Transformative Mediation and Restorative Justice

 Vania Curi Yazbek

 "Postmodernity could be the dawn and not the dusk of a new ethics”

 Z. Bauman

 There are many ways we can focus on violence and the world we live in. One way of doing this is to describe social worlds from within ourselves, our mutual relationships and our society.

So that we can position ourselves as actors and authors of change, it is necessary to describe our participation also as builders of this reality in which we live and that we want to change.

Kenneth Gergen, North American social psychologist, presented in the text “Towards the vocabulary of transformative dialogue” (1999) a useful description for this purpose, since it speaks of social worlds built on communication and the priority of the interpersonal relationship over the “self”. individual.

It states that, in general, we feel more comfortable in certain groups than in others. These groups with which we relate and to which we belong are made up of interlocutors who give us support, give us an idea of ​​who we are, what is right and what is desirable. We feel “from within”, “being part of”, “us”.

The groups we distance ourselves from constitute the outside, a space that is not “us”, that is not what we believe or what we think is good. We tend to avoid those who are different, especially when they seem antagonistic to our way of life; we avoid conviviality, meeting and conversation.

We make our judgments, we position ourselves as righteous and we disqualify the other and alienate him. By finding faults in others, we create distance and build a wall between ourselves, without assuming the relational responsibility that underlies the transformative dialogue. We construct linguistic descriptions that imply one, and not another, way of being in the world.

In this way, we can visualize a social world atomized by differences, made up of “classes”, “gangs”, “political parties”, “religious factions” and, in general, coexistence in a competitive climate.

Faced with this panorama, Gergen poses the question: – “perhaps the main challenge for the XNUMXst century is how to manage to live together in this planet".

He continues, “if it is through dialogue that the relationships described are built, dialogue should be our best option for dealing with conflicting realities.”

However, as not every dialogic process is effective in reducing hostility and aggression, it defines as transformative dialog any form of exchange capable of transforming the relationship between people committed to separate and antagonistic realities, into a relationship capable of building common and lasting realities. It is a process with the intention of modifying defensive or aggressive positions in cooperatives, redefining the other in the relationship, identifying common goals, re-dimensioning the “we” and building possible futures of coexistence. It is a conversational form that emphasizes relational responsibility.

In this universe of theoretical beliefs and compatible actions, the words of Dora Schnitman (1996) reinforce the transforming power of conversations: “worlds created in conversation constitute virtual realities that, once created, have existence and are sustained as realities”. alternatives." (page 258) Believing that there is no useful knowledge that is generic, we do not intend to arrive at a set of rules or procedures, but rather to identify cultural forms that generate good results, which meet our purposes of improving relationships between beings. humans with different assumptions or antagonistic.

Among these cultural forms, we identify Transformative Mediation and Restorative Justice as conversational practices interested in a relational view of society. They question the structures and actions of our social institutions defined by an individualistic vision that privileges the rights of individuals and encourages individual competition. Considering human interconnection, their proposal is to promote the improvement in the quality of relationships and the development of a citizen-subject of a society democratic.

Transforming Dialogues

  • Transformative Mediation: Mediation emerged with the aim of resolving disputes and promoting agreements that mutually favor the parties. Throughout its development, other results emerged from the practice of Mediation, as a side effect but desirable.

It was observed that Mediation, in some cases, produced a modification of the relationship between the parties and transformed the competitive relational pattern into a collaborative one.

The Americans Robert Bush and Joseph Folger (1994), considering these effects as valuable for individuals and for society, developed a model of practice: Transformative Mediation, which shifts the main objective of obtaining agreement to transforming the relationship between parts. In this approach, even the result of the impossibility of an agreement is considered as success if a new vision of the situations is achieved.

Based on a relational view of society, they believe that conflict and its ways of resolving it constitute an opportunity to develop and integrate the capacities of individual strength and empathy for others.

Its methodology was developed to work on conflicts of interest between people who have a history of living together, or who wish to preserve a bond after the conflict has been resolved. It operates on the fundamental principles of individual empowerment and empowerment, and of consideration and recognition for the other.

  • Restorative Justice: from a historical perspective, it is a new concept of non-punitive justice, developed in different parts of the planet, which aims to repair the damage caused to individuals and society in situations of violence.

