Restorative justice: the basic idea, and practice in the United Kingdom

Paper to seminar on `Victim/offender mediation in adult cases’, organized by the Council of Europe and the Ministry of Justice (Institute of Justice) of Poland, Popowo near Warsaw, 2-4 September 1998.Published in Victim policies and criminal justice on the road to restorative justice: a collection of essays in honour of Tony Peters, ed. by E Fattah and S Parmentier. Leuven: Leuven University Press, 2001.

You have heard this relatively new term `restorative justice’ (sprawiedliwość__ naprawcza), and perhaps different people have different understandings of what it means. Looking for common ground, because that is what mediators do, I want to say that in many ways restorative justice is common sense. When I looked in a dictionary, I found that Polish is a very rich language, in which these words can be translated in different ways. You, or the interpreters, will tell me if I have understood correctly, but it appears that`common sense’ is zdrowy rozsądek, healthy and sensible, or ch.łopski rozum, the way ordinary people understand things. `Common ground’ is rzecz wspólna, something held jointly. I am going to suggest that the idea of restorative justice can be described as `common’ in the sense of: gminny, shared by the community; codzienny, everyday; zwyk.ły, usual or customary, and ogólony, universal.

It is a new idea; but it is also a very old one. Some of the ideas derive from anthropology – the study of communities of ordinary people in other countries, including Africa, New Zealand and Canada (Christie 1977; Wright 1996: ch. 4, 7). It includes the idea of com­pens­ation, which, I understand, was introduced in the Polish Penal Code of 1932 (Article 62 §2), in the context of a conditionally suspended sentence (and I do not know how much it was used); but restorative justice is a wider concept, as we shall see. The Penal Code of 1969 also allowed it inter alia in the context of conditional discontinuance of prosecution (Article 28 §§2 and 3), and I understand that in privately prosecuted offences an attempt at medi­ation was required; about two-thirds of these cases were discontinued, often accom­panied by reconciliation.

1 Polish readers will be aware that the Penal Code which came into force on 1 September 1998 allows courts to take account of positive results of victim/offender mediation (Article 53 §3; Articles 60 §2 and 66§ 3 are also relevant.) Compensation for damage is also, of course, a basic principle of civil law; and it is possible to settle a civil claim without going to court. This is another idea which has a place in restorative justice; indeed in Austria, as you will hear from Christa Pelikan, the term used for victim/offender mediation is `out-of-court offence resolution’.

 1. Everyday responses to crime

You are all people with considerable knowledge and experience of the criminal justice system. May I ask you for a moment to put all that knowledge and experience on one side; imagine that you are taking a blank sheet of paper, and writing down how you would expect a society to respond when one of its members commits a crime against another.

 Help for victims

The first priority, I suggest, is to help the victim to recover (I am simplifying, of course; as we know, in many cases either there is no individual victim, or a person who is maltreated turns on their persecutor so that in a sense both are offenders and both are victims). Victims should be offered help and support, the processes of justice should be explained to them and they should be kept informed of the progress of their case. They want those processes to ease their pain, not to add to it. They would like the harm that they have suffered to be acknowledged, both on behalf of the community and if possible by the offender him or herself. They would like some assurance that action will be taken to reduce the likelihood of others experiencing the same.

 Results over the past twenty years in several countries have shown that many of them would welcome the opportunity to speak to the offender, face-to-face or at least indirectly, to see what he looks like, let him know their feelings about the effect his actions have had on them (and often on their families), to ask questions, and take part in discussing what form the reparation should take, which we will look at later. Restorative justice is a voluntary process, so victims do not have to use it, and it deals only with reparation, so that they do not have the burden of responsibility for influencing punishment.

 Holding offenders accountable

Secondly, what should happen to offenders? A common feeling (in any of those senses of the word `common’) is that offenders should be held accountable and answerable, and make some form of reparation. People want this to `cost’ the offender at least some effort, even if he has no money with which to pay compensation. In addition, most people would agree that a minority of serious offenders have to be restrained, but with the minimum necessary use of force; imprisonment would be used only for those who are seriously likely to cause serious harm.

 The restorative justice process allows them to speak in their own words: they do not have lawyers to speak for them and they are not limited to answering lawyers’ questions. They have the opportunity to say why they committed the offence: this does not mean making excuses, but explaining so that the victim can understand. It is an uncomfortable experience for them, but it ends positively by enabling them to make a new start: by making reparation they can earn reintegration and re-acceptance into the law-abiding community.

 You may be wondering whether the `common ground’ includes the idea that offenders should be punished. The short answer is that although many people believe this, there is also a widespread feeling that punishment doesn’t achieve much, and even that it is wrong for the state to inflict punishment on its citizens unless it can be shown that it is effective; so I do not think this can be included in the common ground.

[Having mentioned punishment, I should define it: in this paper `punishment’ does not refer to all types of sentence or sanction, but only to those which are intended to cause pain or unpleasantness. As the Norwegian criminologist Nils Christie has said:

 imposing punishment within the institution of law means the infliction of pain, intended as pain (Christie 1982: 5).

For clarity, I will use the word `sanctions’, which may be punitive, rehabilitative, retributive, or restorative. No distinction is made here between `restorative’, `reparative’ and `making amends’.]

 Often punitive sanctions are only used because of a feeling that `something’ should be done. People recognize that any good effects of prisons are usually outweighed by harmful ones; but they feel that rehabilitative sanctions pay too much attention to the needs of the offender, and ignore the harm he has caused to the victim. Restorative sanctions provide a third way, a different `something’. Prisons are part of the problem, not part of the solution, and evidently this is recognized in Poland: it is reported that the prison population has been reduced from 100 000 in the 1980s to 66 500 in 1995 and 56 700 in 1996 (149 per 100 000 population), and the new penal code introduced on 1 September 1998 is expected to reduce it still further. In England and Wales, unfortunately, the trend is the other way: in 1993 we had 41 500 prisoners, and the number rose rapidly until in 1998 it appeared to level off at about 65 000 (128 per 100 000 population). Most worrying is that the number of young men aged 15 to 17 in prison in England increased by 28 per cent in one year (mid-1996 to mid-1997); since male young offenders have a reconviction rate of 76 per cent, the courts are storing up trouble for us by sending so many to prison. I hope that in Poland you will be able to continue to release resources for community sanctions by reducing the numbers held in prisons; and I wish that the British government would do the same. (This is not the place to mention the United States of America, Russia or Belarus, which are far and away at the bottom of this lamentable league table (Penal Reform International 1998; Stern 1998: 31-32).

 If a more constructive (reparative) sanction were available, many people would prefer this, as national and international public opinion surveys have shown (Wright 1989; Stern 1998: 313-9). In England, in a survey of victims, 49 per cent said they would have accepted the chance to meet the offender to agree a way in which he could make a repayment for what he had done, and a further 20 per cent would like such an agreement without a meeting, 69 per cent in all; the proportion was higher for victims of property offences, lower for violent ones (Maguire and Corbett 1987: 223-231). In Germany, a survey of the general population found that for a range of offences, the great majority wanted restitution; only 21 per cent wanted punishment without consideration of restitution (but this proportion was higher for the more serious offences) (Sessar 1992: 257-271). In Britain the proportion wanting offenders to be imprisoned has been increasing, but there is also evidence that the public is largely misinformed about crime and sentencing; and when people are informed of the available sentences, more want compensation and fewer want prison (Hough and Roberts 1998). In short, although there are many people who want offenders to be punished, many others want more constructive sanctions.

 What do offenders themselves want? Probably the only generalization one can make is that they want to feel fairly dealt with. Most want to avoid punishment, although there are some who accept it as the only available way of demonstrating regret (or as a way to show how tough they are). Others would like the victim to know that they regret what they have done: but few would spontaneously meet face-to-face to apologize – it is a daunting prospect.

Involving the community

What does the community want? Insofar as it has a collective voice, probably (like the victims themselves) it wants victims to be supported if they need it, for example through Victim Support and compensation for crimes of violence. Unless the offender has any money, compensation for property crimes probably has to be left to private insurance, except for victims with the lowest incomes who can be helped by the state social security system in those countries where there is one. It wants offenders to make amends. Many people, when they think about it, recognize that it is desirable to reintegrate offenders and provide them with the opportunity to make reparation, for example through community service, or training or treatment programmes that will help them to be reaccepted into the community and avoid future offending. It must however be admitted that members of the community will sometimes have to be persuaded to provide the necessary time and money to enable this to happen.

 The community can be involved in several ways. The management committee of the mediation service can include people from outside the criminal justice system. Mediators may be trained lay people (volunteers or paid for each session). Mediation may develop into conferencing, which brings in the families of the victims and offenders (who are also members of the community). I will say more about lay mediators and conferencing later. Lastly, the community in the form of local welfare services or independent non-governmental organizations (NGOs) can provide the support needed by victims recovering from crimes and by offenders making reparation.

 Although I have no evidence for this, I believe that most people would prefer a maximum of individual autonomy and community action and a minimum of intervention by the state (Braithwaite and Pettit 1990). But there may be some inconsistency in people’s attitudes: they want things done for them, but they don’t want to pay for it. There are essentially three ways of providing care of the elderly, assistance to victims, support for parents and children, mediation, and similar services: they can be provided by the state and paid for out of taxes; or by NGOs and paid for by charitable donations; or by individuals. These can of course be combined; an NGO can receive government money, for example. In Britain much of this work is done by NGOs: they employ almost half a million paid workers (half of them part-time or on a casual basis, and a quarter educated to degree level), almost 2 per cent of the total UK workforce; there are also more than 3 million volunteers. Many individuals simply act on their own, for example by caring for an elderly relative or adopting a child; but others work voluntarily in their spare time with an NGO, which provides training and supervision, and this is a method which can be used in restorative justice. For people who do not want to offer their services in this way, or cannot spare the time, but do not want to pay taxes either, donations to NGOs provide a way to ensure that people with special needs are cared for. In Britain, some NGOs are largely funded by the national or local government (that is, the taxpayer); but they also have to put much effort into raising funds from charitable foundations and the general public.

 Learning lessons for crime reduction

I believe that most people, if asked, would also agree that the response to crime should include prevention. Sometimes `prevention’ is used as if it were synonymous with `deterrence’: `Punish people and they will stop committing crimes’. This has not proved very effective. As McGuire and Priestley (1995: 14) say in their review of `what works’: `The notion that punishment can reduce the rate of crime in society is little more than an irrational and unfounded hope.’ I mean a crime prevention strategy: that information should be passed back from the agencies that deal with crimes to those responsible for crime policy, to improve the strategy for tackling crime. It is often said that the `criminal justice system’ is not a system, because its parts do not interact with each other in a planned way. A further principle, then, is that it should be a system: that is, if the state is intervening in people’s lives, it should study the cases that it deals with, providing feedback of information to the crime prevention agency both from the point of view of `situational crime prevention’: security (locks, alarms, Neighbourhood Watch, and so on) and of `social crime prevention’: reducing pressures towards crime (for example by providing the right education, work, recreation and nurture for young people, persuading them to avoid drugs, and enabling them to make something of their lives). As one writer has put it, `Instead of asking how effective our programmes are in controlling people and crime, we should be trying to find out what is so lacking in the lives of our neighbours that they see no alternative but a life of crime and violence’ (Elias 1993: 123). Deterrence depends on detection rather than on punishment; crime prevention is a matter for the whole community, not only for the courts.

 This aspect is not yet well developed, but a new British law, the Crime and Disorder Act 1998, has provided an opportunity by requiring all local authorities and police chiefs to draw up a strategy for crime prevention. Information from conferences about factors which increase the pressures and opportunities for crime would be useful in designing such a strategy.

2. Criminal and restorative justice: comparisons and contrasts

 Restorative justice: two keynote ideas

Restorative justice is based on the idea that the response to crime should be to make good the harm, as far as possible, and not, as hitherto, to inflict further harm on the offender. That achieves nothing except to add to the total amount of harm in the world (Wright 1992: 525), and many offenders are already disadvantaged. As much as possible of the making good should be done by the wrongdoer (provided, of course, that he is caught). There is a common feeling among people in general and victims in particular that some good should come out of the harm, even if the harm itself cannot be undone.

 Two particular ideas distinguish restorative justice. One is that the process is an essential part of the response: it is constructive, perhaps even therapeutic. The other is reparation.

 The criminal justice process

Let us look first at conventional criminal justice: the process is geared to producing a result, and the effect on the participants is merely incidental, and often painful. It aims only to answer the question `Did the accused commit a criminal offence?’ and if so, the court decides what sanction to use: the process is seen as incidental to this aim, and if it is painful for the victim, that is an unfortunate necessity. It has been criticized for not giving recognition to victims: they are not kept informed of the progress of the case, and (in the English adversarial system at least) they usually have little or no place in the process, but are sometimes re-victimized when giving evidence in court. The defence lawyer first attempts to discredit them as witnesses; if he fails, and the accused is convicted, the lawyer tries to minimize the offender’s responsibility; meanwhile the offender is often a passive spectator at his own trial. The victim, also, has no part in English criminal proceedings if he or she did not witness the crime, or if the offender pleads guilty; there are however initiatives to keep victims informed and to enable them to give information to the court about the extent of the harm they have suffered.

 The restorative process

I do not want to make unfair comparisons, and it is right to point out that some of these activities of lawyers take place when the accused denies guilt, whereas restorative justice comes into operation only when the accused has admitted the act or been convicted. (In England, 8 out of 10 defendants plead guilty in magistrates’ courts, and more than half in the Crown Court.) But from that point onwards, restorative justice asks different questions: `How did he harm the victim?’ `Does he understand the effect on the victim?’ `What would the victim like him to do to make up for it?’ The process itself helps to heal, by giving the victim the opportunity to express feelings and ask questions. encouraging the offender to repair the harm. Offenders, instead of facing officers of the law, can meet the people who have been harmed and answer them. This process, unlike a conventional trial, enables the victim and the offender to communicate; the offender can understand the hurt he or she has caused to the victim, his own family and the community, and make reparation. Consequently, further punitive action is not needed or justified, because from then on it is a question of deciding what the offender can do for the victim and for his own reintegration. This may require him or her to make some form of reparation, as an outward and visible sign of remorse and understanding.

 The process has been called victim/offender mediation, but in Britain we are beginning to use a new verb, `conferencing’ (which also has the advantage of being shorter!). Victim/offender mediation usually takes place between one victim and one offender, with mediators, but they may be supported by, for example, a parent or a Victim Support worker. Conferencing is basically a similar idea, but the offender and victim are encouraged to bring their extended families, or perhaps a teacher or youth leader with whom the offender has a good relationship. The more people are present, the more ideas can be put forward to enable the offender to be reintegrated into the community. The offender may realize that he has hurt his own family, as well as the victim; but he may also find unexpected support, from a sympathetic victim, or from an uncle or grandparent with whom he had lost touch. The supporters may be helpful for a vulnerable victim, such as a child or an elderly person; if the victim does not wish to take part at all, he or she may agree that they can speak on the victim’s behalf. We do not yet know when it is better to use one-to-one mediation, and when to choose a conference; we need research and experience.

 It needs an act of faith for social workers and probation officers to let people make decisions about their own lives, but they often produce imaginative solutions which the social workers would never have thought of. The idea has been developed from the tradition of family group conferences among the Maori of New Zealand, and a similar concept is being used among Indigenous communities in Northern Canada; but the idea is being extended to larger cities.

 The outcome of a conference may appear `soft’ compared with a conventional punishment, but taking part in a conference (in person, not represented by a lawyer) is in fact a difficult and demanding experience (Braithwaite 1998a: III J 9). Mediation sessions are an uncomfortable experience for offenders. They have to accept facts about themselves, their behaviour and their future which they preferred not to think about; but it is not punishment, according to the definition I am using, because the unpleasantness is not the aim, but a side-effect, and because the realization and reparation are matched by what Professor Braithwaite calls `public gestures of reacceptance’ – or at least they should be if the community fulfils its side of the implied contract.

 Reparation

The second distinctive idea of restorative justice is reparation. This includes the legal principle of compensation, in which a value is placed on the loss or harm, and the offender pays it2. But reparation is a wider concept. It is often symbolic. The offender may have little or no money; the loss may be covered by insurance; the value of the goods stolen may be sentimental rather than monetary; or it may be difficult to put a monetary value on the harm, for example the fear caused by a burglary or robbery, or the inconvenience of having a car stolen. As an alternative to compensation, reparation may take the form of work by the offender for the victim (especially a corporate victim – a `legal person’ – such as a school or a shop); if the victim does not want that, the offender can do work for the community. Thirdly, what many victims want is action which will make it less likely that the offender will re-offend. This is for the sake of the victim and other potential victims, but it is also for the sake of the offender: many victims have shown concern and empathy for the offender, and want to help him to make better use of his life. There is not a fixed line dividing victims from offenders; sometimes the victim or a member of their family has committed offences in the past, and they do not want to see another young person making the same mistakes (in England, almost one third of the male population has a criminal conviction by the age of thirty). Therefore, victims will want the offender not only to apologize but to show that he is sorry and is making a real effort to avoid offending again, by taking part in a programme that will help him with any problems and pressures that led him into crime. He may agree to avoid certain places, or to stay at home after a certain time. He may need work skills (in some cases literacy), social skills such as anger management, or therapy for addiction to alcohol, drugs or gambling. Therefore the community (for example the local authority or non-governmental organizations) have to provide these programmes.

 In preparing this paper, I asked some co-ordinators of mediation services for examples of reparation agreements. One said she had dozens of examples; she gave me two which she had seen that same morning:

  The victim of an assault said he did not want to meet the offender, but knew that the latter’s aggressive behaviour was due to alcohol problems and the break-up of a relationship. What the victim wanted was to know that the offender was receiving and accepting help with those difficulties.

Teenagers had been roughly teasing smaller children who were playing in the street, and this made them frightened and upset. The parents of the younger children wanted the teenagers to understand what the experience had been like for the victims; it was arranged that they would help with a play project for young children in the summer holidays. They did this, and the play project organizer praised their work warmly.

 Another mediation service told me:

  A burglar wanted to apologize to his victims, the couple whose house he had burgled, who agreed that he could write to them from prison (he was serving a three-year sentence). He wrote and said that he had been trying to imagine how they felt when they discovered the burglary; he had done it because he needed money for drugs. Like many offenders, he came from a disturbed background. They wrote back, and said they were willing to meet him face-to-face. He said afterwards that he nearly didn’t go through with it because he was so ashamed; their letters had been so kind, and showed that they were thinking about him. At the meeting he said that he would go to a drug rehabilitation centre, and would find new friends. They asked what he would do if he met his old friends again; he said `I wouldn’t go back with them, because I would be thinking about you, and wouldn’t want to let you down’.

  A young man broke into a school for children with special needs, looking for things he could sell so that he could buy drugs. As he broke a window and climbed over a table, he broke some models made by the children – which had been difficult for them, because of their disabilities. When he was told about the effect on the children, he was very sorry, and himself spent a long time making some models to replace the ones he had broken.

 Other examples include helping to start a youth club (an example of social crime prevention), taking a young person with muscular dystrophy out in a wheelchair, and working for elderly people under supervision: shopping, painting or gardening. One service said that the most usual reparation is simply an apology.

 Often the offender needs remedial education, job training, or other forms of rehabilitation or therapy, and if he commits himself to a suitable programme, this way of making things right is an acceptable form of reparation for many victims. The essential factor in these stories, and many others like them, is that the reparation was what the victims and the offenders themselves wanted, not what a social worker or judge had imposed upon them. They also involve an element of rehabilitation, but (unlike what happens in the conventional system) the victim is involved in planning what is best for the offender, and the offender is motivated by his concern for someone else, or by the knowledge that someone else is concerned about him.

 The community has to play its part by making such programmes or work available; and when the offender cannot repair the full extent of the damage (or is not caught), the community should do what it can to make up the shortfall, for example if the national health service does not cover all medical costs.

 After drawing this optimistic picture I will make a disclaimer: restorative justice is an ideal, and I am aware that ideals are not always achieved. The full form of restorative justice, with participation by both victims and offenders, is not possible or appropriate when the offender is not caught, or denies the act of which he is accused, or shows no sign of regret; or when the victim does not wish to take part. But there are partly reparative measures that can be used, for example the offender can make reparation to the community if the victim does not wish to be involved. A second point: mediators are not perfect, and not every case will be handled in the best possible way (the same is perhaps true of lawyers!). But it is a strong process, ordinary people have common sense, mediators can be trained and supervised, and research results are encouraging, as I will describe later.

 How restorative justice achieves conventional aims

People accustomed to conventional criminal justice may say `That’s all very well, but what about the traditional aims: individual deterrence, general deterrence, containment and retribution?’ The first two depend chiefly on the likelihood of being caught, which is just as great in a restorative system. But restorative justice does not rely on fear; it recognizes that there are other, more effective ways of influencing human conduct: incentives to good behaviour, a process which helps to increase understanding, and a comprehensive crime prevention strategy.

 The third aim is to contain people who are very likely to commit further serious offences. With restorative justice, will we be able to abolish prisons? No, but in a fully restorative system they will only be used when necessary for protection of the public; non-custodial methods of control will be used when possible, such as disqualification from specified activities (driving a car, managing a commercial firm, working with children, going near the place where a certain person lives). People subject to control would also be required to make reparation as far as their circumstances allowed.

 Fourthly, court sentences are supposed to express collective denunciation and retribution for actions which are not acceptable. Restorative justice achieves these aims in a different way. It attaches importance to the actual harm, rather than the fact that a rule has been broken, and it shows this by requiring the offender to make reparation. Then it reinforces the collective values by reintegrating the offender into the community which upholds them.

 Finally, conventional justice either blames offenders and punishes them, or it tries to understand their behaviour and to rehabilitate them. Restorative justice recognizes that many offenders come from disadvantaged backgrounds, but it does not regard that as an excuse for their actions; they have still caused harm to another person or to the community. In conventional rehabilitation, a social worker helped the offender because he needed it; the offence and the victim were often left out of the picture, and the offender could use his deprived upbringing or the unfairness of society as an excuse for his actions. In restorative justice, he is required to recognize how his actions affect other people (often from a similar background to his own); it is for their sake, as well as his own, that he co-operates with the educational or therapeutic programme.

 3. How restorative justice works

In England victim/offender mediation or conferencing can be used at any stage of the criminal justice process. An offence can be referred by police, by prosecutors (who have not yet started to use this method in England, but they have in Scotland), by writers of pre-sentence reports, by courts, after sentence, or before release from prison. If the two parties know each other, for example in a dispute between neighbours which has led to an assault or criminal damage, they can go to a community mediation service (if there is one) instead of the police. If I were recommending a new system, I should propose a three-level process, with two more possibilities as safeguards (Appx I):

 – the least serious offences would be discontinued by the police or prosecutor (depending on their powers in the country concerned), with an informal or formal warning. If an offence arises from a dispute, the case can be referred to a community mediation service.

  more serious offences would be referred to the mediation service for mediation or conferencing.

 – the most serious cases, and those where the offender denied the act, would be prosecuted in court. After a finding of guilt the case would be referred to the mediation service (just as at present the court asks for a pre-sentence report). The court would then endorse the agreement reached by the parties, or in some cases would reduce or add to it.

 The two safeguards are that:

 – cases can also be referred by the Victim Support service, in countries where there is one, because this process is for victims as well as for offenders;

 – they can be referred at any later time, if one of the parties requests it and the other agrees. Mediation can take place when the offender is in prison, if the victim is willing to travel or the prison will release the prisoner for a day. It can take place while the accused is remanded in custody awaiting trial, if he does not deny the act of which he accused. Or `shuttle diplomacy’ can be used, with the mediators acting as go-betweens. For example:

  A woman’s husband left her; a man who lived in the same street knew this, climbed into her house at night, and tried to rape her. She managed to talk him out of it, and called the police. He was sent to prison. When he was due to come out, she did not want to meet him but wanted to know what he would do; although he did not apologize for what he had done, he asked the mediators to tell her that he was going to live in another town, and she was reassured.

 The process of mediation

Preparation and screening of participants In the `more serious’ cases both the victim and the offender should be visited, so that they understand the process and can give informed consent. The mediators should confirm that the accused does not deny the act. Physical and emotional safety are important considerations; in case of doubt, the mediators would recommend that the case should not go ahead. These questions are not necessarily related to the offender’s criminal record or the seriousness of the current offence; it may be the victims of the more serious offences who have the most questions to ask and feelings to express. Both victims and offenders have been helped by mediations where the offender is serving a life sentence for murder, or (in the USA) is on `Death Row’. Cases where the offender has committed repeated violence, including domestic violence, or where the victim is vulnerable or a child, raise complex issues; it would be advisable not to attempt mediation in such cases until considerable thought has been given to them, and until experience has been gained from other types of case.

At this stage the mediators will consider who should take part in the mediation or conference. They will also take steps to ensure that victims and offenders understand the process; have given consent to taking part voluntarily; and are aware that at any stage of the process the victim can leave, or the offender can choose to go to courts instead. One concern in England is that for some victims it could be stressful even to be asked to decide whether to take part; the more mediation is a normal part of the process (as in Austria and New Zealand), the less difficult this decision will be. 

 The proceedings at the meeting or conference are not exactly the same everywhere, but a typical procedure would be:

 – Offender is asked to say what he did (this sets the scene and confirms that the offender admits the act)

– Victim expresses feelings, asks questions

– Other participants contribute

– Outcome agreed: reparation (as defined above), apology, or no further action except the mediation itself

– Community finds resources to enable offender to complete reparation

 These agreements are not ordered by the court. They are enforced mainly by persuasion. If the offender fails to pay compensation, the victim could ask the mediation service to help him or her to sue for damages in a civil court (small claims court), but this rarely happens.

For the `most serious’ offences there would be:

 – Court appearance, then

– Procedure as above if offender does not deny act

– Return to court: agreement approved or modified by judge

 In this case the agreement can be included in the court’s sentence, and is enforced in the same way as other sanctions such as fines.

 If possible the meeting should take place in a neutral place: not the home of either of the participants, nor the premises of an organization that works mainly with victims or offenders. It can normally be arranged quite quickly, but there should not be pressure on the victim to decide before they are ready.

 The way it works can be shown by an example.

 A case history from Coventry

Coventry Cathedral was bombed during the second world war, and rebuilt in a modern style; only the old spire remains. It has some fine examples of modern art, including a large tapestry by the artist Graham Sutherland. The cathedral has been the focus of many initiatives to promote reconciliation between the people of England and Germany. But recently one young man was caught (with others) vandalizing a chapel in the cathedral, breaking an ancient icon, setting fire to an old bible and drawing swastikas. He was horrified to find that news of his actions had reached national and international news. You can imagine what would have been the conventional response: the church has been desecrated, we must make an example of this young man to give a clear message that this cannot be tolerated. He would have been sent to prison, and would have come out more angry than before.

 But the local victim/offender service found that the priest responsible for the cathedral building would be willing to meet the offender; he had spoken to the cathedral staff and they were willing that he should, as an act of reparation, work there on Saturday afternoons, and the young man was willing to do it; so the judge deferred the sentence for three months, and told the young man that he should start saving up, because he would have to pay compensation.

 They met, with mediators, and the priest explained how hurtful the damage was to people who used and loved the cathedral; then for the next few Saturdays the young man came to help prepare the cathedral for the Sunday services, cleaning the stone floor, polishing the wood and brass. On one occasion the great tapestry had to be taken down to be cleaned, and the priest explained its symbolism; he pointed to a human figure, which looks very small when seen from the ground, but is actually life-size, and to demonstrate this he allowed the young man to lie down on it to measure himself against it – perhaps the only person ever to do so. He was also allowed to play Scott Joplin on the cathedral organ.

 Cathedral staff and volunteers explained the significance of the cathedral furnishings, and the co-ordinator of the mediation service accompanied him to the cathedral in her own time on Saturdays to make sure he went there; in talking to him she found that he had left home and was not rebelling against the church, but against his over-strict parents who had become born-again Christians. (This shows that the work was not the only important thing: the relationship with other people was also significant. This means an investment of time – so adequate resources are vital if a programme like this is to succeed.)

