THE BAR ASSOCIATION OF QUEENSLAND
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Issue 99: March 2025
About Us

In the ever-evolving landscape of the legal profession, the winds of change have already ushered in a new era of efficiency, collaboration and sustainability. As technology continues to redefine the way solicitors, barristers and the courts work, the traditional reliance on hard copy documents is declining – and for good reason.

For barristers, the shift to working digitally is not just a matter of convenience; it’s a strategic leap toward a smarter and more effective way of practising law. Whichever software, platform or system barristers choose to work with, the fact of the matter is that digital documents will provide far more powerful search and annotation capability than hard copy documents ever could.

Embracing efficiency

Replacing hours spent sifting through stacks of paper and endless page-flipping with a few simple keystrokes that yield instant and precise results. This is the promise of digital document management. With the power of search functions, keyword highlighting and seamless navigation, barristers can now access, analyse, and retrieve critical information within seconds. This efficiency not only accelerates research but also allows for more focused and strategic engagement with case materials.

Swiftly and accurately locating the key information within a document will ultimately allow more time to focus on analysing information and building strong legal arguments, rather than getting bogged down in the mechanics of searching through physical pages.

Enhancing flexible collaboration

Legal cases are rarely solitary endeavours. Collaborating with colleagues, clients and experts is an integral part of building a strong legal strategy. Yet, hard copy documents can be cumbersome to share, annotate and exchange. Going digital eliminates these barriers. With cloud-based platforms, barristers can collaborate in real time, sharing documents, making annotations and engaging in discussions without geographical constraints. This level of collaboration not only expedites the exchange of ideas but also fosters a dynamic and agile approach to case preparation.

Working with digital documents also offers a remarkable degree of flexibility – allowing barristers to operate seamlessly from any location and from multiple devices, without having to transport physical documents.

The transition to digital formats need not be all-encompassing; those who maintain a partiality for hard copies can readily embrace a hybrid approach. This entails the integration of hard copy documents alongside the convenience of digitally searchable versions.

Correspondingly, making annotations electronically is far more effective than the traditional practice of pasting sticky notes to physical documents. This transition proves markedly superior in terms of honing in on pivotal aspects quickly – as well as being able to instantly search and reference key points in court – all at the click of a button or tap of a screen.

The overarching objective is not a mere substitution of methodologies – hard copies versus digital replicas – rather a concerted effort to amplify barristers’ productivity by harnessing the full spectrum of mediums that can augment their work.

Embracing change

While the benefits of working digitally are evident, the transition may seem daunting to some barristers who have long been accustomed to paper-based practices. However, the legal community’s rapid adoption of technology is a testament to the feasibility and advantages of going digital. With user-friendly software, training resources and the right support, barristers can seamlessly make the transition, unlocking a world of possibilities that paper documents simply cannot offer.

In a profession where every minute counts and precision is paramount, barristers cannot afford to overlook the advantages of digital transformation. The move from hard copy documents to digital workflows is not just a shift in tools; it’s a transformation in the way legal professionals approach their work. Embracing digital technology empowers barristers to work smarter, collaborate seamlessly, and contribute to a more sustainable future for the legal field. The era of paper may have defined the past, but the digital age is shaping the future of law, one keystroke at a time.

September 26 CPD session

eBrief Ready seeks to create a technology-led movement that positively impacts the way the legal sector works, community wellbeing and the environment. We are committed to supporting those in the legal profession to overcome any reservations, fears or concerns with using technology to undertake their work.

For anyone seeking some one-on-one support in the transition to digital, feel free to book a 15 minute consultation with Stephen Foley, eBrief Ready’s founder.

Having previously run sessions with the BAQ around embracing technology – we will be delivering a CPD session on Tuesday 26th September: ‘Riding the AI Rollercoaster – A guide to safely and ethically harnessing the power of AI in your legal practice’. Register via the BAQ’s website.

