A few years ago, Judge Deb Martin settled a controversial case in a way that acknowledged humanity over hurt and anger. It moved the courtroom to tears and opened the door to the use of restorative justice techniques in civil litigation.
Today, Martin, a Court of Claims judge, considers this approach in every case that comes before her court. She sees great promise in the practice, which relies on willing cooperation of all stakeholders and a focus on repairing harm.
“It gives people the closure that they need because people who are involved in litigation, even though they initially might start out being happy with the process, they very quickly become unhappy with it because it takes a long time,” says Martin, who is also an acting Supreme Court justice and the districtwide coordinating judge for alternative dispute resolution programs in the Seventh Judicial District. “A typical lawsuit is probably five years from beginning to end, and that is five years of ruminating over the issue and escalating your emotions over it.”
Martin is among a small but growing number of judges and attorneys who would like restorative justice practices to be used on a regular basis in civil cases. Courts most likely would see cases move faster, Martin says, and those involved in these disputes would be happier with the outcome. However, it would require more acceptance from attorneys and judges for the practice to become commonplace. Education and training opportunities are needed, but it will also take a willingness to do things differently.
“We’re changing a practice that is literally centuries old,” says State Supreme Court Justice Craig Doran. “We’re injecting a new concept into a well-established practice that is deep rooted not just in the legal community but the community generally, whatever sector you’re involved in. The concept of litigation is almost always inextricably linked to a monetary component. So, to change that, there needs to be familiarity, education, leadership, and brave people willing to take the leap.”
The roots of change
The lawsuit that started it all was a civil case related to a fight between two University of Rochester students that left one dead. Neither man—Jeffrey Bordeaux Jr., who succumbed to knife injuries, and Daren Venable—came from backgrounds of violence. Venable wanted to be a cop and Bordeaux was preparing for a semester abroad in China. In 2011, a judge found Venable not guilty of second-degree murder.
“The mother was distraught over the death of her child, and she sued everyone. She sued the university, the fraternity, and the young man who did the stabbing,” Martin recalls.
Civil litigation limped along for seven years, until Martin, who tried to settle the case, decided to use a different approach: restorative justice. But it did not work. The parties involved were not open to the idea. After letting UR and the fraternity out of the case—Martin didn’t see sufficient basis for the claims against them—the remaining parties were Venable and Bordeaux’s mother, Delores Forest.
“No one wanted to try this case because no one wanted to hold Daren responsible, but everyone felt very sorry for Mrs. Forest,” Martin says.
As the case was set to go to a jury, Forest’s attorney asked for a last attempt at settlement. A statement was drafted; it did not contain apologies but a recognition of Bordeaux’s humanity and an acknowledgement of Venable’s life ahead. Both parties agreed to sign it and an attorney read it to the jury. After the courtroom’s doors were closed, Bordeaux’s father, who had been vocal in demanding justice, called Venable his son.
“It was unbelievable. The mothers were hugging. It was as if the weight was lifted off of everyone shoulders,” Martin says. “And they could finally accept humanity. After that was over, everyone in the courtroom—the deputies, certainly all the court staff members—just felt like we’d been through something special.”
Doran was struck by the result. Upon learning of Martin’s work in the civil suit that focused on repairing harm and resolving conflict, he suggested a new initiative in civil litigation. Martin agreed to head the effort. She searched for models elsewhere with the hope of applying them here.
“Restorative justice is pretty well known in domestic violence cases and in the city school district and all that, but those are all quasi-criminal environments,” Martin says. “These are purely civil cases, people suing each other or suing a company for money.”
Developing a program
Martin worked with Kit Miller, director emeritus of the M.K. Gandhi Institute for Nonviolence, who put her in touch with local, national and international experts. However, Martin couldn’t find a model that was appropriate for civil litigation. So, she created a committee of attorneys from various areas, including trust and estates, family and corporate law, who were interested in the concept. Miller, who advocates for and uses these techniques, was part of the group as well. As was Kristin Doughty, associate professor of anthropology at UR, who researched the reconciliation conferences after the 1994 Rwandan genocide.
“I thought, if genocide can be reconciled, certainly a car accident can be reconciled,” Martin says.
The group worked on ideas for roughly a year. In 2019, they were ready to train attorneys to be mediators using restorative justice techniques. Fortuitously, at the same time the court system statewide decided to push alternative dispute resolution for civil cases. As part of the Chief Judge’s Excellence Initiative, Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence Marks announced a systemwide initiative in which, aside from appropriate exceptions, parties in civil cases would be referred to mediation or some other form of ADR as the first step in the case proceeding in court. At the onset of a case, whether a personal injury, matrimonial, estate or a commercial dispute, it would be directed to ADR. The goal: to consider options other than conventional litigation to resolve a dispute.
