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Category: Trend Report 2021 Delivering Justice

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7. Strategy 4: improving the enabling environment

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7. Strategy 4:
improving the enabling environment

Trend Report 2021 – Delivering Justice / 7. Strategy 4: improving the enabling environment

The demand for effective solutions for pressing justice problems is both evident and substantial. New methods to resolve problems are available, as are supporting technologies. Yet in most countries the gamechangers needed to resolve all pressing conflicts effectively have not yet emerged. If a task force wants this to happen, its members need to think about how the financial and regulatory environment can enable it to do so. 

Evidence-based treatments and service delivery models operate in the regulatory environment for legal services. In many countries, only lawyers who graduated from law schools are allowed to give legal advice. Regulations also restrict the business models lawyers are allowed to use. Dispute resolution services by courts are regulated by rules of procedure. Moreover, newly developed services need to find a place in budgets and procurement systems. 

Introducing game-changing justice services is not for the politically naive. A task force needs to pave the way. It should work on reforming regulatory, relational and financial systems so that they can better accommodate scalable models for justice services and effective interventions. The guiding principle of this strategy is to ensure a level playing field that allows game-changing justice services models, treatments and interventions to compete with existing offers. A task force needs to work on this from the start, in parallel with the first three strategies. Strategic timing and early wins are crucial. As we will see in the next sections, this can be difficult, but task force members have many levers of change available for their strategic use.

Timing of dialogue on regulation of justice services

This is what can happen if the enabling environment is not addressed early on: 

The task force has been established and its members have jointly assumed ownership of improving the enabling environment. Domestic violence problems have been prioritised and goals and targets have been agreed upon. One or more gamechangers have been selected. Scaling-up work on the gamechangers has started, ensuring that effective treatments will be more widely available. The task force is now convinced that game-changing services can be organised, become sustainable and reach most people with justice problems, either in communities, online or through specialised one-stop court procedures. The task force reports to the ministry. It is thanked for its great work and…five years later a member of parliament asks the minister to set up a committee to investigate the urgent and pressing problem of avoidable domestic violence. 

Working to create the enabling environment should be undertaken in parallel with executing other strategies and should start early on. If it starts too early, however, it will have insufficient momentum. Justice innovation has a chicken and egg problem. Civil servants or politicians responsible for regulation will always ask what changes in the laws are needed for a particular innovation. Rightly so, because they have seen many major law reform projects fail. They need to see a new justice service working at scale before they will consider revising the regulatory framework. 

Unfortunately, many innovations will become stuck in the early prototype stage. Innovative services offering evidence-based interventions can only grow into  gamechangers if they can land in a positive enabling environment where they are welcomed and rewarded with access to a market made up of people with pressing justice problems. Without this reward in sight, few justice insiders and few entrepreneurs from outside the sector will start the complicated ventures that can lead to game-changing justice services. 

Our experience is that a powerful example of a game-changing service — or at least a prototype and a strong initial validation by a task force — is needed to create momentum for regulatory innovation. As we will see below, the US regulatory environment for legal services needed the example of LegalZoom before it could begin opening up. 

The need to improve the enabling environment can be illustrated by the initial results of the strategy for evidence-based working. The task force can demonstrate that the codified way of dealing with conflicts and crime through adversarial procedures is much less effective than what practitioners currently do and what research recommends. 

If the task force acts too late, it will lose momentum and deplete its budget. As a result, teams working on innovative services may give up and the frustrations with outdated ways of working will increase. The public will continue to have the impression that justice sector institutions perpetuate injustices. 

Ideally, the enabling environment needs to be created within two or three years. This is the normal cycle of government and the time horizon for a minister of justice. For investors, this is an acceptable time frame for an initial round of funding. Within this timeframe, the task force must operate strategically, choosing from a number of options, as outlined below.

Transforming the political environment: possible coalitions

In the HiiL model of justice transformation, creating the enabling environment consists of separate stakeholder dialogues with a focus on integrating gamechangers into laws and budgets. Members of the task force will need to align their work schedule with the rhythms of governance in ministries and parliaments. This is the world of national development plans, coalition agreements, ministerial budgeting and court financing. It is also the world of experts deciding on revisions of codes of procedure and bar associations that have a crucial role in legal services regulation.

The task force will need to reflect on political sensitivities. A political economy analysis may be helpful. In many countries, this analysis will show a political arena that is polarised between conservatives and liberal progressives. It is likely that the political economic analysis will reveal that justice policies are shaped within a framework in which conservative parties emphasise toughness on crime, national identity and respect for authority, whereas progressive parties focus on social safety nets, inclusion and participation. Family justice can be heavily politicised by ideas on family values or by gender stereotypes. In employment justice, progress may be difficult without the consent of trade unions. Legal aid is more likely to be promoted by left-wing parties than by parties representing the interests of businesses.

People-centred justice can best be framed as a technical and neutral approach aimed at better treatments and more effective justice services. That said, coalitions still need to be formed between groups that hold power. Breakthroughs in the form of justice policies that have gained broad support have occurred. Recently, many governments have succeeded in reforming criminal justice. In the United States, a coalition was forged between Republicans wanting to save prison costs and reduce recidivism and Democrats wanting more humane, effective treatments and less incarceration. 

Several coalitions are possible. In the European Union, economic considerations have created momentum to deregulate legal services. In England and Wales, where there is a strong legal services industry, independent regulators have been created as a first step. In the United States, coalitions of politicians, leading justices, vocal minorities in the legal profession, a new generation of law professors and innovative legal service providers have formed in several states. The drive to innovate and make justice more accessible is becoming stronger than the tendency to defend the adversarial legal system. In African countries, ministers (or attorney generals) and leading judges are inclined to open up the legal system to community justice services, which are more consistent with local values related to social harmony and justice. These coalitions are supported by NGOs and donors who work from a development and human rights perspective. The case for justice reform is also made by national planners who need to deliver economic growth. 

A task force can perhaps not actively create such coalitions, but it can certainly contribute to them. We have seen in Canada, Nigeria and the United States that coalitions sometimes form at the provincial or state level, and then extend to other states. Smaller states and city states move forward more easily than do big countries.

Budgeting for people-centred justice: increasing the share of the pie

A more technical element of the enabling environment is the budgeting process. This is where an investment plan for a game-changing justice services is likely to land. Investments need to be budgeted. If the sustainable revenue streams for the gamechanger include permanent subsidies from the government, then subsidies need to be secured in a budget (HiiL 2020).

The public justice sector consists of several agencies. The most visible are the courts, prisons, prosecution and police. Countries may also have a forensic laboratory, a legal aid board, probation services, immigration authorities and agencies providing registries. 

These agencies either compete for a slice of the ministry of justice budget, or have to negotiate a share of the general state, county government or municipality budget. Each agency can try to generate additional income from citizen contributions. The government budget allocated to the justice sector is occasionally increased, but more often it will remain proportional to the government budget or a percentage of GDP. 

How can the task force find money for better treatments and service delivery models  in this environment? We offer several options to be further explored by task force members. There is no simple answer yet regarding what works.  

The task force can present the investment plan to the authorities responsible for the budget, showing the fixed costs that need to be funded upfront and a clear trajectory towards breaking even. With limited investment needed and outcomes defined and ready to be monitored, the plan may compare favourably to plans to increase the capacity of police or courts. Task force members can try to convince participants in the budgeting process that a separate budget line for innovation is appropriate, and to reserve 2% or 3% of the total budget for this. This is an objective indicator for investing in research and development that is generally accepted but usually not yet met in government justice budgets. Task force members could even make the argument that systems for conflict resolution need to catch up with a multi-year investment in the range of – say – 10% of budgets that has to be provided from the national budget.

If a new game-changing service requires subsidies from the annual budget, a new agency can be established. This happened in Sierra Leone, where the $1 million annual budget for the legal aid board budget represents 10% of the total budget for the judiciary and courts (Manuel 2020). In some Latin American countries, community justice services (judicial facilitators) are subsidised as a percentage of court budgets. In these examples, the negotiations took many years and potentially game-changing justice services were brought to scale gradually, which helped to make the case for opening up the regulatory environment but also created little urgency to adjust the budgets rapidly. 

Task forces must consider how this new budget line will affect the budget for courts, police, prisons, prosecution and other agencies. In times of budgetary constraints, stopping doing “non-essential” new things has proven to be an easy way out for core justice institutions.  

The task force may therefore prefer to promote an objective budgeting method, where outcomes and their costs are compared. Performance-based budgeting methods are slowly being introduced in the justice sector. Ministries of finance, donors or philanthropists may require budget holders to accept such methods. 

A task force can anticipate this shift towards new ways of budgeting by providing an alternative budget for justice services that is based on outcomes for people. As explained in our Charging for Justice 2020 report, core funding for current justice sector institutions could be combined with outcome-based funding for preventing and resolving justice problems. The justice problems experienced by people can be the baseline for this, with agencies invited to show how their activities and outputs contribute to prevention and resolutions. This should include how courts contribute to the “shadow of the law”. One of the outcomes courts achieve – but are not paid for in most systems – is that their existence and availability as an adjudicator convinces people to agree to fair and speedy resolutions. Just by being there and available ready to intervene, courts settle many disputes.

Another approach for a task force is to team up with existing agencies. Courts or police can reallocate their budgets to game-changing procedures and prevention programmes. They may face internal pressures when doing this – legal aid lawyers may resist investments in legal information websites, for example, or courts of appeal may resist shifting budgets to one-stop shop procedures. 

The most likely pathway to funding is to demonstrate that game-changing justice services can increase the overall budget and contribute to better performance by existing agencies. Better outcomes — through one-stop tribunals and problem-solving courts, for example — can increase revenues for the judiciary. In the United States, drug courts benefited significantly from the fact that federal funding was increased and contingent on participation in rigorous evaluations that they might not otherwise have been able to afford. This research enabled them to demonstrate their cost-effectiveness and secure sustainable funding streams early on. Furthermore, legal aid boards can increase their revenues and provide better outcomes when they set up community justice services and online platforms. Police can invest in prevention programmes that reduce crime and therefore the costs of policing.   

A task force can set an example to encourage thinking about strategies to increase revenues. We have learned that revenues are not a concept that court leaders automatically connect to. We recommend exploring this topic in depth by investigating different sources of funding and building a common understanding of how sustainable funding rewards practitioners. Rewards come in different forms: for example, being part of a highly effective team, having access to the methods and tools to be effective, more time to handle complex cases and opportunities for professional growth. 

Court leaders may also be made aware of other revenue streams. One example is charging fees with a healthy profit margin to businesses with complex court cases. In many countries, court fees are set by legislation and schedules are not regularly adjusted. In China, this is done differently (Ng and He 2017). Chinese courts have to optimise their funding. This funding process is discussed openly and in relation to the incentives it may generate. Courts may become too dependent on contributions from the local government and this may be a reason for the central government to step in with funding. A few courts have asked major local companies for contributions, knowing that they can benefit from law and order. Some courts have also been successful in generating more commercial cases that bring in higher court fees, but these can come at the expense of serving the justice needs of the broader population. Researchers Kwai Hang Ng and Xin He found that some courts offer reductions of prison sentences in return for higher fines. A transparent dialogue about funding options is needed. It can reveal the trade-offs that exist in any financial system for a public service. Justice services cannot be assumed to be different from other parts of public life.  

Some countries have found interesting avenues for cross-subsidisation. The best-funded court systems are probably those of Germany and Austria (CEPEJ 2020). Their dispute resolution services are paid from registration fees which cross-subsidise services for the broader population. In their remuneration schedules for lawyers, large claims subsidise small claims. In Sweden, most people have insurance for legal expenses, which tends to be included in the indemnity insurance for their house.

In low-income countries, international donors like the European Union, the World Bank and aid agencies may be willing to make funding for the justice sector conditional. For example, they can make funding for courts or the police contingent on the implementation of service delivery models that are effective and on promoting evidence-based practice. A task force may want to reconcile the donor need for tangible outcomes with the need of justice sector leaders for additional revenue streams.

Levelling the playing field: independent certification of justice services

The enabling environment for justice services consists of regulation of legal services, rules of procedure and rules for legal education. Community justice programmes, one-stop shop procedures and problem-solving courts can only function if rules of procedure allow them to. There are many ways in which the regulatory environment influences what can be offered to the public and who can be involved (see box with the most common examples)

Examples of regulatory barriers

When designing and delivering effective justice or legal services, suppliers may face a variety of regulatory barriers. The following list summarises a number of common ones.

  • Evidence-based treatments for justice problems are very likely to have elements of diagnosis and advice. In the United States, Germany and many other countries, following their model of regulation, legal advice may only be delivered by licensed lawyers. This is a substantial barrier for the development of services that offer tailor-made advice through guided pathways.
  • Lawyers are trained to follow a treatment model for legal diagnosis and litigation advice which may not conform with “what works”. Legal education tends to be heavily regulated, with a focus on learning laws and applying these laws, rather than assisting clients to effectively negotiate agreements and resolve disputes.
  • Common building blocks of effective treatments include meeting (opening a communication channel between the parties), respecting (re-establishing interpersonal respect) and understanding (investigating and acknowledging the interests of both parties). These building blocks have no place in (adversarial) procedures that courts of law have to follow according to rules of procedure.
  • Ombuds, complaints and other alternative adjudication mechanisms tend to follow an adversarial model where one party starts a procedure with a complaint or claim, and the other party defends or issues a counterclaim. This model, laid down in rules of procedure that tend to have their basis in legislation, may be incompatible with more effective processes that facilitate a fair, balanced agreement between the parties.
  • The rules of procedure that courts and participants in litigation must follow are oriented towards fact-finding, establishing whether parties violated rules and sanctioning, with a strong focus on punitive measures. This is at odds with the needs many parties have, to acknowledge their contribution to what went wrong, to recognise the harm done, to continue relationships, to find a way forward and to re-establish harmony within the community.
  • From a “what works” perspective, collaborative processes such as mediation or facilitation may need to be integrated with decision making by neutral third parties. Most rules of procedures for courts and other adjudicators only mention mediation as a possibility if both parties opt in, whereas adversarial processes are prescribed unless both parties opt out.
  • Laws may provide a barrier to implementing sustainable delivery models for effective treatments. Effective delivery models are likely to use a mix of channels for delivery: online, paper-based information, telephone, volunteer assistance, in-person help by trained practitioners following protocols and specialised help by university graduates for complicated issues. Current regulations tend to be biased towards delivery by trained lawyers and to ignore other channels.
  • Sustainable delivery models require reliable revenue streams, with an adequate mix of payments by the “buyers of services,” the other party to a conflict, the community that benefits from restored harmony, the taxpayer and private donors. Detailed legislation may be in place for the way lawyers and other providers of legal services are compensated. Court fees are often set by outdated legislation.
  • Effective organisations tend to have a balanced mix of disciplines in their top level management and are likely to be funded by outside investors. In most countries, laws require the top level management in legal services firms or courts to consist mainly of legal professionals. Investors are faced with many restrictions as well.
  • In theory, courts of law would be perfectly placed to organise and run a dispute system with all the components that make it work. This would require making, buying and integrating many additional elements. Procurement rules can be a huge barrier to the cooperative arrangements that need to be developed in order to make this work.

To implement a single game-changing service, many of the rules may need to be changed. In 2013, HiiL helped Dutch courts design a one-stop procedure for neighbour conflicts. The design conflicted with existing rules on formulating claims, serving documents, and defending against claims and court judgments. The mediation services built into the new procedure raised issues regarding mediation by courts being allowed, representation by lawyers and confidentiality of mediation. Informal communication with judges, and the storing of data on the cloud, have led to additional discussions about interpretation of the rules. In 2021, the Dutch were still using formal and costly civil legal actions that can take up to two years to solve a pressing nuisance problem and the new procedure is still not implemented.

Innovators providing game-changing services are thus likely to be entangled in a web of incompatible rules. Incumbents, who deliver documents and handle cases in the traditional way, want innovators to follow the same rules. Unsurprisingly, this is their understanding of a level playing field. In the justice sector, incumbents derive extra power from their proximity to the system that enforces the rules. Bar associations and courts apply these rules in the way they are used to, working from precedent. They are not equipped to consider the effectiveness of new solutions for users compared to the current solutions. They mostly do this without having the intention to make life difficult for justice start-ups or to block game-changing services; they just want to uphold the rule of law in their own backyard.

The result is that many innovators face an uphill struggle. Either they shrink their services to fit the regulation, or they face long legal battles and risk facing sanctions that destroy their business. Bar associations frequently bring suits against providers of innovative services. Services that have scaled across jurisdictions may be burdened with legal challenges from multiple local bar associations at once. 

Innovators and incumbents both need a level playing field. The current regulatory regime for legal services and court procedures stifles innovation. This is perhaps the single biggest barrier to access to justice: the solutions and services that work often cannot be implemented.  

LegalZoom: regulatory regimes stifling innovation

The American Bar Association prohibits non-lawyers from practising law. Because of this, LegalZoom has been sued by individual lawyers and accused by state bar associations on the charge of unauthorised practice of law (UPL). 

Here, the bone of contention is not the provision of blank legal documents or forms per se, which is permissible by law. Rather, what ruffles feathers is the provision of customised and personalised legal documents to customers. LegalZoom’s software asks the customer to answer a series of questions specific to the legal document requested. The software assesses the individual’s needs, marital status and location. Based on this information, it creates a customised legal document. This service offered by LegalZoom has been considered tantamount to UPL by various state bar associations and lawyers. 

The UPL statute is meant to protect consumers from fraudulent individuals who may pose as lawyers and damage the interests of the people. However, critics reason that if well regulated, non-lawyers can provide effective legal services at a fraction of the cost of a lawyer. 

A turning point came when the State Bar Association of North Carolina issued cease and desist letters to LegalZoom on the charge of UPL. LegalZoom fought back by filing a case against the State Bar Association stating it was promoting monopolistic practices in the field of law. The two sides reached a settlement in 2015 in which the State Bar agreed to support online providers of legal services provided the latter enacted regulations to protect the interests of consumers. This is when LegalZoom found support from other national public institutions. The Antitrust Division of the Department of Justice and Federal Trade Commission  supported this agreement and acknowledged that LegalZoom filled a lacuna in the provision of affordable legal services.

Despite the commercial success of LegalZoom, the company faced litigation on charges of UPL for years. It took State Bar Associations and administrative bodies a long time to realise that such companies play a pivotal role in increasing access to justice and that rules and regulations need to be modified to allow such companies to flourish. These regulations should be modified not only to accommodate different types of legal service providers in the market, but also because new legal service providers need to be monitored in order to protect consumer interests. 

LegalZoom possessed the financial resources and resilience needed to withstand pressure from a tough regulatory environment. Not all legal innovators may be able to do the same. How can the task force protect fledgling innovations and ensure they can flourish?

A regulatory sandbox is an emerging tool for this and one that a task force can promote. A regulatory sandbox allows the regulation of an innovation  to be designed in sync with the innovation itself. A regulatory sandbox is similar to the regulatory environment for medical experiments. Clinical trials allow for comparing innovative treatments with current ones under conditions that control the risks for trial participants and optimise the potential benefits of innovations. The sandbox can allow for experimentation and deliver the conditions for a licence to operate the new treatment or service delivery model.

Utah regulatory sandbox: the future is here

In August 2020, the Supreme Court of the State of Utah in the United States unanimously authorised a two-year “legal regulatory sandbox” pilot programme intended to bridge the access to justice gap (Utah Supreme Court n.d.). The programme’s mandate is to make it possible for non-lawyers and other agencies to experiment with innovative justice models and approaches to the system of law and justice. The effort is billed as a solution to the failure of the justice system to provide legal representation to poor, working-class and middle-class Americans. The changes followed the task force report entitled: “Narrowing the Access-to-Justice Gap by Reimagining Regulation”.

In a statement, Utah Supreme Court Judge Deno Himonas said,

We cannot volunteer ourselves across the access to justice gap. We have spent billions of dollars trying this approach. It hasn’t worked. And hammering away at the problem with the same tools is Einstein’s very definition of insanity. What is needed is a market-based approach that simultaneously respects and protects consumer needs. That is the power and beauty of the Supreme Court’s rule changes and the legal regulatory sandbox (DeMeola 2020).

New businesses and initiatives participating in the sandbox will be overseen by a new regulator: the Office of Legal Services Innovation. The regulator will work directly under the supervision of Utah’s Supreme Court (Utah Supreme Court n.d.). 

The rest of the world looks forward with interest to the experiments carried out in this historic sandbox as it will provide important lessons for other justice systems, innovators and legal regulators.

In most countries that are reassessing the regulation of legal services, experts advise moving in the direction of regulation based on the treatments that are applied and the risks involved. They advise removing most restrictions on how law firms and other providers of justice services can be owned and governed, whom they can employ and who can take part in management. Details of service delivery models can be left to the suppliers. 

A task force should consider a more substantial system change, which would really create a level playing field. Detailed regulation of legal services and procedural rules – which stifles the development of effective treatments by courts, police, prosecution and lawyers – can be replaced with a certification system. 

Under a certification system, which is common in health care services, any effective new treatment or service can be proposed and evaluated. A court or agency can then design and develop a treatment, collect evidence about its effectiveness, and ask for approval by an independent evaluator. The same procedure can be followed by a law firm, startup or public-private partnership.

Procurement system: improving make-or-buy decisions

In most countries, your doctor is likely to be a private entrepreneur. Water is cleaned and brought to your tap by specialised companies. Electricity and public transport are other examples of public goods usually sold to citizens by the private sector. In the justice sector, work is outsourced to law firms, bailiffs, translators and foundations delivering probation services. Arbitrators and mediators are resolving disputes for parties who overcome the submission problem and jointly opt out of courts. Prison services and forensic therapeutic interventions are organised through different public-private partnerships.    