QLS Netball Comp – 21 July 2023 

The Bar Flies (new team name courtesy of McMeekin KC) competed in, and won, the second QLS netball competition on 21 July 2023. 

A win in all 3 round games had us first in our Pool. First win was against Shand Taylor Lawyers, 15-6. Then  Kelly Lawyers went down 18-3.  Third game we thrashed Colin Bigger & Paisley 17-2. 

A very close Semi final win (15-14) against Straight Outta Compo (Littles Lawyers) had the Bar Flies straight through to the grand final. 

Fortunately no other team was a match for us and we took away the honours against No Touching! 16-3. 

Rookie award goes to Alex White for his height and those springs under his feet.  Grand final MVP to Mags. 

Back: Alex White, Bec Cripps, Ben Taylor, Bellah Brewer, Mags, Josh Fenton, Christian Jennings KC, Caite Brewer. Front: Louisa Tiffin, Carolyn McKeon.

Another Gold Medal Performance – 6 August 2023

The Bar Flies finished the 2023 netball season undefeated after taking out the trophy in the first annual tri-series against UQ students and solicitors.

Once again starting at 9am on a Sunday morning to take advantage of the students still waking up, we smashed them 31-18, our awesome defence keeping the students scoreless in the last quarter, despite one sprained ankle early in the day.

The solicitors having also beaten the students, we met them in the final. The rain threatened at one stage to stifle our efforts, but thankfully eased and at half time we were up 17-16. The second half went more our way, with the final score 24-20.

In the words of one seasoned team member, “Who would have thought the Bar netball team would go through a season undefeated. If only the soccer and cricket teams could emulate us. I can’t think of another undefeated team since St George in 1959.”

Soccer and cricket, lift your games!

Anyone interested in playing please contact Caite Brewer.

All three teams in the first annual tri-series against UQ students and solicitors.

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15

Judicial impartiality — and within that, an absence of bias — is at the heart of the Australian judicial system and central to how judges see themselves. But while serving and retired judges of the High Court have had a lot to say about when judicial bias arises, they have (with some notable exceptions, as noted in the ALRC Judicial Impartiality Report, p 234) said little publicly about how such matters should be raised with and considered by the courts. Until now. 

Attached is the full article published in AUSPUBLAW on 20 June 2023 by Sarah Fulton and Geneviève Murray.

Abstract

The resolution of claims in tort law for purely economic loss has been described as the most difficult and challenging in the common law, not least because of the range of relevant policy factors.

Sir Harry Gibbs’s lasting contribution to this vexed area of the law was the articulation of a principle providing a workable methodology across the spectrum of varied circumstances of purely economic loss.

Introduction

There are parallels in the contribution to the law of tort by the two eminent jurists, namely, Lord Atkin and Sir Harry Gibbs (hereafter referred to as Gibbs J) but it is the latter’s contribution that is the subject of this article. Their early links to Queensland is of historical note only, and there are no coincidences of time as their respective, lasting contributions to tort law, occurred some 44 years apart. The parallel or similarity in their respective contributions was the formulation and articulation of overarching principles providing a methodology for determining duty of care in any circumstance and which satisfied a range of policy issues.

Lord Atkin’s articulation of the neighbourhood principle was in the context of physical damage, whereas Gibbs J’s formulation was propounded 44 years later in the context of purely economic loss.

Below is a discussion of Gibbs J’s contribution.

The Search for a Principle in Purely Economic Loss Claims

The twin requirements propounded by Lord Atkin of reasonable foreseeability, and a close and direct relationship between defendant and plaintiff,[i] provided a principled methodology for resolving the duty question in the vast majority of physical damage cases. This was so, since the physical consequences of negligence were usually immediate, and spent at a single remove from the negligent act.

This was not so with purely economic loss which could occur at several removes (the ripple effect) from the negligence, and to a vast number of persons. The apprehension of opening a limitless number of claims was, and still underpins the cautious approach of courts to a novel finding of duty of care in claims for purely economic loss.

