It is here that one finds all kinds of encounter programs tailored to meet the needs of all kinds of participants. It includes programs for cooperative offenders whose victims are uncooperative (and vice versa), and programs for victims and offenders who are cooperative to a degree, but who do not wish to meet with each other. In other words, although typical encounter programs are available, other programs have been created to deal with circumstances in which the usual prerequisites for those encounters are not present.

This flexibility reflects the Network’s commitment that all offenders and victims willing to participate in restorative encounters will be given the opportunity to do so. This includes the possibility for the participants to design their own cooperative process using resources available in the Network. Even parties whose cases have entered the adjudicative process may move to a cooperative program. If the encounter takes place prior to sentencing, that agreement becomes the presumptive sanction and is delivered to the official who referred the matter. If the encounter takes place after sentencing, that agreement is referred to the sentencing judge as a recommended sentence modification. There is a presumption that the judge will accept that modification. The judge or other official who receives the agreement may send it back to the cooperative process with recommendations for changes for reasons of proportionality.

A copy of the agreement is sent to the Monitoring Committee, which enters the details of the crime and the agreement into their database. This database is analyzed on a quarterly basis to consider whether agreements are reasonably proportional to those agreements arising out of other crimes, as well as to sentences imposed by judges at the conclusion of adjudicative proceedings.  If there appear to be regional or other disparities, the Monitoring Committee will recommend corrective measures to the Steering Committee.

In the pages that follow are descriptions of the typical and atypical processes available to victims, offenders, and their communities within the Network’s cooperative processes.

Typical Processes

The standard processes for resolving criminal cases are restorative dialogue programs. The decision about which process to use is made jointly by the parties and the magistrate responsible for the investigation or someone to whom that responsibility is delegated.

In general, all cooperative processes include four key elements. The first is advance preparation of all the parties, done by the facilitator(s). The second is communication between the parties about what happened, why it happened, how it affected the parties, what their needs are in the aftermath of the crime, and what the available resources are. Third, this communication concludes with an agreement between the parties about how the identified needs will be addressed. These agreements may include restitution, apology, community service, participation in reintegration programs, and/or anything else that the parties feel is necessary and useful. Finally, each of the parties is asked to prepare a confidential evaluation of the process using questionnaires prepared by the Monitoring Committee.

Although these are common elements, the typical processes are used flexibly and adjusted according to the needs and desires of the parties.

Customized Processes

If some parties are willing to participate in cooperative processes, but others are not, the Referral Department refers those who are willing to programs that offer some of the benefits of the cooperative process, while directing the unwilling parties to adjudicative processes. Following are some typical scenarios and how the cases are handled:

1.      When the victim is willing but the accused person is unwilling. In these circumstances, the accused is referred to adjudicative processes, although it is always possible to return to the cooperative processes if the accused reconsiders. The victim, meanwhile, is offered help in identifying needs and the resources to address them. Among other resources is the option of a healing process with an alternative offender. An alternative offender is one who has offended in approximately the same way as the victim’s own offender has, but is not the victim’s own offender. A healing process is one in which all parties are encouraged to share their experiences and hurt, express their sympathies with the other parties, condemn the wrongs done, and recognize the humanity in the other parties.

2.      When the offender is willing but the victim is unwilling. The offender is referred to a cooperative process in which he meets with his community of care and any community or state parties necessary to discuss what should be done. A victim’s perspective may be represented in this process in one of several ways. First, the specific victim may appoint a representative to voice his views. Second, an alternative victim (similar to the concept of alternative offender) may be invited to represent the perspective of a victim of a similar crime. Finally, a victim advocate not associated with the specific victim may be invited to represent the views of victims in general.

In addition, the victims are offered the option of requesting reparation from the offender, receiving support services through the Network’s Community Building Sphere, being notified of developments in the offender’s case, and having no further involvement. If an alternative victim is not present in the cooperative process, the offender is offered the option of a healing process with an alternative victim.

Facilitators

The competency of the facilitator is an extremely important factor in the successful resolution of difficult cases. A wise and skilled facilitator can assist the parties in finding solutions to many of the problems seen in cases that are more complex. But even in simple cases, skilled and trustworthy facilitators are critical to the success of the restorative processes. Facilitators in RJ City are drawn from all sections of the community so that they bring awareness of and sensitivity to cultural, social, economic or other forms of diversity.

All facilitators are trained and certified by the Network. Training is done in different ways. The Hub offers certification classes that offer a thorough but simple, background in the basic principles and practices of restorative justice, the Hub’s coordination, and practical instructions on how to lead parties in redressing a simple harm. It also provides on-the-job training by assigning new facilitators to work with experienced facilitators.

