CHAPTER 3

RESTORATIVE JUSTICES PRACTICES- GLOBAL

ASPECT

Restorative Justice cannot be said to be a new concept, but over past 30 years, use of the
philosophy of Restorative Justice in Criminal Justice reform has been dynamic. Evolution of
concept o
the lacking of criminal justice system, resulting into search for alternative ways, led to
exploration of restorative practices. At present over 80 countries practice Restorative Justice
is one or other form.118 Restorative Justice does not have particular practice, over the period
of time in different countries, variety of practices have been designed: it varies according to
need of time, culture, offender and victim concerned, policy of that country.119 Two hallmark
programs of Restorative Justice are:

1). Conferences which has been taken from Maori Practice from New Zealand.

2) Circles- From first Nation practice in North America.

Across the globe we can find different models of Restorative Justice. Following are the most
popular models:

:
Taking care of needs of victim is the primary object of Restorative Justice. The aim of
Restorative Justice is on focusing the injury the crime inflicts. As a means to that end,
restorative conferencing brings victim and offender and community together, to hold
offenders accountable not only for their crimes but for the harm they cause to victims. This
Main features four models of restorative conferencing:

Victim-offender mediation (VOM).

Community mediations

Family group conferencing (FGC).

118
Van Ness ; 2001, Report Centre For Justice And Reconciliation At Prison Fellowship International
,2001
119
, New York
and Cullompton, Devon, UK;Criminal Justice Press and Willan Publishing,2004. Chapters 5-8

75
 Circle sentencing.

These models are compared in administration. If Restorative Justice is to succeed in

contributing to the systematic reform of our criminal justice system, it must embody new
values that reflect the needs of victims, offenders, and communities. The models provides
tools of Restorative Justice.120

techniques such as victim offender mediation, conferencing technique of Restorative Justice,

family group conferencing(FGC), mediation technique especially in neighborhood and
community ,restorative circles, has some resemblance to mediation but it is not mediation.
The terms mediation and Restorative Justice can be interchangeable and are not exclusive,
depending on the context. It can be very well said that mediation is a process; however
Restorative Justice is mediation.121

s the people involved to reach an

agreement with the help of an impartial mediator. The parties rather than mediator decide the
The definition makes it quite clear that the object of mediation is to
or To understand the concept clearly we need to understand
these two terminology.

3.1.1 Difference between onflict And

dispute something is statement of fact, it

opinion or principle.122There are several mediation practices adopted to achieve restorative

goals across the globe. This chapter explores various practices adopted across the globe.
However it will be wrong to say that restorative practices are only mediation, they involve
many more techniques to solve a dispute.

120

Justice
121

in SAGE open Jan March 2017 ,1-10

122
[Link] on date 3 May
2020

76
 :

Preparatory meetings are involved in both, however there are few preparatory meeting in
mediation, discussing, negotiating, decision-making, is adopted by bringing the parties face
to face, this is where the main difference in both technique lies. This difference in process
certainly does not make one method superior to that of other. In mediation it is desired to
come to conclusion within the meeting space. However in Restorative Justice we focus on
harm and that maximum benefit is achieved mutually and together.

Because we are focusing on the harm:

Our effort is to minimize harm.

Emotional management is important.

Outcome and needs are expressly managed.

Aim is not to re- victimize, rather to create relation which is attachment.

Sir, Becky Beard differentiates restorative process from that of mediation in following ways:

Less preparation time. The conference of restorative program has more of preparation
time and less of conference time.

The acknowledgement of harm is main aim in restorative setup.

restorative process, the possible outcomes and expectations are managed as part of the
preparation stage.

Both processes use different types of terminology, and languages. The mediators in
mediation is more focused on facts. In a restorative process conversation involves a
lot of psychological factors, the focus is primarily on thought and feelings and thereby
effects.

In both spaces the mediator is impartial and neutral owes duty to create harmonizing
atmosphere. But Nancy says facilitator has more role of making the amends, till the extent its
possible.

In restorative work clear indication is on managing the emotions and thoughts aiming to

77
repair the harm by participation of harmer and harmed person. Parties have to face harm
irrespective of who initiated the case, restorative techniques aims at minimizing harm. Steve
at Remedi a US based Restorative Practitioners, in view of mediators and restorative
practitioners the techniques many time acquire overlapping situation, best way out is that
ads
123

Community mediation offers constructive processes for resolving differences and conflicts
between individuals, groups and organizations. Participants control the process and create
their own alternatives to avoidance, destructive confrontation, prolonged litigation or
violence. Community mediation offers participants an opportunity to discuss their concerns
and needs. It also strengthens relationships, builds connections between people and groups,
and creates processes that make communities work for everyone. Community mediators
support participants through difficult conversations, providing a safe environment to discuss
-making authority. Community
mediation centers offer a variety of conflict intervention processes depending on the needs
of the participants and the capacity of the center that support participants in addressing their

Community mediation in the United States began in the 1960s during the civil rights
movement as efforts to achieve racial, ethnic, class and gender equality gained momentum.
The federal government nurtured the development of community mediation by embedding
the Community Relations Service (CRS) within the Department of Justice in the 1964 Civil
Rights Act. This required the creation of a non-violent and constructive model for dealing
with community conflict that continues to be used [Link] community mediation
was used in 1970. This came out to be very successful that hundreds of programs were
adopted in many decades. In California there are options of enforcing the option in the
124
In India panchayt system can be taken as an example of community mediation.

123
[Link] Blog written by
Charlotte Calkin Restorative Practitioner Restorative Engagement Forum: Sept 20 ;2016
124
[Link] on date 29.04.2012
78
In India community medi
member of a village community, in presence of members of village make decision on various
civil and criminal issues. They adopt practice other than that of court. However capital of
India Delhi has some institutionalized, community medication process, functioned of society
of Delhi g
example of community mediation of India.

The Society has been constituted under Department of Law, Justice & Legislative Affairs
with an aim towards self-empowerment of the Society and for bringing greater Social
Harmony. The vision of the Society is:

To empower public to resolve disputes amicably.

To make people build relationships and make stronger and safer society.

To reduce backlog of cases from courts.

To save cost of litigation to parties and State.

To promote greater public satisfaction in legal system and dispute resolution

mechanism.

