Home About Us Reports Final Report 2003 - Transforming Relationships Through Participatory Justice Chapter 6 Designing and Evaluating Models of Participatory Justice

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Transforming Relationships Through Participatory Justice

Chapter 6 Designing and Evaluating Models of Participatory Justice

One of the objectives of this report is to identify best practices in conflict resolution across Canada. Chapter 6 offers some principles for the design of participatory processes, drawing on the most promising outcomes seen in current restorative justice and consensus-based justice initiatives.

6.1 THE HALLMARKS OF BEST PRACTICE IN PARTICIPATORY PROCESS DESIGN

To achieve the goals of a participatory process, design principles for participatory justice processes must be faithful to both core values and practical constraints. [1] Good practice now includes careful design planning, both at a general level (for example, determining the type of interaction that might occur between parties to a conflict, and whether the outcome is final or can be re-opened in another process) and at an individual level (for example, determining who should participate and what role they should be prepared to play, and the rules or understandings on confidentiality, future admissibility, and the publication of outcomes). Publication of outcomes is especially important in relation to evaluation and monitoring, but it also raises fundamental questions regarding the public scrutiny of informal processes such as mediation, circles and group conferencing.

The process design principles proposed below are responsive to the three ways in which participatory processes are clearly distinguishable from conventional dispute-processing strategies: a conceptualized notion of harm; a concept of justice as equal well-being, in full recognition of existing systemic inequities; and a focus on the relationship dimensions of conflict. First, it is instructive to take brief note of some of the major themes that have emerged in scholarly and practical work, now commonly known as dispute systems design (DSD), not least because these themes underpin our thinking in this area.

6.1.1 Building in disputant choice

Choice is a design principle that has emerged as key in the last decade of experimentation. Proponents argue that providing choices empowers the participants. Providing choices allows people to decide which process can respond better to their needs. Choice has implications for the principle of voluntariness that will be reviewed later.

6.1.2 Community ownership

The development of conflict resolution processes should include consultation and participation of the client groups that will be affected. The involvement of those directly affected in the design and implementation of these new dispute resolution processes is increasingly regarded as essential, enhancing both the credibility and the longevity of such initiatives. Participation may take place at the planning stage, at the implementation stage (for example, during the training of mediators), and at the evaluation stage (for example, through focus groups, surveys and other data collection techniques). Client-centred design allows designers and policymakers to avoid cultural assumptions in developing community-based programs— instead, the design of the program can reflect the cultural demography of the community—and encourages a sense of ownership for the initiative among community members. [2] At a minimum, community participation should include an offer of training to community members on the principles of participatory processes that will form the cornerstones of the new program. [3] As the process design takes shape and a program emerges, community members may choose to play key roles, such as volunteering as community mediators, participating in circles, or sitting as a member of community panels.

6.2 TWELVE GUIDING PRINCIPLES FOR THE DESIGN OF PARTICIPATORY PROCESSES

There is some tension between setting out even general principles for process design and meeting the needs of those who participate in participatory processes. Justice is above all a highly subjective experience. [4] Can the principles of restorative and consensus-based justice be used to generate applicable recommendations for the design of overall systems that support consensus-building and healing? The most important principle for participatory processes may be that any process or system should be sufficiently flexible to take account of individual needs and goals. What works for one dispute will not necessarily work for another, however superficially similar they might appear. Individual expectations, motivations and values—and how the parties have constructed their “reality” of the conflict—are different in every dispute.

Nonetheless, some general principles do emerge and should guide the design of future participatory processes. Each of the 12 design principles that follow reflects the earlier discussion of the core objectives and process values of restorative and consensus-based justice initiatives in Chapters 2 and 3, as well as the fundamental characteristics of participatory processes (a conceptualized understanding of harm, justice as social well-being, a focus on relationships and relationship restoration). The 12 design principles are:

• Early intervention

• Accessibility

• Voluntariness

• Careful preparation

• Opportunities for face-to-face dialogue

• Advocacy and support

• Confidentiality

• Fairness

• Relevant and realistic outcomes

• Flexibility and responsiveness

• Efficiency

• Systemic Impact

6.2.1 Early intervention

A first guiding principle is an emphasis on early intervention and pre-charge or pre-litigation options for non-criminal matters. It seems clear that the earlier that non-threatening, constructive, participatory interventions can be made, the more likely that a conflict may quickly de-escalate. This principle is exemplified in restorative justice processes that operate as a caution for young people who otherwise could be at risk for future criminal behaviour. It is also exemplified in school-based programs that encourage good conflict resolution skills and practices among schoolchildren. In civil matters, early intervention would enable landlords and tenants to seek early mediation assistance when problems arise and their relationship begins to deteriorate, and it would not be delayed until the landlord obtained an order for eviction. [5]

It is interesting to speculate on how this public and political culture might change if people could expect assistance with conflict resolution before a formal criminal charge is laid or a litigation has commenced. [6] There are obvious benefits both for individual disputants themselves and for the community at large. Participatory processes should be designed with an awareness of the benefits of early intervention. Participatory processes should consciously aspire to the creation of a culture in which early problem diagnosis and proactive intervention are widely accepted, in much the same way as the medical community uses early identification and diagnosis of health problems.