Cardozo C J’s statement that purely economic loss claims could expose defendants ‘to liability in an indeterminate amount for an indeterminate time to an indeterminate class’[ii] gave impetus to a clear policy that defendant tortfeasors should not be subject to a vast number of claims from an unascertained class of plaintiffs suffering purely economic loss. It was both unjust and unreasonable that a single act of negligence might require the defendant to meet an unlimited number of claims for economic loss.

The development of the exclusionary rule in the UK, denying any recovery for purely economic loss was an overreaction, and while providing certainty in the law, denied to economic victims of negligence any compensatory justice, even in circumstances where there was no threat of indeterminate liability to the defendant.

The retreat from the exclusionary rule which occurred in Hedley Byrne,[iii] applied only to negligent statements causing purely economic loss to an identified and intended user of the statement for a known purpose. There was no reason in justice to draw a distinction between negligent statements and negligent acts, if compensating the victim or victims, would not expose the defendant to indeterminate liability to an unascertained class.

Consequently, if the law was to progress to allow recovery for purely economic loss caused by negligent acts, as well as statements, it was necessary to provide a principle or methodology which would negate any duty of care to an indeterminate, unascertained class, but would facilitate recovery only to an individual or limited and ascertainable class of persons.

This was the task presented to Gibbs J in the High Court of Australia in the now celebrated decision of Caltex.

Gibbs J’s Formulation in Caltex

Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad”[iv] concerned the fracture of a pipeline owned by a third party. The pipeline carried oil to the plaintiff’s terminal. The fracture of the pipe by the negligent act of the defendant caused purely economic loss to the plaintiff resulting from extra costs associated with alternate means of transporting the oil.

This case therefore squarely raised the issue of potential recovery by a plaintiff of relational economic loss at one remove from the direct effect of the defendant’s negligence, namely damage to property (pipeline) not owned by the plaintiff.

The test of neighbourhood or proximity propounded by Lord Atkin, which was intended as a control mechanism on reasonable foreseeability, was that you owed a duty of care only to “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected…”.[v] The difficulty was in purely economic loss claims of determining who is so closely and directly affected that the defendant ought reasonably to have them in contemplation. Was the answer to this question to be determined as a value judgment, or a policy decision by individual judges on the facts of a particular case? No guidance or principle on what was a sufficiently close and direct relationship that the defendant ought to have had the plaintiff or plaintiffs in contemplation, was available.

For instance, if a canal was closed by a shipping accident caused by a negligent navigator, was the navigator in such a close and direct relationship to the general users of the canal, that the defendant ought to have had them in contemplation as likely to suffer economic loss? Similarly, if a contractor negligently severed a powerline thereby depriving a large commercial area of power for a substantial period, were all those suffering economic loss in their businesses, persons who were so closely and directly affected that they ought to have been in the defendant’s contemplation?

Was there a principle that could fill out the content of Lord Atkin’s neighbourhood test, providing a workable solution to the question of what was a sufficiently close and direct relationship that the defendant ought to have had the victim or victims in contemplation.

It was here that Gibbs J (as he then was) in Caltex formulated and articulated what has subsequently become known as the “known plaintiff” test which provided an answer to the broad question posed by the Atkinian statement of proximity.

Gibbs J stated:

“In my opinion it is still right to say that as a general rule damages are not recoverable for economic loss which is not consequential upon injury to the plaintiff’s person or property. The fact that the loss was foreseeable is not enough to make it recoverable. However, there are exceptional cases in which the defendant has knowledge or means of knowledge that the plaintiff individually, and not merely as a member of an unascertained class, will be likely to suffer economic loss as a consequence of his negligence, and owes the plaintiff a duty to take care not to cause him such damage by his negligent act”[vi]

Gibbs J continued:

“In the present case [the defendants] knew that the pipeline led directly from the refinery to Caltex’s terminal. They should have known that, whatever the contractual or other relationship between Caltex and A.O.R. might have been, the pipeline was the physical means by which the products flowed from the refinery to the terminal. Moreover, the pipeline appeared to be designed to serve the terminal particularly (although no doubt it would have been possible for it to serve other persons as well) and was not like a water main or electric cable serving the public generally”[vii] [the parenthesis is mine].

