A form of ADR almost exclusively tied to the Criminal Justice System.
An intervention could occur pre-charge: e.g. When a police officer exercises
discretion to divert young offenders from being charged.
An intervention could occur post-charge: A court or some other official identifies
the case as appropriate for diversion from the court system.
An intervention could occur post-conviction: e.g. When the victim seeks restitution
from the offender. Programs like these are often called VORPS: victim-offender
Punishment: what do we want to achieve? What's the purpose?
Retribution: imposing a certain degree of hardship on an offender in some sort of
equivalency to the harm they imposed on another.
Many ancient legal systems took a restitutive approach. The Roman, Germanic,
Babylonian, and Biblical systems.
The Biblical concept of an "eye for an eye:" introduced as a form of punishment
equivalent to the crime committed. We mistakenly tend to think of it as a harsh,
unforgiving form of punishment.
Pre-medieval European communities and aboriginal communities understood crime as a
community event: the response to the crime was to restore the peace of the
community by forcing the offender to make amends with the victim and the community
Punishment was not about enforcing state law or about deterring crime in a forward-
A historical shift occurred when the Normans invaded Britain. People turned away
from looking at crime as a victim-offender occurrence.
William the Conqueror found state law (Royal Law) as a fantastic way to enforce his
own political agenda. He established a centralized system of power.
Henry the 1st - the Son of William - introduced Lege Henrici (Henry's Law) in 1116.
It was a consolidation of royal prerogative over certain offences deemed to disturb
the King's Peace.
The King's Peace was gradually extended through royal proclamation.
First they built roads, and wanted people to be safe on the roads. Then they wanted
peace during special festivals.
Anything that violated the King's Peace was interpreted as an offence against the
King, and he became the symbolic victim of the crime.
Instead of focusing on restitution for the victim, punishment was intended to both
reflect the inviolability of Royal Law and impress the offender with the King's
Instead of being retrospective, punishment became future-oriented and state-
centered. Our current system of punishment isn't victim centered - it's state-centered.
We've seen a shift from victim-offender to offender-state.
The role of the victim has fallen away. They don't have much of a role in criminal
prosecutions. They can't withdraw the charge because the state has carriage; they
can only be called forth as witnesses by the Crown.
Changing Lenses by Howard Zher talks about how the Criminal Justice System defines
and understands offences.
As a society, we've moved away situations where the victim, offender, and families
would get together and make amends.
The 911 mentality - if we're in trouble, we automatically call 911. We're not
supposed to deal with emergencies ourselves. We no longer have the capacity,
authority, entitlement, or skills to respond to conflicts. We have a conception
that problem solving should be left to the "experts."
Conflicts are valuable because they contain the potential for community
participation. They can be an important opportunity to identify and communicate our
social norms and values. Instead, we've adopted the 911 mentality and leave problem
solving to law enforcement agencies.
There's a growing movement to reintroduce restorative justice approaches into the
Criminal Justice System.
The community could collaborate with the Criminal Justice System.
98% of offenders get out of jail. Do we want them to be unskilled and angry?
Some say that a criminal act actually creates a relationship between the victim and
offender. E.g. A theft links the victim and offender together.
VORPS help victims and offenders repair their relationship.
Crime creates a rupture in the community. An approach is needed to engage the
victim, offender, and community into repair.
The harmony of the neighborhood is disrupted - the feeling that we're all safe and
Community Justice Initiatives of faith-based groups, especially of those working
with criminals, like the Quakers and Mennonites, focus on rehabilitating offenders
and reconciling the victim-offender relationship.
Community policing is concerned with personalizing the relationship between the
police and the community.
The police adopt a community liaison role.
Police officers are given more discretion to mediate between parties, to warn
youth, and to bring them home to face their parents. They have the discretion to
divert minor offences.
What's the objective of charging 15 year olds? If you want good relations, you
should caution them and divert them from the justice system instead of funneling
them into it. The community's role: envisioning a different role for the police and encouraging a
community policing model.
Crimes against the state divert the community from having a role in dispute
The police's role is really shifting from being the enforcement arm of the state to
being legitimate mediators.
Principles of the paradigm: the justice system shouldn't be focused on detaining,
deterring, and imposing restitution on offenders, but on making things right by
reintegrating the person into the community.
The victim, offender, and community should have a role in addition to the state -
this role should begin as early as possible and last as long as possible.
Victims: feel vengeance, depression, self-blame ("what if I locked my car?"). They
need some sense of justice, some sense of closure.
