Disclaimer: The views expressed in this case study reflect the experiences and opinions of the author, and do not necessarily reflect the official policy or position of Communicourt. 

A strange paradox about the intermediary role is that, in many (although not all) cases, the more effectively an intermediary supports someone with communication needs to participate in their legal proceedings, the less visible their work can be in the courtroom.

The better emotionally regulated a court user is, the better able they are to maintain their attention, to understand questions put to them in evidence, to understand legal concepts, the court process and the evidence of others – the more smoothly proceedings run, with fewer interventions required by the intermediary in the courtroom itself.

Beyond breaks

For the judge, who makes decisions regarding intermediary applications, the work of an intermediary is often only visible when breaks, adjustments and adaptations are requested in the courtroom. From conversations I have had, there is sometimes the perception that intermediaries do little more than request breaks.

This perception becomes especially significant when judges are considering intermediary applications, and need to decide whether sufficient adaptations can be made by the court, in the absence of an intermediary, to mitigate communication difficulties.

• The court certainly can implement breaks without the assistance of an intermediary. Although, as a side note, I have witnessed judges ask court users with communication needs directly whether they require a break. In many cases the individual will respond, “No”, either through a desire to conclude proceedings as swiftly as possible, through lack of insight into their needs, or through feeling unable to advocate for their own needs when spoken to by a judge. However, it is evident (from the vantage point of an intermediary) that a break is required to support the person’s attention, emotional regulation and/or ability to continue processing verbal information effectively.
  

In many cases, much of the most impactful work of an intermediary is undertaken ‘behind the scenes’ in conference rooms and waiting areas, and may only be visible to the court user themselves and their legal team. Such work may include (but is certainly not limited to):

• Supporting emotional regulation throughout proceedings through building rapport and implementing person-centred strategies (from teaching breathing techniques to manage anxiety in hearings, to implementing methods for the individual to express feelings of frustration in a non-disruptive way – for example, encouraging them to whisper their response to the intermediary, with a clear understanding that this information will be written down and shared with counsel in conference, to ensure they feel heard).
• Supporting understanding of the court process, through pre-hearing familiarisation visits, visual schedules and other methods (which can have a knock-on positive impact on attention, emotional regulation and overall understanding of the case).
• Supporting understanding of key issues and legal concepts in the case through simple explanations and/or the use of visual aids in conferences (which can then also be used in the courtroom). This work helps ensure that the court user can give clear, informed instructions to their legal team (preventing unexpected changes in position, or misunderstandings arising) and follow the thrust of hearings more effectively.
• Working with counsel to ensure the format of questions to be put to the court user in evidence will be clearly understood, and can be clearly responded to.
• Working with the court user in advance of their evidence to ensure they understand the process of giving evidence (from the meaning of the affirmation, to what steps they should take if they do not understand a question, or lose focus etc).
• Supporting understanding and retention of important information in the case. For example, through frequent recaps of key points in explanation breaks, or through simple visual aids and/or ‘easy read’ documents, which the individual can take home, clearly setting out key information, such as a contact plan or the rules contained in a Sexual Harm Prevention Order.

This is by no means an exhaustive list of the many ‘invisible intermediary’ tasks a judge may not be privy to in legal proceedings. In fact, as much of our work is person-centred and directly responds to an individual need or communication preference, it is challenging to fully catalogue the ‘unseen’ work which may take place to support effective participation in each, unique case.

Case study

To illustrate this principle, I have provided a case study below. (All names and identifying details have been changed to protect anonymity).

Background

I attended a short hearing to assist a court user. At the last minute, the court user was permitted to attend remotely. I was not informed of this change and attended court in person. No alternative means of communication between myself and the court user had been discussed or arranged. Counsel did not raise the matter with me, so I needed to independently explore ways to assist the court user remotely.

Pre-hearing

I asked for the court user’s contact information from counsel, and called them to explore what communication devices they had and what could be used effectively by them during the hearing. I also used this call to develop rapport, to ensure they felt as comfortable as possible communicating with me.

I established that they would join via a tablet and felt able to text me during the hearing using their smartphone. I was aware from the intermediary report that they were able to read short, simple written information. We successfully trialled communicating via text prior to the hearing. During the pre-hearing call, I provided a simple outline of the structure of the hearing, and the key topics which would be raised (information I had obtained from counsel and sought permission to recap and check with their client).

In the hearing

At the outset of the hearing, before the judge entered the courtroom, the court user texted me, asking who was present. This reassured me that they were able to use this communication channel while joining remotely. I asked those in the courtroom to stand up and introduce themselves and their role via the link, and did so myself. I also thanked the court user for sending me this question, encouraging them to keep using this strategy to raise any difficulties or questions they may have.

• Although hearing attendees are often formally introduced to the judge at the outset of the hearing, this task is usually undertaken very rapidly by one representative in the case. This can be challenging for some court users with communication needs to follow, and it can be difficult to identify who each person being referred to by the ‘introducer’ is.

When the judge entered and began the hearing, I sought permission to continue communicating with the court user via text.  The judge raised concerns about my attendance, expressing that this was the type of hearing in which intermediary attendance was not appropriate, as I would be unable to be of assistance to a remote court user.

However, as the hearing progressed, unexpected, urgent issues which had not been explained in advance to the court user were raised. Throughout the hearing, I had relayed simple summaries of key points to the court user via text. They responded each time with their view on each matter in simple terms. This indicated that they had read my simplification and understood the thrust of the hearing. When this new matter arose, they expressed confusion via text, and I provided further, simplified explanation.

Once they had a clear understanding of this new matter, they raised a clear view, which I immediately shared with counsel. Counsel could then communicate the court user’s new instructions on the point in their submissions. This was a very important instruction in the context of the case, which changed the trajectory of the hearing, and the next steps in proceedings.

Reflections

Without intermediary assistance in this case, albeit remote, it is my view that the court user would not have understood or followed the new, important matter which was raised. I take this view due to the confusion they expressed via text in response to my initial summary of the point.

In the event that the matter had been attended to and understood by the court user, I am also of the view that they would not have been able to independently raise their new, pivotal instructions with counsel. This is due to two factors:

• The likely absence of a pre-determined channel of communication with counsel, which could have been used effectively during the hearing
• Particular difficulties (which I will not explore here to maintain anonymity), which would have made it exceedingly unlikely that the court user would have felt (or been) able to verbally interject via a remote link, or raise their hand, to indicate that they needed to speak with their representative, during the course of the hearing.

The effectiveness of remote intermediary assistance (or otherwise) is a whole issue worthy of another blog post, but I believe this case study illustrates that crucial communication assistance can still be provided in this medium. I also believe it illustrates that a great deal of intermediary work, which can significantly support effective participation, is often ‘invisible’ to judges and other legal representatives.

I hope this blog goes some way towards unpacking some of the ‘unseen’ aspects of the intermediary role. This is simply one example, in my view, of the often ‘invisible support’ which prevents miscommunication, and which helps ensure the effective participation of court users with communication needs.

In my experience, and the experience of Communicourt colleagues I have spoken with, there are many, many other such examples of assistance provided ‘behind the scenes’. These examples will look different to my case study above, as intermediary strategies must be person-centred and are case dependent. But whatever those interventions may be, they are likely to be quietly making a considerable difference to the court user’s effective participation, and to the proceedings as a whole.