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Abstract: Citizens need access to a private or public mechanism that induces government officials and other citizens to respect their rights. They need 'paths to justice'. Walking these paths is costly. Disputants, for instance, spend money, time and effort when they bring their case forward in negotiations, in a court action, or in other dispute resolution procedures. In this paper, which presents the first results of a project aimed at developing tools for measuring access to justice, we explore how the price and quality of access to justice can be determined. We identify the issues that have to be resolved, and select a number of options to deal with these issues. Furthermore, we explore some of the difficulties that will arise during the development of an actual measurement framework.
access to justice, procedure, dispute resolution
Abstract: 'Fitting the forum to the fuss', i.e., finding an optimal way to deal with every dispute, is an appealing slogan of proponents of alternative dispute resolution. It also summarizes the contract one would expect rational disputants to make, once they are embroiled in a conflict they cannot resolve together. Disputants can 'buy' dispute resolution services, such as various forms of court intervention, mediation, or arbitration. Agreeing to a contract to buy such services together with an opponent, however, is likely to be difficult. In this paper, these difficulties are assessed. The barriers to dispute resolution are well researched. These barriers are behavioral regularities that qualify the assumption that rational parties would solve their dispute efficiently through negotiations. Barriers to solving the dispute itself through negotiations, however, may have analogous effects on negotiations regarding a procedure to resolve a dispute. The possible psychological (cognitive) barriers, strategic/tactical barriers, and institutional/structural barriers will be discussed. We will argue that the barriers to jointly decide on a dispute resolution procedure are likely to be substantial, and to be similar to the barriers to solving the dispute itself. If our thesis holds, the default rule for dispute resolution is 'sticky', which has important implications. First, defaults will attract the majority of disputes and should be designed carefully. Reformers of civil procedure or other dispute resolution mechanisms should not be deceived by the present use of dispute resolution services: They do not necessarily show what the preferences of disputants are. Secondly, our thesis may explain why arbitration and mediation are less frequently used than one would expect on the basis of the preferences for these dispute resolution services that are expressed in surveys, or on the basis of what one would expect rational parties to do when they optimize decision costs, error costs, deterrence benefits, and the value they attach to the procedure itself. Thirdly, it may be necessary to take a closer look at current attempts to remedy this 'market failure', such as court-annexed mediation and arbitration programs. These mechanisms may not be sufficient to create a level playing field for different dispute resolution services. Lastly, the supply side of the market is likely to be distorted. The providers of default dispute resolution services, such as courts and lawyers, are effectively shielded from competition, and may not adapt their services and prices sufficiently to the needs of customers. We offer some suggestions to remedy this market failure and conclude that a better understanding of the market for dispute resolution is needed.
Negotiation, dispute resolution, default rules, market failure
Abstract: In this essay, we introduce the concept of Microjustice as an approach to tackle the problem of access to justice for those with limited resources. In addition to existing perspectives, we propose to analyze the justice sector as a 'market' with its corresponding chain of supply and a demand. The challenge is to develop processes that are affordable to users with limited resources, whilst making it attractive for the providers of justice to act as suppliers. Microjustice allows the demand for justice and the supply of justice to meet by using tools of the modern services economy: information technology, economies of scale, cheaper labor at the place of delivery, flexible adjustment to local circumstances, self-help and empowerment of the user. The analogy to microfinance is instructive. We first explore how the market for justice works and why justice does not reach the poor. Next, we proceed to the development principles for Microjustice, drawing on the work of Prahalad and Hart regarding markets at the 'Bottom of the Pyramid.' We also show that legal systems are surrounded by knowledge that has an enormous potential for innovation, but are not yet open enough to use this potential. We give some examples of how Microjustice could look like in practice. Then we investigate the limitations of the market perspective and possible other objections to the Microjustice approach. We conclude by inviting the legal sector service providers, NGO's and other institutions working on access to rights to consider the development of innovative services in the spirit of microjustice. Moreover, we urge governments and donors to think about access to justice programs in terms of creating a climate for innovation and a business climate that stimulates legal service providers to deliver their services at the bottom of the pyramid.
access to justice, legal services
Abstract: At some points in their lives, people experience legal problems that induce justice needs: they need protection by outside norms or interventions that structure the conduct of other persons. In this paper, we attempt to identify the most prevalent and urgent legal problems of individuals.
