This chapter reviews principles and good practices for designing people-centred legal and justice services and provides an overview of evidence of “what works” in meeting legal and justice needs.
Equal Access to Justice for Inclusive Growth
Putting People at the Centre
Chapter 5. Designing people-centred legal and justice services
Abstract
Step 3 rationale and overview
The third phase of planning focuses on designing people-centred legal and justice services that meet the legal needs that have been identified, measured and mapped. Legal needs research gives profound insight into the everyday nature of legal and justice problems and the potentially serious consequences of failing to meet these needs. Weaving these insights with drivers of inclusive growth and sustainable development creates a new narrative concerning how and why the justice system needs to shift to incorporate people-centric measurement, policies, services and delivery models.
One of the central insights is that legal need is essentially functional: “It does not exist independently of an associated end. People do not need legal services, they need the ends which legal services can bring about – even if the end is one of a sense of fairness” (Pleasence et al., 2001[1]). The design of people-centred legal and justice services integrated a focus on the ends or outcomes to be achieved and these may not always directly connect to the law even in the context of legal services. The extent to which legal and justice services are required will vary from case to case and therefore “[W]hat type and level of legal service is required is as important a question as whether legal services are required at all” (Pleasence et al., 2001[1]).
Chapter 2 provided a high-level summary of legal needs survey findings concerning the extent of legal needs and the dynamics of unmet legal needs. These surveys also provide an important evidence base concerning people’s experiences in navigating justice systems and seeking legal assistance as summarised in Box 5.1. As mentioned, these findings are generally consistent across jurisdictions and one important starting point in designing people-centred legal and justice services that work.
A central focus of the OECD Access to Justice work is identifying strategies that work to provide equal and people-centred access to justice and promote socio-economic inclusion and the sharing of good practices in this regard. The question of ‘“what works’ works” is not a simple one as it involves a number of dimensions: what works, for whom, in what circumstances, at what cost and how do we know (Pleasence et al., 2014[2])?
The discussion of the complex question of ‘“what works’ works” is divided: Chapter 5 reviews principles, practices and evidence that assist in the design of policies and services that work and Chapter 6 reviews policies, practices and evidence that assist in the delivery of policies and services that work.
The first section of this chapter elaborates the concept of people-focused access to legal and justice interventions as a continuum of legal and justice services. The second section identifies what works in the design of people-centred delivery of a legal assistance, legal aid and justice services based on: lessons derived from the experience with user/client/citizen-centric approaches in other public sector fields, access to justice principles and indicators currently used by governments and non-governmental organisations, and emerging promising practices based on experience and evaluation in OECD and partner countries. A final section sets out key findings and policy recommendations and identifies areas for further research.
Box 5.1. Legal needs survey findings of what works
The central points that can be drawn out from the body of research concerning people’s experience in navigating justice systems and seeking assistance with legal problems are:
Information failure is a significant issue: people do not understand legal events, what to do or where to seek assistance. People do not seek traditional legal advice, but rely on non-professional sources of advice and generally available information.
People do not generally seek to use courts or formal justice mechanisms as a means of obtaining assistance in relation to legal issues.
More information should be made available and it is important to find ways to encourage more people to rely on the existing resources that are available to them.
Multiple, diverse, and integrated access points and service responses are needed: access to a wider range of entry points is key.
Access to reliable information and assistance about legal processes and sources of self-help should be made available.
More tailored legal services are required.
Additional support to lawyers and paralegals who provide essential services to low- and middle-income people is essential.
Service models and priorities must be targeted, designed and delivered to meet the specialised needs of these communities.
Continuum of legal services and spectrum of justice services
People-centred justice services encompass a growing spectrum of processes and procedures in addition to formal judicial and non-judicial proceedings: alternative mechanisms for dispute resolution such as mediation, online dispute resolution, paralegals, public legal education providers, community advocates, collaborative service provision from legally-trained and other professionals, and pre- and post-resolution support.
The justice service continuum is generally seen as a graduated scheme from least interventionist, such as the passive provision of legal information, to advice, various forms of limited legal assistance, partial or limited forms of legal representation (such as “limited scope” or unbundled legal services) to full representation in various alternative dispute resolution (ADR) processes, non-judicial and judicial fora (Figure 5.1). Legal needs studies established that the everyday legal needs experienced by most people never reach a courtroom.
Figure 5.1. A continuum of legal and justice service model
Source: Adapted from Currie, A. (2009[3]), “The legal problems of everyday life”, in R.L. Sandefur (ed.), Access to Justice: Sociology of Crime Law and Deviance, Vol. 12, Emerald.
Legal services have traditionally been conceived as the work of lawyers with the centrepiece being the private law model of “full representation”. Full representation might involve a combination of most, if not all, of the following activities: information gathering; legal and other research and analysis; advice and counselling; commencing or defending proceedings; negotiations and mediation; interim proceedings; trials and hearings; law reform and systemic activities; and referrals. Thus, legal services involve complex and continuous obligations to clients. In many countries, public legal services, often referred to as legal aid, were based on this comprehensive model of full legal representation provided by lawyers and in some countries, this is still true.
The range of services on the spectrum of justice services and the continuum of public legal services varies from country to country and evolves over time (Box 5.2). In some cases, a justice service provider operates a single service (e.g. a specialised mediation process) and in other cases, a range of justice services are provided by one entity (e.g. problem-solving court, justice access centre). This services continuum is also offered by some private sector service providers such as legal insurance schemes and private law firms as well as by non-governmental organisations (NGOs) or charitable programmes, often referred to as pro bono programmes.
Ensuring equal access to justice means both providing the right mix of legal and justice services and putting in place effective diagnostic and referral systems to assist help people to access the service or services that works for them, and facilitating collaboration between services and among service providers (see Chapter 6).
Service priorities are vary between and within jurisdictions, given differences in people’s legal needs, current service infrastructure, geography, demographics and the challenges faced. At the same time, valuable lessons can be extrapolated from sharing information about what services work best under a specific circumstance. There is an important dynamic between the substantive law, the complexity of procedures and operation of justice services, and the need for legal services (Engler, 2010[4]). In general terms, the more complex the law and procedure, the greater the need for legal assistance. Conversely, simplification of procedures may reduce the need for assistance.
Box 5.2. Continuum of selected public legal assistance services in France
Access to legal knowledge is a fundamental element of the pacte social (social pact). It is implemented through 101 conseils départementaux de l’accès au droit (CDAD – county councils for legal access) as well as a proximity judicial network including 147 Maisons de la justice et du droit (MJD – law and justice houses) and 1 515 points d’accès au droit (PAD - access to law points) and relais d’accès au droit (RAD - access to law relay points).
Access to law points
Points d’accès au droit (PAD) are permanent and free centres that primarily provide local information on rights and duties to people with legal difficulties, thanks to legal professionals or lawyers, and qualified stakeholders. Their main characteristics are permanence (unlike occasional services), a multidisciplinary team and services and the existence and organisation of reception. Some PADs are specialised in a particular type of audience (young or isolated people, prisoners, compulsory hospitalised patients, foreigners, etc.). Since 2016 this network is extended to jurisdictions which provide legal information or guidance prior or as an alternative to a judge’s referral.
Law and justice houses
Maisons de la justice et du droit (MJD) work on preventing and dealing with petty crime, the amicable settlement of disputes, organising themed surgeries and specialised legal consultations.
Access to law relay points (network)
Relais d’accès au droit (RAD) cover all access to law mechanisms that are co‑ordinated by the CDAD and do not meet PAD criteria. This access point is available in various locations including Centres communaux d’action sociale (social action municipal centres), Maisons du citoyen (citizens’ houses) and mobile support, e.g. “justice bus” run by bars such as Bus Solidarité du Barreau de Paris or linked to associations.
Multi-service information and mediation points
Points d’information et de médiation multiservices (PIMMS) are organisations designed to stem the process of exclusion of the most vulnerable groups in urban districts and to facilitate access to public services. 66 PIMMS are located throughout the territory.
Public service houses
The Maisons de services au public (MSAP) are tools for equal access to public service and enable an efficient network of contact points for populations in rural areas, medium-sized towns and priority neighbourhoods in cities. They ensure free and unrestricted access to digital or computer tools, allowing people to fulfil dematerialised administrative procedures. More than 1 300 MSAP are available in France.
Source: Ministry of Justice, France.
As people tend to experience legal problems in connection with other social, economic or health problems, this underscores the importance of integrating or “joining up” legal and justice services with other human services (such as health, education and housing).1
In addition, there is a growing recognition that access to justice should cover also the access to the enforcement of judicial and extrajudicial decisions. One of the often-cited barriers in several systems is the lack of policies and mechanisms ensuring the access to follow-up of people involved in some way in a dispute. Once the dispute is settled, in many cases, there are only limited mechanisms for the oversight of the execution of the judicial or extrajudicial ruling (e.g. insolvency or labour dispute cases).
Identifying what works in service design
The OECD’s efforts to identify current approaches to designing and delivering access to justice and legal assistance confirm that access to justice strategies are pursued differently and vary widely in OECD and partner countries. Countries have different ways of conceptualising and measuring access to justice, which in turn shapes the design of legal and justice services.
Practices that “work” in designing legal and justice services build on three sources of policy, research and evidence: lessons from another sector; access to justice principles and indicators developed by various bodies (national and international); and promising practices in delivering people-focused services in OECD and partner countries.2
Lessons from other sectors
Experience from other sectors suggests that a user-centred approach to enhancing access to services promises to raise quality, reduce waste and – most importantly – improve other life outcomes and well-being. At the same time, the shift from a justice system perspective to a people-centred perspective, while easy to grasp in general terms, can be difficult to operationalise. To this end, justice and legal services may be able to learn from the experience of other sectors.
The Canadian Institute for Citizen-Centred Service, an organisation dedicated to pursuing excellence in public sector service delivery, highlights six implications of this shift to people-focused services (although it needs to be recognised that many [and, in many jurisdictions, most] legal and advice services fall outside of government [and NGO] services and funding):
Services should be conceived and executed from the “outside in,” not inside out, with the needs, perspectives, improvement priorities and satisfaction of citizens foremost in mind.
Users of government services are not just “clients” – they are consumers of government services but also bearers of rights and duties in a framework of democratic community and as such, citizens “own” the organisations that provide public services and have civic interests that go well beyond their own service needs.
Many are “involuntary clients,” whose service relationship with government derives not from choice but rather from their obligations as citizens or from the rights of other citizens; therefore, fairness is key.
Providers of public services have to balance the distinct interests and needs of different categories of citizens within the broader framework of the public interest. The satisfaction of immediate “clients” needs to go hand in hand with the confidence of all citizens in the institutions of government.
Perhaps most importantly, service delivery in the public sector should be citizen-centred because every act of service is a “moment of truth” and citizens form an impression – positive or negative – about the effectiveness of public institutions and the potential of democratic government. The service experience either increases or decreases confidence in public institutions and in the degree to which they are capable of fulfilling their democratic missions. It thus enhances or diminishes confidence in the potential of their democratic citizenship (Institute for Citizen-Centred Services, n.d.[5]).
Citizen-centred reforms have “bottom-up, results-oriented dimensions [that] focus public entities on outcomes and impacts rather than inputs and process, and centres attention on citizens as the final principals of public entities” (Andrews and Shah, 2003[6]). The main differences between citizen-centred reform and other common reform approaches are the:
overall arrangement of reform around a participatory-decentralisation element
central focus on results
inclusion of an evaluations component.
