Home About Us Reports Final Report 2003 - Transforming Relationships Through Participatory Justice Chapter 4 Restorative Justice and Consensus-based Justice: Common Elements, Critiques and Concerns

About Us

Reports

Final Report

Transforming Relationships Through Participatory Justice

Chapter 4 Restorative Justice and Consensus-based Justice: Common Elements, Critiques and Concerns

Restorative justice and consensus-based justice have developed in response to related concerns about the deficiencies of existing adversarial dispute resolution processes. In many ways the differences between a criminal wrong and a civil wrong are arbitrary. Conventional dichotomies (public–private, criminal–civil, state-citizen) explain disputes in the light of applicable legal and procedural rules and principles. But it is sometimes difficult to sustain a fair and logical distinction between wrongs that are always private concerns and those that are always matters for public adjudication. Indeed, these conventional dichotomies themselves are often considered responsible for maintaining boundaries that are antithetical to many contemporary ideals. It is similarly challenging to identify a clear social consensus in a diverse society that designates certain behaviours as wrong and others as right. [1] There may be excellent reasons to treat some conflicts differently from others—for example, impact on the community, degree of harm, relative power of the affected parties—but the conventional dichotomy between criminal matters and civil matters is only one dimension of this differentiation.

Chapter 4 will explore points of convergence and divergence between restorative justice and consensus-based justice.

4.1 POINTS OF CONVERGENCE BETWEEN RESTORATIVE JUSTICE AND CONSENSUS-BASED JUSTICE

This section describes points of convergence between restorative justice and consensus-based justice. Both systems are underpinned by a common vision. These participatory processes are committed to generating outcomes that can be designed and embraced by those affected, rather than imposing outcomes in advance and from the outside. This section provides an overview of a set of values that restorative justice and consensus-based justice hold in common. There are three key areas in which the vision of restorative justice and that of consensus-based justice overlap:

• Conception of harm

• Conception of justice

• Focus on relationships

4.1.1 Conception of harm

In criminal law, an act is assumed to cause harm if it is defined as a crime in the Criminal Code: an act that violates the Criminal Code is inherently harmful, independent of the type or level of actual impact. If harm is inherent in particular acts, a retributive approach has strong logical appeal. The challenge is to match the harm with an appropriately equal punishment. [2]

Because harm is inherent in a criminal act, the impact of an act on a victim has historically been seen as somewhat irrelevant, exemplified in the virtual exclusion of victims from the process of assessing harm and its consequences. Instead, the central issue is proof that the act took place as claimed and was carried out by (or with the aid of) the defendant. Once proof is established, the question that remains is the level of culpability of the individual defendant. [3]

For both restorative justice and consensus-based justice, the purpose of conflict resolution is to identify the harm and to understand its impact. Restorative justice and consensus-based justice conceive harm as occurring first and foremost against an individual, a breach of a relationship—and secondarily as also having implications for the whole community. Both approaches suggest a vision of harm that is not necessarily inherent in the act itself nor an automatic consequence of a breach of rules, but as arising from its impact on others as individuals and community members. The notion of harm is contextually constructed and thus adaptable to the circumstances of the disputants or the offender and victim, and those who are secondarily harmed by the conflict (for example, the community, the industrial sector, third parties in commercial disputes, or children and other relatives in a marital breakdown).

4.1.2 Conception of justice

Restorative justice is about restoring a damaged relationship to a level of social equality—characterized by respect, mutual concern and dignity—rather than about advancing or protecting an abstract rule. [4] The objectives of formal equality—the maintenance of general rules— are different from those of a system more concerned with establishing or restoring actual equality and respect between particular persons in a given context following a particular set of actions or events.

Some authors describe restorative justice as “equal well-being.” To achieve equal well-being, different individuals will have different needs. This notion of needs-responsive justice cannot be proscribed or administered through a particular set of procedures or rules, which often privilege one or another rights holders and may perpetuate patterns of systemic inequality. Instead, equal well-being must be “created or achieved” [5] by those who participate in the process (participation being key to both a cognitive and an affective sense of equal well-being).

