Case Study: The Justice Dialogue

Case study

The Justice Dialogue

Key takeaways

Trend Report 2021 – Delivering Justice / Case Study: The Justice Dialogue

Author: Kanan Dhru, Justice Innovation Advisor

Introduction

The HiiL virtual Justice Dialogue took place on Wednesday, 20th April 2022 from 09:00hrs-13:00hrs CEST.

High-level participants from Nigeria, Kenya, Uganda, the Netherlands and USA participated in this Dialogue, which served as a basis for HiiL’s plenary “People-centred justice: how to make it happen systematically?” taking place on 1st June at the World Justice Forum. All the participants have significant expertise on issues at the forefront of applying people-centred justice approaches. The names and designations of the participants are shared in the table at the end of this report.

HiiL’s policy brief “Delivering people-centred justice: Rigorously” served as a basis for this Dialogue. The brief focuses on developing an integrated approach on people-centred justice (PCJ) and details five main investments of people-centred justice programming that we see emerging: data, evidence-based practice, game changing justice services, enabling environment as well as engagement and accountability. 

The  Justice Dialogue built on this premise and created an interactive conversation about implementing and scaling the people-centred approach in the justice space. In particular, it focused on the following questions for the participants to share their thoughts and experiences:

Focus questions:

The Dialogue started with an opening speech by Dr Sam Muller, CEO and HiiL and a presentation on HiiL’s approach to people-centred justice by Prof (Dr) Maurits Barendretch. This presentation can be accessed here.  The Dialogue aimed to get inputs of the participants on the four main hypotheses – which serve as the enablers and impediments to people-centred justice:

Enablers and impediments to people-centred justice:

Stakeholders shared their thoughts and experiences on the above questions in small breakout sessions. Later, they shared key ideas from the breakout sessions with the larger group.  

Key takeaways from the Dialogue

1. Why is it important to invest in systematically improving dispute resolution systems in a people-centred way?

The following key takeaways emerged during the Dialogue on the above question: 

2. What are the enablers and impediments for the changemaking justice practitioners to make people-centred justice happen?

Most stakeholders validated the four hypotheses and emphasised that the enablers are also impediments. The same also applies to different components of PCJ.

2.1 Data:

2.2 Mindset:

2.3 Trust in Public Systems:

2.4 Incentives:

2.5 Technology is a strong enabler for change.

2.6 Making a strong case:

3. How can we ensure the broad uptake of innovations in the justice space? What are some of the best practices?

3.1 Scaling the innovation landscape:

3.2 The role of community justice services:

3.3 What is needed to make people-centred justice work?

3.4 Nurturing and investing in an ecosystem for change: 

Summary

We had a number of hypotheses about what makes people-centred justice happen: time and resources, knowledge, incentives and trust. A big enabler is conversations like these that bring a diverse group of people together to share different perspectives.

Three headlines

1. Make the case (if you want to make it work, you have to make the case) 

 2. Bring the right stakeholder together (it’s change management)

3. Creating the enabling environment.

List of the participants

We had a number of hypotheses about what makes people-centred justice happen: time and resources, knowledge, incentives and trust. A big enabler is conversations like these that bring a diverse group of people together to share different perspectives.

Akingbolahan Adeniran

Partner, Awodi & Co.
Former Attorney General, Ogun State, Nigeria

Maha Jweied

Non-Resident Fellow
Center on International Cooperation, New York University, USA

Paul Kimalu

Director, Planning and Organisational Performance
Judiciary Kenya

Rose Wachuka

Chief of Staff, Office of the Chief Justice of the Republic of Kenya and President of the Supreme Court of Kenya

Jane Adongo

Senior Sociologist
Uganda Law Reforms Commission

Folusho Obienu

Director of Citizens Rights
Ogun State, Nigeria

Justice Khobo

Innovative Justice Reform Judge
Kaduna State, Nigeria

Chinedu Agu

Secretary of Imo State Bar Association,
Imo State, Nigeria

Natalie Anne Knowlton

Director, Special Projects
Institute for the Advancement of the American Legal System (IAALS), USA

Gerald Abila

Founder
BarefootLaw, Uganda

Angela Lungati

Executive Director
Ushahidi, Kenya

Odunoluwa Longe

Co-founder
TLP Advisory, Nigeria/UK

Case study: Focusing on outcomes for survivors of intimate partner violence

CASE STUDY

Focusing on outcomes for survivors of intimate partner violence

Photo by Casa de Justicia

Focusing on outcomes for people / Case study: Focusing on outcomes for survivors of intimate partner violence

Identifying outcomes sought by survivors of intimate partner violence

As part of HiiL’s work to facilitate the implementation of people-centred outcomes monitoring in the justice sector, we endeavour to understand and define the specific outcomes that people faced with particular types of legal problems look for when they seek justice and support. We began this problem-specific research with a focus on intimate partner violence (IPV), a type of domestic violence.

The methodology used to produce this case study and identify a list of outcomes that survivors of IPV seek is one that we hope to have the opportunity to replicate for many of the other pressing legal problems that people around the world face. The problem-specific outcomes lists we generate through this process deepen our understanding of the varied forms that justice can take and support the new way of working we set out in the Focusing on Outcomes for People: An Opportunity for the Justice Sector policy brief.

This case study

To answer the research question, What specific justice outcomes do survivors of intimate partner violence seek?, we began by reviewing literature on the justice needs of IPV survivors. To generate a truly people-centred list of IPV-specific justice outcomes however, it was necessary to speak directly with IPV survivors and the practitioners who support them. For this, HiiL carried out focus groups and one-on-one interviews (depending on the preference of the respondents) with IPV survivors and practitioners in Uganda, Nigeria, and the Netherlands. In total, we gathered inputs from 55 different people. This formally included 22 survivors and 33 practitioners, though a number of the practitioners we engaged had personal experience with IPV in addition to professional expertise. 

The IPV-specific outcomes identified through these conversations — the details of which have been kept confidential in order to preserve the privacy and the safety of the respondents — were compared with the outcomes identified through literary research. A final list of 21 IPV-specific justice outcomes was generated based on the combined inputs of the survivors and practitioners surveyed in the literature and the survivors and practitioners HiiL spoke with directly.

Identifying the outcomes that survivors of this uniquely prevalent and impactful legal problem look for makes it possible for practitioners in the field to monitor the extent to which their justice and support services for IPV are truly people-centred. It also enables HiiL to test whether the broader outcomes categories we identify in the policy brief were sufficiently inclusive. Similarities and discrepancies between the two outcomes lists are highlighted and discussed in the sections that follow. In the final section of this case study, we reflect on what we learned and some of the key conceptual and methodological challenges we faced in identifying people-centred, IPV-specific outcomes.

A uniquely prevalent and impactful legal problem

The term “intimate partner violence (IPV)” refers to physical, sexual, psychological, or economic violence or abuse – including controlling behaviors and stalking – by a current or former spouse or intimate partner (WHO 2012; European Institute for Gender Equality 2021). IPV is a type of domestic violence and may take the form of a single violent or abusive incident or chronic incidents that recur over time.

IPV affects women, transgender people, and to a lesser extent men in all parts of the world. The World Health Organization (2018) estimated that globally, roughly 1 in 4 (26%) of ever-married/partnered women aged 15 and older have been subjected to physical and/or sexual IPV at least once in their lifetime. Ten percent were estimated to have experienced it in the last 12 months. The lifetime IPV estimate is similar in Western Europe (15-29%) and rises to 29-38% in Sub-Saharan Africa (WHO 2018).

The COVID-19 crisis only exacerbated the harmful effects of IPV. Lockdowns and stay-at-home orders resulted in many people being isolated inside with abusive partners. HiiL’s 2020 reports on justice delivery in COVID-19 crisis anticipated surges in reports of domestic violence, and more recent research suggests that such predictions have been borne out (HiiL 2020; HiiL 2020; The American Journal of Emergency Medicine 2020; European Institute for Gender Equality 2021). This has put domestic violence shelters, counselling services, and helplines – many of which were already inadequately resourced before the pandemic – under strain.

Although the full scale of IPV during the COVID-19 crisis is not yet known, the need for support services which are tailored to the specific outcomes that those who survive IPV seek is clear. The significant underreporting of IPV indicates that many women never seek help through the formal social service programmes and are less likely to alert authorities in cases of physical or sexual abuse (Bender 2016). This makes survivor-centred services all the more important. 

As a first step towards this goal, we set out to identify those more specific outcomes of IPV survivors. Aiming for as comprehensive and inclusive a list as possible, we began with a review of the most relevant available literature. The 20 academic articles selected primarily describe the results of research (including five systematic reviews) carried out in the Netherlands or the United States. We focused on studies in which IPV survivors themselves – rather than researchers or practitioners – were interviewed or consulted directly and seen as experts in their own experience. This represents a small portion of the vast international literature on IPV, which often focuses on the harm IPV causes or evaluates specific interventions that exist to address it.

We chose to focus on the justice outcomes that survivors and not perpetrators of IPV seek because survivors have the greatest need for help and support as a result of the violence they experienced. To say that the outcomes that perpetrators seek in the aftermath of IPV are beyond the scope of this study is not to say that they do not exist, that they are not interconnected with the needs of survivors, or that they should not be taken into account as part of any holistic effort to prevent IPV. However, we do believe that the outcomes that IPV survivors seek – which are so often overlooked or misunderstood by practitioners and society at large – merit their own careful research and should not be conflated with the outcomes sought by those who harmed them.

Insights from the literature

The literature illustrates that the outcomes IPV survivors seek change over time (Allen, Bybee & Sullivan 2004). In the immediate aftermath of a violent or abusive incident, survivors of IPV focus primarily on safety and protecting themselves (and their children, if they have them) from further harm. This often manifests in a practical need for the violence to stop, for secure (temporary or long-term) housing, for transportation, or for the perpetrator to be removed from the home (Klein et al. 2019; Ten Boom & Kuijpers 2016). 

Later on, needs related to long-term economic security emerge: namely for education (including job training), employment, or compensation (Ten Boom & Kuijpers 2016; Klerx-van Mierlo, Pemberton & Lodewijks 2011). This is often because survivors are no longer able to rely on the income of their current or former partner and therefore have a need to generate their own income or generate additional income. 

As victims of violence, survivors of IPV are also more likely to need emotional support than victims of other types of crime (Ten Boom & Kuijpers 2016). Counselling and mental health providers that serve this population often focus on reducing PTSD, depression, or symptoms of anxiety resulting from IPV; reducing shame, guilt, anger, and disassociation; reducing substance abuse; and increasing self-esteem and self-efficacy (Bender 2016; Karla Arroyo et al. 2015; O’Doherty et al. 2014).

Survivors of IPV may also develop legal needs, although these do not uniformly relate to the arrest, removal, or prosecution of the perpetrator. Legal services may also be needed to fight landlords, file for divorce or negotiate custody or visitation (Allen, Bybee & Sullivan 2004). Contrary to the traditional view of IPV survivors as passive recipients of the law and legal outcomes, “their interaction with both civil and criminal legal systems [is] part of their ‘active negotiation and strategic resistance’” to violence (Lewis et al. 2000).

Restorative justice needs, such as the opportunity to talk about what happened, acknowledgement of or apology for the harm by the perpetrator, reconciliation, reparation, or rehabilitation of the perpetrator through counselling are also highlighted in the literature and contrasted with “retributive justice” needs such as incarceration or retaliation (Ten Boom 2016; Ten Boom & Kuijpers 2016; Klerx-van Mierlo, Pemberton & Lodewijks 2011). Both approaches to justice can achieve safety and accountability for survivors of IPV (Decker et al. 2020). However, there is evidence that victims of crime by strangers and non-intimate acquaintances are more likely than victims of crime by intimates to desire punishment or retribution. This suggests that a restorative approach to achieving safety and protection may be more desirable for many of them (Ten Boom 2016; Ten Boom, Pemberton & Groenhuijsen, 2016). For survivors of IPV who choose (for economic or relational/familial reasons) to stay with the perpetrator, a warning by the police or temporary separation may be more desirable than arrest or incarceration (Ganapathy 2006; Ten Boom & Kuijpers 2016).

In addition to restorative outcomes related to the violent or abusive intimate relationship, survivors may also seek restorative outcomes related to friends, family, or the broader community (Herman 2005). This is because IPV: 

“is not [only] the result of a conflict between partner[s], nor the result of behavioural issues of the perpetrator, but also the reflection of cultural, social, and economical power imbalances and norms, particularly the patriarchal norm that women should be subservient” (Dissel & Nguben 2013).

Victims of domestic and/or sexual violence often express a need for the community to condemn the offence, for example, or for the perpetrator’s enablers and accomplices to apologise (Feldthusen et al. 2000; Herman 2005; Ten Boom & Kuijpers 2016).

Regardless of the avenues taken to achieve these outcomes, survivors of IPV also have procedural justice needs related to the way they are treated throughout the help-seeking process. These include the need to be treated with empathy, consideration, and respect; to be actively and compassionately listened to; to engage in mutual communication with authorities (to both provide and receive information); to have the opportunity to ask questions; to be given choices; and to be assured of safety and confidentiality (Ten Boom 2016; Ten Boom & Kuijpers 2016; Kulkarni, Bell & Rhodes 2012). One focus group study found that:

“Both advocates and survivors concurred that the way the survivors were treated mattered as much, if not more, than whether service providers were actually able to provide concrete resources. These findings suggest that relational aspects of service delivery such as active listening, supportive presence, and empowerment are at times undervalued, particularly in IPV services where the fear of lethal violence and the provision of physical shelter is often such a priority” (Kulkarni, Bell & Rhodes 2012).

At the broadest level, survivors of IPV want to prevent future violence against themselves and others (Ten Boom & Kuijpers 2016). Reduced reabuse or revictimization is an outcome often pursued by service providers, but it is important to acknowledge that people who have experienced IPV typically do not have control over whether they are abused again, and/or have legitimate reasons for remaining with an abusive partner (Bender 2016). 

As this summary of the literature has demonstrated, survivors of IPV have a complex and diverse set of needs that are not limited to safety and protection. These outcomes typically change and evolve over time and are shaped “not only by a survivor’s individual challenges but also by identity, resources, culture, strengths, and community” (Goodman, Epstein & Sullivan 2017; Kulkarni, Bell, & Rhodes 2012). Research shows that they are often contradictory in the sense that achieving one outcome, such as increased safety, requires sacrificing others, such as harmony in the community, economic security, or custody of their children (Goodman, Epstein & Sullivan 2017; Thomas, Goodman, & Putnins 2015). 

For these reasons, individualised and people-centred treatment – which meets survivors where they are and takes their needs, large and small, seriously – is particularly important for addressing IPV. “There is no ‘one size fits all’ model for survivors, and…how they receive assistance is as important as what they receive” (Kulkarni, Bell & Rhodes 2012). This means that services should be accessible to IPV survivors as needed, whether continuously or sporadically, and highly adaptable to their self-reported needs (Goodman, Epstein & Sullivan 2017). 

Insights from IPV survivors and practitioners in Uganda, Nigeria, and the Netherlands

To get a more people-centred understanding of the experience of seeking justice and support in the aftermath of IPV than the literature could provide, we carried out four focus groups and 16 1-1 interviews with survivors of IPV and practitioners who help them in Uganda, Nigeria, and the Netherlands. 

The transnational nature of our research allowed us to observe some differences in the IPV-specific justice outcomes that people in the three countries sought. For example, respondents in Uganda and Nigeria more often spoke about outcomes related to practical needs (i.e. the need for legal advice or a reliable source of income) or harmony within community (i.e. reconciliation with the perpetrator or support from family and friends to prevent future violence). In contrast, respondents in the Netherlands tended to emphasise outcomes related to mental health (i.e. to receive counselling for trauma symptoms) or the way they were treated in the justice or support-seeking process (i.e. to be taken seriously and believed by practitioners and institutions). By and large however, we found that the outcomes that survivors reported needing – and the outcomes practitioners reported trying to help them with – were broadly similar across Uganda, Nigeria, and the Netherlands. 

We compared the outcomes identified through these focus groups and interviews with the outcomes identified from the literature, and consolidated them into a final list of 21 outcomes that survivors of IPV seek (see “IPV-specific outcomes”). 

In creating this list, we:

IPV-specific outcomes

Increased safety from IPV
Both the literature and the focus groups and interviews made clear that increased safety from IPV – whether physical, digital, or psychological in nature – is among the highest and most immediate priorities of people who experience IPV. There are a wide range of mechanisms for achieving greater safety depending on the unique circumstances of the individual. In the short-term, safety may be increased by leaving the home where the violence is taking place, having the perpetrator arrested, or having the perpetrator removed from the home. For survivors who are not ready or able to take these steps, practical advice about how to protect themselves within the home may be more useful. In the longer term, other measures may be needed for the survivor to be truly free from the perpetrator’s power and control, particularly when the IPV is psychological or digital in nature. These may include replacing shared accounts or devices or relocating to a new community.
Increased economic independence
Ending a relationship with an intimate partner often comes with significant financial consequences. Often, survivors feel that they are unable to leave their partner for fear that they will not be able to support themselves or their children without them. This fear – and the related need for greater economic independence – emerged clearly from both the literature and the focus groups and interviews. Short-term mechanisms for this include financial support, such as benefits, or material support, such as food to feed oneself and one’s children. In the longer term however, survivors in Nigeria, Uganda, and the Netherlands all mentioned the desire to generate their own income by returning to school, enrolling in job training, or starting their own business. Practitioners in the Netherlands also reported that survivors of IPV often need help to manage debts that have accrued as a result of their situation.
Increased residential independence
One of the most frequently identified needs of IPV survivors in both the literature and the focus groups and interviews was the need for shelter and (temporary or long-term) housing. These are mechanisms of residential independence, meaning a survivor’s ability to live independently and often (but not always) physically apart from the perpetrator. The survivors we interviewed often described needing administrative or other practical support to relocate, for example: transportation; help to retrieve their belongings from the home they fled; or legal support to address immigration issues arising from their separation. Practitioners noted that helping survivors with these practical needs was an important first step towards creating the security and psychological space they needed to process their emotions in the longer term.
Improved physical health
People who survive IPV that is physically abusive need the violence to stop and may subsequently need medical care to recover from their injuries. Some survivors we spoke with were permanently disabled by the IPV they experienced. Even those who experienced IPV that was purely psychological in nature sometimes reported experiencing long-term physical consequences as a result. For these reasons, improved physical health is a noted outcome in the literature as well as in the interviews and focus groups.
Improved mental health
Psychological conditions like depression, anxiety, PTSD, and insomnia are widespread among survivors of IPV. Mechanisms such as counselling and emotional support from friends and family are very often needed to cope with and overcome the trauma and bad memories associated with being in an abusive intimate relationship. Improved mental health was identified in the literature and uniformly across our interviews and focus groups as an important and long-term need.
Increased confidence
IPV often takes a significant toll on survivors’ self-esteem and confidence that they can exercise control over their own lives, a belief described as “self-efficacy” in the literature. Many of the survivors we interviewed struggled with feelings of self-doubt and self-judgement as a result of the abuse they experienced. Practitioners reported that working with IPV survivors to focus on their strengths and aspects of their life that were going well before the abusive relationship can help to address these feelings and increase their confidence to live independently.
Understanding of the IPV the survivor experienced
In both the literature and the interviews and focus groups, we found that survivors often want to understand their experience of IPV and the reasons for it. This can take a long time and is typically only possible to pursue once more urgent safety needs have been addressed. A number of the survivors we spoke with learned about IPV and the dynamics that contribute to it, as well as what a healthy intimate relationship looks like, through their own initiative and education. This could also happen in a counselling or support group environment.
Understanding by the perpetrator of the harm they caused
As discussed in the literature review, survivors of IPV often want the perpetrator to understand the harm caused by their abusive behaviour and why it is wrong. This understanding can be facilitated by treatment programmes which educate perpetrators to develop empathy for their partner and interrupt negative patterns that precede violence. Restorative justice meetings with the survivor may also help, if they are voluntary and can be facilitated safely.
Acceptance of responsibility by the perpetrator for the harm they caused (accountability)
Acceptance of responsibility (accountability) by the perpetrator emerges clearly from the literature and the interviews and focus groups as an outcome that survivors of IPV seek. This can be achieved in a variety of ways. Some survivors are primarily interested in restorative forms of accountability, for example: the perpetrator acknowledging, taking responsibility, and/or paying compensation for the harm they caused. Other survivors we spoke with explicitly wanted the perpetrator to be punished, whether through prosecution, incarceration, or acts of revenge carried out within the community. These are ways of holding perpetrators accountable for the harm caused when they are unwilling to actively accept responsibility for it.
Prevention of the perpetrator from harming other people
As discussed in the literature review, survivors of IPV want to prevent future IPV against themselves as well as others. This means, in part, ensuring that action is taken to prevent the person that harmed them from victimising other people in their (physical or digital) community. This may involve physically preventing the perpetrator from engaging in IPV (i.e. through arrest and detention) or monitoring their behaviour for warning signs of continued abuse. A more proactive approach to prevention might involve connecting the perpetrator with services or a treatment programme focused on changing their behaviour.
Healthy change in relationship with the perpetrator
Divorce and separation were often mentioned in the focus groups and interviews as outcomes survivors of IPV seek. But the desire to leave the perpetrator is not universal: many survivors seek reconciliation – or if that is not possible – to at least be able to communicate with the perpetrator in a healthier way (for example about their children). The type of relationship that IPV survivors desire is also likely to change over time. Practitioners noted that while many survivors are not able to achieve a healthy change in their relationship with the perpetrator without cutting off contact or initiating divorce proceedings, this is not always seen as possible or desirable by survivors themselves. This messy reality was acknowledged in the literature but not discussed at length.
Improved well-being of the perpetrator
Despite what they have been through, many survivors still care for or love the perpetrator – their former partner and sometimes, co-parent – and want them to get the help they need. Improved well-being of the perpetrator may be achieved through, for example: drug treatment, mental health care, counselling to deal with childhood trauma, or training to change their behaviour. This was not discussed in the literature or mentioned universally across the focus groups and interviews, but it emerged as an important need among survivors who were concerned that the perpetrator might continue to cause harm if they did not get help, or who still hoped that their children could have a relationship with the perpetrator (in most instances, their father).
Improved well-being of their child or children
Not all the survivors we spoke with had children, but those who did reported wanting to do whatever they could to improve or safeguard their children’s well-being. For children who have been exposed to the IPV their parent experienced, this may take the form of child therapy. Many practitioners and survivors also highlighted the importance of more basic forms of support like childcare or money to pay their children’s school fees. This outcome was not discussed at length in the literature.
Healthy change in relationships within the family
In addition to being invested in the individual well-being of their children or the perpetrator, many survivors of IPV are concerned about the relationship dynamics of the family as a whole. For those who do not want the perpetrator to have access to their child or children, a healthy change in relationships within the family may be achieved by obtaining sole custody. For survivors who would like for the perpetrator to have a healthy attachment to their child or children to the extent that that is possible, counselling that addresses unhealthy patterns of communication or behaviour within the family as a whole may be a better option. IPV survivors may also want support to develop a more healthy attachment to their children (or other members of their extended family) themselves. While in the Netherlands, the most relevant relationships within the family are typically those between partners and their children, in Uganda and Nigeria they may span additional generations and family members, particularly in polygamous households. This outcome – including custody, which we understand to be one of its mechanisms – was highlighted in the literature as well as the focus groups and interviews.
Decreased isolation within the community
Many of the survivors of IPV we spoke to reported feeling socially isolated. For some, this was the result of the perpetrator intentionally isolating them as a form of manipulation and control. Others felt blamed by members of their community for what happened to them, or judged for not leaving an abusive relationship. Still others felt isolated because protecting themselves from the perpetrator meant relocating to a new community and starting their life over again. Practitioners and survivors alike shared that many survivors of IPV struggled to trust people and form relationships as a result of their experience. This desire of IPV survivors to live in harmony with – rather than be isolated from – one’s community was also highlighted in the literature on restorative justice outcomes.
Understanding and acknowledgement by the community of the harm caused by IPV
Understanding and acknowledgement by the community of the harm caused by IPV was frequently mentioned as a desired result in the interviews and focus groups, though less so in the literature. In both the Netherlands and Nigeria, respondents described a lack of general awareness about the forms that IPV can take, incorrect assumptions about what a perpetrator or survivor of IPV looks like, and patriarchal beliefs about women’s role in society and in relationships. Mechanisms for counteracting such beliefs include community education and awareness raising initiatives.
Proactive prevention of IPV by the community
Virtually all of the survivors and practitioners we spoke with emphasised the need for more systematic and proactive prevention of IPV by the community. In addition to education and awareness raising initiatives mentioned above, mechanisms for the societal prevention of IPV include legislative changes, efforts by the police or members of the community to monitor warning signs and respond to erratic behaviour, and even corporate initiatives to protect IPV survivors’ digital rights and privacy.
Understanding of the process
Both the literature research and the focus groups and interviews revealed that survivors of IPV want to be able to understand the legal and administrative procedures relevant to their case as well as their rights throughout the justice or support-seeking process. Practitioners can facilitate this understanding informing survivors about rights and procedures in a comprehensive and respectful way.
Agency in process
As emphasised in the summary of the literature, survivors of IPV want to be given choices and the option to participate in or withdraw from the justice or support-seeking process. The survivors we interviewed spoke frequently about the importance of being able to take their time and access help or become independent on their own terms. Many had felt rushed by friends, family, or professionals to leave the perpetrator before they were ready or to press charges against their wishes. Experienced practitioners also stressed the importance of offering support and opportunities for engagement irrespective of their clients’ situation, as many survivors return to their abusive partners several times before they are ready to leave for the long-term.
Empathetic listening in the process
Both the literature and the IPV survivors and practitioners we spoke to emphasised the need for survivors to be empathetically listened to throughout the justice or support-seeking process. Being able to talk to someone about what happened to them and have their story heard and recognised was valued independently of the quality or type of services they received.
Competent and unbiased treatment in the process
Many of the survivors we spoke to experienced secondary victimisation as a result of incompetent or biased treatment by the very justice and support services that were intended to help them. A number of survivors reported feeling disrespected by the police and discouraged from reporting the violence they had experienced. The experience of not being believed or taken seriously by practitioners as well as friends and family was widely felt. Survivors in Uganda and the Netherlands in particular often reported needing specialised administrative support just to navigate the services available to them and not be misunderstood by them or incorrectly profiled as the abusive partner in the relationship. This outcome emerged very clearly from conversations with survivors but less so from practitioners or in the literature reviewed.

What IPV-specific outcomes tell us about the general justice outcomes people seek

Having identified 21 outcomes that IPV survivors seek, we returned to the list of 8 general justice outcomes offered in the Focusing on Outcomes for People: An Opportunity for the Justice Sector policy brief to see what improvements could potentially be made. By mapping the 21 IPV-specific outcomes beside this list, we were able to highlight similarities and discrepancies in the two sets of justice outcomes we identified. The results are discussed in the table below.

General justice outcomes
IPV-specific outcomes
Discrepancies
Understanding what happened
Understanding of the IPV they experienced
N/A
Acknowledgement of role or responsibility
Understanding by the perpetrator of the harm they caused

Understanding by the community of the harm caused by IPV

Acceptance of responsibility by the perpetrator for the harm they caused (accountability)
Understanding of the harm caused by IPV – on the part of both the perpetrator and the broader community – was particularly important to survivors because their experience had so often been misunderstood. Survivors also wanted the perpetrator to be accountable for this harm – ideally through his or her own initiative. Holding the perpetrator accountable through punitive measures like arrest or incarceration was also important to many respondents, and this need for retributive justice is not clearly reflected in the general justice outcome “acknowledgement of role of responsibility.”
Fair distribution of resources or responsibilities
N/A
Because survivors of IPV are often driven to leave their abusive partner on short notice or without recourse to the criminal justice system, they are not always in a position to negotiate for a fair distribution of resources or responsibilities. Even those who are able to may prefer to simply cut ties with the perpetrator rather than engage in a prolonged battle for resources. These reasons may explain why we did not identify any IPV-specific outcomes related to the fair distribution of resources or responsibilities.
Damage restoration
Improved physical health

Improved mental health

Increased confidence

Improved well-being of the perpetrator

Improved well-being of the child or children
The harm caused by IPV can take a variety of forms, and therefore, so can its repair. Because IPV takes place in the context of a relationship and sometimes a larger family, the survivor is not necessarily the only person affected by the physical and psychological damage it inflicts. For these reasons, the general justice outcome “damage restoration” must be interpreted broadly (to include the well-being of the perpetrator and any child or children) when it comes to IPV.
Relational restoration
Healthy change in relationship with the perpetrator

Healthy change in relationships within the family
N/A
Harmony within the community
Decreased isolation within the community
N/A
Security
Increased safety from IPV

Increased residential independence

Increased economic independence

Security for survivors of IPV consists not only of safety or protection from further violence, but also personal autonomy. While the outcomes “increased residential independence” and “increased economic independence” may contribute to safety, they relate first and foremost to survivors’ need to live a life that is stable and independent from the perpetrator’s power and control. The general justice outcome “security” should therefore also be interpreted broadly when it comes to IPV.
Prevention
Prevention of the perpetrator from harming other people

Proactive prevention of IPV by the community
N/A
N/A
Empathetic listening in the process

Agency in the process

Competent and unbiased treatment in the process

Understanding of the process
We learned that outcomes related to the quality of the justice or support-seeking process were particularly important for IPV survivors, despite not being reflected in our list of 8 general justice outcomes. Many survivors felt that services were provided on the basis of inaccurate stereotypes about who they were rather than a deep understanding of their unique situation and the results they hoped to achieve. Being able to understand and have agency in the justice or support-seeking process was for them just as, if not more, important than achieving the more results-oriented outcomes identified above. The lack of any outcome reflecting these procedural, interpersonal, and informational justice needs was the biggest discrepancy between the general justice and IPV-specific outcomes we identified.

Reflections on challenges

Identifying and measuring outcomes from the perspective of people with legal problems is not a straightforward task. In the process of identifying 21 IPV-specific justice outcomes, we struggled to create a list that was inclusive and faithful to the experiences that survivors and practitioners shared with us on the one hand, and conceptually consistent and measurable on the other. We reflect on a few of the key dilemmas that we faced below.

Process vs. result

Although the justice measurement literature clearly distinguishes between process and result-related outcomes, this distinction becomes blurrier in the context of IPV. The need to be compassionately listened to, given agency, and treated in a competent and unbiased way in the justice process was mentioned consistently across interviews and focus groups. Secondary victimisation was a common experience among Dutch survivors in particular: a number of them went so far as to say that their interactions with justice and support services had a more negative and lasting impact on their well-being than the IPV they endured. Although measuring process and results-related outcomes together may present methodological challenges, and although we excluded process-related outcomes from our list of general justice outcomes, our research strongly supports the observation highlighted in the IPV literature that “how [survivors] receive assistance is as important as what they receive” (Kulkarni, Bell & Rhodes 2012).

Consolidation vs. specificity

In the process of consolidating what we learned from individual survivors and practitioners into a final list of outcomes, it was difficult to determine what level of specificity to preserve. Further consolidation was almost always possible, as many of the justice outcomes that IPV survivors seek can ultimately be understood as a function of increased safety or well-being. We believed that reducing the number of IPV-specific outcomes we identified and ensuring that they were conceptually consistent would also facilitate their measurement. At the same time however, we wanted to create a list that reflected the diversity of desired results shared with us, and was therefore not excessively generalised or likely to be confused with the general justice outcomes. 

Outcomes vs. mechanisms

One way we tried to resolve the consolidation vs. specificity dilemma was by clearly distinguishing between outcomes, which were broadly shared, and possible mechanisms for achieving them, which varied considerably from person to person. In describing outcomes like “increased residential independence” or “healthy change in relationships in the family,” we were careful to highlight mechanisms that many people relied upon to achieve those outcomes, such as “shelter” or “custody.” 

Still, some mechanisms that were important to respondents did not fit neatly under one outcome. For example, a number of survivors shared that they wanted evidence of the IPV they experienced. This served different purposes for different people. Some wanted proof of what happened to them in order to press charges against the perpetrator. A number of respondents reported experiencing a lack of support from the police to investigate what happened to them, and one survivor reported that the police lost the only photographs she had of her injuries. Others wanted evidence for more personal, mental-health-related reasons. After having their experience of IPV called into question or disbelieved by others so many times, they had started to doubt their own memory of what happened to them. The mechanism “evidence of the IPV they experienced” could therefore have been highlighted in relation to the outcomes “understanding the IPV they experienced,” “acceptance of responsibility by the perpetrator for the harm they caused (accountability),” or “increased mental health.”

Cultural vs. methodological differences

We learned that while respondents in Uganda and Nigeria were largely willing and able to share their experience in focus groups, respondents in the Netherlands could for the most part only be reached through 1-1 interviews. This systematic difference in preferred modes of data collection made it difficult to determine whether differences in the kinds of outcomes that people mentioned were due to differences in their environment, or cultural differences in the kind of help IPV survivors in Uganda, Nigeria, and the Netherlands generally seek. For example, IPV survivors in the Netherlands may have focused more on their personal mental health or their experiences with secondary victimisation because the 1-1 interview format gave them more time and privacy than other respondents had to do so.

Outcomes for survivors vs. outcomes for perpetrators

As noted previously, we made a principled and methodological choice to focus on the outcomes that IPV survivors – rather than perpetrators – seek. However, we learned that the needs of IPV survivors are often closely interconnected with the needs of perpetrators. This raises challenges for measurement. Can an IPV survivor reliably report on the extent to which a particular justice or support service improved the well-being of the perpetrator? Or is this an outcome that – although it may be important to the survivor’s experience of justice – only the perpetrator can speak to?

Victims vs. survivors

Even something as simple as how to refer to people who have experienced IPV presented a challenge. Whereas the term “survivor” is recognised in many Anglophone countries as the more empowering way to refer someone who has suffered violence (and emphasise that they are not defined by this negative experience), in the Netherlands the term “victim” (the English translation of the Dutch word “slachtoffer”) is more commonly used. Although we chose to use the former term throughout this report, asking individuals who experienced IPV what they prefer to be called is best practice (SAKI). 

Standardisation vs. customisation

While the mechanics of measurement are beyond the scope of this report, we are nevertheless aware of the practical challenges of monitoring standardised lists of justice outcomes like the two we offer in this report. Because most justice practitioners do not provide services that can deliver all of the outcomes identified in isolation, there will likely need to be room to customise which outcomes are monitored in connection with which services. 

The same customisation will likely be needed to accommodate differences in the preferences and circumstances of survivors. Although we did our best to identify IPV-specific outcomes that were broadly shared, not every outcome will be equally important or even applicable to every individual. Any outcomes monitoring system that is developed would ideally allow practitioners and survivors to indicate upfront which outcomes are most relevant and meaningful to their justice service or journey.

Conclusion

This study has revealed that while the justice and support mechanisms that IPV survivors rely on and seek out are wide-ranging, the justice outcomes that IPV survivors seek – meaning the positive results or changes in well-being achieved through the resolution process – are broadly shared across Uganda, Nigeria, and the Netherlands. 

The 21 IPV-specific outcomes we identified through literary research, focus groups, and interviews relate to the treatment and empowerment of IPV survivors in the justice or support-seeking process, understanding of the harm caused by IPV, safety and autonomy, physical and mental health, accountability, relationships within the family, decreased social isolation, and the proactive prevention of IPV. Though identified from the perspective of the survivor, these outcomes also relate to the perpetrator, the survivor’s family members, and the communities in which they live. 

In producing this case study and accompanying policy brief, our intention is to enable policymakers and practitioners in the field of domestic and intimate partner violence to work increasingly outcomes-based. This means centring and – through the implementation of people-centred outcomes monitoring – holding themselves accountable for the positive results or changes in well-being that survivors look for when they seek justice and support.

Authors

This case has been developed by Isabella Banks and Manon Huchet-Bodet.

Focusing on outcomes for people

HiiL POLICY BRIEF

Focusing on outcomes for people
An opportunity for the justice sector

June 15, 2022

Photo by fauxels from Pexels

Leaders in the justice sector operate in a challenging environment. Faced with overburdened courts, expensive legal advice, and complex procedures that make it difficult to resolve conflict swiftly, they are expected to provide access to justice for all. A key policy recommendation these leaders receive from people-centred justice experts and advocates is to focus on outcomes. This means that efforts to improve legal procedures and institutions should be undertaken with the end in mind: the impacts on the lives of individuals and their communities. For outcomes-based working to become a reality, judges, lawyers, mediators and other practitioners in the justice sector will have to put this advice into practice. This is not a straightforward task, because the outcomes that people look for when they seek justice and support have so far remained undefined. This policy brief aims to support innovative justice leaders and practitioners by beginning the difficult work of defining the outcomes that people with specific legal problems seek. We conclude the brief by identifying the ways in which these people-centred outcomes can be operationalised to increase access to high-quality justice.

1. What would it mean for the justice sector to work outcomes-based?

High-quality justice services deliver outcomes that people with legal problems need. By justice outcome, we mean a positive result or change in well-being that a person with a legal problem  achieves through the resolution process. A man who has been robbed may want his belongings returned to him, or financial compensation for his loss. A woman facing a land dispute may want her property rights documented in a way that will be respected by her neighbours. A family in conflict over their inheritance may wish to reconcile, or prevent future disagreements, in addition to sharing their resources in a fair way. These individuals seek avenues for achieving their desired results, whether that is an agreement with the other parties involved or a decision by a neutral authority. A well-functioning justice system will make those avenues available and monitor their effectiveness in delivering the outcomes people seek.

1.1 The challenge: Shifting the focus from institutions to individuals

Outcomes are a familiar concept in the justice sector, yet they are rarely defined in collaboration with those seeking justice. This means that rather than reflecting the needs of people with legal problems, the outcomes that are defined and monitored tend to reflect the needs or operational objectives of legal institutions. These may include efficiency, cost effectiveness, or outcomes related to public safety goals such as reduced reoffending. 

The judges, lawyers, and mediators that work for these institutions generally want to deliver the kind of help that people seek. But many assume they know what this is rather than asking: what would justice or support look like for you? Even practitioners who are highly attuned to the varied needs of the people they serve may be constrained by institutional benchmarks in the help they provide. A judge may be assessed by the speed with which she processes cases rather than the proportion of her decisions that resolve the underlying legal problem. A police officer may be judged by the number of arrests he makes rather than the level of safety residents of his neighbourhood or village experience. 

