| Summary: | 碩士 === 東海大學 === 社會學系 === 105 === Restorative justice has been practiced internationally for many years, but different countries take different approaches regarding the types of cases that restorative justice is applied to and the effectiveness of restorative justice. For example, countries such as New Zealand, Australia, and the United States emphasize restorative justice in handling juvenile crimes but consider domestic violence and sexual assault cases particularly unsuited to restorative justice. This is in direct contrast to the practices in Taiwan, where restorative justice is seldom applied to juvenile cases, but domestic violence is considered extremely suitable for restorative justice.
We reviewed existing literature and found that all studies related to the nature of restorative justice or dispute settlements using restorative justice all reveals that artificially constructed dialogue situation is the core part of restorative justice. Therefore, in this research we wish to examine how to construct the artificial dialogue situation and how to make the artificial dialogue situation work in restorative justice.
We assert that the companions and facilitators of restorative justice frame and define the situation surrounding the dispute between a plaintiff and a defendant through pre-meeting discussions and restorative dialogues. In doing so, they create a “relatively reasonable dialogue situation” similar to the ideal speech situation as defined by Habermas, and the two parties use this situation as a basis for dialogue. In either pre-meeting discussions or dialogues, the key functions of the facilitators and companions are to act as intermediaries to empower the plaintiff and defendant and assist both parties with engaging in self-dialogues, through which the parties can express their true feelings and clarify their true needs. The facilitators and companions also collaborate to create a script for dialogues in the future. Furthermore, in the dialogue process, they introduce or elicit the emotional (processing the emotions of both parties and how they relate to the world to advance to the next step), rational (helping both parties recognize their own wrongdoings and injustices), and legal (reminding certain restrictions and mandates to allow both parties to achieve an acceptable balance of gains and losses) dimensions related to the dispute to help both parties construct a situation and framework that allow for dialogues. Under these circumstances, the nature of the primary motives or considerations in the decision to pursue litigation or restorative justice influences the discrepancy in expected outcome between the plaintiff and defendant and is a key factor in the success of the dialogue. The facilitator must identify and understand this discrepancy prior to discussions and attempt to reconcile the two parties or help them to find alternative solutions to the dispute. Motivations for the decision to pursue litigation or restorative justice are solving a problem, seeking justice, or punishing the other party. The expected outcomes corresponding to these motivations are reaching a consensus, acknowledging a grievance, and inflicting further harm, respectively. The discrepancy in expected outcome between the plaintiff and defendant is inversely proportional to the success of the dialogue; in other words, a greater discrepancy in expected outcome is less likely to produce successful dialogue. Our findings showed that dialogue was more likely to be successful when the motivation was “solving a problem” and dialogue was least likely to be successful when the type of case was “punishment–inflicting further harm.”
|
|---|
