Restorative justice, mediation and ADR

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.