Restorative Justice and Mediation: Is there a difference?

Published: Tuesday, September 20th, 2016


Restorative Justice Practitioner, Charlotte Calkin, writes about the differences and similarities between Restorative Justice and Mediation process. (All views are the writer’s own)

I started to think about this blog last November, after I was invited to facilitate a demonstration of the restorative process using a neighbourhood dispute in front of an audience. At the end of the demonstration a restorative facilitator said that watching this demonstration, that mirrored her own practice, had given her lots of confidence. A mediator then spoke, saying that she felt that what she had witnessed was a mediation process. This set me thinking and I asked many colleagues – most of whom are practising mediators and restorative facilitators – what they considered to be the fundamental differences between the two processes … mainly because I realized I needed a better understanding myself.

6+ months later and I am finally writing up my thoughts and all the insights I received. I don’t think these are right or wrong – I am not even sure that there is a right or wrong or indeed a definitive answer – but I hope this comes closer to a clarification and at least helps us to frame a discussion.

I’m going to start by quoting Paul Holder (co-ordinator of the B&NES Restorative Justice service) who describes mediation thus:

Mediation is a facilitated dialogue, mostly used where people are in conflict. Its strength lies in the parties co-operating in joint problem solving to find a way forward which addresses the needs and concerns of both parties.  

Most of the mediators I spoke to refer to their practice as conflict resolution. I am aware that to use the blanket term mediation is almost glib, as there are so many different types of mediation: evaluative mediation, facilitative mediation, transformative mediation, narrative mediation, mediation with arbitration. Seeing this list, it is almost impossible to use the term ‘mediation’ narrowly, but Paul’s description I think neatly describes what many of us perceive mediation to be. And this description is different to how I see the restorative process. We are less in the business of problem-solving jointly, and more about the feelings behind the impact of the harm and managing outcomes. Many, including myself, feel that when working restoratively we are less about the conflict and more about the impact of the harm.

Ultimately the restorative questions sum up the restorative process:

  • What happened?
  • Who’s been impacted?
  • What can we do to make it better?

– and the process required to work through these 3 questions is a different process to mediation. Some facilitators I spoke to said that it is the use of a restorative script that makes the restorative process different to mediation.  But while everyone follows the restorative questions, an increasing number of agencies do not use a script in their restorative work. So we cannot say definitively that the difference between the two processes is the use of a script.

I interviewed many people and the views of these individuals and agencies on the differences between the two practices vary greatly. This matters, because as Steve Jones, CEO at Remedi says;

The questions of the difference between Mediation and RJ and when each should be used are increasingly important. This is primarily the case because as you move around the country, even around a county, definitions and understanding change – particularly amongst contracting bodies.

For some people the definition is very clear. Sussex RJ partnership have spent a lot of time looking into clarifying this: for them if there is a clear harmer and harmed person then it is a restorative process and if there is no clear harmer and harmed then it is mediation. Many would agree with this view. Grace Loseby from the Brighton and Hove Community Safety Partnership delivered their presentation on this issue in May. The harmer/harmed view is also that of Paul Holder – he has a model that shows when the paths split into mediation or RJ. Paul has been a mediator with Bristol Mediation for over 20 years. The conversations I had with him and Nancy Copplestone, a restorative facilitator with the Neighbourhood Justice Team and a mediator with Bristol Mediation, were very helpful.

This thinking is also supported in a paper by Aaron Lyons:

  • Conflict resolution (mediation) is often approached with an assumption of relative “moral balance” between parties (Zehr, 2010). Restorative justice, on the other hand, is approached with the assumption of moral imbalance that has been created by a harmful act, and seeks to re-balance relationships through dialogue and reparation. The premise is that an individual(s) causing harm has offended against a victim or target and has obligations toward personal accountability, whereas the victim has no such obligations.
  • Conflict resolution practice depends on the negotiability of issues. However, restorative justice generally assumes the premise that one party is responsible for an offence or violation of the rules or norms of the organization. In cases where there is clear violation of societal norms, rules or laws, the act of such violation is non-negotiable – even if the particulars of how the situation will be satisfactorily resolved can be subject to negotiation.

So, is it simply whether there is a clear harmer or harmed person?

Steve Jones offers another variance:

A number of Police and Crime Commissioner areas have defined the difference between mediation and Restorative Justice quite clearly in regard to the source/nature of the case. If it’s within the criminal justice arena at any level with a clearly defined ‘victim’ and ‘offender’ then its RJ. If its outside the CJS – prevention work, anti social behaviour, neighbour dispute, schools etc. – then this = mediation.

But Steve then goes on to say:

Whilst I think this is useful in enabling clear lines of demarcation I’m not a huge fan of it as I don’t feel it does much to further what I believe should be our (proponents of ‘Restorative’) primary objective. That being to champion ‘Restorative Approach’ as the umbrella or catch all term beneath which Restorative Approaches to … justice, education, conflict resolution, neighbour dispute, anti social behaviour, education, social care, families, relationships, work place disputes … etc. etc. can all exist comfortably.

Nancy from Bristol Mediation adds:

I suggest that that the term “restorative” is an umbrella which covers a range of techniques such as restorative justice conferencing, victim offender mediation, neighbour and community mediation, family group conferencing, restorative circles, indirect and shuttle mediation. The terms mediation and restorative justice are not exclusive and can be interchangeable depending on the context. Perhaps it is clearer to describe mediation as a process and restorative justice as an overarching philosophy.

And I tend to agree with them both – the restorative forums I run have no clear harmer and harmed and are simply designed to bring parties together to facilitate healing the conflict. Nor do they arrive at my door as a result of the criminal justice system, so are they not in fact restorative? I am comfortable that I am practising along restorative principles and within the restorative ethos but my work falls way outside the criminal justice system. So what is it that makes it restorative? And how does it differ from mediation/conflict resolution?

