8. Strategy 5:
strengthening the movement

Trend Report 2021 – Delivering Justice / 8. Strategy 5: strengthening the movement

The task force must ensure momentum is sustained. When considering this fifth strategic intervention, we can assume that the task force has been assembled and progress has been made towards evidence-based working. A sizable minority of justice practitioners has committed to this. Learning communities regularly discuss what works. Together with the disputants they assist, these justice practitioners monitor progress on outcomes for land governance disputes or personal injury cases. Resolution rates are improving. A project plan for scaling and enhancing at least one game-changing justice service is being implemented. The service reaches new groups of users every week. Task force members have improved the enabling environment, so the gamechanger is well regulated and subsidies to serve the poorest have been secured. Future game-changing justice services can thrive in this environment.

A task force should anticipate this advanced stage. Maintaining momentum and building the movement for people-centred justice is key. The task force must now ensure the justice sector continues on the path towards higher resolution rates and more effective prevention. In this chapter, we revisit the impediments towards rigorous R&D and innovation in the justice sector discussed in chapter 2. These impediments explain HiiL’s conviction that relying on piecemeal reform is unrealistic and that a strong mission-oriented approach is needed to overcome them. Leaders in the justice system are likely to bring about the necessary change in collaboration with other relevant stakeholders. A broad movement is required, one that is supported by national planning agencies, the high prioritisation of justice by national and local governments, and international cooperation towards making legal systems more responsive.

Engage with the tools and networks of national planning

In order to achieve the mission, the task force needs support from outside the justice sector. Given the incentive structure, a task force will have to continuously assume that internal motivation to change, ownership and resources will have to be supplemented by players outside the justice sector. The transition from rule- and interpretation-based delivery of justice towards evidence-based and people-centred justice is unlikely to be achieved by justice practitioners in the current setting which will take time to change.

As described in Chapter 2, national planning agencies and coalition governments will continuously have to be involved in improved conflict resolution and people-centred justice reform, integrating it in their agendas. This is also the level where resources can be allocated and the mission-oriented approach can be pursued. Executing this mission requires flexible and adaptive portfolio management. The evidence-based approach would be applied to a variety of justice problems and some problem types will see more progress than others. It will be hard to predict which service delivery model will scale first and which will follow more slowly. During the implementation period, the task force must also safeguard its independence from everyday politics. This can be done if the task force focuses on R&D and innovation capabilities and incentives.

In order to achieve this, the task force will have to ensure that people-centred justice is integrated in the processes and language of long term national planning. Effective conflict resolution and prevention represents an enormous economic value, promotes social cohesion and increases government effectiveness. National planners, interdisciplinary government think tanks and coalition governments are natural partners for the task force. They can help the task force to overcome the impediments discussed in Chapter 2 (preference for the status quo, lack of ownership on the macro level, lack of resources, lack of incentives and trust between organisations). The box below is an illustration of how justice leaders are currently experiencing these challenges.

A Justice Dialogue

To understand the enablers and impediments to rigorous R&D and people-centred innovation, we organised a Justice Dialogue with high-level participants from Nigeria, Kenya, Uganda, the Netherlands and the United States. All participants had significant expertise on issues at the forefront of applying people-centred justice approaches.

The dialogue focused on developing an integrated approach to people-centred justice and the five main emerging investments of people-centred justice programming: data, evidence-based practice, game-changing justice services, the enabling environment, and engagement and accountability.

Based on this premise, the dialogue created an interactive conversation on implementing and scaling the people-centred approach in the justice space. In particular, it focused on the following questions for panellists to share their thoughts and experiences:

Why is it important to invest in systematically improving dispute-resolution systems in a people-centred way?
What are the enablers and impediments for the change-making justice practitioners to make people-centred justice happen?
How can we ensure the broad uptake of innovations in the justice space? What are some of the best practices?

The Dialogue aimed to elicit input from participants on the following main hypotheses – which serve as the enablers and impediments to people-centred justice:

Time and resources to develop a programme must be available.
Learning more about the contents of the programme is essential.
The right financial, performance and ethical incentives must be in place to bring about change.
There must be a certain degree of trust and cooperation between independent justice sector organisations.

