Non-adversarial justice and the coroner's court: A proposed therapeutic, restorative, problem- solving model. Michael King. Faculty of Law, Monash University.
Faculty of Law, Monash University Research Paper No 2009/30
Non-adversarial justice and the coroner’s court: A proposed therapeutic, restorative, problemsolving model Michael King
This Paper can be downloaded without charge from the Social Science Research Network electronic library at: http://ssrn.com/abstract=no.1599339
www.law.monash.edu
Electronic copy available at: http://ssrn.com/abstract=1599339
This article was first published by Thomson Reuters in the Journal of Law and Medicine and should be cited as King, MS, “Non-adversarial justice and the coroner’s court: A proposed therapeutic, restorative, problem-solving model” (2008) JLM 442. For all subscription inquiries please phone from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at www.thomsonreuters.com.au/catalogue. The official PDF version of this article can also be purchased separately from Thomson Reuters. This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to Thomson Reuters (Professional) Australia Limited. PO Box 3502, Rozelle NSW 2039. www.thomsonreuters.com.au
Electronic copy available at: http://ssrn.com/abstract=1599339
Non-Adversarial Justice and the Coroner’s Court: A Proposed Therapeutic, Restorative, Problem-Solving Model Michael S King
Increasingly courts are using new approaches that promote a more comprehensive resolution of legal problems, minimise any negative effects that legal processes have on participant wellbeing and/or that use legal processes to promote participant wellbeing. Therapeutic jurisprudence, restorative justice, mediation and problem-solving courts are examples. This article suggests a model for the use of these processes in the coroner’s court to minimise negative effects of coroner’s court processes on the bereaved and promote a more comprehensive resolution of matters at issue, including the determination of the cause of death and the public health and safety promotion role of the coroner.
Non-adversarial or Comprehensive Approaches to Justice and Coronial Work When people approach authorities, their social standing and feelings of security within the group are on the line. They may have an experience that reaffirms their belief they are valued, protected members of society who will receive benevolence and consideration from the authorities when they need it; they may also have an experience that makes them feel less valued and protected than they would like to believe. Dealing with authorities clearly raises issues far beyond those connected with the issues to be decided.1 Over the last 30 years approaches have emerged that challenge conventional thinking about how the law, legal institutions and legal officials should act and how legal problems should be resolved. These approaches include therapeutic jurisprudence, restorative justice, alternative dispute resolution, preventive law, holistic law, problemsolving courts and collaborative law. Daicoff has called this development “the comprehensive law movement” while Freiberg has called it “non-adversarial justice”.2 This development includes a broad range of concepts and practices about the resolution of conflict and its underlying causes. Although they developed independently of each other, there has been some work comparing and integrating these approaches in theory and in practice within the justice system.
Senior Lecturer, Faculty of Law, Monash University. Geraldton Coroner/Magistrate 2001-2005. Perth Drug Court Magistrate, 2005-2007. My thanks to Andrew Cannon and Arie Freiberg for reading and commenting on an earlier version of this article. 1 Tyler T, Why People Obey the Law (Princeton University Press, Princeton, 2nd ed, 2006), p 175. 2 Daicoff S, “The Role of Therapeutic Jurisprudence Within the Comprehensive Law Movement” in Stolle, DP, Wexler DB and Winick BJ, Practicing Therapeutic Jurisprudence (Carolina Academic Press, Durham, 2000); Freiberg A, “Non-Adversarial Approaches to Criminal Justice” (2007) 16 JJA 205.
Electronic copy available at: http://ssrn.com/abstract=1599339
Generally these approaches emphasise the need for participants to a conflict being actively involved in processes directed at its resolution. This is in accord with procedural justice research that has found that people value being treated with an ethic of care and respect and being given the opportunity to explain their story to an attentive tribunal who demonstrably takes what they say into account.3 These approaches also emphasise individual empowerment and involvement in decision-making concerning the resolution of legal disputes to which the individual is a party. This principle is in accord with research finding that self-determination promotes wellbeing.4 Restorative justice, therapeutic jurisprudence, some forms of alternative dispute resolution, problem-solving courts and holistic law stress the need to address underlying issues to completely resolve legal problems. They see that those entering the legal system often have psychological and emotional issues connected with the legal problem that need to be addressed as part of the process of conflict resolution. They also emphasise the importance of the relationship between the legal professionals and the client/litigant and the necessity for the professionals to display personal skills, including listening, expression of empathy, properly explaining the situation to the client/litigant, and the use of positive reinforcement where appropriate as part of a comprehensive approach to resolving the legal problem. A principal reason why these approaches have emerged is dissatisfaction with the adversarial system. The dissatisfaction has arisen both in relation to its methods and its limited perspective of a legal problem and its resolution. In relation to the adversarial method, essentially critics assert that the adversarial system promotes a win-lose situation rather than a win-win situation, that it aggravates underlying conflict between the parties by pitting them against each other in court rather than collaboratively seeking to resolve the problem, that it is expensive and protracted and that it may aggravate rather than address underlying issues and problems concerning psychological well-being. In addition, traditionally the legal system analyses a factual situation, categorises it in terms of a particular area of law and then delivers a judgement as to what legal remedy (if any) should be ordered. It does not see or deal with other aspects of the problem. However the legal problem may be the tip of the iceberg. In a criminal case, the offender may have underlying substance abuse problems, unresolved trauma due to past victimisation or abuse, relationship problems, unemployment and a lack of life skills. The victim may have suffered psychologically and financially and may wish to confront the offender and explain the impact the crime has had upon him or her, to be involved in the legal resolution of the matter and to be paid compensation. Traditional legal processes have not been able to adequately deal with these aspects of the problem. However, the last 30 years significant aspects of adversarial legal processes have changed due to the emergence of these non-adversarial approaches as well as other influences 3
Tyler T, “The Psychological Consequences of Judicial Procedures: Implications for Civil Commitment Hearings” (1992) 46 Southern Methodist University Law Review 433; Tyler, n 1. 4 Winick BJ, “On Autonomy: Legal and Psychological Perspectives” (1992) 37 Villanova Law Review 1705.
