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What is Restorative Justice?

What is Restorative Justice?

When used in criminal justice, restorative justice (or restorative practices) brings victims and offenders into communication in order to address the harm and the real impact of the crime, and collectively decide on a positive way to move forward. Its principles and practices are also applied in workplaces and schools to help resolve conflict and prevent bullying, and in post-conflict societies to encourage reconciliation and national healing. In this interview, I learn all about the theory and practice of restorative justice.

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Full Transcript

Aled: Hi everyone. My name is Aled Davies, founder of Home of the passionate mediator. You know what we do on here. We interview the very best mediators and thought leaders from right around the world. This is the place for us to learn about new opportunities in our field as well as how to overcome some of the challenges and dilemmas of life as a mediator so that we can ultimately learn, grow, and improve our effectiveness.

Restorative justice, I think is a strand of mediation that doesn’t get a lot of coverage, and yet from what I read, it can make a real impact on peoples lives. In this interview today I’ll be learning more about restorative justice, the practice, the principles, the benefits, and how you can get involved if you’re interested.
My guest today is a criminologist and PhD student studying restorative justice at the University of Leeds School of Law, where he also lectures on the subject. He’s conducted research for a number of organizations including, Restorative Solutions, The Restorative Justice Council, Search for Common Ground, and The United Nations Office of Disarmament Affairs. He’s trained as a restorative justice practitioner and is the founder of The Community of Restorative Researches. It’s a real pleasure to welcome Ian Marder onto Mediator Academy. Ian, welcome.

Ian: Thank you very much, I’m very glad to be here.

Aled: Ian, what is restorative justice?

Ian: Restorative justice is an umbrella term. It’s used to refer both to a set of principles and a set of processes, which are underpinned by those principles, which I typically tend to refer to in restoring practices, which can also be referred to as restorative justice, restorative processes, or restorative approaches.

Some of these terms, like restorative approaches, you would tend to use if it were being used in the workplace or in schools. But my personal focus is on the use of restorative justice in the criminal justice process. I tend to talk about it in terms of victims and offenders, but really what we’re talking about is people who have caused harm and people who have been harmed.

Aled: What’s the underlying philosophy then, or the core principles?

Ian: It’s basically… Brunilda Pali, an academic at Leuven, says that restorative justice is a normative discourse on how justice should be done in a democratic state. What she’s saying is that democracies are underpinned by a number of values around things like social justice, human rights, and quality of opportunity. But what we might see as traditional criminal justice processes doesn’t necessarily reflect those values.

They see our justice process as focusing on retribution at the expense of the needs and interests of those most closely affected by crime. You might see restorative justice as being diametrically opposed to retributive justice in a number of ways.
While our criminal justice process asks things like, what law was broken? Who broke it? And, what punishment do they deserve? Restorative justice asks, who has been harmed, what are their needs, what obligations arise as a result of the harm being done? And what is the appropriate process to involve stakeholders in an effort to address the causes of what happened and to put things right?
The principles that underpin these processes can be split into those that relate to the process itself and those that relate to the outcomes. In terms of the process, you basically want to identify parties where the stake in the offense and empower them so they can be included in deliberation and decision making processes. That’s stakeholder inclusion. That’s one of the key principles. This has to be voluntary, so voluntariness is another key principle.
It’s also about an approach to crime that’s flexible enough to be responsive to the needs and interests of the stakeholders and increase the likelihood of their needs and interests being satisfied. It also says, essentially, that our emphasis should be on participation, communication, relationships, and negotiate agreement. These principles aren’t exhaustive. This is just a lot of people are undecided about which ones should go on the list. I kind of just put together, broadly, my list.
In terms of the principles that relate to outcomes, basically what you’re trying to achieve is repairing the harm done by crime, reconciling the relationships broken or affected by crime, and reintegrating those affected by crime back into society. Really it’s about repairing the harm that was done.

