Restorative justice, in its pure form (which has yet to be implemented), is about much more than gestures of reparation. It is a different process for responding when members of society harm each other, and has the potential to shift society’s response in the direction of voluntary reparative action by individuals and the community, rather than coercive action imposed by the state. It does this in at least six ways:
by concentrating more on the harm rather than on the fact that a crime has been committed;
by concentrating on the people harmed, at least as much as on the offenders;
by involving the community in the response (who the community is and how it can be involved will be discussed later);
by recognizing the importance of the process of responding, if the hoped-for outcome is not merely a tangible act such as reparation but a satisfied victim and an offender who thinks he or she has been treated fairly;
by making healing and reintegration, individual and social, the primary aims; and
by integrating the system so that, when victims and offenders in dialogue uncover pressures towards crime, these can be taken into account when drawing up a crime reduction strategy
Of course this is not to say that it is a panacea. Restorative justice is not a codified set of instructions, which would enable us to say ‘This is the right way of doing it and that isn’t’. We can say that some practices are more restorative than others: a procedure is restorative to some extent when it is supportive to victims (especially those whose offenders are not known or do not agree to take part), or helps offenders to make a new start, or involves the community; the ideal version will do all of these things, but we cannot achieve the ideal all the time. Restorative justice has encountered inherent problems; difficulties in its relationship to the conventional system when both are running alongside each other; and difficulties in convincing those who are familiar with the conventional system and are apprehensive about change. But the system, despite its serious shortcomings, has some strengths which we should keep. It provides a basic method for trying to determine the facts when the accused denies responsibility; it has safeguards for the accused; and it is getting better at looking after victims of crime (though some .attempts in this direction, such as victim statements, may be unable to deliver the intended benefits (Sanders et al. 2001).
It should not be forgotten that the conventional system also has many defects; and that restorative justice has been subjected to much research, some of which is at least as rigorous as anything to which existing processes are subjected (see for example .Umbreit 1999).
Rather than begin with definitions, let me illustrate restorative justice with a case history. After that the paper will have three main sections: the mediation process, victim-sensitive administration, and principles and standards. The case study comes from the Handshake Project (Projekt Handschlag) in Reutlingen, in southern Germany, established in 1985, the oldest victim/offender mediation service in that country (one of several countries, incidentally, where victim/offender mediation is far more widely used than in the United Kingdom).
Members of a right-wing youth group were having a barbecue, drinking and playing right-wing songs, when they were attacked with baseball bat and starter pistols by a group whose parents came from Croatia, Somalia, Turkey and Germany. The result: seven people injured, two needing out-patient treatment; a cassette player smashed, and a flag burnt.
The accused admitted the acts, but showed little remorse, because they thought the other group ‘needed to be taught a lesson’. Nevertheless the prosecutor referred the case to the victim/offender mediation service.
At the first interview with the accused, they saw themselves more as victims than offenders; they had ‘done what they had to do’, but it had gone a bit wrong. However, they agreed to mediation.
Of the seven injured youths, only four wanted to take part; they saw themselves as martyrs, being also rejected by the community, and this confirmed their right-wing attitudes. But in the preparatory meetings which form part of the victim/offender mediation process they were treated as the victims, and their injuries were taken seriously, so they no longer felt that everyone was against them. As members of the community they felt entitled to claim compensation, which was assessed at the equivalent of about £1700; it was agreed that the multi-party mediation would take place when the offenders had paid part of this, to show that they were serious about the meeting.
The accused were reluctant to agree; but the substantial compensation made them understand the seriousness of what they had done. So some instalments were paid, and three months later a meeting took place. At first the atmosphere was very tense, but as they went over the incident, they realized that both groups had behaved in much the same way. Both had been drinking and hurling insults. In this atmosphere a rumour started that the right-wing group was going to attack the others, who therefore attacked first. When they all saw this, the chasm between them shrank a little. The attackers had paid about a third of the compensation, so it was agreed how the remainder would be paid, and the two groups left almost amicably. The one was relieved at avoiding a court appearance, and the other felt that their injuries had been acknowledged. Later contacts with both groups showed that they had behaved correctly since the meeting. (Projekt Handschlag 1998)
The payments were facilitated by the ‘Victim Fund’ (Opferfonds). Most German states have such a fund, which pays compensation to victims (or other creditors), which the offender then repays in instalments; if the offender is unemployed and cannot pay, s/he can do community service instead, ‘earning’ money from the fund which is used to pay the compensation. The funding is provided by local authorities, charitable trusts, and/or fines (Wright 1988).
