Home About Us Reports Final Report 2003 - Transforming Relationships Through Participatory Justice Chapter 7 Balancing the Role of Government and Community Autonomy

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Transforming Relationships Through Participatory Justice

Chapter 7 Balancing the Role of Government and Community Autonomy

Chapter 7 explores the changes necessary to make participatory justice processes part of the mainstream of conflict resolution practice in Canada without losing their creative elements. The opening section of this chapter reviews some examples of best practice in a range of areas, including criminal, civil, administrative, family and extralegal conflicts. It is presented as a way of building on the current Canadian experience of participatory processes. The chapter then considers the role of governments in relation to community-based justice initiatives. Community participation is key to participatory justice initiatives and many proponents regard government as undermining their work. At the same time, as long as the traditional justice system operates as the hub of dispute processing, community justice initiatives must develop structural relationships with the criminal, administrative and civil justice systems.

7.1 BUILDING ON CURRENT PARTICIPATORY JUSTICE PROCESSES

The application of participatory models to many areas of disputing has demonstrable benefits for individuals and their communities. Canadian experience with consensus-building processes—in both civil and criminal matters and in both court-connected and community settings—suggests many positive outcomes from these initiatives. The following is a review of some of the processes that exist in Canada. Many others also prosper. The following list gives an indication of the breath of current Canadian participatory initiatives:

• Civil mediation programs in Saskatchewan, [1] Ontario [2] and British Columbia [3] have resulted in high levels of user satisfaction. In Ontario, a 1995 study found that 89.5 percent of clients surveyed described themselves as either “somewhat” or “very” positive about the mediation process, following their experience of mandatory court-connected mediation, with fully 95 percent stating that they would use mediation again in the event of a conflict. Notably, these high figures include clients whose cases did not settle at mediation. Ongoing evaluation of the Saskatchewan Queen’s Bench Mediation Program indicates widespread acceptance, among lawyers and both institutional and individual litigants, of early mediation as an appropriate response to conflict. [4]

• Civil mediation programs have demonstrated significant savings of cost and time to individual litigants. A 2001 evaluation of the Ontario program found that 80 percent of lawyers estimated major cost savings to their clients as a result of mediation. [5] Cost savings for the system presumably flow from earlier case disposition.

• Where the option of mediation has been introduced into proceedings before administrative tribunals—such as the Canadian Human Rights Tribunal, the Canadian Human Rights Commission, the Ontario Human Rights Commission, the Ontario Residential Tenancies Tribunal, the Public Service Staff Relations Board, and the Canadian Immigration and Refugee Board—reactions and results have been mixed. This may reflect the unresolved relationship between the public mandate of these agencies and the private settlements reached in mediation. [6] Nonetheless, program development and evaluation are continuing in these and other administrative agencies, indicating that mediation continues to be regarded as an appropriate dispute resolution mechanism for some cases in such settings. [7]

• Community mediation programs often collect feedback from client users. The biggest problem confronting community mediation services has been lack of case referrals, but not the enthusiasm of those who have chosen to use their services. [8] Moreover, community mediation programs have clear potential for the development of strong communities in which levels of conflict are reduced and peace and order are widely promoted. [9]

• Early restorative justice projects in Aboriginal communities were welcomed by many, though not all, members of these communities and in some cases have produced very significant results (see, for example, the earlier discussion of CHCH). Even those who raise the dangers of restorative justice processes do not reject their use; instead, they press for more information to be provided to potentially vulnerable participants, a strong emphasis on the dynamics of family violence, and the development of broader antiviolence initiatives. [10]

• Restorative justice processes in non-Aboriginal communities have recorded high rates of participant satisfaction. [11] A 1995 evaluation of four Canadian victim–offender programs—the Ottawa–Carleton Dispute Resolution Centre, Mediation Services Winnipeg, Victim–Offender Reconciliation Langley, B.C. (part of the Fraser Region Community Justice Initiatives), and the Youth

Evaluation of the Collaborative Justice Project (CJP)

"A preliminary review of the post-program interviews, with both victims and offenders, indicated that CJP participants, for the most part, are very happy with the Collaborative Justice Project. The majority of participants interviewed expressed satisfaction and concluded the interviews with the endorsement that this program should be continued. Participants praised the CJP staff for making this program possible, and being committed to providing ongoing support in a compassionate, understanding and non-judgmental manner. In general, participants expressed positive thoughts on meeting the other party, specifically the victims being able to address the offenders, and obtain answers for their questions. Furthermore, victims also voiced satisfaction about being involved in the overall justice process. Finally, participants appreciated the sense of closure that the program allowed them."

From the Collaborative Justice project website: http://www.ccjc.ca/news/march2002.cfm.

