A central premise of the models of dispute resolution set out in earlier chapters is that every conflict—its circumstances, its players, its impact-is unique. Participatory processes, unlike the traditional adversarial processes, do not strive for a uniform set of rules and principles with which to achieve, consistency and certainty (in any case, more of a theoretical goal than a realizable objective for formal justice systems). While we have distilled some of the common values and principles of both approaches, it would run counter to their core assumptions to regard these as universally applicable to all types and contexts of dispute. This chapter considers the relationship between the characteristics of any one conflict or set of conflicts—the issues, the affected relationships, the community within which the conflict arises—and the appropriateness of new approaches to conflict resolution. Are some conflicts ever suitable for a restorative or consensus-based justice approach? [1]

Research has not yet established a convincing correlation between case type—the area of law in which the conflict falls, the character of the disputants, the issues at stake, and so on—and successful resolution using consensus-building approaches. [2] However, it is useful to identify those dispute characteristics that suggest that an informal, consensual approach might be inadequate to ensure that fairness is achieved or that the goal of transforming relationships is achieved.

5.1 DIFFERENT TYPES OF CONFLICTS

Criminal and non-criminal matters raise similar concerns about the appropriateness of dialogue and consensus-building processes, but these are often expressed somewhat differently. A first set of issues relates to the personal safety of victims and, more generally, the less powerful parties in a conflict. Circles, Victim–Offender Mediation, family mediation in which there is a history of domestic violence, or any civil mediation in which one party appears likely and capable of intimidating the other, raise concerns about the vulnerability of weaker parties and the impact on the authenticity and constructiveness of the process. [3] There is a special concern about processes that are mandatory (for example, mandatory court-connected mediation) or implicitly coercive (involving pressure on victims to agree to a restorative process). [4]

Program evaluation data tend to be predominantly quantitative, providing statistics for numbers of cases (often grouped according to dispute type) that have been settled. There are a number of methodological problems with such comparisons. Numeric data on outcomes generally do not examine variables such as whether the parties chose this process voluntarily and without pressure, how the parties felt about their role in the dialogue, and whether their particular needs and interests were met by the outcome. Apparently higher numbers of resolutions in any one case-type category can often be explained by contextual factors. For example, the Ontario Pilot Evaluation found that a higher number of wrongful dismissal cases were settled in mediation than other case types. It was hypothesized that the explanation for this was that a higher percentage of wrongful dismissal cases were mandated to mediation and, that as a consequence, the wrongful dismissal attorneys had become skilled at dealing with cases in mediation, as well as that the legal issues involved in wrongful dismissal cases were fairly well settled and the contentious issue was limited to determining the award. The aspiration of proponents of these new methods of conflict resolution is to provide respectful processes for developing fair and accepted outcomes. Quantitative program evaluation data on formal outcomes tell only part of this story.

A second but closely related set of concerns arises in relation to the health and tolerance of the communities within which disputes arise, especially if those communities will play a crucial role in the development and implementation of outcome agreements, whether as mediators, as circle participants, or perhaps as members of a community panel.

Another set of critical questions arises in relation to the potential for the abuse of a consensual process by parties who do not act in good faith or in the spirit of the process, or who may denigrate the integrity of the process and its credibility in the eyes of a significant community.

Finally, some would argue that some conflicts are simply too serious, too complex, or perhaps too socially repugnant to be dealt with in private processes. Instead, these types of conflicts require pubic adjudication and the application of formal rules to ensure fairness in outcomes. In the criminal arena, this argument has focused on the severity of crimes that should be dealt with in restorative processes. Programs limited to minor offences and perhaps first-time offenders tend to win public acceptance more easily than those that tackle more serious crimes. In the civil context, a parallel debate often centres on the need for adjudication if other individuals are actually or potentially affected. Each of these issues will be dealt with below.

