Blogging the Non-Adversarial Justice Conference Day 2

Last night we had the conference dinner. It was held at the Melbourne Aquarium on the Yarra River in central Melbourne. On one side we could see the river and on the other a large aquarium full of beautiful fish. At least we were not located near a shark tank! The President of the Court of Appeal of Victoria gave an interesting and entertaining after dinner speech, talking, amongst other things, about the role of therapeutic jurisprudence in an appeal court.

It is now day 2 of the conference. I will again blog the day. As with yesterday’s blog, here is my exclusion clause: what follows is a selection of thoughts and impressions rather than a comprehensive coverage of what each speaker says.

Our first session is a plenary session. I have the delightful privilege of introducing Professor Carrie Menkel-Meadow and Professor Susan Daicoff. Professor Menkel-Meadow asked what was the first dispute resolution process in history. In the Judaic-Christian tradition there is the example of King Solomon dealing with the issue of who was the mother of a particular baby. Was he a third party dispute resolver or mediator? From here she gave a brief historical overview of the evolution of dispute resolution.

She mentioned that there is a cycle in human affairs where human beings set up dispute resolution processes, become unhappy about them and then introduce new ones – before they become dissatisfied with those and the cycle continues.

Professor Menkel-Meadow referred to Eleanor Roosevelt’s statement that justice is not where one side wins, it is where two sides. That statement is in the UK’s new Supreme Court building. But now virtually every dispute in the world involves more than two sides. Disputes don’t sit in one point in time and nor is there a single truth. These are some of the matters that challenge adversarial processes that seek to resolve disputes. There are also more international dimensions of dispute emerging. As a result, we need a range of processes to resolve disputes.

She related a powerful story written by Mark Twain about a man who went into a church and observed the people praying for victory in a war. The man asked them to imagine that on the other side of the border or the other side of the ocean there was a church where people were praying for victory – ie, death, injury – against them.

According to Professor Menkel-Meadow, courts do not have remedial imagination – except for problem-solving courts and the like. They are focused on determining facts and outcomes. Our modern world needs a range of creative and flexible solutions to address legal problems – something the traditional court processes cannot do.

Susan Daicoff described herself as a commentator on what she calls the comprehensive law movement. She referred to common problems identified by the different vectors of the movement – the personal problems lawyers have been facing and the failures of the legal system. One in five lawyers suffer from mental health or substance abuse issues – a higher incidence than population norms. She referred to the high emphasis on adversarial process instruction in law schools as compared to classes on non-adversarial processes. She noted that lawyer personality traits are suited to the adversarial process – such as competitiveness.

She said there is a great opportunity within the profession to use new ways of resolving legal problems.

Professor Daicoff recounted attending a TJ conference in the late 1990s where exponents from the different vectors of comprehensive law movement were speaking where she noted that this was a movement. David Wexler encouraged her to develop a synthesis of these approaches. The result was her work on the comprehensive law movement. The vectors try to optimise wellbeing (for participants, judges, lawyers etc) (psychological, moral wellbeing etc); and involve rights plus (legal rights and also needs, goals, rights, communities etc). She noted that some of the vectors are more lens based – how one looks at legal problems (eg, TJ- look therapeutically) – and others are more process based (eg RJ, transformative mediation).

She suggested that the millennial generation have characteristics that are attuned to working within the comprehensive law movement – such as more collaborative approaches, working in teams, being sceptical about institutions.

After morning tea – another Earl Grey and a rather nice slice – I attended an inspiring session on problem-solving courts. Peggy Hora, an international treasure of the problem-solving court and comprehensive law movements, gave a wonderful overview of the development and principles of problem-solving courts in the US and internationally. She is unfailingly inspiring whenever she speaks.

The New South Wales Drug Court senior judge, Roger Dive spoke about the flexible jurisdiction he exercises that allows him to deal with all criminal matters involving a particular offender holistically. Close monitoring of participants is a key part of his work. He keeps notes of important personal information concerning participants that they communicate to him so that he can effectively interact with them when they come before him on regular appearances. He does not give participants who have used drugs a hard time if they have used and admits use – the judge will explore with the relevant participant what went wrong and sanctions will be imposed. If they do not admit their use then the judge takes a harder approach.
He emphasised the importance of judges having a number of tools in the toolbox to draw on in judging. The judge also emphasised the importance of the role of the court team and the need to support and nourish each team member and their individual expertise. In his approach he seeks to empower participants to take control over their lives rather than having to rely on judges and others to tell them what to do. Interestingly he described how participants move from external sources of motivation to stop using to internal sources of motivation – they no longer wish to use.

Astrid Birgden, psychologist and warden of the Compulsory Drug Treatment Centre in New South Wales, spoke about individualised justice in problem-solving courts. She mentioned the limitation of risk management approaches to reducing re-offending and the desirability of recognising the individuality of the individual – the need to be “me” – and how the good lives approach to rehabilitation can be used to promote that “me” factor by promoting the individual’s ability to live what they and the community would see to be a good life in the community. She stressed that the approach should be evidence based and ethical.

After lunch I attended a facilitated discussion about mainstreaming solution-focused judging, This approach, based on therapeutic jurisprudence, seeks to empower and help motivate and support parties – particularly defendants in criminal processes to address underlying issues. Many of those in the audience were judicial officers or were otherwise associated with the courts. There was a useful discussion and some important examples of using solution-focused principles in mainstream courts. I think the session was also useful in moving the solution-focused judging enterprise forward.

The final session of the day that I attended was a debate between Professor Tania Sourdin (Queensland) (affirmative) and Judge Hugh Landerkin from Canada (negative) as to whether judges should act as mediators. Grossly over simplifying the issues some of the arguments favour were: there is the authority of the judicial officer being used to promote resolution, a promotion of an access to justice, mitigating adversarialism and the skills that judges can bring to the task. Judge Landerkin gave a fascinating account of his journey to using judicial settlement conferences. He also raised issues against judicial mediation – that courts should use open processes in order to uphold the rule of law and that judicial mediation processes violate that principle. A facilitative style of mediation can allow for the different strands of a problem to be teased out, but evaluative forms of mediation – used in judicial settlement conferences – does not allow that to happen.

The judge referred to the principle that when people’s behaviour is observed, it changes. In judicial settlement conferences, the mere physical presence of the judicial officer will affect the parties and the conference. I suppose that principle applies in solution-focused judging. But is it an appropriate influence to have in settlement conferences? If, as the judge suggested for the purpose of argument, all participants must regard one another as a colleague for facilitative mediation to occur, how can a judicial officer be the mediator?

Today, like yesterday, has been a rush and an exciting experience – so many people to catch up with, so many to listen to, so many interesting ideas to digest. The feast of experience continues tomorrow.