Familial conflict is a profoundly intimate and emotional experience. Historically, courts have taken a hands-off approach when dealing with familial conflict, but recent years have seen an increased use of the judicial system to resolve domestic issues.
Ample research notes damaging effects of traditional court models. In fact, the adversarial proceedings associated with traditional court settings can escalate family conflict through revictimization and threats or use of violence. A separate line of research long-ago established that family conflict negatively influences psychological and relational well-being of the adults and children involved in the conflict.
The collective conclusions of these studies prompted scholars and practitioners to advocate for alternative processes that deal with familial conflict in ways that minimize harm and maximize healing. One such alternative has been the development of specialty family courts.
The goals and mission of family courts reflect notions of therapeutic jurisprudence (TJ). TJ is a framework that encourages integration of judicial and treatment services. Proponents of this perspective argue that agents of law have therapeutic potential. Judges, attorneys, and other legal personnel are encouraged to work collaboratively with psychologists, social workers, and other social scientists to focus on fundamental causes of conflict and possible resolutions. TJ encounters are commonly said to share 3 primary components:
(1) Respectful interaction between legal actors and litigants,
(2) Allowing Parties to Express and Explain Their Standpoint, and
(3) Transparent Judicial Decision Making.
Research examining whether and how TJ is practiced in family court settings is scarce. This is important from an evaluative point of view, especially since there is reason to suspect disjuncture between intended and actual practice. Indeed, some of my prior research in other forms of specialty courts suggest that courts fall short of idealized principles and stated missions. In a study recently published by Criminal Justice Policy Review, I report on observations of over 100 hearings, including 8 trials presided over by 5 judges to investigate the presence of therapeutic jurisprudence in a family court setting.
I found that therapeutically just interactions were not uncommon in the court. Court personnel regularly treated the parties with dignity and respect. For example, judges directly communicated with the litigants even when the parties have legal representation. In addition, judges commonly used the litigants’ first and last name rather than the impersonal “plaintiff” and “defendant.” In fact, judges relied heavily on “natural” language and gesturing throughout court proceedings, forgoing legal jargon and the formalities often used in traditional court settings.
My observations further indicate that judges encouraged parties to express and explain their standpoint. One judge, who presided over the majority of the cases, always asked litigants if they wanted to speak even if they had hired attorneys to represent their interests. This same judge consistently reiterated the presented evidence in the case before providing her ruling, citing that she did so to keep “a clean record.” As a part of the judge’s reiteration, she commented on the case content and the litigants’ emotional responses to the content.
Despite the common use of TJ, I also observed some anti-therapeutic encounters. These interactions often included one litigant revealing distressing information about the “opposing” litigant and their relationship. For example, in some rare case parties were prompted – usually by their own counsel – to recount instances of rape, neglect, and other forms of maltreatment. Even when the litigant demonstrated extreme discomfort giving such testimony (i.e., keeping the gaze low and unblinking, answering questions with silence, answering questions by shaking their head side-to-side or stating “I don’t want to say”), attorneys would persistently probe the litigant for details.
In other cases, litigants were confrontationally questioned at length about matters seemingly unrelated to the case facts. For instance, one litigant, who was a non-native English speaker, was questioned at length about his citizenship, work status, and legal certification to drive a motor vehicle. Although these issues were not raised as part of the case complaint, the litigant was questioned about them for over 3 hours. Like traditional court, family court takes place in a public forum, so it was not uncommon for persons unrelated to the case at hand to be present at trials and hearings. As such, these interactions seemed antitherapeutic in that attorneys were seemingly relentless in their queries and/or were antagonistic in their questioning about highly personal and potentially traumatic events in a space that was open to public scrutiny.
Although I am unable to generalize these findings to other courts and jurisdictions, the study highlights the potential to confront conflict with therapeutic means. Although our traditional legal system traditionally encourages adversarial, fact-finding processes as normative, alternative practices are conceivable. Still, the antitherapeutic encounters remind us that practicing therapeutic jurisprudence can be challenging in a broader legal context that is largely built on principles that divide rather than reconcile and seek to find fault rather than heal.
Compelling critiques of the “justice” system are numerous, and a growing body of literature indicates that problem-solving courts do not eradicate inequities. Perhaps it is time for specialty courts to distance their practices from traditional court models. Or better yet, perhaps therapeutic encounters should become more engrained in our routine, everyday life. What if we were to encourage respectful interaction, empowerment to express one’s standpoint, and honest discussions about our decision making across all of our social encounters? Naysayers may dismiss the prospect as utopian or, at least, unrealistic, but being willing to imagine such possibilities could arguably spark a commitment to therapeutic living that we would all benefit from – in and out of the courtroom.
Cindy Brooks Dollar is an Assistant Professor of Sociology at the University of North Carolina at Greensboro. Her research focuses on inequalities, nonconformity, and social control.