796549

research-article2018
CRJ0010.1177/1748895818796549Criminology & Criminal JusticeDíaz Gude and Navarro Papic

Article
Criminology & Criminal Justice
2020, Vol. 20(1) 57­–75
Restorative justice and © The Author(s) 2018
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DOI: 10.1177/1748895818796549
https://doi.org/10.1177/1748895818796549
journals.sagepub.com/home/crj

Alejandra Díaz Gude

Universidad San Sebastián, Chile

Iván Navarro Papic

Universidad San Sebastián, Chile

Abstract
This article explores the question of how to expand restorative justice as a national policy in
a country underrepresented by the literature. We maintain that considering legal culture is
essential. We identify restorative justice traditions that are characteristic of civil law and common
law legal systems, respectively, and compare them with a case study belonging to the former
system. We argue that restorative justice practices are shaped by the legal culture, political
tradition and criminal justice identity of the system where they develop. We suggest an approach
to transferring restorative justice practices based on comparative criminology, restorative justice
traditions and legal culture, making a theoretical contribution to the field, as well as having
practical implications at the level of public policy design.

Keywords
Comparative criminology, legal culture, public policies, restorative justice, victim–offender
mediation

Introduction
This research explores the question of implementing restorative justice on a national
level once the approach has been successfully introduced and realized on a more modest
scale. The question was prompted by the experience with restorative justice (RJ) in
Chile, where there have been RJ practices operating for more than a decade; where there

Corresponding author:
Alejandra Díaz Gude, Faculty of Law and Government, Universidad San Sebastián, Bellavista No. 7, Recoleta,
Santiago, 8420524, Chile.
Email: Alejandra.diaz@uss.cl
58 Criminology & Criminal Justice 20(1)

have been large scale structural incentives for RJ; and where criminal justice policy
favours or is open to RJ approaches, but nonetheless, where it has not moved to the cen-
tre stage in the Chilean juvenile and criminal justice system. One contribution of this
article is to introduce the RJ experience of a jurisdiction underrepresented in English
language academic literature. In addition, and just as fundamentally, it aims to address a
gap in knowledge, in how RJ expands from local to national public policy. Of the studies
that do cover implementation of RJ (Aertsen et al., 2012; Blad, 2012: 97; Dignan, 2000;
Van Ness and Strong, 2015: 49, 133–147), there is little reference to issues of legal cul-
ture (Friedman, 1997; for exceptions, see Dignan and Cavadino, 1996; Shapland, 2011).
An analysis of Chile, where the legal culture has elements analogous to or drawn from
both civil and common legal jurisdictions, offers a novel setting to interrogate models of
RJ that are largely studied in specifically civil legal (e.g. Continental European) or com-
mon legal (e.g. the USA, UK or Australian) systems.
A possible path to follow in understanding the expansion of RJ as a national policy is
to analyse comparative experiences and to learn from them. In the Latin American region,
penal policies are frequently imported from abroad (Fonseca and Bolívar, 2015: 153). In
the literature on comparative criminal justice, some important findings related to this are
that: (1) criminal justice practices and policies tend to reflect the culture and national
histories in which they are embedded (Tonry, 2015: 512); and (2) there are risks inherent
in the transfer of criminal justice policies and practices, given the complexities of criminal
justice systems and the problems of translating concepts and institutions from one culture
to another (Brants, 2011: 52–55). Taking into account these observations, this article’s
analysis starts with the premise that: a country seeking to expand RJ should look at coun-
tries or systems which have had success in implementation and which have similarities
with its own legal and socio-political culture in general, and with its RJ tradition, in par-
ticular, in order to learn from it/them. This framing of RJ in comparative context fits with
Nelken’s (2011: 1–3) argument for sound comparative criminological analysis and policy
transfer. The following hypothesis allows one to operationalize this premise for the pre-
sent analysis: RJ developments in a given country will be a reflection of said country’s
legal, social and political culture.
In order to explore this hypothesis, the single case study research method was adopted.
The selected case study consisted of RJ developments in Chile. These are contextualized
through two dominant RJ models, which reflect wider legal, political and cultural tradi-
tions. An assessment then followed of whether or not RJ in Chile was closer to one of
these models, and whether this enables us to generalize the case study findings to the
theoretical proposal contained in the hypothesis.
In the first section, a concept of RJ is provided. In the second section, RJ traditions and
legal systems are analysed. In the third section, the methodology is discussed. In the fourth
section, the case study context is examined. In the fifth section, the case study is analysed
according to key features, followed by further analysis and lastly, our conclusions.

Concept of Restorative Justice

Restorative justice emerged in the 1970s and 1980s in different parts of the world
(Bazemore and Schiff, 2001: 25; Braithwaite, 1999: 3; Zehr, 1990) as a new practice and
Díaz Gude and Navarro Papic 59

theory of criminal justice, as well as a social movement, aiming to transform and/or