“That was perfect because here I am with this new project and Craig Doran agreed to let me sell it to people as an alternative,” Martin says.
In June 2019, the Monroe County Bar Association hosted a program that discussed the use of restorative justice in civil litigation.
“If we can help folks resolve their disputes in a way that makes them feel more whole, that’s a good thing. That’s what really drew me to it,” says MCBA president Bradley Kammholz, who has been trained in these techniques.
The training drew on common sense, he notes, allowing people to express themselves rather than a focus on litigation.
“You know, when we stop and when we get to know folks,” says Kammholz, a partner with Kammholz Rossi PLLC, “that’s really what you’re doing is you’re just listening to what’s important to them.”
Ed Hourihan, managing member of Bond, Schoeneck & King’s Rochester office, is another proponent. He is attracted to restorative justice principles because the judicial system doesn’t offer all the remedies that people want.
Restorative justice explained
At its core, restorative justice draws on ancient and Indigenous practices used by cultures across the world. It aims to repair harm by engaging in a collective process. A case in the 1970s in Kitchener, Ont., planted the seed for restorative justice’s use in its current form. Following an act of vandalism, a probation officer, Mark Yantzi, arranged for two teenagers to meet directly with their victims and agree to a restitution plan. Early practices were variants of what Yantzi did, using victim-offender mediation and family group conferencing in juvenile justice and child welfare. It was the work of criminologist Howard Zehr in the 1990s that positioned restorative justice with a legal view.
“In general, in most spaces in the court, people’s sharing tends to be moderated through their attorneys, and very much oriented towards making sure that they don’t say anything that could damage their (case),” Miller says. “They basically share the strengths of their case in this space with their perspective. The difference, I think, is that there’s a specific space created in this process for people to say, ‘Well, you know, here are the downsides to this way of doing things or there was a part that I feel less clear about.’ It’s just more sharing, not like making your argument, but sharing your thoughts.”
In a restorative justice conference, a trained facilitator briefly meets with each party to determine if the sought outcome is possible. If so, parties enter a confidential agreement to ensure freedom of expression. The conference, held at a neutral location with a facilitator, then discusses the resolution of the case. Understanding thoughts, feelings and needs is the main goal of such a meeting, even if parties disagree with the other’s position.
In many states, restorative justice has become a standard practice to decrease the harm caused by crimes while considering the needs of all those involved—victims, offenders and communities. An analysis published in the Utah Law Review two years ago that drew on data from 50 states found that 45 states have codified restorative justice into statutory law or regulatory law. Between January and May 2019, 18 restorative justice bills were proposed in 11 states. New York is among the states contributing to the rise in these laws.
Also in 2019, the Justice Department’s Office of Justice Programs and National Institute of Justice sought applications for funding a National Center on Restorative Justice. The center, launched that year, is charged with educating and training the next generation of juvenile and criminal justice leaders. It also supports scientific research on the efficacy and effectiveness of restorative justice approaches. The Bureau of Justice Assistance chose the Vermont Law School as a partner on the program.
Research on the effectiveness of restorative justice practices for criminal offenses typically has focused on recidivism and outcomes such as satisfaction and restoration, according to a Justice Research and Statistics Association report. Restorative justice programs for juveniles were acknowledged to have a positive impact on crime and delinquency, compliance with restitution and fine payments, offender reparations for the harm caused by the offense, and victims’ perception of fairness of the justice system.
Research on restorative justice in the civil realm is not easy to find, however. Such literature is critical in persuading those involved in civil cases to consider the technique, Doran believes.
“Whenever there’s research done by the academic world, by the scholarly researchers that have focused in this area, and there are many in our community, that adds legitimacy to it, certainly adds experience to it,” he says. “It’s a resource that those of us that are proponents can turn to, to demonstrate to parties that are new to this that there is an established foundation for it. There is experience, there is research that demonstrates that this can, in many instances, more so than the exchange of money, can bring satisfaction to parties in a legal setting.”
Acceptance in civil litigation
Martin has presided over two cases where restorative justice played a big role, including a virtual one, since the Venable lawsuit. One involved a suicidal young man who was discharged from an Albany hospital. Health care providers determined that he was depressed, but not suicidal. Within 48 hours, the young man hung himself. His ex-wife, who was still close to her former husband and co-parented their two children, sued the hospital.
