Restorative justice: victims’ needs and rights; experience of building up mediation services in the UK

Presentation to Regional Forum on ‘Implementing Alternative Measures in Penal Cases: introducing and sharing experiences on restorative justice and victim-offender mediation application for juveniles and beyond’, organized in Tirana by the Albanian Ministry of Justice and others, 25-26 February, 2009

Reconciliation and forgiveness are ancient traditions, in Albania as elsewhere: they are a ‘manifestation of magnanimity, nobility, fortitude, patriotism and evidence of the civilization level of Albanian people.’ 1 Punishment and revenge are also very old human practices, but it should not be assumed that they are either effective or justifiable, or that they meet the needs and wishes of victims2,3 This paper will consider restorative justice, crime and responses to crime, especially from the point of view of the victim, with reference to recommendations of the council of Europe and the United Nations, with comments on the implementation of restorative measures in England and Wales.

Understanding restorative justice

Restorative practices include restorative justice, which focuses on repairing harm, but also on the process4,5 . They also include mediation6 in different contexts, such as communities and schools.

Where possible the outcome is reached by agreement. It is based on a new set of questions: not

has a crime been committed?
who was to blame?
how should they be punished?

but:
what happened?
who has been affected by what you did?
what do you think needs to happen to make things right?

The message of punishment is ‘If you behave like that, we will inflict pain on you’; the restorative message is ‘If you repair the harm, we will help you and re-accept you’. Repairing the harm may include an apology, compensation for the victim, work for the victim or the community, or co-operating with a programme that will help the offender not to commit more offences.

It is also worth spending a moment thinking about the meaning of ‘crime’. Almost all crime causes harm to someone (or to a country, or to animals or the environment). There are other forms of harm which have not been defined as criminal; they may be dealt with by lawsuits for compensation under civil law. We should remind ourselves that crime does not only mean burglary, robbery and violence; it also means actions by large companies, such as frauds, or failure to ensure the safety of workers (in a factory) or passengers (on a train or a ship). These can also be dealt with by restorative processes 7 Even in the most serious cases, such as murder and manslaughter, a restorative process can help both offenders and the relatives of their victims, although here the process will be an addition to another sanction, not an alternative8. There is another category of crime, which is not usually recognised by legal textbooks: crimes where the victim and offender know each other. These can be especially suitable for mediation: often there is a conflict in which both parties are to blame, and it is in the interests of both to resolve their conflict, rather than for one of them to be responsible for the other getting a criminal conviction.

When an action is defined as criminal (and when it is reported to the authorities), it means that the state can deal with it – usually by punishment, but punishment is not the only response, and it is not necessarily the most effective one. If the punishment consists of imprisonment, it often makes the situation worse: it separates the offender from people who could have a good influence on him, it gives him a stigma which makes it harder for him to find work. Courts can impose rehabilitative sanctions in the community, which may be constructive (to attend a course of training, or to learn to read and write), or restrictive (not to go out after 19.00 hours). Now they can also be restorative.

Victims’ perspective
This is what many victims want. An ICM survey of 1,085 victims of non-violent crime in the UK, for the Ministry of Justice in England, found that 81% would prefer an offender to receive an effective sentence rather than a harsh one, and nearly two thirds (63%) disagreed that prison is always the best way to punish someone. An overwhelming majority of respondents (94%) said the most important thing to them was that the offender did not do it again. This figure is higher than the last survey in 2006 (91%). Many surveys (for example Shapland et al. 20079)have found that the great majority of victims who have experienced a restorative process found it helpful, enabling them to tell the offender the effects of his or her actions, and ask for answers to questions, and the satisfaction rate is much higher than when the cases went to court (although it has to be remembered that cases are only referred to mediation when the accused admits being involved in the offence). However, victims should not be ‘used’ to help the rehabilitation of the offender, and no pressure should be placed on them to take part 10
Since so many victims benefit from it, a restorative process should be offered to all victims, at any stage of the process 11, which is unfortunately not the case in the United Kingdom. This requires the availability of restorative justice services throughout the country, which will be considered in the next section. There should be general public awareness of this; victims and offenders in particular should have the process explained to them 12; and all concerned should be aware of it: criminal justice personnel, police, lawyers, judges and social workers 13. Awareness of restorative methods should start in schools 14, and these Recommendations should themselves be widely disseminated 15, and translated into all languages of the Council of Europe, where this has not already been done 16

It should be remembered that there is a minority of victims who are not satisfied with the process, and everything possible should be done to keep this number as low as possible. Thus there is a need to maintain high quality through standards 17 which are the basis of the training, support, supervision and professional development of mediators 18 . Mediators should know how to handle a power imbalance between the victim and the offender and ensure their safety during the process 19 . There should be procedural safeguards20 and continuing research and monitoring 21. There should be a complaints procedure22 (and this should itself be based on restorative principles, which CEPEJ does not mention). Special attention should be given to protecting minors 23; The guidelines should also mention other vulnerable participants, and should point out that victims as well as offenders should be protected.

