The Begining of A Discussion of ADR and 100% Access to Justice

One of the many impacts of the Chief’s 100% resolution is that it is starting to stimulate discussion in many communities that are or should be part of the broad 100% solution.

So it is great to hear that Resolution Systems Institute is promising the start such a debate within the Alternative Dispute Resolution community.

Specifically, Hanna Kaufman, after referencing the Chief’s Resolution and this blog, explains:

By specifically calling for access to justice in “dispute resolution institutions,” Zorza has invited input from organizations like RSI in developing an understanding of what access to ADR looks like, how it can be achieved, and how it relates to the overall concept of ATJ. We have long understood the potential ADR has as a tool for underrepresented parties, and are beyond thrilled to see other stakeholders in the justice community make that tool a greater priority.

Over the course of my next three blog posts, I will respond to this invitation by sharing examples of how we are currently using our expertise in dispute system design to improve access to justice in the foreclosure mediation programs we administer. Each of these posts will serve as a portrait of how to apply principles of careful dispute system design to promote access to justice through ADR. I welcome your comments on how ADR enables justice and hope to utilize your experiences as a way of framing this conversation.

I look forward to reading these posts.  Let me also suggest some focusing questions that may be useful as the broader discussion moves forward.

  1.  Triage.  How do we develop legitimate and accurate protocols to decide where and how ADR fits into the dispute resolution process?  There will be types of cases in which it is appropriate for all cases, others for none, and others for some.  Developing those rules, testing them, and figuring out how to collect the data and apply them as early as possible in the process is critical.  It will be helpful that there is already pretty broad consensus within the 100% world that relative power or powerless is an important component of triage as to what assistance litigants need, and I would assume that that is already generally considered a major component in the ADR appropriateness analysis that is already being done, I would hope routinely.
  2. Consent.  How and when, if ever, should ADR be mandatory becomes even more critical when it is integrated into a comprehensive system.
  3. Dynamic Triage.  Triage needs not be to a single in-out decision.  Circumstances may change, so triage needs to be dynamic, with the decision under regular and perhaps constant review.
  4. Integrated Triage.  In fact there are really three kinds of triage, that by the litigant, that by the court, and that by any assisting agency.  A decision or change in any of the three will, or rather should, trigger consideration of change in the other two.
  5. Role of Neutral.  As forms of ADR move into the 100% access system, the role of the neutral becomes even more important.  To put it bluntly, there are practices in many states that muzzle the neutral from ensuring that both sides are fully informed in the process, and understand their rights and the implications of choices.  So long as these stay in place, many participants in the triage design process will be pressuring to limit use of ADR to cases in which litigants are in no need for such a role being played by the neutral.  This will significantly reduce the extent to which ADR models are included.
  6. Use of Nonlawyers.   As is now well known, expanded use of nonlawyers is being piloted in several jurisdictions.  Permitting nonlawyers to assist litigants in ADR, even without supervision, would help expand the pool of cases appropriate for ADR triage.
  7. Outcome Measures.  With the committement in the Chief’s Resolution to “achievable and measurable outcomes” in strategic planning for full access, the importance of accurate, credible, and comprehensive measures becomes even more important, and ADR advocates will need to be ready to have their outcome measures integrated into overall system measures for comparability.

I hope this is helpful, and do indeed look forward to following the discussion.



Posted in Mediation, Mixed Model, Outcome Measures, Research and Evalation, Triage | Leave a comment

On the Only Right Response to the Idea of US Government Making All Muslims Register

Obviously, the recently partially apparently walked-back endorsement by a US Presidential candidate of the idea of making all Muslims register is truly obscene in the light of what such a requirement led to in the Holocaust.

The answer to such demagoguery is simple, and I wonder who will be the first to utter it.

“If that is required, I will be the first to register, and I wold will urge everyone in this country to join with me as registering as a Muslim.”

There is precedent in the Danes’ response to Hitler’s order that all Jews wear stars.

Let’ see if any of the current crop of candidates can rise fully to this challenge.  In my opinion, any of them who fails to do so is not fit to be President.

Maybe we should start an online project — “”


Posted in Access to Justice Generally, Discrimination, Technology | 5 Comments

“Making Justice Accessible” At the American Academy of Arts and Sciences

The American Academy of Arts and Sciences was founded in 1790, so they can hardly be called a fad.  So it is surely of some meaning when they decide it is worth spending a couple of days paying attention to the problem of access to justice.  While the “Making Justice Accessible” Symposium held last week operated under rules generally forbidding attribution of comments, I am able to convey my general sense of the conversation and my sense of its implications.

The first obvious point is that when State Chief Justices, Federal Court trila and appellate Judges, academics, LSC, ABA retired presidents, the US Department of Justice, and community-based legal aid program staffers gather for two intense days at the national level, that alone marks a recognition of the issue.

My second take-away is that there is now a very broad leadership consensus in support of the Chiefs 100% Resolution, including the understand that moving towards that goal requires triage, a continuum of services, many innovative, including those delivered through technology, strategic planning, and the measurement of outcomes.

My third take-away that there is an increasing understanding that regulatory flexibility in support of access to justice may well be both appropriate and required.  It’s now OK to talk about real changes in the regulatory environment in ways that were not true even very recently.

My fourth take away is that many of the non-legal aid participants were impressed by the range of engaged innovations that are going on in access to justice.