Crime undermines our assumption that the world is a safe, orderly place.
Recovery: financial and symbolic compensations for losses.
Answers to unanswered questions: "why me?," "could I have done anything
differently?," "have they caught him?," what happened to my stuff?"
There's an emphasis on the language of healing, and there's been some criticism
For healing to occur, people need an opportunity to express their gestating
negative feelings. Without a sense of closure, healing can become a lot more
difficult and drawn out.
Offenders: are they really misguided victims?
Crimes are often a misguided, distorted way of asserting identity and asserting
power in response to bleak circumstances.
Feelings of low self-worth are compounded by being in prison. Prison also
encourages people to be passive - sneaky and devious, instead of being responsible.
The Norwegian prison system has a reward system for good behavior. It's a more
effective way of managing the prison population than punishing them for bad
Inmates need to learn that they are people of self-worth.
They need the power and ability to make good choices.
They need coping skills for frustration and conflict.
And they need to take responsibility for their actions.
Passive responsibility - when someone just sits through proceedings without saying
a word and gets managed by the justice system. Offenders aren't even required to
hear the victim's statement.
Restorative justice aims to shift the balance of responsibility and accountability
from passive to active. Victim Impact Statements can detail losses, medical and emotional injuries, and
recommend punishments. They're voluntary, but the judge must ask the Crown if the
victim has been informed of their right to an impact statement.
The Victims of Crime Ombudsman offers support on a federal level.
VORPS are drawn from the faith-based approaches of the Mennonites.
They embrace the idea that there's therapeutic value in having the victim and
offender meet and work to reconcile the harm caused by the offender.
If an offender honors their agreement with the victim, no offence will be deemed to
have been committed.
Community Justice Conferencing is used to divert cases from the justice system.
These are restorative justice circles. Cases are typically resolved in 3-4 months
with a $10 000 - $12 000 restitution value.
John Howard Society develops programs based on local needs and awareness.
The roles of victim and offender are often marginalized in the criminal justice
Aboriginals and the Justice System
The Truth and Reconciliation Commission of Canada is a major restorative justice
"The Givens:" Aboriginal people are:
More likely to be charged with criminal offences
Have more serious charges
Less likely to be granted bail
More likely to be held in custody
More likely to hire public defenders who often have no specialization in
constitutional matters and no understanding of native culture and socioeconomic
Many appear without representation
More likely to pleas guilty
Less likely to be granted a plea bargain
Legal normativity - a law's effectiveness will depend on people's perspectives of
how well it delivers justice.
If people felt a larger sense of fairness, the system's ability to enforce and
apply law fairly would be enhanced.
Aboriginals often believe that the legal system's provisions are unfair and that
its penalties are unjust.
A sense of affinity with the system through cultural ownership would downgrade this
fundamental problem of legal legitimacy.
Address underlying causes of conflict
Build meaningful connections in communities Introduce creative solutions for problems within the community
In the ideal, they are locally developed and address local concerns
They introduce dialogue, foster relationships between adversaries, and allow
people, who would otherwise not have the opportunity, to participate.
There's a myth that sentencing circles provide offenders with softer punishments.
In fact, many circles are actually harder to participate in - the offenders have to
face being judged by the community and are expected to express guilt and remorse.
People experience conflict in four ways:
The criminal justice system only addresses the mental and physical aspects of
conflict. Sentencing circles address all four.
The circles encourage participants to express their emotions and respect the
emotions of others.
Shaming the act - not the accused - in front of the community is the first step
toward reintegrating the accused into community life.
An ancient cosmological symbol used to explain many different aspects of life. It
is organized into symbolic fours.
It's a teaching tool that recognizes the organization of knowledge.
The notion of medicine applies fittingly to criminal acts. When the community has
been imbalanced by a criminal act, medicine restores the harmony.
Sitting in a circle also has spiritual significance - the circle symbolizes
wholeness, and everyone sitting in the circle is perceived as equal.
There's certainly physical segregation and expression of rank in court.
In a circle, everyone is equal; they can all see each other and they all have a
voice. Circles express the idea that everyone present is necessary and significant.
Everyone has a turn to speak, and everyone has the opportunity to listen to and
reflect on others' statements while they wait their turn.
There's also no time limit: people can take as much time as they need to think
about what they're going to say. People can even choose to skip their turn, opting
to reflect in lieu of speaking.
Circles provide for the expression and dissipation of emotion.
The ceremonial closure of a circle gives participants a sense of closure.
