A Restorative Justice Based Practice of Law

I’m putting the finishing touches on my breakout session for the RPI conference next week in St. Paul about restorative lawyering. What’s that? Both Dan Van Ness and Howard Zehr describe restorative justice as being a continuum, with some practices fully restorative and others not at all restorative. Most RJ program practices can be placed someplace on that continuum.  I have found that in my everyday practice of law and mediation, my practices may also be placed on that continuum and I work to find the ways to make them more restorative.

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Today's blog post is my second about free speech rights for students in school.  My first post addressed what rights the First Amendment guarantees to all citizens and how they may be limited.  Today, I'll move and discuss precisely what limits school officials can place on students in public schools.  (Remember that private schools that do not receive federal funds have different standards!)

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With the wave of activism among American’s youth, I find that I’m getting calls from students, and their parents, about what free speech rights students have at school, and outside of school.  In the past, I've been involved in research and litigation involving the free speech.  During law school, I working as a research assistant on the issues of free speech and religion.  The first case that I argued at the West Virginia Supreme Court addressed the free speech right of the student body president to intervene when security officers began arresting students at a football game.  Since then, the laws have changed a little, but the fundamental meaning of the first amendment remains solid.  The government is limited by the First Amendment in when and how it may infringe upon any citizen's right to speak freely.

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Collaborative Divorce in the Mountain State: What the Parties say

In my last post, I described my excitement when members of my collaborative practice group worked with a couple to complete the first collaborative divorce in West Virginia.  I explained the benefits, from my perspective as a collaboratively trained attorney. After the hearing, we had a chance to sit down with the parties and talk a little bit about their experience with collaborative divorce.  

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A Collaborative Divorce in the Mountain State

Last month I had the great honor to work with a couple who decided to use collaborative law to help them file and finalize their divorce.  In the very first collaborative case in West Virginia involving attorneys trained by IACP and members of a collaborative practice group. Yes, the first one!  And a mere two weeks later, the second case made its way through the courts.

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What's the Difference Between Litigation and a Long Train Ride?

Last week, my daughter, my mother and I took a train ride together. Years ago, my mother added the ride from Toronto to Vancouver to her "bucket list."  After finding a great sale for winter trips, we planned the trip and departed on  January 29, 2018.  Little did I know that I was about to learn a little bit more about what it might feel like to be a litigant in the American legal system.

A friend and fellow mediator, Jeff Molenda, often quotes John R. Van Winkle's book, "Mediation:  A Path Back for the Lost Lawyer."   In the first section of his book, "The Litigation Train," Van Winkle claims that at the end of the twentieth century in the United States our litigation system is broken and has to come resemble a long, expensive train ride.  

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After a tragedy, folks often gather to help out those who have suffered, any way  they can.  At one time, we probably would bake casseroles for each other and plan a church service.  Today, one of the things that I've noticed happening is that folks set up a Go Fund Me account to help cover medical or funeral expenses. 

These accounts often raise funds for the victims and may be helpful.  However,  I am concerned that sometimes they may not be as effective as other ways to help the victim or their families.  In fact, in some situations, the accounts may cause further harm to the family.

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Restorative Justice comes to West Virginia Schools

Last summer I had a call from the superintendent of schools over in Calhoun County, West Virginia.  Superintendent Tim Woodward was frustrated by frequent fights breaking out in the schools and the ineffectiveness of the school discipline system to stop them.  He was familiar with restorative justice, having worked in the schools near Harrisonburg, Virginia.   County prosecutor, Shannon Johnson, referred Mr. Woodward to me and we brainstormed a while on how we might bring restorative justice to Calhoun County.  We found great resources in Kathy Evans, a professor at Eastern Mennonite University who works on RJ in schools, and Jim Nolan, a WVU sociology professor.   The four of us collaborated and created a two-day program in January 2017 at the  Calhoun County administrative office 

This summer, Mr. Woodward accepted an opportunity to move to  Hancock County. Meanwhile, Kelli Whytsell, the assistant superintendent in Calhoun was promoted to superintendent.  In May, Ms. Whytsell and Mr. Woodward and I put our heads together and decided to create an intensive training on restorative justice at Canaan Valley with teachers and administrators from both systems. Jim Nolan again joined us for the training.  We were also  joined by Dashiell Quasebarth, a classroom teacher in the Virginia Beach area who uses restorative justice in his classroom.  

This was a situation when I learned more than the participants!  This  enthusiastic, compassionate and experienced group of professionals quickly caught onto the concept that restorative justice focuses on healing the harm after wrongdoing, rather than punishment for punishment's sake. Many of the Calhoun County participants began implementing some restorative practices in January.  With that experience came some successes.  One of the situations that impressed me most involved two parents who were drawn into a conflict outside of school, but had heard about the restorative circles and asked the school to help them work it out. The Calhoun teachers, administrators, and counselors had experiences with students who experienced a significant transformation in accepting responsibility for their wrongdoing during restorative justice processes.

calhoun restorative justice

Most of the Hancock county professionals were new to restorative justice.  However, as they learned about the principles and values of RJ, they were able to identify ways how what they are currently doing is consistent with restorative practices. Many easily articulated finding ways to expand these ideas  further.  Several teachers were excited to learn about the paradigm shift, moving away from punishment towards an outlook that seeks to find what harm was done and then look for ways to make right the wrongs and meet the needs of the offender, victim and the community.  

Some teachers struggled with the idea of less authoritarian approach in the classroom.  Midway through the training, we did a role play.  Participants assumed roles as teachers, administrators, and students, including one very disruptive student who was having trouble learning.  During the role play, the participant’s  became perspective shifted.  Some said that the time we had together had caused them to reexamine the way that they had done things and they were excited and looked forward to a new approach.  

My favorite moment of the weekend followed some small group discussions we had about various challenges that we are trying to address with restorative justice.  When we reconvened, we formed two circles in a Margolis wheel.  Teachers from Hancock County sat on the inside of the circle, and those from Hancock on the outside of the circle as they shared the ideas that were generated from their small group discussions.  It was rejuvenating for me to see how such experienced and dedicated teachers could be so excited about bringing RJ into their work.

Many of the participants came into the training thinking that the restorative justice in schools would be another program to invest in, roll out and then replace in few years.  However, once they realized that RJ is more a "way of being" that allows the educators to integrate new ways into looking at wrongdoing in the educational environment into their communities.