Research finds that 27% of Americans used cell phones to settle an argument or disagreement

Survey research of Pew Internet finds that 27% of the Americans used their cell phones in the last 30 days to settle an argument or disagreement. Very likely only a portion of these disagreements were justiciable but still – there is an important interaction between dispute resolution, access to justice and mobile technologies.

Predictably, younger people use more often their cell phones to solve disputes. What is interesting is that men are using cell phones more frequently than women when there is a need to settle and argument (31% vs. 22%).  Also those who have smartphones are significantly more likely to use them to solve disputes than owners of cell phones.

These findings raise many additional questions: how people use mobile phones to settle disputes; what types of problems are more likely to be resolved with mobile technologies; do people who use mobile phones in the dispute resolution process achieve more results.

Advertisement

Traditional Courts Bill sparks controversies in South Africa

The Traditional Courts Bill was first introduced in 2008. Recently it was reintroduced and according to its sponsors the Bill should become effective as of the end of 2012. The Bill repeals the Black Administration Act of 1927 – no doubt, a long overdue task.

In a nutshell, the Bill regulates the institution of a traditional court. The minister responsible for the administration of justice designates a senior traditional leader, king or queen! to preside over the traditional court. Traditional courts will have jurisdiction to hear certain civil matters (exceptions are constitutional matters, divorce, alimony, custody or guardianship of minor children etc.) as well as some criminal offences such as theft, malicious damage to property, damages not exceeding certain limits and assault which did not result into bodily injury.

When deciding upon disagreements traditional courts should apply customary law and customs. Through bringing justice to the communities the Bill aims to:

• Affirm the values of traditional justice which is based on restorative justice and reconciliation. In the language of the Bill, restorative justice and reconciliation are true African justice values;
• Affirm the role of the institution of traditional leadership;
• Enhance the effectiveness, efficiency and integrity of the traditional justice system;
• Enhancement of the quality of life of the traditional communities through mediation;
• Promote access to justice for all persons in South Africa.

As foreseen in the Bill, traditional courts should prevent conflict, maintain harmony and resolve disputes where they have occurred. For instance, the sanctions imposed by the Traditional courts cannot be inhumane, banish one of the parties from the community or be humiliating (corporal punishment is explicitly outlawed).

If the Bill were passed as it is, the Traditional courts will have a colourful array of resolutions from which they can select in order to solve the outstanding disputes. For instance, they can impose fines which might be expressed in money but also in livestock. Traditional courts will also be able to order an unconditional apology or service in the benefit of the community.

The Bill includes certain procedural rights which should ensure the fairness and justness of the trial. The full rights of women are specifically acknowledged. Here, it should be noted that the Bill envisages only procedural rights. Substantive rights are all in the domain of customary law. Ultimately, all resolutions of the Traditional courts can be appealed to the magistrates’ courts.

Supporters of the Traditional Courts Bill emphasise its potential to bring justice closer to the communities. Zolani Mkiva, head of the presidency of the Congress of Traditional Leaders of South Africa alleges that traditional leaders will be unbiased in their role of neutrals solving disputes in Traditional Courts. “With any form of unfairness, people are free to take it to another level”.

Many observers, however, disagree with the intentions and approach of the Bill. Their arguments come from different directions. Some challenge the wisdom of centralization of local powers in the hands of non-elected and unaccountable traditional leaders. Moreover, the structure of the traditional courts centralizes significant powers to a single individual. It is not difficult to see traditional leaders disposing justice despite of conflicts of interests.

Others challenge the patriarchical fundaments of the institute of traditional leadership in South Africa and warn that such institutions can further harm the interests of women and other vulnerable groups such as foreigners who make sizeable proportion of the population of many rural areas. An example of the attitude that some traditional leaders might have towards women is a story from Prudhoe village, where an eight-month pregnant woman tried to claim damages from the man who made her pregnant and then abandoned her. The tribal court decided that she was just speculating with the good name of the man. Also the court said that the man’s father is rich and important and it is not desirable for the community to “pull their family name in the mud”. At the end, instead of being given relief, the pregnant woman was sentenced to corporal punishment.

Third argument against the Traditional Courts Bill as it is now is that it will basically force rural communities into an experiment with Traditional courts. Indeed, there is the appeal path but one immediately might ask how many of the poor, uninformed and disempowerered people will ever think of appealing the resolution of a Traditional Court.