 When the case came back to court the priest wrote to the court saying he was satisfied with what the young man had done, and did not require any compensation; but the judge made a compensation order. So the priest invited the young man to choose what to do with the money; they agreed to buy a pair of candlesticks for the chapel which had been damaged, the young man himself ordered them and paid for them, and attended the service at which they were consecrated. He did not become a Christian, but said that he now respected the beliefs of members of the church; he went back to live with his parents, has a good job, and has not offended again.

 4. The administration of restorative justice

In England some victim/offender mediation services are operated by independent non-governmental organizations (NGOs), and this is the model I prefer, precisely because it is independent. Independence is a relative term, however; some services are limited by lack of funds; and because they are independent, they have to work hard to build links with the official system. The NGO can be established by social workers, probation officers, police, court (judge or prosecutor), education, health, Victim Support, mediators, and other capable members of the local community: business people, trades unionists, lawyers, church people, or other NGOs. For some of these professionals, this will be a new role: not working face-to-face with clients, but creating and managing an organization. Another method is multi-agency co-operation. In any case management should involve some of these agencies, some of whom can also share the funding, and should include at least one representative of the mediators. If the service is managed by only one agency, such as the probation service, at least it should have an advisory committee to supervise the programme.

 Who are the mediators? Should they be lay people or professionals? One of the advantages of mediation is the opportunity it offers for involving `ordinary’ members of the community, as well as professionals such as social workers and lawyers. Their entry requirement to the training course is common sense; they have obtained their qualification from the `university of life’, and their `special subject’ is the area where they live. Whether they are professionals or lay people, they need specific training as mediators; this is mainly practical (`learning by doing’) and is followed by an assessment including an interview and a role-play; some may not, in the end, have the qualities needed to be mediators. In some mediation services they work as volunteers, because they believe that there is an advantage in being able to tell the participants that they are offering their skills free for the benefit of the community. It also makes a difference to the cost of using two mediators for each session, which is widely regarded as good practice. They also receive support and supervision from the co-ordinator (administrator). In other services, after a probationary period, they are paid for each session; this may make it possible to attract lay people who need the money, and is an incentive to come to regular in-service training, which is essential to exchange experience and keep mediators’ skills from becoming rusty. In England a `National Vocational Qualification’ in practical skills is available in many fields of work, and mediation is about to be added to the list.

 `Professional’ is a word with two meanings. It can mean a service provided by trained people, of a recognized standard, with a procedure for complaints if that standard is not met. In that sense mediation by lay mediators can and should be professional. But it can also mean people who earn their living by such work, and in some ways it would be better if mediation did not become `over-professionalized’, with academic entry requirements: another career opportunity for the middle class. If members of other professions such as law or social work want to mediate, it is important that they should be trained specifically in mediation, because training in other disciplines is different. Trainers of mediators may however be professional in this sense, provided that they have had personal experience of mediating; and perhaps we need a new profession of mediation administrator, which requires a wide range of skills. I believe that if the service is to flourish, administering it should be the administrator’s only job, so that he or she has a strong incentive to make it succeed; it should not be done in time left over from another job.

 5. Safeguards

Any process involving people’s lives needs safeguards, both for the clients and the practitioners. I will suggest five principal ones: clearly defined aims, standards, training, accreditation, and monitoring of performance. I should add that these are ideals which are still far from being completely achieved in Britain; they are a `counsel of perfection’.

The first priority is to define the primary aim, in general terms, and the measurable objectives by which this aim can be achieved. This is also essential before mediators can be trained, and before `success’ can be measured. If we take the view that, although individuals are important, the community is even more important, we might define the primary aim as:

 -to restore community harmony at least to its level before the harmful act was committed.

 The objectives would be:

 – to help the victim to recover

– to show the offender that his action was wrong because it harmed someone else

– to enable him (or require him) to make amends, and

– to reintegrate him into the community.

– to ensure that the community made it possible for the offender to make reparation and be reintegrated in this way, and

– to draw any lessons for crime prevention strategy and pass them to the relevant authorities.

To do this the service should:

 – offer both victim and offender the opportunity to communicate, face-to-face or indirectly; it would be for them, not the service, to decide how to use this: to agree about reparation, to give and receive an apology, or simply to ask and answer questions and express feelings.

– follow-up the participants, to ask whether the process was helpful.

 Other people may not define the aims and objectives in quite the same way; the important thing is that they should be defined so that the project knows where it is going, and that they should be based on the restorative principle of healing. This aim and these objectives would be the basis for standards, training of mediators, accreditation, and monitoring.

 The next safeguard is that there should be standards, both for mediators and for mediation services. For example, Mediation UK has published Practice standards (Mediation UK 1998), and in Germany the Service Bureau for Victim/Offender Mediation and Conflict Resolution has issued standards, usefully divided into `Essential’ and `Desirable’ (Servicebüro 1995). Mediation UK’s Directory of mediation and conflict resolution trainers (1998) also includes a code of practice for trainers, and guidelines for making contracts with them.

 Examples of standards for a mediation service are: independence, record-keeping, monitoring, and the satisfaction of `customers’. Mediators should make sure that clients are aware of their rights, especially the right to leave the mediation process at any time; legal advice should be available, but lawyers’ participation in mediation sessions is not recommended. Standards should also include `equal opportunities’: the principle that all clients, staff and mediators should be treated equally, regardless of gender, religion, ethnic background, skin colour, and similar characteristics. There should be a complaints procedure, for clients, staff and lay mediators, and they should be informed of it; it should of course include mediation at an early stage. Each service should have a procedure for passing on suggestions for crime prevention policy.

 For mediators, standards include respect for all people, confidentiality (except as required by law or with the agreement of the parties), neutrality, and evaluation of their own work and each other’s after each session.

 The third safeguard is adequate training of all concerned: mediators, co-ordinators (administrators), and trainers themselves; when it becomes possible, trainers should have direct experience of acting as mediators.

 Fourthly, to assess whether these standards are being followed, there should be regular accreditation for these categories of people and for mediation services. In those cases which go to court after mediation, the court will assess whether an agreement is unreasonable from the point of view of the victim or the offender.

 Last but not least, the participants in every case should be followed up (with their permission) after a stated period of weeks or months, to find out about their well-being, and to collect statistical information about the effect of the process on them.

 Research findings

In accordance with the objectives I have listed, the criteria for evaluation concentrate on the effects on the victim and the offender. Several studies have found a high proportion of satisfaction among victims; the exception is New Zealand, where in the early days of conferencing not enough attention was paid to the needs of victims (Morris et al. 1993), but changes have now been made. In England, nearly all those who took part in mediation felt that it was important to them to receive answers from the offender, to tell him the effects of the crime, and to receive an apology; the proportion who attached importance to restitution was lower (Umbreit and Roberts 1996). After mediation, fewer American victims were upset about crime or afraid of being re-victimized by the offender (Umbreit 1994). Large-scale Australian research into conferencing found that more offenders felt ashamed of what they had done, and had increased respect for the police, than those who went to court. After a conference fewer victims felt angry with offenders than before it, and the proportion who felt sympathy for them almost doubled (Sherman and Strang 1997).

 Does mediation reduce crime? Although as I have said this is not a primary objective, it is a legitimate question; we need at least to know that crime does not increase. In the United States, 18 per cent of offenders who took part in mediation were reconvicted within one year, and 27 per cent of those who did not. The difference, however, is not statistically significant. English figures are even less conclusive (Dignan 1990; Umbreit and Roberts 1996: 60-1). As we know, reconvictions are not a reliable measure of re-offending; in addition, there could be a self-selection effect: since participants are screened for suitability, and mediation is voluntary, those who are selected for mediation and agree to take part may be the ones who are less likely to re-offend anyway. But there are no signs that recidivism is higher; there are other short-term advantages, and there may be long-term ones.

 6. Conclusions

I have tried to show that the idea of restorative justice is not a new one, and in many ways it is common sense; although common sense must be accompanied by correct facts, clear thinking and research, because without them, it can easily be confused with prejudices. Common sense told people that the sun revolved round the earth until the more accurate research of Copernicus proved otherwise. I am glad that Poland is also playing an active part in this new revolution. Here is a way of responding to crime in which we begin by helping the victim. The old common sense said that crime is wrong because it breaks the law, and people who break the law will be hurt by agents of the state – if they are caught. The new common sense tells us that crime is wrong because it hurts someone else, whether the offender is caught or not; if he is caught, he will be shown this, and there will be an opportunity for the victim, if he or she wishes, to ask for explanations and to make him understand. Then he will not be harmed further, but will be given the opportunity to make reparation to the victim and the community. He will be expected to do what he can to avoid making more mistakes, with the help of any people or organizations in the community who can contribute. I believe that by responding to criminal acts in this way we can not only restore, but strengthen, the community and its resistance to crime.

REFERENCES

 Braithwaite, John (1998) Restorative justice: assessing an immodest theory and a pessimistic theory. Canberra: Australian Institute of Criminology: webmaster@aic.gov.au

 Braithwaite, John, and Philip Pettit (1990) Not just deserts: a republican theory of justice. Oxford: Clarendon.

Christie, Nils (1977) `Conflicts as property.’ British Journal of Criminology, 17(1), 1-15.

 Christie, Nils (1982) Limits to pain. Oxford: Martin, Robertson.

 Elias, Robert (1993) Victims still: the political manipulation of crime victims. Newbury Park, CA: Sage.

 Hough, Michael, and Julian Roberts (1998) Attitudes to punishment: findings from the British Crime Survey. (Home Office Research Study 179.) London: Home Office.

 McGuire, James, and Philip Priestley (1995) `Reviewing “What works”, past, present and future.’ In: James McGuire, ed. What works: reducing re-offending. Guidelines from research and practice. Chichester: Wiley.

 Mediation UK (1998) Practice standards for mediators and the management of mediation services. Mediation UK, Alexander House, Telephone Avenue, Bristol BS 1 4 BS.

 Mediation UK (1998) Directory of mediation and conflict resolution trainers. Mediation UK, as above.

 Morris, Allison, Gabrielle M Maxwell and Jeremy P Robertson (1993) `Giving victims a voice: a New Zealand experiment.’ Howard Journal, 32 (4), 304-321.

 Penal Reform International and International Centre for Prison Studies (1998) Newsletter: Penal Reform Project in Eastern Europe and Central Asia, No. 1. PRI, 169 Clapham Road, London SW9 0PU; 2/30 Ul. Falata, 02-534 Warszawa, Poland.

 Rzepliński, Andrzej (1984) Private communication.

 Servicebüro für Täter-Opfer-Ausgleich und Konfliktschlichtung (1995) Standards: ein Handbuch für die Praxis des Täter-Opfer-Ausgleichs. Servicebüro, Aachener Strasse 1064, D-50858 Köln, Germany.

 Sessar, Klaus (1992) Wiedergutmachen oder Strafen: Einstellungen in der Bevölkerung und der Justiz – ein Forschungsbericht.Centaurus.

 Sherman, Lawrence W, and Heather Strang (1997) RISE working papers: the reintegrative shaming experiments for restorative community policing. Research School of Social Sciences, Australian National University, Canberra.

 Stern, Vivien (1998) A sin against the future: imprisonment in the world. London: Penguin.

 Umbreit, Mark (1994) Victim meets offender: the impact of restorative justice and mediation. Monsey, NY: Criminal Justice Press.

 Umbreit, Mark S, and Ann Warner Roberts (1996) Mediation of criminal conflict in England: an assessment of services in Coventry and Leeds. Centre for Restorative Justice and Mediation, School of Social Work, University of Minnesota, 1386 McNeal Hall, 1985 Buford Avenue, St Paul MN 55108, USA.

 Wright, Martin (1989) `What the public wants.’ In: Martin Wright and Burt Galaway, eds. Mediation and criminal justice: victims, offenders and community. London: Sage.

 Wright, Martin (1992) `Victim/offender mediation as a step towards a restorative system of justice.’ In: Heinz Messmer and Hans-Uwe Otto, eds. Restorative justice on trial: pitfalls and potential of victim/offender mediation -international research perspectives. Dordrecht: Kluwer.

 Wright, Martin (1996) Justice for victims and offenders: a restorative response to crime. 2nd ed. Winchester: Waterside Press.

  c:rjpopowo 98 9634

Appendix I: How restorative justice can be used (rev)

 (1) Least serious offence: Discontinue (with or without a Warning)

 (2) More serious offence

 police

accused admits act or `does not deny’ accused denies guilt

court

guilty not guilty

conference conference

agreement; apology, conference does not agreement

reparation, etc. reach agreement

(no further court court imposes court accepts agreement

involvement) sentence* (reparative or adds to it

if possible) or reduces it

mediation service mediation service

monitors agreement monitors agreement

(3) Most serious offence

police

prosecutor

accused does not deny accused denies guilt

not in public interest to court court

prosecute (e.g. conference

or reparation already) confirms guilt guilty not guilty

conference

agreement no agreement

court accepts agreement court imposes

or adds to it sentence* (reparative

or reduces it if possible)

* victim or offender can request mediation after sentence (sentence is not affected)

1     In 1970 to 1982 privately prosecuted criminal cases comprised between one-fifth and one-quarter of all criminal cases in Poland. In 1978, for example, there were almost 30 000 private criminal cases, of which judges discontinued about 20 000, and in one-third of these, the reason for discontinuance was reconciliation (Rzepli_ski 1984).

2     Readers of the British Crime and Disorder Act 1988, however, will find that there `reparation’ refers only to work for the victim or the community; compensation is dealt with by a separate court order.

Restorative justice: from punishment to reconciliation The role of social workers

Paper presented at Seminar on New Trends in Juvenile Justice in the Federation of Bosnia and Herzegovina, Sarajevo, 4-6 March 1998

The Seminar was organized by the United Nations Centre for International Crime Prevention

 Published in European Journal of Crime, Criminal Law and Criminal Justice, 1998 6(5), 267-281

ABSTRACT

The principles of restorative justice are summarized. Many crimes harm individual or corporate victims, and the first response should be to repair the harm; the offender, if known, should make reparation for this; victims and offenders should be offered the opportunity to communicate; the community should be involved; and there should be feedback from this process to crime prevention policy. Secondly, the practice is outlined: victim/ offender mediation requires preparation of the parties, a procedure for the meeting, and follow-up. Thirdly, the requirements when setting up a service are summarized, including a clear statement of aims, arrangements for involving the community, safeguards for victims and offenders, and a policy for equal opportunities (non-discrimination). In conclusion, the role of social workers is suggested: not necessarily handling all the work themselves, but enabling members of the community to take part, with suitable training and supervision. The advantages of using volunteers or paid staff are compared. Restorative justice can contribute towards healing those who are damaged by crime.

Introduction

It is an honour for me to be invited to speak at this workshop, and I welcome the opportunity to share with you some of the ideas which have been developing in recent years. This is a significant moment, because the Federation of Bosnia and Hercegovina is re-examining its criminal justice system, together with many other aspects of society, and indeed this Workshop is part of that process. I hope I am aware of the dangers of bringing ideas to another country from an off-shore island with a different legal system; we can never fully understand someone else’s situation. I regret that I do not have knowledge of Bosnian law; but as the law is being re-written, perhaps that does not matter so much! But I have heard a little about conditions here; for example, I understand that there are relatively few people in prison, and that the arrangements for visits to prisoners, and by prisoners to their families, are considerably more liberal than they are in Britain. I do not know the prison population here, but perhaps it is similar to the proportion in Macedonia and Croatia, which in 1995 was 55 per 100 000 population, or for Slovenia (25), both of which compare favourably with England and Wales (100 and rising fast: it has now reached 64 000). A low prison population is often a sign that a country is humane, law-abiding, or both.

As an introduction, perhaps I should say a little about myself, so that you can put my proposals in context. On the programme an academic label is attached to my name, but for more than twenty years I worked for voluntary organizations, that is, non-profit organizations whose executive committees are unpaid, and in many cases much of their work is also done by trained, but unpaid, volunteers. They are non-governmental organizations (NGOs), although some of them receive funds from central or local government as well as from individual citizens and philanthropic trust funds. For several years I was director of the Howard League for Penal Reform, which campaigns for reform of the criminal justice system and receives no government money. Later I worked for Victim Support, which now has 12 000 trained volunteers throughout England, Wales and Northern Ireland, who offer support to people who have been victims of crime, and 4 000 committee members, as well as 800 staff, in 370 local groups. At present I am a volunteer community mediator in South London where I live, and a member of the executive committee of Mediation UK, the national organization for community mediation, victim/ offender mediation and mediation in schools. It is much smaller than Victim Support, but it is growing. So you will understand that I believe strongly in the ability of people from all walks of life to be trained and to undertake responsible work in their local communities in a professional way, even though, as volunteers, they receive no money except expenses. Each mediation service is administered by a co-ordinator, who is usually paid; he or she is responsible for the training and supervision of the volunteer mediators. But this is not the only way: some mediators are trained volunteers, some are full-time paid staff, and others work perhaps for a few sessions a month in their free time at evenings and week-ends and are paid for each session.

I have been asked to speak about restorative justice, and perhaps the best way to begin is by describing two actual cases. Obviously there is no such thing as a `typical’ case, but they have some common features. Then I will describe the principles of restorative justice. It is for you to consider them in relation to your country; I believe them to be universally valid. After outlining the principles, I will say something about the practice, and the requirements when a service is being established; finally I will consider the place of restorative justice in relation to the conventional system, and the role of social workers. First the case histories:

Lillian is an 81-year-old lady living alone. A robber broke into her house while she was there and stole £17; she struggled to hold onto it, and several of her fingernails were broken. The incident was especially upsetting for her because there had been a similar incident two years previously, shortly after the death of her husband, in which a larger amount of money was stolen.

She contacted the victim/offender mediation service herself after reading about it in the local newspaper, and after being informed by the police that a 22-year-old suspect had been arrested. She wanted to meet him face-to-face to tell him that she was both angry and hurt; she said that meeting him would `put many ghosts to rest’. A meeting was arranged in the prison where he was held, at which she also told him that the two incidents had made her a prisoner in her own home – she daren’t leave doors or windows open. He apologized and said that he had been on drugs; also his mother had tried to help him and he had thrown this back in her face, and he now regretted the hurt he had caused her. He had no money with which to repay Lillian, but she suggested that he should undertake treatment for his drug addiction, and he agreed to this. He was later sentenced to three years’ imprisonment; we have no information as to whether drug treatment was available for him in prison, but we have heard that he does some charity work from prison. He said afterwards that the experience had made him look at his life and where he wants to go; Lillian expressed sympathy for the position of offenders generally and thought that unemployment and lack of opportunity may contribute to their behaviour.

(Summarized from information supplied by Sheffield, England, Victim/Offender Mediation Project, and its Annual Report 1996-97)

Peter was a 16-year-old schoolboy. He had a part-time job after school, and was trusted to count the money received in the business and take it to the bank. One day he was found tied up, lying on the floor; the till was open and the money gone. He said that a gang of four or five boys had come into the store, tied him up, and taken the money. But when he was questioned he changed his story; no one else remembered seeing four or five boys enter the store at that time, and no one else’s fingerprints were found on the till. Eventually he confessed that the `robbery’ was arranged by him and a 17-year-old friend, Sam. He handed back the money he still had. The court placed him on probation, and referred the case for assessment to see if victim/offender conferencing was appropriate (Did the victim wish to meet him? Was he willing to meet her? Were they both mentally and emotionally capable of taking part in the process?).

The victim wanted to talk to Peter, because several questions were still unanswered. Peter’s parents agreed to the meeting, but Sam’s did not. A conference was held with the victim, Peter and his parents, and two mediators. The victim told her story, and Peter told more details of the robbery than he had done before. He had brought money from his savings to pay the remainder of his half of the money stolen, and said that if Sam didn’t pay the other half, he would pay that as well. Peter agreed that he should do something more than hand back the money, because of the worry and betrayal experienced by the victim; she suggested that he should do a cleaning task that would take 16 hours. At this point Peter’s father asked if he could speak; he thought that 16 hours was not enough, and 40 would be more appropriate to the seriousness of the offence. After some discussion Peter agreed to do the extra work, for the local community.

The victim was pleased with the outcome. Peter said he felt better now it was over, and three years later has not re-offended – but Sam has.

(Case history from Carolyn McLeod, Co-ordinator, Community Justice Program, Washington County Court Services, Stillwater, Minnesota, USA)

PRINCIPLES

These cases show the basic ideas on which restorative justice is based (summarized in Table 1). Firstly, it stresses that criminal acts do more than break the law – they cause harm, and society’s primary response should be to try to repair the harm (Wright 1996). This can be done by offering help to the victim; in Britain it is done by a separate voluntary organization, Victim Support, and could be done by other victim advocacy groups in the future.

Secondly, if the offender is known, he or she should also be required to make reparation for the harm, insofar as that is possible. Reparation may be made to the victim him- or herself, or to the community. It need not be in the form of money; sometimes the offender can do some work for the victim, or if the victim does not want that, for the community. Often offenders feel themselves to be disadvantaged; it can be helpful if they recognize that there are other people just as disadvantaged as they are, and to find that they have something constructive to give. They may undertake work which otherwise would not be done at all, for example helping disabled children to swim or children with learning difficulties to read, taking wheel-chair users to the shops, helping to run a lunch club for elderly people, or working (under supervision) to install door locks and repair windows in the homes of victims of burglary. Quite a number of victims do not want reparation for themselves; for them, the best way for the offender to show that he is sorry may be that he agrees to go to school regularly, keep away from the `friends’ who led him into trouble, take part in a programme such as anger management, treatment for addiction to drugs, alcohol or gambling, or learn a skill so that he can get work; these are practical ways of making reparation, and they help the offender to build his or her self-esteem, avoid re-offending, and be re-accepted into the community.

Thirdly, in restorative justice both victims and offenders are offered the opportunity to communicate, if they are both willing. This is almost impossible in the conventional court process but many people, like Lillian, want it. They do not only meet to discuss reparation; often victims want to express their feelings, to tell the offender the effect of the crime, and to ask questions which only the offender can answer. Offenders in turn often feel genuine regret after hearing this, and want to apologize and try to make reparation. The process must be voluntary if it is to mean anything (ways of making sure that the mediation (conference) is voluntary are summarized in Appendix A). If victims do not want to meet offenders, they can ask family, friends or a victim support worker to do so on their behalf. Sometimes these meetings are one-to-one, and are called victim/offender mediation; sometimes they become larger gatherings, often called `conferences’. If a young person has no family, or is separated from them (which I know has happened to many young people in Bosnia and Hercegovina), efforts are made to find someone who is significant in his life (perhaps a teacher, youth club leader, or volunteer mentor or befriender) to support him.

Fourthly, the community should play a part both in helping the victim and in making it possible for the offender to make amends and to be reintegrated into the community. This may mean providing training, therapy or other help, or enabling the offender to find work so that he can pay compensation. The government, commercial firms and NGOs have a part to play. This is easier said than done, but they may at least be able to provide temporary work experience for young people; it is an essential part of the offender’s reintegration as a member of the community.

Finally, there should be feedback of information learnt from this process to the authorities responsible for crime prevention policy. Restorative justice does not rely on deterrence (although many offenders fear the prospect of meeting their victims), and a problem-solving approach to crime prevention is needed.

This new idea has inspired many of us. Restorative justice, as a response to crime, is different from criminal justice, because it is not based on balancing the harm caused by the offender with more harm (punishment) to the offender (Wright 1996); Gandhi said `An eye for an eye leaves everyone blind’. Instead it aims to repair, make good, and heal. I believe that it can bring benefits to victims, offenders, and communities. Some people say that in modern urban societies families have been divided and the sense of community has been lost; this could be a way of bringing families together and re-building communities. For some time punishment and retribution have been regarded as the norm; but a study of history and of other cultures shows that the practice of reparation is also very old and widespread.

PRACTICE

I have been asked to give a practical focus to my talk, and there can be two aspects to this: the process of mediating or conferencing and the organization of a mediation or conferencing service.

1. Victim/offender mediation

Details of mediation practice vary; there is no one `right’ model, but some points are always important. I will sometimes use the word `should’; please take this simply as an expression of my opinion of a good way of doing things, which may need to be adapted to suit other circum­stances. Other ways are possible, provided that their effects on both victims and offenders have been thought through. I will describe the process; my description is a com­bin­ation of the way it is being done in some places, and the way which I would choose if I were running a service. The word `victim/ offender mediation’ usually refers to communic­ation between a victim (or victims) and an offender (or offenders) assisted by mediators, and `conference’ to meetings where family members and others are also present. I will use `mediation’ as a general term to cover both kinds; there is no rigid distinction between them. There are three stages, all important: preparation, conference, follow-up (Table 2).

Preparation: both parties should be seen separately, to make sure that they understand mediation, have realistic expectations, and seem likely to use the opportunity constructively and safely. The mediators decide which family members or others to invite to the meeting; often members of the extended family, and quite young brothers and sisters, can make helpful contributions. If a young person has no family, they try to find someone else to support him. People may be asked to travel long distances to attend a meeting, just as witnesses are in a trial. Sometimes the victim does not want to meet the offender, and the mediators act as go-betweens.

Conference: if the meeting goes ahead, a neutral place is found. The mediators arrive half an hour early to discuss how they will handle the session. There are advantages in using two mediators (for example male and female, or from the same ethnic backgrounds as the victim and the offender). The mediators will have been trained in important details, such as who comes into the room first, how the seating is arranged, who is asked to speak first. Above all they should have a clear idea of their aim: what makes a good mediation session? Should the aim always be an agreement to make reparation, or is it sometimes enough for the two parties to understand each other better? If the crime arose from a dispute, is it possible for them to resolve the dispute? This may be more important than dealing with the single incident which constituted the crime.

One way of organizing it would be like this: the mediators introduce themselves and those who are present, ask the parties to sit down and agree to ground rules, and invite the offender to say what took place. This constitutes an admission of the act, although not necessarily of the crime: for example, he may admit that he took his friend’s car, but may claim that it was not a crime because he believed that his friend had given permission. Then the victim is invited to give his or her side of the story, and to describe the effect of the crime, in financial, physical and emotional terms. The offender is invited to respond, and to say who was hurt by his act; he may want to explain why he did it, and usually offers an apology. Often the victim wants the offender to do something to show that his apology is sincere, as I mentioned earlier: paying compensation (restitution) is one way, but others include community service or co-operation with a rehabilitation programme.

Follow-up: this is as important as preparation. Victims are asked if the mediation service can contact them again later, to check whether they are satisfied with the process, and whether reparation, if any, has been completed. If possible there should be routine monitoring to assess the work of the service, and from time to time more detailed in-depth evaluations. Offenders are also followed up.

2. Organization

A number of decisions need to be taken by the steering group which is setting up the service. They are listed in Mediation UK’s booklet Victim/offender mediation: guidelines for starting a service. Some of the points to be decided are:

Should the service use paid staff or trained volunteers as mediators? Volunteers have advantages: they represent the local community, they are available in the evening and at weekends, and cost less than paid staff; but they are not cost-free, because they need training, support and supervision, and out-of-pocket expenses. Victims and offenders may respond better to people who are acting for the common good, without pay. There are also benefits for the volunteers: they learn extra skills for use in their daily lives and their work, and if they are unemployed they often gain self-confidence which helps them when applying for jobs. Services often combine a paid co-ordinator and volunteer mediators. A few use trained `ordinary’ people (that is, not social workers or psychologists), but pay them for each visit or conference; this gives the mediators an incentive to attend continuing training and `refresher courses’. In any case training is important, together with procedures for `quality assurance’ and safeguards for victim and offender.

Should the service be statutory (official) or independent? In England some services are run by a `partnership’ of social services, police, prosecutor, the education department and other govrnment agencies. We recommend that they should not be operated by only one service, such as social services or the police, so that there is no appearance of being more sympathetic to offenders or to victims. Others are independent non-government organizations, with their own management; but they have to work closely with the `system’. Often official agencies are represented on their management committees, and they may receive funding from local or national government, as well as philanthropic trusts. (Options for the organization of victim/offender mediation are summarized in Table 3.) Advocates of restorative justice believe that there is a danger that its ideals may be modified by people in the `system’ to fit in with traditional concepts of retribution or rehabilitation.

At which point in the criminal justice process should mediation operate? Mediation can take place at any stage of the criminal justice process. In some countries (England, Australia, New Zealand) the law allows police to `divert’ less serious cases to mediation. In others the prosecutor can discontinue the case if it is `not in the public interest’ to proceed; one ground for discontinuance can be that reparation has been made. In England the verdict (finding of guilt) is separate from the court’s decision as to what sentence to impose; this period of up to 28 days can be used for the preparation of reports on the offender, or for mediation. Mediation can also take place after sentence, or even after release from prison.

