How restorative justice re-connects fairness to justice

Posted on in Child & Family Delivery System

TheGlobeandMail.com – Globe Debate
Jan. 09 2015.   Eva Marszewski

Eva Marszewski is an adjunct faculty member at Osgoode Hall Law School and is the founder and executive director of Peacebuilders International (Canada), which promotes restorative justice.

Dalhousie University President Richard Florizone has agreed to engage in a restorative-justice process in order to address the toxic, sexually threatening remarks made on a private Facebook group by male dentistry students against their female dentistry student colleagues. It has been alleged that the Facebook postings are but one example of systemic misogyny at the university, that complaints have been systemically suppressed, and that the University’s decision to use restorative justice is yet one more example of a practise of sweeping “uncomfortable matters” under the rug instead of maintaining the wellbeing of students as the University’s highest priority. Protesters want action. They want the 13 male dentistry students expelled.

Either failing to understand the restorative justice initiative undertaken by Dalhousie, or being unwilling to let Dalhousie first address the issue, even the Province of Ontario dentist-licensing agency has jumped into the fray and wants the university to release the names of each of the 13 dentistry students. The agency’s registrar has called for zero tolerance of such behaviour.

With quiet determination Mr. Florizone announced that, instead, the University will take its time to act with professional advice and determine the facts, to understand individual levels of culpability, to meet with each of the victims as well as each of the students involved. In the meantime, it has suspended each of the 13 students. They will be unable to graduate while suspended.

While Mr. Florizone has expressed repugnance at the toxic Facebook postings, he has insisted that any consequences would be based on “a just process…that supports the rights of everyone involved.”

Restorative justice – or smart justice as some call this movement – when properly applied, provides practical support for our belief in the presumption of innocence and a renewed affirmation in a society which is governed by the rule of law. It has been tried and tested for several decades: In the 1980s and ‘90s, the field of mediation was developed to manage and de-escalate conflict. Then restorative justice developed as a response to the challenges of managing culpability, supporting and rebuilding relationships and protecting society.

When allegations of wrongdoing require action, there are several stages which must take place regardless of whether they take place within a court, an arbitration or a restorative justice process.

The first is to determine what process is appropriate to the individuals or problems at hand. Where there are discreet issues impacting relationships – as in the case of conflict among the members of a graduating class – a restorative justice process is ideal. In circumstances as complex as the Dalhousie situation, the process will likely take place within one or more of three vehicles: victim-offender mediation, conferencing and circles.

The next step is to identify all necessary stakeholders. Each stakeholder’s situation must be taken on its own merits to ensure fairness. The process facilitator will convene one or more private sessions with each of the complainants and the alleged wrongdoers. Other stakeholders (those who have a direct interest in the outcome – such as employer, teacher, family or community member) will be called upon to participate at an appropriate time.

Alleged wrongdoers who are unwilling to participate honestly and who are unwilling to take responsibility appropriate to their level of culpability will likely be diverted back to the usual disciplinary process or legal system.

The ensuing restorative justice process will enable participants to produce a fair, balanced and appropriate plan of action. The plan is submitted to the ultimate decision-makers – a disciplinary committee, decision-making body and/or judge for implementation. As in the rest of life, there are no guarantees.

One of the most important reasons that restorative justice has gained global recognition and respect is that it gives a real voice and choice of process to victims of wrongdoing, something that the justice system continues to be woefully incapable of providing. Those who have been wronged can participate in person, through an agent or lawyer, by providing their stories in written or even video form. Each of these options must be carefully considered.

On a deeper level, restorative justice attempts to re-connect fairness to justice and in doing so, it repairs relationships. As we all know, the justice system is ill-prepared to repair relationships. We have all seen how many family relationships are broken in court. Restorative justice both allows and requires wrongdoers to obtain a deeper appreciation of their own actions and the negative consequences of those actions, whether intended or otherwise.

Participating in a restorative-justice process is by far one of the hardest things that wrongdoers have ever had to do. Why? Because the process requires them to be honest with themselves and with those they have harmed. It requires them to be accountable genuinely and meaningfully for their actions and to participate in the difficult process of determining the appropriate consequences. Restorative justice processes also provide an opportunity for other stakeholders and for the community to participate.

As both a litigator and arbitrator who has spent the first half of my career dealing with relationship-based disputes (such as family and sexual harassment cases) in the justice system – and now a standing practitioner in the fields of mediation and restorative justice, I applaud the decision of Mr. Florizone to withstand the public pressure and proceed to manage the Dalhousie Dentistry students’ situation with a restorative-justice approach.

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