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.

 

Offenders: A framework for managing risk and meeting needs

Dr Astrid Birgden1

1Consultant Forensic Psychologist, Just Forensic, Melbourne, Australia, 2Adjunct Clinical Associate Professor, Melbourne, Australia

Offenders have human rights. Therefore offenders are both rights-violators and rights-holders requiring legal actors as duty-bearers to balance managing offender risk with meeting offender need. From a therapeutic jurisprudence perspective, offender rights can be met through the law, correctional procedures, and the role of correctional staff as legal actors. In terms of the law, human rights are prescribed in various UN instruments but prisoners are rarely mentioned and both US and Australian courts have had a “hands-off” approach to prison administration. In terms of procedures, correctional staff are to adhere to the (outmoded) Standard Guidelines for Corrections in Australia 2004 but the stated goals are to be strived for rather than enforced.  In terms of roles, the message regarding the community-offender balance is subsequently confusing for correctional staff.

Dr Birgden will propose a framework that balances offender risks and needs using examples in policy development and service delivery in the correctional and forensic disability systems. The framework proposes a model that addresses both habilitation (in meeting needs) and rehabilitation (in managing risk). The framework proposes a set of guiding principles and practical strategies for assessing, treating, and managing offenders to enhance community reintegration.

Biography:

For 30 years Astrid has developed policy and managed service delivery to clients in problem solving courts (family violence court and drug court), disability services (forensic disability clients) and correctional services (sex offenders and drug-related offenders). Astrid established and managed the interagency Compulsory Drug Treatment Correctional Centre in Sydney, which is based on a humanistic model.  She has delivered training through the AIJA and AAT NJC regarding engaging defendant behaviour change from the bench. On an international basis, Astrid was involved in a torture prevention project with police and military in Sri Lanka and Nepal, delivered training regarding offender rehabilitation to prison officers and counsellors in St Kitts/Nevis in the Caribbean, designed a Community-Police Mediation Program in New Orleans, and was a moderator for a National Institute of Canada online course for judges regarding problem solving courts. Since 2000, Astrid’s work has been guided by the principles of therapeutic jurisprudence; in 2000 she studied with Professor David Wexler at the University of Puerto Rico and more recently has completed a Masters in Advanced Mental Disability Law through New York Law School. She is published in therapeutic jurisprudence, offender rehabilitation, and human rights.

Increasing Capacity to Cope : A Toolkit for lawyers of clients with a disability or experience of trauma.

Mr Daniel Toohey1

1University of Newcastle, Callaghan, Australia

This practical workshop will demonstrate some tools lawyers can use to provide better support for clients who are struggling to engage with legal processes due to a disability or experience of trauma.  It is expected these tools will help lawyers take a more therapeutic jurisprudence informed approach that cares about the psycho-social effects of legal processes and seeks to improve the wellbeing of clients.

Susan Daicoff refers to calls for lawyers to move from the ‘zealous advocate’ to ‘wise counsellor’: focussing more on telling the client the legal ‘truth’ they need to hear instead of aggressively carrying out the client’s wishes.  The aim is to have a better informed client who is empowered to make wise decisions with an understanding of wellbeing that recognises legal issues are only one part of the puzzle.

Lawyers of clients with disability or experience of trauma can need additional skills to improve the capacity of the client to cope with conflict and empower the client to make wise decisions in difficult circumstances.

This workshop demonstrates some tools lawyers can use to help clients who are struggling to cope with conflict, borrowing heavily from tools used successfully in the human services sector.  The workshop will:

  • Highlight aspects of legal processes that are commonly problematic for clients with disability or experience of trauma.
  • Describe a number of practices used within the human services sector to improve communication and wellbeing of clients with disability or experience of trauma.
  • Demonstrate through role-play some ways in which these tools can be used in legal practice.

Biography:

Daniel’s legal and counselling qualifications, and interest in resolving strata and community disputes let him to research towards preventative dispute resolution, and ultimately to work in community development with a focus on connecting people with a disability or experience of trauma into their local communities.  Having worked in tribunals in both Queensland and New South Wales, Daniel is now working as a legal practitioner and clinical teacher in the University of Newcastle’s free legal clinic.

Crossing the Ethical Line in Problem-Solving Courts

Peggy Fulton Hora1

1 Superior Court of California (Ret.) PO Box 5246, Walnut Creek CA 94596 peggyhora@sbcglobal.net

Canons of Ethics for judges and ethical rules for lawyers are based on an adversarial system.  Concepts such as a ban on ex parte communication are necessary and foundational in traditional courts but do they work in problem-solving courts?  If not, how do we assure that a litigant’s case is being handled fairly?  One of the hallmarks of problem-solving courts is the relationship and direct communication between the judge and a treatment court participant.  What are the dangers in such communications and how can we avoid them?

