Reflections on conferencing practice: The need for accreditation and the dangerous debate?

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1 Reflections on conferencing practice: The need for accreditation and the dangerous debate? Peter Condliffe and Kathy Douglas * Recent developments in mediation accreditation raise the question whether similar accreditation initiatives are appropriate to the practice of restorative justice and in particular the practice of conferencing. This article explores the synergies between mediation and conferencing and considers whether accreditation is appropriate for conferencing. INTRODUCTION Restorative justice practice 1 had its beginnings in Ontario, Canada in 1974 with the localised implementation of a victim-offender mediation program before spreading across the country. Victim-offender mediation programs have also had a relatively long history in the United States and, to a lesser extent, the United Kingdom. Victim-offender mediation programs are now widely dispersed around the world. In these programs, victims and offenders are brought together to discuss the offence and negotiate reparation. In Australia, victim-offender mediation was first trialled (unsuccessfully) by the Dispute Resolution Branch of the Department of Justice in Queensland in More recently a process known as conferencing has emerged. In Australia and the Pacific region, restorative justice programs based upon the conferencing process have been widely adopted. 2 Each Australian State s jurisdiction has seemingly followed its own particular needs and predilections. There is consequently little conformity and one is left with a confusing jigsaw of legislation, models and practice. 3 Conferencing is the third-party facilitation of an issue, usually through the bringing together of those affected in a circle arrangement, to discuss concerns and to possibly develop an action plan to address those concerns. It is a staged process where the convenor, or co-ordinator, gives participants the opportunity to tell their story of the experience of a crime or a conflict. It is closely aligned with victim-offender mediation but differs from that process due to the inclusion of a wider group of people in the meeting. 4 Conferencing in the criminal justice context generally includes family members, police, youth workers, victims and victim support workers and, possibly, lawyers. Many debate the effectiveness of conferencing. 5 In particular, there has been considerable research relating to the issue of whether the experience of conferencing leads to reduced re-offending. In contrast to the research regarding the effectiveness of conferencing, there is little research available relating to the practice of conferencing from the perspective of the convenor of the process. At present * Peter Condliffe is a Barrister and Consultant Facilitator, as well as the Inaugural President of the Victorian Association for Restorative Justice. Kathy Douglas is a Lecturer at RMIT University, a mediator at the Dispute Settlement Centre, and Treasurer of the Victorian Association for Restorative Justice. 1 Restorative justice processes seeking restorative justice outcomes include victim-offender mediation, community and family group conferencing, circle sentencing, restorative programs in juvenile justice, and programs in indigenous justice. See United Nations Office on Drugs and Crime, Handbook on Restorative Justice Programs (Criminal Justice Handbook Series, New York, 2006) pp For a recent discussion of the various programs in each State in Australia and in the Pacific region, see Maxwell G and Hayes H, Restorative Justice Developments in the Pacific Region: A Comprehensive Survey (2006) 9(2) Contemporary Justice Review Condliffe P, Putting the Pieces Together: The Opportunity for Restorative Justice in Victoria (2005) 79(8) Law Institute Journal Moore D, Managing Social Conflict: The Evolution of a Practical Theory (2004) 21(1) Journal of Sociology and Social Welfare There are numerous reports dealing with research into conferencing and restorative justice. For details of some of this research see Restorative Justice Online: viewed 19 July One of the most recent and comprehensive projects, dealing with issues relating to offenders and victims, is Sherman LW and Strang H, Restorative Justice: The Evidence (Smith Institute, 2007). 140

2 Reflections on conferencing practice: The need for accreditation and the dangerous debate? in Australia, it would appear that there is no systematic accreditation of conference convenors, such as that being introduced into the aligned mediation industry. After much debate in the mediation industry, there has been progress relating to the implementation of accreditation and standards for mediators; two approaches to accreditation have been formulated. The first approach is a voluntary base level accreditation scheme, recently accepted by the mediation industry, known as the national mediation accreditation system. 