“(Restorative justice) is meant for cases that have an emotional overlay that has to be overcome before you can talk about money,” Martin says. “In cases where you’re suing for money, there usually is going to be this pot of gold at the end, but the injured person can’t take it and the defendant can’t offer it because of this emotional stumbling block. In this case, it was the wife (who) could not get over the idea that, ‘You had my husband, and you should have known he was sick, and you let him go. Why did you do that?’”
Martin was able to encourage the plaintiff to talk about her needs before discussing monetary damages.
“That had an effect of kind of breaking down her preconceived ideas about ‘nobody cares about my dead husband,’” Martin says. “And after we talked through all of these issues—and again, there’s tears and a reconciliation that you don’t typically see—we finally were able to talk about money. … We ultimately resolved the case in about a half an hour after we started talking about dollars.”
She adds: “The parties had never gone through anything like this. They were saying, this really worked. The attorneys were effusive about it because they of course had been through many mediations. And they just felt that this worked. They felt that there was closure that you don’t get the typical settlement of a case.”
Using restorative justice in civil cases requires a willingness to think differently. Will plaintiffs who file suit driven by the hope of financial compensation for harm or injury be open to such a concept?
“That’s the whole question. That’s the question. How interested will clients be in it? Because our system has been set up for so long (and) really there hasn’t been any restorative justice. It’s been all about civil litigation and people expressing their frustration or their anger,” Kammholz says. “So, this is new to everyone, lawyers and clients alike.”
Though Kammholz hasn’t had a chance to use the technique yet, it hasn’t dampened his enthusiasm for the concept. Hourihan shares the sentiment.
“I’m not in a position to recommend restorative justice very often,” Hourihan says. “It’s really in fairly rare circumstances in my practice, which is commercial litigation.”
Still, he suggests the approach when he can, and Hourihan has had a few instances where he has resolved issues within a case by using principles of restorative justice.
Doran says there are plenty of case types where the harm caused to a party extends beyond the harm that can be remedied with an exchange of money.
“It might be emotional harm, it might be a deep-seated need to have closure, a need to confront the person who’s caused the harm or the entity that caused the harm, and also the need for the community to have some restoration—whether it’s a school or a parish—and restorative justice offers a much broader possibility for closure,” he says.
Will it take root?
Not everyone is on board with the approach. Some question the distinction between mediation and restorative justice. Mediation typically involves getting parties to value an injury or damage and agree to an amount without taking the case to court. In most mediation cases, parties do not speak directly to each other; instead, they use their attorneys to advocate their points of view. In restorative justice conferences, attorneys are present but as observers, not spokespersons. This allows the participants to talk without worrying about the rules of procedure, and the confidentiality agreement all participants sign gives them protection that what is said cannot be used against them later, Martin says.
“For the most part, people often leave (courtrooms) with only part of their needs met,” Miller says. “One of the reasons why this project was started in the first place was because it was a recognition among local judges and attorneys that there are some cases that walk in the door and you know from the start that the existing system is not going to be sufficient because the strategy that’s used to achieve justice in civil cases tends to primarily be a financial one, and there are some cases where there’s not enough money in the world.”
Anger and the notion of being wronged often runs deep with plaintiffs. The justice system is adversarial, Miller says, with winners and losers. Getting people out of that mindset is no easy feat.
“It’s not as if it’s taught in law schools,” Hourihan says. “It’s certainly nothing that was brought (up) when I was a young associate at Harris Beach. I was not mentored in that way in that area of my litigation practice.”
For restorative justice to become common practice will take more continuing legal education that increases attorneys’ familiarity with the concept, he says. Litigators at Hourihan’s firm are open to the idea. Judges also will need to recognize cases that could benefit from the technique.
“It’s going to take all of us recognizing the value of restorative justice for it to really make a takeoff and that’s going to take a little while,” Kammholz says.
The COVID-19 pandemic has impacted the momentum and interest gained in 2019. But Martin and others are intent on moving forward.
“There’s a lack of communication that drives people into litigation,” Martin says. “This is a facilitated conversation, which if we started it sooner, may keep cases out of litigation because litigation is not for conversation. Litigation is aimed at getting into a courtroom, which has a lot of rules, things you can’t say, ways you cannot communicate. It’s quite rigid. And this is a way to put flexibility in the litigation process.”
Smriti Jacob is Rochester Beacon managing editor.