Field, Rachael --- "Victim - Offender Conferencing: Issues of Power Imbalance for Women Juvenile Participants" [2004] MurdochUeJlLaw 12; (2004) 11(1) Murdoch University Electronic Journal of Law

Victim – Offender Conferencing: Issues of Power Imbalance for Women Juvenile Participants

Author:	Rachael Field BA, LLB, LLM, Grad Cert Ed Lecturer, Queensland University of Technology School of Justice Studies Faculty of Law
Issue:	Volume 11, Number 1 (March 2004)

Contents

• Introduction
• Juvenile women and the criminal justice system
• Juvenile victim-offender conferencing – a specialist form of dispute resolution for the criminal justice context
• Juvenile women and victim-offender conferencing
• Young women offenders and their capacity to participate effectively in conferences
• Imbalances of power that operate against young women offenders in conferences
• Neutrality or lack of bias in third parties such as convenors
• Other issues for young women offenders in conferencing
• Conclusion
• Notes

Introduction

1. The criminal justice system is a difficult place for young women to find themselves. Clearly still in a minority, traditional systems of court processing and detention have failed to deal with the social and gender issues that contextualise their presence in the system. The introduction of alternative, informal processes, such as juvenile victim-offender conferencing, has created a greater potential for juvenile women offenders to be involved in more appropriate processes that could possibly result in their long-term diversion out of the criminal justice system. These processes are now increasingly being used,[1] which positively indicates that alternatives like conferencing are moving “away from the margins and closer to the mainstream of how we do justice in our society.”[2] With this move, however, and as more referrals and conferences occur, the imperative to protect vulnerable participants increases. This means that the need for analysis and critique of issues relating to the practice and procedure of conferencing in terms of just outcomes for young offenders is now more pressing than ever.[3] In particular, young women can face a number of gendered practical and process disadvantages in victim-offender conferencing which impact on their effective participation and consequently can result in unjust outcomes from the process.

2. This paper provides a feminist critical analysis[4] of important power-based participation issues for young women offenders in a current model of victim–offender juvenile conferencing.[5] It considers issues that impact on the appropriateness for both genders of juvenile victim-offender conferencing, and argues that young women participants have special needs and issues arising out of additional gender-related power imbalances.[6] These issues need to be confronted if conferencing is to offer just outcomes for young women offenders.

   Juvenile women and the criminal justice system

3. To set the context for considering issues for young women participants in juvenile conferencing, some consideration needs to be given to general issues for juvenile women in the criminal justice system.

4. First, young women offenders are a minority group in the juvenile justice system and as such continue to be misunderstood and are often described as “difficult” or “troublesome”.[7] Whilst adolescent antisocial behaviour is itself often referred to as “a serious social problem”,[8] the broader societal and political perception of that problem is exacerbated in relation to juvenile women offenders as a result of persistent patriarchal constructs about what behaviour is appropriate for young women. As Sandor notes, juvenile offenders “have historically been the ‘problematised’ object of social anxiety” even though “their offending behaviour is for the most part minor and short-lived.”[9] As a subset of this problematised group, juvenile women offenders are “forced to cope with daunting and shocking conditions, (and) manage accommodations at tremendous cost to themselves.” [10]

5. Related to the fact that the number of young women in the criminal justice system is low and the system’s understanding of young women and their issues is limited, is the dilemma that programs available to young women continue to be inadequate.[11] Moore comments on the “strong evidence that girl-specific services are needed which can support the policies of diversion”.[12] The persistent emphasis on young men in the system also means that existing programs are inadequate in terms of responding to the heterogeneous nature of young women offenders.[13] The tendency in the system to essentialise young women to some extent means that those programs that do exist, are not always able to recognise or accommodate issues of cultural and social difference. For example, there is “a paucity of empirical data which considers specifically the issues relating to Aboriginal young women”.[14]

6. Another important contextual issue is that of a persistent bias against young women in the criminal justice system.[15] For example, Krisberg and Austin comment that “young women continue to be arrested and incarcerated for behaviours that would not trigger a similar response for young males.”[16] This bias is reflective of the broader patriarchal nature of law in general, and the male-centricity of its form, language, and substance.[17] The gendered approach to juvenile justice is merely an extension of the law’s overall paternalism.

7. Further, without homogenizing juvenile women offenders, research has been able to tell us something about the nature of their experience within the criminal justice system. We know, for example, that “the vast majority of offences committed by young women are poverty related,”[18] that there are overt connections “between violence, family break-up, negative contact with welfare agencies and police, and the move from welfare needs to eventual criminalization,”[19] and that many young women offenders contemplate or attempt suicide on the basis that they feel nobody cares and they are tired of being angry and frustrated.[20] Many young women offenders also live in a world where being ‘good’ makes them unpopular and boring,[21] where they feel displaced, and where they remain unable, for example, to pay for their bus or train ticket.[22]

8. Finally, it appears that, whilst young women continue to be a minority group in the criminal justice system, statistics indicate that their numbers are increasing.[23] In Queensland, there was an expectation that the Juvenile Justice Act 1992 would “substantially reduce the number of young women in the justice system because they could no longer be brought before the court for ‘status offences’ such as homelessness or sexual promiscuity.” [24] However, this reduction has not eventuated; rather it would appear that the net has actually widened and consequently the level of state control increased.[25] Further, research suggests that the “extent of offending involving young women is much more significant than their rate of apprehension indicates.”[26] The issues raised in this paper therefore have ongoing and possibly increasing relevance to addressing justice for women in informal processes in the criminal justice system.

   Juvenile victim-offender conferencing – a specialist form of dispute resolution for the criminal justice context

9. Victim offender conferencing programs “reject traditional methods of juvenile justice that are deemed to be ‘stigmatising’, and substitute instead a process of negotiation and reparation whereby the offender is (ostensibly) appropriately shamed for the offence that has occurred.”[27] Conferencing aims include diversion from traditional criminal justice processing,[28] and the creation of a “more decent, less oppressive criminal justice system.”[29] Essentially, conferencing is designed “to bring victims and offenders together to talk about what happened and develop agreements to ‘make things right’.”[30] In this way, the victim and the offender reclaim the offence from the state, and it becomes in this alternative forum more like a dispute between them as individuals which is capable of negotiation and private resolution.

10. Conferencing advocates usually claim that the process incorporates “equally the needs and perspectives of both offenders and victims.”[31] And that the process is positively future focused,[32] in a context that safely allows a discussion of the past offence. This in turn is said to provide the offender with an opportunity to take responsibility for her actions,[33] and to make a commitment that they will not re-offend.[34] The generally positive aspects of conferencing for juveniles have been articulated as follows (note the emphasis on the empowering nature of the process, a quality that has contributed to assertions that the process has “something to offer for everyone”):[35]
    • Offenders are empowered through active participation in a non-stigmatising and re-integrative process;
    • Families are strengthened through their involvement and focus on their responsibilities;
    • Victims are empowered through active involvement and enhanced possibilities of reparation;
    • The community is empowered through taking back control of resolving conflicts from the state;
    • And yet the process can still be said to take crime seriously.

