Te Ara Whakatika

Inside this issue

Follow the rules. That's the number one piece of advice from court-referred restorative justice facilitator Karen Leuschke.

Trends in the Pilot

The main reason victims choose to take part in restorative justice is to tell offenders what the offence was like, preliminary indications from the courtreferred restorative justice pilot suggest.

"The next most common reason is to find out about the offender," says Department for Courts project manager Alison Hill.

Offenders mostly choose to take part to apologise to the victim, with their next most common reason being to make amends to the victim.

The court-referred pilot in Auckland, Waitakere, Hamilton and Dunedin District Courts has been underway for 18 months and has so far resulted in 780 referrals from judges and magistrates.

These referrals have resulted in 270 completed conferences.

"The rate of conferences has increased slightly since the early days of the pilot, but appears to have reached a plateau at about 37 percent of all referrals."

Referral rates vary across the courts, reflecting the referral practices of individual judges.

Some judges refer all eligible cases, leaving it up to coordinators and facilitators to determine suitability, while others seek evidence of suitability before making a referral.

Speaking at the National Restorative Justice Conference held in Hawkes Bay in March, Alison said that there was limited data from the pilot to date, and some had been collected anecdotally, but it showed some common trends.

"During the course of the pilot, the department has been looking at the reasons why conferences do not go ahead, and trying to remove any barriers in our system.

"Restorative justice co-ordinators try not to gatekeep' - only halting a referral where the offender is clearly unsuitable."

Until recently, cases where offenders initially pleaded not guilty and later changed their plea were excluded from the pilot. This policy has recently been changed.

"There is no exclusion now on the basis of the timing of the guilty plea."

Cases do not proceed to conferences for a variety of reasons.

Sometimes the victim or offender does not want to meet the other, either party is unable to be contacted or to take time off because of work or family commitments, issues have been resolved, the facts might be in dispute, or either party might not be ready.

The most common reasons appear to be because the victim does not want to meet the offender or the offender is difficult to contact.

Alison says that one of the questions for everyone in restorative justice is how to ensure that the parties in appropriate cases have access to restorative justice.

"We certainly don't have a magic formula to answer this, but restorative justice co-ordinators have been regularly meeting legal practitioners, providing sessions in police training programmes, talking with the Probation Service, and stamping eligible files to draw the attention of the judge to the possibility of making a referral. This is hands-on, but still does not ensure that cases will be referred."

Preliminary feedback from the pilot suggests that most victims find a restorative justice conference a positive experience.

Most think the offender gained an understanding of how they felt, and as victims they gained some understanding of why the offender committed the offence and feel they received some kind of repair. Most victims are pleased they took part in a conference and feel fully consulted and satisfied with the conference plan.

Most offenders are reasonably satisfied with the conference, feeling that (if they apologised) their apology has been accepted, and that they have been able to make up at least partly for what they have done.

"Almost all offenders talk about the opportunity to meet the victims being one of the really good things about attending a conference, but only about half the victims say the same about meeting the offenders."

Information on what happens after the conferences is limited at this stage.

"Anecdotally we know that in some cases conference participants are disappointed that the sentence outcome is not more closely aligned to the restorative justice outcomes. This suggests a lack of understanding among participants about the relationship of the restorative justice agreement to the sentence.

"We have also noticed that sometimes victims or offenders who have agreed with a particular plan at a restorative justice conference later express disagreement. The first question that arises then is whether or not the conference allowed that victim or offender to have full input and whether they actually agreed with the plan at the time.

"Restorative justice conferences are, however, an interaction between a particular group of people at a particular time, and all participants are going through a process."

Alison says that an understanding between the offender and the victim about whether money offered at the conference will be paid, if reparation is not included in the court's sentence, may need to be set up at the conference.

She said that the evaluation of the pilot would be completed towards the end of 2004.

National Body Mooted

More than 100 people attended the recent National Restorative Justice Conference in Hawkes Bay, including community-based restorative justice providers, members of Parliament, judges and government department representatives.

The conference featured a range of speakers, as well as discussion groups and presentations by participants.

Workshops included discussions on the organisational structure and financing of community-based initiatives, national standards and values, facilitator practice issues, facilitator training, spirituality and restorative justice, and restorative justice and Maori.

The conference, organised by Hawkes Bay Restorative Justice Te Puna Wai Ora Incorporated, concluded with a discussion on developing national standards and forming a national body.