An important safeguard is that all victims and offenders should be treated equally before the law: those who refer cases to mediation should make sure that victims or offenders who come from an ethnic minority (black, Asian or Roma, for example), or another disadvantaged group such as homosexuals and people with disabilities, have as much opportunity as anyone else to take part in a restorative process. During the process they should be treated equally by mediators; mediators should be trained to be aware of their own prejudices.

Delivering restorative justice

What is necessary for restorative justice to be delivered? Firstly, there needs to be a good understanding of it. This does not mean that there is only one way of doing restorative justice; we are still learning how to do it better. But it does mean that the basic principles have to be understood; otherwise we sometimes find measures which are called restorative but are not really restorative, for example because there is not enough effort to encourage victims to take part, or because the measure imposed on the offender is a disguised form of punishment..

Secondly, as already mentioned, general awareness of restorative processes is important: everyone should know about them.

Thirdly, its relationship to the criminal justice system should be clear24. As we have seen, in cases where the victim and offender know each other (or both are offenders and both are victims), they should be able to refer themselves to mediation (and here, with respect, I question the Council of Europe recommendation which says that a decision to refer a criminal case to mediation should be reserved to the criminal justice authorities 25). After that, in England and Wales, it is possible for the police or prosecutor to ‘caution’ or ‘warn’ the offender, and in some areas this is being done ‘restoratively’, which means encouraging the offender to understand that he has not only broken a law, he has caused harm to someone. In some cases the victim can be invited to take part.

In some countries prosecutors can decide to defer prosecution, to allow an opportunity for a restorative process to take place, but this is not yet used in England and Wales. The court can defer the sentencing decision (for up to six months in England and Wales), to allow the offender the opportunity to change his life, and this also provides a space in which mediation can take place). A sentence can be suspended, which has a similar effect, except that the period of time is longer, and if the offender does not comply, the sentence will be imprisonment. A community sanction can be imposed, as mentioned above.

In England and Wales there is a special measure26 for young offenders (under 18) who admit their offence and are in court for the first time (unless the offence is too little or too serious). It is called a ‘referral order’, and means that the offender must be referred to a ‘youth offenders’ panel’. It consists of one official and two members of the public, volunteers who have been trained. (This fulfils one of the aims of restorative justice, namely involvement of the public, although their training and operation are kept within the official framework.) The aim is not to punish the offender but to make an ‘action plan’ which will help him to keep away from crime. It may include reparation to the victim, if the victim wants it, and victims and their supporters should be invited to be present. Until now, however, not many of them do. We believe that there are two main reasons for this: that the process and its advantages are not explained clearly enough, by someone who understands restorative principles, and that they are not consulted about the time of the meeting. An early research study found that only 13 per cent of victims attended a hearing27, but efforts are being made to improve this.

In Northern Ireland victim-offender mediation has community roots: it was started by two groups, one Nationalist, one Loyalist, as an alternative to punishment beatings by paramilitary gangs. Now the Justice (NI) Act 2002 makes mediation, or ‘conferencing’, part of the juvenile justice system: cases are referred by youth courts and the Public Prosecution Service to youth conference co-ordinators. Extension of the programme to adults is under consideration. The community-based programmes, however, are now finding great difficulty, because the authorities are imposing conditions which they are unable or unwilling to meet. 28.

Fourthly, obviously, restorative services should be available throughout the country. It is common for them to be introduced in a few places at first, and only for selected offenders, such as juveniles, but the aim should be a universal service. There is a debate about whether they should be provided by the criminal justice system, or by non-governmental organizations with support from the state. One consideration is that non-governmental organizations have more independence, and can maintain restorative principles. Another question is, Who should be mediators? Criminal justice professionals, professional mediators, or trained volunteers? Criminal justice professionals may find it difficult to change from a conventional philosophy to a restorative one, although some have done so very successfully; there is general agreement that they should not mediate in a case where they are also involved in an official role. In England we have found that mediators only need training in mediation, and do not require, for example, a degree in social work or psychology; this is in line with the principle that ‘mediators should be recruited from all sections of society and should generally possess good understanding of local cultures and communities’, provided of course that they have sound judgement and interpersonal skills 29.