The principle of early diagnosis and intervention wherever possible should not discourage the important development of post-adjudication processes—for example, post-incarceration Victim– Offender Mediation or the use of talking circles in a workplace after the adjudication of a grievance. Such processes serve many helpful functions for the participants and contribute to the resolution of long enduring conflicts and the reduction of the costs of those conflicts for our society.

6.2.2 Accessibility

If participatory processes are to be utilized by community members and justice system officials, it is critical to design them to be easily accessible, user-friendly and not overly bureaucratic. A number of factors appear to be significant in designing programs to maximize accessibility and participation. The first is that the program must be located in a place that is considered unthreatening and welcoming to potential users. For this reason, some programs (especially restorative justice initiatives working with offenders and victims) take place outside a courthouse or formal justice venue. A second consideration is that potential users should be able to access information about the service with assurances of complete confidentiality. [7]

Where the consent of a justice system official—for example, a Crown prosecutor, or a judge—is needed before a participatory process can be utilized by the parties, it is important that decision-making is timely and transparent. [8]

6.2.3 Voluntariness

The fears expressed that some members of marginalized and disempowered groups will be coerced to participate in informal dispute resolution processes and perhaps agree to unfair outcomes must be taken very seriously. Genuine voluntariness seems to be more than a desirable principle in the design of participatory processes; indeed, it is fundamental. To ensure that parties to a dispute genuinely volunteer to participate in a program, they must be provided with full information about the process and its alternatives and all the assistance necessary to make an informed choice. [9] This does not mean that each person who chooses a participatory process over a more traditional rights-based approach will do so with no concerns or fears, but that they should do so with authentic voluntariness, having appraised it as a good option for the resolution of the conflict at issue.

Choice must be respected. Participatory processes assume that individual parties are best suited to determine whether a consensual approach is suitable for the resolution of their conflict, whether this lies in the criminal domain or in the civil domain. At the same time, however, the mediator must exercise judgment when considering whether to proceed with a mediation, particularly when issues of fear and violence are present. [10]

Introducing mandatory mediation programs in the civil courts has been criticized on the grounds that requiring the parties to mediate corrupts the concept of voluntary bargaining. Others argue that this is the only way to ensure that clients, rather than their legal representatives, decide whether mediation is appropriate and to enable their legal representatives to experience a process that is otherwise unfamiliar and perhaps counterintuitive to legal training. What emerges from these debates is the need to design programs in such a way that they ensure that disputants themselves actively decide whether to use a participatory process to address a conflict. Attention must also be directed at removing the disincentives to using participatory processes that currently exist in our system of justice, for example, the absence of full legal aid coverage.

Is there a case for requiring some form of participation in consensus-building processes, as, for example, in mandatory court-connected mediation programs? Mandatory requirements vary widely. Some jurisdictions require that the parties and their counsel simply meet to negotiate the most appropriate process (mandatory consideration rules). [11] An argument can be made that mandatory mediation is sometimes appropriate to expose both disputants and their legal representatives to a process that they would otherwise likely decline. [12] Moreover, research now shows a correlation between actual experiences of mediation and positive attitudes toward the usefulness of the process. [13] Research also shows no significant differences in satisfaction between participants in voluntary processes and those in mandatory processes. [14]

Can the same arguments be applied to participatory processes in the criminal context? The debate over voluntariness in restorative justice processes appears to be centred on ensuring exit routes for those who feel coerced into participating (for example, for the victims experiencing pressure from their communities to participate), rather than on any suggestion that either victim or offender should be compelled to attend a circle or community panel instead of a traditional trial process. Nonetheless, an equally strong case can be made from both civil and criminal matters requiring that legal counsel—and perhaps their clients—attend an orientation or information session describing the alternative process and its possible value.

Any suggestion of compulsion or coercion to participate in a mediation, circle or similar process clearly contradicts the principle of voluntariness, which appears intrinsic to participatory processes. It is the view of the Commission that such mandatory programs are to be reserved for non-criminal conflicts, for a time-limited period, alongside accessible training and information opportunities for participants, and with the possibility to refuse to participate for reasons of fear of intimidation or coercion.

It is proposed, therefore, that mandatory participation programs be considered only under the following conditions:

1. Where a requirement of mandatory participation is introduced for a time-limited period, in order to expose the local lawyers and their clients to dispute resolution services and to educate them about the potential alternatives to a traditional justice model.

2. Where a requirement of mandatory participation is introduced alongside accessible training and information opportunities for lawyers and their clients.

3. Where easily accessible exit routes can be provided for those identifying themselves as vulnerable to intimidation or coercion.

