Judicial Stress and Wellbeing

Carly Schrever1,2

1 Judicial Wellbeing Project Advisor, Judicial College of Victoria, 223 William Street, Melbourne, VIC, 3000, carly.schrever@judicialcollege.vic.edu.au;
2  MPsych(Clinical) / PhD Candidate (Topic: ‘Stress and wellbeing among Australian judicial officers’), University of Melbourne, cschrever@student.unimelb.edu.au

Judicial officers, by virtue of their position within a stress-prone legal profession, and the nature of judicial work, are uniquely placed in a crossfire of risk factors for stress.  Given the importance of judicial decisions in people’s lives, and the pivotal role they play in our democratic system, judicial stress is more than a personal concern.  It is well known that stress negatively affects the physical and psychological wellbeing of the person experiencing it, however when that person is in a position of responsibility and authority, their stress can have a broader impact.  It can impact behaviour, by undermining our capacities for emotion regulation and impulse control.  It can also impact decision making, by compromising deliberative and objective decision making faculties, potentially leading to more conservative and stereotypical decisions.  Acknowledging the reality of stress and building the capacity to manage it effectively are important aspects of judging well. This is particularly true for judicial officers seeking to adopt a therapeutic jurisprudence, problem-solving or solution-focused approach – as we cannot effectively encourage therapeutic change in others if we ourselves are struggling with the cognitive and emotional limitations of psychological ill-health, stress and burnout.  This presentation will review the literature on judicial stress, discuss the psychology of stress as it relates to traditional judicial work and to non-adversarial approaches, and explore a range of evidence-based strategies for managing stress and promoting judicial wellbeing.

Biography:

Carly Schrever is a lawyer, provisional clinical psychologist, and PhD candidate.  Carly graduated from the Melbourne Law School in 2004.  She completed her articles of clerkship at Allens Arthur Robinson (now Allens Linklaters) and was admitted to the legal profession in April 2005.  Carly then worked at the Supreme Court of Victoria as Associate to the Honourable Justice David Habersberger, before commencing in the Education Team at the Judicial College of Victoria.  While at the College, Carly designed and implemented numerous judicial education programs relating to judicial wellbeing and skills development.

In 2013, Carly completed her Honours level qualification in Psychology at the University of Melbourne.  She was awarded the Australian Psychological Society Prize for the highest overall Honours marks, and the Dwight Final Assessment Prize for the best thesis.  She is currently undertaking her combined Master of Psychology (Clinical) / PhD at the University of Melbourne, in which she is researching the sources and nature of work-related stress among Australian judicial officers.  Carly is also employed by the Judicial College of Victoria as the Judicial Wellbeing Project Advisor, managing the development of a judicial wellbeing web-resource, and advising on other judicial wellbeing projects.

Interdisciplinary Collaborations – how legal and social services are working together

Jennifer Donovan1

1 University of Melbourne, 161 Barry Street, Carlton, Victoria, 3053, jdonovan@student.unimelb.edu.au

Interdisciplinary collaborations between legal and social services, outside the court setting, have emerged as a growing framework for assisting clients with high degrees of disadvantage, vulnerability and complexity.  While some individual programs have been working this way for well over twenty-five years, as a more recent phenomenon these programs can now be found spreading across Australia, focusing on a wide variety of social and legal issues.

This paper is a presentation of research currently mapping the nature of these collaborations in Australia and exploring the influence collaborating professions are having on each other’s practice.  While legal and social service professions in these programs would seem to have a natural synergy focused on the needs of shared clients, research examining which professions are involved, how they collaborate and the practice being delivered within programs, remains limited.

The research presented is a mixed methods project using online surveys and semi-structured interviews to explore these programs and the experiences of staff within them. Preliminary results suggest there are a diverse range of collaborative programs currently on offer including those in both public and private organisations, those located in human service and legal settings, and those tackling areas from migration to mental health, family separation and domestic violence.  Preliminary results also suggest that the different professions are having different experiences of collaboration, with legal staff more likely to regard the experience positively and as having a clear influence on their practice, while social service staff are more likely to have mixed experiences and view their practice as less changed by the collaboration.