Citizen-centred governance incorporates “citizens’ concerns at every stage of the service design and delivery process; that is, citizens’ needs become the organising principle around which the public interest is determined and service delivery is planned”. Repeated Canadian surveys found that the top factors contributing to citizen satisfaction with public sector service delivery are timeliness, outcome, staff going the “extra mile” to help individuals get what they need, fairness and knowledge. More recently, the discussion is also moving towards considering citizens as “prosumers of services” where the “citizen-collaborator” identifies service needs and helps to shape their fulfilment. These trends reflect the increasing opportunities offered by technologies to different government services and information (including legal assistance justice services), notably via net communities and websites where citizens spend their time on line, increase choice and enable greater customisation of services (Flumian, 2009[7]).
Another study found that four central concepts underlie effective citizen-centred service delivery that achieves improved outcomes for the individual, their family and the country as a whole. These concepts are:
Integrated outcomes-based policy: Looking at what outcomes are desired; how the current government offerings achieve that; and the opportunities to reduce overlap, duplication and address the gaps in the service offerings available.
“No Wrong Door” service delivery: Looking at the design, availability and alignment of service delivery channels and optimising the service delivery in each of them. No Wrong Door makes sure that wherever the citizen goes, they can get access to all the services they need.
Intelligent processing: Understanding how to take account of priority, complexity and risk so that processing applications for services and benefits are automated where possible and only ask people to do the things that are truly required.
Collaborative governments: Understanding the overlap between departments, governments and non-governmental organisations and leveraging their collaborative nature to achieve the outcomes that government desires and citizens need (Duggan, 2013[8]).
However, to be truly transformational, the four concepts need to be “implemented together with a deliberate focus on understanding the positive impact they can have on the citizen and their families”.
The shift to people-centred legal and justice services mirrors the shift to patient-centred care within healthcare systems. There appear to be many similarities between healthcare and legal and justice services. Barriers to health and justice are complex and multiple strategies are required to overcome these barriers. Relatively recently, there has been an increased understanding of the important role of health literacy and health capability in achieving and maintaining good health, just as there now are growing efforts to understand the importance of legal literacy and legal capability in achieving access to justice. Legal needs research underscored the dynamic between unresolved legal problems and poor health outcomes and between health challenges and increased legal problems, as well as the links between health literacy and legal capability (CLEO, 2015[9]). The concept of legal health itself is gaining currency as a way of empowering people to take charge of their legal affairs as a preventative strategy to avoid the growth of legal problems (CBA, 2013[10]).
Recently, there has been recognition that “data generated by health systems, however, are too concentrated on health system inputs and activities. There remain substantive gaps in what is known about the experience of patients, and the outcomes of care from the patient’s point of view” (OECD, 2017[11]). The next stage involved developing patient-centred indicators to gather this information in a harmonised manner across countries. Similarly, in many countries, justice system data is concentrated on inputs and activities, particularly linked to cases in the formal justice system (court and tribunals); a people-centred approach requires a shift in criteria and data collection (see discussion above in Chapter 3).
In the healthcare context, patient centredness can be defined as “the degree to which a system actually functions by placing the patient/user at the centre of its delivery of healthcare and is often assessed in terms of patient’s experience of their healthcare” (Kelley and Hurst, 2006[12]). Three dimensions are selected as the basis for patient-centred health quality indicators: effectiveness, safety and patient centredness (or responsiveness). In turn, these dimensions are applied across the key stages of the care pathway: staying well (preventive care), getting better (acute care), living with illness or disability (chronic care) and care at the end of life (palliative care) (OECD, 2017[13]) (Box 5.3).
In the health information systems field, the move towards people-centric developments was guided by the objectives of empowerment (repositioning citizens in the health system) and health literacy (using information intelligently in day-to-day health- related decisions) (Sakellarides, Pedro and Mendes, 2009[14]).
The design of people-focused legal and justice services could integrate these healthcare developments by focusing on indicators of responsiveness across the various stages of the justice pathways from prevention to post-resolution. Lessons from the health sector also show that the ability to effectively implement a culture shift towards people-focused services will in many cases depend on the effectiveness of the public communication campaign to overcome resistance to change.
Experience in the field of building financial literacy is also helpful in planning legal and justice services that work. According to the OECD work on financial literacy, one of the key lessons in developing responsive measures is that there is no one one-size size-fits fits-all approach. The implementation of surveys to learn about levels of financial literacy and identify priority groups is critical. There is the potential for a nationally co‑ordinated approach to financial education that consists of an adapted framework which:
Recognises the importance of financial education and defines its meaning and scope at the national level in relation to identified national needs and gaps.
Involves the co‑operation of different stakeholders as well as the identification of a national leader or co‑ordinating body/council.
Establishes a roadmap to achieve specific and predetermined objectives within a set period of time.
Provides guidance to be applied by individual programmes in order to efficiently and appropriately contribute to the strategy.
It may be feasible to adopt this type of framework to guide countries’ efforts on the legal literacy front and of the OECD supporting this process as it has done in the financial literacy field. Given these parallels, there are opportunities for inter-sectoral exchange and networking concerning good people-centric practicses.
Box 5.3. OECD healthcare quality indicators
The OECD developed a set of healthcare quality indicators and a framework for performance measurement. These are based on a 4-year review of healthcare systems in 15 OECD countries. In the OECD’s work to measure and improve healthcare system performance, healthcare quality is understood to comprise three dimensions: effectiveness, safety and patient-centredness (or responsiveness). These dimensions are applied across the key stages of the care pathway: staying well (preventive care), getting better (acute care), living with illness or disability (chronic care) and care at the end of life (palliative care).
To facilitate the provision of high‑quality care, governments and professional and patient groups use a consistent set of tools, such as standardisation of clinical practices, monitoring of capabilities, reports on performance or accreditation of healthcare organisations. The way these tools are shaped and used varies, rightly, from system to system depending on local needs and traditions. Three key lessons have been learned from this review to date:
Systemic changes on where and how healthcare is delivered will optimise both quality and efficiency.
Healthcare systems need to engage patients as active players in improving healthcare while modernising the role of health professionals.
Healthcare systems need to better employ transparency and incentives as key quality improvement tools.
Table 5.1. Key policies and institutions that influence healthcare quality
Source: OECD (2017[13]), Caring for Quality in Health: Lessons Learned from 15 Reviews of Health Care Quality, https://doi.org/10.1787/9789264267787-en.
Access to justice principles and promising practices
Access to legal and justice services, like health services, is a complex concept. Given the relative paucity of empirical evidence about which interventions result in effective or meaningful access to justice, decision-makers rely on a range of guiding principles, indicators and other criteria to guide the policy development process. These criteria integrate theories about access to justice and can be seen as predictors of, or proxies for, “what works”. Criteria for what works can also be derived from emerging promising practices in promoting accessibility and people-centricity of legal and justice services.
Many accesses to justice initiatives across OECD countries are framed within the context of broad guiding principles that provide coherence to reforms and shape indicators and criteria for success. The current dialogue on the Sustainable Development Goals (SDG) agenda “provides a unique opportunity to expand on the indicators proposed in such context and create a comprehensive set of indicators measuring the accessibility, availability, acceptability and quality of justice and the systems that support its delivery.” It also offers an opportunity to incorporate the people-centred focus both in measuring accessibility and delivery of legal and justice services.
The vast number of access to justice principles and the survey of promising practices can be synthesised into seven people-centred design criteria:
1. accessibility
2. availability
3. prevention, proactivity and timeliness
4. appropriateness and responsiveness
5. empowerment
6. equality and inclusion
7. outcome-focus and fairness.
These principles can be understood as operating along the justice chain. Equality and inclusion, accessibility and availability are the foundation and set the underlying policy orientation. People-centred legal and justice services also focus on the qualitative aspects of service design. People-centred legal and justice services prioritise proactively prevention and timeliness and are appropriate and responsive to needs. These services respond to the legal needs that are identified, measured and mapped and are designed to promote empowerment and inclusion, and focus on substantive outcomes and fairness (Figure 5.2).
Some of these criteria and the way they are defined and utilised by various entities are derived from the justice system or legal service provider considerations and priorities rather than focusing foremost on a people-centred perspective. An attempt is made to reframe the principles and criteria to ensure they are people-centric.
By definition, principles are stated at a high level of abstraction and these can be adapted by countries to suit the local context. Examples of good practices drawn from research reports and programme evaluations help to make the principles more concrete and provide examples of strategies and indicators that align with them.
Figure 5.2. Design criteria for people-centred legal and justice services
Equality and inclusion
People-centred legal and justice services extend beyond the requirements of a fair and effective justice system to larger societal objectives whether framed as inclusive growth or substantive equality, poverty reduction, social justice and social inclusion. By definition, the normative core of access to justice is equality and social inclusion. This is manifested in SDG 16 which recognises the connection between legal empowerment and development and especially in Target 16.3 to “promote the rule of law at the national and international levels and ensure equal access to justice for all”. Legal and justice services would be seen as “working” when they are provided on the basis of equality and inclusion and when they contribute to greater social inclusion and equality.
Legal and justice services can promote social inclusion by targeting the resolution and identification of broader issues which may be the cause of specific legal problems. Service providers whose mandate includes wider legal advocacy goals in addition to providing legal assistance are one example.
Equality and inclusion as guiding principles also require legal and justice service providers to pay attention to the specific needs and experiences of vulnerable and marginalised groups. People-centred services need to be based on knowledge about who they are designed to service and pay attention to the legal needs of particular groups of individuals. Otherwise, these services run a serious risk of reinforcing barriers for vulnerable groups rather than reducing them. For example, the delivery of legal and justice services through information and communications technology (ICT) may create carriers for low-income earners.3
As discussed in Chapter 3, the Law and Justice Foundation of New South Wales (LJF of NSW) in Australia conducted legal needs surveys as part of its broader programme, which also included the identification of expressed need (through the collection and analysis of legal assistance service provision data) and in-depth targeted studies of particularly disadvantaged groups, including older people, homeless people, people with a mental illness and prisoners. In some countries, targeted legal service and justice services are available for these groups. One Australian example is the Homeless Persons Legal Service Clinics, which is found to generate a range of positive impacts, such as improved contacts between clients, lawyers and courts, clients reporting being better “informed about their legal rights and options, and having addressed legal issues that are directly or indirectly related to their homelessness, feel better and less distracted about moving forward generally.” This type of programme was found to be generally accessible to the target group (Smith, 2011[15]).
Many countries, including Germany, Iceland, Ireland and the United Kingdom make legal information available in a number of languages or in a range of accessible formats, including audio or video formats, or via telephone lines. Spain launched a service addressed to persons with hearing and speech disabilities. Users can download the application “Texmee” which enables communication with the Ministry of Justice via text message in real time.