The debate over mandatory mediation ought not to detract from the very real issue of the existing disincentives to using participatory processes. Within both the criminal and non-criminal justice systems, many rules, practices and customs make it more difficult or costly for parties who might consider participatory processes. Throughout its consultations, the Commission had heard from many professionals and non-professionals who describe how the rules on costs or on access to legal aid, for example, prevented a serious exploration of participatory alternatives. Many invisible barriers to developing and recognizing alternatives to the traditional adversarial system continue to exist. The Commission hopes that this report and the continued work of the many institutions involved in the justice system will serve to uncover and remove current impediments to wider recourse to participatory processes.

6.2.4 Careful preparation

Another design principle that must coexist, however uneasily, alongside voluntariness in participatory processes is particular attention to disputant relationships that suggest fear or intimidation. An example of a set of minimal standards for screening is provided by the Ontario Ministry of the Attorney General policy for funded mediation services at the Family Court.

Note, however, that point five assumes that when the intake worker believes that mediation is inappropriate, mediation should be refused, even if the party wishes to proceed. This seems incompatible with the emphasis on self-determination in processes and suggests a focus on protecting the intervener, rather than on achieving the best interests of the client. This principle does, however, recognize that it is not always appropriate for parties to meet, even when they want to. Throughout its consultations, the Commission heard that mediators ought to be in a position to evaluate particular cases to determine whether a meeting would be constructive or destructive. The Commission suggests that in cases in which fear and a history of violence are present, but the client wishes to pursue consensual dispute resolution, there should be joint decision-making between the disputant and the mediator. In addition, best practice in design might assign an external mentor to review such a case as it proceeds through the chosen process to ensure that there is no actual or perceived intimidation.

Intake processes should also build in adequate preparation time. A critical part of preparation is considering what documentation and other material needs to be made available to all participants before a meeting. Leaving this to the initiative and discretion of individual participants is sometimes inefficient, especially when counsel are constrained by conventional approaches to information exchange.

Instead, programs should ensure that an early substantive discussion takes place, if necessary facilitated by a program staff person, regarding the exchange of relevant information before a circle, mediation, panel hearing or other process.

Many informal dispute resolution processes move slowly. For example, it may take a great deal of preparatory work to ready participants for a circle; parties, for a face-to-face mediation; or

Ontario Ministry of the Attorney General Policy for Government-funded Mediation Services at the Family Court

Mediation services are required to commit to the following goals:

1. the identification of violence in the family/abuse;

2. the safety of victims of violence in the family/abuse;

3. ensuring that mediation is offered only when it is truly voluntary;

4. to give clients who have been disempowered by violence in the family/abuse the support and safety they need to refuse to mediate;

5. to suggest cases which are not suitable for mediation and to refuse mediation in these cases [and to suggest alternate courses of action];

6. to encourage assertiveness of victims of violence in the family/abuse; and

7. to provide clients with information about community resources which can be of assistance to them and their children.

Ontario Ministry of the Attorney General, "Policy for Government-Funded Mediation Services at the Family Court," online: http://www.attorneygeneral.jus.gov.on.ca:80/english/family/policies.asp.

spouses, for the first substantive four-way negotiation in collaborative law. It is important to invest the time and resources required to adequately prepare disputants for a process. Experience suggests that if this preparatory work is done, these processes appear to proceed much more successfully and quickly toward an acceptable conclusion.

6.2.5 Opportunities for face-to-face dialogue

This report has already dealt with the importance of face-to-face dialogue for both restorative justice and consensus-based justice processes. A key design principle for participatory processes must be the creation of opportunities for face-to-face dialogue in which personal experiences of justice can be created. During its consultations, the Commission heard from many people who are actively involved in restorative and consensus-based justice initiatives. Practitioners told the Commission that there will be occasions when face-to-face dialogue may be inappropriate or ill-advised: it may be rejected by one or more of the parties to the conflict or it may simply not be feasible because of time and distance constraints. Under these circumstances there must be sufficient flexibility to enable a dialogue to take place—through shuttle diplomacy, conference call, video­conferencing or other means—if the parties firmly believe this to be constructive.

While face-to-face dialogue has the potential to offer the greatest impact on victims and offenders, research indicates that even when victims and offenders do not meet, levels of satisfaction, particularly with the process, remain high. [15]

6.2.6 Advocacy and support

The Commission’s consultations with practitioners underlined the need for advocacy and support. The experience of these practitioners suggests that program design should ensure a clear place and functional role for supporters. “Supporters” can be lawyers, family members, friends or others who might provide advice and offer emotional support throughout the conflict resolution process. It is important that the role of the supporter be clarified in advance and that participatory processes remain within the ultimate control of the disputants.

Many individuals whom the Commission consulted suggested that the presence of lawyers undermines the participatory nature of the process, as they bring with them their adversarial culture, particularly in criminal cases. The history of mandatory mediation in civil cases reveals that this fear of lawyers undermining a participatory process may be overstated. There is some evidence that when lawyers attend mandatory civil mediation with their clients, the discussions are dominated by counsel who sometimes instruct their clients to leave the talking to them. [16] On the other hand, research conducted for the Commission by Julie Macfarlane showed that many lawyers involved in mandatory mediation come to realize the value of the process. These “true believers” embrace the principles of participatory justice and are open to allowing their clients to assume a leading role in the conflict resolution process.