Advocacy and Mediation Services Program in Calgary—found consistently high rates of satisfaction among users. Parties who used mediation were significantly more satisfied with their experience of the criminal justice system than those who did not use mediation (78 percent compared with 48 percent, among victims; 74 percent compared with 53 percent, among offenders). [12] Similar results were reported in the RCMP’s 1999 evaluation of its Community Justice Forums initiative (used for minor crimes, such as theft, assault, drug use and possession, and directed mainly at youth offenders). That internal evaluation reported that 96 percent of participants in these forums found the process to be “very” or “quite” fair; 89 percent of victims rated the agreement or outcome as “very” or “quite” fair, compared with 77 percent of offenders. Another restorative justice project, the Ottawa Collaborative Justice Project, is currently being evaluated by the Corrections Research and Development Division of the Department of the Solicitor General.

• Restorative justice processes consistently report high rates of agreement. The 1995 study reported that agreements were reached in 92 percent of cases surveyed across the four sites. [13] Greater concern arises in relation to compliance, which may reflect the low level of resources currently available for monitoring and follow-up. However, note that the RCMP’s Community Justice Forums initiative reports compliance at 85 percent. [14]

• Community interest in participatory justice has increased markedly over the past few years. Academic institutions have also supported a number of centres of excellence across Canada which conduct research and support program development. These include:

• Conflict Resolution Network Canada—This broad-based conflict resolution organization develops, promotes, and extends the use of conflict resolution and restorative justice processes, such as negotiation, mediation, consensus-building and peacemaking circles.

• Native Counselling Services of Alberta—This non-profit organization employs approximately 150 full-time staff throughout Alberta. A board of directors, which is made up of Métis and Non-Status and Status Indians, governs the organization. The mission of the organization is to contribute to the holistic development and wellness of the Aboriginal individual, family and community. By respecting differences, it promotes the fair and equitable treatment of Aboriginal people. In addition, by developing and maintaining strong partnerships and honouring those relationships, the agency is committed to evolving proactively with the changing environment.

• Regroupement des organismes de justice alternative du Québec (ROJAQ)—This provincial non-profit organization promotes the development of alternative justice organizations in Quebec. ROJAQ also promotes community participation in the administration of youth justice; it supports training and exchanges of services between alternative justice organizations in Quebec; and it supports the development of youth justice community intervention programs.

• Conflict Resolution Co-op of Prince Edward Island—This cooperative promotes using and accepting non-violent approaches to conflict. It also fosters, develops, and communicates information on conflict resolution processes for individuals, families, organizations and communities and provides opportunities for education, skills development and understanding conflict issues.

• Peacemakers Trust—This Canadian charitable organization is dedicated to research and education on conflict resolution and peace-building.

• YouCAN! (Youth Canada Association)—This national non-profit charitable organization is dedicated to empowering youth and building a culture of peace among youth today. The organization helps young people develop the skills needed to build peace, resolve conflicts, and participate actively in youth issues.

• The Centre for Restorative Justice, Simon Fraser University—In partnership with individuals, the community, justice agencies and the university, the Centre exists to support and promote the principles and practices of restorative justice. The Centre provides education, innovative program models, training, evaluation and research through a resource centre and meeting place that facilitates outreach, promotion, dialogue and advocacy.

• The Restorative Justice Diploma Program, Queens Theological Program, Queens University—The Restorative Justice Diploma program is a theologically grounded exploration of the vision of, the reshaping of relationships through, and the action of restorative justice. A three-week intensive study program combined with a 200-hour supervised field placement, this program can also form a concentration for graduate level studies.

• The Church Council on Justice and Corrections— This national coalition of faith-based individuals and churches acts as a shining light for a more humane way of doing criminal justice. The Council has been working toward a restorative model of justice for over 25 years.

These programs and many more throughout Canada constitute the backbone of participatory justice. Further initiatives to strengthen our commitment to participatory justice must build on the support and expansion of the current experience developed through the existing programs.

7.2 A PROACTIVE GOVERNMENT ROLE

Despite the demonstrated benefits that flow to citizens and communities from participatory initiatives, these programs often remain secondary, marginalized, or alternatives to the dominant justice model. The network of participatory justice programs that now stretches across Canada relies heavily on the enthusiasm and commitment of local volunteers and year-to-year project funding. Even court-based programming is often sustained on a pilot basis, while efforts are made to secure its continuity. [15] Relying wholly or primarily on community initiative and public demand might not move participatory initiatives into the mainstream of conflict resolution processes. Because the status quo lies elsewhere—in the traditional criminal justice and civil litigation systems—a more intentional government strategy may be needed to achieve significant change in our habitual response to conflict and conflict resolution.

Public education about alternatives to conventional dispute resolution processes continues to be vital. The best efforts of a network of largely autonomous community projects cannot effect the type of change in public knowledge and disputing habits that is necessary to move participatory processes into the mainstream of Canadian life. The continued expansion and strengthening of participatory processes in both community and court settings requires instead that government play a part in the growth of stable, credible and successful programs that manage and resolve conflict consensually and through dialogue.