This focus on the procedural results that institutions are able to deliver as opposed to the concrete improvements they produce in people’s lives has created a gap between the supply and the demand for justice. People faced with a legal problem know best what positive results or changes in well-being they need to overcome the hardship they have experienced and move on with their lives. Experienced practitioners know how acute and wide-ranging people’s needs  in the aftermath of crime or conflict can be. So why not make use of this knowledge?

1.2 The opportunity: Delivering people-centred justice outcomes at scale

Sustainable Development Goal (SDG) 16.3 has challenged governments to make their justice systems more accessible and more people-centred. A core principle of the people-centred justice movement is that justice services resolve the problems that people experience in a fair way and deliver the outcomes they seek (Declaration on Equal Access to Justice for All by 2030 2019). 

The Organisation for Economic Co-operation and Development (OECD) identifies “outcome focus and fairness” as one of ten criteria for people-centred design and delivery of legal and justice services. It points to the setting of outcome objectives, evaluation according to those objectives, and long-term follow-up studies of user outcomes as good practices for designing and delivering people-centred justice services (OECD). 

Although outcomes are often referenced in policy documents promoting people-centred justice, they are rarely identified in tangible terms. To date, only academic literature and HiiL’s Justice Needs & Satisfaction (JNS) surveys have made efforts to conceptualise and define the specific outcomes people with legal problems need. Identifying justice outcomes is an important first step towards measuring them and assessing access to justice and legal need (OECD 2019). 

In our 2020 SDG 16.3 Trend Report, Charging for Justice, we describe in detail how focusing on outcomes for people can transform the way justice is financed and delivered. We make the case that measuring and monitoring justice outcomes in a standardised way can increase access to people-centred justice and close the justice gap in the following ways:

Understanding what people look for when they seek justice or support creates an opportunity to design, deliver, and fund the justice services that are truly people-centred in terms of the outcomes they deliver. With this policy brief and supporting case study, HiiL aims to deepen that understanding and leverage it to increase access to justice for all.

1.3 This policy brief

In this policy brief, we explore how people-centred justice outcomes can be identified and operationalised. We ask: What general justice outcomes do people seek when faced with a legal problem? Based on insights from academic literature, and building on HiiL’s JNS survey research, we propose eight general justice outcomes that can be used to measure and monitor the quality of justice services or processes.

We then make the case for identifying problem-specific outcomes that complement and support these general justice outcomes. A case study focused on identifying the justice outcomes that survivors of a particularly prevalent and impactful legal problem – intimate partner violence (IPV) – seek demonstrates how this can be done. 

HiiL aspires to repeat this iterative research process for the other most pressing legal problems people face globally, and use these combined findings to refine and improve upon the list of general justice outcomes offered here.

In the final sections of the policy brief, we show how the general justice and problem-specific outcomes we identified can be measured in practice – for example in a JNS survey or by practitioners to assess client satisfaction – and what steps are still needed to make people-centred outcomes monitoring a reality in the justice sector.

2. Identifying justice outcomes

A review of the most relevant literature on justice outcomes reveals that few efforts have been made to conceptualise justice in terms of specific, measurable outcomes that are relevant to people’s lives and not only in the abstract.

The concept of justice is often broken down into four core dimensions (Colquitt 2012; Colquitt & Rodell 2015). Each of these dimensions lays out a particular vision of what justice is or should be, and therefore gives insight into what outcomes a justice service or process should deliver.

Alongside Colquitt and Rodell, Verdonschot et al. (2008) advanced the outcomes literature by introducing a measurement instrument aimed at assessing the quality of a justice outcome (which they defined as, for example, a decision by an adjudicator, or an agreement between two parties) from the perspective of the person seeking justice. In addition to the four justice dimensions identified above, Verdonschot et al. (2008) considered a number of others identified in the theoretical and empirical literature. They ultimately included the following 10 indicators in their measuring instrument:

In the years since Verdonschot et al. (2008) identified these indicators, HiiL has experimented with different ways of asking people around the world about their experiences accessing justice. For the past eight years, HiiL’s JNS surveys have included questions about the justice outcomes they achieved. This is one of the few attempts that have been made to systematically measure the positive results or changes in well-being that people with legal problems achieve through the resolution process (OECD 2019). 

HiiL’s most recent JNS surveys measure justice outcomes in two ways:

2.1 Eight general justice outcomes that people with legal problems seek

Reflecting on the work of Colquitt, Rodell, and Verdonschot et al., we built on our past efforts to measure how people experience justice and identified a list of eight general justice outcomes that people seek when they are faced with a legal problem. These outcomes are more firmly rooted in the literature than those previously measured in HiiL’s JNS surveys. At the same time, they are less abstract and more people-centred than the indicators identified in the literature, because they centre around individuals rather than institutions. Legal pragmatism and formal justice are for example not reflected in this list because they relate to the way laws are applied and judicial decisions are made, rather than to justice as people experience it in their daily lives. Indicators related to procedural, interpersonal, and informational justice were also excluded because they pertain to the quality of the resolution process rather than the tangible outcomes it delivers.

General justice outcomes

Understanding what happened
Coming to a shared understanding of what happened and the harm it caused is an important first step in restoration (restorative justice) and resolution. “Understanding what happened” is one of the seven general justice outcomes measured in the JNS survey.
Acknowledgement of role or responsibility
Acknowledging who was involved in or responsible for what happened and the harm caused is central to restoration and reintegration (restorative justice). This outcome combines two justice outcomes measured in the JNS survey: “knowledge of who was responsible” and “an apology.”
Fair distribution of resources or responsibilities
Distributing resources or responsibilities in a fair way – for example according to the equity, equality, or need criteria identified by Verdonschot et al. (2008) – is the defining feature of distributive justice. “Fair distribution” is one of the four dimensions the JNS survey uses to assess the quality of a justice outcome.
Damage restoration
Restoring what was lost, damaged, or violated is necessary for compensation (distributive justice) as well as reparation (restorative justice). “Damage restoration” is one of the four dimensions the JNS survey uses to assess the quality of a justice outcome, and “compensation for loss of income or property” is one of the specific outcomes it measures.
Relational restoration
Repairing the relational harm caused by a legal problem is important to restoration and reintegration (restorative justice) as well as transformation (transformative justice). “Repaired relationships between people” is one of the justice outcomes measured in the JNS survey.
Harmony within the community
Achieving harmony within the community is closely related to, but not that same as, repairing relational harm. This outcome was added to reflect the reality that it is possible for the relationships between parties to a conflict to be repaired without those people being accepted by the wider community. This is necessary for their reintegration (restorative justice).
Security
Safety and security – whether physical, psychological, or financial – is necessary for people to feel at peace and move on with their lives in the aftermath of a legal problem. “Physical or financial security” is one of the justice outcomes measured in the JNS survey.
Prevention
People who have been burdened by a legal problem want to resolve it and also prevent it from happening again. “Problem resolution” – which relates to enforcement and prevention – is one of the four dimensions the JNS survey uses to assess the quality of a justice outcome, and “prevention” is also one of the justice outcomes measured in the JNS survey.

3. Identifying problem-specific justice outcomes

When people are asked about the justice outcomes they need, they are likely to think about the positive results or changes that would address the specific legal problem they are facing. In order to systematically measure and monitor justice outcomes, it is therefore important to identify the outcomes that people with particular types of legal problems – problems related to land, family, neighbours, employment, domestic violence, or crime – seek. The eight general justice outcomes identified above serve as broader outcome categories within which problem-specific outcomes can be placed and measured. 

Identifying and operationalising problem-specific outcomes allows justice practitioners to assess the extent to which their services are meeting the needs of a particular client population. It also helps HiiL to determine whether the eight general justice outcomes identified above are sufficiently inclusive or need to be further refined in the future.

Like the process of identifying general justice outcomes, the process of identifying problem-specific outcomes begins with a review of the most relevant literature. This should ideally consist of studies in which people who experienced the relevant legal problem were directly surveyed or interviewed about the outcomes they sought in the justice process. In order to create a truly people-centred list of problem-specific outcomes however, it is necessary to speak directly with the people who have experienced the problem and the practitioners who support them. This can be achieved through one-on-one interviews or focus groups that explore the following questions:

These interviews or focus groups should ideally be conducted across multiple countries, to reduce the risk of identifying outcomes that are specific to a particular place or way of life. Once the results of the interviews or focus groups have been analysed, a final list of problem-specific outcomes can be created based on the combined inputs from the literature and face-to-face qualitative research.

3.1 Case study: 21 justice outcomes that survivors of intimate partner violence seek

We followed the methodology described above to identify the outcomes that survivors of a particularly prevalent and impactful legal problem – intimate partner violence (IPV) – seek. The resulting case study demonstrates how problem-specific, people-centred outcomes can be defined. It identifies 21 outcomes that survivors of IPV consistently seek and describes in detail the myriad justice and support mechanisms that survivors of IPV in Uganda, Nigeria, and the Netherlands used or looked for to achieve them.

In the next section, we explain how justice practitioners, ministers, and policymakers can use the 21 IPV-specific outcomes and the eight general justice outcomes we identify to systematically measure and monitor the extent to which justice processes and services are meeting people’s self-reported needs.

IPV-specific outcomes

4. Measuring justice outcomes

Operationalising the justice outcomes we have identified is important for ensuring that this research does not remain a purely theoretical exercise.

According to the OECD, measuring the perceived quality and fairness of the outcomes that users of justice services receive is necessary for understanding access to justice and legal need (2019). This is challenging because experiences of justice are subjective. Justice outcomes that are important to one person may be less relevant to another. The results that people seeking justice want to achieve may also change over time, or be at odds with the wishes of their community or society at large. Despite these difficulties, systematically measuring and monitoring the justice outcomes people seek is a worthwhile endeavour. 

As a first step towards people-centred outcomes monitoring in the justice sector, we have phrased the 29 justice outcomes introduced above such that they can be asked about and assessed on a 5-point Likert scale. This makes it possible to measure the quality of a justice process or service in terms of the outcomes it delivered for the user.

The general and IPV-specific measurement instruments we provide below can be used in the following ways to increase access to people-centred justice:

These measurement instruments are prototypes and have not yet undergone user testing. The phrasing of each outcome-specific question can and should be adapted to the context in which it is being asked, such that the relevant respondents are able to understand it and answer as accurately as possible. The outcomes that a justice practitioner measures with these tools may also need to be adjusted to reflect the type of justice process or service they provide.

General justice outcomes measurement instrument (prototype)

Please answer on a scale of 1-5
Understanding what happened
To what extent did the justice process or service increase your understanding of what happened?
Acknowledgement of role or responsibility
To what extent did the justice process or service encourage you and the other parties involved to acknowledge your respective roles in or responsibility for what happened?
Fair distribution of resources or responsibilities
To what extent did the justice process or service result in a fair distribution of resources or responsibilities?
Damage restoration
To what extent did the justice process or service restore what was lost, damaged, or violated?
Relational restoration
To what extent did the justice process or service restore or improve your relationship with the parties involved?
Harmony within the community
To what extent did the justice process or service increase your ability to live in harmony with the broader community?
Security
To what extent did the justice process or service increase your sense of security?
Prevention
To what extent did the justice process or service prevent the legal problem you experienced from happening again?

IPV-specific outcomes measurement instrument (prototype)

Please answer on a scale of 1-5
Increased safety from IPV
To what extent did the justice process or service increase your safety (protect you) from IPV?
Increased economic independence
To what extent did the justice process or service increase your ability to support yourself economically?
Increased residential independence
To what extent did the justice process or service increase your ability to live independently?
Improved physical health
To what extent did the justice process or service improve your physical health?
Improved mental health
To what extent did the justice process or service improve your mental health?
Increased confidence
To what extent did the justice process or service increase your confidence?
Understanding of the IPV the survivor experienced
To what extent did the justice process or service increase your understanding of the IPV you experienced?
Understanding by the perpetrator of the harm they caused
To what extent did the justice process or service increase the perpetrator’s understanding of the harm they caused?
Acceptance of responsibility by the perpetrator for the harm they caused (accountability)
To what extent did the justice process or service encourage the perpetrator to take responsibility for the harm they caused?
Prevention of the perpetrator from harming other people
To what extent did the justice process or service prevent the perpetrator from harming other people?
Healthy change in relationship with the perpetrator
To what extent did the justice process or service produce a healthy change in your relationship with the perpetrator?
Improved well-being of the perpetrator
To what extent did the justice process or service improve the overall well-being of the perpetrator?
Improved well-being of their child or children
To what extent did the justice process or service improve the overall well-being of your child or children?
Healthy change in relationships within the family
To what extent did the justice process or service produce a healthy change in relationships within your family?
Decreased isolation within the community
To what extent did the justice process or service decrease your isolation within the community?
Understanding and acknowledgement by the community of the harm caused by IPV
To what extent did the justice process or service increase your community’s understanding and acknowledgement of the harm caused by IPV?
Proactive prevention of IPV by the community
To what extent did the justice process or service encourage your community to take proactive measures to prevent IPV?
Understanding of the process
To what extent was the justice process or service explained to you in a way you understood?
Agency in process
To what extent were you given agency (the ability to take action or to choose which action to take) throughout the justice process or service?
Empathetic listening in the process
To what extent were you empathetically listened to throughout the justice process or service?
Competent and unbiased treatment in the process
To what extent was the justice process or service delivered in a competent and unbiased way?

5. Next steps towards outcomes-based working in the justice sector

Through our research on the specific outcomes sought by IPV survivors, we learned that systematically identifying, measuring, and monitoring the justice outcomes people seek comes with a number of challenges. We reflect in detail on the conceptual and methodological questions that this work raises in the final section of the case study that accompanies this policy brief.

In spite of these challenges, we believe that this kind of research is necessary to promote the focus on outcomes for people that the OECD and others make clear is foundational to people-centred justice delivery. With these next steps, we hope to continue to develop and test this innovative way of working:

6. Authors

This Policy Brief was written in a collaboration with Isabella Banks and Manon Huchet-Bodet.

[1] Restorative justice refers to the repair of harm caused by crime or conflict.

[2] Transformative justice refers to the transformation of relationships between parties to crime or conflict through a focus on structural causes.

[3] Legal pragmatism focuses on the practical consequences, rather than principles, of judicial decisions.

[4] Formal justice refers to justice done through the maintenance and equal application of laws.

Delivering People-Centred Justice, Rigorously

HiiL POLICY BRIEF

Delivering People-Centred Justice, Rigorously

April 22, 2022

Photo by fauxels from Pexels

There is growing recognition of a new paradigm that can help us deal with the challenge of achieving SDG16.3 – access to justice for all: people-centred justice. A way of strengthening justice systems by putting people and the outcomes they need at the centre, not institutions and existing procedures. The social and economic benefits of applying that new paradigm are becoming clear. It’s time for the next steps. Doing it. In this policy brief we share what is emerging about developing and implementing national people-centred justice programmes. We show that actionable components of such programmes are emerging, which can be funded, integrated and managed coherently. This approach should be further developed. 

1. More security, justice at risk

This year, 2021, the UN Secretary General presented his agenda for the tremendous challenges the world is facing as the UN celebrates its 75 anniversary. In his report Our Common Agenda, he makes two important observations to the UN member states – a general one and one relating to justice. First, he notes that “failing to deliver what people need most, including basic services, drives mistrust, regardless of how open institutions are to public participation.” This, he concludes, is seriously eroding the social contract. Secondly, he notes that while the 2030 Agenda promises to provide access to justice for all, “many justice systems deliver only for the few.” In other words, they are part of the delivery problem.

Data shows that justice systems are of little help when people experience injustice. The most pressing justice problems occur when jobs, housing, land, family relationships or public services essential for survival are at stake. Only 32% of people experiencing a justice problem report that it is resolved in a satisfactory way. More serious and more impactful problems have lower resolution rates [1]. An additional 10% is satisfied with the process so far. People are hardly using the justice services that governments provide. Only 7% use a court or some other form of tribunal. 8% get advice from a lawyer or another professional [2].

The good news is that countries are becoming more successful in providing security and preventing crime. Less people die because of violence, natural disasters or accidents. Governments are increasingly adept in enforcing rules [3].

But the highly regarded Rule of Law Index shows that more safety does not equal more justice. Indicators suggest that the protection of human rights is deteriorating over the past 5 years [4]. The worldwide trend is that people feel less protected in their relationship with powerful government agencies. Corruption is a growing concern. Increasingly, criminal law and civil law procedures are seen as disappointing ways to resolve issues between people in a sustainable way. Of the 25 most populous countries, only two improved their overall score on the rule of law between 2020 and 2021: the DRC, coming from an extremely low level, and Germany [5].

Imagine that the health care system would only cure 32% of diseases; that only a tiny minority of youngsters would attend school; that the use of renewable energy would decrease. Yet equal access to justice for all is a sustainable development goal on an equal footing with health, education and making progress on climate change [6].

2. On a mission

People-centred justice resolves legal problems people have, prevents them from occurring, is tailored to what people need in order to move on and, therefore, creates opportunities for people to fully participate in their societies and economy.  It puts people and the outcomes they need at the centre, not institutions [7]. Given the dire assessment of the Secretary-General, it now urgently needs practical implementation in as many countries as possible. Partnerships need to be formed for this, bringing together investors, researchers, designers of new justice delivery processes and organisational units that will implement it. Existing legal institutions such as courts, prosecution and law firms, will need to co-exist and co-operate with organisations bringing in expertise from a range of disciplines and using a range of methods to reach out to people experiencing justice problems. What can a Minister of Justice, Chief Justice or Chief Prosecutor, or Member of Parliament who has just joined the Judicial Committee propose? What strategic and programming options are available to a director-general with a large ODA budget, the head of a philanthropic organisation or the CEO of a social impact investment organisation who are looking to make a difference in the field of justice? There is good news for them. A concrete approach is emerging. It comes from the pioneering work of many, from all the partners that worked on the analysis and the conclusions of the report of the Task Force on Justice [8]. We see it in ministerial summits organised by the Pathfinders for Justice and the Justice Leaders [9]; the OECD, who has led on further refining the concept of people-centred justice and developing key elements of its implementation, with more research to come [10]; the Portuguese EU Presidency, which organised a large conference on the topic; the World Justice Project, as global leader on measuring justice and international convenor [11], but also the Elders, Namati, the Open Society Justice Initiative, the Open Government Partnership, and many more. Furthermore, it derives from our own work, innovating justice services and monitoring justice systems in many countries. Most importantly, it also comes from the people-centred justice that is already created by researchers, practitioners and innovators in every country in the world and their clients. They find out when people experience procedural or substantive justice, experiment with new ways to stop crime, try to bring in mediation elements in their work, discover new ways to inform people about their rights, pilot online dispute resolution, solve problems in a practical way and help people to negotiate fair solutions. As judges, as managers of pilots, as ceo-s of justice startups, as police officers, as social workers, as lawyers and in myriads of different combinations. And most reassuringly, as people having serious conflicts and being able to resolve them in a fair manner with their neighbour, their former-spouse or the perpetrator that made them into a victim. It also comes from learning from how governments are tackling Covid-19 and climate change: following the trajectory of applied scientific research, believing in public-private cooperation to supply solutions at scale, and empowering and enabling leadership in the sector that is willing to accept accountability for both security and achieving fair, effective outcomes for citizens experiencing injustices. They don’t all say exactly the same thing and this Policy Brief does not represent a fully shared consensus nor the final wording on the matter. The elements of the emerging approach can be described in many ways. However, overall, the components set out below emerge steadily and we bring them together in an integrated approach.

