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.

 

Ensuring Meaningful Participation in Fair Mental Health Tribunal Hearings: The Critical Role of Legal Representatives

Fleur Beaupert1, Eleanore Fritze2

1 La Trobe Law School, La Trobe University, Kingsbury Drive Bundoora, Melbourne 3086 VIC, f.beaupert@latrobe.edu.au

2 Victoria Legal Aid, GPO Box 4380, Melbourne 3001, VIC, eleanore.fritze@vla.vic.gov.au

Mental health tribunals (MHTs) (or their equivalent) in each state and territory conduct hearings to determine whether people should receive forced mental health treatment through orders mandating either inpatient detention or compliance with a treatment regime in a community setting. MHT hearings embody certain aspects of ‘non-adversarial’ justice. While MHTs are bound by the rules of procedural fairness, they are not bound by the rules of evidence and are required to conduct their multi-disciplinary, quasi-inquisitorial hearings in an informal manner without undue technicality.

Legal representation for people subject to compulsory treatment is typically considered unnecessary by those administering the regimes because MHTs are seen as accessible, patient-centred and well-equipped to balance the range of interests at play. Some commentary has in fact suggested that lawyers may be detrimental to the process because of concerns they are overly adversarial, disrupt therapeutic relationships and can work against their clients’ ‘best interests’ by losing sight of health imperatives. Rates of legal representation at Australian MHT hearings, although varying between jurisdictions, are generally markedly low.

This paper draws on our experience of providing legal representation before the MHTs in NSW and Victoria, as well as current research into the impact of legal representation in this forum and – importantly – the views of people subject to compulsory treatment. As well as debunking some of the myths about the role of mental health lawyers, we argue that lawyers significantly enhance the fairness of hearings and the ability of patients to meaningfully participate in the process. By amplifying the individual’s voice and translating their wishes into legally recognised concepts, lawyers can engage in advocacy that is rigorous but nonetheless consistent with non-adversarial justice practices. This paper therefore supports the call for increased funding for legal representation at MHT hearings across Australia.

Biography:

Eleanore Fritze is a Melbourne-based lawyer who has worked in various roles at Victoria Legal Aid (VLA) for the last 11 years. She has a longstanding commitment to assisting people with disabilities to access and meaningfully participate in the justice system. In 2010, she was the inaugural duty lawyer in the ‘Assessment and Referral Court List’, a pilot therapeutic criminal court for people with various disabilities and complex needs. She is currently a senior lawyer in VLA’s Mental Health and Disability Law (MHDL) program, where she advises and advocates before courts and tribunals on behalf of people who are subject to detention, supervision, compulsory treatment or other orders restricting their rights under

Victoria’s mental health and disability laws. In addition, she regularly conducts training for lawyers, designs innovative community legal education projects and presents at conferences and events. In 2015, Eleanore undertook an international Churchill fellowship to explore how legal services can best protect the rights of people with disabilities who have been detained for compulsory treatment. She has previously worked as a personal carer and has also completed post‑graduate disability studies.

Fleur Beaupert is a lecturer at La Trobe Law School. Her current research focuses on civil mental health laws, legal capacity and the supervision and release of people found not guilty by reason of mental impairment. She was a doctoral candidate and researcher for an Australian Research Council funded project comparing the operation of Australian mental health tribunals. She has worked as a lawyer with NSW Legal Aid’s Mental Health Advocacy Service, providing legal advice and representation to people facing legal issues under mental health laws. Fleur is co-editor of a special issue of Law in Context, ‘Disability, Rights and Law Reform in Australia – Recent Trends’ (forthcoming 2017 – with Piers Gooding and Linda Steele).

In her previous role as senior research analyst with the NSW Ombudsman’s Police Team, she worked on legislative reviews of new police powers. She led the NSW Ombudsman’s review of search powers and offence provisions in the Restricted Premises Act 1943 (NSW).

How Lawyers can Capitalise on Procedural Justice: A Framework for Best Practice for the Non-adversarial Lawyer.

Jennifer C Hurley1

1 PhD Candidate, Graduate School of Business and Law, RMIT University. 

The psychology of procedural justice explains peoples’ reactions to court decision making processes.  Through fostering individuals’ subjective perceptions of fairness, court processes that apply procedural justice can improve the experiences of court users and their motivations to comply with decisions.  Significantly, an individual’s experience of procedural justice is not reliant on a favourable outcome. The elements that shape individuals’ judgments about their satisfaction with decision makers are voice, respect, neutrality and trust.  As key legal players in the court room, lawyers can either adopt or block innovative practices.  Adopting procedural justice requires an understanding of why individuals are concerned with the opportunity to tell their story and be heard, being treated with dignity and genuine concern, and the consistent application of legal principles by an authority figure who acts in good faith.  Non-adversarial lawyers wanting to improve their practice require this knowledge as well as advanced communication skills.  Procedural justice offers a robust framework on which to learn, develop and apply these skills.  One forum where procedural justice can offer the potential for lawyers to improve the experiences of court users is in problem-oriented courts.  Aimed at improving the well-being of individuals and communities, problem-oriented courts focus on individuals’ health and social problems to address their chronic criminal behaviour.  As part of the international movement to adopt therapeutic practices in mainstream courts, Australian lawyers need to understand how individuals can benefit from this non-adversarial approach to law.  Despite the growth in problem oriented practices in Australia there has been little focus on the potential for procedural justice to enhance court practices.  In particular there is little known about lawyers’ perceptions of procedural justice and its role in improving the experiences of court users.  The first stage in a PhD thesis, this paper explores the role of lawyers in promoting procedural justice in court.

 

Biography:

Jennifer Hurley is a PhD (Law) candidate. Her research will explore  lawyers’ perceptions of the impact of procedural justice on court users’ experiences. Jennifer has taught human rights law in the RMIT Juris Doctor.

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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