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.
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?
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?
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 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.
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.
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.
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.
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.
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.
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.
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 in mediation techniques is available everywhere in the world. This is less true for adjudication practices.
Consultation and support by peers
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.
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