Gibbs J having formulated the “known plaintiff” test then applied that test to Lord Atkin’s statement of proximity.

Gibbs J concluded:

“In these circumstances [the defendants] should have had Caltex [the plaintiff] in contemplation as a person who would probably suffer economic loss if the pipes were broken”[viii] [the parentheses are mine].

The achievement of Gibbs J’s principle in Caltex was to provide a basis for recovery of purely economic loss by a limited and ascertainable class of persons, and thereby preventing an indeterminate liability.

The Utility and Application of Gibbs J’s Principle

For nearly 50 years, Gibbs J’s formulation in Caltex has provided a prima facie test for duty of care across a varied range of claims for purely economic loss. Discrete categories of economic loss, caused both by negligent acts and statements, can be identified. It is intended below to briefly highlight some of these categories.

Public Utilities and Bridge Cases

The “known plaintiff” test from Caltex has exceptionally allowed recovery for purely economic loss caused to an identified individual or limited group of individuals suffering economic loss from negligent interference with the supply of electricity. For instance, where the power supply was to a specific individual only, or a small group of identifiable individuals which was known, or ought to have been known to the defendant.

The “known plaintiff” test has also been applied in situations of negligently caused damage to bridges, where the plaintiff was known to the defendant as a specific user of the bridge (although not the owner of the bridge). [see eg the Canadian National Railways[ix] case in the Supreme Court of Canada]

Noteworthy is the fact that Gibbs J’s test has not facilitated recovery to an unascertained class of plaintiff suffering economic loss as a result of a general downturn in commercial activity caused by the closure of a bridge or other public utility (eg power supply).

Disappointed Beneficiary Cases

In these cases the negligence of solicitors, under their contract with the client testator, has caused a will to fail and thereby deprived plaintiff beneficiaries of their financial inheritance. The application of the Gibbs’ principle allowed recovery, since the solicitor had knowledge or means of knowledge of the specific beneficiaries under the failed will (see eg White v Jones[x] in the House of Lords).

Relational Loss to the Plaintiff by injury to a Third Party

Instances of this category, where the “known plaintiff” principle has been utilised, are negligently caused injuries to, for example, employees with resultant economic loss to the plaintiff employer from loss of services of these injured employees. A relationship of proximity, sufficient for liability, has been found where the defendant knew, or ought to have been aware, that the injured third parties were key employees of a known employer (see Barclay v Penberthy[xi] in the High Court of Australia).

Negligent Misstatement

Gibbs J’s principle has been utilised to allow recovery of economic loss, beyond the Hedley Byrne situation of an intended user of negligent advice or information for a specific purpose, to a known user (though not the intended recipient). The “known plaintiff” test, for instance, has allowed recovery to a plaintiff mortgagor who was a known user (known to the defendant) of the defendant valuer’s negligent valuation supplied to a mortgagee building society. (see Smith v Bush[xii] in the House of Lords).

The above is not an exhaustive list of the categories across which the Gibbs’ principle has been applied, but they exemplify the utility of his jurisprudence in purely economic loss claims.

Conclusion

The aim of the above writings is to give due recognition to the contribution of Gibbs J in the vexed area of purely economic loss.

His formulation of a workable principle, capable of meeting the need of compensatory justice, while also preventing an indeterminate liability to defendants, has assisted courts for almost half a century in resolving differing circumstances of purely economic loss.

Despite more recent inroads of pure policy decisions by courts (eg use of vulnerability) in purely economic loss cases, Gibbs J’s principle has, and will continue to provide guidance in resolving such claims.