These are based on the restorative justice model, and are community mediated victim-
offender conflict resolutions designed to be fair to both the victim and the offender. VORPs
are an alternative to the formal criminal justice system, designed to improve conflict
resolution, provide material reparations to victims, prevent recidivism and offer a speedier
and less costly alternative to formal processes. Negotiation leaves both parties satisfied with
the results; the result is a mutually satisfactory solution. The victim and offender work
together to find a solution, leaving the victim, the offender and the community with the
feeling that justice has been served and that life will return to normal.

Victim-offender mediation (VOM) is a process that provides victim and offender being in
safe hands. The goal is to provide assistance to victims. With proper assistance of mediator
the victim and offender can talk to share the truth and circumstances. The offenders shall be
79
encouraged to take responsibility of their wrong, to the degree possible, to the persons they
violated. Offenders' lacking in restitution process leades to further court consequences. Some
VOM programs are called "victim-offender meetings," "victim offender reconciliation," or
"victim offender conferences."

Victim-offender mediation is one of the main programs of restorative justice; in criminal

justice reform movement it received great deal of attention throughout North America and
Europe. Current criminal justice systems also juvenile justice system is are primarily
offender-driven, with a retributive "trail 'em, nail 'em, and jail 'em" perspective that views any
crime is done against state and is less victim driven.

Restorative justice provides framework. Moving beyond the offender-driven focus,

restorative justice identifies three clients: individual victims, victimized communities, and
offenders. Crime is offence against people, as opposed to the more abstract legal definition of
crime as a violation against the State. Those most directly affected by crime are encouraged
to participate in the process of criminal justice system. Instead of passively "taking their
punishment," offenders are encouraged to take responsibility of their loss, to the degree
possible, to victims and communities. The core essence of restorative practices is largely
based on finding the truth, across the world be it ,American Indians, Pacific Islanders, the
Maori in New Zealand, and in the first world nation Canada.

Now the trend is changing, number of crime victim and offenders are choosing to meet
face to face. They talk about formal and informal things. Victim-offender mediation is it is
alternative to solve the harm, lawyers, courts, correction homes, and the communities. Over
the period of 25 year development of concept of victim offender mediation can be seen, it is
the need of hour to conduct the process in highly effective way.

3.5.1 When Cases Are Referred:

In some programs, the popular program of victim offender mediation, mediation agreement is
successfully completed. In other programs, after admission of guilt they are accepted in
court, in probation mediation can also be used, with the consent of the offender. Some
programs receive case referrals during trial or post-trial. Most cases are referred by officials
involved in the juvenile justice system, although some programs also receive referrals from
the adult criminal justice system. Referrals can be received from Judges, probation officers,
victim and victims advocate.

80
3.5.2 How Is It Different From Other Kinds Of Mediation:

Mediation is being used in an increasing number of conflict situations, such as divorce and
child custody cases, community disputes, commercial disputes, and other civil court-related
conflicts. In such settings, the parties are called "disputants," and the assumption made is that
both are contributing to the conflict and therefore both need to compromise to reach a
settlement. Often, mediation in these cases focuses heavily upon reaching a settlement, with
less emphasis upon discussing the full impact of the conflict on the disputants' lives.

In victim-offender mediation, the involved parties are not "disputants." Generally, one
party has clearly committed a criminal offense and has admitted doing so, whereas the other
has clearly been victimized. Therefore, the issue of guilt or innocence is not mediated. Nor is
there an expectation that crime victims compromise or request less than what they need to
restore their losses. Although many other types of mediation are largely "settlement-driven,"
victim-offender mediation is primarily "dialogue-driven," with emphasis upon victim
empowerment, offender accountability, and restoration of losses. Most VOM sessions (more
than 95 percent) result in a signed restitution agreement. This agreement, however, is
secondary to the importance of the initial dialogue between the parties. This dialogue
addresses emotional and informational needs of victims that are central to both the
empowerment of the victims and the development of victim empathy in the offenders, which
can help to prevent criminal behavior in the future. Research has consistently found that the
restitution agreement is less important to crime victims than the opportunity to express their
feelings about the offense directly to the offenders (Schneider, 1986). Restorative impact is
strongly related to the creation of a safe place for dialogue between the crime victim and the
offender.

3.5.3 Victim Offender Mediation & Restorative Impact:

The table below identifies key characteristics of victim-offender mediation that are likely to
result in the least and the most restorative impact.125

125
[Link] .

81
 TABLE 2126

LEAST RESTORATIVE IMPACT MOST RESTORATIVE IMPACT

Agreement-Driven: Offender Focus Dialogue-Driven: Victim Sensitive

Entire focus is upon determining Primary points of focus are to provide

the amount of financial restitution an opportunity for victims and

to be paid, with no opportunity to offenders to talk directly to each other;

talk directly about the full impact to allow victims to express the full

of the crime upon the victims, the impact of the crime upon their lives

community, and the offenders. and receive answers to important

questions they have; and to allow
No separate preparation meetings offenders to understand the real human
are conducted with the victims and impact of their behavior and take direct
offenders prior to bringing them responsibility for seeking to make
together. things right.

Victims are not given a choice of Restitution is important but secondary

where they would feel the most to the dialogue about the impact of the
comfortable and safe to meet or of crime.
whom they would like to have
present. Victims are continually given choices
throughout the process: where to meet,
Victims are given only written who should be present, etc.
notice to appear for a mediation
session at a preset time, with no Separate preparation meetings are

preparation. conducted with victims and offenders

prior to bringing them together, with
The mediators or facilitators emphasis upon listening to how the
describe the offense and then the crime has affected them, identifying
offenders speak, with the victims their needs, and preparing them for the
simply asking a few questions or mediation or conference session.
responding to questions from the
mediator. A nondirective style of facilitation is
fostered with the parties talking most

126
[Link]

82
 A highly directive style of of the time. The mediation incorporates
facilitation is conducted with a high tolerance of silence and the use
mediators talking most of the time, of a humanistic or transforming
127
continually asking both victims mediation model.
and offenders questions, with little
The mediation is marked by high
if any direct dialogue between the
tolerance for expressions of feelings
involved parties.
and of the full impact of crime.
The session is marked by low
Mediation is voluntary for both victims
tolerance of moments of silence or
and offenders.
expressions of feelings.
Trained community volunteers serve as
The mediation session is voluntary
mediators or comediators along with
for victims but required of
agency staff.
offenders whether or not they take
responsibility. The mediation session is dialogue-
driven and typically about an hour (or
The mediation is settlement-driven
longer) in length.
and very brief (10-15 minutes).