A task force better avoids a discussion about privatisation, because this creates value-laden discussions about market versus government in a sector that is obviously delivering public goods. A preferred approach is to help government agencies consider their make or buy decisions. New interventions, treatments and service delivery models are developed by private and public initiatives. In order to benefit from private sector innovation, government agencies should be able to procure innovations from this sector. If the private sector offers services superior to those the nearest government agency can offer, it should be empowered to do so. In some countries, courts have a poor track record of digitising and modernising procedures. Until recently, they have tended to build custom case management systems – in spite of the fact that several providers offer configurable case management systems that can be accessed for a reasonable fee. As we have seen, many innovators have designed smart procedures that could be implemented by courts, shifting the innovation risk to the private sector. 

As the examples above illustrate, task forces and ministries of justice would achieve better results if they allowed selected organisations to offer effective procedures and interventions. Currently, mandatory one-stop procedures are only provided by courts organised by governments or new government organisations (ombuds services, tribunals and administrative agencies). In future, the provision of these procedures could be outsourced to spinoffs from courts, led by an entrepreneurial judge, NGOs with a track record in justice services, IT companies selling case management systems with online dispute resolution capabilities, or start-ups run by lawyers-turned-justice entrepreneurs. The relevant regulatory body could allow private services certified by an independent government agency to be offered. Alternatively, it could contract one of the organisations mentioned above as the manager of a service with trusted judges paid by the state as adjudicators. A range of public-private partnership options exist.

Prevention programmes and community justice services have to make similar procurement decisions. User-friendly contracts, claiming platforms, and information and advice websites are more likely to be delivered by private companies. Private and public organisations can both supply similar services with similar outcomes for people. A claiming platform set up by a foundation or a startup is in a way a substitute for a user-friendly procedure hosted by a government agency. Information and advice websites can be run by startups, NGOs or government legal aid boards. 

The task force may want to help the ministry of justice to design a procurement system that deals with these issues in an objective way. When a government procures a service, the playing field for competitors should be level. In order to get citizens the best deal, government agencies should be viewed as competitors. 

An effective procurement strategy includes the option to buy or co-develop new technologies in a way that is fair to innovators and governments. HiiL has worked with many innovators who feel their innovations have been copied by government agencies. Contemporary procurement rules are being redesigned to optimise innovation and can provide inspiration on such matters.

  • The European Commission has undertaken initiatives to increase the uptake of innovative goods and services in public procurement practices (European Commission n.d.). 
  • The right to challenge is a mechanism through which communities or citizens can challenge a government agency with a proposal to deliver a public good in a better way than is provided by the agency. See example from the United Kingdom (Government of UK n.d.).

Navigating vested interests: a pathway towards growth

The task force will need to invest much of its thinking in how to ensure a level playing field. One risk of this approach is that the task force is held up in lengthy discussions with the incumbent agencies currently delivering solutions. Interacting with different offices inside ministries or with bar associations can be complicated and time-consuming. 

One possible way forward is to apply a method that is at the core of people-centred justice reform: to focus on outcomes and start designing the arrangement that delivers the most sustainable solution. In this case, the ideal agreement would increase revenues for justice sector agencies, incentivise reforms of treatments and services and make it possible to stop ineffective activities (by allowing adequate transition periods or providing compensation).

In the box below, we provide a general outline of such an agreement based on HiiL’s  Charging for Justice report (2020). 

A pathway to growth

  • Setting an inspiring goal of 100% coverage of effective solutions for the most urgent and frequent justice problems.
  • Safeguarding core funding for the broad social goals of the justice system and introducing smart fees. This means increasing contributions by beneficiaries and government agencies for effective services, while decreasing general subsidies.
  • Allowing justice sector organisations to reinvest the extra revenues.
  • Opening up regulatory space for developing well-defined, scalable, financially sustainable services for specific target groups. Courts, other current providers of services, and innovative newcomers should be allowed to develop gamechangers.
  • Attracting private and public investment by ensuring that evidence-based, scalable and financially sustainable services can become the default for specific categories of disputes and crimes. These services should observe value-based regulation.
  • Focusing on local delivery of solutions for the most urgent and frequent justice problems. Supporting local delivery with world-class know-how.
  • Investment (by the World Bank, OECD countries or major foundations) in basic technologies for delivering fair solutions that can be used worldwide.
Read the "Charging for Justice" report
Read the "Charging for Justice" report

CEPEJ, (2020). European judicial systems: CEPEJ evaluation report. 

Cohen, M. (n.d.). LegalMosaic (blog). URL: https://www.legalmosaic.com/blog-2/blog-medium-2-2/. Accessed on August 3, 2020.

DeMeola, Z. (2020). Utah Supreme Court Makes History with Vote to Establish Regulatory Sandbox. IAALS (Blog). 

European Commission, (n.d.). Innovation procurement. URL: https://single-market-economy.ec.europa.eu/single-market/public-procurement/strategic-procurement/innovation-procurement_en. Accessed on August 3, 2022. 

Government of UK, (n.d.). Community right to challenge: Statutory guidance. URL: https://www.gov.uk/government/publications/community-right-to-challenge-statutory-guidance. Accessed on August 3, 2022. 

Harvey, F. (2015). Paris climate change agreement: the world’s greatest diplomatic success. The Guardian. 

Henderson, W. (n.d.)Legal Evolution (blog). URL: https://www.legalevolution.org/. Accessed on August 3, 2020. 

HiiL, (2020). Charging for justice: SDG 16.3 Trend Report 2020.  

Manuel, M. (2020). Speaking notes, OECD webinar, 22 October 2020. Overseas Development Institute.  

Ng, K., & He, X. (2017). Economic Embeddedness: The Political Economy of Court Finances. In Embedded Courts: Judicial Decision-Making in China (pp. 142-166). Cambridge: Cambridge University Press. 

Utah Supreme Court, (n.d.). What we do. URL: https://utahinnovationoffice.org/about/what-we-do/. Accessed on August 2, 2022

Table of Contents

Summary
1. Making the case for people-centred justice
2. Owning people-centred justice
3. Agenda-setting: pressing problems, goals and gamechangers
4. Strategy 1: data on problems, impact and outcomes
5. Strategy 2: promoting evidence-based practive
6. Strategy 2: scaling game-changing justice services
8. Strategy 5: strengthening the movement
Annex
Case Studies:
Problem-Solving Courts in the US
Casas De Justicia Colombia
Local Council Courts in Uganda
LegalZoom in the US
CrimeSync
The Justice Dialogue
Methodology
Authors
Posted on

6. Strategy 3: strengthening and  scaling justice services

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6. Strategy 3:
strengthening and
scaling justice services

Trend Report 2021 – Delivering Justice / 6. Strategy 3: strengthening and  scaling justice services

Having ensured that justice services can provide high-quality treatments, the task force should turn to effective delivery of such treatments. Together, the available services need to reach tens or hundreds of thousands  of people for each pressing justice problem every year. To achieve this, services need to be able to deliver each of the interventions needed in a seamless and scalable way. In order to achieve scalability, the way the service is organised should be financially sustainable. In simple economic terms, the service provider should ensure that the marginal cost of serving one more user with a justice problem is considerably lower than the extra revenue this user will generate. This margin can then be reinvested to improve the service, achieve further scale, manage risks and reward investors.

We now explore what is needed to turn a promising and game-changing service into an investable opportunity. A sound plan for a scalable justice service has a number of mutually reinforcing elements, which are described below.

Pilots, startups and new courts: the early initiatives with potential

Game-changing justice services are being developed. Community justice services exist in many countries. Mature startups deliver contracts online. Problem-solving courts are widespread. These promising service delivery models started small: in the first neighbourhood where Colombia’s houses of justice were piloted; in a single court in Brooklyn; or the first version of LegalZoom’s website.

Entrepreneurial judges, lawyers and IT professionals have turned ideas for new services into pilots and justice startups. These startups and pilots are an important part of the justice ecosystem. The number of innovation attempts in the justice sector is substantial. In 2011, Oxfam alone supported 800 rule of law programmes, most aimed at better justice services for vulnerable groups. Courts around the world often run multiple pilots in parallel.

Once the taskforce has decided which gamechangers are needed, it can cooperate an accelerator programme to select the most promising existing service providers. The table below identifies examples of early stage services that follow the path of promising game-changing service delivery models. They are taken from the HiiL Accelerator Programme that scouts, selects and supports justice startups.

EARLY STAGE GAMECHANGERS SCOUTED AND/OR SUPPORTED BY THE HIIL ACCELERATOR PROGRAMME

Gamechangers category
Examples
Community justice services
Bataka Court Model (Uganda) HiiL Accelerator cohort 2018-19 Houses of Justice/ Casas de Justicia (Colombia)
User-friendly contracts
Creative Contracts (South Africa) HiiL Accelerator cohort 2017-18
One-stop dispute resolution
Uitelkaar.nl (Netherlands) HiiL Accelerator cohort 2013-14
Problem-solving courts
Mental Health Courts/ Therapeutic Jurisprudence (US) HiiL Accelerator cohort 2013-14
Claiming platforms
Haqdarshak (India)  HiiL Accelerator cohort 2018-19
Prevention programmes (fraud, violence)
Yunga (Uganda) HiiL Accelerator cohort 2019-20 Ushahidi (Kenya) HiiL Accelerator cohort 2015-16 Appruve (Nigeria) HiiL Accelerator cohort 2019-20
Online legal information/advice
DIY Law (Nigeria) HiiL Accelerator cohort 2015-16

Alternatively, the task force can support initiatives to develop a new service. The Civil Resolution Tribunal (CRT) in British Columbia is an example of this. The CRT was set up as a result of an initiative by a group of justice leaders in the Canadian province of British Columbia. The first problem-solving court in the United States was also created as a new court instead of a pilot within an existing court. 

Governments often choose to set up new tribunals outside the existing court structure. Ombuds services, specialised tribunals and houses of justice did not emerge from existing courts. This follows a more general innovation practice. Mature, large organisations that want to break new ground have learned that the corporate structure – with all its regulations and social norms – is not ideal for innovative ventures. Typically, they base their startups outside the existing organisation. Eventually, when the new way of serving users has matured, it can be brought back into the corporate structure. This happened with the many separate tribunals in England and Wales (for employment, social security and child support, immigration and asylum, mental health) that later became part of an overarching organisation of courts and tribunals.

  • The HiiL Accelerator Programme works with justice startups (HiiL n.d.-x). These innovators are primarily in the private sector, but also include entrepreneurs working from within justice sector organisations. Justice innovation hubs have been set up in Johannesburg, Kampala, Kieve, Lagos and  Nairobi. 
  • Several ministries of justice run their own innovation programmes, including the ministries of Netherlands, Singapore and the United Arab Emirates (Singapore Ministry of Law 2020; Alfaham 2021; Ministry of Justice and Security Netherlands n.d.).
  • To learn more about the houses of justice in Colombia, see the case study Casas de Justicia in the annexure to this report. 
  • To learn more about LegalZoom, see the case study LegalZoom in the United States in the annexure to this report. 
  • To learn more about the growth of problem-solving courts, see the case study Problem-Solving Courts in the United States in the annexure to this report. 

Proving the concept: conducting a feasibility study and piloting

Let us consider a service that already exists, or has been piloted. In business language, it should have market validation. In language more fitting to government services, a feasibility study is needed. Unless the selected service is already on track towards effectiveness, scale and sustainability, it can be regarded as a pilot or an early-stage startup. A pilot and the experiences of a startup deliver a wealth of knowledge about justice needs, effective treatments, possible revenue models and barriers to bringing the service to scale.

The validation or feasibility study confirms to what extent the service is already effective, and what should be improved. This work is usually carried out in partnership with independent evaluators. It identifies a gamechanger’s main barriers to scale. A feasibility study consolidates the learnings from the existing service or pilot with knowledge from other sources. It details what improvements are needed and assesses how likely it is that these improvements can be made. The feasibility study identifies the main points of attention for the gamechanger and explains how they will be addressed.

Standardising delivery and individualisation

Small-scale justice services are often distinctive in how they are delivered. A mediator sets up a restorative justice programme with the local police. A judge develops ways of talking with the parties during a court hearing and achieves many settlements. Family lawyers in a city form a network with therapists so that couples who are in the course of separating can be helped more effectively. 

This can lead to early successes and increases in the resolution rate. But such initiatives depend on the skills and experience of a particular person or group.  An online platform referring people to lawyers is only as effective as the lawyer who ends up handling the case. If each lawyer listed on the platform has their own approach to solving conflicts, with varied outcomes and rates of success, what do users gain from this platform? 

Scaling implies standardisation and effective outcomes, which is closely linked to evidence-based practice and to financial sustainability. Better quality services are more likely to lead to a revenue model that is sustainable and scalable. Users, governments and communities are more likely to pay for a service that solves most land problems or most domestic violence issues. This, in turn, will provide a better business case for investments.

In an effective and investable service delivery model, outcomes are well-defined and monitored, making the quality of the service visible (Bal et al. 2019). 

Standardised, effective treatments need to be delivered through standardised channels. Generally, the user side can be a justice worker in a community or a website. Additional assistance can be organised through a telephone, help desk, or chat function. Research clearly shows that people today expect hybrid service delivery models, offering multiple ways to interact and exchange information (Creutzfeldt and Sechi 2021). The guidelines for treating the justice problem need to be translated into practical steps for employees operating each channel, including scripts for key interactions with users. Once tasks are defined and allocated, the time that they take can be estimated. This further standardisation can lead to new gains in efficiency. 

At the same time, the individual person seeking justice should feel heard and be served as an individual. Justice problems often have a high impact and cause distress. People need to feel they are listened to and that they are respected. This is a challenge for any court, police station or startup delivering justice services. 

Individualisation should be built into every delivery model for justice services. Disrespect is the most common feeling associated with injustice. For justice services, therefore, treating customers respectfully and not as a case or a number to be processed is crucial. Effective legal help offered online should be combined with options of, for exzmple, in-person or telephone assistance. 

Value proposition and delivery channels

In order to benefit from a service, users need to know that it exists. Individually, they are unlikely to encounter more than one land problem, one major crime issue or one separation in their lifetime, so most will not immediately know where to seek a solution. Searches on the web or consulting friends should lead to the game-changing service. Substantial investments in marketing are needed for this. Currently, people go to many different agencies and individual service providers, each of which is trying to compete for attention online or in communities. Widespread awareness can be achieved, however. Colombia’s houses of justice are known by 70% of the population, even though only 2% of the population (10% of the poor) use them. 

Awareness on its own is not sufficient. Game-changing services need to develop a clear value proposition. In HiiL’s work with justice innovators, this has proven to be an important element in bringing a service to scale. Gamechangers aim to offer a standardised service with a high resolution rate. Traditional justice services are not always clear about such outcomes, however. A lawyer, for example, typically tells a client that he or she may either win or lose the case depending on how a judge sees it. Research conducted by the Legal Services Board of England and Wales revealed how difficult people find the task of selecting legal services. This is due to the stress of the situation, their limited knowledge, and a lack of consistent and objective information. Generally, they prefer providers that offer clear and useful outcomes, and provide the needed specialised skills in an honest and professional way. They focus on good rapport, understanding and responsiveness as proxies for a favourable customer experience. 

Building on these insights, the value proposition for a one-stop procedure for land conflicts, for example, could include a stable agreement about rights of use and ownership, delivered by a specialist platform in a responsive manner. For clients of services providing user-friendly contracts, the value proposition can be a satisfying and effective employment relationship or a happy and prosperous family life, with clear indicators of the mechanism’s track record. A defendant struggling with substance use and repeated police involvement would like to know what a problem-solving process would deliver for him. How would his life change after participating in the process? 

The value proposition of justice services provided by courts needs the most work. Judges routinely tell parties to a conflict that a decision will not solve their problem. Prosecutors in the United States and Uganda, for example, talk about diversion, that is keeping cases out of court and sending them elsewhere. This suggests that the service a court provides is not effective and that a new value proposition is needed. Community justice services, by contrast, have a more convincing value proposition: a peaceful resolution that restores social harmony and is supported by the community.

To learn more about the houses of justice in Colombia, see the case study Casas de Justicia in annexure to this report.

Bringing in sustainable revenues: the financial model

A justice service cannot scale without a sustainable revenue model. Task forces are likely to underestimate the potential of justice services to generate sustainable revenues. In our 2020 Trend Report, Charging for Justice, we investigated in detail the possible sources of revenues for justice services. Generally, we found that the demand for fair solutions and the impact of justice problems is huge. Substantial revenues can be expected if the value proposition is clear and the service consistently delivers fair solutions or prevention. Here we provide some of the highlights from this report. 

People with justice problems are prepared to spend on solutions. Surveys that have investigated willingness to pay find that this is considerable, even in low-income countries. This can be explained by the significant impacts that justice problems have on people’s lives and by the large benefits of finding a solution. Although the high price of lawyers – that is, the cost of the service they provide – is generally seen as a barrier to justice, legal needs surveys paint a different picture. Only a small percentage of people with justice problems who do not use a lawyer mention price as the main barrier to resolution. 

Based on these data, our report hypothesised that the quality of justice services is the main obstacle when it comes to willingness to pay. From a user perspective, hiring a lawyer is unattractive. The outcomes are uncertain and one of the possible end points of the justice journey, a court judgement, may not deliver the result a user hopes for.

Game-changing justice services, which focus on the outcomes people need, can be more attractive for users and, in turn, increase their willingness to pay. Smart fee systems can be developed, with pay structures that make use of services more attractive. Smart fee systems optimise who pays for what and when they pay. For instance, user contributions are possible even when the target is a low-income group. In Uganda, the Local Council Courts charge fees from users in rural areas which helps to cover the costs of the tribunals. Providers of justice services can also consider taking contributions from the other (“defending”) party to the dispute, who may have deeper pockets, being a landlord or an employer. In many countries, court fees are also collected from defendants or rules exist that allocate legal costs to defendants. The community, too, is often prepared to contribute to the costs of justice delivery. A municipality may hope to de-escalate conflicts in order to prevent costs downstream. Volunteers may be willing to act as third parties. Civil servants may act as mediators. Government subsidies for courts or legal aid are of course common. An effective gamechanger can attract targeted subsidies for the most vulnerable users. 

The size of a smart fee should have some relationship to the costs of the service delivered. Pay-as-you-go systems have been developed in which accessing information is free, but support to achieve a settlement generates a fee. This fee can increase if a client needs mediation, adjudication or additional interventions that may be required in complicated situations. Government subsidies or cross-subsidisation can be used to avoid a situation where the people who need a solution most are unable to afford it. Germany implements cross-subsidisation through fee schedules that charge high fees to corporate plaintiffs with substantial financial claims.  

Task forces can also consider the timing of contributions. Court fee systems are often poorly designed, so providers of problem-solving courts or one stop tribunals should look into them. The user – who is likely to suffer financially from the justice problem –  often has to pay up front, many months or even many years before the court provides relief. This arrangement also misses the opportunity to incentivise courts to deliver judgments earlier on. Smart fee systems optimise all of this.  

Vital public services like health care would ideally be free at the point of service for a basic package. The same is achievable  for vital justice services, but this needs time. In order to achieve an ideal health care system, countries engaged in decades of innovation, resulting in improved quality of services leading to greater willingness to pay; increased revenues leading to greater investment in better services; the development of private and public insurance models; government coordination; and willingness to contribute to the health of fellow citizens. All of this helps to ensure 100% access. But trying to start with free justice services for all is unlikely to succeed and was not the trajectory taken by other public services.

Scaling the service: reaching the target population

The transition from reaching hundreds of people to covering a country’s entire population is best done on the basis of a scaling plan. Setting up or improving community justice services is often done geographically, area by area. One-stop shop procedures are most often implemented for a single problem type at a time. 

Contracting platforms typically develop standardised wills, family relationship contracts, employment contracts or rental contracts before they go live. This kind of minimum product package is needed before scale can be achieved. Integrating customer feedback to achieve the optimum product-market fit is also important.

LegalZoom: scaling and improving

LegalZoom is often characterised as a ‘disruptive innovation’ or an innovation that brought about a paradigmatic shift. Time and again, the company has introduced cutting-edge services that have had success in the commercial market and simultaneously made legal services more affordable. To date, the company has over 4 million customers. An important factor that has enabled LegalZoom to scale is the company’s problem-solving outlook. 

LegalZoom did not become complacent once its first venture – legal documents – became commercially successful. Rather, it sought to resolve other problems people faced, one of which was obtaining legal advice from qualified lawyers for a modest fee. To address this problem, the company offered a prepaid legal plan to customers. As per the plan, customers can schedule unlimited 30-minute consultations with lawyers on personal and business matters for a fee starting from 10 dollars a month. 

By diversifying its services, LegalZoom was able to tap into different sections of the market, expand its customer base and position itself as an attractive innovation to investors. 

As one interviewee in the case study said, 

 

Many times, innovators are [so] carried away by the strengths of their innovation that they forget to further innovate. After all, the innovator is trying to resolve problems. By limiting the innovation to a certain set of problems, the innovation limits its own growth. Instead, if the innovator adopts an attitude where he or she is looking to resolve new problems, it automatically broadens the scope of the innovation. By continuing to address problems, the innovation boosts its own effectiveness and ability to reach out to more people than before.

