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2 RESTORATIVE PRACTICES - A REVIEW

In this chapter we offer a short summary of the origins of Restorative Practices ( RP), beginning with an account of Restorative Justice ( RJ) internationally and then looking at how the idea and practices have changed when developed as Restorative Practices in education. We finally discuss the Scottish youth justice and educational context for the pilot RP projects ³.

2.1 Restorative Justice - the international context

There has been a major upsurge of interest in Restorative Justice in the last twenty years in Australia, New Zealand, Canada, the USA as well as in Europe and the UK. Some of the interest in Restorative Justice was generated by the significant increase in numbers of adult, youth offenders and children being imprisoned in industrialised countries. The UK, for example, now has the highest prison population in the European Union. At the same time as this international increase in prison populations an increased concern for the victims of crime has emerged (Drewery 2004). A further impetus internationally has been a retreat from welfare, from rehabilitative, needs-based juvenile justice in the face of a strong political critique of its effectiveness (Hallett and Hazel 1998; Walgrave 2005).

What is Restorative Justice?

Restorative Justice has taken different forms in different countries, depending on existing legal frameworks and contexts, but nearly all of the initiatives address issues in both adult and youth offending (Miers 2001). There is still no definitive theoretical statement on what constitutes Restorative Justice, although, for most writers the basic tenets centre on the importance of repairing harm and restoring relationships. The UN defines Restorative Justice as follows:

A problem solving approach to crime that focuses on restoration or repairing the harm done by the crime and criminal to the extent possible, and involves the victim(s), offender(s) and the community in an active relationship with statutory agencies in developing a resolution. The modes for delivering Restorative Justice include, but are not limited to, restitution of property, restitution to the victim by the offender, reparations…' (United Nations 2003: 28).

Conceptually it begins with idea that crime is fundamentally a violation against people and relationships (Zehr 1990). The most accepted working definition agreed among practitioners is perhaps that of Tony Marshall (1998):

Restorative Justice is a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of offence and its implications for the future.

The desired outcome is to repair the harm done to all who are harmed by offensive behaviour (Schweigert 1999). It:

holds the promise of restoring victims' material and emotional loss, safety, damaged relationships, dignity and self-respect (Hoyle 2002: 101).

Marshall (1999) describes the key features as:

• Making room for the personal involvement of those mainly concerned (particularly the offender and the victim, but also their families and communities)
• Seeing crime problems in their social context
• A forward-looking (or preventative) problem-solving orientation
• Flexibility of practice

As it developed in the criminal justice system, Restorative Justice sought to provide, perhaps for the first time, a much clearer framework for restitution, in which offences might still be punished, but within a context where the relationship damaged by the offence was the priority, and based on the premise that this damaged relationship could and should be repaired. The offending individual would be reintegrated for the good of that individual but also for the community as a whole. At the level of practice, Wachtel (2005) has suggested that this relational approach can only be made effective when fair process is observed. He refers to the 'social discipline window' (below) adapted from Glasser (1969), to show the importance of involving individuals in decisions which affect them directly, and the central importance of working with them, rather than doing things to or for them.

Figure 1 The social discipline window (Wachtel 2005 after Glasser (1969))

In the social discipline window, the vertical axis refers to the use of authority, with high control referring to 'punitive'/authoritarian responses. The horizontal axis refers to support; high support without control is 'permissive'/neglectful. According to Blood and Thorsborne, 'practice which maintains high standards and boundaries at the same time as being supportive is experienced as firm and fair (the top right hand box; working with others)' (2005: 10). This has resonance with ideas and concerns in UK juvenile justice/social work about care and control (Lloyd 2000). Restorative approaches nicely balance these in a model offering both.

Mediation

Mediation is not universally considered to be an element of Restorative Justice, indeed some within the Scottish mediation movement feel that mediation and RJ are quite different, although compatible approaches. However most key conceptualisations of RJ internationally clearly include mediation (McCold 2003; Walgrave 2003). Indeed Howard Zehr's influential theory developed out of mediation practices focusing on the interaction between victim and offender.

Conferencing

Conferences have developed in a range of different forms, including family group conferencing, police conferencing and community conferencing. Family conferencing is based on empowerment and is child/offender centred. The key decision makers are the family and the role of the victim is much less significant than in mediation. Police conferencing has often been premised on the view that offenders will be affected by being shamed by those closest to them, as long as the focus is on the behaviour and not the individual offender. Community conferencing, also known as community justice conferencing, has been used to resolve problematic behaviour throughout society, schools, workplaces and neighbourhoods, alongside the criminal justice system.

In many of these different kinds of conference, a 'script' is used by a trained community volunteer, professional facilitator or co-ordinator, using the following or similar questions,

Figure 2 Conference Script

These questions are asked of all involved and each participant has the same opportunity to speak. In the UK in general this conference or circle has not taken the place of any punishment imposed by the courts, but sits alongside it, with participants involved voluntarily in the process. However, the Home Office in England has recently piloted its use as diversion from court (Justice Research Consortium 2004).