5.1.1 Personal safety and the ability to bargain free from fear

The most obvious group of disputes in which informal consensual processes may be deemed inappropriate are those in which there is no possibility of equal dialogue, either because of the level of intimidation and fear in the relationship between the parties or because the history of the relationship indicates that equal bargaining is impossible. Where these factors are present, the more vulnerable party is unlikely to be a willing participant in the process. Even if the more vulnerable party is willing to be present, it may be that this person will be unable to speak freely during the dialogue. [5] The dialogue that participatory processes aim to encourage and support may be missing entirely or dominated by one party only. Victims’ groups have expressed great concern over the use of mediation or circles under such circumstances. [6] This concern is further heightened by a perception that many mediators are inadequately trained and unprepared to anticipate and manage issues of domestic violence. [7]

The unique nature of every conflict and the relationships involved in the conflicts mean, however, that it is important not to exclude all disputes with these variables. Indeed, mediation has been used with careful safeguards in some cases of domestic and other sexual violence with positive results. In addition, a circle setting where there is no pressure on the victims can offer them an opportunity to address their abusers in a safe environment where it can be an empowering experience. [8]

Rather than excluding all cases in which there has been violence or intimidation from the possibility of restorative or consensus-based justice processes, a better approach is to emphasize voluntariness, which requires the adequate provision of information and counselling to ensure that all dimensions of a decision to proceed are understood.

Some programs apply careful screening questions at the intake stage in an effort to identify disputes in which fear and especially fear of violence may exist. [9] For example, the Collaborative Justice Project in Ottawa spends much time working separately with victims and offenders to prepare each for a face-to-face meeting. Even after a long period of preparation, some victims and offenders choose not to meet directly. Clearly, where there is fear of coercion, pressure or intimidation, exiting from a participatory justice process must be straightforward and easy for the fearful party. [10]

In addition, even when an individual genuinely volunteers to participate in a process, it is incumbent on a trained mediator to assess the situation independently and, ultimately, make a decision about whether to proceed with a dialogue. Some offenders may volunteer for a dialogue for purely strategic reasons. In these instances, a face-to-face dialogue may not be the most effective restorative justice process to use.

We will return to the question of intake practices, including case screening, in Chapter 6.

5.1.2 The need for healthy and tolerant communities

To meet the goals of participatory processes, it is critical that the community that is asked to take ownership of both the conflict and its solution is itself healthy, respectful of diversity and committed to finding fair and meaningful outcomes to conflicts. Are these processes appropriate if the community has a history of oppression or intolerance? [11] We identify and differentiate between certain groups of victims and offenders who are regarded with more or less social approbation. Communities create hierarchies of crime and approbation. [12] This may be especially marked in some communities where hierarchical relationships between men and women, leaders and followers, and adults and children have resulted in a level of tolerance and acceptance of certain types of crime and conflict inherently oppressive to the victims. It is essential that communities can both offer safety to those confronting victimizing behaviour and ensure that the victim is not placed under any (explicit or tacit) pressure to participate in a dialogue when they are feeling fearful or disempowered.

At the same time, the dialogue and openness offered by restorative and consensus-based justice processes may offer a unique means for a troubled community to heal itself. An example is the use of circles to address long-standing and widespread sexual abuse among members of a Manitoba Aboriginal community. The Community Holistic Circle Healing (CHCH) process began as an effort by an interdisciplinary community team to better understand and address the systemic problems of a small Aboriginal community. The discovery of widespread sexual abuse within the community led to the development of a healing process to uncover and address the harms perpetuated by child sex abuse. [13] By an agreement with the Manitoba Department of Justice and the federal Aboriginal Justice Directorate, Hollow Water established a structure for referral of all sexual abuse charges brought against Hollow Water community members to a community circle program.

This procedure permitted the development of a series of steps— involving the victim, the victimizer, and friends and family—leading to the eventual determination of a three-year plan for the rehabilitation of the offender and protection of the victim (in effect, a three-year probation order with the CHCH acting as the supervisory body). The evaluation of the Hollow Water program in 1996 noted that “there is no doubt that CHCH is making advances in creating a safer community.” [14] In the extensive data collected from program workers, victims and their families and victimizers, there is no challenge to the idea that even such a serious matter as child sex abuse can be dealt with responsibly in this forum, providing that adequate safeguards (in particular the proper monitoring of the “probation” period) are ensured. There is clear acceptance within the community that despite a history of denial and a painful and continuing process of disclosure and confrontation, the only way forward for this community is dialogue, forgiveness and eventually healing.