Read more in our case study
Read more in our case study

Rolling out a service is a specialism. High fidelity to the treatments that have been agreed to is crucial. The leadership and staff needed to ensure that the service is rolled out effectively are usually different from the leadership and staff needed at the initial innovation stages. Useful experiences can be obtained from other public services, such as financial inclusion and providing electricity to low-income areas in the world. These services have made important strides in recent years in achieving scale. These services often started as private sector initiatives backed by impact investors. Later, such services can be included in or validated by the relevant government agency. In these ways, justice services can reach many more users.

M-PESA and scaling justice services

The proliferation of mobile phones in developing countries is contributing to more equal treatment of vulnerable groups. Their use – in financial inclusion, increasing access to education, and many other Sustainable Development Goals – cannot be underestimated. 

M-PESA is a large-scale mobile phone-based payment service based in Kenya that works towards ensuring financial inclusion. The scaling history of M-PESA provides interesting lessons. Launched as a public-private partnership by Vodafone and Safaricom with the support of a grant from the UK government, the initiative began as a pilot programme. The overwhelming positive response M-PESA received from Kenyans encouraged the company to scale it across the country.

Initially, the service was launched as a phone-based micro-lending initiative. However, after realising that customers were using the product for a number of alternative purposes, the team decided to change the value proposition to allow people to make payments through the application.

Studies of M-PESA provide evidence of this public-private partnership’s success in increasing financial resilience and saving as well as in allocating resources more efficiently.  In 2016, a research paper by MIT estimated that the initiative had lifted 2% of Kenyans out of poverty. It also found that the impact of M-PESA on female-headed households was more than twice the average measured. 

Leaders in the justice sector may want to consider similar public-private partnerships. Hospitals, police stations, supermarkets and social media platforms are examples of services that already operate huge networks, mastering the associated logistics. Under what conditions could the delivery of justice outcomes happen with the help of  these channels or by licensing their expertise? 

Securing investments: an investment plan that entices funders

The task of securing investments for justice services warrants a separate report. Here, we mention a few key learnings from our work.

One insight is that the public and private justice sectors use different kinds of investment approaches and invest for different reasons. In the public justice sector, major investments are made in court buildings and IT infrastructure. These investments often seem only to cover the costs of maintaining services that are slipping. Investment plans for the public justice sector are often accompanied by talk about “dilapidated” court buildings and “paper files.” New court buildings and paperless offices are the deliverables.   

Our view on investment is closer to that of the private sector. Investments should aim to expand justice services and improve their quality, and should not be confused with maintenance. An investment plan details the resources needed for the game-changing service to scale. Investments come in different rounds to support the scaling process. As a service reaches more people, its revenues grow. The investments are needed to finance the scaling process until further scaling can be paid from the growing revenue stream. 

The justice sector can do a much better job in securing investments. The Overseas Development Institute, a development think tank, has investigated funding mechanisms for justice in several studies and found that investments in justice by international donors have stalled (Manuel, Manuel and Desai 2019). Private investments in people-centred justice are also minimal in comparison to investments in legal tech initiatives that primarily serve major law firms and businesses (HiiL 2020).  

A second observation is that game-changing justice services cannot scale on the basis of the usual grants of a few 100,000s euros from NGOs and international donors. The resources necessary to bring a service to scale will generally require investments in the range of millions and tens of millions of euros. This kind of money is needed to sustain a strong team, to validate a product, and for standardising the service and execution of the scaling plan. This includes awareness raising (marketing). 

A third insight is that compared to the social benefits of a game-changing justice service, the investments required are small. The gamechangers tend to have low fixed costs compared to other investments in national infrastructure, such as internet connections, electricity grids and networks of hospitals with extensive medical equipment. For example, fixed costs for community justice programmes consist of the money needed to develop treatment guidelines, standardised working methods, IT infrastructure, and a team that can ensure delivery of consistent and high-quality services by justice practitioners in communities. 

Delivering justice primarily involves sharing information and connecting people through sophisticated interactive processes. An infrastructure for data collection on outcomes is also crucial. This infrastructure requires considerable investment but once the necessary laws, processes and interaction formats are in place, justice services can be brought to city neighbourhoods and rural areas at much lower cost than those necessary to extend road and 5G networks.

The team leading the game-changing service should carefully consider what type of investors will best match their mission. Private investors may be guided by a short-term horizon and financial returns. Innovators in the HiiL Accelerator that come from the start-up scene are often interacting with the type of investors who stimulate them to move towards additional revenue streams that can be accessed easily. Conflict resolution is more complex than providing contracts and documents, for example, and requires more sophisticated revenue models, 

Justice sector investors sometimes struggle to understand that more substantial growth can come from linking services to courts and other government justice services. Understandably, they are reluctant to support scaling plans that need the cooperation of government agencies. They see this as high-risk and unpredictable. 

Social impact investors and public-private partnerships may be more suitable sources of funding for game-changing justice services. In five of the seven gamechanger models, the submission problem of having to satisfy two parties with different objectives is a barrier to growth. Cooperation with the government can solve this problem and open up a path to rapid expansion. Investing in lobbying for a level playing field may be a way to secure access to the market for mandatory services that are certified by the government.

The team leading the game-changing service should carefully consider what type of investors will best match their mission. The case study in the box above illustrates this. Private investors may be guided by a short-term horizon and financial returns. Innovators in the HiiL Accelerator that come from the start up scene are often interacting with the type of investors who stimulate them to move towards additional revenue streams that can be accessed easily. 

Justice sector investors sometimes struggle to understand that more substantial growth can come from linking the services to courts and other government justice services. Understandably, they are reluctant to support scaling plans that need the cooperation of government agencies. They see this as high-risk and unpredictable. 

Social impact investors and public-private partnerships may be more suitable sources of funding for game-changing justice services. In five of the seven gamechanger models, the submission problem of having to satisfy two parties with different objectives is a barrier to growth. Cooperation with the government can solve this problem and open up a path to rapid growth. Investing in lobbying for a level playing field may be a way to get access to the market for mandatory services that are certified by the government.

Enhancing leadership and teams with specific scaling skills

Setting up or substantially scaling a gamechanger requires effective leadership. Private investors are extremely conscious of the teams of the innovative ventures they consider funding. For justice services implemented by governments, these teams should also be a major point of attention. 

Access to the right mentorship is important at different development stages of an innovation. This is especially important when an innovation is expanding, raising additional funding and increasing the market share for the justice service it offers. Whether the service is based within a government agency or startup, it needs growth in user numbers. Simultaneously, the organisation will be scaling and partnerships need to be strengthened.

Problem-solving courts: some promises and pitfalls of scaling

According to our case study, strong leadership is essential to problem-solving courts’ ability to deliver the treatment outcomes people need at scale. Without the leadership of visionary judges and other leaders aiming to do things differently, these courts would never have come into existence in the first place. 

Because of the tendency to hold on to the status quo, individual problem-solving courts rarely get off the ground without a strong champion. The reason for this can be traced to problem-solving principles and practices: the goal is not to force people to change, but to make them change because they want to. 

Problemsolving courts require committed leadership. This can sometimes pose problems for the courts’ long-term stability. For example, a community court in North Liverpool  in the United Kingdom was championed by prominent national politicians. Their leadership was important for the court’s establishment and initial funding, but changes in national leadership and the lack of local support were major factors in the court’s ultimate demise.

Problemsolving courts – as well as similar innovations – may also struggle when their early champions move on. To avoid this and prepare for the eventual departure of the personalities driving change, it is important to put the courts’ internal methods of working in writing. As previously discussed, it is also necessary to obtain evidence that the court’s approach works, as in the long run this is a more important driver of funding than is good leadership.

Mid-level leadership within problem-solving courts matters. Since staff are often employed and supervised by various partner agencies – rather than the director of the project as a whole – it is important they be selected with care, trained in the project’s mission, policies and practices, and incentivised to work as part of a single team.

Read more in our case study
Read more in our case study

In the scale-up phase, innovation leaders need a fixation on managing growth. In our innovation practice, we have noticed that justice innovators are often heavily involved in improving the service. Many judges and lawyer-innovators continue to handle individual cases during pilots. IT experts continue to improve the innovation’s web interface while also leading a team. Successful leaders of scaleups are leaving this to others and only work on the conditions for increasing the number of users, the revenues and the supporting networks.

A team should have a range of skill sets and methods. Scale-up programmes mention up to 20 different capabilities (ScaleUpNation n.d.). For example, they focus on developing an innovation’s competitive edge – a unique advantage that makes the service distinctive. 

Data on private sector scale-ups illustrate what kind of teams are successful in bringing a justice service to scale. Most services that scale are established by three or more founders with previous experience in setting up new activities. Half of the founders in the justice sector are insiders, and the most successful founders have set up many ventures. They tend to have considerable experience in previous management roles. 

Alfaham, T. (2022). Ministry of Justice launches 2023-2026 strategic plan. URL: https://wam.ae/en/details/1395303025955. Accessed on August 9, 2022.

Bal, N., Fogel, A., Kloman, S.D., & Sarin, S. (2019). Expanding access to justice with social impact financing. Social Finance.

Creutzfeldt, N. and Sechi, D. (2021). Social welfare [law] advice provision during the pandemic in England and Wales: A conceptual framework. Journal of Social Welfare and Family Law, pp. 153-174.

HiiL, (2020). Charging for justice: SDG 16.3 Trend Report 2020.

HiiL, (2020). Charging for justice: SDG 16.3 Trend Report 2020.

HiiL, (n.d.-x). Developing game-changing justice services. URL: https://www.hiil.org/what-we-do/the-justice-accelerator/. Accessed on August 2, 2022.

Manuel, M., Manuel, C. and Desai, H. (2019). Universal access to basic justice: Costing sustainable development goal 16.3. Overseas Development Institute.

Ministry of Justice and Security Netherlands, (n.d.). Innovate with JenV. URL: https://www.innoveermeemetjenv.nl/. Accessed on August 9, 2022.

Ministry of Law, Singapore,(2020). The Road to 2030: Legal industry technology & innovation roadmap effort.

Nesta, (n.d.). DIY Toolkit. URL: https://www.nesta.org.uk/toolkit/diy-toolkit/. Accessed on August 9, 2022.

ScaleUpNation, (n.d.). The art of scaling. URL: https://scaleupnation.com/the-art-of-scaling/. Accessed on August 2, 2022.

Tavneet, S. and Jack, W. (2016). The long run poverty and gender impacts of mobile money. Science, 354(6317).

Table of Contents

Summary
1. Making the case for people-centred justice
2. Owning people-centred justice
3. Agenda-setting: pressing problems, goals and gamechangers
4. Strategy 1: data on problems, impact and outcomes
5. Strategy 2: promoting evidence-based practive
7. Strategy 4: improving the enabling environment
8. Strategy 5: strengthening the movement
Annex
Case Studies:
Problem-Solving Courts in the US
Casas De Justicia Colombia
Local Council Courts in Uganda
LegalZoom in the US
CrimeSync
The Justice Dialogue
Methodology
Authors
Posted on

5. Strategy 2: promoting evidence-based practive

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5. Strategy 2:
promoting
evidence-based practice

Trend Report 2021 – Delivering Justice / 5. Strategy 2: promoting evidence-based practive

The second strategy a task force should consider aims to increase the effectiveness of what is done to prevent or resolve justice problems: evidence-based practice. Justice services are transitioning from executing processes prescribed by rules of procedure to offering a more complete set of interventions needed to prevent or resolve justice problems. Including separate interventions into effective justice journeys for people experiencing a justice problem is a major challenge. Currently, only 30-40% of justice problems are resolved. Between 70% and 90% of people facing a justice problem take action to resolve it. This means that many people take no action or get stuck. High-impact problems have even lower resolution rates. Few people achieve high-quality outcomes. 

In this chapter, we describe building blocks for evidence-based practice. Treatments generally consist of a process where people exchange information, get to a better understanding of their respective needs, and make decisions jointly or are guided by a third party to implement them. Bringing together effective interventions into a comprehensive treatment for land grabs, work conflicts, domestic violence or other pressing justice problems is needed. This will depend on investigating the outcomes that people experiencing these problems generally need. Interventions that can achieve these results will then need to be selected via literature research and collection of best practices from the field. This requires substantial R&D efforts and can eventually lead to treatment guidelines that are broadly accepted by justice practitioners. Implementing evidence-based practice, and integrating the necessary interventions into existing and new service delivery models, is the next step. Increasing the effectiveness of interventions can have huge benefits. For a specialised provider of evidence-based justice services it may be possible to increase resolution rates from 35% to 70%. Is this realistic? Seventy percent is the resolution rate often found in evaluations of programmes that implement mediation on a voluntary basis, without specialisation, and leave the specific type of mediation to the individual mediator. Judicial decisions tend to have a compliance rate of 50% or more. If the most effective ways of working can be brought together in evidence-based guidelines and if such treatments can be implemented in 80% of the country within ten years, the burden of injustice will be cut by half. If game-changing justice services standardise this way of working, the burden of injustice could be resolved even more quickly. Evidence-based working offers a clear path to achieving the goals and targets a task force has set.

Making the case for evidence-based working

In our work, we have learned that the case for evidence-based practice needs to be made carefully. A starting point may be that legal professionals are accustomed to applying evidence-based practice standards to the work of doctors and other professionals. Evidence-based working is often promoted by experts in corrections, and forensic or therapeutic interventions. Family courts hear evidence on appropriate treatments for distressed families in separation cases. 

However, implementing evidence-based practice in courts or legal services may lead to resistance from legal professionals who believe that it is first and foremost their individual skill set and experience that matters. They may describe a lawyer’s representation of a client’s interests and a judge’s handling of a case as a form of art. In common law countries, trials may be equated with “the real way” to deliver justice, even though trials have become rare events and most solutions result from negotiated settlements. 

We also meet development professionals and legal experts who hesitate to talk about best practice and research-based interventions. They are motivated by respect for the autonomy of communities to develop their own ways of delivering justice. Or they are  uncertain whether international best practice will work in local settings. In the following discussion, we explore how the case for evidence-based working can be made and how this resistance can be overcome. 

When a task force studies the data, its members will usually find that the supply side of the “market for fair solutions” is very fragmented. Individuals in cities are served by independent practitioners or by small law firms. Courts operate in one county and within a given court; each judge develops an individual way of working. Informal justice is delivered at the village level by volunteers. Between providers, there is little structured interaction and learning. In such a fragmented market, the benefits of standardisation and sharing know-how are considerable. 

Moreover, the way people are supported to achieve fair solutions is largely shaped by the roles of justice practitioners within institutions. In responding to a case of domestic violence, for example, the police may calm things without doing their due diligence to ascertain whether similar reports from the same household have been made already or investigate whether the violence is a persistent issue. A prosecutor may begin preparing for a court case. A doctor might focus on medical treatment. An NGO offering a safe house may or may not have a room available. A lawyer may start negotiating a solution or preparing a civil court case. Each professional helper is most likely to apply the interventions he or she specialises in and that align with the business model of his or her practice. Interventions applied by different practitioners in the same case may even conflict or work against each other. This often happens when the parties involved consult different types of practitioners: for example, when a husband consults a lawyer specialising in financial divorce settlements and the wife turns to a family mediator focusing on future family relationships, this can lead to additional conflict.

Within a professional role, the interventions and overall treatment for justice problems may not be that well described. NGOs and the police may have scripts for their interventions, informed by best practice and research. Lawyers in small law firms or judges are more likely to rely on their own judgement than on the collective intelligence of their peers. Their effectiveness can be increased if they would accept the principles of evidence-based practice. 

Justice practitioners intervene in ways that heavily impact people’s lives. Their actions have effects on people’s rights to freedom, their family relationships, their property rights, their work, their personal security, their housing, their farmland and their access to government services. Whether making such interventions with due regard for the likely effects on people’s lives can be seen as an ethical duty is something that can be explored with stakeholders (see box for suggestion).

Evidence-based working: an ethical duty for justice practitioners?

In the fields of medicine, psychotherapy and social work embracing  evidence-practice is increasingly seen as an ethical imperative. Using evidence wisely, also when evidence is scarce, is seen as an essential duty of professionals.  Take the example of domestic violence. Helping to solve a domestic violence problem requires thoughtful interventions that lead to a response that is fair, effective, proportionate and sustainable, with sufficient control by the survivor and without undesirable side-effects. Different forms of domestic violence exist, each requiring a different approach. Any intervention should aim to prevent new violence in a way that is tailored to the situation at hand. Outcomes may include access to housing and improvements to the financial situation of family members. If domestic violence leads to criminal prosecution, a mother may have to raise her children alone with a family income that has been dramatically reduced. 

There is an enormous body of knowledge about the diagnosis of domestic violence and the effectiveness of different interventions. Different forms of therapies have been tested on outcomes for both the survivor and the perpetrator.  

Can an individual practitioner be expected to keep up with this research and develop the best way to work with domestic violence cases? Is it acceptable that this knowledge is not used when a professional intervenes in ways that shape the future of women, men and children?

How might a Hippocratic oath for justice practitioners – similar to those used in the medical professions – be worded? When lawyers and judges vow to uphold the constitution, what can be added to their pledge to ensure they do no harm that could be avoided by systematically learning from colleagues and research?

Defining and monitoring outcomes

Evidence-based working is results-oriented, meaning it begins with the outcome in mind. Defining and monitoring outcomes is crucial. In individual cases, justice practitioners are increasingly trained to ask disputants about their interests – their wishes, worries and needs – and perhaps about the solutions they propose to serve these interests. For particular types of justice problems, the interests and solutions follow the same pattern. In personal injury cases, for example, victims tend to need information about what happened, recognition of harm, psychological support and help to reorganise their personal and professional lives. Insurance companies generally want financial predictability. It is also in their interest that victims are  motivated to find adequate sources of income, because that is likely to reduce their liability.

Task force members may engage with these outcomes through an exercise along the following lines. Imagine a paradigmatic case of land grabbing. Remember an accident in which people died and others could have prevented it. Think about a conflict between neighbours involving lots of noise, hostile communication and threats of violence. Then close your eyes and imagine how these people live and act six months from now. What does peace and justice look like for them? What is in their settlement agreement? 

Defining outcomes can start as simply as that. In a conflict between neighbours, outcomes that are likely to be valued are: absence of nuisance, resolution of border issues, improved communication, satisfaction with relationships, absence of violence and the fear of violence, and restoration for the harm done. 

Defining outcomes systematically may require an analysis of hundreds of settlement agreements for a particular type of justice problem. Research can identify trends and commonalities. Focus groups can select the most important elements of these agreements and identify key issues that need to be resolved in a typical case. HiiL has begun this kind of people-centred outcomes research.

Outcomes can also be defined and monitored in more general terms. On the basis of a literature research, HiiL developed survey questions that measured the quality of an outcome across four dimensions: distributive justice, restorative justice, effective problem resolution and transparency (meaning an explanation of why this outcome and not another one).

Once the outcomes have been identified, monitoring can begin. Providers of justice services can monitor outcomes during the process and after the service has been delivered. With questions such as, “to what extent has the nuisance in your neighbourhood already diminished?”, clients can be asked to monitor their progress as well. 

Problem-solving courts: outcomes monitoring in the community

Measuring and monitoring people-centred outcomes was key to the early success of problem-solving courts. Because the problem-solving approach was so different from the status quo, demonstrating evidence that it worked was necessary for building political and financial support. This meant clearly articulating the goals of problem-solving courts and finding ways to measure progress towards them. 

The extent to which a particular (problem-solving or traditional) court monitors progress towards these people-centred outcomes depends on its ability to track compliance and behaviour change among participants. This can be achieved through regular compliance reviews, which provide an ongoing opportunity for the court to communicate with participants and respond to their concerns and circumstances. Investing in electronic data systems that track and coordinate information makes it easier for a court to monitor its overall impact on case outcomes and to improve the quality of its mandates.

Successful outcome monitoring depends crucially on a court’s ability to develop strong relationships with researchers. Without this, early problem-solving courts like the Red Hook Community Justice Center would not have been able, for example, to quantify the impact of a seven-day jail stay in terms of budget, jail population, and arrests per month. Strong research partnerships made it possible to compare successful and unsuccessful court participants, which was necessary to assess and improve the quality of the court’s services.

Outcome monitoring at the Red Hook Community Justice Center was not without its challenges. Because most people who come before the court are charged with less serious crimes, their treatment mandates are relatively short. The short amount of time the Red Hook staff and service providers have to work with these participants means that outcomes related to individual progress are not likely to show a full picture of the court’s impact. The Red Hook Community Justice Center addressed this by measuring outcomes related to the court’s impact on the community. What was the effect on social cohesion and stability, it asked, when someone’s brother, father, or son was allowed to remain in the community instead of being incarcerated?

  • The OECD (2019) makes a strong case for focusing on and monitoring outcomes.
  • For examples of outcomes that HiiL has identified in the past, visit the Solving and Preventing page on the Justice Dashboard (HiiL n.d.-s). These examples are partly justice problem-specific and partly based on the aforementioned dimensions of distributive justice, restorative justice, effective problem resolution and transparency of the outcome. These dimensions are monitored in HiiL’s Justice Needs and Satisfaction Survey 2.0.
  • For more information on how problem-solving courts monitor outcomes, see the case study on Problem-Solving Courts in the annexure to this report.

Sharing best practice and research through treatment guidelines

Evidence-based treatment guidelines are the primary tools to inform practitioners about best practices and research. Such guidelines contain recommendations for selecting interventions and planning treatments that are most likely to achieve positive outcomes for the parties involved. 

The methods for developing and using guidelines in the medical sector are well established and can be applied to the justice sector. In the justice sector, evidence-based working is at an early stage. Justice practitioners increasingly share best practices and participate in skills training. Research on mediation techniques is increasingly available. The body of knowledge on ways to adjudicate disputes is growing. Different types of support for negotiations are being tested. 