2.2 Critical Issues and Tensions in Restorative Justice

In this section we discuss some of the tensions and issues that have been identified in Restorative Justice. These will be revisited and discussed later in relation to questions of the relevance of RJ to education.

Retributive vs Restorative Justice

Retributive justice 'should embrace the concept of punishment as the main activity of the state's response to crime' (Daly 2002:34). However, according to Duff (2002), the retributive response should be combined with the social constructiveness of restorative approaches that acknowledges both the victim's needs and the offender's responsibility. In this view punishment is the means. Restoration is the goal (Walgrave 2004). Clearly the complex relationship between Restorative processes and ideas of punishment will be a recurring issue in this report.

Restorative Justice as practice or as a set of principles?

Restorative Justice appears to be conceptualised in the literature in two different ways: as a process/practice, or more broadly as deriving from a set of values or principles. The question of how Restorative Justice should be envisioned, in terms of processes, values or goals, is both a critical and crucial issue in contemporary theory and practice (Zehr & Toews 2004). Many writers argue that principles and concepts provide the framework for practice and so it may be critical, particularly when introducing new practices, to be explicit about their aims and objectives, in order for evaluation, but also for the internal integrity of the practice. This, again, will be a recurring issue in this report.

Shaming

Braithwaite's (1989) distinction between 'stigmatising shaming' and 'reintegrative shaming', and his assertion that the former increases the likelihood of crime while the latter reduces crime, has also been influential. Shame, then, is seen as central to understanding and, importantly, changing undesirable behaviour at a macro and micro level. While Braithwaite's understanding of the more powerful impact of the view and feelings of family of peer groups rather than professionals seems valid, nevertheless this has been translated sometimes into an excessively strong emphasis on shame as central to Restorative Practice. Zehr has recently noted:

There are many concerns about the way we may be misinterpreting and misusing shame…The question is not how do we shame people, but what do we do about the shame that is there already? (Zehr 2005:299).

Individualistic focus

These concerns about the usefulness of the notion of shame link with a further critique of RJ, one that seems particularly appropriate when we come to look at its relevance for schools. Its development largely within the formal justice system means that it is premised on an individualistic model of behaviour and indeed on work with individuals who are already labelled as offending. Much of the work is located within an essentially psychological model of crime, with little emphasis on sociological understandings of the contexts of crime and the social construction of offending and offenders. This is discussed further in the section on education, where we review the range of research that focusses on the institutional context of pupil behaviour and on preventive strategies.

When is an intervention restorative?

One view is that the degree of restorativeness depends on the level of participation in the process. McCold and Wachtel maintain that the very process of interacting is critical to meeting stakeholders' emotional needs; therefore for practices to be most restorative all key stakeholders should be involved (McCold &Wachtel, 2004). However, often they may not all be present and therefore the practice considered by these writers to be only partly restorative.

Another issue is the question of intent versus outcome for participants. Wright (2003) argues that although pain may be inflicted in RJ, it is not punishment: punishment is dependent on the intention of the punisher not the experience of the punished. Other writers have drawn attention to the problematic nature of such a viewpoint; where a process intended to be restorative is nonetheless experienced as punitive, either by victims or offenders (Walgrave 2005; Blood & Thorsborne 2005).

Overall, Restorative Justice may offer a significant step forward in the search for actions that can be seen as resolution by both the offender and victim. However, it is also clear that there are some important tensions within RJ, to which we will return when we examine its direct transferability to the school setting:

• The competing conceptualisations of RJ as both a process/practice and as a set of values
• The centrality of shame
• The individualistic focus
• Differing views about how to assess the 'restorativeness' of an intervention.

2.3 The context for the pilot project - youth Restorative Justice in Scotland

Restorative Justice

Most Local Authorities in Scotland now have Restorative Justice projects that they see as complementary to the Children's Hearing System, but also sometimes as a diversion from formal processing. Practices include:

1. Those involving some level of communication between the person responsible for the offence and those harmed: Restorative Justice Conferences; Face-to Face Meetings; Shuttle Dialogue; Police Restorative Warnings

2. Those involving no communication between the person responsible for the offence and the person harmed: Support for Persons Harmed; Victim Awareness; Restorative Conversations.

(further discussion of these practices: www.restorativejusticescotland.org.uk/practices.htm).