There are good reasons for looking to government to play a stronger role in sustaining existing programs and developing new initiatives. Those who work in community-based programs currently spend a large percentage of their time and energy seeking and then maintaining funding. Funding is piecemeal, from many different sources, and is frequently related to short-term projects. St. Stephen’s Community House Conflict Resolution Services in Toronto, one of the oldest community mediation programs in Canada, is a typical case. St. Stephen’s is currently funded by the Toronto municipal government, the Ontario Ministry of Citizenship and Culture, Ontario Ministry of the Attorney General, Heritage Canada, and the federal Department of Citizenship and Immigration. In addition, community mediation services are sometimes able to obtain funding from the National Crime Prevention Strategy, the Department of Justice Canada and the Solicitor General of Canada, and provincial victims’ services departments. This patchwork of funding sources means that community programs face constant uncertainty and must continually search out new sources of potential funding. This often requires the organization to adjust its goals and service provision to meet the needs of the funding provider. [16]

"Having small grants from many sources means having to please many masters, each with different reporting demands ... [M]aking different reports to many funding agencies can be time consuming and resource demanding. Compare this to other projects funded by a single government department or a central agency ... with one report to make and usually a consistent contact person who understands the program and may even advocate for it."

G. Husk, "Making Community Mediation Work," in J. Macfarlane (ed.),

Rethinking Disputes: The Mediation Alternative

(Toronto: Emond Montgomery, 1997) 281 at 290.

Some programs have found that referral links to traditional justice agencies are critical to establishing their credibility within the community, at least at an early stage in their development, as well as in maintaining an adequate case-referral base. [17] Partnerships between participatory processes and local agencies, such as a police department or a small claims court, are presently negotiated on an individual basis and often rely on a particular police officer or small claims court judge to encourage participatory dispute resolution. Such arrangements sometimes require years of careful nurturing. A clearer and stronger government commitment to participatory processes would render these negotiations more straightforward and certain.

Finally, it must not be forgotten that there are real concerns, described earlier in this report, that allowing dispute resolution programming to operate completely autonomously, without government oversight might mean that some programs become tyrannical, intolerant or careless of the needs of marginalized individuals. The absence of external scrutiny and accountability might permit the development of closed systems in which those aggrieved with their experience in a restorative or consensus-based justice program would have nowhere to complain except to the program itself.

The Australian National Alternative Dispute Resolution Advisory Council concluded that while the climate of reform suggested that government regulation should be seen as a principle of "last resort," and there was little evidence of public dissatisfaction with alternative dispute resolution (ADR) services, nonetheless "there is a strong public interest in promoting ADR, and a purely free market approach would be unlikely to manage the risks associated with ADR or to enhance community confidence in ADR."

D. Syme, "Challenges for Mediation Practice in Australia: Standards for ADR: The Balancing Act," National Alternative Dispute Resolution Advisory Council (Australia), commenting on the proposed Standards for ADR, online: www.nadrac.gov.au.

7.3 STRIKING A BALANCE: AUTONOMY, OVERSIGHT AND SUPPORT

If some type of government role is essential to ensure that participatory processes retain their vibrancy, impact and influence, just what should that oversight look like? The challenge of finding an appropriate structure raises questions of control and autonomy familiar to community activists and policymakers alike. The community justice movement—as well as some of the programs and leaders that have emerged from that tradition—has often regarded the involvement of government in community justice initiatives as detrimental and counterproductive. It is sometimes contended that giving government a role in the development of these programs will lead to a dependence on government-driven structures and resources that will ultimately undermine the ability of communities to make good decisions for themselves and their members. But without some role for government in legitimating and promoting participatory processes, these initiatives may simply cease to grow and flourish. The answer seems to lie in the creation of a partnership between state and communities that would combine the vitality and local knowledge of community-based initiatives with the accountability and resources offered by government.

The concerns of those who fear that government involvement would defeat the objectives of participatory processes must be addressed in any proposed regulatory framework. As well, the interests of government must be met in developing a regulatory approach that satisfies the contemporary context. In the discussion of how to strike this delicate balance, the following guiding concerns provide a useful benchmark.

1. How can government support participatory initiatives in a way that recognizes and celebrates the diversity of the field?

2. How can government support participatory initiatives in a way that protects the public interest in fair, non-coercive dispute resolution processes?

3. How can government support participatory initiatives in a way that values local knowledge and respects communities?

4. How can government support the outcomes of participatory processes, while monitoring their fairness and integrity? [18]

7.4 ROLES FOR GOVERNMENT IN THE PROVISION OF PARTICIPATORY JUSTICE

Governments may choose from a variety of possible roles to support the development and enhancement of innovative conflict resolution processes. Government may cast itself in the role of regulator or of coordinator. Regulation envisages a more proactive role for government in standard-setting and oversight, while coordination limits the role of government to facilitating the organization of programs for accountability and to supporting them with expert advice (for example, training or assistance with program design) and funding. Governments can also support participatory justice in their role as participants in conflicts and in their role as providers of conflict resolution services. Government litigators can advance the development of participatory justice by choosing participatory processes to resolve their disputes. Finally, governments can promote participatory processes through information to citizens. These roles are not mutually exclusive.

