Researcher TISCO, Tilburg University
The access to justice gap
This post is the third in a series of six. In the coming time, you can find weekly blogposts that will present the highlight from the Trend Report: Towards Basic Justice Care for Everyone. Each of these posts will introduce a topic that will be discussed during the Innovating Justice Forum on April 16-17 in The Hague.
Elbert Hubbard, American writer, philosopher and publisher, once said: “a bad compromise is better than a good lawsuit”. We do not know whether Hubbard drew this conclusion from solid empirical observations or simply reflected on the popular notion existing in many cultures that justice by definition is slow and expensive. What plenty of research demonstrates is that indeed when people have legal problems they do not rush to the see lawyers or file lawsuits. The Trend Report shows that if there are between 200 000 and 400 000 serious and difficult to solve problems per year per 1 million adults, only about 15 000 of these problems will ever reach a court room or other adjudication institution. For instance, a study from England and Wales reports that 5% of the people who managed to solve their legal problem used the court mechanisms. Another study conducted in Vietnam finds that 6% of the interviewed people ever went to a court room. The bottom line is that people solve their problems trough negotiations; adjudication is rather an exception.
Why people use so rarely the adjudication system for solving problems? Is it because they truly believe that compromise is always better than a legal battle? Are people fond of social harmony and perceive legal disputes as eminent threats to social and communal order? Certainly there is no one easy answer to these questions. The Trend Report reviews many studies conducted in various countries. Every study finds that there is a formidable group of people who report an experience with legal problem but did nothing to solve it. Recent study from Ukraine, for instance, reports that 41% of the respondents did not take any action to solve serious and impactful legal problems. Shame, embarrassment, perceived and experienced costs, disbelief that something can be done as well as perceptions that the problem is not that serious are the most frequently cited reasons for remaining passive.
There is another dimension of the access to justice gap. People might take steps to solve disputes and grievances but not reach the outcomes they aimed for. Empirical studies report that between 1/3 and 1/2 of all people who took some sort of action to solve to their legal problems did not achieve their goals.
The Trend Report is not only reviewing the problems but also suggests strategies for bridging the access to justice gap. Elaborating on the finding that most people use some sort of negotiation to solve their legal problems, the Trend Report outlines an analytical framework for decreasing the gaps in access to justice. Dispute resolution processes are broken down into five steps. Basic methods that facilitate each step are proposed:
|Tasks||Description||Basic methods to achieve this|
|Meeting||Contacting and starting an interaction with the other party about the problem||< Incentives to cooperate|
|Talking||Negotiating (interest based)||< Skills and structure|
|Sharing||Bargaining about who gets/does what||< Information about rights, rules, and fairness standards|
|Deciding||Coming towards a decision||< Option of third party decision (adjudication, formal, informal), trilateral governance|
|Stabilize||Making explicit and organizing compliance||< Incentives to comply (public involvement and oversight)|
The Trend Report also discusses the viability of access to justice targets. If we begin from the legal problems of the people, can we say that a well functioning legal system has to solve 75% of the employment problems in such a way that the parties think that procedural and outcome justice was dispensed? In essence, the Trend Report calls for exploring the feasibility of an epidemiological classification of the legal problems and their solutions. Furthermore, it explores the possibilities for assessing the status quo of rule of law in various countries using such an epidemiology of legal problems and legal solutions.