replace the current criminal justice system of contemporary, western societies, based
mainly on retributive and/or rehabilitative philosophies and goals.
Restorative justice proposes a more inclusive and participatory criminal justice pro-
cess, whereby victims and offenders are the key actors in a collective, ideally face-to-
face, process designed so that they can talk about the offence and how to make things
right again. In this process, the community and the State also have important roles. The
community’s participation allows it to: incorporate a community ‘input’ into the process;
contribute to the reintegration of victims and offenders; receive material or symbolic
reparation as an affected party by the offence; and strengthen community bonds. In turn,
the State is expected to provide the conditions for RJ processes to flourish as well as
securing the observance of basic due process rights within them (Van Ness and Strong,
2015: 56–57; Walgrave, 2000: 268–269).
Initially, the most generally accepted definition of RJ was that of Marshall (1999: 5),
which placed an emphasis on RJ as a process involving a new set of stakeholders com-
pared to traditional criminal justice. This definition has been criticized because it does
not place sufficient emphasis on the outcome of reparation (Bazemore and Walgrave,
1999: 48). The United Nations Resolution on Basic Principles on the Use of Restorative
Justice Programmes in Criminal Matters (ECOSOC 2002) adopts a definition of RJ that
encompasses both processes and outcomes (Articles 2 and 3). Walgrave (2000) maintains
that it is possible for RJ to consist of only outcomes in certain cases (e.g. a restorative
community service sanction imposed by a judge). For the purpose of this research, we
employ a comprehensive understanding of RJ practices involving both processes and
outcomes, believing that this entails a more fully ‘restorative’ system (Wachtel, 2013: 4).
Additionally, we affirm a concept linked to the values that underlie RJ processes (encoun-
ter, amends, reintegration, participation, responsibility and respect), which guide their
implementation and/or operation (Braithwaite and Strang, 2001: 1–2; Van Ness and
Strong, 2015: 48–50; Zehr and Gohar, 2003: 35–39).

Traditions of Restorative Justice

There are many different traditions of RJ that have been identified in the literature (see,
for instance, Adler, 1993; Dignan and Cavadino, 1996: 166; Dünkel et al., 2015: 188). In
what follows, we identify RJ traditions that are characteristic of civil law and common
law jurisdictions, in that they reflect key cultural elements of these two main arrange-
ments of legal systems.
Authors have previously used the civil law and common law distinction as a frame-
work for explaining differences and similarities in developments of restorative justice.
For instance, Faget (1993, 2000) explained how the political, historic and socio-legal
features of France, which has a civil law system, tend to run in tension with some of the
values of restorative justice, thus shaping the dominant model of ‘penal mediation’ there,
which is a limited form of victim–offender mediation (see later). Several authors have
analysed penal mediation in France as illustrative of the tensions between two notions of
justice: the first inherited by the Napoleonic tradition, where the principle of legality is
central,1 and the second prioritizes flexibility of practice, is party-centred and allows for
60 Criminology & Criminal Justice 20(1)

different normative orders to co-exist (Faget, 1993). Shapland (2011), in turn, refers to
the ‘uneasy’ relationship with ‘community’ that RJ practices have in countries such as
France, Belgium and Germany, explaining this as a consequence of the particular fea-
tures of their civil law traditions and national criminal justice cultures. Crawford (2000)
analysed penal mediation in France, its connection to Houses of Justice and the discourse
of ‘justice de proximité’ as a very ‘un-French legal response’, one which departs from
French legal tradition and at the same time, embodies, as well as tries to resolve, signifi-
cant contradictions within French legal culture in a period of socio-legal challenges
(Crawford, 2000: 31).
Two important RJ traditions that emerge respectively from civil law and common law
systems are the Continental European and communitarian traditions.

Continental European tradition

This is related to western Continental European countries, which share a common politi-
cal regime (liberal, social democratic), a similar civil law legal system, a Catholic reli-
gious tradition (with some exceptions such as Germany) and where the development of
RJ has been, in general, more widespread and longstanding than in eastern Europe
(Crawford, 2000: 29; Dünkel et al., 2015: 6, 209–210). Napoleonic legal heritage lies at
the heart of this tradition, which is exemplified by legal codification. From a religious
perspective, civil law and common law traditions reflect the influence of Catholicism
and Protestantism, respectively. The religious variable has a particular influence on the
different conceptions of community shared by these systems. Whereas Catholicism sup-
ports a centralized vision of power, Protestantism is openly anti-statist and defends the
idea of the city governing itself and of citizen responsibility in local affairs (Faget, 2000:
42). Thus, systems influenced by the Catholic tradition give less space for community
participation in public life than those based on Protestant ethics.
Another difference between civil and common law systems is the way in which the
relationship between individuals and authority is conceived. According to Faget
(2000: 42), British common law illustrates the idea of individual or group autonomy
over the power of the monarch or government. Justice and judges are seen as emanat-
ing from society, and citizen participation is considered a crucial element of democ-
racy. This is reflected in the British understanding of community which, according to
Crawford, is ‘nourished by a powerful “anti-statism”’ (cited by Faget, 2000: 41). In
civil law systems, in contrast, the State distributes law, and justice is a bureaucratic
appendix of the central power, whereby judges are agents of the sovereign authority.
In this context, the delegation of power to the community is much more limited
(Faget, 2000).
The concept of civil rights in civil law systems is fundamentally linked to the State
and to notions of citizenship, and this goes back as far as to Roman law (Weinacht, 2002:
210). Napoleon’s Civil Code brought about the ideal of the universal application of civil
rights and of equality of all citizens in a given nation.
In the particular field of criminal justice, these systems accord great importance to the
principle of legality in prosecution, though this has begun to change in recent decades,
where increasingly a principle of prosecutorial discretion exists. This has helped to
Díaz Gude and Navarro Papic 61

facilitate the introduction of RJ initiatives in Continental European systems (Dünkel