I have said that communication between victim and offender should be voluntary; but when an offender has agreed to make reparation, I see no reason why some pressure should not be placed upon him to complete it. This can be done by postponing the decision to prosecute, or the sentence, until the prosecutor or the judge has seen whether the reparation has been completed. It is also possible for mediation to take place after the sentence; in this case the offender and the victim know that the sentence will not be affected, and that the offender has no reason to make an apology if he does not mean it.

What types of offence and offender should be accepted for mediation? This conference is about juvenile justice; but if we are thinking of victims as well, we should not exclude them when their offenders happen to be adults. However, I recognize that a start has to be made somewhere. Similarly, some research has found that victims of petty offences do not want to be bothered with mediation; the more serious the crime, the more emotions they may want to express. Therefore there need be no limit on the seriousness of offences referred for mediation. But some offences are clearly so serious that they cannot be resolved by mediation alone, and the case has to go back to a judge who can decide how much the offender’s liberty needs to be restricted.

Early diversion saves the time of prosecutors and courts, but is not possible with serious cases, unless a judge is involved as in New Zealand, where all juveniles cases except homicide go to a conference, but the more serious ones are then brought before a judge who may decide to impose an additional sentence in the public interest. For the most serious offences, mediators must have experience and advanced training in the effects of grief and trauma and the operation of the criminal justice system; careful preparation of both victim and offender are needed over a long period. Appendix B suggests how restorative justice can be used in less serious cases and more serious ones.

Requirements

What do you need if you are to set up a service to offer restorative justice? Some of the requirements are:

A group of people with understanding of the restorative justice ideal

The ability to persuade criminal justice personnel of the advantages, and reassure them over any doubts they may have.

A clear statement of aims. These should include the satisfaction of victims with the process, and offenders’ feeling that they have been fairly treated. Some policy makers want to judge the programme according to the percentage of offenders who are re-convicted, the amount of reparation paid or the number of hours of community service; but many advocates of restorative justice consider that it is justified by the benefits to victims and offenders (as measured by the follow-up which I mentioned earlier). It is essential to be clear about aims before training begins, and before `success’ can be measured. Research should be qualitative as well as quantitative.

A procedure for determining policy and practice. The basic principles will be determined in advance, but new situations will arise, and the service will need to decide how to handle them. It is useful to have a small group of people ready to deal with these questions.

Funds, premises, staff and/or volunteers. It is recommended that the project leader should be full-time, to ensure that the project maintains its momentum; administering the service should not be merely one of the tasks of a social worker or police officer. To avoid conflicting priorities, a mediator should not be engaged on the same case in another role, for example as a social worker. Funds should be enough to pay the expenses of those attending the conferences, and if necessary to pay for interpreters.

Arrangements by which the community will provide resources to enable offenders to make reparation: skills training, treatment for alcohol/drug addiction, opportunities for community service, work to earn money to pay reparation (easier said than done!) I use the word `community’ loosely, to mean for example local authorities, businesses, voluntary organizations, religious groups, and individuals.

Safeguards for victims and offenders: to ensure that they take part voluntarily and are not under pressure to accept unreasonable agreements – and to ensure physical safety of all parties, including the mediators.

Equal opportunities policy. Mediation services have a section in their constitution, stating that they will treat everyone equally (victims, offenders, staff, volunteers) regardless of their ethnic background, religion, language or other personal factors. This policy is emphasized during the training of staff and volunteers, and regularly monitored.

A complaints procedure for participants, staff and volunteers. The procedure should itself include mediation at an early stage, if informal resolution is unsuccessful.

A method of record-keeping and follow-up, and where possible more detailed research.

Research in England (Umbreit and Roberts 1996) has found that both victims and offenders who had taken part in mediation were more satisfied with the justice they had received than those who had not; in some cases there was a significant difference. Victims appreciated receiving answers to their questions, telling the offender the impact of the crime, and receiving an apology. An Australian study of drink-drivers, juvenile offenders and victims (Sherman and Strang 1997) found that after conferencing, as compared with courts, more offenders in both groups were ashamed of their actions, had increased respect for police, and recognized that the process allowed them to make up for what they had done. Victims were much more likely to receive an apology and some form of restitution; they were less likely to believe that the offender would repeat the offence. After a conference, fewer victims were angry with offenders and more felt sympathy for them.

CONCLUSION

Restorative justice can be put into practice in different ways. The way I have described could be called `communitarian’: it involves individuals and groups from the community as much as possible, as mediators and managers. Its principle is `As much State as necessary, as little State as possible’; in some cases it will be appropriate for local authorities to provide resources on behalf of the community. As far as possible the `owners’ of the crime, and those most affected by it, respond to it. Both social workers and members of the community share responsibility for providing the services which support victims and enable offenders to make reparation by organizing community service projects, drug and alcohol treatment, and above all by providing work.

If you agree with this philosophy, the role of social workers is not necessarily to handle everything themselves, taking it out of the hands of the offenders, victims and their families (Christie 1977), but to lead, to enable people, to empower them to resolve their own conflicts as much as possible. But this principle is only acceptable, I believe, if it is combined with restorative justice. To give people power to inflict punishments would damage the whole community; taking away a person’s liberty is a decision which should only be made by judges.

Social workers may undertake mediation themselves, perhaps working with a trained volunteer as co-mediator; but their role will also be to organize the service, to be members of management committees, to train people in mediation skills and to support and supervise them (Umbreit 1993). But first the social workers themselves will need to be trained in mediation skills, which are different from those of social work.

When justice is fully restorative, it will be based on healing, not punishment. The contrast between the old and the restorative principles has been summarized by Dr Howard Zehr (1989), who was the director of one of the first Victim/Offender Reconciliation Programs (see Table 4). Restorative justice supports and involves the victim, holds the offender accountable, requires him to make amends, uses the resources of the community, and helps to reintegrate the offender into the community. It does not concentrate only on the outcome, but is concerned about the effect of the process on the participants. Its success is measured by the effect on the victim and the offender. If it is to achieve this, without dilution of its ideals, it needs initiatives from the top and support from the community; those who do not at first accept the idea should be persuaded, not compelled, to adopt it (Bazemore and Pranis 1997).

But how does it compare with the conventional system? On reconviction rates, different researchers have found different results; in some studies, the reconviction rates have improved, in others there has not been a significant change; but none has found that the figures were worse. Does it replace imprisonment? This is not one of its aims, but in New Zealand the number of young people in custody went down substantially: before conferencing was introduced there were 200 residential places for young offenders, after it only 76. There was also a sharp fall in the numbers coming to court, from 63 per 1 000 young people aged 14-16 in the population before, to 16 per 1 000 afterwards (Maxwell and Morris 1996: 93). As a result it can hardly fail to save money. I understand that in July 1997 Zenica prison had 342 prisoners and 180 staff, so that the average cost of each prisoner must have been more than half the salary of a prison officer. The same report says that `It is likely that the prisons will be put under more pressure as this situation normalises’ – if that is true, then it will be worth taking any opportunity to avoid a return to the so-called normality that puts more and more people in prison. In earlier days, I understand that in Bosnia i Hercegovina ex-prisoners were guaranteed a job, and a degree of supervision was often provided by the employer and a works council. That may not still be possible, but it would be worth looking at the advantages, wherever custody is not necessary for the protection of the public, of trying to provide the work, the supervision and the opportunities for reparation without the extra difficulties caused by sending people to prison first. In the United States, some states are cutting schools budgets to pay for prisons, In England, in February 1998, the government announced an extra £22 million for schools and an extra £100 million for prisons. Those priorities cannot be wise. In England, 72 per cent of male young offenders sentenced to custody were re-convicted within two years; for those aged 14 to 16 when sentenced, the figure was 89 per cent (1994 figures). This, as well as the huge cost of prisons, justifies the statement that prisons are not part of the solution, they are part of the problem.

May I end by quoting from three resolutions of United Nations Congresses on the Prevention of Crime and the Treatment of Offenders. In 1980 Resolution 8 of the Sixth Congress (International Review of Criminal Policy 1983, no. 36, p. 17-18; General Assembly Resolution 35/171) recommended member states to

consider means for the effective involvement of the various components of the criminal justice system and the community in the continuing process of developing alternatives to imprisonment.

Resolution 16 of the Seventh Congress, in 1985 (endorsed by General Assembly Resolution 40/32), stated that

Imprisonment should be imposed only as a sanction of last resort, taking into account the nature and gravity of the offence … . In principle, imprisonment should not be imposed upon petty offenders.

The use of alternatives to imprisonment must be co-ordinated with the competent social services in facilitating, if needed, the social resettlement of the offender.

Finally, also at the Seventh Congress, a Declaration of basic principles of justice for victims of crime and abuse of power was agreed, and subsequently adopted by the General Assembly (Resolution 40/34). It stated that

Victims should be treated with compassion and respect for their dignity. …

Judicial and administrative mechanisms should … enable victims to obtain redress through formal or informal procedures.

Informal dispute resolution mechanisms, including mediation, arbitration, and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims.

I hope that these resolutions will soon be implemented in Bosnia and Hercegovina, England and Wales, and throughout the world.

REFERENCES

Bazemore, Gordon, and Kay Pranis (1997) `Hazards along the way: practitioners should stay true to the principles behind restorative justice.’ Corrections Today, December, 84, 86, 88, 89, 128.

Christie, N (1977) `Conflicts as property.’ British Journal of Criminology,17(1), 1-15.

Maxwell, Gabrielle, and Allison Morris (1996) `Research on family group conferences with young offenders in New Zealand.’ In: J Hudson, A Morris, G Maxwell and B Galaway, eds. (1996) Family group conferences: perspectives on policy and practice. Monsey, NY: Willow Tree Press.

Mediation UK (n.d.) Victim/offender mediation: guidelines for starting a service. Mediation UK, Alexander House, Telephone Avenue, Bristol BS1 4BS, England.

Quill, Deirdre, and Jean Wynne (1993) Victim and offender mediation handbook. (Available from Mediation UK, as above.)

Sherman, Lawrence W, and Heather Strang (1997) RISE working papers 1 – 4: … research in progress on the ReIntegrative Shaming Experiments (RISE) for restorative community policing. Canberra: Research School of Social Studies, Australian National University.

Umbreit, Mark (1993) `Crime victims and offenders in mediation: an emerging area of social work practice.’ Social Work, 38 (1), 69-73.

Umbreit, Mark, and Ann W Roberts (1966) Mediation of criminal conflict in England: an assessment of services in Coventry and Leeds. Centre for Restorative Justice and Mediation, School of Social Work, University of Minnesota, 386 McNeal Hall, 1985 Buford Avenue, St Paul MN 55108, USA

Wright, Martin (1996) Justice for victims and offenders: a restorative response to crime. 2nd ed. Winchester: Waterside Press.

Zehr, H (1990) Changing lenses: a new focus for crime and justice. Scottdale, PA: Herald Press; London: Metanoia.

I am grateful to Ann Warner Roberts for comments on an earlier draft of this paper. c:rjsara March 1998

Table 1

Restorative justice: principles

Reparation

(1) Criminal acts often harm individual victims

Primary response: repair harm

(2) Offenders, if known, required to make amends

Mediation

(3) Victims and offenders offered opportunity to communicate feelings, ask and answer questions

Process must be voluntary

Community

(4) Helps victim

Enables offender to make reparation

Crime prevention

(5) Feedback of information to departments responsible for crime prevention

Table 2

Victim/offender mediation: the process

Preparation

Do they understand the process?

Will they use it constructively and safely?

Who should be present?

Conference

Neutral place

Mediators (two) arrive half an hour early, agree about aims, decide seating, etc.

Participants are asked to agree to ground rules

Victim(s) and offender(s) invited to speak, ask and answer questions

For some, that is all they want; other victims ask for an apology or reparation

If the crime arose from a dispute, they may be able to agree to resolve it

Follow-up

Record-keeping, monitoring

Has reparation been completed?

Victim’s satisfaction

Offender’s development

Table 3

Organization of victim/offender mediation: options

Official

Organized and managed by inter-agency group (social welfare, police, prosecution, education, health (drugs), etc.)

NGO

Organized and managed by NGO

Standards agreed between NGO and official agencies

NGO has management committee with representatives of official agencies

Both official and NGO

Full-time co-ordinator (trained in mediation)

Full-time paid mediators

and/or Part-time paid mediators

and/or Mediators recruited from the community, paid for each session

and/or Trained volunteer mediators (expenses paid)

Note: All mediators need support, supervision and continuing in-service training

Funding:

National government

and/or Local government (canton)

and/or Statutory agencies (social welfare, police, etc.)

and/or Charitable trusts

and/or Possibly international funding to start

Table 4

Retributive justice

Wrong as a violation of rules

Wrongs create guilt

Crime seen as categorically different from other harms

Debt paid by taking punishment

Focus on past

Imposition of pain to punish and deter

Harm by offender balanced by harm to offender

Offender denounced

Justice serves to divide

Victims’ needs and rights ignored

Ignores social, economic and moral context of behaviour

Process alienates

State monopoly on response to wrongdoing

Community on sideline, represented abstractly by state

Restorative justice

Wrong as violation of people, relationships

Wrongs create liabilities and obligations

Crime recognized as related to other harms and conflicts

Debt paid by making right

Focus on future

Restitution as a means of restoring both parties

Harm by offender balanced by making right

Harmful act denounced

Justice aims at bringing together

Victims’ needs and rights central

Total context relevant

Process aims at reconciliation

Victim, offender and community roles acknowledged

Community as facilitator in restorative process

(Extracted from Zehr 1990)

APPENDIX A

How to make sure that mediation (conference) is voluntary

Offender willing to meet, victim not willing

– Offender can make reparation through community service, so victim and offender both know that offender is no worse off because of victim’s refusal to take part

– Victim’s family and/or supporters can take part in conference on victim’s behalf

– Indirect mediation (`shuttle diplomacy’): mediators as go-betweens

Victim willing to meet, offender not willing

– Offender can make reparation (to victim or through community service) without meeting victim

– Offender’s family or supporters can take part on offender’s behalf

– Indirect mediation (as above)

Victim willing to meet, offender not known (or not willing)

– Victim/offender groups: victims meet offenders who have committed similar offences in structured discussion. (This should be available in a comprehensive system of restorative justice, but is little used as yet.)

Note:Mediation should be voluntary, reparation may be enforced

APPENDIX B

How restorative justice can be used for less serious and more serious cases

(1) Less serious offence

police

accused admits act or `does not deny’ accused denies guilt

court

guilty                                                                                                                    not guilty

conference                                                                     conference

action plan; apology,                                                 conference does not action plan

reparation, etc.                                                            reach agreement

(no further court                                    court imposes                        court accepts plan

involvement)                                           sentence* (reparative      or adds to it

                                                                      if possible)                               or reduces it

mediation service                                                                                        mediation service

monitors plan                                                                                                 monitors plan

(2) More serious offence

police

prosecutor

accused does not deny                                                                            accused denies guilt

not in public interest to                                court                                court

prosecute (e.g. conference

or reparation already)                                  confirms guilt                guilty       not guilty

                                                                                                   conference

                                                                               action plan                       no agreement

                                                                             court accepts plan          court imposes

                                                                             or adds to it                       sentence* (reparative

                                                                              or reduces it                      if possible)

* victim or offender can request mediation after sentence (sentence is not affected)

6673 words c:RJsara

Victim/offender mediation in the United Kingdom: legal background and practice

Paper to Seminar on Mediation between juvenile offenders and their victims, organized by the Council of Europe and the Ministry of Justice (Institute of Justice) of Poland, Popowo, near Warsaw, 22-24 October 1997.

i Published in Juvenile offender-victim mediation, ed. by Beata Czarnecka-Dzialuk and Dobrochna Wójcik. Warsaw: Oficyna Naukowa, 1999.

Introduction

The first formal programme for victim/offender mediation, established in Canada in 1974, was called a Victim/Offender Reconciliation Programme (VORP). From the start, victims were invited to be involved actively (but of course only if they wanted to). The belief was that victims would not only benefit materially, for example by receiving compensation from the offender, but would feel more satisfied because they had been able to tell the offender how they felt, ask questions, and possibly make a small contribution to persuading the offender to change his attitude.

In the two decades since then, problems have been raised and answered, some practices have been criticized, new methods developed, and research conducted; out of all this a theory is emerging, which has been given many names, but is perhaps most commonly called restorative justice. This maintains among other things that assisting the victim’s recovery should be a primary aim of the system; that offenders should be held accountable for the harm they have caused to the victim, but in a constructive way; that it is appropriate for victims to be involved in agreeing an action plan for the offender because it is reparation (but victims should not be involved in punishmentii ); the commun­ity should take part in this process and contribute to the necessary resources; and there should be feedback from the process to the agencies responsible for crime prevention. Unlike the conventional justice system, restorative justice regards the process as important in itself, and measures its success by the effect on the victim as well as on the offender; research has almost always found that a high percentage of victims and offenders felt that the process had been helpful and fair. Lower reconviction rates are not a primary aim; victim/offender mediation is regarded as successful if they remain the same, provided that victims feel satisfied and offenders consider that they have been fairly dealt with. There are other secondary aims such as saving the time of prosecutors and courts (and hence saving money), and dealing with cases more quickly.

An example of mediation in practice comes from Sheffield.

`Paul’ started experimenting with drugs when he was fifteen, and progressed to cannabis, LSD, Ecstasy, heroin and cocaine. He served several prison sentences for burglaries, and went through detoxification, rehabilitation programmes and methadone prescriptions. He suffered powerful withdrawal symptoms. The victim of one house burglary asked the victim/offender mediation service if he could meet Paul. Through this Paul learnt about the upset he had caused the victim and his family, and began to think about the effects of his actions on other people as well as himself. One of the mediators wrote afterwards: `It was quite a solemn moment when Robert and Paul sat down around the table. Robert spoke first and as he was telling Paul about the effects of the burglary on himself and his family, the atmosphere in the room seemed to change. I felt touched to feel a relationship being formed between these two people. Usually I am cynical but something really did happen on that day. Robert expressed the hope that Paul would get off drugs and stop burgling. Paul promised Robert in their agreement that he would attend a rehabilitation unit for his heroin addiction. Afterwards he wrote to say how glad he was that he had taken part in mediation.’

(Shortened from Sheffield, 1997)

The mediation service comments that seven years of drugs and crime cannot be undone by one meeting, but it gave Paul his first opportunity to accept responsibility for the damage he had done to a victim. The victim also felt that he had done what he could to motivate Paul.

This paper will begin by looking at the legislation relevant to restorative justice and victim/offender mediation in Britain, and the criminal procedure. Then it will consider aspects of current practice in different mediation services; and finally some points for consideration will be presented.

Legal background

Laws on victim/offender mediation in Britain are like snakes in Ireland: they do not exist. There are however some measures which are restorative for victims or offenders, but not both. The first to be introduced was compensation for victims of violent crimes (introduced without legislation in 1964, but not made statutory until the Criminal Injuries Compensation Act 1995, when the government of the day wished to change (and reduce) the compensation. Compensation orders (requiring offenders to pay to victims) were introduced in the Criminal Justice Act 1972; this Act also created community service orders, although it was not clear to what extent they were intended as reparation to the community, rehabilitation, punishment, or simply a way of persuading courts to pass fewer prison sentences. Another service that is restorative for victims is the independent organization Victim Support, which arranges for volunteers to contact victims of crime and campaigns for reforms of law and procedure (but not sentencing) on their behalf; this receives some government funding, but there is no legislation about it.

There is some restorative legislation for offenders, also, especially for juveniles: for example, the Children and Young Persons Act 1933 states that courts shall have regard to the welfare of the child or young person; and much of the work of the probation service is directed to helping offenders. In addition there are numerous independent organizations, large and small, to help offenders in the community, in prison, and after prison.

No British laws, however, are fully restorative, in the sense of promoting the well-being of both victims and offenders and encouraging them to discuss reparation together, in the manner of the original VORP.

Criminal procedure: the framework within which victim/offender mediation is practised

The English youth justice system

Children’s legislation in England and Wales is based on the principle that the welfare of the child is paramount; criminal legislation, however, has become more punitive in recent years. The new government, elected on 1 May 1997, is proposing new laws, which will be indicated below in square brackets [ ]. The intention is apparently to be firm but not necessarily harsh; for example young offenders will no longer be cautioned several times, but when they receive a Final Warning it will usually be accompanied by rehabilitative measures and reparation to victims.

The age of criminal responsibility in England is low, 10 years (in Scotland and Northern Ireland it is 8); children aged ten and under 14 are presumed to be doli incapax (incapable of evil), but if the prosecution can show that the child knew hisiii action to be seriously wrong, he can be convicted of a criminal offence. [The government proposes to abolish the presumption of doli incapax, that is, to presume that children aged 10-13 do know what is seriously wrong.]

The first decision when a child (aged 10-13) or young person (14-17) is suspected of committing a crime rests with the police; in many areas they are advised by a multi-agency group with a name such as `juvenile liaison bureau’. After interviewing the suspect, they may give the offender a formal caution, provided the offence is not too serious and he admits it. About 80% of offenders do not offend again after a caution. At present a young person can be cautioned more than once; but the use of cautions varies widely in different areas, and the previous government had, in response to political and media pressures, issued a circular recommending that an individual should be cautioned only once. [The present government proposes that the caution be re-named a `Police Reprimand’. A young person will only be reprimanded once; after that he will receive a Final Warning or be prosecuted. A second Final Warning could be issued if two or more years have elapsed since the first one. A Final Warning will normally be accompanied by other measures such as counselling, supervised activities, work to improve school performance, help for parents, and reparation to victims. Mediation UK proposes that victims and offenders could be involved, through mediation or conferencing, in discussing what these measures should be.]

If the offence is too serious for a caution the police ask the Crown Prosecution Service (CPS) to prosecute. Under its Code of Practice the CPS may decide to discontinue the case if there is not enough evidence or if prosecution would not be `in the public interest’, for example if the offence is very minor, or the offender has made reparation. There are however no arrangements to encourage reparation.

If the young offender is prosecuted and convicted in the Youth Court, the court can pass a sentence (normally after obtaining a Pre-Sentence Report), such as:

– a fine

– a compensation order

(the court must order fines and compensation to be paid by parents of under-16s unless this would be unreasonable in the circumstances, and may order this for 16- and 17-year olds)

– a supervision order (which may include conditions)

– secure training orders (age 12 to 14; not yet in force)

– detention in a young offender institution (minimum age 15)

For those aged 16 and 17, sentences may include:

– a probation order

– a community service order of 40 to 240 hours (for imprisonable offences only)

– a combination order (for those who need the help of a probation order and the punishment of a community service order, these can be combined. It is a sign of current thinking that community service orders are regarded as `punishment’, rather than as a way of making reparation to the community)

– a parental bind-over (the parents are `bound over’, i.e. required, to control their children and make sure that they comply with court orders; if they do not, they may have to pay up to £1 000)

– a curfew order

[The government proposes several new measures:

– a Reparation Order, involving for example an apology or community service

– a Parenting Order, offering parents help in learning how to control their children (with a possible fine of up to £1 000 for those who fail to attend; it is not yet clear who will provide this service)

– an Action Plan Order, which may combine for example making reparation, complying with educational arrangements, specified activities, and/or staying away from certain places.

– a Supervision Order, with more options than the existing one, such as reparation or community service.

Finally, the government proposes two measures for under 10s:

– a Child Safety Order, requiring children for example to be at home at specified times, attend school, and stay away from certain places.

– a Local Child Curfew, preventing children under 10 from being in a public place between certain times, unless accompanied by a responsible adult.]

Details of these proposals have not yet been made known, and are probably not yet complete at the time of writing. What is lacking in the proposals produced in September 1997, Tackling youth crime, is any indication of enlisting the voluntary co-operation of offenders and their parents before orders are imposed by courts and plans drawn up by social workers (in contrast to the spirit of the Scottish system described below). More than once this consultation document refers to seeking the views of victims about reparation (Home Office 1997). People with knowledge of mediation hope that opportunities will be provided for victims to meet offenders (or communicate indirectly), not only as a way of agreeing on the reparation, action plan or other measure, but also because of the value of the process of communication itself.

Scotland

In Scotland, which has a separate legal system, the procedure for juveniles under 16 is based on the Kilbrandon Report of 1964, which stressed that wherever possible at least one parent should attend the proceedings, to try to enlist their co-operation `in an atmosphere of full, free and unhurried discussion’, with the aim of adopting appropriate orders informally and by agreement in many cases. The case is referred firstly to an official known as a Reporter, who often takes no official action, but may give the parents advice or a warning, and may emphasize the possibility of putting right what the child has done, especially with regard to vandalism and thefts.

Secondly, the Reporter may refer cases to the Social Work department, to enable voluntary arrangements to be made. Thirdly, if he or she feels that compulsory measures are necessary, undisputed cases (about 95% of the total) may be referred to the Children’s Hearing, which the parents must attend. This is a Panel which tries to involve the child and parent(s) in a fair and frank discussion. In some cases the Hearing is probably the first occasion on which parents and children sit down and talk through their situation. The panel then decides on supervision (85% of cases) or `compulsory measures of care’, which may include being sent to an institution (summarized from Wright 1996: 39-40).

If the offence is very serious, or is denied, the case goes to the Sheriff Court; if proved, it may go to a Hearing, as above, or the sheriff may impose a sentence.

Practice

It is difficult to present a clear picture of current practice in Britain, because the services are so different. Some use victim/offender mediation, others conferencing, or both. Some are for juveniles, others for adults, or both. Some are managed by the probation service, others by the police, or independently. They have been described by Shadbolt (1994) and more recently but in less detail by Marshall (1996). Instead, I will select particular features of the various services, which may be relevant in other countries. These include the stage of the criminal justice system at which they operate, the mediation methods used, and the management structure. Finally I will put forward some points for consideration in the design of a victim/offender mediation service.

Mediation and criminal justice

The county of Northamptonshire provides examples of several relevant points. The Northamptonshire Diversion Unit operates at the beginning of the process: when the police have decided to caution the offender. The earlier in the criminal justice process a case is diverted to mediation, the more work it saves for prosecutors and courts; but this means that there is a ceiling on the seriousness of the cases diverted. This ceiling can however be quite high; most cases involve offences such as theft and criminal damage, but there are also some assaults and threats to kill. (In Austria offences by juveniles for which the maximum punishment is five years’ imprisonment can be referred for mediation, and in New Zealand, because the process is supervised by judges, all juvenile cases except homicide can be referred.)

Many mediation services have to work hard to maintain a flow of cases, but in Northamptonshire there is a Juvenile Liaison Bureau, supported by the county’s chief officers of Police, Education, Social Services, Youth Service and Probation. All cases are considered by a panel of the Bureau, which meets once or twice a week, with the result that substantial numbers are referred to the Diversion Unit: 1 226 in 1994/95. Several of the staff are seconded from these agencies for two or three years.

There is a question mark over the use of the word `diversion’ in this context, because it implies that the aim is to benefit the offender (by keeping him out of the criminal justice system) or the system (by reducing its workload) rather than the victim. One reparation service invites young offenders aged 10 to 16 to make reparation, as a means of diverting them out of the system. According to its guidelines it asks the offender and the social worker whether they think the proposed reparation is fair; in practice, however, victims are consulted, about 8 out of 10 accept reparation, and 6 out of 8 choose to meet the offender (Wiltshire 1997 and personal communication). Similarly, a service limited to juvenile offenders is not fully restorative, because it offers no benefit to the victims of adult offenders; but a start has to be made somewhere, and there are clearly advantages in working with juvenile offenders at first.

