The language of " restorative justice " has begun to be used in the context of workplace issues only in the last few years.  While restorative justice processes in workplaces may seem a logical progression from restorative justice in the criminal justice, welfare and school systems, in practice this involves some complex theory, and changes in practice as well as language.  By changing the language we use we change the way we understand processes, and our sense of how and when they should be used.

For instance, as restorative justice has been introduced into schools, the language of one social movement has been used to categorise practical developments from several other social movements.  Processes such as community conferencing, peer mediation and dialogue circles are now frequently cited as examples of restorative justice (in schools). 

The facilitator of a Community Conference brings together all those affected by a difficult situation. Following a standard sequence, the facilitator invites the person who acted first in an incident to describe what happened, step by step. The person most immediately affected is asked next, followed by other people who have been affected.  Gradually, a common picture is painted in everyone's mind's eye. The group gains an accurate shared understanding of how conflict has spread through a social network, like ripples on a pond.  When this picture is complete, the group can begin to act collectively and constructively to improve their situation.

This generic process can also be used to great effect in workplaces. The challenge is to find the most effective language to explain this use of Conferencing. When decision-makers describe a problematic situation in a workplace, they typically use language that is significantly different ­from the language of restorative justice.  Indeed, the language of restorative justice can seem quite incongruous in many workplace situations. 

On the other hand, restorative language and/or processes can prompt insights into how organisations seek to resolve disputes and manage conflicts. Consider how so-called restorative processes compare with other procedures in the justice system. In the search for a single version of the truth, adversarial processes emphasise differences between the positions of disputing parties.  A single version of the truth is then presented in the form of a decision by the judge or jury.  In a workplace, a similar decision might be made by a senior manager, or the author of an investigative report. This decision formally resolves a dispute , but there is a side effect. A single version of "truth" emphasises differences and maximises interpersonal conflict between disputants.  In some cases this side effect has to be borne.  If a person is wrongly accused, for instance, an adversarial dispute resolution process can be the most effective safeguard of their liberty.  In other cases, however, the harmful side effects of an adversarial process may be greater than the benefits. 

A key claim about alternative dispute resolution (ADR) processes is that they generate less interpersonal conflict than adversarial processes .  ADR processes offer to minimise interpersonal conflict while resolving the presenting dispute(s). Mediation is generally considered the least coercive of the most common ADR processes, and the one in which disputing parties have the greatest degree of control. 

Confusingly, however, the word mediation has come to have two distinct meanings. The broad meaning of 'mediation' is (i) a category, containing those processes in which a third party assists people to resolve disputes in a non-adversarial manner.  In this usage, the word 'mediation' and the phrase 'Alternative Dispute Resolution' have much the same meaning. 

The narrower definition of 'mediation' is (ii) a specific process in which a third party facilitator assists a negotiation to meet the interests of the disputants as well as possible.  In their widely influential Getting to Yes , members of Harvard University 's Negotiation Project identified the core principles of interest-based negotiation as:

• separating the people from the problem;
• focusing on interests, not positions;
• inventing options for mutual gain; and
• insisting on the use of objective criteria.

A mediator assists disputants to negotiate such that they agree on as much as possible, and to agree to disagree on what remains. Many people trained in interest-based mediation and with professional mediating experience will observe that "mediation doesn't always work."  In some cases, it can be difficult to find any common ground between the parties.  Most notably, when parties to a dispute are in heated conflict, they tend to behave entirely contrary to the basic rules for successful negotiation . They:

• identify other people as the problem;
• cling to their own fixed positions;
• see no possibility of mutual gain, feeling they can only win if the others lose; and
• insist on their own subjective criteria.

Faced with such challenges, mediators can question whether there is something wrong with:

• their skills as a mediator;
• the mediation process ; and/or
• the attitude of the parties to mediation - since one simply can't get them to see reason! 

