Therapeutic Jurisprudence, Restorative Justice and

Collaborative Law

"Therapeutic jurisprudence proposes that we use the

tools of the behavioural sciences to study the

therapeutic and anti-therapeutic impact of the law, and

that we think creatively about improving the therapeutic

functioning of the law without violating other important

values, such as . . . due process concerns”

Winick, Bruce J. and Wexler, David B. (eds) (2003) Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts Durham, NC: Carolina Academic Press

Therapeutic Jurisprudence

“Therapeutic jurisprudence asks all judges to recognize

that they can be important agents of change, and to

acknowledge that their words, actions, and demeanour

will invariably have an impact on the people who come

before them in the courtroom.”

Goldberg, Susan. (2005) "Judging for the 21st Century: A Problem-Solving Approach." National Judicial Institute.

Therapeutic Jurisprudence

“A therapeutic jurisprudence approach can also involve the courts or judicial officers working more closely with human services personnel to address various social and personal problems, including drug-abuse and addictions, homelessness, unemployment, and lack of work-related and parenting skills. This demonstrates the legal system’s interest in and engagement with the antecedent causes of crime or the behaviour that resulted in a person’s court appearance.”

Roach Anleu, Sharyn and Mack, Kathy (2007) 'Australian Magistrates, Therapeutic Jurisprudence and Social Change', Transforming Legal Processes in Court and Beyond: A Collection of Refereed Papers from the 3rd International Conference on Therapeutic Jurisprudence, Greg Reinhardt and Andrew Cannon (eds), Perth, Western Australia, 7-9 June 2006, 173-86

Therapeutic Jurisprudence

“Restorative justice is a term which has recently

emerged to refer to a range of informal justice practices

designed to require offenders to take responsibility for

their wrongdoing and to meet the needs of affected

victims and communities. It refers to the restoration of

victims, offenders and communities and emphasises the

repair of harm resulting from the crime, including harm

to relationships.” Strang, Heather (2001) Restorative justice programs in Australia : a report to the Criminology Research Council

Restorative Justice

“Restorative Justice is a process that advocates that the

people most effective at finding a solution to a problem

are the people who are most directly impacted by the

problem.

Opportunities are created for those involved in a conflict

to work together to understand, clarify, resolve the

incident and work together towards repairing the harm

caused....”Centre for Restorative Justice website.

Accessed August 2010 http://www.restorativejustice.com.au/about_what_is.php

Restorative Justice

“Collaborative law is a method of dispute resolution whereby the parties and their lawyers contract to settle a matter without involving the court...

The parties and their lawyers sign a contract not to litigate

The collaborative process proceeds by way of face-to-face discussions between the parties and their lawyers and, where appropriate, other professionals

The parties and their lawyers focus on the parties’ respective interests rather than what a court might order if the matter proceeded to litigation.”

Collaborative Practice In Family Law. A report to the Attorney-General prepared by

the Family Law Council. Commonwealth of Australia 2007.

Collaborative Law: A Definition.

Provides a formal structure in which positive child-focused communications are modelled by the advisers

Provides legal advocacy support during collaboration

Removes the immediate threat of litigation

Encourages parties to develop a trusting alliance for their future parenting

Directly involves the parties in negotiations based on interests and not positions

Benefits of Collaborative Law

Aims to achieve results that meet the needs of each of the parties and their children

Minimises the time that lawyers must spend in correspondence with each other

Utilises the expertise of independent experts including child specialists and financial advisers outside of the adversarial system.Collaborative Practice In Family Law. A report to the Attorney-General prepared by

the Family Law Council. Commonwealth of Australia 2007.

Benefits of Collaborative Law – cont.

The CL process may result in excessive pressure to settle

Practicing CL without a full understanding of the power dynamics that operate within situations of family violence may place the victim at further risk

Drawbacks of Collaborative Law (CL) in situations of Family Violence

Collaborative Law

“... collaborative law is generally considered inappropriate in

cases that involve incidents of family violence, mental

illness, extreme power imbalance or substance abuse.”

Collaborative Practice In Family Law. A report to the Attorney-General prepared by the Family Law Council. Commonwealth of Australia 2007(p 55)

The following factors should be taken into account when assessing suitability:

Whether a client’s objectives are consistent with the principles of collaborative practice

The bona fides of the client; for example, whether the client is seeking to use collaborative practice to gain an advantage, however slight, in anticipated litigation

Collaborative Law

Assessing Suitability – cont.

Problematic factors, including mental health issues, substance abuse and family violence

The lawyers’ ability and preparedness to handle the matter

The availability of outside resources, including experts and allied professionals, to supplement the lawyers’ skills in resolving the dispute..

Collaborative Practice In Family Law. A report to the Attorney-General prepared by the Family Law Council. Commonwealth of Australia 2007 (p. 74)

Collaborative Law