Most of the evidence given in the justice sector consists of expert opinions or project evaluations. Few interventions have been tested in randomised controlled trials – although Harvard Law School’s Access to Justice Lab is beginning to change this. Developing guidelines is likely to gradually improve the quality of research and practice. Guidelines generate dialogue about what works, bring attention to the decisions that matter most during treatment, and highlight where new research is needed.  

An indirect benefit of working with guidelines is that it may help to reorganise expertise on what works in legal and justice processes aiming to prevent and resolve conflicts. The prevailing research culture in political science, legal science, and socio-legal research is to describe and explain current practices or to criticise proposals for reform. Legal theory and law and economics research tend to be theoretical. Conflict resolution, negotiation theory, innovation of justice services, regulation of legal services, and reform of legal procedures is studied by small groups. Each of these topics is an emerging academic discipline, loosely embedded in social sciences and law faculties; they are led by small groups of experts in academia and justice institutions. However, rigorous people-centred justice programming requires these disciplines to be connected. Instead of describing current practice, strong research and development capabilities are needed, similar to those that exist for tech, health care, and agriculture. 

People-centred guidelines describe interventions and treatments from the perspective of the people involved. What actions do parties need to take in order to resolve a conflict on terminating a work relationship? What practitioner-led interventions are most likely to deliver outcomes that allow the worker and the employer to move on? 

Addressing the consequences of violence committed by youth in a community requires a holistic approach. Resolving a family conflict happens through interventions that involve husbands, spouses and children. People-centred justice guidelines are thus different from those developed by police, prosecution, courts, therapists or social workers. Practitioners tend to focus on the interventions they can deliver for individual clients and on the rules they want to enforce. Guidelines for people-centred justice aim to combine these third party perspectives alongside the perspective of the parties involved. In this way, they are multidisciplinary by nature.

Guidelines aim to inform practitioners about what works. They provide a common vocabulary between different professionals working together on the same case. It is left to the professional to apply this knowledge to the individual case in a responsible way. The following box describes how individual treatments can be designed informed by evidence. 

Problem-solving courts: combining individualised treatment with evidence-based practice

Problem-solving courts have introduced a number of interventions that have been proven to deliver people-centred outcomes for the communities they serve. Although different interventions work for different populations, direct engagement with participants and the delivery of individualised treatments are key elements of the problem-solving orientation that all problem-solving courts share. 

Direct engagement means that the judge at once speaks to participants directly and that they are actively engaged in producing a positive change in their lives. This effort to ensure that participants feel heard and respected, and experience the process as fair, is supported by research on procedural justice. 

Individualised treatment means that the interventions delivered are tailored to the specific problems of each participant. This requires that the court offers a continuum of treatment modalities and services to respond to the variety and degrees of need that participants present. This service plan must be revisited by the court on a regular basis and adjusted depending on the participant’s progress.

Despite this shared approach to justice delivery, different problem-solving courts have identified different types of treatments and ways to monitor whether they work that are unique to the population they serve.

Community courts such as the Red Hook Community Justice Center generally work with the residents in their neighbourhood to identify what is important to them, rather than impose a predetermined set of solutions.

Certain interventions have been proven to improve outcomes for communities, victims, and individuals with justice system involvement when applied to low-level cases. These interventions include: using validated screening and assessment tools; monitoring and enforcing court orders; using rewards and sanctions; promoting information technology; enhancing procedural justice; expanding sentencing options (to include community service and shorter interventions that incorporate individualised treatment); and engaging the community.

  • For more information about best practices and research undertaken by problem-solving courts, see Centre for Justice Innovation, (2019). Problem-solving courts: An evidence review. 
  • Examples of recommendations can be found on the Family Justice page and Land Justice page on HiiL’s (n.d.-t; n.d.-u) Justice Dashboard.
  • HiiL(n.d.-v) has developed a method for Developing Evidence-Based Guidelines. Justice guidelines are collections of recommendations that support justice practitioners to prevent and resolve different types of justice problems in an evidence-based way. Central to the process of developing guidelines is bringing together literature on what works for people (evidence-based practice) and best practices from local justice practitioners (practice-based evidence).
  • See case study on ‘Problem-Solving Courts’ in the annexure of this report to learn more about usage of evidence-based practices.

Developing effective treatments: recurring building blocks

An effective treatment for a justice problem can be deconstructed like a set of Lego. Land disputes require reliable ways of mapping territories. Burglaries committed by individuals with substance use disorders can be addressed with tailored treatment and restitution for victims. Each category of justice problem requires a specific set of interventions that fits the outcomes needed for that type of problem. 

Some interventions can be used across many problem types. The practice of law has patterns and stages. Dispute resolution practices move from containing a conflict towards opening lines of communication, negotiation, mediation and adjudication (see graphic below). 

These building blocks can be used to create effective step-by-step treatments, in a similar way as standardised treatments are being developed in the health care sector (HiiL n.d.-b). In the justice sector, this is sometimes referred to as dispute system design. One international trend is to use combinations of mediation and adjudication. In courts, judicial mediation is developing. 

The building blocks unpack legal advice, mediation, informal justice and court adjudication into concrete treatment tasks undertaken by disputants and those who guide them. Mediation is a catchphrase for a series of interventions aiming at improving communication, reestablishing interpersonal respect and identifying needs, issues and possible solutions. Each of these tasks can be optimised. 

Adjudication is also a complex activity. In order to solve a real life conflict, it is generally insufficient to establish the facts and then apply the law. Crucially, people seeking justice do not work from the substantive rules that need to be applied, but from the problem they experience and the criteria that are helpful in reaching a solution that works for them. “Sharing” the burdens of injustice takes place using formulas and other objective criteria for allocating compensation, contributions, debts or assets. Adjudication also includes taking decisions on issues that the parties cannot agree on and creating conditions for acceptance of the outcomes. Ensuring compliance, as well as adjusting the results to new realities, is also needed. Sanctions are in reality a bundle of interventions serving different objectives: restoring harm or punishment.

Can every justice problem be solved?

Court leaders in the United States have expressed an ambition to provide 100% access to justice. Equal access to justice for all is also the ambition of Sustainable Development Goal 16.3. Is this realistic? 

Historically, legal institutions have been optimistic about their ability to resolve a diverse range of justice problems. Courts now deal with genocide, claims about slavery and environmental degradation. Criminal networks are dismantled by the same police forces working to respond to incest and intimate partner violence. Speech is regulated through defamation claims in courts and by content moderation on social media. 

Theoretically, every conflict can be understood in terms of the procedural and substantive interests of the people involved. Conflict resolution therefore consists of maximising the interests of both parties through integrative (win-win) solutions and distributive (win-lose) bargaining. In the conflict resolution context, win-win solutions are measures that improve relationships and generate future gains, such as apologies, measures to prevent future harm and measures to undo harm where still possible. If the harm caused cannot be undone, if the costs of remedies are substantial, or if control over assets is at stake, monetary transfers or a reallocation of assets can be part of the solution. This raises distributive issues over which the parties have to bargain. 

Over time, legal systems have created algorithms to decide on distributive issues: schedules for the calculation of damages, formulas for child support, norms for severance pay, guidelines for acceptable levels of noise and formulas for contributions to victim compensation funds. Theoretically, it is possible to design a formula for any distributive issue in any type of conflict. Such formulas can be simple or consist of a more complicated schedule, which differentiates outcomes according to the needs or contributions of specific groups. Once a formula is developed, it can be presented to a diverse group of experts, citizens or stakeholders and calibrated until it achieves maximum support. 

When framed as a process of supplying procedural justice, integrative problem solving and improving the acceptability of distributive outcomes, conflict resolution becomes an optimisation process. Economists have also designed a criterion for when this optimisation process should come to an end. They recommend minimising the sum of error costs and decision costs. If additional attempts to improve the outcomes are more costly than the probability of an error in the outcomes multiplied by the probability of an error, the process should stop.

Interpreted in this way, each justice problem can be resolved, although in real life, this framework may be difficult to implement. 

Dispute system design is now an established field of research. Methods to develop dispute resolution systems are described in a number of handbooks (Amsler Martinez and Smit 2020; Hodges 2020; Oetzel and Ting-Toomey 2013), which are a valuable resource for innovators. Task forces can use them when designing standardised treatments for employment disputes, family conflicts, personal injury problems and much more.

Involving two parties: solving the submission problem

The building block of ‘Meeting’ in the graphic above deserves additional attention, because it is so central to designing effective treatments (HiiL n.d.-w). As discussed in Chapter 3, many innovators that came to us with smart mediation and arbitration procedures ignored the submission problem. Five out of the seven gamechangers can only work for the person with the justice problem if the other party can be convinced to participate. 

The essence of a conflict or a crime is that somebody else is causing trouble for you. This person needs to cooperate for there to be a solution. Any intervention by the police, court, mediator or other third party will only work if the second party is available. 

The submission problem is inherent to every dispute. Solving debt problems requires the cooperation of creditors. Victims, or the prosecutors acting on their behalf, need perpetrators to cooperate. A divorce happens between two people who decide they do not get along well and want to legally separate. 

The other party should somehow submit to the use of the justice service to solve the problem as the original party sees it. This is unlikely to happen in the context of a conflict or crime, because it is not usually in the interest of the other party to do so or because communication has broken down. Sometimes the entire effort of one party to a conflict is focused on ‘avoiding submission’. Expensive lawyers are hired and legal loopholes are found to argue that a court has no jurisdiction or that mediation is inappropriate for the case.   

The submission problem should be solved first, because otherwise the service will not benefit many people or will only benefit  the people who least need it: parties who are both motivated and able to solve the problem by themselves. 

One solution to the submission problem is to make the justice service mandatory. Courts make adjudication mandatory. Governments have been hesitant to make mediation mandatory when starting pilots with it. When they learned that voluntary mediation is growing very slowly – even when supported by awareness raising campaigns – they often made mediation mandatory or obliged litigants to consider mediation before starting a court case (Rhee 2021). This happened in a number of European countries, in South Africa, in China and in jurisdictions in Australia, Canada and the United States. 

Social norms and other incentives may help as well. In the realm of consumer disputes, the submission problem is addressed by exposing non-cooperation on the part of the company that has delivered the defective product or failed to deliver the service on time. The reputation of the other party may be at stake if he or she refuses to cooperate with a dispute resolution process in the community. Non-cooperation can be sanctioned by ostracising a community member who does not submit to a dispute resolution mechanism. 

  • Solutions for the submission problem are explored in the Meeting building block on HiiL’s Justice Dashboard (HiiL n.d.-w). 
  • The literature on mandatory mediation is extensive. It mostly finds that voluntary mediation leads to a settlement at a slightly higher rate than mandatory mediation. The number of disputes resolved by a mandatory mediation programme (with sufficient capacity) is vastly higher than the number of disputes resolved by a voluntary program, however.

Turning top-down legal thinking into people-centred design

When designing effective resolution processes by combining interventions and using the building blocks, inspiration can be taken from human-centred design and service design concepts. These approaches bring a people-centred perspective to laws and legal procedures.

For example, one legal maxim is that everybody should know the law and that lack of knowledge of the law can be remedied with legal information. From a human-centred design perspective, the questions to ask are: What information about the law do people with justice problems need? When do they need it? How do they want to be informed? What other information might they need to resolve their problem? 

Designers of legal services have learned that information on how to resolve a justice problem is most valuable when it arrives in time. Information about communication skills such as active listening, effective negotiation and mediation is more likely to be helpful than information about broad constitutional rights.  

Another legal maxim is that decisions need to be enforceable. When discussing community justice services, lawyers often note that the outcomes of informal justice processes are difficult to enforce. From a service design perspective, the questions to ask are: What will make people want to comply with an agreement? What makes people think that the other parties involved will comply? 

Community justice services are more likely to deliver effective agreements in settings where there is some form of social control that increases the probability of their compliance. If the local policeman is willing to have a talk with an uncooperative person, that helps as well. Asking a judge from the formal system to assist with enforcement may also increase the likelihood that agreements are complied with and sustainable.   

Recent measures to limit the spread of COVID-19 remind us of what works to encourage compliance: the example set by people you identify with; monitoring by members of the community; reputation in the community and the threat of being excluded by it (ostracism); the threat of other sanctions; reciprocity (comply with your own obligations first, and the other party is more likely to comply); and rewards. All of these are known to incentivise compliance. 

Implementing evidence-based working

The task force next needs to ensure implementation. Guidelines have no effect unless the interventions they recommend are put into practice. The task force therefore must develop a strategy to implement evidence-based working. How can a wide range of justice practitioners – each working individually and sometimes in remote places – be stimulated to follow the recommendations?

Implementation science has become a field of study. Researchers in this emerging field investigate how evidence-based practices can be implemented. Building on experience from health care, mental health care, social work and other professional services, they have tested a range of options to stimulate evidence-based working. Many of these options are available in the context of justice services. If demand for high-quality justice services increases, so will the willingness of justice practitioners to work with an evidence-based approach. Legitimacy of the recommended practices, supported by legislation and formal acceptance, also helps. Learning collaboratives can be set up. Training programmes offering certificates and train-the-trainer programmes are effective as well.

The role of leading judges, academics, ombuds services and legal professionals is crucial: they can set an example of how best to resolve justice problems and emphasise the value of working based on evidence. Procurement processes of courts, ministries or legislative bodies can be designed in a way that gives preference to game-changing services that are evidence-based. The table below gives an overview of findings on implementing evidence-based working.

Conditions that support evidence-based practice
Assessment of the likelihood of conditions being met in settings where justice problems are resolved
Demand for best practices from users
No data available.
Involving stakeholders in planning and advisory boards
Can be achieved.
Legislation, mandates and formal adoption
Rule-following is more likely to be effective in the justice sector than in other sectors.
Long-term cost effectiveness of EBP
Integrated simplified processes are less costly than current court procedures. May require investing more resources in informal justice.
Preferential contracting
NGOs and donors are more likely to fund “evidence-based” practices than other projects.
NGOs and donors are more likely to fund “evidence-based” practices than other projects.
Most judges, informal justice providers, and frontline justice practitioners already believe in and actively promote mediated and peaceful resolutions. Codified best practices are likely to strengthen this belief and empower them.
Leadership behaviour
Many leading justices and ministers promote evidence-based working and greater reliance on informal justice providers.
Removing inconsistent organisational signals
Validated best practices can remove the ambiguity around mediation, informal justice and slow, complex formal justice by integrating the best elements of each.
Learning collaboratives
Can be organised.
Task shifting in low- and middle-income countries via best practices is effective in under-resourced settings (community health care workers are an example)
Empowering local justice providers and paralegals via best practices is likely to be effective.
Training (online)
Training in mediation techniques is available everywhere in the world. This is less true for adjudication practices.
Consultation and support by peers
No data.
Compatibility, complexity, trialability, observability, and relative advantage of EBP
EBP is often compatible with beliefs of justice practitioners and simplifies processes (compared to implementing complex legislation).
Modular approach (elements of best practices applied more broadly)
Some guideline recommendations are applicable across a variety of justice problem types (see building blocks).
An implementation strategy with multiple reinforcing interventions is more effective
A strategy that combines many of these interventions to implement evidence-based working may be costly.

Justice practitioners are more likely to adopt a new way of working if it is consistent with their values and beliefs. The more the recommended practices fit the workflow and the environment in which they work, the more they will be implemented. In a court setting that is supposed to apply a codified, adversarial procedure, evidence-based practice is less likely to be followed then in a setting where procedures are more informal and flexible. Financial incentives and other rewards for evidence-based working are also known to be effective.

Best practices are more likely to be applied by practitioners for whom applying standardised solutions is satisfying. Research on implementing evidence-based practice suggests that delegating standardised treatments to practitioners with fewer years of training is effective. These kinds of practitioners are more likely to adhere to and enjoy working according to standards. This is good news for communities looking to implement best practices with the help of paralegals or judicial facilitators. Academically trained practitioners, on the other hand, are sometimes more intrigued by exceptions to the rule. They like to use their skills to discover a solution for a rare or new problem. In a more optimal division of labour, these types of practitioners would focus on enriching and testing evidence-based justice guidelines. 

  • Implementation science is a discipline reported on by a journal that covers the latest insights (Biomed Central 2022). COVID-19 has provided many new learnings on this topic as well.
  • HiiL is currently developing a method to generate an effective implementation strategy in cooperation with organisations of justice practitioners.

Amsler, L.B.,  Martinez,J. and Smit, S. (2020). Dispute System Design: Preventing, Managing, and Resolving Conflict. Stanford University Press: Stanford, California.

Biomed Central (2022). Implementation Science. URL: https://implementationscience.biomedcentral.com/. Accessed on August 1, 2022.

Evidence-based Practice. Wikipedia, (2022). URL: https://en.wikipedia.org/wiki/Evidence-based_practice. Accessed on August 1, 2022.

Gleicher, L. (2010). Implementation Science in Criminal Justice: How Implementation

of Evidence-based Programs and Practices Affects Outcomes. Illinois Criminal Justice Information
Authority.

HiiL, (n.d.-b). Building blocks. Justice Dashboard. URL:  https://dashboard.hiil.org/building-blocks/. Accessed on July 7, 2022.

HiiL, (n.d.-s). Solving and preventing. URL: https://dashboard.hiil.org/solving-and-preventing/. Accessed on August 1, 2022.

HiiL, (n.d.-t). Family justice. URL: https://dashboard.hiil.org/problems/family-justice/. Accessed on August 1, 2022.

HiiL, (n.d.-u). Land justice. URL:https://dashboard.hiil.org/problems/land-justice/. Accessed on August 1, 2022.

HiiL, (n.d.-v). Evidence-based justice: The guideline approach.

HiiL, (n.d.-w). Meeting. URL: https://dashboard.hiil.org/building-blocks/meeting/. Accessed on August 1, 2022.

Hodges,C. (2020). Delivering Dispute Resolution: A Holistic Review of Models in England and Wales.

Legal Design Summit, (n.d.). Legal Design Summit: Design thinking will change the practice of law. URL: http://www.legaldesignsummit.com/. Accessed on August 1, 2022.

OECD, (2019). Equal Access to Justice for Inclusive Growth: Putting

People at the Centre. OECD Publishing: Paris.

Oetzel, J. and Ting-Toomey,S (eds). (2013). The SAGE Handbook of Conflict Communication, Integrating Theory, Research, and Practice.

Rhee, H.V. (2021). Mandatory Mediation before Litigation in Civil and Commercial Matters: A European Perspective, Access to Justice in Eastern Europe, 4(12), pp. 7–24.

Service Design, (2022). Wikipedia. URL: https://en.wikipedia.org/wiki/Service_design. Accessed on August 1, 2022.

Stanford Law School, (n.d.). The legal design lab. URL: https://law.stanford.edu/organizations/pages/legal-design-lab/#slsnav-our-mission. Accessed on August 1, 2022.

Stirman, S.W. et al, (2017). Bridging the Gap Between Research and Practice in Mental Health Service Settings: An Overview of Developments in Implementation Theory and Research, Behaviour Therapy, 47(6), pp. 920-93

Table of Contents

Summary
1. Making the case for people-centred justice
2. Owning people-centred justice
3. Agenda-setting: pressing problems, goals and gamechangers
4. Strategy 1: data on problems, impact and outcomes
6. Strategy 3: strengthening and scaling justice services
7. Strategy 4: improving the enabling environment
8. Strategy 5: strengthening the movement
Annex
Case Studies:
Problem-Solving Courts in the US
Casas De Justicia Colombia
Local Council Courts in Uganda
LegalZoom in the US
CrimeSync
The Justice Dialogue
Methodology
Authors
Posted on

4. Strategy 1: data on problems, impact and outcomes

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4. Strategy 1:
data on problems,
impact and outcomes

Trend Report 2021 – Delivering Justice / 4. Strategy 1: data on problems, impact and outcomes

Effective people-centred justice critically depends on the availability of data on the effects on people of injustices and justice interventions (Chapman et al. 2021). What is the impact of an unsolved land problem, for example? Which interventions are implemented to allocate rights to use the land and do these result in a solution with outcomes that are acceptable to the parties? Data collected at the level of service delivery provide information on the quality of a particular service. Data collected and published at a national level make it possible to monitor the extent to which justice problems are prevented and resolved within a broader population. 

Measuring justice delivery: the benefits of further standardisation

A standardised approach to monitoring the quality of processes and outcomes is crucial for increasing the quality of justice interventions that together make up a resolution process. A standardised set of outcomes allows a series of interventions that add up to a treatment to be compared and evaluated systematically. Currently, evaluation studies for justice interventions each make use of their own methods. Ideally, practitioners and researchers would use similar methods to monitor the quality of the process and outcomes of, for example, personal injury cases.

When HiiL (n.d.-n) developed its measuring justice methodology, standard indicators of procedural justice existed: voice, neutrality, respect, and trust. Further standardisation is needed to measure the quality of justice outcomes across other dimensions, such as distributive justice, restorative justice, effectiveness and transparency.

Measuring the time, money and emotional costs needed to obtain resolution has proven to be difficult. People go through complicated processes to achieve justice and generally find it difficult to disentangle the costs of resolution from the impact of the problem. A better methodology to measure the burden of seeking justice is needed. A clear and consistent finding is that the emotional costs of this process should not be ignored. The existence of secondary victimisation as a concept – being victimised by the procedure after being victimised by a crime or accident – is a case in point.  International standards for monitoring problems, impact, outcomes and justice journeys are being developed. 

Regular national surveys: needed and difficult to fund

Countrywide data is needed. Ideally, data enables the task force and the providers of justice services to monitor progress towards people-centred justice. Widening justice gaps, or increases in the burden of injustice, can signal a need to redirect resources or to develop new treatments. 

