Glen Cranwell is a member of the Queensland Civil and Administrative Tribunal and an accredited mediator. The views expressed are those of the author. This is an abridged version of an article with the same title published in the Australasian Dispute Resolution Journal.
Introduction
Therapeutic jurisprudence is a lens through which the law can be viewed. All aspects of the law can be therapeutic or anti-therapeutic. As Wexler wrote:[1]
“Therapeutic jurisprudence looks not merely at the law on the books but rather at the law in action – how the law manifests itself in law offices, client behaviour, and courtrooms around the world. The underlying concern is how legal systems actually function and affect people.”
The focus on therapeutic jurisprudence is on reducing the negative aspects of the legal system.[2] Therapeutic jurisprudence is wide, flexible and can be difficult to summarise. However, there are some basic principles that underlie many of its strategies – such as voice, validation and respect and promoting self-determination.[3]
Mediation has been described as “conflict resolution in a ‘therapeutic key’”.[4] One goal of mediation is self-determination, where participants negotiate to reach agreement rather than have a court or tribunal decide an outcome of a dispute.[5] The focus is on empowering participants in both the process and decision-making by providing them with the opportunity to voice their needs in a respectful process.
Therapeutic jurisprudence and mediation are two major vectors of the comprehensive law movement, which views law as a healing profession.[6] While the use of mediation is common in courts and tribunals in Australia, the principles of therapeutic jurisprudence have been less known and accessible. This article aims to make a modest contribution in this regard.
I will begin by providing a history and overview of therapeutic jurisprudence, before discussing the facilitative model of mediation, which is the model used in Australia for most training. The balance of the article then addresses how therapeutic jurisprudence can be applied to mediation. My contention is that mediators can improve their mediation practice through an awareness of the principles of therapeutic jurisprudence.
Therapeutic jurisprudence overview
The term therapeutic jurisprudence originated in work undertaken by Wexler and Winick in mental health law in the United States in the late 1980s.[7] Simply put, therapeutic jurisprudence is the idea that “whether we know it or not, whether we like it or not, the law is a social force with consequences in the psychological domain”.[8]
Therapeutic jurisprudence seeks to identify how legal rules, procedures, actors and institutions interact to affect those who have dealings with the legal system. It recognises that every legal interaction has the potential for therapeutic and anti-therapeutic outcomes and seeks, where possible, to minimise the harm and maximise the benefits from such interactions.
There are four main areas of inquiry in therapeutic jurisprudence: “(a) the role of the law in producing psychological dysfunction, (b) therapeutic aspects of legal rules, (c) therapeutic aspects of legal procedures, and (d) therapeutic aspects of judicial and legal roles”.[9] Most scholarly inquiry has focussed on the final area of inquiry, namely the way legal actors – such as judges, tribunal members, mediators and lawyers – go about their work. This is also my focus for the reason that legal actors, as individuals, can make immediate changes in their work to improve the therapeutic experience of participants in the legal system.
When participants feel that the legal system has treated them with fairness, respect and dignity, it has a therapeutic effect. Therapeutic jurisprudence recognises that there are essentially four principles that underlie such a therapeutic experience:[10]
- Voice means providing an environment where the participant can tell their story to an attentive legal actor.
- Validation involves the legal actor acknowledging that he or she has heard the participant, values their contribution and will take their story into account.
- Respect is “the manner in which the [legal actor] interacts with the [participant], whether the [legal actor] takes time to listen to the participant, the tone of voice and language used and the body language of the [legal actor] in interacting with the participant”.[11]
- Self-determination is the opposite of paternalism and coercion, which can create resistance to change.
Ronner has described the mutually reinforcing nature of these principles as follows:[12]
“[L]itigants must have a sense of voice or a chance to tell their story to a decision maker. If that litigant feels that the tribunal has genuinely listened to, heard, and taken seriously the litigant’s story, the litigant feels a sense of validation. When litigants emerge from a legal proceeding with a sense of voice and validation, they are more at peace with the outcome. Voice and validation create a sense of voluntary participation, one in which the litigant experiences the proceeding as less coercive.”