3. Five main investments

When we describe this approach in the following paragraphs, we assume this would actually be turned into a programme, that would be run by a partnership of organisations, perhaps by a task force [12]. We distinguish five elements, each having a different target group and constituencies. Each element requires investments. For each element, experts have been developing methods, some already very sophisticated, some piloted at scale, some still in early design stage. Together, these methods can become the building blocks of a people-centred justice programme.

3.1 Data

First, we need reliable data. Increasingly, survey data have become available, showing the epidemiology of justice problems and the impact of each problem [13]. From these data, the countrywide burden of injustices can be calculated. The data also show what interventions people use and give some insight in the effectiveness of interventions. Together with the World Justice Project and UN organisations, HiiL is collecting these data and standardising the methods for this. This requires templates for questionnaires, data collection protocols, methods for analysing data, privacy protocols, storage conventions, ways to exchange data, standards for data collection during service delivery and ways to allow for comparison between countries.

Ideally, the partnership we are proposing ensures such data are available for each country and that data collection protocols exist for organisations that handle justice problems at scale. Courts, prosecution, legal aid organisations and websites offering legal information would all benefit from a standard taxonomy of justice problems, for which the OECD has done some groundwork already [13].

Anchoring data collection and sharing of results should take place as well: in a Ministry of Justice, or preferably in an independent academic institution, thinktank or national bureau of statistics. The data should be available on a yearly basis, so progress can be monitored, interventions can be compared and action can be taken. This all should be focused on increasing the resolution rate through fair agreements and acceptable decisions by courts or other third parties.

Ideas have emerged for setting up an international body that could set up a platform that develops shared standards and protocols, makes data collection tools available and serves as a shared repository of data.

3.2. Evidence-based practice

Evidence-based practice, sometimes briefly referred to as ‘what works’, is a second focus area that is emerging. It is an important driver of effectiveness in the health sector and is already being used in the field of crime prevention. This will not happen spontaneously, but requires a systematic effort.

Domestic violence is one of the most pressing justice problems. Thousands of research papers evaluate attempts to apply what works to stop it and to restore relationships soured by violence where possible. The effects of promulgating domestic violence laws and of sanctioning aggressive behaviour are well known.

One gap in these efforts that needs to be filled is to standardise the desirable outcomes that are being evaluated. Currently, each project tends to monitor different outcomes. It could be a decrease in violence, improved psychological well being, satisfaction with the procedure or the conviction rate for perpetrators. Standardising the outcomes that need to be monitored, based on what is most important for the people having to deal with domestic violence issues in their lives, can be an important step forward towards more effective solutions.

Once outcomes have been defined, knowledge can be translated into guidelines for coping with domestic violence in a way that is agreed (or accepted) between the people involved. Recommendations on ‘what works’ in which situation can subsequently be applied by the many practitioners who help women and men with such issues. In this way, they and their clients can benefit from interdisciplinary know-how.

Police, lawyers, judges, informal justice providers in villages, clerics, social workers, mediators, doctors and therapists now all apply their own ‘treatments’, informed by their own disciplinary knowledge, and guided by their own experience. At the receiving end, women who are victims have little idea what they can expect. They would benefit enormously if they could rely on their helpers applying proven interventions.

In our proposed partnership, the programming would ensure that guidelines are made available for the five most pressing justice problems first: land/housing problems, neighbour conflicts, family disputes, employment conflicts and violent crime [15]. And then, for the next priorities, probably including personal injury, debt problems, health care issues and social security.

Evidence-based practice requires integration in the setting where local service delivery has to take place. Know-how from international research needs to be combined with the experience of practitioners and the needs of users in a particular location. This will lead to a local version of the guideline.

A crucial next step is to draft and execute implementation plans with organisations of justice practitioners. Police, prosecutors, social workers or informal justice providers in villages want to be effective. Each operates in a different incentive structure which may or may not be conducive to applying what the evidence suggests. Implementation science has developed valuable insights on the factors that need to be taken into account. Demand for ‘what works’ from users of services and stakeholders is one important factor. Legal mandates, the support from role models in the profession and of the line management are relevant as well. Implementation may be costly or lead to immediate savings in time or effort. Evidence-based practice is more likely to be accepted if the practitioners share a culture of wanting to be effective and successful in achieving results for clients. Learning collaboratives need to be established [16]. On the basis of these insights implementation can be stimulated. Bottlenecks can be identified and remedied, if necessary by changes of the guideline in the direction of interventions that are more practical in the particular setting.

3.3. Gamechanging justice services

An important element of the mission is to ensure that the delivery models for these gamechangers are further developed. Each of them needs to implement evidence-based practice. This requires a support structure consisting of IT (case management system) and standard models for human resources, financial management and monitoring outcomes. Next, these models have to be implemented, building on the capabilities that already exist in the local setting and ensuring sustainable funding.

Innovation labs are a proven method to ensure that this is happening and to avoid the mistakes of copying foreign laws without ensuring that the local political economy will support it [17]. Creating spaces to incubate and accelerate justice startups also works. Most of the time, the gamechangers can be seen as upgrades or extensions of innovations that are already happening in the judiciary, in legal services or in the local community [18].

3.4. Enabling environment

Bottlenecks in the justice marketplace include: laws and regulations and the often complex adversarial procedures they codify. Regulation that makes it hard to implement innovations with attractive revenue and operational models. The financial arrangements in the justice sector, from budgeting processes to fees and subsidies, and the lack of investment room. Procurement rules which make it difficult for courts and governments to implement innovations that are developed by innovators. The challenge of making this part of national strategies and budget cycles.

National ministries of Justice need to become less the top-down organiser, and more the unleasher of innovation potential, the quality assurer, the facilitator and connector, and, where needed, the bearer of financial risks that the private sector cannot yet carry alone. All with that one goal: more prevention, more resolution, for more people.

The good news: examples of changing this are gradually emerging. Regulatory sandboxes, room for new kinds of partnerships, and new ways to come together as justice leaders to work on this.

An important element of the programme is to facilitate justice leaders to come together to open this market and create a more enabling environment.

This can be a considerable task. Economists identified many “market failures”, coordination failures and transformation failures.

From a political economy perspective, a broad commitment to innovation is needed, so stakeholders will start to invest in the belief that others will invest as well. When ministries of Justice are unlikely to change their approach to enabling legislation, it is unlikely that courts or legal services organisations will invest in piloting innovations. As The World Bank explained in its World Development Report 2017, Governance and The Law, the policy arena – the space where groups and actors interact to change formal rules – may have to be expanded with challengers from outside the current justice institutions [19]. Justice policy making may have elements of capture by vested interests and clientelism. In some countries, politicians have members of the police and prison sector as their constituency providing votes in return for voice.

3.5. Engagement and accountability

The last component of a people-centred justice programme that needs to be in place is accountability. If you set ambitious goals in an ambitious people-centred justice programme, you need to account for whether the goals are being met. Especially in the conservative justice sector. It needs to be kept sharp, awake and focused on people, not institutions and rules. In the world of climate change, the periodic reports of the IPCC, the networks it built and the media attention it generated, fulfilled such a role. Concretely, it means setting up an ecosystem that will keep the leaders of the justice system sharp on commitments they made, results promised, and whether learnings are being implemented. There are some interesting examples of doing this in the justice field. In Niger, the États Généraux sur la Justice was set up: a multi-stakeholder body that gives the justice system a periodic ‘score card’ and that, based on that, suggests what the Ministry of Justice should focus on [20]. In the Netherlands the Geschillenbeslechtingsdelta by the internal thinktank of the Ministry of Justice fulfills a similar role [21].

4. Return on investment

A people-centred justice programme will have to show its value. It must produce benefits and change that is financially sustainable. 

Public investors may be worried that the benefits of a people-centred justice programme are sprinkled over many different constituencies and government agencies with none of them being prepared to pick up the bill. For private investors, it may not be clear how social and economic benefits can be turned into financial returns.

Given the size of the problem, it is however reasonable to assume that effective and innovative justice services will attract revenues and providers of services will be paid for their efforts. Here too, we are seeing that things are getting clearer and that data and methods are emerging that support the business case for people-centred justice programmes. They show that it may be possible to bring together different beneficiaries of people-centred justice into a consortium that is willing to invest. 

4.1 Social and economic benefits

A literature review on quantifying these benefits revealed a variety of ways programmes have defined outcomes and quantified the size of social and economic benefits [22].

We asked Ecorys, a Dutch economic advice agency to calculate the economic and social benefits of achieving a mission target of 80% resolution/prevention rates in the Netherlands. What they came back with was based on an extrapolation from three justice problems: separation, work conflict and access to social security/services. Besides the very positive results, it is interesting to see where the benefits fall and how they are structured, because this indicates who might be willing to invest.

They estimated a  0.15% contribution to GDP. This excludes export opportunities for justice services and improvements in national investment climate through better access to justice.

In monetary terms, every $1 invested is: 

The benefits are obvious. The methods for working it out can be further developed. 

4.2 Number of people affected

When making the case for investment in people-centred justice, the next step is to quantify the number of people who can benefit from evidence-based, gamechanging justice services. Data on the number of justice problems per category and their impact on people is available [23]. The World Justice Project data shows that, in cities, 48% of people had a justice problem in the past two years, 41% experienced hardship and 43% achieved a resolution, are on track to, or are satisfied. If these percentages are doubled to 80%, this would positively affect the lives of 36.000 people per million adults each year. This does not include people in custody, without a home or younger than 18 years old. It is clear: in their lifetime, each adult can expect to have several justice problems and would benefit from doubling the resolution rates.

4.3 Potential revenue streams

Public goods like education, health and justice can only be provided at scale with a sound business model. Game changing justice services can only scale and be sustainable if revenues exceed costs of delivery, so investments in future improvements can be funded. 

Data strongly suggest that people are willing to pay for effective outcomes: a better quality of life in their homes when nuisance from neighbours stops, friendly relationships in their community, or ensuring that a noisy neighbour with alcohol problems gets the help that is needed. 

Revenue models for justice services are not simple. Smart fee systems can be designed where the person needing the intervention, the other party, the local community and the taxpayer all contribute. Each of these contributors is more likely to spend money on justice services if outcomes will be more predictable, are more likely to be achieved, and can be monitored and improved. Evidence-based practice is the insurance for this. 

The good news is that people-centred justice services do not require heavy equipment and have limited environmental impact. The activities consist of exchanging information between participants. This can be done through multiple channels: online, by telephone or in person. For each of these channels, the costs tend to be dropping, with the exception of receiving people in courtrooms, in prime real estate, in the centre of towns and cities. Courtrooms are not likely to be the main channel for game changing justice services.  The costs of fact finding can be high in case of crimes; in most countries these are already covered by security budgets.

5. Financials

This way of programming is being worked on in the Netherlands, as one of the first movers to invest in the knowledge infrastructure that will benefit any country implementing people-centred justice [24]. As part of this effort, we had to work out the financial parameters for such a programme.

In a country like The Netherlands we worked out that a 5 year people centered justice programme aimed at increasing prevention and resolution rates with 50% from where they are now would cost around 340 million euros.

When we worked this out for a country comparable to Uganda in terms of population and economy, we came to around 100 million euros for 5 years, with roughly the same percentages. 

A rough estimate would also be that less of these investments would be needed for a state that is set to become a next mover.

6. Teaming up

Who would be involved in execution? Is there a ‘team’ ready to take this on? One way to organise this would be to follow the mission approach for grand societal challenges. Mariana Mazzucato, who inspired this approach, suggests we need to think bigger and mobilise our resources in a way that is as bold and as inspirational as the moon landing – this time to the most ‘wicked’ social problems of our time. 

Her research shows that governments played an indispensable role in major technological breakthroughs in the 20th century and they are best placed to facilitate such breakthroughs. In the 21st century, she suggests ensuring that corporations, society, and the government coalesce to share a common goal. 

Following how this is done in other sectors, the five core elements of the national programme could be organised as follows: 

7. Investment partnership

As becomes clear from the above, investments in people-centred justice programmes will have to come from a carefully balanced partnership, depending on the local situation.

Ministries of Justice may, on the one hand,  be too close to the vested interests of courts, lawyers, prosecution and police, organisations that are overburdened and have powerful lobbies. Without giving the Ministry a stake, success is also unlikely, however.

There will also be a need for investment partners. These can be national investment funds and international partners, like international or regional development banks. So-called catalytic philanthropists, who bring in money but also entrepreneurial skills and the mission oriented approach required. For lower income countries, the bilateral donor community that focuses on justice would be a partner.

Private investment by companies that are committed to people-centred justice and have an interest in growth and higher quality markets should also be considered, for example, Legal Zoom, Clio, Arag).

A wealth of knowledge exists on how to put together arrangements that share risks and returns in an optimal way [25].

8. Conclusion

A new way of programming is emerging in response to an urgent need to increase the prevention and resolution of justice problems around the world. To make this concrete: if resolution and prevention rates can be doubled in the next five years in 20 countries with a population of 10 million each (in the scheme of things, small countries), 7.2 million people would have their lives significantly improved. 

National people-centred justice programmes and the core components they contain – data about needs, capturing what works, scaling gamechangers, creating an enabling environment, and anchoring accountability – are, as far as we can assess, the most promising responses. The focus on improving justice delivery through the formal justice system of courts, lawyers and legal aid boards has not worked. 

Each of the five elements has been tried and tested in different environments; a people-centred justice programme brings them together. The approach is modular and integrated. `It can be accompanied with a solid business case in terms of social and economic benefits. It can provide the assurances investors need. 

This is a unique moment for ministries of Justice, judiciaries, and large funders in the justice field. Now is the time to start to understand this way of programming and to help develop it further. 

9. Authors

This Policy Brief was written in a collaboration with Dr. Sam Muller, Prof. Dr. Maurits Barendrecht, Theresa Smout, Dr. Martin Gramatikov, and Ronald Lenz.

[1] See Poverty and Access to Justice (2021), a study by HiiL, for the World Bank. Dysfunctional justice systems enhance inequality. The study shows that poor people receive worse outcomes for their legal problems. The formal and informal justice systems deliver fewer resolutions. The legal problems that poor people encounter have a greater impact on their lives.

[2] World Justice Project, Global Insights on Access to Justice 2019, Summary Statistics Database. Averages for 101 countries calculated by authors.

[3] World Justice Project, Highlights and data trends from the WJP Rule of Law Index 2021, October 2021, see slide 21.

[4] WJP, Highlights, Slide 21.

[5] WJP, Highlights, Slide 18, 22 and 23

[6] Sustainable development goal 16, 3, 4 and 13.

[7] The Task Force on Justice, report (2019). It was captured in the Hague Declaration on Access to Justice and referred to in numerous inter-ministerial and other high level gatherings in the past 18 months. A growing group of partners, coordinated by the Pathfinders for Justice, is working to operationalize people centered justice. A Justice Action Coalition has been set up, consisting of countries that want to lead on realizing it.

[8] See all the NGO and thinktank members of the Justice Alliance, here. For the list of actively participating States, see here.

[9] See Global Week for Justice 2020, here.

[10] See Equal Access to Justice for Inclusive Growth, here.

[11] See World Justice Project, here

[12] See here for more in the approach, our 2021 trend report Delivering Justice, Rigorously.

[13] HiiL Justice Dashboard, World Justice Project, Atlas of Legal Needs Surveys, 2021. See also, working group paper for the Task Force on Justice, Measuring the Justice Gap.

[14] OECD, Legal Needs Surveys and Access to Justice, 2019.

[15] See also, Task Force on Justice report (2019), p 66.

[16] See, for instance,  Stirman et al, Bridging the Gap Between Research and Practice in Mental Health Service Settings: An Overview of Developments in Implementation Theory and Research, Behavior Therapy 2016, p. 920-936.

[17] The World Bank, 2017 World Development Report, Governance and the Law,

[18] For an overview of innovation space, see the report of the Innovation Working Group of the Task Force on Justice. See also a recent HiiL Study, done for GIZ, that looks at the use of digital technologies in judicial reform and access to justice cooperation.

[19] See note 15.

[20] See http://www.justice.gouv.ne/index.php/etats-generaux

[21] Literally translated: the dispute resolution delta. See https://www.eerstekamer.nl/overig/20201214/geschillenbeslechtingsdelta_2019/meta

[22] Moore and Farrow, Investing in Justice: A Literature Review in Support of the Case for Improved Access, Report prepared for the Task Force on Justice, Canadian Forum on Civil Justice, August 2019. See here.

[23] See the HiiL Justice Dashboard and the dashboard of the World Justice Project.

[24] To be submitted to the Dutch National Growth Fund.  See here

[25] Laplane and Mazzucato, Socializing the risks and rewards of public investments: Economic, policy, and legal issues. Research Policy 49S (2020) 1000082.

Community Justice Services Policy Brief

HiiL POLICY BRIEF

Community Justice Services

March 22, 2022

Photo by fauxels from Pexels

Building on the merits of informal justice and alternative dispute resolution processes, many countries have developed community justice or informal justice programmes. Although informal justice processes come in many different forms, they tend to have a participatory nature, strive for consensus, focus on social harmony and promote restorative (conciliatory) solutions. They are similar to mediation, but can also have elements of adjudication. Another advantage of informal justice processes or community justice services is that the community can help to ensure compliance of decisions. 

Community justice services seem to be an indispensable element of a justice system that provides equal access to justice for all. Gradually, policymakers are finding out how to scale the programmes to a regional or country level. In this policy brief, we list a number of critical success factors that we developed with insights from leading experts in the field of community justice services. We also used our experience in innovation labs for community justice services and benefited from our work with justice startups implementing projects in communities. The findings in this policy brief aim to inform municipal authorities, ministries of justice and leaders in the court system about the way they can scale community justice services, whilst respecting the needs and capabilities in the communities they intend to serve. 

We expect community justice services to grow, because formal justice systems cannot serve people at sufficient scale for all their pressing justice problems. Community justice services have to overcome barriers to growth, by finding sustainable revenue models, by developing an oversight and monitoring system connected to the formal justice institutions, and securing a long-term commitment from national governments or donors. 

1. Justice close to home: A gamechanger?

When working on access to justice for all, experts and practitioners point towards informal dispute resolution in communities as a way to close the access to justice gap [1]. Speaking about informal justice, one leading author mentions the perceived advantages that mirror the weaknesses of the formal justice system: financially more sustainable, fast, close to people’s homes, grounded in local culture, and easier to understand. Although informal justice processes come in many different forms, they tend to have a participatory nature, strive for consensus, focus on social harmony, and promote restorative (conciliatory) solutions. They are similar to mediation, but can also have elements of adjudication. Another advantage of informal justice processes or community justice services is that the community can help to ensure compliance of decisions [2].

Justice needs surveys show that informal justice and conciliatory processes are appreciated by users [3]. There is clear potential for growth. Unleashing this potential requires overcoming a number of risks and disadvantages, including lack of predictability and coherency, discrimination and exclusion of marginalized groups, weak procedural safeguards, and use of sanctions that do not conform with human rights and criminal justice standards [4].

1.1 Scaling models for community justice services

Building on the advantages of informal justice and alternative dispute resolution processes, many countries have developed programmes that have the ambition to scale towards the country level. This comes with increased standardisation and formalisation of the services, for which we found a number of models that are being used internationally.

The literature reviewing various forms of community justice programmes and interventions in a particular country is vast [5]. On our Justice Dashboard the reader can find references to examples and to the models. 