 

 

Settlement mills – how good are they for access to justice?

Settlement mills are allegedly edgy law firms that process high volume – law value personal injury cases. In a recent paper, Nora Freeman Engstrom provides detailed account of the practices of settlement mills and discusses their pros and cons. Interestingly, one of the arguments in favor of the mills is that they might provide access to justice for tort victims who otherwise would not have been able to find their way through the personal injury maze.

To start with, the characteristics of settlement mills is that they target a niche of relatively low value “cut and dry” cases. Very few ‘mill’ cases ever go to trial – most get settled for some amount. This is where the settlement mills provide value. They thrive on the disadvantages of the traditional tort system – quick compensation; predictability, low transaction costs and reduced court congestion. All this advantages are achieved through economies of scale, specialism and increased shift of work towards non-legal staff.

Do settlement mills increase access to justice? According to Nora Freeman Engstrom that might be the case if one compares for the alternatives in the US legal market. Lawyers working on contingency fee basis is the most obvious alternative route to justice. However, contingency fee personal injury lawyers are notoriously picky. Studies have shown that risk mitigation strategies result in high volume of client refusals. Close to 2/3 of the clients are not signed due to meager profit prospects.

It is a different story with settlement mills. Almost everyone who comes with a claim is signed and most of the cases are processed. Indeed, the trade off is the amount and depth of work. But the point of Nora Freeman Engstrom is that most likely these victims would have otherwise done nothing. Another argument  supporting the thesis that settlement mills in a way expand access to justice is that they advertise aggressively. Many tort victims relegate their claims because they do not know what to do and where to seek support. TV and printed adds (and perhaps internet) bridge that gap and signpost people to paths to justice.  Yet another argument, well depicted in the paper, is that most clients receive something. Simply the modus operandi of settlement mills is that they squeeze perhaps not optimal but some compensation from insurers. Moreover, this compensation usually arrives rather quick – within two to eight months from the accident.

The paper does not juxtapose other options for tort victims which exist outside the US. For instance legal cost insurance in some European countries is a potent alternative. State funded compensation schemes can also be compared against the costs, processes and outcomes of the settlement mills. Using the TISCO Methodology for measuring the costs and quality of access to justice might provide interesting parallels.

Inevitably there are drawbacks in the practice of settlement mills. In a nutshell the paper identifies and discusses in detail the following risks:

– settlement mills’ “assembly line” approach deprives tort victims of in-depth, intimate, fact-intensive, truth-searching process that underlie traditional tort

– clients with serious injuries or high claims run serious risk to wind up undercompensated

– as most of settlement mills’ work is performed by non-lawyer personnel there are no ethical or professional standards and concerns and

– settlement mills tend to sell service which is priced as legal service but has little to do with the traditional understanding of legal services.

Read the full text of  Sunlight and Settlement Mills here

Justice as poetry: judge delivers opinion in rhyme

Informational justice plays crucial role for how people perceive justice processes. Motivated and well explained court procedures and outcomes define positive experiences with access to justice. Recently Justice Eakin from the Supreme Court of Pennsilvaniya added a new dimension to the art of justice. A fraud opinion was disposed in …. rhymes!

 

In January, 2001, appellant’s car was in a collision.

His insurer totaled the aging New Yorker, then made a just division

of the value of the insurance claim, sending $6,289 to the lender;

the balance of $135, to appellant they made tender.

And thus the matter terminated, or so one might have thought,

but that was not to be, when Goodson’s later schemes were caught

Appellant was unhappy with his meager share, we guess —

comparing the two payouts, his disbursement was much less —

so six months later, in July, Mr. Goodson would appear

at a branch of First National Bank, and there he made it clear

that he’d a check made out to him, which he innocently presented

to open a new bank account — “from State Farm,” he represented.

The check was numbered familiarly, same as the prior one

for $135 that he’d been given when this saga’d just begun.

And it was for $6,289, a unique and memorable amount.

The bank obligingly took the check and opened a new account.

“Welcome our new customer!” a greeting that we’d bet

the bank would come to think of with a measure of regret.

….

Sentenced on the other crimes, he surely won’t go free,

but we find he can’t be guilty of this final felony.

Convictions for the forgery and theft are approbated —

the sentence for insurance fraud, however, is vacated.

