by Karen Mak
Introduction
Alternative Dispute Resolution (ADR) is commonly used in civil justice. It comprises a range of processes other than judicial determination, including mediation, conciliation, and arbitration, where an independent, third person helps parties resolve disputes.[1] In the criminal justice context, restorative justice – a concept closely associated with ADR – seeks to provide solutions to crime beyond the traditional disciplinary model. It focuses on promoting reconciliation, repairing harm, and restoring relationships while holding criminal offenders accountable for their actions.
The aims of restorative justice are achieved by the use of restorative practices and programs that enable the offender, victim, and other stakeholders to actively take part in the process, offering an alternative to a primarily punitive approach and bring about mutually satisfactory outcomes for all parties affected by the criminal conduct. [2] Participants come together on a voluntary basis with the help of a convenor or facilitator for safe and structured conversations about the offence and develop solutions to repair harm and restore relationships. [3]
ADR has become an increasingly important part of the criminal justice system, forming the basis for restorative justice and provides models of practice that help address some criminal matters in a more collaborative and constructive way. In this article, we aim to understand the role of ADR in the criminal justice context, especially its effectiveness and limitations in facilitating restorative justice and the use of ADR in New South Wales.
Why use Restorative Justice in the Criminal Justice System?
Restorative justice, much like ADR, offers an alternative way to handle criminal cases. Restorative justice helps offenders to acknowledge the harm done and reintegrate them into the community. However, it also seeks to be more inclusive of victims, who are often excluded from the traditional criminal justice system, or they play a passive role, and this greater inclusion increases their satisfaction with procedural justice.[4]
Victims often report very high levels of satisfaction with restorative justice interventions as they are empowered and their needs are met. Under the victim-centric approach, victims are treated with respect and fairness. Victims have their voices heard in a safe space and hear directly from the offenders to receive an apology and recognition of their accountability.[5] Although restorative justice inventions might not be suitable for all victims, the majority of those who participate find positive outcomes in the process and would recommend restorative interventions to others.[6]
On the other hand, in relation to offenders, there have been mixed opinions on the effectiveness of restorative justice programs on the reoffending rates. Some studies have found that restorative programs are more successful in reducing reoffending than punitive sentencing.[7] Offenders on restorative programs are protected from the shaming and marginalisation that is associated with the traditional criminal system and are thus better able to restore self-esteem and reintegrate into their communities.[8] Other reports state restorative programs are not necessarily more effective in reducing reoffending.[9] However, offenders are generally satisfied with their restorative justice program and find the process fair.[10] Restorative processes are also found to have higher rates of compliance than court orders, since a majority of offenders are satisfied with the outcome.[11]
Moreover, evidence suggests that restorative justice is more cost-effective in the juvenile justice domain with the average cost of a youth justice conference about 18% less than the average cost of a Children’s Court matter.[12] This cost-effectiveness is significant to overall fiscal savings, including a reduced demand by victims on healthcare and welfare services, as victims are better supported through the restorative process.[13]
Despite the advantages, restorative justice may not be suitable in all criminal cases, including a gross power imbalance among participants or concerns for a victim’s safety or traumatic impact.[14]
Ultimately, the effectiveness and meaningfulness of restorative justice interventions are highly dependent on the victims’ and offenders’ willingness to engage in the process. Commentators also argue that a lack of universally agreed-upon standards of restorative justice practice results in the participants’ experience being inconsistent and dependant on the relative expertise of facilitators that may result in unfairness or even harm to participants.[15]
Restorative Justice Practices in NSW
New South Wales has three main restorative justice practice areas; victim-offender conferencing, youth justice conferences and circle sentencing. Suitable cases are diverted from court to a restorative program, or a court can refer a case to a restorative process for sentencing support if certain requirements are satisfied.[16]
Victim-Offender Conferencing
Victim-Offender Conferencing is managed by facilitators from the Restorative Justice Unit of Corrective Services NSW. It is a scheme that targets adult offenders, their victims, and their support person, and provides tailored restorative justice services such as face-to-face meetings and an Apology Letter Bank for letter exchange.[17] The restorative services take place only after sentencing and all legal matters have been resolved, if the offender takes responsibility for the offence and both victim and offender volunteer to participate.[18] In the process, the facilitator will help participants prepare and communicate safely; for the offender to acknowledge the wrong they have done and the victim to receive the apology.[19]
Youth Justice Conferences
Youth Justice Conferences are designed specifically to help child offenders accept responsibility for their behaviour and enhance the rights of victims in the juvenile justice process.[20] The conference is facilitated by a convenor who is in charge of preparing and conducting the conference to help participants reach agreement on an outcome plan for the child offender to repair the harm caused, while taking into account their age, level of development, needs and other relevant considerations.[21] The child offender is required to complete the outcome plan once approved by the Court.[22]
Circle Sentencing
Circle sentencing is only available for Aboriginal offenders who appear in specific NSW Local Courts as an alternative sentencing option.[23] It aims to reduce barriers between Aboriginal communities and the court, and allow Aboriginal communities to be involved in the process to provide more culturally appropriate sentencing options for Aboriginal offenders.[24]
The circle is presided over by a Magistrate who ensures fairness of the proceedings, all participants are given a chance to contribute and the law is applied correctly.[25] During the circle, the defendant, the victim (not necessarily), Aboriginal elders, legal representatives, the prosecutor and the project officer will discuss an appropriate treatment or rehabilitation plan and recommend a sentence with which the offender must comply.[26]
Conclusion
Restorative justice and ADR are closely intertwined in offering a range of alternative measures to redirect matters from traditional court proceedings to an environment that encourages collaborative and meaningful discussions among participants to develop a mutually agreed outcome.
