To Dream the Impossible Dream? Therapeutic Jurisprudence in Mainstream Courts

Abstract

In the 1980s Professor David Wexler and Professor Bruce Winick introduced the concept of therapeutic jurisprudence. Therapeutic jurisprudence explores how the law and legal process can result in either therapeutic or anti-therapeutic consequences for people. Therapeutic approaches have emerged in a range of jurisdictions. Therapeutic approaches are referred to as non-adversarial, problem solving or solution-focused approaches. They have been implemented in specialist or problem-solving courts including community courts, drug courts, mental health courts, indigenous courts and family violence courts. Specialist courts are characterised by legislative reform, specialist staff and judiciary, multi-disciplinary teams, tailor made processes and additional resources. While specialist courts are common in a range of countries, the majority of cases continue to be dealt with in mainstream court settings. Mainstream courts are often characterised by large caseloads, limited time, backlogs, scarce resources and generalist staff and judiciary. This paper proposes that given the proven effectiveness of therapeutic approaches they should not only be applied in specialist courts but also in mainstream courts where the vast majority of cases are heard. It suggests that it is possible for such approaches to be applied in mainstream settings in a number of ways. Approaches can be applied within the current court process and without the need for system changes or additional resources. Approaches can also be developed at a local level through reorganising and optimising the use of existing resources. The challenge then is to institutionalise and sustain therapeutic approaches across mainstream courts and over time. The paper explores what systemic changes are needed to support broader and deeper application of therapeutic jurisprudence in mainstream courts.