An important dimension of achieving justice through restorative justice is the creation of processes that enable different needs to be responded to differentially, without an assumption of same treatment. This vision of justice contemplates not only the resolution of interpersonal conflict and the restoration of those relationships, "[In an ideal state,] everyone feels that his or her present needs have been presented, acknowledged, respected and met, and, therefore, feels justly treated. When these conditions are met, there is an overwhelming sense that justice has, in fact, been done."

D. Sullivan and L. Tifft, "The Negotiated and Economic Dimensions of Restorative Justice" 22(1) Humanity and Society (1998) 38 at 40.

but also the redistribution of power within society. [6] This vision of justice is resonant of consensus-based justice models on the civil side. The shift away from a rights-centred approach to conflict resolution and toward the use of negotiation and mediation processes in which differences are articulated, needs are clarified, and appropriate norms are created. [7] Where litigation has already commenced, a consensus-based justice approach requires disputants to reconceive their conflict as one in which certain solutions other than a win–lose outcome are possible. To achieve even the possibility of such solutions, disputants must embrace some of the hallmarks of a consensus-based justice vision, including openness, direct dealing and a longer-term vision.

The hands-on creation of fair, consensual outcomes to conflict allows for the differential treatment of individuals and circumstances. Consensus-based justice processes thus have the potential to recognize and address systemic inequalities by changing the ways we relate to one another. [8]

Justice as it is conceptualized and practised in both restorative justice and consensus-based justice traditions is multidimensional. Both approaches reject the idea that a just outcome must only be consistent with pre-existing rules. Instead, the presumption goes the other way—that in almost every case the solution is integrative, rather than winner-take-all. For restorative justice advocates, notions of harm and responsibility are more complex than a simple determination of right and wrong. [9]

4.1.3 A focus on relationships

The nature of an adjudicative system that determines outcomes according to established rules and principles leaves little room to consider relationships. The formal legal system is interested in objective notions of relationships (parent, corporate officer, agent), rather than their subjective realities. Moreover, relationships are considered as they are presently constituted, with the evaluation of future relationships of little or no relevance (other than perhaps in child custody and access litigation). Adjudicators are not charged with mending relationships, only with addressing events and their ramifications.

Within every conflict or criminal behaviour, a relationship or set of relationships is affected. These relationships might be personal and intimate, arm’s length and formal, long term or short term, important to the parties or not. However, to neglect to recognize that there are relationship consequences of some kind for every type of conflict or conflict-producing act is to ignore what lies at the heart of personal experiences. Wherever there are people, the possibility of relationship conflict exists, and behind every corporate, institutional or otherwise representative action (including Crown prosecutions), there are real people.

Relationships and their possible transformation—or more often perhaps simply relationship issues and closure—are central concerns of restorative and consensus-based justice processes. Both approaches are committed to exploring the context and impact of harm and creating a sense of justice, rather than adopting pre-determined solutions.

Different types or levels of conflict resolution have different implications for future relationships. Bernard Mayer suggests that there are three possible levels of resolution for conflict:

• Behavioural resolution—in which behaviour is changed, by court order or perhaps by agreement;

• Cognitive resolution—in which there is a change in how the parties perceive the causes and outcomes of the conflict; and

• Emotional resolution—in which there is a difference in how the parties feel about the conflict and about one another. [10]

The adversarial system primarily addresses behavioural resolution; rarely does it address the parties’ attitudes toward one another or the causes of their conflict or their emotional needs. Mayer argues that while the potential exists for disputants to choose a different level of resolution, one not purely behavioural, this is the prerogative of the parties themselves and should not be imposed or assumed by any single process or third party.