11. Conferencing participation and outcome statistics tend also to be positive. For example, one study in the United States has found that “most victims and offenders chose to meet face to face with the other party” when contacted by the mediation service.[36] In this study 48% of conferences reached a written agreement.[37] “Of all cases in which agreement was reached, 96.8% of the contracts were completed or were current; only 3% failed to be fulfilled.”[38] The base line, however, of success in relation to conferencing is a less easily measured variable of whether “victims and offenders feel involved in the process and in the decision” and whether “victims feel better as a result of the process and if offenders make amends to the victims.”[39]

12. Whilst the theoretical benefits of conferencing are persuasive, and are supported by some (although still not enough) empirical evidence; there remain some substantial issues and problems to be addressed. For example, in the conferencing environment, it is certainly possible for offenders and victims to remain uninvolved in the decision-making process, or to use the process inappropriately.[40] In what remains an alternative forum that is still developing, young offenders do not always have the information they need to contribute fully, and professionals can become paternalistic,[41] or have inadequate standards of professional practice.[42]

13. Conferencing can be argued also as possibly simply extending the stigma circle to an alternative, or rather additional, environment.[43] Polk has commented that because processes like conferencing are still very connected with the criminal justice system and the state (for example in Queensland referrals are made only by either the arresting police officer or the court), they are more a process of diversion “into a program” than “out of the system”.[44] Auerback has expressed concern that the “search for justice without law has deteriorated beyond recognition into a stunted off-shoot of the legal system”.[45] And Zehr comments that “unless underlying traditional assumptions and values are transformed to alternative assumptions and values, alternative processes will rarely end up as real alternatives.”[46]

14. In addition to these more general issues there are some particular concerns relating to juvenile offender participation in conferencing; for example, issues relating to possible breaches of due process, pressure on young offenders to plead guilty, power imbalances deriving from age, and the possibility of harsh, disproportionate or inconsistent penalties negotiated in the private conferencing environment.[47] These issues are discussed briefly below as they apply to both young women and men who participate in conferencing. Some of the concerns, as Warner has pointed out, can also be raised in relation to the way that other diversionary processes operate.[48] The seriousness of these issues in the conferencing context is exacerbated, however, by the vulnerability of the young participants and the implications attaching to unjust or inappropriate process outcomes. There is consequently a particular need to emphasise, articulate and address concerns that relate to juvenile conferencing environments as they potentially impact so significantly on young people’s lives and futures. As Polk has commented, “there is a particular obligation to assure that young people are not worse off as a result of this diversion process.”[49]

15. The first significant concern for juvenile offenders of both genders in relation to participating in victim-offender conferencing is the informal and private nature of the conferencing process. In the conferencing environment, young offenders do not have the benefit of the safety net of public scrutiny and formal accountability measures.[50] Decisions by young people to admit guilt to avoid formal criminal justice processes,[51] to plead guilty to lighten their sentence,[52] or to agree to inappropriately harsh outcomes due to inadequate knowledge and information, impact on the broader public interest of the welfare of our young citizens. Removing these decisions to a process where they are out of the public view, and are perhaps made without the benefit of legal counsel, jeopardises the legal and human rights of juvenile offenders.[53]

16. The private nature of conferencing has the potential also to reverse the positive effects of the work of juvenile offender advocates by relegating their issues to an environment with no formal or public protections, and no ability to set precedent or reinforce developing societal and legal norms that support young citizens. In contrast, the public nature of the legal system ostensibly ensures that coercive legal powers are used appropriately and that there is at least some form of safety net for the possibility of inappropriate actions on the part of those involved in processing young people through the criminal justice system.[54]

17. Related to this issue are concerns about the ‘voluntary’ nature of young offenders’ participation in conferencing. The National Alternative Dispute Resolution Advisory Council (NADRAC) identifies a participant’s ability to “make a free and informed choice to enter” an informal process like conferencing and the absence of any “threat, compulsion or coercion to enter or stay in the process”,[55] as important in terms of the fairness of the process. Braithwaite, too, asserts that it is critical that “at any point up to the signing of a final agreement, defendants should have the right to withdraw, insisting that the matter be either adjudicated before a court or dropped.”[56] This is an important theoretical right, but many young participants may not perceive that they have any real power to terminate the process, particularly for example, if they consider themselves to be subject to coercion from the victim, their family,[57] or other authority figures in the process such as the convenor or the police. The voluntary nature of a participant’s choice both to enter and to remain in an informal process is one that has been much debated in alternative dispute resolution circles.[58]

18. We can also be critical of the claim of conferencing that offenders are empowered through participating actively in the process[59] and through taking responsibility for their actions. Meaningful, and therefore empowering, participation by young offenders can be compromised in a number of ways. Young offenders may think, for example, that there is little point in fully engaging with the process if they don’t see on the part of the victim, convenor or police a convincing understanding of the general social, familial and political realities of their world.[60] The focus on the misdeeds of the young person can be meaningless if they are forced to take responsibility for them and are shamed for them without any full contextualisation of the social and political framework in which they occurred - for example, school influences, family violence, poverty, unemployment, homelessness, and discrimination.[61] As Marshall has said: “If society is to expect active responsibility on the part of the offender, then it must be able to balance the offender’s efforts with acceptance of responsibility on the part of the community to support such efforts.”[62]

19. Further, we know that many young offenders are victims themselves of family or social abuse.[63] For example, of the young offenders interviewed in a study by Chesney-Lind and Shelden all had experienced some form of abuse.[64] In this context the possibilities of empowerment are lost to the potential for conferencing to “reinforce the ‘blame-the-victim’ syndrome (in relation to offenders as victims of social justice)”.[65] Sandor has therefore referred to the futility of the victim/offender dichotomy,[66] and to the need for a better articulation of the “ways in which young women and young men portrayed as victimisers are victimised themselves.”[67] In addition, of particular concern is the possibility that a young offender’s empowerment in a conference will be severely diminished if they are accompanied and ‘supported’ by a member of their family who is in fact their abuser.

20. This is not to say that “the intellectual practice and the political practice of the people who have been involved in promoting conferencing in Australia” has ignored the social and political exigencies of young offenders.[68] But rather that in the instance of conferencing, the claim of empowerment of offenders illustrates a potential divide between conferencing theory and the realities of its practice. It is important that this divide be bridged through the development of a better understanding of juvenile conferencing that is situated in its broader context. Sandor’s view is that in order to achieve this we need to “keep three themes in high public profile: the structural determinants of offending; the need for policy measures which are based on such a structural perspective; and the way in which young offenders are victimised by units of the juvenile justice system.”[69]

21. Finally, NADRAC’s comprehensive consideration of issues of fairness and justice in alternative dispute resolution has identified significant issues of disadvantage for adolescents in processes such a mediation and conferencing on the basis of factors relating to their age and place in the life cycle.[70] Adolescents can suffer from a lack of access to, and availability of, information, paternalism on the part of process convenors, stereotyping, the impact and consequences of family dysfunctionality, and power imbalances relating to their lack of experience and expertise in negotiation. NADRAC’s paper notes that “adolescents can also be exploited because their level of articulateness is not fully developed and they generally lack experience in managing disputes.”[71]

22. Whilst these are general concerns that have application to juvenile offenders of both genders, the next sections of the paper elaborate on additional concerns that are specific to young women in the process. Although these issues cannot be discussed without acknowledging that informal processes such as conferencing address a number of matters on the feminist agenda, they nevertheless confirm the great need for caution and care in our approaches to promoting juvenile conferencing, and to ensuring that its practice is appropriate for young women.

    Juvenile women and victim-offender conferencing

23. Kitcher has commented that “conferencing with young women raises many ethical, political and social considerations which differ from those which may arise (with participants from other demographics).”[72] In particular feminists are concerned that informal processes such as conferencing risk the perpetuation of gendered power imbalances, and the reinforcement of the subordination of young women within families and communities.[73] Although it is true that the liberal legalist’s notion of equality before the law is limited and problematic – it is in some ways safer than the way power is dealt with for women in private environments such as conferencing. At least, as was noted above, before the law we have relative public accountability and an appeal process.