This paper is concerned with policy and practice; to consider policy it will take the restorative process as a starting point and asking two sets of questions: from the point of view of the process itself, and of the way in which the service is administered. In both cases the needs of the victim will be emphasized.. The following section draws on, and is amplified by, Masters (2001).
A. THE MEDIATION PROCESS
1. Who is the victim?
In the story from Reutlingen, both groups felt victimized in different ways. Those who work for victim assistance organizations are well aware that many victims have committed offences in the past, and many offenders have been victims. Similarly, if one boy constantly taunts another in the school playground, and the bullied boy eventually lashes out; or if a farmer depends on the water from a stream, and his neighbour higher up the hill ruins his livelihood by diverting or polluting the water, so that his anger and frustration boil over and he goes after him with a shot-gun – who is the victim? It is said that in neighbour disputes, the victim is the one who wins the race to the police station. The answer is more clear-cut when a crime such as a burglary or robbery is committed by a stranger, but even here the crime creates a kind of reluctant relationship between the two people, which many of them want to resolve. In a survey in Northern Ireland in 1998, people were asked whether they would be willing to attend a meeting to help decide what should happen to a young person who had stolen from them, and three quarters said they would (Amelin et al. 2000).
In another use of the word, some offenders who come from disadvantaged backgrounds are seen, or see themselves, as ‘victims of the system’; and paramilitaries and freedom fighters often come from groups that feel themselves unfairly treated, and use this as a justification for creating yet more victims. It will be helpful to the discussion if we distinguish which kind of victim we are talking about, for example victims of a crime that is on the statute book, victims of commercial malpractice, victims of social abuses, structural inequality, and so on (some of which possibly ought to be prohibited by the criminal law, but they aren’t yet). Much of this is resolved by the practice, in restorative justice discussions, of considering harm, whether or not it is against the criminal law.
2. Should the offender or the victim be approached first?
Turning to the procedure itself: if we are considering the victim’s needs, it may appear that the victim should be visited first (and experience has shown the importance of visiting both people, or at least telephoning them, to explain the process so that they can make an informed decision and do not have exaggerated expectations – or anxieties). But if the offender then refused, or was considered unsuitable, the victim’s expectations could be raised, although this should be avoidable if it is clearly explained in the preliminary visit. Other services therefore consider it best to begin by approaching the offender; yet others believe that either may be contacted first, because even if no mediation takes place, people usually find benefit in the initial meeting.
A related question is whether someone else can represent the victim if he or she does not wish to take part, and if so, who? The answer is that it can be, and has been, done, but there is less potential benefit for both the victim and the offender. The same applies to indirect mediation or ‘shuttle diplomacy’.
3. Who should contact the victim and the offender?
There are practical advantages in arranging for the same person to contact both parties. One suggestion is therefore that a police officer should do it, on the grounds that they are used to dealing with both victims and offenders; but unless they have been specially trained, police officers would not be able to answer all the questions about mediation and its implications. Probation officers might do it, but they are not accustomed to talking to victims, and may be perceived by some as being ‘on the side of the offender’; like the police, they would need training if they were to explain the mediation process and its pro’s and con’s. Victim Support has taken the view that this is not an appropriate task for its volunteers, because their role is to support victims and not to promote mediation or to act on behalf of the court (Victim Support 2000); their role could include helping them talk through the idea of mediation but not to encourage them to participate (George 2000). A case could be made for saying that victims have the right to be informed of an option which so many have found helpful. There is one more category of persons who would be well placed to contact both parties, because they are accustomed to dealing with both and able to explain the mediation process, namely the trained facilitators, particularly if they do not have any other role in the criminal justice system apart from mediation
Whatever the decision, all people, professionals or volunteers, who contact victims should have extensive victim sensitivity training.
