Des Rosiers, Nathalie --- "Transforming Relationships Through Participatory Justice: a Report by the Law Commission" [2004] ALRCRefJl 11; (2004) 84 Australian Law Reform Commission Reform Journal 44

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Reform Issue 84 Autumn 2004

This article appeared on pages 44 – 48 of the original journal.

Transforming relationships through participatory justice: A report by the Law Commission of Canada

By Nathalie Des Rosiers*

Wherever there are people, the possibility of conflict exists. One of the ways we deal with conflict is through the courts and tribunals.

But over the past several decades some Canadians have become dissatisfied with how the formal justice system responds to conflict. Conflicts are framed in legal language, rather than in terms of how individuals experience them; remedies often do not provide adequate redress for those who have been harmed; and the process is frequently time-consuming, costly and confusing.

Frustration with adversarial courts and tribunals has spurred the rise of alternatives such as victim-offender mediation, sentencing circles, community mediation and judge-led settlement conferencing. These alternatives are usually grouped under two broad categories: restorative justice and consensus-based justice. Restorative justice refers to a process for resolving crime and conflicts, one that focuses on redressing the harm to the victims, holding offenders accountable for their actions and engaging the community in a conflict resolution process. Consensus-based justice refers to innovative methods of resolving mostly non-criminal conflicts. Because the participation of the parties in the resolution of the dispute is an essential part of both restorative and consensus-based justice, they can both be considered forms of participatory justice.

In November 2003, the Law Commission of Canada released a Report to Parliament titled Transforming Relationships Through Participatory Justice. The Commission’s research and consultations revealed that Canadians want choices for resolving their conflicts, and that many want to actively participate in the conflict resolution process. The Commission believes that participatory justice—with its emphasis on the reconstruction of relationships through dialogue and on outcomes developed and agreed to by the disputants themselves— responds to this need.

The challenge, as the Commission sees it, is for governments and civic institutions to find ways to support participatory justice without limiting its innovative potential. At the same time, governments must recognise that there are risks associated with these programs—for example, weaker parties may be vulnerable to exploitation—and measures must be taken to protect the rights of all parties involved in the conflict.

This article will examine innovative methods of conflict resolution in the civil and administrative law systems.

Growth of consensus-based justice

Over the past two decades there have emerged a number of promising alternatives to the adversarial processes that have ‘consensus’ as a core value. Most work described as consensus-based justice occurs in relation to conflict outside the criminal sphere, for example, family mediation, community mediation, administrative tribunals, civil court-connected mediation; landlord-tenant disputes; and facilitated dialogue around environmental and other types of policy-making. Just as we have seen with the development of restorative justice initiatives, some of these programs operate inside the formal justice system, and some operate outside or are loosely connected to it. A number of emerging practices illustrate this approach, and some examples are described below.

Whether in commercial litigation, bankruptcy, landlord-tenant disputes, administrative law, family law or other areas of non-criminal law, the growth of consensus-based justice processes in Canada over the past two decades has been remarkable. Consensus-based justice shares many similarities with restorative justice, including the conditions that led to the development of alternatives to the formal justice system.

A factor in the rise of consensus-based justice is the gap between the needs of disputants and what the formal justice system offers them. Parties to commercial arbitration, private judging and online dispute resolution, for example, seek outcomes to business conflicts that recognise the conventions of business practice, that are developed by adjudicators familiar with these conventions and the impacts of conflicts on commercial operations, and that can be implemented without unnecessary delay or cost. Similarly, some couples are bypassing court procedures to formalise their separation, whether for financial reasons or simply because they are dissatisfied with the animosity divorce proceedings frequently generate.

The cost of legal fees and the investment of time required to bring a civil action to trial are significant factors in the rise of consensus-based justice initiatives. There has also been growing awareness of the other costs of a more adversarial process: lower productivity and workplace morale, for example, or weakened mental health and family stability.

Objectives of consensus-based justice

The discussion that follows describes four key value-based objectives for consensus-based justice. The model of consensus-based justice presented here is not simply a descriptive model for negotiation within an adjudicative context. The concept of consensus-based justice draws on a set of objectives, including a desire to fashion consensual outcomes that meet individual needs; the inclusion of individual disputants as direct participants; and a focus on the relationship dimensions of the conflict, both present and future.

Clarification of the wrong and an appraisal of its impact: From a consensus-based justice perspective, the first step in conflict resolution is clarification of the wrong, rather than attributing it to or blaming someone. The relevant question becomes: “What happened here?” rather than: “Whose fault was it?” This implies an exploratory and investigative element in the dialogue, as well as an appraisal of the actual impact of the harm done by the act.