Stakeholders shared their thoughts and experiences on these hypotheses in smaller breakout sessions. Key ideas from these sessions were then shared with the larger group. In addition to endorsing the enablers and impediments mentioned above, the following are the key takeaways from the Dialogue:

A more detailed account of the Justice Dialogue can be read here.

In order to build the bridge towards national planning and interdisciplinary government think tanks the task force needs to speak their language. Programme activities have to be captured in logframes with theories of change, outputs, outcomes and impacts. The impediments to working people-centred and evidence-based need to be translated into the analytical tools of economists. The box below is an example of how the different barriers to change look like if they are analysed as market failures, government failures and transformation failures.

Market, system and transformation failures

Economists analyse the question of why demand for a good – fair solutions to justice problems and peaceful, inclusive relationships in our case – is not met by adequate supply. They do this through the lense of market, system and transformation failures (Frenken en Hekkert, 2017). In submitting a proposal to the Dutch National Growth fund we were asked to provide this analysis to show why people-centred justice was a wicked problem that needed a mission-oriented and coordinated approach. The following is a summary of the analysis provided by HiiL. We believe it is relevant for most countries because justice sectors tend to be organised in a similar way.

Market failures:

1. The submission problem. Two or more parties in a conflict need to agree on a trajectory to a solution that they buy into. Most of the time there is one party who needs a fair, effective solution more urgently than the other one. This explains why governments have a judiciary in the first place and why voluntary, agreed mediation or arbitration is rarely used. Incentives are needed if parties are to comply with the conflict resolution process. The judiciary creates this incentive by delivering a judgement by default in accordance with the demand of the asking party if the defendant does not participate in the resolution process.
2. External effects: increasing complexity. This is often mentioned as a barrier. It is studied under the heading of administrative costs. The literature speaks of hyperlexis, a law-heavy world and rule-jungling. More and more public and private regulators produce more and more norms and procedures. An increasing number of parties are made responsible for the prevention of problems that are not part of their core business. Banks, for example, are now responsible for detecting and preventing money laundering in far away countries. The effect of all this activity is that for the resolution of a single justice problem (for example, separation or a conflict between business partners), more rules can be applied, procedures at different agencies can be started, or parties can be involved that could have prevented the problem. Increasingly, problems end up in civil justice, criminal justice and administrative trajectories. This complexity increases dispute resolution costs, as well as leading to overburdened institutions and delays. For citizens and companies that have to solve conflicts, this leads to high costs of engaging with the legal system or of outsourcing this task to lawyers.
3. External effects: the adversarial system. An action a person takes to address a justice problem creates costs for other parties. Complaints, accusations, requests for information need to be responded to. The costs of responding are not taken into account by the initiator. In a complex legal system, it may even be attractive to impose costs on the other party in order to improve one's own bargaining position.
4. Monopolies and insufficient incentives. Courts of law have a monopoly over mandatory dispute resolution (and the submission problem makes it unlikely that voluntary dispute resolution procedures will work). Police and prosecution also have a monopoly over the use of evidence gathering methods and starting criminal prosecution.
5. Information-asymmetry. This is a well recognised failure in the market of legal services (Garoupa and Markovic 2021). Individuals and SMEs do not regularly “buy” justice services. Justice practitioners serving them know far more about these services than they do. Increased complexity widens this information gap.
6. Collective action problems.The demand side hardly organises itself. In some countries, associations of victims or people in detention may exist, but they are far less organised than the supply side. Judges, police and lawyers tend to have vocal associations that are subsidised, based on mandatory membership and have regular consultations with ministries and lawmakers. Few justice systems have inspections, consumer boards or independent advice councils that represent the needs of the users. Disciplinary bodies for lawyers and judges focus on professional rules and less on “what works” for users of the justice system.