In contrast to more formal adversarial proceedings, legal actors employing a therapeutic jurisprudence approach should be more active, collaborative, less formal, more attuned to direct communication with the participants, more attuned to their personal circumstances and more positive in their interactions with them.[13] Legal actors can act as an example for participants and can model proper ways of interacting by: [14]
- the way the legal actor interacts with participants;
- demonstrating respect for other participant’s views;
- using empathetic communication techniques;
- promoting dialogue;
- facilitating participants sharing ideas and suggestions for the conduct of a case; and
- using a non-confrontational style in addressing differences between participants.
Therapeutic jurisprudence has been widely used in specialist problem-solving courts and tribunals, for example, drug courts, domestic violence courts, youth justice courts, mental health courts and tribunals, indigenous courts and even some civil courts. Importantly, researchers have also begun to explore the links between therapeutic jurisprudence and mediation.[15]
Mediation overview
Boulle has defined mediation as a decision-making process in which the participants are assisted by an outside intervener, the mediator. The mediator attempts to assist the participants in their process of decision-making and to reach an agreement to which each of them can assent. The key fundamental characteristic of mediation is that the mediator does not have a binding decision-making capability.[16]
In Australia, there are two dominant models of mediation – the facilitative and evaluative models.[17] Riskin posited that these models could be explained as a grid showing movement between an approach where the mediator sought to gain agreement through delving behind participants’ positions and discovering their needs and interests, to an approach where the mediator advised participants of likely court outcomes and evaluated their dispute.[18] He described the assumptions underlying the choice of an evaluative or facilitative model in the following terms:[19]
“The mediator who evaluates assumes that the participants want and need her to provide some guidance as to the appropriate grounds for settlement … Conversely, the mediator who facilitates assumes that the parties are intelligent, able to work with their counterparts, and capable of understanding their situations better than the mediator and, perhaps, better than their layers.”
The facilitative model is the model used extensively in Australia for most training, and National Mediation Accreditation Scheme (NMAS) Practice Standards incorporate key elements of the facilitative model. For example, paragraph 7.5 provides that mediators must provide a process that allows participant statements and interest based negotiations.[20] While this article focusses on the facilitative model, I note that the evaluative model can still be therapeutic.[21] The model of mediation is less important than the roles that legal actors play in the mediation in determining whether the mediation will have a therapeutic effect.[22]
According to Boulle, the goal of the facilitative model is focussed on resolving the dispute by negotiating in terms of underlying needs and interests.[23] This form of negotiation was based originally on the book Getting to Yes: Negotiating Agreement Without Giving In by Fisher and Ury,[24] which upended the traditional approach to negotiation of taking positions and making concessions. The facilitative mediator will:[25]
- divert the participants into problem solving negotiation;
- shift attention away from positional claims towards underlying needs and interests;
- encourage the participants to separate the interpersonal aspects of the dispute from the substantive aspects;
- seek common ground between the participants;
- develop options; and
- act as a catalyst for creative problem-solving.
There are typically six steps to a mediation: mediator’s opening statement; participants’ initial statements; defining of the problem; discussion and exploration of issues; generation of options, negotiation and problem-solving; and final decision making, recording and closure.[26]
Waldman has discussed how the structure of the mediation provides for enhanced participation and dignity, and fosters trust been the mediator and participants. She commented:[27]
“The mediation process includes an introductory stage, in which the mediator strives to secure the trust of the disputants. Explaining the mediator’s role as a neutral, maintaining informality, and explaining the chronology of the process are all ways the mediator works to gain the disputants’ confidence and faith. The mediator calls on each disputant to describe the dispute from his or her own perspective. If there are lawyers present, they are often advised to take a back seat to their clients. Disputants are further encouraged to work together to develop options for resolution. While it is permissible for mediators to offer suggestions, ideally the mediator encourages the parties to generate the options themselves.”
Applying a therapeutic lens to mediation
To the extent that mediation promotes the therapeutic jurisprudence principles of voice, validation, respect and self-determination, it is capable of fulfilling Waldman’s description of conflict resolution in a “therapeutic key”.[28] In this part of my article, I will address how mediators can explicitly apply these principles during mediation.
Voice
Voice is the opportunity for a participant to tell their story. The NMAS Practice Standards require mediators to provide participants with opportunities to speak and be heard, and to “articulate their respective interests, issues and underlying needs”.[29] As set out above, facilitative mediation emphasises party dialogue.[30]
A story is a description of a sequence of events connected over time. Luborsky et al suggest that most conflictual stories are structured around three elements. First, a story expresses the needs and wishes of the participant in relation to other participants (“This is what I wanted”). Second, a story expresses the response of the other participant (“This is what they did”). Third, a story expresses the affective response of participant to their subjectively experienced disjunction (“This is how I felt”).[31] This framework allows the meaning of a convoluted and complex story told by a participant to be understood in a relatively simple form.
