Restorative justice practices have extensive roots in countries throughout the world.  Among native North Americans, circle processes have been used for centuries as a form of community justice.  Similarly in New Zealand and Australia, restorative circles have been used by Aboriginal communities to resolve offenses and conflicts.  Following the end of apartheid, South Africa’s Truth and Reconciliation Commission heard over 10,000 cases in which violent offenders sought amnesty in exchange for complete disclosure and accountability, performing restitution and apologizing for their acts.  As of the late 1990’s there were over two dozen restorative justice programs operating in Canada, nearly 300 in Germany and 130 in Finland.  During the 1990’s, restorative justice spread throughout the United States, both in the criminal justice systems and in schools.

Most restorative justice programs utilize facilitated conferences to enable offenders, victims and community members to meet face to face in order to discuss the offense and determine how to best repair the harm.  When offenders hear their victims describe the effect the offense had on them, they often feel empathy and express remorse.  In order to repair the harm arising from their wrongful act, offenders are asked to perform reparative acts.  Restorative justice conferences result in high levels of satisfaction among offenders, victims and community members.  The participants report being gratified that they were heard, that their needs were met, and that the results were just. They also felt secure during the process.  These results show significant advantages compared to the punitive process and have led to the expansion of restorative justice to other areas of conflict resolution.

Restorative mediation is a process which allows the parties to meet with a facilitator to talk about what happened and for the responsible party to take responsibility for their actions. If appropriate, the responsible party will offer an apology and sympathy to the aggrieved party. Both parties may bring a friend, family member or supporter if desired.  After the discussion about the incident/accident, the parties and an insurance representative will talk about the harms, damages and losses suffered by the injured party and their family and will attempt to agree as to how those harms, damages and losses will be repaired.

The difference between the adversarial and restorative process

There are four elements  of a restorative mediation process.

• Provides an opportunity for the injured party and wrongdoer to meet face to face along with their supporters to discuss what happened and what the impact has been on each party.

• Provides an opportunity for the wrongdoer to accept responsibility and be held accountable for his or her actions. Typically this will involve an explanation of what happened and why, including an expression of sorrow and apology, if appropriate.

• Uses insurance proceeds or other resources to repair the financial and emotional harms caused by the incident.

• Forgiveness, though not an essential element, often occurs and is pivotal in the healing process.

Research shows that involvement in on‐going litigation affects one’s recovery from a painful or chronic injury or disorder. Typically, those involved with litigation are less likely to recover quickly from surgery and may be more depressed and anxious,causing greater social dysfunction.

There is a negative effect on those who are sued after an accident or medical error. Research shows that doctors sued for malpractice have increased “depressive symptom clusters” including insomnia, headaches, difficulty concentrating, suicidal ideation, depressed mood, irritability and increased alcohol use.  These difficulties increase despite the fact that the doctors were insured.

When wrongdoers fail to take responsibility, they experience feelings of internal shame, guilt and decreased self-esteem. These feelings appear to be significantly reduced when people take responsibility and seek forgiveness for their acts.

The primary factors which account for the counter-therapeutic effects of tort litigation are:

• Delay between the time of the accident or event and the resolution of the claim or lawsuit.
• No opportunity for the injured person and the wrongdoer to meet face to face to acknowledge losses and responsibilities.
• Payment of money is often insufficient to satisfy an injured person or repair the intangible harms caused by the injury.

A study done in 2002 by researchers from Hope College and Virginia Commonwealth University showed that heart rate, blood pressure, sweat levels, and facial tension decreased in victims of wrongs when they imagined receiving an apology.