4. How should they contact the victim?
The pro’s and cons of the various methods are fairly clear: letters are economical to send but may seem impersonal; telephone calls may catch someone at a bad moment,. Visits probably make the best contact, and although they use a lot of the time of staff or volunteers, recognized standards insist that individual contacts with participants are an essential part of the process (for example Mediation UK 1998: 7; Restorative Justice Consortium 1998: 7). The decision to allocate resources to a case may depend on how serious the crime is perceived to be by the victim. Probably the ideal is to write a letter first, suggesting a time for a visit. But care should be taken with the wording of the letter, as well as the visit itself, to make victims feel that this is being offered for them; there have been examples of letters to victims which have begun by saying that victim/offender mediation might be beneficial to the offender, with no expression of regret or sympathy for what the victim had experienced. They even follow the legal tradition, of referring to the case by the offender’s name, as if the victim were a person of no importance. Victims may not want their names to adorn the notice boards in the courthouse, but in a personal letter they would appreciate some recognition. Some victims are indeed generously willing to do what they can to encourage a young person to make better use of his or her life; but that is not usually their first concern. Nor should they be promised that a meeting will give them emotional relief or ‘closure’; it may, but it may not. In a word, the victim should know what is on offer, and the possible benefits for them or for the offender; but it should be the victim’s informed choice.
People who are used to working with offenders may be apprehensive about talking to victims, fearing that they will be angry and demanding retribution; and they may be protective of offenders, seeing them as victims of deprivation and injustice – but that is a different kind of victimization (Muncie, in press). There are reports that some social workers, when engaged in ‘shuttle diplomacy’ between victims and offenders, make excuses to the victim on the offender’s behalf, and tone down the victim’s account of the impact of the offence when passing it on to the offender. This is not doing a service to either of them. Nor, on the other hand, should victims be treated over-protectively; support should be there when they need it, but in general they are able to, and need to, face what has happened and make their own decisions. There is a balance to be struck between over-persuading them, and informing and reassuring them.
5. What types of case are suitable?
In another context the English law says that community sentences should be used only when the offence was ‘serious enough’ (Criminal Justice Act 1991, sec. 6), and this should also be a guiding principle for using victim/offender mediation and conferencing. From the victim’s point of view, he or she may be reluctant to devote time to resolving a crime which may have been annoying or inconvenient, but caused no major pain or lasting damage; but the seriousness should be gauged by the effect on the victim, rather than the legal category. A burglary in which nothing is stolen may be very disturbing to someone who feels that their security and privacy have been violated. From the administrative point of view, victim/offender mediation is very time-consuming to arrange, and resources should be concentrated where they can do most good. This is all the more true of conferencing, which is similar but brings together the offender’s extended family and often also people to support the victim
Several countries have rules which exclude minor offences from victim/offender mediation (which does not mean that they can’t be dealt with ‘restoratively’, that is, by focusing the offender’s mind on the harm caused to others rather than the threat of future punishment to him); see for example Akester (2000). In New Zealand, 50 per cent of juvenile cases are dealt with informally, with a family group conference only for the more serious or repeat offenders; only 20 per cent of juvenile cases are taken to court, and half of those are referred to a conference before sentence.
It has to be remembered that any system limited to juvenile offenders cannot be fully restorative, because it offers nothing to victims whose offenders happen to have reached their eighteenth birthday, although for practical reasons it may be necessary to begin with juveniles while the service builds up experience and public support. Similarly, a fully restorative system must meet the needs of victims whose offenders have not been caught – in various countries there are victim assistance agencies which meet some of this need (see for example Fattah and Peters, 1998; Mawby, in press).
In the United States some victims, or families of victims, of the most serious crimes, including sexual assault and homicide, are asking to meet their offender (Umbreit et al. 1999), and there have also been some cases in the United Kingdom (see for example Moreland 2001). The benefits of being able to tell the offender the effects on their lives, and to ask questions which only he can answer, can be very great; but the need for careful and extensive preparation of both people is correspondingly important, to make sure that they do not come with expectations that might not be met. These meetings take place in prison, or even after release, and in the present state of the justice system it is essential to the integrity of the process that the length of the prison sentence is not affected by the outcome.
