Where did restorative justice begin?
Many of us are familiar with the ‘creation myth’ of restorative justice: how in 1974 two young men who ran amok in a small town in Ontario visited their victims and agreed on suitable reparation. It really happened1; the myth is that this was where it all began. Already in the 1960s, some American Quakers had been showing people non-violent techniques for civil rights marches. In 1970 the Institute for Mediation and Conflict Resolution (IMCR) was created in New York to train people in mediation techniques, after civil disturbances of the 1960s; here, the Advisory Conciliation and Advisory Service (ACAS) was established in 1974; to say nothing of much earlier examples in places like the Friendly Islands, where offenders do not lose face when they make a public act of apology and reconciliation, but gain approval. There are many other examples from traditional societies, which were being written about from the 1950s onwards.2
The point I am making is that originally there was no hard-and-fast distinction between civil and criminal mediation. Restorative processes can be used in at least four main ways:
in decision-making, prevention
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;
as a response to conflict
They can be used to resolve a dispute. The emphasis is on how the disputants will act in future, and how they will communicate;
as a response to harm
When actual harm has been caused, the processes can be used to agree how best to put it right;
as a 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
Of these four, only one, the last, is limited to criminal harm. In the last two, one person may have harmed an innocent other person; or both may have contributed to the conflict. Indeed the principal difference between criminal and non criminal harm is that the state has taken upon itself the power to deal with the former, and the borderline is constantly shifting – witness the fact that in the United Kingdom some 3500 actions are criminal in 2010 which were not in 1997 when the New Labour government was elected.
Where are we now?
It seems to me that we are at a turning point. The words ‘restorative justice’ are beginning to be well known, and have even entered the political dialogue. But are they well understood? There are two levels of possible misunderstanding. Firstly, in the context of criminal justice, some confuse it with reparation, which in turn is more like punishment if the emphasis is on the unpleasantness of the task rather than the value of the work. Scrubbing graffiti while wearing conspicuous jackets is more like a public alternative to sewing mailbags. Genuine restorative justice is a diamond with many facets, including:
The fact that the process itself is important; it is not just a stressful path to an outcome. Relationships are vital.
The informality of the process also brings it closer to the lives of those involved. Safeguards are needed, however: standards, code of practice, training, supervision and support, and a complaints procedure.
Involving the community3: we need to provide alternatives to graffiti-scrubbing. The ideal would be doing work side-by-side with volunteers, and/or meeting the beneficiaries of the work, being appreciated, making relationships. Other ways of involving the community include
family group conferences, which bring in more members of the community, and
mediation services provided by NGOs, especially when they use trained volunteers as mediators: There is then a higher level of community involvement, and therefore a higher score on the ‘restorativeness’ scale. That is one level at which we have some work to do to make the concept well understood.
dialogue with victims is beginning to be given more emphasis, but needs to empower them to decide the outcome, subject to safeguards, not just to have a conversation, however productive, and then be told by a judge that a different penalty will be imposed. The leading case, from New Zealand, is that of Mr Clotworthy, who agreed reparation with his victim (paying for plastic surgery), but was prevented by a judge who said that punishment, in the form of imprisonment, must take precedence, so that he was unable to redeem himself by paying, and his victim was left empty-handed – and scarred.4
Key aspects of what was later called restorative justice are the importance of the process itself, and the direct participation of the ‘owners’ of the conflict, which shouldn’t be ‘stolen’ from them by professionals. These points were made in a widely quoted article in 1977 by Professor Nils Christie, entitled ‘Conflicts as property’.5 The Norwegian mediation service accordingly deals with both civil and criminal cases, and requires that mediators be volunteers. In the same year the (American) Victim Offender Reconciliation Program was described in an article in the Howard Journal, which I can safely say received much less attention.6
But there is a second level of ambiguity. The concept has been picked up by those working in other parts of society, for example by training children to mediate, as well as teachers and parents, and by mediating in communities and workplaces; in other words, it has reconnected with its roots as a way of enabling people to agree their own solutions rather than have them imposed by an authority. This is often called ‘restorative practices’ or ‘approaches’. But some people are using ‘restorative justice’ to include all of this as well. So there is a further hill to climb, to get people used to thinking of restorative justice as including all restorative practices. But if we are referring only to the criminal or the civil aspect, we then have to make it clear, perhaps by distinguishing ‘restorative criminal justice’ and ‘restorative social justice’, RCJ and RSJ.
