Disrupting the informal–formal justice complex: on the transformative potential of civil mediation, restorative justice and reparations politics

Abstract

Among the many ‘informal’ conflict resolution practices currently available within the vast justice market, three stand out: civil mediation, restorative justice and reparations politics. These, in our estimation, are among the most widely discussed and broadly practiced new justice forms within the juridical field. In our recent work, we have sought to identify commonalities among these three ideal types of ‘informal reckoning’, as well as to evaluate their potential to achieve a transformative justice, partly through the medium of change‐oriented informal justice counterpublics that move beyond the contemporary confluence of social and legal domination and aspire to create new possibilities for justice that uproot class, race and gender‐based inequities.

Keywords:

• informalism
• civil mediation
• restorative justice
• reparations politics
• transformation

Notes

1. The term ‘informal’ is placed within quotation marks to acknowledge that none of the conflict resolution processes we describe in this paper are wholly informal. All rely on the institutions of formal justice in both material (e.g. funding and referrals) and symbolic (e.g. reference to formal law in decision‐making) ways.

2. It should be noted that these practices are seldom, if ever, conducted entirely outside of formal justice systems. Reparations policies often receive official sanction through law, even if they are informally negotiated by the stakeholder parties. Likewise, truth commissions operate within a broad legal context, and will even incorporate traditional legal practices, such as providing investigators with subpoena powers (see Wilson, 2001).

3. See, for example, the Restorative Resolutions program in Manitoba, Canada, which was initially funded by the federal government. The pilot funding agreement required evaluation of the project, with emphasis on the degree to which the program helped prevent recidivism (Bonta, Rooney & Wallace‐Capretta, 1998).

4. For example, Howard Zehr's (1990) discussion of restorative justice sets this concept directly in contrast to retributive justice to show how the failings of retributive justice are corrected by the restorative paradigm. However, in so doing, restorative justice is anchored to retributive justice as a reaction to its shortfalls rather than presented as an idea that transcends retribution and pushes restorative justice toward a new justice horizon (Pavlich, 2005).

5. By ‘neoliberalism’ we refer to a political rationality that values domestic and global free market imperatives, the reduction of state infrastructure and the harnessing of local energies toward allegedly improved governance. By ‘juridification’ we mean the entry of a greater degree of legal regulation into the lifeworld (or everyday social context).

6. Habermas acknowledges that actual contexts of argumentation seldom correspond to the imaginary ideal of the ISS, but the possibility of approximating the conditions of such public discourse, even in divided societies, is not inconceivable.

7. This default stems in part from Foucault's rejection of the idea of justice as a quality inherent in human nature. In contrast to Habermas, who attributed normative sanctity to the term ‘justice’, Foucault viewed it as a mere claim or instrument of power in the struggles between antagonists (see Lane, 2007).

8. This is not to suggest that we believe that rejecting compensation is the only way to remain a pure informal justice counterpublic. Indeed, such payments can be used to strategically forward one's cause.