Restorative justice, mediation and ADR

& Peacebuilding, Restorative Justice.

Restorative justice (RJ) is often associated with mediation and Alternative Dispute Resolution (ADR).  I was reminded of this at the Conference of the European Forum for Restorative Justice in Bilbao, Spain, this spring.  Victim offender “mediation” was the practice most commonly mentioned and the lines between ADR and restorative justice often seemed unclear.

Confusion about this may obscure some important practice issues.  It certainly can cause problems when working within the criminal justice system.

There are some significant overlaps in theory and practice between RJ and ADR/mediation: mediation, for example, does require some of the same skills as restorative practices, and some of the underlying assumptions or theories are similar.  Moreover, restorative practices such as circle processes can be used in many of the same kinds of situations in which one would use ADR approaches.  In a broad perspective, encounter approaches within RJ can be seen as conflict-resolving, problem-solving approaches to harm.

But there are also some significant differences, especially when applied to the kind of cases that are dealt with in the criminal justice realm.  My colleague Lorraine Stutzman Amstutz, an experienced restorative justice practitioner and trainer, often comments that it can be easier to train total newcomers than to train experienced mediators to do RJ work.

In what follows I will outline what I see to be some of the differences between RJ and ADR/mediation.  I am aware, however, that in doing so I am using broad caricatures and depending on the specific approaches, these differences may not in reality be so clear.

* ADR and mediation usually assume that there is a kind of moral balance between parties.  RJ assumes that all participants are moral agents and acknowledges that moral responsibility may be shared; however, there is usually a moral imbalance that must be explicitly acknowledged.  Someone has caused harm and someone has been harmed, and that fact is placed in the center of the encounter.

* Because of this moral imbalance, the “neutral” language of ADR can be difficult in criminal cases, especially in situations of severe violence.  Someone who has lost a child through murder and is being invited to meet with the person responsible may find the language of “mediation” to be offensive.

* Although all parties may have some responsibility for the event and/or the outcomes, RJ usually provides space for wrongdoing to be named.  Also, the process is designed to ensure that satisfactory and appropriate accountability occurs.  In my experience, this is rarely part of ADR  – though it could be.

* ADR often envisions its facilitators as neutral or impartial; RJ practitioners are more likely to see their role, in the language of Dave Gustafson, as “balanced partiality.”  RJ facilitators cannot be neutral or impartial about the harm that was done, yet must care equally for and support all parties.

* Many ADR cases require little or no separate, face-to-face preparation with the individual participants or groups before an encounter.  In most RJ programs, individual preparation is seen as essential and in severe violence cases, preparation and follow-up is extensive.  Training in the dynamics of trauma is usually an important part of facilitator training for severe violence cases.

* Although approaches vary, ADR often negotiates to identify and agree upon rationally understood interests.  While RJ may include interests, it embraces the emotional level as well, understanding the expression of feelings and the telling of stories to be central to the process.

* Much ADR tends to be outcome-focused.   While realistic and workable agreements are important for RJ, in general RJ is usually more relationship-focused and the process may be as important – or more important – than the outcome.

* RJ is explicitly principle-driven and value-based; ADR could be but often isn’t. (Indeed, one of my European friends at the Bilbao conference commented on what seems to be a distinct discomfort with value-based approaches in Europe.)

* ADR is increasingly recognized by courts as appropriate for use in civil cases.  Partly because of this association and partly for the reasons above, criminal courts are often resistant to its application in criminal cases.  RJ language is more easily understood than ADR language in this context.

* Most important, in my view, is that RJ is not a specific process but rather a set of guiding principles and values, a framework for identifying and addressing harms and obligations.  It is more encompassing than specific encounter models.

Again, these are rough characterizations that may not be always or entirely true, but it is useful to be aware of potential differences and tensions.   Blurring the lines can lead to misunderstanding or bad practice.

Of course, there is also much that both fields can learn from each other; I addressed some of this, for example, in an article for the Journal for Peace & Justice Studies, Vol. 18, No. 1&2, and may pick up this topic in a later blog entry.

I’d welcome dialogue on this.

7 Responses to “Restorative justice, mediation and ADR”

  1. Brian Steels

    Thanks for all of your work. This is a very helpful statement and hopefully will reduce the confusion. Yes, I too find the European use of mediation is less about encounter and values whereas RJ certainly highlights those points. Again, thanks Howard.

  2. David Yusem

    Thanks Howard for your well articulated thoughts on this subject. I have been thinking about this for some time since I direct both a community mediation and a restorative justice program. Mediation has the same problem that RJ has in the sense that many people are calling what they do mediation or restorative when I believe they are not. When an attorney holds a settlement conference and the parties never meet, that does not constitute mediation in my opinion. When a mediator makes a recommendation to a Judge in a child custody case, I would not call that mediation. A recommendation compromises their impartiality. When an RJ program puts a person who harmed and a person who was harmed in a circle without proper prep work, they are doing a disservice to restorative justice as well as the folks participating. There are many more examples of this model drift. At the same time, I believe mediation as practiced in a facilitative model by a community mediation program, can be incredibly restorative and allow for examination of the emotional needs of the parties… going beyond interests to needs.