System failures:

1. Lack of knowledge and competencies. Key roles in the justice system for practitioners, as well as leading roles in institutions, can only be taken on by law graduates. Legal education and exams giving access to law professions tend to be strictly regulated. Knowledge of key laws and applying these rules to concrete cases is what law schools teach. Debate and litigation skills are far more prominent in curriculums than are the negotiation, mediation, counselling and adjudication skills that are needed for prevention and resolution of legal problems. The theoretical and conceptual knowledge needed for these must come from social sciences that are not integrated into the justice sector. Political science, legal scholarship, philosophy of law, sociology of law, and law and economics tend to describe what lawyers and judges do. The skills and methods of applied justice research and development need to be developed. The sector lacks a discipline comparable to public health for the health sector, or urban planning for the construction sector.
2. Out-of-date regulation. Regulation of justice markets consists of regulation of legal professions, of procedures, of legal insurance and of legal education. Regulations have focused on safeguarding the independence of justice institutions and the integrity of justice practitioners. Regulatory regimes should also safeguard other needs of users, including effectiveness, accessibility and sustainable financial models (see Hadfield 2021; Garoupa and Markovic 2021).

Transformation failures:

1. Governments and the justice sector leadership have not developed a joint and encompassing vision on the problem.
2. Security has a much higher priority than do just and effective outcomes for people seeking justice.
3. There is little articulation of the demand. In the judiciary, ministry and other justice sector institutions, demand from big business and organisations - served by powerful law firms - is felt much more strongly than demand for justice by individuals or small businesses. Major criminal cases attract a lot of attention. These sub-sectors attract most of the talent and are dominant when resources have to be shared.
4. In the organisation of the justice sector legislation, police, legal aid (or more broadly legal services) and courts are silos. Citizens are dependent on their interaction, however, for effective prevention and resolution.

Enablers of change

Inviting economists, policy makers and think tanks to work on these issues will help the task force to overcome the impediments, next to the strategies detailed in the preceding chapters. Stakeholder dialogues as described in Chapter 7 will be used to explore the mission, the strategies, and the impediments for innovation in the sector, as well as the opportunities connected to systemic change. When stakeholders meet, trust between institutions can grow. Partnerships can be formed. Stakeholders, and the sector more broadly, will experience the stages of rigorous R&D and innovation.

Learning about familiar and new tasks in dispute resolution processes as described in Chapter 5 will demystify the consequences of the transition to “what works.” Justice practitioners are more likely to buy into innovation when they see examples of costs, fees and financial contributions, as reviewed in Chapter 6, so that they can understand how their organisations can become more sustainable and grow. Resources will be mobilised. Strategic and R&D capacities will be increased dramatically, much more in line with the 3% of GDP that is spent on R&D in the national economy, and perhaps upwards to the 10% that is allocated to the fastest growing sectors (see Chapter 7).

A task force will also feel more empowered to challenge justice institutions. Institutions that have better plans, obtain better results for people, and demonstrate greater dedication to evidence-based working can receive more support.

Gradually, the task force will seek ways to transform itself into a more permanent institution or find a place in one of the existing institutions. In the preceding chapters we discussed a number of ways to improve incentives that a task force will consider and that need to be institutionalised. Monitoring outcomes and developing robust national indicators helps. Higher resolution rates and greater satisfaction with outcomes should be emphasised in order to bring more stakeholders on board. Individual justice practitioners deserve rewards for helping to resolve what often amounts to a crisis in an individual’s life or in a community in search of a sustainable and economically viable future. Improving relationships, resolving conflict and preventing crime should be recognised as valuable contributions to society. Financially, a game-changing justice service should benefit from the high-quality justice outcomes it delivers and its relatively broad reach. People who are satisfied with a fair outcome are more likely to express their appreciation. Similarly, a person dissatisfied with an unhelpful court decision should be able to express their needs. Confining feedback on justice outcomes solely to a formal appeal can be dehumanising. An alternative would be to see whether outcomes could be improved after an agreement is reached or a decision made. In dispute resolution language this is known as aftercare.

Continuously researching and expressing user needs is required as well. The Legal Services Board in England and Wales, for example, regularly publishes valuable research on consumer needs. Online contracting platforms, information and advice services as well as claiming platforms can be stimulated to respond to user needs (HiiL n.d.-h; HiiL n.d.-i; HiiL n.d.-k). A task force can facilitate research into evidence-based treatments and fidelity to these treatments in the service delivery model of the seven gamechangers. Following up on recommendations can be made part of the certification or approval process.