et al., 2015: 184–185; Faget, 2000: 39–40).
The above discussion identifies wider political and religious cultural features in civil law
countries that produce the Continental model of RJ adopted, and we particularly note the
factor of weak community participation. This is reflected especially in the type of RJ pro-
gramme that is pre-eminently found in these jurisdictions: the victim–offender mediation
process (VOM) (Dünkel et al., 2015: 189), called ‘penal mediation’ in Spain and France.
This type involves bilateral processes of conflict-resolution between the victim and offender,
where the community has little or no participation.2 A second characteristic is that mediators
within this tradition tend to be mostly professionals3 (Aertsen, 2000: 174; Dünkel et al.,
2015: 204; Faget, 2000: 44; Pelikan, 2000: 134–137). This is in contrast with the victim
offender reconciliation programmes (VORP) within a faith-based tradition of RJ (Zehr,
1990; Zehr and Gohar, 2003), in which mediators are usually volunteers from the commu-
nity and are seen as representatives of community in the process (Díaz Gude, 2004: 182).
The fact that VOM models are the prevalent form of RJ practices in the Continental
European tradition (Zinsstag et al., 2011: 26) and that they use mostly professional medi-
ators, may be understood as a consequence of the uneasy relationship that civil law sys-
tems hold with the idea of direct involvement of lay community members in criminal
justice processes. Shapland (2011) asserts that the reluctance to incorporate community
within RJ processes in civil law countries is due to the fact that this would be seen as a
threat to equal delivery of services to individuals in those countries that have a strong
state model (Shapland, 2011: 447). She argues that although there has been a move
towards recognition of the importance of community in RJ in these jurisdictions, this has
been in the form of alternative notions to community, such as the concept of ‘proximity
justice’ in France, which keeps elements of state’s justice in it (to ensure the principle of
‘universality’ in the delivery of justice services is maintained) (Shapland, 2011: 444).
In Continental Europe, only Belgium and The Netherlands have implemented nation-
ally a model of restorative conferences for juveniles (Dünkel et al., 2015: 198), but the
number of cases handled through conferences is rather small. Furthermore, the agree-
ments that are reached and successfully completed do not necessarily have an influence
on penal proceedings (Dünkel et al., 2015: 27). In Belgium, taking both adults and juve-
niles into consideration, RJ has primarily taken the form of VOM (Aertsen, 2012: 68).
Another important feature of this tradition, expressed in the works of Lode Walgrave
(2000), is the relevance accorded to the role of the State in RJ, serving the functions of
preventing abuses from community and safeguarding rights and legal standards within
RJ processes. As such, a judicial framework for VOM is an important feature in this
tradition (Zinsstag et al., 2011: 35).

Communitarian tradition
This is linked to communitarian debates (e.g. Etzioni’s communitarianism as cited in
Crawford, 1999: 195), and to John Braithwaite’s normative theory of justice, republican-
ism (Braithwaite and Pettit, 1990) according to which, the goal of RJ should be the
‘maximisation of dominion’ (Braithwaite, 1995: 279) – or republican freedom – for all
citizens. It conceives RJ as ‘deliberative justice’ (Braithwaite, 1998: 329), which is
62 Criminology & Criminal Justice 20(1)

opposed to the ‘professional justice of lawyers’. This tradition stresses the importance of
a mutual checking of powers between the State and the community (Braithwaite, 1998:
335–336), and conceives of community as the most important site of social regulation
and crime control in society.
Another line of a communitarian RJ tradition is the theory and social movement called
‘restorative community justice’ (Bazemore and Schiff, 2001: 27–34), which seeks to
involve communities in the decision-making processes regarding crime, in order to
strengthen relationships and informal social control processes. It places a special focus
on crime prevention, problem solving and ‘quality of life’ issues. Community input and
involvement is promoted within a RJ vision and value-based framework (Pranis, 1998).
Professionals are involved in decision making, but in new, different roles to the ones they
have played in traditional community policing and criminal justice systems (Bazemore
and Schiff, 2001: 37; Pranis, 1998: 42).
At the practical level, this tradition encompasses all RJ practices in which the com-
munity plays a key role, whether they be ‘communities of care’ in Australian community
conferences (CCs) (Hayes et al., 2014: 111–114), the nuclear and extended families and
support groups in New Zealand family group conferences (FGCs) (Morris and Maxwell,
2000) and/or community panels at youth offender panels (YOPs) in England and Wales
(Crawford and Newburn, 2003) and restorative panels in Vermont, USA (Karp and
Walther, 2001). Within this tradition, community involvement may play various different
roles (Crawford and Clear, 2001: 132).
The communitarian model of RJ conceives the transfer of power from the State to lay
citizens and community, and has emerged primarily in English-speaking countries that
follow the common law system and, from there, has expanded to non-English-speaking
countries and civil law jurisdictions. Its emphasis on the role of community reflects key
socio-legal and cultural elements of common law systems, where for example, verdicts
are given by juries. It is, therefore, not a coincidence that conferences and other commu-
nity-oriented RJ programmes have had a stronger presence in those systems, where they
have also taken a more systemic and central place in their juvenile justice systems, com-
pared to Continental European ones (Dünkel et al., 2015: 194, 199; Zinsstag et al., 2011:
19, 72). This is the case, for instance, of YOPs in England and Wales, FGCs in New
Zealand, CCs in Australia and youth conferences in Northern Ireland, all of which have
been established as mainstream responses to juvenile offending. They have been incor-
porated into national legislation, and have operated either as diversion from prosecution
and/or at the court level, with the aim of constituting a barrier to formal court proceed-
ings or to traditional punitive sanctions. In most of these models, referrals are mandatory
and agreements reached have an influence on the continuation of proceedings (Crawford
and Newburn, 2003: 9–18; Dünkel et al., 2015: 54–57, 195; Hassall, 1996: 18; Hayes
et al., 2014: 111; Maxwell and Morris, 1996; SRSG, 2013: 8; O’Mahony, 2006).
Table 1 shows the key characteristics of the two RJ traditions discussed.

