Trust and Power-Distance: A Psychological Perspective on Fairness in Restorative Justice Conferences
Sivasubramaniam, Diane, Goodman-Delahunty, Jane, Psychiatry, Psychology and Law
Psychological research indicates that trust in the independent third party affects the way in which disputants rate the fairness of legal procedures. This article addresses procedural variation in restorative justice practices, in the context of psychological research on procedural and distributive fairness. In particular, we describe differences in the ways in which high and low power-distance participants determine fairness in conferencing procedures. This article outlines the way in which convenor variation in conferencing programs may affect participants' perceptions of bias in these conference procedures, and the moderating effect of power-distance on the consequences of this perceived bias. The authors argue that a sensitive analysis of the ability of restorative justice procedures to deliver effective justice requires consideration of individual difference factors in conjunction with situational factors.
The Restorative Justice Approach
Therapeutic jurisprudence is a mental health approach to law that uses the tools of the behavioural sciences to reshape legal processes in ways that can improve the psychological functioning and emotional wellbeing of those affected. Therapeutic jurisprudence is an approach to legal intervention that aims to apply the law in a therapeutic way so long as other values, such as justice and due process, are fully respected (Wexler & Winick, 1996).
Restorative justice practices are consistent with this approach, emphasising healing the wounds of victims, offenders and communities caused by crime. Restorative justice differs from traditional punitive justice in that it focuses on repairing the harm caused by a crime, rather than on punishing an offender for breaking a law. Restorative justice consists of a variety of practices at various stages of the criminal legal process, including diversion from court, actions taken in conjunction with court decisions, and meetings between victims and offenders at any stage of the criminal process (Daly & Hayes, 2001). Conferencing is a restorative justice practice that brings together victims (and their support persons), offenders (and their support persons) and various members of the concerned community in an attempt to repair the damage done by a crime to the victim, the offender, and the community.
Restorative justice, in its various forms, has been proposed as a mechanism for addressing a range of offence types with a range of people. Bolitho (unpublished manuscript) explores the role of responsibility and moral emotions in the restorative justice process of reparation, and addresses the conditions that are required to make 'making amends', a good or at least acceptable practice. While these are important issues in all restorative justice procedures, this article will address the way in which these issues arise in restorative justice conferencing.
Conferencing Practices in Australia
Family Group Conferences, the precursor to many Australian conferencing models, were implemented in New Zealand in 1989. They were developed in close consultation with Maori communities, from whose culture the concept originated. Ideally, discussion takes place in a context of compassion, as opposed to the more adversarial environment associated with court. Young offenders must admit to the offence in order to be eligible for conference proceedings. Their supporters (often a parent or guardian), the victim and their supporters, various community members, and a conference convenor meet to discuss the offence and its consequences.
Offenders are given the opportunity to talk about the circumstances associated with the offence. The offender's supporters discuss how the offence has affected them, as do the victims and their supporters. Members of the community may also participate. After a review of the offence, discussion ensues of an outcome agreement that the young person is expected to complete. …