Restorative Mediation and Practices in Personal Injury and Other Civil Matters
Restorative justice grew from the criminal law system and most of the restorative justice programs focus on criminal cases. It is important to realize though that the division between criminal and civil court is largely a fiction created by a system that pigeonholes types of cases. Injuries, harms, happen to real people who don't much care which court handles it. Restorative practices can be used in civil matters in much the same way as they are used in criminal matters.
An injury or wrong can be a civil tort without any laws having been broken. Often an insurance company and their lawyers step between the person being accused of causing the harm and the person harmed.
Restorative practices offer a way of thinking and responding to personal injury claims and of making things as right as possible. This restorative mediation approach recognizes that response to personal injury claims is important and responds in ways that build healthy communities in a cost effective manner.
Restorative mediation holds negligent parties and their insurance companies accountable to recognize and repair the harms.
Restorative Justice Principles Applied to Personal Injury Claims
1. Restorative justice is a way of thinking and responding to personal injury claims. Restorative justice is a process of making things as right as possible for all people.
2. Restorative justice recognizes that response to personal injury claims is important. Restorative justice responds in ways that build healthy communities in a cost-effective manner.
3. Restorative justice deals cooperatively and constructively with personal injury, preferably at the earliest possible time.
4. Restorative justice addresses the harms and needs created by, and related to, personal injury claims.
5. Restorative justice holds negligent parties and their insurance companies accountable to recognize and repair the harm as much as possible.
6. Restorative justice empowers negligent parties, injured claimants, and their communities to assume central roles in recognizing and repairing the harm and creating a healthy community.
7. Restorative justice seeks to repair the harm and reintegrate the negligent parties, injured claimants, and their communities as much as possible.
8. Restorative justice prefers maximum use of voluntary and cooperative response options.
The U.S. tort system cost $246 billion in 2003. $82 billion is spent annually on litigation costs (attorney fees for plaintiffs and defendants' legal defense costs) [Tillinghast-Towers Perrin, U.S. Tort Costs: 2004 Update]
Research shows that involvement in on- going litigation affects one’s experience of and recovery from a painful or chronic injury or disorder.
A study done in 2002 by researchers from Hope College and Virginia Commonwealth University showed that heart rate, blood pressure, sweat levels, and facial tension decreased in victims of wrongs when they imagined receiving an apology.
With a policy of apology: University of Michigan Health System reduced malpractice claims by 50% and reduced average time to process a claim from about 20 months to about 8 months and the cost per claim by 50%
Our page sponsors are leaders in bringing this restorative practices focus to personal injury but it seems to be gaining some ground. See also this Harvard Law Review article by Jim Golden of Chattanooga, Tennessee, that came to my attention about the same time as meeting Ken Jaray. While the article was meant to focus on the negotiation counsel role, the negotiation counsel certainly uses restorative practices in this case.
Doug Noll wrote about Restorative Mediation in this 2002 Mediate.com article: http://www.mediate.com/articles/noll6.cfm
There is also some overlap with the civil collaborative law movement and the settlement counsel approach to resolution. Interested readers may want to explore both.