In this policy brief, we focus on how to scale such programmes in a systematic way, building on our data collection and our work with justice innovators and justice leaders in Africa, the MENA region, Latin America and Europe. In the past, we did case studies on Houses of Justice in Colombia, Local Council Courts in Uganda, Gram Nyayalaya in India, Abunzi in Rwanda, Judicial Facilitators in Latin America and worked with community paralegal programmes and organisations offering community mediation in a range of countries.

 

Community Justice Service Examples

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
Philipines

Katarungang Pambarangay
Ruwanda

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

The map shows some of the prominent examples of community justice services available in different parts of the world.

1.2 Local problems, local and similar solutions

Community justice services tend to work on justice problems between people living closely together, such as neighbour problems, land issues, family problems, and problems with the local authorities. They address justice issues via mediation and conciliation as well as focus on bringing together people within the community so they contribute to solutions, which conform to social norms. Community justice services are more common in rural areas than in cities and are more prevalent across middle and low income countries. These services are provided by community authorities, trusted members of the community, or public officials elected or endorsed by the community. They can relate to customary justice in a tribe, or they may have roots in a religion. Community justice services can be connected to local or central government, with the potential to scale across borders. 

Community justice services have been an important facet of the communities they serve historically. They not only have a substantial reach in providing people-centred justice but they also achieve a considerable impact on people’s lives. They emerge organically and exist close to the people whose justice challenges they address. They are also the most frequently resorted to justice service delivery models across different countries. However, our analysis shows that there are barriers to scaling community justice services and issues with their effectiveness. 

At times, they face issues with integration with the formal legal systems especially in getting their decisions recognised or enforceable by the formal justice system. Funding challenges also remain. Owing to their informal nature, which grants them effectiveness, community justice services may be more likely to be dominated by power structures that exist in the community.

This policy brief takes into consideration the discussions that emerged during the roundtable conversations of the HiiL Working Group on Community Justice Services as well as cases developed by the members of the Working Group in analysing different characteristics of community justice services and makes policy recommendations for increasing their effectiveness. 

1.3 Methodology

To answer the question “How might we increase access to justice for people by scaling and improving community justice services?”, we formed a working group of external experts. To guide the discussions with working group members, we identified the following questions: 

The working group engaged with these design questions and from this dialogue emerged the critical success factors that can help in scaling community justice services.

To select members for the group, we identified six experts that represented diverse demographics and expertise  (innovator, policymaker, investor, legal professional, civil society) from within and outside HiiL’s network. They are: 

*Klaus Decker, Senior Public Sector Specialist from the World Bank, who joined us in the initial phase of the consultation. 

We organised six roundtable discussions between June 2021 to February 2022 to facilitate the conversations on the design questions among the experts. 

This policy brief summarises the findings of the round table discussions and lessons learnt from experiences of working group members in setting up community justice services including:

2. Critical success factors

In the sections below, we identified five critical success factors based on discussions with working group members and examples of community justice services that emerged from the conversations during the round tables. We also include main takeaways from the cases that we worked on with support from the members of the working group.    

2.1 Standardising effective working methods in a setting of scarce resources

Community justice services differ from village to village, from tribe to tribe. For example, studies show that in the Sahel region, each local tribe may have its own way of settling disputes, which may not be acceptable to another tribe in the same region [6]. Even among community justice services that did not emerge organically but have been systematically set-up as in the case of Houses of Justice in Colombia, working methods could benefit from further standardisation. Dispute resolution methods could depend less on the good nature and judgement of individual justice practitioners, more on best practices established by inter-agency coordination [7].

There is much to gain by standardising the practical steps that justice workers take to resolve a problem. A standard process can guide disputing parties through the various phases of dispute resolution, and give them an understanding of what to expect in terms of fees charged, documents required and the estimated time taken to resolve a dispute. There are two dimensions of standardising working methods, one is working methods within an organisation and two is dispute resolution methods offered to users.

With the help of experiences shared by the working group members, we have developed the following insights on standardisation and effectiveness:

2.2 Monitoring outcomes

Although community justice services are used frequently and legal needs surveys show they tend to be quite effective in resolving disputes, outcomes of the community justice services have not always been viewed in a positive light. Studies indicate that community justice providers are sometimes not very effective in resolving disputes. Outcomes may also be unfair to certain members of the community, especially the minority and marginalised members. Questions are also raised about the patriarchal nature of existing power structures and bias against women at the community level [9].

NGOs, government agencies or international donors investing in community justice services want to be sure that engagement with community justice services leads to respect for human rights [10], protection of the rights of all members of the community and brings people the outcomes they want from dispute resolution. But how can they ensure the quality of the overall programme improves over time? And how can they avoid that an isolated example of questionable behaviour in one village damages the reputation of a countrywide programme?

Systematically monitoring outcomes is a critical success factor related to these challenges. For each type of dispute, a number of desirable or undesirable outcomes can be identified. Disputants, practitioners and/or community members can be asked to what extent each of the outcomes has been achieved. Quantifying these results helps in highlighting areas where existing justice services are successful and where they are failing to meet people’s needs. Impact data also helps to attract investors looking for measurable returns and social impact. It enables governments who undertake performance-based budgeting to identify service delivery models that are effective in resolving disputes [11].

With the help of experiences shared by the working group members, we have developed the following insights on monitoring the outcomes, noting that few community justice systems have introduced systematic outcome monitoring yet:

2.3 Combining the strengths of informal justice and rights-based dispute resolution

Formal justice systems in lower and middle income countries have been derived from their colonial past, and they have replaced the traditional ways of solving disputes or the informal justice systems [13]. Today, informal justice systems are coming into prominence again, thanks to their dispute resolution methods such as mediation and focus on restoring relationships and harmony in the community. They are seen as successful because they are oriented towards solutions and outcomes that enable people to continue working and living together. A similar trend is present in high income countries where mediation or ombudsman procedures are alternatives to the formal, adversarial procedures operated by courts.

A formal court procedure aims at fair and transparent processes, ensuring equality of arms between the parties, whereas community justice outcomes sometimes have been found to discriminate against women, the poor and marginalised groups. This point also has been raised in relation to mediation in high income countries. A critical success factor for community justice services is to combine the strengths of the two types of procedures. Protection of fundamental rights that the formal justice system is designed to protect may be successfully combined with restorative ways of resolving disputes that community justice services promote.

The Working Group members began by asking firstly why such an integration is needed and if it is, what could be the nature of such an integration? To answer the question of how to integrate formal and informal justice systems, we developed the following insights using experiences of working group members:

2.4 Making community justice services affordable and financially sustainable

Resolving disputes through customary justice in rural communities is generally affordable in terms of transaction costs. The fees remain minimal, operating procedures are flexible and community gathering places are accessible for people [16].

Many community justice services in high income countries rely on the work of volunteers [17]. In low-income countries, they are funded by grants from international donors, local nonprofits or sometimes through village-level contributions as in the case of Bataka Courts. This leads to grant and donor dependence, not allowing a scalable and sustainable service to emerge. Those funded by the government do not receive adequate funds so their infrastructure and service delivery is affected [18].

The system may only exist in some rural communities, or be piloted in one part of a city, not reaching countrywide coverage. In order to achieve consistent quality, guidelines and operational working methods need to be developed and improved. Training is needed. Monitoring outcomes for each justice problem that is being addressed requires interaction between users and practitioners. Aggregating outcome data on a programme level requires a registration system and analysis.

With the help of experiences shared by experts, we recommend the following insights and approaches to make the community justice services affordable and sustainable:

2.5 Building scale from the ground up

There are many barriers to scale the community justice practices. Only a few countries succeeded in successfully scaling community dispute resolution mechanisms to a level where they resolve 20% or more of justice problems. The models mentioned in section 1 each have their own trajectory towards achieving regional or national coverage. 

Scaling should occur by developing a model that can be replicated and then piloted to test effectiveness and sustainability. Using experiences of experts, we have developed the following insights on scaling:

3. Outlook

Community justice services or informal justice are an indispensable element of a justice system that provide equal access to justice for all. Although informal justice processes come in many different forms, they tend to have a participatory nature, strive for consensus, focus on social harmony and promote restorative (conciliatory) solutions. They are similar to mediation, but can also have elements of adjudication. Another advantage of informal justice processes or community justice services is that the community can help to ensure compliance of decisions. 

Building on the advantages of informal justice and alternative dispute resolution processes, many countries have developed programmes that have the ambition to scale towards the country level. This comes with increased standardisation and formalisation of the services, for which we found a number of models that are being used internationally.  

We expect standardising and outcome monitoring to be used increasingly, so that community justice providers can ensure quality and protect women, the poor and minorities. Policymakers can build the capacity of community justice workers with the help of guidelines that describe step-by-step processes for resolving justice problems.

When considering external interventions in community justice services, policymakers are now likely to be oriented towards strengthening the fabric of the community, stimulating the parties to conflicts to identify outcomes that are effective for their relationships, whilst promoting dialogue about improving relationship structures.

We expect community justice services to grow, because formal justice systems cannot serve people at sufficient scale for all their pressing justice problems. Community justice services have to overcome barriers to growth, by finding sustainable revenue models, by developing an oversight and monitoring system connected to the formal justice institutions, and securing a long term commitment from national governments or their donors.

4. Authors

This policy brief was written by Kanan Dhru (Justice Innovation Advisor), Manasi Nikam (Knowledge Management Officer) and Prof Dr Maurits Barendrecht (Research Director) at HiiL

[1] Wojkowska, E. (2004). Doing Justice: How informal justice systems can contribute, UNDP;  Ubink J., (2011). Customary justice: perspectives on legal empowerment, legal and governance reform: Lessons learned, International Development Law Organisation; Coburn, N. (2013). Informal justice and the international community in Afghanistan, United States Institutes of Peace; Coyle, D. and Dalrymple, S. (2011). Snapshots of informal justice provision in Kaski, Panchthar and Dhanusha Districts, Nepal.

[2] Harper, E., (2021). Customary Justice: From Program Design to Impact Evaluation.

[3] HiiL, (2012). Towards basic justice care for everyone: Challenges and promising approaches.

[4] Ibid.

[5] Röder, T. J. (2012). Informal justice systems: challenges and perspectives. Innovations in Rule of Law, 58; Conteh et al., (2012). The Costs and Benefits of Community-based Justice in Sierra Leone, Technical Report; Chirayath, L., Sage, C., & Woolcock, M. (2005). Customary law and policy reform: Engaging with the plurality of justice systems.

[6] HiiL (n.d). Community Justice Services, Last accessed on 22/02/2022

[7] Botero, J., (2021). Case study on Houses of Justice in ‘Delivering Justice, Rigorously’.

[8] HiiL, (2021). Delivering Justice, Rigorously.

[9] International Development Law Organisation, (2019). Navigating complex pathways to justice: Women and customary and informal justice systems.

[10] UN Women, Unicef, UNDP Publication, (2017). Informal Justice Systems, Charting a course for human-rights based engagement – A summary.

[11] HiiL, (2020). Charging for Justice: SDG 16 Trend Report 2020.

[12] HiiL, (2021). Delivering Justice, Rigorously.

[13] Botero, J.C, (2013). The three faces of justice: Legal traditions, legal transplants and customary justice in a multicultural world (thesis), Georgetown University.

[14] Quintanilla, E. (2004). Support for the Administration of Justice in Nicaraguaó: The Rural Judicial Facilitators Program. World Bank.

[15] HiiL, (2021). Case Study on Local Council Courts in Uganda.

[16] Harper, E., (2021). Customary justice: From programme design to impact evaluation, International Development Law Organisation.

[17] Victoria State Government, Australia. Justice and Community Safety. Last accessed on 20 March 2022; Magistrates Association, UK. Last accessed on 20 March 2022.

[18] HiiL, (2021). Case Study on Local Council Courts in Uganda.

[19] Manuel, M. and Manuel, C., (2021). People-centred justice for all: A route to scaling up access to justice advice and assistance in low-income countries

[20] Ibid.

[21] Ibid.

[22] Knake, R. N. (2018). The Legal Monopoly, by Renee Newman Knake,

[23] International Development Law Organisation, (2019). Practitioner Brief: Navigating complex pathways to justice: engagement with customary and informal justice systems.

[24] Harper, E. (2021). The enduring utility of customary justice in fragile and post-conflict states: why development actors need to stop searching for magic bullets and solve the political economy and human rights challenges associated with justice programming. The Journal of Legal Pluralism and Unofficial Law, 53(3), 342-355.

[25] HiiL, (n.d). Community Justice Services, HiiL Justice Dashboard, Last accessed on 22/02/2022

User-friendly Contracts Policy Brief

HiiL POLICY BRIEF

User Friendly Contracts

March 22, 2022
Photo by Anete Lusina from Pexels

 

Contracts are essential tools for enabling cooperation between people.  Although legal professionals are comfortable with such documents, most people find contracts difficult to understand. A growing group of scholars and innovators is trying to make contracting a more positive experience. They are developing user-friendly contracts that are fair and transparent and help people to better understand their rights and obligations. 

Two types of contract practices have emerged from their efforts: online contracting and visual, simplified and plain language contracts.  Their starting point is the user, who may be illiterate, speak a different language or just lacks the time to read a lengthy document. Paradigms behind this new development in the field of contracts include proactive law, responsive law, people law, legal design and people-centred justice. 

In this policy brief, we seek to answer the question

“How might we increase access to justice for people by scaling and improving user-friendly contracts?”

Our objective is to identify critical success factors for organisations providing user-friendly contracts that are involved in scaling and improving the quality of service delivery. 

To scale the usage of these contracts, there is a need to market the idea and its underlying vision. Online support for contracting is already taking off. Regulatory bodies need to validate the legal enforceability of visual contracts which can increase the confidence of individuals, small businesses and legal professionals in using them. As a next step, we expect user-friendly contracts to embrace principles of relational contracting to further strengthen the relationship between contracting parties. 

1. A Better Contracting Experience

Contracts between two parties outline roles and responsibilities, mode of communication and dispute resolution methods between the parties. They also provide for contingency planning, timelines and financial obligations. Lawyers draft contracts using standard or previously tested forms, clauses and templates. They try to ensure that the interests of their clients are protected by providing solutions for all contingencies, even if they are unlikely, and by making the contract enforceable and binding and unambiguous [1].

Although legal professionals are comfortable with such documents, people find such contracts lengthy, unclear and filled with jargon or legalese [2]. Research on how people experience contracts reveals that people feel alienated by contracts, assuming that the text will be interpreted literally, that parties will be obligated to perform their duties and that by signing the contract they are giving away their rights. They overlook that contracts, and contract law, can also protect them [3].

A growing group of scholars and innovators is trying to make contracts a more positive experience. They are developing user-friendly contracts that are fair and transparent and help people to better understand their rights and obligations. In doing so,  they want to safeguard fundamental relationships – at work, about money, between family members. They believe that the contracting process can facilitate better understanding between the contracting parties and improve their relationship. Their starting point is the user, who may be illiterate, speak a different language or just lacks the time to read a lengthy document. Paradigms behind this new development in the field of contracts include proactive law, responsive law, people law and legal design. 

At HiiL, we see this trend of user-friendly contracts as a promising avenue towards people-centred justice. Working from Sustainable Development Goal 16.3 – ensure equal access to justice for all – people-centred justice is a pathway to strengthen justice systems. It puts people and the outcomes people need at the centre, not institutions nor existing procedures. Of the service delivery models that deliver people-centred justice services, user-friendly contracts stand out prominently. We call them a gamechanger, when we are looking for service delivery models that are scalable, sustainable, affordable and effective.

1.1 Online contracting

User-friendly contracts encompasses online contracting, plain language contracting, simplified and comic or visual contracts. Online contracting helps individuals and small businesses in accessing legal documents such as wills, uncontested divorce documents, power of attorney and privacy statements, terms of use, sales agreements and employment contracts. Users can customise the online templates according to their own needs, and have their agreements checked by a lawyer. These contracts are more affordable than the contracts drafted by law firms. Many of the platforms that provide online contracting also allow users to store the documents, sign them digitally and collaborate with contracting parties and team members in drafting contracts. They allow small and medium scale enterprises to register their business and trademarks, apply for patents and also connect them with vetted lawyers if they want legal advice. Some examples of companies providing automated contracts are LegalZoom in the USA, VakilSearch in India, Avodocs in Ukraine/USA and DIYLaw and LawPadi in Nigeria [4]. As the examples above suggest, user-friendly contracts have been developed primarily by private companies in both low income and high income countries. In terms of funding, online contracting has received support from venture capitalists or private equity as in the case of LegalZoom and VakilSearch [5]. In high income countries, they can face barriers in the form of opposition from lawyers and bar associations as they question the legal enforceability of contracts that are automated or not drafted by lawyers themselves. In low income countries, online contracting companies are struggling to replicate the scale their counterparts achieved in high income countries.

1.2 Visual, plain language and simplified contracting

Examples of simplified, plain language and visual contracts are Visual Contracts in the Netherlands and Creative Contracts in South Africa. Visualisation in contracts ‘refers to adding flowcharts, icons, timelines, images, matrices to highlight, clarify and explain the content [7].  So far, visual contracts have been used to develop employment contracts, forms of informed consent for medical procedures and non-disclosure agreements [8]. The main advantage of these contracts is that they make rights, obligations and terms and conditions easy to understand for the contracting parties and therefore facilitate better relationships between contracting parties.

Along with visuals, contractual terms are written using plain language unlike traditional contracts that are filled with legalese which everyday people cannot understand. It entails breaking down long sentences into shorter sentences, replacing archaic and Latin words with words that are understood by the public and other such measures. Proponents of the plain English language movement argue that laws are primarily meant to address the needs of ordinary people, and not lawyers and judges. So they should be drafted in a way that they are ‘fully intelligible’ to their primary users. The UK, USA, Australia, Canada and other English speaking countries have already begun using plain language to draft legislations and government forms [9].

Simplified contracts refer to removal of irrelevant clauses and inserting terms which are fair and balanced for both parties. The objective of simplifying contracts is to meet the needs and requirements of both parties to the contract and help them arrive at an agreement swiftly.

Visual, simplified and plain language contracts are a relatively recent addition to the field of contract design. Creative Contracts from South Africa that crafts contracts in the form of a comic, has received funding from HiiL’s Justice Accelerator as well as corporate clients [10]. Plain language and simplified contracts that facilitate relationships between contracting parties have been developed by in-house legal departments of companies such as General Electric and non-profit organisations such as World Commerce and Contracting [11]. However, both visual contracts and plain language, simplified contracts are yet to be accepted by legal professionals across the globe.

In this policy brief, we seek to answer the question “How might we increase access to justice for people by scaling and improving user-friendly contracts?” Our objective is to identify critical success factors for organisations providing user-friendly contracts in scaling and improving the quality of service delivery. Justice workers can use this policy brief to understand ‘what works’ when trying to scale user-friendly contracts and improve the quality of justice that they deliver. We use the examples of DIY Law in Nigeria, Creative Contracts in South Africa, World Commerce and Contracting in the UK and Avodocs in Ukraine to identify the critical success factors and connect these experiences to state of the art on these factors in the research literature.

In sharing this knowledge, we hope to make justice accessible, affordable and effective for our ultimate beneficiaries — the people.

1.3 Methodology

To answer the question “How to scale user-friendly contracts to increase access to justice?”, we formed a working group of external experts. To guide the discussions with working group members, we identified the following design questions:

The working group engaged with these design questions and from this dialogue emerged the critical success factors that can help in scaling user-friendly contracts.

To select members for the group, we identified six experts representing diverse demographics and expertise (innovators, policymakers, investors, legal professionals, civil society) from within and outside HiiL’s network.