Each of these possible strategies for the greater involvement of government in participatory initiatives will be considered in turn, drawing on current experience and models operating elsewhere.

7.4.1 Government as provider

Governments provide participatory justice processes in various ways. They currently offer mediation and conciliation services in various departments and through the justice system. For example, the Federal Mediation and Conciliation Service (FMCS) is responsible for providing dispute resolution and dispute prevention assistance to trade unions and employers under the jurisdiction of the Canada Labour Code. FMCS, which is part of Human Resources and Development Canada, offers a number of services to assist employers and unions in resolving industrial relations disputes and in improving labour-management relations. These services include conciliation, mediation, preventive mediation and grievance mediation.

Recently, the Canadian Human Rights Commission also decided to put a stronger emphasis on using mediation techniques to resolve human rights complaints. The mediation provides a non-adversarial context in which parties can address their needs and interests and find a solution. Mediation is now offered at every stage of the complaint process. In addition, several federal government departments have taken advantage of a Dispute Resolution Fund to develop mediation programs. These are some examples.

• The Early File Review Project—Officials at Human Resources Development Canada took on a 2,000-case Canada Pension Plan disability case backlog, identified 900 cases for review, and settled 202 cases.

• Canadian Environmental Assessment Agency—The Dispute Resolution Fund provided support for implementation of the Canadian Environmental Assessment Agency’s (CEAA) dispute resolution strategy, including creation of a dispute resolution specialist position, building capacity for and acceptance of dispute resolution processes within CEAA; and for a pilot project that will use dispute resolution in the environmental assessment process.

• Citizenship and Immigration Canada—A new initiative was developed to design and develop dispute resolution models and processes for use throughout Citizenship and Immigration Canada. This initiative occurred concurrently with the implementation of the Immigration and Refugee Protection Act.

Governments must continue to offer mediation services to their citizens. As governments develop new programs where disputes between citizens or between citizens and government are likely to occur, they should create participatory processes along the lines defined in Chapter 6. Ideally, these mediation services should not be late developments or add-ons to the existing dispute resolution mechanism, but constitute an integral part of the approach to conflict resolution proposed by governments.

In addition, governments can encourage the development of participatory justice by actively developing a culture of participatory justice within their organization. For example, the Correctional Service of Canada (CSC) has attempted to take a leadership role in using the principles of restorative justice to help resolve conflicts within prisons. CSC has advanced restorative justice and dispute resolution approaches to address various types of conflict including those that involve staff and inmates. Access to trained resource people is made possible through the use of peer mediation, shared mediators from other government departments and professional facilitators. In addition, facilitated processes are being used to resolve some policy issues and in departmental decision-making.

A culture of participatory justice cannot develop in isolation from the dominant culture of an institution. To be able to resolve disputes with citizens in a non-adversarial way, civil servants must have experienced it within their work environment. It is therefore recommended that governments continue to actively provide participatory processes to resolve conflicts within their institution, in their disputes with citizens and when they provide conflict resolution services, such as in the court system or in administrative tribunals.

7.4.2 Government as coordinator and promoter

To date, government efforts to coordinate the development and delivery of alternatives to adjudicative justice have been limited to establishing offices to coordinate intra-governmental activities. For example, both Ontario and British Columbia now have a dispute resolution office, in each case located within the provincial ministry of the attorney general. These units offer training to government employees; promote the design of internal dispute resolution processes using interest-based approaches and consensus-building; and provide recommendations for mediators and interveners in specific disputes. In Quebec, ROJAQ exists to coordinate and promote the actives of those engaged in participatory justice processes.

The federal Department of Justice has also established the Dispute Resolution Services (DRS), which promotes and coordinates dispute resolution initiatives within federal government departments and sometimes facilitates discussion between departments and interest groups (for example, Justice and the plaintiff groups in the residential schools lawsuits; and fishers, resource managers and the Department of Fisheries and Oceans).

These dedicated government offices are important signals that government regards the development of policy in the area of dispute resolution to be a priority. However, none of these offices currently has a mandate to coordinate existing programs outside government (either court-connected or community-based) or to comprehensively promote participatory dispute resolution to the public.

In the United States, most participatory justice models are regulated by an office within the judicial branch of government. However, some state offices coordinate and support community-based resolution programs. For example, Nebraska’s Office of Dispute Resolution (ODR) oversees the development of all dispute resolution programs (both court-based and community-based) and has developed a public-community partnership that allows ODR to work collaboratively with Nebraska’s community mediation centres. This partnership operates across six regions served by community mediation centres but is adapted to the needs of each. The partnership enables shared decision-making, programming, training and fund-raising. The result has been a growing caseload at community mediation centres and the establishment of program policies and procedures for dispute resolution services provided by community groups. ODR also provides oversight of program quality through a Policy Manual and Training Institute Standards and Guidelines. Each centre submits quarterly reports, which ODR uses for a state-wide quarterly report of all system activity.

