Justice, fairness and mediation
Justice, fairness and mediation

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3 Restorative justice

Another form of justice which has gained increasing awareness in recent years is restorative justice.

Payne and colleagues emphasise that the underlying processes of restorative justice have evolved from victim-offender mediation, family group conferencing, circle processes, and various types of citizen panels. Each practice shares a common element: the transfer of some decision-making authority from government to victims and offenders, their family, friends and other

(Payne et al., 2010, p. 10)

Unlike some of the more formal aspects of justice discussed earlier, restorative justice is an essentially informal approach to resolving and redressing disputes. As Eriksson argues:

Restorative justice has been presented as a response to crime that promotes inclusive dialogue, acceptance of responsibility, reparation of harm, and rebuilding of relations among victims, offenders and communities.

(Eriksson, 2009, p. 1).

In this regard, restorative approaches to justice differ quite significantly to those approaches which involve retribution for wrongs perceived to have been committed. This is particularly so when it comes to dealing with the challenges presented by youth and juvenile offenders:

Our society’s common understanding of the need for juvenile offenders to be held “accountable” is closely linked to the concepts of punishment and retribution “when you violate the law, you incur a debt to society.” In this – viewpoint, offender’s are held accountable when they have received or taken a sufficient amount of punishment.

In the restorative justice paradigm the meaning of accountability shifts the focus from incurring a debt to society to that of incurring a responsibility for making amends to the victimized person; from passively taking punishment to actively making things right. Rather than emphasizing punishment of past criminal behavior, accountability in the restorative justice paradigm taps into the offender’s strengths and competencies to take direct and active responsibility to compensate the victim for material or emotional losses.

(Umbreit, 1995, p. 31)

The key differences between retributive and restorative justice are summarised in the table below:

Table 1 Differences between retributive and restorative justice

Retributive Justice Restorative Justice
Crime defined as violation of the state Crime defined as violation of one person by another
Focus on establishing blame, on guilt, on past (did he/she do it?) Focus on problem-solving, on liabilities and obligations, on future (what should be done?)
Adversarial relationships and process normative Dialogue and negotiation normative
Imposition of pain to punish and deter/prevent Restitution as a means of restoring both parties; reconciliation/restoration as a goal
Justice defined by intent and by process: right rules Justice defined as right relationships; judged by the outcome
Interpersonal, conflictual nature of crime obscured, repressed; conflict seen as individual vs. state Crime recognised as interpersonal conflict; value of conflict recognized
One social injury replaced by another Focus on repair of social injury
Community on sideline, represented abstractly by state Community as facilitator in restorative process
Encouragement of competitive, individualistic values Encouragement of mutuality
  • Action directed from state to offender:
    • Victim ignored
    • Offender passive
  • Victim and offender’s roles recognised in both problem and solution:
    • Victim rights/needs recognized
    • Offender encouraged to take responsibility
Offender accountability defined as taking punishment Offender accountability defined as understanding impact of action and helping decide how to make things right
Offence defined in purely legal terms, devoid of moral, social, economic, political dimensions Offense understood in whole context – moral, social, economic, political
“Debt” owed to state and society in the abstract Debt/liability to victim recognized
Response focused on offender’s past behavior Response focused on harmful consequences of offender’s behavior
Stigma of crime unremovable Stigma of crime removable through restorative action
No encouragement for repentance and forgiveness Possibilities for repentance and forgiveness
Dependence upon proxy professionals Direct involvement by participants
(Zehr, 1985)

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