Biography:

Jennifer is a lawyer and social worker, and is now undertaking her PhD with the Department of Social Work at the University of Melbourne.  Jennifer’s areas of research interest include collaborations between the social service and legal sectors, the roles played by social workers in therapeutic jurisprudence and the influence of legal frameworks on social work practice. She also teaches in department’s Law & Ethics, Program Evaluation and Social Policy courses.

Adversary, Team Player or Collaborator? A Human Rights Analysis the Right to Counsel in Non-Adversarial Justice

Jennifer Black1

1 Principal Solicitor, Fitzroy Legal Service, Fitzroy Town Hall, PO Box 297, Fitzroy, Vic, 3065, jblack@fitzroy-legal.org.au

Problem solving courts, therapeutic jurisprudence and non-adversarial justice are no longer fledgling developments, but highly influential concepts in justice practice and policy. Their emergence reflects a frustration with traditional criminal justice structures, the focus on procedural rights rather then outcomes, and proof rather than truth. Puzzlingly there has been little consideration of human rights within this developing sphere. This presentation will examine the human right to counsel within a therapeutic model using the Neighbourhood Justice Centre (NJC) as a case study. The NJC provides a multi-jurisdictional court, a range of specialist treatment and support services, and crime prevention and community capacity building to the City of Yarra in Melbourne. This presentation draws on the author’s experience working as a criminal law practitioner at the NJC, utilising human rights principles to examine the challenges faced by legal practitioners in non-adversarial models.

Biography:

Jennifer Black is the Principal Solicitor at Fitzroy Legal Service. Prior to this role Jennifer was a senior lawyer based at the Neighbourhood Justice Centre (NJC). Jennifer is an Accredited Criminal Law Specialist with the Law Institute of Victoria. She is currently undertaking a Master of Laws through the University of Melbourne and has an interest in human rights and international law, as these practice areas relate to criminal law.

Performing Judicial Authority: Engagement and Ethics

Kathy Mack1, Sharyn Roach Anleu 2

1 School of Law, Judicial Research Project, Flinders University, GPO Box 2100, Adelaide SA 5001, judicial.research@flinders.edu.au

2 School of Social & Policy Studies, Judicial Research Project, Flinders University, GPO Box 2100, Adelaide SA 5001, judicial.research@flinders.edu.au

In an adversarial legal system, the judicial officer is expected to perform authority by displaying a particular form of detached impartiality, participating actively only when parties require a decision, ruling or order, which is determined by applying law to facts.  Legal rules are impersonal, and impartiality is the central judicial value, buttressed by norms of judicial restraint and passivity. Yet, applying legal rules and procedures requires judicial authority to be performed.  Judicial officers are the crucial link between formal abstract law, the legal institution of the court, and the everyday practical tasks in the courtroom, often in face-to-face interaction with court users.  Developments such as therapeutic jurisprudence and social psychological understandings of procedural justice, requiring some judicial engagement with court participants, are beginning to inform this everyday judicial work. 

Especially in lower courts, judging is more social, more interactive, and more varied than conventionally understood, as investigated in detail in our recent book:  Performing Judicial Authority in the Lower Courts (Palgrave, 2017). This engagement can require greater attention to emotions, different judicial emotional capacities and more emotion work, including management of the judicial officer’s own emotions or those of others.

However, as this research shows, the ethical norms regulating judicial performance do not adequately address the intersection between emotion and the practical demands of everyday judicial work.  While there is some implicit recognition of emotion in the emphasis placed on interactional qualities such as patience, courtesy, temperament, or detachment, the place of emotion in judicial work is rarely directly addressed. General or abstract ethical statements do not provide sufficient guidance for the actual emotional demands and experiences faced by judicial officers in their everyday work.

 

Biography:

Kathy Mack is Emerita Professor of Law at Flinders University, Adelaide. She is the author of a monograph, book chapters and articles on alternative dispute resolution, and articles on legal education and evidence. With her co-author, Sharyn Roach Anleu, she has also conducted empirical research involving plea negotiations.