To ensure that participatory processes retain a focus on the disputants themselves, rather than on their agents, advocates should be briefed on the need for their clients to speak for themselves wherever possible, to participate actively, and with full advice from counsel, to reach their final decisions independent of outside parties who might seek to influence them. As the Commission recommends in Chapter 8, the principles of participatory justice ought to be taught in universities and, in particular, in law schools and reaffirmed by law societies so that lawyers come to understand the value of these processes and the types of skills the processes require so that their potential is fully realized.

There has been a lot of discussion over whether disputants need legal advice in order to reach fully informed decisions in consensual processes. When legal rights and obligations are negotiated, it is good practice to ensure that the parties have access to independent legal advice. [17] At present, not all participatory processes qualify for paid legal representation under provincial legal aid schemes. This is particularly the case in the criminal justice system. Because many legal aid plans do not apply to restorative justice processes means, there is a disincentive for lawyers to recommend these processes to their clients. This is an

"True Believers" in Mandatory Mediation

"The True Believer has made a strong personal commitment to the usefulness of the mediation process which goes further than simply reorienting their practice strategies to new client expectations and requirements. The True Believer speaks about mediation in terms that suggest that it has had a significant impact on his attitudes towards practice, clients and conflict. He may even use quasi-religious metaphors like 'converted' or 'transformed' ('I got religion;' 'I think you'll find that I'm a person who has now converted and I admit to being a believer in mediation') to describe this process of personal and professional change. He sees mediation as having a transformative effect on relationships, outcomes and on the role of the advocacy itself which goes beyond an instrumental use of the process. One True Believer described 'a completely different form of adversary process.' Another in comparing mediation to traditional settlement negotiations asserted, '...[M]y role has significantly changed. All of those things are done quite differently at the mediation.'

The True Believer identifies what he thinks are signs of systemic change in the litigation environment and is perhaps more conscious or preoccupied with these than any of the other attitude types. The True Believer even sometimes takes on the role of proselytizer; for example, 'I've got into the practice of taking on the education of the lawyers on the other side with respect to mandatory mediation.' Because of his changed perspectives on conflict resolution and the role of counsel, the True Believer sometimes experiences a strong feeling of tension between his adversarial role and his settlement role."

J. Macfarlane, "Culture Change? Commercial Litigators and the Ontario Mandatory Mediation Program," report prepared for the Law Commission of Canada, 2001.

important dimension of legitimating participatory processes and ensuring that those who choose this approach to dispute resolution are not disadvantaged compared with those who choose to remain within a conventional adjudicative process.

6.2.7 Confidentiality

The assurance of confidentiality, which is usually provided for processes working toward agreed outcomes, seems critical to their efficacy. Guaranteeing the confidentiality of information disclosed, explanations given and, perhaps, acknowledgments made during mediation, circles or group conferences enable participants to be open and at the same time protects this openness. Disclosures made in the course of participatory processes are generally understood to be inadmissible in future legal proceedings. During the course of the Commission’s consultations, some people suggested that from time to time Crown counsels have used information disclosed during the course of a restorative justice process to prosecute the offender in court. These types of abuses of confidentiality ought to be carefully examined. Confidentiality is one of the core elements of participatory processes and ought to be guarded carefully.

Good practice suggests that participants read and sign a written statement before they begin a process. Ideally, confidentiality is discussed during the intake and preparatory stages. Intake procedures should explain both the legal status of disclosures and the importance

Standard Confidentiality Agreement

The parties acknowledge and agree that mediation is a confidential settlement process intended to explore possible compromises or accommodations and alternative solutions or designs to resolve the dispute, and they are participating in the process with the understanding that anything discussed in the mediation process cannot be used in any court or any other proceeding. [18]

of treating disclosures as confidential among participants. In consensus-based justice processes, the former is usually taken care of by standard clauses in mediation agreements.

There is sometimes confusion over the practical import of confidentiality clauses. Clauses such as the above are designed to exclude the repetition of anything said by another party under the cone of confidentiality. They do not restrict in any way a party from repeating a statement she or he has made in mediation or during a circle or conferencing process, nor do they restrict the same party from bringing forward the same information (including documents) again.

It is also important to anticipate certain limitations on confidentiality, both among the parties and on the part of any other participant. These include any disclosure that suggests a threat or danger to life and the ill-treatment or abuse of children. While the Canadian courts have generally been respectful of the confidential nature of conflict resolution discussions, it is also practical to recognize that a judicial order could in theory compel disclosures. [19]

A more difficult question is how to design processes that ensure that the second component of confidentiality—treating what is said as confidential among the participants—is taken seriously and observed honourably. Clearly, members of a circle or parties to a mediation are likely to discuss what was said with others outside the group, for example, with family and friends. This can sometimes lead to problems within small, close-knit communities. It is suggested that program designers and third parties stress the need to ensure that the private discussions that take place within these processes do not spread throughout the wider community, bringing embarrassment and possibly mistrust into the process and undermining the continuation of such processes.

