The Lawyer has a Superior Opportunity of Being a Good Man

Applying Therapeutic Jurisprudence to Alternative Dispute Resolution Mechanisms

In his work "Notes for a Law Lecture," Abraham Lincoln declared, "Discourage litigation! Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often the real loser—in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There still will be business enough."

When Wanjiku needs legal aid, she will turn to a lawyer for help and/or guidance. However, considering a lawyer's personality, everything is carried out tactfully and with ulterior motives: money! For a lawyer, there is always a competition to win. Attention is drawn away from the client and moves to the lawyer. Wanjiku blindly agrees with everything the lawyer says because there’s a clear power imbalance. Wanjiku knows nothing about the law or how things are done, so she has no choice but to comply.

It is without a shadow of a doubt that the above-mentioned setbacks are most prevalent in litigation. Arguably, this is why alternative forms of dispute resolution are gaining traction and are recognized by the Constitution as per Article 159. Bearing in mind the challenges characterized by the formal system, Kenyans try to avoid court systems by opting for ADR, as they should! Even so, without disregarding the progress and positive impact ADR has brought to the Kenyan justice system, these tactful measures and disregard for clients' genuine interests still show up in ADR in more ways than one. For this reason, this article proposes that annexing Therapeutic Jurisprudence (TJ) to Alternative Dispute Resolution (ADR) will mitigate the weaknesses of the latter, and promote an even more effective conflict management process.

Mediation, for example, is the process in which a third party works with parties in conflict to help them change the quality of their conflict interaction from negative and destructive to positive and constructive as they explore and discuss issues and possibilities for resolution. The goal here is mutual agreement. Despite the fact that mediation is often considered neutral, the article posits that the very idea that there can be such a thing as absolutely neutral is utterly pervasive.

Mediators deem an agreement evidence of a successful mediation process, while its absence proves that the process and the mediator failed. Presumably, this is due to the pressure tactics and passive-aggressive evaluations employed by the parties involved. Consequently, this has anti-therapeutic results that undermine party autonomy. ADR and Therapeutic Jurisprudence share a common background. Both fields of the law were developed due to dissatisfaction with the justice system. They were also an attempt to mitigate the deficiencies of the adversarial legal system. They are both geared towards prioritizing the interests and personal growth of an individual. This is to create a conducive environment that cares about developing and improving relationships.

Christopher Slobogin posits that Therapeutic Jurisprudence is the use of social science to study the extent to which the law or its practice promotes the psychological or physical well-being of the people it affects. In essence, therapeutic jurisprudence provides a more comprehensive and humane way of handling legal matters. The study of therapeutic jurisprudence examines behavioral sciences to suggest means legal actors can exercise to perform their jobs with more efficacy. Therapeutic jurisprudence is not satisfied with mere neutrality and objectivity but with the promotion of psychological well-being.

It is quite unfortunate that, as Susan Bandes puts it, the law is imbued with emotion. However, it has done a relatively poor job of recognizing and protecting the actual relationship. Lawyers enjoy a high level of control over their clients in or outside court. For that reason, there is a need for unconventional, specialized, and innovative systems regarding lawyers' conduct in mediation processes in order to allow the active participation of their clients rather than vice versa.
We can start by implementing Therapeutic Jurisprudence as the philosophical foundation of any ADR process with the goal of producing non-anti-therapeutic results. Narrative and transformative mediation has significant potential in this regard as they facilitate individual empowerment. This enables disputing parties to grow calmer, clearer, more efficient, more organized, and more decisive. And if all else fails, they can just call in the dispute-solving robots!

By Nelly Maina. She is a law student at the University of Nairobi and she is passionate about mental health, international law, corporate law, and taxation matters.