Best practices in access to justice

1. Can you briefly describe the innovation, the problem it tries to solve and why is it necessary?

In many developing countries people have no access to the legal system to solve their conflicts. Therefore, in recent years there has been a lot of attention on alternative justice services to provide access to a neutral form of conflict resolution. Paralegal programs, Legal Aid support with a psychological component, and community dispute resolution initiatives are examples of this new commitment to ‘bottom-up justice’. In the Microjustice Toolbox project the best of the new experiences are gathered and collaboration is sought for further innovation to strengthen the services. The toolbox focuses on what really works on old and new approaches, and developing an evidence base for best practices so they can be used, with confidence, to offer cheap and effective conflict resolution. In addition, we test innovative tools that are aimed at coping with the challenges in current approaches.

The need for a better understanding of what works in dispute resolution and to pass that knowledge on has led to the development of the toolkit. The target group of the project is the practitioners in the countries and ultimately everyday people with their problems in those areas as well.

The toolkit is created in a collaborative process between TISCO and partner organizations. TISCO collects academic evidence that some dispute resolution practices should work and communicates this knowledge through www.microjusticeworkplace.net with partners. The partners decide what challenges to work on, shape the tools that they need to suit their context and test them in practice. Experiences in the testing rounds can lead to adaptation of the design. Also, to contribute to the evidence base, Dutch experts (e.g. from ‘DAS Rechtsbijstand’) and the microjustice network provide expert input on the tools. The collaborative development process, ongoing evaluation and redesign of the tools (evaluating if they are working properly) and the emphasis on developing a strong evidence base about what works, constitute an innovative approach.

The basis of the tools is contained in a list of 23 'how to' questions. These are divided into five phases. In each phase, four or five questions are discussed. The five phases are:

1. 'Meet': for example, ‘how can you motivate an unwilling party to participate in a trial?’.
2. 'Talk': for example, 'how can you, in a good way, deal with emotions in a process?’
3. 'Share', such as: ‘how can I ensure a reasonable allocation without being influenced by a difference in power?’
4. "Decide", for example: 'how do I set up a neutral forum that can make a decision when parties cannot agree upon a solution to a conflict?’
5. "Stabilize", for example: 'how do I involve witnesses in a clever way to improve the chances on implementation of a solution to a conflict?’

Supported by input that we share on www.microjusticeworkplace.net, partners formulate a response to these 'how to' questions themselves. These first concepts are then applied and tested in practice, followed by a feedback session in which the partner organizations reflect on each other’s tools. The learning process is central. These ‘streams of feedback’ feed into the second and subsequent concepts of the tool, culminating in a first final version.

Our role is to identify all dispute resolution practices and to find clever new combinations of old and new knowledge in order to contribute to an effective process. The emphasis is on the procedure and not on the substantive law (although of course it is sometimes not possible to draw a clear line between the two). Tools can also be developed for more general problems in dispute resolution services, for example a progressive agenda for the protection of women’s and children’s rights can raise a tension with regard to local standards. Working together, partners also develop tools for these challenges.

An example with regard to the position of women: the partner organization in Cairo, Egypt, has long been fighting for better access to justice for women and hesitates to re-strengthen the traditional systems, because women’s rights were not always well protected in these systems. They are now developing a number of tools that contribute to overcome these weaknesses, for example a collection of traditional stories in which the equal position of men and women is central. The experience of facilitators is that the telling such a story, in the case of a dispute between a man and a woman, can contribute to a change of behavior.

2. What makes your innovation unique?

Our innovation is unique because we seek the strengths in traditional practices and explore how we can add knowledge about dispute resolution from contemporary justice solutions such as modern mediation practice to create dispute systems that have the best of both worlds. It's all about what works to effectively resolve disputes.

Also, the co-creation approach to tool development, with its strong focus on shared learning, is unique. Each context has its own particular challenges. We hope that our approach makes the diversity in challenges and solutions transparent to support further learning and knowledge development.

For example in Cambodia, we have two partners who are developing tools based on their own ideas and needs. This creative pluralism contributes to increase the learning process about what works, as long as the tools are well tested. We aim to support cross testing (where organisations use and evaluate tools which have been primarily designed by other organisations), so that partners can learn from each others ideas.

