of Aotearoa New Zealand
All that I can hope to
make you understand
is only events: not
what has happened.
‘And people to whom
has ever happened
Cannot understand the
unimportance of events.’
TS Eliot The Family Reunion
This quotation is taken from one of TS Eliot’s plays where a family group gets together to try and sort out their past difficulties. One of the characters is so frustrated by the way the conversations proceed, that he blurts out the above lines. I understand this to mean the difference between what is on the surface and obvious, as against the less obvious things that take place in any interaction between people: the emotional fall-out, the vast gulfs in perception, the challenge of remembering things differently, the challenge to find the words to express what has so far been inexpressible. According to Wikipedia, the play charts the journey of the main character ‘from guilt to redemption’ even if there is some debate about how well the play achieves this.
So, what has this quotation from a play now 100 years old, got to do with Restorative Justice conferences? Believe it or not, there are some similarities: each genre has a script, even if the RJ one is not written down. The characters in each genre are all brought together through relationship – one of kinship, and (in the particular incident I wish to describe) one of accident. In each case the relationship is problematic, and has to be sorted out. Although the processes for ‘sorting things out’ vary quite a lot in a play from an RJ conference they do both have a ‘process.’ One utilizes exits and entrances, speech and action, and the actors deliver lines that are carefully crafted by the playwright. In the other, the lines are ad libbed and are shaped by the ongoing dialectical nature of the encounter, each speech shaping its reply. Both genres however may set up dramatic tension, even if one is by design, and the other by the interplay of unrehearsed utterances. Where that ‘dramatic tension’ is mutually resolved one has a satisfactory play and a satisfactory RJ conference. By happy coincidence Eliot’s play and my conference arrive at similar redemptive endings even if their paths to that point are divergent.
The significance however of this comparison between a 100 year old play and a very recent twenty first century RJ conference is that the question tormenting the play’s main character (‘But how can I explain’?) is exactly the same question we need to ask about the process of any RJ conference – what is it that is going on in this conference that creates a redemptive ending?
The motivation for this essay was facilitating a conference where the parties had been involved in a road accident. I shall describe the conference as ‘an event’, that is, something that did happen (people meeting and talking together for a brief period of time) something with a beginning, a middle and an end. Yet the conference was more than just the words spoken; ‘something happened’ that was more than just the words spoken. What was that ‘something’ that ‘happened?’ One answer might be that ‘a resolution’ was what happened. It seems however, that every answer merely implies another question: ‘How did the meeting arrive at that resolution (and not some other one)?’ What follows is an attempt to answer that question, firstly by detailing ‘the events’, and then by running our ‘night- vision binoculars’ over the script so that we might begin to see those things which were not immediately visible, the ‘things that happened’, in Eliot’s cryptic phrase. I shall subject the conference to some degree of verbal analysis in an attempt to explain what is distinctive about the RJ process – how does it actually ‘work?’ I do so in the earnest hope that my readers are luckier than Eliot’s protagonist who felt that his hearers would ‘understand less after [he] had explained it.’
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In this recent case, a colleague and I were faced with an RJ conference that arose out of a car crash. Setting up the conference had two significant logistical problems, one of geography and one of language. The victim and the offender lived in different cities some hundreds of kilometers apart. Neither party was able to travel to the other city, yet each was keen to take part in an RJ conference. So it would have to be done through skype, and each party agreed to this. (The victim lived in our city.) The second problem was that the offending driver spoke no English, although her partner did. (They had come to live in NZ more than ten years earlier.) Opening telephone conversations were, perforce, with him and it was subsequently agreed by all that he could act as interpreter.
The date for the conference was set for a week or so after both pre-conferences. In those intervening days, the victim (male, mid-forties) was approached by his friends and relatives who understood his situation from their own unique perspectives. They poured scorn on the written explanation for the crash (‘I sneezed’) and urged him to go for the maximum amount of monetary compensation. They were further concerned that the male partner of the offender might distort or fudge what was said in some way to the disadvantage of their friend the victim. So he rang me and asked for an independent translator. After some discussion, I acceded to this request despite my initial reluctance.