The Florida Dispute Resolution Center was established in 1986 as the first state-wide centre for education, training and research in alternative dispute resolution (ADR). Today the Center coordinates court-connected mediation programs in the Florida Supreme Court, certifies mediators and mediation training programs, provides introductory mediation training to volunteer mediators working in county court mediation programs, and provides technical assistance to state courts developing new program alternatives to conventional adjudication. The Center, which operates as a joint court-university initiative, also administers and coordinates the Supreme Court Committee on ADR Policy, which advises the state on matters of ADR policy.

For further information see the website: www.flcourts.org/osca/divisions/adr.

However they are organized, each of these agencies includes programs of public education, which strongly promote alternatives to traditional dispute processing. Public education on the issue of participatory justice processes is key.

It is recommended that governments assume a greater coordinator and promoter role in participatory justice and undertake the following:

• Coordinating sources of public funding.

• Actively promoting participatory processes through public education and accessible training.

• Providing specialized training for interveners and program staff.

• Facilitating networking and information exchanges among various programs.

• Sponsoring research and evaluation.

7.4.3 Government as regulator

The most delicate role that governments can assume is to assume a regulatory function in the context of participatory justice. In the traditional role of regulator, governments become gatekeepers for the development and maintenance of programs, linking their contributions to program resources to oversight and monitoring. The role of regulator opens up two separate but related tasks for governments: developing new programs and processes, and overseeing and monitoring initiatives.

Program development—The most direct approach to program development is for government to adopt a strategy that requires participation in particular programs, which are themselves closely regulated by procedural rules and requirements. Some examples of this approach include mandatory mediation schemes that have developed in provincial jurisdictions; [19] mandatory case management that has been established by procedural rules of court in a number of provinces; and participation in mediation as a prerequisite for family legal aid. [20] In New Zealand, family group conferences are mandatory for all cases involving young offenders, with the exception of murder and manslaughter offences.

Several jurisdictions have developed mandatory mediation schemes. As discussed earlier under the requirement of voluntariness, this strategy is only appropriate for certain types of programs for given periods of time. Any mandatory requirement should operate alongside extensive public and lawyer education programs, to reduce the gap between conventional expectations and the experience of participatory justice. The strategy should be to persuade, not to punish, in response to non-compliance.

A slightly less directive approach is to make it mandatory to offer participatory processes. An example of this approach in the context of court-connected mediation can be seen in the rules of procedure applied in Minnesota, [21] where counsels are required to meet to decide which dispute resolution approach, including mediation, will be most suitable for the progress of the case.

Another alternative is the new restorative justice initiative in Nova Scotia where justice officers must consider the potential for referral to an alternative-measures process at four stages: pre-charge, charge, pre-sentence and post-sentence, [22] and police officers are required to complete a “restorative justice checklist” for all cases involving minor offences. [23] While the “participation rate” (the number of cases diverted in restorative justice processes) will still depend on the willingness of justice officers to consider this alternative, there is now strong government and institutional (through a new restorative justice community agency) support for at least an initial appraisal to be made of the appropriateness of a restorative justice strategy in each case.

The least interventionist approach to program development is for government to offer a range of support and incentives both to communities wishing to develop participatory projects and to individuals wishing to access these programs. Examples of support and incentives to communities and projects could include the following:

• Easily accessible grant programs;

• Provision of local training (and trainers);

• Assistance with design advice for new or expanding program­ming; and

• Access to networking and dialogue.

Encouragement for members of the public to at least consider consensus-seeking approaches may operate even more informally. For example, many family mediation projects operating in the courts offer mediation on a voluntary basis, but in practice many family court judges in those courts will ask parties if they have considered mediation, and if they have not, will ask them to do so.

Additional structural incentives for individuals to use participatory processes should include:

• Accessible public information and education.

• The availability of professional advice outlining the various alternatives for dispute resolution in any particular dispute and locality and the ramifications of each.

• Access to legal counsel and other advocates. It is essential that those who choose to use these processes should have the same access to legal counsel and other forms of advocacy support as those who choose to remain in the traditional adjudicative system. For example, present legal aid rules do not always compensate counsel for participating in circles or appearing before community justice panels.