We start with an intuitive list of twelve categories of legal problems that frequently occur in the law and development literature and in access to justice research. Then we use six approaches, each with their own strengths and blind spots, that give indications of the frequency and urgency of these legal problems: (1) information regarding the frequency of the problems from legal needs surveys conducted in eight countries; (2) data from these surveys about the typical impact of these problems on people's lives; (3) court specializations in sixteen countries; (4) estimates of the value of the interests that individuals wish to protect against threats from outsiders; (5) estimates of the typical costs of self-protection; and (6) estimates of the typical size of specific investments that a person will lose if he leaves the threatening situation. These approaches (not representing a rigorous empirical methodology) give some guidance for the process of setting priorities in justice systems that aim to be responsive to these needs. We discuss the policy implications for governments, donors in the area of law and development, and private suppliers of norms and interventions. In particular we speculate about the types of norms that may be an answer to the categories of legal problems, the types of interventions that may fit these legal problems, the possible consequences for specialization of court and other legal services, as well as the capacity that may be needed to deal with each category of legal problems. Our exploration of urgent legal problems and the most effective ways to meet justice needs suggests that there are many gaps between the type of protection that individuals need, and what legal systems are able to deliver.
Legal problem, Justice need, Norm, Intervention
Abstract: Prevention of harm, distribution (compensation, risk allocation, or redistribution of income) and controlling administrative costs are the generally accepted goals of the civil justice system. Is optimal cooperation, defined in this paper as using the problem-solving method of negotiation, a valuable fourth goal? If the legal system can successfully support problem-solving negotiations, without endangering other objectives, this is likely to lead to creation of value in terms of the preferences of the parties, to reductions in the costs of dispute resolution, and probably also to lower costs of transacting. Thus, optimal cooperation in the problem-solving manner seems to be a goal that is consistent with the perspective of welfare economics, in which the well-being of individuals is the criterion for normative evaluation. The net benefits of accepting this objective will depend on how the legal system can actually support problem-solving. This article discusses seven possible areas of implementation. A legal system attuned to problem-solving will be more open towards different types of interests and will stimulate the parties to find creative value-maximizing solutions. The perspective of problem-solving underlines the need to improve access to court, and more in general to reduce bargaining ranges by enhancing the way the legal system provides 'batnas'. If this is done, distribution of value will become easier and the effects of bargaining power can be diminished. Stressing the use of objective criteria, the perspective contains an invitation to redesign the rules of substantive private law so that they give better help to the negotiating parties when they deal with distributive issues. Useful objective criteria for distributive issues may be continuous instead of binary. Multiple objective criteria can exist next to each other. They do not have to be binding, but can be adjustable to individual differences in valuation of interests, different ways of creating value, and dissimilar external circumstances. The perspective of problem-solving also invites us to rethink the processes of contracting and dispute resolution, the role of blaming, and the principle of autonomy. Although many of the proposals suggested by this perspective are not new, it may help to develop a more coherent vision on reform of the civil justice system.
cooperation, contract, tort, dispute resolution, problem-solving, negotiation theory
Abstract: In this paper, we present a shortlist of criteria and questionnaire items that can be used to evaluate the quality of outcomes of legal procedures and other paths to justice. We define a path to justice as a commonly applied process that users address in order to cope with a legal problem. In our analysis such a path to justice begins when the user first addresses the process and ends at the moment of an outcome. This can be a final decision by a neutral, a joint agreement by the parties, or an end to the process because one of the parties quits the process. Our measurement instrument aims to assess the quality of this outcome from the perspective of the persons using paths to justice. Criteria only are put on our shortlist if (a) they are regularly proposed in theoretical (normative) literature and (b) empirical research confirms that a substantial part of the population actually uses them to evaluate the outcomes of processes that give access to justice. We draw the criteria for our shortlist from the literature on theories of justice as diverse as distributive justice, restorative justice, corrective justice, retributive justice, transformative justice, legal pragmatism, and formal justice. The proposed criteria and items are intended to become part of a methodology for measuring the price and quality of access to justice from a user's perspective. The paper ends with a discussion of some of the (methodological) challenges: the problems associated with neutral evaluations of outcomes, the ambiguity of outcomes, and the relative weight of each criterion in different settings.
