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DOI: 10.5553/TIJRJ.000105

The International Journal of Restorative JusticeAccess_open

Editorial

Restorative spaces: how does the organisation of space contribute to the experience of justice?

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David Tait and Munzer Emad, 'Restorative spaces: how does the organisation of space contribute to the experience of justice?', (2022) The International Journal of Restorative Justice 8-17

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      ‘First we shape our buildings, thereafter they shape us’. Winston Churchill’s famous aphorism poses some interesting questions for justice processes. How can court or hearing spaces be shaped in a way that could be seen as ‘restorative’? And how does the physical and symbolic environment of a hearing room in turn contribute to how participants experience the process?
      For a visitor to a major trial, the design of the courtroom could well provide messages about the nature of justice and the authority of the state. Seeing a robed judge sheltering in a canopy adorned with a coat of arms could tell the visitor that the judge is empowered by the state to administer the law. Or perhaps it hints at a colonial legacy that remains unresolved. Seeing a jury entrusted with bringing in the verdict could suggest to the observer that popular democracy has penetrated even the venerable institutions of the law, but seeing them sitting silently on the sidelines fighting back sleep might suggest they are not exactly active participants in the process. Rich symbols are multivalent – they are open to more than one interpretation, or none at all. It depends on who you are and what you see. Seeing two parties facing off across the well of the court might reasonably be seen by our observer as the two sides taking part in a contest, while seeing two teams sharing a table where they whisper to each other from time to time – that smells like a conspiracy. It is unlikely of course that there is in fact a conspiracy; what we are drawing attention to is the affordances provided by the design of the space. If justice is supposed to be seen to be done, impressions do matter. The only unambiguous message the novice observer is likely to receive from the design of the standard criminal courtroom in Australia or the UK is that the person in the cage – a dock or box – is clearly dangerous, and probably guilty. That at least is one impression for which there is solid empirical evidence (Rossner, Tait, McKimmie & Sarre, 2017).
      Let us turn to another set of justice processes, those which could be referred to as ‘restorative’. For our purposes we can identify these as hearings that seek to promote reconciliation between individuals or groups, remedy harm and reintegrate back into the community those who have found themselves in trouble. Three rather different styles of hearings are considered: sentencing hearings that are explicitly classified as restorative justice conferences, Indigenous sentencing courts, and tribal conciliation hearings. Each of these approaches can include a range of styles and use a variety of spaces, as indeed do courts, but the descriptions provided represent some of the more common features in these settings. Most of the reflections are based on the authors’ own observations as facilitators, evaluators or observers. The restorative justice conferences referred to here took place in the Australian states or territories of New South Wales, the Australian Capital Territory and South Australia plus New Zealand; the Indigenous sentencing hearings referred to were in New South Wales, Victoria and New Zealand; and the tribal conciliation hearings were in Jordan and Gaza.
      An initial impression of a ‘typical’ restorative justice conference (at least in Australia and New Zealand, influenced in part by the work of John Braithwaite) might be a group of people dressed in regular clothes sitting on chairs in a circle talking earnestly to one another. Is it an Alcoholics Anonymous meeting? Compared to the elaborate performance in the jury court, there could surely be nothing to report on here in terms of performances or spaces – no fancy costumes, no archaic language, no special furniture. Not only do the processes seem to be quite devoid of ritual, but the spaces seem somehow ordinary. How could the design of these everyday spaces possibly have any impact on the quality of the process or the success of the outcomes?
