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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 Basics Resolution/Redress. First principles Access to justice What we know about citizens’ needs? How could we meet those needs.

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Back to basics in dispute resolution what do people want and what should we be offering

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 basics resolution redress
Back to BasicsResolution/Redress

  • First principles

  • Access to justice

  • What we know about citizens’ needs?

  • How could we meet those needs



What purpose does the justice system serve
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
Fundamentals of Access

  • Aware of rights, entitlement, obligations

  • [Equipped to avoid legal problems?]

  • Aware of procedures for resolution/redress

  • Accessresolution/redress systems

  • Participate in resolution/redress process to achieve just outcome


Access to justice as a social good
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’?



Netherlands

UK

Canada

Bulgaria

Japan

USA

Hong Kong

Australia

1999-2008

Legal needs studies around the world

New Zealand


What did they explore
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
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


What have we learned
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 2009 legal problems and mental health
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
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
So what?

  • Cynicism about legal rights and alienation

  • Social cost of unresolvedproblems

  • 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
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 negligiblefor all problems

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



Need for joined up thinking and action
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
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
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?



What do citizens want
What do citizens want? resolution needs?

  • 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 resolution needs?

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?

Australia Access to Justice Strategic Framework


Triage proportionate appropriate dispute resolution redress
Triage resolution needs?Proportionate/AppropriateDispute Resolution/Redress


How does triage work in legal services
How does triage work resolution needs?in legal services?

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

  • 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?


Identifying an appropriate path
Identifying an appropriate path resolution needs?

  • 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?


RESPONSIVE AND ACCESSIBLE CIVIL JUSTICE SYSTEM resolution needs?

Advice, information,

representation

One-Stop shops

Early advice and information

Multi-disciplinary services

Triage

Early intervention

Problem Analysis

Identifying appropriate path

Redress/resolution options

‘Lump it’

Settlement

Direct negotiation

Represented negotiation and settlement

Assisted settlement (mediation)

Internal Review

Authoritative Determination

Inquisitorial (Ombudsman/complaints)

Simplified interventionist

(tribunal/small claims)

Simplified adversarial

(fast track/employment tribs/arbitration)

Complex adversarial

(multi-track/appellate)


Standard court processes
Standard Court Processes resolution needs?

  • Authoritative adjudication

  • Adversarial procedures

  • Merits based

  • Substantive justice

  • Coercive powers

  • Public processes

  • Costly

  • Slow

  • Complicated


Ombudsmen
Ombudsmen resolution needs?

  • Authoritative recommendations

  • Inquisitorial

  • Merits based

  • Accessible

  • Cheap

  • Not public processes

  • No coercive powers


Tribunals
Tribunals resolution needs?

  • Authoritative specialist adjudication

  • Interventionist procedures

  • Merits based

  • Informal

  • Accessible

  • Cheap

  • Quick

  • Public processes

  • Coercive powers

  • Can be deceptive for unrepresented


Mediation
Mediation resolution needs?

  • Settlement

  • Accessible

  • Informal

  • Good opportunities for participation

  • Problem solving not merits based

  • Flexible

  • Private

  • Cost unknown

  • Unregulated


Arbitration
Arbitration resolution needs?

  • Authoritative binding determination

  • Specialist arbitrator

  • Merits based

  • Informal

  • Accessible

  • Private and confidential

  • Expensive

  • Few opportunities for review


Internal review complaints mechanisms
Internal review/ resolution needs?complaints mechanisms

  • Authoritative recommendations

  • Inquisitorial processes

  • Accessible

  • Cheap

  • Independence?

  • Private

  • Lengthy

  • Effectiveness?



What are appropriate ambitions for civil justice
What are appropriate ambitions for civil justice? resolution needs?

  • 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


Back to basics in dispute resolution what do people want and what should we be offering1

Back to Basics in Dispute Resolution: resolution needs?What do people want and what should we be offering?

Professor Dame Hazel Genn

UCL Faculty of Laws


Back to basics resolution redress1
Back to Basics resolution needs?Resolution/Redress

  • First principles

  • Access to justice

  • What we know about citizens’ needs?

  • How could we meet those needs


First principles1

First principles resolution needs?


What purpose does the justice system serve1
What purpose does the justice system serve? resolution needs?

  • 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 access1
Fundamentals of Access resolution needs?

