The Sunday New York Times Magazine of January 6, 2013 published an interesting article on  restorative justice entitled; ” Can Forgiveness play a role in criminal  justice?” by Paul Tullis.(can-forgiveness-play-a-role-in-criminal-justice.html?_r=1&&pagewanted=all )

The article chronicles the highly unusual approach taken by the  victim’s parents in the prosecution of the wrongdoer. The wrongdoer,  Conor McBride, had been dating Ann Grosmaire.  Conor and Ann had been  fighting for 38 hours in person, over the telephone and via text  messages. It started on a Friday night over his being tired and wanting  to go home rather than staying with her. (She was a night person.) On  Sunday morning- (Ann had stayed over at Conor’s parents’ home)- the  fighting was still ongoing. Ann stormed out to her car to leave, and  Conor followed her, asking Ann what she wanted. She responded that she  wanted him to die. So, he went back into his parents’ home, got his  father’s shotgun, loaded it, put it under his chin and had his finger on  the trigger. Ann started banging on the door, and Conor put the rifle  on the table and let her in. They argued some more, and the next thing  Conor knew, he had shot and killed Ann.

Soon thereafter, Conor turned himself into the police and told his  story. At this point, in the usual criminal justice process, Conor would  be charged, tried (or else plea bargain) and sentenced.

But the Grosmaires did not want Conor to spend the rest of his life  in jail for murdering their daughter. So, they turned to “restorative  justice”. Rather than focusing on the crime, the wrongdoer and punishing  the wrongdoer, restorative justice looks at the “harm done” – not just  to the victim’s family but to the community and the offender. It strives  for an agreement that will “put right the wrongs”for the victims, the  wrongdoer and the community. In simplistic terms, restorative justice  views society and each of us within it as interconnected: “ Crime is a  violation of people and of interpersonal relationships; Violations  create obligations.; The central obligation is to put right the wrong.”  (Zehr,Howard, The Little Book of Restorative Justice (Good Books, 2002) at pages 19,28 et passim.)    It allows each of these  stakeholders- the offender, victims and  community- to be heard and to participate in the criminal justice  process. (the little book of restorative justice )( See my earlier blog on restorative justice. (restorative-justice) )

So, Jack Campbell, the Assistant State Attorney involved in this  case, who, normally, would follow the standard operating procedure of  the criminal justice system suddenly found himself confronted by the  Grosmaires’ request to participate in a restorative justice conference  in which each of the involved parties meet and discuss the case from  their respective viewpoints and then reach a consensus on punishment.  With great hesitancy, Campbell agreed.

At the conference, Campbell, went first, reading the charges and  summarizing the evidence, the Grossmaires then spoke explaining how the  murder affected them; then Conor spoke, explaining exactly what happened  and how it affected him, and finally a representative of the community  spoke. Each party spoke uninterrupted for as long as it took. It was  exhausting and emotionally draining.

Then, the punitive element was discussed. As the author explains,  usually in such restorative justice conferences, the parties reach a  consensus on what should be the punishment. But here, Campbell refused  to suggest a punishment but only agreed to take into consideration what  everyone had said. Three weeks later, Campbell wrote the Grossmaires  advising that he was offering Conor 20 years in prison plus probation or  25 years in prison. Conor accepted the former.

While restorative justice is NOT mediation, it has some principles  that are valuable to mediation, even in civil disputes. 

The first is  that a “wrong” is not just between the wrongdoer and the wronged. We, as  a society, are all interconnected and so any civil dispute will affect  each of us as third parties.  Think about all of the laws, rules and  regulations in force; most of them were enacted because of a particular  event that ocurred involving private individuals. And indeed, our common  law system of jurisprudence is based on case law,  that while deciding a  specific dispute, still applies to the rest of us.  The second is that  to truly settle a civil dispute, everyone’s viewpoint or perspective  must be considered. The “story” must be looked at not only from the  plaintiff’s and defendant’s perspectives but from the community’s as a  whole.  Often this has to be done because the parties must determine  whether local rules and regulations impact their settlement and if so,  how. And, in this same vein, the settlement must be viewed as one not  simply between that particular plaintiff and defendant but as one  affecting the community as well. Indeed, some third party will try to  use it as a precedent at a later date. Often I have been told (as a  mediator) by a defendant that she refuses to settle because she does not  want to set a precedent or open herself up for future lawsuits from  copycat plaintiffs.

So, while on first glance, one may view “restorative justice” as a  tool of the criminal justice system, we should look deeper because it  has many principles drawn from and applicable to civil disputes.

…. Just something to think about.

by Phyllis G. Pollack

http://www.pgpmediation.com/2013/02/15/forgiveness/

Phyllis G. Pollack is a full time neutral in Los Angeles where, as President of PGP Mediation, she focuses on business, real estate, contract and “lemon law” disputes. She may be reached at Phone: 213-630-8810 / phyllis@pgpmediation.com / Website: www.pgpmediation.com