such as community agitation for victim’s rights. Non-adversarial or comprehensive approaches have influenced the practice of most courts. Thus, mediation is a common feature of family and civil law cases and is increasingly used in criminal law cases. Problem-solving courts have emerged that seek to assist participants to address their underlying issues such as substance abuse, domestic violence, mental health, and parenting problems in the context of child welfare cases. They take a collaborative, therapeutic approach involving judicial case management. Many of these courts also draw on principles of therapeutic jurisprudence in their work.5 Therapeutic jurisprudence also influences the practice of courts exercising general criminal, civil and family law jurisdiction and tribunals of diverse types.6 Therapeutic jurisprudence is of broad application to the law, legal processes and legal actors such as judicial officers and lawyers in that it asserts that they can affect the wellbeing of those involved in them.7 It asserts that behavioural science findings can be used to minimise negative effects and enhance positive effects of legal processes, particularly where they involve therapeutic goals such as offender rehabilitation and the resolution of conflict. Judging techniques have been developed that apply therapeutic principles to promote more effective judging and the attainment of justice system outcomes.8 Restorative justice practices are used in the Australian legal system, depending upon the jurisdiction, either as a pre-court diversion program involving juvenile offenders, as a post conviction pre-sentencing option, or as a post conviction, post-sentencing program for victims and offenders. Restorative justice provides the opportunity for victims and perpetrators of harmful behaviour such as crime to discuss, through a mediated encounter what happened, why it happened and what is to be done to remedy the situation. There is a resonance between the needs of parties to coronial processes and issues addressed by non-adversarial or comprehensive approaches to justice. The coronial process itself is non-adversarial in nature, being an inquisitorial process. Coroners are not bound by the rules of evidence and generally can inform themselves in such manner as they think reasonable.9 Further, just as a victim to a crime may want an explanation as to 5
Hora P, Schma W and Rosenthal J, “Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System’s Response to Drug Abuse and Crime in America” (1999) 74 Notre Dame Law Review 439; Petrucci C, “Respect as a Component in the Judge-Defendant Interaction in a Specialized Domestic Violence Court that Utilizes Therapeutic Jurisprudence” (2002) 38 Criminal Law Bulletin 263. 6 For international material and a bibliography concerning therapeutic jurisprudence, see the website of the International Network on Therapeutic Jurisprudence at http://www.therapeuticjurisprudence.org viewed 28 March 2008. See also the Australian Therapeutic Jurisprudence Clearinghouse via a link at http://www.aija.org.au viewed 28 March 2008. 7 Wexler DB and Winick BJ (eds), Law in a Therapeutic Key (Carolina Academic Press, Durham,1996); Winick BJ and Wexler DB (eds), Judging in a Therapeutic Key (Carolina Academic Press, Durham, 2003). 8 Winick and Wexler, n 7; King MS, “Problem-Solving Court Judging, Therapeutic Jurisprudence and Transformational Leadership” (2008) 17 JJA 155. 9 Coroners Act 1997 (ACT) s47; Coroners Act 1980 (NSW) s 33; Coroners Act (NT) s 39; Coroners Act 2003 (Qld) s 37(1); Coroners Act 2003 (SA) s 24; Coroners Act 1995 (Tas) s 51; Coroners Act 1985 (Vic) s 44; Coroners Act 1996 (WA) s 41.
what took place and why it happened, so the family of a person subject to a coronial investigation may also wish to have such an explanation, particularly where the actions of an individual, individuals or an institution have brought about the death. They may also wish to tell the perpetrator exactly how the death has affected them. They may also desire that steps be taken to ensure that a similar event – a crime or death – does not happen again.10 This suggests an application of restorative justice in coronial work. Coroners’ work is intimately connected with wellbeing – a concern of therapeutic jurisprudence. Part of the coroner's role is to determine whether there are public health or safety issues arising out of the death and whether action needs to be taken to remedy any problems, particularly those that may cause future deaths.11 For example, if a fatal motor vehicle accident has been caused by faulty road conditions, then the coroner will recommend improvements. If a faulty product has caused the death, then the coroner may make recommendations concerning the availability or manufacture of that product or that further investigation concerning the product be undertaken. The endpoint of the coronial process provides the bereaved with an explanation concerning the cause of death and offers an opportunity for closure.12 Moreover, the dead person’s family suffer grief and, depending upon circumstances of the death, significant trauma. The coronial process can cause further trauma to family members.13 A protracted delay between the death and the coronial finding concerning the cause of death, a lack of information concerning the process and reasons for delay and the confronting nature of evidence at an inquest can cause the family angst. Biddle found that feelings such as anger, shame and guilt may be aggravated as a result.14 Her study of suicide inquests found that a lack of preparation and communication prior to an inquest aggravated families’ difficulties. The judicial atmosphere – that induces shame and stigma – media activity, invasion of privacy and the giving of evidence were sources of trauma for them. A death may also affect the dead person’s friends, employer and workmates. In addition, other parties involved in the circumstances leading to the death – such as the driver of another motor vehicle, a workmate using equipment that caused the death, staff who treated a person dying in their hospital, other people involved in a common activity (eg, sport) when the death occurred – will also be affected personally and perhaps 10
Victorian Parliament, Law Reform Committee, Coroners Act 1985: Final Report (Government Printer, Melbourne, 2006). 11 Coroners Act 1997 (ACT) s 52; Coroners Act 1980 (NSW) s 22A; Coroners Act (NT) s 34; Coroners Act 2003 (Qld) s 46; Coroners Act 2003 (SA) s 25 – the section is limited to making recommendations that prevent or reduce the likelihood of a recurrence of the event under investigation; Coroners Act 1995 (Tas) s 28; Coroners Act 1985 (Vic) s 19; Coroners Act 1996 (WA) s 25. 12 Freckelton IR and Ranson D, Death Investigation and the Coroner’s Inquest (Oxford University Press, South Melbourne, 2006), p 534. 13 Harwood D, Hawton K, Hope T and Jacoby R, “The Grief Experiences and Needs of Bereaved Relatives and Friends of Older People Dying Through Suicide: A Descriptive and Case-Controlled Study” (2002) 72 Journal of Affective Disorders 185; Biddle L, “Public Hazards or Private Tragedies? An Exploratory Study of the Effect of Coroners’ Procedures on those Bereaved by Suicide” (2003) 56 Social Science & Medicine 1033; Victorian Parliament, Law Reform Committee, n 10. 14 Biddle, n 13.
