Restorative justice beginnings
Originally, the application of restorative justice was limited: it was a reaction to criminal wrongdoing. The story of how it began in 1974 after two young men in Elmira, Ontario, made reparation to their 22 victims has often been told1. Another landmark was established in 1989, when Family Group Conferences were introduced in New Zealand. They were for young people in trouble, whether or not they had committed an offence, and were distinguished by the fact that the young person’s extended family was invited to attend, and the process included ‘private time’, in which they could speak among themselves with no officials or social workers present. Other pioneers developed the idea, for example in schools and care homes by the International Institute for Restorative Practices2. Anthropologists traced its roots in other cultures in Africa and elsewhere3. In the United Kingdom, local community-based groups began to offer mediation, especially to neighbours who were in dispute about such matters as noise; and mediation was increasingly used in other contexts.
Distinguishing features of restorative justice
What are the key features of restorative justice, which make it different from criminal justice, and without which a programme cannot properly be called restorative? The starting point is dialogue, facilitated by a mediator. In the criminal justice context, this means that the mediator listens to the victim and the offender, inviting them to meet (or at least communicate indirectly), discussing who else was affected and what can be done towards putting things right (especially, but not only, by the offender). Ideally this leads to a sense of closure for the victim, and the ‘earned redemption’ and reintegration of the offender. Restorative justice is not punitive. This does not means that it is ‘soft’: the demands it makes on the offender are not to endure an amount of pain or discomfort, but to accept responsibility for the harm caused, especially when it is caused to another individual. The process is voluntary on both sides, and offenders who cannot face it are dealt with in court in the usual way. Many victims are willing to take part when it is explained well and arranged to take account of their needs. The emotion it aims to encourage in the offender is not fear for him or herself, but empathy for the victim; and it is not uncommon for the victim to feel empathy as well, having heard about the offender’s background. The community also has an essential part to play, but this is the constructive one of enabling the offender to make reparation, rather than helping him to overcome the damaging effects of punishment, especially imprisonment.
Instead of the conventional questions, What law has been broken? Who did it? How should they be punished? in restorative justice the questions are What happened? What were you thinking and feeling at the time? Who has been affected by what happened? What do you need for the harm to be repaired, so you can move forward? What needs to happen now, and what can you do? The questions are asked, in a similar form, not only to the offender but to others affected; not only to the direct victim but to others who are close to the victim, and often the offender’s own family. In cases where the victim and offender are known to each other, it is often found that the ‘victim’ had been bullying or harassing the ‘offender’, who finally lashed out4, so that it is misleading to say which is the offender and which is the victim, and these terms are best avoided.
The ‘restorative’ concept spreads
The term ‘restorative justice’ is also beginning to be used outside the criminal justice context, to describe mediation in other settings, taking ‘justice’ to mean fairness, rather than the official justice system. It has broadened into the wider concept of restorative practices, which also operate in a preventive way. It can be applied in schools, between neighbours, or in the workplace. The principles, however, are very similar, as we shall see below. The Restorative Justice Consortium in England and Wales uses ‘restorative justice’ in this broader sense of restorative processes, to include for example:
- Restorative processes need not wait until there has been a conflict; they can be used as a decision-making process, which may avoid the conflict
- response to conflict
- They can be used to resolve a dispute. Emphasis on how the disputants will act in future, and how they will communicate
- response to harm
- When actual harm has been caused, the processes can be used to agree how best to put it right
- response to criminal harm
- When the harm has been caused by a criminal act, they can be used
- instead of criminal procedure,
- as part of criminal procedure
- after criminal procedure
- When the harm has been caused by a criminal act, they can be used
Of these four, only one, the last, is limited to criminal harm. Perhaps we can attempt a definition, with ‘restorative justice’ in the broad sense just mentioned, and ‘mediators’ used to include facilitators of various kinds of restorative process:
Restorative justice is a process in which those most involved in a problem come together, with the help of mediators, to find their own answers, respecting each other’s needs and as far as possible resolving how to repair any harm caused.
It can be thought of in four ways: as principles, as a process, as a psychological approach, and as communication. It can be argued that many of these apply whether or not the criminal justice system is involved, and whether the process used is one-to-one mediation, conferencing, or another model. We may imagine, for example, how they would be interpreted in contexts such as criminal justice, community disputes, schools, workplaces and so on. As an example, we will look more closely at schools later.