Thames Valley Police have developed four levels of cautioning: an Instant Caution, for minor offences; a Restorative Caution, after consulting the victim; a Restorative Conference, when the victim wishes, before the caution, to have a face-to-face meeting with the offender and the latter agrees; and a Community Conference, where victims can make a positive contribution to the outcome. In the large new town of Milton Keynes they have also developed the Retail Theft Initiative. Here the `victim’ is usually a large store, but the offender is invited to meet the human face of a manager, who explains the effect of shoplifting on management, employees, customers and suppliers: it is not a victimless crime. He or she will also emphasize the effects on the price of goods, the employment of local possibility, and the possibility of the shop closing. The meeting is voluntary, since it takes place after the decision to caution, but it is pointed out to offenders that taking part will help to reduce the risk that they will re-offend, and tackle some of the issues which led them to steal, such as pressure from peers or lack of recreational facilities. In this project the aim is not victims’ satisfaction but to reduce re-offending; this has fallen from 35% to 3% for first offenders, although offenders with criminal records continue to re-offend at a rate of more than 70% (McCulloch n.d.).

The next stage at which cases can be referred for mediation, is prosecution. For this our example comes from Scotland, because prosecutors in England have not yet made much use of it (in Northamptonshire, 95% of cases come from the police, 5% from prosecutors). Mediation services have been operated in different parts of Scotland by SACRO (the Scottish Association for the Care and Resettlement of Offenders), currently in Motherwell, near Glasgow, and Aberdeen, in the North West. Service to victims as well as to offen­ders is emphasised. Volunteer mediators are used, so as to involve the community; their mediation skills may also be useful to the community in other ways.

The model used is deferred prosecution. First a decision to prosecute must have been made. This excludes minor cases, and those where the evidence is not strong enough to secure a conviction. The cases referred include mainly theft, criminal damage, fraud, breach of the peace, and assault to injury (a Scottish term, roughly equivalent to Actual Bodily Harm in England). The minimum age for offenders is 16. Victims are approached first to ensure that there is no pressure on them from the accused to participate. The victim is under no obligation to meet the accused; agreements are often reached by shuttle negotiation, although this takes more mediators’ time, and research elsewhere suggests that face-to-face mediation leaves both parties more satisfied. A procedure has been agreed with the Procurators Fiscal (prosecutors):

Procurator Fiscal refers case to Mediation Service

Fiscal writes introductory letter to victim, outlining mediation and introducing the Service

Service writes its own letter to victim

Victim is visited, with no obligation to participate. The Service is described, mediation offered to victim.

If `No’, case is returned to Fiscal

If `Yes’, process is discussed thoroughly with victim; victim is re-assured that court can still impose sanction until an agreement is completed.

Fiscal is informed of victim’s decision.

The same procedure is followed with the accused: a letter from the Fiscal, a letter from the Service. If the accused accepts responsibility for the incident, is willing to settle through mediation, agrees to make reparation, and keeps the agreement so that the victim is satisfied, the settlement is reported to the Fiscal. Usually no further action is taken, although the Fiscal retains discretion to prosecute. Further details are given by Hastie (1996).

Examples of reparation agreements include:

Teaching children with learning difficulties to swim

Writing letters for senior citizens in homes, with physical handicaps

Baking for charities

Cleaning the banks of the river

Gardening for old age pensioners

Care and support for people with physical and mental disabilities

Help with nursery care in community centre

Taking part in workshops on alcohol-related offending.

This list is not complete, and it probably contains ideas which social workers on their own would not have thought of. Another way of making amends, which is very popular with victims, is improved behaviour by the accused; it may include seeking treatment for alcohol or drug abuse. Sometimes an agreement is drawn up in which the offender agrees not to harass the victim (and in some cases the victim also undertakes to stop behaviour which annoys the offender). The British government is at present proposing to make Orders for some of these things; those with experience of mediation believe that it is much better to encourage people to agree to do them, and that compulsion should be the last resort. In Northamptonshire, for example, only 3% of compensation agreed by victims and offenders in 1991 was written off; when compensation is ordered by the court the proportion is much higher.

The next point at which mediation can be considered is when the offender has pleaded Guilty and the court has remanded the case for pre-sentence reports. The procedure is similar to that described above, except that at this stage the case is in the hands of the probation service, not the prosecutor. Normally at most 28 days are allowed for pre-sentence reports, so it is difficult to arrange mediation unless the offender states before the trial that he will plead guilty, or the trial can be deferred. Another possibility is that the court can defer sentence, with the expectation that if reparation is completed the sentence will be a nominal one; this is a good incentive to complete the reparation, but is unpopular with courts because it requires an extra hearing. (Another possibility would be the American practice of `adjournment in contemplation of dismissal’.)

Finally, mediation can take place after sentence; and here it is being considered in conjunction with an interesting new development introduced in the Victim’s charter (1990; 2nd ed. 1996). The Charter (which does not have the force of law) stated that before a life-sentence prisoner was released, the probation service would, wherever possible, `get in touch with the victim, or victim’s family, to see if they do have anxieties about the offender’s release.’ If they do, restrictions may be imposed on where the prisoner works, lives or goes after release; but the date of release is not affected. Probation officers, accustomed to work with offenders, found this difficult. In West Yorkshire, however, a Mediation and Reparation Service had existed since 1985, and mediators have experience of working with both victims and offenders. They therefore undertake the work on behalf of the Probation Service. Although they do not suggest mediation, spontaneous requests for communication with the offender are received in a number of cases; victims request information, which helps them to come to terms with the crime (Johnston 1994).

Methods of victim/offender communication

There are four main methods of victim/offender communication: indirect mediation, direct mediation, conferencing, and groups. Many victims prefer indirect mediation: not to meet the offender but to communicate through a mediator acting as go-between, and it may be that mediation workers are not fully explaining the possible benefits, although research suggests that fewer victims are satisfied with this process. But it is a firm principle that mediators should respect victims’ wishes, and not tell them what’s good for them; so is the victim’s safety (and feeling of safety), which is stressed by several services. Another factor in to-day’s world is the use of drugs: there could be a risk that an offender who returns to the use of drugs might use knowledge about the victim gained during mediation (Wynne 1997).

Direct mediation brings victim and offender together in the presence of one or preferably two mediators. They should be specifically trained as mediators, and not rely on training in different disciplines such as psychology or social work; they should certainly not be involved in the same case in two different capacities, for example as probation officer and mediator (ISSP 1997: 19). Some are members of staff, but several mediation services (such as West Yorkshire and Aberdeen) prefer to recruit and train lay mediators who may have no previous qualifications but know the local community. In some services they are paid expenses only; in others they are paid a fee for each session. In at least one service, training local people in mediation skills is a primary aim (Maidstone 1997).

Conferencing is similar to direct mediation, except that the victim and offender are encouraged to bring members of their families, including extended families (aunts, grandparents, brothers, sisters) and other people who will support them. The project currently being established in Lambeth and Hackney, in London, will use conferencing or mediation, as appropriate. It has been found, especial­ly in Australia, that people from both `sides’ do not line up in an adversarial way; there is value in the offender’s acknowledgement of what he did, and the victim’s expression of his or her feelings. For some, this is enough; others can work together to find an action plan which will be satisfactory to the victim and enable the offender to work towards reintegration into the community.

The idea was originally called family group conferencing (FGC); it was deve­loped in New Zealand, drawing on Maori traditions. It was seen primarily as a welfare model, enabling the young person’s family to resolve their own prob­lems, rather than have solutions imposed on them by social workers; part of the process includes private time with no social worker present. When the young person has committed an offence against a victim, there has been a ten­den­cy to retain the welfare approach, leaving the victim on the margin of the process. Some services using FGCs invite victims or their representatives to state the impact of the crime, but not to join the offender and his family in for­mulating an action plan; this leaves out of consideration the possible benefit to the victim, and also the victim’s potential contribution to a good action plan. one of these services is being independently evaluated, but its criteria for success make no mention of the effect of the process on the victim (ISSP 1997: 33 and personal communication). Victim Support in that county is involved, however, and the Youth Service intends to develop a county-wide policy in the current year to ensure that victim care is an integral part of work with young offenders and to monitor the role of victims within the FGC.

In the New Zealand model the offender and his family propose an action plan, usually including reparation, and the victim has the right to refuse to accept it. This could be a difficult decision for the victim, because it would put on him or her the responsibility for the rejection of the plan; but it could be presented by the police officer. (In fact, in the small number of cases undertaken so far in Kent, some offenders have offered more than the victims wanted.) It seems preferable that all should take part in formulating the plan, and should share responsibility if they are unable to agree. If the family has other problems which do not concern the victim, a separate FGC could be held. To distinguish this welfare process from the method used when a victim is involved, it has been suggested that the latter should have a different name, such as victim/ offender conferencing (V/OC).

The last method can be (but seldom is) used in the large number of cases when no offender is convicted, and also when offenders wish to make amends but their victims do not wish to have communication with them. A group is formed of victims of a particular type of offence and offenders who have committed a similar offence. They can complete attitude questionnaires, take part in a structured discussion, and sometimes use role-plays in which the offender expresses the victim’s feelings, and vice versa. This method was used for a time in Rochester Young Offenders Institution, and found that victims became less angry and anxious, and were able to challenge offenders’ justifications for committing burglary (Launay, 1985, 1987; Launay and Murray 1989). There are currently proposals to include this method in the victim/offender mediation service being established in Waltham Forest, east London.

A five-year demonstration project is being planned in five prisons; it focuses on financially motivated criminals, including burglars, armed robbers, thieves, and drug dealers. It is not part of a mediation service, but will arrange victim/offender reconciliation where possible and this will be evaluated by comparison with matched controls. Otherwise the aim is not so much to assist individuals as to establish systems for doing so: rehabilitation programmes for these types of offender; improved training for bank staff in handling raids; and greater knowledge of how support can best be offered to victims after a raid. The project also hopes to show large cost savings through reduced re-offending and hence reduced imprisonment (Long Lartin 1997 and personal communi­cation). The initiative for the project came from a female employee of a bank who has experienced three robberies; she found a meeting with imprisoned robbers helpful and has been seconded by her employers as Victim Liaison Officer to develop it. This appears to be the only programme in Britain with built-in feedback, although it concentrates on preventing re-offending rather than on primary crime prevention. It also aims to improve the quality of life for the families of prisoners.

Points for consideration

The first essential as always is to be clear about the aim. Without a clear aim it will not be possible to train mediators well, nor to evaluate the programme. Good training, support, supervision and refresher courses for mediators are of course essential. The focus of restorative justice is on the victim and the community, as well as the offender. This means that the criterion for success is whether the victim has been helped; and it is therefore important that the process, as well as the outcome, is helpful. As regards the offender, the essential thing is that he recognizes the harmful effects of what he has done, and takes action to show that he regrets it and to make some form of reparation. He should be given the opportunity to do this voluntarily; insofar as requirements are placed upon him, these should be such as to encourage him to respect other members of the community. The community in turn should provide the resources to enable him to do so.

Some figures from recent research in two well-established victim/offender mediation services in England, in Leeds and Coventry, show how far the aims have been achieved (Umbreit and Roberts 1996). Of victims, 84% were satis­fied with the outcome of direct mediation, and 100% of offenders (admittedly on small samples; the figures for indirect mediation were slightly lower). Of victims who took part in mediation, 79% said they were satisfied with the just­ice system, compared with 55% in cases which did not go to mediation. After mediation, only 16% of victims expressed fear of re-victimization by the same offender; in no-mediation cases, the figure was twice as high. Not sur­pris­ingly, the great majority of victims taking part in mediation attached importance to the offender telling the victim what happened (93%), the victim telling the offender the effects (90%), receiving answers to questions (80%), receiving an apology (73%); only 65% stressed the importance of negotiating restitution. The same authors found broadly similar results in the USA and Canada.

After mediated cases 89% of offenders thought the justice system was fair, but only 56% in non-mediated cases. As for reconvictions, this study did not have a control group for comparison, but of the 54 offenders who took part in mediation in 1989 (excluding an additional 15 who were given prison sentences of 1 year or more), 57.4% had no further convictions after 2 years. Of the 29 who were reconvicted, 68% committed an offence of the same or less gravity.

In preparing this paper I have asked two groups for their ideas. Firstly, I asked the practitioners who helped me by providing information about their services to suggest one or more recommendations that they would make to people in a country where victim/offender mediation is being introduced for the first time. The following are the main points which they considered important. They may be divided into: the place of victim/offender mediation in the criminal justice system, its place in the community, and the mediation process.

Victim/offender mediation in the criminal justice system

The mediation service should represent the needs of both victims and offenders; it should be independent, not part of any one existing organization (two services made this point). People need to re-orient their thinking so that the starting point of the system is to resolve the offence from the victim’s point of view.

Several stressed the need for careful planning, to gain acceptance for the programme by all the criminal justice agencies, and to make sure that all their concerns are considered. It is especially important to involve the police and victims’ organizations, and to reassure them that there are adequate safeguards for victims. It needs to be presented to these agencies in a professional way. Police, courts, probation, social services, Victim Support, offender welfare organizations, need to work together to explore issues relevant to each group and to be clear what mediation can and cannot do. They should co-operate in facilitating the process, for example by providing information, names, addresses and so on to the mediation service.

Victim/offender mediation in the community

Local people should be involved as much as possible; the process should not be left only to criminal justice officials. The profile has to be raised by politicians; the Ministry of Justice at the highest level should issue directives. Attempts should be made locally and nationally to raise public awareness, so that mediation is understood and accepted as a reasonable way to resolve outstanding issues between victims and offenders. There is a need to foster a supportive learning environment that encourages problem-solving approaches and innovation.

The mediation process

No one should be coerced into mediation: it must remain a voluntary process. It should not be left to operate alone: other elements that reinforce offending behaviour should be addressed. In one project, for example, the main focus is on young offenders who steal cars, but victim/offender mediation is an important part of the programme.

Mediation requires a thorough and honest assessment of the monetary, emotion­al and social harm caused by the offence. It should build on a culture of mutual exchange and citizenship in which personal responsibility is encour­aged and the family is the normal group for the resolution of problems. Ideas of fairness, putting right of wrongs, repairing of damage are all basic ideas used within fami­lies as part of child-rearing, and is likely to be more effective as a means of resolving offences than the conventional criminal justice process.

Secondly, I put a similar question to an international study group on restorative justice. They were critical of the conventional system, which they saw as neg­lect­ing victims and even oppressing certain groups. Restorative justice, they said, individualizes the conflict, gives victims a voice, and enables victims and offenders to find their own solutions. It also frees prosecutors to devote more time to serious cases. The conventional system makes the offender defend him­self, which encourages him to deny responsibility, not accept it. Mediation makes the offender accept responsibility: he cannot `neutralize’ or deny the harm caused by his actions. It also gives the community a role in the process.

I will conclude by offering three points on the basis of my own experience. The first is the importance of high standards: deciding what they should be, and ensuring that mediation services uphold them. At the national level a group called Standards in Restorative Justiceiv has been formed in Britain to try to do so. At the local level it is useful to have a small group for policy and practice; its role is to consider new questions as they arise, and to agree how similar situations should be handled in future, in the light of the agreed principles of restorative justice. Perhaps international discussion of this question will soon be desirable.

The second is to stress that the process should aim to benefit the victim as well as the offender. The procedure should be designed so that there is no pressure on the victim to take part; if he or she does not want to, there should be other ways in which the offender can show his active regret, for example through community service. The word `process’ is important. There are three ways in which mediation can have a successful outcome: the communication between victim and offender can be valuable for its own sake; they may reach voluntary agreement about reparation; or their agreement may be made compulsory through an order of the court. The latter should not be presumed to be the best.

Thirdly, the relationship of victim/offender mediation to the conventional system needs to be watched constantly. Those accustomed to the old way of thinking may, perhaps unconsciously, impose their values on the new ones. One example is the way in which attempts have been made in England to regard community service orders as a punishment, rather than as a way of making amends. Another is the way in which the pressure for speedy justice limits the time available for mediation and reparation. Statistics should distinguish between courts which are slow, and those which deliberately delay cases to allow time for reparation. But there is a positive side to this: mediation and reparation can make life easier for criminal justice agencies, and they should be made aware of this. If a prosecutor defers prosecution to allow for mediation, he saves the work of presenting the case in court, and the public can see that the offender has not merely been `let off’. Court time is also saved, of course. For the probation and prison services this is a new way to help the offender to realize that he has not merely broken a law but has harmed someone. In some cases an addition to the prison population will be avoided. These are not the primary reasons for introducing victim/offender mediation, but they help to secure its acceptance.

The principal reason remains to help the victim to recover from the crime and to hold the offender accountable while enabling him to earn reintegration into the community.

NOTES

REFERENCES

Hastie, Keith (1996) SACRO Mediation and Reparation Project. S M R P, 18 Little Belmont Street, Aberdeen AB 10 1 JG.

Home Office (1997) Tackling youth crime: a consultation paper. London: Home Office.

Intensive Support and Supervision Programme (Persistent Young Offenders) (1997) Manual of guidance. Social Services Department, Kent County Council, Springfield, Maidstone ME 14 2 LW.

Johnston, Peter (1994) The Victim’s Charter (1990) and the release of life sentence prisoners: implications for probation service practice, values and

management. West Yorkshire Probation Service, The Basement, Oxford Place -Centre, Leeds LS 1 3 AX.

Launay, Gilles (1985) “Bringing victims and offenders together: a comparison of two models.” Howard Journal,24 (3), pp. 200-212.

Launay, Gilles (1987) `Victim/offender conciliation.’ In: Barry J McGurk, David M Thornton and Mark Williams, eds. Applying psychology to imprisonment: theory and practice. London: HMSO.

Launay, Gilles, and Peter Murray (1989). “Victim/offender groups.” In: Wright, M and B Galaway, ed. (1989) Mediation and criminal justice: victims, offenders and community. London: Sage.

Long Lartin Research Trust (1997) Financial offenders and victim support research programme … project proposal. Psychology Unit, HM Prison Long Lartin, South Littleton, Evesham, Wiltshire WR 11 5 TZ.

McCulloch, Helen (n.d.) Shop theft: improving the police response. (Crime De­tec­tion and Prevention Paper 76.) London: Home Office Police Research Group.

Maidstone Mediation Scheme (1997) Annual report 1977. Community Support Centre, Marsham Street, Maidstone, Kent ME 14 1 HH.

Marshall, Tony (1996) The evolution of restorative justice in Britain. PC-MP (96) 3. Strasbourg: Council of Europe.

Shadbolt, Maureen P (1994) An investigation of victim/offender mediation and reparation schemes in the United Kingdom. Winston Churchill Memorial Trust, PO Box 10-345, Wellington, NZ.

Sheffield Victim/Offender Mediation Project (1997) Annual report 1996-97. SV/OMP, 342 Glossop Road, Sheffield S 10 2 HW.

Umbreit, Mark, and Ann W Roberts (1966) Mediation of criminal conflict in England: an assessment of services in Coventry and Leeds. Centre for Restorative Justice and Mediation, School of Social Work, University of Minnesota, 386 McNeal Hall, 1985 Buford Avenue, St Paul MN 55108, USA

Wiltshire County Council. Social Services Department (1997) Reparation – home visit: briefing and guidelines. (YJ3) Juvenile Diversion Scheme, 21 Green Road, Upper Stratton, Swindon SN2 6JA.

Wright, Martin (1996) Justice for victims and offenders: a restorative response to crime. 2nd ed. Winchester: Waterside Press.

Wynne, Jean (1997) `Victim/offender mediation: direct or indirect mediation?’ In: Annual report 1996-7. West Yorkshire Probation Service, Victim/Offender Unit, The Basement, Oxford Place Centre, Leeds LS 1 3 AX.

Author’s address: 19 Hillside Road, London S W 2 3 HL, England.

c:RJWarsaw 16 October 1997

VICTIM/OFFENDER MEDIATION IN THE UNITED KINGDOM:

LEGAL BACKGROUND AND PRACTICE

Dr Martin Wright

Paper to Seminar on Mediation between juvenile offenders and their victims, organized by the Council of Europe and the Ministry of Justice (Institute of Justice) of Poland, Popowo, near Warsaw, 22-24 October 1997

C o n t e n t s

Introduction

Reasons for v/om

Legal background

1. Specific to v/om: none

2. restorative legislation:

CICA

Comp. orders

CSOs

3. framework within which v/om is practised

The English youth justice system

(Scotland)

Cautions

Prosecutor (fiscal)

power to discontinue (public interest)

Pre-sentence

Post-sentence

Pre-release

Practice

Northants: all cases screened

Lambeth/Hackney: v/om or conferencing

Leeds: pre-release

paid sessional workers

Scope for v/o m&c in existing and proposed legislation:

compensation orders

CSOs

Cautions

Final Warning

Reparation Order

Action Plan Order

Supervision Order

Local Child Curfew

Parenting order

Proposed legislation and opportunities for v/om

Points for consideration

Aims

victims

offenders

community

feedback

Standards

training (having clarified aims)

Dignan

independence

policy and practice process

record-keeping and monitoring

Safeguards

voluntariness

victims

offenders

grievance procedures (clients and staff)

evaluation: criteria

(see aims; the question of re-offending)

Developing the service

benefits for police, prosecutors, courts, prisons

numbers eligible

Recommendations from practitioners and K U Leuven international study group

i. I am grateful to Guy Masters for reading a draft of this paper and making valuable comments; and to all the victim/offender mediation services which sent information. This will be placed in the Library at Social Concern (see below, note 4).

ii. Punishment is here defined as the imposition of a sentence intended to be painful or unpleasant to the offender; it does not include rehabilitative or reparative sanctions.

iii. For simplicity offenders will be referred to as `he’, but female offenders are of course included.

iv. Standards in Restorative Justice, c/o Social Concern, Montague Chambers, Montague Place, London S E 1 9 DA.

The development of restorative justice

Paper for International Program on Victimization, mediation and restorative justice, Katholieke Universiteit Leuven, September 1997. Published in Juvenile offender-victim mediation, ed. by Beata Czarnecka-Dzialuk and Dobrochna Wójcik. Warsaw: Oficyna Naukowa, 1999.

A woman was threatened by a young robber with a knife when working in a convenience store. She was extremely traumatized, suffered nightmares, and her health deteriorated, but her family and friends were impatient with her, and colleagues even teased her because during the attack she had wet herself with fright. She was not invited to submit a victim impact statement because she was not identified as the victim – the store was. She wanted to be included in the process, and was terrified that the young man would come back to get her as he had threatened. She needed answers to the questions that had haunted her. The young man was sentenced to five years’ imprisonment, and when his parole hearing came up she travelled for four hours to attend it, but was not allowed to speak to him. Finally she was able to contact a victim/ offender mediation service, which arranged a meeting. The young man had no idea of the effect on his victim, and explained that all robbers say things like that, but don’t mean them. She told him that she forgave him and wished him well in the future. Since that meeting she has had no nightmares. Staff feel that it was a maturing experience for him, and there is a much better chance that he will respond to rehabilitative treatment. (much shortened, from Church Council on Justice and Corrections (1996: VII – IX)

This is an example of restorative justice in action, but not a `text-book example’: the victim was not involved in deciding how the offender would make reparation, and the offender was punished before he was given the oppor­tun­ity to make amends by meeting the victim. I have chosen it to suggest that restor­ative justice is not an all-or-nothing process: there can be degrees of `restorativeness’ even within the existing retributive system. Restoring does not have to be ordered through the criminal law. The ancient Israelites provided that if a man steal an ox he shall restore five oxen (Exodus 22:1); in some European jurisdictions a civil case is linked to the criminal one, and there have been suggestions (for example from Professor Louk Hulsman in the Netherlands and Sir Louis Blom-Cooper in England) that the criminal law itself should be `civilized’.

This paper will show some of the origins of restorative justice, and in particular the coming together of concern for the offender and for the victim. It will describe its early development in the form of victim/offender mediation, in Canada and the United States of America. It will take examples of the way the idea has taken root in Europe, from countries which have not changed their law (England and Wales), have modified it to facilitate mediation (Germany and Spain), or have incorporated it into (juvenile) law (Austria). It will then consider the re-birth of practices, restorative or communitarian or both, in countries which happen to be members of the British Old Commonwealth: New Zealand, Australia and Canada. (But perhaps this is no coincidence, because they are all countries where an indigenous culture, including ways of handling conflict, has been overlaid by the adversarial Western tradition.) Finally the paper will summarize features of restorative justice; some partially restorative measures; ways of promoting restorative justice; and conditions to be met if it is to fulfil its promise.

Origins

Mediaeval law provided for some forms of compensation by the offender to the wronged party, but it was, in England at least, superseded by punishment for many years (NB: punishment is here defined as the infliction of measures intended to be painful). There was a revival of interest in the congresses of the International Penal and Penitentiary Foundation; but it foundered on the problem of how to extract compensation from people who had no money (Tallack 1900). This was not resolved until the invention of community service as a sanction in the 1970s, and the introduction of victim/offender mediation which enabled victims to acknowledge the value of symbolic reparation. (For more detail see Wright 1996: ch. 1.)

The idea of restorative justice is to repair the harm caused by the crime; in particular to enable, or require, the offender to do so (when he or she is known), and to enable the victim (if he or she wishes) to take part in discussing what form this reparation should take. The community should play its part in making this possible; and relevant information gained about offences should be collected and passed to those responsible for crime prevention. The aim includes restoring what English law calls `the peace’, Americans `domestic tranquillity’, the Germans `Rechtsfrieden’ (peace under the law), and the Old Testament `shalom’ (a `profound sense of well-being’: Peake 1962: 474; a condition of `things being as they should be’: Zehr 1990: 130). Of course to put things back as they were is often not possible, nor can money compensate for the harm done, even if the offender could pay: we are talking about increased understanding, repaired relationships, making a new start. Anything the offender can do will be, for the victim, a symbol of that; it may consist in paying compensation, doing community service, or making an effort not to offend against anyone else, for example by taking part in a programme to tackle addiction, budgeting skills, improved literacy, or anger management.

Restorative measures for offenders have been around for a long time, especially for those who suffered deprivation in childhood, and further programmes to help overcome the after-effects of stigmatizing punishment – particularly of imprison­ment – such as unemployment, homelessness and the break-up of families. (It would be simpler not to send so many people to prison in the first place.)

The idea of helping victims was revived by Margery Fry, a leading penal reform­er; as a result of her efforts state compensation for victims of violence was introduced in New Zealand in 1963 and the United Kingdom in 1964. In some countries a civil action can be linked to a criminal case so that the victim can obtain compensation; in the UK the idea that the offender could be ordered by a criminal court to pay compensation to a victim was re-introduced in the Criminal Justice Act 1972. The same Act brought in community service orders, although it was not clear to what extent they were intended as a non-custodial penalty, an educative measure, or a way of making reparation (Wright 1984; Whitfield and Scott 1993).

A further move towards restoring victims was the introduction of victim sup­port, in which volunteers, members of the public with basic training, contact victims to see if they need help. This was started as an experiment in 1974, in Bristol, England, and has spread to the rest of the United Kingdom and to seve­ral other countries. Other services offer specialized help to victims of rape or family violence, or to the relatives of victims of homicide and road deaths, as well as supporting victims and other witnesses when they have to attend court. In addition to the individual assistance offered, these services have drawn attention to the previous disregard of victims’ needs and wishes in the criminal justice process. Much more is now being done to keep them informed and to consider their convenience, and indeed their right to be involved in the process, although there is still a long way to go, and there are question marks over their involvement in punitive, as opposed to reparative or protective, aspects.

These measures did something to help overcome the effects of the crime or of criminal justice, but they did it for victims and offenders separately. Making the link was the fruit of the imagination of a young probation officer in Ontario, Canada, as we shall see in the next section.

Reparative ideas were beginning to be discussed. An American criminologist sug­gested `creative restitution’ through payments or service to the victim or the community (Eglash 1958) and a British Home Secretary reflected on the idea of reparation to the victim, though without doing anything about it (Home Office 1959: 7). The Home Office did, however, commission the Hungarian émigré Stephen Schafer (1960) to review the question of restitution to victims of crime, and he brought together information from a much wider historical and geogra­phi­cal perspective than was usual in the English-speaking world. Schafer dis­tinguished `restitution’, the reparation of the victim’s loss, from `compens­ation’, a civil method in which the victim applies to society for amends for the dam­age or injury suffered. He saw the need to do something for the victim, and to enable the offender to earn money from which to pay restitution; but from the offender’s point of view he saw restitution as punitive (Schafer 1968: 114-5), and hence some way from the restorative ideal as it was to develop later.

