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Why RJ?

Lawrence KERSHEN QC18


The use of mediation and Restorative Justice is developing across the world.
Experience of these complementary dispute resolution methods has been built for
longer in some cultures and jurisdictions than in others. This article aims to identify
some of the benefits and pitfalls inherent in the adoption of these processes, and
Restorative Justice in particular. The article is a personal and subjective account of
the authors experience in this field over the past 15 or so years, both as mediator
and as a Board member of the Restorative Justice Council. It examines some of the
key learnings to be derived from this experience that might be relevant to those
interested in developing the field. The main themes that emerge are the need for an
over-arching body that will promote the RJ agenda nationally, the importance of
effective governance in such an organisation, the need for a communications strategy
that will inform and inspire all levels of the community, and the essential role that
standards play in promoting effective RJ and its acceptance by the public. It has been
written in the hope not only that it will encourage and guide others who see the
potential of RJ but may be at an early stage of its implementation, and also to help
them to avoid some of the wrong turnings that can be taken in any process of trial
and error, that is learning by experience.
I should start with a disclaimer I am no academic, and no theoretician. I share the
reaction of a mediator colleague and friend who was asked to make a presentation on
mediation to an Australian university. At the end, one of the professors present leaned
back in his chair and said to her: Well I can see it works in practice but does it
work in theory?
It was years of practice as a barrister, a trial lawyer, in the courts of England and
Wales that gave rise to my enthusiasm and even passion for mediation and restorative
practice was born of. And after many years toiling at the coalface of the law, both
civil commercial and criminal, I found myself saying There have to be better ways
of doing this.
1967, the year I was called to the Bar, was a time of upheaval in society, in
consciousness and for me personally. The Vietnam War was raging, young people
were outspoken in challenging the status quo and the theme for many was Make
Love not War. For me there were the challenges of finding my place as a barrister
and yet remaining true to principles of individual freedom.

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Lawrence Kershen has facilitated commercial and other mediations since he was accredited as a
mediator in 1994, and more recently as a restorative practitioner. With a background as a barrister, he
was a board member and latterly Chair of the Restorative Justice Council from 2003 to 2012.

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As I made my way in the adversarial legal system, it showed itself to be a particularly


useful instrument for identifying issues, and sometimes for extracting the truth
extracting also being the description of a dentist pulling teeth. It seemed however a
particularly blunt instrument as a way of resolving differences between people,
businesses, organisations and institutions, of making peace between them.
So when in 1994 I discovered that the word mediation was different from meditation,
or even medication, I was intrigued, then inspired. I had become familiar with a
process where the winner takes all, or worse, where the winner comes out of court
saying: Call that justice! I may have won the case but what good does it to me?. I
was excited by the possibility that the parties could resolve their differences
themselves, and even better that they could choose the elements of that resolution.
In criminal work I often saw the frustration and anxiety that victims experienced
waiting for, during and even after their court appearance. And I saw that the process
did little to change indeed was not designed to change their experience of the
crime of which they were victims.
The same applied to the perpetrators. If they were pleading guilty, they needed to do
no more than answer to their name when asked, and Guilty when the charge was
put. Then go down the stairs to the cells and start to do their time or come out of
court and join their mates down the pub to celebrate their lucky break.
Nothing had changed for most of them, and in no way did they have to face up to the
consequences of their actions.
From mediation to RJ
Once I had started to learn mediation skills, it seemed obvious that they might have a
place in the criminal justice system. Some process was needed to connect the
offender with the effect of his actions on his victim, I felt. There had to be a way for
his conscience to be awakened on the working hypothesis that he had a conscience.
And, as I saw when I sat as judge, there needed to be some way in which the victim
could learn that the perpetrator was not an evil monster (usually), but a damaged,
vulnerable individual who was most often himself a victim.
So when I heard Professor Howard Zehr gave a talk on Changing Lenses, it was a
profound experience to learn that Restorative Justice existed and was alive and well,
even if only in small pockets across the world. I wanted, indeed felt obliged to
support its development in any way I could, and so I became a member of what was
then the Restorative Justice Consortium.
Its tempting to think that the RJ movement has arrived in England and Wales, with
legislation for pre-sentence RJ currently before Parliament, moral and financial
support for the RJC from Government and a planned national rollout. There is, of
course, more work to be done and, no doubt, more obstacles to overcome. However