  • Aware of rights, entitlement, obligations

  • [Equipped to avoid legal problems?]

  • Aware of procedures for resolution/redress

  • Accessresolution/redress systems

  • Participate in resolution/redress process to achieve just outcome


Access to justice as a social good1
Access to justice as a social good resolution needs?

  • 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 problem1

What is the problem? resolution needs?


Netherlands resolution needs?

UK

Canada

Bulgaria

Japan

USA

Hong Kong

Australia

1999-2008

Legal needs studies around the world

New Zealand


What did they explore1
What did they explore? resolution needs?

  • 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 problems1
Most common types of legal problems resolution needs?

  • Consumer - faulty goods and services/building work

  • Neighbours

  • Money/debt

  • Employment

  • Welfare benefits

  • Accidental injury

  • Landlord and tenant/housing

  • Divorce and children

  • Discrimination


What have we learned1
What have we learned? resolution needs?

  • 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 2009 legal problems and mental health1
Civil and Social Justice Survey 2009 resolution needs?Legal 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 findings1
Common findings resolution needs?

  • 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 what1
So what? resolution needs?

  • Cynicism about legal rights and alienation

  • Social cost of unresolvedproblems

  • 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 processes1
Involvement in legal processes resolution needs?

  • 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 negligiblefor all problems

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


Value of results1

Value of results resolution needs?


Need for joined up thinking and action1
Need for joined-up thinking and action? resolution needs?

  • 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 advice1
Smarter approach to advice resolution needs?

  • 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 bottom1
Barrier at top of the cliff or ambulance at the bottom? resolution needs?

  • 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?



What do citizens want1
What do citizens want? resolution needs?

  • 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 framework1

Principles resolution needs?

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?

Australia Access to Justice Strategic Framework


Triage proportionate appropriate dispute resolution redress1
Triage resolution needs?Proportionate/AppropriateDispute Resolution/Redress


How does triage work in legal services1
How does triage work resolution needs?in legal services?

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

  • 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?


Identifying an appropriate path1
Identifying an appropriate path resolution needs?

  • 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?


RESPONSIVE AND ACCESSIBLE CIVIL JUSTICE SYSTEM resolution needs?

Advice, information,

representation

One-Stop shops

Early advice and information

Multi-disciplinary services

Triage

Early intervention

Problem Analysis

Identifying appropriate path

Redress/resolution options

‘Lump it’

Settlement

Direct negotiation

Represented negotiation and settlement

Assisted settlement (mediation)

Internal Review

Authoritative Determination

Inquisitorial (Ombudsman/complaints)

Simplified interventionist

(tribunal/small claims)

Simplified adversarial

(fast track/employment tribs/arbitration)

Complex adversarial

(multi-track/appellate)


Standard court processes1
Standard Court Processes resolution needs?

  • Authoritative adjudication

  • Adversarial procedures

  • Merits based

  • Substantive justice

  • Coercive powers

  • Public processes

  • Costly

  • Slow

  • Complicated


Ombudsmen1
Ombudsmen resolution needs?

  • Authoritative recommendations

  • Inquisitorial

  • Merits based

  • Accessible

  • Cheap

  • Not public processes

  • No coercive powers


Tribunals1
Tribunals resolution needs?

  • Authoritative specialist adjudication

  • Interventionist procedures

  • Merits based

  • Informal

  • Accessible

  • Cheap

  • Quick

  • Public processes

  • Coercive powers

  • Can be deceptive for unrepresented


Mediation1
Mediation resolution needs?

  • Settlement

  • Accessible

  • Informal

  • Good opportunities for participation

  • Problem solving not merits based

  • Flexible

  • Private

  • Cost unknown

  • Unregulated


Arbitration1
Arbitration resolution needs?

  • Authoritative binding determination

  • Specialist arbitrator

  • Merits based

  • Informal

  • Accessible

  • Private and confidential

  • Expensive

  • Few opportunities for review


Internal review complaints mechanisms1
Internal review/ resolution needs?complaints mechanisms

  • Authoritative recommendations

  • Inquisitorial processes

  • Accessible

  • Cheap

  • Independence?

  • Private

  • Lengthy

  • Effectiveness?



What are appropriate ambitions for civil justice1
What are appropriate ambitions for civil justice? resolution needs?

  • 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


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