CJCCJ/Volume 65.2 (2023)
Negotiation and Conflict in Criminal Justice – A Handbook
By Rebecca Jaremko Bromwich & Thomas Harrison
Toronto (ON): Canadian Scholars Press. 2019. 200 p.
This book is divided into three parts: 1) conflict resolution and negotiation in traditional criminal law processes, 2) alternative approaches in Canadian criminal law, and 3) conflict resolution and career development. A brief introduction provides a context for the handbook. As practicing criminal lawyers, the authors experience became increasingly working traditional law outside of the courtroom using alternative humanistic skills such as negotiation, conflict resolution, alternative dispute resolution, and restorative justice. The motivation for the book was to fulfill the gap that the authors perceived between academia and the expanding criminal law practice of conflict resolution skills. Of note is the authors comment that the book is premised on the understanding of emphasizing the ‘interest-based’ negotiations model as effective practice to address criminal law matters. The introduction provides a general overview of each of the six chapters.
Each chapter maintains a structure throughout the book with specific learning objectives, a general overview, content, case study/scenarios, specific applied skills, a chapter summary, and a number of suggested readings for further exploration. This provides the reader with consistency as the content, theory, or guidelines precedes the practical skills required within a legal framework.
PART 1: Conflict Resolution and Negotiation in Traditional Criminal Law Processes
Chapter 1: Negotiation: Principles, Theory, and Approach
The authors argue that negotiation has become an essential part of the criminal justice system and thus, criminal lawyers need to be purposeful and mindful in the use of negotiation practices, strategies and techniques. Although the authors indicate the focus of negotiation in the chapter is ‘plea bargain’, this narrow emphasis does not fully outline the greater use for lawyers and other criminal justice practitioners. An important observation highlighted is that plea bargains can occur in both formal and informal settings, but as it occurs throughout the criminal justice system, it means that the majority will be considered informally.
Later in the chapter the topic provides constructive information about ‘principled’ negotiations as they describe in detail the seven elements: interests, options, legitimacy, alternatives to agreement, communication, relationship, and commitment. In each of the seven elements information is elaborated with specific skills that would be well suited for a criminal lawyer or a criminal justice practitioner. A key section near the end of the chapter discusses the limitations of principled bargaining. One element that may have been considered are approaches related to the bargaining style of the other lawyer as this impacts the environment.
Chapter 2: Conflict Resolution: Theory and Practice, Competence, Ethics, Strategies, and Tactics in Criminal Law Negotiations
This chapter begins with a clear proposition that conflict is unavoidable and that it becomes a common experience in criminal law and other criminal justice environments. In addition to this, the authors argue an emphasize an integrative bargaining approach that focuses on the behavioral aspects of conflict resolution. Although this is their line of argument, they minimally discuss psychosocial approaches or other factors directly related to managing, addressing, and resolving conflicts. Further information in this area would provide an important wider context to understand conflict resolution in theory and in practice.
An important section in this chapter indicate that all legal service providers need to have negotiation knowledge and skill to affectively represent and advocate on behalf of their clients. The authors highlight six core competencies for effective negotiators. Further information on negotiation process, which includes how to manage interactions, would be useful information for the reader. There is a section that describes civility in Canadian law that supports the premise outlined at the beginning of the chapter of the emphasis of an integrative bargaining approach. The latter part of the chapter provides practical scales for conflict resolution followed by commentary that elaborates the concept with examples. One element that may have been considered are some of the difference ethical guidelines that would provide a wider context to understanding negotiation and conflict resolution in theory and practice.
Chapter 3: Negotiating Across Differences, Roles, Social Context, Culture, and Process
This chapter examines the in negotiating within a context of various settings as well as individual differences. The authors argue correctly that based on the individual, situational, and procedural setting establishes a different perspective for lawyers. The first part of the chapter is based on the adversarial roles between the defense and Crown council. One concluding element in this section is their belief that resolution discussions and negotiations has an important role to make the criminal courts more effective. The middle section of this chapter looks at the social and cultural contexts. A critical and correct statement is that the Canadian criminal justice system is experienced very unevenly by different gender, culture, ethnicity, and other groups.
In understanding professional competence and practice there needs to be a respect for diversity and worldviews. The section continues with highlighting the skills and characteristics of cultural competence. An important discussion with related examples is the term implicit bias, which would provide readers with an understanding that bias may not only be intentional but also oblique. Information that highlights various strategies and techniques to potentially avoid implicit bias was discussed affectively. Following this there was a brief section to provide a framework in preparing for intercultural negotiation. This is where the Handbook lacks a critical opportunity to provide a section on working within an Indigenous worldview as the authors accurately highlighted earlier in the chapter that Indigenous peoples in Canada are far more frequently charged, tried, convicted, incarcerated, and less likely to be released on probation/parole. An interesting section discuss is online negotiation that is much more relevant due to the COVID-19 pandemic. The latter part of this chapter describes the importance of building report in a professional relationship such as effective communication. Once again there are strategies to consider to be effective across settings such as active listening, being curious, preparing in advance, using silences, and being concise. One element that may have been considered is the expansion of culturally competence to the terms of cultural safety and humility.