If you imagine that you have people start out on an equal playing field and then someone harms someone else, then that person comes down here. In the traditional justice process, the idea would be to impose a proportionate amount of harm on this person to bring them down here, thereby leveling things out. What restorative justice says is that it’s this person’s responsibility, and society’s more broadly, to help bring that person back up here. The idea is kind of meant to be a more positive approach to crime and conflict.

Aled: Where did it all begin? Where did it all start?

Ian: One thing that a lot of scholars in this field note is that these are not necessarily new ideas and a lot of them can be found in ancient legal systems like Ireland and Mesopotamia, whereby most penalties were around restitution compensation and stuff like that. But also indigenous practices in North America, New Zealand, and places like that, where they didn’t have a distinction between criminal and civil law. It wasn’t that sometimes you harm a person and it’s that person’s responsibility to sue you to get it back, and then sometimes you harm a person and the state takes over and imposes punishment on you. It was just that they had conflicts between persons, which they knew had to be solved because they lived in very tight-knit communities.

The modern reemergence of restorative justice came about for a couple of reasons. First, it’s a direct critique of the Anglo American justice process, particularly in places like New Zealand and Australia, where indigenous groups felt that the justice process wasn’t culturally responsive. Also, it’s commonly seen, and it’s coming from Ontario, which is where I’m from, where there was a strong Mennonite presence in the ’70s, who basically wanted a more humane way of doing justice. Also, it’s about the victim’s movement, who felt that the needs and interests of victims were being ignored by justice processes.
The main author on this is this guy Nils Christie, who wrote a really good article in the ’70s called “Conflicts as Property.” He basically sees crime as a conflict between individuals and then that conflict, which is our property of the individuals, is stolen by the state, by justice agencies and professionals. From then on, it’s the state and the professionals, rather than those most closely involved with stakeholders who decide what is important and what should happen.

Aled: It sounds like then, there are some assumptions embedded in the restorative practice or restorative justice process that you can rehabilitate an offender, they can make a positive contribution to society and it’s their responsibility to make amends for what they’ve done, rather than punishing them… I’m digressing here, but when you were talking…

Ian: No, it’s okay.

Aled: I was thinking about how I resolve conflict between my children. You start off wanting one child to apologize to the other for whatever they did. But then you’re coercing them into that apology, because if you don’t say sorry, then rather than wanting them to do it out of the generosity of their own heart.

I’m not quite sure where I’m going here, but it sounds to me that I guess the aspect of voluntariness, the principle of voluntariness is that one hopes that the offender would come to the table with some sense of compassion, or generosity of spirit, of wanting to repair the situation, or to make amends. Part of that outcome then, is that from the victim’s perspective, their faith in humanity is marginally restored, so that’s got to be a positive thing. Something that you said sparked a thought in me, but I can’t really [inaudible 00:09:18].

Ian: No, that’s okay. It’s really interesting because I think you identified a couple of important points there. You’ve got this idea that in criminal justice now, you have the passive offender, where something is done to them. Whereas restorative justice is about having an active offender, where they have obligations to put right the harm that was done. It’s also about having an active society and John Braithwaite talked about this idea that restorative justice is a very democratic thing. If you’re widening the circle then you’re getting everyone involved, and it’s everyone’s responsibility, really. Crime is a product of social condition.

Aled: At the heart of it is also this notion of accountability as well. Facing up to taking responsibility for your behaviors and the intentional or unintentional consequences of those behaviors and holding yourself accountable.

Ian: It’s also true of you being made accountable too. In the criminal justice process, it’s the crown against you. You’re being held accountable to the states, in abstract, kind of as a representative of the community, almost. Whereas in restorative justice you’re being held accountable directly to the person you’ve harmed.

Aled: Are there particular crimes or particular cases that restorative justice is better suited to have more productive outcomes or better results than others?