professionally by the death and the outcome of the case. Delays in the coronial process and a lack of information are potential sources of stress for them as well. Further, the professionals involved in the coronial process can be affected by particular cases and court processes. Therapeutic jurisprudence has begun to influence the work of coroners. In 2003 the Geraldton magistrate/coroner described how therapeutic jurisprudence influenced the way he wrote his decisions: Previously, he had always referred to the dead person as "the deceased" and their background only referred to in so far as it related to the cause of death. Now, he always refers to the person by their formal title and begins with a short paragraph containing personal details placing the person in a social and family context. The thinking behind the change was that the family would better appreciate reasons that acknowledged the humanity of their loved one than those that appeared to reduce the person to an object.15 There has been some recent work exploring how therapeutic jurisprudence could be applied in various areas of coronial work.16 Took and Johnstone suggested that therapeutic principles such as party participation in the process, collaboration, timely provision of information to the parties and problem-solving can be incorporated into the work of coroners court. Freckelton suggested the potential application of therapeutic jurisprudence in coronial court work – particularly in the form of more sensitive decision writing by coroners, appropriate opportunity for the family to express their distress and grievances in the process, clear communication between the court and the family during the process, the provision of appropriate counselling and support for the family throughout the process and better accountability mechanisms in relation to the implementation of coroners recommendations relating to public health and safety.17 Freckelton also stressed the need for a balance between “rigorous, evidence-based decision-making (such as by coroners) and the achievement of collateral health oriented objectives.”18 Therapeutic jurisprudence recognizes that therapeutic values do not outweigh procedural fairness requirements and may not outweigh other legal system values.19 This principle is particularly important in coronial work where the interests of a number of parties may need to be accommodated. Therapeutic concerns must therefore be balanced along with procedural fairness.
15
King MS, “Applying Therapeutic Jurisprudence in Regional Areas: The Western Australian Experience” (2003) 10(2) eLaw Murdoch University Electronic Journal of Law at [49], http://www.murdoch.edu.au/elaw/issues/v10n2/king102.html, viewed 28 March 2008. Freckelton and Ranson make the sensible suggestion that a therapeutic approach would be to ask the family how they would like their loved one referred to: Freckelton and Ranson, n 12, p 535. 16 Freckelton and Ranson, n 12; Took G and Johnstone G, “Therapeutic Jurisprudence in the State Coroner’s Office” State Coroner’s Office, Victoria, May 2007 (unpublished paper); Freckelton I, “Death Investigation, The Coroner and Therapeutic Jurisprudence” (2007) 15 JLM 242. 17 Freckelton, n 16. 18 Freckelton, n 16 at 248. 19 Wexler and Winick, n 7.
Freckelton and Ransom have proposed more sensitive use of evidence that may be distressing to bereaved families at inquests and having the family decide how the dead person is to be referred to in the coronial process. Victorian State Coroner Graeme Johnstone made practical suggestions concerning adding “the human dimension” to the coroner’s work including enhancing information provision processes to the family, having a case manager for each case, minimising case delays, sensitive communication from the coroner’s office, early intervention processes for the family and using less formal processes at inquests.20 A Problem-Solving Approach in the Coroner’s Court: A Proposed Model Coronial cases can range from simple, non-controversial matters that can be disposed of by means of a decision in chambers based on the police investigation file through to matters involving complex issues of fact, multiple parties with competing interests and public health or safety concerns that may require a lengthy inquest to resolve. Over 90% of cases, however, are dealt with by decision in chambers.21 This article suggests that there should be two tracks for coroner's court cases. The two tracks are designed on the basis of the resources required – human, financial, and physical – to take the case through to completion. For the sake of the parties involved, it is important to assign names to each track that do not imply that in assigning the case to a particular track the death is considered less important than others. The proposed names in this model are general track and complex track. The general track would include matters that are not destined to go to an inquest while the complex track would include cases are likely to require an inquest. After the death has been reported to the coroner's court then it is proposed that the case be assessed by the coroner’s office for allocation to either of the two tracks. As it is not always possible to determine early in a coronial investigation whether an inquest will ultimately be required, it is proposed that the case management process should be flexible enough to accommodate the possibility of a matter being transferred from one track to another according to the needs of the case. However, coronial legislation generally prescribes that some cases must involve an inquest – such as deaths in custody or institutional care – and leaves it within the discretion of the coroner whether an inquest should be held in other cases. When the death has been reported, a support officer should be allocated to the family of the dead person to be a point of contact between the family and the court and provide support services for the family from the commencement to the end of the process. It is proposed that this officer serve a similar function for the family as a victim support officer does in relation to a crime victim. The officer would also work in conjunction with counselling services offered by the court and be present at any inquest to support the 20
Johnstone G, “Adding the Human Dimension: The Future and a Therapeutic Approach to the Independent Work of the Coroner” Paper delivered to the Asia-Pacific Coroners Society conference, Hobart, 31 November – 2 December 2007. 21 Victorian Parliament, Law Reform Committee, n 10, p 227.