      To address this question, we need to take a detour to look at a couple of literatures that can help frame the question, before turning to providing a comparison between some rather different types of processes that could be considered ‘restorative’.
      First, the everyday nature of the setting. According to Erving Goffman apparently mundane rituals play an important part in shaping the nature of an interaction. As he puts it, ‘[t]he gestures which we sometimes call empty are perhaps in fact the fullest things of all’ (Goffman, 2017: 91). Mutual recognition of other participants, responding to the image of self or ‘line’ they are attempting to present, and collaboration in developing a story – these are expressed in part by everyday gestures like nods, shrugs, smiles, grimaces, tapping the feet, pointing at an object, looking down or staring out the window. This insight can be extended to the nature of the spaces and the objects within them. The configuration of participants in the space, distances between them, the use of furniture as shelters or props, how whiteboards or written documents are used and how participants move within or outside the action zone of the hearing – all of these could potentially give us clues about how participants might experience the hearing.
      Second, a brief detour into restorative spaces in health and educational settings. Apart from the impact of the dock referred to earlier, there is little experimental research about how justice participants respond to the organisation of space, so any discussion about restorative spaces in justice settings is necessarily somewhat speculative. However, there is a useful body of work about restorative spaces in health care settings or schools.
      Being able to view a natural setting rather than a wall has been found to reduce recovery times after medical operations and minimise the use of pain-killing drugs (Ulrich, 1984). Bringing nature indoors in the form of indoor ornamental plants has a similar impact (Park & Mattson, 2009). Viewing both foliage and flowering plants increases the impact still further (Park & Mattson, 2008). Even pictures of plants can have a positive effect on stress reduction (Beukeboom, Langeveld & Tanja-Dijkstra, 2012). Noisy environments meanwhile increase patient anxiety levels (Sayilan, Kulakaç & Sayilan, 2021). For residents of nursing homes ‘verbally agitated behaviour’ can be significantly reduced by transforming the environment to allow residents greater access to garden areas, improving views to the outside and providing paintings (Wilkes, Fleming, Wilkes, Cioffi & Le Miere, 2005). For students, noisy settings make them tire more easily and get headaches, while improving air quality in the room of an elementary school improves students’ level of attention (Gilavand, 2016). Exposure to the colour red impairs student performance, particularly for difficult tasks, while rooms that are blue or green are likely to prove calming (Gilavand, 2016). For female university students, smelling the fragrance of lavender improved their performance in a calculation task, while their male counterparts perform such tasks more accurately when they see cut flowers (Liu, Mattson & Kim, 2004).
      The significance of this body of work for restorative justice practices is that the natural environment in which such conferences are held could well make a difference to how people behave, how they react to others, how they feel and express emotion, and possibly even their capacity for empathy. Which aspects of the environment have what effect could be assessed by comparing conferences held in well-ventilated, quiet rooms with views of gently waving trees (such as those held in Dunedin, New Zealand), and comparable conferences held in spaces that lacked these features.