They are:

We organised six roundtable discussions between June 2021 to February 2022 to facilitate the conversations on the design questions among the experts. 

This policy brief summarises the findings of the roundtable discussions and lessons learnt from experiences of working group members and other innovators in setting up user-friendly contracts including: 

2.Critical Success Factors

In the sections below, we identified five critical success factors based on discussions with working group members and examples of and to scale user-friendly contracts that emerged from the conversations during the roundtables. We also include main takeaways from the cases that we worked on with support from the members of the working group.

2.1 Optimising the user-experience

The approach of preventive law or proactive law towards legal problems is, as the name suggests, to prevent problems from arising and achieve desirable outcomes for all parties involved. Both paradigms look beyond risk management and focus on providing clarity on rights and obligations. Legal Design which emerged from proactive or preventive law improves legal communication by providing services and products that are user-friendly. A combination of law and design thinking, it offers tools and methods to make legal documents transparent and user-centred [12].

The working group members, too, believe that user-centred design of legal documents or contracts is essential in scaling them and improving their quality. However, as of now, lawyers do not have the tools or infrastructure to develop visual contracts. Legal research databases that lawyers generally use are not programmed to highlight visuals as a result of which lawyers find it challenging to locate examples of suitable visualisations. Form books, another resource that lawyers fall back on, also do not provide examples of visualisations. The softwares that lawyers use is not equipped to produce sophisticated visuals. Most importantly, lawyers do not have the skill sets to visualise information or to literally draw [13].

To create the infrastructure necessary to develop visual, simplified contracts, we have developed the following insights along with the working group members:

2.2 Showing and optimising the benefits for client companies

The clients who purchase simplified, plain language and visual contracts are often large companies who offer contracts to their employees, suppliers and customers. The benefits derived by employees, suppliers and customers from user-friendly contracts are obvious in the sense that they understand their rights and obligations better.  But the benefits to client companies who develop and purchase user-friendly contracts have not been demonstrated [16]. To get more companies interested in user-friendly contracts, experts suggest developing a value proposition of these contracts for client companies.

To develop a value proposition for client companies, we have developed the following insights along with the working group members:

2.3 Changing the mindset of lawyers and companies on contracting

Lawyers prefer to rely on long-established standard contract terms, language, formats and precedent documents. The use of visuals in contracts is not widely prevalent.  The law school curriculum does not introduce the students to principles of legal design thinking or re-imagining the way contracting can be carried out. Law schools teach students how to draft a contract and use case laws but they do not train students on how to visualise information [20]. While plain language is comparatively more commonly utilised in the justice sector, legalese is still the norm for drafting of the contracts in the majority of the legal world. Discussions with working group members indicate that legal and business professionals are averse to removing standard clauses in contracts [21].

A part of this is also the awareness challenge. Many a times, legal professionals and businesses are unaware of visual, simplified, plain language contracts [22]. To increase the usage of user-friendly contracts, it is essential to change the mindset of legal professionals. To that end, we have developed the following insights along with the working group members:

2.4 Developing a sustainable financial model

Previous research conducted by HiiL indicates that user-friendly contracts can adopt two types of pricing models. One, where the company charges a fixed fee differentiated per type of product and two, where the company offers contracts for a subscription fee. Companies offering online contracts usually charge a subscription fee such as LegalZoom in the USA and LawPath in Australia [25]. In case of contracts that are visual, simplified or presented in plain language, client companies request consultants/consulting companies to craft the contract. Insights from case studies and discussions with working group members indicate that:

2.5 A supportive regulatory environment

Providing user-friendly contracts remains an area of expertise for private providers and the regulatory barriers are not as significant as experienced in some of the other gamechanger categories. The barrier to overcome is that of slower adoption and integration by the legal fraternity in general. Having said that, there are still some regulatory impediments to overcome. LegalZoom, a leading provider of user-friendly contracts in the USA, has had to fight the legal provisions that only lawyers are allowed to provide legal advice. It was challenged by the American Bar Association in multiple jurisdictions [26].However, as the platform gained popularity among people, bar associations made space for the providers of user-friendly contracts to operate, provided that customers be informed by the private providers that such contracts are not equivalent to legal advice of lawyers [27].

Over a period of time, several online contracting platforms have emerged in high income countries which indicates that the regulatory environment has not posed a challenge to their services. However, the demand for online contracts in low income countries is relatively small. People still prefer to obtain contracts from lawyers indicating the need for a change in the mind-set of people as well as legal professionals.

As for simplified, visual and plain language contracts, they are still in the nascent stages of market adoption. Most legal professionals or bar associations have so far not commented on their enforceability so there is uncertainty among legal professionals and the business community about their enforceability. However, Australia’s former High Court Chief Justice Robert French stated at a conference hosted by the University of Western Australia in 2017 that there was “no reason in principle why pictorial contracts explained orally or supplemented textually or contextually could not be enforceable in the same way as any other contract[28].  Despite this remark in support of visual contracts, developers of visual contracts often find themselves facing questions around legal enforceability.

The support of regulatory bodies in the form of an enabling regulatory environment is essential in scaling user-friendly contracts. To create this enabling environment, we have developed the following insights along with the working group members:

3. Outlook

The potential of user-friendly contracts in bridging the access to justice gap is tremendous. Online contracting has already taken off in high income countries whereas in low income and middle income countries, there is more scope to expand. While online contracts provide easy access to legal documents, they also need to adopt the form of visual, plain language and simplified contracts to enable ease of understanding for users.

 

Visual, simplified and plain language contracts are emerging. To scale the usage of these contracts, there is a need to market the idea and its underlying vision. Regulatory bodies also need to validate the legal enforceability of these contracts which can increase the confidence of individuals, small businesses and legal professionals in using them.

 

The case studies of Comic Contracts and DIYLaw indicate that early stage innovators need significant funding to develop the product and scale it. To attract investors, these innovators need to demonstrate the economic potential of their contracts as well as their ability to increase access to justice. For the latter, they can monitor outcomes that user-friendly contracts have provided to users so far to demonstrate impact to investors and donors alike.

Relational contracting is another approach to contracting that is even more effective in stimulating cooperation, trust and fair distribution of risks and benefits between the contracting parties, instead of the sticking to the exact terms and conditions for eventualities that is part of the existing culture of contracting [31]. As a next step, we expect user-friendly contracts to embrace principles of relational contracting to facilitate the relationship between contracting parties.

4. Authors

This policy brief was written by Manasi Nikam (Knowledge Management Officer),  Kanan Dhru (Justice Innovation Advisor) and Prof Dr Maurits Barendrecht (Research Director) at HiiL

[1] Stefania Passera, Helena Haapio, and Thomas D. Barton, Innovating Contract Practices: Merging Contract Design with Information Design, in Proceedings Of The 2013 Academic Forum On Integrating Law And Contract Management: Proactive, Preventive And Strategic Approaches (2013).

[2] Ibid

[3] Sommers, R. (2021). Contract Schemas. Annual Review of Law and Social Science, 17, 293-308.

[4]  See website of LegalZoom, VakilSearch, DIYLaw, Avodocs, LawPadi.

[5] HiiL (2021). Case study on LegalZoom in Delivery Justice Rigorously; Crunchbase company profiling and funding VakilSearch, Last accessed on January 15, 2022.

[6] Ibid.

[7] Haapio, H., Plewe, D. and deRooy, R. (2016). Next generation deal design: comics and visual platforms for contracting. In Networks. Proceedings of the 19th International Legal Informatics Symposium IRIS (pp. 373-380).

[8] See the different types of contracts developed by Creative Contracts on their website; Waller, R. (2020). Visual Contracts for Shell; Booth, Stephen. (2018). Pictorial employment contracts – a legitimate craze or just plain crazy? Mondaque (online platform).

[9] Assy, R. (2011). Can the law speak directly to its subjects? The limitation of plain language. Journal of Law and Society, 38(3), 376-404.

[10] Read about Creative Contracts’ experience of attracting funds here. HiiL’s Justice Accelerator has funded startups in South Africa such as Creative Contracts. Read more about it here.

[11] Burton, S. (2018). The case of plain language contracts. Harvard Business Review; Read about World Commerce and Contracting work on contract design and simplification here.

[12] Haapio, H., Barton, T., & Corrales Compagnucci, M. (Accepted/In press). Legal Design for the Common Good:Proactive Legal Care by Design. In M. Corrales Compagnucci, H. Haapio, M. Hagan, & M. Doherty (Eds.), Legal Design: Integrating Business, Design, & Legal Thinking with Technology Cheltenham: Edward Edgar Publishing.

[13] Mitchell, J. A. (2018). Whiteboard and Black-Letter: Visual Communication in Commercial Contracts. U. Pa. J. Bus. L., 20, 815.

[14] Contract Design Pattern Library by World Commerce and Contracting. As access on January 12, 2022.

[15] HiiL (2021). Case study on LegalZoom

[16] Interview with Sally Guyer and Stephania Passera, dated November 12, 2021.

[17] Waller, R. (2020). Visual Contracts for Shell; Burton, S. (2018). The case of plain language contracts. Harvard Business Review.

[18] Booth, Stephen. (2018). Pictorial employment contracts – a legitimate craze or just plain crazy? Mondaque (online platform).

[19] Creative Contracts – who we are and what we do.Youtube.

[20] Mitchell, J. A. (2018). Whiteboard and Black-Letter: Visual Communication in Commercial Contracts. U. Pa. J. Bus. L., 20, 815.

[21] Working group session on user-friendly contracts, October 21, 2021

[22] Working group session on user-friendly contracts, March 3, 2022

[23] World Commerce and Contracting (n.d). ‘How Shell have transformed their contracts’, Better Contract Design, Last accessed on 15 March 2022.

[24]  World Commerce and Contracting, (2020). Co-designing Indonesian government contracts for the digital age.

[25] See website of LegalZoom and LawPath.

[26] HiiL (2021). Case study on LegalZoom in Delivery Justice, Rigorously,

[27] Ibid.

[28] Giancaspro, MA. 2020. Picture-Perfect or Potentially Perilous? Assessing the Validity of ‘Comic Contracts’. The Comics Grid: Journal of Comics Scholarship, 10(1): 7, pp. 1–27.

[29] Bill No. 18/202, Courts (Civil and Criminal Justice) Reform Bill, 2021, Singapore.

[30] Assy, R. (2011). Can the law speak directly to its subjects? The limitation of plain language. Journal of Law and Society, 38(3), 376-404.

[31]  Relational Contracting, World Commerce and Contracting, last accessed on 17 March 2022.

One-stop Shop Dispute Resolution Policy Brief

HiiL POLICY BRIEF

One-stop Shop Dispute Resolution

March 22, 2022

One-stop shop dispute resolution systems humanise legal procedures by giving people more control over how their disputes will be resolved. They gradually escalate the dispute resolution process, starting from allowing the disputing parties to negotiate, to having a neutral third party intervention. In this journey, users of the system have a range of available options via which they can resolve the problem, namely: negotiation, mediation and decisions by a judge. Some systems also provide aftercare solutions to the disputing parties. The integration of technology into the dispute resolution processes makes the platforms not only user-centred but also accessible.  

Although the enthusiasm for one-stop dispute resolution systems is huge, and many courts now operate online dispute resolution modules, few examples of large scale implementation exist. In this policy brief, we list a number of critical success factors that we derived from conversations with leading experts in this field. We also used our experience in dispute system design projects and national programmes oriented towards implementing what is now called people-centred justice. Whilst this remains work in progress, these insights can help ministries of justice, court leaders and private initiatives that are considering implementing one-stop shop dispute resolution systems to focus their efforts. 

During the next few years, we expect the best systems to specialise in one dispute type. They are likely to grow fast if lawyers and judges have a clear role in the workflow and if public-private partnerships are fleshed out in detail. Monitoring outcomes and quantifying impact is also expected to improve, strengthening the case for one-stop shop dispute resolution systems, which have a huge potential for ensuring equal access to justice for all.

1. Seamless process of dispute resolution

In a difficult conflict, people look for pathways to resolution. The steps going forward may include some form of guided reflection, obtaining advice about rights and possible outcomes, reestablishing communication with the other party, and negotiation and seeking the help of third parties such as mediators. If the conflict is not being resolved amicably, the last resort may involve the courts. This can result in an agreement between the disputing parties or a solution imposed by a judge. one-stop shop dispute resolution systems aim to integrate these steps into one seamless flow (see the example of a simplified three step model below) [1].

Ideally, the process guarantees that disputing parties achieve outcomes which help them move forward with their lives. When elements of the resolution process are supported by modern communication technology, it is called online dispute resolution. One-stop shop dispute resolution (OSSDR) systems, using the potential of IT, are widely seen as a gamechanger. They are promoted by thought leader Richard Susskind under the title: Online Courts and the Future of Justice [2]. Researchers write about one-stop shop dispute resolution systems from a dispute design perspective [3] or show how to integrate current resolution services into a seamless justice journey for the person seeking access to justice [4]. Technology firms including Tyler and Matterhorn specialise in offering the supporting technologies. Government agencies and private initiatives currently offer one-stop shop dispute resolution systems. Some prominent examples include the Civil Resolution Tribunal in British Columbia, SAMA, Presolve360 and RDO in India, Immediation in Australia, Utatuzi Center in Kenya and Uitelkaar in the Netherlands. At HiiL we follow these trends closely (see our 2016 Trend Report ODR and The Courts: The Promise of 100% Access to Justice?) and map them on the One-Stop Shop Dispute Resolution page on our Justice Dashboard where the reader can find more information.

1.1 Unlocking the potential

Although the enthusiasm is huge, and many courts now operate online dispute resolution modules, few examples of large scale implementation exist. In this policy brief, we investigate what holds back this promising development. Experts from a number of jurisdictions shared their experiences and identified a number of critical success factors. Whilst this remains work in progress, these insights can help ministries of justice, court leaders and private initiatives that are considering implementing one stop shop dispute resolution systems to focus their efforts.

Our analysis below shows that there are quite a few barriers to scaling one stop shop dispute resolution systems. At times, they face issues with integration with the formal legal systems especially when connecting a guided settlement trajectory with adjudication. Funding challenges also remain, especially when such platforms are started as private initiatives. For public sector one stop shop dispute resolution systems, integration across the different government departments is an impediment in some jurisdictions. 

This policy brief takes into consideration the discussions that emerged during the roundtable discussions of the HiiL working group on one stop shop dispute resolution. Along with the discussions, we factor in experiences of setting up one stop shop dispute resolution systems and combine both to make policy recommendations that can facilitate their scaling. 

1.2 Types of conflicts addressed and benefits

One-stop shop dispute resolution systems tend to work on justice problems that are more urban in nature. They are specialised in nature, and may deal with family issues, employment problems, consumer complaints, neighbour conflicts, personal injury claims, tax issues or conflicts with local governments. They address justice issues via mediation,conciliation and adjudication, but may also include support services such as referrals to housing or financial services for separating couples. These services are provided both by public and private sector entities and have the potential to develop as public private partnerships over time. 

For most pressing justice problems, agencies exist that already take on information and mediation roles. Ombudsmen and specialised tribunals are functioning. These stakeholders offer distinct services such that the parties to the dispute have to switch to different dispute resolution bodies. one-stop shop dispute resolution systems offer a seamless integration of all different stages of dispute resolution.  

one-stop shop dispute resolution systems and procedures tend to create an integrated “treatment” geared towards an agreement rather than a judgement. Court decisions may be needed, but they are less about sanctioning past conduct and more about how solutions work for the future. It provides a platform for the disputants to identify issues, diagnose their problem and be informed about possible solutions.

Besides the obvious advantages for users, these procedures can also relieve overburdened court systems and legal aid budgets. The information collected during facilitation of standardised processes that are offered to many clients stimulates learning and further innovation.  

1.3 Methodology

To answer the question “How might we increase access to justice for people by scaling and improving one-stop shop dispute resolution systems?”, we formed a working group of external experts. To guide the discussions with working group members, we identified the following design questions:

The working group engaged with these design questions and from this dialogue emerged the critical success factors that can help in scaling one-stop shop dispute resolution systems.

To select members for the group, we identified six experts that represented diverse demographics and expertise (innovators, policymaker, investor, legal professional, civil society) from within and outside HiiL’s network. They are: 

*Shannon Salter stepped down from her role in February 2022 following her appointment as the Deputy Attorney General of British Columbia. 

We organised four roundtable discussions between June to February 2022 to facilitate the conversations on the design questions among the experts. 

This policy brief summarises the findings of the roundtable discussions and lessons learnt from experiences of working group members and other innovators in setting up one-stop shop dispute resolution systems including: 

2. Critical success factors

In the sections below, we identified six critical success factors based on discussions with working group members and examples of and to scale one-stop shop dispute resolution systems. We also include main takeaways from experiences of the working group members and other innovators of setting up one-stop shop dispute resolution systems.

2.1 User-centred design of the specialised, one-stop process

The civil justice system emerged from interactions between lawyers, courts and attempts to codify procedures [5]. Gradually, this has led to litigation systems with complex rules and procedures, which can only be operated by those with specialised knowledge and access to case law. Moreover, courts radiate a certain level of formality, and a particular kind of dress-code and language. This influences the user experience of a court procedure as a trajectory to a fair solution [6].

Assistance by a lawyer is not always a solution and may be unaffordable. Several studies indicate that self-represented litigants form a significant proportion of the people who use the court system. For example, in Canada, 40% of the litigants in provincial family hearings are self-represented litigants [7]. In some states in the USA, more than 80% of the litigants are self-represented [8]. Here, the responsibility of manoeuvring the justice system has been put on everyday people, instead of adapting justice systems to needs of users [9].

Experts of one-stop shop dispute resolution system emphasise the importance of adopting a user-centred design when developing the system. Drawing on the approach taken by the BC Civil Resolution Tribunal when designing the system, we share the following insights on on how to implement user-centred design:

2.2 Solving the ‘Submission Problem’: Getting the other party to the table

A dispute resolution process can only be effective if both parties participate in the process. They need to be willing to interact, negotiate, agree to use a particular facilitator, and/or submit to the decision of a neutral third party. If the party for whom solving the problem is most urgent starts a procedure, he or she needs to know that there is a high probability that the other party will participate as well. William Landes and Richard Poser have called this the ‘Submission Problem’ [11].

Solving the submission problem — making sure both parties agree to use the same process to address their dispute — remains a critical challenge for the one-stop shop dispute resolution systems. This is true for other dispute resolution procedures such as mediation and arbitration where the disputing parties have the option of participating i.e it is voluntary. Factors that prevent a disputing party from agreeing with the dispute methods can be lack of trust in decisions of third parties, communication gaps and hostility or disagreements between the disputing parties, tactics to undermine the other disputing party and many more [12].

In order to resolve the Submission Problem, the working group members shared the following insights:

2.3 Monitoring outcomes

Monitoring the outcomes that dispute resolution platforms provide to users helps in assessing the effectiveness of the services as well as in identifying any gaps.  Monitoring outcomes is also instrumental in attracting investors who are looking for measurable returns on their investment and social impact. If the dispute resolution procedure is government-led, outcome monitoring enables governments who undertake performance-based budgeting to assess procedure, identify the ones that are effective in resolving disputes [15] and therefore should continue to receive funds.