6 The second approach is a legislated compulsory accreditation system provided for in the Family Law Amendment (Shared Responsibility Act) 2006 (Cth) which outlines an accreditation system for family dispute resolution practitioners, including mediators. The purpose of this article is to canvass recent developments in the accreditation and standards for mediators in order to examine the issue of whether accreditation and standards would be appropriate in the context of conference convenors. The article will discuss whether initiatives in mediation should be replicated in the conferencing industry, given the differences in the philosophy and delivery of each alternative dispute resolution (ADR) option. It will consider whether a voluntary scheme, such as the new national mediation accreditation system, might provide conference practitioners with a benchmark to improve their practice. First, it is necessary to discuss in more detail the process of conferencing and consider its synergies with the practice of mediation. CONFERENCING AND MEDIATION: SYNERGIES AND DIFFERENCES When considering the synergies and differences between these two ADR processes, it is important to remember that neither are clearly defined in the literature. The practice of conferencing is diverse. Most conferencing practice is informed by the theoretical philosophy of restorative justice and this philosophy has itself been debated in terms of definition. 7 Put simply, restorative justice attempts to place the victim with the offender at the centre of the process. Therefore, instead of defining crime solely in terms of a violation of the State, it attempts to define crime in terms of the violation of one person by another. The focus is upon providing a forum for the offender to take responsibility and to make amends, rather than to establish guilt and exact punishment. 8 The potential benefits include increased participation for victims who, rather than being spectators to a court sentencing process which they do not fully understand, can participate and speak their feelings directly to the person who has caused the injury. Victims also can attempt to seek answers to questions about why the crime occurred and participate in the process of working out how the injury and damage can be repaired. On the other hand, offenders have an opportunity to admit their offence and to understand the consequences of their behaviour on others and also participate in how to make things right. Generally, offenders will only participate where there has been a acknowledgement of guilt and they voluntarily agree to be part of the process. Restorative justice therefore attempts to move the emphasis from guilt and punishment to responsibility and reparation. In this model, justice is achieved through the offender taking responsibility for their actions and taking steps to make reparation and addressing the harm to the victim/s. Conferencing also tends to acknowledge the role of community in the process of restoring harm. 9 The role of the community is limited in some models of mediation. For instance, the settlement, evaluative and facilitative models are not normally associated with including the community as a consideration in the way that the dialogue of the mediation unfolds. 10 Arguably, 6 National Mediation Conference, Mediator Accreditation in Australia (Report presented to the 8th National Mediation Conference, Hobart, Tasmania, 3-5 May 2006): viewed 19 July For a discussion regarding definition difficulties relating to mediation, see Douglas K, National Mediation Accreditation Scheme: In Search of an Inclusive Definition of Mediation (2006) 25 The Arbitrator and Mediator 1. Regarding definition difficulties relating to conferencing and restorative justice, see Daly K, Hayes H and Marchetti E, New Visions of Justice in Goldsmith A, Israel M and Daly K (eds), Crime and Justice: A Guide to Criminology (3rd ed, Lawbook Co., 2006) pp Braithwaite J, Crime, Shame and Reintegration (Cambridge University Press, 1989); Braithwaite J, Restorative Justice and Responsive Regulation (Oxford University Press, New York, 2002). 9 Moore, n 4 at For a discussion of these models, see Boulle L, Mediation: Principles Process Practice (2nd ed, LexisNexis, 2005) pp

3 Condliffe and Douglas interest-based models of mediation utilising negotiation theory tend to focus upon individual needs. 11 In contrast, the transformative model of mediation does include in its philosophy of conflict transformation a consideration of community. 12 Thus the transformative model, particularly with its emphasis upon social psychology and the emotional dimensions of conflict, is possibly closer to the practice of some forms of conferencing than other models of mediation. Moore makes the point that conferencing generally occurs in a different administrative place to mediation and is based upon a transformative conflict approach. 13 He argues that mediation typically takes place as an adjunct to court systems, while conferencing can be both an alternative and an adjunct to court processes. 14 He also argues that conferencing differs from mediation in its emphasis upon a whole community affected by an incident or incidents and the associated conflict. Further, he states that conferencing is designed for cases where interpersonal conflict is the presenting problem. Moore makes a distinction between the terms conflict and dispute. 