Research Methodology
This research analyses a case study belonging to the civil law tradition but with a hybrid
mix of RJ elements of common law (communitarian republican) and civil law (Continental
Díaz Gude and Navarro Papic 63

Table 1.  Key characteristics of the Continental European/civil law model and the
communitarian-republican/common law model.

Continental European/civil law model Communitarian-republican/common law model

• Weak participation of community,
expressed in:
(a) bilateral processes are dominant
(b)  mostly professional mediators
•  Relevance of a judicial framework
• Strong participation of community,
expressed in:
(a) three stakeholders to the process are
actively involveda
(b) professionals are involved in new roles
• Mutual checking of powers between state
and community (republican)
• Crime-prevention, problem-solving
and ‘quality of life’ issues are relevant
(restorative community justice)

Note: aAccording to Zinsstag et al. (2011: 46), by giving voice to more people and introducing the concept
of a facilitator, conferencing programmes limit the power accorded to professional mediators, and by
including in the process local community and community of support stakeholders, it encourages more active
community dialogue and responsibility.

European) systems. It has both a descriptive as well as an explanatory nature, aiming to

show and to analyse how RJ practices are being shaped in a specific jurisdiction, and
whether and how legal culture influences these developments.
Given the nature of the research question and the interest to share the experience of an
underrepresented country, namely Chile, the case study strategy was deemed appropriate
(Yin, 1994: 4–11). Regarding the problem of external validity (Yin, 1994: 33), analytic
generalization has been adopted (Yin, 1994: 30), whereby the findings of the research are
linked to the key theoretical proposition of the research, which is contained in the hypoth-
eses stated earlier. The key conditions to test this proposition come from the Continental
European side of Table 1:

•• the case study has a preeminent practice of VOM;

•• it uses pre-eminently professional mediators.

If these conditions are met, the case study will likely be a reflection of a socio-legal,
political and cultural tradition based on civil law systems, and it will specifically reflect
a Continental European RJ tradition.
The period of data collection for the selected case study consists of RJ developments
in Chile taking place between 2001 and 2014. Twenty-four penal mediation and restora-
tive justice programmes, pilots or experiences were identified for this period (see Table 2),
which involved over 7400 cases.
The method consisted, first, of a literature review in order to understand the socio-
legal context of the case study. Second, data were collected on RJ practices of 24
programmes.4 Programmes were then systematized according to some key features
used in the international research literature in order to compare Chile with RJ prac-
tices between different jurisdictions (see Dünkel et al., 2015; Miers, 2001; Zinsstag
et al., 2011).
64 Criminology & Criminal Justice 20(1)

Table 2.  Case study penal mediation and restorative justice programmes, pilots or
experiences.

Name of programme Type of offenders

1 Prosecution Office (PO) and Catholic University of Temuco’s Adults
Centre for Alternative Dispute Resolution
2 PO’s Regional Units for the Attention of Victims and Witnesses Adults
3 National Service for Minors, Projects for Reparation of Victims Juveniles
and Community Services, in Regions II, III, IV, VII and IX
4 PO and Carlos Casanueva Institute Adults
5 Legal Aid Service (CAJ) of Biobío, through both its Centre for Adults
Attention of Victims of Violent Crimes and Mediation Centre
and Prosecution Office
6 Diego Portales University and PO Adults
7 CAJ of Valparaíso and PO Adults
8 Metropolitan Region CAJ and North PO Adults
9 Metropolitan Region CAJ and South PO Adults
10 Metropolitan Region CAJ and East PO Adults
11 Metropolitan Region CAJ (Rancagua) and PO Adults
12 Biobío CAJ (Concepción) and PO Adults
13 Metropolitan Region CAJ and National PO Juveniles
14 Metropolitan Region (Talca) CAJ and PO Adults
15 Biobío Region CAJ (Temuco) and PO Adults
16 Biobío Region CAJ (Pto. Montt) and PO Adults
17 Tarapacá Region CAJ and PO Adults
18 CAJ of Valparaíso (La Serena) and PO Adults
19 Universidad Central and PO Adults
20 Metropolitan Region CAJ (Pta. Arenas) and PO Adults
21 Opción Corporation (OC) and Metropolitan Region PO Juveniles
22 OC and Magallanes PO Juveniles
23 OC and Maule PO Juveniles
24 CAJ of Valparaíso (Copiapó) and PO Adults

The analytical methods used were secondary and tertiary data analysis (Arksey and
Knight, 1999), employing content analysis of texts gathered on the RJ programmes
(Bell, 1999; May, 1997; Silverman, 2000: 89). These consisted of programme docu-
ments, manuals, public service reports5 some of which contained analysis and evalua-
tions of the projects,6 statistical reports from some of the surveyed projects and
questionnaires. Updated statistics from the Legal Aid Department of the Judicial
Division of the Ministry of Justice and Human Rights and from the mediation centres
themselves were obtained regarding Legal Aid Corporations, hereinafter CAJ.7 For pro-
grammes where there was no public information available,8 and for those which were
inactive (during the period of data collection but active during the time frame studied),
a questionnaire was developed and sent to the heads of these programmes or their
related participants (when possible). Fifteen questionnaires were sent, and 11 responses
Díaz Gude and Navarro Papic 65

were collected.9 Taken together, this information provides a rich picture of the operating
philosophies, caseload profiles and numbers, organizational setups and involvement
with other actors (e.g. prosecution) of two dozen RJ programmes in Chile. Programmes
were systematized (using criteria below) based on secondary data and tertiary analysis
of available programme information.

