effects of his actions on Mr Roberts, he was willing to meet him, accept responsibility for what he had done, and apologize. Both were prepared separately for the meeting, and told about the mediation process and its rules. When they met, there was little for the mediators to do: the exchange of views went very well, ending with Mr Roberts calling Tom ‘son’, offering him a handshake, then putting an arm round his shoulder and wishing him well for the future. Tom was surprised that he had been treated fairly, reasonably and respectfully by Mr Roberts.
When a check was made some months later Tom had not offended again, although he had been considered a high risk.
The process can be summarized as follows:
- Case classified as eligible (meeting legal criteria)
- Visit(s) to offender
- Offender does not deny facts
- Visit(s) to victim
- Explanation of mediation to both V and O
- Case assessed as suitable (meeting personal criteria)
- Both consent to take part in mediation
- Decide who should be present. Options:
- indirect mediation (‘shuttle diplomacy’): mediators go back and forth between the parties. This may lead to
- victim/offender mediation (one-to-one) or to a
- conference (with extended families or supporters)
- Mediation session
- explain agenda, purpose of mediation
- agree ground rules
- opening statements (uninterrupted)
- discussion, asking and answering questions, expression of feelings
- apology, agreement on reparation (in most cases)
The process is based on basic principles, of which the main ones are: firstly, confidentiality – the court will be told the content of any agreement (or that no agreement was reached), but will not be told what was said during the mediation session, so that everyone can speak freely. Secondly, consent to participate – both parties should be told about their rights and the nature of the mediation process. They should know that they can withdraw at any time before reaching an agreement, and that if the victim does not wish to take part in mediation the offender can make reparation to the community; in this way both are aware that if the victim does not wish to take part, this will not result in a more severe punishment for the offender. Thirdly, neutrality – everyone is treated with respect, regardless of their age (or youth), their race or nationality, or any other personal characteristics; the effects of the offence are discussed, but mediators are not judges, and it is not their job to condemn. Many offenders have also been victims, not only of crime, but also of ill-treatment, disadvantage, of not being valued by their parents or by staff of schools or institutions. This does not excuse them; but they need to be valued before they can value others.
4. Mediation for juveniles: safeguarding their rights
Restorative justice should be available to all victims, whether their offenders are juveniles or adults; but there is a case for beginning with young offenders, because generally their offences are less serious and it is easier to gain acceptance from criminal justice professionals and the public. It should be remembered that young people can be victims as well as offenders. Juvenile victims should also be given a voice; but safeguards are needed.
Mediation is an informal process, and this has advantages; young people in particular may find it less intimidating than a court. But it is not a public process, and safeguards are needed to make sure that the mediators are well trained and conform to their own standards and to national and international codes such as the European Convention on Human Rights. NGOs have also issued standards (Mediation UK (1998), Restorative Justice Consortium (1999), Servicebüro (1998)). The solution will involve lawyers; but this can be a problem: if they are conventionally trained and are not aware of the principles and philosophy of restorative justice they may try to make the process into a battle, rather than an attempt to reach agreement. In New Zealand ‘youth advocates’ are employed by the courts; they advise the young person, explain the proceedings, check that the charges (accusations) are at an appropriate level of seriousness, and clarify matters where necessary. In New Zealand there are two further safeguards: the police have appointed Youth Aid officers to assist the process, and the courts satisfy themselves that the restorative process has been carried out adequately (see Justice 2000: pp. 25-35).
5. Evolution not revolution
At the beginning we imagined that we could design a completely new system of justice. But of course we can’t, and it would not even be desirable to attempt it. As Howard Zehr says in the introduction to the Russian edition of Changing lenses (1998: pp. 12-13, 13-14):
In this book I tried to present two models of justice: the retributive (‘legalistic’)and the restorative, as mutually exclusive systems. Although such an approach clearly helps to demonstrate the differences, I now understand that it is too naïve, unrealistic, and even not entirely honest. To-day I incline to think that justice should include elements of both systems, taking into account not only the inadequacies but also the merits of the legalistic model.
[В книге я стремился представить две модели правосудия: карательную („легистскую”) и восстановительную – как взаимоизуключающие системы. … Сегодня я склоняюсь к тому‚ что правосудие должно включать элементы обеих систем‚ учитывая не только недостатки‚ но и достоинства легистской модели.]
