Presented by Dr Michael King, Senior Lecturer, Faculty of Law

1. Presented by Dr Michael King, Senior Lecturer, Faculty of Law Promoting a Healthy Workplace Culture: A Restorative Justice Perspective

2. Why “Promoting a Healthy Workplace Culture”? • An essential aspect of a healthy workplace culture is to minimise the potential for conflict and to satisfactorily handle conflict when it arises. • Restorative justice is relevant to both aspects, though it is more commonly applied in addressing conflict that has arisen.

3. What is Restorative Justice? • In general terms, restorative justice is an approach to resolving the aftermath of conflict through processes that are participatory, reparative and reintegrative. • The primary methods it uses to deal with the aftermath of conflict is perpetrator/victim mediation, conferencing and circles.

4. The Application of Restorative Justice • Restorative justice conferences are used in the criminal justice system, primarily in juvenile justice. • Restorative justice principles are applied in schools instead of a punitive approach to discipline – and can also be applied at university level for that purpose. • RJ conferences are used within the community – workplaces, community organisations. • RJ principles influence the work of Truth and Reconciliation Commissions.

5. Objects of this Presentation • To consider the influence of the adversarial approach to resolving conflict • To examine how restorative justice seeks to resolve conflict • To explore how restorative justice can be used to resolve conflict in the workplace

6. Adversarialism and Conflict • Historically, an adversarial approach has been a primary method to resolving conflict in common law nations. • To a significant degree our legal system is adversarial in nature

7. Adversarialism and Conflict • An adversarial approach to resolving conflict is also used in other areas: • Professional discipline matters – medical, law, military • Education – at all levels • Workplaces

8. What is the Adversarial Approach? • Opposing parties to a conflict put their case to a neutral third party to resolve it. • The third party makes findings of fact and determine what is the appropriate outcome according to defined rules – law, rules, organisational procedure and policy. • If a breach of the law, rules etc is found, a penalty is imposed

9. Some Disadvantages of Adversarialism • Paradoxically it uses one form of conflict between parties to try to resolve the primary conflict • By pitting parties against each other in terms of positions, they are less likely to see the needs and interests of the other and be willing to consider a compromise – they may become overly defensive. • The process can be traumatic for the parties • May lead to a win/lose or lose/lose result.

10. Some Disadvantages of Adversarialism • By focussing on solely on breaches of rules, it does not adequately consider the needs and interests of the parties -- eg, emotional needs, the fact of any ongoing relationship between them, the need of a victim for an apology etc. • The offender may be subject to stigmatic shaming • The resolution process is largely in the hands of a third party – the parties do not own the outcome and may have little commitment to implement it • As a result, the seeds of future conflict may remain.

11. The Response of Restorative Justice • Restorative justice uses processes that: • empower parties in the resolution of their conflict • address the needs of the parties rather than focussing on party positions • promote party healing • promote party reconciliation • promote reparation being made

12. Restorative Justice and Wrongful Conduct • Restorative justice sees all forms of wrongful conduct (including crime) as:* • A violation of people and relations between people • Creating obligations and liabilities • Requiring healing and the righting of wrongs

13. Restorative Justice and Non-Adversarial Justice • Restorative justice is part of a wider trend within the legal system and society towards more comprehensive, cooperative and psychologically optimal means of resolving conflict called “Non-Adversarial Justice” King M, Freiberg A, Batagol B and Hyams R, Non-Adversarial Justice (Federation Press, 2009)

14. Restorative Justice and Non-Adversarial Justice • Non-Adversarial Justice also includes mediation, conciliation, collaborative law, problem-solving courts, Koori Courts, therapeutic jurisprudence, creative problem solving, preventive law and other approaches.

15. Restorative Justice is not Mediation • Mediation is a common method to help parties reach agreement to settle a dispute through a process of dialogue • Restorative justice aims at resolving the aftermath of a dispute – party needs for healing and reparation and accountability of the person who has wronged the other.

16. Forms of Restorative Justice • Victim offender mediation – immediate parties and mediator are present • Conferencing – parties, facilitator, support persons usually present • Circles – parties, facilitator, support persons, community members present

17. Restorative Justice Processes • Meeting discusses what happened, why it happened and what must be done to put it right • Respectful dialogue is promoted between the parties • Facilitator/mediator promotes the integrity of the process rather than controlling it

18. Conferencing in the Workplace • People from the workplace affected by the behaviour come together to discuss what happened and why and its effect • Building on that understanding the participants then engage in dialogue to determine what must happen to repair the harm and to prevent future incidents • Trained facilitator moderates.

19. RJ and the Value of Narrative “Storytelling is fundamental for healthy social relationships. To feel connected and respected we need to tell our own stories and have others listen. For others to feel respected and connected to us, they need to tell their stories and have us listen. Having others listen to your story is a function of power in our culture. The more power you have, the more people will listen respectfully to your story. Consequently, listening to someone's story is a way of empowering them, of validating their intrinsic worth as a human being”. – Kay Pranis*

20. The Emotional Dimension “The emotional burden that people have carried for some months and years, is relieved in the process of reaching a shared understanding of the harm that has been done to individuals and relationships. The acknowledgement and validation of individuals’ positions and perspectives, genuine remorse…on the part of the “offender” and others who may have failed victims by their action or inaction provides a beginning to the process of emotional healing…” Margaret Thorsborne*

21. Advantages of the Process • The parties gain more information about the incident – how it happened and why • The parties can express their feelings about it in a respectful environment – barriers to resolution can thereby be removed • There is a greater possibility of apology and forgiveness • The less adversarial and less punitive environment is more supportive