PART 2: Alternative Approaches in Canadian Criminal Law
Chapter 4: Alternative Dispute Resolution (ADR) and Diversion in Criminal Law
This chapter begins with a proposition that alternative dispute resolution (ADR) encompasses a variety of procedures traditionally in the formal criminal and civil courts. The authors also expand ADR in the criminal context of restorative justice practices as well as community-engaged justice. There is a brief section related to ethics with the understanding that attorneys need to understand and demonstrate ADR competencies and skill-sets. This is supported by examples before lawyers in general and then focused on defense and Crown attorneys. They highlight aspects of the youth Criminal Justice Act, The Criminal Code, and some Ontario Crown policy guidelines.
As discussed later in the chapter titled victim-offender mediation, the authors tended to focus more on youth offenders diversionary mechanisms rather than on the adult system. They do include a brief commentary regarding victim-offender reconciliation, however, they fail to clearly articulate the difference between mediation and reconciliation in terms of diversion from the formal court process and after the offender has been found guilty. The latter part of this chapter discuss is ADR within family law violence. although this is an informative and authentic discussion, it is somewhat Inconsistent as this focuses on family law and child protection and not the threaded theme of criminal law. One element that may have been considered is putting the context of victim-offender reconciliation as a foundational worldview of Indigenous peoples.
Chapter 5: Restorative Justice: Theory, Practice, Standards, and Guidance.
This chapter develops and expands on the previous chapter of alternative dispute resolution process is in the criminal justice system. In particular, the chapter begins by expanding the victim- offender mediation discussion with a conceptual framework with various restorative approaches. The authors provide many details enabling the reader to have a very good grounding of the factors related to restorative justice. There is a brief history as well as contemporary practices. For example, there is elaborated commentary of indigenous justice such as specialized courts, programs, and approaches.
The next section of this chapter outlines restorative frameworks and the classification of two general categories; one related to the traditional criminal justice system and the second are practices and programs in the community. They argue correctly that the different approaches outlined are appropriate and relevant for implementation within the Canadian criminal justice system. Some of the examples include family group conferencing (restorative conferencing), healing and sentencing circles, and community restorative boards. However, the concept of family group conferencing should be a tentative term as this commonly relates to matters of child protection to support the best interest of the child. A large commentary describes restorative justice both in the criminal and youth justice systems in an effective manner. It highlights various reports, conferences, and research on the topic of victim inclusion across the criminal justice system. This is argued by the authors as they conclude the chapter indicating a critical comment on restorative justice. One element that may have been considered is describing the positive outcomes for victims who participate in a victim-offender mediation and victim-offender reconciliation.
PART 3: Conflict Resolution and Career Development
Chapter 6: Surviving and Thriving: Well-being, Competence, Difficult People, and Discrimination
First and foremost, the title for Part 3 is generally misleading to the actual focus of the only chapter, which is related to compassion satisfaction and compassion fatigue (two elements – burnout and vicarious trauma). That said, this topic is very important to raise for attorneys and other practitioners working within the criminal justice system. The authors highlight some of the concerns in the legal culture to the point of describing it as a mental health crisis due to the pervasiveness of the negative impact on overall health and well-being. They provide specific examples, guidelines, and programs to recognize and address these issues. A statement in the next part of the chapter is that “regulated legal professionals have a duty to be competent”, which sets the context from an ethical perspective. They provide a list of possible considerations when they look at a physical and mental interconnexion. Unfortunately, the authors also need to look at self-care from two other dimensions – psychological and spiritual.
The latter part of the chapter discussed is related to the personal characteristics of the lawyer or criminal justice practitioner, and the general individual effects of various system challenges. This was an informative commentary as they related some of the foundational content from previous chapters to provide a slightly different perspective. One element that may have been considered is describing protective and resiliency factors related to self-care and best practices in levels of support from colleagues and mental health practitioners.
In summary, the book titled Negotiation and Conflict Resolution in Criminal Justice – a Handbook provided an overall constructive perspective of the number of topics that were considered and described. Although some of the topics and related commentary were not in-depth, readers were provided with a number of suggestions for additional readings or resources in each chapter. Moreover, the book draws our attention to the various skills and competences for lawyers that are viewed more in the humanistic or psychological realm. The attention to the health and well- been up those involved in the legal and criminal justice system was an essential consideration in the handbook.
DR. SCOTT MACLEAN
MOUNT ROYAL UNIVERSITY