office of justice programs multicultural implications ... · appendix b. diversity .....25...

PotentialPitfalls

and

Dangers

Advocating for the Fair Treatment of Crime Victims

Office for Victims of Crime

ofMulticulturalImplicationsRestorative

Justice:

U.S. Department of Justice

Office of Justice Programs


Center forRestorative Justice& PeacemakingUniversity of Minnesota

April 2000

This document was prepared by the Center for Restorative Justice & Peacemaking(formerly the Center for Restorative Justice & Mediation) under grant number96–VF–GX–K006, awarded by the Office for Victims of Crime, Office of JusticePrograms, U.S. Department of Justice. The opinions, findings, and conclusions or recommendations expressed in this document are those of the authors and do not necessarily represent the official position of the U.S. Department of Justice.

U.S. Department of JusticeOffice of Justice Programs

810 Seventh Street NW.Washington, DC 20531

Janet RenoAttorney General

Daniel MarcusActing Associate Attorney General

Mary Lou LearyActing Assistant Attorney General

Kathryn M. TurmanDirector, Office for Victims of Crime

Office of Justice ProgramsWorld Wide Web Home Page

www.ojp.usdoj.gov

Office for Victims of Crime World Wide Web Home Page

www.ojp.usdoj.gov/ovc

For grant and funding information contactU.S. Department of Justice Response Center

1–800–421–6770

OVC Resource Center1–800–627–6872

OVC Resource Center Home Pagewww.ncjrs.org

The Office for Victims of Crime is a component of the Office of Justice Programs,which also includes the Bureau of Justice Assistance, the Bureau of Justice Statistics,the National Institute of Justice, and the Office of Juvenile Justice and DelinquencyPrevention.

NCJ 176348

Mark S. Umbreit, Ph.D., DirectorRobert B. Coates, Ph.D., Senior Research Associate

Center for Restorative Justice & Peacemaking(formerly Center for Restorative Justice & Mediation)

School of Social WorkUniversity of Minnesota

St. Paul, Minnesota

April 2000

PotentialPitfalls

andDangers

MulticulturalImplications of

Restorative Justice:


Advocating for the Fair Treatment of Crime Victims

NCJ 176348

Message From the Director

This collection of six documents covers a number of important issues related to restorativejustice. Four of the documents focus on victim-offender mediation, which is a major pro-grammatic intervention that fully embraces the concepts of restorative justice. The firstof these documents is the Guidelines for Victim-Sensitive Victim-Offender Mediation:Restorative Justice Through Dialogue, which assists administrators in developing orenhancing their restorative justice programs. It provides practical guidance for mediatorsto facilitate balanced and fair mediation, which will ensure the safety and integrity of allthe participants. The National Survey of Victim-Offender Mediation Programs in the UnitedStatescontains information about the characteristics of the various victim-offender media-tion programs operating nationwide and the major issues facing them in their day-to-dayoperations. The Surveydescribes the actual functioning of the programs, while theGuidelinessets standards for the practice of victim-offender mediation. Next, the Directoryof Victim-Offender Mediation Programs in the United Stateslists all identified victim-offender mediation programs in the country and provides their addresses, phone numbers,and contact and other basic information. The purpose of the Directory is to provide easyaccess for persons who would like to contact a given program. The Family GroupConferencing: Implications for Crime Victimsdocument discusses a related form of restora-tive justice dialogue that originated in New Zealand and Australia and has been replicatedin some communities in the United States. The Multicultural Implications of RestorativeJustice: Potential Pitfalls and Dangersdocument informs practitioners about concernsregarding the implementation of such frameworks when working with persons of cross-cultural perspectives. The sixth document, entitled Victim-Offender Mediation andDialogue in Crimes of Severe Violence,will be added to the collection late FY 2000. Itwill provide case study evidence suggesting that many of the principles of restorative jus-tice can be applied to crimes of severe violence, including murder. In addition, this docu-ment includes a discussion about the need for advanced training for persons working withvictims of severe violence.

The Office for Victims of Crime does not insist that every victim participate in victim-offender mediation, family group conferencing, or other restorative justice intervention.Such participation is a personal decision that each victim must make for herself or himself.We strongly advocate, however, that all restorative justice programs be extremely sensitiveto the needs and concerns of the victims who would like to meet with their offenders. Nopressure should be placed on victims to participate, for participation must be strictly volun-tary. Victims should be granted a choice in the location, timing, and structure of the sessionand a right to end their participation at any stage in the process. These protections for vic-tims do not mean that offenders can be treated insensitively. Both victim and offender mustbe dealt with respectfully.

We sincerely hope that restorative justice programs already in operation in probation orparole agencies, judicial agencies, religious groups, victim service organizations, community-based organizations, or elsewhere study these documents and embrace the victim-sensitive

Multicultural Implications of Restorative Justice: Potential Pitfalls and Dangers

iii

iv

guidelines that are relevant to their particular type of intervention. Restorative justice pro-grams can only be strengthened by operating with heightened awareness of the needs ofcrime victims.

Kathryn M. TurmanDirectorOffice for Victims of Crime

Acknowledgments

The Office for Victims of Crime (OVC) would like to offer special thanks to authors MarkS. Umbreit, Ph.D., Director, and Robert B. Coates, Ph.D., Senior Research Associate, ofthe Center for Restorative Justice & Peacemaking (formerly the Center for RestorativeJustice & Mediation), School of Social Work, University of Minnesota. We would alsolike to acknowledge the valuable contributions of review, consultation, and commentarymade by Ada Pecos-Melton, President, American Indian Development Associates ofAlbuquerque, New Mexico, and Oliver Williams, Ph.D, Director, Institute on DomesticViolence in the African American Community, University of Minnesota. Also, we wouldlike to acknowledge the valuable contribution made by Robert Schug, Administrative Aideat the Center for Restorative Justice & Peacemaking, who spent many hours preparing thedocument and responding to numerous requests for draft copies.