Data on the economy are published on a quarterly or monthly basis. Crime statistics are typically published on a yearly basis. Data on justice problems, impact, vulnerable groups and outcomes achieved can be collected through standardised annual – or more frequent – surveys. For most sustainable development goals, time series data exist that show trends in performance for different countries. Our World in Data has become a core hub for this data (University of Oxford and Global Change Data Lab n.d.). Few time series related to justice are available (ibid). Data comparisons occur mostly between countries, while survey repetitions are few and far between (HiiL n.d.-o). 

When publishing data about justice problems in the population, the task force should reflect on actionability. What information should be shared with which audience? Who can take action on which elements of the data? How do they learn about the data? By conducting Justice Needs and Satisfaction Surveys in a wide range of countries over the years, HiiL has learned how data can be made more actionable (HiiL n.d.-p).

Survey data are often presented as percentages of populations (OECD and Open Society Foundation 2019). However, for a team looking to scale up a gamechanger and do capacity planning, for example, the number of potential users is more meaningful than a percentage. This can easily be estimated from survey data. Disaggregation is key. Data users often request that data be grouped by type of justice problem. Breakdowns of specific issues (i.e. divorce or child support) and specific complications (i.e. violence, loss of job, personal injury, relational problems) are also useful. In some cases, however, sample size may become a problem, because a survey will not always capture many people with one particular type of justice problem.

Data about impact and outcomes achieved must always be interpreted. User stories can be used to represent and illustrate the average justice journey. Do people need more information to resolve their justice problem? Is contacting the other party for meaningful negotiation their main bottleneck? Do they need more interpersonal respect? Was the amount of money they received through the resolution process unfair? Justice journey maps can answer these questions in a memorable and engaging way.

Survey results are much easier to interpret if they include benchmarks. International rankings such as those provided by the World Justice Project and comparisons to neighbouring countries can be helpful (World Justice Project n.d.). However, few countries consistently perform at a level high enough to be visible in national surveys. Most high-performing services operate at a small scale. Few countries have scaled a particular service to the entire target group. When selecting benchmarks, this needs to be taken into account.

Securing resources for annual surveys is a challenge. Victimisation surveys, once done in a standardised way across Europe, have been discontinued (University of Lausanne n.d). Legal needs surveys are administered irregularly. National statistics offices are now asked to include questions about justice in their large population surveys (Statistics South Africa 2019). 

Surveys can be carried out in person, in people’s homes, through panels organised by data collection companies, or through social media. Each method has pros and cons in relation to representativeness. Collecting social media data creates an opportunity to monitor trends in justice needs in real time. HiiL (n.d.-q; n.d.-r) experimented with this during the COVID-19 crisis by comparing social media trends with the observations of experts. Conversations on social media can be searched using keywords that are associated with particular justice problems. Trends in problems can thus be monitored during times of crisis, whereas in normal times the number of family problems or land problems is likely to be rather stable.

Triangulation with other data

Survey data need to be compared with other justice data. In most of the countries where HiiL has carried out a Justice and Needs Survey (JNS), the World Justice Project has collected basic access to justice data in the three largest cities (World Justice Project 2019). Courts sometimes collect user experience data. These forms of justice data can be used to enrich existing survey data. 

Access to justice reform programmes are executed by private, public or civil society organisations. Sharing performance and output data with the task force (and the public) in open formats should be part of implementation activities planned by the task force. Indicators for which there is no valid, reliable and regular data have little value.

A flaw of current survey methods is that they miss people who are in prison, are homeless, or who are hiding from the authorities. Some people may have problems that they are ashamed to talk about and deny. Depending on how questions are asked, surveys may miss the gravest injustices: people dying or disappearing. Survey companies contact people at home, through phone calls, through email or through social media. Reaching the populations excluded by these methods requires a more creative approach.

Data on the number of people in these hard-to-reach categories can be used as a proxy. Estimates of these numbers are available in many countries. Each individual who is incarcerated, homeless or unregistered is very likely to experience their situation as a justice problem. More reliable data on the problems these people have can be obtained by surveying segments of these populations.

Chapman, Peter et al., (2021). Grasping the Justice Gap: Opportunities and Challenges for People-Centered Justice Data. Washington, D.C.: World Justice Project; New York: Pathfinders for Peaceful, Just and Inclusive Societies; Paris: OECD.

HiiL, (n.d.-n). Justice Dashboard – Methodological Note. URL: https://dashboard.hiil.org/justice-dashboard-methodology/. Accessed on August 1, 2022.

HiiL, (n.d.-o). Country comparison page. URL: https://dashboard.hiil.org/country-comparison-page/. Accessed on August 1, 2022. 

HiiL, (n.d.-p). Projects. URL: https://www.hiil.org/projects/?_sft_service=service-1. Accessed on August 1, 2022. 

HiiL, (n.d.-q). Delivering justice in the Covid-19 crisis (web report). 

HiiL, (n.d.-r). Justice in the Covid-19 crisis: What people are saying on social media (web report). 

OECD and Open Society Foundations (2019). Legal Needs Surveys and Access to Justice. Paris: OECD Publishing.

Statistics South Africa, (2019). Governance, public safety and justice delivery. Republic of South Africa. 

University of Oxford and Global Change Data Lab, (n.d.). Our World in Data.

University of Oxford and Global Change Data Lab, (n.d.). Promote just, peaceful and inclusive societies. Our World in Data. URL: https://sdg-tracker.org/peace-justice. Accessed on August 1, 2022. 

World Justice Project, (2019). Global insights on access to justice: Findings from the World Justice Project general population poll in 101 countries. 

World Justice Project, (n.d.). Research and data. URL:  https://worldjusticeproject.org/our-work/wjp-rule-law-index. Accessed on August 1, 2022. 

Table of Contents

Summary
1. Making the case for people-centred justice
2. Owning people-centred justice
3. Agenda-setting: pressing problems, goals and gamechangers
5. Strategy 2: promoting evidence-based practive
6. Strategy 3: strengthening and scaling justice services
7. Strategy 4: improving the enabling environment
8. Strategy 5: strengthening the movement
Annex
Case Studies:
Problem-Solving Courts in the US
Casas De Justicia Colombia
Local Council Courts in Uganda
LegalZoom in the US
CrimeSync
The Justice Dialogue
Methodology
Authors
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3. Agenda-setting: pressing problems, goals and gamechangers

3

3. Agenda-setting:
pressing problems, goals and gamechangers

Trend Report 2021 – Delivering Justice / 3. Agenda-setting: pressing problems, goals and gamechangers

In this chapter we explore how task forces can scope their work. They may be assigned a specific type of justice problem. They may also be expected to improve access to justice for all civil justice problems, for example, or to improve access to justice in general. Connected to this, they may select a particular type of justice service delivery model that they set out to implement in the country. 

Before zooming in on a direction for a solution, a task force may want to take the time to jointly internalise lessons learned. Justice innovation has often failed. We listed a number of common justice innovation traps, detailing the reasons why they should be avoided.

During this process, task force members develop a joint understanding of the level of reform they are going to pursue. Task forces can generally be expected to focus on renewing and eventually replacing current services, rather than upgrading them.  

Prioritising justice problems

Surveys of justice needs provide data on the most pressing justice problems. Task force members may want to connect to these needs by sharing personal stories of injustice. In the stakeholder dialogues that HiiL facilitates, lived experiences of people and data complement each other.

In this way, task force members are reminded that the most pressing justice problems are related to the satisfaction of core human needs. One of these core needs is to forge and maintain good family ties, even in times of hardship. Another is positive and empowering work that provides an adequate income. Access to land and housing are core needs as well and quality of life in communities requires good relationships with neighbours. Businesses need certainty on how they can invest and the environmental impact of activities needs to be minimised.

These core human needs are at stake when families separate, workers sent home, tenants evicted, and when neighbours become a source of noise, irritation or trash. People also want access to essential government services: health care, water, electricity and education. Debt relief and social benefits protect against poverty. People want to be safe from crime and violence, and to be protected against accidents. 

Task forces can set priorities in a rigorous way. Although quantifying impact is not straightforward, justice problems can be ranked according to frequency and severity. 

We recommend that task force members establish the resolution capacity needed based on the number and severity of problems that occur each year. The numbers in the graph found in Chapter 1 give an idea of the capacity needed by a country to prevent and resolve its most pressing justice problems. These estimates can be adjusted based on a country’s size. More precise numbers can be obtained from a legal needs survey or from administrative data (if all relevant problems of that type are recorded by a government agency). 

Setting goals, indicators and targets

Task forces typically select either a problem type to work on, or up to five of the most pressing problem types. They may then set goals. One goal may be to prevent domestic violence in a country, or to resolve land conflicts efficiently and effectively. Clear goals, expressed in outcomes for people, enable task forces to assess whether the programme implementation has been successful.

Some programmes have multiple goals and that can be confusing for implementers. Houses of justice in Colombia (see annex of this report) aim to increase the efficiency of existing services, to extend the reach of government in low-income neighbourhoods and rural areas, and to expand access to justice. These goals may need to be aligned and rephrased as outcomes for people, in accordance with emerging best practices. In HiiL programmes, we advise stakeholders to phrase objectives in a SMART way: specific, measurable, assignable, realistic and time-related (Doran 1981).

A goal directly linked to the challenge addressed in this report, for example, would be to develop the capabilities and methods to resolve or prevent the most pressing conflicts in an evidence-based and people-centred way. 

Measuring progress towards a goal requires indicators. Indicators for conflict resolution can be defined in several ways. The indicator for SDG 16.3 proposed by the UN is the “number of persons who experienced a dispute during the past two years who accessed a formal or informal dispute resolution mechanism, as a percentage of all those who experienced a dispute in the past two years, by type of mechanism.” This indicator focuses on accessibility to existing institutions. In the people-centred justice approach, outcomes for people are key, so resolution rates for problems can be a good indicator. A task force may also decide to take into account the fairness or effectiveness of solutions. One way to operationalise this is to quantify the problems reported in surveys as fairly resolved and add that to the number of problems that respondents consider on track towards a fair resolution, because some problems will still be in progress at the moment the results are measured.

In a programme developed for the Netherlands, HiiL proposed the following indicator: “the percentage of pressing justice problems resolved by a decision or agreement that is evaluated as fair by the disputants.” This information is available from the legal needs survey data that are collected every four years in the Netherlands. Selecting meaningful indicators is crucial. Mediation programmes are expected to have a high rate of settlement. This indicator is also increasingly used by courts. The rate of settlement needs to be combined, however, with an indicator that captures the quality of the resolution. 

Disposition times are another indicator commonly used by courts. The number of months it takes from filing a case to the date judgement is rendered can be easily monitored. In Russia, the justices of the peace must decide cases within two months and are reported to be mostly successful in doing so (Hendley 2017). Here again, another indicator may be needed to reflect whether the court’s intervention was helpful. Moreover, disposition time indicators do not include the time between the emergence of a problem and the filing of a case in court. People-centred surveys therefore tend to ask about the time between the emergence of a problem and its resolution. 

Recidivism is an indicator that should be used carefully. It measures whether someone who has committed a crime is again arrested or convicted. Data suggests that a second arrest is more likely to be for a minor offence. On the other hand, domestic violence may occur repeatedly before it is reported to the police. Moreover, recidivism measures seek prevention rather than resolution. They are unrelated to whether a victim has received restorative justice and only weakly related to whether community harmony is restored. 

Task forces should think twice before selecting indicators related to inputs. Ministries often set targets for the number of policemen in the street or for the number of judges, for example. Sometimes budgets for legal aid or for courts are presented as indicators in policy documents. Research has shown that increases in budgets are not necessarily associated with better outcomes for people.

Once indicators have been established, targets can be set. Fair resolution rates for high-impact problems currently hover around 30%. Alternative dispute resolution (ADR) programmes often report resolution rates of 50% or higher. Task force members can investigate these rates and assess whether increasing the resolution rate to – for instance – 55% in two years and to 70% in four years could be a target. For the Dutch programme, we proposed a target of 80% for resolving pressing conflicts by a decision or agreement considered as fair by the disputant. The indicator in 2019 stood at 32% . The percentage of problems resolved by the decision of an authority or by agreement between the parties is at 39% (5% decision, 34% agreement). In the past, it has been as high as 60%. When a decision or agreement is achieved, Dutch citizens tend to accept them as fair (73% for decisions, 84% for agreements). The 80% indicator is thus ambitious, but seems achievable via rigorous R&D and innovation efforts.

Selecting strategies

When setting targets, task force members will have strategies in mind to achieve them. A strategy is a route to meeting the goal, taking into account existing and foreseeable contexts, and the available capacity and resources. There may be more than one strategy towards a goal. Elements of strategies the task force might consider include improvements in treatment and service delivery through potentially game-changing models, or improvements to the enabling environment. 

Stakeholders may start by discussing who will provide new interventions and the treatment of justice problems; they may launch game-changing services, or be responsible for improvements. Early discussions may bring competing interests of agencies and service providers to the fore, which can hinder progress. At this crucial moment, the task force should remain focused on achieving the best possible outcomes for people. What are the best processes for resolving the problem(s) identified by the task force? What is the best model for service delivery? Dialogue and R&D about this should be undertaken independently from “who” delivers the treatments or is best capable of offering a game-changing service. Who will be responsible should be decided when assessing the available and needed capabilities. Ideally, this will be decided on a level playing field by an independent assessor. 

Strategies can be tested in relation to the goals and targets. What share of the population will the game-changing service reach? What increase in the resolution rate is expected once a new treatment has been implemented? What are the political push and pull factors that will negatively or positively impact the implementation of a particular improvement?

In projects HiiL has participated in, task forces have often opted for ADR or mediation as an element of the strategy used. This is a high-level vision that needs to be more concrete. Is ADR or mediation a way to resolve justice problems that need to be broadly applied by justice practitioners? If so, how can this be developed in an evidence-based way? Alternatively, are private sector arbitrators and mediators the preferred actors responsible for service delivery? If so, will they be able to reach 80% or more of the target group? 

Strengthening community justice services is another popular strategy for task forces. HiiL has worked with task forces focused on holistic approaches to family justice or on the justice needs of rural populations in post-conflict countries. Previous task forces that have addressed land disputes have looked at improving registration of land ownership. Committees tasked with redress for systemic injustices have developed criteria for victim compensation.    

The hypotheses embodied in the strategies need to be tested during the programming phase. Before a task force definitively selects a game-changing service, the stakeholders need to assess the feasibility of its implementation. Is the strategy likely to achieve the goal and move the indicator forward? Are there organisations ready to deliver it? Is the financial model sound?

  • HiiL has developed a method on developing pathways to meet specific justice goals that have been agreed upon by a group of committed justice leaders. These pathways are flexible and can be adapted to fit varying contexts and goals.

A mission approach example

In the flowchart below, a so-called mission map is sketched. It represents the five strategies outlined in Chapters 4 to 8 of this report. Data collection on problems and outcomes is combined with developing evidence-based treatments for the selected justice problems, which could be work conflicts, land use issues, domestic violence or the most common types of property crime. How to inform people, how to give them voice, how to involve them in designing solutions for the issues, and how to establish fair monetary contributions; at each step, the most effective interventions will be designed and continuously improved during implementation. Treatments will then need to be delivered in all situations  by using the most effective service delivery models, which could include community justice services, online-supported one-stop procedures, or user-friendly contracts. An enabling regulatory environment that supports continuous R&D will drive this process, fuelled by practitioners, an ecosystem of innovators, and more vocal users. This open environment, supported by a stronger evidence base on what works and more sustainable delivery models, will rapidly make providers of justice services and justice practitioners more effective. New services can emerge and self-helpers will become more confident. Outcomes that people can generally accept will be clarified and will be more frequently the endpoints of more effective treatments that will also deliver on the most prominent procedural justice needs. The improved service delivery models ensure that solutions will be accessible for everyone against reasonable, foreseeable costs. Instead of being overburdened and under-resourced, justice services become financially sustainable, serving far more people, achieving many more tangible results for their users and safeguarding new revenue streams.

A mission map such as the one above provides a theory of change for a programme. The outputs of the programme provide intermediate and more remote outcomes, ultimately leading to the measurable impact of resolved or prevented problems. Between each of the elements of the results chain, progress can be monitored and measured. Resources can be reallocated towards the nodes that are most promising. Bottlenecks can be targeted.   

Justice innovation traps: learning from experience

Learning from failure is crucial. HiiL has worked with a number of task forces over the past ten years. Hundreds of innovators have come to us with their ideas and initiatives. We have taken leaps of faith ourselves and have made every imaginable innovation mistake. The failures in justice innovation and court pilots are as instructive as are the successes. Here we share four points that we suggest future innovators avoid, as they can lead to costly delays and wasted energy. 

Piloting without sustainable revenues in sight:

Piloting without sustainable revenues in sight: A recurring mistake is to start pilots but postpone thinking about revenues and rewards. Doing justice equals doing good, so innovators often assume that somebody will pick up the bill. Early on, this may be the case, and the task force may be misled by this. Many NGOs love justice innovation and are happy to spend significant sums on a pilot that protects the rights of women or children, for example. Politicians love free mediation centres. Big law firms love pro bono programmes. Prosecutors love programmes that divert cases from courts and bring multi-disciplinary teams into the room to decide on the best treatments. Judges pilot a lot.

The question a task force should ask about any pilot is: is this financially sustainable as a scaled venture? If the pilot is akin to building a fancy school in Tanzania to fix the national education system, or flying doctors to remote places to improve community health services where local networks of providers already exist, it should be reconsidered.

People love to spend money on something tangible. Some innovators repeatedly secure grants and awards. But grants seldom work in the long-run. Effective justice services need a sustainable stream of revenues that exceed costs. This way, justice practitioners can be rewarded for their efforts, money can be saved, and the service can be scaled and continuously improved. There are no shortcuts. The consequences of this are discussed in Chapter 6.    

Fixing services that do not yet deliver fair outcomes:

Innovative lawyers often propose improvements to current processes; for example, tools to increase the number of productive hours at law firms, or referral sites that match lawyers and clients. Courts try hard to decrease their backlogs, refer cases to mediation, or spend millions to digitise their files and procedures. 

More of the same: what is the effect on resolution rates of these measures often considered by reformers?

  • Better planning of court cases
  • Greater integration of courts, police and prosecution
  • Programmes to reduce backlogs
  • Court appearance reminders
  • Diversion of cases to mediators
  • Pro bono services provided by major commercial law firms
  • Limited time for lawyers to argue their cases
  • Anti-corruption measures
  • Laws written in user-friendly language
  • Improved processes for updating laws

The task force is likely to receive many suggestions to first upgrade current processes and services (UNODC and UNDP 2016; Law Commission of India; Republic of Kenya 2012). More digitisation, better access to court houses, improved scheduling of court hearings, or limits to the number of pages in documents filed – these can seem like effective upgrades. Many countries launch huge projects to update their codes of criminal and civil procedures. Judges and lawyers typically have many ideas on how to improve services provided by the courts. Expanding legal aid by lawyers has broad support. Alternatively, task force members may want to build on trends in investments in legal tech and in the allocation of court resources. In our 2020 trend report, Charging for Justice, we found that most investments go to startups that increase the efficiency of law firms or legal departments of major businesses. We also described the hundreds of millions of dollars spent on upgrading court IT. We estimated that only 2.5% of investments in legal tech go to services that target individual customers with legal needs.

It is tempting to believe that these proposed improvements will ultimately lead to better outcomes for people with justice problems. Task force members should be invited to test their assumptions by sketching how this trickle-down mechanism would work in practice. A task force should investigate whether such a mechanism is realistic, and whether working on these improvements is the best way to spend precious time and money. 

Will resolution rates be increased? Will people get substantially better outcomes? What impact will they have in a typical justice journey? The task force can use the criteria in the box below to assess the proposed upgrades.

USING INDICATORS TO ASSESS PROPOSED UPGRADES

Description of upgrade
Example: Improved enforcement of court judgments with monetary sanctions. This happens through (1) investing in a network of debt collectors, (2) improved ways to collect debts from employers and banks and (3) improved ways to sell debtor’s assets
Assessment criteria:
Example of assessment
What is the expected increase in resolution rates for the most pressing justice problems?
Four percent of pressing problems are decided by the courts. In 25% of cases involving a pressing family, land or crime problem, money payment is an essential component of resolution 70% -> 85% compliance = 0.3% Is thus the expected increase in resolution rates
Which people (with high impact justice problems) will benefit from this upgrade?
Mostly companies collecting debts and governments collecting fines. A small number of individuals who have personal injury cases or who collect child support or unpaid wages via a court procedure will also benefit.
How many pressing injustices will be prevented per year?
Evidence for court sanctions and effective enforcement preventing injustice is inconclusive.
What is the investment needed for this upgrade?
Programme of several millions of euros
What are the yearly costs of sustaining this upgrade?
The cost of maintaining the network minus the debt collection fees that can be collected from debtors and creditors.
What are possible negative side effects and how can they be avoided?
Increased debts for indebted persons, which can be avoided by better debt restructuring
How likely is the programme to be successful in implementing the proposed interventions?
Estimated 60%.
What are the best alternative ways to invest this amount in people-centred justice and allocate an annual budget for this?
Calculate the investment and annual costs. Compare with alternative ways of investing/spending this amount.

Another tool to let task force members reflect on upgrades is to conduct studies visualising current justice journeys, such as those conducted by RMIT University (2016). These visuals often reveal that people need to interact with a range of professionals and agencies to address their problem. A victim of an accident may have to deal with the police, medical experts, insurance companies, lawyers, social security agencies, the prosecution, a mediator and a court. Each of these actors has different bureaucratic procedures that come with many formalities. 