15 He regards the term conflict as a more general description than the term dispute. He categorises a dispute as involving at least two persons but not necessarily involving negative feelings. Conflict, in his view, specifically involves negative feelings. He concludes therefore that when someone admits, as in the typical pre-conference scenario, having acted in a way that offended or victimised others, there is an undisputed harm although not necessarily any dispute between participants. Therefore, rather than negotiating (as in a mediation) to solve the problem of the dispute, the primary goal in conferencing is to acknowledge the conflict between people and then transform this conflict into co-operation. In a sense, conferencing can be seen as a subset 16 of mediation practice or a type of mediation practice where the focus is upon transformation. The practice of mediation does not in the authors view preclude this approach, but rather is a question of ideological adherence to a particular model. Moore s approach follows exploration in the mediation movement itself of paradigms of conflict that posits the need for transformation in a manner similar to the way that he describes. The catalyst for this change in thinking around mediation (arguably, not yet fully developed) has been largely the work of Bush and Folger in their discussion of transformative mediation, but there are also a number of other writers and practitioners that might be described as transformative in their approaches. It could be argued that the impetus for the approach advocated by conference convenors is echoed in the approach of those who have become known or style themselves as transformative mediation practitioners. 17 MEDIATION AND ACCREDITATION The role of the National Alternative Dispute Resolution Advisory Council (NADRAC) is to advise the federal government in relation to ADR. Beginning in 2000, NADRAC began providing discussion papers and reports regarding the accreditation of mediators. 18 Issues arising from the debate in regards 11 Moore, n 4 at Bush RA and Folger JP, The Promise of Mediation: The Transformative Approach to Conflict (revised ed, Jossey-Bass, San Francisco, 2005). 13 Moore, n 4 at This assertion is debatable, given the diversity of practice in mediation and the significant use of mediation in contexts that are not court connected, such as disputes in teams in business or as part of internal grievance processes. 15 Moore, n 4 at One of the key differences in practice from most mediation models is the inclusion in conferencing of a wide group of participants who are given the opportunity to tell their story as part of the process. Braithwaite maintains that this wider group, a plurality of voices supports the convenor to handle inappropriate behaviour: Braithwaite J, Doing Justice Intelligently in Civil Society (2006) 62(2) Journal of Social Issues 393 at Importantly, Fisher distinguishes mediation that explores transformative practice and the Bush and Folger Transformative Mediation (TM) which he argues is a distinct model that should not be confused with the more general efforts by mediators to bring about transformative change: see Fisher T, Transformative Mediation: Differentiating Principles from Illusions Part 1 (2006) 9(3) ADR Bulletin National Alternative Dispute Resolution Advisory Council (NADRAC), The Development of Standards for ADR, Discussion Paper (2000); NADRAC, A Framework for ADR Standards (2001). 142

4 to mediation have resonance in any discussion of the need for accreditation of conference convenors. The work of NADRAC culminated in the 2004 report entitled, Who Says You re a Mediator: Towards a National System of Accrediting Mediators. 19 This report followed extensive consultation in relation to an earlier discussion paper, including forums in each capital city. It contains 21 recommendations for government and non-government agencies involved in ADR, and provides a framework for the ongoing development of ADR standards. In particular, the report calls for ADR service providers to adopt and comply with self-regulated codes of practice, and for the inclusion of such codes in any agreements for the provision of ADR services. It also usefully outlines a range of knowledge, skills and ethical standards that may be adapted into a code of conduct. After release of its discussion papers and reports, NADRAC found support from the mediation industry for the development of standards including to: maintain and improve the quality and status of ADR; protect consumers; facilitate consumer education about ADR; build consumer confidence in ADR services; improve the credibility of ADR; build the capacity and coherence of the ADR field; and promote Australia s international dispute resolution profile. 20 It has become progressively clear that there is sufficient support for the introduction of some forms of accreditation in the mediation industry. The recently accepted proposal for a national accreditation system shows that the mediation industry, with all its diverse practices, will attempt to accredit and articulate standards for mediators. 21 Government, in the context of family law, has supported and spearheaded revised requirements for the practice of mediators in this area. Family dispute resolution practitioner accreditation is an important part of the significant changes to family law that have been recently passed by the federal government. Family dispute resolution is the new term for processes used to resolve disputes in family law. Under s 10F of the Family Law Act 1975 (Cth) as amended by the Family Law Amendment (Shared Responsibility Act) 2006 (Cth), the term family dispute resolution is left remarkably open, specifying only that the third party be independent and assist in helping to resolve the dispute, but it is likely that one of the most utilised processes will be mediation. Under s 10A(1) and (2) of the legislation, there will be a new accreditation system for family dispute resolution practitioners. Work has been undertaken to develop competency-based learning to be delivered via a vocational graduate diploma in family dispute resolution. 