6. At what stage of the criminal justice process should victim/offender mediation be considered?
One answer to this question is ‘At any stage’: mediation and conferencing have been used at the cautioning stage; cases can be referred by the prosecutor (which is the norm in Scotland and most continental countries, but for some reason not in the rest of the United Kingdom, although there is nothing to prevent it: Wright 1994); they can be included in, or even replace, a pre-sentence report; or they can be offered after sentence, including before release from prison or even, in the United States, on Death Row. If it takes place earlier in the process it obviously offers speedier justice (but from the victim’s point of view it should not be too speedy: they need time to reflect, as the English Youth Offending Teams have been finding: Holdaway et al. 2001: 25). It also saves more of the prosecutors’ and the courts’ time. But early diversion tends to be limited to relatively less serious cases, although in Austria offences punishable with a sentence of up to five years are eligible (Akester 2000).
If mediation is offered before the criminal justice process has made a final decision about prosecution, sentencing or parole, there is a question mark over whether the process is fully voluntary on the part of the offender; the relevance of this to the victim is that he or she may not be sure whether the offender is sincerely apologetic or is ‘going through the motions’ in the hope of avoiding prosecution or incurring a lesser sanction. However, this does not seem to be a problem in practice, and it may be said that offenders may have a choice between taking part in victim/offender mediation and claiming their right to go to court; victims should be prepared for the possibility (another reason for careful preparatory visits) and generally seem able to satisfy themselves about the offender’s genuineness. Even if they are not convinced, they can have the satisfaction of knowing that the offender has performed some community service to make up for what s/he did.
After the offender has been sentenced, there is no question that the offender is taking part entirely voluntarily (provided that victim/offender mediation is not part of the sentence and that it is understood that he will not obtain early release by doing so). Some victims may prefer to wait for some time before they are ready. There are however no savings to the system because it has run its full course.
In all cases the victim may need help with practical matters such as transport and child care (especially if they have to travel to a prison to meet the offender), or other special needs such as an interpreter; and any necessary emotional support should be available afterwards.
The other answer is to question whether all cases need to go to the criminal justice system at all. There are those who say ‘Of course, if it’s a crime, it should be reported’. But there is English research indicating that in some cases taking young offenders to court makes them more likely to re-offend (for example West and Farrington 1977), and the huge numbers of offences uncovered by crime surveys show that a large increase in the number reported would swamp the system. In a substantial proportion of cases the victim and the offender are known to each other, and the offence (often assault, criminal damage or harassment) arises out of a dispute. It may then make more sense for the people concerned to go to a community mediation service rather than to the police, to try to resolve the dispute rather than react to the offence. If one neighbour secures a criminal record for the other, relations between them are not likely to improve.
This raises the question of who should run the community mediation service, which I shall consider later.
7. Which model of mediation?
This also needs to be looked at from the victim’s point of view. There are four main models; but they do not need to be regarded as distinct. They can be labelled as indirect mediation (‘shuttle diplomacy’), victim/offender mediation (originally one-to-one in most cases, though the dividing lines are now less clear-cut), family group conferencing (with the offender’s extended family present), and community conferencing (in which the victim is also encouraged to bring family and other supporters). But it can be looked at differently, as a continuum. The process starts with visits to the victim and the offender separately, and the matter may be dealt with at that stage; or the victim may prefer to speak to the offender in person. That in turn may be one-to-one, or the parties may prefer to have one, two or more family members present, which at some stage may be described as a conference.
There are also questions about the procedure. The New Zealand family group conferences, for example, are based not on ideas of restorative justice but on a Maori tradition for bringing the extended family together to address the problems of a wayward young person. The process includes private family time, when all social workers and others withdraw, to empower family members to work things out for themselves. When the young person has committed an offence, the victim is also invited; but he or she is also excluded from the private time, and therefore may be put in the difficult position of saying No if their proposal for reparation seems inadequate. But there are ways round this: they may come together again for further discussion, not for a flat acceptance or rejection of the proposal. The victim may spend the time while the family has its discussion in talking to the police officer, social worker or others present, to consider what would be acceptable; and one of these can speak for the victim if he or she prefers not to take part.