A consensus-based justice approach emphasises negotiation strategies for creating power with rather than power over outcomes. Where negotiations anticipate an outcome developed by the parties themselves, rather than one in which there is a clear winner and loser, the purpose of information collection is clarification. Instead of being for winning, information is sought and disclosed to build a better collaborative outcome for the parties. This does not mean that tensions do not arise. Nevertheless, in consensus-based justice processes—such as mediation, settlement conferencing and collaborative lawyering— the ability to identify and share information that is essential to early resolution is a critical skill.¹ Moreover, personal, business, practical and emotional issues can be factored into solutions that might include future business arrangements, monetary settlements, an apology or an acknowledgment of responsibility or of unintended impact, or the bestowal of some other valued outcome by one party on the other.^[2]

Distribution and assumption of responsibility: The parties in a consensus-based justice process assess who assumes responsibility for the harm, or for which part of the harm, caused by the conflict. A degree of flexibility over the distribution of responsibility is possible in a consensus-based justice process. This type of flexibility does not always exist in a conventional litigation model. A consensus-based justice approach to conflict enables factors to be taken into account in responsibility allocation beyond what formal rules of law might suggest.

In consensus-based justice processes, which are concerned with positively impacting actual and perceived relationships, responsibility-taking is important, but it is not a win-lose proposition. In other words, there is no given volume or depth of responsibility that must be assumed by one party. Responsibility is divisible, and it need not add to up 100%. The parties can negotiate what responsibilities each had to the other and how these may have been broken, assess the factors relevant to that breach of expectations (including, for example, factors beyond one or the other’s control), and eventually determine how much responsibility each must assume and what is the acceptable measure and tone of regret.

Relationship transformation: Ideally, participants in a consensus-based justice process work towards a common goal: the transformation of the relationships that were damaged or broken by the conflict. Transformation refers to a range of possible outcomes, from reconciliation to future avoidance. The important point is that the negative energy that fuelled the conflict is confronted and addressed, even in the most pragmatic of ways (for example, by preventive steps and avoidance).

Some argue that the central objective of consensus-based justice processes is to significantly change a relationship, whether or not the conflict is actually resolved. This approach acknowledges that different parties in different circumstances may seek different levels of resolution for their conflict and that none is proscribed or prohibited in a party-driven consensus-based justice process. The model of consensus-based justice proposed here—and which we suggest has the most widespread currency among the many and various manifestations of consensus-based justice—does not assume that the only good outcome of conflict is a better, or at least significantly changed, relationship between the parties, regardless of whether the conflict has actually been addressed and resolved between them.^[3] What is highlighted is the importance placed on relationships, as both a symptom and a cause of conflict, and the need to offer process opportunities to the parties to enhance this (business or personal) relationship.

Moving forward: Consensus-based justice processes encourage disputants to look to the future, beyond the conflict that is presently consuming them. First, the clarification and appraisal stages of the process are designed to ensure that the parties can move forward to consider the future, including their future relationship, whatever form that might take. Second, the outcomes of consensus-based justice processes anticipate future issues and even conflicts and attempt to address these in a pro-active, realistic manner. A good example of this is the difference between an order for custody and access made by a family court judge and the types of detailed, context-specific agreements that may be reached as a consequence of family mediation or collaborative lawyering; or the potential for structuring commercial agreements to enable structured payments, rather than the single judgment order of a court.

Third, consensus-based justice sees the process of dialogue and resolution itself as a rehearsal for the future, whether involving these parties and issues or another context of conflict resolution. The emphasis placed on a fair, accessible and constructive process of dialogue by consensus-based justice models is not simply instrumental, achieving a given end; it anticipates a future in which other conflicts will need to be addressed and offers some tools for that future.

The Law Commission’s recommendations

The Law Commission of Canada recommends that governments continue to actively provide participatory processes to resolve conflicts within their institutions, in their disputes with citizens and when they provide conflict resolution services, such as in the court system or in administrative tribunals.

The Commission believes that participatory processes are a positive development for our justice system. They represent a way of engaging Canadians in the resolution of their conflicts and offer many benefits. After study and consultation, the Commission believes that they ought to be encouraged in all sectors provided that there are appropriate safeguards and awareness of the potential abuses that could occur.

The Commission advanced 17 recommendations for how to improve the conflict resolution process in Canada. The Commission recommended that governments adopt a proactive role to facilitate the development of participatory conflict resolution initiatives. The Commission recommended that law societies and judicial associations should provide training for their members to encourage them to use consensus-based processes. The Commission also recommended that provincial law societies review their codes of professional conduct to ensure that the role of the lawyer as an advocate in consensus-based justice processes is adequately anticipated. They should ensure that lawyers are charged with a duty to discuss alternatives to adversarial justice with their clients; that lawyers are alert to the vulnerability of some clients in such processes and take steps accordingly; and that counsel understands the basis of effective participation in such processes, including the duty to respect confidentiality.

