Professor Dame Hazel Genn

Report
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
First principles
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
Fundamentals of Access
• Aware of rights, entitlement, obligations
• [Equipped to avoid legal problems?]
• Aware of procedures for
resolution/redress
• Access resolution/redress systems
• Participate in resolution/redress
process to achieve just outcome
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’?
What is the problem?
Canada
UK
Netherlands
Bulgaria
USA
Japan
Hong Kong
Australia
1999-2008
Legal needs studies around the world
New Zeala
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?
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
Country
1st most common
2nd most common
3rd most common
PJ England 1999
Consumer
Money/debt
Property
PJ Scotland 2001
Money
Consumer
Landlord
Netherlands 2004
Consumer
Employment
Money
Canada 2006
Consumer
Debt
Employment
Japan 2006
Injury
Neighbours
Consumer
NZ 2006
Consumer
Money/Debt
Benefits
CSJS 2006
Consumer
Neighbours
Benefits
Bulgaria 2007
Consumer
Neighbours
Benefits
Hong Kong 2008
Consumer
Prop Damage
Employment
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
Civil and Social Justice Survey 2009
Legal 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
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
So what?
•
•
•
•
Cynicism about legal rights and alienation
Social cost of unresolved problems
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
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 negligible for all problems
– Public not asking for it and advisers not advising
clients to use it
Value of results
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 antidepressants or do they need to sort out the
problem with their landlord?
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)
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?
How should we be meeting
access to justice and dispute
resolution needs?
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!
Australia Access to Justice
Strategic Framework
• 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?
Triage
Proportionate/Appropriate
Dispute Resolution/Redress
How does triage work
in legal services?
• 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?
Triage = Sorting and allocating
resources on the basis of need or
likely benefit
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?
RESPONSIVE AND ACCESSIBLE CIVIL JUSTICE SYSTEM
Advice, information,
representation
One-Stop shops
Early advice and information
Multi-disciplinary services
Triage
Early intervention
Problem Analysis
Redress/resolution options
‘Lump it’
Settlement
Direct negotiation
Represented negotiation and
settlement
Assisted settlement
(mediation)
Internal Review
Authoritative Determination
Inquisitorial
(Ombudsman/complaints)
Simplified interventionist
Standard Court Processes
•
•
•
•
•
•
•
•
•
Authoritative adjudication
Adversarial procedures
Merits based
Substantive justice
Coercive powers
Public processes
Costly
Slow
Complicated
Ombudsmen
•
•
•
•
•
•
•
Authoritative recommendations
Inquisitorial
Merits based
Accessible
Cheap
Not public processes
No coercive powers
Tribunals
•
•
•
•
•
•
•
•
•
•
Authoritative specialist adjudication
Interventionist procedures
Merits based
Informal
Accessible
Cheap
Quick
Public processes
Coercive powers
Can be deceptive for unrepresented
Mediation
•
•
•
•
•
•
•
•
•
Settlement
Accessible
Informal
Good opportunities for participation
Problem solving not merits based
Flexible
Private
Cost unknown
Unregulated
Arbitration
•
•
•
•
•
•
•
•
Authoritative binding determination
Specialist arbitrator
Merits based
Informal
Accessible
Private and confidential
Expensive
Few opportunities for review
Internal review/
complaints mechanisms
•
•
•
•
•
•
•
•
Authoritative recommendations
Inquisitorial processes
Accessible
Cheap
Independence?
Private
Lengthy
Effectiveness?
Time for some clear thinking
about objectives
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
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
First principles
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
Fundamentals of Access
• Aware of rights, entitlement, obligations
• [Equipped to avoid legal problems?]
• Aware of procedures for
resolution/redress
• Access resolution/redress systems
• Participate in resolution/redress
process to achieve just outcome
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’?
What is the problem?
Canada
UK
Netherlands
Bulgaria
USA
Japan
Hong Kong
Australia
1999-2008
Legal needs studies around the world
New Zeala
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?
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
Country
1st most common
2nd most common
3rd most common
PJ England 1999
Consumer
Money/debt
Property
PJ Scotland 2001
Money
Consumer
Landlord
Netherlands 2004
Consumer
Employment
Money
Canada 2006
Consumer
Debt
Employment
Japan 2006
Injury
Neighbours
Consumer
NZ 2006
Consumer
Money/Debt
Benefits
CSJS 2006
Consumer
Neighbours
Benefits
Bulgaria 2007
Consumer
Neighbours
Benefits
Hong Kong 2008
Consumer
Prop Damage
Employment
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
Civil and Social Justice Survey 2009
Legal 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
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
So what?
•
•
•
•
Cynicism about legal rights and alienation
Social cost of unresolved problems
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
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 negligible for all problems
– Public not asking for it and advisers not advising
clients to use it
Value of results
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 antidepressants or do they need to sort out the
problem with their landlord?
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)
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?
How should we be meeting
access to justice and dispute
resolution needs?
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!
Australia Access to Justice
Strategic Framework
• 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?
Triage
Proportionate/Appropriate
Dispute Resolution/Redress
How does triage work
in legal services?
• 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?
Triage = Sorting and allocating
resources on the basis of need or
likely benefit
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?
RESPONSIVE AND ACCESSIBLE CIVIL JUSTICE SYSTEM
Advice, information,
representation
One-Stop shops
Early advice and information
Multi-disciplinary services
Triage
Early intervention
Problem Analysis
Redress/resolution options
‘Lump it’
Settlement
Direct negotiation
Represented negotiation and
settlement
Assisted settlement
(mediation)
Internal Review
Authoritative Determination
Inquisitorial
(Ombudsman/complaints)
Simplified interventionist
Standard Court Processes
•
•
•
•
•
•
•
•
•
Authoritative adjudication
Adversarial procedures
Merits based
Substantive justice
Coercive powers
Public processes
Costly
Slow
Complicated
Ombudsmen
•
•
•
•
•
•
•
Authoritative recommendations
Inquisitorial
Merits based
Accessible
Cheap
Not public processes
No coercive powers
Tribunals
•
•
•
•
•
•
•
•
•
•
Authoritative specialist adjudication
Interventionist procedures
Merits based
Informal
Accessible
Cheap
Quick
Public processes
Coercive powers
Can be deceptive for unrepresented
Mediation
•
•
•
•
•
•
•
•
•
Settlement
Accessible
Informal
Good opportunities for participation
Problem solving not merits based
Flexible
Private
Cost unknown
Unregulated
Arbitration
•
•
•
•
•
•
•
•
Authoritative binding determination
Specialist arbitrator
Merits based
Informal
Accessible
Private and confidential
Expensive
Few opportunities for review
Internal review/
complaints mechanisms
•
•
•
•
•
•
•
•
Authoritative recommendations
Inquisitorial processes
Accessible
Cheap
Independence?
Private
Lengthy
Effectiveness?
Time for some clear thinking
about objectives
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

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