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Making Sense of North American and South African Differences in the Practice of Restorative Justice

Cultural realities in North America and South Africa influence the way practice is undertaken. In this article, Susan Sharpe and George Lai Thom explore how those differences impact the practice of victim offender mediation in those two contexts.
Introduction

Best practice is a widely shared value in restorative justice. Practitioners seek to achieve it, their agencies promise to provide it, and everyone else expects it. But what “best practice” actually means in terms of facilitator behavior has not been established or at least not broadly enough or persuasively enough to be endorsed as “best practice in restorative justice.”

Various combinations of judgments and skills are proposed as standards for facilitators to meet and for evaluators to look for, but there is not yet enough evidence to settle competing claims about what is essential for “best practice.” Some broad agreement exists, however, at another level, where basic perspectives are taken as givens. One seemingly persuasive tenet is that the restorative justice process, irrespective of the form it takes, must exemplify the core principles and values that define the field. Another is that the restorative justice process must be culturally appropriate for the people involved.

These convictions are usually expressed independently, in response to different issues. It is easy to accept each on its own merits, seeing them as separate criteria to be met in separate ways. At least, it was easy for one of us (Susan) to do that—considering each of them a fundamental requirement of “best practice” without ever considering them both at once. That changed when the two of us began talking about victim-offender mediation (VOM) in cases of violent or otherwise traumatic crime. (Authors’ note: In this article, the terms VOM, mediator, and mediation refer exclusively to such serious cases.)

It happened that Susan began taking specialized training for VOM, in North America, at about the time George began doing the same thing in South Africa. What she heard in her training courses was consistent with what both of us had learned through professional literature, conference presentations, and discussions with experienced mediators -- a combination of resources that had given both of us the same understanding of how VOM was generally done in Canada and the US.

As we understood it, VOM in cases of very serious crime required cautious approach, careful screening, in-depth preparation, and heightened attention throughout; cases often unfolded slowly as mediators helped participants ready themselves for an  emotionally difficult experience; most mediators framed their role as aiding participants on a healing journey, and some took an explicitly therapeutic approach. (This understanding might not have been correct, but it is what each of us had gathered from a variety of sources before we first talked about it.)

Susan embraced this approach and planned to emulate it in her work. George understood and respected it, but decided he could not take it to South Africa. For one thing, communication and transportation hurdles would make extra preparation meetings a luxury. In addition, the South Africans he worked with were generally more private than tends to be the norm in North America, and he believed a strong focus on emotional preparation would feel intrusive to them.

At the same time, George was adamant that VOM must be done properly and he insisted on resources he needed for doing it well. This paradox -- why his work could not be done the same way if he wanted it to have the same level of quality -- made us wonder about core principles and values in relation to cultural appropriateness. If “best practice” requires both, how do they fit together? Is it a simple translation, a change in one direction? Or does culture also have an influence on the core principles? Either way, how does the mediator determine which changes to make to achieve cultural appropriateness?

We had a chance to start looking more closely at that question in 2006, when Susan was invited to South Africa for other work. She stayed on to learn more about how George’s practice differed from VOM done in North America and spoke with several other South African mediators who had done a few serious cases each. This article briefly summarizes what we observed and suggests potential implications.

Two caveats are important: this discussion is based on a very preliminary exploration, not on an empirical comparison of matched variables. Susan did interview participants from many of George’s VOM cases and she talked with other mediators who had handled a few cases each, but only to get an overview of VOM in SA and to help her better understand what George was doing differently and why.

Second, we have framed this discussion as a comparison of VOM practice in SA and North America, knowing that this frame obscures much of the reality. It glosses over differences in VOM practice within each of the three countries, and between Canada and the US, and ignores how much they have in common. This is the equivalent of an aerial view, suitable because our aim is not to document actual practice on the ground. Our purpose is to point out a pattern that is more visible from that distance, calling attention to the need for proper research on the ground.

Differences in North American and South African Perspectives


As we scanned the major features of VOM in North America and South Africa, several differences stood out in relation to policy, participation decisions, and preparation.