The case must be remanded for resentencing, we find,

so the trial judge may impose the result he originally had in mind.

What Goodson did is serious, but doesn’t comprise this crime —

there’s simply no rhyme nor reason for it, for these reasons (and in rhyme).

Madame Justice Orie Melvin did not participate in the consideration or decision of this

case.

Mr. Justice Baer joins the opinion.

Madame Justice Todd and Mr. Justice McCaffery concur in the result.

Mr. Justice Saylor files a dissenting opinion in which Mr. Chief Justice Castille joins.

Read the text of Commonwealth v. Goodson here

Justice on wheels programme in the Philippines

The Justice on Wheels is an access to justice programme which was commenced in 2004 by the country’s Supreme Court  following the example of the Guatemalan Mobile Court System. JOW aims to bring justice closer to the poor by providing on-the-spot fast and free dispute resolution services – adjudication, mediation and conciliation.

A bus is travelling the country literally delivering accessible justice to the local communities. One part of the bus has been transformed into a court room and the other serves as a mediation chamber. The disputants are offered not only facilities but also can benefit from the professional services of judges, prosecutors, mediators, clerks and lawyers. Even process server and a court room guard travel with the bus.

Justice on Wheel

Recently the JOW project conducted an orientation visit to Dipolog City.  Municipal officials and court employees explained to the interested citizens different aspects related to the rights of women and children, juvenile justice, small claims procedures etc.

Read more about the orientation conducted by the Justice on Wheels project in the Philippines here

Where’s the role of ADR in Access to Justice

In his Australian Dispute Resolvers blog, Chris Whitelaw ponders over the potential of ADR to promote and secure Access to justice. ADR has been present on the A2J scene for a long time but nowadays the ongoing cutbacks of public budgets make policy makers and service delivery agencies to look for cheap and effective alternatives. That’s where ADR comes riding waves of assumptions that it’s cheaper (than legal aid?) and effective (to solve disputes in fair manner).

Victoria and New South Wales have introduced reforms aiming to introduce ADR in the early phases of the dispute. Bellow is an example of the steps that a provider of dispute resolution services has to take attempting to settle a dispute before litigation has been considered:

1. Obtaining sufficient information and material  about the dispute, its parties, their interests and values

2.  Working out who needs to be involved in the dispute

3. Obtaining access to relevant documents

4. Send out questionnaires to the parties

5. Preliminary meeting with each disputant

6. Considering and recommending the right ADR method for the conflict at hand

7. Establish dates for all processes that might supplement ADR

8. Establish all things that have to happen before the main ADR process

9. Schedule the dispute resolution process

10. Work with the parties and others involved – education, awareness raising etc.

Read more about the relationship between ADR and Access to justice here

New Article on National Consensus about Access to Justice

Fellow blogger Richard Zorza from accesstojustice.net published a new Judicature article entitled Access to Justice: The Emerging Consensus and Some Questions and Implications. With his kind permission I’m reproducing introduction to the article. It is insightful and invites the reader to think of innovative solutions to the problems of access to justice. Read the original post here.

I thought folks might be interested in my new Judicature article, Access to Justice: The Emerging Consensus and Some Questions and Implications. It will be in the forthcoming Jan-Feb 2011 issue. Thanks to Judicature, one of my favorite publications, for carrying it.

The article makes the case that there is a far broader consensus than we generally realize about what needs to be done to achieve full access to justice. It does so by weaving together statements of state and local court, bar, and legal aid leadership organizations and of individual leaders, and examples of actual projects and initiatives that reflect those perspectives. These show that the three major institutional constituencies not only have clear views about what they themselves need to do, but that the views of each constituency are shared and supported by the other two. Indeed, the consensus is broad enough to provide the needed foundation for joint action to build the needed comprehensive system, and we should celebrate it and build on it.

Specifically, the article postulates the following agreed directions:

Court simplification and services. Courts must become institutions that are easy-to-access, regardless of whether the litigant has a lawyer. This can be made possible by the reconsideration and simplification of how the court operates, and by the provision of informational access services and tools to those who must navigate its procedures.

Bar service innovation. The bar must, through the expansion of flexible services such as discrete task representation and pro bono, con- tinue to become more cost effective and innovative in reaching and pro- viding access services to both poor and middle income households.