Many legal service providers make their services available to vulnerable or marginalised groups. For example, in Japan services are available to assist foreigners (translation provided) (Immigration Bureau of Japan, n.d.[16]). Most European countries provide specialised legal assistance to refugees and migrants. Australia, Canada, New Zealand and the United States all have specialised courts, other justice services, and legal assistance and legal aid services dedicated to meeting the needs of indigenous persons. For example, evaluation of the Community Court pilot in Kalgoorlie (Australia) showed that specialised court processes, which were designed to be relatively informal, with a rehabilitative focus and to appeal to the Aboriginal community, contributed greatly to increasing the cohesiveness of the Aboriginal community within Kalgoorlie. The majority of involved stakeholders felt that the tailored Community Court process resulted in an experience that is more meaningful and culturally appropriate. The pilot was found to improve the relationship between the court and Aboriginal people and was thought by some to have led to better access to court services (Aquilina et al., 2009[17]). Sharing knowledge, ideas and experiences has been an important part of a learning process in Canada to move towards reconciliation with Indigenous people (Box 5.4). Recently, the province of Nova Scotia opened a special court in Wagmatcook First Nation that incorporates indigenous restorative justice traditions.
Box 5.4. Reconciliation with Indigenous peoples in Canada
In partnership with Indigenous peoples and the provinces and territories, Canada is moving to adopt culturally relevant laws, policies and practices that respond to the needs of Indigenous peoples. In some cases, jurisdictions are working with indigenous communities so that they recover ways of governing themselves including fostering Indigenous legal practices and principles into their approach to justice. There are many examples throughout the country where elders are being included in proceedings and traditional elements such as prayers, smudging ceremonies and blanketing ceremonies have become elements of the process.
Source: Department of Justice, Canada.
Meeting the legal needs of women
The OECD equal access to justice work has a particular focus on identifying good practices with respect to meeting the legal needs of women and girls to advance gender equality, inclusive growth and sustainable development. This section provides an overview of some of the barriers to women’s access to justice and promising practices design to overcome these barriers. To some extent, it can be seen as a case study of approaches to ensuring equality and inclusion in the design of people-centred legal and justice services that may be relevant to strategies to respond to the particular needs of other vulnerable or disadvantaged groups.
A full appreciation of the requirements of both formal and substantive equality is required as a lack of understanding of the two undermines adoption of gender-responsive measures into service design. Formal equality requires that laws, rules, processes and institutions should not exclude individuals by making reference to personal characteristics that are arbitrary, such as race, socio-economic class, gender, religion and sexuality. Ensuring women’s equal access to justice in substantive terms goes beyond this formal requirement and means taking into account and addressing the multiple and complex “jigsaw of obstacles” to justice including socio-economic barriers (fear and shame, lack of knowledge of laws and procedures, economic dependence and care duties, gendered impact of austerity measures) and legal and procedural barriers (lengthy and costly procedures, discriminatory practices, judicial stereotypes) (Council of Europe, 2017[18]).
Broader policy perspectives can play a significant role in tackling inequalities in the sector. Several countries have introduced specific public policies on gender equality in several countries, i.e. national action plans, gender-sensitive practices in state agencies and ministries. Many international instruments have also been adopted, i.e. World Bank Gender Equality Strategy; Council of Europe Gender Equality Strategy; 2015 OECD Recommendation on Gender Equality in Public Life and 2013 OECD Recommendation on Gender Equality in Education, Employment and Entrepreneurship. These action plans can assist in designing women-centred legal and justice services.
Flowing from the general point that people-centred legal and justice services involve putting people’s needs at the centre and following them throughout the design, delivery and evaluation of services, women’s specificity must be integrated across the continuum of services. A gender equality perspective must be integrated into the justice system as a whole: from reporting/initiating a legal process to the execution of judgments, including data collection at each stage of the justice pathway (Marchiori, 2015[19]). It appears crucial to get gender and diversity on board in access to the justice policy framework, including access to the justice system and system of governance – judiciary, legal professions, etc. In this regard, the justice sector may be useful in terms of promoting gender equality and gender development (IDLO, 2013[20]). On the other hand, access to justice for women may not only reduce inequalities but also improve the quality of the whole justice system. Gender gap analysis can provide important insights with high significance for all types of diversities.
Equality and inclusion require that legal and justice services are designed on the basis of evidence-based measures of the legal needs of women. For example, Columbia is using desegregated data from national legal needs survey to inform its overall gender equality strategy. Women’s dissatisfaction is highest in the area they consider to be their greatest legal need (family matters). Women experience a range of unmet legal needs, particularly in the following areas: healthcare, family issues, felonies, problems with neighbours, housing but also in education, ownership of economic assets, access to social and welfare benefits, employment, gender-based violence, political participation, etc.
Over the course of the OECD roundtables, a consensus emerged that there is lack of gender-disaggregated data to inform the design of legal and justice services to ensure that women are served on the basis of equality and inclusion. There is a need for engendering data collection and analysis as confirmed by a number of international actors (World Bank, European Agency for Fundamental Rights [FRA,] Council of Europe, UN Women, UN Economic and Social Council [ECOSOC], Committee on the Elimination of Discrimination against Women [CEDAW], OECD). To date, the main focus is on the supply side and factual data while the demand side and perception data are collected less often. The following areas have been highlighted as potential priorities for data collection:
Mediation and ADR (on a comparative scale).
Women participation to access to justice policy design.
Rulings enforcement (potential multiplying effects on inequalities).
Access to legal aid and counselling.
Case outcomes.
Attrition (in other than rape cases).
Position of women in the justice profession and gender training for justice professionals (OECD, 2017[21]).
Difficulties in filling the gaps in gender data have also been identified. Some of the ways to overcome these difficulties include:
Focus on the de facto situation – the reality of women’s lives in different country contexts with a view to unearthing “sticky” biases and patterns of discrimination persisting even when de jure equality is achieved.
Correlate justice-related data with demographic-economic-socio-cultural data (e.g. geographic location of courts with availability of means of transportation to women).
Contextualise quantitative data through qualitative research (OECD, 2017[21]).
In order to address the legal needs of women and assist in overcoming the barriers identified above, legal and justice services may need to be designed to specifically target women. For example, these can take the form of targeted legal assistance in form of legal aid, legal counselling and mediation services. For example, in some Australian and Canadian jurisdictions, specialised legal assistance services are provided to women experiencing relationship breakdown and/or violence.4 Other legal advocacy services focus on systemic gender equality issues rather than services to individuals.5
There is also a room for gender-sensitive services, such as specialised domestic violence courts, special support and sensitiveness to victims of gender-based violence, sexual crimes, etc. Examples include Women’s Centres in Chile (Box 5.5).
Box 5.5. Women’s Centres in Chile
In 2000, SERNAM (Servicio Nacional de la Mujer y la Equidad de Género) launched the “Centres for Integral Care and Prevention in Domestic Violence”, instances formed by interdisciplinary teams throughout the country, providing specialised care to those who live interfamily violence. Since 2005, the Centres for Integral Care and Prevention of Interfamily Violence have been called “women’s centres”, maintaining their purpose and objectives. There are currently 103 Centres distributed in the 15 regions of the country. The objective of the women’s centres is to contribute, at the local level, to reduce violence against women, especially that which occurs in the relationships of partners, through the implementation of a model of integral intervention with emphasis on community prevention and attention to women who are victims of violence.
The women’s centres operate under the recently created Ministry of Woman and Gender Equality.
Source: Ministry of Woman and Gender Equality, Chile (n.d.[22]), Servicio Nacional de la Mujer y la Equidad de Género Programa Centros de la Mujer.
Gender equality in accessing justice is also hindered by legal and justice system personnel at all levels that have biased attitudes and behaviour towards women and through stereotyping and discriminatory practices. Active steps may need to be taken to overcome these forms of discrimination are often unintentional and the individuals and bodies engaging in these practices may not be aware of their negative impact. Ensuring the gender-sensitivity of legal and justice services involves training, increased gender balance and diversity in legal and justice sectors, and improved data collection (Box 5.6).
Box 5.6. Steps towards gender-sensitivity of legal and justice services
Training initiatives within the justice sector to improve awareness of the specific legal needs of women and girls, particularly those who are most vulnerable – the impact of gendered stereotypes within the justice system could be perceived both as a barrier to accessing the courts and receiving a just outcome. There exists the need for training initiatives within the justice sector that highlight specific legal needs, particularly of vulnerable women and girls. These training initiatives would ensure that members of the judiciary, legal professionals, court officials and law enforcement officers are better equipped to identify biases, tackle stereotyping and eliminate discriminatory practices both within the courtroom and in the dispensation of justice.
Increased gender balance and diversity – the gender balance and diversity within the judiciary and justice sector can serve as a source of improved access to justice for all women. There is an ongoing disparity between the number of male and female judges across higher levels of the judiciary, in both developed and developing countries. Closing this gap, particularly in the senior courts, would promote greater balance in legal decision-making and ensure women have a voice in high-level, ground-breaking legal cases. It is believed that parity requires both a concerted effort across the justice sector to support women in all stages of their legal careers and a greater emphasis on identifying diverse candidates for judicial appointments. Policymakers should take an active role and consider the implementation of explicit targets or quotas to fast-track the process if the situation does not change.
Improved and disaggregated data collection, analysis and monitoring of women’s legal needs – the improved data collection, analysis and monitoring of women’s legal needs is necessary for progress. Regular and accurate gender-disaggregated data collection is needed to identify specific legal needs and ensure that programmes and initiatives are targeted effectively. The collection of data is also important for the effective evaluation of existing measures and the illustration of the links between access to justice and gender equality. In advancing these important issues, national governments could be identified as integral to utilising the knowledge gained in their respective territories and disseminating their findings. There is great value in ongoing discourse and enhancing the broader understanding and awareness of the relationship between equal access to justice, gender equality, inclusive growth and sustainable development.
Source: OECD (2017[23]), Highlights, Towards Gender Equality Before the Law, International Women’s Day, March on Gender 2017.
Accessibility
Accessibility is a foundational principle that underlies all initiatives to ensure service meet the needs of individuals, families, communities and small and medium-sized enterprises (SMEs) thereby fostering inclusive growth and sustainable development. Accessibility is closely related to the principle of equality and inclusion. People-centred legal and justice services should be designed to overcome the range of barriers to access at work in each country. Common types of barriers include:
Cost-related barriers (e.g. direct cost of services, fines, time, transportation).
Structure-related barriers (e.g. formality and language, views of justice, court buildings and court personnel).
Social barriers (e.g. lack of information, perceptions of bias).
Specific barriers faced by at-risk groups (e.g. women, younger persons, older persons, migrants, ethnic minorities, linguistic minorities, persons with disabilities) (Australian Government, 2009[24]).
The first step toward ensuring accessibility is understanding barriers from a people-centric perspective. A range of strategies and techniques can be then employed to overcome these barriers in a responsive manner.
Information and communications technology (ICT) is increasingly seen as a key enabler to overcome a range of barriers and make legal and justice services more accessible (OECD, 2015[25]). ICT is used to automate current processes and make them more efficient and accessible to citizens and businesses, create new pathways to justice and provide direct access to justice services. After a slow start compared to other sectors, new tools and applications are now appearing at a rapid rate. Five specific developments can be identified:
interactive web initiatives
integrated legal assistance services
online dispute resolution (ODR) and telephone-based ADR services
increased use of technology in courts and tribunal
“one-stop shops” for government services.
There is evidence that people-centred strategies employing telephone and audio-visual technology, the Internet and software applications help to overcome some barriers to accessing justice and have the potential to create justice system efficiencies (Smith, 2014[26]; Staudt, 2009[27]; Productivity Commission, 2014[28]). For example, the United Arab Emirates recently implemented a smartphone application allowing to follow judicial cases or make an inquiry about a document6 and the Chile Atiende is a multi-service public portal. ICT, even simple technologies such as telephone lines, can be used to make the justice system more accessible as demonstrated in the evaluation of telephone-based legal assistance in Pennsylvania. Another important initiative is the move towards e-courts that facilitate initiating claims, filing of documents, tracking of court dates on line which is a priority for French and Korean courts (Box 5.7). Technology may be especially beneficial when integrated in concert with the simplification of procedures, such as simplified e-court procedure for cash benefits in Poland.