Other writers began to question long-held assumptions. Louk Hulsman in the Netherlands pointed out that many things that can happen to us are as traumatic as being the victim of a crime, or more so – loss of a job, being injured at work, and so on – so that there was no reason to treat certain arbitrarily defined acts (or people) in a different way (Hulsman 1981). Using similar logic, New Zealand created an Accident Compensation Corporation which would compen­sate people for all types of injury, of which violent crimes were only a small proportion. Gilbert Cantor (1976) in the United States pointed out that if the court system were `civilized’, the civil standard of proof could be adopted; pre­sumably then more people who harm others would be brought to justice. An­other American, Randy Barnett (1977), pointed to some of the moral prob­lems of punitive sanctions: to inflict harm on one person in the hope of in­flu­enc­ing others is not justifiable, and does not work; even if it did, the aim of the justice system should be not the suppression of crime but doing justice to victims.

Another sanction based on making things better, although not for the victim, is community service. The Canadian Ab Thorvaldson (1978) proposed requiring the offender to `give something back to society’ as an aim of sentencing; this makes reparation to society, vindicates the principles of justice which the crime violates, and stresses offenders’ accountability for their actions. Although its aim is not rehabilitation, that is a common side-effect: community service helps offenders to acquire skills and self-esteem and to show regret for their offences – in short, it threatens to `beat probation at its own game.’ (This account is based on Wright, 1996.)

So there were moves to restore the offender, and to restore the victim; to require the offender to pay compensation or carry out community service. What the theory did not encompass at this time was bringing both victims and offenders together as part of the process. That was introduced into the process by practitioners; as far as theory is concerned, the next leap forward was made by Nils Christie of the University of Oslo, speaking in 1976 at the opening of the Centre for Criminological and Legal Research at Sheffield (Christie, 1977). Looking at the Western system from the point of view of an uncomplicated society in rural Tanzania, Christie said that conflicts ought to belong to the disputants, but had been `stolen’ by lawyers and other professionals. In criminal cases, this meant that the injured party, the victim, had been deprived of the right to take part. Not only that, but society has been deprived of an opportunity for norm-clarification. That is what the legal process is supposed to do, but on the contrary the law is concerned to make each case fit the Procrustean bed of law and precedent, winner or loser, believed or disbelieved, and in criminal cases guilty or innocent. This can be seen in the way lawyers demand yes-or-no answers from victims, whose evidence they want to fit into the appropriate category of `facts’; and they try to prevent the victim from saying things which the victim feels to be important, but which from a legal point of view are irrelevant, or damaging to one side’s case. The victim is left feeling that he or she may have told nothing but the truth, but certainly not the whole truth. In the mediation process, in contrast, people can say not which law was broken, but how the crime hurt them and what it made them feel, and offenders have the opportunity to acknowledge that. In short, the victim and the offender can relate to each other as human beings – whether or not there was a relationship before, which of course is often the case. Compensation and victim assistance can be helpful, but it is at this personal level that restorative justice can realize its full potential.

When was the term `restorative justice’ first used? I cannot answer with certainty, but in an early Mennonite pamphlet Howard Zehr (1980) describes the Victim/Offender Reconciliation Program (VORP), sometimes using the word `restitution’, and saying that `the aim is to restore persons to community’ (p. 18). In 1985, Zehr wrote a pamphlet in the same series, with the title Retributive justice, restorative justice, containing the first version of his much-quoted table of the old and new paradigms; after that the term was used more often, especially after his book proposing that the whole system should be viewed through a `restorative lens’ (Zehr 1990).

A recent re-formulation of the idea is set forth in Balanced and restorative justice for juveniles (1995), which stresses the importance of balancing the needs and responsibilities of victims, offenders and community. A problem, perhaps reflecting the source of the study’s funding (the US Office of Juvenile Justice and Delinquency Prevention), is that measures limited to juvenile offenders exclude victims of adult offenders. But a start has to be made, and the project can be extended later.

Practice

Most of these theoretical articles date from the mid-1970s or later; but the practitioners were there before them. It was in 1974 that Mark Yantzi, in Kitchener, Ontario, suggested that two teenage offenders meet their victims: the court agreed, reparation was made, and with backing from the Mennonite community the Victim/Offender Reconciliation Programme (`VORP’) was born (the story has often been told, for example by Peachey, 1989; Wright, 1996: 100-102). This is apparently the first programme in which victims and offenders were able to meet. VORP began to spread, to the Mennonite centre in Elkhart, Indiana, and other places in Canada and the US, and further afield.

The idea of resolving conflicts through face-to-face negotiation guided by mediators was meanwhile spreading in other fields. The Society of Friends (Quakers) gave training in non-violent techniques to marshals of civil rights marches, and the Friends’ Suburban Project in Philadelphia started the Community Dispute Settlement Program in 1976; ten years later the experiment was described in a book (Beer, 1986).

Other initiatives operated on both sides of the line that divides civil from criminal law. James Hughes, a prosecutor in Columbus, Ohio, found that much court time was taken up by offences such as assaults, or threats as a result of disputes; he knew about dispute resolution in the Van Der Hoeven Kliniek in the Netherlands, and thought that if it could work for the disturbed patients in a maximum security clinic, it should also succeed in more ordinary cases. He had two other important insights: that court hours are inconvenient to many people with jobs, and that trained volunteers can be competent mediators (as well as making possible a high case-load without excessive staff costs). His pioneering project, started in 1973, was called the Night Prosecutor’s Program. A dispute centre was established in New York in 1975 by the Institute for Mediation and Conflict Resolution; it dealt with large numbers of cases, some of them criminal, such as felony charges where the victim and offender knew each other, and took some pressure off the overloaded criminal courts.

The reparative ideal has deep roots in Minnesota, where Burt Galaway helped to establish a pre-release centre for prisoners to go out to work and repay their victims. John Harding (1982) reported that by 1979 some 200 restitution projects were operating in the US; most of them focused only on monetary restitution, but some offered victim/offender mediation as well.

Despite what was said above about victim/offender mediation, there was some early academic interest in community mediation. A Harvard jurist, Lon L Fuller, pointed out how mediation helps to create norms to suit situations, unlike law which tries to fit situations into laws and precedents (Fuller 1971: 308); and Richard Danzig (1973) proposed community `moots’, a suggestion which led to the establishment of Neighborhood Justice Centers, initially in three American cities. About the same time in San Francisco the Community Boards were established; unlike the NJCs they distanced themselves from the formal justice system, with a philosophy of community empowerment. This was more in line with Danzig’s ideas; he also worked with an anthropologist, Michael Lowy, who had suggested that moots like those in villages in Ghana could be used even in complex Western communities. This re-learning from pre-Western societies has been a strong component in the development of mediation, most recently in family group conferences in New Zealand and circle sentencing in Canada, as will be seen below.

The next phase in the development of victim/offender mediation, which was to become restorative justice, is one of the exchange of ideas. A number of people from the United Kingdom and other European countries, and Australia, made the pilgrimage to Kitchener, Elkhart, New York, San Francisco, and on their return they spoke and wrote about the new experiment and in some cases established projects in their own countries. These contacts were mainly made by visits: fifteen years ago the Internet had not been invented and even fax machines were uncommon. But exchange of information was not complete even within the same country: when I visited the US and Canada in 1983 I found that I had been in contact, from England, with some people who did not know of each other’s work.

It may be interesting to look at differences in the way the idea developed in different countries.

Europe

Victim/offender mediation has been or is being introduced in at least twelve European countries, although in some cases still on a small scale. By way of example we will look briefly at one country where there has been no change in the law (England and Wales), two where there have been changes to assist mediation (Germany and Spain), and one where it has been fully incorporated into the juvenile law (Austria). Brief details of the others are given by Wright (1996: ch. 7).

Among the English pioneers was John Harding. He had been in charge of one of the first community service order projects in the 1970s; in 1983, as Deputy Chief Probation Officer of the West Midlands, he commissioned a feasibility study (Wright 1983) which led to one of the first victim/offender mediation ser­vices, in Coventry. At first it was independent, but later it was taken over by the probation service, which reduced its community links, although it does have an advisory committee. Its running costs were somewhat high because it did not use volunteer mediators. Another project managed by the probation service was in Leeds, later extended to the whole of West Yorkshire. There the mediation is done by members of the community, who are trained but are not required to have previous qualifications; they are paid a sessional fee. Only about one in five of victim/offender contacts are face-to-face; it is commoner for the medi­ator to act as a go-between (indirect mediation). Mediators in that county have also taken on the work of contacting victims before the release of a prisoner, work which was entrusted to the probation servie by the Victim’s Charter of 1990 and 1996. It is felt that mediators, as neutral people, are well placed to under­take this work, and to enable victims to express concerns about the offen­der’s release; often parole conditions are added as a result, though the date of parole is not affected. When doing this work mediators do not expressly en­cour­age mediation, but facilitate it when victims or offenders spontaneously request it (West Yorkshire 1997). Currently some 25 services in England and Wales are operating or being established; most have about 100-400 cases referred per year.

The only area with substantial numbers of cases (about 1500 a year, most of them referred by the police) is the county of Northamptonshire, although it works with pre-court juvenile offenders only. This is probably because the decision to offer mediation is integrated into the criminal justice process, and it is significant that the service is managed by a committee representing all the main criminal justice agencies, as well as health, education and Victim Support. Lay mediators are not used. The name, “Diversion Unit”, suggests a focus on keeping young offenders out of the criminal justice system, but it takes account of the needs of victims; a survey found that 76% of victims were satisfied or very satisfied, and 92% of offenders (Northamptonshire 1995).

In England and Wales there have been changes in the law to accommodate compensation by offenders, and by the state, as we have seen, but none specifically to encourage victim/offender mediation. The same is true in Scotland, which has a different legal system; but there, as in other European countries, prosecutors (procurators fiscal) have deferred the decision to prosecute to allow mediation to take place (Warner 1992).

In an integrated system one more aspect needs to be available, but seldom is: arrangements for the many victims whose offenders are never found, and also for those offenders whose victims do not wish to take part. This has the further advantage of making participation in mediation genuinely voluntary for victims, because they know that if they do not do so, the offender can still show remorse in another way. Victim/offender groups of this kind have run in one or two places, for example in Rochester, Kent (Launay 1985, Launay and Murray 1989); a pilot programme has been run for armed robbers and victims in Long Lartin maximum security prison, which it is hoped to extend.

The German term is Täter/Opfer Ausgleich: the word Ausgleich (evening out – in the sense of making things level, not a social occasion!) implies successful mediation, and can perhaps be translated `reconciliation’. The word `Wiedergutmachung‘ (making good again, or redress) is also used; it conveys not only material but personal and interactive reparation by the offender (Netzig and Trenczek 1996: 247). German experts also studied (and visited) the American pioneering programmes in the 1980s. It was possible to introduce victim/offender mediation in Germany under existing law; a few youth workers had used it by 1984, but the first two projects, in Braunschweig and Reutlingen, started in 1985, followed in 1986 by the `Scales’ (die Waage) in Cologne (Schreckling 1990). One commentator saw V/OR as a move away from the `war against crime’ towards the `disarmament’ of the criminal justice system; but it was therefore regarded by some hardliners as a `trojan horse’, bringing in a change of paradigm, a criminal justice process aiming primarily at restoration and preservation of the peace (Pfeiffer 1992). The victims’ organization Weisser Ring also viewed it with some reservations, and warned that V/OR services should clarify their aims, and involve victims and victim organizations. They should not use mediation to improve the offender’s position in the criminal justice process, because of the danger of pressuring the victim to make an agreement (a point recognized in Austria – see below); and referrals should be accepted from victim organizations as well as criminal justice agencies, or at least the victim organizations should be brought in at an early stage (Eppenstein 1991). Given the tendency there has been in some quarters to operate V/OR services from the offenders’ point of view (Davis et al. 1988), these guidelines do not seem unreasonable.

A survey in 1996 found that V/OR is now available in 368 places in Germany, with about 9 000 offenders and 8 000 victims referred in 1995. Distribution, however, is uneven, with about 150 services receiving less than 50 cases a year. A quarter of the services are run by private non-profit agencies, but these account for half the cases. More detailed research is in progress on services and individual cases (Hartmann 1997).

The German Code of Criminal Procedure (sec. 153a) had already been amended in 1975 to enable the prosecutor, with the agreement of the court, to require the offender to pay a sum to the victim or a voluntary organization, or the state, or to perform community service, `if thereby the public interest in criminal pro­secu­tion would be removed’. The German Penal Code made some references to making good the damage and reaching agreement with the injured party (Dünkel and Rössner 1989), but a new sec. 46a was introduced in 1994: repar­ation or mediation is not mandatory, but courts must take account of it or give reasons why not (Hartmann 1997: 2). As in other countries practitioners have found that it is not always clear what is a criminal case or a civil one, or even which person is the offender and which is the victim (Netzig and Trenczek 1996: 246).

In Spain, it is traditional to put the interests, and education, of juvenile offenders first; from their point of view taken in isolation this could be regarded as moderately restorative. More recently, legislation such as the Act 35/1995 gives power to central government, in association with the 17 Autonomous Communities, to promote assistance to victims and state compensation for victims of violent and sexual crimes. Judges, prosecutors and others are given a duty to inform victims about state compensation and how to obtain reparation and the assistance of a lawyer at the time of trial and sentence; in `public crimes’ the prosecutor also conducts civil action for compensation in the name of the victim. For adults, the Penal Code of 1995 introduces community service (with the person’s consent and with respect for his or her dignity), but there are no provisions relating to V/OM.

Victim/offender mediation for juvenile offenders was introduced in Catalonia in 1990 with no new legislation, and Professor Antonio Beristain has proposed the use of yet another adjective: `recreative’ justice. Other criminologists have said that penal law could be `mercantilized’, and if (as in civil law) the reparation were focused primarily on deciding amounts of monetary compensation that would be a risk. Justice based on fully restorative principles would not, however, fall into that trap. In 1992 the Tutelary Courts for Juveniles Act provides three possibilities of reparation by juveniles to victims in all Autonomous communities of Spain: the prosecutor can propose that the judge discontinue the case if the juvenile has repaired the harm to the victim or agreed to do so; the judge can suspend the sentence for up to two years if the juvenile (with his parents or lawyers) and the victim agree on reparation; or the court can order community service. The first two of these provide scope for mediation but do not necessarily involve victims, who are assumed to agree if, when summoned, they do not object. Catalonia remains the centre of most V/OM activity; since 1996, all cases go to the mediation service for a decision whether mediation is appropriate. If the victim does not want to participate, reparation can involve community service (the foregoing is based on Varona, 1996 and personal communication).

Austria, like Germany, traditionally follows the `legality principle’ of mandatory prosecution; and like Germany, has felt the need to modify this. In Austria it is, as Christa Pelikan explains, the juvenile law that has been changed, in 1988, to allow an indictment to be dropped after conflict resolution has succeeded, or at least an effort by the young person has been recorded by the court. This followed a pilot project from 1985 to 1987, in Linz, Salzburg and Vienna, inspired by the idea of `reappropriation of the conflict’. Conflict resolution is seen as encouraging and strengthening the capacity of people to deal with the material and emotional damages and grievances created by people against the integrity and interests of their fellow human beings – not a panacea but a step towards more personal autonomy. This could be a `mission state­ment’ for restorative justice, although that term is not used. The Austrian ex­press­ion is aussergerichtlicher Tatausgleich (out-of-court offence resolution); it is controlled by prosecutors and is seen as strengthening their role. It was felt that criminal law was unable to restore the equilibrium disturbed by a criminal act; and in any case, research showed that only 15% of conflicts lead to a sanct­ion, including only 5% involving social control agencies, and 1% criminal jus­tice. So it was felt that inviting the victim to express what kind of reparation he or she wants serves the victim’s interest better than a criminal trial, as well as sparing the young offender the stigma of a criminal record (Pelikan 1991).

It was felt that the `need to punish’ is much overestimated: victims mainly want reparation, concern and information, according to Dr Udo Jesionek, vice-president of the Weisser Ring in Austria, and president of the Vienna Juvenile Court. One important feature of the Austrian process is that the consent of the victim is not required; this is at first sight paradoxical, in a process that is intended to empower both victims and offenders, but the offender is allowed, to make reparation in another way if the victim does not take part, and this happens in practice. Jesionek stresses the great importance of this provision, because it removes from the victim a possible, unacceptable pressure to accept an agreement (contrast the New Zealand family conferencing procedure, below). Advice to the participants is available from social workers/probation officers, and from Weisser Ring, respectively. Conversely, participation is voluntary for the juvenile; if he does not take part, there will be a trial, unless he receives a warning or the case is discontinued, and if he does take part there may still be a trial if the prosecutor or judge does not consider the reparation adequate. The juvenile is required to acknowledge the act, but not to make a formal confession of guilt. There are leaflets for juveniles in all police stations stressing the importance of making good damage or loss; this may be done without state intervention, and may lead to discontinuance (Jesionek 1992). The Penal Code also allows discontinuance when adults have made reparation, and this is done especially when a juvenile and a young adult have offended jointly.

New ideas in the Old Commonwealth

The Maori people of New Zealand were asking, in the 1980s, for greater recognition of their traditions, not least in criminal justice: not only were they over-represented in courts and prisons, like many ethnic minorities, but the adversarial procedure was foreign to their culture. When a young person was in trouble they would assemble the family, clan and tribe to discuss what to do for the best; when the young person had harmed someone, the injured party also took part. There was already a feeling that social workers should involve families more in decisions that affected them; and there was an interplay of ideas with other parts of the world – Burt Galaway, for example, visited more than once and carried out a public opinion survey confirming, as elsewhere, that many people, when asked, support reparative sanctions (Galaway 1984; see also Lee 1996). The Children, Young Persons and Their Families Act 1989 introduced the new procedure using family group conferences both for welfare cases and for those involving a crime (and hence usually a victim). There was also official interest in the concept of restorative justice, and a discussion paper was issued (NZ Ministry of Justice 1995); but with the change of coalition government after the 1996 election this has not yet been taken further.

One significant innovation was the involvement of the offender’s family and the victim; another was the way the procedure was combined with the criminal justice process. Most 14- to 16-year-old suspects, provided they do not deny the offence, are first referred to an FGC; this normally deals with the matter, but if the case is too serious, or a satisfactory agreement cannot be reached, it can recommend that the young person be summoned to court. The other route to court is by arrest, which is only allowed if the young person is likely to abscond, re-offend or interfere with evidence or witnesses; but if the young person does not deny the matter, the court must refer the case to an FGC, rather as in England it asks for a pre-sentence report. In the great majority of cases the FGC’s agreement is endorsed by the court; but because the court oversees the process, crimes of any gravity (except homicide) can be dealt with in this way. The number of court hearings for this age-group went down from 63 to 16 per 1 000. Before the Act there were 200 residential places for this age group; after it, only 76 were needed.

Because the idea evolved primarily from a welfare perspective, however, there was at first a tendency for the process to be offender-centred; FGCs were arranged without consulting victims about convenient times, and in some cases without even informing them. After this was brought to light by research, practice improved; also, victims were allowed to bring relatives or other supporters when it was pointed out that they were outnumbered by the offender’s extended family. One point in the procedure continues to cause unease, however: because it is welfare-based, it includes the `private time’ of the offender’s family, during which they produce a plan for reparation and other action. The victim can veto this (and so can the police); but if the victim does so, he or she is in the invidious position of holding up the proceedings and possibly making it necessary for the offender to go to court. Victims can avoid this pressure by acquiescing, or by not taking part (but they can ask someone else to represent them). Despite these problems, 60% of victims who attended FGCs found them `helpful, positive and rewarding’, but about a quarter felt worse. The researchers found the service suffering from `funding starvation’ which limited the facilities available for offenders who had agreed to attend them, such as anger management courses and job training programmes (Maxwell and Morris 1996). It has been suggested that the distinction between FGCs concerned with the young person’s welfare, and those where victims are involved, should be marked by giving another name to the latter, such as `victim/offender conferences’.

It was a coincidence that the Australian criminologist John Braithwaite was working on his theory of `reintegrative shaming’ at about the same time (Braithwaite 1989). Its basis is not so much restorative as communitarian, stressing individual autonomy and limitation of state power, but the theory fitted the FGC practice well. An overhaul in the New South Wales police gave an opportunity to adapt the idea, and it was pioneered in a town called Wagga Wagga. The process was modified, especially by including the victim’s family, and by having everyone present in the room throughout, so that all can contribute to finding solutions agreed by everyone. It has however been criticized for being based in the police force; and although Braithwaite distinguishes `reintegrative’ shaming from traditional stigmatization, some observers fear that this distinction will not be understood by the public and politicians, and perhaps even some practitioners. One of the originators of this method, Senior Sergeant Terry O’Connell, has visited Britain and the US to promote it. Another distinguishing feature of FGCs is that, by involving the families, they constitute a communitarian approach to justice; this could be enhanced by the involvement of lay mediators, subject to adequate training and supervision.

Even more communitarian is the idea, pioneered in Canada, of sentencing circles. These, too, have roots in the traditions of First Nations; they were first implemented by a judge, Barry Stuart, in 1992. Members of the community, including the victim, can join the circle and are consulted, but it is the judge who makes the sentencing decision (LaPrairie 1995). The discussion in the circle provides an opportunity for those involved to tell their stories, and for the community to find constructive and healing ways forward; Judge Stuart has said that the test of success is the effect on the community. But the agenda is not entirely restorative, because sentences can still include punitive sanctions, albeit often less harsh ones than the judge might otherwise have imposed. To this extent, although circle sentencing gets high marks for community involvement, it falls short of the fully restorative ideal, because for those who take part it legitimates the acceptability of punitive sanctions.

Conclusion

At the Conference on Restorative Justice for Juveniles held in Leuven in May 1997, several speakers complained that there was no agreement about what restorative justice is. At such an early stage in the evolution of the concept, some diversity is hardly surprising. Work is still in progress, and may continue to be for some time to come. A description, if not a definition, of the idea of restorative justice is attempted at the beginning of this paper (see section on Origins). To conclude, it may be worth considering four aspects of the concept.

Distinguishing features of measures having a place in a restorative system of justice A restorative measure is based on healing, not on punishment (as defined at the beginning of this paper), and hence any restriction of liberty is not for punishment but for public protection – and possibly for the enforcement of agreed reparation, although there is a limit to what people can be compelled to do if they are determined in their refusal. It shows the offender the human consequences of his act, but also enables him to make amends for it. It provides opportunities for both victim and offender to communicate, and to agree a reparative action plan. The community is involved in the process.

Partially restorative measures include compensation and community service orders, and state compensation to victims of violence, as well as community assistance such as Victim Support. Measures such as keeping victims informed of the progress of their case, and supporting witnesses in court, though welcome in the existing system, are not truly restorative because they palliate the effects of the criminal justice system, not of the crime itself. Measures usually described as rehabilitative have some restorative aspects as regards the offender, and to some extent the community, but little from the victim’s point of view.

Ways of promoting the introduction of restorative justice include raising aware­ness of the benefits to victims, and of the fact that many of them want some good to come out of the harm they have suffered. There should be recog­ni­­tion that many members of the public support the idea of reparation by offenders, but that the process also holds the offender accountable. For practical reasons, however, there should also be awareness of the benefits to the agents of criminal just­ice, such as police, prosecutors, courts, and probation and youth justice workers, including reduc­ed cost and workload, and increased job satisfaction.

Conditions to be met if it is to fulfil its promise Those who are used to the conventional system are, not surprisingly, sceptical of proposals for change, especially a change of most of the current value system. But they should not demand higher standards for the new than they tolerate in the old. Restorative services should not, for example, be dismissed if they fail to lead to lower reconviction rates than other measures; if they lead to similar reconviction rates, but have advantages that conventional measures lack, then they deserve to be used. It is unreasonable to expect that a one- or two-hour mediation session will change a person’s whole life, unless it is backed up by adequately resourced supportive measures in the community. Services must concentrate on the benefits to victims, and not be oriented more to offenders. There must be high standards; good training; safeguards for both victims and offenders; and clarity about aims, which are the criteria for evaluation.

It has been said that criminal justice cannot be fair in an unjust society. Adversarial procedures and punitive sanctions tend to add to social frag­mentation and injustice. The case for restorative measures is that they have the potential to help to re-create communities and make society a little more fair.

c:rjleuvlect (rev)

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Tel/fax (+44)/(0) 181 671 8037

14 October 1997 c:rjleuvlect (rev)

Victim/offender conferencing: the need for safeguards

Paper presented under the title “Family group conferencing: is it restorative? Is it just?” at a workshop at the International Conference: Restorative justice for juveniles – potentialities, risks and problems for research. Leuven, May 1997.

 ABSTRACT

Two relatively recent ideas are attracting interest among those who are seeking something better than criminal justice: the concept of restorative justice, and the practice of conferencing. Are they made for each other? Is conferencing the way to put restorative justice into practice? After outlining restorative justice and conferencing, this paper will examine how well they fit together, from the point of view of victims, offenders and the community; criteria for research assessment are proposed, and safeguards and points for concern are discussed. Methods of evaluation, follow-up, monitoring and feed-back are put forward. Potential problems and the future of restorative justice are reviewed.

 Restorative justice

At the heart of the idea of restorative justice is the recognition that crime is not merely law-breaking: it causes harm – to individual victims, the community, the state or the environment. The first response should, therefore, be to try to remedy that harm, as far as possible, or if necessary to make things better than before. Secondly, when offenders are known, they should be required to contribute towards making things right as much as they are able. This may be by paying compensation, meeting the victim, working for a charitable organization, or co-operating with a rehabilitative programme.

Thirdly, the community should play its part by offering support to the victim, for example through Victim Support, and by enabling offenders to make amends, for example by providing employment so that they can earn the money with which to pay compensation. What “the community” is will be discussed below.

The fourth leg of the restorative justice model is a specific strategy for crime prevention. This would replace the unsuccessful policy of reliance on the deterrent effect of punishing the small proportion of offenders who are caught and convicted. It would be implemented by a specific department of government, to which there would be feedback of the lessons to be learnt from crimes as they take place, so that the strategy can be improved. Thus it would be the crime prevention department that would be assessed on the basis of the crime rate; for the justice process the criterion would be its handling of individual cases. In the 1997 general election in the United Kingdom, two political parties, Labour and Liberal Democrats, have said that they will make local authorities responsible for “partnerships” to help prevent crime, and to set targets for crime prevention (Labour Party 1997: 23; Liberal Democrats 1997: 30).

Initially, restorative measures have been seen by many people as a new option available to courts, alongside traditional justice; but as they become more widely used they provide an opportunity to change the underlying philosophy in a restorative direction. The restorative philosophy has some different aims and hence different criteria by which to assess its success. Retribution for its own sake is not included, because a restorative response is held to be just as powerful and more constructive. Another traditional aim is general deterrence. The deterrent effect of the probability of being caught is at least as great when the system is restorative, and so is the opportunity to make the response proportionate to the offence (although this has complications which will be discussed below – see “Inequality”). Many of the inconsistencies of conventional sentencing arise precisely because it is trying to do several incompatible things at once: not only to deter, which means to try to frighten the general population into good behaviour, but also to resolve an individual case, and to symbolize, by the amount of punishment, the seriousness with which the court regards the offence (or with which the court believes that politicians and popular newspapers will regard it). Restorative justice uses a more constructive symbolism, recognizing that people are not motivated only by fear; their behaviour can be influenced by tangible incentives, and by intangible ones such as being well thought of by people who are significant in their lives, and hence having good self-esteem. It spreads understanding of the true reasons why people should not offend against one another: the reason why I should not commit an offence against you is not that I will be made to suffer if I am caught, but that you will suffer whether I am caught or not. But I probably shall not care much about you unless someone cares about me.

Restorative measures can be imposed by courts, but many advocates of restorative justice consider that it is most effective when the way to “make things right” can be decided by the people directly affected, the victim and the offender and, if conferencing is used, their families and supporters. The courts will then act as a safeguard by overseeing the process, as will be proposed below.

The foregoing is a description of the whole concept; parts of it can however be introduced alongside the existing system, e.g. Victim Support, or within it, e.g. compensation or community service orders. Advocates of restorative justice accept these as steps towards fuller adoption of the concept, but do not favour their use as token measures grafted on to a retributive system.

