Conference Summary of Lawyers as Peacemakers

LAWYERS AS PEACEMAKERS CONFERENCE KGORONG FUNCTION HALL, UNISA MAIN CAMPUS 14-15 October 2015 Summary of Conference Talks (Days 1 and 2) By Kai-Anne Clews Kaianne.clews@gmail.com Day 1. Prof OS Sibanda, Director of the School of Law - Welcoming Address Prof Sibanda started the conference with an introduction on Alternative Dispute Resolution (ADR). He highlighted that Lawyers ought to be Peacemakers with an aim towards the speedy, efficient and compassionate resolution of disputes. He noted that biased or adversarial judicial practices tend to further the unnecessary pain and suffering of victims of crime as well as to hinder, or entirely eliminate rehabilitation of offenders. This message was echoed many times throughout the day in the eloquent voices of his esteemed colleagues, Magistrates, Cultural Leaders, and Honourable Justices, (Local and International). The peripheral and epi-centric challenges that are facing Global Judicial Practices, and African jurisprudence were both thought provoking and frank. Social cohesion and equilibrium were put at the forefront of Restorative Judicial Practices towards true equality and enrichment of citizens. Prof John Faris – Opening Address Non-Adversarial Justice: Spreading a New Consciousness Prof John Faris gave some background on the groundwork for ADR, citing the work of legal sociologists and social anthropologists who redirected the focus from dispute institutions to disputing the very nature of disputes themselves. He quoted Chief Justice Warren Burger saying “…we tend to forget that we ought to be healers of conflicts.” Prof Faris spoke on non-adversarial justice as non-dualistic and cohesive towards unitive thinking and thus unitive community solidity; the very essence of African jurisprudence. A shift of focus from rampant punishment, often at the expense of victims, the state and criminals, towards a more problem-solving approach were at the core of his talk. The Honourable Justice Lebotsang Bosielo – Keynote Address Is Restorative Justice a Viable and Effective Sentence? A new Paradigm The Honourable Justice Lebotsang Bosielo (President, Supreme Court of Appeal) gave an immense Keynote Address on Restorative Justice and asked the question of its viability for practical implementation. He explained some of the challenges facing such a radical shift in Judicial practices. A punishment centred society which places all of its energy and emphasis on the criminal and denigrates the victim to a lower standard of importance makes the task of forgiveness, reintegration and reconciliation difficult in the extreme. He spoke on the humanizing of the law, the move away from fractured society, and the move towards Restorative Justice that repairs and restores society when that equilibrium is disturbed. “The African model of justice is not vengeance orientated – it is restorative in nature. Ubuntu; Love, empathy, compassion and selflessness. Unity thinking as opposed to duality-thinking. More prisons are not, and will never be the answer to violent crime in South Africa. To build more is an act of desperation in the face of an out-dated and ineffectual Adversarial justice system.” Part Two: Theme: Therapeutic Jurisprudence and Problem-Solving Courts The Honourable Justice Peggy Hora – Introductory Address An Introduction to Problem-Solving Courts The Honourable Judge Peggy Hora persuasively expressed that simply building more prisons is not an effective response to increasing rates of crime. She shared the statistic that although America only accounts for 5% of world population, 20 – 50% of all the worlds incarcerated people (2.3 million) are in American prisons. Judge Hora spoke on the fact that addiction issues like alcohol, combined with unsatisfactorily addressed mental health issues, account for many of the criminal offences that directly contribute to such alarmingly high inmate numbers. Effective Drug Courts are saving hundreds of millions of dollars annually, and are not only a justifiable expense, but an essential one to turn the tide harmful criminal justice policies. “It takes a new vocabulary to redefine drug court.” She highlighted the need for better care of High-Risk High-Need offenders, and a better understanding of the residual harm to families with incarcerated family members. Therapeutic Judisprudence was cited as one of the most effective ways forward in the struggle to effective judicial practices. Prof Annette Van Der Merwe – Therapeutic Jurisprudence for South Africa: Exploring the Potential Prof Van Der Merwe spoke on how Therapeutic Jurisprudence (TJ) focuses on the Humanizing of the law. Special context courts, i.e. Drug courts, in which ubuntu is put into tangible practice (active listening, empathy, consideration for the human experience, and respect for both parties involved) have the potential for achieving well executed TJ practices which have been shown to be socially cohesive. Prof Van Der Merwe gave the analogy of new wine in old bottles. The wine representing TJ practices, and the bottles representing the existing legal structures. As Prof Van Der Mewe said “To fill the spaces left by the law.” “It (TJ) is not an end in itself but rather a broad stepping stone to social cohesion.” Two core features exist in the TJ model; optimizing human well-being and focusing on more than just legal rights, but on a broader concept of what it is to be human within unity consciousness. Restorative