Box 5.7. ICT enabled accessibility to courts in OECD countries
In Korea, the Supreme Court’s IT support centre for the judiciary provides technological and professional support to the courts and registration offices nationwide. Among other activities, the centre provides an e-litigation system: the Electronic Case Filing System (ECFS). This system allows litigants and their attorneys to file and manage cases and allows access to court information and procedures electronically. All court documents, documentary and digital evidence can be filed without visiting the courts. Thus, the parties will be able to use ECFS to promptly check the current status of the proceedings. Judges and clerks have also the possibility to check cases’ status and to view case records. Moreover, they have access to an Integrated Case Management system.
In the United States, there is telephone-based legal assistance provided by Pennsylvania legal aid programmes, funded under Pennsylvania’s Access to Justice Act. Evaluation evidence suggests that advice and brief services are not only effective but essential. For example, the client survey revealed that:
One out of every three recipients of advice-only or brief services reported positive outcomes that were tangible and measurable. For example, they were granted custody of their children, obtained the public benefits they applied for or avoided a crisis such as eviction or foreclosure.
A majority of recipients met some or all of their goals in seeking legal help. They were able to consult a lawyer or paralegal, find out what their legal rights were and get an expert perspective on what they should do about a legal issue they faced.
Almost half of the cases produced complete or partial solutions to clients’ legal problems.
Six out of ten recipients achieved results they deemed favourable. In some cases, the result was dealing with a major crisis, such as a suspension of heating fuel delivery in the midst of winter. In other cases, it was the resolution of a lingering dispute, such as repairs promised by a landlord but never delivered.
Eight out of ten recipients reported that the legal aid programme was helpful to them. Often all that clients desired was simply to talk with a legal advocate to learn the legal implications of the situations they were facing and to get advice about what to do.
Moreover, the client survey confirmed that when these services are delivered by telephone, they are not only effective but can also provide more convenient access to some services and enable a sharp increase in the number of individuals getting legal help than would be possible if delivered exclusively through in-person methods with the same amount of resources.
These findings provide evidence that from a client’s perspective, telephone-based advice and brief services appear to provide not only broader and more convenient access to services but real solutions to legal problems and outcomes that the majority of clients deem favourable, even in some cases where the facts of the situation are not favourable to the client’s preferred outcome.
Sources: Chile Atiende (n.d.[29]), Homepage, https://www.chileatiende.gob.cl/ ; Smith, K., K. Thayer and K. Garwold (2012[30]), Final Report on the Assessment of Telephone-Based Legal Assistance Provided by Pennsylvania Legal Aid Programs Funded Under the Access to Justice Act, The Resource for Great Programs, Inc.
The emerging use of technologies, such as online dispute resolution (ODR), social media, cloud computing, smartphones, mobile software applications and mobile computing, is also showing good results (Wolf, 2012[31]; Cabral et al., 2012[32]) (Box 5.8). ICT is also being employed to provide online tools to assist people through:
aggregating information from a range of websites7
providing comprehensive advice and referrals8
the diagnosis of legal problems and possible steps to take to address them9
guided interviews (Staudt, 2009[27])10
guided pathways leading the user interactively through difficult issues11
guides to procedures before specific courts and tribunals12
programmes that assist a user to build court forms with a visual interface
automated document assembly13
assisting with the presentation of evidence.14
Box 5.8. Online dispute resolution (ODR) platforms in Europe, the United Kingdom and the United States
To facilitate access to justice for citizens settling disputes with a low financial value, in consumer disputes and other types of conflicts, more and more countries are introducing ODR platforms. For example, in the United Kingdom, Claims Portal (https://www.claimsportal.org.uk/) has been developed as an electronic tool to process low-value personal injury claims in road traffic accidents and low-value personal injury case claims (employers’ liability and public liability). With the use of this portal, citizens who have for example been injured in a car accident can submit their claim for financial compensation through the claims portal.
In the field of consumer disputes, the ODR mechanism introduced by eBay can be found as one of the most successful best-practice examples. The eBay ODR solution offers two types of services for solving a dispute between the buyer and the seller of a product: a free web-based forum which allows users to attempt to resolve their differences on their own and a solution where a mediator is requested.
At the level of the European Union, an EU directive has been introduced for solving cross-border consumer disputes through the introduction of ADR and ODR platforms. As a result of this, European citizens with a consumer problem (e.g. concerning the guarantee of a product) can settle their disputes through a network of European Consumer Centres (ECC-net, n.d.[33]).
A different form of ODR concerns the use of video conferencing solutions by mediators in settling disputes between parties. Instead of situations where parties visit a mediator’s office, they can have access to a mediator with the use of online tools. The most simple and low-cost solution for online mediation is the use of Skype for mediation sessions, whilst there are also mediators applying more advanced video conferencing tools to interact with parties.
There is evidence that ODR is an effective strategy for increasing access as long as it is appropriately targeted and user evaluations have given ODR positive ratings both in terms of process and outcome (Gramatikov and Klaming, 2011[34]). The main advantage of ODR is simplicity and the potential to save both time and monetary costs. ODR may also reduce stress and negative emotions associated with face-to-face resolution processes (Gramatikov and Klaming, 2011[34]). These services are also increasingly being used in by courts and tribunals in commercial and consumer matters.15 For example, Consumer Protection BC has a self-help online tool for consumers to settle disputes with businesses. This is a relatively simple form of ODR that is delivered by email.16 One of the benefits of ODR is that the platforms offer a guided opportunity to prepare for the mediation process through the intake forms. Research has demonstrated that parties in employment disputes who use this function on the Juripax platform are better prepared for mediation, are more likely to engage on a more level playing field, feel more empowered to make decisions on their own, engage in a more resolution-focused mindset, and achieve time and costs savings of up to 30% (JURIPAX, n.d.[35]).
In Poland, the XVIth Civil Division of the Lublin Regional Court (now the VIth Civil Division of the Lublin-West Regional Court) was inaugurated on 4 January 2010. It is known as the “electronic court” (e-court) and considers cases under an electronic writ of payment proceedings. It covers “the whole territory of Poland regardless of the defendant’s domicile or seat” and is “competent to examine civil pecuniary claims (including commercial and labour claims)”. It lacks competency over non-pecuniary claims and family law claims. As of 1 October 2011, 2 million lawsuits were lodged in the e-court and in some 1.6 million cases, payment orders have been issued (Ministry of Justice, Poland, n.d.[36]). Fees for online-reviewed cases are allegedly three times lower than for traditional courtroom proceedings (Miguel-Stearns, 2010[37]). This system also exists in Austria,17 Germany18 and in the United Kingdom.19
Sources: UK Civil Justice Council (2015[38]), Online Dispute Resolution for Low Value Civil Claims, Civil Justice Council; ECC-net (n.d.[33]), European Consumer Centres Network, https://ec.europa.eu/info/live-work-travel-eu/consumers/resolve-your-consumer-complaint/european-consumer-centres-network_en; Gramatikov, M. and L. Klaming (2011[34]), “Getting divorced online: Procedural and outcome justice in online divorce mediation”, Tisco Working Paper Series On Civil Law And Conflict Resolution Systems, Tilburg University; JURIPAX (n.d.[35]), Online-Mediation, http://www.juripax.com/EN/odr.php; Ministry of Justice, Poland (n.d.[36]), E‑court Basic Information ‑ EPU, https://www.e‑sad.gov.pl/Subpage.aspx?page_id=35; Miguel-Stearns, T. (2010[37]), Poland e-Courts Gain Popularity (blog), Yale Law School.
Adoption of ICT tools is sporadic, however, and their use is far from widespread, also linked to significant investments required for their implementation. Furthermore, “digital delivery” revolution might not be universally accessible (Smith, 2014[39]). Careful planning is needed to prevent technological innovations from creating or reinforcing existing barriers to equal justice. There is a risk that these reforms may raise the “spectre of a digital divide that institutionalises a two-tiered system incapable of delivering appropriate justice to low-income persons” (Cabral et al., 2012[32]). Even with the dramatic rise in digital access across income levels, access to technology cannot be equated with “digital literacy and the capacity to identify best forms of assistance” (Smith, 2014[39]). Implementing technological solutions with a clear strategic purpose is essential as a risk of scarce resources being wasted is possible. Civic engagement can also provide important opportunities to co-design services to ensure effective service design and responsiveness.
The integration of ICT into the design and delivery of legal and justice services is just one mechanism for overcoming barriers. Other approaches will need to be harnessed to ensure full accessibility. Another important dimension is ensuring that the laws, as well as legal and justice services, are accessible. Complexity and formality are barriers to accessibility. Access to justice interventions should “work to reduce the net complexity of the justice system. For example, initiatives that create or alter rights, or give rise to decisions affecting rights, should include mechanisms to allow people to understand and exercise their rights”. Substantive law reforms can be extremely effective in reducing barriers to accessing justice. In Canada, for example, the development of child support guidelines has greatly simplified the laws concerning parental responsibilities following separation and divorce thereby reducing barriers to accessing justice in these cases.
Connecting legal and justice needs and the availability of legal aid appears to be a challenge in many countries. This issue is partly related to low, or even declining, public legal aid financing and coverage, set against a growing number of people eligible for legal aid in many countries; in some jurisdictions, legal aid is mainly available in criminal matters, less in family and other civil matters, although there is a wide variation across the countries. There are also few countries providing legal aid for disputes addressed by alternative dispute resolution (ADR) services. At the same time, some studies point to the economic and business case for funding legal aid: not only did investment in legal aid services foster economic growth by increasing jobs, reducing work days missed due to legal problems, creating more stable housing, resolving debt issues and stimulating business activity at the local level (CBA, 2013[10]), countries are looking to review and adjust legal aid policy settings. For instance, Scotland recently completed a government-established independent review of legal aid. In New Zealand, the review targets regulatory review with narrow legislative changes and wider access to justice component, and the report will include advice on whether the legal aid policy settings should be adjusted (Box 5.9). Israel is considering legal aid for involuntary commitment and for victims of murder or manslaughter crime (family members).
Box 5.9. Legal Aid review in New Zealand
The Ministry of Justice in New Zealand has undertaken a review of legal aid policy settings. This is the first three-yearly cabinet-mandated review, with a report to be provided to the Minister of Justice in October 2018. The scope of annual reviews includes targeted regulatory review with narrow legislative changes and wider access to justice component. The report will include advice on whether legal aid policy settings should be adjusted.
Source: Ministry of Justice, New Zealand.
To facilitate navigation across multiple (potential) justice pathways, some countries are developing simple gateways into the system of legal service or one-stop shops (Box 5.11; see also Chapter 6).