This project also benefited greatly from the contributions, guidance, and support of SusanLaurence, the Project Manager at OVC. This Restorative Justice and Mediation Collectionis the result of the efforts of many individuals in the field who generously shared theirmaterials and experiences with the Center for Restorative Justice & Peacemaking so thatvictims may be provided additional options in the process of healing.


v

Contents

I. Introduction ......................................................................................................................1

II. Restorative Justice: Scope and Framework......................................................................3

III. Restorative Justice: Program Adaptations ........................................................................5

IV. Potential Cross-Cultural Pitfalls and Dangers..................................................................7

Differences in Communication Styles ......................................................................7

Differences Among Cultures......................................................................................9

Differences Within Cultures ......................................................................................9

Racism as a Subset of Cultural Conflict..................................................................10

V. Ways To Increase Positive Interaction............................................................................13

Cultural Skills for the Restorative Justice Practitioner............................................13

Know Thyself ..........................................................................................................13

Get To Know the Participants ..................................................................................14

Prepare the Participants............................................................................................16

VI. Conclusion ......................................................................................................................19

Appendix A. The Case of a Community Reparation Board Meeting ..................................21

Appendix B. Diversity ..........................................................................................................25

Bibliography..........................................................................................................................27


vii


1

I. Introduction

“The hell you say. I won’t stand for it.”Banging the table with his fist, the Blackstore owner shouted, “You’re not gonna get off that easy!” The teenagedAmerican-Indian shoplifter cowered insilence. She worked hard to keep her lipsfrom trembling, and her stare fixed on anold picture hanging on the wall. With achurning stomach, the White mediatorworried that the entire mediation hadbeen torpedoed by the store owner’sangry outburst. The mediator tried tothink of a way to end the session withsome semblance of civility. Frustrated,the store owner looked with disgust atthe other two participants at the table.He wanted and expected a response, butthe other two individuals sat motionless.The store owner asked himself, “How canjustice ever come out of this situation?”1

This document examines concerns practi-tioners of restorative justice must keep inmind when working with people fromdifferent cultures. Efforts to addressthese concerns must deal with challengesfull of potential dangers and pitfalls.People from different cultures have dif-ferent ways of speaking and behaving. In addition, a person’s cultural milieu deter-mines his or her world view, perceptionof justice, and communication style(Myers and Filner, 1993). These differ-ences make the world interesting, butthey can also cause difficulties. Evenwhen all parties come to the table withthe best intentions, natural cultural differ-ences among cross-cultural parties caneasily lead to misunderstanding, destroythe best efforts at conflict resolution, and

1 This scenario is fictional and intended to be illustrative. Many terms are used in the United States to refer tovarious ethnic groups. Throughout this document, major ethnic groups are referred to as White, Black,American Indian, Latino, and Asian despite that individuals might prefer other terms.

end the hopes of restoring and repairingrelationships.

The following section provides a briefoverview of the restorative justice con-cept and a cursory glance at some pro-grams that attempt to apply restorativejustice principles. Discussions of pro-gram models that apply restorative jus-tice principles are then presented. Next,the pitfalls and dangers that may hamperrestorative justice efforts within cross-cultural contexts are identified. Finally,ways to increase positive interactionswhen working with persons from differ-ent cultural backgrounds are presented.Practitioners who attempt to adaptrestorative justice principles to their workmust be sensitive to cross-cultural differ-ences and encourage those with whomthey work to be sensitive as well.


3

II. RestorativeJustice: Scopeand Framework

Restorative justice has been described insuch far-reaching terms as “a revolutionin criminal justice” (National Instituteof Corrections, quoted by Zehr, 1997);“heal[ing] and put[ting] right the wrongs”(Zehr and Mika, 1997); “fueled by com-mitment and passion not unlike that of arevival meeting” (Bazemore and Pranis,1997); “an entirely new framework forunderstanding and responding to crimeand victimization within American socie-ty” (Umbreit, 1997b); and “a paradigmshift” (Van Ness, 1997).

The phrase “restorative justice” impliesboth process and outcome. It does notindicate a particular program, althoughprograms and practices may be classifiedby the extent to which they advancerestorative justice concepts.

Six principles shape the framework ofrestorative justice: the nature of crime,the goal of justice, the role of victims,the role of offenders, the role of the localcommunity, and the role of the formalcriminal/juvenile justice system.

The nature of crime.Crime is a humanprocess whereby humans violate bothpersonal relationships and social relation-ships implied as a consequence of beingpart of a community. Crime is not merelyan act of breaking laws of the State; it isa tearing of the social or community fab-ric. Crime is the violation of one humanbeing by another.

The goal of justice.The proper goal ofjustice is to repair the damage done andrestore relationships, both personal andcommunal, to their original state to theextent possible.

The role of victims. Restoration for vic-tims of crime can happen only if theyhave the opportunity to choose involve-ment in a justice process that meets theirneed for validation as individuals whohave been hurt. Victim involvement mayinclude receipt of information, dialoguewith the offender, resolution of conflictwith the offender, restitution, reductionof fear, heightened sense of safety, partialownership of the process, resolving theexperience, and renewal of hope.

The role of offenders.Restoration foroffenders who commit criminal or delin-quent acts can happen if they have theopportunity to accept their responsibili-ties and obligations toward individualvictims and the community as a whole.Such opportunity may include definingtheir obligations, participating in safe,mediated face-to-face encounters withvictims, understanding the impact oftheir own actions, providing restitutionin creative ways, identifying their needs,having partial ownership of the process,resolving the conflict, and renewinghope.

The role of the local community. Res-toration for the local community can hap-pen if its resources are brought to bear onthe needs of victims and offenders aswell as in prevention of delinquent andcriminal acts.

The role of the formal criminal/juve-nile justice system.Restoration for theformal criminal/juvenile justice systemcan happen if it continues to work toensure victim and offender involvementthat genuinely engages all participantswithout coercion. As it seeks to promotejustice in the community, this systemmust continue to monitor accountability,exhausting the least restrictive interven-tions for offenders before moving towardincarceration alternatives.


5

III.RestorativeJustice: ProgramAdaptations

Program models that reflect restorativejustice principles to varying degreesinclude community reparation boards,family group conferences, circle sentenc-ing, and victim-offender mediation(VOM) (Bazemore and Griffiths, 1997).There are many others, but these typesare the most frequently used today.

