A criticism of mediation and informal techniques generally is that they lack the symbols of morality offered by the retributive paradigm. Criminal law is characterized by norms and values affirmed by society. Since mediation focuses on individuals and the settling of personal conflict, it fails to symbolically express the violation of societal norms and values. Therefore, it fails to clarify societal norms and values. Bussman further questions whether individual parties to mediation can act on their own behalf and as representatives of the community. To the extent that they do not, communally-held norms and values will be absent from those processes.
Others argue that informal processes foster moral development as the parties to the mediation work on making things right out of what is/was wrong. The value of the process is in mutual conflict-resolution. The outcome can sustain and express the moral order, but more importantly the process itself leads to norm-setting. Restricting the process to what meets the narrow legal definition of unacceptable conduct and the facts relevant to that discussion undermines the process' ability to provide opportunities for norm-clarification.
Although restorative justice may offer a less effective means of expressing community outrage about crime than the retributive paradigm, it may be better suited to furthering moral development. With its emphasis on mutual problem-solving, restorative justice promotes communication, negotiation, compromise and responsibility. In other words, while criminal justice expresses in brood terms many of the universal norms held by a society, restorative processes help the parties understand and clarify those norms and values.
Restorative justice reinforces both communal traditions and universal norms, while the traditional system through formal processes tends to exclusively perpetuate the latter. Unlike the traditional system, restorative justice creates a space where consensus can be reached; which, in turn, promotes community moral learning. The educative function of law is satisfied by this community moral development, as parties learn from one another. Community moral development provides the educating function that proportionality, for a retribution-oriented system, seeks to achieve. This moral development is increased as representatives of the community are included as parties.
Parties to the conflict represent the interests of the community to which they belong--defined as a group of persons linked by a network of common interests. The value of the restorative process is the moral education achieved through the active participation of the parties in the absence of formal rules and procedures. For law is not simply a set of rules and procedures, although many who participate in juvenile and criminal justice will experience it as that. Law is also an expression of values and norms. It is as those universal norms are tested, reinforced and adapted in the context of particular conflicts and communal traditions that moral education occurs; we learn better what it means to do justice.
This document prepared by Christopher Bright. Copyright by Prison Fellowship International.