National Judicial Institute Judicial Education

1. NATIONAL JUDICIAL INSTITUTE ●INSTITUT NATIONAL DE LA MAGISTRATURE National Judicial InstituteJudicial Education The honourable justice R. jameswilliams Supreme Court of Nova Scotia World congress on Family law and children’s rights March 18, Sydney, Australia

2. NJI: Family Law Judicial Education • The context of Canadian Family Law • The National Judicial Institute • Our Audience: Judges • Adult Learning Principles Inform Judicial Education • Course Planning • Family Law Programs and Resources at NJI

4. Ottawa

5. The Four Seasons

6. Halifax Harbour

7. Canadian Family Law • 1 National Divorce Act • 10 provinces, 3 territories • Each has its own legislation concerning: Custody access if no divorce involved Property division (for marrieds, unmarrieds) Child protection • Some provinces have Unified Family Courts, some do not • Some judges hearing Family Law matters are specialists, some are not • Adversarial system… evolving

8. The National Judicial Institute • Independent NGO created in 1988 • By and for judges • Board chaired by Chief Justice of Canada • Executive Director is a judge • Courses designed and presented by judges • Sole Canadian institute with exclusive judicial education mandate

9. Three Dimensions of Judicial Education • Knowledge • Substantive law – the law and its applications • Skills • Skills needed to perform the judicial role • Social context • Judging in a diverse society • … and an overarching ethical awareness

10. Basic Teaching Principles • Judicial education should reflect the character and profile of the judiciary in Canada • Judicial education should implement adult learning principles • Every area of the curriculum should reflect the three dimensions of judicial education • Knowledge, skills, social context (and ethical awareness)

11. Our Audience: Judges • What do they do? • What are their attributes? • What are their expectations? • What are their concerns?

12. Judges as Learners: What do Judges do? • Listen, Assess, and Filter • Receive evidence (filtering) • Assess credibility • Hear legal submissions • Speak (Verbal and non-verbal communication) • Managing the trial process and beyond • Communicating in the courtroom • Facilitating dispute resolution (settlement conferencing) • Oral judgments

13. Think (intellectual or cognitive skills) • Interpret and apply principles of law, procedure • Take into account context, exercise discretion • Synthesize information • Decide • Reach a decision (result) • Decide on the outcome (remedy) • Write • Convey decisions with reasons • Organize evidence, notes, affidavits in written judgments

14. Judges as Learners: Attributes • Motivated learners • Judging is an isolating job. Judicial education brings judges together to share experience • Skillful listeners • Accustomed to processing a great deal of information in a short time period • Concrete thinkers and problem solvers • Do not want “theory” for its own sake, material must be relevant, on point, and practical

15. Attributes (ct’d) • Like to be in control • Seek positive reinforcement • Used to giving advice rather than receiving it • People who have succeeded in their chosen profession • Skeptical by training, and by instinct • Tend to be impatient • Have a desire to succeed in tasks

16. Attributes (ct’d) • Have a broad range of interests • Like to have fun • Sociability and stimulation important in learning environment • Reluctant to learn new things in new ways • Unless new method has demonstrated tangible results • Appreciative of good programs and exchanges • Will adopt new approaches if they work/meet their needs

17. Attributes (ct’d) • Diversity of judges in Canadian context • Personal diversity, background, family, cultural, race, heritage, community • Work in both rural and urban settings • Work in regionally distinct areas • Work in (differing) multi-cultural contexts • Work in an ever-changing social environment

18. Judges as Learners: Expectations • Want to learn new, relevant, deeper and more engaging things • Want topics to relate directly to their work • Want to share experiences, to learn from other judges • Want faculty to be good presenters and have relevant and convincing experience • Want to learn how to make reasoned decisions more than finding the right answer

19. Judges as Learners: Concerns • Confidentiality and “safe learning space” • Judicial independence • Prescriptive approaches • Will resist “right answer” education, and will be careful about whom they listen and respect • Feedback • Adverse to criticism and not used to receiving feedback

20. Adult Learning Principles Inform Judicial Education

21. Adult Learning Principles • Connect learning to learner’s experiences • Link to what judges have done • Adults learn best when their experiences are valued • Contextualize learning experiences • Use learning activities that are close to judges’ realities (role-playing courtroom scenes, giving judgments) • Integrate various perspectives in learning activities • Encourage learners to be critical thinkers, and to explore and progress at their own pace

22. Adult Learning Principles (ct’d) • Provide a “safe space” to learn • Judges should remain confident and in control of the learning process, even outside their normal comfort zones • Some sessions may need to be “judge-only” • Respect judicial authority • Frame education as enhancing knowledge and skills rather than “teaching” judges • Don’t purport to give the “right answers” • Judges lead and control presentation of education

23. Adult Learning Principles (ct’d) • Adult learning is facilitated when learners are actively involved • Use a variety of formats • Use a “learner-centred model” rather than a “teacher-centred model” • Create formats where learners “generate” the knowledge • Lectures should be short and tied to activities, rather than being the main event

24. Experiential Learning • Judges learn better if learning is connected to a task they are required to perform • Judges learn to apply their knowledge and abilities in an appropriate environment • Learning activities are most effective when they incorporate the judge’s experiences • Retention of learning increases when learning is based in the judge’s own experience