Ian: First of all, if the evidence is mixed. There are a lot of studies that suggest that it’s not that effective, in terms of re-offending, for cases of drinking and driving where there is no victim. So if you’ve been caught drinking and driving, you have to do something like this. Some of the evidence shows that it’s not that effective, although more recent studies show that maybe it is a little bit effective. It really depends…

Aled: How would it work? Sorry. How would it work if you were caught drinking and driving? Who are you sitting across the table with?

Ian: These would be sort of victim empathy and victim awareness stuff. You might have a surrogate victim in that situation. I mean there have been a number of studies done on its use with minor offenses and serious offenses. There was one study from Australia on its use with sexual assaults, which showed that it was really quite cathartic for victims. Especially in cases where an offense is random but you blame yourself.

Burglary can be quite good as well, because in burglary, people think that they’ve been targeted or they worry that they’ve been targeted. They worry that they are to blame. Just to be told that it was random is very much a weight off people’s shoulders. You’ve got to think that there are multiple aims here. Even if its use does an impact on re-offending, if it’s cathartic for the victim…
There have also been studies that suggest that it’s quite good for reducing posttraumatic stress systems. Especially things like fear. Research that I did in the North East with victims who had been through restorative practices following burglary. These are all people who the offender had been sent to jail and they used a restorative practice in the jail with the victims. They said things like, in their heads they built this person up to be towering over them, huge and scary. Then they meet them and it’s just a kid. That, as you say, can restore people’s faith in humanity a little bit, make them less suspicious of people, and just generally help them to move on and be less scared from the incident.
In terms of evidence around victim satisfaction, that’s probably where the most positive evidence is. There was one major study in the UK… It’s difficult to get really good evidence because it’s difficult to get control groups. What one study in the UK, and it was funded by a home office and conducted by Joanna Shapland and others at the University in Sheffield.
They did have a control group, insofar as they offered it to a number of people, and then of those that said yes, they only gave it to half of them. That’s quite important because some studies have shown 80% less re-offending. That’s absolutely huge numbers, but you have to take into account that those who have said yes to doing it voluntarily might already have been less likely to re-offend anyway. What this study showed was around 14% lower re-offending, which doesn’t sound like that much, but it’s quite significant…

Aled: It is significant.

Ian: …with some of the other interventions and how they perform. Fourteen percent is quite significant and the overwhelming majority of cases that were in the study were quite serious crimes. Crown courts, burglary, aggravated assaults, and what would typically be considered quite serious crimes, like persistent offenders. That study showed, I believe, 85% victim satisfaction, which is in excess or double what you would find if someone had just been through the court process.

Aled: Fascinating. That’s really, really fascinating. Tell me a little bit about the process. How does it work?

Ian: That depends on how it’s being used at what stage of the justice process we’re talking about. For example, you could use it at any stage of the justice process, in theory, so you could use it instead of someone being arrested. You could do it after someone’s arrested, but instead of them being charged. After they’ve been charged, but instead of them being prosecuted. Also legislation just was passed in England and Wales, to allow judges to defer sentencing. So they’ve been convicted, but they haven’t been sentenced yet, during the sentencing, to allow it to take place at that stage. You could also have it as part of the sentence or you could have it once someone has finished their sentence. So the process will be different at different times.

The guidelines that are typically followed or typically spoken of are The Association of Chief Police Officer Guidelines, which basically say that you’ve got three levels. You’ve got level one, which would be on the spot. You can imagine a situation where a young child steals a chocolate bar from a shop. It’s their first offense. They get caught. Rather than arresting them, if everyone agrees, the cop takes them to the store and they have a discussion with the store people or something like that, where all of this takes place.
When I say all of this, what I’m talking about is first of all, you have a series of questions that are meant to address the harm that was done. Everyone has to talk about who was affected and how they were affected. Secondly, you have collective decision making on the outcomes. That should be common to any restorative practice. Level one being on the spot.
Level two and level three would be what they call formal restorative conference or formal restorative practice, whereby you would get everyone together, much like in mediation. I wouldn’t say it’s a type of mediation. I would say it’s a type of ADR. You can certainly have mediations that adhere to restorative principles. In fact, one of the main practices used is called victim/offender mediation.
More typically you’d have restorative conferences. You might have the facilitator, who’s essentially the mediator, and then one or more victim or offender. Then you could have the supporters of either of those peoples. If the offender is a kid, you might have their parents. If the victim is an adult, you might have their spouse or adult-child, or something like that, or a friend. Then you might also have volunteers from the community. That’s not particularly common in some restorative practices.
In other restorative practices, such as referral order panels, which is mandatory for judges to give referral orders to under 18, if it’s the first time they’ve gone to court, if they pled guilty, and if it’s not an extremely serious offense. There you would have community volunteers, what they call panel members, who also are engaged in this discussion.