3.5.4 Victims Interest:

Interest in VOM started in 1970s, and local funds supported the process. As per public poll
82% of people supported the VOM for property crime. Interviews with 280 victims 91%
were of view the participation was purely voluntary. Victim-offender mediation is not
appropriate for all crimes. In all cases, it must be presented as a choice to the victim.

A national survey of the field found 289 VOM programs throughout the United States as of
1998. Today, a more accurate estimation would be in excess of 300. Telephone interviews
with 116 of the programs revealed that 42 percent of the programs were run by community-
based agencies, 23 percent were church-based programs, 17 percent were sponsored by
probation and correctional departments, 3 percent were based in victim services agencies, 4
percent were operated by prosecuting attorney's offices, and 11 percent were managed by

127
Mark S. Umbreit; Center for Restorative Justice & Peacemaking; "Creating a Safe, if not Sacred,
Place for Dialogue" found in [Link]
sens/[Link]

83
other types of agencies. Programs most frequently identified their primary source of funding
as local, State, or Federal Government. Foundations were the fourth most frequent source of
funding. Of those programs answering the question, 46 programs (45 percent) work only
with juvenile offenders and their victims, 9 programs (9 percent) work only with adult
offenders and their victims, and 48 programs (46 percent) work with both. The vast majority
of cases handled by the programs are property offenses and minor assaults. A number of the
more experienced programs, however, periodically work with more violent cases.128

Many researches have been conducted, on VOM and this field has grown to large extent
since the first Victim-Offender Reconciliation Project was initiated in Kitchener, Ontario,
Canada, in 1974, and replicated in the United States in Elkart, Indiana, in 1978. The
recognition it received in 1994 when the American Bar Association (ABA) endorsed the
practice of victim-offender mediation. After many years of supporting civil court mediation,
with limited interest in criminal mediation, the American Bar Association now endorses the
process and recommends the use of "victim-offender mediation and dialogue" in courts
throughout the United States. Similarly, a recent statewide survey of victim service providers
in Minnesota found that 91 percent believed that victim-offender mediation should be
available in every judicial district since it represents an important service option for crime
victims.129

128
[Link] .
129
[Link] .

84
3.5.5 International Development of Victim-Offender Mediation Programs:

TABLE 3

Country Number

Australia 5
Austria 17
Belgium 31
Canada 26
Denmark 5
England 43
Finland 130
France 73
Germany 348
Italy 4
New Zealand Available in all jurisdictions
Norway 44
Scotland 2
South Africa 1
Sweden 10
United States 289

While a continuing need for more research in this field remains, far more empirical data exist
on this option than one might find on many other correctional justice interventions. During
the past several years, a small but growing body of empirical data has emerged from multisite
assessments in Canada, England, and the United States. Studies conducted over the past 12
years throughout Europe and North America report high levels of satisfaction with the
mediation process and outcome on the part of victims and offenders. (Coates and Gehm,
1989; Collins, 1984; Dignan, 1990; Fischer and Jeune, 1987; Galaway, 1988; Galaway and
Hudson, 1996; Gehm, 1990; Marshall and Merry, 1990; Perry, Lajeunesse, and Woods,

85
1987; Umbreit, 1989, 1991, 1993a, 1993b, 1994a, 1994b, 1995a, 1995b; Umbreit and Coates,
1993; and Wright and Galaway, 1989). Some studies found higher restitution completion
rates (Umbreit, 1994a and 1994b), reduced fear among victims (Umbreit and Coates, 1993;
and Umbreit, 1994a and 1994b), and reduced further criminal behavior (Nugent and
Paddock, 1995; Schneider, 1986; and Umbreit, 1994a and 1994b). Multisite studies in
England (Marshall and Merry, 1990; and Umbreit and Roberts, 1996), the United States
(Coates and Gehm, 1989; and Umbreit, 1994a and 1994b), and Canada (Umbreit, 1995a and
1995b) have confirmed most of these findings. A large multisite study in the United States
(Umbreit, 1994a and 1994b) found that victims of crime who meet with their offenders are
far more likely to be satisfied with the criminal justice system response to their cases than
victims of similar offenses who go through the conventional criminal court process.

It is becoming increasingly clear that the victim-offender mediation process can serve to
humanize the criminal justice experience for both the victim and the offender. It holds
offenders directly accountable to the people they have victimized, allows for more active
involvement of crime victims and community members (as volunteer mediators and support
persons) in the justice process, and reduces further criminal behavior of offenders. During the
early 1980s, many questioned whether crime victims would want to meet face-to-face with
their offender. Today it is clear, from empirical data and experience, that the majority of
crime victims who are presented with the opportunity for mediation and dialogue choose to
engage in the process, with victim participation rates in many programs ranging from 60 to
70 percent130

3.5.6 Prison Mediations:

Mediation is a process in which an impartial third party - the mediator - helps people in
dispute work out an agreement. The people in dispute work out the agreement rather than the
mediator, who runs the meeting with ground rules.

PRISON CIRCLES:

Prison inmates are trained in such manner that they realize how healing peace can be training
them for better environment. This also provides opportunity to serve there sentence in fruitful
way. Restorative justice program can by voluntary programs, where by organized lectures
and discussion prisoners can be brought to peace. This is a very successful technique; it aims
130
Ibid 9

86
to tell offender that humans some time commit crimes, but that does not mean they are bad,
they can repair it by doing good.

Story of Laurel Kaufer, USA shows how women with dark past, murder, manslaughter could
possibly become peacemaker.

Their story is one of personal commitment to themselves and the community in which
s is an environment filled with conflict and

initial peacemakers, serving a life sentence without the possibility of parole at the largest
prison for women in the world, Valley State Prison for Women in Chowchilla, CA.
-termers hoping to make a
difference in teaching our peers that there is a better way

Beginning her quest in 2007, Sue Russo wrote over 50 handwritten letters from prison to
mediators all over California. Her letters went unanswered until August of 2009 when one of
her letters made it to me, Laurel Kaufer, Esq., a Southern California mediator and
peacemaker and founder of the post-Katrina Mississippi Mediation Project.

standing at the mailbox, I called my friend and colleague, Doug Noll, the only person I
would consider working with on a project like this. Doug is a superb trainer, mediator, and
restorative justice expert. I read the letter to him. He was silent for about a nano-second

We spent six months working our way up the chain of command to convince the prison
authorities to let us run a pilot project. When we got the final approval, we selected our first
fifteen women, all long term and life inmates, and the training began less than a month later.
Ten weeks later, the first 15 women were fully trained mediators and within two weeks of
completing their training had conducted over 25 mediations and dozens of peace circles
within the prison.

mates now strive to model their lives after the Peacemakers currently in Prison of
Peace. I feel more empowered than I have felt in forty-
changed not only my way of thinking but also my feelings. I truly believe this will have a
says Rousseau.