"[F]orgiveness is the hardest thing for people to do for people, but it is the natural way to healing. As long as you have anger, it will make you sicker and sicker."—Hollow Water resident

T. Lajeunesse, Evaluation of Community Holistic Circle Healing: Hollow
Water First Nation. Volume 1: Final Report
(T. Lajeunesse, and Associates, 1996) at 75.

5.1.3 Process abuse

There is a fear—which may grow with the potential seriousness of the offence or complaint—that offenders can abuse restorative and consensus-based justice processes by presenting themselves as remorseful, simply to reduce the severity of their punishment. This fear can be countered by evidence that many offenders find a circle or mediation process far more painful and personally demanding than a court appearance. [15] Nonetheless, this concern persists and underscores the importance of having trained mediators who are able to utilize their judgment when determining the desirability of a meeting between a victim and an offender.

In civil matters, there is ample evidence of the strategic use of negotiation and mediation by lawyers who sometimes choose to use these processes to gather information rather than as good faith

Restorative justice is not a soft option. Many offenders find it hard to face the real impact of their crime. For victims, restorative justice may not be about forgiveness, but a desire to tell the offender how the crime has affected them and their family, or getting information that only the offender can give.

D. Blunkett, "Foreword from the Home Secretary" in Restorative Justice: The Government's Strategy, (London: The Home Office, 2003) at 5.

opportunities for bargaining and possible settlement. Research on the attitudes of litigators using mandatory mediation in Toronto and Ottawa confirms this. The “instrumentalist” [16] regards mediation and mediators as a process or a tool to be captured and used to advance the clients’ mostly unchanged adversarial goals. Mediation is regarded as a procedural tool to be efficiently utilized or, alternatively, avoided or neutralized (by showing up but not engaging). Another commonly described strategy for process abuse is to use mediation as a delaying tactic.

The response of some American jurisdictions has been to legislate a requirement of good faith of participants in civil mediation, [17] although there is continuing debate about the effectiveness of such requirements. [18] This approach has not found favour in Canada. A better approach may be to seek to change the climate of credibility and legitimacy of consensual processes so that good faith—at least in the sense of regarding informal processes as important opportunities to constructively advance resolution—will follow. In such a climate bad faith is internally censored and disapproved of, and good faith becomes the norm. [19] Government has an important role to play in advancing the public credibility and acceptance of these processes. This will be discussed further in Chapter 8.

5.1.4 Repugnant acts

Are all types of disputes amenable to participatory justice processes? Some argue that very serious infractions of community norms and values should be excluded from restorative justice processes.

Some restorative justice processes only accept offenders who have committed minor criminal offences or first-time offenders, or they tend to focus on young offenders. [20] Other models have provoked considerable debate over whether there should be limits on the types of criminal offences that are eligible for a restorative justice program. In New Zealand, for example, all offences committed by juveniles, excepting only murder and manslaughter, must lead to a family group conference, which the victim is entitled to attend and which occurs before the court proceeds to deal with the case. The conference is an opportunity to discuss the needs of the young people and their families and to develop plans that will provide access to funds for services and programs intended to achieve these goals. [2]

The Fraser Region Community Justice Initiatives program in British Columbia has for some time been working with more serious offenders. [22] There are also examples of projects that deal with serious sexual abuse, such as Hollow Water. The Collaborative Justice Project provides another example of a program that has explicitly identified more serious crimes as its focus. The Collaborative Justice Project is not a diversion project; rather, a formal guilty plea is entered and the offender will ultimately be sentenced by a judge who may—or may not—accept the recommendations of a restorative process (for example, a circle or VOM). Moreover, along with making reparations to the victim, offenders can receive the full range of legal punishments, including a period of incarceration. It may be easier to make the argument for extending the range of offences for which restorative alternatives are available if these cases remain within the formal justice system—and offenders receive a criminal record, whatever the outcome.