Box 5.10. Service d’accueil unique du justiciable
In France, the SAUJ (Service d’accueil unique du justiciable) is a new type of courthouse front desk with an enlarged competency to better meet people’s needs. The SAUJ has three goals: provide all citizens with the same quality of general legal and justice information, provide personal information about the events in each proceeding and simplify the access of legal proceedings thereby making some procedures easier to access without legal representation. France’s justice website, Portalis, serves a complementary function to the SAUJ. Initially serving as a general information portal, it expanded to become a portal for the SAUJ, allowing individual parties to access information about their cases on line. Future expansion plans include enhanced online access for citizens, serving as a “virtual office” for judges and clerks, extended electronic communications in justice matters and partnerships with other service providers. Further down the road, it is envisioned that by 2021, Portalis will provide online replacements for nine types of legal applications currently made in person, and by 2022, the total dematerialisation of civil justice.
Availability
Traditionally availability was determined from a formal, justice system perspective with a focus on the availability of formal mechanisms such as courts and tribunals. From a people-centric perspective, availability is a broader concept extending to the continuum of the legal and justice services discussed earlier in this chapter.
From this perspective, availability can be seen as encompassing five main components:
1. Legal framework – the rights and entitlements, regulations and safeguards defining the space within which citizens and the state can negotiate access to justice and justice outcomes.
2. Justice machinery – the institutions and human resources essential to the provision of justice services.
3. Legal services – the elements that enable people to seek remedies through the justice system.
4. Understanding of legal and justice needs – the understanding of the diverse legal and justice needs of the population.
5. Sound enforcement machinery.
Strategies to ensure that these components are available include assessment of legal and justice needs for both the general population and for vulnerable and disadvantaged groups and the design of a range of services that can be tailored to these needs. A people-centred perspective recognises that there are various pathways to justice and these components should “mirror the unfolding of the justice chain” as it is experienced by individuals, families, communities and SMEs. This may call for the development of an expansive “toolkit”, which could include a range of possible service types and strategies to employ or adapt to meet the particular legal need to be addressed. For example, disadvantaged people and groups, who are a priority for certain legal assistance services, tend to have low capability, which means that they are often less able to use self-help and unbundled services effectively, and therefore more likely to require more intensive assistance to resolve the legal problems. Designing and implementing a continuum of legal and justice services as discussed above is a good practice fulfilling the availability criteria.
Prevention, proactivity and timeliness
People-focused legal and justice services aim to intervene at an early stage of legal problems and to facilitate the prevention of legal problems. This requires a shift away from formal mechanisms for dispute resolution and towards meeting the “upstream” needs of individuals, families and SMEs for timely assistance. One possible analogy is that in many OECD and partner countries, legal and justice services provide an ambulance at the bottom of a cliff, whereas what often seems to be needed is proactive services and a focus on early resolution that act as a stronger barrier at the top of the cliff to prevent people from falling off when legal problems remain unresolved.
The National Centre for Preventative Law is housed at the California Western School of Law and is dedicated to preventing legal risks from becoming legal problems. One aspect of this work is fostering “multidimensional lawyering” which broadens the traditional focus of lawyering as advocacy to include proactive and preventive roles, skills and mentalities.20
In Australia, the Family Law Violence Prevention Legal Services integrate prevention and early intervention services into the provision of legal aid. These include, for example, working with vulnerable groups of women (in particular young Aboriginal women), programmes designed to promote social and emotional well-being, facilitate community networks to reduce social isolation, raise awareness about family violence and its underlying causes and impacts. Finnish municipal councils21 and the Icelandic Debtor’s Ombusdperson22 provide financial and debt advice services which help people to cope with money matters, potentially preventing more serious legal and financial problems.
In the United States, the foreclosure mediation programme aimed to give homeowners who were able to save their homes the opportunity to do so and to provide them with a process that treated them in a dignified way. The mediation programme helped homeowners to submit their packet and facilitate the preparation of the paperwork and interaction with lenders. The programme was found to help between 50% and 76% of homeowners who complete the respective programmes reach an agreement to keep their home and almost all reported being treated fairly and with respect (Shack, 2015[40]).
Traditionally, most justice system resources were spent on formal court procedures with the trial at its apex. Many courts and tribunals now provide alternative procedures in both civil and criminal matters including judicial mediation, conciliation and judicial settlement conferences. These initiatives aim to assist people to resolve their disputes at an earlier stage. All courts in Denmark, with the exception of the Supreme Court, have since 2008 offered mediation in civil, probate and enforcement cases. On 1 July 2014, new rules were introduced that are intended to encourage judges and attorneys to focus more on settlement and mediation, and efforts are being made to increase awareness and use of mediation.
The mandates of ombuds offices and some administrative tribunals include procedures to prevent future legal disputes. In other cases, mediation and other ADRs are made available as standalone justice pathways. New Zealand provides a number of specialised resolution services including to assist people who have disputes related to the building of their homes and employment relationship problems.23 Belgium provides a range of specialised mediation centres such as the Brussels Business Mediation Centre, Telecommunications Mediation Centre, Consumer Mediation Service as well as Electronic Consumer Dispute Resolution (ECODIR) which helps consumers and businesses prevent or resolve their complaints and disputes on line using a quick, efficient and affordable service. In British Columbia, Canada, the new Civil Resolution Tribunal provides assisted online dispute resolution for a range of small claims matters.24
Proactive services are critical to improving access to justice for poor and disadvantaged individuals and groups. Recent studies have emphasised the importance of investing in more effective front-end services and early intervention (CBA, 2013[10]; Action Committee on Access to Justice in Civil and Family Matters, 2013[41]). Evidence-based best practices that incorporate proactivity criteria include: well-designed outreach; intake; diagnosis and seamless referral services. In turn, the following practices can facilitate intake, diagnosis, referral and outreach:
Gateways to legal services that are simple, well-signposted and accessible, whatever their form.
A systematic approach to diagnostic triage and tailoring of services by implementing standard tools and procedures to identify client need and capability.25
Screening: comprehensive client intake, diagnostic triage and referral to appropriate legal services or at least a preliminary legal diagnosis (this was the core of the idea of the former community legal aid centres and networks in the UK).
Tools for easy client identification, including standard checklists and questionnaires26 (legal health checklists like the Halton Community Legal Service (Currie, 2015[42]); I-Help27).
Software packages to identify and prioritise legal matters, streamline referral and flag client capability issues.
Indicators to streamline intake process and/or diagnostic triage and referral.
Diagnostic expertise: whether or not unbundled services are enough to meet a client’s needs, a determination which often involves professional expertise (Pleasence et al., 2014[2]).
These intake, diagnostic and referral tools work most effectively if employed actively, not simply passively when a client contacts the legal aid service provider.
A proactive attempt to reach people experiencing legal difficulties through outreach is an equally critical component (Currie, 2015[42]; Pleasence et al., 2014[2]). Outreach is sometimes described as “putting assistance” in people’s paths through, for example, co‑location of services in community centres, courts and hospitals. Additional features of successful outreach services include:
Pre-planning and needs analyses (in that they reach clients who otherwise would not have received legal assistance).
Linking with clients (identifying ways to actually connect with “hard-to-reach clients,” including location in places that can be easily reached [e.g. by public transport] and often visited by potential clients, such as welfare, medical and homelessness centres, indigenous and mental health services, child and family centres and prisons).
Effective referral pathways, including building relationships with key “problem noticers” such as staff from various social agencies and community members who may notice a client has a legal problem and refer them to the outreach legal service (Box 5.11).
Tailoring service delivery to people with complex needs (e.g. building familiarity and trust, providing flexibility, timely services, consistency, confidentiality and communicating effectively with clients) (Digiusto, 2016[43]).
Evidence demonstrates that effective outreach is targeted to meet priority legal needs and fill service gaps, engage clients, provide appropriate service delivery (taking into consideration the specific needs and capabilities of the target group), be client centred and provide strong referral pathways (Pleasence et al., 2014[2]). Indeed, a systematic review of evaluations conducted by the NSW Law and Justice Foundation showed that “outreach legal services can reach clients with complex needs and who had not sought assistance before from mainstream legal service providers, or who otherwise would not have received legal assistance. However, to achieve these outcomes, outreach services need to be appropriately located and connected with target groups and their support agencies.” The outreach legal services have also been found to provide positive outcomes for clients, including people with complex needs, in a wide range of areas, including housing and tenancy, management of fine- related debt and driving restrictions, access to children and other family matters, access to welfare payments. Advice provided through outreach services in many cases was found to prevent legal issues from escalating in seriousness, which occurs when problems remain unaddressed, although further research is needed in this area.
Box 5.11. Effective location of legal outreach services
The Review of Evaluations of legal outreach services conducted by the NSW Law and Justice Foundation identified the following successful outreach locations as places:
where there is currently a gap in legal service delivery to the target groups
which the target groups are familiar with and trust, such as places they already access
where (to ensure potential client numbers) there is a flow of target-group clients through the service. For instance, more clients access a community centre or welfare agency on a given day than a hostel which has a small number of residents staying for several months
that are physically accessible to target clients, including clients with disabilities and clients living in remote or regional areas
that have private spaces in which clients and advisors can meet and discuss confidential issues.
The review also indicates that to most effectively use the host agency or community members as a source of referral, the following needs to be in place:
Initial and ongoing relationships need to be forged between the host agency (and/or other referring agencies) and the outreach legal service.
“Problem noticers” benefit from training by the outreach service in how to identify whether clients have relevant legal issues and what the outreach service can do for their clients.
The best sources of referrals are sources that are already trusted by the client group, such as case workers, community members or friends.
Source: Digiusto, E. (2016[43]), “Effectiveness of public legal assistance services”, Justice Issues, Vol. 16, Law and Justice Foundation of NSW.
One benefit of effective outreach is that it can lead to the identification of bottlenecks and areas requiring modernisation of the legal framework; for example, in medical-legal partnerships (Box 5.12). An evaluation of a paralegal programme also showed that paralegals were helping to solve legal cases and emerging problems, and provide broader legal advice thereby enlarging the pool of problems accessing the justice system.
Muchany recent access to justice reports emphasise the importance of early intervention in contributing to positive outcomes and contributing to efficient, less costly services (CBA, 2013[44]). Early intervention can provide legal services before a legal crisis hits and prevent escalation, ideally assisting in breaking the cycle of disadvantage. To contribute to positive outcomes, legal and justice services must not only catch a problem early, but must also prevent escalation of the problem: “If early intervention services focus on providing less intensive services early, there is a risk that these services will not be enough to prevent the escalation of issues for disadvantaged clients and later services will also be required for this target group.” (Pleasence et al., 2014[2]).
An Australian report (Pleasence et al., 2014[2]) highlights the question: when is early? Legal problems do not always follow a linear process and some issues arise suddenly. To link early intervention with stages in a legal process is to ignore the people-centred approach and maintain the traditional justice system focus. The report concludes: “A more inclusive framework may better take this approach – a and focus on the timeliness of assistance relative to the experience of the client rather than defining the effectiveness of the service delivery in terms of what may be an arbitrary point in the legal process.”
Timeliness promotes a people-focus, delivering services consistent with how people experience legal issues and how they seek help. One example of a promising practice in this regard is duty counsel in family matters, who are able to provide valuable and timely assistance at many stages of the legal process. Several evaluations showed that there is generally a high level of support for the expanded duty counsel model among clients and stakeholders. One study showed that a large majority of client survey respondents (80%) believed that they received quality service from the duty counsel lawyer. Some of the key cited advantages cited included file continuity (the practice of opening and maintaining written client files) which was seen to save time, improve the consistency of advice that duty counsel give to clients, and ultimately result in fewer delays in the court process. Another promising practice is to recognise patterns of legal needs that develop around transition points and provide legal assistance services to reach disadvantaged clients at those critical times (related to life cycle methodologies discussed above) (Pleasence et al., 2014[2]).