On one level, restorative and consensus-based justice approaches re-establish the primacy of the personal experience of conflict and its resolution. This is implicit in the emphasis on face-to-face dialogue and “giving voice” and in the commitment to context-sensitive and individually chosen outcomes. In this way, both the restorative justice and the consensus-based justice models attempt to give conflict back to the disputants themselves, reversing the “theft” of their conflict by lawyers, prosecutors and justice officials. [11]

However, restorative justice processes, in particular, encourage the expansion of who we understand to be affected by criminal behaviour. They promote community empowerment and ownership of the causes and consequences of antisocial behaviours. Similarly consensus-based justice approaches, in practice, engage any person or group whose interests might be affected by the conflict, often dispensing with conventional notions of standing, to bring all those affected into the process of dialogue.

4.2 COMMON CONCERNS

There is an evident similarity in the social and political causes that have provided the momentum for restorative and consensus-based justice initiatives, in particular a desire for more self-directed and practical outcomes that are less costly to parties (including victims), both financially and emotionally. What many would see as a vehicle for social and personal transformation may also be utilized as a means to develop private and unregulated business solutions for corporations. Finally, there are fears about the dilution of the vision of restorative and consensus-based justice and their co-optation by institutionalized bureaucracies. These concerns are discussed further below.

4.2.1 Resources and training

In response to the growing recognition of the advantages, both personal and financial, of restorative processes, a myriad of sanctioning associations have sprung up across the country. This has led to considerable variation in prerequisites, educational requirements and practicum expectations. In some cases, family mediation in particular, justice departments have made efforts to ensure that only “qualified” individuals may work as mediators. [12] Although a level of sanctioning uniformity may improve client confidence, it no doubt serves to limit creativity in implementation and to circumscribe local variation in practices.

As previously noted, a major hurdle for restorative process initiatives has been both the limited and fragmented nature of funding programs. The resources needed to organize, including a core group of highly motivated individuals, may be lacking or may not be long lasting. Increased regulation and accreditation requirements threaten the capacity of grassroots organizations to function. Professionalization of any process comes at increased costs for education and training, costs which ultimately filter down to those attempting to bring in innovative programs. [13]

4.2.2 The commitment of the state to protecting all its citizens equally

The introduction of informal and unregulated dispute resolution processes—whether in the context of community conflicts, of grievances arising between individuals, or of allegations of criminal behaviour—has been subject to criticism by those concerned about the protection of especially vulnerable parties. [14] Vulnerable parties may make accommodations and hold back needs because they fear renewed violence or simply because they are intimidated. For example, in a divorce mediation, a woman who has been the victim of spousal abuse may experience pressure from her community to agree to an outcome that does not sufficiently protect her or her children from future harm. In a sentencing circle, the same woman may feel compelled to acquiesce to a sentence that she is not fully comfortable with and that does not adequately address the harm or inequality that has been caused. [15] Even if provision is made for ensuring the safety of the victim, a non-custodial sentence may implicitly send a message of tolerance for wife abuse. [16]

Alternatives to adversarial justice have drawn the fears and suspicions of many groups. Some of these advocates regard restorative and consensus-based justice processes, operating either independently of the formal legal system or behind closed doors without public scrutiny, as dangerous opportunities for getting weaker parties to concede to the tyranny of stronger ones—exactly what the rights-based system seeks to prevent. There is a real fear that rights-based gains for vulnerable or marginalized groups will be negotiated away in these unregulated environments. There are concerns about persons with disabilities being able to fully participate and be heard by the other parties to a conflict.

Authoritative adjudication is often seen as critical to the development of legal protections for the vulnerable or the less popular. The criminal law has developed protections for both those accused of crime (for example, rules on the admissibility of evidence and the protection of the Charter of Rights and Freedoms) [17] and victims (for example, the rape shield legislation [18] ). These hard-won rights should not be waived in an informal process behind closed doors. The fear is that private, unregulated processes may privilege more powerful parties in ways that—at least in theory—formal, public processes do not. [19] There are worries that cultural and other minorities may be unable to express their differences in the context of consensus-based justice processes.