24. For a process like conferencing to be perceived as ‘fair’ or ‘just’ there must be both procedural fairness as well as substantive fairness; that is, fairness in relation to the way the process operates and justice in terms of the process outcomes.[74] In informal processes, any lack of procedural fairness is likely to mean that substantively fair outcomes will not be possible. The two notions of justice are therefore inextricably linked.

25. NADRAC lists a number of factors that are emphasised generally in relation to informal justice processes in terms of defining fairness.[75] These issues reflect the interconnectivity of procedural and substantive justice issues in the conferencing environment. Three of the issues have a particular relevance to the participation of young women offenders, and the appropriateness of the process for them in terms of its ability to provide just outcomes. The first is “that all parties have the capacity to participate effectively,”[76] the second is that there is “a balance of power between the parties,”[77] and the third is that “any third party who is involved in the process is unbiased, and that lack of bias is apparent.”[78]

    Young women offenders and their capacity to participate effectively in conferences

26. The social and political context of gendered relations and perceptions of young women offenders affects their capacity to participate effectively in conferences. Otto says of the ‘new’ juvenile justice system that “rather than reducing the extent of control exercised … over young women’s identities and lives, aspects of the new system have the potential, directly or indirectly, to reinforce young women’s subordination.”[79] In this context, Bargen has called for more empirical information on the “nature and level of the participation of young women in various forms of conferencing”.[80] In particular she notes that issues relating to police based referrals to conferencing and also police involvement in the process are important considerations in terms of issues that may affect or compromise effective participation by young women.[81]

27. The capacity of young women to participate effectively in conferences is also affected by narrow constructions of appropriate conduct by girls and leads to potentially inequitable outcomes for them.[82] Stubbs has said that in terms of how girls’ behaviour in conferences might be judged or controlled that “we shouldn’t presume that the informal is necessarily benign or even neutral.”[83] In fact the limited definition of family and community as they are represented in individual instances of conferencing can potentially allow free reign to even the most restrictive constructs of what is appropriate behaviour for women and girls. As Stubbs comments, “conferences may simply reproduce such practices in the absences of checks and balances of the formal system.”[84]

28. Another issue that potentially impacts on young women offenders’ capacity to participate effectively in conferences is the “gendered meaning and experience of shame.”[85] As Sandor has noted, Australian culture is one in which “shame has been a powerful tool of domestic control over women”,[86] and the process of self-harm rather than violence towards others is known to be a particularly likely response among young women to emotional pain and frustration.[87]

    Imbalances of power that operate against young women offenders in conferences

29. Power, who has it and how it is used, in the context of informal justice processes is a difficult and vexed issue. Conferencing environments are not sanitised from the continuing patriarchal structures in society and families. The strength of the disadvantage that women can suffer in informal dispute resolution contexts is related directly to gendered power issues that affect their general ability to advocate effectively for their own interests.[88] As a result, it is anathema to many feminist writers, for example, that mediation is used in domestic violence matters,[89] and yet Braithwaite and Daly have promoted conferencing in this context on the basis that it offers the potential to create a space for feminist voices, to restore power imbalances and empower victims of violence.[90]

30. Certainly young women offenders face different power imbalances in relation to potentially all the other participants in a conference; the victim, the police officer, the convenor and also even their support person or family member. For example, the victim has a moral power over the offender which is extended through a power deriving from their choice to be present in the process and their choice to come face to face with the young person who has harmed them. Of course, the police have the inherent coercive authority and power of the state behind them. Indeed, the current practice of the shame and reintegration model of conferencing unavoidably represents a state-derived form of control over young women that plays, in particular, on their submission to family and community authority.[91] As such, the model represents an opportunity for the continuation of structural abuse and subordination of young women.[92]

31. The convenor of a conference is in a significant position of power and influence. In a 1995 study conducted by the Family Conference Team in South Australia, 30 young women were interviewed and when asked who had the power in the conference their response was: “the Coordinator.”[93] Kitcher comments that of those 30 young women “all agreed that a conference was ‘better than going to court’, but they also agreed that in the actual conference, they felt that they were the least empowered in terms of negotiating the outcome.”[94]

32. The convenor’s power derives particularly from their authority and control over the process itself. They decide who will speak, when and for how long. They have the power to use process interventions and to interrupt in an environment where other participants are required to hear each other out. They also have the power to terminate the process. And as the research of Greatbatch and Dingwall has shown, they have the power to influence the final outcome of the process through their choice of interventions and control over the direction of negotiations and their content.[95]

33. The young offender’s support person or family member is also a participant who potentially has a relationship of power in relation to the young women. Their power is of a more personal nature, deriving from their familial or support relationship and their consequent intimate knowledge of the offender, her personal history and her private identity. Sandor identifies family involvement as raising issues of concern because we now better understand the extent, and family-based nature, of the shadow of violence and abuse that is part of the history of young women offenders.[96] In a context where many young women offenders are victims themselves of abuse, conferencing can place them in a situation where the perpetrator of abuse against them, a member of their family, is in fact directly involved in the conference and in determining its outcomes.[97]

34. These considerations indicate that the positive claims about conferencing relating to self-determination and offender empowerment are significantly undermined in relation to young women’s participation. They also evidence that the practice of juvenile justice conferencing may work to entrench and exacerbate the ability of family, community and the state to exercise patriarchal control and domination over young women.[98] Indeed it is acknowledged in critiques of other informal processes, such as mediation, that their emphatic focus on party empowerment can potentially result in ignoring “the power differences between men and women that put women at a disadvantage in negotiating with men.”[99]

35. Parity in the negotiating environment is therefore not a reality for many young women offenders who participate in conferencing. Further, the disempowerment they can experience is of a particularly insidious nature if it is achieved, as it might be by police or by abusive or controlling family members, predominantly through making the young woman fearful. As Kelly, a strong proponent of informal dispute resolution, has said, “When parties’safety is threatened, or they are too fearful to voice their ideas, or fear reprisal outside of mediation, they do not belong in the mediation process.”[100]

36. These problems relating to power in procedural issues connect directly to substantive outcomes. As Stubbs has noted, gender-related power imbalances can put into doubt any ability for a process to result in genuine consensus in terms of outcome.[101]

    Neutrality or lack of bias in third parties such as convenors

37. It is said to be fundamental to perceptions of conferencing as a fair and just process, and convenors often claim, that they are neutral and that they specifically avoid judgment and notions of blame in terms of the parties’ conflict.[102] These claims of neutrality are made notwithstanding the fact that neutrality is increasingly being recognised as a myth,[103] and despite what we know about how mediator (and therefore also convenor) values and judgments do enter the process and influence outcomes.[104] The danger for young women offenders in the context of conferencing is that under the veil of false neutrality, convenor values can drive the direction of negotiations and resultant agreements. If, for example, the convenor is a misogynist, or if they are unimpressed by what can be viewed as ‘difficult’ behaviour on the part of the young woman, then she is likely to be significantly disadvantaged by the convenor’s influence over the outcome.[105]

38. It is therefore potentially very problematic for young women offenders that the reality of the power of the convenor is not accurately reflected in the rhetoric of neutrality. That this happens in a private environment where the offender is struggling with other factors that compromise her ability to represent and fight for her own interests merely exacerbates the potential for injustices to occur.

    Other issues for young women offenders in conferencing

39. Added to these concerns is the fact that convenor training does not yet include sufficient focus on analysis of gendered issues in conferencing to ensure the truly safe participation of juvenile women offenders in the process. And as long as the mediation profession remains unregulated and relatively unaccountable, and convenor training is not uniformly or consistently provided, there is no way of ensuring that all conferences are convened by someone who is trained adequately on gender issues.

