Helen Bowen, an Auckland, New Zealand, attorney who has facilitated hundreds of restorative justice conferences, describes the process as follows:
The facilitator’s aim in a conference is to guide this process [which] enables victims and offenders to have a forum, with the support and participation of those closest to them. [I]t is “process” driven rather than “outcome” driven, unlike commercial mediation . . . .
The object of the conference is to facilitate an exchange between the parties in an environment of healing, to learn about the other, to move on from the offense, so that other issues can be identified. Another way of describing the exchange is as the “demystification” of the offending. The offense as experienced by the victim freezes the moment in time. Allowing the victim to meet with the offender and ask questions means many fears dissipate. The offense becomes a past event and the meeting becomes and opportunity to provide a better future for the offender and to have the fears of both parties put aside.
There is no predetermined outcome. It is through the process that transformation of the victim-offender relationship can occur.
There may not necessarily be a resolution of the conflict or even forgiveness on the part of the victim. It may simply be that the parties are given the opportunity to demystify the wrongdoing in an environment that does not seek to blame. It may be that the parties are able to pose solutions for the future rather than concentrating on the events of the past.
The process allows the victim to view the offender as the person seated opposite now, rather than as the unknown person who previously offended. The offense takes on a more personal dimension for both parties. Fears are set aside.
The restorative justice process has as its aims offender accountability and victim recognition and healing. This necessitates full participation of both the victim and the offender. If either party is unwilling to take part, the opportunity for restoration and healing diminishes.
Central to good restorative justice practice is the participation of those significant members of the community who are present to support the victim and the offender. Acknowledgement of responsibility in the presence of the community is a significant enhancement to the process of restoration. The value of the presence of the support people and family members cannot be emphasized enough. It is against this background of community support that offenders take responsibility for the offending. When the victim experiences this willingness and preparedness (on the part of the offender) to take responsibility and to accept the consequences, the relationship between the parties changes. It moves from blaming the offender to seeing how the victim and the community can assist the offender to cease offending. The direction of the conference changes at this stage. Information sharing and acceptance of responsibility allow all parties to turn to the issue of consequences for the offender and benefits for the victim and community. The natural consequence of helping the victim and the community is of course a benefit for the offender as well. The taking of responsibility by the offender allows the community to assist in endeavors to prevent re-offending.
[Quoted from: “Restorative Justice: Contemporary Themes and Practices” by Helen Bowen and Jim Consedine, pp. 18-20.]
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Justice Williamson of Christchurch, New Zealand, described the way of handling juvenile cases under New Zealand’s “Children, Young People and Their Families Act of 1989” as follows:
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Dennis Cooley of Canada in his discussion paper From Restorative to Transformative Justice written for the Law Commission of Canada and published at http://www.lcc.gc.ca/en/forum/rj/index.html says (Executive Summary on p. 4) that:
- Crime is a violation of a relationship among victims, offenders and the community.
- Responses to crime should encourage the active involvement of victim, offender and community.
- A consensus approach to justice is the most effective response to crime.
John McDonald and David Moore of Transformative Justice Australia (TJA) in their Statement of Philosophy found at www.tja.com.au/ use the following definition and description:
This sustainable sense of justice can only be achieved if all the conditions of a defensible democratic process are met. So an adequate transformative justice process must satisfy the conditions of political equity, deliberation, participation, and non-tyranny. More generally, it must be determined whether a transformative approach to conflict is appropriate for dealing with the case at hand. We consider that there are three general options.
In all arenas of human activity, some people, some of the time, behave inappropriately and harmfully. The result of such behavior is conflict between those affected. Responses to conflict fall into one of three categories. A first category of responses amplify the conflict generated by inappropriate and harmful behavior. For instance, conflict is amplified when incidents are addressed in court. If one party accuses guilt, and another claims innocence, then the conflict between these two arguments is amplified to test the evidence. In theory, only the convincing arguments are left standing. But if there is no major dispute about guilt, or about the basic facts surrounding the conflict, this amplification of the conflict — with all of its concomitant harm — may not be necessary.
A second category of responses avoid or minimize conflict. For certain types of case, this category of response is quite appropriate. Thus, some forms of negotiation, mediation and conciliation seek to minimize any general conflict surrounding a specific dispute in order to search more fruitfully for an optimum resolution of that dispute.