87
 Our secret is to build skills slowly with continued accountability throughout the process.
The training, which takes ten consecutive weeks, consists of a two day intensive listening
workshop, three weeks of follow-up, a day-long class in peace circles and restorative justice,
three more weeks of follow-up, and a 3 day intensive mediation training workshop followed
by two more weeks of follow-up. Every Wednesday for 10 weeks, I drove the 500 mile
round-trip drive, between my home in Woodland Hills, California to the prison in
Chowchilla. Doug, living somewhat closer to the prison in the foothills to the north of Clovis,
California, provides our base of operations.

Over the course of the training, we saw amazing transformations in these women. They
started out emotionally shut down and skeptical and ended up empowered and dedicated to
making peace within the prison. It has been one of the most satisfying projects of our careers.
This is the first time either of us have felt that a conflict resolution training might make a
real, systemic difference within a community.

Instead of running from conflict, I now run to conflict, with hopes of bringing resolution.
Not only has this program taught me not to be scared of conflict, it has also taught me how to

-sustaining by training the

life and long-term inmates to be trainers within the prison. At present, we have a waiting list
of inmates seeking to participate in the program that will take us through 2010 and beyond.
We expect to have 75 peacemakers fully trained by the end of the year. Our focus in 2011
will be to create trainers from our current peacemakers who will train the rest of the inmate
131

3.6.1 Circle Sentencing:

Community Justice Groups because it breaks down barriers between the justice system and
John Hatzistergos, NSW Attorney-General [12]

For a long time there has been no real improvement in the situation of Aboriginal people in
jail, despite the Royal Commission into Aboriginal deaths in custody and its many
recommendations.

Aboriginal People are overrepresented in Australian jails. In 2006 (and still in 2008) 80%

131
[Link]

88
of the Northern Territory prison population was Indigenous. In addition, Aboriginal people in
custody are often dying from treatable diseases like diabetes and heart disease.

A scheme which is called circle sentencing

sitting together and trying to decide a sentence which does not include a jail term.
Representatives are mainly Aboriginal Elders, but also members of the prosecution or police
and a magistrate. The circle will also talk about the background and effects of the offence
and can involve meeting the victim. The sentence should, where possible, involve
community.

3.6.2 Process Of Prison Sentencing:

i. Welcome: Aboriginal elders welcome all participants.

ii. The magistrate will welcome all participants to the circle and formally open
proceedings.

iii. Introduction: Participants introduce themselves, explain who they are, their
relationship with the defendant or victim or their interest in the offence.

iv. Magistrate explains the role of the circle, that it is a court and functions as a court.

v. Magistrate explains methods of proceeding in the circle, the guidelines and the rule of
conduct within the circle.

vi. Defendant statement: The defendant will make comment regarding the offence,
themselves, their commitment to rehabilitation.

vii. The victim or a representative of the victim may make a statement regarding the
impact of the offence.

viii. Circle discussion: The discussion should cover the offence, its impact on the victim
and community, what needs to be done to right the wrong, what support may be
available for the defendant and victim.

ix. Magistrate provides summary of circle discussion/decisions reached.

x. Sentencing: Magistrate determines sentence.

xi. Support discussion: Support for defendant established, formal support group that

89
 will support offender is established.

xii. Support for victim established, support group for victim is established.

xiii. Closing remarks, magistrate formally closes the circle munity work.

3.6.3 Benefits Of Circle Sentencing

Some benefits of circle sentencing include:

i. Local scope: Circle sentencing helps people to address and correct criminal
behaviour within their local communities.
ii. Break the cycle: It reduces the likelihood to re-offend and enter a criminal career.
iii. Personal hearings: There is no dominance of legal professionals or hierarchies of
traditional court rooms, all participants are able to fully participate and to speak for
themselves.
iv. Easy understanding: Legal jargon is removed from the court, the language of the
community becomes the language of the court.
v. Holistic approach: The court receives information about the whole community, the
background to the offenders, the impact of the offence on the victim, the problems
experienced by the local community.
vi. Racial biases reduced: Community participation greatly removes racial bias in the
court and in the sentence.
vii. Offender participation: Circle courts actively encourage the participation of the
offender and those who know him or her best.
viii. Victim participation: Circle courts allow the offender to get a full perspective of the
effects of their actions on the victim, the offender is directly confronted with the hurt
experienced by the victim.
ix. Away from court rooms: Court rooms can be intimidating for Aboriginal people. If
circles are held away from courts people are more likely to open up to elders

90
ZEALAND:

In modern time deviance of juvenile has become a rampant problem, New Zealand
experience show that children can be reformed in family, rather than prison. New Zealand
developed restorative justice practices for juvenile offenders.

3.7.1 Social Welfare Family Group Conference (WFGC):

The New Zealand children young person and their families Act, 1989 required that young
people who came to the attention of authorities- either for care and protection issues or for
offending behavior- participate in family group conference (FGC) with their immediate and
extended family members. FGC empowers the extended family group actions to determine
plan of action where professional acts as facilitators.132

3.7.2 Family Group Conferences:

(FGCs) originated in New Zealand. They were originally used to allow social work practice
to work with and not against Maori values and culture .The Children, Young Persons, and
Their Families Act 1989 made them a central part of practice and services where serious
decisions about children are to be made.

The Fam
family members) can help make decisions about the best way to support the family and take
care of their child133. It is a formal meeting in which the family and whanau of the child and
professional practitioners closely work together to make a decision that best meet the needs
of the child. The process has four main stages, which includes a meeting where professionals
inform the family of the concerns they have, followed by private family time, where the
family alone develop a plan that addresses the concerns that have been raised. The plan is
then presented to the professionals who should support it if the concerns have been addressed
and it does not put the child at risk. The meetings are facilitated and coordinated by people
independent of casework decisions in the agency working with the family

132
Paul McCold, Department of Sociology and Criminal Justice, Old Dominion University, Norfolk,
Virginia Posted 1999-08-07
133
[Link]/keeping kids always safe/ways we work with family.

