The legal profession, often seen as a stronghold of justice and equality, has struggled to create an inclusive environment for all members. For equity-seeking lawyers, the experience of discrimination and exclusion can have a devastating impact on wellbeing. Restorative justice offers a promising approach to address these harms and foster a diverse and inclusive legal community.
Narratives on the personal toll of feeling like an outsider to the profession are readily available. For example, documentaries, But I Was Wearing a Suit and But I Look Like a Lawyer highlight systemic racism and discrimination faced by Indigenous and Asian Canadian lawyers and argue for the need for systemic changes within the legal profession.
The original Touchstone report, published in 1993, highlighted the challenges faced by women in the legal profession. Subsequent Touchstone reports and other studies have shown that while progress has been made, there is still work to be done to create a more equitable and inclusive environment for all lawyers.
The National Study on the Health and Wellness Determinants of Legal Professionals in Canada included recommendations to reduce the stigma experienced by several groups, including legal professionals who are women, early career, LGBTQ2S+, Indigenous, ethnicized or live with a disability.
The challenge is how to bring about cultural change to a profession with entrenched beliefs, values and behaviours that have been passed down for generations. Restorative justice processes and practices provide a vital framework for the profession in shaping its path forward.
In The Little Book of Restorative Justice, Howard Zehr outlined key principles. When harm happens, the adversarial justice system focuses on what laws have been broken, who did it, and what they deserve. Conversely, “restorative justice is an approach to achieving justice that involves, to the extent possible, those who have a stake in a specific harm to collectively identify and address harms, needs and obligations in order to heal and put things as right as possible.”
Addressing discrimination and exclusion means exploring sensitive topics that are difficult to talk about without defensiveness and reactivity. Resistance to the Law Society of Ontario’s mandated declaration affirming a lawyer’s commitment to upholding the principles of human rights and equality exemplified the capacity for polarization over equity, diversity and inclusion initiatives in the legal profession. Different approaches are necessary for different results.
Yet a restorative justice approach requires something more than simply mediation of parties’ positions. It entails asking a set of guiding questions when a wrong has occurred and designing a process around answers to these questions:
- Who has been harmed?
- What are their needs?
- Whose obligations are these?
- Who has a stake in this situation?
- What are the causes?
- What is the appropriate process to involve stakeholders in an effort to put things right and address underlying causes?
Rooted in ancient Indigenous cultures around the world, modern restorative practices have emerged for various contexts. Beyond the criminal justice realm, restorative justice programs effectively and equitably address bullying, violence and vandalism in schools and communities. Restorative practices are an emerging topic among human resources professionals in an effort to restore workplace teams after harms have occurred and workplace investigations are conducted. Peacemaking circles provide opportunities for community members with divergent perspectives to come together to speak candidly about conflict, pain and anger. Circles can be designed for various functions, such as talking, understanding, healing, community-building and conflict.
By shifting the focus of EDI discourse from adversarialism to accountability and healing, restorative justice can help the legal profession to address the underlying causes of the inequities that exist within it and build a more supportive and inclusive culture.