March 31, 2020 Dispute Resolution Magazine

Expanding Options for Restorative Justice

When a Victim Decides Not to Participate, the Use of Surrogates Can Bring Cases to the Table

Kristen M. Blankley

Janie is a high school sophomore who never quite fit in. Unlike most of the other girls at her suburban school, she is being raised by a single mom with little disposable income. Janie doesn’t wear the latest fashions or have the newest smartphone. Ever since sixth grade, Alyssa has picked on Janie, making fun of her clothes, her hair, and her lack of a boyfriend. One day, Janie, who is fed up with the bullying, spray paints the word “SLUT” on Alyssa’s locker. The school principal and resource officer quickly identify Janie as the “offending” youth. Confronted and asked to explain, Janie takes responsibility for the incident. She is charged with vandalism, her first offense in or out of school.

As part of a diversion program, the court in the district where Jamie goes to school allows first-time youth offenders to participate in a restorative justice (RJ) process such as victim-offender mediation or conferencing. Janie is interested, but still stinging from Alyssa’s longtime taunting, she refuses to sit in a room with her schoolmate. Alyssa has no interest in participating, partly because she views the process as a waste of time and partly because she knows she might have to admit her bullying. Should Janie be prohibited from participating in the restorative justice program – and possibly gaining the benefits of diversion – because Alyssa declines to participate?

Traditional mediation programs require the voluntary participation of both parties, and one party’s refusal to participate in the process is usually grounds to terminate the process. Restorative justice processes, however, have different underlying philosophies and goals that can still be applied and accomplished without the participation of the person who was wronged. This article discusses how the principles of restorative justice are achievable through the use of victim surrogates and suggests some best practices for the use of surrogates.

Using surrogates in restorative practices

Unlike traditional criminal justice, restorative justice focuses on the accountability of the person who caused the harm, the needs of the wronged party, and the reintegration of both into society. Restorative processes seek to account for the needs of the person who caused the harm, the person or persons harmed, and the community, with the ultimate goal of repairing relationships and reducing recidivism. Through dialogue, the offending party can express accountability or remorse, and the victimized party may be able to speed the process of healing through understanding and restitution.

One of the most common RJ processes is victim/offender mediation or conferencing, which is a process in which the wronged party and offending party meet together to discuss the event and determine the best resolution. Early versions of these programs used the term “victim/offender” mediation, focusing on the categorization of the parties as if they were in criminal court. Today many programs today use terminology such as the “person who caused harm” or the “victimized party” to emphasize the relationship between the two, as opposed to their procedural labels. Whatever the program is called, during the in-person meeting, the parties generally have three conversations, each from their own perspective: 1) What happened? 2) What are the effects of the incident? And 3) How can the situation be made better? Successful conferences usually result in reparation agreements, which might include apologies, restitution, community service, or other terms agreed on by the parties.

Intake processes determine whether cases are eligible for RJ. Some programs, for example, require a participant to admit fault or responsibility as a condition of participating. Using RJ is a challenge when an alleged offending party maintains innocence, although some programs allow participation if that party acknowledges accountability but not true remorse. Intake is also an excellent time to learn whether all the parties are interested in participating in the process and whether they can have a conversation and sit together.

Some parties may be willing to attend only if they can participate from different rooms, as happens in a caucus-based mediation. In other instances, a party, usually the wronged party, may not be willing to participate in a conference at all, as happened with Alyssa. Sometimes the wronged party has experienced trauma from the incident or is simply afraid of sitting in a room with the person responsible for the original harm. Occasionally, the person who was harmed may not appreciate the process, as Alyssa indicated, and its potential value to both parties. In cases involving youth-on-youth incidents, the underlying relationships may be complicated, as they were with Janie and Alyssa, with some level of fault or responsibility on both sides. Even if a party does not participate in the conference, during the intake process the facilitator can still determine what the person who was harmed would like to see out of the process – such as restitution, an apology letter, or other terms that are satisfactory to all concerned.

When the person who was harmed refuses to participate, the use of a victim surrogate allows an offending party to participate in the process – and gain from its benefits. A victim surrogate stands in the shoes of but does not role-play as the person who was harmed. The most effective victim surrogates are those who have lived through a situation similar to the case at hand. In the case of Janie and Alyssa, a good surrogate would be someone around their age who has endured bullying or a hateful act. The victim surrogate participates in the conference by sharing the surrogate’s own story and how it affected the surrogate. The surrogate will know in advance the type of remedy that the person who was harmed is seeking and will be authorized to agree to a resolution on that person’s behalf.