For the Dutch partners, this process is also interesting because a lot of wisdom lies within the traditional approaches of dispute resolution and there are partners in developing countries who
sometimes apply innovative methods without the dialects of progress such as the Dutch legal practice.

3. What triggered the development of the innovation?

TISCO has done a lot of research on procedural justice. This knowledge provides a good basis for this project. In addition, there is a lot of knowledge available within the partner organizations with regard to traditional and modern dispute resolution methods. We can bring together this knowledge so all practitioners can benefit from it. It is useful and necessary to have a clear picture of all this knowledge and practical experience. The idea of developing tools originated in MJI and then became part of IRI.

4. Which persons and organisations were involved in the development and what role did they play?

Within MJI:

• Maurits Barendrecht
• Corry van Zeeland
• Monster Jobien as manager researcher
• Robert Porter as a researcher

Partners are:

Tool development

• The Lawyers for Justice and Peace in Cairo, Egypt, www.cewla.org
• DAS Rechtsbijstand www.DAS.nl

Tool development and testing

• Praxis Support to Social Development, in Baku, Azerbaijan, www.praxis.azo Tool development and testing
• The Cambodian Human Rights and Development Association, (ADHOC) in Phnom Penh, Cambodia, www.adhoc-cambodia.org
• Kantor Bantuan Hukum (KBH), legal aid office in Lampung, Indonesia

lPractice mapping, tool dissemination

• ZOA ‘Vluchtelingenzorg’ in Anlong Veng, Cambodia www.zoa.nl

Partner to work with the camp management of the Burmese refugee camps in Mae La and Mae Hong Son on improving justice services in the camps. Tool development and tool testing. 

• International Rescue Committee (IRC) Thailand, www.rescue.org

To perform research in Cambodia on the effectiveness of commune dispute resolution committees, tool development, testing and dissemination.

• CORD, www.cord.org.uk

Co-financing the research project with CORD in Cambodia

• World Bank, East Asia Pacific Justice for the Poor program

Support in the establishment of partnerships

• Oxfam Novib www.oxfamnovib.nl

5. What kind of resistance have you encountered and how have you overcome it?

Partners in different countries have their own priorities, knowledge and ideas about what is needed. To make the project a success we needed to connect to, and work on, the basis of these ideas. This is a discursive process which was not directly foreseen in the project plan. To develop a good work plan that allows for diversity and incremental progress, yet leads to tangible results, we needed to learn about local contexts and establish good collaborations. This took some more time to develop than expected at the start of the project.

These resistances are overcome by focusing on shared learning and connecting to the views of the others. The knowledge development needs to be concentrated on the partner’s perspective and at the same time moving towards result: developing the tools. Taking a supporting position that is aimed at supporting their own strength to develop tools motivates people and leads to results (tools that are being used). The challenge is to broaden the opportunity for innovation. A lot of knowledge about the so called ‘Talk’ phase of mediation is already available within the partner organizations. We want to know if we can introduce tools for organizing an independent decision as well. The ‘Decide’ phase (as mentioned under question 1) will become an important agenda item during the working conference we plan with our partners to finish the toolbox, presumably in Cambodia beginning in October 2011.

6. How did you make the goals realistic and attainable, and at what time will which quick wins be available?

The goals are made realistic by making proper arrangements with all partners about what we expect from them in the development process. Each key partner works with a project plan and a budget. The three phases in each project are 1) tool development, 2) tool testing, 3) redesign and tool finalization. These phases are included in a planning document for each project. In March 2011 we received the first drafts of the tools provided by the partners. The first final versions will be ready in July. The process continues after the project is completed. Regarding the project in Egypt, there are now concerns about the feasibility within the planning, because of the revolution that has put the attention of the partners in another direction.

7. Will the innovation have an effect on other organisations in the chain and if that is the case, how will it affect them?

All the learning experiences and results will be shared. People / organizations will realize that it is possible to innovate based on an evidence based approach and have access to the tools to adapt them for their own use. Also the use of tools can lead to progressive benchmarking to increase the quality of the procedures and as such become tools for others in the justice chain with an interest in fair outcomes.