Box 5.12. Medical-Legal Partnerships
One example of effective outreach practices comes from Medical Legal Partnerships (e.g. in the United States, Canada), when legal services are provided in hospital location. For example, some of the outcomes of the evaluation of the medical-legal partnership for children suggest an overall increase in knowledge and trust between medical providers, social workers and attorneys, greater understanding and identification of legal issues and a high rate of referral for legal services, particularly by medical providers.
The study also reported that, as a result of the project, “many more families had access to community resources to which they were entitled. Examples of the kinds of resources accessed are: special education services in public schools; disability accommodations in the schools; in-home nursing care; subsidised housing; and government benefits. Data from legal cases that have been closed to date indicate that patients are receiving legal assistance in the following areas: 20% government benefits, 18% housing, 17% education, 14% Medicaid, 11% family law, 6% consumer rights, 6% other, 4% immigration, 2% disability rights and 2% private insurance.
Legal outcomes show that out of the 209 closed cases, 36 increased their income because they accessed a new benefit, increased an existing benefit or had a reduction in debt due to legal intervention. Findings from the subgroup of 24 families interviewed found that 8 of these families reduced their debt by reducing uncovered medical expenses or increasing the amount of benefits they were receiving. In addition, 35 families obtained needed educational services, 38 families improved housing conditions, prevented an eviction or obtained a housing subsidy and several families maintained custody of their children as a result of the legal intervention. Many of the families served have multiple legal needs and often more than one outcome was achieved as a result of the legal intervention”.
Source: Extract from Grossman, K. (2011[45]), Evaluation of the Medical-Legal Partnership for Children, MLPC Evaluation Report: Summary of Findings from Years One-Three, Community Engagement Initiative, University of Washington.
Appropriateness and responsiveness
Many statements of access to justice principles take a primarily justice system-centric stance in defining appropriateness, whereas the concept of responsiveness clearly encapsulates the importance of design services from the perspective of the individual user.
Appropriate legal and justice services are proportionate, simple and sustainable (Action Committee on Access to Justice in Civil and Family Matters, 2013[41]). The criteria of appropriateness incorporate efficiency, in terms of time and resources expended by both the justice system and by people who seek to access it. The justice system should be structured to create incentives to encourage people to resolve disputes at the most appropriate level. Legal and justice services are appropriate when they are provided on a timely basis and where early resolution is promoted whenever possible. Appropriateness also means that resources are directed to reflect how people access the system.
In many countries, small claims courts provide tailored and fast track procedures that are proportionate to the amount of money at issue. These are found to free up court time and resources, reduce backlogs and improve access to justice for people and SMEs (Harley and Said, 2017[46]). Indeed, the EU Eurobarometer survey found that the ability to carry out proceedings in writing and without a lawyer encouraged claimants to protect their rights (European Commission, n.d.[47]).28 Judicial mediation programmes are found to provide incentives for early resolution of disputes.
There is also increasing evidence that alternative dispute resolution (ADR) mechanisms (conciliation, mediation and evaluation), for instance in taxation, when used appropriately and respecting procedural justice, can save time and cost and may facilitate trust and acceptance of government decision making. It is also found that the faster and more efficient resolution of tax-related disputes may promote better relationships between government and taxpayers.29
Appropriateness and efficiency also mean addressing recurring problems on a systemic basis rather than over and over again in individual cases. Some legal problems are dealt with appropriately through law reform. Similarly, some legal issues “may be symptomatic of broader non-legal issues. The justice system should have the capacity to direct attention to the real causes of problems that may manifest as legal issues”. In OECD and partner countries, many ombuds offices have the mandate and power to address systemic legal issues. In Australia, Canada and the United States, community-based legal clinics provide legal aid for systemic litigation and law reform activities (Australian Government, 2009[24]).
Appropriateness incorporates the value of localised flexibility. The types and combinations of legal and justice services that will work depends on local circumstances. In some cases, “local” may refer to a neighbourhood, a rural versus urban setting or some other relevant spatial boundary. Canada’s Alberta Legal Services Mapping Project aimed at achieving access to justice for citizens through a co‑ordinated and holistic approach that closely takes into account local social conditions and needs as reflected by the “One Client, One Place” initiative. The receptiveness and participation rate was found to be significant. Participants had notably positive attitudes towards a service provider (Lieb, 2011[48]).
Increasing evidence from OECD and partner countries shows that in order to provide effective access to justice, legal and justice services need to be “personalised” or responsive to the individual and the situation. Tailored or proportional justice services include simplified court procedures and specialised ADRs, as discussed above.
Comprehensive legal services are best able to respond to the varying needs for assistance taking into account a person’s capabilities, the complexity of their legal issue or issues, and the severity of the potential impact of the problem. Information, education and minor assistance services can help many people address their legal issues and problems and resolve their disputes. However, this is not always the case: “international research has consistently identified that the most vulnerable are less likely than others to have the skills and psychological readiness to achieve legal resolution on their own or with minimal assistance. These clients will require more intensive support beyond information, education, advice and minor assistance” (Productivity Commission, 2014[28]).
For example, legal help hotlines were also found to be effective access tools, particularly where they are a “front end” not “dead end” service, integrated with full or partial legal assistance and representation services, and provide follow up (Smith, 2013[49]; Pearson and Davis, 2002[50]). The value of hotlines expands with the depth of service offered (Smith, 2013[49]). How services dovetail together is important in matching assistance with the needs and capabilities of clients. Dovetailing could ensure, for example, that legal advice is made available directly after community legal education or that outreach services have direct links to casework where additional assistance is required. For example, the evaluation of Family Legal Services of the Legal Services Society considered the continuum of family legal services (representation through legal aid, family LawLine, family duty counsel, out-of-court advice lawyers, aboriginal community legal workers and legal information outreach workers) and found that different types of services were effective in addressing different types of issues (Legal Services Society, 2012[51]). The evaluation found that services such as LawLine, Legal Aid Intake, community advocacy services and Family Justice Counsellors tend to be used by clients as front-end services (i.e. used earlier by clients).
An overview of development in legal assistance services concludes that there are efficiency gains to be made from ensuring that clients receive appropriate levels of support: “Resources are wasted both when levels of support are insufficient to bring about effective outcomes and when they are in excess of what is required” (Pleasence et al., 2014[2]). This, in turn, depends on an appropriate diagnosis of the situation and capability assessment discussed in the previous section.
Within a jurisdiction, this holistic, multifaceted approach may include a raft of strategies, such as self-help strategies for more straightforward problems and more able sections of the community, together with more intensive assistance strategies for disadvantaged people who are less able to resolve problems alone. Similarly, technology-based legal service delivery has the potential to broaden access through opportunities of scale, capital and centralised service delivery, but may be less appropriate for the needs and capability of more marginalised sections of the community. Thus, in any given jurisdiction, the suite of strategies which take account of differing need and capability can include:
legal information and education strategies
self-help tools
accessible legal services
community legal education and referral training for non-legal problem noticers, relevant to the legal problems of their clients
integrated legal services (able to assist with a range of legal problem types)
integrated responses to legal and non-legal needs, including networking and service partnerships
tailoring of services for specific problems
tailoring of services for specific demographic groups.
Empowerment
The empowerment criteria can be summed up as follows: “The system empowers people. It builds people’s capacity to participate, by managing their own matters and having a voice in the system as a whole”. Individuals are empowered to resolve disputes between themselves when appropriate, without recourse to the institutions of the justice system (Australian Government, 2009[24]). This criterion expands the view of the purpose of legal and justice services beyond assistance in resolving a legal problem, to include focusing attention and resources on preventing legal problems and disputes and helping to build resilience through post-resolution follow-up and support. People are empowered in their relationship to legal and justice service providers and with a greater ability to solve problems at an early stage.
Legal and justice services build empowerment through strategies that increase legal awareness, legal literacy, legal capability and trust and confidence in the justice system. Making legal information easily accessible is key. Most OECD and partner countries provide a wide range of legal information services in a large range of formats. What is important is ensuring that the type of information provided works for different types of clients. In Ireland, there are a variety of web-based sources of legal information including those offered by the national government, the Law Society of Ireland, the human rights organisation Free Legal Advice Centres which focuses on assisting people from disadvantaged groups, and specialised agencies such as Inclusion Ireland, a self-advocacy website assisting people with disabilities.30 In Israel, Pathlegal provides free online legal information and answers to common legal questions.31 The website also allows people to submit questions to a panel of lawyers. In Spain, the Administration of Justice Portal contains information about the judicial bodies in the civil, commercial, criminal, family and labour legal systems providing in-court mediation services as well as about the various out-of-court mediation services offered through various professional associations. In Estonia, Juristaitab, a free legal assistance portal, is provided in co‑operation between the Ministry of Justice and the Lawyers Association to help people find answers to legal questions that they encounter in everyday life.32 In Finland, Suomi.fi is a one-stop portal for Finnish public sector online services for citizens.33 The portal contains links to sites that provide information and services for citizens.
Today there are many examples of web-based sources designed to empower people to address their legal problems themselves or to link them to needed assistance: legal information and referral websites,34 online video instruction,35 interactive information services36 and social media.37 A promising practice is to link legal and justice services with other public services through “life-event” approaches, which aim to provide relevant services to specific user groups, focusing on their specific needs in phases of their lives or in specific life situations (OECD, 2009[52]). This can help with referral pointers, improve resource efficiency and reach of services to those who need them.
Web-based services offer an element of universality because they are potentially available to anyone who has access to the Internet. Further, some countries are implementing web-based services in view of the funding constraints, as they are seen to be less expensive than in‑person advice services. Web-based advice services have the potential to provide assistance to a large number of people experiencing legal problems who, for a variety of reasons, use self-help strategies to resolve their problems. The information available for the review of “Virtual Legal Help Services” on the BC Small Claims Court and Supreme Court Websites suggests that the websites are highly effective tools for providing greater access to justice (Currie, 2014[53]).
People are also empowered by increasing their legal literacy and legal capabilities through sharing of information, skills development and service provision that engages clients as active participants in the legal process. Evaluations of legal education/literacy programmes show that they have the potential to change participants’ behaviour in positive ways and improve their outcomes. For example, according to the systematic review undertaken by the LJF of NSW, two studies on the effectiveness of public legal education show that these programmes were associated with changes in participants’ knowledge, skills or motivation, although precise correlation is difficult to establish. In addition, these programmes have a potential to increase court efficiency, as demonstrated in the study by (Ellis and Anderson, 2003[54]), which found that programme participants in the Canadian divorce education programme used fewer court resources (fewer case conferences and mentions) and managed to finalise their cases sooner than non-participants (Wilczynski, Karras and Forell, 2014[55]).