Where do we need to go?
Firstly, we need to flesh out the concept; and secondly, to consider how to make restorative practices available throughout the country.
Points which need to be considered in regard to the concept include:
Familiarizing people with the new paradigm and upholding restorative values. As the ‘voice’ of restorative justice, we need not only to campaign for it, but to try to make sure that it is fully understood. Firstly, it understands ‘justice’ as ‘fairness.’ Secondly, 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. A dialogue is encouraged, conducive to empathy on both sides. 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. We haven’t been brave enough in challenging the received wisdom. People say ‘Nobody denies that offenders should be punished, but …’; we need to stand up and say ‘I am this nobody’. This is not to say that wrongdoing should have no consequences, but they should be measures which heal, and do not cause further harm.
Enabling reparation and rehabilitation: restorative justice is not just a matter of reparation by offenders, but ‘the community’ (i.e. the rest of us, individuals, organizations, local authorities) has to make it possible for them to do so.
Feedback for social (preventive) policy: Staff and volunteers engaged in delivering restorative conferences will build up a picture of social needs conducive to crime; there should be channels by which they can pass this on to opinion-formers and social policy-makers. The facilitators of family group conferences in New Zealand have begun to do this.7
Adequate support for Third Sector: Volunteers are good value for money, but they cannot function effectively without essential infrastructure: office, staff, hire of rooms, and so on. Skimping on this means that staff have to spend excessive time applying for funds rather than providing the service.
Preventing backsliding: the movement needs to be on its guard against tendencies to revert to former punitive, authoritarian, adversarial ways of thinking.
Including serious harm, especially ‘crimes of the powerful’. This can include abuse of power in any form, from large companies which exploit their staff or their customers or endanger them by unscrupulous disregard of safety precautions, to police, prison officers or soldiers in occupied or disputed territory who abuse their power over other people.
As regards making restorative justice available everywhere, it can be done primarily through the state (nationally and locally), and through the voluntary sector. If it is done through the state, it is ‘official’ and in some cases provided by law. Restorative justice workers who are within the system have easier access to colleagues in the Crown Prosecution Service, police, probation and the courts, to obtain referrals – although in a really restorative system, automatic referral would be the default mode. Potentially, statutory services are better resourced, although resources are currently under great pressure as we know only too well. There is a danger that restorative justice workers will be on their own in a large organization operating on a different philosophy to theirs. As regards involving the community, the statutory sector makes only limited use of volunteers; they are used for youth offending panels, but these are only partly restorative. The statutory sector does little in the way of restorative community mediation.
The other way of making restorative justice available is through voluntary organizations. From the start, involvement of members of the community has been a strong theme in restorative justice theory and practice. Voluntary groups have great potential for both RCJ and RSJ. There are local mediation services around the country; since the unfortunate demise of Mediation UK, no one seems to know how many. They use trained volunteer mediators to handle disputes between neighbours, workplace disputes and others, and they can promote mediation in schools and in the community generally. Volunteers are available out of office hours; when they move on, they take their heightened understanding with them. Voluntary organizations provide a link between the voluntary and statutory sectors.
This is however not all plain sailing. It can be difficult to establish them, and funding is a constant worry. They need a system of accreditation to ensure that they adhere to a code of practice, both for their mediation practice and for their governance – which should also be managed in a restorative spirit. This need not be a major undertaking; when Victim Support started in 1980, its code of practice was a single sheet; by degrees, in consultation with members, it was developed in line with new needs. They need a national body to be their standard-bearer, and supervise and support them in living up to their standards.
What would a restorative society be like?
As we move towards a restorative society we could see less reliance on power, authority, coercion, negotiating from strength, and control, and move increasingly towards the restorative principles of dialogue, empathy, problem-solving and respect. This would mean much more than mediation. Alternative methods of conflict resolution would be explored, such as Non-Violent Communication and various ways of using circles.8 Decision-making could be not merely by single transferable vote, but by consensus voting systems, which favour the options which win the most consensus, rather than the most divisive ones.9
This movement would be led by a network of local mediation centres. They would be accredited by a national organization, with regard both to their standards of mediation and their governance. Ideally, as in Norway, each local authority would have an obligation to fund them. Let us look at some possible applications from restorative social justice and from restorative criminal justice.
