Reflecting on the Practice of Non-adversarial Justice

The Honourable Wayne Martin AC1 

Chief Justice of Western Australia

In this paper, Chief Justice Martin will reflect on more than a decade of experience as a judge and head of jurisdiction to assess the contribution which the continued development of the principles of non-adversarial justice can make to the enhancement of the quality of justice delivered to the community.  In the context of the criminal justice system he will note the development and success of specialty or solution focused courts like drug courts and mental health courts in most jurisdictions, notwithstanding the prevailing culture of ‘popular punitivism’ which is a characteristic of contemporary justice policy in many jurisdictions.  In the context of the civil justice system, his paper will analyse ways in which the principles of non-adversarial justice can assist the early identification of the real issues in any case, and the preparation of the case for mediation or, if necessary, trial, as quickly, efficiently and cheaply as possible.

 

Restorative justice in family violence cases – where is New Zealand at?

Mr Jon Everest1

1 Ei.I Ltd – Growing out of Conflict, Wellington NZ

In New Zealand, Restorative Justice is now firmly embedded in pre-sentence criminal proceedings, particularly since the amendments to the Sentencing Act in 2014 which requires the Court to refer cases to restorative justice where an offender has pleaded guilty, where there is at least one identified victim, and where no restorative process has previously occurred in relation to the offending.

When Restorative Justice was initially piloted in NZ Courts in 2001, family violence and sexual offending were explicitly excluded. Over recent years this position has gradually changed and, in 2013, the New Zealand Ministry of Justice published restorative justice standards for family violence cases. Many RJ providers across New Zealand now contract to the Ministry to provide restorative justice services in these cases.

Jon will outline the evolution of the use of Restorative Justice in family violence cases in New Zealand and ask what has changed, what policy and safeguards are in place and what role can restorative justice play in addressing family violence? He will talk about some of the practical challenges of undertaking this work safely and what is needed to overcome these, including details of the systems being developed and evaluated in Porirua.

Jon’s first career was in policing in both the UK and Hong Kong where he served as an Inspector in the lead up to the 1997 handover. He completed his MSc at The Scarman Centre at Leicester University before specialising in conflict resolution as a mediator and restorative justice facilitator. He facilitated men’s stopping violence programmes for 6 years and has been providing court based restorative justice since 2003 and has been a lead trainer and assessor of restorative justice facilitators since 2008 for the NZ Ministry of Justice. He is accredited as both a family violence and sexual offending restorative justice facilitator, and as an FDR Provider. Jon is a Fellow and Director of the Resolution Institute and is Standards and Practice Consultant to the Diana Unwin Chair of Restorative Justice at Victoria University of Wellington.

 

Promoting More Therapeutic Forms of Alternative Dispute Resolution (ADR)

Tania Sourdin1

1 University of Newcastle Law School

ADR processes take many forms, they can be facilitative, advisory or adjudicative or even a blend of two or more forms. Some mimic more traditional court litigation processes and some focus on transformation and attitudinal or behavioural change. The range of dispute resolution options that are available and supported within the justice system can be linked to budgetary factors, system objectives and cultural features that and may not involve self determination or empowerment. This session explores the current ADR landscape in the context of the current definition of ‘justice’ in a civil setting and focusses on what might happen if social wellbeing or wellness was an objective of the civil justice system.

Comparing Mental Health Courts and involuntary Civil Commitment Courts

Professor Michael Perlin1

1 New York Law School

There is a developing robust literature about mental health courts (MHCrts) in the United States, and researchers have begun to focus on a broad range of empirical issues, such as the extent to which defendants are competent to waive their trial rights in such settings, the significance of diversion, etc. Also, advocates and other scholars have engaged in vigorous debates about the value of these courts, and the extent to which they do or do not preserve and protect due process and civil liberties values. Finally, those who locate themselves in the therapeutic jurisprudence (TJ) movement write frequently in support of them – and other problem-solving courts in general – as the best way to optimize TJ values in the court process. But there has been virtually nothing written from the perspective of what college professors always called “Compare and contrast.”