In this paper the words “restorative” and “reparative” will be used interchangeably. “Reparation” may mean an apology, money payment, work for a charitable organization, or co-operation with a rehabilitative programme. “Justice” will be used in a broad sense, to mean fairness in a legal context; “due process” will refer to the legal rules of procedure, generally intended to protect the defendant. “Punishment” means a sanction whose primary intention is to cause pain to the offender, unlike those sanctions which aim at rehabilitation, reparation or containment, and are not deliberately unpleasant.

Family group conferencing

If restorative justice were limited to reparation, it could simply be imposed by a court. But the concept includes not merely the outcome but the process: offering those involved the opportunity to communicate, and to agree about how to make things better. This process is commonly called victim/offender mediation, although some prefer the word dialogue; in Germany it is offender/victim settlement (Täter/Opfer Ausgleich), in Austria out-of-court offence resolution (aussergerichtlicher Tatausgleich). It generally involves a one-to-one meeting between the victim and offender in the presence of the mediators, or indirect communication with the mediators as go-betweens, but either party may bring family or supporters. In family group conferences (FGCs) the families or other supporters of both parties are generally present, although in New Zealand for minor offences the young person is often accompanied only by his or her parents (Stewart 1996: 67). FGCs have been presented as a radically new method; but it is hard to see a clear dividing line between them and victim/offender mediation, and much of what will be said about either of them in this paper can be applied to the other. The word “conferencing” may be used as a more general term, and “facilitators” for those who conduct the sessions.

FGCs were designed to incorporate features of Maori traditional methods, but New Zealanders were also aware of the development in North America of Victim/Offender Reconciliation Programs (VORPs), not least because of visits by Burt Galaway from the mid-80s onwards. Galaway found that public opinion in New Zealand was receptive to the idea: most people would be likely to accept a reduction in the use of imprisonment for property crimes if there were an increase in the use of reparation (Galaway 1984:11, quoted in New Zealand 1995). A variant of the process, sometimes called “community accountability conferencing”, was developed in New South Wales, Australia, and has also been adapted for use in schools (Maroochydore State High School (n.d.)). Conferencing could become the starting point for a process of change within the system.

Victims

A distinguishing feature of restorative justice is that the victim should benefit from it at least as much as the offender, although early practice in victim/ offender mediation and FGCs did not always achieve this. It is therefore necessary to ask what victims want. This has been summarized by Teresa Reynolds, policy and information manager of Victim Support, as follows. I have italicized the needs which tend to be met better by a restorative process.

Help with the practical/emotional effects of crime

To be treated sensitively and with respect

– To know what’s happening in the case

To understand what’s happening in the case

To be heard and taken seriously

– Public acknowledgement that wrong has been done

– To feel it is worth pursuing the case

Quick resolution of the case

To know “Why me?”

– To know that the offence will not be repeated

– Some want an apology from the offender

– Some want compensation

– Some want retribution (most do not)

– Most want to be free of responsibility for decisions about the offender

(Reynolds, 1997)

The first of these is also provided by Victim Support in the United Kingdom and by similar organizations elsewhere, and efforts are being made within the British system to achieve some of the others, through the Victim’s charter and related initiatives (Home Office 1996).

The traditional system does not serve victims well. A survey in England in 1991 found substantial proportions, sometimes the majority, who would have liked more information about court procedures, how to get to court, and what to do on arrival. They felt that there was insufficient consultation over setting the date of the hearing, and insufficient information about time of case; sometimes cases did not even take place on the scheduled day. No one told them what to do in the courtroom, nor explained the roles of different officials, and they felt nervous, intimidated, worried or frightened in the witness box. A common complaint was that they had to wait in the same area as the defendant (J Raine and R Smith, The Victim/Witness in Court Project: report of the research programme (1991), cited in Victim Support 1995). Many of these are now being addressed in England and Wales, through the Crown Court Witness Service and initiatives introduced by the Victim’s Charter, but some, such as a chance to be heard, asking “Why me?” and apologies, are difficult within traditional structures; whereas in victim/offender mediation and conferences, most of them are routinely taken care of.

Restorative justice for victims

Traditional court procedure is regarded as merely a means to an end, whereas mediation and conferencing take account of the effects of the process. But if they are to help the victim’s recovery, they need to make sure that restorative practices are adhered to. For the victim this means that the criteria for selection of cases should relate to victims as well as to offenders. The location of the meeting should be neutral, and the time and place convenient. Victims should have the opportunity to describe the crime in their own words, and to tell the offender the effects it had. They should be able to be involved in working out how to “make things right”, but not in deciding on punishment. They should be able to bring their family and/or supporters, and their participation should be voluntary.

The particular needs of victims, and the families and supporters of both victims and offenders, must be considered. They may need to be reimbursed for the expenses of travel, accommodation, child care, and loss of earnings; this should be as much a normal part of the process as it is for witnesses in a traditional trial. Qualified interpreters should be available when necessary.

Safeguards for voluntary participation of victims

Although mediation and conferencing are officially voluntary, a criticism is that victims and offenders might feel under pressure to take part, knowing that if they refuse, or do not accept the agreement, they would be responsible for the young person’s being taken to court and perhaps sentenced more severely. This has been raised as a concern in England by Victim Support, although in Scotland and other European countries, where prosecutors discontinue cases if mediation is successful, it does not appear to be seen as a problem. There are several ways of minimizing this effect.

1. The possibility of mediation can be raised, perhaps by a Victim Support worker, before the offender is known (provided of course that he was not known to the victim already), to allow the victim time to reflect.

2. Mediation may be offered after the decision to caution or sentence; thus the victim’s choice about whether to take part cannot influence those decisions.

If mediation or a conference is offered before the final decision in the criminal justice process:

3. The offender can do community service instead of direct reparation to the victim; this enables him to show in a tangible way that he regrets the action, even when the victim wants to have no contact with him.

4. The offender can take part in a victim/offender group (Launay 1985; Launay 1987; Launay and Murray 1989) if the victim does not want a personal dialogue. This provides an opportunity to discuss the offence, for victims whose “own” offenders are not caught, and for offenders whose victims do not want to meet. It has not, however, been much used so far.

5. Reparation and mediation can be considered separately. Mediation can be seen as a personal communication between the victim and offender as individuals, which does not influence the criminal justice process; either victim or offender can therefore choose not to take part, without affecting the sentence. If however the offender makes some reparation, it is fair that the court should know about this, so that it can be taken into account in sentencing.

6. Victim/offender mediation can be indirect: the mediator can act as a go-between. At a conference, the victim need not be present at all: he or she can be represented by a supporter. This may not give such good results (Marshall and Merry 1990: 243-244; Umbreit and Roberts 1996: 27), nor offer victims so much opportunity for empowerment, but may place less pressure on them.

In all cases, preparation of the victim and the offender before the mediation or conference is essential, so that they have realistic expectations and can make an informed choice (Carroll 1994: 177). Also critical is the facilitators’ assessment of who should be invited to take part. This has implications for the training of mediators and facilitators, and, because it takes time, for the adequate funding of the service.

Assessment

What should be the criteria for assessing restorative justice from the victim’s point of view? Those that are central to the concept of restorative justice are not the easiest to measure. Many victims would like to know that the process makes offenders less likely to re-offend; but as we have seen, this is not a primary aim, and it is a lot to expect of one meeting lasting perhaps an hour or two. The agreed reparation will take longer, and perhaps have additional influence on the offender’s attitude and behaviour.

A basic measure of whether victims like mediation is the rate of attendance at sessions; to discover how they feel after taking part, some form of follow-up should (with their permission) be built in to the process, to monitor their satisfaction; this should also be allowed for in the project’s budget. In-depth research can be carried out from time to time to assess other factors such as the reduction of fear as a result of meeting the offender. Other yardsticks are suggested by the Balanced and Restorative Justice Project (1995: 17, 39-41), such as the number and proportion of victims satisfied, whether victims received sufficient information, and whether the outcome adequately reflected the severity of the offence (but see “Inequality” below).

Potential problems for victims with conferences

The original New Zealand model of FGCs was evolved from a welfare perspective, in addition to the Maori influences: when a young person needed support, the extended family would be invited to attend a conference, including “private time” with no social workers present, to arrive at a plan that would be in the young person’s best interests. This model has been adopted in some English social service departments (Marsh and Crow 1996). The New Zealand Children, Young Persons and their Families Act 1989 also applied the idea to cases where the young person had committed an offence and there was a victim; but this led to three problems. The first was that too little account was taken of the convenience of victims in arranging the time and place of the conference. Secondly, victims could feel unsupported in the presence of the young offender and several members of his or her family.

The third problem concerned the procedure at the conferences. After a general discussion of the offence, the offender and his or her family have “private time” during which they formulate a plan for the young person to make amends and keep out of trouble. They then return and explain it to the victim. If the victim is happy with it, there is no difficulty; but if the victim feels that it is inadequate, and amendments to the plan cannot be agreed, he or she is put in the position of having to object, and to be responsible for the young offender’s return to court. This combination of factors is the probable explanation of the results of the first research into the New Zealand experiment, which is the only programme involving victims and offenders where only half the victims were satisfied with the outcomes and a quarter said they felt worse (Maxwell and Morris 1996: 100). The 1989 Act was amended in 1994 and some of these concerns have been addressed; victims have the right to bring their children, all the residents of the house in the case of burglary, and supporters, and to be consulted about the time, date and venue. They can apply for travel costs and reimbursement of lost wages (Stewart 1996: 68).

The picture is complicated because there are different conferencing models in use. Similar ones are used in New Zealand and parts of Australia; but the one adopted in Wagga Wagga, New South Wales, has some differences, in addition to its somewhat controversial location in the police service. Three of these are worth considering. Firstly, the conference may begin with a social worker reading out what the young person is alleged to have done (NZ) or the offender may be asked to describe what took place (NSW). A further possibility would be to offer the victim the option of speaking first. Secondly, the offender’s family and the victim and supporters may withdraw to separate rooms to discuss the action plan (NZ), or the whole discussion may take place in a single group (NSW), which goes some way to meeting the concern about pressure on the victim, referred to in the previous paragraph. Thirdly, the conference may be regarded as finished when agreement has been reached (NZ) or importance may be attached to informal contacts afterwards, before everyone goes home (NSW). The pros and cons of these options need to be considered.

Offenders

Restorative justice for offenders

The informality of restorative justice may allow offenders to speak more freely than in court, but it must be balanced by safeguards (see below). It can increase their understanding, by showing that what they have done is wrong not merely because it is against the law, but because it has harmed another person. It enables them to make things right (at least partly) in an active way, rather than merely submit passively to punishment (or rebel against it). A conference may also bring together their family in a setting which potentially enables them all to work together in the interests of the young person.

Safeguards for offenders

Restorative justice may give the appearance of being “soft”, although it can be seen as more demanding than punishment because it makes offenders face up to the real effects of their actions; as a result, concern is often raised that young offenders could feel under pressure to admit guilt when they may have a defence in law (see for example Warner 1994; Sandor 1994: 159). A partial answer is that the same objection can be raised in relation to any form of pre-trial diversion from the criminal process, although Warner (1994) suggests that the risk may be greater with conferences. In fact, young people are not required to admit guilt before an FGC in New Zealand; it is enough that they do not deny the act. In Austria, the basis is acceptance of civil liability, Einstehen für die Tat (Braithwaite 1994: 205). A distinction should also be made between the person who denies committing the act at all, and the one who admits the act but claims that it was not a crime, for example because he was entitled to take the goods, he was acting in self-defence, or the victim consented. In such cases, the legal dichotomy “Guilty/Not Guilty” leaves an unfinished conflict between the victim and the offender, which can be better resolved in a mediation or conference session than in court. If the accused has wrongly admitted guilt, mediation or conferencing is a good way of bringing this into the open. Finally, if the worst happens and an innocent person does plead guilty, it is perhaps less of an injustice to make them do something constructive than to inflict punishment on them.

A related concern is that offenders might be pushed, by the victim or their own punitive family, into agreeing to make reparation out of proportion to the seriousness of the offence or to their ability to deliver.

Both of these dangers require that offenders should have access to lawyers; these, however, would have to be in sympathy with restorative aims, and not bury them in rigid legal precedents. Police should be required to ensure that a parent or guardian is present during questioning (Warner 1994). New Zealand provides that a youth advocate may attend if requested by the young person, paid by the court without means testing (Stewart 1996: 71). A further safeguard against disproportionately large (or small) action plans is that for the more serious offences, the courts have to approve plans that have been agreed at a FGC, and may alter them if they appear too burdensome (or insufficient). This is especially necessary because in New Zealand the action plan can include punishment; in true restorative justice punishment (in the sense defined at the beginning of this paper) would not be an option, but there would still be a need for court supervision of preventive measures such as curfews and especially residential programmes, to ensure that these were not disproportionate to the offence and that particular groups (girls, ethnic minorities) are not subject to excessive intervention (Warner 1994: 149). Compulsory detention would be reserved for cases where the protection of the public required it; institutional regimes would be reparative, not punitive. Some of the money saved by sending fewer people to prison should be used to provide reparative programmes in the community.

Courts would also be necessary to decide the small proportion of cases where the offender denies the alleged act altogether; but under a fully restorative system the court’s sanctions would be reparative, not punitive.

Inequality

Question of proportionality and consistency are consistently raised in discussions of conferences (especially by lawyers). What happens if the offender cannot conceivably compensate the victim fully? Inevitably, different victims and offenders will arrive at different action plans for outwardly similar offences, and the variation will probably be even greater than in the courts. Does this matter? If the each victim and offender (and their families and supporters) have agreed on what appears right for them, does it matter if others have resolved things differently? Warner (1994: 148) thinks it does: offenders could become aggrieved when they find out. But perhaps the converse is the problem: courts try (not very successfully) to impose consistent sentences when the impact of the crimes on the victims, and the impact of the punishments on the offenders, are disparate. And the fundamental difference remains: courts are aiming at consistency of punishment, where inequalities may indeed cause resentment; but conferences aim at reparation, tangible or symbolic, which is rightly determined by the needs and wishes of the victim and the capabilities of the individual offender.

Assessment

Since under restorative justice the primary responsibility for crime control would be with a crime prevention agency, the reconviction rate would not be the main measure of “success”, although it will need to be monitored to make sure that re-offending does not significantly increase (but it could also ascertain whether the frequency and severity of offending decline in the longer term – on which little longitudinal research with control groups has been done so far). The criterion used in assessing victim/offender mediation has been whether the offender felt fairly dealt with; perhaps an unexpected choice at first sight, but if the system aims to lead the offender to respect the law, rather than merely fear it, this is appropriate. One stated aim of conferences is to strengthen the young person’s family in supporting and controlling him or her. Other factors which are relatively easy to measure could be used, such as the amount of compensation or community service, but these depend on individual agreements between victims and offenders, so that more does not necessarily mean better. Another measurement is whether the agreed compensation or community service is actually completed; this may be regarded as a measure of the reparation made by the offender, or of the victim’s satisfaction.

Restorative measures require active participation by the offender, and this should be assessed; but often offenders cannot complete what they have agreed to do unless facilities are available: community service opportunities, occupational training, social skills programmes, or simply employment. The extent to which these have been made available should be part of the monitoring (BARJ 1995: 21).

Potential problems for offenders

The offender may be alienated from his or her family, or not wish a certain parent to be present. Efforts are then made to find a “community of care”, or a peer, but this is not always possible (Wundersitz and Hetzel 1996: 123-4); in that case a volunteer mentor or befriender could be. The young person could be overwhelmed by the number of people taking part in the conference. If the conference shows that the offender has specific needs, he or she can be referred to a separate care-and-protection FGC for the family only, but in practice this seldom happens (Maxwell and Morris 1996: 98).

Participation in mediation or conferences should be voluntary for offenders, as for victims; the safeguards for victims, listed above, will also protect offenders. They should have a right to make reparation to the community, even if the victim does not want to accept anything from them. But although they can choose not to take part in mediation or a conference, they cannot insist on it if the well-being or safety of the victim is considered to be at risk.

When supervision or detention is necessary for the protection of the public, there will be a problem in determining when the offender may safely be released; but this is the case with any indeterminate sentence, and it will be simpler in a restorative system because public safety will be the only criterion.

Community

There is some discussion about what the community actually is; in large cities people often belong to several communities, of people who do the same work, or belong to the same clubs or voluntary organizations, or come from the same ethnic or religious background, and so on. People who live in the same street or block of flats do not necessarily form a community. So how does restorative justice affect “the community”? Firstly, the families and supporters of victims and offenders, who attend a conference, are the members of the community most affected by the particular crime. Secondly, if the mediation service uses lay facilitators, they will form another mini-community. In both these ways, mediation and conferencing can make a small contribution towards re-creating a sense of community in urban areas by being what Germans call bürgernah (close to the citizens). Thirdly, the local government of a town or part of a city acts on behalf of the whole community of local citizens; they benefit when an offender is reintegrated into society, but the local authority has a responsibility to provide the resources to make this possible, such as educative programmes, detoxification, and above all work and accommodation.

The question has been raised, whether victim/offender mediation ought to take place in public. In fact court proceedings are often attended by very few people, and (in England at least) the public is not admitted to youth courts; so a conference, attended by several people from the families of the victim and the offender, may be considered to provide an acceptable degree of openness to the public.

The involvement of the community should help to educate people in the need for preventive social policies, to which they themselves can contribute. This would help to build what Walgrave (1995: 236) has called an “emancipatory society”. It could help people to recognize each other’s human needs, and perhaps, at a more general level, point the way to substantial social reforms which could reduce pressures towards crime. Many victims show sympathy and understanding to offenders (Marshall and Merry 1990: 157). Replies to a small survey of people working in mediation or in criminal justice suggested that meeting an offender might “lead the victim to be a little more charitable”, but probably not to significantly change their attitudes to social policy, or their life-style (Wright 1996: 130). Kay Pranis, restorative justice planner in the Minnesota Department of Corrections, has suggested as a more modest goal that “The ultimate measurement for the system should be: Is the community stronger after the criminal justice intervention than it was before the crime was committed?” (Pranis 1997: 40).

Evaluation, follow-up, monitoring and feed-back

This would not, however, be easy to measure. Nor would the broad measure of success suggested by Maxwell and Morris (1996: 105): the operation of a fair, humane and acceptable methods of dealing with young offenders (and, the authors might have added, supporting victims), or promoting independence and self-sufficiency of individuals and families (Carroll 1994: 169). Approximate criteria can be devised, however. Observing a process and modifying it in the light of experience gained is far from being unique to restorative justice, but it should form part of good practice. In traditional justice much relevant information is not collected at all, for example the cost of the sentences imposed by individual judges; in the United Kingdom performance indicators are being introduced, but in a way which could encourage agencies to modify their recording practices in order to appear more efficient. An inquiry has, for example, been announced into alleged “massaging” of crime figures in Nottinghamshire (Independent, 30 April 1997). Good practice could be divided into four parts.

Evaluation

After each process, such as a conference, those concerned should allow time to review it and consider whether they handled it as well as possible. Their training should include the ability to give and receive constructive criticism. The use of two co-facilitators assists this process; in addition an outside independent evaluator could observe actual meetings (with the permission of all participants) to assist in evaluating how the facilitators handled the meeting and how well it fulfilled restorative aims.

Follow-up

A normal part of the process should be to ask the participants’ permission to contact them after a time to ask how the situation has developed, and how the process worked from their point of view.

Monitoring

Routine record-keeping should include basic information relevant to providing good service, insofar as this can be collected without being intrusive: for example, ethnic backgrounds, languages spoken, time intervals between stages in the process. This information should be published in the annual report, with suggested explanations of any discrepancies, for example between the ethnic background of participants and facilitators and of the local population, and proposed action to make improvements.

In addition there should from time to time be independent in-depth research assessment, as has been suggested above.

Feed-back

The three previous points relate to the operation of the service; there should also be feed-back from the justice process to the wider society. If it is found from conferences that many young people who commit offences share certain characteristics (truancy from school, lack of skills, unemployment, family discord, and so on), this information should be passed to the crime prevention agency, so that social policy can be adapted to reduce this pressure towards crime. (Information would not of course be revealed about individual cases without the person’s consent, because proceedings in mediation and conferences are confidential.) For example, a survey of 14 boys aged 15 to 16 in Belgium who had stolen about 50 handbags from women aged 60 to 80 found that most of them had no elderly people in their family, and little or no empathy for elderly people, whom they saw as always grumbling – “ça râle tout le temps” (Grandjean 1993); this suggests that there could be a preventive function in projects where teenagers would meet elderly people. More general problems, such as the association between crime and drug-taking, may be approached similarly.

Points of concern

Restorative justice will have to consider a number of problems, which cannot be examined in detail here. It should be remembered that the traditional system gives rise to many legal conundrums as well. Some of them are legal in nature, for example how to deal with attempts: if no harm was caused, is there anything to make reparation for? Is it acceptable to base the system on harm done rather than, as hitherto, on criminal intent (mens rea)? Is there a risk that when mediation was unsuccessful, the offender would face double jeopardy, being punished for the failure of the conference as well as for the offence (Warner 1994: 150-151)?

Thought will also have to be given to the ultimate sanction for non-compliance, and whether even this can be restorative rather than punitive; to dealing with the offender who shows no remorse; and to the perennial problem of mediation – imbalance between the parties, especially in cases of domestic violence and racial harassment. Ways have to be found for the maintenance of high standards of training and support for facilitators, including complaints procedures for victims or offenders who felt that the procedure was not fairly or competently carried out. Another problem will be to find appropriate and acceptable restorative responses to the most serious crimes; Mark Umbreit in Minnesota, David Doerffler in Texas, and others, have shown that restorative processes between perpetrators and the relatives of homicide victims can take place alongside the traditional system, but could the response to the most serious crimes ever be wholly restorative?

Other questions centre on the differences between the restorative and the retributive philosophies. Howard Zehr, a pioneer of both the theory and the practice of victim/offender mediation, has expressed concern that the criminal justice “industry” make take over the name and use it for un-restorative, punitive practices, with the result that the idea would be discredited (Zehr 1997). The same action, for example paying compensation or doing community service, may be experienced as reparative or punitive, depending on how it is presented; advocates of restorative justice will have to work hard to spread understanding of its benefits.

It would be possible to misapply the philosophy by using it to restore the status quo in an unjust society, and to shift the whole responsibility on to the offender without sufficient regard for the social pressures which at least partly shaped his or her actions (Sandor 1994: 159). What is the balance to be restored: public order and security, or solidarity and social justice (Walgrave 1995: 229)? Should the justice system uphold freedom for the majority with exclusion of the undeserving and feckless, or an “inclusive” society which emphasizes respect for human dignity and a sense of social responsibility, recognizing “the capacity and will of individuals to change – to improve if they are given guidance, help and encouragement; to be damaged if they are abused or humiliated” (Faulkner 1996: 5, 6). A balanced approach will recognize that there has to be a two-way process: offenders should make amends to those they have harmed, but also society should assist their reintegration, and should act on crime-reduction implications which become evident from cases brought to mediation or court. As Braithwaite (1994: 200-1) points out, social unfairness certainly exists, but the criminal justice system is itself a major part of the injustices suffered, especially by ethnic minorities, and needs reform as much as other aspects of society.

The question is not only social, however, but personal; mediation, by focusing on the process rather than the outcome, can be “transformative”: that is, it can help people to recognize each other’s humanity, and this can be more important than merely achieving a settlement (Bush and Folger 1994).

Since Braithwaite (1989) proposed the concept of “reintegrative shaming” it has attracted much controversy. According to Walgrave and Aertsen (in press) Braithwaite has said that he will use the term “restorative shaming” in future; but he has changed the uncontroversial word. There may well be different kinds of shame – Leibrich (1996), for example, distinguishes public humiliation, personal disgrace and private remorse – and good conference practice may promote the latter, which Leibrich identifies as the most influential. But even conference co-ordinators may not all keep on this side of the dividing line, and some sections of the general public are all too ready to aim for public humiliation. In England, the Labour Party (1996), then in opposition, proposed to allow courts to lift the ban on publicly naming some 16- and 17-year-olds; this was headlined in a tabloid newspaper as “Spotlight of shame for the tearaways” (Daily Mail, 21 May 1996). It is reported from Texas, USA, for example, that ex-offenders are being required to place signs on their doors with messages such as “A person released on parole after sexually molesting children lives here” (Le Soir (Brussels), 3-4 May 1997, p. 26). Ex-offenders have to live somewhere, and in a restorative society they could meet their new neighbours, who might say “We know about your past offences, and we will help you to avoid repeating them”. But the judge in Texas made it clear that he believes in the preventive effect of humiliation.

The future of restorative justice

The worst future for restorative justice would be that its vocabulary would be taken over by the retributive system, using the wrong sort of shaming, with degrading and unpleasant community service tasks, and other punitive sanctions. Or it could be inadequately funded, adopted as an appendage to the traditional system, used only for minor cases, perhaps being added to punitive sanctions rather than replacing them.

Can mediation and conferences be used routinely and yet retain their ideals? Much depends on the quality of the implementation of restorative justice methods (Walgrave 1995: 237; Wright 1995), and this in turn depends to a large extent on the avoidance of “funding starvation”, as leading researchers have pointed out (Maxwell and Morris 1996: 102, 105, 108; Morris et al. 1996: 231). Good practice depends on adequate resources to meet the participants’ expenses in attending conferences; for the services needed to enable offenders to make reparation; for the training and support of staff and lay workers; and for independent assessment. These are particularly important in the present experimental phase. It will be better to process a smaller number of cases to a higher standard than vice versa.

The more hopeful future is that restorative measures will be introduced alongside traditional ones, adequately resourced and assessed; and that, provided that the research assessment was favourable, it would be used for an increasing proportion of cases until it became the accepted response to criminal acts. Attitudes could be transformed among participants in the process and, by degrees, in society as a whole.

I am grateful to Ann Warner Roberts for comments and suggestions on the draft of this paper.

REFERENCES

Balanced and Restorative Justice Project (1995) Balanced and restorative justice for juveniles: a national strategy for juvenile justice in the 21st century. By Gordon Bazemore and Mark Umbreit. Fort Lauderdale: School of Public Administration, Florida Atlantic University; St Paul, MN: Center for Restorative Justice and Mediation, University of Minnesota.

Braithwaite, John (1994) “Thinking harder about democratising social control.” In: Christine Alder and Joy Wundersitz, eds. Family conferencing and juvenile justice: the way forward or misplaced optimism? Canberra: Australian Institute of Criminology, 1994.

Bush, R A B, and J P Folger (1994) The promise of mediation: responding to conflict through empowerment and recognition. San Francisco: Jossey-Bass.

Carroll, Milt (1994) “Implementational issues: considering the options for Victoria.” In: Christine Alder and Joy Wundersitz, eds. Family conferencing and juvenile justice: the way forward or misplaced optimism? Canberra: Australian Institute of Criminology, 1994.

Faulkner, David (1996) Darkness and light: justice, crime and management for today. London: Howard League for Penal Reform.

Grandjean, Isabelle (1993) Le vol à l’arraché: “Derrière un sac, retrouver une personne” – expériences de médiation victime/jeune délinquant menées dans le cadre des prestations éducatives et philanthropiques. Paper presented to Criminology Congress, Budapest, 1993. Charleroi, Belgium: Centre GACEP.

Home Office (1996) The victim’s charter: a statement of service standards for victims of crime. London: Home Office.

Labour Party (1996) Tackling youth crime: reforming youth justice. A consultation paper … By Jack Straw and Alun Michael. London: Labour Party.

Labour Party (1997) New Labour: because Britain deserves better. (Election manifesto.) London: Labour Party.

Launay, Gilles (1985) “”Bringing victims and offenders together: a comparison of two models.” Howard Journal, 24, 200-212.

Launay, Gilles (1987) “Victim offender conciliation.” In: B McGurk, D Thornton and M Williams, eds. Applying psychology to imprisonment: theory and practice. London: HMSO.

Launay, Gilles (1989) “Victim/Offender groups.” In: Martin Wright and Burt Galaway, eds. Mediation and criminal justice: victims, offenders and community. London: Sage.

Liberal Democrats (1997) Make the difference. (Election manifesto.) London: Liberal Democrats.

Maroochydore State High School (n.d., c. 1995) Community accountability conference. Maroochydore, NSW: the School.

Marsh, Peter, and Gillian Crow (1996) “Family group conferences in child welfare services in England and Wales.” In: Joe Hudson, Allison Morris, Gabrielle Morris and Burt Galaway. eds. Family group conferences: perspectives on policy and practice. Leichhardt, NSW, Australia: Federation Press; Monsey, NY, USA: Willow Tree Press.

