From MicroJustice

Contents 1 About Microjustice 1.1 What is the essential thinking behind Microjustice 1.2 Does it tackle all or just some legal problems? 1.3 Could it be applicable to defendants in the criminal justice system? 1.4 How different is it from the projects in which paralegals provide legal aid to indigent people? 1.5 What are the precise elements that are added to more traditional first line legal aid facilities? 1.6 Can Microjustice cope with power? 1.7 How will Microjustice empower women? 2 About Validation of Microjustice 2.1 Is Microjustice a proven concept? 2.2 Is there a cost-benefit analysis of the impact of the MJ on the served communities? 2.3 In which countries the MJ could showcase results? 3 About Microjustice and Justice 3.1 Is Microjustice justice for minor problems? 3.2 Is Microjustice second rate justice? 3.3 Is Microjustice a danger for the values behind the justice system? 3.4 Is there not too much justice already? 3.5 Does Microjustice stimulate an excessive claim culture? 3.6 Shouldn’t justice be tailor-made? 3.7 Can the market be trusted when it comes to justice? 3.8 What can the market deliver? 3.9 Isn’t justice an exclusive matter of the State? 4 About Microjustice Projects and Organization 4.1 How a MJ project starts 4.2 Who is behind the MJ initiative? 4.3 Are there examples of resistance (mostly from the Bar) against the MJ interventions? 4.4 How is it linked to the microfinancing initiatives? 4.5 Can Microjustice be developed across borders and across cultures? 4.6 What can donors do?

About Microjustice

What is the essential thinking behind Microjustice

Too many efforts to improve the legal system have taken for granted that justice is justice and that a court should provide what a court should provide. Microjustice is all about the very essence of justice. We should reverse-engineer justice and courts. Dispute resolution consists of a mixture between and improvement in communication, facilitation of negotiations, organization of incentives for both parties to cooperate with the process, fact-finding, establishment of norms for distributive justice, decisions on issues that split the parties and, coordination of enforcement.

Similarly, criminal justice can be taken apart, looking at what it does for people. Nowadays, it includes mechanisms that deliver general prevention, fact-finding, reparation, healing and recognition for victims, appropriate treatment for some types of convicted criminals, and retribution. Delivering legal services with a focus on what is needed, and not only on what the law says, will lead to justice of a higher quality delivered to many more people. Moreover, developing cross-border platforms for legal services can lead to higher quality, because experiences and solutions will be exchanged. Unsatisfactory local practices will be increasingly exposed, because users and supervisors of systems can see them and compare them with practices elsewhere

Does it tackle all or just some legal problems?

The Microjustice Initiative focuses on the most urgent legal problems that are immediately connected to economic and human development. Research has shown that obtaining means to prove one's identity is one such problem. Property disputes are the next category. Here we focus on dispute resolution regarding to land and housing, in particular in situations of change: death of a family member (inheritance), family problems (divorce like situations), and changes in use of land. Then come employment issues, issues of small businesses and (in more advanced economies) consumer issues. However, (parts of) the basic microjustice approach may be effective in other cases as well

Could it be applicable to defendants in the criminal justice system?

Probably. Defendants in criminal justice systems may also profit from transparency in the system ('what are the going rates of justice?'). In some situations, dispute resolution skills can help to find a sustainable solution in which defendants, victims and prosecution participate.

How different is it from the projects in which paralegals provide legal aid to indigent people?

Paralegals usually provide information, first line advice and some help with contacting the other party. They may refer to lawyers and/or formal procedures if the problem cannot be solved.

Microjustice builds on the most recent developments in paralegal services and other best practices from dispute systems all over the world. It is more neutral and less adversarial. It is also more result oriented and comprehensive than traditional paralegal assistance. One of the key aspects is the focus on sustainability of services without dependency on permanent subsidies. Finally, it depends less on a well functioning formal legal system.

What are the precise elements that are added to more traditional first line legal aid facilities?

Microjustice helps clients to establish contact with the opponent. Then it assists the parties with negotiation and mediation skills. Besides information about formal rights, it informs the clients systematically about what they can expect as an outcome, and how others solved similar disputes. If the parties do not agree, Microjustice may also organize a low cost neutral intervention for them. Stabilization of the relationship is made more likely by standard settlement-contracts that make the future relationship explicit. Enforcement is organized by making compliance attractive for the defendant, rather than by formal sanctions. Thus, whereas traditional facilities to a large extent are aimed at bringing clients to the formal system, microjustice aims to bring delivery of the tasks traditionally supported by the formal system to the clients.

