Trend Report | Part 1 - HiiL

In this Chapter, we discuss the main approaches that are currently believed to be able to improve access
to justice. We show how these beliefs are grounded in the literature and on data collected. We
demonstrate the potential of these strategies by giving examples, and show how these strategies:
assist people in their communication and negotiation processes (with a realistic option of
adjudication), which are needed to solve justiciable problems; and
overcome the challenges for providers of justice services as discussed in Chapter 4.
So we focus on strategies that are both helpful and realistic. In particular, innovative approaches will
have to deal with the problem of having to involve two clients, of which one may be unwilling to
cooperate. They also have to incorporate good incentives, especially for neutrals such as judges.
Somehow, innovative approaches will have to cope with the challenges of providing both private goods
(solutions) and public goods (precedents, laws and other useful legal and non-legal information).
And innovative approaches can only succeed if they can be integrated with other services in the supply
chain of delivering access to justice.
5.1 Specialisation and Setting Concrete Goals For Procedures
It is very hard to improve things when the direction of travel is uncertain. 178 One of the core lessons from
the innovation literature is that innovation is best started with the result in mind. 179 Access to justice and
the rule of law are no exception to that. 180 So what we need is more concrete goals, and these goals
should be translated into terms of reference. What is an adequate process for a conflict about the use of
land for mining purposes? When is a divorce a good divorce?
Terms of reference can be part of the answer to a lack of good incentives. Without such terms of
reference, monitoring judges and others involved in the administration of justice makes little sense, and
there is a common understanding that monitoring and systematic evaluation is essential. A UNDP report
regarding access to justice in Kosovo asked for “robust civil society and media oversight of the
administration of justice”. 181 The 2011 UN Report on Women’s Justice made tracking court decisions and
monitoring courts as one of its 10 recommendations. 182 Even more important, terms of reference can
help to design good procedures. They can be used by those responsible for developing rules of
procedure, but also in court management and by lawyers or paralegals involved in handling specific
cases.
Terms of reference, are now being formulated on the level of access to justice in general, as guidance for
policy makers (see box below). Courts start to use terms of reference for disposition times.
178 Borins, S. "Public Management Innovation." The American Review of Public Administration sector: A systematic
review of the literature from 1993-2003." Technovation 26(5-6): 644-664 (2001); Baxter, D., M. Schoeman, et al.
Public sector innovation: The role of commercial partnerships (2010); Hartley, J. "Innovation in governance and public
services: Past and present." Public Money & Management 25(1): 27-34 (2005); Mulgan, G. and Albury D. “Innovation
in the public sector”, Strategy Unit Cabinet Office 31(1):5 (2003).
179 Drucker, Peter F., “Innovation and Entrepreneurship: Practice and Principles”, University of Illinois at Urbana-
Champaign's Academy for Entrepreneurial Leadership Historical Research Reference in Entrepreneurship (1985)
Available at SSRN: http://ssrn.com/abstract=1496169; Utterback, James M., “Mastering the Dynamics of Innovation:
How Companies Can Seize Opportunities in the Face of Technological Change” University of Illinois at Urbana-
Champaign's Academy for Entrepreneurial Leadership Historical Research Reference in Entrepreneurship (1994)
Available at SSRN: http://ssrn.com/abstract=1496719
180 Pistor K., Keinan Y., Kleinheisterkamp J., West M.D. “Innovation in Corporate Law”, Journal of Comparative
Economics, Vol. 31, pp. 676-694, (2003)
181 UNDP Kosovo, Assessment Report on Access to justice in Kosovo, p.5, available at:
http://www.ks.undp.org/repository/docs/Eng_UNDP_Access_to_Justicereport.pdf
182 UN Entity for Gender Equality and Empowerment of Women, “2011-2012 Progress of the World Women in Pursuit of
Justice” (2011), p.120, available at: http://progress.unwomen.org/pdfs/EN-Report-Progress.pdf
HiiL Trend Report – Part 1: Challenges and Promising Approaches 85