Community reparation boards, as prac-ticed in Vermont, encourage victiminvolvement, but the extent of victim participation varies considerably. Com-munity reparation boards in the VermontReparative Probation Program are re-sponsible for monitoring contract compli-ance, whether offenders and victims haveworked out mutually acceptable restitu-tion agreements or whether an agreementhas been established by the board orsome other judicially empowered author-ity. These boards often refer victims andoffenders to mediation, although suchreferrals are not mandatory.

Family group conferences,developed inAustralia and New Zealand and replicat-ed elsewhere, focus heavily on the needsof the offender by shaming the offenderand reintegrating him or her back into thecommunity. While some importance isassigned to meeting with victims—notnecessarily the specific victims of theoffender’s actions—and representativesof the larger community, the emphasis ison educating the offender. The more thevictim perspective is developed as acounterbalance to retributive justice bygiving attention to reparation, empower-ment, and support, the more family groupconferencing fits into the restorative jus-tice framework.

Circle sentencingplaces considerableemphasis on victim needs. The impetusfor the program comes from the commu-nity. Victims, representatives of the community, and elders meet with theoffender. Victims are encouraged to telltheir stories to their neighbors, who arepresent in the circle. Offenders are pres-ent and may also have friends and rela-tives present. The goal of the process isto develop consensus on an appropriatesentencing plan that addresses the con-cerns of all parties. Maintaining a bal-ance between the needs of both victimand offender is a continuing struggle.

Victim-offender mediation strives tobalance the needs of victims and offend-ers and is practiced in a variety of waysin many States, provinces, and countries.In VOM programs, the victim meets withthe offender after the program’s staff hascompleted preparatory work with eachparticipant. Sharing the stories of the victim’s and offender’s experiences andworking out ways for the offender torepair damages to the victim and thecommunity are emphasized.

Each program, along with many others,pursues restorative justice frameworks inreal-world settings. Although the imple-mentation of restorative justice principleshas made a considerable impact on thecriminal justice process, much moreneeds to be done to change the system’semphasis from retributive to restorative.Legal, procedural, and attitudinal con-straints of the existing formal justice sys-tem, expectations of key participants,and inertia in the face of change inhibitprogress.


7

IV. Potential Cross-Cultural Pitfallsand Dangers

The key to progress toward adaptationof restorative justice frameworks isincreased sensitivity to cross-culturalissues and dynamics that affect restora-tive justice programs and the administra-tion of justice itself. Often the culturalbackgrounds of victim, offender, and program staff member are different, andthese differences can lead to miscommu-nication, misunderstandings, or, worse,revictimization of the victim.

This document’s opening scenario dem-onstrates a brief exchange between peo-ple of different cultural backgrounds thatleft each participant feeling misunder-stood, dissatisfied, and doubtful of themediation’s efforts to “humanize” thejustice system.

A great danger when speaking of cross-cultural aspects is overgeneralization.There are as many differences within cul-tures as between cultures. For example,significant customs, communicationstyles, and world views distinguish therural White from the urban White, theupper-class Black from the lower-classBlack, the Mexican Latino from thePuerto Rican Latino, the reservationAmerican Indian from the nonreservationAmerican Indian. Differences within cul-tures are discussed later in this section,but first we consider variations acrosscultures.

Differences between persons raised andliving in unlike cultural settings areoften reflected in communication styles,typically in the way points of view arecommunicated; consider the potential pit-falls in interpreting another’s nonverbal

communication. The following sectiondraws considerably from research-basedfindings reported by D.W. Sue and D.Sue in Counseling the CulturallyDifferent (1990).

Differences inCommunication StylesProximity. Cultural experience may dic-tate how close to each other people standwhen they converse. Generally, LatinAmericans, Africans, Black Americans,Indonesians, Arabs, South Americans,and the French are more comfortablespeaking with less distance between themthan White Americans. In mediation orconversation, the White staff person isoften seen backing away, possibly feel-ing confronted or attacked. The Latinovictim will appear to be chasing theWhite American mediator across theroom, believing the mediator to be aloofor thinking, “He believes he’s too goodfor me.” Both participants are misreadingcues based on their cultural experiencesand taking actions that will only rein-force misunderstandings. Another exam-ple of distance preference is the desire bymany White Americans to keep a desk ortable between themselves and the peoplethey are talking to. In contrast, someEskimos prefer sitting side by side whentalking of intimate matters to sittingacross from each other.

Body movements.Body movementsoften speak louder than words. Posture,smiling, eye contact, laughing, gestures,and many other movements communi-cate. How these nonverbal signals areinterpreted may vary greatly from cultureto culture. Asians may be puzzled andoffended by a White mediator who wantsto express herself with facial grimacesand smiles. The White mediator may con-clude that the Asian, who has been taughtto tightly control expressing his feelings,has no emotion. Thus, an individual

8

words not only before taking a turn atspeaking, but while speaking. WhiteAmericans often feel uncomfortable withsilence. The French might regard silenceas a sign of agreement. To an Asian,silence may be considered a token ofrespect or politeness.

Related somewhat to pace and silence ishesitation. For persons who speak rapidlyand feel uncomfortable with silence, hes-itation on the part of another is a cue tobegin speaking. To the one who hesitates,such an action might be taken not as aninterruption but as an intentional, griev-ous insult.

Asians are given to speaking softly; manyfind U.S. speakers to be brash and loud.Arabs, on the other hand, may find U.S.speakers to be soft-spoken. The Arabprefers a higher volume.

Persons of Asian descent may find U.S.Americans to be too direct, blunt, andfrank. The former will go to great lengthsnot to hurt feelings; the latter is oftenunaware when feelings have been hurt.

Density of language.Density of lan-guage also differs among speakers fromdifferent cultural backgrounds. Blackstend to be sparse and concise. Often, inexchanges among Blacks, many sharedcodes are used, requiring little furtherinformation. Even the simple phrase “uh,huh” is loaded with meaning when takenin the context of the social situation. Tooutsiders, Blacks may appear terse ordisinterested. Asians and AmericanIndians will often use many more wordsto say the same thing as their White col-leagues. The poetry of the story may bemore important than the content (andmay actually be the point of the story).Much patience is required of Blacks andWhites to understand what is being saidwhen conversing with American Indiansor Asians. One can readily see potentialcommunication problems that might arise

raised to value control of emotions maynot shed tears for having burgled a homebut may be feeling remorse.