40. Interestingly, feminist advocates for young women offenders can find themselves, as a result of these issues, “in the traditionally right-wing position of advocating law and order, amidst an outpouring of humanitarian sentiment favoring use of informal techniques such as mediation.”[106] This does not have to be the case however. Rather, the positive aspects of conferencing for juvenile offenders, and in particular young women offenders, need to be capitalized on and we need to seek ways of ensuring that the process is practised in a fair and just way, and that it results in appropriate outcomes. One possible approach in terms of achieving this is perhaps through a better articulation of convenor ethics in relation to their use of power in the process. This proposal represents the author’s current doctoral work in progress.

    Conclusion

41. Polk has commented that “What has been learned above all else from the past is that our best intentions efforts can go very wrong.”[107] Whilst the intentions of conferencing are to empower young women offenders and allow them to make things right, the application of the concept of shaming and any decontexualised requirement for young women to take responsibility for their misdeeds, can have negative, intimidating and disempowering consequences for young women offenders. In a private negotiating context where imbalances of power work against the interests of young women participants, the ability of the conferencing process to deliver procedurally just practice and substantively fair and appropriate outcomes is potentially seriously compromised.

42. It is important to recognize, however, the realpolitik that juvenile victim-offender conferencing involving young women has come in from the margins and will persist. In the light of this the emphasis should be on developing appropriate practice and procedures.[108] The focus of this development must be on enhancing the ability of conferences to provide justice – particularly to vulnerable participants such as young women offenders. Central to achieving this aim will be a better articulation of ethical practice for convenors, particularly relating to their use of power in the conferencing process.

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Notes

[1] For example, the Acting Coordinator of the Brisbane/Gold Coast area Mr M McMillan advised (17 November 2003) that due to amendments to the Juvenile Justice Act 1992 (Qld) promoting diversion to conferencing 174 referrals have been received to date in 2003 which contrasts to 51 referrals at the same time for 2002. In the year to date figures 108 conferences have occurred.

[2] MS Umbreit (1995) “The Development and Impact of Victim-Offender Mediation in the United States” 12(3) Mediation Quarterly 263 at 274.

[3] “With the growth of restorative justice, the need for tools to assess exactly what programs are doing, how they are doing, and for whom, becomes more evident and more pressing.”: L Presser and CT Lowenkamp (1999) “Restorative Justice and Offender Screening” 27(4) Journal of Criminal Justice 333.

[4] Naffine has called feminist criminology “a healthy, robust and rich oeuvre which poses some of the more difficult and interesting questions about the nature of (criminological) knowledge”: N Naffine (1997) Feminism and Criminology, Allen & Unwin: NSW at 4. Nevertheless it can still be said that the ongoing emphasis in criminological studies is one where academic men study criminal men and where “women represent only a specialism, not the standard fare.”: Naffine (1997) at 1. Cunneen and White have also noted the “male-centredness of the criminological enterprise” and the important role of feminists in challenging criminology to consider the relevance of gender to analyses: C Cunneen and R White (1995) Juvenile Justice – an Australian perspective, Oxford University Press: Melbourne at 155. Alder also notes that “most of the literature thus far on restorative justice assumes a generic rather than a gendered youth population: young women are virtually invisible.”: C Alder “Young Women Offenders and the Challenge for Restorative Justice” in H Strang and J Braithwaite (eds) (2000) Restorative Justice: Philosophy to Practice, Ashgate Dartmouth: UK at 105.

[5] The model focused on here is that currently used by the Juvenile Justice Branch of the Department of Families in Queensland. This model is not unlike other conferencing processes used around Australia and internationally. It can be described in brief as follows: The process begins by referral from either a court or police. Intake is conducted with potential participants – offender and victim. The offender must have either admitted guilt or pleaded guilty. The process is based on a single convenor model and the convenor conducts the intake process also. In the intake process convenors assert their neutrality which they link to (a) not being directive as to the outcome (ie leaving the determination of the outcome to the young person and the victim) and (b) not taking sides in the conference. Support persons are allowed for both participants but must be evenly matched in number. The arresting officer attends. The conference takes place at a neutral venue such as a community hall. There is a circle of chairs with no tables (to avoid barriers to communication). The chairs are labeled with participants’ names – but only first names. This is to ensure some level of anonymity but also to ensure the informality of the process. The convenor begins the conference with introductions and the setting of ground rules relating to behaviour, confidentiality and participants’ rights. The police officer reads the charge and the young person is asked to agree. The process then begins with the juvenile offender giving their statement first with prompting from the convenor to develop a full picture of why the offence was committed. The victim is asked to hear them out. The victim then gives their story of how the crime impacted on them. The victim’s support people are then given an opportunity to speak followed by the offender’s support people who are prompted to give a statement in support about the offender. Then the police officer speaks. The offender is then asked about whether there is anything new or surprising to them in what they’ve heard said by others. This allows them an opportunity to evidence to the victim that they have listened and often leads to an unprompted apology. This process then allows for a transition from the past of the offence to the present and then onto the future in terms of developing an agreement. Any agreement is put into writing. It usually involves an apology and if other elements to the agreement exist then someone at the conference will agree to monitor that (eg the offender’s mother will monitor the writing of a letter of apology). Biscuits and coffee are offered to participants while the agreement is formally written up and this also allows for a witnessing of formal reintegration as victim and offender converse in the context of their new relationship. Agreements are forwarded to the court where appropriate.

[6] The existing literature appears to place greater emphasis on conferencing participation issues for victims than on issues for offenders. See for example, M Delaney and J Wynne (1990) “The Role of Victim Support in Victim/Offender Mediation” 6(2) Mediation Quarterly 11; M Umbreit (1994) Victim Meets Offender: The Impact of Restorative Justice and Mediation, Monsey, NY: Criminal Justice Press. Danny Sandor notes the “political imperative in being seen to meet the needs of victims of crime” and raises concerns about the implications for the just treatment of offenders in the context of this focus: D Sandor (1994) “The Thickening Blue Wedge in Juvenile Justice” in C Alder and J Wundersitz (eds) Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism? Australian Institute of Criminology: ACT. The focus on offenders’ rights and experiences is less ‘popular’ but crucial to the development of appropriate and just alternative approaches in the criminal justice system. See, for example, Sandor’s comments regarding advocates for offenders being labelled ‘bleeding hearts’: Sandor (1994) at 154 referring to C Stockwell (1993) “The Role of the Media in the Juvenile Justice Debate in Western Australia” in L Atkinson and SA Gerull (eds) National Conference on Juvenile Justice, Conference Proceedings No.22, Australian Institute of Criminology: Canberra. These issues relate directly to young offenders’ participation in conferencing.

[7] Juvenile Justice Branch (2002) Programs for Young Women in the Juvenile Justice System Department of Families, Queensland at 1 available at www.families.qld.gov.au/youth/publications/index.html. See also C Alder and N Hunter (1999) ‘Not Worse, Just Different?’ Working with Girls in Juvenile Justice. A Report Submitted to the Criminology Research Council, Canberra, Australia, Criminology Department, The University of Melbourne: Melbourne.

[8] For example, WR Nugent and JB Paddock (1995) “The Effect of Victim-Offender Mediation on Severity of Re-offense” 12(4) Mediation Quarterly 353 at 353.

[9] Sandor (1994) at 155.

[10] M Chesney-Lind and RG Shelden (1992) Girls, Delinquency, and Juvenile Justice, Brooks/Cole Publishing Company: California at 182.

