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Amsterdam Interdisciplinary Centre for Law and Health

Amsterdam Interdisciplinary Centre for Law and Health. NAJ Conference Melbourne 4-7 May 2010 Promoting restorative justice and non-adversial justice in personal injury claims resolution . Key messages of presentation:.

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Amsterdam Interdisciplinary Centre for Law and Health

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  1. Amsterdam Interdisciplinary Centre for Law and Health NAJ Conference Melbourne 4-7 May 2010 Promoting restorative justice and non-adversial justice in personal injury claims resolution

  2. Key messages of presentation: • Identification of legal obligation of debtor to obligation to pay compensation, to promote restorative justice(relates to the law of damages in general) • Identification of symbolic therapeutic or ant-therapeutic messageinherent in procedures and processes (relates to the RJ dimension of procedure in general) • Illustration of adversarial elements enforcing NAJ and RJ(relates to the promotion of NAJ and RJ in general)

  3. The Netherlands • Pop. 16,5 mil. • Land 33,883 km2 • 487 inh. per km2 - most densely populated country in Europe • Hybrid system of PI compensation • Level of protection of stat. system quite limited in various ways • Tort system always amounts to a very substantive addition of compensation; • and often constitutes the only source of compensation (e.g. non-employees, other loss than loss of income)

  4. 100 90 80 70 60 50 Unsettled cases (%) 40 30 20 10 0 0 1 2 3 4 5 >5 Process duration (years) PI cases in The Netherlands About 50.000 new cases each year, only a few percent are brought before the courts About 60% is settled within one year, 80% within two years, and 95% within three years. About 2,5% remains unsettled for more than five years.

  5. Psychological aspects PI claims settlement process • Secondary victimisation (social psychology) • Secondary gain (epidemiology) • Procedural Justice (PJ) (social psychology)

  6. Psychological aspects PI claims settlement process • Secondary victimisation (social psychology) • Secondary gain (epidemiology) • Procedural Justice (PJ) (social psychology) see paper of Genevieve Grant: state of the art identification of methodological flaws in existing empirical evidence of adverse health outcomes of PI compensation processes

  7. Susan Daicoff: adversarial elements to remain part of our toolbox

  8. Susan Daicoff: adversarial elements to remain part of our toolbox => in response to appeal of A-G Hulls: label of ‘NAJ’ will turn out to be to narrow

  9. Discrepancy in PI claims settlement process The virtually exclusive focus on financial compensation The great importance victims attach to needs of a non- pecuniary nature

  10. Discrepancy in PI claims settlement process This discrepancy is all the more problematic because of the following: Failure to fulfilnon-pecuniary needs Impedes recovery Promotes Secondary victimisation Secondary gain Fulfilment ofnon-pecuniary needs Promotes Emotional recoveryProcedural justice Promotes recovery And this while recovery should take precedence over compensation!

  11. Discrepancy in PI claims settlement process “A compensation regime that does not take reasonable steps to address the therapeutic needs of the claimants is one that cannot achieve its professed restitutionary goals. As is made clear in this study, money alone cannot heal.” Feldthusen et al. 2000

  12. Merits of conclusion on ‘positive potential’ • ‘Yes we can’=> inspiration for improvement within existing tort system • Reform agenda => determinants of PJ part of the objectives of reform • Identification of a legal obligation to reform => recovery takes precedence over compensation • Full realisation of potential? => probably not very realistic • Not: real indication that other systems (no-fault, first-party ins.) would have less ‘potential’ for promoting PJ=> no empirical proof (and not plausible – e.g. more manageability)

  13. Merits of conclusion on ‘positive potential’ • ‘Yes we can’=> inspiration for improvement within existing tort system • Reform agenda => determinants of PJ part of the objectives of reform • Identification of a legal obligation to reform => recovery takes precedence over compensation • Full realisation of potential? => probably not very realistic • Not: real indication that other systems (no-fault, first-party ins.) would have less ‘potential’ for promoting PJ=> no empirical proof (and not plausible – e.g. more manageability)

