Therapeutic jurisprudence – not just for specialist courts?

Therapeutic jurisprudence is a term that is getting more and more air time as the legal profession looks at how courts can operate more effectively, how law can be used as a “healing agent” and how cycles of offending can be broken.

Professor Warren Brookbanks

Part of a wider “comprehensive” or “collaborative” law movement (including restorative justice), therapeutic jurisprudence is a concept you may hear in conjunction with specialist courts or forums such as the Alcohol and Other Drug Treatment Court (AODTC). Where you may not have expected the idea to crop up, however, is in more mainstream courts and areas of practice. But that is exactly where many proponents of therapeutic jurisprudence see it heading, arguing that its concepts can be applied more broadly.

Law News recently had the opportunity to speak with Professor Warren Brookbanks of Auckland University’s Faculty of Law (and General Editor of recently published title Therapeutic Jurisprudence: New Zealand Perspectives) about how the legal profession should be thinking about these questions and where else therapeutic jurisprudence methodologies could be brought into play.

The book’s discussion ranges from the use of therapeutic jurisprudence in employment dispute resolution to therapeutic judging in civil and commercial litigation. While the book notes that these “appear to represent an eclectic range of subjects”, they also “reflect the heterogeneous reach that therapeutic jurisprudence has now acquired as its approach continues to explore the outer parameters of the discipline of law … [and that] no area of law is beyond the scope of the inquisitive therapeutic jurisprudence lens”.

Professor Brookbanks considers that all players within the legal system have a role to play as part of changing the dynamic of how our courts operate to place more emphasis on healing and resolution. The book suggests that “the behaviour of lawyers and judges” is an important part of this process, and that “treating litigants with respect, aiming to be more transparent in decision-making and providing more effective assistance to litigants in person, might enhance judging practices and produce greater litigant satisfaction”.

“Therapeutic jurisprudence is about bringing about outcomes which are more psychologically beneficial,” says Professor Brookbanks. “Litigation can be very destructive or corrosive in terms of people’s relationships and even their mental health, but therapeutic jurisprudence argues that it does not need to be – it can be about producing helpful outcomes.”

Mainstreaming – civil/commercial litigation

He goes on, “While it can be more difficult to apply in a general court setting, increasingly there is a focus on mainstreaming therapeutic jurisprudence principles and bringing them into the general court structure,” and indeed this is one of the book’s main themes.

Chapter 11 (written by Jane Glover) suggests ways in which therapeutic jurisprudence theory can be applied to civil and commercial litigation and non-criminal judicial contexts, and how current judicial practices might be enhanced by the application of therapeutic jurisprudence principles, “through the medium of active listening and the use of emotional intelligence, … treating litigants with respect, aiming to be more transparent in decision-making and providing more effective assistance to litigants in person”.

Professor Brookbanks notes that there is also a growing emphasis on the role of apology in many different litigation contexts: “If someone is willing to apologise to me, in some kinds of litigation, it may be that that is what I am really seeking (along with reassurance that the issue will be resolved and it won’t happen again).”

He acknowledges that, obviously, in some areas, an adversarial approach will and should prevail (for example taxation disputes or complex commercial litigation), where the issues at stake “are not primarily about relationship but have to do with the application of a defined policy or a clear statutory mandate”. But in areas such as employment, family, or environmental law, he considers that there may be “deeply personal issues involved, and more scope for models which are consciously therapeutic”.

Corrections

Going beyond the immediate court system, another area where therapeutic jurisprudence principles can have relevance is in deciding how notions of care and protection can be given effect in corrections environments. The bleakness of such environments, where it is nevertheless expected that offenders rehabilitate and prepare for ultimate release, can lead to questions as to how hope can be restored and some kind of restoration achieved. As Professor Brookbanks comments:

“A challenge is to operationalise a notion of care to ensure that prisons remain, as they were intended to be, as places of punishment, not for punishment. The practice of therapeutic jurisprudence in this context would be aimed at minimising the conditions of stress on inmates, caused by the hostile prison environment, and facilitating programmes and activities designed to improve mental health and well-being, and offering a measure of hope for future re-connection with mainstream society.”

Interestingly, those comments were written before the recent furore surrounding the management of Mount Eden prison, and Professor Brookbanks stands by his words in light of those revelations.

