by Hon. Jamie Jacobs-May, [reprinted from the April 13, 2010, Daily Journal, SCCBA Monthly Newsletter]Courtroom trials make good drama. Many of us were inspired to enter the field of law, influenced by movies and television shows depicting trial work. The truth is that while adjudicating disputes through an adversary system is entertaining, we are learning that it is not the best way to resolve many issues that are before us in the court system.
2010 Presiding Judge, Superior Court of California, County of Santa Clara
Across the nation, a revolution in the way we approach cases is taking place. This new way of doing business goes by different names. Sometimes it is called "problem-solving". It is also called "therapeutic justice". In California, the name "collaborative justice" has been widely adopted.
What is so different? The goal of the traditional adjudication is to determine the facts from the evidence presented, apply the law, and determine a legal outcome- guilt, liability, etc. The aim of the collaborative approach is to address the problems that brought the case to us, using the authority of the court, but in collaboration with the parties and their attorneys, and often outside agencies, in order to come up with the best possible outcome.
Problems faced by collaborative courts include drug addiction, domestic violence, mental health issues, poverty and the wide array of other social issues. The Court partners with public agencies and community-based organizations to increase the availability of services which are then integrated with the justice system, including treatment and rehabilitation. Under this model, it is essential to monitor compliance on a frequent basis. The judge serves as the central figure or facilitator of this team approach, using a system of sanctions and incentives to overcome the problems being encountered. Cultural competency, interdisciplinary education, and a deep commitment by all are hallmarks of a successful collaborative justice approach.
I am very proud that Santa Clara judges have been at the forefront of this revolution. Judge Stephen Manley is the state's most recognized drug court leader, and he frequently advises and consults with other courts and legislators about effective approaches to drug and mental health issues. Judge Manley recently started the first Veteran's Court in the state, as well as the first Parolee Reentry Court. In 1996, Judge Thomas Edwards founded the Juvenile Treatment Court. Judge Eugene Hyman started the first Juvenile Domestic Violence Court in the nation more than 10 years ago. In 2001, Judge Raymond Davilla started the first Juvenile Mental Health Court.
These programs began as a collaborative effort with the Probation Department, District Attorney's Office and Public Defender's Office, and Department of Alcohol and Drug Services. We learned a lot. We learned about dual diagnoses, and the need to bring in the County's Mental Health Department, and other community-based organizations devoted to youth law. We rely on multidisciplinary team screenings and reviews. We are very grateful to the Board of Supervisors and many County agencies that help us, and in turn, we provide assistance to other counties and states wishing to start programs in their jurisdictions.
In Dependency Court, Judge Yew presides over the Family Wellness Court, a program designed for pregnant women and parents with children three years of age and younger, whose use of methamphetamine and other substances have placed their children in or at risk for out of home placement. Intensive services are offered through collaboration with many community-based organizations and public agencies, with financial support through First 5 and a grant from the National Children's Bureau. We recently celebrated our two year anniversary and are pleased to report that we served over 250 children and their parents. This program has achieved remarkable success, where 80% of participants successfully regain and retain custody of their children and remain drug free.
Also in Dependency Court, Judge Shawna Schwarz handles our innovative Teen Court where she has a calendar dedicated to high risk teenagers in the foster care system that will "age out" and never be returned home before the age of 18. She ensures placement stability, school attendance, drug and alcohol interventions and emancipation planning in order to support their transition to adulthood and deter behavior that would be self-destructive. CASA, Legal Advocates for Children and Youth, the County Department of Family and Children's Services are a few of the supportive community collaborators to our Teen Court.
In 2002, we began the Family Law Treatment Court, a voluntary drug treatment program in the Family Division. We recently won the Kleps Award, a coveted award for innovation, for our partnership with the local First 5 Commission to provide a Family Law Treatment Court Coordinator to link participants with children under six with treatment services, provide parent and family support and monitor and reports family progress in Family Law Treatment Court.
Why does collaborative justice work? The words of a parent in the Family Law Treatment Court to Judge Susan Bernardini explain it best, "As you know when I first entered FTC my faith in the judicial system and Family Court was near zero...I (now) feel lucky to be in a county that has a program like Family Treatment Court. This is a program that allows people like myself to show that we can turn our lives around, and the FTC program affords us the ability to earn credibility...[Y]our wisdom and caring has impressed me. During the FTC hearings I watched the way you dealt with not only myself but the other members. I often think of how this program and people like yourself have positively impacted many families and children. I believe the ripple effect of this positive impact will be felt for generations in families such as mine. In closing, I also feel blessed to have had the opportunity to get to know you."
Judge L. Michael Clark, who now presides over Family Law Treatment Court, reports on common threads: people entering the program are bitter from prolonged litigation, they enter the program to regain unsupervised contact with their children, they find recovery hard, but as they progress, they "all display a similar peaceful and calm demeanor characteristic of persons advanced in their recovery, and all expressed their heartfelt appreciation for Family Law Treatment Court."
Clearly, the success of these programs is due to in large part to very dedicated people and the positive and supportive energy they generate. The condition of the buildings they occupy (I do not think these renovated locations merit the appellation "courthouse") impede their work. We are very grateful to the Santa Clara County Bar Association for the support for our plans to build a Family Justice Center Courthouse. By creating adequate space, and having our public and community based partners in the new courthouse, we believe we will be able to take our collaborative justice program to the next level. We hope to create an atmosphere that gives people hope, that allows them to envision possibilities, and provides the tools to allow them to achieve their highest potential.
For those of you who practice other fields of law, I hasten to add that the collaborative, problem-solving approach is reaching you as well. The human condition, and the anger, jealousy, fear, shame and other feelings and emotions associated with our existence, are the underpinnings of all disputes. Whether the issue is a partnership dissolution, employment dispute, or theft of trade secrets, people are involved and so are their feelings. Increasingly, we are turning to non-adversarial problem-solving approaches. In the civil division, we offer voluntary early mediation with a judge, as well other types of alternative dispute resolution programs.
As judges engaged in this ADR process, we seek to be active listeners, to understand both the stated and unstated factors underlying a dispute, and to help the parties generate potential options. Your assistance is critical. The legal profession plays a key role in the paradigm shift from adversarial role where there are winners and losers, to one where we all engage in collaborative problem-solving, seeking the input of other disciplines and expertise if necessary, and focusing on broader and sometimes extralegal solutions.
The revolution is here, and the Beatles would be happy to know that "it's gonna be better than all right."