Judisprudence (RJ) is the process through which TJ can be implemented – while taken as an aid to legal procedures and through appropriate mindful action these processes can parallel powerfully in social re-stabilization. Ms Gabriela McKellar – Therapeutic Jurisprudence in the Family Court “Doing with, not to or for.” Ms McKellar spoke on family Court and discussed her revolutionary TJ practices when dealing with families and children. From September to the following December she saw 1, 993 cases come to her, and with her new TJ style of communicating with those in her care, she only needed to send five to higher court for resolution. Magistrate McKeller explained how painful and traumatic these Family court cases can be, and spoke to her policy when meeting new families going through trauma – to distract the child with toys, care giving and respect. She and her volunteer staff remind the adults in the situation to ‘take off their shoes and tread gently, for this is holy ground.’ Part Three: Theme: Restorative Justice Prof John Faris – Introductory Address Rethinking Restorative Justice for the south African context Prof Faris asked the conference to re-think about thinking – notably in relation to the diametrically opposed thought systems of Western Traditional Judicial thinking (either/or) and African-Style restorative justice (both/and). He showed how ADR has become globalised, a new trend of mindful lawyering that will see the next predictable wave of social reform. Non-adversarial justice is on its way in the forms of the twin styles of Integrative Law models and African jurisprudence. Though these changes will of course bear challenges and enormous changes to not only practical applications but to grass-roots perceptions themselves, he is confident. The African-styled restorative justice brings with it the Constitutional value of Ubuntu: promoting indivisible dignity of personhood and respect. Ms Pritima Osman – The Ethos of Restorative Justice as Embedded in the Constitution, 1996 Magistrate Pritima Osman opened with the definition of the word ‘Peacemaker’: a person who brings about peace, especially by reconciling adversaries. Ms Osman’s talk focused on the promotion of the rights of vulnerable groups – especially children and how they are handled by the Judicial system. She made special note of the fact the Child Justice Act showed actively that compassionate lawyering and overseeing can, does, and has yielded extraordinary results in the over-all negative impact the legal system can have on those effected. If these practices can show such high levels of efficacy in this branch of the legal system, surely these practices can be adopted elsewhere too. Mr. Collin Louw (San community Leader) – (Afrikaans to English translation kindly provided by Dr Velthuizen) Restorative Justice: Tension between Traditional Justice and the Criminal Justice Systems In the 1600’s Roman-Dutch and English Law was transported and transposed onto South African customary law, and notable onto the Bushmen. Their cultural norms for dealing with crime were stable and proved efficient over vast stretches of time and the alien force of never-before seen concepts like theft have caused terrible suffering. He noted that the problem of translation has left a large gap the judicial system, and made it clear and concise that, although the constitution proclaims that all people are equal in the eyes of the law, that this simply is not the case. Money, influence and Language intelligibility have caused massive discrepancies in the fair allocations of punishments and mercies. Although the Bushmen have suffered terribly because of these invasions, oversights and lack of protest, they, in the truest essence of Ubuntu, have offered help to the Western system of judicial practices. They offer to help with ‘the small things’ to aid the legal system to focus their attention fully on arriving at the fairest and most democratic outcome. All they ask is inclusion in decision making that will directly effect them, and if the powers that be wish to know about Bushman culture, rather than sending a team to investigate, just to ask the Bushmen directly what it is that they wish to know. The Bushmen, in the spirit of unity and co-operation, wish to strengthen and unify with the Western legal system, not oppose or derail it. This is the great power of African-styled jurisprudence which had the support of powerful, well-informed voices for the entire day of the conference. Day 2. Ms Kim Wright - Introductory Address Lawyers as Healers, Peacemakers and change Makers: The Worldwide Integrative Law Movement Ms Kim Wright kicked off the second day of the conference reminding us that true dignity could be brought back to the law. She shared her experiences of how she not only became involved in the movement, but is actively the Mother of the movement towards Integrative Law. This statement was not without immense precedence as all those in attendance were invited by her, and the title of the conference itself was taken from her ground breaking book “Lawyers as Peacemakers”. It is difficult to fully express her tireless efforts not only to bring Integrative Law into the global dialogue, but also to connect so many of the emerging groups and organisations who share the same core philosophy of unity, dignity and respect. “Bringing the tribe together.” Ms Kim Wright addressed the fact that, like everything else, the Law is a system