Collecting more data and holding justice services accountable for the outcomes they deliver should be high on the long term agenda of the task force. If improvements stall, the task force can consider additional incentives. On a level playing field, a low-quality incumbent will invite more competition from newcomers. The task force can identify areas where such competition is needed in an annual report on access to justice. Resolution rates and effective prevention (leading to a lower number of justice problems) could become central to performance reviews of leading officials.

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Many econometric studies are now being published that investigate what incentives and organisational features influence judicial performance. Melcarne, A. and Ramellosee, G.B. (2015), Judicial independence, judges’ incentives and efficiency, Review of Law & Economics; Voigt, S. (2016), Determinants of judicial efficiency: a survey, European Journal of Law and Economics.

Creating public engagement

People-centred justice builds on what people need, on the ways that people already create justice by themselves, and on the ways that justice practitioners help them. Can a task force assume that voters and politicians will be ready to support this cause?

Once the initial case for people-centred justice has been made, a task force needs continuous political and public support. Leaders in the justice sector and justice practitioners will change their ways more readily if they feel they have public support. Engaging with the public can even be considered a key element of the task force’s strategy.

The justice sector’s track record of public engagement is mixed. Recent research confirms criminal justice policies are strongly influenced by an often punitive public mood, which in turn is influenced by (often inaccurate) reporting on crime rates. Cases highlighted in the media tend to be outliers, not the average divorce, personal injury or theft in a shop. If the media exaggerates the bad intentions of perpetrators, their articles attract more views. Netflix series depict justice as an adversarial game, driven by a flow of accusations, claims and defensiveness, culminating in verdicts that provide relief. This is also how civil justice cases are often portrayed in the mainstream media.

Research undertaken by the Canadian Forum of Civil Justice reveals how lawyers typically talk about access to justice (Moore and Farrow 2019). Too often, they equate it with legal aid for the poor and criminal defence. This is not likely to appeal to middle-class voters. Better positioned messaging would focus on the justice problems that most people encounter during their lifetime and how tackling them can address the problem of governing communities in a non-polarised way. The public identifies more easily with groups who have been the victims of particular injustices. Media reports of this kind of systematic injustice often drive politicians to set up task forces. Funding for reparations is more widely accepted by the public in such cases, and politicians are happy to step in.

Another positioning option – in line with expert advice to focus on outcomes – is to zoom in on peaceful resolutions. In many countries around the world, fear of civil unrest and war is widespread. In the United States and Europe, many people are wary of polarisation. Peaceful resolution is too soft; law and order is too harsh. Proponents of people-centred justice must find a middle ground here.

Successful task forces develop a continuous public engagement strategy. If the work of the task force remains behind closed doors, the movement for people-centred justice can easily stall. A website where the media and the general public can follow progress is advisable. Indicators may have a central place on such a website. An infographic explaining the idea of systematic programming can be used to visualise how people in a country make progress towards fairer resolutions and signal what the task force plans to do next.

Professional and trade organisations for people-centred justice

Many people are shaping people-centred justice. These individuals would benefit from being organised and brought together. Increasingly, frontline judges, lawyers and prosecutors view solving justice problems as their mission. Many of them now work closely with professionals from other disciplines. Fewer and fewer see applying the law to cases as their core role. Many apply mediation techniques and use problem-solving methods in their everyday work. For many experienced justice practitioners, law is becoming more of a tool and a support structure to achieve fair results than the command structure they learned to follow in the early years of their career .

In addition, there is a growing number of courts, startups, law firms and companies offering innovative justice services. Together, they can be a powerful force that sustains the movement towards people-centred justice. First, this ecosystem needs to be organised. Together, they can demand a level playing field.

Currently, justice innovators and people-centred justice practitioners are less well organised than bar associations, organisations of judges, and formal justice sector institutions – all of which have ready access to ministries and politicians. Politicians and ministries need (and often want) a balanced representation of interests from the justice sector. A task force may be able to take on this challenge, or help to ensure that it is taken up.

