The TJ Court Craft Series provides practical insights and tools for judges interested in therapeutic jurisprudence (TJ), problem solving or solution-focused approaches.
“By engaging in dialogue with participants, judicial officers can assist participants to acquire a clearer understanding of their thoughts, feelings and motivation in relation to their legal problem and its underlying issues, and to harness participants’ problem-solving skills to address them.
The use of appropriate manner of speech, body language, language selection and listening skills is important in the solution-focused judging process.” (Michael King)
“Conversation is a meeting of minds with different memories and habits. When minds meet, they don’t just exchange facts: they transform them, reshape them, draw different implications from them, engage in new trains of thought. Conversation doesn’t just reshuffle the cards: it creates new cards. (T.Zeldin, Conversation (Hidden Spring, 2000), 14)
According to Brownell, communication is a “dynamic, reciprocal process” that is “effective to the extent that the meaning the listener receives is the one the speaker intended” (1)
Solution-focused, problem solving or therapeutic jurisprudence judging involves a particular form of communication: a dialogue between judicial officers and participants that aims to promote particular common goals.
The “common goals” may vary depending on the legal jurisdiction or the stage of a legal process. Some examples might be:
- in the sentencing of an offender, the rehabilitation of the participant; or
- in a civil dispute, the exploration of early settlement of the dispute.
Traditionally in adversarial legal systems most interactions between a judicial officer and a party before a court are one-way. Such interactions might involve the judicial officer delivering a judgment or sentence and/or telling a participant what they should or should not be doing.
In solution-focused judging, whether it be in a specialist court setting or a traditional/mainstream court setting, the judicial officer deliberately seeks to promote two-way communication wherever it is appropriate.
Opportunities for two-communication will be explored in more detail in a future TJ Court Craft Series post. In this post we will explore the elements of two-way communication.
Two way communication is a dialogue helpful to both the judicial officer and the participant, has qualities of dynamism and reciprocity and includes:
- turn taking
- mutual influencing
- co-creating outcomes (2)
Turn taking means the judicial officer gives the participants the space, encouragement and support to communicate what they wish to say about their thoughts, feelings, behaviour and what is happening in their lives – including participation in a particular court program.
Through communication both judicial officer and participant can learn from each other. the judicial officer can gain greater insight into the participant; her strengths, weaknesses and challenges and how participants in her position cope. As we will see, participants can also develop that insight and also learn more about the support of the judicial officer and court team.
In communication there should be a connection between what each party to the dialogue says and what the other party has said. The judicial officer demonstrates that she has been listening to what the participant has said and, where appropriate, asks follow up questions for the purposes of clarification as to what the participant has said or to develop the conversation further.
Mutual influencing means that both participant and judicial officer are open to the ideas and suggestions of the other. For the judicial officer, it means being vigilant to ensure that preconceptions and stereotypes concerning the participant do not influence how communication from a participant is evaluated. It means demonstrating that in a solution-focused approach to judging, participants may well be a source of wise and creative ideas as to how problems can be addressed.
Co-creating outcomes means that the participant has a genuine role in determining what is to result from the dialogue with the judicial officer. It is related to the concept of mutual influencing. Co-creating means that each party influences the other in the process of reaching a mutually agreeable outcome. This is not an outcome that is coerced; it is not unilaterally imposed by the judicial officer on the participant. Collaborative problem-solving techniques and goal setting exercises as examples of processes that co-create outcome will be discussed in future blogs.
Adler and Proctor (3) describe two aspects of commitment to effective communication:
- commitment to the person; and
- commitment to the message.
Commitment to the message means knowing what one is talking about, caring about what one says and being sincere.
Of commitment to the person Adler and Proctor have stated:
Concern for the person is revealed in a variety of ways: a desire to spend time with him or her instead of rushing, a willingness to listen carefully instead of doing all the talking, the use of language that makes sense to the other person, and openness to change after hearing the other person’s ideas
These aspects of commitment are vital to a solution-focused therapeutic dialogue.
Good communication in this context also requires cognitive complexity – the ability to view an issue from a number of different angles of listening and self-monitoring can promote cognitive complexity. They can assist in preventing a misunderstanding occurring – either from the judicial officer’s perspective, the participant’s perspective or both – that may hinder the communication and problem-solving process.
Self-monitoring is also regarded as an important aspect of communication. It means being aware of the effect of one’s communication – verbal and non-verbal (body language) – on others. is arguably also an essential aspect of judicial communication in solution-focused judging and in judging generally. In a courtroom it means seeing how participants and court professionals react to the approach one takes in communicating and in applying specific solution-focused approaches. It involves recognising strengths and weaknesses in one’s approach and in assessing whether there needs to be a modification in one’s approach or the use of another strategy. Naturally, the process of self-monitoring should be applied with discrimination. Too much self- monitoring diverts one from the important task at hand – communication and solution-focused judging – and too little deprives one of the opportunity to learn and to refine one’s judging techniques.
COURT CRAFT EXERCISE: At the end of your day in court, you may wish to take a moment to reflect on the quality of your communication:
- Did you find ways to engage in two-way communication?
- Can you identify examples of good two way communication with features of turn taking, connecting, mutual influencing and co-creating outcomes?
- What was your level of commitment to the message and commitment to the person?
- Were you practicing self-monitoring?
- Brownell, Building Active Listening Skills (Prentice-Hall, 1986), 5
- G Egan, The Skilled Helper (Thomson, 8th edn, 2007), 72
- B. Adler and R.F. Proctor, Looking out, Looking in (Thomson, 12 edn, 2007), 32
This is an edited excerpt from the Solution-Focused Judging Bench Book, written by Magistrate Michael King B. Juris, LL. B (Hons), MA, PhD and produced with the support of the Australasian Institute of Judicial Administration and the Legal Services Board of Victoria. To access the full Bench Book and other resources for judges click here. Thank you to Michael King and the AIJA for permission to reproduce this work.
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