Blogging the Non-Adversarial Justice Conference

It is finally here – the first day of the sessions of the Non-Adversarial Justice: Implications for the Legal System and Society conference in Melbourne, Australia. After well over a year of work and planning for the conference we will see how it all turns out. It is exciting – seeing old friends from around the world, meeting new ones. Last night the Chief Magistrate of Victoria hosted a welcome reception, which was a wonderful event. It was good to be in the same room as so many people committed to more humane, psychologically optimal, comprehensive and inclusive approaches to resolving conflict. Leading lights in therapeutic jurisprudence, restorative justice, problem-solving courts, preventive law, ADR and holistic law are present. The possibility for cross-fertilisation is a wonderful opportunity in such a conference.

Below I give some thoughts and highlights from the first day of the conference. I cannot hope to be comprehensive. Some of the papers will be published by Monash University Law Review next year and will thereby be more easily accessible.

Professor Arie Freiberg, Dean of Law at Monash University, made some opening remarks before introducing the Attorney General of Victoria, who opened the conference. Arie spoke of the uniqueness of the conference, bringing together a large number of people, a large number of experts in the diverse vectors of non-adversarial justice or comprehensive law from around the world. The Attorney-General posed a challenge to the conference to formulate a description, a name that would place the myriad approaches to non-adversarial justice along side adversarial means of resolving disputes as equals. Then, he said, the concept of justice would “sing”.

John Braithwaite was the first speaker of the conference following the introductory remarks of Arie Freiberg and the introductory comments by the Attorney General. He of course is legendary as a great exponent of restorative justice, and responsive regulation and is the author of Crime, Shame and Reintegration. One of his key points was that adversarial approaches to justice should be a support for non-adversarial justice rather than the latter being simply an alternative to adversarial justice.

Professor Braithwaite focussed on using restorative approaches in addressing the causes of the global financial crisis and allied financial crises. He suggested that restorative justice conference style intervention by regulators could have been used with the US banks in relation to mortgage lending in risky cases at an early stage could have been an effective mechanism in preventing banks taking on further risky mortgages at an early stage. He suggested that this would be more effective than a punitive approach.

The Chief Justice of Victoria, Marilyn Warren spoke of the tensions between non-adversarial justice and preserving rule of law. She noted that in Victoria mediation has been a vehicle for non-adversarial justice coming into the court system, mainly in civil cases. Her Honour observed how therapeutic jurisprudence is applied in Victoria in the Magistrates Court, She gave examples of the therapeutic dialogue in the Koori Court (an Indigenous sentencing court), the comprehensive approach of the Collingwood Neighbourhood Justice Centre.

David Wexler’s address was on the progression of therapeutic jurisprudence from theory to practice and back again. However, he noted that therapeutic jurisprudence has never been a theory as such, but a field of inquiry, studying the effect of the law, its processes and actors on the wellbeing of those affected by it. He noted that therapeutic considerations can often be factored in without trumping other important justice system goals.

David spoke of the relationship between therapeutic jurisprudence and preventive law in providing an approach that identifies psycho-legal soft spots, where the application of the law and legal practice could provide a risk of emotional vulnerability that could be the emotional fall out of the law and should be addressed in legal practice. Robust counselling is a way in which a lawyer can respond to client needs in this situation.

David also pointed out that the power of a court to adjourn sentencing is a powerful mechanism to promote healing. This is part of the legal landscape that provides opportunities for the application of therapeutic jurisprudence. As part of this approach, although lawyers are not counsellors or social workers, at least they should be at least aware of treatment issues. This is also a matter for legal education to address in training future lawyers.

David referred to the comments by Justice Kevin Bell in the context of his review of the Victorian Civil and Administrative Tribunal that therapeutic jurisprudence occupies the spaces between legally binding laws. Within the boundaries of the black letter law, therapeutic jurisprudence operates.

Interestingly to me David referred to remarks made by Tom Barton concerning the accumulation of TJ practices and techniques arising out of TJ judges and lawyers applying the principles in individual cases that this development is a but like how the common law develops – by case examples. David said the need is for these examples to be disseminated more widely and to be used as examples in the teaching of the law.

Referring to David Yamada’s recent article on TJ and legal scholarship (see my previous blog entry) he emphasised the practical nature of TJ scholarship – short pithy articles that have practical application in judging and legal practice.

This morning the sessions were plenary sessions. This afternoon the hard choice came: how do I choose amongst six attractive sessions running at once? I chose a session on problem-solving courts first up. The Chief Magistrate of Victoria spoke about the innovations in the Magistrates Court of Victoria including an intensive problem-solving approach across its divisions. In criminal there is the role out of the Court Integrated Services Program that aims to divert offenders in the court system to a range of services that aim to address underlying issues holistically and also involves judicial supervision.

James Nolan spoke about his comparative research on problem-solving courts in the US and other common law jurisdictions. He drew on his recent book, Legal Accents, Legal Borrowing. I had previously read his book and was impressed by his earlier book on the American Drug Court movement, Reinventing Justice. It was interesting to hear how problem-solving courts have adapted to the local legal conditions, embodying features or emphases that are different from their cousins in the US. It illustrated to me that non-adversarial justice has very much a localised, applied element.

It has been a stimulating day thus far. Having revived myself with a cup of Earl Grey and a sweet treat for afternoon tea, we are into the last session. I have chosen to attend a session on non-adversarial justice. Bob Schopp raised the question whether non-adversarial justice can be practised within an adversarial court paradigm. Is it possible to treat like case alike in such cases? He provided a detailed analysis on the basis of substantive and procedural justice. He pointed out that at times the interests of the state and the interests of the defendant may converge, paving the way for a consideration of less adversarial processes.

The final speaker in the session was Professor Arie Freiberg. Arie spoke about post adversarial and post inquisitorial justice: transcending traditional penological paradigms. He spoke about how our legal systems are evolving beyond the adversarial paradigm and discussed the implications for this development. He noted that non-adversarial justice does not involve the evolution of common law systems into civil law systems.

Arie suggested that just as common law systems are developing into post-adversarial systems, perhaps civil law systems may evolve into post-inquisitorial systems. He described similar pressures for change in civil law systems as occur in many common law systems – including court delays, increased criminal justice costs, overcrowded prisons and devolving more and more power from the courts to the prosecution (such as in plea bargaining). Arie’s premise was that whatever is a good idea – such as TJ and RJ – will be appropriate for both civil and common law systems.

That’s it for the day. There is the conference dinner tonight, a relaxing way to finish a satisfying, non-adversarial day. I shall try to add further entries to this blog as the conference continues.