A recent study of Restorative Justice in Glasgow (Dutton & Whyte 2006) identifies this as an additional option available to the Reporter to the Children's Panel, when they decide to take no formal action in relation young people referred. The evaluation considered re-offending rates and participant satisfaction. 71% of young people had not been re-referred to the Reporter on offence grounds within 12 months of a Restorative warning. 59% had not been referred within 12 months of a conference and 57% had not been re-referred within 12 months of completing a programme. However, interestingly 61% of those who failed to attend a programme had not been referred! (Dutton & Whyte 2006). The evaluators argued that while there was as yet no evidence to suggest that restorative interventions were more likely to reduce offending and re-offending than other forms of diversion or non-intervention, there was benefit in the incorporation of the victim perspective. Equally there was value in the high levels of satisfaction by all involved (Dutton & Whyte 2006). In addition, the evaluation revealed an issue of direct relevance to schools; that 21% of the offences had been committed during school hours by young people likely to be excluded or truanting (the remaining taking place outwith the school day).

There has been some debate as to the compatibility of Restorative Justice and the Children's Hearing System. McDiarmid, for example, argues that ' RJ is not overtly punitive but the best interests of the child offender are subordinated to the requirement that the harm caused by the criminal act should be repaired' (2005: 35).

Key concerns from the youth justice and welfare system in Scotland include

• the risk of net-widening, including children who would not have been formally processed, rather than dealing with more serious issues
• dangers of narrow victim-offender definitions in practice
• narrow definitions of RJ that explicitly exclude mediation
• issue of compatibility between youth justice approaches and school based developments.

2.4 From Restorative Justice to Restorative Practices in Education

The last ten years or so have seen the development of Restorative Justice in educational settings, partly in response to continuing concerns about discipline and violence in schools. Advocates such as Morrison talk about 'justice as a part of our everyday lives, and hence it also belongs in our homes and our schools' (2005: 97). Wachtel (2005) talks about the need to restore 'community in a disconnected world' and that the 'increasingly difficult and violent behaviour among schools students and related punitive school climate are both products of the alienation and loss of community that plagues modern society in general' (2005:1). As disciplinary exclusion levels in schools, both overseas and in the UK, continue to rise (Bouhours 2004; DfES 2005; Scottish Executive 2004) and as staff stress also continues to increase (Kelly & Colquhoun 2005; Munn, Sharp & Johnstone 2004), the calls to tackle bullying, truancy and youth crime become more insistent.

There have been a number of evaluations of different models of Restorative Justice in schools, both in England and overseas (McGrath 2004; Cameron & Thorsborne 1999; Smith & Hennessy 1999; Marsh & Crowe 1998). These evaluations have employed a range of methodologies and although some of these evaluations have been criticised for being less than rigorous (Miers 2001), there is, nonetheless, quite widespread evidence of success, particularly in terms of participant satisfaction.

The evaluations point to a diversity of practice labelled RJ; in early developments often involving only conferencing, usually with external facilitation sometimes by police or staff from criminal justice. In a smaller number of settings, at least initially, conferencing was combined with wider school based practices.

The largest independent evaluation in the UK to date, commissioned by the Youth Justice Board of England and Wales, has recently reported on a pilot initiative in which youth offending teams worked with 26 schools in England and Wales (Youth Justice Board 2005). The aims of the initiative were to reduce offending, bullying and victimisation and to improve attendance, largely through conferencing. The researchers concluded that Restorative Justice, while 'not a panacea for problems in schools', could 'if implemented correctly…improve the school environment, enhance learning and encourage young people to become more responsible and empathetic' (2005: 13). There is evidence that applying some of the principles and practices of Restorative Justice would seem to be helpful to address issues of discipline in schools. However there was little impact on some outcome measures such as exclusion. Similarly, there was found to be no significant improvement in pupil attitudes except in the small number of schools where a whole school approach had been adopted. Key critical conclusions included the observation that wider government support seemed necessary, that leadership was critical, that there was a lack of clarity as to what was meant by Restorative Conference and that the language of 'justice' did not transfer easily to the school setting. It is notable that the English projects often continued to use the terms 'victim' and 'offender'.

Restorative Conferencing in Schools

Significantly, in three separate studies in Australia, a focus on conferencing was found to offer high levels of satisfaction for wrongdoers and those harmed but to be difficult to sustain in practice (Blood 2006). Equally important, while the conferencing itself was seen as integral to the process, the successes of conferencing had minimal impact on the school community as a whole. Blood and Thorsborne (2005) argue that conferencing in schools can be seen as a 'restorative stick' at times while Porter (2005) has suggested that the threat of the use of Restorative Justice questions may in itself act as a deterrent. Although schools may try to 'focus on the thing that has gone wrong, rather than the person' (Porter 2005: 2), it is also important to note Drewery's finding from work in New Zealand, that 'unless they are used carefully [conferences] can be used to provide an audience for public retribution almost as easily as their intended goal of promoting mutual dialogue, understanding and restoration' (2004: 336).