26. “I hear and I forget. I see and I remember. I do and I understand.” • Confucious

27. Learning Preferences • All adults have distinct styles and preferences for learning • This diversity in learning has to be recognized in the programming • Use a variety of learning activities to accommodate a mixture of learning styles

28. Every area of the curriculum should reflect the three dimensions of judicial education

29. 3 Dimensions of Judicial Education • Knowledge • Skills • Social context …(and ethical awareness)

30. Experiential Learning • Experiential learning encourages the development of skills and the understanding of social context while at the same conveying knowledge

31. Planning/PresentingThe “Three Pillars” • A broadly representative group to enhance understanding of issues, quality of content and credibility • Judges • Academics/Researchers • Practitioners/Community-based experts • Under judicial leadership (judicial confidentiality being respected)

32. Course Planning

33. Learning Objectives • Distinguish from program aim, which describes overall purpose of program • Objectives are stepping stones to achieve the aim • Provide a framework for proper program development and evaluation • Help ensure facilitators and speakers understand their tasks • Allow participants to understand what particular knowledge, skills and attitudes they are expected to acquire or develop

34. Conceptualizing Learning Objectives • What education needs will be addressed? • What will participants be able to do/do better? • What will participants take away from the session?

35. Accommodating Different Learning Styles • An educational program should include: • Ways to connect learners with their Experience (their own and others’) • Opportunities for Reflection • The necessary Knowledge • An opportunity to practice, Application

36. E.R.C.A. – Learning activities • Experience • Short lecture, case study, remembering past experiences • Reflection • Panel or small group discussions, demonstrations, videos, brainstorming • Conceptualization/Knowledge • Lecture, analytical framework, checklist, flowchart, reference guides • Application • Practical problems, role play, group work

37. Example: NJI Family Law Seminar • Three-day seminar for judges who hear family-related cases • Topics alternate over three year cycle: • Year 1: Children • Year 2: Evidence and Procedure • Year 3: Financial and Property Issues

38. Family Law Seminar: “Financial and Property Issues” Program Topics: • Spousal and child support • Reproductive technology • Self-represented litigants • Marital assets • Imputing income

39. Practice Session on Reproductive Technology • Topic introduced (experience) • Short presentation on emergence of disputes over ownership of frozen embryos upon dissolution of marriage • Issue defined (reflect) • Is it possible for embryos to be considered marital assets? • Framework for problem-solving given (conceptualize) • Three approaches presented for resolving these disputes • Practice on scenario using framework (apply) • Hypothetical presented, and discussed in small groups

40. Family Law Seminar: Children Program Topics: • Alienated children • Domestic violence, and custody and access • Attachment theory • Mobility • Children and settlement conferences • Grandparents, custody and access

41. Children in Settlement Conferences • Topic introduced (experience) • Children are central parties in family mediation but their voices are rarely heard • Issue defined (reflect) • How can judges work with children in settlement conferences and other dispute resolution processes? • Framework for problem-solving given (conceptualize) • Tips for talking to children provided • Practice on scenario using framework (apply) • Participants asked what approach they might take to the situation

42. Innovative Approaches:Family Law Olympics A Debate on Family Law Issues • Moderated by a judge • Panelists composed of four lawyers, divided by region (East vs. West) • Participant feedback: • “Made us think outside the box - proves you can entertain and still teach.” • “Very funny but also serious - great food for thought. Appreciated the perspective of counsel.”

43. Innovative Approaches:Managing Domestic Violence Cases Skills-based program for judges hearing domestic violence cases in family and criminal courts • Knowledge: • “Black letter law” – child hearsay, hearsay, records production, credibility assessment • Skills: • Communication, trial management, crafting orders • Social Context: • Social science research on a number of related topics

44. Family Law at NJI • Programs • Concept of modules – reusable “pieces” • Resources • Program legacy – Judicial e-library

45. Family Law at NJI: Programs • The core: Annual Seminar • The emerging: semi-annual programs • The focus on skills (3-5 days) • The social context (3 days) • The on-line programs • The collaboration(s) • What about me?

46. Family Law at NJI: Programs 1. The core: Annual Seminar • a rotating three-year cycle • Year 1: Children • Year 2: Evidence and Procedure • Year 3: Financial and Property Issues • 3 days

47. Programs (ct’d) 2. The emerging: semi-annual programs • 2-3 day programs that seek to address emerging, “hot” issues • For example • Managing Domestic Violence Cases in Family and Criminal Court • Child Development and Best Interests • Responding to Allegations of Estrangement and Alienation • Judicial Assistance to Self-Represented Litigants in Family Law Proceedings

48. Programs (ct’d) 3. The focus on skills (3-5 days) • Negotiation: The foundation of J.D.R. and Settlement Conferences • Communication Skills • Judgment Writing • Computer Training • Sufficiency of Reasons • Judicial Ethics • Expert Evidence

49. Programs (ct’d) 4. The social context (3 days) • Neuroscience in the Courtroom • Race Law and Judging • Judging and Social Inclusion • Judging in the Context of Diverse Truths and Cultures • Aboriginal Law

50. Programs (ct’d) 5. The on-line programs • Problems in Child Protection • Sufficiency of Reasons • Child Abuse and the Internet • Social Media and Judging