The Forms Of Mediation In Canada

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Canada has had a long and contentious relationship with criminal law and its approach to punishment. The early Canadian societies of mostly French and English settlements evolved their notion of punishment through a predominantly religious lens. Christianity possessed a great deal of authority in the culture, and exemplary punishments were preferred. The Grand ordonnance criminelle (1670) enacted in New France codified this principle into colony law, authorizing the state’s obligation to prosecute crimes against society. The punishments contained within needed to be proportional enough to have the perpetrator pay for their crime as well as set a general example to the population in order to deter. Punishments handed out in the time period included execution, whipping, branding and much more, all of which were carried out in the public sphere. This particular view of the state emulated the retributive theory of punishment, which seeks to coercively correct offenders because they deserve to be punished.

With the advent of the Enlightenment, a number of legal and penal improvements were made, giving rise to new humanitarianism. Thus, the rise of imprisonment as the primary avenue of punishment was observed. Canada’s first penitentiary was built in Kingston in 1835 and the move to codify criminal laws was begun by the government, eventually resulting in the Dominion’s first codified criminal code in 1893. Kingston Penitentiary was built on the premise of mandatory labour to reform the inmates – the existence of work houses for vagrant’s and thieves in England largely contributed to this idea of social deviants becoming useful members of society by instilling in them a strong work ethic. As a result, rudimentary ideas of rehabilitation came into play around this time – people could be reformed and become productive citizens of society, but only through the coercive efforts of the penal system.

As the concepts of rights arose, so did an awareness for the criminogenic needs of offenders. The conversation shifted from an approach to reactionary form of justice – in which a person commits the crime and does the punishment in a linear fashion – to a humanitarian one, in which legal and penal systems are progressively designed to care for the needs of those who commit the crimes and those who are harmed. According to Woolford, criminal justice programs are increasingly aimed at rehabilitative goals, such as reintegrating offenders, healing victims and dealing with crimes in the community through a restorative lens. He touts this form of collective conflict resolution as a better functioning model of repairing the harm caused by a crime, and hopefully reducing the offender’s recidivism chances.

While it is difficult to present a clear-cut definition of restorative justice, there do exist a few key characteristics. These include, in summary: conflicts as knowable entities, communication as the means through which conflict is discovered and creative problem solving can occur in a non-coercive environment, human behaviour as a changeable entity, and his belief that a society built upon effective communication will be more peaceful and progressive.

Though there are many forms of restorative justice in current use, this paper will focus on the 3 most popular forms of mediation. These are as follows: Community Mediation, Victim Offender Reconciliation (VOR)/Victim Offender Mediation (VOM) and Healing Circles. For each, I will lay out the origins of the practice, as well as its goals and criticisms associated. There will a section of the paper focusing on the role and responsibilities of the mediator in restorative justice programs. The experiences of victims in restorative justice programs reveal that when the mediator comes across as supportive of the offender, the victim may feel vulnerable, insecure and re-victimized. I will explore the importance of mediators in receiving proper training, and how they can be made aware of the impact their behaviour can have on victims. Finally, I will explore the viability of transitioning/replacing the traditional criminal justice system with a restorative justice framework. Is justice best achieved through punitive measures, or should the law be obligated to focus on community counselling?

Restorative Justice Styles

Community Mediation

The 1970s was a time when many people experienced disenfranchisement with the legal system. Widely viewed as inaccessible due to the jargon-laden discourse and the propensity of legal decisions to be favourable to those with more resources, many scholars and community activists called for a new, more rudimentary form of conflict resolution. One in which communities and local actors were jointly empowered to solve said conflict in their midst, without the excessive adversarialness of the courtroom, in which all parties were quantified as either only winners or losers. This led to the development of community justice centres, as well as other locally-based health and safety initiatives. The former proved to be the most relevant in the rise of restorative justice, in which mediators volunteered to facilitate the resolution of neighbourhood-based disputes. Such mediators were expected to use their status to help persuade disputants to resolve their differences, all while not seeking to gain any personal advantages.