Every community, every culture has to find the forms [of restorative justice] specifically suitable for it, which will correspond to its needs and traditions. ‘Restorative justice’ is far from being a carefully worked out scheme, ready for use. It is, rather, a lens, through which we can look at the world, [allowing us] to see the truth which is found in one form or another in almost all cultures: that crime inflicts harm on individuals and on the community as a whole, and that justice seeks a way of restoring peace and wholeness among people in their communal life.
So if we start from where we are now, we have to consider different ways in which restorative features can be incorporated in the existing procedure, so that by degrees it can become more and more restorative.
(1) The first stage would be to divert some cases to mediation instead of to the police, especially when the offence was linked to a dispute. The individuals learn how to resolve their problems without involving the authorities, and if lay mediators are used they also gain experience. The individuals do not acquire a criminal record.
(2) Victim/offender mediation (or conferencing) can be used at various stages within the system. The prosecutor can defer prosecution to allow time for the case to be resolved. This is often done in continental European countries, and would be possible in England under the Code for Crown Prosecutors (CPS 1994).
(3) There would be a new role for courts and lawyers. Cases which were successfully diverted would not need to come to court at all, leaving more time to deal with the remaining ones. More serious cases would first come to court, and if the offender did not deny the alleged act, the court would refer it to mediation (just as at present English courts can refer the case to the probation service for a pre-sentence report). The court would act as a safeguard for victims and offenders, supervising the mediation process, satisfying itself that the victim and offender had been informed of their rights and that any agreement was within broad limits of appropriateness; it might refer the case back to the conference if, for example, very few people attended the conference, or the plan involves an element of stigma, or is much too severe (Justice 2000: p. 30).
Defending lawyers would also have primarily a safeguarding and advising role, making sure that the accused is aware of his rights, and is fully informed before agreeing to take part in mediation or to sign an agreement. ‘Success’; for a lawyer would not be to minimize the offence and the punishment, but to encourage the offender to recognize what he or she had done (except of course where the young person was wrongly accused) and make fair and reasonable reparation.
(4) Courts would still be needed:
to supervise the restorative process in moderately serious cases (those which are not diverted out of the system at an earlier stage)
to try very serious cases. In New Zealand, for example, juveniles accused of homicide must be tried in court; in Austria, those accused of offences punishable with more than 5 years, or an offence that resulted in a death.
where mediation is considered not appropriate, or one party does not consent to take part, or if no agreement is reached about reparation.
where the accused denies the act with which he or she is charged. Mediation is possible, however, if the accused admits the act which was harmful to the victim but maintains that he has a legal defence (for example, that the crime was the result of provocation, or of a genuine mistake).
6. Questions and problems
Systems for managing the behaviour of human beings raise problems, and restorative justice is no exception. A number of these have been considered elsewhere (Wright (1999b); here a few common ones will be considered. Firstly, the reparative process leads to unequal outcomes for similar offences. But sentences in conventional courts also differ widely. Admittedly the courts attempt to achieve consistency, and it is right that they should, because usually they are imposing punishment. Punishment is pain inflicted by the state on citizens, and therefore it should be carefully regulated and kept to a minimum. In restorative justice, on the other hand, the aim is for the victim and the offender to agree on an amount of reparation, which requires only that the outcome is right for this victim and this offender. As Akester says, ‘The notion of uniformity of reparations and of all responses being proportionate to the offence is contrary to the nature of the [restorative] system’; ‘a court-imposed solution is likely to be less satisfactory both for victims and offenders than a solution that they have worked out for themselves’ (Justice 2000: pp. 31, 75).
Secondly, mediation may not be fair if the two parties have very unequal power, for example if one is a forceful adult, more powerful, physically or psychologically, and the other a timid juvenile. This does not necessarily lead to unfairness, as the case history quoted above shows; it depends on the attitudes of the people concerned. Mediators have to assess the situation; either they control the communication so as to counterbalance the inequality, or, if they think that is not possible, they should refer the case to the court. In some cases, mediation will not be appropriate.