8. How was the development funded and what were reasons for the financing organisation?

As one of the subprojects of the Innovative Rule of Law Initiative (IRI) the toolbox is funded by the two grantors of IRI: the Dutch Ministry of Economic Affairs and the municipality of The Hague and Microjustice’s own contribution.
One of the reasons for this financing is further development of The Hague as a centre of excellence where knowledge and innovative products and services are being developed in order to strengthen the rule of law. The toolbox is one of these innovative products and services because of its evidence based approach and collecting scientifically valid data on what works well.

9. Can you name 3 to 5 characteristics of the innovation that are most essential to make it work?

• The tools should clearly contribute to a good process and be easy to use;
• The people who work with the tools need to have a sense of ownership, the collaborative aspect of the process is a prerequisite for success;
• There must be an ongoing learning and assessment process to further develop the knowledge;
• Good project management: control over the process and striving for results.

10. How do you measure whether it is a successful innovation?

We primarily look at the use of the tools. It is successful if everyone who was involved in the process of development is using the tools and passing the knowledge to other people.

11. How many people or organisations benefit from this innovation now?

The partner organizations and the people from their network who participate in the workshops and processes of tool development and testing.

•  The Lawyers for Justice and Peace in Cairo, Egypt (20 people)
•  Praxis Support to Social Development, in Baku, Azerbaijan (8 people)
•  The Cambodian Human Rights and Development Association Cambodia (20 people)
•  ZOA ‘Vluchtelingenzorg’ in Anlong Veng, Cambodia (12 people)
•  Kantor Bantuan Hukum (KBH), legal aid office in Lampung, Indonesia (15 people)
•  International Rescue Committee (IRC) Thailand (50 people)
•  CORD (50 people)
•  DAS Rechtsbijstand (5 people)

Total 180 people

12. How many people or organisations could potentially benefit from it now or in the future? (scaling-up)

When the toolbox is finalized we expect to double the number of people who have been included in the design process to learn about the tools and to start to use them, about 350 people in 5 countries.

In the follow up, we estimate that these people will pass on their knowledge to approx. 2 new people per year. So after one year >700 people will work with the tools and after 2 years >2100 people.

If all of these practitioners contribute to +/- 5 dispute resolution process per year, our outreach will be to the 2 parties of 1500 cases after year 1 and after two years, to the two parties of more than 10.000 conflicts.

We will also investigate with Oxfam Novib how the tools can be disseminated in a follow up project after this project has ended.

13. Can you quantify the financial benefits? (Cost savings, additional income or otherwise)

The clever use of tools by practitioners in the field leads to an effective 'best practice based’ dispute settlement process. This way of controlling the process has a positive impact on the value and measurable effectiveness of its service and could support a sustainable business model.

If the tools are used properly they provide the customer with an accessible, cheap and effective 'path to justice'. Costs of protracted conflicts and expensive court procedures are saved. Potentially, based on the tools, new services can be developed which lead to more work and income. Within the coming 5 years there are perhaps 10 services with a solid business model. However designing a business model is not that easy in this area. Many people in developing countries just do not have money for legal aid. However, even en microjustice services will need financial support, the toolbox approach will also be valuable for donor supported projects because capacity and resources at NGO’s are being deployed most effectively to achieve results.

14. Is the innovation financially viable and sustainable and if yes, how?

Yes, the tools improve working processes and can save costs of of protracted conflicts and court procedures. Possibly the toolbox may generate a income generating opportunity because people may be willing to pay some basic fee to have access to an effective dispute resolution provision.

Besides, knowledge sharing also contains an element of sustainability. The more people who are using the tools and improving them, the more they gain in skills and knowledge.

15. Can or will the innovation be used internationally and how do you overcome cultural differences?

Yes, the tools are being used internationally. Cultural differences are overcome by adapting the tools to the local context. The toolbox will consist of differently styled localized tools that can be borrowed, assessed and adapted to new circumstances. It is not our ambition to develop one standardized tool.

16. What lessons did you learn along the way that could be useful to others?

•  Start with making a real connection to the local context. Do not think you can just start ‘implementing’ ideas, but work together with people on the basis of their needs to get results.
•  Make clear agreements with the people you are going to collaborate with to clarify what the outcome will be and what steps will be taken.

If you've found the right connection, the process will run naturally because the party really cooperates from their own motivation. If this motivational element succeeds, the project becomes a success.