Access to Justice, Outcome, Justice, Fairness, Quality, Dispute Resolution, Path to Justice
Abstract: This paper integrates findings from legal needs studies, institutional economics, and interdisciplinary conflict research to develop a framework for analyzing dispute systems. Five essential tasks that a dispute system facilitates are identified and the basic technologies for supplying them. Complementarities between these five types of services are discussed, as well as common elements of dispute systems that may be useful add-ons, but do not seem to belong to the essential core.
Establishing the necessary and sufficient elements of a dispute system leads to useful insights about the place of dispute services such as mediation, lawyers, and courts in the broader institutional setting of a dispute system. The framework is also a contribution to the emerging discipline of dispute system design. The framework can be a tool for evaluating existing dispute systems, and for developing innovative, affordable and sustainable access to justice (microjustice).
dispute system design, legal procedure, negotiation, access to justice, conflict resolution, negotiation
Abstract: Victims of road traffic accidents often have great difficulty in recovering damages through the tort system. They spend time, incur costs, and experience uncertainty and stress. Victims regularly complain about treatment that is not consistent with procedural justice values such as respect, voice, and neutrality. Secondary victimization of some sort is likely to occur. The insurance companies that are their opposing parties complain about high costs, uncertain outcomes, and unpleasant experiences in the claims-handling procedure because of its adversarial nature. From an economics perspective, these elements may be called the transaction costs of the tort system. The aim of this paper was twofold. In the first place, it reports on a project carried out in the Netherlands to develop procedural rules for improving the process of negotiating personal injury claims. This has resulted in the Dutch Code of Conduct for Handling Personal Injury Claims. The process of development was an interactive one: key players in the field, coming together in expert meetings and contributing in other ways, identified the problem areas the Code would have to address, established the form of the Code (mainly best practices), the options for best practices, the preferred best practices that are now to be found in the code, and the mechanisms to induce compliance. The Code of Conduct and its development are supported by key stakeholders: the Dutch Ministry of Justice, organizations representing victims, organizations of insurers, and most (though not all) organizations representing professionals working in the field of personal injury. Second aim of this paper was to evaluate how well the parties have done in this collaborative development process and its results. An evaluation may be conducted on the basis of various perspectives. In this paper, we chose the following perspectives: transaction costs; the needs of victims as derived from victimology research and procedural justice; negotiation theory; conflict resolution theory; and consensus building theory. The results indicate what parties did well and where there is room for improvement in future applications of this unique and promising process.
negotiation, personal injury, procedural justice, consensus building, dispute resolution, tort
Abstract: Rules are often seen as commands that have to be observed. From the perspective of disputants, however, rules may also be tools for settling disputes. Fisher, Ury, and Patton famously recommend that negotiators look for objective criteria instead of dividing the pie by a contest of willpower. We investigate the role that objective criteria may have in dispute resolution. In particular, we study how objective criteria help parties to determine shares in liability, damages, profits, efforts, risks, timing, or other benefits and losses that have to be distributed among the parties.
We reviewed the literature on negotiation, compliance, descriptive social norms, conflict resolution, fairness, and distributive justice. We found nine suggestions for properties of objective criteria, which make them more suitable as guidelines to settle distributive issues. For each property, we also investigated which mechanism may contribute to lowering the costs of dispute resolution and to increasing the acceptance of the outcomes. On this basis, we suggest that legislators, drafters of contracts, courts, designers of dispute systems, and others wanting to contribute to conflict resolution consider investing more effort in creating and supplying objective criteria that possess the following qualities:
1. independent of willpower and allow for being applied objectively; 2. perceived as legitimate; 3. lead to outcomes that are continuous in character, not binary; 4. weigh similar elements of the situation on both sides; 5. belong to parties, reflecting their ideas about legitimacy and appropriate neutral evaluation criteria; 6. do not claim exclusivity over other objective criteria; 7. allow decision makers to tailor the outcome to the specific situation; 8. practical, in particular, requiring low-cost fact-finding; and 9. provide social information about actual application by others.
