On December 7, 2016, I’ll be joining Howard Zehr for a webinar on Restorative Lawyering.
Of course, that raises two questions: 1-Who is Howard Zehr, and 2-What is restorative lawyering?
Professor Zehr is a professor at Eastern Mennonite University’s Center for Justice and Peace. He is often cited as the founder (or grandfather) of “restorative justice,” although he does not take credit, claiming that restorative justice has roots in traditional and indigenous methods of conflict resolution. He has published some books, including, “Changing Lenses” that introduced the concept of restorative justice in criminal proceedings in 1990. Recently, EMU has added the Zehr Institute of Restorative Justice that will be hosting this webinar.
Restorative lawyering is a model of practicing law that I have been developing along with colleagues such as Marshall Yoder and Susan Marcus. Restorative lawyering adopts the guiding principles and values of restorative justice. In doing so, we look at each situation, problem, or conflict and often start by asking, “Has there been harm that needs to be addressed?” and “What can be done to make right the wrongs?” These fundamental questions, central to restorative justice, change the focus from what statute or rule has been violated to what can be done to make things better.
With this view, litigation becomes no more than a means to an end. In other words, when I approach a legal problem, I try to collaborate with the client or parties to identify what is not working. Since the conflict arose, what needs have developed? What can we do to make this right? In a situation with an accident victim that typically means working with the victim to get the medical treatment that he or she needs to get back to being happy in his or her life. It means taking over the details with medical bills and helping the client navigate the complicated maze of health care in the United States. Eventually, we collaborate to find the best resolution through a settlement for the client.
Why is this different? While nearly all civil cases result in a negotiated or mediated settlement, many attorneys focus their work on litigation and not on resolution. The focus is on the enforcement of legal rights rather than meeting the client’s needs. With restorative lawyering, we work hard to keep the focus on those needs, even when litigation becomes necessary to generate the resources to meet the needs.
Often, people who are familiar with restorative justice have learned about it through a program, such as one in a school or part of a judicial court system. A concept of restorative lawyering, without a formal program, seems confusing. However, restorative justice is more of a set of principles and values than a particular program. In fact, some of the most successful applications I’ve seen of restorative justice have been based more on community involvement and organization and less on institutionally created programs! The principles of restorative justice guide my legal and mediation practices, just as they provide structure for judicial programs.
The five principles that Professor Zehr identified in Changing Lenses begin, of course, with “seeking to make right the wrongs.” The other principles include focusing on the harms and the consequential needs, identifying obligations that arise from the harm, adopting a collaborative, inclusive processes, and involving stakeholders in all processes.
My work in restorative justice began in 1998 As a prosecutor; I was walking into the courthouse with a victim’ relative during a trial. The family member looked at me and said, “the is worse than going to a funeral.” I was surprised. I loved litigation and going into the courtroom. I was shocked to find out that the parties did not enjoy the process as much as I did. I watched victims and later clients in court, depositions and meetings. What I discovered is that the legal system is hard on folks and does not necessarily produce the best outcome. When I looked for other options and ran across early materials about “Victim Offender Reconciliation”. By 2007, I was fully committed to continuing to work for justice, but to work for it in more peaceful, and victim friendly format. I began the master’s program at Eastern Mennonite University. When I started working for my degree, I anticipated that I might leave my private practice and start working in a more structured restorative justice program. However, by the time I needed to do the final practice related part of my degree program, I changed my mind. I decided that the most important thing I could do was to work to provide a restorative way to resolve conflicts and address legal problems through my private practice in West Virginia and Washington, D.C. Since that time, I’ve brought the principles and values to every case and been able to integrate many specific practices into civil, family and criminal cases.
One surprising thing I have discovered is that restorative lawyering is restorative to the client, the client’s family, and the community. That’s the focus. But a critical by-product is that it is also restorative to the lawyer. Many lawyers find that legal work I destructive and hurtful. With my new practice and my growing awareness of the dissatisfaction of my attorney colleagues, I’ve also found myself working at it from that angle, but that’s another story!
If you’d like to view the recording of the webinar, click here.