Common models of mediation most frequently prove inappropriate or unsuccessful where there is significant interpersonal conflict between parties.  An alternative explanation is that some other process altogether is required, a process with a significantly different structure .  To determine the appropriate structure, and to explain what case might be best suited to what process, we require an adequate tool to diagnose and distinguish situations of conflict.  This is where the theory and practice of " restorative justice " can help improve the theory and practice of dispute resolution and conflict management in workplaces . 

Recent developments in the language and logic of the restorative justice movement are instructive.  Early restorative justice programs in North America offered a process called victim-offender mediation .  Similarly, in New Zealand and Australia , Conferencing was sometimes categorised as a form of 'mediation,' but the inaccuracy of this terminology became clear for a very specific reason. Youth justice, cases were only considered eligible for Conferencing if an accused young person or people admitted their involvement in some offending behaviour.  In other words, there had to be no dispute about the basic facts of the matter. Strictly speaking, if there is no dispute, then dispute resolution is redundant .

In current popular usage among English speakers in various countries, the difference between a 'dispute' and a 'conflict' is widely understood as a difference in kind , not just degree.  A dispute is a contest over a specific set of facts .  It requires two parties, but there need not necessarily be negative feelings between them .  On the other hand, interpersonal conflict is a state, arising from some sort of opposition, in which those involved experience strongly negative feelings about one another .  Thus, m any situations that are commonly called 'disputes' in fact involve no fundamental dispute.  Other situations involve many disputes, but these can be understood as symptoms of deeper interpersonal conflict.  It is the underlying conflict that makes the situation problematic for those involved. This is the case in many workplaces. 

The feelings most associated with interpersonal conflict are the strongly negative feelings of anger, fear, and contempt.  When a group of people are angry, fearful and/or contemptuous, the immediate need is not that they negotiate .  Rather, the immediate need is that all the people affected have an opportunity to paint a detailed picture of what has happened in the past and how that affects the present.  Only then can they look collectively to the future, and perhaps negotiate. 

Having distinguished disputes and conflicts, we can distinguish three general approaches to conflict management:

• maximising conflict - an unfortunate side-effect of adversarial dispute resolution processes;
• minimising conflict - a deliberate negotiating tactic for non-adversarial dispute resolution, which works if those involved are prepared to seek agreement on as much as possible, and agree to disagree on the rest; and
• transforming conflict - an appropriate tactic where conflict has become more significant to those involved than have the details of any particular dispute.

These distinctions make it relatively easy to identify cases for which Conferencing is most suitable and cases for which mediation (narrowly defined as assisted negotiation) is the more suitable process.    In workplace applications as elsewhere, Conferencing:

1. expands the circle to ensure the participation of all of those affected by a difficult situation;
2. uses a formal structure which guarantees that participants deal with the evolution of the conflict in chronological sequence, with an initial emphasis on specific actions; and
3. requires very careful attention to all aspects of the Convenor's communication, such that the Convenor sets a baseline mood of concerned but calm interest and is not drawn into the conflict. 

The single most significant difference between the processes of interest-based mediation and of Conferencing is that:

• interest-based Mediation is generally not the most suitable process when people are in significant conflict, whereas
• Conferencing is designed expressly to deal with situations marked by significant interpersonal conflict. 

So, why should a government department or a private company pay someone to facilitate a meeting in the Workplace Conferencing format? The question challenges us to articulate the commercial value of the Conferencing process.  And this requires, in turn, a rethink of the underlying principles and the design of the Conferencing process. 

Most workplace conflict isn't associated with any single incident.  Workplace conflict most typically develops over time.  Rather than there being obvious 'victims' or 'offenders', people typically feel resentful and mistrustful about unresolved misunderstandings.  Gradually, other colleagues become drawn into the conflict.  When two colleagues fall out, every other colleague in that workplace must choose one of three tactics:

• side with one side,
• side with the other side, or
• 'stay out of it.