At the RJ conference there were the official translator, two facilitators and the victim at our end, and the offender and her partner at the other end. The technical problem we faced at our end was that the laptop only had a 25cm screen, and the victim and the translator filled it by themselves. The victim had not opted for a support person and so I sat beside him, just out of the screen coverage. My colleague chose to sit a little way away although he twice moved behind the seated group to whisper a suggestion to me about how we might proceed at that point.
When it was clear that everybody was ready, I asked the translator to request the offending driver to say whatever she wanted to say about the accident. By great good fortune, the (female) translator immediately established an easy rapport with the offender, and she poured out her story, weeping quietly as she did so. She explained that they had tried very hard to contact the victim so that they could try and put things right, but could get no information from either the police or the hospital. Apologizing profusely she said that she had no clear memory of the accident, except that she knew she ‘had been tired and that she had sneezed’ when she took over the wheel on the long drive from their home city. (The accident happened some hundreds of kilometres away from her home.) She asked of the victim that he might find it in his heart to forgive her. A back and forth dialogue ensued with only minor and infrequent interventions from me. These were mostly suggestions to the victim that he should hold up in his storytelling at particular points so that his words could be translated.
The offending party explained their parlous economic circumstances (jobless, surviving with the help of friends and family) but offered the victim $2000 nonetheless by way of compensation. He said that he had estimated his financial losses at $15000 and asked if they could manage that much. (His right leg and foot had been badly mangled, rods and plates had been inserted. It would be several more months before he could walk properly again. He too had been unable to work and it would remain that way for some time yet.)
At that point, the offending driver told her story of the consequences of the crash for her. About 18 weeks pregnant at the time, the air bag and seat belt combined to squeeze her uterus so forcibly that her waters broke. Air- lifted to hospital she and her (uninjured) partner were informed that the child would be born in a couple of days, and that it would not survive. All medical resources were mustered, and with the aid of good fortune, they were able to prolong the pregnancy to 24 weeks. Born severely premature, both mother and baby were kept in hospital for many days. At the time of the conference, they had returned home, but the child had breathing difficulties due to inadequate lung development and also had to be fed from a drip. It required 24-hour care and both of them had ceased work in order to provide the necessary care for the child and to support each other. It could have seemed that they had been plummeted into the valley of the shadow of death and were still struggling to find their way out. In the course of this story unfolding however, the partner explained that at one early stage they had consulted an herbal doctor from their own culture, and his advice had been that as the mother had lost her waters, she ought to drink plentifully, to replace them. ‘So, he said, ‘my partner drank eight litres of water every day for days.’ For some reason, this struck everyone as very funny and there was considerable mutual laughter.
At that point the victim explained that he was concerned for the baby’s welfare. ‘While I do not have children of my own I do have nieces and nephews, so I have some idea of what it is like,’ he said. ‘Would you like to look at our baby?’ asked the child’s father. ‘Most certainly, yes I would,’ replied the victim. So the camera was taken down the corridor and into the child’s bedroom. We all peered into the cot, seeing a tiny baby with a surgical white patch on one cheek. At one moment, the child opened its eyes - ‘Look, look,’ exclaimed the victim, ‘is he smiling?’ ‘Yes’, said the father, ‘he is smiling at you.’
The victim was absolutely overcome at this point and was unable to speak. The rest of the group made small talk for a few moments, and I touched his shoulder, rubbing it gently and saying, ‘It’s ok, take your time.’ Regaining his composure and after some reflection, the victim then said: ‘Look, I have decided that I will not accept your offer of $2000. Instead, I want you to put it towards the welfare of your child. Maybe buy him some clothes or something.’ It was the turn of the offending party to be overcome. The child’s father vigorously wiped his eyes and his face with a large handkerchief, and the mother wept a bit harder than before. I too struggled somewhat to maintain a professional distance, saying into the camera: ‘Maybe we should stop this meeting now. The place will be flooded out.’ There was a trickle of laughter at this, and the meeting recovered some equilibrium and managed to proceed.