Mapping current justice journeys will help the task force and providers of future gamechangers strengthen the case for more fundamental renewal. It will also make it easier to identify the crucial elements of treatments. Many task forces indeed consider replacing existing services. Stakeholders they consult want to introduce alternative dispute resolution methods or renew the connection between formal and informal justice in their countries. They want to set up new types of specialised courts. They suggest diverting cases from the criminal justice system to new justice services. They recommend investing in legal information provision as an alternative to letting each person be informed by a lawyer. More often than not, task forces agree to replace existing services with alternatives or cautiously integrate newly-designed services into the existing justice system.  

Missing the submission problem:

Many legal innovators look at court procedures and assume they can do better. They design smart arbitration procedures, delivering decisions in two months. Others start offering online mediation services with highly skilled mediators. Many lawyers have mobilised their IT-savvy friends to design algorithms for settling monetary claims in a rational way. Judges, too, often reflect on possible improvements to their work processes – In pilot projects in the Netherlands and Belgium, judges have developed procedures that allow claimants to walk in with a problem and tell their story, upon which the judge will invite the other party for a dialogue. In most countries, some judges have tried to design more sophisticated procedures to deal with construction conflicts or personal injury. 

The first question that these legal innovators should be asked is: how will you ensure that the parties submit to your new process? The usual answer from innovators is that the parties will love the procedure and prefer it to the unpleasant experience of the procedure currently offered. 

This is not how things work. The graveyard of justice innovation houses many seemingly smart procedures that have been offered as a voluntary option. The stumbling block is that new ways of resolving disputes have to be sold to all parties to a conflict. A conflict is by definition a situation where people do not agree on the way forward. Most of the time, one party needs a solution more urgently than the other. Solutions that claim to benefit only one of the parties are unreliable because it is difficult to understand the nature of the problem by looking only at it from one side. 

Effective dispute systems are likely to be “mandatory.” From a people-centred perspective, this means that they contain incentives for both parties to participate, even if the process is difficult or the outcome may be discomforting. So strategies to develop game-changing services involving a third party start by fixing this submission problem, which may be quite a challenge.

Inability to remove legal hats and take other expertise onboard:

Many reform attempts suffer from an excessively or exclusively legal lens. Solutions are suggested in the form of new laws, additional information about laws or additional legal services. The reality of justice reform is that many other skills and resources are needed. These cannot be gathered from IT experts or managers alone – they need to be integrated into better resolution processes and service delivery models. To generate impact, justice innovators must consider a wide range of perspectives and be prepared to wear many hats: that of a creative designer, a policy maker, a user, and a donor or investor. The prospect of becoming a justice entrepreneur overnight by creating a solution to fix the justice system is exciting to many young lawyers and judges. But to make a real difference, innovators must be prepared to work with other stakeholders who may have conflicting interests. This is challenging but essential work. Working collaboratively rather than in silos can help innovators avoid introducing solutions that are certain to fail.

Selecting promising service delivery models: seven potential gamechangers

After deciding which pressing justice problems to select for implementing evidence-based practice, and testing early stage innovation suggestions, the task force will have to explore the possible service delivery models. Even when justice practitioners have the tools and methods to achieve high resolution rates in individual cases, these tools and methods will only improve the overall resolution rates in a country if they are available to every citizen, business and government agency. Currently, service delivery models are not scalable. Courts tend to be involved in around 5% of conflicts, and lawyers in perhaps 10-20% of cases. Government agencies have difficulties managing all conflicting interests regarding land use or delivering social services. Informal justice is irregularly provided in communities. Police and prosecution have limited capacity to deal with all kinds of of crime.

Based on lessons learnt, HiiL has developed three criteria to identify potentially game-changing service delivery models. A game changer must be a service delivery model that is: (1) able to deliver effective treatments consistently; (2) financially sustainable; and (3) scalable as a service (or as a combination of services) to 80, 90 or even 100% of the population experiencing the problem. 

Based on these criteria, we suggest that task forces consider seven promising types of service delivery models. Other models are likely to exist and should be explored as well if found to be promising, but the seven models sketched below have a clear potential and are being pursued by many justice entrepreneurs. 

Focusing on gamechangers will help innovators to design innovations that have the potential to deliver effective and sustainable justice services. The discussion will help policy makers to channel funds into viable innovations and formulate regulations in which these gamechangers can thrive.

Community justice services

Community justice services deliver solutions according to treatment guidelines effectively and to each person who needs them. Usually these services integrate formal and informal justice, and may take the form of: houses of justice; paralegals; justices of the peace; judicial facilitators; or community tribunals (HiiL n.d.-g).

Early stage examples of this game-changing service delivery model include justices of the peace, facilitadores judiciales and paralegal programmes in many countries,  Casas de Justicia in Columbia, Local Council Courts in Uganda, and Abunzis in Rwanda. Case studies on Casas de Justicia and Local Council Courts can be found in the annex of this report. Bataka Court in Uganda shows how a private player can bring standardisation and regular monitoring and evaluation to a method of addressing disputes that is often considered informal and ad-hoc.

The Sierra Leone Legal Aid Board is another example of how community justice services developed at scale - through the participation of the public sector and donor agencies - brought down the unit cost of delivering justice.  The tribal-state joint jurisdiction wellness courts in the United States effectively try to bridge the gap between formal and informal justice systems.

Community justice services exist in every type of country (low-, medium-, and high-income). They are more likely to exist in rural settings than in cities. Some are delivered by a panel of ordinary citizens, while others are overseen by individuals with authority in the community. Procedures are more likely to  be standardised in high-income countries and more likely to be free-form in low-income countries (HiiL 2022a). Informal community justice has been incorporated by governments into organisations of judicial facilitators or by private initiatives into paralegal networks. Houses of justice and justices of the peace belong to the same family: the former as an interdisciplinary service facilitating resolution and the latter as an adjudication service with a simplified procedure.

The origin of the community justice service may limit its potential to scale. Sometimes community justice services are related to traditional justice within a tribe. In Ethiopia, different informal justice services cover different states, depending on which tribe has the majority. Community justice services may also have roots in a religion or be connected to a local or central government. In Switzerland, each canton has a separate system of local dispute settlement services. In some countries in the Sahel region of Africa, the government’s geographic reach is limited, meaning services initiated by the government may not achieve national scale. If a local tribe has developed a specific way of settling disputes, this may not be acceptable to people from other tribes in the same region. In Colombia, houses of justice are seen as mechanisms for establishing government authority in remote areas.

Community justice services sometimes scale across borders. Facilitadores judiciales programmes exist in several South American countries, and paralegal models can be found in many African countries (HiiL 2022a).

HiiL’s (2022a) policy brief on Community Justice Services outlines the reasons why we expect this gamechanger category to grow and the barriers that community providers will have to overcome in order to achieve long-term sustainable growth. These include the following:

  • 1. Standardising effective working methods in a setting of scarce resources
  • 2. Monitoring outcomes
  • 3. Combining the strengths of informal justice and rights-based dispute resolution
  • 4. Making community justice services affordable and financially sustainable
  • 5. Building scale from the ground up

User-friendly contracts

Services that provide safe, certified and user-friendly contracts or other legal documents to people, ensuring fairness in families, at work, among neighbours, and between small businesses and their partners, as well as between governments and stakeholders in the use of land.

Creative Contracts in South Africa is a notable example of contract visualisation. While LegalZoom in the United States is an online information platform, it also provides easy to access contracts for everyday legal issues, especially those pertaining to SMEs. Platforms such as DIY Law in Nigeria, VakilSearch in India, and Avodocs in Ukraine are examples of successful document automation platforms that address the needs of small and medium enterprises.

Contracts and legal documents are needed to prevent conflicts or help manage them constructively. If user-friendly and effective, marriage, work and housing contracts can support fair and effective relationships between people. A major mining, energy or housing development project can only be successful if it is based on consent from the community, including groups that benefit from it and those who have to cope with adverse consequences.

User-friendly contracts can be implemented in a variety of settings. Well-balanced marriage contracts are more likely to be successful in settings where it is already customary or legally required to have a formal marital agreement. Laws on taxes may make it more (or less) likely that an employment or rental contract will be set in a formal document (HiiL n.d.-h). 

Visual contracts may be needed more in settings where a significant portion of the population is illiterate. That said, many people – regardless of their literacy – prefer visuals over texts. Along with visuals, user-friendly contracts also incorporate plain language and avoid unnecessary clauses when drafting contracts. So far, visual contracts have been used to draft employment contracts, informed consent forms for medical procedures, and non-disclosure agreements. A combination of visual, plain language and simplified contracts have been developed for procurement contracts, sales contracts by General Electric in the United States and not-for-profit organisations like World Commerce and Contracting in the United Kingdom (HiiL 2022b). The potential for innovation in contracting is vast, particularly for long-term relationships, where regular evaluation and updating can be included in the service delivery model (Fenwich, Compagnucci and Haapio 2022).

In the policy brief on user-friendly contracts, we identify the critical success factors for organisations that provide user-friendly contracts involved in scaling and improving the quality of service delivery (HiiL 2022b). These include the following:

  • 1. Optimising the user-experience
  • 2. Showing and optimising the benefits for client companies
  • 3. Changing the mindset of lawyers and companies on contracting
  • 4. Developing a sustainable financial model
  • 5. A supportive regulatory environment

One-Stop Shop Dispute Resolution

Tribunals or platforms offer one-stop dispute resolution services for employment, family or other justice problems by connecting advice, negotiation, facilitation and adjudication in a seamless way. These services tend to be offered on multi-channels, that include online, telephone, chat-based and complimenting in-person services. They need to be mandatory for the defendant, or have another solution for the submission problem, in order to be effective and scalable (HiiL n.d.-i).

Tribunals and online platforms offering one-stop dispute resolution are part of the next generation of civil justice. They build on a major trend towards supplying ADR and mediation services in connection with adjudication. Examples of One Stop Shop Dispute Resolution include Civil Resolution Tribunal in Canada, Uitelkaar.nl in the Netherlands and SAMA in India. Online dispute resolution modules are now often operated by individual courts in the United States and elsewhere, with functionalities ranging from online filing to online mediation or online negotiation support.

One-stop shop procedures that integrate information, negotiation, mediation and adjudication support are mostly found in high-income countries. Ombudsman procedures also may include facilitation and adjudication in the form of (binding) recommendations (Wikipedia 2022). These are most commonly found in higher-income countries and their task is usually limited to the relationship of citizens with government agencies. In some countries, this ombudsman model is also applied to consumer complaints. England and Australia have numerous ombuds services for a range of consumer products.

If the government in a particular country has already developed a one-stop shop procedure for a different purpose (for example, for licences needed by companies), a one-stop shop procedure in courts is probably more likely to be accepted. In Islamic countries, the Qadi culture – where mediation and adjudication are more integrated and procedures do not assume representation by a lawyer –  can be helpful as well.

In a policy brief,  we identify the critical success factors for scaling One-Stop Shop Dispute Resolution Mechanisms, focusing on how public-private partnerships, outcome monitoring and specialisation can strengthen the case for this gamechanger category (HiiL 2022c). The success factors also include some of the following: 

  • 1. User-centred design of the specialised, one stop process
  • 2. Solving the ‘Submission Problem’: Getting the other party to the table
  • 3. Monitoring outcomes
  • 4. Form effective public-private partnerships
  • 5. Government stimulating initiatives: opening the regulatory doors
  • 6. Sustainable revenue model

Problem-Solving Courts

Problem-solving practices or courts that bring defendants, victims, lawyers, public defenders, community leaders and prosecutors together to effectively address criminal behaviour. Key features of a problem-solving treatment include rehabilitation, interdisciplinary collaboration, and accountability that have to be delivered to many people (HiiL n.d.-j).

Problem-solving courts are a collaborative criminal justice innovation focused on individualised treatment and accountability. We examples of this gamechanger category in the United States in the form of Mental Health Courts  and Drug Courts. The Truth and Reconciliation Commission in South Africa is another prominent example of bringing rehabilitation and restoration into focus in addressing criminal disputes. 

Problem solving criminal justice services operate with the understanding that punishment is a limited, and not always effective, response to harmful behaviour. Victims, perpetrators and the communities in which they live need more than a guilty verdict with a fine or a prison sentence. 

Problem-solving courts, dealing with common types of crime, have mostly been established in high-income countries such as the United States and Australia. Therapeutic justice and restorative practices on which problem-solving courts are based are used in different parts of the world, but the extent to which they are used largely depends on the approach of the judicial officers in power. In low-income countries, community justice services may deliver informal justice in a way that resembles the solutions delivered by the problem-solving courts.

Claiming services

Claiming services help people access vital public services quickly and at low cost. This delivery model is appropriate for social security benefits, proof of personal identity, healthcare benefits and similar outcomes. These services are supported online, combined with help desks or local in-person assistance (HiiL n.d.-k).

Online supported claiming has been finding traction in many countries. While many platforms focus on minor issues such as seeking compensation for defective consumer goods or compensation for flight delays, others focus on more serious issues. Examples include Haqdarshak in India, which provides access to government benefits to people living in rural areas through a combination of an online platform and local assistance, and JustFix.nyc in the United States which works on  tenant rights.

Such claiming platforms empower citizens who need vital (government) services. Claiming platforms help people to navigate bureaucratic procedures and thus make services more equally accessible. Their effectiveness depends on the maturity of the public administration and judiciary in a given country. Services that provide access to digital identity such as iVerify in Nigeria and Peleza in Kenya have proven to be particularly useful in lower-income countries. In the United States, Turbotax is a private service that helps people file their tax returns. In other countries, the government has set up user-friendly tax filing portals. The more public services are effectively delivered by the state, the less claiming platforms are needed. 

Claiming in high-income countries is now mostly supported online, matching high levels of access to the internet. In India, a sophisticated virtual platform — Haqdarshaq — is being taken door-to-door by local agents at the village level. Hybrid services are sometimes also needed for vulnerable groups in high-income countries (including migrants and illiterate or differently abled people). As part of these hybrid services, social workers and legal aid lawyers can deliver help offline. 

Prevention programmes

Prevention programmes or services that are supported by apps to ensure safety and security from violence, theft and fraud (HiiL n.d.-l).

Prevention programmes can take many different forms, from awareness campaigns, to programmes geared to legal empowerment, or to tools that can aid prevention or escalation of a legal issue. Yunga in Uganda and Ushahidi in Kenya are examples of programmes that help prevent legal disputes through the use of different technologies.

Prevention of theft and violence is becoming more widespread with the introduction of low-tech devices. WhatsApp groups and more sophisticated neighbourhood watch apps exist in different parts of the world. These programmes rely on neighbours coming together. Prevention programmes also rely on co-creating protection with the law enforcement agencies that will be alarmed or informed so they can take further action.

Online information and advice and follow-up services

People-centred online information and advice and follow-up services that help people solve justice problems in a step-by-step, fair and effective way that is consistent with their legal entitlements (HiiL n.d.-m).

Examples of this gamechanger category are many and are found in many countries. However, those that provide a clear value proposition to users beyond the provision of information are few. A2J Author in the United States and Mero Adhikar in Nepal can be considered good illustrations of step-by-step and clear follow-up services that can be integrated into online information platforms, aiding progress towards scale and sustainability.

Online information and advice services tend to be run by law firms, individuals, startups, non-profit organisations, or sometimes even the government as in the case of the website of Citizens Advice in the United Kingdom. These services are a helpful starting point in an individual’s justice journey. As we will see in later sections, however, web portals and mobile apps need substantial investment to become effective self-help guides that lead to higher rates of resolution. Successful examples of these are still rare, even in high-income countries. 

If evidence-based treatments and game-changing services are indeed needed, rigorous programming demands that the task force goes beyond incremental change. The following chapters show how a task force can lead strategically.

Fenwick, M., Corrales Compagnucci, M., & Haapio, H. (2022). Research Handbook on Contract Design. Edward Elgar Publishing Ltd.

Hendley, K. (2017). The Unsung Heroes of the Russian Judicial System: The-Justice-of-the- Peace Courts. The Journal of Eurasian Law, Duke University.

HiiL, (2020). Charging for justice: SDG 16.3 Trend Report 2020. 

HiiL, (2022a). Policy brief: Community justice services. HiiL. 

HiiL, (2022b). Policy brief: User-friendly Contracts. HiiL. 

HiiL, (2022c). Policy brief: One-stop shop dispute resolution. HiiL.

 HiiL, (n.d.-g). Community justice services. URL: https://dashboard.hiil.org/the-gamechangers/community-justice-services/. Accessed on July 31, 2022.

HiiL, (n.d.-h). User-friendly contracts. URL: https://dashboard.hiil.org/the-gamechangers/user-friendly-contracts-and-other-legal-documents/. Accessed on July 31, 2022. 

HiiL, (n.d.-i). Online information, advice and representation. URL: https://dashboard.hiil.org/the-gamechangers/online-information-advice-and-representation/. Accessed on July 31, 2022. 

HiiL, (n.d.-j). Problem-solving courts. URL: https://dashboard.hiil.org/problem-solving-courts-for-criminal-cases/. Accessed on July 31, 2022. 

HiiL, (n.d.-k). Claiming services helping people to access vital public services. URL: https://dashboard.hiil.org/claiming-services-helping-people-to-access-vital-public-services/. Accessed on July 31, 2022. 

HiiL, (n.d.-l). Prevention programmes or services. URL: https://dashboard.hiil.org/claiming-services-helping-people-to-access-vital-public-services/. Accessed on July 31, 2022. 

HiiL, (n.d.-m). Online information, advice and representation. URL: https://dashboard.hiil.org/the-gamechangers/online-information-advice-and-representation/. Accessed on July 21, 2022. 

Huge Domains, (n.d.). Legalfacile.com. URL: https://www.hugedomains.com/domain_profile.cfm?d=legalfacile.com. Accessed on July 27, 2022. 

Law Commission of India, (2017). Assessment of statutory frameworks of tribunals of India: Report number 272. Government of India. 

Ombudsman, (2022). Wikipedia. URL: https://en.wikipedia.org/wiki/Ombudsman. Accessed on August 1, 2022.

Republic of Kenya, (2012). Judiciary transformation framework. 

RMIT University, (2016). Pathways towards accountability: Mapping the journey of perpetrators of family violence- Phase 1. 

UNODC and UNDP, (2016). Global study on legal aid: Global report

Table of Contents

Summary
1. Making the case for people-centred justice
2. Owning people-centred justice
4. Strategy 1: data on problems, impact and outcomes
5. Strategy 2: promoting evidence-based practive
6. Strategy 3: strengthening and  scaling justice services
7. Strategy 4: improving the enabling environment
8. Strategy 5: strengthening the movement
Annex
Case Studies:
Problem-Solving Courts in the US
Casas De Justicia Colombia
Local Council Courts in Uganda
LegalZoom in the US
CrimeSync
The Justice Dialogue
Methodology
Authors
Posted on

2. Owning people-centred justice

2

2. Owning
people-centred justice

Trend Report 2021 – Delivering Justice / 2. Owning people-centred justice

The transition towards people-centred and evidence-based justice systems requires effective leadership. Why is that not emerging by itself and in response to the clear demand for better and more effective conflict resolution? In this chapter, we start with describing the lack of incentives and cooperation structures that require a task force to step in. We then describe how a task force can be formed and start to assume ownership. We detail how justice task forces are currently formed and resourced. We also argue that – given the scale of the challenge – a mission-oriented approach should be considered.

The impediments to taking ownership

Task  forces are needed and used in many places. They probably are brought into existence because current players are unlikely to be able to jointly create the necessary momentum. A number of impediments show up many times and task forces need to be aware of them.

The first impediment they will encounter is preference for the status quo. The justice sector is dominated by well-organised professionals. Bar associations, court leadership structures and ministries can easily be paralysed by stalemates between progressive groups and more cautious factions. The more conservative leaders in courts and law firms represent groups of  legally-trained professionals who fear losing control and their well-defined positions within the system as judge, attorney or prosecutor. These professionals have paid high fees for their training and invested many years in climbing the ladder in law firm partnerships or court hierarchies. They, and their representatives, have little incentives to invest in new ways of working. Improved conflict resolution also needs to be attractive for them.

In the worst cases, positions in the legal system are abused as a source of power. High-level judges and civil servants may have political loyalties that are stronger than their commitment to the rule of law and equal access to justice for all. Complicated legal procedures with many steps for serving documents or towards organising a court hearing are an opportunity for corruption.

Secondly, it is hard to locate ownership on the macro level. At present, legislatures, police, prosecution, providers of legal services, and courts act independently without any organisation taking ownership for effective resolution of conflicts or safeguarding fair relationships. Each supreme court, court of appeal, district court and legal aid boards has a narrowly defined task and role. Legislatures exist at local, provincial, national and supranational levels, without any organisation ensuring that their combined outputs are effective for people, safeguard the environment and allow businesses to flourish. In the United States or Nigeria, for example, each state has its own bar association and lawyers are likely to be organised at the level of major cities or counties. Such organisations or associations are mainly tasked with ensuring that lawyers act responsibly when they represent their clients. 

Other organisations exist primarily to correct the decisions of other justice sector organisations. Appeal courts second guess decisions of front line judges and their decisions can be corrected by the highest courts. Ombuds services correct government agencies. Disciplinary bodies correct lawyers. Prosecutors independently select the cases they receive from the police. Human rights committees and inspections provide another layer of checks and balances.