[11] Juvenile Justice Branch (2002) at 1. In particular “Non-custodial programs for girls in the juvenile justice system remain largely overlooked and underfunded.”: Juvenile Justice Branch (2002) at 2. Cunneen and White also comment that (when they were writing in 1995) “The response of juvenile justice (in the context of gender, young women) is still focused on detention.”: Cunneen and White (1995) at 173.

[12] E Moore (1993) “Alternatives to Secure Detention for Girls” in L Atkinson and SA Gerull (eds) National Conference on Juvenile Justice: Conference Proceedings, Australian Institute of Criminology: Canberra 137 at 141. This is confirmed by Queensland Department of Families, Youth and Community Services (1998) Young Women and Queensland’s Juvenile Justice System, and Queensland Department of Families Youth and Community Care, (1998) What About the Girls? Available at http://www.families.qld.gov.au/youth/publications/index.html

[13] Juvenile Justice Branch (2002) at 2 referring also to L Beikoff (1996) “Queensland’s Juvenile Justice System: Equity, Access and Justice for Young Women?” in C Alder and M Baines (eds) … and when she was bad? Working with Young Women in Juvenile Justice and Related Areas, National Clearinghouse for Youth Studies: Hobart at 15 and C Alder (1993) “Services for Young Women – Future Directions” in L Atkinson and S Gerull (eds) National Conference on Juvenile Justice: Conference Proceedings, Australian Institute of Criminology: Canberra 305 at 308.

[14] Cunneen and White (1995) at 162.

[15] See for example, M Eaton (1986) Justice for Women? Family, Court and Social Control, Open University Press: Milton Keynes in which Eaton argues that “The inequalities that women experience elsewhere in society are endorsed by the process of cultural reproduction operating within the court.” (referring to Magistrates Courts in the UK) at 97. See also M Chesney-Lind (1988) “Girls and Status Offenses: Is Juvenile Justice Still Sexist?” 20 Criminal Justice Abstracts 144; and Alder (2000) at 106-107.

[16] B Krisberg and JF Austin (1993) Reinventing Juvenile Justice, Sage Publications: Newbury Park.

[17] L Snider (1998) “Feminism, Punishment, and the Potential of Empowerment” in K Daly and L Maher, Criminology at the Crossroads: Feminist Readings in Crime and Justice, Oxford University Press: New York 246 at 247 referring to the work of Catherine Mackinnon, for example, (1979) Sexual Harassment of Working Women: A Case of Sex Discrimination, Yale University Press: New Haven, (1982) “Feminism, Marxism, Method and the State: An Agenda for Theory” 7(3) Signs 515, (1983) “Feminism, Marxism and the State: Toward Feminist Jurisprudence” 8(2) Signs 635. See also, for example, C Smart (1976) Women, Crime and Criminology: A Feminist Critique, Routledge & Kegan Paul: London, R Sarri (1983) “Gender Issues in Juvenile Justice” 29(3) Crime and Delinquency 381, Women’s Coordination Unit (1986) Girls at Risk Report, NSW Premier’s Office: Sydney, J Wundersitz, N Naffine and F Gale (1988) “Chivalry, Justice or Paternalism? The Female Offender in the Juvenile Justice System” 24(3) Australian and New Zealand Journal of Criminology 359, L Gelsthorpe (1989) Sexism and the Female Offender, Gower: Aldershot, L Gelsthorpe and A Morris (eds) (1990) Feminist Perspectives in Criminology, Open University Press: Milton Keynes.

[18] D Otto (1995) “Precarious gains: young women the new juvenile justice system” in Women and Imprisonment Group, Fitzroy Legal Service Women and Imprisonment Fitzroy Legal Service: Melbourne at 95 referring to the non-payment of public transport fines and theft.

[19] Cunneen and White (1995) at 164.

[20] Chesney-Lind and Shelden (1992) at 179.

[21] Chesney-Lind and Shelden’s study indicated that young women offenders may think that it is reckless and exciting to be ‘bad’, that they fantasise about a future that involves gender roles that fall into stereotypical models, that they are “at odds with their families and emotionally distant from their peers” and frequently struggle with feelings of isolation and loneliness: Chesney-Lind and Shelden (1992) at 172 – 179.

[22] Otto (1995) at 95.

[23] Queensland Department of Families, Youth and Community Services (1998) Young Women and Queensland’s Juvenile Justice System at 19. Further, Cunneen and White refer to Alder (1984) as noting that “While girls appear to be disproportionately involved in diversion programs, they tend to be diverted for minor forms of misconduct. An unanticipated consequence of the expansion of diversionary schemes has been to draw more girls into processing by the juvenile (159) justice system for non-serious matters. Diversion has occurred for matters which would not normally have been dealt with formally by the juvenile justice system in any case.”: Cunneen and White (1995) at 158-159. Lundman also comments that “Although estimates vary, a reasonable guess is that about half of diverted juveniles would have been left alone were it not for the existence of a diversion project. Diversion means more juveniles under the short-term control of the juvenile justice system.”: RJ Lundman, (1993) Prevention and Control of Juvenile Delinquency, 2nd ed, Oxford University Press: New York at 244 at 247. These diversionary realities can be contrasted with, for example, the aim of non-intervention: EM Schur (1973) Radical Nonintervention Rethinking the Delinquency Problem Prentice-Hall Inc: Englewood Cliffs, NJ at 155 referring to Lemert’s term “judicious non-intervention”: EM Lemert “The Juvenile Court – Quest and Realities” in President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Juvenile Delinquency and Youth Crime, US Government Printing Office: Washington, DC at 96-97

[24] Queensland Department of Families, Youth and Community Care (1998) Young Women and Queensland’s Juvenile Justice System, at 1.

[25] Queensland Department of Families, Youth and Community Care (1998) What About the Girls! Young Women’s Perception of Juvenile Justice Programs and Services. See also K Polk (1994) “Family Conferencing: Theoretical and Evaluative Concerns” in C Alder and J Wundersitz (eds) Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism? Australian Institute of Criminology: ACT 123 at 133. Polk refers to Braithwaite’s assertion that the widened net is not one of state control but of community control in relation to conferencing: Polk (1994) at 134. Polk also refers to data that suggest that “diversion programs bring under police control new kinds of clients, especially younger clients who have engaged in much less serious acts.”: Polk (1994) at 135 referring to K Polk (1984) “Juvenile Diversion: A Look at the Record” 30 Crime and Delinquency 648. Many of these younger clients are undoubtedly young women. In fact Polk goes on to note the gendered nature of diversion programs saying that “diversion has resulted in a new form of gender role control, with more girls being brought in for various forms of sexual misconduct.”: Polk (1994) at 135 referring to C Alder and K Polk (1982) “Diversion and Hidden Sexism” 15 ANZ Journal of Criminology 100.

[26] Queensland Department of Families, Youth and Community Care (1998) Young Women and Queensland’s Juvenile Justice System, at 19 referring to E Ogilvie (1996) “Masculine Obsessions: An Examination of Criminology, Criminality and Gender” 29(3) Australian and New Zealand Journal of Criminology 205.

