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Rules for justice services

Regulation is key in creating an enabling environment where innovations can grow into gamechanging services. In many countries, detailed rules of procedure exist for courts that are difficult to change. Strict regulations may exist where only lawyers can give legal advice. This keeps new service delivery models such as one stop shop procedures or problem-solving courts from entering the legal sector.

At the same time, some kind of regulation is needed. Courts and providers of legal services intervene in people’s lives and in their relationships. The fairness and quality of these interventions needs to be assured. Moreover, both parties need to cooperate. People’s justice needs should be respected, but also reconciled. The parties need to be stimulated to work together and to comply with decisions about appropriate interventions. What is a good way to regulate justice services?

Level playing field

Independent evaluation

Fairness and quality

Ensuring cooperation

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Laws of procedure and regulation of legal services

Justice services are heavily regulated. Rules of procedure describe in detail what litigants and courts have to do. Roles in procedures are reserved for legal professionals. The education and skills required do not always match the know how and methods that are needed to resolve a specific problem. The rules for legal services provide who is allowed to deliver advice and who may assist people to navigate court procedures. Regulation also determines who can be an owner of a law firm and to what extent a justice practitioner is allowed to take up a mediating role.

Case studies and regulation strategies

As is described in this case study, LegalZoom provides affordable user friendly contracts and legal advice online, to individuals and small businesses in the USA. Despite becoming commercially successful, the company got entangled in a web of rules, and had to battle several court cases until regulations were modified to allow it to operate. Gamechangers such as LegalZoom have the potential to increase access to justice at a scale that old models cannot. Regulations need to change to accommodate such service delivery models.

The regulatory framework for legal services is being criticised, because it stifles innovation, impedes access to effective legal solutions and the legal profession is too heavily involved. A very thorough analysis of Legal Markets has been conducted by Professor Gillian Hadfield in the Journal of Economic Literature. One finding is that the market for consumer justice services needs a different approach compared to “big law” serving corporations and governments. The website Legalevolution.org has regular updates on regulation.

Following up on this criticism, independent regulators have been set up in England and Wales. The state of Utah in the USA was the first to establish a regulatory sandbox for non-lawyers and new business models providing legal services. Research institute IAALS is following the developments in other states on a day to day basis (see Unlocking Regulation). Several provinces in Canada are following up and European countries also considering regulatory reform. In African countries, bar associations and the judiciary tend to be more open to allowing innovation, because their services only reach a tiny proportion of the population.

Less well studied is how court rules and procedures impact innovation. Ideally, new types of courts, court interventions and court procedures would be proposed, tested and implemented continuously. On the basis of what works to provide fair and effective solutions for citizens. In reality, this is left to justice politics in parliament and ministries, which can be messy.

Country	Community Justice Services
Bangladesh	Village courts and Shalish
Belgium	Justices of the peace (Vrederechters/Justice de paix)
Burundi	Bashingantahe
Colombia	Houses of justice or Casas de Justicia
Ethiopia	Various states in Ethiopia have informal justice systems
France	Maisons de la justice et du droit (houses of justice) in major cities
India	Lok adalats
Kenya	Community based paralegal programs
Liberia	National Palava Hut Program
Nicaragua	Facilitadores Judiciales
Nigeria	Various systems of community justice guided by traditional rulers
Norway	Conciliation boards in every municipality
Philippines	Katarungang Pambarangay
Rwanda	Abunzi courts
Sierra Leone	Paralegal program ran by Legal Aid Board
South Africa	Community paralegals
Switzerland	Each canton has its own system of justices of the peace or other Schlichtungsbehör den (Autorités de conciliation)
Uganda	Local council courts

Examples

Bangladesh

Village courts and ShalishBelgium

Justices of the peace (Vrederechters/Justice de paix)Burundi
BashingantaheColombia
Houses of justice or Casas de JusticiaEthiopia

Various states in Ethiopia have informal justice systemsFrance

Maisons de la justice et du droit (houses of justice) in major citiesIndia

Lok adalatsKenya

Community based paralegal programsLiberia

National Palava Hut ProgramNicaragua

Facilitadores JudicialesNigeria

Various systems of community justice guided by traditional rulersNorway

Conciliation boards in every municipalityPhilipines

Katarungang PambarangayRuwanda

Abunzi courtsSierra Leone

Paralegal program ran by Legal Aid BoardSouth Africa

Community paralegalsSwitzerland

Each canton has its own system of justices of the peace or other Schlichtungsbehör den (Autorités de conciliation)Uganda

Local council courts

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A certification system
for justice services

It is time to redesign the regulatory system for justice services. Innovation of justice services requires a level playing field. Current services and innovative solutions should be evaluated against the same criteria. How could such a system look like, based on this research and case studies?

Outcome based criteria

Justice interventions and models for services need to be evaluated. The criteria for evaluation should focus on the effects of the intervention. Does the proposed way of treating a justice problem lead to prevention or fair, effective solutions? To the outcomes that people need? Without negative side-effects?

Outcome based criteria

Incorporating justice values

Some general outcome criteria can be derived from shared values. Procedural justice (due process) values such as giving people volce, participation and the opportunity to correct mistakes are important. The same is true for interpersonal respect and information about the process. These values are generally accepted, and confirmed by empirical research. Substantive evaluation criteria can refer to distributive justice, remedying harm, transparency and restoring peace/harmony.

Incorporating justice values

Focus on most pressing justice problems

Solutions for the most pressing justice problems would be prioritised. Interventions for domestic violence, land grabbing, medical injury and unfair dismissal are examples of high priority issues, depending on the landscape of justice problems in the country.

Focus on most pressing justice problems

Evidence based certification

Interventions can be scored against criteria by users in a pilot. Another option is to let experts, informed by research about what works, grade the intervention against the criteria. For each justice problem, these criteria may need to be operationalised: independent evaluation should build on the movement towards evidence based working.

Evidence based certification

Focus on activities rather than status

Experts recommend to move away from title-based regulation and from rules about how a justice service needs to be organised internally or who can be owner of a legal services firm. It is the quality of the activity that needs to be promoted.

Focus on activities rather than status

Independent authority

All providers of justice services can benefit from a level playing field. Currently, police, courts and lawyers are very much restricted in how they can solve/prevent justice problems and how they can organise their services. Technology developers and foreign providers face barriers to entry. An independent authority is the solution for this that has been accepted in other sectors.

Independent authority

Using existing capabilities

Setting up an effective regulator may be complicated, because it has to gain trust from innovators as well as incumbent legal service providers. Would it be possible to use existing capabilities? Courts of appeal or highest courts could perhaps set up independent evaluation units, with a multidisciplinary team.

Using existing capabilities

Interim solutions are needed

It may take time to create an independent regulator. For the time being, a government agency or informal group may be created that performs this role. It can act as an adviser to the current regulators. If an intervention or way of delivering services is expected to lead to better outcomes, this “agency” can advise to change the laws of procedure, the court rules or the regulation of legal services. Another interim solution is creating a regulatory sandbox.

Interim solutions are needed

Justice Dashboard

Justice Dashboard

Rules for justice services

Level playing field

Independent evaluation

Fairness and quality

Ensuring cooperation

Laws of procedure and regulation of legal services

Case studies and regulation strategies

Examples

A certification system
for justice services

Justice Dashboard

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Justice Dashboard

Rules for justice services

Level playing field

Independent evaluation

Fairness and quality

Ensuring cooperation

Laws of procedure and regulation of legal services

Case studies and regulation strategies

Examples

A certification system for justice services

Justice Dashboard

Contact us

Follow us

Navigation

A certification system
for justice services