91
of the New Zealand youth justice system.

3.7.3 Family Group Decision Making ( FGDM):

Family group decision-making refers to a collection of family intervention approaches in

which family members come together to make decisions about caring for their children and
to develop a plan for services. This type of intervention also is referred to as family team
conferencing, family team meetings, family group conferencing, family team decision-
making, family unity meetings, and team decision-making. While approaches differ in
various aspects, they all feature family (broadly defined) participation in the assessment and
a broad range of decisions that impact child safety, permanency, and well-being.134

3.8.1 Direct Or Indirect Restorative Justice Processes:

The victim and offender, guided by a facilitator, communicate with one another. Other
people can also be involved in the process, such as supporters of the victims and perpetrator,
and also members of the wider community. This can take place through a direct face-to-face
meeting, or, when several other people are involved, a conference; or indirectly with the
facilitator acting as 'go between' in 'shuttle mediation'. An agreement is usually reached to
decide how best to repair the harm caused and a rehabilitative programme may be agreed.

3.8.2 Community - Conferencing:

This is a large-scale conference particularly useful at resolving anti-social behaviour. These

conferences can deal with a large number of participants including local community
members, several victims and perpetrators. In this approach the community as a whole is
often the victim. This process is similar to community problem solving meetings. However, it
is restorative if the process focuses on the harm caused and its resolution.

3.8.3 Referral Order Panels:

Young people who receive a court Referral Order attend a panel meeting to discuss their
offence and the factors that may have contributed to their offending behaviour. The panel is
made up of Youth Offending Team staff and community volunteers. The victim, or their

134
[Link] on date 29.04.2012

92
representative, may also attend so that their views may be put forward.

3.9 NEW ZEALAND:

(Anglo-European descent) and Maori (indigenous people) encountered inequities in the

treatment of different groups in the courts. The Maori were early leaders among Pacific
indigenous peoples to grasp the importance of the need for change in the criminal justice
system, and to take action.

With, massive increases in the use of imprisonment for addressing criminal behavior, and
growing numbers of troubled Maori youth being placed in foster homes when their parents
were having difficulties with substance abuse and alcohol problems, the Maori leaders led
efforts to change the reality of the justice system as it impacted Maori youth from troubled
backgrounds. Helen Bowen and Jim Considine (who was then the national coordinator of the
Restorative Justice Network of New Zealand) in their 1999 book Restorative Justice:
Contemporary Themes and Practices spelled out the ominous consequences to the U.S.,
Canada, Australia and New Zealand of the rising trends towards incarceration. In that book,
Vivian Stern, Secretary General for Penal Reform International pointed out the following .As
noted by Gabrielle Maxwell in her book Restorative Justice Today135, the New Zealand
Maori were the moving force in the passage of the Children, Young Persons, and Their
Families Act of 1989. Maxwell stated:

The legislation sets out a number of principles for the future, including that practice in
child welfare and juvenile justice must involve parents, extended family and whanau, hapu,
and iwi (family groups, clans and tribes) in developing solutions to problem situations and
provide support to them in caring for their children. These principles emphasized diverting
children and young people from court and keeping them within their family and community
groups. They require that responses should respect cultural values, adopt culturally
appropriate procedures, and cease using intrusive and disempowering interventions.136 The
result of the passage of this law was the emergence of Family Group Conferencing (FGC),
which has become a pillar of restorative justice as a process that is built around the
collectivist and family-oriented indigenous cultures of the Pacific basin and North America. I

135

vol 40 issue 1 Haward Journal of Criminal Justice 2003 August

136
(Van Wormer and Walker, 2013).

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believe that FGC as a tool can work well in most collectivist societies of SE Asia, the Pacific
and many other parts of the world. The influence of family group conferencing (FGC) and
the evolution of its adaptations in other countries in the North America, East and Southeast
Asia, Oceania and Island Pacific has been a critical component, in RJ and in child welfare
practices, promoting social change. We will trace further developments and noteworthy
milestones in the conferencing and restorative justice movement in this article.

This model has been adapted to include not only the notion of family involvement but also
the participation of both the offender's and the victim's supporters who may or may not be
family. The focus of conferencing circles is to repair the harm done by an offence and to
minimize the likelihood of future harm. This is accomplished through dialogue geared to
increasing understanding between participants and is conducted in a structured circle setting
guided by a trained facilitator or convener.

It is rooted in Maori culture in New Zealand where, like in other parts of the world, the
indigenous population is over represented in the court and prison system. The Maori concept
directly involves the offender's family in the process of holding the offender accountable, in
teaching individual responsibility and in addressing the harm done. It was introduced to the
juvenile justice system in New Zealand as an alternative to youth court and later expanded to
Australia, North America and other countries.

CANADA:

Restorative Justice in Canada In 1996, the sentencing principles in the Criminal Code137 were
amended to encourage the use of community-based sentencing and focus on restorative
elements such as the need to promote a sense of responsibility in offenders and for them to
acknowledge and make reparation for the harm they have done to their victims and to the
community.

In fact, paragraph 718.2(e) of the Criminal Code, states that:

"all available sanctions other than imprisonment that are reasonable in the circumstances
should be considered for all offenders, with particular attention to the circumstances of
Aboriginal offenders."

137
RSC 1985 ; Parliament of Canada

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 In the Jamie Tanis Gladue vs Her Megesty the Queen case,138 the Supreme Court of
Canada rejected the view that a restorative approach is a more lenient approach to crime, or
that a sentence focusing on restorative justice is a lighter sentence. Restoring harmony
involves determining sentences that respond to the needs of the victim, the community, and
the offender.

Advocates of restorative justice believe that it is in the best interests of society to support
offenders in turning away from crime and learning to behave in socially acceptable ways.
Restorative programs are believed to encourage offenders to feel and express remorse, to
recognize the harm they have done to their victims, and to accept responsibility for their
actions. Cost-saving Issues A significant amount of funding is required to develop and
sustain restorative justice programs. At the same time, there is a substantial push for
government to create more. Restorative programs throughout Canada because some believe
that such programs will reduce the long-term costs of incarceration. The purpose of a RJ
program must never be to cut costs. If a program is set up to save the government money, it
may not be honoring the principles of RJ. The limitations of RJ There will always be a need
for the traditional justice system, as some cases are simply not appropriate for RJ programs.
Remember that restorative justice can only take place when: - An offender admits guilt,
accepts responsibility for his/her actions and agrees to participate in the program; - The
victim of the crime freely agrees to participate in the program and without feeling pressured
to do so; and - Trained facilitators are available in the community and a restorative program
is in place. There are offenders who are not appropriate candidates for such programs, as well
as victims and their families who do not want to have a role in restorative programs. Even if
an offender participates in a RJ program, he/she may still be dangerous and therefore must
still be sent to prison. Also, a person who has been wrongfully charged with an offence must
have an opportunity to prove his/her innocence in a court of law. Thus, restorative justice
programs are not appropriate in every situation.