Aled: Okay, so you have tier one, tier two, and tier three involved in restorative justice practition [00:17:39].

Ian: [inaudible 00:17:39] saying that. Just to clarify tier two and three, the difference would be that tier three would be a particularly complex case or particularly serious case. The idea of breaking it down like that is just so you would require additional training to facilitate [inaudible 00:17:54] restorative practice.

Aled: Let’s say it’s been offered to a victim and an offender. Is that how it’s done or would the victim request it or is it not…

Ian: Yeah, it totally depends on the situation. I mean in England and Wales, practice is very fragmented. It happens in different ways in different parts of the country. Even within a part of the country it might happen a different way. Again, that depends on the different stage of the justice process. At the minute they’ve got this idea of, on one hand you can have offender led restorative practices where the offender asks for it first. On the other hand, you can have victim led restorative practices. To me it doesn’t really matter. It’s just about… To me, everyone is equally important in this situation.

Aled: How easy is it to access those sorts of resources? How widespread is the service in the United Kingdom?

Ian: Again, it depends on different parts of where you are in the United Kingdom. I don’t know too much about Scotland. I know that in Northern Ireland, there are fairly comprehensive capacities [inaudible 00:19:10] because they actually have a youth conferencing service. So they have a professional, essentially a justice agency, which handles all of these cases.

In England and Wales on the other hand, it totally depends on the area that you’re in. A few years ago you could only do this in some places. There is this idea of moral entrepreneurs, which is basically where someone finds it, likes it, and implements it in their area.

The first one in modern times is Charles Pollard of Thames Valley Police, who went to Australia or New Zealand. I can’t recall which. He saw people doing it, and he very much liked it, so he implemented it across Thames Valley. It’s what you call a post-code lottery, where basically in some places there’s no capacity and in some places there is capacity.
More recently there has been significant growth in capacity because police and crime commissioners have just been given money to invest in it. So in a lot of places that money has gone to the police, if they have the history of being facilitators themselves, with its own set of interesting set of implications. In some places that goes to partnerships, so like in Gloucestershire, Northamptonshire, and Cambridgeshire, they’re setting up partnerships or a partnership is already in place.
If you look at Durham as an example, in some parts of Durham the police lead on delivery, whereas in Darlington there’s volunteer led delivery. So you have what’s called a neighborhood justice panel of which there are several dozen now across England and Wales. That’s basically where police or someone else refer cases on to this group of volunteers who deliver the cases themselves.

Aled: I’m curious as to how far developed it is in Northern Ireland. That’s no coincidence, right? Given the history…

Ian: Basically the situation was in 1997 they had a chance to redo their justice system in quite a radical way. There are a number of implications, one of which was that their policing Ombudsman are far more independent than in other parts of the UK. That’s quite an interesting example. Also, they were able to set up this system. Actually they have legislation in Northern Ireland, which says that judges, I think, are compelled to refer cases to restorative justice at the pre-sentence stage, apart from in the most serious cases.

Then you have the restorative practice take place if everyone agrees to it. It’s not just if everyone agrees. You have to have a trained facilitator sign off on the idea that it’s safe because you definitely couldn’t do it in a case where it wouldn’t be safe. Then what happens is that the outcome agreement is given back to the judge and they can sign off on that as a sentence, although they also have the power to say, “No, I’m going to give an alternative sentence.”

