ARTICLE
8 January 2025

Restorative Justice Practices: Additional Tools For The Chief Diversity Officer's Toolbox

KL
Kramer Levin Naftalis & Frankel LLP

Contributor

Kramer Levin provides its clients proactive, creative and pragmatic solutions that address today’s most challenging legal issues. The firm is headquartered in New York with offices in Silicon Valley and Washington, DC, and fosters a strong culture of involvement in public and community service. For more information, visit www.kramerlevin.com
Attacks against diversity, equity, and inclusion (DEI) measures and initiatives have intensified over the last couple of years.
United States Corporate/Commercial Law

Attacks against diversity, equity, and inclusion (DEI) measures and initiatives have intensified over the last couple of years. Responding to often misunderstood concepts of DEI can be a time-intensive distraction from the work chief diversity officers (CDOs) are charged with: recommending strategies and measures to develop fair recruitment, retention and promotion policies and practices, creating more inclusive workplaces, and cultivating community. While the CDO's job has never been easy, the impact of ongoing national and international events is straining the ties that bind our communities together to the point of fraying. At this time of great stress and resistance, restorative justice practices have much to offer the CDO: a powerful tool to support professional inclusion efforts and a pathway to greater personal self-care and reflection.

Restorative Justice and Circle Practice

An alternative to penal law, restorative justice addresses harm and conflict by prioritizing the needs of those who have been harmed and ensuring that their voices inform a plan to repair the harm they've experienced. Restorative justice also asks the community to reflect on its collective responsibility to address harm experienced by its members, including by establishing a set of community agreements aimed at avoiding future harm. These circles are rooted in ancient, indigenous traditions from around the world; for centuries most cultures have used traditions that involve gathering together to resolve problems and concerns and strengthen community bonds. Beginning in the 1970s, restorative justice practices were more widely adopted in Western countries (along with the victims' rights movement and alternative dispute resolution) as an alternative approach to the judicial process.

There are many different practices that fall under the category of restorative justice; however, this article focuses specifically on circle practices. Restorative circles, or "peacemaking circles," can be a form of conflict resolution: the goal is reconciliation, and the process emphasizes community needs for accountability and dialogue. When used to address individual or community harm, circles bring together the person or people who have been harmed, the person(s) responsible for the harm, and the greater community to have a conversation about what happened and determine what is needed to move forward with a plan that is responsive to the harmed party's needs for restoration. Participants in this process sit in a circle (which can be replicated in virtual meetings) and usually use a talking piece that is passed from person to person. Each individual speaks without interruption, and the physical shape of the circle helps to disrupt power dynamics; in a circle, there is no "head of the table" or preferred seat. This fosters a sense of shared responsibility, regardless of the hierarchy outside of the circle. The circle process provides an opportunity for all participants to be heard and for harmed parties to articulate what they need to repair their harm. All parties agree upon the actions that must be taken to successfully resolve the conflict. This generally results in much greater satisfaction with both the process and the outcome than is found with more punitive processes.

Circle Practice in a Law Firm Setting: A New Approach

While restorative circles are certainly effective in resolving conflicts, there are many other applications that law firm CDOs can and should explore. Restorative circles may not be intuitive to law firm culture, as it is a different means of communication and feedback, and we love precedent! However, they can be extremely effective for team building, strategizing, and goal setting.

A circle helps improve inclusion by creating a structured, respectful space for everyone to be heard. This is especially important for community members who feel marginalized within law firms. Circles encourage solution-focused dialogue, providing an opportunity for colleagues who may generally hold opposing views to experience working together and actively listening to one another. Since all participants share their views and perspectives, the diversity of thought expressed leads to more robust and inclusive solutions. In short, the process of arriving at a decision or agreement is valued as highly as the decision or agreement itself.

Self-Care for CDOs

As mentioned at the outset, the escalating backlash against DEI initiatives and current national and global events have made the CDO's work even more challenging. In the spirit of putting your own oxygen mask on first, a CDO should strongly consider engaging in restorative practices for themselves prior to using it in their professional work. By engaging with lines of inquiry designed to encourage personal reflection, they can better understand their own needs and determine how they might best address them. It also provides an opportunity to reflect upon areas where they want to grow professionally. Importantly, since a commitment to inclusive practices demands a lifetime of practice, these reflections offer them an opportunity to identify and hold themselves accountable to ongoing education. (To assist with this practice, I recommend "The Wisdom of the Circle: A Restorative Circle Practitioner's Deck," which is suitable for individual use and group practice.)

