Lawyers as Peacemakers, Lawyers as Changemakers: Values-based Practices

Kim Wright

Cutting Edge Law, 1335 Paseo Del Pueblo Sur, #253, Taos, NM, 87571  USA.  Jkimwright@gmail.com

Workshop: 

From Conscious Contracts to Earth Jurisprudence to Sharing Law and a dozen other approaches, many new models of law practice are emerging.  These new models reflect the changing values of society and of the practitioners who choose to step out of the traditional ways of doing things.

In this workshop, we will first explore the emerging models.  Then, we will delve into the framework of purpose and values which often invisibly shape our journeys and bring it into awareness.  This exploration will help lawyers and other professionals to:

  • Align your interactions with others, and with the legal system, to your most important values and principles. Lawyers, learn how to deliver these innovative tools to your clients and bring them value in new and expansive ways;
  • Uncover the core principles that connect you to your stakeholders;
  • Use those principles as a lighthouse that can guide you through decision-making and disruptive events;
  • Transform events of conflict from challenges that threaten to destroy relationships to opportunities to build and strengthen them;
  • Access courage to be a changemaker.

This workshop is a shorter version of the day-long programs that J. Kim Wright presents around the world. It was developed in conjunction with her two American Bar Association books:  Lawyers as Peacemakers, Practicing Holistic, Problem-solving Law (ABA, 2010, Flagship book and best-seller) and Lawyers as Changemakers, The Global Integrative Law Movement (ABA, 2016, Flagship book).

Biography:

Kim Wright is a trailblazer in the area of integrative law, which the American Bar Association has said just might be the “next huge wave in the legal profession.” She is the editor and publisher of CuttingEdgeLaw.com, a treasure trove of multimedia materials about conscious innovators in law.

Kim is the author Lawyers as Peacemakers, Practicing Holistic, Problem-Solving Law [ABA Publishing, April, 2010]. Her second book, Lawyers as Changemakers, The Global Integrative Law Movement was published in 2016.

In 2009, the ABA named Kim as a “Legal Rebels, finding new ways to practice law, represent their clients, adjudicate cases and train the next generation of lawyers.”

Kim’s mission is to  find, connect, support, and showcase those who are working toward manifesting a new legal system, based on peacemaking, problem-solving, and healing conflicts.  She leads continuing education programs and offers coaching and consulting for lawyers around the world.

Kim Wright has a Juris Doctor from the University of Florida, Levin College of Law and a Bachelor of Arts from Warren Wilson College.  She maintains an active law license in North Carolina.  Since 2008, she has been a full-time nomad.

Non-Adversarial Approaches to Domestic Violence: Interrogating How Theory and Practice Can Be Better Integrated

Judge Hayman,1 Rachael Field2

1 The Honourable Judge Eugene Hyman (Ret.), Superior Court of California, County of Santa Clara

2 Dr Rachael Field, Professor of Law, Bond Law Faculty, Bond University.

Increasingly a paradigm shift from a punitive, retributive model to one of rehabilitation and healing is evidenced by the introduction of specialized domestic violence (DV) courts. These courts adopt a range of therapeutic justice principles in the use of non-adversarial approaches to DV matters. As an alternative to, and in combination with formal prosecution, the use of non-adversarial approaches to DV has the potential to deliver justice to victims and families in a comprehensive and healing manner, lay the foundation for a durable solution to changing violent behaviour, and reduce the prospect of recidivism in a possibly more efficient cost-effective manner. While the advantages are numerous, there are also caveats.

In this paper we evaluate the advantages and caveats through a critical lens against a rigorous set of criteria. We argue that it is important to ensure that practise developments are informed by well-established, evidence based theory.

This paper explores why it is vital to acknowledge the safety of victims as a priority, and achieve best practice in relation to risk and safety assessments, restraining orders, and victim services. Mechanisms that hold the offender accountable – such as monitoring compliance with orders, judicial or other supervision, and the presence of consequences for non-compliance – are also considered. We explain the need for the development of a comprehensive screening protocol that excludes egregious re-offenders but identifies offenders who are both willing and capable of reform. We argue for additional training for first responders such as police and community groups, as well as for judges and program facilitators. And we explore the need for the accessibility of information given that DV cases often present in many courts such as civil, family, criminal and probate courts. In the development of more appropriate approaches to DV, practises that allow processes and protocols to be perceived as procedurally fair to all parties are necessary.