Supporting the movement: a people-centred justice unit

A task force will be a crucial driver in maintaining the momentum of the initial phase of people-centred justice programming. Over time, the task force may consider setting up a permanent unit. Depending on the scope of the task force, this national unit may focus on one type of justice problem, a number of the most pressing ones, or a combination of gamechangers.

The main criterion for this unit would be its ability to maintain momentum via a gradual and sustainable improvement in resolution and prevention rates. The means to do this would be based on the five strategic interventions described in this report. The unit would therefore focus on: (1) regularly monitoring and publishing data on justice problems, their impact and outcomes; (2) further implementing evidence-based working; (3) ensuring gamechangers are scouted, implemented and scaled; (4) representing the needs of innovators and citizens in their efforts to improve the enabling environment; and (5) engaging in the activities described in this chapter to strengthen the movement.

Initially, the focus of the permanent unit may be to sustain the work of the task force. Regular meetings in which task force members are assigned tasks to follow up on the progress of the strategic interventions would still be needed. New members of the task force would need to be recruited on a continuous basis. A core group of eight members, with a broader task force of 30 members, have worked best to date.

In order to carry out these activities successfully, the members of the local people-centred justice unit will need a broad variety of skills. The leadership of the unit should consist of people with a high-level network and access to the media.

Determining how a centre like this could become sustainable is still a work in progress. Currently, the user-focused perspective of the justice system is not safeguarded in a systematic way. In some countries, innovation centres at universities are taking on this role, often led by ex-ministers or ex-chief justices. The university affiliation ensures a research orientation. It also has the disadvantages of a university bureaucracy, and funding may be limited.

University centres tend to be more vocal than research or training centres connected to the judiciary, the ministry of justice or the legal aid board. The latter often provide good data, but are less active in providing external incentives. In sum, the task force will have to carefully weigh the options for establishing a permanent unit.

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Examples of knowledge centres are: IAALS (Institute for the Advancement of the American Legal Systen, Denver), Centre for Innovative Justice (Melbourne), Namati Legal Empowerment Network, Centre for Justice Innovation (New York), Judiciary Training Institute (Nairobi), National Centre for State Courts (Washington), Harvard Access to Justice Lab, Legal services consumer panel (London), Federal Justice and Legal Research and Training Institute (Addis Ababa), International Legal Aid Group, Datos Abiertos de la Justicia Argentina. Self-represented litigants network. Barefoot Law in Uganda is a laboratory for new treatments and services.

Organising the international body of knowledge

Increasing access to justice for all is a UN Sustainable Development Goal. SDG 16.3 is a common goal for every country. Data collected on justice problems confirm they are largely similar in all countries and that solutions are likely to be similar. Comparative dispute resolution research confirms that mediation styles and preferred interventions differ as much between individual mediators as between the countries in which they operate. Decision-making by individual judges or community panels follows similar patterns everywhere. Information about rules is shared through similar channels: websites, telephone help desks and advice by legal professionals. Innovations developed by justice startups are comparable as well. The similarities have been consistently identified by researchers in the fields of comparative dispute resolution and comparative law (Moscati, Palmer and Roberts 2020; Nolan-Haley 2020).

Sustainable development goals are common challenges for humankind. They are textbook examples of a moonshot challenge. The effort to develop vaccines for Covid-19 and to organise how they are effectively delivered to every country demonstrates what international cooperation can achieve and how it can be improved. In order to make this happen, much groundwork was needed.

What might task forces – working together across borders – ask from a major foundation supporting Sustainable Development Goal 16.3? The following international public goods can substantially enhance the delivery of people-centred justice.