which is evolving, and has already come so far. The ADR movement is not the end of this evolution, Integrative Law is the next stage of development. As society changes so do their needs for fair legal practices that appeal to the highest ethical standards of the community, not the lowest. This was spoken about too by Judge Bosielo on the first day of the conference when he spoke on the Viability of Restorative Justice, stating: “…why we as a civilized society cannot resist the temptation to stoop to the level of the offender… Vindictive retribution as general and individual deterrence [of violent crime] when we should be building bridges aimed at the healing and restoration of fractured relations.” Ms Kim Wright also spoke on the issues of Lawyer depression and suicide, and how many leave the profession unaware that Integrative Law, Mediation, Therapeutic Jurisprudence and Restorative Justice options are available to them. She made the point that many of the Restorative Justice models are ancient and some are new, requiring Pioneers and Trailblazers – many of which were either in attendance at the conference or aptly quoted in their talks. She spoke about the International Plain Language day (13th October) taking the technical legal jargon, mostly unintelligible to the communities who lawyers seek to serve, out of the equation in favour of mutually intelligible dialogue. Mrs Amanda Lamond The Future of Law: The Integrative Law Movement Amanda Lamond founded the centre of Integrative Law in South Africa. As a multidisciplinary thinker and pioneer, she shared her vision of a conscious law institute. She spoke about the unsustainability of many of our current systems, stating that these practices must either be open to change or will inevitably collapse. She too spoke about the evolution of the law, echoing her colleagues’ sentiments that as a civilized society it should strive towards its highest rather than its lowest ideals and practices. Understanding that as Peacemakers, the call is essentially a spiritual one. Becoming people-centric and understanding systemic problems and finding solutions which ‘name, connect, nourish and illuminate’ we can effect meaningful change and re-establish lawyers as resolvers of conflicts. Challenging outdated assumptions that form the basis for many legal practices, i.e. that people exist in isolation of each other, and that is actually possible to fully ‘remove oneself emotionally’ from a situation. Becoming aware that it is impossible to see things completely objectively from the outside, as lawyers are human being too, while only taking a tiny fraction of the human experience into account while attempting to restore those people effected by crime and repair social traumas which are the result of crime. Hers is a call to mindfulness, to conscious lawyering, to that deep connectedness from which we all spring. Hers is not a call to change the law itself, but as she says ‘The bits around law and its implementation.’ South Africa’s child Protection act shows that by placing the welfare of the child at the forefront of importance it is possible to maintain sound legal requirements and make the process of legal involvement as un-traumatic as possible. If we can do this for children, why can we not do this for adults. Mr Clarence Tshoose Ubuntu Values and the Integrative Law Movement Mr Tshoose showed that the meaning of Ubuntu was not only ancient but also shared, under other names, by many African cultures and practices across the continent – Ms Pritima Osman (Day 1) also shared an Indian philosophy firmly rooted in the same principles of indivisible human dignity and mutual respect. He spoke about Ubuntu being introduced by the interim constitution in 1993, and how it first emerged into legal dialogue as early as the 1920ies. Another phrase which was echoed throughout the day though many of the speaks was “Holistic Lawyering” – taking the whole into account rather than just fractured parts. And like Prof Faris (Day 1) stated in his Opening Address “Dualistic thinking provides dualistic solutions. Moving from ‘either/or’ thinking to ‘both/and’ thinking would provide results that mirror that integrity. The type of thinking that got us into trouble is seldom the same thinking that will get us out of it again.” Mr Tshoose gave many examples of how communities provide for the vulnerable and the disenfranchised, how they settle disputes and conflicts in such a way that not only is the problem itself set right, but those involved become healers themselves in teaching others how they went wrong. He spoke on the need to have these holistic practices to be infused into the curriculums of Law colleges – to teach mindfulness alongside the structures that already exist. This as well goes back to what Ms Wright (and others) mentioned about lawyers leaving their professions in frustration, not being aware that Alternative Dispute Resolution practices exist and are viable options. Mr Rob de Rooy Proactive Law – Visual Contracts Mr Rob de Rooy gave great insights into systems of thinking within the law. He mentioned feedback loops of unintended consequences surrounding the current status quo of lawyering both from the public and practitioners themselves. He explained that most conflicts come from a betrayal of an implied, presumed, expected or contracted trust. An agreement which was seemingly betrayed is then resolved with another agreement. This pandemic of confusion