Governments should therefore enable NGOs or others to provide mediation services,, and provide safeguards, but preferably leave detailed guidelines to NGOs, because they are more flexible, innovative, directly involved with day-to-day practice, and insulated from political pressure (although they will inevitably be open to some pressures while they are dependent on the government for funding30. The Council of Europe says that there should be guidelines, but leaves open the question of who makes them31; mediation services should have sufficient autonomy in performing their duties32. CEPEJ and the United Nations, on the other hand, recommend that member states should consider establishing guidelines, standards and codes of conduct, provided that there is regular consultation between criminal justice authorities and administrators of restorative justice programmes.33 This should however not be necessary if there is a well supported national NGO, whose members are local mediation services which can propose updates in the light of practical experience. This would be the competent body which, in the Council of Europe’s recommendation, should monitor mediation services34. CEPEJ recommends the use of NGOs35.

The fifth requirement is that offenders should be enabled to make amends in the way that they have promised. If they have undertaken to work for the community, the community (NGOs, the municipality, or private employers) must provide work for them to do. If they need therapy or treatment before they can undertake that, these should be available, and they should also be enabled to acquire necessary skills. The need for this is shown by a recent example. a distinguished visitor (formerly Chief Inspector of Prisons) was invited to observe a victim-offender mediation session in a prison. The victims were three young women sharing a flat, which had been burgled. They met the burglar in prison, with a prison officer as facilitator, and told him the impact of feeling that their home had been violated and their possessions taken. The offender apologised, and told them of the difficulties he had faced in life, including alcohol and drug problems and not being able to read and write. He agreed to seek treatment for drug and alcohol addiction and to enrol for a literacy course. The young women asked him to write at intervals to let them know about his progress. The visitor saw the prison governor afterwards, and asked whether those programmes were available in the prison. The governor replied that they were not. The visitor was very critical of the fact that the governor allowed his staff to conduct a mediation in which the offender agreed to terms which, through no fault of his own, he would not be able to fulfil 36

Conclusions

In conclusion I should like to make two points. One is that restorative justice procedures provide an opportunity to look beyond the narrow legal question, such as Did this person commit this crime? In the course of discussing the context of the offence, participants will be able to see factors which offenders have in common. If many of them come from a certain school, or a certain district, or are members of an ethnic community such as Roma, the agencies responsible for social policy should look at those places and groups to see what social conditions are putting pressure on them to commit crimes. Then preventive measures can be taken – provided there is the political will..

Lastly, I suggest that above all we should put our faith in developing restorative practices in schools. Restorative principles are very simple, as we saw in the basic questions at the beginning, and teachers are finding that they make discipline easier and more educative. In February 2009 I visited the Riverside multi-agency project in Hull, a city in the north of England with a population of 250 000. It is working with twelve primary and two secondary schools and aims to introduce restorative practices to everyone who works with children. In one school, in 2007, an average of 60 pupils per week were made to leave their classrooms for misbehaviour; a year and a half later, the average was only one. In another, the average number excluded from school was reduced by 44%, and physical abuse by 40%.37 It is hoped that longitudinal research will be possible to see whether, in the course of time, the rates of crime and anti-social behaviour in that city will be reduced.

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Varieties of restorative experience

 Keynote address to 12th Annual Conference of the Mediators’ Institute of Ireland, Dublin, ‘Towards a Requisite Variety of Mediation’, 6-7 November 2010.

It is an honour to be asked to speak to your Conference, and I am glad to learn a little about the progress you are making with mediation in Ireland. I feel humble at the thought that I am taking the place of the outstanding peace activist Dr Izzeldin Abuelaish, but I hope you will be able to hear him on a future occasion1.

Naturally what I will say is very different. I want to pick up the title of the conference, ‘Towards a requisite variety of mediation’, and I have called my talk ‘Varieties of restorative experience.’ I will look at some of those varieties, most of which you will be familiar with, and suggest that they have much in common.

I will also suggest that they should not only be our preserve, as a new brand of professionals, but should be available to everyone. To take an imperfect analogy, we don’t want specialist health food shops for the enlightened élite, with jink food shops for everyone else. Everyone should have healthy food, and understand why. Of course we will often want sugar, starch, alcohol and so on, and in small qualtities we may even need them. With a healthy diet we ill go to the doctors less often – but they should not worry – they will still be needed!

What’s in a name? Numerous terms are in use, with similar, overlapping meanings: mediation, alternative (or appropriate) dispute resolution, victim-offender mediation, restorative justice, restorative practices (or approaches), community (or family group) conferencing. They all share the same ‘big tent’ as regards their values; the differences lie in the methods used by practitioners, and the structures through which they are delivered. Generally I will use ‘restorative practices’ as the overarching term, ‘mediation’ for dialogue with two parties, ‘conferencing’ or ‘circles’ for work with groups, and ‘restorative justice’ or ‘victim-offender mediation’ when the criminal justice system is involved.