Corrections Policies
Most VOM takes place while the offender is incarcerated and therefore requires assistance from the institution where the person is held. About one-third of states in the United States allow VOM for incarcerated people, but only when requested by that person’s victim; this protects victims’ right to privacy from further intrusion by the offender. Canadian policy allows for VOM cases originating with offenders, but only if the request is forwarded by institution staff who see it as an appropriate option for the offender and screened through a national corrections office. In those cases, the invitation is made through someone already known and trusted, such as a victim advocate. In contrast, all of the South African cases we looked at were offender-initiated, stemming from prison programs where people learned about restorative justice and then wanted an opportunity to make amends for their crimes (typically aggravated assault, rape, or murder). By and large, those overtures were generally welcomed, even by victims who opted not to participate.

A second policy governing VOM in North America is that offenders may not receive any benefit in exchange for participating in VOM. Consistent with the principle of voluntariness, offenders, like everyone else, are expected to participate for their own reasons and take their own benefit from it. North Americans like this policy because it reduces the risk of offender manipulation and frees victims from any concern that their choices might help or hinder the offender. But the policy was perplexing to people we mentioned it to in South Africa, where participation in victim-offender dialogue is broadly seen as an appropriate basis for early release. In our conversations about this difference, people asked, “Why would there be a policy against recognizing someone’s effort to make amends?” More to the point, “When someone has had a change of heart, why would you keep them in prison?”

Participation Decisions
Voluntary participation is as strong a VOM value in South Africa as in North America, but the value is expressed differently. In both, it is common for an entire family to join the initial meeting to learn about VOM. They may discuss risks and benefits, but eventually each family member decides, “Yes, I’ll do it” or “I’m not going to.”

In South Africa, there is often just one decision for the family -- “Yes, we’ll do this” or “We’re not interested” -- a decision sometimes reached by the group and sometimes made by the head of the family. This difference plays out in the number of people who take part in facilitated dialogues. In North America, these meetings often involve just one or two victims and the offender. In South Africa, they typically bring half a dozen or more people to talk with the offender as a family unit.

Purpose
In North America, victims in a VOM often want to get answers to their questions or convey the full extent of the harm; offenders often see it as a way to help the victim, and perhaps also for their own psychological or spiritual benefit. Mediators typically describe VOM as part of a healing journey.

Clearly South African victims and offenders have those same needs and motivations, but their primary reason for participating is relational, not personal. They saw VOM as a vehicle for reconciliation, and reconciling was the right thing to do. In case after case we heard people stressing the value of mediation because “It is so important to make peace.”

Readiness
In Canada and the U.S., professional literature and training programs stress that “best practice” involves helping both parties prepare themselves for meeting each other, both to reduce their emotional risk and to help them get what they want from the encounter. Typically, this means at least one more session with each party, often several, to help them identify their goals and fears and to plan strategies for dealing with a range of possible scenarios. Most of the South African cases we looked at had no additional meeting between the decision to participate and the joint session between victims and offenders.

Reasons for Differences

Why do these differences appear? Victims and offenders have the same range of needs, motivations, and preferences in both cultures. Yet practice and policy address only part of that range. In both cultures, for example, there are victims who need to feel safely out of offenders’ reach and other victims who need to hear a self-generated apology from the offender. In both cultures, there are offenders motivated by remorse and other offenders motivated by self interest. Why do VOM practice and related policies favor meeting some needs over others, or supporting some motivations at the expense of others? And why are different priorities chosen in different places?

Looking for reasons why South African and North American policy and practice have evolved differently focused our attention on other differences between the two cultures -- primarily differences as to which values are primary. For example, offender-initiated VOM is probably permitted by authorities and welcomed by victims in South Africa because of the strong cultural expectation that someone who has done wrong must come and apologize for it. North Americans have the same belief, in principle, but not the same expectation that it will govern behavior. A rape case we looked at was reported to the police only because the offender’s parents failed to apologize to the victim’s parents for what their son had done. Another victim -- a man who was permanently disabled in a shooting -- refused mediation because the offender had never phoned or written to apologize.

South Africans’ willingness to reward VOM participation with early release from prison is consistent with the strength of another cultural value -- forgiveness. Forgiveness is also a strong value for many North Americans, and many victims would be glad to see their offenders released. But many others reject the notion of forgiving their offenders, and probably the majority struggle with conflicting feelings and expectations (their own or others’) about whether or not to forgive. Certainly South Africans sometimes refuse to forgive, and people there may struggle with it too. But the rightness of forgiveness is imbued in the South African culture and forms a powerful social norm. The strength of this value does not mitigate the strength of participants’ pain, remorse, or expectations of accountability, but it does provide a point of reference that surfaces easily and often in people’s comments about why they see VOM as so valuable and why they choose to participate in it.