Can Microjustice cope with power?

Not in any definitive way. Powerful and corrupt people may always find ways around the system for their own personal advantage. Microjustice can make a difference, however, by providing transparent information on norms and practices and therewith uncovering corruption. Comparison across borders may also help to curb abuse of power.

How will Microjustice empower women?

Let us go directly to the most difficult cases: A woman who is the victim of domestic violence or of “property grabbing” by the family of her husband after he dies. Microjustice has no complete answer to these problems. But it can contribute in some ways and in some situations. Besides a possible reaction from the criminal justice system and the immediate needs for protection, a victim has to deal somehow with the other people involved. Mediation and negotiation skills help in this respect. A website can give information about the local inheritance norms or ways of distributing assets in case of divorce next to the rights guaranteed by legislation, and the going rates of justice in other places. If local norms are known, they can be criticized in the community or by outsiders. Informing women (and men) about social norms and rights is a powerful way to change expectations and behavior. Both of the parties themselves, and of the local leaders, courts, or other neutrals who decide disputes.

About Validation of Microjustice

Is Microjustice a proven concept?

Each of the five elements of Microjustice dispute services has been shown to work in some legal/dispute systems. (1) Establishing initial contact with the opponent is done by many legal and community service providers. Opening a court procedure has the same effect. (2) Negotiation and mediation skills are a proven technology that are even adopted by many courts. (3) Making going rates of justice available through guidelines and schedules is done in many legal systems, but not very systematically. (4) Organizing neutral evaluation for the parties is what all jurisdictions have courts for. For microjustice, this is probably the most difficult part. But low-cost/easy-access forms of judging exist. (5) We know also how good settlement agreements and incentives to live up to them can be created.

The unknown factor is how these five elements can be made to work together. Making the whole system work is complicated. Pricing and business development are matters that have to be dealt with. The good news is that there are many complementarities between the elements of a dispute system. If people negotiate in a problemsolving way, it is easier for a neutral person to decide the remaining issues. If going rates of justice are known, parties know what to expect and judges or village elders have an easier job.

Is there a cost-benefit analysis of the impact of the MJ on the served communities?

Not yet. Benefits are likely to include improved access to the economy and government services (identity documents). Improved incentives for investment in assets and in key relationships (family, business, employment). The literature on the value of property rights and tenure protection is indicative. Microjustice is a service by local entrepreneurs to local clients, so it reinforces the local economy. Costs depend on the economies of scale that can be reached across locations.

In which countries the MJ could showcase results?

In Bolivia and Peru, there are Microjusticia projects in which identity documents are delivered. Initial funding for five pilot projects regarding the dispute services has been secured. Negotiations with NGO's for these five projects are under way. Results are not yet available.

About Microjustice and Justice

Is Microjustice justice for minor problems?

No. The ‘micro’ in Microjustice stands for the bottom up approach to the actual delivery of legal protection: local development of small-scale solutions for big-scale, urgent justice needs. Microjustice is intended to become just as real and important as microcredit. It should contribute to making life much easier for the billions of people who have no access to justice now, because, although on paper they have rights, either they and/or their governments may lack the resources to pay for the delivery of the extensive services that codes and case law promise them. In our experience, people in developing countries understand that message and for them, the association with microcredit means that they start thinking of a justice system that is accessible to them.

Is Microjustice second rate justice?

The goal is to provide real justice. Microjustice does not change any of the principles of justice. Microjustice is about an efficient organization of access to the justice system, facilitating an effective meeting of supply and demand. This can be achieved by gaining more insight in the functionality of the different components of the services that form the supply chain of justice.

Is Microjustice a danger for the values behind the justice system?

No. Microjustice is all about the essential values of procedural justice, distributive justice, retributive justice, and restorative justice that make respectful cooperation between people possible. These values can be reinforced if justice is done and is seen to be done. Transparency, neutrality, independence, predictability, and objectivity are also key. What is new in Microjustice is that it is realistic, open-minded, and innovative about the ways to achieve this: through the acts of people who are motivated to deliver justice where it is needed.