How many times have mental health pro-fessionals interpreted failure to make eyecontact to mean avoidance of an issue,poor self-confidence, submissiveness, orguilt and shame? In many traditionalAmerican-Indian cultures it is disrespect-ful to look an elder in the eye. In theclassroom, American-Indian studentsoften fail to look at the professor whenspeaking; many prefer not to speak at all.Blacks make more frequent eye contactwhen speaking than when listening,which leads some practitioners to des-cribe their Black clients as resistant ordisinterested. Whites, on the other hand,tend to make eye contact more when lis-tening than when speaking. It is not diffi-cult to conclude that these variations inmaking eye contact may contribute tomisunderstandings during mediation.

Paralanguage.Paralanguage or othervocal cues, such as hesitations, inflec-tions, silences, volume or timbre ofvoice, and pace of speaking, also provideample opportunities for misinterpretationacross cultures. Rural Americans tend totalk at a slower pace than their urbancounterparts. Put a Northern Minnesotafarmer in the same room with a NewYork City taxicab driver and they mayhave difficulty having a conversation, notbecause they do not share common inter-ests or are not curious about each otherbut because they do not have the patienceto work at communicating. The NewYorker could feel that an eternity hadgone by before the Minnesotan had com-pleted a thought. The latter would havedifficulty listening to the fast-paced pat-ter of the former.

In American-Indian culture, silence isvalued as sacred. Each person must havethe opportunity to reflect, to translatethoughts into words, and to shape the

9

in mediations involving members of dif-ferent cultural groups.

Looking at these communication stylesthrough a somewhat different lens, Sueand Sue (1990) regard American-Indian,Asian-American, and Hispanic mannersof expression to be understated and indi-rect; the manner of Whites is consideredobjective and task-oriented; Blacks’ man-ners are regarded as affective, emotional,and interpersonal. Blacks will interruptor take a turn at speaking when they can.Whites will nod to indicate listening oragreement. American Indians and Asiansseldom provide cues to encourage thespeaker; they listen without significantnonverbal engagement.

Differences Among CulturesIn addition to the potential pitfalls basedon different communication styles, otherfactors based on cultural differences casta shadow over attempts to build restora-tive justice programs. For example, thedominant U.S. White culture may empha-size individualism, competition, takingaction, rational linear thinking, and“Christian principles and a Protestantwork ethic,” but these are not valuesshared by all Whites, let alone personsof other cultures. Asians, Hispanics, andAmerican Indians are likely to placemore emphasis on the community fabricand kinship networks than on the placeof the individual. American Indians fur-ther cherish the place of the individualwithin the context of the entire naturalworld, without which the individual hasno value.

Persons from religious perspectives otherthan Christianity, which emphasizes“individual salvation,” may see the indi-vidual as equal to all living things, as ona journey toward individual fulfillment,or even as insignificant in the totalscheme of existence.

This is not to suggest that any one worldview is the correct one. It is simply not-ing that differing world views often clash(too often literally in the case of wars)and may threaten to undermine attemptsat repairing wrongs caused by crime.

Perhaps, broader than the scope of thiswork, it might be worthwhile to considerhow the concept of justice varies acrosscultures. In traditional American-Indianculture, not only is the personal relation-ship damaged by criminal behavior butalso the communal or tribal relationship,and likely even the relationship of theindividual to the universe, is damaged,for violations within the tribal contextmay be regarded as a ripping of the fabricthat holds everything together. How canrestoration of justice be promoted withoutknowing how the various participantswithin a given conflict understand andvalue justice?

Differences Within CulturesAs noted above, significant dangersinvolved in discussing cross-cultural dif-ferences are overgeneralizing cultural dif-ferences and overlooking intraculturaldifferences. It is important to recognizethat subcultures exist within larger cul-tures. Some cultural characteristics maybe shared by most Whites, yet Whitesraised in poor, rural Appalachia may havedifferent values, mannerisms, and com-munication patterns than Whites raised inSan Francisco. Likewise, middle- andupper-class Blacks of Los Angeles willshare certain characteristics with Blacksraised in the blighted areas of south LosAngeles, yet will vary considerably invalues, mannerisms, and communicationpatterns. The same can be said of Asiansraised in dense inner-city conclaves ver-sus those who move to smalltown Amer-ica, or of Utes raised on a reservationfar from the urban world compared withUtes raised in the fast pace of a metropolis.


10

play in any interaction: whether they areopen or on guard, passive or aggressive.

The impact of racism is a potential con-textual variable in restorative justice programs in which participants are of different races. Where there is an imbal-ance of political power associated withrace, one may expect to find resourcesfor schools, recreation, police, and so onto be weighted in favor of the group withthe most political clout. In the UnitedStates, this often means that Whites havemore resources, since representatives oftheir racial group are most often in posi-tions of political power. It would be erro-neous, however, to assume that there arenot also consequences of racism felt inlocalities where, for example, Blackshave more political power than Hispan-ics, or Hispanics have more politicalpower than American Indians, or Asianshave more political power than Whites.Racism is not the prerogative of personsof only one skin color.

Staff, paid or volunteer, need to analyzeclosely their own behaviors to determineto what extent racism may be subtlyapparent in their nonverbal behaviors orassumptions about the worlds of the vic-tim and the offender. For example, dononverbal actions such as folding one’sarms, scooting a chair backward, or shuf-fling papers indicate discomfort and adesire to be somewhere else? Each ofthese behaviors may simply be an accept-able part of communication or they maybe suggestive of prejudice. Do we assumethat the American-Indian youth offendersitting before us comes from a brokenfamily of alcoholics, is lazy, and has nogoals? These descriptors may, in fact,describe a particular youth. But whenthey are assumed because of the youth’sskin color, they represent a racist attitude.Actions taken based on those assump-tions, such as withholding educationalservices because the youth is believed to

Race, socioeconomic status, ethnicity,gender, religion, sexual orientation, ruralor urban residence, and many otherdefining characteristics shape how anindividual views the world and his or herplace in that world. These factors influ-ence whether there is a propensity toblame the offender, the victim, or thecommunity for crime and whether partic-ipants come to a “justice program” seek-ing revenge or repair, desiring to act orto be acted upon, or expecting hope ordefeat.