Personally, I would hope that recognition by the Academy of the importance of the issue, and of the extent to which innovations and new ways of thinking are justifying a fresh look at the problem by national leaders, will cause funders and policy makers to do just that.  Indeed, the speech by Congressman Kennedy, about which I previously blogged, shows the extent to which this is already true.

While no one should have general or specific expectations, stay tuned, as a planning process for consideration of possible additional steps by the Academy moves forward.

Among the possibilities might be analysis of possibilities of enhancing leadership coordination, a focus on research, bringing non-legal communities into the access movement.

One idea that appeals to me particularly is engagement with economists to enrich our understanding of the relationship between access to justice and the economy, and of how incentives might be used to improve our delivery systems, including their relationship to the private bar.


Posted in Access to Justice Generally | Leave a comment

A Way For Courts to Show They Are Serious About Making The Law Accessible — Plain Language Explanations of Appellate Decisions

Here is an idea for how appellate courts could demonstrate their committement to making the law accessible.  They could include in all decisions a short explanation of the decision in plain language (great examples of plain language in box in linked doc).  This would help ensure that the increasing free access now being developed would actually be comprehensible, and would maybe help answer fears that providing such access would be inadequate, misleading, or even cause judicial hostility if it lead to real or apparent failure to understand and correctly argue from cases (for a frightening example, see here).

Including such a plain language explanation might be made a formal requirement by court rule.  Appellate court staff would then be responsible for drafting the explanation, for review by the writing judge.  Sometimes the staffer would get it wrong — surely a signal that the opinion needed revision to clarify the intent of the court.  At other times the staff might be unable to find the words, again an indication of something needing attention.  In any event, such a process would surely sensitize staff and judges to the practicalities of plain language.

There are many tools for measuring comprehensibility.  Indeed Word has one built in.  In an embarrassing disclosure, I should admit that the score using the Flesch-Kincaid Grade Level test for the text above is 11.7, meaning that you would have to be very near graduating from high school to understand it.  Oops.

Perhaps some courts should experiment with this, so that they can develop the skills and experience needed, and then share that with others.



Posted in Appellate Practice, Plain Language | 1 Comment

Congressman Joseph Kennedy III Planning Access to Justice Caucus

Congressman Joseph Kennedy III (D. Mass) told us in a speech at the American Academy of Arts and Sciences last week that he plans to launch an Access to Justice Caucus in the House of Representatives next year.

This is obviously an important additional step in the now rapidly building of a new national support network for access to justice innovation and resources.  It joins the Conference of Chiefs Resolution, the White House Presidential Memorandum on LAIR , the DOJ Access Initiative, and the Public Welfare Foundation’s access work, as very significant additions to the group of existing organizations that have previously been involved in this work.

Having congresspeople and their staffs actively involved in the issue can only help move a broad transformative agenda forward — one that goes beyond the critical but insufficient one of protecting LSC.  Anyone who knows anything about Washington knows that having someone in the room makes all the difference, whether early in the markup process, in the final hectic hours when decisions about tens or hundreds or millions of dollars are made in literally seconds, or in the complex negotiations about legislative text which can often have far greater significance and impact than the participants realize.  So having a group of Congresspeople who care enough to inform themselves is beyond value.  Moreover, the creation of the caucus will signal the arrival, or rather the re-arrival and resuscitation of an issue too long in the background for the nation as a whole.

It is particularly appropriate (and moving to some of us) that Congressman Kennedy is the one taking the lead on this.  Readers of this blog will recall that I previously shared in this space the speech on access to justice his grandfather, Robert Kennedy, as attorney General gave in 1965.  As I wrote when I posted that speech, almost everything we are doing now was foreshadowed there.  (The main exception being using technology for access to justice.)

One point the Congressman made, which is rarely understood or addressed, was the absolute artificiality of the current almost complete barrier between civil and criminal access to justice.  That he explicitly addressed this issue — often a bit of a third rail in both defender and community based legal aid groupings — suggests that he is willing to take a broad look at our whole system.  That, surely, is in his genes.

P.S.  I should add that the Symposium on Making Justice Accessible at which the Congressman spoke, was held at the American Academy of Arts and Sciences under rules that permit attribution only with the consent of the speaker.  I have obtained this consent from Congressman Kennedy.

Posted in Congress, Defender Programs, Legal Aid | 2 Comments

Answering a Law Professor’s Worry that Free Online Access to Caselaw Will not Help Access to Justice

Brian Sheppard, who teaches at Seton Hall Law School, in an interesting blog post on Bloomberg, raises the question whether the Harvard Law School digitization project I blogged about recently, might not really help access to justice.

His worry is that neither the search tools nor visualization tools intended for the project will deal with the reality that drafting search terms is very difficult for nonlawyers, and that most of the cases that come up will not be that relevant, and will be far from the ones on which judges rely.

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Posted in Document Assembly, E-filing, Libraries, Self-Help Services, Technology | 8 Comments

Could We Get to 100% Access Without As Many New Resources As We Now Assume, a Very Rough Analysis?

It’s a truism and an article of faith in the access to justice community that the only way to get to 100% access to justice is a massive infusion of money. It might well be true, but try this mental exercise:

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Posted in Access to Counsel, Access to Justice Generally, Budget Issues, Court Management, Legal Aid, Research and Evalation, Rules Reform, Self-Help Services, Simplification, Systematic Change | 5 Comments