Restorative Justice as an Alternative Process
Today, we continue in our review of the alternatives within ADR and will look at restorative justice or restorative practices. My law and mediation practice is based in the principles of restorative justice. Today’s post looks more at a few of the processes often associated with restorative justice that are sometimes used instead of conventional litigation or court processes.
Definition and Components:
Many classrooms use restorative practices as an alternative to punitive discipline processes.
Restorative Justice is often understood as an alternate way of addressing criminal wrongdoing. It also originated in the 1990s with a program in Canada and one in Elkhart Indiana that provided victims with an opportunity to meet with offenders to address harm. The primary belief that underpins restorative justice is that crime is more of a violation of relationships that creates needs. The job of RJ is to address those unmet needs and make right the wrongs rather than seek to punish the offender. Restorative practices are now used in many school systems for discipline, by DHHR in abuse and neglect and juvenile cases and in many other contexts in addressing criminal wrongdoing by adults.
Unique qualities:
Restorative justice is not a specific process, but rather a different approach to look at criminal wrongdoing, that may have far broader application in both criminal and civil conflicts. The primary qualities that are unique, especially as compared to typical adjudicatory processes are the increased participation of the stakeholders, a more expansive view of options for remedial action, more considerable attention to meeting the needs of those affected rather than the focus on the law that was broken. The most common restorative justice mediation process associated with the context of a criminal case is the victim-offender dialogue.
Steps or stages:
Restorative justice can provide an opportunity to address harm and reach a resolution.
While no particular process is “restorative justice” most people in the United States are familiar with restorative practice in an educational setting, particularly the use of talking circles, or in the criminal justice setting with the use of victim-offender dialogues and re-entry circles.
In the talking circle used in many educational settings and the reentry circle, a facilitator is selected, and participants contribute to the discussion by speaking in sequence starting with the person seated to the left of the facilitator. The conversation continues until a consensus emerges or when the facilitator finds that the participants sufficiently discussed the topic.
In the victim-offender dialogue, at the request and approval of both victim and offender, the facilitator meets with each of them before the session, often for several meetings. During the dialog, the facilitator ensures that the parties adhere to the ground rules. Usually, after the meeting, the facilitator of the restorative justice process meets privately with both parties.
Advantages:
Voluntary.
Permits parties to seek remedies to address their harm and the needs that result from that harm.
Circles allow for equal participation of all participants.
Victim Offender Dialogs offer an opportunity for victims to get answers to questions and may provide a chance for an apology.
Disadvantages:
Generally, restorative justice process practices do not provide a means of adjudicating a disputed fact. If that is important, restorative justice may not be available.
Many established programs purport to provide a restorative justice process but do not adhere to the fundamental requirements, confusing what restorative justice requires.
Best for:
Criminal cases, juvenile offenders, child abuse, and neglect processes and conflicts within the school. Other potential applications are too numerous to list.
For more information:
Howard Zehr, Changing Lenses
Dan Van Ness, Restoring Justice: An Introduction to Restorative Justice (
Kay Pranis, Circle Keepers Handbook.
If you are interested in learning more about restorative justice practices in West Virginia, Virginia, and D.C., contact Brenda Waugh today.