Create an Enabling Environment for 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. 

Problem

opportunity

best practices

make a start

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-centered 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 an advancement towards such procedures that work for the parties involved. A justice system that enables people-centered justice should stimulate courts to experiment with and practice “what works”.

Best practices of
innovative procedures

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. [link to outcomes page when ready].

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/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 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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