Biography:

Judge Eugene M Hyman is retired from the Superior Court of California, County of Santa Clara (San Jose) where, for 20 years, he presided over cases in the criminal, civil, probate, family, and delinquency divisions of the court. He has presided over an adult domestic violence court and in 1999 presided over the first juvenile domestic violence and family violence court in the United States. Judge Hyman has published articles on issues surrounding domestic violence in the criminal and family courts–especially with co-occurring issues of substance abuse and mental health. He has a special interest in domestic violence as it affects children in the home and in the family court setting. He has special understanding of sexual abuse, stalking, and strangulation, as they intersect with domestic violence. Judge Hyman taught as a Lecturer in Law at the Santa Clara University School of Law for 21 years including a course “Domestic Violence Law Seminar”. In 2008, Judge Hyman was honored with the United Nations Public Service Award.

Rachael joined Bond Law School as a Professor in 2016. Her areas of research expertise include dispute resolution, family law and domestic violence and legal education. Rachael has received a number of national teaching awards including a national citation in 2008, a national teaching fellowship in 2010 (through which she developed curriculum practices for the promotion of law student well-being) and a national teaching excellence award in 2014.  Rachael is the founder of the Australian Wellness Network for Law, which is now expanding internationally.  She is also co-founder of the Australian Dispute Resolution Research Network. She has a portfolio of more than 70 scholarly publications, and is co-author of four books. Rachael’s community service has been focussed on volunteering on the management committee of Women’s Legal Service, Brisbane since 1993. She has been president of the Service since 2004. In 2013 Rachael was named Queensland Woman Lawyer of the Year

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.

The Singapore Community Justice and Tribunal Division Experience

Miss Li Tien Wong, Mr Tuck Leong Ow Yong1

1State Courts, Singapore, Singapore, Singapore

The paper describes Community Justice and Tribunal Division (CJTD) experience in developing a community justice strategy encompassing both adversarial and non-adversarial justice tools in resolving disputes, and working with stakeholders to build a cohesive society.

The CJTD is the newest justice division in the Singapore State Courts and oversees both community and relationship cases. A unique feature of the CJTD is that the judges will deal with both civil and criminal process components unlike other justice divisions.

The CJTD consists of the Small Claims Tribunals (SCT), the Community Disputes Resolution Tribunals (CDRT) and also handles applications under the Protection from Harassment Act (POHA).

The SCT provides a speedy and inexpensive process to handle small claims arising from disputes in contract for goods or services and residential tenancies. The claim will proceed for adjudication if there is no settlement by the SCT mediators. The SCT is not bound by strict rules of evidence or by normal court procedures, and there is no legal representation to keep costs to a minimum.

The CDRT is the last resort to deal with intractable neighbourly dispute cases. Mediation plays a critical role, and the CDRT may direct litigants to undergo counselling or mediation. The CDRT may also make special directions or impose a compliance bond or impose criminal sanctions or exclusion from residence orders.

The CJTD judges hear POHA applications under the civil court process and may grant a protection order to protect persons against harassment and unlawful stalking. There is also a simple self-help process for a subject of a falsehood to apply for the falsehood to be set right and the true facts brought out clearly.

The paper will also examine how CJTD has established working relationships with community stakeholders to offer therapeutic counselling services to address the underlying issues affecting the litigants.

Biography:

Ow Yong Tuck Leong is a District Judge in the Community Justice and Tribunals Division of the State Courts. Mr Ow Yong graduated from the National University of Singapore in 1998 and was admitted as an advocate and solicitor of the Supreme Court in 1999. He joined the Singapore Legal Service in 2000 and has served in the Registry of Companies and Businesses, the Attorney-General’s Chamber and the Competition Commission of Singapore before his appointment in the State Courts in 2011.

