Enhancing Justice: Therapeutic Jurisprudence, Restorative Justice, and Collaborative Law

2. Therapeutic Jurisprudence, Restorative Justice and Collaborative Law

3. TherapeuticJurisprudence • "Therapeutic jurisprudence proposes that we use the tools of the behavioural sciences to study the therapeutic and anti-therapeutic impact of the law, and that we think creatively about improving the therapeutic functioning of the law without violating other important values, such as . . . due process concerns” • Winick, Bruce J. and Wexler, David B. (eds) (2003) Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts Durham, NC: Carolina Academic Press

4. TherapeuticJurisprudence • “Therapeutic jurisprudence asks all judges to recognize that they can be important agents of change, and to acknowledge that their words, actions, and demeanour will invariably have an impact on the people who come before them in the courtroom.” • Goldberg, Susan. (2005) "Judging for the 21st Century: A Problem-Solving Approach." National Judicial Institute.

5. TherapeuticJurisprudence • “A therapeutic jurisprudence approach can also involve the courts or judicial officers working more closely with human services personnel to address various social and personal problems, including drug-abuse and addictions, homelessness, unemployment, and lack of work-related and parenting skills. This demonstrates the legal system’s interest in and engagement with the antecedent causes of crime or the behaviour that resulted in a person’s court appearance.” • Roach Anleu, Sharyn and Mack, Kathy (2007) 'Australian Magistrates, Therapeutic Jurisprudence and Social Change', Transforming Legal Processes in Court and Beyond: A Collection of Refereed Papers from the 3rd International Conference on Therapeutic Jurisprudence, Greg Reinhardt and Andrew Cannon (eds), Perth, Western Australia, 7-9 June 2006, 173-86

6. Restorative Justice • “Restorative justice is a term which has recently emerged to refer to a range of informal justice practices designed to require offenders to take responsibility for their wrongdoing and to meet the needs of affected victims and communities. It refers to the restoration of victims, offenders and communities and emphasises the repair of harm resulting from the crime, including harm to relationships.” • Strang, Heather (2001) Restorative justice programs in Australia : a report to the Criminology Research Council

7. Restorative Justice • “Restorative Justice is a process that advocates that the people most effective at finding a solution to a problem are the people who are most directly impacted by the problem. • Opportunities are created for those involved in a conflict to work together to understand, clarify, resolve the incident and work together towards repairing the harm caused....” • Centre for Restorative Justice website. Accessed August 2010 http://www.restorativejustice.com.au/about_what_is.php

8. Collaborative Law: A Definition. • “Collaborative law is a method of dispute resolution whereby the parties and their lawyers contract to settle a matter without involving the court... • The parties and their lawyers sign a contract not to litigate • The collaborative process proceeds by way of face-to-face discussions between the parties and their lawyers and, where appropriate, other professionals • The parties and their lawyers focus on the parties’ respective interests rather than what a court might order if the matter proceeded to litigation.” • Collaborative Practice In Family Law. A report to the Attorney-General prepared by • the Family Law Council. Commonwealth of Australia 2007.

9. Benefits of Collaborative Law • Provides a formal structure in which positive child-focused communications are modelled by the advisers • Provides legal advocacy support during collaboration • Removes the immediate threat of litigation • Encourages parties to develop a trusting alliance for their future parenting • Directly involves the parties in negotiations based on interests and not positions

10. Benefits of Collaborative Law – cont. • Aims to achieve results that meet the needs of each of the parties and their children • Minimises the time that lawyers must spend in correspondence with each other • Utilises the expertise of independent experts including child specialists and financial advisers outside of the adversarial system. • Collaborative Practice In Family Law. A report to the Attorney-General prepared by • the Family Law Council. Commonwealth of Australia 2007.

11. Drawbacks of Collaborative Law (CL) in situations of Family Violence • The CL process may result in excessive pressure to settle • Practicing CL without a full understanding of the power dynamics that operate within situations of family violence may place the victim at further risk

12. Collaborative Law • “... collaborative law is generally considered inappropriate in cases that involve incidents of family violence, mental illness, extreme power imbalance or substance abuse.” • Collaborative Practice In Family Law. A report to the Attorney-General prepared by the Family Law Council. Commonwealth of Australia 2007(p 55)

13. Collaborative Law • The following factors should be taken into account when assessing suitability: • Whether a client’s objectives are consistent with the principles of collaborative practice • The bona fides of the client; for example, whether the client is seeking to use collaborative practice to gain an advantage, however slight, in anticipated litigation

14. Collaborative Law • Assessing Suitability – cont. • Problematic factors, including mental health issues, substance abuse and family violence • The lawyers’ ability and preparedness to handle the matter • The availability of outside resources, including experts and allied professionals, to supplement the lawyers’ skills in resolving the dispute..Collaborative Practice In Family Law. A report to the Attorney-General prepared by the Family Law Council. Commonwealth of Australia 2007 (p. 74)