How are these MHCrts like or unlike the involuntary civil commitment courts which, for more than 40 years have adjudicated the question of whether individuals should or should not be committed involuntarily to inpatient psychiatric hospitals and which have been characterized as “greased runways” to such commitment? In the past, I have written about how, in these courses, adjudication takes place in “pitch darkness” in cases presided over by disinterested judges in which patients were often represented by even less-interested lawyers. We are still confronted with studies from the 1970s that showed that pro se patients had a better chance of release in some states than did those with assigned counsel. The disconnect between the prevailing “takes” on MHCrts and traditional civil commitment courts is profound. Yet, there has been virtually no commentary in the literature on that disconnect.

In this paper, I “compare and contrast” the two, and demonstrate that the reasons that the disconnect is so total is that the courts come from utterly dissonant perspectives. MHCrts – at least the successful ones – began with the conscious goal of promoting TJ in a way that did not impinge on civil liberties; traditional civil commitment courts grudgingly gave lip service to those Supreme Court cases that established baseline due process procedures in commitment cases, and generally have shown little interest in the nuances and complexities of the cases that are being decided, a lack of interest often reflected in the work done by lawyers in those cases. I conclude that attorneys must embrace the principles and tenets of therapeutic jurisprudence as a means of best ensuring the dignity of their clients and of maximizing the likelihood that voice, validation and voluntariness – the basic precepts of TJ – will be enhanced, and further believe that a rejection of the traditional civil commitment court model and an embrace of the modern mental health court model is the single best way that this dignity can be provided to litigants in these courts.

Challenges in Applying Non-Adversarial and Therapeutic Justice in Court Systems – The Israeli Example

Dr Karni Perlman1

1Striks School of Law, College of Management Academic Studies, , Israel

The lecture will address some prominent achievements and challenges involved in the implementation of a non-adversarial and therapeutic approach in judicial courts. It will do so based on the example of the Israeli court system. The discussion will focus on two projects: The first project is that of settlement judging, known in the Israeli court system as “Cross-Judicial Mediation”, which was implemented in both civil and criminal disputes; the second is that of an obligatory ADR meeting instituted by family dispute assistance units. A discussion of these projects may illuminate and support the implementation of Non-Adversarial and Therapeutic Justice in other court systems.

In the context of the first project, judge A would receive files that were under the responsibility of judge B, and conduct a special proceeding aimed at resolving the dispute by way of settlement. If the dispute wasn’t resolved by settlement it was transferred back to the original judge to handle and resolve with a binding verdict. The project began as a local initiative at some of the larger courts in Israel. It grew from the bottom up, as a consequence of the needs of the system and recognition of the advantages of the non-adversarial approach to the management and settlement of disputes. It was not directed by any top-down arrangements or guidelines, as it was not anchored in law. This fact gave rise to few problems concerning tensions between the needs of the system and the higher echelons charged with supervising it; between the desire to promote quality and efficiency in the management of disputes, which mainly came from the field, and the need to provide legally established regulation and uniform organizational guidelines. These tensions ultimately found expression in the objections of the Ombudsman of the Israeli judiciary to the project, which eventually led to the termination of the project in the hearing of civil disputes. A decision that was met with disapproval on the part the judges themselves. The Ombudsman’s decision to shut down the project in civil cases also gave rise to an anomaly, since it was contrary to a Supreme Court verdict that discussed the right of a victim to participate in a criminal judicial mediation proceeding, and in fact validated the project and outlined its characteristics in the area of severe criminal offenses.