The meaning and application of ‘therapeutic’ in the Alcohol and Other Drug Courts of New Zealand

Katey Thom1, Stella Black2

1 University of Auckland, Private Bag 92019, Auckland 1142, k.thom@auckland.ac.nz

2 University of Auckland, Private Bag 92019, Auckland 1142, stella.black@auckland.ac.nz

This paper will explore the meaning of ‘therapeutic’ in the Alcohol and Other Drug Treatment Court (AODT Court) pilots of Aotearoa, New Zealand. Drawing on qualitative research that included courtroom observation (over 200 hours), interviews with the court team professionals (n=25), and document analysis, the presentation will explore the four strands – Law, Lore, Recovery and Drug Court Best Practice – that we argue are woven together to produce a therapeutic philosophy of the AODT Court. Understanding the ‘therapeutic’ as a practical accomplishment in the AODT Court, we will illustrate the weaving of these strands with examples grounded in the everyday reality of professionals as they interact within the courtroom. We will then consider how the therapeutic philosophy adopted in AODT Court can be understood within the context of international conceptualisations of therapeutic jurisprudence, as well as the ways in which the AODTCs may be developing organically to reflect the unique cultural, legal, and clinical practices of Aotearoa. The presentation will conclude by considering some of the challenges faced by the professional team that have the potential to disrupt the production of the ‘therapeutic’ in the AODT Court.

Biography:

Katey Thom is a Senior Research Fellow within the Faculty of Medical and Health Sciences, University of Auckland. With a background in sociology and health sciences, most of her research has focused on the topic of social justice within mental health and addictions. Her research to date has covered the application of mental health law and human rights, and more recently, the use of therapeutic approaches in the criminal justice system of Aotearoa New Zealand.

The State Courts Centre for Dispute Resolution Experience: Towards appropriate mediation styles and strategies in resolving civil, community and criminal disputes

Miss Lih Jeng Low1

1State Courts. Singapore, Singapore, Singapore

The paper examines how the establishment of the State Courts Centre for Dispute Resolution (SCCDR) in March 2015 consolidated the different ADR services offered by separate divisions in the State Courts of Singapore. It examines the framework within which ADR services are offered to parties who are in varying contractual and/or personal relationships. It discusses how adopting an integrated and holistic approach results in the expedient and efficient resolution of disputes that involve aspects of the law and cut across the civil-criminal divide.

SCCDR offers ADR in civil cases, Magistrate’s complaints, applications under the Prevention of Harassment Act and Community Disputes Resolution Act.

Parties are in wide-ranging contractual and/or personal relationships such as business associates, co-workers, family members, friends, acquaintances and neighbours. Parties could be represented by lawyers but there is an increasing number of litigants-in-person. Cases are of small value not exceeding S$250,000 (US$180,000).

The framework for SCCDR’s ADR services is as follows:

  • ADR is for cases that have already been filed in the State Courts.
  1. ADR is used as part of case management to facilitate the expeditious disposal of cases and costs savings for parties.
  2. Half-day sessions are scheduled in keeping with Court ADR’s provision of dispute resolution options with limited judicial resources.

In adopting an integrated and holistic approach to resolving conflicts that involve different aspects of the law and cut across the civil-criminal divide, SCCDR:

  1. Adopts different forms of ADR (including neutral evaluation, collaborative ADR) and different styles of mediation (evaluative, facilitative and transformative).
  2. Invests in continuing training and accreditation of Judge Mediators.
  3. Engages volunteer mediators.
  4. Partners ADR stakeholders in Singapore to increase awareness of ADR

Biography:

Lih Jeng has served as a District Judge in the State Courts since 2010 and, since 2013, at the Centre for Dispute Resolution (‘SCCDR’), providing dispute resolution in civil, criminal and community justice matters.