This presentation will rely on real-life ethical situations in which judges have acted outside their traditional role with critical consequences.  In the United States, drug court judges have been removed from office or forced to resign because of these breaches.  Some judges have been publicly reprimanded for their actions, however well intentioned, in problem-solving courts. We will examine the ethical rules, reasons for them and how, if in any way, they need to change for application in problem-solving courts.

Biography:

Judge Hora spent over 20 years on the bench in California.  She is an international leader in the solution-focused courts movement and has written comprehensively on justice issues.  She was a 2009-2010 Thinker in Residence appointed by the Premier of South Australia to study and make recommendations on the Australian justice system.  She was a visiting scholar at the University of Tasmania School of Law.

Her international work includes speaking at conferences worldwide and hands-on training on drug courts and therapeutic jurisprudence in Israel, the United Kingdom, Argentina, Chile, Bermuda, South Africa, Italy, Pakistan, France, Japan, Russia, The Netherlands, Canada, Australia and New Zealand.

She is a recipient of the Bernard S. Jefferson Judicial Education Award from the California Judges’ Association and winner of the Rose Bird Award from California Women Lawyers.  She was honored as Woman of the Year by the California legislature.

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.

Respect, Recovery and Risk: exploring the opportunities and challenges of a consumer-focused hearing in the civil and forensic jurisdictions of mental health tribunals

Anina Johnson1, Matthew Carroll2

1 Mental Health Review Tribunal, NSW, PO Box 2019, Boronia Park, NSW 2111

2 Matthew Carroll, Mental Health Tribunal, Vic Level 30, 570 Bourke St, Melbourne Victoria 3000 Australia

In each Australian jurisdiction mental health tribunals make orders that have a considerable impact on individual liberties.  Tribunals can order that individuals be detained in a mental health facility, required to take psychiatric medications, or be subject to electroconvulsive treatment.  Some mental health tribunals also have a forensic jurisdiction, which can have a significant impact on the lives of those found unfit to plead or not guilty of a criminal offence by reason of mental impairment.

The individuals who may be the subject of Tribunal orders are often highly vulnerable.  They can face significant barriers to their participation in Tribunal proceedings, by reason of illness, the impact of treatment or their broader circumstances.

Non-adversarial and solution-focused procedures are an invaluable tool in promoting genuine participation in hearings and decisions.  These approaches are also consistent with human rights and recovery principles which are embedded in modern mental health legislation.

Mental Health Tribunal decisions are made in the context of institutional and community attitudes to risk and to mental illness which can run counter to the implementation of a therapeutic approach.  Like many courts and tribunals, Mental Health Tribunals work in an environment where both the public agencies and the Tribunals are under resource limitations. Articulating non-adversarial and solution-focused processes and promoting adherence to them is an ongoing challenge, and can lead to conflict and resistance.

This workshop will explore these challenges by drawing on the distinct experiences and approaches of the NSW Mental Health Review Tribunal and Victorian Mental Health Tribunal, in exercising both civil and forensic jurisdictions.

Biography:

Anina was appointed as the Deputy President (Forensic) of the NSW Mental Health Review Tribunal in November 2012.

Anina sits regularly on Tribunal hearings in both its Forensic and Civil jurisdiction. She is also responsible for guiding the work of the Forensic Division, and works closely with mental health services, disability services, corrective services and other stakeholders on strategic issues in relation to forensic mental health.

Prior to her appointment to the Tribunal, Anina worked as a lawyer in the public sector for more than 15 years. She has a broad range of experience as both solicitor and advocate across areas including administrative law, criminal law, constitutional law, child protection and coronial inquiries.

Anina has published and presented in the areas of mental health, access to government documents and administrative law.  She is an active member of the NSW Executive of the Council of Australasian Tribunals, and is currently convenor of the COAT Conference organising committee.

Matthew is a lawyer with extensive experience in the field of human rights and anti-discrimination gained from roles in both Australia and overseas.  Matthew was appointed President of the Victorian Mental Health Review Board and Chairperson of the Psychosurgery Review Board in 2010.  Immediately prior to taking up these appointments he was manager of the Human Rights Unit at the Victorian Equal Opportunity & Human Rights Commission.

Upon commencement of Victoria’s current Mental Health Act on 1 July 2014 Matthew became President of the Mental Health Tribunal.

 

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.

Conference Managers

Please contact the team at Conference Design with any questions regarding the conference.
Photography Credits: Destination NSW, Paul Foley, Bridge Climb Sydney
© 2015 - 2016 Conference Design Pty Ltd