Objective criteria, Rules, Negotiation, Dispute resolution
Abstract: Legal problems and justice needs are similar in different jurisdictions and different locations. Processes for resolving them, as well as rules determining outcomes vary widely, however. Measuring the price (costs) and quality of such 'paths to justice' from the perspective of the user is likely to enhance users' choice, enable comparison and learning, to increase transparency, and to create incentives for improving access to justice. This paper discusses the contours of a methodology for this purpose and of some concrete tools for measuring costs, procedural quality, and outcome quality. Conceptualization of a path to justice, criteria and items included in the measurement framework, as well as different data collection methods, are presented. Experiences from two pilot studies give insight in the challenges that lie ahead, and in the potential uses of the (developing) measurement methodology.
access to justice, costs of justice, quality of the procedure, quality of the outcome, paths to justice, measuring justice
Abstract: Many people lack access to justice for urgent legal needs, although the value of protection of their rights is high. Can justice be affordable for people with less than 2$ a day to spend? Access to justice studies usually investigate the barriers to justice and suggest ways to remove them. This paper follows an alternative approach. Justice is seen as a set of goods that must be produced and delivered by people to other people. For access to justice to become available, five key dispute resolution tasks should be facilitated by services performed at costs that are affordable to users. The paper collects best practices that can be derived from the disciplines that study disputes. It sketches how they may be combined in a low cost dispute system ran by a 'Microjustice Facilitator'. The conclusion is that these five essential services are not inherently costly to produce for people with limited resources, although there are still many gaps in our knowledge about providing them efficiently, which calls for coordinated innovation processes. It is also likely that the transaction costs associated to delivering justice are part of the problem and the market for justice should be studied more thoroughly.
dispute system design, legal procedure, transaction costs, access to justice, negotiation, conflict resolution
Abstract: "Fitting the forum to the fuss," i.e., finding an optimal way to deal with every dispute, is an appealing slogan of proponents of alternative dispute resolution. It also summarizes the contract one would expect rational disputants to make, once they are embroiled in a conflict they cannot resolve together. Disputants can "buy" dispute resolution services, such as various forms of court intervention, mediation, or arbitration. Agreeing to a contract to buy such services together with an opponent, however, is likely to be difficult. In this paper, these difficulties are assessed. The barriers to dispute resolution are well researched. These barriers are behavioral regularities that qualify the assumption that rational parties would solve their dispute efficiently through negotiations. Barriers to solving the dispute itself through negotiations, however, may have analogous effects on negotiations regarding a procedure to resolve a dispute. The possible psychological (cognitive) barriers, strategic/tactical barriers, and institutional/structural barriers will be discussed. We will argue that the barriers to jointly decide on a dispute resolution procedure are likely to be substantial, and to be similar to the barriers to solving the dispute itself. If our thesis holds, the default rule for dispute resolution is "sticky," which has important implications. First, defaults will attract the majority of disputes and should be designed carefully. Reformers of civil procedure or other dispute resolution mechanisms should not be deceived by the present use of dispute resolution services: They do not necessarily show what the preferences of disputants are. Secondly, our thesis may explain why arbitration and mediation are less frequently used than one would expect on the basis of the preferences for these dispute resolution services that are expressed in surveys, or on the basis of what one would expect rational parties to do when they optimize decision costs, error costs, deterrence benefits, and the value they attach to the procedure itself. Thirdly, it may be necessary to take a closer look at current attempts to remedy this "market failure," such as court-annexed mediation and arbitration programs. These mechanisms may not be sufficient to create a level playing field for different dispute resolution services. Lastly, the supply side of the market is likely to be distorted. The providers of default dispute resolution services, such as courts and lawyers, are effectively shielded from competition, and may not adapt their services and prices sufficiently to the needs of customers. We offer some suggestions to remedy this market failure and conclude that a better understanding of the market for dispute resolution is needed.
Abstract: In this essay, we begin with some general observations on the state of access to justice. Because access to justice is hard to measure and data on such access are scarce, we give a description of the barrieres to justice and mechanisms of exclusion and analyze how these work out for the poor in developing countries. Next we describe various strategies to improve access to justice, focusing on the innovative bottom-up approaches highlighted by the UN Commission on Legal Empowerment of the Poor. We then discuss the agenda for access to justice in terms of what we know and what we do not know yet. We conclude by stressing the need for an innovative approach to the delivery of justice: combining insights from academic research, smart innovation processes, sustainable "business models", and know-how from practical experiences.