Circles can be initiated by a judge, prosecutor, or defence counsel. The process is
completely voluntary for both the victim and offender.
The Crown can also appeal sentencing circles. Elders and non-political community leaders must be willing to participate in a
circle for one to take place.
Restoration is critical - the goal is to restore the community's capacity to manage
its own affairs.
In urban environments, aboriginals have different degrees of assimilation into non-
The Truth and Reconciliation Commission
A Canadian example of the process of investigating assimilation and abuse.
The last residential school wasn't closed until 1996.
Their objective was to assimilate natives into Western culture - to sever
children's ties with their families, communities, cultures, and spiritualities.
A large class-action suit led to the Indian Residential Schools Settlement, the
largest class-action settlement in Canadian history. Former students were
compensated, and the commission was founded.
The commission's goal is to advance public awareness of the residential school
system's lingering issues and to educate people about them.
The first step of the healing process was giving people a forum to recount and
share their experiences.
80, 000 people have come forward with claims.
National events have been held across the country. Native culture is celebrated,
stories are shared, and friends are made.
But restorative justice has its limitations: there are problems imbued in the
process of correcting communities eroded by patriarchism, alcoholism, gang culture,
End of Course Issues
Select cases can be taken out of the court system because of their nature. Criminal
offenses of a very summary nature and cases where the parties know each other very
well are examples.
Better communication skills minimize conflict to a great extent.
Anyone can improve their negotiation skills.
Mediation and sentencing circles are great ways of diverting disputes.
However, mediation isn't a very highly regulated field - there's no official
governance over it.
Precedent setting cases should be excluded from ADR - these cases are in the public
interest. They override legal principles, raise constitutional issues, and cause
judges to interpret statutes in new ways.
But how can someone decide if a case will be precedent setting? And where could the
precedent come from if the case is diverted? If a lot of routine cases are diverted, we may also miss out on addressing
ADR does individualize conflict, by giving people more control over their disputes,
but it can also overshadow the need for wider social reform by masking the
underlying aggregates of widespread issues.
There's a saying that "hard cases make bad law." It means that difficult cases
aren't the best cases in which to articulate roadmaps for the interpretation of
future cases. Hard cases are had because they're unique and atypical - what works
for them might not work for less complicated but similar cases.
Cases also become a part of the public domain. Court decisions can spark debate and
Cases are often diverted when the court systems are seriously overloaded - enough
to bring the administration of justice into disrepute.
However, cases diverted from the justice system are diverted onto community
organizations - who have even less resources than the courts! They're certainly
starting to get backlogged too.
There's also a lot of pressure on mediators to encourage parties into accepting
stock agreements that have worked for others in the past. Some critics call this
"shadow justice," a smooth, parallel, systematic "justice" system with fewer
resources and more generic outcomes than the real one.
We're also only shifting from using one set of social resources to using another.
And it's only less expensive if you don't pay the people for what they do.
Balancing power between the parties also remains an issue. This includes balancing
the mediator's power.
However, a mediator can't both be neutral and attempt to balance the power between
the parties - that's a coercive action!
Differences and misconceptions sometimes arise due to poor historical relations
between cultural groups. Cultural competency is a big factor in resolving some
Do we want to advance certain values through ADR?
We should measure success according to the values we want ADR to express. E.g. Were
the crime and outcome proportional? Did the community perceive a fair outcome?
Measuring success is something we're very deficient at.
Different mediators also have different approaches to conflict and different
objectives in mind, a reality people are often unaware of!
Access to justice is also an issue. Youth are often unable to access extrajudicial
measures if they have a bad attitude toward the police.
Police often treat diversion as a first strike option. They also decide on the spot
if youth are suitably remorseful and respectful enough for diversion. Acting cocky
toward the police can preclude youth from accessing extrajudicial measures.
Finally, there's an economics issue. Legal aid services cover all family law
matters, but applicants are given very low priority. The reality is, legal aid is
rarely available. Those facing jail time are at the top of the list. In spite of this, attempts at mediation are mandatory in all Canadian family law
jurisdictions. Who pays for mediation and what is our expectation with respect to
The unanswerable questions: 1) What is it that we hope to achieve through the
various branches of ADR?
How do we judge our success of achieving these goals?
The mediator is a third party whose goal is to facilitate negotiation between the
The disputants often assume that they're locked into a winner takes all battle with
the other side. Mediators try to reduce this adversarial assumption.
Mediators can also lessen people's legal costs and reduce burdens on the court
Here's an idea: if a conflict belongs to someone, it should be theirs to resolve.