She is an accredited mediator with

  1. Centre for Effective Dispute Resolution (CEDR), UK
  2. Eagles Mediation & Counselling Centre (EMCC), Singapore
  3. International Mediation Institute (IMI)
  4. School of Psychotherapy and Psychology, Regent’s University London, UK
  5. Singapore International Mediation Institute (SIMI)
  6. Singapore Mediation Centre (SMC)

Beyond her judicial duties, Lih Jeng is the editor of SCCDR’s e-bulletin. She is leading SCCDR’s joint research project with the Business School of Nanyang Technological University to study the impact of parties’ cultures on their preferences at mediation. She also conducts training sessions for Judges and Court Administrators at SCCDR and is leading SCCDR’s initiative to develop a Court-Annexed Mediators Programme.

Outside of her professional duties, from 2010-2016, Lih Jeng served as Chairman of the Asia Pacific (AP) Region of the World Association of Girl Guides and Girl Scouts (WAGGGS) and a member of WAGGGS’ World Board. During her tenure, the AP Region grew by 1 million girls to become WAGGGS’ largest Region with more than 3.5 million girls and young women.

In recognition of her outstanding service and contribution to the AP Region, she was conferred the highest Award by

  1. The Bharat Scouts and Guides of India (Silver Elephant Award)
  2. The Sri Lanka Girl Guides Association (Twin Swans Award)
  3. The Girl Guides Association of Malaysia (Honorary Star)
  4. International Scout Guide Fellowship (Honorary Fellow)

Criminal Mediation In Singapore – Tailoring The Process To The Parties

Mr Weng Kuan Eugene Teo1

1State Courts, Singapore, Singapore, Singapore

This paper seeks to shed some light on a mediation process in Singapore which has not received much review: i.e. Criminal Mediations. The paper traces its history, development, rationale, and the legal framework which has since been built around it. The paper then examines the nature of Mediation and the rather unique advantages which it offers in the context of a criminal case. It also examines some of its limitations before suggesting a particular mapping of case types to the mediation techniques and tools to be adopted. This mapping of the cases appears to also have been implicitly acknowledged as well in other jurisdictions.

Biography:

Eugene Teo Weng Kuan is a District Judge in the Criminal Justice Division of the State Courts of Singapore. He was appointed to this position in 2002. Prior to this, he was working as a Deputy Public Prosecutor at the Attorney-General’s Chambers. He currently presides as a trial judge over a broad range of criminal offence types. He also has duties as a Procedural Judge in overseeing the timely disposition of pending criminal cases.

A Neighbourhood Justice Centre for Western Australia? – A Feasibility Study

Associate Professor Sarah Murray1

1 University of Western Australia Law School, M253, 35 Stirling Hwy, Crawley WA 6009, sarah.murray@uwa.edu.au

Neighbourhood Justice Centres (NJCs) are community-based, problem-solving justice institutions, designed to create better outcomes for individuals while also reducing social disadvantage, non-compliance with court orders and imprisonment rates. They do this by creating a ‘one-stop’ justice hub that integrates the local community, service providers and justice personnel. While Australia’s sole NJC site is in Collingwood, Victoria, the feasibility of a demonstration project in Western Australia is the subject of an 18 month study being undertaken by the UWA Law School, Anglicare WA and the Community Legal Centres Association (WA).

This presentation will detail the current study and its early findings. Working with a cross-disciplinary advisory group, the project will assess the extent to which the justice environment in Western Australia differs from the Collingwood NJC, the costs, benefits and possible locations for such a project and how justice service provision might be more sensitive to the needs and interests of Aboriginal communities. Ultimately, the project will make recommendations about the prospects of a Western Australian demonstration project and the extent to which court-based service provision can be expanded with or without a NJC pilot.

Biography:

Dr Murray is an Associate Professor at the University of Western Australia and teaches and researches in public law with key expertise in constitutional law, legal institutional change and less-adversarial reform. Her work is particularly focused on the way the legal institutions and court processes can change and adapt to meet social needs without compromising their institutional and constitutional legitimacy.  She completed her PhD at Monash University, in 2011 and her thesis was awarded the 2011 Mollie Holman Doctoral Medal for Law and was published as a monograph, “The Remaking of the Courts – Less-Adversarial Practice and the Constitutional Role of the Judiciary in Australia” (Federation Press, 2014). She has particular interest in Neighbourhood Justice Courts and was awarded the 2015 Institute of Advanced Studies Distinguished UWA Early Career Research Fellow for her work in this space.

