Retribution and Restoration: The Struggle in the Development of Restorative Justice Mediation in Hong Kong

懲罰和復和:香港復和公義調解發展的掙扎

Student thesis: Doctoral Thesis

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Detail(s)

Awarding Institution
Supervisors/Advisors
Award date16 Aug 2018

Abstract

Restorative Justice (RJ) mediation has experienced a robust development in Hong Kong in the past decades. The use of restorative mediation had increased in the 2000s, particularly under the auspices of the Police Superintendent Discretionary Scheme (PSDS), and the use of RJ in dealing with juvenile justice in schools and among social workers. The use of RJ experienced a decline in recent years, probably as a result of a huge drop in juvenile crime. The use of commercial mediation, being framed as one of the most effective alternative dispute resolution method in the legal field in dealing with civil cases, has experienced a tremendous growth during the same period of time when RJ was experiencing a fall. The rise in the use of mediation can be explained as a result of the civil justice reform where disputants are required under the procedural rule to use mediation before they litigate. The rise in the number of mediation cases and mediators in Hong Kong has not, however, revived the use of RJ mediation. This research seeks to explore into the issues of this mismatch, and the underlying potentials that might possibly re-trigger a rebound of the use of RJ.

Literature
A review of the literature in the studies of RJ in the West, China, Taiwan and Hong Kong in theory and field practices was made. RJ has gained its developmental momentum in the criminal justice system as a rehabilitative measure, and is practiced in different forms, the most common of which are Victim Offender Mediation (VOM), Family Group Conferencing, and Sentencing Circle. Programmes have been implemented either within the criminal justice systems, or as a diversionary route out of the formal system, with enacted laws that regulates its service provision. Many field studies in the West has focused on the impact of the use of RJ, including satisfaction rates, fairness, restitution, and recidivism rate etc. The scales of these studies are sufficiently substantial, which are important statistical analysis for continuous policy support in the delivery of RJ services. On the theoretical aspect, analysis in the West covers principles on retributive justice as compared to restorative justice, youth justice systems, and the notion of apology and forgiveness in effecting transformative move that results in restoration or reparation of harm done to a victimized party.

As compared to the West, the practice and research in Hong Kong is of a much smaller scale. Restorative justice mediation is practiced in three organizations in Hong Kong, namely the Centre for Restoration of Human Relationship (CRHR), the Evangelical Lutheran Church, Hong Kong (ELCHK), and the Methodist Centre, Hong Kong (MCHK). Field researches are of a much lesser significance in terms of sample size, duration, and depth of study. However, as the use of mediation flourishes, mediators in Hong Kong gained insights from various practice models, such as transformative mediation, motivational interviewing, and narrative mediation. These mediation practices are similar to those that are practiced in the RJ framework.

The current research seeks to uncover the essential RJ features, and how these features are related to its actual practice, in particular how these are being realized in its narrative forms. The findings will help answer the very important question on where we are when RJ development in Hong Kong is coming to a standstill, and whether there are potentials that we can make use of in our mediation development in Hong Kong to trigger some changes.

Methods adopted for the current study
The research involved a two-stage mixed-method study: the first stage of the research is a naturalistic inquiry of real restorative justice mediation cases. Cases are obtained in two ways: first by having in-depth interviews with mediators from CRHR, ELCHK and MCHK on retrospective cases; and second, by the study on archived audio-recorded cases provided by ELCHK and HKMC. The purpose of the naturalistic inquiry is to identify the essential common features of restorative justice mediation cases (n = 12). Due to the fall in the use of restorative justice mediation in Hong Kong, the number of retrospective cases (n=7) and archival audio-recorded cases (n=5) is small. The purpose is to gather essential themes of RJ that may or may not be common among mediation practitioners in Hong Kong. The findings in the first stage of research are used in the second stage of the research where a quantitative approach is used to explore into whether there exist any correlations between these essential RJ elements, the RJ narratives, training and accreditation, and the professional backgrounds of the mediators. That may answer the questions on the glooming development trend of RJ despite the rise in the number of mediators.

Findings
A few major themes emerged from the research that demonstrates a struggle between Retribution and Restoration that hinders the growth of RJ mediation in Hong Kong. It was found in the research that the increase in the sense of retribution means a lower level of forgiveness and empathy, which are the essential principles in RJ, and as a result will lower the use of restorative justice language. It was also found that helping professionals are more RJ prone than legal professionals, but with training and accreditation beyond general mediation, the use of RJ will be enhanced. The research findings show that general mediators in Hong Kong may be well-versed in being empathetic, demonstrating their capability in practising RJ. This further implies that potentially a pool of mediators is readily available to provide RJ services. This can better be achieved if a legal framework is in place, though such change may not be forthcoming when the public consensus is against such move. A bottom-up approach is appropriate through blooming the pool of professional mediators to expose and be trained in RJ, and to apply the use of it in the community, covering not just peripherally cases that are diverted from the criminal justice system, but cases in the neighbor-hood, in schools, or in rehabilitation institutions. The latest development of the enactment of the apology legislation will hopefully have a catalytic effect on a more positive development of RJ in Hong Kong.

Significance
The current research bears certain theoretical and practical importance. Theoretically, the findings demonstrate the importance of apology and forgiveness in the process of mediation in order for restoration to happen. The concepts of retribution and restoration is in theory compatible, nonetheless in a society where retribution is upheld, the sense of restoration will be lowered, explaining that inevitable dichotomy in actual practice. The finding supports the Meta Model which places apology and forgiveness as the ultimate elements required for achieving restoration.

The use of verbatim from the mediators’ narrative practices on real cases serves to demonstrate how apology and forgiveness can be achieved through systematic restorative justice narrative practices, which is a useful guide and importance reference for clinical practices in the mediation field.

    Research areas

  • Restorative Justice, Mediation, Retribution