It is important to recognize, however, that “a serious offence does not necessarily mean a serious offender.” [23] Results from an evaluation of the Collaborative Justice Program showed that while a majority of offenders who participated in the project had committed a serious offence, 51 percent of the offenders were first-time offenders, and the evaluation indicated that the majority of offenders were offenders with a low likelihood of re-offending.

"Unique in its focus on serious criminal behaviour, the Collaborative Justice Project (CJP) deals with adult and youth cases of robbery, robbery with a weapon, weapons offences, break and enter, theft over $5000, fraud, assault, assault causing bodily harm, impaired driving causing bodily harm or death, and careless driving or dangerous driving causing bodily harm or death ... Cases are accepted when all three criteria are present:

• the crime is serious and the Crown is seeking a period of custody;

• the accused person displays remorse, is willing to take responsibility for and work to repair the harm done;

• there is an identifiable victim who is interested in participating."

Year End Report on the Collaborative Justice Project, March 31, 2002, online: http://www.ccjc.ca.

5.1.5 Disputes involving the public interest

Arguments similar to those made in relation to serious crimes are often made over the importance of requiring strict public accounting of those whose civil actions have caused harm to a wide group of people, for example, environmental disputes, or whose behaviour challenged a fundamental value of our society, such as a Canadian Charter of Rights violation. Should some types of conflict—for example, disputes raising Charter or other human rights issues—be declared to be in the public domain and excluded from the realm of private settlement?

The principle of self-determination that lies at the heart of participatory processes implies that if the parties prefer a private consensus-building strategy to public adjudication, they must be allowed to make this choice. It would be unfair to deny litigants the benefit of a participatory process because their claim involves a human rights argument. In fact, in many human rights cases, a

Mediation has enormous potential to resolve most complaints of discrimination.(…) [I] n the majority of cases, mediation offers a non-adversarial context in which the parties can get beyond positions of right and wrong and address the needs and interests that are key to finding a solution. Mediation is a more humane approach: it promotes understanding between the parties and has the power to heal, something of particular value where the relationship between the parties is ongoing.

M. Gusella, Chief Commissioner, Canadian Human Rights Commission, "New Approaches to the Protection of Human Rights" speech delivered at the Canadian Association of Statutory Human Rights Agencies 25–28 May 2003, Winnipeg, online: http://www.chrc­ccdp.ca/Legis&Poli;/CASHRASpeech_DiscoursACCCDP.asp?l=e.

participatory process may allow the victims to articulate a better remedy that fulfills their need and respects their dignity.

As discussed earlier, there may be cases in which the imbalance of power between the parties is such that a participatory process may not be adequate. At other times, the parties themselves may wish for a public adjudication to contribute to changes in the law. Possible still is the disclosure of the terms and results of the participatory process to respond to a need for public transparency and accountability. In Chapter 7, we give examples of processes that have been developed to balance the need for public scrutiny and the ability of parties to come to an understanding that satisfy them.

5.2 PARTICIPATORY JUSTICE IN DIVERSE COMMUNITIES

Some people have argued that participatory justice models are best suited to closely knit, non-urban communities with some of the characteristics of a traditional community. They argue that participatory justice models premised on meaningful interaction between individuals cannot be sustained in urban areas where individuals are socially disconnected from one another. Section 5.2 will examine the possibility of participatory justice in diverse communities.

5.2.1 Aboriginal communities

Principles and values of participatory processes often seem to better reflect the cultural mores of Aboriginal communities. For example, the acceptance of collective responsibility for conflict within the community—counterintuitive for an individualistic Western model of disputing—appears closer to how many Aboriginal communities approach conflict. In many Aboriginal teachings there is no distinction between the pain or the disgrace of one individual and the harm caused to the whole community. [24] In addition, dialogue processes emphasizing consensus-building through participation are the cultural heritage of Aboriginal communities, despite the huge changes that contact with Western culture has wrought in their traditional way of life. The model of “circles” derives from Aboriginal practices in many parts of the world. [25] Therefore, there is familiarity with dialogue as a means of resolving conflict, although it is important to note that Western legal culture has made significant inroads into this tradition. [26]

In addition, there is a strong desire in many Aboriginal communities—a desire that is widely recognized by the Department of Indian and Northern Affairs—to bring justice and decision-making back to their local roots and traditions.

