Emphasis
As a workplace, family, and community mediator and a restorative justice practitioner, I think of all the work I do as ‘restorative’. Mediation and Restorative Justice share fundamental principles and values. The major differences between them lie in emphasis. Restorative Justice (RJ) focuses on harm, the nature of the harm, and responsibility for that harm. In Mediation there is a conflict to settle and an expectation of resolution. In RJ, settlement and resolution are secondary and defined differently.
Resolution, Responsibility, Harm
In an RJ process, the emphasis is on the harm experienced by everyone involved in the incident or situation. One person or group is usually responsible for the harm (in some cases, particularly in educational settings, or between friends and within families, responsibility for harm is more ambiguous or shared). By exploring and acknowledging the harm caused (whether intended or accidental), RJ brings a certain kind of resolution to the situation and relief for both the harmed and the person(s) responsible for the harm. Problem solving takes place at a later stage in the process to determine what is needed for ‘justice’ to be done and to identify elements that will decrease the likelihood the act that caused the harm is not repeated.
Addressing harm in mediation
In mediation parties are looking for resolution due to conflict arising from a range of differences in perspectives, values and preferences. Anger, humiliation, fear, vengeance, and physical symptoms such as sleeplessness, depression and anxiety are common. Although parties have some awareness of their contribution to the situation, they often see the other as the root cause of the conflict and hold them responsible for their distress. In this regard, despite a focus on settlement, each is experiencing harm. Encouraging problem solving and resolution too soon, before understanding what led to the conflict, the emotional impact it has had, and what each can do to assure the situation doesn’t repeat itself, will result in a tenuous agreement.
Mediation Case Study
This conflict developed between two men, friends since elementary school and both volunteer fireman at the local fire station. They owned homes adjacent to each other and their wives were close friends.
A minor dispute over the sale of a motorcycle had escalated to the point where not only were the men’s lives turned upside down but the conflict between them began to significantly affect the station team. Inadvertently making matters worse, senior management’s message to the two men was for them to ignore each other, change their shifts, and instructing other members of the team not to take sides, Needless to say the situation deteriorated. The conflict became so bad that one of the men sold his house and the wives’ friendship ended. This unresolved conflict had caused untold distress for the two men, their families, friends, and colleagues, spilling over to the station and the team. Management requested Mediation.
In initial individual preparation meetings both men exhibited strong emotion. One was tearful, the other extremely angry. But both desperately wanted resolution as unlikely as that seemed. Additional preparation meetings were held. Finally, a joint session was agreed.
At the beginning of the joint session, the angry party could not look the other in the eye. He sat scribbling intensely on a piece of paper. He asked if he could move away from the table as he was having difficulty being in close proximity to his old friend and colleague. He took his chair and moved it across the room. This seemed to provide him with some safety and he engaged more with the dialogue. The mediation continued for some time with the two men physically far apart from one another. But the conversation was making progress – they were listening, acknowledging, questioning, challenging, clarifying, apologizing, and expanding on their understanding of the situation, their feelings about it and the impact it had had on their lives. I was listening, reframing, paraphrasing, reflecting commonalities and generally working hard to see if there was a way through this complicated and painful situation.
By the end of the 4-hour session, they were at the same table, had identified what external forces had contributed to the escalation of the conflict and had come up with some ideas for how to resolve it. Much of the mediation dealt with the strong emotion both had experienced and the distress the situation had caused. This needed to be aired and acknowledged before they could realistically focus on a workable agreement. They left the mediation together and were going for a drink. A date had been agreed for another joint session.
The elements in this mediation mirror reactions of a victim of harm in a restorative justice process. In RJ, the harm is the focus. In workplace mediation if significant emotions are present and the relationship is ongoing, the harm caused by the conflict must be dealt with before exploring options for agreement.
Not all workplace mediations are so fraught, the emotions so raw. But the norm, in my experience, is that by the time people engage in mediation they have suffered emotionally, and psychologically. This is in part because of how the conflict, which may seem minor to outsiders or to management, is handled. Managers are usually not experienced conflict resolvers so consequently the conflict festers, feelings escalate, and within months there is a full-blown conflict where people are off sick and/or on anti-depressants.
RJ Case Study
Peter is a man in his early 50s with family, children, and a successful business. Peter had been in habit of using recreational drugs regularly. Over time he fell into heavier drug use which spiralled out of control to the point where his whole focus was on getting money for drugs. Over a period of years, he lost his family, his home, his business. His children stopped speaking to him.
He began to shoplift to support his addiction, resorting to theft and robbery.
Angela was in late middle age, a retired accountant, and widowed, very involved in her local community, and a volunteer at local hospice where her husband had resided. One evening she stopped to draw cash at an ATM machine. To her shock she was accosted from behind and the cash she had withdrawn was snatched away. She shouted and people come to her aid and pursued the robber. The police were called, and Peter was apprehended, charged, and pleaded guilty.
Peter received a suspended sentence. RJ was suggested by Probation and Peter and Angela agreed to engage with the process. After individual preparation meetings, Angela choose the option to meet face to face with Peter. Peter’s daughter accompanied him, and Angela brought a close friend. Peter’s Probation officer also attended. At the meeting, Peter began by taking responsibility for his actions and the harm he caused. Angela talked about the effect the robbery has had on her and her family, the emotions she felt then and now. Peter expressed his emotions and remorse. Their supporters shared the harm the incident has had on them.
By the end of the meeting they reach an agreement outlining what actions Peter committed to to help him stay clean and not resort to robbery to feed his habit. Included in is a schedule of repayments to Angela, acknowledgement of the harm caused, and apologies offered and accepted.
As illustrated in these two cases, both RJ and Mediation address harm, responsibility and resolution. Both processes seek a restorative outcome. The differences lie in the balance of these elements and how ‘restorative ‘is defined.
(Both these cases took place in the UK. Names have been changed and situations altered slightly to protect privacy.)