 

Values

We start with the word ‘restorative’, which has acquired an aura of meaning beyond the dictionary definition. Restorative processes are based on the principle that human beings are happier, more co-operative and productive, and more likely to make positive changes to their behaviour, when those in positions of authority, such as managers or teachers, do things

– with them (combining high expectations and high support) rather than

– to them (top-down imposed change, control, or even punishment, with little support) or

– for them (support with little control).

The basic value is a belief in respectful dialogue, often guided by a third person, and many would add the desirability of community involvement in the process (of which more below). Restorative practices aim to ensure a fair process, involving people in decisions that affect them. As regards respect, this applies even in victim-offender mediation, where one party has clearly harmed the other: the mediator still tries to distinguish the person, the human being, from the act (the crime, harmful act or mistake).

Even the same word may be understood differently by different people. Some politicians seem to interpret restorative justice as consisting mainly of reparation or unpaid work, while for practitioners the dialogue is the essential feature. Radical feminists have objected to the use of mediation in cases of domestic violence, apparently because their image of mediation is a one-to-one encounter in which the man might dominate the woman. This takes no account of safeguards, such as requiring the man to attend an anti-violence programme beforehand, or other methods such as shuttle mediation, in which the parties do not meet, or at least not until the facilitator is satisfied that it is safe. One academic, Carolyn Hoyle, points to the strengths of another method, ‘conferencing’, in which family members and other supporters are also present2; and even she does not refer to yet another method, used extensively in Austria, in which a male and a female mediator listen to the couple separately and then describe their respective points of view with both of them present. They are given the opportunity to correct or modify their story. This distancing makes it harder for the perpetrator to use ‘neutralization’ techniques to deny the seriousness of his conduct. It is not claimed that this method can be used in all cases, but there has been a high degree of satisfaction from women who have experienced it3.

So there is variety even within the meaning of one word.

 

Methods

Restorative practice is not just a matter of dispute resolution: it can also be preventive. As Karen Erwin, the president of the MII, points out in its current newsletter,

Although mediation is frequently thought of as a way of helping to resolve disputes it can be used very effectively in dispute prevention. Whether this is in Elder Mediation, succession planning, joint ventures or boardroom strategy, the same principles apply and the process helps what might be otherwise difficult discussions to take place in a safe space4.

Techniques of participative decision making may prevent the dispute from arising in the first place. For children, writers like Adele Faber and Elaine Mazlish have described how to get co-operation from children by trying to imagine what it feels like to be on the receiving end of blame, put-downs, sarcasm, and so on. Instead, parents can describe the problem (leaving the child to draw her own conclusions about what she needs to do), avoid long harangues, describe their feelings, allow the child to make choices, or even write them a note5.

It is surprising how many situations can be addressed by variants of those three non-blaming, non-punitive questions: What happened? Who was affected? What is needed to make things better?

For big meetings, a basic method is to divide a large group into smaller ones, each if possible containing representatives of differing viewpoints, so that everyone can have a say; or a small group can discuss in the centre of the room with the rest listening; individuals from this outer circle can move to the centre to make a point.

In describing these methods I am running the risk of telling you things that many of you know already; please forgive me, but the point I want to make is that they are not merely specialist techniques to be applied by professional mediators in specific circumstances, but potentially part of a sea-change in the way people relate to each other. Advocates of restorative practices stress that before introducing this great new idea, it is worth looking at one’s existing practice to see how restorative it already is. In many cases RP will merely refine the structure of what people already do – but in others it revolutionizes it.

Many restorative practitioners have great faith in the power of the circle: the dynamics are different from those produced by sitting round a rectangular table, let alone confronting an authority figure who is on a daïs or behind a desk. The Roca program, for young people in a deprived part of Boston, Massachusetts, for example, uses circles for talking (sharing ideas and experience), conflict and peacemaking (including gangs), support (for a person undergoing a challenging experience), healing (after neglect or trauma), ceremonies (to celebrate an achievement) or as part of the ‘visioning’ and organization of the programme itself6. For participants, coming to an agreement about the circle’s guidelines is itself an educative process; for staff, circles (without tables or papers) encourage hard questions about the agency’s mission, whereas because a bureaucracy doesn’t encourage speaking up. it cultivates grumbling7.

Circles, too, are not new. Group psychotherapy relies on circles in which each person may be influenced not by a professional but by their peers, who have confronted the same demons themselves. It was pioneered at the Henderson Hospital in south west London, now unfortunately under threat of closure, and at Grendon prison in Buckinghamshire, long before the word ‘restorative’ acquired its present meaning.

