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Non-Adversarial Justice


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Table of Contents

Foreword by The Hon Chief Justice Wayne Martin ACPreface 1. Introduction 2. Therapeutic jurisprudence 3. Restorative justice 4. Preventive law 5. Creative problem solving 6. Holistic approaches to law 7. ADR: Appropriate or Alternative Dispute Resolution 8. Non-adversarial processes in family law 9. Problem-oriented or solution-focused courts 10. Diversion schemes and intervention programs 11. Indigenous sentencing courts 12. Managerial and administrative justice 13. Coroners 14. Implications for courts 15. Non-adversarialism and the legal profession 16. Non-adversarialism and legal education References Index

About the Author

Michael S King is a magistrate of the Magistrates Court of Western Australia and an honorary fellow, Faculty of Law, University of Western Australia. Dr King has had broad experience in applying therapeutic jurisprudence and other non-adversarial justice modalities while presiding in a drug court, a family violence court and in mainstream court lists. Dr King has published extensively in journals in Australia, the USA and Europe on therapeutic jurisprudence, legal practice, judging, problem-solving courts, offender rehabilitation, restorative justice, meditation and natural law thought. He has produced a bench book on solution-focused judging for the Australasian Institute of Judicial Administration. In 2011 he was the recipient of LEADR's Michael Klug Award for his contribution to the peaceful resolution of conflict. Arie Freiberg was Dean of the Faculty of Law at Monash University between 2004 and 2012 following ten years as the Foundation Chair of Criminology and one year as Dean of the Faculty of Arts at the University of Melbourne. With degrees in both Law and Criminology, Emeritus Professor Arie Freiberg has focussed his academic attention over the years on topics such as sentencing, confiscation of the proceeds of crime, corporate crime, juries, juvenile justice, sanctions, victimology and regulation among other areas of interest. He is Australia's acknowledged expert in the field of sentencing issues and has undertaken extensive research on sentencing theory, policy and practice. Becky Batagol is a researcher and award-winning teacher with a focus on family law, non-adversarial justice, dispute resolution, gender, family violence and constitutional law. Dr Becky Batagol is also the co author of Bargaining in the Shadow of the Law - The Case of Family Mediation published in 2012 by Themis Press. Becky is a contributor to the ADR Research network blog and tweets regularly @BeckyBatagol Ross Hyams, BA, LLM is a practising solicitor and Senior Lecturer in Law at Monash University. He worked in private practice as a solicitor in a commercial legal firm from 1987 until 1990. He has taught in the Faculty of Law clinical program since 1990 and is currently Convenor of Legal Practice Programs. He has coordinated both the Faculty's community legal services and teaches family law, Foundations of Law and Non-Adversarial Justice. In 2004 he was awarded the Law Institute of Victoria President's Inaugural Community Lawyers' Award in recognition of outstanding contributions made within the legal profession and beyond. He has published in diverse areas, including criminal law, family law, legal education and clinical legal practice. He is particularly interested in research areas which explore the intersections between Non-Adversarial Justice, legal education and clinical practice.


Non-Adversarial Justice provides an overview of the range of 'non-adversarial' practices used in Australia. The breadth of the work is impressive: it covers practices extending well beyond litigation, into the everyday practice of law, and beyond the domestic context into the international arena. Read review essay... - Anna Olijnyk, UNSW Law Journal, October 2015 This is a useful guide for practitioners, students and those interested in the justice system. It is also a book that will challenge practitioners and students and will deservedly create discussion in both legal operational and educational spaces. The book provides information about an array of topics that fall within the non-adversarial justice space: holistic law, therapeutic jurisprudence, restorative justice, preventative law, and ADR. It also compares the Australian context with international counterparts, which assists in not only providing the background and context for these areas of law, but also in contrasting the operation of these in international jurisdictions. One of the useful functions of this book is the state-based Australian comparisons, with some useful tables giving a quick comparison of State jurisdictions. Students, practitioners and indeed those professions with any regular involvement in the judicial system would benefit from reading this edition, which is a well written, engaging and informative text. Read full review... - Harin Chandradeva, Ethos, ACT Law Society, Dec 2014 The foreword by Chief Justice Wayne Martin is a testament to his belief in both the concept of non-adversarial justice but also to the collection of work and its authors. It provides an honest assessment of not just the benefits of, but also the shortcomings in, non-adversarial justice processes. It provides the history of these processes, and gives an overview of the plethora of programmes and initiatives within this lesser known field of the law. It is a highly informative book, that will assist lawyers and non lawyers in understanding the way non-adversarial initiatives can be integrated, to the benefit of the legal and broader community. Read full review... - Susannah Hill, Brief, Law Society of WA, Nov 2014 Reviews of previous edition: is a useful guide to emerging areas of the law and alternatives to common practices where people have been operating in the same way for many years. The significant impact alternative dispute resolution mechanisms have had over time is examined in detail and give weight to the argument that alterantives are being favoured over litigation for more cost-effective and efficient results in resolving disputes. - Law Institute Journal of Victoria, March 2010 The book in its totality is highly commendable. It owes its beauty to the fact that it will provoke thought and even instigate far-reaching arguments not only between lawyers but by wider legal system functionaries, sociologists, psychologists and the broader community. The authors have splendidly dissected the plenary dimensions of non-adversarial justice. - Nilay B Patel, Barriser and Solicitor of the High Courts of Australia and New Zealand, Alternative Law Journal, Vol 34 No 4, 2009 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. - Lynn Cole's Global Mediation Blog - 10 November 2009 [The authors] bring home the gold. The impact of Non-Adversarial Justice should deservedly be immense ... - Professor David B Wexler, University of Puerto Rico The excesses of the adversarial system and the malaise that has descended upon the legal profession have prompted a basic rethinking of legal processes and the role of the lawyer. This book examines the emerging strands of what the authors call "non-adversarial lawyering." Many of these developments have originated or been refined in Australia. American lawyers and judges have much to learn from this extraordinary book, which represents the future of the legal profession and the processes through which law is administered. - Professor Bruce J Winick, University of Miami Non-Adversarial Justice identifies the common themes, values and principles that bring these disparate theories and practices together and explicates them for practitioners, courts and students while examining the implications of these changes on legal practice, the courts and legal education. - Law Society of SA Newsletter

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