The San Francisco Community Boards (SFCB) is one of the premier examples of community justice. Their aim is to help build and repair community relations and harmony by addressing conflicts before they escalate, reduce fear of crime in the community and provide individuals with conflict resolution skills which they can apply in their daily lives moving forwards. During meetings, disputants present their conflict to members of a volunteer-based panel whose role is to facilitate a solution agreeable to both sides. The volunteers themselves are selected based on a unique criteria. Members ideally share characteristics with the disputants; presumably these shared characteristics allow the participants to better identity with and feel understood by the panel. An additional benefit to this has been the perception of shared equality amongst all participants in the process – the disputants therefore are able to trust their own authority within the mediation process rather than look towards the mediators for decisive interventions.

At its advent, community justice boards such as the SFCB were looked on as a viable way in which justice could be deinstitutionalized so as to be able to include everyone. However, this method soon came under criticism, most notably for seemingly upholding the very rigid and adversarial system it sought to de-professionalize. Rather than people being controlled through inflexible, systemized terms in the formal legal sphere, mediation achieved the same purpose, albeit through gentler means. Community volunteers and social workers took the place of state actors in making sure conflict did not become socially disruptive, extending and entrenching state power even further. Community justice boards were also seen as providing the formal justice system a means to preserve its legitimacy by allowing it to overcome the many crises it faced, such as case overload and broader alienation faced by individuals from the system. Other critics targeted capitalist interest in maintaining community mediation, as it resolved conflicts that would invariably threaten means of production. For example, property/marital disputes invariably effect an individual’s productivity at work. Therefore, the capitalist system benefited from upholding the gentler means of social control community mediation provided, as it often settled grievances faster and did not drain court resources.

Victim Offender Reconciliation and Victim Offender Mediation Programs

While community mediation gradually settled on dealing solely with civil matters, the ideal itself did eventually find expression in the criminal justice field. VOR/VOM are interchangeable terms for programs which have voluntary offenders offer reconciliation to their victim(s). Strict guidelines surrounding meetings and outcomes ensure that the parties are able to come to a mutual understanding of the event and plan for its aftermath together. The core elements of VOR and VOM are: establishing a safe environment, preparation, voluntary participation, a face-to-face encounter and follow-up.

In 1974, the framework for an early VOR program was developed by Mark Yantzi in the small town of Elmira, Ontario. Yantzi was a probation officer tasked with working with two teenagers who had gone on a vandalism spree across the town. Due to the nature of the crimes and individuals involved, Yantzi felt it would be appropriate if the effort was made to reconcile the offenders with their community members. Thus, he proposed to the judge that part of their sentence include meeting with the victims, so that the teenagers could make offers of restitution. The judge agreed and Yantzi, along with David Worth (a prison support worker), accompanied the teenagers as they went around town visiting the homes of their victims, agreeing to make reparations with each for damages caused. Additionally, they gained a better sense of the harm caused. The success of the Elmira case led the two men to develop Canada’s first post-sentencing reconciliation program.

Today, the process has been better established and streamlined. Preparation is a crucial aspect of the program’s success. To begin, the mediator must ensure that all participants feel safe, and be ensured that they will not experience any further harm through the process. Strict guidelines on how meetings occur are intended to maintain trust and make sure everyone is there voluntarily. If parties feel coerced into participation, there is a possibility they may become re-victimized and resentful, which would results in a communication breakdown.