A study by Preston (2002) of initiatives in special and secondary schools in Buckingham and Oxfordshire is one of the few published evaluations of Restorative Practices in schools in the United Kingdom and was specifically designed to inform practitioners and policy makers about the application of Restorative Practices. She too suggests that schools need to think carefully about RP as working at two levels, preventative and reparative.

2.5 From Restorative Justice to Restorative Practices in Education in Scotland

A number of Executive funded surveys of teachers' views, most recently in session 2005/2006, have concluded that teachers saw the majority of pupils as well behaved (Wilkin et al 2006). However there was a trend in teacher perceptions suggesting an increasing number of teachers encountering a wide range of potentially disruptive behaviour in the classroom and around the school. This was strongest in secondary schools although there was also some evidence of increasing difficulties for primary teachers. Low-level disruption continued to be the most wearing for teachers. Although there was an increase in the numbers of teachers reporting physical aggression by pupils, there is no evidence of a major problem of violence and aggression in Scottish schools. However this should not lead us to underestimate the difficulties faced by teachers in some circumstances. Gender is a constant dimension, with teachers finding boys consistently more challenging (Munn et al 2004; Lloyd 2005).

A major policy initiative was initiated in Scotland in 2002 as a result of the recommendations contained in the report of the Discipline Task Group, Better Behaviour, Better Learning. This Task group had been set up as a response to concerns from teachers' trade unions and others about apparently deteriorating standards of behaviour in schools. The report recognised the complexity of the causes of indiscipline and reaffirmed that it was seemingly low level behaviour such as talking out of turn and work avoidance which were the most prevalent and often the most wearisome for teachers. There was a striking similarity to behaviour encountered by School Inspectors in 1877! The report however also recognised that serious behaviour difficulties required more specialist intervention than that provided by the classroom teacher alone.

The report acknowledged a wide range of factors both within and outside school that affects the behaviour of pupils and therefore focussed its recommendations both on ways that schools can improve their overall disciplinary strategies, thereby reducing low level disruption but also on providing more effective support and intervention for pupils whose actions relate to difficulties in their families and neighbourhoods.

The Scottish Executive pilot project on Restorative Practices can be seen as part of this development; other initiatives have included rolling out and piloting of Staged Intervention/Framework for Intervention, Solution Orientated Schools, The Motivated School as well as the provision of large numbers of classroom/behaviour support assistants in classrooms; promotion of better inter-agency working/coordinated assessment; the strengthening of home-school links and the recent establishment of a Positive Behaviour Team to deliver staff development and promote the continued agenda of BBBL. All of these may be seen to be compatible with the projects on Restorative Practices.

2.6 Summary

This chapter has reviewed the origins of Restorative Practices by examining the literature on Restorative Justice internationally and how its concepts and practices have been translated into school settings in a number of countries. We then outlined the contexts for the RP pilot in Scottish schools; the youth justice system, the Children's Hearing system and current Scottish educational priorities and concerns.

The history and development of Restorative Justice have offered some key points that seemed to be useful to schools. These include:

• The importance of fair process
• The recognition of the rights, and involvement where possible, of all parties in dispute or conflict resolution
• The notion of restoration or reparation instead of retribution
• The importance of developing empathy for others in preventing and responding to conflict or violence
• The valuing of the views of all parties in open discussion
• The effectiveness of circles for exchanging views, expressing feelings or resolving issues
• The importance of the language (often scripted) used in addressing conflict and resolving disputes

However, many of the issues and tensions within Restorative Justice or Restorative Practice identified earlier have raised questions that are equally, if not more, challenging in educational settings:

• Is Restorative Practice a strategy or a set of values/principles?
• Is it for the whole school or only for pupils in difficulty or with challenging behaviour?
• Is it one tool in the toolbox or an overall approach?
• Is it about changing individuals or changing structures, systems or cultures?
• Does it work best if adopted as a whole school approach or when it can be shown that it works in one part?
• Are there issues about the use of shame - are boundaries between reintegrative and stigmatising shaming difficult to manage in school?
• Can Restorative Practices be developed in schools alongside more traditional sanctions and punishment?
• When is something restorative?
• What is being restored?
• How do we know?

In the life of schools, relationships are central. The structure of school life is based on social interaction, both constructive and destructive. It is complex and multi-layered, often fulfilling a range of purposes, and arising in a range of contexts. Criminal justice, whether it seeks to be restorative or not, can not take full account of the power relationships between people in their everyday lives; in education, however, there are embedded power relations between teacher and pupil, adult and child, school and home. The experience of schools implementing RJ to date suggests that the notion of 'justice' is not as useful to schools as it at first sight appears, although the ideas of fairness and participative process are clearly important.

As we shall see in the following chapters, the development of Restorative Practices in schools in Scotland (as indeed of Restorative Justice in the community) has drawn on theoretical traditions and understandings which differ from those often cited in the international literature, but it has often identified the same issues and tensions.

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