“We have to ensure the safety and security of prison inmates in a humane environment. Prisons can be described as a ‘petri-dish of mental dysfunction’, with very vulnerable people at risk of further harm in an environment that is harsh, unforgiving and where everyone is ‘out for themselves’. The punishment for a crime is the loss of liberty that being locked up in prison entails – prisoners should not be subject to further punishment within the prison environment in the form of assault or abuse.”

Professor Brookbanks sees therapeutic jurisprudence as having a real role to play here – both in terms of rehabilitation inside prisons and how the release of prisoners back into the community is managed.

“Other jurisdictions have established ‘re-entry courts’ – problem-solving courts that differ from parole boards in that they work with offenders due to be released into the community – an active and positive attempt to address their needs and provide appropriate support and assistance in a structured environment. Some great work is already being done in some prison units, but such initiatives require resourcing and upskilling of prison officers to operate in a changed corrections environment.”

He is keen to stress that in this context, as elsewhere, therapeutic jurisprudence is not a “magic bullet” – rather, it can “assist in enabling us to re-vision the ways in which socio-legal problems can be approached”.

Where do lawyers fit in?

While some models drawing on therapeutic jurisprudence-type principles may anticipate a “reconstituted role for lawyers” (for example, the conscious attempts to “take lawyers out of the picture a bit” in the Family Dispute Resolution context), Professor Brookbanks does not consider that reducing lawyers’ roles is conducive, as a general rule, to effective justice, and would be loath to be seen as implying that lawyers should be removed from the scene of conflict altogether.

“While lawyers’ roles in areas like collaborative law, restorative justice and employment mediation may call for new skill sets and different emotional dispositions to conflict resolution, getting rid of lawyers is not generally a solution to legal problems,” he says.

“Lawyers who are well-informed and who understand that there may be other issues going on (whether relational or psychological) certainly have a role to play under the therapeutic jurisprudence approach – in working with clients, negotiating with officials in the legal system, and being part of any solution. It is more about ‘co-collaborating’ with clients to find a solution – rather than the lawyer simply taking the client’s instructions and the client sitting there passively receiving advice.

“It’s already happening in certain areas – therapeutic jurisprudence is really just feeding into the pattern of behaviour that engagement with the law should benefit people rather than leaving them feeling disenfranchised.”

In the case of the much-discussed (and somewhat thorny) issue of self-represented litigants, Professor Brookbanks suggests that therapeutic jurisprudence can lend some insights to this “very difficult issue”. “A great deal of grace and goodwill are needed in dealing with such litigants – the ability to represent yourself is a necessary right and if you choose to exercise it, so be it. However, it is not always done very well and we need to look at more effective mechanisms for managing it.”

While no clear solution to this problem has emerged either in New Zealand or elsewhere, he again considers that a reduced role for lawyers is not the answer: “[It] may prove to be both counter-productive and anti-therapeutic and involve the creation of new sets of inefficiencies and stresses for justice officials to manage.”

Moving forward

There is clearly a need for “realism” when considering how therapeutic jurisprudence methodologies and insights can impact on legal problem-solving in the various areas canvassed, and what kind of legal safeguards may be needed to ensure its appropriate operation within our legal system.

“Certainly the therapeutic jurisprudence model has been subject to critique,” says Professor Brookbanks. He cites amongst the common concerns raised about therapeutic jurisprudence that it compromises the notion of the separation of powers, leads judges to become too proactive, and (in the case of problem-solving courts especially) that it can involve an element of coercion (for example if a guilty plea is required before an offender can be admitted to a court’s therapeutic programme).

“You are always going to get the critics, and such criticisms do need to be seriously addressed,” he says. “The point to remember about therapeutic jurisprudence though is that it is not a ‘cure-all’ – it is a ‘menu of conceptual tools’. We want to educate people not to see this sort of thing as a threat. Therapeutic jurisprudence doesn’t aim to subvert the rule of law or trump normative values but to supplement them, bringing to bear the best insights of social science and translate these to the legal system. It is feeding into a wider paradigm of experimentation within the legal system – looking at better options to achieve better results. It won’t be appropriate in all domains but, even in those areas where we want a full adversarial process to operate, there may be room for more dialogue to be incorporated.”

Therapeutic Jurisprudence: New Zealand Perspectives was published in September 2015 by Thomson Reuters New Zealand (RRP: $86.00 + GST, ISBN: 9780864729521). It is available in paperback and also as an e-book. For more information, please visit the Thomson Reuters website.

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