    • 1 Classical restorative justice conferences

      Within each of the three approaches listed earlier we can distinguish three types of space – the space before the hearing, during the hearing, and after the hearing. By looking only at what happens when a hearing is formally constituted, we could miss some important clues about how to interpret the event. Restorative justice conferences generally bring together one or more people designated as ‘offenders’ with others classified as ‘victims’, plus support people and a facilitator who manages the process. Another person may represent ‘the community’. The ‘offender’ has already accepted ‘responsibility’ for the misdeeds that are the subject of the hearing.
      The formal position of such conferences in the justice system is that they serve as sentencing forums, places where ‘outcomes’ (the word ‘punishment’ is avoided) are decided. This means that the ‘offender’ – usually referred to by name or as the ‘young person’ (for youth conferences) has already agreed that he or she was an active participant in whatever misdeeds were alleged. The purpose of the hearing is therefore not to find out what happened – this has already been ‘agreed’ by the person as part of the price of entry to the forum. The agreement has been made in another space, perhaps an interrogation room in a police station, the office of the conference coordinator or at the person’s home. These private spaces are not subject to scrutiny. At one hearing it was observed that a young person had already agreed that he had been in a fight and had beaten up another young person; when he tried to point out during the hearing that this was in retaliation for the other person beating him up shortly before, he was cut off and reminded that he had ‘agreed’ to take full responsibility in the pre-hearing meeting. In the pre-hearing spaces ‘victims’ might also be identified, designated and interviewed. The hearing itself can, to some extent, be a confirmation of what is already ‘known’ from the prior investigation, with the focus on actions to remedy the agreed harm.
      An important space that is central to the restorative justice hearing, but is absent from it, is an imagined courtroom. Many conference co-ordinators wave the spectre of the ‘judge’ over the head of the person, a judge who the person would otherwise have appeared before, and who might still figure in the case if a satisfactory outcome is not reached. In contrast to this image of state law operating out of ‘formal’ courtrooms, the ‘community’ is said to be the location of the ‘informal’ conference. Sometimes the ‘community’ setting is a suburban home converted for the purpose (as in New Zealand); sometimes it is in a conference room in a courthouse (as in South Australia).
      A key feature of most classical restorative justice conferences themselves is the use of the circle as the organising shape. The circle is one of the traditional shapes of justice in many traditions. In northern Europe, the ting, or circle of stones, was the place where justice processes and other important gatherings took place. In some North American tribes, talking circles provided the opportunity for members to contribute equally. In many restorative justice conferences, participants sit on chairs facing each other across an empty centre. In some hearings observed in various Australian jurisdictions, the empty circle appears almost oppressive; in one hearing the ‘offender’ sank lower and lower into his chair as his misdeeds were recounted until his chin was almost resting on his knees. In New Zealand, however, in family group conferences, a low table is generally provided to offer a measure of symbolic protection, as well as somewhere to place documents.
      What is perhaps most distinctive about the way family group conferences are spatially organised in New Zealand is the way the circle is broken at a key point, something that does not seem to be done in most other jurisdictions. After generally exploring the outcome options that might be feasible, the session is adjourned. The convenor, victims, and others retire to an adjoining kitchen to have a cup of tea, while the young person is given a white board marker and asked, usually in the presence of parents, if they are there, to write down what outcomes he or she considers reasonable. Once this is achieved, the rest of the group is invited back while the young person remains standing beside the whiteboard to go through the reasoning behind the proposal. The proposal is mostly accepted, although it is not unusual for the quantum proposed (hours of community work, drug counselling etc.) to be scaled back by the convenor to something that is consistent with comparable offences. The way space is organised here operationalises ‘taking responsibility’ in a strongly symbolic way – the young person is given control over the whiteboard marker, the chance to draft outcome actions, the decision when to invite the others back into the room, and the floor to outline the proposed actions. So in a sense the configuration of the space for this form of restorative justice can best be described not so much as a circle, but as a disrupted circle. It is the disruption which creates the opportunity for responsibility to be seized by the young person. The idea that justice can be seen as a form of disruption of the everyday can be found in the work of Ricoeur (1995 & 2001) and Garapon (1997); the way the family group conference is organised seems to be an exemplar of this process.
      The spaces that shape the post-conference experiences are undoubtedly varied. In some outcome agreements, the person is banned from certain areas at certain times – in Dunedin this was typically the centre of town on a Friday night (except when changing buses). The relevant spaces in these cases are the prohibited spaces. In places where community police have a role, such as early cases observed in the Australian Capital Territory, the young person and the police tend to make remarks to the effect that they will ‘see each other around’, usually on the streets. So the conference may have served to initiate or develop a relationship between police and young people, which may (or may not) serve to defuse future incidents.

