Better judicial conversations (TJ Court Craft series #4)

The TJ Court Craft Series provides practical insights and tools for judges interested in therapeutic jurisprudence, problem solving or solution-focused approaches.  Read other blogs in the Court Craft Series here.

This blog builds on our previous post about improving communication in court (here).

“Asking questions, paraphrasing, supporting, analysing, advising in an empowering way and judging are responses judicial officers can use according to the situation.” (Michael King)

Dialogue between judicial officers and participants is a vital means by which the court can promote participant motivation to engage in the court process and address the underlying reasons for offending.

The quality of dialogue can be greatly assisted by the responses of a judicial officer during the dialogue.  Adler and Proctor (1) suggest the following are means of responding to what has been said by another person:

• Asking questions;
• Paraphrasing what the participant has said;
• Analysing; and
• Advising

Each of these responses can be used in solution-focused judging.

We have discussed the use of questions as verbal prompts in our previous blog.  In this blog we explore paraphrasing and analysing.

Paraphrasing

Paraphrasing is when a listener uses their own words to repeat back to others what they have said. It is used to clarify what has been said and to demonstrate that the listener has been listening. For example:

“You feel down because you used yesterday, is that right?”.

It is a technique that is used in active listening. It can demonstrate that a listener cares about what the other person thinks and feels. It can also help the other person to clarify her thoughts and feelings, to express them and to experience a, if paraphrasing is used excessively in a dialogue, it may appear artificial and strained. It is important to make the paraphrase as close to what the other person has said as possible, but if it is not accurate, the person has the opportunity to correct the paraphrase

Supporting

Supporting is acknowledging and identifying with a person’s situation. Adler and Proctor (2) suggest the following ways of supporting:

• Empathising. “I understand why you would be upset about using”
• Agreement. “You did the right thing by telling me you have relapsed”
• Offers to help (“How about we reschedule your next court appearance so you can attend your son’s graduation?”
• Praise (“You did a fantastic job in staying off drugs for three months!”).
• Reassurance (“Given your enthusiasm, commitment and excellent relapse prevention plan, I think you will achieve your goal of staying off drugs”

Supporting does not involve discounting a person’s situation or how they feel about it. It is not about offering “cold comfort” – sentiments such as “it’s not that bad” or “it will be better tomorrow”. These responses are more likely to stifle dialogue. Moreover, attributing blame to a participant or saying things will be better tomorrow is unlikely to make participants feel better or more motivated to deal with the underlying problems that have caused their present difficulty.

Similarly, if a participant attacks the court program as the cause of her woes, a vigorous defence of the court by the judicial officer is likely to divert the hearing from the importance of recognising the participant’s feelings and situation and engaging the participant in problem- solving. In such a circumstance, it may be best to take an empathetic approach.

Analysing

Analysing is one of the prime functions of a judicial officer. One analyses to determine the issues in dispute and to apply the law to the facts of a case. However, a judicial officer needs to take care in using analysis in taking a solution-focused approach. At times it is inevitable – such as when the judicial officer has to determine if a person should be terminated from a program, process or sanctions applied.

However, the judicial officer should be more circumspect in offering her analysis of a participant’s situation as a means of promoting resolution of a participant’s problems, particularly given that the authority of the judicial officer means that her analysis may be given more weight than that of others. A judicial officer’s analysis of the personal situation of a participant may be wrong – due to insufficient or inaccurate material before the court or a misunderstanding of that material. Even if it is correct, it may arouse a participant’s defensiveness as it could be construed as the judicial officer asserting she is a better authority on the participant’s situation than the participant.

Adler and Proctor (4) offer the following suggestions for those considering analysis as a response that may be usefully applied in the solution-focused judicial context:

• Offer the analysis or interpretation in tentative rather than absolute terms e.g. “Perhaps the reason is…”
• The analysis should have a reasonable chance of being correct.
• The analysis should only be offered when the person is likely to be open to it.
• The motive to offer the analysis should only be to assist the others in resolving their problems.

COURT CRAFT EXERCISE: In your next court list, try the paraphrasing and supporting techniques. After court take a moment to reflect on your interactions, did these techniques improve the quality of the communication?

NOTES

1. B. Adler and R.F. Proctor, Looking out, Looking in (Thomson, 12 edn, 2007), 32
2. Ibid 251, 252
3. Ibid 254
4. Ibid 258

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.