Transcript Slide 1

Presented by Dr Michael King, Senior Lecturer, Faculty of Law
Promoting a Healthy
Workplace Culture: A
Restorative Justice
Perspective
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.
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.
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.
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
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
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
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
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.
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.
The Response of Restorative Justice
 Restorative justice uses processes that:
o empower parties in the resolution of their
conflict
o address the needs of the parties rather than
focussing on party positions
o promote party healing
o promote party reconciliation
o promote reparation being made
Restorative Justice and Wrongful
Conduct
 Restorative justice sees all forms of
wrongful conduct (including crime) as:*
o A violation of people and relations between
people
o Creating obligations and liabilities
o Requiring healing and the righting of wrongs
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, NonAdversarial Justice (Federation Press, 2009)
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.
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.
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
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
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.
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*
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*
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
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
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
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
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.
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.
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.
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.
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.
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”
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
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
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
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
Using RJ in Response to Workplace
Bullying
 Monash University has a three stage
response to reports of workplace bullying:*
1. Advice
2. Conciliation
3. Investigation and Determination
 An RJ process is consistent with this
response and formal conferences could be
used at stage 2 (if facilitator available)
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
Case Study – Using RJ in Response to
Bullying - 2
 The facilitator
o Identifies the people involved
o Speaks individually to the people involved to
o Ascertain the issues
o Develop a rapport with the parties
o Explain the conference process and what will
be required of the parties (eg, respectful
dialogue)
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
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.
Case Study – Using RJ in Response to
Bullying - 5
 Follow up
o Processes are put in place to ensure the
agreement is implemented
o 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.
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
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.
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.