An impressive number of successful restorative justice initiatives have taken root in Aboriginal communities. These include the original circle sentencing projects in the Yukon, pioneered by Judge Barry Stuart, clarified in his landmark judgment in R. v. Moses, [27] and now established in Aboriginal communities in the Yukon. The circle is used with criminal cases of chronic offenders. Separate healing circles are held for the victim and the offender. Accountability is a strong component of the latter. The sentencing circle includes the judge, prosecutor, defence lawyer, victim, offender, their supporters and any other community members who want to attend. The members of the circle participate as equals in determining the sentence. The process may last for several weeks. Similar initiatives are now in place across Canada, particularly in western Canada. In addition, circles operate in urban environments, for example, Aboriginal Legal Services of Toronto operates a Community Council

Dogrib Law Before Contact with Europeans

"[T]raditionally, social control was enforced by adult members of the society in order to maintain harmony among people, the animals, the spirits. Dogrib laws existed and were taught carefully so all members of the group knew them and understood the consequences if they breached them. Minor offences were dealt with by ridicule, more serious ones by shaming and the most serious ones by banishment. Camp leaders dealt with minor and some medium offences. If the offender were not compliant with the conditions for reparation set down by the camp leader, then all adults in camp were involved in resolving the matter through the circle process. Shaming and shunning were used as mechanisms to bring the offender back into line and reparation and reconciliation followed when the consequences had been met. If the crime were truly serious, then all the camps moved to a gathering place where the senior male leader facilitated a circle in which all adults participated and came to consensus as to what might be an appropriate remedy if there was one. If there wasn't a remedy, then the offender was banished."

J. Ryan and B. Calliou, "Aboriginal Restorative Justice Alternatives: Two Case Studies," paper prepared for the Law Commission of Canada, January 2002, at 23-24.

Program, and the Vancouver Aboriginal Friendship Centre Society runs the Vancouver Aboriginal Restorative Justice Program.

5.2.2 Non-Aboriginal communities, including metropolitan settings

Some argue that participatory processes can only work in small, homogeneous communities. For example, the successful Farm Mediation Program in Saskatchewan in the 1980s and 1990s reflected the central importance of farming to the economy and the values shared among both farmers and financial institutions in maintaining

Vancouver Aboriginal Restorative Justice Program

"On the evening of April 27^th [2000], the Vancouver Aboriginal Restorative Justice Program (VARJP) held its first ever Community Council forum. Three Community Council members, an Elder, the offender and two of his family members, joined in a circle with VARJP Coordinator, Christine Smith-Parnell, to discuss the offence and the underlying causes of the behaviour which led to it.

The victims, employees of a Canadian corporation, while not in attendance, provided information during a pre-forum interview that was shared by letter during the actual forum. This information was of great assistance in helping the offender to understand the consequences of his actions. It also aided the Council members who were challenged with the task of coming up with a healing-focused plan that addressed both the offender's and victim's needs.

Feedback from forum participants was extremely positive. The offender stated that he was very grateful to have an opportunity to deal with the matter within the Aboriginal community and away from the court system. He was particu­larly happy about the presence of two Council participants who shared the same First Nations background as [he]. The family members who accompanied the offender for support were very excited to see him take responsibility for his wrongdoing and move towards addressing his negative behaviour.

