MicroJustice:Evidence Based Dispute System Design
From MicroJustice
Tisco has submitted a research program for a subsidy from NWO (the Dutch Research Foundation) in relation to the strategic theme Conflict and Security. Tisco seeks cooperation with research institutions from developing economies to develop this research proposal further.
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[edit] Microjustice
Management of interpersonal (resource) conflict is essential for economic growth, peace and stability. Microjustice is an innovative approach that strives to make access to justice affordable and sustainable, through focus on:
- key relationships relevant to investment and development;
- sources of protracted conflict;
- essential tasks of conflict management systems;
- local needs and capabilities, enriched by theory and best practices;
- economies of scale across countries, jurisdictions, and social systems.
Microjustice specifically takes up the challenge of enhancing the quality/price ratio for dispute resolution. Formal (legal) dispute systems through courts and lawyers tend to be accessible only for a small proportion of rich individuals and businesses, unless subsidies are available (Rhode 2004 ; CLEP 2008 II). Bottom-up approaches such as ADR-programs and Legal Empowerment initiatives deliver effective interventions, and have delivered a considerable amount of best practices, but have not succeeded in scaling up (De Rooij 2008). Informal ways of conflict management exist, but may not be able to deliver the required stability, fairness, and procedural justice.
The Microjustice Initiative is a Dutch NGO linked to law and development projects, and the rule of law network around The Hague. Microjustice brings together interdisciplinary research regarding the interface between conflict theory and legal systems, and expertise with product development for low income customers (Base of the Pyramid Method, microinsurance, microfinance).
[edit] Theoretical Foundations of the Research Program
The Microjustice approach offers an excellent opportunity for improving theories, and integrating perspectives. Moreover, it can move the field of dispute system design into an evidence-based direction. In this preliminary proposal, we give an idea of the envisaged integration process and the evaluation framework that may result.
[edit] Conflicts, Relationships and Specific Investments
Socio-legal research has delivered legal needs surveys (CLEP 2008 II; Barendrecht, Kamminga & Verdonschot 2008), which show the core business of any dispute system to consist of issues related to land and housing, family problems, labor problems , neighbor issues, and business conflicts. Institutional economists (Williamson 1985, 2005) have explained why and where trilateral governance and neutral dispute mechanisms are needed. Their analysis confirms that dispute systems have to focus on long term relationships between people that know each other well, that have to adapt to change, are linked to each other by specific investments, that have to find ways to share gains, tasks, and losses, and for whom the ability to trust each other is very important.
[edit] Dispute System Design
The emerging field of dispute system design integrates various strands of conflict research (Ury, Brett, Goldberg 1993, Costantino and Sickles-Merchant 1996, Shariff 2003, Bordone 2008). This research tradition did not yet deliver a conclusive model of a dispute system. There seems to be agreement that dispute systems are most likely to be evaluated favorably if they are interestbased, and have loop-backs to negotiation (Ury, Brett, Goldberg 1993). Moreover, systems should be inclusive (regarding people and issues involved), allow for centralized information processing, delegate sub-processes efficiently, and vest control in the people most affected by decisions (Shariff 2003). Dispute systems should be user-friendly and easily accessible, resolve disputes early, and with the least possible bureaucracy (Costantino and Sickles-Merchant 1996).
[edit] Five Key Elements
The present program is organized around five key tasks of a dispute system. For each of these elements, the framework will list key theoretical insights, and best practices. Moreover, it will show how the corresponding barriers to access to justice translate into market and government failure, as well as possible remedies. Here, we can give only a preview of this framework.
- Meeting: Managing conflict cooperatively requires interaction between the parties, some form of centralized information processing (Shariff 2003). Cognitive barriers, communication break-down, and strategic behavior can be reasons for parties not to participate in cooperative dispute resolution processes. Best practices include shuttle diplomacy, the threat of a default judgment, and instilling social norms to meet.
- Talking: (Theory: communication, integrative negotiation, and coping; Best practices: communication techniques, negotiation formats, online support; Market failure: cognitive and strategic barriers).
- Sharing: (Theory: mixed-motive character, cooperation and appropriation, bargaining literature; Best practices: offering descriptive normative information; Market/government failure: complexity legal systems, economics of information).
- Deciding: (Theory: arbitration, chilling effect, legal research, economics of litigation; Best practices: supervision over the negotiations, provide a way out of impasse;
market/government failure: market fails to provide neutrality, limited incentives on courts).
- Stabilizing: (Theory: post-settlement consequences of conflict, transparency, enforcement, compliance; Best practices: explicit understanding (contract), (costly) legal sanctions, reciprocation, positive reinforcement, identification, and authority; Government
failure).
[edit] Evidence Based Dispute System Design: Method 1
A preliminary version of the theoretical framework will be published soon (Barendrecht 2008, forthcoming). In the present program, this framework will be used to systematically evaluate dispute systems as they operate in practice, and in particular the innovative programs that apply Microjustice (or similar) approaches: Do they conform with theoretical insights? Provide means to cope with the causes of market/government failure? Reflect best practices? Exhibit innovative practices that may be valuable for other programs? Examples of systems that will be evaluated are: the Facilitadores Judiciales Rurales in Nicaragua (OAS), a para-legal program in Mali, a court procedure for consumer conflicts in Bulgaria, the Dutch divorce procedure, and possibly procedures in China, Malawi, and Bolivia.
[edit] Measuring Dispute System Performance: Method 2
In addition, the performance as perceived by the users of the systems will be measured. Building on the dispute system design literature (Bordone 2008), Gramatikov, Barendrecht, and Verdonschot (2008) have built and pilot-tested a methodology for measuring access to justice, using performance indicators suggested by procedural justice research, distributive and retributive justice scholarship, victimology and empirical research on the experience of users of ‘justice systems’. The costs (expenses, time, psychological costs) of using the system are assessed as well.
[edit] Anticipated Results and Dissemination
Evidence-based dispute system design can be expected to have a high impact on the operation of legal procedures, informal dispute systems, and complaint handling. The program will also deliver the beginning of a dataset that describes (the most innovative) dispute systems both in terms of attributes that are likely to enhance performance, and of how users evaluate their performance. Results will be disseminated through the knowledge sharing network of the Microjustice Initiative, through academic papers, and in a first handbook on evidence-based dispute system design.
[edit] Literature
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