Doing so provides for more complex, human, and thoughtful agreements than court
imposed solutions could ever provide.
Mediators work within a framework. They work through stages and are pressured to
move people along throughout the process. Mediators:
Figure out the background to the dispute
Encourage the parties to agree on a process
Help the parties generate solutions and reach agreements during the process
Mediator's can actually exercise power. They can create a somewhat controlled
environment depending on how outcome-oriented they are.
As a matter of professional ethics, a mediator must ensure that the weaker party
has enough information to be equal to their opposer. Power imbalances lead to
Parties are usually more likely to honor agreements that they created.
In Ontario, there's a compulsory three hours of mediation before a court will hear
the parties. The Ontario Human Rights Commission, the Landlord-Tenant Tribunal,
Small Claims courts, and Family Courts all follow this model.
Mediators help establish an atmosphere conducive to good negotiation.
They help parties explore their underlying hopes, fears, desires, and emotions
Some people even say that mediators have a harder job than judges. Unlike
arbitrators, mediators must give their total, undivided attention to the mediation
process. They must process every nuance, facial expression, and gesture the parties
make; any or all of them could be meaningful.
Judges don't usually watch out for body language. At least, not to the extent that
mediators do. Judges only listen for valid claims of entitlement and reflect on the
strength of the parties' arguments. In short, arbitrators' decisions are based on objective criteria(merit), and not on the people.
Mediation rehumanizes the dispute resolution process.
The mediator controls and structures negotiation between the parties, keeping
channels of communication open.
Shuttle mediation is useful when it would be awkward or uncomfortable for the
parties to meet face-to-face.
Mediators steer the parties away from emotional outbursts, arguments, irrelevant
conversation, and other factors that can prolong and jeopardize the resolution
Mediators adequately explore underlying issues so the parties can reach the best
possible agreement that the circumstances allow for.
They help the parties see the dispute from the opposing party's perspective, which
Adequately explore issues so the parties can make the best possible agreement.
Being able to see a dispute from the other party's perspective is tremendously
Reaching a good agreement that benefits both parties and resolves at least some of
their disputed issues
Mediation is generally directed at the parties, catalyzing them to create new norms
for themselves. It's meant to give the parties enough space to figure out what's
good for them.
There's no laws regulating what happens when two parents divorce - i.e. Who gets
Family life has shifting contingencies. All kinds of new things happen all the time
that can completely change the family situation.
In this kind of situation, we want the mediators to work with parties and help them
generate their own solutions.
There isn't much certainty in the world.
A couple of assumptions we tend to have about mediation aren't necessarily true:
The parties might not be equally ready to end their marriage and move on
They may be experiencing different emotions. One party might even think that
there's still hope for the relationship.
That's why two people can argue so much during a divorce - they're not at the same
level of emotional stability.
They might have different strengths and levels of confidence.
There's a premium n spouses with communication skills, confidence, and persuasive ability.
A power imbalance can make mediation useless - it won't be neutral. The mediator
has to explore the relationship's power balance before doing anything else.
A "Looking after the children's best interests" attitude can make women very
argumentative and hostile.
The best interests of the children are, of course, that they have the right to
enjoy a relationship with both of their parents.
Abusive men might want their relationship to continue, and they are known to act
cooperative and open to suggestions during mediation.
Some believe that couples with domestic abuse problems shouldn't even go through
mediation, and they might be right.
Others say that mediation can craft solutions to abuse that might actually be more
helpful than restraining orders, etc.
In the end, different emotional states = an emotional divorce.
But, given the potential for customizing restrictions between the parties,
mediation can be much more effective than the courts.
Power, Power, Power!
Power is a fundamental concept in conflict theory:
Power is always at play in negotiations
There will always be power imbalances between the parties
3) The weaker party is subject to pressure, exploitation, and onerous bargains
generated by the stronger party
Power is complex
Power has multiple sources
Power is situational - it's tied to specific, current content
Power is fluid - its magnitude and modes of expression change as negotiation
Everyone uses power functionally and dysfunctionally, productively and
unproductively, directly and indirectly.
In relation to conflict, power = resources
In fact, power itself is a resource.
Resources can be:
Material - things like money, and goods. The eBay model.
Information - knowledge about rights, insider information. The landlord vs. Tenant
The ability to mobilize others - ability to organize demonstrations, protest in
public, inspire others through speech. E.g. Popmpey and Caesar in Rome.