There are especially concerns that issues of gender inequality will not be taken into account by informal dispute resolution processes. In a civil family context, scepticism has been expressed over the equal bargaining positions of separating spouses, not only in cases in which there has been a history of violence or intimidation, but also, for example, in those cases in which the husband has been the dominant emotional and financial figure in the marriage. [20] It has been suggested that the social pressures on a woman to seek a harmonious outcome—perhaps one that offers some stability for the children—may lead her to settle for less than she should in divorce mediation. [21] Worse, some women may be intimidated by any prospect of face-to-face dialogue with an abusive former spouse. There is a perception that family mediators are not sufficiently sensitive to systemic gender inequalities in family dynamics, and there is evidence to suggest that attitudes toward violence and intimidation are at times unsophisticated and naïve. [22]

Similar fears lie behind the resistance of some groups to the use of circles and non-custodial sentences for physical and sexual abuses carried out by men on women and children. Many women’s advocates are apprehensive about the impact of restorative justice principles on the lives of women and children. [23]

AWAN conducted focus groups with Aboriginal women in small communities in British Columbia to assess their thoughts on the value of restorative justice. Many of the women were too intimidated to speak out about violence in their communities. Many women spoke of leaving the reserve to escape violence, yet a similar code of silence was attested to in downtown east side Vancouver, where many Aboriginal people live. A similar dynamic of oppression and silencing undoubtedly exists in some non-Aboriginal communities and families as well. [24]

"It was evident in many of the accounts that women felt they had less power in their communities than men and that the system was designed to privilege and benefit males. The power imbalances within these communities are usually complex and bureaucratic. Band councils were often cited as reflecting the ways of the colonizer, with men holding power in the communities. Focus group participants expressed tremendous concern with the diversion of cases of violence against women and children because they felt that the majority of support goes to offenders along with a prevalence of victim-blaming mentalities. A lack of concern for the safety needs of women and children, particularly in isolated communities was also cited as a major concern in processes such as 'Victim–Offender Mediation'. In such situations, women must confront her abuser. This could have grave implications, in terms of psychological and physical safety, if the offender were to remain in the community."

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," research report prepared for the Law Commission of Canada, July 2001, at 27.

How can communities that reflect systemic patterns of gender-based violence be entrusted with the responsibility to confront these problems or to create an environment free from fear?

The challenge for restorative and other alternatives to adversarial justice is to transform the conditions that created the conflict in the first place. If sentencing circles, for example, simply reproduce the hierarchies of power and oppression of violent gender relations, they can rightly be criticized as no better—and for some vulnerable parties, possibly even worse—than the traditional processes they seek to replace. However, many of those most concerned about the vulnerability of disempowered groups in informal dispute resolution processes would also acknowledge the lack of success of rights-based advocacy to change underlying social attitudes toward systemic inequities. [25] Our efforts, therefore, should be directed toward providing process safeguards to ensure voluntariness, information and freedom from coercion in both restorative justice and consensus-based justice processes.

Rather than assuming that power differences and imbalances can be addressed by guarantees of sameness in treatment and procedural requirements, it is important to regard every situation in which conflict arises—whether private contractual, public order, family and domestic, governance, corporate or any other—as one already affected by unequal social and economic structures. This may be as a result of prevailing social attitudes toward a particular type of crime (for example, white-collar crime or domestic violence), the position of individuals or groups (such as well-resourced litigants, impecunious litigants, parties with strong and supportive reference groups, parties with no reference groups, and so on), and in each case, the values reflecting the current status quo, perhaps replicated in the legal system. These differences cannot be eliminated by a conflict resolution process. But recognizing them explicitly would enable the construction of just outcomes that do not assume sameness to be the equivalent to fairness. Processes and outcomes should instead respond to particular circumstances and needs.

4.2.3 Vigilantism, punitiveness and exclusivity

A related critique made consistently of restorative and consensus-based justice programs is that delegating the power to develop solutions to the communities, even to the parties themselves, assumes that these are healthy communities or people whose decision-making will be fair and balanced.

