back to basics in dispute resolution: what do people want and what should we be offering? professor...

Back to Basics in Dispute Resolution:

What do people want and what should we be offering?

Professor Dame Hazel Genn

UCL Faculty of Laws

Back to BasicsResolution/Redress

• First principles

• Access to justice

• What we know about citizens’ needs?

• How could we meet those needs

First principles

What purpose does the justice system serve?

• Machinery for operating the rule of law

• Individual – Enforcement of legal rights– Dispute resolution

• Social– Supports social order and cohesion – Supports economic activity– Develops legal principles and gives effect

to legislation

Fundamentals of Access

• Aware of rights, entitlement, obligations

• [Equipped to avoid legal problems?]

• Aware of procedures for resolution/redress

• Access resolution/redress systems

• Participate in resolution/redress process to achieve just outcome

Access to justice as a social good

• Ability to participate in public redress systems is a measure of the health democracies

• Critical question = not ‘what rights do we give or what obligations do we impose’?

• But ‘what opportunities do we provide for the public to make good their entitlements’?

What is the problem?

Japan

Hong Kong

Australia

New Zealand

USA

Canada UKNetherlands

Bulgaria

1999-2008Legal needs studies around the world

What did they explore?• Patterns and impact of justiciable problems

– What types, who has them, what impact?

• Public responses and resolution strategies– What do people do and with what outcome?

• Advice-seeking behaviour– Where do people go for help and what

determines choices?

• Use of formal dispute resolution processes– Who invokes the legal system and for which

kinds of problems?

Most common types of legal problems

• Consumer - faulty goods and services/building work

• Neighbours• Money/debt• Employment• Welfare benefits• Accidental injury• Landlord and tenant/housing• Divorce and children• Discrimination

Country 1st most common 2nd most common 3rd most common

PJ England 1999 Consumer Money/debt Property

PJ Scotland 2001 Money Consumer Landlord

Netherlands 2004 Consumer Employment Money

Canada 2006 Consumer Debt Employment

Japan 2006 Injury Neighbours Consumer

NZ 2006 Consumer Money/Debt Benefits

CSJS 2006 Consumer Neighbours Benefits

Bulgaria 2007 Consumer Neighbours Benefits

Hong Kong 2008 Consumer Prop Damage Employment

What have we learned?

• High proportion suffer one or more justiciable problems

• Problems often occur in clusters– Cascade effect – one triggers others

• Can have serious impact on lives– Family break-up– Unemployment and loss of income– Ill-health or disability

• Link between unresolved problems and health, crime

Civil and Social Justice Survey 2009Legal problems and mental health

• 27% of civil law problems lead to stress-related ill-health

• Stress-related ill health most common for losing home, mortgage/rent arrears domestic violence, and relationship breakdown

• Over half need to get medical help for stress

• Of those 90% go to GP,10% to counsellor, and 5% to a psychiatric nurse

Common findings• Low income groups suffer more problems and

are less likely to do anything about the problem– Sense of powerlessness/helplessness

• Resolution strategy related to problem type– Problems for which action most likely to be taken –

family, consumer, property

• Advice-seeking related to problem type– Problems for which legal advice most likely to be

sought – divorce, children, property,

• Advice sought from wide range of more or less appropriate sources – people don’t know where to go – referral fatigue

• Significant unmet need for accessible, relevant sources of information and advice

So what?• Cynicism about legal rights and alienation• Social cost of unresolved problems• Escalation of small to large problems• Cost in public expenditure on physical and

mental health, welfare benefits, social housing costs

• The downstream cost of unresolved problems is a powerful argument for promoting access to justice and protecting civil legal aid

Involvement in legal processes

• Small minority involved in legal processes

• Strongly related to problem type

– Divorce and separation matters - greatest use

– Neighbour, consumer, employment, money problems - least use

• Use of ADR negligible for all problems

– Public not asking for it and advisers not advising clients to use it

Value of results

Need for joined-up thinking and action?• Dawning recognition that justice system

has to clean up the messes that other departments make– Poor decision-making on benefits – cost to

justice system– Social housing policy may lead to cost on

justice system

• That unresolved justiciable problems lead to pressure on other services and budgets– Does that person need expensive anti-

depressants or do they need to sort out the problem with their landlord?

