Redesign

Redesign 29 May 2017

By Sam Muller, HiiL CEO

Not only do we need to redesign justice systems, we also need to re-design our justice system design systems. Why? Many users of most justice systems are not getting what they could. Moreover, technology and science are changing societies at such speeds that our current factories for making the rules and mechanisms that get justice to citizens can’t keep up. Doing this is tough. It gets in the way of a lot of vested interests, engrained beliefs, lauded legal concepts, and embedded cultures.

If we look at the innovation capacity now, the main innovations we see are what I call ‘nibble-at -the-system’ innovations. In a metaphor from the tourism industry: innovations that allow you to book your hotel faster and easier. What we not doing, is building AirBnB’s that create a whole new way of finding a place to stay in a foreign land. So what can we say about today’s state of justice system design systems?

In my October 2016 column I focussed your attention to Gillian Hadfield’s new book “Rules for a Flat World’. I hope many of you took my advice to read it. The core of what she suggests is to use markets as a tool for re-design. Why is the health sector so innovative? Because it’s worth it while to be. The users of the system – patients – have voice and push for cures. It’s worth doing research. There are known routes to get products to market. There are agreed quality standards that can be measured. You can make money from a business model you develop. Investors come. What Gillian Hadfield suggests pushes the outside of the envelope in a serious way. Why not create more of a market for legal infrastructure?, she proposes. Introduce competition. A government could tender a particular conflict resolution procedure.

Let’s imagine. Last year we completed a Justice Needs and Satisfaction survey in Uganda. It told us that nearly nine out of ten Ugandans have experienced one or more problems during the past four years. People who reported having experienced a justiciable problem often experienced more than one type of problem. While 42% of the population reported having experienced only one problem, 22% reported two problems, and 23% even three or more problems. We estimated that between 5.1 and 5.3 million justice problems around land occur every 4 years. More than a third (38%) of the people did not take any action in the face of the justice problem they faced. Only 5% of the cases get to a court. The data thus clearly shows a need for improvement. What if the ministry of justice of Uganda would do a call for tender for land conflict resolution systems? Such a tender could be based on clear terms of reference, which would for example include accessibility requirements (in terms of costs, effort, distance, online), quality requirements (with measureable fairness standards) and requirements relating to the business model itself. One could imagine bringing in new financing models, like social impact bonds and new public-private partnership models. Can this be an example of a way to re-design justice design? I would say it is.

In that same column I have another example of a new approach. This one is actually happening: the divorce challenge, issued by the Dutch Ministry of Security and Justice last year. The Dutch Parliament adopted motion asking the ministry to issue an innovation challenge. It asks the ministry to invite civil society to submit ideas that lead to a reduction of contentious divorces by 50%. Through such a ‘right to challenge’ anybody who has a better solution for the problem than the one the government has, is welcomed forward. Because a parliamentary motion backs the challenge it’s not a gimmick that the executive or government bureaucracy can easily pretend to take serious but in reality shove aside. Since writing that column we have heard that we became one the winners of the challenge. What we are however also learning is that it is not easy for a ministry of justice to go from a winner of an innovation challenge to a system change. It means letting go, it worries some stakeholders, it creates worries about the legal basis for of the ideas, and it leads to all kinds of financing questions. These are things ministries have not dealt with.

In my last column I reflected about how the design systems we have used up to know to rebuild justice systems in post conflict or post revolution countries need re-examination. Most of what has been done thus far in that area is based on what justice design systems in the richer and so-called developed countries produce and teaching poorer and less developed countries do so the same. It also makes them design in the same way as we in the West do. Years of so-called rule of law by the international community in the DRC, South Sudan, Somalia, Afghanistan, and many other places have not been in vain, but have also not yielded spectacular results either (putting it mildly). In that column I bring together nine points that I am picking up as lessons we are learning and things we can do differently.

Lastly, let me point you to a very interesting article by Shannon Salter and Darin Thomson in the most recent McGill Journal on Dispute Resolution, in which new design systems in the area of civil justice are shared.

Central to all these approaches to resigning the design system are two things. Firstly, putting the user of the system at the core of what you do. The data revolution that is happening now will only make that easier. Secondly, creating innovation space, which concretely means dealing with suffocating rules and making justice innovation worth investing in.

This needs more attention. I welcome any other new ideas on redesigning justice design.

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This blog first appeared on Slaw, Canada’s online legal magazine.