CDOs can also hold circles with trusted colleagues or mentors, with the goal of creating a space to process and manage workplace and profession stressors. Circles could be convened for groups of diversity professionals to strengthen these networks, generate new ideas for the profession, and provide opportunities to practice the "practice." Together with other self-care measures, circle practice may also help prevent burnout for professionals who play such a central role in recommending practices that sustain all members of their law firm community.

Facilitating a Circle

It is important to recognize that circle practice has been studied and written about by numerous authors; this article is not a substitute for thoughtfully engaging with the available literature. (As a starting point, I recommend reading "The Little Book of Circle Processes: A New Approach to Peacemaking," by Kay Pranis.) With that disclaimer firmly in place, we can explore the practical application of circles in the law firm context.

Imagine a CDO who, as part of their firm's inclusion efforts, wants to co-create an allyship program or set of behaviors for their law firm. A circle can be a very useful tool for advancing this goal. In this scenario, the CDO should invite a cross-section of the firm to participate, making sure the list of participants is as inclusive as possible. The objective of the circle would be to engage participants in a dialogue about what allyship looks like in action and how they can each contribute to a more inclusive environment. At the start of the circle process, participants will collectively establish ground rules for their time together (e.g., refrain from interrupting another participant, responding to the facilitator's questions, not debating the validity of another's perspective, speaking from personal experience only, etc.). This could be done by asking each participant to share what they need in order to speak honestly and authentically within the circle. As the circle facilitator, the CDO will next ask each participant a series of questions (it is important to note that a participant has the freedom to "pass" on responding to any question). The facilitator may start by asking what allyship means in their professional lives or a question that elicits personal reflection and sharing. Follow-up questions could include: asking participants to share examples of allyship they've witnessed within the firm or other professional setting, where they personally felt they needed support and none was offered, what obstacles or fears keep participants from showing up as allies themselves, or what support they need in order to serve as an ally. Subsequent questions could focus on specific ways participants can act as allies within the firm. The facilitator will synthesize the emerging ideas, and the group would then work together to draft an action plan. Each participant is invited to commit to a specific action they will take to practice allyship and support the implementation of a firm-wide plan.

After the circle, and with the consent of the participants, the CDO might share key takeaways (without individual attribution) with other firm stakeholders, so that the greater community benefits from the practice. They should also follow up with the circle participants to support them in keeping the commitments made. This circle is one way to make sure that inclusion efforts are happening at both the "grassroots" level and the institutional level.

Although this article focuses on how a chief diversity officer can engage the circle practice, this modality is an option for any law firm decision-making process. For example, a firm may use a circle to develop a working definition of its ideal law student applicant. In this scenario, the circle facilitator may open the circle by having each participant (practice group leaders, legal talent, senior partners, diversity professionals) reflect upon what the firm's stated values mean to them. Then, each participant could briefly share their thoughts on what attributes they value in potential recruits (e.g., work ethic, academic excellence, leadership skills, previous work experience, etc.) and how those attributes align with the firm's values. A second round of sharing might focus on how the firm might balance what appear to be competing characteristics (further conversation may reveal that the characteristics are actually aligned). The circle facilitator would guide the dialogue towards finding common themes and values. This process of gaining consensus ensures that all perspectives are valued and that the process of determining the firm's ideal law student applicant is transparent and inclusive. The circle might close with a reflection on the process and the agreements reached.

Final Thoughts

Whether the purpose of the circle is conflict resolution, effectively communicating across differences, creating a new strategic plan, or addressing systemic issues, law firm community circles can help employees communicate their needs and concerns. There can be as many as five different generations working at a firm, each with their own communication styles, belief systems, and behaviors. Circle practice can help close communication gaps and create spaces of mutual understanding and respect. Additionally, community circles can be beneficial in situations where a law firm has experienced something challenging or stressful, creating space for colleagues to come together in the aftermath to discuss their feelings and what support they need moving forward. The circles help both individuals and teams feel safe, secure, heard, and valued. The practice empowers members of the firm, helping them to realize that they themselves have the skills and tools needed to solve problems.

Clear communication is critical for an inclusive and engaged work environment. Cultural shifts prompted by the COVID-19 pandemic are still being navigated, and national and global events have introduced new complexity to inclusive community-building efforts. CDOs who expand their toolbox to include restorative practices can experience a dual benefit: a transformative new practice in their professional life, and a pathway to greater personal growth and resilience. The collective wisdom that surfaces in circles often leads to creative solutions and innovative ideas. We all benefit – clients, colleagues, and our communities – when everyone feels supported and engaged.

Originally published by The Association of Law Firm Diversity Professionals on Jan. 2, 2025

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More