Abstract: Many jurisdictions consider changes in appeal procedures. These changes usually affect both the costs of the appeal system and the quality of justice that the appeal system provides. We try to assess the effects of these changes systematically. What are the likely costs and benefits for the parties and for future users of the court system? How do they influence the costs of maintaining the appeal system? First, we develop a framework for evaluating such changes in terms of several categories of costs and benefits. Thereafter, we apply this framework to recent changes and proposals for change under consideration in four European jurisdictions, of which we covered the areas of civil procedure, administrative procedure, and criminal procedure. We look at: (1) restrictions in tasks for appeal systems (by a leave for appeal system, a system limiting grounds for appeal, not allowing appeals for certain types of cases, restrictions on new issues, limiting appeals to issues brought up by parties, and limits to stakes of a certain value); (2) changes in incentives to use appeal procedures; (3) changes in dealing with appeal cases (such as single judges in appeal, or better case management); and (4) alternatives to appeal. Our more general conclusions are the following. We find indications that appeal systems will improve their cost benefit ratio if they focus on error correction, in particular on errors that have a big effect on outcome and that are easily detectable. Using the appeal system for law making is not only a matter of freeing up resources, but also requires that appeal courts organize their work in such a manner that it generates more useful precedents (information that enables large numbers of future users of the court system to save costs in their dispute). An issue that warrants further study is the optimal division of labour between the different levels of the court system.
appeal, civil procedure, cost benefit analysis, evaluation, court
Abstract: Many countries struggle to maintain an affordable and sustainable legal aid system. This paper describes an interactive consultation process that was organized to develop proposals for increasing access to justice while limiting costs for governments as well as for users of the legal system. During the process, some strategies were identified that are unlikely to be effective in increasing access to justice and limiting costs. The more promising strategies tend to focus on improving the entire supply chain of fair solutions for legal needs, from legal advice to settlement negotiations and court interventions. These strategies can indeed lead to savings on the legal aid budget and can improve access to justice at the same time. However, the ensuing policies are not easy to implement, because they require a form of coordination that is new for the legal sector.
Abstract: If justice is so dearly needed, why does it not emerge spontaneously?
Socio-legal research shows how people shop for justice. They approach friends, advisers, lawyers, mediators, suppliers of legal information, local authorities, community leaders, priests, imams, arbiters, or judges in order to obtain redress in situations of conflict. From the perspective of clients, law is probably not so much a system of procedures in which they face barriers to access, but a variety of options on a market for justice services.
In this paper, five types of justice services are distinguished. Whether these services are affordable for clients and sustainable to supply, depends on the costs of production and on the transaction costs of making them available. Investigating the sources of transaction costs for each of these justice services improves our understanding of the legal system. This perspective explains why ADR has hardly succeeded in attracting clients, lawyer services are unlikely to become a commodity, norms for distributive issues are often lacking, and courts have trouble to orient themselves on the needs of their customers. It also indicates which type of policies governments and civil society can consider if they wish to improve access to justice.
Transaction costs, Access to justice, Legal services, Microjustice, Market Failure, Bargaining, Dispute System
Abstract: This paper reviews the literature on policies aiming to improve the rule of law and the operation of a legal system. It takes a bottom up perspective of clients seeking access to justice and uses transaction costs on the market for justice as a criterion to evaluate justice policies. Most justice is created through ‘justice transactions,’ including informal help from friends, legal advice, information about law, ADR services, other forms of informal justice, and adjudication. Such transactions are seriously hampered by three major transaction cost problems, however. Justice policies include codification, setting up courts and reforming them, financing of courts, legal aid, stimulating ADR, developing rules of procedure, and regulation of the legal profession. The transaction cost perspective explains why many traditional justice policies do a poor job to increase access to justice or to diminish the costs of civil justice.
More promising justice policies enable justice to emerge bottom up, in the interactions between clients and providers of justice services. These policies focus on the information needs of disputants, low cost default procedures, choice for plaintiffs, accountability towards clients, gradual, needs-based formalization of legal relationships, and strengthening informal compliance mechanisms. Such policies are relevant for any justice system, but in particular for legal empowerment of the poor and for stimulating microjustice.
rule of law, access to justice, legal empowerment, microjustice, transaction costs, courts, legal services, ADR, codification, civil procedure reform, regulation of legal profession
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