As an everyday example of how things could be different, let us look at a typical organization and its grievance procedure. The basic grade workers will be line-managed by a supervisor, who in turn will be line-managed, and so on. The danger in this authoritarian style is that suggestions are seen as criticism, and questions as insubordination. The grievance procedure will say things like ‘If you have a grievance, raise it with your line manager; if it relates to him or her, raise it with the next in line’, and so on. There is a natural tendency for the senior manager to support the line manager, unless the latter is clearly in the wrong. The procedure is adversarial: Upheld or Not Upheld; it does not encourage recognition of ‘faults on both sides’ or recommendations for improvements within the organization. If the grievance is upheld, relations between the employee and the manager will suffer; if not, the employee is likely to feel more aggrieved. The grievance can continue in this way up the chain of command to the board of management, with the possibility of additional causes for dissatisfaction if the employee feels that the procedure itself has not been satisfactory. The procedure may provide for a final hearing, possibly by the chairman of the board, who again will be under pressure to support the management. After that, if the employee still felt unfairly dealt with, he or she could apply to a tribunal; this in itself would be harmful to the organization’s reputation and the morale of other staff, whether or not the grievance was upheld.
In a restorative organization, the grievance is less likely to arise in the first place. Suppose, as a typical case, an employee wants an extra day off (which will affect other people’s workload), or feels that their own workload has been increased unreasonably. The matter would be raised initially in a circle meeting, which would try to find a way of meeting everyone’s needs. Sometimes agreement might still not be reached. Then the manager would have to make a decision, but only after listening to the wisdom of the circle, so that further action is less likely to be needed. However, if the employee felt that decision was unfair or contrary to company policy, an independent mediator would interview him or her, and then the manager, to explore what could be a settlement that would meet the needs of the employee, the manager and the organization. There could be some ‘shuttle diplomacy’, if necessary, and then they would be invited to meet in a mediation session. As always with mediation, this would not focus on the details of what actually happened (perceptions often differ) or who was to blame; instead they would ask both parties to focus on a workable arrangement for the future. Of course no one suggests that there would be a 100 per cent success rate. Ultimately someone has to make a decision, but all the indications are that this approach would be much more likely to improve performance and morale.10
One project which adopted the use of circles is Roca, a youth organization in a rough neighbourhood of Boston, MA, which uses them not only with young people but in its own management, and has persuaded the local authority and even such unlikely places as a youth detention facility to adopt them. A researcher found that ‘when Circles start to be used in seemingly inflexible bureaucratic organizations, they initiate – quietly and almost invisibly – a profound process of change’ 11. She writes that ‘Circles are uniquely able to “hold” conflict in a constructive way’.12 She admits that major change processes require champions, who face enormous challenges, but ‘organizations need a vision for the future; they need to reflect on their core values, achieve clarity about their purpose, and design effective action toward their goals. They must learn to take a hard look at themselves and examine the truth about what they have achieved in order to discover how it may – or may not – measure up to what they say they would like to do’.13
Schools, likewise, can use circles both for pupils and staff. St Edmund’s Primary School, North Lynn, Norfolk, uses circles for children, regularly and when there has been an incident; but also for staff. In addition to staff meetings they have feelings circles, fun circles and problem-solving circles. Encouraging results were reported after only a few months.14
Perhaps the best known development in this direction is the city of Hull, which as set itself the ambitious target of becoming a restorative city, and has already made impressive progress in its schools and services for young people.15
In the criminal field, there is a tendency to limit restorative interventions to less serious offences, despite research showing that it works better with more serious ones, probably because there are deeper emotional issues to be resolved. As for serious repeat offenders, Professor John Braithwaite suggests that as there are not many of them, the following restorative approach could be used. The next time they were caught, the police would offer them a choice. They could carry on offending, and almost certainly be caught and reconvicted, or they could work with the Restorative Justice Group. This would bring together a circle of people who care about them and whom they trust, who would work together on a package of reparation and rehabilitation. The judge would then be asked to pass a sentence of intensive supervision instead of prison.16