Context of the Case Study: Mixed Civil and Common Law

Influence in Chile
Chile is a country which follows the civil law tradition. Its legal culture has been shaped
by ideas of classic constitutionalism and the codification movement. Politically, it has a
strong, centralized state (Krebs, 1998: 48) accompanied by several authoritarian features
and centralist visions of power in society. Catholicism has remained the dominant reli-
gion. A key principle which runs through its judicial system and professional legal cul-
ture is the principle of legality, with a strict separation of powers between the legislative,
the executive and the judiciary (although this may not apply so strictly in practice). The
creation of law is seen as an exclusive competence of the legislator, who is a representa-
tive of the sovereign will (Correa, 1988: 86). The judiciary during most of the 20th cen-
tury kept a hierarchical structure and maintained a culture distant from the social and
political processes that took place during that period. This caused it to be marginalized
by other powers of the State, and to be considered as a public service subordinated to the
other political powers but functionally autonomous (Correa, 1988: 86). Specifically with
regard to criminal justice since the 19th century, the Chilean state has had an inquisitorial
system, with no community participation (for instance, no jury system). With a strict
principle of legality in prosecution, the functions of investigation, prosecution, judge-
ment and sanction were in the hands of the same judge (Duce and Riego, 2000). In 2000,
Chile underwent major criminal justice system reform, changing to an adversarial sys-
tem, which has an oral trial in front of three judges and the incorporation of more pros-
ecutorial discretion, among other features as key components (Riego, 2008). This reform
was part of a broader process of modernization, democratization and strengthening of
human rights in the country, after a long period (17 years) of military dictatorship (Riego,
2008: 339). Interestingly, the criminal procedure reform followed the Model Criminal
Procedure Code for Ibero-America, which in turn was modelled on the Continental
European tradition of criminal procedure systems (Riego, 2008: 343–345). However,
during the parliamentary debates, Anglo-American systems exerted considerable influ-
ence, particularly those of the United States and England and Wales, with the resulting
reform producing institutional arrangements which in some key aspects made the legal
framework more adversarial than its Latin American counterparts (Riego, 2008: 343).
Chilean criminal procedural reform in turn has had a significant influence on legal reform
processes in other Latin American countries (Riego, 2008: 355–356).
One of the diversionary mechanisms that the reform introduced are the so-called
‘alternative settlements’, which served to incorporate RJ in the country. This has taken
place despite the fact that the law does not specifically mention RJ or penal mediation
(Díaz Gude, 2010).
66 Criminology & Criminal Justice 20(1)

After the criminal procedure reform took place, the juvenile justice system underwent
a significant change too, with Law No. 20.084 (June 2007). It changed from an essen-
tially welfare, rehabilitative model,10 to a rights-based, ‘just-desert’ model with some
educative goals. A key purpose of the law was to align the juvenile justice system to the
1990 UN Convention on the Rights of the Child. Procedurally, it adopted the basic adver-
sarial framework of the adult criminal justice process, with some specific juvenile justice
institutions.
RJ in Chile is a theory and practice that has been transferred from abroad (Díaz Gude,
2010), and the most widely used concept is ‘penal mediation’. Apart from the incorpora-
tion of prosecutorial discretion as stated above, key factors that have contributed to the
development of RJ in Chile are (Díaz Gude, 2010: 16–35):

(a) the arrival of the alternative dispute resolution (ADR) movement in the 1990s, as
part of the broader processes of democratization and modernization of the Chilean
state and its justice system, which has sought to improve access to justice for
people, especially for the poor, improve the quality of justice solutions, reduce
overloading of the courts and empower communities;
(b) the expansion and influence of the victims’ movement; and
(c) various initiatives from non-governmental organizations (NGOs),11 academic
institutions (both public and private), the government (particularly through its
Ministry of Justice and Human Rights), the judicial body (in recent years, through
the Supreme Court) and international organizations to support training, evalua-
tions, experimentation and seminars on these matters.12

The research undertaken reveals that though there is availability of RJ programmes in

different parts of the country, it is not possible to ascertain that there is a national avail-
ability of RJ in Chile, for the following reasons: (a) it is mainly applied to adults; (b)
programmes are not located in all the main capital regions of the country; and (c) the
number of cases referred to the initiatives is still marginal considering the universe of
cases being processed through the criminal and juvenile justice system (see note 20).
Explanations for the limited development of RJ in Chile have been proposed (González
and Fuentealba, 2013: 199; Peñaloza, 2012: 102) as: lack of institutionalization of RJ;
managerial considerations; legal discourses critical of RJ; punitiveness of the popula-
tion; and lack of a national model of RJ.
From a socio-legal and cultural perspective, the centralist, authoritarian and hierarchi-
cal features of the Chilean state, society and judicial actors may run in tension with the
values of RJ, making it harder to flourish. However, these elements may not be enough
to explain the slow development of RJ in Chile since they can also be found in Continental
Europe, where RJ has flourished. For this reason, a second factor may contribute to the
explanation, which is the enactment of criminal procedure reform in 2000. This reform
put in place a significant amount of human, economic and institutional resources to sup-
port widespread implementation of RJ (Riego, 2008). It also effected cultural change in
respect of legal actors (Riego, 2008: 348–351), who historically worked in an inquisito-
rial, secret, written, criminal justice system, by creating new ones (such as the prosecu-
tor), who acquired a protagonist role in the procedures. In Chile, the movement for
Díaz Gude and Navarro Papic 67

