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.
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.
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.
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.
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.
Braithwaite, John (1998) Restorative justice: assessing an immodest theory and a pessimistic theory. Canberra: Australian Institute of Criminology: firstname.lastname@example.org
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.
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Appendix I: How restorative justice can be used (rev)
(1) Least serious offence: Discontinue (with or without a Warning)
(2) More serious offence
accused admits act or `does not deny’ accused denies guilt
guilty not guilty
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
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
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).