Mediation works on a combination of the rational and the emotional. The rational is encouraging people to focus on their real interests, rather than their dug-in positions, and to hear the other person’s point of view, by such techniques as ‘re-framing in neutral language’ and even asking each person to summarize the other’s point of view. It is set out in Fisher and Ury’s well known Getting to yes8. On the international level it is described in Roger Fisher’s Beyond Machiavelli

9, and a parallel approach is described in Elworthy and Rifkind’s Making terrorism history10

The emotional component is to provide a space in which people can express their feelings safely, and can begin to feel empathy for each other. Mediators can’t make it happen, but they can create conditions where it can happen more easily.

Non-violent communication11 combines the two, using rational clarity to describe emotions and make respectful requests. Non-violence combines idealistic values with calculating pragmatism, because in many situations, it can be argued, it is the best policy12. If Dr Izzeldin Abuelaish had been here – I don’t want to put words into his mouth, but it wouldn’t surprise me if he advised the government of Gaza to declare a policy of non-violent resistance as the cleverest strategy, instead of firing rockets into Israel. Twisting a lion’s tail is a brave act of defiance, but can be counterproductive.

My favourite example of reframing is from Marshall Rosenberg13. It concerns 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 re-framed that: ‘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.

Restorative justice is being widely discussed in the context of criminal justice. As you know, in Ireland the National Commission on Restorative Justice recommended that it could have valid and effective application in the Irish criminal justice system. using victim-offender mediation, family group conferencing or reparation panels14

A discussion of restorative approaches would not be complete without addressing the subject of punishment. Both practitioners and theorists are coming to realize that punishment, in the conventional sense of threatening to inflict pain, and doing so if the other person behaves in a certain way, has at best a limited effectiveness. Faber and Mazlish devote a whole chapter to alternatives to punishment, which are restorative although they do not use that terminology15. Belinda Hopkins also stresses the need to move on from punitive methods, based on fear, to restorative ones16.

Structures

In organizations

School or college students or employees in a business may participate in creating the conflict-resolving structure itself and the action to be taken when conflicts nevertheless arise. Circles can be used not only as a response to crime or conflicts, but as a regular part of a young person’s development17. Belinda Hopkins advocates circles for every part of the school community, both as regular ‘circle time’ and for problem-solving, with the students themselves developing the ground rules at the beginning of a year18. Ron and Roxanne Claassen in California, similarly, have evolved and practised a system of school discipline that is restorative from the start: students are asked to state their goals, the teacher informs them of hers, and they agree a flowchart of ten steps that will be taken in the event of student-teacher conflict. These are restorative but increasingly interventionist; only the final one, which is hardly ever reached, involves the school’s authority structure. Even this is applied as restoratively as possible, for example not demanding expulsion but transfer to another school19.

The IIRP maintains that ‘individuals are most likely to trust and co-operate freely with systems – whether they themselves win or lose by those systems – when fair process is observed’20. It stresses, however, that this does not mean that restorative management forfeits the prerogative of making decisions and establishing policy, nor taking all decisions by consensus, or winning people’s support through compromises to accommodate everyone; management still has to manage, but builds trust and commitment, producing voluntary co-operation by sharing the knowledge and creativity of the staff.

As an everyday example of how things could be different, let us look at a typical non-restorative 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 concentrate 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.21

In communities

Finally there are different ways of delivering mediation and restorative practices to the community: through practitioners in private practice, by training people within the system (teachers, managers, police), and by community-based mediation services, using trained volunteer mediators. Civil and commercial mediation, as you know better than I, are developing to meet demand as they become better known, with the help of the Mediators’ Institute of Ireland, and similarly in the UK the more recently created Civil Mediation Council.

The provision of restorative practices through the statutory sector is more problematic. They are likely to have a robust management structure, and, until the current crisis, more secure funding. However, in criminal justice in England and Wales, the field which I know best, mediators are likely to be found only in juvenile justice, and in a small minority (perhaps of one) in a large youth offending team whose dominant ethos is still that of conventional criminal justice. Youth offender panels have restorative elements, in that victims can be invited to take part and the focus is on a constructive action plan for the young person; they also involve the community, by using trained volunteers as panel members. But they receive only minimal training in restorative principles, and few victims take part. The legislation can make a big difference: in New Zealand, the Children, Young Persons and their Families Act 1989 built family conferencing into the juvenile justice system, and Northern Ireland has followed suit (with the Justice (Northern Ireland) Act 2002), and has achieved higher victim participation22.