In community conferences everyone is present throughout, so that the victim and their family are part of the whole process; this has advantages for negotiating a reparative plan for the offender, but when the family are considering their internal problems the victim may feel that his or her presence is intrusive, and should be allowed to withdraw.
The point is that there is no ideal method for all circumstances; we need to gain experience and make it available through the training of facilitators, so that they can judge the best way to handle each situation. Victim assistance workers would add that there should be an opportunity for victims to talk over the process afterwards if they want to, especially if it didn’t go as well as they hoped. After a restorative process the participants should be asked if they agree to a follow-up some time later, by the service or some other community group; if so, this is a means of finding out whether they need further support and of monitoring the work of the service.
8. What about the excluded victims?
Various groups may not be included in these regular procedures. Victims of commercial malpractice, for example; possibly the best way for them to obtain redress is through the consumer movement rather than the criminal law. What about victims of alleged malpractice by the police? There are possibilities for mediation procedures here too: disciplinary procedures, whether internal or in court, are up against the difficulty of proving that a rule was broken or an offence committed, whereas mediation relies on showing the officer the effect of his or her behaviour on the victim (and perhaps vice versa). The largest group of excluded victims are those whose offenders are not caught (and some whose offenders will not take part in mediation, or are assessed as unsuitable to do so). For them the victim assistance organizations should provide any help needed or refer to other agencies if necessary; in some cases groups can be arranged in which they can meet offenders who have committed similar offences, or talk to other groups in the community such as schools and churches.
B. VICTIM-SENSITIVE ADMINISTRATION
How can victim/offender mediation be organized so that it takes full account of the needs of victims, as well as of offenders?
1. Involve victims’ organizations (those that provide services to victims, not those who, in the name of victims, campaign for more severe punishments) and restorative justice practitioners in the planning and management of the service. It is important that this should be done at a senior level as well as in the day-to-day management.
2. Who should run the service?
There are examples of services run by community mediation services, free-standing victim/offender mediation services, probation, police, or a multi-agency partnership. We have seen that for some types of offence, arising from a dispute where the victim and the offender know each other, it may be best to treat them as disputes to be resolved rather than as offences to be prosecuted. Neighbour dispute services can be carried out by community groups; there are now well over a hundred of these in England and Wales. But community groups have to remember that they are intervening in people’s lives, and they have a responsibility to do it well. This means that they need to provide good quality training for their facilitators, and should adopt a code of good practice. Since we are considering the needs of victims, there must be an equal opportunities policy, guaranteeing help to any victim, ‘regardless of gender, race, religion, language, disability, sexuality or age’ (Auld et al. 1999: 33), and regardless of the characteristics of the offender in the same way. To ensure this, the same policy should apply to the management committee of the service. Mediation UK has drawn up practice standards (which will be considered below) and is evolving a procedure for accreditation, to safeguard participants; and funders rightly look for some similar quality assurance.
When we are considering victim/offender mediation or conferencing the position is not so clear. Since victim/offender mediation must be a voluntary process, and some cases will be unsuitable for various reasons, there needs to be provision for referring cases to court; an arrangement is also necessary for referring cases out of the system to the mediation service. It is still possible for the service to be independently run, on a partnership basis (i.e. a statutory agency gives a contract to a voluntary one to provide a specific service), subject to similar assurances of the quality of the service provided; otherwise the issue of funding can be critical, because charitable foundations do not normally provide permanent funding. Jim Dignan in his review of restorative justice options considers that the ‘stand-alone model’ is ‘doomed to a precarious and marginal existence at the periphery of the criminal justice system’ (Dignan 2000: 48). But it has the advantage that it exists for mediation as its primary purpose, and has a committee who can campaign on its behalf. We have seen in England that if it is run by the probation service, for example, a new chief probation officer can change policy and transfer resources to other work; and because the project is part of the probation service, it has no such body of supporters.