Scholars have found that where people have had the opportunity to present information they believe is relevant to a dispute, their perception of the fairness of the process is enhanced. Tyler has pointed out that in some cases “winning” may not be the most critical outcome for participant satisfaction, rather “how the story is told and how the harm is named” may be more important.[32]
The opportunity for participants to tell their story during a mediation is generally greater than in any court or tribunal hearing. Paquin and Harvey have noted that mediation has the advantage of “high process control”, which means that it offers a meaningful opportunity to participate in the process, since the mediator is a facilitator and not an adjudicator. They continued:[33]
“Through offering neutrality and allowing the parties to tell their stories more completely, the mediation process should produce more satisfying experiences than the adjudication process. The ability to present one’s story has been found an important part to a party’s satisfaction with legal processes because the procedure, as experienced, is fairer as a result.”
There are a number of strategies that a mediator can use to promote story telling by participants: questions, statements, requests, single words (“yes”, “uhuh”, “okay”) and non-verbal prompts.[34] Of course, it is an exercise of judgment by the mediator as to whether it is desirable, or even safe, for a particular participant’s “whole” story to be told in the presence of other participants. In some cases, it may be preferable for parts or even all of the story to be told to the mediator in separate or shuttle meetings.
In this context, a recently published study compared shuttle in-person mediation with videoconferencing mediation in cases involving intimate partner violence. The result was that mediators and participants slightly favoured shuttle mediation over videoconferencing.[35] The preference for shuttle mediation could be attributed to the fact that the participants were not distracted or triggered by seeing each other’s faces or hearing each other’s voices.
Validation
Participants not only need to feel that they have been able to tell their story, but that the mediator has listened and understood what they were saying. According to King, the art of listening:[36]
“requires not only hearing what is said but understanding the intellectual and emotional content of what is being said. A party to legal proceedings often not only communicates what has happened but how the person felt about what happened.”
Validation is therefore closely related to the concepts of empathetic or relational listening.[37] Empathy refers to the ability of mediators to put themselves “in the shoes of another, to understand things from their perspective”.[38] Validation of a participant’s story will be most effective when it has both an intellectual and emotional component.[39] If a mediator can understand not only the intellectual content of the participant’s story but also the participant’s emotions that accompany that story, they can then accurately communicate back to the participant that their story has been heard and understood.
When a mediator establishes an empathic bond with a participant, it does not mean that he or she supports or favours that participant. Boulle and Alexander noted that “[e]mpathy does not signify agreement, nor does it amount to sympathy with, or compassion for, another. It involves convincing a person that the listener has entered their world of perceptions, if only temporarily”.[40] The 2015 amendments to the NMAS Practice Standards removed the term “neutrality”, but the requirement of “impartiality” remains as parts of the mediator’s role.[41] While therapeutic jurisprudence encourages mediators to be empathetic towards the participants, mediators must also ensure that they remain impartial.
Respect
Mediators can demonstrate respect for participants through a range of conduct that is consistent with displaying care for the participants. One common ground rule in mediation is that all participants will treat one another with respect throughout the process, thus ensuring that, at least during the confines of the mediation, participants feel protected and respected.[42] While courts and tribunals also require respect and politeness amongst participants in hearings, a commitment to process by the mediators enhances a participant’s experience to a greater extent than occurs in litigation.[43]
Promoting self-determination
Paragraph 2.2 of the NMAS Practice Standards describes mediation as “is a process that promotes the self-determination of participants” and in which the participants, with the support of the mediator, “reach and make their own decisions”.
The mediator’s opening statement can set the tone for the mediation from the outset. The following is an excerpt from a mediator’s opening statement used by Eddy, which emphasises that the role of the participants is to make their own decisions:[44]
“Number 1 and most important: You folks are the decision-makers. So I won’t make your decisions for you, I won’t pressure you to make any particular decisions, and I won’t pressure you in terms of time, except that we have ___ hours set aside for your mediation today. And I won’t pressure you to even make an agreement. That is always up to each of you. I’m in charge of the process and you’re in charge of making your decisions.”