When contacted with the results of the forum, the victims also expressed satisfaction. They were pleased that the offender came to understand that the victim was not just a corporation, but also a group of people who work within it. In addition, they appreciated that the offender was going to take steps toward improving himself. Overall, with the help of the Community Council, the terms "victim" and "offender" appeared to fade away as both parties began to see each other as human beings who, like all people, are deserving of respect and understanding. "

For more information visit the Vancouver Aboriginal Friendship Centre Society's website: http://www.vafcs.org.

a strong agricultural base. Interestingly, there is also plenty of evidence of successful initiatives in much larger and more diverse metropolitan settings (for example, the Ottawa Collaborative Justice Project; neighbourhood mediation projects such as St. Stephen’s Community Resolution Centre and Downsview Community Mediation Services, both in Toronto). Perhaps the key concept is the existence of a “community of care” with shared needs and interests, which creates community ties and a sense of motivation to resolve difficulties locally and to apply local knowledge. Such a community might be a group of homeowners in a gated community who are concerned about crime, a loose association of small business owners trying to protect themselves against larger business, or a residents’ group lobbying for environmental cleanup in their neighbourhood. Such groups are increasingly recognized by sociologists as “a key organizing principle of contemporary life.” [28]

Susan Merry has noted that communities that include pre-existing organizations, professional groups and institutions are more likely to embrace community-based dispute resolution models—what she describes as “those pockets of [American] society which retain the social characteristics of urban villages,” where community mediation pro-grams can build on existing “patterns of informal social control.” [29] Such programs are often organized around a strong volunteer core. For exam­ple, the Mennonite community took the lead in establishing the first Canadian victim–offender projects in Kitchener–Waterloo; Winnipeg Mediation Services was built on an originally Mennonite volunteer base; and the Church Council of Canada now plays a major role in a variety of projects, including the Ottawa Collaborative Justice Project.

Threshold Requirements for a Participatory Justice Process

• Community motivation to address conflict in a way that will serve individuals and the community better than conventional justice processes

• Local champions within the community

• The support of key players, particularly for referrals (courts, Crown, municipality, police, community organizations, schools)

• A group of core individuals who will work directly to build the program (this must include at least a few able practitioners with relevant training and experience)

• The potential for building a stable group of volunteers

• Access to conflict resolution training

5.2.3 Enhancing the capacity of communities to provide participatory processes

It is much more difficult to build credible and sustainable justice projects where the community lacks some unifying characteristics. For example, communities with high levels of transition—people moving in and out—are also those where collective spirit is harder to develop and maintain. The resources needed to organize, including a core group of highly motivated individuals, may be lacking or may not be long lasting. The creation of a stable volunteer group may be difficult or even impossible under such circumstances. Moreover, a large group of volunteers is essential for avoiding “volunteer burnout” syndrome, which affects many community justice projects.

For planning the development of a justice project in the form of a community mediation service, a VOM program, a program of healing circles, or a community panel process, the following resources appear to be threshold requirements. [30]

5.3 SOME CONCLUSIONS

Three conclusions emerge with some clarity from our discussion. One is that restorative justice and consensus-based justice appear most suitable for disputes where each party participates voluntarily and has sufficient capacity to engage fully in a process of dialogue and negotiation. Perhaps most importantly, process design must reflect local conditions and individual circumstances. For example, face-to-face dialogue may not be appropriate in every case. Instead, separate caucuses may be more appropriate. Whereas in restorative justice processes, victims and offenders may require time to deal with the aftermath of the crime, and many victims and offenders may not wish to enter into a dialogue. In some communities, there may be a need to constrain or monitor in some way the outcomes of community decision-making, to ensure that intolerance and vigilantism do not surface. The need for justice processes to be flexible and responsive to the unique conditions of each conflict is discussed further in Chapter 7 as a key design principle.

But while participatory processes are not universally applicable to all types of conflicts, experience suggests that a dialogue-based, consensus-seeking approach may be an appropriate tool in a wide range of conflict settings (wider than currently used). Despite fears about intimidation and coercion in disputes involving family violence, offering mediation as an option for separating or divorcing spouses can sometimes give a historically disempowered partner an opportunity to find a voice and control the outcome of a marriage dissolution in a way that traditional litigation cannot. Similarly, where the victims of violent crimes have chosen to participate in restorative justice processes they often describe relief and a renewed sense of control over their lives when the process is complete. [31]

There are examples of criminal justice projects in which communities have confronted collective demons and emerged stronger and healthier as a consequence. Even sceptical litigators have come to embrace court-connected mediation in cities where a culture of legitimacy has begun to develop around the use of mediation— marked in part by a generalized rejection of more instrumental and abusive uses of the mediation process to advance purely adversarial goals. Sometimes, under the most unlikely circumstances, restorative, consensus-based justice has the greatest impact because of its potential to transform people, relationships and local culture.

