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American Bar Association - Defending Liberty, Pursuing Justice

FALL 2009

Vol. 6, No. 1

 

LITIGATION

 

A New Addition to the Alternative Dispute Resolution Practitioner’s Toolkit: The Exploration of Restorative Justice and Practical Implementation

Alternative dispute resolution (ADR) practitioners have a toolkit of skills that can be used to resolve and manage conflicts in a constructive manner while creating workable, durable solutions. These tools may include: arbitration, mediation, and negotiation; additionally, restorative justice can also be used as an effective conflict management tool. Restorative justice focuses on the interrelatedness of the human experience and offers an alternative framework for resolving conflict and the resulting harm. Restorative justice seeks to address the question of how to “make things right.” For example in the criminal context, the process of “making things right” includes: identifying the harm suffered by the victim, holding the offender accountable for the harm, and restoring interpersonal relationships within the community. It offers all key stakeholders an opportunity to repair the harm suffered as a result of the criminal offense and create a social contract to build a harmonious community and strengthen the social fabric of the community. This restorative process may occur in a victim impact panel, sentencing circle, or community conference.

Restorative justice can also be used in many other contexts to address conflicts. Depending on the legal context and nature of the conflict, there are a variety of restorative justice tools that may be used. There are three key practical models of implementation, which include: family group conferencing (decision-making meeting that builds upon the resources of family and the greater community), victim/offender dialogue (a face-to-face meeting with victim of a crime, or surviving family member/s and the offender who committed the offense/crime), and circle process (draws key stakeholders together to solve problems, establish support, and build connections). Overall, restorative justice draws upon principles of community-building, reconciliation, and peacemaking. Through the practical implementation of restorative practices, key stakeholders are drawn together to resolve a conflict collectively and address the future impact of the conflict. Hence, restorative justice tools can be used in facilitating dialogues, managing conflicts, and building communities.

This article will deal principally with one area of restorative justice tools—the circle process. It will provide practical tips on how to use the circle process for facilitating restorative dialogues and offer examples of other restorative justice models.

Circle Processes and Restorative Dialogue

In your practice, you may be faced with the challenge of resolving a family dispute, mediating a workplace conflict, or advising your client in a criminal matter. You may discover that engaging in a restorative dialogue could aid in the process of gaining a deeper understanding of your client’s position and transforming the conflict into a resolution. The circle model can aid you in the process of facilitating a restorative dialogue. It can be utilized in a variety of ways for reaching decisions and addressing a harm/wrong. The restorative dialogue takes place in a circle seating arrangement. The circle format is essential because it breaks down any notions of hierarchy within the dialogue, thus creating a sense of equality and respect. Each participant is equally valued in this storytelling process because, as Kay Pranis once wrote, “every person has a story and every story has a lesson to offer.” Circle processes create an opportunity for the story of each participant to be shared and to discover answers to unresolved issues, like, What is the root cause of the conflict? What is the impact of the conflict on each individual? What needs to happen to make things right and repair the harm? As these questions are explored, participants are engaging in consensus building as they explore methods for addressing the underlying conflict that resulted in the harm.

During the circle process, a talking piece is used that circulates as each person shares his or her story and perspective. The talking piece is chosen by the group and may have a symbolic meaning based on cultural practices or shared values. As the talking piece is passed around the circle, each participant is given uninterrupted time to share his or her story. This format promotes full participation and active listening. The talking piece is passed around the circle as the restorative dialogue continues to emerge.

Key Tips for Facilitating a Restorative Dialogue

In preparing to facilitate a circle process and serve as a circle keeper, there are a few key things to keep in mind. Circle keeper and restorative justice facilitator, Crixell Shell, offers four practical tips to aid you in the process. First and foremost, preparation is key for the success of a restorative dialogue and circle. As a circle keeper, it is important for you to research the background of the group participating in the circle. This is essential in order to formulate the purpose of meeting and understand the context of the conflict. During this process, you will need to find out the reason for the circle, the composition of the group, logistics (where the circle will take place), and the relationships of the people involved. You should also begin collecting talking pieces and other items to make the circle a safe and comfortable atmosphere.

Additionally, you will need to prepare each participant. Begin by providing a premeeting with the participants, during which you explain restorative justice and the model that will be used. Also, discuss the format of the circle and the process. When the circle process begins, the circle keeper should check in with all participants. Initially, the talking piece should be passed around the circle to allow participants to introduce themselves and express how they are feeling.

Second, set the stage by developing ground rules and identifying key values of the circle participants. As the circle keeper, you must create an atmosphere that fosters trust and makes people feel safe. To do this, circle keepers rely on guidelines or rules of engagement. Guidelines are the “rules” of the circle. The guidelines are reached by consensus and everyone should feel comfortable with them, the circle keeper can give a few suggestions to start the process. Examples include: be respectful, do not interrupt others, allow for the ability to request a caucus, and so forth. After the guidelines are established through consensus, they should be posted so everyone in the circle can refer to them as needed. Also, circles offer an opportunity to build a sense of community; therefore, it is essential to identify the shared values of all participating. Common values may include respect, honesty, and fairness.

Third, circle keepers should remain flexible. Circle keepers have to remember that although the circle has a purpose, it can move in many different directions. The restorative justice process is organic and constantly evolving. It is important to give a voice to all members in the circle and empower them to use their voices. Also, remember as the circle keeper you can redirect the circle when talking piece returns to you.

Finally, the time spent in circle should have a deliberate end that is referred to as closing. It will help all participants to leave with a sense of closure and finality. This is true even if the participants plan to meet again.

For additional guidance related to circle processes, you may consider reading The Little Book of Circle Processes (Pranis) or visit the International Institute for Restorative Practices website at http://www.iirp.org/.

Conclusion

Using circles to create restorative dialogues is only one example of the power of restorative justice tools. Restorative practices can also be used in a variety of ways in your practice. Examples may include: family law/manage family conflicts (family group conferencing), employment law/workplace conflict (talking circles), and international law/national conflict (peacemaking circles). The possibilities are endless! As you begin to explore restorative justice further, you will find that this new addition to your toolkit of skills is indispensable and valuable for managing and resolving conflict. These tools will aid you in moving beyond conflict management to transformation and restoration.

Artika R. Tyner is a mediator and restorative justice facilitator. She also is a clinical law fellow at the University of Saint Thomas School of Law in Minneapolis, Minnesota. Contact her at Artyner@stthomas.edu, or visit the clinic’s website at http://www.stthomas.edu/ipc/legal/.

 

 

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