Over the past several decades in countries like Australia, the response to crime is moving in two directions. One track is innovative. It promises a change in established forms of criminal justice, to do justice differently. The other track is repetitive. It promises to intensify the established forms of criminal justice, to do justice more efficiently, and often more punitively. Crime control and justice policies have always been varied. But there now exists an unprecedented state of penological inconsistency.
Alternative justice forms, such as meetings between victims and offenders, or magistrate who take an active interest in helping defendants, sit alongside mandatory sentences for certain repeat offenders. In other words, policies of inclusion sit alongside those of exclusion in any one country, and countries vary in degree to which their policies are tripped more toward inclusion than exclusion.
The writer does not agree with the theory that innovative justice disrupts the justice system. In fact, it provides a different approach and methods to serve the justice and urges legal practitioners to think out of the circle. It challenges the traditional adversarial justice system. Non-adversarial justice uses processes that are generally more comprehensive and psychologically attuned than conventional justice system processes.
This essay reviews and compares three innovative and inclusion-oriented approaches to justice: restorative justice, alternative dispute resolution, and therapeutic jurisprudence. These techniques and approaches have significant implications for the law; the way judges, magistrates and lawyers undertake their work and legal education. The traditional way of training lawyers and members of the judiciary has been on the knowledge of the law, skills in fact finding and application of law. The introduction of innovative justice and other non-adversarial approaches suggest that emotional intelligence and interpersonal skills are also important parts of their roles.
II Restorative Justice
Restorative justice has been commonly associated with mediated encounters between victims and offenders-and in some cases their supporters-where they discuss what happened in relation to harmful behaviour and why it happened and determine what offenders will do to make amendments. More broadly, restorative justice comprises principles that promote more inclusive, comprehensive and satisfying resolution of the effects of harmful behaviour. It seeks the restoration of victims, offenders and society through the application of these principles in processes dealing with aftermath of wrongful behaviour generally.
A Definition & History
There is no easy or straightforward definition of restorative justice. It promises to hold offenders accountable to crime in constructive ways. These ways may not be punitive or harsh. They may include the voice and experience of crime victims, to be dialogic and participatory, with an emphasis on communication between offenders, victims and their supporters. There is less attention on formalities of legal system. It is another form of informal justice, which puts citizens into a central role and not just legal professionals or legalities. Restorative justice uses methods in resolving the disputes, which are more directed to engage victims, offenders and the community.
There is also a disagreement on what is restorative justice and is not. One popular definition is that restorative justice is a process whereby all the parties, with a stake in a particular offence, come together to resolve collectively in dealing with the aftermath of the offence and its implications for the future. Some scholars regard this as a narrow approach because its based on face to face interactions and the emphasis is only on repairing the harm but ignores that this repair need to include coercive response. There is another suggestion that restorative justice should be about restoring victims, restoring offenders and restoring communities.
Some restorative justice advocates believe that restorative principles should be fundamental to all human interactions. These principles include empowerment of individuals affected by particular issues or problems, respectful dialogue and collaborative decision-making to resolve the issue or problem. These principles can also be used at school levels to resolve various teacher-student issues. This approach emphasis on telling one’s story and listening to other’s, on individual responsibility for one’s actions, on respect and empathy for others, on collective resolution of disputes and on schools creating communities of care.
As per above definitions, writer is of the view that restorative justice can be used at all stages of criminal justice. It can also provide a diversion from court prosecution. Actions can be taken parallel with court decisions and meetings between victims and offenders can also take place during this process. The major ways of restorative justice are conferences, circles and sentencing circles. Australia and New Zealand are world leaders in utilizing restorative justice practices. In New Zealand, restorative justice begins with passing the regulation of the Children’s and Young People’s Well-being Act in 1989. With the passage of this act, New Zealand became the first country to provide a statutory base for conferencing.
A conference is a meeting between an admitted offender, victim and their supporters. They discuss the offence and its impact and then decide on what should be an appropriate penalty or outcome. Circle methods are methods of dispute resolution that have been practiced by Indigenous peoples around the world. They involve similar participants to family group conferences and usually also include community representatives. Participants sit in a circle to promote respectful discussion.
In Australia, restorative justice conferences began in Wagga Wagga in 1991. It was later replaced by a statutory scheme for New South Wales. Police run conferencing was piloted in early 1990s in NSW, ACT, Tasmania, NT and Queensland. There were arguments for police run or non-police run conferences. South Australia was the first to legislate and incorporate conferencing as one component in a hierarchy of response to youth crimes in 1994. Since then, all Australian jurisdictions have legislated and enacted statutory based schemes.