Asking whether some disputes and dispute settings are appropriate for participatory processes is highly relevant to the question of where government should target resources to initiate and support such programs. But appropriateness is not the sole consideration. Government must balance concerns over the suitability of some matters for consensual dispute resolution processes with other important reasons to invest in the innovative enhancement of settlement processes in a particular area of disputing (wrongful dismissal claims, insurance claims, minor assault charges), particular communities (Aboriginal communities, isolated rural communities), or particular groups of disputants (neighbours, family members, young offenders). Government might wish to target one of these areas because of a dismal record of satisfaction or a history of largely unsuccessful outcomes within the traditional justice model (for example, the inability of the justice system to change behaviours in terms of compliance or recidivism). Even where there are characteristics within a target group that raise concerns about the suitability of participatory processes, government may still wish to proceed with new programs but rely on enhanced regulatory measures for monitoring funded programs. The issue of government oversight is the subject of further discussion in Chapter 8.

1. Answering this question raises further questions about voluntariness and compulsion in transformative processes. While this discussion cannot be detached from consideration of which disputes should be encouraged to use transformative processes, the question of voluntariness will be considered in more detail in Chapter 7 in relation to process design.

2. See, for example, 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 especially 95–97.

3. For example, see the results from focus groups convened by the John Howard Society of Manitoba to determine the suitability of a family group decision-making program in Winnipeg, Manitoba: L. Maloney and G. Reddoch, Restorative Justice and Family Violence: A Community-based Effort to Move from Theory to Practice (prepared for delivery at the 6^th International Conference on Restorative Justice, Simon Fraser University, Vancouver, B.C., June 2003).

4. See the further discussion in relation to the principle of voluntariness in Chapter 7.

5. T. Grillo, “The Mediation Alternative: Process Dangers for Women” (1991) 100:6 Yale Law Journal 1545.

6. See, for example Provincial Association Against Family Violence, Making It Safe: Women, Restorative Justice and Alternative Dispute Resolution (St John’s: Provincial Association Against Family Violence, 2000); 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).

7. For a highly critical report, see: 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).

8. For the use of mediation in sexual abuse cases, see F. Titley and T. Dunn, “Mediating Sexual Abuse Cases” (1998) 10:1 Interaction 6; and for the use of mediation in domestic abuse cases, see D. Ellis, Evaluation of the Hamilton Family Court Pilot Mediation Project (Hamilton: Ellis and Associates, 1994).

9. For a number of examples, see the survey in J. Pearson, “Mediating When Domestic Violence Is a Factor: Policies and Practices in Court-based Divorce Mediation Programs” (1997) 14:4 Mediation Quarterly 319. This article also highlights the many different forms that domestic violence takes and the lack of alternative processes for women who are victims of spousal abuse.

10. In contrast, see the decision in G.O. v. C.D. H., [2000] O.J. No. 1882, where there was a presumption that mediation should be used, despite the objections of the fearful party.

11. See the discussion regarding the challenges faced by some Aboriginal communities in W. Stewart, A. Huntley and F. Blaney, supra note 6.

12. See the analysis in D. Sullivan and L. Tifft, “The Transformative and Economic Dimensions of Restorative Justice” (1998) 22:1 Humanity and Society 38.

13. It is important to note that the Hollow Water community was facing other very significant challenges, including high unemployment, inadequate housing and widespread substance abuse. See T. Lajeunesse, Evaluation of Community Holistic Circle Healing: Hollow Water First Nation. Volume 1: Final Report (Ottawa: Solicitor General of Canada, 1996) at chapter 3.