    One difference I do see between mediation and RJ is that RJ takes conflict resolution one step further and seeks to understand the harm caused by the situation and allows for accountability to this harm.

    I tell all of my mediators who also facilitate group conferences or do circle keeping that this is not mediation. In training we also spend time on the differences between the two and to be mindful of them. Thanks again Howard. I so appreciate your work.

  3. Virginia Domingo

    Thanks Howard, yes It is very common at least in Spain to hear people talking about mediation in criminal matters, but they haven’t heard before about Restorative Justice. As you say RJ is much more is about victims and about harm, people usually speak about victim-offender mediation and balance of power, ( indeed we can’t talk in RJ about balance because there is a victim and an offender, so never exist two equal parties…). Because of that when I was in Bilbao, I found very interesting your presentation about the trauma of victims, this is the starting point to heal the wounds and to try to forget the role of victim, continuing with their lives and of course avoid recidivism…thanks a lot Howard.

  4. Bernard le Roux

    I am grateful for the clarity with which you explain the differences between RJ and mediation in your blog article. As a European mediator working in Sweden with crime-related mediation, this has been an issue for me for some time now. The use of the word mediation (VOM) in connection with RJ is confusing and in many respects misleading.

    We have chosen, in the City of Gothenburg, to base our practice on Transformative Mediation rather than on Restorative Justice. We are clear that we do not have a “balanced partiality” as mediators and do not seek to address the moral imbalance between parties. Rather, we follow the approach that parties themselves are capable of making choices and decisions following the crime, given proper support. We support party empowerment through allowing them these choices and support them as they move from relative isolation to openness. We also base our practice on principles and values rather than outcomes and seek to avoid influencing content as well as process. The results of this kind of mediation have been very positive, particularly when used in conjunction with professional support for both victims and offenders.

    I completely share your opinion that the European – and I daresay general – confusion between mediation and RJ is problematic. I fully respect the values and principles RJ practitioners choose to work from, but to claim impartiality or neutrality (as is done in Sweden) is confusing. The confusion damages both the reputation of RJ and of that of mediation. The other difficulty with the way RJ is implemented – at least in here – is the simplification which occurs when offender and victim are clearly labelled and the RJ process seeks to support the victim in one way and the offender in quite another. The over-emphasis on remorse and apology further complicates the issue, especially when the criminal justice system rewards public these by reducing sentences.

    It would be interesting to raise this discussion to the level of principles and values. It is here one sees the differences between the two approaches most clearly. The RJ view of crime and conflict, its view on human capacity and that on process differ significantly from the Transformative principles and values. There is no right and wrong, but without clarity, as you eloquently point out, interventions can become bad practice and will not serve victims, offenders or society at large.

    I would gladly elaborate on the approach we have developed and the reasons for its effectiveness – along with its shortcomings. I also welcome the discussion about the true nature of both RJ and the various forms of mediation practice. It is certainly long overdue.

  5. Timothy Hedeen

    Thanks, as always, Howard–
    For your clear and thoughtful articulation of RJ principles. I offer a very similar summary of the distinctions between RJ and civil ADR in my courses. I’d like to offer a few thoughts in response to your bullets above, too:

    * Most important, in my view, is that RJ is not a specific process but rather a set of guiding principles and values, a framework for identifying and addressing harms and obligations. It is more encompassing than specific encounter models.

    I’d note that ADR (often re-titled as “Appropriate DR” as at the U of Oregon program) is likewise not a specific process, but an umbrella term for a stable of processes. Shared across these processes are principles of party self-determination (at least with regard to choice of process) and interest-based approaches to conflict (vis-a-vis exclusively power- or rights-based).
    Community mediation programs and actors have even more in common with RJ, to my thinking, with strong emphases on relationships and a ‘clean’ process–as you say, “process may be as important – or more important – than the outcome.”

    * ADR is increasingly recognized by courts as appropriate for use in civil cases. Partly because of this association and partly for the reasons above, criminal courts are often resistant to its application in criminal cases. RJ language is more easily understood than ADR language in this context.

    I couldn’t agree more, and have spent a couple years working on an ABA project titled Mediation in Criminal Matters.
    I took pains to explicate the values and benefits of RJ at the training, and believe that programs within and beyond the formal justice system can adhere to RJ values while working within a structure that places priority on efficiency and outcomes.
    This isn’t always easy, and I very much enjoy the analyses set forth by Ratner and Woolford–especially their observation that some RJ programs must occupy an “oscillating space” between government-sponsored and community-sponsored interests, values, and structures.
    Davis once observed that in the mediation field, “Form doesn’t follow function; form follows funding.” And I’ll paraphrase Brubaker’s wisdom that in institutional relationships marked by power imbalances, “it’s no coincidence the terms ‘cooperation’ and ‘co-optation’ are hard to distinguish.”

    Returning to the thread here, it seems we have some shared interest in further consideration of mediaiton/VOM/RJ along both principles and practices. I look forward to the conversation.

  6. Catherine Bargen

    Howard, this is so helpful. I plan to share it with colleagues. Rock on!