South Africa has a communitarian culture, where people live their lives within a framework shaped by extended family and community. Making joint decisions about participating in VOM and participating as a family unit are consistent with that framework. People live independent lives, but that independence still operates within the orbit of surrounding relationships. Canada and (especially) the U.S. have individualistic cultures, where people are more likely to structure their lives around personal goals. Many people seek and have strong bonds with family and community, but such bonds tend to be considered a luxury rather than the default stereotype, and assumed to be less important than financial or professional goals in influencing major life decisions. Thus, North American practitioners tend to be startled on hearing that families often make joint decisions about whether to participate in VOM (and disapproving of allowing such decisions to be made by the head of the family and imposed on other family members). Individual autonomy is highly prized enough that specifying each person’s voluntary participation would be redundant.

The difference we saw in purpose is also consistent with other aspects of the two cultures. Both Canada and the U.S. are western societies, favoring individual goals and encouraging self-sufficiency and personal achievement. In that context, and particularly given that serious crime usually has a serious impact on the victim’s life (as well as the offender’s), it makes sense that personal healing would be VOM’s primary purpose in North America. It equally makes sense that reconciliation  would be a primary purpose in South Africa’s communitarian society, where people prize their connections to family and community, and where people live in such close quarters and have to rely on each other to such an extent that maintaining good relations has to be a priority.

As we look at these differences, what stand out are the assumptions shaping the choice of priorities. Mediators and policy makers in  South Africa and North America are making different assumptions—based on good evidence— about what participants are likely to experience (from each other or from the VOM process) and about how they will interpret that experience. Will they find something intrusive or compassionate, respectful or disrespectful, or supportive or controlling? Those assumptions yield different judgments about how to manage risk and help participants achieve their goals and, therefore, different policies and different process decisions.

Conclusion


We see these differences in VOM practice as markers of differing assumptions (and thus predictions) about what participants might experience and what significance it might have for them, which in turn reflect primary values that help to define the two cultures. If that is the case, what might it say about best practice?

We see three implications. First, it would indicate that cultural appropriateness is not simply an add-on, i.e., not a matter of translating (parts of) a process into a different format or bringing into it something derived from local tradition. Nor is it primarily an admonition, a reminder that mediation should be made culturally appropriate when introduced in a different culture. Instead it seems more of an observation that best practice is appropriate to the culture where it serves. In other words, culture shapes practice everywhere, not only when it is imported from somewhere else. This means that standards for best practice must be culturally contextual.

Second, the influence of culture needs to be recognized and accounted for in efforts to define best practice—not only for the sake of sound theory and stronger research, but also to guide practice choices. If standards for best practice depend on cultural context, then mediators and their evaluators need more guidance in how to assess the expression of core restorative justice principles and values, in order to know when and how to adapt some form of the process and when to preserve some form, even though it is unfamiliar, for the sake of fidelity to that core.

Third, this is a reminder that cultures differ within North America and South Africa as well as between them. George works primarily in crowded townships and isolated villages where people are marginalized, and where large numbers of people are poor, illiterate, and unaccustomed to professional intervention that probes their emotional lives; he practices differently from other South African mediators because he grew up in the same kind of similar community in South Africa and understands how people living there see the world, including VOM opportunities that come knocking on the door. He knows that VOM for urban South Africans, who are increasingly westernized, might resemble North American VOM more closely than it would his current practice.

Canada and the US also contain communitarian and other kinds of communities with different priorities, where VOM needs to be practiced differently from the way it is in mainstream communities.

Finally, this observation of the link between “best practice” and culture suggests reasons for VOM practitioners -- and presumably others -- to be more mindful of how culture has shaped their own notions of best practice. Awareness that “bad” practice in one place might be “good” practice in another might help facilitators anchor their practice in attentiveness to participants needs, allowing their convictions about best practice to be more porous.


Susan Sharpe and George Lai Thom
November 2007

This article originally appeared in Justice Connections: a joint publication of NAFCM, PRASI and VOMA. 4(Spring):1, 14-16.  It is reprinted here by permission.

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