Marshall, Tony, and Susan Merry (1990) Crime and accountability: victim/ offender mediation in practice. London: HMSO.

Maxwell, Gabrielle, and Allison Morris (1996) “Research on family group conferences with young offenders in New Zealand.” In: Joe Hudson, Allison Morris, Gabrielle Morris and Burt Galaway. eds. Family group conferences: perspectives on policy and practice. Leichhardt, NSW, Australia: Federation Press; Monsey, NY, USA: Willow Tree Press.

Morris, Allison, Gabrielle Maxwell, Joe Hudson and Burt Galaway (1996) “Concluding thoughts.” In: Joe Hudson, Allison Morris, Gabrielle Morris and Burt Galaway. eds. Family group conferences: perspectives on policy and practice. Leichhardt, NSW, Australia: Federation Press; Monsey, NY, USA: Willow Tree Press.

New Zealand Ministry of Justice (1995) Restorative justice: a discussion paper. Wellington, NZ: Ministry of Justice.

Pranis, Kay (1997) “From vision to action: some principles of restorative justice.” Church & Society, March/April, 32-42.

Reynolds, Teresa (1977) “The victim’s perspective.” Paper to ISTD/Mediation UK conference “Repairing the damage: restorative justice in action,” Bristol, 20 March 1997.

Sandor, Danny (1994) “The thickening blue wedge in juvenile justice.” In: Christine Alder and Joy Wundersitz, eds. Family conferencing and juvenile justice: the way forward or misplaced optimism? Canberra: Australian Institute of Criminology, 1994.

Stewart, Trish (1996) “Family group conferences with young offenders in New Zealand.” In: Joe Hudson, Allison Morris, Gabrielle Maxwell and Burt Galaway, eds. Family group conferences: perspectives on policy and practice. Leichhardt, NSW, Australia: Federation Press; Monsey, NY, USA: Willow Tree Press.

Umbreit, Mark, and Ann Warner Roberts (1996) Mediation of criminal conflict in England: an assessment of services in Coventry and Leeds. Center for Restorative Justice and Mediation, School of Social Work, University of Minnesota, 386 McNeal Hall, 1985 Buford Avenue, St Paul MN 55108, USA.

Victim Support (1995) The rights of victims of crime: a policy paper. London: VS.

Walgrave, Lode (1995) “Restorative justice for juveniles: just a technique or a fully fledged alternative?” Howard Journal, 34 (3), 228-249.

Walgrave, Lode, and Ivo Aertsen (in press) “On `reintegrative shaming’ and `restorative justice’: interchangeable, complementary or different?”

Warner, Kate (1994) “Family group conferences and the rights of the offender.” In: Christine Alder and Joy Wundersitz, eds. Family conferencing and juvenile justice: the way forward or misplaced optimism? Canberra: Australian Institute of Criminology, 1994.

Wright, Martin (1995) “Victims, mediation and criminal justice.” Criminal Law Review, March, 187-199.

Wright, Martin (1996) Justice for victims and offenders: a restorative response to crime. 2nd ed. Winchester: Waterside Press, 1996.

Wundersitz, Joy, and Sue Hetzel (1996) “Family conferencing for young offenders: the South Australian experience.” In: Joe Hudson, Allison Morris, Gabrielle Morris and Burt Galaway. eds. Family group conferences: perspectives on policy and practice. Leichhardt, NSW, Australia: Federation Press; Monsey, NY, USA: Willow Tree Press.

Zehr, Howard (1997) “Restorative justice hits the big time: but will it remain true to its vision, values?” Accord (Mennonite Central Committee Canada), 15(3), 11-12.

What victims want

Help with practical/emotional effects of

crime

To be treated sensitively and with respect

To know what’s happening in the case

To understand what’s happening in the case

To be heard and taken seriously

Public acknowledgement that wrong has

been done

To feel it is worth pursuing the case

Quick resolution of the case

To know “Why me?”

To know that the offence will not be

repeated

Some want an apology from the offender

Some want compensation

Some want retribution (most do not)

Most want to be free of responsibility for

decisions about the offender

(Reynolds, 1997)

(Items provided by V/O M and conferencing are underlined)

Restorative justice for victims

Convenient time and place of hearing;

neutral location

Criteria for selection of cases relates to

victims as well as to offenders

Opportunity to tell story in own words

Opportunity to tell offender effects of crime

Involvement in “making it right”

No involvement in punishment

Involvement of family and/or supporters if

required

Involvement to be voluntary

Safeguards for voluntary participation of victims

1. Possibility of mediation raised before offender is known

(to allow time to reflect)

2. Mediation offered after decision to caution or sentence

If mediation/conference offered before final decision in criminal justice process:

3. Offender can do community service instead of direct reparation

4. Offender can take part in victim/offender group if victim does not want dialogue

5. Sentence can be independent of result of mediation

(Mediation seen as personal, sentence as public; but unfair to offender who makes reparation? Separate reparation from mediation?)

6. At conference, victim need not be present

7. Complaints procedure

Court problems for victims and witnesses

Would have liked more information about:

court procedures

how to get to court

what to do on arrival

Insufficient consultation on date of hearing

Cases did not take place on scheduled day

Insufficient information about:

time of case

what to do in courtroom

roles of different officials in courtroom

Waiting in same area as defendant

Felt nervous, intimidated, worried or

frightened in witness box

J Raine and R Smith, The Victim/ Witness in Court Project: report of the research programme (1991)

Restorative justice for offenders

Opportunity to speak

Increased understanding

Opportunity to make things right

(Conference:) Brings family together

Assistance in changing behaviour

Safeguards for offenders

Not admit guilt, but not deny act

Access to lawyers

Supervision by court

Complaints procedure

Criteria for assessment

Victims:

Satisfaction

Attendance rate

Amount of reparation agreed/completed

Offenders:

Fairly dealt with

Family strengthened

Reparation agreed/completed

(including rehabilitative)

Availability of community support

General:

The above

Reconviction rate

Points of concern

Attempts

Harm not mens rea

Double jeopardy

Ultimate sanction

Very serious crimes

Reinforcing unjust status quo

Shame

c:rjleuvnmay

Why restorative justice needs research

6 May 2009

 Paper to conference on ‘European best practices of restorative justice in criminal procedure’, Budapest, 27-29 April 2009

ABSTRACT

Before beginning research we need to be clear what we are trying to do, namely to reduce the crimes and other harms which people inflict on each other. We can start by introducing restorative processes in schools. If crimes are committed, we have to respond, and restorative processes are increasingly being used. The basic research question is. How well are we doing? This includes not only the outcome but the structure and the process itself: how well was the process carried out, did it involve victims, offenders and members of the community ? Did the community make the arrangements needed to enable the offender to make reparation? Is support available for victims whose offenders are not caught? Are we learning from what offenders and victims tell us, so that we can reduce the societal pressures that lead to crime?

Before we consider how restorative justice tries to make the criminal justice system work better, we can take a step back to consider how restorative practices can create a society in which people are less likely to harm each other; but when it happens, we would help the victim, and look for ways to prevent further trouble.

How to reduce the crimes and other harms which people inflict on each other?

 Hungary has followed this logic, by introducing a National Strategy for Community Crime Prevention in 2003. This includes non-violent conflict resolution, enhancing small-community integration and control and other social measures (Lévay 2007-8) Criminologists have suggested many ways of reducing the pressures towards crime; most of them are part of social policy, and have little to do with criminal justice policy.

 A comprehensive policy for reducing the amount of harm which citizens cause to each other would ideally start in schools, and the Zöld Kakas Liceum1 has shown how this can be done even with students who had not been successful in other schools. Among other things they were encouraged to make their own rules; but soon they found that they had so many rules that many of them were broken. They therefore concentrated on the essential rules, and at the end of the year they summed up their achievement: ‘We’ve learned punctuality. We’ve learned to respect our fellows. We’ve learned to cooperate. We’ve learned to be serious in serious situations’ (Kerényi 2006).

Schools in Hull, in northern England, have adopted restorative practices, with striking results for improving behaviour and the school’s performance generally; there are plans to give restorative training to everyone in the city who works with children, and to make Hull into a ‘restorative city’. (IIRP 2008; Mirsky, n.d.)

 Another version of this method is ‘discipline that restores’ (DTR). The principle is that the teacher remains in charge of the framework of the student-teacher relation­ship, but respects the student by offering choices at every stage. After analysing how attempts to control through punishment can make matters worse, Roxanne Claassen, the main author, invites each new class at the beginning of the school year to agree their own ground rules and set their own targets for the year. A ‘flowchart’ of increasingly serious but non-punitive interventions is explained. When a conflict arises, the first step is a ‘constructive reminder’. The next time, the teacher will ‘actively listen’, and talk to the student. If there is a further problem, the student can choose between ‘Four options’ for dealing with it (I impose on you, we go to an arbitrator, we go to a mediator 2, we agree between ourselves); usually they choose #3 or #4. For uncooperative students there may be a spell in a ‘thinkery’, a place where another teacher helps the student to think through what happened, who was affected, and a plan for working together. If the problem is still not resolved, a ‘family conference’ is held. Only then, if necessary, the school authority structure will be used (Claassen and Claassen 2008). Methods like these have the potential to teach children respect for each other, animals, and the environment.

 Research in schools is also reported by Sherman and Strang (2007: 53-4) in a wide-ranging review of published research, reporting reduction in anti-social behaviour and increased feelings of safety among students, though not all the findings were statistically significant.

 The next step towards a restorative society is to create a network of community mediation centres, as in Finland3, Norway, and parts of the United Kingdom. They can deal with civil disputes and those which can be privately prosecuted in continental legal systems; they could also extend their work to include victim-offender mediation.

How to respond when crimes are committed?

 The traditional justice system, as we know, is based on confirming that a crime was committed; that the accused is guilty of committing it; and imposing a punishment (or sometimes another sanction). This gives the accused an incentive to deny or minimize what he or she has done. Although restorative processes are only used when the accused accepts responsibility, it is claimed that they make offenders more likely to do so. They ask different questions:

 What happened?

  • Who was affected?

  • What is needed to put it right?

  • Who should do it?

  • How can members of the community be involved?

  • What would make it less likely to happen again?

 The task of fundamental research is to ask whether these are good questions; practical research asks whether they were asked in the right way and led to the repair of the harm.

How well are we doing?

Just as , when we were considering how to respond to crime, we began by considering how to prevent it, when we now consider the response itself, we begin by considering how the response is designed. So we have to ask, What are the qualities of a good justice system?’ We do not go straight to the outcome; we look first at the structure and the process. In this context, research could be compared to an audit.

Structure

Researchers, then, should be involved in the design of the system (in German this is called Begleitforschung, accompanying research), although this is not always possible for political reasons: it can be difficult to explain to senior lawyers and politicians the relationship of restorative justice to criminal justice. Mediation in criminal cases has only recently been introduced in Hungary (Act CXXIII of 2006, quoted by Lévay 2007-8), so there is still time to influence the direction in which it develops. Researchers may begin by looking at the preventive policies mentioned above, and how widely restorative practices are used in schools and communities. As regards criminal cases, if it is accepted that restorative justice should include participation of the community, as supporters of victims and offenders, as volunteer mediators, and managers of NGOs, researchers with their knowledge of the theory and practice in other countries can advise on legislation that enables this to happen; evaluate how well it is working, both numerically and qualitatively; and recommend changes later if necessary. They can assess whether there is full use of volunteers, and whether these represent all groups of society, including ethnic minorities: for example, how many Muslim mediators are there in the UK, how many Roma mediators in Hungary? Some programmes have used police officers as mediators; research has found that some do it very well, and the experience can broaden the outlook of the officers, but there are problems such as under-preparation, coerced participation and lapses in neutrality, ‘particularly in the case of the more experienced facilitators’ (Hoyle et al. 2002: 66).

 If we accept the principle of minimum state intervention (‘as much state as necessary, but as little state as possible’), researchers should look at the extent to which cases which do not need the full power of the state are ‘diverted’ (kept out of the system); for example, do prosecutors refer cases to be assessed for mediation rather than prosecution? Can people go straight to mediation, for civil or privately prosecutable cases? It is helpful if the legislation is designed so as to make this possible.

 The response to crime is a matter of public concern, and researchers would want to see what arrangements are made for public accountability. Is an annual report published? Are some resources of staff time allocated to explaining the restorative concept .to the public and to professionals?

Process

Then researchers can see whether the process is being operated according to restorative principles. This is because in restorative justice the process is important, as well as the outcome. So researchers will look at how well it was carried out, and whether it involved victims, offenders and members of the community? Since restorative justice is concerned about victims as well as offenders, they will also ask if support is available for victims whose offenders are not caught? In Hungary, for example, this would mean examining the operation of the Act CXXXV of 2005 on Victim support and state compensation (Lévay 2007-8), but many victims need emotional support as much as, or more than, compensation, so this should also be part of a restorative system.

 Participation by victims will never reach 100 per cent, since it is a voluntary process, but if it is well explained and becomes well known, the level should rise. There is a presumption that the take-up will be higher if the process is explained to victims (and offenders) by mediators, who understand the process well. The way in which they are contacted also makes a difference: by letter, phone or visit. Mediators may also discuss with victims whether they would prefer one-to-one mediation, or indirect mediation, or a ‘conference’. One reason for low attendance can be that victims are not consulted about the time when the meeting will be held. Research in the early days of youth offender panels in England found that only 22 per cent of victims attended meetings (Crawford and Newburn 2003: 185), although (partly as a result of this research) efforts are being made to improve this.

 Research into the process will include questions such as:

% of victims contacted

% of victims agreeing to mediation

% of cases enabling victim and offender to meet in a mediation/conference

 There has been criticism of the conferencing process, especially for young offenders, on the grounds that they may be intimidated by ‘a roomful of adults’. With this in mind the English legislation allows a young person to be accompanied by an adult supporter (invited by the young person with the panel’s agreement) and anyone else whom the panel considers to be capable of having a good influence on the offender, in addition to parents or guardians. The early research found that only in 15 per cent of panels was the young person accompanied by more than one adult (Crawford and Newburn 2003: 122).

 The supporters need not be lawyers – some would say that lawyers should not take part in the mediation, because the restorative meeting is not a trial. It does not take place unless the accused has already accepted some responsibility for the harm caused. Advocates of restorative justice argue that the prospect of a restorative process, rather than a punitive one, encourages the admission of guilt; the presumption of innocence until guilt is proven ‘means no accountability, and it sets the conditions for re-offending’ (Sawatsky 2009: 120). It is common for defending lawyers to advise their clients to plead ‘Not guilty’ and say nothing, in the hope that in some way, perhaps a procedural technicality, they can escape punishment. The accused is of course entitled to legal advice, under Article 6 of the European Convention on Human Rights (Right to a fair trial), but the lawyer should be aware of restorative principles. When the outcome is a restorative one, the accused has an incentive to admit his or her involvement in causing harm, and ‘wipe the slate clean’. It will be interesting to see if researchers can find a way to explore this hypothesis. It is supported by the experience at Hollow Water, Manitoba, Canada where considerable sexual abuse was admitted, in two cases without a victim even coming forward (Sawatsky 2009: ch. 4). Of 107 cases, only 2 were found to have re-offended (p. 99). Further evidence is provided by research in England, where the use of restorative justice doubled (or more) the offences brought to justice as diversion from criminal justice. In an experiment in Brooklyn, a crime was twice as likely to be brought to justice where restorative justice was used, as compared with the court process (Sherman and Strang 2007: 4, 82-3)

 Any good system needs some form of follow-up and feedback, to assess its performance. Research is an investigation in depth, which can usually only be carried out every few years; monitoring is routine record-keeping, including asking the participants how well they thought the process was conducted. In both cases the results should be given to the mediators, and included in the training of future mediators. It may be possible to establish a practice review group, including practitioners, administrators and researchers, to consider issues that arise in day-to-day practice and consider whether changes are needed. These may be local arrangements, or may be passed to the national organization which supervises restorative work. It is suggested by Sherman and Strang that this organization should be an official ‘Restorative Justice Board’ (2007: 88), but there is also a case for an organization that is independent of government and can even press the government to make changes when necessary.

 Researchers will also want to look at the training of mediators, both for their skills in listening and leading the meeting, but also to ensure that they learn to recognise their own prejudices and treat everyone with respect, including ethnic minorities. They will also want to consider whether arrangements are in place to make sure that the process is conducted fairly. In addition to the basic skills, such as active listening, and condemning the act but not the person, mediators need to learn what to avoid, such as dominating the discussion and imposing opinions. There are also more complex issues: has the facilitator used subtle techniques to persuade the victim and offender to follow a ‘script’ of forgiving and apologising, which may not be what they really want (Zernova 2007)? Or is that the correct thing for the facilitator to do, in the interests of individual well-being and social harmony?

 Even a restorative process, however, can be conducted well or badly; in addition to the routine monitoring, researchers will want to discover whether there is a grievance procedure (a restorative one, of course!), and whether the principles of restorative justice are correctly explained to the participants – otherwise they may mistake bad practice for normal practice, and not realize that they have grounds for complaint.

 Research by Lawrence Sherman and Heather Strang (2007: 44-5) examines questions of this kind, and finds that restorative justice in general, and the programmes which they studied in particular, comply with legal principles and those of the United Nations (2006: annex II). Other standards which researchers may want to use as a basis for assessment include those of the Council of Europe (1999 ) and CEPEJ (European Commission for the Efficiency of Justice) (2007)

 Finally, a detail which may be unexpected: researchers may want to ask whether refreshments are offered to the participants after mediation? In some models of mediation and conferencing, this is normal practice; it may for example fill the time while an agreement is being written out, and sharing food and drink is a profound way of symbolizing reconciliation.

Outcome :

Having looked at the structure and the process, let us now turn to the outcome. At this point the research becomes more numerical. But with these numerical data, and the ones I mentioned earlier, it is important to remember the dangers. Firstly, numerical research, and randomized controlled trials (RCTs) in particular, are not necessarily the best method for all purposes. They need large numbers in order to achieve statistical significance, and therefore it is often not practicable to explore in depth the quality of the services being studied. Was it good restorative justice, indeed was it restorative at all? With smaller numbers, statistically conclusive findings are less likely to be achieved, leading to disappointment all round. There is a tendency to focus on a primary outcome of interest to the funder, which is often the reconviction rate. Aidan Wilcox and other researchers (2005) have pointed to several problems. Drop-out rates can be as high as 33 to 68 per cent, and there is then a danger that the remaining cases are no longer representative. RCTs originated in medical research, but in social research the important element of double-blind is not possible.

 Offenders may have received other treatments in addition to the victim-offender meeting, so the latter may not be responsible for the ‘success’. (Conversely, Wilcox and colleagues might have added, if additional measures which the offender needs are not provided, this lack rather than the restorative justice process may be responsible if he or she re-offends.) As for victims, their satisfaction may be simply because someone has listened to them, rather than resulting from the restorative meeting itself. (Wilcoxet al. 2005). In one case, when the random allocation method was used, satisfaction was lowest among the victims who were promised restorative justice but were then allocated to the control group and consequently did not receive it (Sherman and Strang 2007: 63-4).

 Qualitative research, despite its necessarily smaller samples, can complement the findings of RCTs. Action research or ‘accompanying research’ has already been mentioned., and was used by Carolyn Hoyle and colleagues (2002). It does not merely tell us about ‘restorative justice’ in general, but indicates whether this restorative programme is being well conducted; and it tells us not after the project but during it, and can (as these researchers did) propose improvements while it is still running. The relatively small numbers of such studies may be criticized; but research such as that of Hoyle and colleagues, and Zernova (2007), can at least draw attention to issues, suggesting that other projects should be on the look-out for them. If they turn out to be widespread, changes may need to be made in the practice – and even the theory – of restorative justice.

 Secondly, there can be undesirable side-effects of basing policy on statistics.. This has been a particular problem in Britain. People do things to make the statistics look better, which do not necessarily make people feel better. One example among many: the efficiency of the police is judged by the number of arrests they make, so they arrest people who are easy to arrest, or people for whom a warning would be quite sufficient. Some more serious offenders, whose cases are more difficult to investigate, remain free; others are not referred to mediation, although their cases might be suitable. There are other examples of the harmful effects of statistical targets, from the National Health Service and schools.

 A question that will naturally be asked is the percentage of agreements fulfilled fully or partly. An interesting finding is that an agreement to make reparation may be at least as effective as enforcement by the threat of punishment (Sherman and Strang 2007: 58-9). However, in those cases where reparation is not completed, some form of enforcement will be necessary, and researchers will want to see whether it is carried out in a restorative way, and how effective it is.

 Reparation

Reparation can take different forms. Some victims want no more than an apology, or ask that the offender should do some community work; for others the priority is that he or she should not offend again, and should undertake training, education, therapy, anger management, or other programmes that will help to avoid re-offending. Therefore researchers should ask whether there were adequate opportunities for community work, perhaps offered by NGOs, and appropriate rehabilitative programmes. If these are not available, and there is a high rate of re-offending, it cannot be said that ‘restorative justice’ has failed – it is the supporting services that were not provided. In one English prison a mediation was carried out between a burglar and three young women who shared a flat which he had broken into. The session was observed by a former Chief Inspector of Prisons, who was impressed. It went well, they expressed their feelings, and the offender told them how and why he became a burglar. He had had a typically disadvantaged upbringing, had missed school and had not learnt to read and write, he had other problems including drug addiction. He agreed to attend programmes including literacy classes and addiction therapy. Afterwards the former Chief Inspector spoke to the prison governor, and asked if those programmes were available in the prison; he was shocked to hear that none of them were (Lord Ramsbotham, personal communication). If that young man fails to keep his agreements, who is responsible?

 Researchers may also ask whether young people who have made reparation by community service receive thanks and perhaps a certificate; this symbolizes the fact that they have not been punished as outcasts, but have made a contribution to the community and are part of it. Even better, they may work alongside volunteers who are not offenders, and a plaque can be installed giving them credit for their work. Programmes in prisons, for example in England and Hungary4, show ways of developing the good qualities of offenders. The current practice in England of making offenders work in public places, stigmatized by wearing distinctive coloured jackets, is completely contrary to this principle.

 A common criterion is ‘victim satisfaction’, which in almost all research is found to be very high, and significantly higher than courts when this comparison is made. Victims who experience restorative justice are less likely to suffer post-traumatic stress, and return to work sooner. But research has its pitfalls: in one study there were so many restrictions on cases that could be included in the programme that the numbers were insufficient (Sherman and Strang 2007: 83).

 When people, especially politicians, ask ‘Does restorative justice “work”?’ they commonly mean ‘Does it reduce reconvictions?’ Sherman and Strang found (2007: 68-71, 88) that reconvictions were often reduced, not always significantly, but were almost never increased. In the controversial field of violence within families, they cite Canadian research finding a reduction by a half in emergency visits to the home, compared with an increase of 50 per cent in comparison families (citing Pennell and Burford 2000).

 A study of three groups of programmes in different parts of England looked at the question of reconvictions. Results varied, but in total offenders who participated in restorative justice were reconvicted statistically significantly fewer times than those in the control group. It may be relevant that the programme which did best was the one (in Northumbria) which used conferencing rather than one-to-one mediation. (Shapland et al.: 66-7)

 Restorative justice can save costs in courts, in prisons, and in health care for victims, according to Sherman and Strang (2007: 86). They could have added that at least some of the savings could be used to provide more restorative justice and other non-custodial measures, if there were a simple method of transferring the funds. The research by Shapland et al. (2008: 67) found significantly lower costs in one group of programmes, although in the other two the difference was not statistically significant.

CONCLUSIONS

This paper began by referring to the aim of reducing crime, for which social policy is more important than criminal policy. But can restorative justice contribute to it? When many offenders tell their stories, there are bound to be indications of societal pressures that lead to crime. This is not to deny that individuals have choices about resisting those pressures; but even a healthy plant cannot grow well in poor soil. New Zealand, once again, has shown the way: some facilitators, when they notice clusters of cases from a particular geographic location or school, gather a number of people from social services, police and so on to consider whether there can be a plan to tackle the pressures that affect they young people. Similarly in South Africa, the Zwelethemba programme links the ‘peacemaking’ with ‘peacebuilding’, and includes a system for transferring funds to it (Sawatsky 2009: 59). This does not address major problems, including inadequate funding of essential services such as education, or inequalities in society, but it is a step in the right direction. The involvement of volunteers in the process helps to spread public awareness of social needs. If similar schemes can be introduced in other places, they will need to be researched to assess their effects.

 I have tried to go back to first principles, and suggested that we should begin by thinking about prevention. If young people learn to resolve their differences and misunderstandings in a respectful way, we shall be building a society in which people respect each other’s humanity. Research on such programmes can show how well it is working and how it can be improved, and can inform others so that the pioneering examples can be followed. Similarly, the extent and quality of community mediation can be assessed.

 Some of these proposals are based on a particular view of restorative justice, believing in the value of involving members of the community, and where possible resolving conflicts by agreement, without the imposition of authority

 Of course some people will still harm each other, and the restorative movement proposes that we should respond with a different set of questions, based on putting right the harm and looking for ways to avoid more of it happening in the future. This response needs research into its structure, its process and its outcome, and I have suggested that researchers should be involved at the design stage, to assist the legislators (and to avoid excessively detailed legislation). I suggested some of the points which researchers could consider.

 May I end by stressing three particular points which researchers should look for: (1) when offenders agree to make reparation, are arrangements in place to enable them to do so? (2) Are the circumstances regularly discussed, to see how pressures towards crime can be reduced? (3) Can a system be introduced by which money saved on prisons could be transferred to non-custodial ways of dealing with offenders? If research is focused on these questions it will help us to achieve more effective restorative justice and to build a more restorative society.

REFERENCES

 CEPEJ (European Commission for the Efficiency of Justice) (2007) , Draft guidelines for a better implementation of the existing recommendation concerning mediation in penal matters. Strasbourg: CEPEJ.

Claassen, R and R Claassen (2008) .Discipline that restores: strategies to create respect, cooperation, and responsibility in the classroom. South Carolina: BookSurge Publishing. (www.disciplinethatrestores.org )

Council of Europe. Committee of Ministers. (1999) Recommendation No. R (99) 19 … to member states concerning mediation in penal matters. Reprinted in I Aertsen et al., 2004..Rebuilding community connections: mediation and restorative justice in Europe. Strasbourg: Council of Europe.

Crawford, A, and T Newburn (2003) Youth offending and restorative justice: implementing reform in youth justice. Cullompton: Willan Publishing.

Hoyle, C, R Young and R Hill (2002) Proceed with caution: an evaluation of the Thames Valley Police initiative in restorative cautioning. York: York Publishing Services.

IIRP (International Institute for Restorative Practices), Hull Centre for Restorative Practices (2008) The City of Hull: Riverside Project.

Kerényi, M (2006) ‘About the Jumpstart Programme of the Zöld Kakas Líceum.’ Paper from “Improving Citizenship & Restoring Community,” 10th International Institute for Restorative Practices World Conference, Budapest. http://www.safersanerschools.org/library/hu07/hu07_Kerenyi.html (downloaded 11.4.2009

Lévay, M (2007-8) ‘Development of criminal policy in Hungary during the first decade of the 21st century.’ Archiwum Kryminologii (Warsaw) XXIX-XXX, 543-554.

Mirsky, L (n.d.) ‘Hull, UK: toward a restorative city.’

http://www.safersanerschools.org/library/hull09.html#top (downloaded 11.4.2009)

Pennell, J, and G Burford (2000) ‘Family group decision making: protecting women and children.’ Child Welfare 79(2), March/April.

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: Jessica Kingsley Publishers.

Shapland, J, et al (2008) Does restorative justice affect reconviction? The fourth report from the evaluation of three schemes. (Ministry of Justice Research Series 10/08). www.justice.gov.uk/publications/research.htm

Sherman, L W, and H Strang (2007) Restorative justice: the evidence. London: Smith Institute. www.smith-institute.org.uk

Wilcox, A, with C Hoyle and R Young (2005) ‘Are randomised controlled trials really the “gold standard” in restorative justice research?’ British Journal of Community Justice, 3(2), 39-49.

