Home Enabling Environment Create an enabling regulatory framework via rules of procedure

Create an enabling regulatory framework via rules of procedure

Problem: In many countries, detailed rules for adjudication procedures exist for courts and similar adjudication bodies. As a justice leader, you might feel that your actions are limited by rigid procedural rules which force people into adversarial dispute resolution methods and repel innovation. Most likely you are frustrated by procedures that create delays, antagonism, confusion and escalating costs.

USE best practices on innovative rules of procedure

Outcome-focused justice procedures essential

Continuously test and implement new procedures

2013 Trend report p. 37: “According to the Framework for Court Excellence, [court] procedures should fit clients’ needs, attract a high level of user satisfaction, be affordable and accessible and (thus) instil public trust and confidence. Just as great car companies sell great cars, great courts distinguish themselves by delivering excellent procedures. Courts let people file claims, present their case, have a dialogue during a court hearing and move towards a final decision that works. The way they organise this interaction is key to their success. Somehow, they have to make moves from poor, mediocre or good procedures to really excellent ones; free from delay, corruption and unnecessary costs; full of solutions for the problems presented; loaded with recognition for each different moral perspective.”

Such rules of procedure describe in minute detail what litigants and courts have to do in order to reach a legal outcome. Roles in formal procedures are primarily reserved for legal professionals. Rules and procedures of adjudication are usually difficult to change due to regulation, habit, professional or organisational culture. Rigid procedures impede innovations and the arrival of new service delivery models such as one-stop shop procedures or problem-solving courts from entering the legal sector. Procedures that were deemed as means towards due process grew into self-serving ends.

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Opportunity to create an enabling environment for people-centred justice through better procedures

Innovations in justice provide options that justice leaders like you can use to deliver better experiences and better outcomes. Several studies shed light on how court rules and procedures impact innovation. Ideally, new types of courts, court interventions and court procedures would be proposed, tested and implemented continuously. Such procedures are based on knowledge about what works. Their key value is the promise to provide fair and effective solutions for citizens.

Below, a justice leader can read about procedural innovations that make advancement towards such procedures that work for the parties involved. A justice system that enables people-centred justice should stimulate courts to experiment with and practice “what works”.

Best practices of
innovative procedures

British Columbia Civil Resolution Tribunal - CRT is Canada’s first online tribunal. The Civil Resolution Tribunal Act (2012) has jurisdiction over vehicle accident disputes, condominium disputes, small claims up to $5 000 and several other categories of disputes. The CRT reaches decisions through a simple and user-friendly process consisting of intake, negotiation and facilitation, review of evidence and decision. Its decisions are binding and enforceable as acts of courts. Through an online procedure, CRT provides accessible, speedy, economical, informal and flexible procedures while withholding the principles of law and fairness. In its work CRT recognises the importance of reaching an agreement and preserving the relationships between parties.
The American Arbitration Association conducts mediation and binding arbitration of employment disputes. Mediation and arbitration based on due process rules of procedures resolve employment disputes more efficiently and expeditiously compared to court proceedings. Fair arbitration clauses ensure that the most appropriate procedure is applied to resolve the matter. Examples of employment arbitration procedures can also be seen in other countries such as the UK and Singapore.

Court Referred Mediation (CRM) is the practice to engage mediator/s to resolve a dispute which was submitted for adjudication. If the mediation is successful and the parties reach an agreement, the mediator refers the case back to the court for a court decree to pronounce the settlement. Procedural rules might make court referred mediation mandatory or might impose an obligation on the court to advise the parties to attempt mediated resolution. Examples of CRM can be seen in The Philippines, Australia, India and many other countries.
Settlement negotiations are a process to help the parties formulate their interests and expectations so they can reach win-win agreements outside of adversarial procedures. Lawyers, legal aid providers, mediators, and arbitrators provide services that lead to settlement through negotiation. Examples of such services here, here and here. In 2002, ABA issued Ethical Guidelines for Settlement Negotiations.
Online dispute resolution procedures - Dutch justice innovation Uit Elkaar uses technology and dispute resolution knowledge to help couples who want to divorce. An elaborate procedure supports the parties and assists them to focus on their and their children's interests while seeking a solution. Following the specifics of the case, the technology can involve additional resources such as experts and procedures. The platform assists in selecting one or more mediators and lawyers according to the needs of the parties.

What is needed to innovate?

But how does a justice leader innovate a procedure in such a way that it solves people’s problems? You must start from outcomes that people want from dispute resolution.

Focus on outcomes
(Outcome-focused justice procedures)

It is time to redesign justice procedures. Innovation of justice services focuses on people and achieving outcomes that allow people to continue with their lives. Current procedures and innovative solutions should be evaluated against outcome-based criteria. What could such a system look like, based on this research and case studies?

Define outcome-based criteria

Dispute resolution models need to be evaluated. The criteria for evaluation should focus on the effects of the intervention. Does the proposed way of treating a justice problem lead to prevention or fair and effective solutions? To the outcomes that people need? Problem-solving? Closer to needs and emotions? Linking ADR and informal justice? Supporting self-represented litigants? Without negative side-effects?

Define outcome-based criteria

Incorporate justice values

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

Incorporate justice values

Deal with the most pressing justice problems

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

Deal with the most pressing justice problems

Certify procedures based on evidence

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

Certify procedures based on evidence

Focus on activities rather than status

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

Focus on activities rather than status

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Create an enabling regulatory framework via rules of procedure

USE best practices on innovative rules of procedure

Outcome-focused justice procedures essential

Continuously test and implement new procedures

Opportunity to create an enabling environment for people-centred justice through better procedures

Best practices of
innovative procedures

What is needed to innovate?

Focus on outcomes
(Outcome-focused justice procedures)

Find out more about

Create an enabling financial framework through new sources of revenue and investments

Create an enabling regulatory framework via public private partnerships and creative sourcing of justice services

Create an enabling environment by forming a committed coalition

Justice Dashboard

Contact us

Follow us

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Justice Dashboard

Create an enabling regulatory framework via rules of procedure

USE best practices on innovative rules of procedure

Outcome-focused justice procedures essential

Continuously test and implement new procedures

Opportunity to create an enabling environment for people-centred justice through better procedures

Best practices of innovative procedures

What is needed to innovate?

Focus on outcomes (Outcome-focused justice procedures)

Find out more about

Create an enabling financial framework through new sources of revenue and investments

Create an enabling regulatory framework via public private partnerships and creative sourcing of justice services

Create an enabling environment by forming a committed coalition

Justice Dashboard

Contact us

Follow us

Navigation

Best practices of
innovative procedures

Focus on outcomes
(Outcome-focused justice procedures)