Judicial Reforms that has spread in South America13 since the 1990s, meant that the new
adversarial system was the ‘fresh air’ that put an end to centuries of the inquisitorial
system. This contrasts with the situation experienced in the United States and other
European countries where RJ emerged as a critique to an adversarial system that had
been operating for decades (if not centuries) (Díaz Gude, 2010), and had entered into a
crisis of legitimacy and/or effectiveness (Crawford, 2000: 44; Shapland, 2011: 454–456;
Zehr, 1990: 94), or a ‘general dissatisfaction’ with the system (Braithwaite, 1999;
Pavlich, 2005, cited in Hayes et al., 2014: 111). Since RJ posits a fundamental critique to
adversarial justice, one could hypothesize that its ideological message would be weaker
in countries undergoing justice changes such as Chile (Díaz Gude, 2010: 61). The legiti-
macy enjoyed by the newly established criminal justice system in Chile may have acted
as a barrier against the flourishing of RJ (as there was no sense the system needed this
further ‘reform’). Paradoxically, the introduction of the principle of prosecutorial discre-
tion through reform opened up space for the incipient incorporation of RJ.

Chilean Case
This section systematizes programmes according to key features.

Type of restorative practice

All the programmes studied adopted the VOM model of RJ, with 55 per cent of the pro-
grammes studied14 using direct mediation, 10 per cent indirect mediation and 35 per cent
both mediation formulas. In terms of the total number of cases (not programmes) which
went through mediation (4.520 cases), 96.9 per cent of them used direct penal mediation.
Seventeen programmes (85 per cent) utilized individual sessions held with each party
prior to the joint session.

Institutional location and operation of programmes

Mediation was conducted in different institutional locations: one programme operated
at the prosecutor’s office, eight in civil society organizations and 15 at public
organizations.
The role of the mediator was mostly undertaken by professional mediators (a psy-
chologist, social worker or lawyer trained in ADR) contracted by organizations operating
outside the criminal justice system. In the case of the programme at prosecutor’s office
(URAVIT) mediation was conducted by professionals working at the Victims’ Unit
(mostly social workers and/or psychologist) trained in mediation.

Referral sources
The Public Prosecution Office was the dominant referring body (18 programmes).15 This
is explained by the fact that penal mediation in Chile mainly takes place at an informal
stage, as a form of ‘diversion’ of cases governed by the public prosecutor who has the
exclusive right to public prosecution.
68 Criminology & Criminal Justice 20(1)

Stage of case disposal

In six projects cases were disposed through ‘optional prosecution terms’ (OPT) that oper-
ate before arraignment of the case; in three projects, cases were disposed through ‘alterna-
tive settlements’ (AS) that operate after arraignment but before trial and require the judge’s
approval; and in 10 projects cases were disposed through both mechanisms. Two projects
working with juveniles have added the possibility of referrals at the sentencing stage.

Crimes undergoing restorative processes

The most frequently referred offences were damage, threats, minor and moderate injuries,
theft and reckless bodily harm. A second group corresponded to misappropriation, fraud
and theft in a non-inhabited place and robberies in national public property. A small num-
ber of referrals included negligent homicide, serious injury, rape and violent robbery.16

Cases admitted/mediated/settled.  A total of 7435 cases were referred to penal mediation

projects from 2001 until 2014 (See Figure 1).17
From 2001 through 2007, there were only some isolated experiences of experimenta-
tion and development of referral protocols between prosecutors and mediation centres.
Subsequently, there was a second stage, from 2008 onwards, where CAJ reached agree-
ments with prosecutors to increase referrals. This coincides with the transfer of resources
to the Chilean government by the European Commission through its programme
EUROsociAL, which sought to increase the use of penal and community mediation as
mechanisms of social cohesion. In 2016,18 only seven projects were still operational.
The percentage of mediated cases (where at least one joint session was conducted)
over the total referred was 60.80 per cent. Agreements were reached in 62.60 per cent of
mediated cases.

Objectives of programmes
Most programmes were oriented towards the objective of RJ (e.g. reparation, restoration,
reintegration), followed by objectives linked to the ADR movement (e.g. improving
access to justice, seeking more collaborative solutions to conflicts, informal justice).
Half of the programmes (12) followed more than one goal.19 Crucially, managerial objec-
tives (e.g. easing court and/or prosecution congestion) contributed to participation of the
Prosecution in seven programmes.

Analysis
The number of cases referred from 2001 to 2014 confirms that RJ in Chile has not yet
become a mainstream practice,20 although there has been significant growth in referrals
since 2008 (and following infusion of European funding). It has been primarily applied
to adult offenders, following the trend of countries such as France, but distancing itself
from most other civil law countries in Continental Europe, where RJ has grown primarily
with juveniles (Dünkel et al., 2015: 4–5, 209). The management of cases shows consist-
ency over time in understanding and practice among RJ programme operators.
Díaz Gude and Navarro Papic 69

Figure 1.  Total number of cases referred to RJ programmes per year.