Pre-existing conflicts between groups can also manifest in a workplace. Two people may mistrust each other because they identify with different cultural groups that happen to be feuding.  The major harm and suffering may have occurred at some distant time, in another place, and there may be no clear-cut victims and offenders in the present.  Yet there is conflict.  And this conflict needs to be analysed accurately if we are to act constructively and create the circumstances for conflict to be transformed.

The causes and consequences of conflict fall into three general categories. Conflict may:

• arise from an undisputed and harmful act; and/or
• be associated with many poorly resolved disputes between individuals; and/or
• be a legacy of poorly resolved disputes between groups.

These situations are not mutually exclusive.  Conferencing can be suitable for addressing all of them. 

In sum then, the distinction between disputes and conflict points to the need for a range of processes if we are to resolve disputes and manage conflict in workplaces. Significantly, the distinction also makes it easier to choose the right process.

• If someone is accused of doing something that, by policy or law, must formally be dealt with, and if the accused clearly disputes that accusation, then the appropriate process is adjudication .  It should be understood, however, that a likely side effect of the adjudication will be that the conflict between those involved will be maximised. 
• If a dispute seems to have arisen from lack of clarity about the issues, and if the dispute seems to affect only two parties , then interest-based mediation may be appropriate.  A mediator can manage any minor existing conflict, and can minimise the emergence of new conflict.
• However, if there is significant conflict, then conflict transformation is required, and Conferencing may be appropriate.

Below is an example of how various processes can be combined into the one explanatory model.  The model merges concepts from ADR, from restorative justice , and from related fields of communication, organisational analysis and systems theory.  Some of these processes would typically be categorised as "ADR", others as " restorative justice " and others as simply "facilitation" or "communication." All of them are useful, sometimes in combination, for improving workplace communication.

 

SITUATION	DESCRIPTION	OPTIMAL PROCESS	THE THIRD PARTY.
An accusation which is clearly disputed, and which must, by law &/or administrative guidelines, be dealt with formally.	Clearly disputed accusation	Formal Fact-finding	.gathers and reviews evidence, then resolves the dispute by imposing a judgement.
A dispute arising from lack of clarity about the issues, & affecting two key parties.	Dispute between two parties	Assisted Negotiation	.. helps disputants resolve their dispute by clarifying/ reframing issues & so distinguishing: people from problems; where people want to be from how to get there; optimal ways of getting there.
Disputes a rising from lack of clarity about various issues, & involving more than two parties .	Disputes between several parties	Dialogue with Solutions	. structures out conflict and structures in cooperation with a meeting format to identify in sequence: general experiences; specific problems; optimal solutions.
Significant conflict associated with a harmful act about which there is no dispute ; &/or many poorly resolved disputes between individuals , &/or groups.	Specific conflict with no dispute or many disputes	Conferencing	.brings together everyone affected and helps participants transform conflict into cooperation by considering: what happened; how people have been affected; how best to improve the situation.
An individual is responsible for managing disputes and conflict in the workplace.	Challenges of managing disputes and conflict in the workplace	Conflict Coaching	.assists an individual to develop practical ways to resolve disputes and enhance conflict management skills, using a structure systemically to articulate goals & rehearse different options for achieving objectives.
General conflict between individuals and groups within a medium/large organisation or other community.	General conflict in a large organisation	Constructive Communication Workshop	.prepares & convenes a workshop where colleagues identify styles and systems of communication conducive to cooperation , then develop a plan for turning theory into practice.

© D.B. Moore 2005

The language of restorative justice and practical developments in the community and government sectors have provided a crucial stepping stone to developing processes that better resolve disputes and manage conflicts in organisations. 

Sections of this text have been adapted from David B. Moore David Williamson's Jack Manning Trilogy: A study guide , Sydney: Currency Press, 2003 and "Managing Social Conflict: The Evolution of a Practical Theory" in Journal of Sociology and Social Welfare XXXI, no. 1 March 2004

Case Studies

Copyright 2007
Victorian Association for Restorative Justice, Inc.
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