Courts need to be nurtured and challenged

Courts need to be nurtured and challenged 27 September 2011

We should never give up on courts, because we need neutral, independent third parties. But they are notoriously difficult to manage, so they lose market share. Prof. Maurits Barendrecht sketches how a setting can be created in which courts are stimulated to innovate their procedures.  

In some situations, characterised by dependence and unexpected change, we need third parties. They solve problems in relationships. Courts fulfil this need for trilateral governance, which is a fascinating but complex process. Third parties offer a miracle product, because they can solve most conflicts just by being there. Providing this miracle is difficult, though. Courts are notoriously difficult to manage.

Professor Maurits Barendrecht, an expert in innovation and dispute resolution, dealt with this dilemma in his inaugural lecture as the Hague Visiting Chair on the Rule of Law on 27 September 2011. He showed how courts compete among themselves and with countless other third parties, from informal tribunals to websites and television shows that mobilize the court of public opinion. Courts can learn from both their
competitors and throughout the competition process.

Because their traditional procedures lose market share and legitimacy, courts will have to change their ways. In order to innovate, courts need a setting that provides stronger incentives and, at the same time, is a safe, open and nurturing environment.

The view developed by Montesquieu in the 18th century, positioning courts as independent enforcers of laws enacted by parliaments, is still valuable. But this perspective can also be a barrier to court innovation.

In order to achieve innovation, it is necessary to allow, not push, judges to break rules and to develop new working methods. They should be allowed to work backwards from outcome goals, using terms of reference for what they want to achieve for people in the most difficult moments of their lives. According to Barendrecht they should be stimulated to focus on what works and what is fair, informed by rules, not bound by rules. “Give them 10% of the time, 3% of the budget, recognition and partnerships with customers and outsiders”.

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