...One effect of empowering victims, offenders, and communities with the task of deciding upon how to respond to crime within the confines of an intimate, highly contextualized mediation or dialogue process is that outcomes become inconsistent and offenders become less protected from disproportionate decisions regarding compensation. For instance, two offenders of the same age may commit the same offense and cause similar degrees of harm within the community, both may admit guilt and express remorse, yet one may enter into a mediation agreement involving 15 hours of community service while the other agrees to 55 hours. These kinds of inevitable scenarios bring up questions of fairness and equality in justice process and can be a problematic concession for a traditional justice agency or office wishing to accommodate restorative processes yet politically and socially unable to support and enforce disproportionate outcomes.
...As Edgar and Newell (2006) write, “In direct contrast to criminal law, in which the interests of impartial justice are served by treating like cases alike, restorative justice works with people in all their individuality and wholeness. No restorative conference will ever have exactly the same outcome as any other conference, because conferences (unlike courtrooms) honour the individuality and uniqueness of each participant” (p. 13). In other words, in restorative contexts, enforced consistency could result in the participants questioning the fairness and just nature of the mediation’s outcome, whereas consistency and proportionality in punitive contexts can increase our shared sense of fairness.
But can we really purport to believe that restorative mediations and conferences are entirely devoid of punishment and retribution? Often mediation agreements contain the exact same elements as unilateral sentences – elements such as financial restitution and community service. In addition, it is unreasonable to assume that some victims do not come to restorative mediations with the intent and desire to punish in some way, shape, or form. And finally, power imbalances are inevitable in victim offender dialogues wherein which an offender has admitted guilt to an offense and that offender may be younger or in some other way more vulnerable than the victim by way of race, gender, or socio-economic status, vulnerabilities which can also affect the victim. In other words, when inconsistencies do emerge in victim offender mediation agreements it is important to ask if those inconsistencies are truly rooted in the individual needs of the participants, or if factors such as social bias, unrelated instances of victimization, or physical/mental disabilities may be contributing to agreements that appear disproportionate.
These questions and issues need not create an impasse between restorative organizations and criminal justice agencies and offices, and they certainly don’t displace the positive and transformative potential of restorative processes in the field of criminal justice. That being said, they do present an opportunity for traditional and restorative organizations and models to collaborate toward the formation of criminal justice policy and practice that empowers community members, meets individual needs, and still protects participants and the shared social principles we value.
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