For many people experiencing a family breakup as a result of domestic violence, they look to the Family Law Courts for justice, perhaps not realizing this is not the venue where they will get justice.
The perpetrator of domestic violence often goes unpunished and for the victim going to Court there is some expectation that the Family Court system will finally give them that closure. Unfortunately it is an unlikely outcome as the Family Court system is there to resolve disputes between the parties when it comes to property and parenting matters.
It is not a place where the victim can expect that the perpetrator will be finally brought to answer for the harm they have done, with cases involving Domestic Violence the offender more often than not does not get punished, an AVO is in place to hopefully prevent further violence but often there is no justice for the victim.
Would Restorative Justice help?
Restorative justice is a system of criminal justice which focuses on the rehabilitation of offenders through reconciliation with victims, it is an approach to justice that personalizes the crime by having the victims and the offenders mediate a restitution agreement.
For some perspective courtesy of Mediate BC Blog restorative justice can assist not only in Domestic Violence cases but also with cases of breach of trust and fidelity. The author says… I have yet to mediate a family dispute that did not involve some kind of harm in addition to the very real and challenging problems confronting the participants. I suspect that this is true for you as well. About 15 years ago I was introduced to the idea that solving harm and solving conflict are two different things entirely.
The Justice Problem
How can we resolve the harm that occurred through accountability, amends and support? Here the person causing harm has moral obligation.
The Conflict Problem
How can we negotiate a mutual solution to the mutually agreed problem? Here there is moral neutrality.
I believe it is this difference in the moral status of the participants that creates the need for different and distinct processes.
In my experience, and according to the material I have read, any Justice Problem is going to make solving the Conflict Problem more difficult. The truth of this was painfully apparent when I was working with one couple.
I was helping this couple with a parenting and financial agreement. They had been separated for 1 year and were primarily communicating through their 9-year-old son. Their separation occurred after an extremely harmful verbal attack. The wife had committed adultery years earlier and they had managed to remain together despite not dealing with some of the key factors leading up to and resulting from the infidelity. She was beginning to show some of the same behaviours that had occurred last time and the husband freaked out. Both acknowledged that this was a terrible outburst and was unacceptable.
Due to his shame and guilt and justified anger at her newest betrayal of their marriage, and her fear and shame at his reaction and how she had triggered it, they had stopped talking to each other. As co-parents they did have many conflict problems they needed to solve, so some communication was required. Thus the inappropriate use of their son as a go between.
I was aware of this trigger event when we started dealing with the co-parenting agreement, but they initially told me they wanted a conflict-focused process geared towards getting the co-parenting agreement done. It quickly became apparent that the trigger event was looming large and it was a huge problem barring our way forward.
I tested to see if a restorative process would be possible to resolve enough of the Justice Problem (his outburst) to proceed with the co-parenting agreement. Was he willing to take responsibility for his actions and communicate this with her? Yes he was. He was horrified at what he had done and deeply needed to express this. Was she open to communication with him about this and to hear his apology? Yes she was, though for safety reasons she wanted it to be in written form and she wanted to be able to respond in writing. He was open to this process.
So I coached him on how to write a helpful apology letter and we worked through three drafts together. I delivered the final draft to her and sat with her while she read it. We talked some things through and then she went home to write her response. She shared a draft with me which was excellent and I passed that on to him and helped him process it. Both reported a significant sense of relief and resolution and an increased openness to communicate directly with each other.
We were then able to move towards completing the co-parenting and financial agreements.
This integration of a restorative process (dealing with the harm) with a conflict resolution process was able to get the participants unstuck and moving towards a better future as co-parents. There are many other methods and tools that restorative justice brings to Justice Problems that can help transform an intractable problem into a manageable one.
I often describe to my clients that they have a choice of what they want to deal with in a mediation with me. We can deal with the justice issues and then deal with the conflict issues, or we can just deal with one or the other.
Given that many family problems are tied into abuse or unhealthy family dynamics it is a regular occurrence that I will need to remind clients of that choice:
Are we seeking justice or are we problem solving?
Sometimes we shift between the two dynamically.
If given permission, I will always deal with the justice issues first. Often I don’t get permission to work with the justice problem, so other supports are required for the person who caused the harm and the person who experienced it (sometimes these roles are shared by all). This is why I like to have a team of legal, health and financial professionals to equip my clients to cope with the often complex and high value problems they bring to me.
How have you thought about the moral status of your clients and the role of harm in solving Conflict Problems?
How do you work to overcome the barriers that Justice Problems bring to solving family disputes?
Contact us with the form below for a free initial consultation to see if Restorative Justice Mediation is an option for you.