Jane Morley – The Justice Hack – Voices of Justice Magazine 2021

Are there any particular B.C. initiatives you’re
excited about that were created as a result of
Access to Justice BC’s work or involvement?
There are a lot of good things happening in B.C.
and it’s really quite impressive. What is interesting
is the response to COVID-19, which really has
forced experiment where there were assumptions
that things couldn’t be done. And they got done.
There was a lot of experimentation going on just
out of necessity. What I am encouraged by is that
there’s a lot more talk about looking at it from the
user perspective. I think that people are persuaded
that that’s an important thing to do.
What is a restorative approach to justice and
how does it work?
It’s something that was developed out of influence
from my work with First Nations and Indigenous
peoples, and that perspective – which is a
more holistic perspective. The idea is to treat conflict
not necessarily as a bad thing, but as something
that needs to be managed. It’s really about
managing it as a whole, as opposed to thinking of
it as disputes between two people that need to be
decided upon. We’re all individuals, we all think
differently. We have different cultures, we have
different values. So there’s going to be conflict.
But the real question is, how does one deal with
that conflict in a healthy way for the whole, the
good of the whole? And I think that that’s a systemic
kind of approach, which I’ve certainly taken
over into my thinking about access to justice and
how we should approach it.
What are some examples of how a restorative
approach might work differently than a more
private model of dispute resolution?
I’ve done a fair bit of work in workplace
disputes, where there may be a complaint about
harassment, for example. Going in and doing an
investigation about facts and deciding whether
there’s been harassment, and then recommending
a penalty – that hasn’t worked with organizations.
It usually leaves everybody unhappy. It interferes
with the manager’s ability to manage. Even if
someone is found not guilty, they’ve been hurt
by having the allegation. For the people who are
making the allegation, often it won’t be held up,
and then they feel that they’ve been negated.
Instead, you go into the workplace, and you say,
“This dispute is the tip of the iceberg. We have to
look underneath the surface for a lot of different
causes in order to figure out how to move forward
in a healthy way.” And usually, the answers are
not just about resolving a dispute between two
people. It may involve that, but it’s often the
group dynamics. There may be a need to change
some of the conditions of employment. There’s a
lot of different ways that one can approach it. And
if you take that more holistic approach that looks
at the health of the organization, then you’re more
likely to move forward in a positive way.
The other approach is one of capacity building.
Instead of going in as the expert that’s going to
find out what the problem is, diagnose it and
come up with the recommendation, you go in
and say, “How can we increase the capacity of
the organization to manage this conflict?” It
raises different questions. You do a lot of work
with leaders about how they will manage it, as
opposed to going in and managing it.
In terms of the individual people who feel
they’ve been wronged, what is their outcome
in a process like that?
I think it does get you asking questions about
what justice is. Lawyers tend to define it in terms
of disputes, and fair resolution of disputes. I think
that’s only an aspect of justice. When you ask
regular folk about what a just life is, it’s a good
life, it’s a good life where they can do what they
want to do. They can look after their children,
they can manage without conflict that gets in the
way and prevents them from fulfilling themselves.
I think it does lead to a different notion of what
justice is.
Can you tell us about your experience as a
commissioner on the Truth and Reconciliation
Commission, and how that might have shaped