3.10.1 Types of Restorative Programs:

Most restorative justice programs have some common elements. The following list details
some of the different types of restorative programs available throughout Canada, as provided
by the Correctional Service of Canada Dispute Resolution Unit. It is important to remember
that most programs require the voluntary participation of the offender and that they accept
138
[1999]1 SCR 688

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responsibility for their actions. Some programs require the participation of victims. It is also
important to note that programs can take place at different stages of the criminal justice
process. Some programs may require the offender to plead guilty before proceeding with the
program. Others may take place after charges have been laid. Some initiatives take place
after conviction but before sentencing occurs (pre-sentence programs), while others take
place after an offender has been sentenced (post-sentence programs). It is important to note
that not all programs apply all the principles of RJ. Some may not require victim
participation and instead apply other principles. That does not make the program futile, but it
is important to understand when assessing a program. Circles of Support and Accountability
are groups of volunteers, often from the faith communities, that form a "covenant" with a
released high-risk sex offender (who has served his entire sentence) to accept the Circle's
help and advice, to pursue a predetermined course of treatment and to act responsibly in the
community. For its part, the Circle helps provide a healthy environment for the ex-offender
by advocating with various systems, dialoging the ex-offender about his attitudes and
behaviours, and mediating concerns with the community.
required. Revised: March 2011 Peacemaking Circles are rooted in Aboriginal experience and
tradition, and are based on the belief that the primary responsibility for addressing the
problems of crime lies in the community and not just with those directly impacted by the
crime and their immediate families. Peacemaking circles, be they healing circles or
community circles or sentencing circles, also have at their core, the belief that it is important
to address not only the presenting criminal problem but also to build community. These
circles focus on trying to uncover the underlying problems, and to restore balance where
possible. Discussions in these types of circles often explore wider issues of local crime and
prevention issues, going beyond just the situation at hand. Healing circles are ceremonies
intended to bring conflict to a close, allow the participants to express their feelings, and
indicate that the offender and victim have undergone personal healing. In Sentencing Circles,
the victim, offender, family, and community members, meet with a judge, lawyers, police,
and others to recommend to the judge what type of sentence an offender should receive. The
victim and the community have the opportunity to express themselves, address the offender,
and may also take part in developing and implementing a plan relating to the offender's
sentence. Community-assisted hearings, or releasing circles, are a type of Parole Board of
Canada hearing for aboriginal offenders and involve aboriginal community members. The
process is similar to a parole hearing in that it occurs within the prison. It differs from a
traditional hearing in that all of the participants, including members of the board, the

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offender, his parole officer, his support person, aboriginal elders from the community, the
hearing assistant and the victims (if they are present), sit in a circle for the purposes of the

substantially from one province to another.

In Community Justice Forums, mediators or facilitators help accused persons and their
families to meet with victims, their supporters, police, and others to discuss and resolve the
incident. In Canada, the RCMP has been training officers and community members in using
this method. Most initiatives have focused on young offenders, but some communities are
using this model with adults. Victim Offender Mediation programs (VOMP) started in
Canada 25 years ago and have proven extremely beneficial in assisting victims and offenders
find a sense of satisfaction, closure and healing in the aftermath of crime. Victim-offender
mediation is a process that prepares interested victims and offenders for an opportunity to
meet in a safe and structured setting and with the assistance of a trained mediator. During
these meetings, victims often tell the offender about the crime's physical, emotional, and
financial impact on their lives, receive answers to lingering questions about the crime and the
offender, and participate directly in developing options for trying to make things right. The
offender is afforded opportunities to make apologies, provide information and to develop
reparative plans and gain insight for personal growth. These processes are sometimes
prepared for and/or facilitated using written or video correspondence. In the last decade, new
expertise has been developed in mediating cases of serious crime. It is important to note that
participation by the victim is voluntary. The offender's participation is usually characterized

avoid more onerous outcomes that would otherwise be imposed. Unlike binding arbitration,
no specific outcome is imposed by the mediator. Instead, the mediator's role is to facilitate
interaction between the victim and offender in which each assumes a proactive role in
achieving an outcome that is perceived as fair by both. Unlike the traditional criminal justice

opportunity to mutually rectify the harm done to the victim in a process that promotes
dialogue between them. Depending on what stage of the case the mediation takes place,
different outcomes will likely result. For instance, a meeting may take place at some point
during the trial process or after the offender has spent many years in prison. The terms of the
agreed reparation (e.g., restitution, in-kind services, etc.) are reduced to writing, along with
any payment and monitoring schedules. Healing Lodges Healing Lodges are a new way of

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delivering corrections for Aboriginal offenders serving a federal sentence. They are intended
to better respond to the needs of the Aboriginal community within the institutions. Healing
Lodges reflect the physical space and programs of the Aboriginal culture. The needs of the
offenders under federal sentence are addressed through Aboriginal teachings, ceremonies,
contact with Elders and children and interaction with nature. Program delivery is premised on
individualized plans, a holistic approach, an interactive relationship with the community, and
a focus on Revised: March 2011 release preparation. The Healing Lodges operate from a
unique perspective, placing a high value on spiritual leadership as well as role modeling
through life experiences of staff. Victims and the community are not a part of this process.
Surrogate Victim/Offender Restorative Justice Dialogue A victim or an offender may choose
to meet with someone who committed a similar crime or who was similarly victimized,
instead of meeting with the specific offender or victim in his or her case. The surrogate
victim/offender dialogue has proven beneficial to many victims who want to experience a
restorative meeting, but who for whatever reason, cannot bring themselves to meet the
offender in their case. Surrogate victim/offender dialogues may also be helpful in preparing
victims and offenders for an anticipated meeting at some point in the future. It may also help
offenders who want to participate in such a program but the victim is unable or does not want
to take part. Restorative Justice for Young Offenders Youth crime and how to deal
effectively and appropriately with it is a contentious issue in Canada. The movement towards
restorative justice for youth began with the revelation that Canada imprisoned more youth
than any other Western country including the United States. This was problematic for many
people within the criminal justice system who believe that youths could and should be better
served. Thus, we have seen a strong movement toward the use of restorative approaches for
dealing with young offenders, in the Youth Criminal Justice Act, which replaced the Young

