What I learned from this session:
I have recently grappled with the issue of whether the work which lawyers (and law firm librarians) do is morally justifiable. Robin Tapper's presentation was eye-opening because with her background in theology and the clergy, she has thought about these moral issues deeply, yet she has still chosen to return to the legal profession. Listening to her, I could sense her conviction that the work that lawyers do is not just a necessary evil, but it has the potential to be noble.
My disclaimer: This is not a verbatim record of these sessions. I have attempted to be accurate, but I am not a transcriber. These are just my recollections aided by very rough contemporaneous notes. I welcome comments clarifying or expanding on or correcting these notes
Justice and emotion: legal education for human wellbeing
Robin Tapper, Robertson Hayles Lawyers
Robin began by providing some interesting information about her background which had led her to where she is today. In 1994, sixteen years after being admitted as a lawyer, Robin decided to study theology, with a view to eventually becoming an Anglican priest. She was ordained and became an Anglican parish priest in 1998. Unfortunately a bout with cancer disrupted her career in the clergy. After surviving cancer she found herself drawn back towards the law, initially working as a legal officer with the Legal Practitioners Complaints Committee of the Legal Practice Board of WA. In this position, she found herself wondering about the relationship between justice and mercy, and judgment and forgiveness. Is it possible for a good lawyer to be a good peacemaker?
Recently Robin returned to private legal practice. She thinks that the role of judges and lawyers of bearing the pain of human conflict is under appreciated. It's similar to doctors who the bear the burden of treating sickness in society. The difference is that the role of lawyers is often misunderstood. In the same way that doctors don't the illnesses they treat, most lawyers don't create the conflicts, they help other people manage their own conflicts. The personal cost of dealing with this conflict is often not appreciated.
Robin has seen that many people are making a difference in how the law is working now. She thinks that this is a part of a movement which will transform the legal system and legal education during the next 20 years or so.
There are particular developments such as the growth of mediation, therapeutic justice and collaborative law. She wonders if there any overarching theme amongst things?
In non-adversarial justice, we have seen a focus on prevention rather than litigation, solving problems rather than resolving disputes, empowering participants by including them in the decision-making process. She noted even mechanisms like mediation can be very disempowering if the participants don't have any meaningful role in the process.
Therapeutic justice has 3 main elements, voice and validation and respect. Having these things in the process can lead to greater satisfaction for clients, irrespective of the outcome.
Yet we should still treat non-adversarial justice with some caution. As the Chief Justice of NSW Supreme Court has said, there still is a place for adversarial justice. After all, the legal system is more than a dispute resolution service. Yes, it does resolve disputes, but as an arm of government intended to serve the public interest above the needs of parties to disputes.
Similarly, Professor John Wade from Bond University has criticized the false dichotomy whereby all adversarial justice is considered bad and non-adversarial justice is always considered good.
Michael King, an therapeutic justice scholar, has noted that legal education usually emphasizes the impersonal and ignore the personal. There is a need to promote the development of the whole person in law.
There have been other studies of client satisfaction in family law. It seems that adversarial and non-adversarial modes aren't a dichotomy, but a continuum, with many lawyers being able to do both – although lawyers who had received ADR training were more likely to resolve things via non-adversarial means. Procedural justice tends to increase satisfaction, irrespective of the outcome.
What do clients prefer? This research found that clients can want approaches across the adversarial and non-adversarial spectrum, depending on their circumstances, but most interestingly, satisfaction was linked to fairness given to all parties.
Miscellaneous points (these points were not necessarily miscellaneous in the presentation)
There was an article in today's Australian about depression amongst lawyers which seemed opportune given the subject of her talk.
She referred to a book called the Soul of the Desert, which has words and illustrations depicting the wonderful things which can be found in the desert.
