Informal Reckonings

Conflict Resolution in Mediation, Restorative Justice, and Reparations

Andrew Woolford, R.S. Ratner

• Publisher: Routledge-Cavendish
• Year: 2008
• ISBN:
  9781134087112
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The 'reparational turn' in the field of law has resulted in the increased use of so-called 'informal' approaches to conflict resolution, including primarily the three mechanisms considered in this book: mediation, restorative justice and reparations. While proponents of these mechanisms have acclaimed their communicative and democratic promise, critics have charged that mediation, restorative justice and reparations all potentially serve as means for encouraging citizens to internalize and mimic the rationalities of governance. Indeed, the critics suggest that informal justice's supposed oppositional relationship to formal justice is, at base, a mutually reinforcing one, in which each system relies on the other for its effective operation, rather than the two being locked in a struggle for dominance.

This book contributes to the discussion of the confluence of informal and formal justice by providing a clearer picture of the justice 'field' through the notion of the 'informal/formal justice complex.' This term, adapted from Garland and Sparks (2000), describes a cultural formation in which adversarial/punitive and conciliatory/restorative justice forms coexist in relative harmony despite their apparent contradictions. Situating this complex within the context of neoliberalism, this book identifies the points of rupture in the informal/formal justice complex to pinpoint how and where a truly alternative and 'transformative' justice (i.e. a justice that challenges and counters the hegemony of formal legal practices, opening the field of law to a broader array of actors and ideas) might be established through the tools of mediation, restorative justice and reparations.

Chapter 1
Formal and informal justice

The topography of law: the formal and the informal

Law is often discussed as though it is a physical space. It has been described metaphorically as an ‘arena’ or a ‘field’ (Gilson and Mnookin, 1994; Harnett, 1985; Mason, 1999). But if law is a field, what are its contours? Does it have an inside and an outside? Are some practices more central to this field (the ‘formal’), while others are more marginal and secondary (the ‘informal’)? In modern, Western, capitalist societies, the answer to this question is often taken to be self-evident. We commonly refer to state-administered and bureaucratic justice processes as ‘formal’, while negotiated and meditated justice processes are designated as ‘informal’. Simply put, ‘informal justice’ refers to those forms of justice that are said to take place outside of the formal courtroom, in settings that are less rule-bound and adversarial. For many critics of ‘formal justice’, informal practices hold the promise of a justice that is more empowering, participatory and accessible, while, at the same time, less alienating, costly and adversarial (Bush and Folger, 1994).

Over the past few decades, we have seen new dispute resolution practices rising to the fore, claiming the status of ‘informal’ justice and claiming to ‘do law differently’. The three forms of so-called informal justice that we discuss in this book—mediation, restorative justice and reparations—exemplify this trend. By ‘mediation’, we mean specifically practices of civil dispute resolution in which a ‘neutral’ intermediary assists conflicting parties in arriving at a consensual resolution, sparing them the time, cost and combativeness of the courtroom.¹ The mediator is not asked to decide the case for the parties; rather, using a variety of negotiation and communication techniques, the mediator helps to ‘facilitate’ a discussion that is directed toward reaching an agreed-upon solution.

‘Restorative justice’ follows similar principles, but focuses largely on ‘criminal’ conflicts. Restorative justice meetings bring together victims and offenders—and, in some cases, their friends, families and fellow community members—in facilitated meetings to discuss the consequences of, and potential resolutions for, criminal acts. Like mediation, restorative justice is intended to be a participatory and empowering form of justice, which removes judicial agency from the grip of legal professionals and places it largely in the hands of citizens. In restorative justice encounters, victims and offenders are invited to recount their versions of the events that transpired. In addition, the offender often receives a chance to explain the motivation behind the misdeed, while the victim usually gets an opportunity to impress upon the offender the suffering that has been caused. Throughout the process, family, friends and community members may be able to offer input in the form of comments on the character of the victim and offender, as well as the wider consequences of the criminal act and by suggesting how the offence may be remedied.

Finally, ‘reparations’, as we use the term, features a variety of responses to past injustices, including tribunals, truth commissions, commemoration, restitution, lustration,² and symbolic and material compensation. Our focus is less on the formal zones of this field, within which international courts—such as the International Criminal Tribunals for the former Yugoslavia and Rwanda—have been established; we are more concerned with those mechanisms that seek to attend to collective wrongs and collective suffering without recourse to courts and trials. For example, although truth commissions are, in some cases, affiliated with or loosely connected to legal or quasi-legal proceedings (as is the case in Sierra Leone), they establish public hearings and truth-telling ceremonies designed to reveal previously unacknowledged or actively denied political crimes and human rights violations. Likewise, commemorative projects—such as the establishment of memorial museums or days—and compensatory programs—which may involve the dispersal of symbolic gestures (e.g. apologies) and/or material goods (e.g. monetary payments) to wronged groups—serve to publicly recognise previous injustices and symbolise an end to conflictive group relations. In most cases, all of these efforts represent attempts to prevent past conflicts from stagnating in the courts, within which excessive time and resources would be required to bring about their resolution.