The practice is however not without its critics, especially in its dealings with youth crime. The majority of VOR/VOM programs take place with juveniles and as such, there is the concern that this form of restorative justice will lead to the phenomenon of “net-widening”. Diversion programs such as this which seek to remove individuals from the formal system have instead been accused of extending the reach of the state by processing harms which might otherwise not have been dealt with criminally. Such diversion may in fact result in a ramping up of a criminal justice response in response to petty crimes that were once otherwise just dealt by strict warnings and parents themselves. Thus, it is important to question whether the degree of harm caused by crimes such as petty shoplifting, graffiti scribblers etc is enough to warrant a state sanctioned response, despite the obvious harm caused. There is a worry that mobilizing such responses may in fact end up stigmatizing youth by meting out excessive punishment to minor forms of acting out, which many age out of anyway as they mature. In programs such as the VOR/VOM, strict rules of follow-up may increase the risk of youth becoming criminalized as they increase the likelihood of violating the terms of their sentence and getting caught again due to increased surveillance.

Circles

Circles are a form of traditional indigenous practice. Essentially, it is a multi-step process in which all members of the community where the crime occurred assemble to talk over possible resolutions and reparations. All members present are allowed a chance to speak and lay out their positions and/or grievances. It is imperative that the offender themselves feel completely safe and be accepting of both the process by which the circle operates and the outcome he/she will receive. Like VOR/VOM, there are formal stages to circles: suitability, preparation, a full circle gathering and follow-up.

Suitability speaks to the circumstances of the parties involved. Factors that must be considered include whether the offender has taken responsibility for their actions, whether the community is in a position to provide both the victim and offender the appropriate support, whether the circle itself provides a danger to the community in any way etc. Preparation encompasses many of the same traits as the VOR/VOM programs – the facilitator lays down the ground rules and guidelines of a respectful circle, as well as ensuring that all parties are sufficiently ready to undertake the task. It is important that a full circle be present at all sessions and it is important the mediator not rush or falsely expedite the process in any way. Circles are often time-consuming but it is important they run their course. Finally, follow-up in again an integral part of circles, whereby mediators ensure that whatever agreements were reached are lived up to. This may involve a community feast or other ceremonial activity to signify the offender’s re-integration into the community.

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The broader goals of circles include: promoting healing for all affected parties; providing an opportunity for the offender to make amends; empowering victims, community members, families, and offenders by giving them a voice and a shared responsibility in finding constructive resolutions; addressing the underlying causes of criminal behavior, building a sense of community and its capacity for resolving conflict; and promoting shared community values.

Circles can also take on a more formal form. Sentencing circles for example follow many of the aforementioned principles, the key difference being the presence of state actors such as the judge, defense and Crown attorneys and probation/sentencing officers in addition to elders and the community. Their presence does not tilt the ceremony in favour of retribution – they are merely there to ensure that the sanction received through the circle’s deliberation meets the standards of Canadian law.

Circles, and sentencing circles especially, are often controversial due to their nature and the broader public perception surrounding them. A prominent example is that of R. v. Pauchey (2009), in which Christopher Pauchey, an Aboriginal man from the Yellow Quill Reserve in Saskatchewan left his two daughters out in -30°C weather while drunk. He was charged with criminal negligence causing death for which he pled guilty. Pauchey asked for a sentencing circle to determine his sentence, a request which would stir the debate about the indigenous practice throughout Canada. The National Post referred to sentencing circles as a “charitable approach” which bore “an uncomfortable similarity to a group hug for both victims and off enders.” Another report for the same publication proclaimed that “healing the guilty party is not supposed to be the primary purpose of a criminal sentencing anyway. There’s a reason we still call it ‘criminal justice.’”

Ultimately the judge granted Pauchey’s request for a sentencing circle, allowing his community’s elders to provide preliminary recommendations on his sentencing. It is interesting to note that in this particular case, the judge did not side with the circle’s recommendation to allow Pauchey to serve a conditional sentence in his community – rather, he gave him a 3 year prison sentence. Irregardless, the willingness to use the circle as a means of justice may be looked at the general public as circumventing the rule of law, a fundamental principle of justice. Additionally, it raises some basic philosophical questions about the primary objectives of sentencing itself that are hard to answer.

