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5 Observations about the future of legal aid in the Netherlands and elsewhere Prof. MauritsBarendrecht HiiL/Tilburg University
Observation 1: Right now, traditional services eat up most of the budgets: • Lower courts with sometimes inefficient procedures • Legal aid by lawyers • Supreme courts and appellate courts • Agencies and committees
Observation 2: Is this maximizing effectiveness? • These services provide good jobs, have a magnificent past and thus form a powerful constituency that has little interest in real change • At the same time, these services are challenged, because they are not as effective for access to justice anymore • So budget cut after budget cut takes place • Present positions are defended, presenting research that shows how indispensable these services are and by mobilizing the professions
Observation 3: A rapidly expanding variety of newly developed services • Legal information websites, platforms for dialogue and dispute resolution on line, rules in the form of guidelines for fair solutions; protocols and standards for solving recurring problems; with helpdesk type of services as back up. • Assistance by fixed fee paralegal and lawyer/mediator hybrids with a problem solving approach. This is offered through many different models (insurance, fixed fee lawyers, government subsidies) • Third party dispute resolution mechanisms and courts that are specialized for specific justiciable problems (employment, consumer, disability, social security etc.)
Observation 4: New opportunities require different strategies • Information and websites are public goods (private providers can hardly make money from them) but there is very little investment by governments yet. Quality is still an issue. • Personalized assistance is mostly a private good. Most people can pay themselves or fund these services through insurance mechanisms; subsidies can be focused on specific disadvantaged groups. • Third party adjudication is mostly a private good. Many plaintiffs and/or defendants can pay for the resolution if procedures are simple. Subsidies can be focused on specific disadvantaged groups and cases with important external effects.
Observation 5: Becoming part of the future is difficult for strategic decision makers Some reasons: • This requires a shifting of resources • There is a danger of alienating the coalition of lawyers, judges and politicians that guaranteed jobs, budgets and power until now. • Many of the new developments take place in the private sector or deep in the court organisations. The role of government is much less clear.
Possible ways out of this dilemma to explore may include: • Radically reshuffling of subsidies to more promising innovative services • Defending the present services much more rigorously with research and lobbying • Becoming more like a market supervisor: leveling the playing field for new and old approaches, providing research about interventions that work, helping to certify services so as to the increase transparency and to guarantee minimum of quality • Building platforms that connect new and old services