Restorative Justice and Conflict Mediation

Tania Almeida
Consultant, Teacher and Supervisor in Conflict Mediation. Founding Partner and CEO of MEDIARE – Dialogues and Decision-Making Processes . Member of the Ethics Committee and Vice-Presidency of CONIMA – National Council of Mediation and Arbitration Institutions

 

History

Restorative Justice is a worldwide movement to expand access to criminal justice recreated in the 70s and 80s in the United States and Europe. This movement was inspired by ancient traditions based on peace-making and consensus-building dialogues from African cultures and the first nations of Canada and New Zealand. 

The concept and philosophy of restorative justice have underpinned social programs dedicated to caring for victims, offenders and the communities that shelter them, and have oriented towards the restoration of their lives and social interaction.

The restorative ideal as a proposal for justice


The power of synthesis and information conveyed by the comparative tables will help us to visualize a range of differences between the retributive proposal and the restorative proposal of justice, demonstrated by the scheme published by Highton, Alvarez and Gregório in 'Resolución Alternativa de Disputas y Sistema Penal' . 

 

Retributive Justice

restorative justice

Crime

infraction of the rule

conflict between people

Responsibility

Individual

individual and social

Control

penal system

Penal system / Community

Protagonists

offender and the state

Victim, victim and community

Method

adversarial

Dialogue

Goal

prove crimes
establish blame
apply punishments

resolve conflicts
Take responsibilities
repair the damage

Time

based on the past

based on the future

 

The striking contrast between the two proposals allows us to apprehend the preventive potential of the restorative proposal, as well as its purpose of involving the subjects in their acts and in their resolution – a process of enormous repercussion in social pacification.

What is Restorative Justice?

Restorative justice seeks to balance meeting the needs of victims and the community with the need to reintegrate the offender into society. It seeks to assist the victim's recovery and enable all parties to participate in the justice process in a productive manner (United Kingdom – Restorative Justice Consortium, 1998).

A restorative process means any process in which the victim, the offender and/or any individual or community affected by a crime participate together and actively in the resolution of issues arising from the crime, often being assisted by a third party invested with credibility and impartiality (United Nations , 2002).

After an initial moment dedicated primarily to taking care of the victim's needs through the use of programs dedicated to the victim/offender dyad (Victim Offender Programs), projects based on the restorative paradigm began to increasingly include the offender's needs, as well as community needs. Victims, offenders and communities are considered stakeholders (members of an interactive network of people) of restorative justice processes and programs.


The victim

Studies on post-traumatic conditions that can affect victims show that the care they need goes far beyond the application of penalties to the offender. Emotional containment, a protected space to express fears, fears, discomfort, suffering and anger, as well as feelings and questions related to the offender, have been characterized as part of restorative care for victims. 


the offender

The circular and recursive movement of being subject and object in social processes has helped us to visualize that the offenders of the present acts are, in most cases, the victims of the acts of the past or, they are even one and the other simultaneously in the gift. The identification and analysis of the biopsychosocial processes that contribute to this mutual interaction and influence require, according to the restorative framework, that interventions other than the punitive one, can contemplate these individuals and, consequently, society as a whole. 


The community

The micro-communities that welcome and surround victims and offenders, single or multiple, gain, from the restorative point of view, the status of co-participants and co-responsible in the process of construction of the criminal act and in the process of restoring the victim, the offender, the micro community itself and society as a whole.


What are the goals of restorative justice?

The object of work of restorative justice is not the crime, but the conflict resulting from the crime. This is a key distinction. The contributions of restorative justice are complementary to the treatment given to crime by the State. The penalty does not resolve the conflict, the main object of restorative programs.

The opportunity for the victim to expose their feelings and perceptions regarding the damage suffered, to ask questions that compulsorily invade their daily lives and to say about the impact that the trauma had on themselves and/or their family members have been aspects understood as relevant for a reflective and reparation for the offender and for the restoration of the victim. 

The possibility of knowing the impact of their actions and eventually clarifying that the consequences of their act went beyond their intention, as well as the recognition of the error, can also act as a differential for the establishment of a better quality stage in the offender's history, as well as contributing to the restorative process of both offender and victim. 


How to operationalize this proposal?

In general, the procedures that integrate the practice of restorative justice are preceded by individual interviews with the victim and the offender, accompanied by their lawyers, if any. Victim and offender participation in the restorative process should be voluntary. They are informed about the objectives of the work and prepared to participate in it. 

There are three classic procedures used in this quality of process. They differ in terms of the number of participants, the quality of participation of the impartial third party, the social reach and the procedures.

  • Criminal Mediation – Criminal Mediation is any process that allows the victim and the offender to actively participate, if they freely consent, in the solution of difficulties resulting from the crime, with the help of an independent third party, the mediator. (Recommendation (99)19 of the Committee of Ministers of the Council of Europe – European Union).

 

Mediation between victim and offender may or may not include their family members as support for both, both at the time of mediation and in the commitment to the proposals that may arise from it. 

Conflict mediation has been the most used instrument in restorative justice programs and has been proving the aforementioned effects. Depending on the culture where it is used, its results are forwarded to the judge responsible for the case, taking them into account or not when drawing up the sentence pertinent to the crime.

  • Family Conferences – This process is especially used when you want to focus on the support that family, friends and other community members can offer the offender, both in complying with agreed behaviors with the victim and the community, and in changing their behavior. 

    State representatives can be present in this process of dialogue, facilitated by an impartial third party who must conduct it in a way that balances meeting the needs of both parties, offender and victim. 

 

  • Consensus Building Circles – Inspired by indigenous communities, these conversation and consensus building circles involve a greater number of people – victims, offenders, their families, the community and legal practitioners. 

    The circles include the presence of the judge and the consensual construction of the sentence for the offence. 

    The use of these circles of construction and monitoring of observances today transcends their use in matters related to crimes. These circles have been used in dialogue processes that involve building consensus on community and institutional issues.

 

What kind of conflicts can be dealt with by the restorative paradigm?

All conflicts in which the parties and micro-communities involved can benefit from any of the instruments that result in restorative purposes. If these benefits are identified as possible, restorative methods can be used at any stage of the criminal justice process. 

The restriction on the use of restorative resources has more to do with the reflexive capacity and the capacity for reparation and restoration of the people elected to participate in processes of this nature. 


Conclusion

Between the extremes of ignorance by some cultures and the first option of use for criminal events with adolescents (New Zealand), the dialogue resources that make up the set of measures of the so-called Restorative Justice are a growing reality in the contemporary world. 

Among these resources, Conflict Mediation stands out because it promotes self-composition based on authorship and the consequent responsibility in complying with the agreement. 

These resources make possible a systemic analysis and action in the conflict, allowing us to act in its different aspects and to have a broader social action.