In the case of some troubled communities, this means going even further and assuming a healed community. [26] Critics question why there is an assumption that the goodwill and good sense directing these processes are necessarily preferable to a judge-directed, legally formulated outcome. For example, it is possible to imagine offenders accepting a greater degree of punishment—or at least a greater degree of public humiliation—than they might have been subject to had they entered a plea of not guilty and taken their chances at trial. It is possible to imagine a defendant in a civil law suit settling for less monetary compensation than a court might award, or even a plaintiff paying out more than a court might have ordered. Are the agreed outcomes of community panels, group conferences and mediations really “better”—in the sense of fairer and more just—than the comparable decisions of a court? One author chillingly points out that “society’s response can be even more terrifying than crime itself,” pointing to the rise in gun sales and vigilantism that followed the Los Angeles riots of 1992. [27]

If a perception of harm to the community is the trigger for intervention in a restorative model, there is also a fear that the community might take this intervention into inappropriate areas, such as those of personal privacy and family life. If such interventions are also legitimized and buttressed by the authority of the state, the danger of net-widening becomes a very real threat. [28] Again the issue is: Who decides when and what type of community intervention is

"Restorative justice envisions the community taking significant responsibility for conducting programs. The creation of new positions of authority creates concern about the participation of diverse community members and how their views will be included. The dynamics of communities involve relationships of power ... [W]e cannot assume that communities are healthy and safe, or are concerned with creating an equitable status for all their residents."

Provincial Association Against Family Violence, Making It Safe: Women, Restorative Justice and Alternative Dispute Resolution (St John's, Nfld. and Lab.: Provincial Association Against Family Violence, 2000) at 12.

necessary? And how willing are we to offer this responsibility to communities, with all their flaws?

The notion of communitarianism implicit in restorative justice is generally understood as a means of extending and entrenching community control. However, a traditional conception of communi­tarianism is essentially a unifying strategy that inevitably separates “insiders” (who buy in) and “outsiders” (who are alienated from the community or who are simply less comfortable with collective solidarity). This raises fears about the potential for the community— or powerful individuals within the community—to act oppressively toward outsiders or those less powerful than themselves. How practically able are homogeneous communities to tolerate and include views highly divergent from their own? How hospitable will communities be toward outsiders?

Even those who argue that community stewardship can be supported and grown acknowledge that there should be controls and safeguards on decision-making by communities. These controls and safeguards can be ensured by a relevant state with a responsive regulatory framework, and constitutional limits on the discretion of community decision-making. [29] This relationship will be discussed further in Chapter 8, where the regulatory role of the state in relation to restorative justice and consensus-based justice will be explored in further detail.

4.2.4 Co-optation

A quite different concern—and sometimes criticism—of restorative and consensus-based justice practices is that their original innovative vision could be corrupted through integration into institutional and bureaucratic structures. This is a quite different kind of critique because it presupposes that restorative and consensus-based justice models are worth preserving in their pure form.

There is a real tension between the need for new forms of dispute resolution to be related to the formal justice system (thereby achieving legitimacy) [30] and the need to be independent from it (thereby ensuring that its original principles do not become diluted). Some of those who advocate either restorative justice or consensus-based justice do so with a vision that it will ultimately replace the formal justice system, not simply modify or supplement it with new alternative processes. However, as long as the formal justice system exists, restorative and consensus-based justice programs can only function entirely independently of it if they limit their interventions to conflicts at an early stage (for example, before pleadings are issued or before charges are laid) or to conflicts outside the context of legal claims. While some researchers’ data suggest that formal litigation accounts for only a very small proportion of all dispute resolution processing, [31] drawing these disputes into a community-based dispute resolution program is far from easy. [32]

Therefore, a balance must be struck between the need to coordinate the efforts and preserve the flexibility and creativity of the different processes. We come back to this difficult equilibrium in Chapter 7.