The core of the Commission’s recommendations are 12 guiding principles for the design of participatory processes that programs offering consensus-based justice processes should reflect.

Twelve guiding principles for the design of participatory processes

Early intervention: The earlier that non-threatening, constructive, participatory interventions can be made, the more likely that a conflict may quickly de-escalate.

Voluntariness: Genuine voluntariness seems to be more than a desirable principle in the design of participatory processes; indeed, it is fundamental.

Opportunities for face-to-face dialogue: A key design principle for participatory processes must be the creation of opportunities for face-to-face dialogue in which personal experiences of justice can be created.

Confidentiality: Good practice suggests that participants read and sign a written statement before they begin a process. Ideally, confidentiality is discussed during the intake and preparatory stages.

Relevant and realistic outcomes: Outcomes should be relevant and realistic and, if possible, durable. This is important for the credibility and long-term viability of participatory processes

Efficiency: Participatory processes must be able to demonstrate efficiency, measured in terms of economic costs as well as social costs.

Accessibility: If participatory processes are to be utilised, it is critical to design them to be easily accessible, user-friendly and not overly bureaucratic

Careful preparation: A critical part of preparation is considering what documentation and other material needs to be made available to all participants before a meeting.

Advocacy and support: Program design should ensure a clear place and functional role for supporters who may be lawyers, family members, friends or others who might provide advice and offer emotional support throughout the process.

Fairness: While outcomes should be ‘what matters’ to the individual participant, a balance needs to be struck between community autonomy, personal self-determination and the regulatory role of the state and the need to scrutinise judicial proceedings.

Systemic impact: Participatory processes move decision making into the hands of individual disputants and their communities.

Flexibility and responsiveness: Programs should foster a spirit of responsiveness and respect for the circumstances of each conflict. Rigid structures that unnecessarily reduce participant choices should be avoided.

Achieving a culture of participatory justice

The capacity of citizens to participate meaningfully in the democratic process poses challenges for the design of public institutions. Increasingly, Canadians are disengaging from these institutions, and in the process, becoming more sceptical about the government’s capacity to respond to legitimate expectations. The Law Commission of Canada believes that the growth of participatory justice models is consistent with citizen-centred models of governance. Participatory justice processes allow citizens to be part of decision making that affect their lives. In this sense, they contribute to a healthy democracy. The Law Commission’s report was designed to contribute to the development of a participatory justice culture rooted in democratic principles.

The challenge for governments is finding a way to support participatory justice processes without limiting their innovative potential. There are some tensions in this role for governments. On the one hand, there are pressures to create coherence and uniformity to prevent risks of malfunctioning of participatory processes. On the other hand, there is an even better case to be made to preserve the creative and innovative power of many participatory processes. We would not want to lose the ability to continue to respond creatively to the new problems that will confront our society. As citizens, it is incumbent upon us to recognise the delicate role that governments must play in the development and support of participatory processes. The solution to better conflict resolution will not come from governments but from the respectful and honourable participation of citizens in the resolution of their conflicts, through the many processes described in the Law Commission of Canada’s report.

* Nathalie Des Rosiers is the President of the Law Commission of Canada.

Endnotes

{1} See J Macfarlane, ‘Culture Change? A Tale of Two Cities and Mandatory Court-connected Mediation’ (2002) 2 Journal of Dispute Resolution 241; J Lande, ‘How Will Lawyering and Mediation Practices Transform Each Other?’ (1997) 24 Florida State University Law Review 839; and A Zariski, ‘Disputing Culture: Lawyers and ADR’ (2000) 7:2 Murdoch University Electronic Journal of Law. Note that in collaborative family lawyering, the retainer agreement explicitly requires full and complete disclosure of all relevant information.

{2} See, for example, D Lax and J Sebenius The Manager as Negotiator: Bargaining for Competitive Gain (1986); and C Menkel-Meadow, ‘Towards Another View of Legal Negotiations: The Structure of Problem-solving’ (1984) 31 UCLA Law Review 754.

{3} In contrast, some proponents of consensus-based justice would argue that only a significantly enhanced relationship is a satisfactory outcome and that the resolution of the original problem is far less important—a distraction even—from the real purpose of a participatory process. This is the argument made by RA Bush and JP Folger, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (1994), 33-78 and rebutted by C Menkel-Meadow in her review, ‘The Many Ways of Mediation: The Transformation of Traditions, Ideologies, Paradigms, and Practices’ (1995) 11:3 Negotiation Journal 217.