Finally, it is important to distinguish confidentiality within the process from the confidentiality of outcomes, which raises different issues. These are discussed below.

6.2.8 Fairness

While outcomes should be “what matters” to the individual participant, [20] a balance needs to be struck between community autonomy, personal self-determination and the regulatory role of the state. For the design of participatory processes, this raises questions of external scrutiny, review and appeals.

The decision to voluntarily engage in a participatory process should include a commitment to accepting an agreed outcome as a final resolution of the dispute. Whereas allegations of coercion in reaching an agreed outcome must be taken very seriously, it is appropriate to ask participants to agree at the outset that any outcome to which they consent shall be final and without recourse to an appeal body. The essence of a participatory process is that the parties have considered all the circumstances and have agreed to a particular outcome—a very different commitment than submitting to the imposed judgment of a third party. For this reason, Canadian courts have been unwilling to re-open mediated agreements on the civil side or to substitute their judgment for the apparent voluntary consensus of the parties, unless there is evidence of coercion or oppression in reaching that conclusion. [21]

This does not, however, remove the need to monitor the quality of the outcomes of participatory processes. Where there are clear legal standards (for example, child support guidelines in the case of family disputes), there is additional pressure to ensure that these standards are followed and that parties are not agreeing to less than their entitlement. While it is important to satisfy critics that agreed outcomes do not undermine legal principles or diminish the rights of a particular group—for example, single mothers with custody of their children—the principles of participatory processes require that the parties themselves ultimately make the decisions regarding what they can accept as “fair.”

If the outcomes of a program are monitored to check for settlement patterns that suggest unfairness, an additional practical problem for designers and evaluators of consensus-based justice programs in civil situations is that outcomes are often regarded as confidential. This problem is removed in criminal diversion cases, for which outcomes must be reported to the court. In many other processes, including family mediation, human rights mediation and some pre-charging processes, there is sometimes a requirement to report outcomes, as these are not generally regarded as private by the parties.

Whether and how outcomes might be made public in processes that are otherwise private is an important design consideration for participatory processes. In some conflicts the accessibility to and publication of the outcome are critical to achieving systemic long-term change (for example, in some human rights and discrimination cases). At the same time, for some parties the opportunity to fashion a private solution to a problem may be an important motivation for them to agree to a participatory approach. These needs and interests must be balanced, but there are clearly instances in which the public interest requires that outcomes should be public, even if anonymity is preserved and some details are omitted. [22] At a minimum, public reporting of the outcome and the form of such reporting should be discussed and possibly negotiated during the process so that participants know in advance what to expect.

6.2.9 Relevant and realistic outcomes

While participatory processes leave the solution to the problem in the hands of the participants, it is important that outcomes be relevant and realistic and, if possible, durable. This is important for the credibility and long-term viability of participatory processes. In criminal matters, this means ensuring that resources are available in the system to provide for community services, probation, drug rehabilitation, anger management education, and so on. When an agreement calls for the payment of monies, program staff should have the resources to follow up to ensure that payments have been made. Some programs may choose to work closely with the civil courts, for example, asking a small claims court judge to rubber-stamp an agreement and thereby give the agreement the force of a court order. If a program prefers that compliance measures be informal only, this should be made clear to all participants at the outset, as well as the steps that the program will take as follow-up. [23]

Compliance is an important indicator of the effectiveness of participatory processes. It is important that program designers anticipate some means of monitoring the durability of outcomes. This may mean that a sample of cases is followed up three (or six) months after agreement, in order to generate compliance data. If problems with compliance and durability become evident, the program should review the types of options that are commonly considered by participants to ensure that these are realistic and appropriate.

More important, failure to comply with agreements that are reached may reflect a failure on the part of some of the participants to take the processes and their outcomes seriously. In this case, program staff should consider renewing efforts to undertake sufficient preparatory work with the parties, to ensure that future outcomes are regarded as serious commitments.

6.2.10 Efficiency

Attempts to measure the cost of court processing time for civil and criminal disputes are unsatisfactory because of the difficulty associated with measuring variables, such as whether a matter returns to court, the economic costs incurred when an individual is placed on probation or incarcerated, or the social costs incurred when a landlord evicts a tenant who is then forced to find new housing. Moreover, it is difficult to quantify the economic benefits that accrue from even one successful victim–offender or landlord–tenant mediation. Advocates of participatory processes argue that the worth of these processes is not directly translatable into any reduction in processing costs but must be seen in long-term benefits to the community. Clearly, it is important that costs not be measured solely in monetary terms, since conflicts have many other costs. Nonetheless, processes that place increased long-term costs on either disputants or the state are unlikely to be acceptable. Efforts must, therefore, be made to use the meeting time efficiently and allow parties to know in advance what is expected of them.

A Cost-Benefit Analysis of the Hollow Water Community Holistic Circle Healing Process

The Native Counselling Services of Alberta conducted a cost-benefit analysis of the Hollow Water Community Holistic Circle Healing (CHCH). Over the course of ten years, CHCH received about $3 million in funding from the federal and Manitoba governments. This money was used for victim and offender services. The Native Counselling Services estimated that if the program did not exist, the cost to the federal and provincial government of providing services would be considerably higher.