[27] Polk (1994) at 124. On the shaming approach see J Braithwaite (1989) Crime Shame and Reintegration, Cambridge University Press: Cambridge and J Braithwaite and P Pettit (1990) Not Just Deserts: A Republican Theory of Criminal Justice, Oxford University Press: Oxford. Reintegrative shaming is said to “express reprobation for the act, not the actor” which “ultimately restores ‘dominion’ to both victim and offender.”: Cunneen and White (1995) at 247. On the diversionary strategy of avoiding stigmatization for young people Cunneen and White say: “Young people are seen to be particularly vulnerable to the social effects of negative labeling, and if labeled ‘bad’ or ‘criminal’ by the courts, may take on the behaviours and attitudes described in the label.”: Cunneen and White (1995) at 247. See also, H Zehr and M Umbreit (1982) “Victim Offender Reconciliation: An Incarceration Substitute?” 46(4) Federal Probation 63; SP Hughes and AL Schneider (1989) “Victim-offender mediation: A survey of program characteristics and perceptions of effectiveness” 35 Crime and Delinquency 217; H Zehr (1990) Changing Lenses: A new focus for crime and justice, Scottsdale, PA: Herald Press; M Umbreit and R Coates (1992) Victim Offender Mediation: An Analysis of Programs in Four States of the US, Minnesota Citizens Council on Crime and Justice: Minneapolis, MN; JG Brown (1994) “The use of mediation to resolve criminal cases: A procedural critique” 43 Emory Law Journal 1247; KL Joseph (1996) “Victim-offender mediation: What social and political factors will affect its development?” 11 Ohio State Journal on Dispute Resolution 207; A Morris and G Maxwell (1997) “Re-forming juvenile justice: The New Zealand Experiment” 77 Prison Journal 125; A Morris and G Maxwell (2000) “The Practice of Family Group Conferences in New Zealand: Assessing the Place, Potential and Pitfalls of Restorative Justice” in A Crawford and J Goodey (eds) Integrating a Victim Perspective within Criminal Justice, Ashgate: Dartmouth 207 at 207-208.

[28] Note that in the US it was as early as 1974 that the Juvenile Justice and Delinquency Prevention Act was passed by Congress mandating diversion and deinstitutionalisation of juvenile offenders: referred to in KH Federle and M Chesney-Lind (1992) “Special Issues in Juvenile Justice: Gender, Race, Ethnicity” in IM Scwartz Juvenile Justice and Public Policy, Lexington Books: New York at 165.

[29] J Braithwaite (1994) “Thinking Harder About Democratising Social Control” in C Alder and J Wundersitz (eds) Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism? Australian Institute of Criminology: ACT 199 at 200. Referring to informal diversion programs in the community Cunneen and White say: “Generally, it is felt that an appropriate ‘solution’ to youth crime is linked to the development of informal user-friendly programs and services, which allow the young person to remain in or be part of a particular community.”: Cunneen and White (1995) at 240.

[30] H Zehr (1995) “Justice Paradigm Shift? Values and Visions in the Reform Process” 12(3) Mediation Quarterly 207 at 209.

[31] Zehr (1995) at 209 referring to M Wright and B Galaway (eds) (1989) Mediation and Criminal Justice: Victims, Offenders and Community, Sage: London; and B Galaway and J Hudson (eds) (1990) Criminal Justice, Restitution and Reconciliation, Criminal Justice Press: Monsey, NY.

[32] Zehr (1995) at 210.

[33] M Baines (1996) “Viewpoints on Young Women and Family Group Conferences” in C Alder and M Baines (eds) …and when she was bad?: Working with Young Women in Juvenile Justice Related Areas, National Clearinghouse for Youth Studies: Hobart 41 quoting G Maxwell and A Morris (1994) “The New Zealand Model of Family Group Conferences” in C Alder and J Wundersitz (eds), Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism?, Australian Institute of Criminology, Canberra 15-44. In 1996 the Juvenile Justice Act, 1992 (Qld) (the Act) was amended to include the notion of conferencing between juvenile offenders and the victims of their offences. S.30(4)(b) of the Act 1992 places the emphasis on benefits for offenders squarely in the realm of their taking responsibility for their offence through stating that the benefits of juvenile victim offender conferencing for the child are intended to be: (i) meeting any victim and taking responsibility for the results of the offence in an appropriate way; and (ii) having the opportunity to make restitution and pay compensation for the offence; and (iii) taking responsibility for the way in which the conference deals with the offence; and (iv) having less involvement with the courts’ criminal justice system. These benefits are articulated in the Act in the context also of intended benefits for the child’s parents, victim and also the community. Under s.35(4) the conference “must be directed towards making an agreement about the offence.”

[34] Morris and Maxwell note this benefit in relation to the Family Group Conferences model: A Morris and G Maxwell “The Practice of Family Group Conferences in New Zealand: Assessing the Place, Potential and Pitfalls of Restorative Justice” in A Crawford and J Goodey (eds) (2000) Integrating a Victim Perspective Within Criminal Justice, Ashgate: Dartmouth 207 at 217. Nugent and Paddock’s study suggests that juveniles who participate in victim-offender mediation programs are less likely to reoffend and if they do reoffend are likely to commit less serious offenders that those juvenile who go through the traditional juvenile justice system: Nugent and Paddock (1995). Cunneen and White say of diversion strategies that they “aim to forestall the movement of the young offender deeper into the juvenile justice system, and thus to reduce the possibility of stigmatization, engagement with a criminal culture, alienation from mainstream social institutions, and so on.”: Cunneen and White (1995) at 241.

[35] K Warner (1994) “Family Group Conferences and the Rights of the Offender” in C Alder and J Wundersitz (eds), Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism? Australian Institute of Criminology: Canberra 141 at 141.

[36] M Niemeyer and D Schichor (2002) “A Preliminary Study of a Large Victim/Offender Reconciliation Program” in D Schichor and SG Tibbetts (eds) Victims and Victimization Waveland Press Inc: Illinois 365 at 369 – no apparent gender analysis of participation by offenders was incorporated into this study of the Orange County VORP. Offenders who refused to participate were said to perhaps have done so because they didn’t feel that they had done anything wrong.

[37] “40% were closed without having reached an agreement (because the parties opted out or could not be located), and 19% were still in the process of being mediated.” Also in terms of outcomes, “community service was specified in 49% of the cases and 54% called for monetary compensation.” Further, “the average amount of community service was 93 hours, and monetary restitution averaged $234 (American) per case.”: Niemeyer and Schichor (2002) at 370.

[38] “The failures came almost exclusively from property offenses.”: Niemeyer and Schichor (2002) at 372.

[39] Morris and Maxwell (2000) at 214.

[40] In the context of advocacy for victims Presser and Lowenkamp argue for a standardized screening procedure that “would estimate the likelihood that the offender will cause emotional trauma to the victim” which they call ‘victim-risk’: Presser and Lowenkamp (1999) at 334.

[41] This was an issue identified by Morris and Maxwell (2000) at 217 in relation to the Family Group Conferences model.

[42] Morris and Maxwell argue that many pitfalls of Family Group Conferencing, for example, “point to poor practice”: Morris and Maxwell (2000) at 217. To address this issue of practice, the Queensland system requires convenors to have completed a 5 day (40 hour) training process with formal testing and observed facilitation leading to accreditation. There are currently 21 active convenors in the Brisbane/Gold Coast area.

[43] R White (1994) “Shame and Reintegration Strategies: Individual, State Power and Social Interests” in C Alder and J Wundersitz (eds) Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism? 181 at 191.

[44] Polk (1994) at 129. As such conferencing can be argued as “actually no more or no less than (an) alternative form of justice processing.”: Polk (1994) at 129. In fact it is not the intention of the programs to “remove the offender from the control of juvenile justice.”: Polk (1994) at 129. Contrast this with Cunneen and White’s reference to program developments in the following terms: “Diversion in a strong or traditional sense means to divert the young person from the system as a whole. At a policy level this is manifest in statements which see diversion as a form of non-intervention, or at best minimal intervention.”: Cunneen and White (1995) at 247.

