Informal mechanisms derive their power from social groups or community structures and are not a part of the government. Social groups and structures can include specific ethnic or faith communities, rituals or traditions, indigenous governance systems, or local community organizations.
The informal justice sector often has at its centre leaders or decision makers who are chosen by the community that uses the mechanism. These leaders may preside in settings much like a court or may operate in an altogether different environment (such as a community gathering place or a private home). They may be paid by the parties, by an outside entity, or may provide their services free of charge as part of their expected role in the community. The community and the public at large also often play an important role in informal proceedings and enforcement of decisions.
Informal justice mechanisms pose many risks to women and girl victims of violence (see box for details). However, there is general consensus that simply outlawing practices or mechanisms without public education and awareness is the least effective means of reform in the informal sector. Changing the law in combination with ongoing education and provision of alternatives is a preferable strategy.
The Danger of Restorative Justice in VAW Cases
Restorative justice practices are used in both the informal and formal justice sectors around the world. There are significant concerns relative to using restorative practices in cases of violence against women. These processes can minimize the effect that violence has had in women’s lives, can perpetuate discrimination against women, and can risk women giving up their individual rights so as to preserve harmony within a social group. There is often an imbalance of power between survivor and perpetrator in cases of violence against women, so restorative justice practices can create risks associated with bringing the survivor and offender together for negotiation and dialogue. This has not precluded restorative justice practices from being used around the world for cases of violence against women, including domestic violence. Women may be pressured to use these mechanisms or may use them when formal justice mechanisms are not readily available.
The Dangers of Mediation in VAW Cases
Mediation (sometimes referred to as conciliation) is used in both the formal and informal justice sectors, despite expert recommendations that it not be used in cases of violence against women. Mediation can be extremely problematic and indeed dangerous in cases of violence against women, especially in cases of domestic violence. Cases of violence against women involve unequal power relationships between the parties, based on acts of assault, violent intimidation, and/or controlling, abusive, or humiliating behaviour. Mediation assumes that parties approach the process with equal resources and power – which is often not the case in these situations. In fact, many experts recommend that laws prohibit mediation in cases of violence against women. For example, the 2011 Council of Europe Convention on preventing and combating violence against women and domestic violence prohibits “mandatory alternative dispute resolution processes, including mediation and conciliation, in relation to all forms of violence” covered by the convention (Art. 48).
Nevertheless, mediation continues to be used in many cases of violence against women in countries around the world. Any justice reform programme with a mediation component should strictly comply with the following:
- All those involved in facilitating mediation should be trained in the dynamics of violence against women, particularly domestic violence. Training should include the strong message that even after training, mediators likely will not be able to recognize all cases of domestic violence or equalize power imbalances once mediation has started.
- Mediation programmes, whether in the formal or informal sector, should include a screening process to identify and refer cases that are inappropriate for mediation.
- Women should always be allowed to opt out of mediation processes, and should be provided with resources to support them in doing so.
- Parties in mediation should be encouraged to have supportive persons accompany them to sessions and seek outside legal counsel.
- Parties in mediation should be given the option of shuttle mediation, where they do not have to be physically present in the same space during the process.
The principles above should be kept in mind anytime mediation is used. Further, the American Bar Association has promulgated Model Standards of Practice for Family and Divorce Mediation that contains helpful guidelines relative to dealing with violence against women in the mediation setting.
Sources: The Advocates for Human Rights. 2010. StopVAW - Mediation; United Nations. 2009. UN Handbook for Legislation on Violence Against Women; Amnesty International. 2008. Women’s Struggle for Justice and Safety in the Family; Ellsberg. 2001. Towards an Integrated Model of Care for Family Violence in Central America.
Canada: Working Group Recommendations for Restorative Justice in VAW Cases
In Canada, where restorative justice practices have been incorporated into the formal court system over the past several decades, there has been much debate about the use of restorative practices in cases of violence against women, especially domestic violence. For example, the Aboriginal Women’s Action Network has recommended a moratorium on the use of restorative justice in cases of violence against women and children, while some other aboriginal and non-aboriginal groups have been supportive of developing restorative justice options. In response to the concerns, the Department of Justice in Canada created a working group to develop recommendations about how restorative practices might be appropriately used in cases of domestic violence. The recommendations stated that restorative justice practices in spousal abuse cases should not be used except in the following circumstances:
- the restorative justice process offers the same or greater measure of protection of the survivor’s safety as does the criminal justice process;
- the referral to the restorative justice process is made after the perpetrator has been charged with a crime and with the approval of the prosecutor;
- trained and qualified personnel, using validated risk assessment tools, determine that the case is not high-risk (in other words, if after a consideration of a variety of factors, including any history of violence, threats of serious violence, prior breaches of protective court orders, the use or presence of weapons, employment problems, substance abuse and suicide threats, the offender is assessed to be at low risk of re-offending and therefore of low risk of harm to the survivor’s safety, as well as that of her children and other dependents, both throughout and after the process);
- the survivor is fully informed of the proposed restorative justice process and her wishes are taken into consideration. In addition, survivor consent is required and survivor support must be provided where the survivor will be asked to participate in the alternative justice process;
- the offender fully accepts responsibility for his action;
- the restorative justice process is part of a programme approved and overseen by the government for the purpose of providing restorative justice responses to spousal abuse;
- the restorative justice process is transparent (that is, it maintains formal records of the actions taken by those engaged in the process) and it is undertaken in a timely and reasonable manner;
- the restorative justice process has the capacity to deal with spousal abuse cases and is delivered and supervised by persons possessing the requisite skill, training and capacity, including the ability to recognize and address any power imbalances, as well as cultural differences; and
- the possibility of criminal conviction and sentence remains if the process fails.
The Working Group found that use of restorative justice processes in cases of violence against women should also be supported by the following activities:
- development and delivery of ongoing training for those involved in conducting risk assessment and the delivery and supervision of the alternative justice processes and programmes, including criminal justice personnel;
- development and application of validated risk assessment tools for spousal abuse cases; and
- ongoing monitoring and evaluation of alternative justice responses, including of those used in spousal abuse cases, against new evidence-based research on the effectiveness of these processes, their ability to ensure the safety of the survivor and her children, and their ability to reduce the likelihood of re-offending.
Sources: Department of Justice, Canada. 2001. Final Report of the Ad Hoc Federal-Provincial-Territorial Working Group Reviewing Spousal Abuse Policies and Legislation; Ptacek. 2010.