Braithwaite gives examples of the use of restorative methods in relation to white-collar crime, for example when a number of Australian insurance companies were selling useless insurance policies , notably in Aboriginal communities. Top management from one company visited the communities and met the victims; they returned to Canberra deeply ashamed. The company voluntarily compensated 2000 policyholders and set up an Aboriginal Consumer Education Fund to ‘harden targets’ for future attempts to rip off Aboriginal people. It was later found that another company was defrauding members of a police union; a huge payout was made and regulatory changes were made. All this was achieved without going to court, except for a couple of individuals who refused to co-operate with the restorative process.17
The official review of regulatory justice in England and Wales by Professor Macrory recommended restorative justice in case of regulatory non-compliance, as a pre-court diversion, instead of a monetary administrative penalty, and within the criminal justice system as a pre- or post-sentencing option.18 The Restorative Justice Consortium also recommended it in cases of corporate manslaughter.19
Restorative justice is concerned with harm, which is not always defined as criminal. Take for example Bhopal, the Indian town where many thousands have become ill and died, and many birth defects have been caused, by a disastrous leak of poisonous chemicals. The case was dealt with by civil litigation, which resulted in a wholly inadequate amount of compensation being paid. The company responsible, Union Carbide, has been taken over by the Dow Chemical Company, which denies liability. Attempts have been made to extradite those responsible to stand criminal trial in India. These have been successfully resisted, and even if those responsible were jailed, it would not benefit the victims whose water is still poisoned. In the spirit of Braithwaite’s proposal, would it not be better to invite the company directors, if any of them were brave enough, to visit Bhopal. Their company, ironically, prides itself on high ethical standards, charitable contributions and ‘putting its water solution technology to work to bring clean, fresh water to those in need.20 Then we would see whether their consciences, assisted by some publicity, would allow them to deny that whatever the legal position, the Dow Chemical Company has a moral responsibility to clean up the poisonous aftermath left behind by its subsidiary more than twenty-five years ago. Would it work? It might not; but the other methods haven’t worked yet, and it is possible that the desire to be thought well of is a stronger motivator than fear.
I have tried to show the scope of restorative justice at many levels of society, from bringing up children to the activities of multi-national corporations – and I haven’t touched on the international possibilities. It is often said that conflict in itself is normal; what matters is how it is handled. We are beginning to build up experience of restorative decision-making, handling of conflicts and responding to crimes. We need to think more about how these methods can be developed and spread, and let everyone know of their successes. This could be a transformation of society comparable to the introduction of the welfare state, and I hope the Restorative Justice Council will play a leading role. If I may repeat what I have said elsewhere, in the last two or three decades we have begun to learn how to live in harmony with the planet; our next challenge is to learn how to live in harmony with each other.
Towards restve soc AGM 109.doc
1 D.Peachey (1989) ‘The Kitchener experiment.’ In: M Wright and B Galaway, eds. Mediation and criminal justice: victims, offenders and community. London: Sage.
2 M.Wright (1996 ) Justice for victims and offenders: a restorative response to crime. Winchester, Waterside Press, chapter 4.
3 In this context this much-discussed word includes individuals, local organizations, businesses and local government.
4 J.Braithwaite (2002) Restorative justice and responsive regulation. New York: Oxford University Press, p. 147.
5 N.Christie (1977) ‘Conflicts as property’. British Journal of Criminology, 17(1), 1-15.
6 M. Wright (1977) ‘Nobody came: criminal justice and the needs of victims.’ Howard Journal, 16(1), 22-33.
7 A.MacRae and H Zehr (2004) The little book of family group conferences, New Zealand style. Intercourse, PA: Good Books. Chapter 5.
8 K.Pranis, K (2005) The little book of circle processes: a new/old approach. Intercourse, PA: Good Books. .
9 P J Emerson (1991) Consensus voting systems. [Belfast: De Borda Institute].
10 Thanks to Annette Hinton and Corinne Rechais for helpful comments.
11 C. Boyes-Watson, (2008) Peacemaking circles and urban youth: bringing justice home. St Paul, MN: Living Justice Press.. p 179.
12 ibid, p. 177.
13 ibid, pp. 175, 185.
14 Lisa Cook, ‘ “Beyond all belief” – restorative practices at St Edmund’s Primary school, Norfolk, UK, http://www.restorativejustice.org/RJOB/201cbeyond-all-belief201d-2014-restorative-practices-at-st-edmund2019s-primary-school-norfolk-uk , accessed 12.9.2010
16 John Braithwaite (2002) Restorative justice and responsive regulation. New York: Oxford University Press, pp. 36-38.
17 ibid, pp. 22-24.
19 Restorative Justice Consortium (2005) Corporate manslaughter: the government’s draft Bill for reform. London: the Consortium.
20 http://news.dow.com/dow_news/corporate/2010/20100322a.htm and http://en.wikipedia.org/wiki/Bhopal_disaster accessed 14 September 2010