Availability and cost-effectiveness of subsidized counsel. For those matters and individuals where subsidized experienced legal counsel is needed to obtain access, we must make sure that those services are actually available through pro bono, non-profit, and other subsidized methods, and that they are provided in the most flexible and cost effective way.

(There is one additional area as to which there are significant hints of agreement, and real steps forward, from all the major constituencies.)

Triage and referral. To take full advantage of these changes, there must be some system that ensures that litigants obtain the services they need to obtain access most efficiently and effectively. In other words there must be some system of triage, including referral and follow up.

The article also suggests some of the implications of this consensus, and discusses some open questions. Among the key open questions:

• How is triage to be done?

• How are middle-income people’s needs to be met?

• Should the private bar be subsidized for participation in the pro- vision of access services?

• Where is the funding to come from?

• What is the federal role in building the system?

The article concludes:

“It is critical to recognize the breadth of the consensus that we now enjoy. We must realize and leverage the fact that the consensus represents the foundation of a 100 percent access to justice system. The differ- ent constituencies have everything to gain, and nothing to lose from embracing a consensus, advocating for its implementation, creating the national institutions that will promote it, and working together at every level to put it into place. The excluded demand no less, the future of our democracy depends no less, and the future will not forgive us if we achieve any less.”

Whether you agree or disagree, please do read, comment, and discuss. And share your thoughts on the open questions posed. Lets take full advantage of this moment of consensus and opportunity — even, perhaps particularly in tough times.

England and Wales: divorcing couples will go to mediation before court

In attempt to relief the overburdened family courts divorcing couples in England & Wales will be directed first to mediation. According to Justice Minister Jonathan Djanogly mediation is cheaper and faster. BBC cites data from the National Audit Office according to which a mediation costs on average £535 per client. The costs of the comparable court procedure are £2,823 per client. According to the same source mediation is faster – 110 days on average versus 435 days for court cases.

Some lawyers as well as the Law Society disagree arguing that mediation is not always appropriate solution. Another accusation is that mediation is used to conceal the government’s plans to cut legal aid. Linda Lee, Law Society president says:

“As a matter of course any lawyer aims for an agreed solution through negotiation because going to court is stressful and expensive. This is not always possible and, in some cases, the court is the only appropriate way of resolving the problems. The government is creating a myth that mediation is a panacea in order to justify cuts to legal aid which will take areas such as this, where people desperately need advice out of scope.”

Scotland considers introduction of a no-fault compensation scheme for medical malpractice

Review aiming to explore the merits of a no-fault compensation scheme in medical tort cases in Scotland concludes that such a scheme will not increase the costs above the current level of fault based litigation. The no-fault scheme means that people who sustained injuries or otherwise were damaged as result of medical treatment can receive compensation without needing to file a suit and bear the associate burden of proof. It is expected that the no-fault system will facilitate the access of victims to justice and namely to fair and quick compensation. The Scottish Health Secretary Mr. Nicola Sturgeon said:

‘It’s in no one’s best interests to have redress delayed because a compensation claim can take years to go through the courts and nor is it in anyone’s interests to have precious NHS resources spent on expensive legal fees. No-fault compensation would be a sensible way to ensure people who have been affected are compensated without tying up either patients or the health service in years of litigation. It’s very encouraging that the review group’s report has recommended this system.’

Read more here

 

Access to justice in China: informal paths to justice in the shadow of state-controlled courts

An interesting on-line article from 2008 outlines the Chinese judicial system and discusses it from access to justice perspective.  Bellow is a summary of the main points:

– “The ingrained flaws of the system have increasingly led Chinese citizens to seek justice through a variety of alternatives, from petitioning and mediation to political pressure using media and international rights organizations”;

– “Each level of court is essentially responsible to political operatives at that level. Local governments appoint judges at the corresponding level of the judicial structure and are responsible for their budgets and salaries. This allows for strong local protectionism, experts say, and in the event of politically sensitive cases, courts often refuse to hear them or leave them unresolved”;

– “[]the number of government lawyers providing legal aid remains inadequate to meet demand. In many rural areas, unlicensed, self-trained individuals are the only available legal advisers”;

– “One of the most common methods used by Chinese citizens is to lodge their grievances with government authorities through a system known as xinfang(“letters and visits”) petitioning”;

– “Given the traditional Chinese preference for mediation, a huge number of civil disputes use this method. For small-scale disputes this is an important mechanism for resolution, say experts”.

Read the article here