22 As indicated, there has been progress in the setting up of a voluntary national system to accredit mediators. A proposal for a National Mediator Accreditation System was released in mid-november 2005 and consultations with the mediation community were then undertaken. The proposal for accreditation was accepted at the 8th National Mediation Conference in Hobart in May The role of accrediting individual mediators will rest with recognised mediator accreditation bodies (RMABs) likely to include large mediator membership groups. An implementation committee has been formed to set up the new system and draft practice standards have recently been released. ACCREDITATION ISSUES RELATING TO THE PRACTICE OF CONFERENCING Many of the reasons for the introduction of accreditation protocols for mediation could be applied to conferencing, although there are a number of issues that differentiate the areas and require some 19 NADRAC, Who Says You re a Mediator: Towards a National System for Accrediting Mediators (2004). 20 NADRAC, Legislating for Alternative Dispute Resolution: A Guide for Government Policy-Makers and Legal Drafters (2006) p 57. Reflections on conferencing practice: The need for accreditation and the dangerous debate? 21 There is a danger that the new system may constrain mediation practice to certain privileged models due to the utilisation of the NADRAC definition; see Douglas n 7 at Community Services and Health Industry Skills Council, Family Counselling, Family Dispute Resolution & Children s Contact Services Project, Draft 2 Qualifications: viewed 20 July These qualifications, as amended, are likely to be endorsed by the National Quality Council in July

5 Condliffe and Douglas consideration. These include the comparative newness of the conferencing field and its dependence upon government subsidiaries or outsourced government-funded services. Related to this is the fact that the practice of conferencing, unlike a substantial amount of mediation, occurs principally within highly regulated contexts. Conferencing mostly occurs as an adjunct to court-based schemes and is increasingly used in other institutionalised settings such as schools. 23 Finally, the role of the convenor is little researched, explained or understood in the literature. 24 Arguably, since the bulk of conferencing practice occurs in agencies rather than in private practice, the overall need for accreditation in the conferencing sphere may be less evident than in the mediation industry due to the institutional regulation that most likely already occurs. However, this argument should be tempered with the knowledge that, due to the paucity of research into conferencing practice, conferencing standards in agencies are unclear and it may be the case that practice is somewhat ad hoc. Braithwaite refers to the debate around standards and accreditation as dangerous. He states: I worry about accreditation for mediators that raised the spectre of a Western accreditation agency telling an indigenous elder that a centuries-old restorative practice does not comply with the accreditation standards. 25 Braithwaite is concerned that standards may become too prescriptive and thus inhibit innovation. He observes that with regard to practice, restorative justice is still evolving and the industry is still learning how to do restorative justice well. Braithwaite s caution is also fuelled by observations regarding the still rudimentary state of evaluation research. Nevertheless, he concedes that because there exists practice masquerading as restorative justice, there is little option but to enter into a prudent standards debate. He favours open-textured standards, meaning broad statements of standards. He is concerned to avoid legalistic regulation of restorative justice practices to which overly specific standards may lend themselves. This approach is a values-based approach using the framework of various United Nations human rights instruments and emphasising the need to prevent domination (or power imbalances) within restorative processes practices. Indeed, the United Nations is moving towards the establishment of a set of principles for restorative justice in criminal matters. 26 Clause 12(c) of its Basic Principles On the Use of Restorative Justice Programs in Criminal Matters provides that member states should, inter alia, consider establishing guidelines for the qualifications, training and assessment of facilitators of restorative justice processes. Braithwaite is also equally concerned that standards ensure that people are not stigmatised by the process and that the needs of not only offenders but those of victims and affected communities are also addressed. He grapples with the problem of proclaiming standards, yet ensuring that there is some level of accountability in what are relatively closed processes. His solution is to suggest that a range of observers, including peer reviewers, have ready access to restorative justice processes so as to ensure adherence to standards. Braithwaite clearly belongs to that body of opinion that prefers a relatively informal non-bureaucratic approach to the accreditation of convenors. This is contrasted or opposed by a view that convenors should be highly professionalised and qualified. 