[45] JS Auerbach (1983) Justice Without Law? New York: Oxford University Press at 146.

[46] Zehr (1995) at 207.

[47] Warner (1994) at 141.

[48] Warner (1994) at 141.

[49] Polk (1994) at 138.

[50] Polk refers to the fact that “It became clear early in the process of diversion that the many alternatives could themselves pose significant problems for young offenders, since these often exposed clients to the full weight of the coerciveness of the juvenile justice system without benefit of advice or proper legal representation.”: Polk (1994) at 136.

[51] Sandor asserts that diversion schemes “encourage young people to acquiesce to an allegation of guilt in order to avoid the stigma of court processing.”: Sandor (1994) at 159.

[52] Polk (1994) at 136-7.

[53] Braithwaite too concedes that this is an important issue and that “There is merit in a debate about the alternatives to the admission of criminal guilt as a basis for conferences proceeding.”: J Braithwaite (1994) “Thinking harder about democratizing social control” in C Alder and J Wundersitz (eds) Family conferencing and juvenile justice: The way forward or misplaced optimism? Canberra: Australian Institute of Criminology 199 at 205

[54] See Warner’s discussion of these issues in terms of due process: (1994) at 142-144.

[55] National Alternative Dispute Resolution Advisory Council (1997) Issues of Fairness and Justice in Alternative Dispute Resolution – Discussion Paper, Canberra: AGPS at 21.

[56] Braithwaite (1994) at 205.

[57] Sandor (1994) at 159.

[58] See for example, L Boulle (1996) Mediation: Principles, Process, Practice, Butterworths: Sydney at 15-18.

[59] Note however that this form of empowerment relates more to the offender’s engagement with the particular justice process, per se, rather than to addressing “the sources of inequalities and social vulnerability” that apply to juvenile offenders: Polk (1994) at 132.

[60] Chesney-Lind and Shelden (1992) at 182.

[61] Sandor (1994) at 156. See also Polk’s comments about needing to see the place for appropriate youth development as outside the coercive justice system and in broader social institutions such as schools etc – (1994) at 138. Jay Lindgren’s comments on social policy development in the context of juvenile justice confirm this concern. He says: “Emphasis on family, friendships, and school is correct; however, this cannot be detached from the larger social and economic context.”: JG Lindgren (1987) “Social Policy and the Prevention of Delinquency” in JD Burchard and SN Burchard Prevention of Delinquent Behavior, Sage Publications: California 332 at 343. Polk also comments that the family focus of the programs shifts responsibility onto the offender and their family for their deviance as a resultant factor of the family’s malfunction. In this way the broader contextual issues and influences of “such institutions as work, schooling, inadequate housing or medical care, lack of access to political power, or deficient recreational activities” are not made explicit or connected: Polk (1994) at 129. White argues that “much closer attention needs to be given to the deterioration of the position of young working-class people over the last two decades, and their progressive marginalisation in the spheres of production, consumption and general community life.”: White (1994) at 184.

[62] TF Marshall (1995) “Restorative Justice on Trial in Britain” 12(3) Mediation Quarterly 217 at 229.

[63] Sandor also refers to “data on the prevalence of family violence in the backgrounds of young offenders, particularly young women”: Sandor (1994) at 159. See also on issues for women in this context K Daly (1998) “Women’s Pathways to Felony Court: Feminist Theories of Law Breaking and Problems of Representation” in K Daly and L Maher (eds) Criminology at the Crossroads: Feminist Readings in Crime and Justice, Oxford University Press: New York 135. Note also for example, the existence of the Yasmar Juvenile Justice Centre in NSW that was established to provide a program for young women in detention based on a recognition of the fact that many such women have been abused themselves and are victims of broader systemic issues: referred to in Juvenile Justice Branch (2002) at 2. Chesney-Lind and Shelden comment on the predicament of young women: “Girls in the juvenile justice system have been and are survivors as well as victims. Forced to cope with daunting and shocking conditions, they manage accommodations at tremendous cost to themselves. Their behaviours may puzzle us until we understand their predicaments. Their delinquencies are, in fact, attempts to pull themselves out of their dismal circumstances.” Chesney-Lind and Shelden (1992) at 182.

[64] Chesney-Lind and Shelden (1992) at 179.

[65] White (1994) at 189. Polk also asserts that “It is highly unlikely, in fact, that working with offenders and their families will allow the major sources of institutional vulnerability to be addressed. Instead, it could easily become a complex form of ‘victim blaming’, where the most vulnerable are identified as the cause, rather than the effect, of social inequalities.”: Polk (1994) at 131.

[66] Sandor (1994) at 155 referring to Human Rights and Equal Opportunity Commission (1989) Our Homeless Children Australian Government Publishing Service: Canberra, C Alder and D Sandor (1989) Homeless Youth as Victims of Violence, Department of Criminology, University of Melbourne: Melbourne and C Hirst (1989) “Forced Exit”: A Profile of the Young and Homeless in Inner Urban Melbourne, Salvation Army: Melbourne.

[67] Sandor (1994) at 163.

[68] Braithwaite (1994) at 201.

[69] Sandor (1994) at 164.

[70] NADRAC (1997) Chapter 5 at 95.

[71] NADRAC (1997) at 107.

[72] Baines (1996) at 42 quoting J Kitcher, then Youth Justice Coordinator Family Conference Team Adelaide, Adelaide.

[73] Otto (1995) at 97.

[74] NADRAC (1997) at 20-24.

[75] NADRAC (1997) at 21.

[76] NADRAC (1997) at 21.

[77] NADRAC (1997) at 21.

[78] NADRAC (1997) at 21.

[79] Otto (1995) at 91-92.

[80] Baines (1996) at 45 quoting Jenny Bargen, then Senior Lecturer, Faculty of Law, University of New South Wales

[81] Baines (1996) at 45 quoting Jenny Bargen. See also J Stubbs (1997) “Shame, Defiance, and Violence Against Women: A Critical Analysis of ‘Communitarian’ Conferencing” in S Cook and J Bessant (eds) Women’s Encounters With Violence: Australian Experiences, Sage Publications Inc: California 109 at 115.

[82] Stubbs (1997) at 115.

[83] Baines (1996) at 46 quoting Julie Stubbs, then Senior Lecturer, Institute of Criminology University of Sydney.

[84] Baines (1996) at 46 quoting Julie Stubbs.

[85] Baines (1996) at 45 quoting Danny Sandor, Former Chair, Youth Affairs Council of Victoria. Jenny Bargen also questions the focus on shaming in conference processes involving young women in Baines (1996) at 45.

[86] Baines (1996) at 45 quoting Danny Sandor.

[87] Baines (1996) at 45 quoting Danny Sandor. See also Alder (2000) at 109-110.

[88] Note Mack’s comment that “The risks which face women in dispute resolution processes are direct reflections of the factors by which women’s subordination is maintained in society generally.”: K Mack (1995) “Alternative Dispute Resolution and Access to Justice for Women” [1995] AdelLawRw 10; 17 Adelaide Law Review 123 at 146.