The victim’s generosity seemed amazing to the other party and following on from their expressions of surprise and gratitude, they asked him: ‘Would you care to keep in touch with us as time goes by, so that you can see how our baby progresses?’ This offer too, was accepted with alacrity by the victim, and so they exchanged contact details. This seemed like a good point to end the meeting, and after checking that both parties had said all they needed to say, I closed it with a ‘Thank you all, and goodbye.’
Reflection and Analysis:
What was going on in this meeting? The account above details the key points of the discussion ending with a totally harmonious resolution for all concerned. Yet even if we had made an audio recording of the meeting, it would still not answer the question about how the resolution occurred.
Both parties confessed at some point to having approached the meeting with considerable anxiety and nervousness, and it began with the two parties separated by distance, by language, culture, age and by the official labelling of them as ‘offender and victim.’ Quite early on, these significant gaps between the parties manifested an additional element with the discussion about monetary compensation, with a $13000 gap between them. How was it then that each of these significant barriers were resolved? The distance was addressed by skype, the language and culture by a (skilled and empathetic) interpreter, but how to overcome the negative labelling of ‘offender’ and ‘victim?’ (I describe these labels as ‘negative’ because they were opposites and pitted the people against each other. I will elaborate further as this essay proceeds.) The money question also looked intractable, as each side had a thoroughly reasonable case to make. To re-state the question again: how did this meeting arrive at such a fulsome resolution to these divisive issues, with absolute strangers weeping together and agreeing to share their lives in the future?
The only way I can begin to answer this is by reference to some overarching theories, and I will suggest that every RJ conference is run with some unstated (and mostly unperceived) theoretical framework being in play. One exception to this is the group called ‘Project Restore’, which holds the nation-wide contract for RJ in cases of sexual violence. Their job description is quite explicit: to be successful, an applicant must subscribe to ‘a feminist analysis of gendered power.’ (This is an extraordinarily tendentious position to take, but that is the subject for another essay.)
In my experience however, facilitators in criminal case RJ (including domestic violence cases) follow what they have been taught: that RJ conferences must be structured by the facilitators and that it is this structure which makes a satisfactory resolution possible. The thinking is that meetings proceed in stages and facilitators must be able to recognize these stages and proceed through them in the prescribed order. This is a statement about how one ought to act, rather than a description of the theoretical basis which would justify that course of action. A rigid process is prescribed without any examination of the world view from which it springs or even any understanding that it does spring from a particular world view, or a particular set of assumptions.
It will be stunningly obvious that the above account of a conference did not follow this rigid format. This does not mean however, that it was ‘unstructured.’ After all, I opened and closed the meeting and gave a few gentle nudges to the victim and the interpreter from time to time. The ‘structure’ of this meeting was to let the parties talk, and to reduce facilitator intervention to the barest minimum possible. We might call it therefore, a minimalist structure, as against a maximalist one.
If there is a theory embedded in the ‘maximalist’ process it is that power resides with the facilitator who must control the whole process from beginning to end. The embedded assumption in this approach is that it will prevent the ‘barnyard scenario’ where everybody just talks as they see fit in some kind of anarchic free for all. Who gets to speak and when, and even (to a large extent) what they may say, is in the hands of the facilitator. For instance, if a speaker is perceived (by the facilitator) ‘to have wandered too far’ from the Summary of Facts, then the facilitator is instructed to ‘draw a boundary’ around the speech by requiring the speaker to return ‘to the subject at hand.’ That is, the subject as defined by the facilitator.