Examples of key outcomes that are safeguarded by separation agreements and family court interventions [16]

Currently, there are no industry standards to monitor outcomes. To aid the monitoring of outcomes provided by one-stop shop dispute resolution systems, following are some insights that we developed along with the working group members:

2.4 Form effective public-private partnerships

In the current justice system, stimulating the peaceful resolution of disputes is mostly a partnership between public courts and private lawyers. Additional roles are available for experts informing the courts or assisting the lawyers in building their case. One- stop shop dispute resolution systems require new partnerships, in which there is also a place for providers of legal design, standardised information, help desk services, IT systems supporting resolution, facilitators of the resolution process and specialised interventions for particular disputes. Establishing effective public-private partnerships is crucial for a successful one-stop shop dispute resolution procedure.  

The government agency or court that is aiming to set up a one-stop shop dispute resolution process can develop its own platform. But the public sector may be reinventing the wheel, if platforms performing certain dispute resolution tasks have already been developed and can be integrated with court procedures. 

In that regard, the working group members came up with the following options for creating synergies between public and private sector players: 

2.5 Government stimulating initiatives: opening the regulatory doors

For one-stop shop dispute resolution systems to scale, an enabling regulatory and financial environment is a prerequisite. Courts, legal aid boards and other regulatory bodies need to carefully consider how to bring about structural changes in the way disputes are resolved. They may be tempted to invest in digitising current court procedures, instead of redesigning them. Online platforms may be developed on a project basis, without a long term strategy towards implementation [19]. It may be unclear which government agency is responsible for effective dispute resolution and adjudication. In the US, for instance, the state courts have a key role and judges will need to accept the fact that they are the legal sector’s regulator and the ones who can take initiatives [20].

To develop an enabling regulatory environment, we came up with the following insights along with the working group members:

2.6 Sustainable revenue model

One-stop dispute resolution systems need a sustainable revenue stream. The revenues have to cover the operational costs and the investments needed to design and implement the system. Investments can be substantial. Operators need to build and upgrade technology that can support the dispute resolution process. This may include the use of AI-driven chat-bots or mechanisms like blind-bidding. But most of the work in dispute resolution will still consist of efficient human interventions that have to be supported by protocols and standard operating procedures. The budget will also have to include marketing and advertising costs to expand the customer base. 

The working group members came up with following insights on creating a strong financial model:

3. Outlook

One-stop dispute resolution systems humanise legal procedures by giving people control over how their disputes will be resolved. They gradually escalate the dispute resolution process, starting from allowing the disputing parties to negotiate, to having a neutral third party intervention. In this journey, users of the platform have a range of available options via which they can resolve the problem, namely: negotiation, mediation and decision by a judge. The platforms also provide aftercare solutions to the disputing parties. The integration of technology into the dispute resolution processes makes the platforms not only user-centred but also accessible.  

One of the most pressing challenges in scaling one-stop shop dispute resolution systems is the submission problem. The most viable way of resolving this problem is by ensuring that governments make it mandatory for particular disputes. To protect the interests of users, governments need to form a committee that oversees the quality of the services provided by the platform. Governments also need to explore different forms of public-private partnerships to create synergies between the two. They need to outline the role that lawyers and judges can play in the new procedures. 

We expect the best platforms to start off by specialising in one dispute type, such as family (separation) or small claims disputes. By monitoring outcomes that the platform is able to provide users one this one dispute and thus demonstrating its effectiveness, the platform can make a case to expand its jurisdiction to other justice problems. 

The potential for one-stop shop dispute resolution platforms to increase access to justice for everyday people and businesses is considerable. To realise this potential, policymakers and legal professionals need to lead the way.

4. Authors

This policy brief was written by Kanan Dhru (Justice Innovation Advisor), Manasi Nikam (Knowledge Management Officer) and Prof Dr Maurits Barendrecht (Research Director) at HiiL

[1] Online Dispute Resolution Advisory Group, Online Dispute Resolution For Low Value Civil Claims, 2017, p.17.

[2] Richard Susskind, (2019). Online Courts and the Future of Justice.

[3] Amsler, L.B., Martinez, J.K., and Smith, S.E., (2020). Dispute System Design: Preventing, Managing and Resolving Conflict. Palo Alto: Stanford University Press.

[4]  Christopher Hodges, (2019). Delivering Dispute Resolution: A Holistic Review of Models in England and Wales.

[5]  Salter, S., & Thompson, D. (2017). Public-centred civil justice redesign: A case study of the British Columbia Civil Resolution Tribunal. McGill Journal of Dispute Resolution, 3, 2016-2017; Embly, L., Himonas, C., and Butler, S. (2020). Usability and court dispute resolution platforms. National Centre for State Courts.

[6] Salter, S., & Thompson, D. (2017). Public-centred civil justice redesign: A case study of the British Columbia Civil Resolution Tribunal. McGill Journal of Dispute Resolution, 3, 2016-2017.

[7] Ibid.

[8]  Steinberg, J. K. (2014). Demand side reform in the poor people’s court. Conn. L. Rev., 47, 741.

[9] Embly, L., Himonas, C., and Butler, S. (2020). Usability and court dispute resolution platforms. National Centre for State Courts.

[10] Salter, S., & Thompson, D. (2017). Public-centred civil justice redesign: A case study of the British Columbia Civil Resolution Tribunal. McGill Journal of Dispute Resolution, 3, 2016-2017.

[11] W. M. Landes and R. A. Posner, ‘Adjudication as a private good’, Journal of Legal Studies (1979), p. 235.

[12] Barendrecht, M. (2017). Rechtwijzer: Why online supported dispute resolution is hard to implement, ILAG Conference, HiiL.

[13] Barendrecht, J. M. (2012). Courts, competition and innovation. The Romanian Judges‘ Forum Review, 7(4), 44- 48.

[14] Niti Ayog, (2021). Designing the future of dispute resolution, the ODR policy plan for India.

[15] HiiL, (2020). Charging for Justice: SDG 16 Trend Report.

[16] Ibid.

[17] Ibid.

[18] Kistemaker, L. (2021). Rechtwijzer and Uitelkaar. nl. Dutch Experiences with ODR for Divorce. Family Court Review, 59(2), 232-243.

[19] Kistemaker, L. (2021). Rechtwijzer and Uitelkaar. nl. Dutch Experiences with ODR for Divorce. Family Court Review, 59(2), 232-243.

[20] Henderson, B (2022). State Supreme Courts and the challenge of people law (287).

[21] Agami, (n.d). Online Dispute Resolution: Shifting from dispute to resolution.

[22] Ibid.

Case: Tribal-State Joint Jurisdiction Wellness Courts

CASE

Tribal-State Joint Jurisdiction Wellness Courts

Photo by Wellnesscourts
Community Justice Services – Policy Brief / Case: Tribal-State Joint Jurisdiction Wellness Courts
The above reproduced Joint Powers Agreement between the Leech Lake Tribal Court and the Cass County District Court is reproduced from Cass County Leech Lake Band of Ojibwe Wellness Court: From Common Goals to Common Ground Presentation (last accessed on 7 February 2022).

Key fact and figures

Year of establishment
2006
Scope of service
Wellness court that serves as diversion for driving while intoxicated cases
Geographical scope
Cass County, Minnesota, United States of America
Legal entity
Tribal Court and State Court
Type of justice problems addressed
Public Safety
Regulatory embeddedness
Memorandum of Understanding between the courts. (For the first year, it was based on a “handshake” between the courts.) Both courts are exercising jurisdiction together.
Costs of services for citizens (average and range)
For every taxpayer dollar invested in the program, there is a $1.13 return after 5 years.” [1]
Average processing time
About 2 years

Background and History [2]

In 2006, the Leech Lake Band of Ojibwe Tribal Court and the Cass County District Court of the state of Minnesota, with the Cass County Probation Department and Minnesota Department of Corrections, entered into an agreement to create the multi-jurisdictional Cass County and Leech Lake Band of Ojibwe Wellness Court. [3] The first of its kind in the United States, the specialized wellness court’s jurisdiction is jointly shared by both the Tribe and the State and developed in response to the number of repeat-Driving While Intoxicated (DWI) offenders who were also members of the Leech Lake Band of Ojibwe Tribe.

Notably, these cases – which are criminal in nature – were previously only handled by the state court because tribes in Minnesota are generally without criminal jurisdiction. [4] But through this post-conviction, post-sentencing DWI court – available to both tribal members and non-members within the jurisdiction of Cass County– tribal and state court judges jointly preside over proceedings that focus on improving the wellness of the individual coming before them rather than meting out punishment.  This voluntary program is open to individuals who are 18 years of age or older, have committed multiple DWI offenses, and have been determined to be chemically dependent.  In addition, the program screens participants to ensure that they are physically and mentally willing and able to participate in the program and meet its conditions, such as willing to: undergo treatment, seek employment and/or pursue their education, and accept court sanctions for failure to follow through with the court’s expectations. [5]

Individuals who participate in the program embark on a journey over two years that encapsulates a people-centered approach to justice: 

The mission of the Wellness Court is to reduce the number of repeat substance dependent and DWI offenders by using a coordinated team approach. [7] This involves the Tribal Court Judge, the County District Judge, the prosecutor, the defense attorney, law enforcement personnel, social services workers, probation and treatment specialists, who work together to break the cycle of substance abuse, addiction, and crime among selected non-violent offenders. [8]

Critically, court sessions are held concurrently in the Tribal and District courtrooms and connected by interactive videoconferencing. This gives clients the option of appearing in whichever courtroom is more convenient for them. Indeed, this close collaboration is evidenced by the fact the Tribe’s flag appears in the District courtroom – a direct result of this program.

The joint jurisdiction has infused the Tribe’s culture into the judicial process, which in turn has meant that tribal members who participate in the program can reconnect with and learn about their culture and traditions. Tribal member participants who were previously disconnected from their Anishinaabe traditions are reconnecting with their culture to great success.  Spiritual healers have conducted naming ceremonies, sweat lodges, and talking circles all to further the healing of the participants.  The partnership between the two courts and two sovereigns – the Tribe and the State – has also been credited with helping to heal the two separate communities.

Thanks to the success of the original court, the Leech Lake Band of Ojibwe Tribe has stood up additional joint-jurisdiction courts and programs:

Outcomes

The Tribal Law and Policy Institute has reported positive outcomes of both the Cass County & Leech Lake Band of Ojibwe Wellness Court and the Itasca County & Leech Lake Band of Ojibwe Wellness Court such as: families being reunited, driver’s licenses being reinstated, participants becoming employed or continuing their education, and abusive relationships ending. [9]  In addition, participants have tens of thousands of documented days of sobriety among them and have been found to be significantly less likely to reoffend than non-participants.  While the average rate of recidivism in the state of Minnesota stands at 60% or more, the rate of recidivism for participants of the Cass County & Leech Lake Band of Ojibwe Wellness Court and the Itasca County & Leech Lake Band of Ojibwe Wellness Court is 6.6% and 16%, respectively. [10]

In a 2014 study of the Cass County & Leech Lake Band of Ojibwe Wellness Court, researchers conducted an analysis and found that, over time, the program has the potential to result in significant cost savings and a return on its investment. [11] It found:

"The program costs $19,710 per participant. The benefit due to significantly reduced recidivism for program participants over the 2 years…came to $8,946. If these cost savings are projected to 3 more years (to 5 years), they could amount to $22,365 per participant, resulting in a cost-benefit ratio of 1:1.13. That is, for every taxpayer dollar invested in the program, there is a $1.13 return after 5 years. [12]."

Lessons learnt

In 2009, the Center for Court Innovation interviewed Judge Korey Wahwassuck, who co-launched the court when she was a tribal judge.[13]  In that interview, she described where the idea of the wellness court originated:

"In late 2005, Judge John Smith from the Cass County District Court and Reno Wells, who is the director of probation for Cass County, approached the chairman of Leech Lake Tribal Council to get a DWI court started. At the time Cass County was one of the most deadly counties for drunk-driving fatalities in the state. People were just coming back through that revolving door. A lot of the people who kept coming back were our tribal members. Cass County wasn’t having any success addressing their underlying problems. There was a general frustration among tribal members, not only because people were coming back through the system, but because there was a feeling that the state courts weren’t helping. The county was looking at starting a drug court, so Judge Smith approached the Band and said, “We’re going to do this and we can’t be successful unless we have your help. Will you partner with us?” This was one of those “right time, right place” sort of things, because I happened to be in the Tribal Council offices that day. It was before I took the bench; I was still a tribal attorney. As soon as the judge and the probation director left, the question was, “So what do they want to do to us now?” There was huge mistrust of the state system. It all gets down to that lack of understanding. I told the chairman that I thought it was a good idea because the drug court model works and it’s a great way for the Leech Lake Band of Ojibwe to start having a say in what happens to tribal members’ cases. Minnesota is a Public Law 280 state, and the Band has not yet enacted any criminal codes of its own, so all DWI cases are handled in the state court. Before we started our partnership, the Band had nothing to do with these cases. Basically the Band sat around on the sidelines and looked at bad results and continued to dislike the state system."

Judge Wahwassuck went on to explain that when both courts decided to move forward together it was originally done with a “handshake” and goodwill.[14]  While the Tribal Council passed a resolution in support of forming the joint court, they did not enter into a formal agreement for the first year. [15]  And importantly, the joint powers agreement (reproduced at the front of the case study) that was signed in 2007 relied on the simple premise that both the Tribe and the County would exercise their jurisdictions jointly, on the cases that allowed them to, and towards a common set of goals. [16]

Judge Wahwassuck also explained how the model grew to a second wellness court with neighboring Itasca County in 2007.  The Itasca County Wellness Court invited the Tribe to join a planning team from their activities and from there, their collaboration was born.[17]  Like the Wellness Court with Cass County, the Wellness Court with Itasca County operates with both the tribal and state judges jointly take taking the bench – each exercising their own jurisdiction – to work with both tribal and non-tribal members who pass through their program. [18]

She shared that the joint-jurisdictional wellness court has inspired other tribal-state collaborations within the state of Minnesota, while acknowledging at the same time that some tribes remain warry of sharing jurisdiction with state courts.[19]  But she explained that the these models can offer an important intermediate step for tribes still building their courts’ systems so that one day they can handle these case on their own. [20]

The success of the court has brought national recognition and interest.  Both the Cass County & Leech Lake Band of Ojibwe and Itasca County & Leech Lake Band of Ojibwe wellness courts  have won several awards, including the Harvard Honoring Nations Award, the National Association of Drug Court Professionals Cultural Proficiency Courage Award, and the National Criminal Justice Association Outstanding Tribal Criminal Justice Award. [21]

But more importantly, the courts are valued by the community they serve with successes continuing to be logged. [22]  Individuals passing through these programs can experience better health outcomes, employment prospects, opportunities for stable housing, and – critically – family relationships. [23]

Authors

This case has been prepared by Maha Jweied, Pathfinders for Justice Advisor Fellow at NYU’s Center on International Cooperation

[1] Id.

[2] Some of the background and history of this case study is adapted from Maha Jweied, U.S. Department of Justice & U.S. Department of the Interior Report, Expert Working Group: Native American Traditional Justice Practices (September 2014).  The report also provides an overview of indigenous traditional practices in the United States.

[3] A fuller history of the development of this court can be found at Korey Wahwassuck, The New Face of Justice: Joint Tribal-State Jurisdiction, 47 Washburn L.J. 733 (2008). The Memorandum of Understanding that created the multi-jurisdictional Cass County and Leech Lake Bank of Ojibwe Wellness Court can be found at http://ccllwellnesscourt.files.wordpress.com/2010/10/memorandum-of-understanding.pdf

[4] Aaron Arnold, Interview: Korey Wahwassuck, Associate Judge, Leech Lake Band of Ojibwe Tribal Court, Cass Lake, Minnesota, 2 Journal of Court Innovation 405 (2009).

[5] .S. Department of Justice, National Institute for Justice, Program Profile: Cass County/Leech Lake Band of Ojibwe Wellness Court (Walker, MN) (2016), citing Zil, Charlene E., Mark S. Waller, Adrian J. Johnson, Paige M. Harrison, and Shannon M. Carey. 2014. Cass County/Leech Lake Band of Ojibwe Wellness Court Walker, MN: Process, Outcome, and Evaluation Report. Portland, Ore.: NPC Research.

[6] Id.

[7] Maha Jweied, U.S. Department of Justice & U.S. Department of the Interior Report, Expert Working Group: Native American Traditional Justice Practices (September 2014); see also https://wellnesscourts.org/files/Joint%20Jurisdiction%20-%20Apr_%202019.pdf

[8] See Cass County and Leech Lake Bank of Ojibwe Wellness Court, General Information, http://ccllwellnesscourt.wordpress.com/general-info/. A flowchart of how the process works can be found by visiting: http://ccllwellnesscourt.files.wordpress.com/2010/10/general-overview-flowchart.pdf.

[9] Lauren van Schilfgaarde, Tribal Law and Policy Institute, Joint Jurisdiction Wellness Courts Presentation (2019).

[10] Id.

[11] U.S. Department of Justice, National Institute for Justice, Program Profile: Cass County/Leech Lake Band of Ojibwe Wellness Court (Walker, MN) (2016), citing Zil, Charlene E., Mark S. Waller, Adrian J. Johnson, Paige M. Harrison, and Shannon M. Carey. 2014. Cass County/Leech Lake Band of Ojibwe Wellness Court Walker, MN: Process, Outcome, and Evaluation Report. Portland, Ore.: NPC Research. (Fact Sheet available here.)

[12] U.S. Department of Justice, National Institute for Justice, Program Profile: Cass County/Leech Lake Band of Ojibwe Wellness Court (Walker, MN) (2016).

[13] Aaron Arnold, Interview: Korey Wahwassuck, Associate Judge, Leech Lake Band of Ojibwe Tribal Court, Cass Lake, Minnesota, 2 Journal of Court Innovation 405 (2009).

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Center for Court Innovation Tribal Justice Exchange, Tribal Access to Justice Innovation, Leech Lake Band of Ojibwe Joint Jurisdiction Healing to Wellness Courts, available at: http://www.tribaljustice.org/places/specialized-court-projects/leech-lake-band-of-ojibwe-joint-jurisdiction-healing-to-wellness-courts/.

[22] Id.

[23] Id.

Kistemaker, L. (2021). Rechtwijzer and Uitelkaar. nl. Dutch Experiences with ODR for Divorce. Family Court Review, 59(2), 232-243.

Case: Houses of Justice

CASE

Houses of Justice

Photo by Casa de Justicia

Key fact and figures

Year of establishment
1995
Scope of service/ Type of justice problems addressed
Family, neighbour, crime, money, public services
Geographical scope
Country-wide (Colombia) – partial coverage
Legal entity
Part of the government – private service providers also included
Regulatory embeddedness
Part of the government
Number of affiliated staff members
Varies per house, depending on services offered
Number of cases resolved
+20 million
Citizen satisfaction
High satisfaction with access, less satisfaction with actual solution of problems
Citizen impact reporting score
Costs of services for citizens (average and range)
none
Average processing time
From days to a few months, depending on case
Annual Budget
Varies per house, depending on services offered

Introduction

The United States Agency for International Development (USAID) supported several programmes in Latin America and the Caribbean region to promote rule of law and democracy in the last decade of the 20th century.  One such programme was the Casas de Justicia program that was implemented by the Colombian Government, with support from USAID, in 1995. Casa de Justicia is a multi-door, legal information and community dispute resolution centre with an objective of meeting justice needs of low-income communities. It was launched as a pilot project in two large low-income neighborhoods in Bogotá (Ciudad Bolívar) and Cali (Aguablanca).  Over the years, the program expanded into 158 venues in 132 municipalities throughout the country. The main objectives of the programme are:

Multiple reasons make this program interesting for this issue brief: (i) Its long duration (25+ years). (ii) The program’s large scale in terms of both geographical reach and number of users—between 70 and 80% of the general public in Colombia knows of the program (La Rota, p. 174; DeJusticia, P. 78). (iii) Its focus on underserved populations—Casas de Justicia are located mostly in low-income neighbourhoods throughout the country. (iv) The program’s diverse settings of implementation (given large socio-economic and cultural differences across Colombian regions, as well as its multiple justice delivery goals and available services across cities, which enable comparison of service models within one general framework. And finally, (v) the availability of data about the program.