Oversight and monitoring—The oversight function of government as regulator can also take many different forms. Traditionally, government oversight of professional services has taken the form of accreditation and qualification restrictions placed on service providers, albeit often devolved through self-regulation. Self-regulation depends on a bargain between the service providers and the government, in which the former are granted autonomy and privileges (through accreditation) to offer their services, while in return the state receives a guarantee that services will be provided with competence and integrity. Each party to the mutual promise or agreement may hold the other to account: the state, by demanding that service professionals develop credible internal procedures to respond to public criticism (at the risk of losing their independence from government oversight); and the profession, by reminding government that it possesses the greater wisdom and experience in ensuring its services are delivered effectively. [24]

Assuming that some type of regulatory or oversight framework is necessary to strengthen and build existing programs, self-regulation offers participatory initiatives the greatest degree of autonomy from government. There is some logic, perhaps, to adopting the same regulatory model for dispute resolution programs operating outside the conventional justice model as that applied to professionals operating within the traditional adjudicative model. [25]

However, there are a number of difficulties with adopting self-regulation in participatory justice services. The most common criticism of self-regulation is that it cannot ensure that the public interest is placed before the private aspirations of the members of the group. Participatory processes have developed significantly from community projects and community empowerment. In a participa­tory model, the needs of the community (or individual disputants) are in many respects the same as those of the process facilitators: good outcomes that enable a reduction of the costs of conflict, closure, and perhaps even forgiveness and peace. To place the regulation of such a practice in the hands of a professional body would in many ways show a misunderstanding of the work that is being done in victim–offender programs, in community mediation services, and even in some court-connected programs.

Characteristic of all self-regulation schemes is that the body given statutory responsibility to regulate must assume and exercise very wide powers over those whom it regulates. The nature of participatory justice practice, as it is presently developing through

"Without some minimal standard of training, we risk causing harm to communities, instead of restoring harmony through joint problem-solving in a caring, respectful environment. We also risk losing credibility for this relatively recent restorative approach itself."

"A Report on the Evaluation of RCMP Restorative Justice Initiative: Community Justice Forums as Seen by Participants," online:

court and community groups, is that there is so much variegated and decentralized growth—perhaps localized in successful and highly credible court programs or voluntary services—that it is hard to imagine a single regulatory body. The debate over qualifications and standards in the conflict resolution field has a long history and remains unresolved in Canada where there is a patchwork of private qualifications offered commercially, but no provincial or national accreditation. Because of this history of the qualifications debate, this chapter will not consider the role of government in accreditation, although it recognizes that accreditation constitutes a possible regulatory strategy that government could choose to adopt.

A far more appropriate approach is to consider state–community partnerships providing oversight of local programs. In this framework, oversight could take the form of broad threshold standards, leaving the projects themselves to determine their specific operating practices, according to local conditions. These could be as diversified and need-specific as possible, as long as threshold standards of good practice can be maintained.

An example of a recent government–community collaboration occurred in British Columbia, where a group of practitioners and academics developed a model of self-regulation for restorative justice practitioners. The purpose of the document is to articulate what guides their work, practice and commitment to restorative justice. The British Columbia Charter is meant to be a “living, breathing document—a continuous work in progress.” It was developed following discussions with “various practitioners in the field of restorative justice in the Province of British Columbia and beyond.”

Government can gain from the experience of established programs by encouraging the development of flexible standards. These standards should cover areas such as:

• Process intake and screening practices (for example, taking special care when reviewing cases in which there appears to be the possibility of fear or intimidation or where one or more parties has expressed this concern);

• Conduct of the process itself (whether mediation, panels, circles or other processes), to ensure clarity regarding rules on confidentiality and participation, as well as any limits on possible outcomes;

• Procedures for enforcing compliance with outcomes; and

• Any stipulations regarding the qualifications (and any potential disqualifications) of those conducting the process (whether as mediators, facilitators or Keepers of the Circle).

This report contains a number of possible models for such standards, including the articulation of the values, principles and objectives of participatory processes; and the 12 guiding principles for program design elaborated earlier. These models reflect the

British Columbia Charter for Practitioners of Restorative Justice

"The purpose of this document is to articulate that which guides us in our work, practice, and commitment to restorative justice. The following is a Charter for Practitioners of Restorative Justice that is a living, breathing document—a continuous work in progress. This draft is based on the discussions and contributions of various practitioners in the field of restorative justice in the Province of British Columbia and beyond. We wish to recognize the many tributary streams that fed our dialogues and honour all who have taught us. We respectfully acknowledge that restorative practices strive to embody values and principles that are akin to and informed by holistic peace and justice making processes in many First Nations communities. We gathered as a group with history and experience, not to attempt to set the standard for the field, but to carefully consider the ethics surrounding our personal practice."

Available at Simon Fraser University's Centre for Restorative Justice website: http://www.sfu.ca/cfrj/current.html#resources.

present state of knowledge and experience in the field and provide a starting point for the collaborative development of generic, as well as project-specific, standards in partnerships between government and service providers.

A regulatory strategy based on collaboratively developed standards would enable government to have some knowledge and oversight of participatory initiatives, work cooperatively with program providers to maintain high standards, and encourage good practice. This approach may require establishing a government agency that would have responsibility for facilitating the development and review of program standards. Programs themselves could then be charged with self-evaluation and regular reporting, perhaps with periodic external evaluations. Alternatively, the standards could be used simply as an internal evaluation measure for the programs and users themselves. Individual programs should be encouraged to provide a means for concerns and complaints to be brought forward that can be addressed in program evaluation. Carriage of unresolved complaints could be a further function for a government agency; concerns and issues that surface consistently should drive future research and evaluation projects sponsored by government. The DVD produced by the National Film Board that accompanies this report provides an example of a self-evaluation exercise by mediators that could be used.