B Restorative versus Retributive Justice
A common approach of restorative justice advocates is to differentiate restorative justice sharply from retributive justice. Adversarial justice system relies heavily on the discrimination of wrongdoing, separation and immediate application of prescribed punishment of suggested in the symbolism of the sword whereas restorative justice embodies the re-balancing, bringing together and individual and collective healing suggested by the scales.
There is a difference between modern justice system and restorative justice. Modern justice systems do not always use conflict to resolve criminal matters. Prosecutors and defence may agree on guilt and appropriate sentence and consider they have both won. Sentencing does not always involve the inflation of pain-some offenders are released without sentence and some participate by consent in rehabilitation programs.
Modern justice systems are mostly hybrid. They reflect different values with different emphasis at various stages of the justice process. Justice systems are increasingly using practices that most restorative justice proponents would regard as restorative. Indeed, in many jurisdictions they are a predominant approach in juvenile justice and are even used at times when punitive approaches are imposed. For example, before the imposition of a term of imprisonment or while it is being served. Solution focused courts often use processes based on the therapeutic jurisprudence, involving principles such as inclusion, respectful dialogue and empowerment that are valued for promoting healing by restorative justice.
C Strengths and Limits
Conferences are perceived as fair and that participants are satisfied with the process and outcome. Elements of procedural justice, such as being treated with respect and having a say, are evident to a high degree. These methods can also play an important role in reducing victim’s anger and fear towards offender. There can be some positive moments between the victim and offender during these conferences.
Although the process is fair, there may be limits on offender’s interest to repair the harm and on victim’s capacity to see offender in a positive light. It is not surprising that some conferences are better than others. Some conferences have remorseful offenders who make sincere apologies, while others do not. Some have more pro-active and more sympathetic victims than others.
The strength of the process is the potential to communicate the impact of the offence and the potential for the offender to make a sincere apology, take responsibility for the offence and attempt to make up for the wrong. When offenders are remorseful and when conferences outcomes are achieved by a genuine consensus, the prevalence of re-offending are reduced. There can be some gaps in restorative justice ideal and actual practices. Sometimes it is hard to achieve a sincere apology. The process can help some victims recover from crime, but this also depends on the degree to which the crime distressed them in the first place.
Restorative justice seeks to promote more comprehensive, inclusive and satisfying resolution of disputes between people. It emphasizes empowering parties to wrongs to be actively involved in their resolution through respectful dialogue and cooperative decision-making facilitated in a supportive environment. Although, the main focus of restorative justice is on crime, its principles are increasingly applied in a broader range of contexts outside the criminal justice system.
III Alternative Dispute Resolution (ADR)
Alternative dispute resolution is the one of the oldest forms of non-adversarial justice. The modern ADR movement emerged in the USA in the late 1960-1970s and transplanted to Australia in the late 1970s and early 1980s. Since then ADR has been enthusiastically championed, criticised, modified, regulated and in many places, accepted as a legitimate part of the legal system. ADR is usually associated with the civil justice system. However, there are strong links between ADR and the restorative practices used in the criminal context, such as in victim-offender mediation. Indeed, both informal processes emerged at similar times with some parallel purposes. It includes an emphasis upon more holistic processes and solutions for legal problems than the traditional adversarial system can provide.
A Cost Effective
The most important argument in the favour of ADR is the adversarial nature of civil litigation and the ability of ADR processes to remedy the perceived ills of the adversarial system. One of the key reasons for preferring ADR to litigation is that ADR is perceived to cost less. Scholars argue that the cost and delay of litigation act as rationing devices for court processes. The real and perceived costs of litigation encourage individual disputants, courts and governments to prefer ADR, or at least to settle matters that might otherwise proceed to court. This cost argument is closely linked to the access to justice movement, where ADR is often seen as a vehicle for providing a more affordable source of justice than traditional litigation.
The incorporation of ADR into case management processes may also be useful method of courts to reduce cost of litigation, either in the form of judicially supervised ADR or judicial referral to an appropriate ADR processes. From consumer’s point of view, cost may be central to choosing ADR. Some researches found that almost all of the separated Australian families, who attended family mediation, choose mediation over litigation because of the perceived lower costs of ADR. The costs associated with litigation were seen to arise from lawyer’s fees rather than from the court itself. The involvement of lawyer was one of the most objectionable features perceived about litigation.