The Many Faces of Facilitators

In more traditional practices of restorative justice, the facilitator is often a role taken up by a community notable – someone with enough moral authority who the group feel comfortable in guiding their decision-making. For example, in many aboriginal communities, this role is entrusted to the elder(s). However, modernization to the process as well as the increased complexity of both the law and legal actors involved has meant that facilitators are now the product of official processes and qualifications. Rather than assuming any noteworthy community member is capable of facilitating negotiations, modern mediation requires specific education to deal with the many challenges they might face. For example, an untrained facilitator mediating a conflict between partners where family violence is a factor may not be able to pick up the intricacies of an abuser/abused dynamic and thus may not be able to do enough to advocate for the wronged party in the process. Additionally, untrained facilitators may not be fully aware of the programs and services available in the community that may help their clients, thus rendering this recommendations inadequate.

A significant portion of the trust placed in a facilitator also comes from their perceived contractual guarantee that they will facilitate the conflict in a fair and neutral manner. This is directly due to the increased professionalization of the field, as increased time and energy is spent building and developing codes of ethics that provide a set of behavioural expectations for facilitators to abide by. However, it can be argued that there are several possible issues with the increased professionalization of mediation. Traditionally, the idea of true community facilitators meant that the person mediating the conflict was someone who was reasonably, and sometimes even intimately, familiar with you and your family. While this dynamic is still present in aboriginal circles, the change of this “informal” facilitator into an individual well-versed in the art of conflict resolution has meant that conflict itself now appears more closely related to formal law, the very field it sought to differentiate itself from. Mediators then come to be perceived as a potential competitor to lawyers and judges, who had previously held monopoly over the field of law.

Thus, there is the concern that the increased willingness of construing facilitators as “professional” may cause restorative justice to lose the essence of what made it a desirable alternate solution to formal legal law. The fear that it will lose its local and informal roots and merely become an arm of the criminal justice system. By virtue of the state endorsing mediation as a legitimate form of conflict resolution, it caused the practice to become more profitable. Thus a market for mediation emerged where there was none before. Mediation quickly became a much-desired skill set for judges, lawyers and other legal actors. The field of mediation thus became saturated with professional actors charging high prices for their services, which effectively sidelined both the original community based mediation and the informal actors involved in it.

There is also the risk that overly formalizing the training received by mediators may reduce their ability to contextualize group conflicts with deeper social and historical connection. For example, while professional mediators may employ a variety of pragmatic tools and paradigms as taught through their professional training, they may not be adequately prepared to deal with conflicts involving Aboriginal offenders. The fact that an Aboriginal offender involved in substance abuse involves understanding and contextualizing forces of colonialism, legacies of family separation and residential schooling, their difficulty transitioning from reserve life to city life and every day experiences of racism goes far beyond any education a professional school can provide. Mediators must therefore be diligent in recognizing their own deficiencies and possible ineffectiveness when it comes to certain issues, as well as be willing to actively learn new conflict resolution strategies and adapt old ones.

As is evident, all forms of restorative justice operate with a focus on the collective. Forging relationships and feelings of peace are considered of the utmost importance, both in peacefully reaching a conflict resolution as well as in measuring the success of said conflict resolutions. Mediators must be adequately trained in order to be successful in helping offenders restructure and reform their existing mental paradigms, which helps them learn how to communicate and resolve conflicts effectively. Through techniques of discipline, facilitators work to produce “normality” by creating “normal” individuals whose behaviour is controlled, rather than coerced, through multiple social techniques (following social norms and rules such as traffic signals or waiting patiently in line). Techniques of self are used well, which rely on the individuals own self-regulation as they work to internalize societal controls and start to play an active role in monitoring their own behaviour. This method of requiring the offender to first recognize and then actively work towards normalizing his behaviours through his own volition forms the basis of restorative justice.

Transitioning from a Retributivist System to a Restorative One?