[i] Donoghue v Stevenson [1932] AC 562 at 580

[ii] Ultramares Corporation v Touche (1931) 174 NE 441; (1931) 255 NY 170

[iii] Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465

[iv] [1976] HCA 65; (1976) 136 CLR 529

[v] Donoghue v Stevenson [1932] AC 562 at 580

[vi] Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” [1976} HCA 65 at para 36

[vii] Ibid at para 37

[viii] Ibid

[ix] Canadian National Railway Co v Norsk Pacific Steamship Co Ltd [1992] 1 SCR 1021

[x] White v Jones [1995] 2 AC 207

[xi] Barclay v Penperthy [2012] HCA 40; (2012) 246 CLR 258

[xii]Smith v Bush [1990] 1 AC 831

*LLB, LLM, PhD (Barrister-at- Law)

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] 

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]

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]

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.

The Queensland Law Reform Commission (QLRC), established in 1968, has modernised its logo and branding to reflect its progressive, principled and inclusive approach to law reform.

The new look and feel of the Commission branding was developed in close consultation with the design team from the Department of Justice and Attorney-General.

QLRC Executive Director Matthew Corrigan said he was thrilled with the new branding and contemporary feel it conveyed.

“While the Commission’s previous logo and branding served us well, we felt it was important to refresh – to show that while we may be over half a century, we are a modern, adaptable, evolving organisation that is vibrant, respected, professional and trustworthy.

“The logo was inspired by a book theme – something many in the legal profession can relate to – with the colour elements representing brightly coloured sheets of paper, moving in an upward direction, which symbolises that we are always moving forward – progressing.”

Mr Corrigan said this year marked a new, exciting chapter for the Commission.

“In addition to the new branding, we’re rolling out an expanded approach to law reform to manage multiple reviews.

“Effective community engagement is critical to the work of the Commission, so it’s important people view us as accessible and feel comfortable in making suggestions for law reform to the Commission.

“We hope our new branding expresses this.”

Mr Corrigan said their website was also undergoing a makeover, in line with the rebrand.

For more information on the Commission, go to: qlrc.qld.gov.au

Extensive consultation underway for mining review

The Queensland Law Reform Commission (QLRC) continues its commitment to effective community consultation with a busy agenda of stakeholder engagement for its review of mining lease objections processes.

The mining review team has been travelling both within Queensland and to New South Wales to gain an insight and understanding from all stakeholders, including industry, government, First Nations people, environmentalists, land holders, academics and community organisations.

QLRC Executive Director Matthew Corrigan said effective community engagement was critical to the work of the Commission.

“Our recommendations for reform are based on extensive research, public consultation and the values of transparency, rigour, impartiality, inclusivity and collaboration,” Mr Corrigan said.

“It’s important we speak with and hear from a wide range of individuals to understand how the mining lease objection process is working in practice, what is working well and what is not working well. These practical insights are critical to the formation of effective recommendations for reform.

“Our Chair, President Fleur Kingham, together with members of the mining team travelled to Sydney in early August to learn how our mining lease objection processes are conducted in New South Wales. In September, a trip is planned to meet with First Nations groups in Mt Isa and Cloncurry, followed by a trip to Cairns,” he said.

Immediately following the launch event on 12 July at Customs House, in partnership with the Sustainable Minerals Institute, the mining team travelled to Central Queensland.

Both President Kingham and Mr Corrigan presented at the Land Court and Referring Agencies Annual Conference in Rockhampton. They outlined the various stages of the review and explained how interested stakeholders can participate in the process.

Following the Land Court Conference, the team met with representatives of the Darumbal people, the Traditional Owners of land in and around Rockhampton, Ragian, Yeppoon and Marlborough.

“This meeting provided an opportunity to introduce the review and listen to how we can engage with communities most effectively,” Mr Corrigan said.

The team met with staff from the Department of Resources at the Coal Assessment Hub to gain a practical insight into the operation of mining lease applications and approvals, and then travelled 2 hours west of Rockhampton to Woorabinda. There, they met with Woorabinda Mayor Cr Joshua Weazel and Woorabinda Aboriginal Shire Council CEO Kristine Smith.