Program description

The World Bank’s comprehensive review of access to justice in Colombia describes the program as follows (Varela and Pearsons, p. 175): 

The casas de justicia are multiagency venues that provide information on rights, legal advice, and conflict resolution services. A variety of conciliation options are offered, together with administrative and some formal justice services (Decree 1447 of 2000). Since 1995, the Ministry of the Interior and Justice, with support from USAID, has constructed a system of casas de justicia comprising some 81 houses [158 as of Oct. 2020]. Originally designed for cities with populations in excess of 100,000, casas de justicia provide rapid solutions to everyday interpersonal disputes and neighborhood conflicts. Other issues they address include personal identity verification, domestic and sexual violence, and criminal cases of lesser gravity. Services for displaced populations are also provided, and matters of institutional abuse are considered.

The purpose of the casas de justicia is to facilitate “one-stop” access to legal help for poor people in marginalized or conflictive neighborhoods, and to promote peaceful-dispute resolution and social cohesion. Although they vary in design, casas de justicia incorporate local prosecutors, public defenders, municipal human rights officers, municipal neighborhood affairs units, comisarías de familia, legal aid specialists, social workers, and psychologists in a variety of conciliation services. Many justice houses also include other entities such as nongovernmental women’s organizations, youth mediation services, children’s playrooms, and university law clinics, and personnel such as forensic doctors, community police officers, and representatives for ethnic-communities.

Casas de justicia eliminate or reduce common access barriers and bring justice closer to the people, both physically and culturally. Procedures are free of charge, easy to arrange, and informal. Legal representation (having a lawyer present) is not required. Disputes are resolved in a timely manner. However, the sustainability of the houses is dependent on the continued participation of various institutions from the justice sector, some of which have insufficient staff to assign to small town projects; municipal political will to assume justice and conflict resolution commitments; and municipal budgets for justice services. Unfortunately, all of these factors are compounded when justice houses are located in small, war-torn areas.”

Financing strategy

Developing a sustainable financial model is essential to maintain consistency in the quality of services delivered. Casa de Justicia receives funds from several channels, including national and local governmental entities in Colombia. It has secured partnerships with the legal clinics of local universities and local chambers of commerce, to provide in-site conciliation and legal advice services to users. Municipalities that host the houses of justice are also required to contribute to it but evidence indicates that they do not always prioritise it. 

Similarly, various governmental agencies that implement the programme participate in it voluntarily. As a result, there is a lack of consistency in their contributions to the programme. This leads to situations in which, as one of the officers involved told Botero, “if there is coffee one day, sugar may be missing” (figuratively speaking).  Since the primary target of the Houses of Justice are marginalized communities, all services are provided free-of-charge—user contributions are not present. 

Despite securing stable public-private partnerships and receiving support from bilateral aid agencies, Casas de Justicia faces a shortfall in funds due to inconsistency in municipal and administrative support. 

Monitoring outcomes and implementing evidence-based solutions

Evidence indicates that Casas de Justicia has not used outcome monitoring to improve the interventions of the programme as a whole, nor introduced evidence-based interventions. Organisations such as DeJusticia, USAID, Ministerio de Justicia and Colprensa have conducted assessments of the programme and there is some anecdotal evidence and general surveys on user satisfaction. However, multiple studies (Casas de Justicia de Medellin; DeJusticia; USAID; Programa Nacional de Casas de Justicia y Convivencia Ciudadana) indicate that the programme’s information system is deficient and not generally used. Each house captures data on cases coming in, but very little information is available on whether disputes were actually solved.

The lack of proper outcome monitoring prevents evidence-based adjustment of services—since neither the houses nor the individual agencies regularly follow situations of conflict over time, they do not know whether, how and to what extent, a particular justice situation evolves into a downward spiral of conflict that ultimately leads to violence. Moreover, the weaknesses that the existing studies identified have not been addressed.

The programme has also remained essentially unchanged since its formalization under Decree 1477 of 2000. Instead of basing decisions on careful, evidence-based determination of needs and results in the community, decisions on resource allocation, prioritization of cases, and expansion and reduction of services (through the construction of new houses or through adding or removing agencies involved in existing ones), are made on the basis of purely bureaucratic considerations or on the good intentions of government officers (DeJusticia; Lina Buchely et al).

Impact

In terms of dispute resolution rate, a few studies suggest that about 50% of disputes are resolved at the Casas de Justicia. Comparing the performance of the programme to that of the alternative – the formal court system – anecdotal evidence and general surveys on user satisfaction suggest that Casas de Justicia is generally regarded as better. The program’s informal approach (without the need for a lawyer) makes it generally faster than the court system, and in those Houses where there are courts (e.g., small claims courts at Ciudad Bolivar), some evidence suggests that proceedings are handled more efficiently and speedily than in regular courts.  Some studies have found the program’s significant influence on shaping social representations of justice among target communities, with meaningful impacts on dispute resolution practices (Navarro Carrascal and Diafeiria). 

Anecdotal evidence collected by Botero in several houses across the country, suggest that while some users left the house with a sense of having received an answer to their needs, others felt that the authorities “did more to confuse them than to actually help them”. Even so, it is difficult to ascertain the programme’s impact in a holistic way, given the absence of a proper outcome monitoring system and weaknesses in the programme’s  existing data collection and analysis system. 

Furthermore, the uneven participation among diverse agencies across houses around the country and unequal commitment from local authorities, makes it extremely difficult to assess whether existing data on justice delivery at the houses of justice are nothing more than “people listened to” (or case files moved from one desk to the other without real impact on people’s lives), as Bucheli, Solano and Recalde suggest, or whether these figures effectively represent over 20 million justice needs actually met, as the Ministry of Justice claims.  

Evidence on the program’s effectiveness in rural areas remains disputed. A significant percentage of violence and crime in Colombia takes place in rural settings. Not only the drug and guerrilla conflicts are overwhelmingly rural, but according to Colombian´s National Police (2019), many crimes are also more prevalent in rural areas, including burglary and kidnappings. It is unclear whether the gentle-hand approach to justice of the houses of justice model (which is largely centered around ADR options) is effective to address the most pressing justice needs of the rural population. 

The capacity and effectiveness of administrative agencies and procedures to resolve disputes in rural setting, where the State presence in Colombia has been traditionally weak (García Villegas), is also limited—dispute resolution services in large segments of the country have been effectively delivered for decades by guerrilla and paramilitary groups. Casas de Justicia does not seem a viable option to address the most pressing injustice that people suffer in rural settings.   

Finally, one highly popular component of the program’s outreach efforts is the mobile Houses of Justice, where the various participating institutions deliver justice off site, at various neighbourhoods or in rural areas. Several experts consulted by Botero consider this kind of program is extremely difficult to sustain under the current model and level of resources, and thus not effective. One expert called it “justicia golondrina” (swallow justice), after the bird that only comes from time to time, without leaving any meaningful footprint.  Moreover, some suggest that it may be counterproductive, as it creates unreasonable expectations of access among the public that turn into frustration for lack of follow up. 

Scaling

While assessments of the program diverge, the weight of the evidence indicates that the program has been generally effective in addressing the needs of the most vulnerable urban population. Overall, the most prevalent use of the Casas de Justicia program according to DeJusticia, were in family disputes, criminal matters, document petitions, conflicts related to leases and public utilities, employment disputes among others (DeJusticia, p. 54).  

According to the programme’s national director at the Ministry of Justice (interview, October 8, 2020), with 158 venues in 132 municipalities throughout the country, the program has reached about 70% of its target population. Given that about three quarters of Colombians live in these cities, in terms of reach, the program has been successful. According to the Colombian Ministry of Justice, central authority in charge of the general direction of the Casas de Justicia program, 15 to 20 million cases have been handled by this multi-door, community dispute resolution centers, from its foundation in 1995(3). (DeJusticia, p. 77-78; Ministerio de Justicia, 2013). 

According to the Ministry of Justice, close to 50% of all petitions for conciliation or redress at the houses of justice during the year 2013, were filed by people belonging to the poorest sextile of the Colombian population (“estrato 1”), and another 45% by people belonging to the second and third lowest sextile (Dejusticia, p. 55-56), and this trend remains generally unchanged until today. This means that the program has overwhelmingly served the low- and middle-income urban population, as it was originally intended. 

A critical element of this analysis is the justice delivery gap in the Casas de Justicia program: While the numbers vary across sources, it appears that the program is widely known and highly popular among the general public, but not really widely used. (Awareness 70-80% – Overall use 2%. Use among the poor: 10%.).  Moreover, according to DeJusticia and La Rota, Lalinde and Upimny (2013, p. 107), by 2013 only 1.8% of the cases handled by any sort of administrative authorities were actually resolved by the Casas de Justicia program. This can be attributed to the lack of consistency of service delivery (independence of political winds at the national, regional and municipal level) and issues of financial sustainability. As a result, critics of the programme call it a highly institutionalized placebo which seeks to defuse neighbour grievances among marginalized communities rather than to actually resolve them (Bucheli, Solano and Recalde).

Integration with the formal justice system

Experts and researchers in the justice sector are increasingly recognising the importance of integrating the formal and informal justice system. In the case of Casa de Justicia, participation of the formal judicial branch remains relatively marginal throughout the country today. Many of the Houses include crime reporting desks of the national prosecutor’s office (Fiscalia General de la Nacion). While some of them (e.g., Ciudad Bolivar) include two small claims courts as part of the services offered, in most of Casas de Justicia the most common type of state agencies present are administrative agencies, mostly at the municipal level (e.g., the office of the municipal ombudsman; the Police Inspector or the community development office). Agencies at the national level such as work and labour inspectors from the Ministry of labor, a delegate of the National Registry office or the Instituto Colombiano de Bienestar Familiar (minors defence agency), are also commonly present. (Ministry of Justice, 2012, p. 12)(6). 

Enabling environment

Casa de Justicia, being a government-led programme, received significant support from regulatory and financial systems at the time of its formation. They have become the default avenue for handling conflicts at low-income neighbourhoods throughout the country’s urban centres. However, government-led status has not safeguarded the program from shortfalls in funding and lack of inter-agency coordination. Interviews with senior officials and experts suggest that Casas de Justicia needs more support from regulatory systems in terms of planning and inter-agency coordination to improve service delivery and more funds and logistical support from the administration to expand into rural areas. 

Critical success factors

Lessons learnt

Lessons learnt from the experience of setting up Uitelkaar are:

Methodology

This paper is based on:  Botero, Juan Carlos, “CASE STUDY – Casas de Justicia in Colombia. December 2020, which is available at: https://dashboard.hiil.org/trend-report-2021-delivering-justice/case-study-casas-de-justicia-colombia/ 

Botero’s study was based on extensive literature review, semi-structured interviews with government officers and users, and field visits to several houses of justice.

Authors

This case has been developed by Juan Botero with suggestions from the HiiL team.

Case: Bataka Court Model

CASE

Bataka Court Model

Photo by Bataka Court

Community Justice Services – Policy Brief / Case: Bataka Court Model

Key fact and figures

Year of establishment
2014
Scope of service
Civil justice problems and petty crime
Geographical scope
2 districts in Uganda
Legal entity
Privately run foundation
Type of justice problems addressed:
Civil justice problems including disputes related to land, family, neighbours and petty crime
Regulatory embeddedness
Private
Costs of services for citizens (average and range)
Free, no cost

Introduction

Bataka Courts literally translated as ‘Ordinary Citizens Courts’ is a community justice service based in Kagadi district of Uganda. It aims to increase access to justice for the poor by enabling local leaders to deliver justice services. It was conceptualised in the year 2012 with the support from DFID and ODI when these institutions were looking for innovative models that can provide access to justice for the poor in low income countries. It was implemented by World Voices Uganda with support of Overseas Development Institute and Development Research and Training, a non-for-profit organisation based in Uganda in 2014. 

Bataka Courts addresses civil justice problems such as disputes related to land, family, neighbours and petty crime [1].

The justice gap in Uganda is sizable. The Justice Needs and Satisfaction Survey 2019 conducted by HiiL indicated that about 84% of the people in Uganda experienced a legal problem in the past four years [2]. Additionally, access to lawyers for Ugandans is also limited. Since 85% of lawyers are concentrated in the capital city ‘Kampala’, the majority of the Ugandans don’t have access to lawyers [3]. Given the inaccessibility of lawyers and high rate of justice problems, a large percentage of the population relies on informal justice services to resolve disputes [4].

Justice leaders in Uganda are also promoting informal justice services to fill the justice gap. Hon Justice Duncan Gaswaga, the Deputy Head of the Commercial Division of the High Court of Uganda recognised informal justice systems such as community courts as alternative dispute resolution mechanisms that are faster, cheaper and accessible to Ugandans [5].

In such a scenario, Bataka Courts have a significant role to play in bridging the justice gap. “[They] are based within communities, matters are decided quickly and there are no legal or court costs. Their decisions emphasise reconciliation and social harmony” [6].

In this report, we outline various aspects of the service delivery model of Bataka Courts, how it has streamlined monitoring outcomes, its impact on the lives of Ugandans and its marketing and financial model. We also outline the challenges that Bataka Courts faces in scaling and factors that make it a successful model of community justice services. Since not much literature is available on it, the information for this report has been drawn from an interview and discussion with Gard Benda, Director at World Voices Uganda who played a leading role in the implementation of Bataka Courts.

Programme Description

World Voices Uganda (2020) and Benda (n.d) provide a comprehensive description of the Bataka Courts model [7]. The following paragraphs provide a summary of it.

“Each court has a panel of seven elders who are well respected in the community. The elders should not have a criminal record and should be willing to volunteer as a witness. Community members can directly report a problem to any of the elders who then convene a meeting with other community members. The meeting is conducted in the home of the elder who calls the meeting or any other central meeting place to which the disputing parties have agreed to.

The proceedings of the court are conducted in the local language to make sure everyone understands them. Since Kagadi is a multi-ethnic community, an interpreter is appointed to ensure that those who speak another language are also heard. Once the disputing parties present their case, community members are allowed to raise questions, seek clarifications, add information that is relevant to the dispute and offer their points of view. The case is heard for a period of three weeks where an inquisitorial approach is taken to establish the facts of the case. Once all aspects of the dispute have been discussed, the elders intervene. Elders are required to arrive at a consensus before making the final decision.

The elders provide remedies such as requiring the offender to issue a public apology, participating in community service, compensation for victims of wrongs, restitution, simple refund and recovery of debt and property and compensation. The decisions of the elders are binding for as long as the disputing parties accept it. If the disputing parties are dissatisfied with the outcome, then can report it within a span of 14 days. If the parties would like to escalate the dispute to the formal justice system, the Bataka Courts issue a referral after which the case proceedings start afresh”.

Linking formal and informal justice system

Bataka Courts have integrated with the formal justice system and law enforcement agencies successfully to a large extent. The Local Council Courts — a government-driven community justice service in Uganda, Magistrates who preside over district courts, the police and a few other administrative bodies refer cases to the Bataka Courts [8]. “Between 2012 and 2016, over 60 cases were referred to the BC by the Grade1 Magistrates Court in Kagadi, 56 cases were referred from Police, 42 cases from Local Councils, and 16 cases from district institutions” [9].

Findings from the discussion with Gard Benda (2021) also indicate that Bataka Courts have collaborated with the formal justice system to improve upon its service delivery model in various ways.

Scaling the organisation

Bataka Courts was piloted in the sub-counties of Kyaterekera and Ruteete in Kagadi district. World Voices Uganda later scaled it to ten other sub-counties of Kagadi district and into neighbouring districts of  Kyegegwa [12]. To make citizens aware of the services delivered by Bataka Courts and to attract users, the World Voices Uganda uses radio programmes and the operation manuals that are distributed among everyday people. But the main factor that prevents it from scaling to all districts in Uganda is scarcity of funding [13].

Impact of the organisation

Recent data on the number of cases resolved by Bataka Courts is not available. A report by World Voices Uganda (2020) indicates that between June 2019 and September 2019, in a span of three months, Bataka Courts resolved 155 cases. It indicates that the functionaries of the formal justice system, such as the police, magistrates of the district court are satisfied with the performance of Bataka Courts. A Magistrate from Kibaale says, 

“[Bataka Courts are] doing great work. The community refers to the BC as the first response group, before they even report to the police [14].

A police official remarked “BCs seem more appealing to the community. They are direct. They are fast. All win and the people are happy [15]..”

Although this is anecdotal evidence, these quotes from legal professionals indicate that the community is satisfied with the speed and efficacy of the services provided by Bataka Courts. As discussed earlier, given that magistrates, police and Local Council Courts refer cases to Bataka Courts, it can also be inferred that Bataka Courts have reduced the backlog of cases experienced by these law enforcement agencies. 

Financial strategy of the organisation

Bataka Courts continues to be financially supported by World Voices Uganda [16]. It has received funding from HiiL’s Justice Accelerator in 2019 [17]. Being a community justice service that addresses justice needs of the poor and marginalised, it  does not charge user fees to disputing parties and panel members who preside over the court do so voluntarily. However, the panel members who host the public gatherings and hearings where cases are resolved, have to offer refreshments to all those gathered, as a result of which they incur expenses. All in all, Bataka Courts is currently funded through volunteer labour and donor funding and is yet to explore other sources of funding such as from the government, that can help in achieving financial sustainability.

Lessons learnt

Lessons that can be taken from the experience of setting up Bataka Courts are:

Critical Success Factors

Factors that played a critical role in the success of Bataka Courts are : 

Authors

This case has been developed by the HiiL team based on discussions with Gard Benda on August 12, 2021.

[1] World Voices Uganda, (2020). Capacity assessment of informal justice actors in delivering justice: Compliance with constitutional required and international human rights standards.

[2] HiiL (2019). Justice Needs and Satisfaction Survey, Uganda.

[3] The Justice Law and Order Sector, 2012. Draft Uganda Legal Aid Policy.

[4] HiiL (2019). Justice Needs and Satisfaction Survey, Uganda.

[5] Democratic Governance Facility. (2020). Informal justice mechanisms commended from promoting justice (Blog).

[6] Ssebunya, A. K. (2014). Why local realities matter for Citizens’ Voice and Accountability. Lessons from Mwananchi Uganda pilot projects. Field Actions Science Reports, 11, 1-7.

[7] World Voices Uganda, (2020).; Benda, N.G. (n.d). Bataka Court Model: Operational Manual. World Voices Uganda.

[8] Discussion with Gard Benda and working group members, 2021.

[9] World Voices Uganda, 2020, pg. 31.

[10] World Voices Uganda, (2020).

[11]  Discussion with Gard Benda and working group members, 2021.

[12] World Voices Uganda, (2020).

[13]  World Voices Uganda, (2020).

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] HiiL, (2022). Advancing people-centred justice in Uganda: where are we seven years later? (Blog).