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with the benefit of hindsight some general guidelines and principles stand out if RJ is
to flourish.
A Restorative Justice body
A body that will promote the RJ agenda nationally whatever its name seems to be
essential. Whether such a body is a charitable company (like the RJC) or some other
organisation, it needs to be there, and perceived as there, for the good of all rather
than any sectarian group.
In addition, the support of champions and influential patrons seems in retrospect to
have been essential. A number of individuals and organisations played crucial roles in
promoting the understanding and credibility of restorative justice in the UK.
Champions like the then Chief Constable of Thames Valley Police, Sir Charles
Pollard, academics such as Martin Wright, civil servants like Lizzie Nelson, then
Home Office lead on RJ, were all key figures.
There have been other key events and signposts along the way. Public confidence in
standards of good practice has seemed fundamental in such a delicate area of
endeavour. Developing Best Practice guidance, and moving from being a Consortium
to a Council was integral to maintaining practice standards. Although it was not
always politically easy, this has been a key contribution to the acceptance of RJ.
And of course influencing the media has been critical. The more that journalists in
print and visual media understand the effectiveness of RJ, the better embedded it
becomes. Accounts from victims of the benefits and the positive effects of the RJ
process are particularly valuable.
Governance
Another important step was encouraging RJC Board members to act and think in
terms of what is best for the organisation, rather than their own group or constituency.
Those who support RJ have often had to fight to sustain their vision against resistance
and cynicism. Sometimes individuals develop what might be called founder
mentality, where if a proposal wasnt in line with their thinking, it shouldnt be done
at all.
Yet what such a Board needs is not individuals who will represent their own
organisations or constituencies, but who are dedicated to the best interests of the
Council in driving a national agenda. At times, this may throw up crises of
conscience, yet it is vital for the healthy and effective functioning of the RJC. The
challenge of course is to manage those differences in a restorative way!
Diversity is a huge asset to such a body, so it is vital to reserve (and even write into
the constitution) some places on the board for those who come not from a criminal

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justice background, but with experience in e.g. business. It helps of course if they are
sympathetic to RJ!
It is also valuable to carry out a skills audit, analysing what skills are represented in
the current make-up of the Board, and what skills are needed; then encouraging
applicants who will fill those skills gaps such as marketing, fundraising,
organisational development etc.
The restorative meeting
What has inspired me throughout is the experience of transformation that is
inherently possible in any such meeting. Individuals may approach it filled with fear,
dislike, or hatred, maybe built up over a long time yet can emerge on the other side
with affection or compassion or empathy for the other. How different from the
outcomes of traditional criminal justice.
Religion exhorts us to forgive those who wrong us. This may be very difficult to find
in our hearts when we feel ourselves to have been victimised. Yet the process of
meeting and talking offers a path to find that spiritual element. Thus it is not
uncommon to find contrition, regret, compassion, and empathy at such a meeting e.g.
the victim who after a couple of hours offers to help the offender find work. Or the
offender who wants to stay in touch with their victim to let them know about their
progress. Many other examples abound, as a brief look at the RJC website
www.restorativejustice.org.uk will reveal.
Implementing RJ - the Challenges
To those of us brought up in a retributive legal system the nature of a restorative
process is pretty unfamiliar. So it should not come as a surprise that RJ may be seen
as dangerous and threatening, and its potential for upset should not be
underestimated. A principal source of resistance to RJ may well be the apprehension
that stems from this unfamiliarity.
To address this, an approach is necessary that is to borrow Professor John
Braithwaites description both top down, ground up and middle out. A
communication strategy must seek endorsement from Government and policy
makers. It needs to address public perception and concerns. And it must engage with
professionals both in criminal justice e.g. judiciary, lawyers, probation, prison
service and business, as well as those who are already working in the restorative
field.
A good starting place however is the recognition that the existing system is not
serving us the community as well as it needs to. There is no need for a moral position
only the pragmatic and sad fact that in the UK at least, victims satisfaction rates
with criminal justice are low and recidivism is high. It has been helpful to cite the

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Governments own research which shows that RJ offers 85% victim satisfaction rates
and a 27% reduction in reoffending.
Other challenges are around the sustainability of the body promoting RJ. Basically
this means money. Funding crises can sap energy that should be going into
development work. To avert these and the perennial search for money, sustainable
sources of funding have to be found. These may be from membership fees and
practitioner registration, from grant-making trusts and business sponsorship. It may
be that consultancy offers a revenue stream, although such fund-raising opportunities
are limited. Ideally committed funding from public bodies e.g. the EU, the State,
gives the greatest measure of sustainability though such funding can bring with it
particular challenges of its own.
Standards in RJ
There are of course other and more specific questions of policy and practice that have
to be considered e.g. confidentiality, voluntary nature of participation and so on.
However the most important function that a national body can offer I believe is
quality assurance for the public. At the heart of it is the need for a safe process, where
those involved and the community at large can feel confident that at the very least, no
further harm will be done, and at best the process is managed with integrity in a way
that is secure and effective.
Steps that have been taken to this end include:
-

drawing up Best Practice Guidance


a national Practitioners Register
a national Trainers Register
a Code of Practice for Practitioners
a Code of Practice for Trainers
Accreditation of Practitioners
a Restorative Service Quality Mark for agencies

It has been important that all of these have been created in conjunction with the
membership. Indeed it could be said to be essential that this body acts in a restorative
way in everything it does in other words that it walks its talk.
The view beyond
So RJ is not something to be imposed indeed it is a contradiction in terms and of the
spirit of a restorative approach. If RJ is integrated into the fabric of our society it is
because it expresses a progression. Revisiting Nils Christie, the State need no longer

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take ownership of our conflicts. Humanity and our society have grown up enough to
be more responsible and response-able for resolving our differences ourselves.
Those who undertake this great work however should be under no illusions this is
about a change of culture. This journey from a retributive to a more restorative
system, from third-party resolution of disputes to self-determination, requires a shift
in attitudes and that takes time. It could be described as a kind of evolution. And
despite my mature age, I have not yet outgrown my tendency to idealism only now
I would express the ideal as Make Peace not War.

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