As its name indicates, participative justice allows people who have a legal problem to actively participate in finding a solution to the problem.

Participative justice favours methods that encourage finding solutions through collaboration, consensus between people, and the prevention of conflict. These methods are generally cheaper, faster, and at least as effective as going to court, for example: mediation, conciliation, arbitration, etc.

An important aspect of participative justice is that lawyers must inform and advise their clients about the different ways to resolve the clients' dispute with other people. Clients can then make an informed decision about the solution to the dispute that best suits them, taking into account not only their own needs, interests, and means, but also those of the people with whom they have a dispute.

Participative justice is divided into two categories: consensual justice and restorative justice. (See the questions “What is consensual justice?” and “What is restorative justice?”)

One of the characteristics of participative justice is that the lawyer encourages his client to participate not only in the choice of the method to resolve the dispute, but also in looking for a solution. The lawyer thus focuses on prevention, cooperation, and collaboration between the parties (the people involved in the dispute), instead of focusing on confrontation.

Participative justice also involves flexibility. A lawyer must adapt his advice to the nature of the dispute and to the personality of his client. A lawyer can propose to his client a method that provides an opportunity to go beyond the strict legal framework of the dispute and to consider the dispute with a more global perspective. As such, the people involved can take into account the real source of the dispute, the emotional considerations, and the relationship between themselves.

Indeed, it is quite possible that people have hated each other for a long time, and that their hatred leads to a legal dispute. A court that is handling such a dispute can only take into account the legal elements, because the court’s role is to apply the law (rules of law, proof, and procedure). But, people who are involved in mediation or negotiation can decide to consider the dispute in its entirety. They can choose for themselves the rules that they will follow to come to a satisfactory agreement that suits their situation.

The goal of consensual justice is to find a solution to a dispute that is satisfactory for all of the people involved. For consensual justice to work, the parties must have a desire to resolve the dispute by looking for a compromise, with or without the help of other people like a mediator or a conciliator. To find out more about the work of a mediator or a conciliator, read our Infosheet called “Alternative methods of dispute resolution.”

Even if this seems strange, consensual justice includes legal recourses. This is because often a legal recourse ends because of a negotiated solution, brought about with or without the help of lawyers. A judge, then, no longer has to make a decision about the dispute. This is called an “out-of-court settlement” or a settlement.

In many situations, a legal recourse may be unavoidable, including when the parties don’t agree on the events that led to the dispute or when one of them doesn’t want to budge, which prevents any agreement. One person may also absolutely want a court to settle the dispute. In this situation, the person’s lawyer should make sure that the client understands that a legal recourse may involve:

• High costs;
  
• Long waiting times;
  
• Stress caused by legal proceedings and waiting;
  
• Confrontation between the parties;
  
• Uncertainty about the outcome.

Consensual justice consists of many methods: negotiation, mediation, conciliation, etc. (To find out more, read our Infosheet called “Alternative methods of dispute resolution”). Before deciding, it is important to look for the method that best suits the situation. In particular, keep in mind that:

• To be effective, the different methods of participative justice require the parties to personally commit to finding a solution to the dispute.
  
• These methods require a certain balance of power between the parties; the people must also have a physical or mental state that allows them to participate in the methods.
  
• Going through negotiation, mediation, or conciliation requires the parties to be frank and open about all of the facts surrounding the dispute. The parties must act in good faith and be honest, if they want to come out satisfied with the process. The process can’t work if one of the parties puts all of his cards on the table while the other keeps an ace up his sleeve!
  
• The possibility of a legal recourse can lead to the parties using consensual justice. If it is not possible to resolve the dispute, one of the parties can always ask a judge to decide. Introducing a legal recourse can then encourage the other party, who was previously against negotiation, to accept negotiation.
  
• Once a legal recourse has been started, it is never too late to consider other methods based on consensual justice. Similarly, if a person begins to settle a dispute without going to court, she can always change her mind and start a legal recourse.

In the end, what’s important is to look at the pros and cons of each method before deciding on a strategy to resolve the dispute.

Restorative justice is used mainly in criminal matters. Its goal is to make amends for a harm caused by one person to another person.

For example, restorative justice can see to it that an adolescent reimburses the cost of a broken window to an owner or cleans the graffiti he painted on the wall of a building, without having a judge ordering him to do so. The rules of criminal justice for adolescents favour these types of solutions called extrajudicial measures or sanctions, which can sometimes replace going to court. To find out more, read our Infosheet called Extrajudicial measures: Keeping adolescents out of court.

Restorative justice can also include a meeting, supervised by a mediator, between a victim and an aggressor or even a group of victims and aggressors. During these meetings, people express their feelings, as respectfully as possible, about the offence that they committed or that they suffered from.

Such a meeting can allow a victim to express himself about the aggression and the aggressor. Restorative justice also allows the aggressor to become aware of the harm she caused and to take responsibility for her actions. For the aggressor and the victim, restorative justice can be an opportunity to communicate and to make peace with the past. Restorative justice can also help prevent crime. However, these meetings don’t always suit everyone and every situation, and they are never obligatory.