B Reduces Delay in Judicial Process
Another important argument for preferring ADR to traditional litigation is that ADR is quicker and more efficient than court proceedings. This argument is also closely linked to cost arguments. There is a universal complaint of delay in judicial processes. Delay can be both a form and a cause of injustice. The formality of adversarial court procedures, complexity of legal procedures and size of caseloads within the courts may all cause significant delays. On the other hand, ADR can be faster. A dispute can often be resolved in a matter of months, even weeks, through ADR, while a legal proceeding can take years.
Many ADR processes are flexible and can tailor the process to the needs of the dispute and disputants, hastening the resolution process. In individual cases, where the parties all agree to use ADR and can achieve an outcome acceptable to all, ADR is likely to save time. ADR used in conjunction with court processes may encourage early settlements, although unsuccessful ADR may add an extra step onto existing court proceedings, exacerbating delay. The use of ADR shortens the time taken to resolve dispute is highly dependent on the circumstances of the dispute.
C Creative Solutions
Another reason to choose ADR over litigation is that it allows for a range of creative win-win solutions that could not be sanctioned by the adversarial legal system. From this prospective, adversarial litigation is challenged for only producing divisive win-lose outcomes, for failing to recognise the human dimensions of the problems behind the dispute and for limiting to the narrow range of remedies available under law. The binary nature of adversarial litigation may ignore the interests of persons who are not parties to the dispute but who are affected by it, such as children in family disputes.
ADR processes may provide solutions that match the party’s own conception of fairness, rather than the external standards imposed by law. Agreed solutions reflect the individual circumstances of each dispute in contrast to the generic solutions imposed by the law that may not adequately fit each case. In this sense, ADR processes may be more just, from the party’s prospective. Surveys of ADR outcomes often produce high levels of participant satisfaction with ADR processes. Litigation lacks empowerment, self-determination and consent. It involves a third party, the judge, who has the ability to impose an outcome upon the parties against their wishes. Although, mediation or conciliation also involves the use of a third party facilitation, a mediator or conciliator usually has no coercive power.
Consent, or party self-determination is an important aspect of most forms of ADR, with parties choosing their own process, third party facilitator and sometimes, outcome. In court, law imposes these variables. ADR processes also empower parties to reach their own mutually acceptable settlements. Empowerment means the restoration to individuals of a sense of their own value and strength and their own capacity to handle life’s problems. It is argued that combination of party consent and empowerment in ADR creates more durable solutions than those imposed by courts by law, because the parties are more likely to abide by what they have participated in forging.
ADR as a tool of innovative justice has the potential to enhance communication, develop cooperation and preserve relationship between disputing parties, where as the adversarial legal system is premised upon conflict and may damage existing relationship. The rhetoric structure of adversarial discourse prevents not just better and nicer behaviour but more accurate and open thinking. In this respect, the philosophy behind innovative justice and the critique of adversarial system inherent in it are compatible with the ideas of therapeutic jurisprudence and restorative justice. The need to focus on personal rather legal dimension of the problem is aid to be particularly acute where relationship must continue after the resolution of dispute, such as between business partners, employees or parents.
D Limits
The critiques of ADR and innovative justice argue that it provides a second class of justice when compared with adjudication. Challenges to ADR have emerged from two key perspectives: the first come from a notion of the courts as public institutions applying the law as an objective measure of fairness, in which the entire community has an investment. ADR is said to diminish that system. According to this theory, ADR incorporates the idea of court providing an important public service, beyond mere dispute resolution. The court job is not to maximize the ends of private parties. Not simply to secure the peace, but to explicate and give force to the values embodied in authoritative texts, such as Constitution.
The second challenge to ADR springs from concerns about the private nature of ADR. It is argued that entrenched inequalities of bargaining power will prevail without any outside interference and that the stronger party’s wishes will dominate any argument made. ADR claims to be more empowering than adversarial process, arguing that the harmony ideology covers up much of the coercion that occurs during ADR processes.
Most disputes do not come before the courts and almost all cases that do reach the court settles. ADR is now a typical part of the practice of civil courts. The pressure on courts, public preferences and political power all ensure that ADR will continue to be a part of the judicial system. All Australian courts have incorporated ADR into their service to some extent. The increasing cost of civil litigation at a party and system-wide level have prompted greater use of ADR by the courts. Lord Woolf’s 1996 report into the English and Welsh civil justice system recommended that courts encourage the use of ADR at case management conferences and at pre-trial review.
