The Irenic Lawyer

Mr Joe Harman1

1Federal Circuit Court Of Australia, Parramatta, Australia

In his notes for a law lecture in 1850 Abraham Lincoln opined “Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man”.

The message intended by Lincoln would appear lost in the present age when Court lists are clogged, governments struggle with funding to address the volume of work before Courts and litigious culture dominates.

This paper will explore the role of the lawyer as “peacemaker” particularly in the family law jurisdiction where the best interests of the child are the paramount consideration.  It will be argued that the duties of the lawyer to the Court, the rule of law and the administration of justice suggest if not compel an irenic rather than polemic approach towards disputes guiding everything from interactions with clients to the modalities of dispute resolution employed and the conduct of litigation.

Drawing upon jurisprudence and research regarding client attitudes to lawyers, the dynamics of conflict and conflict resolution and professional standards and duties this paper will argue that non-litigious and non-adversarial practice are not only viable and attractive means of legal practice but are required if not compelled if the interests of client, the community and ultimately justice are to be met.  In doing so this paper will explore how polemicism and adversarial practice are the antithesis of justice and how a culture of irenic practice would better meet the needs of the disadvantaged and vulnerable.

Biography:

Judge Harman was appointed to the Federal Circuit Court of Australia in June 2010. Prior to joining the Court Judge Harman worked in private practice as a lawyer worked extensively as a mediator/FDRP in private and community (FRC) practice. Judge Harman has also lectured at the University of Western Sydney in family law and mediation.  Judge Harman received a NSW Premier’s Stop Domestic Violence award in 2005, was a finalist for the Australian Human Rights Commission Law Award in 2013 and the Law Foundation Justice Medal in 2015 and in 2015 received a Resolution Institute award for promotion of excellence in dispute resolution.

 

About the Association

The Australasian Institute of Judicial Administration (AIJA) is a research and educational institute associated with Monash University. It is funded by the Law, Crime and Community Safety Council (LCCSC) and also from subscription income from its membership.

The principal objectives of the Institute include research into judicial administration and the development and conduct of educational programmes for judicial officers, court administrators and members of the legal profession in relation to court administration and judicial systems.

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