Opportunities for restorative justice canonly be enhanced when those who workin justice programs make the time andexpend the energy to understand culturaldifferences and related communicationproblems.

Racism as a Subset ofCultural ConflictWhile race and culture are intertwined,they are not one and the same. As indi-cated above, speech patterns, intensity ofcommunication, interpretation of nonver-bal cues, and many other nuances ofinteraction are influenced by the mix ofrace and culture. Although it would be amistake, for example, to assume thatBlacks from different social classes anddifferent regions of the culture communi-cate and handle conflict in the sameways, the fact of being Black is likelya—if not the—key determining factor inhow they perceive the world and howothers perceive them.

The extent to which Blacks are aware ofbeing overtly or covertly subjected toprejudice and discrimination because ofthe color of their skin influences theircommunication and efforts at conflictresolution with persons of other races.Previous experiences of individual orinstitutional racism affect the role Blacks

11

be lazy or failing to acknowledge thestrengths of the existing family structurebecause “it’s not normal,” are signs ofracial discrimination.

Program staff must not only examinetheir own beliefs and actions, but alsobe alert to the embedded racial biases ofoffenders and victims. Racism may be ajustification used by the offender forcommitting the crime. Racism may influ-ence why the victim wants not an “ounceof flesh” but a “pound of flesh.” Whenracist assumptions or accusations arelikely to occur between offender and vic-tim, the mediator must act as an inter-preter or a buffer during premeetingsand during any face-to-face encounters,be they as part of mediation, commun-ity boards, or other restorative justiceprograms.

Although race cannot be equated withculture, it can be such a powerful deter-mining factor of communication andinteraction patterns that it should notbe ignored when sorting out cultural differences.



13

V. Ways To IncreasePositiveInteraction

Cultural Skills for theRestorative JusticePractitionerIn their work Counseling the CulturallyDifferent,Sue and Sue identify five char-acteristics of the culturally skilled coun-selor, all of which are necessary culturalskills for restorative justice practitioners(adapted from Sue and Sue, 1990, pp.167–168):

◆ The culturally skilled restorativejustice practitioner is one who hasmoved from being culturally unawareto being aware of and sensitive tohis or her cultural heritage and tovaluing and respecting differences in culture.

◆ The culturally skilled restorative jus-tice practitioner is aware of his orher own values and biases.

◆ The culturally skilled restorative jus-tice practitioner is comfortable withdifferences that exist between him-self or herself and clients in terms ofrace and beliefs.

◆ The culturally skilled restorative jus-tice practitioner is sensitive to cir-cumstances (personal biases, ethnicidentity, sociopolitical influences,etc.) that may dictate referral of aminority client to a member of his orher own race/culture or to anotherpractitioner.

◆ The culturally skilled restorative jus-tice practitioner acknowledges and isaware of his or her own racist atti-tudes, beliefs, and feelings.

Despite awareness of the consequencesof cross-cultural misunderstandings, suchas subtle snubs and miscommunicationsor explicit prejudicial actions, it is diffi-cult to remove all such misunderstand-ings and consequences. These attempts toidentify the pitfalls and dangers of cross-cultural differences that impinge uponrestorative justice efforts may serve atbest only to reduce the probability offuture conflict or disrepair. In humaninteraction, even where awareness ofpotential problems is increased andbehavior modified, matters may still goawry. For example, in situations in whichthe antagonists are embittered by age-oldconflicts passed on from generation togeneration, short-term efforts at under-standing and amelioration will likely suc-cumb to such insurmountable odds. Suchextreme cases, however, should not deterthe need to learn, to inform, to model,and to seek supportive roles in helpingothers restore themselves to more harmo-nious relationships.

It is crucial for those who work in thejustice field to take every step possible toreduce the likelihood of bias and discrim-ination. The following is a list of sug-gested steps, not meant to be exhaustive.Each reader should add freely to the list.

Know ThyselfMediators need to reflect upon and studytheir own behaviors and communicationstyles. They should ask themselves thefollowing questions: Am I comfortablewith silence? Do I interrupt frequently?Can I stand closer to someone or fartheraway than I usually do when speaking?Can I do this comfortably? Do I overin-terpret straying eye contact? Can I talkto someone without staring him or herdirectly in the eye if it appears to beoffensive? Do I carry embedded, learnedprejudices toward persons of differentskin color than my own or toward

14

think, “Oh no, why didn’t I stay hometoday?” Or does the mediator assumethat he or she can help these people, whoappear very different and who havealready experienced conflict due to thestolen property? The mediator must findsome common ground from which tocommunicate so that understanding,restitution, and some degree of justicecan be achieved for the victims.

If the mediator takes this case withoutmeeting with the participants previously,he or she might be surprised by any num-ber of possibilities. The young womanmay be quite cooperative. After all, she islikely aware of how her appearance mayaffect others. Perhaps it is the elderlywoman who is turned off by someone ofher gender “dressing so radically.” Orperhaps the elderly man finds the youngwoman attractive and flirts with her. Orperhaps the mediation progresses quitesmoothly (it does happen occasionally).In any case, to make assumptions basedon appearances without any previousinformation or contact with the partici-pants will likely result in stereotypicalassessments and outcomes, leaving manyto wonder about the principles of justiceguiding such experiences.

Look at the world through the eyes ofanother. Every participant is unique.Cultural influences may be quite evident,yet each individual will reflect culturalheritage somewhat differently. Mediatorsmust understand each client as an indi-vidual within the context of culture(Ridley, 1995). If mediators are going towork with clients within a restorative jus-tice framework, then they will need totake the time to meet with the clients, lis-ten to them, and learn how they see theirworld. What meaning did the burglaryhave for the single mom: loss of memen-tos, invasion of privacy, erosion of hersense of community, awakening of fear,and so on? How does she view the

persons of the same skin color but whoare less educated or better educated thanmyself? Do I expect persons who livein certain parts of the city to be law violators?