    • 2 Indigenous justice hearings

      Like ‘traditional’ restorative justice conferences, there are a variety of courts that can be considered ‘Indigenous’. As with the restorative justice conferences, the point of this discussion is not to provide a systematic review of this diversity but pinpoint a few features of the way spaces are organised that seem to be important.
      Indigenous justice processes are similar to ‘traditional’ restorative justice hearings in that, for the most part, they are classified as sentencing hearings. In other words, the person has to plead guilty as the price of admission to the hearing.
      The ‘prior’ spaces that underlie many Indigenous justice processes, even if not explicitly mentioned, are sometimes the spaces of colonisation. In the hearings observed in South Australia, Victoria and NSW, the magistrates and support workers are sensitive to the background of those who come before them and provide an opportunity for the person and other members of their mob (tribe) to put the immediate incident into a wider context. For example, when a magistrate began to chide a young person for theft, the Indigenous liaison officer interjected ‘but you stole our land’. This was apparently said in jest, but it served to remind everyone that whatever minor offence the person was charged with, it paled in comparison to the alienation of the land that accompanied White settlement. In another case, an Aboriginal man had been charged with hitting an official who had removed his father from a nursing home without the explicit consent of the son (Tait, 2018). The court heard that the father had been part of the stolen generation – children who had been seized by police and removed from their families, and in many cases never saw their parents again. The son saw the removal of his father from the hospital as part of a second removal. The magistrate allowed respected Elders to recount some of the history to provide the context, and the matter was resolved without imposing any penalty.
      The configuration of Indigenous courtrooms is quite different from that of typical restorative justice conferences (Murphy, Grant & Anthony, 2021). In Australia, participants generally sit around the bar table, which in specially built courtrooms are generally oval. The magistrate is usually flanked by Elders who take an active role in finding out about the person’s family background, life and circumstances. There are additional symbols to indicate that the space has been specially set aside for Indigenous use. In the Nunga (Indigenous) courtroom in Port Augusta, South Australia, a tapestry can be pulled down to cover the Bench, while the bar table is reconfigured to allow participants to sit around it. Flags, which are normally nowhere to be seen in Australian courts, are prominently displayed. The Aboriginal flag symbolises the red land that gives strength to the people (but also the blood spilt in defending it), and the Black people who live on it, with the sun providing nurture. The Torres Strait Islander flag also has a black strip to represent the Black people of the region; it adds blue to reference the water that islanders are surrounded by and a five pointed star in the centre to symbolise navigation. Almost as an afterthought the Australian flag is put alongside them, with the prominent Union Jack in the top corner reminding observers of Australia’s settlement history.
      Like drug courts, any ‘sentence’ in the Australian Youth Indigenous courts is typically postponed for a period (twelve months is reasonably common for young people), while the hearings may focus on their own form of restorative justice – ensuring the person has a birth certificate and so can get a driving licence, getting the person’s physical and dental health checked, linking the person to educational opportunities and jobs, and assisting the young person to connect to traditions, extended families and the country. On ‘graduation’ a cake is produced, and participants hug each other to celebrate the achievement. This is followed by a formal sentencing process in which the magistrate moves from the bar table, retires to put on her robes, and returns to the Bench to deliver a formal sentence (usually some form of dismissal taking into account the extensive work the person has undertaken over the period before the court). Compared to traditional restorative justice procedures, the ‘victim’ rarely appears. A police prosecutor is there, but for the most part contributes to the reintegrative narrative of the other participants.
      The space of the courtroom is thus re-imagined, with the oval table the centre of activity, and participants seated around it at the same level. In some such courtrooms, the magistrate sits at the middle of the long axis, flanked by Elders, at other times on the side. The person sits alongside counsel, typically from an Aboriginal legal service, and the Aboriginal liaison officer (if there is one) with the prosecutor at the other end of the table. Having a table rather than an empty well in the middle of the room may reduce tension.
      If the imagined other space in the restorative justice conference is the formal courtroom overseen by a judge, the imagined other space in Indigenous courts tends to be the prison or the police cell. This is also the ‘post’ space that the court seeks to avoid. Even ‘successful’ graduates of the system will have spent several episodes in custody over their period under the supervision of the court. Indeed, one of the indicators of success cited for the system is the reduction of days spent in custody during their ‘membership’ of the court compared to an equivalent period afterwards (Williams, Tait, Crabtree & Meher, 2018). Carceral spaces however may figure inadvertently within an Indigenous court process – in one case observed in Port Augusta, South Australia, the young person came up for the hearing from cells below the courtroom through the glass cage that constituted the dock on non-Indigenous court days. The magistrate was embarrassed and expressed regret, but it did serve to remind participants that Indigenous people were overrepresented in the prison system by some fourteen times.
      Rangatahi courts in Aotearoa/New Zealand, part of the Youth Court, have a stronger cultural element than Australian Indigenous courts (Taumaunu, 2014). From the point of view of justice spaces, the most obvious difference is that hearings for the fifteen courts scattered throughout the country take place on maraes, traditional meeting houses. Judges are Māori. Hearings begin with a powhiri (traditional welcome ritual). The young person is expected to deliver their pepeha in te reo Māori (the Māori language), identifying their iwi (tribe) and whanau (extended family), specifying the mountain and river their group identifies with, and their own name.
      Rangatahi courtrooms tend to be arranged in a more formal manner than their Australian counterparts. After the welcome ceremony, which includes a Christian prayer, the Youth Court judge typically sits in the middle of the head table, with kaumatua (male) and kuia (female) Elders on the tables on either side at right angles. The young person sits at a separate table facing the judge, usually required to stand when addressing the court.
      Whether holding hearings in traditional meeting spaces rather than western-style courts changes the dynamics of hearings is a question that could be tested, but to the extent that loss of contact with tradition has contributed to the person ending up before a court, strengthening cultural connections are a relevant response.