Another candidate for running the service, since the first such project in Wagga Wagga, New South Wales, is the police. This has the advantage that it can do much to change police perceptions and attitudes, but already in Australia it was criticized as putting too much of the process in the hands of the police. In countries where for historical reasons there is mistrust of the police, a senior police officer who believed in restorative justice and wanted to promote it, might be well advised to take a back seat so that it could enjoy the widest possible community support. One argument for involving the police is that they are used to dealing with victims; this is true, but only in a limited context, and Victim Support workers have found that they sometimes make assumptions about victims, which can lead them to blame victims of some crimes, or at the other extreme to be overprotective towards victims who fit the ‘victim’ stereotype of being, for example, elderly or disabled. Another method is for the service to be funded by all the relevant agencies (such as police, probation, education, and the relevant local authorities; these would then have appropriate representation on the management committee, in addition to a victim assistance organization.
The Home Office evaluation of the pilot youth offending teams identified three models. An in-house service allows good communications with the rest of the YOT, but the number of cases would be severely restricted by the limited availability of trained staff. An ‘outsourced’ (contracted out) model can offer a good quality service, generates more innovative practices, involves the community, and gives better value for money. There were some drawbacks in the pilot services, but these were primarily procedural. Finally a ‘mixed-economy’ system combined the other two: a staff member from the voluntary sector organization works within a YOT, which ensures good communication, provided that effective victim consultation procedures are in place (Holdaway et al. 2001:82-3).
In a word, there are arguments for and against different methods; the guiding principle should be the interests of the victims, not of the statutory or non-statutory organizations wishing to provide the service.
3. Who should be the facilitators?
Whoever the facilitators are, they should receive good initial training, backed up by in-service training, support and supervision. After that, as in other respects, different alternatives have different pro’s and cons. There can be full-time facilitators, as in the case history. This is the most professional solution, and indeed it could lead to the emergence of a new profession, with qualifications and career structure. To suit the convenience of participants, especially victims, they would have to be prepared to work at evenings and week-ends. There might be a risk that they would become ‘case-hardened’ if they were mediating regularly every week. The use of paid professionals could seriously limit the extension of restorative justice, because it is time-consuming to organize, and to do so in every case where it was appropriate would require a larger number of facilitators than governments were likely to fund, especially as in many people’s opinion the best practice is to use two facilitators. The next possibility is to use members of the existing criminal justice agencies (provided of course that they did not mediate in a case where they were involved in another capacity). The cost would be absorbed in their existing salaries, but the amount of mediation they could do would be limited by the time they could spare from their primary duties. There is also the problem that, if the victim were aware of their job as, say, a probation officer or social worker, he or she might feel that they were working on the offender’s behalf, no matter how correctly they carried out the process. (There would be similar concerns if victim assistance workers were involved, from the offender’s point of view.)
An attractive idea is to use volunteers. One of the ideals of restorative justice is to involve the community, and this is a way to do it. They can be recruited from all sections of the community, and as they move on, they take with them into the community a better understanding of what it is like to be a victim or an offender, and often some ideas about measures that could reduce crime. Preferably there should be no entry qualification except experience in the ‘university of life’; some would recognize during training that they were not suited to the work, but there would also be an assessment process at the end of the course. It is common practice for volunteers to work in pairs, each having if possible something in common with either the victim or the offender: age, gender, race or other characteristics. A more experienced facilitator can be teamed up with a newer one. This has the advantage that at the end of each session they can spend a little time evaluating how it went, and learning from each other; part of the training is to learn how to give and receive constructive praise and criticism.
Volunteers cost less than professionals, but they do not cost nothing: they have out-of-pocket expenses, and recruitment, training, supervision and support all require professional organization. They are likely to be available outside working hours; but they do have other commitments in their spare time, so it takes time to find people available on a particular evening. Mostly they are reliable, but it has been known for them to cancel at the last minute, and to fail to turn up to training sessions. They may not be confident handling a complex case, and it may be difficult for the same team to find dates when both are available for further sessions if they are needed. Sometimes a volunteer might be paired with a full-time member of staff. But in general they are capable of high quality work, and volunteers under the guidance of professionals have provided services such as Relate (marriage guidance) and the English magistracy for many years.