CHCH $3,000,000

Provincial costs $3,751,414

Federal costs $2,461,318–$12,150,471

Total costs to governments $6,212,732–$15,901,885

According to the Native Counselling Services report, the benefit of the CHCH program is significant. The CHCH cost $3 million over ten years. If the program did not exist, it is estimated that the cost to government for providing the services to the victims and the offenders would be between $6.2 million and $15.9 million. At a minimum, the CHCH saved government $3,212,732 over the past ten years.

As the Native Counselling Services report says, "for each dollar Manitoba spends on CHCH, it would otherwise have to spend approximately $3.00 for policing, court, institutional, probation and victims' services. For each dollar the federal government spends on CHCH, it would otherwise have to spend a minimum of $2.00 for institutional and parole services."

Native Counselling Services of Alberta, A Cost-Benefit Analysis of Hollow Water's Community Holistic Circle Healing Process (Ottawa: Ministry of the Solicitor General; Aboriginal Healing Foundation, Ottawa, 2001).

6.2.11 Systemic impact

Participatory processes move decision-making into the hands of individual disputants and their communities. The potential for developing what is sometimes described as “social capital” is obvious. The development and implementation of participatory projects build the community’s capacity to deal with problems collectively and consensually. This capacity-building can be further enhanced by incorporating training for volunteers into program design, equipping these individuals with conflict resolution skills they can use in the future in their workplaces and communities. Offenders and victims who have participated in participatory processes may be encouraged to return as volunteers in the program. Programs initiated to respond to particular needs and problems within the community—for example, a widespread drug culture or high rates of breaking and entering—might develop related social action projects to tackle the causes of these problems. Education programs—such as anger management programs—can be developed to create systemic impact from the work undertaken in conflict resolution.

In the design of participatory processes, this means ensuring that participants clearly understand what is expected of them in advance

"Every time citizens participate in community-based processes like circles, neighborhood panels or family group conferencing, they communicate their expectations, their standards for behavior. Each incident involves only a small portion of the community in the discussion, but the cumulative effect of using these processes on a regular basis is widespread citizen involvement in decisions which require thinking about values and standards. These processes require citizens to struggle with the questions: How should we treat one another? How should we work through conflict?"

K. Pranis, "Engaging the Community in Restorative Justice," (Balanced and Restorative Justice Project, June 1998) at 16.

and that meeting time is used effectively as discussed above; providing easy access to renewed negotiation processes at any future point in litigation or trial proceedings; and providing appropriate follow up to ensure that matters discussed and resolved are implemented.

6.2.12 Flexibility and responsiveness

The principles described here are suggested as the hallmarks of good practice in the design of participatory processes, on the basis of Canadian experience to date. However, the essence of participatory processes is to provide personal experiences of conflict resolution—in the form of both process and outcome—that are meaningful to the individuals involved. This requires constant flexibility and responsiveness to the particular needs of each unique conflict. This means that programs should foster a spirit of responsiveness and respect for the unique circumstances of each conflict that passes through the process. Rigid structures and rules that unnecessarily reduce participant choices should be avoided if at all possible. The assumption of self-determination that lies at the heart of participatory processes for individuals and communities alike means that affected persons can and must be trusted to make appropriate decisions over the design details of their own processes—such as who should be present, how long the meeting should last, what will be discussed, and what types of solution or outcomes should be considered. [24]

6.3 ANTICIPATING PROGRAM EVALUATION

The evaluation of conflict resolution processes is a developing area for social science research. There is increasing interest in developing best practice approaches to program evaluation to ensure integrity in results and relevant information for policymakers and community members. [25]

Efficient design includes planning for evaluation; deciding whether it will be formal or relatively informal and anecdotal. The core objectives and values of a process are important resources for evaluators, as they offer direction on the problems the new process aims to address and its internal benchmarks for successful change. In this way, the guiding principles for program design outlined above provide a basis for program evaluation. There are three key considerations with respect to evaluation.

6.3.1 Implementation evaluation

An evaluation of implementation assesses how far the program under examination meets the threshold standards of these guiding principles by reviewing program documentation, such as staff manuals and information provided to users, and by surveying or interviewing a sample of program users and staff. Satisfaction surveys are often used in this context. It is important to consider that initial satisfaction with a process may not prevail over time. Some evaluations may provide a better assessment by using longer term analysis and data collection.

6.3.2 Identification and measurement of evaluation priorities

The second task of the evaluator is to work with program staff to identify the program’s priority goals. For example, a program may wish to concentrate on increasing case referrals, in which case the priority goal will be enhanced accessibility by strengthening referral links, public education and outreach. There may have been complaints about parties being pressured to participate without being properly informed about their choices at the outset or without being empowered to withdraw, in which case the focus for an evaluation may be intake practices. Experience with low compliance may lead a program to prioritize durable outcomes, so the program’s “success” at this time is framed to some extent in terms of outcome compliance. Alternatively, a program may have reached a stage of development at which its priority becomes systemic change, measured by the long-term impact of the program on the wider community.

