By Phillip Schaedler
In the 2014-15 school year there were 1,300 expulsions from Michigan schools. Greater than 50% of those expulsions lasted more than 180 calendar days, over half the school year. Students who are expelled or suspended often struggle academically, are more likely to drop out, get in trouble, and may eventually end up in prison. The Michigan Revised School Code sent the message that we didn’t care enough to teach our students to learn from their mistakes. A 2016 change in state law changed this detrimental approach. The amendment encourages schools to implement restorative practices, which can take various forms of conflict resolution, where the students involved (both offender and victim) talk through how their behavior affects others. MCL 380.1310c(2) provides that”...2) Restorative practices may include victim-offender conferences... that provide an opportunity for the offender to accept responsibility for the harm caused to those affected by the misconduct and to participate in setting consequences to repair the harm.”
Previously, the Michigan statute provided for mandatory, permanent expulsion under certain circumstances. Under the new state law, public school administrators and board of education trustees are now required to consider the following seven factors before expelling or suspending a student: student’s age, disciplinary history, disability, seriousness of behavior, whether the behavior posed a safety risk, whether restorative practices have been utilized and whether a lesser intervention would address the behavior. MCL 380.1310d(1). To comply, school systems throughout the state have implemented or are in the process of implementing restorative conferencing programs.
The restorative conference involves the use of scripted conferences to create the ideal setting for healthy human relationships. Conferencing requires the acknowledgement of wrongdoing on the part of the offender. It encourages free expression of affect (enjoyment/joy, interest/excitement, surprise/startle, shame/humiliation, distress/anguish, disgust, fear/terror, anger/rage dismell [a made-up word intended to describe a profound physical reaction such as to a putrid odor]) the biological basis for emotion and feelings. The conference allows expression of true feelings, while minimizing negative affect and maximizing positive affect. The essentials of the restorative conference script are as follows:
To respond to challenging behavior, the offender is asked:
1. What happened?
2. What were you thinking at the time?
3. What have you thought about since?
4. Who has been affected by what you have done? In what way?
5. What do you think you need to do to make things right?
To help those harmed by the other’s actions, we ask:
1. What did you think when you realized what had happened?
2. What impact has this incident had on you and others?
3. What has been the hardest thing for you?
4. What do you think needs to happen to make things right?
The conference script uses open ended questions that encourage the expression of all nine basic affects which exist in every human being. When a conference begins people feel negative emotions and express them. As the conference proceeds, they express their anger, distress, fear, and shame and these negative emotions are diminished through sharing. Their expression helps reduce their intensity. In a safe and structured environment created by strict adherence to the script, both victim and offender, along with their supporters, experience a transition characterized by the neutral affect of surprise. Participants begin to feel better about the situation and move toward an agreement phase expressing the positive affects of interest and enjoyment. MCL 320.1310c specifically provides that a restorative practices team, may require the pupil to do one or more of the following: apologize; participate in community service, restoration, or counseling; or pay restitution. The selected consequences shall be incorporated into an agreement that sets time limits for completion of the consequences and is signed by all participants.
As the conference progresses participants recognize the affects seen on other participant’s faces and tend to respond with the same affect. When one is angry, the other becomes angry. When one feels better and smiles so do others. This phenomenon is called “affective resonance” or empathy. Through affective resonance, conference participants make the emotional journey together, feeling each other’s feelings as they travel from anger and distress to interest and enjoyment.
The above description is a simplified description of a process that deals with the shame of wrongdoing in a fundamentally different way. Restorative practice provides meaningful reintegration rather than imposing traditional systems of punishment that humiliate without offering a way to make amends. Restorative practice avoids labeling which stigmatizes and alienates. The offender is not pushed out of the community but reintegrated into it thus avoiding isolation into a negative subculture outside the mainstream and prone to persistent trouble. Reintegration involves separating the deed from the doer so that society clearly disapproves of the inappropriate behavior, but acknowledges the intrinsic worth of the individual. The restorative process focuses on what the offender did and how that unacceptable behavior affected others not on whether the offender is a good or bad person.
Experience throughout the country, and in Michigan since the amendment of the school code, demonstrates that where administration and staff have embraced the concept of restorative conferencing, as well as other alternative dispute resolution techniques, such as restorative circles and peer to peer mediation, a dramatic reduction in suspensions, expulsions and aberrant behaviors occurs. Where time is taken to “teach” students expected behaviors and work with them in positive, encouraging and supportive ways, rather than subject them to traditional discipline, our communities reap enormous benefits. If this approach is used in the early elementary stage, even more dramatic results will occur over time.
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Phillip Schaedler is the founding member of Schaedler & Lacasse PC in Adrian, Michigan, he began his legal career with the defense litigation law firm of Janes & Hall P.C. in Mt. Pleasant, Michigan. In 1984, Schaedler began a 20 year career in the health care and insurance industry representing some of the nation’s leading community hospitals, health care systems and property and casualty insurance companies. Schaedler has been a national leader in the area of health care risk management and alternative risk finance. He has been on the forefront of the adoption and application of alternative dispute resolution techniques in the health care industry. Schaedler served on the board of the Family Mediation Council – Michigan for many years, and still serves on the State Bar of Michigan Alternative Dispute Resolution Council. Schaedler served on the State Bar of Michigan Character and Fitness Committee for District H and still serves on the Unauthorized Practice of Law Committee. Schaedler has been a member in good standing of the State Bar of Michigan for 35 years. He is a member the American Bar Association, the Federation of Defense and Corporate Council. He he is a member, fellow and former board member of the American Society of Health Care Risk Management and a certified professional healthcare risk manager. Schaedler’s practice in Adrian, Michigan, centers on alternative dispute resolution in both general civil and domestic relations cases. Schaedler is a trained practitioner in the areas of facilitative, and evaluative mediation and arbitration as well as collaborative law. Schaedler recently completed his certification as a practitioner and trainer in restorative circle and restorative conference at the International Institute for Restorative Practices. Schaedler is a charter member of Professional Resolution Experts of Michigan Inc. (PREMi, https://premiadr.com/).