Even with a stranger sitting in the chair of the person who was harmed, the person who caused the harm can still realize many of the benefits of the RJ process. The offending party must still account for his or her actions leading up to the incident and must listen to the surrogate’s story about being the victim of a crime. In listening, the offending party may be able to empathize with the surrogate’s situation and draw comparisons to his or her own past experience. Because the surrogate has authority to agree to a reparation agreement, the person who caused the harm will still be accountable to the harmed party and attempt to make that person whole.

Best practices

The use of surrogates can bring more restorative justice cases to the table, but people facilitating RJ dialogues must devote special care to finding, training, and choosing surrogates. While best practices and standards for surrogates are still emerging, some basic principles are worth noting.

Prior to their use in any case, surrogates should receive training in restorative justice, including specific training on the processes in which they will participate. Program administrators should begin by teaching surrogates the underlying purposes and values of restorative justice and the surrogate’s role within that program. Surrogates should be instructed to share their own experiences and not to role play for the victimized person. In addition, surrogates should receive training on their specific role in the process, including what they are expected to contribute to the conversation. Surrogates need not be trained in mediation, although those who have been through mediation training may need less direction in how to approach RJ processes.

Any effective restorative justice program should strive to have a broad roster of surrogates. The program should seek to recruit surrogates with diverse ages, genders, races, ethnicities, and sexual orientations. Surrogates who have a variety of experiences as victims of crime can provide real detail and immediacy. Depending on the program, surrogates may be recruited from schools, including colleges and universities, community organizations, and mediation organizations.

When an RJ program has broad diversity within its surrogate pool, the program administrator can use a surrogate in an individual case who shares salient traits with the person who was harmed. If the offense involves burglary of a home of an 85-year-old woman, a surrogate in a resulting restorative process should be an older woman, particularly one who was the victim of a crime involving property. If the offense involves the theft of name-brand tennis shoes from a 20-year-old man, the surrogate’s age, gender, and experience should all reflect those facts and circumstances as closely as possible. In cases involving victimized parties who are young, the surrogates should be from the same general age group, as an older surrogate’s story would necessarily be a very different one.

A restorative justice program in the school system in Lincoln, Nebraska, innovated surrogate practice when it began training youth who had caused harm in the past to serve as victim surrogates. Project Restore, an RJ program run in Lincoln Public Schools, began this practice when a young woman contacted the program coordinator asking how to give back to a program that had helped her at a very difficult time. The program thereafter began recruiting other young people who had gone through the program to volunteer as surrogates, which helped diversify the pool of available surrogates with real-life experience (and the added benefit of firsthand knowledge of RJ processes).

No program will ever be able to find and use a surrogate who is a perfect match for the victimized party in every case. In cases where a close-match surrogate is not possible, a surrogate can still stand in for the victimized party to allow the cases to proceed, but the surrogate should take on the role of an interested community member who can impart some thoughts on the effect of crime generally or within a given community. The use of a community surrogate makes the experience for the party who caused the harm less immediate and is certainly not a perfect solution, but with one, the offending party can still be asked to engage in a dialogue about the specific harm caused, the effect of that harm, and a reparation plan.

Conclusion

In Janie’s case, the RJ facilitator met with Janie and Alyssa separately and quickly ruled out the option of a joint conference. The facilitator learned that Alyssa was interested in receiving a written apology, as well as in Janie’s performing community service at an animal shelter, a cause close to Alyssa’s heart. Janie attended the conference, where she met Caitlin, a youth trained in RJ who had been bullied in the past. Janie and Caitlin participated in the conference, discussed the events and consequences from their own point of view, and both gained new perspectives. Ultimately, Janie agreed to write the letter of apology to Alyssa and volunteer at the local no-kill animal shelter.

The refusal of a victimized party to participate no longer need be an automatic disqualifier for RJ cases. As more RJ programs incorporate the use of surrogates, exercising care in selecting and using them, more individuals who caused harm will be able to benefit from the very real, long-lasting benefits of restorative justice.

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    Kristen M. Blankley

    Kristen M. Blankley is a Professor of Law at the University of Nebraska College of Law, where she teaches, writes about, and practices dispute resolution and restorative justice.