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Back to Basics in Dispute Resolution: What do people want and what should we be offering?

Back to Basics in Dispute Resolution: What do people want and what should we be offering?. Professor Dame Hazel Genn UCL Faculty of Laws. Back to Basics Resolution/Redress. First principles Access to justice What we know about citizens’ needs? How could we meet those needs.

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Back to Basics in Dispute Resolution: What do people want and what should we be offering?

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  1. Back to Basics in Dispute Resolution:What do people want and what should we be offering? Professor Dame Hazel Genn UCL Faculty of Laws

  2. Back to BasicsResolution/Redress • First principles • Access to justice • What we know about citizens’ needs? • How could we meet those needs

  3. First principles

  4. What purpose does the justice system serve? • Machinery for operating the rule of law • Individual • Enforcement of legal rights • Dispute resolution • Social • Supports social order and cohesion • Supports economic activity • Develops legal principles and gives effect to legislation

  5. Fundamentals of Access • Aware of rights, entitlement, obligations • [Equipped to avoid legal problems?] • Aware of procedures for resolution/redress • Accessresolution/redress systems • Participate in resolution/redress process to achieve just outcome

  6. Access to justice as a social good • Ability to participate in public redress systems is a measure of the health democracies • Critical question = not ‘what rights do we give or what obligations do we impose’? • But ‘what opportunities do we provide for the public to make good their entitlements’?

  7. What is the problem?

  8. Netherlands UK Canada Bulgaria Japan USA Hong Kong Australia 1999-2008 Legal needs studies around the world New Zealand

  9. What did they explore? • Patterns and impact of justiciable problems • What types, who has them, what impact? • Public responses and resolution strategies • What do people do and with what outcome? • Advice-seeking behaviour • Where do people go for help and what determines choices? • Use of formal dispute resolution processes • Who invokes the legal system and for which kinds of problems?

  10. Most common types of legal problems • Consumer - faulty goods and services/building work • Neighbours • Money/debt • Employment • Welfare benefits • Accidental injury • Landlord and tenant/housing • Divorce and children • Discrimination

  11. What have we learned? • High proportion suffer one or more justiciable problems • Problems often occur in clusters • Cascade effect – one triggers others • Can have serious impact on lives • Family break-up • Unemployment and loss of income • Ill-health or disability • Link between unresolved problems and health, crime

  12. Civil and Social Justice Survey 2009Legal problems and mental health • 27% of civil law problems lead to stress-related ill-health • Stress-related ill health most common for losing home, mortgage/rent arrears domestic violence, and relationship breakdown • Over half need to get medical help for stress • Of those 90% go to GP,10% to counsellor, and 5% to a psychiatric nurse

  13. Common findings • Low income groups suffer more problems and are less likely to do anything about the problem • Sense of powerlessness/helplessness • Resolution strategy related to problem type • Problems for which action most likely to be taken – family, consumer, property • Advice-seeking related to problem type • Problems for which legal advice most likely to be sought – divorce, children, property, • Advice sought from wide range of more or less appropriate sources – people don’t know where to go – referral fatigue • Significant unmet need for accessible, relevant sources of information and advice

  14. So what? • Cynicism about legal rights and alienation • Social cost of unresolvedproblems • Escalation of small to large problems • Cost in public expenditure on physical and mental health, welfare benefits, social housing costs • The downstream cost of unresolved problems is a powerful argument for promoting access to justice and protecting civil legal aid

  15. Involvement in legal processes • Small minority involved in legal processes • Strongly related to problem type • Divorce and separation matters - greatest use • Neighbour, consumer, employment, money problems - least use • Use of ADR negligiblefor all problems • Public not asking for it and advisers not advising clients to use it

  16. Value of results

  17. Need for joined-up thinking and action? • Dawning recognition that justice system has to clean up the messes that other departments make • Poor decision-making on benefits – cost to justice system • Social housing policy may lead to cost on justice system • That unresolved justiciable problems lead to pressure on other services and budgets • Does that person need expensive anti-depressants or do they need to sort out the problem with their landlord?

  18. Smarter approach to advice • Emphasis on avoidance and early advice • Concept of cascades and trigger events helps to focus thinking around early intervention • Making advice more accessible • When can people go for advice? • Where are they likely to go for help? • Renewed interest in Legal Empowerment/ Legal Capability • Recognizing “unnecessary” helplessness • Facilitating self-help • Knowledge and skills-development • Development of integrated approach to services (e.g. legal and health services)

  19. Barrier at top of the cliff or ambulance at the bottom? • Advice and education have protective and restorative potential • It is both the barrier at the top of the cliff (information, advice, PLE) • And the ambulance at the bottom of the cliff (advice and representation) How ambitious or limited are our access to justice objectives?

  20. How should we be meeting access to justice and dispute resolution needs?

  21. What do citizens want? • To be saved • Dispute resolution processes that are • Easy to use • Cheap • Quick (within reason) • Authoritative • Fair • To get on with their lives!