family, if the family so wish. The support officer would inform the family about coronial processes (including case management processes) and keep them informed in relation to the progress of the case. They would not usurp the role of the family’s lawyer. In the general track, although intensive case management would not be required, processes suitable for promoting parties’ therapeutic needs should still be available – including counselling and other support services, restorative justice conferences and the opportunity for family members or others intimately involved in relation to the death to provide a statement to the coroner concerning effect of the death and to express any grievances. Further, interested parties should also be able to inspect the evidence made available to the coroner concerning the the death and to make submissions to the coroner if warranted. The complex track would involve intensive case management by a multidisciplinary team chaired by the coroner. Members of the team would include a psychologist or counsellor based at the coroner's court, coroner's assistant or counsel assisting the coroner, family members representing the family (if they so wish), other parties with a direct interest in the investigation (such as those who may be subject to an adverse finding), lawyers acting for the parties and any other professionals who may assist in the case management process in the particular case. In determining the case management processes to be used, the interests of the parties directly involved such as the family of the person who died and those against whom an adverse finding may be made should be considered. However, there are also others who may have an indirect interest in the proceedings such as insurers, regulatory authorities, media and the general community. A coronial finding may have implications for insurance practice, future regulation of particular industries and/or be of interest to the general community. These factors need to be taken into account according to the needs of the case. Case management would take place through a series of directions hearings. It would address the procedural matters relating to the inquest and any ancillary matters leading up to the inquest as well as the parties’ therapeutic needs. Thus, as in case management processes in civil, family law and in some criminal cases, processes can be used to determine what issues are in dispute, whether there can be any agreed statement of facts, whether expert witnesses need to give evidence and if so whether the parties agree as to which expert witnesses should be called, whether they are any vulnerable witnesses who may require special arrangements – such as giving evidence via video link – whether directions concerning the cross-examination of particular vulnerable witnesses is required, the estimated length of the inquest and the allocation of a hearing date. The case management process could also explore whether mediation may help the parties reach an agreement concerning issues in dispute. In addition, issues such as the appropriateness of restorative justice conferences, whether further support services are needed, whether the family members wish to make statements about how the death has affected them and the form in which those statements are to be made – whether in writing
or orally and what sort of hearing would be needed for oral statements to be made – could be considered. The focus at case management meetings would be on a collaborative rather than an adversarial approach. The coroner would encourage and actively seek input from each of the parties in relation to the relevant issues. The aim would be to promote decision by consensus rather than the coroner imposing a decision on the parties. Choice of venue is an important consideration in relation to promoting a collaborative approach. An informal venue such as a conference room would generally make the parties more at ease and willing to engage in dialogue than a courtroom. However, there must necessarily be limits to case management processes and to whether a collaborative decision will be appropriate. The coroner must in any event promote the integrity of the process and the interests of the public in ascertaining the cause of prescribed deaths and suspicious deaths generally and in determining whether there are issues of public safety and health that may necessitate remedial action being taken. Thus, if the coroner considers that an aspect of the parties’ agreed statement of facts could not be substantiated on the evidence, the coroner would need to raise this issue with them in the case management meeting. If the issue cannot be resolved then the coroner may well need to direct that the issue be determined through the conduct of an inquest. If such a decision is made then it is important that the coroner recognize each party’s position, acknowledge what each party has said relation to the issue, demonstrate that he or she has treated it with due deference and give reasons for the decision. This case management proposal suggests an amalgamation of processes used in general case management in civil, family and some criminal cases with problem-solving case management used in problem-solving courts. How then should case management begin in coronial matters that are likely to go to an inquest? After all, in such cases the investigation is likely to take many months. What case management can take place in the absence of an investigation file setting out the matters at issue? It is suggested that involving the parties in a case management process early in the coronial process can bring benefits both in terms of the investigatory and other coronial processes and their therapeutic impact upon the parties. Thus, the first directions hearing could be listed within weeks following the completion of any postmortem examination. While all of the issues may not be apparent at that stage, the directions hearing could focus on matters that are of concern to the parties and which could be passed on to the investigating officers to investigate. Further, it could explore the parties’ therapeutic needs. It could give the coroner the opportunity of explaining the case management process and how the case is likely to proceed to the parties. Having a directions hearing at this stage demonstrates to the parties that the coroner's court values their input and wishes them to participate in the process. It can also help to dispel any perception by the parties that the court is keeping them out of the loop concerning case developments. It demonstrates to the parties the court’s active interest and concern in the case and in its impact upon them. Any other procedural matters could
be dealt with at that stage and the matter adjourned to a further directions hearing some months ahead (or as needed) to monitor the progress of the investigation, to answer questions and to provide any further directions that may be needed. Once the investigation has been completed, then a further directions hearing would be listed which would explore what procedural directions may be required concerning the conduct of the inquest – should the matter still require an inquest. These directions can help to limit the time needed for the inquest, delineate the issues in dispute and determine processes that promote the fact finding role of the court and limit any negative impact of the inquest upon the well-being of the parties involved. Thus this kind of case management can promote both cost-effectiveness and therapeutic outcomes. As well as promoting the coronial investigation’s overall purpose, this approach aims to demonstrate the court’s ethic of care towards the parties and the community. It promotes party voice, validation and respect. It also upholds the parties’ autonomy. In accord with Tyler’s procedural justice findings, these processes involve the court affirming parties’ status as citizens who deserve to be treated with respect.22 For the proposed case management process to work properly, the parties need to agree to take part and should be adequately prepared. The proposed family support officer should in a separate meeting prior to the case management process commencing discuss the process with the family, outline the kind of issues that can be raised at meetings, describe appropriate forms of communication in such a forum and those that would not be (such as verbally attacking other parties) and indicate to the family that they would be entitled to be represented by a lawyer at a case management meeting. Some families may be too traumatised or otherwise unmotivated to be involved. In such an event, a lawyer would still represent the family at such meetings. Further, if the family is unrepresented, then the family’s support officer could attend the case management meeting to convey any concerns raised by the family but not to act as the family's lawyer. The Role of Mediation There are diverse definitions of mediation but in general terms it is a process whereby parties to a dispute are assisted to reach an agreement for its resolution by an independent and impartial person. Commonly courts use mediation to provide the parties with an opportunity of settling issues in dispute and resolving litigation and thereby avoiding an adversarial trial. This option saves the parties the time, cost and psychological demands involved in the trial. It is also cost-effective for the court system, promoting more effective case processing. Of course, the coronial process is not adversarial although there may be competing interests involved. It is an inquisitorial process. The aim of the process is not to obtain a settled outcome as such or to deliver a judgement that may validate the legal rights and obligations of the parties, but rather to ascertain the circumstances of the death and to determine whether there are any public safety or health issues involved. It is not for the parties to displace the responsibility of the coroner to fulfil those statutory duties. 22
Tyler, n1.
