Solution-Focused Judging Bench Book

As some of the contributors to different vectors of the comprehensive law movement or non-adversarial justice – such as Peggy Hora, David Wexler, Bruce Winick and Victorian Deputy Chief Magistrate Jelena Popovic have observed – judging in a problem-solving court is significantly different from conventional judging. It is little wonder that mainstream legal education, legal practice and judicial education have hitherto largely not properly prepared judicial officers for this form of judging.

Although there has been significant work in developing new judging strategies and the development of judicial education programs and literature on judging in problem-solving courts, at least in Australia, this information is not easily accessible or is spread amongst diverse sources.

In late 2007, I decided to make an attempt to address this problem by writing a bench book for judges and magistrates presiding in problem-solving courts and those who wished to apply therapeutic jurisprudence in mainstream courts. The aim was to bring together in one volume important information about key problems defendants and some other litigants have and strategies judges and magistrates could use in taking a TJ approach to judging.

As my work on the bench book progressed, I became increasingly uncomfortable with the term “problem-solving court”. The therapeutic jurisprudence literature – reflecting findings from the behavioural sciences – emphasises that it is the individual concerned who makes changes to her or his behaviour and that the justice system, where appropriate, should support motivation to change for the better and the person’s implementation of the change process. The term “problem-solving court” seemed to reserve the power to change participants’ behaviour to the court.

At about the same time, I was working on a conference paper with my Monash Law Faculty colleague Becky Batagol on judging in family violence courts. Some of these courts – particularly in the US – are not concerned with engaging with participants to motivate internal mechanisms of change but see their role as to control participants’ behaviour. Problem solved. Our paper suggested a more solution-oriented approach – the court working with participants to develop and implement solutions to the violence problem while at the same time ensuring protective and support mechanisms are in place for victims. Our suggested approach was informed by therapeutic jurisprudence, transformational leadership, feminist theory and solution-based brief therapy. The paper is soon to be published as an article in a TJ issue of the International Journal of Law and Psychiatry.

At the International Law and Mental Health Congress in New York in June/July 2009 I presented a paper where I aired my concerns with courts taking a problem-solving approach and pointed out that key elements of a variety of these courts – drug courts, family violence courts, community courts – did not include an element of empowering participants to gain a greater understanding of the causes of their problems and to design and implement solutions for these problems. Rather, the elements of these courts suggested that this was the role of the court. Mental health courts are an exception, explicitly recognising the importance of promoting participants’ self-determination.

In Melbourne on Monday 23 November 2009 the Chief Justice of Victoria, Marilyn Warren, launched the new bench book. The bench book is published by the Australasian Institute of Judicial Administration. Amongst other things, Her Honour spoke of the potential of the bench book to effect cultural change.

The Chief Justice of Australia, Robert French kindly wrote the foreword for the bench book.

The title of the bench book is "Solution-Focused Judging Bench Book" rather than "Problem-Solving Judging Bench Book" on the basis that in taking a TJ approach especially in relation to underlying issues, judicial officers should, as far as possible and consistent with statute law, common law and the judicial function, empower and facilitate participants resolving their own problems with the support of the court and treatment and support agencies rather than the court solving their problems for them.
Of course courts must also reach a legal outcome.

The name also reflects the move amongst judicial officers in Australia and New Zealand towards the use of solution-focused terminology. Thus, there is a “courts as solutions” email list for judicial officers and some others in Australia and New Zealand.

Amongst other things, the bench book analyses key components of therapeutic jurisprudence and problem-solving courts; discusses non-adversarial justice in brief; analyses the elements of solution-focused judging; has two chapters devoted to judicial communication and listening skills; covers TJ strategies to be used in court; explores the mechanisms of positive behavioural change and the stages of judicial engagement with participants in court; has a chapter on how TJ/solution-focused judging can be applied in mainstream courts; and explores the professional and personal challenges to judging in this manner and suggests strategies that individual judicial officers and the court itself can use to address them.

It also has chapters on substance abuse, family violence and mental health. One of my research assistants on the project, Natalia Blecher also co-authored the chapters on substance abuse and mental health.

A pdf copy of the bench book is available for download without charge from: http://www.aija.org.au/Solution%20Focused%20BB/SFJ%20BB.pdf.

A hard copy of the bench book may be purchased from the AIJA (www.aija.org.au). The hard copy is spiral bound so it will open flat -- ideal for the bench.

The bench book was made possible by grants from the Australasian Institute of Judicial Administration and the Legal Services Board of Victoria.