    • 3 Tribal conciliation gatherings in Jordan

      Bedouin tribes throughout the Middle East use customary law to settle many disputes, with tribal leaders holding tribal gatherings to forge agreements and prevent an ongoing cycle of violence.1x This information comes from fieldwork carried out as part of a PhD thesis by Munzer Emad, Tribal customary law in contemporary Jordan: conciliation and security through Bedouin justice, currently under examination. These processes are used in Jordan not just for so-called ‘traditional’ disputes involving honour, blood feuds and violation of a previously agreed settlement, but a range of other matters like derogatory Facebook posts, disputes between students on university campuses, altercations between members of Parliament, and road accidents. Nor are tribal conciliation processes limited to members of tribes; they are widely accessible and used by Palestinians, Syrian refugees, Chechens, Pakistanis and many other groups.
      The spaces used for a tribal conciliation process (sulha) are quite different from the suburban homes, courtrooms or even maraes used for restorative justice conferences or Indigenous courts. A tent is typically set up in a large open area, often in the middle of town, which is able to accommodate up to several hundred people. A tent represents ‘home’ to nomadic tribespeople, used to traversing the deserts of Arabia and North Africa on camel. It is a temporary space that is erected and then dismantled. Inside the tent, leaders (sheikhs) of the two tribes sit in parallel lines facing each other, about a metre apart, while other members of the tribe sit behind them listening to the speeches. Also present may be religious leaders, police chiefs and sometimes regional governors. A cameraman is often there to film proceedings, and either streams the event live or puts it on Facebook or YouTube. The leaders all sign the agreement. Dia (blood money or compensation) is typically a central part of the agreement, even for cases of homicide, although offenders may also serve some time in the state prison system as well. Coffee and dates are shared to symbolise reconciliation after agreement is reached.
      The ‘prior’ spaces of tribal justice are a key part of the process, and probably the most controversial. Up to five generations of the offender’s male relatives are typically evacuated to a nearby village (Jalwa) to avoid retaliatory violence. These mass evacuations may be organised by regional governors assisted by police, although they are sometimes done voluntarily, and sometimes it is the victim’s extended family which seeks shelter elsewhere. People thus dislocated are therefore unable to act as breadwinners, so the disruption to economic livelihoods as well as family life can be considerable. The system, however, has considerable support because it does seem to prevent revenge killings, and it acts as a strong incentive for the offender’s tribe to agree to a truce and to reasonable terms of settlement. Other ‘prior’ spaces can be the places where atonement is made in order to encourage the offended tribe to take part; such rituals include the visiting delegation standing outside the home of the victim and having ashes poured over their heads.
      After the conciliation settlement is agreed, the tent comes down. The sheikhs take on the role of keeping their young hotheads in order; a breach of the order signifies a loss of face for the sheikh as guarantor of that settlement. The most important space, post-hearing, shifts to the police station where the agreement is archived. It is also the place where regular meetings are held between sheikhs, police chiefs and, increasingly, representatives of women’s organisations (who are increasingly recognised as a key part of the delivery of justice). At one such meeting observed by the second author, a Chechen woman actively participated in the discussion.