The third main way to deliver restorative practices is through the community. In England we have hopes that politicians will recognise that this fits well with the new, though not very clearly spelt out, idea of the ‘Big Society’. We are not sure what they mean by it, although there are suspicions that it is not unconnected with cuts in public expenditure; but what we mean is involvement of members of the public at all levels. It includes parents, extended family and other supporters who attend a family group conference, where they can not only help to reach agreement or confront a young person with the effects of his actions on other people, but also contribute to making an action plan and support him in putting it into effect. In the New Zealand model of FGC, after social workers have provided information about locally available resources, they withdraw, allowing ‘private family time’ in which the family can work out its own solution. In one case in the Netherlands, for example, where a Turkish father objected to his daughter’s adopting Western culture, his sister (the girl’s aunt) used the private time to explain to him ‘You are an OK father, but you are living in another country now.’ What could never be accepted if said by a social worker could be said by a family member in the absence of professionals23.

Mediators can be trained volunteers. The service can be provided by a voluntary organization, usually a registered charity, whose management often includes volunteers and officers of statutory agencies. The community has a role outside the actual mediation. When someone has committed a crime and offers to make reparation, the community in the form of, for example, a local charity can provide an opportunity for community service; if he needs paid work, to keep out of trouble and perhaps pay compensation, local employers can provide it. If he needs work skills or life skills, there is a need for suitable programmes, provided by voluntary organizations or the local authority (for which the local community has voted). All of this contributes to a restorative society.

In England and Wales there are a number of local community mediation services; unfortunately since the national organization Mediation UK closed in 2008, no one knows how many. In addition to neighbourhood mediation they can be a focus for other work in schools, workplace mediation, hate crimes and others. I understand that a few have also been established in Ireland.

The use of volunteers should not be regarded as providing a substandard service. Experience in the UK, Norway, the Netherlands and Poland has shown that volunteers can be capable mediators, and between them they can bring the perspectives of more different cultures (and sometimes languages) that would be possible with paid staff alone. An example comes from a multi-cultural city in the north of England.

The owner of a shop complained of harassment. She sold alcohol, and the mosque next door objected. She was a Sikh, and her partner, who was Black British, had converted to Islam, but did not observe the prohibition of alcohol. She felt that the elders of the mosque did not respect her; they refused to talk to her, as a woman, but only spoke to her partner. Younger, radical members of the mosque threatened her; on one occasion she had to barricade herself in upstairs, and the young people stole from her shop.

Two imams and two mosque members who knew the young Muslims agreed to meet her with the mediators (her partner had left meanwhile). The mediators were a volunteer (a Hindu) and the manager of the community mediation service (a Christian who had converted to Buddhism). She spoke about her fears, and said that she was already isolated from her family because of her non-Sikh partner, and this made it worse. She felt entitled to sell what she wanted to, and to live free from threats. The mosque elders agreed, and the others promised to speak to the young radicals. She in turn would not promote alcohol so conspicuously. During the meeting the Muslims did speak to her directly, and they agreed to nominate an elder to whom she could speak if there were any problems in future. The people concerned recognised each other’s humanity, and a potentially serious situation was calmed with no involvement of the criminal justice system.

A community mediation service, unlike, say, a youth offending team, is entirely committed to restorative principles. Its mediators will not have to take off one ‘hat’ (or a policeman’s helmet) and put on the hat of a mediator: they will already be wearing it. The mediation service will, ideally, be affiliated to a national body. This will require local services to be accredited and comply with a code of restorative principles and practice; this seal of approval should reassure statutory agencies when considering referring cases to them, and also funders. Until now the Restorative Justice Council in England and Wales has concentrated on accrediting individual mediators; in my view this is necessary but not sufficient, and my hope is that they will soon introduce accreditation of mediation services. (Traffic lights are very desirable, but they are no use if there aren’t any cars!)

Some people are sceptical about the use of volunteers, but in Norway, the law setting up a nationwide network of mediation centres, funded by local authorities, requires mediators to be lay people, supervised by staff or a senior mediator. There are about 700 in a population of just under 5 million. In the Netherlands, the organization Eigen Kracht (‘Our Power’) also uses about 500 independent co-ordinators, from 72 ethnicities; they are paid a fee, and each case takes up to 30 hours for preparation and the family group conference itself. Cases they deal with include community conflicts, evictions, schools, domestic violence and other crime. The programme is seen as enabling citizens to keep control over decisions affecting their lives without being dependent on the state. In a phrase reminiscent of President Lyndon Johnson’s Great Society and its Office of Economic Opportunity in the 1960s, Rob van Pagée, the director of Eigen Kracht, says that people who were considered part of the problem can become part of the solution.

In Northern Ireland, community-based restorative justice has been running for about 20 years, but there are fears that some of its work will be taken over by the statutory criminal justice system. It is hoped that a role can be found for both.