From the standpoint of programme philosophy, penal mediation familiar to the

Continental model is mostly inscribed in the theory and practice of RJ in Chile, often
co-existing with other goals or ideologies, especially those derived from the ADR and
access to justice movements (Matthews, 1988). These movements arrived in Chile before
RJ in the fields of family, civil and labour law, and many mediators – from their practice
and experience with mediation in these areas – became involved in penal mediation
practices (Díaz Gude, 2010: 16–30). The infusion of European money, which had among
its goals the promotion of social cohesion in the country, has also played a significant
role in the increase in cases referred and the dominance in the RJ market of CAJ
organizations.
The Chilean model corresponds to a Continental, professionalized approach to RJ, but
it also contains some elements of the common law model. The latter tradition is expressed
in the existence of: a political framework which values separation of powers; a criminal
procedure reform which has received considerable influence from Anglo-American sys-
tems, particularly with regard to the incorporation of the principle of prosecutorial dis-
cretion; and the arrival in Chile of the ADR movement which has been a key force in the
emergence of RJ. On the other hand, the professionalized approach of RJ in Chile,
together with the fact that it operates mainly as diversion from prosecution for less seri-
ous crimes, is likely a reflection of Chile’s own socio-legal, cultural and political tradi-
tion. It demonstrates a resistance to decentralize the resolution of conflicts out of the
judicial structures and a cultural and ideological distrust of community participation in
criminal matters, an area which is perceived by the legal and political community as the
symbol of the sovereign state.
At the same time, the arrival of the ADR movement in Chile, and the political process
of modernization of the justice system as a whole, making it more responsive to citizens’
demands, has paved the way for a certain transfer of power over the decision making of
conflicts from judges and professionals, to lay people directly involved in them. This,
70 Criminology & Criminal Justice 20(1)

together with the changes introduced by the criminal procedure reform, illustrates the
incorporation of common law, republican elements in the Chilean case. However, the
role of a third, neutral party – the mediator – that is performed by a professional, who is
usually part of a public service or a private sector organization that signs a contract with
the State, shows that this transfer of power is still mediated by the country’s deep-rooted
legal culture. Community is not yet seen as capable of resolving serious conflicts where
the public interest is also a key concern, and where state sovereignty is involved.
It is also illustrative of Chile’s legal culture that expansion of penal mediation took
place primarily thanks to a national implementation policy (facilitated by external fund-
ing), as shown in Figure 1, despite some scattered initiatives from civil society.
Given the above findings, should Chile, in seeking to expand RJ through a specific
public policy, examine countries or systems that follow a similar tradition on RJ to its
own and that have been more successful in its implementation?
This research suggests that it should, because penal practices and policies are to some
extent the product of national legal and political cultures, and so their transfer involves
risks related to the different contexts in which they take place. Some of those risks can
be reduced by transferring from ‘similar’ RJ traditions to the target one. This may also
make the transfer easier by confronting less resistance from legal actors called to imple-
ment them. Given that RJ in Chile has not yet moved to a mainstream position, this
strategy may also seem wise. The particular Chilean tradition suggests that it should
continue to develop the civil law elements shown until now (bilateral, professionalized,
processes of conflict resolution), through learning from more successful civil law mod-
els, while also assessing what features from the common law, communitarian-republican
tradition of RJ could benefit its model. After all, the successful criminal procedure reform
in Chile started within the framework of the Continental European tradition and subse-
quently incorporated common law institutions in specific areas of the whole new system.
This is our ‘own’ successful experience that we could follow.21
Communitarian-style conferences could be introduced in juvenile justice at certain
stages of the process since children’s ‘communities of care’ (Braithwaite, 1989) could
contribute to juveniles’ reintegration into society. The involvement of families in the
process would be an element consistent with Chilean legal institutions, given the
extended practice of family-mediation in the country. A communitarian-republican
philosophy could also be beneficial from a socio-political standpoint. Chilean society
has been characterized as unequal and with little social mobility (Andrews and Leigh,
2009), so the inclusion of such a philosophy in a RJ public policy may contribute
towards a more egalitarian society (Braithwaite, 1995). Community RJ theory would
involve transforming the role of professionals in the youth justice system, a role
which has historically evolved around needs-based, rehabilitative philosophies, only
to recently change to a rights-based, just-deserts one (with some educative goals).
This would represent a further challenge for the system, as well as an opportunity.

Conclusions
Restorative justice developments in Chile are a reflection of the country’s legal culture,
national criminal justice identity and socio-political tradition, and of the changes that
Díaz Gude and Navarro Papic 71

they have undergone in recent decades. They are connected with a Continental European
tradition of RJ that is typical of civil law systems. However, they have also incorporated
elements from the common law systems, specially linked to the broader reforms to its
justice system that took place with the transition to democracy. For various reasons, it is
herein suggested that public policies seeking to expand RJ in Chile would do best to start
from working within its own legal institutional tradition. Given the hybrid approach to
RJ that Chile has undertaken so far, those looking for a national policy need to draw both
from civil law as well as common law, communitarian-republican traditions with regard
to both the specific features of the conflict-resolution process to be implemented and the
theoretical framework underpinning it.