  14. Provisional frame of reference for reform: pos & neg aspects PI process

  15. Possible operationalisation of legal duty to put recovery first: promoting emotional recovery • Empirical research: suffering a wrong disrupts moral and emotional balance between wrongdoer (WD) and victim (V) • V experiences moral and emotional injustice • Need for ‘emotional recovery’ as well as financial recovery • V needs WD (and his agents – e.g. insurer) to take responsibility for accident and its consequences

  16. The symbolic message inherent in present PI resolution procedure Properties of PI claims settlement process: • V has to make claim, take initiative, suffer the burden of proof • Insurer appears to be able to allow himself a passive attitude => carries across implicit message that not wrongdoer/insurer but V is responsible for solving problem of damage caused • WD doesn’t pay compensation himself, generally no direct communication between WD and V, WD often not even aware of consequences for V => V experiences that WD does not take responsibility • Out of court settlement – no decision by judge => no formal establishment of moral responsibility of WD for accident • Also no symbolic acknowledgement of moral responsibility of WD by insurer • ‘Taboo trade-off’: PI cannot really be compensated by money

  17. Two ways to promote emotional recovery ‘Acknowledgement’ by WD’s agents Apologies by wrongdoer

  18. Two (of several) ways to promote emotional recovery e.g. Stephen Monterosso’s suggestion of RJ conferences in Work. Comp. ‘Acknowledgement’ by WD’s agents Apologies by wrongdoer

  19. Two (of several) ways to promote emotional recovery e.g. Stephen Monterosso’s suggestion of RJ conferences in Work. Comp. e.g. Robyn Carroll & Normann Witzleb: plea for more appropriate private remedies ‘Acknowledgement’ by WD’s agents Apologies by wrongdoer

  20. Effective elements of apology by wrongdoer • Acknowledgment of responsibility for wrongdoing and its conseqenses • Expression of compassion • Undertaking of action: compensation and prevention

  21. Effective elements of ‘acknowledgement’ by wrongdoer’s agents: • Acknowledgment of responsibility for wrongdoing and its conseqenses • Expression of compassion • Undertaking of action: compensation and prevention

  22. The symbolic message inherent in new PI resolution procedure • Insurer/agent must take and keep initiative in resolution process • Behaviour of insurer/agent should carry across implicit message that insurer/agent and not victim is the ‘owner’ of the problem that mistake was made and damage was caused, which now has to be managed, assessed and compensated • Resolution process should favour determinants of Procedural Justice: • Information • Involvement • Voice • Consultation • Respect

  23. Promoting personal contact • Pilot by several Dutch administrative bodies concerning procedure of handling administrative complaints and petitions • Personnel to take up direct contact with citizen as soon as possible by means of telephone call, before putting complaint / petition further through formal administrative procedure • Results of this rather modest intervention: • 40 to 60% of complaints / petitions were informally settled in one way or another and withdrawn from formal procedure • Eventually some departments could be scaled down in size to such extent that retraining program for personnel had to be initiated

  24. The dispute resolution process continuum (After King et al. 2009) Negotiation Conciliation Litigation Mediation Arbitration more adversarial less adversarial

  25. Ad hoc limited judicial intervention in out of court settlement Negotiation Conciliation Litigation Mediation Arbitration The judge ‘cutting knots’ and steering settlement process

  26. Ad hoc limited judicial intervention in out of court settlement Negotiation Conciliation Litigation Mediation Arbitration NAJ and AJ are only opposing paradigms. Both are means to an end: giving people the justice they need. Elements of one can and should enforce the other.

  27. Ad hoc limited judicial intervention in out of court settlement Negotiation Conciliation Litigation Mediation Arbitration NAJ and AJ are only opposing paradigms. Both are means to an end: giving people the justice they need. Elements of one can and should enforce the other. Beware of risk of burdening mainstreaming of NAJ with disregard of merits of AJ

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