Still, it is suggested that it is open to the court to use mediation to see whether the parties can agree on at least some of the facts and to narrow the matters at issue. The question arises as to what form of mediation to use. Various methods of mediation are practised and differing ways of characterising them have been presented. 23 In a useful model, Riskin asserted that one can analyse the different forms of mediation in terms of their goals and processes.24 The goal of mediation ranges from addressing specific issues of parties such as what one should pay to another to broader issues facing the community, such as social problems. The middle range addresses parties’ interests and possible transformative processes in relation to their relationship such as greater understanding of and acceptance of the other. The process of mediation ranges from facilitative to evaluative. While evaluative forms of mediation involve guidance from the mediator as to appropriate grounds for settlement based on an assessment of the legal or other merits of the case, facilitative mediation focuses on assisting the parties to clarify the issues dispute and seeing whether they can agree on an outcome. Although some mediators prefer a particular form of mediation, others may vary in their approach in terms of its narrowness and whether facilitative or evaluative methods are used. The evaluative form of mediation has potential drawbacks in a coronial situation. When the parties are particularly emotionally vulnerable, an evaluative form of mediation may place pressure on them to agree to particular alternatives to which they have no passionate commitment and, indeed, to which they may object strongly. Evaluative mediation also carries the risk of the mediator being seen by a party to be lacking impartiality thereby hindering the attainment of agreement.25 This has the potential to create trauma for the parties involved. For these reasons, at the outset, a facilitative form of mediation may be more therapeutic and in harmony with the goals of the coronial process than evaluative mediation. Taking this approach, the coroner may encourage a discussion whereby communication between the parties is enhanced, issues in dispute identified and options considered by the parties. The coroner may assume a facilitative role to see whether agreement could be reached. If this approach does not work then, the coroner could explore whether an evaluative approach to mediation is justifiable having regard to its potential therapeutic implications and the evidence in the case. If the mediation is unsuccessful then the coroner would make directions for the matter to be listed for a hearing on the evidence. This section assumes that a coroner could be involved in the mediation of issues between the parties. Judicial mediation has been considered in the context of civil proceedings. The literature has highlighted potential constitutional, procedural and ethical issues of a 23
Riskin LL, “Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed” (1996) 1 Harvard Negotiation Law Review 7. 24 Riskin, n 23. 25 Riskin, n 23 at 44.
judicial officer being involved in mediation. The constitutional issue relates to whether a judicial officer acting as mediator constitutes a breach of Chapter III of the Constitution of the Commonwealth of Australia involving a compromise of the institutional integrity of the court or the conferring of impermissible functions on the judicial officer. Chapter III of the Constitution has been held to apply to state courts but only those courts that have been vested with federal jurisdiction: Kable v DPP (NSW) (1996) 189 CLR 51. As coroners exercise state jurisdiction only there is no constitutional issue. Some commentators see no problem with a judicial officer conducting a conference between the parties and counsel in court prior to trial to see if a case can be settled but consider the involvement of judicial officers in mediation potentially compromises their position as impartial fact finders and may compromise the institution of the court.26 Cannon suggests that judicial skills are not suited to facilitative mediation and that the temptation for the judicial officer will be to stray into providing an evaluation as to the merits.27 Further, it is suggested there is a risk that a judicial officer will be seen as biased when engaging in evaluative mediation. Other commentators see no inconsistency between mediation and the judicial role. Justice Moore notes that both mediators and judicial officers are required to be impartial and that in any event, the mediation function is likely to be but a subordinate role of the judicial officer. He has suggested that judges can act as mediators provided that procedural safeguards have been put in place, such as the judge who mediates the dispute not presiding at trial.28 Landerkin and Pirie, who are in favour of judicial mediation, suggested that qualities that the Supreme Court of Canada attributed to a judge – “impartiality, independence, integrity, public respect and confidence, good judgement, a pillar of the process, serving ideals of Justice and Truth, irreproachable conduct, restraint, propriety, decorum, humanity, unique” – “might easily describe the mediator”.29 In any event, the judicial role is changing. The introduction of case management, problem-solving courts, therapeutic jurisprudence and Indigenous sentencing courts have meant that judicial officers are becoming more involved in processes aimed at the resolution of disputes.30 Judicial involvement in mediation is a part of this development. Further, as Sourdin notes, practice seems to be overtaking objections in that a growing number of judges and tribunal members are involved in mediation.31 Although these developments have been mainly at the federal level in Australia, recently the Attorney General of Victoria announced the commencement of judicial mediation in that state.32
26
Cannon A, “What is the Proper Role of Judicial Officers in ADR?” (2002) 13 ADJR 253; See also: Sourdin T, Alternative Dispute Resolution (Law Book Co, Pyrmont, 2nd ed, 2005), pp 110-116. 27 Cannon, n 26. 28 Moore M, “Judges as Mediators: A Chapter III Prohibition or Accommodation?” (2003) 14 ADRJ 84. 29 Landerkin HF and Pirie AJ, “Judges as Mediators: What’s the Problem with Judicial Dispute Resolution in Canada” (2003) 82(2) Canadian Bar Review [online]. 30 Landerkin and Pirie, n 29: King MS and Wager J, “Therapeutic Jurisprudence and Problem-Solving Judicial Case Management” (2005) 15 JJA 28 at 29. 31 Sourdin, n 26, p 113. 32 Fyfe M, “Judgement Day Looms for Overloaded Legal System” Sunday Age, 4 May 2008, p 11.
Part of the development of the judicial role – particularly in problem-solving courts – has been the exercise of interpersonal skills, especially those associated with motivating parties to engage in positive behavioural change. It is suggested that similarly the judicial role can adapt to the approach required to engage in facilitative or evaluative mediation.33 As noted, the coroner’s role differs from other judicial roles in the common law system in that it is inquisitorial and coroners have greater control over the fact-finding process than in other kinds of court cases. But coroners still need to be mindful of procedural safeguards to protect the integrity of the coronial process. It is suggested that providing the coroner is trained in mediation, the overall purpose of the coronial process is not compromised by the mediation and proper procedural safeguards are put in place that protect the interests of the parties – such as the coroner conducting a mediation not also conducting an inquest in the matter – then a coroner can act as a mediator. In relation to the purpose of the coronial process and the statutory duties of a coroner, a coroner should not accept an agreed statement of the facts if it conflicts with the evidence before the court. Another alternative to mediation by a coroner is to bring in other mediators or to have trained mediators as members of the court staff. However, an advantage to having a coroner involved as a mediator, is to demonstrate the level of commitment the coroners have to bringing about a proper outcome for all concerned. Restorative Justice in Coronial Cases Restorative justice is an umbrella term for a number of processes that have developed over the last 20 years, some of which have been