Smarter approach to advice• Emphasis on avoidance and early advice

– Concept of cascades and trigger events helps to focus thinking around early intervention

• Making advice more accessible– When can people go for advice?– Where are they likely to go for help?

• Renewed interest in Legal Empowerment/ Legal Capability– Recognizing “unnecessary” helplessness– Facilitating self-help– Knowledge and skills-development

• Development of integrated approach to services (e.g. legal and health services)

Barrier at top of the cliff or ambulance at the bottom?

• Advice and education have protective and restorative potential

• It is both the barrier at the top of the cliff (information, advice, PLE)

• And the ambulance at the bottom of the cliff (advice and representation)

How ambitious or limited are our access to justice objectives?

How should we be meeting access to justice and dispute

resolution needs?

What do citizens want?

• To be saved• Dispute resolution processes that

are– Easy to use– Cheap– Quick (within reason)– Authoritative– Fair

• To get on with their lives!

Australia Access to Justice Strategic Framework

• Principles– Accessibility– Appropriateness– Equity– Efficiency– Effectiveness

• Methodology– Information– Early intervention– Triage– Pathway to fair outcomes

(although everything becomes ADR)

– Proportionate costs– Resilience – skills

development– Addressing the real issues

(inclusion) – Holistic approach?

TriageProportionate/Appropriate

Dispute Resolution/Redress

How does triage workin legal services?

• Not everyone enters the justice system in the same place

• Responsibility on everyone to direct people to appropriate path

• Triage should be undertaken by advisers, courts, tribunals

• Build in opportunities for early resolution and settlement

• But what are the factors that determine the correct path?

Triage = Sorting and allocating resources on the basis of need or

likely benefit

Identifying an appropriate path• What is the nature of the “fuss”? • What are the variables?

– Parties – citizen v citizen or citizen v state?– Resources – personal skills/financial– Balance of power – even/uneven– Subject matter – rights or interests?– Complexity – legal/factual– Depth of conflict– Objectives– Legal problem or social problem?– Issue of public importance?– Precedent value?

• Which dispute resolution/redress process is most suitable? Who decides?

Advice, information, representation

One-Stop shops

Early advice and information

Multi-disciplinary services

Triage

Early intervention

Problem Analysis

Identifying appropriate path

RESPONSIVE AND ACCESSIBLE CIVIL JUSTICE SYSTEM

Redress/resolution options‘Lump it’

SettlementDirect negotiation

Represented negotiation and settlement

Assisted settlement (mediation)

Internal Review

Authoritative DeterminationInquisitorial

(Ombudsman/complaints)Simplified interventionist (tribunal/small claims)Simplified adversarial

(fast track/employment tribs/arbitration)

Complex adversarial(multi-track/appellate)

Standard Court Processes

• Authoritative adjudication• Adversarial procedures• Merits based• Substantive justice• Coercive powers• Public processes• Costly• Slow• Complicated

Ombudsmen

• Authoritative recommendations

• Inquisitorial

• Merits based

• Accessible

• Cheap

• Not public processes

• No coercive powers

Tribunals• Authoritative specialist adjudication• Interventionist procedures• Merits based• Informal• Accessible• Cheap• Quick• Public processes• Coercive powers• Can be deceptive for unrepresented

Mediation• Settlement• Accessible• Informal• Good opportunities for participation• Problem solving not merits based• Flexible• Private• Cost unknown• Unregulated

Arbitration

• Authoritative binding determination• Specialist arbitrator• Merits based• Informal• Accessible• Private and confidential• Expensive• Few opportunities for review

Internal review/complaints mechanisms

• Authoritative recommendations• Inquisitorial processes• Accessible• Cheap• Independence?• Private• Lengthy• Effectiveness?

Time for some clear thinking about objectives

What are appropriate ambitions for civil justice?

• The civil justice system can’t do everything• Need to stand back and do what is possible• Advisers can’t do everything• Can’t solve complex problems of disadvantage,

health etc.• Clarity in thinking about objectives and

ambitions• Australians want greater “resilience” and justice

in every day interactions– Moral integrity