Another group of questions concerns the way in which restorative justice is administered. This will obviously vary in different countries, depending on their laws and their traditions. Some of the different structures in England and Wales include the following. Firstly, victim/offender mediation may be provided by a ‘voluntary organization’ (Non-Governmental Organization, or NGO). Typically, this will have a voluntary (unpaid) management committee, with a paid manager or co-ordinator. The actual work may be done by paid staff, or trained volunteers, or trained members of the lay community paid a small fee for each session. This has the advantage that the organization is wholly devoted to mediation and its ideals and standards, and that it involves members of the public and makes them better informed. A disadvantage is that the service is an ‘outsider’, and may be marginalized by the criminal justice professionals, so that it receives few cases, or only minor or difficult ones. It may also have difficulty in finding funds. These problems may be partly overcome by inviting representatives of statutory agencies (police, probation, social services, education) to join its management committee; in England the government has introduced ‘partnership’ between the voluntary and statutory agencies by requiring some of the latter to use a proportion of their budget to buy services from voluntary organizations. In some countries there is no separate organization, but the mediators are answerable directly to the judge; this has the disadvantage that the training and traditions of judges (until now) do not include the principles and practice of mediation, nor do judges have the time to supervise and support mediators.
The question, Who does the work?, is also important. In England there is a tradition of voluntary work, helped by the fact that many office workers work for only 35 hours a week and retire at 65, 60 or earlier. The fact that volunteers do not have to be paid (except their expenses) is a financial advantage, but they do have to be professionally recruited, trained, supported and supervised, which normally does require paid staff. Some feel that the relationship between mediators and participants is helped when the mediators can say that they are not paid and are working only for the good of the participants and the community; others feel that lay mediators are more reliable, especially in attending training sessions, if they have a small financial incentive. This is also an issue of ‘equal opportunities’: many in the mediation movement believe that mediators should come from all sections of the community, and not only from the highly educated professionals, but some who have low incomes will not be able to afford to act as mediators unless they receive a fee. This also means that no entry qualifications should be required at the beginning of training: anyone who completes the training satisfactorily should be able to become a mediator, subject to an assessment and references, and continuing support, supervision and in-service training. This presupposes a network of local organizations that will provide these resources, and preferably a national ‘umbrella’ organization which will draw up and maintain standards of good practice.
Should members of other professions and agencies be mediators? Certainly, if they do, they should have specific training in mediation: a qualification in, for example, social work does not include mediation skills. Certainly also a person who is involved in a specific case as, for example, a police or probation officer should not act as a mediator in the same case. This confusion of roles should be avoided. In some countries they act as mediators in different cases, but there is some doubt about whether ‘the leopard can change his spots’, or at least whether the probation officer will be perceived as being inclined to put the interests of the offender first. In Austria mediation is carried out by members of the probation service, but they have been trained as mediators and have no other work except mediation.
7. A restorative future for children
You are familiar with the rights of children. One which is very relevant for restorative justice is that states shall seek to promote,
whenever appropriate and desirable, measures for dealing with such children [who have broken the law] without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. International Convention on the Rights of the Child, 1989, article 40(3)(b)
I would like to suggest that two of the most essential needs and rights of children are: to be brought up so that they respect themselves and other people (and animals, and the environment); and to be taught to resolve problems without violence. To respect people and to be non-violent are also duties, but young people cannot fulfil those duties until they have been shown the way. In some respects the rights of children are the same as the rights of adults.
For children (and adults) who are victims there are specific rights:
the right to support, restoration of harm (if necessary, and if possible – see above)
Sometimes when a person becomes a victim, it brings to light other problems which they were experiencing, and if possible they should receive help with these as well.
the right to participate in the restorative process (if they wish to)
the right to see preventive action taken in future
A common reaction to misfortune (not only crime but for example a preventible death in hospital) is to say ‘What’s done can’t be undone, but it will be easier for us to recover from our loss if we know that the person responsible has learnt a lesson, so that it is less likely that other people will suffer in the same way.’
For children (and adults) who offend:
the right (and duty) to make amends
Contrary to the stereotype, many offenders regret what they have done, especially if they are young, and especially if they have met their victim and heard about the effects of the offence. It is right that they should have the opportunity to make amends and make a new start.
the right to receive respect, and the duty to show respect to others
One of the ideals of restorative justice is to separate the person from the action. The action is rightly condemned, but the person (the ‘actor’) remains entitled to the respect which is due to every human being.
the right (and duty) to earn re-acceptance in the community, contributing to it and receiving from it
For the community:
the duty to learn from what has happened, and take steps to make it less likely to happen again.
