Responsive judging 

Guest blogger Ann Marie Dewhurst, PhD, Registered Psychologist, reflects on a roundtable discussion – “Responsive Judging” – at the 2016 Law & Society Conference in New Orleans, USA.

The panel of four judges included Kevin Burke (USA), Michael Jones(USA), Pauline Spencer (Australia) and Rick Verschoof (Nederland) was facilitated by Tania Sourdin (Dean of Law, University of Newcastle, Australia).

Responsive judging was defined as “a range of behaviours and approaches used by judges to more effectively attend to issues and problems that emerge in the justice system. It is particularly focused on the way judges relate to those in the courtroom” (Sourdin, 2016).

Dr. Sourdin initially asked the panel “what is a more responsive judge?”

The discussion reflected the definition of “responsive judging” highlighting the need for a responsive judge to be someone who created a deliberate connection with those in the courtroom, including the person appearing before the judge as well as those supporting the justice process.

As I listened to the discussion, it became clear to me that many of the issues that supported “responsive judging” were the same constructs that I taught my counselling psychology graduate students.

What these judges were talking about was the forensic application of several therapeutic concepts and techniques.

This panel illustrated for me in very practical terms what elements of psychological practice were informing the therapeutic jurisprudence being used in their courtrooms. I became excited by the potential possibility of a continuing education curriculum for judicial officers that would integrate and apply the concepts described by the panel.

Over the course of ninety minutes, the panel described the following skills and techniques:

Active listening skills are a foundational aspect of counselling techniques. Active listening involves a variety of techniques that communicate that you are attending to someone, focusing on what they are saying with an intent to understand. Active listening involves being open to hearing someone at both a verbal and non-verbal level, listening for feelings and emotions as much as facts and words. Active listening also involves listening strategically (i.e., going beyond the words spoken to the real motivations and need that might be underlying the message presented) and listening inquisitively (i.e., listening for information that will help formulate solutions or answers). Active listening skills are often taught as part of mediation courses (Lewis, 2016) Judge Jones described that employment of “active listening skills can help a judicial officer to develop a rapport with participants and promote therapeutic communication” (Jones, 2009, p.146).

In addition to active listening, the panel named a number of other psychological concepts and techniques supportive of responsive judging that were straight out of the graduate counselling curriculum. I will describe each of them and provide some references for further information about these concepts and techniques.

Motivational Interviewing was developed by Miller and Rollnick in 1983 as they attempted to work more effectively with problem drinkers. The fundamental principles they identified included expressing empathy, rolling with resistance, supporting self-efficacy and developing discrepancy between competing needs (i.e., developing pros & cons). The use of these principles are aimed at increasing an individual’s commitment to changing problematic behaviour through change oriented conversations.  Learn more about motivational interviewing here and here.

Solution focused responding is an important aspect of Solution Focused Therapy (SFT) which has been a mainstay of counselling curriculums since the mid 1980’s. SFT is based on solution-building rather than on problem-solving and the focus is upon the client’s desired future rather than on past problems or current conflicts. The model assumes that solution behaviours already exist for the participant and that small increments of change lead to larger changes and that the solution is not necessarily related to the identified problem. The use of questioning techniques, goal setting and reflecting (scaling) questions help build co-created solutions. Read more here.

Active listening, motivational interviewing and solution focused responding all rely upon the existence of a shared or positive alliance between the judge and participant. Wampole (2001) demonstrated that the therapeutic alliance accounts for 60% of the progress in therapy. What this panel of judges were saying was that their experience in the courtroom matched what we know happens in the counselling room. The alliance between the judge and participant is a very important aspect of responsive judging. The panel went on to discuss the factors that influenced their ability to develop the alliance.

The panel discussed how responsive judging requires the judge to take personal responsibility for building an open, neutral and empathic stance. In this discussion the process of “bracketing” feelings and mindfulness were described. Bracketing is a process often described as part of qualitative and phenomenological research that helps mitigate the impact of negative pre-existing biases or preconceptions that might taint the research process (Tufford, 2012). Bracketing involves attending to internal questions and reactions in a curious manner and looking toward the impact of those reactions in consideration of the matters at hand. There is an assumption that we all have biases that range from the known to those that come to light only when triggered. Responsive judging, according to this panel, involves significant self-reflection and self-awareness. Mindfulness was described as a specific process to support the development of that practice. Mindfulness is a “moment to moment awareness” without judgement or striving. It involves entering a relaxed state of awareness that observes your thoughts, feelings and sensations and the outer world without trying to control anything. Learn more here.

Another concept raised was the idea that the responsive judicial officer has an obligation to be properly informed about the human experiences that might influence the positions of participants. For example, the panel members discussed their need to have accurate information about the impact of trauma on the individuals who might appear in Court. Having an evidence-based understanding of how people make decisions and the psychological processes involved could make a big difference in generating creative solutions. Similarly, the panel members described how important it was for them to have an applied understanding of the developmental pathways involved in various criminal activities (e.g., intimate partner violence, sexual offending, violence, etc.). Having an understanding of the literature pertinent to these common issues allows for the judicial officer to listen strategically for what might work in terms of conflict resolution.

What I heard from this panel was that responsive judging required many of the same skills that we encourage in effective counsellors. This makes sense from a therapeutic jurisprudence perspective. David Wexler describes that bottles of good wine often arise from blending grapes from many vineyards (link). Counselling psychology appears to be a vineyard that contributes valuable fruit to the blend.

In listening to the panel however, it appears that the participants, like many innovators, integrated strategies based on their own explorations of “what works” to get the results they wanted in their courtrooms.

It struck me that the panel had described an exciting continuing education curriculum for judges. If, as this panel suggested, responsive judging is important in the process of mainstreaming therapeutic jurisprudence then supporting judicial officers in building these skills and knowledge sets is important.

The panel members were clear that they learn best when information is shared in an applied manner specific to their situation. For example, in discussing the application of motivational interviewing skills, a panel member expressed gratitude for seeing scripts where the concepts are applied directly to judging, giving context specific, step-by-step examples.

In essence, the judging group appreciates wine blended to meet their specific needs. This requires the direct collaboration between counsellors, forensic psychologists, judicial officers and other like-minded legal professionals in the development of the curriculum.

Ann Marie Dewhurst, PhD, Registered Psychologist (AB & NT), Valerian Consulting Edmonton AB, Phone: 780-485-5119

References
Tufford, L. (2012). Bracketing in qualitative research. Qualitative Social Work, 11(1), 80-96.

Wampold, B. (2001). The Great Psychotherapy Debate. New York: Lawrence Erlbaum.
Ann Marie is a registered psychologist working in private practice in Edmonton, Alberta. She does a great deal of family court related work with child protection agencies and parents who are dealing with issues such as fetal alcohol spectrum disorder, poverty, trauma, cultural oppression/discrimination, and violence (sexual/physical).