Aled: Okay, that’s interesting. I want to go back to the process itself. You talked about tier one, where the law enforcement officer would bring the two parties together, and there would be a series of questions and then sort of collective decision making about the outcome, right? If we looked at the tier two examples where you had the restorative practitioner facilitating the discussion or the meeting, break the meeting down for me into the stages. What would happen? What’s the process up to the point of that collective decision-making?

Ian: In level two practices, in a formal restorative conference, you would want at least 90 or 95% of the work to take place prior to it. I’m sure it’s the same in mediation [inaudible 00:23:09]. The preparation is essential, especially in a more complex case. You would have the facilitator, first of all, doing a risk assessment, but also have a number of meetings with every single person who’s going to participate, in which they try and work out… You know, they don’t want to be surprised.

They want to know exactly what people are going to say, more or less, and exactly what’s going to happen. They want to be able to understand the likely dynamics between the participants. One problem might be, for example, that if you have a child as the offender, their parents might talk over them or interrupt them or do any number of things. The facilitator needs to be aware of what’s going to happen beforehand in order to try and prevent it from happening.

Aled: I just want to pause for a moment. Risk assessments, what would be involved in that? What would you be looking for? How would you evaluate the risk?

Ian: Like any risk assessment, it’s very subjective. What you’re looking for is, is there a chance of harm to any party? If there is, it’s maybe worth discontinuing the process.

Aled: We’re not talking physical harm? Well, we might be, but…

Ian: It could be. But no, primarily it would be emotional and psychological. If the victim just isn’t up to it, for example, then they obviously can’t be coerced into participating. Or there might be cases where the offender has agreed to participate, but maybe it’s a clear indication that they’re not going to take it seriously. That could be quite devastating for victims, so you want to stop it in that situation.

Aled: Got you. Okay. All right. Carry on.

Ian: In terms of the process you would basically have everyone in circle has to say why they are there, and what their relationship is with the incident. Then you would have these series of what I call the restorative questions. That would be, what happened from your perspective? How has it affected you? Who else do you think has been affected? Stuff like that. It’s meant to be “addressing the harm.” Then once that’s gone around, and it might go around a couple of times, there might be some debates.

Although typically, in almost all cases, the offender is required to plead guilty prior to this. You have to have the offender accepting responsibility for the incident. That gets more complicated when it’s used with non-crime incidents or even with criminal cases. You might have, quite often, that they’re both offenders and they’re both victims, in reality. Or in non-crime situations like a community dispute, various disputes over the facts of the case and they have to deal with that.
Then you would move on to designing an outcome agreement, where everyone would get a chance to say what they think the outcome should be. Then the facilitator has to try and put something together. Ideally, in theory, everyone is supposed to put it down on paper and everyone is supposed to sign it and that’s it.

Aled: Just give me an idea of an outcome agreement. What are the sorts of outcomes one would expect or experience?

Ian: That depends on the stage of the process in which you’re doing it. Quite often what victims want is their pain acknowledged, and to have what they call symbolic reparation or an apology. Actually, people would be quite surprised at how many people accept that, as basically that’s what they wanted. You might also have compensation. If someone broke your window they might have to pay it back. Or you could have a situation where, especially if it’s a kid and they do something like criminal damage in a house with some old people, they might help them with the gardening or something. It really does depend.

Equally if you use it at the post-sentence stage there might not be that much the offender could do. It might just be assurances that they’re never going to do it again. It might also be stuff relating to interventions for the offender. For example, if one thing that they need is drug treatment, one person in the group might insist that drug treatment is put on this list, which is quite interesting for a couple of reasons. First, because there isn’t the capacity everywhere in the UK to deliver a good quality drug treatment. So you have the problem that you might have stuff in this that actually can’t be delivered, which can be a problem in some places.
The second thing around this issue is this thing called defiance theory, which is the idea that people are much more likely to comply to something if they feel like they have been involved in the decision-making and they’ve agreed to it, then if not. There is some evidence in Northern Ireland which suggests that with things like drug treatments, offenders are much more likely to comply if it was decided through a restorative practice than if a judge had imposed it on them.