Principles or values
Restorative practitioners in any of these fields would put similar values high on their list: mutual respect, acknowledgement that everyone has a right to their feelings and their point of view, together with awareness of shared responsibility for the mediation session5.
There are two aspects to the process: the actual restorative encounter, and the social structures for making it available around the country.
The basic process often involves asking participants to sit in a circle. This recognises that everyone has an equal right to contribute, and it can often be agreed that everyone speaks in turn. At least one organization, the Roca project for young people in a deprived area of Boston, MA, uses circles throughout its work for youth development, empowerment, accountability, healing, and for managing the system 6. The circle can be used to agree the ground rules, and then to apply them. It is often described as ‘family group conferencing’, especially in the criminal justice context, or ‘community conferencing’ if more indirectly affected members of the community are brought in. Similarly. a restorative manager could run staff meetings on restorative lines.
The other aspect of the process of delivering restorative practices is the administrative structure. Those who advocate the greatest possible community participation would like to see throughout each country a network of independent NGOs, affiliated to a national NGO which would require them to maintain standards. In England the Restorative Justice Consortium is working for the acceptance of practice standards; there are some local NGOs, but they are not by any means nationwide, and many of them are limited to community mediation. In Norway, a Municipal Mediation Service Act was passed in 1991; an Act of 2003 made mediation a national service7. Mediators have to be volunteers; management is by local municipalities, supervised by a national government body, the Conflict Council (Konfliktråd). In Germany there are a few independent NGOs and a national one (Servicebüro für Täter-Opfer-Ausgleich und Konfliktschlichtung), but little or no use is made of volunteers. For schools, local mediation services can promote mediation in schools in their area, and in other contexts such as workplace and community conflicts; indeed they are increasingly being pressed to do so as they search for sources of funding.
Restorative justice works on an essentially different psychological paradigm. The punishment/deterrence one is based on making people afraid of what will be done to themselves if they do wrong, whereas the restorative one is based on encouraging them to feel for the other person, whom they have harmed, and this often leads to the other person feeling for them, in other words empathy. Perhaps empathy should therefore have a place in our definition. In schools the same principle applies: to secure good behaviour because it will be in everyone’s interest, not under threat of punishment.
The other aspect is harder to put into a single word: something on the lines of encouraging the person’s feeling of self-worth; but I think that underneath this is an aspect which I haven’t seen expressed, namely that part of the enhanced self-worth comes precisely from the fact that he or she is feeling empathy for someone else, and he didn’t realize he was capable of this. In the context of a criminal offence it is quite common for the victim (if I can use that word as shorthand) to show empathy for the offender, and in some cases this can be how the offender learns what empathy is, never having experienced it much in his life. The ex-offender Peter Woolf describes how he felt when he realized the harm he had caused to his victims, and how he was deeply affected by the fact that, despite this, they showed more concern for him than some members of his own family8
It is striking that authors who are also practitioners agree that punishment is not an effective tool for teaching9. Nor does it help in getting people to accept responsibility for what they have done: punishment is the enemy of truth, and makes it harder for people to accept responsibility for the harm they have caused.
The psychologist Marshall Rosenberg suggests that making demands with the threat of punishment is ‘life-alienating’, while making requests is ‘life-enriching’.10 Teachers in schools, for example, are finding that they get better discipline when they recognise the needs of their students, and make the students aware of their own needs, instead of threatening punishment. The word ‘restorative’ is increasingly being used to describe this approach to relationships.
The fourth aspect of restorative justice is communication. There are basic skills which mediators learn, such as active listening, re-phrasing in neutral language, separating the person from the act, and so on. the idea is taken further in Marshall Rosenberg’s ‘non-violent communication’11. On the basis of experience as a clinical psychologist, he proposes ways to maintain good relationships, or to rescue those which have run into difficulties. His approach could be described as inviting another person to feel empathy by showing empathy to them. You identify your own feelings, and express them, and show the other person that you are trying to sense their feelings. You also express your needs which give rise to those feelings, and try to show that you recognise their needs too. You don’t describe the other person, because this can be judgemental, but you describe their action, in neutral language, and then make a request that would meet your needs. For example, instead of saying ‘You are annoying when you drum your fingers on the table’, you might say ‘I feel annoyed when you drum your fingers on the table, because I need to finish this article, so would you please not do it while I am working?’