22. Advantages of the Process • There is the possibility of reparation and/or a commitment to behavioural change • The parties make the decision and therefore are more open to implementing it • All those having a stake in the matter may contribute (eg organisational or community representatives and the parties) • More minds are involved in developing solutions

23. Advantages of the Process • Steps can be agreed and put in place to prevent a recurrence of behaviour that is of concern and/or to address particular organisational issues. • The parties make the decision and therefore are more open to implementing it. • The process is reintegrative, not stigmatic – it does not condemn individuals just unacceptable behaviour

24. Other Organisational Benefits* • All affected staff can understand the full picture rather than rely on gossip • The process builds trust and accountability • Conflict can be transformed into cooperation • It can be implemented speedily and effectively • It can help to review and improve the workplace culture

25. Risks Regarding the Process • Some RJ conferences have “gone off the rails” and parties have been traumatised as a result • Agreed reparation may be disproportionate to the offence • The agreement reached to resolve the matter may not be properly implemented – insufficient follow-up.

26. Procedural Safeguards • Use of trained mediators/facilitators • Parties should be screened for suitability and prepared for the process • Safeguards must be put in place regarding power differentials (eg by having support persons present) • The mediator must be vigilant to protect the process.

27. What Matters can be Dealt with by RJ? • In criminal – from less serious through to most serious offences • In schools –disputes between students and between students and teachers • Workplace* – (examples) – theft, racial vilification, industrial espionage, sexual harassment, bullying, malicious gossip, discrimination, abusive supervision and safety breaches.

28. Restorative Justice Research Findings – Criminal Justice Cases* • High level of victim and offender satisfaction with the process • Decreased victim anger • Increased number of apologies (than conventional case processing), increased victim perception apology was sincere • Some evidence of decreased recidivism in offenders.

29. Restorative Practices in Schools* • Research suggests that restorative practices promote decreased behavioural problems in schools. • Where students are trained in restorative practices, they report improved relationships with their peers, teachers and families.

30. From Restorative Justice to Restorative Practices • Restorative justice proponents see these meetings as most restorative approach to conflict • However, some see the principles of these conferences as having application outside the formal conference process – hence the emergence of “restorative practices”

31. Restorative Practices Principles of Practice* • Foster awareness – eg, ask questions of offender regarding how others have been affected by his/her conduct. • Avoid scolding or lecturing (awareness of other’s feelings promotes empathy; lecturing promotes defensiveness) • Involve offenders actively – so they are accountable and the process is restorative

32. Restorative Practices Principles of Practice* • Accept ambiguity – fault may be unclear. But promote responsibility being taken by parties • Separate deed from doer – condemn the bad behaviour, not the person • See conflict and wrongful behaviour as an opportunity for the parties and organisation to learn and to build community

33. Restorative Practices • Affective statement (“your actions made me feel angry”) • Affective questions (“how do you think Jess felt when you told everyone she was hopeless?”) • Informal conference (“corridor conference”) • Large group • Formal RJ conference

34. Applying Restorative Practices - Examples • Less serious matters can be dealt with by affective statements or question (eg situation where hurtful comments are made) • Problems with workplace practices may benefit from a group meeting • More serious matters – such as workplace bullying – may be appropriate for a formal RJ conference

35. Using RJ in Response to Workplace Bullying • Monash University has a three stage response to reports of workplace bullying:* • Advice • Conciliation • Investigation and Determination • An RJ process is consistent with this response and formal conferences could be used at stage 2 (if facilitator available)

36. Case Study – Using RJ in Response to Bullying • First, the supervisor speaks individually to the people involved, to ascertain the issues and the attitude of the parties to having an RJ conference. • If the parties agree, the supervisor refers the matter to a trained conference facilitator

37. Case Study – Using RJ in Response to Bullying - 2 • The facilitator • Identifies the people involved • Speaks individually to the people involved to • Ascertain the issues • Develop a rapport with the parties • Explain the conference process and what will be required of the parties (eg, respectful dialogue)

38. Case Study – Using RJ in Response to Bullying - 3 • The conference is held, attended by the parties, any support persons, other members of the organisation (as appropriate) and the facilitator • The parties explore what happened and why and discuss what must be done to make things right • Ideally an agreement is reached regarding reparation and/or future behaviour

39. Case Study – Using RJ in Response to Bullying - 4 • The primary focus of the conference is not settlement of a dispute • It is about recognising that the bullying behaviour was wrong, acknowledging the harm that was done and about promoting healing – for victim and perpetrator.

40. Case Study – Using RJ in Response to Bullying - 5 • Follow up • Processes are put in place to ensure the agreement is implemented • Agreement could set out follow up process for names parties to report to the others or a further conference could be held later to review the progress.

41. Guide to Managing Conflict • Many of the principles of restorative justice in terms of respectful communication and listening, inclusive and participatory procedures and the role of emotions in conflict are contained in the University’s Guide to Managing Conflict

42. Conclusion • Restorative justice is about resolving the aftermath of wrongful conduct by processes that are inclusive, respectful and that promote healing • Respectful dialogue that covers factual and emotional dimensions of the problem is important to RJ • Restorative justice is not a panacea.

43. Conclusion • When applied in the workplace it offers a more comprehensive and potentially less traumatic way of resolving conflict • It looks to the future rather than dwelling on the past conduct • It can be applied in a university workplace • Universities should also consider it as a way of addressing student discipline issues and disputes.