Is there not too much justice already?

Nowadays, lawyers and legal systems do not have an unquestioned reputation. Issues like deregulation, the tort system, worries about the administrative costs related to government, and overburdened courts are high on the political agendas. There is no question, however, that some legal system is necessary and that access to justice is essential in situations like the ones we identified as the most urgent justice needs. Moreover, Microjustice strives to make rules more accessible and to investigate the essence of procedures. Diminishing the administrative costs for citizens is exactly what Microjustice is about.

Does Microjustice stimulate an excessive claim culture?

There could be worries that Microjustice brings waves of people to the courts, making life miserable for companies and governments alike. There are many possible answers to such objections. First, the problem is that a (sizeable) segment of the population has no access to justice because it is too difficult and expensive to obtain it. If work is done on that issue specifically, it is implicit and justified that more services will have to be delivered. Secondly, poor people in developing countries (the segment of the population established to have no access to justice) live on approximately US$2 a day. These people will certainly think carefully before bringing a case forward (as there are costs, however small, associated with Microjustice). Thirdly, there is no evidence that people who have the resources are systematically burdening courts with trivial cases. The real problem is costs: legal costs, uncertainty, and damage to reputation during the time it takes the existing legal system to process a case. That is a problem that Microjustice will help to tackle. Finally, the best answer is to leave it to a well-functioning market for justice. If interventions are neutral, transparent, predictable, speedily/timely and are performed against costs fully covered by fees from the disputants while reflecting the principles of justice, then it can be left to the plaintiffs to decide whether that intervention is worth its price.

Shouldn’t justice be tailor-made?

Providing justice is often seen as a pure people’s business, deliverable as a person-to-person service, tailored to the parties and their circumstances. This personalized picture of justice is attractive, but it also defines justice as a luxury good, that is outside the means of most people. It is an extremely unrealistic view, if justice should also be a more or less free service for all citizens in all their conflicts. One insight from Prahalad and Hart’s principles is that justice may be standardized, just like many other services, making use of economies of scale. Modern technologies, such as internet and mobile phones, make it possible to develop programs and services for entire countries or regions. In this sense, delivering justice is similar to delivering credit. Personalized legal services should be possible, but as an add-on for the ones that want to pay for it. Just like in the credit-business.

Can the market be trusted when it comes to justice?

No. But remember: the market already delivers most justice services by turn-over, by number of interventions, or by any other measure. It certainly delivers the substitutes for formal justice that develop spontaneously in refugee camps, villages, and settlements outside the major cities of the Third World. Governments and Courts all over the world better accept their limited role in the delivery of the interventions that make justice real. They could do a better job by developing their monitoring and supervisory role, which is essential. Markets cannot be trusted if they are left by themselves. Markets need rules of the game and supervision. Only then suppliers on the market can earn the trust of the users of their services.

What can the market deliver?

We will not know the answer to that unless we have tried it. It seems unlikely that the provision of justice services should follow a completely different trajectory from all other products and services. Usually, they follow a path of competition, innovation, and attracting more and more clients, creating access to the service for these people. But this is a complicated market, which has not yet been thoroughly analyzed. Moreover, some government intervention is necessary. Cooperation between market and government, however, needs to be optimized, supported by research institutions and others who can fuel the innovation process. A problem may be that neutral legal services have a network character. They work better if more people use the system, but this requires a high initial investment. What we can also predict, however, is that it will be most difficult to reach the poorest of the poor. The bottom of the pyramid is very broad. There, millions of people need access to justice. They do have a limited purchasing power, however, and can also invest time, if the services fit their needs and are understandable to them. Economies of scale can be reached. The poorest of the poor may still depend on subsidized legal services due to more complicated problems/issues and much more limited resources. Entrepreneurs working for profit will not see this as the biggest of opportunities. However, paying for legal aid for 5% of the population in order to help them through a system that is accessible for a low fee is different than proposing to help 50% of the population to cope with a slow and complicated system designed for realities with much higher income levels. Therefore, humanitarian aid agencies will still have a role to play, but probably for a more focused group of people.

Isn’t justice an exclusive matter of the State?