While restorative justice interventions are not appropriate for all criminal matters, they can be effective in reducing reoffending rates and providing a satisfactory experience in the justice system for both victims and offenders. With the support of more dedicated resources there is an opportunity for restorative justice to be more accessible in criminal cases for the benefit of all stakeholders of crime.
The NSW experience highlights the crucial role facilitators and convenors play in restorative interventions. The quality of their facilitation has a significant impact on the operation of restorative justice and there is an ongoing need for these facilitators to receive ongoing professional development training to deepen their skills in effective restorative justice practices and deliver consistently satisfactory outcomes for all participants.
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[1] ‘What is Alternative Dispute Resolution’, NSW Communities and Justice (Web Page, 8 May 2023) <https://courts.nsw.gov.au/alternative-dispute-resolution/what-is-alternative-dispute-resolution.html#:~:text=What%20is%20ADR%3F,Judge%20or%20Magistrate%20in%20court.>.
[2] Melissa Lewis and Les McCrimmon, ‘The Role of ADR Process in the Criminal Justice System: A view from Australia’ (Conference Paper, ALRAESA Conference, 4-8 September 2005).
[3] Jacqueline Joudo Larsen, Restorative Justice in the Australian Criminal Justice System (AIC Reports Research and Public Policy Series, No 127, 2014).
[4] Tinneke Van Camp and Jo-Anne Wemmers, ‘Victim Satisfaction with Restorative Justice: More than simply procedural justice’ (2013) 19(2) International Review of Victimology 117.
[5] Ibid; Australian National University and the Australian Institute of Criminology, Australian Capital Territory Restorative Justice Evaluation: An observational outcome evaluation (Report, July 2018).
[6] Ibid.
[7] Lawrence W Sherman and Heather Strang, ‘Restorative Justice as Evidence-Based Sentencing’ in Joan Petersilia and Kevin R Reitz (eds), The Oxford Handbook of Sentencing and Corrections (2012) 215; Jeff Latimer, Craig Dowden and Danielle Muise, ‘The Effectiveness of Restorative Justice Practices: A meta-analysis’ (2005) 85(2) The Prison Journal 127.
[8] Lewis and McCrimmon (n 2) 10.
[9] Larsen (n 3); Don Weatherburn, ‘A Review of Restorative Justice Responses to Offending’ (2013) Evidence Base 1.
[10] Larsen (n 3); ANU and AIC (n 5).
[11] Ibid.
[12] Andrew Webber, Youth Justice Conferencing versus the Children’s Court: A comparison of cost effectiveness (Crime and Justice Bulletin No 164, 2012).
[13] ‘How cost effective is restorative justice?’, United Nations Office on Drugs and Crime (Web Page, April 2019) <https://www.unodc.org/e4j/en/crime-prevention-criminal-justice/module-8/key-issues/3–how-cost-effective-is-restorative-justice.html>.
[14] ‘Overview of restorative justice processes’, United Nations Office on Drugs and Crime (Web Page, April 2019) <https://www.unodc.org/e4j/zh/crime-prevention-criminal-justice/module-8/key-issues/2–overview-of-restorative-justice-processes.html>.
[15] Alana Marie Abramson and Melissa Leanne Roberts, ‘Benefits & Critiques of Restorative Justice’ in Shereen Hassan, Dan Lett and Leah Ballantyne (eds) Introduction to Criminology (Kwantlen Polytechnic University, 2023) 17.8.
[16] ‘Restorative Justice’, Australian Association for Restorative Justice (Web Page) <https://www.aarj.org.au/restorative-justice/>.
[17] ‘Victim Offender Conferencing’, Corrective Services NSW (Information leaflet, June 2023) <https://correctiveservices.dcj.nsw.gov.au/support/restorative-justice.html>.
[18] Ibid.
[19] Ibid.
[20] Young Offenders Act 1997 (NSW) s 34.
[21] Ibid ss 34, 45, 48.
[22] Ibid ss 54, 56.
[23] Criminal Procedure Regulation 2017 (NSW) pt 7 div 1.
[24] Ibid s 39.
[25] Ivan Potas, Jane Smart, Georgia Brignell, Brendan Thomas and Rowena Lawrie, ‘Circle Sentencing in New South Wales: A review and evaluation’ (Research, Judicial Commission of New South Wales and Aboriginal Justice Advisory Council, 2003).
[26] Criminal Procedure Regulation (n 23) ss 41, 43.