Zernova, M (2007) Restorative justice: ideals and realities. Aldershot: Ashgate.

martinw@phonecoop.coop

conference papers/budapest

1 Described By Borbála Ivany in a workshop at this conference.

2 Terms such as ‘mediator’ and ‘facilitator’ will be used interchangeably in this paper.

3 described by Aarne Kinnunen in a workshop at this conference.

4 described at this conference in workshops by Andy Hudson and Melinda Gyökös.

The rights and needs of victims in the criminal justice process

 Paper to conference on ‘Restorative justice: criminal justice for victims?’, Amsterdam, The Netherlands, 1 December 2000. Published in: H. Kaptein and M Malsch, eds. Crime, victims and justice: essays on principles and practice. Aldershot: Ashgate, 2004.

The social context of justice

Let us begin by thinking about the whole picture: not only restorative justice, but the purpose of the criminal law, which I assume to be to create a just and stable society. I will not say much about the problems of conventional justice, which we all know, or the theory of restorative justice; I will concentrate on how it could work in practice, and I hope that the theory will be reflected by the practice.

 

Returning to the ideal of the just and stable society, I believe that this would be based as much as possible on consent and as little as possible on coercion. I would summarize this as a society which. aims to persuade people to stay within acceptable boundaries without the use of repression. This would be done partly by rewarding people, not only in a material way but through the approval of others, and also by enabling themto survive without behaving in unacceptable ways. Only then would we consider what to do when people went outside those boundaries; and the principle of maximum consent, minimum coercion, would apply here also.

I will begin by looking at some of the words we use, and by considering how restorative justice can be used within the context of conventional criminal justice. Then we can consider a more radical vision of how a society could respond when one person harms another. Do we need to use the criminal law at all? If so, how would it work restoratively, with especial reference to the victim’s point of view?. This includes the process itself, the administrative structure, and the way in which it is integrated into the system. I will refer to some frequently asked questions about restorative justice; and finally, returning to society as a whole, we will consider how a restorative approach could transform it.

Terms

First, some of the words. ‘Crime’ is defined in English as behaviour which is against the law and can be punished; in other languages this way of looking at things is built into the words themselves: the Dutch strafrecht, German Strafrecht, French droit pénal, for example. But this policy has been described as het repressief model, and punishment is not necessarily the response to law-breaking, as we shall see. The Norwegian criminologist Nils Christie (1982) has reminded us that punishment is the infliction of pain, and the word ‘deterrent’ has the same root as ‘terror’ (and the same is true in Dutch: avschrikkend and schrik); do we really want to live in a society ruled by repression and fear?

 

The simple assumption that offenders should be punished is extremely problematic: it is based on the assumptions that punishment is (a) effective and (b) ethical, both of which are, to say the least, questionable (Wright 1999). It may be more helpful to think of the action as not necessarily punishable, but ‘criminal’, from the Latin crimen, fault or accusation; it is also an action which causes ‘harm’. Even if we remove the link to punishment, it is probably useful to have a law which lists the main ways in which people harm each other, as a declaration by society that they are not acceptable. To question the usefulness of punishment does not mean that there is no response to crime, but we can use a more neutral word such as a ‘sanction’ or ‘measure’ (maatregel).

 

Restorative justice’ takes a problem-solving approach: an individual (or the community) has been harmed, what is the best way of resolving the event in the best interests of those who are affected by it? It is based on the premiss that this question should be resolved, if possible, by the victim and others affected by the harm, and by the person who caused it. ‘Mediation’ and ‘conferencing’ are different methods of arranging for this resolution to take place, and will be described below; so will the concept of ‘reparation’. ‘Mediator’ and ‘facilitator’ will be used interchangeably.

Restorative justice in the criminal justice system

What should we do when one person harms another? The criminal justice process has not treated victims well. They are kept waiting, without adequate information, and the procedure is not explained to them. Sometimes they must endure distressing questioning by lawyers. Although efforts are being made to improve this situation, for example through the Vaillant guidelines on the treatment of victims in 1987, the Terwee guidelines of 1993 on referral to victim assistance (Aanwijzing Slachtofferzorg), and the Victims charter of 1990 and 1996 in Britain, the process is still centred on the offender. Restorative justice takes the victim as its starting point. Its basic principle is to offer help to the person who has been harmed; dealing with the offender comes later. This is how we respond after an accident: first we help the casualties, then we look for the causes, and only then do we ask who was to blame (Wright 1977).

 

How does restorative justice work, from the victim’s point of view? Every case is different, but I will describe one which shows some of the possibilities. This one took place within the framework of the existing law: the offender was convicted and sentenced before restorative justice was used.

Tom, aged 18, with no driving licence, was driving a stolen car and knocked down a six-year-old girl, Sally. She was in intensive care and for a short time her life was in danger, but she recovered; however, she suffered from nightmares and a phobia about being in the bath, because it made her think of being underneath the car.

 

Tom, who came from a difficult background, was sentenced to four months in a young offenders institution, and a mediation worker visited him there. He was willing to apologize, though not enthusiastic. The worker then visited Sally and her parents, who at first were distressed and did not want to listen, but became interested, and although the mother did not want to meet Tom, the father and Sally agreed to do so. There had been a suggestion that he might offer her a teddy bear as a present, and the parents agreed that this would be appropriate.

 

Tom was terrified before the meeting, but made his apology (in very few words) and offered the teddy bear. Sally left her father, walked across to take it, and gave Tom a hug. He was very moved by this, and so were the mediators. The father asked to speak to him alone; the mediators said that they must be present. He described his feelings when he was called from his work to the hospital, and how he was so angry that he might have killed Tom if he had met him then. But he recognized that Tom had been brave in coming to the meeting, and said that it had helped him to get over his anger. Sally had no more nightmares, and was able to bathe without being afraid.

 

Tom felt pleased at having taken part. But he was later arrested for stealing another car.

This story illustrates several points relating to victim/offender mediation. It is important to prepare people to take part so that they know what mediation would be like, and do not have unrealistic expectations; and they need time to make up their minds. Most workers feel that it is best to contact the offender first, so that the victim does not have the stress of making a decision when there is a possibility that the offender will refuse to take part, or that a meeting will be considered inappropriate. If this is done, it can help the victims to let go of their anger, which is helpful to them as well as to the offender.

Also, its success can be measured by its effect on the victim, not only by whether it prevents the offender from re-offending. In this case, it is worth noting that the young offenders institution also did not prevent re-offending; such institutions can be terrible places, and it is even possible that if the mediation had taken place instead of the custodial sentence, he might not have committed a further offence. There are also questions to be asked about whether, after the mediation, Tom received the help he needed to cope with the problems in his own life. In theory mediation results in a kind of contract between the victim and the offender, but in reality the community is also a party to it, so that if all does not go well, we should ask whether individuals and agencies, relatives, employers and social services, have given all necessary support. Perhaps they, as well as the offender, have not kept their contract.

Some of what I shall describe is already happening; it will be concerned with practical details, but I shall try to give it a conceptual framework, and in some cases a different emphasis; for example, I will suggest that the process of mediation can be more important to victims thant receiving some money as compensation. As you know, these forms of conflict resolution are already being introduced in the Netherlands. As I understand it, the only one which is used everywhere is settlement of claims by the public prosecution department (schaderegeling door de parketten), but in some places there is also community mediation (buurtbemiddeling in six municipalities1 and Justitie in de Buurt2), settlement of disputes in the public prosecution department (conflictregeling door de parketten3), and reparative mediation (herstelbemiddeling4) to assist after sentence in coming to terms with the pain on the part of the victim and the guilt on the part of the perpetrator in serious criminal cases, including some where death ensued (Ministerie van Justitie 2000). In Austria, Belgium, France, Germany, Poland, the United Kingdom and other European countries there is a variety of initiatives, and a European Forum for Victim/Offender Mediation and Restorative Justice has been formed to promote an exchange of ideas, experience and good practice. All thesre are encouraging signs, but there is an important warning: restorative justice must be done well if it is to benefit victims, offenders and the community, and win public and political support. Well planned projects with adequate resources and evaluation will show how the idea can work, as a basis for extending it through the country; otherwise it will not be given a fair trial and the opportunity will be lost.

A radical vision

Harm: a civilized response

Do we need a criminal law at all? Radbruch said that we should only try to create a better criminal law until we can find something better than criminal law. The Dutch criminal lawyer Louk Hulsman has pointed out that often the same action can be treated as criminal or as a civil wrong (a ‘tort’ in the English legal language which we imported from France nine hundred years ago). Like his Norwegian colleague Nils Christie (1982), he sees punishment as a barbaric way for a state to treat its citizens; according to him the three greatest historical causes of human suffering have been famine and pestilence, war, and criminal justice. Most crimes are also civil wrongs, and in some countries the criminal process is accompanied by a civil one. This can also be enforced, but in a different way, by civil injunctions and officers of the court. So why, Hulsman asks, cannot the whole process be ‘civilized’, in both senses of the word?

This is already happening where victims and offenders know each other. The ideal, of course, is to use mediation at an early stage to prevent conflict from getting worse, but if that has not been done, some disputes between neighbours or workmates lead to an act of violence which can be classified as a crime. Possibly some private accusation offences (klachtdelicten) such as insults would fall into this category. It may be more helpful to resolve the dispute than to treat it as a crime. Consider this case:

Mr Williams was annoyed at the way his neighbour Mr Johnson parked his car. Mr Johnson answered him rudely, and complained about the noise Mr Williams’s children made. The relationship got worse, and Mr Williams attacked Mr Johnson. Quite serious crimes can have such trivial origins. Mr Johnson could accuse Mr Williams of assault. But who is the victim and who is the offender? If Mr Williams pleaded self-defence or provocation, and the court dismissed the case because it considered that both were in the wrong, the court’s time would have been wasted and the two people’s relationship would not get better. More important, if Mr Williams was found guilty, so that Mr Johnson’s action resulted in Mr Williams receiving a criminal conviction, the intervention of the criminal justice system would have made the relationship worse than before. In fact Mr Johnson did go to the police; they suggested that it would make more sense not to treat the incident as a crime at all, and that he should go instead to the community mediation service. A mediation was arranged, with trained volunteer mediators, and they were both able to tell each other details of their lives which the other person had not known (and which would not have been regarded as relevant in a court of law); this helped them to agree how they will behave towards each other in future.

 

This is also an example of another feature of restorative justice: to involve ordinary members of the community as much as possible, as facilitators.

Crime: a restorative response

Supposing however that the incident is classified as a crime, how can it be dealt with in a restorative way? We can consider three main situations: where someone has become a victim but the offender is not known; where victim and offender are known and are willing to take part in a restorative process; and where, for various reasons, mediation is not possible.

Crimes committed by a stranger who is not detected

These are some of the commonest reported crimes. This is where assistance to victims fits in to the restorative process, and it is already well developed in the Netherlands, the United Kingdom and elsewhere. In countries where victim assistance is provided by volunteers, this is another example of participation by the community, and helps to implement the principle: As much State as necessary, but as little State as possible. Some victims, if they cannot meet ‘their’ offender, welcome the chance to meet groups of other offenders and victims who have been involved in the same type of crime.

If victims need more than a friendly listener, for example a counsellor or therapist, volunteers are trained to refer them to professional services, provided by the community through its formal structures, local and national government. For physical injuries, either they should be cared for by the national health service, in countries which have one, or they should receive the money to pay for medical attention; in the United Kingdom many victims also receive compensation for their pain and suffering. The maximum award, for the most serious brain damage, is £250,000, with the possibility of additional compensation for loss of earnings or special expenses. In New Zealand compensation by the state for victims of crime is ‘civilized’: it is included with the system for accident compensation, of which it is only a very small fraction, compared with the other injuries and traumas which people may suffer, and this is another point made by Louk Hulsman.

Victim assistance and state compensation are restorative, because they help to repair the consequences of the crime; but they are not fully restorative, because they do not involve the offender..

Crimes committed by a stranger, where a suspect is found.

As before, the victim’s needs, and injuries if any, should be attended to first. Since the offender is known, it is only right that he or she should be held responsible – but how? This is one of the ideas at the centre of restorative justice. It aims to address some of the major weaknesses of conventional criminal justice, for example that the victim is allowed no proper role in the process; that offenders, although nominally at the centre of the process, also have no active part in it because they have lawyers to speak for them; and that because the system is mainly based on punishment, offenders naturally wish to avoid it, and their lawyers try to deny, minimize or even justify the harm which the offender did to the victim. Prosecutors also take part in this, in Anglo-Saxon countries at least: in the process known as plea-bargaining, they drop a more serious charge if the offender will admit a less serious one. This saves the court’s time. For example, the offender may have committed a robbery, which is theft with violence; but if the offender admits the theft, the prosecutor may forget the violence. But the victim does not forget it.

What does restorative justice offer instead? It offers the victim and the offender the opportunity to speak for themselves under the guidance of a mediator (or ‘facilitator’), and, if they wish, to speak to each other in less formal surroundings than a court room. (If either of them does not want to meet the other, they can communicate indirectly.) This is more than a negotiation about compensation. Although they did not know each other before, the crime has created a kind of conflict between them, and this process enables them to resolve it. The victim can tell the offender how much the crime has affected him or her; often the offender had not thought about this, or had ‘neutralized’ it by telling himself that the victim could afford the loss, or was covered by insurance.

For this reason the method is most suitable for cases where the crime has had a serious effect on the victim; but there has been a tendency to use it only for minor cases. What do victims want from the process? First of all, they often find the process itself helpful. They want to understand why this person harmed them, whether there was a reason why they were chosen as the target, and whether they are likely to be victimized again. Research has suggested that telling the offender about the effects, and asking questions which only the offender can answer, is more important for many victims than obtaining money as compensation (Umbreit and Williams 1996, Tables E-1 to E-4: of the victims who participated in mediation, the percentages who stressed the importance of telling the offender the impact of the crime (90 per cent), of receiving answers (80 per cent) and of receiving an apology (73 per cent) were greater than the percentage who attached importance to restitution (65 per cent)).

At the beginning victims are sometimes still angry and want compensation from the offender, for example the full value of the things that were stolen; but after getting to know the offender and his background, the money often seems less important. They do however want the offender to do something to show that he or she is sorry; one woman wanted the young man who had robbed her to do some work for people less fortunate than himself. It was arranged that he should work on a project teaching disabled children to ride. Another common reaction is to want the offender to do something to make it less likely that he will offend again; for example to attend school, undertake training, go to live with relatives, tackle abuse of alcohol or drugs. These are things which have previously been labelled as ‘rehabilitation’, and it sometimes seemed that more was being done for the offender than for the victim; but in restorative justice the offender is doing it, not having it done to him, and he is doing it for the sake of the victim as well as himself. So in this context all these activities can be counted as ‘reparation’.

What does this offer to the offender? Many offenders are sorry for what they have done, and welcome the chance to say so, and to offer some explanation of their behaviour. Some show no remorse immediately, but change their attitude after they have met their victim.

This is how restorative justice can work; but it cannot be fully applied in all circumstances.

Where mediation cannot take place, or is unsuccessful

If the victim or the offender does not want to take part in victim/offender mediation, the case will have to go to court. It is important that the victim should not feel burdened, or even threatened, by having the responsibility of making this decision. It should therefore be possible for conferencing to proceed without the victim, and for victim/offender mediation to be replaced by a ‘victim awareness’ session or a ‘positive experience’ (positieve ervaring) as in the Herstelbemiddeling project in The Hague. If the offender is willing but the mediation or conference cannot proceed because there is no identifiable victim or for some other reason, it would not be fair if he or she would receive a more severe punishment In this case the offender should have the possibility of showing that he was sorry by ‘giving something back’ in the form of service to the community.

 

There will also be some cases where the facilitator does not consider that both parties would benefit, or where mediation was unsuccessful; and there is a minority of accused persons who deny the act with which they are charged. Such cases will also have to be dealt with by a court. It would be expected, however, that any sanctions imposed by courts would be restorative ones, such as compensation (if the victim wishes to receive it), or community service, or reparation in the sense described above.

Models, structures, and integration into the system

There are three policy decisions which a country will have to make when it introduces restorative justice: what model(s) of mediation or conferencing to use; who will provide the service; and what will be its relationship with the criminal justice system.

Models

The details of the victim/offender mediation process vary; I will emphasize the victim’s point of view, because some projects which use the term ‘restorative justice’ have treated it more as a way of dealing with offenders, thinking of reparation mainly in terms of an amount of money or a number of hours’ work. It is important also to look at the process, step by step, to make sure that it is ‘victim-friendly’.

 

Some people talk of different models of mediation; I suggest that it may be more helpful to think of them as points on a spectrum. At first the victim and offender are visited. If they decide to go ahead, they may exchange messages or letters, and nothing more. (This stage is referred to either as visiting, or as indirect victim/ offender mediation.) Or they may then agree to meet one-to-one, perhaps with parents or other supporters present (direct mediation). This can be taken a stage further by inviting the offender’s extended family and other significant people, and the victim can bring their family or other supporters as well (conference). (Notice how the words ‘mediation’ and ‘conference’ emphasize the process, rather than the outcome.)

 

There are also different styles for running conferences. In a ‘community conference’, the discussion is mainly about the way in which the victim and the offender resolve the situation, and everyone is present all the time; but where there are problems within the young person’s family, which do not concern the victim, a ‘family group conference’ may be more suitable, in which at one stage of the process the offender and his or her family have ‘private time’ with no one else present; then everyone comes together again and the offender and family explain their ‘action plan’. This can be discussed further if the victim does not agree.

Structures

The way a victim/offender mediation service looks after the needs of victims, and the way in which it is perceived, depend not only on its processes, which we have just been looking at, but on its administrative structure. The model which encourages the greatest community involvement is a non-governmental organization, whose management includes representatives of the statutory agencies (police, prosecutors, probation service, and others), supported by legislation to ensure that it is recognized as an essential part of the system. If one of these agencies alone runs the service, it is likely not to be perceived as independent – and is vulnerable to changes of policy, as the service in West Yorkshire, England, has found: a new chief probation officer has greatly reduced mediation work in order to transfer resources to other activities. But it can also be provided by a single state agency created for the purpose (such as the Youth Justice Conferencing Directorate in New South Wales), or a multi-agency group. Whichever is used, it is important that the management structure includes a representative of a victim assistance organization.

 

Another question is Who should be the mediators? Here again there is an opportunity for involvement of the community, as some projects in the Netherlands have found: with professional supervision and support, volunteers can be good mediators. In some places they are paid a small fee for each session, but they are still members of the general community. In other countries a new profession of mediator is growing up; this has advantages, but it limits the number of mediations that can be undertaken, because the state is never likely to employ as many as are needed. Members of existing agencies can be trained as mediators, although there is a risk that they may not be perceived as neutral. Whichever method is used, it is essential that they have specific training in mediation, paying especial attention to the importance of considering the needs of both victims and offenders. The training of social workers, police and probation officers is not the same as the training of mediators; although it has some similarities, in other ways it has a very different approach. Other staff need to be trained to organize reparation, by finding opportunities for community service (including arrangements for safety and insurance) and liaising with rehabilitative agencies.

 

Integration into the system

It will be convenient to make a division of offences into four broad categories, least serious, less serious, more serious and most serious – and in a restorative system these distinctions would take account of the effect on the victim, not only of an arbitrary legal category. The actual border lines between them will of course vary at different times and in different countries.

 

The least seriousoffences would be diverted out of the system either informally (by the police officer who says ‘Go home and don’t do it again’) or formally (where an official caution or warning is given by the police, prosecutor or court), and no further action is taken. This warning would be given in a ‘restorative’ way, that is, by emphasizing the harm caused to others rather than by threatening punishment if the offence is repeated.

 

Less seriousoffences would be those where the accused admits the act (though not necessarily guilt in the legal sense) and where there has been enough of an impact on the victim to make it worth asking if they would be willing to take part in mediation or a conference, but the intervention of a court is not necessary. There should be a minimum below which mediation is not normally used.

 

More seriousoffences require the supervision of the court to confirm that the accused has committed the act charged; but then the court can refer the case to a conference to decide on an ‘action plan’ for the offender. This is brought back to the court, which in most cases confirms it, but may add to it or reduce it. If it does make a change, however, the court should explain to the victim and the offender why it was felt necessary to alter their agreement.

 

The most seriousoffences will have to dealt with by courts, and until restorative justice is better known and accepted, sentences will continue to be decided on a retributive basis; but the aim is that these sentences should also be based on reparation. In addition courts would impose restriction of liberty when necessary, such as suspension of a driving licence, restrictions on movement, or disqualification from following a certain occupation or profession, but deprivation of liberty (imprisonment) would be kept to the minimum required for the protection of the public; it would be protective custody and not punitive custody, and prisoners should also have the opportunity to make reparation in the sense outlined above.

 

Distinctions of this kind are already made in ‘out-of-court offence settlement’ (aussergerichtlicher Tatausgleich, ATA) in juvenile law in Austria, where only offences punishable with more than five years’ imprisonment are in the ‘more or most serious’ categories, and in New Zealand, where only homicide and some very grave rapes and assaults are heard in the High Court, and pre-sentence FGCs are used even then (McElrea 1996, Akester 2000).

Some frequently asked questions

Of course there are problems and questions that need answering. legitimate points have been raised about safeguarding human rights, especially of offenders. Some of these, however, come from lawyers who take the conventional theory of criminal law as a basis, and try to fit restorative justice into it. I have nothing against lawyers – some of my best friends are lawyers! – but I would suggest, with the greatest respect, that it would be better to ask the question in a different way, namely, to accept that restorative justice starts from a different philosophical base, and ask how it can be implemented in a way which respects the needs, and the human rights, of the victim, the offender, and other members of the community who are affected. These are questions which the advocates of restorative justice need to ask: There are serious issues about, for example, whether the process enables the accused to obtain advice from a lawyer. Many of them have been taken into account in the Youth Justice Conferencing Scheme in New South Wales, Australia (Trimboli 2000). Where lawyers are involved, they should be familiar with the principles of restorative justice. These objections are not a reason for dismissing restorative justice; the movement is addressing them, and will welcome help from lawyers and other practitioners in finding restorative solutions.

 

Lawyers also ask whether restorative justice can deal with ‘victimless’ crimes and attempts, regulatory offences, and so on. These have not yet been fully addressed, but can be approached in a similar ‘restorative’ way. As an Australian social theorist David Moore says, ‘When we ask not “Who did it and what is to be done to them?” but “What happened, how have people been affected, and what do we need to do now?” we get a very different sort of justice. We get a justice process that involves the acknowledgement of conflict, then the transformation of conflict into co-operation’ (Moore 2000: 330). For misleading descriptions of goods offered for sale, for example, instead of a fine, the offender might be required to discuss the effects of inaccurate labels and to contribute to the cost of enforcing the regulations: offenders might have to pay the same as if they had been fined, but the message given to them would be different.

 

A common question is, Will restorative justice deter crime, or is it a ‘soft option’? There are several answers to this. One is that meeting a victim can be a stressful experience, as it was for Tom, the young man described above; another is that deterrence is not very effective, as he also showed. In a restorative system the reduction of crime would be based, logically, on crime reduction strategies. Even if it is less punitive than the alternative, why should it not be? If offenders receive a reduced sentence for confessing the crime, or for co-operating with the police, why not also for taking part in a process which requires them to do something constructive, instead of passively enduring punishment, and which in addition offers advantages to the victim?

 

The Truth and Reconciliation Commission in South Africa has shown us forcefully that severity of punishment has to be weighed against the probability of discovering the truth. In that country far more wrongdoing was uncovered in a far shorter time by offering an amnesty in exchange for full disclosure than could ever have been achieved by attempting to detect, prosecute and punish the offenders – although those who did not confess could still be prosecuted. Archbishop Desmond Tutu, who chaired the Commission, maintains that this process ‘encourages accountability rather than the opposite. It supports the new culture of human rights and acknowledgment of responsibility…’. Retributive justice, he says, is not the only form of justice. In restorative justice, the central concern is reintegration, the redressing of imbalances, the restoration of broken relationships, in the spirit of what is called in some South African languages ubuntu, the quality of being ‘generous, hospitable, friendly, caring and compassionate’ (Tutu 1999: 51, 34): Although South Africa still has serious problems, with intolerable levels of unemployment and crime, it is generally believed that any other policy would have produced far worse results, and the South African Law Commission has proposed a new Child Justice Bill based on restorative principles (SALC 2000)5.

 

Towards transformation of society?

It was suggested at the beginning that restorative justice could offer an alternative to criminal justice. It can be used even more widely, beginning in schools: children are being encouraged to use mediation to resolve playground disputes and disputes between the child and the school. This can reduce the amount of bullying and the number of children excluded from school for bad behaviour.

Neighbourhood mediation can deal with conflicts between neighbours, some of which would otherwise take up time in the civil courts or lead to a violent act and a criminal court. We see mediation (alternative dispute resolution) being used in disputes in the workplace, business disputes, environmental disputes, disputes concerning the care of elderly people, in reaching agreement on the conditions for separation and divorce, and many more besides.

As regards criminal offences, several countries are using mediation or conferencing in the juvenile justice system, and some of them are extending it to adults. There is every reason to hope that this in turn could reduce the prison population. For those who do still have to be sent to prison for the protection of the public, there are several possibilities. Offenders can make indirect reparation by work for people less fortunate than themselves, for example by repairing wheelchairs for use in Africa or transcribing books into Braille for blind readers. Mediation can be used to resolve disputes between prisoners, or between prisoners and staff – and this does not only resolve disputes, it shows them how to do so.

No one need fear that the proposal is a step towards abolishing courts. They will have two roles. Firstly, since the mediation process requires the consent of the victim and the offender, and cannot be used in all cases, they will be needed to hear the cases where for any reason mediation or conferencing does not take place or does not succeed; and secondly, they will oversee the justice process, as they do in New Zealand, to make sure that it is genuinely restorative and respects the rights of all concerned.

These principles can be applied in other parts of society, and above all in schools, where the foundations can be laid for a society based on respect for all individuals and constructive ways of resolving conflicts. Restorative, problem-solving methods, unlike those based on punishment, bring us closer to the ideal of a stable society, in which people would respect each other’s individuality and acknowledge our responsibilities to each other within the community.

REFERENCES

Akester, Kate (2000) Restoring youth justice: new directions in domestic and international law and practice. Justice, 59 Carter Lane, London EC4V 5AQ.

Christie, Nils (1982) Limits to pain. Oxford: Martin, Williamson.

Czarnecka-Dzialuk, Beata, and Dobrochna Wójcik, eds. (1999) Juvenile offender-victim mediation. Warsaw: Oficyna Naukowa.

McElrea, Frederick W M (1996) ‘The New Zealand youth court: a model for use with adults.’ In: Burt Galaway and Joe Hudson, eds. Restorative justice: international perspectives. Amsterdam: Kugler.

Moore, David B (2000) ‘Community conferencing: a supply side contribution to prison abolition.’ In: W Gordon West and Ruth Morris, eds. The case for penal abolition. Toronto: Canadian Scholars’ Press.

South African Law Commission (2000) Report on juvenile justice. (Project 106.) www.law.wits.ac.za/salc/report/project106.html

Trimboli, Lily (2000) An evaluation of the NSW Youth Justice Conferencing Scheme. Sydney: NSW Bureau of Crime Statistics and Research. www.lawlink.nsw.gov.au/bocsar

Tutu, Desmond (2000) No future without forgiveness. London: Rider.

Umbreit, M, and A W Roberts (1966) Mediation of criminal conflict in England: an assessment of services in Coventry and Leeds. Centre for Restorative Justice and Mediation, School of Social Work, University of Minnesota, 386 McNeal Hall, 1985 Buford Avenue, St Paul MN 55108, USA

Wright, Martin (1977) ‘Nobody came: criminal justice and the needs of victims.’ Howard Journal, 16(1), 22-31.

Wright, Martin (1999) Restoring respect for justice: a symposium. Winchester: Waterside Press.

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1 Rotterdam, Zwolle, Gouda and district, Almere, Amsterdam and Amersfoort.

2 Amsterdam (several), Arnhem, Enschede, Groningen, Haarlem, Maastricht and Rotterdam (several).

3 Almelo

4 The Hague

5 Other questions relating to voluntary participation, standards, rights, and other matters, are considered in Czarnecka-Dzialuk and Wójcik (1999: 125-132).

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.