The role of the market, measured by numbers of clients served and by annual-turnover, is already much larger than the role of the State in meeting justice needs. There is no element of the norms and interventions of the justice system that can only be provided by the States. Sometimes, state institutions have a comparative advantage in organizing the type of services that meet justice needs, sometimes market parties. The challenge is to let the State and the market cooperate in an optimal manner, looking at all incentives by all relevant participants.

About Microjustice Projects and Organization

How a MJ project starts

Microjustice projects are ideally started by local NGO's or providers of justice services, such as legal aid offices or court annexed services. They begin with a legal needs and capabilities assessment: What are the 3-5 most urgent types of legal problems that the local clients face? How do local clients deal with these? The paths to justice people follow can be evaluated using a framework of best practices or the experiences of the clients. How effective, accessible, efficient are the procedures that are available? Next, either existing procedures are improved or standard procedures for these problems are developed. The focus is on the five essential tasks (meet, talk, share, decide, stabilize). These tasks are supported by web-based information. After prices for the services have been determined, service delivery starts. As Microjustice is still in the R&D phase, monitoring, evaluation and systematic learning are of the essence.

Who is behind the MJ initiative?

The Microjustice Initiative aims to raise awareness and to exchange knowledge about microjustice and similar legal empowerment efforts. Initial activities were made possible by two Dutch foundations. Research has been supplied by the Law Faculty of Tilburg University in the Netherlands (which is among the top 20 interdisciplinary legal research institutions in the world). Tisco is a research group with extensive experience in evaluating and improving dispute systems (legal and informal). The Bolivia project has been set up by International Legal Alliances a Dutch NGO with extensive experience in supplying identity documents to displaced persons in former Yugoslavia. Many individuals and organizations contributed in kind and with their time to developing the MJI. The MJI is now in the process of inviting prominent members for its board.

Are there examples of resistance (mostly from the Bar) against the MJ interventions?

No. Relationships with the local bars are expected to be similar as in other legal aid initiatives. They can be fruitful (opportunities for serving new groups of clients) as well as competitive.

How is it linked to the microfinancing initiatives?

The basic approach is linked. Microcredit and microinsurance also focus on the essence of the services and deliver these by making use of local labor, supported by some specialized technology. The goals are also similar: sustainability without permanent subsidy, empowerment instead of dependency. Finally, microcredit and microinsurance tend to support investment in assets. Protecting these assets and resolving disputes about assets is linked to that. A funding proposal for exploring the precise links is submitted to one large banking institution in the Netherlands.

Can Microjustice be developed across borders and across cultures?

Justice needs are rather similar. Solutions also are rather similar. Even divorce “proceedings” across cultures and countries have certain commonalities. Procedural justice, distributive justice, restorative justice, and restorative justice are issues everywhere. Comparatists and legal anthropologists have learned to focus on the differences. Because legal systems develop in some isolation from each other, they have followed different trajectories.

But there seems to be no reason why legal systems of different countries or different legal origins could not profit from economies of scale across borders. Multinationals have painstakingly learned to deliver services across borders that cater for the same human needs. They now know what can be standardized and what should be adjusted to local circumstances. Law firms work across borders as well. So why not try it for the justice needs of the poor? This is especially true for the poor living in smaller developing countries, where economies of scale within the country cannot be found.

What can donors do?

Applying the principles of Prahalad to the justice sector changes the approach of donor interventions. Traditional models of providing access to rights in a development context are based on a major donor support of legal aid programs, starting on a pilot scale. Efforts attempting to make legal aid structural (covering the country and providing structural legal solutions) and sustainable (permanent) often fail. As we have seen, these models sometimes use conditions on which Microjustice differs. For instance, some donors forbid contributions by users, or they require that services are bought from preferred partners, such as law firms and legal experts from donor countries. Instead, Microjustice Programs by donors will concentrate on trying to establish justice with minor investments, using less-skilled (inexpensive) labour, and providing paid legal services. In this way, aid in the area of access to justice can lead to structural and sustainable improvements, because locals can make a living from the services. Donor’s funding may be helpful for the development phase, the product identification, the general program costs (updating the website, research, documentaries etc), and for field-work in post-conflict zones where sustainability may still be difficult or impossible to achieve. Ideally, in the long term, the general program costs should also be covered by the clients. If that is not possible, the sources of funding should be made permanent. Justice should be there to stay.