influenced by practices in indigenous cultures or cultures of earlier times.34 Three main forms of restorative justice processes exist: victim offender mediation, family group conferencing, and healing or sentencing circles. More recently, the term “restorative justice conferencing” has emerged to describe approaches that endeavour to draw on the strengths of each to address any weaknesses of the individual processes.35 Victim offender mediation originally referred to an encounter between the perpetrator of harm and the victim with the aid of a mediator. Occasionally support people or family members were also present. Family group conferencing – which drew on Maori cultural practices – involves larger meetings where extended family were also present. Healing circles – drawing on Native American practices – involve victim, perpetrator, families of each and community representatives meeting around the circle. Some contemporary restorative justice approaches use a smaller meeting as in victim offender mediation to begin with followed by a larger meeting involving families and community representatives. Restorative justice involves a process whereby the perpetrator and victim of harmful behaviour meet together to discuss what happened, why it happened and how to make 33
King, n 8. Umbreit MS, The Handbook of Victim Offender Mediation (Jossey-Bass, San Francisco, 2001); Braithwaite J, “Restorative Justice: Assessing Optimistic and Pessimistic Accounts” (1999) 25 Crime and Justice 1. 35 Umbreit, n 34, p 303. 34
things right.36 The encounter between perpetrator and victim allows the victim to gain an explanation for the perpetrator's behaviour, to gain a greater understanding as to why the harmful behaviour occurred and to seek suitable recompense. For the perpetrator, it offers an opportunity to explain why the conduct took place, to describe any extenuating circumstances, to offer an apology to the victim and to offer to make restitution. In criminal cases, it may also involve the offender agreeing to participate in rehabilitation programs or to undertake unpaid community work. Restorative justice meetings are said to promote healing for the parties involved, to bring some kind of closure for them and to help them move on with their lives. While some restorative justice advocates are enthusiastic about the healing potential of restorative justice conferences, it is important to place that healing in perspective.37 Participation in a restorative justice conference does not guarantee that the parties' healing will be completed at the end of the conference. Indeed, parties may well need the assistance of other professionals to promote the resolution of the healing process. Still, research suggests that participants in these conferences do experience positive benefits in the direction of healing and closure. For example, victims attending these conferences have reported high levels of satisfaction with the process, reduction in feelings of anger towards the offender and in levels of fear of re-victimisation as well as a reduction in posttraumatic stress symptoms.38 Restorative justice fulfils the need of some victims to gain greater meaning and understanding of the event and to confront and make clear to the perpetrator just how much his or her actions have affected the victim. This is the case in even the most serious of situations such as where the victim has been subjected to significant violence such as sexual assault or where there has been a murder.39 Indeed, in the United States restorative justice processes have been used in murder cases after the perpetrator has been convicted and is serving a prison term or is awaiting execution.40 The conference between the victim’s family and the offender then takes place within the prison. Coronial cases often involve evidence of harmful behaviour that has led to the death of a person. In this situation family members can be seen as the victims. Depending upon the circumstances of the case, the “perpetrator” will have been, for example, the driver of a motor vehicle that caused a fatal accident, an employer who maintained an unsafe workplace, a health professional involved in the treatment of the dead person who may have been negligent, or the person who murdered the dead person. Just as in the US homicide cases referred to above, family members whose loved one is the subject of a coronial investigation may have a need to confront the person who was directly or 36
Zehr H, Changing Lenses: A New Focus for Crime and Justice (Herald Press, Scottdale, Penn, 3rd edition, 2005). 37 Daly K, “Restorative Justice: The Real Story” (2002) 4 (1) Punishment & Society 55 at 66-73. 38 This research is summarized in: Sherman LW and Strang H, Restorative Justice: The Evidence (Smith Institute, London, 2007), http://www.smith-institute.org.uk/pdfs/RJ_full_report.pdf accessed 28 March 2008. 39 Umbreit, n 34. 40 Umbreit, n 34; Umbreit MS and Vos B, “Homicide Survivors Meet the Offender Prior to Execution: Restorative Justice Through Dialogue” (2000) 4 Homicide Studies 63.
indirectly responsible for the death, to obtain an explanation of their conduct and to obtain an apology. Not all victims have this need to confront the person involved. Some may not have any wish to deal with the person in any way at all. Everyone has their own way of dealing with grief and loss. Thus, coronial cases would appear to be eminently suitable for the application of restorative justice processes – subject to issues concerning timing and process to be discussed below. Restorative justice processes in such circumstances offer the family and perpetrator the opportunity of meeting in a safe, non-adversarial environment, of listening to other people’s experience of how the situation has affected them, of telling their own story and expressing their own feelings about this situation that may well have affected them deeply on different levels of their life, and, where possible, of reaching an agreement as to any remedial measures to be taken. As in other restorative justice conferences, it offers the possibility of healing and closure to the parties. However, there are issues as to proper screening of the cases to determine suitability, the parties' autonomy, proper preparation and support of the parties if a conference is to take place, the availability of properly trained mediators, the determination of the kind of conference or conferences to be held, proper processes to be used during the conference and adequate follow-up. If these issues are not addressed, then there is a significant risk of retraumatisation of the parties, a lack of protection of their procedural rights and their loss of faith in the integrity of the coronial process.41 There is ample evidence of conferences that have gone terribly wrong because one or more of the factors mentioned above have not been properly addressed.42 Thus, in victim offender mediation in criminal cases, coercing an offender to be involved is more likely to promote recalcitrance rather than a repentant attitude and therefore most likely traumatise the victim. Pressure on a victim to participate in a conference can be upsetting for them. If the parties are not prepared as to the nature of communication to take place at a conference, proper ways of expressing their feelings and wishes and how to interact with the other parties then there is a risk that the conference will depart from its intended process and cause frustration to all involved. Further, the mediator needs to be sensitive to the kind of processes that should be used. Thus, a settlement-driven process used commonly in civil mediation is entirely unsuitable in a restorative conference, where dialogue and open exchange of views and feelings needs to be encouraged. The result is that if restorative justice conferences are to be used in conjunction with the coronial process then the cases need to be properly screened for suitability. While the benefits of restorative justice processes should be clearly explained to the parties there should be no pressure placed on them to participate and the process needs to be properly resourced and staffed and procedural safeguards put in place in order for it to work properly and to promote beneficial outcomes for all concerned.
41
These concerns have arisen in relation to restorative justice conferences generally: Umbreit, n 34; Braithwaite, n 34. 42 Braithwaite, n 34.