Rosenberg analyses personal interactions into four elements:
- Observing without evaluating (judging)
- Identifying and expressing feelings
- Taking responsibility for our feelings, from
- Blaming ourselves
- Blaming others
- Sensing our own feelings and needs
- Sensing others’ feelings and needs
- Requesting that which would enrich life
Language is important. One method used by mediators is reframing violent statements in neutral language. Rosenberg gives a striking example12 concerning a conflict between Christian chiefs and Muslim chiefs in northern Nigeria.
One hundred of the four hundred people in the community had been killed, and three of the people who were eventually persuaded to meet knew that someone who killed their child would be in the room. Rosenberg began by asking those on each side to express their needs. One of the Christian chiefs shouted at the Muslims: ‘You people are murderers!’ Rosenberg asked, ‘Chief, are you expressing a need for safety that isn’t being met? You would hope that things could be resolved with non-violence, correct?’ He said, ‘That’s exactly what I’m saying.’
Rosenberg asked if a member of the other tribe would repeat what the chief from the first tribe had said, to make sure he had heard. One of them screamed, ‘Why did you kill my son?’ Rosenberg repeated his summary of what the first chief was feeling and needing; eventually the chief was able to do so.
Then he asked the other chiefs what were their needs. One of them said ‘They have been trying to dominate us for a long time, and we’re not going to put up with it any more.’ Rosenberg again summarized: ‘Are you upset because you have a strong need for equality in this community?’ ‘Yes.’
After about an hour of shouting, each side had heard just one need of the other, when one chief exclaimed, ‘Marshall, we can’t learn this in one day. And if we know how to talk to each other, we don’t have to kill each other.’ Several of them volunteered to be trained.
In the school context, the restorative process has been formalized by Ron and Roxanne Claassen in Fresno, California, as ‘Discipline that restores.’13 This begins with students and teacher agreeing on the process at the beginning of the school year; the students are invited to agree their own ground rules and set their own targets for the year. Then if there is a pupil-teacher conflict, the following 8 stages follow as agreed. They are listed in a ‘flowchart’ of increasingly serious but non-punitive interventions, including a ‘constructive reminder’ of the ground rules, the ‘four options’, a family conference, and ultimately the school authority structure. At each stage, if the matter is resolved, this is celebrated; stages may be omitted if the matter is too serious of the student too uncooperative or defiant. The stages include:
- Usual constructive reminder of agreed rules
- Formal reminder of agreement
- Active-listening and/or I-message
- Four Options model (see below)
- Student-teacher meeting
- ‘Thinkery’ (reflection with another staff member)
- Family conference
- School authority structure
The teacher remains in charge of the framework of the student-teacher relationship, but respects the student by offering choices at every stage. Attempts to control through punishment can make matters worse;
One tool is the ‘Four Options’ model, which identifies four basic ways in which a conflict can be handled:
- I impose on you,
- we go to an arbitrator,
- we go to a mediator,
- we agree between ourselves.
When an issue arises, a student is invited to choose which method to use; usually they choose No. 3 or No.4. For uncooperative students there may be a spell in the ‘thinkery’ – not a punishment but a place where another teacher helps the student to think through what happened, who was affected, and a plan for working together. (This is comparable to Rosenberg’s ‘Do-nothing room’, with a teacher who has mastered NVC, to protect the rights of students who want to learn14) The method could be adapted to other organizations.
Belinda Hopkins takes this further and proposes how restorative approaches could be integrated into the residential system for looking after children, through a restorative mindset, dialogue, conferencing, circles and a multi-agency approach15.