Based on these brief descriptions of mediation, restorative justice and reparations, we can begin to identify some of the ‘informal’ characteristics that unite these justice practices:

• they are intended to facilitate the participation and empowerment of the parties involved in the conflict without necessary recourse to legal professionals;

• they are adaptable to the specific conditions of the conflict at hand, rather than rigidly bound by rules;

• their legitimacy does not derive from state authorisation, but rather from the representative and deliberative involvement of concerned parties, as well as participant satisfaction.

Supporters of these ‘alternative’ forms of conflict resolution contend that, in contrast, the formal justice system fails on these three grounds. The courtbased system of formal justice disempowers the parties to a dispute by making legal professionals the key participants in the dispute resolution process. It also applies rigid rules of formal law that inhibit creative solutions to societal conflicts and problems. Finally, formal law serves the primary function of reinforcing state legitimacy rather than restoring positive community relations (cf. Christie, 1977; Van Ness and Heetderks Strong, 1997).

It must be acknowledged, however, that these so-called informal modes of ‘dispute’ or ‘conflict’ resolution often receive resources and endorsement from the reputed bastion of formalism: the state. Mediation techniques have been used as a means for clearing the clutter and backlog of the civil courtroom, and for reducing the costs of justice; restorative justice has been broadly accepted as a tool for dealing with youth and those committing ‘less serious’ crimes; reparative bodies, such as the South African Truth and Reconciliation Commission, have been implemented by states in places where formal justice appears too difficult to achieve. This raises the question: do these practices represent a transformation of the legal field? Or are they simply part of a reconstituted, yet still persistent, legal order? Our task in this book is not only to situate these ‘informal’ practices in relation to the field of law, but also to understand them in their broader social and historical contexts. Why have these practices emerged en masse at the present socio-historical moment? Moreover, do they carry potential to serve as catalysts for progressive social change?

Up to this point, we have placed the words ‘informal’ and ‘formal’ within quotation marks to highlight that these are problematic terms, which are contested on several grounds. For example, questions have been raised as to whether or not these terms truly designate separate realms of legal activity (Fitzpatrick, 1995). What we refer to as the ‘formal’ system of law—e.g. the codified law and its application in courtroom settings—has always contained ‘informal’ elements. This point was driven home for one of this book’s authors when he was called to court as witness for the Crown in a case involving the uttering of threats and assault with a weapon. Ten months earlier, on a leisurely camping outing, he had asked a neighbouring camper to turn down the volume on his stereo, to which the neighbour had responded by taking a crossbow from his tent and threatening to kill the co-author. Once in the formal courtroom, however, before facing the judge, the co-author was informed by the Crown attorney that a plea bargain was in process. The Crown was considering a suspended sentence with probationary conditions, based upon the defendant’s participation in Alcoholics Anonymous and anger management programmes during the time following the incident. With the blessing of the co-author, the plea bargain was accepted and the case was informally negotiated to resolution, literally on the steps of the courthouse.

In addition, it has also been suggested that, when studied closely, ‘informal’ practices, such as mediation, often reveal formal patterns of action and outcome (Pavlich, 1996a) and operate to reproduce, rather than to challenge, the hegemony of law (Pavlich, 2005; Woolford and Ratner, 2007). For example, informal justice programmes tend to siphon off cases that might otherwise overburden the formal justice system and thereby, through this ‘clutter-clearing’ function, serve to bolster, rather than to counter, formal justice. If, however, the formal law is as its informal critics describe it—an adversarial practice that privileges the roles of professionals, while excluding wider citizen participation—then this complicity in reproducing legal domination clearly detracts from claims that informal justice represents an ‘alternative’ to formal justice. Moreover, the close relationship between informal and formal justice raises questions about the degree to which informal justice presents an oppositional challenge to formal justice.

We take as our starting point not the assumption that there exist mutually exclusive formal and informal aspects of law, but instead the notion that the complexity of law is poorly reflected in the formal–informal dichotomy. It may seem, then, that the language of the informal and the formal is unhelpful, and that it should be discarded; we will instead elaborate the idea of an ‘informal–formal justice complex’ to describe a cultural and political formation in which adversarial/punitive and conciliatory/restorative justice forms coexist and overlap in relative harmony, despite their apparent contradictions. This idea allows us to acknowledge that there are informal and formal elements of law, even if there are not fully formal or informal systems. It also allows us to approach the question of whether or not these informal elements or ‘moments’ hold any potential as a space from which can be launched an internal critique that challenges the ways in which current legal practices tend to reflect the interests of dominant social actors and exclude significant public input.

The informal–formal justice complex will receive greater attention in the next chapter; for now, it will suffice to say that we intend to problematise the informal–formal binary so that we can better understand the space in which new justice processes emerge, as well as their potential to counter hegemonic patterns of law and domination.

Informal justice?