The Dutch legal aid service, Jurisdisch Loket, makes its services available at many legal services counters around the country and through Rechtwijzer (Signpost to Justice), an online legal guidance website which is also a virtual first stop for legal aid. The website offers a database of template legal letters so that individuals can initiate a legal process, a roadmap to justice which is a “decision tree” that helps people find solutions for their legal problems in an interactive manner, and an online dispute resolution platform. An evaluation of this service showed that particularly people dealing with serious conflicts, which are characterised by high levels of escalation and stress, seem to find their way to Rechtwijzer. The evaluation also highlighted that Rechtwijzer (along with other legal advice websites such as Juridisch Loket) is an important source of information and legal aid at the start of the conflict process, especially for low-income groups (Bickel, Dijk and Giebels, 2015[56]). An interactive smartphone application is also available.38 Similarly, Indonesia has developed the Legal Smart Channel. Some other legal aid providers have also developed easy-to-use interactive versions of standardised court forms.39
In New Zealand, the Community Law Manual is published on an annual basis and sets out legal information related to many areas of community and personal life in an accessible way. People can search the manual on line by asking legal questions.40 Some legal information services integrate a “live chat” function so that people seeking information and assistance can ask questions and be provided with tailored information that responds to their situations.41 In the US, many legal aid providers support legal self‑help centres at courthouses and public libraries, and in some cases the courts, often working in conjunction with other service providers, provide self-help services42
A specific strategy is encouraging people to take responsibility for their “legal health” in the same way that they do for their physical and mental health. For example, the Women’s Legal Services Tasmania has published a booklet called “Legal Health Checkup – What Shape Is Your Legal Health In?” (Women’s Legal Services Tasmania (n.d.[57]). As mentioned above the Legal-Health Check-Up Project in Ontario (https://www.legalhealthcheckup.ca/en/) aims to address this issue by extending legal aid. This form of project asks clients about everyday legal problems concerning income, housing, education, employment, family and social and health support. The Canadian Bar Association has also developed a wide range of legal health checklists designed to be used directly by individuals (CBA, n.d.[58]) (legal checklists are also used by service providers as a diagnostic tool and these are discussed below in the section on prevention, proactivity and timeliness).
There are important areas of overlap and synergy between legal literacy and capability and financial literacy and capability. Financial literacy programmes assist consumers and investors in improving their understanding of financial products and concepts; and through information, instruction and/or objective advice to develop the skills and confidence to become more aware of financial risks and opportunities, to make informed choices, to know where to go for help and take other effective actions to improve their financial well-being. It is a combination of knowledge, attitudes and skills.
Empowerment can also be advanced through culturally appropriate justice services. For example, an evaluation of five Indigenous youth courts in New Zealand found that young offenders showed improved behaviour including a better understanding of their responsibilities, had improved communication skills and had established positive relations with the community (Kaipuke Consultants, 2012[59]).
The life events methodology, as demonstrated from the broader service delivery experience and lessons learned, is seen as having the potential to improve service delivery for disadvantaged groups. In France, for example, this approach was used to study administrative barriers to recent immigrants, which were found to be persistent in all areas of life. Similarly, studies of the experiences of disabled people also showed that administrative procedures related to the life event of “disability” are very complex and helped to identify bottlenecks in government services (OECD, 2016[60]). Similarly, one Australian legal assistance service provider designed legal information geared toward addressing legal issues that are triggered by life events such as becoming employed, getting married, buying a home and so on (Women’s Legal Services Tasmania, n.d.[57]) and one for legal issues faced by women over the age of 50 and their families (Women’s Legal Services Tasmania, 2016[61]).
Outcome focus and fairness
People seek legal and justice services as a means to an end and therefore these services need to be designed with a focus on outcomes and fairness. The outcome focus is particularly important for linking equal access to justice to inclusive growth and sustainable development as well as to individual and community well-being. Even services that do not lead to a positive substantive outcome can contribute to social inclusion and trust in institutions to the extent that they provide a sense of fairness to individuals and others in their interactions in the justice system.
Fairness is central to justice systems, even though the meaning of fairness can be contextualised to specific legal systems and the means to ensure fairness can differ from country to country.43 Fairness is seen in broad terms here beyond the legality of procedures and is linked to enabling people to effectively resolve disputes in a manner consistent with human rights standards. For example, the American Bar Association’s rule of law framework includes “fair procedure” as essential access to justice criteria. Indicators of fair procedure include: to what extent do justice institutions, whether formal or informal, ensure citizens have an opportunity to effectively present their case? Resolve disputes impartially and without improper influence? Where disputes are resolved by mediation, citizens can make voluntary and informed decisions to settle (ABA, 2012[62])? People-centred legal and justice services are designed to contribute to fairness.
Traditionally the justice system’s concern has been with fairness of procedures but fair outcomes are equally important. The justice system should be fair and accessible for all, including those facing financial and other disadvantages. Access to the system and to fair results should not be dependent on the capacity to afford private legal representation. Outcomes should be in accordance with national legal norms and human rights principles and standards (UNDP, 2014[63]; Northern Ireland, 2011[64]).
People-focused services shift the attention away from the traditional prominence placed on process by justice system players to a people-centred emphasis on outcomes. Formerly the fact of providing high-quality service to ensure fair procedures was the key output for legal and justice service providers. Service providers and funders are beginning to grapple with the more difficult assessment of “what happened” as a result of the service provision. At this stage, our capacity to measure outcomes and trace them to the provision of specific legal or justice services is very limited because it is very complex to establish causal connections. However, an outcomes focus can assist in the design of services. For example, the UK Legal Services Commission established target benefits to be achieved through the provision of legal assistance services in relation to specific categories of legal problems. This assisted providers in designing responsive, outcome-focused services (Table 5.2).
Table 5.2. UK Legal Services Commission’s target benefits to be achieved by service provision
Source: Adapted from Digiusto, E. (2016[43]), “Effectiveness of public legal assistance services”, Justice Issues, Vol. 16, Law and Justice Foundation of New South Wales.
From the perspective of designing people-focused legal and justice services, it is useful to conceptualise this outcome-focus in broad and inclusive terms even though our ability to measure outcomes is limited at present. The range of potential outcomes can be conceptualised in at least three general categories:
Procedural outcomes include factors such as the client’s level of satisfaction with the process and the level of stress experienced. Satisfaction has several dimensions: did the client feel well-prepared, perceive the process to be fair, perceive that she or he was heard, and so on. Procedural outcomes can also be measured through external criteria including human rights norms and reinforcing trust in the justice system.
Substantive outcomes can again be measured from the perspective of the individual’s satisfaction with the outcome (initial and long-term) but the outcome can also be measured against an objective standard (evaluation relative to other similar cases). Other qualitative objectives include empowering the individual through information, education and building legal capabilities. Substantive outcomes can also be measured against overarching societal goals such as inclusive growth, poverty reduction and social inclusion.
Systemic outcomes include the extent to which there is feedback from the process and outcomes into the justice system. Such feedback can encourage learning and innovation and consideration of whether the legal assistance contributed to resilience and prevention of future disputes.
Box 5.13 provides an overview of the various approaches to conceptualising and measuring outcomes proposed and/or applied in current literature and research projects.
Legal and justice services can be designed to effectively contribute to a number of integrated procedural, substantive and systemic outcomes. A service could, for example, be designed with these objectives:
clients/users gained knowledge to solve problems
clients/users obtained resolution to their legal problem and non-legal aspects of their problem
resolution is durable
clients/users obtained access to the legal system or an intended benefit of the law
clients/users had their voice heard in the legal system (Buckley, 2013[65]).
Seeking clarification of an outcome focus and prioritisation of specific types of outcomes facilitated the design of people-centred legal and justice services. This same broad conceptualisation can also be used to measure the effectiveness of services. People-centric approaches to evaluation are considered in Chapter 6.
Box 5.13. Approaches to conceptualising outcomes in the design of legal and justice services
The development of meaningful outcome indicators is a key component of planning legal assistance and other access to justice interventions and is an emerging priority on the access-to-justice research and policy agenda. Indicators can be developed related to service, outcomes, outcomes and systemic outcomes. There is some overlap between indicators. This overlap illustrates differences in approach to conceptualisation.
Service outcomes
Accessibility of legal assistance services.
Proactive identification of legal needs and related non-legal needs.
Contribution to the resolution of legal and other related issues.
Responsiveness to the existing legal capability of the individual and contribute to enhanced legal capability.
Process outcomes
Level of satisfaction with the process as measured against various dimensions of satisfaction (e.g. well prepared, perception that process fair, perception that s/he was heard).
Level of stress experienced during the resolution process.
Promoting a feeling on the part of the individual that the process was fair and that their story was told, thereby increasing the litigant’s willingness to accept the result of the resolution (favourable or unfavourable).
Educating the client as to their best interests or as to what is possible given legal and factual constraints, thereby adjusting the client’s goals.
Comprehensively addressing legal and non-legal dimensions of an individual’s problems/needs; intervene in common patterns of cascading effects/cycle of decline.
Whether clients gained knowledge to solve problems.
Whether clients had their voice heard in the legal system.
Whether different levels of legal assistance result in proper referrals to agencies and to programmes designed to assist with resolving problems and challenges.
Whether the individual benefit from the full factual and legal development of the case.
Comprehensive process outcomes through the stages of a legal resolution: a good client interview; clients with chaotic lifestyles attend interviews, appointments and court dates; clients are better able to plan and organise their legal affairs; improvement in the client’s interaction with the legal system; consideration of issues before a court or tribunal enhanced because the lawyer asked questions/raised issues and brought the client’s story before the court; client is better able to understand their legal position and the options open to them; a process is undergone where the client is listened to, respected and given fearless advice of their legal position; relationships and trust building with other legal and non-legal support agencies enabling client referral and support; holding of authority to account; a holistic service delivered to the client through collaboration, networking, community legal education and joined-up services.
Substantive outcomes
Whether clients obtained a legal resolution.
Whether different levels of legal assistance result in the resolution of problems and challenges.
Creation of a lasting outcome that prevents recurrence of same and/or similar problems in the future.
Whether clients obtained access to the legal system or an intended benefit of the law.
Whether likely negative consequences of unresolved problem were avoided.
The likelihood of obtaining a better (or “desired,” or “more favourable”) substantive outcome with the service.
Outcomes that recognise the underlying purpose of the social programmes that form the setting for legal interventions.
Outcomes that recognise the importance of litigants’ perceptions of fairness, both of the process and of the outcomes of adjudicatory processes.
How the substantive outcome in a specific case compares with the expected outcome (based on an external objective standard).44
Outcomes that engage long-term health and functioning changes (e.g. socio-economic status, physical health, mental health, substance use, criminal justice involvement, child functioning).
Justice system process and outcome indicators
Assuring that each person subject to official decision-making and/or state coercive power is treated with dignity.
Contribution to consistency and fairness in legal outcomes.
Protection of legal rights and support of social norms.
Enhance co‑ordination and collaboration between service providers; ensure the provision of an integrated service; and easy-to-navigate justice pathways.
Making adjudicatory systems run more smoothly.
Court and tribunal efficiency outcomes.
Contribution to public confidence in the justice system and justice institutions.
Are there unintended outcomes for the justice system?
Socio-economic outcome indicators
Improvement in the individual or family’s socio-economic situation, even if the legal outcome is the same, perhaps because the legal assistance includes referrals to other official and community resources.
Improvement in an SME’s functioning and capacity for growth.
Contribution to specific policy goals such as the reduction of homelessness, eviction rates, gender-based violence, child poverty.
Contribution to the health of population and sub-groups within a population.
Increase in the ability of individuals to effectively participate in and contribute to the economy and society.
Contribution to a reduction in inequality in meeting basic needs and accessing public services.
Contribution to inclusive growth/reduction of poverty.
Contribution to the economic functioning and sustainability of small businesses.
Are there unintended societal outcomes?45
Key findings and future research
Legal needs surveys provide an important evidence base concerning people’s experiences in navigating justice systems and seeking legal assistance and are one important starting point in designing people-centred legal and justice services that work.