Keeping a journal of mediation sessionsto record speech patterns of all partici-pants might improve mediation results.The mediator should record incidentsthat make the participants and/or media-tor uncomfortable and comfortable, useof and response to gestures and intensityof conversation, and an overall assess-ment of the extent to which clear com-munication was achieved. Through useof such journals, mediators can note iftheir communication patterns vary overtime depending on whether they arespeaking with someone of their own culture or of a different culture.

Mediators might consider taking penciland paper inventories designed to identi-fy biases of which they may be unaware.Bias, or having likes and dislikes, is partof human nature and will likely alwaysbe so. Some people like rock and rollmusic, some like blues, some like rap,some like classical, some like country,and so on. Having biases is not the prob-lem per se (Duryea, 1994). The problemdevelops when bias, intentionally orunintentionally, leads to discriminatorypractices. Mediators must discover theirown biases so they do not wind up hurt-ing others or themselves.

Get To Know theParticipantsDo not make quick assumptions aboutothers. It is difficult, if not impossible, tofully know another person. A tatter-cladyoung woman with bright pink spikedhair shows up for a mediation session tomeet with an elderly conservativelydressed couple about theft of propertyfrom an unlocked car. Does the mediator

15

offender: as vermin, as someone goneastray, as someone with potential? Whatis her concept of justice: getting a“pound of flesh” from the offender, hav-ing her possessions returned or replaced,seeing the offender make restitution tothe community, helping the offender sofuture criminal acts are less likely?

Similar questions can be asked of theoffender: What is his or her view of thevictim, level of remorse, sense of justice,motivation to change, willingness torepair the community fabric harmed byhis or her actions, assignment of blameor responsibility for actions?

Likewise, if other community memberswill be involved, such as in circle sen-tencing, mediators will want to knowhow these persons see themselves vis-à-vis the victim and the offender, their con-ceptions of justice and restoration, andtheir willingness to accept or reject possi-ble resolutions to the conflict that hasinvolved individuals and the communityas a whole.

Mediators will also want to pay attentionto communication styles. Does the victimspeak slowly and haltingly, taking time toform thoughts and sentences? Does theoffender speak in staccato fashion usingfew words? Does the elder speak in storyforms, letting each listener discern hismeaning? Does the offender avoid eyecontact? If so, is this a sign of shame,or is it characteristic of his or her cultureto defer to persons of authority by notlooking at them directly? (Often media-tors are perceived by many as authorityfigures.) Will the participants be comfort-able sitting around a table or more will-ing to communicate if only open spaceseparates them? Does the fact that thevictim speaks loudly, seems to shout attimes, mean that she’s angry or hard ofhearing or is this a communicationstyle representative of her culture (or a

combination of these factors)? Will suchloudness intimidate other participants?

In human interactions in which the stakesare as high as they are when matters ofjustice are being decided, mediators mustknow the key participants so the processleading toward a just resolution is notderailed by what may initially appear tobe incompatible points of view and com-munication styles. To gain such knowl-edge requires spending ample time witheach participant, asking appropriate ques-tions, listening thoroughly, and adaptingone’s communication style to that whichis encountered. For example, if silence isa significant part of speaking for the vic-tim, mediators need to slow down toaccommodate that silence.

How mediators can help persons repairrelationships or restore a sense of justiceis based on their understanding of andsensitivity to the participants’ points ofview and their culturally learned ways ofcommunicating, verbal and nonverbal. Togain awareness and sensitivity, time andenergy are required. As with so manyother processes, the desired result—inthis instance a sense of restoration—begins with preparation. A restored senseof justice is enhanced by interacting wellwith both the offender and the victim.After all, one of the tenets of restorativejustice is the humanizing of the justicesystem. In these programs, mediatorsrepresent the justice system to a largeextent. Therefore, their actions not onlyshape and influence specific outcomesbut can promote participants’ sense of thesystem being responsive, considerate,fair, and just.

Listen to key informants. It is oftenhelpful for mediators to nurture relation-ships with individuals in a community orculture unfamiliar to them to examinehow persons work out conflicts and communicate with one another in that


16

preparation includes learning about thecultural differences of the participants.

A fruitful mediation requires anticipatingpossible problems. For example, themediator may need to help participantsunderstand each other’s viewpoints anddifferent communication styles prior tothe mediation session. Encouraging cul-tural sensitivity may have little impact,but it may make a difference. At least themediator is providing some informationto help prepare participants for the en-counter, which may include what theywould normally regard as insulting ordisrespectful behaviors. Also, participantsmight be inspired to examine their ownbiases and mannerisms and thereby curbsome behaviors during the mediation thatmight be interpreted as offensive by others.

This last statement may be overly opti-mistic—to expect persons to increasetheir awareness of how others speak andbehave and to change their own behav-iors accordingly, particularly in situationsthat might become tense and conflictive.However, any increased awareness of orsensitivity to other cultural values orcommunication styles gained by workingwith the participants prior to mediationmakes the time spent worthwhile; anypositive change on the part of partici-pants’ behavior is an added bonus.

To illustrate some possibilities of prepar-ing the participants to be aware of howothers may think and speak, return to thebrief opening scenario involving a Blackmale store owner, an American-Indianfemale shoplifter, and a White malemediator. In that example, the mediatorhad not prepared himself or the others. If the mediator had prepared the partici-pants, the scenario may have unfolded inthe manner revealed below.

The mediator meets with the Black storeowner and learns of the store owner’sfeeling of invasion and loss. He knows

particular community or culture. Thishas been a common practice of culturalanthropologists and sociologists involvedin qualitative field studies. Key inform-ants can provide information that mayprevent mediators from making foolisherrors and causing damaging injury.These key informants are often not mem-bers of the professional justice communi-ty. They may include the Black motherwho manages an informal delinquencyprevention agency out of her apartment;the Asian elder who wants to help hisgrandchildren make their way in the larg-er culture while appreciating and holdingon to traditional ways; the Latino teenag-er who is curious about the mediator’spresence and is at least willing to test themediator’s sincerity.

One advantage mediators have with thesepersons is knowing that each individualhas stories to share. Very few personstake the time to listen to others’ stories.Willingness to listen to another person’sstory initiates a bond, although genuinerespectful listening does not always forgetotal trust.