It is often said that the criminal justice system is not a ‘system’ because its different parts do not operate in an integrated way. It could be made more like a system.
the duty to educate children, teaching them respect for each other’s rights, and non-violent ways of resolving conflicts
Teachers sometimes complain when yet another new idea is added to the list of things which they are expected to teach children; but children can understand the idea of mediation, and can mediate between younger children. This restorative approach to discipline actually saves work for teachers, as well as helping to make the children into better future citizens.
the duty to enable offenders to make reparation and earn re-acceptance
If we expect offenders to do certain things, we have to make it possible. If they are to pay compensation, they must be able to earn the money. If they are to learn work skills, or tackle a problem with alcohol or drugs, the community (the local authority or an NGO) must provide a suitable programme. This requires adequate resources.
A community which fulfils these duties has earned
As Zehr says:
‘Шалом’ означает не только ‘мир’ а ‘правильний порядок вещей’. Он подразумевает материальное благополучие человечества‚ жить в мире без враждебности; но не значит – без конфликтов.
‘Шалом’ тоже подразумевает справедливые экономические и политические отношения в обществе.
Shalom does not only signify ‘peace’ but ‘things being as they should be’. it means material prosperity, living in peace (but not necessarily without conflict!)
Shalom also includes just economic and political relationships in society. (Summarized from Zehr 1995, p. 130-1; Зер‚ стр. 154-5)
Restorative justice is a significant step towards this ideal.
8. Mediation in schools
Restorative justice is not applicable only to the criminal justice system. We can also use its principles in schools. Older children can be trained to be mediators, and to enable younger children to resolve disputes and fights. They learn that many conflicts can be resolved without the use of force, and they learn the simple techniques which can lead to a win-win solution. It is a process of healing. In schools this can be called ‘restorative discipline’, and it teaches future citizens an important lesson: not that if you break the law, you will be punished, but that if you harm other people, you should try to make amends.
Crown Prosecution Service (2000) Code for Crown Prosecutors. 4th ed. Crown Prosecution Service, 50 Ludgate Hill, London EC4 M 7 EX.
Home Office (1990 and 1996) Victims Charter (1st and 2nd eds.) London: Home Office.
Justice (2000) Restoring youth justice: new directions in domestic and international law and practice. Justice, 59 Carter Lane, London EC4V 5AQ.
Mediation UK (1998) Practice standards for mediators and the management of mediation services. Bristol: Mediation UK,
Raine, John, and Rena Smith (1991) The victim/witness in court project: report of the research programme. Victim Support, 39 Brixton Road, London SW 9 6 DZ.
Restorative Justice Consortium (1999) Standards for restorative justice. London: RJC.
Royal Commission on Criminal Justice (1993) Report. Cm 2263. London: HMSO.
Servicebüro für Täter-Opfer-Ausgleich und Konfliktschlichtung (1998) Standards: ein Handbuch für die Praxis des Täter-Opfer-Ausgleichs. Servicebüro, Aachenerstrasse 1064, D-50858 Köln, Germany.
Victim Support (1988) Victims in court: report of a working party. Victim Support, as above.
Wright, Martin (1999a). Restoring respect for justice. Winchester: Waterside Press.
Wright, Martin (1999b) ‘Key questions in victim-offender mediation.’ In: Beata Czarnecka-Dzialuk and Dobrochna Wójcik, eds. Juvenile offender-victim mediation. Oficyna Naukowa, ul. Mokotowska 65, PL 00-533 Warsaw, Poland.
Zehr, Howard (1995) Changing lenses: a new focus for crime and justice. 2nd ed. Scottdale, PA: Herald Press. (See also Russian translation: Ховард Зер‚ Восстановительное·правосудие. Москва: ‹Судебно–правовая реформа›, 1998.)
M W August 2000
Yekaterin rev 008
ii Shalom is the biblical word used by Howard Zehr to describe a community which is peaceful, orderly, and free. It does not mean that there will be no conflicts, but conflicts and crimes will be dealt with in a way that respects the rights of everyone – especially children.
iii See note 2