“To gain a more nuanced understanding of the current process from a local government perspective, we headed to Emerald to meet with the Central Highlands Regional Council. We also met with staff from the Department of Environment and Science to discuss associated environmental authority processes, as well as representatives of the Western Kangoulu People, who are often involved in developing cultural heritage management plans with mining companies who operate on traditional country in the Bowen Basin.

“We encourage all those who an interest in mining leases, to please reach out to us,” Mr Corrigan said.

For more information on the review, go to: Current reviews | QLRC

Those interested in staying informed on the mining lease objections processes can email to subscribe to the Commission’s newsletter on the review, email: qlrccommunications@justice.qld.gov.au

Want to turn a win-lose situation into a win-win negotiation? 

Learn how from Bruce Patton, co-founder and Distinguished Fellow of the Harvard Negotiation Project, and co-author of Getting to Yes: Negotiating Agreement Without Giving In.

Negotiators often fall back on positional bargaining, the traditional haggling approach to negotiation. One side makes a strong opening demand, the other side stakes their own claim, and they exchange concessions until they either split the difference or come to an impasse. This type of win-lose approach overlooks opportunities to create – and not just distribute – value. 

You can convert a win-lose negotiation into a win-win one when you:

Keep Your Eye on the Prize

When negotiating, you goal should be to find creative ways to satisfy as many shared and differing interests as you can. To reach an agreement on conflicting interests, draw on objective standards – such as market value and industry practice – to help each side feel the negotiation is being conducted fairly. In this manner, you can manage the tension between distributing and creating value, building deals that satisfy both parties’ interests while also setting up a productive relationship.Summary: Instead of opening with strong demands, focus on creating value by exploring both parties’ interests.

The following article was recently published in HeinOnline by Lauren Zazzara on 3 August 2023.

Read here – Come on Barbie, Let’s Go Sue Somebody: Protecting the Barbie Trademark

We provide below yet another piece from the series on the fictional Sydney bar barrister “Jack Bullfry”. In this 2021 piece – upon  attaining 70 years of age and still toiling in bar practice – Jack is considering what to toss from his previously highly valuable library, which he remarks has value now only as faux chambers’ wallpaper or weekend BBQ kindling. Thanks to author Lee Aitken and the NSW Bar Association for permission to publish. BAQ members may be interested to know that – despite the influx of young, in particular women, barristers in recent years – the Queensland bar has an average age just over 50 years and only 30% are women. The later percentage is reasonable uniform across Australian jurisdictions and compares with the circa 55% women solicitors in Queensland. Bullfry writes:

The exopthalmic eyes were bright, blood-shot, rheumy, and shining, the colour of his cheeks was real and broken-veined after years of Barolo, breaking close to the surface from the faltering pump of his ageing heart. His body hovered delicately on the doorstep of old age —he was almost seventy, time was nearly up, and the hoar-frost was settling slowly upon him. (And yet, demographically, he was still in the largest cohort of barristers by far).

It was time to channel his inner Marie Kondo. You ‘must keep only those things that speak to the heart, and discard items that no longer spark joy.’ He opened the far cupboard in his chambers with trepidation. What terrors lay therein concealed? Cases unremembered; old witness statements better left unexamined – all the dreary forensic detritus of so many an immemorial year.

But, when he foregathered with boon companions for a coffee in Macquarie Street even in these morbid times, while much is taken, much abides. As Epicurus had foretold, there was no better way to spend an equable hour than chatting with old comrades in arms about the foibles of deceased jurists, mimicking their habits of speech, and the triumphs and disasters one had rejoiced in, when appearing before them.

And, if he couldn’t muster the enthusiasm to rejuvenate his room during a COVID quietus, he never would.