Aled: That comes back to the notion of accountability and someone making a free and informed choice to take responsibility for themselves and their actions.

Ian: Absolutely.

Aled: That’s very interesting, very interesting indeed. How does someone get involved? Who gets involved in this? What are their motivations? And what’s the training involved in becoming a restorative justice practitioner?

Ian: Quite often it is the justice agencies that deliver practices themselves, so it’s police, probation, or prison officers. There is also some non-state actors, like victim support in some areas has contracts delivering restorative practices. For example, there’s a social enterprise called Remedy, in Yorkshire, that delivers a lot of stuff in South Yorkshire. I believe they just got a contract with North Yorkshire. But what is increasingly happening is the justice agencies are recruiting volunteers from the community to be facilitators.

It might be worth looking for neighborhood justice panels in your area. Sometimes they’re called neighborhood resolution panels or community justice panels. There’s any number of different ways of calling them. For example, in Darlington the council runs it whereas in Bradford I believe its run in a partnership with victim support and some other justice agencies.
Individual justice agencies are also in the process of recruiting volunteers. For example, where I live the HMP Leeds Prison is recruiting volunteers for delivery as well. There are chances to get involved. In terms of training, whoever recruits you will either deliver or commission training. Typically the training is quite short, in my view, with maybe three days. But in some places they deliver much longer, perhaps much better training. For example, in Darlington Neighborhood Justice Panel, they set up their own training process, which takes a number of weeks.

Aled: I would imagine someone… I’m just thinking about the risk assessment you talked about earlier. To what extent would I need some sort of training? Real good understanding of, I don’t know, some of the psychological phenomenon that might be alive in that sort of conversation, to be able to know, to intervene, or to just decide to hold on a second because this isn’t going in a good direction.

I’m just thinking. I did one community mediation awhile back. It was just between a couple of neighbors and it wasn’t overtly… I didn’t feel like things were getting out of control at all. But there was just something going on in the room that I couldn’t put my finger on, between the two parties, that led me to stop the mediation. I said, “I have some concerns” but I couldn’t articulate what they were.

There was something going on in the interaction. I don’t know if it was transference on my part or whether it was something. I just left. I stopped the mediation and then I sort of left. I was left feeling like I was at the edge of my threshold of knowledge of experience to be able to manage that in a different way. I sat down with my supervisor and we concluded that I did manage it well because I stopped the mediation. I’m thinking about the level of training and development for somebody involved in this in being very important and rigorous, just to avoid any potential ramifications.

Ian: You’re absolutely right. I think that quite often the training is maybe not comprehensive enough. In a lot of places they use a script, so the facilitators have a restorative script that has these questions on it. Anecdotally people say it works very well, and people who do use it say they don’t really have to mediate from this and that usually it all kind of flows fairly well.

Personally I think there is scope for additional training on the psychology of conflicts. Everything that Ken Cloke talks about is all stuff that I think people should know. Also, non-violent communication, I think, is something people could be trained for in this field. Basically the reality is that justice agencies have very tight budgets. Most of them have been cut by 20 or 30% or even more than that in real terms. This might be one of the reasons why they’re moving towards volunteer recruitments, is they’re basically out of money, unfortunately.

Aled: Where do you see the potential in restorative practices?

Ian: What do you mean?

Aled: Where do you see it heading? Do you see this great potential in changing attitudes? Changing behavior in communities? You’re clearly passionate about this and incredibly knowledgeable about this. What are your hopes and aspirations?