By contrast, the ‘minimalist’ approach which we followed aims to let the parties speak as they see fit, as much and as little as they wish. The job of the facilitator is to ensure that they have had the chance to say everything that is on their mind. This does not preclude a ‘curious question’ from the facilitator(s) from time to time, or a gentle steer in one direction or another. If there are ‘boundaries’, they are self-selected by the speakers themselves. The theory that lies behind this practice is what I shall call ‘the theory of narrative engagement.’ The Latin root ‘narro’ = ‘I tell’ (a story), and the notion of letting a narrative unfold is now well established in the public domain, particularly journalism where it is common to hear a journalist say, ‘The dominant narrative here is….’
In RJ however the concept of ‘narrative’ has a slightly different meaning and it owes something to the Narrative School of Counselling that appeared sometime in the 1990’s. This in turn is connected to larger theoretical constructs about how we know stuff, and how we establish personal identity.
This theoretical notion however, runs smack up against the point that when facilitators run RJ meetings, they do so within the oversight and jurisdiction of the whole criminal legal system which has its own theoretical constructs. This overarching legal system imprints its own definition of identity on the people in front of us: they are no longer wife, sportsperson, teacher, father, pianist, neighbor or any other of the multitude of identities that we assume during the course of one day. Instead, the person is reduced to a simple binary, either a ‘victim’ or an ‘offender.’ As mentioned above, both terms are negative, one implying moral failure and the other a degree of passive helplessness. Neither term implies a state of being to be wished for, yet they are fastened inescapably to each person like toe tags to a cadaver.
Facilitators often struggle with this nomenclature and a useful way out is to adopt Zehr’s terminology of ‘harmer’ and ‘harmed.’ What a difference a word makes! Suddenly the people present are not extensions of the criminal justice system, but people in their own right. As such, they have their own story to tell. And they do. Our job is to let them. The most common opening statement I make to any harmer is to say, ‘Tell us what happened that day,’ and so the ‘harmer’ or ‘harmed’ person would begin on telling their story.
By following this simple strategy, the facilitator is demonstrating their concern for that person, accepting the dignity of their personhood, and responding to them as an equal, regardless of what they have done. The facilitator is implicitly and wordlessly according full worth to the other person by allowing them an unmediated voice. This is therefore, a total contrast to the way that the criminal justice system has defined them. They get to define themselves. The importance of this process of identity marking in laying the groundwork for a successful RJ conference, cannot be overstated.
We may say that RJ is in the criminal justice system, but not of it. It is a crucial distinction because the intended end results are also polar opposites. The official system, having identified the lawbreaker, established guilt, and labelled him/her as an ‘offender’ then seeks to punish that person because that is what one does to offenders. To employ another theoretical mode, we may refer to this as ‘ the discourse of offence and punishment.’ This ‘discourse’ (or set of assumptions about how the world operates) has a whole series of protocols rituals and procedures, is buttressed by time and precedent, and is deeply embedded in the popular psyche. Yet it is hugely ineffective in stopping crime, and frequently alienating to all parties, harmer and harmed alike. RJ on the other hand, aims to heal the psychological harm that has been caused by the ‘crime’ by transgressing the fundamental operating principle of the law – keeping the parties apart. RJ brings the parties together, in both a purely literal sense of being in the same room, and in a spiritual sense, of establishing some common ground and thereby healing the harm, allowing the parties to go in peace. RJ is embedded in a discourse of peace rather than punishment.
Explanations of how the criminalized event took place are often useful to the victim because they answer a number of questions which may have puzzled or angered them. Being able to enter into dialogue with the other party (something expressly forbidden in the Court process) enables all these things to be canvassed so that they melt away into the air. In the case examined above, the victim had come to the meeting with a number of pre-conceptions: that the driver had (allegedly) been witnessed by at least four other motorists of speeding and passing on a blind corner, and that she was therefore a menace to society. He felt entitled to some monetary compensation ($15000.)