In each case, the evaluator must identify tangible and credible outcome measures that permit an assessment of this priority. For example, in the case of accessibility, the number of case referrals that continue through the conflict resolution may be important indicators. Similarly, focusing on compliance will probably require collecting follow-up data on cases that have reached agreement over the evaluation period. In contrast, appraising intake and screening practices may require qualitative research, including interviews with parties reporting pressure. Finally, assessing the systemic impact of a program on a community probably involves both quantitative data (for example, local crime rates and recidivism rates from this program) and qualitative data (for example, interviews with community leaders and law enforcement agents about trends and changes they have observed).

6.3.3 Selection of an appropriate evaluation methodology

The third task of the evaluator is to assist in selecting an appropriate evaluation methodology that will provide useful data for the program users, the program staff and the policymakers. The evaluation of dispute resolution systems and processes presents many methodological challenges, both conceptual and practical. For example, it is difficult to develop an objective definition of “satisfaction” (often an important criterion in program evaluation). The extent to which parties feel “satisfied” with dispute resolution processes is usually a reflection of their past experiences and their expectations for this particular process—all entirely subjective. To properly take account of the personal nature of experiences of satisfaction, evaluators should gather information by using open-ended questions from a range of sources and not depend solely on structured surveys with preset answer categories.

Another challenge for evaluation methodologies is the volume of variables present in the implementation of any given process designed to expedite settlement. Comparisons between processes that are informally regulated and those controlled by a mediator or facilitator whose particular role and style will be critical to the outcome are especially problematic. Similarly, within any classification of case type, there are inevitably many variables—for example, how much money is at stake, whether disputants are acting in person or in a corporate capacity, what the quality of legal representation is—that may critically affect settlement outcomes. An external classification of dispute type also overlooks the fact that the disputants themselves may “redefine” the issues if they choose to settle the conflict consensually. [26]

In light of these significant methodological challenges, the evaluator should determine, along with program staff and users:

• What type of data can be collected.

• What data would provide the most useful information for the priority evaluation questions.

• What forms of data would be most authentic.

• What types of data would be most credible to program staff, users, community members and funders.

1. See, for example, B. Pearce and S. Littlejohn, Moral Conflict: When Social Worlds Collide (Newbury Park: Sage, 1997); G.W. Cormick, N. Dale, P. Emond, S.G. Sigurdson and B.D. Stuart, Building Consensus for a Sustainable Future (Ottawa: National Round Table on the Environment and the Economy, 1996); C. Costantino and C. Merchant, Designing Conflict Management Systems (San Francisco: Jossey-Bass, 1996); J. Macfarlane, ed., Dispute Resolution: Readings and Case Studies, 2nd ed. (Toronto: Emond Montgomery, 2003) at chapter 6; W. Ury, J. Brett and S. Goldberg, Getting Disputes Resolved (Boston: Program on Negotiation, Harvard University, 1993); M. Rowe, “The Post-Tailhook Navy Designs an Integrated Dispute Resolution System” (1993) 9:3 Negotiation Journal 203; J.P. Conbere, “Theory Building for Conflict Management System Design” (2001) 19:2 Conflict Resolution Quarterly 215; and C. Bendersky, “Culture: The Missing Link in Systems Design” (1998) 14:4 Negotiation Journal 307.

2. C. Constantino, “Using Interests-based Techniques to Design Conflict Management Systems” (1996) Negotiation Journal 207.

3. In the same way as the RCMP has made training in facilitating community forums and conferences widely available to its officers. See Restorative Justice: A Fresh Approach, online: http://www.rcmp-grc.gc.ca/ccaps/restjust_e.htm (date accessed: 17 September 2003).

4. For a compelling account of justice through the eyes of a series of individual subjects, see S. Silbey and P. Ewick, The Common Place of the Law: Stories from Everyday Life (Chicago: University of Chicago Press, 1998).

5. For example, legal clinics consistently report that a high percentage of the tenant clients they see seek assistance only after an order has been made to evict them.

6. Susan Silbey and Susan Merry suggest that at an early stage of conflict many people are embarrassed to find themselves in a dispute and prefer to ignore or hide this from others. See S. Merry and S. Silbey, “What do Plaintiffs Want? Re-examining the Concept of Dispute” (1984) 9:2 The Justice System Journal 151.

7. This may also affect the physical location of the program. Workplace programs that identify a particular individual as the first step in a conflict resolution process have often experienced resistance among employees who are reluctant to attend in full view of colleagues.

8. Constantino and Merchant warn against the over-bureaucratization of a decision to access ADR services and argue for the principle of subsidiarity. C. Costantino and C. Merchant, Designing Conflict Management Systems (San Francisco: Jossey-Bass, 1996) 130.

9. For a discussion of the ethics of informed choice, see J. Macfarlane, “Mediating Ethically: the Limits of Codes of Conduct and the Potential of a Reflective Practice Model” (2002) 39:4 Osgoode Hall Law Journal 78.