The regulatory model proposed is, therefore, one of persuasion by modelling, praise and encouragement of good practices, rather than rule-making and sanctions. [26] This shifts responsibility to the programs themselves to apply standards in a contextually responsive manner, recognizing the unique services they provide. This approach not only recognizes the expertise of existing participatory processes and the importance of local knowledge, but also may be more efficacious. [27] It is more important that authentic monitoring take place with the full cooperation of the programs themselves than that evaluation occur mechanically to satisfy a set of external rules.

This approach to standard-setting would be in the spirit of collaboration, flexibility and responsiveness to diversity, but would nonetheless allow governments to take leadership in monitoring and disseminating good practices.

7.5 A PARTNERSHIP BETWEEN GOVERNMENT AND COMMUNITIES

The roles set out above require that there be a partnership between government and participatory processes. This partnership strategy enables government to have oversight of dispute resolution programs, but in cooperation with service providers—courts, and community agencies. A co-regulatory partnership should also involve public interest groups by including representatives of the consumers of dispute resolution services, advocates’ groups and others who play a role outside court or community programs. [28]

In practice, co-regulation can operate across a continuum of interventions by government. This would mean a proactive government role in the building of participatory initiatives within communities and courts, consisting of both the regulation and the coordination of services.

The final component of this proposed new strategy is the intentional creation of a relationship between government and those communities that both deliver and access alternative processes. There are already within the field many excellent examples of partnering arrangements that have evolved naturally from local circumstances. For example, the John Howard Society of Manitoba has taken the initiative in developing Victim–Offender Mediation programs in some communities, and these programs have gradually become institutionalized in the local courts. Further examples can be seen in community mediation programs that have developed referral links with local police departments, courts and schools.

In the context of participatory processes, the components of a government-community partnerships might look like this:

• Government would explicitly endorse the development of initiatives that offer choices to disputants other than those of traditional adjudication, in both civil and criminal matters.

• Government would address the current piecemeal resourcing of such initiatives by coordinating funding and investing in core activities.

• Communities would take primary responsibility for manage­ment, program design and delivery.

• Government and communities would collaboratively develop standards for program design and delivery, for example, along the suggested model of the 12 guiding principles for the design of participatory processes.

• Government and communities would collaboratively develop evaluation and monitoring mechanisms for programs, along the model outlined in Chapter 6.

• While government would expect to receive assurances that core principles were being adhered to (for example, the principle of voluntariness), programs would be afforded considerable flexibility in adapting evaluation to local needs and conditions. [29]

1. Currently regulated under the Queen’s Bench Act, S.S. 1998, c. Q-1.01; originally introduced in the Queen’s Bench Act, 1994.

2. Currently regulated under O. Reg. 194/90, Ontario Rules of Civil Procedure, Rule 24.1.

3. Currently regulated under BC Reg 127/98, Notice to Mediate Regulation, authority for which is contained in the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231. No evaluation data are currently available, although a study is in progress.

4. J. Macfarlane, Building on “What Works”: An Evaluation of the Saskatchewan Queen’s Bench Mediation Program (Regina: Saskatchewan Justice, 2003).

5. R. Hann, C. Barr and Associates, Evaluation of the Ontario Mandatory Mediation Program: Final Report-The First 23 Months (Toronto: Ontario Queen’s Printer, 2001) at 55–58.

6. Critics argue that ADR methods “amount to a private justice system that does not always protect the public’s interest in procedural fairness or disclosure of how disputes were resolved.” See T.A. Kochan, B.A. Lautsch and C. Bendersky, “Massachusetts Commission Against Discrimination Alternative Dispute Resolution Program Evaluation” (2000) 5 Harvard Negotiation Law Review 233.

7. See, for example, the following evaluation reports: L.H. Macleod and Associates, Assessing Efficiency, Effectiveness and Quality: An Evaluation of the ADR Program of the Immigration Appeal Division of the Immigration and Refugee Board (Ottawa: Immigration and Refugee Board, 2002); 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 (2001); and J. Macfarlane, J. Manwaring and E. Zweibel, Negotiating Solutions to Workplace Conflicts: An Evaluation of the Public Service Staff Relations Board Grievance Mediation Pilot (Ottawa: Public Service Staff Relations Board, 2001).

8. See G. Husk, “Making Community Mediation Work” in J. Macfarlane, ed., Rethinking Disputes: The Mediation Alternative (Toronto: Emond Montgomery, 1997) at 287.