Released from the cupboard, indeterminate items cascaded to his feet – assorted and outdated legal texts, back sheets, briefs, loving cups, two old and tattered volumes of the CLRs, plaques from regional law societies for delivering a CPD lecture, an old meerschaum pipe and a halfempty box of stale Coronas, two bottles (empty) of Barolo, three jabots in execrable condition, and at the last, an old wig.

Was there any point in keeping a third edition of Butt on Land Law (inscribed with a noble remembrance from its author)? The amount of learning involved in each and every edition was truly staggering. And yet modern publishers greatly preferred to foist upon the profession loose-leaf series, written mostly in-house by young underpaid researchers and minions and former Tipstaves.

There was far more to be earnt by them by sending out an ‘update’ every two months to a ‘subscriber’ than attempting to cajole an acknowledged expert to spend a sabbatical at his desk, assimilating 32 new cases on the entitlement to a right of way and reducing it all to two simple sentences with footnotes. And, sadly, the production of a hornbook of immense erudition (not to speak of ‘merely’ writing a new edition of a masterpiece) garnered no academic eclat whatsoever! Hunger Games were sweeping the legal campuses – COVID-19 border restrictions and the consequent collapse in the delicious cross-subsidy of foreign student fees meant that many senior players had had to reapply for their own professorships!

And what of the CLRs? These days you simply could not give them away except perhaps as an item of décor for those new into chambers. He thought back to a conversation he had had with the late Rodney Parker QC many years before – the latter had proudly shown him his fully-annotated set of CLRs, indexed assiduously year after year – ‘Completely noted up and worth a fortune! It’s all part of my superannuation!’ – and now, because of modern technology, not even of value as kindling for the weekend B-B-Q!

How quickly had modern technology overtaken the profession. Was it, perhaps, the Minsky moment that all had long feared – did the final closure of Silks represent the tipping point? – ‘when what could not continue as it was, did not’? The delicious rent-seeking (and opportunities for socialising) in court which had been the Equity Division’s regular call-over all now gone to be replaced by the sterility of a computer interaction with a disembodied Registrar. Something that might formerly have justified a trip for a junior or reader from Chambers for half a day with three or four matters ‘to mention’ and a lunch with comrades to follow, now reduced to a matter of minutes in front of a lonely laptop.

As well, the vicissitudes of cross-examining via the internet for hours on end, or working out which member of the appeal court had the asterisk, was proving very wearing to ageing eyes.

The changes on practice wrought by technology and ‘distancing’ meant that many now preferred to practise from a back shed in the garden at home and keep merely a door-tenancy in the hope that some passing solicitor would arrive with a brief.

He called in Alice – she had taken the mandatory PPE protocol to heart and was clad from neck to knee in a fetching polystyrene jumpsuit, topped by an orange rubber facemask (but surely the matching snorkel was a COVID accessory too far?).

‘This is way past its time, I’m afraid’.

‘But didn’t that once belong to your old pupil-master? It must be all of eighty years old’.

‘That’s just the problem. I rarely need to wear a wig at all – my burgeoning PCA and AVO practice at the Waverley Local Court doesn’t call for it, and some sort of beetle has been making sport with the lining of this one’.

And, a tear in his eye, he had handed her the wig with a mental salve atque vale to it, as advised by the Kondo technique.

As the wig (strangely reminiscent of the forelock of some dead marsupial) was dragged off, Bullfry could picture the glassy eyes of its former owner, staring at him with the humble reproach of things that are thrown away, got rid of – all of a piece with that little, little, time, the dead themselves are borne in mind.

A few minutes later what remained of it was flung into a corner of the courtyard visited every day by the dustman. During the flight down from the window its form recomposed itself for an instant; in the air there seemed to be a great advocate, a balding rhetorician, his right forefinger raised in imprecation as if to a common-law jury. Then all found peace in a little heap of livid dust.

The article can also be viewed on LinkedIn here – Bullfry cleans up his act

The following article was published in the Law Society Gazette (England and Wales) by Michael Cross on 16 May 2023.

Read here – Articled Clerks who Bust the Dams