14. Ibid. at 238. See also R. Ross, Returning to the Teachings (Toronto: Penguin, 1996) especially chapter 2.

15. For example, Yves Tessier, an offender who appeared on the Law Commission of Canada’s video on restorative justice, said that having to meet with his victim’s family was much more difficult than serving time in prison. See Law Commission of Canada, Communities and the Challenge of Conflict: Perspectives on Restorative Justice (video) 2000.

16. J. Macfarlane, “Culture Change? A Tale of Two Cities and Mandatory Court-connected Mediation” (2002) 2002:2 Journal of Dispute Resolution 241 at 256–257.

17. See, for example, the extensive review in J. Lande, “Using Dispute Systems Design Methods to Promote Good Faith in Court-connected Mediation Programs” (2002) 50:1 UCLA Law Review 69 at 78–85.

18. Lande, ibid. at 86-107.

19. For example, the Bar in Ottawa has apparently embraced mediation in civil cases to the extent that it is now counter-culture to use the process for instrumental reasons only. Ottawa lawyers complain that they experience process abuse only when they mediate opposite a Toronto litigator, where the culture still supports bad faith and process abuse. See Macfarlane, supra note 16 at 300–301 and 315–316.

20. M.S. Umbreit, Victim Meets Offender: The Impact of Restorative Justice and Mediation (Monsey, NY: Criminal Justice Press, 1994) at 44–56.

21. G.M. Maxwell and A. Morris, “The New Zealand Model of Family Group Conferences” in C. Alder and C. Wundersitz, eds., Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism? (Canberra: Australian Institute of Criminology, 1994).

22. For more information about the Fraser Region Community Justice Initiative, see online: http://www.cjibc.org/.

23. “Risk” was measured using the Level of Supervision Inventory. 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 6^th International Conference on Restorative Justice, Simon Fraser University, Vancouver, B.C., June 2003).

24. See, for example, the Aboriginal teachings outlined in P. Lane, J. Bopp and M. Bopp, The Sacred Tree (Lethbridge: Four Worlds Development Press, 1986); and see the discussion in B. Stuart, “Sentencing Circles: Making Real Differences” in J. Macfarlane, ed., Rethinking Disputes: The Mediation Alternative (Toronto: Emond Montgomery, 1997) at 206–207.

25. The initial development of “circles” within a formal justice setting is usually attributed to the Maori model of circle dialogue. See R. Ross, Returning to the Teachings (Toronto: Penguin, 1996) at 19.

26. Well illustrated by the description of the renewed Navajo peacemaking courts and their struggle to return to traditional Navajo values in P. Bluehouse and J.W. Zion, “Hozhooji Naat’aanii: The Navajo Justice and Harmony Ceremony” (1993) 10:4 Mediation Quarterly 327.

27. R. v. Moses, [1992] Y.J. No. 50, was a landmark decision by Justice Stuart, setting out for the first time in a written judgment the rationale for using sentencing circles within Aboriginal communities, as well as a description of their process mechanics.

28. B. Wellman, The Persistence and Transformation of Community: From Neighbourhood Groups to Social Networks (Ottawa: Law Commission of Canada, 2001) at 27. See also C. Fisher, “Towards a Sub-culture of Urbanism” (1975) 80 American Journal of Sociology 1319.

29. S. Merry, “Defining ‘Success’ in the Neighborhood Justice Movement” in R. Tomasic and M. Feeley, eds., Neighborhood Justice: Assessment of An Emerging Idea (New York: Longman, 1982) at 172–177.

30. For an example of the challenges faced by a group in Victoria to establish a restorative justice program, see M. Dhami and P. Joy, Challenges to Establishing Community-based Restorative Justice Programs: The Victoria Experience (prepared for delivery at the 6th International Conference on Restorative Justice, Simon Fraser University, Vancouver, B.C., June 2003).

31. See, for example, the experience of the VOM program operated by the Mediation and Restorative Justice Centre in Edmonton, Alberta. A. Edwards and J. Haslett, Domestic Violence and Restorative Justice: Advancing the Dialogue (prepared for delivery at the 6^th International Conference on Restorative Justice, Simon Fraser University, Vancouver, B.C., June 2003).