Certified facilitators must participate in continuing education in order to renew their certification. At a minimum, come together on a regular basis to discuss the cases they have facilitated, the difficulties they have met, and to share possible solutions, based on restorative justice principles. In addition, facilitators may choose to participate in continuing or advanced training. This option allows facilitators to improve their skills in specific areas, such as situations with power imbalances, intimate crimes, domestic violence, drug-related crimes, large-group conferences, and any other complex subject.

The participants evaluate facilitators in every case. In general, these evaluations are used to help facilitators grow in their facilitation skills. However, if a significant number of the evaluations reveal a problem area in the facilitation, the facilitator may be asked to participate in remedial training or co-mediation. If a facilitator consistently receives poor evaluations and refuses to improve, that facilitator will lose his or her certification.

While the Hub will refer cases only to certified facilitators (or to programs that use certified facilitators), un-certified facilitators may mediate cases that come directly to them. These un-certified facilitators, however, must follow the same guidelines in reporting cases to the Hub as those who are certified.

The Hub refers particular cases to facilitators based on several factors: the physical proximity of the crime and parties to the facilitator, the facilitator’s specialization or lack thereof, and the facilitator’s availability or schedule.

The facilitator’s responsibilities in a case include monitoring the evaluation by the parties of the seriousness of the particular crime in comparison to the official declaration on its seriousness. If the two are different, the facilitator modifies the official declaration and invites different participants according to the needs of this particular case. The facilitator is also responsible for finding all the necessary participants, watching for power imbalances between participants and taking steps to correct them, making sure that the encounter is safe for all parties, writing the agreement, and following up if offenders default in fulfilling the agreement.

Some facilitators are community volunteers who give approximately three hours a week with a commitment of at least a year. Others are employed on a full or part time basis by the Hub or by a community program. In general, every effort is made to encourage volunteer and community participation in facilitating encounters. However, when a community lacks the resources (financial, professional, or volunteer) to provide adequately for itself, the Hub steps in and, as a last resort, employs its own facilitators to work in that area. Before the Hub employs its own facilitators and/or programs, it does all in its power to build and encourage community participation.

Record Keeping

In general, all infractions that are categorized as criminal are reported to the Hub, along with the records from the cooperative program through which the crime is processed. (See below for details on record keeping within cooperative programs.)

School-based resolution centres use their discretion in reporting less-serious actions that rise to the level of crimes, as long as the offenders are cooperative and complete the terms of their agreements on time.

Cooperative programs keep extensive records of the proceedings of every case. These records are considered confidential: only administrators of programs and facilitators working with the parties included in those records may access the files. These records include the following information:

1. The basic facts of the case as agreed upon by the parties. If the parties disagree on the basic facts, then each of their perspectives should be fairly represented. The facts include the personal, relational and ethical and moral harms, and the resulting needs as experienced by the parties.
2. Any changes made to the level of seriousness and an explanation of why that change was made.
3. A list of all participants in the process.
4. A general outline of the meetings. (e.g. Number of meetings, dates, times, and places.)
5. Any notes taken by the facilitator.
6. A copy of the signed agreement.
7. Any follow-up actions needed.
8. A certificate of completion of the process signed by the victim(s), the offender(s), the facilitator(s), and any other parties made necessary to the process by the seriousness of the crime.
9. Either a copy of participants’ written evaluations of the process, the evaluator’s notes on participants’ oral evaluations of the process, or a tape or video recording of the same.

Less extensive records of each case are sent from cooperative programs to the Hub. These records should include everything the program keeps except the facilitator’s notes and the parties’ evaluations. For each case, the Hub should receive

1. A summary of the facts of the case as agreed upon by the parties. If the parties disagree on the basic facts, then each of their perspectives should be fairly represented.
2. Any changes made to the level of seriousness and an explanation of those.
3. A list of all participants in the process.
4. A general outline of the meetings (e.g. number of meetings, dates, times, and places).
5. A copy of the signed agreement.
6. Any follow-up actions needed.
7. A certificate of completion of the process signed by the victim(s), the offender(s), the facilitator(s), and any other parties made necessary to the process by the seriousness of the crime.

Some records in cases involving adults are made available to the general public on request. These include the substance of everything that is given to the Hub, although participants other than the offender and facilitator may request that their names be removed from the list of participants and changed whenever mentioned in the other records. The terms of the agreement and an indication about the presence of a certificate of completion is made available instead of the actual documents.