But there is an equal opportunities question. Even though volunteers are reimbursed for expenses, including travel and child-care where necessary, people on low incomes may find themselves out-of-pocket, for example because they have to turn down overtime work, or no longer have the time to go to the cheap supermarket. Some services therefore recruit mediators from the same cross-section of the community as volunteers, but offer them a small fee for each session. This not only relieves some financial pressures, but also provides a modest incentive to continue with the service and to take part in in-service training. But it does mean that the facilitators can no longer say that they are volunteers, acting solely for the benefit of the participants and the community, which some people, such as victim assistance organizations, have felt adds a dimension of community solidarity to their work.
Once again, therefore, there is no single ‘right’ answer; different considerations need to be balanced, taking account of the needs of victims, offenders and the community. The latter word, as is well known, needs to be defined. I have attempted to do so (Wright 2000: 23-25) by positing that there are three basic ways in which social policies can be put into effect. Individuals and businesses can pay national and local government, through their taxes, to do what is necessary. Or they can give donations to non-governmental organizations (NGOs) to do it. Or they can do it themselves, as volunteers. These can of course be combined in varying proportions. So ‘the community’ in a broad sense includes taxpayers (who are also voters, having an influence on how their taxes are spent), donors, and volunteers (managing projects, doing the work, or both; or, as employers, providing work). In practice all of these are combined in various ways. For example, an NGO might organize victim/offender mediation or conferences; but if the offender makes certain undertakings, a school may have to accept him so that he can fulfil his pledge to return to school, an individual businessman may give him a job so that he can pay compensation, or the local authority may have to provide a drug treatment or literacy programme as part of his reintegration with the community. If they don’t, and the offender fails, the responsibility does not lie on him or her alone.
Another definition of community might be a group of neighbours: one lawyer who saw the importance of definitions was having a discussion with a well known preacher about how to inherit eternal life. The preacher reminded him of the two first principles: to love God and to love your neighbour as yourself; but the lawyer wanted a definition: Who is my neighbour? The preacher answered by telling the story of the good Samaritan (Luke 10: 30-37), which shows that any person who helped a victim could be a neighbour, even though he was from an antagonistic religious group which had closer links ‘with foreigners north, east, and west than with brothers on the south’ (Peake 1962. 30b), and celebrated the Passover in a different temple, though ‘to many minds the religion of Judah and of Samaria was one and the same’ (ibid., para. 99d).
C. PRINCIPLES AND STANDARDS
Whoever provides the mediation or conferencing service, it is essential that it should observe certain guidelines. Some practice standards have been drawn up by Mediation UK (1998), and there is another set, perhaps better described as principles, from the Restorative Justice Consortium (1998). These do not claim to be written on tablets of stone; but they have been arrived at on the basis of both theoretical principles and practical experience, and form a good basis. If any services want to amend them for their own use, it would be desirable to think through the implications for both victims and offenders (and to send their conclusions to the organization concerned for consideration in the next edition).
There are several important principles that need to be observed, but I will mention three: informed consent, impartiality, and safeguards.
1. Informed consent
It should be self-evident that victims, having already suffered as a result of the crime, should not be under pressure to take part in a process if they don’t want to (although in the criminal justice process it is assumed that convicting the offender is the overriding priority, and that although pain to the victim should be kept to a minimum, it may not be avoidable). Time should therefore be taken to explain what is involved; and they should be given reasonable time to decide. This should become easier as mediation and conferencing become better known. There should also be informed consent to any reparation agreement; victims, as well as offenders, should have access to legal advice before signing an agreement; but it should come from a lawyer who understands the aims of restorative justice, and thinks beyond extracting the maximum amount of compensation from the offender.
The offender should also give informed consent. The reason for mentioning this in a paper about victims is that victims need some reassurance that the offender means it when he or she apologizes. As we have seen, consent cannot be entirely voluntary if the criminal justice process is not yet complete, because the offender will naturally expect that if he makes reparation, the case will be discontinued or the sentence mitigated. And, one might ask, why not? If a sentence can be reduced when an offender pleads guilty, or gives evidence for the prosecution, why not also when he or she agrees to a process which will potentially be helpful to the victim? Some victims do wonder how genuine the offender’s apology is; but many appear to feel confident that, whatever his motives for taking part, the process did make him stop and think (as was found in the first Home Office research, Marshall and Merry 1990: 158).