Restorative justice and consensus-based justice attract very similar critiques. Both face comparable challenges in ensuring that the benefits of community-based, informal dispute resolution processes do not produce greater unfairness and inequities than the traditional justice systems they seek to substitute or supplement. Any integrated model must operate with a strong awareness of the critiques that concern those who might otherwise be supportive of alternatives to adversarial justice.

1. The Law Commission addresses the normative question of what a crime is in its discussion paper Law Commission of Canada, What is a Crime? Challenges and Alternatives, (Ottawa: Law Commission of Canada, 2003).

2. Even where one might feel that no real harm is being caused by a single individual act, traditional deterrence theory has argued that nonetheless standards need to be maintained for the greater good of the community. Retributive theories of justice also see criminal acts as harms that extend beyond the individual to the whole community, and the justification for assigning and ceding to punishment as laying in the notional “social contract” to which citizens subscribe. J.J. Llewellyn and R. Howse, Restorative Justice: A Conceptual Framework (Ottawa: Law Commission of Canada, 1999) at 33.

3. Llewellyn and Howse describe this in terms of a focus on individual guilt. Ibid. at 34–35.

4. Ibid. at 28.

5. D. Sullivan and L. Tifft, “The Negotiated and Economic Dimensions of Restorative Justice” (1998) 22:1 Humanity and Society 38 at 40.

6. See, for example, H. Zehr, Changing Lenses: A New Focus for Crime and Justice (Waterloo: Harold Press, 1990) at 52–57, 203–204; see especially R. Quinney, “The Way of Peace: On Crime, Suffering and Service” and H. Pepinsky, “Peacemaking in Criminology and Criminal Justice” in H. Pepinsky and R. Quinney, eds., Criminology as Peacemaking (Bloomington: Indiana University Press, 1991).

7. E. Waldman, “Identifying the Role of Social Norms in Mediation: A Multiple Model Approach” (1997) 48 Hastings Law Journal 703.

8. This is Bush and Folger’s “transformation story,” which suggests higher ends and goals for collaborative processes than the resolution of a particular lawsuit. R.A. Bush and J.P. Folger, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (San Francisco: Jossey-Bass, 1994) especially 20–22.

9. In non-criminal matters, where it is easy to see many conflicts as being less about values and principles and more about resource allocation, this is even more clearly the case. See V. Aubert, “Competition and Dissensus: Two Types of Conflict and Conflict Resolution” (1963) 7 Journal of Conflict Resolution 26.

10. B. Mayer, The Dynamics of Conflict Resolution (San Francisco: Jossey-Bass, 2000) at 98–108.

11. The analogy of “theft” most memorably developed by Nils Christie in relation to criminal matters. See N. Christie, “Conflicts as Property” (1977) 17:1 British Journal of Criminology 1.

12. Quebec, for example, has certified five professional organizations which may designate mediators for the purpose of Family Mediation. Code of Civil Procedure, R.S.Q. 2001, c. C-25, r. 2.1 (Regulation Respecting Family Mediation).

13. Correction Services Canada provides an extensive list of restorative justice and mediation training programs from accredited universities and government justice departments. Very few are from grass-roots or non-profit organizations: “Canadian Resource Guide to Restorative Justice and Conflict Resolution Education Programs”, online: http://www.csc-scc.gc.ca/text/prgrm/ rjust_e.shtml (date accessed: 17 September 2003).

14. See, for example, R. Delgado, C. Dunn, P. Brown, H. Lee and D. Hubbert, “Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution” (1985) 6 Wisconsin Law Review 1359, especially 1387–1389; P. Bryan, “Killing Us Softly: Divorce Mediation and the Politics of Power” (1992) 40 Buffalo Law Review 441; L. Lerman, “Mediation of Wife Abuse Cases: The Disadvantageous Impact of Informal Dispute Resolution on Women” (1984) 7 Harvard Women’s Law Journal 57; and see, generally, R. Abel, The Politics of Informal Justice: The American Experience (New York: Academic Press, 1982).

15. See the findings of 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).

16. See, for example, T. Grillo, “The Mediation Alternative: Process Dangers for Women” (1991) 100:6 Yale Law Journal 1545 especially 1590–1593.