Mediation can be anti-therapeutic when there is too much focus on settlement of the dispute or if pressure tactics are used. Pressure tactics are anti-therapeutic as they undermine participant autonomy, they may lead to unstable agreements and a greater likelihood for resumption of the dispute in the future, they may lead to low quality agreements which do not respond to the participants’ needs, and they may affect the participants’ relationship negatively and the willingness of participants to resort to mediation again.[45]
Conclusion
Therapeutic jurisprudence and mediation are natural partners. Mediation provides legal actors practising therapeutic jurisprudence with a framework to improve the therapeutic impact of the law. Winick noted of the different vectors of the comprehensive law movement:[46]
“With its psychological orientation and focus on emotional wellbeing, therapeutic jurisprudence is a common thread running through these various movements. Therapeutic jurisprudence brings a more theoretical and interdisciplinary perspective to lawyering than these other models. As a result, one can view therapeutic jurisprudence as an organizing framework for these emerging movements.”
The therapeutic jurisprudence principles of voice, validation, respect and self-determination can be used as a lens for mediators to stay focussed on helping the mediation to have a therapeutic effect. Mediators can use these principles to develop techniques that can make their role more therapeutically effective. A focus on settlement may be at the expense of promoting participant autonomy and the preservation of their relationships, and mediators should be conscious of the downsides of pressure tactics.
Mediators should not underestimate the effect that the mediation process can have on participants. When conducting mediation proceedings, I often have the words “voice, validation, respect and self-determination” running through my head, and I ask myself which one of these I can most appropriately give to the participants in that moment. I have seen for myself the therapeutic benefits that applying this lens can bring.
[1] David Wexler, “Two Decades of Therapeutic Jurisprudence” (2008) 24 Touro Law Review 17, 20.
[2] Arie Freiberg, “Non-adversarial Approaches to Criminal Justice” (2007) 16 Journal of Judicial Administration 205, 207-8.
[3] Michael King, Solution-Focused Judging Bench Book (Australasian Institute of Judicial Administration, 2009), 151.
[4] Ellen Waldman, “The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence” (1998) 2 Marquette Law Review 155, 160.
[5] Michael King, Arie Freiberg, Becky Batagol and Ross Hyams, Non-Adversarial Justice (Federation Press, 2014) 99-100.
[6] See Susan Daicoff, “Law as a Healing Profession: The ‘Comprehensive Law Movement’” (2006) 6 Pepperdine Dispute Resolution Law Journal 1. Other vectors include restorative justice, preventative law, collaborative law, problem-solving courts, holistic law and procedural justice.
[7] David Wexler, Therapeutic Jurisprudence: The Law as a Therapeutic Agent (Carolina Academic Press, 1990); David Wexler and Bruce Winick (eds), Essays in Therapeutic Jurisprudence (Carolina Academic Press, 1991).
[8] Wexler, “Two Decades of Therapeutic Jurisprudence”, above n 1, 20.
[9] David Wexler, “An introduction into Therapeutic Jurisprudence” in Wexler and Winick, Essays in Therapeutic Jurisprudence, above n 7, 17, 19.
[10] King, Solution-Focused Judging Bench Book, above n 3, 151. See also James Duffy, “Problem-Solving Courts, Therapeutic Jurisprudence and the Constitution: If Two is Company, Is Three a Crowd?” (2011) 35 Melbourne University Law Review 394, 398.
[11] Michael King, “The Therapeutic Dimension of Judging: The Example of Sentencing” (2006) 16 Journal of Judicial Administration 92, 95.
[12] Amy Ronner, “Songs of Validation, Voice and Voluntary Participation: Therapeutic Jurisprudence, Miranda and Juveniles” (2002) 71 University of Cincinnati Law Review 89, 94-95 (footnotes omitted).
[13] Jelena Popovic, “Complementing Conventional Law and Changing the Culture of the Judiciary” (2003) 20 Law In Context 121.
[14] King, Solution-Focused Judging Bench Book, above n 3, 10.
[15] See, eg, Kathy Douglas and Racheal Field, “Therapeutic Jurisprudence: Providing Some Answers to the Neutrality Dilemma in Court-Connected Mediation” in Greg Reinhardt and Andrew Cannon (eds), Proceedings Third International Conference on Therapeutic Jurisprudence: Transforming Legal Processes in Court and Beyond (Australasian Institute of Judicial administration, 2006); Kathy Douglas and Rachael Field, “Looking for Answers to Mediation’s Neutrality Dilemma in Therapeutic Jurisprudence” (2006) 13 Murdoch University Electronic Journal of Law 177.