Protest power can become nuisance power. Blocking roads, tying oneself to trees,
boarding whaling ships.
More power = more ability to influence the decisions of others, and more ability to
influence and control outcomes. When relationships deteriorate, they often become power struggles. A power struggle
is a good indicator that a relationship is becoming disruptive and dysfunctional.
Effects of dysfunctional applications of power:
Relationship is reduced to a power struggle
Both parties lose sight of their interests
Dirty tricks often backfire. The party onto whom power is exercised will resist,
fight back, and ultimately sabotage the aggressor.
So, threats might not always be particularly effective.
The exercise of power will almost invariably escalate a conflict. If that happens,
it won't be satisfied in a satisfactory way.
The ability to threaten another party can actually effect the negotiation process.
The power of potential reward is a huge motivator.
Material, Cultural, and Personal Resources
Material - money, food, oil, property, etc.
Cultural - sense of entitlement, specific norms, rules, etc. A form of power used
to lay claim to legitimate expectations. Understanding another party's "culture of
negotiation" is a skill.
Personal - intelligence, skill, will power, physical and emotional strength,
personality, charisma, determination, etc.
External resources - what the law says.
Designated Power, Distributive Power, and Integrative Power
Designated power - the power and authority that comes with a position.
Distributive power - stems from the ability to overpower and control the other
Integrative power - the power to join forces with someone else to achieve mutually
acceptable goals. E.g. A First Nation and a resource company.
Formal power - a party is better able to control others because of their status or
Procedural power - power over the process through which decisions are made.
Expert power - a special knowledge or skill that others need.
Reward power - having control over something the other party desires
Coercive power - groups with boycott power, strike power, etc.
Persuasive power - the ability to persuade others to take one's position
Referent power - the power of being respected by another, especially by someone who
really looks up to them. They have control over what that party will do and say
because of their influence.
Negative referent power - when one party feels compelled to do anything necessary
to distinguish themselves from the other party.
Nuisance power - ability to cause the other party to experience discomfort.
Normative power - ability to lay claim to principles that legitimate one's
position, making it appear morally correct and righteous.
Violating moral power will cost the person who tries to violate it.
We can manipulate norms and exploit the symbolism of norms in a way that supports
our position. We can even invent norms to support our position.
BATNA - the primary resource for negotiation, The Best Alternative To a Negotiated
Agreement. Power is expressed in response to three conditions:
1) The personal importance of goals
2) The parties' interdependence - i.e. the extent to which one party relies on
another to achieve its goals.
3) The existence of other ways to accomplish one's goals.
Power follows the principle of least interest - the party with BATNA has the upper
hand because they have the power to walk away from the negotiation table. Having
the least interest in reaching an agreement is a tremendous form of power.
The way that facts and arguments are presented can modify the distribution of power
between the parties.
Effective preparation time should be available to everyone so that everyone can
make an effective presentation.
Ultimately, power is both the availability of resources and the ability to use
those resources to achieve one's desired outcomes.
The Relational Theory of Power
Power is a personal resource - it includes language skills, the ability to
understand complex issues, to call in favors, etc.
Power is also a property of the social relationship - it exists to the extent that
others value one's traits, and different traits are more or less desirable in
People with influence are a source of relational power.
So there's this argument that power is not owned by the individual.
Favors work on a principle of reciprocity, contributing to the relational aspect of
Resources aren't so much power as potential power. They might not be relevant to
certain situations or the individual might not have the ability to use them
The Process Theory of Power
Are concerned with the situational nature of power, i.e. How power is used during
the process of negotiation.
Power is defined as a contextual property not owned by the individual.
Sometimes the weaker party can gain situational power by using more effective
tactics, like in the Home Alone movies.
The weaker party could also devote more time and effort into strengthening their
position - e.g. By researching laws, improving their negotiation skills, speaking
in public, contacting the media, etc.
The weaker and stronger parties are interdependent when they're both concerned with
resolving their conflict.
Mediators can step in to balance power between the parties through timely,
strategic interventions. E.g. By spending time with the weaker party to help them
articulate their case. The whole point of noticing power is to shift the context of the negotiation
process from a win-lose process to an understanding, constructive, mutually
We tend to take our own culture for granted - we're surrounded by it every day.
However, not all of our actions are intercultural - they exist on a range of
Whort hypothesized that there's a connection between how we perceive the world and
the language we use to color our perceptions of it.
There's a risk of possible misunderstandings when people from different cultures
communicate with each other.
E.g. American businesspeople start interactions with a formal handshake, while