But in cases where there is no clear dispute, or there are several disputes, or there is a history of unresolved disputes, the real problem is no longer any specific dispute. The real problem is the general conflict surrounding the dispute(s). And in such cases, a third category of response is required. What is required is not so much a process of dispute resolution as a process of conflict transformation.
Conferencing is currently perhaps the most prominent practical example of this transformative response to conflict. We consider it to be the most prominent realization of the philosophy of transformative justice.
Conferencing is not something new, nor are its general principles unique to any particular culture. On the contrary, although the modern conferencing movement has been inspired by traditional Maori practice, the community conferencing process appears similar to other circle-based ceremonies for dealing with harm to the social fabric. Similar ceremonies are used in societies around the world. Indeed, anybody who has lived in a close supportive family may recognize, in community conferencing, some principles and techniques for dealing with a wide range of difficult, conflictual issues.
Community conferencing is the generic term now given to this process as it is used in schools, justice systems, workplaces and other settings to deal with the conflict arising from harmful behavior against property or persons. A community conference brings together a community of people who have been affected by harmful behavior. Conference participants are provided with a structure within which they might best determine (i) how to repair the damage arising from the harmful behavior, and (ii) how to minimize further harm. Thus, the conference deals with the past and the present, and it deals with the future.
All available evidence suggests that, measured against alternative interventions in comparable cases, community conferencing and workplace conferencing generate: (i) a greater sense of participant satisfaction, including a sense of justice; (ii) greater levels of social support; and (iii) reduced rates of re-offending.
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Jennifer J. Llewellyn, B.A. M.A. (email@example.com) and Robert Howse Associate Professor of Law, University of Toronto and Visiting Professor, University of Michigan Law School (firstname.lastname@example.org) in their treatise RESTORATIVE JUSTICE ~ A CONCEPTUAL FRAMEWORK, prepared for the LAW COMMISSION OF CANADA and published at http://www.lcc.gc.ca/en/papers/howse.html give this definition of restorative justice which they attribute to Tony Marshall (as quoted by John Braithwaite):
- Involve all parties with a stake in the resolution of the conflict. The victim, the perpetrator and community must each be involved and enabled to participate fully in the process.
- Recognize and seek to address the harms to one another, remembering that harm is not restricted to the victim but can be experienced by the wrongdoer and the community.
- Be voluntary. Participation cannot be the result of coercion, fear, threats or manipulation brought to bear on either the victim or the wrongdoer.
- Be premised on and include truth telling. Truth telling in the form of an admission of responsibility for what happened on the part of the perpetrator is a precondition for a restorative process; truth telling in the form of honest relating of one’s story and experience of all parties is a fundamental part of the process.
- Involve encounter (face to face meeting and sharing of stories and experiences) between victim/wrongdoer and community.
- Protect the rights of victims and wrongdoers.
- Involve a facilitator who can ensure the needed broader social perspective.
- Aim for reintegration of victim and wrongdoer into the community.
- Develop a plan for the future or agreement for resolution out of negotiation.
- Not involve punishment.
- Be evaluated by its results (whether it restores or not).
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John Wilmerding, the Executive Director of the Campaign for Equity-Restorative Justice, includes among the definitions provided on his web site at http://www.cerj.org/lexicon.html , the following:
A term referring to fundamental justice processes which are present in healthy communities. Also, a noun referring (in the aggregate) to justice processes that create or restore equity; that ‘make things right’. Example: If justice is a function of community, then restorative justice is a minimal requirement for healthy communities. [NOTE: At this point in time, some governments are showing the inclination to co-opt this term to describe processes they sponsor that are less likely to yield equity or equanimity, and even some that incorporate punishment. Punishment is not reatorative of equity.Transformative Justice, or ‘justice as transformation’:
Justice processes that permit, encourage, and assist (or enable) individuals and groups to transform their patterns of personal energy, intentions and/or behavior from negative/destructive to positive/affirmative, in order that they might be able to fully, mutually, affirmatively, and pro-actively participate in the co-creation or restoration of equity and/or harmony in their community. [In some groups that embrace a ‘spiritual’ perspective on justice, mention is made of a spiritually-grounded ‘transforming power’ that makes transformative justice processes possible.]
An action (or inaction) which is proscribed; forbidden by public *written* law on the basis (or presumption) that it is harmful.
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