Former prison manager Celia Lashlie related the life stories of some young and hardened inmates. She said crime does not appear out of nowhere and is often preceded by a long history of abuse. "It's a myth that everyone in New Zealand is born equal. Every kid is born with magic inside, but that magic gets lost when society clearly fails to protect a large proportion of its young and vulnerable citizens.

"Prison has its place for containment, but only for the top echelon of criminal behaviours. It's not about having either prison or restorative justice. Both systems can work together."

Discussion Sought

The Ministry of Justice will soon be issuing draft guidelines on best practice for the use of restorative justice.

It is part of the Ministry's work to develop a policy framework for the future development of restorative justice processes in New Zealand. Submissions will be sought on the guidelines, which are expected to be available in early May.

The draft guidelines and an accompanying discussion paper will be distributed as widely as possible. Recipients will include restorative justice providers, government agencies, the judiciary and the New Zealand Law Society. They will also be available on the Ministry's website (www.justice.govt.nz).

The discussion paper will include information about how to provide comments on the draft guidelines. Where possible, groups are encouraged to put forward collective submissions rather than respond as individuals.

Any queries about the consultation process should be directed to Caroline Holden (phone (04) 494 9744, email: caroline.holden@justice.govt.nz) or Andrea King (phone (04) 494 9723, email: andrea.king@justice.govt.nz) at the Ministry of Justice.

Accuracy and Perseverance

Follow the rules.

That's the number one piece of advice from court-referred restorative justice facilitator Karen Leuschke. She learnt on her second case just how critical rules were when an important issue an offender had talked about at a pre-conference was later queried. Fortunately, the facilitators had meticulously documented the pre-conference and so they knew exactly what had been said. "Reports have to be accurate because the judge needs to know exactly what happened. It's really important to be able to talk to specific data and to be certain that any transcript in the final report is completely accurate."

It is also essential for the facilitators to proofread the reports carefully because it is easy for errors to slip through.

Perseverance is an important quality for a facilitator. Karen

often finds that leaving messages for offenders or victims is not enough, especially if left on a mobile phone. "Never assume that if you leave a message it will have been received. It is the facilitators who must be proactive, and this can sometimes be frustrating and time-consuming."

Making the most of the different skills of other facilitators is also critical. "It is very easy to think you've got the skills to do it yourself. I have worked with six different facilitators, and by using the skills each of us has we can be much more effective. We support each other and work in tandem." In the conference process, Karen says she "can't overstate the importance of being able to listen rather than talk. A facilitator is exactly that—it is the offender and the victim who must have centre stage. You need real empathy so that you can step into the shoes of both the offender and the victim and help them to do the same. Leave your wisdom' in the background and let the participants do the talking."

She says that her 31 years in Lifeline and Kidsline, her experience in mediation and counselling and her work as a Justice of thePeace and celebrant has been helpful, but restorative justice facilitation requires different skills.

In some areas she has had to unlearn' and then relearn'.

Karen (pictured) is a full-time teacher and finds that her contact with teenagers is a great help in understanding young offenders and victims.

"I've learnt that a smile can go a long way, and that the first five minutes of the pre-conference are the most important. You need to be able to relate to a range of people and put away any preconceptions you might have. You need to be flexible and to be able to think on your feet. When things seem to be going down the wrong pathway, you need the courage to make the necessary moves so that the conference comes back on track."

Karen says it is important for facilitators to attend their group meetings. "You can't do it on you own. You need to talk through anything that mightn't have worked so well and to share experiences both positive and negative. It is often from the latter that we can learn most—about our skills and about ourselves."

Her advice for new facilitators: "The only way you're going to get better is to go out and do it."

Commitment Recognised

Restorative justice adds another option to the justice system - "one that looks offenders squarely in the eye and supports the direct victims of their offending to look them in the eye too," Courts Minister Margaret Wilson told the National Restorative Justice Conference.

"In your work in restorative justice you demonstrate a commitment to your community in a very real way. You are working towards a more healthy community, empowered to deal with the effects of offending."

She praised the work of Hawkes Bay Restorative Justice, which organised the conference. "I know that the group has worked in a voluntary capacity over some years to develop their restorative justice programme and make it available to the people of the Hawkes Bay.

"All of you here are part of a growing group of people who are aware that justice' is not something that can be given to communities by the state, or that belongs to the state. There is a growing recognition worldwide that justice can only be fully realised when the individuals and communities affected by offending achieve justice.