Ian: I guess I would want everyone to be offered this. I think it would be a good idea. It’s not always appropriate and certainly, in my view, it can’t replace courts and the criminal justice process, on account of the fact that it can’t be used to determine guilt. That’s one reason we still need the courts. Also, because some people need the protection that the court offers, so it certainly can’t happen in every case. I think that it should be offered to everyone and there should be the capacity to deliver it safely and effectively for everyone who wants it.

I also think there’s a lot of capacity for it to be used in schools, with young people generally, and in community disputes. It’s increasingly being used by housing associations that have to deal with what they would call ASB incidents, which is Anti-Social Behavior. Also there is a lot of scope for its use in post-conflict societies. The principles can be applied to what they call transitional justice and that’s exactly what happened in South Africa with the Truth and Reconciliation Commission, whereby a lot of people wanted to prosecute the offenders, who in this case were people who committed crimes against humanity, against the black population and dissidence. What Mandela and other people said was, actually we have other priorities, which is reconciliation and truth telling.
Those principles have been applied to more or less of an extent, in Northern Ireland as well, but strictly by non-state actors who are doing a lot of very good work in the communities there. A lot of good reconciliation work. In Morocco there was some use of these principles of transitional justice process, particularly in a truth-telling aspect. But no, at the minute, I mean international criminal justice is mainly of the adversarial type, which is about focusing on prosecution. So I think there is a lot of scope in that situation. Even pre-conflicts, for these sorts of principles to be applied in order to prevent or reduce the harm that’s done.

Aled: It’s interesting. I interviewed Richard Susskind recently. He talks about and is passionate about online dispute resolution and he talks about rather than putting an ambulance at the bottom of the cliff that we should just put a fence at the top of the cliff. Rather than that sort of adversarial of dealing with the problem once it’s happened, what preventative measures can we introduce into our justice systems and justice processes to stop people from falling off, or jumping off, or pushing others off, metaphorically speaking.

Ian: I certainly think there’s a lot more scope in almost every aspect of government in the UK at least, and in other countries, to be more proactive and less reactive. But the problem with that is that it requires investments in the near term in order to achieve long-term objectives. Unfortunately for the government here, and justice agencies, and everyone, it’s very short term.

Aled: It also requires, I think, just a change in mindset, a change in attitudes, and a change in philosophy. You’ve talked about these philosophical underpinnings of restorative practice and how it rubs up against the more punitive philosophies of our justice process.

Ian: Absolutely. One of the most famous authors in this field is a guy called Howard Zehr, who is a prophet in Eastern Mennonite University, in Pennsylvania. His book from the early ’90s, which has been one of the most influential in this field, was called, “Changing Lenses.” It’s basically this exact idea that you’ve just talked about. It’s the idea that in many ways, although there is some debate around this and I’m not entirely convinced, but retributive justice and restorative justice are to some extent, diametrically opposed. It really requires changing lenses and changing the way that you see things.

This is what is quite interesting about the use of restorative justice in criminal justice processes and by the justice agencies, is that lens change has not necessarily happened. So what you have is a massive gap between theory and practice. You have what might be called restorative justice being co-opted by existing rationales. You have the rationales of managerialism, which is that you want an efficient public sector treated like a business to sort of go through as many things as possible.
Then you also have the punitive approach, so you might have what I’ve talked about before when I was talking about the police might do this or probation might do that. These are ideal types but in reality it could be far different to that.
Actually the way that restorative practices are being used in some parts of England and Wales, it does have the possibility of negatively impacting on due process and our human rights of the offender, in particular. You might have a situation where offenders are put under pressure to plead guilty in order to participate in this, which they wouldn’t have necessarily had a chance to talk to a lawyer. Or they might have got off had they gone through the court process, but they’re put under pressure to plead guilty.
It’s exactly something that you mentioned earlier about this idea of voluntariness. But if it’s do this or you get prosecuted, that’s not really much of a choice. So it’s quite interesting. They call that sort of [inaudible 00:40:40], whereby you have this threat of prosecution hanging over you, so you’re more likely to get involved in some alternative. That can be very problematic.
Another problem is that obviously participation is voluntary, but also the outcome agreement is voluntary and facilitators are not supposed to make suggestions as to what should be in there. So you could have a situation, and my belief is that this happens fairly often, and there is some evidence to support the idea this happens, even though the facilitators know they’re not supposed to make suggestions. They, not necessarily maliciously, say what about this, this or this? And everyone just says yes because of the authority of say, this police officer. So there are a lot of interesting things around.