[89] Feminists have acknowledged the many process and outcome dangers for victims of violence in family mediation. See for example, T Grillo (1991) “The Mediation Alternative: Process Dangers for Women” 100 Yale Law Journal 1545; B Hart (1990) “Gentle Jeopardy: The Further Endangerment of Battered Women and Children in Custody Mediation” 7 Mediation Quarterly 317; R Field (1996) “Mediation and the Art of Power (Im)balancing” [1996] QUTLawJl 18; 12 QUT Law Journal 264; R Field (1998) “Family Law Mediation: Process Imbalances Women Should be Aware of Before They Take Part” [1998] QUTLawJl 3; 14 QUT Law Journal 23; R Field (2001) “Convincing the Policy Makers that Mediation is Often an Inappropriate Dispute Resolution Process for Women: A Case of Being Seen But Not Heard” National Law Review (January) http://www.lexisnexis.com.au/nlr/ LG Lerman (1984) “Mediation of Wife Abuse Cases: The Adverse Impact of Informal Dispute Resolution on Women” 7 Harvard Women’s Law Journal 57.

[90] J Braithwaite and K Daly (1994) “Masculinities, violence and communitarian control” in T Newburn and E Stanko (eds) Just boys doing business? Men, masculinities and crime, Routledge: London, 189.

[91] White comments that: “The model is essentially a state-run, top-down model, one which is constructed to involve members of the community, but not in a manner which actually places real decision-making in to the hands of that community. It represents an extension of state power into civil society, without the guarantees and protections of formal accountability and democratic participation at the local level.” White (1994) at 188.

[92] White (1994) at 188.

[93] Baines (1996) at 43 quoting J Kitcher.

[94] However, most agreed that the power within the conference shifted depending on who was given the opportunity to speak.: Baines (1996) at 43 quoting J Kitcher.

[95] D Greatbatch and R Dingwall (1989) “Selective Facilitation: Some Preliminary Observations on a Strategy Used by Divorce Mediators” 23(4) Law and Society Review 613; R Dingwall (1988) “Empowerment or Enforcement? Some Questions About Power and Control in Divorce Mediation” in R Dingwall and J Eekelaar (eds) Divorce Mediation and the Legal Process, Oxford University Press: Oxford at 150.

[96] Baines (1996) at 44 quoting Danny Sandor.

[97] The Australian Law Reform Commission Reports on Equality Before the Law also discussed the pervasive nature of violence against women and acknowledged that a history of violence makes participation for women in alternative dispute resolution processes, such as mediation, inappropriate: See Australian Law Reform Commission Equality Before the Law: Women’s Access to the Legal System (1994) Report (No 67), AGPS: Canberra. See also Mack (1995) at 125.

[98] White has noted the problematic nature of power in the shame and reintegration model particularly in the context of the process’ claims to empower its participants: White (1994) at 183.

[99] M Lichtenstein (2000) “Mediation and Feminism: Common Values and Challenges” 18(1) Mediation Quarterly 19 at 20 referring to M Fineman (1990) “Dominant Discourse, Professional Language and Legal Change in Child Custody Decision Making” 101(4) Harvard Law Review 727. See also C Gilligan (1977) “In a Different Voice: Women’s Conceptions of Self and Morality” 47 Harvard Educational Review 481; C Gilligan (1982) In a Different Voice: Psychological Theory and Women's Development, Harvard University Press: Cambridge, Mass; N Noddings (1984) Caring: A Feminine Approach to Ethics and Moral Education, University of California Press: Berkeley, LA; J Nedelsky (1989) “Reconceiving Autonomy: Sources, Thoughts and Possibilities” 1 Yale Journal of Law and Feminism 7; SM Okin (1987) “Justice and Gender” 16 Philosophy and Public Affairs 42; SM Okin (1989) “Reason and Feeling in Thinking About Justice” 99 Ethics 229.

[100] JB Kelly (1995) “Power Imbalances in Divorce and Interpersonal Mediation: Assessment and Intervention” 13(2) Mediation Quarterly 85 at 91 referring to B Hart (1990) “Gentle Jeopardy: The Further Endangerment of Battered Women and Children in Custody Mediation” 7 Mediation Quarterly 317.

[101] Stubbs (1997) at 115.

[102] Neutrality is generally acknowledged as a central concept in mediation and mediation-like processes. For example, H Astor (2000) “Rethinking Neutrality: A Theory to Inform Practice – Part I”, 11 Australian Dispute Resolution Journal 73 refers to neutrality as “a significant concept in mediation.” And Cohen et al say that “The concept of mediator neutrality is central to our understanding of the role as that of a third-party intervenor: O Cohen, N Dattner, and A Luxenburg (1999) “The Limits of the Mediator’s Neutrality” 16(4) Mediation Quarterly 341 at 341. Mediator neutrality has always been of the highest value and concern.” For example, Boulle acknowledges that “definitions of mediation frequently assert that the mediator is a neutral intervener in the parties’ dispute”: L Boulle (1996) Mediation: Principles, Process, Practice, Butterworths: Australia at 18. Further, one of the most commonly accepted and often cited definitions provided by Folberg and Taylor refers to mediation as a process involving "the assistance of a neutral person or persons": J Folberg and A Taylor (1984) Mediation: A Comprehensive Guide to Resolving Conflict Without Litigation, Jossey-Bass: San Francisco at 7-8.

[103] See for example, R Field (1996) “Mediation and the Art of Power (Im)balancing” [1996] QUTLawJl 18; 12 QUT Law Journal 264. As Professor Boulle acknowledges, “some writers refer to neutrality as the most pervasive and misleading myth about mediation, arguing that it is neither a possible attainment nor a desirable one.”: Boulle (1996) at 18. See also G Tillet (1991) Resolving Conflict – A Practical Approach, Sydney University Press: Sydney and G Kurien (1995) “Critique of Myths of Mediation” 6 Australian Dispute Resolution Journal 43. The myth persists partly because the promise of neutrality in the third-party facilitator is a key legitimising factor for mediation: Boulle (1996) at 18 – 19. For example, the concept of neutrality in mediation can be seen as counterbalancing the ideology of judicial neutrality: Boulle (1996) at 18-19.

[104] R Dingwall (1988) “Empowerment or Enforcement? Some Questions About Power and Control in Divorce Mediation” in R Dingwall and J Eekelaar (eds) Divorce Mediation and the Legal Process, Oxford: Oxford University Press, at 150; D Greatbatch and R Dingwall (1989) “Selective Facilitation: Some Preliminary Observations on a Strategy Used by Divorce Mediators” 23(4) Law and Society Review 613; B Mayer (1987) “The Dynamics of Power in Mediation and Negotiation” 16 Mediation Quarterly 75. Se also, M Roberts (1992) “Who is in Charge? Reflections on Recent Research on the Role of the Mediator” Journal of Social Welfare and Family Law 372. Some writers clearly acknowledge that the idea of neutrality and its application in the context of mediation practice is difficult: “Definitions of mediation and codes of conduct for mediators often overlook the multiple dimensions of neutrality in their characterisation of mediators as neutral facilitators.” Boulle (1996) at 19. Astor and Chinkin warn that “it is not sufficient simply to claim mediator neutrality (as) mediators have considerable power in mediation and there is evidence that they do not always exercise it in a way which is entirely neutral as to content and outcome.”: H Astor and C Chinkin, Dispute Resolution in Australia, Sydney: Butterworths, (1992) at 102. Professor Wade has said that “virtually every step taken by a mediator involves the exercise of power.”: J Wade, “Forms of Power in Family Mediation and Negotiation” (1994) 6 Australian Journal of Family Law 40 at 54.

[105] See R Field (2000) “Neutrality and Power: Myths and Reality” 3(1) The ADR Bulletin 16.

[106] Lerman (1984) at 71.

[107] Polk (1994) at 138.

[108] Lerman has made a similar comment in relation to the use of mediation in contexts where there is a history of violence: Lerman (1984) at 61.