"This is a very exciting time to be working in restorative justice.

The concepts and principles of restorative justice are now an integral component of our criminal justice system. "Restorative justice is a process, not an outcome in itself.

The quality of the process is all important, because what occurs in a restorative justice process is unique to the people involved - the victim and the offender, their circumstances and communities, and the offence and situation around it."

The Minister paid tribute to all of those involved in restorative justice in communities throughout New Zealand. "I want to say how much I admire the dedication and commitment you show to supporting your community in this way."

Thinking on Your Feet Important

Facilitating a restorative justice conference requires an ability to understand the meaning behind what is expressed during the conference process.

"This includes what is not said as well as what is said," says court-referred restorative justice facilitator, mediator and barrister Tim Clarke. "You need to be able to pick up on what's not said and help participants to enunciate that."

One example is where an offender sits and shrugs at a conference in response to questions. This might be seen by a victim as the offender having an "I don't care" attitude. The facilitator could pick up on it and say: "You shrugged. What does that mean?" The offender might say they don't want to be there. The facilitator could ask why? And then, Tim says, what can transpire is the offender saying "I don't want to be here because what I did really sucks and I can see I really hurt this person and their family."

It is about making the shrug meaningful.

Tim facilitated his first meeting between an offender and victim in 1986 while working for the Probation Service.

"The restorative justice process itself works extremely well.

How good the results are often depends on the way the conference is facilitated and the ability of the facilitator to pick up on issues and follow them up."

Tim says it is important that facilitators have no preconceptions before they begin, such as expecting the victim to forgive the offender.

"The participants need to set the agenda."

He says it is okay for an offender to go into a conference motivated by making things better for themselves. "In the conference setting when they have to face the victim, understand what they have done and apologise, it almost never fails to have a significant effect on the offender, which in turn is perceived and appreciated by the victim."

Offenders who have, in their minds, minimised the effects of their offending on the victim gain a level of insight through the conference process.

Tim (pictured) says that the skills required to facilitate conferences include the ability to make people feel safe and to be in control without directing the outcome. Facilitators need to be able to talk to people at the outset about what needs to happen in the conference process, to hear' what's unsaid, to pick the right line and foster communication in the right way at the conference, and to write reports that succinctly convey the meaning of the conference. They also need an understanding of the psychology of victims' responses and of the offenders' motivation.

One of the big "watch-out-fors" is the support person's role.

"It is quite common for a victim's support person to want retribution and be more angry and vehement than the victim. It is really important to talk to the support people about their role at the preliminary meeting."

In one case where the support person continued to be confrontational, the victim brought someone different to the conference.

Sometimes an offender's support person can "jump in and explain and justify what the offender did." That also needs to be addressed pre-conference.

Tim had a case where the offender turned up to a conference with people who hadn't been to the pre-conference briefing, and who obviously wanted to debate police brutality, while the offender just wanted to apologise for what he did. "So we spent half an hour or so before the conference addressing that.

"I think the most difficult part of the process is developing a level of trust to allow the conference to proceed. It's not a matter of pushing, but it is a matter of people understanding the process and the opportunity it presents. The victim especially needs an opportunity to see how it might work, that it will be safe, and the benefits for them in participating in the process. "Being able to do this involves being well trained and having experience. It's also about approach, insight and knowing what motivates people."

Te Ara Whakatika is produced by the Department for Courts to ensure the wide community of people who support the restorative justice movement are kept informed about the court-referred restorative justice project. The items in this newsletter do not necessarily reflect the views of the Department for Courts or official policies. Articles in this newsletter may be copied and reproduced, but Te Ara Whakatika must be acknowledged. Te Ara Whakatika can be viewed online at www.courts.govt.nz/publications/news.html. Inquiries regarding the court-referred restorative justice project should be directed to: Alison Hill, Department for Courts, PO Box 2750, Wellington, Phone (04) 918 8839, Fax (04) 918 8820, email: alison.hill@courts.govt.nz; or to co-ordinators Islay Brown (Auckland) Phone 025 745 141, (09) 916 9000; Garry Summers (Waitakere) Phone 025 271 5148, (09) 916 5268; Marianne Lammers (Hamilton) Phone (07) 957 7816, (025) 271 5203; Cathy Brown (Dunedin) Phone 025 271 5164, (03) 471 5170. Te Ara Whakatika mailing list inquiries should be directed to: Abpost, PO Box 38756, Petone, Wellington. Fax (04) 568 3400.