  22. Principles Accessibility Appropriateness Equity Efficiency Effectiveness Methodology Information Early intervention Triage Pathway to fair outcomes (although everything becomes ADR) Proportionate costs Resilience – skills development Addressing the real issues (inclusion) Holistic approach? Australia Access to Justice Strategic Framework

  23. TriageProportionate/AppropriateDispute Resolution/Redress

  24. How does triage workin legal services? Triage = Sorting and allocating resources on the basis of need or likely benefit • Not everyone enters the justice system in the same place • Responsibility on everyone to direct people to appropriate path • Triage should be undertaken by advisers, courts, tribunals • Build in opportunities for early resolution and settlement • But what are the factors that determine the correct path?

  25. Identifying an appropriate path • What is the nature of the “fuss”? • What are the variables? • Parties – citizen v citizen or citizen v state? • Resources – personal skills/financial • Balance of power – even/uneven • Subject matter – rights or interests? • Complexity – legal/factual • Depth of conflict • Objectives • Legal problem or social problem? • Issue of public importance? • Precedent value? • Which dispute resolution/redress process is most suitable? Who decides?

  26. RESPONSIVE AND ACCESSIBLE CIVIL JUSTICE SYSTEM Advice, information, representation One-Stop shops Early advice and information Multi-disciplinary services Triage Early intervention Problem Analysis Identifying appropriate path Redress/resolution options ‘Lump it’ Settlement Direct negotiation Represented negotiation and settlement Assisted settlement (mediation) Internal Review Authoritative Determination Inquisitorial (Ombudsman/complaints) Simplified interventionist (tribunal/small claims) Simplified adversarial (fast track/employment tribs/arbitration) Complex adversarial (multi-track/appellate)

  27. Standard Court Processes • Authoritative adjudication • Adversarial procedures • Merits based • Substantive justice • Coercive powers • Public processes • Costly • Slow • Complicated

  28. Ombudsmen • Authoritative recommendations • Inquisitorial • Merits based • Accessible • Cheap • Not public processes • No coercive powers

  29. Tribunals • Authoritative specialist adjudication • Interventionist procedures • Merits based • Informal • Accessible • Cheap • Quick • Public processes • Coercive powers • Can be deceptive for unrepresented

  30. Mediation • Settlement • Accessible • Informal • Good opportunities for participation • Problem solving not merits based • Flexible • Private • Cost unknown • Unregulated

  31. Arbitration • Authoritative binding determination • Specialist arbitrator • Merits based • Informal • Accessible • Private and confidential • Expensive • Few opportunities for review

  32. Internal review/complaints mechanisms • Authoritative recommendations • Inquisitorial processes • Accessible • Cheap • Independence? • Private • Lengthy • Effectiveness?

  33. Time for some clear thinking about objectives

  34. What are appropriate ambitions for civil justice? • The civil justice system can’t do everything • Need to stand back and do what is possible • Advisers can’t do everything • Can’t solve complex problems of disadvantage, health etc. • Clarity in thinking about objectives and ambitions • Australians want greater “resilience” and justice in every day interactions • Moral integrity

  35. Back to Basics in Dispute Resolution:What do people want and what should we be offering? Professor Dame Hazel Genn UCL Faculty of Laws

  36. Back to BasicsResolution/Redress • First principles • Access to justice • What we know about citizens’ needs? • How could we meet those needs

  37. First principles

  38. What purpose does the justice system serve? • Machinery for operating the rule of law • Individual • Enforcement of legal rights • Dispute resolution • Social • Supports social order and cohesion • Supports economic activity • Develops legal principles and gives effect to legislation

  39. Fundamentals of Access • Aware of rights, entitlement, obligations • [Equipped to avoid legal problems?] • Aware of procedures for resolution/redress • Accessresolution/redress systems • Participate in resolution/redress process to achieve just outcome

  40. Access to justice as a social good • Ability to participate in public redress systems is a measure of the health democracies • Critical question = not ‘what rights do we give or what obligations do we impose’? • But ‘what opportunities do we provide for the public to make good their entitlements’?

  41. What is the problem?

  42. Netherlands UK Canada Bulgaria Japan USA Hong Kong Australia 1999-2008 Legal needs studies around the world New Zealand

  43. What did they explore? • Patterns and impact of justiciable problems • What types, who has them, what impact? • Public responses and resolution strategies • What do people do and with what outcome? • Advice-seeking behaviour • Where do people go for help and what determines choices? • Use of formal dispute resolution processes • Who invokes the legal system and for which kinds of problems?

  44. Most common types of legal problems • Consumer - faulty goods and services/building work • Neighbours • Money/debt • Employment • Welfare benefits • Accidental injury • Landlord and tenant/housing • Divorce and children • Discrimination

  45. What have we learned? • High proportion suffer one or more justiciable problems • Problems often occur in clusters • Cascade effect – one triggers others • Can have serious impact on lives • Family break-up • Unemployment and loss of income • Ill-health or disability • Link between unresolved problems and health, crime

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