There is also the issue of timing of restorative justice conferences in coronial cases. In criminal cases that come into the court system, restorative justice conferences commonly occur post-conviction and prior to sentencing – as is done, for example, in Western Australia where a court can order a mediation report prior to sentencing adult offenders – or following sentencing – as is done in some jurisdictions in the United States and in New South Wales.43 In such cases a court has already settled the issue of liability. A restorative justice conference is inappropriate where there are factual issues in dispute. The restorative processes are unlikely to be engaged in such circumstances and there is a risk that any conference will descend into verbal attacks and blaming. Thus, in a coronial case, where the facts are not in dispute and issues of responsibility have been settled then a restorative justice conference could be considered. Following the coroner's decision is the most obvious time for the conduct of a restorative justice conference. After handing down the decision, the coroner could explore with the parties the possibility of a restorative justice conference. Another possible situation would be where the parties have agreed on the facts and responsibility prior to the coroner handing down a decision. For example, where at a case management conference the parties indicate agreement as to the facts, the coroner could raise the possibility of a restorative justice conference. In each case, if the parties agree to explore this possibility, then the coroner would make the appropriate directions concerning the assessment of the matter for a restorative justice conference. But it is preferable that the conference be held after the coroner has handed down a decision to avoid the possibility of confusion and trauma to the parties. Even where the coroner accepts the parties’ agreed statement of facts, there may be differences as to inferences to be drawn from the facts. It is best that these issues are resolved prior to rather than during a restorative justice conference. If there are other legal proceedings relating to the death, the parties should seek legal advice before agreeing to participate in the conference. If the coroner considers the agreed statement of facts cannot be accepted on the evidence, then an inquest will need to be held and a restorative justice conference should not be held until the coroner has delivered a finding in the matter. It is common in restorative justice conferences for parties to reach an agreement as to what means of reparation is to be made by the perpetrator to the victim. The coronial process is not concerned with determining issues of civil or criminal liability or with parties’ arrangements concerning compensation – although parties may use the coronial process for fact finding for use in relation to compensation claims or other proceedings. The court is concerned with the cause of death and any related issues of public health and safety, rather than money. The fact that the parties may reach an agreement concerning compensation should not, however, be a bar to the coroner's court, in appropriate circumstances, referring parties to 43
In some cases a court can refer a case to a restorative justice style process without plea of guilt being entered. See, for example, Young Offenders Act 1994 (WA) s 28.
a restorative justice conference. The court is not directly involved in the restorative justice conference and is not compromised if the parties discuss and reach agreement on matters not for the court’s determination. However, given that the parties can potentially agree to wide-ranging actions by way of recompense it is possible that, for example, where the perpetrator is a public institution or employer that the recompense agreed could involve making procedural or structural changes in the institution or workplace to prevent similar fatalities in the future. This, of course, is an area of interest to the coroner given that it is part of the coroner’s role to draw attention to any public health or safety issues arising from the case and to make appropriate recommendations. If a restorative justice conference is held after the coroner has made a finding, then the conference offers the perpetrator the opportunity of explaining how the coroner's recommendations relating to public health or safety are being or have been implemented. If the perpetrator disagrees with the coroner's recommendations then this is a potential point of conflict between the family and the perpetrator. The family could well take umbrage that the perpetrator has ignored the coroner's recommendations. This issue and its potential to promote conflict would need to be explored by the mediator in assessing whether the conference should proceed or not. It is of course possible to conduct a series of conferences, with one dealing with the matters particular to the dead person, the family and others involved. Here only the immediate parties involved and a mediator would be present. Another conference could be held to address any public health or safety concerns arising out of the case. That conference could have the participants of the first conference and representatives from agencies and community organizations with a direct interest in the subject matter, any relevant regulatory authority and the coroner. Multiple restorative justice processes have been used, for example, in North America in relation to resolution of disputes in Indigenous communities.44 Statement by the Family Although a death can be considered in a narrow sense to be simply the facts involved in the person dying, the death commonly involves the loss of a member of a family and wider social network and related consequences such as grief, trauma, loss of a principal breadwinner and family conflict regarding the estate. This is how the family and friends of the dead person are likely to see it. It is preferable to consider the death in its overall context rather than to deal with just one aspect of it. As noted above, according to procedural justice research people come to court seeking the court’s validation of them as good citizens.45 They wish to be able to tell their story, to have it taken into account by the court and to be treated with respect, with an ethic of care. The coroner’s court can give them validation as family members who have suffered 44
McCold P, “Primary Restorative Justice Practices” in Morris A and Maxwell G (eds) Restorative Justice for Juveniles: Conferencing, Mediation and Circles (Hart Publishing, Oxford) p 52. 45 Tyler, n 1.
significant loss as a result of the death by giving them an opportunity to explain the effect of the death and to air any grievances and by the court acknowledging what they have said. It also demonstrates to the family that the court’s work is not simply a technical procedure but that it has a human dimension. The family should have the opportunity to tell the court about the impact of the death either orally or in writing, if they so wish. The support person and the family’s lawyer (if any) should discuss the option with the family and, if the family agrees, prepare the family for the giving of the statement. Guidance could be given in general terms as to the number of people to be involved and the proper manner of expression and material that could be included. For example, the support person would inform the family that the statement would not be a proper vehicle to launch a personal attack on others involved in the case or other family members or to address issues that are yet to be determined by the court. If an oral statement is to be given, then the family representative could practice giving the statement with the support person and use the court venue if appropriate. The court should also carefully consider the venue for the giving of any oral statement. A court or conference room are possible options. The family’s wishes as to venue should be accommodated if possible. The coroner should acknowledge what the family has said concerning the effect of the death following the giving of any oral statement and in the reasons for decision, if they do not object. Here is the court’s opportunity to express empathy. Winick observes that empathy has both cognitive and emotional aspects: the understanding of the person’s situation and sharing in the feelings of the person.46 Both should be reflected in the court’s response. Even though this process has not traditionally been a part of coronial work, it is consistent with the overall trend in the law and court procedure to the use of more therapeutic processes. It is in harmony with the overall purpose of the court. Implementation of a Problem-Solving, Therapeutic, Restorative Model A hallmark of problem-solving courts is the collaboration that takes place between the court and the particular community related to the court’s objective – whether it is to resolve substance abuse problems, prevent domestic violence, promote the wellbeing of with mental health problems or addressing neighbourhood justice problems – in order to achieve that objective. Local treatment and support agencies are commonly involved in providing services to the court’s participants and may work with the court in determining the best way to address the particular problems. It is common for the court’s judicial officer to visit and meet with those agencies. Agency representatives may be members of the steering committee of the problem-solving court. The advantages of this approach are that the community is intimately involved in the resolution of community problems rather than delegating the problem-solving to the court and related justice agencies, there is potentially greater community acceptance and support for the result and it can dispel the perception that the court is distant from and out of touch with community concerns.47 It 46 47
Winick, n 4 at 1069. King MS, “What Can Mainstream Courts Learn from Problem-Solving Courts?” (2007) 32 Alt LJ 91.