Whether it originated, around the 70s, from mediation between victims and offenders (Paul Mc Cold and Ted Wachtel), or whether it emerged from a reflexive stance on the part of New Zealanders who looked to the ancestral practices of their aborigines for resources to deal with On fundamental issues such as social injustice (Charles Waldegrave), restorative practices aim to redirect the focus of the culprit and the violation of the laws towards repairing damages, meeting needs and involving the community in the process.

common purposes

Both practices:

  • question our modernist traditions centered on certainty and objectivity, they operate from the single truth to the contingency of facts, from individual guilt to relational responsibility, from judgment to meeting needs and interests.

  • they focus on the transformation and restoration of interpersonal bonds threatened by disagreements, with or without the explicit presence of violence, and positively connote the expression of conflict. In this way, they do not intend to eliminate it, but offer more effective and constructive alternatives to manage it.

  • privilege the preservation and restoration of relationships, do not focus on punishment and retaliation, but seek to build relational agreements for the present that enable coexistence in the future.

  • build conversation contexts guided by mutual respect and respect for the voluntariness and autonomy of participants, guarantee human rights and the right to dignity of everyone.

  • believe in the competence and personal resources of the participants; the third facilitator only leads the process to help them ponder and decide what they want to do about the issue or problem they are facing. facing up.

different actions

  • Transformative Mediation operates in meetings where the parties involved in the conflict are helped by the mediator to express their point of view on the issue, listen to and understand the other's points of view, find points of common interest and negotiate agreements to obtain mutually acceptable results.

The mediator privileges meetings where both are present, and explores the benefits of listening among the mediated, exercising their own listening to identify and expand points of dialogue where there are signs of individual strengthening, useful for clarifying and deliberating decisions. And, it also focuses its attention on moments when there are signs of recognition towards the other, amplifying them so that decisions are made from the self, taking the other into account.

  • Restorative practices operate in encounters between those who caused harm, those who suffered it, with the consented and voluntary participation of people who them support, such as family members, authorities, lawyers, social workers, among other professionals.

The community is encouraged to participate as a party affected by the damage, and/or as a collaborator who will offer support, and/or as “the other” in the social relationship with whom they are responsible and with whom they are committed to the agreements made. They seek to share the experiences, obligations and responsibilities of all those involved in a situation of violence.

Relevant points

  • On Transformative Mediation: in both conversational proposals, special attention is needed to the differences in power and competence, to the socio-economic and cultural peculiarities between the members.

Mediation uses the resource of delimiting the context of what will be negotiable and what will not be discussed, respecting the legal limitations of some themes and the unique standards of each relationship. This step makes it possible to operate non-hierarchically and establish a balance of power between the parties, guaranteeing the right of active participation to all and preserving the authority of responsible figures - parents, mediators and Lei

This is what Tom Andersen (1995) describes as heterarchy: “The government hierarchy from above, while the heterarchy is carried out through (...) a relationship in which all participants have equal importance”. (page 16)

This concept of heterarchy – through and equal importance – considers the differences between everyone involved in the conversation and favors a posture of greater authorship in the participation of each one and in the proactive search for their place of comfort in the interaction. It allows each one to participate with 100% of their competence, while expressing a sharing of power among all.

  • From Restorative Justice: decision-making, which is necessary in both practices, has often put us in the face of difficulty and unpreparedness for such. Historically we can identify that one of the main questions to modernist standards is the presence of moral and ethical codes, elaborated by philosophers and legislators, and built by the rationality of an intellectual elite. The belief that men would be limited to make rational and correct choices given the blindness of emotions, generated the construction of “correct and universal” laws – according to this point of view – and their exaggerated control. Man was thus deprived of his right to choose because he was discredited in his ability to make moral decisions correctly. It follows from this period that, in postmodernity, with the flexibilization of ethical and moral standards, we find ourselves unprepared to take responsibility for our decisions, often shifting our choices and obligations to the legislators.

One of the resources we have nowadays is present precisely in restorative circles, where voices of different social actors in conversation – victim, aggressor, legal practitioners, family members, neighbors, support groups – discuss in search of a consensus. In a Habermas proposal, consensus is not a full agreement between people with respect to any topic of discussion. “Consensus is an agreement, partial or not, reached through argumentation and not through imposition (either by economic power, by the police power of the State, or by non-state violence). What characterizes a Habermasian consensus is not the content, but the way in which one arrives at the formulation of notions about any area of ​​life. In this case, it is possible to formulate consensus where the parties involved have disagreements regarding parts of the content they are talking about.” Paulo Guiraldelli (Brazilian Philosophy Portal – Internet)

These restorative circles offer us the possibility of moving from heteronomy to rule autonomy, giving us back the right to moral decision generated in the conversational exercise between different voices. Actions like these give dignity back to emotions by considering them as the foundation of decisions taken from them and in relationship.