The need to cut cost, reduce disposition time and increase access to justice has meant that within courts, a great deal of effort is directed towards achieving settlement as early as possible. Early settlements preserves court resources for the cases that cannot be negotiated and must be litigated.
The existence of ADR and innovative justice pose challenges for legal practice and legal education because most lawyers have been schooled, trained and practice within an adversarial paradigm. The gap between ADR and legal practice is potentially significant. There is a need for future lawyers to have knowledge and skills to practice ADR along with a sense of willingness to advise their clients to use it.
IV Therapeutic Jurisprudence
The legal system, in action affects everyone in society. However, at times, some people-such as parties to litigation, victims, offenders, witnesses and jurors-are more significantly affected by it than others. Law can affect people in different ways: economically, socially and in their relationships. Therapeutic jurisprudence asserts that the law can affect wellbeing. It studies the law and its affects on the wellbeing of those involved in its operation. It proposes law reforms directed at minimizing negative effects and promoting positive effects on wellbeing. It is said to be emotionally intelligent approach to justice.
A Implication of Therapeutic Jurisprudence
Therapeutic jurisprudence is not simply a field of intellectual discourse. It has significant implications in the daily work of the judiciary, lawyers, legal educationists and behavioural science professionals. The daily work of these professionals has contributed to the development of the therapeutic jurisprudence in terms of its understanding and expanded application of its principles in legal practice, court practice and work of other associated professionals. It has also affected the government policies and has begun to generate policy changes in legal systems.
Therapeutic jurisprudence has been criticised as an approach to examine the law, legal processes and the work of legal professionals. The definition is considered to be too vague. Scholars have said that if therapeutic jurisprudence is simply a matter of beneficial versus harmful, then it is not distinguished from other areas of inquiry. Whether a law is good or bad has been a long-term concern of the lawyers and community. To address this issue, therapeutic jurisprudence can be defined as the use of social science to study the extent to which a legal rule or practice promotes the psychological or physical well being of the people affected.
On contrary, therapeutic jurisprudence does not assert that well being promotion should be law’s paramount role. However, it believes that the role of law should be as far as possible, not to do harm. There is a conflict between different values of legal system. Therapeutic jurisprudence must subordinate to other values and can suggest a more therapeutic procedure. It’s direction is to improve the ways law operates and towards making reforms in law.
B Effect on Procedural Justice
There has been considerable work conducted in the field of procedural justice as to the circumstances in which people will respect the actions of authority figures like judges and police officers. This approach implies an ethic of care. If a judge or lawyer does not give the litigant his or her full attention, while the litigant is addressing him or her, it may create the impression of a lack of concern for the litigant. Stan Winford in one of his videos presented this in second weekend workshops session.
Coercion and paternalism have been the hallmarks of the justice system’s response to behavioural change and compliance with law. Litigants coming into the justice system place a dispute that has not been able to resolve themselves in the hands of others-legal experts-for resolution. Unless unrepresented, their participation in and control over the process may be very limited, with lawyers and the judiciary handling the matter. An outcome may be an order or judgment that brings them little satisfaction and even less commitment to its implementation.
Therapeutic jurisprudence scholars have highlighted the problem that coercive and paternalistic approaches present in motivating behavioural changes. They observed that people do not generally respond well, when told to do something. Unless, they themselves see the merits in achieving a particular goal, they often will not pursue it, or comply only half-heartedly. On the other hand, by involving people in decision-making, one can tap into deep source of motivation within. It also increases the prospect of successful action. Therapeutic jurisprudence suggests that in particular circumstances, promoting individual choice can promote therapeutic effects and justice system outcomes. Not that it can be applied in all circumstances, sometimes, there is a need to imprison someone. A person’s mental abilities are sometimes so deteriorated that they cannot make decisions for themselves.
V Conclusion
Innovative jurisprudence is not static. It is an ongoing research endeavor. It encourages the researchers to think creatively as how development in the behavioural sciences can be used in the justice system. Before the introduction of therapeutic jurisprudence, the effect of law and its processes on the physical and psychological wellbeing of parties was limited concern to the law and its officials.
Innovative jurisprudence has demonstrated that this study is valuable and it can limit the negative side effects of legal processes. It promotes justice system outcomes such as conflict prevention and resolution, respect for the law and legal officials, institutions and offender rehabilitation. The challenge remains for the innovative jurisprudence to extend from specialist applications such as problem-solving or solution-focused courts and mental health law into mainstream legal education, legal practice and judging.