17. Section 24 of the Canadian Charter of Rights and Freedoms excludes any evidence obtained in violation of Charter rights. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, (U.K.), 1982, c. 11.

18. Section 277 of the Criminal Code (which, unlike s. 276, survived the challenge of Seaboyer) excludes any evidence being admitted in a rape trial that discloses the previous sexual history of the complainant if its purpose is to challenge the credibility of the complainant. See P. Kobly, “Rape Shield Legislation: Relevance, Preference and Judicial Discretion” (1992) 30 Alberta Law Review 988.

19. Kent Roach addresses the power imbalance between men and women and notes that feminist opposition to restorative justice could discredit it as a meaningful and non-discriminatory response to serious crimes. K. Roach, “Changing Punishment at the Turn of the Century: Restorative Justice on the Rise” (2000) 42:3 Canadian Journal of Criminology 249 at 273.

20. For two powerful critiques from a feminist perspective, see M. Bailey, “Unpacking the ‘Rational Alternative’: A Critical Review of Family Mediation Movement Claims” (1989) 8 Canadian Journal of Family Law 61; and J. Rifkin, “Mediation from a Feminist Perspective: Promise and Problems” (1994) 2 Law and Inequality 21.

21. Grillo, supra note 16 at 1545.

22. This issue is analyzed and discussed 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. See also the results of a recent Halifax study: Transition House Association of Nova Scotia (THANS). Abused Women in Family Mediation: A Nova Scotia Snapshot. A Report Prepared by The Transition House Association of Nova Scotia (Halifax: THANS, 2000), online: http://www.nicr.ca.

23. W. Stewart, A. Huntley and F. Blaney, supra note 15.

24. On victim-blaming, see also J. Braithwaite and D. Roche, “Responsibility and Restorative Justice” in G. Bazemore and M. Schiff, eds., Restorative Community Justice: Repairing Harm and Transforming Communities (Cincinnati: Anderson Publishing Co., 2001) at 74.

25. See, for example, the analysis in D. Bell, Faces at the Bottom of the Well: The Permanence of Racism (Basic Books, 1993); and R. Delgado, “Conflict as Pathology: An Essay for Trina Grillo” (1997) 81 Minnesota Law Review 1391.

26. W. Stewart, A. Huntley, and F. Blaney, supra note 15 at 28.

27. R. Abel, “Contested Communities” 22(1) Journal of Law and Society (1995) 113 at 118.

28. Roach, supra note 19 at 259-262.

29. J. Braithwaite, and D. Roche, “Responsibility and Restorative Justice” in G. Bazemore and M. Schiff, eds., Restorative Community Justice: Repairing Harm and Transforming Communities (Cincinnati: Anderson Publishing Co., 2001) at 69.

30. See, for example, N. Rockhill, Building the Caseload: Report from the Conflict Resolution Service (Toronto: Fund for Dispute Resolution, 1993), (pointing out that formal alliance with agencies and justice systems enabled St. Stephen’s Community Mediation Service to develop a healthy caseload); and 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) at 8, (noting that community-based services struggle for legitimacy and cases, arguing that “the best way to organize a mediation centre which relies on police referrals is to establish it within the police department”).

31. For example, the Civil Litigation Research Project, using a survey of 5,000 households, found that only just over 11 percent of the disputes that respondents identified were processed using litigation in the court. See D.M.

Trubek, A. Sarat, W. Felstiner, H.M. Kritzer and J.B. Grossman, “The Costs of Ordinary Litigation” (1983) 31 UCLA Law Review 72, 85–87; see also R. Miller and A. Sarat, “Grievances, Claims and Disputes: Assessing the Adversary Culture” (1980-81) 15 Law and Society Review 525 at 566.

32. S. Merry and S. Silbey, “What do Plaintiffs Want? Re-examining the Concept of Dispute” (1984) 9:2 The Justice System Journal 151.