A modest encouragement to take part, like the traditional incentive to plead guilty, seems acceptable, but the choice for the offender must be between restorative justice and due process of law, not compulsion to take part by the threat of physical force, which is reported to have taken place in Northern Ireland. (A community boycott, or ‘de facto exclusion’ through ‘denial of goods and services within the community’ has also been mooted (Auld et al. 1999: 37-38), but I understand has not been used in this context.) Quite apart from the offender’s right to a fair process, this is not in the victim’s interest, because it undermines the genuineness of the human contact between them.
In the context of mediating a neighbour dispute, where both parties may have put themselves in the wrong, it obviously makes sense for facilitators to be impartial. But dos this extend to cases such as robbery, where one person has clearly harmed another who did not harm him? This is the point to introduce two ideas: separating the deed from the doer, and respect. When people feel that other people have a low opinion of them, they tend to have a low opinion of themselves, and to act down to it. If facilitators treat offenders with respect, while not minimizing their actions, they set the example for the victim to do likewise; this encourages the offender to respond, and makes it more likely that both the process and the outcome are satisfactory.
I have already mentioned several safeguards, which are elaborated elsewhere (Wright 1999). A mediation or conferencing service needs standards, training for facilitators, an equal opportunities policy, a complaints procedure (which should of course include an offer of mediation), and regular evaluation of the work – all these are essential for both the victim and the offender.
Restorative justice is a philosophy which many people believe has possibilities which are not found in the form of justice which we in the West regard as conventional. At a conference in October 2000 in Tübingen, Germany, all six continents were represented. But if it is to fulfil its potential it must maintain the principles which practitioners and other supporters have drawn up. Mediation and conferencing services need to remember all its special characteristics, but above all that it is there for victims as well as offenders. We admire the transformation of juvenile justice in New Zealand since 1989, but in its first year or two only about half the victims who took part were satisfied, and some actually felt worse. Some conferences were arranged without consulting victims’ convenience, and they were not always adequately prepared; some felt outnumbered by the offender’s extended family. These concerns were addressed by an amendment to the original legislation in 1994, spelling out the victim’s right to bring supporters and to be consulted as to a suitable date, time and venue (Stewart 1996). In the United Kingdom, some early efforts were also focused on the offender, even to the extent of ‘coaching’ victims to say what the facilitator thought would make an impression on the offender, rather than what they really felt. New laws and guidelines should take account of all the experience and research findings over the last two decades, and legislators and practitioners should be as willing as the New Zealanders were to modify them as new findings emerge.
It is essential to begin on a small scale, at a careful pace, with adequate resources, rather than to spread those resources too thinly, introduce the new ideas too hurriedly, and thereby to risk discrediting them.
In their book Getting to yes Roger Fisher and William Ury (1981) make a distinction between ‘positions’ and ‘interests’. A position is what I demand as a matter of principle: I have a right to it, because to accept anything less would be to admit that the other side had won; interests are what really matters: obtaining the object at a fair price, keeping my job, preserving the relationship, supporting my family. Some people take the position that offenders should be punished, even if this makes them more likely to resist arrest, intimidate victims and witnesses to avoid conviction, and reoffend as soon as they come out of prison. But it is in our interest to separate the person from what he has done, require him to put it right as far as possible, and reintegrate him into the community so that he can use his talents for other people as well as himself. These principles are being applied not only in the field of justice, but in schools, workplaces, and wherever there is conflict – which is pretty well everywhere! We will not prevent conflict, because it is part of the human condition; but we can reduce it, and above all we can work towards a society in which more and more people learn to handle it in a way which is in everyone’s best interests.
I am grateful to Ann Warner Roberts for making valuable suggestions, but responsibility for the content is mine.
8206 words (with refs) Belfast 2000 BJC 018 autorec
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