Restorative Justice in Criminal Cases - Replacing the Adversarial Process as a “Zero-Sum Game”: Case Study of Victoria, Australia

The rigid adversarial model of criminal justice, often characterized as a “zero-sum game” where one side’s victory necessitates the other’s defeat, is facing growing dissatisfaction from lawyers and the public alike. The relentless pressure to win can contribute to negative emotional consequences for lawyers, including demoralization, anxiety, anger and sadness, potentially leading to marital issues, mental health problems, and substance abuse. Moreover, both the accused and the victim frequesntly express dissatisfaction with case outcome, especially when cases are resolved through plea bargain. Recognizing the need for a holistic and interdisciplinary approach to solving legal problems, a trend is emerging away from adversarialism and toward problem-oriented methods for resolving criminal cases. Drawing on the experience of Victoria, Australia, this article explores the potential of restorative and therapeutic justice techniques, which are rooted in the practices of tribal courts of indigenous Australians. It examines the evolving role of the lawyer as a mediator and conciliator within the framework of alternative dispute resolution.