Non-Adversarial Justice in Mixed and Hybrid Systems of Criminal Justice in South America: Victim Rights in Brazil

Tyrone Kirchengast1

1 UNSW Law, University of New South Wales, NSW 2052. Email: t.kirchengast@unsw.edu.au

Brazil is a federal republic constituted by twenty-seven states, including the federal district of Brasilia. Brazilian law has been influenced by various legal traditions, including Portuguese, French, Italian and German civil law, such that it now represents a system of mixed or hybrid legal tradition. The criminal justice system of Brazil borrows from the continental European tradition but their legal system has also been substantially developed through the ratification of human rights instruments and norms. Access to justice for victims and accused remains a significant challenge, however, in the context of a justice system which provides rights and powers but offers limited welfare and support to access those rights, at least evenly across the population. Nevertheless, trial rights for victims in Brazil extend far beyond those offered in adversarial or even some Continental European jurisdictions. Victims now enjoy the right to counsel; to submit new evidence at trial, including non-binding material; to directly question witnesses; to propose an amended charge where a matter proceeds before a jury; to make submissions and engage in oral argument across all phases through to sentencing; to provide reasons in favour of an appeal, or respond to the defence’s request to appeal; to file interlocutory or supplementary appeals; to make an open or closing statement; and to seek reparations or compensation during sentencing. This paper considers the role of the victim in the criminal justice process of Brazil and demonstrates how lessons may be learnt on the empowerment of victims from the quasi-adversarial, mixed and hybrid context of Brazil’s Southern justice process.

Biography:

Dr Tyrone Kirchengast is a Senior Lecturer in the Faculty of Law at UNSW, Australia. Tyrone is admitted as a legal practitioner of the Supreme Court of NSW and is a solicitor and barrister of the High Court of Australia. Tyrone’s principal teaching and research interests are in criminal law and procedure and his publications focus on the integration of victims in criminal law, comparative criminal justice and the development of institutions of criminal law and justice. He has published widely on the integration of victims in the criminal trial. His recent work examines the role of victim impact statements in homicide sentencing; the rise of private counsel for victims of crime; victim rights as human rights in international and domestic law; the emergence of enforceable victim rights; criminal law reform; and the normative aspects of adversarial justice.

Therapeutic Jurisprudence, Traditional Sentencing Theory and Behavioural Science: Towards Interdisciplinary Coherence

Michelle Edgely1

1   University of New England, School of Law, Armidale NSW 2351, medgely@une.edu.au 

Arguably, traditional sentencing theory reflects a balance between Kantian retributivism based on assumptions of formally equal rational and autonomous moral agents, and pragmatic Benthamite utilitarianism. Although both have normative underpinnings, arguably, these sentencing philosophies can lead to anormative sentencing practices because both theories arguably give insufficient attention to the humanity and moral interests of offenders.  In the sentencing context, TJ is a normative philosophy that urges legal actors and procedures to aim to minimise anti-therapeutic and maximise pro-therapeutic impacts on offenders when it can do so without compromising other important legal values. TJ has often drawn justification from utilitarian concerns, such as its potential to reduce recidivism; or from human rights concerns such as its tendency to better recognise the health and welfare needs of offenders.  While recognising the importance of these perspectives, this paper will argue that a significant strength of TJ is that it imbues legal practice with state-of-the-act behavioural science knowledge. The crime prevention function of sentencing is enhanced both theoretically and pragmatically, when law and practice is imbued with scientific knowledge drawn from evidence-based behavioural sciences. Given the complexities involved in understanding human behaviour and influencing behavioural change, such interdisciplinary knowledge helps the law move towards a more scientifically coherent praxis.

Biography:

Michelle Edgely is in the final stages of her PhD which examines the challenges involved in mainstreaming TJ in relation to mentally disordered offenders. She has published on TJ related issues and on other criminal procedure related issues.

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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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