The third impediment is that the many independent and autonomous organisations in the legal sector lack the resources to implement evidence-based and people-centred strategies. Each organisation tends to be overburdened and focused on daily operations. Leadership is often busy with managing heated controversies on justice matters reported on by the media . Courts and other organisations in the sector have few strategists, small R&D units, and practically no budget for innovation. Strategic plans are generally focused on strengthening what they do, instead of reinventing how things can be done. 

Independence and lack of incentives are also problematic. Justice politicians and policy makers must respect the autonomy of justice sector organisations. They are generally hesitant to push courts, legal aid boards and other independent justice organisations to increase their overall performance. Economists have often pointed out that organisations in the justice sector have insufficient incentives to adapt and deliver the outcomes societies need, which explains why justice services often fail to meet demand. Being independent for good reasons, and often having a monopoly position, their accountability needs to be organised in a sophisticated way. A task force should understand the incentive structure of this sector and the ways that demand for justice meets supply.  

Demand for justice is much more diffuse than demand for water or better roads. People coping with conflict or crime do not know exactly the outcomes they want nor what is reasonable to expect. They need fair outcomes for injustices only a few times in their lives. This hardly makes them powerful consumers of justice services. 

When an individual needs a fair solution, the other party may push in a different direction. In order for justice to be achieved, the need for it must exist between people who are involved in an injustice or want to ensure their relationship will be fair and functional in the future. It may also happen in the shadow of an intervention by a  court or a government agency, who may have to intervene to impose a solution. The interaction between the parties originally involved in a conflict and third parties is complicated. Demand for justice and supply come together in a blur of emotions, conflict, debate, escalation and polarisation. Seen from the third party supplying justice services, demand for justice comes from two parties who often seem to go in opposite directions. People seeking access to justice are dependent on the third party and are likely to be in this situation for the first time. So they are unlikely to vocally demand effective treatment, good service and efficient solutions. 

The submission problem requires that the demand for fair solutions from two parties is channelled into a single request for an effective treatment delivered by an effective service model. On the supply side, the involvement of courts or other third parties with similar powers leads to some form of government monopoly. Access to people-centred justice therefore needs to be increased by strengthening the incentives of courts and other institutions to make use of society’s innovation potential.

Finally, coordination and cooperation requires trust between organisations in the justice sector. This is a fifth impediment. Created to provide checks and balances, and becoming more active when other organisations fail, justice sector organisations are likely to distrust their peers. Courts and legal aid organisations can sometimes be wary of a ministry of justice that controls their funding. Established justice institutions may distrust actors from the private sector, fearing their positions are threatened.

Bringing together a task force

Task forces are initiated in a variety of ways, inspired by the challenge and unaware of the full range of impediments that they will have to deal with. Depending on how the case for people-centred justice has been made, the initiators may come together as an independent initiative with private funding. Academics and leading judges are often involved in access to justice task forces. Bar associations may form groups to investigate innovation of legal services. NGOs may also play a role.

Most often, task forces are formed under the auspices of a Ministry of Justice, chief justice, attorney general, or chief prosecutor. In England and Wales, a government decision to digitalise the courts led to the establishment of a task force. We saw decisions to establish a task force being formalised as memoranda of understanding between a Ministry of Justice and an NGO or a UN organisation supplying the resources. In Sierra Leone, justice innovation has been linked to the national development strategy (Open Government Partnership and Republic of Sierra Leone, 2019). In countries where the rule of law is an international concern, a group of ambassadors or a UN organisation may suggest setting up a task force. 

These examples illustrate that task forces need some form of legitimacy and political space. Justice leaders need this to be able to participate in a private initiative. Ministers of Justice, chief justices, senior civil servants, or politicians specialising in justice matters are likely to be involved. They are the main players in the justice sector. Ministers can take initiatives that go beyond business as usual. Chief justices can reach out to leaders from the police, the prosecution, and the legal profession.

In most countries, a minister of justice has a coordinating role. He or she represents the justice sector in a government. Depending on the constitutional arrangements, a minister of justice may also be in charge of the budgeting processes. The justice department can provide resources for a task force. Often the ministry of justice will have a role in implementing programmes which will require new legislation that the ministry can initiate. Task forces, therefore, tend to seek cooperation with ministers or chief justices, and need to be aware of how these officials view the need for reform.

In our work, we have found that the composition of a task force needs careful consideration. Leaders from the judiciary, the prosecution and the ministry will probably participate and will need the informal backing of top-level executives in their organisations. Academics from various disciplines can contribute by strengthening the evidence-based approach that is needed. Ideally, participating academics will also have experience with implementation. Providers of innovative legal services need to be represented as well. Legal scholars often provide legitimacy and represent the current norms that can inspire but which also need to be challenged. Change agents with experience in transitions are needed. Practising lawyers, judges, or forensic therapists are aware of how services actually work – and how they create bottlenecks. Civil servants know about budgeting and the processes of changing rules. 

Task forces should ensure that the voices of citizens are heard. This can be achieved by including experienced users as members or by consulting them regularly in focus groups. User data should be readily available so that it can inform dialogue at critical junctions. Civil society leaders, who give voice to the demand for justice, can help sustain a task force’s momentum (see Chapter 9 ‘Strengthening the movement’). Founders of justice startups can inspire the group and bring  a “can do” entrepreneurial mentality, as well as expertise in standardising, scaling, and developing sustainable financial models. 

All these views must be integrated through facilitation, including step-by-step processes to guide the task force through different stages of programming. In advanced task forces, this is achieved by a team of facilitators experienced in the dynamics of the legal sector and in addressing major challenges in the delivery of public goods. Rather than having one chairperson overseeing the process, task forces today often have an informal group of co-leaders, with complementary tasks and skills, assisted by a team of facilitators. 

Navigating a special public sector

A task force operates in a justice ecosystem that requires skilful navigation. In Chapter 8, we describe in detail how the impediments to the transition towards evidence-based and people-centred justice can be dealt with. But the task force will need to deal with these impediments at an early stage. 

They may want to explore how ownership works, considering how the responsibility for fair solutions is organised as a series of checks and balances, rather than an integrated approach to delivering justice outcomes to people and society. It may help them to see how ownership for justice delivery is distributed between legislative bodies, courts, prosecution, police and the organised legal profession. Each of these institutions is bound by law, but acts independently. They are accountable to citizens in general via laws that prescribe what people are allowed to do and how institutions should make decisions.

Legal training and working on justice also results in a specific culture that a task force needs to navigate. The justice sector comprises vocal practitioners advocating solutions. Managers with legal training are accustomed to making decisions by carefully deliberating two alternatives. Intuitive ways of dealing with conflict, inspired by adversarial procedures, can poison the relationships between leaders in the sector. In some countries where HiiL works, we have seen vocal groups of legal professionals cultivate a hostile relationship with ministers or court leaders. Lawyers go on strike. Leaders who take up people-centred justice programming will need a unique set of skills, resources and resilience to navigate these challenges.

Justice leaders work within a complicated operational structure that needs to be managed, led and resourced. Public institutions (courts, prosecution, police) and private organisations (providers of legal services, informal justice providers) each have a role. The task force may want to explore how the sector resembles the health or education sector in that a multidisciplinary, cross-sectoral, public-private, inter-agency collaboration is needed to make progress.

The justice sector is also a special type of public service and that will be a next issue to consider. Justice is not delivered to one patient or student, but created between people. Practitioners facilitate this and may have to intervene to impose a solution. Government is expected to provide the third party view, but is also a litigant in many cases. Demand for and supply of justice must work together in an environment of strong emotions, conflict and debate that is normally absent from schools and hospitals. Communication is often disturbed by accusations, defensiveness or denial. Media make money by competing for the attention of viewers with stories on crime and conflict.

During the convening stage, the commitment of task force members will be tested and further developed. In the initial stakeholder dialogue in HiiL’s programmes, the task force members collectively work on developing personal relationships. Typically, a task force engages with data, revisits the case for setting up the group and develops a shared understanding of the urgency of the issues to be resolved. Each task force member learns about the motivations of the others and the work each member is already doing to achieve the task force’s mission. The task force members also learn about the ways their work will be facilitated during the months ahead. 

Envisioning equal access for all

Early on, the task force may want to exchange visions for the future. Having assessed the urgency of the problem being addressed, the members of the task force are now challenged to explore a way forward. If equal access to justice for all in personal injury cases is what they are looking for, how can this be achieved? What does justice for all for everyday crime in their country look like? Will all people ideally be served by the police, prosecutors, courts and lawyers? Outlining a typical justice journey through a pressing justice problem is a good starting point. This can provide a step-by-step overview of existing systems and the bottlenecks where innovative interventions may be most needed.Task force members are likely to have alternatives in mind. What are the outcomes that people with justice problems actually need? Which promising services can be scaled and how can they be brought into the legal system?

For justice leaders, making financial ends meet is a continuous challenge and it is helpful to bring in this element in the conversation early on. Instead of calling on outsiders to provide funding, task force members can take ownership of this challenge by thinking about possible revenue streams and rewards. If they do the math, they will probably see that free justice services for all are unlikely to be funded by taxpayers, even if politicians would support this as a matter of principle. Or can the new services they foresee be more cost effective, which will imply substantial increases in productivity and substantial cost savings? 

Even at this early stage of their work, task force members may want to explore sustainable funding models. These should include what people already pay for justice services on the market and what they pay as contributions for government services. How are other public services such as health care, education, water, electricity and internet funded – and what can be learned from these examples?

Task force members are likely to come in with different perceptions on what is most urgent. Some members will have a very practical attitude, zooming in immediately on the simplified procedures that are needed or the network of justices of the peace that needs to be established. Other task force members frustrated by the current way of working in their country are likely to find comfort in the knowledge that delivering people-centred justice is a common challenge internationally, and not a personal failing of individual leaders in their country. Being part of an international SDG 16 movement in which a consensus is emerging has proven to be stimulating for task forces in countries with poor reputations for rule of law.

Assuming many members of the task force are trained in law, they can also be invited to reflect on the rules that govern justice services. Which rules are helpful and essential? Which are barriers, difficult to observe or unimportant? A task force should think ahead. When new types of conflict resolution processes and new service delivery models are needed, a clear track for developing, testing and large scale implementation will be needed. What kind of regulation will be needed to support this? 

A mission approach to programming and execution

The task force has to reflect on programming methods that may be assumed by incoming task force members. In the justice sector, we often see that redesign is allocated to committees, which typically produce a report with recommendations that have to be implemented via legislation or in existing organisations. Committee reports, however, are unlikely to be implemented. We find it essential that experienced implementers participate in the design of the programme. This ensures that the programme is designed for execution. But how can the task force ensure that this happens?

When looking for a programming method, the task force may want to be guided by the mission-oriented approach to tackling grand societal challenges. The task force, looking at how it made the case for the transition to people-centred and evidence-based working in the justice sector, may decide that it is working on a challenge at that level. Mariana Mazzucato, who is the leading thinker of this approach, suggests we need to think bigger and mobilise our resources in a way that is as bold and inspirational as the moon landing – this time for the most ‘wicked’ social problems of our time (Mazzucato 2021). Her research shows that governments played an indispensable role in major technological breakthroughs in the 20th century and that they are best placed to facilitate such breakthroughs (Mazzucato 2013). The box below summarises advice on how a task force might operationalise the mission-oriented way of working.

The mission-oriented approach for programming

Mariana Mazzucato identified five criteria for selecting missions. They should: 

  • 1. Be bold, inspirational, with wide societal relevance
  • 2. Have a clear direction: targeted, measurable, and time-bound
  • 3. Be ambitious, but have realistic research and innovation actions
  • 4. Be cross-disciplinary, cross-sectoral and cross-actor innovation, and
  • 5. Drive multiple, bottom-up solutions (Mazzucato 2021).

Azoulay and colleagues (2019) describe how work on missions can be managed. Flexible and adaptive portfolio management is recommended. This can benefit from lessons provided by other innovation and funding agencies across the world, such as Yozma in Israel, Sitra in Finland, the Government Digital Service in the United Kingdom, or organisations like DARPA or ARPA-E in the United States. The defining characteristics of the DARPA model are:

  • 1. Organisational flexibility
  • a. Independence from branches of government.
  • b. Flat internal structure
  • c. Hiring outside standard government recruitment processes
  • a. Fixed term employment of directors and project managers
  • a. Flexible contracting mechanisms
  • 2. Bottom-up programme design
  • 3. Discretion in project choice
  • 4. Active project management

Azoulay and colleagues (2019) recommend that the ARPA model works best when a technical field is relatively unexplored and has pathways with great potential, but also some friction. This seems to be a good description of the R&D challenge in the justice sector. They also recommend:

  • Setting a goal and target for the overall programme and matching goals and targets for sub-programmes, with social and economic outcomes as goals and targets.
  • Sub-programme managers should be technical champions. They have to report on the goals and targets, but have discretion, relying on their expert judgement. They are not subject to peer-review, but informed by advice.
  • Sub-programme managers should work with “engineering teams.”
  • They have complementary and potentially competing approaches.

Harrell’s (2020) ‘A Civic Technologist’s Practice Guide’ has many additional recommendations, including how the task force work can be promoted:

  • Pitch work to executives in terms that people who are not experts in technology can understand.
  • Keep critiques of the existing system respectful and clearly anchored to a key value of public service or stewardship. Remove speculation about ulterior motives or intellectual capacity.

The mission approach, summarised in the box above is based on setting concrete goals and targets. It is about R&D efforts that are ambitious and realistic. It is appropriate where work should be done between disciplines, between silos and between actors. In the following chapter, we will suggest how this approach can be applied to the challenges we are facing.

Resourcing a people-centred justice programme

A task force needs adequate resources. Rigorous programme design requires a variety of methods and skills. Assuming the task force members are leaders with other jobs to execute, they will need support from an interdisciplinary team experienced in justice sector reform.  

An evidence-based approach to justice delivery can be attractive for national planners. An initial business case – quantifying programming costs and potential benefits as mentioned in Chapter 1 – will show the programme’s value. It will also indicate how the programme can be implemented. Budgets can become available through coalition agreements. Contributions from international donors (in lower-income countries) are more likely when a systematic approach to reform is taken.

Ministries, donors and social impact investors require accountability. They look for clear and consistently monitored outputs and outcomes. When the case for systematic programming is made, it should come with indicators to measure progress and impact.

Costing the work of task forces realistically is a next step. A typical budget may include the items described below. The programming phase, where the framework of the programme is designed, can last between 12 and 24 months. It typically leads to a number of outputs and one or more plans for each of the strategic R&D and innovation interventions. These plans need to be funded in a sustainable way and tested during the programme activities. They typically relate to implementing evidence-based working, investing in, and scaling one or more game-changing service delivery models and to the enabling environment. Depending on the scale of the ambition, a plan for building a broad movement can also be included.

Budgeting a people-centred justice programme:
Items for a systematic approach

Phase 1: Initiating

  • Making the case: a project plan
  • Convening: assembling the task force and supporting team

Phase 2: Owning and scoping

  • Stakeholder dialogues: building the team
  • Prioritising justice problems, setting goals, defining indicators, agreeing on targets, identifying initial pathways

Phase 3: Programming strategic interventions

  • Data collection: surveying the epidemiology of justice problems, resolution rates and outcomes
  • Ensuring outcomes: defining outcomes, developing monitoring tools and evidence-based guidelines, creating an implementation plan
  • Highlighting promising existing gamechangers (quick wins)
  • Acceleration: scouting potential gamechangers, upgrading implementation plan, working towards commitments from investors
  • Stakeholder dialogues: selecting gamechangers, creating a plan for the enabling environment (budgeting, regulation, procurement, political environment), securing investors for gamechangers
  • Innovation labs: renewing/designing gamechangers, standardising delivery, creating a financial plan, scaling strategy and investment plan, enhancing leadership and teams

Phase 4: Implementation by stakeholders supported by the task force

  • Collecting data and monitoring progress
  • Executing the plan for evidence-based working
  • Executing strategies to scale effective interventions
  • Maintaining and improving the enabling environment
  • A local unit provides continuous momentum and support for reform
  • Maintaining momentum and incentives: engaging with the public, developing international standards

Harrell, C. (2020). A Civic Technologist’s Practice Guide.

Mazzucato, M. (2013).The Entrepreneurial State: debunking public vs. private sector myths, 2013. Public Affairs.

Mazzucato, M. (2019). Governing missions in the EU, 2019: Independent expert report. European Commission.  

Mazzucato, M. (2021). Mission Economy, A moonshot guide to changing capitalism. Harper Collins. 

Muller, S. (2020). An emerging ministers of justice movement. Global dashboard- Blog covering international affairs and global risks.

Open Government Partnership and Republic of Sierra Leone, (2019). Third Action Plan: Sierra Leone Action Plan 2019-2021. 

Pierre Azoulay et al. (2019). Funding Breakthrough Research: Promises and Challenges of the “ARPA Model”, NBER/Innovation Policy and the Economy.

Table of Contents

Summary
1. Making the case for people-centred justice
3. Agenda-setting: pressing problems, goals and gamechangers
4. Strategy 1: data on problems, impact and outcomes
5. Strategy 2: promoting evidence-based practive
6. Strategy 3: strengthening and scaling justice services
7. Strategy 4: improving the enabling environment
8. Strategy 5: strengthening the movement
Annex
Case Studies:
Problem-Solving Courts in the US
Casas De Justicia Colombia
Local Council Courts in Uganda
LegalZoom in the US
CrimeSync
The Justice Dialogue
Methodology
Authors
Posted on

1. Making the case for people-centred justice

1

1. Making the case
for people-centred justice

Trend Report 2021 – Delivering Justice / 1. Making the case for people-centred justice

Reforming justice: moving up the policy agenda

Conflicts are an inevitable part of life. Preventing disputes, and managing them carefully, is the daily business of courts, government agencies, and political institutions. Professionals in conflict resolution are helping people who are mired in disputes about land, family conflicts, or work or environmental issues. The civil justice system provides formal procedures. Judges, lawyers, social workers, and other “justice practitioners” often resort to informal negotiation or mediation as well. 

Government officials need to make decisions on how best to use land or to allocate access to public services. They have to do this following the rules of administrative procedure, which is the formal framework for reconciling the needs of the people, the natural resources available on the planet, and the pursuit of profit by enterprises on the basis of a nation’s laws. Within this framework, or as an alternative approach, they use many types of informal processes for participation and achieving consensus (Bernstein and Rodriguez 2022). 

In case of violence, theft or fraud, police and prosecutors apply the rules of criminal procedure. This is the primary way to protect victims, sanction perpetrators, and restore harmony in the community. Like their colleagues in government agencies and the practice of civil justice, these justice practitioners often turn to informal or alternative ways to enable people to cope with the consequences of crime. 

Often, justice practitioners struggle to support people who seek access to justice. Formal procedures tend to be slow and bureaucratic. Informal processes are not well organised. What happens during negotiations in the corridors of power is not transparent. Government agencies and business owners complain about tedious administrative procedures which makes it hard for them to reconcile environmental challenges and economic progress. All pillars of the justice system tend to be overburdened. Only a minority of victims receive adequate intervention from criminal justice systems. Those causing harm are seldom treated in the ways that are most likely to prevent future crime or help victims to recover. Too often, only those with power, money, or extreme determination can handle the complexity of justice procedures, thereby opening the doors to inequality and corruption. 

Survey data on justice needs are widely available and can support the potential for a rigorous R&D effort to improve justice systems. The World Justice Project, HiiL, and other research groups have collected data on justice problems, impact, and justice journeys in more than 100 countries (World Justice Project n.d.-b). The general trend is that few people rely on formal justice institutions when they have to cope with conflicts or crimes. The justice gap has now been quantified and is considerable in almost every major country surveyed (World Justice Project 2019). The unmet demand for justice is striking.

In sum, justice systems need to do a better job of serving their people and justice practitioners need better tools to solve conflicts. Leaders across the world acknowledge the need to upgrade legal systems. During the 2010s, the World Bank financed justice sector reforms through multi-million dollar loan agreements in Azerbaijan, Kazakhstan, Kenya, Morocco and Peru, to name just a few (World Bank n.d.). The European Commission and United Nations Development Programme (UNDP) have supported reforms in civil and criminal justice (European Commission n.d.; UNDP n.d.). The United Nations Office on Drugs and Crime (UNODC) coordinated efforts to improve standards in criminal justice (UNODC 2016). UN Habitat developed methods to prevent and resolve problems related to land and housing (UN Habitat n.d.; UN Habitat 1999).

In Canada and elsewhere, chief justices support task forces and think tanks on access to justice (The Canadian Bar Association 2021). Many countries in Africa and Latin America have justice sector development plans (Republic of Uganda n.d.; Republic of Kenya n.d.; Government of Brazil 2021). Ministers of justice in Argentina, France, Portugal, and the UAE have established groups in their justice ministries to lead innovation efforts, each of which has introduced ambitious new justice services.

Political agendas vary but many reform efforts go in similar directions. Reforms span the globe and have been initiated under a broad variety of democratic and autocratic regimes. Canada is leading online-supported adjudication (HiiL 2022c). Argentina and France have invested in houses of justice (Government of Argentina n.d.; French Republic n.d.). The Supreme People’s Court organised efforts to scale up and professionalise the Chinese court system, encouraging mediation as well as rule-based adjudication. Russia set up a countrywide system of informal local courts tasked to resolve disputes (Hendley 2017). In January 2017, outgoing US President Barack Obama published an article in Harvard Law Journal outlining a strategy for criminal justice reform. In a rare instance of bipartisan cooperation in the United States, his successor Donald Trump signed the First Step Act, which aims to improve the rehabilitation of offenders and the protection of victims (Wikipedia 2022). Governments in Italy, Germany, and the Netherlands promise justice system reforms in coalition agreements. Political parties may have different priorities – being tough on crime; providing access to justice for the disadvantaged; securing economic growth based on private initiative; preserving the environment; or serving the police and the legal profession as powerful constituencies – but even so, improvements can be agreed upon.