also gives the court the opportunity of gaining from the creative input from professionals involved in the field. A coroner’s court/community collaboration would be a useful approach to implementing the model proposed in this article. Some coroner’s courts already collaborate to a significant degree with other organizations. Took and Johnstone have noted that the Coroner’s Court of Victoria has been a leader in taking a collaborative approach, working with agencies such as the Victorian Institute of Forensic Medicine, police, WorkSafe, EnergySafe, VicRoads, the Transport Accident Commission and those involved in the investigation of fires.48 It promotes greater efficiency in disposing of coronial cases and enhances the potential for the determination and implementation of reform measures to prevent future deaths. Here the proposed collaboration involves establishing a steering committee to advise on the implementation and ongoing operation of the therapeutic, restorative, problemsolving approach involving the court and representatives from forensic, investigatory, legal, court counselling agencies/professions as well as representatives from community organizations such as those involved in providing support services to the bereaved. It would be useful to have the involvement of those delivering restorative justice and mediation services as well as those familiar with therapeutic jurisprudence. Here the input is not simply in relation to the content of but also the processes to be used in a case. Further, according to the needs of the case, other specialist agencies could also be involved in the case management process used by the court – such as road safety authorities where appropriate in motor vehicle fatalities. This kind of approach was taken in relation to the establishment and operation of the Geraldton Alternative Sentencing Regime and the Collingwood Neighbourhood Justice Centre.49 Finally, the coroners, support persons and other professionals involved in the process – including lawyers – need the proper skills to implement the therapeutic, collaborative, problem-solving case management process. Interpersonal skills including sensitivity to the feelings of others, awareness of one’s own feelings and their effect, the ability to express empathy, listening, speaking using language, tone and volume of voice according to the need of the situation and the ability to communicate ideas simply are important. For coroners taking this approach, principles and techniques of therapeutic judging and how they can be used in the coronial context are essential. Proper training prior to the implementation of the project and ongoing training updating developments in the field should be part of the implementation process. Conclusion This article has explored how a therapeutic, restorative, problem-solving approach might 48
Took and Johnstone, n 16. King MS, “Geraldton Alternative Sentencing Regime: Applying Therapeutic and Holistic Jurisprudence in the Bush” (2002) 26 CLJ 260; King MS, “Innovation in Court Practice: Using Therapeutic Jurisprudence in a Multi-Jurisdictional Regional Magistrates’ Court” (2003) 7 Contemporary Issues in Law 86; The Law Report, “One-Stop Legal Shop”, ABC Radio National, 3 April 2007, http://www.abc.net.au/rn/lawreport/stories/2007/1887103.htm accessed 31 March 2008.
49
be used in the coroner’s court (see the flow chart on the final page of this article). It proposes a dynamic, interactive, needs-driven, caring, empowering, collaborative and responsive model for the coronial case process, where parties are kept informed at each stage and, if they so wish, participate in the case process and contribute to decisionmaking concerning the processes to be used and, where possible, the outcome of the case. It proposes an enhancement of the support processes already provided to grieving families. It suggests that this approach doe not compromise legal values such as procedural fairness and the independence of coroners as judicial officers. It suggests that the coroner’s court can take a leadership role by implementing this model and by involving stakeholders in a collaborative implementation process.50 The model can also operate in harmony with therapeutic reforms to the coronial system suggested by others and summarised earlier in the article. There is a question whether this approach can be taken by regional coroners given that community resources in the regions are far more limited than in metropolitan areas. Previous experience has show that a problem-solving approach is possible where the court works with the local community and draws on local resources.51 A problem-solving approach could be tailored according to the resources of the region and the needs of the individual case. It may be argued that this approach will add further cost to the coronial process and further legal and other related costs to the families and other parties involved. While of necessity there will be costs involved in its implementation, the process also has the potential to reduce the number of inquests required and to reduce the length of inquests. The potential long-term savings would outweigh the additional costs. In any event, potential therapeutic outcomes would justify any additional expense. The suggested model has the potential to enhance the ability of the coroner’s court to exercise an ethic of care – particularly in relation to the families and other interested persons involved. These processes have the potential to address anti-therapeutic effects of coronial processes identified in the literature and to increase party and community satisfaction in the coronial process. Further, by addressing therapeutic concerns, the potential for adverse health outcomes for the parties may well be reduced. The collaborative, problem-solving model also has the potential to improve the coroner’s public health and safety promotion role. Where all interested parties are involved in a cooperative, non-adversarial dialogue that ascertains the issues of concern, how they have affected the parties, proposed methods of resolution and proper recommendations for reform, they are less likely to be defensive and more likely to be open and cooperative. Where a restorative justice conference is held some time after the coroner has delivered a finding making recommendations for reform, the party responsible for implementing change is given an opportunity to cast its organisation in a better light by acting on the coroner’s findings prior to the conference. By means of the conference, the family also 50
As to judicial leadership in the context of therapeutic jurisprudence and problem-solving courts, see: King, n 8. 51 King, n 15 and 49.
has a mechanism whereby the party is held accountable for implementing change, thereby potentially alleviating the family’s grief to some degree by demonstrating the death lead to change beneficial to the community. Indeed, Braithwaite has noted the ability of restorative justice conference processes to promote significant business compliance with regulations compared with a punitive approach.52 Such conferences involve conferences between regulators, representatives of the business and interested groups. It suggests the restorative justice approach may be useful in the coronial context.
52
Braithwaite J, Restorative Justice & Responsive Regulation (Oxford University Press, New York, 2002).
A Problem Solving Approach in the Coroner’s Court: Flow Chart Reporting of death to Coroner’s Office
Appointment of contact/support person for the family
Assessment of case by the Court and allocation to a track
Complex Track
General Track
First case management meeting. Attendance by interested parties. Discussion of issues to be addressed in investigation. Directions re investigation and any therapeutic matters. Support person assists family.
Further case management meeting(s) – after investigation completed or as required. Directions re conduct of inquest, therapeutic options, RJ, mediation, matters arising from mediation, agreed facts etc
Inquest
Therapeutic options available explained to parties, eg statement to coroner, RJ conference, counselling, other agencies referral, support person,
Mediation
Coroner’s decision
Restorative justice conference (if agreed)
Further directions by coroner if needed