Although key informants provide apotential wealth of information on cultur-al values and mores, they may at timesbe so ingrained in their culture that theyare unable to step back and see, andtherefore share, how values are actuallyshaped and imposed or how the nuancesof communication styles play out in day-to-day living. Still, these persons offerconsiderable potential as informationresources.

Prepare the ParticipantsMuch of the work involved in bringingpersons together to discuss issues of conflict needs to be done before theencounter happens. Communication difficulties that might arise during media-tion can be avoided if the mediator’s

17

that the store owner wants to work withthe teen so that there is no more shoplift-ing but does not want to see her dealtwith harshly. The store owner volunteersthat he grew up on the streets and knowshow difficult it is. His casual conversa-tion is punctuated by gestures. His voicebooms, particularly as he speaks of howthe system generally rips off youth andpeople of color. The man wants his eco-nomic loss recovered and the girl to behelped. Essentially, he is quite sympa-thetic to meeting with the teenager forhis benefit as well as hers or he wouldn’ttake the time out of his busy schedule todo so.

When the mediator meets with the Uteteenager, he discovers a very differentway of communicating. She is quiet,which makes the mediator uncomfort-able. She answers only direct questions.She pauses between her sentences.Sometimes the mediator thinks she isdone speaking when she adds still anoth-er thought. Rarely does she make eyecontact with him. When he leaves theyoung woman, the mediator feels per-plexed and not yet ready for these twoparticipants to meet.

Through a mutual friend, the mediator isintroduced to an elder of the teen’s band.The mediator asks questions and listens,seldom to direct answers, but he gets theinformation he needs. The mediatorcomes to understand that the girl was notbeing surly or uncooperative. She wasshowing him signs of respect by notlooking him in the eye. She did not askquestions because such an insult wouldhave suggested that he had not been thor-ough in his work with her. The teen’sslow speech pattern was quite consistentwith her upbringing and culture. Thesilences demonstrated how important itwas to her to answer his questions aswell as she could.

With a better understanding of both par-ticipants, the mediator is ready to pro-ceed. He returns to each participantindividually. With the girl, he shares howthe Black store owner can be perceivedas intimidating and impatient. The manwill speak rapidly to the teen and seekto make direct eye contact, and he willprobably raise his voice, but the mediatorassures the teen that the store owner isnot showing anger with her or being dis-respectful. This is his way of conversingabout things important to him. The medi-ator informs the girl not to expect thestore owner to change his ways butencourages her to listen to the contentof what the man says rather than to focuson the mannerisms and style, whichmight make her want to recoil.

With the Black store owner, the mediatortalks of how the Ute girl will not look thestore owner in the eye. He explains thatinterpreting her lack of eye contact asweakness, disinterest, or rebellion wouldbe incorrect. In her culture, it is a signof respect not to challenge authority.Certainly she views the man whose storeshe violated as being in a position ofauthority. He encourages the store ownerto refrain from interrupting the girl untilshe has worked through her thoughts andspoken her mind. Again, he says that theslowness of speech does not indicate alearning disability or any other weaknessbut simply reflects the speech patterns ofher culture.

As the mediator moves between the vic-tim and the offender, he has also beenworking on his own awareness of howcross-cultural differences may affect hisefforts to work with these two. With newinformation, he is also exploring his ownreactions: his initial discomfort with theBlack man’s perceived abrasiveness, withthe Ute teen’s excessive meekness andapparent inability to articulate, and with


18

his concern about his own ability to workwith two people so diametrically opposedin style, if not world view.

Relieved and enlightened by his prepara-tion, the mediator is now ready to bringthe two participants together. Havingdone his homework, he is comfortableand better prepared for the usual unpredictable directions that such en-counters take. He is hopeful that positive resolution will be agreed uponbetween persons who may have very little in common other than being onopposing sides of a conflict.

19

VI. Conclusion

To repair or restore relationships, person-al or communal, that have been damagedby criminal or delinquent acts is a chal-lenging goal in any circumstances. Whenparticipants in this process, includingvictims, offenders, and program staff, areof differing cultures, typical patterns ofcommunicating and expressing valuescan lead to confusion if not complete dis-ruption of the process. To arrive at jus-tice, the views of all parties need to beconsidered. The likelihood of repair andrestoration of relationships is increasedby the extent to which differences incommunication styles and world views ofthe participating individuals are exam-ined and understood. It is hoped not onlythat restorative justice programs will beenhanced by such awareness and sensi-tivity to cultural differences but also thatopenness to diversity will enrich the livesof all who choose to participate.



21

Appendix A. The Case of a CommunityReparation Board Meeting2

This meeting is held in a small room in a local social services agency. Three board repre-sentatives sit in a row facing the youthful offender. The youth’s mother sits behind and tothe right of her son. The board representatives include Ms. Langdon, a Black woman in hermidthirties who is an advertising agency executive; Mr. James, a retired White police offi-cer; and Mrs. Perez, a Latino mother of four in her fifties who has worked as a waitressmost of her life.

The offender, Enrico Gonzales, is Latino, 14, and a gang member. His mother, Ms.Gonzales, is a Latino single mother in her early thirties who works as a hotel maid. Shehas two other children. Enrico is before the board as a result of a gang-related break-inand burglary at the Clark Street Convenience Store. He was adjudicated for breaking andentering and for stealing goods valued at $350. The board members have concerns for theyoung Black Henderson family, who live above the store and felt invaded and were terri-fied by what might have happened when the burglary took place below them. Neither thestore owner nor the Henderson family is present at this meeting, which is not part of theadjudication process.

Mr. James begins by explaining to Enrico what the board is expected to do. “You havealready been convicted of stealing $350 from the Clark Street Store. Because of your ageand your mother’s pleading, the court has referred you to us to come up with an appropri-ate punishment rather than send you to the training school. You know what the trainingschool is?”

“Yeah,” Enrico nodded.

“Well, you’re a lucky young man. Now then, how are you gonna pay back the $350?”

The boy shrugged, “Don’t know?”

“You got a job?”

“Sometimes.”

“Sometimes? What the hell does that mean?” Mr. James demanded.

Rather than respond, Enrico’s glance shifted to the floor.

Motioning for Mr. James to remain quiet, Ms. Langdon asked, “What do you do when youwork sometimes?”