[16] Laurence Boulle, Mediation: Principles, Process, Practice (Butterworths, 1996) 1.
[17] Boulle, above n 16, 28-30. Second generation models of mediation, such as transformative mediation and narrative mediation, are beyond the scope of this article as these models are not widely practised in Australia at present.
[18] Leonard Riskin, “Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed” (1996) 1 Harvard Negotiation Law Review 7, 24. Risk has since renamed the models “elicitive” and “directive”.
[19] Riskin, above n 18.
[20] “National Mediation Accreditation System” (Web Page, 1 July 2015) <https://msb.org.au/themes/msb/assets/documents/national-mediator-accreditation-system.pdf>.
[21] See Waldman, above n 4, 165-7.
[22] Omer Shapira, “Joining Forces in Search for Answers: The Use of Therapeutic Jurisprudence in the Realm of Mediation Ethics” (2008) 8 Pepperdine Dispute Resolution Law Journal 242, 272.
[23] Boulle, above n 16, 29.
[24] Roger Fisher, William Ury and Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving In (Penguin, 3rd ed, 2011).
[25] Boulle, above n 16, 131.
[26] Laurence Boulle and Nadja Alexander, Mediation: Skills and Techniques (LexisNexis, 3rd ed, 2020) 122.
[27] Waldman, above n 4, 161-2 (footnotes omitted).
[28] Waldman, above n 4, 163.
[29] “National Mediation Accreditation System”, above n 20, paragraph 7.5.
[30] Boulle, above n 16, 30.
[31] Lester Luborsky, Carol Popp, Ellen Luborsky and David Mark, “The core conflictual relationship theme” (1994) 4 Psychotherapy Research 172.
[32] Tom Tyler, “The Psychological Consequences of Judicial Procedures: Implications for Civil Commitment Hearings” in David Wexler and Bruce Winick (eds), A Therapeutic Key: Developments in Therapeutic Jurisprudence (Carolina Academic Press, 1996) 6.
[33] Gary Paquin and Linda Harvey, “Therapeutic Jurisprudence, Transformative Mediation and Narrative Mediation: A Natural Connection” (2002) 3 Florida Coastal Law Journal 167, 171 (footnote omitted).
[34] See King, Solution-Focussed Judging Bench Book, above n 3, 125-7; Boulle and Alexander, above n 26, 194-8.
[35] Amy Holtzworth-Munroe, Connie Beck, Amy Applegate, Jeannie Adams, Fernanda Rossi, Lily Jiang, Claire Tomlinson and Darrell Hale, “Intimate partner violence (IPV) and family dispute resolution: A randomized controlled trial comparing shuttle mediation, videoconferencing mediation and litigation” (2021) 27 Psychology, Public Policy and Law 45.
[36] King, “The Therapeutic Dimension of Judging”, above n 11, 96.
[37] See generally King, Solution-Focussed Judging Bench Book, above n 3, ch 6; Duffy, above n 10, 398-401.
[38] Boulle and Alexander, above n 26, 198.
[39] Bruce Winick, “Therapeutic Jurisprudence and Problem Solving Courts” (2003) 30 Fordham Urban Law Journal 1055, 1069.
[40] Boulle and Alexander, above n 26, 198.
[41] “National Mediation Accreditation System”, above n 29, paragraphs 7.1-7.3.
[42] Waldman, above n 4, 162 (footnote omitted).
[43] Kathy Douglas and Jennifer Hurley, “The Potential of Procedural Justice in Mediation: A Study into Mediators Understandings” (2017) 29 Bond Law Review 69, 84.
[44] Bill Eddy and Michael Lomax, Mediating High Conflict Disputes: A Breakthrough Approach with Tips and Tools and the New Ways Mediation Method (Unhooked Books, 2021) 69.
[45] Omer Shapira, “Joining Forces in Search for Answers: The Use of Therapeutic Jurisprudence in the Realm of Mediation Ethics” (2008) 8 Pepperdine Dispute Resolution Law Journal 242, 263.
[46] Bruce Winick, “A Legal Autopsy of the Lawyering in Schiavo: A Therapeutic Jurisprudence/Preventative Law Rewind Exercise” (2007) 61 University of Miami Law Review 515, 597-8.