An example of how these ideas can grow is the city of Hull, in north-east England. Its population is 280,000, including 57,000 young people. There is high unemployment, partly as a result of the decline of the fishing industry. Collingwood Primary School which had been in difficulties adopted restorative practices, and in two years was rated excellent. Other schools followed suit, and now Hull plans to train 23,000 people who work with young people in restorative practices, as the next step to becoming a restorative city. The chief of police, previously oriented to obtaining the maximum penalties, has accepted that a restorative approach can be more effective in preventing re-offending. He has done this despite a system of key performance indicators which does not give credit for incidents resolved restoratively. Among youth workers, the aim is to create a common language and values, and to be not merely reactive but proactive, preventive, and trying to feel what it is like from the child’s point of view.

The programme started with practice, but is now thinking strategically. The aim is to build-in the use of circles, not just hold one when there is a problem. At least twenty agencies or groups of agencies have been trained, including schools, fostering and adoption, a children’s centre for under-5s, youth clubs, church groups, housing, police and more. The Hull Centre for Restorative Practices runs regular practice forums for specific agencies to ensure quality assurance, maintain standards, support practice and develop it. Lead practitioners monitor, support and challenge practice in organisations. Regular courses are advertised to bring in new staff, and restorative practices are included in staff induction in many places. Some schools insist that staff do training within a certain time period of starting the job. It is hoped that all this reduces the possibility of a RP-trained member of staff feeling isolated in a non-restorative organization. The aim is for restorative practices to be embedded, not an add-on24.

Although there is no community mediation centre in Hull, there is a family mediation service; some statutory and community agencies trained in the use of restorative practices offer mediation, and some of them use volunteer mediators.

Hull is not alone. The county of Norfolk has a police-led initiative to be a restorative county by 2015 In West Lancashire, a first step has been made in which a group of schools pays into a limited company which they have set up to provide training and support for young and adult mediators. Children transfer their skills to their families, and the area has the lowest exclusion rate in Lancashire. The group works alongside other agencies such as the police.

In one case, parents complained about an elderly woman, ‘Annie’, whose house children passed on the way to school. They alleged that she threw things at them. The police said they couldn’t do anything. A meeting was held with her, the children and their parents. She told them how she felt isolated and threatened, and the children admitted that they threw the first stones, and called her a witch. The matter was resolved without bringing criminal charges, and a group of parents gave Annie’s daughter flowers and a cake on her birthday.

This case is interesting because the criminal justice system would probably have categorized Annie as the ‘offender’ and the children as ‘victims’; even if the full story came out, it might only mitigate her ‘offence’ on grounds of provocation, rather than reclassify her as the victim.

Elsewhere in the world, some traditional communities have customary conflict resolution techniques from which we could learn. The Ojibway community in Hollow Water, Manitoba, for example, discovered widespread sexual abuse. Rather than disrupt the community by asking the Canadian authorities to prosecute, which could have led to the perpetrators being imprisoned hundreds of miles away and then returned as outcasts, traditional healing methods were used, which led to a recidivism rate of 2 per cent, as against the national average of 13 per cent25. In other places, the traditional methods have been weakened but are being re-introduced as a way of resolving conflicts over natural resources. In South Kordofan, Sudan, the aid charity SOS Sahel International has found that agricultural problems lead to conflict, and the conflict aggravates the problems. They are therefore training key individuals in conflict management skills which will help communities to defuse potential conflict situations. These individuals include traditional leaders, women, and youths, and the training focuses on different approaches to managing conflict: for example, via negotiation and mediation26.

 

Conclusion

Where does this leave the theme of your conference? The programme speaks of mediators’ capacity to deal with ever more complex conflict situations, to assist people in creating agreement. Workshops will cover many aspects that I haven’t mentioned. With regard to Values, some of you will be considering legal and ethical issues; it is essential to return to basic principles when deciding how to handle a new situation.

Others will discuss Methods, the mediation process itself, for example dealing with complexity and the use of questions, and there are workshops on mediation in particular areas of human life, such as industrial disputes and in neighbourhood conflict. The possible areas for conflict are of course as varied as human life itself, from bringing up a toddler to international disputes; and the principles involved are uncannily similar, such as treating people with respect, listening to them and helping them to listen to each other, moving from positions to interests, looking to the future more than the past, and helping them to find face-saving choices acceptable to both sides.

The third point was the Structures by which mediation is delivered. Your programme includes supervision and regulation, which will be necessary in all forms of mediation, although there can be questions about whether they should be imposed by the government or by a body such as the MII (or in England and Wales the Restorative Justice Council). The workshop on building a mediation practice will take some of you into the field of delivery. Private practice is obviously a very important way, but I would encourage you also to look beyond it, as no doubt you already do. In organizations, such as schools and businesses (and even charitable organizations!) restorative methods such as circles and non-violent communication may help to avoid conflicts in the first place, or resolve them before they become serious. In the community, there are many decisions and conflicts for which, realistically, people would not go to a professional mediator. I have suggested that communities would benefit by the creation of a network of community mediation services, professionally run and accredited but mainly using volunteer mediators. There are parallels to this in England, in the form of legal advice centres, Citizens’ Advice Bureaux, Victim Support and others, and no doubt their equivalents in Ireland.