“Sweep floors for the meat market.”

“Ah, the Greyson Meat Market?”

Enrico nodded.

“How much do you make an hour?”

“Maybe $3.”

2 This account is fictional.

22

“How many hours do you work a week?”

“Sometimes 10. Sometimes more or less.”

“Then you do have some income,” Mr. James noted directly.

“Enrico, how do you use that money now?” asked Mrs. Perez.

“Buy some things.”

“What kind of things?”

Enrico slumped further in the chair and answered without making eye contact. “Food.Maybe a tape. Things.”

Noticing the pleading eyes of Enrico’s mother, Mrs. Perez directed her next question to her.“Is that about right, Ms. Gonzales?”

“Yes, but the food is food for the family. He keeps very little of what he earns for himself.He gives the money to me and I give him a couple dollars a week for himself. Enrico is agood boy.”

“Well that may be, but he is going to have to pay back the value of the goods he stole,” Ms.Langdon interjected rapidly.

“He’s already getting a big break,” added Mr. James, arms crossed. “We can’t let him getoff scot-free just because you don’t make enough money to feed your family.”

Wearily, Ms. Gonzales looked to Mrs. Perez for help.

“You will need to work out with Enrico a way for him to pay back the grocer,” Mrs. Perezsaid. “We don’t want to put your family in jeopardy, but your son has committed a crimeand has to make things right. I’ve raised four children myself. We parents have to takesome responsibility for our young. You can’t just let him hang out with a gang or he will gobad for sure.”

“The money is just money. Isn’t anybody concerned about that young Black family livingover the store? They were terrorized.” Pointing at Enrico, Ms. Langdon asked, “What areyou going to do for them, young man?”

“Huh,” Enrico grunted blankly.

“You don’t give a damn about them, do you?” her voice rose sharply. “They’re Blacks liv-ing in a Latino neighborhood. I don’t know why they chose to live there, but they got rightsto their safety.”

“Enrico,” began Mrs. Perez, “Would you be willing to meet with that couple, if they wouldbe willing to meet with you? There would be another person present to make sure every-thing was safe and so on.”

“Why would I do that?”

“Maybe they need to know that you didn’t want to hurt them. Maybe you need to see themto know that you did more wrong that night than steal some things off a shelf. Maybe theyneed to see you. That you’re a real person and not some TV hood.”

Enrico grinned a half smile, “Okay. If you think it would help.”

(During this meeting a restitution plan for the store owner was worked out and a potentialmeeting with the young family living above the store was arranged. The board also agreedto look into finding services to help Enrico and his family.)

23

To review this case from a cross-cultural perspective, consider the following questions.

◆ How did cultural awareness or unawareness of communication styles shape the interac-tions and likely outcomes of this meeting?

◆ Do you think racism played a part in this case? Provide possible examples.

◆ What would you do differently to build upon the cultural diversity within the room?

◆ How might you have coaxed Enrico to be a more active participant in this meeting?



25

Appendix B. Diversity3

I believe that diversity is a part of the natural orderof things—as natural as the trillion shapes and shadesof the flowers of spring or the leaves of autumn.

I believe that diversity brings new solutions to anever-changing environment, and that samenessis not only uninteresting but limiting.

To deny diversity is to deny life—with all its richnessand manifold opportunities. Thus I affirm my citizenshipin a world of diversity, and with it the responsibility to . . .

Be tolerant. Live and let live. Understand thatthose who cause no harm should not be feared,ridiculed, or harmed—even if they are different.

Look for the best in others.

Be just in my dealings with poor and rich,weak and strong, and whenever possible todefend the young, the old, the frail, the defenseless.

Be kind, remembering how fragile the human spirit is.

Live the examined life, subjecting my motivesand actions to the scrutiny of mind and heartSo to rise above prejudice and hatred. Care.

3 An unpublished poem by Gene Griessman.


27

Bibliography

Bazemore, G., and C.T. Griffiths. (1997) “Conferences, Circles, Boards, and Mediations:The ‘New Wave’ of Community Justice Decisionmaking.”Federal Probation61(2): 25–37.

Bazemore, G., and K. Pranis. (1997) “Hazards Along the Way: Practitioners Should StayTrue to the Principles Behind Restorative Justice.”Corrections Today59(7): 84–128.

Duryea, M.L. (1994) Conflict Analysis & Resolution as Education.Victoria, BritishColumbia, Canada: UVIC Institute for Dispute Resolution.

Myers, S., and B. Filner. (1993) Mediation Across Cultures.San Diego, CA: Myers andFilner.

Ridley, C.R. (1995) Overcoming Unintentional Racism in Counseling and Therapy.Thousand Oaks, CA: Sage Publications.

Sue, D.W., and D. Sue. (1990) Counseling the Culturally Different,Second Edition. NewYork, NY: John Wiley & Sons.

Umbreit, M.S. (1997a) “Humanistic Mediation: A Transformative Journey ofPeacemaking.”Mediation Quarterly14(3): 201–213.

Umbreit, M.S. (1997b) The Impact of Restorative Justice.St. Paul, MN: Center forRestorative Justice & Mediation.

Umbreit, M.S. (1995) Mediating Interpersonal Conflicts: A Pathway to Peace.WestConcord, MN: CPI Publications.

Van Ness, D.W. (1997) “Perspectives on Achieving Satisfying Justice: Values andPrinciples of Restorative Justice.”The ICCA Journal on Community Corrections7(1):7–12.

Zehr, H. (1997) “Restorative Justice: The Concept.”Corrections Today 59(7): 68–70.

Zehr, H., and H. Mika. (1997) Fundamental Concepts of Restorative Justice.Akron, PA:Mennonite Central Committee.

Multicultural Implications of Restorative Justice:

Potential Pitfalls and Dangers

For copies of this document and/or additional information, please contact:

Office for Victims of Crime Resource Center (OVCRC)P.O. Box 6000

Rockville, MD 20849–6000Telephone: 1–800–627–6872 or 301–519–5500

E-mail orders for print publications to [email protected] questions to [email protected]

Send your feedback on this service to [email protected]

Refer to publication number: NCJ 176348

NCJ 176348

office of justice programs multicultural implications ... · appendix b. diversity .....25...

Documents