As Transformative Dialogues that have Common Purposes and operate with Distinct Actions, both practices – Transformative Mediation and Restorative Justice – focus on individual and relational responsibility that occurs in a transformative and restorative encounter. The recently released account of a restorative circle illustrates this very well:

– The circle happened due to an episode of violence between a teenager and a plainclothes policeman. In the presence of people who were significant affectively to each of them and affected by the issue, the police officer said that at the moment he was robbed he reacted, drew his weapon and did not shoot. At that moment, he made a decision between life and death: on the one hand, voices (internal) from colleagues said “Kill!”, and on the other, voices that said “There is something good in that (adolescent's) look!”. And he added which it was one of those moments when “I'm the only one who knows about me and is in charge of me”. Following, he comments that he chose to defend himself, immobilizing the boy without killing him and that to this day he suffers criticism from his colleagues for not having shot to kill; looking into the teenager's eyes, he said: “I don't regret my decision because you are here and I can tell you all this and you can listen to me; and that could make a difference to your life. Now you choose!”.

This account shows the strength of this individual and relational responsibility, where the principles of empowerment are clear - identifying their needs, recognizing themselves as capable of good and bad actions, choosing and taking responsibility for them - and consideration for the other - valuing the relationship by identifying oneself and the other as mutually important.

These re-descriptions produced in encounters like these are an exercise in human solidarity created as Richard Rorty (1994) puts it, “with our increased sensitivity to the specific details of pain and humiliation of other, unfamiliar types of people. … This process of coming to see other human beings as “one of us” and not as “them” is a matter of describing in detail what people who are not familiar are like and re-describe ourselves. ”

Considering the development of a citizen-subject of a democratic society, we could say that “becoming a citizen” (Monconduit-2006) is something that is built daily through acts and behaviors, inseparable from our convictions and our choices. It's acting with and on you. It is to be sovereign of yourself.

Finally, the new postmodern paradigms offer us the opportunity to build new forms of conflict resolution, at the same time that we rebuild our relationships and ourselves.

If we consider Z. Bauman's (1997) claim that the great themes of ethics have not lost their validity in postmodernity, but only need to be seen and treated in an entirely new way, we can look at these cultural forms – Transformative Mediation and Restorative Justice – as an instrument to rescue human ethical capacity in contemporary times.

References

ARAUJO, NB AND YAZBEK, VC Conversational tools: Praxis in social constructionism – Cadernos do Familiae Commemorative Edition. São Paulo : Casa do Psicólogo, 2001, p. 25 - 31.

BAUMAN, Z., Postmodern Ethics – Paulus, São Paulo, SP, 1997.

FOLGER, JP, BUSH, RB, Transformative Mediation and Third Party Intervention: The Trademarks of a Transformative Professional – New Paradigms in Mediation – Medical Arts, Porto Alegre, 1999, Cap 5, p. 85.

GERGEN, K, Towards a Vocabulary of Transformative Dialogue. In SCHNITMAN DF(Org). New Paradigms in Mediation., Porto Alegre : Artes Medicas, 1999, Cap. 2 p. 29-45.

MCCOLD, P. and WACHTELl, T., In Search of a Paradigm: A Theory of Restorative Justice, Rio de Janeiro, RJ, 2003.

MORGADO, N., ARAUJO, NB, YAZBEK, VC Open conversations: flexible tools in hierarchical contexts. Family Systems. Buenos Aires, 2002, v. 18 n.3, p., 124-125.

SCHNITMAN, DF, Hacia unaterapia de lo emergente : construction, complexity, novelty, In MCNAMEE, S. and GERGEN, K. (Comp) Therapy as social construction, Barcelona : Paidós, 1996, Cap 14, p. 258

WALDEGRAVE, C., Therapy and Social Justice: Just Therapy with families and communities – São Paulo, SP., 2001. Chapter 1, Page 19