There’s a lot of difficulties in implementing these principles in anywhere near a pure form in a criminal justice process which broadly does not adhere to those principles. So it’s very coercive and very much about punishment. How do you get the two together?

Aled: Very interesting. I mean just listening to you talking now I was thinking of the struggles of the mediation field in the UK is having and the tension between evaluation and facilitation and everywhere in between. To what extent does a mediator that evaluates or makes some suggestions interfere with the notion of self-determination? Unwittingly, with no malice intended. But because of who they are, one of the parties might identify them as someone in a position of authority and therefore defer to that piece of advice when actually…

Ian: Yes, quite right. I think that’s quite significant in sort of justice when justice agencies or part of the criminal justice process does it, certainly.

Aled: Then you’ve got in parallel to what you’ve just said there, if the mediator happens to be a lawyer or a senior barrister or a judge, with that experience and despite their best endeavors to remain impartial, or as Ken Cloke says, only partial. They can’t not influence the process. That is very interesting and a debate that I am sure will continue to roll on. One that I’m hoping we’re going to have burrow into a lot on Mediator Academy in the coming months and years.

Ian, someone wanting to find out more about restorative justice and wanting to get involved, where is the best place for them to start? Bear in mind that some people watching this are going to be based in America, Australia, Romania, Cambodia, and all over the place.

Ian: I think the approach to take would be to just Google restorative justice and then your area, and just see what’s going on in your area. There are a lot of places where it’s not used. There was actually very interesting documents published for free on the web by a Georgian university, whose name I can’t recall. It’s one of the Georgian universities, as in Georgia, USA. It had like a center for dispute resolution. Maybe we could post this below after the interview.

That document outlines all the state legislation and state policy in the US, which includes restorative justice. If you’re over here, if you’re over in Europe, it’s difficult to say. I would say Google restorative justice in your area. If you’re in the UK, there is a restorative justice council, which is a very good resource. If you’re looking to train. Yeah, I would say Google is your oyster.

Aled: Yeah, Google is your oyster. By the way, if people want to reach out to you and find out a bit more about the work that you’re doing and just say hello or thank you, what’s the best way of contacting you?

Ian: That would be absolutely fine. You can e-mail me on You could also, if you would like, I have this thing, the Community of Restorative Researchers that is meant to be a research network. But I’m very keen for it to be interdisciplinary, interprofessional, and international. We have practitioners, we have prosecutors, judges, teachers, and everything from every part of the angle. Everyone is welcome. You can find that on Facebook or LinkedIn. Please join and become part of the discussion.

Aled: Wonderful. I’ll post that underneath as well, so people can click through to that.

Ian: Okay, great. Thank you very much.

Aled: Ian, I’ve thoroughly enjoyed this. It’s been real…

Ian: As have I.

Aled: It’s been a real sort of education. I really appreciate it. I’ve been trying for months and months to interview someone on this subject. I’m just really glad that our paths have crossed. I’m sure people watching this now are going to be satiated after listening to you talk so authoratively and just eloquently on the subject. Thank you very much for your time.

Ian: Thank you very much.

About the mediator

Ian Marder Profile Pic

Ian is a criminologist and Ph.D. student studying restorative justice at the University of Leeds’ School of Law, where he also lectures on the subject. He was born in Canada, but has spent most of his life in Northern England. He has conducted research for a number of organisations, including Restorative Solutions, the Restorative Justice Council, Search for Common Ground and the United Nations Office of Disarmament Affairs. He is trained as a ... View Mediator