Sharyn Roach Anleu is Matthew Flinders Distinguished Professor in the School of Social and Policy Studies at Flinders University, Adelaide, and a Fellow of the Australian Academy of the Social Sciences in Australia. She has published widely on sociology of law, deviance and social control, and gender in the legal profession.

Navigating Proceedings through the Multi-Door Court house: Moving beyond an ‘adversarial’ or ‘non-adversarial’ characterisation

Justice B J Preston, Chief Judge1Joanne Gray, Registrar2

1 Land and Environment Court of NSW, GPO Box 3565 Sydney, NSW, 2001

2 Land and Environment Court of NSW, GPO Box 3565 Sydney, NSW, 2001

The rise of non-adversarial justice has been achieved through the use of active and differential case management by courts to diagnose disputes, refer them to an appropriate dispute resolution process, and to ensure that the way in which that dispute resolution process is managed is effective and fair.

Historically, however, the traditional adversarial approach to the conduct of litigation has been characterised by the control of court proceedings by practitioners. The representatives decide for themselves how the case will be brought before the Court, the early mentions are simply ‘call-overs’ adjourned until fixed for hearing, and the parties arrive at the trial with their own battle lines drawn and every possible issue, however remote, prepared for ventilation.

The first step in moving away from this traditional adversarial approach has been to recognise that the nature of court proceedings does not inherently necessitate them being adversarial. Second, individual proceedings need not and should not be characterised as either ‘adversarial’ or ‘non-adversarial’ at any particular stage. To do so stigmatises those proceedings rather than recognising that at each stage of the proceedings steps can be taken by the court that are non-adversarial in nature.

Third, in moving away from the traditional approach, the modern court recognises that there are many different ways of resolving proceedings. The concept of a court offering a range of dispute resolution services has been described as there being a ‘multi-door’ courthouse. In navigating proceedings through a multi-door courthouse, the court uses active and differential case management to determine the best way that the proceedings ought to progress. In so determining, various approaches to non-adversarial dispute resolution can be explored. These include both alternate dispute resolution methods, such as conciliation and mediation, as well as non-adversarial approaches to the conduct of the hearing itself, including through the giving of concurrent evidence, conducting a hearing outside of a court room, hearing from persons who are not parties to the proceedings, and the court having a more active inquisitive role throughout the conduct of the hearing.

Fourth, the introduction of uniform civil procedure rules has allowed the courts to use increasingly active case management and to move toward a more inquisitorial approach to the conduct of hearings, including directions hearings, whilst also maintaining procedural fairness. To achieve non-adversarial justice, early mentions have moved away from being a ‘call-over’ to a hearing on the appropriate directions, enabling the court to determine what the issues are and to exercise control over what documents or evidence the parties seek to rely on. Further, all evidence is filed and served well in advance of the hearing, and various techniques can be used to ensure that the evidence is discussed between experts prior to the hearing.

The move away from the traditional adversarial approach toward non-adversarial techniques in a multi-door courthouse therefore increases efficiency and promotes fairness, ensuring that the dispute is met with the appropriate dispute resolution process and that the chosen process is managed in a way that avoids the ills of the adversarial approach. This paper will examine the role of active and differential case management in achieving this, the various non-adversarial processes that can result, and how this is used in the Land and Environment Court in environmental and planning disputes.

Biography

Ms Joanne Gray was appointed as the Registrar of the Land and Environment Court of NSW on 1 October 2010, having acted in the position since January 2009. Ms Gray has a Bachelor of Laws with first class honours and a Bachelor of Science (Psychology). Ms Gray is also a nationally accredited mediator. She has a background in registry and case management in NSW courts, commencing with her employment in Local Courts in 2005 and subsequent employment as a Deputy Registrar and Senior Deputy Registrar of the Supreme Court.

As the Director and Registrar, Ms Gray has the overall responsibility for the administration of the Land and Environment Court and also exercises judicial powers by delegation, including conducting directions hearings and hearing and disposing of motions and costs hearings. The Registrar also conducts mediations and conciliation conferences, and presents regularly on practice and procedure in the Land and Environment Court. Ms Gray has recently been appointed as a Commissioner of the Court, commencing on 18 April 2017.

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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