In order for restorative justice to be recognized as a viable avenue of conflict resolution in its own right, it must break free of considerable socio-political considerations that are currently holding it back. Restorative justice is situated in a context in which political actors, as well as structural forces, either enable or obstruct its practice. Restorative justice agencies are reliant on government resources and so may be forced to put aside their more idealistic aspects for language that appeals to those in power. This includes the problem of restorative programs being forced to promote “accountability” as a sales-pitch in order to function in their communities. Accountability involves having agencies including an evaluative component in their program, by which it can quantifiably measure whether it has reached its intended goals. These goals are unfortunately often not free from political considerations. Actual restorative justice principles may be sidelined in favour of measuring statistics on recidivism, program costs, victim satisfaction and more. Much of what restorative justice aims to achieve is simply impossible to present numerically. For example, how do we measure “healing”? While facilitators may deal with core issues that lead to some modicum of immediate healing, it in itself is often an imperfect process. An individual may have “good days” or “bad days” even months after dealing with their trauma through professional mediation. Developing quantitative frameworks to gauge the effect of qualitative restorative justice goals is arguably an exercise in futility.

The increased professionalization and politicization of restorative justice has meant that its potential to mitigate the worst excesses of punitive punishments has been severely diminished. In fact, restorative justice as it is currently practiced, completely fails to establish itself as a separate system of conflict resolution and a viable avenue through which to achieve a measurable modicum of justice. As it stands, areas of laws where restorative justice practices are most relevant, such as those relating to youth, also makes room for punitive responses to violent and repeat young offenders which just confuses the process even further. Essentially, what is required is a broad communal shift in attitudes towards restorative justice. However, this is easier said than done, due to aforementioned difficulty in truly quantifying the success of restorative justice programs.

Consequently, restorative justice, which seeks to present itself at the same level of effectiveness as that of retributive justice, gets delegated to dealing with what are perceived as smaller, less serious crimes, often by first time offenders. By being content to play only a marginal role in the legal state, it serves the dual purpose of supporting the criminal justice system, as well as failing to reach its full potential by truly challenging its practices and theories in serious, real world scenarios. From this marginal position, restorative justice thus has little power to call into question the gendered, class-based or racialized dimensions of the criminal justice system. True “justice” can only be achieved when systems of power employ sentencing and reparative techniques through the aforementioned lenses.

Conclusion

Our reactions to conflict are often dependent on the type of conflict socializations ingrained in us through our upbringing. An individual who grew up experiencing violence will cognize and react much differently to difficulties than someone who grew up in a relatively stable environment. Adversarial law has been an entrenched part of our culture, so much so that we automatically think of conflict in legal terms. Restorative justice faces an uphill battle in challenging and disrupting this paradigm. As such, currently, restorative justice programs cannot replace the traditional criminal justice system, partly due its current inadequacies and partly because it requires a large cultural shift to do so. There will always be victims and offenders who choose to have their cases remain in the traditional criminal justice system. While the criminal justice system should offer victims many of the services that are offered in restorative justice programs, it is often only within the context of restorative justice programs that these services are provided.

Ideally, restorative justice should be a separate and proactive system, running parallel to the formal adversarial system, by which eligible offenders are able to rehabilitate. There are of course many issues with this course of thought, including the undermining of the traditional system, the question of true legitimacy and calling into question the true definition of justice. The issue arises of whether is justice something that is best achieved through punitive programs or through community counselling. Keeping in mind that restorative programs often fall prey to the political agenda of neo-liberal policies, is it still the most viable avenue through which to achieve true harm reduction between offenders and victims. Restorative justice, whether practiced alone or diluted as an agent of the formal system, has the potential to be a significant and pragmatic means of lowering the rate of recidivism and bringing about a more humane and equitable form of justice.

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The Forms Of Mediation In Canada. (2021, September 29). Edubirdie. Retrieved May 27, 2022, from https://edubirdie.com/examples/the-forms-of-mediation-in-canada/
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