Therapeutic Justice - A Fresh Way Forward

Litigation in the Common Law countries has always been adversarial. Parties in a dispute make claims against each other. The lawyers closely guard their respective clients' positions. It is not uncommon for everyone concerned to lose sight of what we really want. What do clients really want? What do lawyers really want to accomplish?

Justice is not about winners and losers. Justice should be about providing resolutions which would be beneficial and about processes which would be psychologically acceptable or comforting. In family disputes, and in particular, divorce proceedings, the concept of Therapeutic Justice has an increasing role.

The Singapore Judiciary has been proactive in encouraging a move towards Therapeutic Justice in our Family Justice System. What is at the heart of this concept and how does it help parties embroiled in a matrimonial dispute?

The traditional province of the law is based on a model of abstract justice. We seek redress for our grievances from the courts and judges apply established legal rules to the facts of cases before them. Lawyers present formal legal arguments and 'fit' the facts into the formal structures of the law. This process may at times be impersonal, structured, and rule-based. It can't be denied that such a role exists for law in the resolution of many legal disputes.

However, legal disputes are not merely abstract battles over the application of rules. Real human actors are involved and humans experience pain, sorrow, angst, and a range of extreme passions. Legal processes have traditionally not been structured to cater for the holistic psychological well-being of the parties.

In divorce proceedings, the need for a "care" approach to the dispute instead of merely the "abstract justice" approach is greatly needed. Divorce is not primarily about the application of hard law to the dispute. Lawyers doing family work already engage in a fair amount of counselling to see their clients through the storm of divorce proceedings where clients often go through the most extreme of emotions that they may have ever encountered in their lives.

The lives of children, the mental health of the divorcing couple, and the concerns of immediate family members closely connected with the couple are all at stake. The work of lawyers representing opposing sides and the role of the judges and mediators involved in resolving matrimonial disputes is very crucial in producing a harmonious and healthy outcome for all parties. Often, hardnosed, aggressive litigation can do more harm than good for the couple.

“Divorce should be no worse than a reorganisation of family members’ living arrangements and the divorced spouses should still be able to continue to discharge their parental responsibilities with some degree of co-operation.” - Leong and Ong, "Family Justice in Divorce Proceedings in Singapore for Spouses and Their Children", Journal of the Malaysian Judiciary January [2020]

The foregoing quote emphasises what the underlying focus of dispute resolution should be about when it comes to divorce proceedings. It does not reduce the significance of the application of legal rules and procedures but refocuses the core responsibilities of the lawyers, the parties, and the judges.

It is hoped that through a genuine shift of focus, the courts can not only extend the protection of the law to the parties but also become a forum for wholesome dispute resolution.