The effectiveness of restorative practices in schools is shown by Collingwood Primary School, in the English city of Hull. In 2004 it was stigmatized as ‘needing special measures’, but by 2007-2008 there were
- Fewer classroom exclusions 98.3%
- Fewer lunchtime red cards 77.8%
- Fewer racist incidents 75.0%
- Punctuality improvement 86.7%
At the Riverside Project, also in Hull, 3500 staff have been trained at 12 primary and 2 secondary schools, children’s homes, family resource centres, police, volunteers, and others. Staff in all children and young people’s services are being trained in restorative practices. Hull claims that it is becoming ‘the world’s first restorative city’, and there will be a conference later in 2010 to report on this.
Where restorative methods are widely practised, we may hope to see the development of restorative communities, where people will routinely have the opportunity to agree together16, People in the restorative movement believe that everyone should have access to restorative practices and restorative justice. Restorative practices have the potential to build social capital, strengthen relationships and communities, especially when they are put into practice by NGOs and volunteer mediators17. It has been suggested that it should include an unusual but necessary feature of social policy: namely community-building and feed-back on crime prevention to policy-makers.
Originally, the application of restorative justice was limited: it was a reaction to criminal wrongdoing. Now it has broadened into the wider concept of restorative practices, which also operate in a preventive way. Where these are widely practised, we may hope to see the development of restorative communities, where people will routinely have the opportunity to agree together. The essence of it is a different way of relating to each other, especially in a situation where traditionally one party exercises power over the other: schools, families, workplaces and so on. Everyone should have access to restorative practices and restorative justice. Restorative practices have the potential to build social capital, strengthen relationships and communities, especially when they are put into practice by NGOs and volunteer mediators: In Norway, for example, the law requires that mediators be volunteers. These principles are underpinned by a need for respect, consideration, co-operation, support and belonging which many, with Marshall Rosenberg18, would identify as the key to universal human values. As we have seen, it has been suggested that it should include community-building, and feed-back to social policy-makers.
In the last two or three decades we have learnt the importance of living in harmony with the planet; now it is vital to learn to live in harmony with each other, and restorative processes can show us the way.
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1 Peachey, D (1989) ‘The Kitchener experiment.’ In : M Wright and B Galaway, eds. Mediation and criminal justice: victims, offenders and community. London: Sage. See also Zehr, this conference.
2 Wachtel, T (1997) REAL justice: how we can revolutionize our response to wrongdoing. Pipersville. PA: Piper’s Press.
3 Wright, M (1996). Justice for victims and offenders: a restorative response to crime. 2nd ed. Winchester: Waterside Press, pp. 67-75.
4 For an example see M. Zernova (2007) Restorative justice: ideals and realities. Aldershot: Ashgate, p. 99.
5 Hopkins, B (2004) Just schools: a whole school approach to restorative justice. London and Philadelphia: Jessica Kingsley Publishers,.
6 Boyes-Watson, C.( 2008).Peacemaking circles & urban youth: bringing justice home. St Paul, MN: Living Justice Press.
7 Bolstad, T (2004). ‘Norway’. In: D Miers and J Willemsens, eds. Mapping restorative justice: developments in 25 European countries. Leuven: European Forum for Restorative Justice and Victim-Offender Mediation.
8 Woolf, P (2008) The damage done. London: Bantam Books.
9Claassen, R and R (2008) Discipline that restores: strategies to create respect, cooperation, and responsibility in the classroom, South Carolina: BookSurge Publishing,. (www.disciplinethatrestores.org ); Faber, A and E Mazlish (1980) How to talk so kids will listen and listen so kids will talk. New York: Avon Books; Hopkins, note 5 supra.
10 Rosenberg. M (1999) Non-violent communication: a language of compassion. Del Mar, CA: PuddleDancer Press.
11 Note 10, supra.
12 Rosenberg. M (2005) Speak peace in a world of conflict: what you say next will change your world. Encinitas, CA: PuddleDancer Press, p. 121-5.
13 Claassen, R and Claassen, R (2008) Discipline that restores: strategies to create respect, cooperation and responsibility in the classroom, South Carolina: Booksurge Publishing.
14 Rosenberg, note 10 supra. p. 125.
15 Hopkins, B (2009) Just Care: restorative justice approaches to working with children in public care. London: Jessica Kingsley.
17Mirsky, L (2009) ‘Hull, UK: toward a restorative city.’ http://www.safersanerschools.org/library/hull09.html (accessed 28.1.2010)
18 supra note 10.