Presentation is loading. Please wait.

Presentation is loading. Please wait.

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

Similar presentations


Presentation on theme: "Back to Basics in Dispute Resolution: What do people want and what should we be offering? Professor Dame Hazel Genn UCL Faculty of Laws."— Presentation transcript:

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

3 Back to Basics Resolution/Redress First principles Access to justice What we know about citizens’ needs? How could we meet those needs

4 First principles

5 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

6 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

7 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’?

8 What is the problem?

9 Japan Hong Kong Australia New Zealand USA Canada UK Netherlands Bulgaria Legal needs studies around the world

10 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?

11 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

12 Country1st most common2 nd most common3 rd most common PJ England 1999ConsumerMoney/debtProperty PJ Scotland 2001MoneyConsumerLandlord Netherlands 2004ConsumerEmploymentMoney Canada 2006ConsumerDebtEmployment Japan 2006InjuryNeighboursConsumer NZ 2006ConsumerMoney/DebtBenefits CSJS 2006ConsumerNeighboursBenefits Bulgaria 2007ConsumerNeighboursBenefits Hong Kong 2008ConsumerProp DamageEmployment

13 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

14 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

15 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

16 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

17 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

18 Value of results

19 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?

20 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)

21 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?

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

23 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!

24 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?

25 Triage Proportionate/Appropriate Dispute Resolution/Redress

26 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

27 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?

28 Advice, information, representation One-Stop shops Early advice and information Multi-disciplinary services Triage Early intervention Problem Analysis Identifying appropriate path RESPONSIVE AND ACCESSIBLE CIVIL JUSTICE SYSTEM 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)

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

30 Ombudsmen Authoritative recommendations Inquisitorial Merits based Accessible Cheap Not public processes No coercive powers

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

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

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

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

35 Time for some clear thinking about objectives

36 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

37

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

39

40 Back to Basics Resolution/Redress First principles Access to justice What we know about citizens’ needs? How could we meet those needs

41 First principles

42 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

43 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

44 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’?

45 What is the problem?

46 Japan Hong Kong Australia New Zealand USA Canada UK Netherlands Bulgaria Legal needs studies around the world

47 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?

48 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

49 Country1st most common2 nd most common3 rd most common PJ England 1999ConsumerMoney/debtProperty PJ Scotland 2001MoneyConsumerLandlord Netherlands 2004ConsumerEmploymentMoney Canada 2006ConsumerDebtEmployment Japan 2006InjuryNeighboursConsumer NZ 2006ConsumerMoney/DebtBenefits CSJS 2006ConsumerNeighboursBenefits Bulgaria 2007ConsumerNeighboursBenefits Hong Kong 2008ConsumerProp DamageEmployment

50 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

51 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

52 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

53 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

54 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

55 Value of results

56 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?

57 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)

58 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?

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

60 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!

61 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?

62 Triage Proportionate/Appropriate Dispute Resolution/Redress

63 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

64 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?

65 Advice, information, representation One-Stop shops Early advice and information Multi-disciplinary services Triage Early intervention Problem Analysis Identifying appropriate path RESPONSIVE AND ACCESSIBLE CIVIL JUSTICE SYSTEM 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)

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

67 Ombudsmen Authoritative recommendations Inquisitorial Merits based Accessible Cheap Not public processes No coercive powers

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

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

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

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

72 Time for some clear thinking about objectives

73 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

74


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

Similar presentations


Ads by Google