27 It is interesting to observe that Braithwaite and other commentators place the accreditation of practitioners within the context of standards of practice. These two matters surely overlap but the latter is a wider concern which brings in not only the individual training and standards expected of the practitioner, but also organisational, 23 Roche D, Dimensions of Restorative Justice (2006) 62 (2) Journal of Social Issues Roche argues that in this respect convenors have much to learn from the literature relating to mediation, in both understanding differences in models of dispute resolution and in the role of the third party: Roche, n 23 at Braithwaite J, Standards for Restorative Justice (Paper presented at the United Nations Crime Congress, Ancillary Meeting, Vienna, 2000): viewed 19 July Basic Principles were endorsed by the Economic and Social Council in More recently, the declaration of the 11th United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 2005 urged the further development of restorative justice policies, procedures and programs. See also United Nations Office on Drugs and Crime, n 1, p Nadeau J, Critical Analysis of the United Nations Declaration of Basic Principles on the Use of Restorative Justice Programs in Criminal Matters (2004): viewed 19 July

6 Reflections on conferencing practice: The need for accreditation and the dangerous debate? structural, and system-wide issues particularly related to resourcing, placement and legislative safeguards. If one considers the range of programs that identify themselves as restorative in Australia, one is struck by the dissimilarities between the various systemic and organisational contexts but the relative sameness of their reliance upon conferencing. The United Kingdom s Training and Accreditation Group s advice to its government on these issues concluded that core skills across the various contexts of conferencing practice in that country were the same. 28 They further concluded that there was a need for new occupational standards for restorative practice. 29 This report recommended that the Association of Restorative Practices (ARP) in that country ensure that its criteria for membership be based upon the attainment of certain training or pre-existing training. 30 The report lists a set of key knowledge and skills. 31 It outlines six separate areas of competencies that should be considered in training and accreditation of restorative practitioners. These are: core restorative practice; sensitive and complex cases; family group conferencing and processes involving welfare planning; co-working; case supervisors; and line managers. 32 The rationale for these recommendations is essentially twofold. First, to ensure quality of service to all participants in such processes; and second, because restorative practice is a recognised and respected activity and profession. 33 It is clear that the extent and practice of conferencing in the United Kingdom is much more extensive than in Australia. Moreover, it has the distinct advantage of having a relatively unitary system of justice administration, unlike Australia with its kaleidoscope of State jurisdictions and their jigsaw of programs. In the authors view, this diversity in programs presents one of many impediments to a national accreditation and training scheme in Australia and may slow down any attempt at a similar unitary scheme to that which operates in the United Kingdom. This diversity of the Australian programs perhaps points to the need for some identification of core knowledge and skills that can be then applied into training and accreditation systems as suggested above. This is because, while legislative and procedural requirements may differ, there are at the core of these programs similar practice paradigms. It is clear that the accreditation of conveners and the implications this has for their training, educational qualifications and perceived professionalism will have a significant impact upon the way these programs are run and administered. Along with the establishment of standards for the administration of such programs, this will lend itself to the relative formalisation of restorative justice within the criminal justice system or other systems. The traditional ways of measuring success within the criminal justice system, such as recidivism, cost-effectiveness, timeliness and satisfaction rates, may not be the best way of measuring the success of restorative justice processes. This is because there is a basic difference in underlying values between the retributive and restorative modes of operation. This is not to say that restorative justice programs are not successful using these traditional parameters; rather, that measuring something which is fundamentally different in its underlying values approach requires some different thinking. The present incorporation of restorative justice processes within traditional criminal justice systems is taking place in three different, although not necessarily separate, ways. These are: (a) a gradual replacement of traditional correctional practices with restorative justice programs; (b) attempts to allow restorative and traditional programs to co-exist independently of one another; and 28 United Kingdom Home Office (UK Home Office), Best Practice Guidance for Restorative Practitioners and their Case Supervisors and Line Manager (2004 ) p UK Home Office, n 28, p UK Home Office, n 28, p UK Home Office, n 28, p UK Home Office, n 28, p 15 ff. 33 UK Home Office, n 28, p