accountability, as well as reduce youth imprisonment. Sometimes, the police and the court
system decide that criminal court proceedings are not in the best interests of the youth or
society. In such cases, the youth may be diverted or referred to an alternative or extrajudicial
measures program wherein an appropriate penalty is determined. This provides an
opportunity for victims to participate in decisions related to the measures selected and to
receive reparation. Extrajudicial measures encourage families and the community to
participate in design and implementation of measures. Most restorative programs for youth
are limited to first-time, non-violent offenders (although new programs and studies are
analyzing the benefits of RJ and violent crime). Commonly referred to as alternative or

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extrajudicial measures, they may involve programs such as community service, restitution to
the victim, volunteering for a nonprofit organization, attending a wilderness camp that allows
youths access to counselling and teaches life skills, public speaking, attending substance
abuse or aggression programs, and even reconciliation programs where the victim and
offender discuss the crime and its aftermath.

Restorative programs for youth can be applied either before or after a youth has been
charged. Once a youth has agreed to participate, an agreement may be struck. If the program
is pre-sentence or post-sentence and the youth does not comply with the arrangements made
during the restorative process, the case can be referred back to the youth court to be dealt
with in the traditional manner.

Victims in Ontario for example, may be required to sit outside the circle as observers. Or, if
they do enter the circle as participants, they must read directly from their victim impact
statement and cannot speak freely. Thus, the circle is not true in the sense that all participants
are equal. Community Conferencing is a broader term being used in Canada for a practice
called Family Group Conferencing

Youth Justice Committees are a held as a way include restorative justice principles in youth
criminal justice process. Community members meet with victims, young people alleged to
have committed non violent offences and their parents to negotiate an appropriate way for the
young person to make amends for his or her actions. The committees deal with pre-charge
referrals from police (extrajudicial measures) and post charge referrals from the crowns
(extrajudicial sanctions) to give advice on the appropriate extra judicial measures to be used
in respect to a young person. These committees ensure that community support is available to
the young person by arranging for the use of services from within the community and
enlisting members of the community to provide short term mentoring and supervision.
Committees also help coordinate the interaction of a child protection agency with the youth
criminal justice system Restorative Conferences A Restorative Conference consists of a
group of people who are convened to give information in accordance with section 19 of the
YCJA. Section 19 provides stipulations on who may call conferences and the rules which
guide conference structure. Conferences provide an opportunity for a wider range of
perspective, more creative solutions, better coordination of services and increased
involvement of the victim and other community members. The conferences involve meetings
between offenders, victims and community members. They have an emphasis on restorative

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justice and victim compensation for injury caused by the offender. Restorative processes may
include: family group conferences, community accountability panels, peer mediation,
sentencing circles, victim-offender reconciliation, youth justice committees, and interagency
case conferences. The purpose is to give advice on appropriate extrajudicial measures,
conditions for judicial interim release, sentences, review of sentences and reintegrational
plans Types of programs for young offenders: Pre-charge programs occur after a youth may
have been caught committing a crime, but the police have not charged him/her. There may be
an agreement struck in which the police do not charge the youth if he or she agrees to take
part in a pre-charge program. In other instances, the police may caution the youth and
recommend to his/her parents that they participate in a pre-charge restorative program. Post-
charge programs occur after a youth has been formally charged with a crime, but before court
procedures begin. Post-sentence programs occur following the imposition of a disposition
(sentence) by a youth court. A judge may recommend that a youth participate in a certain
program as part of the sentence or in addition to their sentence.

3.10.2 Number of Restorative Justice Programs in Canada:

According to the Canadian Inventory of Restorative Justice Programs the following programs
are available for youths and adults139

SAFETY: - Victims are ensured safety in all respects

INFORMATION: -Victims are well informed about the program taking place
CHOICE: Program leaves the level of participation open to the victim, also gives
choice to have advocate
TESTIMONY: - Victims are made aware of all the kind of procedures
RESTITUTION: - restitution as means of problem solving

In British Columbia the community-assisted hearings and releasing circles have been taking
place for a number of years. All participants in the circle are able to speak freely, and thus
victims who are involved are not limited to reading from a prepared victim impact statement.
They can discuss the impact of the crime directly with the members of the circle, including
the offender. Unfortunately, provinces other than BC often do not have as much experience

139
[Link]

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 Some of the earliest restorative justice pioneers were from faith communities such as the
Mennonites. They drew from their faith tradition and the Bible the notion that justice had
everything to do with healing and worked on making a people whole. They believed that
justice was all about making things right with God and with one another.

Nowadays, many restorative justice programs are still rooted in religious or faith-based
principles of reconciliation, restoration, and healing. Some people argue that restorative
justice, with its spiritual roots and values, is a more morally and emotionally satisfying model
for criminal justice than the current state-centered, retributive model.

Forgiveness and restoration are viewed as fundamental to how we should respond to human
wrongdoing. With its emphasis on making things right and restoring balance and harmony,
restorative justice touches the foundational beliefs of the major world faiths. Promoters of RJ
must be careful about linking it too closely with faith and religion. Some victims may feel ill
at ease dealing with a criminal justice philosophy so fundamentally tied to faith-based
principles. At the same time, others have found the principles of forgiveness, reconciliation
and restoration very rewarding in their journey toward healing. While forgiveness may be
appropriate for some victims and it may result naturally for some participants in RJ
programs, it should not be the goal.

Victims must not be pressured to forgive an offender. The burden on the victim is heavy
enough without being made to worry about forgiveness. If there is pressure to forgive and at
the end of the process the victim is unable to do so, this may be unnecessarily interpreted as a
failure.

MES:

Restorative justice programmes can be beneficial in that victims can express their thoughts,
feelings and emotions about the crime and the harm arising from it. Such programs gives
numerous settings and circumstances through which victims, offenders and communities can
address and repair the harm caused in a particular case. Repairing harm and restoring
relationships are the main goal of this system. After participation in this process many
victims have shown great amount of contentment. Such involvements also help victims to
gain emotional stability, as well as reduce the fear of the offender and further criminal
victimization. Victims should however be aware that restorative programs are time
consuming and emotionally draining. For some victims, even the idea of meeting the

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offender can be overwhelming. Victims may also suffer further distress if they feel at all
pressured to participate in such programs.