People-centred justice services encompass a growing spectrum of processes and procedures including a range of alternative mechanisms for dispute resolution such as mediation, online dispute resolution, pre- and post-resolution support, in addition, more formal judicial and non-judicial proceedings.
People-centred legal services can include a continuum of services and a range of service providers (including paralegals, public legal education providers, community advocates, collaborative service provision from legally-trained and other professionals, and so on). The continuum is generally seen as a graduated scheme from least interventionist such as the passive provision of legal information, to advice, to various forms of limited legal assistance, to partial or limited forms of legal representation (such as “limited scope” or unbundled legal services) to full representation in various ADR processes, non-judicial fora and judicial fora.
Ensuring equal access to justice means both providing the right mix of legal and justice services and putting in place effective diagnostic and referral systems to assist people to access the service or services that work for them and facilitating collaboration between services and among service providers.
Experience from other sectors suggests that a user-centred approach to enhancing access to services promises to raise quality, reduce waste and – most importantly – improve other life outcomes and well-being.
A number of principles for people-centred design can be understood as operating along the justice chain. Equality and inclusion, accessibility and availability are the foundation and set the underlying policy orientation. People-centred legal and justice services prioritise proactively, prevention and timeliness and are appropriate and responsive to needs. These services respond to the legal needs that have been identified, measured and mapped and are designed to promote empowerment and focus on substantive outcomes and fairness.
Legal and justice services would be seen as “working” when they are provided on the basis of equality and inclusion and when they contribute to greater social inclusion and equality. Legal and justice services can promote social inclusion by targeting the resolution and identification of broader issues which may be the cause of specific legal problems.
Equality and inclusion as guiding principles also require legal and justice service providers to pay attention to the specific needs and experiences of vulnerable and marginalised groups.
Flowing from the general point that people-centred legal and justice services involve putting people’s needs at the centre and following them throughout the design, delivery and evaluation of services. Women’s specificity must be integrated across the continuum of services.
People-centred legal and justice services should be designed to overcome the range of barriers to access at work in each country. The integration of ICT into the design and delivery of legal and justice services is just one mechanism for overcoming barriers but careful planning is needed to prevent technological innovations from creating or reinforcing existing barriers to equal justice.
People-focused legal and justice services aim to intervene at an appropriate and early stage of legal problems and to facilitate their prevention. Proactive services, such as outreach programmes, are critical to improving access to justice for poor and disadvantaged individuals and groups.
Increasing evidence from OECD and partner countries shows that in order to provide effective access to justice, legal and justice services need to be “personalised” or responsive to the individual and the situation.
People-centred legal and justice services should enable people’s participation through empowerment: people are empowered in their relationship to legal and justice service providers and with a greater ability to solve problems at an early stage and individuals are empowered to resolve disputes between themselves when appropriate, without recourse to the institutions of the justice system.
People seek legal and justice services as a means to an end and therefore these services need to be designed with a focus on outcomes and fairness. People-focused services shift the attention away from the traditional prominence placed on the process by justice system players to a people-centred emphasis on outcomes. Legal and justice services can be designed to effectively contribute to a number of integrated procedural, substantive and systemic outcomes.
There remains much that we do not know about “what works”. Further analysis could focus on the refinement of different criteria on the basis of robust evidence and their possible translation into indicators and tools to support accessibility and the design of people-centricity of legal and justice services. Some people-centred tools could include methodologies for integrating behavioural insights and community-based approaches and problem-solving justice to develop tailored solutions for vulnerable groups (e.g. for tackling gender-based violence, strengthening indigenous outcomes, juvenile justice) and what works to strengthen legal capability and literacy as a prevention and empowerment measure, with a focus on current initiatives and their measurable impacts in strengthening legal education and literacy.
The understanding of “what works” approaches could also be further refined through focused comparative and national case studies of what works for whom looking at how best to respond to the legal needs of particularly vulnerable groups, perhaps integrating a life cycle methodology of legal needs of group members at specific junctures. The OECD could support countries in overcoming the gaps in gender data through the creation of tools and facilitating exchanges on good practices related to gender equality in the access to justice context.
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Notes
← 1. An important distinction can be made between recurrent (e.g. companies, banks, trade unions) and one-time users (e.g. individuals), which can have implications for mapping the demand for legal and justice services and fore-information-on-what-works.
← 2. The Law and Justice Foundation of New South Wales has conducted a number of systematic reviews of evaluations of the provided services, which could offer a good model and methodological approach. In other policy areas, there is also a trend to improve the quality of public and private services through enhancing the evidence base for social policy and practice.
← 3. See discussion in OECD (2015[25]).
← 4. Specific examples include: Women’s Legal Services Victoria and Queensland (Australia), RISE Legal Clinic (Vancouver, Canada), Barbra Schlifer Commemorative Clinic (Toronto, Canada).
← 5. See, for example, Canada’s Women’s Legal Education and Action Fund and California’s Women’s Law Centre.
← 6. Government of Dubai, Dubai’s Courts’ Smartphone Applications.
← 7. For example: LawAccess NSW (www.Lawaccess.nsw.gov.au); Clicklaw (www.clicklaw.bc.ca); Advicenow (www.advicenow.org.uk).
← 8. For example: Your Legal Rights (www.yourlegalrights.on.ca); Éducaloi (www.educaloi.qc.ca).
← 9. For example: Rechtwijzer (www.rechtwijzer.nl); LawHelp (www.lawhelp.org).
← 10. A2J Author is an “interview builder” designed to help authors simplify diagnostic interviews, document preparation and guided instructions delivered over the Web to self-represented litigants.
← 11. For example: Rechtwijzer (www.rechtwijzer.nl); Also developed by for profit legal services providers (www.roadtrafficrepresentation.com).
← 12. For example: LawAssist, LawAccess NSW (http://www.lawaccess.nsw.gov.au/Pages/representing/Representing-yourself.aspx).
← 13. A2J Author, Hotdocs and others discussed in Staudt (2009[27]). In the US, there is a national document assembly server, the National Public Automated Documents Online (www.npado.org).
← 14. Through electronic trial technology (Productivity Commission, 2013[85]).
← 15. Partial online services are available by the Dispute Settlement Centre of Victoria Australia and full services are now available from the British Columbia Civil Resolution Tribunal and will soon be from the Netherland’s Rechtwijzer 2.0.
← 16. For example: Consumer Protection BC (www.consumerprotectionbc.ca/odr).
← 17. Austrian Courts, Electronic order for payments.
← 18. German Courts, Application for orders for payments.
← 19. HM Courts & Tribunal Service, Online Money Claim.
← 20. See: National Center for Preventive Law (http://www.preventivelawyer.org/main/default.asp?pid=multi-dimensional.htm).
← 21. See: Finnish Competition and Consumer Authority (https://www.kkv.fi/en/facts-and-advice/payment-bills-debt-collection).
← 22. See: Islandic Debtors’ Ombudsman (https://www.ums.is/en).
← 23. See: Employment New Zealand (https://employment.govt.nz/resolving-problems/steps-to-resolve/mediation).
← 24. See: Civil Resolution Tribunal (https://www.civilresolutionbc.ca).
← 26. Ibid., p. 151.
← 27. The i-HELP checklist was developed in the US for use in medical-legal partnerships (hospital based legal services). i-HELP stands for: Income supports, Housing and utilities, Education and Employment, Legal status (e.g. immigration), Personal and family stability.
← 28. Special Eurobarometer 395, 54.
← 29. The report focuses on a sample of taxation and superannuation disputes involving 118 finalised alternative dispute resolution (ADR) processes that were conducted between July 2013 and June 2014. This report considers the effectiveness, cost, perceptions and approaches used in the ADR process. It explores data about disputes (de-identified) as well as structured survey material (qualitative and quantitative) from all who were involved in ADR processes – taxpayers, representatives, experts, staff of the Australian Taxation Office (ATO) and ADR practitioners. ACJI surveyed (on line or by telephone) all participants who have been involved in the sample of finalised dispute resolution processes, including taxpayers and their advisors, ATO staff and dispute resolution practitioners. For more information: Sourdin (2015[66]).
← 30. See: FLAC Legal Advice Clinics (https://www.flac.ie/help/centres).
← 31. See: Path Legal (http://www.il.pathlegal.com).
← 32. See: Eesti Õigusbüroo (http://www.juristaitab.ee).
← 33. See: Suomi (www.suomi.fi/suomifi/suomi).
← 34. Clicklaw Wikibooks is an example of a project using a wiki structure to make available a detailed book or pamphlet-sized description of the law that allows users to print, copy and re-use the resource as long it is for non-commercial purposes.
← 35. Pro Bono Law Alberta and the CBA-Alberta Branch: YouTube videos for unrepresented clients going to court (www.pbla.ca/news/).
← 36. See: New York’s Live Help Program, LawHelp (www.Lawhelp.org).
← 37. Midland Information Debt and Legal Advocacy Service (MIDLAS).
← 38. The Jurisdisch Loket smartphone application has been developed in order to assist people in their preparation for consultations with legal aid services. Smartphone users can download this application at no cost on smartphone application stores. The application contains the contact details of important legal aid institutions, enables users to make sound recordings and scan necessary documents, and keeps track of a user’s appointments with legal aid services.
← 39. Examples include: Illinois Legal Aid Online (https://www.illinoislegalaid.org).
← 40. New Zealand, Community Law, manual is updated annually (http://communitylaw.org.nz/legal-information).
← 41. Examples include: the Justice Education Society in British Columbia Canada has an “ask Jes” function which provides free legal help, Justice Education Society (http://www.justiceeducation.ca/) and the Illinois Legal Aid Online.
← 42. Examples include: Maricopa Superior Court Self‑Service Center in Arizona (www.superiorcourt.maricopa.gov/SuperiorCourt/LawLibraryResourceCenter).
← 43. Concepts related to fairness are not universal. Depending on the language in which this term is translated, it can be understood to related to, and embrace, different concepts, such as: justice; equity; impartiality; objectivity; legality.
← 44. For example, one of the performance standards for the former UK Community Legal Assistance Centres was that the outcomes of cases achieve “substantive benefit” for the client. Whether a client has received a substantive benefit is based on the outcome reported for the client. For specialist help (generally-speaking from a lawyer), those outcomes that were considered to have a substantive benefit were determined with respect to the outcome codes for reporting closed matters pursuant to the contract for legal services (e.g. for consumer contract problems, the outcome benefits were “the sum owed or liability is reduced” and/or “goods or services are replaced or repaired” (Fox et al., 2010[67]).
← 45. Sources consulted in the preparation of this overview: Greiner and Pattanayak (2011[68]); Trude and Gibbs (2010[69]); Goldberg and Predeoux (2009[70]); Fox et al. (2010[67]); Buckley (2013[65]); Engler (2010[4]; 2010[71]); Selbin et al. (2012[72]); Northwest Pacific Consulting (2009[73]); Digiusto (2016[43]); Steinberg (2011[74]); Abel (2010[83]); Smith and Patel (2010[75]); Curran (2012[76]; 2012[84]); Albiston and Sandefur (2013[77]); Legal Services Society (2012[78]); Bunham (2011[79]); Trude and Gibbs (2010[69]); Brookings Institution (2015[80]); Curran and Crockett (2016[81]); Owen and Portillo (2003[82]); Productivity Commission (2014[28]).