When the harming driver began to speak however, and even though we had to wait for her words to be translated, an inevitable and imperceptible process was set in motion. As speaker she positioned her listener(s) in a particular way. This is to invoke the concept of ‘Positioning Theory.’ Not very widely known, this theory can be a very useful heuristic device for understanding verbal interactions. It would not have been conscious to her, or any of the people listening, yet it was fundamental to the eventual outcome. She assumed that they would listen politely, and they did. They accepted the position that she had assumed for them (of respectful listening) by not interrupting and not challenging her story. Without anyone realizing it, the first step had been taken to a satisfactory resolution. Her story came in two parts, the accident itself (about which she could remember very little), and her lengthy account of its consequences for her. This positioned her as also being a ‘victim’ or ‘person who had been harmed.’
There are at least two ways to respond to this: a person inhabiting the discourse of crime and punishment would see her as choosing to tell her story (create her narrative) as a ploy to establish sympathy, a manipulative technique to make people feel sorry for her and thus lessen her punishment. A person inhabiting the discourse of social peace however, would see the way she had framed her story as perfectly natural because road accidents (as a particular form of ‘crime’) can easily have those kind of consequences. It seems accurate to observe that it is the blindness of the law to the human dimensions of crime that is at fault, rather than any deviousness of a harmer seeking to escape retribution.
The guilt, shame, sadness and remorse that the offending driver felt for her victim seemed to include what she felt about herself for putting her unborn child in harm’s way. It was not expressed directly, but lay there in her quiet unremitting tears and was clearly inferred by the harmed man as he listened to the story of how so many people struggled to keep the child alive.
The idea of shame has been elevated into a theoretical explanation for the success of RJ conferences. (Kelly, 2014; Preston, 2015; Braithwaite, 2002) I am not convinced by this theory, and a fuller examination of the issue can be found in my M.Ed. thesis. (Holm, 2014) Certainly her shame was expiated as the meeting progressed, but not because we set out to do that. It happened as an indirect result of the fact that three people listened to her story without judgement. The first sign of the lifting of shame came (I would argue) with the story of the eight litres of water drunk every day and the laughter in unison that it generated. This was the first sign of some common ground being established. Three people divided by language, culture, geography and social status found something that drew them together.
The harmed man was able in turn to state his situation at some length, fully detailing his injuries and their negative effect on his well-being. Again, he was listened to respectfully, accorded the dignity and concern that was thought appropriate. Looking on, it was clear that two people (harmer and harmed) had laid out their vulnerabilities to an accepting audience, and that each had put their prepared positions on compensation into the conversation ( $2000 and $15000).
Responding to what he was hearing, the harmed man mentioned the fact that although he had no children himself, he was still concerned about the welfare of their child. In terms of positioning theory, he was creating the possibility of some kind of response. What he got turned out to be critical in the final resolution for the conference. As if it was some kind of card game, the harming couple took his offer, and raised it: ‘Would you like to see the child?’
No-one could have predicted this turn in the script. A thorough skeptic from the crime and punishment discourse would simply observe that this was a very astute player seizing the main chance to get himself off the hook. Seen more benignly, it was a very human response that intuitively picked up on a man’s otherwise unexpressed loneliness. They offered him a privileged position (viewing the baby) and a powerful acceptance of him into their family. In a stunning reversal of the mandated Court process (to ignore the harmed and punish the harmer) they were addressing one of his basic unmet needs, offering him a chance to move from the lonely tower of his life, and find a kind of healing in the warmth of their togetherness. The harmer healing the harmed. No wonder that he was overcome when the baby smiled at him. There was so much more going on here than just talk.
Then it was his turn to reciprocate, although it took him quite a few moments to be able to find his voice. In effect he said that the child’s needs were so important that they dwarfed his, and so he dedicated himself to assisting the child’s parents continue to care for the child. These people together, were building a relationship of mutual respect, concern and equality, transcending all the potential barriers that could have kept them apart.