Acknowledgements
The authors would like to thank Prof. Vernon Jantzi, EMU University, for his useful comments on
this article, and to the 24 programmes who collaborated with this research.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship,
and/or publication of this article.

Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/
or publication of this article: This work was supported by Comisión Nacional de Investigación
Científica y Tecnológica-CONICYT PIA (SOC 1406).

Notes
  1. This centrality is expressed, for instance, in the encouragement (and lobby) that judicial insti-
tutions made during the expansion of victim–offender mediation (VOM) in France in the mid-
1980s for the adoption of one standard model of VOM – the penal or legal mediation model
– under the argument that the existence of different models could infringe upon the right of
equality of offenders.
  2. By participation it is here meant the opportunity for direct and full involvement of each party
in the encounter, reparation and reintegration processes involved in RJ (Van Ness and Schiff,
2001: 56).
  3. Though there might be volunteers in this tradition (see, for instance, Crawford, 2000: 36–37;
Jullion, 2000: 240), the use of professional mediators will be the dominant practice.
  4. This represents the total universe of RJ programmes in Chile during the period considered (if
there is a programme not included in the list, it would consist of a very minor, short duration
and underreported initiative).
  5. These were from the Ministry of Justice of Chile, the National Service for Minors (SENAME),
the Legal Aid Corporations (Corporaciones de Asistencia Judicial – CAJ) and the Public
Prosecution Service (Ministerio Público).
  6. A particularly relevant one was the ministerial report, Díaz Gude and Navarro (2015).
  7. There are four CAJ at a national level, that administer 11 mediation centres located in differ-
ent cities.
  8. One of the authors (Navarro), worked as a coordinator in the Mediation Centre of Santiago,
CAJ RM, from 2009 to 2011.
72 Criminology & Criminal Justice 20(1)

  9. Systematization of 11 programmes was made based on information gathered through question-

naires, and of 13 programmes on information gathered through secondary and tertiary analysis.
10. In Chile, as in most Latin American countries, welfare juvenile justice systems have had spe-
cial features which have led authors to refer to them as ‘modelos tutelares’ (Cillero, 1994).
11. Such as Foundation for Social Aid of Christian Churches (FASIC), Rodelillo Foundation,
NGO Corporation FORJA (Legal education for Action), Institute for Family Therapy, NGO
House for Peace, Corporation Opción that works with juveniles and delinquents, Citizens
Peace Foundation, among others. CEJA (Center for Justice Studies of America) has made
evaluations and studies on ADR and criminal justice procedure reforms.
12. International organizations that have funded RJ programmes in Chile have mainly been the
European Union through EUROsociAL (http://eurosocial.eu/en/pagina/el-programa), and the
European Commission. The European Forum on Restorative Justice has provided technical
assistance to Chilean Ministry of Justice and Organización de los Estados Americanos (OEA)
have funded studies and evaluations for Latin America. The Conference of Justice Ministers
of Iberoamérica has also been active in promoting ADR and RJ as a public policy.
13. This movement is linked to the recovery of democracy in Latin American countries, in which
governments sought to modernize and democratize their judicial and criminal justice systems,
to make them more compatible with human rights international standards.
14. Information for these features was obtained in 20 of 24 programmes.
15. Other sources of referral were: Public Defence (three); Judiciary (four); Victims’ Units (two);
No information (1) (some projects had more than one referral source).
16. Information was not always presented in a uniform way by all programmes. We systematized
information that was presented in qualitative terms with other presented in quantitative terms.
17. Information gathered through response to questionnaires, secondary analysis of programmes’
documents and analysis of statistical data gathered directly from Ministry of Justice and
Human Rights and CAJ.
18. Latest date in which this information was checked for this research.
19. Other goals were related specifically to juvenile justice and the victims’ movement.
20. During the period 2011–2015, the average number of cases entering the PO, for both adults
and juveniles, with a known offender, was 595.301 per year (Public Prosecution Bulletins
of years 2011 to 2015, available at: www.fiscaliadechile.cl, accessed 3 January 2018). The
average number of cases referred to RJ in the same period was 1.197, that is, 0.2 per cent
of all cases entering the system. The statistics of ‘known offenders’ are considered here,
because RJ can only be applied when there is a known offender. For comparison, see: in
England and Wales referral orders to YOPs comprised one-third of all juvenile sentences in
2010/2011 (Dünkel at al., 2015: 57); in Northern Ireland, of all offence-related referrals made
in 2011/2012 to the police-base Juvenile Diversion Programme around 13 per cent were dealt
with by means of a restorative caution (Dünkel et al., 2015: 127). At the court sentencing
level, court-ordered youth conferences accounted for by far the largest share of cases coming
to the courts in 2012 (N = 402). Only 50 juveniles were sentenced to custody in a juvenile
justice centre in 2012. In 2013, 1219 10–17-year-old offenders were convicted. Of them 566
received a youth conference order (46.4 per cent) (Dünkel et al., 2015: 128).
21. It is also worth noting that a number of Continental European countries have begun to intro-
duce conferences after developing VOM processes (Dünkel et al., 2015).

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Author biographies
Alejandra Díaz Gude has a degree in Law from University of Chile and holds a PhD in Law from
the University of Leeds, England.
Iván Navarro Papic is a lawyer at the Ministry of Justice and Human Rights of Chile. He has a
diploma in Public Policy and Management of Public Interest Conflicts and is a research collabora-
tor at Universidad San Sebastián.