    • 4 Conclusion

      The following conclusions may not be generalisable to all types of restorative justice practice. But even for the three approaches considered here, there is considerable diversity between the configuration of the rooms used. Classic restorative justice conferences are typically configured as an empty circle with the participants seated on chairs around the edge of the circle, although we saw that in New Zealand a low table might also be provided. Participants in Indigenous courts in Australia gather around an oval table within a courtroom, while those in a Rangatahi court are arranged in a hollow square within a marae. Meanwhile leaders in a tribal gathering sit across from each other in two rows.
      Even if the configuration of the spaces looks rather different between the three types of processes, one thing that the three types of spaces can be seen to share is some type of representation of ‘home’. Courts traditionally have used as their model the temple, the palace, the castle or some other form of public edifice. These restorative processes use instead something more familiar (in both senses of the word), heimlich, places that symbolise a return to somewhere where participants feel grounded, where they belong. The tent is the ultimate image of the home for a sedentary tribe – it provides shelter from sandstorms sweeping in from the desert; it proclaims its presence to the surrounding population. Yet (at least in this case) it is temporary; it does not assert durability like a castle or temple, but like a family it is there when it is needed. The suburban house, often used for family group conferences in New Zealand, is another representation of home. The movement between living room and kitchen facilitated the major transition during the hearing to preparing the action plan. The marae is the symbolic home of the tribe, a place where the people gather to perform important ceremonies and celebrate their identity. The courtroom for an Australian Indigenous court hearing is transformed by adding artwork and often concealing some of the trappings associated with western justice processes. Even the flags can be seen as an attempt to make the environment more supportive by explicitly recognising Indigenous identity. The ceremonies of cutting the cake for graduations turns the bar table into the kitchen table.
      There is another aspect of the three types of processes that can be seen as akin to a family event, something that would make participants feel if not exactly ‘at home’, at least give them a feeling of familiarity. It is the fact that, to a considerable extent, the key decisions have already been made, and so do not need to be openly talked about at the family gathering.
      The price of entry for all of these types of processes is an acknowledgement by one of the parties that the person is in the wrong. The hearing does not review this decision, which was done in private. It can be uncomfortable when whatever evidence that comes out is not entirely consistent with the agreement about who is responsible (such as in the Dunedin conference reported earlier). But it does mean that the hearing spaces, whether in rows or circles, are not designed as spaces of deliberation. There is no adversarial contest so no need to represent a duel or adversarial contest. These are action spaces, spaces of conciliation and hope, places where a more peaceful future is mapped out.
      The prior spaces are still there in the minds of the participants. The visiting delegation from the offending tribe can probably remember having ash poured over their heads as part of the reconciliation process. The young Indigenous person can remember the times spent in police lockups before being referred to the specialist court. The participant in the family group conference can recall being referred to the process by a Youth Court judge. These memories could all feed into a recognition that the process that the young person is taking part in is, in a real sense, a celebration of home.

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    Noten

    • 1 This information comes from fieldwork carried out as part of a PhD thesis by Munzer Emad, Tribal customary law in contemporary Jordan: conciliation and security through Bedouin justice, currently under examination.


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