arises often from people not understanding or even fully reading contracts that they sign. An innovative and impressive idea was brought forth to supplement (not replace) the contract system in the terms of using infographics and visual contracts to help parties understand what is expected of them. The matter takes on even greater significance when thinking about the truly dis-enfranchised of our community; those with little to no formal education and of low literacy standards. He stated that it is wrong to further victimise these people when they cannot even seek legal help through understanding contracts. As Mr de Rooy said “A contract is the constitution of a long term relationship.” If one reads the word ‘constitution’ as we would for the legal constitution of a country, its immense importance becomes clearer. He showed the conference examples of a new style of contract writing called “ComiContracts” in which comic-styled art is used to help bring clear messages across and inform participants not only of their rights and duties but their standing should those rights be infringed. Prof Faris commented that many years ago the same technique was employed to get information to the masses through the use of informative posters – thus getting to a much larger audience that dry-text ever could. Ms Sheena St. Clair Jonker Peacemaking, Social Justice and Lawyers as Change Makers Activist and peacemaker Sheena St. Clair Jonker gave an exceptional talk on social justice, speaking from experience and from the heart on her passion for positive change. ‘Peace is not the absence of conflict; it is the presence of justice.’ She spoke on the dismantling of inequality, and the space left in-between Truth and Reconciliation, when true reconciliation is needed. She spoke about the problems like non-violent offenders being put in leg irons and their lawyers not fighting for their clients under the shoulder-shrug excuse of “Ya well, that’s just the way it’s done.” Ms St. Clair Jonker spoke about the genesis of violence in society as a three stage spiral. Stage 1. Systemic violence like Poverty. Stage 2. Reactive Violence, rape, murder, gangsterism etc, and Stage 3. Redemptive Violence in the forms of punishment, which then spiral back to stage 1 and begin again. She explained to us that as activists, lawyers, peacemakers and those fighting for social change, Discontentment is a gift. She explained that if we do not see it as a gift we run the risk of disengaging completely. We need Soft hearts and Tough minds, and she brought the point across that the inverse of that statement causes and will continue to cause immense suffering as long as we let it continue. She explained that there is this over-arching notion Globally that “We’ll bomb the world into peace.” She then stated “It [the world] is subdued and tired, not peaceful.” – this theme that redemptive violence in the guise of social medicine causes more problems than it could ever solve, was repeated many times thought the conference. “Walls don’t make us safer, we must tear them down and build bridges – eating together, praying, gardening, together, that is what will start to build. If you want to know how to be a change maker, and what you should do. It’s simple. Show up. And there are many ways of showing up. It can be in the form of seeing a problem and taking it out of the other persons hands and doing it all for them. This is not respectful to them or yourself, and in the long run, not helpful. Far better is to share the burden rather than just taking over. Or you can always just be with them, not enough value is placed on how helpful just being with another person can be while they are dealing with challenges and expressing concern.” Adv Jacques Joubert Mediation: Entrenching a Culture of Peace-making Adv Jacques Joubert shared some of his experiences and his firm belief in the immense usefulness of mediation. When he was still a young lawyer he witnessed an attacked and subsequent fatal protective action while representing a client in court. The judge and the other advocate witnessed the event too. The man (his client) brutally attacked a witness and was shot and killed by security. What caused him great concern and was a defining moment in his career is that later when he, the other attorney and the judge were speaking about it, they could not settle on what had actually happened, each person having experienced the event differently. It called into question for him what it means to cross-examine – he’d always felt that one had to be very tough to do it, and humiliating the person being cross-examined and to bully their memories of the event were par for the course. Three years later he developed a drug addiction and almost died. He went through rehabilitation and since that event has be a strong supporter of Drug Courts ever since (see Judge Peggy Horas talk on Drug Courts from Day 1 of the conference for more on this). Adv Joubert gave an interesting analogy of what happens in the south African court as a person’s cases goes higher and higher. He took a piece of A4 paper, explaining that the client sees this as their story and what is the crux of the matter it. At each stage towards higher and higher court the paper gets folded smaller and smaller, until by the time it reaches The High Court, it hardly resembles at all what the client was originally seeking help for. He spoke about the healing and restorative nature of mediation and how his full