Trialogue: Releasing the value of courts

Trend Report 2013HiiL Innovating Justice Contact: Maurits.Barendrecht@hiil.org

Trend report Future of Courts: Challenges? What works? Strategies?

Evidence base

• Literature review judicial reform, reform procedure • Innovation projects and experience

– international criminal courts, supreme courts, courts and their organizations , NL, Can, Ken, Ye

• Seminars with court leaders– The Hague, Singapore, San José (Costa Rica), Addis

Ababa and Tunis• Describing innovations at innovatingjustice.com• Weekly workshop with our network of experts in

our Justice Innovation Lab in The Hague

Courts have a great future!

No alternative in sight for ….

AdjudicationADR: • Mediation only fair with adjudication • Stand alone mediation negligible after 30 years (OECD)• Arbitration < 5% of disputes (OECD)• Ombudsmen, tribunals, committees, media, government

agencies, majors also provide “binding” adjudication

What is the value added by a typical European court?

Median from CEPEJ Data 2012

Serves 100.000 people

Solves 2320 contested civil casesSeparation, employment, commercial, neighbour

Corrects 2100 criminal acts 2 homicides, 15 robberies, other, 1400 offenses

Decides 265 administrative casesSocial security, permits, tax, migration, etc.

All this value is created …

By 18 judges including 5 higher court judges

+ staff

Budget of €2.7 million = €27 per citizen

Effective courts add even more value …

By being available!

If accessible:• 50% of disputes settle out of court • Up to 70% of incoming civil/criminal

cases settle

For 1 judgment effective courts produce 10 settlements +

Workable solutionsKnowing what happened

Peace of mind Proportionate retribution

FairnessRecognition

Financial stability

Voice

Participation

Trust

Respect

Trialogue

Releasing the value of courts

Courts create value …

By delivering excellent proceduresDiagnosis and intake

Collecting evidenceFacilitating dialogue/settlement

Growing towards final judgmentImplementation

Affordable Accessible

Timely

Courts are working on this

58% US court administrators say"My court is innovative“

We found 100s of court innovationsDrug courts, Mental heath courts, Judicial mediation, Facilitadores judiciales,

"Hot tubbing" experts, courtinnovation.org ,Courthouse dogs, Justice on wheels, Therapeutic jurisprudence, Settlement conferences mediator/judge,

Australian Centre for Justice innovation, Money court online, eLitigation Singapore, Water court, Co-parenting court, Neighbour courts, Justices of the

peace, Kaikaia: adjudication software for juvenile courts in Nicaragua, Videoconferncing, Blinded experts, innovatingjustice.com,Justice in your

community Peru, OECD, Commercial courts with auditors and business men, Employment tribunals, World Justice Project, Religious family courts

Indonesia, Patent courts, Disability courts, Social security tribunals, BC Civil resolution centre, Juvenile courts, Immigration tribunals, ODR intake forms, QandA intakes, Multidoor courthouse, Services to unrepresented litigants

What is effective?

1. Specialized procedures for urgent/frequent problems

What is effective?

2. Better integration with supply chain– Legal information, settlement, prosecution,

mediation

What is effective?

3. Simplification, empowering, self help

What is effective?

4. Sophisticated innovation methods

What is effective?

5. Chief judge having/taking broad responsibility

What is effective?

6. Computerization and online procedures

The court of the future …

Is likely to deliver procedures that are …

SpecializedFully integrated

Simple to operateDeveloped as product

Under your responsibilitySupported online …

DiagnosisFree

• Advice• Referral• Reflection

Intake±€50?

• Facts/data• Issues• Possible solutions

Dialogue±€100?

• Compare views• Agree solutions

Settlement±€500

• Mediation• Online or offline

Decision±€?

• Judge• Remaining

issues

Free or €€€Legal informationCalculation toolsNeutral legal adviceFinancial planningOther services

Online adjudication platformAdjustable to • Case type• Jurisdiction

Modria Resolution Platform

In one or two years …

Courts can use smart online adjudication systems

Fully configurableTo problem typeTo national rules

For €25-100 per case filed

Innovation at courts happens

But not as much as elsewhere

What are main challenges for court leaders?

1. THE ACCESS TO JUSTICE TRAP– Less delay, more effective and accessible

procedure = 0verburdened court– Little say over product and price

(procedure, fees)

2. Need for more HUMAN, less complex procedures

– Serving people with or without lawyers

3. Need to enhance neutrality, INDEPENDENCE, accountability

Breakthroughs are possible!

Our report mentions 3 conditions for more effective courts

1. Excellent procedures require a vision

and clear terms of reference

Examples of strategic options:

What should the procedure be able to achieve?

1. Excellent court of last resort?2. Excellence in solving legal issues? 3. Resolving problems in excellent way?

What does not work: Deciding on strategy by debate among judges

The benefits of choice

• Focus, motivated people, easier management• Each option leads to clear but different

– Innovation goals and terms of reference, court size, skills, staffing, IT systems, links other adjudicators, partnerships, relationships with users, legal professionals, general public

• If courts do not choose, others will for them– Random politics, ministries, competing adjudicators

2. True excellence requires a very sophisticated funding model

Funding models for courts: Huge barrier to innovation

Innovation > more value/less costs >more cases filed >

uncertain funding > risk of financial disaster > court leaders take no risk >

no innovation

Good funding models within reach

• Innovation = lower costs + more value

• More willingness to pay• Sophisticated fee and funding

systems for specialized services

3. Courts take responsibility for design and maintenance of

procedures

Rules of procedure arebarrier to innovation

Great principlesRules old, detailed, not updated

Innovation has to wait until rules changeJudges twist laws if they innovate

Imagine medical treatments would be designed by legislators

Health care sector

Each year 10,000s of innovations in diagnosis, treatments, software and

hardware, computer programs, medicine, methods for surgery, instruments

Because of risks, quality concernsHealth care innovations

Are certified/licensed/monitoredBUT NOT DESIGNED

By rule makers

Reframing Our proposal:

Future laws of procedure:

Principles +Certification system for procedures+Monitoring

Releasing the value of courts

Well monitored:1. Strategic independence2. Financial independence3. Independent designing and

maintaining excellent procedures

If empowered to develop excellent proceduresThe future of courts looks bright!

Maurits.Barendrecht@hiil.org

www.hiil.org