Context, Consequences And Conditions: A Book Review On “Non-Adversarial Justice”

Book Review
On “Non-Adversarial Justice”
By Michael King, Arie Freiberg, Becky Batagol, Ross Hyams
Federation Press 2009

‘Non-Adversarial Justice’ provides a cognitive map of the present terrain of alternative, additional and appropriate ‘other than adversarial’ ways and means of delivering justice. Drawing from practice, from theory, from law and from other disciplines including the social sciences as well as architecture, the writers offer a complete ‘practice’ overview of the industry known as dispute or conflict resolution. This book is for the leaders of our world. Take it, learn from it, and use it.

“ The purpose of the book is to make this material more readily available and to be a resource for members of the judiciary , lawyers, academics, court administrators, government and students concerning important, challenging, and promising developments in a cutting edge area of legal development.” ^[1]

However they go further than just providing an overview of the industry, they include two themes that weave themselves through the diversity of chapters. The themes are therapeutic jurisprudence and the holistic approach.

These themes redefine what it is to be a student or service provider of the law. One of the consequences of the industrial revolution was the clear distinctions or specialist separations of subjects. A student of law has been a very different knowledge base than a student of psychology. However they both had one thing in common, they did not cross into territory that was not designated by the academic leadership. By privileging some knowledge’s over others the study forged a clear identity of expertise. This has clear advantages, the ability to be different, specific, a specialist, focusing on in-depth knowledge on one area which in turn holds a degree of high value.

Marginalizing some knowledge in order to privilege other knowledge, has its disadvantages though, and anyone who is not part of the privileged sector in society can clearly notice the difference. That difference put simply is ‘invisibility’, the sense of not being of any value, taken into account, not being relevant.

Adam Smith is noted in the Wealth of Nations, for claiming “that an extensive division of labor brings with it serious and disturbing unintended consequences. Workers who are engaged in highly specialized jobs in the production process may become dehumanized to the point that they lose touch with their basic humanity.” ^[2] It is this basic humanity that lies at the heart of a good society. Specialization by its very nature is reductionism, narrowing down the view to create an inclusion and an exclusion.

The authors of Non-Adversarial Justice, Michael King, Arie Frieberg, Becky Batagol and Ross Hyams have joined together to rebalance the inequity of how knowledge has been presented in the past few decades. With a clear goal of defining ‘comprehensive law’, this book opens doors and windows to allow a refresh for how justice can be experienced, administered and taught in a post modern society.

Beginning with Therapeutic Jurisprudence, a tone is set throughout the book, a tone of social consideration, a tone of ethical responsibility, a tone of care. Therapeutic jurisprudence “is an interdisciplinary study of the laws effect on physical and psychological well-being.” ^[3] This is a culture shift for not only lawyers but for all service providers. It is not a new concept to get multiple degrees, it is common in some law schools to offer a double degree that includes the humanities, it is also common to have career changes. This is not however the culture shift that is being introduced with Therapeutic Jurisprudence. What is being introduced here occurs within the law subject being taught, within the discussions, the assessments, the very approach taken with both the court and the client. The culture shift is a reshaping of what it is that is being viewed, and who it is that is doing the viewing. The law is being taken in context, and it is this concept of context that will challenge the current adversarial culture of legal justice.

The second theme that resonates throughout the book is a holistic approach. Besides offering a complete chapter to Holistic Approaches to Law, “the study of an object as a whole entity, in contrast to reductionism, which studies the parts of an object,” this commitment to viewing how the ‘object’, relates to justice, was for me, the heart of the book. The object meaning the process, the system, the scheme or program whilst the entity meaning, the whole society. The holistic approach brings together the impact, the context and the consequences of each developing aspect of non-adversarial justice as presented in the book, chapter by chapter.

Time has offered a distance between the ideas of a no-blame, restorative approach to conflict and the ability to test out its practice. Research and experience has provided understanding of the impacts, the constraints and the conditions that contribute or inhibit the creation of a just society. Here is one book that lays out;

Therapeutic Jurisprudence, Restorative Justice, Preventative Law, Creative Problem Solving, Holistic Approaches to Law, ADR Appropriate or Alternative Dispute Resolution, Non-adversarial Processes in Family Law, Problem-Oriented Courts, Diversion Schemes and Intervention Programs, Indigenous Sentencing Courts, and Managerial and Administrative justice.

The authors present the definitions, the presence or developing presence, research and evaluation findings, examples of implementation and the level of take up or interference with the taking up of these cultural shifts in our justice system.

Justice has many meanings. For many the word justice means administering the law, for others it means righting the wrongs of social inequity, for others it means a management of society, for still others it means a way of healing the world. For the writers of this book, Non-Adversarial Justice, means building a society that vibrates with care. Care about all the people engaged in the process, the professionals carrying out the processes, and those who are participants, care about what will be the impact of the outcome, care about the future society that is a result of these processes, systems and programs or the lack of them. Care that comes from wisdom, from listening, from lessons learnt from all societies, from all academic knowledge’s.

The wide scope of the book situates it within the conflict resolution literature as opposed to dispute resolution. The wide perspective, the holistic approach of the research as well as the reflective evaluation of the systems and processes, makes this book an uptodate response to the questions that conflict resolution poses in our modern day socie

Questions like:

• Are the ways and systems that are operating in our institutions to the benefit of the people living in our society? Are institutions serving society or is society serving institutions? Does this create human frustration, conflict?

  
  

• What is the difference between management and leadership towards resolution? Is efficiency the solution to social conflict? Many of these questions are challenges to even the current development of dispute resolution.

  
  

• Is providing a process enough to create justice? Is there a need to include wisdom, cultural context, spiritual and healing considerations?

I am not a lawyer, but I am a conflict resolution practitioner, and it was a pleasure to read this book that offered deepening’s, reflections, and a comprehensive approach to the practice and the education of law and how this relates to justice.

Already being used as a Master book for a university subject, this book, published in Australia draws on the richness of both literature research, evaluation studies and the lived experiences of the authors bringing together a complete up to date guide on how non- adversarial justice is operating (dependent on political and financial support) in our present society. This book was written in Australia, and draws its richness and value not only from the detailed local knowledge of the systems, controversy, debates and happenings within the Australian borders, but takes us beyond incorporating places and practices that are have inspired and continue to add to the diversity of the what, why and in what conditions, non-adversarial justice is part of the living society.

Although this book could not be categorized as Chicken Soup for the Lawyer, it does offer an inspiring vibration that resonates with soulful justice.

End Notes

1 King, Freiberg,Batagol and Hyams Non-Adversarial Justice The Federation Press 2009 p1

2 Robert Emmons Michael McCullough The Psychology of Gratitude Oxford University Press 2004 p32

3 Ibid p22

                       

Michelle Brenner

Michelle Brenner PGDip Conflict Resolution (Macq.Univ.) was one of the first to receive post-graduate qualifications in Conflict Resolution within Australia in 1994. Since then she has been a pioneer in the practice and development of the field. She was a forerunner in mediation in local government, being the first full… MORE >