time work now is spent is this field. He spoke about the importance of listening, and listening “with your whole body, your whole self, is often the most important part when a person has been injured in some way. One needs to listen.” Ms Bev Loubser Collaborative Law in South Africa: Triumphs and Challenges Mrs. Bev Loubser spoke on the fact that so often lawyers and clients end up fighting each other rather than fighting the matter. This too goes back to what Amanda Lamond was saying about it being very difficult, if not impossible for people, lawyers, clients and third parties alike, to detach themselves from their mental, emotional, and spiritual biases in order to be truly objective. She spoke about Collaborative Law often taking the uncertainty of court out of the equation, and that it is actively practiced in the US, the Uk and Australia. A question she posed is why is it taking so long for South Africa to catch up. She suggested some answers. Many lawyers are opposed to Collaborative Law because of the financial implications to themselves, most notably less billable hours. People tend to fight longer and more brutally when they are dissuaded from seeking amicable resolution within a system geared towards rampant suspicion and utter lack of communication. She gave an example of a family Doctor in America who made a mistake and was advised not to speak to the family in question. This alarmed and distressed them tremendously creating a lawsuit in which they wished to sue for a Trillion dollars. Through the collaborative approach and getting a dialogue underway the settlement agreement was much smaller – as it came out that what the family wanted most of all was an apology. This sparked huge interest in the benefits of Collaborative Law and further studies. Stringent rules and regulations have been established to maintain the collaborative system as a viable option – these processes are fair and contain all of the power of the law while using it for the benefit of the people in distress and not just to benefit those who have been called in to help with resolution; the lawyers. Ms Chumandi Curran Lawyers as Peacemakers: Mindfulness, Compassion and Much More Ms Chumandi Curran opened her talk with a quote by Marcus Aurelius, “Nowhere can a man find a quitter or more untroubled retreat than in his own soul.” She spoke on the work of Daniel Goleman and his book Social Intelligence. She reminded us that Lawyers, like everyone else, are relational beings – and that it is a wonderful thing, provided that we are in a good space mentally and emotionally. If we are not, our imbalance will without a doubt further serve to imbalance our clients and the proceedings as a whole, thus negating the possibilities of a good and balanced outcome. She spoke on the benefits of active listening and creating a peaceful existence as a tool towards self-awareness and empathy towards others. The fact that we are vibrational beings who literally effect the energies around us, in that unity consciousness and world one-ness mentioned so many times throughout the two days of the conference. Who we are being directly effects what we do and how we do it. By understanding that we all connected to the Universal level of reality we can connect to each other truly in terms of love and respect and move forward from disharmony back to where we should be which is happiness, peace and joy. Ms Chumandi Curran spoke on the healing nature of meditation especially with lawyers who are trusted with the task of the resolution of conflicts. Better for the physical bodies of lawyers who accumulate vast amounts of stress which can manifest as fatigue and more serious conditions. This goes back to what she was saying about being in balance and what you create and do will be more balanced. The meditation also helps to re-focus the mind, protect brain tissues and aid in the creativity needed for Collaborative solutions that benefit everyone involved. The group was led by Ms Curran in a group meditation focusing on better breathing techniques and the centralisation of intention towards being peacemakers. Afterwards there was a close sense of kinship with each other, a relaxed atmosphere, and a courageous sense that together we really could enact meaningful, positive change. Prof John Faris Closing: Together Towards a Culture of Harmony At the start of the conference there was a lot of talk that championing ADR, TJ, RJ, African Jurisprudence, Collaborative and Restorative law as being a very lonely place to be. After the meditation and two excellent days of frank, sincere talks, that loneliness abated and a true sense of community and mutual determination was palpable. Intense and with all the spirt of endurance for the months and years ahead, it was the great gift of the conference to carry that spirit with us as we all went back to our parts of the world, carrying that gift of unity thinking. Prof Faris opened the floor to a group discussion in which each person; media, student, judge and academic were given an opportunity to share their thoughts and engage in what felt like a real community discussion. Active listening and mutual respect were exchanged and connections were made solid and togetherness put into working action. Useful Links and Hashtags: www.globaldrugcourts.com www.allrise.org www.therapeuticjurisprudence.org http://mainstreamtj.wordpress.com/ (Wexler, Jones & spencer 2013) #LawyersAsPeacemakers #JusticeSpeaksInstitute