7 Condliffe and Douglas (c) the integration of principles and practices into the repertoire of the States court correctional interventions. 34 The first way is bound to be hindered by resistance from the established political and correctional infrastructures. The central feature of the justice model of Western societies is that the State attempts to control deviant actions through well-established institutional frameworks. The second implies that decisions must be made as to which cases are appropriate for restorative justice programming. Evidence in Australia so far indicates that restorative justice is likely to be used in only a fragmented fashion for less serious offences. 35 The third way would mean the attempted implementation of restorative justice practices in agencies that are occupied with bureaucratic needs and interests, which can be antithetical to the process. This can lead to a possible distortion of the restorative practices. Traditional criminal justice systems operate within highly bureaucratic frameworks. Compassion and understanding are desirable outcomes of restorative practice, but these feelings may not be forthcoming in settings where these emotions and values are made subservient to bureaucratic priorities. The other concern is that restorative programs could become part of the mentality (policy agenda) that cheaper control is better than no control at all, with the aims of restorative justice becoming secondary to fiscal objectives. The work of Foucault and others has illustrated how correctional systems have moved from being emotionally charged public spectacles to ones which are hidden from public view and administered by bureaucrats striving for rationalised management of punitive processes. 36 This movement away from the public eye has caused criminal justice processes to be less emotionally charged, but with the result that the community may feel alienated from them. This leaves a dilemma for those who would want to implement restorative justice programs. On the one hand, if such programs were tied to the existing criminal justice bureaucracy, the greater the potential for community alienation from them. On the other hand, those that are not tied to criminal justice bureaucracies are likely to experience difficulty being implemented widely. The development of a set of overly rigid accreditation standards and protocols may not only stultify practice (as Braithwaite suggests), it may also affect the development of the underlying values and the ethical ethos that is emerging. In some ways one can equate this with the slow development of ethical principles over many centuries in our criminal justice system. If prematurely developed, such standards may further impede developments in restorative justice. This necessarily implies both a thorough understanding of these core values and their recognition in developing accreditation and standards protocols. Traditionally, the Western criminal justice system has relied upon well-established principles of due process to protect participants in the process. The question posed by the debate around accreditation and standards is: do these principles apply to restorative justice processes in the same way as in traditional justice system? If not, does this mean that standards of accreditation and practice should be broad enough to allow flexibility in process? In attempting to heal the harm to victims and communities affected by wrongdoing, the role of the offender and the network of rights surrounding him or her may be affected. However, imposing strict guarantees of due process on restorative justice processes may be detrimental to their effectiveness and even change their fundamental meaning. 34 Minor K and Morrison JT, A Theoretical Study and Critique of Restorative Justice in Galloway B and Hudson J (eds), Restorative Justice: International Perspectives (The Criminal Justice Press, New York, 1996). 35 Note there is now some support for the use of restorative justice practices in sexual assault: see Daly K, Restorative Justice and Sexual Assault: An Archival Study of Court and Conference Cases (2006) 46(2) British Journal of Criminology 334. Also, conferencing has been used to address conflict between family victims and offenders in homicide matters: Booth T, Altered Perceptions of Conflict in Homicide Matters: The Role of Victim-Offender Conferencing (2003) 14 ADRJ Foucault M, Discipline and Punish: The Birth of the Prison (Vintage, New York, 1979). 146

8 Reflections on conferencing practice: The need for accreditation and the dangerous debate? Related to this concern is the role of lawyers in the process. Most standards would include the need for offenders and sometimes victims to be ensured legal representation and advice. 