Finally, as more and more people have been trained in restorative techniques or experienced them as participants, including children and the staff of more and more public and private organizations, restorative ways of relating to each other will become the norm. Children will grow up to become restorative parents, employers and politicians. There will be restorative cities and counties; a speaker at the recent IIRP conference was only half joking when he said that he wants his country, the Netherlands, to become the first restorative country! In theory mediators, like doctors and lawyers, will eventually work themselves out of a job. But I don’t think they will! But it is a noble aspiration.

Let me end by referring back to my example of reclaiming the desert in Sudan. Over the last two or three decades the big challenge has been learning how to live in harmony with the planet; the next challenge for us all is to learn to live in harmony with each other.

martin@martinwright.eu

 

2 Hoyle, C (2010) ‘The case for restorative justice ‘ in: C Cunneen and C Hoyle, Debating restorative justice . Oxford and Portland OR: Hart Publishing. pp. 75-81.

3 Liebmann, M (2007) Restorative justice: how it works. London and Philadelphia PA: Jessica Kingsley Publishers. pp 290-3.

4 MII E-zine 2(2) June 2010, http://www.themii.ie/onlinemarketing/ezine4.htm accessed 2.11.2010.

5 Faber, A, and E Mazlish 1980) How to talk so kids will listen and listen do kids will talk. New York: Avon Books.

6 Boyes-Watson, C (2008) Peacemaking circles and urban youth: bringing justice home. St Paul, MN: LivingJustice Press. p. 58-65.

7 Boyes-Watson, op. cit. note 6. 114-6., 187. 191

8 Fisher, R, and W Ury (1991) Getting to yes: negotiating an agreement without giving in. 2nd ed. London: Random House.

9 Fisher, R et al. (1996) Beyond Machiavelli: tools for coping with conflict. New York: Penguin Books.

10 Elworthy, S and G Rifkind (2006) Making terrorism history. London etc.: Rider.

11 Rosenberg, M (1999) Non-violent communication: a language of compassion. DelMar, CA: PuddleDancer Press.

12 Kurlansky, M (2007) Non-violence: the history of a dangerous idea. London: Vintage Books.

13 Rosenberg. M (2005) Speak peace in a world of conflict: what you say next will change your world. Encinitas, CA: PuddleDancer Press. pp. 121-5.

14 National Commission on Restorative Justice (2010) Final Report. Dublin. http://www.restorativejustice.org.uk/International_RJ/pdf/NCRJ%20Final%20Report.pdf accessed 5.11.2009

15 Faber and Mazlish, Chapter 3.

16 Hopkins, Belinda (2004) Just schools: a whole school approach to restorative justice. London and New York: Jessica Kingsley Publishers. Ch. 7.

17 Boyes Watson, op. cit. note 6, p. 63

18 Hopkins, op. cit. note 14.

19 Claassen, R, and R Claassen (2008) Discipline that restores: strategies to create respect, co-operation, and responsibility ion the classroom. Booksurge Publishing, South Carolina: www.booksurge.com

20 Costello, Bob (2010). Workshop on restorative supervision, IIRP conference, Hull, October .

21 Thanks to Annette Hinton and Corinne Rechais for helpful comments.

22 Jacobson, J., and P. Gibbs (2009) Out of trouble: making amends – restorative youth justice in Northern Ireland. London: Prison Reform Trust; Campbell, C., R Devlin, D O’Mahony, J Doak, J Jackson, T Corrigan and K McEvoy (2005) Evaluation of the Northern Ireland Youth Conference Service (NIO Research and Statistical Series: Report No. 12). Belfast: Queen’s University, Institute of Criminology and Criminal Justice www.nio.gov.uk/evaluation_of_the_northern_ireland_youth_conference_service.pdf

23 Wachtel, J (c.2007) ‘Making the circles bigger: the Netherlands’ Eigen Kracht holds its 1000th family group conference’. http://www.familypower.org/library/eigenkracht.html accessed 3.11.2010

24 Thanks to Mark Finnis Head of Training and Consultancy Hull Centre for Restorative Practices for much of this information.

25 Sawatsky, J (2009). The ethic of traditional communities and the spirit of healing justice: studies from Hollow Water, the Iona Community and Plum Village. London and Philadelphia: Jessica Kinglsley Publishers. Chapter 4.

26 SOS Sahel International UK (2010) Assessment of resource-based conflict flashpoints along the Babanusa-Muglad-Abyei livestock corridor South Kordofan, Sudan . Oxford: SOS Sahel.