By Susan Tay, Founding Partner of OTP Law Corporation and Co-Founder of PracticeForte
Article by Susan Tay
This is the 1st part of a series on therapeutic justice and how it may be applied in family cases in Singapore. In the other instalments, we will explore the role of different players in the administration of therapeutic justice, namely, The Lawyer, The Accountant, The Mediator, The Mediation Advocate, The Neutral Evaluator and The Counsellor.
In the context of these articles, family cases will be restricted to divorce and the issues arising out of a divorce i.e. property division, financial support and importantly, children’s matters including custody, care and control, access.
Heal Us Not Kill Us
If I may use one word to encapsulate the essence of Therapeutic Justice, it has to be “Heal”.
Therapeutic Jurisprudence is hardly a new concept. It was founded as early as the 1990s and had experienced success in the areas of mental health laws and criminal laws. It sits in the same category as Restorative Justice, both regarded as reforms to an otherwise adversarial system of court proceedings that often result in lifelong hatred and murderous contempt between litigants. Therapeutic Justice shifts the focus from mere fact finding and then deciding what is just to one on problem solving, reparation and yes, healing.
I don’t profess to completely understand how Therapeutic Justice will be applied in the family cases in Singapore. After all, it was only 1 year ago when the Presiding Judge of the Family Justice Courts (“FJC”), Justice Debbie Ong, made mention of Therapeutic Justice as an aspiration . And merely days ago on 21 May 2020 that Therapeutic Jurisprudence as a non-adversarial system in the Family Justice Courts was more fleshed out in the FJC Workplan 2020.
I will nevertheless try as best as I can, both as a family lawyer of over 30 years and also a faithful believer of the non-adversarial system in family disputes, to explain the concept of Therapeutic Justice, Justice Ong’s vision and my own aspiration in this short article.
Heal? Are You Kidding Me?
Why is going before the court so bad?
I often tell my client how in running our dispute cases (especially family), we are either in the peace mode or the war mode.
In peace mode, we seek to negotiate, mediate, have honest and open communications with the other party, sharing an aim to finding an enduring solution. You want to seek consensus, you want to avoid fights, you want to restore bonds that were damaged. In peace mode, you will need 2 hands to clap.
In war mode, you are singularly focused on winning. You spend resources preparing for the battle, gathering evidence, presenting your best case. It is often one of “I am good, you are terrible”. Hurting each other becomes inevitable. If children are involved, the hurt done to them can be lifelong. And because you need to fit your case into a winning one, for some, truths start to bend: into half-truths, white lies, lies. Or more often, your truths against my truths. In war mode, you only need one person to start.
The adversarial system fuels war mode. And for the longest time, that was what court proceedings were all about. Is it any wonder that the peace mode often entails NOT going to court? It is like telling a child, “Don’t talk to strangers”. The adversarial system is the proverbial stranger. We don’t know exactly what will happen but we know it WILL be bad. To now say that this system can be healing surely boggles.
Heal Because of the Justice System, Not Despite of
But imagine how the system no longer allows for fact finding in this way because the judge no longer decides for you what you or your family should do. Instead, once you enter into this system where therapeutic justice is administered, the focus is to see how parties can first heal from the hurt of the breakup and then bring focus on how the family can move forward in the wake of the split.
What if, before parties embarked on the divorce journey, they were 1st counselled? They were fed information, knowledge, shared experiences of what had happened, why the marriage failed, what to expect, impact on each other and the family.
I call this the Informed Stage.
What if, with the help of professionals, an effective communication channel can then be established between the parties for an honest and open exchange, rebuild trust and then restructure lives post-split? This is particularly important if there are children involved. Options and solutions definitely but also the difficult subject of emotions will be explored. This is a stage that will be continuing and may last for as long as it takes. The conversations or discussions could have different participants, sometimes a lawyer, sometimes a counsellor, sometimes an accountant who can counsel on sound financial management for the family, and then, sometimes a judge, mediator, parenting coordinator. But should almost always entail the parties themselves.
I call this the Dialogues.
With information, honest and open discussions will come 1st understanding, forgiving, then informed and considered decisions which can only result in enduring agreements, repaired relationships.
It is a mighty aspiration and yes, a Herculean task but trust that it is entirely possible.
And then if I may, I shall call this Healing.