Many people said that mediation focuses on the conflict whilst restorative work focuses on the harm. Becky Beard is a trained mediator as well as heading up Restorative Gloucestershire, and this view is more along the lines that she works with:

I believe that when considering whether to use a restorative or mediation approach, it is not whether there are distinct harm and harmer roles, but more to do with whether there has been harm caused and whether the relationship needs repairing.

Becky gives an example of a case where a restorative outcome with warring neighbours proved to be more fruitful than mediation, despite no clear harmer and harmed:

One of the best examples I can use to describe it in practice is an on-going neighbourhood dispute. Neighbours have been in dispute for over three years and mediators tried to get involved to resolve the conflicts. After months of visits, it became clear that the mediation could not go ahead as no party would take any responsibility for the conflict and eventually the process had to be stopped.

12 months later, the relationships had continued to deteriorate and we were asked to try mediation again. Instead, two very experienced restorative practitioners used a restorative approach with the neighbours, setting clear boundaries and ground rules, so that they would be addressing the harm caused by the conflict and breakdown of relationships, rather than mediating a discussion about boundaries. In this case there are no defined roles but approaching it from an RP perspective has allowed for all of the parties to think about the harm they are all causing and feeling, which has led to more progress than focusing on a negotiable outcome.        

I certainly think that where the focus of the meeting lies and how the restorative process can create this different emphasis marks a fundamental difference between the disciplines.

Mediation and restorative work both follow a process, but how do they differ?

Both involve preparatory meetings, but there are often fewer preparatory meetings in mediation and in mediation the body of the work – discussing, negotiating, decision-making – is done in the ensuing meetings where both parties are brought together. This I feel is the crux of the difference.  It is important to make it clear here that this is a difference in the process, not that one or other method is preferable.  In mediation it is often necessary for this problem solving to be achieved mutually and together, within the meeting space. Because in restorative justice we are focusing on the harm AND how the parties have been impacted by the harm, much of the work is done before the meeting that brings the parties together because our outcome is to “do no harm” ourselves.

Because we are focusing on the harm:

  • we cannot afford to create more harm & therefore ground rules may need to be implemented so that we don’t get stuck in differences relating to congruence of stories.
  •  much of the potentially more explosive emotion has been managed before the parties are brought together.
  • outcomes and expectations have been discussed before the meeting so that expectations can be managed and the parties need to have been explicit in their expectations and needs from the meeting in order for them to be appropriately managed.
  • and on the impact of the harm, we cannot afford for people to become re-victimized, so our work is not about creating space where the nuts and bolts of negotiation can take place … That, I think, is a space for mediation.

And, almost always, in RJ we only have one meeting.

Becky Beard defines the differences in the following way:

  • Less preparation time. A restorative process may take months of preparation and the final conference can be relatively short. Whereas in mediation there can sometimes be just one pre-meet and then the mediation sessions.
  • There needs to be an acknowledgement of the harm caused for a restorative intervention to take place. This is not always the case in mediation.
  • The ‘negotiation’ of outcomes can take place during the mediation session. With a restorative intervention, the possible outcomes and expectations are managed as part of the preparation stage.
  • The language and structure used is different. The mediators paraphrase during the session, sticking to facts. In a restorative intervention/ conversation, the focus is on thoughts and feelings and the consequential effect. But again this can differ with different organisational practice.

In both spaces the mediator is impartial and neutral and non-directive and the participants work to create their own outcomes, but in restorative practices these outcomes have been managed beforehand. But Nancy also recognizes that the facilitator in mediation has more of a role in ‘summarising’ and ‘re-framing’ and using different techniques to those used by facilitators in restorative work.

In restorative work there is a clear focus on managing expectations and outcomes whether or not there is a clear harmer and harmed person. The parties are experiencing harm irrespective of who initiated it or whether one or both are culpable and our role is to make sure that we, during this piece of work, ‘do no harm.’ Ultimately, the whole premise for entering the room in RJ is different, because it is underpinned by the overriding need not to re-victimise. We will have done all we can in the preparation to minimize the risk of that happening and if the meeting was not going to have fruitful outcomes we would not bring them together.  We are not in the business of negotiation. It is important to state that some mediation processes include longer preparation time and the length of the preparation time does not imply a more or less successful process. When negotiation takes place during the sessions in mediation it is because that is an important tenet of that process.

In restorative work there needs to be acceptance of responsibility for actions or harm caused by the parties.  When a party does not accept that they have caused harm by their actions I think it is very difficult to work restoratively; then mediation might be a better option.

So where do we place our noisy neighbour who was upsetting his fellow neighbours after all of this discussion?!  On reflection, I feel because our parties entered the room willing to accept responsibility and hear the harm caused, willing to agree to changes  – and with a clear understanding that there would be an outcome agreement and what the agreement would look like – I believe it fell within the restorative field. As restorative practitioners we are less about resolving conflict (often resolution isn’t possible) and more about moving forward from the harm caused having had an opportunity to discuss it and then look at appropriate reparation and changes. For me this does not require a case being under the CJS, or a clear harmer and harmed, but an understanding of why the restorative process is being employed and for what end.

Steve at Remedi, who uses both mediators and restorative practitioners in his service, feels that the practices have become blended and he hopes that both services can learn from each other because, as he says, in the end “all roads lead to Rome.”  Ultimately this blog is not about what’s right but about what is most useful to those who need our services and essentially a blending that delivers the benefits of both disciplines will very probably be the most beneficial outcome to the parties involved going forward.

 


Charlotte Calkin
Restorative Engagement Forum

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