Elements of a standardised knowledge infrastructure	Examples and inspiration
Taxonomy of justice problems	OECD review of legal needs studies provides a taxonomy. Legal Issues Taxonomy by Stanford Legal Design Lab. ICD-11, DSM-5
Standard way to measure impact of justice problems	Legal needs studies have experimented with visual and numerical impact rating scales. HiiL’s JNS has different impact measures. Global burden of disease methodology.
Standard way to determine resolution rate and other key indicators	UNDP, WJP, OECD and OSJI have worked on a civil justice indicator.
Standard outcome monitoring tools for most pressing justice problems	See OECD study on monitoring. And HiiL on outcome monitoring.
Standard methods for developing treatment guidelines	WHO handbook for guideline development. HiiL guideline methodology for justice interventions.
Treatment guidelines most pressing justice problems	National Institute of Corrections evidence-based practice. Many jurisdictions have best practices for probation services (UK example). HiiL examples of recommendations for family justice and land justice
Recommendations for community justice services	WHO guideline on health policy and system support to optimize community health worker programmes, 2018.
Model law enabling innovative court procedures, innovative legal services and innovative treatments	Regulatory sandbox rules, Designs of legal services regulation, Laws governing innovation in construction industry, health care and other public services.

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The Institute for the Advancement of the American Legal System (IAALS) established the Unlocking Legal Regulation Knowledge Center, a resource base of current legal scholarship and state recommendations for those interested in unlocking legal regulations.
Independent regulators for legal services are replacing self-regulation by lawyers. They have been proposed or are being set up in Scotland, England and Wales, and Germany. A leading analysis is Hadfield, G.K. and Rhode, D. L. (2016), How to Regulate Legal Services to Promote Access, Innovation, and the Quality of Lawyering, Hastings Law Journal, (67)5.
To learn more about the level playing field, see The International Task Force on Justice and HiiL (2019), Innovating Justice: Needed and Possible.
The dialogue on regulation is also prominent in leading legal innovation blogs curated by William Henderson and Mark Cohen Henderson n.d.; Cohen n.d.).
The Consultative Group to Assist the Poor (2020) published a guideline for building a regulatory sandbox. Jeník, Ivo, and Schan Duff (2020), “How to Build a Regulatory Sandbox: A Practical Guide for Policy Makers” Technical Guide, Washington, D.C.: Consultative Group to Assist the Poor.

International cooperation has delivered similar public goods in the past. The World Health Organisation (WHO) and other international standardisation bodies can provide valuable information on lessons learned. In this report, we again and again emphasised the benefits of evidence-based approaches and economies of scale. Most task forces will work on a national level to secure these benefits. On an international level, the benefits of cooperation and collective learning are similar and as significant.

View References

Frenken, K. and Hekkert, M. (2017). Innovation policy in times of societal challenges. MeJudice: Economen in debat. URL: https://www.mejudice.nl/artikelen/detail/innovatiebeleid-in-tijden-van-maatschappelijke-uitdagingen. Accessed on August 6, 2022.

Garoupa, N. and Markovic, M. (2021). Deregulation and the Lawyers’ Cartel. University of Pennsylvania Journal of International Law, Forthcoming, George Mason Law & Economics Research Paper No. 21-16, Texas A&M University School of Law Legal Studies Research Paper 21-30.

Hadfield, G.K.(2021). Legal Markets. Journal of Economic Literature.

HiiL, (n.d.-h). User-friendly contracts. URL: https://staging.dashboard.hiil.org/the-gamechangers/user-friendly-contracts-and-other-legal-documents/. Accessed on July 31, 2022.

HiiL, (n.d.-i). Online information, advice and representation. URL: https://staging.dashboard.hiil.org/the-gamechangers/online-information-advice-and-representation/. Accessed on July 31, 2022.

HiiL, (n.d.-k). Claiming services helping people to access vital public services. URL: https://staging.dashboard.hiil.org/claiming-services-helping-people-to-access-vital-public-services/. Accessed on July 31, 2022.

Moore, L. and Farrow, T.C.W. (2019). Investing in justice: A literature review in support of the case for improved access. Canadian Forum on Civil Justice.

Moscati, M., Palmer, M. & Roberts, M. (Eds). (2020). Comparative Dispute Resolution. Edward Elgar Publishing Limited: UK.

Nolan-Haley, J. (2020). International Dispute Resolution and Access to Justice: Comparative Law Perspectives. Journal of Dispute Resolution.