Each of the 47 member countries of the Council of Europe have committees and groups that implement reforms in the judiciary, the prosecution, and the legal aid system. The Organisation of American States and USAID have supported justice reform initiatives throughout Latin America (Organisation of American States n.d.). To address large-scale injustices, countries have set up truth and reconciliation commissions or special tribunals that are tasked with finding solutions for injustices and preventing them from recurring.

Some examples of task forces with ambitious strategies are Michigan Justice for All Commission, Supreme People’s Court China, Systems of Civil Justice Task Force of Canada, Access to Justice Task Force of Australia, the Justice Reform Commission of Peru. Find more examples of task forces from across the globe that work on access to justice on the National Centre for State Courts website. It includes the Access to Justice Committee of the Law Council of Australia, Access to Justice Asia, Access to Justice in China, United Nations Development Project Tajikistan, and the Japan Federation of Bar Associations. aims to make the civil justice system more accessible, effective and sustainable by supporting citizen-centred initiatives.

People-centred and evidence-based reform

Not all reform efforts have been successful, however. Several have been temporary and many law reform commissions have lost their momentum. Programmes have been criticised for spending too much on legislation, on the construction of courthouses, or on police training. Reform agendas contain long lists of findings and recommendations, but are not always specific on how these can be prioritised or implemented. Thousands of local pilot programmes fail to scale. Task force leadership is often dominated by people trained as lawyers, which is reflected in reports calling for changes in legislation and budget increases for legal institutions.

Upgrading justice systems is increasingly seen as a shared challenge. Peaceful and inclusive societies, with access to justice for all and effective, accountable and inclusive institutions, are a UN Sustainable Development Goal. Reports by the European Commission for the Efficiency of Justice (CEPEJ) – the Council of Europe organisation that collects justice system data – show considerable differences in the way justice systems are organised, funded and scaled (CEPEJ 2020). The European Union offers the following best practices on justice reform and cooperation with partner countries.

EU best practices on justice reform

  • Legal empowerment: People, especially vulnerable groups, need to be aware of their rights and the services at their disposal.
  • Equal access to justice: We need to ensure that everyone, irrespective of where they are located, has access to justice. This means focusing not only on institution building in capital cities, but also on supporting and reforming regional and local institutions, as the most vulnerable people usually live in remote rural areas.
  • Institutional accountability: Focus on oversight mechanisms to enhance transparency and hold justice institutions accountable for their commitment to change.
  • Research-based actions: Comprehensive research helps to understand local dynamics. Applying a scientific method is key to developing indicators that measure the results and impact of interventions on people’s lives.
  • System-wide perspective:When analysing and reforming the justice sector, we need to consider all aspects, including civil, criminal, public, and international law, as well as traditional justice mechanisms.
  • Service-delivery approach:Justice sector support needs to move to a service delivery approach. The constraints that impair justice delivery need to be addressed.
  • Results-focused approach: Each intervention needs to be implemented with realistic objectives and expected results, taking into account the specific context and whether it is resistant or favourable to change. A suitably long timeframe needs to be set in order to ensure the success of an intervention.
  • Balancing different types of actions: Financial support or investment in equipment or facilities is not enough in itself, but needs to be combined with technical assistance to help local actors build their capacities. Political dialogue throughout the entire reform process is also essential to ensure that local actors are on board and take ownership of the reform process.
  • Human rights and gender equality: Human rights and gender equality must be protected and promoted throughout the reform process.
  • Donor coordination: Donor duplication should be avoided and cooperation between low-income countries should be promoted (South South cooperation).

The emerging consensus is that reform should be people-centred and evidence-based. The OECD, the Open Government Partnership, Pathfinders for Justice, The Elders, the European Union, and USAID are among those leading the efforts to develop people-centred justice approaches (OECD 2021; Open Government Partnership 2019; The Elders, n.d.; European Commission n.d.; USAID 2022). They are supported by an increasing number of country governments forming the Justice Action Coalition (Justice Action Coalition 2022). Another main player is the International Institute for Democracy and Electoral Assistance (IDEA), the intergovernmental organisation that works on developing inclusive and accountable institutions (Government of Canada 2021). IDLO and UNDP, the leading international legal development cooperation organisations, have developed people-centred rule of law strategies, informed by specialists in law and development from ODI and IDRC (IDLO 2020; UNDP 2021; Manuel and Manuel 2021; IDRC 2022).

The policy briefs and strategies produced by these experts have a number of common elements. People-centred legal and justice services should be based on and respond to an empirical understanding of the legal needs and legal capabilities of those who require or seek assistance (OECD 2021). People-centred justice should be available across the justice chain and provided in a range of formats, programmes, and services types. Prevention of injustice, proactivity, and timeliness are key in this paradigm. The system should provide seamless referrals and integrated services through collaboration between legal, justice, and other service providers. People should be able to access all the services they need to solve the legal and related non-legal aspects of their problems. Regardless of the entry point for assistance, they should receive appropriate treatment for their problem. People-centred justice services should be continually improved upon through evaluation, evidence-based learning, and the development and sharing of best practices. 

A new paradigm requiring a major transition

This approach is different from how legal systems have traditionally been reformed. Until now, even the most effective task forces have relied on piecemeal reforms that current legal institutions allow for. At present, politicians must propose laws and procedures, hoping they will be accepted by legislative bodies and that justice practitioners will implement them in individual cases. Judges can decide cases by applying, and sometimes tweaking, the law in order to make it more responsive. Reformers can hope that lawyers turn to processes that are more likely to lead to fair and sustainable settlements. They can advocate that litigation becomes more focused on effective solutions for conflicts and less costly. People may become more effective in helping themselves or their fellow citizens in a variety of informal justice processes that are sometimes half-formalised, such as mediation or ombuds procedures. Local leaders experiment with participatory democracy or with new forms of decision-making on major projects in their community. NGOs distribute information on people’s rights and offer to help victims. 

Progress in governance and effective conflict resolution systems is thus dependent on individuals trying to introduce change. They do so in a setting of broad constitutional checks and balances, but in which there is no mechanism to ensure systematic progress towards better outcomes. Institutional accountability as described by the EU in its policy document is also lacking. 

In this report, we explore the answer to this much bigger reform challenge. We explore how a next generation of task forces could launch and manage the systematic R&D and innovation needed to implement people-centred justice in a country based on the recommendations of the many policy briefs and strategies that are building the paradigm. For instance, reform agendas need to have both state-of-the-art ways to measure outputs, outcomes and impact of the most pressing justice problems and a results-based approach with clear objectives. Neither is commonly found in the justice sector. Research and an evidence-based working approach when interacting with parties in a justice problem should be combined with systematic improvements in the delivery and scaling of justice services. The service delivery approach requires coordination between broad national programmes and local institutions. Traditional justice mechanisms can work alongside formal courts. Political dialogue – in which high-level participants take ownership of and accountability for justice institutions –  in combination with regulatory and financial regimes that stimulate and support continuous innovation are also needed.

Making the case for systematic programming: speaking to the heart

Systematic programming for people-centred justice starts with making the case. Although the reasons for setting up a task force may be evident, a strong initial proposal is needed to ensure it receives adequate resources. The following suggestions may help to inform this proposal.

Justice task forces are often established in situations of broadly shared indignation. A particular group is victimised or a high profile crime has been committed. A task force is formed to rectify the injustice. Justice speaks to hearts and minds. Both can be addressed. Injustice is easy to spot, emotionally. Anger has been called the emotion of injustice. Compassion and outrage are quickly triggered. 

Justice, and the ways to achieve it, are emotionally more complex than injustice. Justice comes from being heard, feeling respected, obtaining remedies, and sharing resources fairly (Sabbagh and Schmitt 2016). Assuming responsibility for one’s role in an injustice, forgiving someone who caused harm, preventing future harm or exacting retribution, these are moral choices that can be confusing (Carlsmith and Robinson 2002). Most police fiction and media reports have the shape of a whodunit, thereby simplifying or overlooking this complexity. The storyline of justice ends when the good guys find out what happened and make an arrest. This is when the complex task of delivering justice really begins. Detectives don’t work on rehabilitation. You don’t see them working with youth in poor neighbourhoods to prevent crimes. 

A task force will therefore often be initiated in a setting where the media call for retribution. We think a task force will be better positioned if it can connect to the feelings of people involved in everyday disputes and to society’s collective awareness that at least a degree of social harmony must be restored. In a world full of discord and polarisation, the need to agree on a peaceful way forward can be emphasised. 

A task force may also want to connect to concrete situations that people are familiar with: How would the country look if all land conflicts were resolved quickly and fairly? What would the effect on work life be if all workers had a sound and balanced contract, and were able to access their benefits via a user-friendly platform? How would people feel if conflicts that inevitably arise were resolved by a one-stop court procedure, leading to settlement agreements tailored to individual needs? What if domestic violence was prevented and treated in an evidence-based way, delivering the outcomes women need in order to feel safe? 

In our projects, we encounter many reasons to consider people-centred justice programming. Change-makers and their funders mention the following qualitative reasons to support justice programmes: less polarisation; reduced need for migration; human rights protection; protection of the vulnerable; prevention of civil unrest; crime prevention through improved conflict resolution; and greater government accountability for public services. 

Quantifying the burden of injustice and how justice contributes to GDP

The rational, quantitative business case for people-centred justice can be built on data that are now widely available. Quantifying the annual burden of particular types of justice problems can help make the case for investment. This can be calculated in a similar way as the burden of disease. The number of new problems per year in a country can be derived from legal needs surveys. Impact can be quantified using data on self-reported severity, consequences (for example, violence, loss of income, stress-related illness), and money and time spent on resolution. The cost of state resources used to address these justice problems should be factored in as well.

This is how such a calculation might look. In a typical city or state with a population of 8 million, 1 million people on average will experience a pressing justice problem annually. Of these, 500,000 problems will have a major negative impact. If the average negative impact of a land problem in an African country of 8 million people is estimated to be $1000, and the resolution rate is 30%, the burden of land injustice in this country can be quantified at approximately $90 million per year (see the numbers in the infographic, based on HiiL 2018).

Quantifying the potential contribution of justice to GDP is more complicated, but possible. Resolving a land justice problem may increase the productivity of a farmer who is able to cultivate formerly disputed land. Solutions that address the consequences of deadly crimes can contribute to the recovery of survivors and the reintegration of perpetrators into the economy. When people are relieved of an existential threat to their livelihood and can manage their relationships through more effective contracts, their contribution to the economy can grow. Justice also sits well with the movement towards broader concepts than those focussed on GDP; greater fairness will improve well-being.

The growing body of literature has revealed a variety of ways in which programmes have quantified the size of the social and economic benefits of justice system interventions (Moore and Farrow 2019; Weston 2022).  For instance, the Dutch Ministry of Justice and HiiL asked Ecorys, an economic advisory agency, to calculate the economic and social benefits of achieving 80% resolution rates to justice problems in the Netherlands. We defined this as 80% of justice problems being resolved either by agreement or by a decision in a way viewed as sufficiently fair by the person who experienced the problem. The calculation  was based on an extrapolation from three justice problems: separation, work conflict, and access to social security/services. 

Ecorys estimated a 0.15% contribution to GDP of increasing the resolution rate to 80% (Ecorys 2021). This excludes export opportunities for justice services and improvements in the national investment climate through better access to justice. $1 successfully invested is projected to lead to $4 saved on transaction costs (the resources spent on attempting resolution) and a $14 gain in productivity (the increased productivity if people involved can devote their attention to other activities then trying to cope with the impact of conflict). On top of this contribution to GDP in the narrow economic sense, the calculation yielded contributions to well-being: a $51 gain in quality of life and $10 saved in public services costs (including the costs of health care). 

There are also the economic and environmental gains of faster, more effective procedures to resolve conflicts regarding allocation of land to various types of use. The interests of current populations, of future housing needs, transportation requirements, water management, nature, and entrepreneurial activities need to be reconciled. In theory, the costs and benefits of projects can be assessed, with overall beneficial projects approved, provided there are adequate measures protecting the interests at risk, or that there are adequate compensatory measures for those interests that cannot be fully protected. In practice, this decision making is often slow and can be frustrated by litigation tactics of a small group. People who are affected face considerable bureaucratic barriers when they try to be heard. Comparative administrative law, which should lead to the systematic assessment of what works best when organising these processes, is at an early stage of describing different systems (Pünder 2013; Asimow 2015). Initial exploratory research should be followed by systematic research and development, and broad implementation of innovations.

The calculations above do not provide final answers. The economic modelling of the benefits of conflict resolution and accessible justice is at an early stage. It can be improved with better data collection and continued testing of assumptions. The negative effects of unresolved justice problems have to be quantified in more detail,  allowing for individual coping strategies. Some people move on from their problems, while others feel resentment and report more significant consequences; for example, violence, damage to relationships, loss of time and money, stress, and other health issues.

Failing to create credible pathways to peaceful, inclusive societies is a high-risk gamble

When justice institutions fail to give people a voice and provide remedies, this contributes to feelings of frustration and neglect among communities. Governments around the world rightly see this as a threat to stability. Ministries of justice experience this as a variety of challenges that became apparent during a ministerial meeting in 2020. 

A ministerial meeting on people-centred justice

In October 2020, ministers of justice representing 20 countries gathered for a meeting co-hosted by Pathfinders for Justice, the OECD, and the Open Government Partnership to share their experiences in dealing with the COVID-19 crisis (Muller 2020). The ministers sought to ensure the safety of justice practitioners in their respective ministries. They shared concerns about budgets and how they worked hard to maintain the proper functioning of existing procedures. 

COVID-19 outbreaks in prisons, for example, forced them to take tough decisions.Some of the ministers alluded to a desire for deeper innovation. They sensed there was little to be gained from  locking up additional people. They looked beyond their own ministry for cooperation with civil society. All ministers shared experiences about moving justice services and delivery online. The Belgian minister proposed a ‘giant leap’ – to build a single digital platform through which citizens could access all justice services. Latvia is working on this already. The private sector can help the public sector bring these digital solutions to scale, drawing inspiration from the way innovation and scale has been achieved in the health sector. 

Frustration with complex procedures has made ‘simplifying procedures’ an increasingly popular mantra. Ministers of Justice are also increasingly focused on broadening, decentralising, and expanding legal help through collaboration with civil society organisations. 

The COVID-19 crisis also revealed a lack of preparedness on the part of ministries to adapt their services. Much was learned on how to implement changes quickly. Procedural rules were changed in a matter of days. Because ministers had to do all of this during the early months of 2020, the value of sharing international best practices became more apparent. More generally, ministers are looking for solutions that have proved to be effective elsewhere.

The underlying challenges and patterns suggest systemic risks. Conflict prevention and resolution are what societies hope to achieve by promoting the rule of law. Worldwide trends suggest that not taking this task as seriously as other sustainable development goals is a high-risk gamble. In 2021, only two of the world’s 25 most populous countries saw improvements in the World Justice Project Rule of Law Index: Germany and the Democratic Republic of Congo (World Justice Project 2021). According to the V-Dem Institute (2022), only 4% of countries are on track to improving democracy. V-Dem uses a broad, people-centred definition of democracy that includes electoral democracy, rule of law and protection of rights, participatory democracy, and deliberative democracy. The results are an indicator of societies’ conflict resolution capabilities. 

V-Dem’s data show not only a strong trend towards more autocratic regimes, but also how difficult it is for countries to move towards greater participation, dialogue, inclusiveness, and accountability. When democratic governments cannot deliver on peace, inclusivity and access to justice, elected autocrats provide the only alternative for voters. The world urgently needs credible pathways towards people-centred, inclusive, and well-functioning justice systems. Rigorous R&D and innovation can guide a gradual transition towards systems of governance that can resolve conflicts in a peaceful, inclusive, accessible, and equal manner. 

Assessing the current system

Another way to make the case for people-centred justice is to  assess how justice sector institutions are perceived by the population and justice practitioners.

In our 2018 Trend Report ‘Understanding Justice Needs: The elephant in the courtroom’, we suggested a low-cost and simple way to diagnose the condition of the current system. It can be applied to a national justice system, to a single institution, or to the supply chain of one type of justice problem.

9 indicators for assessing urgency

  • 1. Backlogs: Are they decreasing and is this decrease sustainable?
  • 2. Capacity: How many problems do formal institutions solve compared to the number of pressing justice problems?
  • 3. Prioritisation: Are institutions helping the people who need it most or does successful access depend on money, stamina and other resources?
  • 4. Motivation: Is the motivation of front line justice practitioners increasing or decreasing?
  • 5. Workload per case: Are adversarial processes increasing or decreasing the workload over time?
  • 6. Digitisation: Are online and IT systems increasing the number of cases handled and/or improving outcomes for citizens?
  • 7. Confidence: To what extent do justice leaders believe in how the work is done and try to attract more cases to help people more effectively?
  • 8. Support: What percentage of citizens is willing to support the courts and justice sector institutions, and believe the system will solve their problems?
  • 9. Funding: To what extent can donors and Ministries of Finance be convinced to invest in better justice services?

In India, Tata Trust (2020) sponsored an assessment of the capabilities of the justice institutions in each state. The indicators, which were collected in 2019, were not positive and were summarised in a strongly-worded message: 

Sadly, taken collectively the data paints a grim picture of justice being inaccessible to most. Findings highlight that each individual subsystem is starved for budgets, manpower and infrastructure; no state is fully compliant with standards it has set for itself; gender and diversity targets are improving only sluggishly, and are not likely to be met for decades; and governments are content to create ad hoc and patchwork remedies to cure deeply embedded systemic failures. Inevitably, the burden of all this falls on the public.

Signals of system stress may help convince individual leaders in the justice sector to take action. Whether a negative assessment motivates funders or outsiders to help, on the other hand, remains to be seen. A negative appraisal, and a sense of crisis, may also lead to denial or resignation. In 1974, the US government created the Legal Services Corporation to address the nationwide access to justice crisi. Numerous task forces have since used this language. If a crisis continues for half a century, is it really a crisis? Or is it a disease with no cure in sight?  

A more positive case – one that quantifies how solutions can contribute to well-being – is likely to be more effective. Pathways out of a crisis – and an explanation of how a task force can identify and facilitate them – need to be provided. At present,  newly established task forces can benefit from a growing body of knowledge on how to position the need for justice reform.

Asimow, M. (2015). Five Models of Administrative Adjudication. American Journal of Comparative Law, 63(1), pp.3-31. 

Bernstein, Anya and Rodriguez, Cristina. (2022). The Accountable Bureaucrat (March 26, 2022). Yale Law Journal, Vol. 132. 

Carlsmith, K. M., Darley, J. M., & Robinson, P. H. (2002). Why do we punish? Deterrence and just deserts as motives for punishment. Journal of Personality and Social Psychology, 83(2), 284–299.

CEPEJ, (2020). European judicial systems: CEPEJ evaluation report. 

Clara Sabbagh and Manfred Schmitt, (2016). Handbook of Social Justice Theory and Research. 

Ecorys.(2021). MKBA innovatieve rechtsvoorzieningen. 

European Commission, (n.d.). Justice and the rule of law. URL: https://international-partnerships.ec.europa.eu/policies/peace-and-governance/justice-and-rule-law_en. Accessed on July 27, 2022. 

European Commission, (n.d.). Justice and the rule of law. URL:https://international-partnerships.ec.europa.eu/policies/peace-and-governance/justice-and-rule-law_en#best-practices. Accessed on 28th July 2022. 

First Step Act. Wikipedia (2022). URL: https://en.wikipedia.org/wiki/First_Step_Act. Accessed on August 8, 2022. 

French Republic, (n.d.). What are the houses of justice? URL: https://www.vie-publique.fr/fiches/268688-justice-de-proximite-les-maisons-de-justice-et-du-droit-mjd. Accessed on August 14, 2022. 

Government of Argentina, (n.d.). Access to justice centres. URL: https://www.argentina.gob.ar/justicia/afianzar/caj. As accessed on August 14, 2022. 

Government of Brazil, (2021). National plan for public security and social defence 2021-2030. 

Government of Canada, (2021). International IDEA – Joint statement on democracy. URL: https://www.canada.ca/en/global-affairs/news/2021/12/international-idea—joint-statement-on-democracy.html. Accessed on July 28, 2022. 

Hendley, K. (2017). The Unsung Heroes of the Russian Judicial System: The-Justice-of-the- Peace Courts. The Journal of Eurasian Law, Duke University.

Hermann Pünder, (2013). German administrative procedure in a comparative perspective: Observations on the path to a transnational ius commune proceduralis in administrative law. International Journal of Constitutional Law, 11(4), pp.940-961. 

HiiL, (2018). Understanding justice needs: The elephant in the courtroom. 

HiiL, (2018). Understanding justice needs: The elephant in the courtroom.                    

HiiL, (2022c). Policy brief: One-stop shop dispute resolution. HiiL.

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Table of Contents

Summary
2. Owning people-centred justice
3. Agenda-setting: pressing problems, goals and gamechangers
4. Strategy 1: data on problems, impact and outcomes
5. Strategy 2: promoting evidence-based practice
6. Strategy 3: strengthening and scaling justice services
7. Strategy 4: improving the enabling environment
8. Strategy 5: strengthening the movement
Annex
Case Studies:
Problem-Solving Courts in the US
Casas De Justicia Colombia
Local Council Courts in Uganda
LegalZoom in the US
CrimeSync
The Justice Dialogue
Methodology
Authors

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