10. See, for example, the discussion in E. Kruk, “Power Imbalance and Spouse Abuse in Divorce Disputes: Deconstructing Mediation Practice via the ‘Simulated Client’ Technique” (1998) 12:1 International Journal of Law, Policy and Family 1.

11. For example, Minnesota General Rules of Practice for the District Courts, Rule 114. See further discussion in Chapter 8.

12. C. Hart and J. Macfarlane, “Court-annexed Mediation: Rights Instincts, Wrong Priorities?” Law Times, April 28-May 4, 1997 at 5.

13. See, for example, J. Lande, “Getting the Faith: Why Business Lawyers and Executives Believe in Mediation” (2000) 5 Harvard Negotiation Law Review 137 at 171–176; and M. Medley and J. Schellenberg, “Attitudes of Attorneys Towards Mediation” (1994) 12 Mediation Quarterly 185.

14. R.L. Wissler, “The Effects of Mandatory Mediation: Empirical Research on the Experience of Small Claims and Common Pleas Courts” (1997) 33 Willamette Law Review 565. See also the discussion about the ambiguous concept of party “satisfaction,” in dispute resolution program evaluation.

15. T.A. Rugge and R. Cormier, Department of the Solicitor General of Canada, Restorative Justice in Cases of Serious Crimes: An Evaluation (prepared for delivery at the 6th International Conference on Restorative Justice, Simon Fraser University, Vancouver, B.C., June 2003).

16. See N. Welsh, “The Thinning Vision of Self-Determination in Court-Connected Mediation: The Inevitable Price of Institutionalization?” (2001) 6 Harvard Negotiation Law Review 1.

17. There may be other important factors besides legal advice in parties choosing a particular outcome, including concern about a future relationship, a desire for a timely outcome, and the need for closure.

18. There is continuing debate over whether it is feasible to exclude information from future discoveries. The Ottawa mandatory mediation program suggests the following clause: “Mediation is a confidential, off-the-record process. The objective of confidentiality is to protect an environment in which frank and open discussion can take place without the fear of future prejudice. This means that while not restricting any party’s right to pursue alternative remedies if mediation fails to produce a settlement, all statements made in mediation, documents (or copies thereof) produced in mediation, notes taken and any other communication during the mediation cannot be relied upon in evidence by the other party in any judicial, arbitral or tribunal proceedings, current or future, unless such information is otherwise discoverable without reliance on any confidential statement, material or communication made during mediation.”

19. The following is an example of a clause from a mediation agreement, setting out standard exemptions for the purposes of confidentiality: The mediator shall not disclose to anyone who is not a party to the mediation anything said or any materials submitted to her, except:

i. to any person designated or retained by any party;

ii. where ordered to do so by a judicial authority or where required to do so by law;

iii. where the information suggests an actual or potential threat to human life or safety.

20. J. Braithwaite, “Restorative Justice: Assessing Optimistic and Pessimistic Accounts” (1999) 25 Crime and Justice 1 at 6.

21. Except in cases where there has been clear pressure on one or more parties or some other type of mediator misconduct. See J.L. Schulz, “Mediator Liability in Canada: An Examination of Emerging American and Canadian Jurisprudence”, 32 Ottawa Law Review (2001) 269.

22. See the discussion and recommendations in J. Macfarlane and E. Zweibel, Systemic Change and Private Closure in Human Rights Mediation: An Evaluation of the Mediation Program at the Canadian Human Rights Tribunal (Ottawa: Canadian Human Rights Tribunal, 2001).

23. Failure to comply with voluntarily assumed obligations is a frequent criticism by clients of mediation processes, and it impacts negatively on program credibility. See J. Macfarlane, Building on “What Works”: An Evaluation of the Saskatchewan Queen’s Bench Mediation Program (Regina: Saskatchewan Justice, 2003).

24. For a practical example of the potential of informal processes to respond to context and be modified accordingly, see H. Ganlin, “Mediating Sexual Harassment” in B. Sandler and R. Shoop, eds., Sexual Harassment on Campus (Toronto: Simon and Schuster, 1997) at 191.

25. Two excellent resources relating to program evaluation are C. Morris, “Conflict Resolution and Peacebuilding: A Selected Bibliography,” online: (date accessed: 17 September 2003); and C. Church and J. Shouldice, The Evaluation of Conflict Resolution Interventions: Framing the State of Play (Ulster: International Conflict Research, 2002); and C. Church and J. Shouldice, The Evaluation of Conflict Resolution Interventions, Part II: Emerging Practice and Theory (Ulster: International Conflict Research, 2003).

26. For a discussion of some further methodological challenges in measuring the success of dispute resolution programs, see, for example, R.A. Bush, “Defining Quality in Dispute Resolution: Taxonomies and Anti-taxonomies of Quality Arguments” (1989) 66 University of Denver Law Review 381; and M. Galanter and M. Cahill, “Most Cases Settle” (1993-94) 46 Stanford Law Review 1339.