Mark S. Umbreit is a world-renown facilitator of Victim Offender Mediation. In his

research, according to Umbreit victim offender mediation process promotes humanistic
content in the stakeholders the for both victim and offender; this holds offenders directly
accountable to the people they victimized; allows for more active involvement of crime
victims and community member (as volunteer mediators) in the justice process and
suppresses further criminal behaviour in offenders. Umbreit was of view that this principle of
restorative justice also holds good against the severe violence, including murder. He, and
other researchers in this field, would even suggest that the deepest healing impact of
restorative justice is to be found in addressing and responding to such violent crime. While
conducting research Restorative Justice and Peacemaking at the University of Minnesota,
Umbreit has found that an increasing number of victims of sexual assault, attempted
homicide, and survivors of murder victims are requesting the opportunity to meet the
offender to express the full impact of the crime upon their life, to get answers to many
questions they have and to gain a greater sense of closure so that they can move on with their
lives. In most cases this occurs many years after the crime occurred and the actual
mediation/dialogue session is typically held in a secure institution where the offender is
located. In the mid- ch cases in scattered locations throughout the
United States were provided with the opportunity for a mediated dialogue.

The Collaborative Justice Program has been dealing with serious crime like armed robbery
and impaired driving causing death for multiple years now. This is one of the main criticism of

concern that some programs, particularly those conducted at the beginning of the criminal
justice process result in the offender avoiding a jail term and avoiding jail should not be the
goal of any RJ program. In some cases, it is appropriate for the victim, the community and the
offender to come up with a sentence that does not include prison. In other cases, despite having
participated in a RJ program, it may still be necessary for an offender to be sent to prison
because of the nature of the offence, his past record, and his risk to re-
d in these programs, particularly those where
they have met the victim, say it was tougher than the punishment they would normally receive.

e much more difficult than facing a judge and nameless jury.

102
Possibilities for remorse, repentance and forgiveness While the principles of restorative justice
are sound, they are not necessarily appropriate for every case. Some victims, especially those
of violent offences may not feel that forgiveness, repentance and remorse are appropriate or
even possible. Not all victims wish to participate likewise, not all offenders are remorseful for
their actions. For many victims and survivors of violent crime, punishment and incapacitation
may be viewed as a necessary component of the criminal justice process. That is not to say that
possibilities for restorative justice are completely lost, just that they may be unwanted for the
time being. These strong feelings should be respected. Pressure on victims of crime should
never feel compelled to take part in the restorative process. Some victim advocates assert that
there is a danger that victims may feel pressured into taking part. For some victims, even the
thought of meeting the offender may be very distressing. Certainly, it would be ideal if all
cases could be settled using a holistic perspective that is inclusive to all parties and satisfactory
to all parties, but criminal justice professionals must understand that this option is not always
possible or appropriate. Victims should also be prepared for frustration and disappointment
should the offender in their case be uninterested or unwilling to participate in a restorative
program. Some offenders are simply not willing to accept responsibility for their actions or to
show remorse. This may be devastating to a victim who thought they might finally be able to
receive answers to their lingering questions about the crime. Some victims and their advocates
have expressed concern that programs tend to focus on the offender and do not recognize the
needs of victims. This is largely because victims and their advocates are often not involved in
the design and implementation of restorative programs. Finally, victims and their families
might also feel burdened by inconvenient meetings that are time-consuming. Appropriateness
in cases of sexual assault and family violence Many advocates for women - particularly
aboriginal women - have raised concerns about the use of restorative approaches in their
communities, especially in cases of sexual assault or family violence. The idea of restoration
may be suspect in situations where the offender holds power or influence over the victim
because the victim is especially vulnerable through age, economic dependency, mental or
emotional capacity, or because of the nature of the offence (such as spousal assault or sexual
offences). The safety of the victim is to be taken very seriously and may be compromised by
such a meeting or dialogue. Similarly, the public expects the justice system to clearly denounce
serious and violent crimes, and the use of restorative processes might be seen as compromising
that message. In reality, most restorative programs simply do not believe it is appropriate and
thus do not offer programs for cases of sexual assault and family violence.

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 In some cases, restorative processes might even result in tougher consequences than a
court would impose. To be effective, restorative justice must respond to concerns about
public safety while also respecting the rights of the accused to state their innocence and to
have a fair trial. Training and Standards One of the concerns of many RJ practitioners and
promoters is the rapid growth of RJ programs and the need to ensure that those running the
programs (i.e. mediators) are properly trained. Someone who is not properly trained could do
significant harm to a victim. As more government money becomes available for these
programs, governments must ensure those running the programs are properly trained and
applying the principles of RJ. Misuse of RJ As more and more governments see the benefits
of RJ programs (cost savings), they will fund more and more programs.140 The difficulty for
RJ practitioners will be ensuring the many new programs stay true to the principles of RJ and
do not succumb to government pressure to deal with more offenders faster and at less cost.
RJ is not about getting offenders out on parole sooner or avoiding prison altogether. Do
victims have to participate in rest
voluntary. When considering whether to participate or not, victims should be provided with
as much information as possible about the process, possible outcomes, his or her role, the
role of the offender and any other participants, as well as other options. Such programs are
intended to prevent the further victimization of crime victims. Victims of crime should
proceed through the criminal justice system in the manner they are most comfortable. While
not appropriate for every case, victims who have an interest in pursuing restorative programs,
have every right to do so. Restorative justice programs certainly do have many benefits for
victims of crime. They have been proven to involve victims, repair the harm done to victims
and their families and, for the most part, have left victims highly satisfied with the result of
their case. Other research has found that restorative justice helps victims with emotional
healing and lessens their fears of the offender and about re victimization. If you think that
restorative justice may be beneficial to you, speak to your local victim service providers,
Crown Attorney, police or your provincial or federal correctional service about this option
and they may be able to put you in touch with a program in your area. 141

In nutshell, it can be said that Restorative programs are existing and growing across the
world. The first world countries are more aware about it and have made it integral part of
justice delivery system, in other part of the world it is in nascent stage and a lot needs to be
done.
140
[Link]
141
http/[Link]/docs/[Link]

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