9. A report for the government of Scotland on three community mediation programs concluded that “[C]ommunity mediation could be developed as an important component of a comprehensive strategy to promote civility and social integration, to reduce conflict, to deal with some offences which arise in the course of neighbourhood disputes, and to prevent the escalation of disputes at an early stage.” R.E. Mackay and A.J. Brown, Community Mediation In Scotland: A Study Of Implementation (Dundee, Scotland: University of Dundee, Department of Social Work, 1998).

10. W. Stewart, A. Huntley and F. Blaney, The Implications of Restorative Justice for Aboriginal Women and Children Survivors of Violence: A Comparative Overview of Five Communities in British Columbia (Ottawa: Law Commission of Canada, July 2001) at 41-43.

11. For a state of the art review of empirical studies on restorative justice and mediation, see M. Umbreit, R.B. Coates and B. Voss, Restorative Justice Dialogue: Annotated Bibliography Of Empirical Studies On Mediation, Conferencing And Circles, (St. Paul: Center For Restorative Justice Peacemaking, School of Social Work, University of Minnesota, 2003).

12. M.S. Umbreit, Mediation of Criminal Conflict: An Assessment of Programs in Four Canadian Provinces (St. Paul: Center for Restorative Justice and Mediation, School of Social Work, University of Minnesota, 1995) at xi.

13. Umbreit, ibid.

14. Royal Canadian Mounted Police, A Report on the Evaluation of RCMP Restorative Justice Initiative: Community Justice Forums as Seen by Participants, online: http://www.rcmp-learning.org/restjust/docs/ccap0004.htm (date accessed: 17 September 2003).

15. For example, the Hamilton Unified Family Court operated a “pilot” mediation program for eight years before it became a permanent feature of the courthouse, despite a very favourable evaluation; see D. Ellis, Evaluation of the Hamilton Family Court Pilot Mediation Project (Hamilton: Ellis and Associates, 1994). In Ontario, a debate over the development of a permanent Rule of Civil Procedure for court-connected mediation was conducted in the Civil Rules Committee for two years before the introduction of Rule 24.1 (O. Reg. 194/90).

16. Personal communication with Peter Bruer, Director, St. Stephen’s Community House Conflict Resolution Services, 8 January 2003.

17. J. Benoit, J. Kopachevsky, S. Macdonald and G. MacDonald, Evaluating the Effects and Methods of Mediation: A Summary Report (Halifax: Institute of Public Affairs, Dalhousie University, 1986).

18. Substantially adapted from Evaluation, Audit and Review Group, Regulatory Reform Through Regulatory Impact Analysis: The Canadian Experience (Ottawa: Treasury Board, 2002).

19. Saskatchewan: Queen’s Bench Act, S.S. 1998, c. Q-1.01; Ontario: O. Reg. 194/90, Ontario Rules of Civil Procedure, Rule 24.1.

20. This has been the policy at the legal aid offices of London and Windsor.

21. Rule 114, Minnesota General Rules of Practice. And see the evaluation of that rule in B. McAdoo, The Impact of Rule 114 on Civil Litigation Practice in Minnesota (Minneapolis: Minnesota Supreme Court, Office of Continuing Education, 1997).

22. D. Clairmont, “Restorative Justice in Nova Scotia” (2000) 1:1 Isuma: Canadian Journal of Policy Research 145.

23. A. Thomson, Formal Restorative Justice in Nova Scotia: A Pre-implementation Overview (prepared for delivery at the Annual Conference of the Atlantic Association of Sociologists and Anthropologists, Fredericton, October 1999).

24. >See, generally, the discussion by C. Schneider, “A Commentary on the Activity of Writing Codes of Ethics” (1985) 8 Mediation Quarterly at 83.

25. For example, the Law Society of Upper Canada is regulated under the Law Society Act, R.S.O. 1990, and this statute empowers the benchers elected by the Society’s members to govern the profession “in the public interest.” Law Society Act, R.S.O. 1990, c. L-8, s. 10.

26. J. Braithwaite, “Restorative Justice: Assessing Optimistic and Pessimistic Accounts” (1999) 25 Crime and Justice 1 at 9-11; and see, generally, Ayres, supra note 27.

27. For a discussion of a persuasion strategy in nursing home regulation compared with a traditional rule-based regulatory regime, see J. Braithwaite and T. Makkai, “Trust and Compliance” (1994) 4 Policing and Society 1. For a wider exposition of these ideas in relation to regulatory policy, see J. Braithwaite, “The New Regulatory State and the Transformation of Criminology” (2000) 40:2 British Journal of Criminology 222.

28. For a detailed discussion of tripartism, its rationales and implications for regulatory policy, see Ayres, supra note 27 at chapter 3.

29. Another possible model here is the existing funding agreement between Indian and Northern Affairs Canada and Aboriginal communities, which defines minimal accountability standards for a five-year block grant but allows Aboriginal communities “to redesign programs to meet specific community needs, subject to maintaining minimum delivery standards.” Indian and Northern Affairs Canada, Funding Agreements, online: http://www.ainc­inac.gc.ca/ps/ov/agre_e.html (date accessed: 17 September 2003).