37 The issue, however, is to the extent of the representation. Most restorative justice advocates would argue that the processes they engage in are more understandable and transparent and less combative (conflict escalating) than traditional adversarial processes. Therefore the need for lawyers is lessened. This indeed may be the case, but most restorative systems in this country are relatively small in scale and scope. The potential abuse of persons will become more evident as these systems grow or become incorporated as part of large-scale programs. The authors would argue that procedural safeguards are required and will need to be carefully worded. Restorative justice has developed, in part, as a way of ensuring that not only victims, but also wider sections of the community could both participate, and understand their participation, in the criminal justice process. In the traditional legal system, a select, highly educated and trained group of people administer and run the system. Would the development of accreditation protocols and standards be the first step in this direction? In particular, would it lead to the co-option of restorative justice by this select group of legal practitioners? An underlying principle of restorative justice is community involvement, including that of the convenors with their communities. Placing arbitrary and excessive constraints on participation in the process on convenors may begin or accelerate the progression to a co-opted system removed from its community. This is especially so for our indigenous communities. If guidelines and standards are to be adopted they need to take account of these underlying communitarian principles. In the sense that Moore talks about transformation of conflict, the convenor is not unlike a judge, in that he or she provides a process that listens to all parties in an even-handed manner, but is also empathetic and engaged sympathetically at an emotional level with the range of participants in the process. Not only does the convenor have to create a safe environment in a relatively informal setting, but he or she has to do so in a way that enables the parties to explore and ventilate deep-seated feelings and beliefs. These approaches are not generally characteristics of the legal process, except perhaps in new problem-solving courts in our criminal justice system, and the traditional legal system needs to be flexible enough to allow these innovations, ie to respect and value these processes. Power imbalance, for both victims and offenders, is a crucial concern in the literature about restorative justice. 38 Young offenders are particularly subject to such imbalances. Victims can easily be re-victimised in processes that do not recognise these various layers of power. Accreditation protocols and standards must take into account the subtleties of power. 39 Conveners must be able to understand and screen not only offenders, but victims as well. As many administrators of restorative programs attest, most of the work is done in screening and preparing parties for processes like conferencing rather than in the conference itself. Offenders tend to be heavily screened in most Australian programs. This is because they are mainly in the juvenile sphere and pre-court processes. Also, issues of guilt or culpability often have largely been dealt with already. However, this may not be so evident in programs that move outside this sphere or which occur in systems such as schools. It is possible for both offenders and victims to manipulate restorative justice processes to ends that are not within the objectives of the program. Obviously, convenors need training in these dynamics so as to be able to safeguard the range of individuals involved. This will be especially so as these programs expand. 37 For example, the recently legislated model of group conferencing passed in Victoria includes the requirement for legal representation; see s 415(6) of the Children, Youth and Families Act 2005 (Vic). However, in other models of conferencing, legal representation may not be the norm. 38 Notably, Braithwaite posits that power rests in conferencing with the stakeholders rather than the third party and due to the plurity of voices there is less need for the convenor to act to address power concerns as participants will collectively deal with these concerns: see Braithwaite, n 16 at The concept of power in mediation has been increasingly debated, see, eg Astor H, Some Contemporary Theories of Power in Mediation: A Primer for the Puzzled Practitioner (2005) 16 ADRJ 30. In restorative justice processes, power has been begun to be researched see, eg Presser L, The Micropolitics of Victim-Offender Mediation (2006) 76(3) Sociological Inquiry

9 Condliffe and Douglas The potential for an accreditation system for conference convenors to provide an articulated core process along with appropriate standards, training protocols, and possibly a forum for ongoing theory and skills development is enticing. However, the dangers of such an endeavour are real and the authors therefore do not believe that a mandated system is appropriate. Rather, a voluntary system may be worth exploring as a means of providing convenors with a benchmark for practice. CONCLUSION There are a number of developments in relation to accreditation and standards of mediators in the civil jurisdiction. This article has endeavoured to canvass some of the similarities and differences between mediation and conferencing in an attempt to explore whether accreditation systems might be appropriate in the conferencing context. It has been noted that conference accreditation might create an orthodoxy of practice that could curtail the growth and development of conferencing. However, similar to the developments in mediation practice, accreditation may assist in improving third-party practice and provide benchmarks for standards. In this respect, the option of a voluntary national accreditation system may be the appropriate model for the conferencing industry to adopt. It is still too early in the conferencing context to know if accreditation and standards are the best way forward to assist developments in practice. In this article, the authors have raised some initial concerns and benefits of pursuing such a course. 148