Informal justice, in the forms noted above and in others, is argued to have had a long history. Its earliest manifestations are often located in small-scale, kinship-based societies of the distant past (Zehr, 1990; Weitekamp, 2003). In these ‘acephalous’ (or headless) societies (Michalowski, 1985), egalitarian relations were complemented by conflict resolution mechanisms directed toward righting wrongs and re-establishing community harmony. While blood revenge, retribution and ritual punishments were not uncommon as means for correcting deviance, restitution was the method most widely used in these societies (Weitekamp, 2003).

Informal justice is also considered to have been the paradigmatic justice strategy for various indigenous peoples. While, as Laroque (1997) notes, the anthropological record is often portrayed in an overly simplistic fashion that ignores the punitive forms of conflict resolution employed by some indigenous communities, several indigenous groups did utilise (and continue to utilise) conciliatory justice practices. The Maori of New Zealand, for example, use what is called ‘Marae’ justice, which they have continued to practise even after colonisation and the attempted imposition of Pakeha (non-Maori) justice. For most minor cases, and even for more serious conflicts involving sexual or child abuse, the families of disputing parties gather to talk things through, to get to the root of the problem and to create a plan to deal with the matter. Rarely are such cases reported to the formal authorities. Moreover, Marae justice has now received formal recognition in the form of the Children, Young Persons and Their Families Act (1989), which mandates the use of Maori family group conferencing methods for youth offences before they are brought to family court (Consedine, 2003).

Several examples of informal justice can also be noted among the early colonial settlers of North America. Indeed, as Auerbach (1983) illustrates, Puritan and Quaker communities in colonial America exhibited a strong scepticism toward law and state involvement in everyday life, and held informal negotiation between disputants to be more consistent with Christian approaches to justice. When conflict arose in these communities, it was considered an antisocial act to take one’s fellow community member to a court of law; instead, matters were resolved by a local notable, who was familiar with both of the parties to the conflict and held moral authority vested through his or her community status.

In Western societies, informal justice is commonly thought to have disappeared or receded after the state ‘stole crime’ (Christie, 1977) and conflict from communities. Even after the beginning of state centralisation and formal legal power in roughly the twelfth century, however, informal justice has had a continued presence in these societies, even if only in the ‘shadow’ of the formal law (Mnookin and Kornhauser, 1979; Harrington, 1985). Evidence of the persistence of so-called informal justice can be identified in figures such as the West German Schiedsman (a local conflict conciliator available for the voluntary resolution of disputes) and the French juge de paix (a system of locally elected justice officials established after the French Revolution, and designed to increase access to justice and mediate disputes within the communes). Nonetheless, over time, informal justice practices have become marginalised and secondary to state-driven processes of conflict resolution.

The marginalisation of informal conflict resolution practices began with the movement towards state consolidation, whereby rulers sought greater control over, and definition of, their populations and national boundaries. The impetus behind this consolidation came, in part, from the needs of an emerging industrial system that required workforce regulation, as well as controls over those who rejected work. In Britain, those forced off the land through the process of enclosures were ‘freed’ from serfdom to choose work within the factories that were multiplying across the country; many opted not to work rather than to subject themselves to gruelling labour for long hours in terrible conditions for inadequate pay. Legal controls were thus a means by which these individuals could, for instance, be branded ‘vagrants’ and forced into work camps or imprisoned. We must, however, be careful not to reduce the emergence of legal hegemony to a mechanistic function of changing economic conditions, because culture also played a role. A cultural shift toward more individual, competitive and rights-based discourses was simultaneously occurring, leaving behind the community connections that made informal justice practices more readily operational (Auerbach, 1983). As urban density increased, and as individuals with different belief and value systems began to live among one another, conflict was no longer simply a matter of neighbours working things out; instead, it often involved people, who were unfamiliar with one another, seeking to advance their own individual interests.

But the inverse relationship between capital and informal justice is not as straightforward as it may appear, and capitalists, while calling for greater formalisation in some sectors (e.g. crime control and property rights), also saw the utility of informal justice for their own practices. Thus, while changing economic relations destroyed the grounds on which informal justice systems were built, some informal justice practices nonetheless continued. Indeed, informal justice was the justice of choice in many commercial interactions. From the early days of the capitalist system, merchants and traders viewed the formal justice system as an inefficient and expensive means of conflict resolution. They preferred to work out conflicts in accordance with the informal customs of business, rather than the law of the courts (Auerbach, 1983; Dezalay, 1994; Heydebrand, 2003) and, in this manner, the capitalist class played a crucial role in the persistence of informal justice. But this group also contributed to the further entanglement of formal and informal justices. For the business-minded, informal justice was not...

Table of contents

• Contents
• Preface
• Chapter 1 Formal and informal justice
• Chapter 2 Assessing informal justice
• Chapter 3 Mediation in the informal– formal justice complex
• Chapter 4 Restorative justice in the informal–formal justice complex
• Chapter 5 Reparations in the informal–formal justice complex
• Chapter 6 Informal justice counterpublics
• References
• Index