It also reveals another critical element of the RJ process, that the healing of one party is dependent on the healing of both parties. We might say that the gift of healing lies within the grasp of each party for the other. Thus the harmed man brought to this meeting a justifiable sense of grievance about the losses he had sustained through no fault of his own, and he wanted considerable financial compensation. He felt he was entitled to it. How could this be transcended? The answer lies in the nature of the RJ encounter whereby everybody is treated with equal concern, dignity and respect. People speak for themselves and surprisingly often they find common ground. The people who have done the harm are not pressured into lying or distorting or minimizing their actions, because there is no punishment to be avoided. Finding it unnecessary to defend themselves because they are not under attack, they are able to reveal their vulnerabilities, and the other side can respond to those vulnerabilities, establishing a sense of common humanity.
Thus in this case, the victim was surprised to find his own unmet (and most likely unacknowledged) needs addressed by total strangers. They heard his expression of loneliness and responded to it. The RJ process allows human beings to talk openly to each other. It might be said that they switched discourses from the binary of harmer and harmed, to what we might call a discourse based on recognizing basic human needs for inclusion and acceptance. A humane discourse rather than one based in legal definitions of crime and punishment.
In return when the harmed man accepted their invitation to look at the baby, he was implicitly suggesting that he accepted their story as genuine. Then when he withdrew his claim for monetary compensation, I will suggest, he was placing higher value on their experience and needs than on his own. He validated their suffering and expunged their guilt in one fell swoop. Although clearly unconscious of the full ramifications of what he was doing and saying, (he only knew that it felt overwhelmingly right and good), he was exercising the power of the victim or harmed person, to heal the other. In saying ‘I forgive you,’ he was putting them in the position of receiver of a gift, the gift of understanding that they had meant no personal harm to him and were genuinely distressed at the injuries and pain he had suffered. In return, the gift they offered him far transcended any kind of monetary compensation, they offered him the gift of participation in their life as a family, enveloping him in their warmth and affection. We may call this the discourse of healing.
What may we all learn from this case? That the RJ process can transcend barriers of language and culture, and, just as powerfully, it can transcend the negativity of distance. To my great surprise, RJ through skype proved to be just as effective as any meeting of persons round a table. Indeed, one might argue, by being able to include a fourth member of the group, one who made not a single sound, slept most of the time, and whose only action was to smile briefly, the technology actually precipitated an outcome that could not have happened in a face to face meeting of adults on ‘neutral’ territory.
I have attempted to explain how this resolution was achieved by reference to a theoretical model of story-telling and identity formation and that the critical factor was the willingness of the facilitators to allow the participants to create a relationship where each party was treated with equal dignity, concern and respect. (Llewellyn, 2012)
This theoretical model for understanding the invisible mechanisms that were in play during the conference goes as follows: that people have a story or narrative to tell, that they frame this story (unconsciously) as part of a way of understanding the world (speaking from ‘discourse’ or ‘a discursive position’), that this enables them to define themselves, to establish their identity as they wish to be perceived. This identity can only be established in relationship and it has to be a particular kind of relationship, the kind so beautifully described by Jennifer Llewellyn.
Braithwaite, J. (2002) Restorative justice and responsive regulation. New York: Oxford University Press.
Holm, R. (2014) Unpublished M.Ed. thesis Constructing a successful Restorative Justice Conference: A Tentative Analysis. Waikato University, Hamilton, NZ.
Kelly, Jnr. Vernon C. (2014) Caring, Restorative Practice and the Biology of Emotion in Kelly, Jnr. Vernon, C. & Thorsborne, Margaret The Psychology of Emotion in Restorative Practice. Jessica Kingsley Publishers, London and Philadelphia. (chapt. 1. pp.26-53)
Llewellyn, J.J. (2012) Restorative Justice: Thinking relationally about justice. In Downie, J. $ Llewellyn, J.J. (Eds.) Being relational reflections on relational theory and health law. (chap. 4 pp 89-108). Vancouver: UBC press
Preston, P (2015) Restorative Practices, Affect Script Psychology and the Social and Emotional Aspects of Learning in Gavrielides, (Ed.) (2014) The Psychology of Restorative Justice. Ashgate: UK (chapt. 4 pp.65-83)