Developing penal juvenile mediation in an inclusive way: Empowering juveniles, families and communities Ivo Aertsen KU Leuven Institute of Criminology Taller Preparatorio del XIV Congreso Mundial de Mediación y Cultura de Paz Buenos Aires, 22 March 2018

Outline Focus on the link between penal juvenile mediation and a culture of peace Therefore, we consider mediation: In an inclusive way: juvenile offenders, victims, families and communities In an empowering perspective: not only for, but with Three parts: Practices of mediation with juveniles, strengths and weaknesses The need to change the underlying paradigm: restorative justice and its models How to work in mediation towards a culture of peace?

Practices of mediation with juveniles, strengths and weaknesses

Origins and development In various countries, from 1970s onwards Part of reforming (or creating) juvenile justice systems A social work model predominates: Offender focused Objectives of the intervention: rehabilitation, education, prevention Individualising approach Mediation style: direct, orienting Sometimes a more ‘neutral’ mediation model prevails, mainly with adult offenders: Focus on victim and offender Objectives: equal, neutral service to both parties, less outcome oriented Mediation style: facilitating Attempts to also include the community, mainly for juveniles (infra)

Strengths Wide application (at first sight) As idea and type of intervention very acceptable for many (public prosecutors, public defensors, judges, educators and social workers, politicians, public opinion) Also for victims very acceptable on the basis of their pro-social attitude Mediation practice according to a clear and well established methodology (principles of neutrality, voluntariness and confidentiality; legal and parental assistance for juveniles; special protection and support needs of juveniles) Legal basis in many countries (e.g. in nearly all European countries), supported by international regulations (UN, Council of Europe, EU) and regional networks (e.g. European Forum for Restorative Justice, Asian Pacific Forum for Restorative Justice) Positive effects on juvenile offender: satisfaction, recognition, respect, re- offending (often in combination with other measures)

Weaknesses Limited impact in a quantitative way (in relation to what is legally possible) (except in a few countries) Negative (restrictive) effects of institutionalisation (e.g. mediation mixed up with other types of intervention) Victims not always included: Access to programmes mostly through offender-related criteria (type and seriousness of offence, age and history of offender) Many victims excluded or discriminated (e.g. victims whose offender is adult) Victims might feel ‘used’ (instrumentalisation of mediation) Mediation for juvenile offender = a ‘favour’, a measure, a service, or a right? To which extent are families really involved and ‘empowered’? To which extent and how can the ‘community’ be involved and responsibilised?

The need to change the underlying paradigm: restorative justice and its models

Challenges Which approach to be adopted? To rehabilitate the offender? To support the victim? To reduce crime? To reduce the court’s caseload? To save costs? Replicating the positions and concepts of (criminal or juvenile) justice processes? Should we be more inclusive and participatory: towards the offenders, the victims, their families, their communities? Therefore: let’s clarify what we want

Thinking substantially: towards a new conceptual model ‘Changing Lenses’ (H. Zehr, 1990): How we look at crime How we react to crime Balancing the needs of victims, offenders and society Restorative justice = A general approach, guided by a set of values and principles

‘Restorative justice is a problem-solving approach to crime which involves the parties themselves, and the community generally, in an active relationship with statutory agencies. It is not a particular practice, but a set of principles which may orientate the general practice of any agency or group in relation to crime.’ (Marshall, 1999)

(Bazemore and Walgrave, 1999) ‘Restorative justice is every action that is primarily oriented toward doing justice by repairing the harm that has been caused by a crime’ (Bazemore and Walgrave, 1999)

UN Definitions: Basic Principles on the use of Restorative Justice Programmes in criminal matters (Commission on Crime Prevention and Criminal Justice, April 2002 – see also UN Handbook): - RJ programme - Restorative process - Restorative outcome

Models in practice Restorative justice - prototypes: Victim-offender mediation (VOM) (penal mediation) Conferencing Peacemaking circles/Sentencing circles Restorative practices: In criminal justice In other settings Strict sense: methods With many variations on the theme Broad sense: Complementary practices (probation, victim support, prevention programmes, ...) Re-orienting: The criminal justice system (from police to prison) Community responses (involving local communities, volunteers and other participatory approaches)

Theoretical foundations Putting delinquent behaviour in its natural context Communitarianism – Theory of Reintegrative Shaming (J. Braithwaite) Strenghts based approach – The Good Lives Model (T. Ward, S. Maruna) Understanding victims The experience of wrongfulness – victimisation as a social process Victim’s needs of justice (K.Daly) Participation Voice Validation Vindication Offender accountability

Empirical findings At the individual level At the organisational level Effects on re-offending: Conferencing or mediation? Direct meeting with victim More serious crimes Involvement of the victim At the organisational level The community is not always the community

How to work towards a culture of peace?

Reaching ‘the community’ ‘Community of care’ (direct stakeholders) ‘Local community’ (indirect stakeholders) ‘Wider community’ (the public) A multiplicity of groups and networks (same employer, member of Facebook group, …) A ‘perception of connectedness’, an attitude of solidarity

Community justice Restorative justice Handling particular criminal ‘cases’: ‘what happens to victim and offender?’ Strategy at individual level: participation, procedural justice ‘Works’ when key actors experience satisfaction (process and outcome) Restoring communities Collective experience: ‘what happens to the community?’ Broader strategies, including crime prevention: to improve community level where this has been damaged by crime ‘Works’ when quality of live in a given place improves Transforming communities (A. Crawford)

Working with the community in practice How to address and redress social harm (besides personal and relational harm)? How to empower the community (besides victim, offender and their communities of care)? How to build societal support for mediation and other restorative justice programmes? The role of community volunteers and community organisations – intermediate structures The role of schools and other educational settings Public awareness and information, and the role of the media

Towards a ‘Restorative City’? Objectives: To build expertise on non-violent dealing with conflict into society Developing knowledge, attitudes and skills amongst citizens Strategy: Identifying ‘interactive settings’ in various societal contexts (e.g. neighbourhoods, schools, public administrations, enterprises, sport clubs, civil society organisations) Setting-up pilot projects in some of these organisations (action-research: evaluating the process of development and the effects) Looking at opportunities for generalisation Ongoing: Making mediation programmes (civil and criminal context) available and accessible Public campaigns and support from local authorities http://www.tedxleuven.com/speakers

Conclusion Mediation – if it wants to be effective - is much more than applying a measure at the individual level or solving a conflict at the interpersonal level Mediation is also about a culture: how to look at conflict and crime in personal, family, relational, social and work environments Penal juvenile mediation programmes should reach out much more to their communities Penal juvenile mediation actors should think about their own professional and organisational cultures