The second project is an interesting and relatively new project being implemented in Israel’s civil and religious courts. In the context of this project, litigants involved in a family dispute are obliged to attend a preliminary meeting in order to receive information about alternative proceedings to adjudication, in the aim of settling the family dispute in a non-adversarial attitude. These meetings are attended by the therapeutic team present in special assistance units affiliated with these courts. A number of assistance units were established at religious courts for the specific purpose of implementing this law. The law’s original bill stated that four meetings may take place in order to help manage the dispute in a non-adversarial way, and that the parties will participate in these meetings without their attorneys. Moreover, regulations (though not the main law) that were instituted in order to promote the implementation of this project, provided the first legal basis in Israeli law for a collaborative divorce proceeding. In this context, tension arose between the desire to make beneficial use of the therapeutic approach in family disputes, and the position of the Israeli Bar Association which objected to meetings being held without the parties’ attorneys. Further tension was created by the clash between the State’s desire to promote an advanced conception of dispute resolution and the concern of the religious courts lest they lose their jurisdiction in matters of marriage and divorce. A specific lesson learned from this project was the possibility of practically promoting projects via secondary legislation as compared with the complications inherent in enacting laws via primary legislation.

Biography:

Dr. Karni Perlman is a Professor of Law and the head of the Non-Adversarial and Therapeutic Justice Center at the Striks School of Law, College of Management Academic Studies, Israel. Perlman’s book, “Conflict Resolution – Applying Non-Adversarial and Therapeutic Justice” has been recently published (in Hebrew). The book introduces important transformations that have taken place in the content of judges’ roles as dispute settlers and explains the nature of settlement judging and therapeutic judging. It also describes the change that is taking place in the content of lawyers’ roles.  Perlman is the author of various academic articles and other publications concerning Alternative Dispute Resolution, Therapeutic Jurisprudence, Settlement Judging and Judicial Dispute Resolution, Problem-Solver Lawyers, Procedural Justice, Mediation, Gender, Legal Education and more.  Perlman also teaches Conflict Resolution at Tel-Aviv University. She is the founder and former chairperson of the first Israel academic mediation center.  Perlman is a well-known mediator who actively mediates cases in the field of commercial and labor law. She serves as the coach of the Striks School of Law student team participating in an international competition of clients’ representation in mediation sessions.

Non-adversarial Criminal Justice in Australia: Surviving, Reviving and Thriving

Arie Freiberg1,

1 Faculty of Law, Monash University, Arie.Freiberg@monash.edu

This paper examines the history and evolution of problem-oriented courts and various intervention or diversion programs in a number of Australian jurisdictions.

Since their inception, not so many years ago, some courts and programs have survived changes of government, some have thrived and expanded, some have changed in form while others have been abolished and revived.

Criminal justice is a political exercise. As with other areas of contentious public policy, it is subject to changes in government, ideological fashions and budgetary constraints. Non-adversarial justice initiatives are particularly vulnerable in those jurisdictions where the penal climate is feverish and problem-oriented approaches to crime are regarded as being ‘soft on crime’, ineffective or too expensive.

Australian drug courts, mental health courts, indigenous courts, family violence courts and various court lists and programs continue to evolve in the light of practice, experience, internal and external evaluations and the accumulation of evidence locally and from overseas.

Through the use of case studies, this paper will discuss the dynamics of law reform in the sphere of non-adversarial criminal justice.

Biography:

Arie Freiberg is an Emeritus Professor at Monash University.  He was Dean of the Faculty of Law at Monash University between 2004 and 2012.  Before this, he was Dean of the Faculty of Arts at the University of Melbourne in 2003.  he was appointed to the Foundation Chair of Criminology at the University of Melbourne in 1991 where he served as Head of the Department of Criminology between January 1192 and June 2002.  In 2013 he was appointed an Emeritus Professor of the University.

His particular areas of expertise are sentencing, non-adversarial justice and regulation.  He has been a Visiting Scholar at Harvard Law School (2014) and Tel Aviv University (2008) and served as a consultant to the Federal, Victorian, South Australian and Western Australian governments on sentencing matters as well as the Australian and South African Law Reform Commissions.  He has also consulted for a number of state government agencies and departments on regulatory reform.

He has around 140 publications in areas such as sentencing, confiscation of proceeds of crime, tax compliance, corporate crime, juries, juvenile justice, sanctions, victimology, superannuation fraud, trust in criminal justice, commercial confidentiality in corrections, dangerous offenders, the role of emotion in criminal justice and public policy, drug courts, problem-oriented courts, non-adversarial justice and regulatory theory.

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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