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Having previously worked within a local government youth offending team, in which restorative Justice was a key part of the overall approach, I felt adequate to the task of a writing a brief introduction to Restorative Justice as falling within the scope of ADR. I had however made this assumption based on the use of the term mediation as a technique rather than a defined process in its own right.

It is an easy assumption to make when within the many definitions for Restorative Justice, which can readily be found through any internet search, the term mediation is frequently used. Although definitions differ from country to country a broad commonly accepted working definition is:

 A “restorative process” is defined as “any process in which the victim and the offender, and, where appropriate, any other individuals or community members affected by a crime, participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator”.

Restorative justice gives as much importance to the process as to the outcome. In Europe, and in many other parts of the world, the process is often referred to by means of the technique that most models have in common, that is “mediation” as distinct from legal adjudication [1]. An early report (2005) ‘Meeting The Challenges Of Introducing Victim-Offender Mediation In Central And Eastern Europe’ commissioned on behalf of the ‘European Forum For Victim-Offender Mediation and Restorative Justice’ clearly links the two [2].

Although mediation is a common aspect of both ADR and Restorative Justice there is a very important and defining difference.

Within ADR

“Mediation is a way of resolving disputes which assists the people involved to reach an agreement with the help of an impartial mediator. The parties rather than the mediator, decide the terms of the settlement.” [3]

Within Restorative justice the motivation is not resolving disputes.

It is “primarily the need to address the harm done: it does not take place unless and until the person who has caused the harm has fully and freely admitted to their actions and is willing to take responsibility for them.” [3]

Restorative Justice like ADR is not new. Historically Kings, local leaders and parents have been mediating between parties allowing wrongs to be acknowledged and personal accounts told. It was and is considered a common-sense approach which focused on those who have done harm accepting responsibility and the harm being put right in some way. Within Western society justice has become a formal process. It is part of government, with accountability to society rather than to those harmed. The victim essentially becomes the state rather than an individual or a community. [4]

Frustration and dissatisfaction with the lack of recognition of victims within this formal process has been in part responsible for alternative approaches. It is particularly prevalent within the rehabilitation of young offenders where Restorative Justice has become an active component. Conflict and the consequences of conflict are seen as ‘an opportunity for individuals to learn and grow from their actions’ [5]. It is however not just about those who have been convicted it is also a part of the process of preventing young people from becoming part of the criminal justice system by providing an opportunity for change. Victims are a significant part of this process.

Restorative Justice provides opportunities for those directly affected, both individuals and communities, to be heard and have a say in “resolving conflict and addressing its consequences”.

Active involvement of all involved is a key aspect of Restorative Justice and is “seen as a means to encourage the peaceful expression of conflict, to promote tolerance and inclusiveness, build respect for diversity and promote responsible community practices” [6].

Lucio Sia expresses the required participation quite eloquently “participation of the parties is an essential part of the process that emphasises relationship building, reconciliation and the developments of agreements around a desired outcome between victim and offender. The Victim, the offender and the community regain some control over the process. The process itself can also transform the relationship between the community and the justice system as a whole [7].

Mediation or rather the role of a mediator/facilitator is part of the process of Restorative Justice, however it is phrases like: ‘resolution, resolving conflict, relationship building, reconciliation, inclusiveness and mutual agreement’, which in many ways mirror the benefits associated with mediation, that give rise to the assumption that Restorative Justice and Mediation are essentially the same when in reality they are very different.

On paper it is relatively easy to highlight a clear distinction but in practice it is of course very different. Charlotte Calkin a Restorative Justice practitioner suggests it is the restorative questions that highlight the difference:

“Ultimately the restorative questions sum up the restorative process:

  • What happened?
  • Who’s been impacted?
  • What can we do to make it better?

– and the process required to work through these 3 questions is a different process to mediation”[8].

She also discusses the views from both Mediators and Restorative justice practitioners which highlights the difficulties in distinguishing between the two approaches. Her concluding comment is however different to mine.

“Ultimately this blog is not about what’s right but about what is most useful to those who need our services and essentially a blending that delivers the benefits of both disciplines will very probably be the most beneficial outcome to the parties involved going forward.” [8]

I am not a practicing mediator or a Restorative Justice professional so for those looking for a more practitioner led discussion then follow the link to Charlotte Calkins full article https://why- me.org/2016/restorative-justice- and-mediation- when-to- deploy/.

By Charles Lockyer (Consilium Development and Training)

Bibliography

  1. United Nations Office on Drugs and Crime (2006) Handbook on Restorative Justice programmes. Part of: Criminal Justice Handbook Series. p.7. [Online]
  2. European Forum For Victim-Offender Mediation And Restorative Justice (2005) Meeting The Challenges Of Introducing Victim-Offender Mediation In Central And Eastern Europe. [Online]
  3. Brookes, D. & McDonough, I. (2006) The Differences between Mediation and Restorative Justice/Practices [Online]
  4. Walker, L. (2013) Restorative Justice: Definition and purpose. In: van Wormer, K. S. & Walker, L. (eds) Restorative Justice Today: Practical applications. USA, Sage, pp.3-13.
  5. Restorative Justice Council (2015) Restorative justice in youth offending teams Information pack. p.3. [Online]
  6. United Nations Office on Drugs and Crime (2006) Handbook on Restorative Justice programmes. Part of: Criminal Justice Handbook Series. p.11. [Online]
  7. Lucia, S. (2013) Restorative Justice: An International perspective. In: Sellman E, Cremin H & McCluskey G. Restorative Approaches to Conflict in Schools. London, Routledge, pp.11-22.
  8. Calkin, C. (2016) Restorative Justice and Mediation: Is there a difference? [Online]

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